EXHIBIT 10.47
EXECUTION VERSION
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CREDIT AGREEMENT (364-DAY)
Dated as of December 6, 2001
among
SANMINA CORPORATION
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
CITICORP USA, INC.
as
Syndication Agent,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
as
Co-Arranger,
ABN AMRO BANK N.V.,
THE BANK OF NOVA SCOTIA
and
BARCLAYS BANK PLC
as
Co-Documentation Agents,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as
Sole Lead Arranger and Sole Book Manager
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TABLE OF CONTENTS
ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.01 Defined Terms...................................................................................1
1.02 Other Interpretive Provisions..................................................................20
1.03 Accounting Terms...............................................................................21
1.04 Rounding.......................................................................................21
1.05 References to Agreements and Laws..............................................................21
1.06 Currency Equivalents...........................................................................21
ARTICLE II. THE COMMITMENTS AND BORROWINGS.......................................................................21
2.01 Loans..........................................................................................21
2.02 Borrowings, Conversions and Continuations of Loans.............................................22
2.03 Prepayments....................................................................................23
2.04 Reduction or Termination of Commitments........................................................23
2.05 Repayment of Loans.............................................................................24
2.06 Interest.......................................................................................24
2.07 Fees...........................................................................................24
2.08 Computation of Interest and Fees...............................................................25
2.09 Evidence of Debt...............................................................................26
2.10 Payments Generally.............................................................................26
2.11 Sharing of Payments............................................................................28
2.12 Increase in Commitments........................................................................28
2.13 Security and Guaranty..........................................................................29
ARTICLE III. TAXES, YIELD PROTECTION AND ILLEGALITY..............................................................29
3.01 Taxes..........................................................................................29
3.02 Illegality.....................................................................................31
3.03 Inability to Determine Rates...................................................................32
3.04 Increased Cost and Reduced Return; Capital Adequacy; Reserves on Eurodollar Rate Loans.........32
3.05 Funding Losses.................................................................................33
3.06 Matters Applicable to all Requests for Compensation............................................34
3.07 Survival.......................................................................................34
ARTICLE IV. CONDITIONS PRECEDENT TO BORROWINGS...................................................................34
4.01 Conditions of Initial Borrowing................................................................34
4.02 Conditions to all Borrowings...................................................................37
ARTICLE V. REPRESENTATIONS AND WARRANTIES........................................................................38
5.01 Existence, Qualification and Power; Compliance with Laws.......................................38
5.02 Authorization; No Contravention................................................................38
5.03 Governmental Authorization; Other Consents.....................................................38
5.04 Binding Effect.................................................................................39
5.05 Financial Statements; No Material Adverse Effect...............................................39
5.06 Litigation.....................................................................................39
5.07 No Default.....................................................................................40
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5.08 Ownership of Property; Liens...................................................................40
5.09 Environmental Compliance.......................................................................40
5.10 Insurance......................................................................................40
5.11 Taxes..........................................................................................40
5.12 ERISA Compliance; Foreign Plans................................................................40
5.13 Subsidiaries...................................................................................41
5.14 Margin Regulations; Investment Company Act; Public Utility Holding Company Act.................42
5.15 Disclosure.....................................................................................42
5.16 Intellectual Property; Licenses, Etc...........................................................42
5.17 Pledge.........................................................................................43
5.18 Consummation of SCI Merger.....................................................................43
5.19 Merger Representations.........................................................................43
ARTICLE VI. AFFIRMATIVE COVENANTS................................................................................43
6.01 Financial Statements...........................................................................43
6.02 Certificates; Other Information................................................................44
6.03 Notices........................................................................................45
6.04 Payment of Obligations.........................................................................46
6.05 Preservation of Existence, Etc.................................................................46
6.06 Maintenance of Properties......................................................................46
6.07 Maintenance of Insurance.......................................................................46
6.08 Compliance with Laws...........................................................................47
6.09 Books and Records..............................................................................47
6.10 Inspection Rights..............................................................................47
6.11 Compliance with ERISA and Foreign Plans........................................................47
6.12 Use of Proceeds................................................................................48
6.13 Change in Material Subsidiaries................................................................48
6.14 Opinions of Counsel Concerning Foreign Subsidiaries; Additional Items..........................50
6.15 Further Assurances.............................................................................50
6.16 Hadco Subordinated Notes.......................................................................51
ARTICLE VII. NEGATIVE COVENANTS..................................................................................51
7.01 Liens..........................................................................................51
7.02 Investments....................................................................................54
7.03 Indebtedness...................................................................................55
7.04 Fundamental Changes............................................................................57
7.05 Dispositions...................................................................................57
7.06 Lease Obligations..............................................................................58
7.07 Restricted Payments............................................................................59
7.08 ERISA; Foreign Plans...........................................................................60
7.09 Change in Nature of Business...................................................................60
7.10 Transactions with Affiliates...................................................................60
7.11 Burdensome Agreements..........................................................................60
7.12 Use of Proceeds................................................................................60
7.13 Financial Covenants............................................................................61
7.14 SCI Merger Documents...........................................................................61
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ARTICLE VIII. EVENTS OF DEFAULT AND REMEDIES.....................................................................61
8.01 Events of Default..............................................................................61
8.02 Remedies Upon Event of Default.................................................................64
ARTICLE IX. ADMINISTRATIVE AGENT.................................................................................64
9.01 Appointment and Authorization of Administrative Agent..........................................64
9.02 Delegation of Duties...........................................................................65
9.03 Liability of Administrative Agent..............................................................65
9.04 Reliance by Administrative Agent...............................................................65
9.05 Notice of Default..............................................................................66
9.06 Credit Decision; Disclosure of Information by Administrative Agent.............................66
9.07 Indemnification of Administrative Agent........................................................67
9.08 Administrative Agent in its Individual Capacity................................................67
9.09 Successor Administrative Agent.................................................................68
9.10 Other Agents; Lead Managers....................................................................68
9.11 Collateral Matters.............................................................................69
ARTICLE X. MISCELLANEOUS.........................................................................................69
10.01 Amendments, Etc................................................................................69
10.02 Notices and Other Communications; Facsimile Copies.............................................70
10.03 No Waiver; Cumulative Remedies.................................................................71
10.04 Attorney Costs, Expenses and Taxes.............................................................71
10.05 Indemnification by the Borrower................................................................72
10.06 Marshalling; Payments Set Aside................................................................72
10.07 Successors and Assigns.........................................................................73
10.08 Confidentiality................................................................................75
10.09 Set-off........................................................................................76
10.10 Interest Rate Limitation.......................................................................76
10.11 Counterparts...................................................................................77
10.12 Integration....................................................................................77
10.13 Survival of Representations and Warranties.....................................................77
10.14 Severability...................................................................................77
10.15 Tax Forms......................................................................................77
10.16 Removal and Replacement of Lenders.............................................................78
10.17 Governing Law..................................................................................79
10.18 Waiver of Right to Trial by Jury...............................................................80
10.19 Designation as Senior Debt.....................................................................80
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SCHEDULES
2.01 Commitments and Pro Rata Shares
10.02 Eurodollar and Domestic Lending Offices, Addresses for Notices
EXHIBITS
FORM OF
A Notice
B Note
C Compliance Certificate
D Assignment and Acceptance
E Guaranty
F Stock Pledge Agreement
G Opinion of U.S. Borrower Counsel
H Joinder Agreement
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CREDIT AGREEMENT
(364-DAY)
This CREDIT AGREEMENT (364-DAY) (this "Agreement") is entered into as of
December 6, 2001, among SANMINA CORPORATION, a Delaware corporation (the
"Borrower"), each lender from time to time party hereto (collectively, the
"Lenders" and individually, a "Lender") and BANK OF AMERICA, N.A., as
Administrative Agent.
The Borrower has requested that the Lenders provide a revolving credit
facility, and the Lenders are willing to do so on the terms and conditions set
forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquisition" means any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any business or
division of a Person, (b) the acquisition of in excess of 50% of the capital
stock, partnership interests, membership interests or equity of any Person, or
otherwise causing any Person to become a Subsidiary, or (c) a merger or
consolidation or any other combination with another Person (other than a Person
that is a Subsidiary of the Borrower).
"Administrative Agent" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means the Administrative Agent's address
and, as appropriate, account as set forth on Schedule 10.02, or such other
address or account as the Administrative Agent may from time to time notify to
the Borrower and the Lenders.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power (a)
to vote 10% or more of the securities having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such Person whether through
ownership of voting securities, by contract or otherwise.
"Agent-Related Persons" means the Administrative Agent and the
Collateral Agent (including any successor agent or agents), together with their
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, the Collateral Agent and the Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
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"Aggregate Commitments" means the Commitments of the Lenders.
"Agreement" means this Credit Agreement.
"Applicable Rate" means, from time to time, the following percentages
per annum, based upon the Debt Rating existing at such time:
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Debt Rating Base
Pricing Level S&P / ▇▇▇▇▇'▇ Rate Eurodollar Rate Utilization Fee Facility Fee
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1 > BBB / Baa2 0% 0.750% 0.125% 0.125%
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2 BBB- / Baa3 0% 0.950% 0.125% 0.175%
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3 BB+ / Ba1 0% 1.050% 0.250% 0.200%
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4 BB / Ba2 0% 1.250% 0.250% 0.250%
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5 < BB- / Ba3 0.250% 1.375% 0.500% 0.375%
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As used in this definition, "Debt Rating" means, as of any date of
determination, the rating as determined by either S&P or ▇▇▇▇▇'▇ of the
Borrower's non-credit-enhanced, senior unsecured long-term debt; provided that
if a Debt Rating is issued by each of the foregoing rating agencies, then the
lower of such Debt Ratings shall apply (with Pricing Level 1 being the highest
and Pricing Level 5 being the lowest), unless there is a split in Debt Ratings
of more than one level, in which case the level that is one level higher than
the lower Debt Rating shall apply; provided, further, however, initially, the
Applicable Rate shall be determined based upon Pricing ▇▇▇▇▇ ▇ until December
31, 2001.
Each change in the Applicable Rate resulting from a publicly announced
change in the Debt Rating shall be effective during the period commencing on the
next Business Day after the date of the public announcement thereof and ending
on the date immediately preceding the effective date of the next such change.
"Arranger" means Banc of America Securities LLC, in its capacity as sole
lead arranger and sole book manager.
"Assignment and Acceptance" means an Assignment and Acceptance
substantially in the form of Exhibit D.
"Attorney Costs" means and includes all fees and disbursements of any
law firm or other external counsel and the allocated cost of internal legal
services and all disbursements of internal counsel.
"Attributable Indebtedness" means, on any date, (a) in respect of any
capital lease of any Person, the capitalized amount thereof that would appear on
a balance sheet of such Person prepared as of such date in accordance with GAAP,
(b) in respect of any Synthetic Lease Obligation, the capitalized amount of the
remaining lease payments under the relevant lease that would appear on a balance
sheet of such Person prepared as of such date in accordance with \
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GAAP if such lease were accounted for as a capital lease and (c) in respect of
any Permitted Securitization, an amount equal to (i) the outstanding principal
amount of Indebtedness incurred at such time by the Securitization Subsidiary,
or (ii) if the Securitization Subsidiary has incurred no such Indebtedness, the
unrecovered purchase price of all Permitted Receivables (or interest therein)
sold or transferred by such Securitization Subsidiary to the conduit entity or
other receivables credit provider relating to such Permitted Securitization.
"Audited Financial Statements" means the audited consolidated balance
sheet of (i) the Borrower and its Subsidiaries for the fiscal year ended
September 30, 2000, and the related consolidated statements of income,
shareholders' equity and cash flows for such fiscal year of the Borrower and
(ii) SCI and its Subsidiaries for the fiscal year ended June 30, 2001, and the
related consolidated statements of income, shareholders' equity and cash flows
for such fiscal year of SCI.
"Bank of America" means Bank of America, N.A.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." Such rate is a rate set by Bank of America based
upon various factors, including Bank of America'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 such rate announced by Bank of America 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" has the meaning specified in the introductory paragraph
hereto.
"Borrowing" means a borrowing consisting of simultaneous Loans of the
same Type and having the same Interest Period made by each of the Lenders
pursuant to Section 2.01.
"Business Day" means any day other than a Saturday, Sunday, or other day
on which commercial banks are authorized to close under the Laws of, or are in
fact closed in, the state where the Administrative Agent's Office is located
and, if such day relates to any Eurodollar Rate Loan, means any such day on
which dealings in Dollar deposits are conducted by and between banks in the
applicable offshore Dollar interbank market.
"Change of Control" means, with respect to any Person, an event or
series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding
any employee benefit plan of such person or its subsidiaries, or any
person or entity acting in its capacity as trustee, agent or other
fiduciary or administrator of any such plan), becomes the "beneficial
owner" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that such a person or group shall be deemed
to have "beneficial ownership" of all securities that such person or
group has the right to acquire (such right, "option right"),
3
whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of 35% or more of the Equity
Securities of such Person entitled to vote for members of the board of
directors or equivalent governing body on a partially-diluted basis
(i.e., taking into account all such securities that such person or group
has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing body
of such Person cease to be composed of individuals (i) who were members
of that board or equivalent governing body on the first day of such
period, (ii) whose election or nomination to that board or equivalent
governing body was approved by individuals referred to in clause (i)
above constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body or (iii) whose
election or nomination to that board or other equivalent governing body
was approved by individuals referred to in clauses (i) and (ii) above
constituting at the time of such election or nomination at least a
majority of that board or equivalent governing body.
"Closing Date" means the first date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01 (or, in the
case of Section 4.01(g) and (h), waived by the Person entitled to receive the
applicable payment).
"Code" means the Internal Revenue Code of 1986.
"Collateral" means the Pledged Shares and all other property and
interests in property and proceeds thereof now owned or hereafter acquired by
the Borrower or any of its Subsidiaries in or upon which a Lien now or hereafter
exists in favor of the Collateral Agent, the Administrative Agent or the Lenders
under any Collateral Document.
"Collateral Agent" means Bank of America in its capacity as collateral
agent under any Stock Pledge Agreement or any other Loan Document, or any
successor collateral agent.
"Collateral Documents" means, collectively, the Stock Pledge Agreements
and all other security agreements, pledge agreements and other similar
agreements between the Borrower or any Subsidiary of the Borrower and the
Administrative Agent, the Collateral Agent or any Lender now or hereafter
delivered to the Lenders or the Administrative Agent pursuant to or in
connection with the transactions contemplated hereby, and all financing
statements (or comparable documents now or hereafter filed in accordance with
the Uniform Commercial Code or comparable law) against the Borrower or any
Subsidiary of the Borrower as debtor in favor of the Administrative Agent, the
Collateral Agent or any Lender, as secured party.
"Commitment" means, as to each Lender, its obligation to make Loans to
the Borrower pursuant to Section 2.01, in an aggregate principal amount at any
one time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 2.01, as such amount may be reduced or adjusted from time to
time in accordance with this Agreement.
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
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"Consolidated Cash Interest Charges" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) all cash
interest, premium payments, fees, charges and related expenses of the Borrower
and its Subsidiaries in connection with borrowed money or in connection with the
deferred purchase price of assets, in each case to the extent treated as
interest in accordance with GAAP, and (b) the cash portion of rent expense of
the Borrower and its Subsidiaries with respect to such period under capital
leases that is treated as interest in accordance with GAAP. For purposes of
determining Consolidated Cash Interest Charges of the Borrower and its
Subsidiaries in connection with the calculation of the Interest Coverage Ratio
following the Acquisition of any Acquiree (as such term is defined in the
definition of Consolidated EBIT) otherwise permitted hereunder, if Consolidated
EBIT shall be adjusted as provided in the definition thereof upon the
Acquisition of such Acquiree for any Calculation Period (as such term is defined
in the definition of Consolidated EBIT), then Consolidated Cash Interest Charges
for such Calculation Period shall be adjusted on a historical pro forma basis to
(A) eliminate any cash interest charges described in clauses (a) and (b) above
accrued during such Calculation Period on any Indebtedness repaid in connection
with such Acquisition and (B) include any such cash interest charges accrued
during such Calculation Period on any Indebtedness incurred, acquired or assumed
in connection with such Acquisition. Any certificate of a Responsible Officer
delivered to the Administrative Agent and the Lenders setting forth adjustments
to Consolidated EBIT for such Calculation Period shall also set forth the
adjustments to Consolidated Cash Interest Charges in connection therewith.
"Consolidated EBIT" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
Consolidated Net Income, (d) cash and noncash charges for the fiscal quarters
ending March 31, 2001 (not exceeding $144,000,000 for such quarter), June 30,
2001 (not exceeding $50,000,000 for such quarter) and September 30, 2001 (not
exceeding $366,000,000 for such quarter), (e) nonrecurring charges taken by the
Borrower in any fiscal quarter after September 30, 2001 in connection with the
SCI Merger in an aggregate amount for all such quarters not to exceed
$195,000,000, (f) accounting prescribed pre-merger nonrecurring restructuring
charges taken against income by SCI during the period beginning on October 1,
2001 and ending on the Closing Date in connection with the SCI Merger in an
aggregate amount for such period not to exceed $100,000,000, (g) accounting
prescribed pre-merger nonrecurring purchase price adjustment charges taken
against income by SCI during the period beginning on October 1, 2001 and ending
on the Closing Date in connection with the SCI Merger in an aggregate amount for
such period not to exceed $100,000,000 and (h) nonrecurring noncash charges
(other than in connection with the SCI Merger) for any fiscal quarter after
December 31, 2001. For purposes of determining Consolidated EBIT of the Borrower
and its Subsidiaries in connection with the calculation of the Interest Coverage
Ratio following the Acquisition of any Person (an "Acquiree") otherwise
permitted hereunder, Consolidated EBIT shall, at the election of the Borrower,
be adjusted upon the Acquisition of such Acquiree (i) to include the historical
financial results of such Acquiree for the four fiscal quarter period
("Calculation Period") for which Consolidated EBIT is calculated hereunder,
until such time as the first day of any Calculation Period falls on or after the
date on which the Acquisition of such Acquiree is consummated; and (ii) to
exclude any specific, identifiable expense items which are eliminated as a
result of the Acquisition of such Acquiree at the closing thereof; provided that
(1) supporting
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financial information relating thereto and satisfactory to the Required Lenders
shall have been received by the Administrative Agent and the Lenders and (2) the
Required Lenders shall have approved of such adjustment. Notwithstanding the
immediately preceding sentence, if audited financial statements accompanied by
an unqualified opinion of an independent auditor of recognized national standing
are delivered to the Administrative Agent and the Lenders in respect of such
Acquiree for the then most recent fiscal year of such Person, then the approval
of the Required Lenders shall not be required for such adjustments to
Consolidated EBIT. Any such adjustment may only be made after the Administrative
Agent and the Lenders shall have received a certificate of a Responsible Officer
clearly setting forth such adjustments.
"Consolidated Funded Indebtedness" means, as of any date of
determination, the consolidated total Indebtedness of the Borrower and its
Subsidiaries minus any portion thereof consisting of Indebtedness described in
clauses (b) or (c) of the definition thereof.
"Consolidated Interest Charges" means, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the sum of Consolidated Cash
Interest Charges for such period and Consolidated Non-Cash Interest Charges for
such period.
"Consolidated Net Income" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries from continuing operations for that period, excluding (i) gains or
losses from Dispositions of assets and (ii) other extraordinary items, in each
case for that period.
"Consolidated Non-Cash Interest Charges" means, for any period, for the
Borrower and its Subsidiaries on a consolidated basis, the sum of (a) all
non-cash interest, premium payments, fees, charges and related expenses of the
Borrower and its Subsidiaries in connection with borrowed money or in connection
with the deferred purchase price of assets, in each case to the extent treated
as interest in accordance with GAAP, and (b) the non-cash portion of rent
expense of the Borrower and its Subsidiaries with respect to such period under
capital leases that is treated as interest in accordance with GAAP.
"Consolidated Shareholders' Equity" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
shareholders' equity as of that date determined in accordance with GAAP.
"Consolidated Tangible Net Worth" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
Consolidated Shareholders' Equity of the Borrower and its Subsidiaries on that
date minus the Intangible Assets of the Borrower and its Subsidiaries on that
date.
"Consolidated Total Capitalization" means, as of any date of
determination, Consolidated Funded Indebtedness plus Consolidated Shareholders'
Equity.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
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"Convertible Notes" means notes that are convertible into capital stock
of the Borrower or any of its Subsidiaries at the option of the holders thereof.
"Debt Rating" has the meaning set forth in the definition of "Applicable
Rate."
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to (a) the Base Rate plus
(b) the Applicable Rate, if any, applicable to Base Rate Loans plus (c) 2% per
annum; provided, however, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"Disclosure Letter" means the disclosure letter of the Borrower to the
Administrative Agent and the Lenders dated as of the Closing Date.
"Disposition" or "Dispose" means the sale, transfer, license or other
disposition (including any sale and leaseback transaction) of any property by
any Person, including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" means lawful money of the United States.
"Domestic Subsidiary" means any Subsidiary of the Borrower other than a
Foreign Subsidiary.
"Eligible Assignee" has the meaning specified in Section 10.07(h).
"Eligible Material Subsidiary" shall mean, at any time, any Material
Subsidiary that is not then an Ineligible Material Subsidiary.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, ordinances, rules, regulations, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions or policies, including, the Comprehensive
Environmental Response, Compensation and Liability Act, the Superfund Amendments
and Reauthorization Act, the Resource Conservation and Recovery Act, the Toxic
Substances Control Act, the Clean Air Act and the Clean Water Act, relating to
the environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial, toxic or
hazardous substances or wastes into the environment (including, ambient air,
surface water, ground water or land) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of
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pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"Equity Securities" means, as to any Person, the capital stock of any
class or classes or other equity, partnership or other ownership interests
(however designated and including general partnership interests in a
partnership).
"ERISA" means the Employee Retirement Income Security Act of 1974 and
any regulations issued pursuant thereto.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with the Borrower within the meaning of
Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
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 Borrower 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 that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower 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 Sections 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.
"Eurodollar Rate" means for any Interest Period with respect to any
Eurodollar Rate Loan:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in
Dollars (for delivery on the first day of such Interest Period) with a
term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does
not appear on such page or service or such page or service shall cease
to be available, the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate on such other page or other
service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of
8
approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period, or
(c) if the rates referenced in the preceding subsections (a) and
(b) are not available, the rate per annum determined by the
Administrative Agent as the rate of interest (rounded upwards to the
next 1/100th of 1%) at which deposits in Dollars for delivery on the
first day of such Interest Period in same day funds in the approximate
amount of the Eurodollar Rate Loan being made, continued or converted by
Bank of America and with a term equivalent to such Interest Period would
be offered by Bank of America's London branch or Affiliate to major
banks in the offshore interbank market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of
such Interest Period.
"Eurodollar Rate Loan" means a Loan that bears interest at a rate based
on the Eurodollar Rate.
"Event of Default" has the meaning specified in Section 8.01.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards to the next 1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers on such day, as published by the Federal
Reserve Bank on the Business Day next succeeding such day; provided that (a) if
such day is not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by the Administrative Agent.
"Fee Letter" has the meaning specified in Section 2.07(c).
"First Tier Foreign Subsidiary" means, at any date of determination,
each Foreign Subsidiary in which any one or more of the Borrower or its Domestic
Subsidiaries owns directly more than 50%, in the aggregate, of the Equity
Securities of such Subsidiary.
"Foreign Lender" has the meaning specified in Section 10.15.
"Foreign Non-Significant Subsidiary" means a Foreign Subsidiary with
assets with a book value equal to $5,000,000 or less.
"Foreign Plan" shall mean any employee benefit plan maintained by the
Borrower or any of its Subsidiaries which is mandated or governed by any Laws of
any Governmental Authority other than the United States.
"Foreign Subsidiary" shall mean any Subsidiary of the Borrower that is
organized under the laws of a jurisdiction other than the United States or a
state thereof.
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
9
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or capital
ownership or otherwise, by any of the foregoing.
"Guarantors" means, collectively, each of the Subsidiaries of the
Borrower (other than any Securitization Subsidiary) executing the Guaranty as of
the Closing Date or thereafter (as provided in Section 6.13).
"Guaranty" means the Guaranty made by the Guarantors in favor of the
Administrative Agent and the Lenders, substantially in the form of Exhibit E.
"Guaranty Obligation" means, as to any Person, any (a) any obligation,
contingent or otherwise, of such Person guarantying or having the economic
effect of guarantying any Indebtedness or other obligation payable or
performable by another Person (the "primary obligor") in any manner, whether
directly or indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation, (ii) to purchase or lease
property, securities or services for the purpose of assuring the obligee in
respect of such Indebtedness or other obligation of the payment or performance
of such Indebtedness or other obligation, (iii) to maintain working capital,
equity capital or any other financial statement condition or liquidity of the
primary obligor so as to enable the primary obligor to pay such Indebtedness or
other obligation, or (iv) entered into for the purpose of assuring in any other
manner the obligees in respect of such Indebtedness or other obligation of the
payment or performance thereof or to protect such obligees against loss in
respect thereof (in whole or in part), or (b) any Lien on any assets of such
Person securing any Indebtedness or other obligation of any other Person,
whether or not such Indebtedness or other obligation is assumed by such Person;
provided, however, that the term "Guaranty Obligation" shall not include
endorsements of instruments for deposit or collection in the ordinary course of
business. The amount of any Guaranty Obligation shall be deemed to be an amount
equal to the stated or determinable amount of the related primary obligation, or
portion thereof, in respect of which such Guaranty Obligation is made or, if not
stated or determinable, the maximum reasonably anticipated liability in respect
thereof as determined by the guarantying Person in good faith and in the case of
contingent obligations in respect of Swap Contracts, shall be equal to the Swap
Termination Value.
"Hadco Indenture" has the meaning specified in Section 10.19.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976.
10
"Indebtedness" means, without duplication, as to any Person at a
particular time, all of the following, whether or not included as indebtedness
or liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), banker's
acceptances, bank guaranties, surety bonds and similar instruments;
(c) net obligations under any Swap Contract in an amount equal
to (i) if such Swap Contract has been closed out, the termination value
thereof, or (ii) if such Swap Contract has not been closed out, the
▇▇▇▇-to-market value thereof determined on the basis of readily
available quotations provided by any recognized dealer in such Swap
Contract;
(d) all obligations of such Person to pay the deferred purchase
price of property or services and indebtedness (excluding prepaid
interest thereon and excluding royalty payables and trade payables
entered into in the ordinary course of business) secured by a Lien on
property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements),
whether or not such indebtedness shall have been assumed by such Person
or is limited in recourse;
(e) Attributable Indebtedness in respect of capital leases,
Synthetic Lease Obligations and Permitted Securitizations; and
(f) all Guaranty Obligations of such Person in respect of any of
the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person (subject only to customary recourse exceptions
acceptable to the Required Lenders). The amount of any capital lease, Synthetic
Lease Obligation or Permitted Securitization as of any date shall be deemed to
be the amount of Attributable Indebtedness in respect thereof as of such date.
"Indemnified Liabilities" has the meaning set forth in Section 10.05.
"Indemnitees" has the meaning set forth in Section 10.05.
"Ineligible Material Subsidiary" shall mean, at any time, any Material
Subsidiary (a) that is then prohibited by any applicable Law from acting as a
Guarantor under the Guaranty or (b) that then would incur, or would cause the
Borrower to incur, a significant increase in its tax liabilities or similar
liabilities or obligations as a result of acting as a Guarantor under the
Guaranty.
11
"Intangible Assets" means assets that are considered to be intangible
assets under GAAP, 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 Coverage Ratio" means, as of any date of determination, the
ratio of Consolidated EBIT for the period of the four consecutive fiscal
quarters ending on such date to Consolidated Cash Interest Charges for such
period.
"Interest Payment Date" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan; provided,
however, that if any Interest Period for a Eurodollar Rate Loan exceeds three
months, the respective dates that fall every three months after the beginning of
such Interest Period shall also be Interest Payment Dates; and (b) as to any
Base Rate Loan, the last Business Day of each March, June, September and
December and the Maturity Date.
"Interest Period" means as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or (in the case of
any Eurodollar Rate Loan) converted to or continued as a Eurodollar Rate Loan
and ending on the date one, two, three or six months thereafter, as selected by
the Borrower in its Notice; provided that:
(i) any Interest Period that would otherwise end on a day that
is not a Business Day shall be extended to the next succeeding Business
Day unless, in the case of a Eurodollar Rate Loan, such Business Day
falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period pertaining to a Eurodollar Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last Business
Day of the calendar month at the end of such Interest Period; and
(iii) no Interest Period shall extend beyond the scheduled
Maturity Date.
"Investment" means, as to any Person, any direct or indirect acquisition
or investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, guaranty or assumption of debt of, or
purchase or other acquisition of any other debt or equity participation or
interest in, another Person, including any partnership or joint venture interest
in such other Person, or (c) the purchase or other acquisition (in one
transaction or a series of transactions) of assets of another Person that
constitute a business unit. For purposes of covenant compliance, the amount of
any Investment shall be the amount actually invested, without adjustment for
subsequent increases or decreases in the value of such Investment.
"IP Rights" has the meaning set forth in Section 5.16.
12
"IRS" means the United States Internal Revenue Service.
"Joinder Agreement" means a Joinder Agreement in substantially the form
of Exhibit H.
"Laws" means, collectively, all international, foreign, Federal, state
and local statutes, treaties, rules, guidelines, regulations, ordinances, codes
and administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" has the meaning specified in the introductory paragraph hereto.
"Lending Office" means, as to any Lender, the office or offices of such
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify to the Borrower and the Administrative
Agent.
"Leverage Ratio" means, as of any date of determination, for the
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Funded Indebtedness to (b) Consolidated Total Capitalization.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge, or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing, and the filing of any financing statement under the
Uniform Commercial Code or comparable or similar filing under the Laws of any
jurisdiction), including the interest of a purchaser of accounts receivable.
"Loan" has the meaning specified in Section 2.01.
"Loan Documents" means this Agreement, the Disclosure Letter, each Note,
the Fee Letter, each Notice, each Compliance Certificate, the Collateral
Documents, the Guaranty, each Joinder Agreement and each other document,
instrument or agreement from time to time executed by the Borrower or any of its
Subsidiaries or any Responsible Officer thereof and delivered in connection with
this Agreement or any other Loan Document.
"Loan Parties" means, collectively, the Borrower, each Guarantor and
each Pledgor.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, properties, liabilities
(actual or contingent), condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (b) a material impairment of the
ability of any Loan Party to perform its obligations under any Loan Document to
which it is a party; or (c) a material adverse effect upon (i) the legality,
validity, binding effect or enforceability against any Loan Party of any Loan
Document to which it is a party or (ii) the perfection or priority of any Lien
granted under any of the Collateral Documents.
13
"Material Subsidiary" shall mean, at any time during any fiscal year of
the Borrower, any Subsidiary of the Borrower that (i) held assets, excluding
Intangible Assets, on the last day of the immediately preceding fiscal year with
a book value equal to or greater than $150,000,000 as set forth or reflected in
the audited financial statements provided pursuant to Section 6.01(a) or (ii)
with respect to any Subsidiary added or created during such year, held assets,
excluding Intangible Assets, on the last day of the immediately preceding
quarter with a book value equal to or greater than $150,000,000 as set forth in
financial statements provided and reasonably satisfactory to the Administrative
Agent and the Required Lenders.
"Maturity Date" means (a) December 4, 2002 or (b) such earlier date upon
which the Aggregate Commitments may be terminated in accordance with the terms
hereof.
"Merger Sub" means Sun Acquisition Subsidiary, Inc., a Delaware
corporation.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means any employee benefit plan of the type
described in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA
Affiliate makes or is obligated to make contributions, or during the preceding
three calendar years, has made or been obligated to make contributions.
"Multi-Year Credit Agreement" means that certain Credit Agreement
(Multi-Year) dated as of the date hereof among the Borrower and certain
Subsidiaries of the Borrower, the lenders from time to time party thereto, Bank
of America, as letter of credit issuer, and Bank of America, as administrative
agent.
"Multi-Year Credit Agreement Loan Documents" means the "Loan Documents"
as defined in the Multi-Year Credit Agreement
"Net Disposition Proceeds" means, in respect of any Disposition of any
property, net proceeds of such Disposition, calculated exclusive of reasonable
out-of-pocket expenses and taxes actually paid in connection with such
Disposition and exclusive of the amount of any Indebtedness secured solely or
principally by such property and actually repaid.
"Net Issuance Proceeds" means, as to any issuance or other incurrence of
debt or any issuance of equity or capital stock by any Person, cash proceeds and
other proceeds (of property or other tangible assets) received or receivable by
such Person in connection therewith, net of out-of-pocket costs and expenses
paid or incurred in connection therewith in favor of any Person not an Affiliate
of such Person.
"Non-Material Subsidiary" shall mean any Subsidiary of the Borrower
which is not a Material Subsidiary.
"Note" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of Exhibit B.
14
"Notice" means a notice of (a) a Borrowing, (b) a conversion of Loans
from one Type to the other, or (c) a continuation of Loans as the same Type,
pursuant to Section 2.02(a), which, if in writing, shall be substantially in the
form of Exhibit A.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document, whether direct or indirect (including those acquired by assumption),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding.
"Organization Documents" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutional documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the articles of formation and
operating agreement; and (c) with respect to any partnership, joint venture,
trust or other form of business entity, the partnership, joint venture or other
applicable agreement of formation and any agreement, instrument, filing or
notice with respect thereto filed in connection with its formation with the
applicable Governmental Authority in the jurisdiction of its formation, in each
case as amended from time to time.
"Outstanding Amount" means with respect to Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Loans occurring on such date.
"Participant" has the meaning specified in Section 10.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"Pension Plan" means any "employee pension benefit plan" (as such term
is defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, 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 plan years.
"Permitted Acquisition" means any Acquisition that conforms to the
following requirements: (i) the assets, Person, division or line of business to
be acquired is in a substantially similar or ancillary or related line of
business as the Borrower, (ii) all transactions related to such Acquisition
shall be consummated in accordance in all material respects with applicable Law,
(iii) at the time of the first public announcement of an offer relating thereto,
such Acquisition has been approved by the board of directors or equivalent
governing body of the acquiree, (iv) the board of directors or equivalent
governing body of the acquiree has not at any time notified the Borrower that it
opposes such action or, if it had done so, such opposition has been withdrawn,
(v) immediately after giving effect to such Acquisition: (A) no Default or Event
of Default shall have occurred and be continuing or would result therefrom, and
(B) all actions required to be taken with respect to any such acquired or newly
formed Subsidiary under Section 6.13 shall have been or will be taken in
accordance therewith, and (vi) in the case of any
15
Significant Acquisition, the Administrative Agent and the Lenders shall have
received no less than ten Business Days prior to the consummation of such
Significant Acquisition, (A) financial information regarding the assets, Person,
division or line of business to be acquired, including the most recent audited
financial statements, if available, but in any case the most recently prepared
balance sheet, statement of income and statement of cash flows for the assets,
Person, division or line of business to be acquired and pro forma projected
financial statements showing the effect of the Acquisition of the assets,
Person, division or line of business to be acquired on the Borrower, including a
balance sheet for Borrower and its Subsidiaries as of the time of the
Acquisition and projected statements of income and cash flows for Borrower and
its Subsidiaries through at least the Maturity Date, and (B) a completed
Compliance Certificate prepared on a pro forma basis demonstrating the
Borrower's pro forma compliance with the financial covenants set forth in
Section 7.13, measured as of the last day of the fiscal quarter then most
recently ended, after giving effect to such Acquisition.
"Permitted Liens" has the meaning specified in Section 7.01.
"Permitted Receivables" means accounts receivable (including notes,
chattel paper, accounts, instruments and general intangibles consisting of
rights to payment) generated by the Borrower or any of its Subsidiaries (each,
an "originator") in the ordinary course of business, together with any
guarantees, insurance, letters of credit, collateral, service contracts and
other agreements associated with any account receivable, the interest of the
originator in the inventory and goods, including returned or repossessed
inventory or goods, if any, the sale, financing or lease of which gave rise to
an account receivable, the interest of the Securitization Subsidiary in the
agreement with the originator pursuant to which such Securitization Subsidiary
purchased such accounts receivable, and other ancillary rights of the originator
arising in connection with the transaction giving rise to such accounts
receivable and all business records relating thereto.
"Permitted Securitization" means (a) transfers constituting sales under
GAAP and accompanied by the delivery of a customary true-sale opinion given by
independent counsel, to a Securitization Subsidiary of Permitted Receivables by
the applicable originator; and (b) if applicable, the incurrence by the
Securitization Subsidiary of Attributable Indebtedness to a conduit entity or
other receivables credit provider secured by a Lien on any or all of the assets
of such Securitization Subsidiary.
"Person" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority or other legal entity.
"Plan" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or any ERISA Affiliate.
"Pledged Shares" means the "Pledged Shares" as defined in any Stock
Pledge Agreement.
"Pledgors" means, collectively, the Borrower and each of the
Subsidiaries of the Borrower executing a Stock Pledge Agreement with respect to
any Equity Securities of the First Tier Foreign Subsidiaries or as otherwise
provided in Section 6.13.
16
"Pro Rata Share" means, with respect to each Lender, the percentage
(carried out to the ninth decimal place) of the Aggregate Commitments set forth
opposite the name of such Lender on Schedule 2.01, as such share may be adjusted
as contemplated herein.
"Register" has the meaning set forth in Section 10.07(c).
"Reportable Event" means any of the events set forth in Section 4043(c)
of ERISA, other than events for which the 30 day notice period has been waived.
"Required Lenders" means, as of any date of determination, Lenders whose
Voting Percentages aggregate more than 50%.
"Responsible Officer" means the chief executive officer, president,
chief financial officer or treasurer (or any other officer having substantially
the same authority and responsibility) of a Loan Party. Any document delivered
hereunder that is signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary corporate,
partnership and/or other action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
such Loan Party.
"Restricted Payment" means any dividend or other distribution (whether
in cash, securities or other property) with respect to any capital stock of the
Borrower or any Subsidiary, or any payment with respect to such capital stock
(whether in cash, securities or other property), including any sinking fund or
similar deposit on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or of any option, warrant
or other right to acquire any such capital stock; provided that no Restricted
Payment shall be deemed to occur upon the "cashless exercise" of any options or
warrants of the Borrower or any Subsidiary by the holder thereof if such
exercise does not result in the deemed repayment, forgiveness or other
cancellation of Indebtedness owing to the Borrower or any of its Subsidiaries;
provided further, that no Restricted Payment shall be deemed to occur with
respect to (i) the payment of principal of, interest on or premium in respect of
Indebtedness evidenced by Convertible Notes in accordance with the terms of such
Convertible Notes (including in connection with the redemption or repurchase of
such notes) at any time prior to the conversion of the same into capital stock
of the Borrower or its Subsidiaries, (ii) the delivery of capital stock upon
conversion of Convertible Notes in accordance with the terms thereof or (iii)
any payment of cash in lieu of the issuance of fractional shares to holders of
such notes upon conversion.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and any successor thereto.
"SCI" means SCI Systems, Inc., a Delaware corporation, and subsequent to
the consummation of the SCI Merger, the corporation surviving such merger.
"SCI Adjustable Rate Senior Notes" means the Adjustable Rate Senior
Notes due 2006 issued by SCI pursuant to the Note Purchase Agreement dated as of
June 28, 1996.
"SCI Existing 5-Year Credit Agreement" means the Credit Agreement dated
as of June 30, 2000 among SCI, the financial institutions party thereto and
Citicorp USA, as administrative agent.
17
"SCI Existing Indebtedness" means the Indebtedness described in Section
1.01 of the Disclosure Letter under the caption "SCI Existing Indebtedness".
"SCI Existing 364-Day Credit Facility" means the Credit Agreement dated
as of June 30, 2000 among SCI, the financial institutions party thereto and
Citicorp USA, as administrative agent.
"SCI Existing Securitization Facility" means the Second Amended and
Restated Receivables Purchase Agreement, dated as of June 14, 2000, among SCI
Funding, Inc., SCI Technology, Inc., SCI and Bank of America, N.A. as
administrative agent.
"SCI Merger" means the merger of SCI with Merger Sub, undertaken
pursuant to the SCI Merger Agreement.
"SCI Merger Agreement" means the Amended and Restated Agreement and Plan
of Reorganization dated as of July 13, 2001, among the Borrower, Merger Sub and
SCI, as amended by the Amendment to Merger Agreement, dated September 14, 2001.
"SCI Merger Documents" means, collectively, the SCI Merger S-4 and each
of the documents and agreements set forth in Section 1.01 of the Disclosure
Letter under the caption
"SCI Merger Documents", each in the form executed by the parties thereto
and delivered to the Administrative Agent and the Lenders prior to the date
hereof.
"SCI Merger S-4" means that Registration Statement on Form S-4 filed by
the Borrower with the SEC on August 10, 2001, as amended by amendments thereto
filed on September 26, 2001, November 1, 2001 and November 2, 2001,
respectively, together with all exhibits and attachments thereto.
"SCI Senior Notes" means the Senior Notes, Series A, due March 1, 2006
and Senior Notes, Series B, due March 1, 2006, in each case issued by SCI
pursuant to the Note Purchase Agreement dated March 12, 2001.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"Securitization Subsidiary" means a Wholly-Owned Subsidiary of the
Borrower created solely for purposes of effectuating a Permitted Securitization,
the activities and assets of which are limited solely to such purpose and
assets, and the Organization Documents of which contain customary bankruptcy --
remote provisions.
"Significant Acquisition" means any Acquisition by the Borrower or any
Subsidiary of the Borrower in respect of which the consideration therefor shall
equal or exceed $500,000,000 in the aggregate.
"Spot Rate" for a currency means the rate quoted by Bank of America as
the spot rate for the purchase by Bank of America of such currency with another
currency through its principal foreign exchange trading office at approximately
8:00 a.m., San Francisco time, on the date two Business Days prior to the date
as of which the foreign exchange computation is made.
18
"Stock Pledge Agreement" means a Stock Pledge Agreement made between the
Pledgor party thereto and the Collateral Agent, substantially in the form of
Exhibit F.
"Subsidiary" of a Person means a corporation, partnership, joint
venture, limited liability company or other business entity (i) of which a
majority of the shares of securities or other interests having ordinary voting
power for the election of directors or other governing body (other than
securities or interests having such power only by reason of the happening of a
contingency) are at the time beneficially owned by such Person or (ii) the
accounts of which are consolidated with such Person's on such Person's
consolidated financial statements. Unless otherwise specified, all references
herein to a "Subsidiary" or to "Subsidiaries" shall refer to a Subsidiary or
Subsidiaries of the Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index
swaps or options, bond or bond price or bond index swaps or options or forward
bond or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"), including
any such obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Lender).
"Synthetic Lease Obligation" means the monetary obligation of a Person
under (a) a so-called synthetic, off-balance sheet or tax retention lease, or
(b) an agreement for the use or possession of property creating obligations that
do not appear on the balance sheet of such Person but which, upon the insolvency
or bankruptcy of such Person, would be characterized as the indebtedness of such
Person (without regard to accounting treatment).
"Threshold Amount" means $10,000,000.
"Type" means, with respect to a Loan, its character as a Base Rate Loan
or a Eurodollar Rate Loan.
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"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." each means the United States of America.
"Voting Percentage" means, as to any Lender, (a) at any time when the
Aggregate Commitments are in effect, such Lender's Pro Rata Share and (b) at any
time after the termination of the Aggregate Commitments, the percentage (carried
out to the ninth decimal place) which the Outstanding Amount of such Lender's
Loans, then comprises of (ii) the Outstanding Amount of all Loans; provided,
however, that if any Lender has failed to fund any portion of the Loans required
to be funded by it hereunder, such Lender's Voting Percentage shall be deemed to
be zero, and the respective Pro Rata Shares and Voting Percentages of the other
Lenders shall be recomputed for purposes of this definition and the definition
of "Required Lenders" without regard to such Lender's Commitment or the
outstanding amount of its Loans.
"Wholly-Owned Subsidiary" means any Subsidiary of the Borrower in which
(other than directors' qualifying shares required by Law) 100% of the Equity
Securities at the time as of which any determination is being made is owned,
beneficially and of record, by the Borrower, or by one or more of the other
Wholly-Owned Subsidiaries, or both.
1.02 OTHER INTERPRETIVE PROVISIONS. With reference to this Agreement and
any other Loan Document, unless otherwise specified herein or in such other Loan
Document:
(a) The meanings of defined terms are equally applicable to the singular
and plural forms of the defined terms.
(b) (i) (i) The words "herein," "hereto" and "hereunder" and words
of similar import when used in any Loan Document shall refer to such
Loan Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such references appear.
(iii) The term "including" is by way of example and not
limitation.
(iv) The term "documents" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in electronic
or physical form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are included
for convenience of reference only and shall not affect the interpretation of
this Agreement or any other Loan Document.
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1.03 ACCOUNTING TERMS.
(a) All accounting terms not specifically or completely defined herein
shall be construed in conformity with, and all financial data required to be
submitted pursuant to this Agreement shall be prepared in conformity with, GAAP
applied on a consistent basis, as in effect from time to time, applied in a
manner consistent with that used in preparing the Audited Financial Statements,
except as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); provided that, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP prior to such change therein and (ii) the Borrower shall
provide to the Administrative Agent and the Lenders financial statements and
other documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of such ratio or
requirement made before and after giving effect to such change in GAAP.
1.04 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.05 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall be deemed to include all subsequent
amendments, restatements, extensions, supplements and other modifications
thereto, but only to the extent that such amendments, restatements, extensions,
supplements and other modifications are not prohibited by any Loan Document; and
(b) references to any Law shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting such Law.
1.06 CURRENCY EQUIVALENTS. Except for purposes of financial statements
delivered by the Borrower hereunder or calculating financial covenants hereunder
or except as otherwise provided herein, the applicable amount of any foreign
currency for purposes of the Loan Documents shall be the equivalent amount in
Dollars as determined by the Administrative Agent at the relevant time on the
basis of the Spot Rate for the purchase of Dollars with such other currency.
ARTICLE II.
THE COMMITMENTS AND BORROWINGS
2.01 LOANS. Subject to the terms and conditions set forth herein, each
Lender severally agrees to make loans (each such loan, a "Loan") to the Borrower
from time to time on any Business Day during the period from the Closing Date to
the Maturity Date, in an aggregate amount not to exceed at any time outstanding
the amount of such Lender's Commitment;
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provided, however, that after giving effect to any Borrowing, (i) the aggregate
Outstanding Amount of all Loans shall not exceed the Aggregate Commitments, and
(ii) the aggregate Outstanding Amount of the Loans of any Lender shall not
exceed such Lender's Commitment. Within the limits of each Lender's Commitment,
and subject to the other terms and conditions hereof, the Borrower may borrow
under this Section 2.01, prepay under Section 2.03, and reborrow under this
Section 2.01. Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF LOANS.
(a) Each Borrowing, each conversion of Loans from one Type to the other,
and each continuation of Loans as the same Type shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 8:00 a.m., San Francisco time, (i) three Business Days prior to the
requested date of any Borrowing of, conversion to or continuation of Eurodollar
Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, and
(ii) on the requested date of any Borrowing of Base Rate Loans. Each such
telephonic notice must be confirmed promptly by delivery to the Administrative
Agent of a written Notice, appropriately completed and signed by a Responsible
Officer of the Borrower. Each Borrowing of, conversion to or continuation of
Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole
multiple of $1,000,000 in excess thereof. Each Borrowing of or conversion to
Base Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple
of $1,000,000 in excess thereof. Each Notice (whether telephonic or written)
shall specify (i) whether the Borrower is requesting a Borrowing, a conversion
of Loans from one Type to the other, or a continuation of Loans as the same
Type, (ii) the requested date of the Borrowing, conversion or continuation, as
the case may be (which shall be a Business Day), (iii) the principal amount of
Loans to be borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if applicable,
the duration of the Interest Period with respect thereto. If the Borrower fails
to specify a Type of Loan in a Notice or if the Borrower fails to give a timely
notice requesting a conversion or continuation, then the applicable Loans shall
be made or continued as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Rate
Loans. If the Borrower requests a Borrowing of, conversion to, or continuation
of Eurodollar Rate Loans in any such Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of one month.
(b) Following receipt of a Notice, the Administrative Agent shall
promptly notify each Lender of its Pro Rata Share of the applicable Loans, and
if no timely notice of a conversion or continuation is provided by the Borrower,
the Administrative Agent shall notify each Lender of the details of any
automatic conversion to Base Rate Loans described in the preceding subsection.
In the case of a Borrowing, each Lender shall make the amount of its Loan
available to the Administrative Agent in immediately available funds at the
Administrative Agent's Office not later than 11:00 a.m., San Francisco time, on
the Business Day specified in the applicable Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.02 (and, if such Borrowing is the
initial Borrowing, Section 4.01), the Administrative Agent shall make all funds
so received available to the Borrower in like funds as received by the
Administrative Agent either by (i) crediting the account of the Borrower on the
books of Bank of
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America with the amount of such funds or (ii) wire transfer of such funds, in
each case in accordance with instructions provided to the Administrative Agent
by the Borrower.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of the Interest Period for such
Eurodollar Rate Loan. During the existence of a Default or Event of Default, no
Loans may be requested as, converted to or continued as Eurodollar Rate Loans
without the consent of the Required Lenders, and the Required Lenders may demand
that any or all of the then outstanding Eurodollar Rate Loans be converted
immediately to Base Rate Loans.
(d) The Administrative Agent shall promptly notify the Borrower and the
Lenders of the interest rate applicable to any Eurodollar Rate Loan upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
The Administrative Agent shall notify the Borrower and the Lenders of any change
in Bank of America's prime rate used in determining the Base Rate promptly
following the public announcement of such change.
(e) After giving effect to all Borrowings, all conversions of Loans from
one Type to the other, and all continuations of Loans as the same Type, there
shall not be more than six Interest Periods in effect with respect to Loans.
2.03 PREPAYMENTS.
(a) The Borrower may, upon notice from the Borrower to the
Administrative Agent, at any time or from time to time voluntarily prepay Loans
in whole or in part without premium or penalty; provided that (i) such notice
must be received by the Administrative Agent not later than 8:00 a.m., San
Francisco time, (A) three Business Days prior to any date of prepayment of
Eurodollar Rate Loans, and (B) on the date of prepayment of Base Rate Loans; and
(ii) any prepayment of Eurodollar Rate Loans or of Base Rate Loans shall be in a
minimum principal amount of $5,000,000 or a whole multiple of $1,000,000 in
excess thereof. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of such
Lender's Pro Rata Share of such prepayment. If such notice is given by the
Borrower, the Borrower shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified therein.
Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued
interest thereon, together with any additional amounts required pursuant to
Section 3.05. Each such prepayment shall be applied to the Loans of the Lenders
in accordance with their respective Pro Rata Shares.
(b) If for any reason the Outstanding Amount of all Loans at any time
exceeds the Aggregate Commitments then in effect, the Borrower shall immediately
prepay Loans in an aggregate amount equal to such excess.
2.04 REDUCTION OR TERMINATION OF COMMITMENTS. The Borrower may, upon
notice by the Borrower to the Administrative Agent, terminate the Aggregate
Commitments, or permanently reduce the Aggregate Commitments to an amount not
less than the then Outstanding Amount of all Loans; provided that (i) any such
notice shall be received by the
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Administrative Agent not later than 8:00 a.m., San Francisco time, five Business
Days prior to the date of termination or reduction, and (ii) any such partial
reduction shall be in an aggregate amount of $10,000,000 or any whole multiple
of $1,000,000 in excess thereof. The Administrative Agent will promptly notify
the Lenders of any such notice of reduction or termination of the Aggregate
Commitments. Once reduced in accordance with this Section, the Commitments may
not be increased. Any reduction of the Aggregate Commitments shall be applied to
the Commitment of each Lender according to its Pro Rata Share. All facility and
utilization fees accrued until the effective date of any termination of the
Aggregate Commitments shall be paid on the effective date of such termination.
2.05 REPAYMENT OF LOANS. The Borrower shall repay to the Lenders on the
Maturity Date the aggregate principal amount of Loans outstanding on such date.
2.06 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period plus the Applicable Rate; and (ii) each Base Rate
Loan shall bear interest on the outstanding principal amount thereof from the
applicable borrowing date at a rate per annum equal to the Base Rate plus the
Applicable Rate.
(b) While any Event of Default exists or after acceleration, the
Borrower shall pay interest on the principal amount of all outstanding
Obligations at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Law. Accrued and
unpaid interest on past due amounts (including interest on past due interest)
shall be due and payable upon demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
2.07 FEES.
(a) Facility Fee. The Borrower shall pay to the Administrative Agent for
the account of each Lender in accordance with its Pro Rata Share, a facility fee
equal to the Applicable Rate times the actual daily amount of the Aggregate
Commitments, regardless of usage. The facility fee shall accrue at all times
from the Closing Date until the Maturity Date and shall be due and payable
quarterly in arrears on the last Business Day of each March, June, September and
December, commencing with the first such date to occur after the Closing Date,
and on the Maturity Date. The facility fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Rate during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable Rate
separately for each period during such quarter that such Applicable Rate was in
effect. The facility fee shall accrue at all times, including at any time during
which one or more of the conditions in Article IV is not met.
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(b) Utilization Fee. The Borrower shall pay to the Administrative Agent
for the account of each Lender in accordance with its Pro Rata Share, a
utilization fee equal to the Applicable Rate times the actual daily aggregate
Outstanding Amount of Loans and on each day that such aggregate Outstanding
Amount exceeds 33% of the Aggregate Commitments. The utilization fee shall be
due and payable quarterly in arrears on the last Business Day of each March,
June, September and December, commencing with the first such date to occur after
the Closing Date, and on the Maturity Date. The utilization fee shall be
calculated quarterly in arrears, and if there is any change in the Applicable
Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect. The utilization fee shall accrue at all
times, including at any time during which one or more of the conditions in
Article IV is not met.
(c) Arrangement and Agency Fees. The Borrower shall pay an arrangement
fee to the Arranger for the Arranger's own account, and shall pay an agency fee
to the Administrative Agent for the Administrative Agent's own account, in the
amounts and at the times specified in the letter agreement, dated October 17,
2001 (the "Fee Letter"), between the Borrower, the Arranger and the
Administrative Agent. Such fees shall be fully earned when paid and shall be
nonrefundable for any reason whatsoever.
(d) Lenders' Upfront Fee. The Borrower agrees to pay on the Closing Date
to the Administrative Agent, for the account of the Lenders, an upfront fee in
an amount agreed between the Administrative Agent and the Borrower, calculated
based on each Lender's Commitment and allocated by the Administrative Agent.
Such upfront fees are for the credit facilities committed by the Lenders under
this Agreement and are fully earned on the date paid. The upfront fee paid to
each Lender is solely for its own account and is nonrefundable for any reason
whatsoever.
2.08 COMPUTATION OF INTEREST AND FEES. Interest on Base Rate Loans shall
be calculated on the basis of a year of 365 or 366 days, as the case may be, and
the actual number of days elapsed. Computation of all other types of interest
and all fees shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed, which results in a higher yield to the payee
thereof than a method based on a year of 365 or 366 days. Interest shall accrue
on each Loan for the day on which the Loan is made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such portion is
paid, provided that any Loan that is repaid on the same day on which it is made
shall bear interest for one day.
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2.09 EVIDENCE OF DEBT. The Loans made by each Lender shall be evidenced
by one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Loans made by the Lenders to the
Borrower and the interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of the Borrower hereunder to pay any amount owing with respect to the Loans. In
the event of any conflict between the accounts and records maintained by any
Lender and the accounts and records of the Administrative Agent in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, such Lender's Loans may be evidenced by a Note in
addition to such accounts or records. Each Lender may attach schedules to its
Note(s) and endorse thereon the date, Type (if applicable), amount and maturity
of the applicable Loans and payments with respect thereto.
2.10 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 11:00 a.m.,
San Francisco time, on the date specified herein. The Administrative Agent will
promptly distribute to each Lender its Pro Rata Share (or other applicable share
as provided herein) of such payment in like funds as received by wire transfer
to such Lender's Lending Office. All payments received by the Administrative
Agent after 11:00 a.m., San Francisco time, shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) Subject to the definition of "Interest Period," if any payment to be
made by the Borrower shall come due on a day other than a Business Day, payment
shall be made on the next following Business Day, and such extension of time
shall be reflected in computing interest or fees, as the case may be.
(c) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, interest and
fees then due hereunder, such funds shall be applied (i) first, toward costs and
expenses (including Attorney Costs and amounts payable under Article III)
incurred by the Collateral Agent, Administrative Agent and each Lender, (ii)
second, toward repayment of interest and fees then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of interest and fees
then due to such parties, and (iii) third, toward repayment of principal then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal then due to such parties.
(d) Unless the Borrower or any Lender has notified the Administrative
Agent prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made
26
such payment and may (but shall not be so required to), in reliance thereon,
make available a corresponding amount to the Person entitled thereto. If and to
the extent that such payment was not in fact made to the Administrative Agent in
immediately available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion
of such assumed payment that was made available to such Lender in
immediately available funds, together with interest thereon in respect
of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is
repaid to the Administrative Agent in immediately available funds, at
the Federal Funds Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount
thereof in immediately available funds, together with interest thereon
for the period from the date such amount was made available by the
Administrative Agent to the Borrower to the date such amount is
recovered by the Administrative Agent (the "Compensation Period") at a
rate per annum equal to the Federal Funds Rate from time to time in
effect. If such Lender pays such amount to the Administrative Agent,
then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith
upon the Administrative Agent's demand therefor, the Administrative
Agent may make a demand therefor upon the Borrower, and the Borrower
shall pay such amount to the Administrative Agent, together with
interest thereon for the Compensation Period at a rate per annum equal
to the rate of interest applicable to the applicable Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to
fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a
result of any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender with respect to any
amount owing under this subsection (d) shall be conclusive, absent manifest
error.
(e) If any Lender makes available to the Administrative Agent funds for
any Loan to be made by such Lender as provided in the foregoing provisions of
this Article II, and the conditions to the applicable Borrowing set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Administrative Agent shall return such funds (in like funds as received from
such Lender) to such Lender, without interest.
(f) The obligations of the Lenders hereunder to make Loans are several
and not joint. The failure of any Lender to make any Loan on any date required
hereunder shall not relieve any other Lender of its corresponding obligation to
do so on such date, and no Lender shall be responsible for the failure of any
other Lender to so make its Loan.
(g) Nothing herein shall be deemed to obligate any Lender to obtain the
funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
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2.11 SHARING OF PAYMENTS. If, other than as expressly provided elsewhere
herein, any Lender shall obtain on account of the Loans made by it any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) in excess of its ratable share (or other share contemplated
hereunder) thereof, such Lender shall immediately (a) notify the Administrative
Agent of such fact, and (b) purchase from the other Lenders such participations
in the Loans made by them as shall be necessary to cause such purchasing Lender
to share the excess payment in respect of such Loan pro rata with each of them;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from the purchasing Lender, such purchase shall to that
extent be rescinded and each other Lender shall repay to the purchasing Lender
the purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another Lender may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation. The Administrative Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section and will in each case notify the Lenders following
any such purchases or repayments. Each Lender that purchases a participation
pursuant to this Section shall from and after such purchase have the right to
give all notices, requests, demands, directions and other communications under
this Agreement with respect to the portion of the Obligations purchased to the
same extent as though the purchasing Lender were the original owner of the
Obligations purchased.
2.12 INCREASE IN COMMITMENTS.
(a) Provided there exists no Default or Event of Default, upon notice to
the Administrative Agent (which shall promptly notify the Lenders), the Borrower
may at any time after December 31, 2001 from time to time, but not more often
than once in each calendar year, request an increase in the Aggregate
Commitments in an amount equal to (x) $1,000,000,000 less (y) the then existing
Aggregate Commitments under this Agreement less (z) the then existing "Aggregate
Commitments" under and as defined in the Multi-Year Credit Agreement; provided
that such increase may not be for an amount less than $25,000,000. At the time
of sending such notice, the Borrower (in consultation with the Administrative
Agent) shall specify the time period within which each Lender is requested to
respond (which shall in no event be less than fifteen Business Days from the
date of delivery of such notice to the Lenders). Each Lender shall determine, in
its sole discretion, whether and to what extent it will increase its Commitments
and notify the Administrative Agent within such time period whether or not it
agrees to increase its Commitment and, if so, whether by an amount equal to,
greater than, or less than its Pro Rata Share of such requested increase. Any
Lender not responding within such time period shall be deemed to have declined
to increase its Commitment. The Administrative Agent shall notify the Borrower
and each Lender of the Lenders' responses to each request made hereunder. In the
event that the aggregate increase in Commitments agreed to by the responding
Lenders is less than the requested increase in the Aggregate Commitments, then
to achieve the full amount of a requested increase, the Borrower may also invite
additional Eligible Assignees to become Lenders pursuant to a Joinder Agreement.
28
(b) If any Commitments are increased in accordance with this Section
2.12, the Administrative Agent and the Borrower shall determine the effective
date of such increase (the "Increase Effective Date"). The Administrative Agent
and the Borrower shall promptly notify the Lenders of the final allocation of
such increase and the Increase Effective Date, no fewer than one Business Day
prior to the Increase Effective Date. As a condition precedent to such increase,
the Borrower shall deliver to the Administrative Agent a certificate of each
Loan Party dated as of the Increase Effective Date (in sufficient copies for
each Lender) signed by a Responsible Officer of such Loan Party (i) certifying
and attaching the resolutions adopted by such Loan Party approving or consenting
to such increase, and, (ii) in the case of the Borrower, including a Compliance
Certificate demonstrating pro forma compliance with the financial covenants
contained in Section 7.13 after giving effect to such increase and (iii)
certifying that, before and after giving effect to such increase, the
representations and warranties contained in Article V are true and correct on
and as of the Increase Effective Date, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they shall be true and correct as of such earlier date, and except that
this clause (iii) shall be deemed to refer to the last day of the most recent
fiscal quarter and year for which financial statements have been delivered in
respect of the representations and warranties made in Sections 5.05(a) and (b),
respectively, and no Default or Event of Default exists. The Borrower shall
deliver new or amended Notes reflecting the increased Commitment of any Lender
holding or requesting a Note. The Administrative Agent shall distribute an
amended Schedule 2.01 (which shall be deemed incorporated into this Agreement),
to reflect any changes therein resulting from such increase. The Borrower shall
prepay any Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Section 3.05) to the extent necessary to
keep the outstanding Loans ratable with any revised Pro Rata Shares arising from
any nonratable increase in the Aggregate Commitments under this Section.
2.13 SECURITY AND GUARANTY.
(a) All obligations of the Borrower under this Agreement, the Notes and
all other Loan Documents shall be secured in accordance with the Collateral
Documents.
(b) All obligations of the Borrower under this Agreement, each of the
Notes and all other Loan Documents shall be unconditionally guaranteed by the
Guarantors pursuant to the Guaranty.
ARTICLE III.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent, the Collateral Agent or any Lender under any Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, assessments, fees,
withholdings or similar charges, and all liabilities with respect thereto,
excluding net income taxes and franchise and excise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent, the Collateral Agent or
any Lender as a result of a present or former connection between the
Administrative Agent, the Collateral Agent
29
or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent, the
Collateral Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any Loan
Document) (all such non-excluded taxes, duties, levies, imposts, deductions,
assessments, fees, withholdings or similar charges, and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by any
Laws to deduct any Taxes from or in respect of any sum payable under any Loan
Document to the Administrative Agent, the Collateral Agent or any Lender, then,
subject to Section 3.01(e), (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this Section), the Administrative Agent, the
Collateral Agent and such Lender receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions, (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, the Borrower shall
furnish to the Administrative Agent (which shall forward the same to such Lender
or the Collateral Agent, as the case may be) the original or a certified copy of
a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent, the Collateral Agent or any Lender, the Borrower shall
also pay to the Administrative Agent (for its own account or the account of such
Lender, as the case may be), the Collateral Agent or to such Lender, at the time
interest is paid, such additional amount that such Lender specifies as necessary
to preserve the after-tax yield (after factoring in all taxes, including taxes
imposed on or measured by net income) the Administrative Agent, the Collateral
Agent or such Lender would have received if such Taxes or Other Taxes had not
been imposed (but only if such Taxes or Other Taxes are imposed because the
Borrower has made any payment to the Administrative Agent, the Collateral Agent
or any Lender hereunder or under any other Loan Document from a Person or entity
outside of the United States to a Person or entity inside of the United States
or from a Person or entity inside of the United States to a Person or entity
outside of the United States).
(d) The Borrower agrees to indemnify the Administrative Agent, the
Collateral Agent and each Lender for (i) the full amount of Taxes and Other
Taxes (including any Taxes or Other Taxes imposed or asserted by any
jurisdiction on amounts payable under this Section) paid by the Administrative
Agent, the Collateral Agent and such Lender, (ii) amounts payable under Section
3.01(c) and (iii) any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto, in each case whether or not such
Taxes or Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. Payment under
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this subsection (d) shall be made within 30 days after the date the Lender, the
Collateral Agent or the Administrative Agent makes a demand therefor.
(e) The Borrower will not be required to pay any additional amounts in
respect of United States Federal income tax pursuant to Section 3.01(b) or (c)
to any Lender :
(i) if the obligation to pay such additional amounts arose
solely as a result of such Lender's failure to comply with its
obligations under Section 10.15;
(ii) if such Lender shall have delivered to the Borrower a Form
W-8ECI pursuant to Section 10.15, and such Lender shall not at any time
be entitled to exemption from deduction or withholding of United States
Federal income tax in respect of the payments by the Borrower hereunder
for any reason other than a change in United States law or regulations
or in the official interpretation of such law or regulations by any
Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date of
delivery of such Form W-8ECI; or
(iii) if the Lender shall have delivered to the Borrower a Form
W-8BEN pursuant to Section 10.15, and such Lender shall not at any time
be entitled to exemption from deduction or withholding of United States
Federal income tax in respect of payments by the Borrower hereunder for
any reason other than a change in United States law or regulations or
any applicable tax treaty or regulations or in the official
interpretation of any such law, treaty or regulations by any
Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date of
delivery of such Form W-8BEN.
(f) If the Borrower is required to pay any amount to any Lender, the
Administrative Agent or the Collateral Agent pursuant to Section 3.01(b) or (c),
then such Lender shall use reasonable efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office so as
to eliminate any such additional payment by the Borrower which may thereafter
accrue, if such change in the sole judgment of such Lender is not otherwise
disadvantageous to such Lender.
(g) Each of the Lenders and the Administrative Agent agrees that it will
take all reasonable actions by all usual means to maintain all exemptions, if
any, available to it from the United States withholding taxes (whether available
pursuant to treaty, existing administrative waiver, or otherwise); provided,
however, that neither the Administrative Agent nor any Lender shall be obligated
by reason of this Section 3.01(g) to disclose any information regarding its tax
affairs or tax computations, to reorder or alter in any way its general tax or
other affairs or tax planning, or to undertake any action that such Person deems
to involve the incurrence of any risk of liability or cost to itself or which
requires any expenditure of effort which such Person deems unreasonable under
the circumstances.
3.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans or to determine or charge
31
interest rates based on the Eurodollar Rate, or any Governmental Authority has
imposed material restrictions on the authority of such Lender to purchase or
sell, or to take deposits of, Dollars in the applicable offshore Dollar market,
or to determine or charge interest rates based upon the Eurodollar Rate, then,
on notice thereof by such Lender to the Borrower through the Administrative
Agent, any obligation of such Lender to make or continue Eurodollar Rate Loans
or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended until
such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, the Borrower shall, upon demand from such Lender (with a copy to
the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate
Loans of such Lender to Base Rate Loans, either on the last day of the Interest
Period thereof, if such Lender may lawfully continue to maintain such Eurodollar
Rate Loans to such day, or immediately, if such Lender may not lawfully continue
to maintain such Eurodollar Rate Loans. Upon any such prepayment or conversion,
the Borrower shall also pay interest on the amount so prepaid or converted. Each
Lender agrees to designate a different Lending Office if such designation will
avoid the need for such notice and will not, in the good faith judgment of such
Lender, otherwise be materially disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES. If the Administrative Agent
determines in connection with any request for a Eurodollar Rate Loan or a
conversion to or continuation thereof that (a) Dollar deposits are not being
offered to banks in the applicable offshore Dollar market for the applicable
amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and
reasonable means do not exist for determining the Eurodollar Rate for such
Eurodollar Rate Loan, or (c) the Eurodollar Rate for such Eurodollar Rate Loan
does not adequately and fairly reflect the cost to the Lenders of funding such
Eurodollar Rate Loan, the Administrative Agent will promptly notify the Borrower
and all Lenders. Thereafter, the obligation of the Lenders to make or maintain
Eurodollar Rate Loans shall be suspended until the Administrative Agent revokes
such notice. Upon receipt of such notice, the Borrower may revoke any pending
request for a Borrowing, conversion or continuation of Eurodollar Rate Loans or,
failing that, will be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY; RESERVES ON
EURODOLLAR RATE LOANS.
(a) If any Lender determines that as a result of the introduction,
announced after the date hereof, of or any change in or in the interpretation of
any Law, or such Lender's compliance therewith, there shall be any increase in
the cost to such Lender of agreeing to make or making, funding or maintaining
Eurodollar Rate Loans, or a reduction in the amount received or receivable by
such Lender in connection with any of the foregoing (excluding for purposes of
this subsection (a) any such increased costs or reduction in amount resulting
from (i) Taxes or Other Taxes (as to which Section 3.01 shall govern), (ii)
changes in the basis of taxation of overall net income or overall gross income
by the United States or any foreign jurisdiction or any political subdivision of
either thereof under the Laws of which such Lender is organized or has its
Lending Office, and (iii) reserve requirements contemplated by Section 3.04(c),
then from time to time upon demand of such Lender (with a copy of such demand to
the Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
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(b) If any Lender determines that the introduction, announced after the
date hereof, of any Law regarding capital adequacy or any change, announced
after the date hereof, therein or in the interpretation thereof, or compliance
by such Lender (or its Lending Office) therewith, has the effect of reducing the
rate of return on the capital of such Lender or any corporation controlling such
Lender as a consequence of such Lender's obligations hereunder (taking into
consideration its policies with respect to capital adequacy and such Lender's
desired return on capital), then from time to time upon demand of such Lender
(with a copy of such demand to the Administrative Agent), the Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
reduction.
(c) The Borrower shall pay to each Lender, as long as such Lender shall
be required to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional costs on the unpaid principal amount of
each Eurodollar Rate Loan equal to the actual costs of such reserves allocated
to such Loan by such Lender (as determined by such Lender in good faith, which
determination shall be conclusive), which shall be due and payable on each date
on which interest is payable on such Loan, provided the Borrower shall have
received at least 15 days' prior notice (with a copy to the Administrative
Agent) of such additional interest from such Lender. If a Lender fails to give
notice 15 days prior to the relevant Interest Payment Date, such additional
interest shall be due and payable 15 days from receipt of such notice.
3.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); provided, however, that any such loss or expense
shall not include lost profit due solely to a failure to receive the Applicable
Margin relating to any such Loan for the portion of the applicable Interest
Period remaining after the date of such prepayment;
(b) any failure by the Borrower (for a reason other than the failure of
such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower; or
(c) any assignment of a Eurodollar Rate Loan on a day other than the
last day of the Interest Period therefor as a result of a request by the
Borrower pursuant to Section 10.16;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the
Lenders under this Section 3.05, each Lender shall be deemed to have funded each
Eurodollar Rate Loan made by it at the Eurodollar Rate for such Loan by a
matching deposit or other borrowing in the applicable
33
offshore Dollar interbank market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
(a) A certificate of the Administrative Agent, the Collateral Agent or
any Lender claiming compensation under this Article III and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error; provided, however that the Borrower shall not be
liable for any such amount attributable to any period prior to the date 180 days
prior to the date that an officer at such Lender responsible for the
administration of this Agreement knew or reasonably should have known of such
claim for reimbursement or compensation, unless the cause of such claim has
retroactive effect beyond such 180 days, in which case the Borrower shall be
liable. In determining such amount, the Administrative Agent, the Collateral
Agent or such Lender may use any reasonable averaging and attribution methods.
(b) Upon any Lender's making a claim for compensation under Section 3.01
or 3.04, the Borrower may remove or replace such Lender in accordance with
Section 10.16.
3.07 SURVIVAL. All of the Borrower's obligations under this Article III
shall survive termination of the Aggregate Commitments and payment in full of
all the other Obligations.
ARTICLE IV.
CONDITIONS PRECEDENT TO BORROWINGS
4.01 CONDITIONS OF INITIAL BORROWING. The obligation of each Lender to
make its initial Loan hereunder is subject to satisfaction of the following
conditions precedent:
(a) Unless waived by all the Lenders (or by the Administrative Agent
with respect to immaterial matters or items specified in clause (v) or (vi)
below with respect to which the Borrower has given assurances satisfactory to
the Administrative Agent that such items shall be delivered promptly following
the Closing Date), the Administrative Agent's receipt of the following, each of
which shall be originals or facsimiles (followed promptly by originals) unless
otherwise specified, each properly executed by a Responsible Officer of the
signing Loan Party, each dated the Closing Date (or, in the case of certificates
of governmental officials, a recent date before the Closing Date) and each in
form and substance satisfactory to the Administrative Agent, the Lenders and
their respective legal counsel:
(i) executed counterparts of this Agreement, sufficient in
number for distribution to the Administrative Agent, each Lender and the
Borrower;
(ii) Notes executed by the Borrower in favor of each Lender
requesting such a Note, each in a principal amount equal to such
Lender's Commitment;
(iii) executed counterparts of the Guaranty from each Eligible
Material Subsidiary;
34
(iv) executed counterparts of Stock Pledge Agreements from the
Pledgors with respect to 65% of any and all Equity Securities of the
Ineligible Material Subsidiaries comprising the First Tier Foreign
Subsidiaries;
(v) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of the
Borrower and each Loan Party that is a Domestic Subsidiary as the
Administrative Agent may require to establish the identities of and
verify the authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer in connection with this
Agreement and the other Loan Documents to which such Loan Party is a
party;
(vi) such evidence as the Administrative Agent may reasonably
require to verify the due organization or formation, good standing and
qualification to do business with respect to the Borrower and each other
Loan Party that is a Domestic Subsidiary in each such Person's
jurisdiction of organization and in the jurisdiction where each such
Person maintains its principal place of business;
(vii) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in Sections
4.02(a) and (b) have been satisfied, (B) that there has been no event or
circumstance since June 30, 2001 which has or could be reasonably
expected to have a Material Adverse Effect, except as disclosed (I) in
public filings by the Borrower or SCI with the SEC or (II) in press
releases of the Borrower or SCI or other public disclosures of the
Borrower or SCI, in each case publicly filed or publicly released after
June 30, 2001 but prior to the date hereof; and (C) the current Debt
Ratings;
(viii) an opinion of U.S. counsel to the Borrower and each Loan
Party that is a Domestic Subsidiary substantially in the form of Exhibit
G;
(ix) evidence in form and substance satisfactory to the
Administrative Agent that the security interests in the Pledged Shares
of the First Tier Foreign Subsidiaries granted by the Borrower and its
Subsidiaries to the Collateral Agent (on behalf of the Lenders) pursuant
to the Stock Pledge Agreements have been properly perfected with first
priority (including the delivery to the Collateral Agent for the benefit
of the Lenders all of the Pledged Shares, accompanied in each case by
executed and undated stock powers (or other applicable documents or
agreements)), except for such opinions of counsel and such other
documents and assurances relating to Foreign Subsidiaries, or the Equity
Securities thereof, which shall be delivered pursuant to Section 6.14;
(x) the Disclosure Letter; and
(xi) such other assurances, certificates, documents, consents or
opinions as the Administrative Agent or the Lenders reasonably may
require.
(b) The Administrative Agent shall have received in sufficient copies
for the Lenders, in form and substance satisfactory to it and the Lenders, each
certified by a Responsible Officer of the Borrower (i) the Audited Financial
Statements, (ii) (A) the unaudited consolidated balance
35
sheet of the Borrower and its Subsidiaries as at December 31, 2000, March 31,
2001 and June 30, 2001, and the related consolidated statements of income,
shareholders' equity and cash flows, for the fiscal quarters then ended and (B)
the unaudited consolidated balance sheet of SCI and its Subsidiaries as at
September 30, 2001 and the related consolidated statements of income,
shareholders' equity and cash flows, for the fiscal quarter then ended and (iii)
the pro forma balance sheet of and five-year financial statement projections for
the Borrower and its Subsidiaries and SCI and its Subsidiaries as of and
commencing at September 30, 2001, and a completed Compliance Certificate as of
September 30, 2001 (which certificate may omit any reference to the covenant set
forth at Section 7.13(a)) based on such pro forma balance sheet and projections,
each giving effect to the SCI Merger and the transactions contemplated in
connection therewith and reflecting good faith estimated purchase price
accounting adjustments.
(c) The Administrative Agent shall have received, in form and substance
satisfactory to it and the Lenders, evidence satisfactory to it that the
commitments to extend credit under the SCI Existing 364-Day Credit Facility and
the SCI Existing 5-Year Credit Facility have been terminated and that all
principal, interest, charges and fees due thereunder have been paid or that
arrangements reasonably satisfactory to the Administrative Agent for the payment
thereof have been made by the Borrower (the Borrower and each Lender party
hereto that is a lender under the either of such facilities acknowledging that
such commitments shall be terminated simultaneously with the closing hereunder).
(d) The Administrative Agent shall have received, in form and substance
satisfactory to it and the Lenders, a certificate of Responsible Officers of the
Borrower and SCI (i) attaching true and complete copies of all SCI Merger
Documents, (ii) certifying that the SCI Merger Documents have not been altered,
amended or otherwise changed or supplemented and that no condition therein or
provision thereof has been waived, (iii) certifying that all (A) material
authorizations, consents or approvals of, notices to or filings with, any
Governmental Authority, including pursuant to the HSR Act, and (B) material
approvals and consents of any other Person, required in connection with the SCI
Merger or the execution, delivery and performance of the SCI Merger Documents,
shall have been obtained and remain in full force and effect and that all
applicable waiting periods have expired without notice of any action which seeks
to restrain, enjoin or otherwise prohibit or delay the SCI Merger having been
taken by any Governmental Authority, (iv) certifying that there does not exist
(A) any Law, order, decree, judgment, ruling or injunction which could restrain
or prevent the consummation of the SCI Merger in the manner contemplated by the
SCI Merger Documents, and (B) any pending or, to the best knowledge of such
Responsible Officers, threatened action, suit, investigation or proceeding
relating to the SCI Merger which seeks or threatens any of the foregoing and (v)
certifying that on the Closing Date the SCI Merger will be consummated in
accordance with the terms of the SCI Merger Documents and in compliance with
applicable Law.
(e) The Administrative Agent shall have received a certificate of a
Responsible Officer of SCI, in form and substance satisfactory to it and the
Lenders, (i) certifying that (A) a written offer has been made by SCI prior to
the Closing Date to each holder of record of the SCI Senior Notes to repurchase
such notes and that such offer was made in compliance with the terms of the SCI
Senior Notes and in accordance with applicable Law, (B) all of such offers have
expired in accordance with their terms and (C) payment for all such notes
tendered for repurchase in accordance with such offer has been initiated; (ii)
(A) SCI has received all
36
necessary consents and approvals under the SCI Existing Securitization Facility
such that such facility will remain in place and will be available to SCI
subsequent to the SCI Merger and (B) there will be no default or event of
default under such facility as a result of the consummation of the SCI Merger;
and (iii) certifying that contemporaneously with the initial Borrowing the
Borrower has initiated repayment of the SCI Adjustable Rate Senior Notes.
(f) The Administrative Agent shall have received a certificate of a
Responsible Officer of the Borrower, in form and substance satisfactory to it
and the Lenders, certifying compliance with Section 6.13(g) as of the Closing
Date, which certificate shall attach the calculations forming the basis for such
certification.
(g) Any fees required to be paid on or before the Closing Date shall
have been paid.
(h) The Borrower shall have paid all Attorney Costs (other than the
allocated cost of internal legal services and all disbursements of internal
counsel) of the Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such additional amounts of Attorney Costs (other than the
allocated cost of internal legal services and all disbursements of internal
counsel) as shall constitute its reasonable estimate of Attorney Costs (other
than the allocated cost of internal legal services and all disbursements of
internal counsel) incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude a final
settling of accounts between the Borrower and the Administrative Agent).
(i) The Closing Date shall occur on or prior to December 6, 2001.
4.02 CONDITIONS TO ALL BORROWINGS. The obligation of each Lender to make
any Loans hereunder or otherwise to honor any Notice (other than any Notice
requesting only a conversion of Loans to another Type, or a continuation of
Loans as the same Type) is subject to the following conditions precedent:
(a) The representations and warranties of the Borrower contained in
Article V, or which are contained in any document furnished at any time under or
in connection herewith, shall be true and correct on and as of the date of such
Borrowing, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of such earlier date , and except that this subsection (a) shall be
deemed to refer to the last day of the most recent fiscal quarter and year for
which financial statements have been delivered in respect of the representations
and warranties made in Sections 5.05(a) and (b), respectively.
(b) No Default or Event of Default shall exist, or would result from
such proposed Borrowing.
(c) The Administrative Agent shall have received a Notice in accordance
with the requirements hereof.
(d) The Administrative Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or consents
related to the foregoing as the Administrative Agent or the Required Lenders
reasonably may require.
37
Each Notice (other than any Notice requesting only a conversion of Loans
to another Type, or a continuation of Loans as the same Type) submitted by the
Borrower shall be deemed to be a representation and warranty that the conditions
specified in Sections 4.02(a) and (b) have been satisfied on and as of the date
of the applicable Borrowing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
5.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. Each Loan
Party (a) is duly organized or formed, validly existing and in good standing
under the Laws of the jurisdiction of its incorporation or organization, (b) has
all requisite power and authority and all governmental licenses, authorizations,
consents and approvals to (i) own its assets and carry on its business except
where the failure to have any such license, authorization, consent or approval
could not reasonably be expected to have a Material Adverse Effect and (ii) to
execute, deliver, and perform its obligations under the Loan Documents to which
it is a party, (c) is duly qualified and is licensed and in good standing under
the Laws of each jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such qualification or
license, and (d) is in compliance with all Laws, except in each case referred to
in clause (c) or this clause (d), to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect.
5.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien under, any material
Contractual Obligation to which such Person is a party or any order, injunction,
writ or decree of any Governmental Authority to which such Person or its
property is subject; or (c) violate any Law applicable to such Loan Party.
5.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person (except for any recordings or filings
required in connection with the Liens granted to the Administrative Agent and
the Lenders under the Collateral Documents) is necessary or required in
connection with the execution, delivery or performance by, or enforcement
against, any Loan Party of this Agreement or any other Loan Document or the
grant or perfection of the Liens of the Collateral Agent (on behalf of the
Lenders) on the Collateral. No material approval, consent, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority (including pursuant to the HSR Act) or any other Person
is necessary or required in connection with the SCI Merger or the execution,
delivery and performance of the SCI Merger Documents, which has not been
obtained and which does not remain in full force and effect and all applicable
waiting periods have expired without notice of any action which seeks to
restrain, enjoin or otherwise prohibit or delay the SCI Merger having been taken
by any Governmental Authority or any other Person.
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5.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms, except to the extent that the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting creditor's rights generally
and by equitable principles (regardless of whether enforcement is sought in
equity or at law).
5.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries and SCI and its
Subsidiaries, respectively, as of the respective dates thereof and their results
of operations for the periods covered thereby in accordance with GAAP
consistently applied throughout the periods covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries and SCI
and its Subsidiaries as of the respective dates thereof, including liabilities
for taxes, material commitments and Indebtedness in accordance with GAAP
consistently applied throughout the periods covered thereby.
(b) The unaudited consolidated balance sheet of (i) the Borrower and its
Subsidiaries as at December 31, 2000, March 31, 2001 and June 30, 2001, and the
related consolidated statements of income, shareholders' equity and cash flows
for the fiscal quarters then ended and (ii) SCI and its Subsidiaries as at
September 30, 2001, and the related consolidated statements of income,
shareholders' equity and cash flows for the fiscal quarter then ended, each (A)
were prepared in accordance with GAAP consistently applied throughout the period
covered thereby (subject to normal year-end adjustments and the absence of
notes), except as otherwise expressly noted therein; (B) fairly present in all
material respects the financial condition of the Borrower and its Subsidiaries
and SCI and its Subsidiaries, respectively, as of the date thereof and their
results of operations for the period covered thereby in accordance with GAAP
consistently applied throughout the period covered thereby, except as otherwise
expressly noted therein; and (iii) show all material indebtedness and other
liabilities, direct or contingent, of the Borrower and its Subsidiaries and SCI
and its Subsidiaries, respectively, as of the date thereof, including
liabilities for taxes, material commitments and Indebtedness in accordance with
GAAP consistently applied throughout the period covered thereby.
(c) Since June 30, 2001, there has been no event or circumstance that
has or could reasonably be expected to have a Material Adverse Effect, except as
disclosed (i) in public filings by the Borrower or SCI with the SEC or (ii) in
press releases of the Borrower or SCI or other public disclosures of the
Borrower or SCI, in each case publicly filed or publicly released after June 30,
2001 but prior to the date hereof.
5.06 LITIGATION. Except as specifically disclosed in Section 5.06 of the
Disclosure Letter, there are no actions, suits, proceedings, claims or disputes
pending or, to the knowledge of the Borrower, threatened or contemplated, at
law, in equity, in arbitration or before any
39
Governmental Authority, by or against the Borrower or any of its Subsidiaries or
against any of their properties or revenues which (a) purport to affect or
pertain to this Agreement or any other Loan Document, or any of the transactions
contemplated hereby, or (b) could reasonably be expected to have a Material
Adverse Effect.
5.07 NO DEFAULT. Neither the Borrower nor any Subsidiary of the Borrower
is in default under or with respect to any Contractual Obligation that could be
reasonably expected to have a Material Adverse Effect. No Default or Event of
Default has occurred and is continuing or would result from the consummation of
the transactions contemplated by this Agreement or any other Loan Document.
5.08 OWNERSHIP OF PROPERTY; LIENS. The Borrower and each Subsidiary of
the Borrower have good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of their respective businesses, except for Permitted Liens and such
defects in title as would not, individually or in the aggregate, have a Material
Adverse Effect. As of the Closing Date, the property of the Borrower and its
Subsidiaries is subject to no Liens, other than Permitted Liens.
5.09 ENVIRONMENTAL COMPLIANCE. The Borrower and its Subsidiaries conduct
in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof the Borrower has reasonably concluded
that, except as specifically disclosed in Section 5.09 of the Disclosure Letter,
such Environmental Laws and claims would not, individually or in the aggregate,
have a Material Adverse Effect.
5.10 INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies or through the
Borrower's own program of self-insurance, in such amounts, with such deductibles
and covering such risks as are customarily carried by companies engaged in
similar businesses and owning similar properties in localities where the
Borrower or its Subsidiaries operate.
5.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings and for which adequate reserves have been
provided in accordance with GAAP. To the Borrower's knowledge, there is no
proposed tax assessment against the Borrower or any Subsidiary of the Borrower
that would, if made, have a Material Adverse Effect.
5.12 ERISA COMPLIANCE; FOREIGN PLANS.
(a) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other applicable Federal or state
Laws. Each Plan that is intended to qualify under Section 401(a) of the Code has
received a favorable determination letter from the IRS or an application for
such a letter is currently being processed by the IRS with respect
40
thereto and, to the knowledge of the Borrower, nothing has occurred which would
prevent, or cause the loss of, such qualification. The Borrower and each ERISA
Affiliate have made all required contributions to each Plan subject to Section
412 of the Code, and no application for a funding waiver or an extension of any
amortization period pursuant to Section 412 of the Code has been made with
respect to any Plan.
(b) There are no pending or, to the knowledge of the Borrower,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan that could be reasonably be expected to have a Material
Adverse Effect. There has been no prohibited transaction or violation of the
fiduciary responsibility rules with respect to any Plan that has resulted or
could be reasonably expected to result in a Material Adverse Effect.
(c) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither the
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability under Title IV of ERISA with respect to any Pension Plan (other
than premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Sections 4201
or 4243 of ERISA with respect to a Multiemployer Plan; and (v) neither the
Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA.
(d) All employer and employee contributions required by any applicable
Law in connection with all Foreign Plans have been made, or, if applicable,
accrued, in accordance with the country-specific accounting practices. The fair
market value of the assets of each funded Foreign Plan, the liability of each
insurer for any Foreign Plan funded through insurance or the book reserve
established for any Foreign Plan, together with any accrued contributions, is
sufficient to procure or provide for the accrued benefit obligations, as of the
date hereof, with respect to all current and former participants in such Foreign
Plan according to the actuarial assumptions and valuations most recently used to
determine employer contributions to such Foreign Plan, which actuarial
assumptions are commercially reasonable. Each Foreign Plan required to be
registered has been registered and has been maintained in good standing with
applicable Governmental Authorities. Each Foreign Plan reasonably complies in
all material respects with all applicable Laws.
5.13 SUBSIDIARIES. As of the Closing Date: (i) the Borrower has no
Subsidiaries or Material Subsidiaries other than those specifically disclosed in
Part (a) of Section 5.13 of the Disclosure Letter (and each Material Subsidiary
has been accurately identified therein as either an Eligible or Ineligible
Material Subsidiary and as a First Tier Foreign Subsidiary, as applicable), and
has no equity investments in any other Person other than those specifically
disclosed in Part (b) of Section 5.13 of the Disclosure Letter; and (ii) Section
5.13 of the Disclosure Letter sets forth a list of all authorized Equity
Securities of each Subsidiary of the Borrower, and the number of shares of each
class of Equity Securities of Material Subsidiaries that are First Tier Foreign
Subsidiaries that are issued and outstanding. All of the issued and outstanding
Equity Securities of the Borrower and the Subsidiaries have been duly authorized
and are validly issued, fully paid and non-assessable, and are free and clear of
any Liens and other restrictions (including any restrictions on the right to
vote, sell or otherwise dispose of such
41
Equity Securities) and of any preemptive or other similar rights to subscribe
for or to purchase any such Equity Securities, other than as set forth in the
Stock Pledge Agreements. There are no outstanding rights to acquire Equity
Securities in any Subsidiary and no additional Equity Securities of any
Subsidiary of the Borrower will become issuable to any Person pursuant to any
"anti-dilution" provisions of any such issued and outstanding Equity Securities.
All Equity Securities of each Subsidiary of the Borrower have been issued and
offered in compliance in all material respects with applicable Law.
5.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) The Borrower is not engaged, principally or as one of its important
activities, in the business of purchasing or carrying margin stock (within the
meaning of Regulation U issued by the FRB), or extending credit for the purpose
of purchasing or carrying margin stock.
(b) None of the Borrower, any Person controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
5.15 DISCLOSURE. No statement, information, report, certification,
representation, or warranty made by any Loan Party or any Responsible Officer of
any Loan Party in any Loan Document or furnished to the Administrative Agent or
any Lender by or on behalf of any Loan Party in connection with any Loan
Document (including in any and all disclosure materials furnished by or on
behalf of any Loan Party) contains any untrue statement of a material fact or
omits any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided that to the extent any such document, information,
report, financial statement, exhibit or schedule was based upon or constitutes a
forecast or projection, the Borrower represents only that it acted in good faith
and utilized reasonable assumptions and due care in the preparation of such
document, information, report, financial statement, exhibit or schedule (it
being understood that forecasts and projections by their nature involve
approximations and uncertainties).
5.16 INTELLECTUAL PROPERTY; LICENSES, ETC. The Borrower and its
Subsidiaries own, or possess the right to use (or could obtain such ownership or
licenses or rights on terms not materially adverse to the Borrower and its
Subsidiaries, taken as a whole, and under circumstances that could not
reasonably be expected to have a Material Adverse Effect), all of the
trademarks, service marks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intellectual property rights (together, "IP
Rights") that are reasonably necessary for the operation of their respective
businesses, without conflict with the rights of any other Person except for such
conflicts that could not reasonably be expected to have a Material Adverse
Effect. To the knowledge of the Borrower, no slogan or other advertising device,
product, process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrower or any Subsidiary of the Borrower
infringes upon any rights held by any other Person except for any such
infringement that could not reasonably be expected to have a Material Adverse
Effect. Except as specifically disclosed in Section 5.16 of the Disclosure
42
Letter, no claim or litigation regarding any of the foregoing is pending or, to
the knowledge of the Borrower, threatened, and no patent, invention, device,
application, principle or any statute, law, rule, regulation, standard or code
is pending or, to the knowledge of the Borrower, proposed, which, in either
case, could reasonably be expected to have a Material Adverse Effect.
5.17 PLEDGE. The Collateral Documents are effective to create in favor
of the Collateral Agent for the benefit of the Lenders, a legal, valid and
enforceable first priority perfected security interest in and Lien on, subject
to the terms thereof, all right, title and interest of the Borrower and its
Subsidiaries in the Collateral.
5.18 CONSUMMATION OF SCI MERGER. As of the Closing Date the SCI Merger
has been consummated in accordance with the terms of the SCI Merger Documents
and in compliance with applicable law and regulatory approvals. The SCI Merger
Documents have not been altered, amended or otherwise changed or supplemented in
any material respect and no material condition therein or material provision
thereof has been waived. The SCI Merger Documents are in full force and effect
and are legal, valid and binding obligations of each party thereto enforceable
against each such party in accordance with their respective terms, except to the
extent that the enforceability thereof may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws affecting creditor's
rights generally and by equitable principles (regardless of whether enforcement
is sought in equity or at law).
5.19 MERGER REPRESENTATIONS. All representations and warranties of the
Borrower in the SCI Merger Documents are true and correct in all material
respects as of each date made or deemed made. To the Borrower's knowledge, all
representations and warranties of SCI in the SCI Merger Documents are true and
correct in all material respects as of each date made or deemed made.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation shall remain unpaid or unsatisfied, the Borrower shall, and
shall (except in the case of the covenants set forth in Sections 6.01, 6.02 and
6.03) cause each of its Subsidiaries to:
6.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent, in form
and detail satisfactory to the Administrative Agent and the Required Lenders:
(a) as soon as available, but in any event within 90 days after the end
of each fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal year, and the related
consolidated statements of income or operations, shareholders' equity and cash
flows for such fiscal year, setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable detail, audited and
accompanied by a report and opinion of an independent certified public
accountant of nationally recognized standing reasonably acceptable to the
Required Lenders, which report and opinion shall be prepared in accordance with
GAAP and shall not be subject to any qualifications or exceptions as to the
scope of the audit nor to any qualifications and exceptions not reasonably
acceptable to the Required Lenders; and
43
(b) as soon as available, but in any event within 45 days after the end
of each of the first three fiscal quarters of each fiscal year of the Borrower,
a consolidated balance sheet of the Borrower and its Subsidiaries as at the end
of such fiscal quarter, and the related consolidated statements of income or
operations, shareholders' equity and cash flows for such fiscal quarter and for
the portion of the Borrower's fiscal year then ended, setting forth in each case
in comparative form the figures for the corresponding fiscal quarter of the
previous fiscal year and the corresponding portion of the previous fiscal year,
all in reasonable detail and certified by a Responsible Officer of the Borrower
as fairly presenting in all material respects the financial condition, results
of operations and cash flows of the Borrower and its Subsidiaries in accordance
with GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes.
As to any information contained in materials furnished pursuant to subsection
6.02(d), the Borrower shall not be separately required to furnish such
information under subsection (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in subsection (a) and (b) above at the times specified
therein.
6.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) within five days after the delivery of the financial statements
referred to in Section 6.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default insofar as it relates to accounting matters (which
certificate may be limited to the extent required by accounting rules or
guidelines) or, if any such Default or Event of Default shall exist, stating the
nature and status of such event;
(b) within five days after the delivery of the financial statements
referred to in Sections 6.01(a) and (b): (i) a duly completed Compliance
Certificate signed by a Responsible Officer of the Borrower and (ii) a list of
Material Subsidiaries, Non-Material Subsidiaries and First Tier Foreign
Subsidiaries of the Borrower and a report on the status of the Borrower's
compliance with Section 6.13;
(c) promptly after requested by the Administrative Agent or any Lender,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the Borrower by independent accountants in connection with the
accounts or books of the Borrower or any Subsidiary, or any audit of any of
them;
(d) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of the Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which the Borrower may file or be
required to file with the SEC under Section 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to the
Administrative Agent pursuant hereto, in each case, other than exhibits thereto;
and
44
(e) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary as the
Administrative Agent, at the request of any Lender, may from time to time
request.
Reports required to be delivered pursuant to Sections 6.01(a), 6.01(b) or
6.02(d) (to the extent any such financial statements, reports or proxy
statements are included in materials otherwise filed with the SEC) may be
delivered electronically and if so, shall be deemed to have been delivered on
the date on which the Borrower posts such reports, or provides a link thereto,
either: (i) on the Borrower's website on the Internet at the website address
listed on Schedule 10.02; or (ii) when such report is posted electronically on
IntraLinks/IntraAgency or other relevant website which each Lender and the
Administrative Agent have access to (whether a commercial, third-party website
or whether sponsored by the Administrative Agent), if any, on the Borrower's
behalf; provided that: (x) the Borrower shall deliver paper copies of such
reports to the Administrative Agent or any Lender who requests the Borrower to
deliver such paper copies until written request to cease delivering paper copies
is given by the Administrative Agent or such Lender; (y) the Borrower shall
notify (which may be by facsimile or electronic mail) the Administrative Agent
and each Lender of the posting of any such reports and immediately following
such notification the Borrower shall provide to the Administrative Agent, by
electronic mail, electronic versions (i.e., soft copies) of such reports; and
(z) in every instance the Borrower shall provide paper copies of the Compliance
Certificates required by subsection (c) above to the Administrative Agent.
Except for such Compliance Certificates, the Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the reports referred
to above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
reports.
6.03 NOTICES.
Promptly notify the Administrative Agent and each Lender:
(a) of the occurrence of any Default or Event of Default;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower or any Subsidiary and any Governmental
Authority; or (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws;
(c) of any litigation, investigation or proceeding involving any Loan
Party in which the amount involved exceeds the Threshold Amount, or in which
injunctive relief or similar relief is sought, which relief, if granted, could
be reasonably expected to have a Material Adverse Effect;
(d) of the occurrence of any ERISA Event;
45
(e) of any material change in accounting policies or financial reporting
practices by the Borrower or any Subsidiary; provided that, the description of
any such changes set forth in the Borrower's filings with the SEC, or the notes
to any financial statements included therein, when delivered to the
Administrative Agent and the Lenders, shall constitute notice sufficient under
this subsection (e); and
(f) of any announcement by ▇▇▇▇▇'▇ or S&P of any change or possible
change in a Debt Rating.
Each notice pursuant to this Section (other than under subsection (e))
shall be accompanied by a statement of a Responsible Officer of the Borrower
setting forth details of the occurrence referred to therein and stating what
action the Borrower has taken and proposes to take with respect thereto. Each
notice pursuant to Section 6.03(a) shall describe with particularity any and all
provisions of this Agreement or other Loan Document that have been breached, if
any.
6.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable (or within any applicable grace period), all its obligations and
liabilities, including (a) all tax liabilities, assessments and governmental
charges or levies upon it or its properties or assets, unless the same are being
contested in good faith by appropriate proceedings and adequate reserves in
accordance with GAAP are being maintained by the Borrower or such Subsidiary;
(b) all lawful claims which, if unpaid, would by law become a Lien (other than
Permitted Liens) upon its property; and (c) all Indebtedness, as and when due
and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.
6.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain in
full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
Section 7.04 or 7.05, (b) except to the extent that the failure to do so could
not reasonably be expected to have a Material Adverse Effect, take all
reasonable action to maintain all rights, privileges, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
in a transaction permitted by Section 7.04 or 7.05 and (c) preserve or renew all
of its registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
6.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
(b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
6.07 Maintenance of Insurance. Maintain with financially sound and
reputable insurance companies or through the Borrower's own program of
self-insurance, insurance with respect to its properties and business against
loss or damage of the kinds customarily insured
46
against by Persons engaged in the same or similar business, of such types and in
such amounts as are customarily carried under similar circumstances by such
other Persons.
6.08 COMPLIANCE WITH LAWS. Comply in all material respects with the
requirements of all Laws applicable to it or to its business or property, except
in such instances in which (a) such requirement is being contested in good faith
or a bona fide dispute exists with respect thereto or (b) the failure to comply
therewith could not be reasonably expected to have a Material Adverse Effect.
6.09 BOOKS AND RECORDS. (a) Maintain proper books of record and account,
in which full, true and correct entries in conformity with GAAP consistently
applied shall be made of all financial transactions and matters involving the
assets and business of the Borrower and its Subsidiaries, as the case may be,
and (b) maintain such books of record and account in material conformity with
all applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Borrower or its Subsidiaries, as the case may be.
6.10 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at the expense of the Borrower and at such reasonable times
during normal business hours and as often as may be reasonably desired, upon
reasonable advance notice to the Borrower; provided, however, that when an Event
of Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time during normal business
hours and without advance notice. Notwithstanding the foregoing, while no Event
of Default exists, neither the Borrower nor any of its Subsidiaries will be
required to disclose, permit the inspection, examination or making extracts of,
or discussion of, any document, information or other matter that (i) constitutes
non-financial trade secrets or non-financial proprietary information or (ii) in
respect to which disclosure to the Administrative Agent or any Lender (or
designated representative) is then prohibited by Law or any agreement binding on
the Borrower or any of its Subsidiaries that was not entered into by the
Borrower or any of its Subsidiaries for the purpose of concealing information
from the Administrative Agent and the Lenders or evading the provisions of this
Agreement.
6.11 COMPLIANCE WITH ERISA AND FOREIGN PLANS.
(a) Do, and cause each of its ERISA Affiliates to do, each of the
following: (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, except to the extent that the failure to do so
could not reasonably be expected to have a Material Adverse Effect; and (iii)
make all required contributions to any Plan subject to Section 412 of the Code.
(b) Comply, and cause each of its relevant Subsidiaries to comply, in
all material respects with all applicable Laws relating to the maintenance or
operation of each Foreign Plan, and maintain in full force and effect all
material registrations of any Foreign Plans.
47
6.12 USE OF PROCEEDS. Use the proceeds of the Borrowings (a) to
refinance the outstanding principal amount of the SCI Existing Indebtedness, (b)
to pay fees and expenses incurred in connection with this Agreement and the SCI
Merger and (c) for working capital and other general corporate purposes not in
contravention of any applicable Law or of any Loan Document.
6.13 CHANGE IN MATERIAL SUBSIDIARIES.
(a) If, at any time after the date of this Agreement, any Subsidiary of
the Borrower that is not a Guarantor under the Guaranty shall be an Eligible
Material Subsidiary, the Borrower promptly shall deliver, or cause to be
delivered, to the Administrative Agent, within 45 days of the date such
Subsidiary was acquired by the Borrower in the case of an acquired Subsidiary,
or within 60 days of the end of the then current fiscal quarter, in any other
case, (i) an accession agreement in the form of Annex 1 to the Guaranty,
appropriately completed and duly executed by such Subsidiary, and (ii) such
other instruments, agreements, certificates, opinions and documents as the
Administrative Agent may reasonably request to secure, maintain, protect and
evidence the obligations of such Subsidiary under the Guaranty.
(b) If, at any time after the date of this Agreement, any Subsidiary of
the Borrower that is a Guarantor under the Guaranty shall not be an Eligible
Material Subsidiary, the Administrative Agent shall release such Subsidiary from
its obligations under the Guaranty, subject to the completion by the Borrower
(and, if the Equity Securities of such Subsidiary are owned directly by another
Subsidiary of the Borrower, by such other Subsidiary) of such actions as may be
necessary to grant to the Collateral Agent, for the benefit of the Lenders, to
the extent provided in clause (c) below, a perfected first-priority security
interest in the Equity Securities of such Subsidiary.
(c) If, at any time after the date of this Agreement, any First Tier
Foreign Subsidiary of the Borrower shall be an Ineligible Material Subsidiary,
the Borrower shall deliver (or, if such Ineligible Material Subsidiary is a
direct Subsidiary of a Subsidiary of the Borrower, such parent Subsidiary shall
deliver), to the Administrative Agent, within 45 days of the date such
Subsidiary was acquired by the Borrower, in the case of an acquired Subsidiary,
or within 90 days of the end of the then current fiscal quarter, in any other
case, an executed Stock Pledge Agreement, together with such instruments,
agreements, certificates, opinions and documents (including Uniform Commercial
Code financing statements) as the Administrative Agent may reasonably request,
to grant, perfect, maintain, protect and evidence first-priority security
interests in favor of the Collateral Agent, for the benefit of the Lenders, as
security for the Obligations, in 65% of any and all Equity Securities of such
First Tier Foreign Subsidiary.
(d) If as a result of any transaction otherwise permitted hereunder, any
First Tier Foreign Subsidiary whose Equity Securities have been pledged in favor
of the Collateral Agent, for the benefit of the Lenders, as security for the
Obligations, at any time becomes a Subsidiary of another First Tier Foreign
Subsidiary (a "replacement First Tier Foreign Subsidiary"), then the Collateral
Agent, on behalf of the Lenders, shall release its security interest in the
pledged Equity Securities of such Subsidiary; provided, however, that the
Collateral Agent shall have no obligation to grant such a release unless the
direct owner of the replacement First Tier Foreign Subsidiary shall have
executed and delivered a Stock Pledge Agreement to the Administrative
48
Agent, together with such instruments, agreements, certificates, opinions and
documents (including Uniform Commercial Code financing statements) as the
Administrative Agent may reasonably request, to grant, perfect, maintain,
protect and evidence first-priority security interests in favor of the
Collateral Agent, for the benefit of the Lenders, as security for the
Obligations, in 65% of any and all Equity Securities of such Subsidiary.
(e) If, at any time after the date of this Agreement, any Ineligible
Material Subsidiary becomes an Eligible Material Subsidiary, upon the Borrower's
compliance with sub-section (a) above, the Collateral Agent shall release the
Equity Securities of such Subsidiary from any Stock Pledge Agreement previously
delivered with respect to such Subsidiary.
(f) The Borrower shall deliver, and shall cause its Material
Subsidiaries to deliver, to the Administrative Agent such other Stock Pledge
Agreements, supplements thereto, guaranties, guaranty supplements and other
instruments, agreements, certificates, opinions and documents (including Uniform
Commercial Code financing statements) as the Administrative Agent may reasonably
request to establish, maintain, protect and evidence the rights provided to the
Administrative Agent or Collateral Agent, as the case may be, for the benefit of
Lenders, pursuant to the Guaranty and the Stock Pledge Agreements. The Borrower
shall fully cooperate (and cause its Subsidiaries to fully cooperate) with the
Administrative Agent and Lenders and perform all additional acts reasonably
requested by the Administrative Agent to effect the purposes of this Section
6.13.
(g) As of the end of each fiscal quarter of each fiscal year of the
Borrower, the Borrower shall determine whether the sum of the book value of (x)
the Borrower's assets (excluding Intangible Assets and equity interests in
Subsidiaries) plus (y) the aggregate assets (excluding Intangible Assets) of all
Material Subsidiaries, without duplication, that have executed and delivered the
Guaranty or the Equity Securities of which are subject to a Stock Pledge
Agreement to the extent and in the manner set forth in this Section 6.13, in
each case on the last day of such fiscal quarter (the "Subject Assets") is equal
to or greater than 90% of the sum of the book value of (I) the Borrower's assets
(excluding Intangible Assets and equity interests in Subsidiaries) plus (II) the
aggregate assets (excluding Intangible Assets) of all Subsidiaries of the
Borrower, without duplication, on such date, as set forth or reflected in the
financial statements provided pursuant to Section 6.01(a) or (b), as applicable
(the "Total Assets"). In the event that the amount of Subject Assets is less
than 90% of the Total Assets, the Borrower shall take such actions in accordance
with subsection (h) as may be necessary to ensure that the amount of Subject
Assets is equal to or greater than 90% of the Total Assets (i) within 60 days of
such fiscal quarter end in the case of the designation of any Material
Subsidiary which is an Eligible Material Subsidiary and (ii) within 90 days of
such fiscal quarter end in the case of the designation of any Material
Subsidiary which is an Ineligible Material Subsidiary. For purposes of
determining compliance with this Section 6.13(g), the book value of assets of
any Subsidiaries (other than Securitization Subsidiaries) owned by First Tier
Foreign Subsidiaries (excluding Intangible Assets and amounts owing to such
Subsidiary by the Borrower or any of its Subsidiaries) will be taken into
account in measuring such compliance, provided that the requisite amount of
Equity Securities of such First Tier Foreign Subsidiaries is pledged in
accordance with the provisions of this Agreement.
49
(h) In order to comply with Section 6.13(g), the Borrower may elect to
designate any Non-Material Subsidiary as a Material Subsidiary and, provided
such Subsidiary complies with each of the provisions of this Section 6.13, the
assets of such Subsidiary shall be included in determining compliance with
subsection (g); provided that, from and after any such election such Subsidiary
shall be subject to all terms and provisions of this Agreement and the other
Loan Documents as if such Subsidiary were a Material Subsidiary.
(i) In the event that any Material Subsidiary shall become a
Non-Material Subsidiary then the Administrative Agent shall release such
Subsidiary from its obligations under the Guaranty or the Collateral Agent shall
release the Equity Securities of such Subsidiary from any Stock Pledge Agreement
relating thereto, as the case may be; provided that after giving effect to such
release the Borrower shall continue to remain in compliance with the provisions
of Section 6.13(g).
(j) Notwithstanding any other provision of this Agreement to the
contrary, nothing herein shall be deemed to require delivery of a Guaranty from
any Securitization Subsidiary or the pledge of any Equity Securities of any
Securitization Subsidiary.
6.14 OPINIONS OF COUNSEL CONCERNING FOREIGN SUBSIDIARIES; ADDITIONAL
ITEMS. Within 60 days after the Closing Date the Borrower shall deliver to the
Administrative Agent (a) such opinions of non-U.S. counsel to the Borrower or
its Subsidiaries addressed to the Administrative Agent and the Lenders regarding
any Foreign Subsidiary of the Borrower that (i) has entered into the Guaranty or
(ii) that has pledged Equity Securities, or the Equity Securities of which have
been pledged, pursuant to a Stock Pledge Agreement, with respect to compliance
with the laws of organization of any such Subsidiary and such other matters as
the Administrative Agent shall reasonably request, each in form and substance
satisfactory to the Administrative Agent, (b) such evidence of the security
interests in the Pledged Shares and the priority and perfection thereof, as the
Administrative Agent shall reasonably request, (c) such certificates of
resolutions or other action, incumbency certificates and/or other certificates
of Responsible Officers of each Loan Party that is a Foreign Subsidiary as the
Administrative Agent may require to establish the identities of and verify the
authority and capacity of each Responsible Officer thereof authorized to act as
a Responsible Officer in connection with this Agreement and the other Loan
Documents to which such Loan Party is a party, and (d) such evidence as the
Administrative Agent may reasonably require to verify the due organization or
formation, good standing and qualification to do business with respect to each
Loan Party that is a Foreign Subsidiary.
6.15 FURTHER ASSURANCES. Promptly upon request by the Administrative
Agent, the Borrower shall (and shall cause any of its Subsidiaries to) do,
execute, acknowledge, deliver, record, re-record, file, re-file, register and
re-register, any and all such further acts, conveyances, security agreements,
assignments, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and other
instruments the Administrative Agent or the Lenders, as the case may be, may
reasonably require from time to time in order (i) to carry out more effectively
the purposes of this Agreement or any other Loan Document, (ii) to subject to
the Liens created by any of the Collateral Documents any of the properties,
rights or interests covered by any of the Collateral Documents, (iii) to perfect
and maintain the validity, effectiveness and priority of any of the Collateral
Documents and the Liens
50
intended to be created thereby, and (iv) to better assure, convey, grant,
assign, transfer, preserve, protect and confirm to the Administrative Agent and
the Lenders the rights granted or now or hereafter intended to be granted to the
Lenders under any Loan Document or under any other document executed in
connection therewith.
6.16 HADCO SUBORDINATED NOTES. Within 55 days after the Closing Date the
Borrower shall (a) have completed the redemption of all subordinated notes
issued and outstanding under the Hadco Indenture and (b) shall deliver to the
Administrative Agent a certificate of a Responsible Officer certifying
compliance with the preceding clause (a) and certifying that no Indebtedness
remains outstanding or unpaid under the Hadco Indenture.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, or any Loan
or other Obligation shall remain unpaid or unsatisfied, the Borrower shall not,
nor shall it permit any Subsidiary to, directly or indirectly:
7.01 LIENS. Create, incur, assume or suffer to exist, any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
other than the following (collectively, "Permitted Liens"):
(a) Liens pursuant to any Loan Document or any Multi-Year Credit
Agreement Loan Document;
(b) Liens existing on the date hereof and listed in Section 7.01 of the
Disclosure Letter and any renewals or extensions thereof, provided that the
property covered thereby is not increased and any renewal or extension of the
obligations secured or benefited thereby is permitted by Section 7.03(b);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings, if adequate reserves with respect thereto
are maintained on the books of the applicable Person in accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's,
landlord's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of the applicable Person;
(e) pledges or deposits in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation, other than any Lien imposed by ERISA or any Foreign Plan;
(f) deposits to secure the performance of bids, trade contracts (other
than for borrowed money), contracts for the purchase of property, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
51
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from the
value of the property subject thereto or materially interfere with the ordinary
conduct of the business of the Borrower and its Subsidiaries taken as a whole;
(h) Liens securing judgments for the payment of money in an aggregate
amount not in excess of the Threshold Amount (except to the extent covered by
independent third-party insurance as to which the insurer has acknowledged in
writing its obligation to cover), unless any such judgment remains undischarged
for a period of more than 30 consecutive days during which execution is not
effectively stayed;
(i) Liens securing Indebtedness permitted under Section 7.03(e);
provided that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness (and accessions, additions and
attachments thereto, and the proceeds thereof) and (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition;
(j) the interest of a purchaser of Permitted Receivables acquired
pursuant to, or any Lien on the assets of a Securitization Subsidiary granted
pursuant to, one or more Permitted Securitizations;
(k) Liens on specific tangible assets (including real estate, but not
including inventory and other current assets) acquired in Permitted Acquisitions
after the date of this Agreement; provided, however, that (A) such Liens existed
at the time of the Permitted Acquisition and were not created in anticipation
thereof, (B) any such Lien does not by its terms cover any assets after the time
of the Permitted Acquisition which were not covered immediately prior thereto,
and (C) any such Lien does not by its terms secure any Indebtedness other than
Indebtedness existing immediately prior to the time of the Permitted
Acquisition;
(l) Liens in favor of the Borrower or any Material Subsidiary on all or
part of the assets of any Eligible Material Subsidiary of the Borrower securing
Indebtedness owing by any such Subsidiary of the Borrower to the Borrower or to
a Material Subsidiary permitted to be incurred under Section 7.03(j);
(m) any Liens securing Indebtedness permitted under Section 7.03(k);
(n) any Lien on cash collateral to collateralize any standby letter of
credit with a face amount of 286,000,000 Swedish Krona issued by Bank of America
for the account of the Borrower for the benefit of certain minority shareholders
of Sanmina Kista AB;
(o) Liens arising by virtue of any contractual, 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 (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Borrower or the relevant Subsidiary in excess of those set forth
by the regulations promulgated by the FRB, and (ii) such deposit account is not
intended by the Borrower or any of
52
its Subsidiaries to provide collateral to the depository institution with
respect to otherwise unrelated obligations of the Borrower or any such
Subsidiary to such depository institution;
(p) Liens consisting of pledges of cash collateral or government
securities to secure on a ▇▇▇▇-to-market basis Swap Contracts only; provided
that the aggregate value of such collateral so pledged by the Borrower and its
Subsidiaries in favor of any counterparty does not at any time exceed
$10,000,000 in the aggregate;
(q) Liens incurred in connection with sale-leaseback transactions
permitted under Section 7.05;
(r) Liens consisting of precautionary financing statements filed in
connection with operating leases and Liens granted to secure obligations with
respect to any Synthetic Lease Obligation;
(s) Leases or subleases and licenses or sublicenses granted to others in
the ordinary course of business which do not interfere in any material respect
with the business operations of the Borrower and its Subsidiaries taken as a
whole;
(t) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(u) Liens on insurance proceeds securing the payment of financed
insurance premiums;
(v) Liens on cash collateral securing letters of credit not issued
pursuant to the Multi-Year Credit Agreement in an aggregate face amount
outstanding at any time not to exceed $50,000,000 to the extent permitted under
Section 7.03(m);
(w) customary Liens granted in favor of a trustee to secure fees and
other amounts owing to such trustee under an indenture or other agreement
pursuant to which Indebtedness permitted by Section 7.03 is issued;
(x) Liens created in favor of a customer of the Borrower or any of its
Subsidiaries with respect to specific goods or work-in-process to secure
advances by the customer to the Borrower or such Subsidiary to purchase or cause
the manufacture of the goods or work-in-process securing the advances, if (A)
such Liens shall secure only the amount used to purchase or manufacture such
goods or work-in-process so purchased or manufactured, and (B) such Liens shall
be limited to the applicable goods or work-in-process; and
(y) other Liens on assets with an aggregate fair-market value not
exceeding $5,000,000 in total;
provided that, notwithstanding any of subsections (a) through (y) of this
Section 7.01, in no case shall the Borrower or any Subsidiary of the Borrower
create, incur, assume or suffer to exist any Lien upon (i) any Collateral or
upon any Equity Securities of any Material Subsidiary, except in accordance with
subsection (a) of this Section 7.01 or (ii) any accounts receivable or
inventory, except in accordance subsection (j) of this Section 7.01.
53
7.02 INVESTMENTS. Make any Investments, except:
(a) Investments other than those permitted by subsections (b) through
(m) that are existing on the date hereof and listed in Section 7.02 of the
Disclosure Letter;
(b) Investments held by the Borrower or any Subsidiary of the Borrower
in the form of cash equivalents or marketable securities, in each case in
accordance with the Borrower's investment policies in effect from time to time;
(c) advances to officers, directors and employees of the Borrower and
Subsidiaries for travel, entertainment, relocation and analogous ordinary
business purposes;
(d) Investments of the Borrower or any Eligible Material Subsidiary in
any Eligible Material Subsidiary or in the Borrower;
(e) Investments (i) of the Borrower or any Eligible Material Subsidiary
in any Ineligible Material Subsidiary or any Non-Material Subsidiary of the
Borrower or (ii) of any Ineligible Material Subsidiary or Non-Material
Subsidiary of the Borrower in the Borrower or another Subsidiary of the
Borrower; provided that in the case of any Investments permitted under clause
(i), (A) at the time of any such Investment, no Event of Default shall exist or
shall result from such Investment, and (B) the aggregate amount of such
Investments shall not exceed in any fiscal year 5% of the total tangible assets
of the Borrower and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP as of the last day of the immediately preceding fiscal
quarter;
(f) Investments consisting of extensions of credit in the nature of
accounts receivable, prepaid royalties, or notes receivable arising from the
sale or lease of goods or services in the ordinary course of business,
Investments received in settlement of delinquent obligations or disputes, and
Investments received in satisfaction or partial satisfaction thereof from
financially troubled account debtors to the extent reasonably necessary in order
to prevent or limit loss;
(g) Guaranty Obligations permitted by Section 7.03;
(h) Investments permitted by Section 7.04;
(i) additional Investments by the Borrower, excluding Acquisitions, in
Persons other than Subsidiaries, provided that (i) at the time of any such
Investment, no Event of Default shall exist or shall result from such
Investment, and (ii) the aggregate amount of such Investments shall not exceed
in any fiscal year 5% of the total tangible assets of the Borrower and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP as of
the last day of the immediately preceding fiscal quarter;
(j) Permitted Acquisitions;
(k) Investments constituting Swap Contracts or payments or advances
under Swap Contracts;
54
(l) Investments accepted in connection with Dispositions permitted by
Section 7.05; and
(m) Investments acquired by the Borrower or any of its Subsidiaries (i)
in exchange for any other Investment held by the Borrower or such Subsidiary in
connection with or as a result of a bankruptcy, workout, reorganization or
recapitalization of the issuer of such Investment or (ii) as a result of a
foreclosure by the Borrower or any of its Subsidiaries with respect to any
secured Investment or other transfer of title with respect to any secured
Investment in default.
7.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness and Guaranty Obligations under the Loan Documents or
the Multi-Year Credit Agreement Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed in Section
7.03 of the Disclosure Letter and any refinancings, refundings, renewals or
extensions thereof; provided that the amount of such Indebtedness is not
increased at the time of such refinancing, refunding, renewal or extension
except by an amount equal to a reasonable premium or other reasonable amount
paid, and fees and expenses reasonably incurred, in connection with such
refinancing and by an amount equal to any existing commitments unutilized
thereunder;
(c) Guaranty Obligations (i) of the Borrower in respect of Indebtedness
otherwise permitted hereunder of any Wholly-Owned Subsidiary or (ii) of any
Subsidiary in respect of senior Indebtedness otherwise permitted hereunder of
the Borrower or any Wholly-Owned Subsidiary;
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, provided that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person and not for purposes of speculation or taking a "market view;" (ii) such
Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party and (iii) at any time, the aggregate Swap Termination Value
which would be owed by the Borrower and its Subsidiaries in the event of a
Termination Event under all such Swap Contracts does not exceed $75,000,000;
(e) Indebtedness in respect of capital leases and purchase money
obligations for fixed or capital assets within the limitations set forth in
Section 7.01(i) and any refinancings, refundings, renewals or extensions
thereof; provided that the amount of such Indebtedness is not increased at the
time of such refinancing, refunding, renewal or extension except by an amount
equal to a reasonable premium or other reasonable amount paid, and fees and
expenses reasonably incurred, in connection with such refinancing and by an
amount equal to any existing commitments unutilized thereunder;
55
(f) Indebtedness incurred pursuant to Permitted Securitizations;
provided that at any time the aggregate amount of Indebtedness incurred pursuant
to Permitted Securitizations shall not exceed 30% of all accounts receivable of
the Borrower and its Subsidiaries on a consolidated basis;
(g) any other Indebtedness of the Borrower (other than in respect of
letters of credit) not secured by any Lien on any assets or property of the
Borrower or any of its Subsidiaries;
(h) Indebtedness of a Subsidiary acquired after the Closing Date and
Indebtedness of a Person merged or consolidated with or into the Borrower or a
Subsidiary of the Borrower after the Closing Date, which Indebtedness in each
case existed at the time of such acquisition, merger, consolidation or
conversion into a Subsidiary and was not created in contemplation of such event
and where such acquisition, merger or consolidation is permitted by this
Agreement and any Liens securing such Indebtedness shall be in compliance with
Section 7.01(k); provided that any such Indebtedness of an Eligible Material
Subsidiary must be on terms satisfactory to the Administrative Agent and
Required Lenders such that the Subsidiary Guaranty of such Subsidiary ranks
equal to or senior in right of payment to such Indebtedness; and provided
further that (i) any Indebtedness in an aggregate principal amount equaling or
exceeding $500,000,000 must be on terms satisfactory to the Administrative Agent
and Required Lenders and (ii) no Default or Event of Default shall result from
the assumption of such Indebtedness (regardless of principal amount);
(i) (i) Indebtedness of any Eligible Material Subsidiaries not secured
by any Lien on any assets or property of the Borrower or any of its
Subsidiaries, other than in respect of letters of credit and (ii) Indebtedness
of any Ineligible Material Subsidiary or Non-Material Subsidiary not secured by
any Lien on any assets or property of the Borrower or any of its Subsidiaries,
other than in respect of letters of credit; provided that in the case of clause
(ii) the aggregate principal amount of all such Indebtedness outstanding does
not exceed at any time an amount equal to 5% of the total tangible assets of the
Borrower and its Subsidiaries on a consolidated basis as determined in
accordance with GAAP as of the last day of the immediately preceding fiscal
quarter;
(j) (i) Indebtedness of any Eligible Material Subsidiary owing to the
Borrower or any other Eligible Material Subsidiary and (ii) (A) Indebtedness of
any Ineligible Material Subsidiary owing to the Borrower or any other Subsidiary
or (B) Indebtedness of any Non-Material Subsidiary owing to the Borrower or any
other Subsidiary; provided that in the case of clause (ii) the aggregate
principal amount of all such Indebtedness outstanding does not exceed at any
time an amount equal to 5% of the total tangible assets of the Borrower and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP as of
the last day of the immediately preceding fiscal quarter;
(k) other Indebtedness of the Borrower or any Subsidiary of the Borrower
to Persons other than Subsidiaries that is secured by a Lien on any assets or
property of the Borrower or any its Subsidiaries, provided that the aggregate
principal amount of all such secured Indebtedness (other than existing secured
Indebtedness described in Section 7.03(a)), does not exceed $50,000,000 at any
time outstanding;
56
(l) Indebtedness consisting of guarantees (and other credit support) of
the obligations of vendors and suppliers of the Borrower or its Subsidiaries in
respect of transactions entered into in the ordinary course of business;
provided that the aggregate principal amount of the Indebtedness in respect of
which such guarantees (and other credit support) are provided shall not exceed
at any time $10,000,000; and
(m) reimbursement obligations (whether matured or contingent) in respect
of letters of credit in an aggregate face amount not to exceed $100,000,000 at
any time.
7.04 FUNDAMENTAL CHANGES. Merge, consolidate with or into, or convey,
transfer, lease or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its assets (whether now
owned or hereafter acquired) to or in favor of any Person, except that, so long
as no Default or Event of Default exists or would result therefrom:
(a) any Subsidiary of the Borrower may merge with (i) the Borrower,
provided that the Borrower shall be the continuing or surviving Person, or (ii)
any one or more Subsidiaries of the Borrower, and provided further, however,
that when any Wholly-Owned Subsidiary of the Borrower is merging with another
Subsidiary of the Borrower, a Wholly-Owned Subsidiary of the Borrower shall be
the continuing or surviving Person, and when any Non-Material Subsidiary of the
Borrower is merging with a Material Subsidiary of the Borrower, a Material
Subsidiary of the Borrower shall be the continuing or surviving Person;
(b) any Subsidiary of the Borrower may sell all or substantially all of
its assets (upon voluntary liquidation or otherwise), to the Borrower or to
another Subsidiary of the Borrower; provided that the transferee of any such
assets in such a transaction shall be a Material Subsidiary that is a
Wholly-Owned Subsidiary of the Borrower;
(c) any Person may merge into or consolidate with the Borrower in a
transaction in which the Borrower is the surviving Person;
(d) the Borrower, SCI and Merger Sub may consummate the SCI Merger; and
(e) in connection with a Permitted Acquisition, any Person may merge
into or consolidate with (i) the Borrower, provided that the Borrower shall be
the continuing or surviving Person or (ii) any Subsidiary of the Borrower,
provided that if such Subsidiary is (a) a Wholly-Owned Subsidiary of the
Borrower, such Wholly-Owned Subsidiary shall be the continuing or surviving
Person or (b) a Material Subsidiary of the Borrower, such Material Subsidiary
shall be the continuing or surviving Person.
7.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned or
hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory and other property in the ordinary course
of business;
57
(c) Dispositions of equipment or real property other than in the
ordinary course of business to the extent that such property is exchanged for
credit against the purchase price of similar replacement property or (ii) the
proceeds of such Disposition are reasonably promptly applied to the purchase
price of such replacement property;
(d) Dispositions of property by (i) any Eligible Material Subsidiary to
the Borrower or to any other Eligible Material Subsidiary that is a Wholly-Owned
Subsidiary, (ii) by any Ineligible Material Subsidiary to the Borrower or any
other Material Subsidiary that is a Wholly-Owned Subsidiary; and (iii) by any
Non-Material Subsidiary to the Borrower or any Material Subsidiary that is a
Wholly-Owned Subsidiary;
(e) Dispositions by the Borrower and its Subsidiaries of property
pursuant to sale-leaseback transactions, provided that the aggregate book value
of all property so Disposed of in any fiscal year shall not exceed 5% of the
total tangible assets of the Borrower and its Subsidiaries on a consolidated
basis as determined in accordance with GAAP as of the last day of the
immediately preceding fiscal quarter;
(f) Dispositions permitted by Section 7.04;
(g) Non-exclusive licenses of IP Rights in the ordinary course of
business and substantially consistent with past practice for terms not exceeding
five years;
(h) a sale or transfer of Permitted Receivables pursuant to one or more
Permitted Securitizations, subject to the limitations set forth in Section
7.03(f) with respect to any such Permitted Securitizations; and
(i) Dispositions not otherwise permitted hereunder; provided that (i) at
the time of any Disposition, no Event of Default shall exist or shall result
from such Disposition, and (ii) the Net Disposition Proceeds from such
Dispositions by the Borrower and its Subsidiaries, together, shall not exceed in
any fiscal year 5% of the total tangible assets of the Borrower and its
Subsidiaries on a consolidated basis as determined in accordance with GAAP as of
the last day of the immediately preceding fiscal quarter;
provided, however, that any Disposition pursuant to subsections (a) through (i)
of this Section 7.05 shall be for fair market value; and provided further that,
notwithstanding any of subsections (a) through (i) of this Section 7.05, in no
case shall the Borrower or any Subsidiary of the Borrower be permitted to make
any Disposition of (A) any accounts receivable, except in accordance with
subsection (h) of this Section 7.05 or in accordance with Section 7.04, (B) any
Collateral or any Equity Securities of any Material Subsidiary, or (C) any
Material Subsidiary or all or substantially all of the assets of any Material
Subsidiary, except in accordance with subsection (h) of this Section 7.05.
7.06 LEASE OBLIGATIONS. Create or suffer to exist any obligations for
the payment of rent for any property under lease or agreement to lease, except:
(a) leases in existence on the date hereof and any renewal, extension or
refinancing thereof;
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(b) operating leases (other than those constituting Synthetic Lease
Obligations) entered into or assumed by the Borrower or any Subsidiary after the
date hereof;
(c) leases in connection with any sale-leaseback arrangement permitted
hereby; and
(d) capital leases and Synthetic Lease Obligations to the extent
permitted by Section 7.03.
7.07 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that:
(a) each Subsidiary may make Restricted Payments to the Borrower and to
Wholly-Owned Subsidiaries (and, in the case of a Restricted Payment by a
non-Wholly-Owned Subsidiary, to the Borrower and any Subsidiary and to each
other owner of capital stock of such Subsidiary on a pro rata basis based on
their relative ownership interests);
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock of such
Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise
acquire (i) shares of its common stock or warrants or options to acquire any
such shares with the proceeds received from the substantially concurrent issue
of new shares of its common stock or (ii) non-cash rights distributed in
connection with any stockholders' rights plan;
(d) at any time the Borrower's Debt Rating by (i) S&P is "BB-" or higher
and (ii) ▇▇▇▇▇'▇ is "Ba3" or higher, the Borrower may (A) declare or pay cash
dividends to its stockholders solely out of 50% of Consolidated Net Income of
the Borrower arising after the date of this Agreement and computed on a
cumulative consolidated basis with other such dividends by the Borrower since
that date and (B) purchase, redeem or otherwise acquire shares of its capital
stock or warrants, rights or options to acquire any such shares for cash;
provided, that, in each case immediately after giving effect to such proposed
action, no Default or Event of Default would exist; provided further, that in
the case of clause (B) the aggregate number of shares of a class of capital
stock, warrants, rights or options to acquire shares of capital stock of the
Borrower purchased, redeemed or otherwise acquired from and after the date of
this Agreement shall at no time exceed a number equal to 5% of the number of
outstanding shares of common stock of the Borrower on the Closing Date prior to
giving effect to the SCI Merger (adjusted to reflect subsequent stock dividends,
stock splits and recapitalizations);
(e) Any First Tier Foreign Subsidiary which is a special purpose
subsidiary formed in connection with a structured financing transaction, the
proceeds of which are loaned to an Eligible Material Subsidiary, may pay
dividends or other distributions or redeem its preferred stock in accordance
with the terms of such financing; and
(f) the Borrower and its Subsidiaries may make payments or distributions
to dissenting stockholders pursuant to applicable law pursuant to or in
connection with a Permitted Acquisition.
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7.08 ERISA; FOREIGN PLANS. (a) At any time engage in a transaction which
could be subject to Section 4069 or 4212(c) of ERISA, or permit any Plan to (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 4975 of
the Code); (ii) fail to comply with ERISA or any other applicable Laws; or (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), which, with respect to each event listed above, could be reasonably
expected to have a Material Adverse Effect;
(b) (i) At any time engage in any transaction prohibited by any Law
applicable to any Foreign Plan, (ii) fail to make full payment when due of all
amounts due as contributions to any Foreign Plan or (iii) otherwise fail to
comply with the requirements of any Law applicable to any Foreign Plan, which,
with respect to each event listed above, could be reasonably expected to have a
Material Adverse Effect.
7.09 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
7.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of the Borrower, whether or not in the ordinary course
of business, other than on fair and reasonable terms substantially as favorable
to the Borrower or any Subsidiary of the Borrower as would be obtainable by the
Borrower or such Subsidiary at the time in a comparable arm's length transaction
with a Person other than an Affiliate, provided that the foregoing restriction
shall not apply to transactions between or among the Borrower and any of its
Wholly Owned Subsidiaries or between and among any Wholly Owned Subsidiaries;
provided that the Borrower and its Subsidiaries may enter into transactions
permitted by Section 7.02(c).
7.11 BURDENSOME AGREEMENTS. Except to the extent included as of the
Closing Date in the provisions of Contractual Obligations relating to the
Indebtedness listed in Section 7.11 of the Disclosure Letter, enter into any
Contractual Obligation that limits the ability (a) of any Subsidiary of the
Borrower to make Restricted Payments to the Borrower or to otherwise transfer
property to the Borrower or (b) of the Borrower or any Subsidiary of the
Borrower to create, incur, assume or suffer to exist Liens on property of such
Person (such a Contractual Obligation a "negative pledge"); provided, however,
that this subsection shall not prohibit (i) any negative pledge or limitation on
the making of Restricted Payments set forth in the Collateral Documents or the
Multi-Year Credit Agreement Loan Documents or (ii) any negative pledge incurred
or provided in favor of any holder of Indebtedness permitted under Sections
7.03(e) or Section 7.03(f) or in favor of a Person who has been granted a Lien
permitted under Section 7.01(v) or Section 7.01(w), in each case solely to the
extent any such negative pledge relates to property financed by or the subject
of such Indebtedness or the property subject to such Lien, as the case may be.
7.12 USE OF PROCEEDS. Use the proceeds of any Borrowing, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose, in each
case in violation of, or for a purpose which violates, or would be inconsistent
with, Regulation T, U or X of the FRB.
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7.13 FINANCIAL COVENANTS.
(a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net
Worth as of the end of any fiscal quarter of the Borrower to be less than the
sum of (a) 80% of Consolidated Tangible Net Worth as of the fiscal quarter
ending December 31, 2001, (b) an amount equal to 50% of the Consolidated Net
Income earned in each fiscal quarter ending after December 31, 2001 (with no
deduction for a net loss in any such fiscal quarter), (c) an amount equal to 50%
of the aggregate increases in Shareholders' Equity of the Borrower and its
Subsidiaries after December 31, 2001 by reason of the conversion of debt
securities of the Borrower or its Subsidiaries into capital stock, and (d) an
amount equal to 50% of the Net Issuance Proceeds of any issuance of capital
stock of the Borrower or any of its Subsidiaries after December 31, 2001.
(b) Interest Coverage Ratio. Permit the Interest Coverage Ratio as of the
end of any fiscal quarter of the Company to be less than the following amounts:
Fiscal Quarter Ending Minimum Ratio
--------------------- -------------
September 30, 2001
December 31, 2001
March 31, 2002
June 30, 2002 2.00:1.00
September 30, 2002
December 31, 2002
March 31, 2003 2.50:1.00
June 30, 2003 2.75:1.00
September 30, 2003 3.00:1.00
and thereafter
(c) Leverage Ratio. Permit the Leverage Ratio as of the end of any fiscal
quarter of the Borrower to be greater than 0.50:1.00.
7.14 SCI MERGER DOCUMENTS. Alter, amend or otherwise change or supplement
any material provision of the SCI Merger Documents or waive any material
provision thereof.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event of
Default:
(a) Non-Payment. The Borrower fails to pay (i) when and as required to be
paid herein, any amount of principal of any Loan or (ii) within three days after
the same becomes due, any interest on any Loan or any facility, utilization or
other fee due hereunder, or (iii) within five days after the same becomes due,
any other amount payable hereunder or under any other Loan Document; or
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(b) Specific Covenants. The Borrower or any Loan Party fails to perform or
observe any term, covenant or agreement contained in any of Section 6.01, 6.02,
6.03, 6.05, 6.10, 6.12, 6.13, 6.14 or 6.16 or Article VII or in the Guaranty or
a Stock Pledge Agreement; or
(c) Other Defaults. Any Loan Party fails to perform or observe any other
covenant or agreement (not specified in subsection (a) or (b) above) contained
in any Loan Document on its part to be performed or observed and such failure
continues for 30 days after the earlier of (x) the date on which a Responsible
Officer knew or reasonably should have known of such failure and (y) the date
upon which written notice thereof is given to the Borrower by the Administrative
Agent or any Lender; or
(d) Representations and Warranties. Any representation or warranty made or
deemed made by the Borrower or any other Loan Party herein, in any other Loan
Document, or in any document delivered in connection herewith or therewith
proves to have been incorrect when made or deemed made; or
(e) Cross-Default. (i) The Borrower or any Subsidiary of the Borrower (A)
fails to make any payment when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) in respect of any Indebtedness
or Guaranty Obligation (other than Indebtedness hereunder and Indebtedness under
Swap Contracts) 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 $10,000,000,
or (B) fails to observe or perform any other agreement or condition relating to
any such Indebtedness or Guaranty Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event occurs,
in each case, the effect of which default or other event described in clause (A)
or (B) is to cause, or to permit the holder or holders of such Indebtedness or
the beneficiary or beneficiaries of such Guaranty Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to be demanded
or to become due or to be repurchased or redeemed (automatically or otherwise)
prior to its stated maturity, or such Guaranty Obligation to become payable or
cash collateral in respect thereof to be demanded; or (ii) there occurs under
any Swap Contract an Early Termination Date (as defined in such Swap Contract)
resulting from (A) any event of default under such Swap Contract as to which the
Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (B) any Termination Event (as so defined) under such Swap Contract
as to which the Borrower or any Subsidiary is an Affected Party (as so defined)
and, in either event, the Swap Termination Value owed by the Borrower or such
Subsidiary as a result thereof is greater than $10,000,000; or
(f) Insolvency Proceedings, Etc. Any Loan Party or any Subsidiary of the
Borrower other than a Foreign Non-Significant Subsidiary institutes or consents
to the institution of any proceeding under any Debtor Relief Law, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of such Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under any Debtor Relief Law
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relating to any such Person or to all or any part of its property is instituted
without the consent of such Person and continues undismissed or unstayed for 60
calendar days, or an order for relief is entered in any such proceeding; or
(g) Inability to Pay Debts; Attachment. (i) The Borrower or any Subsidiary
of the Borrower other than a Foreign Non-Significant Subsidiary becomes unable
or admits in writing its inability or fails generally to pay its debts as they
become due, or (ii) any writ or warrant of attachment or execution or similar
process is issued or levied against all or any material part of the property of
any such Person and is not released, vacated or fully bonded within 30 days
after its issue or levy; or
(h) Judgments. There is entered against the Borrower or any Subsidiary of
the Borrower other than a Foreign Non-Significant Subsidiary (i) a final
judgment or order for the payment of money in an aggregate amount exceeding the
Threshold Amount (to the extent not covered by independent third-party insurance
as to which the insurer does not dispute coverage), or (ii) any non-monetary
final judgment that has, or could reasonably be expected to have, a Material
Adverse Effect and, in either case, (A) enforcement proceedings are commenced by
any creditor upon such judgment or order, or (B) there is a period of 30
consecutive days during which a stay of enforcement of such judgment, by reason
of a pending appeal or otherwise, is not in effect; or
(i) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower or any Subsidiary of the Borrower under Title IV of
ERISA to the Pension Plan, Multiemployer Plan or the PBGC in an aggregate amount
in excess of the Threshold Amount, or (ii) the Borrower or any ERISA Affiliate
fails 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 the
Threshold Amount; or
(j) Collateral. Any defined "Event of Default" as defined in any
Collateral Document shall have occurred and is continuing; any provision of any
Collateral Document shall for any reason be revoked or invalidated, or otherwise
cease to be in full force and effect or the Borrower or any Subsidiary of the
Borrower or any other Person shall contest in any manner the validity or
enforceability thereof or deny that it has any further liability or obligation
thereunder, or any Collateral Document shall for any reason (other than pursuant
to the terms thereof) cease to create a valid security interest in the
Collateral purported to be covered thereby or such security interest shall for
any reason cease to be a perfected and first priority security interest; or
(k) Failure by any Guarantor to Perform Covenants; Invalidity of Guaranty.
Any Guarantor shall fail to perform or observe any term, covenant or agreement
contained in the Guaranty on its part to be performed or observed, or any
default shall occur under the Guaranty, and any such failure or default shall
continue after the applicable grace period, if any, specified in the Guaranty as
of the date of such failure, or any defined "Event of Default" as defined in the
Guaranty shall have occurred and is continuing; except as provided in Section
6.13, or the Guaranty shall for any reason be revoked or invalidated, or
otherwise cease to be in full force
63
and effect, or any Guarantor or any other Person shall contest in any manner the
validity or enforceability thereof or deny that it has any further liability or
obligation thereunder; or
(l) Invalidity of Loan Documents. Any other Loan Document or any provision
thereof, at any time after its execution and delivery and for any reason other
than the agreement of all the Lenders or satisfaction in full of all the
Obligations, ceases to be in full force and effect, or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in any
respect; or any Loan Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any other Loan Document; or
(m) Change of Control. There occurs any Change of Control.
8.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and is
continuing, the Administrative Agent shall, at the request of, or may, with the
consent of, the Required Lenders:
(a) declare the commitment of each Lender to make Loans to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower; and
(c) exercise on behalf of itself and the Lenders (or cause the Collateral
Agent to exercise) all rights and remedies available to it and the Lenders under
the Loan Documents or applicable law;
provided, however, that upon the occurrence of any event specified in subsection
(f) of Section 8.01, the obligation of each Lender to make Loans shall
automatically terminate, the unpaid principal amount of all outstanding Loans
and all interest and other amounts as aforesaid shall automatically become due
and payable without further act of the Administrative Agent or any Lender.
ARTICLE IX.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to Section 9.09) appoints,
designates and authorizes the Administrative Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to it
by the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere herein or in any other Loan Document, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent have or be deemed
to have any fiduciary relationship with any
64
Lender or participant, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities shall be read into this Agreement or any
other Loan Document or otherwise exist against the Administrative Agent. Without
limiting the generality of the foregoing sentence, the use of the term "agent"
herein and in the other Loan Documents with reference to the Administrative
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead, such
term is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.
(b) The Collateral Agent shall act on behalf of the Lenders and the
Administrative Agent with respect to the Collateral and the Collateral Documents
associated therewith; provided, however, that the Collateral Agent shall have
all of the benefits and immunities provided to the Administrative Agent in this
Article IX with respect to any acts taken or omissions suffered by the
Collateral Agent in connection with the Collateral and the Collateral Documents
as fully as if the term "Administrative Agent" as used in this Article IX
included the Collateral Agent with respect to such acts or omissions.
9.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
9.03 LIABILITY OF ADMINISTRATIVE AGENT. No Agent-Related Person shall (a)
be liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct
in connection with its duties expressly set forth herein), or (b) be responsible
in any manner to any Lender or participant for any recital, statement,
representation or warranty made by any Loan Party or any officer thereof,
contained herein or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or for the value of or title to any Collateral, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Lender or participant
to ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other Loan
Document, or to inspect the properties, books or records of any Loan Party or
any Affiliate thereof.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent
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or made by the proper Person or Persons, and upon advice and statements of legal
counsel (including counsel to any Loan Party), independent accountants and other
experts selected by the Administrative Agent. The Administrative Agent shall be
fully justified in failing or refusing to take any action under any Loan
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Lenders against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Agreement or any
other Loan Document in accordance with a request or consent of the Required
Lenders or all the Lenders, if required hereunder, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and participants. Where this Agreement expressly permits or prohibits an
action unless the Required Lenders otherwise determine, the Administrative Agent
shall, and in all other instances, the Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of the
Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
9.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and fees
required to be paid to the Administrative Agent for the account of the Lenders,
unless the Administrative Agent shall have received written notice from a Lender
or the Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default." The
Administrative Agent will notify the Lenders of its receipt of any such notice.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as may be directed by the Required Lenders in accordance with
Article VIII; provided, however, that unless and until the Administrative Agent
has received any such direction, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable or in the best
interest of the Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Administrative Agent
hereafter taken, including any consent to and acceptance of any assignment or
review of the affairs of any Loan Party or any Affiliate thereof, shall be
deemed to constitute any representation or warranty by any Agent-Related Person
to any Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents to
the Administrative Agent that it has, independently and without reliance upon
any Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their respective Subsidiaries, the
value of and title to any Collateral, and all applicable bank or other
regulatory Laws relating to the transactions
66
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Borrower and any other Loan Party. Each Lender also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Borrower and the other Loan
Parties. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent herein, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of any
of the Loan Parties or any of their respective Affiliates which may come into
the possession of any Agent-Related Person.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand each Agent-Related Person (to the extent not reimbursed by or on
behalf of any Loan Party and without limiting the obligation of any Loan Party
to do so), pro rata, and hold harmless each Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; provided, however,
that no Lender shall be liable for the payment to any Agent-Related Person of
any portion of such Indemnified Liabilities to the extent determined in a final,
nonappealable judgment by a court of competent jurisdiction to have been caused
primarily by such Person's own gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Required
Lenders shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse the Administrative Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs and costs and expenses
in connection with the use of IntraLinks, Inc. or other similar information
transmission systems in connection with this Agreement) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the
Administrative Agent is not reimbursed for such expenses by or on behalf of the
Borrower. The undertaking in this Section shall survive termination of the
Aggregate Commitments, the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with each of the Loan Parties and their respective Affiliates as though Bank of
America were not the Administrative Agent hereunder or the Collateral Agent and
without notice to or consent of the Lenders. The Lenders acknowledge that,
pursuant to such activities, Bank of America or its Affiliates may receive
information regarding any Loan Party or its Affiliates (including information
that may be subject to confidentiality obligations in favor of such Loan Party
or such Affiliate) and acknowledge that the Administrative Agent shall be under
no obligation to provide such information to them. With respect to its Loans,
Bank of America
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shall have the same rights and powers under this Agreement as any other Lender
and may exercise such rights and powers as though it were not the Administrative
Agent or the Collateral Agent, and the terms "Lender" and "Lenders" include Bank
of America in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may resign
as Administrative Agent upon 30 days' notice to the Lenders; provided that any
such resignation by Bank of America shall also constitute its resignation as
Collateral Agent. If the Administrative Agent resigns under this Agreement, the
Required Lenders shall appoint from among the Lenders a successor administrative
agent for the Lenders which successor administrative agent shall be consented to
by the Borrower at all times other than during the existence of an Event of
Default (which consent of the Borrower shall not be unreasonably withheld or
delayed). If no successor administrative agent is appointed prior to the
effective date of the resignation of the Administrative Agent, the
Administrative Agent may appoint, after consulting with the Lenders and the
Borrower, a successor administrative agent from among the Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, the
Person acting as such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and Collateral
Agent and the respective terms "Administrative Agent" and "Collateral Agent"
shall mean such successor administrative agent and collateral agent and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated; and the retiring Collateral Agent's rights, duties
and powers as such shall be terminated, without any other or further act or deed
on the part of such retiring Collateral Agent or any other Lender. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. Any such replacement and release of Bank of America
as the Collateral Agent under the Collateral Documents shall be effected
pursuant to documentation in form and substance satisfactory to Bank of America.
9.10 OTHER AGENTS; LEAD MANAGERS. None of the Lenders or other Persons
identified on the facing page or signature pages of this Agreement as a
"syndication agent," "documentation agent," "co-agent," "book manager," "lead
arranger," "co-arranger" or "lead manager" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Lenders as such. Without limiting the foregoing, none of
the Lenders or other Persons so identified shall have or be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of the Lenders or other Persons so identified
in deciding to enter into this Agreement or in taking or not taking action
hereunder.
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9.11 COLLATERAL MATTERS.
(a) The Administrative Agent and Collateral Agent each is authorized on
behalf of all the Lenders, without the necessity of any notice to or further
consent from the Lenders, from time to time to take any action with respect to
any Collateral or the Collateral Documents which may be necessary to perfect and
maintain perfected the security interest in and Liens upon the Collateral
granted pursuant to the Collateral Documents.
(b) The Lenders irrevocably authorize each of the Administrative Agent and
the Collateral Agent, at their option and in their discretion, to release any
Lien granted to or held by the Administrative Agent or the Collateral Agent, as
the case may be, upon any Collateral (i) upon termination of the Aggregate
Commitments and payment in full of all Loans and all other Obligations known to
the Administrative Agent and payable under this Agreement or any other Loan
Document; (ii) constituting property sold or to be sold or disposed of as part
of or in connection with any Disposition permitted hereunder; or (iii) if
approved, authorized or ratified in writing by the Required Lenders or all the
Lenders, as the case may be, as provided in Section 10.01. Upon request by the
Administrative Agent at any time, the Lenders will confirm in writing the
Administrative Agent's or the Collateral Agent's authority to release particular
types or items of Collateral pursuant to this subsection, provided that the
absence of any such confirmation for whatever reason shall not affect the
Administrative Agent's and the Collateral Agent's rights under this Section.
ARTICLE X.
MISCELLANEOUS
10.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no such amendment,
waiver or consent shall, unless in writing and signed by each of the Lenders
directly affected thereby and by the Borrower, and acknowledged by the
Administrative Agent, do any of the following:
(a) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to Section 8.02), except for any such increase
made in accordance with Section 2.12;
(b) postpone any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Lenders
(or any of them) hereunder or under any other Loan Document;
(c) reduce the principal of, or the rate of interest specified herein on,
any Loan or (subject to clause (iii) of the proviso below) any fees or other
amounts payable hereunder or under any other Loan Document, or change the manner
of computation of any financial covenant used in determining the Applicable Rate
that would result in a reduction of any interest rate on
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any Loan; provided, however, that only the consent of the Required Lenders shall
be necessary to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest at the Default Rate;
(d) change the percentage of the Aggregate Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Lenders or any of
them to take any action hereunder;
(e) change the Pro Rata Share or Voting Percentage of any Lender (except
for any such change resulting from Section 2.12);
(f) amend this Section, or Section 2.11, or any provision herein providing
for consent or other action by all the Lenders; or
(g) release all or substantially all of the Guarantors from the Guaranty
or release all or substantially all of the Collateral;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agent in addition to all Lenders, the
Required Lenders or each directly-affected Lender, as the case may be, affect
the rights or duties of the Administrative Agent under this Agreement or any
other Loan Document; (ii) no amendment, waiver or consent shall, unless in
writing and signed by the Collateral Agent in addition to all Lenders, the
Required Lenders or each directly-affected Lender, as the case may be, affect
the rights or duties of the Collateral Agent under this Agreement or any other
Loan Document and (iii) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, any Lender that has failed to
fund any portion of the Loans required to be funded by it hereunder or that has
a Voting Percentage deemed to be zero shall not have any right to approve or
disapprove any amendment, waiver or consent hereunder, except that the Pro Rata
Share of such Lender may not be increased (except for any such increase
resulting from Section 2.12) without the consent of such Lender.
10.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) General. Unless otherwise expressly provided herein, all notices and
other communications provided for hereunder shall be in writing (including by
facsimile transmission) and mailed, faxed or delivered, to the address,
facsimile number or (subject to subsection (c) below) electronic mail address
specified for notices on Schedule 10.02; or, in the case of the Borrower or the
Administrative Agent, to such other address as shall be designated by such party
in a notice to the other parties, and in the case of any other party, to such
other address as shall be designated by such party in a notice to the Borrower
or the Administrative Agent. All such notices and other communications shall be
deemed to be given or made upon the earlier to occur of (i) actual receipt by
the intended recipient and (ii) (A) if delivered by hand or by courier, when
signed for by the intended recipient; (B) if delivered by mail, four Business
Days after deposit in the mails, postage prepaid; (C) if delivered by facsimile,
when sent and receipt has been confirmed by telephone; and (D) if delivered by
electronic mail (which form of delivery is subject to the provisions of
subsection (c) below), when delivered; provided, however, that notices and other
communications to the Administrative Agent pursuant to Article II shall be in
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writing (which may be by facsimile) and shall not be effective until actually
received by such Person. Any notice or other communication permitted to be
given, made or confirmed by telephone hereunder shall be given, made or
confirmed by means of a telephone call to the intended recipient at the number
specified on Schedule 10.02, it being understood and agreed that a voicemail
message shall in no event be effective as a notice, communication or
confirmation hereunder.
(b) Effectiveness of Facsimile Documents and Signatures. Loan Documents
may be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as manually-signed originals and shall be binding on all Loan
Parties, the Administrative Agent and the Lenders. The Administrative Agent may
also require that any such documents and signatures be confirmed by a
manually-signed original thereof; provided, however, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) Limited Use of Electronic Mail. Electronic mail and internet and
intranet websites may be used only to distribute routine communications, subject
to the applicable provisions of Section 6.02, such as financial statements and
other information, and to distribute Loan Documents for execution by the parties
thereto, and may not be used for any other purpose.
(d) Reliance by Administrative Agent and Lenders. The Administrative Agent
and the Lenders shall be entitled to rely and act upon any notices (including
telephonic Notices) purportedly given by or on behalf of the Borrower even if
(i) such notices were not made in a manner specified herein, were incomplete or
were not preceded or followed by any other form of notice specified herein, or
(ii) the terms thereof, as understood by the recipient, varied from any
confirmation thereof. The Borrower shall indemnify each Agent-Related Person and
each Lender from all losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other communications with the
Administrative Agent may be recorded by the Administrative Agent, and each of
the parties hereto hereby consents to such recording.
10.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein or therein provided are cumulative and not
exclusive of any rights, remedies, powers and privileges provided by law.
10.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all reasonable costs and expenses
incurred in connection with the development, preparation, negotiation and
execution of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs (other than the
allocated cost of internal legal services and all disbursements of internal
counsel) and costs and expenses in connection with the
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use of IntraLinks, Inc. or other similar information transmission systems in
connection with this Agreement, and (b) to pay or reimburse the Administrative
Agent and each Lender for all costs and expenses incurred in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or the other Loan Documents (including all such costs and
expenses incurred during any "workout" or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law), including all Attorney Costs. The foregoing costs and
expenses shall include all search, filing, recording, title insurance and
appraisal charges and fees and taxes related thereto, and other out-of-pocket
expenses incurred by the Administrative Agent and the cost of independent public
accountants and other outside experts retained by the Administrative Agent or
any Lender. The agreements in this Section shall survive the termination of the
Aggregate Commitments and repayment of all other Obligations.
10.05 INDEMNIFICATION BY THE BORROWER. Whether or not the transactions
contemplated hereby are consummated, the Borrower agrees to indemnify, save and
hold harmless each Agent-Related Person, each Lender and their respective
Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "Indemnitees") from and against: (a) any and
all claims, demands, actions or causes of action that are asserted against any
Indemnitee by any Person relating directly or indirectly to a claim, demand,
action or cause of action that such Person asserts or may assert against any
Loan Party, any Affiliate of any Loan Party or any of their respective officers
or directors; (b) any and all claims, demands, actions or causes of action that
may at any time (including at any time following repayment of the Obligations
and the resignation or removal of the Administrative Agent or the replacement of
any Lender) be asserted or imposed against any Indemnitee, arising out of or
relating to, the Loan Documents, any predecessor loan documents, any Commitment,
the use or contemplated use of the proceeds of any Borrowing, or the
relationship of any Loan Party, the Administrative Agent, the Collateral Agent,
the Arranger and the Lenders under this Agreement or any other Loan Document or
the SCI Merger; (c) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action or
cause of action described in subsection (a) or (b) above; and (d) any and all
liabilities (including liabilities under indemnities), settlement costs or
expenses, losses, costs or expenses (including reasonable Attorney Costs) that
any Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing claim, demand,
action, cause of action or proceeding, in all cases, whether or not arising out
of the negligence of an Indemnitee, and whether or not an Indemnitee is a party
to such claim, demand, action, cause of action or proceeding (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that no Indemnitee shall
be entitled to indemnification for any claim to the extent that such claim is
determined in a final, nonappealable judgment by a court of competent
jurisdiction to have been caused primarily by such Indemnitee's own gross
negligence or willful misconduct. No Indemnitee shall be liable for any damages
arising from the use by others of any information or other materials obtained
through IntraLinks, Inc. or other similar information transmission systems in
connection with this Agreement. The agreements in this Section shall survive the
termination of the Aggregate Commitments and repayment of all other Obligations.
10.06 MARSHALLING; PAYMENTS SET ASIDE. Neither the Administrative Agent,
the Collateral Agent nor the Lenders shall be under any obligation to marshal
any assets in favor of
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the Borrower or any other Person or against or in payment of any or all of the
Obligations. To the extent that any payment by or on behalf of the Borrower is
made to the Administrative Agent or any Lender, or the Administrative Agent or
any Lender exercises its right of set-off, and such payment or the proceeds of
such set-off or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Administrative Agent or such Lender in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any proceeding under any Debtor Relief Law or otherwise, then
(a) to the extent of such recovery, the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Lender severally agrees to pay to the Administrative Agent upon demand its
applicable share of any amount so recovered from or repaid by the Administrative
Agent, plus interest thereon from the date of such demand to the date such
payment is made at a rate per annum equal to the Federal Funds Rate from time to
time in effect.
10.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Indemnitees and the Collateral Agent)
any legal or equitable right, remedy or claim under or by reason of this
Agreement.
(b) If the Administrative Agent, and so long as there is no Event of
Default or Default has occurred and is continuing, the Borrower, each consents
in writing (each such consent not to be unreasonably withheld or delayed), any
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it); provided that (i) except in
the case of an assignment of the entire remaining amount of the assigning
Lender's Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender or an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) of the assigning Lender subject
to each such assignment, determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent, shall
not be less than $5,000,000 (or such lesser amount as the Administrative Agent,
and, so long as no Event of Default or Default has occurred and is continuing,
the Borrower, each consents to in writing), (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loans or the
Commitment assigned, and (iii) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with
a processing and recordation fee of $3,500. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Acceptance,
the Eligible Assignee thereunder shall be a party hereto and, to the extent of
the
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interest assigned by such Assignment and Acceptance, have the rights and
obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 3.07,
10.04 and 10.05). Upon request, the Borrower (at its expense) shall execute and
deliver new or replacement Notes to the assigning Lender and the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an agent
of the Borrower, shall maintain at the Administrative Agent's Office a copy of
each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice.
(d) Any Lender may, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrower, the Administrative Agent and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
waiver or other modification that would (i) postpone any date upon which any
payment of money is scheduled to be paid to such Participant, (ii) release all
or substantially all of the Collateral, (iii) reduce the principal, interest,
fees or other amounts payable to such Participant, or (iv) release all or
substantially all of the Guarantors from the Guaranty. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of Sections 3.01, 3.04 and 3.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 10.09 as though it were a Lender, provided
that such Participant agrees to be subject to Section 2.11 as though it were a
Lender.
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(e) A Participant shall not be entitled to receive any greater payment
under Section 3.01 or 3.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 3.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 10.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in all
or any portion of its rights under this Agreement (including under its Notes, if
any) to secure obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release a Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) If the consent of the Borrower to an assignment or to an Eligible
Assignee is required hereunder (including a consent to an assignment which does
not meet the minimum assignment threshold specified in clause (i) of the proviso
to the first sentence of Section 10.07(b)), the Borrower shall be deemed to have
given its consent five Business Days after the date notice thereof has been
delivered by the assigning Lender (through the Administrative Agent) unless such
consent is expressly refused by the Borrower prior to such fifth Business Day.
(h) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural Person) approved by (i) the Administrative Agent, in the case of
any assignment of a Loan and (ii) unless (A) such Person is taking
delivery of an assignment in connection with physical settlement of a
credit derivatives transaction or (B) an Event of Default has occurred and
is continuing, the Borrower (each such approval referred to in clauses (i)
and (ii) not to be unreasonably withheld or delayed).
"Fund" means any Person (other than a natural Person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course
of its business.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
10.08 CONFIDENTIALITY. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent requested
by any regulatory authority;
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(c) to the extent required by applicable laws or regulations or by any subpoena
or similar legal process; (d) to any other party to this Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the consent of
the Borrower; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available to
the Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Borrowings. For the purposes of this
Section, "Information" means all information received from the Loan Parties
relating to the Loan Parties or their businesses, other than any such
information that is available to the Administrative Agent or any Lender on a
nonconfidential basis prior to disclosure by the Loan Parties; provided that, in
the case of information received from the Loan Parties after the date hereof,
such information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
10.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being
waived by the Borrower (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender, now or hereafter existing, irrespective of whether or not the
Administrative Agent or such Lender shall have made demand under this Agreement
or any other Loan Document and although such Obligations may be contingent or
unmatured or denominated in a currency different than that of the deposit
account. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such set-off and application made by such Lender;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
10.10 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not
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exceed the maximum rate of non-usurious interest permitted by applicable Law
(the "Maximum Rate"). If the Administrative Agent or any Lender shall receive
interest in an amount that exceeds the Maximum Rate, the excess interest shall
be applied to the principal of the Loans or, if it exceeds such unpaid
principal, refunded to the Borrower. In determining whether the interest
contracted for, charged, or received by the Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
Law, (a) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (b) exclude voluntary prepayments and the effects
thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations.
10.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.12 INTEGRATION. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Administrative Agent or the Lenders in any other Loan
Document shall not be deemed a conflict with this Agreement. Each Loan Document
was drafted with the joint participation of the respective parties thereto and
shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof.
10.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default or Event of Default at the time of any Borrowing, and shall continue
in full force and effect as long as any Loan or any other Obligation shall
remain unpaid or unsatisfied.
10.14 SEVERABILITY. Any provision of this Agreement and the other Loan
Documents to which the Borrower is a party that is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions thereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.15 TAX FORMS. (a) (a) Each Lender that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") shall
deliver to the Administrative Agent, prior to receipt of any payment subject to
withholding under the Code (or upon accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form W-8BEN or any
successor thereto (relating to such Person and entitling it to an
77
exemption from, or reduction of, withholding tax on all payments to be made to
such Person by the Borrower pursuant to this Agreement) or IRS Form W-8ECI or
any successor thereto (relating to all payments to be made to such Person by the
Borrower pursuant to this Agreement) or such other evidence satisfactory to the
Borrower and the Administrative Agent that such Person is entitled to an
exemption from, or reduction of, U.S. withholding tax. Thereafter and from time
to time, each such Person shall (i) promptly submit to the Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Borrower and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Person by the Borrower pursuant to this Agreement, (ii) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (iii) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Borrower make any deduction or withholding for taxes from amounts
payable to such Person. If such Person fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from any interest
payment to such Person an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction.
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all Obligations and the resignation or replacement of the
Administrative Agent.
10.16 REMOVAL AND REPLACEMENT OF LENDERS.
(a) Under any circumstances set forth herein providing that the Borrower
shall have the right to remove or replace a Lender as a party to this Agreement,
the Borrower may, upon notice to such Lender and the Administrative Agent, (i)
remove such Lender by terminating such Lender's Commitment or (ii) replace such
Lender by causing such Lender to assign its Commitment (without payment of any
assignment fee) pursuant to Section 10.07(b) to one or more other Lenders or
Eligible Assignees procured by the Borrower; provided, however, that if the
Borrower elects to exercise such right with respect to any Lender pursuant to
Section 3.06(b), it shall be obligated to remove or replace, as the case may be,
all Lenders that have made similar
78
requests for compensation pursuant to Section 3.01 or 3.04. The Borrower shall
(x) pay in full all principal, interest, fees and other amounts accrued or owing
to such Lender through the date of removal or replacement (including any amounts
payable pursuant to Section 3.05); provided that the making of such payment
shall not preclude any claim by such Lender for amounts which may become due to
it thereafter in accordance with the terms of the Loan Documents, and (y)
release such Lender from its obligations under the Loan Documents. Any Lender
being replaced shall execute and deliver an Assignment and Acceptance with
respect to such Lender's Commitment and outstanding Loans. The Administrative
Agent shall distribute an amended Schedule 2.01, which shall be deemed
incorporated into this Agreement, to reflect changes in the identities of the
Lenders and adjustments of their respective Commitments and/or Pro Rata Shares
resulting from any such removal or replacement.
(b) In order to make all the Lenders' interests in any outstanding Loans
ratable in accordance with any revised Pro Rata Shares after giving effect to
the removal or replacement of a Lender, the Borrower shall pay or prepay, if
necessary, on the effective date thereof, all outstanding Loans of all Lenders,
together with any amounts due under Section 3.05. The Borrower may then request
Loans from the Lenders in accordance with their revised Pro Rata Shares. The
Borrowers may net any payments required hereunder against any funds being
provided by any Lender or Eligible Assignee replacing a terminating Lender. The
effect for purposes of this Agreement shall be the same as if separate transfers
of funds had been made with respect thereto.
(c) This Section shall supersede any provision in Section 10.01 to the
contrary.
10.17 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE AGENT AND
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA
SITTING IN SAN FRANCISCO COUNTY OR OF THE UNITED STATES FOR THE NORTHERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE BORROWER 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 ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED THERETO. THE BORROWER WAIVES PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY THE LAW OF SUCH STATE.
79
10.18 WAIVER OF RIGHT TO TRIAL BY JURY. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.19 DESIGNATION AS SENIOR DEBT. All Obligations (a) shall be "Designated
Senior Indebtedness" for purposes of and as defined in that certain Indenture
dated as of May 5, 1999, between the Borrower and Norwest Bank Minnesota, N.A.,
as trustee, and all supplemental indentures thereto, (b) shall be "Designated
Senior Indebtedness" for purposes of and as defined in that certain Indenture
dated as of September 12, 2000, between the Borrower and ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as trustee, and all supplemental indentures
thereto, (c) shall be "Designated Senior Indebtedness" for purposes of and as
defined in that certain Indenture dated as of May 18, 1998, between Hadco
Corporation, as issuer, and Hadco Santa ▇▇▇▇▇, Inc., Hadco Phoenix, Inc., CCIR
of California Corp., and CCIR of Texas Corp., as guarantors, and State Street
Bank and Trust Company, as trustee, and all supplemental indentures thereto (the
"Hadco Indenture") and (d) shall be "Designated Senior Indebtedness" for
purposes of and as defined in that certain Indenture dated as of March 15, 2000,
between SCI Systems, Inc., as issuer, and Bank One Trust Company, National
Association as trustee, and all supplemental indentures thereto.
(remainder of page intentionally left blank)
80
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
SANMINA CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Chief Financial Officer
-----------------------------------
BANK OF AMERICA, N.A., as
Administrative Agent and Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
S-1
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
Title: Director
-----------------------------------
2
FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
3
CITICORP USA, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title: Director
-----------------------------------
4
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Managing Director
-----------------------------------
5
FLEET NATIONAL BANK
By: /s/ ▇▇▇▇ ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
------------------------------------
Title: Director
-----------------------------------
6
REGIONS BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Title: Senior Vice President
-----------------------------------
7
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ Flower
------------------------------------
Title: Assistant Vice President
-----------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Director
-----------------------------------
9
ROYAL BANK OF CANADA
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Title: Senior Manager
-----------------------------------
10
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title: Associate
-----------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
11
JPMORGAN CHASE BANK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
12
ABN AMRO BANK
By: /s/ ▇▇▇▇▇ ▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇
------------------------------------
Title: Vice President
-----------------------------------
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Assistant Vice President
-----------------------------------
13
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
LENDER COMMITMENT PRO RATA SHARE
------------------------------------ --------------- --------------
ABN AMRO Bank N.V. $25,000,000.00 10.000000000%
Bank of America, N.A. 32,222,222.22 12.888888889
Barclays Bank PLC 32,222,222.22 12.888888889
First Union National Bank 16,666,666.67 6.666666667
Citicorp USA, Inc. 32,222,222.22 12.888888889
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank 8,333,333.33 3.333333333
Fleet National Bank 16,666,666.67 6.666666667
Regions Bank 8,333,333.33 3.333333333
▇▇▇▇▇ Fargo Bank, 16,666,666.67 6.666666667
National Association
The Bank of Nova Scotia 25,000,000.00 10.▇▇▇▇▇▇▇▇▇
Royal Bank of Canada 11,666,666.67 4.666666667
Credit Suisse First Boston 8,333,333.33 3.333333333
JPMorgan Chase Bank 16,666,666.67 6.666666667
--------------- -------------
TOTAL $250,000,000.00 100.000000000%
Schedule 2.01
Page 1
SCHEDULE 10.02
EUROCURRENCY AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
SANMINA CORPORATION
AND DESIGNATED BORROWERS
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, EVP & CFO
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
OVERNIGHT COURIER DELIVERIES:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President & Treasurer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Internet website: ▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇
with a copy to:
▇▇▇▇▇▇ Sonsoni ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Schedule 10.02
Page 1
BANK OF AMERICA, N.A.
Administrative Agent's Office and Bank of America's Lending Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
Credit Services - Agency
Mail Code: CA4-706-05-09
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, AAO
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Ref: Sanmina Corporation (364-Day Credit Agreement)
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
Mail Code: CA5-701-05-19
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
with a copy to:
Bank of America, N.A.
Portfolio Management -- Technology
Mail Code: CA5-705-12-14
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Managing Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Schedule 10.02
Page 2
BARCLAYS BANK PLC
Requests for Credit Extensions:
Barclays Bank PLC, New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
Barclays Bank PLC, New York Branch
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ Card
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇.▇▇▇▇@▇▇▇▇▇▇.▇▇▇
With a copy to:
Barclays Bank PLC, New York Branch
c/o Barclays Capital, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
Schedule 10.02
Page 3
ABN AMRO BANK
Requests for Credit Extensions:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Nic ▇▇▇▇, Credit Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Loan Administration
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Schedule 10.02
Page 4
CITICORP USA, INC.
Requests for Credit Extensions:
CitiCorp USA, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇, Director
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
Citicorp USA Inc.
One Sansome Street
25th Floor - GRB Technology Group
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇.▇▇▇@▇▇▇▇.▇▇▇
FIRST UNION NATIONAL BANK
Requests for Credit Extensions:
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Managing Director & Senior Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (5-Year Credit Agreement)
Ref: Sanmina Corporation (5-Year Credit Agreement)
Schedule 10.02
Page 5
Notices (other than Requests for Credit Extensions):
First Union National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Loan Portfolio Analyst
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 704-383-7999
Electronic mail: ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ BANK
Requests for Credit Extensions:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
1221 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Schedule 10.02
Page 6
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Bank
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Managing Director
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
FLEET NATIONAL BANK
Requests for Credit Extensions:
Fleet National Bank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
Mail Stop CAFM55001A
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇_▇▇▇▇@▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
Fleet National Bank
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Mail Stop MADE1009H
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Loan Administrator
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇_▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Schedule 10.02
Page 7
REGIONSBANK
Requests for Credit Extensions:
RegionsBank
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Senior Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
RegionsBank
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
With a copy to:
RegionsBank
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Vice President - Natl. Div.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Schedule 10.02
Page 8
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
Requests for Credit Extensions:
▇▇▇▇▇ Fargo Bank, NA
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
10th Floor
MAC #A0112-101
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
▇▇▇▇▇ Fargo Bank, NA
▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ # ▇▇▇▇▇-▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇
THE BANK OF NOVA SCOTIA
Requests for Credit Extensions:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇, Loan Operations Officer
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Schedule 10.02
Page 9
Notices (other than Requests for Credit Extensions):
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Director
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
ROYAL BANK OF CANADA
Requests for Credit Extensions:
Royal Bank of Canada
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇. - Comm. & Tech.
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Senior Manager
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
Royal Bank of Canada
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Ranslay Solomonsz, Loans Administration Manager
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇▇
Schedule 10.02
Page 10
CREDIT SUISSE FIRST BOSTON
Requests for Credit Extensions:
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Notices (other than Requests for Credit Extensions):
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇.▇▇▇
JPMORGAN CHASE BANK
Requests for Credit Extensions:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Ref: Sanmina Corporation (364-Day Credit Agreement)
Schedule 10.02
Page 11
Notices (other than Requests for Credit Extensions):
JPMorgan Chase Bank
1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Electronic mail: ▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Schedule 10.02
Page 12
EXHIBIT A
FORM OF NOTICE
DATE: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day), dated as of
December 6, 2001 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Sanmina Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned hereby requests (select one):
[ ] A Borrowing of Loans [ ] A conversion or continuation of Loans
1. On _____________________ (a Business Day).
2. In the amount of $___________________.
3. Comprised of ____________________________. [Type of Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of _______ months.
The Borrowing requested herein complies with the proviso to the first
sentence of Section 2.01 of the Agreement. Other than in connection with a
conversion or continuation of Loans, the Borrower hereby certifies that the
following statements are and will be true and correct on the date of the
Borrowings requested above, both before and after giving effect to the
Borrowings requested above:
(a) the representations and warranties made by the Borrower in the
Agreement, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection therewith, are and
will be true and correct on and as of the date of the Borrowings requested
above, except to the extent that such representations and warranties
specifically refer to any earlier date, in which case they shall be true and
correct as of such earlier date, and except that this subsection (a) shall be
deemed instead to refer to the last day of the most recent fiscal quarter and
year for which financial statements have been delivered in respect of the
representations and warranties made in Sections 5.05(a) and (b), respectively;
and
A-1
(b) no Default or Event of Default shall exist, or would result from
the Borrowing requested hereby.
SANMINA CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
A-2
EXHIBIT B
FORM OF NOTE
$_______________________ _________________, 200_
FOR VALUE RECEIVED, the undersigned (the "Borrower") hereby promises to
pay to the order of _____________________________ (the "Lender") on the Maturity
Date (as defined in the Credit Agreement referred to below) the principal amount
of __________________Dollars ($____________), or such lesser principal amount of
Loans (as defined in such Credit Agreement) due and payable by the Borrower to
the Lender on the Maturity Date under that certain Credit Agreement (364-Day)
dated as of December 6, 2001 (as amended, restated, extended, supplemented or
otherwise modified in writing from time to time, the "Agreement", the terms
defined therein being used herein as therein defined), among the Borrower, the
Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent.
The Borrower promises to pay interest on the unpaid principal amount of
each Loan from the date of such Loan until such principal amount is paid in
full, at such interest rates, and at such times as are specified in the
Agreement. All payments of principal and interest shall be made to the
Administrative Agent for the account of the Lender in Dollars and in immediately
available funds at the Administrative Agent's Office. If any amount is not paid
in full when due hereunder, such unpaid amount shall bear interest, to be paid
upon demand, from the due date thereof until the date of actual payment (and
before as well as after judgment) computed at the per annum rate set forth in
the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and is subject to prepayment in whole or in part as
provided therein. This Note is also entitled to the benefits of the Guaranty and
is secured by the Collateral. Upon the occurrence and during the continuance of
one or more of the Events of Default specified in the Agreement, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable all as provided in the Agreement. Loans made by the
Lender shall be evidenced by one or more loan accounts or records maintained by
the Lender in the ordinary course of business. The Lender may also attach
schedules to this Note and endorse thereon the date, amount and maturity of its
Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
B-1
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF CALIFORNIA.
SANMINA CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
B-2
LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OUTSTANDING
TYPE OF AMOUNT OF END OF OR INTEREST PRINCIPAL
LOAN LOAN INTEREST PAID THIS BALANCE THIS NOTATION
DATE MADE MADE PERIOD DATE DATE MADE BY
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B-3
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____________, ____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (364-Day), dated as
of December 6, 2001 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Sanmina Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.
The undersigned Responsible Officer hereby certifies as of the date
hereof that he/she is the ________________________________________________ of
the Borrower, and that, as such, he/she is authorized to execute and deliver
this Certificate to the Administrative Agent on the behalf of the Borrower, and
that:
[Use following for fiscal YEAR-END financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
the Borrower ended as of the above date, together with the report and opinion of
an independent certified public accountant required by such section.
[Use following for fiscal QUARTER-END financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
required by Section 6.01(b) of the Agreement for the fiscal quarter of the
Borrower ended as of the above date. Such financial statements fairly present in
all material respects the financial condition, results of operations and cash
flows of the Borrower and its Subsidiaries in accordance with GAAP as at such
date and for such period, subject only to normal year-end audit adjustments and
the absence of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his/her supervision, a
detailed review of the transactions and condition (financial or otherwise) of
the Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
C-1
[select one:]
[to the best knowledge of the undersigned, after due inquiry, no Default
or Event of Default exists as of the date hereof]
--or--
[the following covenants or conditions have not been performed or
observed and the following is a list of each such Default or Event of Default,
its nature and status and the action that the Borrower proposes to take with
respect thereto:]
4. The financial covenant analyses and information set forth on Schedule
2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
_________________, _______.
SANMINA CORPORATION
By:___________________________________
Name:_________________________________
Title:________________________________
C-2
For the Quarter/Year ended ___________________("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 7.13(a) -- CONSOLIDATED TANGIBLE NET WORTH.
A. Consolidated Tangible Net Worth at Statement Date:
1. Shareholders' Equity: $______________
2. Intangible Assets: $______________
3. Consolidated Tangible Net Worth (Line I.A.1 less Line
I.A.2): $______________
B. Initial required amount (80% of Consolidated Tangible Net Worth
as of the fiscal quarter ending
December 31, 2001): $______________
C. 50% of Consolidated Net Income for each fiscal quarter ending
after December 31, 2001 (no reduction
for losses): $______________
D. 50% of increases in Shareholders' Equity after December 31, 2001
from conversion of debt securities: $______________
E. 50% of Net Issuance Proceeds of any issuance of capital stock of
the Borrower or any of its Subsidiaries after
December 31, 2001: $______________
F. Minimum required Consolidated Tangible Net Worth (Lines I.B +
I.C + I.D + I.E): $______________
G. Excess (deficit) for covenant compliance
(Line I.A.3 -- I.F): $______________
II. SECTION 7.13(b) -- INTEREST COVERAGE RATIO.
A. Consolidated EBIT for four consecutive fiscal quarters ending on
above date ("Subject Period"):
1. Consolidated Net Income for Subject
Period: $______________
C-3
2. Consolidated Interest Charges for Subject
Period: $______________
3. The amount of taxes, based on or measured by income, and
or included in the determination of Consolidated Net
Income. $______________
4. Cash and noncash charges permitted under definition of
Consolidated EBIT[*]: $______________
5. Consolidated EBIT (Lines II.A.1 + II.A.2 + II.A.3 +
II.A.4): $______________
B. Consolidated Cash Interest Charges for Subject
Period: $______________
C. Interest Coverage Ratio ((Line II.A.5) /
(Line II.B)): ________to 1.00
Minimum required (see Section 7.13(b)): _______ to 1.00
III. SECTION 7.13(c) -- LEVERAGE RATIO.
A. Consolidated Funded Indebtedness at Statement Date
1. Consolidated total Indebtedness: $______________
2. Amount of Line III.A.1 consisting of Indebtedness
described in clauses (b) and (c) of the definition of
Indebtedness: $______________
3. Line III.A.1 -- Line III.A.2: $______________
B. Consolidated Total Capitalization at Statement
Date: $______________
C. Leverage Ratio (Line III.A.3 /
Line III.B): _______ to 1.00
Maximum permitted: 0.50 to 1.00
--------------
* [With respect to any cash or non-cash charge attach a worksheet setting
forth in reasonable detail the nature of such charge.]
C-4
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Credit Agreement (364-Day), dated as
of December 6, 2001 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "Agreement;" the terms defined
therein being used herein as therein defined), among Sanmina Corporation, a
Delaware corporation (the "Borrower"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent.
The assignor identified on the signature page hereto (the "Assignor")
and the assignee identified on the signature page hereto (the "Assignee") agree
as follows:
1. (a) Subject to paragraph 11, effective as of the date specified on
Schedule 1 hereto (the "Effective Date"), the Assignor hereby irrevocably sells
and assigns to the Assignee without recourse to the Assignor, and the Assignee
hereby irrevocably purchases and assumes from the Assignor without recourse to
the Assignor, the interest described on Schedule 1 hereto (the "Assigned
Interest") in and to the Assignor's rights and obligations under the Agreement.
(b) From and after the Effective Date, (i) the Assignee shall be a party
under the Agreement and will have all the rights and obligations of a Lender for
all purposes under the Loan Documents to the extent of the Assigned Interest and
be bound by the provisions thereof, and (ii) the Assignor shall relinquish its
rights and be released from its obligations under the Agreement to the extent of
the Assigned Interest. The Assignor or the Assignee, as agreed by the Assignor
and the Assignee, shall deliver, in immediately available funds, any applicable
assignment fee required under Section 10.07(b) of the Agreement.
2. On the Effective Date, the Assignee shall pay to the Assignor, in
immediately available funds, an amount equal to the purchase price of the
Assigned Interest as agreed by the Assignor and the Assignee.
3. From and after the Effective Date, the Administrative Agent shall
make all payments under the Agreement and the Notes, if any, in respect of the
Assigned Interest (including all payments of principal, interest and fees with
respect thereto) to the Assignee. The Assignor and the Assignee shall make all
appropriate adjustments in payments under the Agreement and such Notes, if any,
for periods prior to the Effective Date directly between themselves.
4. The Assignor represents and warrants to the Assignee that:
(a) The Assignor is the legal and beneficial owner of the
Assigned Interest, and the Assigned Interest is free and clear of any
adverse claim;
(b) the Assigned Interest listed on Schedule 1 accurately and
completely sets forth the Outstanding Amount of all Loans relating to
the Assigned Interest as of the Effective Date;
D-1
(c) it has the power and authority and the legal right to make,
deliver and perform, and has taken all necessary action, to authorize
the execution, delivery and performance of this Assignment and
Acceptance, and any and all other documents delivered by it in
connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or
therewith; and
(d) this Assignment and Acceptance constitutes the legal, valid
and binding obligation of the Assignor.
The Assignor makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any of
its Affiliates or the performance by the Borrower or any of its Affiliates of
their respective obligations under the Loan Documents, and assumes no
responsibility with respect to any statements, warranties or representations
made under or in connection with any Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of any Loan Document
other than as expressly set forth above.
5. The Assignee represents and warrants to the Assignor and the
Administrative Agent that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this Assignment and
Acceptance, and any and all other documents delivered by it in
connection herewith and to fulfill its obligations under, and to
consummate the transactions contemplated by, this Assignment and
Acceptance and the Loan Documents, and no consent or authorization of,
filing with, or other act by or in respect of any Governmental
Authority, is required in connection in connection herewith or
therewith;
(c) this Assignment and Acceptance constitutes the legal, valid
and binding obligation of the Assignee;
(d) under applicable Laws no tax will be required to be withheld
by the Administrative Agent or the Borrower with respect to any payments
to be made to the Assignee hereunder or under any Loan Document, and
unless otherwise indicated in the space opposite the Assignee's
signature below, no tax forms described in Section 10.15 of the
Agreement are required to be delivered by the Assignee; and
(e) the Assignee has received a copy of the Agreement, together
with copies of the most recent financial statements of the Borrower
delivered pursuant thereto, and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance. The Assignee
D-2
has independently and without reliance upon the Assignor or the
Administrative Agent and based on such information as the Assignee has
deemed appropriate, made its own credit analysis and decision to enter
into this Assignment and Acceptance. The Assignee will, independently
and without reliance upon the Administrative Agent or any Lender, and
based upon such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not
taking action under the Agreement.
6. The Assignee appoints and authorizes the Administrative Agent to take
such action as agent on its behalf and to exercise such powers and discretion
under the Agreement, the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
incidental thereto.
7. If either the Assignee or the Assignor desires a Note to evidence its
Loans, it shall request the Administrative Agent to procure a Note from the
Borrower.
8. The Assignor and the Assignee agree to execute and deliver such other
instruments, and take such other action, as either party may reasonably request
in connection with the transactions contemplated by this Assignment and
Acceptance.
9. This Assignment and Acceptance shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns; provided,
however, that the Assignee shall not assign its rights or obligations hereunder
without the prior written consent of the Assignor and any purported assignment,
absent such consent, shall be void.
10. This Assignment and Acceptance may be executed by facsimile
signatures with the same force and effect as if manually signed and may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. This
Assignment and Acceptance shall be governed by and construed in accordance with
the laws of the state specified in the Section of the Agreement entitled
"Governing Law."
11. The effectiveness of the assignment described herein is subject to:
(a) if such consent is required by the Agreement, receipt by the
Assignor and the Assignee of the consent of the Administrative Agent and the
Borrower to the assignment described herein. By delivering a duly executed and
delivered copy of this Assignment and Acceptance to the Administrative Agent,
the Assignor and the Assignee hereby request any such required consent and
request that the Administrative Agent register the Assignee as a Lender under
the Agreement effective as of the Effective Date; and
(b) receipt by the Administrative Agent of (or other arrangements
acceptable to the Administrative Agent with respect to) any applicable
assignment fee referred to in Section 10.07(b) of the Agreement and any tax
forms required by Section 10.15 of the Agreement.
D-3
By signing below, the Administrative Agent agrees to register the
Assignee as a Lender under the Agreement, effective as of the Effective Date
with respect to the Assigned Interest, and will adjust the registered Pro Rata
Share of the Assignor under the Agreement to reflect the assignment of the
Assigned Interest.
12. Attached hereto as Schedule 2 is all contact, address, account and
other administrative information relating to the Assignee.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers.
Assignor:
[Name of Assignor]
By: _________________________________
Name: _______________________________
Title: ______________________________
[] Tax forms required by Assignee:
Section 10.15 of the Agreement
included [Name of Assignee]
By: _________________________________
Name: _______________________________
Title: ______________________________
(Signatures continue)
D-4
In accordance with and subject to Section 10.07 of the Credit Agreement,
the undersigned consent to the foregoing assignment as of the Effective Date:
[SANMINA CORPORATION
By: _________________________________
Name: _______________________________
Title: ______________________________]
BANK OF AMERICA, N.A.,
as Administrative Agent
By:________________________________
Title:
D-5
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
THE ASSIGNED INTEREST
Effective Date: ______________________
Type and amount of outstanding
Assigned Commitment Obligations assigned Assigned Pro Rata Share
----------------------------------- ----------------------------------- ---------------------------------------
$_____________ [type] $___________________ ___________________________%
Schedule 1-1
SCHEDULE 2 TO ASSIGNMENT AND ACCEPTANCE
ADMINISTRATIVE DETAILS
(Assignee to list names of credit contacts, addresses, phone and facsimile
numbers, electronic mail addresses and account and payment information)
Schedule 2-1
EXHIBIT E
FORM OF GUARANTY
[See attachment hereto.]
E-1
EXHIBIT F
FORM OF STOCK PLEDGE AGREEMENT
[See attachment hereto.]
F-1
EXHIBIT G
FORM OF OPINION OF U.S. COUNSEL
[See attachment hereto.]
G-1
EXHIBIT H
JOINDER AGREEMENT
Reference is made to that certain Credit Agreement (364-Day), dated as
of December 6, 2001 (the "Credit Agreement"), among Sanmina Corporation. (the
"Borrower"), the Lenders from time to time party thereto and Bank of America,
N.A., as Administrative Agent. Capitalized terms used but not otherwise defined
herein shall have the respective meanings given to such terms in the Credit
Agreement.
The Borrower has requested that the Aggregate Commitments under the
Credit Agreement be increased from $_____________ to $________________ in
accordance with the provisions set forth in Section 2.12 of the Credit
Agreement.
To achieve the full amount of such requested increase, the Borrower, in
accordance with Section 2.12 of the Credit Agreement, has invited
___________________ (the "New Lender") to become a Lender under the Credit
Agreement, and the New Lender has agreed to become a Lender under the Credit
Agreement pursuant to this Joinder Agreement (this "Agreement").
Accordingly, the New Lender represents, warrants and agrees as follows:
1. From and after the date of satisfaction of the conditions set
forth in Section 10 of this Agreement (the "Effective Date"), the New Lender
shall be a Lender under the Credit Agreement, and the New Lender agrees to
perform all of the obligations of a Lender under, and to be bound in all
respects by the terms of, the Credit Agreement to the same extent and with the
same force and effect as if the New Lender were an original signatory thereto.
2. As of the Effective Date, the Commitment of the New Lender
under the Credit Agreement shall be $______________.
3. The New Lender hereby confirms its acceptance of, and consents
to, all representations and warranties, covenants, conditions, and other terms
and provisions of the Credit Agreement, and to the terms and provisions
contained in any other Loan Documents to which the Lenders, the Collateral Agent
or the Administrative Agent are party.
4. The New Lender represents and warrants to the Administrative
Agent that:
(a) it is an Eligible Assignee;
(b) it has the full power and authority and the legal right to
make, deliver and perform, and has taken all necessary action, to
authorize the execution, delivery and performance of this Agreement, and
any and all other documents delivered by it in connection herewith and
to fulfill its obligations under, and to consummate the transactions
contemplated by, this Agreement and the Loan Documents, and no consent
or authorization of, filing with, or other act by or in respect of any
Governmental Authority, is required in connection herewith or therewith;
H-1
(c) this Agreement constitutes the legal and binding obligation
of the New Lender;
(d) under applicable Laws no tax will be required to be withheld
by the Administrative Agent or the Borrower with respect to any payments
to be made to the New Lender hereunder or under any Loan Document, and
unless otherwise indicated in the space opposite the New Lender's
signature below, no tax forms described in Section 10.15(a) of the
Credit Agreement are required to be delivered by the New Lender; and
(e) the New Lender has received a copy of the Credit Agreement,
together with copies of the most recent financial statements of the
Borrower delivered pursuant thereto, and such other documents and
information as it has deemed appropriate to make its own credit analysis
and decision to enter into this Agreement. The New Lender has
independently and without reliance upon the Borrower, the Administrative
Agent, the Collateral Agent or any Lender, and based upon such
information as the New Lender has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. The New
Lender will, independently and without reliance upon the Borrower, the
Administrative Agent, the Collateral Agent or any Lender, and based upon
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action
under the Credit Agreement.
5. The New Lender hereby appoints and authorizes each of the
Administrative Agent and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers and discretion under the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto as are delegated to the Administrative
Agent or the Collateral Agent by the terms thereof, together with such powers as
are incidental thereto.
6. If the New Lender desires Notes to evidence the Loans it may make to
the Borrower from time to time under the Credit Agreement, it shall request the
Administrative Agent to procure Notes from the Borrower.
7. The New Lender hereby agrees to execute and deliver such other
instruments, and take such other action, as the Administrative Agent may
reasonably request in connection with the transactions contemplated by this
Agreement.
8. This Agreement shall be binding upon the New Lender and shall inure
to the benefit of the Administrative Agent and the Borrower.
9. This Agreement may be executed by facsimile signatures with the same
force and effect as if manually signed and may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10. The effectiveness of this Agreement is subject to the following
conditions:
H-2
(a) the Administrative Agent shall have received executed
counterparts hereto, in sufficient number for distribution to the
Administrative Agent, the Borrower and the New Lender;
(b) the Administrative Agent shall have received any tax forms
required to be delivered by the New Lender pursuant to Section 10.15 of
the Credit Agreement;
(c) the Administrative Agent shall have distributed to the
Borrower and each Lender an amended Schedule 2.01 to the Credit
Agreement (which shall be deemed incorporated into the Credit Agreement)
reflecting any changes to that Schedule arising as a result of the
increase in the Aggregate Commitments; and
(d) the Increase Effective Date shall have occurred.
11. By countersigning this Agreement below, the Administrative Agent
agrees to register the New Lender as a Lender under the Credit Agreement,
effective as of the Effective Date, and agrees to adjust the registered Pro Rata
Shares of each Lender under the Credit Agreement to reflect the increase in the
Aggregate Commitments.
12. This Agreement shall be governed by, and construed in accordance
with, the laws of the state of CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED ENTIRELY WITHIN SUCH STATE.
13. Attached hereto as Schedule 1 is all contact, address, account and
other administrative information relating to the New Lender.
(remainder of page intentionally left blank)
H-3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of this ____ day of __________, ____.
[ ] Tax forms required by [INSERT NAME OF NEW LENDER],
Section 10.15 of the as the New Lender
Credit Agreement included
By:_________________________________
Name:_______________________________
Title:______________________________
The undersigned hereby acknowledge and consent to the foregoing joinder
as of the Effective Date:
SANMINA CORPORATION
By:_________________________________
Name:_______________________________
Title:______________________________
BANK OF AMERICA, N.A., as Administrative Agent
By:_________________________________
Name:_______________________________
Title:______________________________
H-4
SCHEDULE 1
TO JOINDER AGREEMENT
ADMINISTRATIVE DETAILS
Requests for Credit Extensions:
[Insert address of New Lender]
Attention:________________________________
Telephone:________________________________
Facsimile:________________________________
Email: _________________________________
Notices (other than Requests for Credit Extensions):
[Insert address of New Lender]
Attention:________________________________
Telephone:________________________________
Facsimile:________________________________
Email: _________________________________
Wire Instructions:
Bank: [Insert name of New Lender]
Account No.: ___________________
Reference: ___________________
ABA#: ___________________
Attention: ___________________
Schedule 1 to Joinder Agreement
Page 1