EXHIBIT 10.121
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FIRST AMENDED AND RESTATED
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REVOLVING CREDIT AGREEMENT
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This FIRST AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT is entered
into as of May 28, 1997, among Micron Technology, Inc. a Delaware corporation
(the "Company"), the several financial institutions from time to time party to
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this Agreement (collectively, the "Banks"; individually, a "Bank"), and Bank of
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America National Trust and Savings Association, as agent for the Banks (in such
capacity, the "Agent").
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RECITALS
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A. The Company, the Banks and the Agent entered into that certain
Revolving Credit Agreement, dated as of May 14, 1996, as amended (the "Existing
Facility").
B. The Company, the Banks and the Agent desire to amend and restate the
Existing Facility on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, provisions and
covenants contained herein, the parties agree as follows:
ARTICLE I - DEFINITIONS; OTHER INTERPRETIVE PROVISIONS;
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ACCOUNTING PRINCIPLES
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1.01 Certain Defined Terms. The following terms have the following
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meanings:
"Acquisition" means any transaction or series of related transactions for
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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) provided that the Company or the Subsidiary is the
surviving entity.
"Affiliate" means, as to any Person, any other Person which, directly or
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indirectly, is in control of, is controlled by, or is under common control with,
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct
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or cause the direction of the management and policies of the other Person,
whether through the ownership of voting securities, membership interests, by
contract, or otherwise.
"Agent" means BofA in its capacity as agent for the Banks hereunder, and
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any successor agent arising under Section 9.09.
"Agent-Related Persons" means BofA and any successor agent arising under
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Section 9.09, together with their respective Affiliates (including, in the case
of BofA, the Arranger), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth on
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Schedule 10.02 or such other address as the Agent may from time to time specify.
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"Agreement" means this First Amended and Restated Revolving Credit
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Agreement.
"Applicable Fee Percentage" means, for any date, the per annum percentage
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amount set forth below based on the Leverage Ratio set forth in the Compliance
Certificate most recently delivered pursuant to Section 6.02(a):
Applicable
Level Leverage Ratio Fee Percentage
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1 Less than 0.250 0.150%
2 Greater than or equal to
0.250 but less than 0.350 0.225%
3 Greater than or equal to
0.350 but less than 0.500 0.275%
4 Greater than or equal to 0.500 0.350%
The Applicable Fee Percentage shall be adjusted automatically as to the
commitment fee then accruing effective as of the 90th day after the end of each
fiscal year and the 45th day of the end of the first three fiscal quarters of
each fiscal year based on the Leverage Ratio set forth in the most recently
delivered Compliance Certificate; provided, however, that for the period from
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the Closing Date through the 45th day after the end of the Company's third
fiscal quarter 1997, the Applicable Percentage shall be Level 3.
"Applicable Margin" means, for any date, with respect to each Offshore
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Rate Loan or Base Rate Loan outstanding on such date, the applicable margin (on
a per annum basis) set forth below based on the Leverage Ratio set forth in the
Compliance Certificate most recently delivered pursuant to Section 6.02(a):
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Applicable Margin
Offshore
Base
Rate Rate
Level Leverage Ratio Loans Loans
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1 Less than 0.250 0.400% 00.00%
2 Greater than or equal to
0.250 but less than 0.350 0.650% 00.00%
3 Greater than or equal to
0.350 but less than 0.500 0.750% 00.00%
4 Greater than or equal
to 0.500 0.875% 00.00%
provided, that at any time as the aggregate outstanding principal amount of
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Loans equals or exceeds 50% of the combined Commitments, the Applicable Margin
in respect of any Offshore Rate Loans and Base Rate Loans then outstanding shall
be increased by an additional 0.250%.
The Applicable Margin shall be adjusted automatically as to all Loans
then outstanding effective as of the 90th day after the end of each fiscal year
and the 45th day of the end of the first three fiscal quarters of each fiscal
year based on the Leverage Ratio set forth in the most recently delivered
Compliance Certificate; provided, however, that for the period from the Closing
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Date through the 45th day after the end of the Company's third fiscal quarter
1997, the Applicable Margin shall be Level 3.
"Arranger" means BancAmerica Securities, Inc., a Delaware corporation.
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"Assignee" has the meaning specified in subsection 10.08(a).
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"Attorney Costs" means and includes all reasonable fees and disbursements
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of any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Bank" has the meaning specified in the introductory paragraph hereof.
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"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
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U.S.C. (S)101, et seq.).
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"Base Rate" means, for any day, the higher of: (a) 0.50% per annum above
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the latest Federal Funds Rate; and (b) the rate of interest in effect for such
day as publicly announced from time to time by BofA in San Francisco,
California, as its "reference rate." (The "reference rate" is a rate set by
BofA based upon various factors including BofA's
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costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at, above,
or below such announced rate.) Any change in the reference rate announced by
BofA 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.
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"BofA" means Bank of America National Trust and Savings Association, a
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national banking association.
"Borrowing" means a borrowing hereunder consisting of Loans of the same
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Type made to the Company on the same day by the Banks under Article II, and,
other than in the case of Base Rate Loans, having the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs under Section
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2.03.
"Business Day" means any day other than a Saturday, Sunday or other day
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on which commercial banks in New York, New York, Portland, Oregon, Boise, Idaho,
or San Francisco, California are authorized or required by law to close and, if
the applicable Business Day relates to any Offshore Rate Loan, means such a day
on which dealings are carried on in the applicable offshore dollar interbank
market.
"Capital Adequacy Regulation" means any guideline, request or directive
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of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Charge" has the meaning specified in Section 8.04.
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"Closing Date" means the date on which all conditions precedent set forth
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in Section 4.01 are satisfied or waived by all Banks (or, in the case of
subsection 4.01(e), waived by the Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986, and regulations
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promulgated thereunder.
"Combined Adjusted Total Liabilities" means, as of any date of
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determination, without duplication, the total liabilities of the Company and the
Semiconductor Operations Subsidiaries on a combined basis, as shown in the
Semiconductor Operations Supplemental Schedules, plus all Guaranty Obligations
of the Company and the Semiconductor Operations Subsidiaries on a combined basis
with respect to indebtedness or obligations of Persons other than the Company
and the
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Semiconductor Operations Subsidiaries of the kinds referred to in clauses (a)
through (g) of the definitions of the term "Indebtedness", plus all obligations
of the Company and the Semiconductor Operations Subsidiaries on a combined basis
under operating and synthetic leases in excess of $500,000, individually, which
obligations shall be discounted to present value at the interest rate implicit
in each such lease in effect at any date of determination.
"Combined Net Income" and "Combined Net Loss" mean, respectively, for any
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period, the aggregate net income or loss for such period of the Company and the
Semiconductor Operations Subsidiaries on a combined basis, as shown in the
Semiconductor Operations Supplemental Schedules.
"Combined Tangible Assets" means, as of any date of determination, (a)
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the total assets of the Company and the Semiconductor Operations Subsidiaries on
a combined basis, as shown in the Semiconductor Operations Supplemental
Schedules minus (b) the net book value of all assets of the Company and the
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Semiconductor Operations Subsidiaries on a combined basis, as shown in the
Semiconductor Operations Supplemental Schedules which would be treated as
intangible assets under GAAP, including (without duplication or limitation)
intangible deferred charges, franchise rights, non-compete agreements,
capitalized research and development costs, capitalized costs associated with
software development expenses, goodwill, patents, patent applications,
trademarks, trade names, copyrights and licenses.
"Combined Tangible Net Worth" means, as of any date of determination, (a)
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the total net assets of the Company and the Semiconductor Operations
Subsidiaries on a combined basis, as shown in the Semiconductor Operations
Supplemental Schedules minus (b) the net book value of all assets of the Company
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and the Semiconductor Operations Subsidiaries on a combined basis as shown in
the Semiconductor Operations Supplemental Schedules which would be treated as
intangibles under GAAP, including (without duplication or limitation) intangible
deferred charges, franchise rights, non-compete agreements, capitalized research
and development costs, capitalized costs associated with software development
expenses, goodwill, patents, patent applications, trademarks, trade names,
copyrights and licenses.
"Commitment", as to each Bank, has the meaning specified in Section 2.01.
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"Company" means Micron Technology, Inc. a Delaware corporation.
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"Compliance Certificate" means a certificate, duly executed by a
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Responsible Office of the Company, substantially in the form of Exhibit D.
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"Contingent Obligation" means, as to any Person, any direct or indirect
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liability of that Person, whether or not contingent, with or without recourse:
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
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Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered, or (d) in respect of any Swap Contract.
"Contractual Obligation" means, as to any Person, any provision of any
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security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument, document or agreement to
which such Person is a party or by which it or any of its property is bound.
"Conversion/Continuation Date" means any date on which, under Section
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2.04, the Company (a) converts Loans of one Type to another Type, or (b)
continues as Loans of the same Type, but with a new Interest Period, Loans
having Interest Periods expiring on such date.
"Default" means any event or circumstance which, with the giving of
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notice, the lapse of time, or both, would (if not cured or otherwise remedied
during such time) constitute an Event of Default.
"Disclosure Letter" means the disclosure letter dated the Closing Date
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and signed by a Responsible Officer of the Company delivered to the Agent
pursuant to Section 4.01(g).
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"Dispositions" has the meaning specified in Section 7.03.
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"Distributions" has the meaning specified in Section 7.09.
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"Dollars", "dollars" and "$" each mean lawful money of the United States.
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"EBITDA" means, for any period, Combined Net Income or Combined Net Loss,
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as the case may be, for such period, plus the sum of (a) interest expense, (b)
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income tax expense, (c) depreciation expense, and (d) amortization expense,
which were deductible in determining Combined Net Income or Combined Net Loss.
"Eligible Assignee" means (a) a commercial bank organized under the laws
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of the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having a combined capital and surplus of at least $100,000,000,
provided that such bank is acting through a branch or agency located in the
United States; and (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of
a Person of which a Bank is a Subsidiary, or (iii) a Person of which a Bank is a
Subsidiary.
"Environmental Claims" means all claims, however asserted, by any
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Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law, or for release or injury
to the environment.
"Environmental Laws" means all federal, state or local laws, statutes,
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common law duties, rules, regulations, ordinances and codes, together with all
administrative orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authorities, in each case
relating to environmental, health, safety and land use matters.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
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regulations promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
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incorporated) under common control with the Company 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
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relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
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Plan; (b) a withdrawal by the Company or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations which is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Company or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Section 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which might reasonably be
expected to constitute grounds under Section 4042 of ERISA for the termination
of, or the appointment of a trustee to administer, any Pension Plan or
Multiemployer Plan; or (f) the imposition of any material liability under Title
IV of ERISA, other than PBGC premiums due but not delinquent under Section 4007
of ERISA, upon the Company or any ERISA Affiliate.
"Eurodollar Reserve Percentage" has the meaning specified in the
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definition of "Offshore Rate".
"Event of Default" means any of the events or circumstances specified in
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Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, and regulations
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promulgated thereunder.
"Existing Facility" has the meaning set forth in Recital A to this
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Agreement.
"FDIC" means the Federal Deposit Insurance Corporation, and any
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Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the weekly
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statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Bank of New York (including any such successor,
"H.15(519)") on the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published on any
such preceding Business Day, the rate for such day will be the arithmetic mean
as determined by the Agent of the rates for the last transaction in overnight
Federal funds arranged prior to 9:00 a.m. (New York City time) on that day by
each of three leading brokers of Federal funds transactions in New York City
selected by the Agent.
"FRB" means the Board of Governors of the Federal
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Reserve System, and any Governmental Authority succeeding to any of its
principal functions.
"Further Taxes" means any and all present or future taxes, levies,
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assessments, imposts, duties, deductions, fees, withholdings or similar charges
(including, without limitation, net income taxes and franchise taxes), and all
liabilities with respect thereto, imposed by any jurisdiction on account of
amounts payable or paid pursuant to Section 3.01.
"GAAP" means generally accepted accounting principles set forth from time
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to time 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 agencies with
similar functions of comparable stature and authority within the U.S. accounting
profession), which are applicable to the circumstances as of the Closing Date.
"Governmental Authority" means any nation or government, any state or
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other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative 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.
"Guaranty Obligation" has the meaning specified in the definition of
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"Contingent Obligation."
"Indebtedness" of any Person means, without duplication: (a) all
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indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than
royalty payables and trade payables entered into in the ordinary course of
business on ordinary terms); (c) all non-contingent reimbursement or
payment obligations with respect to Surety Instruments; (d) all obligations
evidenced by notes, bonds, debentures or similar instruments, including
obligations so evidenced incurred in connection with the acquisition of
property, assets or businesses; (e) all indebtedness created or arising under
any conditional sale or other title retention agreement, or incurred as
financing, in either case with respect to property acquired by the Person (even
though the rights and remedies of the seller or bank under such agreement in the
event of default are limited to repossession or sale of such property); (f) all
obligations with respect to capital leases; (g) all indebtedness referred to in
clauses (a) through (f) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in property (including accounts and contracts rights) owned by
such Person, even though such Person has not
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assumed or become liable for the payment of such Indebtedness; and (h) all
Guaranty Obligations in respect of indebtedness or obligations of others of the
kinds referred to in clauses (a) through (g) above. For all purposes of this
Agreement, the Indebtedness of any Person shall include all recourse
Indebtedness of any partnership or joint venture or limited liability company in
which such Person is a general partner or a joint venturer or a member.
"Indemnified Liabilities" has the meaning specified in Section 10.05.
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"Indemnified Person" has the meaning specified in Section 10.05.
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"Independent Auditor" has the meaning specified in subsection 6.01(a).
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"Insolvency Proceeding" means, with respect to any Person, (a) any case,
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action or proceeding with respect to such Person before any court or other
Governmental Authority relating to bankruptcy, reorganization, insolvency,
liquidation, receivership, dissolution, winding-up or relief of debtors, or (b)
any general assignment for the benefit of creditors, composition, marshalling of
assets for creditors, or other, similar arrangement in respect of its creditors
generally or any substantial portion of its creditors; undertaken under U.S.
Federal, state or foreign law, including the Bankruptcy Code.
"Intellectual Property Licenses" has the meaning specified in Section
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6.03(b).
"Interest Payment Date" means, as to any Loan other than a Base Rate
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Loan, the last day of each Interest Period applicable to such Loan and, as to
any Base Rate Loan, the last Business Day of each calendar quarter and each date
such Loan is converted into another Type of Loan; provided, however, that if any
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Interest Period for an Offshore Rate Loan exceeds three months, the date that
falls three months after the beginning of such Interest Period and after each
Interest Payment Date thereafter is also an Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the period
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commencing on the Borrowing Date of such Loan or on the Conversion/Continuation
Date on which the Loan is converted into or continued as an Offshore Rate Loan,
and ending on the date one, two, three or six months thereafter as selected by
the Company in its Notice of Borrowing or Notice of Conversion/Continuation;
provided, that:
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(a) if any Interest Period would otherwise end on a day that is not a
Business Day, that Interest Period shall be
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extended to the following Business Day unless, in the case of an Offshore Rate
Loan, the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on the
preceding Business Day;
(b) any Interest Period pertaining to an Offshore 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
(c) no Interest Period for any Loan shall extend beyond the Revolving
Termination Date as in effect on the date such Loan is made, converted or
continued, as the case may be.
"Investments" has the meaning specified in Section 7.05.
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"IRS" means the Internal Revenue Service, and any Governmental Authority
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succeeding to any of its principal functions under the Code.
"Lending Office" means, as to any Bank, the office or offices of such
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Bank specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on Schedule 10.02, or such other office or
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offices as such Bank may from time to time notify the Company and the Agent.
"Leverage Ratio" means, as of any date of determination, the ratio of (a)
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Combined Adjusted Total Liabilities, after giving effect to any payments or
prepayments hereunder made on such date, to (b) Combined Tangible Net Worth.
"Lien" means any security interest, mortgage, deed of trust, pledge,
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hypothecation, assignment, charge or deposit arrangement, encumbrance, lien
(statutory or other) or preferential arrangement of any kind or nature
whatsoever in respect of any property (including those created by, arising under
or evidenced by any conditional sale or other title retention agreement, the
interest of a lessor under a capital lease, any financing lease having
substantially the same economic effect as any of the foregoing, or the filing of
any financing statement naming the owner of the asset to which such lien relates
as debtor, under the Uniform Commercial Code or any comparable law) and any
contingent or other agreement to provide any of the foregoing, but not including
the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank to the Company under
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Article II, and may be a Base Rate Loan or an
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Offshore Rate Loan (each, a "Type" of Loan).
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"Loan Documents" means this Agreement, the Notes, the Disclosure Letter,
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all fee letters and all other certificates, documents or financial or other
statements delivered at any time to the Agent or any Bank in connection herewith
or with any other Loan Document.
"Majority Banks" means at any time Banks then holding at least 66-2/3% of
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the then aggregate unpaid principal amount of the Loans, or, if no such
principal amount is then outstanding, Banks then having at least 66-2/3% of the
Commitments.
"Margin Stock" means "margin stock" as such term is defined in Regulation
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G, T, U or X of the FRB.
"Material Adverse Effect" means (a) a material adverse change in, or a
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material adverse effect upon, the operations, business, properties or condition
(financial or otherwise) of the Company or the Company and its Semiconductor
Operations Subsidiaries taken as a whole; (b) a material impairment of the
ability of the Company to perform under any Loan Document and to avoid any Event
of Default; or (c) a material adverse effect upon the legality, validity,
binding effect or enforceability against the Company of any Loan Document.
"Material Semiconductor Operations" means, at any time, semiconductor
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operations (excluding any existing Subsidiary that is not a Wholly-Owned
Subsidiary, and its Subsidiaries, if any) which both (a) comprise assets having
a net book value equal to or greater than ten percent (10%) of the combined
total assets of the Company and its Semiconductor Operations Subsidiaries as
shown in the Semiconductor Operations Supplemental Schedules, and (b) for the
most recent fiscal quarter or the most recent fiscal year, generated operating
income equal to or greater than ten percent (10%) of the combined income from
operations for the Company and its Semiconductor Operations Subsidiaries as
shown in the Semiconductor Operations Supplemental Schedules.
"Material Semiconductor Operations Subsidiary" means, at any time, (a)
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any Semiconductor Operations Subsidiary conducting Material Semiconductor
Operations, and (b) any Semiconductor Operations Subsidiary owning 50% or more
of the voting stock or other equity interest of any Material Semiconductor
Operations Subsidiary.
"Multiemployer Plan" means a "multiemployer plan", within the meaning of
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Section 4001(a)(3) of ERISA, to which the Company or any ERISA Affiliate makes,
is making, or is obligated to make contributions or, during the preceding three
calendar years, has made, or been obligated to make, contributions.
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"Negative Pledge" has the meaning specified in Section 7.02.
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"Note" means a promissory note executed by the Company in favor of a Bank
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pursuant to Section 2.02(b), in substantially the form of Exhibit C.
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"Notice of Borrowing" means a notice in substantially the form of Exhibit
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A.
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"Notice of Conversion/Continuation" means a notice in substantially the
---------------------------------
form of Exhibit B.
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"Obligations" means all advances, debts, liabilities, obligations,
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covenants and duties arising under any Loan Document owing by the Company to any
Bank, the Agent, or any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising.
"Offshore Rate" means, for any Interest Period, with respect to Offshore
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Rate Loans comprising part of the same Borrowing, the rate of interest per annum
(rounded upward to the next 1/16th of 1%) determined by the Agent as follows:
Offshore Rate = LIBOR
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1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day in any Interest
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Period the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%) in effect on such day (whether or not
applicable to any Bank) under regulations issued from time to time by the
FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with
respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"); and
"LIBOR" means, for any Interest Period, the rate of interest per annum
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determined by the Agent to be the arithmetic mean (rounded upward to the
next 1/16th of 1%) equal to the rates of interest per annum notified to
the Agent by BofA as the rate of interest at which dollar deposits in the
approximate amount of the amount of the Loan to be made or continued as,
or converted into, an Offshore Rate Loan by BofA and having a maturity
comparable to such Interest Period would be offered to major banks in the
London interbank market at their request at approximately 11:00 a.m.
(London time)
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two Business Days prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in the
Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on the
------------------
Offshore Rate.
"Organization Documents" means, for any corporation, the certificate or
----------------------
articles of incorporation, the bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of such corporation,
any shareholder rights agreement, and all applicable resolutions of the board of
directors (or any committee thereof) of such corporation.
"Other Taxes" means any present or future stamp, court or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies imposed
by any Governmental Authority which arise from any payment made hereunder by the
Company or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, this Agreement or any other Loan
Documents.
"Pari Passu Debt Amount" means, as of any date of determination, an
----------------------
amount equal to the sum of (a) outstanding Senior Unsecured Debt permitted
pursuant to Section 7.06(k), plus (b) outstanding Indebtedness permitted
pursuant to Section 7.06(h), as of such date.
"Participant" has the meaning specified in Section 10.08(d).
-----------
"PBGC" means the Pension Benefit Guaranty Corporation, or any
----
Governmental Authority succeeding to any of its principal functions under ERISA.
"Pension Plan" means a pension plan (as defined in Section 3(2) of ERISA)
------------
subject to Title IV of ERISA which the Company sponsors, maintains, or to which
it makes, is making, or is obligated to make contributions, or in the case of a
multiple employer plan (as described in Section 4064(a) of ERISA) has made
contributions at any time during the immediately preceding five (5) plan years.
"Permitted Liens" has the meaning specified in Section 7.01.
---------------
"Permitted Sale-Leaseback Transaction" means a transaction pursuant to
------------------------------------
which the Company or any of the
-14-
Semiconductor Operations Subsidiaries purchases equipment and, within 12 months
thereafter, sells such equipment to, and leases back such equipment from, a
third-party pursuant to an operating or capital lease.
"Permitted Subordinated Debt" means any Indebtedness of the Company
---------------------------
issued under a written instrument which, unless otherwise consented to by the
Majority Banks prior to the issuance thereof:
(i) without giving effect to the first clause of Section 1501 of
the Subordinated Note Indenture providing for modifications in a
supplemental indenture or pursuant to Section 301, contains subordination
provisions at least as favorable to the Banks as those contained in
Article Fifteen of the Subordinated Note Indenture as set forth in
Exhibit G;
---------
(ii) provides that the stated maturity date of such subordinated
Indebtedness shall be at least one year after the Revolving Termination
Date in effect on the date of its issuance;
(iii) requires no mandatory or scheduled amortization,
prepayments, redemptions, repurchases, defeasances or sinking fund
payments prior to one year after the Revolving Termination Date in effect
on the date of its issuance except for mandatory redemptions and
------ ---
purchases upon the occurrence of certain changes in control or
fundamental changes with respect to the Company which are approved by the
Majority Banks prior to the issuance of such subordinated Indebtedness,
which mandatory redemptions and purchases shall be subject to the
subordination provisions set forth in this definition;
(iv) contains no representations, warranties or covenants other
than those set forth in Articles Eight and Ten of the Subordinated Note
Indenture as set forth in Exhibit G other than those which are not
---------
otherwise inconsistent with the other clauses of this definition or are
not more restrictive on the Company than, or are in addition to, the
representations, warranties or covenants concerning the operation or
condition of the Company contained in the Agreement;
(v) contains no events of default other than those set forth in
Section 501(1)-(6) of the Subordinated Note Indenture as set forth in
Exhibit G other than a cross-acceleration clause substantially in the
---------
form set forth in the Disclosure Letter;
(vi) contains no modifications, additions or
-15-
deletions to the Subordinated Note Indenture as set forth in Exhibit G
---------
(made pursuant to a supplemental indenture, pursuant to Section 301 or
901 of the Subordinated Note Indenture or otherwise) unless the Majority
Banks have determined that such modifications, additions or deletions are
not otherwise inconsistent with the other clauses of this definition or
adverse to the interests of the Banks from the standpoint of senior
lenders;
(vii) is unsecured except for Liens granted in favor of the
trustee for such Permitted Subordinated Debt as described in the
Disclosure Letter to secure fees and other amounts owing to such trustee;
(viii) contains conversion features, including the type of
security or property into which such subordinated Indebtedness may be
converted, consented to by the Majority Banks prior to the issuance of
such subordinated Indebtedness; and
(ix) the Agent and the Majority Banks have determined is in form
and substance not otherwise inconsistent with the requirements of this
definition.
"Permitted Swap Obligations" means all obligations (contingent or
--------------------------
otherwise) of the Company or any Semiconductor Operations Subsidiary existing or
arising under Swap Contracts, provided that each of the following criteria is
satisfied: (a) 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 or assets held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person in conjunction with a securities repurchase program not otherwise
prohibited hereunder, and not for purposes of speculation or taking a "market
view;" and (b) such Swap Contracts do not contain (i) any provision ("walk-away"
provision) exonerating the non-defaulting party from its obligation to make
payments on outstanding transactions to the defaulting party, or (ii) any
provision creating or permitting the declaration of an event of default,
termination event or similar event upon the occurrence of an Event of Default
hereunder (other than an Event of Default under Section 8.01(a)).
"Person" means an individual, partnership, corporation, limited liability
------
company, business trust, joint stock company, trust, unincorporated association,
joint venture or Governmental Authority.
"Plan" means an employee benefit plan (as defined in Section 3(3) of
----
ERISA) which the Company sponsors or maintains or to which the Company makes, is
making, or is obligated to
-16-
make contributions and includes any Pension Plan.
"Pro Rata Share" means, as to any Bank at any time, the percentage
--------------
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the combined Commitments of all Banks.
"Reportable Event" means, any of the events set forth in Section 4043(c)
----------------
of ERISA or the regulations thereunder, other than any such event for which the
30-day notice requirement under ERISA has been waived in regulations issued by
the PBGC.
"Requirement of Law" means, as to any Person, any law (statutory or
------------------
common), treaty, rule or regulation or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Responsible Officer" means the chief executive officer, president, chief
-------------------
financial officer or treasurer of the Company, or any other officer having
substantially the same authority and responsibility.
"Revolving Termination Date" means the earlier to occur of (a) May 28,
--------------------------
2000, and (b) the date on which the Commitments terminate in accordance with the
provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any Governmental
---
Authority succeeding to any of its principal functions.
"Semiconductor Operations Subsidiaries" means all Wholly-Owned
-------------------------------------
Subsidiaries of the Company conducting from time to time semiconductor
operations and as specified and described in the notes to the most recent
Semiconductor Operations Supplemental Schedules (individually, a "Semiconductor
Operations Subsidiary").
"Semiconductor Operations Supplemental Schedules" means the Supplemental
-----------------------------------------------
Schedules of Net Assets of Semiconductor Operations and Other Operations, the
Supplemental Schedules of Semiconductor Operations, the Supplemental Schedules
of Cash Flows of Semiconductor Operations and the notes thereto, which are to
present fairly, in all material respects, the net assets and operations and cash
flows of the Company and its Semiconductor Operations Subsidiaries (on a
combined basis) for the periods covered thereby, on the basis specified and
described in the notes to such schedules. The items "Investments in other
affiliated operations" and "Net assets -other operations, at cost" shall be
excluded for all purposes in computing covenant compliance in this Agreement,
and all references to the Semiconductor Operations Supplemental
-17-
Schedules shall be deemed to exclude such items for computing covenant
compliance.
"Senior Unsecured Debt" means Indebtedness of the Company issued under a
---------------------
written instrument consented to by the Agent and the Majority Banks containing
terms and conditions no more favorable to the lender(s) under such facility as
those contained herein, as amended, supplemented or otherwise modified from time
to time with the prior written consent of the Agent and the Majority Banks.
"Subordinated Note Indenture" means that certain Indenture between the
---------------------------
Company and Norwest Bank Minnesota, National Association, substantially in the
form of Exhibit G, as amended, supplemented or otherwise modified from time to
---------
time (with the prior written consent of the Majority Banks if such amendment,
supplement or other modification would allow for the issuance of Indebtedness
not satisfying all the conditions set forth in the definition of "Permitted
Subordinated Debt").
"Subsidiary" of a Person means any corporation, association, partnership,
----------
limited liability company, joint venture or other business entity of which 50%
or more of the voting stock, membership interests or other equity interests (in
the case of Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires, references
herein to a "Subsidiary" refer to a Subsidiary of the Company.
"Surety Instruments" means all letters of credit (including standby and
------------------
commercial), banker's acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swap Contract" means any agreement, whether or not in writing, relating
-------------
to any transaction that is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap or option, bond,
note or xxxx option, interest rate option, forward foreign exchange transaction,
cap, collar or floor transaction, currency swap, cross-currency rate swap,
swaption, currency option or any other, similar transaction (including any
option to enter into any of the foregoing) or any combination of the foregoing,
and, unless the context otherwise clearly requires, any master agreement
relating to or governing any or all of the foregoing.
"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
-18-
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 xxxx-to-market value(s)
for such Swap Contracts, as determined by the Company 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 Bank).
"Taxes" means any and all present or future taxes, levies, assessments,
-----
imposts, duties, deductions, fees, withholdings or similar charges, and all
liabilities with respect thereto, excluding, in the case of each Bank and the
Agent, respectively, taxes imposed on or measured by its net income by the
jurisdiction (or any political subdivision thereof) under the laws of which such
Bank or the Agent, as the case may be, is organized or maintains a lending
office.
"Type" has the meaning specified in the definition of "Loan."
----
"Unfunded Pension Liability" means the excess of a Plan's benefit
--------------------------
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
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.
------------- ----
"Wholly-Owned Subsidiary" means any corporation or limited liability
-----------------------
company in which (other than directors' qualifying shares or local ownership
shares required by law) 100% of the capital stock of each class having ordinary
voting power, and 100% of the capital stock of every other class, in each case,
at the time as of which any determination is being made, is owned, beneficially
and of record, by the Company, or by one or more of the other Wholly-Owned
Subsidiaries, or both.
1.02 Other Interpretive Provisions. (a) The meanings of defined terms
-----------------------------
are equally applicable to the singular and plural forms of the defined terms.
The words "hereof", "herein", "hereunder" and similar words refer to this
Agreement as a whole and not to any particular provision of this Agreement; and
subsection, Section, Schedule and Exhibit references are to this Agreement
unless otherwise specified. The term "documents" includes any and all
instruments, documents, agreements, certificates, indentures, notices and other
writings, however evidenced. The term "including" is not limiting and means
"including without limitation." In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from and
including"; the
-19-
words "to" and "until" each mean "to but excluding", and the word "through"
means "to and including." The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of this
Agreement.
(b) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(c) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms. Unless otherwise expressly provided,
any reference to any action of the Agent or the Banks by way of consent,
approval or waiver shall be deemed modified by the phrase "in its/their sole
discretion."
(d) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Company
and the Banks, and are the products of all the parties. Accordingly, they shall
not be construed against the Agent or the Banks merely because of the Agent's or
Banks' involvement in their preparation.
1.03 Accounting Principles. Unless the context otherwise clearly
---------------------
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, consistently applied. References herein to "fiscal year"
and "fiscal quarter" refer to such fiscal periods of the Company.
-20-
ARTICLE II - THE REVOLVING CREDIT
---------------------------------
2.01 Amounts and Terms of Commitments. Each Bank severally agrees, on
--------------------------------
the terms and conditions set forth herein, to make loans to the Company from
time to time on any Business Day during the period from the Closing Date to the
Revolving Termination Date, in an aggregate amount not to exceed at any time
outstanding the amount set forth on Schedule 2.01 (such amount, as the same may
-------------
be reduced under Section 2.05 or as a result of one or more assignments under
Section 10.08, the Bank's "Commitment"); provided, however, that, after giving
---------- -------- -------
effect to any Borrowing, the aggregate principal amount of all outstanding Loans
shall not at any time exceed the combined Commitments. Within the limits of
each Bank's Commitment, and subject to the other terms and conditions hereof,
the Company may borrow under this Section 2.01, prepay under Section 2.06 and
reborrow under this Section 2.01.
2.02 Loan Accounts. (a) The Loans made by the Banks shall be
-------------
evidenced by one or more accounts or records maintained by the Banks in the
ordinary course of business. The accounts or records maintained by the Agent and
each Bank shall be conclusive absent manifest error of the amount of the Loans
made by the Banks to the Company, and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing
with respect to the Loans.
(b) Upon the request of any Bank made through the Agent, the Loans
made by each Bank shall be evidenced by a Note executed by the Company in favor
of such Bank, instead of loan accounts. Each Bank may endorse on schedules
annexed to its Note the date, amount and maturity of each Loan made by it and
the amount of each payment of principal made by the Company with respect
thereto. Each Bank is irrevocably authorized by the Company to endorse its Note
and each Bank's record shall be conclusive absent manifest error; provided,
--------
however, that the failure of a Bank to make, or an error in making, a notation
-------
thereon with respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to such Bank.
2.03 Procedure for Borrowing. (a) Each Borrowing shall be made upon
-----------------------
the Company's irrevocable written notice delivered to the Agent in the form of a
Notice of Borrowing, which notice must be received by the Agent prior to (i) in
the case of Offshore Rate Loans, 9:00 a.m. (San Francisco time) three Business
Days prior to the requested Borrowing Date and (ii) in the case of Base Rate
Loans, 8:00 a.m. (San Francisco time) on the requested Borrowing Date,
specifying: (A) the amount of the Borrowing, which shall be in an aggregate
minimum
-21-
amount of $10,000,000 or any multiple of $5,000,000 in excess thereof; (B) the
requested Borrowing Date, which shall be a Business Day; (C) the Type of Loans
comprising the Borrowing; and (D) the duration of the Interest Period applicable
to such Loans included in such notice (if the Notice of Borrowing fails to
specify the duration of the Interest Period for any Borrowing comprised of
Offshore Rate Loans, such Interest Period shall be one month). After giving
effect to any Borrowing, unless the Agent shall otherwise consent, there may not
be more than six different Interest Periods in effect.
(b) The Agent will promptly notify each Bank of its receipt of any
Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Borrowing. Each Bank will make the amount of its Pro Rata Share of each
Borrowing available to the Agent for the account of the Company at the Agent's
Payment Office by 11:00 a.m. (San Francisco time) on the Borrowing Date
requested by the Company in funds immediately available to the Agent. The
proceeds of all such Loans will then be made available to the Company by the
Agent at such office by crediting the account of the Company on the books of
BofA (or any successor Agent pursuant to Section 9.09) with the aggregate of the
amounts made available to the Agent by the Banks and in like funds as received
by the Agent or, if requested by the Company, by wire transfer in accordance
with written instructions provided to the Agent by the Company of like funds as
received by the Agent.
2.04 Conversion and Continuation Elections. (a) The Company may,
-------------------------------------
upon irrevocable written notice to the Agent in accordance with Section 2.04(b):
(i) elect, as of any Business Day, in the case of Base Rate Loans, or as of the
last day of the applicable Interest Period, in the case of any other Type of
Loans, to convert any such Loans (or any part thereof in an amount not less than
$10,000,000, or that is in an integral multiple of $5,000,000 in excess thereof)
into Loans of any other Type; or (ii) elect, as of the last day of the
applicable Interest Period, to continue any Loans having Interest Periods
expiring on such day (or any part thereof in an amount not less than
$10,000,000, or that is in an integral multiple of $5,000,000 in excess
thereof); provided, that if at any time the aggregate amount of Offshore Rate
--------
Loans in respect of any Borrowing is reduced, by payment, prepayment, or
conversion of part thereof to be less than $10,000,000, such Offshore Rate Loans
shall automatically convert into Base Rate Loans, and on and after such date the
right of the Company to continue such Loans as, and convert such Loans into,
Offshore Rate Loans shall terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to
be received by the Agent not later than (i) 9:00 a.m. (San Francisco time) at
least three Business Days in advance of the Conversion/Continuation Date, if the
-22-
Loans are to be converted into or continued as Offshore Rate Loans, and (ii)
8:00 a.m. (San Francisco time) on the Conversion/Continuation Date, if the Loans
are to be converted into Base Rate Loans, specifying: (A) the proposed
Conversion/Continuation Date; (B) the aggregate amount of Loans to be converted
or continued; (C) the Type of Loans resulting from the proposed conversion or
continuation; and (D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period. After giving effect to any
conversion or continuation of Loans, unless the Agent shall otherwise consent,
there may not be more than six different Interest Periods in effect.
(c) During the existence of an Event of Default, the Company may not
elect to have a Loan converted into or continued as an Offshore Rate Loan. If
upon the expiration of any Interest Period applicable to Offshore Rate Loans,
the Company has failed to select timely a new Interest Period to be applicable
to such Offshore Rate Loans, as the case may be, or if any Event of Default then
exists, the Company shall be deemed to have elected to convert such Offshore
Rate Loans into Base Rate Loans effective as of the expiration date of such
Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by the
Company, or if the Agent has received a notice of an Event of Default pursuant
to Section 9.05, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans held by
each Bank with respect to which the notice was given.
2.05 Voluntary Termination or Reduction of Commitments. Subject to
-------------------------------------------------
Section 3.04, the Company may, upon not less than three Business Days' prior
notice to the Agent by 9:00 a.m. (San Francisco time), terminate the
Commitments, or permanently reduce the Commitments by an aggregate minimum
amount of $10,000,000, or any multiple of $5,000,000 in excess thereof; unless,
------
after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of the Loans would
exceed the amount of the combined Commitments then in effect. Once reduced in
accordance with this Section, the Commitments may not be increased. Any
reduction of the Commitments shall be applied to each Bank according to its Pro
Rata Share. All accrued commitment fees to, but not including the effective
date of any termination of Commitments, shall be paid on the effective date of
such termination.
2.06 Optional Prepayments. Subject to Section 3.04, the Company may,
--------------------
at any time or from time to time, upon (a) in
-23-
the case of Offshore Rate Loans, irrevocable notice to the Agent given prior to
9:00 a.m. (San Francisco time) not less than three Business Days and (b) in the
case of Base Rate Loans, irrevocable notice to the Agent given prior to 8:00
a.m. (San Francisco time) on the date of prepayment, ratably prepay Loans in
whole or in part, in minimum amounts of $10,000,000, or any multiple of
$5,000,000 in excess thereof. Such notice of prepayment shall specify the date
and amount of such prepayment and the Type(s) of Loans to be prepaid. The Agent
will promptly notify each Bank of its receipt of any such notice, and of such
Bank's Pro Rata Share of such prepayment. If such notice is given by the
Company, the Company shall make such prepayment and the payment amount specified
in such notice shall be due and payable on the date specified therein, together
with accrued interest to each such date on the amount prepaid and any amounts
required pursuant to Section 3.04.
2.07 Repayment. The Company shall repay to the Banks on the Revolving
---------
Termination Date the aggregate principal amount of Loans outstanding on such
date.
2.08 Interest. (a) Each Loan shall bear interest on the outstanding
--------
principal amount thereof from the applicable Borrowing Date at a rate per annum
equal to the Offshore Rate or the Base Rate, as the case may be (and subject to
the Company's right to convert to other Types of Loans under Section 2.04), plus
----
the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Loans under Section 2.06 for the portion of the Loans so prepaid and upon
payment (including prepayment) in full thereof and, during the existence of any
Event of Default, interest shall be paid on demand of the Agent at the request
or with the consent of the Majority Banks.
(c) Notwithstanding subsection (a) of this Section, if any amount of
principal of or interest on any Loan, or any other amount payable hereunder or
under any other Loan Document is not paid in full when due (whether at stated
maturity, by acceleration, demand or otherwise), the Company agrees to pay
interest on such unpaid principal or other amount, from the date such amount
becomes due until the date such amount is paid in full, and after as well as
before any entry of judgment thereon to the extent permitted by law, payable on
demand, at a fluctuating rate per annum equal to the Base Rate plus 2%.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company to any Bank hereunder shall be subject to the limitation that
payments of interest shall not be required for any period for which interest is
computed hereunder, to the extent (but only to the extent) that contracting for
or receiving such payment by such Bank would be
-24-
contrary to the provisions of any law applicable to such Bank limiting the
highest rate of interest that may be lawfully contracted for, charged or
received by such Bank, and in such event the Company shall pay such Bank
interest at the highest rate permitted by applicable law.
2.09 Fees. (a) Arrangement, Agency Fees. The Company shall pay an
---- ------------------------
arrangement fee to the Arranger for the Arranger's own account, and shall pay an
agency fee to the Agent for the Agent's own account, as required by the letter
agreement between the Company and the Arranger and the Agent dated April 10,
1997.
(b) Participation Fee. The Company shall pay to the Agent for the
-----------------
account of each Bank a participation fee, as required by the letter agreement
between the Company and the Agent dated April 10, 1997.
(c) Commitment Fees. The Company shall pay to the Agent for the
---------------
account of each Bank a commitment fee on the average daily unused portion of
such Bank's Commitment, computed on a quarterly basis in arrears on the last
Business Day of each calendar quarter based upon the daily utilization for that
quarter as calculated by the Agent, at a rate per annum equal to the Applicable
Fee Percentage. Such commitment fee shall accrue from the Closing Date to the
Revolving Termination Date and shall be due and payable quarterly in arrears on
the last Business Day of each calendar quarter commencing on June 30, 1997
through the Revolving Termination Date, with the final payment to be made on the
Revolving Termination Date; provided that, in connection with any termination of
--------
Commitments under Section 2.05, the accrued commitment fee calculated for the
period ending on such date shall also be paid on the date of such termination,
with the following quarterly payment being calculated on the basis of the period
from such termination date to such quarterly payment date. The commitment fees
provided in this subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more conditions in
Section 4.02 are not met.
2.10 Computation of Fees and Interest. All computations of interest
--------------------------------
for Base Rate Loans when the Base Rate is determined by BofA's "reference rate"
shall be made on the basis of a year of 365 or 366 days, as the case may be, and
actual days elapsed. All other computations of fees and interest shall be made
on the basis of a 360-day year and actual days elapsed (which results in more
interest being paid than if computed on the basis of a 365-day year). Interest
and fees shall accrue during each period during which interest or such fees are
computed from the first day thereof to the last day thereof. Each determination
of an interest rate by the Agent shall be conclusive and binding on the Company
and the
-25-
Banks in the absence of manifest error.
2.11 Payments by the Company. (a) All payments to be made by the
-----------------------
Company shall be made without set-off, recoupment or counterclaim. Except as
otherwise expressly provided herein, all payments by the Company shall be made
to the Agent for the account of the Banks at the Agent's Payment Office, and
shall be made in dollars and in immediately available funds, no later than 10:00
a.m. (San Francisco time) on the date specified herein. The Agent will promptly
distribute to each Bank its Pro Rata Share (or other applicable share as
expressly provided herein) of such payment in like funds as received. Any
payment received by the Agent later than 10:00 a.m. (San Francisco time) shall
be deemed to have been received on the following Business Day and any applicable
interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to the
date on which any payment is due to the Banks that the Company will not make
such payment in full as and when required, the Agent may assume that the Company
has made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Company has not made such
payment in full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such Bank
until the date repaid.
2.12 Payments by the Banks to the Agent. Unless the Agent receives
----------------------------------
notice from a Bank on or prior to the Closing Date or, with respect to any
Borrowing after the Closing Date, at least one Business Day prior to the date of
such Borrowing, that such Bank will not make available as and when required
hereunder to the Agent for the account of the Company the amount of that Bank's
Pro Rata Share of the Borrowing, the Agent may assume that each Bank has made
such amount available to the Agent in immediately available funds on the
Borrowing Date and the Agent may (but shall not be so required), in reliance
upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full amount
available to the Agent in immediately available funds and the Agent in such
-26-
circumstances has made available to the Company such amount, that Bank shall on
the Business Day following such Borrowing Date make such amount available to the
Agent, together with interest at the Federal Funds Rate for each day during such
period. A notice of the Agent submitted to any Bank with respect to amounts
owing under this Section shall be conclusive, absent manifest error. If such
amount is so made available, such payment to the Agent shall constitute such
Bank's Loan on the date of Borrowing for all purposes of this Agreement. If such
amount is not made available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the Company of such failure to fund and,
upon demand by the Agent, the Company shall pay such amount to the Agent for the
Agent's account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing. The failure of
any Bank to make any Loan on any Borrowing Date shall not relieve any other Bank
of any obligation hereunder to make a Loan on such Borrowing Date, but no Bank
shall be responsible for the failure of any other Bank to make the Loan to be
made by such other Bank on any Borrowing Date.
2.13 Sharing of Payments, Etc. If, other than as expressly provided
-------------------------
elsewhere herein, any Bank 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), other than pursuant to Article III, in excess of its
ratable share (or other share contemplated hereunder), such Bank shall
immediately (a) notify the Agent of such fact, and (b) purchase from the other
Banks such participations in the Loans made by them as shall be necessary to
cause such purchasing Bank to share the excess payment pro rata with each of
them; provided, however, that if all or any portion of such excess payment is
-------- -------
thereafter recovered from the purchasing Bank, such purchase shall to that
extent be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to (ii) the total amount so recovered from the
purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. The Company agrees
that any Bank so purchasing a participation from another Bank may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off, but subject to Section 10.10) with respect to such
participation as fully as if such Bank were the direct creditor of the Company
in the amount of such participation. The 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 Banks following
any such purchases or repayments.
-27-
2.14 Optional Extension of Commitments. The Company may request the
---------------------------------
Banks to extend the Revolving Termination Date for a period of one year by
delivering a written request for such extension to the Agent (who shall promptly
notify the Banks) at any time after the first anniversary of the Closing Date
but on or before the 45th day prior to the Revolving Termination Date. Each Bank
shall respond in writing to such extension request by providing written notice
of its acceptance or rejection of such request to the Agent within 30 Business
Days after it receives such request from the Agent. Any Bank not responding
within such period shall be deemed to have rejected such request for extension.
Such extension shall require the unanimous consent of the Banks, and if such
unanimous consent is obtained, the Revolving Termination Date shall thereupon be
so extended by one year after the then current Revolving Termination Date.
ARTICLE III - TAXES, YIELD PROTECTION AND ILLEGALITY
----------------------------------------------------
3.01 Taxes. (a) Any and all payments by the Company to each Bank or
-----
the Agent under this Agreement and any other Loan Document shall be made free
and clear of, and without deduction or withholding for, any Taxes. In addition,
the Company shall pay all Other Taxes.
(b) If the Company shall be required by law to deduct or withhold any
Taxes, Other Taxes or Further Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, then, subject to Section 3.01(e): (i) the
sum payable shall be increased as necessary so that, after making all required
deductions and withholdings (including deductions and withholdings applicable to
additional sums payable under this Section), such Bank or the Agent, as the case
may be, receives and retains an amount equal to the sum it would have received
and retained had no such deductions or withholdings been made; (ii) the Company
shall make such deductions and withholdings; (iii) the Company shall pay the
full amount deducted or withheld to the relevant taxing authority or other
authority in accordance with applicable law; and (iv) the Company shall also pay
to each Bank or the Agent for the account of such Bank, at the time interest is
paid, Further Taxes in the amount that the respective Bank specifies as
necessary to preserve the after-tax yield the Bank would have received if such
Taxes, Other Taxes or Further Taxes had not been imposed (but only if such
Taxes, Other Taxes or Further Taxes are imposed because the Company has made any
payment to the Agent or any Bank 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
-28-
States).
(c) Subject to Section 3.01(e), the Company agrees to indemnify and
hold harmless each Bank and the Agent for the full amount of (i) Taxes, (ii)
Other Taxes, and (iii) Further Taxes referred to in Section 3.01(b) in the
amount that the respective Bank specifies as necessary to preserve the after-tax
yield the Bank would have received if such Taxes, Other Taxes or Further Taxes
had not been imposed (but only if such Taxes, Other Taxes or Further Taxes are
imposed because the Company has made any payment to the Agent or any Bank
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), and any liability (including penalties, interest, additions
to tax and expenses; provided, however, that the Company shall not be
responsible for any such penalty, interest or expense resulting from the gross
negligence or willful misconduct of the Agent or any Bank) arising therefrom or
with respect thereto, whether or not such Taxes, Other Taxes or Further Taxes
were correctly or legally asserted. Payment under this indemnification shall be
made within 30 days after the date the Bank or the Agent makes written demand
therefor.
(d) Within 30 days after the date of any payment by the Company of
Taxes, Other Taxes or Further Taxes, the Company shall furnish to each Bank or
the Agent the original or a certified copy of a receipt evidencing payment
thereof, or other evidence of payment satisfactory to such Bank or the Agent.
(e) The Company 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 Bank for the account of any Lending Office of such Bank:
(i) if the obligation to pay such additional amounts arose solely as
a result of such Bank's failure to comply with its obligations under
Section 9.10 in respect of such Lending Office;
(ii) if such Bank shall have delivered to the Company a Form 4224 in
respect of such Lending Office pursuant to Section 9.10, and such Bank
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 Company hereunder for the account of such Lending Office 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
-29-
force of law) after the date of delivery of such Form 4224; or
(iii) if the Bank shall have delivered to the Company a Form 1001 in
respect of such Lending Office pursuant to Section 9.10, and such Bank
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 Company hereunder for the account of such Lending Office 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 1001.
(f) If the Company is required to pay any amount to any Bank or the
Agent pursuant to Section 3.01(b) or (c), then such Bank 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 Company which may thereafter accrue, if such change in the sole
judgment of such Bank is not otherwise disadvantageous to such Bank.
(g) Each of the Banks and the Agent agrees that it will take all
reasonable actions by all usual means to maintain all exemptions, if any,
available to it from United States withholding taxes (whether available pursuant
to treaty, existing administrative waiver, or otherwise); provided, however,
-------- -------
that neither the Agent nor any Bank 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 Bank determines that the introduction of any
----------
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by such Bank to the Company through
the Agent, any obligation of that Bank to make Offshore Rate Loans shall be
suspended until such Bank notifies the Agent and the Company that the
circumstances giving rise to such determination no longer exist, and (a) if such
Bank may lawfully continue to maintain such Offshore Rate
-30-
Loans to the last day of the Interest Period with respect thereto, the Company
shall repay in full such Offshore Rate Loans, together with interest accrued
thereon, on the last day of the Interest Period thereof, or (b) if such Bank may
not lawfully continue to maintain such Offshore Rate Loans to the last day of
---
the Interest Period with respect thereto, such Offshore Rate Loans shall
automatically be converted into Base Rate Loans and the Company shall pay,
within five Business Days of such conversion, all interest accrued on such
Offshore Rate Loans prior to such conversion and all amounts required under
Section 3.04 in connection with such conversion.
3.03 Increased Costs and Reduction of Return. (a) If any Bank
----------------------------------------
determines that, due to either (i) the introduction announced after the date
hereof of or any change (other than any change by way of imposition of or
increase in reserve requirements included in the calculation of the Offshore
Rate or in respect of the assessment rate payable by any Bank to the FDIC for
insuring U.S. deposits or a change in the rate of taxation imposed on or
measured by a Bank's net income by the jurisdiction (or any political
subdivision thereof) under the laws of which such Bank is organized or maintains
a lending office) in or in the interpretation of any law or regulation or (ii)
the compliance by that Bank with any guideline or request from any central bank
or other Governmental Authority announced after the date hereof (whether or not
having the force of law), there shall be any increase in the cost to such Bank
of agreeing to make or making, funding or maintaining any Offshore Rate Loans,
then the Company shall be liable for, and shall from time to time, within 30
days after written notice from such Bank (with a copy of such demand to be sent
to the Agent), pay to the Agent for the account of such Bank, additional amounts
as are sufficient to compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction
announced after the date hereof of any Capital Adequacy Regulation, (ii) any
change announced after the date hereof in any Capital Adequacy Regulation, (iii)
any change announced after the date hereof in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or other
Governmental Authority charged with the interpretation or administration
thereof, or (iv) compliance by the Bank (or its Lending Office) or any
corporation controlling the Bank with any Capital Adequacy Regulation, affects
or would affect the amount of capital required to be maintained by the Bank or
any corporation controlling the Bank and (taking into consideration such Bank's
or such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment, Loans, credits or obligations
under this Agreement, then, upon demand of such Bank to the Company through the
Agent, the Company shall pay to
-31-
the Bank, from time to time as specified by the Bank, additional amounts
sufficient to compensate the Bank for such increase.
3.04 Funding Losses. The Company shall reimburse each Bank and hold
--------------
each Bank harmless from any loss or expense which the Bank may sustain or incur
as a consequence of: (a) the failure of the Company to make on a timely basis
any payment of principal of any Offshore Rate Loan, (b) the failure of the
Company to borrow, continue or convert a Loan after the Company has given (or is
deemed to have given) a Notice of Borrowing or a Notice of Conversion/
Continuation, (c) the failure of the Company to make any prepayment in
accordance with any notice delivered under Section 2.06, (d) the prepayment or
other payment (including after acceleration thereof) of an Offshore Rate Loan on
a day that is not the last day of the relevant Interest Period, or (e) the
automatic conversion under Section 2.04 or Section 3.02 of any Offshore Rate
Loan to a Base Rate Loan on a day that is not the last day of the relevant
Interest Period; including any such loss or expense arising from the liquidation
or reemployment of funds obtained by it to maintain its Offshore Rate Loans or
from fees payable to terminate the deposits from which such funds were obtained;
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.
3.05 Inability to Determine Rates. If either the Agent or the
----------------------------
Majority Banks determine (a) that for any reason adequate and reasonable means
do not exist for determining the Offshore Rate for any requested Interest Period
with respect to a proposed Offshore Rate Loan, or (b) that the Offshore Rate
applicable pursuant to Section 2.08(a) for any requested Interest Period with
respect to a proposed Offshore Rate Loan does not adequately and fairly reflect
the cost to the Agent or such Banks of funding such Loan, the Agent will
promptly so notify the Company and each Bank. Thereafter, the obligation of the
Banks to make or maintain Offshore Rate Loans, as the case may be, hereunder
shall be suspended until the Agent upon the instruction of the Majority Banks
revokes such notice in writing. Upon receipt of such notice, the Company may
revoke any Notice of Borrowing or Notice of Conversion/Continuation then
submitted by it. If the Company does not revoke such Notice, the Banks shall
make, convert or continue the Loans, as proposed by the Company, in the amount
specified in the applicable notice submitted by the Company, but such Loans
shall be made, converted or continued, as the case may be, as Base Rate Loans
instead of Offshore Rate Loans.
3.06 Certificates of Banks. Any Bank claiming reimbursement or
---------------------
compensation under this Article III shall
-32-
deliver to the Company (with a copy to the Agent) a certificate setting forth in
reasonable detail the amount payable to the Bank hereunder and such certificate
shall be conclusive and binding on the Company in the absence of manifest error;
provided, however, that the Company 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 Bank responsible for the administration of this Agreement knew
or reasonably should have known of such claim for reimbursement or compensation.
3.07 Replacement of Bank. (a) In the event that any Bank makes a
-------------------
demand for payment pursuant to Section 3.01 or 3.03, or any Bank has suspended
its funding of Offshore Loans pursuant to Section 3.02 or 3.05, the Company
shall have the right, if no Event of Default then exists, to replace such Bank
in accordance with this Section 3.07.
(b) If the Company determines to replace a Bank pursuant to this
Section 3.07, the Company shall have the right to replace such Bank with an
entity that is an Eligible Assignee (a "Replacement Bank"); provided that such
---------------- --------
Replacement Bank: (i) if it is not already a Bank, shall be reasonably
acceptable to the Agent, (ii) shall unconditionally agree in writing (with a
copy to the Agent) to purchase all of such Bank's rights hereunder and interest
in the Loans owing to such Bank and the Note held by such Bank without recourse
at the principal amount of such Note plus interest and fees accrued thereon to
the date of such purchase on a date therein specified, and (iii) shall, if such
Replacement Bank is not already a Bank, execute and deliver to the Agent an
Assignment and Acceptance substantially in the form of Exhibit F pursuant to
---------
which such Replacement Bank becomes a party hereto with a Commitment equal to
that of the Bank being replaced.
(c) Upon (i) satisfaction of the requirements set forth in Section
3.07(b), (ii) payment to such Bank by the Replacement Bank of the purchase price
in immediately available funds, (iii) payment to such Bank by the Company of all
requested increased costs or additional amounts accrued to the date of such
purchase which the Company is obligated to pay under Article III (including any
break funding costs under Section 3.04) and all other amounts owed by the
Company to such Bank hereunder (other than the principal of and interest on the
Loans of such Bank purchased by the Replacement Bank and interest and fees
accrued thereon to the date of purchase), and (iv) payment to the Agent by the
Replacement Bank or the Company of a non-refundable processing fee of $3,500,
the Replacement Bank shall constitute a "Bank" hereunder with a Commitment as so
specified and the Bank being so replaced shall no longer constitute a "Bank"
hereunder (and this Agreement shall be deemed to be amended to the extent, but
only to the extent, necessary to reflect the addition of the Replacement
-33-
Bank) and such Bank shall be relieved of its obligations hereunder.
(d) If, however, the conditions to replacement set forth in this
Section are for any reason not satisfied, or the proposed Replacement Bank for
any reason fails to purchase such rights and interest in accordance with the
terms hereof, the Company shall continue to be obligated to pay the increased
costs or additional amounts due to such Bank pursuant to Section 3.01 or 3.03,
as applicable.
(e) In no event shall the Agent or any Bank have any obligation to be
a Replacement Bank or to assist the Company in finding a Replacement Bank.
3.08 Survival. The agreements and obligations of the Company in
--------
Section 3.01 and 3.03 shall survive the payment of all other Obligations.
ARTICLE IV - CONDITIONS PRECEDENT
---------------------------------
4.01 Conditions to Effectiveness. The effectiveness of this Agreement
---------------------------
is subject to the condition that the Agent shall have received on or before the
Closing Date all of the following, in form and substance satisfactory to the
Agent and each Bank, and in sufficient copies for each Bank:
(a) Credit Agreement and Notes. This Agreement and the Notes
--------------------------
executed by each party thereto;
(b) Resolutions; Incumbency; Organization Documents.
-----------------------------------------------
(i) Copies of the resolutions of the board of directors of the
Company authorizing the transactions contemplated hereby, certified as of
the Closing Date by the Secretary of the Company;
(ii) A certificate of the Secretary of the Company certifying
the names and true signatures of the officers of the Company authorized
to execute, deliver and perform, as applicable, this Agreement and all
other Loan Documents to be delivered by it hereunder; and
(iii) the articles or certificate of incorporation and the
bylaws of the Company as in effect on the Closing Date, certified by the
Secretary of the Company as of the Closing Date;
(c) Good Standing. Good standing and tax good standing certificate
-------------
for the Company from the Secretary of State (or similar, applicable Governmental
Authority) of its
-34-
state of incorporation and each state where the Company is qualified to do
business as a foreign corporation as of a recent date;
(d) Legal Opinions. An opinion of (i) Xxxxx X. Xxxxxxx, Esquire,
--------------
Assistant General Counsel to the Company, addressed to the Agent and the Banks,
substantially in the form of Exhibit E-1 and (ii) Wilson, Sonsini, Xxxxxxxx &
-----------
Xxxxxx, outside counsel to the Company, addressed to the Agent and the Banks,
substantially in the form of Exhibit E-2;
-----------
(e) Payment of Fees. Evidence of payment by the Company of all
---------------
accrued and unpaid fees, costs and expenses to the extent then due and payable
under the fee letters referred to in Section 2.09 on the Closing Date, together
with Attorney Costs of BofA to the extent invoiced prior to or on the Closing
Date;
(f) Certificate. A certificate signed by a Responsible Officer,
-----------
dated as of the Closing Date, stating that: (i) the representations and
warranties contained in Article V are true and correct on and as of such date,
as though made on and as of such date; (ii) no Default or Event of Default
exists; and (iii) there has occurred since February 27, 1997, no event or
circumstance that has resulted or could reasonably be expected to result in a
Material Adverse Effect, other than the material adverse changes, if any, as may
have been disclosed in the written projections dated February 17, 1997 delivered
to the Banks prior to the date hereof;
(g) Disclosure Letter. The Disclosure Letter dated as of the Closing
-----------------
Date; and
(h) Other Documents. Such other approvals, opinions, documents or
---------------
materials as the Agent or any Bank may request.
4.02 Conditions to All Borrowings. The obligation of each Bank to
----------------------------
make any Loan to be made by it, or to continue or convert any Loan under Section
2.04, is subject to the satisfaction of the following conditions precedent on
the relevant Borrowing Date or Conversion/Continuation Date:
(a) Notice of Borrowing or Conversion/Continuation. The Agent shall
----------------------------------------------
have received a Notice of Borrowing or a Notice of Conversion/Continuation, as
applicable;
(b) Continuation of Representations and Warranties. The
----------------------------------------------
representations and warranties in Article V (other than the representations and
warranties contained in Sections 5.05 and 5.14) shall be true and correct on and
as of such Borrowing Date with the same effect as if made on and as of such
Borrowing Date (except to the extent such representations and
-35-
warranties expressly refer to an earlier date, in which case they shall be true
and correct as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall exist
-------------------
or shall result from such Borrowing.
Each Notice of Borrowing submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the date of each
such notice and as of each Borrowing Date that the conditions in this Section
4.02 are satisfied.
ARTICLE V - REPRESENTATIONS AND WARRANTIES
------------------------------------------
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence and Power. The Company and each of its
-----------------------------
Semiconductor Operations Subsidiaries: (a) is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, (b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets and to carry on its
business, (c) in the case of the Company, has the power and authority to
execute, deliver and perform its obligations under the Loan Documents, (d) is
duly qualified as a foreign corporation and is licensed and in good standing
under the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification or license,
and (e) is in compliance in all material respects with all Requirements of Law;
except, in each case referred to in subsection (b), (d) or (e), to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect.
5.02 Corporate Authorization; No Contravention. The execution,
-----------------------------------------
delivery and performance by the Company of this Agreement and each other Loan
Document to which the Company is party, have been duly authorized by all
necessary corporate action, and do not: (a) contravene the terms of any of the
Company's Organization Documents, (b) conflict with or result in any breach or
contravention of, or the creation of any Lien under, any document evidencing any
material Contractual Obligation to which the Company is a party or any order,
injunction, writ or decree of any Governmental Authority to which the Company or
its property is subject, or (c) violate any Requirement of Law.
5.03 Governmental Authorization. No approval, license, consent,
--------------------------
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental Authority is
-36-
necessary or required in connection with the execution, delivery or performance
by, or enforcement against, the Company or any of its Semiconductor Operations
Subsidiaries of the Agreement or any other Loan Document except as required by
this Agreement.
5.04 Binding Effect. This Agreement and each other Loan Document to
--------------
which the Company is a party constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their
respective terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability.
5.05 Litigation. Except as set forth in the Forms 10K for the fiscal
----------
year ended August 29, 1996 and the Forms 10Q for the fiscal quarters ended
November 28, 1996 and February 27, 1997, respectively, and in each case as filed
or amended and filed with the SEC by the Company, there are no actions, suits,
proceedings, claims or disputes pending, or to the best knowledge of the
Company, threatened or contemplated, at law, in equity, in arbitration or before
any Governmental Authority, against the Company, or any of its Semiconductor
Operations Subsidiaries or any of their respective properties which (a) purport
to affect or pertain to this Agreement or any other Loan Document, or any of the
transactions contemplated hereby or thereby, or (b) could reasonably be expected
to have a Material Adverse Effect. No injunction, writ, temporary restraining
order or any order of any nature has been issued by any court or other
Governmental Authority purporting to enjoin or restrain the execution, delivery
or performance of this Agreement or any other Loan Document, or directing that
the transactions provided for herein or therein not be consummated as herein or
therein provided.
5.06 No Default. No Default or Event of Default exists or would
----------
result from the incurring of any Obligations by the Company. As of the Closing
Date, neither the Company nor any Semiconductor Operations Subsidiary is in
default under or with respect to any Contractual Obligation in any respect
which, individually or together with all such defaults, could reasonably be
expected to have a Material Adverse Effect, or that would, if such default had
occurred after the Closing Date, create an Event of Default under Section
8.01(e).
5.07 ERISA Compliance. (a) Each Plan is in compliance in all
----------------
material respects with the applicable provisions of ERISA, the Code and other
federal or state law. Each Plan which is intended to qualify under Section
401(a) of the Code has received a favorable determination letter from the IRS
and to the best knowledge of the Company, nothing has occurred which would cause
the loss of such qualification. The
-37-
Company and each ERISA Affiliate has made all required contributions to any 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 best knowledge of Company,
threatened claims, actions or lawsuits, or action by any Governmental Authority,
with respect to any Plan which has resulted or could reasonably be expected to
result in a Material Adverse Effect. There has been no prohibited transaction or
violation of the fiduciary responsibility rules with respect to any Plan which
has resulted or could reasonably be expected to result in 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 Company 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 Company 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
Section 4201 or 4243 of ERISA with respect to a Multiemployer Plan, and (v)
neither the Company nor any ERISA Affiliate has engaged in a transaction that
could be subject to Section 4069 or 4212(c) of ERISA.
5.08 Use of Proceeds; Margin Regulations. The proceeds of the Loans
-----------------------------------
are to be used solely for the purposes set forth in and permitted by Section
6.12 and Section 7.08. Neither the Company nor any Subsidiary is generally
engaged in the business of purchasing or selling Margin Stock or extending
credit for the purpose of purchasing or carrying Margin Stock.
5.09 Title to Properties. The Company and each Semiconductor
-------------------
Operations Subsidiary have good and marketable title to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct of
their respective businesses, except for such defects in title as could not,
individually or in the aggregate, reasonably be expected to result in a Material
Adverse Effect. As of the Closing Date, the property of the Company and the
Semiconductor Operations Subsidiaries is subject to no Liens, other than
Permitted Liens .
5.10 Taxes. The Company and the Semiconductor Operations Subsidiaries
-----
have filed all Federal and other material tax returns and reports required to be
filed, and have paid all Federal and other material taxes, assessments, fees and
other governmental charges levied or imposed upon them or
-38-
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. There is no final
tax assessment against the Company or any Semiconductor Operations Subsidiary
that could reasonably be expected to result in a Material Adverse Effect.
5.11 Financial Condition.
-------------------
(a) The unaudited consolidated balance sheet of the Company and its
Subsidiaries dated February 27, 1997 and the related consolidated statements of
operations and cash flows for the interim periods then ended: (i) were prepared
in accordance with GAAP consistently applied throughout the period covered
thereby, except as otherwise expressly noted therein, subject to ordinary, good
faith year end adjustments, (ii) present fairly in all material respects the
consolidated financial condition of the Company and its Subsidiaries as of the
date thereof and results of operations for the period covered thereby, and (iii)
include or disclose all material indebtedness and other liabilities, direct or
contingent, of the Company and its Subsidiaries on a consolidated basis as of
the date thereof, including liabilities for taxes, material commitments and
material Contingent Obligations.
(b) The unaudited Semiconductor Operations Supplemental Schedules
dated February 27, 1997 for the interim periods then ended: (i) include amounts
based on estimates of annual amounts and are subject to changes in estimates and
ordinary year-end adjustments, (ii) present fairly, in all material respects,
the net assets and operations and cash flows of the Company and its
Semiconductor Operations Subsidiaries (on a combined basis) for the periods
covered thereby, on the basis specified and described in the notes to such
schedules, and (iii) were prepared on a basis consistent with the basic
consolidated financial statements of the Company and its Subsidiaries except as
disclosed in the notes thereto.
(c) Since February 27, 1997, there has been no Material Adverse
Effect other than the material adverse changes, if any, as may have been
disclosed in the written projections dated February 17, 1997 delivered to the
Banks prior to the date hereof.
5.12 Environmental Matters. The Company conducts in the ordinary
---------------------
course of business a review of the effect of existing Environmental Laws and
existing Environmental Claims on its business, operations and properties, and as
a result thereof the Company has reasonably concluded that it is in material
compliance with all such Environmental Laws and that any Environmental Claims
could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse
-39-
Effect.
5.13 Regulated Entities. None of the Company, any Person controlling
------------------
the Company, or any Subsidiary, is an "Investment Company" within the meaning of
the Investment Company Act of 1940. The Company is not subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act, any state public utilities code, or any other Federal
or state statute or regulation limiting its ability to incur Indebtedness.
5.14 Intellectual Property. Except as set forth in the Forms 10K for
---------------------
the fiscal year ended August 29, 1996 and the Forms 10Q for the fiscal quarters
ended November 28, 1996 and February 27, 1997, respectively, and in each case as
filed or amended and filed with the SEC by the Company, (a) the Company and its
Semiconductor Operations Subsidiaries own or are licensed to use or otherwise
have the right to use (or could obtain such ownership or licenses or rights on
terms not materially adverse to the Company and its Semiconductor Operations
Subsidiaries, taken as a whole, and under circumstances that could not
reasonably be expected to have a Material Adverse Effect) all of the patents,
trademarks, service marks, trade names, copyrights, contractual franchises and
other rights that are reasonably necessary for the operation of their
semiconductor operations business, and (b) there are no pending or, to the best
knowledge of Company, threatened claims that any slogan or other advertising
device, product, process, method, substance, part or other material now employed
by the Company or any Semiconductor Operations Subsidiary infringes upon any
rights held by any other Person, except where the consequences of such
infringement could not reasonably be expected to have a Material Adverse Effect.
5.15 Subsidiaries; Minority Interests. As of the Closing Date, the
--------------------------------
Company has no Subsidiaries other than those specifically disclosed in part (a)
of Schedule 5.15 to the Disclosure Letter and has no equity investments in any
other corporation or entity in excess of $10,000,000, individually, other than
those specifically disclosed in part (b) of Schedule 5.15 to the Disclosure
Letter. No Material Semiconductor Operations are conducted, individually or in
the aggregate, by Subsidiaries which are not Semiconductor Operations
Subsidiaries. All Semiconductor Operations Subsidiaries are Wholly-Owned
Subsidiaries, and all Wholly-Owned Subsidiaries which conduct any active
semiconductor operations are Semiconductor Operations Subsidiaries.
5.16 Insurance. The properties of the Company and its Semiconductor
---------
Operations Subsidiaries are insured with financially sound and reputable
insurance companies not Affiliates of the Company, in such amounts, with such
deductibles and covering such risks as are customarily carried
-40-
by companies engaged in similar businesses and owning similar properties in
localities where the Company or such Semiconductor Operations Subsidiaries
operate.
5.17 Swap Obligations. Neither the Company nor any of its
----------------
Semiconductor Operations Subsidiaries has incurred any outstanding obligations
under any Swap Contracts, other than Permitted Swap Obligations. The Company
has undertaken its own independent assessment of its consolidated assets,
liabilities and commitments and has considered appropriate means of mitigating
and managing risks associated with such matters and has not relied on any swap
counterparty or any Affiliate of any swap counterparty in determining whether to
enter into any Swap Contract.
5.18 Full Disclosure. None of the representations or warranties made
---------------
by the Company in the Loan Documents as of the date such representations and
warranties are made or deemed made, and none of the statements contained in any
exhibit, report, written statement or certificate furnished by or on behalf of
the Company or any Semiconductor Operations Subsidiary in connection with the
Loan Documents (including the offering and disclosure materials delivered by or
on behalf of the Company to the Banks prior to the Closing Date, taken together
with all such exhibits, reports, written statements and certificates filed or
amended and filed by the Company with the SEC, but excluding the items listed in
Section 5.19), contains any untrue statement of a material fact or omits any
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they are made, not
misleading as of the time when made or delivered. In addition, any factual
information, forecasts and projections by industry analysts, including those set
forth in the information memorandum distributed to the Banks prior to closing,
have been developed solely by such analysts and are not adopted by the Company,
notwithstanding their inclusion in such information memorandum, and the Company
makes no representations or warranties concerning same, unless such
representation or warranty is separately made by the Company.
5.19 Projections. All projections (including the projections dated
-----------
February 17, 1997 delivered to the Banks prior to the date hereof), forward-
looking information or other similar or related information furnished by or on
behalf of the Company in connection with this Agreement were prepared in good
faith on the basis of the assumptions stated therein, which assumptions were
fair in the light of conditions existing at the time of preparation of such
forecasts, and represented, at the time of preparation, the Company's reasonable
estimate of its future financial performance; provided, however, that such
-------- -------
projections and other forward-looking information are not to be viewed as
factual and actual results during the period or
-41-
period covered thereby may differ from the projected or forecasted results.
ARTICLE VI - AFFIRMATIVE COVENANTS
----------------------------------
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation (other than indemnity obligations which remain inchoate at such
time) shall remain unpaid or unsatisfied, unless the Majority Banks waive
compliance in writing:
6.01 Financial Statements. The Company shall deliver to the Agent, in
--------------------
form and detail satisfactory to the Agent and the Majority Banks, with
sufficient copies for each Bank:
(a) promptly after becoming available, but not later than 90 days after
the end of each fiscal year (commencing with the fiscal year ended August 28,
1997), a copy of the audited consolidated balance sheet of the Company and its
Subsidiaries as at the end of such year and the related consolidated statements
of operations and cash flows for such year, setting forth in each case in
comparative form the figures for the previous fiscal year, together with the
related Semiconductor Operations Supplemental Schedules, and accompanied by the
opinion of Coopers & Xxxxxxx, LLP or another nationally-recognized independent
public accounting firm ("Independent Auditor") which opinion shall state that
-------------------
(i) such consolidated financial statements present fairly in all material
respects the financial position of the Company and its Subsidiaries on a
consolidated basis as of the date thereof and the results of operations for the
periods indicated in conformity with GAAP, except as otherwise indicated therein
and (ii) such related Semiconductor Operations Supplemental Schedules were
prepared on a basis consistent with the basic consolidated financial statements
of the Company and its Subsidiaries except as disclosed in the notes thereto and
the information therein is fairly stated in all material respects in relation to
the basic consolidated financial statements taken as a whole except as
specifically noted therein. Such financial statements shall be accompanied by a
certificate of a Responsible Officer which shall state that such Semiconductor
Operations Supplemental Schedules present fairly, in all material respects, the
net assets and operations and cash flows of the Company and its Semiconductor
Operations Subsidiaries (on a combined basis) for the periods covered thereby,
on the basis specified and described in the notes to such schedules. The Company
will not place restrictions on the examinations of the auditors or any material
portion of the Company's or any Subsidiary's records; and
(b) promptly after becoming available, but not later
-42-
than 45 days after the end of each of the first three fiscal quarters of each
fiscal year (commencing with the fiscal quarter ended May 29, 1997), a copy of
the unaudited consolidated balance sheet of the Company and its Subsidiaries as
of the end of such quarter and the related consolidated statements of operations
for the period commencing on the first day and ending on the last day of such
quarter, and statement of cash flows for the year to date, together with the
related Semiconductor Operations Supplemental Schedules, accompanied by a
certificate of a Responsible Officer which shall state that (i) such unaudited
consolidated financial statements (A) fairly present in all material respects,
in accordance with GAAP (subject to ordinary, good faith year-end adjustments,
the financial position and the results of operations of the Company and its
Subsidiaries on a consolidated basis, and (B) include or disclose all material
indebtedness and other liabilities, direct or contingent, of the Company and its
Subsidiaries on a consolidated basis as of the date thereof, including
liabilities for taxes, material commitments and material Contingent Obligations,
and (ii) such related Semiconductor Operations Supplemental Schedules (A)
include amounts based on estimates of annual amounts and are subject to changes
in estimates and ordinary year-end adjustments, (B) present fairly, in all
material respects, the net assets and operations and cash flows of the Company
and its Semiconductor Operations Subsidiaries (on a combined basis) for the
periods covered thereby, on the basis specified and described in the notes to
such schedules, and (C) were prepared on a basis consistent with the basic
consolidated financial statements of the Company and its Subsidiaries except as
disclosed in the notes thereto.
6.02 Certificates; Other Information. The Company shall furnish to
-------------------------------
the Agent, with sufficient copies for each Bank:
(a) concurrently with the delivery of the financial statements referred
to in Sections 6.01(a) and (b), a Compliance Certificate executed by a
Responsible Officer;
(b) promptly after becoming available, but not later than 20 days after
the filing thereof with the SEC or the delivery thereof to its Shareholders, as
applicable, copies of all annual reports and proxy statements that the Company
sends to its shareholders, and copies of all financial statements and regular,
periodical or special reports (including Forms 10K, 10Q, 8K, S-1 and S-3) that
the Company or any Subsidiary may make to, or file with, the SEC; and
(c) promptly, such additional information regarding the business,
financial or corporate affairs of the Company or any Semiconductor Operations
Subsidiary as the Agent, at the request of any Bank, may from time to time
reasonably request in writing.
-43-
6.03 Notices. The Company shall promptly, after any Responsible
-------
Officer becomes aware thereof or should have become aware thereof, notify the
Agent and each Bank:
(a) of the occurrence of any Default or Event of Default, and of the
occurrence or existence of any event or circumstance that could reasonably be
expected to become a Default or Event of Default;
(b) of the occurrence of any breach or termination of any material
Contractual Obligation pursuant to which the Company or any of its Material
Semiconductor Operations Subsidiaries is licensed or otherwise has the right to
use any patented technology, trademarks, service marks, trade names, copyrights
or contractual franchises that are reasonably necessary for the operation of
their respective businesses ("Intellectual Property Licenses"); or the receipt
------------------------------
of any written claim with respect to any Intellectual Property License in which
the licensor, seller or grantor of such intellectual property rights states its
intention (i) to terminate such Intellectual Property License, (ii) to require
the Company or any Semiconductor Operations Subsidiary to cease using such
intellectual property rights (or any material portion thereof), or to cease
marketing or selling products developed based on intellectual property rights
(or any material portion thereof) covered by such Intellectual Property License,
or (iii) to cease performing its obligations thereunder, and which, in each of
the cases set forth in clauses (i), (ii) and (iii), could reasonably be expected
to have a Material Adverse Effect;
(c) of the commencement of, or any material development in, any
litigation, arbitration or other similar proceeding affecting the Company or any
Semiconductor Operations Subsidiary with respect to any Intellectual Property
License, in which injunctive or similar relief (whether temporary or permanent)
is sought and which could reasonably be expected to have a Material Adverse
Effect;
(d) of any other matter that has resulted or could reasonably be expected
to result in a Material Adverse Effect, which matters include, for example (but
not by way of limitation): (i) breach or non-performance of, or any default
under, a Contractual Obligation of the Company or any Semiconductor Operations
Subsidiary, (ii) any dispute, litigation, investigation, proceeding or
suspension between the Company or any Semiconductor Operations Subsidiary and
any Governmental Authority, or (iii) the commencement of, or any material
development in, any litigation or proceeding affecting the Company or any
Semiconductor Operations Subsidiary, including pursuant to any applicable
Environmental Laws;
(e) of the occurrence of any of the following events
-44-
affecting the Company or any ERISA Affiliate (but in no event more than 10 days
after such event), and deliver to the Agent and each Bank a copy of any notice
with respect to such event that is filed with a Governmental Authority and any
notice delivered by a Governmental Authority to the Company or any ERISA
Affiliate with respect to such event: (i) an ERISA Event, (ii) a material
increase in the Unfunded Pension Liability of any Pension Plan, (iii) the
adoption of, or the commencement of contributions to, any Plan subject to
Section 412 of the Code by the Company or any ERISA Affiliate, or (iv) the
adoption of any amendment to a Plan subject to Section 412 of the Code, if such
amendment results in a material increase in contributions or Unfunded Pension
Liability;
(f) of any material change in accounting policies or financial reporting
practices by the Company and its Subsidiaries on a consolidated basis or the
Company and its Semiconductor Operations Subsidiaries on a combined basis;
provided that the description of any such changes set forth in the Company's
filings with the SEC, or the notes to any financial statements or Semiconductor
Operations Supplemental Schedules included therein, when delivered to Agent and
the Banks, shall constitute notice sufficient under this subsection (f);
(g) of the issuance of any Permitted Subordinated Debt and any Senior
Unsecured Debt, together with a copy of any written instrument evidencing, or
which is proposed to evidence, such Indebtedness; and
(h) of any existing Subsidiary that is not a Wholly-Owned Subsidiary that
conducts semiconductor operations (i) becoming a Wholly-Owned Subsidiary, or
(ii) having Material Semiconductor Operations.
Each notice under this Section (other than under subsections (f) and (g))
shall be accompanied by a written statement by a Responsible Officer setting
forth details of the occurrence referred to therein, and stating what action the
Company or any affected Subsidiary proposes to take with respect thereto and at
what time. Each notice under Section 6.03(a) shall describe with particularity
any and all sections or clauses of this Agreement or other Loan Document that
have been (or could reasonably be expected to be) breached or violated.
6.04 Preservation of Corporate Existence, Etc. The Company shall, and
----------------------------------------
shall cause each Material Semiconductor Operations Subsidiary to: (a) preserve
and maintain in full force and effect its corporate existence and good standing
under the laws of its state or jurisdiction of incorporation, except, with
respect to any Material Semiconductor Operations Subsidiary, in connection with
transactions permitted by
-45-
Section 7.03 or 7.04; (b) preserve and maintain in full force and effect all
material governmental rights, privileges, qualifications, permits, licenses and
franchises necessary or desirable in the normal conduct of its business, except
in connection with transactions permitted by Section 7.03 or 7.04; (c) use
reasonable efforts, in the ordinary course of business, to preserve its business
organization and goodwill, except, with respect to any Material Semiconductor
Operations Subsidiary, in connection with transactions permitted by Section 7.03
or 7.04; and (d) preserve or renew all of its registered patents, trademarks,
trade names and service marks, except where the non-preservation of which could
not reasonably be expected to have a Material Adverse Effect.
6.05 Maintenance of Property. The Company shall maintain, and shall
-----------------------
cause each Material Semiconductor Operations Subsidiary to maintain, and
preserve all its property which is used or useful in its business in good
working order and condition, ordinary wear and tear excepted and make all
reasonably 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.
6.06 Insurance. The Company shall maintain, and shall cause each
---------
Semiconductor Operations Subsidiary to maintain, with financially sound and
reputable independent insurers or through self-insurance, insurance with respect
to its properties and business against loss or damage of the kinds customarily
insured 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.
6.07 Payment of Obligations. The Company shall, and shall cause each
----------------------
Semiconductor Operations Subsidiary to, pay and discharge as the same shall
become due and payable (or within any applicable grace period), all their
respective material obligations and liabilities, which matters may include, for
example (but not by way of limitation): (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 Company or
such Semiconductor Operations Subsidiary, and (b) all lawful claims which, if
unpaid, would by law become a Lien upon its property, except for Permitted
Liens.
6.08 Compliance with Laws. The Company shall comply, and shall cause
--------------------
each Material Semiconductor Operations Subsidiary to comply, in all material
respects, with all Requirements of Law of any Governmental Authority having
jurisdiction over it or its business (including the Federal
-46-
Fair Labor Standards Act), except such as may be contested in good faith or as
to which a bona fide dispute may exist.
6.09 Compliance with ERISA. The Company shall, and shall cause each
---------------------
of its ERISA Affiliates to: (a) maintain each Plan in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law, (b) cause each Plan which is qualified under Section
401(a) of the Code to maintain such qualification, and (c) make all required
contributions to any Plan subject to Section 412 of the Code.
6.10 Inspection of Property and Books and Records. (a) The Company
--------------------------------------------
shall maintain and shall cause each Semiconductor Operations Subsidiary to
maintain financial books of record and account sufficient to permit the Company
to prepare financial statements in accordance with GAAP.
(b) The Company shall permit, and shall cause each Semiconductor
Operations Subsidiary to permit, representatives and independent contractors of
the Agent (i) to visit and inspect any of their respective material properties,
(ii) to examine their respective financial records, and make copies thereof or
abstracts therefrom, and (iii) to discuss their respective affairs, finances and
accounts with their respective directors, officers, and independent public
accountants, all at the expense of the Banks and at such reasonable times during
normal business hours and as often as may be reasonably desired, upon reasonable
advance written notice to the Company; provided, however, that when an Event of
-------- -------
Default exists, the Agent or any Bank may do any of the foregoing at the expense
of the Company at any time during normal business hours and without advance
written notice. At any time when no Event of Default has occurred and is
continuing, any such representative, independent contractor or independent
public accountants (other than employees of the Agent) selected by the Agent to
perform such inspections or audits, must be reasonably acceptable to the
Company.
(c) Notwithstanding the foregoing, while no Event of Default exists,
neither the Company nor any of its Semiconductor Operations Subsidiaries will be
required to disclose, permit the inspection, examination, copying or making
extracts of, or discussions 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 Agent or any Bank (or
designated representative) is then prohibited by law or any agreement binding
upon the Company or such Semiconductor Operations Subsidiary that was not
entered into by the Company or such Semiconductor Operations Subsidiary for the
primary purpose of concealing information from Agent and the Banks or evading
the provisions of this Agreement.
-47-
6.11 Environmental Laws. The Company shall, and shall cause each
------------------
Material Semiconductor Operations Subsidiary to, conduct its operations and keep
and maintain its property in compliance in all material respects with all
Environmental Laws.
6.12 Use of Proceeds. The Company shall use the proceeds of the Loans
---------------
for working capital and other general corporate purposes not in contravention of
any Requirement of Law or of any Loan Document.
6.13 Ranking; Designated Senior Indebtedness. The Company shall take,
---------------------------------------
or cause to be taken, all actions necessary to ensure that the Obligations are
and continue to rank at least pari passu in right of payment with all other
---- -----
unsecured Indebtedness of the Company. The Obligations shall be deemed
"Designated Senior Indebtedness" for purposes of Permitted Subordinated Debt
issued under the Subordinated Note Indenture.
6.14 New Semiconductor Operations Subsidiaries. The Company shall
-----------------------------------------
cause each new Wholly-Owned Subsidiary which from time to time conducts any
active semiconductor operations to be included as a Semiconductor Operations
Subsidiary in the Semiconductor Operations Supplemental Schedules.
ARTICLE VII - NEGATIVE COVENANTS
--------------------------------
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation (other than indemnity obligations which remain inchoate at such
time) shall remain unpaid or unsatisfied, unless the Majority Banks waive
compliance in writing:
7.01 Limitation on Liens. The Company shall not, and shall not suffer
-------------------
or permit any Semiconductor Operations Subsidiary to, directly or indirectly,
make, create, incur, assume or suffer to exist any Lien upon or with respect to
any part of its properties, revenues or assets, whether now owned or hereafter
acquired, other than the following ("Permitted Liens"):
---------------
(a) Liens existing on the Closing Date and set forth in Schedule 7.01 to
the Disclosure Letter securing Indebtedness outstanding on such date (including
any such Lien securing Indebtedness that is renewed, extended or refunded after
the Closing Date, provided that the principal amount of such Indebtedness
outstanding at the time of such renewal, extension or refunding is not increased
and such Lien is not extended to any other property, other than replacements or
substitutions for such property);
-48-
(b) Liens created under any Loan Document;
(c) Liens for taxes, fees, assessments or other governmental charges
which are not delinquent or remain payable without penalty, or to the extent
that non-payment thereof is permitted by Section 6.07;
(d) Liens consisting of carriers', warehousemen's, mechanics',
landlords', materialmen's, repairmen's or other similar Liens arising in the
ordinary course of business which are not delinquent or remain payable without
penalty or which are being contested in good faith and by appropriate
proceedings, which proceedings are for the purpose of preventing the forfeiture
or sale of the property subject thereto;
(e) Liens (other than any Lien imposed by ERISA) consisting of pledges or
deposits required in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other social security legislation;
(f) Liens securing (i) the non-delinquent performance of bids, trade
contracts (other than for borrowed money), leases, statutory obligations, (ii)
contingent obligations with respect to surety and appeal bonds, or letters of
credit issued in lieu thereof, and (iii) other non-delinquent obligations of a
like nature; in each case, incurred in the ordinary course of business, provided
all such Liens in the aggregate could not reasonably be expected to result (even
if enforced) in a Material Adverse Effect;
(g) Liens consisting of judgment or judicial attachment liens, arising in
circumstances not constituting an Event of Default under Section 8.01(j);
(h) Liens consisting of easements, rights-of-way, restrictions and other
similar encumbrances incurred in the ordinary course of business (including the
easements, rights-of-way, restrictions and other similar encumbrances incurred
in connection with the interchange and new road to be located on the Company's
headquarters property in Boise, Idaho) which, in the aggregate, do not
materially detract from the value of the property subject thereto or interfere
with the ordinary conduct of the businesses of the Company and its Semiconductor
Operations Subsidiaries taken as a whole;
(i) Liens on (i) assets of corporations which become Semiconductor
Operations Subsidiaries after the date of this Agreement, (ii) assets which are
acquired at the time a corporation merges with or into the Company or a
Semiconductor Operations Subsidiary pursuant to Section 7.04, and (iii) assets
acquired by the Company or a Semiconductor Operations
-49-
Subsidiary pursuant to Section 7.05; provided, however, that such Liens existed
-------- -------
at the time the respective corporations became Semiconductor Operations
Subsidiaries or at the time the assets were acquired and were not created in
anticipation thereof;
(j) purchase money and other security interests, and liens in the nature
of capital leases, in personal or real property where the security interests do
not extend beyond the property purchased or financed, any replacements,
additions, attachments and accessions thereto, and the proceeds (including
insurance proceeds) thereof and the amount of indebtedness secured thereby does
not materially exceed the value of the property and, in the aggregate, the
amount of all indebtedness so secured does not at any time exceed 20% of the
Company's and the Semiconductor Operations Subsidiaries' combined net property,
plant and equipment (as reflected on the Semiconductor Operations Supplemental
Schedules) as of the last day of the fiscal quarter most recently ended prior
thereto (including any such Lien securing any such indebtedness that is renewed,
extended or refunded, provided that the principal amount of such indebtedness
outstanding at the time of such renewal, extension or refunding is not
materially increased and such Lien is not extended to any other property);
(k) Liens arising solely by virtue of any statutory, common law or
contractual 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 Company or any Semiconductor Operations Subsidiary in excess of
those set forth by regulations promulgated by the FRB, and (ii) such deposit
account is not intended by the Company or any Semiconductor Operations
Subsidiary to provide collateral to the depository institution;
(l) Liens securing extensions of credit made by the Company or another
Semiconductor Operations Subsidiary to such Semiconductor Operations
Subsidiaries, to the extent such extensions of credit are permitted by Section
7.06;
(m) Liens granted after the Closing Date, pursuant to documentation in
effect on the Closing Date, in favor of United States National Bank of Oregon in
connection with letters of credit issued for the Company's account in a maximum
aggregate principal amount of $15,000,000;
(n) leases and subleases of, and licenses and sublicenses with respect
to, property where the Company or a Semiconductor Operations Subsidiary is the
lessor or licensor (or sublessor or sublicensor); provided that such leases,
-50-
subleases, licenses and sublicenses do not in the aggregate materially interfere
with the business of the Company and its Semiconductor Operations Subsidiaries
taken as a whole;
(o) Liens with respect to operating leases otherwise permitted by this
Agreement; provided, that such Liens encumber only property financed or leased,
--------
any replacements, additions, attachments and accessions thereto, and the
proceeds (including insurance proceeds) thereof;
(p) Liens incurred in the ordinary course of business used to secure cash
reserves that have been deposited with the Company or its Semiconductor
Operations Subsidiaries by customers to obtain the rights to delivery of future
goods or services;
(q) Liens consisting of pledges of cash collateral or government
securities to secure on a xxxx-to-market basis Permitted Swap Obligations only,
provided that the counterparty to any Swap Contract relating to any such
Permitted Swap Obligation is under a similar requirement to deliver similar
collateral from time to time to the Company or the Semiconductor Operations
Subsidiary party thereto on a xxxx-to-market basis; provided, however, that, as
-------- -------
of any determination date, the amount of all such outstanding secured Permitted
Swap Obligations, together with all outstanding secured Indebtedness permitted
by subsection (r) below, shall not in the aggregate exceed 5% of Combined
Tangible Assets;
(r) Liens incurred in the ordinary course of business securing
Indebtedness other than borrowed money; provided, however, that the amount of
-------- -------
all such outstanding secured Indebtedness, together with all outstanding secured
Permitted Swap Obligations permitted by subsection (q) above, shall not in the
aggregate exceed 5% of Combined Tangible Assets as of the end of the most recent
fiscal quarter;
(s) Liens securing Indebtedness permitted by Section 7.06(n); and
(t) Liens in favor of a trustee granted pursuant to any Permitted
Subordinated Debt.
7.02 Exclusive Negative Pledge. The Company shall not, and shall not
-------------------------
permit any of its Semiconductor Operations Subsidiaries to, enter into any
Contractual Obligation (other than this Agreement) which prohibits the creation
or assumption of any Lien upon or with respect to any part of such Persons
properties or assets (including intangible assets, such as patents and
trademarks, and the capital stock of Semiconductor Operations Subsidiaries)
(such Contractual Obligation, a "Negative Pledge"), whether now owned or
---------------
hereafter acquired, other than:
-51-
(a) Negative Pledges in favor of the Company or a Semiconductor
Operations Subsidiary with respect to the assets of a Semiconductor Operations
Subsidiary in connection with extensions of credit made by the Company or a
Semiconductor Operations Subsidiary to such Semiconductor Operations Subsidiary,
to the extent such extensions of credit are permitted by Section 7.07;
(b) Negative Pledges granted in connection with extensions of credit
(whether or not guaranteed by the Company or a Semiconductor Operations
Subsidiary) made available by Persons other than the Company to a Semiconductor
Operations Subsidiary to the extent such extensions of credit are permitted by
Sections 7.06(h);
(c) Negative Pledges granted in connection with Permitted Subordinated
Debt permitted by Section 7.06(j) and Senior Unsecured Debt permitted by Section
7.06(k); and
(d) Negative Pledges granted in connection with real or personal property
financing arrangements to the extent permitted by Section 7.01(j), in favor of
the Person providing such financing, pursuant to which the Company or a
Semiconductor Operations Subsidiary, as applicable, agrees not to create or
assume any Lien upon or with respect to the real property and equipment being
financed (together with replacements, additions, attachments, accessions and
proceeds (including insurance proceeds) thereof and accessories thereto).
7.03 Disposition of Assets. The Company shall not, and shall not
---------------------
suffer or permit any Semiconductor Operations Subsidiary to, directly or
indirectly, sell, assign, lease, convey, transfer or otherwise dispose of
(whether in one or a series of transactions) any property (including accounts
and notes receivable, with or without recourse) (together, "Dispositions") or
------------
enter into any agreement to do any of the foregoing, except for:
(a) Dispositions by a Semiconductor Operations Subsidiary of all or
substantially all of its assets (upon voluntary dissolution, liquidation or
otherwise) to the Company or any other Person provided that if such a
--------
Disposition is to a Person other than the Company or another Semiconductor
Operations Subsidiary (or a Wholly-Owned Subsidiary which, immediately following
such dissolution or liquidation, will become a Semiconductor Operations
Subsidiary), such Disposition would be a Distribution permitted under Section
7.09(d);
(b) Dispositions of assets in the ordinary course of business (the
parties hereby agreeing that Dispositions of inventory, or used, worn-out or
surplus equipment, or equipment
-52-
pursuant to Permitted Sale-Leaseback Transactions shall be considered to be
Dispositions in the ordinary course of business);
(c) Dispositions of immaterial ($1,000,000 or less individually) assets
outside the ordinary course of business;
(d) Dispositions of material (greater than $1,000,000 individually)
assets outside the ordinary course of business; provided, that the aggregate
--------
fair market value of all material assets so sold, together with the aggregate
fair market value of any material (greater than $1,000,000 individually) assets
disposed of pursuant to sale-leaseback transactions which do not constitute
Permitted Sale-Leaseback Transactions, shall not exceed 10% of Combined Tangible
Assets as of the end of the most recent fiscal quarter; and
(e) Dispositions of non semiconductor operations assets, including
dispositions of the capital stock of Subsidiaries that are not Semiconductor
Operations Subsidiaries.
7.04 Consolidations and Mergers. The Company shall not, and shall not
--------------------------
suffer or permit any Semiconductor Operations Subsidiary to, liquidate, dissolve
or reorganize, or merge or consolidate with or into any other Person, except
that:
(a) the Company or any Semiconductor Operations Subsidiary may merge,
consolidate or reorganize with or into another Person (other than the Company or
another Subsidiary) in connection with an Acquisition permitted pursuant to
Section 7.05(g) or (o), provided, that (i) no Default or Event of Default has
--------
occurred or would occur as a result thereof on a pro forma basis, (ii) in the
case of a transaction involving the Company, the Company shall be the surviving
corporation, and (iii) in the case of a transaction involving a Semiconductor
Operations Subsidiary, the Semiconductor Operations Subsidiary shall be the
surviving corporation;
(b) any Semiconductor Operations Subsidiary may merge, consolidate or
reorganize with or into the Company or a Semiconductor Operations (or a Wholly-
Owned Subsidiary which, immediately following such merger or consolidation, will
become a Semiconductor Operations Subsidiary), provided that the Company or such
--------
Wholly-Owned Subsidiary shall be the continuing or surviving corporation;
(c) any Semiconductor Operations Subsidiary may consolidate or merge with
or into any other Semiconductor Operations Subsidiary; and
(d) any Semiconductor Operations Subsidiary may
-53-
liquidate or dissolve as permitted under Section 7.03(a).
7.05 Loans and Investments. The Company shall not purchase or
---------------------
acquire, or suffer or permit any Semiconductor Operations Subsidiary to purchase
or acquire, any capital stock, equity interest, or any obligations or other
securities of, or any interest in, any Person, or make any Acquisitions, or make
any advance, loan, extension of credit or capital contribution to or any other
investment in, any Person including any Affiliate of the Company (together,
"Investments"), except for:
-----------
(a) Investments held by the Company or a Semiconductor Operations
Subsidiary in the form of cash equivalents and liquid investments;
(b) Investments in the nature of accounts receivable or notes receivable
arising from the sale or lease of goods or services or licensing of property in
the ordinary course of business;
(c) Investments made by the Company to or in its Semiconductor Operations
Subsidiaries, or by a Semiconductor Operations Subsidiary to or in the Company
or another Semiconductor Operations Subsidiary, to the extent permitted by
Section 7.07;
(d) Investments in Micron Electronics, Inc. provided, however, that the
-------- -------
aggregate principal amount of all advances, loans and other extensions of credit
to Micron Electronics, Inc. outstanding at any time plus the cumulative amount
----
of all equity contributions in Micron Electronics, Inc. since the Closing Date
shall not exceed $100,000,000 in the aggregate;
(e) Investments in non Semiconductor Operations Subsidiaries (other than
Micron Electronics, Inc.); provided, however, that the aggregate principal
-------- -------
amount of all outstanding advances, loans and other extensions of credit plus
----
the cumulative amount of all equity contributions since the Closing Date in
connection with such Investments shall not exceed an amount equal to 5% of
Combined Tangible Net Worth as of the last day of the most recently ended fiscal
quarter;
(f) incidental loans or advances to employees in the ordinary course of
business or as part of their overall compensation package;
(g) Investments incurred in order to consummate Acquisitions, to acquire
minority interests or to acquire minority interests in a Subsidiary that is not
a Wholly-Owned Subsidiary; provided, however, that (i) the Investment is being
-------- -------
made in a Person that is engaged in a line of business that
-54-
would be permitted under Section 7.12 if such Person were a Semiconductor
Operations Subsidiary, (ii) no Default or Event of Default has occurred or would
occur as a result of such Investment on a pro forma basis, (iii) such
Investments are undertaken in accordance with all applicable Requirements of
Law, (iv) if such Investment constitutes an Acquisition, the prior, effective
written consent or approval to such Investment of the board of directors or
equivalent governing body of the Person acquired or in which the Investment is
being made is obtained, and (v) the cumulative aggregate consideration paid
(including the assumption of debt), the aggregate principal amount of all
outstanding advances, loans and other extension of credit, plus the cumulative
----
amount of all equity contributions made since the Closing Date in connection
with such Investments shall not exceed an amount equal to 25% of Combined
Tangible Assets as of the last day of the most recently ended fiscal quarter;
(h) Investments consisting of guarantees by the Company and its
Semiconductor Operations Subsidiaries of the obligations of vendors and
suppliers of the Company or its Semiconductor Operations Subsidiaries entered
into in the ordinary course of business;
(i) Investments constituting Permitted Swap Obligations or payments or
advances under Swap Contracts relating to Permitted Swap Obligations;
(j) Investments existing on the Closing Date;
(k) Investments received in settlement of delinquent obligations or
disputes, including Investments received in connection with the bankruptcy or
reorganization of third Persons;
(l) Investments consisting of deposit accounts maintained in the ordinary
course of business;
(m) Investments accepted in connection with Dispositions of assets
permitted under Section 7.03;
(n) Any Investment made in connection with a transaction permitted under
Section 7.04; and
(o) Investments not described or covered by any of the foregoing
subsections (a) through (n) of this Section; provided that (i) no Default or
--------
Event of Default has occurred or would occur as a result of such Investment on a
pro forma basis, (ii) such Investments are undertaken in accordance with all
applicable Requirements of Law, (iii) if such Investment constitutes an
Acquisition, the prior, effective written consent or approval to such Investment
of the board of directors or equivalent governing body of the Person acquired
-55-
or in which the Investment is being made is obtained, and (iv) the cumulative
aggregate consideration paid (including the assumption of debt), the aggregate
principal amount of all outstanding advances, loans and other extension of
credit, plus the cumulative amount of all equity contributions made since the
----
Closing Date in connection with such Investments shall not exceed an amount
equal to 2% of Combined Tangible Assets as of the last day of the most recently
ended fiscal quarter.
7.06 Limitation on Indebtedness and Contingent Obligations. The
-----------------------------------------------------
Company shall not, and shall not suffer or permit any Semiconductor Operations
Subsidiary to, create, incur, assume, suffer to exist, or otherwise become or
remain directly or indirectly liable with respect to, any Indebtedness or
Contingent Obligations, except, without duplication:
(a) Indebtedness incurred pursuant to this Agreement;
(b) Indebtedness and Contingent Obligations existing on the Closing Date
and set forth in Schedule 7.06 to the Disclosure Letter;
(c) Contingent Obligations in the form of endorsements for collection or
deposit in the ordinary course of business;
(d) Indebtedness with respect to cash deposited by customers to obtain
the rights to delivery of future goods or services;
(e) Permitted Swap Obligations;
(f) Indebtedness permitted by Section 7.01(j) or incurred in connection
with deferred purchases of equipment;
(g) Indebtedness incurred in connection with Investments permitted by
Section 7.05(c);
(h) Indebtedness incurred by Semiconductor Operations Subsidiaries from
Persons other than the Company or another Semiconductor Operations Subsidiary up
to a maximum aggregate principal amount outstanding of $50,000,000;
(i) Indebtedness with respect to deferred compensation or employee
benefit programs incurred in the ordinary course of business or in connection
with the discontinuance or sale of businesses or facilities;
(j) Subject to Section 7.10, Permitted Subordinated Debt incurred by the
Company in an aggregate principal amount not to exceed at any time $500,000,000;
-56-
(k) Senior Unsecured Debt incurred by the Company in an aggregate
principal amount not to exceed at any time $300,000,000;
(l) Indebtedness or Contingent Obligations incurred in connection with
the bonding requirements of Micron Construction, Inc.;
(m) Indebtedness incurred in the ordinary course of business by the
Company or any Semiconductor Operations Subsidiary in connection with the
payment of foreign currency amounts owed to the Company or any Semiconductor
Operations Subsidiary by a customer;
(n) Indebtedness consisting of obligations with respect to standby
letters of credit issued in the ordinary course of business;
(o) Contingent Obligations of the Company with respect to Indebtedness of
its Semiconductor Operations Subsidiaries to the extent such Indebtedness is
otherwise permitted under this Section 7.06, and Contingent Obligations of the
Company with respect to Indebtedness of the Company or another Semiconductor
Operations Subsidiaries to the extent such Indebtedness is otherwise permitted
under this Section 7.06; and
(p) Indebtedness and Contingent Obligations other than for borrowed
money, to the extent not otherwise permitted by this Section 7.06, in an
aggregate principal amount not exceeding $50,000,000 at any time.
7.07 Transactions with Affiliates. The Company shall not, and shall
----------------------------
not suffer or permit any Semiconductor Operations Subsidiary to, enter into any
transaction with any Affiliate of the Company, except (a) with respect to any
Affiliate which is not a Semiconductor Operations Subsidiary, upon fair and
reasonable terms no less favorable to the Company or such Semiconductor
Operations Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate of the Company or such Semiconductor
Operations Subsidiary, and (b) with respect to any Affiliate which is a
Semiconductor Operations Subsidiary, upon fair and reasonable terms.
7.08 Use of Proceeds. The Company shall not, and shall not suffer or
---------------
permit any Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, (a) to purchase or carry Margin Stock, (b) to repay or otherwise
refinance indebtedness of the Company or others incurred to purchase or carry
Margin Stock, (c) to extend credit for the purpose of purchasing or carrying any
Margin Stock, or (d) to acquire any security in any transaction that is subject
to Section 13 or 14
-57-
of the Exchange Act.
7.09 Distributions. The Company shall not, and shall not suffer or
-------------
permit any Semiconductor Operations Subsidiary to, declare or make any dividend
payment or other distribution of assets, properties, cash, rights, obligations
or securities on account of any shares of any class of its capital stock (in
connection with a reclassification of such stock or otherwise), or purchase,
redeem or otherwise acquire for value any shares of its capital stock or any
warrants, rights or options to acquire such shares, now or hereafter outstanding
(collectively "Distributions"), except that, so long as no Default or Event of
-------------
Default exists or would result therefrom:
(a) the Company may make Distributions payable solely in its capital
stock, and may distribute rights under any stockholder rights plan;
(b) the Company may make Distributions with the proceeds received from
the substantially concurrent issue of new shares of its capital stock and may
redeem rights distributed under any stockholder rights plan;
(c) any Semiconductor Operations Subsidiary may declare and make
Distributions on account of any shares of any class of its capital stock or
redeem or otherwise acquire for value any shares of its capital stock or any
warrants, rights or options to acquire such shares, to or from the Company or to
or from another Semiconductor Operations Subsidiary; and
(d) the Company and its Semiconductor Operations Subsidiaries may make
Distributions from earnings available therefor; provided, that the aggregate
--------
amount of all such Distributions paid during the then current fiscal quarter and
the three fiscal quarters immediately preceding such quarter may not at any time
exceed 25% of Combined Net Income for the most recently ended fiscal quarter and
the three fiscal quarters immediately preceding such quarter.
7.10 Permitted Subordinated Debt. The Company shall not:
---------------------------
(a) issue any Permitted Subordinated Debt if:
(i) the aggregate issue price thereof (defined as the
aggregate principal amount at maturity less the aggregate original issue
discount) which, when aggregated with all other subordinated
indebtedness, would exceed the amount permitted under Section 7.06(j)
immediately after giving effect to the issuance thereof; or
(ii) a Default or Event of Default shall exist
-58-
either immediately prior to, or after giving effect to, the incurrence of
such Permitted Subordinated Debt.
(b) pay any principal (including sinking fund payments) or any other
amount (including scheduled interest payments) with respect to any Permitted
Subordinated Debt (including the payment of cash in connection with such a
conversion thereof), or purchase or redeem (or offer to purchase or redeem) any
Permitted Subordinated Debt, or deposit any monies, securities or other Property
with any trustee or other Person to provide assurance that the principal or any
portion thereof of any Permitted Subordinated Debt will be paid when due or
otherwise to provide for the defeasance of any Permitted Subordinated Debt
except, subject to the subordination provisions contained in any Permitted
------
Subordinated Debt therein, the Company may:
(i) pay scheduled interest payments on Permitted Subordinated
Debt;
(ii) make mandatory payments consisting of prepayments or
redemptions of Permitted Subordinated Debt in each case scheduled at the
time of issuance of Permitted Subordinated Debt;
(iii) deliver securities, cash and other property upon the
conversion of the Permitted Subordinated Debt in accordance with the
terms thereof (including the payment of cash in lieu of fractional shares
in connection with such a conversion); and
(iv) make voluntary payments consisting of prepayments, sinking
fund payments, defeasances or redemptions with the prior consent of the
Majority Banks.
(c) amend, waive, supplement or otherwise modify any instrument
relating to any Permitted Subordinated Debt (including any modifications to the
Subordinated Note Indenture made pursuant to a supplemental indenture, Section
301 of the Subordinated Note Indenture or otherwise) if, as a result thereof,
such Permitted Subordinated Debt would no longer satisfy all the conditions set
forth in the definition of "Permitted Subordinated Debt" or as otherwise
approved by the Majority Banks.
7.11 ERISA. The Company shall not, and shall not suffer or permit any
-----
of its ERISA Affiliates to: (a) engage in a prohibited transaction or violation
of the fiduciary responsibility rules with respect to any Plan which has
resulted or could be reasonably expected to result in liability of the Company
in an aggregate amount in excess of 5% of Combined Tangible Net Worth, or (b)
engage in a transaction
-59-
that could reasonably be expected to subject the Company to liability under
Section 4069 or 4212(c) of ERISA.
7.12 Business or Accounting Changes. The Company shall not, and shall
------------------------------
not suffer or permit any Semiconductor Operations Subsidiary to: (a) engage in
any material line of business substantially different from those lines of
business carried on by the Company and its Semiconductor Operations Subsidiaries
on the date hereof, together with businesses which are appropriate extensions of
or are reasonably related or incidental to the current businesses of the Company
and its Semiconductor Operations Subsidiaries, or (b) make any significant
change in accounting treatment or reporting practices, except as required or
permitted by GAAP, or change the convention for determining the fiscal year of
the Company or of any Semiconductor Operations Subsidiary.
7.13 Adjusted Quick Ratio. The Company shall not permit, as of the
--------------------
last day of any fiscal quarter, the ratio of (a) the sum of (i) cash, cash
equivalents and liquid investments, and (ii) net trade accounts receivable of
the Company and its Semiconductor Operations Subsidiaries on a combined basis as
shown in the Semiconductor Operations Supplemental Schedules, to (b) the sum
(without duplication) of (i) current liabilities of the Company and its
Semiconductor Operations Subsidiaries on a combined basis (plus long-term
liabilities related to customer deposits) as shown in the Semiconductor
Operations Supplemental Schedules, and (ii) any Loans outstanding, to be less
than the amount set forth below for the applicable date:
As of the last day of the Minimum Adjusted
fiscal quarter ending Quick Ratio
------------------------- ----------------
Closing Date through 2/26/98 0.75 to 1.00
5/28/98 and thereafter 1.00 to 1.00
7.14 Combined Tangible Net Worth. The Company shall not permit, as of
---------------------------
the last day of any fiscal quarter, Combined Tangible Net Worth to be less than
an amount equal to $2,017,142,130, plus the sum of (a) 75% of Combined Net
----
Income (not reduced by Combined Net Loss for any period) earned in each fiscal
quarterly accounting period commencing with the fiscal quarter ending May 29,
1997, and (b) 100% of the amount by which Combined Tangible Net Worth increases
as a result of any secondary public or private offering of equity securities by
the Company and its Semiconductor Operations Subsidiaries (not in connection
with an Acquisition or employee stock option or purchase plans) after the
Closing Date.
7.15 Leverage Ratio. The Company shall not permit, as of the last day
--------------
of any fiscal quarter, the Leverage Ratio to exceed 0.75 to 1.00.
-60-
7.16 Minimum Fixed Charge Coverage Ratio. The Company shall not
-----------------------------------
permit, as of the last day of any fiscal quarter, the ratio of (a) EBITDA for
the period consisting of the four consecutive fiscal quarters ending on such day
to (b) the sum of (i) interest expense included in EBITDA for such period
(unadjusted for interest income, if any) and (ii) current portion of long-term
debt, to be less than the following opposite the period indicated:
Minimum Fixed
As of the last day of the Charge Coverage
fiscal quarter ending Ratio
--------------------------- ---------------
2/27/97 2.50 to 1.00
5/29/97 2.50 to 1.00
8/28/97 3.00 to 1.00
11/27/97 3.50 to 1.00
2/26/98 4.00 to 1.00
5/28/98 4.00 to 1.00
9/03/98 4.00 to 1.00
12/03/98 and
thereafter 5.00 to 1.00
7.17 Maximum Combined Net Loss. The Company shall not permit Combined
-------------------------
Net Loss to exceed (a) 2% of Combined Tangible Net Worth in any fiscal quarter
or (b) 5% of Combined Tangible Net Worth in any period of four consecutive
fiscal quarters.
7.18 Material Semiconductor Operations. The Company shall not permit
---------------------------------
any Material Semiconductor Operations to be conducted, individually or in the
aggregate, by any Subsidiaries which are not Semiconductor Operations
Subsidiaries. The Company shall not permit any Semiconductor Operations
Subsidiary to be a non Wholly-Owned Subsidiary.
ARTICLE VIII - EVENTS OF DEFAULT
--------------------------------
8.01 Event of Default. Any of the following shall constitute an
----------------
"Event of Default":
-----------------
(a) Non-Payment. The Company fails to pay, (i) when and as required to
-----------
be paid herein, any amount of principal of any Loan, (ii) any amount of interest
or commitment fee payable hereunder within five days after the same becomes due,
or (iii) any other amount payable hereunder or under any other Loan Document
within 30 days after the same becomes due; or
(b) Representation or Warranty. Any representation
--------------------------
-61-
or warranty by the Company or any Semiconductor Operations Subsidiary made or
deemed made herein or in any other Loan Document is incorrect in any material
respect on or as of the date made or deemed made; or
(c) Specific Defaults. The Company fails to perform or observe any term,
-----------------
covenant or agreement contained in Section 6.13 or in Article VII; or
(d) Other Defaults. (i) The Company fails to perform or observe any
--------------
term, covenant or agreement contained in any of Sections 6.01, 6.02(a), 6.02(b),
6.03 or 6.10(b), and such default shall continue unremedied for a period of five
days after the earlier of (a) the date upon which a Responsible Officer knew or
reasonably should have known of such failure, and (b) the date upon which
written notice thereof is given to the Company by the Agent or any Bank; or (ii)
the Company fails to perform or observe any other term or covenant contained in
this Agreement or any other Loan Document, and such default shall continue
unremedied for a period of 20 days after the earlier of (x) the date upon 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 Company by the
Agent or any Bank; or
(e) Cross-Acceleration - Indebtedness. The Company or any Semiconductor
---------------------------------
Operations Subsidiary (i) fails to make any payment in respect of any individual
item of Indebtedness having an aggregate principal amount (including amounts
owing to all creditors under any combined or syndicated credit arrangement) of
more than $10,000,000, or with respect to any multiple items of Indebtedness
having an aggregate principal amount (including amounts owing to all creditors
under any combined or syndicated credit arrangement) of more than $20,000,000,
when due (whether by scheduled maturity, required prepayment, acceleration,
demand, or otherwise) and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the date of such
failure, or (ii) fails to perform or observe any other condition or covenant, or
any other event shall occur or condition exist, under any agreement or
instrument relating to any such Indebtedness described in Section 8.01(e)(i)
hereof and such failure continues after the applicable grace or notice period,
if any, specified in the relevant document on the date of such failure, if, in
the case of clause (i) or clause (ii), the effect of such failure, event or
condition results in the holder or holders of such Indebtedness or beneficiary
or beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) declaring such Indebtedness
to be due and payable prior to its stated maturity; or
(f) Cross-Acceleration - Swap Obligations. There
-------------------------------------
-62-
occurs under any Swap Contract an Early Termination Date (as defined in such
Swap Contract) resulting from (i) any event of default under such Swap Contract
as to which the Company or any Semiconductor Operations Subsidiary is the
Defaulting Party (as defined in such Swap Contract), or (ii) any Termination
Event (as defined in such Swap Contract) as to which the Company or any
Semiconductor Operations Subsidiary is an Affected Party (as defined in such
Swap Contract), and, in either event, the Swap Termination Value owed by the
Company or such Semiconductor Operations Subsidiary as a result thereof is
greater than $10,000,000; or
(g) Insolvency; Voluntary Proceedings. The Company or any Semiconductor
---------------------------------
Operations Subsidiary (i) ceases or fails to be solvent, or generally fails to
pay, or admits in writing its inability to pay, its debts as they become due,
subject to applicable grace periods, if any, whether at stated maturity or
otherwise, (ii) voluntarily ceases to conduct its business in the ordinary
course, except as may otherwise be permitted herein, (iii) voluntarily commences
any Insolvency Proceeding with respect to itself, or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(h) Involuntary Proceedings. (i) Any involuntary Insolvency Proceeding
-----------------------
is commenced or filed against the Company or any Semiconductor Operations
Subsidiary, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the Company's or any
Semiconductor Operations Subsidiary's properties, and any such proceeding or
petition shall not be dismissed, or such writ, judgment, warrant of attachment,
execution or similar process shall not be released, vacated or fully bonded
within 60 days after commencement, filing or levy, (ii) the Company or any
Semiconductor Operations Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding, or
(iii) the Company or any Semiconductor Operations Subsidiary acquiesces in the
appointment of a receiver, trustee, custodian, conservator, liquidator,
mortgagee in possession (or agent therefor), or other similar Person for itself
or a substantial portion of its property or business; or
(i) ERISA. (i) An ERISA Event shall occur with respect to a Pension Plan
-----
or Multiemployer Plan which has resulted or could reasonably be expected to
result in liability of the Company under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of 5% of
Combined Tangible Net Worth, (ii) the aggregate amount of Unfunded Pension
Liability among all Pension Plans at any time exceeds 5% of Combined Tangible
Net Worth, or (iii) the Company or any ERISA Affiliate shall fail to pay when
due, after the expiration of any applicable grace period, any
-63-
installment payment with respect to its withdrawal liability under Section 4201
of ERISA under a Multiemployer Plan in an aggregate amount in excess of 5% of
Combined Tangible Net Worth; or
(j) Monetary Judgments. One or more non-interlocutory judgments, non-
------------------
interlocutory orders, decrees or arbitration awards is entered against the
Company or any Semiconductor Operations Subsidiary involving in the aggregate a
liability (to the extent not covered by independent third-party insurance as to
which the insurer does not dispute coverage) as to any single or related series
of transactions, incidents or conditions, of $20,000,000 or more, and the same
shall remain unsatisfied, unvacated and unstayed pending appeal for a period of
30 consecutive days after the entry thereof; or
(k) Non-Monetary Judgments. Any non-monetary judgment, order or decree
----------------------
is entered against the Company or any Semiconductor Operations Subsidiary which
could reasonably be expected to have a Material Adverse Effect, and there shall
be any period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(l) Change of Control. If (i) any Person or two or more Persons acting
-----------------
in concert, other than J.R. Simplot, J.R. Simplot Company, Simplot Canada
Limited, a member of J.R. Simplot's immediate family and any other Persons
controlled by or under common control with any of the foregoing, shall either
acquire beneficial ownership, directly or indirectly, of, or acquire by contract
or otherwise, or enter into a contract or arrangement which upon consummation
will result in its or their acquisition of, or control over, securities of the
Company (or other securities convertible into such securities) representing 30%
or more of the combined voting power of all securities of the Company entitled
to vote in the election of directors; or (ii) during any period of up to 12
consecutive months, commencing after the Closing Date, individuals who at the
beginning of such 12-month period were directors of the Company shall cease for
any reason to constitute a majority of the Board of Directors of the Company
unless the persons replacing such individuals were nominated by the Board of
Directors of the Company; or
(m) Loss of Governmental Licenses. Any Governmental Authority revokes or
-----------------------------
fails to renew any material license, permit or franchise of the Company or any
Semiconductor Operations Subsidiary, or the Company or any Semiconductor
Operations Subsidiary for any reason loses any material governmental license,
permit or franchise, or the Company or any Semiconductor Operations Subsidiary
suffers the imposition of any restraining order, escrow, suspension or impound
of funds in connection with any proceeding (judicial or
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administrative) with respect to any material governmental license, permit or
franchise and the effect of such revocation, failure to renew, loss or
imposition could reasonably be expected to have a Material Adverse Effect; or
(n) Permitted Subordinated Debt; Loss of Subordination. Any event occurs
--------------------------------------------------
which gives the holder or holders of any Permitted Subordinated Debt (or an
agent or trustee on its or their behalf) the right to declare such Permitted
Subordinated Debt due before the date on which it otherwise would become due, or
the right to require the issuer thereof to redeem or purchase, or offer to
redeem or purchase, all or any portion of any Permitted Subordinated Debt; or a
final unstayed judgment is entered by a court of competent jurisdiction that any
Permitted Subordinated Debt is not subordinated in accordance with its terms to
the Obligations.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at
--------
the request of, or may, with the consent of, the Majority Banks: (a) declare
the commitment of each Bank to make Loans to be terminated, whereupon such
commitments 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 Company, and
(c) exercise on behalf of itself and the Banks all rights and remedies available
to it and the Banks under the Loan Documents or applicable law; provided,
--------
however, that upon the occurrence of any event specified in subsection (g) or
-------
(h) of Section 8.01 (in the case of clause (i) of subsection (h) upon the
expiration of the 60-day period mentioned therein), the obligation of each Bank
to make Loans shall automatically terminate and 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 Agent or any
Bank.
8.03 Rights Not Exclusive. The rights provided for in this Agreement
--------------------
and the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
8.04 Certain Financial Covenant Defaults. In the event that, after
-----------------------------------
taking into account any extraordinary charge to earnings taken or to be taken as
of the end of any fiscal period of the Company (a "Charge"), and if solely by
------
virtue of such Charge, there would exist an Event of Default due to the breach
of any of Sections 7.13, 7.14, 7.15, 7.16 or 7.17 as of
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such fiscal period end date on which the Company announces publicly it will
take, is taking or has taken such Charge (including an announcement in the form
of a statement in a report filed with the SEC) or, if such announcement is made
prior to such fiscal period end date, the date that is such fiscal period end
date, and (b) the date the Company delivers to the Agent its audited annual or
unaudited quarterly financial statements in respect of such fiscal period
reflecting such Charge as taken.
ARTICLE IX - THE AGENT
----------------------
9.01 Appointment and Authorization; "Agent". Each Bank hereby
--------------------------------------
irrevocably (subject to Section 9.09) appoints, designates and authorizes the
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 in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Bank, 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 Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the 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.
9.02 Delegation of Duties. The 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 concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i)
------------------
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
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willful misconduct), or (ii) be responsible in any manner to any of the Banks
for any recital, statement, representation or warranty made by the Company or
any Subsidiary or Affiliate of the Company, or any officer thereof, contained in
this Agreement 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
Agent under or in connection with, this Agreement or any other Loan Document, or
the validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of the Company 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 Bank 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 the Company or any
of the Company's Subsidiaries or Affiliates.
9.04 Reliance by Agent. (a) The Agent shall be entitled to rely, and
-----------------
shall be fully protected in relying, upon any writing, resolution, 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 or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Company), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by the
Banks 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 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 Majority Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed 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 Agent to such Bank for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to the Bank.
9.05 Notice of Default. The Agent shall not be deemed to have
-----------------
knowledge or notice of the occurrence of any
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Default or Event of Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the Agent for the account of
the Banks, unless the Agent shall have received written notice from a Bank or
the Company referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". The Agent will
notify the Banks of its receipt of any such notice. The Agent shall take such
action with respect to such Default or Event of Default as may be requested by
the Majority Banks in accordance with Article VIII; provided, however, that
-------- -------
unless and until the Agent has received any such request, the 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 Banks.
9.06 Credit Decision. Each Bank acknowledges that none of the Agent-
---------------
Related Persons has made any representation or warranty to it, and that no act
by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to
the 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 credit worthiness of the
Company and its Subsidiaries, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Bank 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 credit worthiness of the Company. Except for notices, reports and
other documents expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to provide any Bank
with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or credit worthiness of the
Company which may come into the possession of any of the Agent-Related Persons.
9.07 Indemnification of Agent. Whether or not the transactions
------------------------
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Company and
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without limiting the obligation of the Company to do so), pro rata, from and
against any and all Indemnified Liabilities; provided, however, that no Bank
-------- -------
shall be liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct. Without limitation of the foregoing, each Bank
shall reimburse the Agent upon demand for its ratable share of any costs or out-
of-pocket expenses (including Attorney Costs) incurred by the 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 Agent is not
reimbursed for such expenses by or on behalf of the Company. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA (and any successor Agent
----------------------------
pursuant to Section 9.09) 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 the Company and its Subsidiaries and Affiliates as though
BofA (or such successor Agent) were not the Agent hereunder and without notice
to or consent of the Banks. The Banks acknowledge that, pursuant to such
activities, BofA (and any successor Agent pursuant to Section 9.09) or its
Affiliates may receive information regarding the Company or its Affiliates
(including information that may be subject to confidentiality obligations in
favor of the Company or such Subsidiary) and acknowledge that the Agent shall be
under no obligation to provide such information to them. With respect to its
Loans, BofA (and any successor Agent pursuant to Section 9.09) shall have the
same rights and powers under this Agreement as any other Bank and may exercise
the same as though it were not the Agent, and the terms "Bank" and "Banks"
include BofA (or such successor Agent) in its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of the
---------------
Majority Banks shall, resign as Agent upon 30 days' notice to the Banks. If the
Agent resigns under this Agreement, the Majority Banks shall appoint from among
the Banks a successor agent for the Banks, which successor agent shall be
approved by the Company. If no successor agent is appointed prior to the
effective date of the resignation of the Agent, the Agent may appoint, after
consulting with the Banks and the Company, a successor agent from among the
Banks. Upon the acceptance of its appointment as successor agent hereunder,
such successor agent shall succeed to all the rights, powers
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and duties of the retiring Agent and the term "Agent" shall mean such successor
agent and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as 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 Agent
under this Agreement. If no successor agent has accepted appointment as Agent by
the date which is 30 days following a retiring Agent's notice of resignation,
the retiring Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Agent hereunder until such
time, if any, as the Majority Banks appoint a successor agent as provided for
above.
9.10 Withholding Tax. (a) If any Bank is a "foreign corporation,
---------------
partnership or trust within the meaning of the Code and such Bank claims
exemption from, or a reduction of, U.S. withholding tax under Sections 1441 or
1442 of the Code, such Bank agrees with and in favor of the Agent, to deliver to
the Agent:
(i) if such Bank claims an exemption from, or a reduction of,
withholding tax under a United States tax treaty, two properly completed
and executed copies of IRS Form 1001 before the payment of any interest
in the first calendar year and before the payment of any interest in each
third succeeding calendar year during which interest may be paid under
this Agreement;
(ii) if such Bank claims that interest paid under this
Agreement is exempt from United States withholding tax because it is
effectively connected with a United States trade or business of such
Bank, two properly completed and executed copies of IRS Form 4224 before
the payment of any interest is due in the first taxable year of such Bank
and in each succeeding taxable year of such Bank during which interest
may be paid under this Agreement; and
(iii) such other form or forms as may be required under the Code
or other laws of the United States as a condition to exemption from, or
reduction of, United States withholding tax.
Such Bank agrees to promptly notify the Agent of any change in circumstances
which would modify or render invalid any claimed exemption or reduction.
(b) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form 1001 and such Bank
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Company to such Bank, such Bank agrees to
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notify the Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company to such Bank. To the extent of
such percentage amount, the Agent will treat such Bank's IRS Form 1001 as no
longer valid.
(c) If any Bank claiming exemption from United States withholding tax
by filing IRS Form 4224 with the Agent sells, assigns, grants a participation
in, or otherwise transfers all or part of the Obligations of the Company to such
Bank, such Bank agrees to notify the Agent of the percentage amount which it is
no longer the beneficial owner of Obligations of the Company to such Bank. To
the extent of such percentage amount, the Agent will treat such Bank's IRS Form
4224 as no longer valid.
(d) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Bank
an amount equivalent to the applicable withholding tax after taking into account
such reduction. However, if the forms or other documentation required by
subsection (a) of this Section are not delivered to the Agent, then the Agent
may withhold from any interest payment to such Bank not providing such forms or
other documentation an amount equivalent to the applicable withholding tax
imposed by Sections 1441 and 1442 of the Code, without reduction.
(e) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not properly
withhold tax from amounts paid to or for the account of any Bank because the
appropriate form was not delivered or was not properly executed, or because such
Bank failed to notify the Agent of a change in circumstances which rendered the
exemption from, or reduction of, withholding tax ineffective, or for any other
reason) such Bank shall indemnify the Agent fully for all amounts paid, directly
or indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section, together with all costs and expenses
including Attorney Costs). The obligation of the Banks under this subsection
shall survive the payment of all Obligations and the resignation or replacement
of the Agent.
9.11 Co-Agents. None of the Banks identified on the facing page or
---------
signature pages of this Agreement as a "co-agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such. Without limiting the foregoing, none of
the Banks so identified as a "co-agent" shall have or be deemed to have any
fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks so identified in deciding to
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enter into this Agreement or in taking or not taking action hereunder.
ARTICLE X - MISCELLANEOUS
-------------------------
10.01 Amendments and Waivers. No amendment or waiver of any provision
----------------------
of this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Banks
(or by the Agent at the written request of the Majority Banks) and the Company
and acknowledged by the Agent, and then any 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 waiver, amendment, or consent shall,
-------- -------
unless in writing and signed by all the Banks and the Company and acknowledged
by the Agent, do any of the following: (a) increase or extend the Commitment of
any Bank (or reinstate any Commitment terminated pursuant to Section 8.02), (b)
postpone or delay any date fixed by this Agreement or any other Loan Document
for any payment of principal, interest, fees or other amounts due to the Banks
(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 (ii) below) any fees or other amounts payable hereunder or under any
other Loan Document, (d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Banks
or any of them to take any action hereunder, or (e) amend this Section, Section
2.13 or Section 2.14, or any provision herein providing for consent or other
action by all Banks; and, provided further, that (i) no amendment, waiver or
-------- -------
consent shall, unless in writing and signed by the Agent in addition to the
Majority Banks or all the Banks, as the case may be, affect the rights or duties
of the Agent under this Agreement or any other Loan Document, (ii) the fee
letters referred to in Section 2.09 may be amended, or rights or privileges
thereunder waived, in a writing executed by the parties thereto; and (iii)
nothing herein shall be construed to prohibit deemed amendments from taking
effect pursuant to Sections 3.07 or 10.08(c) hereof.
10.02 Notices. (a) All notices, requests, consents, approvals,
-------
waivers and other communications shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission, provided that
any matter transmitted by the Company by facsimile (i) shall be immediately
confirmed by a telephone call to the recipient at the number specified on
Schedule 10.02, and (ii) shall be followed promptly by delivery of a hard copy
--------------
original thereof) and mailed, faxed or
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delivered, to the address or facsimile number specified for notices on Schedule
--------
10.02; or, as directed to the Company or the Agent, to such other address as
-----
shall be designated by such party in a written notice to the other parties, and
as directed to any other party, at such other address as shall be designated by
such party in a written notice to the Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon receipt by the addressee, or if
delivered, upon delivery; except that notices pursuant to Article II or IX to
the Agent shall not be effective until actually received by the Agent.
(c) Any agreement of the Agent and the Banks herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Company. The Agent and the Banks shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by the Company
to give such notice and the Agent and the Banks shall not have any liability to
the Company or other Person on account of any action taken or not taken by the
Agent or the Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans shall not be affected in any way or
to any extent by any failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agent
and the Banks of a confirmation which is at variance with the terms understood
by the Agent and the Banks to be contained in the telephonic or facsimile
notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of the Agent or any Bank, 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.
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10.04 Costs and Expenses. The Company shall:
------------------
(a) whether or not the transactions contemplated hereby are consummated,
pay or reimburse BofA (including in its capacity as Agent) and the Arranger for
all reasonable costs and expenses incurred by them in connection with the
development, preparation, delivery, administration and execution of, and any
amendment, supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents prepared
in connection herewith or therewith, the consummation of the transactions
contemplated hereby and thereby, and in connection with any borrowing base audit
of the Company by the Agent, including Attorney Costs incurred by them with
respect thereto; and
(b) pay or reimburse the Agent, the Arranger and each Bank for all costs
and expenses (including Attorney Costs) incurred by them in connection with the
enforcement, attempted enforcement, or preservation of any rights or remedies
under this Agreement or any other Loan Document during the existence of an Event
of Default or after acceleration of the Loans (including in connection with any
"workout" or restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding). The agreements in this Section shall
survive the payment of all other Obligations.
10.05 Company Indemnification. Whether or not the transactions
-----------------------
contemplated hereby are consummated, the Company shall indemnify, defend and
hold the Agent-Related Persons, and each Bank and each of its respective
officers, directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
------------------
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses and disbursements (including Attorney Costs) of any kind or
nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Agent or replacement of any Bank) be imposed on, incurred by or asserted
against any such Person in favor of any third-party in any way relating to or
arising out of this Agreement or any document contemplated by or referred to
herein, or the transactions contemplated hereby, or any action taken or omitted
by any such Person under or in connection with any of the foregoing, including
with respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided, that the Company shall have no obligation
------------------------ --------
hereunder to any Indemnified Person with respect to Indemnified Liabilities
resulting from the gross
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negligence or willful misconduct of such Indemnified Person. The agreements in
this Section shall survive payment of all other Obligations.
10.06 Payments Set Aside. To the extent that the Company makes a
------------------
payment to the Agent or the Banks, or the Agent or the Banks exercise their
right of set-off, and such payment or the proceeds of such set-off or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding 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 Bank severally agrees to pay to the Agent upon demand its pro rata share of
any amount so recovered from or repaid by the Agent.
10.07 Successors and Assigns. The provisions of this Agreement shall
----------------------
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns, except that the Company may not assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of the Agent and each Bank.
10.08 Assignments, Participations, etc. (a) Any Bank may, with the
---------------------------------
written consent of the Company (at all times other than during the existence of
an Event of Default) and the Agent, which consents shall not unreasonably be
withheld, at any time assign and delegate to one or more Eligible Assignees
(provided that no written consent of the Company or the Agent shall be required
in connection with any assignment and delegation by a Bank to an Eligible
Assignee that is an Affiliate of such Bank or to another Bank party hereto)
(each an "Assignee") all, or any ratable part of all, of the Loans, the
--------
Commitments and the other rights and obligations of such Bank hereunder, in a
minimum amount of $10,000,000, or such lesser amount which represents a Bank's
entire Commitment (provided that no minimum amount limitation shall apply in
connection with any assignment and delegation by a Bank to an Eligible Assignee
that is an Affiliate of such Bank or to another Bank party hereto); provided,
--------
however, that the Company and the Agent may continue to deal solely and directly
-------
with such Bank in connection with the interest so assigned to an Assignee until
(i) written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have been
given to the Company and the Agent by such Bank and the Assignee; (ii) such Bank
and its Assignee shall have delivered to the Company and the Agent an Assignment
and Acceptance substantially in the
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form of Exhibit F ("Assignment and Acceptance"), together with any Note or Notes
--------- -------------------------
subject to such assignment, and (iii) the assignor Bank or Assignee has paid to
the Agent a processing fee in the amount of $3,500.
(b) From and after the date that the Agent notifies the assignor Bank
that the Agent and the Company have received (and provided their consent, if
required, with respect to) an executed Assignment and Acceptance and payment of
the above-referenced processing fee, (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Bank under the Loan Documents, and (ii) the assignor Bank
shall, to the extent that rights and obligations hereunder and under the other
Loan Documents have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights and be released from its obligations under the
Loan Documents.
(c) Within five Business Days after the Company's receipt of notice by
the Agent that it has received an executed Assignment and Acceptance and payment
of the processing fee, (and provided that the Company consents to such
assignment in accordance with Section 10.08(a)), the Company shall execute and
deliver to the Agent, new Notes evidencing such Assignee's assigned Loans and
Commitment and, if the assignor Bank has retained a portion of its Loans and its
Commitment, replacement Notes in the principal amount of the Loans retained by
the assignor Bank (such Notes to be in exchange for, but not in payment of, the
Notes held by such Bank). Immediately upon each Assignee's making its
processing fee payment under the Assignment and Acceptance, this Agreement shall
be deemed to be amended to the extent, but only to the extent, necessary to
reflect the addition of the Assignee and the resulting adjustment of the
Commitments arising therefrom. The Commitment allocated to each Assignee shall
reduce such Commitments of the assigning Bank pro tanto.
--- -----
(d) Any Bank may at any time sell to one or more commercial banks or
other Persons not Affiliates of the Company (a "Participant") participating
-----------
interests in any Loans, the Commitment of that Bank and the other interests of
that Bank (the "originating Bank") hereunder and under the other Loan Documents;
provided, however, that (i) the originating Bank's obligations under this
-------- -------
Agreement shall remain unchanged, (ii) the originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the Company and the
Agent shall continue to deal solely and directly with the originating Bank in
connection with the originating Bank's rights and obligations under this
Agreement and the other Loan Documents, and (iv) no Bank shall transfer or grant
any participating interest under which the Participant has rights to approve any
amendment to, or any consent or waiver with
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respect to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Banks as
described in the first proviso to Section 10.01. In the case of any such
----- -------
participation, the Participant shall be entitled to the benefit of Sections
3.01, 3.03 and 10.05 as though it were also a Bank hereunder (provided, however,
that no Participant shall be entitled to greater benefits under any such Section
than the Bank which sold such participation would have been entitled to), and if
amounts outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event of
Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank may
at any time, without the consent of any Person, create a security interest in,
or pledge, all or any portion of its rights under and interest in this Agreement
and any Note held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR (S)203.14, and such
Federal Reserve Bank may enforce such pledge or security interest in any manner
permitted under applicable law.
10.09 Confidentiality. Each Bank agrees to take and to cause its
---------------
Affiliates to take normal and reasonable precautions and exercise due care to
maintain the confidentiality of all confidential information provided to it by
the Company or any Subsidiary, or by the Agent on the Company's or such
Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information other than
in connection with or in enforcement of this Agreement and the other Loan
Documents or in connection with other business now or hereafter existing or
contemplated with the Company or any Subsidiary; except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Bank, or (ii) was or becomes available on a non-
confidential basis from a source other than the Company, provided that such
source is not bound by a confidentiality agreement with the Company known to the
Bank; provided, however, that any Bank may disclose such information (A) at the
-------- -------
request or pursuant to any requirement of any Governmental Authority to which
the Bank is subject or in connection with an examination of such Bank by any
such authority; (B) pursuant to subpoena or other court process, provided, that
the Bank shall use its reasonable, good faith efforts to provide prior written
notice (unless prohibited from doing so by any applicable Requirement of Law) to
the Company
-77-
to allow the Company to seek a protective order; (C) when required to do so in
accordance with the provisions of any applicable Requirement of Law; (D) to the
extent reasonably required in connection with any litigation or proceeding
(except as set forth in clause (E)) to which the Agent, any Bank or their
respective Affiliates may be party, provided, that the Bank shall use its
reasonable, good faith efforts to provide prior written notice (unless
prohibited from doing so by any applicable Requirement of Law) to the Company to
allow the Company to seek a protective order; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document; (F) to such Bank's independent auditors and other
professional advisors, provided such persons have a need to know such
information and agree to be bound by the terms of this Section 10.09 as so they
were a party hereto; (G) to any Participant or Assignee, actual or potential,
provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Banks hereunder; (H) as to any
Bank or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which the Company or any
Subsidiary is party or is deemed party with such Bank or such Affiliate; and (I)
to its Affiliates. Upon the execution hereof by all the parties, the
confidentiality undertaking set forth in this Section shall replace and
supersede the terms of any confidentiality agreement between the Company and any
of the Agent or the Banks executed prior to the Closing Date and shall survive
the termination of this Agreement for a period of 12 months.
10.10 Set-off. In addition to any rights and remedies of the Banks
-------
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank is authorized at any time and from time to time, without
prior notice to the Company, any such notice being waived by the Company 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 Bank to or for the credit or
the account of the Company against any and all Obligations owing to such Bank,
now or hereafter existing, irrespective of whether or not the Agent or such Bank
shall have made demand under this Agreement or any Loan Document and although
such Obligations may be contingent or unmatured. Each Bank agrees promptly to
notify the Company and the Agent after any such set-off and application made by
such Bank; provided, however, that the failure to give such notice shall not
-------- -------
affect the validity of such set-off and application.
10.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall
------------------------------------------------
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in
-78-
respect of all payments to be made to it hereunder and of such other
administrative information as the Agent shall reasonably request.
10.12 Counterparts. This Agreement may be executed in any number of
------------
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument. Each of the parties hereto
understands and agrees that this Agreement and any other Loan Document may be
delivered by any party hereto or thereto either in the form of an executed
original or an executed original sent by facsimile transmission to be followed
promptly by mailing of a hard copy original, and that receipt by the Agent of a
facsimile transmitted document purportedly bearing the signature of a Bank or
the Company shall bind such Bank or the Company, respectively, with the same
force and effect as the delivery of a hard copy original. Any failure by the
Agent to receive the hard copy executed original of such document shall not
diminish the binding effect of receipt of the facsimile transmitted executed
original of such document of the party whose hard copy page was not received by
the Agent.
10.13 Severability. The illegality or unenforceability of any
------------
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement required
hereunder.
10.14 No Third Parties Benefited. This Agreement is made and entered
--------------------------
into for the sole protection and legal benefit of the Company, the Banks, the
Agent and the Agent-Related Persons, and their permitted successors and assigns,
and no other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
10.15 Governing Law and Jurisdiction. (a) THIS AGREEMENT AND THE
------------------------------
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF CALIFORNIA; PROVIDED THAT THE AGENT AND THE BANKS 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 OR
OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND THE BANKS
IRREVOCABLY WAIVES ANY
-79-
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
--------------------
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE AGENT AND THE BANKS
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
10.16 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENT EACH
--------------------
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN
DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION,
PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST
ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE
BANKS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.17 Entire Agreement. This Agreement, together with the other Loan
----------------
Documents, embodies the entire agreement and understanding among the Company,
the Banks and the Agent, and supersedes all prior or contemporaneous agreements
and understandings of such Persons, verbal or written, relating to the subject
matter hereof and thereof.
10.18 Amendment and Restatement of Existing Facility. From and after
----------------------------------------------
the Closing Date, this Agreement amends and restates the Existing Facility.
-80-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered in San Francisco, California by their proper and
duly authorized officers as of the day and year first above written.
MICRON TECHNOLOGY, INC.
By:____________________________
Name: Xxxxxx Xxxxxxxxxx
Title: Treasurer
S-1
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent and a Bank
By:____________________________
Name: Xxxxxxx X. XxXxxxxxx
Title: Managing Director
S-2
ABN AMRO BANK N.V., SEATTLE
BRANCH, as Co-Agent
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
X-0
XXX XXXX XX XXXX XXXXXX,
as Co-Agent
By:____________________________
Name:
Title:
S-4
FLEET NATIONAL BANK,
as Co-Agent
By:____________________________
Name:
Title:
S-5
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agent
By:____________________________
Name:
Title:
S-6
UNITED STATES NATIONAL BANK OF
OREGON, as Co-Agent
By:____________________________
Name:
Title:
X-0
XXXXX XXXX XX XXXXXX
By:____________________________
Name:
Title:
S-8
BANQUE NATIONALE DE PARIS
By:____________________________
Name:
Title:
S-9
KEYBANK NATIONAL ASSOCIATION
By:____________________________
Name:
Title:
X-00
XXXXXX XXXX, N.A.
By:____________________________
Name:
Title:
S-11
THE DAI-ICHI KANGYO BANK,
LIMITED, SAN FRANCISCO AGENCY
By:____________________________
Name:
Title:
S-12
THE FUJI BANK, LIMITED, LOS
ANGELES AGENCY
By:____________________________
Name:
Title:
S-13
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, SAN FRANCISCO AGENCY
By:____________________________
Name:
Title:
S-14
THE SUMITOMO BANK LIMITED
By:____________________________
Name:
Title:
S-15
FIRST SECURITY BANK, N.A.
By:____________________________
Name:
Title:
S-16
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., LOS ANGELES AGENCY
By:____________________________
Name:
Title:
S-17
THE SAKURA BANK, LIMITED
By:____________________________
Name:
Title:
X-00
XXX XXXX XX XXX XXXX
By:____________________________
Name:
Title:
S-19
BANQUE PARIBAS
By:____________________________
Name:
Title:
S-20
SCHEDULE 2.01
-------------
COMMITMENTS AND PRO RATA SHARES
-------------------------------
Pro Rata
Bank Commitment Share
---- ------------ --------
Bank of America National $ 44,000,000 8.8%
Trust and Savings Association
ABN AMRO Bank, N.V.,
Seattle Branch 35,000,000 7.0
The Bank of Nova Scotia 35,000,000 7.0
Fleet National Bank 35,000,000 7.0
PNC Bank, National Association 35,000,000 7.0
United States National Bank
of Oregon 35,000,000 7.0
Royal Bank of Canada 30,000,000 6.0
Banque Nationale de Paris 25,000,000 5.0
KeyBank National Association 25,000,000 5.0
Mellon Bank, N.A. 25,000,000 5.0
The Dai-Ichi Kangyo Bank,
Limited, San Francisco Agency 25,000,000 5.0
The Fuji Bank, Limited,
Los Angeles Agency 25,000,000 5.0
The Industrial Bank of Japan,
Limited, San Francisco Agency 25,000,000 5.0
The Sumitomo Bank Limited 25,000,000 5.0
First Security Bank, N.A. 16,000,000 3.2
The Long-Term Credit Bank of
Japan, Ltd., Los Angeles Agency 16,000,000 3.2
The Sakura Bank, Limited 16,000,000 3.2
The Bank of New York 14,000,000 2.8
Banque Paribas 14,000,000 2.8
============ =====
TOTAL $500,000,000 100.0
COMMITMENTS AND PRO RATA SHARES 5/23/97
-1-
SCHEDULE 10.02
--------------
OFFSHORE AND DOMESTIC LENDING OFFICES,
--------------------------------------
ADDRESSES FOR NOTICES
---------------------
MICRON TECHNOLOGY, INC.
Notices:
Micron Technology, Inc.
0000 X. Xxxxxxx Xxx
Mail Stop 157
Xxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
Treasurer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
Address for Notices of Borrowing and
Notices of Conversion/Continuation:
Bank of America National Trust
and Savings Association
Agency Management Services #5596
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxx
Xx. Associate Agency Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Notice of Borrowing
and Notices of Conversion/Continuation):
Bank of America National Trust
and Savings Association
Credit Products-High Technology-SF #3697
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxxxx
Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Payment Office:
LENDING OFFICES AND ADDRESSES 5/23/97
-1-
Bank of America National Trust
and Savings Association
ABA No. 000-000-000
0000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Account No.: 12332-15032
Reference: Micron Technology, Inc.
Attention: Agency Management Services #0000
XXXX XX XXXXXXX NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
Notices (other than Notice of Borrowing
and Notices of Conversion/Continuation):
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxxxx
Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
Bank of America National Trust
and Savings Association
ABA No. 000-000-000
0000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Account No.: 12331-83980
Reference: Micron Technology, Inc.
PNC BANK, NATIONAL ASSOCIATION
Notices:
PNC Bank, National Association
One PNC Plaza
249 5th Avenue, Mail Stop: X-0-X0XX-00-0
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
LENDING OFFICES AND ADDRESSES 5/23/97
-2-
PNC Bank, National Association
One PNC Plaza
249 5th Avenue, Mail Stop: X-0-X0XX-00-0
Xxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UNITED STATES NATIONAL BANK OF OREGON
Notices:
United States National Bank of Oregon
000 X.X. Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
United States National Bank of Oregon
Oregon Corporate Loan Servicing
000 X.X. Xxx
Xxxxx XX0
Xxxxxxxx, XX 00000
Attention: Xxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ABN AMRO BANK, N.V., SEATTLE BRANCH
Notices:
ABN AMRO Bank, N.V., Seattle Branch
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx-Xxx Miao
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
ABN AMRO Bank, N.V., Seattle Branch
600 University Street
LENDING OFFICES AND ADDRESSES 5/23/97
-3-
Xxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE BANK OF NOVA SCOTIA
Notices:
The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Maarten Van Otterloo
Senior Relationship Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Maarten Van Otterloo
Senior Relationship Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE INDUSTRIAL BANK OF JAPAN, LIMITED,
SAN FRANCISCO AGENCY
Notices:
The Industrial Bank of Japan, Limited,
San Francisco Agency
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
The Industrial Bank of Japan, Limited,
San Francisco Agency
000 Xxxxxxxxxx Xxxxxx
LENDING OFFICES AND ADDRESSES 5/23/97
-4-
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx X'Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
Notices:
KeyBank National Association
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Attention: X. X. Xxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
KeyBank National Association
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
ROYAL BANK OF CANADA
Notices:
Royal Bank of Canada
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
Royal Bank of Canada
000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxx Xxxxxxx, XX 00000
LENDING OFFICES AND ADDRESSES 5/23/97
-5-
BANQUE NATIONALE DE PARIS
Notices:
Banque Nationale de Paris
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
Banque Nationale de Paris, San Xxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telex: RCA 278900 (Answerback: BNPS UR)
Facsimile: (000) 000-0000
THE FUJI BANK, LIMITED, LOS ANGELES AGENCY
Notices:
The Fuji Bank, Limited,
Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx
25th Floor, Suite 3900
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxx
Vice President and Manager
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
The Fuji Bank, Limited,
Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx
25th Floor, Suite 3900
Los Angeles, CA 90071
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LENDING OFFICES AND ADDRESSES 5/23/97
-0-
XXX XXXX XX XXX XXXX
Notices:
The Bank of New York
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
The Bank of New York
Xxx Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE DAI-ICHI KANGYO BANK, LIMITED,
SAN FRANCISCO AGENCY
Notices:
The Dai-Ichi Kangyo Bank, Limited,
San Francisco Agency
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
The Dai-Ichi Kangyo Bank, Limited,
San Francisco Agency
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LENDING OFFICES AND ADDRESSES 5/23/97
-7-
FIRST SECURITY BANK, N.A.
Notices:
First Security Bank, N.A.
0000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxx X. Xxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
First Security Bank, N.A.
0000 Xxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FLEET NATIONAL BANK
Notices:
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
Fleet National Bank
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LENDING OFFICES AND ADDRESSES 5/23/97
-8-
THE LONG-TERM CREDIT BANK OF JAPAN,
LTD., LOS ANGELES AGENCY
Notices:
The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxx
Vice President
Telephone: (000) 000-00000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
The Long-Term Credit Bank of Japan,
Ltd., Los Angeles Agency
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
MELLON BANK, N.A.
Notices:
Mellon Bank, N.A.
Info Tech Group Rep Xxxxxx
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Assistant Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
Mellon Bank, N.A.
3 Mellon Bank Center
Room 2304
Xxxxxxxxxx, XX 00000
Attention: X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LENDING OFFICES AND ADDRESSES 5/23/97
-9-
THE SUMITOMO BANK LIMITED
Notices:
The Sumitomo Bank Limited
0000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
The Sumitomo Bank Limited
000 X. Xxxxxxxx #0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE SAKURA BANK, LIMITED
SAN FRANCISCO AGENCY
Notices:
The Sakura Bank, Limited
San Francisco Agency
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: J.R. Best
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
The Sakura Bank, Limited
San Francisco Agency
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
LENDING OFFICES AND ADDRESSES 5/23/97
-10-
BANQUE PARIBAS
Notices:
Banque Paribas
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Assistant Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Domestic and Offshore Lending Office:
Banque Paribas
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000 OR (000) 000-0000
LENDING OFFICES AND ADDRESSES 5/23/97
-11-
EXHIBIT A
---------
FORM OF NOTICE OF BORROWING
---------------------------
Date: _____________, 199__
To: Bank of America National Trust and Savings Association, as Agent for the
Banks party to the First Amended and Restated Revolving Credit Agreement
dated as of May 28, 1997 (as extended, renewed, amended or restated from
time to time, the "Credit Agreement") among Micron Technology, Inc., the
----------------
several financial institutions from time to time party to the Credit
Agreement (the "Banks"), and Bank of America National Trust and Savings
-----
Association, as Agent
Ladies and Gentlemen:
The undersigned, Micron Technology, Inc. (the "Company"), refers to the
-------
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.03 of
the Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is _______________,
199__.
2. The aggregate amount of the proposed Borrowing is
$_____________________.
3. The Borrowing is to be comprised of $___________ of [Base Rate]
[Offshore Rate] Loans.
[4. The duration of the Interest Period for the Offshore Rate Loans
included in the Borrowing shall be _____ months.]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Borrowing,
before and after giving effect thereto and to the application of the proceeds
therefrom:
(a) the representations and warranties of the Company contained in
Article V of the Credit Agreement (except for the representations and
warranties contained
in Sections 5.05 and 5.14) are true and correct as though made on and as
of such date, except to the extent such representations and warranties
relate to an earlier
NOTICE OF BORROWING 6/23/97
A-12
date, in which case they were true and correct as of such earlier date;
(b) no Default or Event of Default has occurred and is continuing, or
would result from such proposed Borrowing; and
(c) The proposed Borrowing will not cause the aggregate principal
amount of all outstanding Loans to exceed the combined Commitments of the
Banks.
MICRON TECHNOLOGY, INC.
By:
Title:
NOTICE OF BORROWING
A-2
EXHIBIT B
---------
FORM OF NOTICE OF CONVERSION/CONTINUATION
-----------------------------------------
Date: _____________, 199__
To: Bank of America National Trust and Savings Association, as Agent for the
Banks party to the First Amended and Restated Revolving Credit Agreement
dated as of May 28, 1997 (as extended, renewed, amended or restated from
time to time, the "Credit Agreement") among Micron Technology, Inc., the
----------------
several financial institutions from time to time party to the Credit
Agreement (the "Banks"), and Bank of America National Trust and Savings
-----
Association, as Agent
Ladies and Gentlemen:
The undersigned, Micron Technology, Inc. (the "Company"), refers to the
-------
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 2.04 of
the Credit Agreement, of the [conversion] [continuation] of the Loans specified
herein, that:
1. The Conversion/Continuation Date is ______________, 199__.
2. The aggregate amount of the Loans to be [converted] [continued]
is $_______________.
3. The Loans are to be [converted into] [continued as] [Offshore
Rate] [Base Rate] Loans.
[4. The duration of the Interest Period for the Offshore Rate Loans
included in the [conversion] [continuation] shall be ___ months.]
MICRON TECHNOLOGY, INC.
By:
Title:
NOTICE OF CONVERSION/CONTINUATION 5/23/97
B-3
EXHIBIT C
---------
FORM OF MASTER PROMISSORY NOTE
------------------------------
$_______________ May 28, 1997
FOR VALUE RECEIVED, the undersigned Micron Technology, Inc., a
Delaware corporation, (the "Company") hereby promises to pay to the order of
-------
________________________ (the "Bank"), at the Agent's Payment Office, the
----
aggregate unpaid principal amount of all Loans made by the Bank to the Company
from time to time pursuant to the Credit Agreement described below at the times
and in the amounts specified in the Credit Agreement. The Company also promises
to pay interest on such unpaid principal amount at the times and at the rates
specified in the Credit Agreement.
The Bank is hereby authorized to endorse the date, amount, and
maturity of each Loan made by it and the amount and date of each payment of
principal made by the Company with respect thereto on the schedule annexed to
this Note and on continuations of such schedule, both schedule and continuations
being hereby made a part of this Note; provided, that any failure to endorse
such information on such schedule or continuation thereof shall not in any
manner affect any obligation of the Company under the Credit Agreement and this
Note.
This Master Promissory Note is one of the Notes referred to in, and is
issued under, the First Amended and Restated Revolving Credit Agreement dated as
of May 28, 1997 (as extended, renewed, amended or restated from time to time,
the "Credit Agreement") among the Company, the several financial institutions
----------------
from time to time party to the Credit Agreement (the "Banks"), and Bank of
-----
America National Trust and Savings Association, as Agent, and amends and
restates any prior promissory noted delivered to the holder under the Existing
Facility.
The holder of this Master Promissory Note shall be entitled to the benefits
provided for in the Credit Agreement. Reference is made to the Credit Agreement
for the provisions on (i) the obligation of the Bank to advance funds under this
Master Promissory Note, (ii) the manner in which interest is computed and
accrued, (iii) the Company's rights, if any, to prepay all or part of the Loans,
(iv) the events upon which the maturity of this Master Promissory Note may be
accelerated or shall be automatically accelerated, as the case may be, (v)
Attorneys Costs and other fees and expenses incurred in any
FORM OF PROMISSORY NOTE 5/23/97
C-2
enforcement of this Master Promissory Note, (vi) the Company's right to cure
certain Events of Default, and (vii) the Bank's rights to assign all or part of
this Master Promissory Note to Eligible Assignees and/or to sell participating
interests in any Loans, as more fully set forth in the Credit Agreement. Terms
defined in the Credit Agreement shall have the same meanings herein.
This Master Promissory Note shall be governed by and construed and enforced
in accordance with the laws of the State of California.
IN WITNESS WHEREOF, the undersigned has caused this Master Promissory Note
to be executed by its officer thereunto duly authorized.
MICRON TECHNOLOGY, INC.
By:
Title:
FORM OF PROMISSORY NOTE 5/23/97
C-2
SCHEDULE
------------------------------------------------------------------------------
Date Loan Amount of Loan Maturity Principal Date
Disbursed Date Payment Principal
Paid
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FORM OF PROMISSORY NOTE 5/23/97
C-3
EXHIBIT D
---------
FORM OF COMPLIANCE CERTIFICATE
------------------------------
MICRON TECHNOLOGY, INC.
FINANCIAL STATEMENT DATE: ______________, 199__
Reference is made to that certain First Amended and Restated Revolving
Credit Agreement dated as of May 28, 1997 (as extended, renewed, amended or
restated from time to time, the "Credit Agreement") among Micron Technology,
----------------
Inc. (the "Company"), the several financial institutions from time to time party
-------
to this Credit Agreement (the "Banks"), and Bank of America National Trust and
-----
Savings Association, as agent for the Banks (in such capacity, the "Agent").
-----
Unless otherwise defined herein, capitalized terms used herein have the
respective meanings assigned to them in the Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies as of
the date hereof that he/she is the [Chief Financial Officer] [Treasurer] of the
Company, and that, as such, he/she is authorized to execute and deliver this
Certificate to the Banks and the Agent on the behalf of the Company and its
consolidated Subsidiaries, and that:
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by Section 6.01(a) of the Credit Agreement.]
1. Attached as Schedule 1 hereto are true and correct copies of the
----------
audited consolidated balance sheet of the Company and its Subsidiaries as at the
end of the fiscal year ended _______________, 199__ and the related consolidated
statements of operations and cash flows for the year then ended, setting forth
in each case in comparative form the figures for the previous fiscal year,
together with the related Semiconductor Operations Supplemental Schedules, and
accompanied by the report of the Independent Auditor, whose opinion (a) states
(i) that such consolidated financial statements present fairly in all material
respects the financial position of the Company and its Subsidiaries on a
consolidated basis as of the date thereof and the results of operations for the
periods indicated in conformity with GAAP, except as otherwise indicated
therein, and (ii) such related Semiconductor Operations Supplemental Schedules
were prepared on a basis consistent with the basic consolidated financial
statements of the Company and its Subsidiaries except as disclosed in the notes
thereto and the information therein is fairly stated in all material respects in
relation to the basic consolidated financial statements
FORM OF COMPLIANCE CERTIFICATE 5/23/97
D-1
taken as a whole except as specifically noted therein. Such Semiconductor
Operations Supplemental Schedules present fairly, in all material respects, the
net assets and operations and cash flows of the Company and its Semiconductor
Operations Subsidiaries (on a combined basis) for the periods covered thereby,
on the basis specified and described in the notes to such schedules.
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by Section 6.01(b) of the Credit Agreement.]
1. Attached as Schedule 1 hereto are true and correct copies of the
----------
unaudited consolidated balance sheet of the Company and its Subsidiaries as of
the end of the fiscal quarter ended _________________, 1999__ and the related
consolidated statements of operations and cash flows for the interim periods
then ended, together with the related Semiconductor Operations Supplemental
Schedules. The unaudited consolidated financial statements of the Company and
its Subsidiaries (a) fairly present in all material respects, in accordance with
GAAP (subject to ordinary, good faith year-end adjustments, the financial
position and the results of operations of the Company and its Subsidiaries on a
consolidated basis, and (b) include or disclose all material indebtedness and
other liabilities, direct or contingent, of the Company and its Subsidiaries on
a consolidated basis as of the date thereof, including liabilities for taxes,
material commitments and material Contingent Obligations. Such related
Semiconductor Operations Supplemental Schedules (x) include amounts based on
estimates of annual amounts and are subject to changes in estimates and ordinary
year-end adjustments, (y) present fairly, in all material respects, the net
assets and operations and cash flows of the Company and its Semiconductor
Operations Subsidiaries (on a combined basis) for the periods covered thereby,
on the basis specified and described in the notes to such schedules, and (z)
were prepared on a basis consistent with the basic consolidated financial
statements of the Company and its Subsidiaries except as disclosed in the notes
thereto.
2. The undersigned has reviewed and is familiar with the terms of the
Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and conditions (financial or
otherwise) of the Company during the accounting period covered by the attached
financial statements.
3. The Company, during such period, has observed, performed or satisfied
all of its covenants and other agreements, and satisfied every condition in the
Credit Agreement to be observed, performed or satisfied by the
FORM OF COMPLIANCE CERTIFICATE 5/23/97
D-2
Company, and the undersigned has no knowledge of any Default or Event of
Default.
4. The representations and warranties of the Company contained in Article
V of the Credit Agreement are true and correct as though made on and as of the
date hereof (except to the extent such representations and warranties relate to
an earlier date, in which case they were true and correct as of such earlier
date).
5. The following 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
______________, 199__.
MICRON TECHNOLOGY, INC.
By:
Title:
FORM OF COMPLIANCE CERTIFICATE 5/23/97
D-3
SCHEDULE 2
----------
TO THE COMPLIANCE CERTIFICATE
($ IN 000'S)
Date: ______________, 199__
For the fiscal quarter/year
ended ______________, 199__
(Unless otherwise noted, all covenants are to be calculated on basis of the
Company and the Semiconductor Operations Subsidiaries on a combined basis.)
A. SECTION 7.13: ADJUSTED QUICK RATIO.
-----------------------------------
1. Cash, cash equivalents and liquid
investments: $_________________
2. Net trade accounts receivable: $_________________
3. Current liabilities: $_________________
4. Long-term liabilities related to
customer deposits and loans: $_________________
5. Any Loans outstanding: $_________________
6. Adjusted Quick Ratio (Lines A.1 +
A.2) / (Lines A.3 + A.4 + A.5): _______ to 1.00
Line A.6 not to be less than:
As of the last day of the Minimum Adjusted
fiscal quarter ending Quick
--------------------- -----------
Ratio
------
Closing Date through 2/26/98 0.75 to 1.00
5/28/98 and thereafter 1.00 to 1.00
FORM OF COMPLIANCE CERTIFICATE 5/23/97
-1-
B. SECTION 7.14: COMBINED TANGIBLE NET WORTH.
------------------------------------------
1. Total net assets:/1/ $____________
2. Net book value of intangible assets:/1/ $____________
3. Line B.1 less Line B.2: $============
----
4. 75% of Combined Net Income (not
reduced by Combined Net Loss)
commencing with FQ ending 5/29/97: $____________
5. 100% of increases in Combined
Tangible Net Worth resulting from
certain equity offerings after
Closing Date: $____________
6. $______________ + Line B.4 + B.5: $
============
Line B.3 not to be less than Line B.6
C. SECTION 7.15: LEVERAGE RATIO.
-----------------------------
1. Combined Adjusted Total Liabilities:
a. Total liabilities: $____________
b. Certain off-balance sheet
obligations: $____________
c. Total Liabilities
(Lines C.1a + C.1b): $============
2. Line B.3 (Combined Tangible Net Worth): $____________
3. Leverage Ratio (Line C.1c / Line C.2): ______ to 1.00
Leverage Ratio not to exceed 0.75 to 1
____________________
/1/ Excluding non-semiconductor operations and assets otherwise included
therein.
FORM OF COMPLIANCE CERTIFICATE 5/23/97
-2-
D. SECTION 7.16: MINIMUM FIXED CHARGE COVERAGE RATIO.
--------------------------------------------------
1. EBITDA for four consecutive quarters
ending on date of above financial
statements ("Subject Period"):
a. Combined Net Income or
Combined Net Loss: $__________________
b. Combined Interest Expense:/2/ $__________________
c. Income tax expense:/1/ $__________________
d. Depreciation expense:/1/ $__________________
e. Amortization expense:/1/ $__________________
f. EBITDA (Lines D.1a + b +
c + d + e): $==================
2. Combined interest expense
for Subject Period (Line D.1b): $__________________
3. Current portion of long-term debt: $__________________
4. Fixed Charge Coverage Ratio
(Line D.1f / (Lines D.1 + D.2): ________ to 1.00
Fixed Charge Coverage Ratio not to be less than:
Minimum Fixed
As of the last day of the Charge Coverage
fiscal quarter ending Ratio
---------------------------- ---------------
2/27/97 2.50 to 1.00
5/29/97 2.50 to 1.00
8/28/97 3.00 to 1.00
11/27/97 3.50 to 1.00
2/26/98 4.00 to 1.00
5/28/98 4.00 to 1.00
9/03/98 4.00 to 1.00
12/03/98 and
thereafter 5.00 to 1.00
_________________
/2/ To the extent deducted in determining Semiconductor Operations Group Net
Income or Net Loss.
FORM OF COMPLIANCE CERTIFICATE 5/23/97
-3-
E. SECTION 7.17: MAXIMUM COMBINED LOSS.
------------------------------------
1. Combined Net Loss for quarter
ending on above date: $____________
2. Combined Net Loss for Subject Period: $____________
3. Line B.3 (Combined Tangible Net Worth): $____________
a. 2% of Line E.3: $____________
b. 5% of Line E.3: $____________
Line E.1 not to exceed Line E.3a
Line E.2 not to exceed Line E.3b
F. SECTION 7.01(J): PURCHASE MONEY LIENS.
--------------------------------------
1. Indebtedness secured by purchase money
and other similar security interests: $____________
2. Combined net property, plant and
equipment: $____________
3. 20% of Line F.2: $____________
Line F.1 not to exceed Line F.3
G. SECTIONS 7.01(Q), (R): SECURED PERMITTED SWAP OBLIGATIONS; ORDINARY COURSE
---------------------------------------------------------------------------
SECURED INDEBTEDNESS.
--------------------
1. Permitted Swap Obligations secured
by cash collateral or government
securities: $____________
2. Ordinary course secured Indebtedness
for other than borrowed money: $____________
3. Combined Tangible Assets: $____________
a. Total assets:/3/ $____________
b. Line B.2: $____________
_______________________
/3/ Excluding non-semiconductor operations and assets otherwise included
therein.
FORM OF COMPLIANCE CERTIFICATE 5/23/97
-4-
c. Line G.3a less Line G.3b: $============
----
4. 5% of Line G.3c: $____________
Lines G.1 + G 2 not to exceed Line G.4
H. SECTION 7.03(D): DISPOSITION OF MATERIAL ASSETS.
------------------------------------------------
1. Aggregate fair market value of
all material (greater than $1,000,000
individually) assets sold outside
ordinary course of business: $____________
2. Aggregate fair market value of
all material (greater than $1,000,000
individually) assets disposed of pur-
suant to sale-leaseback transactions
not constituting Permitted Sale-
Leaseback Transactions: $____________
3. Lines H.1 + H.2: $____________
4. 10% of Line G.3c (Combined
Tangible Assets): $____________
Line H.3 not to exceed Line H.4
I. SECTION 7.05(D): INVESTMENTS IN MICRON ELECTRONICS, INC.
--------------------------------------------------------
1. Aggregate principal amount of all
outstanding extensions of credit to,
plus cumulative amount of all equity
----
contributions made since Closing Date
in, Micron Electronics, Inc: $____________
Line I.1 not to exceed $100,000,000
J. SECTION 7.05(E): INVESTMENTS IN NON SEMICONDUCTOR OPERATIONS SUBSIDIARIES
--------------------------------------------------------------------------
(OTHER THAN MICRON ELECTRONICS, INC.).
-------------------------------------
FORM OF COMPLIANCE CERTIFICATE 5/23/97
-5-
1. Aggregate principal amount of all
outstanding extensions of credit to,
plus cumulative amount of all equity
----
contributions made since Closing Date
in, non Semiconductor Operations
Subsidiaries other than Micron
Electronics, Inc.: $____________
Line J.1 not to exceed Line E.3b (5% of Combined Tangible Net Worth)
K. SECTION 7.05(G): ACQUISITIONS OR MINORITY INTERESTS.
----------------------------------------------------
Cumulative aggregate consideration paid
(including assumption of debt),
aggregate principal amount of all out-
standing extensions of credit, plus
----
cumulative amount of all equity
contributions made since Closing
Date in connection with: $____________
1. Acquisitions: $____________
2. Acquisitions of minority interests: $____________
3. Acquisitions of minority interests in
Subsidiaries that are not Wholly-Owned
Semiconductor Operations Subsidiaries: $____________
4. Lines K.1 + K.2 + K.3: $____________
5. 25% of Line G.3c
(Combined Tangible Assets): $____________
Line K.4 not to exceed Line K.5
L. SECTION 7.05(O): OTHER INVESTMENTS.
-----------------------------------
1. Cumulative aggregate consideration
paid (including assumption of debt),
aggregate principal amount of all
outstanding extensions of credit,
plus cumulative amount of all
----
equity contributions made since
Closing Date not otherwise
permitted by Section 7.05: $____________
2. 2% of Line G.3c (Combined
Tangible Assets): $____________
Line L.1 not to exceed Line L.2
FORM OF COMPLIANCE CERTIFICATE 5/23/97
-6-
M. SECTION 7.06(H): INDEBTEDNESS INCURRED FROM OTHER THAN COMPANY OR
------------------------------------------------------------------
SEMICONDUCTOR OPERATIONS SUBSIDIARIES.
-------------------------------------
1. Indebtedness incurred by Semiconductor
Operations Subsidiaries from Persons
other than Company or Semiconductor
Operations Subsidiaries: $____________
Line M.1 not to exceed $50,000,000
N. SECTION 7.06(J): PERMITTED SUBORDINATED DEBT.
---------------------------------------------
1. Permitted Subordinated Debt of Company: $____________
Line N.1 not to exceed $500,000,000
O. SECTION 7.06(K)): SENIOR UNSECURED DEBT.
----------------------------------------
1. Senior Unsecured Debt of Company: $____________
Line O.1 not to exceed $300,000,000
P. SECTION 7.06(P): OTHER INDEBTEDNESS AND CONTINGENT OBLIGATIONS FOR OTHER
-------------------------------------------------------------------------
THAN BORROWED MONEY.
-------------------
1. Other Indebtedness and Contingent
Obligations other than for
borrowed money: $____________
Line P.1 not to exceed $50,000,000
Q. SECTION 7.09(D): DISTRIBUTIONS.
------------------------------
1. Distributions during Subject Period: $____________
2. 25% of Line D.1a (Combined Net Income): $____________
Line Q.1 not to exceed Line Q.2
FORM OF COMPLIANCE CERTIFICATE 5/23/97
-7-
EXHIBIT E-1
-----------
FORM OF OPINION OF COMPANY'S ASSISTANT GENERAL COUNSEL
------------------------------------------------------
SEE ATTACHMENT HERETO.
FORM OF OPINION OF COMPANY'S ASSOCIATE GENERAL COUNSEL 5/23/97
E-1-1
EXHIBIT E-2
-----------
FORM OF OPINION OF COMPANY'S OUTSIDE COUNSEL
--------------------------------------------
SEE ATTACHMENT HERETO.
FORM OF OPINION OF COMPANY'S OUTSIDE COUNSEL 5/23/97
E-2-2
EXHIBIT F
---------
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT
-------------------------------------------
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
--------------
Acceptance") dated as of ____________, 199__ is made between __________________
(the "Assignor") and ________________ (the "Assignee").
-------- --------
RECITALS
--------
WHEREAS, the Assignor is party to that certain First Amended and Restated
Revolving Credit Agreement dated as of May 28, 1997 (as amended, amended and
restated, modified, supplemented or renewed, the "Credit Agreement") among
----------------
Micron Technology, Inc. (the "Company"), the several financial institutions from
-------
time to time party thereto (including the Assignor, the "Banks"), and Bank of
-----
America National Trust and Savings Association, as agent for the Banks (the
"Agent"). Any terms defined in the Credit Agreement and not defined in this
------
Assignment and Acceptance are used herein as defined in the Credit Agreement;
WHEREAS, as provided under the Credit Agreement, the Assignor has
committed to making Loans (the "Loans") to the Company in an aggregate amount
-----
not to exceed $__________ (the "Commitment");
----------
WHEREAS, [the Assignor has made Loans in the aggregate principal amount
of $__________ to the Company] [no Loans are outstanding under the Credit
Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part of the]
[all] rights and obligations of the Assignor under the Credit Agreement in
respect of its Commitment, [together with a corresponding portion of each of its
outstanding Loans], in an amount equal to $__________ (the "Assigned Amount"),
---------------
on the terms and subject to the conditions set forth herein and the Assignee
wishes to accept assignment of such rights and to assume such obligations from
the Assignor on such terms and subject to such conditions.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
-------------------------
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT 5/23/97
F-1
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes from
the Assignor, without recourse and without representation or warranty (except as
provided in this Assignment and Acceptance) ___% (the "Assignee's Percentage
---------------------
Share") of (A) the Commitment [and the Loans] of the Assignor and (B) all
-----
related rights, benefits, obligations, liabilities and indemnities of the
Assignor under and in connection with the Credit Agreement and the Loan
Documents.
(b) With effect on and after the Effective Date (as defined in
Section 5 hereof), the Assignee shall be a party to the Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Bank under the Credit Agreement, including the requirements concerning
confidentiality and the payment of indemnification, with a Commitment in an
amount equal to the Assigned Amount. The Assignee agrees that it will perform
in accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Bank. It is the intent
of the parties hereto that the Commitment of the Assignor shall, as of the
Effective Date, be reduced by an amount equal to the Assigned Amount and the
Assignor shall relinquish its rights and be released from its obligations under
the Credit Agreement to the extent such obligations have been assumed by the
Assignee; provided, however, that the Assignor shall not relinquish its rights
-------- -------
under Sections 10.04 and 10.05 of the Credit Agreement to the extent such rights
relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignee's Commitment will be $__________.
(d) After giving effect to the assignment and assumption set forth
herein, on the Effective Date the Assignor's Commitment will be $__________.
2. Payments.
--------
(a) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in immediately available funds an amount equal to $__________,
representing the Assignee's Pro Rata Share of the principal amount of all Loans.
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT 5/23/97
F-2
Section 10.08 of the Credit Agreement.
3. Reallocation of Payments. Any interest, fees and other payments
------------------------
accrued to the Effective Date with respect to the Commitment [and Loans] shall
be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the Assigned Amount
shall be for the account of the Assignee. Each of the Assignor and the Assignee
agrees that it will hold in trust for the other party any interest, fees and
other amounts which it may receive to which the other party is entitled pursuant
to the preceding sentence and pay to the other party any such amounts which it
may receive promptly upon receipt.
4. Independent Credit Decision. The Assignee (a) acknowledges that it
---------------------------
has received a copy of the Credit Agreement and the Schedules and Exhibits
thereto, together with copies of the most recent financial statements referred
to in Section 6.01 of the Credit Agreement, and such other documents and
information as it has deemed appropriate to make its own credit and legal
analysis and decision to enter into this Assignment and Acceptance; and (b)
agrees that it will, independently and without reliance upon the Assignor, the
Agent or any other Bank and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit and legal
decisions in taking or not taking action under the Credit Agreement.
5. Effective Date; Notices.
-----------------------
(a) As between the Assignor and the Assignee, the effective date for
this Assignment and Acceptance shall be _____________, 199__ (the "Effective
---------
Date"); provided that the following conditions precedent have been satisfied on
---- --------
or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and
delivered by the Assignor and the Assignee;
(ii) the consent of the Company and the Agent required for an
effective assignment of the Assigned Amount by the Assignor to the
Assignee under Section 10.08 of the Credit Agreement shall have been duly
obtained and shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due to
the Assignor under this Assignment and Acceptance;
(iv) the Assignee shall have complied with
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT 5/23/97
F-3
Section 10.08 of the Credit Agreement (if applicable);
(v) the processing fee referred to in Section 2(b) hereof and
in Section 10.08 of the Credit Agreement shall have been paid to the
Agent; and
(vi) the Assignor shall have assigned and the Assignee shall
have assumed a percentage equal to the Assignee's Percentage Share of the
rights and obligations of the Assignor under the Credit Agreement (if
such agreement exists).
(b) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Agent for
acknowledgement by the Agent, a Notice of Assignment substantially in the form
attached hereto as Schedule 1.
----------
6. Agent. The Assignee hereby appoints and authorizes the Assignor to
-----
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement as are delegated to the Agent by the Banks pursuant to the
terms of the Credit Agreement. [The Assignee shall assume no duties or
obligations held by the Assignor in its capacity as Agent under the Credit
Agreement.] [INCLUDE ONLY IF ASSIGNOR IS AGENT]
7. Withholding Tax. The Assignee (a) represents and warrants to the
---------------
Bank, the Agent and the Company that under applicable law and treaties no tax
will be required to be withheld by the Bank with respect to any payments to be
made to the Assignee hereunder, (b) agrees to furnish (if it is organized under
the laws of any jurisdiction other than the United States or any State thereof)
to the Agent and the Company prior to the time that the Agent or Company is
required to make any payment of principal, interest or fees hereunder, duplicate
executed originals of either U.S. Internal Revenue Service Form 4224 or U.S.
Internal Revenue Service Form 1001 (wherein the Assignee claims entitlement to
the benefits of a tax treaty that provides for a complete exemption from U.S.
federal income withholding tax on all payments hereunder) and agrees to provide
new Forms 4224 or 1001 upon the expiration of any previously delivered form or
comparable statements in accordance with applicable U.S. law and regulations and
amendments thereto, duly executed and completed by the Assignee, and (c) agrees
to comply with all applicable U.S. laws and regulations with regard to such
withholding tax exemption.
8. Representations and Warranties.
------------------------------
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT 5/23/97
F-4
assigned by it hereunder and that such interest is free and clear of any Lien or
other adverse claim; (ii) it is duly organized and existing and it has the full
power and authority to take, and has taken, all action necessary to execute and
deliver this Assignment and Acceptance and any other documents required or
permitted to be executed or delivered by it in connection with this Assignment
and Acceptance and to fulfill its obligations hereunder; (iii) no notices to, or
consents, authorizations or approvals of, any Person are required (other than
any already given or obtained) for its due execution, delivery and performance
of this Assignment and Acceptance, and apart from any agreements or undertakings
or filings required by the Credit Agreement, no further action by, or notice to,
or filing with, any Person is required of it for such execution, delivery or
performance; and (iv) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignor, enforceable against the Assignor in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto. The
Assignor makes no representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or statements
of the Company, or the performance or observance by the Company, of any of its
respective obligations under the Credit Agreement or any other instrument or
document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly
organized and existing and it has full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance, and to
fulfill its obligations hereunder; (ii) no notices to, or consents,
authorizations or approvals of, any Person are required (other than any already
given or obtained) for its due execution, delivery and performance of this
Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Assignment and Acceptance has been duly executed and
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT 5/23/97
F-5
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
9. Further Assurances. The Assignor and the Assignee each hereby 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, including the delivery of any
notices or other documents or instruments to the Company or the Agent, which may
be required in connection with the assignment and assumption contemplated
hereby.
10. Miscellaneous.
-------------
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Acceptance shall be without prejudice to any
rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF CALIFORNIA.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH
THIS ASSIGNMENT AND ACCEPTANCE, THE CREDIT AGREEMENT, ANY RELATED DOCUMENTS AND
AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, OR STATEMENTS (WHETHER
ORAL OR WRITTEN).
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT 5/23/97
F-6
[Other provisions to be added as may be negotiated between the Assignor and the
Assignee, provided that such provisions are not inconsistent with the Credit
Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:_____________________________
Title:
[ASSIGNEE]
By:_____________________________
Title:
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT 5/23/97
F-7
SCHEDULE 1
NOTICE OF ASSIGNMENT AND ACCEPTANCE
-----------------------------------
_______________, 19__
Bank of America National Trust
and Savings Association, as Agent
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Agency Management Services #5596
Micron Technology, Inc.
Mail Stop 157
0000 Xxxxx Xxxxxxx Xxx
Xxxxx, Xxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxxxx
Treasurer
Ladies and Gentlemen:
We refer to the First Amended and Restated Revolving Credit Agreement
dated as of May 28, 1997 (as amended, amended and restated, modified,
supplemented or renewed from time to time the "Credit Agreement") among Micron
----------------
Technology, Inc. (the "Company"), the several financial institutions from time
-------
to time party thereto (including the Assignor, the "Banks"), and Bank of America
-----
National Trust and Savings Association, as agent for the Banks (the "Agent").
-----
Terms defined in the Credit Agreement are used herein as therein defined.
1. We hereby give you notice of, and request your consent to, the
assignment by __________________ (the "Assignor") to _______________ (the
--------
"Assignee") of _____% of the right, title and interest of the Assignor in and to
---------
the Credit Agreement (including, without limitation, the right, title and
interest of the Assignor in and to the Commitments of the Assignor [and all
outstanding Loans made by the Assignor]) pursuant to the Assignment and
Acceptance Agreement attached hereto (the "Assignment and Acceptance"). Before
-------------------------
giving effect to such assignment the Assignor's Commitment is $ ___________ and
the aggregate amount of its outstanding Loans is $_____________.
2. The Assignee agrees that, upon receiving the consent of the Agent
and, if applicable, the Company to such assignment, the Assignee will be bound
by the terms of the
FORM OF ASSIGNMENT AND ACCEPTANCE AGREEMENT 5/23/97
F-8
Credit Agreement as fully and to the same extent as if the Assignee were the
Bank originally holding such interest in the Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Notice Address:
Assignee name:______________________________
Address: ______________________________
______________________________
______________________________
Attention: ______________________________
Telephone: (___) __________________________
Telecopier: (___) _________________________
Telex (Answerback): _______________________
(B) Payment Instructions:
Account No.: ______________________________
At: ______________________________
______________________________
______________________________
Reference: ______________________________
Attention: ______________________________
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and Assignee contained in the Assignment and
Acceptance.
-2-
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this Notice
of Assignment and Acceptance to be executed by their respective duly authorized
officials, officers or agents as of the date first above mentioned.
Very truly yours,
[NAME OF ASSIGNOR]
By:_______________________________________
Title:
By:_______________________________________
Title:
[NAME OF ASSIGNEE]
By:_______________________________________
Title:
By:_______________________________________
Title:
-3-
ACKNOWLEDGED AND ASSIGNMENT
CONSENTED TO:
MICRON TECHNOLOGY, INC.
By:_____________________________
Title:
By:_____________________________
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:_____________________________
Vice President
-4-
EXHIBIT G
---------
FORM OF SUBORDINATED NOTE INDENTURE
-----------------------------------
FORM OF SUBORDINATED NOTE INDENTURE 5/23/97
G-1
================================================================================
--------------------------------------------------------------------------------
FIRST AMENDED AND RESTATED
REVOLVING CREDIT AGREEMENT
Dated as of May 28, 1997
among
MICRON TECHNOLOGY, INC.,
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
BancAmerica Securities, Inc.
--------------------------------------------------------------------------------
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS; OTHER INTERPRETIVE PROVISIONS;
ACCOUNTING PRINCIPLES .............................. 1
1.01 Certain Defined Terms........................................... 1
1.02 Other Interpretive Provisions................................... 20
1.03 Accounting Principles........................................... 21
ARTICLE II - THE REVOLVING CREDIT.......................................... 21
2.01 Amounts and Terms of Commitments................................ 21
2.02 Loan Accounts................................................... 21
2.03 Procedure for Borrowing......................................... 22
2.04 Conversion and Continuation Elections........................... 23
2.05 Voluntary Termination or Reduction of Commitments............... 24
2.06 Optional Prepayments............................................ 24
2.07 Repayment....................................................... 25
2.08 Interest........................................................ 25
2.09 Fees............................................................ 25
(a) Arrangement, Agency Fees................................... 25
(b) Participation Fee.......................................... 25
(c) Commitment Fees............................................ 26
2.10 Computation of Fees and Interest................................ 26
2.11 Payments by the Company......................................... 26
2.12 Payments by the Banks to the Agent.............................. 27
2.13 Sharing of Payments, Etc........................................ 28
2.14 Optional Extension of Commitments............................... 28
ARTICLE III - TAXES, YIELD PROTECTION AND ILLEGALITY....................... 29
3.01 Taxes........................................................... 29
3.02 Illegality...................................................... 31
3.03 Increased Costs and Reduction of Return......................... 32
3.04 Funding Losses.................................................. 33
3.05 Inability to Determine Rates.................................... 33
3.06 Certificates of Banks........................................... 34
3.07 Replacement of Bank............................................. 34
3.08 Survival........................................................ 35
ARTICLE IV - CONDITIONS PRECEDENT.......................................... 35
4.01 Conditions to Effectiveness..................................... 35
(a) Credit Agreement and Notes................................. 35
(b) Resolutions; Incumbency; Organization Documents............ 35
(c) Good Standing.............................................. 36
(d) Legal Opinions............................................. 36
(e) Payment of Fees............................................ 36
(f) Certificate................................................ 36
(g) Disclosure Letter.......................................... 36
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Page
----
(h) Other Documents............................................ 36
4.02 Conditions to All Borrowings.................................... 36
(a) Notice of Borrowing or Conversion/Continuation............. 37
(b) Continuation of Representations and Warranties............. 37
(c) No Existing Default........................................ 37
ARTICLE V - REPRESENTATIONS AND WARRANTIES................................. 37
5.01 Corporate Existence and Power................................... 37
5.02 Corporate Authorization; No Contravention....................... 37
5.03 Governmental Authorization...................................... 38
5.04 Binding Effect.................................................. 38
5.05 Litigation...................................................... 38
5.06 No Default...................................................... 38
5.07 ERISA Compliance................................................ 39
5.08 Use of Proceeds; Margin Regulations............................. 39
5.09 Title to Properties............................................. 40
5.10 Taxes........................................................... 40
5.11 Financial Condition............................................. 40
5.12 Environmental Matters........................................... 41
5.13 Regulated Entities.............................................. 41
5.14 Intellectual Property........................................... 41
5.15 Subsidiaries; Minority Interests................................ 42
5.16 Insurance....................................................... 42
5.17 Swap Obligations................................................ 42
5.18 Full Disclosure................................................. 42
5.19 Projections..................................................... 43
ARTICLE VI - AFFIRMATIVE COVENANTS......................................... 43
6.01 Financial Statements............................................ 43
6.02 Certificates; Other Information................................. 45
6.03 Notices......................................................... 45
6.04 Preservation of Corporate Existence, Etc........................ 47
6.05 Maintenance of Property......................................... 47
6.06 Insurance....................................................... 48
6.07 Payment of Obligations.......................................... 48
6.08 Compliance with Laws............................................ 48
6.09 Compliance with ERISA........................................... 48
6.10 Inspection of Property and Books and Records.................... 48
6.11 Environmental Laws.............................................. 49
6.12 Use of Proceeds................................................. 49
6.13 Ranking; Designated Senior Indebtedness......................... 49
6.14 New Semiconductor Operations Subsidiaries....................... 50
ARTICLE VII - NEGATIVE COVENANTS........................................... 50
7.01 Limitation on Liens............................................. 50
7.02 Exclusive Negative Pledge....................................... 53
7.03 Disposition of Assets........................................... 54
7.04 Consolidations and Mergers...................................... 55
7.05 Loans and Investments........................................... 55
7.06 Limitation on Indebtedness and Contingent
-ii-
Page
----
Obligations..................................................... 58
7.07 Transactions with Affiliates.................................... 59
7.08 Use of Proceeds................................................. 59
7.09 Distributions................................................... 60
7.10 Permitted Subordinated Debt..................................... 60
7.11 ERISA........................................................... 62
7.12 Business or Accounting Changes.................................. 62
7.13 Adjusted Quick Ratio............................................ 62
7.14 Combined Tangible Net Worth..................................... 62
7.15 Leverage Ratio.................................................. 63
7.16 Minimum Fixed Charge Coverage Ratio............................. 63
7.17 Maximum Combined Net Loss....................................... 63
7.18 Material Semiconductor Operations............................... 63
ARTICLE VIII - EVENTS OF DEFAULT........................................... 64
8.01 Event of Default................................................ 64
(a) Non-Payment................................................ 64
(b) Representation or Warranty................................. 64
(c) Specific Defaults.......................................... 64
(d) Other Defaults............................................. 64
(e) Cross-Acceleration - Indebtedness.......................... 64
(f) Cross-Acceleration - Swap Obligations...................... 65
(g) Insolvency; Voluntary Proceedings.......................... 65
(h) Involuntary Proceedings.................................... 65
(i) ERISA...................................................... 66
(j) Monetary Judgments......................................... 66
(k) Non-Monetary Judgments..................................... 66
(l) Change of Control.......................................... 66
(m) Loss of Governmental Licenses.............................. 67
(n) Permitted Subordinated Debt; Loss of Subordination......... 67
8.02 Remedies........................................................ 67
8.03 Rights Not Exclusive............................................ 68
8.04 Certain Financial Covenant Defaults............................. 68
ARTICLE IX - THE AGENT..................................................... 68
9.01 Appointment and Authorization; "Agent".......................... 68
9.02 Delegation of Duties............................................ 69
9.03 Liability of Agent.............................................. 69
9.04 Reliance by Agent............................................... 69
9.05 Notice of Default............................................... 70
9.06 Credit Decision................................................. 70
9.07 Indemnification of Agent........................................ 71
9.08 Agent in Individual Capacity.................................... 71
9.09 Successor Agent................................................. 72
9.10 Withholding Tax................................................. 72
9.11 Co-Agents 74
ARTICLE X - MISCELLANEOUS.................................................. 74
10.01 Amendments and Waivers.......................................... 74
10.02 Notices......................................................... 75
10.03 No Waiver; Cumulative Remedies.................................. 76
-iii-
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10.04 Costs and Expenses.............................................. 76
10.05 Company Indemnification......................................... 77
10.06 Payments Set Aside.............................................. 77
10.07 Successors and Assigns.......................................... 78
10.08 Assignments, Participations, etc................................ 78
10.09 Confidentiality................................................. 80
10.10 Set-off......................................................... 81
10.11 Notification of Addresses, Lending Offices, Etc................. 81
10.12 Counterparts.................................................... 81
10.13 Severability.................................................... 82
10.14 No Third Parties Benefited...................................... 82
10.15 Governing Law and Jurisdiction.................................. 82
10.16 Waiver of Jury Trial............................................ 82
10.17 Entire Agreement................................................ 83
10.18 Amendment and Restatement of Existing Facility.................. 83
SCHEDULES:
---------
2.01 Commitments and Pro Rata Shares
10.02 Offshore and Domestic Lending Offices;
Addresses for Notices
EXHIBITS:
--------
A Form of Notice of Borrowing
B Form of Notice of Conversion/Continuation
C Form of Promissory Note
D Form of Compliance Certificate
E-1 Form of Legal Opinion of Company's Associate
General Counsel
E-2 Form of Legal Opinion of Company's Outside Counsel
F Form of Assignment and Acceptance
G Subordinated Note Indenture
-iv-
