EXHIBIT 10.11
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Revolving Credit Agreement
(Bridge Facility)
Dated as of November 24, 1999
among
Xxxxxx Electronics Corporation
The Banks named herein
And
Bank of America, N.A.
as Administrative Agent
Lead Arrangers and Book Managers:
Banc of America Securities LLC and
Xxxxxxx Xxxxx Barney Inc.
[LOGO]
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SECTION 1
DEFINITIONS
1.1 Definitions................................................................ 1
SECTION 2
THE CREDIT
2.1 The Commitments............................................................ 9
2.2 The Loans.................................................................. 10
2.3 Requests for Base Rate and Eurodollar Loans................................ 10
2.4 Limitations on Borrowing................................................... 10
2.5 Interest and Principal on Base Rate Loans.................................. 10
2.6 Interest and Principal on Eurodollar Loans................................. 10
2.8 Loan Accounts.............................................................. 11
2.10 Conversion of Loans Between Eurodollar Loans and Base Rate Loans and
Conversion of Interest Periods of Eurodollar Loans......................... 11
2.11 Disbursements and Payments................................................. 12
2.12 Facility Fee............................................................... 13
2.13 Prepayments and Reductions in Total Commitment............................. 13
SECTION 3
PAYMENT OF COSTS AND REDUCTION OF THE COMMITMENT
3.1 Indemnification Upon Failure to Pay Eurodollar Loan........................ 14
3.2 Increased Costs............................................................ 14
3.3 Taxes...................................................................... 15
3.4 Prepayment................................................................. 16
3.5 Pro Rata Reduction of Commitments by Borrower.............................. 16
3.6 Reduction of One Bank's Commitment by Borrower............................. 16
3.7 Notice of Reductions....................................................... 17
3.8 Designation of Replacement Bank............................................ 17
3.9 Effect of Reduction of Commitment.......................................... 17
3.10 Accrued Fees............................................................... 17
3.11 Survival................................................................... 17
SECTION 4
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
4.1 Inability to Determine Eurodollar Rate..................................... 18
4.2 Illegality................................................................. 18
SECTION 5
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Signing Date....................................... 19
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5.2 Conditions Precedent to Effective Date...................................... 19
5.3 Conditions Precedent to Loans............................................... 20
SECTION 6
REPRESENTATIONS AND WARRANTIES
6.1 Authority of Borrower....................................................... 20
6.2 Binding Obligations......................................................... 20
6.3 Incorporation of Restricted Subsidiaries.................................... 21
6.4 No Contravention............................................................ 21
6.5 Notices..................................................................... 21
6.6 Financial Statements........................................................ 21
6.7 ERISA....................................................................... 21
6.8 Regulation U; Investment Company Act........................................ 21
6.9 Taxes....................................................................... 22
6.10 Insurance................................................................... 22
6.11 Liens....................................................................... 22
6.12 Litigation.................................................................. 22
6.13 Environmental Compliance.................................................... 22
6.14 Year 2000................................................................... 22
6.15 Disclosure.................................................................. 22
SECTION 7
AFFIRMATIVE COVENANTS OF BORROWER
7.1 Use of Proceeds of Loans.................................................... 23
7.2 Management of Business...................................................... 23
7.3 Notice of Certain Events.................................................... 23
7.4 Records..................................................................... 24
7.5 Information Furnished....................................................... 24
7.6 Execution of Other Documents................................................ 25
7.7 ERISA....................................................................... 25
7.8 Administrative Agent's Fees................................................. 25
7.9 Compliance with Law......................................................... 25
7.10 Compliance with Agreements.................................................. 25
7.11 Maintenance of Insurance.................................................... 26
SECTION 8
NEGATIVE COVENANTS OF BORROWER
8.1 Liens....................................................................... 26
8.2 Mergers, Liquidations and Sales of Assets................................... 27
8.3 Defaults.................................................................... 28
8.4 Compliance with Regulations................................................. 28
8.5 Financial Covenants......................................................... 28
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SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.......................................................... 29
9.2 Recovery of Amounts Due.................................................... 32
9.3 Rights Cumulative.......................................................... 32
SECTION 10
THE BANKS
10.1 Administration of Loan..................................................... 33
10.2 Representations By Banks................................................... 33
SECTION 11
MISCELLANEOUS PROVISIONS
11.1 Amendments and Waivers..................................................... 33
11.2 Notices.................................................................... 33
11.3 Waiver..................................................................... 34
11.4 California Law............................................................. 34
11.5 Headings................................................................... 34
11.6 Accounting Terms........................................................... 34
11.7 Counterparts............................................................... 34
11.8 Written Disclosure......................................................... 34
11.9 Singular; Plural........................................................... 35
11.10 Illegality................................................................. 35
11.11 Assignments................................................................ 35
11.12 Obligations Several........................................................ 35
11.13 Participations............................................................. 35
11.14 Fees and Expenses.......................................................... 36
11.15 Indemnity.................................................................. 37
11.16 Confidentiality............................................................ 37
11.17 Waiver of Right to Trial by Jury........................................... 39
EXHIBITS
A Form of Loan Request
B Relations Among the Banks and Agents
C Addresses and Lending Offices of Banks
D Existing Liens
E Form of Opinion of General Counsel
F Compliance Certificate
G Assignment and Acceptance
SCHEDULE
1 Name of Banks and Commitments
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REVOLVING CREDIT AGREEMENT
(BRIDGE FACILITY)
THIS REVOLVING CREDIT AGREEMENT (BRIDGE FACILITY) ("Agreement") is entered
into as of November 24, 1999 (the "Signing Date") among XXXXXX ELECTRONICS
CORPORATION, a corporation organized and existing under the laws of Delaware
("Borrower"), the banks named herein (collectively, together with any other
lenders that become parties hereto pursuant to Section 3.8 or 11.11, the "Banks"
and individually a "Bank") and Bank of America, N.A., as administrative agent
for the Banks (in such capacity "Administrative Agent").
SECTION 1
DEFINITIONS
1.1 Definitions.
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"Applicable Amount" means, for the facility fee and Eurodollar Loans, the
amount (expressed in basis points per annum) set forth in the chart below
opposite the applicable period:
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Applicable Amount
(in basis points per annum)
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Period Eurodollar Rate Facility Fee
+
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Effective Date 82.5 17.5
through June 30,
2000
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July 1, 2000 and 107.5 17.5
thereafter
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"Approved Bank Affiliate" means a Person that is a subsidiary of a Bank or
of a Person of which a Bank is a subsidiary, and which is either engaged
primarily in the business of commercial banking or, if not so engaged, which has
been approved by the Borrower and Administrative Agent (provided that Borrower's
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consent shall not be unreasonably withheld).
"Arrangers" means BAS and Xxxxxxx Xxxxx Barney Inc.
"Attorney Costs" means and includes all fees and disbursements of any law
firm or other external counsel and the allocated cost of internal legal services
and all disbursements of internal counsel.
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"Authorized Designee" means the chief executive officer, the vice chairman,
the chief financial officer, treasurer or the assistant treasurer of Borrower,
or any other officer of Borrower specified as being an Authorized Designee in
the certificate delivered pursuant to Section 5.2(c).
"Availability Period" means the period commencing on the Effective Date and
ending on the Termination Date.
"Bank of America" means Bank of America, N.A. in its capacity as a Bank.
"BAS" means Banc of America Securities LLC.
"Base Rate" means the higher of: (a) the rate of interest publicly
announced from time to time by Bank of America as its "reference rate," which is
a rate set by Bank of America based upon various factors including Bank of
America's costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which may be
priced at, above, or below such announced rate; and (b) one-half percent per
annum above the Federal Funds Rate. Any change in the reference rate announced
by Bank of America shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Base Rate Loan" means a Loan bearing interest based on the Base Rate
calculated pursuant to Section 2.5.
"Borrowing Date" means a date on which funds are advanced to Borrower by
one or more Banks pursuant to a Loan Request.
"Business Day" means a day other than a Saturday or Sunday on which banks
are open for business in both San Francisco, California and New York, New York.
"Commercial Paper" means short term commercial paper (with a maturity date
not in excess of 270 days from the date of its issuance) issued by Borrower (a)
pursuant to the exemption from registration contained in Section 4(2) of the
Securities Act of 1933, as amended or modified from time to time, or (b)
pursuant to the exemption from registration contained in Section 3(a)(3) of the
Securities Act of 1933, as amended or modified from time to time, with respect
to which a recognized rating agency has taken this Agreement into account in the
rating of such short term commercial paper.
"Commitment" of each Bank means the dollar amount set forth opposite such
Bank's name on Schedule 1 hereto, as such amount may be reduced or changed
pursuant to Sections 3.5 and 3.6.
"Compliance Certificate" means a certificate in the form of Exhibit F,
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properly completed and signed by Borrower's Treasurer or an Assistant Treasurer.
"Consolidated Adjusted Net Worth" means, as of the date of determination
thereof, the consolidated stockholders equity of Borrower and its Subsidiaries
in accordance with GAAP adjusted by adding back the amount by which such
consolidated stockholders equity has been reduced (or by subtracting the amount
by which stockholders equity has been increased) on
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account of (a) changes subsequent to December 31, 1992 in the long term
liability of Borrower and its Subsidiaries for post-retirement benefits other
than pensions and (b) specified material non-cash adjustments resulting from the
adoptions of future pronouncements of the Financial Accounting Standards Board.
"Consolidated EBITDA" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
such Consolidated Net Income, (d) the amount of depreciation and amortization
expense deducted in determining such Consolidated Net Income, (e) for each
fiscal quarter in the fiscal year ending December 31, 1999, (i) the amount of
charges taken in connection with the cancellation of the contract with Asia
Pacific Mobile Telecommunications, up to an aggregate amount of $92,000,000 for
all such fiscal quarters, and (ii) the amount of charges taken in connection
with development costs and schedule delays at Xxxxxx Space and Communication up
to an aggregate amount of $125,000,000 for all such fiscal quarters, (f) for the
last fiscal quarter of the fiscal year ending December 31, 1999, (i) if a non-
cash charge is taken in connection with the write-off of equity investment in
ICO Global Communications, the amount of such non-cash charge up to an aggregate
amount of $62,000,000 and (ii) if a change in business strategy related to
DirecTV Japan, Ltd. results in cash and/or non-cash charges, the amount of such
cash and/or non-cash charges up to an aggregate amount of $250,000,000, and (g)
for each fiscal quarter in the fiscal year ending December 31, 2000, the amount
of non-cash charges taken in connection with ICO Global Communications, the
Xxxxxx Network Systems wireless business and PanAmSat launch delays, up to an
aggregate amount for all such fiscal quarters of (x) $500,000,000 minus (y) the
amount of the charge, if any, added pursuant to clause (f)(i) above; minus (h)
for each fiscal quarter in the fiscal year ending December 31, 2000 , the amount
of cash losses (whether or not accounted for as charges under GAAP) in
connection with DirecTV Japan, Ltd., but only if such cash losses were reflected
in the charges, if any, added pursuant to clause (f)(ii); plus (i) for each
fiscal quarter in the fiscal year ending December 31, 2000, if any change in
business strategy regarding DirecTV Japan, Ltd. results in non-cash charges,
the amount of such non-cash charges up to an aggregate amount of $150,000,000,
minus the amount of non-cash charges, if any, added pursuant to clause (f)(ii)
above.
"Consolidated Funded Indebtedness" means, as of any date of determination,
for Borrower and its Subsidiaries on a consolidated basis, the sum of (a) the
outstanding principal amount of all obligations and liabilities, whether current
or long-term, for borrowed money (including Loans hereunder), and (b) that
portion of obligations with respect to capital leases that are capitalized in
the consolidated balance sheet of Borrower and its Subsidiaries in excess of an
aggregate amount of $25,000,000.
"Consolidated Interest Charges" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, fees, charges and related expenses payable by Borrower and its
Subsidiaries in connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets and imputed interest
associated with the assumption of liabilities relating to programming contracts
under purchase accounting in accordance with GAAP, in each case to the extent
treated as interest in accordance with GAAP, and (b) the portion of rent payable
by Borrower and its
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Subsidiaries with respect to such period under capital leases that is treated as
interest in accordance with GAAP.
"Consolidated Net Income" means, for any period, for Borrower and its
Subsidiaries on a consolidated basis, the net income of Borrower and its
Subsidiaries from continuing operations after extraordinary items (excluding
gains or losses from Dispositions of assets) for that period.
"Consolidated Tangible Net Worth" means, at any date of determination,
Consolidated Adjusted Net Worth less the consolidated intangible assets of
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Borrower and its Subsidiaries, determined in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"Debt Rating" means, as of any date of determination, the rating as
determined by either Standard & Poor's Ratings Group or Xxxxx'x Investors
Service, Inc. (collectively, the "Debt Ratings"); of (a) the Borrower's senior
unsecured long-term debt or (b) if the foregoing debt is not outstanding, then
the rating of the Multi-Year Credit Agreement or the implied rating of senior
unsecured and non-credit enhanced debt securities, provided that if both ratings
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in this clause (b) have been issued then both shall apply; or (c) if neither (a)
nor (b) apply, then the rating of long-term debt issued by equipment trust
guaranteed by Borrower; provided that if a Debt Rating is issued by both of such
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rating agencies, then the lower of such credit ratings shall apply unless the
split in credit ratings is more than one level, in which case the level one
level higher than the lower rating shall apply. Initially, the Debt Ratings
shall be determined from the certificate delivered pursuant to Section 5.2(d).
Thereafter the credit ratings shall be determined from the most recent public
announcement of any changes in such credit ratings.
"Default Rate" means an interest rate equal to the Base Rate plus the
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Applicable Amount, if any, applicable to Base Rate Loans plus 2% per annum, to
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the fullest extent permitted by applicable Laws; provided, however, that with
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respect to a Eurodollar Loan, the Default Rate shall be an interest rate equal
to the interest rate (including any Applicable Amount) otherwise applicable to
such Loan plus 2% per annum.
"Effective Date" means the date on or before December 10, 1999 that the
conditions set forth in Section 5.2 are satisfied or waived by the Majority
Banks.
"Eligible Assignee" means a Person which can lawfully fulfill all of the
obligations of a Bank hereunder and is (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $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
country in which it is organized or another country which is also a member of
the OECD; or (c) any Person engaged primarily in the business of commercial
banking and that is a subsidiary of a Bank or of a Person of which a Bank is a
subsidiary.
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"Environmental Laws" means all foreign, federal, state or local laws,
statutes, 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 Authority,
in each case relating to environmental, health, safety and land use matters
applicable to any property.
"ERISA" means the Employee Retirement Income Security Act of 1974, as in
effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not incorporated)
under common control with Borrower or any Subsidiary of Borrower within the
meaning of Section 414(b), 414(c) or 414(m) of Internal Revenue Code of 1986, as
amended.
"Eurodollar Banking Day" means a day on which banks are open for business
in San Francisco, California, New York, New York and the applicable offshore
dollar interbank market and dealing in U. S. Dollar deposits.
"Eurodollar Loan" means a Loan at the rate of interest calculated pursuant
to Section 2.6.
"Eurodollar Rate" means for each Interest Period of a Eurodollar Loan the
arithmetic mean of the rates of interest rounded to the nearest 1/100 of one
percent as notified to the Administrative Agent by the Reference Banks at which
U.S. Dollar deposits for such Interest Period and in an amount comparable to the
Principal Amount of such Eurodollar Loan would be offered by such Reference
Banks to major banks in the London offshore dollar interbank market upon request
of such banks at approximately 11:00 a.m. London time two Eurodollar Banking
Days prior to the first day of such Interest Period.
"Event of Default" means any event specified in Section 9.1.
"Federal Funds Rate" means, for any day, the rate set forth in the weekly
statistical release designated as H.15(519), or any successor publication,
published by the Federal Reserve Board (including any such successor,
"H.15(519)") for such day opposite the caption "Federal Funds (Effective)". If
on any relevant day such rate is not yet published in H.15(519), the rate for
such day will be the rate set forth in the daily statistical release designated
as the Composite 3:30 p.m. Quotations for U.S. Government Securities, or any
successor publication, published by the Federal Reserve Bank of New York
(including any such successor, the "Composite 3:30 p.m. Quotation") for such day
under the caption "Federal Funds Effective Rate". If on any relevant day the
appropriate rate for such day is not yet published in either H.15(519) or the
Composite 3:30 p.m. Quotations, the rate for such day will be the arithmetic
mean of the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York time) on that day by each of three leading brokers
of Federal funds transactions in New York City selected by Administrative Agent.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
"GAAP" means generally accepted accounting principles set forth from time
to time in the opinions and pronouncements of the Accounting Principles Board
and the American Institute
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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 accounting profession), or in such
other statements by such other entity as may be in general use by significant
segments of the U.S. accounting profession, which are applicable to the
circumstances as of the date of determination.
"Governmental Authority" means (a) any international, foreign, federal,
state, county or municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality, central bank or public body, or (c) any court,
administrative tribunal or public utility.
"Interest Payment Date" means, with respect to each Eurodollar Loan, the
last day of each Interest Period; provided, however, that if any Interest Period
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exceeds three months, "Interest Payment Date" shall mean the 90th day and the
last day of the third month of such Interest Period, respectively, as well as
the last day of the relevant Interest Period; and, with respect to each Base
Rate Loan, means the 10th day of each January, April, July, and October and the
Termination Date. If any day specified herein is not a Business Day or, in the
case of a Eurodollar Loan, a Eurodollar Banking Day, then the relevant Interest
Payment Date shall be the next succeeding Business Day or Eurodollar Banking
Day, as applicable, except as otherwise provided in the definition of Interest
Period. Notwithstanding any other provision herein, interest accruing at the
Default Rate shall be payable from time to time at any time upon demand of
Administrative Agent
"Interest Period" means with respect to each Eurodollar Loan, a period of
one, two, three or six months as selected by Borrower by a Loan Request
delivered to Administrative Agent in accordance with Section 2.3, subject to the
following:
(i) If the term of an Interest Period is not designated, a period of
one month shall be deemed selected for the relevant Eurodollar Loan;
(ii) The first Interest Period for each Loan shall commence on the
date such Loan is disbursed and each succeeding Interest Period for such
Loan shall commence on the last day of the preceding Interest Period for
such Loan;
(iii) In the case of a Eurodollar Loan, if the last day of an Interest
Period falls on a day that is not a Eurodollar Banking Day, the Interest
Period involved shall be extended to the next following Eurodollar Banking
Day unless as a result thereof it would fall into the next calendar month,
in which case the end of the Eurodollar Interest Period shall be the
preceding Eurodollar Banking Day, and in either case the next succeeding
Eurodollar Interest Period shall be measured from the last day of the
Interest Period as so adjusted;
(iv) If an Interest Period for a Eurodollar Loan commences on the
last Eurodollar Banking Day of a calendar month, it shall end on the last
Eurodollar Banking Day of a calendar month; and
(v) No Interest Period shall end on a day later than the Termination
Date.
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"Investment Grade" means a Debt Rating by S&P of BBB- or better and Debt
Rating by Moody's of Baa3 or better.
"Lending Office" means with respect to any Bank as the context shall
require, the branch office of such Bank designated as the Lending Office of such
Bank in Exhibit C attached hereto and incorporated herein by reference; or any
other branch office or affiliate of such Bank hereafter selected and notified to
Borrower and Administrative Agent from time to time by such Bank; provided that
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any Bank may from time to time by notice to Borrower and Administrative Agent
designate separate Lending Offices for its Eurodollar Loans and/or its Base Rate
Loans, in which case any reference to the Lending Office of such Bank shall be
deemed to refer to any or all of such offices, branches or affiliates as the
context may require.
"Letter Agreement" means that letter agreement among BAS, Administrative
Agent and Borrower dated November 3, 1999 specifying Arrangers' and
Administrative Agent's compensation for services hereunder as such letter
agreement may from time to time be amended, restated, reissued or otherwise
modified.
"Leverage Ratio" means, as of the end of any fiscal quarter, for the
Borrower and its Subsidiaries on a consolidated basis, the ratio of (a)
Consolidated Funded Indebtedness as of such date to (b) Consolidated EBITDA for
the period of the four fiscal quarters ended on such date.
"Lien" means any trust deed, mortgage, pledge, hypothecation, assignment,
security interest, lien, charge or encumbrance, or preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever
(including, without limitation, the lien of an attachment, judgment or
execution, or any conditional sale or other title retention agreement, any
capitalized lease, and the filing of, or agreement to give, any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction, but excluding financing statements filed to give notice of leases
in the ordinary course of business).
"Loan" or "Loans" means the loans described in Section 2, any of which may
be at any time Base Rate Loans or Eurodollar Loans.
"Loan Request" means a notice given by Borrower pursuant to Section 2.3 or
2.4.
"Majority Banks" means those Banks whose Commitments constitute more than
51% of the Total Commitment as such Total Commitment may be adjusted from time
to time pursuant to the terms of this Agreement, or if the Commitments have
terminated, those Banks holding at least 51% of the outstanding Loans.
"Material Adverse Change" means (a) any adverse change which could
reasonably be expected to materially impair Borrower's ability to timely and
fully perform its obligations under this Agreement or (b) any material adverse
change in the business, assets, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of Borrower and its
Subsidiaries, taken as a whole.
"Moody's" means Xxxxx'x Investors Service, Inc.
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"Multi-Year Credit Agreement" means the Amended and Restated Revolving
Credit Agreement (Multi-Year Facility) dated as of November 24, 1999 among
Borrower, the banks named therein, Bank of America, as administrative agent,
Xxxxxx Guaranty Trust Company of New York, as syndication agent, and Citicorp
USA, Inc. and The Chase Manhattan Bank, as documentation agents, as amended from
time to time.
"Normal Percentage" means, with respect to each Bank, the percentage under
the heading "Normal Percentage" set forth opposite such Bank's name on Schedule
1 hereto, as such amount may be reduced or changed pursuant to Section 3.6 or
Section 11.11.
"Note" means any promissory note delivered pursuant to Section 2.8
(collectively, the "Notes").
"Notice of Assignment and Acceptance" means a Notice of Assignment and
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Acceptance substantially in the form of Exhibit G.
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"Person" means any individual, firm, company, corporation, joint venture,
joint-stock company, trust, unincorporated organization, Governmental Authority,
or any association or partnership (whether or not having separate legal
personality) of two or more of the foregoing.
"Plan" means any employee benefit pension plan which is subject to the
provisions of Title IV of ERISA and which is maintained for employees of
Borrower or any Subsidiary.
"Principal Amount" means, when used with reference to any Loan, the amount
requested in the Loan Request relating thereto and made available to Borrower by
the Banks hereunder.
"Principal Repayment Date" means, with respect to each Base Rate Loan, the
Termination Date, and with respect to each Eurodollar Loan, the last day of the
Interest Period for such Loan.
"Reference Banks" means Bank of America and Citibank, N.A.
"Reportable Event" means any of the events set forth in Section 4043(b) of
ERISA or the regulations thereunder excluding those events for which the 30-day
notice requirement is waived, a withdrawal from a Plan described in Section 4063
of ERISA, or a cessation of operations described in Section 4062(e) of ERISA.
"Restricted Subsidiaries" means each Subsidiary (i) having assets exceeding
10% of the Consolidated Tangible Net Worth of Borrower and its Subsidiaries on a
consolidated basis or (ii) having operating revenues exceeding 10% of the
operating revenues of Borrower and its Subsidiaries on a consolidated basis, in
each case as shown on the financial statements dated as of June 30, 1999 and,
thereafter, as shown on the audited consolidated financial statements of
Borrower and its Subsidiaries as of the end of the fiscal year immediately
preceding the date of determination; provided, however, that "Restricted
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Subsidiary" shall not include any Subsidiary which is a corporation created
solely to purchase receivables from Borrower or any of its Subsidiaries, and
which would not, in accordance with GAAP, be included in the consolidated
financial statements of Borrower.
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"S&P" means Standard & Poor's Ratings Group.
"Shareholders' Equity" means, as of any date of determination for Borrower
and its Subsidiaries on a consolidated basis, shareholders' equity as of that
date determined in accordance with GAAP.
"Signing Date" means the date of this Agreement.
"Subsidiaries" (individually a "Subsidiary") means those corporations or
entities of which Borrower owns more than 50% of the voting securities. If
Borrower, subject to the terms hereof, permits its ownership to fall to 50% or
below of outstanding voting shares of any Subsidiary, such Subsidiary shall
thereupon cease to be a Subsidiary for all purposes hereof.
"Tax" and "Taxes" mean all taxes, levies, imposts, duties, fees or other
charges of whatsoever nature however imposed by any country or any subdivision
or authority of or in that country in any way connected with this Agreement or
any instrument or agreement required hereunder, and all interest, penalties or
similar liabilities with respect thereto, except such taxes as are imposed on or
measured by any Bank's net income or capital and franchise taxes, by the country
or any subdivision or authority of or in that country in which such Bank's
principal office or actual Lending Office is located.
"Termination Date" means November 22, 2000; provided, however, that,
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notwithstanding any other provisions of this Agreement to the contrary, the
Termination Date shall occur upon the earlier termination in whole of the
Commitments pursuant to Section 3.5 or 9.1.
"364-Day Credit Agreement" means the Revolving Credit Agreement (364-day
Facility) dated as of November 24, 1999 among Borrower, the banks parties
thereto, Bank of America, N.A., as administrative agent for such banks, Citicorp
USA, Inc., as Syndication Agent and Deutsche Bank AG, New York Branch, as
Documentation Agent, as amended from time to time.
"Total Commitment" means the aggregate amount of the Commitments.
"Unmatured Event of Default" means an event which with the passage of time
or the giving of notice, or both, would become an Event of Default.
"Voting Stock" means capital stock of Borrower having voting power under
ordinary circumstances to elect directors of Borrower.
"Withdrawal Liability" means, as of any determination date, the aggregate
amount of the liabilities, if any, pursuant to Section 4201 of ERISA if the
Borrower or any ERISA Affiliate made a complete withdrawal from all Plans and
any increase in contributions pursuant to Section 4243 or ERISA.
SECTION 2
THE CREDIT
2.1 The Commitments. From time to time, during the Availability Period,
---------------
each Bank severally agrees to lend to Borrower in U. S. Dollars the amount set
forth opposite such Bank's
-9-
name on Schedule 1 hereto, subject to reduction of such amount at Borrower's
option, pursuant to Sections 3.5 and 3.6. Each Bank shall make available to
Borrower Base Rate Loans and Eurodollar Loans up to the amount of such Bank's
Commitment.
2.2 The Loans. Each Loan shall be a Base Rate Loan or a Eurodollar Loan
---------
and shall be in U. S. Dollars. Each Loan shall be in the minimum amount of
$5,000,000 with any additional amounts in integral multiples of $1,000,000.
This is a revolving credit, and Borrower may, during the Availability Period,
reborrow amounts repaid or prepaid. No Loan nor any part of any Loan shall be
repaid except at the times and in the manner expressly provided herein.
2.3 Requests for Base Rate and Eurodollar Loans. Each Base Rate Loan and
-------------------------------------------
Eurodollar Loan shall be made upon irrevocable written or telephonic notice,
confirmed promptly in writing, substantially in the form of Exhibit A hereto, by
---------
Borrower to Administrative Agent received by Administrative Agent not later than
9:00 a.m. California time not less than three (3) Eurodollar Banking Days prior
to the Borrowing Date (which must be a Eurodollar Banking Day) of a Eurodollar
Loan and not later than 9:00 a.m. California time on the proposed Borrowing Date
(which must be a Business Day) of a Base Rate Loan. Upon receipt of a request
for a Base Rate Loan and Eurodollar Loan, Administrative Agent shall promptly
notify the Banks of the amount, the Interest Period(s), if applicable, and the
Borrowing Date requested by Borrower. After giving effect to any borrowing of
Eurodollar Loans or any conversion or continuation of Eurodollar Loans, there
shall not be more than 10 different Interest Periods for Eurodollar Loans in the
aggregate at any time.
2.4 Limitations on Borrowing. Borrower may not request any Loans pursuant
------------------------
to Section 2.3 at any time that any amount is available to be borrowed under the
364-Day Credit Agreement or the Multi-Year Credit Agreement; provided that
--------
Borrower may request Loans hereunder if it simultaneously requests the maximum
amount available under the 364-Day Credit Agreement and the Multi-Year
Agreement.
2.5 Interest and Principal on Base Rate Loans. Subject to Section 2.11(f)
-----------------------------------------
herein, the outstanding Principal Amount of each Base Rate Loan shall bear
interest until payment is due in full (computed daily on the basis of a 365 or
366, as the case may be, day year and actual days elapsed) at the rate per annum
equal to the Base Rate. Borrower shall pay interest on each Base Rate Loan on
each Interest Payment Date for the interest accruing since the previous Interest
Payment Date on such Base Rate Loan. Borrower shall repay in full the Principal
Amount of each Base Rate Loan on the Termination Date or as provided in Section
2.10(c).
2.6 Interest and Principal on Eurodollar Loans. (a) Subject to Section
------------------------------------------
2.11(f) herein, the outstanding Principal Amount of each Eurodollar Loan shall
bear interest until payment is due in full (computed daily on the basis of a
three hundred sixty (360) day year and actual days elapsed) at a rate per annum
equal to the Eurodollar Rate plus the Applicable Amount. Borrower shall pay
----
interest on each Eurodollar Loan on each Interest Payment Date for such
Eurodollar Loan. Borrower shall repay in full the Principal Amount of each
Eurodollar Loan on the last day of the Interest Period for such Eurodollar Loan
or as provided in Section 2.10(c).
(b) If any Reference Bank's Commitment shall terminate (otherwise than on
termination of all the Commitments), or for any reason whatsoever the Reference
Bank shall
-10-
cease to be a Bank hereunder, that Reference Bank shall thereupon cease to be a
Reference Bank, and the Eurodollar Rate shall be determined on the basis of the
rates as notified by the remaining Reference Banks. Each Reference Bank shall
use its best efforts to furnish quotations of rates to the Administrative Agent
as contemplated hereby. If any of the Reference Banks shall be unable or
otherwise fails to supply such rates to the Administrative Agent upon its
request, the rate of interest shall be determined on the basis of the quotations
of the remaining Reference Banks or Reference Bank.
2.7 [Intentionally omitted.]
2.8 Loan Accounts. Each Bank shall open and maintain on its books one or
-------------
more loan accounts in Borrower's name. Each loan account shall show (without
duplication) as debits thereto each Bank's portion of each Base Rate Loan and/or
Eurodollar Loan and as credits thereto all Base Rate Loan and/or Eurodollar Loan
payments received by such Bank for the account of such Bank and applied to
principal so that the balance of the loan account(s) at all times reflect the
principal amount due each Bank from Borrower as Base Rate Loans and Eurodollar
Loans. All entries in said books shall be presumptive evidence of the making of
each Base Rate Loan and Eurodollar Loan, the obligation of Borrower to repay
each Base Rate Loan and Eurodollar Loan, and all payments received and disbursed
by such Bank. Borrower agrees that if, in the opinion of any Bank, a promissory
note or other evidence of debt is required or appropriate to reflect or enforce
any Loans outstanding to or to be made by such Bank, then Borrower shall
promptly execute and deliver to such Bank one or more promissory notes payable
to such Bank to evidence the Loans outstanding to such Bank under this Agreement
from time to time, together with such documents as such Bank may reasonably
request to evidence the due authorization, execution, delivery and
enforceability of such notes. If any notes are issued hereunder, Administrative
Agent and Borrower may treat the payee of that note as the owner of such note
for all purposes.
2.9 [Intentionally omitted.]
2.10 Conversion of Loans Between Eurodollar Loans and Base Rate Loans and
--------------------------------------------------------------------
Conversion of Interest Periods of Eurodollar Loans. (a) On any Eurodollar
--------------------------------------------------
Banking Day Borrower may convert on a pro rata basis among the Banks any
outstanding Base Rate Loans or Eurodollar Loans into any other type of Loan
available to Borrower hereunder, or Borrower may change the Interest Period of
any Eurodollar Loan to another Interest Period available under this Agreement,
subject to the following limitations:
(i) No conversion of any Eurodollar Loan into any other Loan and no
conversion of the Interest Period of any Eurodollar Loan may be made except
on the last day of an Interest Period with respect thereto; and
(ii) Any conversion shall be preceded by an irrevocable written or
telephonic notice from Borrower that it elects such conversion, which
notice shall be received by Administrative Agent at least three (3)
Eurodollar Banking Days prior to the date requested for such conversion
from or into a Eurodollar Loan or conversion of the Interest Period of a
Eurodollar Loan.
-11-
(b) Banks shall not be obligated to make or continue any Eurodollar Loan
when any Event of Default has occurred and is continuing, but any outstanding
Eurodollar Loan shall be automatically converted to a Base Rate Loan on the last
day of the Interest Period for which a Eurodollar Rate was determined by
Administrative Agent following occurrence of such Event of Default, and, unless
Section 2.11(f) is applicable, Borrower shall be obligated to pay interest at
the Base Rate from the date any Loan is so converted until such Loan is repaid
in full regardless of the date when Administrative Agent obtains knowledge of
such Event of Default.
(c) Each conversion of a Loan into a Base Rate Loan or a Eurodollar Loan,
as the case may be, shall be effected by each Bank, on behalf of Borrower, as
applicable, by making a simultaneous payment of the relevant Eurodollar Loan, or
Base Rate Loan, as the case may be, from the proceeds of the new Loans,
procedures with respect thereto to be governed by the provisions of Section 2.3,
except that disbursement shall be made by means of such payment rather than
directly to Borrower to the extent applicable with respect to each Bank.
(d) If upon the expiration of any Interest Period applicable to
Eurodollar Loans, Borrower has failed to select a new Interest Period to be
applicable thereto, or if any Event of Default or Unmatured Event of Default
shall then exist, Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
2.11 Disbursements and Payments. (a) Each Base Rate Loan and Eurodollar
--------------------------
Loan shall be made on a pro rata basis by Banks, and each Bank's portion of each
Loan shall be determined by application of its Normal Percentage. Each Bank's
interest in each Loan and each payment to such Bank under this Agreement shall
be for the account of such Bank's Lending Office.
(b) Each Loan and each payment of principal, interest and other sums
under this Agreement shall be made in immediately available funds (or such other
funds as Administrative Agent may require) at Bank of America's Agency
Administrative Services-West, 0000 Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxxxx 00000, ABA
# 000000000, Acct No. 3750836479, Ref: Xxxxxx Electronics Corporation or such
other office designated by Administrative Agent from time to time.
(c) Each Bank agrees it will make the funds which it is to advance
hereunder available to Bank of America's Agency Administrative Services-West,
0000 Xxxxxxx Xxxx., Xxxxxxx, Xxxxxxxxxx 00000, ABA # 000000000, Acct No.
3750836479 , Ref: Xxxxxx Electronics Corporation or such other office designated
by Administrative Agent from time to time not later than 11:00 a.m. California
time on the Borrowing Date, and Administrative Agent will thereupon promptly
advance to Borrower the amount so received from Banks.
(d) Payment of all sums under this Agreement shall be made by Borrower to
Administrative Agent, and the latter shall promptly distribute to each Bank its
share of such payments. Each payment by Borrower shall be made without setoff
or counterclaim and not later than 11:00 a.m. California time on the day such
payment is due. All sums received after such time shall be deemed received on
the next Business Day.
-12-
(e) If Administrative Agent makes available to Borrower an amount due
from any Bank which such Bank fails to make available to Administrative Agent,
or if Administrative Agent makes available to any Bank an amount due from
Borrower which Borrower fails to make available to Administrative Agent,
Borrower or such Bank, as the case may be, shall, on demand, refund such amount
to Administrative Agent, together with interest thereon for the period during
which such amount was available to Borrower or such Bank, as the case may be, at
the Federal Funds Rate.
(f) Any sum of principal or interest payable by Borrower hereunder if not
paid when due shall bear interest (payable on demand) from its due date until
payment in full (computed daily on the basis of a 365 or 366, as the case may
be, day year and actual days elapsed) at a rate per annum equal to the Default
Rate.
2.12 Facility Fee. Borrower shall pay Administrative Agent for the
------------
account of the Banks, a facility fee at the rate per annum equal to the
Applicable Amount therefor on the Total Commitment (without regard to the amount
of Loans outstanding at any time hereunder and without giving effect to any
reduction pursuant to Section 2.1(c)) during the Availability Period; provided,
--------
however, following any reduction in the Total Commitment pursuant to Section 3.5
-------
or 3.6 (but not a reduction pursuant to Section 2.1(c)) the computation of the
facility fee shall be based upon such reduced Total Commitment as of the
effective date of such reduction. The facility fee shall be computed on a
calendar quarter basis. The facility fee shall be calculated on the basis of a
360-day year and actual days elapsed, which results in a higher fee than if a
365/366-day year were used, and shall be payable on the 10th day of each
January, April, July and October (for the facility fee accrued during the
previous calendar quarter) and on the Termination Date.
2.13 Prepayments and Reductions in Total Commitment.
----------------------------------------------
(a) Mandatory Prepayments and Commitment Reductions Due to Issuance of
------------------------------------------------------------------
Debt Securities. On the date of receipt by Borrower of the cash proceeds (any
---------------
such proceeds, net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith, including reasonable legal
fees and expenses, being "Net Securities Proceeds") from the issuance of any
debt securities of Borrower in a public offering or a transaction consummated
under Rule 144A promulgated by the Securities and Exchange Commission which
transaction contains the right of the purchasers to register securities issued
under such offering pursuant to the Securities Act of 1933 or to exchange such
securities for securities issued under the Securities Act of 1933, Borrower
shall prepay the Loans (up to the outstanding principal amount thereof) and the
Total Commitment shall be permanently reduced, in each case in an aggregate
amount equal to such Net Securities Proceeds, and the Total Commitment shall be
terminated if such Net Securities Proceeds are equal to or greater than the
Total Commitment.
(b) Calculations of Net Proceeds Amount. Concurrently with any
-----------------------------------
prepayment of the Loans and/or reduction of the Total Commitment pursuant to
Section 2.13(a), Borrower shall deliver to Administrative Agent an officers'
certificate signed by Borrower's treasurer or an assistant treasurer
demonstrating the calculation of the amount of the applicable Net Securities
Proceeds that gave rise to such prepayment and/or reduction.
-13-
(c) Application of Prepayments to Base Rate Loans and Eurodollar Loans.
------------------------------------------------------------------
Any prepayment of Loans made under Section 2.13(a) shall be applied first to
Base Rate Loans to the full extent thereof before application to Eurodollar
Loans, in each case in a manner which minimizes the amount of any payments
required to be made by Borrower pursuant to Section 3.4.
(d) Borrower hereby agrees to prepay any outstanding Loans hereunder in
full before it prepays on any optional basis any outstanding loans under the
364-Day Credit Agreement or the Multi-Year Credit Agreement.
SECTION 3
PAYMENT OF COSTS AND REDUCTION
OF THE COMMITMENT
3.1 Indemnification Upon Failure to Pay Eurodollar Loan. If Borrower
---------------------------------------------------
makes any payment of principal with respect to any Eurodollar Loan on a day
other than the last day of the then current Interest Period applicable to such
Loan (including without limitation any payment upon reduction of the
Commitments) or fails to borrow, continue, convert, pay or prepay its Eurodollar
Loan on a date designated to Administrative Agent in a notice pursuant to this
Agreement (if such failure does not result from the application of Sections 4.1
or 4.2), Borrower shall reimburse each Bank within 15 days after receipt of
written demand for any loss incurred by it as a result of the timing of such
payment or non-borrowing not reflected in the Eurodollar Rate, including without
limitation any loss incurred in liquidating or employing deposits from third
parties and loss of profit for the period after such payment or non-borrowing.
A certificate of such Bank setting forth the amounts reasonably necessary so to
reimburse it in respect of any loss shall be conclusive and binding absent
manifest error.
3.2 Increased Costs. (a) If after the date hereof, any applicable law,
---------------
rule or regulation or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof or compliance
by any Bank (or its Lending Office) with any request or directive of any such
authority, central bank or comparable agency, whether or not having the force of
law, shall impose, modify or deem applicable:
(i) any reserve (including, without limitation, any imposed by the
Board of Governors of the Federal Reserve System), special deposit,
compulsory loan or similar requirements against assets, commitments or
deposits or other liabilities with, of or for the account of, or credit
extended by, or any acquisition of funds by or for the account of any Bank
or its Lending Office or the London interbank market or any other condition
affecting its obligations to make the Loans to Borrower hereunder;
(ii) any capital or similar requirements against (or against any class
of or change in or the amount of) assets or liabilities of, or commitments
or extensions of credit by, such Bank;
each Bank which is so affected shall give prompt notice to Borrower describing
such reserves or requirements at least four Business Days prior to the date such
Bank will begin to implement
-14-
such additional charges with respect to Borrower. If the result of any of the
foregoing is to increase the cost or reduce the profit to such Bank (or its
Lending Office) under this Agreement by an amount deemed by such Bank to be
material, then, within 15 days after written demand by such Bank, Borrower will
pay to such Bank such additional amount or amounts as will compensate such Bank
for such increased cost incurred or reduction in profit suffered by such Bank.
Such Bank will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such compensation and will not be
otherwise disadvantageous to such Bank in the sole discretion of such Bank. A
certificate of such Bank setting forth the basis for determining such additional
amount or amounts necessary to compensate the Bank shall be conclusive in the
absence of manifest error.
(b) Without limiting the effect of the foregoing (but without
duplication), upon any Bank's prior written request, Borrower shall pay to such
Bank on the last day of each Interest Period, so long as such Bank may be
required to maintain reserves against "eurocurrency liabilities" under
Regulation D (as at any time amended) of the Board of Governors of the Federal
Reserve System, as additional interest on the unpaid principal amount of each
Eurodollar Loan by such Bank outstanding during such Interest Period, an
additional amount (determined by such Bank and notified to Borrower in writing)
up to but not exceeding such amount as would, together with payments of interest
on such Eurodollar Loan for such Interest Period, result in the receipt by such
Bank of total interest on such Eurodollar Loan, for such Interest Period at a
rate determined by such Bank to be equal to the sum of:
(i) the Eurodollar Rate divided by a sum equal to (a) 1 minus (b) the
rate (expressed as a decimal) of such reserves required by Regulation D,
plus
(ii) the Applicable Amount for Eurodollar Loans.
In determining the additional amount payable for an Interest Period
pursuant to this Section, such Bank shall take into account any transitional
adjustment or phase-in provisions of such reserve requirements applicable during
such Interest Period, which would reduce the reserve requirement otherwise
applicable to eurocurrency liabilities during such Interest Period; provided,
however, each Bank in its sole discretion may determine the allocation of
reserve requirements to its Eurodollar Loans. Each such determination made by
such Bank, and each such notification by such Bank to Borrower under this
Section, shall be conclusive as to the matters set forth therein in the absence
of manifest error.
3.3 Taxes. All payments or reimbursements under this Agreement and any
-----
instrument or agreement required hereunder shall be made without setoff or
counterclaim and free and clear of and without deduction for any and all present
and future Taxes. Borrower agrees to cause all such Taxes to be paid on behalf
of any Bank or Administrative Agent directly to the appropriate Governmental
Authority. If Borrower is legally prohibited from complying with this
subsection, payments due to such Bank or Administrative Agent under this
Agreement and any instrument or agreement required hereunder shall be increased
so that, after provisions for Taxes and all Taxes on such increase, the amounts
received by such Bank or Administrative Agent will be equal to the amounts
required under this Agreement and any instrument or agreement required hereunder
as if no Taxes were due on such payments. Borrower shall indemnify each Bank
and Administrative Agent for the full amount of Taxes payable by such
-15-
Bank or Administrative Agent and any liabilities (including penalties, interest
and expenses) arising from such Taxes within 30 days from any written demand by
such Bank. Borrower shall provide evidence that all applicable Taxes have been
paid to the appropriate taxing authorities by delivering to Administrative Agent
official tax receipts or notarized copies or other evidence thereof satisfactory
to Administrative Agent, within 90 days after the due date for such Tax payment.
Such Bank will designate a different Lending Office if such designation will
avoid the need for, or reduce the amount of, such payment or reimbursement and
will not be otherwise disadvantageous to such Bank in the sole discretion of
such Bank.
3.4 Prepayment. Upon the irrevocable written notice of Borrower received
----------
by Administrative Agent by 11:00 a.m. California time at least one Business Day
prior to the prepayment of a Base Rate Loan and at least five Eurodollar Banking
Days prior to the prepayment of a Eurodollar Loan, Borrower may prepay any
Eurodollar Loan or Base Rate Loan; but such prepayment shall be in an amount of
at least $5,000,000 or multiple integrals of $1,000,000 in excess thereof. The
notice of prepayment shall specify the date of the prepayment, the amount of the
prepayment and the Loan to be prepaid. Each such prepayment shall be made on
the date specified and, in the case of a prepayment of any Eurodollar Loan shall
be accompanied by the payment of accrued interest on the amount prepaid.
Subject to compliance with the foregoing procedures, Base Rate Loans may be
prepaid at any time without cost or penalty of any kind. If Borrower elects to
prepay a Eurodollar Loan, Borrower shall, on demand by each Bank, pay such Bank
the amount (if any) by which (a) the additional interest which would have been
payable on the amount prepaid on such Bank's portion of such Loan had it not
been paid until the last day of the Interest Period of such Loan exceeds (b) the
interest which would have been recoverable by such Bank by placing such prepaid
amount on deposit in the offshore Dollar interbank markets for a period starting
on the date on which it was prepaid and ending on the last day of the Interest
Period for such Loan.
3.5 Pro Rata Reduction of Commitments by Borrower. Borrower may, upon
---------------------------------------------
five Business Days' prior written notice (which notice shall be irrevocable) to
Banks through Administrative Agent, reduce the Total Commitment on a pro rata
basis among the Banks. Such a reduction shall be in an amount of at least
$5,000,000 or multiple integrals of $1,000,000 in excess thereof. Borrower
shall, on the effective date of each such reduction, repay to each Bank through
Administrative Agent that portion of each Loan which exceeds the amount of each
Bank's Commitment as reduced, together with accrued interest on the amount paid
and accrued facility fees subject to such reduction. After the effective date
of each reduction, the Banks' obligations under this Agreement shall be based on
the reduced Commitments.
3.6 Reduction of One Bank's Commitment by Borrower. If the amount of any
----------------------------------------------
payment to be made to or for the account of any Bank is increased under Section
3.3 or any Bank makes a claim under Section 3.2, then:
(a) Borrower may, within 60 days after the notice thereof and by not less
than five Business Days' written notice to Administrative Agent, cancel such
Bank's Commitment, whereupon such Bank shall cease to be obligated to
participate in further Loans hereunder and its Commitment shall be reduced to
the amount of its outstanding Loans until such Loans are repaid by Borrower
either on the Principal Repayment Date for such Loans or pursuant to Section
3.6(b), at which time such Bank's Commitment shall be reduced to zero;
-16-
(b) if Borrower cancels such Bank's Commitment pursuant to clause (a)
above and if Borrower so elects by written notice to Administrative Agent given
at the same time as the notice referred to in clause (a) above, Borrower shall
prepay such Bank's portion of each outstanding Loan together with any accrued
interest thereon plus all costs and expenses (including break and funding costs
in connection with the relending, reborrowing, funding or other employing of
funds) incurred by such Bank as a result of such cancellation or prepayment on a
date other than the Principal Repayment Date for such Loan; and
3.7 Notice of Reductions. Each notice of reduction or prepayment given
--------------------
pursuant to Section 3.4, 3.5 or 3.6 shall be irrevocable, shall specify the date
upon which such reduction or prepayment is to be made and, in the case of a
notice of prepayment, shall obligate Borrower to make such prepayment on such
date. Borrower may not give a notice of reduction of a part of the Commitment
pursuant to Section 3.6 at any time prior to the date so specified in any
previous such notice.
3.8 Designation of Replacement Bank. If the Commitment of any Bank is
-------------------------------
cancelled by Borrower pursuant to Section 3.6 or if any Bank terminates its
Commitment with respect to Eurodollar Loans pursuant to Section 4.2, Borrower,
with the consent of Administrative Agent, may designate an Eligible Assignee
(or, if it deems appropriate, more than one Eligible Assignee) acceptable to
Administrative Agent to act as a Bank hereunder and upon execution of a written
agreement in form satisfactory to Administrative Agent by such Eligible Assignee
in which it agrees to abide by all of the terms, conditions and obligations
applicable to a Bank herein and to have a Commitment as specified in such
agreement, such Eligible Assignee shall be deemed a Bank hereunder to the same
extent as if it were a signatory hereto and, thereafter, such Eligible Assignee
shall for all purposes be considered a "Bank" hereunder.
3.9 Effect of Reduction of Commitment. If, at any time:
---------------------------------
(a) the Commitment of any Bank is reduced to zero in accordance with the
terms of this Agreement;
(b) all indebtedness and other amounts owed to such Bank by Borrower
hereunder or in connection herewith have been satisfied in full; and
(c) such Bank is under no further actual or contingent obligation
hereunder,
then such Bank shall cease to be a party hereto and a Bank for the purposes
hereof; provided, however, that the obligations of Borrower under Sections 3.1,
-------- -------
3.2, 3.3, 11.14, 11.15 and 11.16 shall survive the cancellation of the
Commitment and the termination of this Agreement.
3.10 Accrued Fees. On the date of the cancellation of any portion of the
------------
Total Commitment in accordance with Section 3.5 or of any Bank's Commitment
under Section 3.6, all accrued facility fees for such portion of the Total
Commitment or of such Bank's Commitment shall be paid in full by Borrower.
3.11 Survival. The agreements and obligations of Borrower in this Section
--------
3 shall survive the termination of this Agreement.
-17-
SECTION 4
CHANGE IN CIRCUMSTANCES AFFECTING LOANS
4.1 Inability to Determine Eurodollar Rate. If any Reference Bank
--------------------------------------
determines (which determination shall be made in good faith and shall be
conclusive and binding upon Borrower) that (a) by reason of circumstances then
affecting the Eurodollar interbank market, adequate and reasonable means do not
or will not exist for ascertaining the interest rate applicable to any
Eurodollar Loans, or (b) Dollar deposits in the relevant amounts and for the
relevant Interest Period are not available to the Banks in the Eurodollar
interbank market, then it shall notify the Administrative Agent who shall
forthwith give written notice of such determination to Borrower and each Bank at
least one Business Day prior to the first day of any Interest Period so
affected; whereupon, until Administrative Agent shall notify Borrower that the
circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make Eurodollar Loans shall be suspended and (ii)
Borrower shall repay in full, without premium or penalty, the then outstanding
principal amount of the Eurodollar Loans, together with accrued interest
thereon, on the last day of the then current Interest Period pursuant to the
next sentence. Unless Borrower notifies Administrative Agent to the contrary
within one Business Day after receiving a notice from Administrative Agent
pursuant to this Section, Borrower shall, concurrently with prepaying the
Eurodollar Loans pursuant to this Section, be deemed automatically without any
further notice to Administrative Agent or the Banks to have requested and
received Base Rate Loans in an equal principal amount from the Banks, the
proceeds of which are deemed to have been used to repay the other Loans.
4.2 Illegality. If, after the Effective Date, the introduction of or any
----------
change in any applicable law, rule or regulation or in the interpretation or
administration thereof by any Governmental Authority charged with the
interpretation or administration thereof or compliance by any Bank with any
request or directive (whether or not having the force of law) of any such
authority shall make it unlawful or impossible for such Bank (or its Lending
Office) to make, maintain or fund its Eurodollar Loans, such Bank shall
forthwith give written notice thereof to Administrative Agent and to Borrower.
Before giving any notice pursuant to this Section, such Bank shall designate a
different Lending Office if such designation will avoid the need for giving such
notice and will not be otherwise disadvantageous to such Bank in the sole
judgment of such Bank. Upon receipt of such notice (a) if such Bank has
received a request with respect to Eurodollar Loans and has not yet made such
Loan, a Base Rate Loan shall be deemed to have been designated without any
further notice; (b) all Loans which would otherwise be made by such Bank as
Eurodollar Loans shall be made instead as Base Rate Loans; and (c) Borrower
shall prepay in full, without premium or penalty, the then outstanding principal
amount of such Bank's Eurodollar Loans, together with accrued interest, on
either (i) the last day of the then-current Interest Period if such Bank may
lawfully continue to fund and maintain such Eurodollar Loans, to such day or
(ii) immediately if such Bank may not lawfully continue to fund and maintain
such Eurodollar Loans to such day together with an amount, if any, calculated as
set forth in the last sentence of Section 3.4. Concurrently with prepaying each
such Eurodollar Loan Borrower shall borrow a Base Rate Loan from such Bank in an
amount equal to the principal amount of such Bank's Eurodollar Loans, the
proceeds of which are deemed to have been used to repay such Bank's Eurodollar
Loans. If circumstances subsequently change so that such Bank is not further
affected, and no Eligible Assignee has been appointed pursuant to Section 3.8,
such Bank
-18-
shall so notify Borrower and Administrative Agent and such Bank's obligation to
make and continue Eurodollar Loans shall be reinstated upon written request of
Borrower.
SECTION 5
CONDITIONS PRECEDENT
5.1 Conditions Precedent to Signing Date. The occurrence of the Signing
------------------------------------
Date is subject to the condition that on the Signing Date this Agreement, duly
executed and delivered by the parties hereto, shall have been delivered to
Administrative Agent with counterparts for each Bank and in form and substance
satisfactory to Banks.
5.2 Conditions Precedent to Effective Date. The obligation of Banks to
--------------------------------------
make the initial Loans hereunder is subject to the condition that on the
Effective Date there shall have been delivered to the Administrative Agent with
counterparts for each Bank:
(a) Notes, if any, requested by any Bank pursuant to Section 2.8 prior to
the Effective Date, duly executed and delivered by the Borrower.
(b) The favorable written opinions, dated the Effective Date, of the
General Counsel or Assistant General Counsel of Borrower in the form set out in
Exhibit E.
---------
(c) Certificate of the Secretary or an Assistant Secretary of Borrower
dated the Effective Date as to (i) the Certificate of Incorporation and the By-
laws of Borrower, (ii) the resolution of the Board of Directors of Borrower or
its Executive Committee in connection with this Agreement, and (iii) the
incumbency and signatures of the person authorized to execute and deliver this
Agreement and any other instrument, document or other agreement required
hereunder on the Effective Date.
(d) A certificate, which shall be true and correct, signed by a vice
president of Borrower dated the Effective Date certifying: (i) that since June
30, 1999, there has been no Material Adverse Change; (ii) that the
representations and warranties contained in this Agreement are true and correct
in all material respects; (iii) that no event has occurred and is continuing or
would result from the making of a Loan which constitutes or would constitute an
Event of Default or an Unmatured Event of Default; and (iv) the Debt Ratings as
of the Effective Date.
(e) Certificate of Good Standing in relation to Borrower issued by the
Secretary of the State of Delaware, dated not more than one month prior to the
Effective Date.
(f) A copy of press releases or other evidence of Borrower's Debt Ratings
from both S&P and Xxxxx'x.
(g) The Multi-Year Credit Agreement and the 364-Day Credit Agreement have
become effective in accordance with their terms;
(h) The Administrative Agent shall have received all fees payable to it
and/or the Banks on the Effective Date under the Letter Agreement.
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(i) Unless waived by Administrative Agent, Borrower shall have paid all
Attorney Costs of Administrative Agent to the extent invoiced prior to or on the
Closing Date, including such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be incurred
by it through the closing proceedings (provided that such estimate shall not
thereafter preclude final settling of accounts between Borrower and
Administrative Agent).
5.3 Conditions Precedent to Loans. The obligation of Banks to disburse
-----------------------------
each Loan (including the first Loan) is subject to the following conditions and
by communicating a Loan Request Borrower is deemed to certify that: (a)
Borrower's representations and warranties (excluding Section 6.6) contained in
this Agreement and any other documents delivered pursuant hereto are true and
correct in all material respects on the date of such Loan Request; (b) the
financial statements delivered to Administrative Agent by Borrower pursuant to
Section 7.5 on the date most nearly preceding the Loan Request present fairly
the financial position and results of operations and changes in financial
position of Borrower and its consolidated Subsidiaries as at the end of, and for
the fiscal period to which such statements relate, (subject, in the case of
unaudited financial statements to year end adjustments); and (c) no Event of
Default or Unmatured Event of Default has occurred and is continuing except such
Events of Default or Unmatured Events of Default as have been expressly waived
by or on behalf of the Banks.
SECTION 6
REPRESENTATIONS AND WARRANTIES
6. Borrower represents and warrants that as of the Effective Date:
6.1 Authority of Borrower. Borrower (a) is a corporation duly organized
---------------------
and existing under the laws of the State of Delaware, with its principal place
of business in Los Angeles County, California, (b) has the corporate power to
own its property and carry on its business as now being conducted, (c) is duly
qualified and authorized to do business, and is in good standing in every state,
country or other jurisdiction where the failure to be so qualified, authorized
and in good standing would have a material adverse effect on Borrower, (d) has
full power and authority to borrow the sums provided for in this Agreement, to
execute, deliver and perform this Agreement and any instrument or agreement
required hereunder, and to perform and observe the terms and provisions hereof
and thereof, (e) has taken all corporate action on the part of Borrower, its
directors or stockholders, necessary for the authorization, execution, delivery
and performance of this Agreement, and any instrument or agreement required
hereunder on the date hereof, (f) requires no consent or approval of any trustee
or holder of any indebtedness or obligation of Borrower to enter into, deliver
or perform its obligations under this Agreement and the Notes, and (g) requires
no consent, permission, authorization, order or license of any Governmental
Authority in connection with the execution and delivery and performance of this
Agreement and any instrument or agreement required hereunder, or any transaction
contemplated hereby, except as may have been obtained and certified copies of
which have been delivered to Banks through Administrative Agent.
6.2 Binding Obligations. This Agreement is the legal, valid and binding
-------------------
obligation of Borrower, enforceable against it in accordance with its terms, and
any instrument or agreement
-20-
required hereunder, when executed and delivered, will be similarly valid,
binding and enforceable.
6.3 Incorporation of Restricted Subsidiaries. Each Restricted Subsidiary
----------------------------------------
of Borrower is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and, to the
best of Borrower's knowledge, is duly licensed or qualified as a foreign
corporation in all jurisdictions where the failure to be so qualified,
authorized and in good standing would have a material adverse effect on Borrower
and its Restricted Subsidiaries taken as a whole.
6.4 No Contravention. There is no charter, by-law, or capital stock
----------------
provision of Borrower and no provision of any indenture or material agreement,
written or oral, to which Borrower is a party or under which Borrower is
obligated, nor is there any statute, rule or regulation, or any judgment, decree
or order of any court or agency binding on Borrower which would be contravened
by the execution, delivery and performance of this Agreement, or any instrument
or agreement required hereunder, or by the performance of any provision,
condition, covenant or other term hereof or thereof.
6.5 Notices. Except as previously disclosed in writing to Administrative
-------
Agent, no event has occurred which, to the best of its knowledge, would require
Borrower to notify Administrative Agent and the Banks pursuant to Section 7.3
hereof.
6.6 Financial Statements. The audited consolidated financial statements
--------------------
dated December 31, 1998 and the unaudited consolidated financial statements for
the six months ended June 30, 1999 furnished by Borrower to the Administrative
Agent and Banks, present fairly the financial position and results of operation
and changes in financial position of Borrower and its consolidated Subsidiaries
as at the end of, and for the fiscal periods to which such statements relate,
and such financial statements were prepared in accordance with GAAP. Since June
30, 1999, there has been no Material Adverse Change. The Borrower and its
Subsidiaries did not have any contingent obligations, liabilities for taxes or
other outstanding financial obligations at June 30, 1999 which are material in
the aggregate for Borrower and its Subsidiaries, taken as a whole, except as
disclosed in such unaudited consolidated financial statements.
6.7 ERISA. Based upon ERISA and the regulations and published
-----
interpretations thereunder, the Plans of Borrower and its Subsidiaries and, to
the knowledge of Borrower, the Plans of any other ERISA Affiliates, are in
material and substantial compliance in all material respects with the applicable
provisions of ERISA and Borrower and its Subsidiaries are in compliance with
such Plans in all material respects. No Reportable Event which has or could be
reasonably be expected to result in termination thereof by the Pension Benefit
Guaranty Corporation or for the appointment by the appropriate United States
District Court of a trustee to administer such Plan has occurred and is
continuing with respect to any Plan.
6.8 Regulation U; Investment Company Act. Borrower is not engaged
------------------------------------
principally, or as one of its important activities, in the business of extending
credit for the purposes of purchasing or carrying any "margin stock" within the
meaning of Regulation U of the Board of Governors of the Federal Reserve System;
and neither Borrower nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940.
-21-
6.9 Taxes. Borrower has filed all federal and state tax returns which to
-----
the knowledge of the financial officers of Borrower are required to have been
filed, and has paid prior to delinquency all taxes that have become due pursuant
to said returns or pursuant to any assessment, except as are being contested in
good faith by appropriate proceedings and as to which adequate reserves have
been provided on the books of Borrower in accordance with GAAP.
6.10 Insurance. Borrower and its Restricted Subsidiaries maintain
---------
insurance with responsible insurance companies, in such amounts and against such
risks as is customarily carried by owners of similar businesses and property,
including protection against loss of use and occupancy, to the extent such
insurance is reasonably available at commercially reasonable rates, and it will
furnish Administrative Agent, upon written request, with full information as to
the insurance carrier; provided, however, that Borrower and its Restricted
-------- -------
Subsidiaries may self insure to the extent they deem prudent.
6.11 Liens. The properties and assets of Borrower and its Restricted
-----
Subsidiaries, real, personal and mixed, are not subject to any Liens, except for
Liens permitted by this Agreement.
6.12 Litigation. Except as disclosed in writing to the Banks prior to the
----------
Signing Date, no litigation, investigation or proceeding of or before an
arbitrator or Governmental Authority is pending or, to the knowledge of Borrower
after due and diligent investigation, threatened by or against Borrower or any
of its Subsidiaries or against any of their properties or revenues which could
reasonably be expected to cause a Material Adverse Change.
6.13 Environmental Compliance. Borrower and its Subsidiaries each conduct
------------------------
in the ordinary course of business a review of the effect of existing
Environmental Laws and claims alleging potential liability or responsibility for
violation of any Environmental Law on their respective businesses, operations
and properties, and as a result thereof Borrower has reasonably concluded that
such Environmental Laws and claims could not, individually or in the aggregate,
reasonably be expected to cause a Material Adverse Change.
6.14 Year 2000. Borrower has (a) completed a review and assessment of all
---------
areas within its and each of its Subsidiaries' business and operations
(including those affected by customers and vendors) that could be adversely
affected by the "Year 2000 Problem" (that is, the risk that computer
applications and devices containing imbedded computer chips used by Borrower or
any of its Subsidiaries may be unable to recognize and perform properly date-
sensitive functions involving certain dates prior to and any date after December
31, 1999), (b) developed a plan and timeline for addressing the Year 2000
Problem on a timely basis, and (c) to date, implemented that plan in accordance
with that timetable. Based on the foregoing, Borrower believes that all
computer applications and devices containing imbedded computer chips that are
material to its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform properly date-
sensitive functions for all dates before and after January 1, 2000 (that is, be
"Year 2000 compliant"), except to the extent that a failure to do so could not
reasonably be expected to cause a Material Adverse Change.
6.15 Disclosure. No written statement (or oral statement made by senior
----------
executives of Borrower at the bank meeting held on November 3, 1999, it being
understood that any
-22-
projections contained in such statements are not to be viewed as facts but were
based on good faith estimates and assumptions believed by Borrower to be
reasonable), written information, report, representation, or warranty made by
Borrower in this Agreement or furnished to Administrative Agent or any Bank in
connection with this Agreement contains any untrue statement of a material fact
or omits to state any material fact necessary to make the statements herein or
therein not misleading.
SECTION 7
AFFIRMATIVE COVENANTS OF BORROWER
Borrower covenants and agrees that so long as the credit hereby granted
shall remain available in whole or in part or until the full and final payment
of all indebtedness incurred hereunder, unless Majority Banks waive compliance
in writing:
7.1 Use of Proceeds of Loans. It will use the proceeds of the Loans made
------------------------
by Banks to Borrower hereunder for the repayment of Commercial Paper or other
indebtedness of Borrower existing as of the Effective Date and for its general
working capital requirements, including acquisition and improvement of plant,
property and equipment and acquisitions, and other lawful corporate purposes.
7.2 Management of Business. It will manage its business and conduct its
----------------------
affairs such that the representations and warranties contained in Sections 6.1
through 6.3, 6.7 through 6.9 and 6.13 and 6.14 remain true and correct at all
times during the Availability Period.
7.3 Notice of Certain Events. It will, and it will cause each of its
------------------------
Restricted Subsidiaries to, give prompt written notice to Administrative Agent
(who shall promptly notify the Banks) of:
(a) all Events of Default or Unmatured Events of Default under any of the
terms or provisions of this Agreement;
(b) any event of default under any other agreement, contract, indenture,
document or instrument entered, or which may be entered, into by it that could,
if settled unfavorably, result in a Material Adverse Change;
(c) all material changes in senior management publicly announced;
(d) all litigation, arbitration or administrative proceedings involving
Borrower or any of its Subsidiaries which could in the reasonable opinion of
Borrower be expected to result in a Material Adverse Change;
(e) any other matter which has resulted in, or might in the reasonable
opinion of Borrower result in, a Material Adverse Change;
(f) concurrently with the public announcement thereof, any proposed Merger
or Disposition affecting any Restricted Subsidiary;
(g) any change in any Debt Rating by S&P or Xxxxx'x; and
-23-
(h) promptly upon any discovery or determination that any computer
application that is material to Borrower's or any of its Subsidiaries' business
and operations will not be Year 2000 compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to cause a Material
Adverse Change.
7.4 Records. It will, and it will cause each of its Restricted
-------
Subsidiaries to, keep and maintain full and accurate accounts and records of its
operations according to GAAP and will permit Administrative Agent, and its
designated officers, employees, agents, and representatives, to have access
thereto and to make examination thereof at all reasonable times, to make audits,
and to inspect and otherwise check its properties, real, personal and mixed;
provided, however, that such examination and access shall be in compliance with
-------- -------
security and confidentiality requirements of all Governmental Authorities and,
subject to Section 11.16, Borrower's corporate policies.
7.5 Information Furnished. It will furnish to Banks and Administrative
---------------------
Agent:
(a) Within 60 days after the close of each quarter, except for the last
quarter of each fiscal year, its consolidated balance sheet as of the close of
such quarter and its consolidated profit and loss statement and cash flow
statement for that quarter and for that portion of the fiscal year ending with
such quarter, all prepared in accordance with GAAP, and all certified by its
Treasurer or an Assistant Treasurer as presenting fairly the financial position
and results of operations and changes in financial position of Borrower and its
consolidated Subsidiaries as at the end of, and for the fiscal period to which
such statements relate, subject to normal year-end adjustments.
(b) Within 120 days after the close of each fiscal year, a complete copy of
its annual financial statements, which statements shall include at least its
consolidated balance sheet as of the close of such fiscal year and its
consolidated profit and loss statement and cash flow statement for such fiscal
year, prepared by Deloitte & Touche (or such other independent certified public
accountants of recognized international standing selected by Borrower) in
accordance with GAAP applied on a basis consistent with that of the previous
year, and which statements shall include the opinion of such accountants, such
opinion not to be qualified or limited because of any restricted or limited
nature of examination made by such accountants or because of a "going concern"
qualification.
(c) Within 60 days after the close of each quarter except for the last
quarter of each fiscal year, (and within 120 days after the close of each fiscal
year) its certificate executed by Borrower's Treasurer or an Assistant Treasurer
that (i) the representations and warranties set forth in Section 6 (with the
exception of Section 6.6) are true and correct in all material respects; and
(ii) no Event of Default or Unmatured Event of Default has occurred and is
continuing except such Events of Default or Unmatured Events of Default as have
been expressly waived by or on behalf of the Banks.
(d) concurrently with the delivery of the financial statements referred to
in clauses (a) and (b), a duly completed Compliance Certificate signed by
--- ---
Borrower's Treasurer or an Assistant Treasurer;
-24-
(e) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to public
securityholders of Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which Borrower may file or be
required to file with the Securities and Exchange Commission under Sections 13
or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise
required to be delivered to Administrative Agent pursuant hereto;
(f) Such other information concerning its affairs as Administrative Agent
or Majority Banks may reasonably request.
7.6 Execution of Other Documents. It will promptly, upon demand by
----------------------------
Administrative Agent, execute all such additional agreements, documents and
instruments in connection with this Agreement as Administrative Agent or
Majority Banks may deem necessary.
7.7 ERISA. It will, and it will cause each of its Subsidiaries to:
-----
(a) At all times, make prompt payment of contributions required to meet the
minimum funding standard set forth in ERISA with respect to its Plans, except to
the extent that waivers are granted by the appropriate Governmental Authority;
(b) Notify Administrative Agent immediately of (i) any Reportable Event
which could reasonably be expected to result in aggregate liability to Borrower
and its Subsidiaries in excess of $75,000,000 and (ii) any other fact arising in
connection with any of its Plans or a Plan of any ERISA Affiliate which has
resulted, or could reasonably be expected to result, in termination thereof by
the Pension Benefit Guaranty Corporation or for the appointment by the
appropriate United States District Court of a trustee to administer such Plan,
in each case together with a statement, if requested by Administrative Agent, as
to the reasons therefor and the action, if any, which Borrower or such ERISA
Affiliate proposes to take with respect thereto; and
(c) Furnish to Administrative Agent, upon its written request, such
information concerning any of its Plans as may be reasonably requested.
7.8 Administrative Agent's Fees. It will compensate Administrative Agent
---------------------------
as set forth in the Letter Agreement.
7.9 Compliance with Law. It will, and will cause each of its Subsidiaries
-------------------
to, comply with the requirements of all applicable laws, rules, regulations, and
orders of any Governmental Authority, a breach of which would result in a
Material Adverse Change, except where contested in good faith by appropriate
proceedings diligently pursued.
7.10 Compliance with Agreements. Promptly and fully comply with all
--------------------------
Contractual Obligations under all material agreements, indentures, leases and/or
instruments to which any one or more of them is a party, except for any such
------
Contractual Obligations (a) the performance of which would cause an Event of
Default, (b) then being contested by any of them in good faith by appropriate
proceedings, or (c) if the failure to comply therewith could not reasonably be
expected to cause a Material Adverse Change.
-25-
7.11 Maintenance of Insurance. Maintain liability and casualty insurance
------------------------
as provided in Section 6.10.
SECTION 8
NEGATIVE COVENANTS OF BORROWER
8. Borrower covenants and agrees that so long as the credit hereby
granted shall remain available in whole or in part or until the full and final
payment of all indebtedness incurred hereunder, unless Majority Banks waive
compliance in writing:
8.1 Liens.
-----
(a) Borrower will not, nor will it permit any Restricted Subsidiary to,
issue, incur, guaranty or assume any indebtedness for money borrowed secured by
a Lien upon any property or assets of Borrower or any Restricted Subsidiary or
upon any shares of stock or indebtedness of any Restricted Subsidiary (whether
such property, assets, shares of stock or indebtedness are now owned or
hereafter acquired) without in any such case effectively providing concurrently
with the issuance, incurrence, guarantee or assumption of any such indebtedness
that the Commitments and Loans and any other obligations of Borrower to the
Banks (together with, if Borrower shall so determine, any other indebtedness of
Borrower or such Restricted Subsidiary ranking equally with the Commitments and
Loans and such other obligations and then existing or thereafter created) shall
be secured equally and ratably with or prior to such indebtedness by a Lien upon
such property, assets, shares of stock or indebtedness, unless the aggregate
amount of such indebtedness for money borrowed secured by such Liens, together
with all other indebtedness for money borrowed of Borrower and its Subsidiaries
which (if originally issued, incurred, guaranteed or assumed at such time) would
otherwise be subject to the foregoing restrictions (but not including
indebtedness for money borrowed permitted to be secured under sub-clauses (1)
through (7) of Section 8.1(b)), does not at the time exceed 5% of Consolidated
Adjusted Net Worth.
(b) The above restrictions shall not apply to indebtedness of Borrower or
any of its Restricted Subsidiaries secured by:
(1) Liens existing as of the date hereof and listed in Exhibit D;
---------
(2) Liens on property, assets, shares of stock or indebtedness of any
corporation existing at the time such corporation becomes a Restricted
Subsidiary;
(3) Liens on property existing at the time of acquisition of such
property by Borrower or a Restricted Subsidiary, or Liens to secure the
payment of all or any part of the purchase price of property upon the
acquisition of such property by Borrower or a Restricted Subsidiary or to
secure any indebtedness incurred or guaranteed prior to, at the time of, or
within 180 days after, the later of the date of acquisition of such
property and the date such property is placed in service, for the purpose
of financing all or any part of the purchase price thereof, or Liens to
secure any indebtedness incurred or guaranteed for the purpose of financing
the cost to Borrower or a Restricted Subsidiary of improvements to such
acquired property; provided, however, that for purposes of this clause 3,
-------- -------
(i) a satellite will be treated as a newly-acquired asset as of the date it
is placed in service and
-26-
(ii) any satellite transponder acquired through the exercise of an early
buy-out option shall be treated as a newly-acquired asset as of the date
such option is exercised;
(4) Liens securing indebtedness of a Restricted Subsidiary owing to
Borrower or to another Restricted Subsidiary;
(5) Liens on property of a corporation existing at the time such
corporation is merged or consolidated with Borrower or a Restricted
Subsidiary (in accordance with Section 8.2) or at the time of a sale, lease
or other disposition of the properties of a corporation as an entirety or
substantially as an entirety to Borrower or a Restricted Subsidiary;
(6) Liens on property of Borrower or a Restricted Subsidiary in favor
of the United States of America or any state thereof, or any department,
agency or instrumentality or political subdivision of the United States of
America or any state thereof, or in favor of any other country, or any
political subdivision thereof, to secure partial, progress, advance or
other payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of construction of the property subject to such
Liens; or
(7) any extension, renewal or replacement (or successive extensions,
renewals or replacements) in whole or in part of any Liens referred to in
the foregoing sub-clauses (1) to (6), inclusively; provided, however, that
-------- -------
the principal amount of indebtedness secured thereby shall not exceed the
principal amount of indebtedness so secured at the time of the incurrence
or guarantee thereof and that such extension, renewal or replacement shall
be limited to all or a part of the property which secured the Lien so
extended, renewed or replaced (plus improvements on such property).
8.2 Mergers, Liquidations and Sales of Assets. It will not, nor will it
-----------------------------------------
permit any of its Restricted Subsidiaries to liquidate or dissolve or enter into
any consolidation, merger, partnership, joint venture, syndicate, pool or other
combination (collectively, the "Mergers") or convey, sell or lease all or
substantially all of its assets or business or the stock or all or substantially
all of the assets or business of a Restricted Subsidiary (collectively,
"Dispositions"), except for:
(a) mergers between Subsidiaries, or between Subsidiary and Borrower where
Borrower is the surviving corporation;
(b) mergers where Borrower is the surviving corporation;
(c) transfers of assets from one Restricted Subsidiary to another
Restricted Subsidiary or from any Restricted Subsidiary to Borrower;
(d) sales, leases, transfers or assignments of operating rights, licenses
or franchises in transactions which could not reasonably be expected to result
in a Material Adverse Change; and
(e) the Disposition of any Restricted Subsidiary; provided that both Debt
--------
Ratings remain Investment Grade on the effective date of any such Disposition;
-27-
provided, however, no Disposition or Merger otherwise permitted by clauses (a)
-------- -------
through (e) above shall take place if before, or after giving effect to any such
Disposition or Merger, an Event of Default or Unmatured Event of Default exists
or would exist.
8.3 Defaults. It will not, nor will it permit any of its Restricted
--------
Subsidiaries to, commit or do any act or thing which would constitute an event
of default under any of the material terms or provisions of any other material
agreement, contract, indenture, document or instrument executed, or to be
executed by any of them, except those that may be contested in good faith and
would not, if settled unfavorably, result in a Material Adverse Change.
8.4 Compliance with Regulations. Borrower will not engage principally, or
---------------------------
as one of its important activities, in the business of extending credit for the
purposes of purchasing or carrying any "margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System; and it
will not use the proceeds of any Loan for the purpose, directly or indirectly,
whether immediate, incidental or ultimate, (a) to purchase or carry, within the
meaning of such Regulation U, any such margin stock or to extend credit to
others for the purpose of purchasing or carrying any such margin stock, unless
done in strict compliance with such Regulation U and other applicable law and
Borrower shall have executed and delivered to each Bank prior to such use a Form
U-1 statement evidencing compliance with such Regulation U and such other
documents relating thereto as Administrative Agent or any Bank shall request, or
(b) in a manner which would violate, or result in a violation of, Regulation T,
U, or X of the Board of Governors of the Federal Reserve System.
8.5 Financial Covenants.
-------------------
(a) Shareholders' Equity. Borrower will not permit Shareholders' Equity as
at the end of any fiscal quarter to be less than the sum of (i) $7,125,000,000,
(ii) an amount equal to 50% of Borrower's consolidated net income (as determined
in accordance with GAAP) earned in each fiscal quarter ending after December 31,
1998 (with no deduction for a net loss in any such fiscal quarter) and (iii) an
amount equal to 50% of the aggregate increase in Shareholders' Equity after
December 31, 1998 by reason of the issuance of capital stock of Borrower
(including upon any conversion of debt securities of Borrower into such capital
stock).
(b) Leverage Ratio. Borrower will not permit the Leverage Ratio as at the
end of any fiscal quarter set forth below to be greater than the ratio set forth
below opposite such fiscal quarter:
-28-
Maximum
Fiscal Quarters Ending Leverage Ratio
-------------------------------------------------------------
December 31, 1999 4.00
March 31, 2000 4.50
June 30, 2000 4.00
September 30, 2000 4.00
December 31, 2000 and thereafter 3.75
(c) For the purposes of the financial covenants contained in subsections
(a) and (b) herein, the financial statements of Borrower's subsidiary, DirecTV
Japan, Ltd. will be treated as consolidated with the financial statements of
Borrower (whether or not required by GAAP) from the Effective Date through
December 31, 2000, and thereafter (i) if such consolidation is required by GAAP
or (ii) if Borrower or one or more of its Subsidiaries own securities of DirecTV
Japan, Ltd. convertible into equity interests in DirecTV Japan, Ltd., which when
combined with other equity interests owned by Borrower or one or more of its
Subsidiaries, would result in Borrower and its Subsidiaries having more than a
50% interest in the profits or capital of DirecTV Japan, Ltd.
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default. If one or more of the following described Events
-----------------
of Default shall occur:
(a) Borrower shall default in the due and punctual payment of (i) the
principal of or the interest on any Loan within two Business Days of its due
date, (ii) any fee due hereunder within 10 Business Days of its due date; or,
(iii) any other amount due from it hereunder within 30 Business Days of its due
date; or
(b) Borrower or any of its Restricted Subsidiaries shall fail to perform or
observe any of the terms, provisions, covenants, conditions, agreements or
obligations contained herein (other than Section 7.3, and Sections 8.1 through
8.5,) and such failure shall continue for more than 20 days after written notice
from Administrative Agent to Borrower of the existence and character of such
failure to perform or observe; or
(c) Borrower or any of its Restricted Subsidiaries shall fail to perform or
observe any of the terms, provisions, covenants, conditions agreements or
obligations contained in Section 7.3 and Sections 8.1 through 8.5; or
(d) (i) Borrower, or any of its Restricted Subsidiaries shall become
insolvent, or be unable, or admit in writing its inability, to pay its debts as
they become due; or (ii) Borrower or any Restricted Subsidiary shall make an
assignment for the benefit of creditors or to an agent authorized to liquidate
any substantial amount of its properties or assets; or (iii) Borrower or any
Restricted Subsidiary shall file or have filed against it a petition in
bankruptcy or seeking
-29-
reorganization or to effect a plan or other arrangement with creditors or
winding up or dissolution and such filing against it shall not be dismissed
within 60 days after the date of such filing; or (iv) Borrower or any Restricted
Subsidiary shall apply for or consent to the appointment of or consent that an
order be made appointing any receiver or trustee for any of its or their
properties, assets or business, or if a receiver or a trustee shall be appointed
for all or a substantial part of its or their properties, assets or business; or
(v) an order for relief shall be entered against Borrower or any Restricted
Subsidiary under the United States federal bankruptcy laws as now or hereafter
in effect; or (vi) Borrower or any Restricted Subsidiary shall take any action
indicating its consent to, approval of or acquiescence in, any of the foregoing;
or
(e) Any representation or warranty made by Borrower herein or in any
certificate or financial or other statement heretofore or hereafter furnished by
Borrower or any of its officers to Administrative Agent or the Banks proves to
be in any material respect false or misleading as of the date when made, deemed
made or reaffirmed; or
(f) Any final judgment, decrees, writs of execution, attachments or
garnishments or any Liens, or any other legal processes shall be issued or
levied against any of the assets or property of Borrower or any of its
Restricted Subsidiaries (and shall not have been vacated, discharged or stayed)
in amounts which in the aggregate would result in a Material Adverse Change
(without limiting the generality of the foregoing, a judgment in excess of
$75,000,000 in the aggregate shall, for purposes only of this Section 9.1(f), be
deemed to result in a Material Adverse Change); provided, however, that such
-------- -------
aggregate amount shall include only amounts in excess of (i) insurance coverage
therefor and (ii) reserves on the books of Borrower or any of its Restricted
Subsidiaries therefore; provided, further, that such aggregate amount shall not
-------- -------
include any amounts with respect to matters subject to appeal conducted in good
faith and diligently pursued or other further legal process by Borrower or any
of its Restricted Subsidiaries or any amounts with respect to any such legal
process which Borrower or any of its Restricted Subsidiaries has detached from
such property by posting of a bond or equivalent process; or
(g) All, or substantially all, of the assets and property of Borrower or
any of its Restricted Subsidiaries shall be condemned, seized or otherwise
appropriated; or
(h) Any fact or circumstance (including without limitation a Reportable
Event), which results in, or which Majority Banks determine in good faith could
reasonably be expected to result in, the termination of any Plan of Borrower,
any of its Subsidiaries or any ERISA Affiliate by the Pension Benefit Guaranty
Corporation or the appointment by an appropriate United States District Court of
a trustee to administer any such Plan, shall occur and shall continue for 30
days after written notice of such determination shall have been given to
Borrower or any of its Subsidiaries by Administrative Agent, or a trustee shall
be appointed by the appropriate United States District Court to administer any
Plan of Borrower or any of its Subsidiaries, or the Pension Benefit Guaranty
Corporation shall institute proceedings to terminate any Plan of Borrower or any
of its Subsidiaries or to appoint a trustee to administer any such Plan and,
upon the occurrence of any of the foregoing, the aggregate amount of the
unfunded vested liability for the benefits guaranteed by the Pension Benefit
Guaranty Corporation under all such Plans and the present value of any
Withdrawal Liability which remains unpaid is reasonably estimated to be in
excess of $75,000,000 and such liability is not covered by insurance; or
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(i) Borrower or any of its Restricted Subsidiaries (i) fails to make any
payment (or otherwise satisfy) in respect of any indebtedness for money borrowed
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 document relating thereto on the date of
such failure; or (ii) an event of default shall occur which permits the
acceleration of indebtedness for money borrowed under any other agreement,
contract, indenture, document or instrument executed, or which may be executed,
by Borrower or any of its Restricted Subsidiaries, which failure or event of
default has not been waived or cured; provided, however, that no Event of
-------- -------
Default shall exist hereunder if the aggregate amount of the indebtedness which
is not paid or may be accelerated with respect to the defaulted obligations
shall not exceed in the aggregate $75,000,000; or
(j) Any disposition of any Restricted Subsidiary shall have occurred, and:
(i) prior to such disposition, either S&P or Xxxxx'x shall have
publicly announced that Borrower's Debt Rating will be below Investment
Grade after giving effect to such disposition; or
(ii) as soon as reasonably practicable after its public announcement
of such disposition, Borrower shall not have requested S&P and Xxxxx'x to
publicly announce, prior to or no later than concurrently with the
consummation of such disposition, that Borrower's Debt Rating will remain
at least Investment Grade after giving effect to such disposition; or
(iii) notwithstanding clause (ii), either S&P or Xxxxx'x shall not
have publicly announced within 10 days after the consummation of such
disposition that Borrower's Debt Ratings will remain at least Investment
Grade after giving effect to such disposition; or
(k) Any sale, spin-off, disposition or other transaction whereby General
Motors Corporation will no longer beneficially own directly or indirectly at
least 51 percent of the issued and outstanding capital stock of Borrower having
voting power under ordinary circumstances to elect directors of Borrower (a
"transaction") shall have occurred and:
(i) prior to such transaction, either S&P or Xxxxx'x shall have
publicly announced that its Debt Rating will be below Investment Grade
after giving effect to such transaction; or
(ii) as soon as reasonably practicable after its public announcement
of such transaction, Borrower shall not have requested S&P and Xxxxx'x to
publicly announce, prior to or no later than concurrently with the
consummation of such transaction, that Borrower's Debt Rating will remain
at least Investment Grade after giving effect to such transaction; or
(iii) notwithstanding clause (ii), either S&P or Xxxxx'x shall not
have publicly announced within 10 days after the consummation of such
transaction that its Debt Ratings will remain at least Investment Grade
after giving effect to such transaction; or
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(l) This Agreement, at any time after its execution and delivery and for
any reason other than the agreement of all Banks or satisfaction in full of all
the duties and obligations hereunder, ceases to be in full force and effect or
is declared by a court of competent jurisdiction to be null and void, invalid or
unenforceable in any respect; or Borrower denies that it has any or further
liability or obligation under this Agreement, or purports to revoke, terminate
or rescind this Agreement.
Then (a) automatically upon the occurrence of an Event of Default under Section
9.1(d), the Commitments shall immediately terminate, and all Loans and other
liabilities and obligations outstanding under this Agreement shall, without
presentment, demand, protest, or notice of any kind, all of which are hereby
expressly waived, be forthwith due and payable, if not herein otherwise then due
and payable, together with all costs and expenses (including break and funding
costs and other costs in connection with the relending, reborrowing, funding or
other employing of funds) incurred by the Banks as a result thereof, anything
herein or in any agreement, contract, indenture, document or instrument
contained to the contrary notwithstanding; and (b) at any time after the
occurrence of an Event of Default other than under Section 9.1(d), and in each
and every such case, unless such Event of Default shall have been remedied by
Borrower to the satisfaction of Majority Banks or waived in writing by Majority
Banks (except in the case of an Event of Default under Section 9.1(a), the
waiver of which shall require the consent of all the Banks), Administrative
Agent may, with the consent of the Majority Banks, or shall, upon the direction
of Majority Banks, immediately terminate the Commitments, whereupon the same
shall be cancelled and reduced to zero and any Loan Request given in respect of
a Borrowing Date occurring on or after the date of such notice of cancellation
shall cease to have effect and all Loans and all accrued interest thereon and
all other liabilities and obligations outstanding under this Agreement shall,
thereupon, without presentment, demand, protest, or notice of any kind, all of
which are hereby expressly waived, be forthwith due and payable, if not
otherwise then due and payable, together with all reasonable costs and expenses
(including break and funding costs and other costs in connection with the
relending, reborrowing, funding or other employing of funds) incurred by the
Banks as a result thereof, anything herein or in any other agreement, contract,
indenture, document or instrument contained to the contrary notwithstanding.
Thereafter any Bank or the Banks may immediately, and without expiration of any
period of grace, enforce payment of all liabilities and obligations of Borrower
under this Agreement.
9.2 Recovery of Amounts Due. If any amount payable hereunder is not paid
-----------------------
as and when due, Borrower hereby authorizes Administrative Agent, each Bank and
their respective affiliates to proceed, to the fullest extent permitted by
applicable law, without prior notice, by right of set-off, banker's lien or
counterclaim, against any moneys or other assets of Borrower in any currency
that may at any time be in the possession of Administrative Agent or any of its
affiliates or such Bank or any of its affiliates, at any branch or office
thereof, to the full extent of all amounts payable to Administrative Agent and
the Banks hereunder. Any Bank that so proceeds or that has an affiliate that so
proceeds shall forthwith give notice to Administrative Agent of any action taken
by such Bank or affiliate pursuant to this Section 9.2.
9.3 Rights Cumulative. The rights of Administrative Agent and the Banks
-----------------
provided for herein are cumulative and are not exclusive of any other rights,
powers, privileges or remedies provided by law or in equity.
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SECTION 10
THE BANKS
10.1 Administration of Loan. The general administration of the Loans shall
----------------------
be by Administrative Agent and shall be governed by the provisions set forth in
Exhibit B attached hereto and incorporated herein by reference.
---------
10.2 Representations By Banks. Each Bank hereby represents that it will
------------------------
make each Loan hereunder in the ordinary course of its business and not with a
view to engage in any distribution of any evidence of indebtedness to the
public.
SECTION 11
MISCELLANEOUS PROVISIONS
11.1 Amendments and Waivers. No amendment or waiver of any provision of
----------------------
this Agreement, and no consent with respect to any departure by Borrower
therefrom, shall be effective unless the same shall be in writing and signed by
Majority Banks (or by Administrative Agent at the written request of Majority
Banks) and Borrower and acknowledged by Administrative 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 Banks and
Borrower and acknowledged by Administrative Agent, do any of the following: (a)
increase or extend the Commitment of any Bank (or reinstate any Commitment
terminated pursuant to Section 9.1); (b) postpone or delay any date fixed by
this Agreement for any payment of principal, interest, fees or other amounts due
to Banks (or any of them) hereunder or revise Section 2.13(d); (c) reduce the
principal of, or the rate of interest specified herein on any Loan, or any fees
or other amounts payable hereunder; (d) change the percentage of Commitments or
of the aggregate unpaid principal amount of the Loans which is required for
Banks or any of them to take any action hereunder; or (e) amend this Section or
any provision herein providing for consent or other action by all Banks;
provided, further, that no amendment, waiver or consent shall, unless in writing
-------- -------
and signed by Administrative Agent in addition to Majority Banks or all Banks,
as the case may be, affect the rights or duties of Administrative Agent under
this Agreement or rights or privileges thereunder.
11.2 Notices. All notices, payments, requests, reports, information,
-------
demands and other communications which any party hereto may desire, or may be
required, to give or make to any other party hereto, shall (unless otherwise
permitted as a telephonic notice or request hereunder) be given by mailing the
same, postage prepaid, or by telex, or rapifax transmission, or by hand delivery
or courier, to each party at its address set forth in Exhibit C attached hereto
---------
and incorporated herein by reference, or to such other address as may, from time
to time, be specified in writing by Borrower or any Bank. Such communications
shall be deemed to have been duly given and received in the case of a telex,
when the telex is sent and the appropriate answer-back is received, in the case
of mail when sent by pre-paid certified or registered mail correctly addressed
to the addressee, in the case of rapifax transmission, when transmission has
been sent, and in the case of hand delivery or courier, when received.
Administrative Agent may rely and act upon any Loan Request made by telex or
other telexed, telephonic or facsimile instructions to Administrative Agent by
any Person purporting to be an authorized Person of Borrower, and
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Borrower shall be unconditionally and absolutely estopped from denying the
authenticity and validity of any transaction or act made by Administrative Agent
or any Bank in reliance thereon. Each party hereto shall promptly confirm by
telex or rapifax any telephone communication made by it to another pursuant to
this Agreement but the absence of such confirmation shall not affect the
validity of such communication, which shall be effective upon receipt. If there
is any conflict between any telephonic communication and a written confirmation,
the written communication shall govern; provided, however, that the recipient of
-------- -------
such communication shall be held harmless by all parties hereto with respect to
any action taken in reliance on the telephonic communication prior to the time
such recipient receives and has had reasonable time to review the subsequent
written confirmation and initiate such corrective action as the recipient deems
reasonable under the circumstances.
11.3 Waiver. Neither the failure of, nor any delay on the part of, any
------
party hereto in exercising any right, power or privilege hereunder, or under any
agreement, contract, indenture, document or instrument mentioned herein, shall
operate as a waiver thereof, nor shall any single or partial exercise of any
right, power or privilege hereunder, or under any agreement, contract,
indenture, document or instrument mentioned herein, preclude other or further
exercise thereof or the exercise of any other right, power or privilege; nor
shall any waiver of any right, power, privilege or default hereunder, or under
any agreement, contract, indenture, document or instrument mentioned herein,
constitute a waiver of any other right, power, privilege or default or
constitute a waiver of any other default of the same or of any other term or
provision. All rights and remedies herein provided are cumulative and not
exclusive of any rights or remedies otherwise provided by law.
11.4 California Law. The interpretation, enforcement and effect of this
--------------
Agreement, the Loans and any agreements, contracts, indentures, documents or
instruments delivered in accordance herewith, shall be governed and controlled
in all respects by and construed according to the substantive laws of the State
of California, to the jurisdiction of whose courts the parties hereto hereby
agree to submit.
11.5 Headings. The headings set forth herein are solely for the purpose of
--------
identification and shall not be construed as a part of the sections or
subsections which they head.
11.6 Accounting Terms. All accounting terms not otherwise defined herein
----------------
have the meaning assigned to them in accordance with GAAP, provided, however,
any act or condition in accordance herewith and permitted hereunder when taken,
created or occurring, shall not become a violation of any section of this
Agreement as a result of a subsequent change in GAAP.
11.7 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the different parties hereto on separate counterparts, and
all of said counterparts taken together shall constitute one and the same
instrument.
11.8 Written Disclosure. Wherever written disclosure by Borrower to Banks
------------------
is required or permitted by this Agreement, written disclosure to
Administrative Agent by Borrower shall constitute such disclosure.
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11.9 Singular; Plural. Whenever used herein, the singular number shall
----------------
include the plural, the plural the singular, and the use of any gender shall be
applicable to all genders.
11.10 Illegality. 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.
11.11 Assignments. This Agreement shall bind and inure to the benefit of
-----------
the parties hereto and their respective successors and assigns. No party hereto
may assign or transfer all or any part of its rights and obligations hereunder,
except that:
(a) Any Bank may, with the prior written consent of Borrower at all times
other than during the existence of an Event of Default, and Administrative
Agent, which consents shall not be unreasonably withheld, at any time assign and
delegate to one or more Eligible Assignees (provided that no written consent of
Borrower or the Administrative Agent shall be required in connection with any
assignment and delegation by Bank to an Approved Bank Affiliate of such Bank or
another Bank) (each an "Assignee") by execution and delivery to, and acceptance
by, the Administrative Agent of a Notice of Assignment and Acceptance, all, or
any ratable part of all, of the Loans, the Commitments and the other rights and
obligations of such Bank hereunder; provided, however, that any assignment to an
-------- -------
Eligible Assignee which is not a Bank or an Approved Bank Affiliate shall be in
an amount not less than the lesser of $10,000,000 or all, but not less than all,
of the Loans, the Commitment and the other rights and obligations of such Bank
hereunder. Upon execution of a Notice of Assignment and Acceptance by such
Eligible Assignee in which it agrees to abide by all of the terms, conditions
and obligations applicable to a Bank herein and to have a Commitment as
specified in such agreement, such Eligible Assignee shall be deemed a Bank
hereunder to the same extent as if it were a signatory hereto and, thereafter,
such Eligible Assignee shall for all purposes be considered a "Bank" hereunder.
Administrative Agent shall be entitled to a $2,500 processing fee, payable by
the assignor, with respect to any such assignment by a Bank.
(b) Subject to Section 11.16, Borrower authorizes each Bank and the
Arrangers to disclose to any prospective assignee and assignee any and all
information in such Bank's or the Arrangers' possession concerning Borrower,
this Agreement and any collateral.
11.12 Obligations Several. The obligations of each Bank under this
-------------------
Agreement are several. Neither Administrative Agent nor any Bank shall be
liable for the failure of any other Bank to perform its obligations under this
Agreement.
11.13 Participations. Any Bank may at any time sell, or grant
--------------
participations in all or part of its Commitment or any Loan or Loans made to
Borrower under this Agreement to any other Person, other than an individual, (a
"Participant"); provided, however, no Bank may be relieved of its obligations
under this Agreement except with the consent of Borrower and Administrative
Agent. Any such sale or grant of a participation is subject to the following
conditions:
-35-
(a) Administrative Agent and Borrower may, for all purposes of this
Agreement, deem and treat a Bank party to this Agreement as the owner of such
Bank's Loans hereunder for all purposes hereof until a written notice of the
sale or participation shall have been received by Administrative Agent, together
with Borrower's consent to treat such Participant as owner of such Loan.
(b) Subject to Section 11.16, Borrower authorizes each Bank and the
Administrative Agent to disclose to any prospective Participant and to any
Participant any and all information in such Bank's or the Administrative Agent's
possession concerning Borrower, this Agreement and any collateral.
(c) Any agreement pursuant to which a Bank grants a participation in its
rights with respect to any Loan or Loans shall provide that, with respect to any
such Loan or Loans, such Bank shall retain the sole right and responsibility to
exercise the rights of a Bank under this Agreement including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement and the right to take action to declare any amount
due and payable pursuant to Section 9; provided that such participation
agreement may provide that such Bank will not agree to any modification,
amendment or waiver of this Agreement without the consent of the Participant if
such modification, amendment or waiver would (i) increase the amount of the
Total Commitment or change the Commitment of such Bank, (ii) reduce interest,
principal or fees owing to such Bank hereunder, (iii) extend the fixed date on
which any sum is due hereunder, or (iv) release or subordinate any material
portion of collateral.
(d) Except as provided in this Section 11.13, no recipient of a
participation in a Loan or Loans of any Bank shall have any rights under this
Agreement other than to receive payment of principal of, and interest on the
Loans and of such other amounts as Banks are entitled to receive pursuant to
Sections 3.1, 3.2, 3.3, and 3.4 of this Agreement; provided, however such
recipients shall be entitled to receive pursuant to Sections 3.1, 3.2 and 3.3
only the lesser of (i) the amount that the Bank from which the recipient
received its participation would have received had such Bank not transferred an
interest in its Loans to such recipient and (ii) the additional costs actually
incurred by such recipient; and any demand by a Participant for payment
hereunder shall certify that the amount demanded does not exceed the amount
Participant is entitled to receive under this subsection (d).
(e) Notwithstanding any other provision set forth in this Agreement, any
Bank may at any time create a security interest in all or any portion of its
rights under this Agreement (including, without limitation, the Loans owing to
it) in favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
11.14 Fees and Expenses. Borrower agrees to pay on demand (a) to
-----------------
Administrative Agent all reasonable costs, expenses and attorneys' fees
(including allocated costs for in-house legal services) incurred by
Administrative Agent and the Arrangers in connection with the preparation and
administration of this Agreement and any documents including any amendments,
waivers, or other modifications and (b) all reasonable costs, expenses and
attorneys' fees (including allocated costs for in-house legal services) incurred
by Administrative Agent and Banks in connection with the enforcement of this
Agreement and any instrument or agreement required hereunder and in connection
with any refinancing or restructuring of the Loans in the
-36-
nature of a "work-out"; provided, however that, in addition to costs of
Administrative Agent's in-house counsel, Borrower shall be obligated to pay for
the costs of no more than one counsel for Administrative Agent and all Banks
(without prejudice to any Bank's right to engage additional counsel at its own
cost and expense) unless any Bank shall in good faith reasonably determine that
there is a conflict of interest that causes it to be reasonably necessary for
such Bank to be represented by separate counsel.
11.15 Indemnity. Borrower agrees to indemnify the Administrative Agent,
---------
the Arrangers, each Bank and their respective directors, officers, agents and
employees (collectively, the "Indemnitees") from and hold each of them harmless
against any and all losses, liabilities, claims, damages or expenses, including
settlement costs) reasonably incurred by any of them arising out of or by reason
of any investigation by governmental or judicial authorities or being made a
party to any litigation or other similar proceeding related to any use made or
proposed to be made by Borrower of the proceeds of any Loan for the acquisition
of any other Person (other than with respect to a particular Indemnitee's
losses, liabilities, claims, damages or expenses incurred as a result of such
Indemnitee's gross negligence or willful misconduct), including, without
limitation, the reasonable fees and disbursements of counsel (including
allocated costs for in-house legal services) incurred in connection with any
such investigation, litigation or other proceeding; provided, however, that
-------- -------
Borrower shall have no obligation to indemnify or pay for the costs and expenses
of more than one counsel for the Indemnitees, unless any Indemnitee shall in
good faith reasonably determine that there is a conflict of interest that causes
it to be reasonably necessary for any Indemnitees to be represented by other
counsel. Counsel chosen to represent any Indemnitee pursuant to the previous
sentence shall be reasonably satisfactory to Borrower. The obligations of
Borrower under this Section shall survive the termination of this Agreement.
11.16 Confidentiality. In consideration of Borrower furnishing Confidential
---------------
Information(as defined below) to Banks, the Arrangers and Administrative Agent
(collectively, the "Recipients") and their respective directors, officers and
employees (collectively, the "Representatives"), each Recipient agrees for
itself that:
(a) Such Recipient shall keep the Confidential Information confidential and
shall not, without Borrower's prior written consent, disclose it in any manner
whatsoever, in whole or in part, and shall not use the Confidential Information
other than in connection with this Agreement. Each Recipient agrees to reveal
the Confidential Information only to its Representatives, bank affiliates,
auditors, counsel and other advisors, representatives or agents who need to know
the Confidential Information for the purpose of this Agreement, who are informed
by such Recipient of the confidential nature of the Confidential Information and
who shall agree to act in accordance with the terms and conditions of this
section. Each Recipient shall be responsible for any breach of this Section by
its Representatives.
(b) Without Borrower's prior written consent, no Recipient shall disclose
to any Person the fact that the Confidential Information has been made available
or any other facts with respect to this Agreement.
(c) Upon payment in full of all obligations owing to a Recipient and
termination of such Recipient's Commitments, if any, hereunder, copies of the
Confidential Information shall be
-37-
returned by such Recipient to Borrower immediately upon its request, except for
that portion of the information which consists of analyses, compilations,
forecasts, studies or other documents prepared by such Recipient or its
Representatives based on Confidential Information, which portion shall either be
destroyed (as evidenced by a certificate of destruction signed by a duly
authorized offer of such Recipient) or held by such Recipient and kept
confidential and subject to the terms of this section; provided that such
--------
Recipient shall not be required to return or destroy Confidential Information to
the extent such Recipient reasonably determines that its retention of such
Confidential Information is required by applicable law or regulation. Any oral
Confidential Information shall continue to be subject to the terms of this
Section.
(d) Confidential Information shall not include such portions of the
information furnished to a Recipient which (i) are or become generally available
to the public other than as a result of a disclosure by such Recipient or its
Representatives in violation of this Agreement, (ii) become available to such
Recipient on a non-confidential basis from a source (other than Borrower or its
Representatives) which is not known by such Recipient to be prohibited from
disclosing such information to such Recipient, or (iii) were in such Recipient's
possession prior to being furnished to such Recipient or its Representatives
provided that the source of such information was not known by such Recipient to
be prohibited from disclosing the information to such Recipient.
(e) Subject to Section 6.15 and except as otherwise expressly set forth in
this Agreement. each Recipient acknowledges that neither Borrower nor any of its
Representatives makes any express or implied representation or warranty as to
the accuracy or completeness of the information furnished to such Recipient, and
that neither Borrower nor any of its Representatives shall have any liability
resulting from the use of the information furnished to any Recipient, errors
therein or omissions therefrom.
(f) In the event any Recipient or any person to whom it transmits the
Confidential Information pursuant to this Agreement becomes legally compelled to
disclose any of the information, such Recipient shall, to the extent permitted
by law, provide Borrower with prompt written notice thereof so that the Borrower
may seek a protective order or other appropriate remedy and/or waiver such
Recipient's compliance with the provisions of this section, In the event that
such protective order or other remedy is not obtained, or that Borrower waives
any Recipient's compliance with the provisions of this section, such Recipient
may furnish only that portion of the Confidential Information which it is
advised by written opinion of counsel that the disclosure thereof is legally
required, and shall exercise its best efforts to obtain reliable assurance that
confidential treatment will be accorded the Confidential Information so
disclosed.
(g) Notwithstanding the foregoing, a Recipient may (i) disclose any
Confidential Information to bank examiners; (ii) use any Confidential
Information in connection with the management, supervision and enforcement of
this Agreement, including the enforcement of such Recipient's rights under any
agreement executed in connection therewith; (iii) disclose any Confidential
Information in connection with any litigation or dispute involving any such
Person or the Borrower and related to this Agreement or to any use of proceeds
of the Loans; (iv) disclose any Confidential Information to other Recipients;
and (v) disclose Confidential Information to prospective assignees and
Participants and assignees and Participants pursuant to Sections 3.8, 11.11(b)
and 11.13(b); provided, further, that in each of the foregoing cases, such
-38-
Person shall use its best efforts to ensure that any such disclosure will be
made under procedures reasonably calculated to maintain the confidentiality of
such Confidential Information.
For purposes of this Section, "Confidential Information" means information
relating to the business, operation or technology of Borrower or its affiliates
which Borrower has furnished to Banks, the Arrangers, Administrative Agent or
their Representatives which is either non-public, confidential or proprietary in
nature, together with copies and other reproductions thereof, and analyses,
compilations, forecasts, studies or other documents prepared by any Banks or its
Representatives which contain or otherwise reflect such information.
This section shall survive termination of the Agreement.
11.17 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY
--------------------------------
EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION ARISING UNDER THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR
RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM WITH
RESPECT TO THIS AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR
TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
[Remainder of page intentionally left blank]
-39-
IN WITNESS WHEREOF, this Agreement has been executed by the parties hereto
in Los Angeles, California as of the date first hereinabove written.
XXXXXX ELECTRONICS CORPORATION
By:______________________________
Name:
Title:
S-1
BANK OF AMERICA, N.A., as
Administrative Agent
By:___________________________________
Name:
Title:
S-2
THE BANK OF NEW YORK
By:___________________________________
Name:
Title:
X-0
XXXX XXX, XX
By:__________________________________
Name:
Title:
S-4
CITICORP USA, INC.
By:_________________________________
Name:
Title:
S-5
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCHES
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
S-6
XXXXXXX XXXXX CAPITAL CORPORATION
By: _______________________________
Name:
Title:
S-7
XXXXXX GUARANTY TRUST COMPANY OF
NEW YORK
By: _______________________________
Name:
Title:
S-8
BANK OF AMERICA, N.A., as a Bank
By: _______________________________
Name:
Title:
S-9
SCHEDULE 1
BANKS AND COMMITMENTS
Bank Commitment Normal Percentage
---- ---------- -----------------
Bank of America, N.A. $100,000,000 20.0000%
Citicorp USA, Inc. $150,000,000 30.0000%
Deutsche Bank AG, New York $ 50,000,000 10.0000%
and/or Cayman Islands
Branches
Xxxxxxx Xxxxx $ 50,000,000 10.0000%
Banc One $ 50,000,000 10.0000%
X.X. Xxxxxx $ 50,000,000 10.0000%
Bank of New York $ 50,000,000 10.0000%
Total $500,000,000 100.0000%
-1-
EXHIBIT A
LOAN REQUEST
TO: Bank of America, N.A.,
as Administrative Agent for Banks
FROM: Xxxxxx Electronics Corporation
DATE:
RE: Xxxxxx Electronics Corporation -
Revolving Credit Agreement (Bridge
Facility)
Ladies and Gentlemen:
1. We refer to the Revolving Credit Agreement (Bridge Facility) dated as of
November 24, 1999 and made among Xxxxxx Electronics Corporation, the banks
parties thereto ("Banks") and Bank of America, N.A., as administrative agent for
the Banks (in such capacity "Administrative Agent"). Terms defined in the
Agreement shall have the same meanings herein.
2. We hereby request that a [Base Rate Loan] [Eurodollar Loan] is made to
us as follows:
(i) Principal Amount:
(ii) Borrowing Date:
(iii) Interest Period (if a Eurodollar Loan):
3. For the purposes of inducing the Banks to make the Loan requested
herein, we confirm that, pursuant to Section 5.3 of the Agreement, as of the
date hereof:
(i) the representations and warranties set out in Section 6 of the
Agreement (with the exception of Section 6.6) are true and
correct in all material respects;
(ii) the most current financial statements delivered pursuant to
Section 7.5 of the Agreement present fairly the financial
position and results of operation and changes in financial
position of Borrower and its consolidated Subsidiaries as at
the end of, and for the fiscal period to which such statements
relate as of the date thereof (subject, in the case of
unaudited financial statements, to year end adjustments); and
(iii) no Event of Default or Unmatured Event of Default has occurred
and is continuing.
A-1
LOAN REQUEST
XXXXXX ELECTRONICS CORPORATION
By: ____________________________________
Name:
Title:
A-2
LOAN REQUEST
EXHIBIT B
RELATIONS AMONG THE BANKS AND AGENTS
1. Administration of the Credit. Payment of interest and principal on
----------------------------
the Loans and the facility fee and all other amounts payable by Borrower
hereunder shall be made by Borrower in immediately available funds, directly to
each Bank in the case of amounts payable under Sections 3.1, 3.2 and 3.3 and, in
all other cases, to Administrative Agent, and Administrative Agent shall
promptly distribute to the other Banks in immediately available funds their
shares of principal, interest and fees and to each Bank as provided herein such
other amounts as paid by Borrower.
2. Pro Rata Distribution. All facility fees will be divided among the
---------------------
Banks in accordance with their Normal Percentage, and interest and principal
payments on each Loan will be divided pro rata among Banks in accordance with
their percentage interest in the Loan.
3. Right of Setoff. Any Bank which shall receive payment of or on
---------------
account of all or part of its share of the Loans through the exercise of any
right of setoff, counterclaim, or banker's lien, or otherwise in a greater
proportion than the proportionate amount of principal and interest due it under
this Agreement immediately prior to such payment shall purchase a ratable
proportion of the portions of the Loan held by the other Banks so that all
recoveries of principal and interest shall be shared by the Banks in accordance
with their pro rata interests in the Loans outstanding hereunder. If all or any
portion of such excess payment is thereafter recovered from such Bank, such
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest. Any sum received by Bank through exercise
of the right of setoff, counterclaim, or banker's lien shall be deemed to be
first applied to such Bank's portion of the indebtedness under this Agreement,
second as herein above provided and any balance remaining thereafter shall be
deemed applied to any other indebtedness of Borrower to such Bank.
4. Notice of Event of Default. Upon receipt by Administrative Agent from
--------------------------
Borrower of any communication calling for an action on the part of Banks, or
upon notice to Administrative Agent of an Unmatured Event of Default or an Event
of Default, it will in turn promptly inform the other Banks in writing of the
nature of such communication or of the Unmatured Event of Default or Event of
Default, as the case may be.
5. Actions by Administrative Agent. Upon any occasion requiring or
-------------------------------
permitting an approval, consent, election or other action on the part of Banks,
action shall be taken by Administrative Agent for and on behalf or for the
benefit of all Banks upon the direction of the required number of Banks and the
Administrative Agent, if applicable, as set forth in Section 11.1 of the
Agreement.
6. Several Liability of Banks. The obligation of each Bank hereunder is
--------------------------
several, and the failure of one Bank to perform hereunder shall in no way
relieve the other Banks from performance.
7. Liability of Administrative Agent. Administrative Agent shall not be
---------------------------------
liable or answerable for anything whatsoever in connection with this Agreement
except for its willful
B-1
RELATIONS AMONG THE BANKS AND THE AGENT
misconduct or gross negligence, and Administrative Agent shall have no duties or
obligations other than as provided herein. Administrative Agent shall be
entitled to rely on any opinion of counsel (including counsel for Borrower) in
relation to this Agreement, and upon statements and communications received from
Borrower, or from any other person, believed by it to be authentic, and shall
not be liable for any action taken or omitted in good faith on such reliance.
8. Indemnification of Administrative Agent. Each Bank agrees to
---------------------------------------
indemnify Administrative Agent (to the extent not reimbursed by Borrower and
without limiting the obligation of Borrower to do so), ratably according to its
Normal Percentage, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against Administrative Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by Administrative Agent
under this Agreement except for Administrative Agent's gross negligence or
willful misconduct. The obligations of the Banks under this Section 8 shall
survive termination of the Agreement.
9. Rights of Administrative Agent as Bank. With respect to its
--------------------------------------
obligation to lend under this Agreement and the Loans made by it, Bank of
America shall have the same rights and powers hereunder as any other Bank and
may exercise the same as though it were not Administrative Agent; and the term
"Banks" shall include Bank of America in its individual capacity. Bank of
America may accept deposits from, lend money to, and generally engage in any
kind of banking, trust or other business with Borrower as if it were not
Administrative Agent.
10. Assignment by Bank of its Obligations. Administrative Agent may deem
--------------------------------------
and treat a Bank party to this Agreement as the owner of such Bank's portion of
the Loans for all purposes hereof unless and until a written notice of the
assignment or transfer of such Bank's obligations otherwise permitted under the
Agreement executed by such Bank shall have been received by Administrative
Agent, together with Borrower's consent to such assignment or transfer and such
other documentation from such Bank and its assignee or transferee as
Administrative Agent may reasonably request.
11. Representations by Banks. Neither Administrative Agent nor any Bank
------------------------
has made or makes to any other Bank any representation, and neither
Administrative Agent nor any Bank assumes any responsibility, in respect to the
execution, construction or enforcement of this Agreement or any other instrument
or agreement executed by Borrower or by any other person or entity.
12. Independent Investigation by Banks. Each Bank has made and shall
----------------------------------
continue to make its own independent investigation of the financial condition
and affairs of Borrower in connection with the making and the continuance of the
Loans and has made and covenants that it shall continue to make its own
appraisal of the creditworthiness of Borrower. Each Bank agrees Administrative
Agent has no duty or responsibility, either initially or on a continuing basis,
to provide any Bank with any credit or other information with respect to
Borrower, whether coming into its possession before the making of the Loans or
at any time or times thereafter except as expressly provided in this Agreement.
B-2
RELATIONS AMONG THE BANKS AND THE AGENT
13. Successor Administrative Agent. Administrative Agent shall have the
------------------------------
right, at any time, to resign as Administrative Agent for the Banks hereunder.
Such resignation shall not be effective until a successor Administrative Agent
chosen by Majority Banks, and accepted by Borrower, shall accept appointment as
Administrative Agent for the Banks hereunder. If no successor Administrative
Agent shall have been so appointed by the Majority Banks and shall have accepted
such appointment, within 30 days after the retiring Administrative Agent has
given notice of resignation, the retiring Administrative Agent may, on behalf of
the Banks, appoint a successor Administrative Agent reasonably acceptable to
Borrower, which successor Administrative Agent shall be a commercial bank
organized under the laws of the United States of America or a State thereof
having a combined capital and surplus of at least $100,000,000. Upon the
acceptance by the successor Administrative Agent of its appointment hereunder,
the successor Administrative Agent shall succeed to and become vested with all
the rights and obligations of the retiring Administrative Agent, and the
retiring Administrative Agent shall be discharged from its obligations under
this Agreement. The provisions of this Article shall inure to the benefit of
the retiring Administrative Agent as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Exhibit B and Section 11.14 shall inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under this Agreement.
B-3
RELATIONS AMONG THE BANKS AND THE AGENT
EXHIBIT C
LENDING OFFICES OF BANKS AND ADDRESSES FOR NOTICES
BORROWER
000 Xxxxx Xxxxxxxxx Xxxx.
P. O. Box 956
ES, 001, A148
Xx Xxxxxxx, XX 00000-0000
Attention: Treasurer
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT
Bank of America N.A.
Mail Code: CA9-706-11-03
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Vice President
Agency Management-Los Angeles
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Administrative Agent's Payment Office:
--------------------------------------
Bank of America N.A.
Mail Code: CA4-706-05-09
0000 Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxxx
Assistant Vice President
Agency Administrative Services West
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
X-0
XXXX XX XXXXXXX, X.X., AS A BANK
Domestic and Offshore Lending Office:
-------------------------------------
Bank of America N.A.
Mail Code: CA4-706-05-09
Agency Administrative Services-West
0000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Xx. Account Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of
----------------------------------------------------
Conversion/Continuation):
-------------------------
Bank of America N.A.
Mail Code: CA9-706-11-07
000 Xxxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
Vice President
Credit Products Aerospace/Defense #9848
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
-------------------------------------
The Bank of New York
Xxx Xxxx Xxxxxx, 00/xx/ xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
C-2
Notices (other than Borrowing notices and Notices of Conversion/
----------------------------------------------------------------
Continuation):
--------------
The Bank of New York
00000 Xxxxxxxx Xxxx.
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxxx@xxxxxxxx.xxx
BANK ONE, NA
Domestic and Offshore Lending Office:
-------------------------------------
Bank One, NA
1 Bank Xxx Xxxxx
00/xx/ Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
----------------------------------------------------------------
Continuation):
--------------
Bank One, NA
000 Xxxxx Xxxxxxxx
0/xx/ Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxx
Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Email: xxxxxxx_xxxxxxx@xx.xxxxx.xxx
C-3
CITICORP USA, INC.
Domestic and Offshore Lending Office:
-------------------------------------
Citicorp, USA, Inc.
000 Xxxx Xxx.
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx
Loan Administrator
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
----------------------------------------------------------------
Continuation):
--------------
Citicorp USA, Inc.
000 Xxxx 0xx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
DEUTSCHE BANK AG NEW YORK AND/OR CAYMAN ISLANDS BRANCHES
Domestic and Offshore Lending Office:
-------------------------------------
Deutsche Bank AG
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxx/Xxxxxx X. Xxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
----------------------------------------------------------------
Continuation):
--------------
Deutsche Bank AG
00 Xxxx 00/xx/ Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
C-4
XXXXXXX XXXXX
Domestic and Offshore Lending Office:
-------------------------------------
Xxxxxxx Xxxxx Capital Corp.--Loan Syndicates
000 Xxxxx Xxxxxx
World Financial Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
(000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing notices and Notices of Conversion/
----------------------------------------------------------------
Continuation):
--------------
Xxxxxxx Xxxxx Capital Corp.--Loan Syndicates
000 Xxxxx Xxxxxx
World Financial Xxxxxx
00/xx/ Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK
Domestic Lending Office
-----------------------
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Execution Copies to:
-------------------
Xxxxxxx Xxxxxxx
Associate
Xxxxxx Guaranty Trust Company of New York
c/o X.X. Xxxxxx Services, Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
0/XXX0
Xxxxxx, XX 00000-0000
C-5
Conformed Copies to:
-------------------
Xxxxxx Xxxxxxxxx
Vice President
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Offshore Lending Office
-----------------------
Xxxxxx Guaranty Trust Company of New York
Euro-Loan Servicing Department
c/o X.X. Xxxxxx Services, Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000-0000
Execution Copies to:
-------------------
Xxxxxxx Xxxxxxx
Associate
Xxxxxx Guaranty Trust Company of New York
c/o X.X. Xxxxxx Services, Inc.
000 Xxxxxxx Xxxxxxxxxx Xxxx
0/XXX0
Xxxxxx, XX 00000-0000
Conformed Copies to:
-------------------
Xxxxxx Xxxxxxxxx
Vice President
Xxxxxx Guaranty Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Notices (other than Borrowing notices and Notices of
----------------------------------------------------
Conversion/Continuation):
-------------------------
XX Xxxxxx Securities Inc
00 Xxxx Xxxxxx
0/xx/ Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxxx
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
C-6
EXHIBIT D
EXISTING LIENS
PanAmSat
$124,000,000.00 Floating Rate Note secured by transponders of Galaxy III-R
due 2002
Galaxy Latin America
$95,000.00 Capital Lease of AT&T Telephone Switch
___________
Total $124,095,000.00
D-1
EXISTING LIENS
EXHIBIT E
OPINION OF COUNSEL
November 24, 1999
To: The Banks listed on Schedule A hereto and Bank of America, N.A., as
Administrative Agent
Re: Xxxxxx Electronics Corporation Revolving Credit Agreement (Bridge Facility)
---------------------------------------------------------------------------
Ladies and Gentlemen:
I am the Assistant General Counsel of Xxxxxx Electronics Corporation, a
Delaware corporation (the "Borrower"), in connection with the extension to
Borrower of a revolving line of credit extended under and subject to the terms
and provisions of the Revolving Credit Agreement (Bridge Facility) dated as of
November 24, 1999 and made among Xxxxxx Electronics Corporation, the banks
parties thereto ("Banks") and Bank of America, N.A., as administrative agent for
the Banks (in such capacity "Administrative Agent") (the "Credit Agreement").
Capitalized terms not otherwise defined herein shall have the meanings set forth
in the Credit Agreement. This opinion is rendered to you pursuant to Section
5.2(b) of the Credit Agreement.
As Assistant General Counsel to Borrower, I have caused to be made such
legal and factual examinations and inquiries, including an examination of
originals or copies, certified or otherwise identified to my satisfaction as
authentic, of such corporate records, agreements, instruments and other
documents as I have deemed necessary or appropriate for the purposes of this
opinion. I have caused to be obtained such certificates and other assurances
(copies of which have been delivered to you) from public officials and officers
and other employees of Borrower as I considered necessary or appropriate for the
purpose of rendering this opinion. I have assumed the genuineness of all
signatures (except that of Borrower), the authenticity of all documents
submitted to me as originals, and the conformity with the originals of all
documents submitted to me as copies.
Subject to the limitations herein set forth, I am opining herein as to the
effect on the subject transaction only of United States federal law, the laws of
the State of California and the General Corporation Law of the State of
Delaware. I am licensed to practice law in the State of California. I assume no
responsibility as to the applicability to the subject transaction or the effect
thereon of the laws of any other jurisdiction.
E-1
OPINION OF COUNSEL
Based upon the foregoing and in reliance thereon, and subject to the
qualifications, limitations and assumptions set forth herein, I am of the
opinion that, as of the date hereof:
1. Borrower is a corporation duly incorporated and validity existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own and lease its properties and conduct its
business as presently owned and conducted.
2. Borrower is duly qualified to do business as a foreign corporation in
good standing in the State of California.
3. Borrower has full corporate power and authority to borrow the sums
provided for in the Credit Agreement, to execute and deliver the Credit
Agreement and to perform its obligations thereunder.
4. All corporate action required to be taken by Borrower for the
authorization, execution and delivery of the Credit Agreement by Borrower and
the performance by Borrower of its obligations thereunder has been duly taken.
5. The officer of Borrower executing the Credit Agreement is duly and
properly in office and duly authorized to execute the same.
6. The Credit Agreement is a valid and binding agreement of Borrower,
subject to the limitations, qualifications, exceptions and assumptions set forth
below.
7. To my knowledge, after causing to be conducted such legal and factual
examination and inquiries and causing to be conducted such discussions with and
obtaining such certificates or other confirmations from officers and other
employees of Borrower as I considered appropriate in the circumstances, no
consent, permission, authorization, order or license of any United States
federal or California governmental authority is necessary in connection with the
execution and delivery of the Credit Agreement by Borrower and Borrower's
performance of its obligations under the Credit Agreement.
8. There is no provision of the Certificate of Incorporation or the By-
laws of Borrower which would be contravened by the execution and delivery of the
Credit Agreement by Borrower or by the performance by Borrower of its
obligations under the Credit Agreement.
9. Borrower is not an "investment company" as defined in the Investment
Company Act of 1940, as amended.
10. To my knowledge, after causing to be conducted such legal and factual
examination and inquiries and causing to be conducted such discussions with and
obtaining such certificates or other confirmations from officers and other
employees of Borrower as I considered appropriate in the circumstances, no
consent or approval of any trustee or holder of any material indebtedness of
Borrower is necessary in connection with the execution and delivery of the
Credit Agreement by Borrower and Borrower's performance of its obligations under
the Credit Agreement.
E-2
OPINION OF COUNSEL
11. There is no provision of any indenture or material agreement for
borrowed money to which Borrower is a party or under which Borrower is
obligated, and of which I am aware, after causing to be conducted such legal and
factual examinations and inquiries and causing to be conducted such discussion
with and obtaining such certificates or other confirmations from officers and
other employees of Borrower as I considered appropriate in the circumstances,
which would be contravened by the execution and delivery of the Credit Agreement
and the Notes by Borrower or by the performance by Borrower of its obligations
under the Credit Agreement.
12. To my knowledge, after causing to be conducted such legal and factual
examinations and inquiries and causing to be conducted such discussions with and
obtaining such certificates or other confirmations from officers and other
employees of Borrower as I considered appropriate in the circumstances, there is
no judgment, decree or order of any court or governmental agency binding on
Borrower which would be contravened by the execution and delivery of the Credit
Agreement by Borrower and Borrower's performance of its obligations under the
Credit Agreement and the Notes.
13. To my knowledge, after causing to be conducted such legal and factual
examinations and inquiries and obtaining certificates or other confirmations
from officers and employees of Borrower as I considered appropriate in the
circumstances, except as set forth in Attachment 1 hereto, there is no claim,
suit, action or proceeding pending or threatened against Borrower before any
court or governmental agency which could reasonably be expected to result in a
Material Adverse Change.
The opinion expressed in paragraph 6 is subject to the following
limitations, qualifications, exceptions and assumptions:
(a) the enforcement of the Credit Agreement and the Notes may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws or
by equitable principles relating to or limiting the rights of creditors
generally;
(b) the use of the term enforceable shall not imply any opinion as to the
availability of equitable remedies;
(c) I advise you that a California court may not strictly enforce certain
covenants contained in the Credit Agreement or allow acceleration of the
maturity of the indebtedness thereunder if it concludes that such enforcement or
acceleration would be unreasonable under the then existing circumstances. I do
believe, however, that subject to the limitations expressed elsewhere in this
opinion, enforcement or acceleration would be available if an Event of Default
occurs as a result of a material breach of a material covenant contained in the
Credit Agreement;
(d) The effect of California court decisions, invoking statutes or
principles of equity, which have held that certain covenants and provisions of
agreements are unenforceable where (i) the breach of such covenants or
provisions imposes restrictions or burdens upon the debtor, including the
acceleration of indebtedness due under debt instruments, and it cannot be
demonstrated that the enforcement of such restrictions or burdens is reasonably
necessary for the
E-3
OPINION OF COUNSEL
protection of the creditor, or (ii) the creditor's enforcement of such covenants
or provisions under the circumstances would violate the creditor's implied
covenant of good faith and fair dealing;
(e) The unenforceability under certain circumstances, under California or
federal law or court decisions, of provisions expressly or by implication
waiving broadly or vaguely stated rights, unknown future rights, defenses to
obligations or rights granted by law, where such waivers are against public
policy or prohibited by law;
(f) The unenforceability under certain circumstances of provisions to the
effect that rights or remedies are not exclusive, that every right or remedy is
cumulative and may be exercised in addition to or with any other right or
remedy, that election of a particular remedy or remedies does not preclude
recourse to one or more other remedies or that failure to exercise or delay in
exercising rights or remedies will not operate as a waiver of any such right or
remedy;
(g) The effect of Section 1717 of the California Civil Code, which
provides that, where a contract permits one party to the contract to recover
attorneys' fees, the prevailing party in any action to enforce any provision of
the contract shall be entitled to recover its reasonable attorneys' fees;
(h) The unenforceability under certain circumstances of provisions
indemnifying a party against liability for its own wrongful or negligent acts or
where such indemnification is contrary to public policy or prohibited by law;
and
(i) The enforceability under certain circumstances of provisions imposing
penalties, forfeitures, late payment charges or an increase in interest rate
upon delinquency in payment or the occurrence of a default.
To the extent that the obligations of Borrower may be dependent upon such
matters, I assume for purposes of this opinion that each of the Banks is duly
incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization; that each of the Banks is
duly qualified to engage in the transaction covered by this opinion; that the
Credit Agreement has been duly authorized, executed and delivered by each of the
Banks and that the Credit Agreement constitutes the valid and binding obligation
of each of the Banks, enforceable in accordance with its terms; and that each of
the Banks has the requisite corporate or organizational and legal power and
authority to own its properties, to carry on its business as now being conducted
and to perform its obligations under the Credit Agreement, including without
limitation, to make the loans under the Credit Agreement. I am not expressing
any opinion as to the effect of or the compliance by any Bank with any state or
federal laws or regulations applicable to the transactions because of the nature
of its respective business.
This opinion is rendered to the Banks and Administrative Agent as of the
date hereof in connection with the above transaction, and may not be relied upon
by any person other than the Administrative Agent and the Banks and their
permitted assignees, or by them in any other context, and may not be furnished
to, quoted to or relied upon by any other person, firm or corporation for any
purpose without my prior written consent; provided that each Bank and its
--------
E-4
OPINION OF COUNSEL
permitted assignees may provide this opinion (i) to bank examiners and other
regulatory authorities should they so request or in connection with their normal
examination, (ii) to the independent auditors and attorneys of such Bank, (iii)
pursuant to order or legal process of any court or governmental agency, (iv) in
connection with any legal action to which the Bank is a party arising out of the
transactions contemplated by the Credit Agreement, or (v) in connection with the
assignment of or sale of participations in the Loans.
Very truly yours,
E-5
OPINION OF COUNSEL
SCHEDULE A TO OPINION OF COUNSEL
E-6
OPINION OF COUNSEL
ATTACHMENT A TO OPINION OF COUNSEL
LITIGATION
[None.]
E-7
OPINION OF COUNSEL
EXHIBIT F
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFIES THAT:
(1) I am the duly elected [Title] of Xxxxxx Electronics Corporation,
a Delaware corporation ("Borrower");
(2) I have reviewed the terms of that certain Revolving Credit
Agreement (Bridge Facility) dated as of November 24, 1999, as amended,
supplemented or otherwise modified to the date hereof (said Revolving
Credit Agreement, as so amended, supplemented or otherwise modified,
being the "Credit Agreement", the terms defined therein and not
otherwise defined in this Certificate (including Attachment No. 1
annexed hereto and made a part hereof) being used in this Certificate
as therein defined), by and among Borrower, the financial institutions
listed therein as Banks, and Bank of America, N.A., as Administrative
Agent, and I have made, or have caused to be made under my
supervision, a review in reasonable detail of the transactions and
condition of Borrower and its Subsidiaries during the accounting
period covered by the attached financial statements; and
(3) The examination described in paragraph (2) above did not
disclose, and I have no knowledge of, the existence of any condition
or event which constitutes an Event of Default or Unmatured Event of
Default during or at the end of the accounting period covered by the
attached financial statements or as of the date of this Certificate[,
except as set forth below].
[Set forth [below] [in a separate attachment to this Certificate] are all
exceptions to paragraph (3) above listing, in detail, the nature of the
condition or event, the period during which it has existed and the action which
Borrower or any of its Subsidiaries, as applicable, has taken, is taking, or
proposes to take with respect to each such condition or event:
_______________________________________________________________________________]
F-1
COMPLIANCE CERTIFICATE
The foregoing certifications, together with the computations set forth in
Attachment No. 1 annexed hereto and made a part hereof and the financial
statements delivered with this Certificate in support hereof, are made and
delivered this __________ day of _____________, ____ pursuant to subsection
7.5(d) of the Credit Agreement.
DATED: ____________________ XXXXXX ELECTRONICS CORPORATION
By:__________________________
Name:
Title:
F-2
COMPLIANCE CERTIFICATE
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a Compliance
Certificate dated as of ____________, ____ and pertains to the period from
____________, ____ to ____________, ____. Subsection references herein relate
to subsections of the Credit Agreement.
A. Maximum Leverage Ratio (for the four-fiscal quarter
period ending _____________, ____)
1. Outstanding principal amount of all obligations
and liabilities for borrowed money: $_____________
2. portion of obligations with respect to capital leases
that are capitalized in excess of $25,000,000: $_____________
3. Consolidated Funded Indebtedness (1+2): $_____________
4. Consolidated Net Income: $_____________
5. Consolidated Interest Charges: $_____________
6. Provisions for taxes, if any, based on income used
or included in determining of 5: $_____________
7. Total depreciation expense deducted in determining 5: $_____________
8. Total amortization expense deducted in determining 5: $_____________
9. Adjustments per clauses (e), (f) and (g) of definition
of Consolidated EBITDA:
(a) Asia Pacific Mobile Telecommunications $_____________
(b) Xxxxxx Space and Communication ______________
(c) ICO Global Communications ______________
(d) Xxxxxx Network Systems wireless business ______________
(e) PanAmSat launch delays ______________
(f) DirecTV Japan, Ltd. ______________
Total $
=============
10. Less DirecTV Japan, Ltd. cash losses per
clause (h) of definition of consolidated $_____________
EBITDA:
F-3
COMPLIANCE CERTIFICATE
11. Non-cash charges resulting from a change in
business strategy regarding DirecTV Japan,
Ltd. (only for fiscal quarters in fiscal year
ending December 31, 2000) $_____________
12. Consolidated EBITDA (4+5+6+7+8+9-10+11): $_____________
13. Leverage Ratio (3):(12): ____:1.00
14. Maximum ratio allowed under subsection 8.5(b): ____:1.00
B. Minimum Shareholders' Equity
1. Base Shareholders' Equity: $7,125,000,000
2. 50% of consolidated net income (as determined
according to GAAP) earned in each fiscal quarter
ending after December 31, 1998 (with no deduction
for a net loss in any such fiscal quarter): $_____________
3. 50% aggregate increase in Equity by reason of
Borrower's issuance of capital stock: $_____________
4. Minimum Shareholders' Equity (1+2+3): $_____________
5. Shareholders' Equity $_____________
F-4
COMPLIANCE CERTIFICATE
EXHIBIT G
[FORM OF NOTICE OF ASSIGNMENT AND ACCEPTANCE]
[Date]
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Revolving Credit Agreement (Bridge Facility)
dated as of November 24, 1999 between Xxxxxx Electronics Corporation, a Delaware
corporation ("Borrower"), Lenders from time to time party thereto, and Bank of
--------
America, N.A., as Administrative Agent (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
---------
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 Agreement, including the right, title and interest of the Assignor in
and to the Commitment of the Assignor and all outstanding Loans made by the
Assignor. Before giving effect to such assignment:
(a) the aggregate amount of the Assignor's Commitment is $__________; and
(b) the aggregate principal amount of its outstanding Loans is $_________.
2. The Assignee hereby represents and warrants that it has complied with the
requirements of Section 11.11 of the Agreement in connection with this
-------------
assignment and acknowledges and agrees that: (a) other than the representation
and warranty that it is the legal and beneficial owner of the Normal Percentage
being assigned thereby free and clear of any adverse claim, the Assignor has
made no representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with the
Agreement or the execution, legality, validity, enforceability, genuineness or
sufficiency of the Agreement; (b) the Assignor has made no representation or
warranty and assumes no responsibility with respect to the financial condition
of Borrower or the performance by Borrower of its obligations under the
Agreement; (c) it has received a copy of the Agreement, together with copies of
the most recent financial statements delivered pursuant to Section 7.5 thereof
-----------
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (d) it will, independently and without reliance upon Administrative
Agent or any Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Agreement; (e) it appoints and authorizes
Administrative Agent to take such action and to exercise such powers under the
Agreement as are delegated to Administrative Agent by the Agreement; and (f) it
will perform in accordance with their terms all of the obligations which by the
terms of the Agreement are required to be performed by it as a Bank.
G-1
ASSIGNMENT AND ACCEPTANCE AGREEMENT
3. The Assignee agrees that, upon receiving your consent to such assignment
and from and after [________, ____], the Assignee will be bound by the terms of
the Agreement, with respect to the interest in the Agreement assigned to it as
specified above, as fully and to the same extent as if the Assignee were a Bank
originally holding such interest in the Agreement.
G-2
ASSIGNMENT AND ACCEPTANCE AGREEMENT
4. The following administrative details apply to the Assignee:
(a) Offshore Lending Office:
Assignee name: ______________________________
Address: ____________________________________
_____________________________________________
Attention: __________________________________
Telephone: (___) ___________________________
Telecopier: (___) ___________________________
(b) Domestic Lending Office:
Assignee name: ______________________________
Address: ____________________________________
_____________________________________________
Attention: __________________________________
Telephone: (___) ___________________________
Telecopier: (___) ___________________________
(c) Notice Address:
Assignee name: ______________________________
Address: ____________________________________
_____________________________________________
Attention: __________________________________
Telephone: (___) ___________________________
Telecopier: (___) ___________________________
(d) Payment Instructions: Account No.:
Account No. _________________________________
Attention: __________________________________
Reference: __________________________________
G-3
ASSIGNMENT AND ACCEPTANCE AGREEMENT
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,
[ASSIGNOR]
By: _____________________________
Name:
Title:
[ASSIGNEE]
By: _____________________________
Name:
Title:
We hereby consent to the
foregoing assignment.
XXXXXX ELECTRONICS CORPORATION
By: _________________________
Name:
Title:
BANK OF AMERICA, N.A., as
Administrative Agent
By: _________________________
Name:
Title:
G-4
ASSIGNMENT AND ACCEPTANCE AGREEMENT
