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<SEC-DOCUMENT>0000912057-01-506063.txt : 20010409
<SEC-HEADER>0000912057-01-506063.hdr.sgml : 20010409
ACCESSION NUMBER: 0000912057-01-506063
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 12
CONFORMED PERIOD OF REPORT: 20001231
FILED AS OF DATE: 20010402
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: BENCHMARK ELECTRONICS INC
CENTRAL INDEX KEY: 0000863436
STANDARD INDUSTRIAL CLASSIFICATION: PRINTED CIRCUIT BOARDS [3672]
IRS NUMBER: 742211011
STATE OF INCORPORATION: TX
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: 10-K
SEC ACT:
SEC FILE NUMBER: 001-10560
FILM NUMBER: 1589196
BUSINESS ADDRESS:
STREET 1: 3000 TECHNOLOGY DRIVE
CITY: ANGLETON
STATE: TX
ZIP: 77515
BUSINESS PHONE: 9798496550
MAIL ADDRESS:
STREET 1: 3000 TECHNOLOGY DR
CITY: ANGLETON
STATE: TX
ZIP: 77515
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>a2043169z10-k.txt
<DESCRIPTION>10-K
<TEXT>
<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 10-K
(Mark One)
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2000
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number 1-10560
BENCHMARK ELECTRONICS, INC.
(Exact Name of Registrant as Specified in its Charter)
---------------
Texas 74-2211011
(State or other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
3000 Technology Drive 77515
Angleton, Texas (Zip Code)
(Address of Principal Executive Offices)
Registrant's telephone number, including area code:
(979) 849-6550
---------------
Securities registered pursuant to Section 12(b) of the Act:
Name of Each Exchange
Title of Each Class on Which Registered
------------------- -------------------
Common Stock, par value $0.10 per share New York Stock Exchange, Inc.
Preferred Stock Purchase Rights New York Stock Exchange, Inc.
Securities registered pursuant to Section 12(g) of the Act: None
---------------
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes X No .
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to
the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [X]
As of March 29, 2001, the number of outstanding shares of Common Stock was
19,601,953. As of such date, the aggregate market value of the shares of Common
Stock held by non-affiliates, based on the closing price of the Common Stock on
the New York Stock Exchange on such date, was approximately $364.7 million.
Documents Incorporated by Reference:
(1) Portions of the Company's Annual Report to Shareholders for the fiscal year
ended December 31, 2000 (Part II Items 5-8 and Part IV Item 14(a)(1)).
(2) Portions of the Company's Proxy Statement for the 2001 Annual Meeting of
Shareholders (Part III, Items 10-13).
<PAGE>
TABLE OF CONTENTS
Page
PART I
ITEM 1. Business .................................................. 1
ITEM 2. Properties ................................................ 8
ITEM 3. Legal Proceedings ......................................... 9
ITEM 4. Submission of Matters to a Vote of Security Holders ....... 9
PART II
ITEM 5. Market for Registrant's Common Equity and Related
Shareholder Matters ..................................... 9
ITEM 6. Selected Financial Data ................................... 9
ITEM 7. Management's Discussion and Analysis of
Financial Condition and Results of Operations ........... 10
Item 7A. Quantitative and Qualitative Disclosures
About Market Risk ....................................... 10
ITEM 8. Financial Statements and Supplementary Data ............... 10
ITEM 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure ..................... 10
PART III
ITEM 10. Directors and Executive Officers of the Registrant ........ 10
ITEM 11. Executive Compensation .................................... 10
ITEM 12. Security Ownership of Certain Beneficial Owners
and Management .......................................... 10
ITEM 13. Certain Relationships and Related Transactions ............ 10
PART IV
ITEM 14. Exhibits, Financial Statement Schedules, and
Reports on Form 8-K ..................................... 11
ii
<PAGE>
PART I
Item 1. Business
Background
Benchmark Electronics, Inc., formerly named Electronics, Inc., began
operations in 1979 and was incorporated under Texas law in 1981 as a wholly
owned subsidiary of Intermedics, Inc., a medical implant manufacturer based in
Angleton, Texas. In 1986, Intermedics sold 90% of the outstanding shares of
common stock of the Company to Electronic Investors Corp., a corporation formed
by Donald E. Nigbor, Steven A. Barton and Cary T. Fu, three of our executive
officers. In 1988, Electronic Investors Corp. was merged into Benchmark, and in
1990 we completed the initial public offering of our common stock.
General
We are in the business of manufacturing electronics and provide our
services to original equipment manufacturers of telecommunication equipment,
computers and related products for business enterprises,
video/audio/entertainment products, industrial control equipment, testing and
instrumentation products, personal computers and medical devices. The services
that we provide are commonly referred to as electronics manufacturing services.
We offer our customers comprehensive and integrated design and manufacturing
services, from initial product design to volume production and direct order
fulfillment. We provide specialized engineering services including product
design, printed circuit board layout, prototyping and test development. We
believe that we have developed strengths in the manufacturing process for large,
complex, high-density printed circuit boards as well as the ability to
manufacture high and low volume products in lower cost regions such as Latin
America and Southeast Asia. As our customers expand internationally, they
increasingly require their electronics manufacturing services partners to have
strategic regional locations and global procurement capabilities. We believe
that our global manufacturing presence of 16 facilities in six countries
increases our ability to be responsive to our customers' needs by providing
accelerated time-to-market and time-to-volume production of high quality
products. These capabilities should enable us to build stronger strategic
relationships with our customers and to become a more integral part of their
operations.
Substantially all of our manufacturing services are provided on a turnkey
basis, whereby we purchase customer-specified components from our suppliers,
assemble the components on finished printed circuit boards, perform
post-production testing and provide our customers with production process and
testing documentation. We offer our customers flexible, "just-in-time" delivery
programs allowing product shipments to be closely coordinated with our
customers' inventory requirements. Additionally, we complete the assembly of our
customers' products at our facilities by integrating printed circuit board
assemblies into other elements of our customers' products. We also provide
manufacturing services on a consignment basis, whereby we utilize components
supplied by the customer to provide assembly and post-production testing
services. We currently operate, on approximately 1.8 million square feet, a
total of 57 surface mount production lines at our domestic facilities in
Alabama, Minnesota, New Hampshire, Massachusetts, Oregon, Tennessee, Texas and
Virginia; and 30 surface mount production lines at our international facilities
in Brazil, Ireland, Mexico, Scotland, and Singapore. Surface mount production
lines are assembly lines where electrical components are soldered directly onto
printed circuit boards.
Since the beginning of 1996, we have completed five acquisitions that have
broadened our service offerings, diversified our customer base with leading
original equipment manufacturers and expanded our geographic presence. Our
October 2000 acquisition of the assets of the MSI Division of Outreach
Technologies, Inc. provided us with additional manufacturing capacity in the
northeastern United States. Our August 1999 acquisition of AVEX Electronics,
Inc. and Kilbride Holdings B.V. provided us with a global presence and enabled
us to increase our scale of operations and expand our customer base
significantly. We have also acquired EMD Technologies, Inc., Lockheed Commercial
Electronics Company, and certain assets from Stratus Computer Ireland, which
improved our engineering capabilities, increased our manufacturing capacity and
expanded our international presence. In addition to these
1
<PAGE>
acquisitions, the opening of a new facility in Mansfield, Massachusetts during
2000 provided additional manufacturing capacity in the northeastern United
States and the opening of new systems integration facilities in Huntsville,
Alabama and Singapore expanded our systems integration capabilities.
We believe our primary competitive advantages are our design,
manufacturing, testing and supply chain management capabilities. We offer our
customers complete and flexible manufacturing solutions that provide accelerated
time-to-market, time-to-volume production, and reduced production costs. As a
result of working closely with our customers and responding promptly to their
needs, we have become an integral part of their operations. In addition, our
workforce is led by a management team that founded the Company and has an
average of 19 years of industry experience.
Business Strategy
Our goal is to be the electronics manufacturing services outsourcing
provider of choice to leading original equipment manufacturers in the high
growth segments of the electronics industry. To meet this goal, we have
implemented the following strategies:
o Maintain and Develop Close, Long-Term Relationships with Customers.
Our core strategy is to maintain and establish long-term relationships
with leading original equipment manufacturers in expanding industries
by becoming an integral part of our customers' manufacturing
operations. To this end, we work closely with our customers throughout
the design, manufacturing and distribution process, and we offer
flexible and responsive services. We believe we develop stronger
customer relationships by relying on our local management teams that
respond to frequently changing customer design specifications and
production requirements.
o Focus on High-End Products in High Growth Sectors. Electronics
manufacturing services providers produce products for a wide range of
original equipment manufacturers in different high growth industries,
such as consumer electronics, Internet-focused businesses and
telecommunications equipment. The product scope ranges from easy to
assemble, low-cost high-volume products targeted for the consumer
market to complicated state-of-the-art, mission critical electronic
hardware. Similarly, original equipment manufacturers' customers range
from consumer-oriented companies that compete primarily on price and
redesign their products every year to manufacturers of high-end
telecommunications equipment and computer and related products for
business enterprises that compete on technology and quality. We
currently offer state-of-the-art products for industry leaders who
require specialized engineering design and production services as well
as offering high volume manufacturing capabilities to our customer
base. Our ability to offer both of these services enables us to expand
our business relationships.
o Deliver Complete High and Low Volume Manufacturing Solutions Globally.
We believe original equipment manufacturers are increasingly requiring
from electronics manufacturing services providers a wide range of
specialized engineering and manufacturing services in order to reduce
their costs and accelerate their time-to-market and time-to-volume
production. Building on our integrated engineering and manufacturing
capabilities, we offer services from initial product design and test
to final product assembly and distribution to the original equipment
manufacturers' customers. With the AVEX acquisition, we also offer our
customers high volume production in low cost regions of the world,
such as Brazil and Mexico. These full service capabilities allow us to
offer customers the flexibility to move quickly from design and
initial introduction to production and distribution.
2
<PAGE>
o Leverage Advanced Technological Capabilities. Our traditional
strengths in the manufacturing processes for assembling large, complex
high-density printed circuit boards enable us to offer customers
advanced design, technology and manufacturing solutions for their
primary products. We provide this engineering expertise through our
design capabilities in each of our facilities, and in our design
centers located in Winona, Minnesota, Huntsville, Alabama and Cork,
Ireland. We believe our capabilities help our customers improve
product performance and reduce costs.
o Continue Our Global Expansion. A strategically positioned facilities
network can simplify and shorten an original equipment manufacturer's
supply chain and reduce the time it takes to bring product to market.
We are committed to pursuing geographic expansion in order to support
our global customers with cost-effective and timely delivery of
quality products and services worldwide. Our AVEX acquisition
significantly expanded our service scope to provide a global
manufacturing solution to our customers at 16 facilities located in
Brazil, Ireland, Mexico, Scotland, Singapore and the United States.
o Selectively Pursue Strategic Acquisitions. We have completed five
acquisitions since July 1996 and will continue to selectively seek
acquisition opportunities. Our acquisitions have enhanced our business
in the following ways:
o expanded geographic presence;
o enhanced customer growth opportunities;
o developed strategic relationships;
o broadened service offerings;
o diversified into new market sectors; and
o added experienced management teams.
We believe that growth by selective acquisitions is critical for achieving
the scale, flexibility and breadth of customer services required to remain
competitive in the electronics manufacturing services industry.
Acquisitions
Since July 1996, we have completed five acquisitions. These acquisitions
have broadened our service offerings, diversified our customer base with leading
original equipment manufacturers and expanded our geographic presence. These
acquisitions were:
o MSI Division. On October 2, 2000, we acquired substantially all of the
assets and properties, net of assumed liabilities, of the MSI Division of
Outreach Technologies, Inc. Now operated as our Manassas, Virginia
division, this facility provided additional manufacturing capacity in the
northeastern United States.
o AVEX Electronics, Inc. and related companies. On August 24, 1999, we
completed the acquisition of AVEX, one of the largest privately-held
contract manufacturers. This acquisition provided us a global presence with
14 facilities in eight countries at the time of the acquisition and a sales
base of approximately $1.5 billion on a pro forma basis for 1999. With this
acquisition, we became the sixth largest publicly held electronics
manufacturing services provider in the world based on 1998 pro forma sales.
This acquisition expanded our customer base to approximately 90 original
equipment manufacturers in a broader range of end user markets.
3
<PAGE>
o Stratus Computer Ireland. On March 1, 1999, we acquired various assets from
Stratus Computer Ireland, and in connection with the transaction entered
into a three-year supply agreement to provide system integration services
to Ascend and Stratus Holdings Limited. The acquired assets increased our
ability to provide a broad range of services to the European market and
enhanced our systems integration capabilities and our box build engineering
capabilities, which is the process of building the finished product from
subassemblies. The process may also involve loading software and optional
configuration.
0 Lockheed Commercial Electronics Company. In February 1998, we acquired
Lockheed Commercial Electronics Company. This acquisition provided us with
manufacturing capacity in the northeastern United States and 19 additional
customers. Now operated as our Hudson, New Hampshire division, the facility
provides a broad range of services including:
o assembly and testing of printed circuit boards;
o systems assembly and testing;
o prototyping, which is building initial quantities of a new product to
test and refine the design;
o depot repair, which is the method of repairing equipment in which the
customer ships a damaged product to a central location for repair, as
opposed to field repair;
o materials procurement; and
o engineering and design support services.
o EMD Technologies, Inc. In July 1996, we acquired EMD Technologies, Inc., an
independent provider of electronics manufacturing and product design
services. Now operated as our Winona, Minnesota division, this facility
provides a complete range of enhanced product design and configurations for
subsystems and enclosures. In addition to design services, this acquisition
provided us with manufacturing capabilities in the midwestern United States
and 19 additional customers.
Electronics Manufacturing Services Industry
Many original equipment manufacturers in the electronics industry are
increasingly using electronics manufacturing service providers in their business
and manufacturing strategies and are seeking to outsource a broad range of
manufacturing and related engineering services. Outsourcing allows original
equipment manufacturers to take advantage of the manufacturing expertise of, and
capital investments by, electronics manufacturing service providers. This
enables original equipment manufacturers to concentrate on what they believe to
be their core strengths, such as product development, marketing and sales.
Original equipment manufacturers utilize electronics manufacturing service
providers to enhance their competitive position by:
o reducing capital investment requirements and fixed overhead costs;
o accessing advanced manufacturing and design capabilities;
o reducing production costs;
o accelerating time-to-market and time-to-volume production;
o improving inventory management and purchasing power; and
o accessing worldwide manufacturing capabilities.
Services We Provide
Engineering. Our approach is to coordinate and integrate our design,
prototype and other engineering capabilities. Through this approach, we provide
a broad range of engineering services and, in some cases, dedicated production
lines for prototypes. These services strengthen our relationships with
manufacturing customers and attract new customers requiring specialized
engineering services.
4
<PAGE>
To assist customers with initial design, we offer computer assisted
engineering, computer assisted design, engineering for manufacturability,
circuit board layout and test development. We also coordinate industrial design
and tooling for product manufacturing. After product design, we offer quickturn
prototyping, which means a rapid process of prototyping. During this process, we
assist with the transition to volume production. By participating in product
design and prototype development, we can reduce manufacturing costs and
accelerate the cycle from product introduction to large-scale production.
Materials Procurement and Management. Materials procurement and management
consists of the planning, purchasing, expediting and warehousing of components
and materials. Our inventory management and volume procurement capabilities
contribute to cost reductions and reduce total cycle time. Our materials
strategy is focused on leveraging our procurement volume corporate wide while
providing local execution for maximum flexibility at the division level. In
addition, our Dublin, Ireland facility has developed material processes required
to support high-end computer system integration operations.
Assembly and Manufacturing. Our manufacturing and assembly operations
include printed circuit boards and subsystem assembly, box build and systems
integration, the process of integrating sub-systems and downloading software
before producing a fully configured product. We purchase the printed circuit
boards used in our assembly operations from third parties. A substantial portion
of our sales is derived from the manufacture and assembly of complete products.
We employ various inventory management techniques, such as just-in-time,
ship-to-stock and autoreplenish, which are programs designed to ensure timely,
convenient and efficient delivery of assembled products to our customers. As
original equipment manufacturers seek to provide greater functionality in
smaller products, they increasingly require more sophisticated manufacturing
technologies and processes. Our investment in advanced manufacturing equipment
and our experience in innovative packaging and interconnect technologies enable
us to offer a variety of advanced manufacturing solutions. These packaging and
interconnect technologies include:
o chip scale packaging, the part of semiconductor manufacturing in which
the semiconductor die is bonded and sealed into a ceramic or plastic
package which physically protects the semiconductor device; and
o ball grid array, a method of attaching components to a printed circuit
board through balls of solder that are arranged in a grid pattern.
Testing. We offer computer-aided testing of assembled printed circuit
boards, subsystems and systems, which contributes significantly to our ability
to deliver high-quality products on a consistent basis. We work with our
customers to develop product-specific test strategies. Our test capabilities
include manufacturing defect analysis, in-circuit tests to test the circuitry of
the board and functional tests. We either custom design test equipment and
software ourselves or use test equipment and software provided by our customers.
In addition, we provide environmental stress tests of assemblies of boards or
systems.
Distribution. We offer our customers flexible, just-in-time delivery
programs allowing product shipments to be closely coordinated with customers'
inventory requirements. Increasingly, we ship products directly into customers'
distribution channels or directly to the end-user. We believe that this service
can provide our customers with a more comprehensive solution and enable them to
be more responsive to market demands.
Marketing and Customers
We market our services through a direct sales force and independent
marketing representatives. In addition, our divisional and executive management
teams are an integral part of our sales and marketing teams. During 2000, our
two largest customers, EMC and Sun Microsystems, each represented in excess of
10% of total sales and, in the aggregate, represented 25.9% of total sales.
6
<PAGE>
The following table sets forth the percentages of the Company's sales by
industry for 2000, 1999 and 1998.
2000 1999 1998
---- ---- ----
Computers & related products for
business enterprises .............. 36% 30% 44%
Telecommunication equipment ........... 34 39 31
Video/Audio/Entertainment products .... 10 6 --
Industrial control equipment .......... 8 9 9
Testing & instrumentation products .... 7 4 5
Medical devices ....................... 5 6 11
Personal computers .................... -- 6 --
Suppliers
We maintain a network of suppliers of components and other materials used
in assembling printed circuit boards. We procure components only when a purchase
order or forecast is received from a customer and occasionally utilize
components or other materials for which a supplier is the single source of
supply. Although we experience component shortages and longer lead times of
various components from time to time, we have generally been able to reduce the
impact of the component shortages by working with customers to reschedule
deliveries, by working with suppliers to provide the needed components using
just-in-time inventory programs, or by purchasing components at somewhat higher
prices from distributors, rather than directly from manufacturers. These
procedures reduce, but do not eliminate, our inventory risk. In addition, by
developing long-term relationships with suppliers, we have been better able to
minimize the effects of component shortages than manufacturers without such
relationships. In recent months, component shortages have become more prevalent
in our industry and, as a result, suppliers of such components are filling only
portions of orders from customers such as us. We expect this trend to continue
from time to time in the future.
Backlog
Our backlog was approximately $1.6 billion at December 31, 2000, compared
to $1 billion at December 31, 1999. Although we expect to fill substantially all
of our December 31, 2000 backlog during 2001, at December 31, 2000 we did not
have long-term agreements with all of our customers, and customer orders can be
canceled, changed or delayed by customers. The timely replacement of canceled,
changed or delayed orders with orders from new customers cannot be assured, nor
can there be any assurance that any of our current customers will continue to
utilize our services. Because of these factors, backlog is not a meaningful
indicator of future financial results.
Competition
The electronics manufacturing services we provide are available from many
independent sources as well as in-house manufacturing capabilities of current
and potential customers. Our competitors include Celestica, Inc., Flextronics
International Ltd., Jabil Circuit, Inc., SCI Systems, Inc. and Solectron
Corporation, who may be more established in the industry and have substantially
greater financial, manufacturing or marketing resources than we do. We believe
that the principal competitive factors in our targeted markets are product
quality, flexibility and timeliness in responding to design and schedule
changes, reliability in meeting product delivery schedules, pricing,
technological sophistication and geographic location.
6
<PAGE>
Governmental Regulation
Our operations, and the operations of businesses that we acquire, are
subject to certain foreign, federal, state and local regulatory requirements
relating to environmental, waste management, and health and safety matters. We
believe we operate in substantial compliance with all applicable requirements.
However, material costs and liabilities may arise from these requirements or
from new, modified or more stringent requirements. In addition, past, current
and future operations may give rise to claims of exposure by employees or the
public or to other claims or liabilities relating to environmental, waste
management or health and safety concerns.
We periodically generate and temporarily handle limited amounts of
materials that are considered hazardous waste under applicable law. We contract
for the off-site disposal of these materials and have implemented a waste
management program to address related regulatory issues.
Employees
As of December 31, 2000, we employed 6,158 people, of whom 4,652 were
engaged in manufacturing and operations, 929 in materials control and
procurement, 99 in design and development, 122 in marketing and sales, and 356
in administration. Although a majority of our workforce is non-union, employees
in our facilities in Brazil and Mexico are unionized, and work councils have
been established at our facilities in Cork, Ireland, and Scotland. The Company
has not experienced a strike or similar work stoppage and its relations with its
employees are satisfactory.
Segments and International Operations
Benchmark has 16 manufacturing facilities in the Americas, Europe, and Asia
regions to serve its customers. Benchmark is operated and managed geographically
and management evaluates performance and allocates Benchmark's resources on a
geographic basis. See Note 10 of Notes to Consolidated Financial Statements for
segment and geographical information. Prior to the acquisitions in 1999, all of
our operations were in the Americas region. We currently operate outside the
United States in Brazil, Ireland, Mexico, Scotland, and Singapore. In 2000,
approximately 20.1% of our sales were from operations outside of the United
States. As a result of continuous customer demand overseas, we expect foreign
sales to increase. Our foreign sales and operations are subject to risk of doing
business abroad, including fluctuations in the value of currency, export duties,
import controls and trade barriers, including stoppages, longer payment cycles,
greater difficulty in accounts receivable collection, burdens of complying with
wide variety of foreign laws and, in certain parts of the world, political
instability. While, to date, these factors have not adversely materially
affected Benchmark's results of operations, we cannot assure that there will not
be an adverse impact in the future.
7
<PAGE>
Item 2. Properties
Benchmark currently has 16 facilities worldwide.
[INSERT WORLD MAP WITH LOCATIONS]
The following chart summarizes the facilities owned or leased by Benchmark
and its subsidiaries:
<TABLE>
<CAPTION>
Location Sq. Ft. Function Ownership
- ------------------ ------ ----------------- ---------
<S> <C> <C> <C>
Angleton, Texas 109,000 Executive, manufacturing, and procurement Owned
Beaverton, Oregon 77,000 Manufacturing Leased
Campinas, Brazil 40,000 Manufacturing Leased
Cork, Ireland 24,000 Manufacturing and design Owned
Dublin, Ireland 149,000 Manufacturing and procurement Leased
East Kilbride, Scotland 80,000 Manufacturing and procurement Owned
Guadalajara, Mexico 150,000 Manufacturing Leased
Hudson, New Hampshire 262,000 Manufacturing and procurement Leased
Huntsville, Alabama 276,000 Manufacturing, design and procurement Owned
Huntsville, Alabama (SI) 144,000 Manufacturing and design Leased
Manassas, Virginia 44,000 Manufacturing and procurement Leased
Mansfield, Massachusetts 44,000 Manufacturing Leased
Pulaski, Tennessee 113,000 Manufacturing Owned
Singapore 37,000 Manufacturing and procurement Leased
Singapore (SI) 36,000 Manufacturing and procurement Leased
Winona, Minnesota 208,000 Manufacturing, design and procurement Leased, Owned
-------
Total 1,793,000
=========
</TABLE>
8
<PAGE>
Item 3. Legal Proceedings
On October 18, 1999, we announced that our third quarter earnings
announcement would be delayed and subsequently, on October 22, we announced our
earning for the third quarter were below the level of the same periods during
1998 and were below expectations. Several class action lawsuits were filed in
federal district court in Houston, Texas against Benchmark and two of its
officers and directors alleging violations of the federal securities laws. These
lawsuits were consolidated in February 2000. The lawsuit seeks to recover
unspecified damages. We deny the allegations in the lawsuits, however, and
further deny that such allegations provide a basis for recovery of damages as we
believe that we have made all required disclosures on a timely basis. Management
is vigorously defending against these actions. At the present time, we are
unable to reasonably estimate the possible loss, if any, associated with these
matters.
Benchmark filed suit against J. M. Huber Corporation ("Seller") in the
United States District Court for the Southern District of Texas for breach of
contract, fraud and negligent misrepresentation on December 14, 1999 and is
seeking an unspecified amount of damages in connection with the Amended and
Restated Stock Purchase Agreement dated August 12, 1999 between the parties
whereby Benchmark acquired all of the stock of AVEX and Kilbride Holdings B.V.
from Seller. On January 5, 2000, Seller filed suit in the United States District
Court for the Southern District of New York alleging that Benchmark failed to
comply with certain obligations under the contract requiring Benchmark to
register shares of its common stock issued to Seller as partial consideration
for the acquisition. Seller's suit has been consolidated with Benchmark's suit
in the United States District Court for the Southern District of Texas.
Benchmark intends to vigorously pursue its claims against Seller and defend
against Seller's allegations. At the present time, we are unable to reasonably
estimate the possible loss, if any, associated with these matters.
During the second quarter of 2000, Benchmark, along with numerous other
companies, was named as a defendant in a lawsuit brought by the Lemelson
Medical, Education & Research Foundation (the Foundation). The lawsuit alleges
that Benchmark has infringed certain of the Foundation's patents relating to
machine vision and bar code technology utilized in machines Benchmark has
purchased. On November 11, 2000, we filed an Answer, Affirmative Defenses, and a
Motion to Stay based upon Declaratory Judgment Actions filed by Cognex and
Symbol, manufacturers of the equipment at issue. We continue to explore any
indemnity or similar rights Benchmark may have against manufacturers of the
machines or other third parties. Management intends to vigorously defend against
such claim and pursue all rights it has against third parties. At the present
time, we are unable to reasonably estimate the possible loss, if any, associated
with these matters.
Benchmark is also involved in various other legal actions arising in
the ordinary course of business. In the opinion of management, the ultimate
disposition of these matters will not have a material adverse effect on
Benchmark's consolidated financial position or results of operations.
Item 4. Submission of Matters to a Vote of Security Holders
No matters were submitted to a vote of security holders during the
fourth quarter of 2000.
PART II
Item 5. Market for Registrant's Common Equity and Related Shareholder Matters
The information on page 39 of the Company's Annual Report to
Stockholders for the fiscal year ended December 31, 2000 (the "2000 Annual
Report") is incorporated herein by reference in response to this item.
9
<PAGE>
Item 6. Selected Financial Data
The information on page 40 of the 2000 Annual Report is incorporated
herein by reference in response to this item.
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations
The information on pages 9 through 18 of the 2000 Annual Report is
incorporated herein by reference in response to this item.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk
The information on pages 17 through 18 of the 2000 Annual Report is
incorporated herein by reference in response to this item.
Item 8. Financial Statements and Supplementary Data
The information on pages 19 through 39 of the 2000 Annual Report is
incorporated herein by reference in response to this item.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
Not applicable.
PART III
Item 10. Directors and Executive Officers of the Registrant
The information under the captions "Election of Directors," "Executive
Officers" and "Section 16(a) Beneficial Ownership Reporting Compliance" in the
Company's Proxy Statement for the 2001 Annual Meeting of Shareholders (the "2001
Proxy Statement"), to be filed not later than 120 days after the close of the
Company's fiscal year, is incorporated herein by reference in response to this
item.
Item 11. Executive Compensation
The information under the caption "Executive Compensation and Other
Matters" in the 2001 Proxy Statement, to be filed not later than 120 days after
the close of the Company's fiscal year, is incorporated herein by reference in
response to this item.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The information under the caption "Common Stock Ownership of Certain
Beneficial Owners and Management" in the 2001 Proxy Statement, to be filed not
later than 120 days after the close of the Company's fiscal year, is
incorporated herein by reference in response to this item.
Item 13. Certain Relationships and Related Transactions
The information under the caption "Certain Transactions" in the 2001
Proxy Statement, to be filed not later than 120 days after the close of the
Company's fiscal year, is incorporated herein by reference in response to this
item.
10
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K
(a) Financial Statements, Financial Statement Schedules, and Exhibits
1. Financial Statements of the Company
Reference is made to the Financial Statements, the report thereon, the
notes thereto and supplementary data commencing at page 19 of the 2000 Annual
Report, which financial statements, report, notes and data are incorporated
herein by reference in response to this item. Set forth below is a list of such
Financial Statements:
Consolidated Financial Statements of the Company
Independent Auditors' Report
Consolidated Balance Sheets as of December 31, 2000 and 1999
Consolidated Statements of Income for the years ended December 31,
2000, 1999 and 1998
Consolidated Statements of Shareholders' Equity and Comprehensive
Income for the years ended December 31, 2000, 1999 and 1998
Consolidated Statements of Cash Flows for the years ended December 31,
2000, 1999 and 1998 Notes to Consolidated Financial Statements
2. Financial Statement Schedule
Benchmark Electronics, Inc.
Schedule II - Valuation Accounts
(in thousands)
<TABLE>
<CAPTION>
Additions
Balance at ------------------------------------- Balance at
Beginning Charges to Other End of
of Period Operations Additions Deductions Period
--------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Year ended December 31, 2000
Allowance for doubtful accounts(1)(2) $ 7,705 921 64 4,414 4,276
Inventory obsolescence reserve(2)(3) $20,000 3,748 140 15,662 8,226
Year ended December 31, 1999
Allowance for doubtful accounts(1)(4) $ 100 273 7,332 -- 7,705
Inventory obsolescence reserve(4) $ 3,510 1,911 14,579 -- 20,000
Year ended December 31, 1998
Allowance for doubtful accounts(1) $ 156 -- -- 56 100
Inventory obsolescence reserve(3)(5) $ 1,751 583 3,100 1,924 3,510
</TABLE>
(1) Deductions in the allowance for doubtful accounts represent write-offs, net
of recoveries, of amounts determined to be uncollectible.
(2) Other addition relates to the acquisition of MSI.
(3) Deductions in the inventory obsolescence reserve represent disposals of
inventory determined to be obsolete.
(4) Other addition relates to the acquisition of AVEX.
(5) Other addition relates to the acquisition of LCEC.
11
<PAGE>
Independent Auditors' Report on Schedule
The Board of Directors and Shareholders
Benchmark Electronics, Inc.:
Under date of February 7, 2001, we reported on the consolidated balance sheets
of Benchmark Electronics, Inc. and subsidiaries as of December 31, 2000 and
1999, and the related consolidated statements of income, shareholders' equity
and comprehensive income, and cash flows for each of the years in the three-year
period ended December 31, 2000, as incorporated by reference in this annual
report on form 10-K for the year 2000. In connection with the audits of the
aforementioned consolidated financial statements, we also have audited the
related consolidated financial statement schedule included in Item 14(a)2. This
financial statement schedule is the responsibility of the Company's management.
Our responsibility is to express an opinion on this financial statement schedule
based on our audits.
In our opinion, such financial statement schedule, when considered in relation
to the basic consolidated financial statements taken as a whole, presents
fairly, in all material respects, the information set forth therein.
KPMG LLP
Houston, Texas
February 7, 2001
12
<PAGE>
3. Exhibits
Each exhibit marked with an asterisk is filed with this Annual Report
on Form 10-K.
Exhibit
Number Description
2.1 -- Purchase Agreement dated as of January 22, 1998 by and between
the Company and Lockheed Martin Corporation (incorporated herein
by reference to Exhibit 2 to the Company's Current Report on Form
8-K dated February 23, 1998).
2.2 -- Agreement and Plan of Merger dated as of March 27, 1996 by and
among the Company, Electronics Acquisition, Inc., EMD
Technologies, Inc., David H. Arnold and Daniel M. Rukavina
(incorporated herein by reference to Exhibit 2 to the Company's
Annual Report on Form 10-K for the fiscal year ended December 31,
1995).
2.3 -- Amendment No. 1 to Agreement and Plan of Merger dated as of April
5, 1996 by and among the Company, Electronics Acquisition, Inc.,
EMD Technologies, Inc., David H. Arnold and Daniel M. Rukavina
(incorporated herein by reference to Exhibit 2.2 to the Company's
Registration Statement on Form S-4 (Registration No. 333-4230)).
2.4 -- Purchase and Sale Agreement by and among Stratus Computer
Ireland, Ascend Communications Inc., BEI Electronics Ireland
Limited and the Company dated January 22, 1999 (incorporated by
reference herein to Exhibit 2.1 to the Company's Current Report
on Form 8-K dated January 22, 1999).
2.5 -- Amended and Restated Stock Purchase Agreement dated as of August
12, 1999 by and between the Company and J. M. Huber Corporation
(incorporated by reference herein to Exhibit 2 to the Company's
Current Report on Form 8-K dated August 24, 1999 and filed on
September 8, 1999).
2.6 -- Asset Purchase Agreement by and between Benchmark Electronics AB
and Flextronics International Sweden AB (incorporated by
reference herein to Exhibit 2 to the Company's Current Report on
Form 8-K/A dated July 31, 2000).
3.1 -- Restated Articles of Incorporation of the Company (incorporated
herein by reference to Exhibit 3.1 to the Company's Registration
Statement on Form S-1 (Registration No. 33-46316) (the
"Registration Statement")).
3.2 -- Amended and Restated Bylaws of the Company (incorporated herein
by reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31,1998).
3.3 -- Amendment to Amended and Restated Articles of Incorporation of
the Company adopted by the shareholders of the Company on May 20,
1997 (incorporated herein by reference to Exhibit 3.3 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998).
3.4 -- Statement of Resolution Establishing Series A Cumulative Junior
Participating Preferred Stock of Benchmark Electronics, Inc.
(incorporated by reference to Exhibit B of the Rights Agreement
dated December 11, 1998 between the Company and Harris Trust
Savings Bank, as Rights Agent, included as Exhibit 1 to the
Company's Form 8A12B filed December 11, 1998).
4.1 -- Restated Articles of Incorporation of the Company (incorporated
herein by reference to Exhibit 3.1 to the Registration
Statement).
13
<PAGE>
4.2 -- Amended and Restated Bylaws of the Company (incorporated herein
by reference to Exhibit 3.2 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1998).
4.3 -- Amendment to the Restated Articles of Incorporation of the
Company adopted by the shareholders of the Company on May 20,
1997 (incorporated herein by reference to Exhibit 3.3 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1998).
4.4 -- Specimen form of certificate evidencing the Common Stock
(incorporated herein by reference to Exhibit 4.3 to the
Registration Statement).
4.5 -- Rights Agreement dated December 11, 1998 between the Company and
Harris Trust Savings Bank, as Rights Agent, together with the
following exhibits thereto: Exhibit A -- Form of Statement of
Resolution Establishing Series A Cumulative Junior Participating
Preferred Stock of Benchmark Electronics, Inc.; Exhibit B -- Form
of Right Certificate; and Exhibit C -- Summary of Rights to
Purchase Preferred Stock of Benchmark Electronics, Inc.
(incorporated by reference to Exhibit 1 to the Company's Form
8A12B filed December 11, 1998).
4.6 -- Summary of Rights to Purchase Preferred Stock of the Company
(incorporated by reference to Exhibit 3 to the Company's Form
8A12B/A filed December 22, 1998).
4.7 -- Indenture dated as of August 13, 1999 by and between the Company
and Harris Trust Company of New York, as trustee (incorporated by
reference from Exhibit 99.3 to Benchmark's Form 8-K dated August
24, 1999 and filed on September 8, 1999).
10.1 -- Form of Indemnity Agreement between the Company and each of its
directors and officers (incorporated herein by reference to
Exhibit 10.11 to the Registration Statement).
10.2 -- Benchmark Electronics, Inc. Stock Option Plan dated May 11, 1990
(incorporated herein by reference to Exhibit 10.12 to the
Registration Statement).
10.3 -- Form of Benchmark Electronics, Inc. Incentive Stock Option
Agreement between the Company and the optionee (incorporated
herein by reference to Exhibit 10.13 to the Registration
Statement).
10.4 -- Form of Benchmark Electronics, Inc. Nonqualified Stock Option
Agreement between the Company and the optionee (incorporated
herein by reference to Exhibit 10.14 to the Registration
Statement).
10.5* -- First Amendment to Lucent Technologies Network Systems do Brasil
S.A. dated June 14, 2000 by and between Benchmark Electronics
Ltda and Lucent Technologies Network Systems do Brasil S.A.
10.6 -- Benchmark Electronics, Inc. 1994 Stock Option Plan for
Non-Employee Directors (incorporated herein by reference to
Exhibit 10.21 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994).
10.7 -- Benchmark Electronics, Inc. 401(k) Employee Savings Plan
(incorporated herein by reference to Exhibit 10.7 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999).
10.8 -- Benchmark Electronics, Inc. Employee Stock Purchase Plan
(incorporated by reference to Exhibit 99.1 to the Company's
Registration Statement on Form S-8 (Registration Number
333-76207)).
14
<PAGE>
10.9 -- Benchmark Electronics, Inc. 2000 Stock Awards Plan (incorporated
herein by reference to Exhibit 4.8 to the Company's Registration
Statement on Form S-8 (Registration Number 333-54186)).
10.10 -- Form of incentive stock option agreement for use under the 2000
Stock Awards Plan (incorporated herein by reference to Exhibit
4.8 to the Company's Registration Statement on Form S-8
(Registration Number 333-54186)).
10.11 -- First Amendment to the Benchmark Electronics, Inc. Employee Stock
Purchase Plan (incorporated herein by reference to Exhibit 10.1
to the Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 2000).
10.12* -- Lease Agreement dated June 1, 2000 between Industrial Properties
of the South and the Company.
10.13 -- Lease Agreement dated February 29, 2000 between Millikan
Properties, LLC and the Company (incorporated herein by reference
to Exhibit 10.12 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1999).
10.14 -- Lease Agreement dated July 30, 1996 by and among David H. Arnold,
Muriel M. Arnold, Daniel M. Rukavina, Patricia A. Rukavina and
EMD Associates, Inc., as amended by Amendment to Lease dated July
30, 1996 (incorporated herein by reference to Exhibit 10.10 to
the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996).
10.15 -- Lease Agreement dated December 15, 1992 by and among David H.
Arnold, Muriel M. Arnold, Daniel M. Rukavina, Patricia A.
Rukavina and EMD Associates, Inc., as amended by Amendment to
Lease dated January 1, 1994, Amendment to Lease dated December
15, 1995, and Amendment to Lease dated July 30, 1996
(incorporated herein by reference to Exhibit 10.11 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1996).
10.16 -- CE Facility Lease dated February 23, 1998 by and between the
Company and Lockheed Martin Corporation Plan (incorporated herein
by reference to Exhibit 10.15 to the Company's Annual Report on
Form 10-K for the fiscal year ended December 31, 1999).
10.17 -- Sander's Sublease dated February 23, 1998 by and between the
Company and Sanders, a Lockheed Martin Company and a division of
Lockheed Martin Corporation (incorporated herein by reference to
Exhibit 10.16 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999).
10.18 -- First Amendment to CE Facility Lease dated February 21, 2000 by
and between the Company and Lockheed Martin Corporation
(incorporated herein by reference to Exhibit 10.17 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999).
10.19 -- First Amendment to Sanders Sublease dated February 24, 2000 by
and between the Company and Sanders, a Lockheed Martin Company
and a division of Lockheed Martin Corporation (incorporated
herein by reference to Exhibit 10.18 to the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1999).
10.20 -- Lease Agreement dated February 22, 1999 by and between Serto,
S.A. de C.V. and AVEX Electronics de Mexico, S.R.L. de C.V.
(incorporated herein by reference to Exhibit 10.19 to the
Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999).
15
<PAGE>
10.21 -- Sublease Agreement dated February 22, 1999 by and between
Operadora Farmaceutica, S.A. de C.V. and AVEX Electronics de
Mexico, S.R.L. de C.V. (incorporated herein by reference to
Exhibit 10.20 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1999).
10.22* -- Lease Renewal Amendment dated September 29, 2000 by and between
the Company and General Electric Capital Corporation.
10.23 -- Guarantee dated September 10, 1998 by the Company in favor of
Kilmore Developments Limited (incorporated herein by reference to
Exhibit 10.14 to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998).
10.24* -- Lease Agreement dated March 9, 2001 by and between BEI
Electronics Ireland Limited and Canada Life Assurance (Ireland)
Limited.
10.25* -- Amended and Restated Credit Agreement dated as of June 23, 2000
by and among the Company, the Borrowing Subsidiaries, the lenders
party thereto, Fleet National Bank, as documentation agent,
Credit Suisse First Boston, as syndication agent, Bank of
America, N.A., Bank One NA and Sun Trust Bank as co-agents, and
Chase Bank of Texas, National Association, as administrative
agent, collateral agent and issuing bank.
10.26 -- Registration Rights Agreement dated as of August 24, 1999 by and
between the Company and J. M. Huber Corporation (incorporated by
reference from Exhibit 99.2 to Benchmark Electronics, Inc.'s Form
8-K dated August 24, 1999 and filed on September 8, 1999).
10.27 -- Registration Agreement dated as of August 9, 1999 by and among
the Company, Salomon Smith Barney Inc. and Chase Securities Inc.
(incorporated by reference from Exhibit 99.4 to Benchmark
Electronics, Inc.'s Form 8-K dated August 24, 1999 and filed on
September 8, 1999).
10.28* -- Lease Agreement dated September 15, 2000 by and between Benchmark
Electronics Corp. and Nancy E. Thompson, Trustee of Goat Hollow
Realty Trust.
10.29* -- Lease Agreement dated June 15, 1998 by and between AVEX
Electronics do Brasil Ltda and Lucent Technologies Network
Systems do Brasil S.A.
12* -- Statement regarding Computation of Ratios.
13* -- Benchmark Electronics, Inc. Annual Report to Shareholders for the
fiscal year ended December 31, 2000.
21* -- Subsidiaries of Benchmark Electronics, Inc.
23* -- Consent of Independent Auditors concerning incorporation by
reference in the Company's Registration Statements on Form S-8
(Registration No. 33-61660, No. 333-26805, No. 333-28997, No.
333-54186, No. 333-66889, and No. 333-76207) and on Form S-3
(Registration No. 333-90723 and No. 333-90887).
16
<PAGE>
(b) The following Current Reports on Form 8-K were filed by the Company during
the quarter ended December 31, 2000 or during the period from December 31,
1999 to the date of this Form 10-K:
The Company's Current Report on Form 8-K dated and filed on February 8,
2000.
The Company's Current Report on Form 8-K dated and filed on April 7, 2000.
The Company's Current Report on Form 8-K dated and filed on June 2, 2000.
The Company's Current Report on Form 8-K dated and filed on July 13, 2000.
The Company's Current Report on Form 8-K dated and filed on July 27, 2000.
The Company's Current Report on Form 8-K/A dated and filed on July 31,
2000.
The Company's Current Report on Form 8-K dated and filed on October 26,
2000.
The Company's Current Report on Form 8-K dated and filed on November 17,
2000.
The Company's Current Report on Form 8-K dated November 29, 2000 and filed
on November 30, 2000.
17
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
BENCHMARK ELECTRONICS, INC.
By: /s/ Donald E. Nigbor
-----------------------------
Donald E. Nigbor
President
Date: March 30, 2001
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities indicated and on the dates indicated.
<TABLE>
<CAPTION>
Name Position Date
---- -------- ----
<S> <C> <C>
Chairman of the
/s/ John C. Custer Board of Directors March 30, 2001
- -------------------------------- -------------------------
John C. Custer
Director and President
/s/ Donald E. Nigbor (principal executive officer) March 30, 2001
- -------------------------------- -------------------------
Donald E. Nigbor
Director and Executive
- -------------------------------- Vice President -------------------------
Stephen A. Barton
/s/ Cary T. Fu Director and Executive March 30, 2001
- -------------------------------- Vice President (principal financial -------------------------
Cary T. Fu and accounting officer)
Director
- -------------------------------- -------------------------
Peter G. Dorflinger
Director
- -------------------------------- -------------------------
Gerald W. Bodzy
/s/ David H. Arnold Director March 30, 2001
- -------------------------------- -------------------------
David H. Arnold
</TABLE>
18
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.5
<SEQUENCE>2
<FILENAME>a2043169zex-10_5.txt
<DESCRIPTION>EXHIBIT 10.5
<TEXT>
<PAGE>
Exhibit 10.5
FIRST AMENDMENT TO LEASE AGREEMENT
By this private instrument of first amendment (the "Amendment") to the Lease
Agreement (the "Agreement") executed on June 15, 1998, of the property located
at the Rodovia Dom Pedro I, km 128/129, number 605, the parties LUCENT
TECHNOLOGIES NETWORK SYSTEMS DO BRASIL S.A., a corporation organized under the
laws of Brazil, enrolled with the National Registry of Legal Entities under
number 84.512.045/0003-05, with head offices in the city of Campinas, State of
Sao Paulo, at the Rodovia Dom Pedro I, km. 128/129 (the "LESSOR"), and AVEX
ELECTRONICS DO BRASIL, LTDA, (now denominated BENCHMARK ELECTRONICS LTDA) , a
corporation organized under the laws of Brazil, enrolled with the National
Registry of Legal Entities under number 02.470.563/0001-79, with head offices in
the city of Campinas, State of Sao Paulo, at the Rodovia Dom Pedro 1, 1cm.
128/129 (the "LESSEE")
WHEREAS
LESSOR and LESSEE wishes to extend the term of the Agreement
LESSOR and LESSEE have entered into a certain "General Purchase Agreement number
GPA 1030", as of February 26, 1998, and a certain Equipment Purchase and Sale
Agreement and
Other Covenants, as of June 8, 1998; and
LESSOR and LESSEE have agreed upon the conditions for termination of the
Agreement, in case of expiration or termination of the agreements mentioned
above;
Now, therefore, LESSOR and LESSEE have agreed to amend the Agreement as follows:
1 -- LESSOR and LESSEE hereby mutually agree to extend the term of the
Agreement for an additional period of 10 (ten) months, from June 16th
2000 to April 30th 2001, so that the leased property shall be returned
to LESSOR, under the terms and conditions set forth in Section 3.1 and
following of the Agreement, until May 1st , 2001.
2 .- Effective the date of execution hereof, the parties hereby agree
that Section 5.2 of the Agreement shall read as follows:
<PAGE>
"5.2 LESSOR may terminate the present Agreement in the event of
expiration or termination of the "General Purchase Agreement number GPA
1030" (the "GPA"), entered by the parties as of February 26, 1998. In
any event, in case of termination of the Agreement as provided
hereunder, the LESSOR guaranties the continuity of the lease and the
occupation of the building to the LESSEE until May 1ST ,2001, in
according to the First Clause of this Amendment above."
3.- This Amendment shall be effective the date set forth hereinbelow,
and all the other clauses and conditions of the Agreement and its
attachments which have not been hereby amended, are be hereby ratified.
IN WITNESS WHEREOF, the parties have executed this instrument in three
counterparts of equal tenor and content, before the two undersigned witnesses.
Campinas, June 14th 2000
Lucent Technologies Network Systems do Brasil S.A.
By:
Title:
Benchmark Electronics Ltd
(ex-AVEX Electronics do Brasil Ltda.).
By: Mareo Antonio Follegatti
Title: General Manager
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.12
<SEQUENCE>3
<FILENAME>a2043169zex-10_12.txt
<DESCRIPTION>EXHIBIT 10.12
<TEXT>
<PAGE>
EXHIBIT 10.12
INDUSTRIAL PROPERTIES OF THE SOUTH
2903 Wall Triana Highway, Suite 7
HUNTSVILLE, AL 35824
LEASE AGREEMENT
This Lease Agreement dated as of the 1st day of JUNE, 2000 between INDUSTRIAL
PROPERTIES OF THE SOUTH (herein referred to as the "Lessor") and BENCHMARK
ELECTRONICS, INC. (herein referred to as the "Lessee").
WITNESSETH: That the Lessor hereby demises and leases unto the Lessee, from
the Lessor, for the term and upon the rentals-hereinafter specified, the
premises described herein and in Exhibit A
PREMISES
1. Square footage APPROXIMATELY 143,965 S.F.
Street Address 9805 KELLNER ROAD
City/Township HUNTSVILLE
County MADISON
State ALABAMA
Zip Code 35824
For purposes of this Lease Agreement the above described
premises shall be deemed the "Demised Premises." A legal
description of (and detailed information concerning) the
Demised Premises is attached hereto as Exhibit A, incorporated
herein by reference.
Lessor accepts the Demised Premises "as is," subject to the
Lessor improvements specified on Exhibit B; provided, however,
that Lessor represents and warrants that (i) the Demised
Premises is zoned for offices and contract manufacturing, and
there are no restrictive covenants imposed on the Demised
Premises (by the developer, owner or anyone else); and (ii) to
the best of its knowledge, the real property taxes on the
Demised Premises have been abated until August, 2013 and the
payment to the IDB is fixed at $12,000 per year until August,
2013.
TERM
2. The Initial Term of this Lease Agreement shall be FIVE (5)
YEARS commencing on JUNE 1, 2000 and terminating on MAY 31,
2005 unless sooner terminated, as provided herein. Lessee's
renewal options are set forth in Section 31. This Lease may be
extended by mutual written agreement of the parties'
authorized representatives, or upon exercise of any options
described herein.
1
<PAGE>
RENT
3. Rent is due the 1st of each month, and is late after the 5th
of each month. A LATE PAYMENT FEE OF ONE HUNDRED DOLLARS
($100.00) PER DAY will be charged to accounts RECEIVED after
the 5th of the month.
------ ------
Lessee Lessor
Lessee shall pay to the Lessor, without previous demand for
this rent by the Lessor rent in monthly installments and due
on the first of each month and forwarded via U.S. mail,
overnight courier, or by hand to the office of the Lessor as
provided herein or such other address as may otherwise be
directed by Lessor in writing; provided, that the Lessor has
performed all covenants contained herein and is not in default
hereof. If the term of this Lease Agreement shall commence or
terminate on a day other than the first day of the calendar
month, the rent for any partial month shall he prorated. For
the Initial Term the rent shall be an annual rent of
$633,446.00, payable in equal monthly installments of
$52,787.16.
Effective on and as of the commencement of any Renewal Term,
the rent last payable hereunder shall increase by the lesser
of (i) the Consumer Price Index over the prior term of the
lease or (ii) nine percent (9%). Thus, the maximum rent for
the first Renewal Term (if exercised) is $57,538.00 per month
($690,456.14 per year); the maximum rent for the second
Renewal Term (if exercised) is $62,716.42 per month
($752,597.20 per year); and the maximum rent for the third
Renewal Term (if exercised) is $68,360.90 per month
($820,330.94 per year).
In addition to the rent, Lessee will be responsible for those
charges delineated as "Lessee-paid charges" in Section 16.
QUIET ENJOYMENT
4. Lessor covenants that during the full term of this Lease
Agreement, upon the payment of the rent herein provided and
the performance by the Lessee of all covenants herein, Lessee
shall have and hold the Demised Premises, FREE from any
interference from the Lessor except as otherwise provided for
herein.
PEACEFUL POSSESSION
5. Lessor covenants that during the term of this Lease Agreement,
upon the payment of the rent herein provided and the
performance by the Lessee of all covenants herein, that the
Lessee shall peaceably and quietly have, hold, and enjoy
peaceful possession of tile Demised Premises. Lessor agrees to
defend Lessee's rights to quiet enjoyment of the Demised
Premises from the claims of all
2
<PAGE>
persons arising by, through or under Lessor during the term
of the lease.
PERMITTED USES
6. Lessee represents that it intends to use the Demised Premises
as an electronics manufacturing facility. Lessee, as well as
any permitted assignee or sublessee, shall be allowed to use
the Demised Premises for any other purpose that (i) is legal,
(ii) is not morally offensive (a distillery or cigarette
manufacturing facility), (iii) is in full compliance with all
applicable and governing zoning, business and use codes as
evidenced by the proper permits and certificates of occupancy,
and (iv) will not put excessive loads on the electrical,
mechanical, plumbing or other operating systems within the
building. Lessee shall provide Lessor with at least thirty
(30) days' advance written notice of any proposed change in
use of the Demised Premises.
SUBLETTING AND ASSIGNMENT
7. Lessee shall not sublet the Demised Premises nor any portion
thereof, nor shall this Lease Agreement be assigned by the
Lessee without the prior written consent of the Lessor, which
consent shall not be unreasonably withheld.
ATTORNMENT
8. In the event the Demised Premises are sold due to any
foreclosure sale or sales, by virtue of judicial proceedings
or otherwise, this Lease Agreement shall continue in full
force and effect, and Lessee agrees, upon request, to attorney
to and acknowledge the foreclosure purchaser or purchasers at
such sale as Lessor's hereunder; provided, however, that such
purchaser will accept all obligations of Lessor as contained
in this Lease Agreement.
ESTOPPEL CERTIFICATE
9. The Lessee agrees to execute an Estoppel Certificate for the
benefit of Lessor's lender or lenders; provided, however,
that such Estoppel Certificate consists solely of an
acknowledgment of the terms and conditions of this Lease
Agreement.
RULES AND REGULATIONS
10. This section intentionally left blank.
3
<PAGE>
LESSOR INSURANCE
11. Lessor shall maintain fire and extended coverage insurance on
the Demised Premises, unless otherwise specified in this Lease
Agreement in sufficient amounts so as to be able to make all
necessary repairs to the Demised Premises in the event of a
fire in or other destruction of the Demised Premises, as well
as insurance sufficient to cover bodily injury and personal
injury in the event of a claim against Lessor for same.
Certificates of insurance may be issued at Lessee's request at
reasonable times during the term of the Lease Agreement.
Lessor shall be responsible for any roof repair attributable
to natural forces, disasters or acts of God (e.g., tornadoes,
hurricanes, hail, earthquakes).
LESSEE INSURANCE
12. Lessee agrees to procure and maintain at Lessee's expense
throughout the term of this Lease Agreement and any extension
thereof, a policy or policies of insurance as follows: (a)
workers' compensation (statutory); (b) Employers' Liability
($1,000,000 per occurrence, bodily injury by accident or
disease, including death); Commercial General Liability
($1,000,000 combined limit, bodily injury, personal injury and
property damage, including blanket contractual liability). The
Lessor shall be included as an additional insured under
Commercial General Liability as respects this Lease Agreement.
Certificates of insurance may be issued at Lessor's request at
reasonable times during the term of the Lease Agreement.
All personal property of Lessee in the Demised Premises or in
the building of which the Demised Premises is a part shall be
at the sole risk of Lessee. Lessor shall not be liable for any
damage thereto or for the theft or misappropriation thereof,
unless such damage, theft or misappropriation is directly
attributable to the negligence or intentional acts of Lessor,
its agents or employees. Lessor shall not be liable for any
accident to or damage to property of Lessee resulting from the
use or operation of mechanical, electrical or plumbing
apparatus, unless caused by and due to the negligence of
Lessor, its agents or employees.
WAIVER OF SUBROGATION
12A. Lessor and Lessee hereby waive any and all rights of recovery
against each other for the loss or damage to the Demised
Premises or any adjacent property or the contents contained
therein on account of fire or other casualty or for injury
sustained on such property, provided such loss or damage is
insured or would be insured under the policies required to be
carried by Lessor or Lessee hereunder.
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<PAGE>
LESSEE'S AND LESSOR'S OBLIGATIONS AND INDEMNIFICATIONS
13. Lessor shall take all reasonable and necessary precautions to
prevent damage, injury, or loss of life in and around the
Demised Premises. Lessor agrees to indemnify and save Lessee
harmless from and against any and all claims, losses, actions,
damages, liability and expenses (collectively "Losses") in
connection with or arising out of (a) Lessee's use of the
Demised Premises occasioned wholly or in part by any willful
misconduct or negligent act or omission of Lessor, its agents,
clients, or customers and (b) contamination (environmental or
otherwise) of the Demised Premises caused or permitted by
Lessor or existing prior to Lessee's occupancy of the Demised
Premises. In case Lessee shall, without material fault on its
part, be made a party to any litigation commenced by or
against Lessor, Lessor shall protect and hold Lessee harmless
and shall pay all costs, expenses and reasonable attorneys'
fees incurred or paid by Lessee in connection with such
litigation. The aforementioned indemnification by Lessor of
Lessee shall not be effective as to any claim arising from
negligence or willful misconduct of the Lessee (to the extent
of such negligence or willful misconduct). Lessee agrees to
pay for environmental indemnity insurance up to a maximum of
$9,465.00 for the initial five-year term. If Lessee desires
the Lessor to continue to indemnify Lessee against
contamination of the Demised Premises existing prior to
Lessee's occupancy of the Demised Premises after the expiry of
the initial five-year term, Lessor shall use its best efforts
to renew the existing policy or to obtain an environmental
indemnification policy on substantially the same terms and
Lessee shall pay for the cost of such insurance.
Lessee shall take all reasonable and necessary precautions to
prevent damage, injury, or loss of life in and around the
Demised Premises. Lessee agrees to indemnify and save Lessor
harmless from and against any and all Losses in connection
with or arising out of (a) Lessee's use of the Demised
Premises occasioned wholly or in part by any willful
misconduct or negligent act or omission of Lessee, its agents,
clients, or customers and (b) contamination (environmental or
otherwise) of the Demised Premises caused or permitted by
Lessee (other than contamination existing prior to Lessee's
occupancy of the Demised Premises). In case Lessor shall,
without material fault on its part, be made a party to any
litigation commenced by or against Lessee, Lessee shall
protect and hold Lessor harmless and shall pay all costs,
expenses and reasonable attorneys' fees incurred or paid by
Lessor in connection with such litigation. The aforementioned
indemnification by Lessee of Lessor shall not be effective as
to any claim arising from negligence or willful misconduct of
the Lessor (to the extent of such negligence of willful
misconduct).
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<PAGE>
EVENT OF DESTRUCTION
14. In the event of the whole or partial destruction of the
Demised Premises or of the building containing the Demised
Premises by fire, explosion, the elements or otherwise during
the term of this Lease Agreement or previous thereto as to
render the Demised Premises untenable or unfit for occupancy
in whole or in part, or should the Demised Premises be so
badly injured that the same cannot be repaired within ten days
from the occurrence to the Demised Premises of such
destruction and injury then the Lessee may, at its option,
terminate this Lease Agreement and surrender the Demised
Premises and all the Lessee's interest therein to the Lessor
as of the date of termination, and shall pay rent only to the
time of such event of destruction.
Should the Demised Premises be rendered untenable and unfit
for occupancy in whole or in part, but yet be repairable
within ten days from the happening of such injury, the Lessor
may enter and repair the same, and the rent shall not accrue
after such injury or while repairs are being made, but shall
recommence immediately after such repairs shall be completed;
provided such repairs are completed within the ten days. But
if the Demised Premises shall be so slightly injured as not to
be rendered untenable and unfit for occupancy in whole or in
part in the opinion of the Lessee, then the Lessor agrees to
repair the same with reasonable promptness and in that case
the rent accrued and accruing shall not cease. Nothing in this
clause, however, shall be construed as requiring the Lessor to
repair the Demised Premises in the event of their whole or
partial destruction. However, if the Lessor either does not
repair within the appropriate time limits or states his
intention not to repair, then the Lessee's rights shall be the
same as though the Demised Premises were injured beyond
repair.
In any event if the Lessor is unable to make repairs of such
damage or destruction within ten days of the occurrence of
such an event the Lessee may terminate the lease for other
than default (unless such damage or destruction was the result
of the willful misconduct or negligence of Lessor, its agents,
clients, or customers, in which case the termination shall be
deemed one for default) by written notice to the Lessor
without any further obligations hereunder from the date of the
occurrence of such destruction.
OBSERVATION OF LAWS
15. Lessee agrees to observe and comply with all laws, ordinances,
rules, and regulations of the Federal, State, County and
Municipal authorities applicable to the Demised Premises.
Lessee agrees not to do or permit anything to be done in the
Demised Premises or the building in which the Demised Premises
exist, or keep anything therein which would obstruct or
conflict with the regulations of the Fire Department.
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<PAGE>
SERVICES AND UTILITIES
16. Services and utilities furnished to the Demised Premises
UTILITIES shall be provided and paid for as follows:
<TABLE>
<CAPTION>
BY LESSEE ITEM BY LESSOR
--------- ---- ---------
<S> <C> <C>
c Water & sewer charges
-------- -----------------
c Electric, fuel oil, and/or gas
-------- -----------------
c Plumbing mechanical and maintenance
-------- -----------------
c Heating mechanical maintenance
-------- -----------------
c Air conditioning mechanical &
maintenance
-------- -----------------
c Interior building maintenance
-------- -----------------
c Cleaning of the building exterior
entryways
-------- -----------------
c Dock equipment, Dock Levelers,
Overhead Doors
-------- -----------------
b Lease payment to the IDB Huntsville
-------- -----------------
b,d,e Real estate taxes
-------- -----------------
c Trash removal Janitorial service
-------- -----------------
c Any security above "normally" locked
doors
-------- -----------------
c Lawn care & landscaping maintenance
-------- -----------------
c Driveway, parking lot & sidewalk
maintenance
-------- -----------------
c Structural maintenance and replacement a
(building only)
-------- -----------------
b*, c* Roof maintenance and replacement
-------- -----------------
c Fire alarm and Fire Sprinklers
maintenance and inspections
-------- -----------------
c Fire extinguishers, installation &
service
-------- -----------------
c Lessee's signage, per code
-------- -----------------
b Building Insurance
-------- -----------------
</TABLE>
- - Roof maintenance and replacement as per Exhibit B. After the completion of
the re-roofing of the original structure, Lessee shall be responsible for
roof maintenance of the original structure provided that Lessee is
permitted to act
7
<PAGE>
under the warranty given to Lessor by the roofing contractor. Lessee shall
be responsible for roof maintenance of the annex structure from the start
of the Lease Agreement.
In each instance, the following key indicates how the cost of such services will
be paid by Lessee:
(a) Included in the annual rent amount;
(b) Actual amount charged, metered amounts or pro rated on square footage
amounts to be paid by Lessee to Lessor within thirty days of receipt
of written notice of a request to be reimbursed by the Lessor;
necessary records to support the amounts will be kept by the Lessor
and copies made available to Lessee upon request; Lessee may require
such records prior to payment;
(c) Actual cost of services or metered amounts to be paid by Lessee to the
provider of the service (e.g., the utility company or contractor).
(d) To be prorated based upon square footage ratio of Lessee's area to the
entire metered area or total building area as applicable.
Reimbursement will be made the same as (b) above.
(e) If at any time which the Lessee is obligated to pay the ad valorem
taxes as provided above and if Lessee shall at any time object to any
assessment of taxes as being excessive or otherwise unjust, Lessee
shall have the right, but not the obligation, to contest, at its
expense, said tax assessment in the manner provided by law. In any
proceeding or action to contest any such assessment, Lessor shall
cooperate in such efforts and assist Lessee in any manner reasonably
requested, including making available to Lessee detailed information
with respect to the Leased Premises. All of such proceedings shall be
under the direct control of Lessee and its counsel and, to the extent
that Lessor shall incur costs or expenses in conjunction therewith;
such reasonable actual costs or expenses shall be reimbursable upon
Lessor's submitting to Lessee its statement, subject to Lessee's audit
and approval, not more frequently than quarterly. Any tax savings
resulting from any such proceeding shall belong to and be retained by
Lessee if they had been paid or pre-paid by Lessee.
Whenever the Lessee is required to pay ad valorem taxes on the Leased
Premises, Lessee shall pay said taxes to Lessor at least thirty (30)
days prior to the time said taxes are payable by Lessor to the proper
taxing authority. Lessee will be charged for ad valorem real estate
taxes for the term of this Lease Agreement (partial years to be
prorated accordingly).
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<PAGE>
If lease termination is other than December 31 of any given year,
prorated ad valorem taxed will be due to Lessor at least thirty (30)
days prior to lease termination.
INTERRUPTION OF SERVICES
17. Notwithstanding anything contained herein to the contrary, Lessee
shall have the right upon written notification to the Lessor to
terminate this Lease Agreement for default if any stoppage in any of
the services listed in the immediately preceding paragraph as being
provided by the Lessor continues for twenty days for whatever reason.
HOLDING OVER BY LESSEE
18. Nothing contained herein shall constitute the consent of Lessor to the
holding over of Lessee after the expiration or earlier termination of
this Lease Agreement.
However, if Lessee shall for any reason remain in possession of any of
the Demised Premises after the expiration or earlier termination of
the Term hereof, except as specifically provided, such possession
shall be as a month-to-month Tenancy during which time Lessee shall
pay as rental, rent on the first day of each month at a rate equal to
one-twelfth the amount of annual rent payable monthly during the prior
year of the term of this Lease Agreement or the option rate, whichever
is higher. Unless evidenced otherwise in writing as the exercise of an
option stated herein or as a modification to this Lease Agreement, in
no event shall any holding over by the Lessee be construed as creating
any new tenancy other than a month to month tenancy.
CARE OF PREMISES
19. The Lessee agrees that it will take good care of the Demised Premises,
fixtures and appurtenances, and suffer no waste or injury, that it
will make all repairs to the Demised Premises, fixtures and
appurtenances necessitated by the fault of the Lessee, its agents,
employees or guests.
REPAIRS
20. As outlined in section 16, the Lessor agrees to make such repairs as
may be necessary to keep the Demised Premises and appurtenances in
good order and condition within a reasonable time after it knows or
should know of the need of such repairs; provided, however, when such
repairs are necessitated by the fault of the Lessee, its agents,
employees or guests, Lessee shall reimburse Lessor for its
9
<PAGE>
reasonable and actual out-of pocket expenses expended in making such
repairs plus 10% overhead (but excluding profit). Lessor shall make
available to Lessee copies of any and all records necessary to support
the costs levied against Lessee under this clause for which
reimbursement is being sought.
RESERVED PARKING
21. Lessor has provided Lessee with an "as built" civil survey which shows
the paved areas of the Demised Premises. Lessee may stripe the parking
in any manner it deems necessary. Nothing herein requires Lessor to
provide Lessee with an additional paved area.
IMPROVEMENTS
22. The Lessor and Lessee have agreed as to the extent of improvements to
be made to the Demised Premises, and the work will proceed in order to
meet the commitments herein provided. Such work to be completed by
Lessor is described in Exhibit B to this Lease Agreement. The parties
agree to cooperate in order for the work to proceed to be completed on
a timely basis. Should work beyond that required by Exhibit B be
required by Lessee, it shall be described in Exhibit C, and performed
and paid for by Lessee. Lessor hereby consents to all Alterations
denoted in Exhibit C.
NOTICES
23. Formal notices or communications pertaining to this Lease Agreement
shall be deemed to have been duly given if personally provided to the
other party in writing or if sent to the other by U.S. mail, or an
independent delivery service, postage and other costs prepaid. Until
otherwise specified in writing, the addresses and telephone numbers of
the parties hereto for the purpose of any such notice or
communications are:
LESSEE: LESSOR:
------- -------
BENCHMARK ELECTRONICS HUNTSVILLE INC. INDUSTRIAL PROPERTIES
------------------------------------- ---------------------
4807 BRADFORD DRIVE OF THE SOUTH
------------------- ------------
HUNTSVILLE, AL 35805 2903 WALL TRIANA HWY., #7
-------------------- -------------------------
_______________________ HUNTSVILLE, AL 35824
--------------------
Attn: PLANT MANAGER Attn: CHARLENE B. GRAHAM
------------------- -------------------
Telephone: (256) 722-6000 Telephone: (256) 461-7482
---------------- ----------------
Fax: (256) 722-7428 Fax: (256) 464-0193
------------------ ------------------
With a copy to the attention of Legal
Counsel at the same address
10
<PAGE>
SUBORDINATION TO MORTGAGES AND DEEDS OF TRUST
24. This Lease Agreement is subject and is hereby subordinated to all
present mortgages, deeds of trust and other encumbrances affecting the
Demised Premises or the property of which said premises are a part.
The Lessor agrees to cause the mortgagee to provide to the Lessee, if
requested, in recordable form, an agreement not to disturb Lessee's
right in or possession of the premises so long as Lessee is not in
default hereunder, in the event this Lease Agreement is subordinated
to mortgage deeds of trust or other encumbrances and the subordination
of this Lease Agreement is conditioned upon the Lessee receiving such
non-disturbance agreement from the mortgagee. Lessor represents that
the only encumbrance on the Demised Premises is a mortgage from
Southtrust Bank and agrees to provide Lessee with a nondisturbance
agreement signed by Southtrust Bank in substantially the form attached
hereto as Exhibit D.
LEASE BINDING ON HEIRS, SUCCESSORS, ETC.
25. All of the terms, covenants, and conditions of this Lease Agreement
shall inure to the benefit of and be binding upon the respective
heirs, executors, administrators, successors and assigns of the
parties hereto.
EMINENT DOMAIN, CONDEMNATION
26. If the entire property or any material part thereof wherein the
Demised Premises are located shall be taken by public or quasi-public
authority under any power of eminent domain or condemnation, this
Lease Agreement shall forthwith terminate and the Lessee shall have
the right through the Lessor to a claim for such taking, limited only
to loss or damage to Lessee's trade fixtures or removable personal
property, moving expenses, unamortized capital expenses and increased
rents.
A "material part" of the property is defined as taking which could
interfere with the Lessee's continued enjoyment and utilization of the
premises as described herein.
SEVERABILITY
27. Each covenant and agreement in this Lease Agreement shall for all
purposes be construed to be a separate and independent covenant or
agreement. If any provision in this Lease Agreement or the application
thereof shall to any extent be invalid, illegal or otherwise
unenforceable, the remainder of this Lease Agreement, and the
application of such provision other than as invalid, illegal or
unenforceable, shall not be affected thereby; and such provisions in
this Lease Agreement shall be valid and enforceable to the fullest
extent permitted by law.
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<PAGE>
ADDITIONAL SIGNS
28. Lessor hereby grants Lessee the right to install whatever signage it
desires provided that such signage complies with all applicable laws
(including zoning ordinances). During the last two months of the Lease
term, Lessor may install "For Rent" or "For Sale" signs as necessary
provided that the placement of the signs does not interfere with the
placement of Lessee's signs.
LESSOR'S RIGHT TO ENTRY
29. Lessor and Lessor's agents may enter the Demised Premises for the
following purposes only: to make repairs, alterations, or improvements
necessary under the terms of this Lease Agreement; to perform Lessor's
covenants as set forth in this Lease Agreement; and, during the last
two months of the Lease Term, to show the Demised Premises to
prospective tenants. Such entry shall not be so frequent or of such a
type as to disturb Lessee's peaceful enjoyment of the Leased Premises.
Such entry shall only take place upon reasonable notice to and consent
of Lessee; consent shall not be unreasonably withheld. If Lessor or
its agent reasonably believes that an emergency exists which requires
immediate entry, such entry may be made without Lessee's consent
provided that Lessor has made reasonable attempts to contact Lessee
prior to such entry; Lessor shall so inform Lessee of such entry at
the earliest practicable time afterwards. In the event Lessor desires
to enter the Demised Premises in order to inspect the Demised
Premises, Lessor shall give Lessee at least 72 hours' prior written
notice. All persons who enter the Demised Premises at Lessor's request
must first obtain clearance from Lessee before entry (which Lessor
acknowledges will require it to sign Lessee's standard nondisclosure
agreement).
Notwithstanding anything in this Lease Agreement to the contrary, upon
any entry by Lessor or its duly authorized agents, servants, or
employees at any time during the Lease Term, such entry shall conform
to Lessee's security requirements as may be required by Lessee, the
federal government or any agency thereof, or any of Lessee's clients.
LESSEE'S ALTERATIONS, IMPROVEMENTS, OR ADDITIONS
30. Any alterations, improvements, or additions to the Demised Premises in
the form of fixtures to the Demised Premises (collectively referred to
as "Alterations") which cannot be removed without material damage to
the Demised Premises shall remain upon the Demised Premises at the
expiration of this Lease Agreement and shall become the property of
Lessor; provided however that Lessee shall have the right to remove at
the expiry of the Lease Agreement (i) any of Lessee's machinery,
equipment or fixtures which can be removed without material damage
12
<PAGE>
to the Demised Premises and (ii) any Alterations for which Lessee has
received prior written consent to remove. Lessee shall repair any
damage caused by such removal and restore the Demised Premises to
substantially the same condition in which it existed prior to the time
that any such Alterations were made.
Lessee shall not, without on each occasion first obtaining Lessor's
prior written consent (which shall not be unreasonably refused), make
any Alterations to the Demised Premises, except that Lessee may,
without the consent of the Lessor but with prior written notice to
Lessor, make minor improvements to the interior of the Demised Premises
provided that they do not impair the structural strength, operation, or
value of the building of which Demised Premises are a part, or violate
any zoning, fire or building code. The cost to correct any such
violation shall be the responsibility of the Lessee.
RENEWAL OPTION
31. Provided Lessee is not in default under any of the terms of this Lease
Agreement, Lessor hereby grants to Lessee the right and option to
extend the Initial Term for three (3) successive renewal terms of three
(3) years each (each a "Renewal Term") for an aggregate additional nine
(9) years, to begin upon the expiration of the Initial Term or the
preceding Renewal Term, as applicable. Lessee's exercise of each such
option shall be accomplished by delivering to Landlord written notice
of Lessee's election to renew no later than ninety (90) days prior to
the expiration of the preceding term. All of the other terms,
provisions and covenants of this Lease shall apply to the Renewal
Terms, including the rental adjustment set forth in Section 3.
LESSEE'S DEFAULT
32. The Lessee shall be considered in default of this Lease Agreement upon
failure to pay when due the rent or any other sum required by the
terms of this Lease; the failure to perform any material term,
covenant, or condition of this Lease Agreement; the commencement of
any action or proceeding for the dissolution, liquidation, or
reorganization under the Bankruptcy Act, of Lessee, or for the
appointment of a receiver or trustee of the Lessee's property; the
making of any assignment for the benefit of creditors by Lessee; the
suspension of business; or the abandonment of the Demised Premises by
the Lessee. In each case, Lessee shall only be in default if the
Lessee is given written notice by Lessor of the specific grounds for
the default termination and twenty business days from receipt of such
notice to correct such default and (i) Lessee fails to do so or (ii)
if the default is of the nature that it cannot be completely remedied
within such period, Lessee begins the correction of the default within
such twenty days and thereafter proceeds with reasonable diligence and
in good faith to effect the remedy as soon as practicable.
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<PAGE>
LESSOR'S DEFAULT
33. The Lessor shall be considered in default of this Lease Agreement upon
the failure to perform any material term, covenant, or condition of
this Lease Agreement; the commencement of any action or proceeding for
the dissolution, liquidation, or reorganization under the Bankruptcy
Act, of Lessor, or for the appointment of a receiver or trustee of the
Lessor's property; the making of any assignment for the benefit of
creditors by Lessor; the suspension of business; or any other reason
provided for herein. In each case, Lessor shall only be in default if
the Lessor is given written notice by Lessee of the specific grounds
for the default termination and twenty business days from receipt of
such notice to correct such default and (i) Lessor fails to do so or
(ii) if the default is of the nature that it cannot be completely
remedied within such period, Lessor begins the correction of the
default within such twenty days and thereafter proceeds with
reasonable diligence and in good faith to effect the remedy as soon as
practicable.
REMEDIES UPON DEFAULT
34. Upon the happening of any Lessee event of default, Lessor, if Lessor
shall elect, may (1) collect each installment of rental hereunder as
and when the same matures and this Agreement shall remain in effect
except that the Lessee shall not be allowed to continue to possess the
Demised Premises and the Lessor shall be free to lease the Demised
Premises to a third party, or (2) terminate the term of this Agreement
without further liability to Lessee hereunder, or (3) terminate
Lessee's right to possession and occupancy of the Demised Premises
without terminating the term of this Agreement, and in the event
Lessor shall exercise such right of election the same shall be
effective as of the date of written notice of Lessor's election given
by the latter to Lessee at any time after the date of such event of
default. Upon any termination of the term hereof, whether by lapse of
time or otherwise, or upon any termination of Lessee's right to
possession or occupancy of the Demised Premises without terminating
the term thereof, Lessee shall promptly surrender possession and
vacate the Demised Premises and deliver possession thereof to Lessor.
If Lessor shall elect to terminate Lessee's right to possession only,
without terminating the term of this Agreement, Lessor at Lessor's
option may enter onto the Demised Premises, remove Lessee's property
and other evidence of tenancy and take and hold possession thereof
without such entry and possession terminating the term of this
Agreement or otherwise releasing Lessee in whole or in part from
Lessee's obligation to pay the rent herein reserved for the full term
hereof and in such case Lessee shall be liable for the difference in
the rent received by Lessor and the rent due under his agreement for
the remainder of said term. Upon and after entry into possession
without
14
<PAGE>
termination of the term hereof, Lessor shall use reasonable efforts to
relet the Demised Premises or any part thereof for the account of
Lessee to any person, firm or corporation other than Lessee for such
rent, for such time, and upon such terms as Lessor in Lessor's
reasonable discretion shall determine or if Lessor chooses, Lessor may
operate the Demised Premises for its own account holding the Lessee
liable for the difference between the rental described herein and the
fair market rental of the Demised Premises at the time of the event of
default. The Lessee agrees to pay Lessor, or on Lessor's behalf, a
reasonable attorney's fee in the event Lessor employs an attorney to
collect any amounts due hereunder by Lessee, or to protect the interest
of Lessor in the event the Lessee is adjudged bankrupt, or legal
process is levied upon the goods, furniture, effects or personal
property of the Lessee upon the said Demised Premises, or in the event
the Lessee violated any of the terms, conditions, or covenants on the
part of the Lessee herein contained. Notwithstanding anything to the
contrary herein contained, (x) Lessor shall use commercially reasonable
efforts to mitigate its damages and (y) Lessor's damages shall be
reduced to the extent they could have been mitigated through the
exercise of commercially reasonable efforts and to the extent they are
duplicative and (z) Lessor shall not be entitled to any consequential,
incidental or special damages.
34A. Upon the happening of any Lessor event of default that results in the
Demised Premises being untenantable, Lessee, if Lessee shall elect may
(1) terminate the Lease in which case Lessee shall immediately
surrender possession of the Demised Premises to Lessor and shall be
entitled to recover from Lessor all actual damages incurred by Lessee
by reason of Lessor's default, including (a) the difference between
the rent Lessee would have paid under the Lease and the rent Lessee is
obligated to pay under any lease entered to replace this Lease that is
for comparable space and located in an area comparable to the area
surrounding the Demised Premises for the remainder of the current term
only and not for any additional options; (b) all reasonable expenses
incurred in vacating the premises, searching for a new facility,
entering into a new lease, and moving into a new facility; and (c) any
other amount necessary to compensate Lessee for all the actual damages
proximately caused by Lessor's failure to perform its obligations
under the Lease or which the ordinary course of things would be likely
to result therefrom; (2) maintain its right to possession, in which
case this Lease shall continue in effect and Lessee shall have the
right to remedy any Lessor's default and deduct the cost of remedying
any such default from any rent due. Notwithstanding anything to the
contrary herein contained, (x) Lessee shall use commercially
reasonable efforts to mitigate its damages and (y) Lessee's damages
shall be reduced to the extent they could have been mitigated through
the exercise of commercially reasonable efforts and to the extent they
are duplicative and (z) Lessee shall not be entitled to any
consequential, incidental or special damages. Alternatively, Lessee
shall have the right to remedy Lessor's breach at its expense and to
invoice Lessor for the cost of any repairs made. The Lessor agrees to
pay
15
<PAGE>
Lessee a reasonable attorney's fee in the event Lessee employs an
attorney to collect any amounts due hereunder by Lessee, or to protect
the interest of Lessee in the event the Lessor is adjudged bankrupt or
in the event the Lessor violated any of the terms, conditions, or
covenants on the part of the Lessor herein contained. Upon the
happening of any other Lessor event of default, the Lessee shall have
all the rights and remedies provided by the law of the State of
Alabama.
MECHANICS' LIENS
35. In the event that any mechanics' lien is filed against the Demised
Premises as a result of alterations, additions or improvements made by
the Lessee, the Lessor shall have the option, if the Lessee shall be
unable to procure effective cancellation, bonding or discharge of the
lien within 30 days following written notice of the existence of such
condition, to take such steps and pay such monies as may be necessary
to obtain an effective cancellation or discharge of such notice or
claim, in which event such monies as shall be expended by the Lessor
shall be considered additional rent hereunder and shall be due and
payable on the first day of the next month succeeding such payment by
the Lessor.
ENVIRONMENTAL
36. Lessor warrants and represents to Lessee that: (a) Lessor, its agents,
employees, representatives, tenants, and (to the best of its knowledge
as indicated in the Phase I and Phase II environmental studies dated
March 10, 2000 and March 14, 2000 and the environmental study provided
to Lessor by Intergraph Corporation in February, 2000) its
predecessors in interest in the Premises did not discharge, release,
or dispose of, in any form, any hazardous material or substance into
or onto the Premises and that no condition exists in or on the
Premises that may result in any violation of any federal, state or
local laws, regulations or ordinances relating to the protection of
the environment or the public health and welfare (collectively
hereinafter called "Environmental Laws"); and (b) Lessor has no
liability and there are no outstanding claims against Lessor for the
clean up of any hazardous material Or substance deposited in the
environment, either directly on the premises or elsewhere, that
resulted from ownership of the Premises.
Lessee warrants and represents to Lessor that (a) Lessee, its agents,
employees, representatives and sublessees, if any, will not discharge,
release, or dispose of in any form any hazardous materials or
substances into or onto the Premises and that Lessee, will not create,
or permit to be created, any condition in or on the Premises that may
result in any violation of any environmental laws; and (b) Lessee will
not allow any hazardous material or substance to exist or be stored,
located, discharged, possessed, managed, processed or otherwise handled
on the Premises except those customarily used in the conduct of
Lessee's normal business activities, and that Lessee shall comply with
all Environmental Laws
16
<PAGE>
affecting the Premises; and (c) Lessee shall immediately notify Lessor
should Lessee become aware of (i) any hazardous material or substance
or any other environmental problem or liability with respect to the
Premises, (ii) any lien, action or notice related to any such
environmental problem or liability, or (iii) any material or substance
or any other problem with respect to or arising out of or in connection
with the premises.
Lessee acknowledges the receipt of a recent Phase I and Phase II
environmental study by Qore Property Sciences, dated March 10, 2000 and
March 14, 2000 respectively, and the receipt of a copy of the
environmental study provided by the Intergraph Corporation to
Industrial Properties in February, 2000. These reports will be used to
document the environmental status of the facilities upon acceptance and
beginning occupancy by Lessee. Lessee Agrees to provide a new Phase I
at least thirty (30) days prior to vacating and to correct or address
any environmental concerns prior to lease termination.
COMMISSION AGREEMENT
37. An agreed to and acknowledged copy of the Commission Agreement between
Chase Commercial Real Estate Services, Inc., Lessor and Lessee is
attached as Exhibit E and incorporated by reference into this Lease
Agreement.
GENERAL
38. a. This Lease Agreement shall be governed by and under the laws
of the State of ALABAMA.
b. Each party acknowledges that it has read this Lease Agreement,
understands it, and agrees to be bound by its terms, and
further agrees that this is the complete and exclusive
statement of the Lease Agreement between the parties, which
supersedes and merges all prior proposals, understandings, and
all other agreements, oral or written, between the parties
relating to this Lease Agreement. Any change in this Lease
Agreement must be made in writing and signed by authorized
representatives of both the Lessee and the Lessor.
c. If either party cannot perform any or all of its respective
obligations under this Lease Agreement because of the
occurrence of any event which is beyond its reasonable control
and not caused by such party or its agents or employees, then
the non-performing party shall (i) notify the other party,
(ii) take reasonable steps to resume performance as soon as
possible, and (iii) not be considered in breach during the
period performance is beyond
17
<PAGE>
the party's reasonable control.
d. The failure of either party at any time to require performance
by the other party of any provision hereof shall not affect in
any way the full right to require such performance at any time
thereafter. The waiver by either party of a portion of a
provision herein shall not be taken or held by the other party
to be a waiver of the provision itself unless such a waiver
shall be express and in writing.
e. In the event of any inconsistency between its component parts,
this Lease Agreement shall be construed with the following
order of precedence:
(1) The Basic Lease Agreement (This document)
(2) Exhibit A
(3) Exhibit B
(4) Exhibits C and D
(5) Other Exhibits (if any)
f. The titles of the clauses in this Lease Agreement, including
all Exhibits thereto, shall be read as references only and
shall not be read as affecting, contradicting, negating, or
explaining the meaning or interpretation of this Lease
Agreement.
g. Each party represents and warrants that it has the right and
authority to enter into this Lease Agreement.
h. Unless otherwise specifically noted, "days" shall mean
calendar days.
18
<PAGE>
i. In no event shall either party be liable to the other for
indirect, consequential, incidental or special damages, even
if it has been made aware of the possibility of such.
IN WITNESS WHEREOF, the parties hereto have signed this Agent as of
the day and year first written above.
LESSEE LESSOR
BENCHMARK ELECTRONICS INDUSTRIAL PROPERTIES
HUNTSVILLE INC. OF THE SOUTH
4807 Bradford Drive 2903 Wall Triana Hwy.Suite #7
Huntsville, AL 35805 Huntsville, AL 35824
By: /s/ DONALD E. NIGBOR By:/s/ CHARLENE GRAHAM
----------------------- ---------------------
Donald E. Nigbor, President Charlene Graham
Managing Partner
19
<PAGE>
EXHIBIT A
DESCRIPTION OF DEMISED PREMISES
[THIS IS TO BE PROVIDED BY LESSOR]
20
<PAGE>
EXHIBIT B
ALTERATIONS TO BE MADE BY LESSOR
The following Alterations shall be made by Lessor on or before the
date(s) set forth below at Lessor's sole cost and expense and, except as
provided in Section (3), without recovery from Lessee through increased rent or
otherwise:
1. Fully fire sprinkle the approximately 44,800 s.f. Annex
building with class III wet fire sprinkler system. Work to be
completed within 30 days of the execution of the Lease
Agreement.
2. Pressure wash, paint and caulk the exterior of the building
in a color mutually acceptable to Lessor and Lessee. Work to
be completed within 30 days from notice to proceed to paint
contractor.
3. Remove old air conditioning units from roof, cap roof curbs
and re-roof over existing Trocal roof material with new
Firestone EDPM material and insulation. Existing ballasts
will be re-used to anchor membrance to the building. Lessee
has reviewed and hereby approves the attached quotes from
mechanical and roofing contractor in the total amount of
$232,267.00.
Lessee agrees to pay for $30,000 of this cost within ten (10)
days of invoice and upon delivery of roofing material to the
site.
Lessee has read the attached proposed sample warranty from
Firestone and agrees to accept the maintenance of the roof of
the entire facility per Section 16 upon completion of the
re-roofing of the original structure by the roofing contractor
Lessor represents and warrants that any alterations will be done in a
professional manner and will comply with applicable federal, state and
local laws.
21
<PAGE>
EXHIBIT C
ALTERATIONS TO BE MADE BY LESSEE
Benchmark will install, at its own expense, the following items
Compressor System
Card Reader System
Power Protection System
Vacuum Pump System
PA System
Camera System
Time Card System
Kitchen Facility
ESD Flooring
In addition, Tenant will replace the lighting in the old portion of
the building with lighting sufficient for its needs.
Lessor consents to these Alterations and agrees that Tenant shall have
the right to remove these Alterations in accordance with this Lease Agreement
(i.e., provided that Tenant restore the building to its condition at the
inception of this Lease, normal wear and tear excluded).
24
<PAGE>
EXHIBIT D
FORM OF NON-DISTURBANCE AGREEMENT
WHEREAS, SOUTHTRUST BANK, a national banking association with
principal offices in __________________, Alabama, (hereinafter referred to as
"Mortgagee") is the Holder of the Mortgage issued under and pursuant to that
certain Mortgage dated as of March_, 2000, between Industrial Properties of the
South, an Alabama corporation, and SouthTrust Bank, an Alabama public
corporation (the "Mortgagee"), of record in Book ____ page_, Office of the Judge
of Probate of Madison County, Alabama (the "Mortgage"; capitalized terms used
but not otherwise defined shall have the same meanings as in the Mortgage); and
WHEREAS, the Mortgagor, Industrial Properties of the South, will lease
or has leased a portion of the Project to Benchmark Electronics Huntsville Inc.
(the "Tenant") pursuant to a Lease Agreement dated June 1, 2000 by and between
the Mortgagor and the Tenant (the "Lease"), a copy of which is attached hereto
as Exhibit "A";
WHEREAS, the Lease is subsequent in time and subordinate to the liens,
security titles and security interests of the mortgage; and
WHEREAS, Tenant has requested the assurance of Mortgagee that Tenant's
possession under the Lease will not be disturbed as a result of the occurrence
of certain events pursuant to or in connection with the mortgage.
NOW, THEREFORE, FOR VALUE RECEIVED, Mortgagee hereby agree, for
themselves and their respective successors, that Tenant's possession under the
Lease will not be disturbed by foreclosure of the Mortgage, exercise of any
power of sale thereunder, acceptance of a deed in lieu of foreclosure or
exercise of any other remedy provided in the Mortgage or any assignment of
leases in connection therewith; provided that Tenant is not in default (beyond
the expiration of any applicable cure period) in the payment of rent or other
charges pursuant to, or in the performance of any of the other terms, covenants
or conditions of, the Lease.
IN WITNESS WHEREOF, Mortgagee have caused this instrument to be
executed by their duly authorized officers on the 1st day of June, 2000.
SouthTrust Bank, Mortgagee
By:
-------------
Senior Vice President (Title)
24
<PAGE>
STATE OF ALABAMA COUNTY OF MADISON
Personally appeared before me, the undersigned, a Notary Public having
authority within the State and county aforesaid, _____________________, with
whom I am personally acquainted, and who acknowledged that he executed the
within instrument for the purposes therein contained, and who further
acknowledged that he is the/a(n) ______________________ of Southtrust Bank, a
national banking association, and is authorized by the bank to execute this
instrument on behalf of the bank in its capacity as Mortgagee.
WITNESS my hand, at office, this _____ day of ______________, 2000.
My Commission Expires:
24
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.22
<SEQUENCE>4
<FILENAME>a2043169zex-10_22.txt
<DESCRIPTION>EXHIBIT 10.22
<TEXT>
<PAGE>
Exhibit 10.22
LEASE RENEWAL AMENDMENT
Account Not. 4068689-002, 003,004, 005, 007, 008,009
010, 011,012,013,014,015, 016,017,018, 019, 020,021
THIS LEASE RENEWAL AMENDMENT dated as of SEPTEMBER 29, 2000 ("Amendment")
amends Schedule Nos. 002, O03, 004, 005,007, 008, 009, 010, 011, 012, 013,
014, 015, 016, 017, 018, 019, 020, 021 ("Schedule") to the Master Lease
Agreement dated as of July 9, 1997 ("Agreement"), such Schedule and
Agreement, as the same may have been heretofore amended or otherwise
modified, are hereinafter collectively referred to as the ("Lease") between
GENERAL ELECTRIC CAPITAL CORPORATION ("Lessor) and BENCHMARK ELECTRONICS
("Lessee"). Capitalized terms not defined herein shall have the meanings
assigned to them in the Lease.
WITNESSETH
WHEREAS, the term of the Lease is scheduled to expire on SEPTEMBER 18,
2000; SEPTEMBER 30, 2000 and NOVEMBER 24, 2000 ("Primary Term Expiration
Date"); and
WHEREAS, Lessee desires to renew the Lease pursuant to the terms set
forth herein; and
WHEREAS, Lessor is willing to consent to such renewal pursuant to the
terms set forth herein;
NOW, THEREFORE, in consideration of the above premises and the mutual
promises; contained herein, as well as other good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, agree as follows:
1. Commencing on SEPTEMBER 30, 2000 the Lease shall be renewed for an
additional period of THIRTY SIX (36) months ("Renewed Term") on and subject
to the same terms and conditions as set forth in the Lease, except as
otherwise expressly provided herein:
(a) During the Renewed Term, Lessee hereby agrees to pay to Lessor rent
in the total principal sum of FIVE MILLION NINE HUNDRED FIFTEEN THOUSAND
AND 00/100 Dollars ($5,915,000.00), plus financed upfront sales tax in the
sum of ONE HUNDRED FIFTEEN THOUSAND SEVEN HUNDRED FIVE AND 14/100 Dollars
($115,705.14) with interest thereon, from the date upon which the Renewed
Term commences through and including the last day of the Renewed Term, at a
fixed interest rate of TEN POINT FOUR percent (10.4%), to be paid in Thirty
Six (36) consecutive monthly installments of principal and interest of ONE
HUNDRED NINETY FOUR THOUSAND FORTY SIX and 67/100 Dollars ($194,046.67)
(each a "Periodic Installment") and a final installment equal to the GPO
Amount (as that term is described below). The Periodic Installments have
been calculated on the basis of a 360 day year of twelve thirty-day months.
Each Periodic Installment may, at the option of the Lessor, be calculated
and applied on the assumption that such installment would be made on its
due date. The first Periodic Installment shall be due and payable on
OCTOBER 1, 2000 and the following Periodic Installments shall be payable on
the same day of each month thereafter throughout the Renewal Term.
<PAGE>
(b) During the Renewed Term, the Stipulated Loss Value and Termination
Value of the Equipment as of the applicable calculation date shall be
equal to (i) the sum of (A) all then remaining Periodic installment
payments (which would have come due over the balance of the Renewed Term
without any termination thereof), and (B) the GPO Amount (set forth
hereinbelow), (ii) discounted to its then present value using a discount
rate equal to the one year U.S. Treasury Constant Maturity rate in effect
as of the date on which the Lease either terminates or the Casualty
occurs, as published in the Federal Reserve Statistical Release H.15
(519). Furthermore, in connection with any default or other termination
of the Lease prior to the scheduled expiration of the Renewed Term any
surplus net proceeds received by Lessor from the sale, re-lease or other
disposition of the Equipment after satisfaction of all amounts payable by
Lessee under the Lease shall be remitted to Lessee (except to the extent
as may be otherwise required by applicable law).
(c) Upon expiration of the Renewed Term, Lessee shall purchase for cash
consideration all (but not less than all) of the Equipment for an amount
equal to ONE AND 00/100 Dollar ($1.00) (the "GPO Amount"), plus all
applicable sales, use and other taxes thereon, ON AN "AS IS, WHERE IS"
BASIS WITHOUT RECOURSE TO, OR WARRANTY BY, LESSOR OF ANY KIND, NATURE OR
DESCRIPTION WHATSOEVER. All other purchase options or renewal options are
hereby deleted in their entirety.
(d) In order to secure payment and performance of Lessee's obligations
hereunder, Lessee hereby grants Lessor a security interest in (i) the
Equipment and in all goods that are or may hereafter become accessions
thereto, and (ii) all proceeds of such property, including but not
limited to insurance proceeds.
(e) Any provisions of the Lease relating to Early Termination, Purchase
Option or Terminal Rent Adjustment Clause shall be deleted in their
entirety.
2. Lessee hereby represents and warrants that all of the representations and
warranties included in the Lease (except as set forth in Article XV (b) of
the Lease) are true and correct as of the date first above written.
Except as expressly modified herein, all terms and provisions of the
Lease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
representatives to execute and deliver this Amendment as of the date first
above written,
LESSOR: LESSEE:
GENERAL ELECTRIC CAPITAL CORPORATION BENCHMARK ELECTRONICS
By: /s/ Ingrid Duffelmeyer By: /s/ Gayla Delly
--------------------------------- -------------------------------
Title: Collateral Specialist Title: Treasurer
------------------------------ ----------------------------
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.24
<SEQUENCE>5
<FILENAME>a2043169zex-10_24.txt
<DESCRIPTION>EXHIBIT 10.24
<TEXT>
<PAGE>
EXHIBIT 10.24
THIS LEASE made the day of 2001
BETWEEN
CANADA LIFE ASSURANCE (IRELAND) LIMITED having its registered office at Canada
Life House, Temple Road, Blackrock in the County of Dublin (hereinafter called
the "Lessor" which expression shall include its successors and assigns) of the
One Part
AND
BEI ELECTRONICS IRELAND LIMITED having its registered office at 1 Stokes Place,
St. Stephen's Green, Dublin 2 (hereinafter called "the Lessee" which expression
shall un1ess otherwise stated include its successors and permitted assigns) of
the Other Part.
A. DEFINITIONS
In this Lease and the Schedules hereto (save where the context
otherwise requires or implies) the following words and expressions
shall have the following meanings:-
"THE SUPERIOR LESSOR." means Industrial Development Agency (Ireland),
having its principal office at Wilton Park House, Wilton Place in the
City of Dublin and shall include its successors and assigns;
"THE SUPERIOR LEASE" means Indenture of Lease dated the ___ November
2000 and made between the Superior Lessor of the one part and the
Lessor of the other part.
"THE INDUSTRIAL ESTATE " means the lands and premises of Industrial
Development Agency (Ireland) situate at Snugborough, Blanchardstown in
the County of Dublin and known as Blanchardstown Business Park,
Blanchardstown, Dublin 15.
B. INTERPRETATION
1. The several Schedules hereto shall be deemed to be
incorporated in and to form part of these presents and the
provisions thereof shall apply and operate a though the same
were set forth ad longum herein.
2. Any reference in this Indenture to any Act shall be deemed to
include any amendment, modification or re-enactment thereof
for the time being in force
3. Any covenants in this Indenture by the Lessor or the Lessee
not to do any act or thing shall extend to his not suffering
or permitting the doing of that act or thing.
4. Any reference in this Indenture to the doing or permitting of
any act or thing by the Lessor or the Lessee shall be deemed
to include the doing or permitting of that act or thing by
the agents, workmen, servants or other employees or duly
authorized agents of the lessee.
1
<PAGE>
5. The masculine gender includes the feminine and the neuter
genders and words in the singular shall include the plural.
6. The Clause headings shall not in any way affect the
interpretation of this Lease.
7. Any reference in this lease to "IR(pound)" pounds or money
shall mean Irish Pounds or any other currency or unit of
currency that may replace the Irish Pound.
WITNESSETH as follows:-
1. DEMISE
In consideration of the rents (including any increases thereof as may
arise as hereinafter provided), covenants and conditions hereinafter
reserved and contained and on the part of the Lessee to be paid, observed
and performed the Lessor HEREBY DEMISES unto the Lessee ALL THAT AND
THOSE the premises more particularly described in the Schedule hereto
TOGETHER WITH: -
1.1 the factory and other buildings erected thereon and the Lessor's
fixtures, fittings and equipment therein or thereon hereto (all of
which said land, buildings, fixtures, fittings and equipment are
hereinafter collectively called "the demised premises") and;
1.2 full and free right in common with the Lessor and all other
persons who no have or shall hereafter have the like right at all
reasonable times to go pass and repass over the roads and
entranceways constructed or to be constructed within a period of
twenty-one years from the date hereof on the adjoining premises
coloured yellow hatched yellow and crosshatched yellow on the Plan
annexed hereto for the purpose of access to and egress from the
demised premises;
EXCEPTING AND RESERVING unto the Lessor:-
(a) the free and uninterrupted passage and running of water,
soil and effluent drainage, gas, water, oil and
electricity, steam, telephone or any other service or
supply to and from the other buildings and lands the
property of the Lessor and its tenants adjoining or near to
the. demised premises through the sewers, drains,
watercourses, conduits, pipes, wire and cables which now
are or may hereafter within the period of this Lease during
the term hereby granted be in or over, under or upon the
demised premises;
(b) at any time hereafter and from time to time full right and
liberty to execute works, services and erections and
buildings upon or to alter or rebuild any of the erections,
services and buildings erected on its
2
<PAGE>
adjoining and neighbouring lands and to use the same as it
may think fit provided that the Tenant's use and occupation
of the demised premises is not materially affected;
(c) the full and free right and liberty to the Lessor, its
servants and agents to enter after at least three working
days notice (except in the case emergency) upon the demised
premises at all reasonable times for the purpose of
connecting, laying, inspecting, repairing, cleaning,
maintaining, altering, replacing or renewing any sewer,
drain, main, pipe, wire, cable, watercourse, channel,
conduit or subway including the provision of a Water meter
and to erect, construct or lay in, over, under or across
the demised premises not built upon any sewers, drains,
main, pipes, wires, cables, poles, structures, fixtures or
other works for the drainage of or for the supply of water,
gas, electricity, oil, telephone, telex, heating, steam,
radio and television signals and other services to other
premises of the Lessor causing as little inconvenience as
possible to the Lessee and the Lessor making good any
damage as soon as practicably possible to the demised
premises hereby occasioned including a Wayleave in favour
of Bord Gais Eireann over that part of the demised premises
shown coloured green on the map annexed hereto;
(d) all rights, easements and privileges now belonging to or
enjoyed by any adjoining property;
All mines, minerals, quarries and royalties whatsoever in or under
the demised premises during the term of the demise are excepted
and reserved out of the demise.
TO HOLD the same unto the Lessor for the term of twenty years from
the 1st day of December 2000 subject to the covenants, terms and
conditions hereinafter contained YIELDING AND PAYING therefor and
thereout during each of the first five years of the said term the
yearly rent of IR(pound)398,125 (Three hundred and ninety eight
thousand one hundred and twenty five pounds) and thereafter during
each of the successive periods of five years of which the first
shall begin, on the 1st day of December 2005 a rent equal to (a)
the rent payable hereunder during the preceding period or (b) such
revised rent as may from time to time be ascertained in accordance
with the provisions in that behalf contained in Clause 3 hereof
(whichever shall be the greater) such rent to be paid by way of
standing order without any deduction in advance on the 1st day of
September, 1st day of December, 1st day of March and 1st day of
June in every year the first payment to be made on the execution
hereof and to be in respect of the period from the 1st day of
December 2000 to the 28th day of February 2001 AND ALSO YIELDING
AND PAYING on demand to the Lessor yearly and so in proportion for
every part of a year by way of further or additional rent the sum
or sums payable by the Lessee to the Lessor pursuant to the
Lessee's covenant 2.2.2 hereof AND ALSO YIELDING AND PAYING on
demand to
3
<PAGE>
The lessor yearly and so in proportion for every part of a year by
way of further or additional rent the sum or sums payable by the
Lessee to the Lessor pursuant to the Lessee's covenant 2.11
hereof.
2. LESSEE'S COVENANTS
PAY RENT
2.1 to pay the said yearly rents at the times and in the manner
aforesaid clear of al deductions and by way of standing banker's
order if required.
PAY OUTGOINGS
2.2 (a) to bear, pay and discharge all rates, taxes, assessments,
duties, charges outgoings and impositions whatsoever which
now are or during the salt term shall be charged, assessed
or imposed upon the demised premises or any part thereof
or upon the owner or occupier in respect thereof;
(b) to pay to the Lessor annually a sum or sums of money equal
to the amount which the Lessor may expend or require to
expend in effecting or procuring and maintaining or
procuring the maintenance of insurance of the demised
premises against the insured risks as defined in Claus 4
hereof to their full reinstatement cost and three years
loss of rent sue sum or sums to be paid without any
deduction in every year upon the Lessor's demand the first
payment (or a proportionate part thereof) t be made on the
execution hereof.
(c) To pay to the Lessor on demand a sum equal to one half of
the cost incurred during the term hereby granted by the
owners and occupiers or that part of the lands shown
crosshatched yellow on the Plan annexed hereto in
repairing, maintaining and renewing the said lands
PROVIDED ALWAYS that any dispute between the parties
hereto in relation to the Lessee's contribution hereunder
shall on the application of either party be determined by
a Chartered Surveyor who shall by appointed and shall act
in accordance with the manner specified in Clause 3
hereof.
PAY INTEREST
2.3 (a) If the Lessee shall fail to pay the rent hereinbefore
reserved or any other sum reserved or made payable
hereunder within 14 days of the day and in the manner
herein prescribed for the payment of same every such
unpaid rent or sum shall bear interest at the rate of 3%
per annum above the rate from time to time charged by the
Associated Banks in the Republic of Ireland at the A.A.A.
rate on overdrafts from the date on
4
<PAGE>
which the rent or other sum became due until the actual
date of payment or if there shall be no such rate the
aforesaid rent or sum shall bear interest at the rate of
12% per annum,
(b) The Lessee shall pay to the Lessor on demand all legal and
other costs charges and expenses from time to time
incurred by the Lessor in connection With the Lessee's
obligations under this Lease or the enforcement of or
discharge by the Lessee of its obligations hereunder.
COMPLY ENACTMENTS
2.4 At all times during the said term to observe and comply in all
respects with the provisions and requirements of any and every
enactment for the time being force or any orders or regulations
thereunder for the time being in force and do and execute or cause
to be done and executed all such works as under or virtue of any
such enactment or any orders or regulations thereunder for the
time being in force are or shall be properly directed or necessary
to be done or executed upon or in respect of the demised premises
or any part thereof whether by the owner, landlord, lessee, tenant
or occupier and at all times to keep the Lessor indemnified
against all claims, demands and liability in respect thereof, and
without derogating from the generality of the foregoing to comply
with the requirements of any local or other statutory authority
and the order or orders. of any Court jurisdiction and immediately
after the receipt of any notice requiring works to be carried out
by the local or Statutory Authority or by order of any Court of
competent jurisdiction, the Lessee shall send a copy thereof to
the Lessor;
COMPLY WITH FIRE REGULATIONS
2.5 At all times during the said term to comply with all the
recommendations or requirements of the appropriate authority in
relation to fire precautions whether notified or directed to the
Lessor or the Lessee and to indemnify the Lessor against any
reasonable costs or expenses in complying with any such
requirement or recommendation and not to obstruct the access to or
means of working any fire precaution or safety apparatus or
appliance for the time being installed in the demised premises;
PAINT EXTERIOR
2.6 to prime and prepare for painting and to paint with at least two
coats of good oil paint or such other paint as may be first
approved both as to quality and color by the Lessor in a proper
and workmanlike manner in every third year and in the last year of
the said term (whether determined by effluxion of time or
otherwise) all the gates, fences and outside wood, stucco and
ironwork and other outside parts of the demised premises
heretofore usually painted and any additions thereto proper to be
painted and so often as may be necessary but not
5
<PAGE>
less often than every third year and in the last year of the said
term as aforesaid in a workmanlike manner to creosote, distemper,
colour, whitewash & otherwise treat all other outside parts of the
demised premises as have usually heretofore been so treated all
such work as aforesaid to be done to the approval, of the Lessor;
PAINT INTERIOR
2.7 to prime and prepare for painting and to paint with two coats at
least of good quality paint to be first approved by the Lessor in
a workmanlike manner every fourth year and in the last year of the
said term (whether determined by effluxion of time or otherwise)
all inside wood and iron work and other inside parts of the
demised premises heretofore usually painted and any additions
thereto proper to be so painted and so often as may be necessary
but not less often than every fourth year and in the last year of
the said term as aforesaid in! a workmanlike manner to distemper,
colour, whitewash or otherwise treat such' other inside parts of
the demised premises as have usually heretofore been so treated
and on the occasion of each repainting to grain, varnish, restore
and make good all such work as aforesaid to be done to the
approval of the Lessor;
TO MAINTAIN OPEN AREAS
2.8 to keep such part of the land forming part of the demised premises
as is from time to time undeveloped and the grass, gardens and any
tress, shrubs AND hedges in proper and neat order and condition
and any ditches, streams, culverts and watercourses properly
cleared and cleaned and the banks thereof in proper repair and
condition and in particular not to deposit or permit to bb
deposited any rubbish or refuse nor without the consent in writing
of the Lessor (and then only on such parts of the lands and
subject to such conditions as the Lessor may stipulate or impose)
to store, stack or lay out any material used for. the purpose of
manufacture or otherwise on any part of the said land;
TO REPAIR
2.9 at all times during the said term TO put into good and substantial
repair and working order and condition and to repair and keep (and
in the case of fixtures, heating installations, fittings and
equipment to replace or renew as may from time to time be
necessary) the exterior and interior of the demised premises and
all additions thereto constructed or placed thereon and the
Lessor's fixtures,. fittings and equipment therein and pipes,
drains, wires, cables, meters, channels, sewers, sanitary and
water apparatus, glass, pavings, walls, fences and railings vaults
and appurtenances in good and substantial repair and working order
and condition and maintained, paved, cleansed and amended in every
respect (damage by any of the insured risks excepted PROVIDED THAT
the policy or policies of insurance shall not have been vitiated
or payment of the policy monies withheld or refused in whole or in
part by reason of any act,
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neglect or default of the Lessee or the servants, agents,
licensees, or invitees of the Lessee);
TO COMPLY WITH FACTORIES ACT
2.10 Without prejudice to the generality of Clause 2.4 hereof, in all
respects to comply with all the provisions of the Factories Act,
Local Government (Planning and Development) Acts, the Building
Control Act and the Public Health Acts and of all regulations
thereunder and with any other obligations imposed by law in regard
to the demised premises and carrying on of the trade. or business
for the time being carried on upon the demised premises and to
indemnify the Lessor against all liability in respect of any
contraventions by the Lessee of any such requirements;
TO PAY SERVICE CHARGE
2.11 To pay to the Lessor annually a sum or sums of money equal to the
amount which the Lessor shall pay to the Superior Lessor pursuant
to Clause 1(4) of the Superior Lease in relation to the costs and
expenses incurred by the Superior Lessor of all necessary
maintenance, repair and upkeep (including operating security and
insurance costs where applicable) of the common areas, common
drainage and water services and public lighting in the Industrial
Estate upon which the demised premises are situated.
TO PERMIT INSPECTION
2.12 to permit the Lessor or its duly authorised agents and all proper
parties at all reasonable times to enter the demised premises and
examine the state of repair and condition thereof (and in
particular for all necessary purposes of providing, inspecting,
maintaining and repairing the drains, sewers and water mama,
electricity, gas, telephone and similar services) and to check and
take inventories of the Lessors fixtures, fittings and equipment
therein and to repair and make good all defects, decays and wants
of repair thereto of which notice in writing shall be given by the
Lessor to the Lessee and for which the Lessee may be liable
hereunder within three calender months after the giving of such
notice PROVIDED that in case of default by the Lessee the Lessor
may make good such defects, decays and wants of repair and the
cost of same shall be repayable by the Lessee to the Lessor on
demand;
TO PERMIT ENTRY
2.13 to permit the Lessor and all persons authorised by it and its
respective surveyors, agents and workmen upon prior reasonable
notice at all reasonable and convenient times in the daytime or at
any time in the case of emergency to enter on the demised premises
or any part thereof for the purpose of repairing
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building on any adjoining premises as occasion shall require and
for the purpose of making, repairing, maintaining, cleansing,
lighting and keeping in order and good condition all ways, roads,
sewers, drains, pipes, gutters, watercourses, ditches, culverts,
fences, hedges or other conveniences which, shall belong to or be
used for the demised premises in common with other premises and
also for the purpose of laying down, maintaining, repairing and
testing drainage, gas and water pipes and electric wires or cables
or for other similar purposes the Lessor or such persons aforesaid
making good any damage, occasioned thereby to the demised
premises;
NOT TO MAKE ALTERATIONS
2.14 (a) not to make any alterations or additions to the demised
premises or erect any new buildings thereon without the
prior written consent of the Lessor and the approval of
the Lessor to the plans and specifications such consent
and approval not to be unreasonably withheld or delayed
thereof and if such consent and approval is given to make
such alterations or additions in conformity with such
plans and specifications and to the approval of the Lessor
and upon such terms as the Lessor (acting reasonably) may
consider appropriate;
(b) if the premises are altered (whether pursuant to a consent
given under Clause 2.14(a) hereof or otherwise) the Lessee
will, if so required by the Lessor, on the termination of
this Lease forthwith restore the, demised premises at the
Lessee's own expense to their original condition at the
date of this Lease and will make good all damage and want
repair and decoration caused by the original alteration or
restoration work;
PERMITTED USER
2.15 not to use the demised premises other than for the purpose of
manufacturing light industrial or research and development and
ancillary purposes or as centre for internationally traded
services and not to use the demised premises or suffer or permit
the same to be used for any other purpose whatsoever except with
the previous written consent of the Lessor;
NOT TO CAUSE A NUISANCE
2.16 not to do or permit to be done upon or in connection with the
demised premises or any part thereof any act, matter or thing
whatsoever which may be or grow to be a nuisance or cause damage
to any neighbouring, adjoining or adjacent property or the owners
or occupiers thereof and to pay to the Lessor all reasonable and
proper costs, charges and expenses which may be incurred by the
Lessor in abating a nuisance in respect of the demised premises
and to execute all such works as may be necessary for abating such
a nuisance in
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obedience of a notice lawfully served by a local or public
authority or pursuant to any Court Order;
NOT TO EXHIBIT SIGNS
2.17 not to exhibit on any part of the undeveloped or unbuilt upon
lands comprised in demised premises or on the outer walls or roofs
of any building or structure thereon any signboard, placard,
lettering or lighting of any kind except such as may previously
have been approved by the Lessor in writing and in default or on
the Lessor taking objection the Lessor may enter and remove the
same at the lessee's cost PROVIDED however that the Lessee shall
be entitled to erect a sign displaying the name of the Lessee in
such position and of such for4 colour and design as may be first
approved by the Lessor such approval not to be unreasonably
withheld;
CONSUME SMOKE
2.18 to ensure that every furnace employed in the working of engines by
steam other motive power and every other furnace employed in any
building or erection on the demised premises is constructed so as
substantially to consume or burn the smoke arising therefrom and
not to use or suffer to be used negligently any such furnace so
that the smoke arising therefrom is not substantially consumed or
burnt and not to cause or permit any grit or noxious or offensive
effluvia to be emitted from any engine, statutory furnace, chimney
or other apparatus on the demised premises without using the best
practicable means for preventing or counteracting such emission
and in all provisions of all relevant statutes and aspects to
comply with the regulations and with the requirements of any
notice of the local or other competent authority served
thereunder;
NOT TO DAMAGE DRAINS
2.19 to take such measures as may be necessary to ensure that any
effluent discharged into the drains or sewers which belong to or
are used for the demised premises in common with other premises
will not be corrosive or in any way harmful to the said is drains
or sewers or cause any obstruction or deposit therein;
NOT TO POLLUTE WATERCOUIRSES
2.20 not to discharge or allow to be discharged any solid matter from
the demised premises into the drains or sewers as aforesaid nor to
discharge or allow to be discharged therein any fluid of a
poisonous or noxious nature or of a kind calculated to or that
does in fact destroy, sicken or injure the fish or contaminate or
pollute the water of any stream or river and not to do or omit
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or allow or suffer to be done or omitted any act or thing whereby
any land or the waters of any stream or river may be polluted or
the composition thereof so, changed as to render the Lessor liable
to any action or proceedings by any person whomsoever;
NOT TO OVERLOAD
2.21 not to do or permit or bring in or upon the demised premises
anything the use of which would cause damage by vibration or
otherwise to the demised premises or any adjoining premises or
which might throw on the demised premises or any adjoining
premises any weight or strain in excess of that which such
premises are capable of bearing with due margin for safety and
particular not to overload the floors, the joists or the
electrical installations or the other services of, in or to the
demised premises nor to suspend anfr1 excessive weight from the
ceilings or walls, stanchions, joists or the structures thereof.
The Lessee shall seek professional advice at the Lessee's own
expense to ensure that there shall not be any infringement of this
covenant;
NOT TO ASSIGN
2.22 (a) not to assign, underlet, create any charge or mortgage
(whether legal or equitable charge or mortgage) over the
entirety of the demised premises or grant any Licence in
respect of the demised premises nor part with or share the
possession thereof without the consent of the Lessor such
consent not to be unreasonably withheld PROVIDED ALWAYS
that the Lessor shall be deemed to be acting reasonably
should it refuse to consent to the assignment or under
lease of the demised premises to any assignee or
under-lessee which shall not have given the Lessor
satisfactory proof that it can meet the obligations to pay
the rent reserved by this Lease or any reviewed rent, or
reserved by the Under Lease as the case may be and in the
case of an assignment of the Lessee's interest hereunder
shall not be able to procure execution by a surety of a
guarantee in the form of the Guarantee annexed hereto by a
surety which shall have given the Lessor satisfactory
proof of its ability to meet the obligations contained in
the said Guarantee;
(b) not to assign, sublet, part with or share possession of or
otherwise alienate part only of the demised premises;
NOTICE OF ASSIGNMENT
2.23 Within fourteen days of every assignment, assent, transfer,
under-lease, assignment of under-lease or mortgage of or relating
to the demised premises to give notice thereof in writing with
particulars thereof to the Lessor's Solicitor and produce to him
such instrument or other evidence of devolution and to pay the
Lessor's Solicitors any reasonable and proper costs incurred by
the Lessor relating thereto;
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NOT INVALIDATE INSURANCE
2.24 not to do or permit or suffer to be done anything whereby the
policy or policies of insurance on the demised premises or any
adjoining or neighbouring premises against damage by fire or other
perils may become void or voidable or whereby the rates of premium
thereon may be increased and to repay to the Lessor all sums paid
or payable by way of increased premiums and all expenses incurred
by it in or about the renewal of such policy or policies rendered
necessary by a breach of this covenant and all such payments shall
be made immediately on demand;
NOT TO STORE DANGEROUS SUBSTANCES
2.25 without prejudice to any other clause herein, not to keep or allow
to be kept on the demised premises any substance or material of a
combustible or offensive nature the keeping whereof may require a
licence of any Local or Public Authority unless the Lessee obtains
such a licence and complies with the terms and conditions thereof.
The Lessee shall inform the Lessor in writing of any application
for and of the issuing of such a licence;
PAY CONVEYANCING ACT CHARGES
2.26 to pay all reasonable and proper costs and charges and expenses
(including solicitor's costs and surveyor's fees) incurred by
the lessor for the purpose or incidental to the preparation and
service of any notice under Section 14 of the Conveyancing Act
1881 (or any statutory modification or reenactment thereof)
requiring the lessee to remedy a breach of any of the covenants
hereinbefore contained notwithstanding forfeiture for such breach
may. be avoided otherwise than by relief granted by the court;
PAY VAT
2.27 to pay any Value Added Tax lawfully imposed upon and added to any
fee, charge, cost or expense for which the Lessor may be liable
under this Lease and to pay the stamp duty and registration fees on
this Lease and counterpart and Value Added Tax payable by reason of
the granting of this Lease;
YIELD UP
2.28 at the expiration or sooner determination of the said term quietly
to yield up the demised premises together with all the Lessor's
fixtures and all other Lessor's fittings and equipment that now
are or which during the said term shall be affixed or fastened
thereto (except Lessee's or trade fixtures) in such good and
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substantial repair and condition as shall be in accordance with
the covenants on the part of the Lessee herein contained and in
case any of the said fixtures and fitting or equipment shall be
missing, broken, damaged or destroyed forthwith to replace them
with others of a similar kind and of equal value, fair wear and
tear excepted, and to make good any damage caused to the demised
premises by the removal of the Lessee's fixtures, fittings and
furniture and effects (damage by any of the insured risks excepted
if and so long only as the policy or policies of insurance shall
not have been vitiated or payment of the policy monies withheld or
refused in whole or in part by reason of any act, neglect or
default of the Lessee or the servants, agents, licensees or
invitees of the Lessee);
UNAUTHORISED USER
2.29 not at any time to use the demised premises or any part thereof or
allow same to be used for any entertainment or for any dangerous,
noisy or noxious or offensive trade, business, manufacture or
occupation whatsoever or for residence or for any illegal or
immoral purpose nor permit any sale or auction to be held on the
demised premises;
OBSERVE COVENANTS IN SUPERIOR LEASE
2.30 to comply in so far as the same are applicable with the covenants
of any condition (other than the covenant for payment of rent)
contained in Superior Lease under which the demised premises are
held by the Lessor,
INDEMNIFY LESSOR
2.31 (a) to fully and effectually indemnity the Lessor against the
breach, non-performance or non-observance by the Lessee of
any of the covenant and conditions on the Lessee's part
herein contained against any action costs, claims, expenses
and demands whatsoever or howsoever arising in respect of
or as a consequence (whether direct or indirect) of any
such breach, non-performance or non-observance as
aforesaid.
(b) to effect and keep in force during the continuance of this
Lease such Public Liability and Employees Liability or
other policies of insurance (to the extent that such
insurance cover is available) as may be necessary to cover
the Lessee against any claim arising on foot of Public
Liability or Employers Liability and to extend such
insurance cover so that the Lessor is indemnified by the
insurers in the same manner as the Lessee and whenever
required to do so by the Lessor to produce to the Lessor
said policy or policies together with satisfactory evidence
that the same is/are valid and subsisting and that all
premiums due thereon have been paid.
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3. RENT REVIEW
3.1 In this Clause the following expressions shall have the following
meanings respectively: -
(a) "Review Date" shall mean the last day of the fifth year
and the last day of each subsequent fifth year of the term
hereby granted;
(b) "Current Market Rent' shall mean the gross full market
rent without any deduction whatsoever at which the demised
premises might reasonably be expected to be let at the
nearest Review Date on the open market without fine or
premium as between a willing Lessor and a willing Lessee
and with vacant possession for the term unexpired of this
Lease and on the same terms and conditions in all other
respects as this present Lease (other than the amount of
rent hereby reserved but including the provision for five
yearly rent reviews) and upon the supposition (if not a
fact) that the demised premises includes adequate heating
to the office portion thereof and that the covenants on
the part of the Lessee herein have been fully performed
and observed there being disregarded:-
(i) any effect on rent of the fact that the Lessee has
been in occupation of the demised premises and any
goodwill attached to the demised premises by reason
of the carrying on therein 4f the business of the
Lessee;
(ii) any effect on rent of any improvement (within the
meaning Of the Landlord and Tenant Acts, 1931 to
1994 or any Acts amending or extending or
re-enacting the same) of the demised premises or any
part thereof or any works thereto carried out by the
Lessee with the licence of the Lessor at the
Lessee's own expense (otherwise than in pursuance of
any obligation to the Lessor whether pursuant to the
provisions of this Lease or otherwise) and carried
out prior to or during the currency of this Lease;
(iii) any diminution of the rental value of the demised
premises, caused by works carried out thereon by the
Lessee, its sub tenants or predecessors in title
during the term of this Lease;
3.2 The rent for the time being payable by the Lessee
hereunder shall be subject to increase in accordance with
the following provisions of this Clause;
3.3 The Lessor, its servants or agents shall be entitled by
notice in writing given to the Lessee, its servants or
agents not earlier than twelve months before and not more
than twenty four months after a Review Date to call for
review of the rent payable by the Lessee to the Lessor at
the Review Date specified in the notice and if upon any
such review it shall be ascertained or determined that the
Current Market Rent of the demised premises at the Review
Date is greater than
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the rent payable hereunder immediately prior to such
Review Date then, as from that Review Date, the yearly
rent payable hereunder shall be increased the Current
Market Rent so ascertained PROVIDED FURTHER that in n~
circumstances shall the rent payable hereunder following
such review be less than the rent payable by the Lessee
immediately prior to the Review Date;
3.4 Every such review as aforesaid shall, in the first
instance, be made by Lessor and the Lessee or their
respective Surveyors in collaboration but if agreement as
to the amount of the Current Market Rent at the Review
Daze shall have been reached between the parties hereto or
their Surveyors within three months or such extended
period as may be agreed by the Lessor and the Lessee after
the date of the Lessor's notice calling such review then
the question of the amount of the Current Market Rent of
the demised premises at the Review Date shall be referred
to the decision of a single Chartered Surveyor at least
ten years standing experienced in the letting of
manufacturing or light industrial facilities who shall act
as Arbitrator such Chartered Surveyor to be nominated by
the Lessor by notice in writing to the Lessee and if the
Lessee shall reject such nomination or fail or neglect to
agree within one month of the1 Lessor's notice such
Chartered Surveyor shall be appointed on the application
of either party by the President or acting President for
the time being of the Society of Chartered Surveyors which
term shall include any other body established from time to
time in succession or substitution or carrying on the
function currently carried out by the same.
3.5 Any arbitration as aforesaid shall be a submission to
arbitration within the, Arbitration Acts 1954 to 1998 or
any statutory modification or re-enactment thereof for the
time being in force and to the jurisdiction of the Courts
of the State for the enforcement of any award of said
Arbitrator;
3.6 If the Chartered Surveyor shall fail to determine the new
rent within three months of his appointment or nomination
or if he shall relinquish his appointment or die or if it
shall become apparent that for any reason he will be
unable to complete his duties hereunder a new Chartered
Surveyor shall be appointed or nominated in his place in
accordance with sub-clause 3.4 above;
3.7 If upon any such review the amount of any increased rent
shall not be ascertained or determined prior to the Review
Date the Lessee shall continue to pay rent at the yearly
rate payable immediately prior to the Review Date until
the quarter day next following the ascertainment or
determination of any increased rent whereupon subject to
the first proviso to Clause 3.3 hereof theft, shall be due
as a debt payable by the Lessee to the Lessor on demand a
sum equal to the amount by which the rent for the period
since the Review Date calculated at the increased rate
exceeds the rent for that period calculated at the
previous rate and in addition the Lessee shall pay
interest on the said sum from the Review Date until the
date of actual payment at the AAA rate of interest
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charged on overdrafts by the Associated Banks in the
Republic of Ireland at the Review Date or if there shall
be no such rate then at the rate of 12% per annum;
3.8 If upon such review as aforesaid it shall be agreed or
determined that the rend previously payable hereunder
shall be increased the Lessor and the Lessee shall (if
required by the Lessor) forthwith complete and sign a
written Memorandum or if the Lessor shall so elect execute
a Deed of Record recording the increased rent thenceforth
payable and the Lessee shall pay the stamp duty (if any
payable on such Memorandum or Deed of Record;
3.9 In the event of the Lessor being prevented or prohibited
in whole or in par from exercising its rights under this
Clause and/or obtaining an increase in the rent on any of
the Review Dates by reason of any legislation, Government
Order or Decree or Notice (increase in this context
meaning such increase as would be obtainable disregarding
the provisions of any such legislation and otherwise as
aforesaid) then the date at which the review would
otherwise haw taken effect shall be deemed to be extended
to permit and/require such review to take place on the
first date thereafter upon which such right or increase
may be exercised and/or obtained in whole or in part and
when in part on so man occasions as shall be necessary to
obtain the whole increase (meaning the whole of the
increase which the Lessor would have obtained if not
prevented or prohibited as aforesaid) and if there shall
be a partial prevention only there shall be a further
review on the first date or dates as aforesaid
notwithstanding th'1 rent may have been increased in part
on or since the date of review but in no instance shall
the increase in rent be dated back to exceed the statutory
control on increases of rent laid down by law.
SCHEDULE OF AREAS
3.10 For the purposes of rent review it is hereby agreed that
the floor area of the demised premises is 61,250 square
feet.
4. LESSORS COVENANTS
The Lessor hereby covenants with the Lessee in manner following
that is to say:
TO INSURE
4.1 Subject to insurance cover being available against the
Insured Risks and subject to the reimbursement by the
Lessee of the sum or sums pursuant to Clause 2.2(b)
hereinbefore specified the Lessor will insure or procure
the insurance of the demised premises and all Lessor's
fixtures, fittings and equipment therein and thereon and
keep the same insured to the full reinstatement costs plus
an inflationary factor (to be determined from time to time
by the Lessor or its Surveyor) against loss or damage by
fire, explosion, lightning, storm, tempest,
15
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impact, earthquake, aircraft, riot and civil commotion,
property owners, public, employers and other liability of
the Lessor arising out of or in relation to the demised
premises, site clearance expenses, Architects', Engineers'
and Surveyors' fees and Value Added Tax and any other duty
exigible on any building contract as may be entered into
relative to the reconstruction, reinstatement or repair of
the demised premises or any part thereof resulting from
the destruction, loss or damage thereof or thereto of from
any of the perils aforesaid and the loss of rent from time
to time payable or reasonably estimated to be payable
under this Lease (taking into account any review of the
rent which may become due under this Lease) following loss
or damage to the demised premises by the insured risks for
three years or such longer period as the Lessor may, from
time to time, reasonably deem to be necessary having
regard to the likely period required for the rebuilding
and for obtaining Planning Permission and any other
consents, certificates and approvals in connection with
the reinstatement of the demised premises and such other
perils, expenses and; losses as the Lessor in its sole
discretion shall think fit (all such risks and perils
being referred to as "the Insured Risks") PROVIDED that
the Lessor shall immediately notify the Lessee of any
inability on its part to effect sue insurance as
aforesaid;
(a) the Lessor shall (but without being obliged) use its
best endeavours to procure that the foregoing
insurances shall be effected upon the terms that the
Insurer shall waive any rights or remedies which it
may have or may become entitled to against the
Lessee or its permitted tenants or assigns whether
by way of subrogation or otherwise and the Lessor
shall I use its best endeavours to procure that
every policy of insurance issue in respect of such
insurances shall bear an endorsement binding upon
such Insurer evidencing such waiver PROVIDED always
that Lessor shall have no liability to the Lessee
for any loss or damage suffered by it if the Lessor
is unable to procure the waiver by Insurer of any
such rights or remedies.,
SUSPENSION OF RENT
4.2 In the event of the demised premises or any part thereof
being destroyed or damaged by any of the Insured Risks so
as to render the demised premises unfit for occupation,
use or access then and in such cases (unless the insurance
of the demised premises shall have been forfeited or made
ineffective by any act, neglect or default of the Lessee,
its servants, agents, licensees or invitees or
undertenants) the rent hereby reserved or a fair and just
proportion thereof according to the nature and extent of
the damage sustained shall from and after such destruction
or damage be suspended until either the demised premises
shall have been rebuilt or reinstated and made fit for
occupation use and access or the expiration of three years
(or such longer period as the Lessor may have insured
against) from the date of destruction or damage whichever
is the earlier; any dispute with reference to this
provision shall be referred to arbitration by a
single arbitrator under the Arbitration Acts, 1954-1998
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WAIVER OF SURRENDER
4.3 In the case the demised premises or any part thereof shall
be destroyed and become ruinous and become uninhabitable
or incapable of beneficial occupatio?t1 or enjoyment by,
for or from any of the Insured Risks the Lessee hereby
absolutely waives and abandons its rights (if any) to
surrender this Lease under the provisions of Section 40 of
the Landlord and Tenant Law Amendment Act, Ireland, 1860
or otherwise
REINSTATE
4.4 If the demised premises or any part thereof shall at any
time during the term destroyed or damaged by any of the
Insured Risks as aforesaid, then the Lessor shall apply
all monies received in respect of such insurance (other
than in respect of loss of rent) with all reasonable speed
in rebuilding, repairing and otherwise reinstating the
demised premises to a factory premises of the same square
footage and utility as the demised premises, unless the
policy or policies' of insurance shall have been vitiated
or rendered less than fully effective by any act, neglect,
default or omission of the Lessee, its servants, agents,
licensees invitees or undertenants and the Lessor shall
make up any deficiency in the insurance monies received
out of its own money PROVIDED HOWEVER the Lessor is
prevented (for any reason other than its act or default)
from compliance with the provisions of this clause and
such prevention continues for three years and the Lease is
not otherwise terminated the Lessor or Lessee may at any
time after the expiry of that period by not less than
three months written notice given to the other party
determine this Lease, but without prejudice to any claim
by either party against the other in respect of any
antecedent breach of its terms and in such event the
Lessor shall be relieved of its obligations hereunder and
shall be solely entitled to the insurance monies,
MAKE UP SHORTFALL IN INSURANCES
4.5 In the event of the demised premises or any part thereof
being destroyed or damaged by any of the risks in respect
of which the Lessor pursuant to the terms hereof shall
have effected insurance, money under any insurance against
the same effected thereon by the Lessor being wholly or
partly irrecoverable by reason solely or in part of any
act or default of the Lessee, its servants, agents,
licensees or invitees then and in every such case the
Lessee will forthwith (in addition to the said rent) pay
to the Lessor the whole (or as the case may require) a
fair proportion of the cost of completely rebuilding and
reinstating the demised premises;
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QUIET ENJOYMENT
4.6 That the Lessee paying the rents hereby reserved and
performing and observing the several covenants and
agreements herein contained and on the Lessee's pat to be
observed and performed shall and may peaceably and quietly
hold and enjoy the demised premises during the said term
without any interruption or disturbance from or by the
Lessor or any person or persons rightfully claiming under
or in trust for the Lessor.
5. IT IS HEREBY AGREED between the Lessor and the Lessee as follows: -
CHANGE OF USE
5.1 If the Lessee shall apply to the Lessor for consent to
change of user pursuant to the provisions of Clause 2.15
hereof the Lessor shall be entitled to withhold its
consent if, in the sole opinion of the Superior Lessor
Forfas and having regard to its statutory functions and
the relevant provisions of the industrial! Development Act
1986, the resultant use of the demised premises would
inconsistent with the Superior Lessor's objectives of the
creation and maintenance of fulltime employment in the
demised premises,
RENT IN ARREARS
5.2 If the said rent or any sum payable hereunder or any part
thereof shall unpaid for 28 days after any of the days
hereinbefore appointed for payment whether same shall have
been lawfully demanded or not; or
(a) If any of the covenants on the Lessee's part herein
contained shall not be observed or performed; or
(b) If the Lessee being an individual or firm shall
become bankrupt or compound or arrange with his or
its Creditors or being a Company shall go into
liquidation either compulsorily or voluntarily
except for the purpose of a reconstruction or
amalgamation previously approved in writing by the
Lessor; or
(c) If the Lessee being a body corporate has a winding
up petition presented against it or passes a
winding up resolution (other than in connection
with a Members Voluntary Winding Up for the
purposes of amalgamation reconstruction which has a
prior written approval of the Lessor) or resolve to
present its own winding up petition or is wound-up
(whether in Ireland or elsewhere) or an Examiner or
Receiver or Manager is appointed in respect of the
demised premises or if the Company enters into a
Scheme of Arrangement with its creditors;
then and in any of the said cases and at any time thereafter it shall
be lawful for the Lessor or any persons authorised by the Lessor to
enter upon the demised premises or any part thereof in the name of the
whole and to repossess the same
18
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and to enjoy the same as if this Lease had not been granted but
without, prejudice to any right of action or remedy by either party in
respect of any antecedent breach of any of the covenants by the other
herein contained.
LESSEE'S FUTURES AND FITTINGS
5.3 If at such time as the Lessee has vacated the demised
premises after the determination of the term hereby
granted either by effluxion of time or otherwise any
property of the Lessee shall remain in or on the demised
premises and the Lessee shall fail to remove the same
within seven days after being requested in writing by the
Lessor so to do then and in such case the Lessor (without
being obliged so to do and in any event without prejudice
to such other rights as the Lessor may have in that
behalf) may as agent of the Lessee (and the Lessor is
hereby appointed by the Lessee to act as such agent and
in its capacity as such agent to act as the Lessor in its
absolute discretion may think fit) sell such property and
shall then hold the proceeds of sale after deducting the
costs and expenses of removal, storage (including loss of
or reduction in rent received by the Lessor on account of
such property remaining by way of storage pending sale in
the demised premises) and sale reasonably and properly
incurred or suffered by it to the order of the Lessee
PROVIDED THAT the Lessee shall indemnify the Lessor
against any liability incurred by the Lessor to any third
party whose property shall have been sold by the Lessor
in the bona fide mistaken belief (which shall be presumed
unless the contrary is proved) that such property
belonged to the Lessee and was liable to be dealt with
such pursuant to this Sub-Clause;
LESSOR/SUPERIOR LESSOR
5.4 All reservations and exceptions herein in favour of the
Lessor shall enure fin the benefit of the Superior Lessor
of the Lessor and in relation to any coven9tj or
obligation of the Lessor hereunder or any consent required
to be sought from the Lessor the term "The Lessor" shall
mean and include the Lessor and such Superior Lessor;
NOTICES
5.5 Any notices requiring to be served hereunder shall be
sufficiently served on the Lessee if left addressed to it
at the principal office of the Lessee or forwarded to it
by post or left at its fast known address in Ireland and
shall be sufficiently served on the Lessor if delivered to
it personally or forwarded to it by post or, left at its
principal office in Ireland. A notice sent by post shall
be deemed to have been given at the time when in due
course of post it would be delivered at the address to
which it is sent;
19
<PAGE>
6. ASSENT
The Lessor hereby assents to the registration of this Lease as a Burden
on Folio 61890F of the Register County Dublin and on the Folio to be
opened in its name an to the use of the Land Certificates (if issued)
for the purpose of such registration.
7. EXCLUSION OF WARRANTY
7.1 Nothing contained in this Lease implies or warrants that
the demised premises may be used under the Planning Acts
or the Building Control Act for the purpose herein
authorised and the Lessee hereby acknowledges that the
Lessor has not given or made at any time any
representation or warranty that any such use is or will be
or will remain a permitted user under those Acts;
REPRESENTATIONS
7.2 The Lessee acknowledges that this Lease has not been entered
into in relying solely or partly on any statement or
representation made by or on behalf of the Lessor except any
such statement or representation that is expressly set out in
this Lease.
NON-WAIVER
7.3 Each of the Lessee's covenants shall remain in full force both
at law and in equity notwithstanding that the Lessor may have
appeared to have waived or released temporarily any such
covenant, or waived or released temporarily or permanently any
such covenant;
APPLICABLE LAW
7.4 This Lease and all relationships created thereby shall in all
respects be governed by and construed and interpreted in
accordance with the laws of Ireland.
8. BREAK OPTION
The Lessee may terminate this Lease on the expiration of the twelfth
year of the term thereof, that is, on the 30th day of November 2012
(hereinafter referred to as "the Termination Date") on the payment by
the Lessee to the Lessor of the amount provided for at Sub-Clause 8.4
hereof subject strictly to the following terms and conditions:-
8.1 In relation to the Termination Date, the Lessee shall serve on
the Lessor a. Notice in writing (hereinafter called the
Termination Date Notice") at least twelve months' prior to the
expiry of the Termination Date (but in any event not prior to
the expiry of the tenth year of the term hereby demised);
8.2 In relation to the Termination Date Notice, time shall be of the
essence;
8.3 In relation to the Termination Date Notice, the Lessee shall
send with same to
20
<PAGE>
the Lessor a bank draft payable to the Lessor in an amount
equivalent to six months of the then current annual rent
payable by the Lessee to the Lessor under this Lease at
the date of the Termination Date Notice. Should the Lessee
not comply with this condition the Termination Date Notice
shall be invalid and of no effect;
8.4 Notwithstanding the payment by the Lessee to the Lessor
pursuant to Sub-Clause 8.3 hereof, the Lessee shall
continue to be responsible for the rent and all outgoings
payable on foot of this Lease in relation to the demised
premises up to the Termination Date;
8.5 The Lessee shall, on or prior to the Termination Date deliver
to the Lessor the original of this Lease, together with all
related title documentation (inc1uding a release or discharge
of all mortgages, charges and other encumbrances, whether
registered or not) and shall as beneficial owner deliver duly
executed~1 and stamped a Transfer or Surrender of this Lease and
if applicable, shah procure the cancellation of the registration
of this Lease in the Land Registry;
8.6 The Lessee shall be responsible for all Value Added Tax payable
on Surrender of the Lease and the Lessor's legal costs and
expenses in relation thereto;
8.7 Any such termination of this Lease, on the Termination Date,
shall be without prejudice to any antecedent breach by either
the Lessor or the Lessee of any their respective covenants or
conditions herein contained.
9. CERTIFICATES
9.1 IT IS HEREBY FURTHER CERTIFIED that the Lessee is a
qualified person within the meaning of Section 45 of the
Land Act, 1965, as amended by the Land Act, (Additional
Category of Qualified Persons) Regulations, 1994, in that
the property hereby demised is situate within the County
of Fingal County Council as specified in the Local
Government (Dublin) Act, 1993.
9.2 IT IS HEREBY CERTIFIED that the transaction hereby
effected does not form part of a larger transaction or of
a series of transactions in respect of which the amount or
value or the aggregate amount or value of the
consideration (other than rent) exceeds IR(pound)5,OOO.OO.
9.3 IT IS HEREBY CERTIFIED FURTHER THAT Section 53 (Lease
combined with Building Agreement for
dwellinghouse/apartment) of the Stamp Duties Consolidation
Act, 1999, does not apply to this instrument.
9.4 IT IS HEREBY CERTIFIED that no part of the consideration
for the Lease is attributable (or deemed to be
attributable) to residential property.
21
<PAGE>
SCHEDULE
(THE DEMISED PREMISES)
ALL THAT AND THOSE the lands and premises situate at Snugborough, Blanchardstown
in the County of Dublin being part of the lands comprised in Folio 61890F of the
Register County Dublin as more particularly described on the Plan annexed hereto
and thereon outlined with a red verge line.
IN WITNESS whereof the parties hereto have caused their respective Seals to be
hereunto affixed the day and year first herein WRITTEN.
PRESENT when the Common
Seal of CANADA LIFE ASSURANCE (IRELAND) LIMITED was affixed
hereto:
PRESENT when the Common
Seal of BEI ELECTRONICS IRELAND LIMITED was affixed
hereto:
/S/ CARY T. FU
- ----------------
/S/LENORA GURTON
- ----------------
22
<PAGE>
THIS INDENTURE MADE THE DAY OF 2001
BETWEEN the within named CANADA LIFE ASSURANCE (IRELAND) LIMITED (hereinafter
called "the Lessor" which expression shall include its successors and assigns)
of the one part and BENCHMARK ELECTRONICS INC. of 3000, Technology Drive
Angleton, Texas, 77515, United States of America of the other part.
WITNESSETH THAT:-
GUARANTEE:
1. In consideration of the within named Lessor having agreed at our
request to accept the within named Lessee as Lessee upon the terms of
the within written Indenture we guarantee the payment by the within
named Lessee to the within named Lessor of tie rent (including any
increases thereof) payable under the within Indenture and all other
monies whatsoever payable by the within named Lessee to the within
named Lessor under the within Indenture and the performance and
observance by the within named Lessee of the covenants and conditions
stipulations and agreements on its part contained in the within
Indenture upon the following terms:
1.1 If the within named Lessee shall make any default in payment
of the re4r payable under the within Indenture (including any
increases thereof) or of any part thereof or any other monies
whatsoever payable by the within nam4k Lessee under the
within Indenture for the space of one month we shall upon a
written request by the within named Lessor pay forthwith such
sum or sums;
1.2 If the within named Lessee shall make any default in the
observance or performance of any of the covenants
conditions agreements or stipulations o~ its part contained
in the within Indenture we will pay to the within named.
Lessor all losses damages expenses charges and costs which
the within named Lessor shall be entitled to recover by
reason of such default to the extent which the within named
Lessor shall be unable to recover them from the within
named Lessee together with all costs, expenses and charges
incurred by the Lessor in any way in connection with this
Guarantee or the enforcement or discharge of our
obligations hereunder including such costs, expenses and
any charges incurred by the Lessor in the enforcement of
any Judgement either in this or any other jurisdiction.
1.3 This Guarantee shall continue for as long as the term created
by the within Indenture is vested in the within named Lessee
and shall extend to the acts and defaults of the within named
Lessee during the said term and during the said term shall
not be revocable or discharged by the liquidation of us or by
the liquidation of the within named Lessee
PROVIDED ALWAYS and it is hereby agreed and declared that any
neglect, or forbearance on the part of the within named
Lessor in endeavouring to obtain
1
<PAGE>
payment of the said rent and any increases thereof or other
monies when the same shall become due and payable by the
within named Lessee to the within named Lessor under the
within Indenture or to enforce the performance and observance
of the said covenants and conditions stipulations agreements
to be observed and performed by the within named Lessee in
respect thereof or any licence consent or permission which may
be granted by the within named Lessor to the within named
Lessee or any compromise or arrangement made by the within
named Lessor with the within named Lessee shall not release or
exonerate or in any way affect the liability of us to the
within named Lessor or prejudice the rights or remedies of the
within named Lessor under this Guarantee.
1.4 If the within named Lessee being a Company shall go into
liquidation whether voluntary or compulsory (except for the
purpose of amalgamation or reconstruction) or being an
individual shall become bankrupt and the Liquidator or
Official Assignee or Trustee in Bankruptcy shall disclaim the
within Indenture and the within named Lessor shall serve
notice in writing on us pursuant to this Clause within three
months from the date of such disclaimer shall at our expense
forthwith accept from the within named Lessor a Lease
(hereinafter called "the New Lease") of the demised premises
and execute a Counterpart thereof for a term commencing on the
date of such disclaimer and continuing during the residue of
the term created by the within Indenture such new Lease to
contain the like Lessee's and Lessor's covenants respectively
and the like provisos and conditions in all respects
(including the proviso for re-entry) as are contained in the
within Indenture but such new Lease shall be1 without
prejudice to all liability of us under this Guarantee up to
the date of, such disclaimer.
2. APPLICABLE LAW
This Guarantee and all relationships created thereby shall in
all respects be governed by and construed and interpreted in
accordance with the laws of Ireland.
3. JURISDICTION
The Courts of Ireland shall have jurisdiction over any action
to enforce the Lessors rights under this Guarantee and in
respect of all disputes arising under this Guarantee and for
that purpose Benchmark Electronics Inc. hereby submits to the
jurisdiction of the Courts of Ireland and agrees that all
summonses, notices or processes required to be served upon it
for the purposes of such action or any other legal proceedings
shall be deemed to be properly served if addressed and
delivered to them care of Arthur Cox, Solicitors, Arthur Cox
Building, Earisfort Terrace, Dublin 2 who Benchmark
Electronics Inc. irrevocably appoint as agents for acceptance
of service of all such documents.
2
<PAGE>
4. WAIVER
We hereby waive any right to require the Lessor to proceed
against the Lessee or to pursue any other remedy whatsoever
which may be available to the Lessor before proceeding against
us.
5. NOTICES
Any demand or notice required to be made, given to or served
on us under this Guarantee is duly and validly made, given or
served if addressed to us and delivered personally or sent by
prepaid Registered or Recorded Delivery post or sent by
telegraphic facsimile transmission addressed to our
registered office or to our last known address or place of
business in Ireland or to Arthur Cox, Solicitors of Arthur
Cox Building, Earisfort Terrace, Dublin 2. whom we
irrevocably appoint as our agent for acceptance of service of
any such Demand or Notice.
PRESENT when the Common
Seal of BENCHMARK
ELECTRONICS INC.
was affixed hereto:
/S/ CARY FU
- ---------------------
/S/ DONALD NIGBOR
- ----------------------
3
<PAGE>
LEASE MAP
[GRAPHIC OMITTED]
4
<PAGE>
DATED THE DAY OF 2001
- -------------------------------
CANADA LIFE ASSURANCE
(IRELAND) LIMITED
One Part
BEI ELECTRONICS IRELAND
LIMITED
Other Part
LEASE
RE: INDUSTRIAL PREMISES AT SNUGSBOROUGH
BLANCHARDSTOWN BUSINESS PARK, DUBLIN 15
Arthur Cox,
Earlsfort Centre
Earlsfort Terrace,
Dublin 2
5
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-10.25
<SEQUENCE>6
<FILENAME>a2043169zex-10_25.txt
<DESCRIPTION>EXHIBIT 10.25
<TEXT>
<PAGE>
EXHIBIT 10.25
================================================================================
AMENDED AND RESTATED CREDIT AGREEMENT
dated as of
June 23, 2000
among
BENCHMARK ELECTRONICS, INC.
The Borrowing Subsidiaries
The Lenders Party Hereto,
FLEET NATIONAL BANK
as Documentation Agent
CREDIT SUISSE FIRST BOSTON
as Syndication Agent
BANK OF AMERICA, N.A.,
BANK ONE NA
and
SUN TRUST BANK
as Co-Agents
and
CHASE BANK OF TEXAS, NATIONAL ASSOCIATION,
as Administrative Agent, Collateral Agent
and
Issuing Bank
---------------------------
CHASE SECURITIES INC.,
as Arranger
================================================================================
[CS&M #6700-883]
-i-
<PAGE>
Page
----
ARTICLE I
Definitions
SECTION 1.01. Defined Terms .............................................. 6
SECTION 1.02. Classification of Loans and Borrowings ..................... 37
SECTION 1.03. Terms Generally ............................................ 38
SECTION 1.04. Accounting Terms; GAAP ..................................... 38
ARTICLE II
The Credits
SECTION 2.01. Commitments ................................................ 38
SECTION 2.02. Loans and Borrowings ....................................... 40
SECTION 2.03. Requests for Borrowings .................................... 41
SECTION 2.04. Letters of Credit .......................................... 42
SECTION 2.05. Funding of Borrowings ...................................... 45
SECTION 2.06. Interest Elections ......................................... 46
SECTION 2.07. Termination and Reduction of Commitments ................... 47
SECTION 2.08. Repayment of Loans; Evidence of Debt ....................... 48
SECTION 2.09. Amortization of Term Loans ................................. 48
SECTION 2.10. Prepayment of Loans ........................................ 49
SECTION 2.11. Fees ....................................................... 50
SECTION 2.12. Interest ................................................... 52
SECTION 2.13. Alternate Rate of Interest ................................. 53
SECTION 2.14. Increased Costs ............................................ 53
SECTION 2.15. Break Funding Payments ..................................... 54
SECTION 2.16. Taxes ...................................................... 55
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs ................................................ 56
SECTION 2.18. Mitigation Obligations; Replacement of Lenders ............. 57
SECTION 2.19. Borrowing Subsidiaries ..................................... 58
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ....................................... 59
SECTION 3.02. Authorization; Enforceability .............................. 59
SECTION 3.03. Governmental Approvals; No Conflicts ....................... 59
SECTION 3.04. Financial Condition; No Material Adverse Change ............ 59
SECTION 3.05. Properties ................................................. 60
SECTION 3.06. Litigation and Environmental Matters ....................... 60
SECTION 3.07. Compliance with Laws and Agreements ........................ 61
SECTION 3.08. Investment and Holding Company Status ...................... 61
-ii-
<PAGE>
SECTION 3.09. Taxes ...................................................... 61
SECTION 3.10. ERISA ...................................................... 61
SECTION 3.11. Disclosure ................................................. 61
SECTION 3.12. Subsidiaries ............................................... 62
SECTION 3.13. Insurance .................................................. 62
SECTION 3.14. Labor Matters .............................................. 62
SECTION 3.15. Solvency ................................................... 62
SECTION 3.16. Senior Indebtedness ........................................ 62
SECTION 3.17. Year 2000 .................................................. 62
SECTION 3.18. Intellectual Property ...................................... 63
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date ................................. 63
SECTION 4.02. Each Credit Event .......................................... 64
SECTION 4.03. Initial Credit Event for each Borrowing Subsidiary ......... 65
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information ................. 65
SECTION 5.02. Notices of Material Events ................................. 67
SECTION 5.03. Information Regarding Collateral ........................... 67
SECTION 5.04. Existence; Conduct of Business ............................. 68
SECTION 5.05. Payment of Obligations ..................................... 68
SECTION 5.06. Maintenance of Properties .................................. 68
SECTION 5.07. Insurance .................................................. 69
SECTION 5.08. Books and Records; Inspection and Audit Rights ............. 69
SECTION 5.09. Compliance with Laws ....................................... 69
SECTION 5.10. Use of Proceeds and Letters of Credit ...................... 69
SECTION 5.11. Additional Subsidiaries .................................... 69
SECTION 5.12. Further Assurances ......................................... 70
SECTION 5.13. Interest Rate and Currency Exchange Rate Protection ........ 70
SECTION 5.14. Ownership of Subsidiaries .................................. 70
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness ............................................... 71
SECTION 6.02. Liens ...................................................... 72
SECTION 6.03. Fundamental Changes ........................................ 73
SECTION 6.04. Investments, Loans, Advances, Guarantees and Acquisitions .. 73
SECTION 6.05. Asset Sales, etc ........................................... 75
SECTION 6.06. Sale and Leaseback Transactions ............................ 76
SECTION 6.07. Hedging Agreements ......................................... 76
SECTION 6.08. Restricted Payments; Certain Payments in Respect
of Indebtedness ............................................ 76
-iii-
<PAGE>
SECTION 6.09. Transactions with Affiliates ............................... 76
SECTION 6.10. Restrictive Agreements ..................................... 77
SECTION 6.11. Sales and Assignments of Income, Revenues and Receivables .. 77
SECTION 6.12. Amendment of Material Documents ............................ 77
SECTION 6.13. Interest Coverage Ratio .................................... 77
SECTION 6.14. Adjusted Leverage Ratio; Leverage Ratio .................... 77
SECTION 6.15. Fixed Charge Coverage Ratio ................................ 78
SECTION 6.16. Current Ratio .............................................. 78
SECTION 6.17. Minimum Tangible Net Worth ................................. 78
ARTICLE VII
Events of Default.......................................................... 79
ARTICLE VIII
The Administrative Agent................................................... 81
-vi-
<PAGE>
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices ..................................................... 83
SECTION 9.02. Waivers; Amendments ......................................... 84
SECTION 9.03. Expenses; Indemnity; Damage Waiver .......................... 85
SECTION 9.04. Successors and Assigns ...................................... 86
SECTION 9.05. Survival .................................................... 88
SECTION 9.06. Counterparts; Integration; Effectiveness .................... 89
SECTION 9.07. Severability ................................................ 89
SECTION 9.08. Right of Setoff ............................................. 89
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process .. 89
SECTION 9.10. WAIVER OF JURY TRIAL ........................................ 90
SECTION 9.11. Headings .................................................... 90
SECTION 9.12. Confidentiality ............................................. 90
SECTION 9.13. Interest Rate Limitation .................................... 91
SECTION 9.14. Release of Liens and Guarantees ............................. 91
SECTION 9.15. No Novation ................................................. 92
SCHEDULES:
Schedule 1.01 -- Guarantors
Schedule 2.01 -- Commitments
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.05 -- Existing Investments
Schedule 6.10 -- Existing Restrictions
Schedule A -- Mortgaged Property
Schedule B -- Scheduled Indebtedness
Schedule C -- Approved Account Debtors
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit C -- Form of Perfection Certificate
Exhibit D -- Form of Pledge Agreement
Exhibit E -- Form of Guarantee Agreement
Exhibit F -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit G -- Form of Security Agreement
Exhibit H -- Form of Borrowing Request
-vi-
<PAGE>
Exhibit I -- Form of Interest Election Request
Exhibit J -- Form of Monthly Borrowing Base Certificate
Exhibit K -- Form of Mortgage
Exhibit L -- Form of Issuing Bank Agreement
Exhibit M-1 -- Form of Borrowing Subsidiary Agreement
Exhibit M-2 -- Form of Borrowing Subsidiary Termination
Exhibit N -- Form of Foreign Borrower Supplement
-v-
<PAGE>
AMENDED AND RESTATED CREDIT AGREEMENT dated as of
June 23, 2000 among BENCHMARK ELECTRONICS, INC., the
Borrowing Subsidiaries from time to time party hereto,
the LENDERS party hereto, FLEET NATIONAL BANK, as
Documentation Agent, CREDIT SUISSE FIRST BOSTON, as
Syndication Agent, BANK OF AMERICA, N.A., BANK ONE, NA
and SUN TRUST BANK as Co-Agents and CHASE BANK OF TEXAS,
NATIONAL ASSOCIATION, as Administrative Agent,
Collateral Agent and Issuing Bank.
Pursuant to the Stock Purchase Agreement (such term and each other
capitalized term used but not defined herein having the meaning given to it in
Article I), the Company acquired all the issued and outstanding shares of
capital stock of the Avex Entities. In connection with the Acquisition, on the
Effective Date of the Original Credit Agreement (a) the Company borrowed the
Term Loans and a principal amount not to exceed $75,000,000 of the Revolving
Loans, (b) the Company received the proceeds of not less than $80,200,000
aggregate principal amount of the Subordinated Notes and (c) the Company
refinanced the Scheduled Indebtedness.
Under the Original Credit Agreement, the Lenders agreed to extend
credit in the form of (a) Term Loans on the Effective Date in an aggregate
principal amount not in excess of $100,000,000 and (b) Revolving Loans at any
time and from time to time on or after the Effective Date and prior to the
Revolving Maturity Date in an aggregate principal amount at any time outstanding
not in excess of $125,000,000 minus the LC Exposure at such time, and the
Issuing Banks agreed to issue Letters of Credit in an aggregate stated amount at
any time outstanding that would not result in the LC Exposure exceeding
$20,000,000. The proceeds of the Term Loans and of Revolving Loans made on the
Effective Date were to be used by the Company solely (i) to finance the
Acquisition, (ii) to refinance the Scheduled Indebtedness and (iii) to pay fees
and expenses related to the Effective Date Transactions. The proceeds of the
remaining Revolving Loans were to be used by the Company and its Subsidiaries to
provide working capital and for other general corporate purposes. The Letters of
Credit were to be used to support obligations incurred by the Company and the
Subsidiaries in the ordinary course of their businesses.
The Company has requested that the Original Credit Agreement be
amended and restated to, among other things, increase the Revolving Commitments
to $175,000,000 on the Restatement Effective Date and amend certain covenants as
set forth herein. The proceeds of Loans made under the increased Revolving
Commitments, and Letters of Credit issued pursuant thereto, will be used for the
same purposes as the Loans made and the Letters of Credit issued under the
Revolving Commitments as originally in effect.
The parties hereto agree as follows:
<PAGE>
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Acceptable Securities" means subordinated debt securities issued by
the Company that (a) are subordinated to the Obligations on terms not less
favorable to the Lenders than the Subordinated Notes, (b) contain covenants,
events of default and mandatory redemption, repayment, prepayment or repurchase
requirements no less favorable to the Company and the Lenders than those of the
Subordinated Notes, (c) do not mature, and are not subject to any scheduled
amortization, redemption, repayment, prepayment or repurchase requirement, prior
to the date one year after the Term Loan Maturity Date and (d) are not
Guaranteed by any of the Subsidiaries.
"Account" means any right to payment for goods sold or leased or for
services rendered whether or not earned by performance.
"Account Debtor" means, with respect to any Account, the obligor
with respect to such Account.
"Acquisition" means the purchase by the Company of all the issued
and outstanding shares of capital stock of the Avex Entities, under and as
provided in the Stock Purchase Agreement.
"Adjusted Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Company and its Restricted Subsidiaries ended
on such date (or, if such date is not the last day of a fiscal quarter, ended on
the last day of the fiscal quarter of the Company most recently ended prior to
such date).
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means Chase, in its capacity as
administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
<PAGE>
10
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate
in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect
on such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a
change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.
"Angleton Direct Material Purchase Price Variance Reserve" means,
for the Angleton division and all other divisions which directly expense direct
material purchase price variances, an amount equal to the sum of the net
favorable variances (the amount whereby standard cost used to compute Inventory
Value exceeds actual cost incurred) as classified under the Company's and its
Domestic Divisions' current and historical accounting practices for the two
months ending as of the date of the most recently delivered Borrowing Base
Certificate.
"Applicable Percentage" means, with respect to any Revolving Lender,
the percentage of the total Revolving Commitments represented by such Lender's
Revolving Commitment. If the Revolving Commitments have terminated or expired,
the Applicable Percentages shall be determined based upon the Revolving
Commitments most recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day (a) with respect to any ABR
Loan or Eurodollar Loan that is a Revolving Loan or a Term Loan, or (b) with
respect to the commitment fees payable hereunder, as the case may be, the
applicable rate per annum set forth below under the relevant table under the
caption "ABR Spread", "Eurodollar Spread" or "Commitment Fee", as the case may
be, based upon the Adjusted Leverage Ratio as of the most recent determination
date:
<PAGE>
11
Revolving Loan and Term Loan Table
================================================================
ABR Eurodollar
Adjusted Leverage Ratio: Spread Spread
------------------------ ------ ------
----------------------------------------------------------------
Category 1
Greater than
3.25 to 1.00 1.750% 3.000%
----------------------------------------------------------------
Category 2
Less than or equal to
3.25 to 1.00 but
greater than
3.00 to 1.00 1.500% 2.750%
----------------------------------------------------------------
Category 3
Less than or equal to
3.00 to 1.00 but
greater than 2.50 to
1.00 0.750% 2.250%
----------------------------------------------------------------
Category 4
Less than or equal to
2.50 to 1.00 but
greater than 2.00 to
1.00 0.500% 2.000%
----------------------------------------------------------------
Category 5
Less than or equal to
2.00 to 1.00 but
greater than 1.50 to
1.00 0.125% 1.625%
Category 6
Less than or equal to
1.50 to 1.00 0.000% 1.250%
================================================================
<PAGE>
12
Revolving Loan Commitment Fee Table
=================================================
Adjusted Leverage Ratio: Commitment Fee
------------------------ --------------
=================================================
Category 1
Greater than or equal
to 2.00 to 1.00 0.500%
-------------------------------------------------
Category 2
Less than 2.00 to 1.00 0.375%
=================================================
; provided, however, that prior to September 30, 2000, (i) if the Leverage Ratio
is greater than 3.25 to 1.00, the Eurodollar Spread shall be 2.750% and the ABR
Spread shall be 1.500% and (ii) if the Leverage Ratio is less than or equal to
3.25 to 1.00 but greater than 3.00 to 1.00, the Eurodollar Spread shall be
2.500% and the ABR Spread shall be 1.250%.
For purposes of the foregoing, (i) the Adjusted Leverage Ratio shall
be determined as of the end of each fiscal quarter of the Company's fiscal year
based upon the Company's consolidated financial statements delivered pursuant to
Section 5.01(a) or (b) and (ii) each change in the Applicable Rate resulting
from a change in the Adjusted Leverage Ratio shall be effective during the
period commencing on and including the date of delivery to the Administrative
Agent of such consolidated financial statements indicating such change and
ending on the date immediately preceding the effective date of the next such
change; provided that the Adjusted Leverage Ratio shall be deemed to be in
Category 1 under each of the above tables (A) at any time that an Event of
Default has continued in effect for more than three Business Days following the
Company's receipt of notice thereof from the Administrative Agent and (B) at the
option of the Administrative Agent or at the request of the Required Lenders if
the Company fails to deliver the consolidated financial statements required to
be delivered by it pursuant to Section 5.01(a) or (b), during the period from
the expiration of the time for delivery thereof until such consolidated
financial statements are delivered.
"Approved Jurisdiction" means any of the Republic of Ireland,
Scotland, the Kingdom of Sweden or the Republic of Singapore.
"Assessment Rate" means, for any day, the annual assessment rate in
effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be determined by the Administrative Agent to be representative of
the cost of such insurance to the Lenders.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
<PAGE>
13
"Avex Entities" means Avex Electronics, Inc, an Alabama corporation,
and Avex Holdings B.V., a Netherlands corporation.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Board of Directors" means the Board of Directors of the Company or
any committee thereof duly authorized to act on behalf of such Board.
"Borrower" means the Company or any Borrowing Subsidiary.
"Borrowing" means Loans of the same Class and Type, made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect.
"Borrowing Base" means, at any time (subject to adjustment as
provided in Section 5.08 (b)), an amount equal to the sum of (a) 75% of Eligible
Accounts owed to the Company and its Domestic Divisions, (b) 45% of the
Inventory Value of Eligible Inventory of the Company and its Domestic Divisions,
(c) 50% of Eligible Fixed Assets of the Company and its Domestic Divisions and
(d) the Foreign Subsidiary Amount. The Borrowing Base at any time shall be
determined by reference to the most recent Borrowing Base Certificate delivered
to the Administrative Agent, absent any error in such Borrowing Base
Certificate.
"Borrowing Base Certificate" means a certificate in the form of
Exhibit J or any other form approved by the Administrative Agent, together with
all attachments contemplated thereby.
"Borrowing Subsidiary" means, at any time, each Restricted
Subsidiary incorporated or organized in a State of the United States of America
or an Approved Jurisdiction that has been designated as a Borrowing Subsidiary
by the Company pursuant to Section 2.19 and that has not ceased to be a
Borrowing Subsidiary as provided in such Section.
"Borrowing Subsidiary Agreement" means a Borrowing Subsidiary
Agreement substantially in the form of Exhibit N-1.
"Borrowing Subsidiary Termination" means a Borrowing Subsidiary
Termination substantially in the form of Exhibit N-2.
"Borrowing Request" means a request by a Borrower for a Borrowing in
accordance with Section 2.03, substantially in the form of Exhibit H.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also
<PAGE>
14
exclude any day on which banks are not open for dealings in dollar deposits in
the London interbank market.
"Capital Expenditures" means, for any period, all expenditures
(whether paid in cash or accrued as a liability, including the portion of
Capital Lease Obligations originally incurred during such period that are
capitalized on the consolidated balance sheet of the Company) by the Company and
its Restricted Subsidiaries during such period, that, in conformity with GAAP,
are included in "capital expenditures", "additions to property, plant or
equipment" or comparable items in the consolidated financial statements of the
Company, but excluding expenditures for the restoration, repair or replacement
of any fixed or capital asset that was destroyed or damaged, in whole or in
part, in an amount equal to any insurance proceeds received in connection with
such destruction or damage.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP and any obligations of such Person under any
synthetic lease financing whether or not such obligation is classified as a
capital lease under GAAP.
"Cash Interest Expense" means, for any period, the sum of all cash
payments of interest and prepayment charges, if any, including, without
limitation, all net amounts payable (or receivable) under interest rate
protection agreements and all imputed interest in respect of capital lease
obligations paid by the Company and its Restricted Subsidiaries on a
consolidated basis during such period.
"Change in Control" means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of Equity
Interests representing more than 50% of either the aggregate ordinary voting
power or the aggregate equity value represented by the issued and outstanding
Equity Interests in the Company; (b) occupation of a majority of the seats
(other than vacant seats) on the Board of Directors by Persons who were neither
(i) nominated by the current Board of Directors nor (ii) appointed by directors
so nominated; or (c) the occurrence of a Designated Event under and as defined
in the Subordinated Note Indenture or a Change of Control or similar event,
however denominated, under the Acceptable Securities or any other Material
Indebtedness.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender or
any Issuing Bank (or, for purposes of Section 2.14(b), by any lending office of
such Lender or by such Lender's or such Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the date of this
Agreement.
"Chase" means Chase Bank of Texas, National Association, and its
successors.
<PAGE>
15
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Term Loans and, when used in reference to any Commitment, refers to whether
such Commitment is a Revolving Commitment or Term Loan Commitment.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means any and all "Collateral", as defined in any
applicable Security Document.
"Collateral Agent" means Chase, in its capacity as collateral agent
for the Lenders hereunder.
"Collateral and Guarantee Requirement" means, at any time, that the
following requirements shall be satisfied (to the extent such requirements are
stated to be applicable at the time under clause (a) or (b) below):
(a) at all times on and after the Effective Date:
(i) the Guarantee Agreement (or a supplement thereto) shall
have been executed by the Company and each Domestic Subsidiary
existing at such time, shall have been delivered to the Collateral
Agent and shall be in full force and effect;
(ii) one or more Pledge Agreements (or supplements thereto)
shall have been duly executed and delivered by the Company and each
Domestic Subsidiary existing at such time and directly owning any
outstanding Equity Interests or any Indebtedness, and there shall
have been duly and validly pledged to the Collateral Agent
thereunder, for the ratable benefit of the Secured Parties (A) all
the outstanding Equity Interests (other than Equity Interests in any
Foreign Subsidiary) owned directly by the Company or any Domestic
Subsidiary, (B) 65% of the outstanding voting Equity Interests, and
100% of the outstanding non-voting Equity Interests (or, in each
case, such lesser percentages as shall be owned by the Company and
the Domestic Subsidiaries) in each Foreign Subsidiary owned in whole
or in part directly by the Company or any Domestic Subsidiary and
(C) all Indebtedness that is owed to the Company or any Domestic
Subsidiary; and any certificates, promissory notes or other
instruments representing the Equity Interests or Indebtedness
pledged or subjected to a charge under the Pledge Agreements,
accompanied by stock powers or other instruments of transfer
endorsed in blank, shall be in the actual possession of the
Collateral Agent and all other steps required under applicable law
or requested by the Collateral Agent to ensure that the Pledge
Agreements create valid, first priority, perfected Liens on all the
Collateral subject thereto shall have been taken;
(iii) one or more Security Agreements (or supplements thereto)
shall have been duly executed and delivered by the Company and each
Domestic Subsidiary
<PAGE>
16
existing at such time and there shall have been subjected to
security interests thereunder securing the Obligations all the
assets of each such Person in which a security interest can be
created under the UCC, and all documents and instruments, including
UCC financing statements, required by law or reasonably requested by
the Collateral Agent to be filed, registered or recorded to create
the security interests intended to be created by the Security
Agreements and perfect such Liens to the extent required by, and
with the priority required by, the Security Agreements, shall have
been filed, registered or recorded (or arrangements satisfactory to
the Collateral Agent for such filing, registration or recording
shall have been made);
(iv) the Administrative Agent shall have received, on or prior
to the later of the 30th day after the acquisition by the Company or
a Domestic Subsidiary of any Mortgaged Property and the 10th day
after the Effective Date, (A) counterparts of a Mortgage with
respect to such Mortgaged Property duly executed and delivered by
the record owner of such Mortgaged Property, (B) in the case of each
Mortgaged Property located in the United States with a book or fair
market value in excess of $2,000,000, a policy or policies of title
insurance issued by a nationally recognized title insurance company
insuring the Lien of each such Mortgage as a valid first Lien on the
Mortgaged Property described therein, free of any other Liens except
as expressly permitted by Section 6.02, together with such
endorsements, coinsurance and reinsurance as the Administrative
Agent or the Required Lenders may reasonably request, and (C) such
surveys, abstracts, appraisals, legal opinions and other documents
as the Administrative Agent or the Required Lenders may reasonably
request with respect to any such Mortgage or Mortgaged Property;
(v) the Indemnity, Subrogation and Contribution Agreement (or
a supplement thereto) shall have been executed by the Company and
each Domestic Subsidiary party to the Guarantee Agreement or any
Pledge Agreement, Security Agreement or Mortgage, shall have been
delivered to the Collateral Agent and shall be in full force and
effect; and
(vi) each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the
granting by it of the Liens thereunder; and
(b) at all times when there shall be one or more Foreign
Subsidiaries that are Foreign Borrowers under this Agreement:
(i) the Guarantee Agreement (or a supplement thereto) shall
have been executed by each Foreign Subsidiary that is a direct or
indirect parent of any such Foreign Borrower (a "Foreign Parent")
(it being understood that each Foreign Parent will guarantee only
the Obligations of Foreign Borrowers that are its subsidiaries),
shall have been delivered to the Collateral Agent and shall be in
full force and effect;
<PAGE>
17
(ii) one or more Pledge Agreements (or supplements thereto)
shall have been duly executed and delivered by each Foreign Borrower
and each Foreign Parent of such Foreign Borrower existing at such
time and directly owning any outstanding Equity Interests or any
Indebtedness, and there shall have been duly and validly pledged to
the Collateral Agent under the Pledge Agreement, for the ratable
benefit of the Secured Parties, (A) all the Equity Interests in such
Foreign Borrower, each Foreign Parent of such Foreign Borrower and
each Subsidiary directly owned in whole or in part by such Foreign
Borrower or any such Foreign Parent, including any such Equity
Interests owned by the Company and the Domestic Subsidiaries that
are not pledged pursuant to clause (a)(ii) above and (B) all the
Indebtedness that is owed to such Foreign Borrower or a Foreign
Parent (it being understood that the Equity Interests and
Indebtedness referred to in this clause (ii) will secure only the
Obligations of such Foreign Borrower); and any certificates,
promissory notes or other instruments representing such Equity
Interests or Indebtedness, accompanied by stock powers or other
instruments of transfer endorsed in blank, shall be in the actual
possession of the Collateral Agent and all other steps required
under applicable law or requested by the Collateral Agent to ensure
that the Pledge Agreements create valid, first priority, perfected
Liens on all the Collateral subject thereto shall have been taken;
(iii) one or more Security Agreements (or supplements thereto)
shall have been duly executed and delivered by each Foreign Borrower
or Foreign Parent of such Foreign Borrower existing at such time and
there shall have been subjected to security interests thereunder
securing the Obligations of such Foreign Borrower (but not any
obligations of the Company or any Domestic Subsidiary) all the
personal property or fixtures (within the meaning of the UCC) of
such Person in which a security interest can be created under the
laws of each applicable jurisdiction, with such exceptions as the
Collateral Agent may approve in its sole discretion, and without
liability to any party hereto, taking into account the cost and
difficulty involved in creating or perfecting any such security
interest and the benefits to the Lenders that would result
therefrom, and all documents and instruments required by law or
reasonably requested by the Collateral Agent to be filed, registered
or recorded to create the security interests intended to be created
by the Security Agreements and perfect such Liens to the extent
required by, and with the priority required by, the Security
Agreements, shall have been filed, registered or recorded (or
arrangements satisfactory to the Collateral Agent for such filing,
registration or recording shall have been made); and
(iv) the Administrative Agent shall have received (A)
counterparts of a Mortgage with respect to each Mortgaged Property
of each Foreign Borrower or Foreign Parent of such Foreign Borrower,
duly executed and delivered by the record owner of such Mortgaged
Property and securing the Obligations of such Foreign Borrower (but
not any obligations of the Company or any Domestic Subsidiary), and
(B) such surveys, abstracts, appraisals, legal opinions and other
documents as the Administrative Agent or the Required Lenders may
reasonably request with respect to any such Mortgage or Mortgaged
Property.
<PAGE>
18
Notwithstanding any of the foregoing provisions of this definition, if the
Company or any Subsidiary shall be using commercially reasonable efforts to
create or perfect any pledge of Equity Interests in or Indebtedness of any
Foreign Subsidiary, the failure to have created or perfected such pledge shall
not, in and of itself, prevent the Collateral and Guarantee Requirement from
being satisfied until (x) the later of (i) the 90th day after the Effective Date
and (ii) the 90th day after the acquisition of such Collateral by the Company or
a Domestic Subsidiary or (y) if, in the judgment of the Collateral Agent, the
Company is endeavoring in good faith to satisfy the Collateral and Guarantee
Requirement, the 180th day after the acquisition of such Collateral by the
Company or a Domestic Subsidiary.
"Commitment" means a Revolving Commitment, a Foreign Borrower
Commitment or a Term Loan Commitment, or any combination thereof (as the context
requires).
"Company" means Benchmark Electronics, Inc., a Texas corporation.
"Consolidated EBITA" means, for any period, the EBITA of the Company
and its Restricted Subsidiaries for such period determined on a consolidated
basis. Solely for purposes of calculating the Interest Coverage Ratio, but not
for any other purpose, Consolidated EBITA for any period of four fiscal quarters
during which the Acquisition shall have occurred shall be computed on a pro
forma consolidated basis to include the EBITA of the Avex Entities that are
Restricted Subsidiaries.
"Consolidated EBITDA" means, for any period, the EBITDA of the
Company and its Restricted Subsidiaries for such period determined on a
consolidated basis; provided that (i) solely for purposes of calculating the
Leverage Ratio and the Adjusted Leverage Ratio, but not for any other purpose,
Consolidated EBITDA for any period of four fiscal quarters during which the
Acquisition shall have occurred shall be computed on a pro forma consolidated
basis to include the EBITDA of the Avex Entities that are Restricted
Subsidiaries and (ii) solely for purposes of calculating the Leverage Ratio but
not for any other purpose, all references to Restricted Subsidiaries in this
definition and in the definitions referred to herein shall be deemed references
to Subsidiaries.
"Consolidated Net Income" means, for any Person for any period, the
net income (or loss) of such person and its subsidiaries during such period,
calculated and consolidated or combined in accordance with GAAP; provided that
there shall be excluded from such net income (to the extent otherwise included
therein) the following: (i) any non-cash, non-recurring charges, (ii) gains or
losses attributable to Property sales not in the ordinary course of business,
and (iii) the cumulative effect of a change in accounting principles and any
gains or losses attributable to writeups or writedowns of assets.
"Consolidated Net Tangible Assets" means the total assets of the
Company and its Restricted Subsidiaries less, without duplication, (i)
intangible assets including, without limitation, goodwill, research and
development costs, trademarks, trade names, patents, franchises, copyrights,
licenses and like general intangibles, experimental or organizational expense,
unamortized debt discount and expense carried as an asset, all reserves and any
write-up in the book of value of assets made after the closing date (other than
write-ups of assets of a going
<PAGE>
19
concern business made within 12 months after the acquisition of such business),
net of accumulated amortization and (ii) all reserves for depreciation and other
asset valuation reserves (but excluding reserves for federal, state and other
income taxes).
"Consolidated Tangible Net Worth" means, at any time:
(a) the total assets of the Company and its Restricted Subsidiaries
which would be shown as assets on a consolidated balance sheet of the
Company and its Restricted Subsidiaries as of such time prepared in
accordance with GAAP, after eliminating all amounts properly attributable
to minority interests, if any, in the stock and surplus of Restricted
Subsidiaries, minus
(b) the total liabilities of the Company and its Restricted
Subsidiaries which would be shown as liabilities on a consolidated balance
sheet of the Company and its Restricted Subsidiaries as of such time
prepared in accordance with GAAP, minus
(c) the net book amount of all assets of the Company and its
Restricted Subsidiaries (after deducting any reserves applicable thereto)
that would be shown as intangible assets on a consolidated balance sheet
of the Company and its Restricted Subsidiaries as of such time prepared in
accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Current Assets" means all assets of a Person which under GAAP would
be classified as current assets.
"Current Liabilities" means all liabilities of a Person which under
GAAP would be classified as current liabilities, other than current maturities
of Long-Term Indebtedness and the obligation to repay the Revolving Loans.
"Current Ratio" means, on any day, the ratio of (a) the Current
Assets of the Company and its Restricted Subsidiaries to (b) the Current
Liabilities of the Company and its Restricted Subsidiaries, each on a
consolidated basis.
"Debt Service" means, for any period, the sum of (a) Cash Interest
Expense for such period and (b) scheduled principal payments on Total
Indebtedness for such period.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
<PAGE>
20
"Documentation Agent" means Fleet National Bank., in its capacity as
Documentation Agent.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Divisions" means all corporate offices, manufacturing and
warehousing facilities of the Company and its Domestic Subsidiaries located
within the continental United States of America.
"Domestic Subsidiaries" means all Subsidiaries incorporated or
organized under the laws of the United States of America, any State thereof or
the District of Columbia.
"EBITA" means, for any Person for any period, without duplication,
the Consolidated Net Income of such Person for such period plus, to the extent
deducted in determining such Consolidated Net Income, Cash Interest Expense,
amortization, other non-cash, non-recurring charges and income tax expense.
"EBITDA" means, for any Person for any period, without duplication,
the Consolidated Net Income of such Person for such period plus, to the extent
deducted in determining such Consolidated Net Income, Cash Interest Expense,
depreciation, amortization, other non-cash, non-recurring charges and income tax
expense.
"Effective Date" means August 24, 1999.
"Effective Date Transactions" means the Transactions that have
occurred, or that are contemplated or required by this Agreement to have
occurred, on or before the Effective Date and prior to or simultaneously with
the initial Borrowing or issuance of a Letter of Credit hereunder.
"Eligible Account" means, on any date, all Accounts owed to the
Company and its Domestic Divisions on such date that meet the requirements of
this definition. An Account shall not be an Eligible Account unless each of the
following statements is accurate and complete with respect thereto (and the
Company by including such Account in any computation of the Borrowing Base shall
be deemed to represent and warrant to the Administrative Agent, the Issuing Bank
and the Lenders the accuracy and completeness of such statements with respect to
such Account):
(a) Said Account (i) indicates the Company or one of its Domestic
Divisions as sole payee and sole remittance party, (ii) is a binding and
valid obligation of the obligor thereon in full force and effect and (iii)
is denominated in dollars;
(b) Said Account has been invoiced and represents the bona fide sale
and delivery of merchandise, in each case in the ordinary course of
business of the Company or any of its Domestic Divisions in connection
with trade operations;
(c) Said Account is genuine as appearing on its face or as
represented in the books and records of Company or any of its Domestic
Divisions, as applicable;
<PAGE>
21
(d) Said Account is free from claims regarding rescission,
cancelation or avoidance, whether by operation of law or otherwise;
(e) Said Account is net of concessions, offsets or understandings
with the obligor thereon that in any way could reasonably be expected to
adversely affect the payment of said account;
(f) The Account Debtor (i) has not asserted a right of setoff and
(ii) has not disputed its liability (whether by chargeback or otherwise)
or made any claim with respect to the Account or any other Account of the
Company or its Domestic Divisions which has not been resolved;
(g) In the case of any Account arising from invoicing for excess and
obsolete inventory, said account is supported by a purchase order
acknowledging approval and authorization to be invoiced and to make
payment thereon;
(h) Payment of said Account is less than 90 days from the date of
invoicing or less than 60 days past due as determined by the due date
stated on the invoice therefor (or, if said Account is not paid by
reference to an invoice in the ordinary course of business but instead by
reference to the terms of the agreements creating said account, said
Account has not remained unpaid beyond 60 days after the due date
therefor);
(i) The goods giving rise to the Account have been shipped and the
Account does not represent a progress or partial billing or otherwise not
represent a competed sale;
(j) The Account Debtor is not the United States of America or any
department, agency or instrumentality thereof;
(k) If such Account and other Accounts are owed by a creditor of the
Company or any of its Domestic Divisions, the amount of all such Accounts
included as Eligible Accounts shall be the amount by which all such
Accounts exceed the aggregate accounts payable owed by the Company or such
Domestic Subsidiary to such creditor;
(l) The obligor on said Account is not (i) an Affiliate of the
Company or any of the Domestic Divisions, or (ii) an employee of the
Company or any of the Domestic Divisions;
(m) Said account is not payable by an obligor for which 50% or more
of the total accounts owed to the Company or the Domestic Divisions by
such obligor or any of its Affiliates is unpaid more than 90 days past the
invoice date or is more than 60 days past due;
(n) All consents, licenses, approvals or authorizations of, or
registrations or declarations with, any Governmental Authority required to
be obtained, effected or given in connection with the execution, delivery
and performance of said account by each party
<PAGE>
22
obligated thereunder have been duly obtained, effected or given and are in
full force and effect;
(o) The obligor on said Account is not the subject of any bankruptcy
or insolvency proceeding, has not had a trustee or receiver appointed for
all or a substantial part of its property and has not made an assignment
for the benefit of creditors, admitted its inability to pay its debts as
they mature or suspended its business;
(p) In the case of an Account arising from a sale of goods, the
subject goods have been sold to an obligor on a true sale basis on open
account, or subject to contract, and not on a bill and hold, consignment,
on approval or on a "sale or return" basis or subject to any other
repurchase or return agreement, no material part of the subject goods has
been returned, rejected, lost or damaged, and said Account is not
evidenced by chattel paper or an instrument of any kind;
(q) The Account Debtor in respect of such Account (i) has its
principal place of business in the United States of America, (ii) has its
principal place of business in a member country of the Organization for
Economic Cooperation and Development and has a senior debt rating of at
least BBB+ by S&P or a comparable rating from another nationally
recognized rating agency, (iii) is listed on Schedule C hereto or (iv) is
otherwise approved by the Required Lenders; and
(r) Said Account is subject to a valid, first priority perfected
security interest in favor of the Collateral Agent securing the
Obligations;
In determining the amounts of Eligible Accounts, the face amounts of all
Accounts shall, to the extent included therein, be reduced by (i) the amount of
all accrued and actual returns, discounts, claims, credits, credits pending,
accrued and actual price adjustments, freight or finance charges or other
allowances (including any amount that the Company or Domestic Subsidiary may be
obligated to rebate to a customer pursuant to the terms of any agreement or
understanding (written or oral)); (ii) the aggregate amount of all reserves,
limits or deductions provided for in this definition and elsewhere in this
Agreement; and (iii) the aggregate amount of all cash received in respect of
Accounts but not yet applied by the Company or the applicable Domestic
Subsidiary to reduce the amount of the Accounts. If any Eligible Account (other
than an Account for which the Account Debtor has a senior debt rating of at
least BBB+ by S&P or a comparable rating from another nationally recognized
rating agency), when added to all other accounts that are obligations of the
same obligor and its Affiliates, results in a total sum that exceeds 15% of the
total balance then due on all gross Accounts receivable (without giving effect
to any reduction in Eligible Accounts pursuant to this proviso), the amount of
said account in excess of 15% of such total balance then due shall be excluded
from Eligible Accounts. In determining the aggregate amount of Accounts from the
same Account Debtor that are unpaid more than 90 days from the date of invoice
or more than 60 days from the due date pursuant to clause (h) above, there shall
be excluded the amount of any net credit balances relating to the Accounts.
"Eligible Fixed Assets" means, at the time of any determination
thereof, the net book value of the Company's and its Domestic Divisions' Fixed
Assets, determined in accordance with GAAP on a basis consistent with the
Company's and its Domestic Subsidiaries' historical and
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23
current accounting practices; provided that real property for which appraisals
reasonably acceptable to the Administrative Agent have been completed shall be
valued at appraised value (except for the Company's real property located in
Angleton, Texas, which shall be valued at net book value). For purposes of
calculating the Borrowing Base, no Fixed Asset may be included as an "Eligible
Fixed Asset" unless (i) the Company or a Domestic Subsidiary has good and
unencumbered title thereto, (ii) the Administrative Agent on behalf of the
Secured Parties possesses a valid first priority perfected security interest
therein under the Security Documents and (iii) such equipment is in service at
the end of the month for which the Borrowing Base is being determined and is not
construction in progress.
"Eligible Inventory" means, at any date, Inventory of the Company
and its Domestic Divisions, net of any Inventory Reserves, and for which each of
the following statements is accurate and complete (and the Company by including
the Inventory Value of such Inventory in any computation of the Borrowing Base
shall be deemed to represent and warrant to the Administrative Agent, the
Issuing Bank and each Lender the accuracy and completeness of such statements):
(a) No Person other than the Company or its Domestic Divisions has
any direct or indirect ownership interest or title to said Inventory;
(b) Said Inventory is subject to a valid, unencumbered, first
priority perfected security interest in favor of the Collateral Agent
securing the Obligations;
(c) Said Inventory is in good condition, meets all standards imposed
by any Governmental Authority having regulatory authority over it or its
use and/or sale and is currently usable in the normal course of business
of the Company and its Domestic Divisions;
(d) Said Inventory is in the possession of the Company or one of its
Domestic Divisions and is located in the United States or in a contract
warehouse specified on a schedule attached to the Security Agreement and
segregated or otherwise separately identifiable from goods of all others,
if any, stored on the premises;
(e) Said Inventory does not include goods that are used for
demonstrations and display or are held by the Company or its Domestic
Divisions pursuant to a consignment agreement or other agreement whereby
the Company or Domestic Division will not be invoiced for the goods and
payment for the goods will result in a reduced finished good selling
price;
(f) Said Inventory does not represent goods returned or rejected due
to quality issues raised by customers of the Company or its Domestic
Divisions or goods in transit;
(g) Said Inventory is not seconds, thirds, return to vendor, scrap,
stale, defective, obsolete, slow moving or unmerchantable, and otherwise
conforms to the representations and warranties contained in the Loan
Documents;
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24
(h) Said Inventory is not located at an operating facility that the
Company or the applicable Domestic Division plans to close within thirty
(30) days from the date of determination of the most recent Borrowing
Base;
(i) Said inventory is not film, packaging and/or shipping supplies
or materials;
(j) The Inventory Value of said Inventory included in the Borrowing
Base is net of any premium or expedite fee that was not approved and will
not be reimbursed by the customer (other than any such fees to the extent
the aggregate amount thereof included in Inventory Value does not exceed
$400,000);
Without limiting the foregoing, Inventory shall not be Eligible Inventory if any
purchase order, invoice or any other document in connection therewith indicates
that any Person other than the Company or Domestic Subsidiary has any ownership
interest therein.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release or threatened release of any Hazardous
Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Company or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means any shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights to acquire any such equity ownership
interests.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Company, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated
<PAGE>
25
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the filing pursuant to Section 412(d) of the
Code or Section 303(d) of ERISA of an application for a waiver of the minimum
funding standard with respect to any Plan; (d) the incurrence by the Company or
any of its ERISA Affiliates of any liability under Title IV of ERISA with
respect to the termination of any Plan; (e) the receipt by the Company or any
ERISA Affiliate from the PBGC or a plan administrator of any notice relating to
an intention to terminate any Plan or Plans or to appoint a trustee to
administer any Plan; (f) the incurrence by the Company or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Company or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Company or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
VII.
"Excess and Obsolete Reserve" shall equal 50% of the gross amount of
all Raw Materials which are not supported by a specific purchase order from a
customer or Hard Forecast.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender, any Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of a Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction described in clause (a) above and (c) in the case of a
Foreign Lender (other than an assignee pursuant to a request by a Borrower under
Section 2.18(b)), any withholding tax imposed by the United States of America
that (i) is in effect and would apply to amounts payable to such Foreign Lender
at the time such Foreign Lender becomes a party to this Agreement (or designates
a new lending office), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the applicable
Borrower with respect to any withholding tax pursuant to Section 2.16(a), or
(ii) is attributable to such Foreign Lender's failure to comply with Section
2.16(e).
"Existing Facility" means the Amended and Restated Credit Agreement
dated as of February 26, 1999, among the Company, the Lenders thereunder and
Chase, as Issuing Bank and as Administrative Agent.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if
<PAGE>
26
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Company.
"Finished Goods" means completed assemblies which have completed
final testing and are to be sold in the normal course of business and are valued
at standard costs with respect to labor, overhead and direct material costs,
provided that labor and overhead do not comprise more than 25% of the total cost
of the finished assembly.
"Fiscal Quarter" means the fiscal quarter of the Company, ending on
the last day of each March, June, September and December of each year.
"Fixed Assets" means property, plant and equipment.
"Fixed Charge Coverage Ratio" means, for any period, the ratio of
(i) Consolidated EBITDA plus operating lease and rental expenses and less cash
taxes of the Company and its Restricted Subsidiaries for such period to (ii)
Debt Service plus Capital Expenditures plus operating lease and rental expenses
of the Company and its Restricted Subsidiaries for such period.
"Foreign Borrower" means any Borrowing Subsidiary that is a Foreign
Subsidiary.
"Foreign Borrower Commitment" means, with respect to each Fronting
Lender and Foreign Borrower Supplement, the commitment of such Fronting Lender
to make Revolving Loans under Section 2.01(b) and such Foreign Borrower
Supplement, as such commitment may be (a) reduced from time to time pursuant to
Section 2.08 and (b) reduced or increased from time to time pursuant to
assignments by or to such Fronting Lender pursuant to Section 9.04.
"Foreign Borrower Exposure" means, with respect to any Revolving
Lender at any time, such Revolving Lender's Applicable Percentage of the
aggregate principal amounts of the outstanding Revolving Loans made under
Section 2.01(b).
"Foreign Borrower Fronting Fee" shall have the meaning specified in
Section 2.11(c)(ii).
"Foreign Borrower Participation Fee" shall have the meaning
specified in Section 2.11(c)(i).
"Foreign Borrower Supplement" means an agreement in the form of
Exhibit O hereto executed and delivered by one or more Foreign Borrowers, one or
more Fronting Lenders and the Administrative Agent as provided in Section
2.01(d).
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27
"Foreign Lender" means, with respect to any Borrower, any Lender
that is organized under the laws of a jurisdiction other than that in which such
Borrower is located. For purposes of this definition, the United States of
America, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under
the laws of a jurisdiction other than the United States of America or any State
thereof or the District of Columbia.
"Foreign Subsidiary Amount" means an amount equal to the sum of (i)
65% of the net book value of the Accounts owed to Foreign Subsidiaries (other
than Unrestricted Subsidiaries) organized in Approved Jurisdictions, (ii) 35% of
the net book value of the Inventory of Foreign Subsidiaries (other than
Unrestricted Subsidiaries) organized in Approved Jurisdictions and (iii) 40% of
the net book value of Fixed Assets of Foreign Subsidiaries (other than
Unrestricted Subsidiaries) organized in Approved Jurisdictions; provided, that
if the amount under this clause (b) would constitute more than 20% of the
Borrowing Base (calculated using such amount for purposes of clause (d) of the
definition of "Borrowing Base"), the Foreign Subsidiary Amount shall be reduced
to an amount that constitutes no more than 20% of the Borrowing Base (calculated
using such revised amount for purposes of clause (d) of the definition of
"Borrowing Base"). For purposes of computing the Foreign Subsidiary Amount, (i)
the net book value of any Accounts, Inventory or Fixed Assets at any time shall
be deemed to equal the net book value of such assets at the end of the month
prior to the date a completed Borrowing Base Certificate shall have been
delivered under Section 5.01(e) and (ii) amounts expressed in foreign currencies
shall be translated into dollars using the same practices as are used by the
Company in preparing its consolidated financial statements.
"Fronting Lender" means, as to any Foreign Borrower Supplement, each
Revolving Lender that has executed and delivered such Foreign Borrower
Supplement as a Fronting Lender. Any Fronting Lender may, in its discretion,
arrange for one or more Revolving Loans to be made by it under any Foreign
Borrower Supplement to be made by Affiliates of such Fronting Lender, in which
case the term "Fronting Lender" shall include any such Affiliate with respect to
Revolving Loans so made by it.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such
<PAGE>
28
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement substantially in
the form of Exhibit E among the Company, the Guarantors from time to time party
thereto and the Collateral Agent for the benefit of the Secured Parties, as the
same may be amended, modified or supplemented from time to time in accordance
with the provisions hereof.
"Hard Forecast" is communicated in advance or in lieu of a purchase
order from a customer, as stipulated in the customer's contract, and means that
the customer is liable for raw materials purchased on the customer's behalf in
the case that the customer changes or cancels an order.
"Hazardous Materials" means all explosive or radioactive substances
or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services, other than accounts payable in
the ordinary course of business, (e) all Indebtedness of others secured by (or
for which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the Indebtedness secured thereby has been assumed, (f)
all Guarantees by such Person of Indebtedness of others, (g) all Capital Lease
Obligations of such Person, (h) all obligations, contingent or otherwise, of
such Person as an account party in respect of letters of credit and letters of
guaranty and (i) all obligations, contingent or otherwise, of such Person in
respect of bankers' acceptances. The Indebtedness of any Person shall include
the Indebtedness of any other entity (including any partnership in which such
Person is a general partner) to the extent such Person is liable therefor as a
result of such Person's ownership interest in or other relationship with such
entity, except to the extent the terms of such Indebtedness provide that such
Person is not liable therefor.
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29
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement substantially in the form of
Exhibit F among the Company, the Subsidiaries from time to time party thereto
and the Collateral Agent for the benefit of the Secured Parties, as the same may
be amended, modified or supplemented from time to time in accordance with the
provisions hereof.
"Information Memorandum" means the Confidential Information
Memorandum dated July 1999 relating to the Company and the Transactions.
"Intercompany Indebtedness" means any Indebtedness of the Company or
any Subsidiary owed to and held by the Company or any Wholly Owned Subsidiary;
provided that any subsequent issuance or transfer of any Equity Interest which
results in any such Wholly Owned Subsidiary ceasing to be a Wholly Owned
Subsidiary or any subsequent transfer of such Indebtedness (other than to the
Company or another Wholly Owned Subsidiary) shall be deemed, in each case, to
constitute a new incurrence of Indebtedness other than Intercompany Indebtedness
by the issuer thereof.
"Interest Coverage Ratio" means, on any day, the ratio of (a)
Consolidated EBITA for the Rolling Period ending on the then most recent
preceding Quarterly Date to (b) Cash Interest Expense during such Rolling
Period.
"Interest Election Request" means a request by a Borrower to convert
or continue a Revolving Borrowing or Term Borrowing in accordance with Section
2.06.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three or
six months thereafter, as the applicable Borrower may elect; provided, that (a)
if any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day and
(b) any Interest Period that commences on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
last calendar month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period. For purposes hereof, the
date of a Borrowing initially shall be the date on which such Borrowing is made
and thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
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30
"Inventory" means all Raw Materials, Work-in-Process and Finished
Goods held in the normal course of business and as such term is defined in
Section 9.109(4) of the UCC as shown on the Company's perpetual inventory
records or equivalent reporting in accordance with their current and historical
classifications.
"Inventory Reserves" means for the Company and its Domestic
Divisions at any date, an amount equal to the sum of (i) any profits or transfer
price additions accrued in connection with transfers of such Inventory between
the Company and its Domestic Divisions or among Domestic Divisions of the
Company, (ii) any net favorable direct material variances capitalized on the
Company's or its Domestic Division's balance sheet for financial reporting
purposes based on current and historical accounting practices, (iii) the
Angleton Direct Material Purchase Price Reserve, (iv) the Excess and Obsolete
Reserve, (v) the amount which represents cycle count adjustments or any other
amount which represents inventory shrinkage, (vi) warranty or scrap reserves and
(vii) the amount of any reserve maintained by the Company and its Domestic
Divisions which represents written-down, non-saleable or otherwise obsolete
inventory that has not been otherwise excluded from Eligible Inventory.
"Inventory Value" means a dollar amount equal to the lesser of (i)
standard cost excluding "Obsolescence Reserve", calculated or summarized on a
basis consistent with the Company's quarterly SEC reporting and with GAAP and
with the Company's current and historical accounting practices and (ii) the
market value of such Inventory; provided that the portion attributable to labor
and overhead in work-in-process and finished goods does not comprise more than
25% of total cost for these items.
"Issuing Banks" means with respect to Letters of Credit issued on or
after the Effective Date, Chase and up to two other Lenders that may become
Issuing Banks hereunder from time to time by entering into Issuing Bank
Agreements with the Company, each in its capacity as an issuer of Letters of
Credit hereunder, and the successors of any such person in such capacity as
provided in Section 2.04(i). Any Issuing Bank may, in its discretion, arrange
for one or more Letters of Credit to be issued by Affiliates of such Issuing
Bank (provided that the Company has approved such Affiliate, such approval not
to be unreasonably withheld), in which case the term "Issuing Bank" shall
include any such Affiliate with respect to Letters of Credit issued by it.
"Issuing Bank Agreement" means an Issuing Bank Agreement between an
Issuing Bank and the Company substantially in the form of Exhibit M.
"LC Disbursement" means a payment made by an Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Letters of Credit at such time plus (b) the
aggregate amount of all LC Disbursements that have not yet been reimbursed by or
on behalf of the Borrower at such time. The LC Exposure of any Revolving Lender
at any time shall be its Applicable Percentage of the total LC Exposure at such
time.
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31
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to
this Agreement.
"Leverage Ratio" means, on any date, the ratio of (a) Total
Indebtedness as of such date to (b) Consolidated EBITDA for the period of four
consecutive fiscal quarters of the Company ended on such date (or, if such date
is not the last day of a fiscal quarter, ended on the last day of the fiscal
quarter of the Company most recently ended prior to such date); provided, that
for purposes of determining the Leverage Ratio, all references in the
definitions of Total Indebtedness and Consolidated EBITDA (and in the
definitions used therein) to Restricted Subsidiaries shall be deemed references
to Subsidiaries.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds to leading commercial banks in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities. For the purposes of this Agreement and the other Loan Documents, the
Company or any Subsidiary of the Company shall be deemed to be the owner of any
Property which it has acquired or holds subject to a conditional sale agreement,
financing lease or other arrangement pursuant to which title to the Property has
been retained by or vested in some other Person for security purposes.
"Loan Documents" means this Agreement, each Borrowing Subsidiary
Agreement, each Borrowing Subsidiary Termination, each Foreign Borrower
Supplement, the Guarantee Agreement, the Indemnity, Subrogation and Contribution
Agreement, the other Security Documents, any Issuing Bank Agreement, any
promissory note issued pursuant to Section 2.08 and the Borrowing Base
Certificates.
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32
"Loan Parties" means each Borrower and each Subsidiary that is party
to the Guarantee Agreement or any Security Document.
"Loans" means the loans made by the Lenders to the Borrowers
pursuant to this Agreement.
"Long-Term Indebtedness" means any Indebtedness that, in accordance
with GAAP, constitutes (or, when incurred, constituted) a long-term liability.
"Material Adverse Effect" means the result of one or more events,
changes or effects which, individually or in the aggregate, could reasonably be
expected to have a material adverse effect on (a) the business, operations,
assets, liabilities, condition (financial or otherwise) or results of operations
of the Company on an individual basis, or the Company and its Subsidiaries,
taken as a whole (after giving effect to the Transactions) or (b) the validity
or enforceability of any of the documents entered into in connection with the
Transactions (including the Loan Documents) or the rights, remedies and benefits
available to the parties thereunder.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Company and its Subsidiaries in an aggregate principal
amount exceeding $5,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of the Company or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Company or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage" means a mortgage, deed of trust, assignment of leases and
rents, leasehold mortgage or other security document granting a Lien on any
Mortgaged Property to secure the Obligations. Each Mortgage shall be
satisfactory in form and substance to the Collateral Agent.
"Mortgaged Property" means each parcel of real property and the
improvements thereto owned by any Borrower, any Domestic Subsidiary or any
Foreign Subsidiary that is a direct or indirect parent of a Borrower.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event, (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by the Company to
third parties (other than Affiliates) in connection with such event, (ii) in the
case of a sale, transfer or other disposition of an asset (including pursuant to
a sale and leaseback transaction or a casualty or a condemnation or similar
proceeding), the amount of all payments required to be made by the Company as a
result of
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33
such event to repay Indebtedness (other than Loans) secured by such asset or
otherwise subject to mandatory prepayment as a result of such event, and (iii)
the amount of all taxes paid (or reasonably estimated to be payable) by the
Company for the year in which such event occurred and that are directly
attributable to such event, and the amount of any reserves established by the
Company to fund contingent liabilities reasonably estimated to be payable as a
direct result of or with respect to assets transferred in such event, (in each
case, as determined reasonably and in good faith by the chief financial officer
of the Company).
"Net Worth" means, at any time and from time to time, the net worth
of the Company and its Subsidiaries on a consolidated basis, determined in
accordance with GAAP.
"Obligations" means (a) the due and punctual payment by the
Borrowers or the applicable Loan Parties of (i) the principal of and premium, if
any, and interest (including interest accruing during the pendency of any
bankruptcy, insolvency, receivership or other similar proceeding, regardless of
whether allowed or allowable in such proceeding) on the Loans, when and as due,
whether at maturity, by acceleration, upon one or more dates set for prepayment
or otherwise, (ii) each payment required to be made by the Borrowers under this
Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement of disbursements, interest thereon and
obligations to provide cash collateral and (iii) all other monetary obligations,
including fees, costs, expenses and indemnities, whether primary, secondary,
direct, contingent, fixed or otherwise (including monetary obligations incurred
during the pendency of any bankruptcy, insolvency, receivership or other similar
proceeding, regardless of whether allowed or allowable in such proceeding), of
the Loan Parties to the Secured Parties under this Agreement and the other Loan
Documents, (b) the due and punctual payment and performance of all covenants,
agreements, obligations and liabilities of the Loan Parties, monetary or
otherwise, under or pursuant to this Agreement and the other Loan Documents and
(c) the due and punctual payment of all obligations of the Company under each
Hedging Agreement entered into (i) prior to the Effective Date with any
counterparty that is a Lender (or an Affiliate thereof) on the date hereof or
(ii) on or after the Effective Date with any counterparty that is a Lender (or
an Affiliate thereof) at the time such Hedging Agreement is entered into.
"Original Credit Agreement" means the Credit Agreement dated as of
August 24, 1999, among the Company, Citicorp USA as documentation agent, Bank of
America NA, Bank One Texas NA, and SunTrust Bank, Atlanta, each as co-agents,
Chase Bank of Texas, National Association, as administrative agent, collateral
agent and issuing bank and the Lenders party thereto.
"Other Taxes" means any and all present or future recording, stamp,
documentary, excise, transfer, sales, property or similar taxes, charges or
levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Perfection Certificate" means a certificate in the form of Exhibit
C or any other form approved by the Collateral Agent.
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34
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 90 days or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere
with the ordinary conduct of business of the Company or any Subsidiary;
(g) any obligations or duties affecting any of the property of the
Company or the Subsidiaries to any municipality or public authority with
respect to any franchise, grant, license or permit which do not materially
impair the use of such property for the purposes for which it is held;
(h) Liens arising from precautionary UCC financing statements
regarding operating leases; and
(i) Liens arising out of consignment or similar arrangements for the
sale of goods entered into by the Company or any of its Subsidiaries in
the ordinary course of business.
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to
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35
the extent such obligations are backed by the full faith and credit of the
United States of America), in each case maturing within one year from the
date of acquisition thereof;
(b) investments in commercial paper maturing within one year from
the date of acquisition thereof and having, at such date of acquisition,
the highest credit rating obtainable from S&P or from Moody's;
(c) investments in certificates of deposit, banker's acceptances and
time deposits maturing within 364 days from the date of acquisition
thereof issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any commercial bank
organized under the laws of the United States of America or any State
thereof which (i) has a combined capital and surplus and undivided profits
of not less than $500,000,000 and (ii) has short-term credit ratings of at
least A1 and P1 by S&P and Moody's, respectively;
(d) fully collateralized repurchase agreements with a term of not
more than 30 days for securities described in clause (a) above and entered
into with a financial institution satisfying the criteria described in
clause (c) above; provided that the Company shall take possession of all
securities purchased by the Company or any Subsidiary under repurchase
agreements and shall adhere to customary margin and mark-to-market
procedures with respect to fluctuations in value; and
(e) deposits in money market accounts investing exclusively or
substantially exclusively in investments comprised of clauses (a) through
(d) above.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Company or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pledge Agreements" means (a) a Pledge Agreement substantially in
the form of Exhibit D among the Company, the Subsidiaries from time to time
party thereto and the Collateral Agent and (b) in connection with pledges of
shares of or other equity interests in Foreign Subsidiaries, other pledge
agreements or similar agreements in form and substance satisfactory to the
Collateral Agent, as the same may be amended, modified or supplemented from time
to time in accordance with the provisions hereof.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by Chase as its prime rate in effect at its principal office
in The City of Houston; each change in the Prime Rate shall be effective from
and including the date such change is publicly announced as being effective.
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36
"Proceeds" means the net cash proceeds received by the Borrower from
any issuance of the Acceptable Securities after the Effective Date.
"Qualified Foreign Subsidiary Holding Company" means a Domestic
Subsidiary that does not own any assets other than, or engage in any business or
activity other than the ownership of, Equity Interests of one or more Domestic
or Foreign Subsidiaries and that does not have any Indebtedness or liabilities
other than (a) liabilities incidental to its ownership of such Equity Interests
and (b) liabilities as a Guarantor of the Obligations.
"Quarterly Dates" means the last day of each March, June, September
and December in each year.
"Raw Materials" means any raw materials to be used or consumed in
the manufacture of goods to be sold in the normal course of business and shall
be valued at standard costs with respect to direct material purchases.
"Register" has the meaning set forth in Section 9.04.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures, Term Loans and unused Commitments representing at least 51% of the
sum of the aggregate Revolving Exposures, outstanding Term Loans and unused
Commitments at such time.
"Restatement Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests in the Company or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit, on
account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests in the Company or any Subsidiary.
"Restricted Subsidiary" means (a) any Domestic Subsidiary and (b)
any Foreign Subsidiary that is not an Unrestricted Subsidiary.
"Revolving Availability Period" means the period from and including
the Effective Date to but excluding the earlier of the Revolving Maturity Date
and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount of
each Lender's Revolving
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37
Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance
pursuant to which such Lender shall have assumed its Revolving Commitment, as
applicable. The aggregate amount of the Lenders' Revolving Commitments on the
Restatement Effective Date is $175,000,000.
"Revolving Exposure" means, with respect to any Lender at any time,
the sum of (a) the outstanding principal amount of such Lender's Revolving
Loans, (b) such Lender's Foreign Borrower Exposure and (c) such Lender's LC
Exposure, in each case at such time.
"Revolving Lender" means a Lender with a Revolving Commitment or, if
the Revolving Commitments have terminated or expired, a Lender with Revolving
Exposure.
"Revolving Loan" means a Loan made pursuant to clause (a) of Section
2.01.
"Revolving Maturity Date" means September 30, 2004.
"Rolling Period" means any period of four consecutive Fiscal
Quarters (or, if less, the number of full Fiscal Quarters subsequent to the
Effective Date).
"S&P" means Standard & Poor's Rating Services.
"Scheduled Indebtedness" means all Indebtedness incurred under the
Existing Facility or listed on Schedule B.
"Secured Parties" means the Administrative Agent, the Collateral
Agent, each Lender, the Issuing Bank and each other person to which any of the
Obligations is owed.
"Security Agreements" means (a) a Security Agreement substantially
in the form of Exhibit G among the Company, the Domestic Subsidiaries from time
to time party thereto and the Collateral Agent for the benefit of the Secured
Parties and (b) in connection with the creation of security interests in the
assets of Foreign Subsidiaries, other security agreements or similar agreements
in form and substance satisfactory to the Collateral Agent, as the same may be
amended, modified or supplemented from time to time in accordance with the
provisions hereof.
"Security Documents" means the Security Agreements, the Pledge
Agreements, the Mortgages and each other security agreement or other instrument
or document executed and delivered pursuant to Section 5.11 or 5.12 to secure
any of the Obligations.
"Seller" means J.M. Huber Corporation, a New Jersey corporation.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject (a) with
respect to the Base CD Rate, for new negotiable nonpersonal time deposits in
dollars of over $100,000 with maturities approximately equal to three months and
(b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently
referred to as "Eurocurrency
<PAGE>
38
Liabilities" in Regulation D of the Board). Such reserve percentages shall
include those imposed pursuant to such Regulation D. Eurodollar Loans shall be
deemed to constitute eurocurrency funding and to be subject to such reserve
requirements without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such Regulation D or
any comparable regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"Stock Purchase Agreement" means the Amended and Restated Stock
Purchase Agreement dated August 12, 1999, between the Seller and the Company.
"Subordinated Indebtedness" means Indebtedness that by its terms is
subordinated to any of the Obligations.
"Subordinated Notes" means the 6% Convertible Subordinated Notes due
2006 issued by the Company in an aggregate principal amount of $80,200,000 under
the Subordinated Note Indenture.
"Subordinated Note Indenture" means the Indenture dated as of August
13, 1999, between the Company and Harris Trust Company of New York, as trustee.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity of which securities or other ownership interests representing more than
50% of the equity or more than 50% of the ordinary voting power or, in the case
of a partnership, more than 50% of the general partnership interests are, as of
such date, owned, controlled or held by the parent or one or more subsidiaries
of the parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Company. For purposes of
the representations and warranties made herein on the Effective Date, the term
"Subsidiary" includes each of the Avex Entities and their subsidiaries.
"Syndication Agent" means Credit Suisse First Boston., in its
capacity as Syndication Agent.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan" means a Loan made by a Lender pursuant to clause (a) of
Section 2.01.
"Term Loan Commitment" means, with respect to each Lender, the
commitment, if any, of such Lender to make a Term Loan hereunder on the
Effective Date, expressed as an amount representing the maximum principal amount
of the Term Loan to be made by such Lender hereunder. The amount of each
Lender's Term Loan Commitment is set forth on Schedule 2.01.
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39
The aggregate amount of the Lenders' Term Loan Commitments on the Effective Date
was $100,000,000.
"Term Loan Lender" means a Lender with a Term Loan Commitment or an
outstanding Term Loan.
"Term Loan Maturity Date" means September 30, 2004.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Total Indebtedness" means, as of any date, the sum of (a) the
aggregate principal amount of Indebtedness of the Company and its Restricted
Subsidiaries outstanding as of such date, in the amount that would be reflected
on a balance sheet prepared as of such date on a consolidated basis in
accordance with GAAP, plus (b) the aggregate principal amount of Indebtedness of
the Company and its Restricted Subsidiaries outstanding as of such date that is
not required to be reflect on a balance sheet in accordance with GAAP,
determined on a consolidated basis; provided that, (i) for purposes of clause
(b) above, the term "Indebtedness" shall not include contingent obligations of
the Company or any Restricted Subsidiary as an account party in respect of any
letter of credit or letter of guaranty unless such letter of credit or letter of
guaranty supports an obligation that constitutes Indebtedness and (ii) solely
for purposes of calculating the Leverage Ratio but not for any other purpose,
all references to Restricted Subsidiaries in this definition and in the
definitions referred to herein shall be deemed references to Subsidiaries.
"Transactions" means the Acquisition, the repayments of Indebtedness
required under Section 4.01, the execution, delivery and performance of the Loan
Documents, the Borrowings and issuances of Letters of credit hereunder and the
creation of the Liens created by the Security Documents.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"UCC" means the Uniform Commercial Code as from time to time in
effect in the State of Texas or, where applicable as to specific Collateral, any
other relevant state.
"Unrestricted Subsidiary" means (i) any Foreign Subsidiary of the
Company that at the time of determination shall have been designated as an
Unrestricted Subsidiary by the
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40
Company in the manner provided below (and shall not subsequently have been
designated as a Restricted Subsidiary) and (ii) any subsidiary of an
Unrestricted Subsidiary. The Company may from time to time designate any Foreign
Subsidiary (other than a Foreign Subsidiary that, immediately after such
designation, shall hold any Indebtedness of or Equity Interest in the Company or
any Restricted Subsidiary) as an Unrestricted Subsidiary, and may designate any
Unrestricted Subsidiary as a Restricted Subsidiary so long as, immediately after
giving effect to such designation, no Default shall have occurred and be
continuing. Any designation by the Company pursuant to this definition shall be
made in an officer's certificate delivered to the Administrative Agent and
containing a certification that such designation is in compliance with the terms
of this definition. Notwithstanding the foregoing, no Borrowing Subsidiary shall
at any time be an Unrestricted Subsidiary.
"Wholly Owned Subsidiary" means any Subsidiary of the Company all
the capital stock or other equity interests of which (other than directors'
qualifying shares and shares held by other than the Persons to the extent such
shares are required by applicable law to be held by a Person other than the
Company or one of its Subsidiaries) is owned by the Company or one or more
Wholly Owned Subsidiaries.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
"Work-in-Process" means goods to be sold in the normal course of
business, which are currently in the process of being manufactured and shall be
valued at standard costs with respect to labor, overhead and direct material
costs; provided that labor and overhead does not comprise more than 25% of the
total value of work-in-process per assembly.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
of this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to
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41
Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e)
the words "asset" and "property" shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights. The phrase
"the date of this Agreement" or "the date hereof" shall mean the date of this
Amended and Restated Credit Agreement.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Company notifies the Administrative Agent that the Company requests
an amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the Company
that the Required Lenders request an amendment to any provision hereof for such
purpose), regardless of whether any such notice is given before or after such
change in GAAP or in the application thereof, then such provision shall be
interpreted on the basis of GAAP as in effect and applied immediately before
such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions
set forth herein, each Lender agrees (i) to make a Term Loan to the Company on
the Effective Date, in dollars, in a principal amount that will not result in
(x) such Lender's Term Loan exceeding such Lender's Term Loan Commitment or (y)
the sum of the aggregate outstanding principal amount of the Loans and the LC
Exposure exceeding the Borrowing Base then in effect and (ii) to make Revolving
Loans to any Borrower from time to time during the Revolving Availability
Period, in dollars, in an aggregate principal amount that will not result in (x)
such Lender's Revolving Exposure exceeding its Revolving Commitment, (y) the sum
of the aggregate outstanding principal amount of the Loans and the LC Exposure
exceeding the Borrowing Base then in effect or (z) in the case of any Foreign
Borrower, the sum of the aggregate outstanding principal amount of the Revolving
Loans of all Foreign Borrowers exceeding $20,000,000. Within the foregoing
limits and subject to the terms and conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving Loans. Amounts repaid in respect of
Term Loans may not be reborrowed. The parties hereto acknowledge that the Term
Loan Commitments terminated on the Effective Date.
(b) Subject to the terms and conditions and relying upon the
representations and warranties set forth herein, each Fronting Lender that is
party to a Foreign Borrower Supplement agrees, severally and not jointly, to
make Revolving Loans to any Foreign Borrower that is a designated Borrower under
such Foreign Borrower Supplement from time to time during the Revolving
Availability Period, in dollars, in an aggregate principal amount that will not
result in (i) such Lender's Revolving Exposure exceeding its Revolving
Commitment, (ii) the aggregate outstanding principal amount of the Loans and the
LC Exposure exceeding the Borrowing Base then in effect, (iii) the aggregate
principal amount of the Revolving Loans made by such Fronting
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42
Lender pursuant to such Foreign Borrower Supplement exceeding such Fronting
Lender's Foreign Borrower Commitment under such Foreign Borrower Supplement or
(iv) the sum of the aggregate outstanding principal amount of the Revolving
Loans of all Foreign Borrowers exceeding $20,000,000; provided that a Fronting
Lender shall not be required to, and shall not, make any Revolving Loan under
this paragraph if the Required Lenders shall have delivered to such Fronting
Lender, not later than two Business Days prior to the date on which any such
Revolving Loan shall have been scheduled to be made, a notice stating that a
Default has occurred and is continuing and directing such Fronting Lender not to
make Revolving Loans.
(c) In the event that any Revolving Borrowing made pursuant to
paragraph (b) above shall be outstanding and (i) the principal of or interest on
such Borrowing shall not be paid within three Business Days after the date on
which it is due and one or more Fronting Lenders holding a majority in interest
of the outstanding Revolving Loans included in such Revolving Borrowing shall
deliver to the Administrative Agent and the Company a request that the
provisions of this paragraph take effect with respect to such Borrowing or (ii)
the Revolving Commitments shall be terminated or the Loans accelerated pursuant
to Article VII, then (A) each Revolving Lender shall acquire at face value a
participation in the Loans included in such Revolving Borrowing and the interest
accrued thereon equal to its Applicable Percentage of such obligations, and
shall pay the purchase price for such participation by wire transfer of
immediately available funds in dollars to the Administrative Agent in the manner
provided in Section 2.05 (and the Administrative Agent shall promptly wire the
amounts so received to the applicable Fronting Lenders ratably in accordance
with their respective Revolving Loans included in such Revolving Borrowings) and
(B) such Loans shall at all times thereafter, until repaid in accordance with
the terms hereof, bear interest at the rate applicable to overdue ABR Borrowings
under Section 2.13(c), and the principal of and interest on such Loans will be
payable at the applicable times and places for overdue ABR Borrowings. The
obligations of the Revolving Lenders to acquire and pay for participations in
Revolving Loans pursuant to this paragraph shall be absolute and unconditional
under any and all circumstances.
(d) One or more Foreign Borrowers, the Administrative Agent and one
or more Revolving Lenders may from time to time enter into one or more Foreign
Borrower Supplements pursuant to which such Revolving Lenders may agree to serve
as Fronting Lenders. Any such Foreign Borrower Supplement shall set forth the
Foreign Borrower Commitment of each Fronting Lender party thereto, the Foreign
Borrowers that may borrow under such Foreign Borrower Supplement, any special
provisions for the times and places at which or the Persons to which Borrowing
Requests are to be delivered, proceeds of Borrowings are to be disbursed or
payments in respect of Borrowings are to be made or for the compensation to be
payable to Fronting Lenders and any other special provisions to be applicable to
Borrowings under such Foreign Borrower Supplement. Any special provisions
referred to in the preceding sentence that shall be included in any Foreign
Borrower Supplement shall be applicable to all Borrowings under such Foreign
Borrower Supplement, notwithstanding any other provision of this Article II to
the contrary (and in the absence of any such special provisions, the applicable
provisions set forth in this Article II shall control).
SECTION 2.02. Loans and Borrowings. (a) Each Term Loan and each
Revolving Loan made pursuant to Section 2.01(a) shall be made as part of a
Borrowing consisting of Loans of the same Class and Type made by the Lenders
ratably in accordance with their
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43
respective Commitments of the applicable Class. Each Revolving Loan made
pursuant to Section 2.01(b) shall be made as part of a Borrowing consisting of
Loans of the same Type made by the Fronting Lenders ratably in accordance with
their respective applicable Foreign Borrower Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing and Term
Borrowing shall be comprised entirely of ABR Loans or Eurodollar Loans as the
applicable Borrower may request in accordance herewith. Each Lender at its
option may make any Eurodollar Loan by causing any domestic or foreign branch or
Affiliate of such Lender to make such Loan; provided that any exercise of such
option shall not affect the obligation of any Borrower to repay such Loan in
accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Borrowing, and at the time that any ABR Borrowing is made, such Borrowing shall
be in an aggregate amount that is an integral multiple of $500,000; provided
that an ABR Revolving Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Revolving Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Type and Class may be outstanding at the
same time; provided that there shall not at any time be more than a total of
five Eurodollar Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, no
Borrower shall be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Revolving Maturity Date or Term Loan Maturity Date, as applicable or if the
requested Interest Period with respect to any Term Loan or portion thereof would
extend beyond any date upon which is due any scheduled principal payment in
respect of Term Loans unless the aggregate principal amount of Term Loans which
are ABR Loans or which are Eurodollar Loans having Interest Periods that will
expire on or before such date equals or exceeds the amount of such principal
payment.
SECTION 2.03. Requests for Borrowings. To request a Revolving
Borrowing or Term Borrowing, the applicable Borrower shall notify the
Administrative Agent of such request by telephone (a) in the case of a
Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three
Business Days before the date of the proposed Borrowing or (b) in the case of an
ABR Borrowing, not later than 11:00 a.m., New York City time, on the date of the
proposed Borrowing. Each such telephonic Borrowing Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) whether the requested Borrowing is to be a Revolving Borrowing
or Term Borrowing and, in the case of a Revolving Borrowing, whether such
Borrowing is to be made under Section 2.01(a) or 2.01(b) (and, if such
Borrowing is to be made under
<PAGE>
44
Section 2.01(b), the Foreign Borrower Supplement pursuant to which such
Borrowing is to be made);
(ii) the aggregate amount of such Borrowing;
(iii) the date of such Borrowing, which shall be a Business Day;
(iv) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(v) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period";
(vi) the Borrower requesting such Borrowing; and
(vii) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements of
Section 2.05(a).
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Revolving Borrowing, then the requesting
Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender or Fronting
Lender, as the case may be, of the details thereof and of the amount of such
Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Letters of Credit. (a) General. Subject to the terms
and conditions set forth herein, the Company may request the issuance of Letters
of Credit for its own account or for the joint and several account of the
Company and a Subsidiary, in a form reasonably acceptable to the Administrative
Agent and the applicable Issuing Bank, at any time and from time to time during
the Revolving Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Company to,
or entered into by the Company with, an Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Company shall hand
deliver or telecopy (or transmit by electronic communication, if arrangements
for doing so have been approved by the applicable Issuing Bank) to the
applicable Issuing Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or
<PAGE>
45
extend such Letter of Credit. If requested by such Issuing Bank, the Company
also shall submit a letter of credit application on such Issuing Bank's standard
form in connection with any request for a Letter of Credit. A Letter of Credit
shall be issued, amended, renewed or extended only if (and upon issuance,
amendment, renewal or extension of each Letter of Credit the Company shall be
deemed to represent and warrant that), after giving effect to such issuance,
amendment, renewal or extension (i) the LC Exposure shall not exceed
$20,000,000, (ii) the total Revolving Exposures shall not exceed the total
Revolving Commitments and (iii) the sum of the aggregate outstanding principal
amount of the Loans and the LC Exposure shall not exceed the Borrowing Base then
in effect.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of any Issuing Bank or the Lenders, each Issuing Bank
hereby grants to each Revolving Lender, and each Revolving Lender hereby
acquires from such Issuing Bank, a participation in such Letter of Credit equal
to such Lender's Applicable Percentage of the aggregate amount available to be
drawn under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to
pay to the Administrative Agent, for the account of each Issuing Bank, such
Lender's Applicable Percentage of each LC Disbursement made by such Issuing Bank
and not reimbursed by the Company on the date due as provided in paragraph (e)
of this Section, or of any reimbursement payment required to be refunded to the
Company for any reason. Each Lender acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Company shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the date that
such LC Disbursement is made, if the Company shall have received notice of such
LC Disbursement prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Company prior to such time on such
date, then not later than 12:00 noon, New York City time, on the Business Day
immediately following the day that the Company receives such notice. If the
Company fails to make such payment when due, the Administrative Agent shall
notify each Revolving Lender of the applicable LC Disbursement, the payment then
due from the Company in respect thereof and such Lender's Applicable Percentage
thereof. Promptly following receipt of such notice, each Revolving Lender shall
pay to the Administrative Agent its Applicable Percentage of the payment then
due from the Company, in the same manner as provided in Section 2.05 with
respect to Loans made by such Lender (and Section 2.05 shall apply, mutatis
mutandis, to the payment obligations of the Revolving Lenders), and the
Administrative Agent shall promptly pay to the applicable Issuing Bank the
amounts so
<PAGE>
46
received by it from the Revolving Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Company pursuant to this paragraph,
the Administrative Agent shall distribute such payment to such Issuing Bank or,
to the extent that Revolving Lenders have made payments pursuant to this
paragraph to reimburse such Issuing Bank, then to such Lenders and the Issuing
Bank as their interests may appear. Any payment made by a Revolving Lender
pursuant to this paragraph to reimburse an Issuing Bank for any LC Disbursement
shall not constitute a Loan and shall not relieve the Company of its obligation
to reimburse such LC Disbursement.
(f) Obligations Absolute. The Company's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by any Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Company's obligations hereunder. Neither
the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of any
Issuing Bank; provided that the foregoing shall not be construed to excuse any
Issuing Bank from liability to the Company to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Company to the extent permitted by applicable law) suffered by the
Company that are caused by any Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), such
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, each
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. Each Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Company by telephone (confirmed by
telecopy) of such demand for payment and whether the
<PAGE>
47
Issuing Bank has made or will make an LC Disbursement thereunder; provided that
any failure to give or delay in giving such notice shall not relieve the Company
of its obligation to reimburse the Issuing Bank and the Revolving Lenders with
respect to any such LC Disbursement.
(h) Interim Interest. If any Issuing Bank shall make any LC
Disbursement, then, unless the Company shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Company reimburses such LC Disbursement,
at the rate per annum then applicable to ABR Revolving Loans; provided that, if
the Company fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Revolving
Lender pursuant to paragraph (e) of this Section to reimburse the Issuing Bank
shall be for the account of such Lender to the extent of such payment.
(i) Replacement of an Issuing Bank. Any Issuing Bank may be replaced
at any time by written agreement among the Company, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of an Issuing Bank. At
the time any such replacement shall become effective, the Company shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.11(b). From and after the effective date of any such replacement, (i)
the successor Issuing Bank shall have all the rights and obligations of the
Issuing Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of an Issuing Bank hereunder, the replaced Issuing Bank shall remain
a party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such replacement, but shall not be required to issue additional Letters
of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
be continuing, on the Business Day that the Company receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Revolving Lenders with LC Exposure representing greater
than 50% of the total LC Exposure) demanding the deposit of cash collateral
pursuant to this paragraph, the Company shall deposit in an account with the
Administrative Agent, in the name of the Administrative Agent and for the
benefit of the Lenders, an amount in cash equal to the LC Exposure as of such
date plus any accrued and unpaid interest thereon; provided that the obligation
to deposit such cash collateral shall become effective immediately, and such
deposit shall become immediately due and payable, without demand or other notice
of any kind, upon the occurrence of any Event of Default with respect to the
Company described in clause (h) or (i) of Article VII. The Company also shall
deposit cash collateral pursuant to this paragraph as and to the extent required
by Section 2.10(b) and (c), and any such cash collateral so deposited and held
by the Administrative Agent hereunder shall constitute part of the Borrowing
Base for purposes of determining compliance with Section 2.10(b) and (c). Each
such deposit shall be held by the Administrative Agent as collateral for the
payment and performance of the obligations of the Company under this Agreement.
The Administrative Agent shall have exclusive dominion and control, including
the exclusive right of withdrawal, over such
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48
account. Other than any interest earned on the investment of such deposits,
which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Company's risk and expense, such deposits shall
not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse any Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Company for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Company under this Agreement. If the Company is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Company within three Business Days after all
Events of Default have been cured or waived. If the Company is required to
provide an amount of cash collateral hereunder pursuant to Section 2.10(b), such
amount (to the extent not applied as aforesaid) shall be returned to the Company
as and to the extent that, after giving effect to such return, the Company would
remain in compliance with Section 2.10(b) and no Default shall have occurred and
be continuing.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 1:00 p.m., New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders. The Administrative Agent will make such Loans available
to the applicable Borrower by promptly crediting the amounts so received, in
like funds, to an account of such Borrower maintained with the Administrative
Agent in New York City and designated by such Borrower in the applicable
Borrowing Request; provided that ABR Revolving Loans made to finance the
reimbursement of an LC Disbursement as provided in Section 2.04(e) shall be
remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to any Borrowing that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such share available on such date in
accordance with paragraph (a) of this Section and may, in reliance upon such
assumption, make available to the applicable Borrower a corresponding amount. In
such event, if a Lender has not in fact made its share of the applicable
Borrowing available to the Administrative Agent, then the applicable Lender and
the Borrower severally agree to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of
such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to ABR Loans. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in such
Borrowing.
SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing and
Term Borrowing initially shall be of the Type specified in the applicable
Borrowing Request and, in the case of a Eurodollar Borrowing, shall have an
initial Interest Period as specified in such Borrowing Request. Thereafter, the
applicable Borrower may elect to convert such Borrowing to a different
<PAGE>
49
Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the applicable
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Revolving Borrowing of the Type resulting from such
election to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the applicable Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02 and paragraph
(f) of this Section:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the applicable Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is
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50
continuing (i) no outstanding Borrowing may be converted to or continued as a
Eurodollar Borrowing and (ii) unless repaid, each Eurodollar Borrowing shall be
converted to an ABR Borrowing at the end of the Interest Period applicable
thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, (i) the Term Loan Commitments shall permanently terminate
at 5:00 p.m., New York City time, on the Effective Date and (ii) the Revolving
Commitments and the Foreign Borrower Commitments shall permanently terminate on
the Revolving Maturity Date.
(b) The Company may at any time terminate, or from time to time
reduce, the Revolving Commitments or any Foreign Borrower Commitment; provided
that (i) each reduction of the Revolving Commitments shall be in an amount that
is an integral multiple of $5,000,000 and (ii) the Company shall not terminate
or reduce the Revolving Commitments or any Foreign Borrower Commitment if, after
giving effect to any concurrent prepayment of the Revolving Loans in accordance
with Section 2.10, the sum of the Revolving Exposures would exceed the total
Revolving Commitments.
(c) The Company shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section, at least three Business Days prior to the effective date of such
termination or reduction, specifying such election and the effective date
thereof. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Company pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Revolving Commitments delivered by the Company may state that
such notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Company (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Revolving
Commitments shall be permanent. Each reduction of the Revolving Commitments
shall be made ratably among the Lenders in accordance with their respective
Revolving Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) Each
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan of such Lender on the Revolving Maturity Date and (ii) to the
Administrative Agent for the account of each Lender the then unpaid principal
amount of each Term Loan of such Lender as provided in Section 2.09.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of each Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrowers to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
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51
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima facie evidence of the
existence and amounts of the obligations recorded therein; provided that the
failure of any Lender or the Administrative Agent to maintain such accounts or
any error therein shall not in any manner affect the obligation of any Borrower
to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans of any Class made by it be
evidenced by a promissory note. In such event, the applicable Borrower shall
prepare, execute and deliver to such Lender a promissory note payable to the
order of such Lender (or, if requested by such Lender, to such Lender and its
registered assigns) and in a form approved by the Administrative Agent and the
Company. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.04)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.09. Amortization of Term Loans. (a) Subject to adjustment
pursuant to paragraph (d) of this Section, the Company shall repay the Term
Borrowings in 20 consecutive quarterly installments, payable on December 31,
1999 and on each Quarterly Date thereafter, in the quarterly and annual
aggregate principal amounts set forth opposite the applicable period listed
below:
- --------------------------------------------------------------------------------
Period Quarterly Payment Annual Amount
------ ----------------- -------------
- --------------------------------------------------------------------------------
1999 $3,000,000 $3,000,000
- --------------------------------------------------------------------------------
2000 4,000,000 16,000,000
- --------------------------------------------------------------------------------
2001 4,500,000 18,000,000
- --------------------------------------------------------------------------------
2002 5,000,000 20,000,000
- --------------------------------------------------------------------------------
2003 5,500,000 22,000,000
- --------------------------------------------------------------------------------
2004 7,000,000 21,000,000
- --------------------------------------------------------------------------------
(b) To the extent not previously paid, all Term Loans shall be due
and payable on the Term Loan Maturity Date.
(c) Any prepayment of a Term Borrowing shall be applied to reduce
the subsequent scheduled repayments of the Term Borrowings to be made pursuant
to this Section ratably; provided that any prepayment made pursuant to Section
2.10(a) shall be applied first, to reduce the next scheduled repayment of the
Term Borrowings to be made pursuant to this Section unless and until such next
scheduled repayment has been eliminated as a result of reductions hereunder and
second, ratably.
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52
(d) Prior to any repayment of any Term Borrowings hereunder, the
Company shall select the Borrowing or Borrowings to be repaid and shall notify
the Administrative Agent by telephone (confirmed by telecopy) of such selection
not later than 11:00 a.m., New York City time, three Business Days before the
scheduled date of such repayment. Each repayment of a Borrowing shall be applied
ratably to the Loans included in the repaid Borrowing. Repayments of Term
Borrowings shall be accompanied by accrued interest on the amount repaid.
SECTION 2.10. Prepayment of Loans. (a) Each Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, in an aggregate amount that is an integral multiple of $5,000,000, subject
to the requirements of this Section.
(b) In the event and on each occasion that the sum of the Revolving
Exposures exceeds the total Revolving Commitments, the Borrowers shall prepay
Revolving Borrowings (or, if no such Borrowings are outstanding, deposit cash
collateral in an account with the Administrative Agent pursuant to Section
2.04(j)) in an aggregate amount equal to such excess.
(c) In the event and on each occasion that the sum of the aggregate
outstanding principal amount of all Term Loans and the aggregate Revolving
Exposure exceeds the Borrowing Base, the Borrowers shall prepay Borrowings (or,
if no such Borrowings are outstanding, deposit cash collateral in an account
with the Administrative Agent pursuant to Section 2.04(j)) in an aggregate
amount equal to such excess.
(d) In the event and on each occasion that any Proceeds are received
by the Company, the Company shall, immediately after such Proceeds are received,
apply such Proceeds to prepay Term Loans until the Term Loans have been paid in
full.
(e) The Company shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York City
time, three Business Days before the date of prepayment or (ii) in the case of
prepayment of an ABR Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date, the principal amount of each
Borrowing or portion thereof to be prepaid and, in the case of a mandatory
prepayment, a reasonably detailed calculation of the amount of such prepayment;
provided that, if a notice of optional prepayment is given in connection with a
conditional notice of termination of the Revolving Commitments as contemplated
by Section 2.07, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.07. Promptly following
receipt of any such notice, the Administrative Agent shall advise the Lenders of
the contents thereof. Each partial prepayment of any Borrowing shall be in an
aggregate amount that is an integral multiple of $5,000,000, except as necessary
to apply fully the required amount of a mandatory prepayment. Each prepayment of
a Borrowing shall be applied ratably to the Loans included in the prepaid
Borrowing. Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.12.
SECTION 2.11. Fees. (a) The Company agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue at the Applicable Rate on the average daily unused amount of the
Revolving Commitment of such Lender during the
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53
period from and including the date of this Agreement to but excluding the date
on which such Revolving Commitment terminates. Accrued commitment fees in
respect of the Revolving Commitments shall be payable in arrears on the last day
of March, June, September and December of each year and on the date on which the
Revolving Commitments terminate, commencing on the first such date to occur
after the Effective Date. All commitment fees shall be computed on the basis of
a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). For purposes of computing
commitment fees with respect to Revolving Commitments, a Revolving Commitment of
a Lender shall be deemed to be used to the extent of the outstanding Revolving
Loans and LC Exposure of such Lender.
(b) The Company agrees to pay (i) to the Administrative Agent for
the account of each Revolving Lender a participation fee with respect to its
participation in each Letter of Credit, which shall accrue at a per annum rate
equal to the Applicable Rate used to compute interest on Eurodollar Revolving
Loans on the average daily amount of the portion of such Lender's LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
attributable to such Letter of Credit during the period from and including the
date of issuance of such Letter of Credit to but excluding the date on which
such Letter of Credit expires or is drawn in full (but which shall in no event
be less than $500 for the period from and including the date of issuance thereof
to but excluding the date on which it expires or is drawn in full), and (ii) to
each Issuing Bank a fronting fee, which shall accrue at the rate of 0.125% per
annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the period from
and including the Effective Date to but excluding the later of the date of
termination of the Revolving Commitments and the date on which there ceases to
be any LC Exposure, as well as each Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder. Participation fees and fronting fees accrued
through and including the last day of March, June, September and December of
each year shall be payable on the third Business Day following such last day,
commencing on the first such date to occur after the Effective Date; provided
that all such fees shall be payable on the date on which the Revolving
Commitments terminate and any such fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. Any other fees
payable to any Issuing Bank pursuant to this paragraph shall be payable within
10 days after demand. All participation fees and fronting fees shall be computed
on the basis of a year of 360 days and shall be payable for the actual number of
days elapsed (including the first day but excluding the last day).
(c) The Company agrees to pay (or to cause the applicable Foreign
Borrower to pay) (i) to the Administrative Agent for the account of each
Revolving Lender a participation fee (an "Foreign Borrower Participation Fee")
with respect to its obligation under Section 2.01(c) to acquire participations
in Revolving Loans, which shall accrue at the Applicable Rate used to determine
the interest rate applicable to Eurocurrency Revolving Loans on the average
daily amount of such Revolving Lender's Foreign Borrower Exposure (excluding any
portion thereof attributable to Revolving Loans in respect of which such Lender
has made, or is required to have made, payments to the applicable Fronting
Lenders as provided in Section 2.01(d)) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to have
any Foreign Borrower Exposure, and (ii) to each Fronting Lender a fronting fee
(an "Foreign Borrower Fronting Fee"), which shall accrue at the rate of .125%
per annum on the daily aggregate
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54
outstanding amount of the Revolving Loans made by such Fronting Lender under
Section 2.01(b) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Revolving Commitments and
the date on which there cease to be any Revolving Loans outstanding. Foreign
Borrower Participation Fees and Foreign Borrower Fronting Fees accrued under
this paragraph through and including the last day of March, June, September and
December of each year shall be payable on the third Business Day following such
last day, commencing on the first such date to occur after the Effective Date;
provided that all such Fees shall be payable on the date on which the Revolving
Commitments terminate and any such Fees accruing after the date on which the
Revolving Commitments terminate shall be payable on demand. All Foreign Borrower
Participation Fees and Foreign Borrower Fronting Fees payable under this
paragraph shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(d) The Company agrees to pay to the Administrative Agent, for its
own account, fees payable in the amounts and at the times separately agreed upon
between the Company and the Administrative Agent.
(e) The Company agrees to pay to the Administrative Agent, for the
account of each Lender who executes and delivers to the Administrative Agent a
signature page to this amendment and restatement by June 23, 2000, an amendment
fee equal to 0.10% of the outstanding Loans, LC Exposure and unused Commitments
of such Lender prior to the Restatement Effective Date.
(f) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to any Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders entitled thereto. Fees
paid shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate plus the Applicable Rate (except
that the Loans comprising each ABR Borrowing made pursuant to Section 2.01(b)
shall bear interest at the Alternate Base Rate).
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate (except that the Loans comprising each
Eurodollar Borrowing made pursuant to Section 2.01(b) shall bear interest at the
Adjusted LIBO Rate for the Interest Period in effect for such Borrowing).
(c) Notwithstanding the foregoing, if any principal of or interest
on any Loan or any fee or other amount payable by any Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Revolving Loans as provided in paragraph (a) of this Section.
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55
(d) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Revolving Commitments; provided that (i) interest
accrued pursuant to paragraph (c) of this Section shall be payable on demand,
(ii) in the event of any repayment or prepayment of any Loan (other than a
prepayment of an ABR Revolving Loan prior to the end of the Revolving
Availability Period), accrued interest on the principal amount repaid or prepaid
shall be payable on the date of such repayment or prepayment and (iii) in the
event of any conversion of any Eurodollar Loan prior to the end of the current
Interest Period therefor, accrued interest on such Loan shall be payable on the
effective date of such conversion.
(e) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate or
Adjusted LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
SECTION 2.13. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that adequate and reasonable means do
not exist for ascertaining the Adjusted LIBO Rate for such Interest
Period; or
(b) the Administrative Agent determines that the Adjusted LIBO Rate
for such Interest Period will not adequately and fairly reflect the cost
to such Lenders of making or maintaining their Loans included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Company and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Company and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Borrowing to, or
continuation of any Borrowing as, a Eurodollar Borrowing shall be ineffective
and (ii) if any Borrowing Request requests a Eurodollar Borrowing, such
Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein;
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56
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Company will pay to such Lender or Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or Issuing Bank, as
the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or Issuing Bank's capital or on the capital of such
Lender's or Issuing Bank's holding company, if any, as a consequence of this
Agreement or the Loans made by, or participations in Letters of Credit held by,
such Lender, or the Letters of Credit issued by such Issuing Bank, to a level
below that which such Lender or the Issuing Bank or such Lender's or Issuing
Bank's holding company could have achieved but for such Change in Law (taking
into consideration such Lender's or Issuing Bank's policies and the policies of
such Lender's or Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Company will pay to such Lender or Issuing
Bank, as the case may be, such additional amount or amounts as will compensate
such Lender or Issuing Bank or such Lender's or Issuing Bank's holding company
for any such reduction suffered.
(c) A certificate of a Lender or Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered to the Company and shall be conclusive absent
manifest error. The Company shall pay such Lender or Issuing Bank, as the case
may be, the amount shown as due on any such certificate within 10 Business Days
after receipt thereof.
(d) Failure or delay on the part of any Lender or Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or Issuing Bank's right to demand such compensation; provided that
the Company shall not be required to compensate a Lender or Issuing Bank
pursuant to this Section for any increased costs or reductions incurred more
than 270 days prior to the date that such Lender or Issuing Bank, as the case
may be, notifies the Company of the Change in Law giving rise to such increased
costs or reductions and of such Lender's or Issuing Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the
payment of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Term Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(e) and is revoked in accordance therewith), (d) the
purchase of participations in any Revolving Loan pursuant to
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57
Section 2.01(c), or (e) the assignment of any Eurodollar Loan other than on the
last day of the Interest Period applicable thereto as a result of a request by
the applicable Borrower pursuant to Section 2.18, then, in any such event, the
applicable Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event. In the case of a Eurodollar Loan, such loss, cost or
expense to any Lender shall be deemed to include an amount determined by such
Lender to be the excess, if any, of (i) the amount of interest which would have
accrued on the principal amount of such Loan had such event not occurred, at the
Adjusted LIBO Rate that would have been applicable to such Loan, for the period
from the date of such event to the last day of the then current Interest Period
therefor (or, in the case of a failure to borrow, convert or continue, for the
period that would have been the Interest Period for such Loan), over (ii) the
amount of interest which would accrue on such principal amount for such period
at the interest rate which such Lender would bid were it to bid, at the
commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the applicable Borrower and shall
be conclusive absent manifest error. The applicable Borrower shall pay such
Lender the amount shown as due on any such certificate within 10 days after
receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of
any obligation of any Loan Party hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if any Loan Party shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Bank (as the case may be) receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions and (iii) such Loan Party
shall pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Company shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Company shall indemnify the Administrative Agent, each
Lender and each Issuing Bank, within 10 Business Days after written demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes paid by
the Administrative Agent, such Lender or Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of any Loan Party
hereunder or under any other Loan Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability delivered
to the Company by a Lender or the Issuing Bank, or by the Administrative Agent
on its own behalf or on behalf of a Lender or Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Company shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental
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58
Authority evidencing such payment, a copy of the return reporting such payment
or other evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which a
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from the Borrower advising it of the availability of
such exemption or reduction and supplying all applicable documentation.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Each Borrower shall make each payment required to be made by it
hereunder or under any other Loan Document (whether of principal, interest, fees
or reimbursement of LC Disbursements, or of amounts payable under Section 2.14,
2.15 or 2.16, or otherwise) prior to the time expressly required hereunder or
under such other Loan Document for such payment (or, if no such time is
expressly required, prior to 12:00 noon, New York City time), on the date when
due, in immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue, New
York, New York, except payments to be made directly to an Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.14,
2.15, 2.16 and 9.03 shall be made directly to the Persons entitled thereto and
payments pursuant to other Loan Documents shall be made to the Persons specified
therein. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment under any Loan Document shall be due
on a day that is not a Business Day, the date for payment shall be extended to
the next succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
All payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans (other than Revolving Loans made pursuant
to Section 2.01(b)), Term Loans, participations in LC Disbursements or in
participations in Revolving Loans made by Fronting Lenders resulting in such
Lender receiving payment of a greater proportion of the aggregate amount of its
Revolving Loans
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59
(other than Revolving Loans made pursuant to Section 2.01(b)), Term Loans,
participations in LC Disbursements or in participations in Revolving Loans made
by Fronting Lenders and accrued interest thereon than the proportion received by
any other Lender, then the Lender receiving such greater proportion shall
purchase (for cash at face value) participations in the Revolving Loans (other
than Revolving Loans made pursuant to Section 2.01(b)), Term Loans,
participations in LC Disbursements of other Lenders or in participations in
Revolving Loans made by Fronting Lenders to the extent necessary so that the
benefit of all such payments shall be shared by the Lenders ratably in
accordance with the aggregate amount of principal of and accrued interest on
their respective Revolving Loans (other than Revolving Loans made pursuant to
Section 2.01(b)), Term Loans, participations in LC Disbursements or in
participations in Revolving Loans made by Fronting Lenders; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by a Borrower pursuant to and in accordance with the express terms
of this Agreement or any payment obtained by a Lender as consideration for the
assignment of or sale of a participation in any of its Loans or participations
in LC Disbursements to any assignee or participant, other than to the Borrower
or any Subsidiary or Affiliate thereof (as to which the provisions of this
paragraph shall apply). Each Borrower consents to the foregoing and agrees, to
the extent it may effectively do so under applicable law, that any Lender
acquiring a participation pursuant to the foregoing arrangements may exercise
against such Borrower rights of set-off and counterclaim with respect to such
participation as fully as if such Lender were a direct creditor of such Borrower
in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
a Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Banks hereunder that such
Borrower will not make such payment, the Administrative Agent may assume that
such Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or the Issuing
Banks, as the case may be, the amount due. In such event, if such Borrower has
not in fact made such payment, then each of the Lenders or the Issuing Banks, as
the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or Issuing Bank with interest
thereon, for each day from and including the date such amount is distributed to
it to but excluding the date of payment to the Administrative Agent, at the
greater of the Federal Funds Effective Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.04(c), 2.04(d) or (e), 2.05(b), 2.17(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if a Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
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60
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrowers
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if a
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Revolving Commitment is being assigned, the Issuing Bank), which consent
shall not unreasonably be withheld, (ii) such Lender shall have received payment
of an amount equal to the outstanding principal of its Loans and participations
in LC Disbursements, accrued interest thereon, accrued fees and all other
amounts payable to it hereunder, from the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Borrowers (in the
case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a material
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.19. Borrowing Subsidiaries. On or after the Effective
Date, the Company may designate any Restricted Subsidiary of the Company as a
Borrowing Subsidiary by delivery to the Administrative Agent of a Borrowing
Subsidiary Agreement executed by such Restricted Subsidiary and the Company, and
upon such delivery such Restricted Subsidiary shall for all purposes of this
Agreement be a Borrowing Subsidiary and a party to this Agreement until the
Company shall have executed and delivered to the Administrative Agent a
Borrowing Subsidiary Termination with respect to such Restricted Subsidiary,
whereupon such Restricted Subsidiary shall cease to be a Borrowing Subsidiary
and a party to this Agreement. Notwithstanding the preceding sentence, no
Borrowing Subsidiary Termination will become effective as to any Borrowing
Subsidiary at a time when any principal of or interest on any Revolving Loan to
such Borrowing Subsidiary or any Letter of Credit issued for the account of such
Borrowing Subsidiary shall be outstanding hereunder; provided that such
Borrowing Subsidiary Termination shall be effective to terminate such Borrowing
Subsidiary's right to make further Borrowings or to request Letters of Credit
under this Agreement. As soon as practicable upon receipt of a Borrowing
Subsidiary Agreement, the Administrative Agent shall send a copy thereof to each
Lender.
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ARTICLE III
Representations and Warranties
Each Borrower represents and warrants to the Lenders:
SECTION 3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by the
Borrowers and constitutes, and each other Loan Document to which any Loan Party
is to be a party, when executed and delivered by such Loan Party, will
constitute, a legal, valid and binding obligation of the Borrowers or such Loan
Party (as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except (i) such as have been
obtained or made and are in full force and effect, (ii) filings necessary to
perfect Liens created under the Loan Documents and (iii) those the failure to
obtain or make which, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Company or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, material agreement or other material instrument binding upon the
Company or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Company or any of its
Subsidiaries and (d) will not result in the creation or imposition of any Lien
on any asset of the Company or any of its Subsidiaries, except Liens created
under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a)
The Company has heretofore furnished to the Lenders its consolidated balance
sheet and statements of income, stockholders equity and cash flows (i) as of and
for the fiscal year ended December 31, 1999, reported on by KPMG LLP,
independent certified public accountants, and (ii) as of and for the fiscal
quarter and the portion of the current fiscal year ended March 31, 2000,
certified by its chief financial officer. Such financial statements present
fairly, in all material respects, the financial position and results of
operations and cash flows of the Company and its consolidated Subsidiaries as of
such dates and for such periods in accordance with GAAP, subject to year-end
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audit adjustments and the absence of footnotes in the case of the statements
referred to in clause (ii) above.
(b) Except as disclosed in the financial statements referred to
above or the notes thereto or in the Information Memorandum and except for the
Disclosed Matters, after giving effect to the Transactions, none of the Company
or its Subsidiaries has, as of the Effective Date, any material contingent
liabilities, unusual long-term commitments or unrealized losses.
(c) Since December 31, 1999, there has been no Material Adverse
Effect.
SECTION 3.05. Properties. (a) Each of the Company and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business (including its Mortgaged
Properties), except for minor defects in title that (i) do not interfere with
its ability to conduct its business as currently conducted or to utilize such
properties for their intended purposes and (ii) individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(b) Each of the Company and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business, and the use thereof by the Company and its
Subsidiaries does not infringe upon the rights of any other Person, except for
any such infringements that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
(c) Schedule 3.05 sets forth the address of each real property that
is owned or leased by the Company or any of its Subsidiaries as of the Effective
Date after giving effect to the Transactions.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Company, threatened
against or affecting the Company or any of its Subsidiaries (i) as to which
there is a reasonable possibility of an adverse determination and that, if
adversely determined, could reasonably be expected, individually or in the
aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, neither the Company nor any of
its Subsidiaries (i) has failed to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) has become subject to any Environmental
Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) Since the date of this Agreement, there has been no change in
the status of the Disclosed Matters that, individually or in the aggregate, has
resulted in, or materially increased the likelihood of, a Material Adverse
Effect.
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SECTION 3.07. Compliance with Laws and Agreements. Each of the
Company and its Subsidiaries is in compliance with all laws, regulations and
orders of any Governmental Authority applicable to it or its property and all
indentures, material agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. Neither the
Company nor any of its Subsidiaries is (a) an "investment company" as defined
in, or subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Company and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) any Taxes that are being contested in good faith by
appropriate proceedings and for which the Company or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $5,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $15,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. Disclosure. The Company has disclosed to the Lenders
all agreements, instruments and corporate or other restrictions to which the
Company or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, taken as a whole, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrowers represent only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
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SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name of,
and the ownership interest of the Company in, each Subsidiary of the Company and
identifies each Subsidiary that is a Subsidiary Loan Party, in each case as of
the Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a description of
all insurance maintained by or on behalf of the Company and its Subsidiaries as
of the Effective Date. As of the Effective Date, all premiums in respect of such
insurance have been paid. The Company believes that the insurance maintained by
or on behalf of the Company and its Subsidiaries is adequate.
SECTION 3.14. Labor Matters. As of the Effective Date, there are no
strikes, lockouts or slowdowns against the Company or any Subsidiary pending or,
to the knowledge of the Company, threatened. The hours worked by and payments
made to employees of the Company and the Subsidiaries have not been in violation
of the Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters. All payments due from the Company or any
Subsidiary, or for which any claim may be made against the Company or any
Subsidiary, on account of wages and employee health and welfare insurance and
other benefits, have been paid or accrued as a liability on the books of the
Company or such Subsidiary. The consummation of the Transactions will not give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which the Company or any
Subsidiary is bound.
SECTION 3.15. Solvency. Immediately after the consummation of the
Transactions to occur on the Effective Date and immediately following the making
of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.16. Senior Indebtedness. The Obligations will constitute
Senior Debt under and as defined in the Subordinated Note Indenture.
SECTION 3.17. Year 2000. Any reprogramming required to permit the
proper functioning, in and following the year 2000, of (a) the computer systems
of the Company and its Subsidiaries and (b) equipment containing embedded
microchips (including systems and equipment supplied by others or with which the
Company's systems interface) and the testing of all such systems and equipment,
as so reprogrammed, will be completed by September 30, 1999, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. The cost to the Company and its
Subsidiaries of such reprogramming and testing and of the reasonably foreseeable
consequences of year 2000 to the Company and its Subsidiaries (including
reprogramming errors and the failure of others'
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65
systems or equipment) will not result in a Default or a Material Adverse Effect.
Except for such of the reprogramming referred to in the preceding sentence as
may be necessary, the computer and management information systems of the Company
and its Subsidiaries are and, with ordinary course upgrading and maintenance,
will continue for the term of this Agreement to be, sufficient to permit the
Company to conduct its businesses without Material Adverse Effect.
SECTION 3.18. Intellectual Property. The Company and each of its
Subsidiary owns, or is licensed to use, all patents, trademarks, tradenames,
service marks, copyrights, technology, know-how and processes (together with all
applications therefor and licenses granting rights therein, "Intellectual
Property") reasonably necessary for the conduct of its business as currently
conducted, except for those the failure to own or be licensed to use which could
not reasonably be expected to result in a Material Adverse Effect. To the
knowledge of the Company, (a) the use of Intellectual Property by the Company
and its Subsidiaries does not infringe on the rights of any person, (b) no
Intellectual Property of the Company or any of its Subsidiaries is being
infringed upon by any Person, and (c) no claim is pending or threatened in
writing challenging the use or the validity of any Intellectual Property of the
Company or any Subsidiary, except for infringements and claims referred to in
the foregoing clauses (a), (b) and (c) that, in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.
The representations and warranties made by the Borrowers on the
Effective Date under the Original Credit Agreement shall survive for all
purposes regardless of the changes effected by this amendment and restatement.
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date. The amendment and
restatement of the Original Credit Agreement effected hereby and the obligations
of the Lenders to make Loans and of the Issuing Banks to issue Letters of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received
from the Company and Lenders constituting the Required Lenders either (i)
a counterpart of this Agreement signed on behalf of such party or (ii)
written evidence satisfactory to the Administrative Agent (which may
include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent, the Collateral Agent, the
Documentation Agent, the Issuing Banks and the Lenders and dated the
Restatement Effective Date) of Bracewell & Patterson, L.L.P., counsel for
the Company, covering such other matters relating to the Loan Parties, the
Loan Documents or the Transactions as the Administrative
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66
Agent shall reasonably request. The Company hereby requests such counsel
to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of each
Loan Party, the authorization of the Transactions and any other legal
matters relating to the Loan Parties, the Loan Documents or the
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
(d) The Administrative Agent shall have received a certificate,
dated the Restatement Effective Date and signed by the President, a Vice
President or a Financial Officer of the Company, confirming compliance
with the conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Restatement Effective Date,
including, to the extent invoiced, reimbursement or payment of all
out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel) required to be reimbursed or paid by any Loan
Party hereunder or under any other Loan Document.
(f) The Collateral and Guarantee Requirement shall have been
satisfied on the Effective Date and shall continue to be satisfied as of
the Restatement Effective Date.
(g) The Administrative Agent shall have received a completed
Borrowing Base Certificate as of May 31, 2000, dated the Restatement
Effective Date and signed by a Financial Officer of the Company.
The Administrative Agent shall notify the Company and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
SECTION 4.02. Each Credit Event. The obligation of each Lender to
make a Loan on the occasion of any Borrowing, and of the Issuing Banks to issue,
amend, renew or extend any Letter of Credit, is subject to receipt of the
request therefor in accordance herewith and to the satisfaction of the following
conditions:
(a) The representations and warranties of each Loan Party set forth
in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance,
amendment, renewal or extension of such Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be
continuing.
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Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrowers on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
SECTION 4.03. Initial Credit Event for each Borrowing Subsidiary.
The obligation of the Lenders to make Loans to any Borrowing Subsidiary and the
obligations of the Issuing Banks to issue Letters of Credit for the account of
any Borrowing Subsidiary are subject to the satisfaction of the following
conditions:
(a) The Administrative Agent (or its counsel) shall have received a
Borrowing Subsidiary Agreement duly executed by such Borrowing Subsidiary
and the other parties thereto.
(b) The Administrative Agent shall have received a favorable written
opinion of counsel for such Borrowing Subsidiary, substantially in the
form of Exhibit B-2 and covering such other matters relating to such
Borrowing Subsidiary and its Borrowing Subsidiary Agreement as the
Administrative Agent shall reasonably request.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of such
Borrowing Subsidiary, the authorization of the Transactions insofar as
they relate to such Borrowing Subsidiary, the satisfaction of the
Collateral and Guarantee Requirement insofar as it relates to the assets
of such Borrowing Subsidiary and any other legal matters relating to such
Borrowing Subsidiary, its Borrowing Subsidiary Agreement or such
Transactions, all in form and substance satisfactory to the Administrative
Agent and its counsel.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall have
been paid in full and all Letters of Credit shall have expired or terminated and
all LC Disbursements shall have been reimbursed, each Borrower covenants and
agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Company will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the Company,
audited consolidated balance sheets and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the
previous fiscal year, of (i) the Company and the consolidated Subsidiaries
and (ii) the Company and the Restricted Subsidiaries as of the end of such
year, all reported on by KPMG LLP or other independent public accountants
of recognized national standing (without a "going concern" or like
qualification or exception
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and without any qualification or exception as to the scope of such audit)
to the effect that such consolidated financial statements present fairly
in all material respects the financial condition and results of operations
of the Company and the consolidated Subsidiaries or the Company and the
consolidated Restricted Subsidiaries, as applicable, on a consolidated
basis in accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three fiscal
quarters of each fiscal year of the Company, the consolidated balance
sheets and related statements of operations, stockholders' equity and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative form
the figures for the previous fiscal year, of (i) the Company and the
consolidated Subsidiaries and (ii) the Company and the Restricted
Subsidiaries, all certified by one of the Company's Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Company and the consolidated Subsidiaries or
the Company and the consolidated Restricted Subsidiaries, as applicable,
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Company (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (ii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.13, 6.14, 6.15, 6.16 and 6.17 and (iii) stating whether any change in
GAAP or in the application thereof has occurred since the date of the
Company's audited financial statements referred to in Section 3.04 and, if
any such change has occurred, specifying the effect of such change on the
financial statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under
clause (a) above, any management letter delivered to the management of the
Company by the accounting firm that reported on such financial statements;
(e) within 10 days after the end of each calendar month, (i) a
completed Borrowing Base Certificate calculating and certifying the
Borrowing Base as of the last day of such calendar month, certified as
complete and correct and signed on behalf of the Company by a Financial
Officer, and (ii) such other supporting documentation and additional
reports with respect to the Borrowing Base as the Administrative Agent
shall reasonably request;
(f) promptly after the same become publicly available, copies of all
periodic and other reports, proxy statements and other materials filed by
the Company or any Subsidiary with the Securities and Exchange Commission,
or any Governmental Authority succeeding to any or all of the functions of
said Commission, or with any national securities exchange, or distributed
by the Company to its shareholders generally, as the case may be; and
(g) promptly following any request therefor, such other information
regarding the operations, business affairs and financial condition of the
Company or any Subsidiary, or
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69
compliance with the terms of any Loan Document, as the Administrative
Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Company will furnish
to the Administrative Agent and each Lender prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Company or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Company and its Subsidiaries in an aggregate
amount exceeding $5,000,000;
(d) the occurrence of any event or any other development by which
the Company or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit,
license or other approval required under any Environmental Law, (ii)
becomes subject to any Environmental Liability, (iii) receives notice of
any claim with respect to any Environmental Liability or (iv) becomes
aware of any basis for any Environmental Liability and in each of the
preceding clauses, which individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect; and
(e) any other development (including the termination of any material
contract) that results in, or could reasonably be expected to result in, a
Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Company setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The Company will
furnish to the Administrative Agent prompt written notice of any change (i) in
any Loan Party's corporate name or in any trade name used to identify it in the
conduct of its business or in the ownership of its properties, (ii) in the
location of any Loan Party's chief executive office, its principal place of
business, any office in which it maintains books or records relating to
Collateral owned by it or any office or facility at which Collateral owned by it
is located (including the establishment of any such new office or facility),
(iii) in any Loan Party's identity or corporate structure or (iv) in any Loan
Party's Federal Taxpayer Identification Number. The Company agrees not to effect
or permit any change referred to in the preceding sentence unless all filings
have been made under the UCC or otherwise that are required in order for the
Administrative Agent to continue at all times following such change to have a
valid, legal and perfected security interest in all the Collateral. The Company
also agrees promptly to notify the Administrative Agent if any material portion
of the Collateral is damaged or destroyed.
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(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Company shall deliver to the Administrative Agent a
certificate of a Financial Officer and the chief legal officer of the Company
(i) setting forth the information required pursuant to Section 1 of the
Perfection Certificate or confirming that there has been no change in such
information since the date of the Perfection Certificate delivered on the
Effective Date or the date of the most recent certificate delivered pursuant to
this Section and (ii) certifying that all UCC financing statements (including
fixture filings, as applicable) or other appropriate filings, recordings or
registrations, including all refilings, rerecordings and reregistrations,
containing a description of the Collateral have been filed of record in each
governmental, municipal or other appropriate office in each jurisdiction
identified pursuant to clause (i) above to the extent necessary to protect and
perfect the security interests under the Security Documents for a period of not
less than 18 months after the date of such certificate (except as noted therein
with respect to any continuation statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. The Company will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business,
except where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect; provided that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.03.
SECTION 5.05. Payment of Obligations. The Company will, and will
cause each of its Subsidiaries to, pay its Indebtedness and other obligations,
including Tax liabilities, before the same shall become delinquent or in
default, except where (a) the validity or amount thereof is being contested in
good faith by appropriate proceedings, (b) the Company or such Subsidiary has
set aside on its books adequate reserves with respect thereto in accordance with
GAAP, (c) such contest effectively suspends collection of the contested
obligation and the enforcement of any Lien securing such obligation and (d) the
failure to make payment pending such contest could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. The Company will, and will
cause each of its Subsidiaries to, keep and maintain all property material to
the conduct of its business in good working order and condition, ordinary wear
and tear excepted, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.07. Insurance. The Company will, and will cause each of
its Subsidiaries to, maintain, with financially sound and reputable insurance
companies (a) insurance in such amounts (with no greater risk retention) and
against such risks as are customarily maintained by companies of established
repute engaged in the same or similar businesses operating in the same or
similar locations and (b) all insurance required to be maintained pursuant to
the Security Documents. The Company will furnish to the Lenders, upon request of
the Administrative Agent, information in reasonable detail as to the insurance
so maintained.
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SECTION 5.08. Books and Records; Inspection and Audit Rights. (a)
The Company will, and will cause each of its Subsidiaries to, keep proper books
of record and account in which full, true and correct entries are made of all
material dealings and transactions in relation to its business and activities.
The Company will, and will cause each of its Subsidiaries to, permit any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, to visit and inspect its properties, to examine and
make extracts from its books and records, and to discuss its affairs, finances
and condition with its officers and independent accountants, all at such
reasonable times and as often as reasonably requested.
(b) The Company will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent (including any
consultants, accountants, lawyers and appraisers retained by the Administrative
Agent) to conduct evaluations and appraisals of the Company's computation of the
Borrowing Base and the assets included in the Borrowing Base, all at such
reasonable times and as often as reasonably requested; provided that, if no
Default shall have occurred and be continuing, no more than one such evaluation
will be requested by the Administrative Agent during any fiscal year. The
Company agrees that an evaluation of the Borrowing Base will be initiated by the
Administrative Agent within six weeks of the Restatement Effective Date. The
Company shall pay the reasonable fees and expenses of any representatives
retained by the Administrative Agent to conduct any such evaluation or
appraisal. The Company also agrees to modify or adjust the computation of the
Borrowing Base (which may include maintaining additional reserves or changing
the definitions of or modifying the eligibility criteria for the components of
the Borrowing Base) to the extent required by the Administrative Agent or the
Required Lenders as a result of any such evaluation or appraisal, in each case
with the consent of the Company (such consent not to be unreasonably withheld).
SECTION 5.09. Compliance with Laws. The Company will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority (including Environmental Laws) applicable to it or
its property, except where the failure to do so, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 5.10. Use of Proceeds and Letters of Credit. The proceeds of
the Borrowings hereunder will be used only for the purposes set forth in the
preamble to this Agreement. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations U and X.
SECTION 5.11. Additional Subsidiaries. If any additional Subsidiary
is formed or acquired after the Effective Date, the Company will, at least five
Business Days before such Subsidiary is formed or acquired, notify the
Administrative Agent and the Lenders thereof and cause the Collateral and
Guarantee Requirement to be satisfied (to the extent applicable) with respect to
such Subsidiary and with respect to any Equity Interest in or Indebtedness of
such Subsidiary owned or to be owned by or on behalf of the Company or any other
Subsidiary.
SECTION 5.12. Further Assurances. The Company will, and will cause
each Subsidiary to, execute any and all further documents, financing statements,
agreements and instruments, and take all such further actions (including the
filing and recording of financing
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statements, fixture filings, mortgages, deeds of trust and other documents),
which may be required under any applicable law, or which the Administrative
Agent or the Required Lenders may reasonably request, to cause the Collateral
and Guarantee Requirement to be and remain satisfied, all at the expense of the
Loan Parties. The Company also agrees to provide to the Administrative Agent
from time to time upon request evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created or
intended to be created by the Security Documents.
SECTION 5.13. Interest Rate and Currency Exchange Rate Protection.
As promptly as practicable, and in any event within 60 days after the Effective
Date, the Company will enter into, and thereafter for a period of not less than
four years will maintain in effect, one or more interest rate protection
agreements on such terms and with such parties as shall be reasonably
satisfactory to the Administrative Agent, the effect of which shall be to fix or
limit the interest cost to the Company with respect to at least 50% of the Term
Loans outstanding from time to time. The Company will also identify currency
exchange rate risks to which the Company and the Subsidiaries are subject from
time to time and enter into one or more exchange rate protection agreements, on
such terms and with such parties as shall be reasonably satisfactory to the
Administrative Agent, to limit such risks. Without limiting the foregoing, in
the event the Company shall use the proceeds of any Borrowing hereunder to make
a loan or advance to any Foreign Subsidiary, such loan or advance will be
denominated in the currency of the jurisdiction in which such Subsidiary has its
principal operations and the Company will enter into one or more exchange rate
protection agreements, on such terms and with such parties as shall be
reasonably satisfactory to the Administrative Agent, to limit the exchange rate
risk to the Company associated with such loan or advance.
SECTION 5.14. Ownership of Subsidiaries. (a) The Company will, and
will cause each of the Subsidiaries to, ensure that all Equity Interests in
Domestic Subsidiaries are owned directly or indirectly at all times only by the
Company or one or more other Domestic Subsidiaries and that all the Equity
Interests of such latter Domestic Subsidiaries are pledged to secure the
Obligations.
(b) As promptly as practicable, and in any event within 30 days
after the Effective Date, the Company will, and will cause each of its
Subsidiaries to, ensure that any Foreign Subsidiary (including each Foreign
Subsidiary acquired in connection with the Acquisition), is owned directly or
indirectly at all times by a Qualified Foreign Subsidiary Holding Company and
that all the Equity Interests of such Qualified Foreign Subsidiary Holding
Company are pledged to secure the Obligations.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable hereunder have been paid in
full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, each Borrower covenants and agrees
with the Lenders that:
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SECTION 6.01. Indebtedness. The Company will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) the Obligations;
(b) Subordinated Notes in a maximum aggregate principal amount of
$80,200,000;
(c) Acceptable Securities; provided that the Proceeds thereof shall
have been applied as required by Section 2.10(d);
(d) Indebtedness existing on the Effective Date and set forth in
Schedule 6.01, and extensions, renewals and replacements of any such
Indebtedness that do not change the obligors liable for the payment
thereof, increase the outstanding principal amount thereof or shorten the
maturity or the weighted average life thereof;
(e) Intercompany Indebtedness (to the extent permitted by Section
6.04);
(f) Guarantees by the Company or any Subsidiary of Indebtedness of
any Restricted Subsidiary, other than Guarantees by the Company or any
Subsidiary that is a Loan Party of Indebtedness of any Subsidiary that is
not a Loan Party;
(g) Indebtedness of the Company, any Domestic Subsidiary or any
Foreign Borrower incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof; provided that (A) such
Indebtedness is incurred prior to or within 90 days after such acquisition
or the completion of such construction or improvement and (B) the
aggregate principal amount of Indebtedness permitted by this clause (g)
shall not exceed $25,000,000 at any time outstanding;
(h) Indebtedness of any Person that becomes a Domestic Subsidiary or
a Foreign Borrower after the Effective Date; provided that (A) such
Indebtedness exists at the time such Person becomes a Domestic Subsidiary
or a Foreign Borrower, as the case may be, and is not created in
contemplation of or in connection with such Person becoming a Domestic
Subsidiary or a Foreign Borrower, as the case may be, and (B) the
aggregate principal amount of Indebtedness permitted by this clause (h)
shall not exceed $5,000,000 at any time outstanding;
(i) Indebtedness of Unrestricted Subsidiaries for which neither the
Company nor any Restricted Subsidiary shall be liable as obligor, under
any Guarantee or otherwise;
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(j) other unsecured Indebtedness in an aggregate principal amount
not exceeding $10,000,000 at any time outstanding; and
(k) other unsecured Indebtedness incurred by Foreign Subsidiaries
for working capital purposes in an aggregate principal amount not
exceeding $2,500,000 at any time outstanding.
SECTION 6.02. Liens. The Company will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, except:
(a) Liens created under the Loan Documents;
(b) Permitted Encumbrances;
(c) any Lien on any property or asset of the Company or any
Subsidiary existing on the Effective Date and set forth in Schedule 6.02;
provided that (i) such Lien shall not apply to any other property or asset
of the Company or any Subsidiary and (ii) such Lien shall secure only
those obligations which it secured on the Effective Date;
(d) any Lien existing on any property or asset prior to the
acquisition thereof by the Company or any Subsidiary or existing on any
property or asset of any Person that shall have become a Subsidiary after
the Effective Date prior to the time such Person shall have become a
Subsidiary; provided that (A) such Lien is not created in contemplation of
or in connection with such acquisition or such Person becoming a
Subsidiary, as the case may be, (B) such Lien shall not apply to any other
property or assets of the Company or any Subsidiary and (C) such Lien
shall secure only those obligations which it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case may
be and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(e) Liens on fixed or capital assets acquired, constructed or
improved by the Company or any Subsidiary, including Liens deemed to exist
in respect of assets subject to Capital Lease Obligations; provided that
(A) such Liens secure Indebtedness permitted by clause (g) of Section
6.01, (B) such Liens and the Indebtedness secured thereby are incurred
prior to or within 180 days after such acquisition or the completion of
such construction or improvement, (C) the Indebtedness secured thereby
does not exceed of the cost of acquiring, constructing or improving such
fixed or capital assets and (D) such Liens shall not apply to any other
property or assets of the Company or any Subsidiary;
(f) Liens securing Intercompany Indebtedness permitted under Section
6.01(e);
(g) extensions, renewals or replacements of any Lien referred to in
clauses (c), (d) and (e); provided that the principal amount of the
Indebtedness or obligations secured thereby is not increased and that any
such extension, renewal or replacement is limited to the assets originally
encumbered thereby;
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(h) Liens on the assets of Unrestricted Subsidiaries securing
Indebtedness permitted under Section 6.01(i); and
(i) additional Liens incurred by the Company and its Subsidiaries so
long as the value of the property subject to such Liens, and the
Indebtedness and other obligations secured thereby, do not exceed
$1,000,000 at any time.
SECTION 6.03. Fundamental Changes. (a) The Company will not, and
will not permit any Subsidiary to, merge into or consolidate with any other
Person, or permit any other Person to merge into or consolidate with it, or
liquidate or dissolve, except that, if at the time thereof and immediately after
giving effect thereto no Default shall have occurred and be continuing (i) any
Person may merge into the Company in a transaction in which the Company is the
surviving corporation, (ii) any Person may merge with or into any Subsidiary in
a transaction in which the surviving entity is a Subsidiary; provided that (A)
if any party to such merger is a Loan Party the surviving Person must also be a
Loan Party and must succeed to all the obligations of such Loan Party under the
Loan Documents and (B) if any party to such merger is a Restricted Subsidiary
the surviving Person shall also be a Restricted Subsidiary unless designated as
an Unrestricted Subsidiary pursuant to the definition of such term and (iii) any
Subsidiary (other than a Loan Party) may liquidate or dissolve if the Company
determines in good faith that such liquidation or dissolution is in the best
interests of the Company and is not materially disadvantageous to the Lenders;
provided that any such merger involving a Person that is not a Wholly Owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 6.04.
(b) The Company will not, and will not permit any of its
Subsidiaries to, engage to any material extent in any business other than
businesses of the type conducted by the Company and its Subsidiaries on the
Effective Date and businesses reasonably related or reasonably incidental
thereto.
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Company will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a Wholly Owned Subsidiary prior to such merger) any Equity
Interests in or evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person
(all the foregoing being collectively called "Investments"), or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person (other than inventory acquired in the ordinary course of
business) that constitute a business unit or are substantial in relation to the
consolidated assets of the Company, except:
(a) the Acquisition;
(b) Permitted Investments;
(c) Investments existing on the Effective Date and set forth on
Schedule 6.04;
(d) Investments existing on the Effective Date in Subsidiaries;
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(e) additional Investments in Persons that, immediately prior to
such investments, are Restricted Subsidiaries;
(f) Investments by Unrestricted Subsidiaries in Persons that,
immediately prior to such investments, are Unrestricted Subsidiaries;
(g) Investments consisting of all the issued and outstanding capital
stock, or all or substantially all the assets, of Persons engaged in lines
of business permitted under Section 6.03(b); provided that (A) no Default
shall have occurred and be continuing at the time any such Investment is
made or would occur as a result thereof and (B) the cash consideration
payable for all such Investments made under this clause (g) after the
Effective Date in the capital stock or assets of other Persons shall not
exceed $20,000,000 in the aggregate;
(h) Guarantees constituting Indebtedness permitted by Section 6.01;
provided that a Subsidiary shall not Guarantee the Subordinated Notes or
any Acceptable Securities;
(i) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes with,
customers and suppliers, in each case in the ordinary course of business;
(j) accounts receivable arising in the ordinary course of business;
(k) investments and loans held by any Subsidiary at the time it
becomes a Subsidiary in a transaction permitted by this Section;
(l) reasonable advances to officers and employees of the Company and
any Subsidiary for travel arising in the ordinary course of business;
(m) loans to officers and employees of the Company or any
Subsidiary, not to exceed $100,000 in the aggregate at any one time
outstanding;
(n) promissory notes and other noncash consideration received by the
Company and its Subsidiaries in connection with any asset sale permitted
hereunder;
(o) advances in the form of prepayments of expenses, so long as such
expenses were incurred in the ordinary course of business and are paid in
accordance with customary trade terms of the Company or any of its
Subsidiaries;
(p) Guarantees by the Company of obligations of Restricted
Subsidiaries incurred in the ordinary course of business and not
constituting Indebtedness; and
(q) other investments, loans or advances made by the Company, any
Domestic Subsidiary or any Foreign Borrower at times when no Default or
Event of Default shall have occurred and be continuing or would occur as a
result thereof and that, taken together with all other investments made
after the Effective Date under this clause (q), would not
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exceed (A) the sum of $5,000,000 and 50% of Consolidated Net Income of the
Company for the period (treated as one accounting period) commencing
January 1, 2000, and ending at the most recent fiscal quarter end for
which financial statements shall have been delivered under Section 5.01(a)
or (b), minus (B) the amount of Restricted Payments made after the
Effective Date pursuant to Section 6.08(a).
SECTION 6.05. Asset Sales, etc. The Company will not, and will not
permit any of its Restricted Subsidiaries to, sell, transfer, lease or otherwise
dispose of any asset, including any Equity Interest, except:
(a) sales of inventory, used or surplus equipment and Permitted
Investments in the ordinary course of business or as expressly permitted
elsewhere in this Agreement;
(b) sales, transfers and dispositions to the Company or a Restricted
Subsidiary; and
(c) sales, transfers and other dispositions of other assets (other
than Equity Interests in Subsidiaries); provided that (x) the aggregate
proceeds from such sales, transfers and other dispositions during any
fiscal year shall not exceed the greater of (A) 10% of Consolidated Net
Tangible Assets as of the beginning of such fiscal year and (B) 10% of
Consolidated Net Income of the Company (excluding Unrestricted
Subsidiaries) for such fiscal year, (y) not more than $2,000,000 of
noncash proceeds shall be received from such sales, transfers and other
dispositions during any fiscal year and (z) the aggregate cash proceeds in
excess of the greater of (A) 5% of Consolidated Net Tangible Assets as of
the beginning of such fiscal year and (B) 5% of Consolidated Net Income of
the Company (excluding Unrestricted Subsidiaries) for such fiscal year
shall be applied to prepay Term Borrowings; provided further, however,
that if the Company shall deliver to the Administrative Agent within 10
days after receipt of such proceeds a certificate of a Financial Officer
to the effect that the Company and the Subsidiaries intend to apply such
proceeds (or a portion thereof specified in such certificate), within one
year after receipt of such proceeds, to acquire real property, equipment
or other tangible assets to be used in the business of the Company and the
Subsidiaries, and certifying that no Default has occurred and is
continuing, and if, pending such application, such proceeds shall be held
in the form of cash or Permitted Investments, then no prepayment shall be
required pursuant to this clause (iii) in respect of such proceeds (or the
portion of such proceeds specified in such certificate, if applicable)
except to the extent such proceeds shall not have been so applied by the
end of such one year period, at which time a prepayment shall be required
in an amount equal to the proceeds not so applied.
SECTION 6.06. Sale and Leaseback Transactions. The Company will not,
and will not permit any of its Restricted Subsidiaries to, enter into any
arrangement, directly or indirectly, whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereinafter acquired, and thereafter rent or lease such property or other
property that it intends to use for substantially the same purpose or purposes
as the property sold or transferred.
SECTION 6.07. Hedging Agreements. The Company will not, and will not
permit any of its Subsidiaries to, enter into any Hedging Agreement, other than
(a) Hedging
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Agreements required by Section 5.13 and (b) Hedging Agreements entered into in
the ordinary course of business to hedge or mitigate risks to which the Company
or such Subsidiary is exposed in the conduct of its business or the management
of its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments in Respect of
Indebtedness. (a) The Company will not, and will not permit any Restricted
Subsidiary to, declare or make, or agree to make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that (i) Restricted Subsidiaries may declare and pay dividends ratably
with respect to their capital stock and (ii) if no Default or Event of Default
has occurred and is continuing or would occur as a result thereof, the Company
may make any Restricted Payment that, taken together with all other Restricted
Payments made after the Effective Date, would not exceed (A) the sum of
$5,000,000 and 50% of Consolidated Net Income of the Company for the period
(treated as one accounting period) commencing January 1, 2000, and ending at the
most recent fiscal quarter end for which financial statements shall have been
delivered under Section 5.01(a) or (b), minus (B) the amount of investments made
after the Effective Date pursuant to Section 6.04(q).
(b) The Company will not, and will not permit any Restricted
Subsidiary to, make or agree to make, directly or indirectly, any payment or
other distribution (whether in cash, securities or other property) of or in
respect of the principal of or interest on any Subordinated Indebtedness, or any
payment or other distribution (whether in cash, securities or other property),
including any sinking fund or similar deposit, on account of the purchase,
redemption, retirement, defeasance, cancelation or termination of any
Subordinated Indebtedness, except scheduled and other mandatory payments of
interest and principal in respect of Subordinated Indebtedness; provided that no
payment shall be made in respect of Subordinated Indebtedness that is prohibited
by the subordination provisions applicable to such Subordinated Indebtedness.
SECTION 6.09. Transactions with Affiliates. The Company will not,
and will not permit any Subsidiary to, sell, lease or otherwise transfer any
property or assets to, or purchase, lease or otherwise acquire any property or
assets from, or otherwise engage in any other transactions with, any of its
Affiliates, except (a) transactions in the ordinary course of business at prices
and on terms and conditions not less favorable to the Company or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Company and the Restricted Subsidiaries
not involving any other Affiliate, (c) transactions among or between
Unrestricted Subsidiaries and (d) any Restricted Payment permitted by Section
6.08.
SECTION 6.10. Restrictive Agreements. The Company will not, and will
not permit any Restricted Subsidiary to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Company or any
Restricted Subsidiary to create, incur or permit to exist any Lien upon any of
its property or assets, or (b) the ability of any Restricted Subsidiary (i) to
pay dividends or other distributions with respect to any shares of its capital
stock, (ii) to make or repay loans or advances to the Company or any other
Restricted Subsidiary, (iii) to Guarantee Indebtedness of the Company or any
other Restricted Subsidiary or (iv) sell, lease or transfer any of its Property
to the Company or any other Restricted Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by
any Loan Document, (ii) the foregoing shall not apply to restrictions and
conditions existing on the Effective Date identified on
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Schedule 6.10 (but shall apply to any extension or renewal of, or any amendment
or modification expanding the scope of, any such restriction or condition),
(iii) the foregoing shall not apply to customary restrictions and conditions
contained in agreements relating to the sale of a Restricted Subsidiary pending
such sale, provided that such restrictions and conditions apply only to the
Restricted Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases and other contracts restricting the
assignment thereof.
SECTION 6.11. Sales and Assignments of Income, Revenues and
Receivables. The Company will not, and will not permit any Restricted Subsidiary
to, sell or assign, with or without recourse, for discount or otherwise, any
income or revenues, including notes and accounts receivable.
SECTION 6.12. Amendment of Material Documents. The Company will not,
and will not permit any Subsidiary to, amend, modify or waive in any respect
materially adverse to the Company or to the rights or interests of the Lenders
any of its rights under the Subordinated Note Indenture or any document
evidencing or governing Acceptable Securities.
SECTION 6.13. Interest Coverage Ratio. The Company will not permit
the Interest Coverage Ratio for any Rolling Period ending during either period
set forth below to be less than the ratio set forth below opposite such period:
Period Ratio
------ -----
Through December 31, 2000 2.00 to 1.00
Thereafter 3.00 to 1.00
SECTION 6.14. Adjusted Leverage Ratio; Leverage Ratio. (a) The
Company will not permit the Adjusted Leverage Ratio as of any date during any
period set forth below to exceed the ratio set forth opposite such period:
Period Ratio
------ -----
Through December 31, 2000 3.50 to 1.00
Thereafter 3.00 to 1.00
; provided, however, that during any period following receipt by the Company,
after the Restatement Effective Date, of Net Proceeds in excess of $50,000,000
in the aggregate from one or more issuances of Equity Interests of the Company,
the Company will not permit the Adjusted Leverage Ratio to exceed 3.00 to 1.00.
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(b) The Company will not permit the Leverage Ratio as of any date during
any period set forth below to exceed the ratio set forth opposite such period:
Period Ratio
------ -----
Through December 31, 2000 3.50 to 1.00
Thereafter 3.00 to 1.00
; provided, however, that during any period following receipt by the Company,
after the Restatement Effective Date, of Net Proceeds in excess of $50,000,000
in the aggregate from one or more issuances of Equity Interests of the Company,
the Company will not permit the Leverage Ratio to exceed 3.00 to 1.00.
SECTION 6.15. Fixed Charge Coverage Ratio. The Company will not
permit the Fixed Charge Coverage Ratio for any Rolling Period ending during
either period set forth below to be less than the ratio set forth below opposite
such period:
Period Ratio
------ -----
Through December 31, 2000 1.00 to 1.00
Thereafter 1.10 to 1.00
SECTION 6.16. Current Ratio. The Company will not permit the Current
Ratio at any time to be less than 1.50 to 1.00.
SECTION 6.17. Minimum Tangible Net Worth. The Company will not
permit Consolidated Tangible Net Worth (excluding Unrestricted Subsidiaries) as
of any date to be less than the sum of (x) 75% of Consolidated Tangible Net
Worth (excluding Unrestricted Subsidiaries) as of the Effective Date plus (y)
50% of Consolidated Net Income of the Company and its Restricted Subsidiaries
(but only to the extent such amount is positive) for fiscal quarters ended after
September 30, 1999 plus (z) 75% of the aggregate Net Proceeds (cash or non-cash)
from the issuance by the Company or any Restricted Subsidiary of Equity
Interests subsequent to the Effective Date.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) any Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment thereof or otherwise;
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(b) any Borrower shall fail to pay any interest on any Loan or any
fee or any other amount (other than an amount referred to in clause (a) of
this Article) payable under this Agreement or any other Loan Document,
when and as the same shall become due and payable, and such failure shall
continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Company or any Subsidiary in or in connection with any Loan
Document or any amendment or modification thereof or waiver thereunder, or
in any report, certificate, financial statement or other document
furnished pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect in any material respect when made or deemed made;
(d) the Company or any Subsidiary shall fail to observe or perform
any covenant or agreement contained in Section 5.02, 5.04 (with respect to
the existence of any Borrower) or 5.10 or in Article VI;
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in any Loan Document (other than those specified in
clause (a), (b) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days after the earlier of (i) the Company's
obtaining knowledge thereof or (ii) written notice thereof from the
Administrative Agent to the Company (which notice will be given at the
request of any Lender);
(f) the Company or any Subsidiary shall fail to make any payment
(whether of principal or interest and regardless of amount) in respect of
any Material Indebtedness, when and as the same shall become due and
payable;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables
or permits (with or without the giving of notice, the lapse of time or
both) the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become
due, or to require the prepayment, repurchase, redemption or defeasance
thereof, prior to its scheduled maturity; provided that this clause (g)
shall not apply to secured Indebtedness that becomes due as a result of
the voluntary sale or transfer of the property or assets securing such
Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Company or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be
entered;
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(i) the Company or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or
other relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to
the institution of, or fail to contest in a timely and appropriate manner,
any proceeding or petition described in clause (h) of this Article, (iii)
apply for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Company or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of
creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(j) the Company or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become
due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $5,000,000 shall be rendered against the Company, any
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 30 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Company or any
Subsidiary to enforce any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in liability of the
Company and its Subsidiaries in an aggregate amount exceeding (i)
$5,000,000 in any year or (ii) $15,000,000 for all periods;
(m) any Lien or guarantee purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not to
be, a valid and perfected Lien on any material portion of the Collateral,
with the priority required by the applicable Security Document, except (i)
as a result of the sale or other disposition of the applicable Collateral
in a transaction permitted under the Loan Documents or (ii) as a result of
the Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it under
any Pledge Agreement; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Company
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Company, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrowers accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrowers; and in case of any
event with respect
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to the Company described in clause (h) or (i) of this Article, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrowers accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Banks hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the Administrative
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Administrative Agent by the terms of the Loan Documents,
together with such actions and powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Company or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth in the Loan Documents. Without limiting the
generality of the foregoing, (a) the Administrative Agent shall not be subject
to any fiduciary or other implied duties, regardless of whether a Default has
occurred and is continuing, (b) the Administrative Agent shall not have any duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated by the Loan Documents
that the Administrative Agent is required to exercise in writing by the Required
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02), and (c) except as
expressly set forth in the Loan Documents, the Administrative Agent shall not
have any duty to disclose, and shall not be liable for the failure to disclose,
any information relating to the Company or any of its Subsidiaries that is
communicated to or obtained by the bank serving as Administrative Agent or any
of its Affiliates in any capacity. The Administrative Agent shall not be liable
for any action taken or not taken by it with the consent or at the request of
the Required Lenders (or such other number or percentage of the Lenders as shall
be necessary under the circumstances as provided in Section 9.02) or in the
absence of its own gross negligence or wilful misconduct. The Administrative
Agent shall not be deemed not to have knowledge of any Default unless and until
written notice thereof is given to the Administrative Agent by the Company or a
Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv) the
validity, enforceability, effectiveness or genuineness of any Loan Document or
any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV
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or elsewhere in any Loan Document, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Company), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, the Issuing Banks and the Company.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Company, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and the Issuing Banks, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Company to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Company and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 9.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not
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taking action under or based upon this Agreement, any other Loan Document or
related agreement or any document furnished hereunder or thereunder.
It is expressly understood that none of the Documentation Agent, the
Syndication Agent nor any Co-Agent shall have any duties or responsibilities
under this Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Company or any Borrowing Subsidiary, to it, or to it
in care of the Company, at 3000 Technology Drive, Angleton, TX, Attention
of: Cary T. Fu (Telecopy No. (409) 848-5269);
(b) if to the Administrative Agent, to it at Chase Bank of Texas,
National Association, Loan and Agency Services Group, 712 Main Street,
Houston, TX 77002, Attention of James Dolphin (Telecopy No. (713)
216-6004), with a copy to The Chase Manhattan Bank, One Chase Manhattan
Plaza, 8th Floor, New York, NY 10081, Attention of Muniram Appanna
(Telecopy No. (212)-552-7490);
(c) if to Chase in its capacity as an Issuing Bank, to it at Chase
Bank of Texas, National Association., Loan and Agency Services Group, 712
Main Street, Houston, TX 77002, Attention of James Dolphin (Telecopy No.
(713) 216-6004), with a copy to The Chase Manhattan Bank, One Chase
Manhattan Plaza, 8th Floor, New York, NY 10081, Attention of Muniram
Appanna (Telecopy No. (212)-552-7490); and
(d) if to any other Lender or Issuing Bank, to it at its address (or
telecopy number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Administrative Agent, the Issuing
Banks and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of
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any rights or remedies that they would otherwise have. No waiver of any
provision of any Loan Document or consent to any departure by any Loan Party
therefrom shall in any event be effective unless the same shall be permitted by
paragraph (b) of this Section, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given.
Without limiting the generality of the foregoing, the making of a Loan or
issuance of a Letter of Credit shall not be construed as a waiver of any
Default, regardless of whether the Administrative Agent, any Lender or any
Issuing Bank may have had notice or knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any
provision hereof or thereof may be waived, amended or modified except, in the
case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Company and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders; provided
that no such agreement shall (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the maturity of any Loan, or any scheduled payment of the
principal amount of any Term Loan under Section 2.09, or the required date of
reimbursement of any LC Disbursement, or any date for the payment of any
interest or fees payable hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.17(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, (v) change any of
the provisions of this Section or the percentage set forth in the definition of
"Required Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each Lender
of such Class, as the case may be), (vi) release all or substantially all the
Guarantors from their Guarantees under the Guarantee Agreement except as
expressly provided in the Guarantee Agreement or Section 9.14, or limit the
liability of the Guarantors in respect of their Guarantee, without the written
consent of each Lender or (vii) release all or substantially all the Collateral
from the Liens of the Security Documents without the written consent of each
Lender; provided further that (A) no such agreement shall amend, modify or
otherwise affect the rights or duties of the Administrative Agent or any Issuing
Bank without the prior written consent of the Administrative Agent or such
Issuing Bank, as the case may be, and (B) any waiver, amendment or modification
of this Agreement that by its terms reduces or adversely affects the rights or
duties under this Agreement of the Lenders holding Loans or Commitments of one
or more Classes without affecting the rights or duties of the Lenders holding
Loans or Commitments of the other Class or Classes may be effected by an
agreement or agreements in writing entered into by the Company and the
percentage in interest of each adversely affected Class of Lenders that would be
required to consent thereto under this Section if such Class of Lenders were the
only Class of Lenders at such time. Notwithstanding the foregoing, any provision
of this Agreement may be amended by an agreement in writing entered into by the
Company, the Required Lenders and the Administrative Agent (and, if their rights
or obligations are affected thereby the Issuing Banks) if (i) by the terms of
such agreement the Commitment of each Lender not consenting to the
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amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Company
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent and such Affiliates,
in connection with the syndication of the credit facilities provided for herein,
the preparation and administration of the Loan Documents or any amendments,
modifications or waivers of the provisions thereof (whether or not the
transactions contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by any Issuing Bank in connection
with the issuance, amendment, renewal or extension of any Letter of Credit or
any demand for payment thereunder and (iii) all out-of-pocket expenses incurred
by the Administrative Agent, any Issuing Bank or, after the occurrence and
during the continuance of any Default, any Lender, including the fees, charges
and disbursements of any counsel for the Administrative Agent, any Issuing Bank
or any Lender, in connection with the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or
in connection with the Loans made or Letters of Credit issued hereunder,
including all such out-of-pocket expenses incurred during any workout,
restructuring or negotiations in respect of such Loans or Letters of Credit.
(b) The Company shall indemnify the Administrative Agent, each
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, incurred by or asserted against any Indemnitee arising out
of, in connection with, or as a result of (i) the execution or delivery of any
Loan Document or any other agreement or instrument contemplated hereby, the
performance by the parties to the Loan Documents of their respective obligations
thereunder or the consummation of the Transactions or any other transactions
contemplated hereby, (ii) any Loan or Letter of Credit or the use of the
proceeds therefrom (including any refusal by an Issuing Bank to honor a demand
for payment under a Letter of Credit if the documents presented in connection
with such demand do not strictly comply with the terms of such Letter of
Credit), (iii) any actual or alleged presence or release of Hazardous Materials
on or from any Mortgaged Property or any other property currently or formerly
owned or operated by the Company or any of its Subsidiaries, or any
Environmental Liability related in any way to the Company or any of its
Subsidiaries or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or wilful misconduct of such
Indemnitee.
(c) To the extent that the Company fails to pay any amount required
to be paid by it to the Administrative Agent or any Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or Issuing Bank, as the case may be,
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such Lender's pro rata share (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asse