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EXHIBIT 4.11
AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT
This AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (this "Credit
Agreement") is made as of August 28, 1996, by and among (a) HMT TECHNOLOGY
CORPORATION (the "Borrower"), a Delaware corporation having its principal place
of business at 1055 Page Avenue, Fremont, California 94538, (b) THE FIRST
NATIONAL BANK OF BOSTON, a national banking association, BANQUE PARIBAS, acting
through its Los Angeles branch, and the other lending institutions listed on
Schedule 1.1, (c) THE FIRST NATIONAL BANK OF BOSTON as administrative and
co-syndication agent for itself, the other lending institutions listed on
Schedule 1.1, and the other Bank Agents (as defined herein), and (d) BANQUE
PARIBAS, as co-syndication agent for itself, the other lending institutions
listed on Schedule 1.1, and the other Bank Agents.
RECITALS
A. The Borrower, the Banks, and the Bank Agents desire to amend and
restate in its entirety that certain Revolving Credit and Term Loan Agreement
dated as of November 30, 1995, as amended prior to the execution and delivery of
this Credit Agreement (as so amended, the "Original Credit Agreement"), by and
among the Borrower, the Banks and the Bank Agent.
B. The Banks have agreed to make and maintain the credit described in this
Credit Agreement only on the terms, subject to the conditions and in reliance on
the representations and warranties set forth below.
1. DEFINITIONS AND RULES OF INTERPRETATION.
1.1. DEFINITIONS. The following terms shall have the meanings set forth in
this Section 1 or elsewhere in the provisions of this Credit Agreement referred
to below:
Affiliate. Any Person that would be considered to be an affiliate of the
Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agent. FNBB acting as administrative agent for the Banks and the other
Bank Agents.
Agent's Head Office. The Agent's head office located at 100 Federal
Street, Boston, Massachusetts 02110 or at such other location as the Agent may
designate as its head office from time to time.
Assignment and Acceptance. See Section 19.1.
Balance Sheet Date. March 31, 1996.
Bank Agents. Collectively the Agent and the Co-Syndication Agents.
Bank Agents' Special Counsel. Gibson, Dunn & Crutcher LLP or such
other counsel as may be approved by the Bank Agents.
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Banks. FNBB, Paribas and the other lending institutions listed on
Schedule 1.1 hereto and any other Person who becomes an assignee of any
rights and obligations of a Bank pursuant to Section 19.
Base Rate. The higher of (i) the annual rate of interest announced from
time to time by the Agent at the Agent's Head Office, as its "base rate" and
(ii) one-half of one percent (1/2%) above the Federal Funds Effective Rate. For
the purposes of this definition, "Federal Funds Effective Rate" shall mean, for
any day, the rate per annum equal to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such transactions
received by the Agent from three funds brokers of recognized standing selected
by the Agent.
Base Rate Loans. All or any portion of the Revolving Credit Loans
bearing interest calculated by reference to the Base Rate.
Borrower. As defined in the preamble hereto.
Business Day. Any day on which (a) banking institutions in Boston,
Massachusetts and San Francisco, California, are open for the transaction of
banking business and (b) in the case of LIBOR Rate Loans, a day which is also a
LIBOR Business Day.
Capital Assets. Fixed assets, both tangible (such as land, buildings,
fixtures, machinery and equipment) and intangible (such as patents, copyrights,
trademarks, franchises and good will); provided that Capital Assets shall not
include any item customarily charged directly to expense or depreciated over a
useful life of twelve (12) months or less in accordance with generally accepted
accounting principles.
Capital Expenditures. Amounts paid or indebtedness incurred by the
Borrower or any of its Subsidiaries in connection with the purchase or lease by
the Borrower or any of its Subsidiaries of Capital Assets that would be required
to be capitalized and shown on the balance sheet of such Person in accordance
with generally accepted accounting principles.
Capitalized Leases. Leases under which the Borrower or any of its
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with generally accepted accounting
principles.
Closing Date. The first date on which all of the conditions set forth in
Section 11 have been satisfied.
Code. The Internal Revenue Code of 1986.
Commitment. With respect to each Bank, the amount set forth on Schedule
1.1 hereto as the amount of such Bank's commitment to make Revolving Credit
Loans and purchase
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assignments of Swingline Loans to, and to participate in the issuance, extension
and renewal of Letters of Credit for the account of, the Borrower, as the same
may be reduced from time to time; or, if such commitment is terminated pursuant
to the provisions hereof, zero.
Commitment Fee. See Section 2.2.
Commitment Percentage. With respect to each Bank, the percentage set
forth on Schedule 1.1 hereto as such Bank's percentage of the aggregate
Commitments of all of the Banks.
Compliance Certificate. See Section 8.4(c).
Consolidated or consolidated. With reference to any term defined herein,
such term as applied to the accounts of the Borrower and its Subsidiaries,
consolidated in accordance with generally accepted accounting principles.
Consolidated Net Income (or Deficit). The consolidated net income (or
deficit) of the Borrower and its Subsidiaries, after deduction of all expenses,
taxes, and other proper charges, determined in accordance with generally
accepted accounting principles, after eliminating therefrom all extraordinary
nonrecurring items of income or expense.
Consolidated Net Worth. On a consolidated basis, the common stockholders'
equity capital plus surplus plus retained earnings, as determined and computed
according to generally accepted accounting principles.
Consolidated Total Interest Expense. For any period, the aggregate amount
of interest required to be paid or accrued by the Borrower and its Subsidiaries
during such period on all Indebtedness of the Borrower and its Subsidiaries
outstanding during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized, including
payments consisting of interest in respect of Capitalized Leases.
Conversion Request. A notice given by the Borrower to the Agent of the
Borrower's election to convert or continue a Loan in accordance with Section
2.7.
Co-Syndication Agent(s). Each of FNBB and Paribas acting as co-syndication
agents for the Banks and the other Bank Agents.
Credit Agreement. This Amended and Restated Revolving Credit Agreement,
including the Schedules and Exhibits hereto, which by this reference are
incorporated into and made a part hereof.
Current Ratio. On a consolidated basis, the ratio of Borrower's total
current assets, determined in accordance with generally accepted accounting
principles, to Borrower's current liabilities, determined in accordance with
generally accepted accounting principles (provided that all amounts outstanding
in respect of the Loans shall not be deemed to be current liabilities for the
period beginning on the Closing Date and ending on the second anniversary of the
Closing Date).
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Default. See Section 13.1.
Delinquent Bank. See Section 15.5.3.
Distribution. The declaration or payment of any dividend on or in respect
of any shares of any class of capital stock of the Borrower, other than
dividends payable solely in shares of common stock of the Borrower; the
purchase, redemption, or other retirement of any shares of any class of capital
stock of the Borrower, directly or indirectly through a Subsidiary of the
Borrower or otherwise; the return of capital by the Borrower to its shareholders
as such; or any other distribution on or in respect of any shares of any class
of capital stock of the Borrower or any of its Subsidiaries (other than to the
Borrwer or a direct or indirect wholly-owned Subsidiary of the Borrower).
Dollars or $. Dollars in lawful currency of the United States of America.
Domestic Lending Office. Initially, the office of each Bank designated as
such in Schedule 1.1 hereto; thereafter, such other office of such Bank, if any,
located within the United States that will be making or maintaining Base Rate
Loans.
Drawdown Date. The date on which any Revolving Credit Loan or Swingline
Loan is made or is to be made, and the date on which any Revolving Credit Loan
is converted or continued in accordance with Section 2.7, each of which shall be
a Business Day (and, in accordance with Section 2.7, may also be required to be
a LIBOR Business Day).
EBIT. For any period, an amount equal to the consolidated earnings (or
loss) from the operations of the Borrower and its Subsidiaries for any period,
after all expenses and other proper charges but before provision for any income
taxes or interest expense for such period, in each case, determined in
accordance with generally accepted accounting principles.
EBITDA. For any period, an amount equal to the sum of (i) EBIT plus (ii)
depreciation and amortization for such period, in each case, determined in
accordance with generally accepted accounting principles.
Eligible Assignee. Any of (i) a commercial bank or finance company
organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000,
calculated in accordance with generally accepted accounting principles; (ii) a
savings and loan association or savings bank organized under the laws of the
United States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with generally
accepted accounting principles; (iii) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development (the "OECD"), or a political subdivision of any such
country, and having total assets in excess of $1,000,000,000, provided that such
bank is acting through a branch or agency located in the country in which it is
organized or another country which is also a member of the OECD; (iv) the
central bank of any country which is a member of the OECD; (v) funds and
investment companies that invest in loans expected to earn interest based on the
Base Rate or LIBOR Rate; and (vi) if, but only if an Event of Default has
occurred and is continuing, any other bank, insurance company, commercial
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finance company or other financial institution or other Person approved by the
Co-Syndication Agents, such approval not to be unreasonably withheld.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
Environmental Laws. Any judgment, decree, order, law, license, rule or
regulation pertaining to environmental matters, including without limitation
those arising under the Resource Conservation and Recovery Act ("RCRA"), the
Comprehensive Environmental Response, Compensation and Liability Act of 1980
("CERCLA"), the Superfund Amendments and Reauthorization Act of 1986 ("SARA"),
the Federal Clean Water Act, the Federal Clean Air Act, the Toxic Substances
Control Act, each as subsequently amended, or any State or local statute,
regulation, ordinance, order or decree relating to health, safety or the
environment.
Equity Infusion. Any sale of new equity of Borrower, including without
limitation capital stock, stock-like instruments, warrants, and warrant-like
instruments, that results in Borrower's receipt of not less than Seventy-Five
Million Dollars ($75,000,000) in net cash proceeds.
ERISA. The Employee Retirement Income Security Act of 1974.
ERISA Affiliate. Any Person which is treated as a single employer with the
Borrower under Section 414 of the Code.
ERISA Reportable Event. A "reportable event" with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
Eurocurrency Reserve Rate. For any day with respect to a LIBOR Rate Loan,
the maximum rate (expressed as a decimal) at which any lender subject thereto
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D), if such liabilities were outstanding. The
Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
Event of Default. See Section 13.1.
Fee Letter. The letter agreement dated as of August 28, 1996 between the
Agent and the Borrower.
FNBB. The First National Bank of Boston, a national banking association,
in its individual capacity.
generally accepted accounting principles. Generally accepted accounting
principles as a set forth from time to time in the opinions and pronouncements
of the Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and
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pronouncements of the Financial Accounting Standards Board, or in such
statements by such other Person as may be in general use by significant segments
of the U.S. accounting profession. In the event that generally accepted
accounting principles change during the term of this Credit Agreement such that
the covenants contained in Section 10 would be calculated in a different manner
or with different components, (a) the parties hereto agree to amend this Credit
Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Borrower's financial condition to substantially the same
criteria as were effective prior to such change, and (b) Borrower shall be
deemed to be in compliance with the covenants contained in Section 10 during the
ninety (90) day period following any such change in generally accepted
accounting principles if and to the extent that Borrower would have been in
compliance therewith under generally accepted accounting principles as in effect
immediately prior to such change.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by the Borrower or
any ERISA Affiliate the benefits of which are guaranteed on termination in full
or in part by the PBGC pursuant to Title IV of ERISA, other than a Multiemployer
Plan.
Hazardous Substances. Any hazardous waste, as defined by 42 U.S.C. Section
6903(5), any hazardous substances as defined by 42 U.S.C. Section 9601(14), any
pollutant or contaminant as defined by 42 U.S.C. Section 9601(33) and any toxic
substances, oil or hazardous materials or other chemicals or substances
regulated by any Environmental Laws.
HML. Hitachi Metals, Ltd., a Japanese corporation.
Indebtedness. All obligations, contingent and otherwise, that in
accordance with generally accepted accounting principles should be classified
upon the obligor's balance sheet as liabilities, or to which reference should be
made by footnotes thereto (other than contingent liabilities which have not been
quantified in such footnotes), including in any event and whether or not so
classified: (i) all debt and similar monetary obligations, whether direct or
indirect; (ii) all liabilities secured by any mortgage, pledge, security
interest, lien, charge or other encumbrance existing on property owned or
acquired subject thereto, whether or not the liability secured thereby shall
have been assumed; (iii) synthetic leases (i.e., any master lease agreement
pursuant to which the lessor (A) agrees from time to time to acquire from and to
lease back to the lessee, certain equipment or other property, and (B)
remarkets, or contracts with a third party to remarket, such leased equipment or
other property, while retaining the rights of a lessor vis-a-vis the lessee with
respect thereto); and (iv) all guaranties, endorsements and other contingent
obligations whether direct or indirect in respect of indebtedness of others,
including any obligation to supply funds to or in any manner to invest in,
directly or indirectly, the debtor, to purchase indebtedness, or to assure the
owner of indebtedness against loss, through an agreement to purchase goods,
supplies, or services for the purpose of enabling the debtor to make payment of
the indebtedness held by such owner or otherwise, and the obligations to
reimburse the issuer in respect of any letters of credit.
Initial Leverage Ratio Calculation. See Section 11.6.
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Intangible Assets. The value, as stated on the consolidated balance sheet
of the Borrower, of all intangible assets of the Borrower as determined and
computed in accordance with generally accepted accounting principles.
Interest Payment Date. (i) As to any Base Rate Loan, the last day of each
calendar quarter including the calendar quarter in which the Drawdown Date of
such Base Rate Loan occurs; and (ii) as to any LIBOR Rate Loan, the earlier to
occur of (A) the last day of each calendar quarter including the quarter in
which the Drawdown Date of such LIBOR Rate Loan occurs and (B) last day of the
Interest Period in respect of such LIBOR Rate Loan.
Interest Period. With respect to each Revolving Credit Loan , (i)
initially, the period commencing on the Drawdown Date of such Loan and ending on
the last day of one of the periods set forth below, as selected by the Borrower
in a Loan Request: (A) for any Base Rate Loan, the calendar quarter in which the
Drawdown Date for such Base Rate Loan occurs; or (B) for any LIBOR Rate Loan, 1,
2 or 3 months; and (ii) thereafter, each period commencing on the first day
immediately succeeding the last day of the immediately preceding Interest Period
applicable to such Revolving Credit Loan and ending on the last day of one of
the periods set forth above, as selected by the Borrower in a Conversion
Request; provided that all of the foregoing provisions relating to Interest
Periods are subject to the following:
(a) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a LIBOR Business Day, that Interest
Period shall be extended to the next succeeding LIBOR Business Day, unless
the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding LIBOR Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would
end on a day that is not a Business Day, that Interest Period shall end on
the next succeeding Business Day;
(c) if the Borrower shall fail to give notice as provided in Section
2.7, the Borrower shall be deemed to have requested a conversion of the
affected LIBOR Rate Loan to a Base Rate Loan and the continuance of all
Base Rate Loans as Base Rate Loans on the last day of the then current
Interest Period with respect thereto;
(d) any Interest Period relating to any LIBOR Rate Loan that begins
on the last LIBOR Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last LIBOR Business Day of a
calendar month; and
(e) any Interest Period that would otherwise extend beyond the
Maturity Date shall end on the Maturity Date.
Investments. All expenditures made and all liabilities incurred
(contingently or otherwise) for the acquisition of stock or Indebtedness of, or
for loans, advances, capital contributions or transfers of property to, or in
respect of any guaranties (or other commitments as described under
Indebtedness), or obligations of, any Person. In determining the aggregate
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amount of Investments of a Person outstanding at any particular time: (i) the
amount of any Investment represented by a guaranty shall be taken at not less
than the principal amount of the obligations guaranteed and still outstanding;
(ii) there shall be included as an Investment all interest accrued with respect
to Indebtedness constituting an Investment unless and until such interest is
paid; (iii) there shall be deducted in respect of each such Investment any
amount received as a return of capital (but only by repurchase, redemption,
retirement, repayment, liquidating dividend or liquidating distribution); (iv)
there shall not be deducted in respect of any Investment any amounts received as
earnings on such Investment, whether as dividends, interest or otherwise, except
that accrued interest included as provided in the foregoing clause (ii) may be
deducted when paid; and (v) there shall not be deducted from the aggregate
amount of Investments any decrease in the fair market value thereof.
Issuing Bank. Either of Paribas or FNBB, as determined by the Agent,
acting as letter of credit issuer for the Banks and the other Bank Agents.
Issuing Bank Head Office. The Issuing Bank's head office located at, in
the case of Paribas, 2029 Century Park East, Suite 3900, Los Angeles, California
90067 or, in the case of FNBB, 100 Federal Street, Boston, Massachusetts 02110,
or at such other locations as the Issuing Bank may designate from time to time.
Letter of Credit. See Section 5.1.1.
Letter of Credit Application. See Section 5.1.1.
Letter of Credit Participation. See Section 5.1.4.
Leverage Ratio. The ratio of Total Liabilities of the Borrower less
obligations in respect of the Subordinated Debt or any Replacement Subordinated
Debt, as the case may be, to the Borrower's total EBITDA for the immediately
preceding four consecutive quarters, treated as a single accounting period.
LIBOR Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
LIBOR Lending Office. Initially, the office of each Bank designated as
such in Schedule 1.1 hereto; thereafter, such other office of such Bank, if any,
that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate. For any Interest Period with respect to a LIBOR Rate Loan, the
rate of interest equal to (i) the rate determined by the Agent at which Dollar
deposits for such Interest Period are offered based on information presented on
Telerate Page 3750 as of 11:00 a.m. London time on the second LIBOR Business Day
prior to the first day of such Interest Period, divided by (ii) a number equal
to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
LIBOR Rate Loans. Revolving Credit Loans bearing interest calculated by
reference to the LIBOR Rate.
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LIBOR Spread. In each case, effective from the date on which the Agent
receives the applicable Compliance Certificate, (i) at any time when the
Leverage Ratio calculated as of the end of the previous quarter was equal to or
less than .25, three-quarters of one percent (.75%); (ii) at any time when the
Leverage Ratio calculated as of the end of the previous quarter was greater than
.25 but less than .50, one percent (1.0%); (iii) at any time when the Leverage
Ratio calculated as of the end of the previous quarter was equal to or greater
than .50 but equal to or less than .75, one and one-quarter percent (1.25%), and
(iv) at any time when the Leverage Ratio calculated as of the end of the
previous quarter was greater than .75%, one and one-half percent (1.50%),
provided that, from and after the date on which Borrower consummates an Equity
Infusion, the LIBOR Spread will be one-quarter of one percent (.25%) less than
it otherwise would be in accordance with clauses (i) through (iv) above;
provided further that any reduction in the LIBOR Spread that would otherwise
occur pursuant to this paragraph shall not be effective during any time when a
Default or an Event of Default has occurred or is continuing.
Loan Documents. This Credit Agreement, the Notes, the Letter of Credit
Applications, the Letters of Credit and the Fee Letter.
Loan Request. See Section 2.6.
Loans. The Revolving Credit Loans and the Swingline Loans.
Majority Banks. As of any date, the Banks (excluding any Delinquent Banks,
provided that if the Commitments have been terminated as of such date, any
Delinquent Bank shall not be excluded) having Total Percentages aggregating to
at least sixty-six and two-thirds percent (66-2/3%) on such date.
Mandatory Borrowing. See Section 4.6.
Maturity Date. August 28, 1999.
Maximum Drawing Amount. The maximum aggregate amount that the
beneficiaries may at any time draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by the Borrower or any ERISA
Affiliate.
Net Fixed Assets. The value of property, plant and equipment required to
be reflected on the consolidated balance sheet of the Borrower in accordance
with generally accepted accounting principles, minus accumulated depreciation as
of any date of determination of Net Fixed Assets.
Notes. Collectively, the Revolving Credit Notes and the Swingline Note.
Obligations. All indebtedness, obligations and liabilities of any of the
Borrower and its Subsidiaries to any of the Banks and the Agent, individually or
collectively, existing on the date of this Credit Agreement or arising
thereafter, direct or indirect, joint or several, absolute or contingent,
matured or unmatured, liquidated or unliquidated, secured or unsecured, arising
by contract, operation of law or otherwise, arising or incurred under this
Credit Agreement or any of
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the other Loan Documents or in respect of any of the Loans made or Reimbursement
Obligations incurred or any of the Notes, Letter of Credit Applications, Letters
of Credit or other instruments at any time evidencing any thereof.
Original Credit Agreement. As defined in the Recitals hereto.
outstanding. With respect to the Loans, the aggregate unpaid principal
thereof as of any date of determination.
Paribas. Banque Paribas, acting through its Los Angeles branch, in its
individual capacity.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. Liens, security interests and other encumbrances
permitted by Section 9.2.
Person. Any individual, corporation, partnership, trust, unincorporated
association, business, or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Preferred Stock. As applied to the capital stock of any Person, the
capital stock of any class or classes (however designated) that is preferred as
to the payment of dividends, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such corporation, over
shares of capital stock of any other class of such Person.
Real Estate. All real property at any time owned or leased (as lessee or
sublessee) by the Borrower or any of its Subsidiaries.
Recapitalization Agreement. The Recapitalization Agreement, dated as of
October 31, 1995, among the Borrower and each of the investors listed on Exhibit
A thereto.
Record. The grid attached to a Note, or the continuation of such grid, or
any other similar record, including computer records, maintained by any Bank
with respect to any Loan referred to in such Note.
Redemption Agreement. The Redemption Agreement, dated as of October 31,
1995, between the Borrower and HML.
Reimbursement Obligation. The Borrower's obligation to reimburse the
Issuing Bank and the Banks on account of any drawing under any Letter of Credit
as provided in Section 5.2.
Replacement Subordinated Debt. Unsecured subordinated Indebtedness of the
Borrower, in an original principal amount not exceeding One Hundred Fifty
Million Dollars ($150,000,000), as to which the following conditions are
satisfied: (i) the first proceeds of such subordinated Indebtedness shall be
used to pay the Subordinated Debt in full; (ii) the proceeds of such
subordinated Indebtedness shall not be used to make payments to the holders of
Borrower's Preferred Stock or to make any other Restricted Payments; (iii) the
terms and conditions of such
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subordinated Indebtedness shall be substantially the same as those described in
that certain prospectus relating to the issuance by the Borrower of 4,000,000
shares of common stock and $150,000,000 in convertible subordinated notes and
dated June 6, 1996; and (iv) the coupon applicable to such subordinated
Indebtedness shall not exceed twelve percent (12%) per annum.
Restricted Payments. In relation to the Borrower and its Subsidiaries, any
(a) Distribution or (b) payment or prepayment by the Borrower or any of its
Subsidiaries to any Affiliate of the Borrower other than payments to Affiliates
for goods and services in the ordinary course of business on terms equivalent to
those obtainable in arms'-length transactions.
Revolving Credit Loans. Revolving credit loans made or to be made by the
Banks to the Borrower pursuant to Section 2.
Revolving Credit Note Record. A Record with respect to a Revolving Credit
Note.
Revolving Credit Notes. See Section 2.4.
Solvent. See Section 7.5.2.
Subordinated Debt. Indebtedness of the Borrower in respect of the
Subordinated Notes that is expressly subordinated and made junior to the payment
and performance in full of the Obligations, and evidenced as such by the terms
of the Subordinated Notes.
Subordinated Debt Documents. The Subordinated Notes and the Subordination
Agreement.
Subordinated Notes. The Subordinated Notes due 2005 issued by the Borrower
in favor of Summit and HML in the original aggregate principal amount of
$46,999,995.
Subordination Agreement. The Subordination and Intercreditor Agreement
dated as of November 30, 1995 among the Borrower, the Agent, Summit and HML.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority (by number of votes) of
the outstanding Voting Stock.
Summit. Summit Partners, L.P., a California limited partnership, its
affiliated entities, their partners and all other Persons listed on Exhibit A to
the Recapitalization Agreement.
Swingline Commitment. Five Million Dollars ($5,000,000).
Swingline Lender. FNBB, in its individual capacity and not as Agent or
Co-Syndication Agent, and any successor to all or a part of the Swingline
Commitment.
Swingline Loan. See Section 4.1.
Swingline Maturity Date. The date which is five Business Days prior to the
Maturity Date.
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Swingline Note. See Section 4.2.
Swingline Note Record. A Record with respect to the Swingline Note.
Tangible Net Worth. At any date of determination thereof, on a
consolidated basis, Borrower's Consolidated Net Worth, less all Intangible
Assets.
Total Commitment. The sum of the Commitments of the Banks, as in effect
from time to time, provided that the initial Total Commitment shall be Fifty
Million Dollars ($50,000,000).
Total Liabilities. The total liabilities of a Person that would be
required to be reflected on such Person's balance sheet in accordance with
generally accepted accounting principles.
Total Percentage. With respect to each Bank, the portion of the Commitment
(or, if the Commitments are terminated, Revolving Credit Loans, Swingline Loans,
Letter of Credit Participations in Unpaid Reimbursement Obligations and
participating interests in the risk relating to outstanding Letters of Credit)
held by such Bank as a percentage of the greater of (i) the Total Commitment and
(ii) the outstanding principal amount of the Revolving Credit Loans, Swingline
Loans, Unpaid Reimbursement Obligations and the Maximum Drawing Amount.
Type. As to any Revolving Credit Loan, its nature as a Base Rate Loan or a
LIBOR Rate Loan.
Uniform Customs. With respect to any Letter of Credit, the Uniform Customs
and Practice for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500 or any successor version thereto adopted by the
Issuing Bank in the ordinary course of its business as a letter of credit issuer
and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation. Any Reimbursement Obligation for which
the Borrower does not reimburse the Issuing Bank and the Banks on the date
specified in, and in accordance with, Section 5.2.
Voting Stock. Stock or similar interests, of any class or classes (however
designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, association, trust or other business
entity involved, whether or not the right so to vote exists by reason of the
happening of a contingency.
1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
(b) The singular includes the plural and the plural includes the
singular.
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(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles, applied on a
consistent basis, by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of California, have the meanings
assigned to them therein, with the term "instrument" being that defined
under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "Section " refers to that section of
this Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth in
this Credit Agreement, each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time
between the Closing Date and the Maturity Date upon notice by the Borrower to
the Agent given in accordance with Section 2.6, such sums as are requested by
the Borrower up to a maximum aggregate amount outstanding (after giving effect
to all amounts requested) at any one time equal to such Bank's Commitment minus
such Bank's Commitment Percentage of the sum of the Maximum Drawing Amount and
all Unpaid Reimbursement Obligations and such Bank's Commitment Percentage of
any then-outstanding Swingline Loans, provided that the sum of the outstanding
amount of the Revolving Credit Loans (after giving effect to all amounts
requested) plus the Maximum Drawing Amount, the then-outstanding amount of any
Swingline Loans, and all Unpaid Reimbursement Obligations shall not at any time
exceed the Total Commitment. The Revolving Credit Loans shall be made pro rata
in accordance with each Bank's Commitment Percentage. Each request for a
Revolving Credit Loan hereunder shall constitute a representation and warranty
by the Borrower that the conditions set forth in Section 12 have been satisfied
on the date of such request.
2.2. COMMITMENT FEE. The Borrower agrees to pay to the Agent for the
accounts of the Banks in accordance with their respective Commitment Percentages
a Commitment Fee (each a "Commitment Fee" and, in the aggregate, the "Commitment
Fee") calculated as follows, in each case effective from the date on which the
Agent receives the applicable Compliance Certificate: (i) at any time when the
Leverage Ratio calculated as of the end of the previous
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quarter was equal to or less than .25, eighteen one-hundredths of one percent
(.18%) per annum; (ii) at any time when the Leverage Ratio calculated as of the
end of the previous quarter was greater than .25 but less than .50, twenty
one-hundredths of one percent (.20%) per annum; and (iii) at any time when the
Leverage Ratio calculated as of the end of the previous quarter was equal to or
greater than .50, one-quarter of one percent (.25%) per annum, in each case
calculated on the average daily amount during each calendar quarter, or such
shorter period as may exist from the Closing Date to the first immediately
succeeding end of a calendar quarter or from the end of the final calendar
quarter occurring prior to the Maturity Date until the Maturity Date, by which
the Total Commitment minus the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations exceeds the outstanding amount of Revolving Credit
Loans during such calendar quarter. The Commitment Fee shall be payable
quarterly in arrears on the first day of each calendar quarter for the
immediately preceding calendar quarter commencing on the first such date
following the date hereof, with a final payment on the earlier to occur of (i)
the Maturity Date and (ii) any earlier date on which the Commitments shall
terminate pursuant hereto.
2.3. REDUCTION OF TOTAL COMMITMENT. The Borrower shall have the right, at
any time and from time to time, upon two (2) Business Days' prior written notice
to the Agent, to reduce by $500,000 or an integral multiple thereof, or
terminate entirely, the Total Commitment, whereupon the Commitments of the Banks
shall be reduced pro rata in accordance with their respective Commitment
Percentages of the amount specified in such notice or, as the case may be,
terminated. The Total Commitment may not at any time be reduced below the amount
of any Swingline Loans outstanding at the time of such reduction or termination.
Promptly after receiving any notice of the Borrower delivered pursuant to this
Section 2.3, the Agent will notify the Banks of the substance thereof. Upon the
effective date of any such reduction or termination, the Borrower shall pay to
the Agent for the respective accounts of the Banks the full amount of any
Commitment Fee then accrued on the amount of the reduction. No reduction or
termination of the Commitments may be reinstated.
2.4. THE REVOLVING CREDIT NOTES. The Revolving Credit Loans shall be
evidenced by separate restated promissory notes of the Borrower, each in
substantially the form of Exhibit A hereto (each a "Revolving Credit Note"),
dated the Closing Date (or such other date on which a Bank may become a party
hereto pursuant to Section 19 hereof) and completed with appropriate insertions.
One Revolving Credit Note shall be payable to the order of each Bank in a
principal amount equal to such Bank's Commitment or, if less, the outstanding
amount of all Revolving Credit Loans made by such Bank, plus interest accrued
thereon, as set forth below. The Borrower irrevocably authorizes each Bank to
make or cause to be made, at or about the time of the Drawdown Date of any
Revolving Credit Loan or at the time of receipt of any payment of principal on
such Bank's Revolving Credit Note, an appropriate notation on such Bank's
Revolving Credit Note Record reflecting the making of such Revolving Credit Loan
or (as the case may be) the receipt of such payment. The outstanding amount of
the Revolving Credit Loans set forth on such Bank's Revolving Credit Note Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
to such Bank, but the failure to record, or any error in so recording, any such
amount on such Bank's Revolving Credit Note Record shall not limit or otherwise
affect the obligations of the Borrower hereunder or under any Revolving
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Credit Note to make payments of principal of or interest on any Revolving Credit
Note when due.
2.5. INTEREST ON REVOLVING CREDIT LOANS. Except as otherwise provided in
Section 6.10,
(a) Each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at a rate per annum equal to the
Base Rate;
(b) Each LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of
the Interest Period with respect thereto at the rate per annum equal to
the LIBOR Rate determined for such Interest Period plus the applicable
LIBOR Spread;
(c) The Borrower promises to pay interest on each Revolving Credit
Loan, in arrears, on each Interest Payment Date with respect thereto.
2.6. REQUESTS FOR REVOLVING CREDIT LOANS. The Borrower shall give to the
Agent written notice in the form of Exhibit B hereto (or telephonic notice
confirmed in a writing in the form of Exhibit B hereto) of each Revolving Credit
Loan requested hereunder (a "Loan Request") no less than (i) one (1) Business
Day prior to the proposed Drawdown Date of any Base Rate Loan and (ii) three (3)
LIBOR Business Days prior to the proposed Drawdown Date of any LIBOR Rate Loan.
Each such notice shall specify (A) the aggregate principal amount of the
Revolving Credit Loans requested, (B) the proposed Drawdown Date of such
Revolving Credit Loans, (C) the Interest Period for such Revolving Credit Loans,
and (D) the Type of such Revolving Credit Loans. Promptly upon receipt of any
such notice, the Agent shall notify each of the Banks thereof. Each Loan Request
shall be irrevocable and binding on the Borrower and shall obligate the Borrower
to accept the Revolving Credit Loans requested from the Banks on the proposed
Drawdown Date. Each Loan Request with respect to Base Rate Loans shall be in a
minimum aggregate amount of $500,000 or an integral multiple thereof and each
Loan Request in respect of LIBOR Rate Loans shall be in a minimum aggregate
amount of $1,000,000 or an integral multiple thereof.
2.7. CONVERSION OPTIONS.
2.7.1. CONVERSION TO DIFFERENT TYPE OF REVOLVING CREDIT LOAN. The
Borrower may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that (i)
with respect to any such conversion of a LIBOR Rate Loan to a Base Rate
Loan, the Borrower shall give the Agent at least one (1) Business Day's
prior written notice of such election; (ii) with respect to any such
conversion of a Base Rate Loan to a LIBOR Rate Loan, the Borrower shall
give the Agent at least three (3) LIBOR Business Days' prior written
notice of such election; (iii) with respect to any such conversion of a
LIBOR Rate Loan into a Base Rate Loan, such conversion shall only be made
at the end of business on the last day of the Interest Period with respect
thereto; (iv) no more than three (3) LIBOR Rate Loans having different
Interest Rate Periods may be outstanding at any time; and (v) no Loan may
be converted into a LIBOR Rate Loan when any Default or Event of Default
has
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occurred and is continuing. On the date on which such conversion is
being made each Bank shall take such action as is necessary to transfer
its Commitment Percentage of such Revolving Credit Loans to its Domestic
Lending Office or its LIBOR Lending Office, as the case may be. All or any
part of outstanding Revolving Credit Loans of any Type may be converted
into a Revolving Credit Loan of another Type as provided herein, provided
that any partial conversion shall be in an aggregate principal amount of
$500,000 (subject to Section 2.7.3 hereof) or a whole multiple thereof.
Each Conversion Request relating to the conversion of a Base Rate Loan to
a LIBOR Rate Loan shall be irrevocable by the Borrower.
2.7.2. CONTINUATION OF TYPE OF REVOLVING CREDIT LOAN. Any Revolving
Credit Loan of any Type may be continued as a Revolving Credit Loan of the
same Type upon the expiration of an Interest Period with respect thereto
by compliance by the Borrower with the notice provisions contained in
Section 2.7.1; provided that no LIBOR Rate Loan may be continued as such
when any Default or Event of Default has occurred and is continuing, but
shall be automatically converted to a Base Rate Loan at the end of
business on the last day of the first Interest Period relating thereto
ending during the continuance of any Default or Event of Default of which
officers of the Agent active in respect of the Borrower's account have
actual knowledge. In the event that the Borrower fails to provide any such
notice with respect to the continuation of any LIBOR Rate Loan as such,
then such LIBOR Rate Loan shall be automatically converted to a Base Rate
Loan at the end of business on the last day of the first Interest Period
relating thereto. The Agent shall notify the Banks promptly when any such
automatic conversion contemplated by this Section 2.7.2 is scheduled to
occur.
2.7.3. LIBOR RATE LOANS. Any conversion to or from LIBOR Rate Loans
shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of all LIBOR
Rate Loans having the same Interest Period shall not be less than
$5,000,000 or a whole multiple of $1,000,000 in excess thereof.
2.8. FUNDS FOR REVOLVING CREDIT LOAN.
2.8.1. FUNDING PROCEDURES. Not later than 11:00 a.m. (California
time) on the proposed Drawdown Date of any Revolving Credit Loans, each of
the Banks will make available to the Agent, at its Head Office, in
immediately available funds, the amount of such Bank's Commitment
Percentage of the aggregate amount of the requested Revolving Credit
Loans. Upon receipt from each Bank of such amount, and upon receipt of the
documents required by Sections 11 and 12 and the satisfaction of the other
conditions set forth therein, to the extent applicable, the Agent will
make available to the Borrower the aggregate amount of such Revolving
Credit Loans made available to the Agent by the Banks. The failure or
refusal of any Bank to make available to the Agent at the aforesaid time
and place on any Drawdown Date the amount equal to its Commitment
Percentage of the aggregate amount of the requested Revolving Credit Loans
shall not relieve any other Bank from its several obligation hereunder to
make available to the Agent the
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amount equal to such other Bank's Commitment Percentage of the aggregate
amount of any requested Revolving Credit Loans.
2.8.2. ADVANCES BY AGENT. The Agent may, unless notified to the
contrary by any Bank prior to a Drawdown Date, assume that such Bank has
made available to the Agent on such Drawdown Date the amount equal to such
Bank's Commitment Percentage of the aggregate Revolving Credit Loans to be
made on such Drawdown Date, and the Agent may (but it shall not be
required to), in reliance upon such assumption, make available to the
Borrower a corresponding amount. If any Bank makes available to the Agent
such amount on a date after such Drawdown Date, such Bank shall pay to the
Agent, on demand, an amount equal to the product of (i) the average
computed for the period referred to in clause (iii) of this sentence, of
the weighted average interest rate paid by the Agent for federal funds
acquired by the Agent during each day included in such period, times (ii)
the amount equal to such Bank's Commitment Percentage of such Revolving
Credit Loans, times (iii) a fraction, the numerator of which is the number
of days that elapse from and including such Drawdown Date to the date on
which the amount equal to such Bank's Commitment Percentage of such
Revolving Credit Loans shall become immediately available to the Agent,
and the denominator of which is 365. A statement of the Agent submitted to
such Bank with respect to any amounts owing under this Section 2.8.2 shall
be prima facie evidence of the amount due and owing to the Agent by such
Bank. If the amount equal to such Bank's Commitment Percentage of such
Revolving Credit Loans is not made available to the Agent by such Bank
within three (3) Business Days following such Drawdown Date, the Agent
shall be entitled to recover (a) such amount from the Banks (excluding the
Delinquent Bank) on a pro rata basis up to each Bank's Commitment
Percentage of such amount); provided that in no event shall any Bank be
required to advance more than the difference between such Bank's
Commitment in effect at such time minus the sum equal to its Commitment
Percentage of (i) all Revolving Credit Loans then outstanding, plus (ii)
the Maximum Drawing Amount plus (iii) all Unpaid Reimbursement
Obligations) plus (iv) any then-outstanding Swingline Loans and (b) any
amount not recovered pursuant to the foregoing clause (a) from the
Borrower on demand, with interest thereon at the rate per annum applicable
to the Revolving Credit Loans made on such Drawdown Date.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
3.1. MATURITY. The Borrower promises to pay on the Maturity Date, and
there shall become absolutely due and payable on the Maturity Date, all of the
Revolving Credit Loans outstanding on such date, together with any and all
accrued and unpaid interest thereon.
3.2. MANDATORY REPAYMENTS OF REVOLVING CREDIT LOANS. If at any time the
sum of the outstanding amount of the Revolving Credit Loans, the Maximum Drawing
Amount, any Swingline Loans, and all Unpaid Reimbursement Obligations exceeds
the amount of the Total Commitment, then the Borrower shall immediately and
without demand therefor pay the amount of such excess to the Agent for the
respective accounts of the Banks for application: first, to any Unpaid
Reimbursement Obligations; second to the Swingline Loans, third to the Revolving
Credit Loans; and fourth, to provide to the Agent cash collateral for
Reimbursement Obligations
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as contemplated by Sections 5.2(b) and (c). Each payment of any Unpaid
Reimbursement Obligations or prepayment of Revolving Credit Loans shall be
allocated among the Banks, in proportion, as nearly as practicable, to each
Unpaid Reimbursement Obligation or (as the case may be) the respective unpaid
principal amount of each Bank's Revolving Credit Note, with adjustments to the
extent practicable to equalize any prior payments or repayments not exactly in
proportion.
3.3. OPTIONAL REPAYMENTS OF REVOLVING CREDIT LOANS.
3.3.1. REPAYMENTS OF BASE RATE LOANS. The Borrower shall have the
right, at its election, to repay the outstanding amount of the Base Rate
Loans, as a whole or in part, at any time without penalty or premium. The
Borrower shall give the Agent, no later than 11:00 a.m., California time,
at least one (1) Business Day's prior written notice of any proposed
prepayment pursuant to this Section 3.3.1 of such Base Rate Loans,
specifying the proposed date of prepayment of Base Rate Loans and the
principal amount to be prepaid. Accrued but unpaid interest on amounts
repaid pursuant to this Section 3.3.1 shall be payable on the
next-occurring Interest Payment Date in accordance with Section 2.5(c).
Each such repayment of Base Rate Loans shall be in an integral multiple of
$500,000 and shall be allocated among the Banks, in proportion, as nearly
as practicable, to the respective unpaid principal amount of each Bank's
Revolving Credit Note, with adjustments to the extent practicable to
equalize any prior repayments not exactly in proportion.
3.3.2. PREPAYMENT OF LIBOR LOANS. The Borrower shall have the right,
at its election, to prepay the outstanding amount of any LIBOR Rate Loans,
as a whole or in part, at any time, provided that any full or partial
prepayment of the outstanding amount of any LIBOR Rate Loans pursuant to
this Section 3.3.2 made on any day other than the last day of the Interest
Period relating thereto shall be accompanied by tender of all costs
incurred by the Bank Agents and the Banks as a result thereof, including
reasonable costs of redeployment of funds. The Borrower shall give the
Agent, no later than 11:00 a.m., California time, at least three (3) LIBOR
Business Days' notice of any proposed prepayment pursuant to this Section
3.3.2 of LIBOR Rate Loans, specifying the proposed date of prepayment and
the principal amount to be prepaid. Each such prepayment of the LIBOR Rate
Loans shall be in an integral multiple of $500,000, shall be accompanied
by the payment of costs, as described in this Section 3.3.2, and of
accrued but unpaid interest on the principal prepaid to the date of
prepayment. Each partial prepayment shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal
amount of each Bank's Revolving Credit Note, with adjustments to the
extent practicable to equalize any prior repayments not exactly in
proportion.
4. THE SWINGLINE LOANS.
4.1. COMMITMENT TO LEND. Subject to the terms and conditions set forth in
this Credit Agreement, theSwingline Lender severally agrees to lend to the
Borrower, and the Borrower may borrow, repay, and reborrow from time to time
between the Closing Date and the Swingline Maturity Date upon notice by the
Borrower to the Swingline Lender given in accordance with Section 4.4, such sums
as are requested by Borrower (each a "Swingline Loan") up to a maximum aggregate
amount outstanding (after giving effect to all amounts requested) at any one
time equal to the Swingline Commitment, provided that the sum of the outstanding
amount
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of the Swingline Loans (after giving effect to all amounts requested),
plus the then-outstanding aggregate amount of all of the Revolving Credit Loans,
plus the Maximum Drawing Amount and all Unpaid Reimbursement Obligations shall
not at any time exceed the Total Commitment. Each request for a Swingline Loan
hereunder shall constitute a representation and warranty by the Borrower that
the conditions set forth in Section 12 have been satisfied on the date of such
request.
4.2. THE SWINGLINE NOTE. The Swingline Loan shall be evidenced by a
promissory note of the Borrower in substantially the form of Exhibit C hereto
(the "Swingline Note"), dated the Closing Date and completed with appropriate
insertions. The Swingline Note shall be payable to the order of the Swingline
Lender in a principal amount equal to the Swingline Commitment. The Borrower
irrevocably authorizes the Swingline Lender to make or cause to be made, at or
about the time of the Drawdown Date of any Swingline Loan or at the time of
receipt of any payment of principal on the Swingline Note, an appropriate
notation on the Swingline Lender's Swingline Note Record reflecting the making
of such Swingline Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Swingline Loans set forth on the Swingline Lender's
Swingline Note Record shall be prima facie evidence of the principal amount
thereof owing and unpaid to the Swingline Lender, but the failure to record, or
any error in so recording, any such amount on the Swingline Lender's Swingline
Note Record shall not limit or otherwise affect the obligations of the Borrower
hereunder or under the Swingline Note to make payments of principal of or
interest on the Swingline Note when due.
4.3. INTEREST ON SWINGLINE LOANS. Except as otherwise provided in Section
6.10, each Swingline Loan shall bear interest for the period commencing with the
Drawdown Date thereof and ending on the date of repayment thereof at a rate per
annum equal to the Base Rate. The Borrower promises to pay interest on each
Swingline Loan in arrears on the earlier to occur of (a) the day on which such
Swingline Loan is repaid and (b) the next occurring Interest Payment Date for
Base Rate Loans.
4.4. REQUESTS FOR SWINGLINE LOANS. The Borrower shall give to the Agent
written notice in the form of Exhibit B hereto (or telephonic notice confirmed
in a writing in the form of Exhibit B hereto) of each Swingline Loan requested
hereunder (a "Swingline Loan Request") no later than 11:00 a.m., California
time, on the proposed Drawdown Date of any Swingline Loan. Each such notice
shall specify (A) the principal amount of the Swingline Loan requested, and (B)
the proposed Drawdown Date of such Swingline Loan. At any time when the Agent is
not a Swingline Lender, the Agent shall promptly give the Swingline Lender
written notice (or telephonic notice promptly confirmed in writing) of each
proposed borrowing of Swingline Loans and of the other matters covered by the
Swingline Loan Request. Each Swingline Loan Request shall be irrevocable and
binding on the Borrower and shall obligate the Borrower to accept the Swingline
Loan requested from the Swingline Lender on the proposed Drawdown Date. Each
Swingline Loan Request shall be in a minimum amount of $10,000 or an integral
multiple thereof. Swingline Lender will use its best effort to honor each
Swingline Loan Request that is timely made pursuant to the terms hereof, but
Borrower agrees and acknowledges that the Swingline Lender shall incur no
liability as a result of its inability to fund the amount requested in any
Swingline Loan Request until the Business Day following the day on which such
Swingline Loan Request is made.
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4.5. LIMITATIONS ON SWINGLINE LENDER'S OBLIGATION TO MAKE SWINGLINE LOANS.
The Swingline Lender will not make any Swingline Loan after it has received
written notice from the Majority Lenders that one or more of the applicable
conditions precedent set forth in Section 12 are not then satisfied (provided
that the delivery and receipt of such written notice shall not limit, affect or
modify the Banks' obligations in respect of a Mandatory Borrowing in respect of
any Swingline Loan made prior to the receipt of such notice, as specified in
Section 4.6). In addition, at any time when there is a Delinquent Bank, the
Swingline Lender shall not be required to make a Swingline Loan exceeding the
aggregate unused Commitments of the Banks other than the Delinquent Bank, unless
the Swingline Lender has entered into arrangements satisfactory to it and the
Borrower to eliminate the Swingline Lender's risk with respect to the
participation in Mandatory Borrowings by the Delinquent Bank or Banks, including
by cash collateralizing same.
4.6. MANDATORY BORROWINGS. On any Business Day, either the Borrower or the
Swingline Lender may, in its sole discretion, give notice to Agent pursuant to
Section 2.6 that all then outstanding Swingline Loans shall be funded with a
borrowing of Revolving Credit Loans (provided that such notice shall be deemed
to have been automatically given by the Swingline Lender upon the occurrence of
a Default), in which case a borrowing of Revolving Credit Loans constituting
Base Rate Loans (each such borrowing, a "Mandatory Borrowing") shall be made on
the Drawdown Date set forth in the notice of such Mandatory Borrowing, by all
Banks pro rata in accordance with each Bank's Commitment Percentage, and the
proceeds thereof shall be applied directly to repay the Swingline Lender for all
outstanding Swingline Loans. Each Bank hereby irrevocably agrees to make
Revolving Credit Loans pursuant to each Mandatory Borrowing in the amount and in
the manner specified in the preceding sentence, and on the date specified in
writing by the Swingline Lender, notwithstanding (i) whether any conditions
specified in Section 12 are then satisfied; (ii) whether a Default or Event of
Default has occurred and is continuing; (iii) the date of such Mandatory
Borrowing; and (iv) any reduction in the Commitments after any such Swingline
Loans were made. In the event that any Mandatory Borrowing cannot for any reason
be made on the date otherwise required above (including, without limitation, as
a result of the commencement of a case under the Bankruptcy Code in respect of
Borrower), each Bank (other than the Swingline Lenders) hereby agrees that it
will forthwith purchase from the Swingline Lenders (without recourse or
warranty) such assignment of their outstanding Swingline Loans as shall be
necessary to cause the Banks to share in such Swingline Loans ratably based upon
their respective Commitment Percentages, provided that all interest payable on
such Swingline Loans shall be for the account of the Swingline Lenders until the
date the respective assignment is purchased and, to the extent attributable to
the purchased assignment, shall be payable to the Bank purchasing such
assignment from and after the date of purchase. Each Bank's obligations under
this Section 4.6 shall be absolute and unconditional.
5. LETTERS OF CREDIT.
5.1. LETTER OF CREDIT COMMITMENTS.
5.1.1. COMMITMENT TO ISSUE LETTERS OF CREDIT. Subject to the terms
and conditions hereof and the execution and delivery by the Borrower of a
fully-completed and executed letter of credit application on the Issuing
Bank's customary form (a "Letter
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of Credit Application"), the Issuing Bank on behalf of the Banks and in
reliance upon the agreement of the Banks set forth in Section 5.1.4 and
upon the representations and warranties of the Borrower contained herein,
agrees, in its individual capacity, to issue, extend and renew for the
account of the Borrower one or more standby or documentary letters of
credit (individually, a "Letter of Credit"), in such form as may be
requested from time to time by the Borrower and agreed to by the Issuing
Bank; provided, however, that, after giving effect to such request, (a)
the sum of the aggregate Maximum Drawing Amount and all Unpaid
Reimbursement Obligations shall not exceed $10,000,000 at any one time and
(b) the sum of (i) the Maximum Drawing Amount, (ii) all Unpaid
Reimbursement Obligations, and (iii) the amount of all Revolving Credit
Loans and Swingline Loans outstanding shall not exceed the Total
Commitment. Upon receipt of a Letter of Credit Application, the Issuing
Bank shall notify the Agent of such request for the issuance, extension or
renewal of a Letter of Credit, and the Agent shall confirm to the Issuing
Bank that after giving effect to such request, the sum of the Maximum
Drawing Amount plus all Unpaid Reimbursement Obligations plus all
outstanding Revolving Credit Loans, plus all outstanding Swingline Loans
does not exceed the Total Commitment. Notwithstanding the foregoing, the
Issuing Bank shall have no obligation to issue any Letter of Credit to
support or secure any Indebtedness of the Borrower or any of its
Subsidiaries to the extent that such Indebtedness was incurred prior to
the proposed issuance date of such Letter of Credit, unless in any such
case the Borrower demonstrates to the satisfaction of the Issuing Bank
that (x) such prior incurred Indebtedness was then fully-secured by a
perfected and unavoidable security interest in collateral provided by the
Borrower or such Subsidiary to the proposed beneficiary of such Letter of
Credit or (y) such prior incurred Indebtedness was then secured or
supported by a letter of credit issued for the account of the Borrower or
such Subsidiary and the reimbursement obligation with respect to such
letter of credit was fully-secured by a perfected and unavoidable security
interest in collateral provided to the issuer of such letter of credit by
the Borrower or such Subsidiary. Neither Issuing Bank shall issue any
Letter of Credit after it has received written notice from the Majority
Lenders that one or more of the applicable conditions precedent set forth
in Section 12 are not then satisfied (provided that the delivery and
receipt of such written notice shall not limit, affect or modify the
Banks' obligations in respect of unpaid reimbursement obligations under
Letters of Credit issued prior to the receipt of such notice, as specified
in Section 5.1.4).
5.1.2. LETTER OF CREDIT APPLICATIONS. Each Letter of Credit
Application shall be completed to the satisfaction of the Issuing Bank. In
the event that any provision of a Letter of Credit Application shall be
inconsistent with any provision of this Credit Agreement, then the
provision of this Credit Agreement shall, to the extent of any such
inconsistency, govern.
5.1.3. TERMS OF LETTERS OF CREDIT. Each Letter of Credit issued,
extended or renewed hereunder shall, among other things, (i) provide for
the payment of sight drafts for honor thereunder when presented in
accordance with the terms thereof and when accompanied by the documents
described therein, and (ii) have an expiry date no later than the date
which is fourteen (14) days (or, if the Letter of Credit is confirmed by a
confirmer or otherwise provides for one or more nominated persons,
forty-five (45) days)
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prior to the Maturity Date. Without limiting the generality of clause (ii)
of the immediately preceding sentence, each documentary Letter of Credit
issued, extended or renewed hereunder shall have an expiry date not later
than three hundred sixty (360) days after the date of its issuance,
extension or renewal. Each Letter of Credit so issued, extended or renewed
shall be subject to the Uniform Customs.
5.1.4. REIMBURSEMENT OBLIGATIONS OF BANKS. Each Bank severally
agrees that it shall be absolutely liable, without regard to the
occurrence of any Default or Event of Default or any other condition
precedent whatsoever, to the extent of such Bank's Commitment Percentage,
to reimburse the Issuing Bank on demand for the amount of each draft paid
by the Issuing Bank under each Letter of Credit to the extent that such
amount is not reimbursed by the Borrower pursuant to Section 5.2 (such
agreement for a Bank being called herein the "Letter of Credit
Participation" of such Bank).
5.1.5. PARTICIPATIONS OF BANKS. Each such payment made by a Bank
shall be treated as the purchase by such Bank of a participating interest
in the Borrower's Reimbursement Obligation under Section 5.2 in an amount
equal to such payment. Each Bank shall share in accordance with its
participating interest in any interest which accrues pursuant to Section
5.2.
5.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to induce the
Issuing Bank to issue, extend and renew each Letter of Credit and the Banks to
participate therein, the Borrower hereby agrees to reimburse or pay to the
Issuing Bank, for the account of the Issuing Bank or (as the case may be) the
Banks, with respect to each Letter of Credit issued, extended or renewed by the
Issuing Bank hereunder,
(a) except as otherwise expressly provided in Sections 5.2(b) and
(c), on each date that any draft presented under such Letter of Credit is
honored by the Issuing Bank, or the Issuing Bank otherwise makes a payment
with respect thereto, (i) the amount paid by the Issuing Bank under or
with respect to such Letter of Credit, and (ii) the amount of any taxes,
fees, charges or other costs and expenses whatsoever incurred by the
Issuing Bank or any Bank in connection with any payment made by the
Issuing Bank or any Bank under, or with respect to, such Letter of Credit,
(b) upon the reduction (but not termination) of the Total Commitment
to an amount less than the Maximum Drawing Amount, an amount equal to such
difference, which amount shall be held by the Issuing Bank for the benefit
of the Banks and the Issuing Bank as cash collateral for all Reimbursement
Obligations, and
(c) upon the termination of the Total Commitment, or the
acceleration of the Reimbursement Obligations with respect to all Letters
of Credit in accordance with Section 13, an amount equal to the then
Maximum Drawing Amount, which amount shall be held by the Issuing Bank for
the benefit of the Banks and the Issuing Bank as cash collateral for all
Reimbursement Obligations.
Each such payment shall be made to the Issuing Bank at the Issuing Bank's Head
Office in immediately available funds. Interest on any and all amounts remaining
unpaid by the Borrower
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under this Section 5.2 at any time from the date such amounts become due and
payable (whether as stated in this Section 5.2, by acceleration or otherwise)
until payment in full (whether before or after judgment) shall be payable to the
Issuing Bank on demand at the rate specified in Section 6.10 for overdue
principal on the Revolving Credit Loans.
5.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or other
demand for payment shall be made under any Letter of Credit, the Issuing Bank
shall notify the Borrower of the date and amount of the draft presented or
demand for payment and of the date and time when it expects to pay such draft or
honor such demand for payment. If the Borrower fails to reimburse the Issuing
Bank as provided in Section 5.2 on or before the date that such draft is paid or
other payment is made by the Issuing Bank, the Issuing Bank may at any time
thereafter notify the Banks of the amount of any such Unpaid Reimbursement
Obligation. No later than 11:00 a.m. (California time) on the Business Day next
following the receipt of such notice, each Bank shall make available to the
Issuing Bank, at the Issuing Bank's Head Office, in immediately available funds,
such Bank's Commitment Percentage of such Unpaid Reimbursement Obligation,
together with an amount equal to the product of (i) the average, computed for
the period referred to in clause (iii) of this sentence, of the weighted average
interest rate paid by the Issuing Bank for federal funds acquired by the Issuing
Bank during each day included in such period, times (ii) the amount equal to
such Bank's Commitment Percentage of such Unpaid Reimbursement Obligation, times
(iii) a fraction, the numerator of which is the number of days that elapse from
and including the date the Issuing Bank paid the draft presented for honor or
otherwise made payment to the date on which such Bank's Commitment Percentage of
such Unpaid Reimbursement obligation shall become immediately available to the
Issuing Bank, and the denominator of which is 365. The responsibility of the
Issuing Bank to the Borrower and the Banks shall be only to determine that the
documents (including each draft) delivered under each Letter of Credit in
connection with such presentment shall be in conformity in all material respects
with such Letter of Credit.
5.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this Section 5
shall be absolute and unconditional under any and all circumstances and
irrespective of the occurrence of any Default or Event of Default or any
condition precedent whatsoever or any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Issuing Bank, any Bank or
any beneficiary of a Letter of Credit. The Borrower further agrees with the
Agent, the Issuing Bank and the Banks that the Issuing Bank and the Banks shall
not be responsible for, and the Borrower's Reimbursement Obligations under
Section 5.2 shall not be affected by, among other things, the validity or
genuineness of documents or of any endorsements thereon, even if such documents
should in fact prove to be in any or all respects invalid, fraudulent or forged,
or any dispute between or among the Borrower, the beneficiary of any Letter of
Credit or any financing institution or other party to which any Letter of Credit
may be transferred or any claims or defenses whatsoever of the Borrower against
the beneficiary of any Letter of Credit or any such transferee. The Issuing Bank
and the Banks shall not be liable for any error, omission, interruption or delay
in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit. The Borrower agrees that
any action taken or omitted by the Issuing Bank or any Bank under or in
connection with each Letter of Credit and the related drafts and documents, if
done in good faith, shall be binding upon
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the Borrower and shall not result in any liability on the part of the Issuing
Bank or any Bank to the Borrower.
5.5. RELIANCE BY ISSUER. To the extent not inconsistent with Section 5.4,
the Issuing Bank shall be entitled to rely, and shall be fully protected in
relying upon, any Letter of Credit, draft, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel, independent accountants and
other experts selected by the Issuing Bank. The Issuing Bank shall be fully
justified in failing or refusing to take any action under this Credit Agreement
unless it shall first have received such advice or concurrence of the Majority
Banks as it reasonably deems appropriate or it shall first be indemnified to its
reasonable satisfaction by the Banks against any and all liability and expense
which may be incurred by it by reason of taking or continuing to take any such
action. The Issuing Bank shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement in accordance with a request of the
Majority Banks, and such request and any action taken or failure to act pursuant
thereto shall be binding upon the Banks and all future holders of the Revolving
Credit Notes, the Swingline Note or of a Letter of Credit Participation.
5.6. LETTER OF CREDIT FEE. The Borrower shall, on the date of issuance or
any extension or renewal of any Letter of Credit and at such other time or times
as such charges are customarily made by the Issuing Bank, pay a fee (in each
case, a "Letter of Credit Fee") to the Issuing Bank (i) in respect of each
standby Letter of Credit a percentage, equal to the LIBOR Spread in effect on
the date of such issuance, of the face amount of such standby Letter of Credit
plus the Issuing Bank's issuance fee equal to one-eighth of one percent (1/8%)
per annum of the face amount of such standby Letter of Credit; and (ii) in
respect of each documentary Letter of Credit, equal to the Issuing Bank's
customary fees for such Letter of Credit at such time plus, in each case, the
Issuing Bank's customary amendment and other administrative processing fees,
such Letter of Credit Fee (but not such issuance, amendment or administrative
fees) to be for the accounts of the Banks in accordance with their respective
Commitment Percentages. Nothing herein shall (A) effect any change in the Letter
of Credit Fee paid in connection with any Letters of Credit issued pursuant to
the Original Credit Agreement that are outstanding on the Closing Date or (B)
require any adjustment to any Letter of Credit Fee as a result of any subsequent
change in the LIBOR Spread. If any existing Letters of Credit of the type
described in clause (A) above are extended or renewed, the Letter of Credit Fee
for such extension or renewal shall be calculated pursuant to this Section 5.6.
6. CERTAIN GENERAL PROVISIONS.
6.1. AGENT'S FEE. The Borrower shall pay to the Agent an Agent's Fee in
accordance with the Fee Letter.
6.2. FUNDS FOR PAYMENTS.
6.2.1. PAYMENTS TO AGENT. All payments of principal, interest,
Reimbursement Obligations, Commitment Fees, Letter of Credit Fees and any
other amounts due hereunder or under any of the other Loan Documents shall
be made to the
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Agent, for the respective accounts of the Banks and the Agent, at the
Agent's Head Office or at such other location that the Agent may from time
to time designate, in each case in immediately available funds.
6.2.2. NO OFFSET, ETC. All payments by the Borrower hereunder or
under any of the other Loan Documents shall be made without setoff or
counterclaim and free and clear of, and without deduction for, any taxes,
levies, imposts, duties, charges, fees, deductions, withholdings,
compulsory loans, restrictions or conditions of any nature now or
hereafter imposed or levied by any jurisdiction or any political
subdivision thereof or taxing or other authority therein unless the
Borrower is compelled by law to make such deduction or withholding. If any
such obligation is imposed upon the Borrower with respect to any amount
payable by it hereunder or under any of the other Loan Documents, the
Borrower will pay to the Agent, for the account of the Banks or (as the
case may be) the Agent, on the date on which such amount is due and
payable hereunder or under such other Loan Document, such additional
amount in Dollars as shall be necessary to enable the Banks or the Agent
to receive the same net amount which the Banks or the Agent would have
received on such due date had no such obligation been imposed upon the
Borrower. The Borrower will deliver promptly to the Agent certificates or
other valid vouchers for all taxes or other charges deducted from or paid
with respect to payments made by the Borrower hereunder or under such
other Loan Document.
6.2.3. WITHHOLDING FORMS.
(a) Each Bank that is organized under the laws of a
jurisdiction outside the United States hereby agrees that, if and to
the extent it is legally able to do so and has not already done so,
it shall, prior to the date of the first payment by the Borrower
hereunder to be made to such Bank or for such Bank's account,
deliver to the Borrower and the Agent, as applicable, such
certificates, documents or other evidence, as and when required by
the Code or Treasury Regulations issued pursuant thereto, including
two (2) duly completed originals of Internal Revenue Service Form
1001 or Form 4224 and any other certificate or statement of
exemption required by Treasury Regulations, or any subsequent
versions thereof or successors thereto, properly completed and duly
executed by such Bank establishing that with respect to payments of
principal, interest or fees hereunder it is (i) not subject to
United States federal withholding tax under the Code because such
payment is effectively connected with the conduct by such Bank of a
trade or business in the United States or (ii) totally exempt from
United States federal withholding taxes under a provision of an
applicable tax treaty or, in the case of a Bank that is not a "bank"
under Section 881(c) of the Code, a Form W-8 and a certificate
stating that such Bank is not a "bank" within the meaning of the
aforementioned Code Section .
(b) The Borrower shall not be required to pay any additional
amounts to any Bank pursuant to this Section 6.2, if (i) the
obligation to pay such additional amounts would not have arisen but
for a failure by such Bank to deliver the forms contemplated by this
Section 6.2.3; or (ii) the Bank is not eligible for complete
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exemption from United States federal withholding tax with respect to
payments of interest, principal or fees under this Credit Agreement
or under any of the other Loan Documents, other than by reason of
any change, after the Initial Date, of any applicable law, treaty or
regulations by any governmental authority or other agency charged
with the interpretation or administration thereof. For purposes of
this Section 6.2.3, the term "Initial Date" shall mean, with respect
to any Bank which is a party hereto on the date hereof, the date
hereof, and with respect to each assignee or transferee of any Bank,
the date of the grant of the participation in, or transfer or
assignment of an interest hereunder to, such assignee or transferee.
(c) If at any time any Bank makes any changes necessitating a
new Form 4224 or Form 1001 or Form W-8, if applicable, it shall:
(i) with reasonable promptness deliver to the Borrower
in replacement for, or in addition to, the forms previously
delivered by it hereunder, two completed originals of Form 1001 or
Form 4224 or Form W-8, as appropriate, in each case properly
completed and duly executed by such Bank establishing that such Bank
is on the date of delivery thereof entitled to receive payments of
principal, interest and fees under this Credit Agreement free from
withholding of United States Federal income tax;
(ii) before or promptly after the occurrence of any
event (including the passing of time but excluding any event
mentioned in (i) above) requiring a change in the most recent Form
4224, Form 1001, or, as the case may be, Form W-8 previously
delivered by such Bank and if the delivery of the same be lawful,
deliver to the Borrower two completed originals of Form 4224, Form
1001, or, as the case may be, Form W-8 in replacement for the forms
previously delivered by the relevant Bank, in each case properly
completed and duly executed; and
(iii) promptly upon the Borrower's reasonable request,
deliver to the Borrower such other forms or similar documentation as
may be required from time to time by any applicable law, treaty,
rule or regulation in order to establish such Bank's tax status for
withholding purposes.
(d) If the Borrower is required to pay any additional amounts
to any Bank on account of required withholdings pursuant to this
Section 6.2.3, then such Bank shall use its reasonable best efforts
(consistent with legal and regulatory restrictions) to change the
jurisdiction of its lending office so as to minimize any additional
payments which may thereafter accrue; provided, that no Bank shall
be required to change its lending office if such change would be, in
the sole judgment of such Bank, otherwise disadvantageous to such
Bank.
6.3. COMPUTATIONS. All computations of interest on the Loans and of
Commitment Fees, Letter of Credit Fees or other fees shall, unless otherwise
expressly provided herein, be based on a 360-day year and paid for the actual
number of days elapsed. Except as otherwise provided in the definition of the
term "Interest Period" with respect to LIBOR Rate Loans,
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whenever a payment hereunder or under any of the other Loan Documents becomes
due on a day that is not a Business Day, the due date for such payment shall be
extended to the next succeeding Business Day, and interest shall accrue during
such extension. The outstanding amount of the Loans as reflected on the
Revolving Credit Note Records and the Swingline Note Record from time to time
shall be considered correct and binding on the Borrower absent manifest error.
6.4. INABILITY TO DETERMINE LIBOR RATE. In the event, prior to the
commencement of any Interest Period relating to any LIBOR Rate Loan, the Agent
shall determine or be notified by the Majority Banks that adequate and
reasonable methods do not exist for ascertaining the LIBOR Rate that would
otherwise determine the rate of interest to be applicable to any LIBOR Rate Loan
during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Banks) to the Borrower and the Banks. In such event (i) any Loan Request or
Conversion Request with respect to LIBOR Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (ii) each LIBOR
Rate Loan will automatically, on the last day of the then current Interest
Period relating thereto, become a Base Rate Loan, and (iii) the obligations of
the Banks to make LIBOR Rate Loans shall be suspended until the Agent or the
Majority Banks determines that the circumstances giving rise to such suspension
no longer exist, whereupon the Agent or, as the case may be, the Agent upon the
instruction of the Majority Banks, shall so notify the Borrower and the Banks.
6.5. ILLEGALITY. Notwithstanding any other provisions herein, if any
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
LIBOR Rate Loans, such Bank shall forthwith give notice of such circumstances to
the Borrower and the other Banks and thereupon (i) the commitment of such Bank
to make LIBOR Rate Loans or convert Loans of another Type to LIBOR Rate Loans
shall forthwith be suspended and (ii) such Bank's Revolving Credit Loans then
outstanding as LIBOR Rate Loans, if any, shall be converted automatically to
Base Rate Loans on the last day of each Interest Period applicable to such LIBOR
Rate Loans or within such earlier period as may be required by law. The Borrower
hereby agrees promptly to pay the Agent for the account of such Bank, upon
demand by such Bank, any additional amounts necessary to compensate such Bank
for any costs incurred by such Bank in making any conversion in accordance with
this Section 6.5, including any interest or fees payable by such Bank to lenders
of funds obtained by it in order to make or maintain its LIBOR Rate Loans
hereunder.
6.6. ADDITIONAL COSTS, ETC. If after the Closing Date any present or
future applicable law, which term, as used herein, includes statutes, rules and
regulations thereunder and interpretations thereof by any competent court or by
any governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to time hereafter made upon or
otherwise issued to any Bank or the Agent by any central bank or other fiscal,
monetary or other authority (whether or not having the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other
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Loan Documents, any Letters of Credit, such Bank's Commitment or the Loans
(other than taxes based upon or measured by the income or profits of such
Bank or the Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Loans or any other amounts payable to any Bank or the
Agent under this Credit Agreement or any of the other Loan Documents, or
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Credit Agreement) any
special deposit, reserve, assessment, liquidity, capital adequacy or other
similar requirements (whether or not having the force of law) against
assets held by, or deposits in or for the account of, or loans by, or
letters of credit issued by, or commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Loans, such Bank's Commitment, or
any class of loans, letters of credit or commitments of which any of the
Loans, the Letters of Credit or such Bank's Commitment forms a part, and
the result of any of the foregoing is
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Loans or such
Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest,
Reimbursement Obligation or other amount payable to such Bank or the
Agent hereunder on account of such Bank's Commitment, any Letter of
Credit or any of the Loans, or
(iii) to require such Bank or the Agent to make any
payment or to forgo any interest or Reimbursement Obligation or
other sum payable hereunder, the amount of which payment or forgone
interest or Reimbursement Obligation or other sum is calculated by
reference to the gross amount of any sum receivable or deemed
received by such Bank or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank or
(as the case may be) the Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to such Bank or the Agent such additional
amounts as would be sufficient to compensate such Bank or the Agent for such
additional cost, reduction, payment or forgone interest or Reimbursement
Obligation or other sum.
6.7. CAPITAL ADEQUACY. If after the date hereof any Bank or the Agent
determines that (i) the adoption of or change in any law, governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law) regarding capital requirements for banks or bank holding companies or any
change in the interpretation or application thereof by a court or governmental
authority with appropriate jurisdiction, or (ii) compliance by such Bank or the
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Agent or any corporation controlling such Bank or the Agent with any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) of any such entity regarding capital adequacy, has the
effect of reducing the return on such Bank's or the Agent's commitment with
respect to any Loans to a level below that which such Bank or the Agent could
have achieved but for such adoption, change or compliance (taking into
consideration such Bank's or the Agent's then existing policies with respect to
capital adequacy and assuming full utilization of such entity's capital) by any
amount deemed by such Bank or (as the case may be) the Agent to be material,
then such Bank or the Agent may notify the Borrower of such fact. To the extent
that the amount of such reduction in the return on capital is not reflected in
the Base Rate, the Borrower and such Bank shall thereafter attempt to negotiate
in good faith, within thirty (30) days after the day on which the Borrower
receives such notice, an adjustment payable hereunder that will adequately
compensate such Bank in light of these circumstances. If the Borrower and such
Bank are unable to agree to such adjustment within thirty (30) days after the
date on which the Borrower receives such notice, then commencing on the date of
such notice (but not earlier than the effective date of any such increased
capital requirement), the fees payable to such Bank hereunder shall increase by
an amount that will, in such Bank's reasonable determination, provide adequate
compensation. Each Bank shall allocate such cost increases among its customers
in good faith and on an equitable basis.
6.8. CERTIFICATE. A certificate setting forth any additional amounts
payable pursuant to Section 6.6 or Section 6.7 and a brief explanation of such
amounts which are due, submitted by any Bank or the Agent to the Borrower, shall
constitute prima facie evidence that such amounts are due and owing.
6.9. INDEMNITY. The Borrower agrees to indemnify each Bank and to hold
each Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (i)
default by the Borrower in payment of the principal amount of or any interest on
any LIBOR Rate Loans as and when due and payable, including any such loss or
expense arising from interest or fees payable by such Bank to lenders of funds
obtained by it in order to maintain its LIBOR Rate Loans, (ii) default by the
Borrower in making a borrowing or conversion after the Borrower has given (or is
deemed to have given) a Loan Request or a Conversion Request relating thereto in
accordance with Section 2.6, Section 2.7 or 4.4 or (iii) the making of any
payment of a LIBOR Rate Loan or the making of any conversion of any such LIBOR
Rate Loan to a Base Rate Loan on a day that is not the last day of the
applicable Interest Period with respect thereto, including interest or fees
payable by such Bank to lenders of funds obtained by it in order to maintain any
such Loans.
6.10. INTEREST AFTER DEFAULT. Overdue principal and (to the extent
permitted by applicable law) interest on the Loans and all other overdue amounts
payable hereunder or under any of the other Loan Documents shall bear interest
compounded monthly and payable on demand at a rate per annum equal to two
percent (2%) above the interest rate then otherwise applicable to such Loans
hereunder until such amount shall be paid in full (after as well as before
judgment).
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7. REPRESENTATIONS AND WARRANTIES.
As of the date of this Agreement, the Closing Date, each Drawdown Date,
and the date of the issuance, extension, or renewal of any Letter of Credit, the
Borrower represents and warrants to each of the Banks and the Agent as follows:
7.1. CORPORATE AUTHORITY.
7.1.1. INCORPORATION: GOOD STANDING. Each of the Borrower and its
Subsidiaries (i) is a corporation duly organized, validly existing and in
good standing under the laws of its state of incorporation, (ii) has all
requisite corporate power to own its property and conduct its business as
now conducted and as presently contemplated, and (iii) is in good standing
as a foreign corporation and is duly authorized to do business in each
jurisdiction where such qualification is necessary except where a failure
to be so qualified would not have a materially adverse effect on the
business, assets or financial condition of the Borrower or such
Subsidiary.
7.1.2. AUTHORIZATION. The execution, delivery and performance of
this Credit Agreement and the other Loan Documents to which the Borrower
or any of its Subsidiaries is or is to become a party and the transactions
contemplated hereby and thereby (i) are within the corporate authority of
such Person, (ii) have been duly authorized by all necessary corporate
proceedings, (iii) do not conflict with or result in any breach or
contravention of any provision of law, statute, rule or regulation to
which such Person is subject or any judgment, order, writ, injunction,
license or permit applicable to such Person and (iv) do not conflict with
any provision of the corporate charter or bylaws of', or any agreement or
other instrument binding upon, the Borrower or any of its Subsidiaries.
7.1.3. ENFORCEABILITY. The execution and delivery of this Credit
Agreement and the other Loan Documents to which the Borrower or any of its
Subsidiaries is or is to become a party will result in valid and legally
binding obligations of such Person enforceable against it in accordance
with the respective terms and provisions hereof and thereof, except as
enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the
enforcement of creditors' rights and except to the extent that
availability of the remedy of specific performance or injunctive relief or
other equitable remedy is subject to the discretion of the court before
which any proceeding therefor may be brought.
7.2. GOVERNMENTAL APPROVALS. The execution, delivery and performance by
the Borrower and any of its Subsidiaries of this Credit Agreement and the other
Loan Documents to which the Borrower or any of its Subsidiaries is or is to
become a party and the transactions contemplated hereby and thereby do not
require the approval or consent of' or filing with, any governmental agency or
authority other than those already obtained.
7.3. FINANCIAL STATEMENTS. There has been furnished to each of the Banks a
consolidated balance sheet of the Borrower and its Subsidiaries as at the
Balance Sheet Date, and a consolidated statement of income of the Borrower
and its Subsidiaries for the
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fiscal year then ended, certified by Coopers & Lybrand LLP as fairly
presenting the consolidated financial position of the Borrower as at such
date and for such period in all material respects in accordance with
generally accepted accounting principles. Such balance sheet and statement
of income have been prepared in accordance with generally accepted
accounting principles and fairly present the financial condition of the
Borrower as at the close of business on the date thereof and the results
of operations for the fiscal year then ended. There are no contingent
liabilities of the Borrower or any of its Subsidiaries as of such date
involving material amounts, known to the officers of the Borrower, which
were not disclosed in such balance sheet and the notes related thereto.
7.4. NO MATERIAL CHANGES, ETC.; SOLVENCY.
7.4.1. CHANGES. Since the Balance Sheet Date, there has occurred no
materially adverse change in the financial condition or business of the
Borrower and its Subsidiaries as shown on or reflected in the consolidated
balance sheet of the Borrower and its Subsidiaries as at the Balance Sheet
Date, or the consolidated statement of income for the fiscal year then
ended, other than changes in the ordinary course of business that have not
had any materially adverse effect, either individually or in the
aggregate, on the business or financial condition of the Borrower or any
of its Subsidiaries. Since the Balance Sheet Date, the Borrower has not
made any Distribution.
7.4.2. SOLVENCY. The Borrower and its Subsidiaries, taken as a
whole, are, and will be after giving effect to the transactions
contemplated by the Loan Documents, Solvent. As used herein, "Solvent"
shall mean that the Borrower and its Subsidiaries, taken as a whole, (i)
shall have a fair value and present fair saleable value of their assets
that would exceed their stated liabilities and identified contingent
liabilities, (ii) should be able to pay their debts as such debts become
absolute and mature, and (iii) have and expect to continue to have, access
to capital that would not be unreasonably small for the conduct of their
business as now conducted and as proposed to be conducted following the
Closing Date.
7.5. FRANCHISES; PATENTS; COPYRIGHTS, ETC. Each of the Borrower and its
Subsidiaries possesses all franchises, patents, copyrights, trademarks, trade
names, licenses and permits, and rights in respect of the foregoing, adequate
for the conduct of its business substantially as now conducted without known
conflict with any rights of others.
7.6. LITIGATION. Except as set forth in Schedule 7.6 hereto, there are no
actions, suits, proceedings or investigations of any kind pending or threatened
against the Borrower or any of its Subsidiaries before any court, tribunal or
administrative agency or board that, if adversely determined, either in any case
or in the aggregate, could reasonably be expected to materially adversely affect
the properties, assets, financial condition or business of the Borrower and its
Subsidiaries or materially impair the right of the Borrower and its
Subsidiaries, considered as a whole, to carry on business substantially as now
conducted by them, or result in any substantial liability not adequately covered
by insurance, or for which adequate reserves are not maintained on the
consolidated balance sheet of the Borrower and its Subsidiaries, or which
question the validity of this Credit Agreement or any of the other Loan
Documents, or any action taken or to be taken pursuant hereto or thereto.
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7.7. NO MATERIALLY ADVERSE CONTRACTS, ETC. Neither the Borrower nor any of
its Subsidiaries is subject to any charter, corporate or other legal
restriction, or any judgment, decree, order, rule or regulation that has or is
expected in the future to have a materially adverse effect on the business,
assets or financial condition of the Borrower or any of its Subsidiaries.
Neither the Borrower nor any of its Subsidiaries is a party to any contract or
agreement that has or is expected, in the reasonable judgment of the Borrower's
officers, to have a materially adverse effect on the business, assets or
financial condition of the Borrower or any of its Subsidiaries.
7.8. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. Neither the Borrower
nor any of its Subsidiaries is in violation of any provision of its charter
documents, bylaws, or any agreement or instrument to which it may be subject or
by which it or any of its properties may be bound or any decree, order,
judgment, statute, license, rule or regulation, in any of the foregoing cases in
a manner that could result in the imposition of substantial penalties or
materially and adversely affect the financial condition, properties or business
of the Borrower or any of its Subsidiaries.
7.9. TAX STATUS. The Borrower and its Subsidiaries (i) have made or filed
all federal and state income and all other tax returns, reports and declarations
required by any jurisdiction to which any of them is subject, (ii) have paid all
taxes and other governmental assessments and charges shown or determined to be
due on such returns, reports and declarations, except those being contested in
good faith and by appropriate proceedings and (iii) have set aside on their
books provisions reasonably adequate for the payment of all taxes for periods
subsequent to the periods to which such returns, reports or declarations apply.
There are no unpaid taxes in any material amount claimed to be due by the taxing
authority of any jurisdiction, and the officers of the Borrower know of no basis
for any such claim.
7.10. NO EVENT OF DEFAULT. No Default or Event of Default has occurred and
is continuing.
7.11. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither the Borrower
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is it an
"investment company", or an "affiliated company" or a "principal underwriter" of
an "investment company", as such terms are defined in the Investment Company Act
of 1940.
7.12. ABSENCE OF FINANCING STATEMENTS, ETC. Except with respect to
Permitted Liens, there is no financing statement, security agreement, chattel
mortgage, real estate mortgage or other document filed or recorded with any
filing records, registry or other public office, that purports to cover, affect
or give notice of any present or possible future lien on, or security interest
in, any assets or property of the Borrower or any of its Subsidiaries or any
rights relating thereto.
7.13. CERTAIN TRANSACTIONS. Except for arm's length transactions pursuant
to which the Borrower or any of its Subsidiaries makes payments in the ordinary
course of business upon terms no less favorable than the Borrower or such
Subsidiary could obtain from third parties, none of the officers, directors, or
employees of the Borrower or any of its Subsidiaries is
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presently a party to any transaction with the Borrower or any of its
Subsidiaries (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the
furnishing of services to or by, providing for rental of real or personal
property to or from, or otherwise requiring payments to or from any officer,
director or such employee or, to the knowledge of the Borrower, any corporation,
partnership, trust or other entity in which any officer, director, or any such
employee has a substantial interest or is an officer, director, trustee or
partner.
7.14. EMPLOYEE BENEFIT PLANS.
7.14.1. IN GENERAL. Each Employee Benefit Plan has been maintained
and operated in compliance in all material respects with the provisions of
ERISA and, to the extent applicable, the Code including, but not limited
to, the provisions thereunder respecting prohibited transactions. The
Borrower has heretofore delivered to the Agent the most recently completed
annual report, Form 5500, with all required attachments, and actuarial
statement required to be submitted under Section 103(d) of ERISA, with
respect to each Guaranteed Pension Plan.
7.14.2. TERMINABILITY OF WELFARE PLANS. Under each Employee Benefit
Plan which is an employee welfare benefit plan within the meaning of
Section 3(1) or Section 3(2)(B) of ERISA, no benefits are due unless the
event giving rise to the benefit entitlement occurs prior to plan
termination (except as required by Title I, Part 6 of ERISA). The Borrower
or an ERISA Affiliate, as appropriate, may terminate each such Plan at any
time (or at any time subsequent to the expiration of any applicable
bargaining agreement) in the discretion of the Borrower or such ERISA
Affiliate without liability to any Person.
7.14.3. GUARANTEED PENSION PLANS. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of Section 302(f) of ERISA, or otherwise, has been timely made.
No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed
Pension Plan. No liability to the PBGC (other than required insurance
premiums, all of which have been paid) has been incurred by the Borrower
or any ERISA Affiliate with respect to any Guaranteed Pension Plan and
there has not been any ERISA Reportable Event, or any other event or
condition which presents a material risk of termination of any Guaranteed
Pension Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within twelve months prior to
the date of this representation), and on the actuarial methods and
assumptions employed for that valuation, the aggregate benefit liabilities
of all such Guaranteed Pension Plans within the meaning of Section 4001 of
ERISA did not exceed the aggregate value of the assets of all such
Guaranteed Pension Plans, disregarding for this purpose the benefit
liabilities and assets of any Guaranteed Pension Plan with assets in
excess of benefit liabilities.
7.14.4. MULTIEMPLOYER PLANS. Neither the Borrower nor any ERISA
Affiliate has incurred any material liability (including secondary
liability) to any Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan under Section 4201 of ERISA or as
a result of a sale of assets described in Section 4204 of ERISA. Neither
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the Borrower nor any ERISA Affiliate has been notified that any
Multiemployer Plan is in reorganization or insolvent under and within the
meaning of Section 4241 or Section 4245 of ERISA or that any Multiemployer
Plan intends to terminate or has been terminated under Section 4041A of
ERISA.
7.15. REGULATIONS U AND X. The proceeds of the Loans shall be used solely
for general corporate purposes including working capital and Capital
Expenditures of the Borrower. The Borrower will obtain Letters of Credit solely
for working capital and general corporate purposes. No portion of any Loan is to
be used, and no portion of any Letter of Credit is to be obtained, for the
purpose of purchasing or carrying any "margin security" or "margin stock" as
such terms are used in Regulations U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R. Parts 221 and 224.
7.16. ENVIRONMENTAL COMPLIANCE. The Borrower, and each of its
Subsidiaries, has obtained all permits, licenses and other authorizations which
are required under all Environmental Laws, except to the extent failure to have
any such permit, license or authorization would not have a material adverse
effect on the business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole. The Borrower, and each of its Subsidiaries, is
in compliance in all material respects with the terms and conditions of all such
permits, licenses and authorizations, and is also in compliance with all other
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules, and timetables contained in any applicable Environmental
Law, except to the extent failure to comply would not have a material adverse
effect on the business, assets or financial condition of the Borrower and its
Subsidiaries, taken as a whole.
7.17. SUBSIDIARIES, ETC. The Borrower currently has no Subsidiaries except
HMT FSC Ltd., a Barbados West Indies Company. Except as set forth on Schedule
7.17 hereto the Borrower is not engaged in any joint venture or partnership with
any other Person.
7.18. FISCAL YEAR. The Borrower and each of its Subsidiaries has a fiscal
year which is twelve (12) calendar months ending on March 31 of each year.
7.19. NO AMENDMENTS TO CERTAIN DOCUMENTS. The Borrower has not amended any
of the Recapitalization Documents insofar as they relate to the character of the
Preferred Stock of the Borrower, has not amended any of the Subordinated Debt
Documents, and has not otherwise amended any of the Recapitalization Documents
in any way that could materially adversely affect the interest of the Banks.
7.20. DISCLOSURE. No representation or warranty made by the Borrower in
this Credit Agreement or in any of the other Loan Documents or in any agreement,
instrument, document, certificate, statement or letter furnished to any of the
Bank Agents or any Bank by or on behalf of the Borrower as requested by the
Borrower in connection with any of the transactions contemplated by any of the
Loan Documents contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances in which they are made.
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8. AFFIRMATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note, or other amount in respect
of any of the foregoing, is outstanding or any Bank has any obligation to make
any Loans or the Issuing Bank has any obligation to issue, extend or renew any
Letters of Credit:
8.1. PUNCTUAL PAYMENT. The Borrower will duly and punctually pay or cause
to be paid the principal and interest on the Loans, all Reimbursement
Obligations, the Letter of Credit Fees, the Commitment Fees, the Agent's fee and
all other amounts provided for in this Credit Agreement and the other Loan
Documents to which the Borrower or any of its Subsidiaries is a party, all in
accordance with the terms of this Credit Agreement and such other Loan
Documents.
8.2. MAINTENANCE OF OFFICE. The Borrower will maintain its chief executive
office at 1055 Page Avenue, Fremont, California 94538, or at such other place in
the United States of America as the Borrower shall designate upon written notice
to the Agent, where notices, presentations and demands to or upon the Borrower
in respect of the Loan Documents to which the Borrower is a party may be given
or made.
8.3. RECORDS AND ACCOUNTS. The Borrower will (i) keep, and cause each of
its Subsidiaries to keep, true and accurate records and books of account in
which full, true and correct entries will be made in accordance with generally
accepted accounting principles and (ii) maintain adequate accounts and reserves
for all taxes (including income taxes), depreciation, depletion, obsolescence
and amortization of its properties and the properties of its Subsidiaries,
contingencies, and other reserves.
8.4. FINANCIAL STATEMENTS CERTIFICATES AND INFORMATION. The Borrower will
deliver to each of the Banks :
(a) Promptly upon filing with the Securities and Exchange
Commission, and in no event later than ninety (90) days after the
Borrower's fiscal year end, annual financial statements for such fiscal
year, which may include a copy of the Borrower's Annual Report as filed
with Form 10-K, but shall include in any event (i) the consolidated
balance sheets of the Borrower and its Subsidiaries, and (ii) the related
consolidated statements of income and statements of cash flow, each
setting forth in comparative form the figures for the previous fiscal year
and in reasonable detail and prepared in accordance with generally
accepted accounting principles. All such statements shall be certified
without qualification by Coopers & Lybrand LLP or by other independent
certified public accountants satisfactory to the Agent, and shall be
accompanied by copies of any "management letter" provided by such
accountants and by a written statement from such accountants to the effect
that, in making the examination necessary to said certification, they have
obtained no knowledge of any Default or Event of Default, or, if such
accountants shall have obtained knowledge of any then existing Default or
Event of Default they shall disclose in such statement the nature of any
such Default or Event of Default; provided that such accountants shall not
be liable to the Banks for failure to obtain knowledge of any Default or
Event of Default;
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(b) Promptly upon filing with the Securities and Exchange Commission
and in no event later than forty-five (45) days after the end of each
fiscal quarter of the Borrower, quarterly financial statements for such
quarter, which may include a copy of the financial reports as filed with
Form 10-Q for such fiscal quarter, but shall include in any event (i) the
consolidated balance sheets of the Borrower and its Subsidiaries as at the
end of such quarter, and (ii) the related consolidated statements of
income and statements of cash flow for the portion of the Borrower's
fiscal year then elapsed, all in reasonable detail and prepared in
accordance with generally accepted accounting principles, together with a
certification by the principal financial or accounting officer of the
Borrower that the information contained in such financial statements
fairly presents the financial position of the Borrower and its
Subsidiaries on the date thereof (subject to customary year-end
adjustments).
(c) simultaneously with the delivery of the financial statements
referred to in subsections (a) and (b) above, (i) a statement certified by
the principal financial or accounting officer of the Borrower in
substantially the form of Exhibit D hereto (a "Compliance Certificate")
and setting forth in reasonable detail computations evidencing compliance
with the covenants contained in Section 10 and (if applicable)
reconciliations to reflect changes in generally accepted accounting
principles since the Balance Sheet Date, and (ii) if an Event of Default
has occurred and is continuing, and if Borrower has received a request
from the Agent therefor, the consolidating financial statements relating
to the statements delivered pursuant to subsections (a) and (b) above;
(d) contemporaneously with the filing or mailing thereof, copies of
all material of a financial nature filed with the Securities and Exchange
Commission or sent generally to the stockholders of the Borrower;
(e) No later than ninety (90) days after the end of each fiscal year
of the Borrower, financial projections of the Borrower and its
Subsidiaries on a consolidated basis for the immediately upcoming fiscal
year of the Borrower;
(f) from time to time such other financial data and information
(including accountants' management letters) as the Agent or any Bank may
reasonably request.
8.5. NOTICES.
8.5.1. DEFAULTS. The Borrower will promptly notify the Agent and
each of the Banks in writing of the occurrence of any Default or Event of
Default. If any Person shall give any notice or take any other action in
respect of a claimed default (whether or not constituting an Event of
Default) under this Credit Agreement or any other note, evidence of
indebtedness, indenture or other obligation to which or with respect to
which the Borrower or any of its Subsidiaries is a party or obligor,
whether as principal, guarantor, surety or otherwise, the Borrower shall
forthwith give written notice thereof to the Agent and each of the Banks,
describing the notice or action and the nature of the claimed default.
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8.5.2. ENVIRONMENTAL EVENTS. The Borrower will promptly give notice
to the Agent and each of the Banks (i) of any violation of any
Environmental Law that the Borrower or any of its Subsidiaries reports in
writing or is reportable by such Person in writing (or for which any
written report supplemental to any oral report is made) to any federal,
state or local environmental agency and (ii) upon becoming aware thereof
of any inquiry, proceeding, investigation, or other action, including a
notice from any agency of potential environmental liability, of any
federal, state or local environmental agency or board, that has the
potential to materially affect the assets, liabilities, financial
conditions or operations of the Borrower and its Subsidiaries, taken as a
whole.
8.5.3. NOTICE OF LITIGATION AND JUDGMENTS. The Borrower will, and
will cause each of its Subsidiaries to, give notice to the Agent and each
of the Banks in writing within fifteen (15) days after becoming aware of
any litigation or proceedings threatened in writing or any pending
litigation and proceedings affecting the Borrower or any of its
Subsidiaries or to which the Borrower or any of its Subsidiaries is or
becomes a party involving a claim against the Borrower or any of its
Subsidiaries that could reasonably be expected to have a materially
adverse effect on the Borrower and its Subsidiaries (on a consolidated
basis) and stating the nature and status of such litigation or
proceedings. The Borrower will, and will cause each of its Subsidiaries
to, give notice to the Agent and each of the Banks, in writing, in form
and detail satisfactory to the Agent, within ten (10) days of any final
judgment, against the Borrower or any of its Subsidiaries in an amount in
excess of $2,000,000.
8.6. CORPORATE EXISTENCE: MAINTENANCE OF PROPERTIES. The Borrower will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence, rights and franchises and those of its
Subsidiaries and will not, and will not cause or permit any of its Subsidiaries
to, convert to a limited liability company or a limited liability partnership.
It (i) will cause all of its properties and those of its Subsidiaries used or
useful in the conduct of its business or the business of its Subsidiaries to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment; (ii) will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Borrower may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
and (iii) will, and will cause each of its Subsidiaries to, continue to engage
primarily in the businesses now conducted by them and in related businesses;
provided that nothing in this Section 8.6 shall prevent the Borrower from
discontinuing the operation and maintenance of any of its properties or any of
those of its Subsidiaries if such discontinuance is, in the reasonable judgment
of the Borrower, desirable in the conduct of its or their business and that do
not in the aggregate materially adversely affect the business of the Borrower
and its Subsidiaries on a consolidated basis.
8.7. INSURANCE. The Borrower will, and will cause each of its Subsidiaries
to, maintain with financially sound and reputable insurers insurance with
respect to its properties and business against such casualties and contingencies
as shall be in accordance with the general practices of similar size businesses
engaged in similar activities in similar geographic areas and in amounts,
containing such terms, in such forms and for such periods as may be reasonable
and prudent.
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8.8. TAXES. The Borrower will, and will cause each of its Subsidiaries to,
duly pay and discharge, or cause to be paid and discharged, before the same
shall become overdue, all taxes, assessments and other governmental charges
imposed upon it and its real properties, sales and activities, or any part
thereof, or upon the income or profits therefrom, as well as all claims for
labor, materials, or supplies that if unpaid might by law become a lien or
charge upon any of its property; provided that any such tax, assessment, charge,
levy or claim need not be paid if the validity or amount thereof shall currently
be contested in good faith by appropriate proceedings and if the Borrower or
such Subsidiary shall have set aside on its books adequate reserves with respect
thereto; and provided further that the Borrower and each Subsidiary of the
Borrower will pay all such taxes, assessments, charges, levies or claims
forthwith upon the commencement of proceedings to foreclose any lien that may
have attached as security therefor.
8.9. INSPECTION OF PROPERTIES AND BOOKS, ETC.
8.9.1. GENERAL. The Borrower shall permit the Banks, through the
Agent or any of the Banks' other designated representatives, to visit and
inspect any of the properties of the Borrower or any of its Subsidiaries,
to examine the books of account of the Borrower and its Subsidiaries (and
to make copies thereof and extracts therefrom), and to discuss the
affairs, finances and accounts of the Borrower and its Subsidiaries with,
and to be advised as to the same by, its and their officers, all at such
reasonable times and intervals as the Agent or any Bank may reasonably
request.
8.9.2. COMMERCIAL FINANCE EXAMINATIONS. If an Event of Default shall
have occurred and be continuing, at the Agent's request, the Borrower
shall permit the Bank Agents' commercial finance examiners to conduct
commercial finance examinations of the Borrower's and its Subsidiaries'
property, all at such reasonable times and intervals as the Agent may
reasonably request. All such commercial finance examinations shall be
conducted and made at the expense of the Borrower.
8.9.3. COMMUNICATIONS WITH ACCOUNTANTS. The Borrower will, at the
reasonable request of the Agent, authorize the Agent and, if accompanied
by the Agent, the Banks to communicate directly with the Borrower's
independent certified public accountants and hereby authorizes such
accountants to disclose to the Agent and the Banks any and all financial
statements and other supporting financial documents and schedules with
respect to the business, financial condition, assets and other affairs of
the Borrower or any of its Subsidiaries. At the reasonable request of the
Agent, the Borrower shall deliver a letter addressed to such accountants
instructing them to comply with the provisions of this Section 8.9.3.
8.10. COMPLIANCE WITH LAWS, CONTRACTS, LICENSES, AND PERMITS. The Borrower
will, and will cause each of its Subsidiaries to, comply with (i) the applicable
laws and regulations wherever its business is conducted, including all
Environmental Laws, (ii) the provisions of its charter documents and by-laws,
(iii) all agreements and instruments by which it or any of its properties is or
may be bound and (iv) all applicable decrees, orders, and judgments. If any
authorization, consent, approval, permit or license from any officer, agency or
instrumentality of any government shall become necessary or required in order
that the Borrower or any of its Subsidiaries may fulfill any of its obligations
hereunder or any of the other Loan Documents to
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which the Borrower or such Subsidiary is a party, the Borrower will, or (as the
case may be) will cause such Subsidiary to, immediately take or cause to be
taken all reasonable steps within the power of the Borrower or such Subsidiary
to obtain such authorization, consent, approval, permit or license and furnish
the Agent and the Banks with evidence thereof.
8.11. EMPLOYEE BENEFIT PLANS. The Borrower will (i) promptly upon filing
the same with the Department of Labor or Internal Revenue Service, upon request
of the Agent, furnish to the Agent a copy of the most recent actuarial statement
required to be submitted under Section 103(d) of ERISA and Annual Report, Form
5500, with all required attachments, in respect of each Guaranteed Pension Plan
and (ii) promptly upon receipt or dispatch, furnish to the Agent any notice,
report or demand sent or received in respect of a Guaranteed Pension Plan under
Sections 302, 4041, 4042, 4043, 4063, 4065, 4066, and 4068 of ERISA, or in
respect of a Multiemployer Plan, under Sections 4041A, 4202, 4219, 4242, or 4245
of ERISA.
8.12. USE OF PROCEEDS. The Borrower will use the proceeds of the Loans and
will obtain letters of credit solely for the purposes set forth in Section 7.15
hereof.
8.13. FURTHER ASSURANCES. The Borrower will, and will cause each of its
Subsidiaries to, cooperate with the Banks and the Agent and execute such further
instruments and documents as each of the Banks or the Agent shall reasonably
request to carry out to their satisfaction the transactions contemplated by this
Credit Agreement and the other Loan Documents.
9. CERTAIN NEGATIVE COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note, or other amount in respect
of any of the foregoing, is outstanding or any Bank has any obligation to make
any Loans or the Issuing Bank has any obligations to issue, extend or renew any
Letters of Credit:
9.1. RESTRICTIONS ON INDEBTEDNESS. The Borrower will not, and will not
permit any of its Subsidiaries to, create, incur, assume, guarantee or be or
remain liable, contingently or otherwise, with respect to any Indebtedness other
than:
(a) Indebtedness to the Banks and the Agent arising under any of the
Loan Documents;
(b) current liabilities of the Borrower or such Subsidiary incurred
in the ordinary course of business not incurred through (i) the borrowing
of money, or (ii) the obtaining of credit except for credit on an open
account basis customarily extended and in fact extended in connection with
normal purchases of goods and services;
(c) Indebtedness in respect of taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the
extent that payment therefor shall not at the time be required to be made
in accordance with the provisions of Section 8.8;
(d) Indebtedness in respect of judgments or awards (a) that (i) have
been in force for less than the applicable period for taking an appeal so
long as execution is not
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levied thereunder, or (ii) in respect of which the Borrower or such
Subsidiary shall at the time in good faith be prosecuting an appeal or
proceedings for review and in respect of which a stay of execution shall
have been obtained pending such appeal or review, and (b) the existence of
which does not constitute an Event of Default under Section 13.1;
(e) endorsements for collection, deposit or negotiation and
warranties of products or services, in each case incurred in the ordinary
course of business;
(f) Subordinated Debt or Replacement Subordinated Debt;
(g) Indebtedness secured by "purchase money security interests," as
such term is defined in the Uniform Commercial Code as adopted in the
State of California, in an aggregate principal amount at any time
outstanding not exceeding an amount equal to (i) the lesser of (A) 25% of
Borrower's Net Fixed Assets and (B) $50,000,000 minus (ii) the principal
amount of all Indebtedness of the type described in this Section 9.1(g)
then outstanding;
(h) Indebtedness not otherwise permitted by this Section 9.1
existing on the Closing Date and listed and described on Schedule 9. 1(h)
hereto;
(i) Indebtedness with respect to the mandatory redemption rights of
the holders of Preferred Stock of the Borrower, provided that such rights
do not become operative prior to the seventh anniversary of the Closing
Date of the Original Credit Agreement;
(j) Indebtedness incurred to refinance existing Indebtedness,
provided, that the principal amount thereof does not exceed the principal
amount of the Indebtedness to be refinanced outstanding immediately prior
to such refinancing and the terms and provisions of the new Indebtedness
(including subordination provisions) are not otherwise more favorable to
the holder thereof (including without limitation by stating an earlier
maturity) than those of the Indebtedness to be refinanced; and
(k) Indebtedness owing by Subsidiaries of the Borrower to the
Borrower.
9.2. RESTRICTIONS ON LIENS. The Borrower will not, and will not permit any
of its Subsidiaries to, (i) create or incur or suffer to be created or incurred
or to exist any lien, encumbrance, mortgage, pledge, charge, restriction or
other security interest of any kind upon any of its property or assets of any
character whether now owned or hereafter acquired, or upon the income or profits
therefrom; (ii) transfer any of such property or assets or the income or profits
therefrom for the purpose of subjecting the same to the payment of Indebtedness
or performance of any other obligation in priority to payment of its general
creditors; (iii) acquire, or agree or have an option to acquire, any property or
assets upon conditional sale or other title retention or purchase money security
agreement, device or arrangement; (iv) suffer to exist for a period of more than
thirty (30) days after the same shall have been incurred any Indebtedness or
claim or demand against it that if unpaid might by law or upon its bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors; or (v) sell, assign, pledge or otherwise transfer any accounts,
contract rights, general intangibles, chattel paper or
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instruments, with or without recourse; provided that the Borrower and any
Subsidiary of the Borrower may create or incur or suffer to be created or
incurred or to exist:
(a) liens in favor of the Borrower on all or part of the assets of
Subsidiaries of the Borrower securing Indebtedness owing by Subsidiaries
of the Borrower to the Borrower;
(b) liens to secure taxes, assessments and other government charges
in respect of obligations not overdue or liens to secure claims for labor,
material or supplies in respect of obligations not overdue;
(c) deposits or pledges made in connection with, or to secure
payment of' workmen's compensation, unemployment insurance, old age
pensions or other social security obligations;
(d) liens in respect of judgments or awards, the indebtedness with
respect to which is permitted by Section 9.1(d);
(e) liens of carriers, warehousemen, mechanics and materialmen, and
other like liens on properties in existence less than 120 days from the
date of creation thereof in respect of obligations not overdue;
(f) encumbrances on Real Estate consisting of easements, rights of
way, zoning restrictions, restrictions on the use thereof and defects and
irregularities in the title thereto, landlord's or lessor's liens under
leases to which the Borrower or a Subsidiary of the Borrower is a party,
and other minor liens or encumbrances, none of which in the reasonable
opinion of the Borrower interferes materially with the use of the property
affected in the ordinary conduct of the business of the Borrower and its
Subsidiaries, which defects do not individually or in the aggregate have a
materially adverse effect on the business of the Borrower individually or
of the Borrower and its Subsidiaries on a consolidated basis;
(g) liens existing on the date hereof and listed on Schedule 9.2
hereto;
(h) purchase money security interests in or purchase money mortgages
on real or personal property acquired after the date hereof to secure
purchase money Indebtedness of the type and amount permitted by Section
9.1(g), incurred in connection with the acquisition of such property,
which security interests or mortgages cover only the real or personal
property so acquired;
(i) the interest of lessors under leases of real or personal
property made by the Borrower or any of its Subsidiaries in the ordinary
course of business and listed on Schedule 9.2 hereto;
(j) leases, subleases, licenses, and sublicenses granted to third
parties the Indebtedness in respect of which is permitted under Section
9.1(h) and the granting of which
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does not result in a material adverse effect on the business or financial
condition of the Borrower;
(m) liens in favor of customs and revenue authorities which secure
payment of customs in connection with the importation of goods;
(n) liens which constitute rights of set-off of a customary nature
or bankers' liens on amounts on deposit, whether arising by contract or by
operation of law, in connection with arrangements entered into with
depository institutions in the ordinary course of business not to exceed
at any time $25,000 in the aggregate; and
(o) replacement liens for any lien referred to above securing
Indebtedness refinanced pursuant to Section 9.1(j), provided that the
principal amount of the Indebtedness or other liability secured thereby is
not increased as a result of such refinancing, that the terms and
provisions of such refinancing are not otherwise more favorable to the
holder thereof than those of the existing Indebtedness to be refinanced
and lien to be replaced, and that such refinancing is limited to the
property originally encumbered thereby.
9.3. RESTRICTIONS ON INVESTMENTS. The Borrower will not, and will not
permit any of its Subsidiaries to, make or permit to exist or to remain
outstanding any Investment except Investments in:
(a) marketable direct or guaranteed obligations of the United States
of America that mature within one (1) year from the date of purchase by
the Borrower;
(b) demand deposits, certificates of deposit, bankers acceptances
and time deposits of United States banks having total assets in excess of
$ 1,000,000,000;
(c) securities commonly known as "commercial paper" issued by a
corporation organized and existing under the laws of the United States of
America or any State thereof that at the time of purchase have been rated
and the ratings for which are not less than "P 1" if rated by Moody's
Investors Services, Inc., and not less than "A l" if rated by Standard and
Poor's Ratings Group, a division of McGraw Hill, Inc.;
(d) Investments not otherwise permitted by this Section 9.3 existing
on the date hereof and listed on Schedule 9.3 hereto;
(e) Investments by the Borrower in Subsidiaries of the Borrower
created after the Closing Date, provided, however, that (i) such
Investments with respect to U.S. Subsidiaries shall not at any time
exceed, in the aggregate, an amount equal to five percent (5%) of
Borrower's total assets, determined in accordance with generally accepted
accounting principles, as at such time, (ii) such Investments with respect
to non-U.S. Subsidiaries shall not exceed $500,000 in the aggregate, and
(iii) at any time when Borrower's aggregate Investments in Subsidiaries
equal or exceed Ten Million Dollars ($10,000,000), Agent may request that
some or all of Borrower's Subsidiaries provide guaranties of the
Obligations, and neither Borrower nor any of its Subsidiaries will
unreasonably deny any such request;
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(f) Investments consisting of promissory notes received as proceeds
of asset dispositions permitted by Section 9.5.2;
(g) Investments consisting of loans and advances to employees for
moving, entertainment, travel and other similar expenses in the ordinary
course of business; and
(h) other Investments not otherwise permitted by this Section 9.3
but made in accordance with an investment policy approved by Borrower's
Board of Directors and determined by the Agent to be reasonably
satisfactory prior to any Investment hereunder being made.
9.4. RESTRICTED PAYMENTS. The Borrower will not make any Restricted
Payments, other than:
(a) payments in respect of the Subordinated Debt or Replacement
Subordinated Debt to the extent permitted by Section 9.8 hereof;
(b) if no Default or Event of Default has occurred and is continuing or
would result therefrom, repurchase by the Borrower of its common stock from
employees of the Borrower, provided the aggregate amount of all such repurchases
from the Closing Date to the Maturity Date does not exceed $500,000;
(c) non-cash payments to the holders of Preferred Stock of the Borrower;
and
(d) Investments permitted under Section 9.3(g).
9.5. MERGER; CONSOLIDATION AND DISPOSITION OF ASSETS.
9.5.1. MERGERS AND ACQUISITIONS. The Borrower will not, and will not
permit any of its Subsidiaries to, become a party to any merger or
consolidation, or agree to or effect any asset acquisition or stock
acquisition (other than the acquisition of assets in the ordinary course
of business consistent with past practices) except the merger or
consolidation of one or more of the Subsidiaries of the Borrower with and
into the Borrower, or the merger or consolidation of two or more
Subsidiaries of the Borrower.
9.5.2. DISPOSITION OF ASSETS. Other than the disposition of assets
in the ordinary course of business, the Borrower will not, and will not
permit any of its Subsidiaries to, become a party to or agree to or effect
any disposition of assets or properties exceeding ten percent (10%) of its
total assets, such ten percent (10%) being calculated on a cumulative
basis beginning on the Closing Date.
9.6. NO SUBSIDIARIES, ETC. The Borrower will not create or acquire any
Subsidiaries nor acquire any interest in any joint venture or partnership, other
than Subsidiaries which engage in substantially the same business as the
Borrower.
9.7. SALE AND LEASEBACK. The Borrower will not, and will not permit any of
its Subsidiaries to, enter into any arrangement, directly or indirectly, whereby
the Borrower or any Subsidiary of the Borrower shall sell or transfer any
property owned by it in order then or
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thereafter to lease such property or lease other property that the Borrower or
any Subsidiary of the Borrower intends to use for substantially the same purpose
as the property being sold or transferred.
9.8. SUBORDINATED DEBT. Except in connection with the issuance of
Replacement Subordinated Debt, the Borrower will not, and will not permit any of
its Subsidiaries to, amend, supplement or otherwise modify the terms of any of
the Subordinated Debt or, after issued, the Replacement Subordinated Debt. The
Borrower will not, and will not permit any of its Subsidiaries to, prepay,
redeem or repurchase any of the Subordinated Debt (except in connection with the
issuance of Replacement Subordinated Debt) or the Replacement Subordinated Debt.
The Borrower will not make any principal payments on any Subordinated Debt or
Replacement Subordinated Debt and will not make any interest payments on any
Subordinated Debt or Replacement Subordinated Debt other than regularly
scheduled interest payments permitted to be paid under the Subordinated Debt
Documents or the documents executed in connection with any Replacement
Subordinated Debt, as the case may be.
9.9. EMPLOYEE BENEFIT PLANS. Neither the Borrower nor any ERISA Affiliate
will
(a) engage in any "prohibited transaction" within the meaning
of Section 406 of ERISA or Section 4975 of the Code which could
result in a material liability for the Borrower or any of its
Subsidiaries; or
(b) permit any Guaranteed Pension Plan to incur an
"accumulated funding deficiency", as such term is defined in Section
302 of ERISA, whether or not such deficiency is or may be waived; or
(c) fail to contribute to any Guaranteed Pension Plan to an
extent which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on
the assets of the Borrower or any of its Subsidiaries pursuant to
Section 302(f) or Section 4068 of ERISA; or
(d) permit or take any action which would result in the
aggregate benefit liabilities (with the meaning of Section 4001 of
ERISA) of all Guaranteed Pension Plans exceeding the value of the
aggregate assets of such Plans, disregarding for this purpose the
benefit liabilities and assets of any such Plan with assets in
excess of benefit liabilities, by more than the amount set forth in
Section 7.14.3.
9.10. CHANGE OF FISCAL YEAR. The Borrower will not, and will not permit
its Subsidiaries to, change the date of the end of their respective fiscal years
from that set forth in Section 7.18 hereof.
9.11. CAPITALIZATION. The Borrower will not issue any capital stock having
mandatory redemption rights or redemption at the option of the holder, sinking
fund payments, guaranteed return or exchange ability or conversion into debt
instruments of the Borrower or any other "debt-like" features other than the
mandatory rights of redemption of the Preferred Stock of the
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Borrower following the seventh anniversary of the Closing Date of the Original
Credit Agreement.
9.12. NO MATERIAL CHANGES, ETC. The Borrower shall not permit, at any time
after the Closing Date, any materially adverse change in the financial condition
or business of the Borrower and its Subsidiaries, taken as a whole, as of the
Closing Date (after giving effect to the transactions contemplated in this
Credit Agreement), other than changes in the ordinary course of business that
have not had any materially adverse effect either individually or in the
aggregate on the business or financial condition of the Borrower and its
Subsidiaries, taken as a whole.
10. FINANCIAL COVENANTS OF THE BORROWER.
The Borrower covenants and agrees that, so long as any Loan, Unpaid
Reimbursement Obligation, Letter of Credit or Note, or other amount in respect
of any of the foregoing, is outstanding or any Bank has any obligation to make
any Loans or the Issuing Bank has any obligation to issue, extend or renew any
Letters of Credit:
10.1. TOTAL LIABILITIES TO EBITDA. The Borrower will not permit the ratio
of (a) an amount equal to (i) Total Liabilities minus (ii) the Subordinated Debt
or the Replacement Subordinated Debt, as the case may be, as at the end of any
fiscal quarter to (b) EBITDA for such fiscal quarter and the immediately
preceding three fiscal quarters (treated as a single accounting period) to
exceed 1.0:1.0.
10.2. INTEREST COVERAGE. The Borrower will not, for any fiscal quarter,
permit the ratio of (i) EBIT for such fiscal quarter to (ii) Consolidated Total
Interest Expense for such fiscal quarter to be less than 5.0:1.0.
10.3. CURRENT RATIO. The Borrower will not permit its Current Ratio to be
less than 1.25 as of the end of any fiscal quarter.
10.4 PROFITABLE OPERATIONS.
(a) The Borrower will not permit EBIT or Consolidated Net Income, for any
two consecutive fiscal quarters of the Borrower, to be less than $1.00.
(b) The Borrower will not permit EBIT or Consolidated Net Income for any
fiscal quarter of the Borrower to be less than zero by an amount which exceeds
five percent (5%) of the Borrower's Tangible Net Worth.
10.5. OPERATING LEASES. The Borrower will not, and will not permit any of
its Subsidiaries at any time to create, incur, assume, guarantee or be or remain
liable, contingently or otherwise, with respect to operating leases of the
Borrower having annual payments in an aggregate amount in excess of $2,500,000.
11. CLOSING CONDITIONS.
The obligations of the Banks to extend credit hereunder shall be subject
to the satisfaction of the following conditions precedent:
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11.1. LOAN DOCUMENTS, ETC. Each of the Loan Documents shall have been duly
executed and delivered by the respective parties thereto, shall be in full force
and effect and shall be in form and substance satisfactory to each of the Banks
and the Agent. Each Bank and the Agent shall have received a fully executed copy
of each such document.
11.2. CERTIFIED COPIES OF CHARTER DOCUMENTS. Each of the Banks shall have
received from the Borrower a copy, certified by a duly authorized officer of the
Borrower to be true and complete on the Closing Date, of each of (i) its charter
or other incorporation documents as in effect on such date of certification, and
(ii) its by-laws as in effect on such date.
11.3. CORPORATE ACTION. All corporate action necessary for the valid
execution, delivery and performance by the Borrower and any of its Subsidiaries
of this Credit Agreement and the other Loan Documents to which it is or is to
become a party shall have been duly and effectively taken, and evidence thereof
satisfactory to the Banks shall have been provided to each of the Banks.
11.4. INCUMBENCY CERTIFICATE. Each of the Banks shall have received from
the Borrower an incumbency certificate, dated as of the Closing Date, signed by
a duly authorized officer of the Borrower and giving the name and bearing a
specimen signature of each individual who shall be authorized: (i) to sign, in
the name and on behalf of the Borrower each of the Loan Documents to which the
Borrower is or is to become a party; (ii) to make Loan Requests and Conversion
Requests and to apply for Letters of Credit; and (iii) to give notices and to
take other action on its behalf under this Credit Agreement and the other Loan
Documents.
11.5. OPINION OF COUNSEL. Each of the Banks, the Agent and the Bank Agents
shall have received a favorable legal opinion addressed to the Banks, the Agent
and the Bank Agents, dated as of the Closing Date, in form and substance
satisfactory to the Banks, the Agent and the Bank Agents.
11.6 INITIAL LEVERAGE RATIO CALCULATION. The Agent shall have received
Borrower's certificate as to the Leverage Ratio as of June 30, 1996 (the
"Initial Leverage Ratio Calculation").
12. CONDITIONS TO ALL BORROWINGS.
The obligations of the Banks to make any Loan, including Revolving Credit
Loans and Swingline Loans, and of the Issuing Bank to issue, extend or renew any
Letter of Credit, in each case whether on or after the Closing Date, shall also
be subject to the satisfaction of the following conditions precedent:
12.1. REPRESENTATIONS TRUE; NO EVENT OF DEFAULT. Each of the
representations and warranties of any of the Borrower and its Subsidiaries
contained in this Credit Agreement, the other Loan Documents or in any document
or instrument delivered pursuant to or in connection with this Credit Agreement
shall be true as of the date as of which they were made and shall also be true
at and as of the time of the making of such Loan or the issuance, extension or
renewal of such Letter of Credit, with the same effect as if made at and as of
that time (except to the extent of changes resulting from transactions
contemplated or permitted by this Credit Agreement and the other Loan Documents
and changes occurring in the ordinary course of business that singly
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or in the aggregate are not materially adverse, and to the extent that such
representations and warranties relate expressly to an earlier date) and no
Default or Event of Default shall have occurred and be continuing. The Agent
shall have received a certificate of the Borrower signed by an authorized
officer of the Borrower to such effect.
12.2. NO LEGAL IMPEDIMENT. No change shall have occurred in any law or
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Loan or to
participate in the issuance, extension or renewal of such Letter of Credit or in
the reasonable opinion of the Issuing Bank would make it illegal for the Issuing
Bank to issue, extend or renew such Letter of Credit.
12.3. GOVERNMENTAL REGULATION. Each Bank shall have received such
statements, in substance and form reasonably satisfactory to such Bank as such
Bank, shall require for the purpose of compliance with any applicable
regulations of the Comptroller of the Currency or the Board of Governors of the
Federal Reserve System.
12.4. PROCEEDINGS AND DOCUMENTS. All proceedings in connection with the
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agent and the Agent's Special Counsel, and the
Banks, the Agent and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following events
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Loans or any
Reimbursement Obligation when the same shall become due and payable,
whether at the stated date of maturity or any accelerated date of maturity
or at any other date fixed for payment thereof;
(b) the Borrower shall fail to pay any interest on the Loans, the
Commitment Fee, any Letter of Credit Fee, the Agent's fee, or other sums
due hereunder or under any of the other Loan Documents, when the same
shall become due and payable, whether at the stated date of maturity or
any accelerated date of maturity or at any other date fixed for payment
thereof;
(c) the Borrower shall fail to comply with any of its covenants
contained in Sections 8.1, 8.4, 8.5, the first sentence of 8.6, 8.7, 8.8,
8.10, 8.12, 9 or 10;
(d) the Borrower or any of its Subsidiaries shall fail to perform
any term, covenant or agreement contained herein or in any of the other
Loan Documents (other than those specified elsewhere in this Section 13.1)
for fifteen (15) days after written notice of such failure has been given
to the Borrower by the Agent or any Bank;
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(e) any representation or warranty of the Borrower or any of its
Subsidiaries in this Credit Agreement or any of the other Loan Documents
or in any other document or instrument delivered pursuant to or in
connection with this Credit Agreement shall prove to have been false in
any material respect upon the date when made or deemed to have been made
or repeated;
(f) the Borrower or any of its Subsidiaries shall fail to pay at
maturity, or within any applicable period of grace, any obligation for
borrowed money or credit received or in respect of any Capitalized Leases
in excess of $2,000,000 in aggregate principal amount, or fail to observe
or perform any material term, covenant or agreement contained in any
agreement by which it is bound, evidencing or securing borrowed money or
credit received or in respect of any Capitalized Leases in excess of
$2,000,000 in aggregate principal amount for such period of time as would
permit (assuming the giving of appropriate notice if required) the holder
or holders thereof or of any obligations issued thereunder to accelerate
the maturity thereof;
(g) the Borrower or any of its Subsidiaries shall make an assignment
for the benefit of creditors, or admit in writing its inability to pay or
generally fail to pay its debts as they mature or become due, or shall
petition or apply for the appointment of a trustee or other custodian,
liquidator or receiver of the Borrower or any of its Subsidiaries or of
any substantial part of the assets of the Borrower or any of its
Subsidiaries or shall commence any case or other proceeding relating to
the Borrower or any of its Subsidiaries under any bankruptcy,
reorganization, arrangement, insolvency, readjustment of debt, dissolution
or liquidation or similar law of any jurisdiction, now or hereafter in
effect, or shall take any action to authorize or in furtherance of any of
the foregoing, or if any such petition or application shall be filed or
any such case or other proceeding shall be commenced against the Borrower
or any of its Subsidiaries and the Borrower or any of its Subsidiaries
shall indicate its approval thereof', consent thereto or acquiescence
therein or such petition or application shall not have been dismissed
within forty-five (45) days following the filing thereof;
(h) a decree or order is entered appointing any such trustee,
custodian, liquidator or receiver or adjudicating the Borrower or any of
its Subsidiaries bankrupt or insolvent, or approving a petition in any
such case or other proceeding, or a decree or order for relief is entered
in respect of the Borrower or any Subsidiary of the Borrower in an
involuntary case under federal bankruptcy laws as now or hereafter
constituted;
(i) there shall remain in force, undischarged, unsatisfied and
unstayed, for more than thirty (30) days, whether or not consecutive, any
final judgment against the Borrower or any of its Subsidiaries that, with
other outstanding final judgments, undischarged, against the Borrower or
any of its Subsidiaries exceeds in the aggregate $2,000,000 and the
Borrower shall have failed to provide evidence satisfactory to the Agent
and the Banks that such judgment or award is fully covered by independent
third-party insurance;
(j) the holders of all or any part of the Subordinated Debt or
Replacement Subordinated Debt shall accelerate the maturity of all or any
part of such Indebtedness or
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the Subordinated Debt shall be redeemed or repurchased in whole or in part
(other than with proceeds from Replacement Subordinated Debt) or the
Replacement Subordinated Debt shall be redeemed or repurchased in whole or
in part;
(k) if any of the Loan Documents or any material provision thereof
shall be canceled, terminated, revoked or rescinded, otherwise than in
accordance with the terms thereof or with the express prior written
agreement, consent or approval of the Banks, or any action at law, suit or
in equity or other legal proceeding to cancel, revoke or rescind any of
the Loan Documents or any material provision thereof shall be commenced by
or on behalf of the Borrower [or any of its Subsidiaries party thereto] or
any of their respective stockholders, or any court or any other
governmental or regulatory authority or agency of competent jurisdiction
shall make a determination that, or issue a judgment, order, decree or
ruling to the effect that, any one or more of the Loan Documents or any
material provision thereof is illegal, invalid or unenforceable in
accordance with the terms thereof;
(l) with respect to any Guaranteed Pension Plan, an ERISA Reportable
Event shall have occurred and the Majority Banks shall have reasonably
determined that such event reasonably could be expected to result in
liability of the Borrower or any of its Subsidiaries to the PBGC or such
Guaranteed Pension Plan in an aggregate amount exceeding $2,000,000 and
such event in the circumstances occurring reasonably could constitute
grounds for the termination of such Guaranteed Pension Plan by the PBGC or
for the appointment by the appropriate United States District Court of a
trustee to administer such Guaranteed Pension Plan; or a trustee shall
have been appointed by the United States District Court to administer such
Plan; or the PBGC shall have instituted proceedings to terminate such
Guaranteed Pension Plan;
(m) the Borrower or any of its Subsidiaries shall be enjoined,
restrained or in any way prevented by the order of any court or any
administrative or regulatory agency from conducting any material part of
its business and such order shall continue in effect for more than thirty
(30) days;
(n) there shall occur any strike, lockout, labor dispute, embargo,
condemnation, act of God or public enemy, or other casualty, which in any
such case causes, for more than fifteen (15) consecutive days, the
cessation or substantial curtailment of revenue producing activities of
the Borrower and its Subsidiaries on a consolidated basis if such event or
circumstance is not covered by business interruption insurance and would
have a material adverse effect on the business or financial condition of
the Borrower and its Subsidiaries, taken as a whole;
(o) there shall occur the loss, suspension or revocation of, or
failure to renew, any license, permit or consent issued by any government
or government agency or authority now held or hereafter acquired by the
Borrower or any of its Subsidiaries if such loss, suspension, revocation
or failure to renew would have a material adverse effect on the business
or financial condition of the Borrower and its Subsidiaries, taken as a
whole; or
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(p) any Person or group of affiliated Persons, other than a group
comprised of some or all of Summit Ventures II, L.P., Summit Ventures IV,
L.P., Summit Ventures II, L.P. and Summit Subordinated Debt Fund, L.P.,
including for this purpose their affiliates and partners, and current
management of the Borrower and employee stockholders of the Borrower shall
acquire in excess of fifty percent (50%) of the outstanding shares of
Voting Stock of the Borrower;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all Obligations to be, and they shall thereupon forthwith
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby expressly waived by the
Borrower; provided that in the event of any Event of Default specified in
Section 13.1(g), 13.1(h) or 13.1(j), all such amounts shall become immediately
due and payable automatically and without any requirement of notice from the
Agent or any Bank.
13.2. TERMINATION OF COMMITMENTS. If any one or more of the Events of
Default specified in Section 13.1(g), 13.1(h) or 13.1(j) shall occur, any unused
portion of the Commitments shall forthwith automatically terminate and each of
the Banks shall be relieved of all further obligations to make Loans to the
Borrower and the Issuing Bank shall be relieved of all further obligations to
issue, extend or renew Letters of Credit. If any other Event of Default shall
have occurred and be continuing, or if on any Drawdown Date or other date for
issuing, extending or renewing any Letter of Credit the conditions precedent to
the making of the Loans to be made on such Drawdown Date or (as the case may be)
to issuing, extending or renewing such Letter of Credit on such other date are
not satisfied, the Agent may and, upon the request of the Majority Banks, shall,
by notice to the Borrower, terminate the unused portion of the Total Commitment
hereunder, and upon such notice being given such unused portion of the Total
Commitment hereunder shall terminate immediately and each of the Banks shall be
relieved of all further obligations to make Loans and the Issuing Bank shall be
relieved of all further obligations to issue, extend or renew Letters of Credit.
No termination of the Total Commitment hereunder shall relieve the Borrower or
any of its Subsidiaries of any of the Obligations.
13.3. REMEDIES. In case any one or more Events of Default shall have
occurred and be continuing, and whether or not the Banks shall have accelerated
the maturity of the Loans pursuant to Section 13.1, each Bank, if owed any
amount with respect to the Loans or the Reimbursement Obligations, may, with the
prior written consent of the Agent and the Majority Banks (including the Agent
in the calculation of "Majority Banks"), but not otherwise, proceed to protect
and enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the ex parte
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agent or the holder of any Note or purchaser of any Letter of Credit
Participation is intended to be exclusive of any other remedy and each and every
remedy shall be cumulative and shall be in addition to every other remedy
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given hereunder or now or hereafter existing at law or in equity or by statute
or any other provision of law.
14. SETOFF.
During the continuance of any Event of Default, any deposits or other sums
credited by or due from any of the Banks to the Borrower and any securities or
other property of the Borrower in the possession of such Bank may be applied to
or set off by such Bank against the payment of Obligations and any and all other
liabilities, direct or indirect, of the Borrower to such Bank which are then due
and payable. Each of the Banks agrees with each other Bank that (i) if an amount
to be set off is to be applied to Indebtedness of the Borrower to such Bank,
other than Indebtedness evidenced by the Notes held by such Bank or constituting
Reimbursement Obligations owed to such Bank, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness evidenced by all such
Notes held by such Bank or constituting Reimbursement Obligations owed to such
Bank, and (ii) if such Bank shall receive from the Borrower, whether by
voluntary payment, exercise of the right of setoff, counterclaim, cross action,
enforcement of the claim evidenced by the Notes held by, or constituting
Reimbursement Obligations owed to, such Bank by proceedings against the Borrower
at law or in equity or by proof thereof in bankruptcy, reorganization,
liquidation, receivership or similar proceedings, or otherwise, and shall retain
and apply to the payment of the Note or Notes held by, or Reimbursement
Obligations owed to, such Bank any amount in excess of its ratable portion of
the payments received by all of the Banks with respect to the Notes held by, and
Reimbursement Obligations owed to, all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with respect to such excess,
either by way of distribution, pro tanto assignment of claims, subrogation or
otherwise as shall result in each Bank receiving in respect of the Notes held by
it or Reimbursement Obligations owed it, its proportionate payment as
contemplated by this Credit Agreement; provided that if all or any part of such
excess payment is thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
15. THE AGENT.
15.1. AUTHORIZATION.
(a) Each of the Bank Agents and the Agent is authorized to take such
action on behalf of each of the Banks and to exercise all such powers as
are hereunder and under any of the other Loan Documents and any related
documents delegated to each of the Bank Agents and the Agent, together
with such powers as are reasonably incident thereto, provided that no
duties or responsibilities not expressly assumed herein or therein shall
be implied to have been assumed by either of the Bank Agents.
(b) The relationship between each of the Bank Agents, the Agent and
each of the Banks is that of an independent contractor. The use of the
terms "Bank Agents" and "Agent" is for convenience only and is used to
describe, as a form of convention, the independent contractual
relationship between each of the Bank Agents, the Agent and each of the
Banks. Nothing contained in this Credit Agreement nor the other Loan
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Documents shall be construed to create an agency, trust or other fiduciary
relationship between each of the Bank Agents, the Agent and any of the
Banks.
15.2. EMPLOYEES AND AGENTS. Each of the Bank Agents and the Agent may
exercise its powers and execute its duties by or through employees or agents and
shall be entitled to take, and to rely on, advice of counsel concerning all
matters pertaining to its rights and duties under this Credit Agreement and the
other Loan Documents. Each of the Bank Agents and the Agent may utilize the
services of such Persons as such Bank Agent or Agent in its sole discretion may
reasonably determine, and all reasonable fees and expenses of any such Persons
shall be paid by the Borrower.
15.3. NO LIABILITY. None of the Bank Agents, the Agent nor any of their
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof' shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that each of the Bank
Agents and the Agent or such other Person, as the case may be, may be liable for
losses exclusively due to its willful misconduct or gross negligence.
15.4. NO REPRESENTATIONS. None of the Bank Agents or the Agent shall be
responsible for the execution or validity or enforceability of this Credit
Agreement, the Notes, the Letters of Credit, any of the other Loan Documents or
for the validity, enforceability or collectibility of any such amounts owing
with respect to the Notes, or for any recitals or statements, warranties or
representations made herein or in any of the other Loan Documents or in any
certificate or instrument hereafter furnished to it by or on behalf of the
Borrower or any of its Subsidiaries, or be bound to ascertain or inquire as to
the performance or observance of any of the terms, conditions, covenants or
agreements herein or to inspect any of the properties, books or records of the
Borrower or any of its Subsidiaries. None of the Bank Agents nor the Agent shall
be bound to ascertain whether any notice, consent, waiver or request delivered
to it by the Borrower or any holder of any of the Notes shall have been duly
authorized or is true, accurate and complete. None of the Bank Agents nor the
Agent has made nor does any of them now make any representations or warranties,
express or implied, nor does any of them assume any liability to the Banks, with
respect to the credit worthiness or financial conditions of the Borrower or any
of its Subsidiaries. Each Bank acknowledges that it has, independently and
without reliance upon any of the Bank Agents, the Agent or any other Bank, and
based upon such information and documents as it has deemed appropriate, made its
own credit analysis and decision to enter into this Credit Agreement and to
accept Borrower's Note and, in the case of the Issuing Bank, issue, renew and
extend Letters of Credit, and that it will continue to do so in connection with
making each Loan and issuance, renewal and extension of each Letter of Credit,
as applicable.
15.5. PAYMENTS.
15.5.1. PAYMENTS TO AGENT. A payment by the Borrower to the Agent
hereunder or any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees promptly to
distribute to each Bank such Bank's pro rata share of payments received by
the Agent for the account of the
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Banks except as otherwise expressly provided herein or in any of the other
Loan Documents.
15.5.2. DISTRIBUTION BY AGENT. If in the opinion of the Agent the
distribution of any amount received by it in such capacity hereunder,
under the Notes or under any of the other Loan Documents might result in
the incurrence by it of any liability, it may refrain from making such
distribution until its right to make such distribution shall have been
adjudicated by a court of competent jurisdiction. If a court of competent
jurisdiction shall adjudge that any amount received from the Borrower and
distributed by the Agent is to be repaid, each Person to whom any such
distribution shall have been made shall either repay to the Agent its
proportionate share of the amount so adjudged to be repaid or shall pay
over the same in such manner and to such Persons as shall be determined by
such court.
15.5.3. DELINQUENT BANKS. Notwithstanding anything to the contrary
contained in this Credit Agreement or any of the other Loan Documents, any
Bank that fails (i) to make available to the Agent its pro rata share of
any Loan or to purchase any Letter of Credit Participation or (ii) to
comply with the provisions of Section 14 with respect to making
dispositions and arrangements with the other Banks, where such Bank's
share of any payment received, whether by setoff or otherwise, is in
excess of its pro rata share of such payments due and payable to all of
the Banks, in each case as, when and to the full extent required by the
provisions of this Credit Agreement, shall be deemed delinquent (a
"Delinquent Bank") and shall be deemed a Delinquent Bank until such time
as such delinquency is remedied. A Delinquent Bank shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on
account of outstanding Loans, Unpaid Reimbursement Obligations, interest,
fees or otherwise, to the remaining nondelinquent Banks for application
to, and reduction of, their respective pro rata shares of all outstanding
Loans and Unpaid Reimbursement Obligations. The Delinquent Bank hereby
authorizes the Agent to distribute such payments to the nondelinquent
Banks in proportion to their respective pro rata shares of all outstanding
Loans and Unpaid Reimbursement Obligations. A Delinquent Bank shall be
deemed to have remedied in full a delinquency when and if', as a result of
application of the assigned payments to all outstanding Loans and Unpaid
Reimbursement Obligations of the nondelinquent Banks, the Banks'
respective pro rata shares of all outstanding Loans and Unpaid
Reimbursement Obligations have returned to those in effect immediately
prior to such delinquency and without giving effect to the nonpayment
causing such delinquency. Until such time as its delinquency is remedied,
a Delinquent Bank shall have no right to vote with respect to any matters
under or in respect of this Credit Agreement and shall not be entitled to
receive its portion of any Commitment Fee paid in accordance with Section
2.2 of this Credit Agreement.
15.6. HOLDERS OF NOTES. The Agent may deem and treat the holder of any
Note or the purchaser of any Letter of Credit Participation as the absolute
owner or purchaser thereof for all purposes until it shall have been furnished
in writing with a different name by such payee or by a subsequent holder,
assignee or transferee.
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15.7. INDEMNITY. The Banks ratably (computed by reference to each Bank's
Total Percentage) agree hereby to indemnify and hold harmless the Bank Agents
and the Agent from and against any and all claims, actions and suits (whether
groundless or otherwise), losses, damages, costs, expenses (including any
expenses for which the Agent has not been reimbursed by the Borrower as required
by Section 16), and liabilities of every nature and character arising out of or
related to this Credit Agreement, the Notes, or any of the other Loan Documents
or the transactions contemplated or evidenced hereby or thereby, or the Bank
Agents' or the Agent's actions taken hereunder or thereunder, except to the
extent that any of the same shall be directly and exclusively caused by the Bank
Agents' or the Agent's willful misconduct or gross negligence.
15.8. AGENT AS BANK. In its individual capacity, FNBB shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment, the Swingline Commitment and the Loans made by it, and as the holder
of any of the Notes and as the purchaser of any Letter of Credit Participations,
as it would have were it not also the Agent and a Co-Syndication Agent. In its
individual capacity, Paribas shall have the same obligations and the same
rights, powers and privileges in respect to its Commitment and the Loans made by
it, and as the holder of any of the Notes and as the purchaser of any Letter of
Credit Participations, as it would have were it not also a Co-Syndication Agent.
Each of the Banks acknowledges that each of the Bank Agents holds warrants for
the capital stock of the Borrower and is the holder of a Subordinated Note.
15.9. RESIGNATION. Each Bank Agent may resign at any time by giving sixty
(60) days' prior written notice thereof to the Banks and the Borrower. Upon any
such resignation, the Majority Banks shall have the right to appoint a successor
Bank Agent in such capacity. Unless a Default or Event of Default shall have
occurred and be continuing, such successor Bank Agent shall be reasonably
acceptable to the Borrower; if a Default or Event of Default shall have occurred
and be continuing, the Borrower shall not be entitled to review the identity of
any proposed successor Bank Agent. If no successor Bank Agent shall have been so
appointed by the Majority Banks and other Bank Agents and shall have accepted
such appointment within thirty (30) days after the retiring Bank Agent's giving
of notice of resignation, then the retiring Bank Agent may, on behalf of the
Banks, appoint a successor Bank Agent in such capacity, which shall be a
financial institution having a rating of not less than A or its equivalent by
Standard & Poor's Ratings Group, a division of McGraw-Hill, Inc. Upon the
acceptance of any appointment as Bank Agent hereunder by a successor Bank Agent,
such successor Bank Agent shall thereupon succeed to and become vested with all
the rights, powers, privileges and duties of the retiring Bank Agent, and the
retiring Bank Agent shall be discharged from its duties and obligations
hereunder. After any retiring Bank Agent's resignation, the provisions of this
Credit Agreement and the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Bank Agent.
15.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Bank hereby
agrees that, upon an officer of such Bank active in respect of the Borrower's
account learning of the existence of a Default or an Event of Default, it shall
promptly notify the Agent thereof. The Agent hereby agrees that upon receipt of
any notice under this Section 15.10 it shall promptly notify the other Banks of
the existence of such Default or Event of Default.
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15.11. DUTIES IN THE CASE OF ENFORCEMENT. In case one or more Events of
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Agent shall, if (i) so requested by
the Majority Banks and (ii) the Banks have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent may
reasonably request, proceed to exercise all or any such other legal and
equitable and other rights or remedies as the Bank may have in respect of such
Event of Default. The Majority Banks may direct the Agent in writing as to the
method and the extent of any such enforcement, the Banks hereby ratably
(computed by reference to each Bank's Total Percentage) agreeing to indemnify
and hold the Agent harmless from all liabilities incurred in respect of all
actions taken or omitted in accordance with such directions, provided that the
Agent need not comply with any such direction to the extent that the Agent
reasonably believes the Agent's compliance with such direction to be unlawful or
inadvisable.
16. EXPENSES.
The Borrower agrees to pay (i) the reasonable costs of producing and
reproducing this Credit Agreement, the other Loan Documents and the other
agreements and instruments mentioned herein, (ii) any taxes (including any
interest and penalties in respect thereto) payable by any of the Bank Agents or
any of the Banks (other than taxes based upon any Bank Agent's or any Bank's net
income, subject to the limitations set forth in Section 6.2.3) on or with
respect to the transactions contemplated by this Credit Agreement (the Borrower
hereby agreeing to indemnify each Bank Agent and each Bank with respect
thereto), (iii) the reasonable fees, expenses and disbursements of the Bank
Agent's Special Counsel incurred in connection with the preparation,
administration or interpretation of the Loan Documents and other instruments
mentioned herein, each closing hereunder, amendments, modifications, approvals,
consents or waivers hereto or hereunder, and the syndication hereof (including
those incurred in connection with syndication occurring after the Closing Date),
(iv) the reasonable fees, expenses and disbursements of the Bank Agents incurred
by the Bank Agents in connection with the preparation, administration or
interpretation of the Loan Documents and other instruments mentioned herein,
including all surveyor, engineering and appraisal charges and commercial finance
examination fees, (v) the reasonable fees, expenses and disbursements incurred
by the each of the Banks in connection with the syndication of its Commitment
hereunder, and (vi) all reasonable out-of-pocket expenses (including, without
limitation, reasonable attorneys' fees and costs, which attorneys may be
employees of any Bank or any of the Bank Agents, and reasonable consulting,
accounting, appraisal, investment banking and similar professional fees and
charges) incurred by any Bank or any of the Bank Agents in connection with (A)
the enforcement of or preservation of rights under any of the Loan Documents
against the Borrower or any of its Subsidiaries or the administration thereof
after the occurrence of a Default or Event of Default and (B) any litigation,
proceeding or dispute, whether arising hereunder or otherwise, in any way
related to any Bank's or any of the Bank Agents' relationship with the Borrower
or any of its Subsidiaries. The covenants of this Section 16 shall survive
payment or satisfaction of all other Obligations.
17. INDEMNIFICATION.
The Borrower agrees to indemnify and hold harmless the Bank Agents and the
Banks from and against any and all claims, actions and suits, whether groundless
or otherwise, and from
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and against any and all liabilities, losses, damages and expenses of every
nature and character arising out of this Credit Agreement or any of the other
Loan Documents or the transactions contemplated hereby including, without
limitation, (i) any actual or proposed use by the Borrower or any of its
Subsidiaries of the proceeds of any of the Loans or Letters of Credit, (ii) the
Borrower or any of its Subsidiaries entering into or performing this Credit
Agreement or any of the other Loan Documents or (iii) with respect to the
Borrower and its Subsidiaries and their respective properties and assets, the
violation of any Environmental Law, the presence, disposal, escape, seepage,
leakage, spillage, discharge, emission, release or threatened release of any
Hazardous Substances or any action, suit, proceeding or investigation brought or
threatened with respect to any Hazardous Substances (including, but not limited
to, claims with respect to wrongful death, personal injury or damage to
property), in each case including, without limitation, the reasonable fees and
disbursements of counsel and allocated costs of internal counsel incurred in
connection with any such investigation, litigation or other proceeding. In
litigation, or the preparation therefor, the Banks and the Bank Agents shall be
entitled to select their own counsel and, in addition to the foregoing
indemnity, the Borrower agrees to pay promptly the reasonable fees and expenses
of such counsel. If and to the extent that the obligations of the Borrower
under this Section 17 are unenforceable for any reason, the Borrower hereby
agrees to make the maximum contribution to the payment in satisfaction of such
obligations which is permissible under applicable law. The covenants contained
in this Section 17 shall survive payment or satisfaction in full of all other
Obligations. The foregoing notwithstanding, the Borrower shall not be required
to indemnify any Bank Agent or any Bank for any liabilities, losses, damages or
expenses to the extent that the foregoing arise directly and exclusively from
such Bank Agent's or such Bank's gross negligence or willful misconduct.
18. SURVIVAL OF COVENANTS, ETC.
All covenants, agreements, representations and warranties made herein, in
the Notes, in any of the other Loan Documents or in any documents or other
papers delivered by or on behalf of the Borrower or any of its Subsidiaries
pursuant hereto shall be deemed to have been relied upon by the Banks and the
Bank Agents, notwithstanding any investigation heretofore or hereafter made by
any of them, and shall survive the making by the Banks of any of the Loans and
the issuance, extension or renewal of any Letters of Credit, as herein
contemplated, and shall continue in full force and effect so long as any Letter
of Credit or any Obligation remains outstanding or any Bank has any obligation
to make any Loans or the Issuing Bank has any obligation to issue, extend or
renew any Letter of Credit, and for such further time as may be otherwise
expressly specified in this Credit Agreement. All statements contained in any
certificate or other paper delivered to any Bank or any Bank Agent at any time
by or on behalf of the Borrower or any of its Subsidiaries pursuant hereto or in
connection with the transactions contemplated hereby shall constitute
representations and warranties by the Borrower or such Subsidiary hereunder.
19. ASSIGNMENT AND PARTICIPATION.
19.1. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided herein, each
Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment
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Percentage and Commitment and the same portion of the Loans at the time owing to
it, the Notes held by it, its participating interest in the risk relating to any
Letters of Credit, and its obligation to purchase assignments of Swingline
Loans) and the other Loan Documents; provided that (i) each of the Bank Agents
and, unless a Default or Event of Default shall have occurred and be continuing,
the Borrower shall have given its prior written consent to such assignment,
which consent, in the case of the Borrower and the Bank Agents, will not be
unreasonably withheld, (ii) each such assignment shall be of a constant, and not
a varying, percentage of all the assigning Bank's rights and obligations in
respect of the Revolving Credit Loans, the Swingline Loans and the Letters of
Credit under this Credit Agreement, (iii) each assignment shall be in a minimum
amount of $5,000,000 and (iv) the parties to such assignment shall execute and
deliver to the Agent, for recording in the Register (as hereinafter defined), an
Assignment and Acceptance, substantially in the form of Exhibit E hereto (an
"Assignment and Acceptance"), together with any Notes subject to such
assignment. In the event that a Bank Agent holds a Total Percentage under this
Credit Agreement in an amount less than eleven percent (11%), such Bank Agent
agrees that, at the request of the Borrower and the Majority Banks, and provided
no Default or Event of Default shall have occurred and be continuing, such Bank
Agent shall resign as Bank Agent in accordance with Section 15.9 hereof. Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
at least five (5) Business Days after the execution thereof', (i) the assignee
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Bank hereunder
(including, without limitation, those under Section 6.2.3), and (ii) the
assigning Bank shall, to the extent provided in such assignment and upon payment
to the Agent of the registration fee referred to in Section 19.3, be released
from its obligations under this Credit Agreement.
19.2. CERTAIN REPRESENTATIONS AND WARRANTIES; LIMITATIONS; COVENANTS. By
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Bank makes no representation or
warranty, express or implied, and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection
with this Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant hereto or the attachment, perfection or priority of any
security interest or mortgage;
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or
observance by the Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations of
any of their obligations under this Credit Agreement or any of the other
Loan Documents or any other instrument or document furnished pursuant
hereto or thereto;
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(c) such assignee confirms that it has received a copy of this
Credit Agreement and each of the other Loan Documents, together with
copies of the most recent financial statements referred to in Section 7.3
and Section 8.4 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this Credit
Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this
Credit Agreement and the other Loan Documents as are delegated to the
Agent by the terms hereof or thereof, together with such powers as are
reasonably incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Bank;
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance; and
(i) such assignee acknowledges that it has made arrangements with
the assigning Bank satisfactory to such assignee with respect to its pro
rata share of Letter of Credit Fees in respect of outstanding Letters of
Credit.
19.3. REGISTER. The Agent shall maintain a copy of each Assignment and
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of' and principal amount of the Revolving Credit Loans and Swingline
Loans owing to, and Letter of Credit Participations purchased by, the Banks from
time to time. The entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Agent and the Banks may treat each Person
whose name is recorded in the Register as a Bank hereunder for all purposes of
this Credit Agreement. The Register shall be available for inspection by the
Borrower and the Banks at any reasonable time and from time to time upon
reasonable prior notice. Upon each such recordation, the assigning Bank agrees
to pay or cause the assignee Bank to pay to the Agent a registration fee in the
sum of $3,500.
19.4. NEW NOTES. Upon its receipt of an Assignment and Acceptance executed
by the parties to such assignment, together with each Note subject to such
assignment, the Agent shall (i) record the information contained therein in the
Register, and (ii) give prompt notice thereof to the Borrower and the Banks
(other than the assigning Bank). Within five (5) Business Days after receipt of
such notice, the Borrower, at its own expense, shall execute and deliver to the
Agent, in exchange for each surrendered Note, a new Note to the order of such
Eligible Assignee in an
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amount equal to the amount assumed by such Eligible Assignee pursuant to such
Assignment and Acceptance and, if the assigning Bank has retained some portion
of its obligations hereunder, a new Note to the order of the assigning Bank in
an amount equal to the amount retained by it hereunder. Such new Notes shall
provide that they are replacements for the surrendered Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Notes, shall be dated the effective date of such Assignment and
Acceptance and shall otherwise be in substantially the form of the assigned
Notes. Within five (5) days of issuance of any new Notes pursuant to this
Section 19.4, the Borrower shall deliver an opinion of counsel, addressed to the
Banks and the Agent, relating to the due authorization, execution and delivery
of such new Notes and the legality, validity and binding effect thereof, in form
and substance satisfactory to the Banks, provided that the Borrower shall be
required to deliver such an opinion only at the request and the expense of the
Eligible Assignee. The surrendered Notes shall be marked "canceled" and returned
to the Borrower.
19.5. PARTICIPATIONS. Each Bank may sell participations to one or more
banks or other Persons in all or a portion of such Bank's rights and obligations
under this Credit Agreement and the other Loan Documents; provided that (i) each
such participation shall be in an amount of not less than $5,000,000, (ii) any
such sale or participation shall not affect the rights and duties of the selling
Bank hereunder to the Borrower and (iii) the only rights granted to the
participant pursuant to such participation arrangements with respect to waivers,
amendments or modifications of the Loan Documents shall be the rights to approve
waivers, amendments or modifications that would reduce the principal of or the
interest rate on any Loans, extend the term or increase the amount of the
Commitment of such Bank as it relates to such participant, reduce the amount of
any Commitment Fees or Letter of Credit Fees to which such participant is
entitled or extend any regularly scheduled payment date for principal or
interest or fees.
19.6. DISCLOSURE. The Borrower agrees that in addition to disclosures made
in accordance with standard and customary banking practices, any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
participants shall agree (i) to treat in confidence such information unless such
information otherwise becomes public knowledge, (ii) not to disclose such
information to a third party, except to their legal counsel or as required by
law or legal process, and (iii) not to make use of such information for purposes
of transactions unrelated to such contemplated assignment or participation.
19.7. ASSIGNEE OR PARTICIPANT AFFILIATED WITH THE BORROWER. If any
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to Section 13.1 or Section
13.2, and the determination of the Majority Banks shall for all purposes of this
Agreement and the other Loan Documents be made without regard to such assignee
Bank's interest in any of the Loans. If any Bank sells a participating interest
in any of the Loans or Reimbursement Obligations to a participant, and such
participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Agent of the sale of such
participation. A transferor
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Bank shall have no right to vote as a Bank hereunder or under any of the other
Loan Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or modifications to any of the Loan Documents or for
purposes of making requests to the Agent pursuant to Section 13.1 or Section
13.2 to the extent that such participation is beneficially owned by the Borrower
or any Affiliate of the Borrower, and the determination of the Majority Banks
shall for all purposes of this Agreement and the other Loan Documents be made
without regard to the interest of such transferor Bank in the Loans to the
extent of such participation.
19.8. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any assigning Bank shall retain
its rights to be indemnified pursuant to Section 16 or Section 17 with respect
to any claims or actions arising prior to the date of such assignment. If any
assignee Bank is not incorporated under the laws of the United States of America
or any state thereof, it shall, prior to the date on which any interest or fees
are payable hereunder or under any of the other Loan Documents for its account,
deliver to the Borrower and the Agent certification as to its exemption from
deduction or withholding of any United States federal income taxes. Anything
contained in this Section 19 to the contrary notwithstanding, any Bank may at
any time pledge all or any portion of its interest and rights under this Credit
Agreement (including all or any portion of its Notes) to any of the twelve
Federal Reserve Banks organized under Section 4 of the Federal Reserve Act, 12
U.S.C. Section 341. No such pledge or the enforcement thereof shall release the
pledgor Bank from its obligations hereunder or under any of the other Loan
Documents.
19.9. ASSIGNMENT BY BORROWER. The Borrower shall not assign or transfer
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks, which consent may be withheld in
such Bank's sole and absolute discretion, and any attempted assignment in
violation of this Section 19 shall be void ab initio.
20. NOTICES, ETC.
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Notes or any Letter of Credit Applications or any other
Loan Document shall be in writing and shall be delivered by hand, mailed by
United States registered or certified first class mail, postage prepaid, sent by
overnight courier, or sent by telegraph, telecopy, facsimile or telex and
confirmed by delivery via courier or postal service, addressed as follows:
(a) if to the Borrower, at 1055 Page Avenue, Fremont, California
94538, Attention: Chief Financial Officer, or at such other address for
notice as the Borrower shall last have furnished in writing to the Person
giving the notice;
(b) if to the Agent, at 435 Tasso Street, Suite 250, Palo Alto,
California 94301, Attention: Michelle Arellano, or such other address for
notice as the Agent shall last have furnished in writing to the Person
giving the notice; and
(c) if to any of the Bank Agents or any Bank, at such Bank Agent's
or such Bank's address set forth on Schedule 1.1 hereto, or such other
address for notice as such Bank Agent or Bank shall have last furnished in
writing to the Person giving the notice.
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Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified first-class mail, postage prepaid, on
the third Business Day following the mailing thereof.
21. GOVERNING LAW.
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
STATE OF CALIFORNIA AND SHALL FOR ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE LAWS OF SAID STATE OF CALIFORNIA (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER AGREES THAT ANY SUIT FOR
THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY
BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR ANY FEDERAL COURT SITTING
THEREIN AND CONSENTS TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE
OF PROCESS IN ANY SUCH SUIT BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS
SPECIFIED IN SECTION 20. THE BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT
SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
22. HEADINGS.
The captions in this Credit Agreement are for convenience of reference
only and shall not define or limit the provisions hereof.
23. COUNTERPARTS.
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving any matter with respect to this Credit
Agreement it shall not be necessary to produce or account for more than one such
counterpart signed by the party against whom enforcement is sought.
24. ENTIRE AGREEMENT, ETC.
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties hereto and thereto
with respect to the transactions contemplated hereby and thereby. Neither this
Credit Agreement nor any term hereof may be changed, waived, discharged or
terminated, except as provided in Section 26.
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25. WAIVER OF JURY TRIAL.
The Borrower hereby waives its right to a jury trial with respect to any
action or claim arising out of any dispute in connection with this Credit
Agreement, the Notes or any of the other Loan Documents, any rights or
obligations hereunder or thereunder or the performance of which rights and
obligations. Except as prohibited by applicable law, the Borrower hereby waives
any right it may have to claim or recover in any litigation referred to in the
preceding sentence any special, exemplary, punitive or consequential damages or
any damages other than, or in addition to, actual damages. The Borrower (i)
certifies that no representative, agent or attorney of any Bank or any Bank
Agent has represented, expressly or otherwise, that such Bank or such Bank Agent
would not, in the event of litigation, seek to enforce the foregoing waivers and
(ii) acknowledges that the Agent, the Bank Agents and the Banks have been
induced to enter into this Credit Agreement, the other Loan Documents to which
it is a party and the Subordinated Debt Documents to which it is a party by,
among other things, the waivers and certifications contained herein.
26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
Any consent or approval required or permitted by this Credit Agreement to
be given by all of the Banks may be given, and any term of this Credit
Agreement, the other Loan Documents or any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by the
Borrower or any of its Subsidiaries of any terms of this Credit Agreement, the
other Loan Documents or such other instrument or the continuance of any Default
or Event of Default may be waived (either generally or in a particular instance
and either retroactively or prospectively) with, but only with, the written
consent of the Borrower and the written consent of the Majority Banks.
Notwithstanding the foregoing, the rate of interest on the Notes, the timing of
any regularly scheduled payment date for principal, interest or fees, the term
of the Notes, the amount of the Commitments of the Banks and the amount of
Commitment Fee or Letter of Credit Fees hereunder may not be changed without the
written consent of the Borrower and the written consent of each Bank affected
thereby (except that the Commitments may be changed pursuant to and in
connection with assignments made in accordance with Section 19 hereof); the
definition of Majority Banks may not be amended wiTHOUT the written consent of
all of the Banks; the amount of any Letter of Credit Fees payable for the
Issuing Bank's account may not be amended without the written consent of the
Issuing Bank and the amount of the Agent's Fee and Section 15 may not be amended
without the written consent of the Agent, and this sentence may not be waived or
modified except with the written consent of all of the Banks. No waiver shall
extend to or affect any obligation not expressly waived or impair any right
consequent thereon. No course of dealing or delay or omission on the part of the
Agent or any Bank in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon the Borrower shall
entitle the Borrower to other or further notice or demand in similar or other
circumstances.
27. SEVERABILITY.
The provisions of this Credit Agreement and each of the other Loan
Documents are severable and if any one clause or provision hereof or thereof
shall be held invalid or unenforceable in whole or in part in any jurisdiction,
then such invalidity or unenforceability
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shall affect only such clause or provision, or part hereof or thereof, in such
jurisdiction, and shall not in any manner affect such clause or provision in any
other jurisdiction, or any other clause or provision of this Credit Agreement or
any of the other Loan Documents in any jurisdiction.
28. CONFIDENTIALITY.
Each Bank Agent and each Bank agrees to take, and to cause its respective
affiliates to take, reasonable precautions in accordance with its safe and sound
banking practice and its customary procedures, to maintain the confidentiality
of all non-public information relating to the Borrower or any Subsidiary
provided to such Bank Agent or Bank in connection with this Credit Agreement or
any other Loan Document, and none of the Bank Agents, the Banks, nor any of
their respective affiliates shall use any such information other than in
connection with or in enforcement of this Credit Agreement and the other Loan
Documents or in connection with other business now or hereafter existing or
contemplated with the Borrower or any Subsidiary, except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Bank Agents or the Banks, or (ii) was or becomes
available on a non-confidential basis from a source other than the Borrower, so
long as such source is not bound by a confidentiality agreement with the
Borrower known to such Bank; provided, however, that the provisions of this
Section 28 shall not restrain the Bank AgeNTS or the Banks from divulging such
information (A) at the request or pursuant to any requirement of any
governmental authority to which a Bank Agent or Bank is subject or in connection
with an examination of such Bank Agent or Bank by any such authority; (B)
pursuant to subpoena or other court process; (C) when required to do so in
accordance with the provisions of any applicable legal requirement; (D) to the
extent reasonably required in connection with any litigation or proceeding to
which any Bank Agent or Bank or any of their respective affiliates may be party;
(E) to the extent reasonably required in connection with the exercise by a Bank
Agent or Bank of any right or remedy hereunder or under any other Loan
Documents; (F) to a Bank Agent's or Bank's independent auditors and other
professional advisors; (G) to any participant or assignee, actual or potential,
provided that such Person agrees in writing to keep such information
confidential to the same extent required of the assigning Bank Agent or Bank
hereunder; (H) as expressly permitted under the terms of any other document or
agreement regarding confidentiality to which the Borrower or any Subsidiary is
party or is deemed party with any Bank Agent or Bank, or any affiliate of such
Bank Agent or Bank; and (I) to its affiliates, which shall be deemed to be bound
by the provisions of this Section 28.
29. ORIGINAL AGREEMENT.
This Credit Agreement is not intended to be, and shall not be construed to
create, a novation or accord and satisfaction, and, except as otherwise provided
herein, the Original Credit Agreement, as delivered on November 30, 1995, and
amended by that certain Amendment No. 1 dated as of January 8, 1996 and that
certain Amendment No. 2 dated as of March 31, 1996 prior to the execution hereof
and as amended and restated hereby, shall remain in full force and effect.
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IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first set forth above.
HMT TECHNOLOGY CORPORATION
/s/ Peter S. Norris
By:_________________________________________
Title:
BANQUE PARIBAS, individually and as
Co-Syndication Agent
/s/ Nanci Meyer
By:_________________________________________
Title:
/s/ Lee S. Buckner
By:_________________________________________
Title:
THE FIRST NATIONAL BANK OF BOSTON,
individually and as Agent and
Co-Syndication Agent
/s/ Maia D. Heymann
By:_________________________________________
Title:
UNION BANK OF CALIFORNIA, N.A.
/s/ Patrick J. Clemens
By:_________________________________________
Title:
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
/s/ Christopher Gernhard
By:_________________________________________
Title:
FLEET NATIONAL BANK
/s/ Thomas Davies
By:_________________________________________
Title:
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