Exhibit 10.2
EXECUTION VERSION
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
CREDIT AGREEMENT
among
ATL PRODUCTS, INC.
and
THE BANKS NAMED HEREIN
and
FLEET NATIONAL BANK
as Agent for the Banks
December 18, 1998
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
----
SECTION I. INTERPRETATION.............................................................................1
1.01. Definitions....................................................................................1
1.02. GAAP..........................................................................................16
1.03. Headings......................................................................................17
1.04. Plural Terms..................................................................................17
1.05. Time..........................................................................................17
1.06. Governing Law.................................................................................17
1.07. Construction..................................................................................17
1.08. Entire Agreement..............................................................................17
1.09. Calculation of Interest and Fees..............................................................17
1.10. Other Interpretive Provisions.................................................................17
SECTION II. CREDIT FACILITIES.........................................................................18
2.01. Revolving Loan Facility.......................................................................18
2.03. Fees..........................................................................................21
2.04. Prepayments...................................................................................21
2.05. Other Payment Terms...........................................................................22
2.06. Notes and Interest Account....................................................................23
2.07. Revolving Loan Funding, Etc...................................................................23
2.08. Pro Rata Treatment............................................................................24
2.09. Change of Circumstances.......................................................................25
2.10. Taxes on Payments.............................................................................27
2.11. Funding Loss Indemnification..................................................................29
2.12. Replacement of Banks..........................................................................29
2.13. Guaranty......................................................................................29
SECTION III. CONDITIONS PRECEDENT......................................................................30
3.01. Initial Conditions Precedent..................................................................30
3.02. Conditions Precedent to Each Credit Event.....................................................30
3.03. Conditions Precedent to Each Conversion or Each Selection of Interest Period..................30
SECTION IV. REPRESENTATIONS AND WARRANTIES............................................................31
4.01. Borrower's Representations and Warranties.....................................................31
SECTION V. COVENANTS.................................................................................33
5.01. Affirmative Covenants.........................................................................33
5.02. Negative Covenants............................................................................34
SECTION VI. DEFAULT...................................................................................35
6.01. Events of Default.............................................................................35
6.02. Remedies......................................................................................37
SECTION VII. AGENT AND RELATIONS AMONG BANKS...........................................................38
7.01. Appointment, Powers and Immunities............................................................38
7.02. Reliance by Agent.............................................................................38
7.03. Defaults......................................................................................38
7.04. Indemnification...............................................................................39
-i-
7.05. Non-Reliance..................................................................................39
7.06. Resignation or Removal of Agent...............................................................39
7.07. Authorization.................................................................................40
7.08. Agent in its Individual Capacity..............................................................40
7.09. Agent's Communications Binding Upon Banks.....................................................40
7.10. No Obligations of Borrower....................................................................40
SECTION VIII. MISCELLANEOUS.............................................................................40
8.01. Notices.......................................................................................40
8.02. Expenses......................................................................................41
8.03. Indemnification...............................................................................42
8.04. Waivers; Amendments...........................................................................42
8.05. Successors and Assigns........................................................................43
8.06. Setoff; Security Interest.....................................................................45
8.07. No Third Party Rights.........................................................................46
8.08. Partial Invalidity............................................................................46
8.09. Jury Trial....................................................................................46
8.10. Counterparts..................................................................................46
8.11. Confidentiality...............................................................................46
EXHIBIT A NOTICE OF BORROWING......................................................................A-1
EXHIBIT B NOTICE OF CONVERSION.....................................................................B-1
EXHIBIT C NOTICE OF INTEREST PERIOD SELECTION......................................................C-1
EXHIBIT D REVOLVING LOAN NOTE......................................................................D-1
EXHIBIT E FORM OF GUARANTY...........................................................................1
EXHIBIT F ASSIGNMENT AGREEMENT.....................................................................F-1
ATTACHMENT 1 TO ASSIGNMENT AGREEMENT.............................................................................1
ATTACHMENT 2 TO ASSIGNMENT AGREEMENT.............................................................................1
-ii-
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
Contents/Authorities headers and footers to appear on any pages following the
Table of Contents/Authorities.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 18, 1998, is entered into
by and among:
(1) ATL PRODUCTS, INC., a Delaware corporation ("Borrower");
(2) Each of the financial institutions from time to time
listed in Schedule I hereto, as amended from time to time (such
financial institutions to be referred to herein collectively as the
"Banks"); and
(3) FLEET NATIONAL BANK, a national banking association
("Fleet"), as agent for the Banks (in such capacity, "Agent").
RECITALS
A. Borrower has requested that the Banks provide certain credit
facilities to Borrower on an unsecured basis but which shall be guarantied by
Borrower's parent Quantum Corporation, a Delaware corporation ("Guarantor").
B. The Banks are willing to provide such credit facilities upon the
terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION I. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any
other Credit Document, each term set forth below, when used in this Agreement or
any other Credit Document, shall have the respective meaning given to that term
below or in the provision of this Agreement or other Credit Document referenced
below:
"Agent" shall have the meaning given to that term in clause
(3) of the introductory paragraph.
"Agent's Fee Letter" shall mean the letter agreement dated the
date of this Agreement between Borrower and Agent.
"Affiliate" shall mean, with respect to any Person, (a) each
Person that, directly or indirectly, owns or controls, whether
beneficially or as a trustee, guardian or other fiduciary, ten percent
(10%) or more of the Equity Securities of such Person having voting
power, (b) each Person that controls, is controlled by or is under
common control with such Person or any Affiliate of such Person or (c)
each of such Person's officers and directors; provided, however, that
in no case shall Agent or any Bank be deemed to be an Affiliate of
Borrower or any of Borrower's Subsidiaries for purposes of this
Agreement.
For the purpose of this definition, "control" of a Person shall mean
the possession, directly or indirectly, of the power to direct or cause
the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" shall mean this Credit Agreement.
"Applicable Lending Office" shall mean, with respect to any
Bank, (a) initially, its office designated as such in Schedule I (or,
in the case of any Bank which becomes a Bank by an assignment pursuant
to Subparagraph 8.05(c), its office designated as such in the
applicable Assignment Agreement) and (b) subsequently, such other
office or offices as such Bank may designate to Agent as the office at
which such Bank's Revolving Loans will thereafter be maintained and for
the account of which all payments of principal of, and interest on,
such Bank's Revolving Loans will thereafter be made.
"Applicable Margin" shall mean, with respect to any LIBOR Loan
at any time, the per annum margin which is determined pursuant to the
Pricing Grid and added to the LIBO Rate for such LIBOR Loan; provided,
however, that each Applicable Margin determined pursuant to the Pricing
Grid shall be increased by two percent (2.00%) (a) on the date an Event
of Default of the type referred to in Subparagraph 6.01(a), 6.01(e) or
6.01(f) occurs and (b) on the date Agent provides written notice to
Borrower of the occurrence of any Event of Default other than of the
type referred to in Subparagraph 6.01(a), 6.01(e) or 6.01(f), and in
each case shall continue at such increased rate unless and until such
Event of Default is waived in accordance with this Agreement. The
Applicable Margins shall be determined as provided in the Pricing Grid
and may change for each Pricing Period.
"Assignee Bank" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment Agreement" shall have the meaning given to that
term in Subparagraph 8.05(c).
"Assignment Effective Date" shall have, with respect to each
Assignment Agreement, the meaning set forth therein.
"Assignor Bank" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Attorney Costs" of any Person shall mean and include all
reasonable fees and disbursements of any law firm or other external
counsel for such Person and, to the extent such services are not
redundant to those provided in the matter by external counsel for such
Person, the allocated cost of internal legal services and all
disbursements of internal counsel.
2
"Authorized Financial Officer" shall mean (a) with respect to
Borrower, the Chief Financial Officer or Treasurer of Borrower or any
Vice President of Finance of Borrower and (b) with respect to
Guarantor, the Chief Financial Officer or Treasurer of Guarantor or any
Vice President of Finance of Guarantor.
"Banks" shall have the meaning given to that term in clause
(2) of the introductory paragraph.
"Base Rate" shall mean, on any day, the greater of (a) the
Prime Rate in effect on such date and (b) the Federal Funds Rate for
such day plus one-half percent (0.50%); provided, however, that the
Base Rate shall be increased by two percent (2.00%) (a) on the date an
Event of Default of the type referred to in Subparagraph 6.01(a),
6.01(e) or 6.01(f) occurs and (b) on the date Agent provides written
notice to Borrower of the occurrence of any Event of Default other than
of the type referred to in Subparagraph 6.01(a), 6.01(e) or 6.01(f),
and in each case shall continue at such increased rate unless and until
such Event of Default is waived in accordance with this Agreement.
"Base Rate Loan" shall mean, at any time, a Revolving Loan
which then bears interest as provided in clause (i) of Subparagraph
2.01(c).
"Borrower" shall have the meaning given to that term in clause
(1) of the introductory paragraph.
"Borrower Disclosure Letter" shall mean the letter from
Borrower to Agent, dated the date of this Agreement, which identifies
itself as the "Borrower Disclosure Letter" under this Agreement.
"Borrower Permitted Indebtedness" shall mean and include
(without duplication) the following:
(a) The Obligations of Borrower under the Credit
Documents;
(b) Indebtedness listed in the Borrower Disclosure
Letter existing on the date of this Agreement;
(c) Intercompany Indebtedness of Borrower to
Guarantor or any of Guarantor's Subsidiaries provided that the
aggregate principal amount of all such Intercompany
Indebtedness does not exceed $15,000,000 at any time;
(d) Indebtedness of the types described in clauses
(iii), (iv), (viii), (ix), (x) (other than with respect to the
references to clauses (ii) and (vi) therein), (xi), (xii),
(xiii), (xiv), (xv), (xvi) and (xvii) of Subparagraph 5.02(a)
of the Guarantor Credit Agreement; and
(e) Indebtedness of Borrower and its Subsidiaries not
otherwise permitted hereunder, provided that the aggregate
principal amount of all such Indebtedness does not exceed at
any time Five Million Dollars ($5,000,000).
3
"Borrowing" shall mean a borrowing by Borrower consisting of
the Revolving Loans made by each of the Banks on the same date and of
the same Type pursuant to a single Notice of Borrowing.
"Business Day" shall mean any day other than Saturday and
Sunday on which (a) commercial banks are not authorized or required to
close in San Francisco, California, Boston, Massachusetts or New York,
New York and (b) if such Business Day is related to a Revolving Loan
which bears or is to bear interest based on a LIBO Rate, dealings in
Dollar deposits are carried out in the London or other applicable
interbank eurodollar market.
"Capital Adequacy Requirement" shall have the meaning given to
that term in Subparagraph 2.09(d).
"Capital Leases" shall mean any and all lease obligations
that, in accordance with GAAP, are required to be capitalized on the
books of a lessee.
"Change of Control" shall mean with respect to Borrower or
Guarantor, as applicable, the occurrence of any of the following
events: (i) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall (A) acquire beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, as amended) of forty percent (40%) or
more of the outstanding Equity Securities of Borrower or Guarantor
entitled to vote for members of the board of directors, or (B) acquire
all or substantially all of the assets of Borrower or Guarantor and its
Subsidiaries taken as a whole, or (ii) during any period of fifteen
(15) consecutive calendar months, individuals who are directors of
Guarantor on the first day of such period ("Initial Directors") and any
directors of Guarantor who are specifically approved by two-thirds of
the directors of Guarantor who are Initial Directors or
previously-approved Approved Directors ("Approved Directors") shall
cease to constitute a majority of the Board of Directors of Guarantor
before the end of such period.
"Change of Law" shall have the meaning given to that term in
Subparagraph 2.09(b).
"Closing Date" shall mean the date when the initial Revolving
Loan is made.
"Commitment" shall mean, with respect to any Bank at any time,
such Bank's Proportionate Share at such time of the Total Commitment at
such time.
"Commitment Fee Percentage" shall mean, with respect to the
Unused Commitment at any time, a per annum rate which is determined
pursuant to the Pricing Grid.
"Commitment Fees" shall have the meaning given to that term in
Subparagraph 2.03(c).
4
"Contingent Obligation" shall mean, with respect to any Person
without duplication, (a) any Guaranty Obligation of that Person; and
(b) any direct or indirect monetary obligation or liability, contingent
or otherwise, of that Person (i) in respect of any letter of credit or
similar instrument issued for the account of that Person or as to which
that Person is otherwise liable for reimbursement of drawings, (ii) to
purchase any materials, supplies or other property from, or to obtain
the services of, another Person if the relevant contract or other
related document or obligation requires that payment for such
materials, supplies or other property, or for such services, shall be
made regardless of whether delivery of such materials, supplies or
other property is ever made or tendered, or such services are ever
performed or tendered if and to the extent such obligations are not
designated as accounts payable in accordance with GAAP, or (iii)
incurred pursuant to any interest rate swap, cap or collar agreements,
interest rate future or option contracts, currency swap agreements,
currency future or option contracts or other similar agreements
relating to interest rates or currencies. The amount of any Contingent
Obligation shall be deemed equal to the liability in respect thereof
reasonably anticipated in accordance with GAAP.
"Contractual Obligation" of any Person shall mean, any
indenture, note, lease, loan agreement, security, deed of trust,
mortgage, security agreement, guaranty, instrument, contract, agreement
or other form of contractual obligation or undertaking to which such
Person is a party or by which such Person or any of its property is
bound.
"Credit Documents" shall mean and include the Loan Documents;
all documents, instruments and agreements delivered to Agent or any
Bank pursuant to Paragraph 3.01; and all other documents, instruments
and agreements delivered by Borrower, Guarantor or any of their
Subsidiaries to Agent or any Bank in connection with this Agreement on
or after the date of this Agreement.
"Credit Event" shall mean the making of any Revolving Loan.
"Default" shall have the meaning given to that term in
Paragraph 6.01.
"Defaulting Bank" shall mean a Bank which has failed to fund
its portion of any Borrowing which it is required to fund under this
Agreement and has continued in such failure for three (3) Business Days
after written notice from Agent.
"Dollars" and "$" shall mean the lawful currency of the United
States of America.
"Equity Securities" of any Person shall mean (a) all common
stock, preferred stock, participations, shares, partnership interests
or other equity interests in such Person (regardless of how designated
and whether or not voting or non-voting) and (b) all warrants, options
and other rights to acquire any of the foregoing, other than
convertible debt securities which have not been converted into common
stock, preferred stock, participations, shares, partnership interests
or other equity interests in any such Person.
"Event of Default" shall have the meaning given to that term
in Paragraph 6.01.
5
"Executive Officer" shall mean, with respect to Borrower or
Guarantor, respectively, the Chairman, Chief Executive Officer, Chief
Operating Officer, President, Chief Financial Officer, Treasurer,
General Counsel or Vice President of Corporate Development and Planning
of such Person or any division President or Executive Vice President of
such Person (or, if the titles are changed, the persons having similar
responsibilities for such Person).
"Federal Funds Rate" shall mean, for any day, the Federal
funds effective rate as set forth in the weekly statistical release
designated as H.15(519) published by the Federal Reserve Bank of New
York for such day, or in any successor publication (or, if such rate is
not so published for any day, the average rate quoted to Agent on and
for such day by three (3) Federal funds brokers of recognized standing
selected by Agent).
"Federal Reserve Board" shall mean the Board of Governors of
the Federal Reserve System.
"Financial Statements" shall mean, with respect to any
accounting period for any Person, consolidated statements of income,
shareholders' equity and cash flows of such Person for such period, and
a balance sheet of such Person as of the end of such period, setting
forth in each case in comparative form figures for the corresponding
period in the preceding fiscal year if such period is less than a full
fiscal year or, if such period is a full fiscal year, corresponding
figures from the preceding annual audit, all prepared in reasonable
detail and in accordance with GAAP.
"Fleet" shall have the meaning given to that term in clause
(3) of the introductory paragraph.
"Funding Losses" shall mean, with respect to any repayment,
prepayment or conversion of any LIBOR Loan as set forth in clause (a)
of Paragraph 2.11, any failure to borrow any LIBOR Loan as set forth in
clause (b) of Paragraph 2.11 or any failure to convert into any LIBOR
Loan as set forth in clause (c) of Paragraph 2.11, the amount (which
shall not be less than zero) computed in accordance with the following
formula:
Funding Losses = (R-T) x P x D
-------------
360
where R = the interest rate that was or would have
been applicable to such LIBOR Loan;
T = the LIBO Rate for the date of such
repayment, prepayment, conversion, failure
to borrow or failure to convert for new
LIBOR Loans, of the same principal amount
made for an assumed Interest Period (the
"Remaining Period") which begins on the date
of such repayment, prepayment, conversion,
failure to borrow or failure to convert and
ends on the last day of the actual Interest
Period that was or would have been
applicable to the LIBOR Loan that was
6
repaid, prepaid or converted or that was not
borrowed or converted;
P = the principal amount of the LIBOR Loan that
was repaid, prepaid or converted or that was
not borrowed or converted; and
D = the number of days in the Remaining Period.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to
time, consistently applied.
"Governmental Authority" shall mean any domestic or foreign
national, state or local government, any political subdivision thereof,
any department, agency, authority or bureau of any of the foregoing, or
any other entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government,
including, without limitation, the Federal Deposit Insurance
Corporation, the Federal Reserve Board, the Comptroller of the
Currency, any central bank or any comparable authority.
"Governmental Charges" shall mean, with respect to any Person,
all levies, assessments, fees, claims or other charges imposed by any
Governmental Authority upon such Person or any of its property or
otherwise payable by such Person.
"Governmental Rule" shall mean any law, rule, regulation,
ordinance, order, code interpretation, judgment, decree, directive,
guidelines, policy or similar form of decision of any Governmental
Authority.
"Guarantor" has the meaning given to that term in Recital A.
"Guarantor Credit Agreement" shall mean that certain Credit
Agreement, dated as of June 6, 1997, among Guarantor, the financial
institutions listed in Schedule I thereto, ABN AMRO Bank N.V., San
Francisco International Branch ("ABN") and CIBC Inc., as co-arrangers
for such financial institutions, Canadian Imperial Bank of Commerce, as
administrative agent for such financial institutions, ABN, as
syndication agent for such financial institutions, Bank of America
National Trust and Savings Association, as documentation agent for such
financial institutions, and certain co-agents listed therein (as
amended, restated or otherwise modified from time to time in accordance
with Paragraph 8.04 thereof).
"Guarantor Credit Documents" shall mean the "Credit Documents"
as such term is defined in the Guarantor Credit Agreement.
"Guaranty Obligation" shall mean, with respect to any Person,
any direct or indirect liability of that Person with respect to any
indebtedness, lease, dividend, letter of credit or other obligation
(the "primary obligations") of another Person (the "primary obligor"),
including any obligation of that Person, whether or not contingent, (a)
to purchase, repurchase or otherwise acquire such primary obligations
or any property constituting direct or indirect security therefor, or
(b) to advance or provide funds (i) for
7
the payment or discharge of any such primary obligation, or (ii) to
maintain working capital or equity capital of the primary obligor or
otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition of the primary obligor, or
(c) to purchase property, securities or services primarily for the
purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary
obligation (except to the extent of the fair market value of such
property, securities or services to be purchased), or (d) otherwise to
assure or hold harmless the holder of any such primary obligation
against loss in respect thereof. The amount of any Guaranty Obligation
shall be deemed equal to the liability in respect thereof reasonably
anticipated under GAAP.
"Indebtedness" of any Person shall mean, without duplication
(in each case, measured in accordance with GAAP):
(a) All monetary obligations of such Person evidenced
by notes, bonds, debentures or other similar instruments and
all other obligations of such Person for borrowed money;
(b) All monetary obligations of such Person for the
deferred purchase price of property or services (including
obligations under letters of credit and other credit
facilities which secured or financed such purchase price),
other than trade payables incurred by such Person in the
ordinary course of its business on ordinary terms;
(c) All monetary obligations of such Person under
conditional sale or other title retention agreements with
respect to property acquired by such Person other than
pursuant to leases classified as operating leases under GAAP
(to the extent of the value of such property if the rights and
remedies of the seller or lender under such agreement in the
event of default are limited solely to repossession or sale of
such property);
(d) All monetary obligations of such Person as lessee
with respect to the capitalized portion of Capital Leases of
such Person (other than capitalized interest) calculated in
accordance with GAAP;
(e) all monetary obligations of such Person (other
than inchoate indemnity obligations) with respect to any
Synthetic Leases; provided, however, that the amount of
monetary obligations for the purpose of this clause (e) shall
be equal to the aggregate present value of scheduled rental
payments under each such Synthetic Lease (excluding any
component thereof in the nature of operating expenses, taxes
or similar obligations), together with the purchase price
payable by such Person at the end of such Synthetic Lease,
discounted by the interest rate implicit in such Synthetic
Lease;
(f) all monetary obligations of such Person (other
than inchoate indemnity obligations) with respect to any sale,
transfer or assignment of accounts
8
receivable and related rights and property by such Person with
recourse to such Person;
(g) All monetary obligations of such Person,
contingent or otherwise, under or with respect to letters of
credit, banker's acceptances or other similar facilities;
(h) All monetary obligations of such Person,
contingent or otherwise, under or with respect to interest
rate swap, cap or collar agreements, interest rate future or
option contracts, currency swap agreements, currency future or
option contracts or other similar agreements relating to
interest rates or currencies;
(i) All Contingent Obligations of such Person with
respect to the obligations of such Person or other Persons of
the types described in clauses (a) - (h) above; and
(j) All obligations of other Persons of the types
described in clauses (a) - (h) above to the extent secured by
(or for which any holder of such obligations has an existing
right, contingent or otherwise, to be secured by) any Lien in
any property (including accounts and contract rights) owned by
such Person, even though such person has not assumed or become
liable for the payment of such obligations; provided, however,
that the amount of such Indebtedness under this clause (j)
shall be the lesser of (i) the fair market value of the
property subject to such Lien and (ii) the amount of the
monetary obligations of such other Person.
"Interest Account" shall have the meaning given to that term
in Subparagraph 2.06(b).
"Interest Period" shall mean, with respect to any LIBOR Loan,
the time periods selected by Borrower pursuant to Subparagraph 2.01(b)
or Subparagraph 2.01(d) which commences on the first day of such
Revolving Loan or the effective date of any conversion and ends on the
last day of such time period, and thereafter, each subsequent time
period selected by Borrower pursuant to Subparagraph 2.01(e) which
commences on the last day of the immediately preceding time period and
ends on the last day of that time period.
"LIBO Rate" shall mean, with respect to any Interest Period
for the LIBOR Loans in any Borrowing, a rate per annum equal to the
quotient of (a) the arithmetic mean (rounded upward if necessary to the
nearest 1/16 of one percent) of the rates per annum appearing on the
Reuters screen LIBO page (or any successor publication) on the second
Business Day prior to the first day of such Interest Period at or about
11:00 A.M. (London time) (for delivery on the first day of such
Interest Period) for a term comparable to such Interest Period, divided
by (b) one minus the Reserve Requirement for such Revolving Loans in
effect from time to time. If for any reason rates are not available as
provided in clause (a) of the preceding sentence, the rate to be used
in clause (a) shall be, at Agent's discretion, (i) the rate per annum
at which Dollar deposits are offered to Agent
9
in the London interbank eurodollar currency market or (ii) the rate at
which Dollar deposits are offered to Agent in, or by Agent to major
banks in, any offshore interbank eurodollar market selected by Agent,
in each case on the second Business Day prior to the commencement of
such Interest Period at or about 10:00 A.M. (New York time) (for
delivery on the first day of such Interest Period) for a term
comparable to such Interest Period and in an amount approximately equal
to the amount of the Revolving Loan to be made or funded by Agent as
part of such Borrowing.
"LIBOR Loan" shall mean, at any time, a Revolving Loan which
then bears interest as provided in clause (ii) of Subparagraph 2.01(c).
"Lien" shall mean, with respect to any property, any security
interest, mortgage, pledge, lien or other encumbrance in, of, or on
such property or the income therefrom, including, without limitation,
the interest of a vendor or lessor under a conditional sale agreement,
Capital Lease or other title retention agreement.
"Loan Documents" shall mean this Agreement, the Notes, the
Guaranty, the Agent's Fee Letter, each Notice of Borrowing, and each
additional certificate delivered by Borrower, Guarantor or any of their
Subsidiaries from time to time pursuant to the terms of this Agreement
or any such other Loan Documents.
"Majority Banks" shall mean (a) at any time Revolving Loans
are outstanding and the Banks are obligated to make Revolving Loans
pursuant to their Commitments, Banks holding more than sixty-six and
two-thirds percent (66 2/3%) of the aggregate principal amount of all
Revolving Loans outstanding, calculated as if Revolving Loans in the
full amount of the Banks' Commitments were outstanding, (b) at any time
Revolving Loans are outstanding and the Banks are not obligated to make
Revolving Loans pursuant to their Commitments, Banks holding more than
sixty-six and two-thirds percent (66 2/3%) of the aggregate principal
amount of all Revolving Loans outstanding and (c) at any time no
Revolving Loans are outstanding, Banks whose aggregate Commitments
exceed sixty-six and two-thirds percent (66 2/3%) of the Total
Commitment at such time.
"Margin Stock" shall have the meaning given to that term in
Regulation U issued by the Federal Reserve Board, as amended from time
to time, and any successor regulation thereto.
"Material Adverse Effect" shall mean a material adverse effect
on (a) the business, assets, operations or financial or other condition
of Guarantor and its Subsidiaries taken as a whole; (b) the ability of
Borrower or Guarantor on behalf of Borrower to pay or perform the
Obligations in accordance with the terms of this Agreement and the
other Credit Documents; (c) the ability of Guarantor to pay or perform
its obligations in accordance with the terms of the Guaranty; or (d)
the rights and remedies of Agent and the Banks under this Agreement,
the Guaranty or any other Credit Documents taken as a whole.
10
"Material Subsidiaries" (a) with respect to Guarantor shall
have the meaning given to that term in the Guarantor Credit Agreement;
provided, however, that for purposes of determining Guarantor's
compliance with each of the representations, warranties and covenants
set forth in the Guarantor Credit Agreement and in the other Guarantor
Credit Documents, Material Subsidiaries shall include Borrower; and (b)
with respect to Borrower shall mean each Subsidiary of Borrower which
has assets with a total book value greater than ten percent (10%) of
the consolidated total assets of Borrower and its Subsidiaries, each
determined as of the end of the fiscal quarter immediately preceding
the date of determination.
"maturity" shall mean, with respect to any Revolving Loan,
interest, fee or other amount payable by Borrower under this Agreement
or the other Credit Documents, the date such Revolving Loan, interest,
fee or other amount becomes due, whether upon the stated maturity or
due date, upon acceleration or otherwise.
"Maturity Date" shall have the meaning given to that term in
Subparagraph 2.01(a).
"Moody's" means Moody's Investors Service, Inc. and any
successor thereto that is a nationally-recognized rating agency.
"Note" shall have the meaning given to that term in
Subparagraph 2.06(a).
"Notice of Borrowing" shall have the meaning given to that
term in Subparagraph 2.01(b).
"Notice of Conversion" shall have the meaning given to that
term in Subparagraph 2.01(d).
"Notice of Interest Period Selection" shall have the meaning
given to that term in Subparagraph 2.01(e).
"Obligations" shall mean and include, with respect to
Borrower, all loans, advances, debts, liabilities, and obligations,
howsoever arising, owed by Borrower to Agent or any Bank of every kind
and description (whether or not evidenced by any note or instrument and
whether or not for the payment of money), direct or indirect, absolute
or contingent, due or to become due, now existing or hereafter arising
pursuant to the terms of this Agreement or any of the other Credit
Documents, including without limitation all interest, fees, charges,
expenses, attorneys' fees and accountants' fees chargeable to Borrower
or payable by Borrower hereunder or thereunder.
"Origination Fees" shall have the meaning given to that term
in Subparagraph 2.04(b).
"Participant" shall have the meaning given to that term in
Subparagraph 8.05(b).
11
"Person" shall mean and include an individual, a partnership,
a corporation (including a business trust), a limited liability
company, a joint stock company, an unincorporated association, a joint
venture, a trust or other entity or a Governmental Authority.
"Pricing Grid" shall mean Schedule II.
"Pricing Period" shall mean (a) the period commencing on the
date of this Agreement and ending on February 28, 1999, and (b) each
consecutive four-calendar month period, two-calendar month period,
three-calendar month period or three-calendar month period (as
applicable) thereafter which commences on the day following the last
day of the immediately preceding four-calendar month period,
two-calendar month period, three-calendar month period or
three-calendar month period (as applicable) and ends on the last day of
that time period as follows:
(i) December 1st through February 28th or February
29th (as applicable);
(ii) March 1st through June 30th;
(iii) July 1st through August 31st; and
(iv) September 1st through November 30th.
"Prime Rate" shall mean the per annum rate publicly announced
by Agent from time to time at its head office. The Prime Rate is
determined by Agent from time to time as a means of pricing credit
extensions to some customers and is neither directly tied to any
external rate of interest or index nor necessarily the lowest rate of
interest charged by Agent at any given time for any particular class of
customers or credit extensions. Any change in the Base Rate resulting
from a change in the Prime Rate shall become effective on the Business
Day on which each change in the Prime Rate occurs.
"Prior Credit Agreement" shall mean that certain Credit
Agreement, dated as of February 2, 1998 between Borrower and Union Bank
of California, N.A.
"Proportionate Share" shall mean, with respect to each Bank,
the percentage set forth under the caption "Proportionate Share"
opposite such Bank's name on Schedule I, or, if changed, such
percentage as may be set forth for such Bank in the Register.
"Requirement of Law" applicable to any Person shall mean (a)
the Articles or Certificate of Incorporation and By-laws, Partnership
Agreement, Operating Agreement or other organizational or governing
documents of such Person, (b) any Governmental Rule binding upon such
Person, (c) any license, permit, approval or other authorization
granted by any Governmental Authority to or for the benefit of such
Person or (d) any final judgment, decision or determination of any
Governmental Authority or arbitrator, in each case applicable to or
binding upon such Person or any of its property or to which such Person
or any of its property is subject.
12
"Reserve Requirement" shall mean, with respect to any day in
an Interest Period for a LIBOR Loan, the aggregate of the reserve
requirement rates (expressed as a decimal) in effect on such day for
eurocurrency funding (currently referred to as "Eurocurrency
liabilities" in Regulation D of the Federal Reserve Board) maintained
by a member bank of the Federal Reserve System. As used herein, the
term "reserve requirement" shall include, without limitation, any
basic, supplemental or emergency reserve requirements imposed on any
Bank by any Governmental Authority.
"Revolving Loan" shall have the meaning given to that term in
Subparagraph 2.01(a).
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc., and any successor thereto that is a
nationally-recognized rating agency.
"Solvent" shall mean, with respect to any Person on any date,
that on such date (a) the fair value of the assets of such Person is
greater than the fair value of the liabilities (including, without
limitation, contingent liabilities) of such Person, as such value is
established and liabilities evaluated for purposes of Section 101(31)
of the Federal Bankruptcy Reform Act of 1978 (12 U.S.C. ss.101, et
seq.) and, in the alternative, the California Uniform Fraudulent
Transfer Act, (b) such Person does not intend to, and does not believe
that it will, incur debts or liabilities beyond such Person's ability
to pay as such debts and liabilities mature and (c) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital.
"Subsidiary" of any Person shall mean (a) any corporation of
which 50% or more of the issued and outstanding Equity Securities
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency) is
at the time directly or indirectly owned or controlled by such Person,
by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries or (b) any partnership, joint
venture, or other association of which 50% or more of the equity
interest having the power to vote, direct or control the management of
such partnership, joint venture or other association is at the time
owned and controlled by such Person, by such Person and one or more of
the other Subsidiaries or by one or more of such Person's other
Subsidiaries and in each case, only if such Person is included in the
Financial Statements of such Person on a consolidated basis.
"Synthetic Lease" shall mean an off-balance sheet financing
arrangement for equipment or real estate which is treated as an
operating lease under GAAP but pursuant to which the lessee of such
equipment or real estate has the benefits and burdens of ownership of
the leased equipment or real estate for U.S. tax purposes.
"Taxes" shall have the meaning given to such term in
Subparagraph 2.10(a).
13
"Total Commitment" shall have the meaning given to that term
in Subparagraph 2.01(a).
"Total Funded Debt Ratio" shall have the meaning given to that
term in the Guarantor Credit Agreement.
"Type" shall mean, with respect to any Revolving Loan or
Borrowing at any time, the classification of such Revolving Loan or
Borrowing by the type of interest rate it then bears, whether an
interest rate based on the Base Rate or the LIBO Rate.
"Unused Commitment" shall mean, at any time after this
Agreement is executed by Borrower, Agent and the Banks, the remainder
of (a) the Total Commitment at such time minus (b) the sum of the
aggregate principal amount of all Revolving Loans then outstanding.
"Wholly-Owned Subsidiary" shall mean any Subsidiary in which
(other than directors' qualifying or local ownership shares required by
law) 100% of the issued and outstanding Equity Securities or equity
interest (as applicable) having ordinary voting power to elect a
majority of the Board of Directors of such Subsidiary or direct or
control the management of such Subsidiary (as applicable) is at the
time owned and controlled by a Person, by such Person and one or more
of the other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Year 2000 Problem" shall mean the risk that computer
applications used by Borrower and its Subsidiaries or Guarantor and its
Subsidiaries may be unable to properly recognize and perform
date-sensitive functions involving certain dates on or after December
31, 1999.
1.02. GAAP. Unless otherwise indicated in this Agreement or any other
Credit Document, all accounting terms used in this Agreement, the Guaranty or
any other Credit Document shall be construed, and all accounting and financial
computations hereunder or thereunder shall be computed, in accordance with GAAP.
If GAAP changes in any material respect during the term of this Agreement such
that any covenants contained herein would then be calculated in a different
manner or with different components, Borrower, Guarantor, the Banks and Agent
agree to negotiate in good faith to amend this Agreement and the Guaranty in
such respects as are necessary to conform those covenants as criteria for
evaluating Guarantor's financial condition to substantially the same criteria as
were effective prior to such change in GAAP; provided, however, that, until
Borrower, Guarantor, the Banks and Agent so amend this Agreement and the
Guaranty, all such covenants shall be calculated in accordance with GAAP as in
effect immediately prior to such change.
1.03. Headings. Headings in this Agreement and each of the other Credit
Documents are for convenience of reference only and are not part of the
substance hereof or thereof.
14
1.04. Plural Terms. All terms defined in this Agreement or any other
Credit Document in the singular form shall have comparable meanings when used in
the plural form and vice versa.
1.05. Time. All references in this Agreement and each of the other
Credit Documents to a time of day shall mean New York time unless otherwise
indicated.
1.06. Governing Law. This Agreement and each of the other Credit
Documents (unless otherwise provided in such other Credit Documents) shall be
governed by and construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
1.07. Construction. This Agreement is the result of negotiations among,
and has been reviewed by, Borrower, each Bank, Agent and their respective
counsel. Accordingly, this Agreement shall be deemed to be the product of all
parties hereto, and no ambiguity shall be construed in favor of or against
Borrower, any Bank or Agent.
1.08. Entire Agreement. This Agreement, the Agent's Fee Letter, the
Guaranty and each of the other Credit Documents, taken together, constitute and
contain the entire agreement of Borrower, Guarantor, the Banks and Agent and
supersede any and all prior agreements, negotiations, correspondence,
understandings and communications among the parties, whether written or oral,
respecting the subject matter hereof.
1.09. Calculation of Interest and Fees. All calculations of interest
and fees under this Agreement and the other Credit Documents for any period (a)
shall include the first day of such period and exclude the last day of such
period and (b) shall be calculated on the basis of a year of 360 days for actual
days elapsed, except that during any period any Revolving Loan bears interest
based upon the Base Rate, such interest shall be calculated on the basis of a
year of 365 or 366 days, as appropriate, for actual days elapsed.
1.10. Other Interpretive Provisions. References in this Agreement to
"Recitals," "Sections," "Paragraphs," "Subparagraphs," "Exhibits" and
"Schedules" are to recitals, sections, paragraphs, subparagraphs, exhibits and
schedules herein and hereto unless otherwise indicated. References in this
Agreement and each of the other Credit Documents to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued or
executed in replacement thereof and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time. The words
"hereof," "herein" and "hereunder" and words of similar import when used in this
Agreement or any other Credit Document shall refer to this Agreement or such
other Credit Document, as the case may be, as a whole and not to any particular
provision of this Agreement or such other Credit Document, as the case may be.
The words "include" and "including" and words of similar import when used in
this Agreement or any other Credit Document shall not be construed to be
limiting or exclusive. In the event of any inconsistency between the terms of
this Agreement and the terms of any other Credit Document, the terms of this
Agreement shall govern.
15
SECTION II. CREDIT FACILITIES.
2.01. Revolving Loan Facility.
(a) Revolving Loan Availability. Subject to the terms and
conditions of this Agreement (including the amount limitations set forth in
Paragraph 2.02), each Bank severally agrees to advance to Borrower from time to
time during the period beginning on the Closing Date and ending on June 6, 2000
(the "Maturity Date") such revolving loans as Borrower may request under this
Paragraph 2.01 (individually, a "Revolving Loan"); provided, however, that (i)
the aggregate principal amount of all Revolving Loans made by such Bank at any
time outstanding shall not exceed such Bank's Commitment at such time and (ii)
the aggregate principal amount of all Revolving Loans made by all Banks at any
time outstanding shall not exceed Thirty Five Million Dollars ($35,000,000)
(such amount, as reduced from time to time pursuant to this Agreement, to be
referred to herein as the "Total Commitment"). All Revolving Loans shall be made
on a pro rata basis by the Banks in accordance with their respective
Proportionate Shares, with each Borrowing to be comprised of a Revolving Loan by
each Bank equal to such Bank's Proportionate Share of such Borrowing. Except as
otherwise provided herein, Borrower may borrow, repay and reborrow Revolving
Loans until the Maturity Date.
(b) Notice of Borrowing. Borrower shall request each Borrowing
by delivering to Agent an irrevocable written notice in the form of Exhibit A,
appropriately completed (a "Notice of Borrowing"), which specifies, among other
things:
(i) The principal amount of the requested Borrowing,
which shall be in the amount of (A) $500,000 or an integral multiple of
$100,000 in excess thereof;
(ii) Whether the requested Borrowing is to consist of
Base Rate Loans or LIBOR Loans;
(iii) If the requested Borrowing is to consist of
LIBOR Loans, the initial Interest Period selected by Borrower for such
LIBOR Loans in accordance with Subparagraph 2.01(e); and
(iv) The date of the requested Borrowing, which shall
be a Business Day.
Borrower shall give each Notice of Borrowing to Agent at least three
(3) Business Days before the date of the requested Borrowing in the
case of a Borrowing consisting of LIBOR Loans and by 12:00 P.M. on the
day of the requested Borrowing in the case of a Borrowing consisting of
Base Rate Loans. Each Notice of Borrowing shall be delivered by
first-class mail or facsimile to Agent at the office or facsimile
number and during the hours specified in Paragraph 8.01; provided,
however, that Borrower shall promptly deliver to Agent the original of
any Notice of Borrowing initially delivered by facsimile. Agent shall
promptly notify each Bank of the contents of each Notice of Borrowing
and of the amount and Type of (and, if applicable, the Interest Period
for) each Revolving Loan to be made by such Bank as part of the
requested Borrowing.
16
(c) Interest Rates. Borrower shall pay interest on the unpaid
principal amount of each Revolving Loan from the date of such Revolving Loan
until the maturity thereof, at one of the following rates per annum:
(i) During such periods as such Revolving Loan is a
Base Rate Loan, at a rate per annum equal to the Base Rate, such rate
to change from time to time as the Base Rate shall change; and
(ii) During such periods as such Revolving Loan is a
LIBOR Loan, at a rate per annum equal at all times during each Interest
Period for such LIBOR Loan to the LIBO Rate for such Interest Period
plus the Applicable Margin therefor, such rate to change from time to
time during such Interest Period as the Applicable Margin shall change;
Provided, however, that all Revolving Loans outstanding during the
period commencing on the Closing Date and ending three (3) Business
Days after the Closing Date shall be Base Rate Loans. All Revolving
Loans in each Borrowing shall, at any given time prior to maturity,
bear interest at one, and only one, of the above rates. The number of
Borrowings consisting of LIBOR Loans shall not exceed five (5) at any
time.
(d) Conversion of Revolving Loans. Borrower may convert any
Borrowing from one Type of Borrowing to the other Type. Borrower shall request
such a conversion by an irrevocable written notice to Agent in the form of
Exhibit B, appropriately completed (a "Notice of Conversion"), which specifies,
among other things:
(i) The Borrowing which is to be converted;
(ii) The Type of Revolving Loans into which such
Revolving Loans are to be converted;
(iii) If such Borrowing is to be converted into a
Borrowing consisting of LIBOR Loans, the initial Interest Period
selected by Borrower for such Revolving Loans in accordance with
Subparagraph 2.01(e); and
(iv) The date of the requested conversion, which
shall be a Business Day.
Borrower shall give each Notice of Conversion to Agent at least three
(3) Business Days before the date of the requested conversion in the
case of a conversion into a Revolving Loan consisting of LIBOR Loans.
If Borrower fails to give such Notice of Conversion at least three (3)
Business Days before the date of the requested conversion, such
Revolving Loan shall automatically convert into a Revolving Loan
consisting of Base Rate Loans. Each Notice of Conversion shall be
delivered by first-class mail or facsimile to Agent at the office or to
the facsimile number and during the hours specified in Paragraph 8.01;
provided, however, that Borrower shall promptly deliver to Agent the
original of any Notice of Conversion initially delivered by facsimile.
Agent shall promptly notify each Bank of the contents of each Notice of
Conversion.
17
(e) LIBOR Loan Interest Periods.
(i) The initial and each subsequent Interest Period
selected by Borrower for a LIBOR Loan shall be one (1), three (3) or
six (6) months as Borrower may specify; provided, however, that (A) any
Interest Period which would otherwise end on a day which is not a
Business Day shall be extended to the next succeeding Business Day
unless such next Business Day falls in another calendar month, in which
case such Interest Period shall end on the immediately preceding
Business Day; (B) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month; and (C)
no Interest Period shall end after the Maturity Date.
(ii) Borrower shall notify Agent by an irrevocable
written notice in the form of Exhibit C, appropriately completed (a
"Notice of Interest Period Selection"), at least three (3) Business
Days prior to the last day of each Interest Period for LIBOR Loans of
the Interest Period selected by Borrower for the next succeeding
Interest Period for such Revolving Loans. Each Notice of Interest
Period Selection shall be given by first-class mail or facsimile to the
office or the facsimile number and during the hours specified in
Paragraph 8.01; provided, however, that Borrower shall promptly deliver
to Agent the original of any Notice of Interest Period Selection
initially delivered by facsimile. If Borrower fails to notify Agent of
the next Interest Period for LIBOR Loans in accordance with this
Subparagraph 2.01(e), such LIBOR Loans shall automatically convert to
Base Rate Loans on the last day of the current Interest Period
therefor.
(f) Scheduled Revolving Loan Payments. Borrower shall repay
the unpaid principal amount of all Revolving Loans on the Maturity Date.
Borrower shall pay accrued interest on the unpaid principal amount of the
Revolving Loans in arrears (i) in the case of Base Rate Loans, on the last
Business Day in each calendar quarter; (ii) in the case of LIBOR Loans, on the
last day of each Interest Period therefor (and, if any such Interest Period is
longer than three (3) months, every three (3) months after the first day of such
Interest Period); and (iii) in the case of all Revolving Loans, at maturity.
(g) Purpose. Borrower shall use the proceeds of the Revolving
Loans (i) to refinance the loans outstanding under the Prior Credit Agreement on
the Closing Date and (ii) to finance Borrower's working capital and general
corporate needs.
2.02. Amount Limitations, Commitment Reductions, Etc.
(a) Total Commitments. The sum of the aggregate principal
amount of all Revolving Loans outstanding at any time shall not exceed the Total
Commitment at such time.
(b) Optional Reduction or Cancellation of Commitments.
Borrower may, upon three (3) Business Days written notice to Agent, permanently
reduce the Total Commitment by the amount of $100,000 or integral multiples of
$50,000 in excess thereof or cancel the Total Commitment in its entirety;
provided, however, that:
18
(i) Borrower may not reduce the Total Commitment if,
after giving effect to such reduction, the aggregate principal amount
of all Revolving Loans then outstanding would exceed the Total
Commitment as so reduced; and
(ii) Borrower may not cancel the Total Commitment
prior to the Maturity Date if, after giving effect to such
cancellation, any Revolving Loan would remain outstanding.
(c) Effect of Commitment Reductions. From the effective date
of any reduction of the Total Commitment, the Commitment Fees payable pursuant
to Subparagraph 2.03(c) shall be computed on the basis of the Total Commitment
as so reduced. Any reduction of the Total Commitment pursuant to this Paragraph
2.02 shall be applied ratably to reduce each Bank's Commitment in accordance
with clause (i) of Subparagraph 2.08(a).
2.03. Fees.
(a) Agent's Fees. Borrower shall pay to Agent, for its own
accounts, the fees in the amounts and at the times set forth in the Agent's Fee
Letter.
(b) Origination Fee. Borrower shall pay to Agent, for the
ratable benefit of the Banks, nonrefundable origination fees (the "Origination
Fees") in an amount equal to one-half of one percent (.50%) of each Bank's
Commitment on the Closing Date.
(c) Commitment Fees. Borrower shall pay to Agent, for the
ratable benefit of the Banks as provided in clause (iv) of Subparagraph 2.08(a),
nonrefundable commitment fees (the "Commitment Fees") equal to the Commitment
Fee Percentage on the daily average Unused Commitment for the period beginning
on the date of this Agreement and ending on the Maturity Date. The Commitment
Fee Percentage shall be determined as provided in the Pricing Grid and may
change for each Pricing Period. Borrower shall pay the Commitment Fees quarterly
in arrears on the last day in each calendar quarter (commencing December 31,
1998) and on the Maturity Date (or if the Total Commitment is cancelled on a
date prior to the Maturity Date, on such prior date).
2.04. Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any
Revolving Loan (whether such prepayment is an optional prepayment under
Subparagraph 2.04(b), a mandatory prepayment required by Subparagraph 2.04(c) or
a mandatory prepayment required by any other provision of this Agreement or the
other Credit Documents, including, without limitation, a prepayment upon
acceleration), Borrower shall pay to the Agent for the benefit of the Bank which
made such Revolving Loan (i) if such prepayment is the prepayment of a LIBOR
Loan, all accrued interest to the date of such prepayment on the amount prepaid
and (ii) if such prepayment is the prepayment of a LIBOR Loan on a day other
than the last day of an Interest Period for such Revolving Loan, all amounts
payable to such Party pursuant to Paragraph 2.11.
(b) Optional Prepayments. At its option, Borrower may, upon
three (3) Business Days notice to Agent for LIBOR Loans and one (1) Business Day
notice to Agent for
19
Base Rate Loans, prepay any Borrowing in part, in an aggregate principal amount
of $100,000 or more, or in whole.
(c) Mandatory Prepayments. If, at any time, the aggregate
principal amount of all Revolving Loans then outstanding exceeds the Total
Commitment at such time, Borrower shall immediately prepay Revolving Loans in an
aggregate principal amount equal to such excess.
(d) Application of Revolving Loan Prepayments. All prepayments
of the Revolving Loans shall, to the extent possible, be first applied to prepay
Base Rate Loans and then, if any funds remain, to prepay LIBOR Loans.
2.05. Other Payment Terms.
(a) Place and Manner. Except as otherwise expressly provided
herein, Borrower shall make all payments due to each Bank hereunder by payments
to Agent, for the account of such Bank and such Bank's Applicable Lending
Office, at Agent's office, located at the address specified in Paragraph 8.01,
in lawful money of the United States and in same day or immediately available
funds not later than 11:00 A.M. on the date due. Agent shall promptly disburse
to each Bank each such payment received by Agent for such Bank.
(b) Date. Whenever any payment due hereunder shall fall due on
a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included in the
computation of interest or fees, as the case may be.
(c) Late Payments. If any amounts required to be paid by
Borrower under this Agreement or the other Credit Documents (including, without
limitation, principal or interest payable on any Revolving Loan or interest
thereon, any fees or other amounts) remain unpaid after such amounts are due,
Borrower shall pay interest on the aggregate, outstanding balance of such
amounts from the date due until those amounts are paid in full at a per annum
rate equal to the Base Rate plus two percent (2.00%), such rate to change from
time to time as the Base Rate shall change.
(d) Application of Payments. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then past due under this
Agreement or the other Credit Documents, second to accrued interest then due and
payable under this Agreement or the other Credit Documents and finally to reduce
the principal amount of outstanding Revolving Loans.
(e) Failure to Pay Agent. Unless Agent shall have received
notice from Borrower prior to the date on which any payment is due to any Bank
hereunder that Borrower will not make such payment in full, Agent may assume
that Borrower has made such payment in full to Agent on such date and Agent may,
in reliance upon such assumption, cause to be distributed to the appropriate
Banks on such due date an amount equal to the amount then due such Banks. If and
to the extent Borrower shall not have so made such payment in full to Agent,
each such Bank shall repay to Agent forthwith on demand such amount distributed
to such Bank together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to Agent, at (i) the Federal Funds Rate for the first
20
three (3) days and (ii) the Base Rate thereafter. A certificate of Agent
submitted to any Party with respect to any amounts owing by such Bank under this
Subparagraph 2.05(e) shall be conclusive absent manifest error.
2.06. Notes and Interest Account.
(a) Notes. The obligation of Borrower to repay the Revolving
Loans made by each Bank and to pay interest thereon at the rates provided herein
shall be evidenced by a promissory note in the form of Exhibit D (individually,
a "Note") which note shall be (i) payable to the order of such Bank, (ii) in the
amount of such Bank's Commitment, (iii) dated the Closing Date and (iv)
otherwise appropriately completed. Borrower authorizes each Bank to record on
the schedule annexed to such Bank's Note the date and amount of each Revolving
Loan made by such Bank and of each payment or prepayment of principal thereon
made by Borrower, and agrees that all such notations shall constitute prima
facie evidence of the matters noted. Borrower further authorizes each Bank to
attach to and make a part of such Bank's Note continuations of the schedule
attached thereto as necessary.
(b) Interest Account. Borrower authorizes Agent to record in
an account or accounts maintained by Agent on its books (the "Interest Account")
(i) the interest rates applicable to all Revolving Loans and the effective dates
of all changes thereto, (ii) the Interest Period for each LIBOR Loan, (iii) the
date and amount of each principal and interest payment on each Revolving Loan
and (iv) such other information as Agent may determine is necessary for the
computation of interest payable by Borrower hereunder.
2.07. Revolving Loan Funding, Etc.
(a) Bank Funding and Disbursement to Borrower. Each Bank
shall, before 12:00 P.M. on the date of each Borrowing, make available to Agent
at its office specified in Paragraph 8.01, in same day or immediately available
funds, such Bank's pro rata share of such Borrowing. After Agent's receipt of
such funds and upon fulfillment of the applicable conditions set forth in
Section III, Agent will promptly disburse such funds in same day or immediately
available funds to Borrower. Unless otherwise directed by Borrower, Agent shall
disburse the proceeds of each Borrowing to Borrower by disbursement to the
account or accounts specified in the applicable Notice of Borrowing.
(b) Bank Failure to Fund. Unless Agent shall have received
notice from a Bank prior to the date of any Borrowing that such Bank will not
make available to Agent such Bank's pro rata share of such Borrowing, Agent may
assume that such Bank has made such portion available to Agent on the date of
such Borrowing in accordance with Subparagraph 2.07(a), and Agent may, in
reliance upon such assumption, make available to Borrower (or otherwise
disburse) on such date a corresponding amount. If any Bank does not make the
amount of its pro rata share of any Borrowing available to Agent on or prior to
the date of such Borrowing, such Bank shall pay to Agent, on demand, interest
which shall accrue on such amount until made available to Agent at rates equal
to (i) the daily Federal Funds Rate during the period from the date of such
Borrowing through the third Business Day thereafter and (ii) the Base Rate
thereafter. A certificate of Agent submitted to any Bank with respect to any
amounts
21
owing under this Subparagraph 2.07(b) shall be conclusive absent manifest error.
If any Bank's pro rata share of any Borrowing is not in fact made available to
Agent by such Bank within three (3) Business Days after the date of such
Borrowing, Borrower shall pay to Agent, on demand, an amount equal to such pro
rata share together with interest thereon, for each day from the date such
amount was made available to Borrower until the date such amount is repaid to
Agent, at the interest rate applicable at the time to the Revolving Loans
comprising such Borrowing.
(c) Banks' Obligations Several. The failure of any Bank to
make the Revolving Loan to be made by it as part of any Borrowing shall not
relieve any other Bank of its obligation hereunder to make its Revolving Loan on
the date of such Borrowing, but no Bank shall be responsible for the failure of
any other Bank to make the Revolving Loan to be made by such other Bank on the
date of any Borrowing.
2.08. Pro Rata Treatment.
(a) Borrowings, Commitment Reductions, Etc. Except as
otherwise provided herein:
(i) Each Borrowing and each reduction of the Total
Commitment shall be made by or shared among the Banks pro rata
according to their respective Proportionate Shares;
(ii) Each payment of principal of Revolving Loans in
any Borrowing shall be shared among the Banks which made or funded the
Revolving Loans in such Borrowing pro rata according to the respective
unpaid principal amounts of such Revolving Loans so made or funded by
such Banks;
(iii) Each payment of interest on Revolving Loans in
any Borrowing shall be shared among the Banks which made or funded the
Revolving Loans in such Borrowing pro rata according to (A) the
respective unpaid principal amounts of such Revolving Loans so made or
funded by such Banks and (B) the dates on which such Banks so made or
funded such Revolving Loans or is deemed to have made or funded such
Revolving Loans to the extent such Bank otherwise paid interest to
Agent on such Revolving Loans in accordance with Subparagraph 2.07(b);
(iv) Each payment of Commitment Fees shall be shared
among the Banks pro rata according to (A) their respective
Proportionate Share and (B) in the case of each Bank which becomes a
Bank hereunder after the date hereof, the date upon which such Bank so
became a Bank;
(v) Each payment of interest (other than interest on
Revolving Loans) shall be shared among the Banks and Agent owed the
amount upon which such interest accrues pro rata according to (A) the
respective amounts so owed such Banks and (B) the dates on which such
amounts became owing to such Banks; and
(vi) All other payments under this Agreement and the
other Credit Documents shall be for the benefit of the Person or
Persons specified.
22
(b) Sharing of Payments, Etc. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of Revolving Loans owed to it in excess of its
ratable share of payments on account of such Revolving Loans obtained by all
Banks entitled to such payments, such Bank shall forthwith purchase from the
other Banks entitled to such payments such participations in the Revolving Loans
as shall be necessary to cause such purchasing Bank to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Bank, such purchase
shall be rescinded and each other Bank shall repay to the purchasing Bank the
purchase price to the extent of such recovery together with an amount equal to
such other Bank's ratable share (according to the proportion of (i) the amount
of such other Bank's required repayment to (ii) the total amount so recovered
from the purchasing Bank) of any interest or other amount paid or payable by the
purchasing Bank in respect of the total amount so recovered. Borrower agrees
that any Bank so purchasing a participation from another Bank pursuant to this
Subparagraph 2.08(b) may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of setoff, but only as provided in
Paragraph 8.06) with respect to such participation as fully as if such Bank were
the direct creditor of Borrower in the amount of such participation.
2.09. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first
day of any Interest Period for any LIBOR Loan, Agent shall determine that (i)
the LIBO Rate for such Interest Period cannot be adequately and reasonably
determined due to the unavailability of funds in or other circumstances
affecting the London interbank market or (ii) the rates of interest for such
LIBOR Loans do not adequately and fairly reflect the cost to the Banks of making
or maintaining such LIBOR Loans, Agent shall immediately give notice of such
condition to Borrower and the Banks. After the giving of any such notice and
until Agent shall otherwise notify Borrower that the circumstances giving rise
to such condition no longer exist, Borrower's right to request the making of or
conversion to, and the Banks' obligations to make or convert to LIBOR Loans
shall be suspended. Any LIBOR Loans outstanding at the commencement of any such
suspension shall, unless fully repaid, be converted at the end of the then
current Interest Period for such LIBOR Loans into Base Rate Loans unless such
suspension has then ended.
(b) Illegality. If, after the date of this Agreement, the
adoption of any Governmental Rule, any change in any Governmental Rule or the
application or requirements thereof (whether such change occurs in accordance
with the terms of such Governmental Rule as enacted, as a result of amendment or
otherwise), any change in the interpretation or administration of any
Governmental Rule by any Governmental Authority, or compliance by any Bank with
any request or directive (whether or not having the force of law) of any
Governmental Authority (a "Change of Law") shall make it unlawful or impossible
for any Bank to make or maintain any LIBOR Loan, such Bank shall immediately
notify Agent and Borrower of such Change of Law. Upon receipt of such notice,
(i) Borrower's right to request the making of or conversion to, and such Bank's
obligation to make or convert to, LIBOR Loans shall be terminated, and (ii)
Borrower shall, at the request of such Bank, either (A) pursuant to Subparagraph
2.01(d), convert any such then outstanding LIBOR Loans of such Bank into Base
Rate Loans at the end of the current Interest Period for such LIBOR Loans, or
(B) immediately
23
repay or convert any such LIBOR Loans if such Bank shall notify Borrower that
such Bank may not lawfully continue to fund and maintain such LIBOR Loans. Any
conversion or prepayment of LIBOR Loans made pursuant to the preceding sentence
prior to the last day of an Interest Period for such LIBOR Loans shall be deemed
a prepayment thereof for purposes of Paragraph 2.11. After any Bank notifies
Agent and Borrower of such a Change of Law and until such Bank notifies Agent
and Borrower that it is no longer unlawful or impossible for such Bank to make
or maintain any LIBOR Loan, all Revolving Loans of such Bank shall be Base Rate
Loans.
(c) Increased Costs. If, after the date of this Agreement, any
Change of Law:
(i) Shall subject any Bank to any tax, duty or other
charge with respect to any LIBOR Loan, or shall change the basis of
taxation of payments by Borrower to any Bank on such a LIBOR Loan or in
respect to such a LIBOR Loan under this Agreement (except for changes
in the rate of taxation on the overall net income of any Bank imposed
by its jurisdiction of incorporation or the jurisdiction in which such
Bank maintains a lending office); or
(ii) Shall impose, modify or hold applicable any
reserve (excluding any Reserve Requirement or other reserve to the
extent included in the calculation of the LIBO Rate for any LIBOR
Loans), special deposit or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances or
loans by, or any other acquisition of funds by any Bank for any LIBOR
Loan; or
(iii) Shall impose on any Bank any other condition
related to any LIBOR Loan or such Bank's Commitments;
and the effect of any of the foregoing is to increase the cost to such Bank of
making, renewing, or maintaining any such LIBOR Loan or such Bank's Commitments
or to reduce any amount receivable by such Bank hereunder, then Borrower shall
from time to time, within five (5) days after demand by such Bank (which demand
shall be accompanied by a statement setting forth in reasonable detail the basis
for the calculation of the amount demanded), pay to such Bank additional amounts
sufficient to reimburse such Bank for such increased costs or to compensate such
Bank for such reduced amounts; provided, however, that Borrower shall not be
obligated to pay any Bank for any such increased costs or reduced amounts
incurred more than sixty (60) days prior to the date of such Bank's demand for
payment if such demand was made more than sixty (60) days after the latest of
(A) the date such Bank received actual notice of such increased cost or reduced
amount, (B) the effective date of such Change in Law, or (C) the date such
Change in Law occurred or was enacted. A certificate as to the amount of such
increased costs or reduced amounts submitted by such Bank to Borrower shall
constitute prima facie evidence of such increased costs or reduced amounts. The
obligations of Borrower under this Subparagraph 2.09(c) shall survive the
payment and performance of the Obligations and the termination of this
Agreement.
(d) Capital Requirements. If, after the date of this
Agreement, any Bank determines that (i) any Change of Law affects the amount of
capital required or expected to be maintained by such Bank or any Person
controlling such Bank (a "Capital Adequacy
24
Requirement") and (ii) the amount of capital maintained by such Bank or such
Person which is reasonably attributable to or based upon the Revolving Loans,
the Commitments or this Agreement must be increased as a result of such Capital
Adequacy Requirement (taking into account such Bank's or such Person's policies
with respect to capital adequacy), Borrower shall pay to such Bank or such
Person, within five (5) days after demand of such Bank (which demand shall be
accompanied by a statement setting forth in reasonable detail the basis for the
calculation of the amount demanded), such amounts as such Bank or such Person
shall reasonably determine are necessary to compensate such Bank or such Person
for the increased costs to such Bank or such Person of such increased capital. A
certificate of any Bank setting forth in reasonable detail the computation of
any such increased costs delivered by such Bank to Borrower shall constitute
prima facie evidence of such increased costs. The obligations of Borrower under
this Subparagraph 2.09(d) shall survive the payment and performance of the
Obligations and the termination of this Agreement.
(e) Mitigation. As promptly as practical after any Bank
becomes aware of (i) any Change of Law which will make it unlawful or impossible
for such Bank to make or maintain any LIBOR Loan or (ii) any obligation by
Borrower to pay any amount pursuant to Subparagraph 2.09(c) or Subparagraph
2.09(d), such Bank shall notify Borrower and Agent (and, if any Bank has given
notice of any such event described in clause (i) or (ii) above and thereafter
such event ceases to exist, such Bank shall promptly so notify Borrower and
Agent). Each Bank affected by any Change of Law which makes it unlawful or
impossible for such Bank to make or maintain any LIBOR Loan or to which Borrower
is obligated to pay any amount pursuant to Subparagraph 2.09(c) or Subparagraph
2.09(d) shall use reasonable commercial efforts (including changing the
jurisdiction of its Applicable Lending Office) to avoid the effect of such
Change of Law or to avoid or materially reduce any amounts which Borrower is
obligated to pay pursuant to Subparagraph 2.09(c) or Subparagraph 2.09(d) if, in
the reasonable opinion of such Bank, such efforts would not be disadvantageous
to such Bank or contrary to such Bank's normal banking practices.
2.10. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Borrower
under this Agreement and the other Credit Documents shall be made free and clear
of, and without deduction or withholding for or on account of, any present or
future income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected,
withheld or assessed by any Governmental Authority (except (i) net income taxes
and franchise taxes in lieu of net income taxes imposed on Agent or any Bank by
its jurisdiction of incorporation or any jurisdiction in which it maintains a
lending office and (ii) withholding taxes required to be paid for Banks who do
not comply with Subparagraph 2.10(b) at the time they first become Banks
hereunder) (all such non-excluded taxes, levies, imposts, duties, charges, fees,
deductions and withholdings being hereinafter called "Taxes"). Subject to
Subparagraph 2.10(c), if any Taxes are required to be withheld from any amounts
payable to Agent or any Bank hereunder or under the other Credit Documents, the
amounts so payable to Agent or such Bank shall be increased to the extent
necessary to yield to Agent or such Bank (after payment of all Taxes) interest
or any such other amounts payable hereunder at the rates or in the amounts
specified in this Agreement and the other Credit Documents. Whenever
25
any Taxes are payable by Borrower, as promptly as possible thereafter, Borrower
shall send to Agent for its own account or for the account of such Bank, as the
case may be, a certified copy of an original official receipt received by
Borrower showing payment thereof. If Borrower fails to pay any Taxes when due to
the appropriate taxing authority or fails to remit to Agent the required
receipts or other required documentary evidence, Borrower shall indemnify Agent
and the Banks for any incremental taxes, interest or penalties that may become
payable by Agent or any Bank as a result of any such failure. The obligations of
Borrower under this Subparagraph 2.10(a) shall survive the payment and
performance of the Obligations and the termination of this Agreement.
(b) Withholding Exemption Certificates. On or prior to the
Closing Date, each Bank which is not incorporated under the laws of the United
States of America or a state thereof shall deliver to Borrower and Agent either
two duly completed copies of United States Internal Revenue Service Form 1001 or
4224 (or successor applicable form), as the case may be, certifying in each case
that such Bank is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal taxes. Each Bank which
delivers to Borrower and Agent a Form 1001 or 4224 pursuant to the immediately
preceding sentence further undertakes to deliver to Borrower and Agent two
further copies of Form 1001 or 4224, or successor applicable forms, or other
manner of certification or procedure, as the case may be, on or before the date
that any such letter or form expires or becomes obsolete or after the occurrence
of any event requiring a change in the most recent letter and form previously
delivered by it to Borrower and Agent, and such extensions or renewals thereof
as may reasonably be requested by Borrower or Agent, certifying in the case of a
Form 1001 or 4224 that such Bank is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal taxes,
unless in any such cases an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent a Bank from duly completing and delivering any such
letter or form with respect to it and such Bank advises Borrower and Agent that
it is not capable of receiving payments without any deduction or withholding of
United States federal income tax.
(c) Mitigation. Agent or any Bank claiming any additional
amounts payable pursuant to this Paragraph 2.10 shall use reasonable commercial
efforts to file any certificate or document requested in writing by Borrower
(including without limitation copies of Internal Revenue Service Form 1001, or
successor forms, reflecting a reduced rate of withholding) or to change the
jurisdiction of its Applicable Lending Office if the making of such a filing or
such change in the jurisdiction of its Applicable Lending Office would avoid the
need for or materially reduce the amount of any such additional amounts which
may thereafter accrue and if, in the reasonable opinion of Agent or such Bank in
the case of a change in the jurisdiction of its Applicable Lending Office, such
change would not be disadvantageous to Agent or such Bank or contrary to Agent's
or such Bank's normal banking practices.
(d) Tax Returns. Nothing contained in this Paragraph 2.10
shall require Agent or any Bank to make available any of its tax returns (or any
other information relating to its taxes which it deems to be confidential).
26
2.11. Funding Loss Indemnification. If Borrower shall (a) repay, prepay
or convert any LIBOR Loan on any day other than the last day of an Interest
Period therefor (whether a scheduled payment, an optional prepayment or
conversion, a mandatory prepayment or conversion, a payment upon acceleration or
otherwise), (b) fail to borrow any LIBOR Loan for which a Notice of Borrowing
has been delivered to Agent (whether as a result of the failure to satisfy any
applicable conditions or otherwise) or (c) fail to convert any Revolving Loans
into LIBOR Loans in accordance with a Notice of Conversion delivered to Agent
(whether as a result of the failure to satisfy any applicable conditions or
otherwise), Borrower shall, upon demand by any Bank, reimburse such Bank for and
hold such Bank harmless from all Funding Losses and all related incidental costs
and expenses (such as administrative costs and expenses) incurred by such Bank
as a result of such repayment, prepayment or failure. Each Bank demanding
payment under this Paragraph 2.11 shall deliver to Borrower, with a copy to
Agent, a certificate setting forth the amount of Funding Losses and related
incidental costs and expenses for which demand is made, which certificate shall
set forth in reasonable detail the calculation of the amount demanded. Such a
certificate so delivered to Borrower shall constitute prima facie evidence of
such Funding Losses and related incidental costs and expenses. The obligations
of Borrower under this Paragraph 2.11 shall survive the payment and performance
of the Obligations and the termination of this Agreement for a period of one
year from the date of termination.
2.12. Replacement of Banks. If any Bank shall (a) become a Defaulting
Bank more than two (2) times in a period of twelve (12) consecutive months, (b)
continue as a Defaulting Bank for more than five (5) Business Days at any time,
(c) suspend its obligation to make or maintain LIBOR Loans pursuant to
Subparagraph 2.09(b) for a reason which is not applicable to the Banks (or a
material number of the Banks) generally, or (d) demand any payment under
Subparagraph 2.09(c), 2.09(d) or 2.10(a) for a reason which is not applicable to
the Banks (or a material number of Banks) generally, then Agent may (or upon the
written request of Borrower, shall) replace such Bank (the "affected Bank"), or
cause such affected Bank to be replaced, with another bank (the "replacement
bank") satisfying the requirements of an Assignee Bank under Subparagraph
8.05(c), by having the affected Bank sell and assign all of its rights and
obligations under this Agreement and the other Credit Documents to the
replacement bank pursuant to Subparagraph 8.05(c); provided, however, that if
Borrower seeks to exercise such right, it must do so within one hundred twenty
(120) days after it first knows or should have known of the occurrence of the
event or events giving rise to such right, and neither Agent nor any Bank shall
have any obligation to identify or locate a replacement bank for Borrower. Upon
receipt by any affected Bank of a written notice from Agent stating that Agent
is exercising the replacement right set forth in this Paragraph 2.12, such
affected Bank shall sell and assign all of its rights and obligations under this
Agreement and the other Credit Documents to the replacement bank pursuant to an
Assignment Agreement and Subparagraph 8.05(c) for a purchase price equal to the
sum of the principal amount of the affected Bank's Revolving Loans so sold and
assigned, all accrued and unpaid interest thereon and its ratable share of all
fees to which it is entitled.
2.13. Guaranty.
(a) Guaranty. The Obligations shall be secured by a Guaranty
in the form of Exhibit E, duly executed by Guarantor (the "Guaranty").
27
(b) Further Assurances. Borrower shall deliver, and shall
cause Guarantor to deliver, to Agent such additional guaranties and other
instruments, agreements, certificates, opinions and documents as Agent may
reasonably request to establish, maintain, protect and evidence the rights
provided to Agent, for the benefit of Agent and the Banks, pursuant to the
Guaranty. Borrower shall fully cooperate, and shall cause Guarantor to fully
cooperate, with Agent and the Banks and perform all additional acts reasonably
requested by Agent or any Bank to effect the purposes of this Paragraph 2.13.
SECTION III. CONDITIONS PRECEDENT.
3.01. Initial Conditions Precedent. The obligations of the Banks to
make the Revolving Loans comprising the initial Borrowing are subject to receipt
by Agent, on or prior to the Closing Date, of each item listed in Schedule 3.01,
each in form and substance reasonably satisfactory to the Banks, and with
sufficient copies for, Agent and each Bank.
3.02. Conditions Precedent to Each Credit Event. The occurrence of each
Credit Event (including the initial Borrowing) is subject to the further
conditions that:
(a) Borrower shall have delivered to Agent the Notice of
Borrowing for such Credit Event in accordance with this Agreement;
(b) On the date such Credit Event is to occur and after giving
effect to such Credit Event, the following shall be true and correct:
(i) The representations and warranties of Borrower
and its Subsidiaries set forth in Paragraph 4.01 and the
representations and warranties of Borrower and its Subsidiaries and
Guarantor and its Subsidiaries set forth in the other Credit Documents
are true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date); and
(ii) No Default or Event of Default has occurred and
is continuing or will result from such Credit Event; and
(c) On the date such Credit Event is to occur and after giving
effect to such Credit Event, all of the Credit Documents are in full force and
effect.
The submission by Borrower to Agent of each Notice of Borrowing shall be deemed
to be a representation and warranty by Borrower as of the date thereon as to the
above.
3.03. Conditions Precedent to Each Conversion or Each Selection of
Interest Period. The occurrence of the conversion of any Base Rate Loan into a
LIBOR Loan or the selection of a new Interest Period for any LIBOR Loan is
subject to the further conditions that:
(a) Borrower shall have delivered to Agent the Notice of
Conversion or Notice of Interest Period Selection, as the case may be, for such
conversion or selection of an Interest Period in accordance with this Agreement;
28
(b) On the date such conversion or selection of an Interest
Period is to occur and after giving effect to such conversion or selection of an
Interest Period, no Default or Event of Default has occurred and is continuing
or will result from such conversion or selection of an Interest Period; and
(c) On the date such conversion or selection of an Interest
Period is to occur and after giving effect to such conversion or selection of an
Interest Period, all of the Credit Documents are in full force and effect.
The submission by Borrower to Agent of each Notice of Conversion and each Notice
of Interest Period Selection shall be deemed to be a representation and warranty
by Borrower as of the date thereon as to the above.
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Borrower's Representations and Warranties. In order to induce
Agent and the Banks to enter into this Agreement, Borrower hereby represents and
warranties to Agent and the Banks as follows:
(a) Due Incorporation, Qualification, etc. Each of Borrower
and Borrower's Subsidiaries (i) is a corporation duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation; (ii) has the power and authority to own, lease and operate its
properties and carry on its business as now conducted; and (iii) is duly
qualified, licensed to do business and in good standing as a foreign corporation
in each jurisdiction where the failure to be so qualified or licensed is
reasonably likely to have a Material Adverse Effect.
(b) Authority. The execution, delivery and performance by
Borrower of each Credit Document executed, or to be executed, by Borrower and
the consummation of the transactions contemplated thereby (i) are within the
corporate power of Borrower; and (ii) have been duly authorized by all necessary
corporate actions on the part of Borrower.
(c) Enforceability. Each Loan Document in the nature of an
agreement executed, or to be executed, by Borrower has been, or will be, duly
executed and delivered by Borrower and constitutes, or will constitute, a legal,
valid and binding obligation of Borrower, enforceable against Borrower in
accordance with its terms, except as limited by bankruptcy, insolvency or other
laws of general application relating to or affecting the enforcement of
creditors' rights generally and general principles of equity (regardless of
whether considered in a proceeding in equity or at law).
(d) Non-Contravention. The execution and delivery by Borrower
of the Loan Documents and the performance and consummation of the transactions
contemplated thereby do not (i) violate any Requirement of Law applicable to
Borrower; (ii) violate any provision of, or result in the breach or the
acceleration of, or entitle any other Person to accelerate (whether after the
giving of notice or lapse of time or both), any Contractual Obligations of
Borrower which could reasonably be expected to have a Material Adverse Effect;
or (iii) result in the creation or imposition of any Lien (or the obligation to
create or impose any Lien) upon any property, asset
29
or revenue of Borrower (except such Liens as may be created in favor of Agent
pursuant to this Agreement or the other Credit Documents).
(e) Approvals. No material consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person having jurisdiction over Borrower or any of Borrower's
Subsidiaries (including the shareholders of any Person) is required in
connection with the execution and delivery of the Loan Documents executed by
Borrower or the performance and consummation of the transactions contemplated
thereby except for consents, approvals, orders, authorizations, registrations,
declarations or filings required to be obtained or made in accordance with the
Loan Documents.
(f) No Violation or Default. Neither Borrower nor any of
Borrower's Subsidiaries is in violation of or in default with respect to (i) any
Requirement of Law applicable to such Person; or (ii) any Contractual Obligation
of such Person, where, in each case, such violation or default is reasonably
likely to have a Material Adverse Effect. No Event of Default or Default has
occurred and is continuing.
(g) Litigation. Except as set forth in the Borrower Disclosure
Letter, no actions (including, without limitation, derivative actions), suits,
proceedings or investigations are pending or, to the knowledge of Borrower,
threatened against Borrower or any of Borrower's Subsidiaries at law or in
equity in any court or before any other Governmental Authority having
jurisdiction over Borrower or any of Borrower's Subsidiaries which (i) is
reasonably likely (alone or in the aggregate) to have a Material Adverse Effect;
or (ii) seeks to enjoin, either directly or indirectly, the execution, delivery
or performance of the Loan Documents or the transactions contemplated thereby.
(h) No Agreements to Sell Assets; Etc. As of the Closing Date,
neither Borrower nor any of Borrower's Subsidiaries has any legal obligation,
absolute or contingent, to any Person to sell all or any material part of the
assets of Borrower or any of Borrower's Subsidiaries (other than any sale,
lease, transfer or other disposition permitted pursuant to Subparagraph 5.02(c)
of the Guarantor Credit Agreement), or to effect any merger, consolidation or
other reorganization of Borrower or any of Borrower's Subsidiaries or to enter
into any agreement with respect thereto.
(i) Margin Stock. Borrower owns no Margin Stock which, in the
aggregate, would constitute a substantial part of the assets of Borrower, and no
proceeds of any Revolving Loan will be used to purchase or carry, directly or
indirectly, any Margin Stock or to extend credit, directly or indirectly, to any
Person for the purpose of purchasing or carrying any Margin Stock.
(j) No Material Adverse Effect. No event has occurred and no
condition exists which could reasonably be expected to have a Material Adverse
Effect.
(k) Accuracy of Information Furnished. None of the Credit
Documents and none of the other certificates, statements or information
furnished to Agent or any Bank by or on behalf of Borrower or any of its
Subsidiaries in connection with the Credit Documents or the
30
transactions contemplated thereby (taken together with all such Credit
Documents, certificates, statements or information) contains or will contain any
untrue statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood by Agent and the
Banks that the projections and forecasts provided by Borrower are not to be
viewed as facts and that actual results during the period or periods covered by
such projections and forecasts may differ from the projected or forecasted
results).
(l) Year 2000 Compliance. Borrower and its Subsidiaries have
reviewed or are reviewing the areas within their business and operations which
reasonably could be expected to be adversely affected by, and have developed or
are developing a program to address on a timely and adequate basis, the Year
2000 Problem and intend to make appropriate inquiry of material suppliers and
vendors. Upon the completion of such ongoing review and development of such a
program, Borrower and its Subsidiaries believe that they will be able to timely
and adequately address the Year 2000 Problem such that it could not reasonably
be expected to have a Material Adverse Effect.
4.02. Reaffirmation. Borrower shall be deemed to have reaffirmed, for
the benefit of Agent and the Banks, each representation and warranty contained
in Paragraph 4.01 on and as of the date of each Credit Event (except for
representations and warranties expressly made as of a specified date, which
shall be true as of such date).
SECTION V. COVENANTS.
5.01. Affirmative Covenants. Until the termination of this Agreement
and the satisfaction in full by Borrower of all Obligations (other than inchoate
indemnity obligations of Borrower), Borrower will comply, and will cause
compliance, with the following affirmative covenants, unless Majority Banks
shall otherwise consent in writing:
(a) Financial Statements, Reports, etc.
(i) Borrower shall furnish to Agent (and Agent shall
promptly thereupon furnish to each Bank) each of the items Guarantor is
required to furnish pursuant to Subparagraph 5.01(a) of the Guarantor
Credit Agreement on or before the time each such item is required to be
furnished.
(ii) To the extent such materials are prepared in
connection with the preparation of the Financial Statements of
Guarantor that Borrower is required to deliver pursuant to clause (i)
above, Borrower shall furnish to Agent (and Agent shall promptly
thereupon furnish to each Bank), as soon as available, a copy of the
internally prepared unaudited Financial Statements of Borrower for such
quarter of year (as applicable).
(b) Books and Records. Borrower and its Subsidiaries shall at
all times keep proper books of record and account in accordance with good
business practices and GAAP.
(c) Inspections. Borrower and its Subsidiaries shall permit
personnel of Agent to visit and inspect any of the properties and offices of
Borrower and its Subsidiaries in
31
accordance with Subparagraph 5.01(c) of the Guarantor Credit Agreement;
provided, however, that (a) all references to "Borrower" therein shall be deemed
to be references to Borrower, (b) all references to "Subsidiaries" therein shall
be deemed to be references to Subsidiaries of Borrower and (c) all references to
"Administrative Agent" therein shall be deemed to be references to Agent.
(d) Insurance. Borrower and its Subsidiaries shall:
(i) Carry and maintain insurance of the types and in
the amounts customarily carried from time to time during the term of
this Agreement by others engaged in substantially the same business as
such Person and operating in the same geographic area as such Person,
including, but not limited to, fire, public liability, property damage
and worker's compensation; and
(ii) Deliver to Agent from time to time, as Agent may
request, schedules setting forth all insurance then in effect.
(iii) Notwithstanding clauses (i) and (ii) above,
Borrower and any of its Subsidiaries, or Guarantor on behalf of
Borrower and any of its Subsidiaries, may self-insure in lieu of
maintaining all or a portion of the insurance required to be maintained
pursuant to this Subsection 5.01(d) to the extent determined by
Borrower's and/or Guarantor's Board of Directors to be appropriate and
in the best interests of Borrower and its Subsidiaries taken as a
whole.
(e) Governmental Charges. Borrower and its Subsidiaries, or
Guarantor on behalf of Borrower and any of its Subsidiaries, shall promptly pay
and discharge when due all taxes and other Governmental Charges prior to the
date upon which penalties accrue thereon which, if unpaid, are reasonably likely
to have a Material Adverse Effect, except such taxes and other Governmental
Charges as may in good faith be contested or disputed, or for which arrangements
for deferred payment have been made, provided that in each such case appropriate
reserves are maintained in accordance with GAAP.
(f) Use of Proceeds. Borrower shall use the proceeds of the
Revolving Loans only for the purposes set forth in Subparagraph 2.01(g).
Borrower shall not use any part of the proceeds of any Revolving Loan or any
Letter of Credit, directly or indirectly, for the purpose of purchasing or
carrying any Margin Stock or for the purpose of purchasing or carrying or
trading in any securities under such circumstances as to involve Borrower, any
Bank or any Agent in a violation of Regulations T, U or X issued by the Federal
Reserve Board.
(g) General Business Operations. Each of Borrower and its
Subsidiaries shall (i) subject to Subparagraph 5.02(c) and 5.02(d) of the
Guarantor Credit Agreement, preserve and maintain its corporate existence and
all of its material rights, privileges and franchises reasonably necessary to
the conduct of its business, (ii) conduct its business activities in compliance
with all Requirements of Law and Contractual Obligations applicable to such
Person, the violation of which is reasonably likely to have a Material Adverse
Effect, (iii) keep all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted in
32
accordance with prudent business practices, and (iv) pay and perform all
Contractual Obligations as and when due (except to the extent disputed in good
faith by Guarantor, Borrower or the appropriate Subsidiary and where non-payment
would not be reasonably expected to have a Material Adverse Effect). Borrower
shall maintain its chief executive office and principal place of business in the
United States and shall not relocate its chief executive office or principal
place of business outside of California without providing Agent with prior
written notice.
5.02. Negative Covenants. Until the termination of this Agreement and
the satisfaction in full by Borrower of all Obligations (other than inchoate
indemnity obligations of Borrower), Borrower will comply, and will cause
compliance, with the following negative covenants, unless Majority Banks shall
otherwise consent in writing:
(a) Indebtedness. Neither Borrower nor any of its Subsidiaries
shall create, incur, assume or permit to exist any Indebtedness or any Guaranty
Obligations, except for Borrower Permitted Indebtedness.
(b) Change in Business. Neither Borrower nor any of its
Subsidiaries shall engage, either directly or indirectly through Affiliates, in
any line of business other than the digital storage business, any other business
incidental or reasonably related thereto, or any businesses that are, as
determined by the Board of Directors of Borrower, appropriate extensions
thereof.
SECTION VI. DEFAULT.
6.01. Events of Default. The occurrence or existence of any one or more
of the following shall constitute an "Event of Default" hereunder:
(a) Borrower or Guarantor on behalf of Borrower (i) shall fail
to pay when due any principal payment on the Revolving Loans, (ii) shall fail to
pay within three (3) Business Days when due any interest, or (iii) shall fail to
pay when due any other payment required under the terms of this Agreement or any
of the other Loan Documents and such failure shall continue for five (5)
Business Days after notice thereof has been given to Borrower by Agent; or
(b) Borrower or any of its Subsidiaries or Guarantor or any of
its Subsidiaries shall fail to observe or perform any covenant, obligation,
condition or agreement set forth in Paragraph 5.02 of this Agreement or
Subparagraph 4.2 of the Guaranty; or
(c) Borrower or any of its Subsidiaries or Guarantor or any of
its Subsidiaries shall fail to observe or perform any other covenant,
obligation, condition or agreement contained in this Agreement or the other Loan
Documents and such failure shall continue for twenty (20) Business Days after
the earlier of the date that an Executive Officer of Borrower first obtains
knowledge or notice of such failure or the date Agent gives Borrower notice of
such failure; or
(d) Any written representation or warranty by Borrower or
Guarantor made or deemed made herein or in any Loan Document shall prove to have
been false, incorrect or inaccurate in any material respect on or as of the date
made or deemed made; or
33
(e) Borrower or any of Borrower's Material Subsidiaries
(except with respect to clauses (iv) and (v) below) shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator or custodian of
itself or of all or a substantial part of its property, (ii) be unable, or admit
in writing its inability, to pay its debts generally as they mature, (iii) make
a general assignment for the benefit of its or any of its creditors, (iv) be
dissolved or liquidated in full or in part, (v) no longer be Solvent, (vi)
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
consent to any such relief or to the appointment of or taking possession of its
property by any official in an involuntary case or other proceeding commenced
against it, or (vii) take any action for the purpose of effecting any of the
foregoing; or
(f) Proceedings for the appointment of a receiver, trustee,
liquidator or custodian of Borrower or any of Borrower's Material Subsidiaries
or of all or a substantial part of the property thereof, or an involuntary case
or other proceedings seeking liquidation, reorganization or other relief with
respect to Borrower or any of Borrower's Material Subsidiaries, or the debts
thereof under any bankruptcy, insolvency or other similar law now or hereafter
in effect shall be commenced and an order for relief entered or such proceeding
shall not be dismissed or discharged within sixty (60) days of commencement; or
(g) Any Credit Document or any material term thereof shall
cease to be, or be asserted by Borrower or Guarantor not to be, a legal, valid
and binding obligation of Borrower or Guarantor enforceable in accordance with
its terms, the effect of which is or could reasonably be expected to be to
interfere with, hinder or impair in any material respect the practical or
effective realization of the rights, benefits or remedies of Agent or the Banks
under any Credit Documents taken as a whole; or
(h) A Guarantor Credit Agreement Event of Default shall have
occurred and be continuing; or
(i) Any Change of Control shall occur.
(Any of the events or conditions set forth in Subparagraphs 6.01(a)-(i), prior
to the giving of any required notice or the expiration of any specified grace
period, shall constitute a "Default" hereunder.)
6.02. Remedies. Upon the occurrence or existence of any Event of
Default (other than an Event of Default referred to in Subparagraph 6.01(e) or
6.01(f)) and at any time thereafter during the continuance of such Event of
Default, Agent may, with the consent of the Majority Banks, or shall, upon
instructions from the Majority Banks, by written notice to Borrower, (a)
terminate the Commitments and the obligations of the Banks to make Revolving
Loans and/or (b) declare all outstanding Obligations payable by Borrower to be
immediately due and payable without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived, anything contained
herein or in the Notes to the contrary notwithstanding. Upon the occurrence or
existence of any Event of Default described in Subparagraph 6.01(e) or 6.01(f),
immediately and without notice, (1) the Commitments and the
34
obligations of the Banks to make Revolving Loans shall automatically terminate
and (2) all outstanding Obligations payable by Borrower hereunder shall
automatically become immediately due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived, anything contained herein or in the Notes to the contrary
notwithstanding. In addition to the foregoing remedies, upon the occurrence or
existence of any Event of Default, Agent may exercise any right, power or remedy
permitted to it by law, either by suit in equity or by action at law, or both.
Immediately after taking any action under this Paragraph 6.02, Agent shall
notify each Bank of such action.
SECTION VII. AGENT AND RELATIONS AMONG BANKS.
7.01. Appointment, Powers and Immunities. Each Bank hereby appoints and
authorizes Agent to act as its agent hereunder and under the other Credit
Documents with such powers as are expressly delegated to Agent by the terms of
this Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. Agent shall not have any duties or
responsibilities except those expressly set forth in this Agreement or in any
other Credit Document, be a trustee for any Bank or have any fiduciary duty to
any Bank. Notwithstanding anything to the contrary contained herein, Agent shall
not be required to take any action which is contrary to this Agreement or any
other Credit Document or applicable law. Neither Agent nor any Bank shall be
responsible to Agent or any other Bank for any recitals, statements,
representations or warranties made by Borrower contained in this Agreement or in
any other Credit Document, for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, or any other Credit Document or
for any failure by Borrower to perform its obligations hereunder or thereunder.
Agent may employ agents and attorneys-in-fact and shall not be responsible to
any Bank for the negligence or misconduct of any such agents or
attorneys-in-fact selected by them with reasonable care. None of Agent or its
directors, officers, employees or agents shall be responsible to any Bank for
any action taken or omitted to be taken by it or them hereunder or under any
other Credit Document or in connection herewith or therewith, except for its or
their own gross negligence or willful misconduct. Except as otherwise provided
under this Agreement, Agent shall take such action with respect to the Credit
Documents as shall be directed by the Majority Banks. Agent shall promptly
furnish to each Bank copies of all material documents, reports, certificates,
financial statements and notices furnished to Agent by Borrower; provided,
however, that Agent shall not be liable to any Bank for its failure to provide
copies of such material documents, reports, certificates, financial statements
and notices unless such failure constitutes gross negligence or willful
misconduct by Agent.
7.02. Reliance by Agent. Agent shall be entitled to rely upon any
certificate, notice or other document (including any cable, telegram, facsimile
or telex) believed by it in good faith to be genuine and correct and to have
been signed or sent by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel, independent accountants and other
experts selected by Agent with reasonable care. As to any other matters not
expressly provided for by this Agreement, Agent shall not be required to take
any action or exercise any discretion, but Agent shall be required to act or to
refrain from acting upon instructions of the Majority Banks and shall in all
cases be fully protected by the Banks in acting, or in refraining from acting,
hereunder or under any other Credit Document in accordance with the instructions
of
35
the Majority Banks, and such instructions of the Majority Banks and any action
taken or failure to act pursuant thereto shall be binding on Agent and the
Banks.
7.03. Defaults. Agent shall not be deemed to have knowledge or notice
of the occurrence of any Default or Event of Default unless Agent has received a
notice from a Bank or Borrower, referring to this Agreement, describing such
Default or Event of Default and stating that such notice is a "Notice of
Default". If Agent receives such a notice of the occurrence of a Default or
Event of Default, Agent shall give prompt notice thereof to the Banks. Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Majority Banks; provided, however, that until
Agent shall have received such directions, Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable in the best interest of
the Banks.
7.04. Indemnification. Without limiting the Obligations of Borrower
hereunder, each Bank agrees to indemnify Agent, ratably in accordance with such
Bank's Proportionate Share, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may at any time be imposed on, incurred
by or asserted against Agent in any way relating to or arising out of this
Agreement or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof or of any such other documents; provided, however, that
no Bank shall be liable for any of the foregoing to the extent they arise from
Agent's gross negligence or willful misconduct. Agent shall be fully justified
in refusing to take or to continue to take any action hereunder unless it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The obligations of each Bank under this
Paragraph 7.04 shall survive the payment and performance of the Obligations, the
termination of this Agreement and any Bank ceasing to be a party to this
Agreement.
7.05. Non-Reliance. Each Bank represents that it has, independently and
without reliance on Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of Borrower, its Subsidiaries and Guarantor and
its own decision to enter into this Agreement and agrees that it will,
independently and without reliance upon Agent or any Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own appraisals and decisions in taking or not taking action under this
Agreement. Neither Agent nor any Bank shall be required to keep any other Agent
or Bank informed as to the performance or observance by Borrower, its
Subsidiaries or Guarantor of the obligations under this Agreement or any other
document referred to or provided for herein or to make inquiry of, or to inspect
the properties or books of Borrower, its Subsidiaries or Guarantor. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by Agent hereunder, neither Agent nor any Bank shall have
any duty or responsibility to provide Agent or any Bank with any credit or other
information concerning Borrower, its Subsidiaries or Guarantor, which may come
into the possession of Agent or any Bank or any of its or their Affiliates.
36
7.06. Resignation or Removal of Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, Agent may resign at any time
by giving notice thereof to the Banks, and Agent may be removed at any time with
or without cause by the Majority Banks. Upon any such resignation or removal,
the Majority Banks shall have the right to appoint a successor Agent, which
Agent shall be reasonably acceptable to Borrower. If no successor Agent shall
have been appointed by the Majority Banks and shall have accepted such
appointment within thirty (30) days after the retiring Agent's giving of notice
of resignation or the Majority Banks' removal of the retiring Agent, then the
retiring Agent may, on behalf of the Banks, appoint a successor Agent, which
shall be (a) a bank having a combined capital, surplus and retained earnings of
not less than U.S. $500,000,000 and (b) shall be reasonably acceptable to
Borrower; provided, however, that Borrower shall have no right to approve a
successor Agent which is a Bank if an Event of Default has occurred and is
continuing. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Section VII 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
Agent.
7.07. Authorization. Agent is hereby authorized by the Banks to
execute, deliver and perform, each of the Credit Documents to which Agent is or
is intended to be a party and each Bank agrees, subject to the terms of this
Agreement, to be bound by all of the agreements of Agent contained in the Credit
Documents.
7.08. Agent in its Individual Capacity. Agent and its affiliates may
make loans to, accept deposits from and generally engage in any kind of business
with Borrower and its Subsidiaries and Affiliates as though Agent were not an
Agent hereunder. With respect to Revolving Loans made by Fleet as a Bank, Fleet
shall have the same rights and powers under this Agreement and the other Credit
Documents as any other Bank and may exercise the same as though its was not
Agent.
7.09. Agent's Communications Binding Upon Banks. Subject to the terms
of this Agreement, the Banks agree that written communications from Agent to
Borrower on behalf of the Banks shall be binding upon the Banks.
7.10. No Obligations of Borrower. Nothing contained in this Article VII
shall be deemed to impose upon Borrower any obligation in respect of the due and
punctual performance by Agent of its obligations to the Banks under any
provision of this Agreement, and Borrower shall have no liability to Agent or
any Bank in respect of any failure by Agent or any Bank to perform any of their
respective obligations to each other under this Agreement. Without limiting the
generality of the foregoing sentence, where any provision of this Agreement
relating to the payment of any amounts due and owing under the Loan Documents
provides that such payments shall be made by Borrower to Agent for the account
of the Banks, Borrower's obligations to the Banks in respect of such payments
shall be deemed to be satisfied upon the making of such payments to Agent in the
manner provided by this Agreement.
37
SECTION VIII. MISCELLANEOUS.
8.01. Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Borrower, any Bank or Agent under this Agreement or the other Credit Documents
shall be in writing and faxed, mailed or delivered, if to Borrower or Agent at
its respective facsimile number or address set forth below, or, if to any Bank,
at the address or facsimile number specified beneath the heading "Address for
Notices" under the name of such Bank in Schedule I (or to such other facsimile
number or address for any party as indicated in any notice given by that party
to the other parties). All such notices and communications shall be effective
(a) when sent by Federal Express or other overnight service of recognized
standing, on the second Business Day following the deposit with such service;
(b) when mailed, first class postage prepaid and addressed as aforesaid through
the United States Postal Service, upon receipt; (c) when delivered by hand, upon
delivery; and (d) when faxed, upon confirmation of receipt; provided, however,
that any notice delivered to Agent under Section II shall not be effective until
received by such Person.
Agent: Fleet National Bank
Mail Stop MA OF D07A
One Federal Street
Boston, MA 02110
Attn: Mike Barclay
Telephone: (617) 346-0057
Facsimile: (617) 346-0151
Borrower: ATL Products, Inc.
101 Inovation Drive
Irvine, CA 92612-3040
Attn: Mark de Raad
Vice President, Finance & CFO
Telephone: (949) 856-7805
Facsimile: (949) 856-7890
Each Notice of Borrowing, Notice of Conversion and Notice of Interest Period
Selection shall be given by Borrower to Agent to the office of Agent located at
the address referred to above during Agent's normal business hours; provided,
however, that any such notice received by Agent after 1:00 P.M. on any Business
Day shall be deemed received by Agent on the next Business Day. In any case
where this Agreement authorizes notices, requests, demands or other
communications by Borrower to Agent or any Bank to be made by telephone or
facsimile, Agent or any Bank may conclusively presume that anyone purporting to
be a person designated in any incumbency certificate or other similar document
received by Agent or such Bank is such a person.
8.02. Expenses. Borrower shall pay within ten (10) days after demand,
whether or not any Revolving Loan is made hereunder, (a) all (i) Attorney Costs
and (ii) other reasonable fees and expenses payable to third parties incurred by
Agent in connection with the preparation,
38
negotiation, execution, delivery and syndication of this Agreement and the other
Credit Documents, and the preparation, negotiation, execution and delivery of
amendments and waivers hereunder and thereunder; (b) all Attorney Costs and
other reasonable fees and expenses payable to third parties incurred by Agent in
connection with the exercise of its rights or duties under this Agreement and
the other Credit Documents; and (c) all Attorney Costs and other reasonable fees
and expenses payable to third parties incurred by Agent or any Bank in the
enforcement or attempted enforcement of any of the Obligations or in preserving
any of Agent's or the Banks' rights and remedies (including all such fees and
expenses incurred in connection with any "workout" or restructuring affecting
the Credit Documents or the Obligations or any bankruptcy or similar proceeding
involving Borrower, any of its Subsidiaries or Guarantor). The obligations of
Borrower under this Paragraph 8.02 shall survive the payment and performance of
the Obligations and the termination of this Agreement.
8.03. Indemnification. To the fullest extent permitted by law, Borrower
agrees to protect, indemnify, defend and hold harmless Agent, the Banks and
their Affiliates and their respective directors, officers, employees, agents and
advisors ("Indemnitees") from and against any and all liabilities, losses,
damages or expenses of any kind or nature and from any suits, claims or demands
(including in respect of or for reasonable attorney's fees and other expenses)
arising on account of or in connection with (a) any use by Borrower of any
proceeds of the Revolving Loans, (b) any violation or alleged violation of any
Requirement of Law by Borrower or any of its Affiliates, (c) any Default or
Event of Default, (d) or any acquisition or proposed acquisition by Borrower of
the stock or assets (in whole or in part) of any other Person or (e) the
execution, delivery and performance of this Agreement and the other Credit
Documents by any of the Indemnitees (unless arising out of any violation by any
of Agent, the Banks or any of their Affiliates of any applicable law governing
its banking powers), except to the extent such liability arises from the willful
misconduct or gross negligence of such Indemnitee. Upon receiving knowledge of
any suit, claim or demand asserted by a third party that Agent or any Bank
believes is covered by this indemnity, Agent or such Bank shall give Borrower
prompt written notice of the matter (specifying with reasonable particularity
the basis therefor) and an opportunity (but not the obligation) to participate
in and defend it, at Borrower's sole cost and expense, with legal counsel
reasonably satisfactory to Agent or such Bank, as the case may be. Any failure
or delay of Agent or any Bank to notify Borrower of any such suit, claim or
demand as required by this Paragraph 8.03 or to cooperate in the defense thereof
shall not relieve Borrower of its obligations under this Paragraph 8.03 but
shall reduce such obligations to the extent of any increase in those obligations
caused solely by any such failure or delay which is unreasonable. The
obligations of Borrower under this Paragraph 8.03 shall survive the payment and
performance of the Obligations and the termination of this Agreement.
8.04. Waivers; Amendments. Any term, covenant, agreement or condition
of this Agreement or any other Credit Document may be amended or waived if such
amendment or waiver is in writing and is signed by Borrower and the Majority
Banks; provided, however that:
(a) Any amendment, waiver or consent which (i) amends this
Paragraph 8.04, or (ii) amends the definition of Majority Banks must be in
writing and signed or approved in writing by all Banks;
39
(b) Any amendment, waiver or consent which (i) increases the
Total Commitment, (ii) extends the Maturity Date, (iii) reduces the principal of
or interest on the Revolving Loans or any fees or other amounts payable for the
account of the Banks hereunder, or (iv) postpones any date fixed for any payment
of the principal of or interest on the Revolving Loans or any fees or other
amounts payable for the account of the Banks hereunder must be in writing and
signed or approved in writing by all Banks;
(c) Any amendment, waiver or consent which increases or
decreases the Proportionate Share of any Bank must be in writing and signed by
such Bank; and
(d) Any amendment, waiver or consent which affects the rights
or obligations of Agent must be in writing and signed by Agent.
No failure or delay by Agent or any Bank in exercising any right hereunder shall
operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in such waiver or consent, a
waiver or consent given hereunder shall be effective only in the specific
instance and for the specific purpose for which given.
8.05. Successors and Assigns.
(a) Binding Effect. This Agreement and the other Credit
Documents shall be binding upon and inure to the benefit of Borrower, the Banks,
Agent, all future holders of the Notes and their respective successors and
permitted assigns, except that Borrower may not assign or transfer any of its
rights or obligations under any Credit Document without the prior written
consent of Agent and each Bank. All references in this Agreement to any Person
shall be deemed to include all successors and assigns of such Person.
(b) Participations. Any Bank may, in the ordinary course of
its commercial banking business and in accordance with applicable law, at any
time sell to one or more banks or other financial institutions ("Participants")
participating interests in any Revolving Loan owing to such Bank, any Note held
by such Bank, any Commitment of such Bank or any other interest of such Bank
under this Agreement and the other Credit Documents. In the event of any such
sale by a Bank of participating interests to a Participant, such Bank's
obligations under this Agreement to the other parties to this Agreement shall
remain unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Note for all purposes
under this Agreement, such Bank shall retain the right to approve amendments and
waivers and other voting rights hereunder and Agent and Borrower shall continue
to deal solely and directly with such Bank in connection with such Bank's rights
and obligations under this Agreement; provided, however, that any agreement
pursuant to which any Bank sells a participating interest to a Participant may
require the selling Bank to obtain the consent of such Participant in order for
such Bank to agree in writing to any amendment of a type specified in clause
(i), (ii), (iii) or (iv) of Subparagraph 8.04(b) or Subparagraph 8.04(c), as
appropriate. Borrower agrees that if amounts outstanding under this Agreement
and the other Credit Documents are due and unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the fullest extent permitted
40
by law, be deemed to have the right of setoff in respect of its participating
interest in amounts owing under this Agreement and any other Credit Documents to
the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement or any other Credit Documents;
provided, however, that (i) no Participant shall exercise any rights under this
sentence without the consent of Agent, (ii) no Participant shall have any rights
under this sentence which are greater than those of the selling Bank and (iii)
such rights of setoff shall be subject to the obligation of such Participant to
share with the Banks, and the Banks agree to share with such Participant, as
provided in Subparagraph 2.08(b). Borrower also agrees that any Bank which has
transferred all or part of its interests in the Commitments and the Revolving
Loans to one or more Participants shall, notwithstanding any such transfer, be
entitled to the full benefits accorded such Bank under Paragraph 2.09, Paragraph
2.10, and Paragraph 2.11, as if such Bank had not made such transfer.
(c) Assignments. Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at any time,
sell and assign to any Bank, any affiliate of a Bank or any other bank or
financial institution (individually, an "Assignee Bank") all or a portion of its
rights and obligations under this Agreement and the other Credit Documents (such
a sale and assignment to be referred to herein as an "Assignment") pursuant to
an assignment agreement in the form of Exhibit F (an "Assignment Agreement"),
executed by each Assignee Bank and such assignor Bank (an "Assignor Bank") and
delivered to Agent for its acceptance and recording in the Register; provided,
however, that:
(i) Without the written consent of Borrower (which
written consent shall not be unreasonably withheld but which written
consent shall not be required after the occurrence and during the
continuation of an Event of Default), no Bank may make any Assignment
to any Assignee Bank which is not, immediately prior to such
Assignment, a Bank hereunder or an affiliate which controls, is
controlled by or is under common control with a Bank hereunder;
(ii) Without the written consent of Borrower (which
written consent of Borrower shall not be required after the occurrence
and during the continuation of an Event of Default) and Agent (which
consent of Borrower and Agent shall not be unreasonably withheld), no
Bank may make any Assignment to any Assignee Bank which is, immediately
prior to such Assignment, a Bank hereunder or an affiliate which
controls, is controlled by or is under common control with a Bank
hereunder if the principal amount of such Assignment is less than
$5,000,000 (except that any Bank may make an Assignment which reduces
its Commitment to zero without the written consent of Borrower and
Agent); and
(iii) No Bank may make any Assignment which does not
assign and delegate an equal pro rata interest in such Bank's Revolving
Loans, Commitments and all other rights, duties and obligations of such
Bank under this Agreement and the other Credit Documents.
Upon such execution, delivery, acceptance and recording of each Assignment
Agreement, from and after the Assignment Effective Date determined pursuant to
such Assignment Agreement,
41
(A) each Assignee Bank thereunder shall be a Bank hereunder with a Proportionate
Share as set forth on Attachment 1 to such Assignment Agreement and shall have
the rights, duties and obligations of such a Bank under this Agreement and the
other Credit Documents, and (B) the Assignor Bank thereunder shall be a Bank
with a Proportionate Share as set forth on Attachment 1 to such Assignment
Agreement, or, if the Proportionate Share of the Assignor Bank has been reduced
to 0%, the Assignor Bank shall cease to be a Bank; provided, however, that any
such Assignor Bank which ceases to be a Bank shall continue to be entitled to
the benefits of any provision of this Agreement which by its terms survives the
termination of this Agreement. Each Assignment Agreement shall be deemed to
amend Schedule I to the extent, and only to the extent, necessary to reflect the
addition of each Assignee Bank, the deletion of each Assignor Bank which reduces
its Proportionate Share to 0% and the resulting adjustment of Proportionate
Shares arising from the purchase by each Assignee Bank of all or a portion of
the rights and obligations of an Assignor Bank under this Agreement and the
other Credit Documents. On or prior to the Assignment Effective Date determined
pursuant to each Assignment Agreement, Borrower, at its own expense, shall
execute and deliver to Agent, in exchange for the surrendered Note of the
Assignor Bank thereunder, a new Note to the order of each Assignee Bank
thereunder in an amount equal to the Commitment assumed by such Assignee Bank
and, if the Assignor Bank is continuing as a Bank hereunder, a new Note to the
order of the Assignor Bank in an amount equal to the Commitment retained by it.
Each such new Note shall be dated the Closing Date and otherwise be in the form
of the Note replaced thereby (provided that Borrower shall not be obligated to
pay any additional interest to any Assignee Bank in respect to any principal
payments made prior to the Assignment Effective Date of the Assignment to such
Assignee Bank). The Notes surrendered by the Assignor Bank shall be returned by
Agent to Borrower marked "replaced". Each Assignee Bank which was not previously
a Bank hereunder and which is not incorporated under the laws of the United
States of America or a state thereof shall, within three (3) Business Days of
becoming a Bank, deliver to Borrower and Agent either two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224 (or successor
applicable form), as the case may be, certifying in each case that such Bank is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes.
(d) Register. Agent shall maintain at its address referred to
in Paragraph 8.01 a copy of each Assignment Agreement delivered to it and a
register (the "Register") for the recordation of the names and addresses of the
Banks and the Proportionate Share of each Bank from time to time. The entries in
the Register shall be conclusive in the absence of manifest error, and Borrower,
Agent and the Banks may treat each Person whose name is recorded in the Register
as the owner of the Revolving Loans recorded therein for all purposes of this
Agreement. The Register shall be available for inspection by Borrower or any
Bank at any reasonable time and from time to time upon reasonable prior notice.
(e) Registration. Upon its receipt of an Assignment Agreement
executed by an Assignor Bank and an Assignee Bank (and, to the extent required
by Subparagraph 8.05(c), by Borrower and Agent), together with payment to Agent
by Assignor Bank of a registration and processing fee of $3,500, Agent shall (i)
promptly accept such Assignment Agreement and (ii) on the Assignment Effective
Date determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Banks and
42
Borrower. Agent may, from time to time at its election, prepare and deliver to
the Banks and Borrower a revised Schedule I reflecting the names, addresses and
respective Proportionate Shares of all Banks then parties hereto.
8.06. Setoff; Security Interest.
(a) Setoff. In addition to any rights and remedies of the
Banks provided by law, each Bank shall have the right, with the prior consent of
Agent, but without prior notice to or consent from Borrower, any such notice or
consent being expressly waived by Borrower to the extent permitted by applicable
law, upon the occurrence and during the continuance of an Event of Default, to
set-off and apply, or to authorize or direct such Bank to set-off and apply,
against any indebtedness, whether matured or unmatured, of Borrower to such
Bank, any amount owing from such Bank to Borrower, at or at any time after, the
happening of any of the above mentioned events, and as security for such
indebtedness, Borrower hereby grants to Agent and each Bank a continuing
security interest in any and all deposits, accounts or moneys of Borrower then
or thereafter maintained with such Bank, subject in each case to Subparagraph
2.08(b). The aforesaid right of set-off may be exercised by any Bank against
Borrower or against any trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver or execution, judgment or attachment
creditor of Borrower or against anyone else claiming through or against Borrower
or such trustee in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of set-off shall not have been
exercised by such Bank prior to the occurrence of an Event of Default. Any Bank
which exercises its right of setoff agrees promptly to notify Borrower after any
such set-off and application made by such Bank, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
(b) Security Interest. As security for the Obligations,
Borrower hereby grants to each Bank, for the benefit of Agent and all Banks, a
continuing security interest in any and all deposit accounts or moneys of
Borrower now or hereafter maintained with such Bank. Each Bank shall have all of
the rights of a secured party with respect to such security interest.
8.07. No Third Party Rights. Nothing expressed in or to be implied from
this Agreement is intended to give, or shall be construed to give, any Person,
other than the parties hereto and their permitted successors and assigns
hereunder, any benefit or legal or equitable right, remedy or claim under or by
virtue of this Agreement or under or by virtue of any provision herein.
8.08. Partial Invalidity. If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect under
the law or any jurisdiction, neither the legality, validity or enforceability of
the remaining provisions of this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall
in any way be affected or impaired thereby.
8.09. Jury Trial. EACH OF BORROWER, THE BANKS AND AGENT, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING HERETO IN
43
ANY ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY CREDIT
DOCUMENT.
8.10. Counterparts. This Agreement may be executed in any number of
identical counterparts, any set of which signed by all the parties hereto shall
be deemed to constitute a complete, executed original for all purposes.
8.11. Confidentiality. None of the Banks and Agent shall disclose to
any Person any information with respect to Borrower or any of its Subsidiaries
which is furnished pursuant to this Agreement, except that any Bank or Agent may
disclose any such information (a) to its own directors, officers, employees,
auditors, counsel and other professional advisors and to its Affiliates if such
Bank or Agent or such Bank's or such Agent's holding or parent company in its
sole discretion determines that any such party should have access to such
information; (b) to another Bank or Agent; (c) if generally available to the
public; (d) if required or appropriate in any report, statement or testimony
submitted to any Governmental Authority having or claiming to have jurisdiction
over such Bank or Agent; (e) if required or appropriate in response to any
summons or subpoena or in connection with any litigation, to the extent
permitted or deemed advisable by counsel; (f) to comply with any Requirement of
Law applicable to such Bank or Agent; (g) to any Participant or Assignee Bank or
any prospective Participant or Assignee Bank, provided that such Participant or
Assignee or prospective Participant or Assignee agrees in writing to be bound by
this Paragraph 8.11 prior to disclosure; or (h) otherwise with the prior consent
of Borrower; provided, however, that any disclosure made in violation of this
Agreement shall not affect the obligations of Borrower under this Agreement and
the other Credit Documents.
[The next page is the first signature page.]
44
IN WITNESS WHEREOF, Borrower, the Banks and Agent have caused this
Agreement to be executed as of the day and year first above written.
BORROWER: ATL PRODUCTS, INC.
By: /s/ Mark de Raad
------------------------------------------------
Name: Mark de Raad
-------------------------------------
Title: Vice President, Finance & CFO
-------------------------------------
AGENT: FLEET NATIONAL BANK,
As Agent
By: /s/ Michael S. Barclay
------------------------------------------------
Name: Michael S. Barclay
-------------------------------------
Title: Vice President
-------------------------------------
BANKS: FLEET NATIONAL BANK,
As a Bank
By: /s/ Michael S. Barclay
-------------------------------------------------
Name: Michael S. Barclay
-------------------------------------
Title: Vice President
-------------------------------------
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, As a Bank
By: /s/ Kevin Mc Mahon
------------------------------------------------
Name: Kevin Mc Mahon
-------------------------------------
Title: Managing Director
-------------------------------------
45
SCHEDULE I
BANKS
PROPORTIONATE
BANK SHARE*
- ---- ------
FLEET NATIONAL BANK 57.14285714%
- -------------------
Applicable Lending Office:
Fleet National Bank
75 State Street
Boston, MA 02109
Address for Notices:
Fleet National Bank
Mail Stop MA OF D07A
One Federal Street
Boston, MA 02110
Attention: Mike Barclay
Vice President
Telephone:(617) 346-0057
Fax:(617) 346-0151
Wiring Instructions:
Fleet National Bank
75 State Street
Boston, MA 02109
ABA: 011-000-138
Account Name: Incoming Loan in Process Wire Account
A/C No.: 1510351-03156
Reference: ATL Products, Inc.
Attention: Commercial Loan Operations/Agent Bank
*To be expressed as a percentage rounded to the eighth digit to the right of the
decimal point.
I-1
PROPORTIONATE
BANK SHARE*
- ---- ------
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION 42.85714286%
- -------------------------------
Applicable Lending Office:
Bank of America National Trust
and Savings Association
1850 Gateway Boulevard, 3rd Floor
Concord, CA 94520
Attention: Julia Young
GPO Account Admin: #5693
Telephone:(510) 675-7328
Fax:(510) 675-7531
Address for Notices:
Bank of America National Trust
and Savings Association
Credit Products-High Technology-SF #3697
555 California Street, 41st Floor
San Francisco, CA 94104
Attention: Kevin McMahon
Managing Director
Telephone:(415) 622-8088
Fax:(415) 622-2514
Wiring Instructions:
Bank of America National Trust
and Savings Association
San Francisco, California
ABA No.: 121000358
Account No.: 1233183980
Reference: ATL Products, Inc.
Attention: Julia Young
* To be expressed as a percentage rounded to the eighth digit to the right of
the decimal point.
I-2
PROPORTIONATE
BANK SHARE*
- ---- ------
I-3
SCHEDULE II
PRICING GRID
LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5
PERIOD PERIOD PERIOD PERIOD PERIOD
------ ------ ------ ------ ------
APPLICABLE MARGIN: 0.40% 0.55% 0.70% 0.90% 1.10%
- -----------------
COMMITMENT FEE .150% .200% .250% .300% .375%
PERCENTAGES:
- --------------
EXPLANATION
1. The Applicable Margin for each LIBOR Loan and the Commitment Fee
Percentage will be set for each Pricing Period and will vary depending
upon whether such period is a Level 1 Period, a Level 2 Period, a Level
3 Period, a Level 4 Period or a Level 5 Period.
2. The first Pricing Period, which commences on the date of this Agreement
and ends on February 28, 1999, will be a Level 5 Period.
3. The second Pricing Period, which commences on March 1, 1999 and ends on
June 30, 1999, will be a Level 1 Period, a Level 2 Period, a Level 3
Period, a Level 4 Period or a Level 5 Period depending upon Guarantor's
Total Funded Debt Ratio (and, with respect to determining pricing at
Level 1 Pricing only, EBITDA) for the consecutive four-fiscal quarter
period ending on December 31, 1998.
4. Each Pricing Period thereafter will be a Level 1 Period, a Level 2
Period, a Level 3 Period, a Level 4 Period or a Level 5 Period
depending upon Guarantor's Total Funded Debt Ratio (and, with respect
to determining pricing at Level 1 Pricing only, EBITDA) for the most
recent consecutive four-fiscal quarter period ending prior to the first
day of such Pricing Period as follows:
(a) If, during any Pricing Period (i) Guarantor's Total Funded
Debt Ratio is 1.00 or less and (ii) Guarantor's EBITDA for the
previous four quarters is $400,000,000 or more, Borrower's
pricing will be a Level 1 Period.
(b) If, during any Pricing Period, (i) Guarantor's Total Funded
Debt Ratio is more than 1.00 but less than or equal to 1.50,
or (ii) Guarantor's Total Funded Debt Ratio is less than or
equal to 1.00 but Borrower's EBITDA for the previous four
quarters is less than $400,000,000, Borrower's pricing will be
a Level 2 Period.
II-1
(c) If, during any Pricing Period, Guarantor's Total Funded Debt
Ratio is more than 1.50 but less than or equal to 2.00,
Borrower's pricing will be a Level 3 Period.
(d) If, during any Pricing Period, Guarantor's Total Funded Debt
Ratio is more than 2.00 but less than or equal to 2.50,
Borrower's pricing will be a Level 4 Period.
(e) If, during any Pricing Period, Guarantor's Total Funded Debt
Ratio is more than 2.50, Borrower's pricing will be a Level 5
Period.
5. Level 1 Period will also apply during any Pricing Period (other than
the first Pricing Period) in which Guarantor's senior long term debt
rating from S&P or Moody's is equal to or better than either BBB- or
Baa3 or Guarantor's subordinated debt rating from S&P or Moody's is
equal to or better than BB+ or Ba1.
II-2
SCHEDULE 3.01
INITIAL CONDITIONS PRECEDENT
A. Principal Credit Documents.
(1) The Credit Agreement, duly executed by Borrower, each Bank
and Agent;
(2) A Note payable to each Bank, each duly executed by
Borrower; and
(3) The Guaranty, duly executed by Guarantor in favor of Agent
for the benefit of the Banks.
B. Borrower Corporate Documents.
(1) The Certificate of Incorporation of Borrower, certified as
of a recent date prior to the Closing Date by the Secretary of State of
Delaware;
(2) A Certificate of Good Standing for Borrower (or comparable
certificate), certified as of a recent date prior to the Closing Date
by the Secretary of State of Delaware;
(3) A certificate of the Secretary or an Assistant Secretary
of Borrower, dated the Closing Date, certifying (a) that attached
thereto is a true and correct copy of the Bylaws of Borrower as in
effect on the Closing Date; (b) that attached thereto are true and
correct copies of resolutions duly adopted by the Board of Directors of
Borrower and continuing in effect, which authorize the execution,
delivery and performance by Borrower of this Agreement and the other
Credit Documents executed or to be executed by Borrower and the
consummation of the transactions contemplated hereby and thereby; (c)
that there are no proceedings for the dissolution or liquidation of
Borrower; and (d) the incumbency, signatures and authority of the
officers of Borrower authorized to execute, deliver and perform this
Agreement, the other Credit Documents and all other documents,
instruments or agreements related thereto executed or to be executed by
Borrower and indicating each such officer which is an Executive Officer
or Authorized Financial Officer of Borrower; and
(4) Certificates of Good Standing (or comparable certificate)
for Borrower, certified as of a recent date prior to the Closing Date
by the Secretaries of State (or comparable public official) of each
state in which Borrower is qualified to do business.
C. Guarantor Corporate Documents.
(1) The Certificate of Incorporation of Guarantor, certified
as of a recent date prior to the Closing Date by the Secretary of State
of Delaware;
(2) A Certificate of Good Standing for Guarantor (or
comparable certificate), certified as of a recent date prior to the
Closing Date by the Secretary of State of Delaware;
3.01-1
(3) A certificate of the Secretary or an Assistant Secretary
of Guarantor, dated the Closing Date, certifying (a) that attached
thereto is a true and correct copy of the Bylaws of Guarantor as in
effect on the Closing Date; (b) that attached thereto are true and
correct copies of resolutions duly adopted by the Board of Directors of
Guarantor and continuing in effect, which authorize the execution,
delivery and performance by Guarantor of this Agreement and the other
Credit Documents executed or to be executed by Guarantor and the
consummation of the transactions contemplated hereby and thereby; (c)
that there are no proceedings for the dissolution or liquidation of
Guarantor; and (d) the incumbency, signatures and authority of the
officers of Guarantor authorized to execute, deliver and perform this
Agreement, the other Credit Documents and all other documents,
instruments or agreements related thereto executed or to be executed by
Guarantor and indicating each such officer which is an Executive
Officer or Authorized Financial Officer of Guarantor; and
(4) Certificates of Good Standing (or comparable certificate)
for Guarantor, certified as of a recent date prior to the Closing Date
by the Secretaries of State (or comparable public official) of each
state in which Guarantor is qualified to do business.
D. Financial Statements, Financial Condition, Etc.
(1) A copy of the unaudited balance sheet, statements of
income and cash flows of Borrower and its Subsidiaries for the fiscal
quarter ended September 30, 1998 and for the fiscal year to such date
(prepared on a consolidated basis);
(2) A copy of the unaudited balance sheet, statements of
income and cash flows of Guarantor and its Subsidiaries for the fiscal
quarter ended September 30, 1998 and for the fiscal year to such date
(prepared on a consolidated basis);
(3) A copy of the audited consolidated Financial Statements of
Borrower for the fiscal year ended March 31, 1998, prepared by Ernst &
Young and a copy of the unqualified opinion delivered by such
accountants in connection with such Financial Statements;
(4) A copy of the audited consolidated Financial Statements of
Guarantor for the fiscal year ended March 31, 1998, prepared by Ernst &
Young and a copy of the unqualified opinion delivered by such
accountants in connection with such Financial Statements;
(5) A copy of the 10-Q report filed by Guarantor with the
Securities and Exchange Commission for the quarter ended September 30,
1998;
(6) A copy of the 10-K report filed by Guarantor with the
Securities and Exchange Commission for the fiscal year ended March 31,
1998; and
(7) Such other financial, business and other information
regarding Borrower, any of its Subsidiaries, Guarantor or any of its
Subsidiaries as Agent or any Bank may
3.01-2
reasonably request, including information as to possible contingent
liabilities, tax matters, environmental matters and obligations for
employee benefits and compensation.
E. Opinions. A favorable written opinion from Wilson Sonsini Goodrich & Rosati,
counsel for Borrower and Guarantor, dated the Closing Date, addressed to Agent
for the benefit of Agent and the Banks, covering such legal matters as Agent may
reasonably request and otherwise in form and substance satisfactory to Agent.
F. Other Items.
(1) A duly completed and timely delivered Notice of Borrowing;
(2) The Borrower Disclosure Letter, duly executed by Borrower;
(3) An organization chart for Guarantor, its Subsidiaries,
Borrower and its Subsidiaries, setting forth the relationship among
such Persons, certified by an Executive Officer of Borrower;
(4) Evidence satisfactory to Agent that since September 30,
1998, (i) no event has occurred and no condition exists which could
reasonably be expected to have a Material Adverse Effect and (ii) no
change has occurred to the capital structure of Borrower which is
unacceptable to Agent in its sole discretion;
(5) A certificate of an Executive Officer of Borrower,
addressed to Agent and dated the Closing Date, certifying that:
(a) The representations and warranties of Borrower
and its Subsidiaries set forth in Paragraph 4.01 and the
representations and warranties of Borrower and its
Subsidiaries and Guarantor and its Subsidiaries set forth in
the other Credit Documents are true and correct in all
material respects as if made on such date (except for
representations and warranties expressly made as of a
specified date, which shall be true as of such date); and
(b) No Event of Default or Default has occurred and
is continuing as of such date;
(6) Evidence satisfactory to Agent that the proceeds of the
initial Loans to be made on the Closing Date will be used to satisfy
all outstanding indebtedness of Borrower under the Prior Credit
Agreement, that the obligations of Borrower under the Prior Credit
Agreement (other than inchoate indemnity obligations) have been
satisfied and that the Prior Credit Agreement is terminated;
(7) All fees and expenses payable to Agent and the Banks on or
prior to the Closing Date (including all Origination Fees and all fees
payable to Agent pursuant to the Agent's Fee Letters);
(8) All fees and expenses of Agent's counsel through the
Closing Date; and
3.01-3
(9) Such other evidence as Agent or any Bank may reasonably
request to establish the accuracy and completeness of the
representations and warranties and the compliance with the terms and
conditions contained in this Agreement and the other Credit Documents.
3.01-4
EXHIBIT A
NOTICE OF BORROWING
[Date]
Fleet National Bank,
as Agent
Mail Stop MA OF D07A
One Federal Street
Boston, MA 02110
Attn: Mike Barclay
1. Reference is made to that certain Credit Agreement, dated as of
December 18, 1998 (as amended from time to time, the "Credit Agreement"), among
ATL Products, Inc. ("Borrower"), the financial institutions listed in Schedule I
to the Credit Agreement (the "Banks"), and Fleet National Bank, as agent for the
Banks (in such capacity, "Agent"). Unless otherwise indicated, all terms defined
in the Credit Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(b) of the Credit Agreement, Borrower
irrevocably hereby requests a Borrowing upon the following terms:
(a) The principal amount of the requested Borrowing is to be
$__________;
(b) The requested Borrowing is to consist of ["Base Rate" or
"LIBOR"] Loans;
(c) If the requested Borrowing is to consist of LIBOR Loans,
the initial Interest Period for such Revolving Loans will be
[__________ month[s]]; and
(d) The date of the requested Borrowing is to be __________,
____.
3. Borrower hereby certifies to Agent and the Banks that, on the date
of this Notice of Borrowing and after giving effect to the requested Borrowing:
(a) The representations and warranties of Borrower and its
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and
the representations and warranties of Borrower and its Subsidiaries and
Guarantor and its Subsidiaries set forth in the other Credit Documents
are true and correct in all material respects as if made on such date
(except for representations and warranties expressly made as of a
specified date, which shall be true as of such date); and
(b) No Default or Event of Default has occurred and is
continuing or will result from the requested Borrowing.
1
4. Please disburse the proceeds of the requested Borrowing to ___
________________________________________________________________________________
________________________________________________________________________________
IN WITNESS WHEREOF, Borrower has executed this Notice of Borrowing on
the date set forth above.
ATL PRODUCTS, INC.
By:__________________________________________
Name:_________________________________
Title:________________________________
2
EXHIBIT B
NOTICE OF CONVERSION
[Date]
Fleet National Bank,
as Agent
Mail Stop MA OF D07A
One Federal Street
Boston, MA 02110
Attn: Mike Barclay
1. Reference is made to that certain Credit Agreement, dated as of
December 18, 1998 (as amended from time to time, the "Credit Agreement"), among
ATL Products, Inc. ("Borrower"), the financial institutions listed in Schedule I
to the Credit Agreement (the "Banks"), and Fleet National Bank, as agent for the
Banks (in such capacity, "Agent"). Unless otherwise indicated, all terms defined
in the Credit Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(d) of the Credit Agreement, Borrower
hereby irrevocably requests to convert a Borrowing as follows:
(a) The Borrowing to be converted consists of ["Base Rate" or
"LIBOR"] Loans in the aggregate principal amount of $__________ which
were initially advanced to Borrower on __________, ____;
(b) The Revolving Loans in the Borrowing are to be converted
into ["Base Rate" or "LIBOR"] Loans;
(c) If such Revolving Loans are to be converted into LIBOR
Loans, the initial Interest Period for such Revolving Loans commencing
upon conversion will be [__________ month[s]]; and
(d) The date of the requested conversion is to be __________,
____.
3. Borrower hereby certifies to Agent and the Banks that, on the date
of this Notice of Conversion, and after giving effect to the requested
conversion, no Default or Event of Default has occurred and is continuing or
will result from the requested conversion.
1
IN WITNESS WHEREOF, Borrower has executed this Notice of Conversion on
the date set forth above.
ATL PRODUCTS, INC.
By:________________________________________
Name:______________________________________
Title:_____________________________________
2
EXHIBIT C
NOTICE OF INTEREST PERIOD SELECTION
[Date]
Fleet National Bank,
as Agent
Mail Stop MA OF D07A
One Federal Street
Boston, MA 02110
Attn: Mike Barclay
1. Reference is made to that certain Credit Agreement, dated as of
December 18, 1998 (as amended from time to time, the "Credit Agreement"), among
ATL Products, Inc. ("Borrower"), the financial institutions listed in Schedule I
to the Credit Agreement (the "Banks"), and Fleet National Bank, as agent for the
Banks (in such capacity, "Agent"). Unless otherwise indicated, all terms defined
in the Credit Agreement have the same respective meanings when used herein.
2. Pursuant to Subparagraph 2.01(e) of the Credit Agreement, Borrower
hereby irrevocably selects a new Interest Period for a Revolving Loan as
follows:
(a) The Borrowing for which a new Interest Period is to be
selected consists of LIBOR Loans in the aggregate principal amount of
$__________ which were initially advanced to Borrower on
__________, ____;
(b) The last day of the current Interest Period for such
Revolving Loans is __________, ____; and
(c) The next Interest Period for such Revolving Loans
commencing upon the last day of the current Interest Period is to be
[_________ month[s]].
3. Borrower hereby certifies to Agent and the Banks that, on the date
of this Notice of Interest Period Selection, and after giving effect to the
requested selection, no Default or Event of Default has occurred and is
continuing or will result from the requested selection.
1
IN WITNESS WHEREOF, Borrower has executed this Notice of Interest
Period Selection on the date set forth above.
ATL PRODUCTS, INC.
By:__________________________________________
Name:_________________________________
Title:________________________________
2
EXHIBIT D
REVOLVING LOAN NOTE
$ 20,000,000 December 18, 1998
FOR VALUE RECEIVED, ATL PRODUCTS, INC., a Delaware corporation
("Borrower"), hereby promises to pay to the order of Fleet National Bank
("Bank"), the principal sum of Twenty Million DOLLARS ($20,000,000), or such
lesser amount as shall equal the aggregate outstanding principal balance of the
Revolving Loans made by Bank to Borrower pursuant to the Credit Agreement
referred to below (as amended from time to time, the "Credit Agreement"), on or
before the Maturity Date specified in the Credit Agreement, and to pay interest
on said sum, or such lesser amount, at the rates and on the dates provided in
the Credit Agreement.
Borrower shall make all payments hereunder, for the account of Bank's
Applicable Lending Office, to Agent as indicated in the Credit Agreement, in
lawful money of the United States and in same day or immediately available
funds.
Borrower hereby authorizes Bank to record on the schedule(s) annexed to
this note the date and amount of each Revolving Loan and of each payment or
prepayment of principal made by Borrower and agrees that all such notations
shall constitute prima facie evidence of the matters noted; provided, however,
that the failure of Bank to make any such notation shall not affect Borrower's
obligations hereunder.
This note is one of the Notes referred to in the Credit Agreement,
dated as of December 18, 1998, among Borrower, Bank and the other financial
institutions from time to time parties thereto (collectively, the "Banks"),
Fleet National Bank, as agent for the Banks. This note is subject to the terms
of the Credit Agreement, including the rights of prepayment and the rights of
acceleration of maturity set forth therein. The transfer, sale or assignment of
any rights under or interest in this note is subject to certain restrictions
contained in the Credit Agreement, including Paragraph 8.05 thereof. Terms used
herein have the meanings assigned to those terms in the Credit Agreement, unless
otherwise defined herein.
1
Borrower shall pay all reasonable fees and expenses payable to third
parties, including reasonable attorneys' fees, incurred by Bank in the
enforcement or attempt to enforce any of Borrower's obligations hereunder not
performed when due. Borrower hereby waives notice of presentment, demand,
protest or notice of any other kind. This note shall be governed by and
construed in accordance with the laws of the State of California.
ATL PRODUCTS, INC.
By: /s/ Mark de Raad
-----------------------------------------
Name: Mark de Raad
---------------------------------------
Title: Vice President, Finance & CFO
---------------------------------------
2
LOANS AND PAYMENTS OF PRINCIPAL
- ---------------------------------------------------------------------------------------------------------------------
Date Type of Loan Amount of Loan Interest Period Amount of Unpaid Notation Made
Principal Paid Principal By
or Prepaid Balance
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
3
EXHIBIT D__
REVOLVING LOAN NOTE
$ 15,000,000 December 18, 1998
FOR VALUE RECEIVED, ATL PRODUCTS, INC., a Delaware corporation
("Borrower"), hereby promises to pay to the order of Bank of America National
Trust & Savings Association ("Bank"), the principal sum of Fifteen Million
DOLLARS ($15,000,000), or such lesser amount as shall equal the aggregate
outstanding principal balance of the Revolving Loans made by Bank to Borrower
pursuant to the Credit Agreement referred to below (as amended from time to
time, the "Credit Agreement"), on or before the Maturity Date specified in the
Credit Agreement, and to pay interest on said sum, or such lesser amount, at the
rates and on the dates provided in the Credit Agreement.
Borrower shall make all payments hereunder, for the account of Bank's
Applicable Lending Office, to Agent as indicated in the Credit Agreement, in
lawful money of the United States and in same day or immediately available
funds.
Borrower hereby authorizes Bank to record on the schedule(s) annexed to
this note the date and amount of each Revolving Loan and of each payment or
prepayment of principal made by Borrower and agrees that all such notations
shall constitute prima facie evidence of the matters noted; provided, however,
that the failure of Bank to make any such notation shall not affect Borrower's
obligations hereunder.
This note is one of the Notes referred to in the Credit Agreement,
dated as of December 18, 1998, among Borrower, Bank and the other financial
institutions from time to time parties thereto (collectively, the "Banks"),
Fleet National Bank, as agent for the Banks. This note is subject to the terms
of the Credit Agreement, including the rights of prepayment and the rights of
acceleration of maturity set forth therein. The transfer, sale or assignment of
any rights under or interest in this note is subject to certain restrictions
contained in the Credit Agreement, including Paragraph 8.05 thereof. Terms used
herein have the meanings assigned to those terms in the Credit Agreement, unless
otherwise defined herein.
4
Borrower shall pay all reasonable fees and expenses payable to third
parties, including reasonable attorneys' fees, incurred by Bank in the
enforcement or attempt to enforce any of Borrower's obligations hereunder not
performed when due. Borrower hereby waives notice of presentment, demand,
protest or notice of any other kind. This note shall be governed by and
construed in accordance with the laws of the State of California.
ATL PRODUCTS, INC.
By: /s/ Mark de Raad
-------------------------------------------
Name: Mark de Raad
----------------------------------------
Title: Vice President, Finance & CFO
----------------------------------------
5
LOANS AND PAYMENTS OF PRINCIPAL
- ---------------------------------------------------------------------------------------------------------------------
Date Type of Loan Amount of Loan Interest Period Amount of Unpaid Notation Made
Principal Paid Principal By
or Prepaid Balance
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
- ----------------- ---------------- --------------- ---------------- ---------------- --------------- ----------------
6
EXHIBIT E
FORM OF GUARANTY
GUARANTY
THIS GUARANTY, dated as of December 18, 1998, is executed by QUANTUM
CORPORATION, a Delaware corporation ("Guarantor"), in favor of FLEET NATIONAL
BANK, a national banking association, acting as agent (in such capacity, and
each successor thereto in such capacity, "Agent") for the financial institutions
which are from time to time parties to the Credit Agreement referred to in
Recital A below (collectively, the "Banks").
RECITALS
A. Pursuant to a Credit Agreement dated as of December 18, 1998, (as
amended from time to time, the "Credit Agreement"), among ATL Products, Inc., a
Delaware corporation ("Borrower"), the Banks and Agent, the Banks have agreed to
extend certain credit facilities to Borrower upon the terms and subject to the
conditions set forth therein. Guarantor is the sole shareholder of Borrower.
B. The Banks' obligations to extend the credit facilities to Borrower
under the Credit Agreement are subject, among other conditions, to receipt by
Agent of this Guaranty, duly executed by Guarantor.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Guarantor hereby agrees with Agent, for the ratable benefit of the
Banks and Agent, as follows:
1. Definitions and Interpretation.
(a) Definitions. When used in this Guaranty, the following
terms shall have the following respective meanings:
"Agent" shall have the meaning given to that term in
the introductory paragraph hereof.
"Banks" shall have the meaning given to that term in
the introductory paragraph hereof.
"Borrower" shall have the meaning given to that term
in the Recital A hereof.
"Credit Agreement" shall have the meaning given to
that term in the Recital A hereof.
E-1
"Disallowed Post-Commencement Interest and Expenses"
shall mean interest computed at the rate provided in the
Credit Agreement and claims for reimbursement, costs, expenses
or indemnities under the terms of any of the Credit Documents
accruing or claimed at any time after the commencement of any
Insolvency Proceeding, if the claim for such interest,
reimbursement, costs, expenses or indemnities is not
allowable, allowed or enforceable against Borrower in such
Insolvency Proceeding.
"Guaranteed Obligations" shall mean all loans,
advances, debts, liabilities and obligations, howsoever
arising, owed by Borrower to Agent or any Bank of every kind
and description (whether or not evidenced by any note or
instrument and whether or not for the payment of money),
direct or indirect, absolute or contingent, due or to become
due, now existing or hereafter arising pursuant to the terms
of the Credit Agreement or any of the other Credit Documents,
including, without limitation, all principal, interest, rent,
fees, taxes, charges, expenses, attorneys' fees and
accountants' fees chargeable to Borrower or payable by
Borrower thereunder.
"Guarantor" shall have the meaning given to that term
in the introductory paragraph hereof.
"Insolvency Proceeding" shall mean any case or
proceeding under the United States Bankruptcy Code or any
other similar law, rule or regulation of the United States or
any jurisdiction or any other action or proceeding for the
reorganization, liquidation, appointment of a receiver,
rearrangement of debts, marshalling of assets or similar
action relating to Borrower or Guarantor, their respective
creditors or any substantial part of their respective assets,
whether or not any such case, proceeding or action is
voluntary or involuntary.
"Subordinated Obligations" shall have the meaning
given to that term in Paragraph 6 hereof.
Unless otherwise defined herein, all other capitalized terms used
herein and defined in the Credit Agreement shall have the respective
meanings given to those terms in the Credit Agreement.
(b) Other Interpretive Provisions. The rules of construction
set forth in Section I of the Credit Agreement shall, to the extent not
inconsistent with the terms of this Guaranty, apply to this Guaranty
and are hereby incorporated by reference. Guarantor acknowledges
receipt of copies of the Credit Agreement and the other Credit
Documents.
(c) GAAP. Unless otherwise indicated in this Guaranty, the
Credit Agreement or any other Credit Document, all accounting terms
used in this Guaranty, the Credit
E-2
Agreement or any other Credit Document shall be construed, and all
accounting and financial computations hereunder or thereunder shall be
computed, in accordance with GAAP. If GAAP changes in any material
respect during the term of this Guaranty such that any covenants
contained herein would then be calculated in a different manner or with
different components, Guarantor, the Banks and Agent agree to negotiate
in good faith to amend this Guaranty in such respects as are necessary
to conform those covenants as criteria for evaluating Guarantor's
financial condition to substantially the same criteria as were
effective prior to such change in GAAP; provided, however, that, until
Guarantor, the Banks and Agent so amend this Guaranty, all such
covenants shall be calculated in accordance with GAAP as in effect
immediately prior to such change.
2. Guaranty.
(a) Payment Guaranty. Guarantor unconditionally guarantees and
promises to pay and perform as and when due, whether at stated
maturity, upon acceleration or otherwise, any and all of the Guaranteed
Obligations. If any Insolvency Proceeding relating to Borrower is
commenced, Guarantor further unconditionally guarantees and promises to
pay and perform, upon the demand of Agent, any and all of the
Guaranteed Obligations (including any and all Disallowed
Post-Commencement Interest and Expenses) in accordance with the terms
of the Credit Documents, whether or not such obligations are then due
and payable by Borrower and whether or not such obligations are
modified, reduced or discharged in such Insolvency Proceeding. This
Guaranty is a guaranty of payment and not of collection.
(b) Continuing Guaranty. This Guaranty is an irrevocable
continuing guaranty of the Guaranteed Obligations which shall continue
in effect until all obligations of the Banks to extend credit to
Borrower have terminated and all of the Guaranteed Obligations (other
than inchoate indemnity obligations of Borrower) have been fully,
finally and indefeasibly paid. If any payment on any Guaranteed
Obligation is set aside, avoided or rescinded or otherwise recovered
from Agent or any Bank, such recovered payment shall constitute a
Guaranteed Obligation hereunder and, if this Guaranty was previously
released or terminated, it automatically shall be fully reinstated, as
if such payment was never made.
(c) Independent Obligation. The liability of Guarantor
hereunder is independent of the Guaranteed Obligations, and a separate
action or actions may be brought and prosecuted against Guarantor
irrespective of whether action is brought against Borrower or any other
guarantor of the Guaranteed Obligations or whether Borrower or any
other guarantor of the Guaranteed Obligations is joined in any such
action or actions.
(d) Fraudulent Transfer Limitation. If, in any action to
enforce this Guaranty, any court of competent jurisdiction determines
that enforcement against Guarantor for the full amount of the
Guaranteed Obligations is not lawful under or would be subject to
avoidance under Section 548 of the United States Bankruptcy Code or any
applicable
E-3
provision of any comparable law of any state or other jurisdiction, the
liability of Guarantor under this Guaranty shall be limited to the
maximum amount lawful and not subject to such avoidance.
3. Representations and Warranties. Guarantor hereby represents and
warrants to Agent and the Banks as follows:
(a) Due Incorporation, Qualification, etc. Each of Guarantor
and Guarantor's Subsidiaries (i) is a corporation duly organized,
validly existing and in good standing under the laws of its
jurisdiction of incorporation; (ii) has the power and authority to own,
lease and operate its properties and carry on its business as now
conducted; and (iii) is duly qualified, licensed to do business and in
good standing as a foreign corporation in each jurisdiction where the
failure to be so qualified or licensed is reasonably likely to have a
Material Adverse Effect.
(b) Authority. The execution, delivery and performance by
Guarantor of each Credit Document executed, or to be executed, by
Guarantor and the consummation of the transactions contemplated thereby
(i) are within the corporate power of Guarantor; and (ii) have been
duly authorized by all necessary corporate actions on the part of
Guarantor.
(c) Enforceability. Each Loan Document in the nature of an
agreement executed, or to be executed, by Guarantor has been, or will
be, duly executed and delivered by Guarantor and constitutes, or will
constitute, a legal, valid and binding obligation of Guarantor,
enforceable against Guarantor in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights generally
and general principles of equity (regardless of whether considered in a
proceeding in equity or at law).
(d) Non-Contravention. The execution and delivery by Guarantor
of the Loan Documents to which Guarantor is a party and the performance
and consummation of the transactions contemplated thereby do not (i)
violate any Requirement of Law applicable to Guarantor; (ii) violate
any provision of, or result in the breach or the acceleration of, or
entitle any other Person to accelerate (whether after the giving of
notice or lapse of time or both), any Contractual Obligations of
Guarantor which could reasonably be expected to have a Material Adverse
Effect; or (iii) result in the creation or imposition of any Lien (or
the obligation to create or impose any Lien) upon any property, asset
or revenue of Guarantor (except such Liens as may be created in favor
of Agent pursuant to the Credit Agreement, this Guaranty or the other
Credit Documents).
(e) Approvals. No material consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Authority or other Person having jurisdiction over
Guarantor or any of Guarantor's Subsidiaries (including the
shareholders of any Person) is required in connection with the
execution and delivery of the Loan Documents executed by Guarantor or
the performance and consummation of the transactions contemplated
thereby except for consents, approvals, orders, authorizations,
E-4
registrations, declarations or filings required to be obtained or made
in accordance with the Loan Documents.
(f) Representations and Warranties Under Guarantor Credit
Agreement. Each of the representations and warranties of Guarantor and
its Subsidiaries set forth in Paragraph 4.01 of the Guarantor Credit
Agreement (other than the representations and warranties set forth in
Subparagraph 4.01(a) through (e) of the Guarantor Credit Agreement) and
in the other Guarantor Credit Documents are true and correct in all
material respects (except for representations and warranties expressly
made as of a specified date, which are true and correct as of such
date).
(g) Accuracy of Information Furnished. None of the Credit
Documents and none of the other certificates, statements or information
furnished to Agent or any Bank by or on behalf of Guarantor or any of
its Subsidiaries in connection with the Credit Documents or the
transactions contemplated thereby (taken together with all such Credit
Documents, certificates, statements or information) contains or will
contain any untrue statement of a material fact or omits or will omit
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
(it being understood by the Banks that the projections and forecasts
provided by Guarantor are not to be viewed as facts and that actual
results during the period or periods covered by such projections and
forecasts may differ from the projected or forecasted results).
(h) Year 2000 Compliance. Guarantor and its Subsidiaries have
reviewed or are reviewing the areas within their business and
operations which reasonably could be expected to be adversely affected
by, and have developed or are developing a program to address on a
timely and adequate basis, the Year 2000 Problem and intend to make
appropriate inquiry of material suppliers and vendors. Upon the
completion of such ongoing review and development of such a program,
Guarantor and its Subsidiaries believe that they will be able to timely
and adequately address the Year 2000 Problem such that it could not
reasonably be expected to have a Material Adverse Effect.
4. Covenants.
4.1. Affirmative Covenants. Until all obligations of Agent or any Bank
to extend credit to Borrower have terminated and all of the Guaranteed
Obligations (other than inchoate indemnity obligations of Borrower) have been
fully, finally and indefeasibly paid, unless Majority Banks shall otherwise
consent in writing, Guarantor will comply, and will cause compliance, with each
of the affirmative covenants set forth in Paragraph 5.01 of the Guarantor Credit
Agreement; provided, however, that (a) all references to "Borrower" therein
shall be deemed to be references to Guarantor, (b) all references to
"Subsidiaries" therein shall be deemed to be references to Subsidiaries of
Guarantor and (c) all references to "Administrative Agent" therein shall be
deemed to be references to Agent.
4.2. Negative Covenants. Until all obligations of Agent or any Bank to
extend credit to Borrower have terminated and all of the Guaranteed Obligations
(other than inchoate indemnity
E-5
obligations of Borrower) have been fully, finally and indefeasibly paid, unless
Majority Banks shall otherwise consent in writing, Guarantor will comply, and
will cause compliance, with each of the negative covenants set forth in
Paragraph 5.02 of the Guarantor Credit Agreement; provided, however, that (a)
all references to "Borrower" therein shall be deemed to be references to
Guarantor, (b) all references to "Subsidiaries" therein shall be deemed to be
references to Subsidiaries of Guarantor and (c) all references to
"Administrative Agent" therein shall be deemed to be references to Agent.
5. Authorizations, Waivers, Etc.
(a) Authorizations. Guarantor authorizes Agent and the Banks,
in their discretion, without notice to Guarantor, irrespective of any
change in the financial condition of Borrower, Guarantor or any other
guarantor of the Guaranteed Obligations since the date hereof, and
without affecting or impairing in any way the liability of Guarantor
hereunder, from time to time to:
(i) Create new Guaranteed Obligations and renew,
compromise, extend, accelerate or otherwise change the time
for payment or performance of, or otherwise amend or modify
the Credit Documents or change the terms of the Guaranteed
Obligations or any part thereof, including increase or
decrease of the rate of interest thereon;
(ii) Take and hold security for the payment or
performance of the Guaranteed Obligations and exchange,
enforce, waive or release any such security; apply such
security and direct the order or manner of sale thereof; and
purchase such security at public or private sale;
(iii) Otherwise exercise any right or remedy they may
have against Borrower, Guarantor, any other guarantor of the
Guaranteed Obligations or any security, including, without
limitation, the right to foreclose upon any such security by
judicial or nonjudicial sale;
(iv) Settle, compromise with, release or substitute
any one or more makers, endorsers or guarantors of the
Guaranteed Obligations; and
(v) Assign the Guaranteed Obligations, this Guaranty
or the other Credit Documents in whole or in part to the
extent provided in the Credit Agreement and the other Credit
Documents.
(b) Waivers. Guarantor hereby waives:
(i) Any right to require Agent or any Bank to (A)
proceed against Borrower or any other guarantor of the
Guaranteed Obligations, (B) proceed against or exhaust any
security received from Borrower, Guarantor or any other
guarantor of the Guaranteed Obligations or otherwise marshall
the assets of
E-6
Borrower, Guarantor or any other guarantor of the Guaranteed
Obligations or (C) pursue any other remedy in Agent's or any
Bank's power whatsoever;
(ii) Any defense arising by reason of the application
by Borrower of the proceeds of any borrowing;
(iii) Any defense resulting from the absence,
impairment or loss of any right of reimbursement, subrogation,
contribution or other right or remedy of Guarantor against
Borrower, any other guarantor of the Guaranteed Obligations or
any security, whether resulting from an election by Agent or
any Bank to foreclose upon security by nonjudicial sale, or
otherwise;
(iv) Any setoff or counterclaim of Borrower or any
defense which results from any disability or other defense of
Borrower or the cessation or stay of enforcement from any
cause whatsoever of the liability of Borrower (including,
without limitation, the lack of validity or enforceability of
any of the Credit Documents);
(v) Any defense based upon any law, rule or
regulation which provides that the obligation of a surety must
not be greater or more burdensome than the obligation of the
principal;
(vi) Until all obligations of Agent or any Bank to
extend credit to Borrower have terminated and all of the
Guaranteed Obligations have been fully, finally and
indefeasibly paid, any right of subrogation, reimbursement,
indemnification or contribution and other similar right to
enforce any remedy which Agent, the Banks or any other Person
now has or may hereafter have against Borrower on account of
the Guaranteed Obligations, and any benefit of, and any right
to participate in, any security now or hereafter received by
Agent, any Bank or any other Person on account of the
Guaranteed Obligations;
(vii) All presentments, demands for performance,
notices of non-performance, notices delivered under the Credit
Documents, protests, notice of dishonor, and notices of
acceptance of this Guaranty and of the existence, creation or
incurring of new or additional Guaranteed Obligations and
notices of any public or private foreclosure sale;
(viii) The benefit of any statute of limitations to
the extent permitted by law;
(ix) Any appraisement, valuation, stay, extension,
moratorium redemption or similar law or similar rights for
marshalling;
(x) Any right to be informed by Agent or any Bank of
the financial condition of Borrower or any other guarantor of
the Guaranteed Obligations or
E-7
any change therein or any other circumstances bearing upon the
risk of nonpayment or nonperformance of the Guaranteed
Obligations;
(xi) Until all obligations of Agent or any Bank to
extend credit to Borrower have terminated and all of the
Guaranteed Obligations have been fully, finally and
indefeasibly paid, any right to revoke this Guaranty;
(xii) Any defense arising from an election for the
application of Section 1111(b)(2) of the United States
Bankruptcy Code which applies to the Guaranteed Obligations;
(xiii) Any defense based upon any borrowing or grant
of a security interest under Section 364 of the United States
Bankruptcy Code; and
(xiv) Any right it may have to a fair value hearing
to determine the size of a deficiency judgment following any
foreclosure on any security for the Guaranteed Obligations.
Without limiting the scope of any of the foregoing provisions of this
Paragraph 5, Guarantor hereby further waives (A) all rights and
defenses arising out of an election of remedies by Agent or any Bank,
even though that election of remedies, such as a nonjudicial
foreclosure with respect to security for a Guaranteed Obligation, has
destroyed Guarantor's rights of subrogation and reimbursement against
Borrower by the operation of Section 580d of the Code of Civil
Procedure or otherwise, (B) all rights and defenses Guarantor may have
by reason of protection afforded to Borrower with respect to the
Guaranteed Obligations pursuant to the antideficiency or other laws of
California limiting or discharging the Guaranteed Obligations,
including, without limitation, Section 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure, and (C) all other rights and
defenses available to Guarantor by reason of Sections 2787 to 2855,
inclusive, to the extent such rights and defenses may be waived by
Guarantor pursuant to Section 2856 of the California Civil Code,
Section 2899 or Section 3433 of the California Civil Code or Section
3605 of the California Commercial Code.
(c) Financial Condition of Borrower, Etc. Guarantor is fully
aware of the financial condition and affairs of Borrower. Guarantor has
executed this Guaranty without reliance upon any representation,
warranty, statement or information concerning Borrower furnished to
Guarantor by Agent or any Bank and has, independently and without
reliance on Agent or any Bank, and based on such documents and
information as it has deemed appropriate, made its own appraisal of the
financial condition and affairs of Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations. Guarantor is in a position to obtain, and assumes full
responsibility for obtaining, any additional information about the
financial condition and affairs of Borrower and of other circumstances
affecting the risk of nonpayment or nonperformance of the Guaranteed
Obligations and will, independently and without reliance upon Agent or
any Bank, and based on such documents and information as it shall
E-8
deem appropriate at the time, continue to make its own appraisals and
decisions in taking or not taking action in connection with this
Guaranty.
6. Subordination. Guarantor hereby subordinates any and all debts,
liabilities and obligations owed to Guarantor by Borrower or any Subsidiary of
Borrower (the "Subordinated Obligations") to the Guaranteed Obligations as
provided in this Paragraph 6.
(a) Prohibited Payments, Etc. Until the occurrence of an Event
of Default or any default by Guarantor hereunder, Guarantor and its
Subsidiaries may receive payments from Borrower on account of
Subordinated Obligations. After the occurrence and during the
continuance of any Default or Event of Default or any default by
Guarantor hereunder (including the commencement and continuation of any
Insolvency Proceeding relating to Borrower), however, unless Agent
otherwise agrees, Guarantor shall not, and shall not permit any of its
Subsidiaries (other than Borrower) to, demand, accept or take any
action to collect any payment on account of the Subordinated
Obligations.
(b) Prior Payment of Guaranteed Obligations. In any Insolvency
Proceeding relating to Borrower, Guarantor agrees that Agent and the
Banks shall be entitled to receive payment of all Guaranteed
Obligations (including any and all Disallowed Post-Commencement
Interest and Expenses) before Guarantor or any of its Subsidiaries
(other than Borrower) receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance
of any Event of Default (including the commencement and continuation of
any Insolvency Proceeding relating to Borrower), Guarantor and its
Subsidiaries (other than Borrower) shall, if Agent so requests,
collect, enforce and receive payments on account of the Subordinated
Obligations as trustee for Agent and the Banks and deliver such
payments to Agent on account of the Guaranteed Obligations (including
any and all Disallowed Post-Commencement Interest and Expenses),
together with any necessary endorsements or other instruments of
transfer, but without reducing or affecting in any manner the liability
of Guarantor under the other provisions of this Guaranty.
(d) Agent Authorization. After the occurrence and during the
continuance of any Event of Default or any default by Guarantor
hereunder (including the commencement and continuation of any
Insolvency Proceeding relating to Borrower), Agent is authorized and
empowered (but without any obligation to so do), in its discretion, (i)
in the name of Guarantor and its Subsidiaries (other than Borrower), to
collect and enforce, and to submit claims in respect of, Subordinated
Obligations and to apply any amounts received thereon to the Guaranteed
Obligations (including any and all Disallowed Post-Commencement
Interest and Expenses), and (ii) to require Guarantor (A) to collect
and enforce, and to submit claims in respect of, Subordinated
Obligations and (B) to pay any amounts received on such obligations to
Agent for application to the Guaranteed Obligations (including any and
all Disallowed Post-Commencement Interest and Expenses).
E-9
7. Setoff.
(a) Setoff. In addition to any rights and remedies of the
Banks provided by law, each Bank shall have the right, with the prior
consent of Agent, but without prior notice to or consent from
Guarantor, any such notice or consent being expressly waived by
Guarantor to the extent permitted by applicable law, upon the
occurrence and during the continuance of an Event of Default, to
set-off and apply, or to authorize or direct such Bank to set-off and
apply, against any indebtedness, whether matured or unmatured, of
Guarantor to such Bank Party, any amount owing from such Bank Party to
Borrower, at or at any time after, the happening of any of the above
mentioned events, and as security for such indebtedness, Guarantor
hereby grants to Agent and each Bank a continuing security interest in
any and all deposits, accounts or moneys of Guarantor then or
thereafter maintained with such Bank. The aforesaid right of set-off
may be exercised by any Bank against Guarantor or against any trustee
in bankruptcy, debtor in possession, assignee for the benefit of
creditors, receiver or execution, judgment or attachment creditor of
Guarantor or against anyone else claiming through or against Guarantor
or such trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment
creditor, notwithstanding the fact that such right of set-off shall not
have been exercised by such Bank prior to the occurrence of an Event of
Default. Any Bank which exercises its right of setoff agrees promptly
to notify Guarantor after any such set-off and application made by such
Bank, provided that the failure to give such notice shall not affect
the validity of such set-off and application.
(b) Nonwaiver. No security interest or right of setoff shall
be deemed to have been waived by any act or conduct on the part of
Agent or any Bank or by any failure to exercise such right of setoff or
to enforce such security interest, or by any delay in so doing; and
every right of setoff and security interest shall continue in full
force and effect until such right of setoff or security interest is
specifically waived or released by an instrument in writing executed by
Agent.
8. Miscellaneous.
(a) Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or
upon Guarantor or Agent under this Guaranty or the other Credit
Documents shall be in writing and faxed, mailed or delivered to
Guarantor or Agent at its respective facsimile number or address set
forth below or (or to such other facsimile number or address for either
party as indicated in any notice given by that party to the other
party). All such notices and communications shall be effective (i) when
sent by any overnight courier service of recognized standing, on the
second Business Day following the deposit with such service; (ii) when
mailed, first class postage prepaid and addressed as aforesaid through
the United States Postal Service, upon receipt; (iii) when delivered by
hand, upon delivery; and (iv) when faxed, upon confirmation of receipt.
Guarantor: Quantum Corporation
E-10
500 McCarthy Boulevard
Milpitas, CA 95035l
Attn: Tony Lewis,
Vice President Finance & Treasurer
Telephone: (408) 894-4983
Facsimile: (408) 894-4562
E-11
Agent: Fleet National Bank
Mail Stop MA OF D07A
One Federal Street
Boston, MA 02110
Attn: Mike Barclay
Telephone: (617) 346-0057
Facsimile: (617) 346-0151
(b) Payments. Guarantor shall make all payments required
hereunder to Agent, or its order, at Agent's office located at the
address set forth in Subparagraph 8(a) hereof, or at such other office
as Agent may designate, on demand, in Dollars. If any amounts required
to be paid by Guarantor under this Guaranty are not paid when due,
Guarantor shall pay interest on the aggregate, outstanding balance of
such amounts from the date due until those amounts are paid in full at
a per annum rate equal to the Base Rate plus two percent (2.00%), such
rate to change from time to time as the Base Rate shall change.
(c) Expenses. Guarantor shall pay on demand (i) all reasonable
fees and expenses, including reasonable attorneys' fees and expenses,
incurred by Agent in connection with the preparation, execution and
delivery of, and the exercise of its duties under, this Guaranty and
the preparation, execution and delivery of amendments and waivers
hereunder and (ii) all reasonable fees and expenses, including
reasonable attorneys' fees and expenses, incurred by Agent and the
Banks in connection with the enforcement or attempted enforcement of
this Guaranty or any of the Guaranteed Obligations or in preserving any
of Agent's or the Banks' rights and remedies (including, without
limitation, all such fees and expenses incurred in connection with any
"workout" or restructuring affecting the Credit Documents or the
Guaranteed Obligations or any bankruptcy or similar proceeding
involving Guarantor, Borrower or any of their affiliates).
(d) Waivers; Amendments. This Guaranty may not be amended or
modified, nor may any of its terms be waived, except by written
instruments signed by Guarantor and Agent. Each waiver or consent under
any provision hereof shall be effective only in the specific instances
for the purpose for which given. No failure or delay on Agent's or any
Bank's part in exercising any right hereunder shall operate as a waiver
thereof or of any other right nor shall any single or partial exercise
of any such right preclude any other further exercise thereof or of any
other right.
(e) Assignments. This Guaranty shall be binding upon and inure
to the benefit of Agent, the Banks and Guarantor and their respective
successors and assigns; provided, however, that Guarantor may not
assign or transfer any of its rights and obligations under this
Guaranty without the prior written consent of Agent and the Banks, and,
provided, further, that Agent or any Bank may sell, assign and delegate
their respective rights and obligations hereunder only as permitted by
the Credit Agreement. All references in this Guaranty to any Person
shall be deemed to include all permitted successors and assigns of such
Person.
E-12
(f) Cumulative Rights, etc. The rights, powers and remedies of
Agent and the Banks under this Guaranty shall be in addition to all
rights, powers and remedies given to Agent and the Banks by virtue of
any applicable law, rule or regulation of any Governmental Authority,
the Credit Agreement, any other Credit Document or any other agreement,
all of which rights, powers, and remedies shall be cumulative and may
be exercised successively or concurrently without impairing Agent's or
any Bank's rights hereunder. Guarantor waives any right to require
Agent or any Bank to proceed against any Person or to exhaust any
Collateral or to pursue any remedy in Agent's or such Bank's power.
(g) Payments Free of Taxes, Etc. All payments made by
Guarantor under this Guaranty shall be made by Guarantor free and clear
of and without deduction for any and all present and future taxes,
levies, charges, deductions and withholdings. In addition, Guarantor
shall pay upon demand any stamp or other taxes, levies or charges of
any jurisdiction with respect to the execution, delivery, registration,
performance and enforcement of this Guaranty. If any taxes, levies,
charges or other amounts are required to be withheld from any amounts
payable to Agent or any Bank hereunder, the amounts so payable to Agent
or such Bank shall be increased to the extent necessary to yield to
Agent or such Bank (after payment of all such amounts) any such amounts
payable hereunder in the amounts specified in this Guaranty. Upon
request by Agent or any Bank, Guarantor shall furnish evidence
satisfactory to Agent or such Bank that all requisite authorizations
and approvals by, and notices to and filings with, governmental
authorities and regulatory bodies have been obtained and made and that
all requisite taxes, levies and charges have been paid.
(h) Partial Invalidity. If at any time any provision of this
Guaranty is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Guaranty nor the
legality, validity or enforceability of such provision under the law of
any other jurisdiction shall in any way be affected or impaired
thereby.
(i) Governing Law. This Guaranty shall be governed by and
construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
(j) Jury Trial. EACH OF GUARANTOR, THE BANKS AND AGENT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES
ALL RIGHT TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY
ACTION, PROCEEDING, OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS
GUARANTY.
(k) Limitation of Liability. NO CLAIM MAY BE MADE BY GUARANTOR
AGAINST AGENT, ANY BANK OR THE AFFILIATES, DIRECTORS, OFFICERS,
EMPLOYEES, ATTORNEYS OR AGENTS OF AGENT OR ANY BANK FOR ANY
E-13
SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY
CLAIM (WHETHER BASED UPON ANY BREACH OF CONTRACT, TORT, BREACH OF
STATUTORY DUTY OR ANY OTHER THEORY OF LIABILITY) ARISING OUT OF OR
RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS GUARANTY, OR ANY ACT,
OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH, AND GUARANTOR
HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY
SUCH DAMAGES, WHETHER OR NOT NOW ACCRUED AND WHETHER OR NOT KNOWN OR
SUSPECTED TO EXIST IN ITS FAVOR.
E-14
IN WITNESS WHEREOF, Guarantor has caused this Guaranty to be executed
as of the day and year first above written.
QUANTUM CORPORATION
By: /s/ Anthony H. Lewis, Jr.
-----------------------------------------------
Name: Anthony H. Lewis, Jr.
----------------------------------------
Title: Vice President, Finance & Treasurer
----------------------------------------
E-15
EXHIBIT F
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, dated as of the date set forth at the top of
Attachment 1 hereto, is by and among:
(1) The bank designated under item A of Attachment 1 hereto as
the Assignor Bank ("Assignor Bank"); and
(2) Each bank designated under item B of Attachment 1 hereto
as an Assignee Bank (individually, an "Assignee Bank").
RECITALS
A. Assignor Bank is one of the banks which is a party to the Credit
Agreement dated as of December 18, 1998, among ATL Products, Inc. ("Borrower"),
the financial institutions listed in Schedule I to the Credit Agreement (the
"Banks"), and Fleet National Bank, as agent for the Banks (in such capacity,
"Agent"). (Such Credit Agreement, as amended, supplemented or otherwise modified
in accordance with its terms from time to time to be referred to herein as the
"Credit Agreement").
B. Assignor Bank wishes to sell, and Assignee Bank wishes to purchase,
a portion of Assignor Bank's rights under the Credit Agreement pursuant to
Subparagraph 8.05(c) of the Credit Agreement.
AGREEMENT
Now, therefore, the parties hereto hereby agree as follows:
1. Definitions. Except as otherwise defined in this Assignment
Agreement, all capitalized terms used herein and defined in the Credit Agreement
have the respective meanings given to those terms in the Credit Agreement.
2. Sale and Assignment. Subject to the terms and conditions of this
Assignment Agreement, Assignor Bank hereby agrees to sell, assign and delegate
to each Assignee Bank and each Assignee Bank hereby agrees to purchase, accept
and assume an undivided interest in and share of Assignor Bank's rights,
obligations and duties under the Credit Agreement and the other Credit Documents
equal to the Proportionate Share set forth under the caption "Proportionate
Share" opposite such Assignee Bank's name on Attachment 1 hereto.
3. Assignment Effective Upon Notice. Upon (a) receipt by Agent of five
(5) counterparts of this Assignment Agreement (to each of which is attached a
fully completed Attachment 1), each of which has been executed by Assignor Bank
and each Assignee Bank (and, if any Assignee Bank is not then a Bank, by
Borrower and Agent, (b) payment to Agent of the registration and processing fee
specified in Subparagraph 8.05(e) by Assignor Bank, Agent will
1
transmit to Borrower, Assignor Bank and each Assignee Bank an Assignment
Effective Notice substantially in the form of Attachment 2 hereto (an
"Assignment Effective Notice"). Such Assignment Effective Notice shall set forth
the date on which the assignment affected by this Assignment Agreement shall
become effective (the "Assignment Effective Date"), which date shall be the
fifth Business Day following the date of such Assignment Effective Notice.
4. Assignment Effective Date. At or before 12:00 noon (local time of
Assignor Bank) on the Assignment Effective Date, each Assignee Bank shall pay to
Assignor Bank, in immediately available or same day funds, an amount equal to
the purchase price, as agreed between Assignor Bank and such Assignee Bank (the
"Purchase Price"), for the Proportionate Share purchased by such Assignee Bank
hereunder. Effective upon receipt by Assignor Bank of the Purchase Price payable
by each Assignee Bank, the sale, assignment and delegation to such Assignee Bank
of such Proportionate Share as described in Paragraph 2 hereof shall become
effective.
5. Payments After the Assignment Effective Date. Assignor Bank and each
Assignee Bank hereby agree that Agent shall, and hereby authorize and direct
Agent to, allocate amounts payable under the Credit Agreement and the other
Credit Documents as provided in the Credit Agreement in accordance with its
appropriate Proportionate Share. Assignor Bank and each Assignee Bank have made
separate arrangements for (i) the payment by Assignor Bank to such Assignee Bank
of any principal, interest, fees or other amounts previously received or
otherwise payable to Assignor Bank hereunder if Assignor Bank and such Assignee
Bank have otherwise agreed that such Assignee Bank is entitled to receive any
such amounts and (ii) the payment by such Assignee Bank to Assignor Bank of any
principal, interest, fees or other amounts payable to such Assignee Bank
hereunder if Assignor Bank and such Assignee Bank have otherwise agreed that
Assignor Bank is entitled to receive any such amounts.
6. Delivery of Notes. On or prior to the Assignment Effective Date,
Assignor Bank will deliver to Agent the Note payable to Assignor Bank. On or
prior to the Assignment Effective Date, Borrower will deliver to Agent a Note
for each Assignee Bank and Assignor Bank, in each case a in principal amount
reflecting, in accordance with the Credit Agreement, their respective Commitment
(as adjusted pursuant to this Assignment Agreement). As provided in Subparagraph
8.05(c) of the Credit Agreement, each such new Note shall be dated the Closing
Date and otherwise be in the form of Note replaced thereby (provided that
Borrower shall not be obligated to pay any principal paid or interest accrued
prior to the effective date of this assignment to the Assignee Bank). Promptly
after the Assignment Effective Date, Agent will send to each of Assignor Bank
and the Assignee Banks its new Note and will send to Borrower the superseded
Note of Assignor Bank, marked "replaced."
7. Delivery of Copies of Credit Documents. Concurrently with the
execution and delivery hereof, Assignor Bank will provide to each Assignee Bank
(if it is not already a Bank party to the Credit Agreement) conformed copies of
all documents delivered to Assignor Bank on or prior to the Closing Date in
satisfaction of the conditions precedent set forth in the Credit Agreement.
2
8. Further Assurances. Each of the parties to this Assignment Agreement
agrees that at any time and from time to time upon the written request of any
other party, it will execute and deliver such further documents and do such
further acts and things as such other party may reasonably request in order to
effect the purposes of this Assignment Agreement.
9. Further Representations, Warranties and Covenants. Assignor Bank and
each Assignee Bank further represent and warrant to and covenant with each
other, Agent and the Banks as follows:
(a) Other than the representation and warranty that it is the
legal and beneficial owner of the interest being assigned hereby free
and clear of any adverse claim, Assignor Bank makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with
the Credit Agreement or the other Credit Documents or the execution,
legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement or the other Credit Documents furnished.
(b) Assignor Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of
Borrower or any of its obligations under the Credit Agreement or any
other Credit Documents.
(c) Each Assignee Bank confirms that it has received a copy of
the Credit Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to
enter into this Assignment Agreement.
(d) Each Assignee Bank will, independently and without
reliance upon any Agent, Assignor Bank or any other Bank and based upon
such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement and the other Credit Documents.
(e) Each Assignee Bank appoints and authorizes Agent to take
such action as Agent on its behalf and to exercise such powers under
the Credit Agreement and the other Credit Documents as are delegated to
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto, all in accordance with Section VII of the Credit
Agreement.
(f) Each Assignee Bank agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Credit Agreement and the other Credit Documents are required to
be performed by it as a Bank.
(g) Attachment 1 hereto sets forth the revised Proportionate
Share of Assignor Bank and each Assignee Bank as well as administrative
information with respect to each Assignee Bank.
10. Effect of this Assignment Agreement. On and after the Assignment
Effective Date, (a) each Assignee Bank shall be a Bank with a Proportionate
Share as set forth on Attachment 1 hereto and shall have the rights, duties and
obligations of such a Bank under the
3
Credit Agreement and the other Credit Documents and (b) Assignor Bank shall be a
Bank with a Proportionate Share as set forth on Attachment 1 hereto, or, if the
Proportionate Share of Assignor Bank has been reduced to 0%, Assignor Bank shall
cease to be a Bank.
11. Miscellaneous. This Assignment Agreement shall be governed by, and
construed in accordance with, the laws of the State of California. Paragraph
headings in this Assignment Agreement are for convenience of reference only and
are not part of the substance hereof.
4
IN WITNESS WHEREOF, the parties hereto have caused this Assignment
Agreement to be executed by their respective duly authorized officers as of the
date set forth in Attachment 1 hereto.
_______________________________________________,
as Assignor Bank
By: ____________________________________________
Name: ___________________________________
Title: __________________________________
_______________________________________________,
as an Assignee Bank
By: ____________________________________________
Name: ___________________________________
Title: __________________________________
_______________________________________________,
as an Assignee Bank
By: ____________________________________________
Name: ___________________________________
Title: __________________________________
_______________________________________________,
as an Assignee Bank
By: ____________________________________________
Name: ___________________________________
Title: __________________________________
5
CONSENTED TO AND ACKNOWLEDGED BY:
ATL PRODUCTS, INC.
By: _________________________________________________
Name: ________________________________________
Title:________________________________________
FLEET NATIONAL BANK,
As Agent
By: ________________________________________________
Name: _______________________________________
Title: _______________________________________
ACCEPTED FOR RECORDATION
IN REGISTER:
FLEET NATIONAL BANK,
As Agent
By: _________________________________________________
Name: ________________________________________
Title:________________________________________
6
ATTACHMENT 1
TO ASSIGNMENT AGREEMENT
NAMES, ADDRESSES AND PROPORTIONATE SHARES
OF ASSIGNOR BANK AND ASSIGNEE BANKS AFTER ASSIGNMENT
--------------, ----
Portionate
Share*
----------
A. ASSIGNOR BANK
------------------------------ -----%
Applicable Lending Office:
------------------------------
------------------------------
------------------------------
------------------------------
Address for notices:
------------------------------
------------------------------
------------------------------
------------------------------
Telephone No: __________
Facsimile No: __________
Wiring Instructions:
------------------------------
------------------------------
B. ASSIGNEE BANKS
------------------------------ -----%
Applicable Lending Office:
------------------------------
------------------------------
------------------------------
------------------------------
F[1]-1
* To be expressed by a percentage rounded to the eighth-digit to the right of
the decimal point.
Portionate
Share*
----------
Address for notices:
------------------------------
------------------------------
------------------------------
------------------------------
Telephone No: __________
Facsimile No: __________
Wiring Instructions:
------------------------------ -----%
------------------------------
------------------------------
Applicable Lending Office:
------------------------------
------------------------------
------------------------------
------------------------------
Address for notices:
------------------------------
------------------------------
------------------------------
------------------------------
Telephone No: __________
Facsimile No: __________
Wiring Instructions:
------------------------------
------------------------------
F[1]-2
ATTACHMENT 2
TO ASSIGNMENT AGREEMENT
FORM OF
ASSIGNMENT EFFECTIVE NOTICE
The undersigned, as agent for the banks under the Credit Agreement,
dated as of December 18, 1998 (as amended from time to time) among ATL Products,
Inc. ("Borrower"), the financial institutions parties thereto (the "Banks") and
Fleet National Bank, as agent for the Banks (in such capacity, "Agent"),
acknowledges receipt of five executed counterparts of a completed Assignment
Agreement, a copy of which is attached hereto. [Note: Attach copy of Assignment
Agreement.] Terms defined in such Assignment Agreement are used herein as
therein defined.
1. Pursuant to such Assignment Agreement, you are advised that the
Assignment Effective Date will be __________ [Insert fifth business day
following date of Assignment Effective Notice].
2. Pursuant to such Assignment Agreement, Assignor Bank is required to
deliver to Agent on or before the Assignment Effective Date the Note payable to
Assignor Bank.
3. Pursuant to such Assignment Agreement, Borrower is required to
deliver to Agent on or before the Assignment Effective Date the following Notes,
each dated _________________ [Insert appropriate date]:
[Describe each new Note for Assignor Bank and each Assignee Bank as to
principal amount.]
4. Pursuant to such Assignment Agreement, each Assignee Bank is
required to pay its Purchase Price to Assignor Bank at or before 12:00 Noon
(local time of Assignor Bank) on the Assignment Effective Date in immediately
available funds.
Very truly yours,
FLEET NATIONAL BANK,
as Agent
By: ________________________________________
Name: _______________________________________
Title: _____________________________________
F[2]-1