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EXHIBIT O
THIS REVOLVING LOAN AGREEMENT dated July 24, ▇▇▇▇
▇ ▇ ▇ ▇ ▇ ▇ ▇:
J.R. SIMPLOT COMPANY
(the "Borrower")
- and -
CANADIAN IMPERIAL BANK OF COMMERCE
Acting through its New York Agency
(the "Bank")
WHEREAS the Bank has agreed to establish a revolving credit in favor
of the Borrower upon the terms and conditions hereinafter set forth;
FOR GOOD AND VALUABLE CONSIDERATION the receipt and adequacy of
which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1
INTERPRETATION
1.1 DEFINITIONS
In this Agreement, the following terms will have the meanings set
out below unless the context requires otherwise:
(1) "ADVANCE" has the meaning set forth in Section 2.1(2) hereof.
(2) "AGREEMENT" means this Agreement (including the schedules to this
Agreement) as it (or they) may be amended, supplemented or restated from time to
time, and the expressions
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"hereof", "herein", "hereto", "hereunder", "hereby" and similar expressions
refer to this Agreement and not to any particular Section or other portion of
this Agreement.
(3) "BUSINESS DAY" means any day except Saturday, Sunday or any
statutory holiday in New York, New York or in Boise, Idaho.
(4) "COLLATERAL" has the meaning specified in the Pledge Agreement.
(5) "COLLATERAL MAINTENANCE REQUIREMENT" means, as of any date of
determination, 80% of the Market Value of the Collateral on such determination
date.
(6) "CONSENTS" means any consent, approval, authorization, permit,
license, franchise, privilege, grant, exemption and other similar concession of,
by or from any Official Body and "CONSENT" means any one of the Consents.
(7) "DESIGNATED MATURITY" has the meaning set forth in the 1991
Definitions.
(8) "EVENT OF DEFAULT" means an event specified in Section 7.1 hereof.
(9) "FEDERAL RESERVE BOARD" shall mean the Board of Governors of the
Federal Reserve System as constituted from time to time.
(10) "FUNDING DATE" has the meaning set forth in Section 2.1(2) hereof.
(11) "INTEREST PAYMENT DATE" means the first day of March, June,
September and December of each year during the term of this Agreement,
commencing September 1, 1998; provided that if such day is not a Business Day,
the Interest Payment Date shall be the following Business Day.
(12) "INTEREST PERIOD" means the period from and including an Interest
Payment Date (or, for the first Interest Period as to each Advance, a Funding
Date) to but excluding the next Interest Payment Date (or, for the last Interest
Period, the Maturity Date).
(13) "LIABILITIES" means all present and future indebtedness, liabilities
and obligations of every kind, nature and description (whether direct or
indirect, joint or several, absolute or contingent, matured or unmatured) of the
Borrower to the Bank under this Agreement, the Note and the Pledge Agreement
between the Parties dated contemporaneously herewith.
(14) "LIBOR" means, for each Interest Period, the rate determined
according to the 1991 Definitions published by the International Swaps and
Derivatives Association, Inc. (the "1991 Definitions") as USD-LIBOR-BBA for a
Designated Maturity of three months with the Reset Date (as such term is defined
in the 1991 Definitions) being the first day of such Interest Period; provided
that, if any Interest Period in respect of any Advance is a period of less than
three calendar months, then LIBOR for such Interest Period means the rate that
would be determined according to the 1991 Definitions as USD-LIBOR-BBA for a
Designated Maturity for a period equal to the period from the Funding Date for
such Advance to the next Interest
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Payment Date and, if such Designated Maturity is other than a number of whole
calendar months, by straight-line interpolation between the rates that would be
so determined on the basis of Designated Maturities of the next shorter and the
next longer number of whole calendar months.
(15) "LOAN" has the meaning given to it in Section 2.1(1).
(16) "LOAN COMMITMENT" means, as of any date of determination, the lesser
of 70% of the aggregate Market Value of the Collateral on such determination
date or $50,000,000.
(17) "MARGIN STOCK" has the meaning provided such term in Regulation U of
the Federal Reserve Board as in effect from time to time.
(18) "MARKET VALUE" has the meaning set forth in the Pledge Agreement.
(19) "MATURITY DATE" means November 30, 2003.
(20) "MICRON" means Micron Technology, Inc., or any successor thereof.
(21) "NOTE" means a note of the Borrower in favor of the Bank as
described in Section 2.3(1) hereof and in substantially the form annexed hereto
as Schedule A.
(22) "OFFICIAL BODY" means any government or political subdivision or any
agency, authority, bureau, central bank, commission, department or
instrumentality of either, or any court, tribunal, grand jury or arbitrator
whether foreign or domestic.
(23) "PARTY" means a party to this Agreement and any reference to a Party
includes its successors and permitted assigns; "PARTIES" means every Party.
(24) "PERSON" or "PERSON" includes an individual, partnership,
corporation (including a business trust), joint stock company, trust,
unincorporated association, joint venture or other entity or any Official Body.
(25) "PLEDGE AGREEMENT" means the agreement referred to in Section 4.1
hereof, and any amendments, restatements, substitutions or consolidations
thereof.
(26) "RESTRICTED SUBSIDIARY" means a "Restricted Subsidiary", from time
to time, as such term is used in the Credit Agreement dated as of October 23,
1997 among J.R. Simplot Company, Simplot Australia (Holdings) PTY Limited and
the various lenders named therein.
(27) "SELECTED SECURITIES" means 7,600,000 shares of common stock, $.10
par value (U.S.$) of Micron (New York Stock Exchange ticker symbol "MU").
(28) "UNITED STATES DOLLARS" and "$" mean the lawful currency of the
United States of America, unless otherwise specified.
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1.2 HEADINGS
The division of this Agreement into Sections, the insertion of
headings, and the provision of any table of contents are for convenience of
reference only and will not affect the construction or interpretation of this
Agreement.
1.3 STATUTE REFERENCES
Any reference in this Agreement to any statute or any section
thereof will, unless otherwise expressly stated, be deemed to be a reference to
such statute or section as amended, restated or re-enacted from time to time.
1.4 NUMBER AND GENDER
Unless the context requires otherwise, words importing the singular
number include the plural and vice versa. Any words importing gender includes
all genders.
1.5 BUSINESS DAYS
If any payment is required to be made or other action is required to
be taken pursuant to this Agreement on a day which is not a Business Day, then
such payment or action will be made or taken on the next Business Day.
1.6 CURRENCY AND PAYMENT OBLIGATIONS
Unless otherwise specified, all dollar amounts referred to in this
Agreement are stated in United States Dollars. All payments due on a particular
day must be received and available to the Bank not later than 2:00 p.m. on the
due date and any payment made after that time will be deemed to have been made
and received on the next Business Day.
1.7 CALCULATION OF INTEREST
In calculating interest payable under this Agreement for any period
of time, the first day of such period will be included and the last day of such
period will be excluded.
1.8 TIME
Unless otherwise expressly stated, any reference herein to a time
will mean New York, New York, local time.
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ARTICLE 2
THE CREDIT
2.1 ESTABLISHMENT OF CREDIT; LOAN FUNDING
(1) Upon the terms and conditions contained herein the Bank hereby
agrees to make a loan to Borrower (the "Loan") at the request of the Borrower,
and to increase the amount of such Loan from time to time at the Borrower's
request; provided that the Lender need not increase the amount of the Loan to
the extent the principal amount of the Loan, together with accrued interest,
would exceed the Loan Commitment.
(2) The Borrower may request the Bank to make an initial advance or to
make one or more subsequent advances (each, an "Advance") to increase the
principal amount of the Loan on any Business Day prior to the Maturity Date with
one Business Day's prior notice. If the Bank has received such notice by 2:00
p.m. on any Business Day, and subject to Section 2.1(1), the Bank shall send the
amount of the requested Advance to the account directed by the Borrower in such
notice in immediately available funds by 2:00 p.m. on the following Business Day
(each, a "Funding Date"). Amounts borrowed hereunder may be repaid and
reborrowed from time to time, subject to the terms of this Agreement.
2.2 UTILIZATION OF PROCEEDS
The Loan proceeds will be used by the Borrower for its general
corporate business purposes. By making any request to the Bank to make an
Advance, the Borrower represents that the proceeds of such Advance will not be
used to purchase or carry Margin Stock.
2.3 NOTE
(1) The Loan will be evidenced by a Note in favor of the Bank. The Note
will be substantially in the form set out in Schedule A hereto. The Bank is
hereby authorized to record the date and amount of each Advance and principal
and interest payment in respect of the Loan in its books and records. Such books
and records shall constitute prima facie evidence of the accuracy of the
information contained therein.
(2) Subject to Section 9.6, the Borrower agrees to execute and deliver
to the Bank such replacement Note as may be requested from time to time. In such
event, the Bank will return to the Borrower either the Note so replaced or, if
such Note has been lost or stolen, appropriate indemnities with respect to the
lost or stolen Note.
2.4 INTEREST RATE
The outstanding amount of the Loan for each applicable Interest
Period will bear interest at LIBOR minus .20% per annum; provided that interest
on any amounts not paid when due (including, to the extent permitted by
applicable law, interest on overdue interest) shall
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accrue at a rate per annum equal to LIBOR plus .30%. Such rate will be
calculated based on the actual number of days in each Interest Period and a
calendar year of 360 days. Interest on the Loan shall accrue from and including
the Funding Date of each Advance to but excluding the date of any repayment
thereof and shall be payable in arrears on each Interest Payment Date, on the
date of any principal repayment, at maturity (whether by demand, acceleration or
otherwise) and, after such maturity, on demand.
ARTICLE 3
REPAYMENT AND PREPAYMENT
3.1 MATURITY DATE
On the Maturity Date the Borrower will repay the Loan and will pay
all accrued but unpaid interest on the Loan.
3.2 PREPAYMENT
The Loan shall be prepayable by the Borrower at its option in
whole or in part on any Business Day with one Business Day's prior notice to the
Bank.
3.3 PREPAYMENT ON DEMAND BY THE BANK
(a) The Bank shall have the right to demand prepayment of the Loan
in whole or in part at any time; provided that the Bank shall give the Borrower
written notice (or telephone notice promptly confirmed in writing) of its intent
to demand prepayment of the Loan at least 15 days prior to the date of any such
prepayment.
(b) If on any day the amount of the Loan exceeds the Collateral
Maintenance Requirement the Borrower shall, within two Business Days following
receipt of notice from the Bank, prepay a portion of the Loan such that,
following such prepayment, the amount of the Loan is equal to or less than the
Loan Commitment.
3.4 BREAKAGE COSTS
If the Bank demands prepayment of, or if the Borrower prepays, all
or any part of the Loan pursuant to this Article 3, Article 7 or otherwise, the
Borrower will forthwith reimburse the Bank for actual costs and out-of-pocket
expenses (but not lost profits) reasonably incurred by the Bank as a result of
any matched funding or interest rate hedging arrangements entered into by the
Bank in support of the Loan.
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3.5 TERMINATION
(a) Notwithstanding the prepayment in full of the Loan, amounts paid
or prepaid on the Loan may be reborrowed in accordance with Article 2, and this
Agreement shall terminate prior to the Maturity Date only after notice given in
compliance with Section 3.5(b).
(b) The Borrower or the Bank may terminate this Agreement prior to
the Maturity Date on any Business Day by giving written notice (or telephone
notice promptly confirmed in writing) thereof at least 15 days prior to the
termination day specified in such notice; provided that, no termination of this
Agreement by the Borrower shall be effective until all of the Liabilities of the
Borrower shall have been discharged in full.
ARTICLE 4
SECURITY
4.1 PLEDGE AGREEMENT
As continuing collateral security for the payment and performance of
the obligations of the Borrower under this Agreement, the Borrower will pledge,
and grant a first charge and security interest in, the Collateral to the Bank.
Such Pledge Agreement will be in form and substance satisfactory to the Bank.
4.2 FILING OF SECURITY INTEREST
The Borrower covenants and agrees that it will, at Bank's expense,
upon thirty (30) days' prior written notice and in such manner and form as the
Bank may reasonably require, execute and deliver to the Bank for filing and
recordation any financing statement, and take any other action that may be
necessary or desirable in order to create, preserve, perfect or validate any
security interests granted or to enable the Bank to exercise and enforce its
rights under the Pledge Agreement with respect to any of the Collateral.
4.3 MAINTENANCE OF PERFECTION
The Borrower will not change its name or change the location of its
chief executive office unless it has provided the Bank with thirty (30) days'
prior written notice of such change.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES
5.1 To induce the Bank to enter into this Agreement, the Borrower hereby
represents and warrants to the Bank, upon each of which representations and
warranties the Bank specifically relies, as follows:
(a) Good Standing: It is a corporation duly incorporated and organized,
is validly existing under the laws of Nevada, is in good standing
and has its principal place of business in Boise, Idaho.
(b) Corporate Power: It has the corporate power to:
(i) own the Selected Securities; and
(ii) enter into and perform this Agreement, the Note and
the Pledge Agreement.
(c) Corporate Authorization: It has taken all necessary corporate action
to authorize the execution, delivery and performance of this
Agreement, the Note and the Pledge Agreement to which it is a party.
(d) Consents and Authorization: To the best of its knowledge, no
Consents of, or filing with, any person (including, without
limitation, any Official Body) are required in connection with the
execution, delivery or performance of its obligations under this
Agreement, the Note and the Pledge Agreement or the validity or
enforceability against it of them, except for such filings as may be
required under the federal or state securities laws of the United
States of America.
(e) Due Execution: It has duly executed and delivered this Agreement,
the Note and the Pledge Agreement.
(f) No Legal Bar: To the best of its knowledge, the execution, delivery
and performance of this Agreement and the borrowing of money by the
Borrower hereunder, the use by it of the proceeds of such borrowing,
the creation by the Pledge Agreement of the charge, pledge and
security interest over the Collateral and the realization process
contemplated in the Pledge Agreement will not violate any
requirement of law or any of its contractual obligations.
(g) No Material Litigation: To the best of its knowledge, no
investigation or proceeding of any Official Body is pending against
it or against any of its properties or revenues, existing or future,
which could reasonably be expected to have an adverse effect on the
Collateral, the Borrower's ownership of the
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Collateral or the Borrower's ability to perform its obligations
under the Pledge Agreement or this Agreement, and no litigation,
investigation or proceeding of or before any Official Body is, to
the best of the Borrower's knowledge, pending or threatened by or
against it or against any of its properties or revenues, existing or
future, which has or could reasonably be expected to have an adverse
effect on the Collateral, the Borrower's ownership of the Collateral
or its ability to perform its obligations under this Agreement or
the Pledge Agreement.
(h) Full Disclosure: To the best of its knowledge, there is no fact
which has not been disclosed to the Bank which will, so far as the
Borrower can now reasonably foresee, materially adversely affect the
Borrower's ability to perform its obligations under the Pledge
Agreement or this Agreement; to the best of its knowledge, but
without any review, investigation or participation by the Borrower
in the preparation of the filings of Micron Technology, Inc. with
the United States Securities and Exchange Commission pursuant to
section 13(a) of the United States Securities Exchange Act of 1934,
as amended, such filings do not contain any untrue statements of
material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, or in light of current circumstances, not
misleading.
(i) No Default: To the best of its knowledge, neither the execution nor
the delivery by it of this Agreement or the Pledge Agreement, the
consummation of the transactions herein and therein contemplated,
nor the compliance with the terms, conditions and provisions hereof
and thereof conflicts with, or will conflict with, or results or
will result in, any breach of, or constitutes a default under, any
of the provisions of its charter documents or by-laws or of any
material agreement or instrument to which it is a party or by which
it or the Collateral are bound.
(j) Financial Information: To the best of its knowledge, any financial
information regarding the Borrower that has been delivered by it to
the Bank is true and accurate in all material respects.
(k) Title: The Borrower has good and marketable title to the Collateral,
subject only to the Pledge Agreement.
(l) Security Interest: Upon execution of the Pledge Agreement and
transfer of the Selected Securities to the Bank in accordance with
the provisions of the Pledge Agreement, the Bank will have a valid
and perfected first priority security interest in the Selected
Securities as security for the Liabilities. The Selected Securities
are fully paid and non-assessable.
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ARTICLE 6
COVENANTS
6.1 AFFIRMATIVE COVENANTS
(a) Notice of Defaults: In addition to the covenants set out
elsewhere in this Agreement, the Borrower covenants and agrees with the Bank
that, except as otherwise permitted by the prior written consent of the Bank, it
will forthwith notify the Bank in writing of the occurrence of any Event of
Default or any event that with the giving of notice by the Bank or the passage
of time would become an Event of Default.
(b) Consents: Each party agrees it will use all reasonable efforts
to maintain in full force and effect all consents of any governmental or other
authority that are required to be obtained by it with respect to the Agreement
and will use all reasonable efforts to obtain any that may become necessary in
the future.
(c) Compliance: Each party agrees it will comply in all material
respects with all applicable laws and orders to which it may be subject if
failure so to comply would materially impair its ability to perform its
obligations under the Agreement.
(d) Requirements: Borrower shall from time to time forthwith on
Bank's request do, make and execute all documents, acts, matters and things as
may be required by Bank with respect to the Agreement or any part hereof or as
may be required to give effect to these presents.
(e) Inspection: Borrower shall permit any authorized representative
designated by the Bank to visit and inspect any of the properties of the
Borrower, including any financial and accounting records, and to make copies and
extracts therefrom, and to discuss its affairs, finances and accounts with its
officers and independent public accountants, upon reasonable notice, all at such
reasonable times during normal business hours and as often as may be reasonably
requested.
(f) Existence: Borrower agrees that it will maintain and preserve
its existence and organization. Borrower additionally covenants that it will not
voluntarily dissolve or wind up without first discharging its obligation under
the Agreement.
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ARTICLE 7
EVENTS OF DEFAULT
7.1 EVENTS OF DEFAULT
The occurrence of any one or more of the following events will
constitute an Event of Default under this Agreement:
(a) Payment Default: If the Borrower shall: (i) fail to pay any
principal due hereunder or under the Note, whether at maturity, upon
demand for prepayment by the Bank or otherwise, as and when due and
payable; (ii) fail to pay interest due hereunder or under the Note
as and when due and payable; or (iii) fail to pay any fee or other
amount due hereunder, within 3 Business Days after written notice
thereof;
(b) Failure to Perform Terms: If the Borrower defaults in the
performance or observance of any term, condition or covenant
contained in any of this Agreement, the Note or the Pledge
Agreement, other than as described in clause (a) of this Section
7.1, and in the case of a default capable of being remedied, such
default is not remedied within 30 days after written notice thereof
has been delivered by the Bank to the Borrower (or in the case of a
default under Section 12 of the Pledge Agreement, not remedied
within 3 Business Days after written notice thereof);
(c) Cross Default. If there shall occur (1) a default, event of default
or other similar condition or event (however described) in respect
of the Borrower or any Restricted Subsidiary of the Borrower under
one or more agreements or instruments relating to indebtedness of
any of them (individually or collectively) in an aggregate amount of
not less than the $5,000,000 which has resulted in such indebtedness
becoming due and payable under such agreements or instruments,
before it would otherwise have been due and payable or (2) a default
by such party or such Restricted Subsidiary (individually or
collectively) in making one or more payments on the due date thereof
in an aggregate amount of not less than the $5,000,000 under such
agreements or instruments (after giving effect to any applicable
notice requirement or grace period);
(d) Default under Specified Transaction: The Borrower or any Restricted
Subsidiary of the Borrower (1) defaults under any swap, derivative
or other notional contract with the Bank and, after giving effect to
any applicable notice requirement or grace period, there occurs a
liquidation of, an acceleration of obligations under, or any early
termination of any such contract, (2) defaults, after giving effect
to any applicable notice requirement or grace period, in making any
payment or delivery due on the last payment, delivery or exchange
date of, or any payment on early termination of any such contract
(or such default continues for at least
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three Business Days if there is no applicable notice requirement or
grace period) or (3) disaffirms, disclaims, repudiates or rejects,
in whole or in part, any such contract (or such action is taken by
any person or entity appointed or empowered to operate it or act on
its behalf);
(e) Representations and Warranties: If any representation, warranty or
statement which is made in this Agreement or the Pledge Agreement is
untrue or incorrect in any material respect when made;
(f) Documents Not Legally Binding: If any obligation or other provision
in this Agreement, the Note or the Pledge Agreement that is material
in the opinion of the Bank acting reasonably terminates or ceases to
be legally valid, binding and enforceable against the Borrower or if
the security interest created by the Pledge Agreement ceases to be a
first priority perfected security interest in favor of the Bank
other than by reason of the Bank's action or inaction;
(g) Withdrawal of Necessary Consents: If any Consents required to
make this Agreement, the Note or the Pledge Agreement legal, valid,
binding and enforceable, in any material respect, or required in
order to enable the Borrower to perform its obligations thereunder,
in any material respect, are withdrawn or cease to be in full force
and effect;
(h) Bankruptcy: The Borrower generally does not pay its debts as such
debts become due, or shall admit in writing its inability to pay its
debts generally, or shall make a general assignment for the benefit
of creditors; or a proceeding shall be instituted by or against the
Borrower seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts
under the United States Bankruptcy Code or any other law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a
receiver, trustee, custodian or other similar official over a
material portion of the assets of the Borrower (such materiality
determination to be made against the assets of the Borrower at the
time of such appointment) and, in the case of any such proceeding
instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of 60
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall
occur; or the Borrower shall take any corporate action to authorize
any of the actions set forth above in this paragraph; or
(i) The Bank shall fail to have a first priority perfected security
interest in the Collateral for any reason within the control of
Borrower.
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All periods contained in this Section which allow the Borrower an
opportunity to cure an Event of Default will, subject to applicable law, run
concurrently with any requirements for notice under any U.S. or other applicable
law.
7.2 ACCELERATION AND ENFORCEMENT
Upon the occurrence of an Event of Default, all obligations of the
Borrower to the Bank under this Agreement and the Note will, at the sole option
of the Bank and without written notice to the Borrower (except as required by
law), immediately become due and payable without presentment, demand, protest or
other notice of any kind, all of which are expressly waived by the Borrower, the
charge, pledge and security interest created by the Pledge Agreement will
thereupon become enforceable by the Bank or its duly authorized agent, and the
Bank may, at its option, enforce the Pledge Agreement and security interest.
ARTICLE 8
CONDITIONS PRECEDENT
8.1 GENERAL
(1) The obligation of the Bank to establish the Loan and to permit the
Borrower to draw the Loan is subject to the fulfillment of the following
conditions precedent to the satisfaction of the Bank, it being understood that
the said conditions are included for the exclusive benefit of the Bank and may
be waived in writing in whole or in part by the Bank at any time:
(a) Pledge Agreement: The Borrower will have duly authorized, executed
and delivered to the Bank the Pledge Agreement together with any
other reasonable documentation required by the Bank (including
delivery to the Bank of the Selected Securities in accordance with
the Pledge Agreement).
(b) Note: The Borrower will have executed and delivered the Note to the
Bank.
(c) Corporate Proceedings: The Borrower will have delivered to the Bank
all records of all corporate proceedings in connection herewith,
including without limitation, the following:
(i) certified copies of all corporate action taken by the Borrower
to authorize the borrowing hereunder and the execution and
delivery of this Agreement, the Note and the Pledge Agreement;
and
(ii) an incumbency Certificate.
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(d) Corporate Opinion: Counsel for the Borrower will have delivered to
the Bank an opinion with respect to the due authorization, execution
and delivery of this Agreement, the Note and the Pledge Agreement,
including an opinion that they are legally valid, binding and
enforceable obligations, and that the security interest in the
Collateral is perfected.
(e) Registration: The Securities and Exchange Commission ("SEC") shall
have declared effective a registration statement (File No. 333-5773)
filed by Micron on June 29, 1998 with the SEC under the Securities
Act of 1933 (the "Securities Act") with respect to all of the
Selected Securities, which registration statement has the effect of
permitting the transfer of the Selected Securities by the Bank as
permitted by this Agreement and the Pledge Agreement and as set
forth in the section of such registration statement captioned "Plan
of Distribution" without further registration under the federal
securities laws, subject to the Bank's delivery of any prospectus
required to be delivered by the Securities Act.
(f) UCC Financing Statements: The Borrower shall have filed UCC
financing statements in form acceptable to the Bank in all
jurisdictions necessary to perfect, for the benefit of the Bank, a
security interest in the Collateral.
8.2 REGISTRATION RIGHTS
Micron, the Bank and the Borrower have entered into a Registration
Rights Agreement dated as of the date hereof (the "Rights Agreement") pursuant
to which Micron has granted to the Bank and the Borrower certain rights to
request that Micron effect the registration under the Securities Act of the
7,600,000 shares of Micron common stock (the "Loan Shares") that are the subject
of this Agreement.
The Bank and the Borrower acknowledge that the rights to request
registration granted under the Rights Agreement are intended by the Bank and the
Borrower to facilitate transactions between the Bank and the Borrower involving
the common stock of Micron, including the Loan contemplated by this Agreement.
Accordingly, the Borrower agrees that it will, take all other actions under the
Rights Agreement reasonably required to permit Micron to effect the registration
of the Loan Shares as contemplated therein.
The Bank and the Borrower have agreed in the Rights Agreement to pay
any Registration Expenses, as defined therein, incurred by Micron in connection
with any registration requested under the Rights Agreement. The Borrower and the
Bank agree that the Bank shall pay to Micron, or to the Borrower for payment to
Micron, the first $200,000.00 of such Registration Expenses and that the
Borrower shall pay to Micron any such Registration Expenses in excess of
$200,000.00. Each of the Bank and the Borrower shall pay its own fees and
expenses.
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ARTICLE 9
MISCELLANEOUS
9.1 NOTICES
(a) Any notice, certificate, consent, determination or other
communication required or permitted to be given or made under this Agreement
will be in writing and will be effectively given and made if (i) delivered
personally, (ii) sent by prepaid courier service or certified or registered
mail, return receipt requested or (iii) sent prepaid by fax or other similar
means of electronic communication, in each case to the applicable address set
out below:
(i) if to the Bank, to:
▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Executive Director
Canadian Imperial Bank of Commerce
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Executive Director, Financial Products
Canadian Imperial Bank of Commerce
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(ii) if to the Borrower, to:
J.R. Simplot Company
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Attn: Treasurer
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and
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J.R. Simplot Company
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(b) Any such communication so given or made will be deemed to have been
given or made and to have been received on the day of delivery if delivered, or
on the day of faxing or sending by other means of recorded electronic
communication, provided that such day in either event is a Business Day and the
communication is so delivered, faxed or sent prior to 4:30 p.m. on such day. If
so delivered, faxed or sent on or after 4:30 p.m. on such day, such
communication will be deemed to have been given and made and to have been
received on the next following Business Day. Any such communication sent by mail
will be deemed to have been given and made and to have been received on the
fifth Business Day following the mailing thereof; provided however that no such
communication will be mailed during any actual or apprehended disruption of
postal services. Any such communication given or made in any other manner will
be deemed to have been given or made and to have been received only upon actual
receipt.
(c) Any Party may from time to time change its address under this
Section by notice to the other Party given in the manner provided by this
Section.
9.2 TIME OF ESSENCE
Time will be of the essence of this Agreement in all respects.
9.3 NON-MERGER
The obligations of the Borrower contained in this Agreement (and to
the extent that those obligations are not repeated in the Pledge Agreement) will
survive the execution of
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the Pledge Agreement and the drawdown of the Loan, and the Borrower agrees that
those obligations will not be deemed to be merged in the execution of the Pledge
Agreement.
9.4 INTERPRETATION
This Agreement will be governed by and construed in accordance with
the laws of the State of New York without reference to conflict of law
provisions (other than Section 5- 1401 of the New York General Obligations Law).
9.5 SUBMISSION TO JURISDICTION
Any legal action or proceeding with respect to this agreement may be
brought in the courts of the State of New York, in the Borough of Manhattan, or
of the United States of America for the Southern District of New York, and, by
execution and delivery of this Agreement, the parties hereby accept for
themselves and in respect of their property, generally and unconditionally, the
jurisdiction of the aforesaid courts and any appellate courts to which any
decisions of such courts may be appealed. Each party hereto hereby irrevocably
consents to the service of process out of any of the aforementioned courts in
any action or proceeding by the mailing of copies thereof to such party by
registered or certified mail, postage prepaid, return receipt requested, to such
party at its address specified in section 9.1. The parties hereto hereby
irrevocably waive trial by jury, and the parties hereby irrevocably waive any
objection, including, without limitation, any objection to the laying of venue
or based on the grounds of forum non conveniens, which they may now or hereafter
have to the bringing of any such action or proceeding in such jurisdiction.
9.5 ASSIGNMENT
Without the prior written consent of the other Party, no Party may
assign or transfer, encumber or otherwise dispose of (whether by security or
otherwise) any part of its respective rights or obligations under this
Agreement, the Note or the Pledge Agreement.
9.6 AMENDMENTS TO AGREEMENT
Any amendments to this Agreement must be in writing and signed by an
officer of each of the Parties, duly authorized for such purpose.
9.7 EXPENSES OF ENFORCEMENT
(1) The Borrower agrees that the Bank may charge on its own behalf
and pay to others reasonable sums for expenses incurred and for services
rendered (expressly including reasonable legal expenses) in or in connection
with maintaining, protecting, disposing of, retaining, collecting or realizing
upon the Collateral and the Pledge Agreement or any part
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thereof and may apply the proceeds of realizing, disposing of or collecting upon
such Collateral or Pledge Agreement to the payment of such sums.
(2) The Bank agrees that the Borrower may charge on its own behalf
and pay to others reasonable sums for expenses incurred and for services
rendered (expressly including reasonable legal expenses) in or in connection
with recovering the Collateral or any part thereof in the event of the failure
by the Bank to return such Collateral to the Borrower in accordance with the
terms hereof.
9.8 RIGHTS AND WAIVERS
The rights and remedies of the Bank under this Agreement and the
Pledge Agreement:
(a) are cumulative;
(b) may be exercised as often and in such order as the Bank
considers appropriate;
(c) are in addition to its rights and remedies under applicable law;
and
(d) will not be capable of being waived or varied except by virtue
of an expressed waiver or variation in writing signed by an
officer of the Bank.
In particular, any failure to exercise or any delay in exercising any of such
rights and remedies will not operate as a waiver or variation of that or any
other such right or remedy; any defective or partial exercise of any of such
rights will not preclude any other or future exercise of that or any other such
right or remedy; and no act or course of conduct or negotiation on the part of
the Bank or on its behalf will in any way preclude it from exercising any such
right or remedy or constitute a suspension or variation of any such right or
remedy.
9.9 FURTHER ASSURANCES
The Borrower will promptly do, execute, deliver or will cause to be
done, executed and delivered all such further acts, documents and things in
connection with this Agreement that the Bank may reasonably require for the
purposes of giving effect to the provisions and purposes of the Agreement.
9.10 SEVERABILITY
Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction will, as to that jurisdiction, be ineffective to the extent
of such prohibition or unenforceability and will be severed from the balance of
this Agreement, all without affecting
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the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
9.11 COUNTERPARTS
This Agreement may be executed in counterparts, each of which will
be deemed to be an original and all of which taken together will be deemed to
constitute one and the same instrument.
9.12 NO OFFSET
The Bank agrees that it will not offset the Collateral, or any
obligations it owes to the Borrower to return the Collateral, against any
obligations owing by the Borrower to the Bank other than the Liabilities.
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IN WITNESS WHEREOF the Parties have caused this Agreement to be
executed as of the date first written above.
J.R. SIMPLOT COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Sr. Vice-President
CANADIAN IMPERIAL BANK OF
COMMERCE,
Acting through its New York Agency
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Director
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SCHEDULE A
NOTE
July 24, 1998
FOR VALUE RECEIVED, the undersigned unconditionally promises
to pay to Canadian Imperial Bank of Commerce acting through its New York Agency
(the "Bank") or order at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or such
other place as the Bank may direct in writing in accordance with the provisions
of the Revolving Loan Agreement (as amended or restated from time to time, the
"Loan Agreement") dated July 24, 1998 between J. R. Simplot Company and the
Bank, on the Maturity Date, or such earlier date as is provided in the Loan
Agreement, the amount the Bank has advanced to J. R. Simplot Company under the
Loan Agreement which remains unpaid from time to time with interest and
additional payments thereon in accordance with and on the dates set forth in the
Loan Agreement both before and after maturity, default and judgment, until paid.
This note evidences indebtedness incurred under, and is
subject to the terms and provisions of, the Loan Agreement, pursuant to which
the indebtedness evidenced hereby may become payable at any time. All initially
capitalized terms used herein and not otherwise defined have the meanings given
to them in the Loan Agreement.
J. R. SIMPLOT COMPANY
By:
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Name:
Title:
c/s
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