NATIONAL SEMICONDUCTOR CORPORATION CREDIT AGREEMENT (MULTICURRENCY) Dated as of October 30, 2000 BANK OF AMERICA, N.A.
Exhibit
10.25
EXECUTION
COPY
NATIONAL
SEMICONDUCTOR CORPORATION
__________________________________
$35,000,000
CREDIT
AGREEMENT (MULTICURRENCY)
Dated as
of October 30, 2000
__________________________________
BANK
OF AMERICA, N.A.
SF:145015.1
TABLE
OF CONTENTS
Page
ARTICLE
I. DEFINITIONS
.........................................................................................1
SECTION
1.01 Defined
Terms ...............................................................................1
SECTION
1.02 Other
Definitional
Provisions .............................................14
SECTION
1.03 Terms
Generally ....................................................................14
SECTION
1.04 Accounting
Terms;
GAAP .................................................15
ARTICLE
II. THE
CREDITS ......................................................................................15
SECTION
2.01 The
Revolving
Commitment ...............................................15
SECTION
2.02 The
Loan
Facility. .................................................................16
SECTION
2.03 The
Letter of Credit
Facility. ...............................................18
SECTION
2.04 The
Acceptance
Facility. ....................................................22
SECTION
2.05 The
Other
Credits. ................................................................24
SECTION
2.06 Mandatory
Prepayments ....................................................25
SECTION
2.07 Guaranty ................................................................................25
SECTION
2.08 Optional
Commitment Reduction .......................................25
SECTION
2.09 Fees. .......................................................................................25
SECTION
2.10 Computation
of Fees and Interest. ....................................25
SECTION
2.11 Payments
by the
Borrowers. ..............................................26
ARTICLE
III. TAXES,
ILLEGALITY AND YIELD PROTECTION .....................26
SECTION
3.01 Taxes. ....................................................................................26
SECTION
3.02 Illegality. ...............................................................................27
SECTION
3.03 Increased
Costs and Reduction of Return. .....................28
SECTION
3.04 Funding
Losses ...................................................................28
SECTION
3.05 Inability
to Determine
Rates ..............................................29
SECTION
3.06 Certificates
of
Bank .............................................................29
SECTION
3.07 Survival .................................................................................29
ARTICLE
IV. CONDITIONS
PRECEDENT ............................................................29
SECTION
4.01 Conditions
to Initial
Credits ..............................................29
SECTION
4.02 Conditions
to All
Credits ...................................................30
ARTICLE
V. REPRESENTATIONS
AND WARRANTIES .................................31
SECTION
5.01 Representations
and Warranties ......................................31
ARTICLE
VI. COVENANTS ....................................................................................34
SECTION
6.01 Reporting
Covenants .........................................................34
SECTION
6.02 Financial
Covenants ...........................................................35
SECTION
6.03 Additional
Affirmative Covenants ...................................36
SECTION
6.04 Negative
Covenants ...........................................................38
SF:145015.1
i.
Page
ARTICLE
VII. EVENTS
OF
DEFAULT ......................................................40
SECTION
7.01 Events
of
Default ................................................................40
SECTION
7.02 Effect
of Event of Default .................................................
42
ARTICLE
VIII. MISCELLANEOUS ..........................................................................42
SECTION
8.01 Obligations
of the
Bank ....................................................42
SECTION
8.02 Joint
and Several
Obligations ..........................................42
SECTION
8.03 Amendments
and Waivers ...............................................42
SECTION
8.04 Notices. ................................................................................43
SECTION
8.05 No
Waiver; Cumulative
Remedies. ..................................44
SECTION
8.06 Expenses ..............................................................................44
SECTION
8.07 Indemnity .............................................................................45
SECTION
8.08 Headings ..............................................................................45
SECTION
8.09 Successors
and
Assigns ...................................................45
SECTION
8.10 Assignments,
Participations, Etc. ....................................46
SECTION
8.11 Confidentiality ....................................................................46
SECTION
8.12 Set-off ..................................................................................47
SECTION
8.13 Counterparts .......................................................................47
SECTION
8.14 Severability .........................................................................47
SECTION
8.15 Judgment
Currency. ..........................................................47
SECTION
8.16 Governing
Law and Jurisdiction. ....................................48
SECTION
8.17 WAIVER
OF JURY TRIAL ..............................................49
SECTION
8.18 Entire
Agreement ..............................................................49
SECTION
8.19 Inconsistency ....................................................................49
SECTION
8.20 No
Third Parties
Benefited ..............................................49
SECTION
8.21 Effect
on Prior
Agreement ...............................................50
EXHIBITS
EXHIBIT
A Form
of Guaranty
EXHIBIT
B
Form of Compliance Certificate
SF:145015.1
ii.
CREDIT
AGREEMENT (MULTICURRENCY)
This
CREDIT AGREEMENT (MULTICURRENCY) is entered into as of October 30, 2000, between
NATIONAL SEMICONDUCTOR CORPORATION, a Delaware corporation (the “Company”), and BANK
OF AMERICA, N.A. (the “Bank”).
WHEREAS,
the Bank has agreed to make available to the Company and certain of its
subsidiaries a revolving credit facility with letter of credit subfacility upon
the terms and conditions set forth in this Agreement;
NOW,
THEREFORE, in consideration of the mutual agreements, provisions and covenants
contained herein, the parties hereto hereby agree as follows:
ARTICLE
I.
DEFINITIONS
SECTION
1.01 Defined
Terms. As used in this Agreement (including the recitals
hereto), the following terms have the following meanings:
“Acceptance Agreement”
means a document or agreement in form and substance satisfactory to the Bank
pursuant to which the Company or any of its Subsidiaries is obligated to the
Bank in connection with any Acceptances.
“Acceptance
Obligations” means any and all Obligations arising under any Acceptance
Agreement or otherwise in connection with any Acceptance.
“Acceptances” has the
meaning specified in Section
2.04(b).
“Affiliate” means any
Person which, directly or indirectly, controls, is controlled by or is under
common control with another Person. A Person shall be deemed to control another
Person if such Person possesses, directly or indirectly, the power (i) to vote
50% or more of the securities having ordinary voting power of the election of
directors of such Person, or (ii) to direct or cause the direction of the
management and policies of such Person, whether through the ownership of voting
securities, membership interests or by contract or otherwise.
“Agreement” means this
Credit Agreement (Multicurrency).
“Amendment
Application” means a written request by a Borrower to the Bank pursuant
to Section
2.03(e).
“Applicable Margin”
means (i) with respect to Base Rate Loans, 0% per annum; and (ii) with respect
to Offshore Rate Loans, 1.125% per annum.
“Attorney Costs” means
and includes all fees and disbursements of any law firm or other external
counsel.
SF:145015.1
1.
“Availability Period”
means the period commencing on the Closing Date to but excluding the Revolving
Termination Date.
“Bank” means Bank of
America, N.A., a national banking association, and its successors and
assigns.
“Bankruptcy Code”
means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et
seq.)
“Base Rate” means, for
any day, the higher of: (a) 0.50% per annum above the latest Federal Funds Rate;
and (b) the rate of interest in effect for such day as publicly announced from
time to time by the Bank as its “reference rate.” (The “reference rate” is a
rate set by the Bank based upon various factors including the Bank’s costs and
desired return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or below
such announced rate.) Any change in the reference rate announced by the Bank
shall take effect at the opening of business on the day specified in the public
announcement of such change.
“Base Rate Loan” means
a Loan that bears interest based on the Base Rate.
“Borrower” means, with
respect to any Credit, the Company or Guaranteed Subsidiary to or for the
account of which such Credit is provided.
“Borrowing” means a
borrowing hereunder consisting of Loans made to the Company or any of its
Subsidiaries on the same day by the Bank pursuant to Section 2.02
hereof.
“Business Day”, means
any day other than a Saturday, Sunday or other day on which commercial banks in
New York City or San Francisco are authorized or required by law to close and,
if the applicable Business Day relates to any Offshore Rate Loan or Local
Currency Loan, means such a day on which dealings are carried on in the offshore
interbank market or in the applicable Local Currency market, as the case may
be.
“Change of Control”
means the occurrence of either of the following: (i) any “person” (as such term
is used in subsections 13(d) and 14(d) of the Exchange Act) or group of persons
on or after the Closing Date, becomes the “beneficial owner” (as defined in Rule
13d-3 under said Act), directly or indirectly, of securities of a corporation
representing 50% or more of the combined voting power of the Company’s
then-outstanding voting securities, or (ii) the existing directors of the
Company for any reason cease to constitute a majority (excluding vacant seats)
of the Company’s board of directors. “Existing directors” means (x) individuals
constituting the Company’s board of directors on the Closing Date, and (y) any
subsequent director whose election or appointment by the board of directors or
nomination for election by the Company’s shareholders was approved by the
directors then in office, which directors either were directors on the Closing
Date or whose election or nomination for election was previously so
approved.
SF:145015.1
2.
“Closing Date” means
the date on which the conditions precedent set forth in Section 4.01 are
satisfied or waived by the Bank on such date.
“Code” means the
Internal Revenue Code of 1986, as amended.
“Commitment” means
Thirty-Five Million Dollars ($35,000,000), or the Equivalent Amount thereof, as
such amount may be reduced from time to time pursuant to Section
2.08.
“Company” has the
meaning set forth in the recital of parties to this Agreement.
“Compliance
Certificate” means a certificate of a Responsible Officer of the Company,
in substantially the form of Exhibit B, with such
changes thereto as the Bank may from time to time reasonably
request.
“Consolidated Current
Liabilities” means, as of any date of determination, the current
liabilities of the Company and its Subsidiaries on a consolidated basis, as
determined in accordance with GAAP.
“Consolidated Net
Income” means, for any period, the net income of the Company and its
Subsidiaries on a consolidated basis for such period taken as a single
accounting period, as determined in accordance with GAAP.
“Consolidated Quick
Assets” means, as of any date of determination, the sum of (i) cash, (ii)
cash equivalents, (iii) net trade accounts receivable and (iv) marketable
securities not classified as long term assets, in each case of the Company and
its Subsidiaries on a consolidated basis, determined in accordance with
GAAP.
“Consolidated Tangible Net
Worth” means, as of any date of determination, for the Company and its
Subsidiaries on a consolidated basis, Shareholders’ Equity on that date minus Intangible
Assets on that date.
“Core Business” means
any business or activity (a) in the semiconductor manufacturing industry, or (b)
in which the Company or any of its Subsidiaries are engaged on the date of this
Agreement.
“Credit Documents”
means this Agreement, together with the Guaranty and any and all Letters of
Credit, Letter of Credit Agreements, Acceptances, Acceptance Agreements, Other
Credit Documents, and other instruments, certificates, documents and agreements
at any time executed or delivered by the Company or any of its Subsidiaries
pursuant to this Agreement or any other Credit Document.
“Credits” means any
loan, extension of credit, or other financial accommodation extended by the Bank
to or for the benefit of the Company or any of its Subsidiaries at any time
pursuant to this Agreement or any other Credit Document, including any and all
Loans, Letters of Credit, Acceptances and Other Credits from time to time
outstanding.
SF:145015.1
3.
“Default” means any
event or condition that, with the giving of notice, lapse of time, or both,
would (if not cured or otherwise remedied) constitute an Event of
Default.
“Dollars,” “dollars” and “$” each mean lawful
money of the United States of America.
“Draft” has the
meaning specified in Section
2.04(b).
“Eligible Assignee”
means all (a) a commercial bank organized under the laws of the United States,
or any state thereof, and having a combined capital and surplus of at least
$200,000,000; (b) a commercial bank organized under the laws of any other
country which is a member of the Organization for Economic Cooperation and
Development (the “OECD”), or a
political subdivision of any such country, and having a combined capital and
surplus of at least $200,000,000, provided that such bank is acting through a
branch or agency located in the United States; and (c) a Person that is
primarily engaged in the business of commercial banking and that is (i) a
subsidiary of the Bank, (ii) a subsidiary of a Person of which the Bank is a
subsidiary, or (iii) a Person of which the Bank is a subsidiary.
“Environmental Claims”
means all claims, however asserted, by any Governmental Authority or other
Person alleging potential liability or responsibility for violation of any
Environmental Law, or for release or injury to the environment.
“Environmental Laws”
means all (a) laws, rules, regulations, common law duties, codes and ordinances
and (b) all orders, decrees, injunctions, requests, licenses, permits or
agreements issued, promulgated or entered into by any Governmental Authority and
by or affecting the Company or any Subsidiary, in each case relating to or
imposing liability or standards of conduct concerning public health, safety and
environmental protection matters.
“Equity Securities” of
any Person means (a) all common stock, preferred stock, participations, shares,
partnership interests or other equity interests in such Person (regardless of
how designated and whether or not voting or non-voting) and (b) all warrants,
options and other rights to acquire any of the foregoing, other than convertible
debt securities which have not been converted into common stock, preferred
stock, participations, shares, partnership interests or other equity interests
in such Person.
“Equivalent Amount”
means the equivalent of dollars in a foreign currency calculated at the spot
rate for the purchase of such foreign currency with dollars as quoted by the
Bank in San Francisco, California, at approximately 8:00 a.m. two banking days
(as such days are determined by the Bank with respect to such currency) prior to
the relevant date.
“ERISA” means the
Employee Retirement Income Security Act of 1974, including (unless the context
otherwise requires) any rules or regulations promulgated
thereunder.
“ERISA Affiliate”
means any trade or business (whether or not incorporated) which is under common
control with the Company within the meaning of Section 414(b) or
(c)
SF:145015.1
4.
of the
Code (and Sections 414(m) and (o) of the Code for the purposes of provisions
relating to Section 412 of the Code).
“ERISA Event” means
(a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the
Company or any ERISA Affiliate from a Pension Plan subject to Section 4063 of
ERISA during a plan year in which it was a substantial employer (as defined in
Section 4001(a)(2) of ERISA) or a cessation of operations which is treated as
such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial
withdrawal by the Company or any ERISA Affiliate from a Multiemployer Plan or
notification that a Multiemployer Plan is in reorganization; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Section 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than PBGC premiums
due but not delinquent under Section 4007 of ERISA, upon the Borrower or any
ERISA Affiliate.
“Event of Default” has
the meaning assigned to such term in Section
7.01.
“Evergreen Letter of
Credit” means any Letter of Credit providing for automatic extensions of
its expiry date unless the Bank shall have provided some notice or taken other
specified action to preclude any such further extension.
“Exchange Act” means
the Securities Exchange Act of 1934.
“Financial Officer”
means the chief financial officer, Vice President-Finance or treasurer of the
Company.
“FRB” means the Board
of Governors of the Federal Reserve System, and any Governmental Authority
succeeding to any of its principal functions.
“Further Taxes” means
any and all present or future taxes, levies, assessments, imposts, duties,
deductions, fees, withholdings or similar charges (including, without
limitation, net income taxes and franchise taxes), and all liabilities with
respect thereto, imposed by any jurisdiction on account of amounts payable or
paid pursuant to Section
3.01.
“Governmental
Authority” means the government of the United States of America, any
other nation or any political subdivision thereof, whether state or local, and
any agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Guaranteed
Subsidiaries” means Subsidiaries of the Company designated from time to
time by the Company and acceptable to the Bank, and as to which the Company has
delivered to the Bank, or otherwise authorized or consented to, appropriate
writings or
SF:145015.1
5.
supplements
to the Guaranty such that the Obligations of such Subsidiaries are guaranteed by
the Company pursuant to the Guaranty.
“Guaranty” means that
Continuing Guaranty (Multicurrency) dated as of October 30, 2000, by the
Company in favor of the Bank in the form of Exhibit
A.
“Guaranty Obligation”
means, as applied to any Person, any direct or indirect obligation of that
Person with respect to any Indebtedness, lease, dividend, letter of credit or
other obligation (the “primary obligations”) of another Person (the “primary
obligor”), including any obligation of such Person, whether or not contingent,
(a) to purchase, repurchase or otherwise acquire such primary obligations or any
property constituting direct or indirect security therefor; (b) to advance or
provide funds (i) for the payment or discharge of any such primary obligation,
or (ii) to maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet item, level
of income or financial condition of the primary obligor; (c) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation; or (d) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect thereof. The
amount of any Guaranty Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of which such
Guaranty Obligation is made or, if not stated or if indeterminable, the maximum
reasonably anticipated liability in respect thereof as determined by the Company
in good faith.
“Hazardous Substances”
means any toxic or hazardous substances, materials, wastes, contaminants or
pollutants, including asbestos, PCBs, petroleum products and byproducts, and any
substances defined or listed as “hazardous substances,” “hazardous materials,”
“hazardous wastes” or “toxic substances” (or similarly identified), regulated
under or forming the basis for liability under any applicable Environmental
Law.
“Hostile Acquisition”
means, as to the Company and any Subsidiary, to (a) Purchase or attempt to
Purchase any Person by means of a public debt or equity tender offer or other
unsolicited takeover (or the equivalent thereof in any jurisdiction) or (b)
engage in a proxy contest (or the equivalent thereof in any jurisdiction) for
control of the board of directors (or the functional equivalent thereof) of any
Person, in either case if such action has not been approved and recommended by
the board of directors (or the functional equivalent thereof) of the Person
being acquired or proposed to be acquired or which is the subject of such proxy
contest.
“Indebtedness” of any
Person means, without duplication, (a) all obligations of such Person for
borrowed money or with respect to deposits or advances of any kind, (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, (c) all obligations of such Person upon which interest charges are
customarily paid (excluding deferred compensation obligations owed to current
and former directors, officers and employees), (d) all obligations of such
Person under conditional sale or other title retention agreements relating to
property acquired by such Person, (e) all obligations of such Person in respect
of the deferred purchase price of property or services (excluding current
accounts payable, measured in accordance with GAAP, incurred in the ordinary
course of business), (f) all Indebtedness of
SF:145015.1
6.
others
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise to be secured by) any Lien on property owned or acquired
by such Person, whether or not the Indebtedness secured thereby has been
assumed, (g) all Guaranty Obligations (contingent or otherwise), (h) all
capitalized lease obligations of such Person, (i) all obligations, contingent or
otherwise, of such Person as an account party in respect of letters of credit,
letters of guaranty and similar instruments supporting Indebtedness, (j) all
obligations, contingent or otherwise, of such Person in respect of bankers’
acceptances, (k) all net obligations with respect to Rate Contracts, and (1) all
obligations, contingent or otherwise, with respect to synthetic leases or
securitized assets. The Indebtedness of any Person shall include the
Indebtedness of any other entity (including any partnership in which such Person
is a general partner) to the extent such Person is liable therefor as a result
of such Person’s ownership interest in or other relationship with such entity,
except to the extent the terms of such Indebtedness provide that such Person is
not liable therefor.
“Insolvency
Proceeding” means (i) any case, action or proceeding before any court or
other Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (ii)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors, in each case undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy
Code.
“Intangible Assets”
means assets that are required to be disclosed as intangible assets in
accordance with GAAP on the Company’s balance sheet, including customer lists,
goodwill, computer software, copyrights, trade names, trade marks, patents,
unamortized deferred charges, unamortized debt discount and capitalized research
and development costs.
“Interest Payment
Date” means, with respect to any Loan other than a Base Rate Loan or
Local Currency Loan, the last day of each Interest Period applicable to such
Loan, and with respect to Base Rate Loans, the last day of each calendar month,
and with respect to each Local Currency Loan, the last day of each calendar
month or such other date agreed to by the Bank in writing in any Credit Document
relating to such Local Currency Loan; provided, however,
that if any Interest Period for an Offshore Rate Loan exceeds three (3) months,
interest shall also be paid on the date which falls three (3) months after the
beginning of such Interest Period.
“Interest Period”
means, with respect to any Offshore Rate loan, the period commencing on the
Business Day such Loan is disbursed and ending on the date one, three or six
months thereafter, as selected in the Notice of Borrowing;
provided
that:
(i) the
last day of each Interest Period pertaining to an Offshore Rate Loan shall be
determined in accordance with the practices of the offshore dollar interbank
market as from time to time in effect; and
SF:145015.1
7.
(ii) no
Interest Period shall extend beyond the Revolving Termination Date.
“L/C-Related
Documents” has the meaning specified in Section
2.03(f).
“Letter of Credit”
means any Trade Letter of Credit or Standby Letter of Credit issued by the Bank
for the account of the Company or any of its Subsidiaries pursuant to Section 2.03 and any
Prior Letter of Credit.
“Letter of Credit
Agreement” means any letter of credit application and agreement,
reimbursement agreement, or similar document or agreement, in form and substance
satisfactory to the Bank, executed by the Company or any of its Subsidiaries in
favor of the Bank in connection with the issuance of any Letter of
Credit.
“Letter of Credit
Application” has the meaning specified in Section
2.03(c)(ii).
“Letter of Credit
Obligations” means any Obligations arising out of any Letter of Credit
Agreement or otherwise arising pursuant to any Letter of Credit.
“Lien” means, with
respect to any property or asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, assignment, encumbrance or security interest in, on or of such
asset, and (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset, or
the filing of any financing statement naming the owner of the asset to which
such lien relates as debtor (other than protective filings with respect to
operating leases ) or any agreement to do any of the foregoing.
“Loan” means any loan
made by the Bank to the Company or any of its Subsidiaries pursuant to Section
2.02.
“Local Currency” has
the meaning specified in Section
2.02(a).
“Local Currency Loan”
has the meaning specified in Section
2.02(a).
“Margin Stock” means
“margin stock” as defined in Regulation T, U or X or the FRB.
“Material Adverse
Effect” means a material adverse change in, or a material adverse effect
on any of (a) the business, assets, operations, prospects or condition,
financial or otherwise, of the Company or the Company and its Subsidiaries taken
as a whole, (b) the ability of the Company to perform any of its obligations
under any Credit Document to which it is party; or (c) the legality, validity,
binding effect or enforceability of any Credit Document.
“Multiemployer Plan”
means a “multiemployer plan”, within the meaning of Section 4001(a)(3) of ERISA,
to which the Company or any ERISA Affiliate makes, is making, or is obligated to
make contributions or, during the preceding three calendar years, has made, or
has been obligated to make, contributions.
SF:145015.1
8.
“Net Proceeds” means,
with respect to any sale or issuance of any Equity Security or other security by
any Person, the aggregate consideration received by such Person from such sale
or issuance minus the actual
amount of fees and commissions payable in connection therewith to Persons other
than such Person or any Affiliate of such Person.
“Notice of Borrowing”
means a notice given by a Borrower to the Bank pursuant to Section
2.02(b).
“Obligations” means
all Loans, and other Indebtedness, advances, debts, liabilities, obligations,
covenants and duties owing by the Company or any of its Subsidiaries to the
Bank, or any other Person required to be indemnified under any Credit Document,
of any kind or nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, arising under this Agreement, under any other
Credit Document or in connection with any Credit, whether or not for the payment
of money, whether arising by reason of an extension of credit, loan, letter of
credit (whether or not drawn), acceptance (whether or not matured), bond or
guaranty (whether or not paid upon), indemnification or in any other manner,
whether direct or indirect, absolute or contingent, due or to become due,
disputed or undisputed, now existing or hereafter arising and however acquired.
The amount of any Obligation in respect of any undrawn letter of credit,
unmatured banker’s acceptance, contingent bond or guaranty obligations, or the
like, shall be the stated or face amount of such letter of credit, acceptance,
bond or guaranty, or, if not stated or without face amount, the maximum
potential liability thereunder, as determined by the Bank in good
faith.
“OECD” has the meaning
specified in the definition of “Eligible Assignee.”
“Offshore Currency”
has the meaning specified in Section
2.02(a).
“Offshore Rate” means
for each Interest Period the rate of interest (rounded upward to the nearest
1/100th of one percent) determined pursuant to the following
formula:
Offered Rate
Offshore Rate
= _______________________
1.00 - Reserve
Percentage
Where,
(b) “Offered Rate” means
the rate of interest (rounded upward to the nearest 1/16th of one percent) at
which Dollar deposits for such Interest Period would be offered by Bank’s Grand
Cayman Branch, Grand Cayman, British West Indies, to major banks in the offshore
Dollar interbank markets upon request of such banks at approximately 8:00 a.m.
San Francisco time two Business Days prior to the first day of such Interest
Period; and
(c) “Reserve Percentage”
means for such Interest Period the total (expressed as a decimal rounded upward
to the nearest 1/100th of one percent) of the maximum reserve percentages
(including, but not limited to, marginal, emergency, supplemental, special, and
other reserve percentages) in effect on the first day of such Interest Period as
prescribed by the Federal
SF:145015.1
9.
Reserve
Board for determining the reserves for eurocurrency liabilities to be maintained
by member banks which are required to report on a weekly basis.
“Offshore Rate Loan”
means a Loan for which interest is based on the Offshore Rate.
“Other Credit
Documents” means any instruments, documents and agreements executed or
delivered to the Bank by the Company or any of its Subsidiaries in connection
with any Other Credit.
“Other Credit
Obligations” means any Obligations arising in connection with any Other
Credits.
“Other Credits” means
extensions of credit or other financial accommodations from time to time
extended to the Company or any of the Company’s Subsidiaries by the Bank
pursuant to Section
2.05 or pursuant to the Prior Agreement, and evidenced by documentation
in form and substance satisfactory to the Bank, other than Loans, Letters of
Credit and Acceptances; such other credit accommodations to include shipside
bonds, overdrafts, and such other credit facilities or financial accommodations
as may be agreed to from time to time between the Bank and the Company or any
applicable Subsidiary of the Company.
“Other Taxes” means
any present or future stamp, court or documentary taxes or any other excise or
property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Agreement or any other
Credit Documents.
“Outstanding Amount”
has the meaning specified in Section
2.01.
“PBGC” mean the
Pension Benefit Guaranty Corporation, or any successor there to.
“Pension Plan” means a
pension plan (as defined in Section 3(2) of ERISA) subject to Title IV of ERISA
which the Company sponsors, maintains, or to which it makes, is making, or is
obligated to make contributions, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five (5) plan years.
“Permitted Guarantees”
means guarantees, surety support or standby letters of credit (including
open-ended guarantees for custom duties, VAT deferment, rent, utilities and
other offshore regulatory authorities) undertaken or issued by foreign branch
offices of the Bank (a) pursuant to documentation in form and substance
satisfactory to the Bank guaranteeing or otherwise supporting indebtedness or
other obligations of the Company or of a Guaranteed Subsidiary of a specified
maximum monetary amount, (b) having an expiration date not later than is
reasonably estimated to be required to complete the underlying transaction or
having no stated expiration date if so required by applicable Requirements of
Law to which the Company
SF:145015.1
10.
or such
Subsidiary is subject, and (c) in compliance with all applicable Requirements of
Law, including Regulation K of the Federal Reserve Board.
“Permitted Liens”
means:
(i) Liens
in favor of the Bank;
(ii) Liens
for taxes, fees, assessments or other governmental charges or levies, either not
delinquent or being contested in good faith by appropriate proceedings and which
are adequately reserved for in accordance with GAAP;
(iii) Liens
of materialmen, mechanics, warehousemen, carriers or employees or other like
Liens arising in the ordinary course of business and securing obligations either
not delinquent or being contested in good faith by appropriate proceedings and
which are adequately reserved for in accordance with GAAP and which do not in
the aggregate materially impair the use or value of the property or risk the
loss or forfeiture of title thereto;
(iv) easements,
rights of way, servitudes or zoning or building restrictions and other minor
encumbrances on real property and irregularities in the title to such property
which do not in the aggregate materially impair the use or value of such
property or risk the loss or forfeiture of title thereto;
(v) Liens
arising solely by virtue of any statutory or common law provision relating to
banker’s liens, rights of set-off or similar rights and remedies as to deposit
accounts or other funds maintained with a creditor depository institution; provided that (a)
such deposit account is not a dedicated cash collateral account and is not
subject to restrictions against access by the Company or any Subsidiary in
excess of those set forth by regulations promulgated by the FRB, and (b) such
deposit account is not intended by the Company or any Subsidiary to provide
collateral to the depository institution;
(vi) Liens
(other than any Lien imposed by ERISA) consisting of pledges or deposits
required in the ordinary course of business in compliance with worker’s
compensation, unemployment insurance and other social security laws or
regulations;
(vii) Liens
securing (A) the non-delinquent performance of bids, trade contracts (other than
for Indebtedness), leases (other than capital leases), statutory obligations,
surety and appeal bonds, performance bonds and other obligations of like nature
incurred in the ordinary course of business, provided that all
such Liens in the aggregate would not (even if enforced) cause a Material
Adverse Effect;
(viii) purchase
money security interests in real property, improvements thereto or equipment
hereafter acquired (or, in the case of improvements, constructed) by the Company
or any Subsidiary, provided that (A) any
such Lien attaches to such real property, improvements or equipment concurrently
with or within 30 days after the acquisition or construction thereof, (B) such
Lien attaches solely to the real property, improvements or equipment so acquired
or constructed, and (C) the principal amount of the
SF:145015.1
11.
Indebtedness
secured thereby does not exceed 100% of the cost of such real property,
improvements or equipment;
(ix) Liens
on assets of any Person that becomes a Subsidiary after the date of this
Agreement; provided that such Liens existed at the time of such acquisition of
such Person and were not created in anticipation thereof or for purposes of
circumventing this Agreement; and
(x) Liens
not otherwise permitted by paragraphs (i) through (ix) above; provided, that the
aggregate amount of all Indebtedness or other obligations secured by such Liens
(whether matured or unmatured, contingent or otherwise) shall at no time exceed
an amount equal to 20% of the Borrower’s Total Assets.
“Plan” means an
employee benefit plan (as defined in Section 3(3) of ERISA) which the Company
sponsors or maintains or to which the Company makes, is making, or is obligated
to make contributions and includes any Pension Plan.
“Premises” means any
and all real property including all buildings and improvements now or hereafter
located thereon and all appurtenances thereto, now or hereafter owned, leased,
occupied or used by the Company and its Subsidiaries.
“Prior Acceptances”
has the meaning specified in Section
2.04(g).
“Prior Agreement”
means that Credit Agreement (Multicurrency) dated as of December 19, 1997 by and
between the Company and the Bank, as subsequently amended or
extended.
“Prior Letters of
Credit” has the meaning specified in Section
2.03(d).
“Prior Other
Obligations” has the meaning specified in Section
2.05(b).
“Purchase” means any
transaction, or any series of related transactions, by which the Company or any
of its Subsidiaries (a) acquires any ongoing business or all or substantially
all of the assets of any firm, corporation or division thereof, whether through
purchase of assets, merger or otherwise, or (b) directly or indirectly acquires
(in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage or voting power) of the outstanding
partnership or membership interests of a partnership or limited liability
company, respectively.
“Rate Contracts” means
interest rate swaps, caps, floors and collars, currency swaps, or other similar
financial products designed to provide protection against fluctuations in
interest, currency or exchange rates.
SF:145015.1
12.
“Reportable Event”
means any of the events set forth in Section 4043(c) of ERISA or the regulations
thereunder, other than any such event for which the 30-day notice requirement
under ERISA has been waived in regulations issued by the PBGC.
“Requirement of Law”
means, as to any Person, any law (statutory or common), treaty, rule or
regulation or determination of an arbitrator or of a Governmental Authority, in
each case applicable to or binding upon the Person or any of its property or to
which the Person or any of its property is subject.
“Responsible Officer”
means, with respect to any Person, the chief executive officer, the president,
the chief financial officer or the treasurer of such Person, or any other senior
officer of such Person having substantially the same authority and
responsibility; or, with respect to compliance with financial covenants, the
chief financial officer or the treasurer of any such Person, or any other senior
officer of such Person involved principally in the financial administration or
controllership function of such Person and having substantially the same
authority and responsibility.
“Revolving Termination
Date” means October 29, 2001, or, if such date is not a Business Day, the
last Business Day prior to such date.
“Shareholders’ Equity”
means, as of any date of determination for the Company and its Subsidiaries on a
consolidated basis, shareholders’ equity as of that date determined in
accordance with GAAP.
“Solvent” means, as to
any Person at any time, that (i) the fair value of the property of such Person
is greater than the amount of such Person’s liabilities (including disputed,
contingent and unliquidated liabilities) as such value is established and
liabilities evaluated for purposes of Section 101(32) of the United States
Bankruptcy Code (11 U.S.C. § 101 et seq.); (ii) the present fair saleable
value of the property of such Person is not less than the amount that will be
required to pay the probable liability of such Person on its debts as they
become absolute and matured; (iii) such Person is able to realize upon its
property and pay its debts and other liabilities (including disputed, contingent
and unliquidated liabilities) as they mature in the normal course of business;
(iv) such Person does not intend to, and does not believe that it will, incur
debts or liabilities beyond such Person’s ability to pay as such debts and
liabilities mature; and (v) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person’s property would constitute unreasonably small capital.
“Standby Letters of
Credit” means (i) any and all “clean” or documentary standby letters of
credit from time to time issued by the Bank and outstanding for the account of
the Company or any of the Company’s Subsidiaries and (ii) any and all guarantees
(including Permitted Guarantees) executed or issued from time to time by the
Bank through any foreign branch or office of the Bank with respect to debts or
obligations of the Company or any Subsidiary of the Company.
SF:145015.1
13.
“Subsidiary” of a
Person means any corporation, association, partnership, limited liability
company, joint venture or other business entity of which more than 50% of the
voting stock, membership interests or other equity interests (in the case of
Persons other than corporations), is owned or controlled directly or indirectly
by the Person; or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a “Subsidiary” refer to a Subsidiary of the Company.
“Swap Termination
Value” means, in respect of any one or more Rate Contracts, after taking
into account the effect of any legally enforceable netting agreement relating to
such Rate Contracts, (i) for any date on or after the date such Rate Contracts
have been closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (ii) for any date prior to the date
referenced in clause (i), the amount(s) determined as the ▇▇▇▇-to-market
value(s) for such Rate Contracts, as determined based upon one or more
mid-market or other readily available quotations provided by any recognized
dealer in such Rate Contracts (which may include the Bank).
“Taxes” means any and
all present or future taxes, levies, assessments, imposts, duties, deductions,
deposits, fees, withholdings or similar charges, and all liabilities with
respect thereto, excluding, in the case of the Bank, taxes imposed on or
measured by its net income by the jurisdiction (or any political subdivision
thereof) under the laws of which the Bank is organized or maintains a lending
office.
“Total Assets” means
with respect to any Person as of any date of determination, the total assets of
such Person and its Subsidiaries determined on a consolidated basis in
accordance with GAAP.
“Trade Letters of
Credit” means any commercial documentary trade letters of credit issued
by the Bank pursuant to this Agreement for the account of the Company or any of
its Subsidiaries for the purchase of goods in the ordinary course of
business.
“Unfunded Pension
Liability” means the excess of a Pension Plan’s benefit liabilities,
under Section 4001(a)(16) of ERISA, over the current value of that Pension
Plan’s assets, determined in accordance with the assumptions used for funding
the Pension Plan pursuant to Section 412 of the Code for the applicable plan
year.
“United States” and
“U.S.” mean the
United States of America.
“Wholly-Owned
Subsidiary” means any corporation in which (other than directors’
qualifying shares required by law) 100% of the capital stock of each class
having ordinary voting power, and 100% of the capital stock of every other
class, in each case, at the time as of which any determination is being made, is
owned, beneficially and of record, by the Company, or by one or more of the
other Wholly-Owned Subsidiaries, or both.
SECTION
1.02 Other Definitional
Provisions. Unless otherwise specified herein or therein, all
terms defined in this Agreement shall have the defined meanings when used in any
certificate or other document made or delivered pursuant hereto. Terms
(including uncapitalized
SF:145015.1
14.
terms)
not otherwise defined herein that are defined in the California Uniform
Commercial Code shall have the meanings therein described.
SECTION
1.03 Terms
Generally. The definitions of terms herein shall apply equally
to the singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words “include,” “includes” and “including” shall be deemed to
be followed by the phrase “without limitation.” The word “will” shall be
construed to have the same meaning and effect as the word “shall.” Unless the
context requires otherwise (a) any definition of or reference to any agreement,
instrument or other document herein shall be construed as referring to such
agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person’s successors and
assigns, (c) the words “herein,” “hereof and hereunder,” and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and
Sections of, and Exhibits and Schedules to, this Agreement, (e) references to
any statute or regulation includes all applicable regulations and all amendments
or replacements thereto, and (e) the words “asset” and “property” shall be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including all securities,
accounts and contract rights. This Agreement and other Credit Documents may use
several different limitations, tests or measurements to regulate the same or
similar matters. All such limitations, tests and measurements are cumulative and
shall each be performed in accordance with their terms. Unless otherwise
expressly provided, any reference to any action of the Bank by way of consent,
approval or waiver shall be deemed modified by the phrase “in its sole
discretion.” This Agreement and the other Credit Documents are the result of
negotiations among and have been reviewed by counsel to the Bank, the Company
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Bank merely because of its involvement in
their preparation.
SECTION
1.04 Accounting Terms;
GAAP. Except as otherwise expressly provided herein, all terms
of an accounting or financial nature shall be construed in accordance with GAAP,
as in effect from time to time; provided that, if the
Company notifies the Bank that the Company requests an amendment to any
provision hereof to eliminate the effect of any change occurring after the date
hereof in GAAP or in the application thereof on the operation of such provision
(or if the Bank requests an amendment to any provision hereof for such purpose),
regardless of whether any such notice is given before or after such change in
GAAP or in the application thereof, then such provision shall be interpreted on
the basis of GAAP as in effect and applied immediately before such change shall
have become effective until such notice shall have been withdrawn or such
provision amended in accordance herewith. References herein to “fiscal year” and
“fiscal quarter” refer to such fiscal periods of the Company.
SF:145015.1
15.
ARTICLE
II.
THE
CREDITS
SECTION
2.01 The Revolving
Commitment. From time to time during the Availability Period,
upon the terms and subject to the conditions hereof, the Bank agrees to extend
credit to the Company and the Guaranteed Subsidiaries consisting of Loans,
Acceptances, Letters of Credit and Other Credits; provided, however,
that the aggregate principal amount of Loans and the aggregate amount of
Acceptance Obligations, Letter of Credit Obligations, and Other Credit
Obligations of the Company and all of its Subsidiaries combined, or the
Equivalent Amount thereof (together, the “Outstanding Amount”),
shall not at any time exceed the Commitment. The Credits are revolving credits
and, subject to the terms and conditions hereof, may be extended, repaid or
otherwise retired, and re-extended from time to time.
SECTION
2.02 The Loan
Facility.
(a) The
Loans. The Bank agrees, on the terms and conditions
hereinafter set forth, to make Loans to the Company and the Guaranteed
Subsidiaries from time to time, on any Business Day during the Availability
Period, provided that the
aggregate principal amount of Loans made and outstanding by the Bank from time
to time to all Borrowers, together with all other Outstanding Amounts existing
at such time, or the Equivalent Amount thereof, shall not exceed the Commitment.
Loans may be made in dollars, or in a lawful currency other than dollars that
(A) is freely transferable and convertible into dollars and traded in the
offshore interbank currency markets at the time of such Loan (“Offshore Currency”)
or (B) is available at a branch of the Bank located in a country other than the
United States and is the legal tender of that country where the branch is
located (“Local
Currency”). The interest rate for each dollar Loan will be related to the
Base Rate or the Offshore Rate. The interest rate for each Loan denominated in
an Offshore Currency will be related to the Offshore Rate. The interest rate for
each Loan denominated in a Local Currency (“Local Currency Loan”)
will be agreed upon at the time of each Loan and shall be as set forth in the
applicable Credit Document. The Bank has no obligation to make any Local
Currency Loan unless the Bank and the Borrower have agreed, in their discretion,
at the time of the request for any such Loan, as to the currency, amount,
principal payment date, interest rate, interest payment dates, prepayment and
overdue payment terms, reserve and tax provisions and other applicable terms and
provisions with respect to any such Loan. The Borrower shall execute such
additional documentation as the Bank may require relating to any Local Currency
Loan.
(b) Procedure for
Borrowing. Each Borrowing shall be made upon the irrevocable
written notice (including notice by telecopy confirmed immediately by a
telephone call) of the Borrower pursuant to a Notice of Borrowing in form and
substance satisfactory to the Bank (a “Notice of
Borrowing”), which notice must be received by the Bank prior to 12:00
noon (San Francisco time) (i) three (3) Business Days prior to the requested
borrowing date, in the case of Offshore Rate Loans, and (ii) two (2) Business
Days prior to the requested borrowing date, in the case of Base Rate Loans,
specifying:
SF:145015.1
16.
(i) the
amount of the Borrowing, which shall be in an aggregate minimum principal amount
of One Million dollars ($1,000,000) or any multiple of Five Hundred Thousand
dollars ($500,000) in excess thereof;
(ii) the
requested borrowing date, which shall be a Business Day;
(iii) whether
the Borrowing is to be comprised of Offshore Rate Loans or Base Rate
Loans;
(iv) whether
such Loans are to be denominated in U.S. dollars, Offshore Currency or Local
Currency; and
(v) the
duration of the Interest Period applicable to such Loans included in such
notice. If the Notice of Borrowing shall fail to specify the duration of the
Interest Period for any Borrowing comprised of Offshore Rate Loans, such
Interest Period shall be three months.
Each
Borrowing with respect to any Local Currency Loan shall be undertaken in
accordance with the procedures from time to time specified by the applicable
branch or office of the Bank.
(c) Optional
Prepayments. Subject to Section 3.04, the
applicable Borrower may, at any time or from time to time, upon at least three
(3) Business Days’ notice to the Bank, prepay Loans in whole or in part, in
amounts of Five Hundred Thousand dollars ($500,000) (or the Equivalent Amount)
or any multiple of Five Hundred Thousand dollars ($500,000) (or the Equivalent
Amount). Such notice of prepayment shall specify the date and amount of such
prepayment and whether such prepayment is of Base Rate Loans, Offshore Rate
Loans, or Local Currency Loans or any combination thereof. Such notice shall not
thereafter be revocable by the Borrower. If such notice is given, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein, together with accrued interest
to each such date on the amount prepaid and the amounts required pursuant to
Section
3.04.
(d) Repayment of
Principal. The Company agrees to repay or cause the applicable
Borrower to repay to the Bank the principal amount of the Loans (i) with respect
to any Loan other than a Base Rate Loan or a Local Currency Loan, on the earlier
of (A) the last day of the applicable Interest Period and (B) the date six
months after the Revolving Termination Date; (ii) with respect to any Local
Currency Loan, on the earlier of (A) the applicable maturity date and (B) the
date six months after the Revolving Termination Date; and (iii) with respect to
any Base Rate Loan, on the Revolving Termination Date.
(e) Interest on
Loans. Unless otherwise provided in applicable Credit
Documents with respect to Local Currency Loans:
SF:145015.1
17.
(i) Subject
to subsection
2.02(e)(iii), each Loan shall bear interest on the outstanding principal
amount thereof from the date when made until it becomes due at a rate per annum
equal to the Offshore Rate or the Base Rate, as the case may be, plus the Applicable
Margin;
(ii) Interest
on each Loan shall be due and payable by the Company or the Borrower in arrears
on each Interest Payment Date. Interest shall also be due and payable by the
Company or the Borrower on the date of any prepayment of an Offshore Rate Loan
pursuant to Section
2.02(c) and 2.06 for the portion
of the Loans so prepaid and upon payment (including prepayment) in full thereof
and, after the occurrence and during the continuance of any Event of Default,
interest shall be due and payable on demand; and
(iii) During
the continuation of any Event of Default or after acceleration, the Company
shall pay or cause any and all applicable Borrowers to pay interest (after as
well as before judgment to the extent permitted by law) on the principal amount
of all Loans due and unpaid, at a rate per annum that is determined by
increasing the Applicable Margin then in effect, or, with respect to any Local
Currency Loan, the interest rate then in effect, by two percent (2%) per annum;
provided,
however, that, on and after the expiration of the Interest Period applicable to
any Offshore Rate Loan outstanding on the date of occurrence of such Event of
Default or acceleration, the principal amount of such Loan shall, during the
continuation of such Event of Default or after acceleration, bear interest at a
rate per annum equal to the Base Rate plus two percent
(2%).
(f) Prior Loans. All
loans made and outstanding under the Prior Agreement as of the Closing Date (the
“Prior Loans”)
will constitute Loans outstanding hereunder, will reduce the unused Commitment
hereunder pro tanto, and from and after the Closing Date will be evidenced by
this Agreement.
SECTION
2.03 The Letter of Credit
Facility.
(a) Availability. On
the terms and subject to the conditions set forth herein, the Bank agrees that
it will, from time to time during the Availability Period, (i) issue Letters of
Credit for the account of any Borrower, (ii) amend any Letters of Credit in
accordance with Section 2.03(e) and
(iii) honor drafts under the Letters of Credit in accordance with the terms
thereof; provided, however,
that the Bank shall be under no obligation to issue any Letter of Credit
if:
(i) (A)
the expiration date of any Trade Letter of Credit is more than one year after
the date of issuance thereof or there is no expiration date, (B) the expiration
date of any Trade Letter of Credit without title documents is more than 180 days
after the date of issuance thereof, (C) the total amount of Letter of Credit
Obligations with respect to such Trade Letter of Credit without title documents
together with the aggregate amount of Letter of Credit Obligations with respect
to all other Trade Letters of Credit (whether or not drawn) without title
documents exceeds $3,000,000 (or the Equivalent Amount thereof), or (D) the
expiration date of any Standby Letter of Credit is more than one year after the
date of issuance thereof or there is no expiration date; provided, however,
that the expiration date of any Standby
SF:145015.1
18.
Letter of
Credit may be in excess of one year after the date of issuance or there may be
no expiration date if (x) the total amount of Letter of Credit Obligations with
respect to such Standby Letter of Credit together with the aggregate amount of
Letter of Credit Obligations with respect to all other Standby Letters of Credit
(whether or not drawn) having expiration dates in excess of one year after date
of issuance or having no expiration dates, does not exceed $10,000,000 (or the
Equivalent Amount thereof), (y) if such Standby Letter of Credit is without an
expiration date, it is either a Permitted Guarantee or an Evergreen Letter of
Credit, and (z) if such Standby Letter of Credit is an Evergreen Letter of
Credit, the total amount of Letter of Credit Obligations with respect to such
Evergreen Letter of Credit together with the aggregate amount of Letter of
Credit Obligations with respect to all other Evergreen Letters of Credit
(whether or not drawn), does not exceed $10,000,000;
(ii) such
Standby Letter of Credit is for the purpose of supporting the issuance of any
letter of credit by any other Person;
(iii) such
Letter of Credit does not provide for drafts or is not otherwise in form and
substance acceptable to the Bank;
(iv) the
face or stated amount of such Letter of Credit together with the sum of all
other Outstanding Amounts, or the Equivalent Amount thereof, exceeds the
Commitment;
(v) any
order, judgment or decree of any Governmental Authority or arbitrator shall
purport by its terms to enjoin or restrain the Bank from issuing such Letter of
Credit or any Requirement of Law applicable to the Bank or any request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Bank shall prohibit, or request that the
Bank refrain from, the issuance of letters of credit generally or such Letter of
Credit in particular or shall impose upon the Bank with respect to such Letter
of Credit any restriction or reserve or capital requirement (for which the Bank
is not otherwise compensated) not in effect on the Closing Date and that the
Bank in good ▇▇▇▇▇ ▇▇▇▇▇ material to it;
(vi) one
or more of the applicable conditions contained in Article IV is not
then satisfied; or
(vii) the
expiration date of such Letter of Credit or the maturity date of any financial
obligation to be supported by such Letter of Credit is more than one year after
the Revolving Termination Date.
(b) Letter of Credit
Agreement. Each Letter of Credit shall be issued pursuant to a
Letter of Credit Agreement or other agreement in form and substance satisfactory
to the Bank.
(c) Issuance
Procedures.
SF:145015.1
19.
(i) Each
Letter of Credit (other than a Letter of Credit issued prior to the Closing
Date) shall be issued upon the irrevocable written request of the Borrower,
received by the Bank, in appropriate form, together with all other documents
requested by the Bank, at least five (5) Business Days (or such shorter time as
the Bank may agree in a particular instance) prior to the proposed date of
issuance.
(ii) Each
request for issuance of a Letter of Credit shall be in writing (including by
telecopy, confirmed immediately in writing delivered by overnight or hand
courier), in form and substance satisfactory to the Bank (the “Letter of Credit
Application”), and shall specify: (i) the proposed date of issuance
(which shall be a Business Day); (ii) the face amount of the Letter of Credit;
(iii) the date of expiration of the Letter of Credit; (iv) the name and address
of the Borrower and the beneficiary thereof; (v) the documents to be presented
by the beneficiary of the Letter of Credit in case of any drawing thereunder;
(vi) the full text of any certificate to be presented by the beneficiary in case
of any drawing thereunder; and (vii) such other matters as the Bank may
request.
(iii) Each
Letter of Credit consisting of guarantees described at clause (ii) of the
definition of Standby Letters of Credit shall be issued pursuant to such
procedures and documentation as may from time to time be required by the issuing
office or branch of the Bank.
(d) Prior Letters of
Credit. All letters of credit and guarantees issued or made by
the Bank for the account of the Company or any of its Subsidiaries pursuant to
the Prior Agreement and that are outstanding as of the Closing Date or as to
which the Bank has not received as of such date reimbursement in full with
respect to any drawings or payments made thereunder (the “Prior Letters of
Credit”), shall constitute additional Letters of Credit under this
Agreement, shall reduce pro tanto the unused Commitment hereunder accordingly
and will be governed by the terms and provisions of this Agreement from and
after the Closing Date, together with any letter of credit application and
agreement or guarantee document or agreement previously executed and delivered
in connection therewith.
(e) Amendment of Letters of
Credit. From time to time during the term of any Letter of
Credit, the Bank shall, upon the written request of the applicable Borrower, in
form and substance satisfactory to the Bank (an “Amendment
Application”), accompanied by payment of an amendment fee as specified
from time to time by the Bank, amend any Letter of Credit; provided that the
Bank shall be under no obligation to amend any Letter of Credit if:
(i) the
face amount thereof is to be increased pursuant to a request received by the
Bank after the Revolving Termination Date;
(ii) the
Bank would have no obligation at such time to issue such Letter of Credit in its
amended form under the terms of this Agreement; or
(iii) the
beneficiary does not accept the Letter of Credit as amended.
SF:145015.1
20.
(f) Obligation
Absolute. The obligations of the Company and each other
Borrower under this Agreement and any other agreements or instrument relating to
any Letter of Credit to reimburse the Bank or cause each other Borrower to
reimburse the Bank shall be unconditional and irrevocable and shall be paid and
performed strictly in accordance with the terms of this Agreement and such other
agreement or instrument under all circumstances, including the following
circumstances:
(i) any
lack of validity or enforceability of this Agreement, any Letter of Credit, any
Letter of Credit Agreement or any other agreement or instrument relating thereto
(collectively, the “L/C-Related
Documents”);
(ii) any
change in the time, manner or place of payment of, or in any other term of, all
or any of the obligations of the Company or of any Borrower in respect of any
Letter of Credit or any other amendment or waiver of or any consent to departure
from all or any of the L/C-Related Documents;
(iii) the
existence of any claim, set-off, defense or other right that either the Company
or any Borrower may have at any time against any beneficiary or any transferee
of any Letter of Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Bank or any other Person, whether in connection
with this Agreement, the transactions contemplated hereby or by the L/C-Related
Documents or any unrelated transaction;
(iv) any
draft, demand, certificate or other document presented under any Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any respect
or any statement therein being untrue or inaccurate in any respect;
(v) any
payment by the Bank under any Letter of Credit against presentation of a draft
or certificate that does not strictly comply with the terms of any Letter of
Credit, or any payment by the Bank under any Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the
benefit of creditors, liquidator, receiver or other representative of or
successor to any beneficiary or any transferee of any Letter of Credit,
including any arising in connection with any Insolvency Proceeding;
(vi) any
exchange, release or non-perfection of any collateral, or any release or
amendment or waiver of or consent to departure from any other guarantee, for all
or any of the obligations of the Company or a Borrower in respect of any Letter
of Credit; or
(vii) any
other circumstance or happening whatsoever, whether or not similar to any of the
foregoing, including any other circumstance that might otherwise constitute a
defense available to, or a discharge of, the Company, any Borrower or a
guarantor.
(g) Limitation of Liability of
the Bank. The Company and each of the Borrowers assume all
risks of the acts or omissions of any beneficiary or transferee with respect to
its use of any Letter of Credit; provided, however,
that this assumption with respect to the Bank is not intended to, and shall not,
preclude the Company or any Borrower pursuing such
SF:145015.1
21.
rights
and remedies as it may have against the beneficiary or transferee at law or
under any other agreement. Neither the Bank, nor any of its affiliates,
correspondents, participants or assignees, or any of their respective officers,
directors or employees, shall be liable or responsible for any of the matters
described in clauses
(i) through (vii) of Section 2.03(f); provided, however, anything in such
preceding clauses to the contrary notwithstanding, that the Company shall have a
claim against the Bank, and the Bank shall be liable to the Company, to the
extent, but only to the extent, of any direct, as opposed to consequential,
damages suffered by the Company that the Company proves were caused by (i) the
Bank’s willful misconduct or gross negligence or (ii) the Bank’s willful failure
to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate both strictly complying with the
terms and conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, the Bank (i) may accept documents that appear on
their face to be in order, without responsibility for further investigation,
regardless of any notice or information to the contrary, and (ii) shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(h) Cancellation of Certain
Standby Letters of Credit. At any time, upon the request of
the Bank, the Company shall cancel, or cause the applicable Borrower to cancel,
and obtain the surrender of, any Standby Letter of Credit (including any
guaranty described in clause (ii) of the definition of such term) issued by the
Bank that is without an expiry date, such cancellation and surrender to occur by
no later than sixty (60) days after the initial request of the Bank. The Company
acknowledges and agrees that the Bank may, in connection with any Evergreen
Letter of Credit, at its election deliver any notices of termination or other
communications to any Letter of Credit beneficiary or transferee, or take any
other action as necessary or appropriate in order to cause the expiry date of
such Letter of Credit to be a date not later than one year after the Revolving
Termination Date.
(i) Fees; Interest on Drawn
Amounts. The Company shall pay or cause the applicable
Borrower to pay the Bank (A) an issuance fee of 1.125% of the face amount (or
guaranteed amount with respect to Permitted Guarantees) of each Standby Letter
of Credit, Evergreen Letter of Credit and Permitted Guarantee; and (B) an
issuance fee, negotiation fee and other fees at the times and in the amount as
the Bank may advise the Company or the Borrower as being applicable, for each
Trade Letter of Credit issued. Unless a different rate is otherwise expressly
provided in the applicable Letter of Credit Agreement, the Company shall pay or
cause the applicable Borrower to pay on demand interest on the amount of all
drawings honored or payments made by the Bank under any Letter of Credit and not
reimbursed by the Company or such Borrower, from the date of such drawing or
payment, at the per annum rate of the Base Rate plus two percent
(2%).
(j) Cash
Collateral. In addition to any other rights or remedies which
the Bank may have under this Agreement or otherwise, upon the occurrence of an
Event of Default or the Revolving Termination Date, the Bank may require the
Company or the Borrower to provide cash collateral in the amount of the
outstanding amount of all Letters of Credit and Permitted
Guarantees.
SF:145015.1
22.
SECTION
2.04 The
Acceptance Facility.
(a) Availability. On
the terms and conditions contained herein and in the applicable Acceptance
Agreement, the Company or any other Borrower may, during the Availability
Period, present drafts for acceptance by the Bank to finance specified shipments
of goods, whether import, export or domestic shipments; provided that the
Bank shall not be obligated to accept any draft if the face amount of the draft
to be accepted plus the sum of all
other Outstanding Amounts, or the Equivalent Amount, together would exceed the
Commitment.
(b) Acceptance
Procedures. The Company or any other Borrower may request an
acceptance pursuant to subsection (a) of
this Section
2.04 of any draft drawn by such Person on the Bank to finance a specific
shipment of goods (as presented, a “Draft,” and as
accepted by the Bank, and including any Prior Acceptance, an “Acceptance”) by: (i)
giving the Bank at least two (2) Business Days’ prior notice of the requested
Acceptance, which notice shall be in writing or shall be by telephone or
telecopy and confirmed promptly in writing, and which notice shall specify (A)
the date on which the acceptance of the Draft is desired (the proposed “Acceptance Date”),
(B) the aggregate principal amount of the presented Draft, and (C) whether the
Bank should complete and deliver a pre-signed blank draft in its possession for
the proposed Acceptance, and if so, specifying the proposed amount, issuance
date and maturity date; (ii) delivering to the Bank (unless already done
so) a duly executed Acceptance Agreement and such other documents and agreements
as may be referenced therein; and (iii) delivering to the Bank the specified
Draft and an eligibility certificate describing the underlying goods and
indicating their origin and destination or other evidence of the underlying
transaction, each in such form and substance as may be acceptable to the Bank.
Each Draft shall be for an integral multiple of $100,000 in an amount that is
not less than $1,000,000 (or the Equivalent Amount). No Draft shall be dated or
accepted more than thirty (30) days before or more than thirty (30) days after
the date of the shipment of goods to which it relates. Each Draft shall mature
on a Business Day, which shall be at least thirty (30) days after the Acceptance
Date. No Draft shall mature (x) more than 180 days after the Acceptance Date, or
(y) later than is reasonably estimated to be required to complete the underlying
transaction.
(c) Eligible
Acceptances. Each Draft shall relate to one or more specific
transactions involving the importation or exportation of goods or the domestic
shipment of goods within the United States. The goods relating to each Draft
shall have a c.i.f. value equaling or exceeding the amount of the Draft, shall
be of good and merchantable quality, shall be fully insured in accordance with
prudent industry practice and shall not be the subject of any security interest
granted by the Borrower. No other source shall have financed the transaction
underlying the Draft. The Borrower shall have procured all import, export and
other licenses essential to the underlying transaction and shall have complied
with all applicable laws pertaining to the underlying goods and transaction.
Each Draft shall qualify (upon acceptance) in all respects with the requirements
for eligibility for discount of the Federal Reserve Banks of the United States.
With regard to each Draft presented by itself or any other Borrower, the Company
represents and warrants to the Bank that, as of the date of presentment, the
Draft and underlying goods and transaction conform to the requirements of this
subsection, and the Company covenants and agrees that it will continue to
conform or cause the applicable Borrower to conform to those requirements for so
long as the Acceptance is outstanding. In the event that any
Acceptance
SF:145015.1
23.
hereunder
is created and is not eligible for discount by Federal Reserve Banks, the
Company shall indemnify the Bank for all costs and expenses resulting from such
determination (including costs under Regulation D of the Federal Reserve
Board).
(d) Limitation of Liability of
the Bank. Neither the Bank nor any of its affiliates,
correspondents, participants or designees, or any of their respective officers,
directors or employees, shall be responsible or have any liability for: (i) the
existence, character, quantity, quality, condition, packing, value or delivery
of any goods or other property relating to any Draft or Acceptance; (ii) the
validity, sufficiency or genuineness of any documents or endorsements or other
notations thereon; (iii) the time, place, manner or order in which shipment is
made; (iv) any insurance or insurer; or (v) any act or omission of any shipper,
warehouseman, carrier, correspondent or other party involved in any transaction
related to any Draft or Acceptance.
(e) Changed
Circumstances. If, on or before the date of acceptance of any
Draft, the Bank shall have determined (which determination shall be final,
conclusive and binding on the Company and any Borrower) that (i) it is
impermissible for the Bank to accept any Draft due to any circumstances
described in Section
3.02, (ii) acceptances in amounts or for durations corresponding to the
proposed Acceptance(s) are not being readily traded in the applicable market, or
(iii) by reason of changes affecting the applicable market, the discount rate to
be in effect for that period will not adequately and fairly reflect the cost to
the Bank of accepting or discounting the Draft, then the Bank shall be under no
obligation to accept the requested Draft, notwithstanding anything to the
contrary in this Section 2.04. The
Bank shall notify the Company in the event the Bank makes such a determination;
provided,
however, that the failure to give such notice shall not affect the validity of
that determination or the rejection of any Draft submitted for acceptance. No
determination made under this subsection, however, shall in and of itself reduce
the unused portion of the Commitment or limit any Borrower’s ability to request
Other Credits hereunder in accordance with the terms and provisions of this
Agreement.
(f) Repayment; Discount and
Commissions. The Company shall pay or cause the applicable
Borrower to pay to the Bank the face amount and the related discount and
commissions of each Acceptance created hereunder on the maturity date of the
Draft related to such Acceptance. The discount and commissions payable by the
Company or any Borrower to the Bank for each Draft shall be as specified by the
Bank from time to time and will be based upon the Bank’s “all-in-rate” for
acceptances in effect on the dates of acceptance and discount. Unless a
different rate is otherwise expressly provided in any Acceptance Agreement, any
amount not paid by the Company or the applicable Borrower to the Bank on the
maturity date of any Acceptance, including the face amount of any Acceptance and
any charges and expenses relating thereto, shall bear interest at the per annum
rate equal to the Base Rate plus two percent
(2.0%).
(g) Prior
Acceptances. All drafts accepted by the Bank pursuant to the
Prior Agreement for the account of the Company or any of the Company’s
Subsidiaries, and which are outstanding as of the Closing Date or as to which
the Bank has not received as of such date reimbursement or payment in full with
respect to any payments made thereunder (the “prior Acceptances”), shall
constitute additional Acceptances under this Agreement, will reduce
pro
SF:145015.1
24.
tanto the
unused Commitment hereunder accordingly and will be governed by the terms and
provisions of this Agreement from and after the Closing Date, together with any
Acceptance Agreements previously executed and delivered in connection
therewith.
SECTION
2.05 The Other
Credits.
(a) Availability. Upon
the written or telephonic request of any Borrower from time to time, subject to
the terms and conditions hereof, the Bank may agree to extend Other Credits to
or for the benefit of such Borrower, on such terms and conditions as may be
agreed in writing between the Bank and such Person, provided that the
Bank shall not be obligated to extend any such Other Credit if the face, stated
or maximum amount of such Other Credit plus the sum of all
other Outstanding Amounts, or the Equivalent Amount thereof, would exceed the
Commitment. The Company shall execute and deliver, or cause such
Borrower to execute and deliver, such additional instruments, documents and
agreements as the Bank may require in connection with the provision by the Bank
of any Other Credit and shall pay or cause to be paid to the Bank all applicable
fees, commissions and other charges arising therefrom as specified by the
Bank.
(b) Prior Other
Credits. All Other Credits issued or extended to or for the
benefit of the Company or any of its Subsidiaries pursuant to the Prior
Agreement and that are outstanding as of the Closing Date, or as to which the
Bank has not received reimbursement or payment in full with respect thereto (the
“Prior Other
Credits”), shall constitute additional Other Credits under this
Agreement, will reduce pro tanto the unused Commitment hereunder accordingly,
and will be governed by the terms and provisions of this Agreement from and
after the Closing Date, together with any other applicable agreements and
documentation previously executed and delivered in connection therewith, other
than the Prior Agreement.
SECTION
2.06 Mandatory
Prepayments. If at any time the total Outstanding Amount, or
the Equivalent Amount thereof, exceeds the Commitment, the Company shall
immediately, and without notice or demand, prepay the Credits that are no longer
contingent by an amount equal to such excess, subject to Section 3.04, such
prepayment to be applied as the Bank may determine in its discretion. If after
prepayment of such Credits, the total Outstanding Amount of the Credits exceeds
the Commitment, an Event of Default shall immediately exist
hereunder.
SECTION
2.07 Guaranty. Any
and all Obligations of Subsidiaries of the Company shall be unconditionally
guaranteed by the Company pursuant to the terms of the Guaranty.
SECTION
2.08 Optional Commitment
Reduction. The Company may upon not less than five (5)
Business Days’ prior notice to the Bank, permanently reduce the Commitment by an
aggregate minimum amount of $5,000,000 or any multiple of $1,000,000 in excess
thereof; provided that no such
reduction shall be permitted if, after giving effect thereto, the then
Outstanding Amount would exceed the amount of the Commitment then in effect and,
provided further, that once
reduced in accordance with this Section, the Commitment may not thereafter be
increased.
SF:145015.1
25.
SECTION
2.09 Fees.
(a) Facility
Fee. The Company shall further pay to the Bank an irrevocable
facility fee at the rate of 0.375% per annum of the amount of the Commitment,
due and payable in arrears in quarterly installments on the last Business Day of
each calendar quarter commencing on December 31, 2000. Such fee shall
be deemed earned on each day the Commitment is outstanding (regardless of
utilization thereof) and shall accrue at all times from and after the Closing
Date, including at any time during which one or more conditions in Article IV are
not met. No portion of any amount so paid shall be subject to return or refund
for any reason.
(b) Other
Fees. The Company shall further pay or cause the applicable
Borrower to pay to the Bank such other fees and charges in connection with the
respective Credits as the Bank shall from time to time require in connection
with such Credits.
SECTION
2.10 Computation of Fees and
Interest.
(a) All
computations of interest payable in respect of Base Rate Loans shall be made on
the basis of a year of three hundred sixty-five (365) or three hundred sixty-six
(366) days, as the case may be, and actual days elapsed. All other
computations of fees and interest under this Agreement shall be made on the
basis of a three hundred sixty (360) day year and actual days elapsed, which
results in more interest being paid than if computed on the basis of a 365-day
year. Interest and fees shall accrue during each period during which interest or
such fees are computed from the first day thereof to the last day
thereof.
(b) Any
change in the interest rate on a Loan resulting from a change in the Applicable
Margin, Reserve Percentage or the Assessment Rate shall become effective as of
the opening of business on the day on which such change in the Applicable
Margin, Reserve Percentage or the Assessment Rate shall become
effective.
(c) Each
determination of an interest rate by the Bank pursuant to any provision of this
Agreement shall be conclusive and binding on the Company and each Borrower in
the absence of manifest error. The Bank will, at the request of the Company or
any Borrower deliver to the Company a statement showing the quotations used by
the Bank in determining any Offshore Rate.
SECTION
2.11 Payments by the
Borrowers.
(a) All
payments (including prepayments and pledges of cash collateral) to be made by
the Company or any Borrower in connection with any Credit on account of
principal, interest, fees or other amounts shall be made without set-off or
counterclaim and shall be made to the Bank, at the Bank’s office set forth in
Section 8.04,
in dollars and in immediately available funds no later than 12:00 noon (San
Francisco time), or at such other office or branch of the Bank as may be set
forth in any other Credit Document governing any specific Credit. Any payment
which is received by the Bank later than 12:00 noon (San Francisco time) shall
be deemed to have been received on the immediately succeeding Business
Day.
SF:145015.1
26.
(b) Whenever
any payment or other performance hereunder shall be stated to be due on a day
other than a Business Day, such payment or other performance shall be made on
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of interest or fees, as the case may
be.
ARTICLE
III.
TAXES,
ILLEGALITY AND YIELD PROTECTION
SECTION
3.01 Taxes.
(a) Any
and all payments by the Company and any of its Subsidiaries to the Bank under
this Agreement and any other Credit Document shall be made free and clear of,
and without deduction or withholding for, any and all present or future
Taxes.
(b) In
addition, the Company agrees to pay or cause any applicable Borrower to pay all
Other Taxes.
(c) The
Company shall indemnify and hold harmless .(or cause any applicable Borrower to
do so) the Bank for the full amount of Taxes, Other Taxes and Further Taxes in
the amount that the Bank specifies as necessary to preserve the after-tax yield
the Bank would have received if such Taxes, Other Taxes or Further Taxes had not
been imposed, and any liability (including penalties, interest, additions to tax
and expenses) arising therefrom or with respect thereto, whether or not such
Taxes, Other Taxes or Further Taxes were correctly or legally asserted. Payment
under this indemnification shall be made within thirty (30) days from the date
the Bank makes written demand therefor.
(d) If
the Company or any of the Subsidiaries is required by law to deduct or withhold
any Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to the Bank, then:
(i) the
sum payable shall be increased as may be necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section
3.01) the Bank receives an amount equal to the sum it would have received
had no such deductions been made,
(ii) the
Company or such Subsidiary shall make such deductions,
(iii) the
Company or such Subsidiary shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law,
and
(iv) the
Company or such Subsidiary shall pay to the Bank at the time interest is paid,
all additional amounts which the Bank specifies as necessary to preserve the
after-tax yield the Bank would have received if such Taxes, Other Taxes or
Further Taxes had not been imposed.
SF:145015.1
27.
(e) Within
thirty (30) days after the date of any payment by the Company or any Subsidiary
of Taxes, Other Taxes or Further Taxes, the Company shall furnish to the Bank
the original or a certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to the Bank.
(f) The
agreements and obligations of the Company contained in this Section 3.01 shall
survive the termination of this Agreement and the other Credit Documents and
repayment of the Credits.
SECTION
3.02 Illegality.
(a) If
the Bank shall determine that (i) the introduction of any Requirement of Law or
any change in or in the interpretation or administration thereof has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for the Bank to make or extend any Credit, or (ii) any
order, judgment or decree of any Governmental Authority or arbitrator purports
by its terms to enjoin or restrain the Bank from making or extending any Credit,
then, on notice thereof by the Bank to the Company, the obligation of the Bank
to make or extend such Credit shall be suspended until the Bank shall have
notified the Company that the circumstances giving rise to such determination no
longer exists.
(b) If
the Bank shall determine that it is unlawful to maintain any Offshore Rate Loan
or Local Currency Loan, the Company shall prepay or cause the applicable
Borrowers to prepay in full all Offshore Rate Loans or Loans of such Local
Currency, as the case may be, then outstanding, together with interest accrued
thereon, either on the last day of the Interest Period thereof if the Bank may
lawfully continue to maintain such Offshore Rate Loans to such day and such
Loans have an Interest Period, or immediately, if the Bank may not lawfully
continue to maintain such Offshore Rate Loans or such Loans have no Interest
Period, together with any amounts required to be paid in connection therewith
pursuant to Section
3.04.
SECTION
3.03 Increased Costs and
Reduction of Return.
(a) If
the Bank shall determine that, due to either (i) the introduction of or any
change (including any change by way of imposition of or increase in reserve
requirements included in the Reserve Percentage) in or in the interpretation of
any law or regulation or (ii) the compliance with any guideline or request from
any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to the Bank of agreeing
to make or making, funding or maintaining any Credits, then the Company shall be
liable for, and shall from time to time, upon demand therefor by the Bank, pay
to the Bank, additional amounts as are sufficient to compensate it for such
increased costs.
(b) If
the Bank shall have determined that the introduction of any applicable law,
rule, regulation or guideline regarding capital adequacy, or any change therein
or any change in the interpretation or administration thereof by any central
bank or other Governmental Authority charged with the interpretation or
administration thereof, or compliance by the Bank or any corporation controlling
the Bank, with any request, guideline or directive regarding capital adequacy
(whether or not having the force of law) of any such central bank or other
authority,
SF:145015.1
28.
affects
or would affect the amount of capital required or expected to be maintained by
the Bank or any corporation controlling the Bank, and the Bank (taking into
consideration the Bank’s or such corporation’s policies with respect to capital
adequacy and the Bank’s desired return on capital) determines that the amount of
such capital is increased as a consequence of the Bank’s obligation under this
Agreement, then, upon demand of the Bank, the Company shall immediately pay to
the Bank, from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
SECTION
3.04 Funding
Losses. The Company agrees to reimburse or cause the
applicable Borrower to reimburse the Bank and to hold the Bank harmless from any
loss or expense that the Bank may sustain or incur as a consequence
of:
(a) any
failure of the Company or such Borrower to make any payment or prepayment of
principal with respect to any Offshore Rate Loan or Local Currency Loan
(including payments made after any acceleration thereof);
(b) any
failure of the Company or such Borrower to borrow a Loan after the Company or
such Borrower has given (or is deemed to have given) a Notice of
Borrowing;
(c) any
failure of the Company or such Borrower to make any prepayment after the Company
or such Borrower has given a notice in accordance with Section 2.02(c);
or
(d) any
prepayment of an Offshore Rate Loan on a day that is not the last day of the
Interest Period with respect thereto;
including
any such loss or expense arising from the liquidation or reemployment of funds
obtained by it to maintain its Offshore Rate Loans hereunder or from fees
payable to terminate the deposits from which such funds were
obtained.
SECTION
3.05 Inability to Determine
Rates. If the Bank shall have determined that (a) for any
reason adequate and reasonable means do not exist for ascertaining the Offshore
Rate for any requested Interest Period with respect to a proposed Offshore Rate
Loan, or (b) the Offshore Rate applicable for any requested Interest Period with
respect to a proposed Offshore Rate Loan does not adequately and fairly reflect
the cost to the Bank of funding such Loan, or (c) deposits in the currency, the
principal amount and for periods equal to the applicable Interest Periods are
not available in the offshore currency interbank markets, the Bank will give
notice of such determination to the Company. Thereafter, the obligation of the
Bank to make or maintain Offshore Rate Loans hereunder shall be suspended until
the Bank revokes such notice in writing. Upon receipt of such notice, the
Company or applicable Subsidiary may revoke any Notice of Borrowing then
submitted by it. If the Company or other Borrower does not revoke such notice,
the Bank shall make the Loans, as proposed by the Company or such Borrower, in
the amount specified in the applicable notice submitted by the Company or such
Borrower, but such Loans shall be made as Base Rate Loans instead of Offshore
Rate Loans.
SECTION
3.06 Certificates of
Bank. In connection with any claim for reimbursement or
compensation pursuant to this Article III, the Bank
will deliver to the Company a certificate setting forth in reasonable detail the
amount owing to the Bank hereunder and such certificate
SF:145015.1
29.
shall be
conclusive and binding on the Company and each Borrower in the absence of
manifest error.
SECTION
3.07 Survival. The
agreements and obligations of the Company in this Article III shall
survive the payment of all other Obligations.
ARTICLE
IV.
CONDITIONS
PRECEDENT
SECTION
4.01 Conditions to Initial
Credits. The obligation of the Bank to extend the initial
Credit hereunder is subject to the condition that the Bank shall have received
on or before the Closing Date all of the following, in form and substance
satisfactory to the Bank and its counsel:
(a) Credit
Agreement. This Agreement executed by the
Company;
(b) Resolutions;
Incumbency.
(i) Copies
of the resolutions of the board of directors of the Company approving and
authorizing the execution, delivery and performance by the Company of this
Agreement, the other Credit Documents to be delivered hereunder and authorizing
the incurring of Indebtedness under the Credits, certified as of the Closing
Date by the Secretary or an Assistant Secretary of the Company; and
(ii) A
certificate of the Secretary or Assistant Secretary of the Company certifying
the names and true signatures of the officers of the Company authorized to
execute and deliver, as applicable, this Agreement and all other Credit
Documents to be delivered hereunder;
(c) Articles of Incorporation;
Bylaws and Good Standing. Each of the following
documents:
(i) the
articles or certificate of incorporation of the Company as in effect on the
Closing Date, certified by the Secretary or Assistant Secretary of the Company
as of the Closing Date and the bylaws of the Company as in effect on the Closing
Date, certified by the Secretary or Assistant Secretary of the Company as of the
Closing Date; and
(ii) a
good standing certificate for the Company from the Secretary of State of its
state of incorporation as of a recent date;
(d) Legal
Opinion. Opinion of the Company’s General Counsel, addressed
to the Bank;
(e) Payment of
Fees. The Company shall have paid all costs, accrued and
unpaid fees and expenses (including Attorney Costs) referred to herein to the
extent then due and payable on the Closing Date.
SF:145015.1
30.
(f) Certificate. A
certificate signed by the chief financial officer of the Company, dated as of
the Closing Date, stating that:
(i) the
representations and warranties contained in Article V are true
and correct on and as of such date, as though made on and as of such
date;
(ii) no
Default or Event of Default exists or would result from the extension of the
initial Credit; and
(iii) there
has occurred since May 28, 2000 no Material Adverse Effect;
(g) Termination of Prior
Commitment. Evidence satisfactory to the Bank (i) of the
termination by the Company of the commitment of the Bank under the Prior
Agreement, and (ii) of the repayment in full of all principal, interest, fees,
expenses and other amounts due or outstanding under the Prior Agreement other
than the Prior Loans, Prior Letters of Credit, Prior Acceptances and Prior Other
Obligations, which are deemed issued hereunder as provided in subsections 2.02(f),
2.03(d), 2.04(g) and 2.05(b),
respectively; and
(h) Other
Documents. Such other approvals, opinions or documents as the
Bank may reasonably request.
SECTION
4.02 Conditions to All
Credits. In addition to satisfaction of the other conditions
set forth elsewhere herein, the obligation of the Bank to extend any Credit
hereunder (including the amendment of any Letter of Credit and including the
initial Credit) is subject to the satisfaction of each of the following
conditions precedent as of the date of such Credit extension:
(a) Documentation. The
Bank shall have received, (i) with respect to any proposed Loan other than a
Local Currency Loan, a Notice of Borrowing; (ii) with respect to any proposed
Acceptance, an Acceptance Agreement and such other documentation as is described
in Section
2.04; (iii) with respect to any proposed Letter of Credit, a Letter of
Credit Agreement and such other documentation as may be referenced therein; (iv)
with respect to any Other Credit or any Local Currency Loan, such documentation
as the Bank shall request; and (v) with respect to any Credit for the benefit of
any Subsidiary, such additional documentation as the Bank may require, including
an appropriate supplement to the Guaranty; in each case in form and substance
satisfactory to the Bank and duly executed by the Company or the applicable
Borrower, as the case may be;
(b) Continuation of
Representations and Warranties. The representations and
warranties made by the Company contained in Article V shall be
true and correct on and as of such borrowing or Credit extension date with the
same effect as if made on and as of such date;
(c) No Existing
Default. No Default or Event of Default shall exist or shall
result from such Borrowing or other extension of Credit; and
SF:145015.1
31.
(d) Payment of
Fees. Any and all fees, charges, expenses and other amounts
payable by the Company or any Borrower in connection with the extension of such
Credit shall have been paid to the Bank.
Each
Borrowing by, and receipt of any other extension of Credit hereunder by, the
Company or any Subsidiary of the Company shall constitute a representation and
warranty by the Company hereunder as of the date of each such Borrowing or
extension of Credit that the conditions in this Section 4.02 have
been and remain satisfied.
ARTICLE
V.
REPRESENTATIONS
AND WARRANTIES
SECTION
5.01 Representations and
Warranties. The Company represents and warrants to the Bank
that:
(a) Organization and
Powers. Each of the Company and its Subsidiaries is a
corporation or partnership duly organized or formed, as the case may be, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, is qualified to do business and is in good standing
in each jurisdiction in which the failure so to qualify or be in good standing
would result in a Material Adverse Effect and has all requisite power and
authority and all material governmental licenses, authorizations, consents and
approvals to own its assets and carry on its business and to execute, deliver
and perform its obligations under the Credit Documents.
(b) Authorization; No
Conflict. The execution, delivery and performance by the
Company of the Credit Documents to which it is a party have been duly authorized
by all necessary corporate action of the Company and do not (i) contravene the
terms of the certificate or articles, as the case may be, of incorporation and
the bylaws (or other organizational documents) of the Company or result in a
breach of or constitute a default under any indenture or loan or credit
agreement or any other material agreement, lease or instrument to which the
Company is a party or by which it or its properties may be bound or affected;
(ii) violate any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree or the like binding on or affecting the Company; or (iii)
except as contemplated by this Agreement, result in, or require, the creation or
imposition of any Lien upon or with respect to any of the properties of the
Company or its Subsidiaries.
(c) Binding
Obligation. The Credit Documents constitute, or when delivered
under this Agreement will constitute, legal, valid and binding obligations of
the Company (to the extent it is a party thereto), enforceable against the
Company in accordance with their respective terms, except as enforceability may
be limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors’ rights generally or equitable principles relating to
enforceability.
(d) Consents. No
authorization, consent, approval, license, exemption of, or filing or
registration with, any Governmental Authority, or approval or consent of any
other
SF:145015.1
32.
Person,
is required for the due execution, delivery or performance by the Company, or
enforcement against the Company, of any of the Credit Documents to which it is a
party.
(e) No
Defaults. Neither the Company nor any of its Subsidiaries is
in default under any law, regulation, license, contract, lease, agreement,
judgment, decree or order to which it is a party or by which it or its material
properties may be bound, which default could reasonably be expected to have a
Material Adverse Effect or result in an Event of Default if such default had
occurred after the Closing Date. No Default or Event of Default exists or would
result from the incurring of the Obligations by the Company.
(f) Title to Properties;
Liens. The Company and its Subsidiaries have good and
marketable title to, or valid and subsisting leasehold interests in, those
properties and assets which are material to the conduct of their business,
except for minor defects in title that do not interfere with their ability to
conduct their business as currently conducted or to utilize such properties and
assets for their intended purposes and there is no Lien upon or with respect to
any of such properties or assets, except for Permitted Liens.
(g) Litigation. Except
as set forth in the Company’s Form 10-K for the fiscal year ended May 28, 2000
filed with the Securities and Exchange Commission, there are no actions, suits
or proceedings pending or, to the best of the Company’s knowledge, threatened
against or affecting the Company or any of its Subsidiaries or the properties of
the Company or any of its Subsidiaries before any Governmental Authority, court
or arbitrator which if determined adversely to the Company or any such
Subsidiary would result in a Material Adverse Effect.
(h) Compliance with
Environmental Laws. The Company conducts in the ordinary
course of business a review of the effect of existing Environmental Laws and
existing Environmental Claims on its business, operations and properties, and as
a result thereof the Company has reasonably concluded that such Environmental
Laws and Environmental Claims could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(i) Governmental
Regulation. Neither the Company nor any of its Subsidiaries is
subject to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act, the Investment Company Act of 1940, the Interstate Commerce
Act, any state public utilities code or any other federal or state statute or
regulation limiting its ability to incur Indebtedness.
(j) Use of Proceeds; Margin
Regulations. The proceeds of the Loans are to be used solely
for the purposes set forth in and permitted by Section 6,03(j).
Neither the Company nor any Subsidiary is generally engaged in the business of
purchasing or selling Margin Stock or extending credit for the purpose of
purchasing or carrying Margin Stock.
(k) Taxes. Each
of the Company and its Subsidiaries has duly filed all tax and information
returns required to be filed, and has paid all taxes, fees, assessments and
other
SF:145015.1
33.
governmental
charges or levies that have become due and payable, except to the extent such
taxes or other charges are being contested in good faith and are adequately
reserved against in accordance with GAAP.
(l) Patents and Other
Rights. Each of the Company and its Subsidiaries possesses all
material permits, franchises, licenses, patents, trademarks, trade names,
service marks, copyrights and all rights with respect thereto, free from
burdensome restrictions, that are reasonably necessary for the ownership,
maintenance and operation of its business, without any known conflict with the
rights of any other Person that individually or in the aggregate could
reasonably be expected to have a Material Adverse Effect.
(m) Insurance. The
properties of each of the Company and its Subsidiaries are either (i) insured,
with financially sound and reputable insurance companies, in such amounts, with
such deductibles and covering such risks as is customarily carried by companies
engaged in similar businesses and owning similar properties in the localities
where the Company or such Subsidiary operates or (ii) self-insured to such
extent and covering such risks as is usual for companies of similar size engaged
in the same or similar businesses and owning similar properties.
(n) Financial
Statements. The audited consolidated balance sheet of the
Company and its Subsidiaries as at May 28, 2000, and the related consolidated
statements of income, shareholders’ equity and cash flows for the fiscal year
then ended, and the unaudited consolidated balance sheet of the Company and its
Subsidiaries as at August 27, 2000, and the related consolidated statements of
income, shareholders’ equity and cash flows, for the quarter then ended and the
three month period then ended, are complete and correct and fairly present the
financial condition of the Company and its Subsidiaries as at such dates and the
results of operations of the Company and its Subsidiaries for the periods
covered by such statements, in each case in accordance with GAAP consistently
applied, subject, in the case of the financial statements other than year end
financial statements, to normal year-end adjustments and the absence of notes.
Since May 28, 2000, there has been no Material Adverse Effect.
(o) Liabilities. Neither
the Company nor any of its Subsidiaries has any material liabilities, fixed or
contingent, that are not reflected in the financial statements referred to in
subsection (n),
in the notes thereto or otherwise disclosed in writing to the Bank, other than
liabilities arising in the ordinary course of business since May 28,
2000.
(p) Solvency. The
Company is Solvent.
(q) Disclosure. None
of the representations and warranties made by the Company or any of its
Subsidiaries in the Credit Documents as of the date of such representations and
warranties, contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in the light of the circumstances under which they are made, not
misleading, as of the time made or delivered.
SF:145015.1
34.
ARTICLE
VI.
COVENANTS
SECTION
6.01 Reporting
Covenants. So long as any of the Obligations shall remain
unpaid or the Bank shall have any Commitment, the Company agrees
that:
(a) Financial Statements and
Other Reports. The Company shall furnish to the
Bank:
(i) as
soon as available and in any event within 60 days after the end of the first
three fiscal quarters of each fiscal year or 120 days (in the case of the fourth
fiscal quarter), a consolidated balance sheet of the Company and its
Subsidiaries as of the end of such quarter, and the related consolidated
statements of income, shareholders’ equity and cash flows of the Company and its
Subsidiaries for such quarter and the portion of the fiscal year through the end
of such quarter, prepared in accordance with GAAP consistently applied, all in
reasonable detail and setting forth in comparative form the figures for the
corresponding period in the preceding fiscal year;
(ii) as
soon as available and in any event within 120 days after the end of each fiscal
year, a consolidated balance sheet of the Company and its Subsidiaries as of the
end of such fiscal year, and the related consolidated statements of income,
shareholders’ equity and cash flows of the Company and its Subsidiaries for such
fiscal year, prepared in accordance with GAAP consistently applied, all in
reasonable detail and setting forth in comparative form the figures for the
previous fiscal year, accompanied by a report thereon of a firm of independent
certified public accountants of recognized national standing reasonably
acceptable to the Bank, which report shall not be qualified;
(iii) together
with the financial statements required pursuant to clauses (i) and (ii), a
Compliance Certificate of a Responsible Officer of the Company as of the end of
the applicable accounting period; and
(iv) promptly
after the giving, sending or filing thereof, copies of all reports, if any,
which the Company or any of its Subsidiaries sends to the holders of its
respective capital stock or other securities and of all reports and filings, if
any, by the Company or any of its Subsidiaries with the SEC or any national
securities exchange.
As to any
information contained in materials furnished pursuant to clause (iv), the
Company shall not be separately required to furnish such information under
clause (i) or (ii), but the foregoing shall not be in derogation of the
obligation of the Company to furnish the information and materials described in
clauses (i) and (ii) at the times specified therein.
(b) Additional
Information. The Company will furnish to the
Bank:
(i) promptly
after the Company has knowledge or becomes aware thereof, notice of the
occurrence of any Default;
SF:145015.1
35.
(ii) prompt
written notice of any condition or event which has resulted, or that the Company
reasonably believes could result, in a Material Adverse Effect; and
(iii) such
other information respecting the operations, properties, business or condition
(financial or otherwise) of the Company or its Subsidiaries as the Bank may from
time to time reasonably request.
Each
notice pursuant to subsection (b)(i) or
(ii) shall be
accompanied by a written statement by a Responsible Officer of the Company
setting forth details of the occurrence referred to therein, and stating what
action the Company proposes to take with respect thereto.
SECTION
6.02 Financial
Covenants. So long as any of the Obligations shall remain
unpaid or the Bank shall have any Commitment, the Company agrees
that:
(a) Consolidated Tangible Net
Worth. The Company shall not permit Consolidated Tangible Net
Worth on the last day of any fiscal quarter from and after October 30, 2000
(such quarterly date to be referred to herein as a “determination date”) to be
less than an amount equal to 90% of Consolidated Tangible Net Worth as of August
27, 2000, plus
(A) an amount equal to 50% of the sum of positive Consolidated Net Income
(ignoring any quarterly losses) for each fiscal quarter after August 27, 2000,
through and including the quarter ending on the determination date, plus (B) an amount
equal to 50% of the Net Proceeds of all Equity Securities issued by the Company
during the period commencing on August 28, 2000 and ending on the determination
date, minus (C)
an amount equal to the amount paid, not to exceed $400,000,000 in the aggregate,
in respect of repurchases of common stock of the Company from and after August
27, 2000.
(b) Quick
Ratio. The Company shall maintain as of the end of each fiscal
quarter from and after October 30, 2000, a ratio of Consolidated Quick Assets to
Consolidated Current Liabilities of not less than 1.0 to 1.0.
SECTION
6.03 Additional Affirmative
Covenants. So long as any of the Obligations shall remain
unpaid or the Bank shall have any Commitment, the Company agrees
that:
(a) Preservation of Existence,
Etc. The Company shall, and shall cause each of its
Subsidiaries to, maintain and preserve its legal existence, its rights to
transact business and all other rights, franchises and privileges necessary or
desirable in the normal course of its business and operations and the ownership
of its properties, except in connection with any transactions permitted by Section
6.04(c).
(b) Payment of
Obligations. The Company shall, and shall cause each of its
Subsidiaries to, pay and discharge (i) all material taxes, fees, assessments and
governmental charges or levies imposed upon it or upon its properties or assets
prior to the date on which penalties attach thereto, and all lawful claims for
labor, materials and supplies which, if unpaid, might become a Lien upon any
properties or assets of the Company or any Subsidiary, except to the extent such
taxes, fees, assessments or governmental charges or levies, or such claims, are
being contested in good faith by appropriate proceedings and are adequately
reserved against in
SF:145015.1
36.
accordance
with GAAP; and (ii) all lawful claims which, if unpaid, would by law become a
Lien upon its property not constituting a Permitted Lien.
(c) Maintenance of
Insurance. The Company shall, and shall cause each of its
Subsidiaries to, carry and maintain in full force and effect, at its own expense
and with financially sound and reputable insurance companies, insurance in such
amounts, with such deductibles and covering such risks as is customarily carried
by companies engaged in the same or similar businesses and owning similar
properties in the localities where the Company or such Subsidiary operates,
including fire, extended coverage, business interruption, public liability,
property damage and worker’s compensation. Notwithstanding the foregoing, the
Company and its Subsidiaries may maintain a plan or plans of self-insurance to
such extent and covering such risks as is usual for companies of similar size
engaged in the same or similar businesses and owning similar
properties.
(d) Keeping of Records and Books
of Account. The Company shall, and shall cause each of its
Subsidiaries to, keep proper records and books of account, in which complete
entries shall be made in accordance with GAAP, reflecting all financial
transactions of the Company and its Subsidiaries.
(e) Inspection
Rights. The Company shall at any reasonable time and from time
to time permit the Bank or any of its agents or representatives to visit and
inspect any of the properties of the Company and its Subsidiaries and to examine
and make copies of and abstracts from the records and books of account of the
Company and its Subsidiaries, and to discuss the business affairs, finances and
accounts of the Company and any such Subsidiary with any of the officers,
employees or accountants of the Borrower or such Subsidiary.
(f) Compliance with Laws,
Etc. The Company shall, and shall cause each of its
Subsidiaries to, comply in all respects with the requirements of all applicable
laws, rules, regulations and orders of any Governmental Authority (including all
Environmental Laws) and the terms of any indenture, contract or other instrument
to which it may be a party or under which it or its properties may be bound,
except to the extent that such non-compliance could not reasonably be expected
to result in a Material Adverse Effect.
(g) Maintenance of Properties,
Etc. The Company shall, and shall cause each of its
Subsidiaries to, maintain and preserve all of its properties necessary or useful
in the proper conduct of its business in good working order and condition in
accordance with the general practice of other corporations of similar character
and size, ordinary wear and tear excepted, except where the failure to do so
could not reasonably be expected to result in a Material Adverse
Effect.
(h) Licenses. The
Company shall, and shall cause each of its Subsidiaries to, obtain and maintain
all licenses, authorizations, consents, filings, exemptions, registrations and
other governmental approvals necessary or useful in connection with the
execution, delivery and performance of the Credit Documents, the consummation of
the transactions therein contemplated or the operation and conduct of its
business and ownership of its properties, except
SF:145015.1
37.
where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect.
(i) Action Under Environmental
Laws. The Company shall, and shall cause each of its
Subsidiaries to, upon becoming aware of the presence of any Hazardous Substance
or the existence of any environmental liability under applicable Environmental
Laws with respect to the Premises, take all actions, at their cost and expense,
as shall be necessary or advisable to investigate and clean up the condition of
the Premises, including all removal, containment and remedial actions, and
restore the Premises to a condition in compliance with applicable Environmental
Laws except where the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
(j) Use of
Proceeds. The Company shall use the proceeds of the Loans (and
Letters of Credit) solely for general working capital purposes and shall not use
the proceeds to purchase or extend credit for the purchase of Margin Stock or
for the purpose of financing any Hostile Acquisition.
(k) Further Assurances and
Additional Acts. The Company shall execute, acknowledge,
deliver, file, notarize and register at its own expense all such further
agreements, instruments, certificates, documents and assurances and perform such
acts as the Bank shall reasonably deem necessary or appropriate to effectuate
the purposes of the Credit Documents, and promptly provide the Bank with
evidence of the foregoing satisfactory in form and substance to the
Bank.
(l) Compliance with
ERISA. The Company shall, and shall cause each of its ERISA
Affiliates to: (i) maintain each Plan in compliance in all material respects
with the applicable provisions of ERISA, the Code and other federal or state
law; (ii) cause each Plan which is qualified under Section 401(a) of the Code to
maintain such qualification; and (iii) make all required contributions to any
Plan subject to Section 412 of the Code.
(m) Guaranty. Prior
to or contemporaneously with the delivery to the Bank of any request that a
Credit be made available to any Subsidiary of the Company, the Company shall
have executed and delivered to the Agent the Guaranty with respect to such
Subsidiary, and shall have executed and delivered such amendments or supplements
thereto and such other agreements, documents and certifications as the Bank may
request, to establish and confirm (a) that such Subsidiary is a Guaranteed
Subsidiary and (b) the unconditional Guarantee by the Company with respect to
Obligations of such Guaranteed Subsidiary.
SECTION
6.04 Negative
Covenants. So long as any of the Obligations shall remain
unpaid or the Bank shall have any Commitment, the Company agrees
that:
(a) Liens; Negative
Pledges. The Company shall not, and shall not permit any of
its Subsidiaries to, create, incur, assume or suffer to exist any Lien upon or
with respect to any of its properties, revenues or assets, whether now owned or
hereafter acquired, other than Permitted Liens.
SF:145015.1
38.
(b) Change in Nature of
Business. The Company shall not, and shall not permit any of
its Subsidiaries to, engage in any material line of business substantially
different from a Core Business or a related, associated or integrated activity
with a Core Business.
(c) Restrictions on Fundamental
Changes. The Company will not, and will not permit any of its
Subsidiaries to, merge with or consolidate into, or acquire all or substantially
all of the assets of, any Person, or sell, transfer, lease or otherwise dispose
of (whether in one transaction or in a series of transactions) all or
substantially all of its assets, except that:
(i) any
of the Company’s Subsidiaries may (A) merge with, consolidate into or transfer
all or substantially all of its assets to another of the Company’s Wholly-Owned
Subsidiaries and in connection therewith such Subsidiary may be liquidated or
dissolved, or (B) merge with, consolidate into or transfer all or substantially
all of its assets to the Company and in connection therewith such Subsidiary may
be liquidated or dissolved; and
(ii) the
Company may merge with, acquire or consolidate into any other Person, provided that (A) the
Company is the surviving corporation, (B) that the surviving entity will comply
with the covenants in Section 6.02 on a pro
forma basis (as if the entity acquired had been acquired as of the date on which
such covenants are calculated), and (C) no such merger, acquisition or
consolidation shall be made while there exists a Default or Event of Default or
if a Default or Event of Default would occur as a result thereof.
(d) Transactions with Related
Parties. The Company shall not, and shall not permit any of
its Subsidiaries to, enter into any transaction, including the purchase, sale or
exchange of property or the rendering of any services, with any Affiliate, any
officer or director thereof or any Person which beneficially owns or holds 5% or
more of the equity securities, or 5% or more of the equity interest, thereof (a
“Related
Party”), or enter into, assume or suffer to exist, or permit any
Subsidiary to enter into, assume or suffer to exist, any employment or
consulting contract with any Related Party, in each case, that results in, or
could reasonably be expected to result in, a Material Adverse Effect or except
as contemplated by this Agreement or in the ordinary course of business and
pursuant to the reasonable requirements of the business of the Company or such
Subsidiary and upon fair and reasonable terms no less favorable to the Company
or such Subsidiary than would obtain in a comparable arm’s-length transaction
with a Person who is not a Related Party.
(e) Hazardous
Substances. The Company shall not, and shall not permit any of
its Subsidiaries to, use, generate, manufacture, install, treat, release, store
or dispose of any Hazardous Substances, except in material compliance with all
applicable Environmental Laws.
(f) Accounting
Changes. The Company shall not, and shall not suffer or permit
any of its Subsidiaries to, make any significant change in accounting treatment
or reporting practices, except as required or permitted by GAAP.
(g) Disposition of
Assets. The Company shall not, and shall not suffer or permit
any Subsidiary to, directly or indirectly, sell, assign, lease, convey, transfer
or otherwise
SF:145015.1
39.
dispose
of (whether in one or a series of transactions) any property (including accounts
and notes receivable, with or without recourse) or enter into any agreement to
do any of the foregoing, except:
(i) dispositions
of inventory, or used, worn-out or surplus equipment, all in the ordinary course
of business;
(ii) the
sale of equipment to the extent that such equipment is exchanged for credit
against the purchase price of similar replacement equipment, or the proceeds of
such sale are reasonably promptly applied to the purchase price of such
replacement equipment;
(iii) dispositions
by the Company or any Subsidiary to the Company or any Wholly-Owned Subsidiary
of the Company pursuant to reasonable business requirements and in the ordinary
course of business;
(iv) the
sale of cash equivalents and other short term money market investments in the
ordinary course of business pursuant to the Company’s usual and customary cash
management policies and procedures;
(v) the
sale of equity investments in Persons not Subsidiaries of the Company which
sales are made for fair market value; and
(vi) dispositions
not otherwise permitted hereunder which are made for fair market value; provided that (i) at
the time of any disposition, no Event of Default shall exist or shall result
from such disposition, (ii) the aggregate sales price from such disposition
shall be paid in cash, and (iii) the aggregate book value of all such assets or
property so sold by the Company and its Subsidiaries shall at no time exceed an
amount equal to 25% of the Company’s Total Assets (determined as of the date of
any such disposition).
(h) ERISA. The
Company shall not, and shall not suffer or permit any of its ERISA Affiliates
to: (a) engage in a prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan which has resulted or could
reasonably be expected to result in liability of the Company in an aggregate
amount in excess of $50,000,000; or (b) engage in a transaction that could
be subject to Section 4069 or 4212(c) of ERISA.
ARTICLE
VII.
EVENTS
OF DEFAULT
SECTION
7.01 Events of
Default. Any of the following events which shall occur shall
constitute an “Event
of Default”:
(a) Payments. The
Company shall fail to pay (i) when due any amount of principal of, or interest
on, any Loan, or (ii) within five Business Days any fee or other amount payable
under any Credit Document.
SF:145015.1
40.
(b) Representations and
Warranties. Any representation or warranty by the Company
under or in connection with the Credit Documents shall prove to have been
incorrect in any material respect when made or deemed made.
(c) Failure by the Company to
Perform Certain Covenants. The Company shall fail to perform
or observe any term, covenant or agreement contained in Section 6.01(b)(i),
6.0l(b)(ii),
6.02, subsections (a) or
(j) of Section 6.03 or Section
6.04.
(d) Failure by the Company to
Perform Other Covenants. The Company shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement or any
other Credit Document on its part to be performed or observed and any such
failure shall remain unremedied for a period of 30 days from the occurrence
thereof.
(e) Insolvency; Voluntary
Proceedings. The Company or any Subsidiary (i) ceases or
fails to be Solvent, or generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing.
(f) Involuntary
Proceedings. (i) Any involuntary Insolvency Proceeding is
commenced or filed against the Company or any Subsidiary, or any writ, judgment,
warrant of attachment, execution or similar process, is issued or levied against
a substantial part of the Company’s or any Subsidiary’s properties, and any such
proceeding or petition shall not be dismissed, or such writ, judgment, warrant
of attachment, execution or similar process shall not be released, vacated or
fully bonded within 60 days after commencement, filing or levy; (ii) the Company
or any Subsidiary admits the material allegations of a petition against it in
any Insolvency Proceeding, or an order for relief (or similar order under
non-U.S. 1aw) is ordered in any Insolvency Proceeding; or (iii) the Company or
any Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or
business.
(g) Default Under Other
Indebtedness. (i) The Company or any of its Subsidiaries shall
fail (A) to make any payment of any principal of, or interest or premium on, any
Indebtedness (other than in respect of the Loans or any Rate Contract) having an
aggregate principal amount (including undrawn committed or available amounts and
including amounts owing to all creditors under any combined or syndicated credit
arrangement) of more than $25,000,000 (or its equivalent in another currency)
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) and such failure shall continue after the applicable grace
period, if any, specified in the agreement or instrument relating to such
Indebtedness as of the date of such failure; or (B) to perform or observe any
term, covenant or condition on its part to be performed or observed under any
agreement or instrument relating to any such Indebtedness, when required to be
performed or observed, and such failure shall continue after the applicable
grace period, if any, specified in such agreement or instrument, if the effect
of such failure to perform or observe is to accelerate, or to permit the
acceleration of,
SF:145015.1
41.
the
maturity of such Indebtedness; or (ii) any such Indebtedness shall be declared
to be due and payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof; or (iii)
any facility or commitment available to the Company or any Subsidiary relating
to Indebtedness in an aggregate amount at any one time of not less than
$25,000,000 (or its equivalent in any other currency) is withdrawn, suspended or
cancelled by reason of any default (however described) of the Company or such
Subsidiary; or (iv) there occurs under any Rate Contract an Early Termination
Date (as defined in the master agreement governing such Rate Contract) resulting
from (A) any event of default under such Rate Contract as to which the Company
or any Subsidiary is the Defaulting Party (as defined in the master agreement
governing such Rate Contract) or (B) any Termination Event (as so defined) as to
which the Company or any Subsidiary is an Affected Party (as so defined), and,
in either event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than $25,000,000 (or its equivalent in
another currency).
(h) Judgments. (i)
A final judgment or order for the payment of money in excess of $25,000,000 (or
its equivalent in another currency) which is not fully covered by third-party
insurance shall be rendered against the Company or any of its Subsidiaries; or
(ii) any non-monetary judgment or order shall be rendered against the Company,
or any such Subsidiary which has or would reasonably be expected to have a
Material Adverse Effect; and in each case there shall be any period of 10
consecutive days during which such judgment continues unsatisfied or during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect.
(i) ERISA. (i)
An ERISA Event shall occur with respect to a Pension Plan or Multiemployer Plan
which has resulted or could reasonably be expected to result in liability of the
Company under Title IV of ERISA to the Pension Plan, Multiemployer Plan or the
PBGC in an aggregate amount in excess of $50,000,000; (ii) the aggregate amount
of Unfunded Pension Liability among all Pension Plans at any time exceeds
$50,000,000; or (iii) the Company or any ERISA Affiliate shall fail to pay when
due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under Section 4201 of ERISA
under a Multiemployer Plan in an aggregate amount in excess of
$50,000,000.
(j) Dissolution,
Etc. The Company or any of its Subsidiaries shall (i)
liquidate, wind up or dissolve (or suffer any liquidation, wind-up or
dissolution), except to the extent expressly permitted by Section 6.04, (ii)
suspend its operations other than in the ordinary course of business, or (iii)
take any corporate action to authorize any of the actions or events set forth
above in this subsection
(j).
(k) Material Adverse
Effect. A Material Adverse Effect shall occur.
(l) Change of
Control. There occurs any Change of Control.
SECTION
7.02 Effect of Event of
Default. If any Event of Default shall occur and be
continuing, the Bank may (i) by notice to the Company, (A) declare the
Commitment and any obligation of the Bank to make Loans or issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (B)
declare the entire unpaid principal amount of the Loans,
SF:145015.1
42.
all
interest accrued and unpaid thereon and all other Obligations to be forthwith
due and payable, and declare an amount equal to the maximum aggregate amount
that is or at any time thereafter may become available for drawing under any
outstanding Letters of Credit (whether or not any beneficiary shall have
presented, or shall be entitled at such time to present, the drafts or other
documents required to draw under such Letters of Credit) to be immediately due
and payable, whereupon such amount with respect to the Loans, the Letters of
Credit, all such accrued interest and all such other Obligations shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower, provided that if an
event described in Sections 7.01(e) or
7.01(f) shall
occur, the result which would otherwise occur only upon giving of notice by the
Bank to the Company as specified in this clause (i) shall occur automatically,
without the giving of any such notice; and (ii) whether or not the actions
referred to in clause (i) have been taken, proceed to enforce all other rights
and remedies available to the Bank under the Credit Documents and applicable
law.
ARTICLE
VIII.
MISCELLANEOUS
SECTION
8.01 Obligations of the
Bank. The Bank shall not be obligated to issue any further
credits, or in any other manner to extend any other financial accommodation to
the Company or any of its Subsidiaries, other than as set forth in a writing
signed by the Bank.
SECTION
8.02 Joint and Several
Obligations. All liabilities and obligations of any Subsidiary
of the Company to the Bank hereunder or under any other Credit Document shall be
the joint and several liability and obligation of the Company and such
Subsidiary.
SECTION
8.03 Amendments and
Waivers. No amendment or waiver of any provision of this
Agreement or any other Credit Document and no consent with respect to any
departure by the Company therefrom, shall in any event be effective unless the
same shall be in writing and signed by the Bank and the Company, and such waiver
shall be effective only in the specific instance and for the specific purpose
for which given. .
SECTION
8.04 Notices.
(a) All
notices, requests, consents, approvals, waivers and other communications shall
be in writing (including, unless the context expressly otherwise provided, by
facsimiles transmission, provided that any matter transmitted by the Company by
facsimile (i) shall be immediately confirmed by a telephone call to the
recipient at the number specified below with respect to such Person, and (ii)
shall be followed promptly by delivery of a hard copy original thereof) and
mailed, telecopied or delivered to the Company and the Bank as
follows:
SF:145015.1
43.
If to the Company:
National Semiconductor Corporation (or
any of its Subsidiaries)
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
MS 10-330 (Treasury)
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Treasurer
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
National Semiconductor
Corporation
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Bank:
Bank of America, N.A.
CPG - High Technology 3697
Mail Code: CA5-705-12-08
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing
Director
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or, as to
each party at such other address as shall be designated by such party in a
written notice to the other parties.
(b) All
such notices, requests and communications shall, when transmitted by overnight
delivery, or faxed, be effective when delivered for overnight (next-day)
delivery, or transmitted in legible form by facsimile machine, respectively, or
if mailed, upon the third Business Day after the date deposited into the U.S.
mail, or if delivered, upon delivery; except that notices to the Bank shall not
be effective until actually received by the Bank.
(c) Any
agreement of the Bank herein to receive certain notices by telephone or
facsimile is solely for the convenience and at the request of the Company. The
Bank shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Company to give such notice and the Bank shall not have
any liability to the Company or other Person on account of any action taken or
not taken by the Bank in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay any of the Credits shall not be affected in
any way or to any extent by any failure by the bank to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Bank of
a confirmation which is at
SF:145015.1
44.
variance
with the terms understood by the Bank to be contained in the telephonic or
facsimile notice.
SECTION
8.05 No Waiver; Cumulative
Remedies.
(a) No
failure or delay by the Bank in exercising any right or power hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and remedies of the Bank
hereunder are cumulative and are not exclusive of any rights or remedies that it
would otherwise have. No waiver of any provision of this Agreement or consent to
any departure by the Company therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Loan or issuance of a Letter of Credit or making available any other
Credit shall not be construed as a waiver of any Default, regardless of whether
the Bank may have had notice or knowledge of such Default at the
time.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Company and the Bank.
SECTION
8.06 Expenses. The
Company agrees:
(a) to
pay or reimburse the Bank on demand for all its costs and expenses incurred in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement or modification to, this Agreement,
any other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation of the transactions contemplated
hereby or thereby, including Attorney Costs with respect there to;
(b) to
pay or reimburse the Bank for all its costs and expenses incurred in connection
with the enforcement or preservation of any rights under this Agreement and any
other Credit Document, and any such other documents, including Attorney Costs;
and
(c) to
pay or reimburse the Bank on demand for all appraisal, audit, search and filing
fees, incurred or sustained by the Bank in connection with the matters referred
to under paragraphs (a) and (b) above.
The
agreements in this Section shall survive payment of all other
Obligations.
SECTION
8.07 Indemnity. The
Company agrees:
(a) to
pay, indemnify, and hold the Bank harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in
SF:145015.1
45.
connection
with the execution and delivery of, or consummation of any of the transactions
contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement and any other Credit
Documents; and
(b) to
indemnify and hold harmless the Bank and its Affiliates and their respective
officers, directors, agents and employees (each, an “Indemnified Person”)
from and against any and all claims, damages, liabilities, costs and expenses
(including reasonable Attorney Costs) which may be incurred by or asserted
against such Indemnified Person in connection with or arising out of any
investigation, litigation or proceeding related to this Agreement, any other
Credit Documents, or the transactions contemplated hereby or thereby, and the
preparation of documentation in connection therewith, whether or not the Bank is
a party thereto; provided, however, that the Company shall not be required to
indemnify any such Indemnified Person from or against any portion of such
claims, damages, liabilities or expenses arising out of gross negligence or
willful misconduct of such Indemnified Person. Each Indemnified Person will use
its reasonable efforts to provide the Company with prompt notice of material
information with respect to any claim under clause (a) or (b) above asserted
against such Indemnified Person (so long as giving such notice or information
does not otherwise violate any applicable Requirement of Law or cause the waiver
of any evidentiary privilege); provided that any failure or delay in giving any
such notice or information shall not give rise to any defense, right of setoff
or counterclaim with respect to any indemnification obligation of the Company
hereunder.
The
agreements in this Section shall survive payment of all other
Obligations.
SECTION
8.08 Headings. Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
SECTION
8.09 Successors and
Assigns. This Agreement and the other Credit Documents shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, and the Guaranteed Subsidiaries, except that
neither the Company nor any of the Guaranteed Subsidiaries may assign or
transfer any of its rights under this Agreement or any other Credit Document
without the prior written consent of the Bank.
SECTION
8.10 Assignments, Participations,
Etc.
(a) The
Bank may at any time and from time to time, with the written consent of the
Company at all times other than during the existence of an Event of Default,
which consent shall not be unreasonably withheld, assign and delegate to one (1)
or more Eligible Assignees and may, without the consent of the Company, assign
to any of its 100% owned Affiliates (each an “Assignee”) all, or
any part of all, of the Credits, the Commitment and the other rights and
obligations of the Bank hereunder and under the other Credit
Documents.
(b) The
Bank may at any time sell to one (1) or more banks or other Persons (a “Participant”)
participating interests in any Credit, the Commitment or any other interest of
the Bank in this Agreement or any other Credit Document, provided, however,
that, unless
SF:145015.1
46.
otherwise
consented to by the Company in writing (which consent shall not be required if
an Event of Default shall then exist and shall not be unreasonably withheld),
(i) the Bank’s obligations under this Agreement and the other Credit Documents
shall remain unchanged, (ii) the Bank shall remain solely responsible for
the performance of such obligations, and (iii) the Company and the Guaranteed
Subsidiaries, as the case may be, shall continue to deal directly with the Bank
in connection with the Bank’s rights and obligations under this Agreement and
the other Credit Documents. In the case of any such participation, the
Participant shall not have any rights under this Agreement, or any of the other
documents in connection herewith, and all amounts payable by the Company or any
Guaranteed Subsidiary hereunder shall be determined as if the Bank had not sold
such participation, except that the Company and each Guaranteed Subsidiary
agrees that if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a lender or other creditor under this Agreement or
other Credit Document.
(c) Notwithstanding
any other provision in this agreement, the Bank may at any time create a
security interest in, or pledge, all or any portion of its rights under and
interest in this agreement in favor of any Federal Reserve Bank in accordance
with Regulation A of the Federal Reserve Board or 31 U.S. Treasury Regulation
CFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or
security interest in any manner permitted under applicable law.
SECTION
8.11 Confidentiality. The
Bank agrees to take and to cause its Affiliates to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all
information identified as “confidential” or “secret” by the Company and provided
to it by any of the Company or any of its Subsidiaries under this Agreement or
any other Credit Document, and neither it nor any of its Affiliates shall use
any such information other than in connection with or in enforcement of this
Agreement and the other Credit Documents or in connection with any other
business now or hereafter existing or contemplated with any of the Company or
any of its Subsidiaries; except to the extent such information (i) was or
becomes generally available to the public other than as a result of disclosure
by the Bank, or (ii) was or becomes available on a nonconfidential basis from a
source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to the Bank; provided, however,
that the Bank may disclose such information (A) at the request or pursuant to
any requirement of any Governmental Authority to which the Bank is subject or in
connection with an examination of the Bank by any such authority; (B) pursuant
to subpoena or other court process; (C) when required to do so in accordance
with the provisions of any applicable Requirement of Law; (D) to the extent
reasonably required in connection with any litigation or proceeding to which the
Bank or its Affiliates may be party; (E) to the extent reasonably required in
connection with the exercise of any remedy hereunder or under any other Credit
Document; (F) to the Bank’s independent auditors and other professional
advisors; (G) to any Participant or Assignee, actual or potential, provided that
such Person agrees in writing to keep such information confidential to the same
extent required of the Bank hereunder; (H) as expressly permitted under the
terms of
SF:145015.1
47.
any other
document or agreement regarding confidentiality to which the Company or any of
its Subsidiaries is party to or is deemed party with the Bank or such Affiliate;
and (I) to its Affiliates. If reasonable to do so under the circumstances, prior
to disclosing pursuant to clause (ii)(B) or clause (ii)(D) any
information identified by the Company as “confidential” or “secret,” the Bank
subject to such process, proceeding or litigation shall provide the Company with
notice thereof (so long as such notice does not otherwise violate any applicable
Requirement of Law).
SECTION
8.12 Set-off. Upon
the occurrence and during the continuance of any Event of Default, the Bank
shall have the right, without prior notice to the Company or any of its
Subsidiaries, any such notice being expressly waived by the Company on behalf of
itself and each Subsidiary to the fullest extent permitted by applicable law, to
set-off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by the Bank to or for the credit or the account of the Company or any such
Subsidiary against any and all obligations of the Company now or hereafter
existing under this Agreement or any other Credit Document, irrespective of
whether or not the Bank shall have made demand under this Agreement or any other
Credit Document and although such obligations may be unmatured. The Bank agrees
promptly to notify the Company after any such set-off and application made by
the Bank, provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Bank
under this Section
8.12 are in addition to the other rights and remedies (including other
rights of set-off and security interests) which the Bank may have.
SECTION
8.13 Counterparts. This
Agreement may be executed by one or more of the parties to this Agreement in any
number of separate counterparts and all of said counterparts taken together
shall be deemed to constitute one and the same instrument.
SECTION
8.14 Severability. The
illegality or unenforceability of any provision of this Agreement or any
instrument or agreement required hereunder shall not in any way affect or impair
the legality or enforceability of the remaining provisions of this Agreement or
any instrument or agreement required hereunder.
SECTION
8.15 Judgment
Currency.
(a) If
any claim arising under or related to this Agreement or the other Credit
Documents or the Obligations or any part thereof is reduced to judgment
denominated in a Judgment Currency other than the Obligation Currency, the
judgment shall be for the greater of (i) the Equivalent Amount of the Judgment
Currency of the amount of the claim denominated in the Obligation Currency
including in the judgment, determined as of the date or dates the Indebtedness
related to such claim was loaned to or incurred by the Company, or (ii) such
Equivalent Amount determined as of the date of judgment. The Equivalent Amount
of any Obligation Currency amount in any Judgment Currency shall be calculated
at the spot rate for the purchase of the Obligation Currency with the Judgment
Currency quoted by the Bank in San Francisco, California, at approximately 8:00
a.m. on the date for determination specified above. For purposes of this
Section:
SF:145015.1
48.
(i) “Judgment Currency”
means the currency in which any judgment on any claim arising under or related
to this agreement is denominated.
(ii) “Obligation Currency”
means the currency in which the claim is denominated.
(b) The
Company shall indemnify the Bank against and hold the Bank harmless from all
loss and damage resulting from any change in exchange rates between the date any
claim is reduced to judgment and the date of payment (or, in the case of partial
payments, the date of each partial payment) thereof by the Company. This
indemnity shall constitute an obligation separate and independent from the other
obligations contained in this agreement, shall give rise to a separate and
independent cause of action, and shall continue in full force and effect
notwithstanding any judgment or order of a liquidated sum in respect of an
amount due hereunder or under any judgment or order.
SECTION
8.16 Governing Law and
Jurisdiction.
(a) THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF CALIFORNIA. THE LETTERS OF CREDIT SHALL (SUBJECT TO EXCEPTIONS NOTED IN
SUCH LETTERS OF CREDIT) BE ISSUED UNDER AND GOVERNED BY THE UNIFORM CUSTOMS AND
PRACTICE FOR DOCUMENTARY CREDITS AS MOST RECENTLY PUBLISHED BY THE INTERNATIONAL
CHAMBER OF COMMERCE.
(b) ANY
LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE
UNITED STATES OF AMERICA FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY AND THE BANK
HEREBY CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE JURISDICTION
OF THE AFORESAID COURTS. EACH OF THE COMPANY AND THE BANK HEREBY IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH .JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY AND THE BANK HEREBY WAIVE
PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE
BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
(c) EACH
PARTY TO THIS AGREEMENT IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER
PROVIDED FOR NOTICES IN SECTION
8.04. NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY
PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW.
SF:145015.1
49.
SECTION
8.17 WAIVER OF JURY
TRIAL. THE COMPANY, ON BEHALF OF ITSELF AND EACH GUARANTEED
SUBSIDIARY, AND THE BANK EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER CREDIT DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY
ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR BANK AFFILIATE, PARTICIPANT OR
ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE.
THE COMPANY, EACH GUARANTEED SUBSIDIARY AND THE BANK EACH AGREE THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION. AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER CREDIT DOCUMENTS
OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER CREDIT DOCUMENTS.
SECTION
8.18 Entire
Agreement. This Agreement, together with the other Credit
Documents, embodies the entire agreement and understanding between the Company
and the Bank and supersedes all prior or contemporaneous agreements and
understandings of such persons, verbal or written, relating to the subject
matter hereof and thereof.
SECTION
8.19 Inconsistency. In
the event that any term or provision of this Agreement may conflict with any
term or provision of any other Credit Document, unless otherwise expressly
provided in such other Credit Document, the term or provision of this Agreement
shall prevail.
SECTION
8.20 No Third Parties
Benefited. This Agreement is made and entered into for the
sole protection and legal benefit of the Company, the Guaranteed Subsidiaries,
the Bank and the Indemnified Persons, and their permitted successors and
assigns, and no other Person shall be a direct or indirect legal beneficiary of,
or have any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Credit Documents.
SECTION
8.21 Effect on Prior
Agreement. This Agreement is intended to amend, restate and
replace, without novation, the Prior Agreement. As of the Closing Date, all
obligations outstanding under the Prior Agreement, including all Prior Loans,
Prior Letters of Credit, Prior Acceptances and Prior Other Obligations, shall be
deemed Obligations owing hereunder.
(remainder
of page intentionally left blank)
.
SF:145015.1
50.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed and delivered in San Francisco, California by their proper and duly
authorized officers as of the day and year first above written.
THE
BORROWER
NATIONAL
SEMICONDUCTOR
CORPORATION
By: /s/ ▇▇▇▇▇ ▇.
Dahmen_______________
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President and Treasurer
By: /s/ Lieh ▇.
▇▇▇▇
Name:
Lieh ▇. ▇▇▇▇
Title:
Asst. Treasurer
THE BANK
BANK OF
AMERICA, N.A.
By: /s/ ▇▇▇▇▇
McMahon_______________
Name: ▇▇▇▇▇
▇▇▇▇▇▇▇
Title: Managing
Director
SF:145015.1
EXHIBIT
A
to
the Credit Agreement
FORM
OF GUARANTY
[see
attached form of Guaranty]
A-1
SF:145015.1
BORROWERS:
See Exhibit A of this Guaranty
GUARANTOR:
National Semiconductor Corporation
CONTINUING GUARANTY
(MULTICURRENCY)
To: BANK
OF AMERICA, N.A.
1. Definitions
“Bank”
means Bank of America, N.A.
“Borrowers”
means the entities identified as such in Exhibit A of this Guaranty
(individually, each a “Borrower”).
“Credit
Agreement” means that certain Credit Agreement dated as of October 30, 2000, by
and among Guarantor and Bank, as the same may from time to time be amended,
restated, supplemented or otherwise modified in accordance with its
terms.
“Guaranteed
Indebtedness” means the indebtedness, liabilities and other obligations of the
Borrowers to the Bank under or in connection with the Credit Agreement and the
other Credit Documents, including all unpaid principal of the Loans, all
interest accrued thereon, all fees due under the Credit Agreement and all other
amounts payable by any Borrower to the Bank thereunder or in connection
therewith. The terms “indebtedness,” “liabilities” and “obligations” are used
herein in their most comprehensive sense and include any and all advances,
debts, obligations and liabilities, now existing or hereafter arising, whether
voluntary or involuntary and whether due or not due, absolute or contingent,
liquidated or unliquidated, determined or undetermined, and whether recovery
upon such indebtedness, liabilities and obligations may be or hereafter become
unenforceable or shall be an allowed or disallowed claim under the Bankruptcy
Code or other applicable law.
“Guarantor”
means National Semiconductor Corporation.
“Obligation
Currencies” means the currencies in which the Guaranteed Indebtedness of the
Borrowers is denominated.
“Taxes”
means all taxes, levies, imposts, duties, fees, or other charges of whatsoever
nature however imposed by any country or any subdivision or authority of or in
that country in connection with this Guaranty or the Guaranteed Indebtedness or
payment thereof, and all interest, penalties or similar liabilities with respect
thereto, except such taxes as are imposed on or measured by Bank’s assets or net
income by the country or any subdivision or authority of or in that country in
which such Bank’s principal office or actual lending office is
located.
The “U.S.
Dollar Equivalent” of any amount denominated in any currency other than U.S.
Dollars shall be calculated at the spot rate for the purchase of the other
currency with
SF:145015.1
1.
US.
Dollars quoted by Bank in San Francisco, California, or Los Angeles, California,
at approximately 8:00 a.m., on the date for determination specified in this
Guaranty.
Unless
otherwise defined herein, all capitalized terms used in this Guaranty shall have
the meanings given to such terms in the Credit Agreement.
2. For
valuable consideration, Guarantor unconditionally guarantees and promises to pay
to Bank or order, on demand, at the place for payment of the Guaranteed
Indebtedness or at such other location as Bank may designate, any and all
Guaranteed Indebtedness of all Borrowers to Bank, in the Obligation
Currency.
3. This
is a continuing guaranty relating to any Guaranteed Indebtedness, including that
arising under successive transactions which shall either continue the Guaranteed
Indebtedness or from time to time renew it after it has been
satisfied.
4. All
payments or reimbursements under this Guaranty shall be made without setoff or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes. Guarantor agrees to cause all Taxes to be paid on behalf of
Bank directly to the appropriate governmental authority. If Guarantor is legally
prohibited from complying with this Paragraph, payments due to Bank under this
Guaranty shall be increased so that, after provisions for Taxes and all Taxes on
such increase, the amounts received by Bank will be equal to the amounts
required under this Guaranty if no Taxes were due on such payments, and Bank
shall pay such Taxes. Guarantor shall indemnify Bank for the full amount of
Taxes payable by Bank and any liabilities (including penalties, interest and
expenses) arising from such Taxes within thirty (30) days’ after any written
demand by Bank. Guarantor shall upon request of Bank provide evidence that all
applicable Taxes have been paid to the appropriate taxing authorities by
delivering to Bank official tax receipts or notarized copies thereof within
thirty (30) days after the due date for such Tax payment. The obligations of
Guarantor contained in this Paragraph shall survive the payment in full of all
the Guaranteed Indebtedness and Guarantor’s other obligations under this
Guaranty.
5. The
obligations hereunder are independent of the obligations of Borrowers, and shall
not be affected by any acts of any governmental authority affecting Borrowers,
including but not limited to any restrictions on the conversion of currency or
repatriation or control of funds or any total or partial expropriation of
Borrowers’ property, or by economic, political, regulatory or other events in
the countries where Borrowers are located. A separate action or
actions may be brought and prosecuted against Guarantor whether action is
brought against Borrowers or whether Borrowers be joined in any such action or
actions; and Guarantor waives the benefit of any statute of limitations
applicable to Borrowers.
6. Guarantor
authorizes Bank, without notice or demand and without affecting its liability
hereunder, from time to time, either before or after revocation hereof, to
(a) renew, compromise, extend, accelerate or otherwise change the time for
payment of, or otherwise change the terms of the Guaranteed Indebtedness, or any
part thereof, including increase or decrease of the rate of interest thereon;
(b) take and hold security for the payment of this Guaranty or any of the
Guaranteed Indebtedness, and exchange, enforce, waive, release,
fail
SF:145015.1
2.
to
perfect, sell, or otherwise dispose of any such security; (c) apply such
security and direct the order or manner of sale thereof as Bank in its
discretion may determine; and (d) release or substitute any one or more of the
endorsers or guarantors. These provisions apply as between Bank and Guarantor,
but shall not affect any agreements between Bank and any Borrower.
7. Guarantor
waives any right to require Bank to (a) proceed against Borrowers; (b) proceed
against or exhaust any security held from Borrowers; or (c) pursue any other
remedy in Bank’s power whatsoever. Guarantor waives any defense arising by
reason of any disability or other defense of Borrowers or by reason of the
cessation from any cause whatsoever of the liability of Borrowers (other than
cessation by reason of repayment in full), other than any defense arising out of
the gross negligence or willful misconduct of Bank. Until all Guaranteed
Indebtedness of Borrowers to Bank shall have been paid in full, Guarantor shall
have no right of subrogation, and waives any right to enforce any remedy which
Bank now has or may hereafter have against Borrowers, and waives any benefit of
and any right to participate in any security now or hereafter held by Bank. Bank
may foreclose, either by judicial foreclosures or by exercise of power of sale,
any deed of trust securing the Guaranteed Indebtedness, and, even though the
foreclosure may destroy or diminish Guarantor’s rights against Borrowers,
Guarantor shall be liable to Bank for any part of the Guaranteed Indebtedness
remaining unpaid after the foreclosure. Guarantor waives all presentments,
demands for performance, notices of nonperformance, protests, notices of
protest, notices of dishonor, and notices of acceptance of this Guaranty and of
the existence, creation, or incurring of new or additional indebtedness of the
Borrowers to the Bank.
8. Guarantor
waives any rights and defenses that are or may become available to Guarantor by
reason of Sections 2787 to 2855, inclusive, of the California Civil
Code.
9. No
provision or waiver in this Guaranty shall be construed as limiting the
generality of any other waiver contained in this Guaranty.
10. Guarantor
acknowledges and agrees that it shall have the sole responsibility for obtaining
from Borrowers such information concerning Borrowers’ financial conditions or
business operations as Guarantor may require, and that Bank has no duty at any
time to disclose to Guarantor any information relating to the business
operations or financial conditions of Borrowers.
11. Any
obligations of Borrowers to Guarantor, now or hereafter existing, including but
not limited to any obligations to Guarantor as subrogee of Bank or resulting
from Guarantor’s performance under this Guaranty, are hereby subordinated to the
Guaranteed Indebtedness of Borrowers. Such obligations of Borrowers to Guarantor
if Bank so requests shall be enforced and performance received by Guarantor as
trustee for Bank and the proceeds thereof shall be paid over to Bank on account
of the Guaranteed Indebtedness of Borrowers to Bank, but without reducing or
affecting in any manner the liability of Guarantor under the other provisions of
this Guaranty.
SF:145015.1
3.
12. This
Guaranty may be revoked at any time by Guarantor in respect to future
transactions, unless there is a continuing consideration as to such transactions
which Guarantor does not renounce. Such revocation shall be effective upon
actual receipt by Bank, at the address shown below or at such other address as
may have been provided to Guarantor for Bank, of written notice of revocation.
Revocation shall not affect any of Guarantor’s obligations or Bank’s rights with
respect to transactions which precede Bank’s receipt of such notice, regardless
of whether or not the Guaranteed Indebtedness related to such transactions,
before or after revocation, has been renewed, compromised, extended,
accelerated, or otherwise changed as to any of its terms, including time for
payment or increase or decrease of the rate of interest thereon, and regardless
of any other act or omission of Bank authorized hereunder. If this Guaranty is
revoked, returned, or canceled, and subsequently any payment or transfer of any
interest in property by Borrowers to Bank is rescinded or must be returned by
Bank to Borrowers, this Guaranty shall be reinstated with respect to any such
payment or transfer, regardless of any such prior revocation, return, or
cancellation.
13. Where
any one or more of Borrowers are corporations or partnerships, it is not
necessary for Bank to inquire into the powers of Borrowers or the powers of
officers, directors, partners or agents (collectively referred to as “authorized
signatories”) acting or purporting to act on Borrowers’ behalf (provided that,
if documents concerning the powers of such authorized signatories are provided
to Bank by Borrowers, such authorized signatories shall be listed and/or
identified in such documents), and any Guaranteed Indebtedness made or created
in reliance upon the professed exercise of such powers shall be guaranteed
hereunder.
14. Bank
may, without notice to Guarantor and without affecting Guarantor’s obligations
hereunder, assign the Guaranteed Indebtedness, and this Guaranty, in whole or in
part. Guarantor agrees that Bank may disclose to any prospective purchaser and
any purchaser of all or part of the Guaranteed Indebtedness any and all
information in Bank’s possession concerning Guarantor, this Guaranty and any
security for this Guaranty,
15. Guarantor
agrees to pay all reasonable attorney’s fees, the reasonable allocated costs of
Bank’s in-house counsel, and all other reasonable costs and expenses which may
be incurred by Bank in the enforcement of this Guaranty.
16. Where
there is but a single Borrower, then all words used herein in the plural shall
be deemed to have been used in the singular where the context and construction
so require; and when there is more than one Borrower named herein, the word
“Borrowers” shall mean all and any one or more of them.
17. This
Guaranty shall be governed by and construed according to the laws of the State
of California, United States of America.
[Remainder
of this page intentionally left blank.]
SF:145015.1
4.
IN
WITNESS WHEREOF, Guarantor has executed this Guaranty by its duly authorized
officers as of October 30, 2000.
NATIONAL
SEMICONDUCTOR
CORPORATION
By: /s/ ▇▇▇▇▇ ▇.
Dahmen______________
Name:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
Vice President and Treasurer
By: /s/ Lieh K.
Oung__________________
Name:
Lieh ▇. ▇▇▇▇
Title:
Asst. Treasurer
SF:145015.1
5.
EXHIBIT
A
GUARANTEED
SUBSIDIARIES
Borrowers:
SF:145015.1
EXHIBIT
B
to
the Credit Agreement
FORM
OF COMPLIANCE CERTIFICATE
Bank of
America, N.A.
CPG -
High Technology 3697
Mail
Code: CA5-705-12-08
▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇▇▇▇▇▇▇
Re: National Semiconductor
Corporation
Ladies
and Gentlemen:
This
Compliance Certificate is made and delivered pursuant to the Credit Agreement
(Multicurrency) dated as of October 30, 2000 (as amended, modified, renewed or
extended from time to time, the “Credit Agreement”) between National
Semiconductor Corporation (the “Company”) and Bank of America, N.A. (the
“Bank”), and reference is made thereto for full particulars of the matters
described therein. All capitalized terms used in this Compliance Certificate and
not otherwise defined herein shall have the meanings assigned to them in the
Credit Agreement. This Compliance Certificate relates to the accounting period
ending ________________, ____
I hereby
certify as of the date hereof that I am the [treasurer] of the Company, and
that, as such, I am authorized to execute and deliver this Certificate to the
Bank on the behalf of the Borrower and its consolidated Subsidiaries, and
that:
[Use
the following paragraph if this Certificate is delivered in connection with the
quarterly
financial
statements required by Section 6.01(a)(i) of the Credit Agreement.]
1. Attached
hereto are true and correct copies of the consolidated balance sheet of the
Company and its Subsidiaries as of the end of the fiscal quarter ended
___________ and the related consolidated statements of income, shareholders’
equity and cash flows of the Company and its Subsidiaries for such quarter and
the portion of the fiscal year through the end of such quarter, which are
complete and accurate in all material respects and fairly present the financial
condition of the Company and the Subsidiaries as at such date and the results of
operations of the Company and its Subsidiaries for the period ended on such date
and have been prepared in accordance with GAAP consistently applied, subject to
changes resulting from normal year-end audit adjustments and except for the
absence of notes.
or
[Use
the following paragraph if this certificate is delivered in connection with the
annual
financial
statements required by Section 6.01(a)(ii) of the Credit
Agreement.]
B-1
SF:145015.1
1. Attached
hereto are true and correct copies of the consolidated balance sheet of the
Company and its Subsidiaries as of the end of the fiscal year ended ____________
and the related consolidated statements of income, shareholders’ equity and cash
flows of the Company and its Subsidiaries for such fiscal year, prepared in
accordance with GAAP consistently applied, all in reasonable detail and setting
forth in comparative form the figures for the previous fiscal year, accompanied
by the report of ______________, which report is not qualified.
2. I
have reviewed the terms of the Credit Agreement and I have made, or caused to be
made under my supervision, a detailed review of the transactions and conditions
of the Company and its Subsidiaries during the accounting period covered by the
attached financial statements.
3. The
information set forth on Schedule 1 hereto (and any additional schedules hereto
setting forth further supporting detail) is true, accurate and complete as of
the end of such accounting period.
4. The
Company and its subsidiaries, during such period, have observed, performed or
satisfied all of the covenants and other agreements, and satisfied every
condition in the Credit Agreement to be observed, performed or satisfied by the
Company and its Subsidiaries.
5. The
representations and warranties of the Company contained in Article V of the
Credit Agreement are true and correct as though made on and as of the date
hereof (except to the extent such representations and warranties relate to an
earlier date, in which case they shall be true and correct as of such
date).
I hereby
further certify that (i) as of the date hereof no Default or Event of Default
has occurred and is continuing, and (ii) on and as of the date hereof, there has
occurred no Material Adverse Effect since May 28, 2000, except as may be set
forth in a separate attachment hereto describing in detail the nature of each
condition or event constituting an exception to the foregoing statements, the
period during which it has existed and the action which the Company is taking or
proposes to take with respect to each such condition or event.
IN
WITNESS WHEREOF, the undersigned officer has signed this Compliance Certificate
this ______ day of ___________, ____.
[Treasurer]
B-2
SF:145015.1
SCHEDULE
1
TO
COMPLIANCE CERTIFICATE
Dated
,
For the
Fiscal Quarter ended ,
|
Actual
|
Required
|
|
|
1.Section 6.02 (a) Minimum Consolidated Tangible Net
Worth
|
||
|
Consolidated
Tangible Net Worth Calculation
|
||
|
A.Consolidated
Shareholders’ Equity
|
$__________
|
|
|
B.Consolidated
Intangible Assets
|
$__________
|
|
|
C.Positive
Consolidated Net Income since August 27, 2000
|
$__________
|
|
|
D.0.50
times the amount set forth in
C
|
$__________
|
|
|
▇.▇▇▇
Proceeds of all Equity Securities issued by the Company since the
Closing Date
|
$__________
|
|
|
F.0.50
times the amount set forth in
E
|
$__________
|
|
|
G.Amount
paid in respect of repurchases of common stock of the Company from and
after August 27, 2000 (not to exceed $400,000,000 in the
aggregate)
|
$__________
|
|
|
Consolidated
Tangible Net Worth (A minus
B)
|
$__________
|
Not
less than an amount equal to 90% of Consolidated Tangible Net Worth
as of August 27, 2000, plus (i) the amount set forth in D, plus
(ii) the amount set forth in F, minus (iii) the amount set forth in
G
|
|
2. Section 6.02 (b) Minimum Quick
Ratio.
|
||
|
A. Consolidated
Quick Assets
|
||
|
B. Consolidated
Current Liabilities
|
||
|
Quick Ratio (ratio of A to
B)
|
___
to 1.0
|
Not
less than 1.0 to 1.0
|
B-3
3SF:145015.1