Exhibit 10.25
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Credit Agreement
(3-Year)
Dated as of April 19, 2000
Amended and Restated as of the Restatement Date
among
Quantum Corporation
and
Bank of America, N.A.,
as Administrative Agent
and
Letter of Credit Issuing Lender,
and
Fleet National Bank as Syndication Agent,
and
The Bank of Nova Scotia as Documentation Agent
and
The Other Financial
Institutions Party Hereto
Banc of America Securities LLC,
as
Sole Arranger and Sole Book Manager
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TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS AND ACCOUNTING TERMS............................................................... 1
1.01 Defined Terms................................................................................. 1
1.02 Use of Certain Terms.......................................................................... 24
1.03 Accounting Terms.............................................................................. 25
1.04 Rounding...................................................................................... 25
1.05 Exhibits and Schedules........................................................................ 25
1.06 References to Agreements and Laws............................................................. 25
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT....................................................... 25
2.01 Loans......................................................................................... 25
2.02 Borrowings, Conversions and Continuations of Loans............................................ 26
2.03 Letters of Credit............................................................................. 26
2.04 Prepayments................................................................................... 31
2.05 Reduction or Termination of Commitments....................................................... 31
2.06 Principal and Interest........................................................................ 31
2.07 Fees.......................................................................................... 32
2.08 Computation of Interest and Fees.............................................................. 33
2.09 Making Payments............................................................................... 33
2.10 Funding Sources............................................................................... 34
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY......................................................... 34
3.01 Taxes......................................................................................... 34
3.02 Illegality.................................................................................... 35
3.03 Inability to Determine Rates.................................................................. 36
3.04 Increased Cost and Reduced Return; Capital Adequacy........................................... 36
3.05 Breakfunding Costs............................................................................ 37
3.06 Matters Applicable to all Requests for Compensation........................................... 37
3.07 Survival...................................................................................... 37
SECTION 4. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT................................................... 37
4.01 Conditions of Initial Extension of Credit..................................................... 37
4.02 Conditions to all Extensions of Credit........................................................ 39
SECTION 4A. CONDITIONS PRECEDENT TO AMENDED AND RESTATED AGREEMENT........................................ 39
4A.01 Conditions of Effectiveness of Amended and Restated Agreement................................. 39
SECTION 5. REPRESENTATIONS AND WARRANTIES................................................................. 41
5.01 Existence and Qualification; Power; Compliance with Laws...................................... 41
5.02 Power; Authorization; Enforceable Obligations................................................. 41
5.03 No Legal Bar.................................................................................. 41
5.04 Financial Statements; No Material Adverse Effect.............................................. 41
5.05 Litigation.................................................................................... 42
5.06 No Default..................................................................................... 42
5.07 Ownership of Property; Liens................................................................... 42
5.08 Taxes.......................................................................................... 42
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act................. 43
5.10 ERISA Compliance............................................................................... 43
5.11 Intangible Assets.............................................................................. 44
5.12 Compliance With Laws........................................................................... 44
5.13 Environmental Compliance....................................................................... 44
5.14 Insurance...................................................................................... 44
5.15 Swap Obligations............................................................................... 44
5.16 Maxtor Merger Matters.......................................................................... 44
5.17 Snap Spin-Off Matters.......................................................................... 45
5.18 Disclosure..................................................................................... 45
SECTION 6. AFFIRMATIVE COVENANTS........................................................................... 46
6.01 Financial Statements........................................................................... 46
6.02 Certificates, Notices and Other Information.................................................... 47
6.03 Payment of Taxes............................................................................... 48
6.04 Preservation of Existence...................................................................... 48
6.05 Maintenance of Properties...................................................................... 48
6.06 Maintenance of Insurance....................................................................... 49
6.07 Compliance With Laws........................................................................... 49
6.08 Inspection Rights.............................................................................. 49
6.09 Keeping of Records and Books of Account........................................................ 49
6.10 Compliance with ERISA.......................................................................... 49
6.11 Compliance With Agreements..................................................................... 49
6.12 Use of Proceeds................................................................................ 49
6.13 Maxtor Merger and Snap Spin-Off Matters........................................................ 49
SECTION 7. NEGATIVE COVENANTS.............................................................................. 50
7.01 Indebtedness................................................................................... 50
7.02 Liens.......................................................................................... 52
7.03 Fundamental Changes............................................................................ 53
7.04 Dispositions................................................................................... 53
7.05 Investments.................................................................................... 54
7.06 Restricted Payments............................................................................ 55
7.07 ERISA.......................................................................................... 55
7.08 Change in Nature of Business................................................................... 56
7.09 Transactions with Affiliates................................................................... 56
7.10 Use of Proceeds................................................................................ 56
7.11 Certain Indebtedness Payments, Etc............................................................. 56
7.12 Financial Covenants............................................................................ 57
7.13 Accounting Changes............................................................................. 59
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.................................................................. 59
8.01 Events of Default.............................................................................. 59
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8.02 Certain Financial Covenant Defaults.......................................................... 63
8.03 Remedies Upon Event of Default............................................................... 63
SECTION 9. ADMINISTRATIVE AGENT.......................................................................... 65
9.01 Appointment and Authorization of Administrative Agent........................................ 65
9.02 Delegation of Duties......................................................................... 65
9.03 Liability of Administrative Agent............................................................ 65
9.04 Reliance by Administrative Agent............................................................. 66
9.05 Notice of Default............................................................................ 67
9.06 Credit Decision; Disclosure of Information by Administrative Agent........................... 67
9.07 Indemnification of Administrative Agent...................................................... 67
9.08 Administrative Agent in Individual Capacity.................................................. 68
9.09 Successor Administrative Agent............................................................... 68
9.10 Syndication Agent; Documentation Agent....................................................... 69
SECTION 10. MISCELLANEOUS................................................................................ 69
10.01 Amendments; Consents......................................................................... 69
10.02 Transmission and Effectiveness of Communications and Signatures.............................. 70
10.03 Attorney Costs, Expenses and Taxes........................................................... 71
10.04 Binding Effect; Assignment................................................................... 71
10.05 Set-off...................................................................................... 73
10.06 Sharing of Payments.......................................................................... 73
10.07 No Waiver; Cumulative Remedies............................................................... 74
10.08 Usury........................................................................................ 74
10.09 Counterparts................................................................................. 75
10.10 Integration.................................................................................. 75
10.11 Nature of Lenders' Obligations............................................................... 75
10.12 Survival of Representations and Warranties................................................... 75
10.13 Indemnity by Borrower........................................................................ 75
10.14 Nonliability of Lenders...................................................................... 76
10.15 No Third Parties Benefited................................................................... 77
10.16 Severability................................................................................. 77
10.17 Confidentiality.............................................................................. 77
10.18 Further Assurances........................................................................... 78
10.19 Headings..................................................................................... 78
10.20 Time of the Essence.......................................................................... 78
10.21 Foreign Lenders.............................................................................. 78
10.22 Removal and Replacement of Lenders........................................................... 79
10.23 Governing Law................................................................................ 80
10.24 Waiver of Right to Trial by Jury............................................................. 80
10.25 Entire Agreement............................................................................. 80
10.26 Effect of Amendment and Restatement.......................................................... 81
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EXHIBITS
Form of
A Request for Extension of Credit
B Compliance Certificate
C Form of Note
D Notice of Assignment and Acceptance
SCHEDULES
1.01 HDD Convertible Debt Portion; Maxtor Merger Documents; Snap Spin-
Off Documents
2.01 Commitments and Pro Rata Shares
5.05 Litigation
7.01 Existing Indebtedness and Liens
7.13 Subordination Provisions
10.02 Offshore and Domestic Lending Offices, Addresses for Notices
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CREDIT AGREEMENT
This CREDIT AGREEMENT ("Agreement") is entered into as of April 19,
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2000 and amended and restated as of the Restatement Date (as defined herein), by
and among Quantum Corporation, a Delaware corporation ("Borrower"), each lender
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from time to time party hereto (collectively, "Lenders" and individually, a
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"Lender"), and BANK OF AMERICA, N.A., as Administrative Agent and Issuing
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Lender.
RECITALS
Borrower, Administrative Agent and certain Lenders are party to a
Credit Agreement (3-Year) dated as of April 19, 2000 (the "April 2000 Credit
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Agreement"), pursuant to which the Lenders have provided a revolving line of
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credit under the terms and conditions set forth therein.
In conjunction with the consummation of the Maxtor Merger (as defined
herein below), Borrower has requested, and Administrative Agent and Lenders have
agreed, to amend and restate the April 2000 Credit Agreement in accordance with
the terms and provisions and subject to the conditions set forth herein.
In consideration of the mutual covenants and agreements herein
contained, the parties hereto covenant and agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms. As used in this Agreement, the following terms
shall have the meanings set forth below:
"Acquisitions" means any transaction or series of related transactions
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for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets of a Person, or of any line of
business or any division of a Person, (b) the acquisition of in excess of 50% of
the capital stock, partnership interests or equity of any Person, or otherwise
causing any Person to become a Subsidiary, or (c) a merger or consolidation or
any other combination with another Person (other than a Person that is a
Subsidiary).
"Administrative Agent" means Bank of America, N.A., in its capacity as
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administrative agent under any of the Loan Documents, or any successor
administrative agent.
"Administrative Agent's Office" means Administrative Agent's address
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and, as appropriate, account as set forth on Schedule 10.02, or such other
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address or account as Administrative Agent hereafter may designate by written
notice to Borrower and Lenders.
"Administrative Agent-Related Persons" means Administrative Agent
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(including any successor agent), together with its Affiliates (including, in the
case of Bank of America in its
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capacity as Administrative Agent, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Affiliate" means any Person directly or indirectly controlling,
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controlled by, or under direct or indirect common control with, another Person.
A Person shall be deemed to be "controlled by" any other Person if such other
Person possesses, directly or indirectly, power (a) to vote 10% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors or managing general partners; or (b) to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise; provided that Persons, other than Subsidiaries, in which Quantum
Technology Ventures holds Equity Securities shall not be "Affiliates" for
purposes of this definition.
"Agreement" means this Credit Agreement, as amended, restated,
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extended, supplemented or otherwise modified in writing from time to time.
"Applicable Amount" means the following amounts per annum, based upon
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the Leverage Ratio as set forth in the most recent Compliance Certificate
received by Administrative Agent pursuant to Section 6.02(a), provided, however,
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that, until the six month anniversary of the Closing Date, such amounts shall be
fixed as indicated for pricing level 3 set forth below:
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Applicable Amount (in basis points per annum)
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Applicable LIBOR Applicable Base
Level Leverage Ratio Margin Rate Margin Commitment fee Utilization Fee
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1 *0.75:1 112.50 12.50 25.00 12.50
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2 **0.75:1 but *1.00:1 125.00 25.00 27.50 12.50
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3 **1.00:1 but *1.25:1 137.50 37.50 30.00 12.50
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4 **1.25:1 but *1.50:1 150.00 50.00 32.50 12.50
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5 **1.50 175.00 75.00 37.50 12.50
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The Applicable Amount shall be in effect from the date the most recent
Compliance Certificate is received by Administrative Agent to but excluding the
date the next Compliance Certificate is received.
"Applicable Payment Date" means, (a) as to any Offshore Rate Loan, the
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last day of the relevant Interest Period, any date that such Loan is prepaid or
converted in whole or in part and the Maturity Date; provided, however, that if
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any Interest Period for an Offshore Rate Loan exceeds three months, interest
shall also be paid on the date which falls every three months after the
beginning of such Interest Period; and (b) as to any other Obligations, the last
Business Day of each calendar quarter and the Maturity Date; provided, further,
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that interest accruing at the Default Rate shall be payable from time to time
upon demand of Administrative Agent.
"Applicable Time" means California time.
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"April 2000 Credit Agreement" has the meaning set forth in the recitals
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hereto.
"Arranger" means Banc of America Securities LLC, in its capacity as
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sole arranger and sole book manager.
* Less than
** More than or equals to
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"Assignment and Acceptance" means an Assignment and Acceptance
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substantially in the form of Exhibit D.
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"Attorney Costs" means and includes all fees and disbursements of any
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law firm or other external counsel and the allocated cost of internal legal
services and all disbursements of internal counsel.
"Audited Financial Statements" means the audited consolidated balance
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sheet of Borrower and its Subsidiaries for the fiscal year ended March 31, 2000,
and the related consolidated statements of income and cash flows for such fiscal
year of Borrower.
"Bank of America" means Bank of America, N.A.
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"Base Rate" means a fluctuating rate per annum equal to the higher of
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(a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest in effect
for such day as publicly announced from time to time by Bank of America as its
"prime rate." Such rate is a rate set by Bank of America based upon various
factors including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for pricing some
loans, which may be priced at, above, or below such announced rate. Any change
in such rate announced by Bank of America shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Loan" means a Loan made hereunder and specified to be a Base
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Rate Loan in accordance with Section 2.
"Borrower" has the meaning set forth in the introductory paragraph
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hereto.
"Borrowing" and "Borrow" each mean a borrowing of Loans hereunder.
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"Borrowing Date" means the date that a Loan is made, which shall be a
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Business Day.
"Business Day" means any day other than a Saturday, Sunday, or other
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day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where Administrative Agent's Office is located and,
if such day relates to any Offshore Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the offshore
Dollar interbank market.
"Capital Leases" means any and all leases under which certain
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obligations are required to be capitalized on the books of a lessee in
accordance with GAAP.
"Change of Control" means, with respect to any Person, an event or
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series of events by which:
(a) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended, but
excluding any employee benefit plan of such person or its subsidiaries,
or any person or entity acting in its capacity as trustee, agent or
other fiduciary or administrator of any such plan), becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Securities
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Exchange Act of 1934, as amended, except that such a person or group
shall be deemed to have "beneficial ownership" of all securities that
such person or group has the right to acquire (such right, "option
right"), whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of 40% or more of the
equity securities of such Person entitled to vote for members of the
board of directors or equivalent governing body on a partially-diluted
basis (i.e., taking into account all such securities that such person
or group has the right to acquire pursuant to any option right); or
(b) during any period of 12 consecutive months, a majority of
the members of the board of directors or other equivalent governing
body of such Person cease to be composed of individuals (i) who were
members of that board or equivalent governing body on the first day of
such period, (ii) whose election or nomination to that board or
equivalent governing body was approved by individuals referred to in
clause (i) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body or (iii) whose election or nomination to that board or other
equivalent governing body was approved by individuals referred to in
clauses (i) and (ii) above constituting at the time of such election or
nomination at least a majority of that board or equivalent governing
body.
"Closing Date" means the date all the conditions precedent in Section
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4.01 are satisfied or waived in accordance with Section 4.01.
"Code" means the Internal Revenue Code of 1986.
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"Commitment" means, for each Lender, the amount set forth opposite such
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Lender's name on Schedule 2.01, as such amount may be reduced or adjusted from
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time to time in accordance with the terms of this Agreement (collectively, the
"combined Commitments").
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"Compliance Certificate" means a certificate substantially in the form
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of Exhibit B, properly completed and signed by a Responsible Officer of
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Borrower.
"Consolidated EBITDA" means, for any period, for Borrower and its
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Subsidiaries on a consolidated basis, an amount equal to the sum of (a)
Consolidated Net Income, (b) Consolidated Interest Charges, (c) the amount of
taxes, based on or measured by income, used or included in the determination of
such Consolidated Net Income, (d) the amount of depreciation and amortization
expense deducted in determining such Consolidated Net Income, (e) the amount
written off in connection with In-Process Research & Development related to the
Meridian Acquisition in the second fiscal quarter of year 2000, (f) the charge
taken in the fourth fiscal quarter of year 2000 in connection with DSS and (g)
the amount of any charges taken in connection with In-Process Research &
Development associated with Acquisitions (other than any charge included in
clause (e) above) provided that (i) any such charges are taken during the fiscal
quarter in which the related Acquisition was completed, and (ii) for purposes of
calculating In-Process Research & Development charges under this clause (g), the
aggregate amount of any such charges does not exceed $100,000,000 from and after
the Closing Date; provided that in respect of any period (or partial period)
prior to the Maxtor Merger Effective Time, "Consolidated EBITDA" shall be
determined solely in respect of the DSS Business on a stand-alone basis, based
upon the then-current DSS Combined Financial Statements.
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"Consolidated Funded Indebtedness" means, as of any date of
--------------------------------
determination, for Borrower and its Subsidiaries on a consolidated basis, the
sum of (a) the outstanding principal amount of all obligations and liabilities,
whether current or long-term, for borrowed money (including Obligations to the
extent consisting of principal), (b) that portion of obligations with respect to
Capital Leases that would in conformity with GAAP be capitalized on the
consolidated balance sheet of Borrower and its Subsidiaries, and (c) Synthetic
Lease Obligations; provided that in respect of any date prior to the Maxtor
Merger Effective Time, "Consolidated Funded Indebtedness" shall be determined
solely in respect of the DSS Business on a stand-alone basis, based upon the
then-current DSS Combined Financial Statements.
"Consolidated Interest Charges" means, for any period, for Borrower and
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its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, fees, charges and related expenses payable by Borrower and its
Subsidiaries in connection with borrowed money (including capitalized interest)
or in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, (b) the portion of rent
payable by Borrower and its Subsidiaries with respect to such period under
Capital Leases that is treated as interest in accordance with GAAP and (c) the
portion of rent under any Synthetic Lease Obligation that would be treated as
interest in accordance with GAAP if the Synthetic Lease Obligation were treated
as a Capital Lease under GAAP; provided that in respect of any date prior to the
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Maxtor Merger Effective Time, "Consolidated Interest Charges" shall be
determined solely in respect of the DSS Business on a stand-alone basis, based
upon the then-current DSS Combined Financial Statements.
"Consolidated Net Income" means, for any period, for Borrower and its
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Subsidiaries on a consolidated basis, the net income of Borrower and its
Subsidiaries from continuing operations after extraordinary items for that
period and after excluding the Maxtor Merger Net Charge in the case of the
period in which it is recorded; provided that in respect of any period (or
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partial period) prior to the Maxtor Merger Effective Time, "Consolidated Net
Income" shall be determined solely in respect of the DSS Business on a
stand-alone basis, based upon the then-current DSS Combined Financial
Statements.
"Consolidated Tangible Net Worth" means, as of any date of
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determination, for Borrower and its Subsidiaries on a consolidated basis,
Shareholders' Equity of Borrower and its Subsidiaries on that date minus the
Intangible Assets of Borrower and its Subsidiaries on that date; provided that
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in respect of any date prior to the Maxtor Merger Effective Time, "Consolidated
Tangible Net Worth" shall be determined solely in respect of the DSS Business on
a stand-alone basis, based upon the then-current DSS Combined Financial
Statements.
"Continuation" and "Continue" mean, with respect to any Offshore Rate
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Loan, the continuation of such Offshore Rate Loan as an Offshore Rate Loan on
the last day of the Interest Period for such Loan.
"Contractual Obligation" means, as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or undertaking to
which such Person is a party or by which it or any of its property is bound.
"Conversion" and "Convert" mean, with respect to any Loan, the
conversion of such Loan from or into another type of Loan.
"Convertible Subordinated Debentures" means the 7% Convertible
Subordinated Notes due 2004 issued by Borrower pursuant to the Indenture dated
as of August 1, 1997 and the Supplemental Indenture dated as of August 1, 1997
between Borrower and LaSalle National Trust Company, N.A., as Trustee.
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"Conversion" and "Convert" mean, with respect to any Loan, the conversion
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of such Loan from or into another type of Loan.
"Convertible Subordinated Debentures" means the 7% Convertible Subordinated
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Notes due 2004 issued by Borrower pursuant to the Indenture dated as of August
1, 1997 and the Supplemental Indenture dated as of August 1, 1997 between
Borrower and LaSalle National Trust Company, N.A., as Trustee.
"Debtor Relief Laws" means the Bankruptcy Code of the United States of
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America, and all other liquidation, conservatorship, bankruptcy, assignment for
the benefit of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States of America or
other applicable jurisdictions from time to time in effect affecting the rights
of creditors generally.
"Default" means any event that, with the giving of any notice, the passage
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of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus the
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Applicable Amount, if any, applicable to Base Rate Loans plus 2% per annum;
provided, however, that with respect to an Offshore Rate Loan, the Default Rate
shall be an interest rate equal to the interest rate (including any Applicable
Amount) otherwise applicable to such Loan plus 2% per annum, in each case to the
fullest extent permitted by applicable Laws.
"Designated Deposit Account" means a deposit account maintained by Borrower
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with Bank of America, as from time to time designated by Borrower to
Administrative Agent by Requisite Notice.
"Disposition" or "Dispose" means the sale, transfer, License Disposition or
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other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal with
or without recourse of any notes or accounts receivable or any rights and claims
associated therewith.
"Dollar" and "$" means lawful money of the United States of America.
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"DSS" means DLT and Storage Systems Group., a reportable business segment
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of Borrower, as indicated in Borrower's quarterly report filed with the
Securities and Exchange Commission on form 10-Q on or about February 14, 2001.
"DSS Business" means, collectively, all businesses and activities of the
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Borrower and its Subsidiaries, other than the HDD Business.
"DSS Combined Financial Statements" means, collectively, the annual or
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quarterly (as the case may be) condensed combined balance sheet and statements
of income and cash flow in respect of DSS on a stand-alone basis, prepared in a
manner and in a form consistent with those contained in Borrower's 2000 10-K and
December 31, 2000 10-Q filings that were filed with the Securities and Exchange
Commission on or about June 26, 2000 and February 14, 2000, respectively.
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"Eligible Assignee" means (a) a financial institution organized under the
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laws of the United States, or any state thereof, and having a combined capital
and surplus of at least $100,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country, and
having a combined capital and surplus of at least $100,000,000, provided that
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such bank is acting through a branch or agency located in the United States; (c)
a Person that is primarily engaged in the business of commercial banking and
that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a
Lender is a Subsidiary, or (iii) a Person of which a Lender is a Subsidiary; (d)
another Lender; (e) any other entity which is an "accredited investor" (as
defined in Regulation D under the Securities Act of 1933, as amended) which
extends credit or buys loans as one of its businesses, including but not limited
to, insurance companies, mutual funds and lease financing companies; or (f)
other lenders or institutional investors consented to in writing in advance by
Administrative Agent and Borrower. Neither Borrower nor any Affiliate of
Borrower shall be an Eligible Assignee.
"Employee Benefit Plan" means any employee benefit plan within the meaning
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of section 3(3) of ERISA, maintained or contributed to by Borrower or any ERISA
Affiliate, other than a Multiemployer Plan.
"Environmental Laws" means all Laws relating to environmental, health,
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safety and land use matters applicable to any property.
"Equity Securities" of any Person means (a) all common stock, preferred
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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.
"ERISA" means the Employee Retirement Income Security Act of 1974.
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"ERISA Affiliate" means any trade or business (whether or not incorporated)
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under common control with Borrower within the meaning of Sections 414(b) or (c)
of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions
relating to Section 412 of the Code).
"ERISA Event" means (a) a Reportable Event with respect to a Pension Plan;
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(b) a withdrawal by Borrower or any ERISA Affiliate from a Pension Plan subject
to Section 4063 of ERISA during a plan year in which it was a substantial
employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of
operations that is treated as such a withdrawal under Section 4062(e) of ERISA;
(c) a complete or partial withdrawal by Borrower or any ERISA Affiliate from a
Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (d) the filing of a notice of intent to terminate, the treatment
of a Plan amendment as a termination under Sections 4041 or 4041A of ERISA, or
the commencement of proceedings by the PBGC to terminate a Pension Plan or
Multiemployer Plan; (e) an event or condition which might reasonably be expected
to constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Pension Plan or Multiemployer
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Plan; or (f) the imposition of any liability under Title IV of ERISA, other than
PBGC premiums due but not delinquent under Section 4007 of ERISA, upon Borrower
or any ERISA Affiliate.
"Event of Default" means any of the events specified in Section 8.
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"Existing Credit Agreement" means that certain Credit Agreement, dated as
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of June 6, 1997, among Borrower, Canadian Imperial Bank of Commerce, as
administrative agent, and a syndicate of lenders.
"Extension of Credit" means (a) a Borrowing, Conversion or Continuation of
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Loans and (b) a Letter of Credit Action wherein a new Letter of Credit is issued
or which has the effect of increasing the amount of, extending the maturity of,
or making a material modification to an outstanding Letter of Credit or the
reimbursement of drawings thereunder.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
------------------
upwards to the nearest 1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as published by the
Federal Reserve Bank on the Business Day next succeeding such day; provided that
--------
(a) if such day is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to Bank of America on such day on such
transactions as determined by Administrative Agent.
"GAAP" means generally accepted accounting principles set forth in the
----
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession, that are
applicable to the circumstances as of the date of determination, consistently
applied. If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Loan Document, and either
Borrower or Requisite Lenders shall so request, Administrative Agent, Lenders
and Borrower shall negotiate in good faith to amend such ratio or requirement to
preserve the original intent thereof in light of such change in GAAP (subject to
the approval of Requisite Lenders), provided that, until so amended, (a) such
--------
ratio or requirement shall continue to be computed in accordance with GAAP prior
to such change therein and (b) Borrower shall provide to Administrative Agent
and Lenders financial statements and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
"Governmental Authority" means (a) any international, foreign, federal,
----------------------
state, county or municipal government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau, commission,
department, instrumentality, central bank or public body, or (c) any court,
administrative tribunal or public utility.
"Guaranty Obligation" means, as to any Person, any (a) guaranty by such
-------------------
Person of Indebtedness of, or other obligation payable or performable by, any
other Person or (b)
-8-
assurance, agreement, letter of responsibility, letter of awareness, undertaking
or arrangement given by such Person to an obligee of any other Person with
respect to the payment or performance of an obligation by, or the financial
condition of, such other Person, whether direct, indirect or contingent,
including any purchase or repurchase agreement covering such obligation or any
collateral security therefor, any agreement to provide funds (by means of loans,
capital contributions or otherwise) to such other Person, any agreement to
support the solvency or level of any balance sheet item of such other Person or
any "keep-well" or other arrangement of whatever nature, in each such case,
given for the purpose of assuring or holding harmless such obligee against loss
with respect to any obligation of such other Person; provided, however, that the
-------- -------
term Guaranty Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guaranty Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the related primary obligation, or portion thereof,
covered by such Guaranty Obligation or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by the
Person in good faith.
"HDD" means Hard Disk Drive Group, a reportable business segment of
---
Borrower, as indicated in Borrower's quarterly report filed with the Securities
and Exchange Commission on form 10-Q on or about February 14, 2001.
"HDD Assets" has the meaning specified in Section 4.14 of the HDD General
----------
Assignment Agreement, subject to Section 5.16(d).
"HDD Business" has the meaning specified in Section 4.16 of the HDD General
------------
Assignment Agreement.
"HDD Convertible Debt Portion" means the pro rata portion described on
----------------------------
Schedule 1.01.
-------------
"HDD General Assignment Agreement" means that General Assignment and
--------------------------------
Assumption Agreement dated as of the Maxtor Merger Effective Date among
Borrower, Spinco and Maxtor.
"HDD Redemption" means the redemption by Borrower of all or substantially
--------------
all of the outstanding HDD common stock, par value $0.01 per share, of Borrower,
in exchange for common stock of Spinco.
"HDD Separation Agreement" means that Separation and Redemption Agreement
------------------------
dated as of the Maxtor Merger Effective Date, among Borrower, Spinco and Maxtor.
"In-Process Research & Development" means purchased in-process research and
---------------------------------
development, as specified on Borrower's statement of income in accordance with
GAAP.
"Indebtedness" means, as to any Person at any date of determination, all
------------
items which would, in conformity with GAAP, be classified as liabilities on a
balance sheet of such Person as at such date excluding (i) trade and other
---------
accounts payable in the ordinary course of business in accordance with customary
trade terms and which are not overdue for a period of more than 60 days (unless
contested in good faith by Borrower or any Subsidiary), (ii) deferred taxes, and
(iii) accrued interest and expenses, except to the extent capitalized, and in
any event including:
---------
-9-
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments;
(b) any direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), banker's acceptances,
bank guaranties, surety bonds and similar instruments;
(c) whether or not so included as liabilities in accordance with
GAAP, net obligations under any Swap Contract in an amount equal to (i) if
such Swap Contract has been closed out, the termination value thereof, or
(ii) if such Swap Contract has not been closed out, the ▇▇▇▇-to-market
value thereof determined on the basis of readily available quotations
provided by any recognized dealer in such Swap Contract;
(d) whether or not so included as liabilities in accordance with GAAP
and whether with or without recourse, all obligations of such Person to pay
the deferred purchase price of property or services, and indebtedness
(excluding prepaid interest thereon) secured by a Lien on property owned or
being purchased by such Person (including indebtedness arising under
conditional sales or other title retention agreements);
(e) lease payment obligations under Capital Leases or Synthetic Lease
Obligations; and
(f) all Guaranty Obligations of such Person in respect of any of the
foregoing obligations of any other Person.
For all purposes of this Agreement, the Indebtedness of any Person shall
include, at any such time as such partnership or joint venture is not Solvent,
the Indebtedness of any partnership or joint venture in which such Person is a
general partner or a joint venturer, unless such Indebtedness is expressly made
non-recourse to such Person (subject to customary recourse exceptions acceptable
to Requisite Lenders).
"Indemnified Liabilities" has the meaning set forth in Section 10.13.
----------------------- -------------
"Indemnitees" has the meaning set forth in Section 10.13.
----------- -------------
"Intangible Assets" means assets that are required to be disclosed as
-----------------
intangible assets in accordance with GAAP on Borrower's balance sheet, including
customer lists, goodwill, computer software, copyrights, trade names, trade
marks, patents, unamortized deferred charges, unamortized debt discount and
capitalized research and development costs.
"Interest Period" means for each Offshore Rate Loan, (i) initially, the
---------------
period commencing on the date such Offshore Rate Loan is disbursed or Continued
or Converted into such Offshore Rate Loan, and (ii) thereafter, the period
commencing on the last day of the preceding Interest Period, and ending, in each
case, on the earlier of (x) the scheduled Maturity Date, or (y) one, two, three
or six months thereafter or, to the extent acceptable to all Lenders, as
otherwise requested by Borrower; provided that:
--------
-10-
(A) any Interest Period that would otherwise end on a day that is
not a Business Day shall be extended to the next succeeding Business
Day unless such Business Day falls in another calendar month, in which
case such Interest Period shall end on the next 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 the calendar month at
the end of such Interest Period; and
(C) unless Administrative Agent otherwise consents, there may not
be more than eight Interest Periods for Offshore Rate Loans in effect
at any time.
"Investment" means, as to any Person, any investment by such Person,
----------
whether by means of the purchase or other acquisition of stock or other
securities of any other Person or by means of a loan, creating a debt, capital
contribution, guaranty or other debt or equity participation or interest in any
other Person. For purposes of covenant compliance, the amount of any Investment
shall be the amount actually invested, without adjustment for subsequent
increases or decreases in the value of such Investment.
"IRS" means the United States Internal Revenue Service.
---
"Issuing Lender" means Bank of America, or any successor issuing lender
--------------
hereunder.
"Laws" or "Law" means all international, foreign, federal, state and local
---- ---
statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"Lender" means each lender from time to time party hereto and, as the
------
context requires, Issuing Lender.
"Lending Office" means, as to any Lender, the office or offices of such
--------------
Lender described as such on Schedule 10.02, or such other office or offices as a
Lender may from time to time notify Administrative Agent.
"Letter of Credit" means any standby letter of credit issued or outstanding
----------------
hereunder. A Letter of Credit may be a performance letter of credit or a
financial letter of credit.
"Letter of Credit Action" means the issuance, supplement, amendment,
-----------------------
renewal, extension, modification or other action relating to a Letter of Credit
hereunder.
"Letter of Credit Application" means an application for a Letter of Credit
----------------------------
Action from time to time in use by Issuing Lender.
-11-
"Letter of Credit Cash Collateral Account" means a blocked deposit account
----------------------------------------
at Bank of America with respect to which Borrower agrees to execute and deliver
from time to time such documentation as Administrative Agent or Issuing Lender
may reasonably request to grant to Administrative Agent and Issuing Lender a
security interest therein as security for the Letter of Credit Usage.
"Letter of Credit Expiration Date" means the scheduled Maturity Date.
--------------------------------
"Letter of Credit Sublimit" means an amount equal to $50,000,000. The
-------------------------
Letter of Credit Sublimit is part of, and not in addition to, the combined
Commitments.
"Letter of Credit Usage" means, as at any date of determination, the
----------------------
aggregate undrawn face amount of outstanding Letters of Credit plus the
aggregate amount of all drawings under the Letters of Credit not reimbursed by
Borrower or converted into Loans.
"Leverage Ratio" means, as of any date of determination, for Borrower and
--------------
its Subsidiaries on a consolidated basis, the ratio of (a) Consolidated Funded
Indebtedness as of such date to (b) Consolidated EBITDA for the period of the
four fiscal quarters ending on, or ending most recently prior to, such date.
"License Disposition" means, in respect of any patent, trademark,
-------------------
copyright, mask work, trade secret or other intellectual property right owned or
held by Borrower or any of its Subsidiaries (the "IP Holder") which is material
---------
to Borrower or any of its Subsidiaries (together, "Material IP"), (i) the
-----------
granting by the IP Holder of an exclusive license across all or substantially
all fields, uses or regions to any Person other than Borrower or another
Subsidiary, (ii) the granting of any license by the IP Holder that conveys
directly or indirectly to any Person other than Borrower or its Subsidiaries all
or substantially all of the economic value of such Material IP, or (iii) the
abandonment by the IP Holder of such Material IP.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement (including in the nature of, cash collateral accounts or security
interests), encumbrance, lien (statutory or other), fixed or floating charge, or
other security interest of any kind or nature whatsoever (including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable Laws
of any jurisdiction), including the interest of a purchaser of accounts
receivable.
"Loan" means any advance made by any Lender to Borrower as provided in
----
Section 2 (collectively, the "Loans").
--------- -----
"Loan Documents" means this Agreement and each Note, each Letter of Credit
--------------
Application, each Request for Extension of Credit, each certificate, each fee
letter, and each other instrument, or agreement from time to time executed by
Borrower or any of its Subsidiaries or any Responsible Officer and delivered in
connection with this Agreement.
"Master Agreement" has the meaning set forth in the definition of "Swap
---------------- ----
Contract".
--------
-12-
"Material Adverse Effect" means any set of circumstances or events which
-----------------------
(a) has any material adverse effect upon the validity or enforceability of any
Loan Document, (b) is material and adverse to the financial condition, business,
assets or operations of Borrower or, in respect of any time prior to the Maxtor
Merger Effective Time, to the DSS Business on a stand-alone basis, or (c)
materially impairs the ability of Borrower to perform the Obligations.
"Material Subsidiaries" means each Subsidiary of Borrower which has assets
---------------------
with a total book value greater than 10% of the consolidated total assets of
Borrower and its Subsidiaries, determined as of the end of the fiscal quarter
immediately preceding the date of determination.
"Maturity Date" means (a) April 18, 2003, or (b) such earlier date upon
-------------
which the combined Commitments may be terminated in accordance with the terms of
this Agreement.
"Maxtor" means Maxtor Corporation, a Delaware corporation.
------
"Maxtor Merger" means the merger between Spinco and Maxtor, undertaken
-------------
pursuant to the Maxtor Merger Agreement.
"Maxtor Merger Agreement" means that Amended and Restated Agreement and
-----------------------
Plan of Merger and Reorganization dated as of October 3, 2000, by and among
Borrower, Spinco, Maxtor and Hawaii Acquisition Corporation, in substantially
the form attached to Borrower's Form 8-K/A filed with the Securities and
Exchange Commission on or about December 14, 2000.
"Maxtor Merger Documents" means the documents set forth on Schedule 1.01
----------------------- -------------
under the caption "Maxtor Merger Documents" (each in a form substantially
identical to that filed as an exhibit to the Maxtor Merger S-4 or, if not
included as an exhibit to the Maxtor Merger S-4, in form and substance
satisfactory to the Administrative Agent).
"Maxtor Merger Effective Date" means the date of the effectiveness of the
----------------------------
Maxtor Merger.
"Maxtor Merger Effective Time" means the time of the effectiveness of the
----------------------------
Maxtor Merger.
"Maxtor Merger Net Charge" means an amount equal to the lesser of (i) the
------------------------
amount of the expense charge recorded by Borrower in accordance with GAAP
(whether arising from discontinued operations, the restructuring of the
continuing DSS operations or the amortization of deferred compensation) in
either the first fiscal quarter of fiscal year 2002 or the fourth fiscal quarter
of fiscal year 2001, as the case may be, in connection with the Maxtor Merger
minus any gain recorded by Borrower in accordance with GAAP in connection with
the sale of the HDD Business in such quarter and (ii) $75,000,000, but in any
event not less than $0.
"Maxtor Merger S-4" means that Registration Statement on Form S-4 filed by
-----------------
Maxtor with the Securities and Exchange Commission on or about December 11,
2000, as amended on or about (i) January 23, 2001, (ii) February 16, 2001 and
(iii) February 28, 2001, together with all exhibits and attachments thereto, and
as the prospectus contained in such Registration Statement was amended on or
about March 7, 2001.
-13-
"Meridian Acquisition" means the acquisition by DSS of Meridian Data, Inc.,
--------------------
which was completed on or about September 10, 1999.
"Minimum Amount" means, with respect to each of the following actions, the
--------------
minimum amount and any multiples in excess thereof set forth opposite such
action:
Type of Action Minimum Multiples in
Amount excess thereof
Borrowing or prepayment of, or Conversion into, Base $ 5,000,000 $1,000,000
Rate Loans
Borrowing, prepayment or Continuation of, or Conversion $ 5,000,000 $1,000,000
into, Offshore Rate Loans
Letter of Credit Action $ 1,000,000 None
Reduction in Commitments $10,000,000 $1,000,000
Assignments $10,000,000 None
"MKE" means Matsushita-Kotobuki Electronics Industries, Ltd., a Japanese
---
corporation.
"Multiemployer Plan" means any employee benefit plan of the type described
------------------
in Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any sale or issuance of any Equity
------------
Security or other security by any Person (including in the case of Borrower, any
sale or issuance of any Subordinated Debt), the aggregate consideration received
by such Person from such sale or issuance less the actual amount of fees and
----
commissions payable to Persons other than such Person or any Affiliate of such
Person.
"Note" means a promissory note made by Borrower in favor of a Lender
----
evidencing Loans made by such Lender, substantially in the form of Exhibit C
---------
(collectively, the "Notes").
-----
"Obligations" means all advances to, and debts, liabilities, obligations,
-----------
covenants and duties of, Borrower arising under any Loan Document, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest that accrues after the commencement of any proceeding under
any Debtor Relief Laws by or against Borrower or any Subsidiary or Affiliate of
Borrower.
"Offshore Base Rate" has the meaning set forth in the definition of
------------------
Offshore Rate.
"Offshore Rate" means for any Interest Period with respect to each Offshore
-------------
Rate Loan comprising part of the same Borrowing, a rate per annum determined by
Administrative Agent pursuant to the following formula:
-14-
Offshore Rate = Offshore Base Rate
--------------------------------------------
1.00 - Eurodollar Reserve Percentage
Where,
"Offshore Base Rate" means, for such Interest Period:
------------------
(a) the rate per annum equal to the rate determined by Administrative
Agent to be the offered rate that appears on the page of the Telerate LIBOR
screen (currently, page 3750) that displays an average British Bankers
Association Interest Settlement Rate for deposits in Dollars (for delivery on
the first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding subsection (a) does not appear
on such page or service or such page or service shall cease to be available, the
rate per annum (rounded upwards to the fourth decimal place) equal to the rate
determined by Administrative Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, or
(c) if the rates referenced in the preceding subsections (a) and (b) are
not available, the rate per annum determined by Administrative Agent as the rate
of interest at which Dollar deposits (for delivery on the first day of such
Interest Period) in same day funds in the approximate amount of the Offshore
Rate Loan being made, Continued or Converted into by Administrative Agent or its
Affiliate in its capacity as a Lender hereunder, and with a term equivalent to
such Interest Period would be offered by Bank of America's London Branch to
major banks in the offshore Dollar market at their request at approximately
11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period.
"Eurodollar Reserve Percentage" means, for any day during any Interest
-----------------------------
Period, the reserve percentage (expressed as a decimal, rounded upward to the
next 1/100th of 1%) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the Board of Governors of
the Federal Reserve System for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Offshore Rate for each outstanding Offshore Rate Loan shall
be adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage. The determination of the Eurodollar Reserve
Percentage and the Offshore Base Rate by Administrative Agent shall be
conclusive in the absence of manifest error.
-15-
"Offshore Rate Loan" means a Loan made hereunder and specified to be a
------------------
Offshore Rate Loan in accordance with Section 2.
"Ordinary Course Dispositions" means:
----------------------------
(a) Dispositions of surplus equipment or damaged, obsolete or worn
out property, whether now owned or hereafter acquired, in the ordinary
course of business;
(b) Dispositions in the ordinary course of business;
(c) Dispositions of property to the extent that such property is
exchanged for credit against the purchase price of similar replacement
property, or the proceeds of such sale are reasonably promptly applied to
the purchase price of such replacement property or where Borrower or its
Subsidiary determine in good faith that the failure to replace such
equipment will not be detrimental to the business of Borrower or such
Subsidiary;
(d) Dispositions of assets or property by any Subsidiary of Borrower
to Borrower or another Subsidiary of Borrower (other than Snap Appliances);
(e) Dispositions which constitute the making or liquidating of
Permitted Investments; and
(f) Dispositions which constitute the incurrence (but not the
enforcement) of Permitted Liens;
provided, however, that, other than with respect to Dispositions of the types
-------- -------
described in clauses (a) and (d) of this definition, no such Disposition shall
be for less than the fair market value of the property being disposed of.
"Ordinary Course Indebtedness" means:
----------------------------
(a) Indebtedness under the Loan Documents;
(b) intercompany Guaranty Obligations of Borrower or any of its
Subsidiaries guarantying Indebtedness otherwise permitted hereunder of
Borrower or any Subsidiary of Borrower (other than Snap Appliances);
(c) Indebtedness arising from the honoring of a check, draft or
similar instrument against insufficient funds or from the endorsement of
instruments for collection in the ordinary course of Borrower's or any
Subsidiary's business;
(d) Permitted Swap Obligations; and
(e) Indebtedness of Borrower or any of its Subsidiaries with respect
to surety, appeal, indemnity, performance or other similar bonds in the
ordinary course of business.
-16-
"Ordinary Course Investments" means Investments consisting of:
---------------------------
(a) Investments in other assets properly classified as "marketable
securities" or "cash" or "cash equivalents" under GAAP, and which conform
to the investment policies adopted by the Board of Directors of Borrower
from time to time;
(b) advances to officers, directors and employees of Borrower and its
Subsidiaries for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of Borrower in any of its Subsidiaries (other than
Snap Appliances) and Investments of any Subsidiary of Borrower in Borrower
or another Subsidiary of Borrower (other than Snap Appliances);
(d) extensions of credit to customers or suppliers of Borrower and
its Subsidiaries in the ordinary course of business and any Investments
received in satisfaction or partial satisfaction thereof;
(e) Guaranty Obligations permitted by Section 7.01.
------------
(f) Investments received by Borrower or any of its Subsidiaries as
distributions on claims in connection with the bankruptcy or reorganization
of customers or suppliers and in settlement of delinquent obligations of,
and other disputes with, customers and suppliers arising in the ordinary
course of business;
(g) Investments of any Subsidiary existing at the time it becomes a
Subsidiary of Borrower, provided that such Investments were not made in
--------
anticipation of such Person becoming a Subsidiary of Borrower; and
(h) Investments consisting of loans to employees, officers and
directors, the proceeds of which shall be used to purchase Equity
Securities of Borrower or its Subsidiaries and other loans to employees,
officers and directors.
"Ordinary Course Liens" means:
---------------------
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings, if adequate reserves with respect
thereto are maintained on the books of the applicable Person in accordance
with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are
not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceedings, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
-17-
(d) pledges or deposits in connection with worker's compensation,
unemployment insurance and other social security legislation;
(e) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(f) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which, in the aggregate, are not
substantial in amount, and which do not in any case materially detract from
the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of any Person;
(g) attachment, judgment or other similar Liens arising in connection
with litigation or other legal proceedings (and not otherwise an Event of
Default hereunder) in the ordinary course of business that is currently
being contested in good faith by appropriate proceedings, adequate reserves
have been set aside, and no material property is subject to a material risk
of loss or forfeiture;
(h) Liens on the property or assets of any Subsidiary of Borrower in
favor of Borrower or any other Subsidiary of Borrower (other than Snap
Appliances);
(i) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties and in connection with
the importation of goods in the ordinary course of Borrower's and its
Subsidiaries' businesses;
(j) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights
and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such deposit account is
--------
not a dedicated cash collateral account and is not subject to restrictions
against access by Borrower in excess of those set forth by regulations
promulgated by the Federal Reserve Board, and (ii) such deposit account is
not intended by Borrower or any Subsidiary to provide collateral to the
depository institution; and
(k) Liens on insurance proceeds in favor of insurance companies with
respect to the financing of insurance premiums.
"Organization Documents" means, (a) with respect to any corporation, the
----------------------
certificate or articles of incorporation and the bylaws; (b) with respect to any
limited liability company, the articles of formation and operating agreement;
and (c) with respect to any partnership, joint venture, trust or other form of
business entity, the partnership or joint venture agreement and any agreement,
instrument, filing or notice with respect thereto filed in connection with its
formation with the secretary of state or other department in the state of its
formation, in each case as amended from time to time.
"Outstanding Obligations" means, as of any date, and giving effect to
-----------------------
making any Extensions of Credit requested on such date and all payments,
repayments and prepayments made on such date, (a) when reference is made to all
Lenders, the sum of (i) the aggregate outstanding principal amount of all Loans,
and (ii) all Letter of Credit Usage, and (b) when
-18-
reference is made to one Lender, the sum of (i) the aggregate outstanding
principal amount of all Loans made by such Lender, and (ii) such Lender's
ratable risk participation in all Letter of Credit Usage.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
----
thereto established under ERISA.
"Pension Plan" means any "employee pension benefit plan" (as such term is
------------
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by Borrower or any
ERISA Affiliate or to which Borrower or any ERISA Affiliate contributes or has
an obligation to contribute, or in the case of a multiple employer plan (as
described in Section 4064(a) of ERISA) has made contributions at any time during
the immediately preceding five plan years.
"Permitted Indebtedness" has the meaning specified in Section 7.01.
---------------------- ------------
"Permitted Investments" has the meaning specified in Section 7.05.
--------------------- ------------
"Permitted Liens" has the meaning specified in Section 7.02.
--------------- ------------
"Permitted Receivables Facility" means one or more accounts receivable
------------------------------
financing arrangements including (i) the sale of accounts receivable and any
related property by Borrower and/or any of its Subsidiaries to a financing party
or a special purpose vehicle, and/or (ii) the granting of a security interest in
accounts receivable and any related property by Borrower and/or any of its
Subsidiaries; provided, however, that the aggregate advances under all such
-------- -------
accounts receivable financing arrangements shall not exceed $100,000,000 at any
time.
"Permitted Swap Obligations" means all obligations (contingent or
--------------------------
otherwise) of Borrower or any of its Subsidiaries existing or arising under Swap
Contracts, provided that such obligations are (or were) entered into by such
Person in the ordinary course of business for the purpose of directly mitigating
risks associated with liabilities, commitments or assets held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person in conjunction with a securities repurchase program not otherwise
prohibited hereunder, and not for purposes of speculation or taking a "market
view. "
"Person" means any individual, trustee, corporation, general partnership,
------
limited partnership, limited liability company, joint stock company, trust,
unincorporated organization, bank, business association, firm, joint venture,
Governmental Authority, or otherwise.
"Plan" means any employee benefit plan maintained or contributed to by
----
Borrower or by any trade or business (whether or not incorporated) under common
control with Borrower as defined in Section 4001(b) of ERISA and insured by the
Pension Benefit Guaranty Corporation under Title IV of ERISA.
"Pro Rata Share" means, with respect to each Lender, the percentage of the
--------------
combined Commitments set forth opposite the name of such Lender on Schedule
--------
2.01, as such share may be adjusted as contemplated herein.
----
-19-
"Quantum Technology Ventures" means Quantum Technology Ventures, a Delaware
---------------------------
corporation in formation.
"Quick Ratio" means, with respect to Borrower and its Subsidiaries at any
-----------
time, the ratio, determined on a consolidated basis in accordance with GAAP, of:
(a) the sum at such time of all (i) cash and cash equivalents of Borrower and
its Subsidiaries (excluding restricted cash), and (ii) accounts receivable of
Borrower and its Subsidiaries, less all reserves therefor; to (b) the sum at
such time of (i) the current liabilities of Borrower and its Subsidiaries
(including any such liabilities outstanding under this facility), plus (ii) to
----
the extent not included in clause (i), Outstanding Obligations; provided that in
--------
respect of any period (or partial period) prior to the Maxtor Merger Effective
Time, the "Quick Ratio" shall be determined solely in respect of the DSS
Business on a stand-alone basis, based upon the then-current DSS Combined
Financial Statements.
"Reportable Event" means any of the events set forth in Section 4043(b) of
----------------
ERISA or the regulations thereunder, a withdrawal from a Plan described in
Section 4063 of ERISA, or a cessation of operations described in Section 4062(e)
of ERISA.
"Request for Extension of Credit" means, unless otherwise specified herein,
-------------------------------
(a) with respect to a Borrowing, Conversion or Continuation of Loans, a written
request substantially in the form of Exhibit A, and (b) with respect to a Letter
---------
of Credit Action, a Letter of Credit Application; in each case duly completed
and signed by a Responsible Officer of Borrower and delivered by Requisite
Notice.
"Requisite Lenders" means, as of any date of determination: (a) if the
-----------------
Commitments are then in effect, Lenders (excluding any Lenders not funding when
required to so hereunder) having in the aggregate more than 50% of the combined
Commitments then in effect and (b) if the Commitments have then been terminated
and there are Outstanding Obligations, Lenders holding Outstanding Obligations
aggregating more than 50% of such Outstanding Obligations.
"Requisite Notice" means, unless otherwise provided herein, (a) irrevocable
----------------
written notice to the intended recipient or (b) except with respect to Letter of
Credit Actions (which must be in writing), irrevocable telephonic notice to the
intended recipient, promptly followed by a written notice to such recipient.
Such notices shall be (i) delivered to such recipient at the address or
telephone number specified on Schedule 10.02 or as otherwise designated by such
--------------
recipient by Requisite Notice to Administrative Agent, and (ii) if made by
Borrower, given or made by a Responsible Officer of Borrower. Any written notice
delivered in connection with any Loan Document shall be in the form, if any,
prescribed herein or therein. Any notice sent by other than hardcopy shall be
promptly confirmed by a telephone call to the recipient and, if requested by
Administrative Agent, by a manually-signed hardcopy thereof.
-20-
"Requisite Time" means, with respect to any of the actions listed
--------------
below, the time and date set forth below opposite such action:
Applicable
Type of Action Time Date of Action
------------------------------------------------ ----------------------- ------------------------------------
Delivery of Request for Extension of
Credit for, or notice for:
. Borrowing or prepayment of, or 9:00 a.m. Same date as such Borrowing,
Conversion into, Base Rate Loans prepayment or Conversion
. Borrowing, prepayment or Continuation 9:00 a.m. 3 Business Days prior to such
of, or Conversion into, Offshore Rate Loans Borrowing, prepayment Continuation
or Conversion
. Letter of Credit Action 10:00 a.m. 2 Business Days prior to such action
(or such lesser time which is
acceptable to Issuing Lender)
. Voluntary reduction in or 10:00 a.m. 3 Business Days prior to such
termination of Commitments reduction or termination
Payments by Lenders or Borrower to 11:00 a.m. On date payment is due
Administrative Agent
"Responsible Officer" means the president, chief financial officer,
-------------------
vice president-finance, treasurer or assistant treasurer of Borrower. Any
document or certificate hereunder that is signed by a Responsible Officer of
Borrower shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of Borrower and such
Responsible Officer shall be conclusively presumed to have acted on behalf of
Borrower.
"Restatement Date" means the date on which all conditions precedent to
----------------
the effectiveness of this amended and restated Agreement are satisfied or waived
by the Requisite Lenders.
"Restricted Payment" means:
------------------
(a) the declaration or payment of any dividend or distribution
by Borrower or any Subsidiary, either in cash or property, on any
shares of the capital stock of any class of Borrower or any Subsidiary;
and
(b) any other payment or distribution by Borrower or any
Subsidiary in respect of its capital stock, either directly or
indirectly.
"Senior Indebtedness" means, with respect to any Person at any time,
-------------------
all Indebtedness of such Person other than Subordinated Debt.
-21-
"Shareholders' Equity" means, as of any date of determination for
--------------------
Borrower and its Subsidiaries on a consolidated basis, shareholders' equity as
of that date determined in accordance with GAAP.
"Snap Appliances" means Snap Appliances, Inc., a Delaware corporation.
---------------
"Snap Appliances S-1" means that Registration Statement on Form S-1
-------------------
filed by Snap Appliances with the Securities and Exchange Commission on or about
October 30, 2000, as amended on or about November 13, 2000, together with all
exhibits and attachments thereto.
"Snap Business" has the meaning specified in Section 4.20 of the Snap
-------------
General Assignment Agreement.
"Snap Employee Matters Agreement" means that Employment Matters
-------------------------------
Agreement to be entered into by Borrower and Snap Appliances in connection with
the Snap Spin Off in a form substantially identical to the form of such
agreement attached as an exhibit to the Snap Appliances S-1.
"Snap General Assignment Agreement" means that General Assignment and
---------------------------------
Assumption Agreement to be entered into by Borrower and Snap Appliances in
connection with the Snap Spin Off in a form substantially identical to the form
of such agreement attached as an exhibit to the Snap Appliances S-1.
"Snap Master Agreement" means that Master Separation and Distribution
---------------------
Agreement effective as of October 26, 2000 between Borrower and Snap Appliances.
"Snap Spin-Off Documents" means the documents set forth on Schedule
-----------------------
1.01 under the caption "Snap Spin-Off Documents" together with any and all other
documents entered into pursuant thereto, in connection therewith or required
thereby.
"Snap Spin-Off" means (a) the contribution and assignment by Borrower
-------------
to Snap Appliances of certain assets and liabilities of Borrower associated with
the Snap Business, substantially in accordance with the terms of the Snap Master
Agreement, (b) the consummation by Snap Appliances of an initial public offering
following which Borrower shall retain an ownership interest in not less than 80%
of outstanding common stock of Snap Appliances, substantially in accordance with
the Snap Appliances S-1 and (c) the distribution to Borrower's shareholders of
all or substantially all remaining shares of Snap Appliances pursuant to a
tax-free reorganization.
"Solvent" means, as to any Person at any time, that (i) the fair value
-------
of the property of such Person is greater than the amount of such Person's
liabilities (including disputed, contingent and unliquidated liabilities) as
such value is established and liabilities evaluated for purposes of Section
101(32) of the Bankruptcy Code; (ii) the present fair saleable value of the
property of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured; (iii) such Person is able to realize upon its property and pay its
debts and other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course of business; (iv) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's
-22-
ability to pay as such debts and liabilities mature; and (v) 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 unreasonably
small capital.
"Spinco" means Insula Corporation, a Delaware corporation and, prior to
------
the Maxtor Merger Effective Time, a wholly-owned Subsidiary of Borrower.
"Subordinated Debt" means the Convertible Subordinated Debentures and
-----------------
any other subordinated debt permitted by Section 7.01.
------------
"Subsidiary" of a Person means a corporation, partnership, joint
----------
venture, limited liability company or other business entity of which a majority
of the shares of securities or other interests having ordinary voting power for
the election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned or controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of Borrower.
"Swap Contract" means (a) any and all rate swap transactions, basis
-------------
swaps, forward rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond or bond price
or bond index swaps or options or forward bond or forward bond price or forward
bond index transactions, interest rate options, forward foreign exchange
transactions, cap transactions, floor transactions, collar transactions,
currency swap transactions, cross-currency rate swap transactions, currency
options, or any other similar transactions or any combination of any of the
foregoing (including any options to enter into any of the foregoing), whether or
not any such transaction is governed by or subject to any master agreement, and
(b) any and all transactions of any kind, and the related confirmations, which
are subject to the terms and conditions of, or governed by, any form of master
agreement published by the International Swaps and Derivatives Association,
Inc., or any other master agreement (any such master agreement, together with
any related schedules, as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, a "Master Agreement"), including any such
----------------
obligations or liabilities under any Master Agreement.
"Swap Termination Value" means, in respect of any one or more Swap
----------------------
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a) the amount(s) determined as the
▇▇▇▇-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include any Lender).
"Synthetic Lease Obligations" means all monetary obligations of a
---------------------------
Person under (a) a so-called synthetic, off-balance sheet or tax retention
lease, or (b) an agreement for the use or possession of property creating
obligations which do not appear on the balance sheet of such
-23-
Person but which, upon the insolvency or bankruptcy of such Person, would be
characterized as secured debt of such Person.
"364-Day Credit Agreement" means that Credit Agreement (364-Day) dated
------------------------
as of April 19, 2000 among Borrower, Bank of America, N.A., as "Administrative
Agent" and other financial institutions party thereto.
"Tax Loss" means any and all taxes (including interest and penalties)
--------
Borrower or any of its Subsidiaries paid, or required to be paid, at any time as
a result of the Maxtor Merger or HDD Redemption not qualifying to be treated as
a tax free transaction or as part of a tax-free reorganization under the Code
(or other applicable tax law), whether as a result of the IRS (or any other
applicable taxing authority) making such a determination or otherwise.
"Threshold Amount" means $10,000,000.
----------------
"to the best knowledge of" means, when modifying a representation,
------------------------
warranty or other statement of any Person, that the fact or situation described
therein is known by such Person (or, (i) in the case of Borrower, known by any
Responsible Officer or executive officer of Borrower, or, (ii) in the case of
any other Person other than a natural Person, known by any officer of such
Person) making the representation, warranty or other statement, or with the
exercise of reasonable due diligence under the circumstances (in accordance with
the standard of what a reasonable Person in similar circumstances would have
done) would have been known by such Person (or, (i) in the case of Borrower,
would have been known by any Responsible Officer or executive officer of
Borrower, or, (ii) in the case of any other Person other than a natural Person,
would have been known by any executive officer of such Person).
"type" of Loan means (a) a Base Rate Loan and (b) an Offshore Rate
----
Loan.
"Unfunded Pension Liability" means the excess of a Pension Plan's
--------------------------
benefit liabilities under Section 4001(a)(16) of ERISA, over the current value
of that Pension Plan's assets, determined in accordance with the assumptions
used for funding the Pension Plan pursuant to Section 412 of the Code for the
applicable plan year.
"Voluntary Redemption Event" means, in respect of any Indebtedness
--------------------------
consisting of bonds, debentures, senior or subordinated notes or other debt
securities, any redemption, prepayment or call for redemption or prepayment of
any or all of such Indebtedness at the election of the issuer and not in
connection with any breach by such issuer of any term or covenant contained in
any instrument, indenture or agreement evidencing such Indebtedness.
1.02 Use of Certain Terms.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include one
another.
-24-
(c) The words "herein" and "hereunder" and words of similar import
when used in any Loan Document shall refer to the Loan Documents as a whole and
not to any particular provision thereof. The term "including" is by way of
example and not limitation. References herein to a Section, subsection or clause
shall, unless the context otherwise requires, refer to the appropriate Section,
subsection or clause in this Agreement.
(d) The term "or" is disjunctive; the term "and" is conjunctive. The
term "shall" is mandatory; the term "may" is permissive.
1.03 Accounting Terms. All accounting terms not specifically or
completely defined in this Agreement shall be construed in conformity with, and
all financial data required to be submitted by this Agreement shall be prepared
in conformity with, GAAP applied on a consistent basis, as in effect from time
to time, and applied in a manner consistent with that used in preparing the
Audited Financial Statements, except as otherwise specifically prescribed
herein.
1.04 Rounding. Any financial ratios required to be maintained by
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed in this
Agreement and rounding the result up or down to the nearest number (with a
round-up if there is no nearest number) to the number of places by which such
ratio is expressed in this Agreement.
1.05 Exhibits and Schedules. All exhibits and schedules to this
Agreement, either as originally existing or as the same may from time to time be
supplemented, modified or amended, are incorporated herein by this reference. A
matter disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 References to Agreements and Laws. Unless otherwise expressly
provided herein, (a) references to agreements (including the Loan Documents) and
other contractual instruments shall include all amendments, restatements,
extensions, supplements and other modifications thereto (unless prohibited by
any Loan Document), and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 Loans.
(a) Subject to the terms and conditions set forth in this Agreement,
each Lender severally agrees to make, Convert and Continue Loans until the
Maturity Date in such amounts as Borrower may from time to time request;
provided, however, that the Outstanding Obligations of each Lender shall not
-------- -------
exceed such Lender's Commitment, and the Outstanding Obligations of all Lenders
shall not exceed the combined Commitments at any time. This is a revolving
credit and, subject to the foregoing and the other terms and conditions hereof,
Borrower may borrow, Convert, Continue, prepay and reborrow Loans as set forth
herein without premium or penalty.
-25-
(b) Loans made by each Lender shall be evidenced by one or more
Notes. The date, amount and maturity of each Lender's Loans and payments and
other particulars with respect thereto may be endorsed on schedule(s) attached
to its Note by each Lender and/or recorded on one or more loan accounts or
records maintained by such Lender in the ordinary course of business. Such
Notes, loan accounts and records shall be conclusive absent manifest error of
the amount of such Loans and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect the obligation
of Borrower to pay any amount owing with respect to the Loans.
2.02 Borrowings, Conversions and Continuations of Loans.
(a) Borrower may irrevocably request a Borrowing, Conversion or
Continuation of Loans in a Minimum Amount therefor by delivering a Request for
Extension of Credit therefor by Requisite Notice to Administrative Agent not
later than the Requisite Time therefor. All Borrowings, Conversions and
Continuations of Loans shall constitute Base Rate Loans unless properly and
timely otherwise designated as set forth in the prior sentence.
(b) Following receipt of a Request for Extension of Credit,
Administrative Agent shall promptly notify each Lender of its Pro Rata Share
thereof by Requisite Notice. In the case of a Borrowing of Loans, each Lender
shall make the funds for its Loan available to Administrative Agent at
Administrative Agent's Office not later than the Requisite Time therefor on the
Business Day specified in such Request for Extension of Credit. Upon
satisfaction of the applicable conditions set forth in Section 4.02 (and, if the
------------
initial Extension of Credit hereunder, Section 4.01), all funds so received
------------
shall be made available to Borrower in like funds received. Administrative Agent
shall promptly notify Borrower and Lenders of the interest rate applicable to
any Loan other than a Base Rate Loan upon determination of same.
(c) Except as otherwise provided herein, an Offshore Rate Loan may be
Continued or Converted only on the last day of the Interest Period for such
Offshore Rate Loan. During the existence of a Default or Event of Default, no
Loans may be requested as, Converted into or Continued as Offshore Rate Loans
without the consent of Requisite Lenders, and Requisite Lenders may demand that
any or all of the then outstanding Offshore Rate Loans be Converted immediately
into Base Rate Loans.
(d) If a Loan is to be made on the same date that another Loan is due
and payable, Borrower or Lenders, as the case may be, shall, unless
Administrative Agent otherwise requests, make available to Administrative Agent
the net amount of funds giving effect to both such Loans and the effect for
purposes of this Agreement shall be the same as if separate transfers of funds
had been made with respect to each such Loan.
(e) The failure of any Lender to make any Loan on any date shall not
relieve any other Lender of any obligation to make a Loan on such date, but no
Lender shall be responsible for the failure of any other Lender to so make its
Loan.
2.03 Letters of Credit.
(a) The Letter of Credit Sublimit. Subject to the terms and
conditions set forth in this Agreement, until the Letter of Credit Expiration
Date, Issuing Lender shall take such Letter of
-26-
Credit Actions as Borrower may from time to time request; provided, however,
-------- -------
that (i) the Outstanding Obligations of each Lender shall not exceed such
Lender's Commitment, and the Outstanding Obligations of all Lenders shall not
exceed the combined Commitments at any time, and (ii) Letter of Credit Usage
shall not exceed the Letter of Credit Sublimit at any time. Subject to
subsection (f) below and unless consented to by Issuing Lender and Requisite
Lenders, no Letter of Credit may expire more than 12 months after the date of
its issuance or last renewal; provided, however, that no Letter of Credit shall
-------- -------
expire after the Letter of Credit Expiration Date. If any Letter of Credit Usage
remains outstanding after such date, Borrower shall, not later than such date,
deposit cash in an amount equal to such Letter of Credit Usage in a Letter of
Credit Cash Collateral Account.
(b) Requesting Letter of Credit Actions. Borrower may irrevocably
request a Letter of Credit Action in a Minimum Amount therefor by delivering a
Letter of Credit Application therefor to Issuing Lender, with a copy to
Administrative Agent (who shall notify Lenders), by Requisite Notice not later
than the Requisite Time therefor. Each Letter of Credit Action shall be in a
form acceptable to Issuing Lender in its sole discretion. Unless Administrative
Agent notifies Issuing Lender that such Letter of Credit Action is not permitted
hereunder, or Issuing Lender notifies Administrative Agent that it has
determined that such Letter of Credit Action is contrary to any Laws or policies
of Issuing Lender, Issuing Lender shall, upon satisfaction of the applicable
conditions set forth in Section 4.02 with respect to any Letter of Credit Action
------------
constituting an Extension of Credit, effect such Letter of Credit Action. This
Agreement shall control in the event of any conflict with any Letter of Credit
Application. Upon the issuance of a Letter of Credit, each Lender shall be
deemed to have purchased from Issuing Lender a risk participation therein in an
amount equal to such Lender's Pro Rata Share times the amount of such Letter of
Credit.
(c) Reimbursement of Payments Under Letters of Credit. Borrower shall
reimburse Issuing Lender through Administrative Agent for any payment that
Issuing Lender makes under a Letter of Credit on or before the date of such
payment; provided, however, that if the conditions precedent set forth in
-------- -------
Section 4.02 can be satisfied, Borrower may request a Borrowing of Loans to
------------
reimburse Issuing Lender for such payment pursuant to Section 2.02, or, failing
------------
to make such request, Borrower shall be deemed to have requested a Borrowing of
Base Rate Loans on such payment date pursuant to subsection (e) below.
(d) Funding by Lenders When Issuing Lender Not Reimbursed. Upon any
drawing under a Letter of Credit, Issuing Lender shall notify Administrative
Agent and Borrower. If Borrower fails to timely make the payment required
pursuant to subsection (c) above, Issuing Lender shall notify Administrative
Agent of such fact and the amount of such unreimbursed payment. Administrative
Agent shall promptly notify each Lender of its Pro Rata Share of such amount by
Requisite Notice. Each Lender shall make funds in an amount equal its Pro Rata
Share of such amount available to Administrative Agent at Administrative Agent's
Office not later than the Requisite Time therefor on the Business Day specified
by Administrative Agent, Administrative Agent shall remit the funds so received
to Issuing Lender. The obligation of each Lender to so reimburse Issuing Lender
shall be absolute and unconditional and shall not be affected by the occurrence
of a Default or Event of Default or any other occurrence or event. Any such
reimbursement shall not relieve or otherwise impair the obligation of Borrower
to
-27-
reimburse Issuing Lender for the amount of any payment made by Issuing Lender
under any Letter of Credit, together with interest as provided herein.
(e) Nature of Lenders' Funding. If the conditions precedent set forth
in Section 4.02 can be satisfied (except for the giving of a Request for
------------
Extension of Credit) on any date Borrower is obligated to, but fails to,
reimburse Issuing Lender for a drawing under a Letter of Credit, the funding by
Lenders pursuant to the previous subsection shall be deemed to be a Borrowing of
Base Rate Loans (without regard to the Minimum Amount therefor) deemed requested
by Borrower. If the conditions precedent set forth in Section 4.02 cannot be
------------
satisfied on the date Borrower is obligated to, but fails to, reimburse Issuing
Lender for a drawing under a Letter of Credit, the funding by Lenders pursuant
to the previous subsection shall be deemed to be a funding by each Lender of its
risk participation in such Letter of Credit, and each Lender making such funding
shall thereupon acquire a pro rata participation, to the extent of its
reimbursement, in the claim of Issuing Lender against Borrower in respect of
such payment and shall share, in accordance with that pro rata participation, in
any payment made by Borrower with respect to such claim. Any amounts made
available by a Lender under its risk participation shall be payable by Borrower
upon demand of Administrative Agent, and shall bear interest at a rate per annum
equal to the Default Rate.
(f) Special Provisions Relating to Evergreen Letters of Credit.
Borrower may request Letters of Credit that have automatic extension or renewal
provisions ("evergreen" Letters of Credit) so long as Issuing Lender consents in
its sole and absolute discretion thereto and has the right to not permit any
such extension or renewal at least annually within a notice period to be agreed
upon at the time each such Letter of Credit is issued. Once an evergreen Letter
of Credit is issued, unless Administrative Agent has notified Issuing Lender
that Requisite Lenders have elected not to permit such extension or renewal, the
Borrower Parties, Administrative Agent and Lenders shall be deemed to have
authorized (but may not require) Issuing Lender to, in its sole and absolute
discretion, permit the renewal of such evergreen Letter of Credit at any time to
a date not later than the Letter of Credit Expiration Date, and, unless directed
by Issuing Lender, Borrower shall not be required to request such extension or
renewal. Issuing Lender may, in its sole and absolute discretion elect not to
permit an evergreen Letter of Credit to be extended or renewed at any time.
(g) Obligations Absolute. The obligation of Borrower to pay to
Issuing Lender the amount of any payment made by Issuing Lender under any Letter
of Credit shall be absolute, unconditional, and irrevocable. Without limiting
the foregoing, Borrower's obligation shall not be affected by any of the
following circumstances:
(i) any lack of validity or enforceability of such
Letter of Credit, this Agreement, or any other agreement or instrument
relating thereto;
(ii) any amendment or waiver of or any consent to
departure from such Letter of Credit, this Agreement, or any other
agreement or instrument relating hereto or thereto;
(iii) the existence of any claim, setoff, defense, or
other rights which Borrower may have at any time against Issuing
Lender, Administrative Agent or any Lender, any
-28-
beneficiary of such Letter of Credit (or any persons or entities for
whom any such beneficiary may be acting) or any other Person, whether
in connection with such Letter of Credit, this Agreement, or any other
agreement or instrument relating thereto, or any unrelated
transactions;
(iv) any demand, statement, or any other document
presented under such Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect whatsoever so long
as any such document appeared to comply with the terms of the Letter
of Credit;
(v) payment by Issuing Lender in good faith under such
Letter of Credit against presentation of a draft or any accompanying
document which does not strictly comply with the terms of such Letter
of Credit; or any payment made by Issuing Lender under such Letter of
Credit to any Person purporting to be a trustee in bankruptcy, debtor-
in-possession, assignee for the benefit of creditors, liquidator,
receiver or other representative of or successor to any beneficiary or
any transferee of such Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Laws;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any property purported to be
represented by documents presented in connection with such Letter of
Credit or for any difference between any such property and the
character, quality, quantity, condition, or value of such property as
described in such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of property as described in documents
presented in connection with such Letter of Credit or the existence,
nature and extent of any insurance relative thereto;
(viii) the solvency or financial responsibility of any
party issuing any documents in connection with such Letter of Credit;
(ix) any failure or delay in notice of shipments or
arrival of any property;
(x) any error in the transmission of any message
relating to such Letter of Credit not caused by Issuing Lender, or any
delay or interruption in any such message;
(xi) any error, neglect or default of any correspondent
of Issuing Lender in connection with such Letter of Credit;
(xii) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes, emergency
conditions or other causes beyond the control of Issuing Lender;
(xiii) so long as Issuing Lender in good faith determines
that the document appears to comply with the terms of the Letter of
Credit, the form, accuracy, genuineness or legal effect of any
contract or document referred to in any document submitted to Issuing
Lender in connection with such Letter of Credit; and
-29-
(xiv) any other circumstances whatsoever where Issuing
Lender has acted in good faith.
In addition, Borrower will promptly examine a copy of each Letter of Credit and
amendments thereto delivered to it and, in the event of any claim of
noncompliance with Borrower's instructions or other irregularity, Borrower will
immediately notify Issuing Lender in writing. Borrower shall be conclusively
deemed to have waived any such claim against Issuing Lender and its
correspondents unless such notice is given as aforesaid.
(h) Role of Issuing Lender. Each Lender and Borrower agree that, in
paying any drawing under a Letter of Credit, Issuing Lender shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Administrative
Agent-Related Person nor any of the respective correspondents, participants or
assignees of Issuing Lender shall be liable to any Lender for any action taken
or omitted in connection herewith at the request or with the approval of Lenders
or Requisite Lenders, as applicable; any action taken or omitted in the absence
of gross negligence or willful misconduct; or the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter
of Credit. Borrower hereby assumes all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
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preclude Borrower's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. No Administrative
Agent-Related Person, nor any of the respective correspondents, participants or
assignees of Issuing Lender, shall be liable or responsible for any of the
matters described in subsection (g) above. In furtherance and not in limitation
of the foregoing, Issuing Lender may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and Issuing Lender shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(i) Applicability of ISP98 and UCP. Unless otherwise expressly agreed
by Issuing Lender and Borrower when a Letter of Credit is issued and subject to
applicable laws, performance under Letters of Credit by Issuing Lender, its
correspondents, and beneficiaries will be governed by, with respect to standby
Letters of Credit, the rules of the "International Standby Practices 1998"
(ISP98) or such later revision as may be published by the International Chamber
of Commerce (the "ICC").
---
(j) Letter of Credit Fee. On each Applicable Payment Date, Borrower
shall pay to Administrative Agent in arrears, for the account of each Lender in
accordance with its Pro Rata Share, a Letter of Credit fee equal to the
Applicable Amount for Offshore Rate Loans on a per annum basis times the actual
daily maximum amount available to be drawn under each Letter of Credit for the
period since the later of the Closing Date and the previous Applicable Payment
Date. If there is any change in the Applicable Amount during any quarter, the
actual daily amount shall be computed and multiplied by the Applicable Amount
separately for each period during such quarter that such Applicable Amount was
in effect.
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(k) Fronting Fee and Documentary and Processing Charges Payable to Issuing
Lender. On each Applicable Payment Date, Borrower shall pay to Administrative
Agent for the sole account of Issuing Lender a fronting fee in an amount equal
to 0.125% per annum on the daily average face amount of all outstanding Letters
of Credit, payable in arrears. In addition, Borrower shall pay directly to
Issuing Lender, upon demand, for its sole account its customary documentary and
processing charges in accordance with its standard schedule, as from time to
time in effect, for any Letter of Credit Action or other occurrence relating to
a Letter of Credit for which such charges are customarily made. Such fees and
charges are nonrefundable.
2.04 Prepayments.
(a) Upon Requisite Notice to Administrative Agent not later than the
Requisite Time therefor, Borrower may at any time and from time to time
voluntarily prepay Loans in part in the Minimum Amount therefor or in full
without premium or penalty. Administrative Agent will promptly notify each
Lender thereof and of such Lender's Pro Rata Share of such prepayment. Any
prepayment of an Offshore Rate Loan shall be accompanied by all accrued interest
thereon, together with the amounts set forth in Section 3.05.
------------
(b) If for any reason the Outstanding Obligations exceed the combined
Commitments as in effect or as reduced or because of any limitation set forth in
this Agreement or otherwise, Borrower shall immediately prepay Loans and/or
deposit cash in a Letter of Credit Cash Collateral Account in an aggregate
amount equal to such excess.
2.05 Reduction or Termination of Commitments. Upon Requisite Notice to
Administrative Agent not later than the Requisite Time therefor, Borrower may at
any time and from time to time, without premium or penalty, permanently and
irrevocably reduce the Commitments in a Minimum Amount therefor to an amount not
less than the Outstanding Obligations at such time or terminate the Commitments.
Any such reduction or termination shall be accompanied by payment of all accrued
and unpaid commitment fees with respect to the portion of the Commitments being
reduced or terminated. Administrative Agent shall promptly notify Lenders of any
such request for reduction or termination of the Commitments. Each Lender's
Commitment shall be reduced by an amount equal to such Lender's Pro Rata Share
times the amount of such reduction.
2.06 Principal and Interest.
(a) Except as otherwise provided hereunder, if not sooner paid, Borrower
agrees to pay the outstanding principal amount of each Loan on the Maturity
Date.
(b) Subject to subsection (c) below, and unless otherwise specified herein,
Borrower shall pay interest on the unpaid principal amount of each Loan (before
and after default, before and after maturity, before and after judgment, and
before and after the commencement of any proceeding under any Debtor Relief
Laws) from the date borrowed until paid in full (whether by acceleration or
otherwise) on each Applicable Payment Date at a rate per annum equal to the
interest rate determined in accordance with the definition of such type of Loan,
plus, to the extent applicable in each case, the Applicable Amount.
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(c) Notwithstanding subsection (b) of this Section, while any Event of
Default exists or after acceleration, Borrower shall pay interest (after as well
as before entry of judgment thereon to the extent permitted by law) on the
principal amount of all outstanding Obligations, at a rate per annum which is
determined by adding 2% per annum to the Applicable Amount then in effect for
such Loans and, in the case of Obligations not subject to an Applicable Amount,
at a rate per annum equal to the Base Rate plus 2%; provided, however, that, on
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and after the expiration of any Interest Period applicable to any Offshore Rate
Loan outstanding on the date of occurrence of such Event of Default or after
acceleration, the principal amount of such Loan shall, during the continuation
of such Event of Default or after acceleration, bear interest at a rate per
annum equal to the Base Rate plus 2%.
2.07 Fees.
(a) Commitment Fee. Borrower shall pay to Administrative Agent for the
account of each Lender according to its Pro Rata Share, a commitment fee equal
to the Applicable Amount times the actual daily amount by which the combined
Commitments exceed the Outstanding Obligations. The commitment fee shall accrue
from the Closing Date until the Maturity Date and shall be payable quarterly in
arrears on each Applicable Payment Date. The commitment fee shall be calculated
quarterly in arrears, and if there is any change in the Applicable Amount during
any quarter, the actual daily amount shall be computed and multiplied by the
Applicable Amount separately for each period during such quarter that such
Applicable Amount was in effect. The commitment fee shall accrue at all times,
including at any time during which one or more conditions in Section 4 are not
---------
met.
(b) Utilization Fee. Borrower shall pay to Administrative Agent for the
account of each Lender pro rata according to its Pro Rata Share, a utilization
fee equal to the Applicable Amount times the actual daily amount of Outstanding
-----
Obligations. The utilization fee shall accrue from the Closing Date until the
Maturity Date at all times that the Outstanding Obligations hereunder exceed 50%
of the combined Commitments, and shall be payable quarterly in arrears on each
Applicable Payment Date. The utilization fee shall be calculated quarterly in
arrears, and if there is any change in the Applicable Amount during any quarter,
the actual daily amount shall be computed and multiplied by the Applicable
Amount separately for each period during such quarter that such Applicable
Amount was in effect.
(c) Agency and Arrangement Fees. Borrower shall pay to Administrative Agent
and Arranger an agency fee and arrangement fee, respectively, in such amounts
and at such times as set forth in a separate letter agreement among Borrower,
Administrative Agent and Arranger. Such fees are for the services to be
performed by Administrative Agent in acting as Administrative Agent and for the
services of Arranger in arranging the credit facilities under this Agreement,
respectively, and are fully earned on the date paid. Such fees are solely for
Administrative Agent's and Arranger's own account and are nonrefundable.
(d) Lenders' Upfront Fee. On the Closing Date, Borrower shall pay to
Administrative Agent for the account of each Lender an upfront fee in an amount
agreed between Administrative Agent and Borrower, calculated based on each
Lender's Commitment and allocated by Administrative Agent. Such upfront fees are
for the credit facilities committed by
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each Lender under this Agreement and are fully earned on the date paid. The
upfront fee paid to each Lender is solely for its own account and is
nonrefundable.
(e) Amendment and Restatement Fee. On the Restatement Date, Borrower shall
pay to Administrative Agent for the account of each Lender having timely
executed and delivered a counterpart of this amended and restated Agreement, an
amendment and restatement fee in the amount of 0.175% (17.5 basis points) of
such Lender's Commitment. Such fee is nonrefundable.
2.08 Computation of Interest and Fees. Computation of interest on Base
Rate Loans when the Base Rate is determined by Bank of America's "prime rate"
shall be calculated on the basis of a year of 365 or 366 days, as the case may
be, and the actual number of days elapsed. Computation of all other types of
interest and all fees shall be calculated on the basis of a year of 360 days and
the actual number of days elapsed, which results in a higher yield to Lenders
than a method based on a year of 365 or 366 days. Interest shall accrue on each
Loan for the day on which the Loan is made, and shall not accrue on a Loan, or
any portion thereof, for the day on which the Loan or such portion is paid,
provided that any Loan that is repaid on the same day on which it is made shall
--------
bear interest for one day.
2.09 Making Payments.
(a) Except as otherwise provided herein, all payments by Borrower or any
Lender hereunder shall be made to Administrative Agent at Administrative Agent's
Office not later than the Requisite Time for such type of payment. All payments
received after such Requisite Time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in lawful money of the United States of America. All payments by Borrower
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.
(b) Upon satisfaction of any applicable terms and conditions set forth
herein, Administrative Agent shall promptly make any amounts received in
accordance with the prior subsection available in like funds as received, as
follows: (i) if payable to Borrower, by crediting the Designated Deposit
Account, and (ii) if payable to any Lender, by wire transfer to such Lender at
its Lending Office. If such conditions are not so satisfied, Administrative
Agent shall return any funds it is holding to the Lenders making such funds
available, without interest.
(c) Subject to the definition of "Interest Period," if any payment to be
made by Borrower shall come due on a day other than a Business Day, payment
shall instead be considered due on the next succeeding Business Day, and such
extension of time shall be reflected in computing interest and fees.
(d) Unless Borrower or any Lender has notified Administrative Agent prior
to the date any payment to be made by it is due, that it does not intend to
remit such payment, Administrative Agent may, in its sole and absolute
discretion, assume that Borrower or Lender, as the case may be, has timely
remitted such payment and may, in its sole and absolute discretion and in
reliance thereon, make available such payment to the Person entitled thereto. If
such payment was not in fact remitted to Administrative Agent in immediately
available funds, then:
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(i) if Borrower failed to make such payment, each Lender shall
forthwith on demand repay to Administrative Agent the amount of such
assumed payment made available to such Lender, together with interest
thereon in respect of each day from and including the date such amount was
made available by Administrative Agent to such Lender to the date such
amount is repaid to Administrative Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment, Administrative Agent
shall be entitled to recover such corresponding amount on demand from such
Lender. If such Lender does not pay such corresponding amount forth-with
upon Administrative Agent's demand therefor, Administrative Agent promptly
shall notify Borrower, and Borrower shall pay such corresponding amount to
Administrative Agent. Administrative Agent also shall be entitled to
recover from such Lender interest on such corresponding amount in respect
of each day from the date such corresponding amount was made available by
Administrative Agent to Borrower to the date such corresponding amount is
recovered by Administrative Agent, (A) from such Lender at a rate per annum
equal to the daily Federal Funds Rate. and (B) from Borrower, at a rate per
annum equal to the interest rate applicable to such Borrowing. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill
its Commitment or to prejudice any rights which Administrative Agent or
Borrower may have against any Lender as a result of any default by such
Lender hereunder.
(e) If Administrative Agent or any Lender is required at any time to return
to Borrower, or to a trustee, receiver, liquidator, custodian, or any official
under any proceeding under Debtor Relief Laws, any portion of a payments made by
Borrower, each Lender shall, on demand of Administrative Agent, return it share
of the amount to be returned, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the daily Federal
Funds Rate.
2.10 Funding Sources. Nothing in this Agreement shall be deemed to
obligate any Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has obtained or
will obtain the funds for any Loan in any particular place or manner.
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Any and all payments by Borrower to or for the account of
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case of
---------
Administrative Agent and each Lender, taxes imposed on or measured by its net
income, and franchise taxes imposed on it (in lieu of net income taxes), by the
jurisdiction (or any political subdivision thereof) under the Laws of which
Administrative Agent or such Lender, as the case
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may be, is organized or maintains a lending office (all such non-excluded taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and liabilities being hereinafter referred to as "Taxes"). If Borrower
-----
shall be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to Administrative Agent or any Lender, (i) the
sum payable shall be increased as necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section), Administrative Agent and such Lender receives an amount equal to
the sum it would have received had no such deductions been made, (ii) Borrower
shall make such deductions, (iii) Borrower shall pay the full amount deducted to
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, Borrower shall
furnish to Administrative Agent (who shall forward the same to such Lender) the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all present or future
stamp, court or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "Other Taxes").
-----------
(c) If Borrower shall be required by the Laws of any jurisdiction outside
the United States to deduct any Taxes from or in respect of any sum payable
under any Loan Document to Administrative Agent or any Lender, Borrower shall
also pay to such Lender or Administrative Agent (for the account of such
Lender), at the time interest is paid, such additional amount that the
respective Lender specifies as necessary to preserve the after-tax yield (after
factoring in United States (federal and state) taxes imposed on or measured by
net income) such Lender would have received if such deductions (including
deductions applicable to additional sums payable under this Section) had not
been made.
(d) Borrower agrees to indemnify Administrative Agent and each Lender for
the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this Section)
paid by Administrative Agent and such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto.
3.02 Illegality. If any Lender determines that any Laws have made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Offshore Rate Loans, or materially restricts the authority of such Lender to
purchase or sell, or to take deposits of, Dollars in the applicable offshore
Dollar market, or to determine or charge interest rates based upon the Offshore
Rate, then, on notice thereof by Lender to Borrower through Administrative
Agent, any obligation of such Lender to make Offshore Rate Loans shall be
suspended until Lender notifies Administrative Agent and Borrower that the
circumstances giving rise to such determination no longer exist. Upon receipt of
such notice, Borrower shall, upon demand from such Lender (with a copy to
Administrative Agent), prepay or Convert all Offshore Rate Loans of such Lender,
either on the last day of the Interest Period thereof, if Lender may lawfully
continue to maintain such Offshore Rate Loans to such day, or immediately, if
Lender may not lawfully continue to maintain such Offshore Rate Loans. Each
Lender agrees to designate a different Lending Office
-35-
if such designation will avoid the need for such notice and will not, in the
good faith judgment of such Lender, otherwise be materially disadvantageous to
such Lender.
3.03 Inability to Determine Rates. If, in connection with any Request for
Extension of Credit involving any Offshore Rate Loan, Administrative Agent
determines that (a) Dollar deposits are not being offered to banks in the
applicable offshore dollar market for the applicable amount and Interest Period
of the requested Offshore Rate Loan, (b) adequate and reasonable means do not
exist for determining the underlying interest rate for such Offshore Rate Loan,
or (c) such underlying interest rate does not adequately and fairly reflect the
cost to Lender of funding such Offshore Rate Loan, Administrative Agent will
promptly notify Borrower and all Lenders. Thereafter, the obligation of all
Lenders to make or maintain such Offshore Rate Loan shall be suspended until
Administrative Agent revokes such notice. Upon receipt of such notice, Borrower
may revoke any pending request for a Borrowing of Offshore Rate Loans or,
failing that, be deemed to have converted such request into a request for a
Borrowing of Base Rate Loans in the amount specified therein.
3.04 Increased Cost and Reduced Return; Capital Adequacy
(a) If any Lender determines that any Laws:
(i) subject such Lender to any Tax, duty, or other charge with
respect to any Offshore Rate Loans or its obligation to make Offshore Rate
Loans, or change the basis on which taxes are imposed on any amounts
payable to such Lender under this Agreement in respect of any Offshore Rate
Loans;
(ii) shall impose or modify any reserve, special deposit, or similar
requirement (other than the reserve requirement utilized in the
determination of the Offshore Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or commitments
of, such Lender (including its Commitment); or
(iii) shall impose on such Lender or on the offshore Dollar interbank
market any other condition affecting this Agreement or any of such
extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Offshore Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Offshore Rate Loans, then from time to time upon demand of
Lender (with a copy of such demand to Administrative Agent), Borrower shall pay
to such Lender such additional amounts as will compensate such Lender for such
increased cost or reduction.
(b) If any Lender determines that any change in or the interpretation of
any Laws have the effect of reducing the rate of return on the capital of such
Lender or compliance by such Lender (or its Lending Office) or any corporation
controlling such Lender as a consequence of such Lender's obligations hereunder
(taking into consideration its policies with respect to capital adequacy and
such Lender's desired return on capital), then from time to time upon demand of
such Lender (with a copy to Administrative Agent), Borrower shall pay to such
Lender such additional amounts as will compensate such Lender for such
reduction.
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3.05 Breakfunding Costs. Upon demand of any Lender (with a copy to
Administrative Agent) from time to time, Borrower shall promptly compensate such
Lender for and hold such Lender harmless from any loss, cost or expense incurred
by it as a result of:
(a) any Continuation, Conversion, payment or prepayment of any Loan other
than a Base Rate Loan on a day other than the last day of the Interest Period
for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by Borrower (for a reason other than the failure of such
Lender to make a Loan) to prepay, borrow, Continue or Convert any Loan other
than a Base Rate Loan on the date or in the amount notified by Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
Borrower shall also pay any customary administrative fees charged by such Lender
in connection with the foregoing.
3.06 Matters Applicable to all Requests for Compensation.
(a) A certificate of any Lender claiming compensation under this Section
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3 and setting forth the additional amount or amounts to be paid to it hereunder
-
shall be conclusive in the absence of clearly demonstrable error. In determining
such amount, Lenders may use any reasonable averaging and attribution methods.
For purposes of this Section 3, a Lender shall be deemed to have funded each
---------
Offshore Rate Loan at the Offshore Base Rate used in determining the Offshore
Rate for such Loan by a matching deposit or other borrowing in the offshore
Dollar interbank market, whether or not such Offshore Rate Loan was in fact so
funded.
(b) Borrower shall not be obligated to pay any amount under this Section
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3 which arose prior to the date which is 180 days preceding the date of such
-
demand or is attributable to periods prior to the date which is 180 days
preceding the date of such demand.
(c) Upon any Lender making a claim for compensation under Section 3.01 or
------------
3.04, Borrower may remove and replace such Lender in accordance with Section
---- -------
10.22.
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3.07 Survival. All of Borrower's obligations under this Section 3 shall
---------
survive for a period of one year after the later of (i) termination of the
Commitments, and (ii) payment in full of all Obligations.
SECTION 4.
CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT
4.01 Conditions of Initial Extension of Credit. The obligation of each
Lender to make its initial Extension of Credit hereunder is subject to
satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect
to immaterial matters or items specified in subsections (v) or (vi) below with
respect to which Borrower has
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given assurances satisfactory to Administrative Agent that they will be
delivered promptly following the Closing Date), Administrative Agent's receipt
of the following, each of which shall be originals or facsimiles (followed
promptly by originals) unless otherwise specified, each properly executed by a
Responsible Officer of Borrower, each dated on, or in the case of third-party
certificates, recently before the Closing Date and each in form and substance
satisfactory to Administrative Agent, Lenders and their legal counsel:
(i) executed counterparts of this Agreement, sufficient in number
for distribution to Administrative Agent, Lenders and Borrower;
(ii) Notes executed by Borrower in favor of each Lender, each in a
principal amount equal to such Lender's Commitment;
(iii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of Borrower
as Administrative Agent and any Lender may require to establish the
identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer thereof;
(iv) such evidence as Administrative Agent and any Lender may
reasonably require to verify that Borrower is duly organized or formed,
validly existing, in good standing and qualified to engage in business in
each jurisdiction in which it is required to be qualified to engage in
business, including certified copies of Borrower's Organization Documents,
certificates of good standing and/or qualification to engage in business,
tax clearance certificates, and the like;
(v) a certificate signed by a Responsible Officer of Borrower
certifying (A) that the representations and warranties made by Borrower
herein, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith or
therewith, are true and correct on and as of the Closing Date, (B) that
Borrower is in compliance with all the terms and provisions of the Loan
Documents to which it is a party, and no Default or Event of Default shall
have occurred and be continuing, and (C) that there has been no event or
circumstance since the date of the Audited Financial Statements which has a
Material Adverse Effect;
(vi) an opinion of counsel to Borrower in form and substance
satisfactory to Administrative Agent and the Lenders;
(vii) written evidence that the Existing Credit Agreement and all
commitments thereunder have been or concurrently herewith are being
terminated; and
(viii) such other assurances, certificates, documents, consents or
opinions as Administrative Agent, Issuing Lender or Requisite Lenders
reasonably may require.
(b) Any fees required to be paid on or before the Closing Date shall have
been paid.
(c) Unless waived by Administrative Agent, Borrower shall have paid all
Attorney Costs of Administrative Agent to the extent invoiced prior to or on the
Closing Date, plus such
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additional amounts of Attorney Costs as shall constitute its reasonable estimate
of Attorney Costs incurred or to be incurred by it through the closing
proceedings (provided that such estimate shall not thereafter preclude final
--------
settling of accounts between Borrower and Administrative Agent).
4.02 Conditions to all Extensions of Credit. In addition to any applicable
conditions precedent set forth elsewhere in this Section 4 or in Section 2, the
--------- ---------
obligation of each Lender to honor any Request for Extension of Credit other
than a Conversion or Continuation is subject to the following conditions
precedent:
(a) the representations and warranties of Borrower contained in Section 5,
---------
or which are contained in any certificate, document or financial or other
statement furnished at any time under or in connection herewith or therewith,
shall be correct on and as of the date of such Extension of Credit, except to
the extent that such representations and warranties specifically refer to an
earlier date;
(b) no Default or Event of Default exists, or would result from such
proposed Extension of Credit;
(c) Administrative Agent shall have timely received a Request for Extension
of Credit by Requisite Notice by the Requisite Time therefor; and
(d) Administrative Agent shall have received, in form and substance
satisfactory to it, such other assurances, certificates, documents or consents
related to the foregoing as Administrative Agent or Requisite Lenders reasonably
may require.
Each Request for Extension of Credit by Borrower shall be deemed to be a
representation and warranty that the conditions specified in Sections 4.02(a)
----------------
and (b) have been satisfied on and as of the date of such Extension of Credit.
---
SECTION 4.A
CONDITIONS PRECEDENT TO AMENDED AND RESTATED AGREEMENT
4A.01 Conditions of Effectiveness of Amended and Restated Agreement. The
effectiveness of this amended and restated Agreement is subject to satisfaction
of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative Agent with respect
to immaterial matters or items specified in subsection (iii) below with respect
to which Borrower has given assurances satisfactory to Administrative Agent that
they will be delivered promptly following the Restatement Date), Administrative
Agent's receipt of the following, each of which shall be originals or facsimiles
(followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of Borrower, each dated on, or in the case of
third-party certificates, recently before the Restatement Date and each in form
and substance satisfactory to Administrative Agent, Requisite Lenders and their
legal counsel:
-39-
(i) executed counterparts of this Agreement by Borrower and
Requisite Lenders, sufficient in number for distribution to Administrative
Agent, Lenders and Borrower, by no later than 12:00 noon (Pacific time)
March 28, 2001;
(ii) such certificates of resolutions or other action, incumbency
certificates and/or other certificates of Responsible Officers of Borrower
as Administrative Agent and any Lender may require to establish the
identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer thereof;
(iii) such evidence as Administrative Agent and any Lender may
reasonably require to verify that Borrower is duly organized or formed,
validly existing, in good standing and qualified to engage in business in
California and Delaware, including certified copies of Borrower's
Organization Documents, certificates of good standing and/or qualification
to engage in business, tax clearance certificates, and the like;
(iv) a certificate signed by a Responsible Officer of Borrower
certifying (A) that the representations and warranties made by Borrower
herein, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith or
therewith, are true and correct on and as of the Restatement Date, (B) that
Borrower is in compliance with all the terms and provisions of the Loan
Documents to which it is a party, and no Default or Event of Default shall
have occurred and be continuing, (C) that there has been no event or
circumstance since the date of the Audited Financial Statements which has a
Material Adverse Effect, (D) that any material consent, approval, order or
authorization of, or registration, declaration or filing with, any
Governmental Authority required to be obtained or made in connection with
the consummation of the HDD Redemption and Maxtor Merger have been duly
obtained or made, (E) that no litigation, investigation or proceeding of or
before an arbitrator or Governmental Authority is pending, or to the
knowledge of Borrower after due and diligent investigation, threatened by
or against Borrower or any of its Subsidiaries or against any of their
properties or revenues which in any manner challenges or seeks to prevent,
enjoin, alter or delay the HDD Redemption or the Maxtor Merger and (F) that
the Maxtor Merger Effective Time has occurred and the HDD Redemption has
been consummated, each in accordance with the material terms of the Maxtor
Merger Documents and on or before April 30, 2001;
(v) an opinion of counsel to Borrower in form and substance
satisfactory to Administrative Agent and the Requisite Lenders;
(vi) evidence satisfactory to Administrative Agent that the 364-Day
Credit Agreement and all commitments thereunder have been or concurrently
herewith are being terminated; and
(vii) such other assurances, certificates, documents, consents or
opinions as Administrative Agent, Issuing Lender or Requisite Lenders
reasonably may require.
(b) Any fees required to be paid on or before the Restatement Date shall
have been paid.
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(c) Unless waived by Administrative Agent, Borrower shall have paid all
Attorney Costs of Administrative Agent to the extent invoiced prior to or on the
Restatement Date, plus such additional amounts of Attorney Costs as shall
constitute its reasonable estimate of Attorney Costs incurred or to be incurred
by it through the closing proceedings (provided that such estimate shall not
--------
thereafter preclude final settling of accounts between Borrower and
Administrative Agent).
SECTION 5.
REPRESENTATIONS AND WARRANTIES
Borrower represents and warrants to Administrative Agent and Lenders that:
5.01 Existence and Qualification; Power; Compliance with Laws. Borrower is
a corporation duly organized or formed, validly existing and in good standing
under the Laws of the state of its incorporation or organization, has the power
and authority and the legal right to own and operate its properties, to lease
the properties it operates and to conduct its business, is duly qualified and in
good standing under the Laws of each jurisdiction where its ownership, lease or
operation of properties or the conduct of its business requires such
qualification, and is in compliance with all Laws except to the extent that
noncompliance could not be reasonably expected to have a Material Adverse
Effect.
5.02 Power; Authorization; Enforceable Obligations. Borrower has the power
and authority and the legal right to make, deliver and perform each Loan
Document to which it is a party and Borrower has power and authority to borrow
hereunder and has taken all necessary action to authorize the borrowings on the
terms and conditions of this Agreement and to authorize the execution, delivery
and performance of this Agreement and the other Loan Documents to which it is a
party. No consent or authorization of, filing with, or other act by or in
respect of any Governmental Authority, is required in connection with the
borrowings hereunder or with the execution, delivery, performance, validity or
enforceability of this Agreement or any of the other Loan Documents. The Loan
Documents have been duly executed and delivered by Borrower, and constitute
legal, valid and binding obligations of Borrower, enforceable against Borrower
in accordance with their respective terms.
5.03 No Legal Bar. As of their respective dates of execution, the
execution, delivery, and performance by Borrower of the Loan Documents, the
Maxtor Merger Documents and the Snap Spin Off Documents to which it is a party
and compliance with the provisions thereof have been duly authorized by all
requisite action on the part of Borrower and do not and will not (a) violate or
conflict with, or result in a breach of, or require any consent under (i) any
Organization Documents of Borrower or any of its Subsidiaries, (ii) any material
applicable Laws, rules, or regulations or any order, writ, injunction, or decree
of any Governmental Authority or arbitrator, or (iii) any material Contractual
Obligation of Borrower or any of its Subsidiaries or by which any of them or any
of their property is bound or subject, (b) constitute a default under any
material Contractual Obligation, or (c) result in, or require, the creation or
imposition of any Lien on any of the properties of Borrower or any of its
Subsidiaries.
5.04 Financial Statements; No Material Adverse Effect.
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(a) The Audited Financial Statements (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all material indebtedness and other liabilities,
direct or contingent, of Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, material commitments and Indebtedness in
accordance with GAAP consistently applied throughout the period covered thereby.
(b) Since the date of the Audited Financial Statements, there has been no
event or circumstance which has a Material Adverse Effect.
(c) The DSS Combined Financial Statements filed by Borrower with the
Securities and Exchange Commission together with its 10-Q quarterly report for
the fiscal quarter ended December 31, 2000 (i) were prepared in accordance with
GAAP consistently applied throughout the period covered thereby, except for the
absence of footnotes thereto and as otherwise expressly noted therein; (ii)
fairly present the financial condition of the DSS Business on a stand-alone
basis as of the date thereof and the results of operations of such business for
the period covered thereby in accordance with GAAP consistently applied
throughout the period covered thereby, except for the absence of footnotes
thereto and as expressly noted therein, and (iii) show all material indebtedness
and other liabilities, direct or contingent, of Borrower and its Subsidiaries
relating to the DSS Business as of the date thereof, including liabilities for
taxes, material commitments and Indebtedness, in accordance with GAAP
consistently applied throughout the period covered thereby.
5.05 Litigation. No litigation, investigation or proceeding of or before
an arbitrator or Governmental Authority is pending or, to the knowledge of
Borrower after due and diligent investigation, threatened by or against Borrower
or any of its Subsidiaries or against any of their properties or revenues which
could reasonably be expected to have a Material Adverse Effect.
5.06 No Default. Neither Borrower nor any its Subsidiaries are in default
under or with respect to any Contractual Obligation which could reasonably be
expected to have a Material Adverse Effect, and no Default or Event of Default
has occurred and is continuing or will result from the consummation of this
Agreement or any of the other Loan Documents, or the making of the Extensions of
Credit hereunder.
5.07 Ownership of Property; Liens. Borrower and its Subsidiaries have
valid fee or leasehold interests in all real property which they use in their
respective businesses, and Borrower and its respective Subsidiaries have good
and marketable title to all their other property, and none of such property is
subject to any Lien, except as permitted in Section 7.02.
------------
5.08 Taxes. Borrower and its Subsidiaries have filed all material tax
returns which are required to be filed, and have paid, or made provision for the
payment of, all taxes with respect to the periods, property or transactions
covered by said returns, or pursuant to any assessment received by Borrower or
its respective Subsidiaries, except (a) such taxes, if any, as are being
------
contested in good faith by appropriate proceedings and as to which adequate
reserves have been
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established and maintained, and (b) immaterial taxes; provided, however, that in
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each case no material item or portion of property of Borrower or any of its
Subsidiaries is in jeopardy of being seized, levied upon or forfeited.
5.09 Margin Regulations; Investment Company Act; Public Utility Holding
Company Act.
(a) Borrower is not engaged nor will it engage, principally or as one of
its important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" "margin stock" within the respective meanings of each
of the quoted terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. No part of the
proceeds of any Extensions of Credit hereunder will be used for "purchasing" or
"carrying" "margin stock" as so defined or for any purpose which violates, or
which would be inconsistent with, the provisions of Regulations U or X of such
Board of Governors.
(b) Neither Borrower nor any of its Subsidiaries (i) is a "holding
company," or a "subsidiary company" of a "holding company," or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company," within
the meaning of the Public Utility Holding Company Act of 1935, or (ii) is or is
required to be registered as an "investment company" under the Investment
Company Act of 1940.
5.10 ERISA Compliance.
(a) Each Plan is in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state Laws. Each Plan that is
intended to qualify under Section 401(a) of the Code has received a favorable
determination letter from the IRS or an application for such a letter is
currently being processed by the IRS with respect thereto and, to the best
knowledge of Borrower, nothing has occurred which would prevent, or cause the
loss of, such qualification. Borrower and each ERISA Affiliate have made all
required contributions to each Plan subject to Section 412 of the Code, and no
application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has or could reasonably be
expected to have a Material Adverse Effect.
(b) (i) No ERISA Event has occurred or is reasonably expected to occur;
(ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither Borrower
nor any ERISA Affiliate has incurred, or reasonably expects to incur, any
liability under Title IV of ERISA with respect to any Pension Plan (other than
premiums due and not delinquent under Section 4007 of ERISA); (iv) neither
Borrower nor any ERISA Affiliate has incurred, or reasonably expects to incur,
any liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Sections 4201 or
4243 of ERISA with respect to a Multiemployer Plan; and (v) neither Borrower nor
any ERISA Affiliate has engaged in a transaction that could be subject to
Sections 4069 or 4212(c) of ERISA.
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5.11 Intangible Assets. Borrower and its Subsidiaries own, or possess the
right to use, all trademarks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intangible assets that are used in the conduct of
their respective businesses as now operated or could obtain such right without
causing a Material Adverse Effect, and none of such items, to the best knowledge
of Borrower, conflicts with the valid trademark, trade name, copyright, patent,
patent right or intangible asset of any other Person to the extent that such
conflict has or could reasonably be expected to have a Material Adverse Effect.
5.12 Compliance With Laws. Borrower and its Subsidiaries are in compliance
in all material respects with all material Laws that are applicable to it.
5.13 Environmental Compliance. Borrower and its Subsidiaries conduct in
the ordinary course of business a review of the effect of existing Environmental
Laws and claims alleging potential liability or responsibility for violation of
any Environmental Law on their respective businesses, operations and properties,
and as a result thereof Borrower has reasonably concluded that such
Environmental Laws and claims do not, individually or in the aggregate, have a
Material Adverse Effect.
5.14 Insurance. The properties of Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of Borrower, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where Borrower or such Subsidiary operates.
5.15 Swap Obligations. Neither Borrower nor any of its Subsidiaries has
incurred any outstanding obligations under any Swap Contracts, other than
Permitted Swap Obligations. Borrower has undertaken its own independent
assessment of its consolidated assets, liabilities and commitments and has
considered appropriate means of mitigating and managing risks associated with
such matters and has not relied on any swap counterparty or any Affiliate of any
swap counterparty in determining whether to enter into any Swap Contract.
5.16 Maxtor Merger Matters.
(a) The Maxtor Merger Agreement and the other Maxtor Merger Documents
have been duly executed by each of the parties thereto and are enforceable in
accordance with their terms by and against all such parties. Such agreements
have not been amended, modified or supplemented since their respective dates of
execution in any manner that could reasonably be expected to be materially
adverse to the Lenders.
(b) All material conditions precedent to the effectiveness of the Maxtor
Merger have been satisfied (or, with respect to conditions precedent to Maxtor's
obligations thereunder, waived by Maxtor) and the Maxtor Merger has been
consummated in accordance with the terms of the Maxtor Merger Agreement. The HDD
Redemption has been duly authorized by and on behalf of Borrower and has been
consummated in accordance with the terms of the Maxtor Merger Agreement and the
other Maxtor Merger Documents.
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(c) Pursuant to the Maxtor Merger Documents, Maxtor is legally obligated
to indemnify Borrower and Borrower's Subsidiaries to the extent set forth
therein. Maxtor has not disputed, disclaimed or breached in any material respect
such indemnification obligations.
5.17 Snap Spin-Off Matters. (a) As of the dates of the Snap Spin Off
Documents, each, respectively, will be duly executed by each of the parties
thereto in a form substantially identical to the form thereof filed as an
exhibit to the Snap Appliances S-1 and will be enforceable in accordance with
its terms by and against all parties thereto and, as of any date subsequent
thereto, such agreements will not have been amended, modified or supplemented in
any manner that could reasonably be expected to be materially adverse to the
Lenders.
(b) As of the date of the consummation of the Snap Spin-Off, all material
conditions precedent to the effectiveness of the Snap Spin-Off will have been
satisfied and the Snap Spin-Off will have been consummated in accordance with
the terms of the Snap Spin-Off Documents.
(c) As of the dates of the Snap Spin-Off Documents, Snap Appliances will be
legally obligated to indemnify Borrower and Borrower's Subsidiaries to the
extent set forth therein.
(d) Prior to the consummation of the Snap Spin Off, any material consent,
approval, order or authorization of, or registration, declaration or filing
with, any Governmental Authority required to be obtained or made in connection
with the consummation of the Snap Spin Off will have been duly obtained or made.
(e) Immediately prior to the consummation of the Snap Spin Off, no
litigation, investigation or proceeding of or before an arbitrator or
Governmental Authority will be pending, or to the knowledge of Borrower after
due and diligent investigation, threatened by or against Borrower or any of its
Subsidiaries or against any of their properties or revenues which in any manner
challenges or seeks to prevent, enjoin, alter or delay the consummation of the
Snap Spin Off.
(f) Prior to the consummation of the Snap Spin Off, Borrower shall have
obtained a private letter ruling from the IRS to the effect that the
distribution to Borrower's shareholders of all or substantially all of shares of
Snap Appliances held by Borrower will constitute a tax-free reorganization under
the Code.
5.18 Disclosure. (a) No statement, information, report, representation, or
warranty made by Borrower in any Loan Document or furnished to Administrative
Agent or any Lender in connection with any Loan Document contains any untrue
statement of a material fact or, when viewed together with Borrower's periodic
reports filed under the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder, omits to state any material fact
necessary to make the statements herein or therein not misleading.
(b) None of the information supplied or to be supplied by Borrower or any
of its Subsidiaries for inclusion or incorporation by reference in:
(i) the Maxtor Merger S-4 or the Snap Appliances S-1 will at the
time such registration statement is declared or ordered effective under the
Securities Act of 1933, as amended, contain any untrue statement of a
material fact or omit to state any material fact
-45-
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances in which they were made, not
misleading; and
(ii) the proxy statement of Borrower contained in the Maxtor Merger S-
4 shall not, on the date such proxy statement is first mailed to the
stockholders of Borrower, at the time of the meeting of Borrower's
stockholders called for therein and at the Maxtor Merger Effective Time,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they are
made, not false or misleading, or omit to state any material fact necessary
to correct any statement in any earlier communication with respect to the
solicitation of proxies for such stockholders' meeting which has become
false or misleading. The proxy statement of Borrower contained in the
Maxtor Merger S-4 will comply as to form in all material respects with the
provisions of the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
Notwithstanding the foregoing, Borrower makes no representation or warranty with
respect to any information supplied by Maxtor which is contained in any of the
foregoing documents.
SECTION 6.
AFFIRMATIVE COVENANTS
So long as any Obligation remains unpaid or unperformed, or any portion
of the Commitments remains outstanding, Borrower shall, and shall (except in the
case of Borrower's reporting covenants) cause each Subsidiary, to:
6.01 Financial Statements. Deliver to Administrative Agent and each
Lender, in form and detail satisfactory to Administrative Agent and Requisite
Lenders:
(a) As soon as available, but in any event within 90 days after the end of
each fiscal year of Borrower, or if Borrower has been granted an extension by
the Securities and Exchange Commission permitting the late filing by Borrower of
any annual report on form 10-K, the earlier of (x) 120 days after the end of
each fiscal year of Borrower or (y) the last day of any such extension, (i) a
consolidated balance sheet of Borrower and its Subsidiaries as at the end of
such fiscal year, and the related consolidated statements of income and cash
flows for such fiscal year, and (ii) in respect of any period (or partial
period) prior to the Maxtor Merger Effective Time, DSS Combined Financial
Statements for such year-end; in each case, setting forth in each case in
comparative form the figures for the previous fiscal year, all in reasonable
detail, audited and accompanied by a report and opinion of an independent
certified public accountant of nationally recognized standing, which report and
opinion shall be prepared in accordance with GAAP and shall not be subject to
any qualifications or exceptions as to the scope of the audit nor to any
qualifications and exceptions not reasonably acceptable to Requisite Lenders;
and
(b) As soon as available, but in any event within 45 days after the end of
each of the first three fiscal quarters of each fiscal year of Borrower, or if
Borrower has been granted an
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extension by the Securities and Exchange Commission permitting the late filing
by Borrower of any quarterly report on form 10-Q, the earlier of (x) 60 days
after the end of each of the first three fiscal quarters of each fiscal year of
Borrower or (y) the last day of any such extension, (i) a consolidated balance
sheet of Borrower and its Subsidiaries as at the end of such fiscal quarter, and
the related consolidated statements of income and cash flows for such fiscal
quarter and for the portion of Borrower's fiscal year then ended, and (ii) in
respect of any period (or partial period) prior to the Maxtor Merger Effective
Time, DSS Combined Financial Statements for such quarter end; in each case,
setting forth in each case in comparative form the figures for the corresponding
fiscal quarter of the previous fiscal year and the corresponding portion of the
previous fiscal year, all in reasonable detail and certified by a Responsible
Officer of Borrower as fairly presenting the financial condition, results of
operations and cash flows of Borrower and its Subsidiaries in accordance with
GAAP, subject only to normal year-end audit adjustments and the absence of
footnotes; and
(c) Reports required to be delivered pursuant to clauses (a) and (b) of
this Section 6.01 shall be deemed to have been delivered on the date on which
------------
Borrower posts such reports on Borrower's website on the Internet at the website
address listed on Schedule 10.02 hereof or when such report is posted on the
--------------
Securities and Exchange Commission's website at ▇▇▇.▇▇▇.▇▇▇.; provided that
--------
(x)Borrower shall deliver paper copies of the reports referred to in such
clauses (a) and (b) of this Section 6.01 to Administrative Agent or any Lender
------------
who requests Borrower to deliver such paper copies until written request to
cease delivering paper copies is given by Administrative Agent or such Lender,
(y) Borrower shall notify Administrative Agent and Lenders of the posting of any
such new material, and (z) in every instance Borrower shall provide paper copies
of the Compliance Certificates required by clause (a) of Section 6.02 to
------------
Administrative Agent and each Lender. Except for the Compliance Certificates
referred to in such clause (a) of Section 6.02, Administrative Agent shall have
------------
no obligation to request the delivery or to maintain copies of the reports
referred to in clauses (a) and (b) of this Section 6.01, and in any event shall
------------
have no responsibility to monitor compliance by Borrower with any such request
for delivery, and each Lender shall be solely responsible for requesting
delivery to it or maintaining its copies of such reports.
6.02 Certificates, Notices and Other Information. Deliver to
Administrative Agent and each Lender, in form and detail satisfactory to
Administrative Agent and Requisite Lenders:
(a) concurrently with the delivery of the financial statements referred to
in Sections 6.01(a) and (b), a duly completed Compliance Certificate signed by a
---------------- ---
Responsible Officer of Borrower;
(b) promptly after the same are available, copies of each annual report,
proxy or financial statement or other report or communication sent to the
stockholders of Borrower, and copies of all annual, regular, periodic and
special reports and registration statements which Borrower may file or be
required to file with the Securities and Exchange Commission under Sections 13
or 15(d) of the Securities Exchange Act of 1934, as amended, and not otherwise
required to be delivered to Administrative Agent pursuant hereto;
(c) promptly after the occurrence thereof, notice of any Default or Event
of Default;
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(d) notice of any change in accounting policies or financial reporting
practices by Borrower or any Subsidiary that is material to Borrower or to
Borrower and its Subsidiaries on a consolidated basis;
(e) promptly after the commencement thereof, notice of any litigation,
investigation or proceeding affecting Borrower where the reasonably expected
damages to Borrower exceed the Threshold Amount, or in which injunctive relief
or similar relief is sought, which relief, if granted, has a Material Adverse
Effect;
(f) promptly after the occurrence thereof, notice of any Reportable Event
with respect to any Plan or the intent to terminate any Plan, or the institution
of proceedings or the taking or expected taking of any other action to terminate
any Plan or withdraw from any Plan;
(g) promptly after the occurrence thereof, notice of any Material Adverse
Effect;
(h) promptly after the occurrence thereof, notice of (i) any material
amendment of or supplement to, or the occurrence of any material breach under,
any of the Maxtor Merger Documents or the Snap Spin-Off Documents, and (ii) the
consummation of each step in the Snap Spin-Off; and
(i) promptly, such other data and information as from time to time may be
reasonably requested by Administrative Agent, or, through Administrative Agent
or any Lender. Notwithstanding any provision of this Agreement to the contrary,
so long as no Default or Event of Default shall have occurred and be continuing,
neither Borrower nor any of its Subsidiaries shall be required to disclose,
permit the inspection, examination, photocopying or making extracts of, or
discuss, any document, information or other matter that (i) constitutes non-
financial trade secrets or non-financial proprietary information, or (ii) the
disclosure of which to any Lender, or their designated representative, is then
prohibited by law or any agreement binding on Borrower or any of its
Subsidiaries that was not entered into by Borrower or any such Subsidiary for
the purpose of concealing information from the Lenders.
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of Borrower setting forth details of the occurrence
referred to therein and stating what action Borrower has taken and proposes to
take with respect thereto.
6.03 Payment of Taxes. Pay and discharge when due all material taxes,
assessments, and governmental charges, except for any such tax, assessment,
charge, or levy which is an Ordinary Course Lien under subsection (b) of the
definition of such term.
6.04 Preservation of Existence. Preserve and maintain its existence,
licenses, permits, rights, franchises and privileges necessary or desirable in
the normal conduct of its business, except (i) as permitted by Section 7.03, or
(ii) where failure to do so does not have a Material Adverse Effect.
6.05 Maintenance of Properties. Maintain, preserve and protect all of its
material properties and equipment necessary in the operation of its business in
good order and condition, subject to wear and tear in the ordinary course of
business, and not permit any waste of its
-48-
properties, except where failure to do so would not reasonably be expected to
have a Material Adverse Effect.
6.06 Maintenance of Insurance. Maintain liability and casualty insurance
with responsible insurance companies satisfactory to Lender in such amounts and
against such risks as is customary for similarly situated businesses.
6.07 Compliance With Laws.
(a) Comply with the requirements of all applicable Laws and orders of any
Governmental Authority, noncompliance with which has a Material Adverse Effect.
(b) Conduct its operations and keep and maintain its property in material
compliance with all Environmental Laws.
6.08 Inspection Rights. At any time during regular business hours and as
often as reasonably requested upon reasonable notice, permit Administrative
Agent or any Lender, or any employee, agent or representative thereof, to
examine, audit and make copies and abstracts from Borrower's records and books
of account and to visit and inspect its properties and to discuss its affairs,
finances and accounts with any of its officers and key employees, and, upon
request, furnish promptly to Administrative Agent or any Lender true copies of
all financial information and internal management reports made available to
their senior management.
6.09 Keeping of Records and Books of Account. Keep adequate records and
books of account reflecting all financial transactions in conformity with GAAP,
consistently applied, and in material conformity with all applicable
requirements of any Governmental Authority having regulatory jurisdiction over
Borrower or any applicable Subsidiary.
6.10 Compliance with ERISA. Cause, and cause each of its ERISA Affiliates
to: (a) maintain each Plan in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law; (b)
cause each Plan which is qualified under Section 401(a) of the Code to maintain
such qualification; and (c) make all required contributions to any Plan subject
to Section 412 of the Code.
6.11 Compliance With Agreements. Promptly and fully comply with all
Contractual Obligations to which any one or more of them is a party, except for
any such Contractual Obligations (a) the nonperformance of which would not cause
a Default or Event of Default, (b) then being contested by any of them in good
faith by appropriate proceedings, or (c) if the failure to comply therewith
could not reasonably be expected to have a Material Adverse Effect.
6.12 Use of Proceeds. Use the proceeds of Extensions of Credit for lawful
general corporate purposes including working capital and capital expenditures
not otherwise in contravention of this Agreement.
6.13 Maxtor Merger and Snap Spin-Off Matters.
(a) Without the consent of Administrative Agent and the Requisite Lenders,
Borrower shall not, and shall not permit any Subsidiary or Affiliate to (i)
amend or supplement the terms of
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any Maxtor Merger Document to which it is a party in a manner that could
reasonably be expected to be materially adverse to the Lenders, (ii) agree to
transfer any asset or assume any liability pursuant to Section 1.1(d) of the HDD
General Assignment Agreement, (iii) agree to transfer any asset or assume any
liability pursuant to an Ancillary Agreement (as defined in Section 2.1(h) of
the HDD Separation Agreement), (iv) agree that any asset is an HDD Asset
pursuant to Section 1.2(l) of the HDD General Assignment Agreement, (v) agree
that any liability is an Excluded HDD Liability pursuant to Section 1.5(f) of
the HDD General Assignment Agreement (other than those set forth on Schedule 1.5
thereto) or (vi) otherwise agree to transfer assets to or assume liabilities of
Maxtor or Spinco in a manner not set forth in the Maxtor Merger Documents;
provided that Borrower may, and may permit any Subsidiary or Affiliate to, take
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any of the actions described in clauses (ii) through (vi) above if after giving
effect to the same, in the aggregate (and assuming that any of the same
consisting of contingent or off-balance sheet liabilities are incurred and
accounted for in an amount equal to that which could reasonably be expected to
be paid by Borrower or its Subsidiary or Affiliate in connection therewith),
Borrower will remain in compliance with the covenants set forth in Section 7.12.
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(b) Without the consent of Administrative Agent and the Requisite Lenders,
Borrower shall not, and shall not permit any Subsidiary or Affiliate to (i)
amend or supplement the terms of any Snap Spin-Off Document to which it is a
party in a manner that could reasonably be expected to be materially adverse to
the Lenders, (ii) agree to transfer any asset or assume any liability pursuant
to Section 1.1(d) or 1.4(b) of the Snap General Assignment Agreement, (iii)
agree to transfer any asset or assume any liability pursuant to an Ancillary
Agreement (as defined in Section 2.1(h) of the Snap General Assignment
Agreement), (iv) agree that any asset is an Snap Asset pursuant to Section
1.2(a)(iv) of the Snap General Assignment Agreement, (v) agree to assume any
liability pursuant to Section 2.1 of the Snap Employment Matters Agreement or
(vi) otherwise agree to transfer Snap assets to or assume liabilities of Snap
Appliances in a manner not set forth in the Snap Spin-Off Documents; provided
--------
that Borrower may, and may permit any Subsidiary or Affiliate to, take any of
the actions described in clauses (ii) through (vi) above after giving effect to
the same, in the aggregate (and assuming that any of the same consisting of
contingent or off-balance sheet liabilities are incurred and accounted for in an
amount equal to that which could reasonably be expected to be paid by Borrower
or its Subsidiary or Affiliate in connection therewith), Borrower will remain in
compliance with the covenants set forth in Section 7.12.
------------
SECTION 7.
NEGATIVE COVENANTS
So long as any Obligations remain unpaid or unperformed, or any portion of
the Commitments remains outstanding, Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
7.01 Indebtedness. Create, incur, assume or suffer to exist any
Indebtedness, except for the following ("Permitted Indebtedness"):
------ ----------------------
(a) Indebtedness outstanding on the date hereof and listed on Schedule 7.01
-------------
and any refinancings, refundings, renewals or extensions thereof, provided that
--------
the amount of such
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Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to the premium or other amount
paid, and fees and expenses incurred, in connection with such refinancing and by
an amount equal to any utilized commitments thereunder;
(b) Ordinary Course Indebtedness;
(c) Indebtedness of Borrower under the Convertible Subordinated Debentures;
(d) Indebtedness of Borrower and its Subsidiaries under loans and Capital
Leases incurred by Borrower or any of its Subsidiaries to finance the
acquisition by such Person of real property, improvements, fixtures, equipment
or other fixed assets (together with attachments, ascensions, additions, "soft
costs" and proceeds thereof), provided that in each case, (i) such Indebtedness
--------
is incurred by such Person at the time of, or not later than 6 months after, the
acquisition by such Person of the property so financed, and (ii) such
Indebtedness does not exceed the purchase price of the property so financed;
(e) Indebtedness of Borrower and any of its Subsidiaries under Synthetic
Lease Obligations incurred by such Person;
(f) Indebtedness of Borrower and its Subsidiaries in respect of any
Permitted Receivables Facility;
(g) Indebtedness of Borrower and its Subsidiaries under initial or
successive refinancings, refundings, renewals or extensions of any Indebtedness
permitted by subsections (d) and (e) above, provided that the amount of such
--------
Indebtedness is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to the premium or other amount
paid, and fees and expenses incurred, in connection with such refinancing;
(h) Indebtedness of Borrower to any of Borrower's Subsidiaries,
Indebtedness of any of Borrower's Subsidiaries (other than Snap Appliances,
except as permitted pursuant to Section 7.05(i)) to Borrower or Indebtedness of
any of Borrower's Subsidiaries (other than Snap Appliances, except as permitted
pursuant to Section 7.05(i)) to any of Borrower's other Subsidiaries;
(i) Subordinated Indebtedness of Borrower to any Person, provided that (A)
--------
such Indebtedness contains subordination provisions no less favorable to
Administrative Agent and Lenders than those set forth in Schedule 7.13 or as
-------------
otherwise approved by Requisite Lenders and (B) the aggregate principal amount
of all Subordinated Debt of Borrower outstanding (including the Convertible
Subordinated Debentures) does not exceed $350,000,000 at any time; and
(j) Indebtedness not exceeding, in the aggregate at any time, 10% of the
total consolidated assets of Borrower and its Subsidiaries determined as of the
end of the most recent fiscal quarter; provided that if such fiscal quarter end
--------
date is prior to the Maxtor Merger Effective Time, such Indebtedness shall not
exceed 10% of the combined assets of DSS, based upon the most-recent DSS
Combined Financial Statements; and
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(k) Indebtedness in the form of Guarantee Obligations set forth in the
terms of the Maxtor Merger Agreement.
7.02 Liens. Incur, assume or suffer to exist, any Lien upon any of its
property, assets or revenues, whether now owned or hereafter acquired, except
------
for the following ("Permitted Liens"):
---------------
(a) Liens existing on the date hereof and listed on Schedule 7.01 and any
-------------
renewals or extensions thereof, provided that the property covered thereby is
--------
not increased and any renewal or extension of the obligations secured or
benefited thereby is permitted by Section 7.01(a);
---------------
(b) Ordinary Course Liens;
(c) Liens granted by a Person securing Investments of such Person which
constitute Permitted Investments under Section 7.05(d);
---------------
(d) Liens on cash or cash equivalents securing reimbursement obligations
of Borrower under letters of credit (other than any Letters of Credit) in an
aggregate amount of all such cash and cash equivalents not to exceed
$50,000,000;
(e) Liens in respect accounts receivable and any related property that are
the subject of a Permitted Receivables Facility;
(f) Liens on the property or assets of any corporation which becomes a
Subsidiary of Borrower after the date of this Agreement, provided that (i) such
--------
Liens exist at the time such corporation became a Subsidiary, and (ii) such
Liens were not created in contemplation of such acquisition by Borrower;
(g) Rights of vendors or lessors under conditional sale agreements, Capital
Leases or other title retention agreements, provided that in each case, (i) such
--------
rights secure or otherwise relate to Permitted Indebtedness, (ii) such rights do
not extend to any property other than property acquired with the proceeds of
such Permitted Indebtedness (together with accessions, additions, replacements
and proceeds thereof), and (iii) such rights do not secure any Indebtedness
other than Permitted Indebtedness;
(h) Liens securing Indebtedness and any related obligations of Borrower or
any of its Subsidiaries which constitutes Permitted Indebtedness under Section
-------
7.01(f) (or refinancings of such Indebtedness under Section 7.01(g)), provided
------- --------------- --------
that such Liens cover only those assets subject to Synthetic Lease Obligations
(together with accessions, additions, replacements and proceeds thereof);
(i) Liens incurred in connection with leases, subleases, licenses and
sublicenses granted to Persons not interfering in any material respect with the
business of Borrower and its Subsidiaries and any interest or title of a lessee
or licensee under any such leases, subleases, licenses or sublicenses;
(j) Liens in favor of Lenders in connection with the Letter of Credit Cash
Collateral Account; and
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(k) Liens not otherwise permitted hereunder on the property or assets of
Borrower and any of its Subsidiaries securing (i) borrowed money Indebtedness of
the Person granting such Lien, (ii) all obligations of Borrower arising other
than in connection with any securitization which are evidenced by bonds,
debentures, notes or other similar instruments, or (iii) Indebtedness consisting
of letter of credit reimbursement obligations, provided that, in each case, (x)
--------
the aggregate principal amount of all Indebtedness secured by such Liens does
not exceed at any time 10% of the total assets of Borrower and its Subsidiaries
determined as of the end of the fiscal quarter immediately preceding the date of
determination (provided that if such fiscal quarter end date is prior to the
--------
Maxtor Merger Effective Time, the aggregate principal amount of all Indebtedness
secured by such Liens shall not exceed 10% of the combined assets of DSS, based
upon the most-recent DSS Combined Financial Statements) and (y) such Liens do
not encumber current assets of Borrower and its Subsidiaries in excess of
$50,000,000.
7.03 Fundamental Changes. Merge or consolidate with or into any Person or
liquidate, wind-up or dissolve itself, or permit or suffer any liquidation or
dissolution or sell all or substantially all of its assets, except that:
------
(a) any Subsidiary may merge with (i) Borrower, provided that Borrower
--------
shall be the continuing or surviving corporation, (ii) any one or more
Subsidiaries, and (iii) any joint venture, partnership or other Person, so long
as such joint venture, partnership and other Person will, as a result of making
such merger and all other contemporaneous related transactions, become a
Subsidiary;
(b) any Subsidiary may sell all or substantially all of its assets (upon
voluntary liquidation or otherwise), to Borrower or to another Subsidiary;
(c) Borrower may merge with any other corporation, provided that (i)
--------
Borrower is the surviving corporation, and (ii) immediately after giving effect
to such merger, no Default or Event of Default shall have occurred and be
continuing;
(d) any Subsidiary may merge or consolidate with or into any other Person
or sell all or substantially all of its assets to the extent such transaction is
a Disposition otherwise permitted under Section 7.04 or an Investment otherwise
------------
permitted under Section 7.05 and immediately after giving effect to such merger
------------
or consolidation, no Default or Event of Default shall have occurred and be
continuing; and
(e) Spinco may merge with Maxtor pursuant to and as set forth in Section
2.2 of the Maxtor Merger Agreement.
7.04 Dispositions. Make any Dispositions, except:
------
(a) Ordinary Course Dispositions;
(b) Dispositions permitted by Section 7.03;
------------
(c) Dispositions which constitute the making of or liquidation of Permitted
Investments;
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(d) Dispositions to Snap Appliances of assets and liabilities of Borrower
related to the Snap Business pursuant to the Snap Spin-Off Documents that are
permitted pursuant to Section 7.05(i);
(e) Disposition of Snap Appliances stock permitted by Section 7.06(f);
(f) Dispositions not otherwise permitted hereunder not exceeding 20% of
Consolidated Tangible Net Worth for the four fiscal quarter period ending as of
the end of the fiscal quarter immediately preceding the date of determination,
other than Dispositions by Borrower or any Subsidiary to Snap Appliances or
relating to stock of Snap Appliances;
(g) Dispositions of accounts receivables and any related property that are
the subject of a Permitted Receivables Facility by Borrower and its
Subsidiaries; and
(h) Dispositions of the HDD Business pursuant to the Maxtor Merger
Documents and ancillary documents executed contemporaneously therewith.
7.05 Investments. Make any Investments, except for the following
("Permitted Investments"):
---------------------
(a) Investments existing on the date hereof;
(b) Ordinary Course Investments;
(c) Investments permitted by Section 7.01 or Section 7.03;
------------ ----
(d) Investments arising from rights received by Borrower and its
Subsidiaries upon the required payment of any permitted contingent obligations
of Borrower and its Subsidiaries;
(e) Investments in the nature of Acquisitions, provided that the aggregate
--------
amount of such Acquisitions in any period of four consecutive fiscal quarters
does not exceed 20% of Consolidated Tangible Net Worth as determined as of the
fiscal quarter immediately preceding the date of determination;
(f) Investments of Borrower and its Subsidiaries in Swap Contracts,
provided that all such arrangements are entered into in connection with bona
--------
fide hedging operations and not for speculation;
(g) Investments by Quantum Technology Ventures (or any other Subsidiary of
Borrower with the primary purpose of making venture investments) and other
Investments which Borrower's Board of Directors determines to be strategic for
Borrower in an aggregate cost basis, at any time invested for all such entities
and investments together, not to exceed the sum of (x) $150,000,000 and (y) the
aggregate gain or loss on such Investments previously made under this clause
(g);
(h) Investments not otherwise permitted hereunder, provided that the
--------
aggregate amount of such other Investments made after the Closing Date (less any
return on any such Investments)
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does not exceed 20% of Consolidated Tangible Net Worth as determined as of the
fiscal quarter immediately preceding the date of determination; and
(i) Investments in Snap Appliances from and after the Restatement Date but
prior to the consummation of the Snap Spin Off in an aggregate amount not
exceeding $100,000,000.
7.06 Restricted Payments. Make any Restricted Payments, except as follows:
------
(a) (i) Borrower may pay dividends or other distributions payable solely
in shares of capital stock of Borrower and (ii) any Subsidiary of Borrower may
make Restricted Payments to (A) Borrower or (B) any other Subsidiary of Borrower
(other than Snap Appliances, except that any Subsidiary of Snap Appliances may
make Restricted Payments to Snap Appliances);
(b) Borrower may distribute rights pursuant to a shareholder rights plan or
redeem such rights, provided that such redemption is in accordance with the
--------
terms of such shareholder rights plan;
(c) Borrower may make Restricted Payments in connection with or pursuant
to any of its Employee Benefits Plans or in connection with the employment,
termination or compensation of its employees, officers or directors;
(d) Borrower may make Restricted Payments with the Net Proceeds received
from a substantially concurrent issuance of Equity Securities or capital stock
or with its Equity Securities or capital stock or Borrower may convert any
Equity Securities in accordance with their terms into other Equity Securities;
(e) Borrower may purchase Equity Securities pursuant to one or more stock
repurchase programs, provided that (i) no Default or Event of Default shall have
--------
occurred and be continuing, and (ii) after giving effect to any such repurchases
Borrower shall be in compliance with Section 7.12;
------------
(f) Borrower may, on or before the date twelve months subsequent to the
Restatement Date, dividend or distribute to its shareholders all or
substantially all stock of Snap Appliances held by it pursuant to the Snap Spin-
Off, provided there exists no Default or Exist of Default; and
(g) Borrower may declare or pay any dividends in respect of its Equity
Securities or purchase or redeem shares of its Equity Securities or make
distributions to shareholders not otherwise permitted hereunder, provided that
--------
the aggregate amount paid or distributed in any period of four consecutive
quarters (excluding any amounts covered by subsection (b) above) does not exceed
5% of Consolidated Tangible Net Worth as determined as of the fiscal quarter
immediately preceding the date of determination.
7.07 ERISA. At any time engage in a transaction which could be subject to
Sections 4069 or 4212(c) of ERISA, or permit any Pension Plan to (a) engage in
any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (b) fail to comply with ERISA or any other applicable Laws; or (c) incur
any material "accumulated funding deficiency" (as
-55-
defined in Section 302 of ERISA), which, with respect to each event listed
above, has a Material Adverse Effect.
7.08 Change in Nature of Business. 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.
7.09 Transactions with Affiliates. Enter into any transaction of any kind
with any Affiliate (other than transactions among Borrower or any of its
Subsidiaries and any Subsidiary) of Borrower other than arm's-length
transactions with Affiliates that are otherwise permitted hereunder.
7.10 Use of Proceeds. Borrower shall not, and shall not suffer or permit
any Subsidiary to, use any portion of the Loan proceeds or any Letter of Credit,
directly or indirectly, (i) for any Acquisition unless the prior, effective
written consent or approval to such Acquisition of the board of directors or
equivalent governing body of the acquiree is obtained, or (ii) to acquire any
security in any transaction that is subject to Section 13 (other than an
Investment Transaction) or Section 14 of the Securities Exchange Act of 1934, as
amended, unless, prior to the time such transaction becomes subject to such
Section 13 or 14, the board of directors or other applicable governing body of
the Person that is the issuer of such securities has adopted a resolution
approving such transaction and approving any "change in control" with respect to
such Person whereby Borrower or such Subsidiary may acquire control of such
Person. For purposes of this Section 7.10, (x) an "Investment Transaction" means
------------ ----------------------
a transaction subject to Section 13(d), but not Section 16, of the Securities
Exchange Act of 1934, as amended, provided that in connection with such
transaction Borrower or its Subsidiary (as the case may be) has reported and at
all times continues to report to the SEC that such transaction is undertaken for
investment purposes only and not for any of the purposes specified in clauses
4(a) through (j), inclusive, of the special instructions for complying with
Schedule 13D under the Securities Exchange Act of 1934, as amended, and (y)
"change in control" means, for any Person, an Acquisition with respect to such
Person.
7.11 Certain Indebtedness Payments, Etc. Neither Borrower nor any of its
Subsidiaries shall pay, prepay, redeem, purchase, defease or otherwise satisfy
in any manner prior to the scheduled payment thereof any Subordinated Debt
except as otherwise permitted under this Section 7.11; amend, modify or
------------
otherwise change the terms of any document, instrument or agreement evidencing
Subordinated Debt such that such amendment, modification or change would (i)
cause the outstanding aggregate principal amount of all such Subordinated Debt
so amended, modified or changed to be increased as a consequence of such
amendment, modification or change, (ii) cause the subordination provisions
applicable to such Subordinated Debt to be less favorable to Administrative
Agent and Lenders than those set forth on Schedule 7.13, (iii) increase the
-------------
interest rate applicable thereto, or (iv) accelerate the scheduled payment
thereof, except that, subject to the other terms and provisions hereof, Borrower
may:
(a) (1) call for redemption of the entire outstanding amount of
the Convertible Subordinated Debentures; and
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(2) to the extent such Convertible Subordinated Debentures are
not converted prior to the redemption date, redeem up to 30% of any
such outstanding Convertible Subordinated Debentures less the amount
of Subordinated Debt purchased by Borrower pursuant to clause (b)(2)
of this Section, provided that
--------
(A) no Default or Event of Default has occurred and is
continuing or would result from such call for redemption or
redemption; and
(B) the closing price of a share a common stock of Borrower
shall have exceeded 120% of the then applicable conversion price
for 20 trading days within a period of 30 consecutive trading
days ending within 5 trading days prior to the notice of
redemption. Borrower shall not cause or permit any of its
obligations, except the obligations constituting Senior
Indebtedness to constitute "Designated Senior Indebtedness" under
the Indenture governing the Convertible Subordinated Debentures
(it being understood that the Obligations of Borrower under this
Agreement shall at all times constitute "Designated Senior
Indebtedness"); or
(b) (1) pay, prepay, redeem, purchase, defease or otherwise satisfy
in any manner any Subordinated Debt, with the Net Proceeds from the
substantially contemporaneous issuance of Equity Securities by
Borrower or in exchange for Equity Securities of Borrower; and
(2) otherwise purchase outstanding Subordinated Debt, provided
--------
that the aggregate value of all such Subordinated Debt repurchased,
together with the amount of all redemptions undertaken pursuant to
clause (a) of this Section, does not at any time exceed 30% of the
total amount of any Convertible Subordinated Debentures outstanding as
of the Closing Date; and
(c) Borrower may convert, or honor a conversion request with respect
to, any such Subordinated Debt into Equity Securities of Borrower in
accordance with the terms of, and pay any cash to holders of such
Subordinated Debt in connection with, such a conversion solely to the
extent representing the value of any fractional shares.
7.12 Financial Covenants.
(a) Consolidated Tangible Net Worth. Permit Consolidated Tangible Net Worth
on the last day of any fiscal quarter (such date to be referred to herein as a
"determination date"), commencing with the fiscal quarter ended March 31, 2000,
to be less than the greater of:
(i) 75% of Consolidated Tangible Net Worth as of March 31, 2000, or
(ii) the sum of:
(A) an amount equal to 75% of Consolidated Tangible Net Worth as
of March 31, 2000; plus
----
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(B) an amount equal to 75% of the sum of positive
Consolidated Net Income (ignoring any quarterly losses and any
charge for In-Process Research and Development described in clause
(F) below) for each fiscal quarter after the quarter ended March
31, 2000, through and including the quarter ending on the
determination date; plus
----
(C) an amount equal to 75% of the Net Proceeds of all Equity
Securities issued by Borrower (excluding any issuance where the Net
Proceeds to the Borrower therefor are less than $10,000,000) during
the period commencing on March 31, 2000 and ending on the
determination date; plus
----
(D) an amount equal to 75% of the increase in shareholders'
equity resulting, in accordance with GAAP, from any conversion of
Convertible Subordinated Debentures into Equity Securities; minus
-----
(E) the lesser of (x) the aggregate amount paid by Borrower
to repurchase Equity Securities during the period commencing on
March 31, 2000 and ending on the determination date and (y)
$200,000,000; minus
-----
(F) the lesser of (x) the aggregate amount of charges taken
by Borrower for In-Process Research & Development associated with
Acquisitions during the period commencing on March 31, 2000 and
ending on the determination date, and (y) $100,000,000, provided
--------
that any such charges were taken by Borrower during the quarter in
which any such Acquisition was completed; and minus
-----
(G) for any fiscal quarter ending after the Snap Spin-Off is
consummated, the lesser of (x) net book value of Snap Appliances as
of the Restatement Date (as determined in accordance with GAAP and
reflected on Borrowers' financial statements for the fiscal quarter
ending March 30, 2001) and (y) $150,000,000.
(b) Minimum Quick Ratio. Permit the Quick Ratio determined as of the last
day of any fiscal quarter of Borrower (commencing with the quarter ending March
31, 2000) to be less than 1.10:1.
(c) Maximum Leverage Ratio. Permit the Leverage Ratio, determined as of
the last day of any fiscal quarter of Borrower, commencing with the fiscal
quarter ending March 31, 2000 (measured on a rolling four quarter basis for the
four fiscal quarters then ended), to be greater than 2.00:1.
(d) Minimum Profitability. Suffer or permit there to exist, as of the last
day of any fiscal quarter, for the four fiscal quarters ending on such date,
commencing with the fiscal quarter ending March 31, 2000, (i) any two fiscal
quarters in which the aggregate negative Consolidated Net Income for such fiscal
quarters exceeds 5% of Consolidated Tangible Net Worth as of such date, or (ii)
cumulative Consolidated Net Income for such four-quarter period of less than
$1.00. For purposes of calculating this covenant, charges for In-Process
Research & Development associated with Acquisitions shall be excluded, (x)
provided that any such charges for In-Process Research & Development are taken
--------
during the quarter in which any such Acquisitions are completed, and (y) to the
extent that the aggregate amount of any such charges
-58-
for In-Process Research & Development taken does not exceed $100,000,000 from
and after the Closing Date.
7.13 Accounting Changes. Change (i) its fiscal year (currently April 1
to March 31), or (ii) its accounting practices except as permitted by GAAP.
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default. Any one or more of the following events shall
constitute an Event of Default:
(a) Borrower fails to pay any principal on any Outstanding Obligation
(other than fees) as and on the date when due; or
(b) Borrower fails to pay any interest on any Outstanding Obligation or
any commitment fees due hereunder within three days after the date when due; or
fails to pay any other fees or amount payable to Administrative Agent or any
Lender under any Loan Document within five days after the date due; or
(c) Any default occurs in the observance or performance of any agreement
contained in Section 6.12 or 7; or
------------ -
(d) The occurrence of an Event of Default (as such term is or may
hereafter be specifically defined in any other Loan Document) under any other
Loan Document; or Borrower fails to perform or observe any other covenant or
agreement (not specified in subsections (a), (b) or (c) above) contained in any
Loan Document on its part to be performed or observed and such failure continues
for 30 days; or
(e) Any representation or warranty in any Loan Document proves to have
been incorrect in any material respect when made or deemed made; or
(f) (i) Borrower (x) defaults in any payment when due of principal of or
interest on any Indebtedness (other than Indebtedness hereunder) having an
aggregate principal amount in excess of the Threshold Amount, or (y) defaults in
the observance or performance of any other agreement or covenant relating to any
Indebtedness (other than Indebtedness hereunder) or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event shall
occur, the effect of which default or other event is to cause, or to permit the
holder or holders of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with the giving of
notice if required, (I) Indebtedness having an aggregate principal amount in
excess of the Threshold Amount to become due (automatically or otherwise) prior
to its stated maturity, or (II) if in respect of a Guaranty Obligation, any
Guaranty Obligation in excess of the Threshold Amount to become payable or cash
collateral in respect thereof to be demanded on account of such default or other
event; (ii) Borrower is unable or admits in writing its inability to pay its
debts generally as they mature; or (iii) the occurrence under any Swap Contract
of an Early Termination Date (as defined in such Swap Contract) resulting from
(x) any event of default under such Swap Contract as to which
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Borrower or any Subsidiary is the Defaulting Party (as defined in such Swap
Contract) or (y) any termination event under any Swap Contract (as defined
therein) as to which Borrower or any Subsidiary is an affected party (as so
defined) (other than termination events resulting solely from changes in the
value of Borrower's stock price or other rates, prices or indices underlying any
such Swap Contract), and as to which, in either event, the Swap Termination
Value owed by Borrower or such Subsidiary as a result thereof is greater than
the Threshold Amount; provided, however, that a Voluntary Redemption Event shall
-------- -------
not constitute an Event of Default under this Section 8.01(f); or
---------------
(g) Any Loan Document, at any time after its execution and delivery and
for any reason other than the agreement of all Lenders or satisfaction in full
of all the Obligations, ceases to be in full force and effect or is declared by
a court of competent jurisdiction to be null and void, invalid or unenforceable
in any respect; or Borrower denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document; or
(h) (i) A final judgment against Borrower is entered for the payment of
money in excess of the Threshold Amount, or any non-monetary final judgment is
entered against Borrower which has a Material Adverse Effect and, in each case
if such judgment remains unsatisfied without procurement of a stay of execution
within 30 calendar days after the date of entry of judgment; or (ii) any writ or
warrant of attachment or execution or similar process is issued or levied
against all or any material part of the property of any such Person and is not
released, vacated or fully bonded (A) within 30 calendar days after its issue or
levy or (B) if earlier, five days prior to the date of any proposed sale.
(i) Borrower or any of its Material Subsidiaries institutes or consents to
the institution of any proceeding under Debtor Relief Laws, or makes an
assignment for the benefit of creditors; or applies for or consents to the
appointment of any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent
of that Person and the appointment continues undischarged or unstayed for 60
calendar days; or any proceeding under Debtor Relief Laws relating to any such
Person or to all or any part of its property is instituted without the consent
of that Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or
(j) (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount; (ii) the aggregate amount of Unfunded Pension Liability among all
Pension Plans at any time exceeds the Threshold Amount; or (iii) Borrower or any
ERISA Affiliate fails to pay when due, after the expiration of any applicable
grace period, any installment payment with respect to its withdrawal liability
under Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
excess of the Threshold Amount; or
(k) There occurs (i) any Change of Control, or (ii) any event relating to
a change in the corporate ownership, control or governance of Borrower or any
Subsidiary as issuer ("Issuer") of
------
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any notes, bonds, debentures, Subordinated Debt or other debt securities, the
result of which is to cause Indebtedness evidenced by any such notes, bonds,
debentures, Subordinated Debt or other debt securities to be subject to
mandatory redemption or repurchase by Issuer, provided the outstanding amount of
--------
such outstanding Indebtedness exceeds the Threshold Amount; or
(l) Borrower, one or more Subsidiaries of Borrower, or Borrower
together with one or more of its Subsidiaries incurs a Tax Loss and the portion
of such Tax Loss (individually, or together with all other prior Tax Losses)
which is not insured is in excess of the Threshold Amount, where an "insured"
Tax Loss means a Tax Loss which is the subject of a bona fide insurance policy
or contract with an insurer or syndicate of insurers of national repute and as
to which such insurer or insurers have not disputed or disclaimed contractual
liability for such Tax Loss or otherwise breached the terms of such policy or
contract.
8.02 Certain Financial Covenant Defaults. In the event that, after
taking into account any extraordinary charge to earnings taken or to be taken as
of the end of any fiscal period of Borrower (a "Charge"), and if solely by
------
virtue of such Charge, there would exist an Event of Default due to breach of
Section 7.12 as of such fiscal period end date, such Event of Default shall be
------------
deemed to arise upon the earlier of (i) the date after such fiscal period end
date on which Borrower announces publicly it will take, is taking or has taken
such Charge (including an announcement in the form of a statement in a report
filed with the SEC) or, if such announcement is made prior to such fiscal period
end date, the date that is such fiscal period end date, and (ii) the date
Borrower delivers to Administrative Agent its audited annual or unaudited
quarterly financial statements in respect of such fiscal period reflecting such
Charge as taken.
8.03 Remedies Upon Event of Default. Without limiting any other rights
or remedies of Administrative Agent or Lenders provided for elsewhere in this
Agreement, or the other Loan Documents, or by applicable Law, or in equity, or
otherwise:
(a) Upon the occurrence, and during the continuance, of any Event of
Default other than an Event of Default described in Section 8.01(i):
---- ---------------
(i) Requisite Lenders may request Administrative Agent to, and
Administrative Agent thereupon shall, terminate the Commitments and/or
declare all or any part of the unpaid principal of all Loans, all
interest accrued and unpaid thereon and all other amounts payable under
the Loan Documents to be immediately due and payable, whereupon the
same shall become and be immediately due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind,
all of which are expressly waived by Borrower; and
(ii) Issuing Lender may, with the approval of Administrative
Agent on behalf of Requisite Lenders, demand immediate payment by
Borrower of an amount equal to the aggregate amount of all outstanding
Letters of Credit Usage to be held in a Letter of Credit Cash
Collateral Account.
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(b) Upon the occurrence of any Event of Default described in Section
-------
8.01(i):
-------
(i) the Commitments and all other obligations of Administrative
Agent or Lenders shall automatically terminate without notice to or demand
upon Borrower, which are expressly waived by Borrower;
(ii) the unpaid principal of all Loans, all interest accrued and
unpaid thereon and all other amounts payable under the Loan Documents shall
be immediately due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrower; and
(iii) an amount equal to the aggregate amount of all outstanding
Letters of Credit Usage shall be immediately due and payable to Issuing
Lender without notice to or demand upon Borrower, which are expressly
waived by Borrower, to be held in a Letter of Credit Cash Collateral
Account.
(c) Upon the occurrence of any Event of Default, Lenders and Administrative
Agent, or any of them, without notice to (except as expressly provided for in
any Loan Document) or demand upon Borrower, which are expressly waived by
Borrower (except as to notices expressly provided for in any Loan Document), may
proceed to (but only with the consent of Requisite Lenders) protect, exercise
and enforce their rights and remedies under the Loan Documents against Borrower
and such other rights and remedies as are provided by Law or equity.
(d) Except as permitted by Section 10.05, no Lender may exercise any rights
-------------
or remedies with respect to the Obligations without the consent of Requisite
Lenders in their sole and absolute discretion. The order and manner in which
Administrative Agent's and Lenders' rights and remedies are to be exercised
shall be determined by Requisite Lenders in their sole and absolute discretion.
Regardless of how a Lender may treat payments for the purpose of its own
accounting, for the purpose of computing the Obligations hereunder, payments
shall be applied first, to costs and expenses (including Attorney Costs)
incurred by Administrative Agent and each Lender, second, to the payment of
accrued and unpaid interest on the Loans to and including the date of such
application, third, to the payment of the unpaid principal of the Loans, and
fourth, to the payment of all other amounts (including fees) then owing to
Administrative Agent and Lenders under the Loan Documents, in each case paid pro
rata to each Lender in the same proportions that the aggregate Obligations owed
to each Lender under the Loan Documents bear to the aggregate Obligations owed
under the Loan Documents to all Lenders, without priority or preference among
Lenders. No application of payments will cure any Event of Default, or prevent
acceleration, or continued acceleration, of amounts payable under the Loan
Documents, or prevent the exercise, or continued exercise, of rights or remedies
of Administrative Agent and Lenders hereunder or thereunder or at Law or in
equity.
SECTION 9.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent.
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(a) Each Lender hereby irrevocably (subject to Section 9.09) appoints,
------------
designates and authorizes Administrative Agent to take such action on its behalf
under the provisions of this Agreement and each other Loan Document and to
exercise such powers and perform such duties as are expressly delegated to it by
the terms of this Agreement or any other Loan Document, together with such
powers as are reasonably incidental thereto. Notwithstanding any provision to
the contrary contained elsewhere in this Agreement or in any other Loan
Document, Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) Issuing Lender shall act on behalf of Lenders with respect to any
Letters of Credit issued by it and the documents associated therewith until such
time and except for so long as Administrative Agent may agree at the request of
Requisite Lenders to act for such Issuing Lender with respect thereto; provided,
--------
however, that Issuing Lender shall have all of the benefits and immunities (i)
-------
provided to Administrative Agent in this Section 9 with respect to any acts
---------
taken or omissions suffered by Issuing Lender in connection with Letters of
Credit issued by it or proposed to be issued by it and the application and
agreements for letters of credit pertaining to the Letters of Credit as fully as
if the term "Administrative Agent" as used in this Section 9 included Issuing
---------
Lender with respect to such acts or omissions, and (ii) as additionally provided
in this Agreement with respect to Issuing Lender.
9.02 Delegation of Duties. Administrative Agent may execute any of its
duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Administrative Agent shall not
be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
9.03 Liability of Administrative Agent. No Administrative Agent-Related
Person shall (i) be liable for any action taken or omitted to be taken by any of
them under or in connection with this Agreement or any other Loan Document or
the transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any Lender for any
recital, statement, representation or warranty made by Borrower or any
Subsidiary or Affiliate of Borrower, or any officer thereof, contained in this
Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure of
Borrower or any other party to any Loan Document to perform its obligations
hereunder or thereunder. No Administrative Agent-Related Person shall be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements
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contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of Borrower or any of Borrower's
Subsidiaries or Affiliates.
9.04 Reliance by Administrative Agent.
(a) Administrative Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, representation, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to Borrower), independent accountants and other experts selected by
Administrative Agent. Administrative Agent shall be fully justified in failing
or refusing to take any action under any other Loan Document unless it shall
first receive such advice or concurrence of Requisite Lenders as it deems
appropriate and, if it so requests, it shall first be indemnified to its
satisfaction by Lenders against any and all liability and expense which may be
incurred by it by reason of taking or continuing to take any such action.
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Loan Document in
accordance with a request or consent of Requisite Lenders or all Lenders, if
required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of Lenders. Where this Agreement
expressly permits or prohibits an action unless Requisite Lenders otherwise
determine, and in all other instances, Administrative Agent may, but shall not
be required to, initiate any solicitation for the consent or a vote of Lenders.
(b) For purposes of determining compliance with the conditions specified
in Section 4.01, each Lender that has executed this Agreement shall be deemed to
------------
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by Administrative Agent to such Lender for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to such Lender.
(c) Each Lender hereby authorizes Administrative Agent, upon payment of
the amount certified by Borrower as the full and final payment of all principal,
interest, fees and other charges outstanding under this Agreement, and following
termination of the Commitments, to execute with and in favor of Borrower a
termination letter that, inter alia, terminates Borrower's obligation to observe
----- ----
any or all of the covenants in Sections 3, 6 and 7 hereof.
---------- - -
9.05 Notice of Default. Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default, except
with respect to defaults in the payment of principal, interest and fees required
to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". Administrative
Agent will notify Lenders of its receipt of any such notice. Administrative
Agent shall take such action with respect to such Default or Event of Default as
may be directed by Requisite Lenders in accordance with Section 8; provided,
--------- --------
however, that unless and until Administrative Agent has received any such
-------
direction, Administrative Agent may (but shall not be obligated to) take such
action, or refrain
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from taking such action, with respect to such Default or Event of Default as it
shall deem advisable or in the best interest of Lenders.
9.06 Credit Decision; Disclosure of Information by Administrative Agent.
Each Lender acknowledges that no Administrative Agent-Related Person has made
any representation or warranty to it, and that no act by Administrative Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of Borrower and its Subsidiaries, shall be deemed to
constitute any representation or warranty by any Administrative Agent-Related
Person to any Lender as to any matter, including whether Administrative
Agent-Related Persons have disclosed material information in their possession.
Each Lender, including any Lender by assignment, represents to Administrative
Agent that it has, independently and without reliance upon any Administrative
Agent-Related Person and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrower and its Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to Borrower
hereunder. Each Lender also represents that it will, independently and without
reliance upon any Administrative Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of Borrower. Except for notices, reports and other documents
expressly required to be furnished to Lenders by Administrative Agent herein,
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
Borrower or any of its Subsidiaries which may come into the possession of any
Administrative Agent-Related Person.
9.07 Indemnification of Administrative Agent. Whether or not the
transactions contemplated hereby are consummated, Lenders shall indemnify upon
demand each Administrative Agent-Related Person (to the extent not reimbursed by
or on behalf of Borrower and without limiting the obligation of Borrower to do
so), pro rata, and hold harmless each Administrative Agent-Related Person from
and against any and all Indemnified Liabilities incurred by it; provided,
--------
however, that no Lender shall be liable for the payment to any Administrative
-------
Agent-Related Person of any portion of such Indemnified Liabilities resulting
from such Person's gross negligence or willful misconduct; provided, however,
-------- -------
that no action taken in accordance with the directions of Requisite Lenders
shall be deemed to constitute gross negligence or willful misconduct for
purposes of this Section. Without limitation of the foregoing, each Lender shall
reimburse Administrative Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) incurred by Administrative
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that Administrative Agent
is not reimbursed for such expenses by or on behalf of Borrower. The
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undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of Administrative Agent.
9.08 Administrative Agent in Individual Capacity. Bank of America and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with Borrower
and its Subsidiaries and Affiliates as though Bank of America were not
Administrative Agent or Issuing Lender hereunder and without notice to or
consent of Lenders. Lenders acknowledge that, pursuant to such activities, Bank
of America or its Affiliates may receive information regarding Borrower or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of Borrower or such Affiliate) and acknowledge that
Administrative Agent shall be under no obligation to provide such information to
them. With respect to its Loans, Bank of America shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not Administrative Agent or Issuing Lender.
9.09 Successor Administrative Agent. Administrative Agent may, and at the
request of Requisite Lenders shall, resign as Administrative Agent upon 30 days'
notice to Lenders. If Administrative Agent resigns under this Agreement,
Requisite Lenders shall appoint from among Lenders a successor administrative
agent for Lenders which successor administrative agent shall be approved by
Borrower. If no successor administrative agent is appointed prior to the
effective date of the resignation of Administrative Agent, Administrative Agent
may appoint, after consulting with Lenders and Borrower and upon approval of
Borrower (other than at any time as there exists an Event of Default) which will
not be unreasonably withheld, a successor administrative agent from among
Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Administrative Agent and the term
"Administrative Agent" shall mean such successor administrative agent and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 9 and Sections
--------- --------
10.03 and 10.11 shall inure to its benefit as to any actions taken or omitted to
----- -----
be taken by it while it was Administrative Agent under this Agreement. If no
successor administrative agent has accepted appointment as Administrative Agent
(whether due to absence of Borrower approval or otherwise) by the date which is
30 days following a retiring Administrative Agent's notice of resignation, the
retiring Administrative Agent's resignation shall nevertheless thereupon become
effective and Lenders shall perform all of the duties of Administrative Agent
hereunder until such time, if any, as Requisite Lenders appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, Bank of
America may not be removed as Administrative Agent at the request of Requisite
Lenders unless Bank of America shall also simultaneously be replaced as "Issuing
Lender" hereunder pursuant to documentation in form and substance reasonably
satisfactory to Bank of America.
9.10 Syndication Agent; Documentation Agent. None of Lenders (or
Affiliates of Lenders) identified on the facing page or signature pages of this
Agreement as a "Syndication Agent" or "Documentation Agent" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
in such capacity. Without limiting the foregoing, none of Lenders (or Affiliates
of Lenders) so identified shall have or be deemed to have any
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fiduciary relationship with any Lender. Each Lender acknowledges that it has not
relied, and will not rely, on any of Lenders (or Affiliates of Lenders) so
identified in deciding to enter into this Agreement or in taking or not taking
action hereunder.
SECTION 10.
MISCELLANEOUS
10.01 Amendments; Consents. No amendment, modification, supplement,
extension, termination or waiver of any provision of this Agreement or any other
Loan Document, no approval or consent thereunder, and no consent to any
departure by Borrower therefrom shall be effective unless in writing signed by
Requisite Lenders and acknowledged by Administrative Agent, and each such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given. Except as otherwise expressly provided herein, without
the approval in writing of Administrative Agent and all Lenders, no amendment,
modification, supplement, termination, waiver or consent may be effective:
(a) To reduce the amount of principal, principal prepayments or the rate
of interest payable on, any Loan, or the amount of any fee or other amount
payable to any Lender under the Loan Documents (unless such modification is
consented to by each Lender entitled to receive such fee ) or to waive an Event
of Default consisting of the failure of Borrower to pay when due principal,
interest or any commitment fee;
(b) To postpone any date fixed for any payment of principal of, prepayment
of principal of, or any installment of interest on, any Loan or any installment
of any commitment fee, to extend the term of, or increase the amount of, any
Lender's Commitment (it being understood that a waiver of an Event of Default
shall not constitute an extension or increase in the Commitment of any Lender)
or modify the Pro Rata Share of any Lender;
(c) To amend the definition of "Requisite Lenders" or the provisions of
Section 4, Section 9, this Section 10.01 or Section 10.06; or
--------- --------- ------------- -------------
(d) To amend any provision of this Agreement that expressly requires the
consent or approval of all Lenders; provided, however, that (i) no amendment,
-------- -------
waiver or consent shall, unless in writing and signed by Issuing Lender in
addition to Requisite Lenders or all Lenders, as the case may be, affect the
rights or duties of Issuing Lender, (ii) no amendment, waiver or consent shall,
unless in writing and signed by Administrative Agent in addition to Requisite
Lenders or all Lenders, as the case may be, affect the rights or duties of
Administrative Agent, and (iii) the fee letters may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto. Any
amendment, modification, supplement, termination, waiver or consent pursuant to
this Section shall apply equally to, and shall be binding upon, all Lenders and
Administrative Agent.
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10.02 Transmission and Effectiveness of Communications and Signatures.
(a) Modes of Delivery. Except as otherwise provided in any Loan Document,
notices, requests, demands, directions, agreements and documents delivered in
connection with the Loan Documents (collectively, "communications") shall be
--------------
transmitted by Requisite Notice to the number and address set forth on Schedule
--------
10.02, may be delivered by the following modes of delivery, and shall be
-----
effective as follows:
Mode of Delivery Effective on earlier of actual receipt and:
----------------------------------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible form complete
Mail Fourth Business Day after deposit in U.S.
mail first class postage pre-paid
Personal delivery When received
Telephone When conversation completed
provided, however, that communications delivered to Administrative Agent
-------- -------
pursuant to Section 2 must be in writing and shall not be effective until
---------
actually received by Administrative Agent.
(b) Reliance by Administrative Agent and Lenders. Administrative Agent and
Lenders shall be entitled to rely and act on any communications purportedly
given by or on behalf of Borrower even if (i) such communications (A) were not
made in a manner specified herein, (B) were incomplete or (C) were not preceded
or followed by any other notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any subsequent related communications
provided for herein. Borrower shall indemnify Administrative Agent and Lenders
from any loss, cost, expense or liability as a result of relying on any
communications permitted herein.
(c) Effectiveness of Facsimile Documents and Signatures. Documents and
agreements delivered from time to time in connection with the Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same force
and effect as hardcopies with manual signatures and shall be binding on all
Borrower Parties and Administrative Agent and Lenders. Administrative Agent may
also request that any such documents and signature be confirmed by a
manually-signed hardcopy thereof; provided, however, that the failure to request
-------- -------
or deliver any such manually-signed hardcopy shall not affect the effectiveness
of any facsimile documents or signatures.
10.03 Attorney Costs, Expenses and Taxes. Borrower agrees (a) to pay or
reimburse Administrative Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation and execution of the
Loan Documents, and the development, preparation, negotiation and execution of
any amendment, waiver, consent, supplement or modification to, any Loan
Documents, and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions
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contemplated hereby and thereby, including all reasonable Attorney Costs, and
(b) to pay or reimburse Administrative Agent and each Lender for all costs and
expenses incurred in connection with any refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and enforcement or
attempted enforcement, or preservation of any rights under any Loan Documents,
and any other documents prepared in connection herewith or therewith, or in
connection with any refinancing, or restructuring of any such documents in the
nature of a "workout" or of any insolvency or bankruptcy proceeding, including
Attorney Costs. The foregoing costs and expenses shall include all reasonable
search, filing, recording, title insurance and appraisal charges and fees and
taxes related thereto, and other out-of-pocket expenses incurred by
Administrative Agent and the cost of independent public accountants and other
outside experts retained by Administrative Agent or any Lender. Such costs and
expenses shall also include administrative costs of Administrative Agent
reasonably attributable to the administration of the Loan Documents. Any amount
payable by Borrower under this Section shall bear interest from the second
Business Day following the date of demand for payment at the Default Rate,
unless waived by Administrative Agent. The agreements in this Section shall
survive repayment of all Obligations.
10.04 Binding Effect; Assignment.
(a) This Agreement and the other Loan Documents to which Borrower is a
party will be binding upon and inure to the benefit of Borrower, Administrative
Agent, Lenders and their respective successors and assigns, except that,
Borrower may not assign its rights hereunder or thereunder or any interest
herein or therein without the prior written consent of all Lenders and any such
attempted assignment shall be void. Any Lender may at any time pledge its Note
or any other instrument evidencing its rights as a Lender under this Agreement
to a Federal Reserve Bank, but no such pledge shall release such Lender from its
obligations hereunder or grant to such Federal Reserve Bank the rights of a
Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender may assign
to one or more Eligible Assignees all or any portion of its Commitment and/or
Extensions of Credit; provided that (i) such assignment, if not to a Lender or
--------
an Affiliate of the assigning Lender, shall be consented to by Borrower at all
times other than during the existence of a Default or Event of Default and by
Administrative Agent and Issuing Lender (which approval of Borrower shall not be
unreasonably withheld), (ii) a copy of a duly signed and completed Assignment
and Acceptance shall be delivered to Administrative Agent, (iii) except in the
case of an assignment (A) to an Affiliate of the assigning Lender or to another
Lender or (B) of the entire remaining Commitment of the assigning Lender, the
portion of the Commitment assigned shall not be less than the Minimum Amount
therefor, and (iv) the effective date of any such assignment shall be as
specified in the Assignment and Acceptance, but not earlier than the date which
is five Business Days after the date Administrative Agent has received the
Assignment and Acceptance. Upon any required consent by Administrative Agent,
Issuing Lender and Borrower to such assignment and payment of the requisite fee
described below, the assignee named therein shall be a Lender for all purposes
of this Agreement, with the Pro Rata Share therein set forth and, to the extent
of such Pro Rata Share, the assigning Lender shall be released from its further
obligations under this Agreement. Borrower agrees that it shall execute and
deliver upon request (against delivery by the assigning Lender to Borrower of
any Note) to such assignee Lender, one or more Notes evidencing such assignee
Lender's Loans, and to the assigning Lender if
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requested, one or more Notes evidencing Loans under any Commitment retained by
the assigning Lender. Administrative Agent's consent to any assignment shall not
be deemed to constitute any representation or warranty by any Administrative
Agent-Related Person as to any matter. For purposes hereof, each mutual fund
that is an Affiliate of a Lender shall be deemed to be a single Eligible
Assignee, whether or not such fund is managed by the same fund manager as other
mutual funds that are Affiliates of the same Lender.
(c) After receipt of a completed Assignment and Acceptance, and receipt of
an assignment fee of $4,000 from such Eligible Assignee (including in the case
of assignments to Affiliates of assigning Lenders), Administrative Agent shall,
promptly following the effective date thereof, provide to Borrower and Lenders a
revised Schedule 10.02 giving effect thereto.
--------------
(d) Each Lender may from time to time, without the consent of any other
Person, grant participations to one or more other Person (including another
Lender) of all or any portion of its Pro Rata Share of its Commitment or
Extensions of Credit; provided, however, that (i) such Lender's obligations
-------- -------
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participating banks or other financial institutions shall
not be a Lender hereunder for any purpose except, if the participation agreement
so provides, for the purposes of Section 3 (but only to the extent that the cost
---------
of such benefits to Borrower does not exceed the cost which Borrower would have
incurred in respect of such Lender absent the participation) and subject to
Sections 10.05 and 10.06, (iv) Borrower, Administrative Agent and the other
-------------- -----
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement, (v)
the participation agreement shall not restrict an increase in the combined
Commitments or in granting Lender's Pro Rata Share, so long as the amount of the
participation interest is not affected thereby, and (vi) the consent of the
holder of such participation interest shall not be required for amendments or
waivers of provisions of the Loan Documents; provided, however, that the
-------- -------
assigning Lender may, in any agreement with a participant, give such participant
the right to consent to any matter which (A) extends the Maturity Date as to
such participant or any other date upon which any payment of money is due to
such participant, (B) reduces the rate of interest owing to such participant,
any fee or any other monetary amount owing to such participant, or (C) reduces
the amount of any installment of principal owing to such participant. Any Lender
that sells a participation to any Person that is a "foreign corporation,
partnership or trust" within the meaning of the Code shall include in its
participation agreement with such Person a covenant by such Person that such
Person will comply with the provisions of Section 10.21 as if such Person were a
-------------
Lender and provide that Administrative Agent and Borrower shall be third party
beneficiaries of such covenant.
10.05 Set-off. In addition to any rights and remedies of Administrative
Agent and Lenders or any assignee or participant of any Lender or any Affiliate
thereof (each, a "Proceeding Party") provided by law, upon the occurrence and
----------------
during the continuance of any Event of Default, each Proceeding Party is
authorized at any time and from time to time, without prior notice to Borrower,
any such notice being waived by Borrower to the fullest extent permitted by law,
to proceed directly, by right of set-off, banker's lien, or otherwise, against
any assets of Borrower Parties which may be in the hands of such Proceeding
Party (including all general or special, time or demand, provisional or other
deposits and other indebtedness owing by such Proceeding Party to or for the
credit or the account of Borrower) and apply such assets
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against the Obligations, irrespective of whether such Proceeding Party shall
have made any demand therefor and although such Obligations may be unmatured.
Each Lender agrees promptly to notify Borrower and Administrative Agent after
any such set-off and application made by such Lender; provided, however, that
-------- -------
the failure to give such notice shall not affect the validity of such set-off
and application.
10.06 Sharing of Payments. Each Lender severally agrees that if it,
through the exercise of any right of setoff, banker's lien or counterclaim
against Borrower or otherwise, receives payment on account of the Outstanding
Obligations held by it that is ratably more than any other Lender receives in
payment on account of the Outstanding Obligations held by such other Lender,
then, subject to applicable Laws: (a) the Lender exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from the other
Lender a participation in the Outstanding Obligations held by the other Lender
and shall pay to the other Lender a purchase price in an amount so that the
share of the Outstanding Obligations held by each Lender after the exercise of
the right of setoff, banker's lien or counterclaim or receipt of payment shall
be in the same proportion that existed prior to the exercise of the right of
setoff, banker's lien or counterclaim or receipt of payment; and (b) such other
adjustments and purchases of participations shall be made from time to time as
shall be equitable to ensure that all Lenders share any payment obtained in
respect of the Outstanding Obligations ratably in accordance with each Lender's
share of the Outstanding Obligations immediately prior to, and without taking
into account, the payment; provided that, if all or any portion of a
--------
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Borrower or any Person claiming through or succeeding
to the rights of Borrower, the purchase of a participation shall be rescinded
and the purchase price thereof shall be restored to the extent of the recovery,
but without interest. Each Lender that purchases a participation in the
Outstanding Obligations pursuant to this Section shall from and after the
purchase have the right to give all notices, requests, demands, directions and
other communications under this Agreement with respect to the portion of the
Outstanding Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Outstanding Obligations purchased.
Borrower expressly consents to the foregoing arrangements and agrees that any
Lender holding a participation in an Obligation so purchased may exercise any
and all rights of setoff, banker's lien or counterclaim with respect to the
participation as fully as if Lender were the original owner of the Obligation
purchased.
10.07 No Waiver; Cumulative Remedies.
(a) No failure by any Lender or Administrative Agent to exercise, and no
delay by any Lender or Administrative Agent in exercising, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under any
Loan Document preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. Without limiting the generality of
the foregoing, the terms and conditions of Section 4 may be waived in whole or
---------
in part, with or without terms or conditions, in respect of any Extension of
Credit without prejudicing Administrative Agent's or Lenders' rights to assert
them in whole or in part in respect of any other Extension of Credit.
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(b) The rights, remedies, powers and privileges herein or therein
provided are cumulative and not exclusive of any rights, remedies, powers and
privileges provided by Law. Any decision by Administrative Agent or any Lender
not to require payment of any interest (including Default Interest), fee, cost
or other amount payable under any Loan Document or to calculate any amount
payable by a particular method on any occasion shall in no way limit or be
deemed a waiver of Administrative Agent's or such Lender's right to require full
payment thereof, or to calculate an amount payable by another method that is not
inconsistent with this Agreement, on any other or subsequent occasion.
(c) The terms and conditions of Section 9 are for the sole benefit of
---------
Administrative Agent and Lenders.
10.08 Usury. Notwithstanding anything to the contrary contained in any
Loan Document, the interest and fees paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the "Maximum Rate"). If Administrative Agent or any Lender
------------
shall receive interest or a fee in an amount that exceeds the Maximum Rate, the
excessive interest or fee shall be applied to the principal of the Outstanding
Obligations or, if it exceeds the unpaid principal, refunded to Borrower. In
determining whether the interest or a fee contracted for, charged, or received
by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
to the extent permitted by applicable Law, (a) characterize any payment that is
not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
10.09 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.10 Integration. This Agreement, together with the other Loan Documents
and any letter agreements referred to herein, comprises the complete and
integrated agreement of the parties on the subject matter hereof and supersedes
all prior agreements, written or oral, on the subject matter hereof. In the
event of any conflict between the provisions of this Agreement and those of any
other Loan Document, the provisions of this Agreement shall control and govern;
provided that the inclusion of supplemental rights or remedies in favor of
--------
Administrative Agent or Lenders in any other Loan Document shall not be deemed a
conflict with this Agreement. Each Loan Document was drafted with the joint
participation of the respective parties thereto and shall be construed neither
against nor in favor of any party, but rather in accordance with the fair
meaning thereof.
10.11 Nature of Lenders' Obligations. Nothing contained in this Agreement
or any other Loan Document and no action taken by Administrative Agent or
Lenders or any of them pursuant hereto or thereto may, or may be deemed to, make
Lenders a partnership, an association, a joint venture or other entity, either
among themselves or with Borrower or any Affiliate of Borrower. Each Lender's
obligation to make any Extension of Credit pursuant hereto is several and not
joint or joint and several, and in the case of the initial Extension of Credit
only is conditioned upon the performance by all other Lenders of their
obligations to
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make the initial Extension of Credit. A default by any Lender will not increase
the Pro Rata Share attributable to any other Lender.
10.12 Survival of Representations and Warranties. All representations and
warranties made hereunder and in any Loan Document, certificate or statement
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery thereof but shall terminate the later
of (a) when the Commitments are terminated and (b) when no Obligations remain
outstanding under any Loan Document. Such representations and warranties have
been or will be relied upon by Administrative Agent and each Lender,
notwithstanding any investigation made by Administrative Agent or any Lender or
on their behalf.
10.13 Indemnity by Borrower. Borrower agrees to indemnify, save and hold
harmless each Administrative Agent-Related Person and each Lender and their
respective Affiliates, directors, officers, agents, attorneys and employees
(collectively, the "Indemnitees") from and against: (a) any and all claims,
-----------
demands, actions or causes of action that are asserted against any Indemnitee by
any Person (other than Administrative Agent or any Lender) relating directly or
indirectly to a claim, demand, action or cause of action that such Person
asserts or may assert against Borrower, any of its Affiliates or any its
officers or directors; (b) any and all claims, demands, actions or causes of
action arising out of or relating to, the Loan Documents, any predecessor loan
documents, the Commitments, the use or contemplated use of the proceeds of any
Loan, or the relationship of Borrower, Administrative Agent and Lenders under
this Agreement; (c) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim, demand, action or
cause of action described in subsection (a) or (b) above; and (d) any and all
liabilities, losses, costs or expenses (including Attorney Costs) that any
Indemnitee suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding, or as a result of the
preparation of any defense in connection with any foregoing claim, demand,
action, cause of action or proceeding, in all cases, whether or not an
Indemnitee is a party to such claim, demand, action, cause of action or
proceeding, including those liabilities caused by an Indemnitee's own negligence
(all the foregoing, collectively, the "Indemnified Liabilities"); provided that
----------------------- --------
no Indemnitee shall be entitled to indemnification for any loss caused by its
own gross negligence or willful misconduct or for any loss asserted against it
by another Indemnitee.
10.14 Nonliability of Lenders. Borrower acknowledges and agrees that:
(a) Any inspections of any property of Borrower made by or through
Administrative Agent or Lenders are for purposes of administration of the Loan
Documents only, and Borrower is not entitled to rely upon the same (whether or
not such inspections are at the expense of Borrower);
(b) By accepting or approving anything required to be observed, performed,
fulfilled or given to Administrative Agent or Lenders pursuant to the Loan
Documents, neither Administrative Agent nor Lenders shall be deemed to have
warranted or represented the sufficiency, legality, effectiveness or legal
effect of the same, or of any term, provision or condition thereof, and such
acceptance or approval thereof shall not constitute a warranty or representation
to anyone with respect thereto by Administrative Agent or Lenders;
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(c) The relationship between Borrower and Administrative Agent and Lenders
is, and shall at all times remain, solely that of borrower and lenders; neither
Administrative Agent nor any Lender shall under any circumstance be deemed to be
in a relationship of confidence or trust or a fiduciary relationship with
Borrower or its Affiliates, or to owe any fiduciary duty to Borrower or its
Affiliates; neither Administrative Agent nor any Lender undertakes or assumes
any responsibility or duty to Borrower or its Affiliates to select, review,
inspect, supervise, pass judgment upon or inform Borrower or its Affiliates of
any matter in connection with their property or the operations of Borrower or
its Affiliates; Borrower and its Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review, inspection, supervision,
exercise of judgment or supply of information undertaken or assumed by
Administrative Agent or any Lender in connection with such matters is solely for
the protection of Administrative Agent and Lenders and neither Borrower nor any
other Person is entitled to rely thereon; and
(d) Neither Administrative Agent nor any Lender shall be responsible or
liable to any Person for any loss, damage, liability or claim of any kind
relating to injury or death to Persons or damage to property caused by the
actions, inaction or negligence of Borrower and/or its Affiliates and Borrower
hereby indemnifies and holds Administrative Agent and Lenders harmless from any
such loss, damage, liability or claim.
10.15 No Third Parties Benefited. This Agreement is made for the purpose
of defining and setting forth certain obligations, rights and duties of
Borrower, Administrative Agent and Lenders in connection with the Extensions of
Credit, and is made for the sole benefit of Borrower, Administrative Agent and
Lenders, and Administrative Agent's and Lenders' successors and assigns. Except
as provided in Sections 10.04 and 10.13, no other Person shall have any rights
-------------- -----
of any nature hereunder or by reason hereof.
10.16 Severability. Any provision of the Loan Documents that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.17 Confidentiality. Administrative Agent and each Lender shall use any
confidential non-public information concerning Borrower and its Subsidiaries
that is furnished to Administrative Agent or such Lender by or on behalf of
Borrower and its Subsidiaries in connection with the Loan Documents
(collectively, "Confidential Information") solely for the purpose of evaluating
------------------------
and providing products and services to them and administering and enforcing the
Loan Documents, and it will hold the Confidential Information in confidence.
Notwithstanding the foregoing, Administrative Agent and each Lender may disclose
Confidential Information (a) to their Affiliates or any of their or their
Affiliates' directors, officers, employees, advisors, or representatives
(collectively, the "Representatives") whom it determines need to know such
---------------
information for the purposes set forth in this Section; (b) to any bank or
financial institution or other entity to which such Lender has assigned or
desires to assign an interest or participation in the Loan Documents or the
Obligations, provided that any such foregoing recipient of such Confidential
--------
Information agrees to keep such Confidential Information confidential as
specified herein; (c) to any governmental agency or regulatory body
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having or claiming to have authority to regulate or oversee any aspect of
Administrative Agent's or such Lender's business or that of its Representatives
in connection with the exercise of such authority or claimed authority; (d) to
the extent necessary or appropriate to effect or preserve Administrative Agent's
or such Lender's or any of their Affiliates' security (if any) for any
Obligation or to enforce any right or remedy or in connection with any claims
asserted by or against Administrative Agent or such Lender or any of their
Representatives; and (e) pursuant to any subpoena or any similar legal process.
For purposes hereof, the term "Confidential Information" shall not include
information that (x) is in Administrative Agent's or a Lender's possession prior
to its being provided by or on behalf of the Borrower Parties, provided that
--------
such information is not known by Administrative Agent or such Lender to be
subject to another confidentiality agreement with, or other legal or contractual
obligation of confidentiality to, Borrower, (y) is or becomes publicly available
(other than through a breach hereof by Administrative Agent or such Lender), or
(z) becomes available to Administrative Agent or such Lender on a
nonconfidential basis, provided that the source of such information was not
--------
known by Administrative Agent or such Lender to be bound by a confidentiality
agreement or other legal or contractual obligation of confidentiality with
respect to such information.
10.18 Further Assurances. Borrower and its Subsidiaries shall, at their
expense and without expense to Lenders or Administrative Agent, do, execute and
deliver such further acts and documents as any Lender or Administrative Agent
from time to time reasonably requires for the assuring and confirming unto
Lenders or Administrative Agent of the rights hereby created or intended now or
hereafter so to be, or for carrying out the intention or facilitating the
performance of the terms of any Loan Document.
10.19 Headings. Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of
this Agreement or the other Loan Documents for any other purpose.
10.20 Time of the Essence. Time is of the essence of the Loan Documents.
10.21 Foreign Lenders. Each Lender that is a "foreign corporation,
partnership or trust" within the meaning of the Code shall deliver to
Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or after accepting an assignment of an interest herein), two
duly signed completed copies of either Form W-8BEN or any successor thereto
(relating to such Person and entitling it to a complete exemption from
withholding on all payments to be made to such Person by Borrower pursuant to
this Agreement) or Form W-8ECI or any successor thereto (relating to all
payments to be made to such Person by Borrower pursuant to this Agreement) of
the United States Internal Revenue Service or such other evidence satisfactory
to Borrower and Administrative Agent that no withholding under the federal
income tax laws is required with respect to such Person. Thereafter and from
time to time, each such Person shall (a) promptly submit to Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to
Borrower and Administrative Agent of any available exemption from, United States
withholding taxes in respect of all payments to be made to such Person by
Borrower pursuant to this Agreement, and (b) take such steps as shall not be
materially disadvantageous to it, in the reasonable judgment of
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such Lender, and as may be reasonably necessary (including the re-designation of
its Lending Office) to avoid any requirement of applicable Laws that Borrower
make any deduction or withholding for taxes from amounts payable to such Person.
If such Persons fails to deliver the above forms or other documentation, then
Administrative Agent may withhold from any interest payment to such Person an
amount equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction. If any Governmental Authority asserts that
Administrative Agent did not properly withhold any tax or other amount from
payments made in respect of such Person, such Person shall indemnify
Administrative Agent therefor, including all penalties and interest and costs
and expenses (including Attorney Costs) of Administrative Agent. The obligation
of Lenders under this Section shall survive the payment of all Obligations and
the resignation or replacement of Administrative Agent.
10.22 Removal and Replacement of Lenders.
(a) Under any circumstances set forth in this Agreement providing that
Borrower shall have the right to remove and replace a Lender as a party to this
Agreement, Borrower may, upon notice to such Lender and Administrative Agent,
remove such Lender by (i) non ratably terminating such Lender's Commitment, and
(ii) if being replaced, causing such Lender to assign its Commitment to one or
more other Lenders or Eligible Assignees acceptable to Borrower, Administrative
Agent and Issuing Lender; provided, however, that during the existence of any
-------- -------
Event of Default, Borrower may not remove or replace a Lender pursuant to this
Section 10.22. Any removed or replaced Lender shall be entitled to (x) payment
-------------
in full of all principal, interest, fees and other amounts owing to such Lender
or such Lender's affiliated Indemnitees under any Loan Document through the date
of termination or assignment (including any amounts payable pursuant to Section
-------
3.05), (y) appropriate assurances and indemnities (which may include letters of
----
credit) as such Lender may reasonably require with respect to its participation
interest in any Letters of Credit and (z) a release of such Lender from its
obligations under the Loan Documents. Any Lender being replaced shall execute
and deliver an Assignment and Acceptance covering such Lender's Commitment, and
shall otherwise comply with Section 10.04. Administrative Agent shall distribute
-------------
an amended Schedule 2.01, which shall thereafter be incorporated into this
-------------
Agreement, to reflect adjustments to Lenders and their Commitments.
(b) In order to make all Lender's interests in any outstanding Extensions
of Credit ratable in accordance with any revised Pro Rata Shares after giving
effect to the removal or replacement of a Lender, Borrower shall pay or prepay,
if necessary, on the effective date thereof, all outstanding Extensions of
Credit of all Lenders, together with any amounts due under Section 3.05.
------------
Borrower may then request Extensions of Credit from Lenders in accordance with
their revised Pro Rata Shares.
10.23 Governing Law.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF CALIFORNIA APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT ADMINISTRATIVE AGENT AND
--------
EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
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(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR
OF THE UNITED STATES FOR THE CENTRAL DISTRICT OF SUCH STATE, AND BY EXECUTION
AND DELIVERY OF THIS AGREEMENT, BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. BORROWER, ADMINISTRATIVE AGENT AND EACH LENDER
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED HERETO. BORROWER, ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF SUCH
STATE.
10.24 Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT
HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION
OR CAUSE OF ACTION ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH
OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO OR ANY OF THEM
WITH RESPECT TO ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH
CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT
OR TORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR
A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.25 Entire Agreement. This Agreement and the other Loan Documents
represent the final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous, or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the parties.
10.26 Effect of Amendment and Restatement. (a) This Agreement is intended
to amend the April 2000 Credit Agreement, without novation, and, solely for
convenience of reference, to restate it. Borrower hereby acknowledges, certifies
and agrees that if, pursuant to the April 2000 Credit Agreement the Lenders have
made advances to Borrower that are outstanding as of the Restatement Date, or
Issuing Lender has issued letters of credit that are outstanding as of the
Restatement Date, (i) Borrower's obligation to repay such advances to Lenders
and to reimburse Issuing Lender in respect of drawings under such letters of
credit is not subject to any defense, counterclaim, set-off, right of
recoupment, abatement or other claim, and (ii) such loans and advances shall
continue and constitute Loans and such letters of credit shall continue and
constitute Letters of Credit of Borrower under and subject to the terms and
provisions of this Agreement.
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(b) The Requisite Lenders hereby waive any Default or Event of Default
arising under the April 2000 Credit Agreement as a result of the Maxtor Merger
solely to the extent that any such Default or Event of Default would not have
arisen under the terms of this Agreement had the terms of this Agreement been in
effect at all times from and after the execution and delivery by the parties
thereto of the Maxtor Merger Agreement.
[Remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
QUANTUM CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President Finance
and Chief Financial Officer
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BANK OF AMERICA, N.A.,
as Administrative Agent, Issuing
Lender, and Lender
By:____________________________
Name:__________________________
Title:_________________________
-▇▇-
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, as Lender
By:__________________________
Name:________________________
Title:_______________________
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FLEET NATIONAL BANK, as Lender
By:__________________________
Name:________________________
Title:_______________________
-▇▇-
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇,
LIMITED, as Lender
By:_________________________
Name:_______________________
Title:______________________
-83-
BNP PARIBAS, as Lender
By:__________________________
Name:________________________
Title:_______________________
-84-
CITICORP USA, INC., as Lender
By:____________________________
Name:__________________________
Title:_________________________
-▇▇-
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ASSOCIATION,
as Lender
By:__________________________
Name:________________________
Title:_______________________
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THE SUMITOMO BANK, LIMITED,
as Lender
By:___________________________
Name:_________________________
Title:________________________
-▇▇-
▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, N.A.,
as Lender
By:_____________________________
Name:___________________________
Title:__________________________
-88-
THE FUJI BANK, LIMITED, as Lender
By:_____________________________
Name:___________________________
Title:__________________________
-89-
EXHIBIT A
FORM OF REQUEST FOR EXTENSION OF CREDIT
Date: ___________, ____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (3-Year) dated as of
April 19, 2000 between Quantum Corporation, a Delaware corporation ("Borrower"),
Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent and Issuing Lender (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
---------
The undersigned hereby requests (select one):
[_] A Borrowing of Loans [_] A Conversion or Continuation of Loans
1. On ______________________________________
2. In the amount of $_______________________
3. Comprised of ____________________________
[type of Loan requested]
4. If applicable: with an Interest Period of __________ months.
The foregoing request complies with the requirements of Section 2.01 of
------------
the Agreement. Other than in connection with a Conversion or Continuation of
Loans, the undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the above date, before and after giving
effect to the Extension of Credit:
(a) The representations and warranties made by Borrower in the Agreement,
or which are contained in any certificate, document or financial or other
statement furnished at any time under or in connection therewith, are and
will be correct on and as of the date of this Extension of Credit, except
to the extent that such representations and warranties specifically refer
to any earlier date; and
A-1
(b) no Default or Event of Default has occurred and is continuing on
the date hereof or after giving effect to this Extension of Credit.
QUANTUM CORPORATION
By: __________________________
Name: ________________________
Title: _______________________
A-2
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _________________,___
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement (3-Year) dated as of
April 19, 2000 between Quantum Corporation, a Delaware corporation ("Borrower"),
Lenders from time to time party thereto, Bank of America, N.A., as
Administrative Agent and Issuing Lender (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
The undersigned Responsible Officer hereby certifies as of the date
hereof that he is the ____________________________________ of Borrower, and
that, as such, he is authorized to execute and deliver this Certificate to
Administrative Agent on the behalf of Borrower, and that:
[Use following for fiscal year-end financial statements]
1. Attached hereto as Schedule 1 are the year-end audited financial
statements required by Section 6.01(a) of the Agreement for the fiscal year of
--------------
Borrower ended as of the above date, together with the report and opinion of an
independent certified public accountant required by such section.
[Use following for fiscal quarter-end financial statements]
1. Attached hereto as Schedule 1 are the unaudited financial statements
----------
required by Section 6.01(b) of the Agreement for the fiscal quarter of Borrower
---------------
ended as of the above date. Such financial statements fairly present the
financial condition, results of operations and changes in financial position of
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such periods, subject only to normal year-end audit adjustments and the absence
of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Agreement and has made, or has caused to be made under his supervision, a
detailed review of the transactions and conditions (financial or otherwise) of
Borrower during the accounting period covered by the attached financial
statements.
3. A review of the activities of the Borrower Parties during such fiscal
period has been made under my supervision with a view to determining whether
during such fiscal period Borrower performed and observed all its respective
Obligations under the Loan Documents, and
B-1
[select one:]
[to the best knowledge of the undersigned during such fiscal period,
Borrower performed and observed each covenant and condition of the Loan
Documents applicable to it.]
--or--
[the following covenants or conditions have not been performed or observed
and the following is a list of all such Defaults and its nature and status:]
1. The following financial covenant analyses and information set forth on
Schedule 2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
________________, ___________.
QUANTUM CORPORATION
By: ___________________________
Name: _________________________
Title: ________________________
B-2
For the Quarter Year ended ("Statement Date")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
[NOTE: With respect to any period (or partial period) prior to the Maxtor
Merger Effective Time, certain of the ratios and amounts described herein
shall be determined solely in respect of the DSS Business on a stand-alone
basis, based upon the then-current DSS Combined Financial Statements]
I. Section 6.13(a)
Please indicate whether Borrower remains in compliance with
the covenants set forth in Section 7.12 after taking into
account the aggregate amount of any transfers of assets or
assumptions of liabilities (assuming that any contingent or YES / NO
off-balance sheet liabilities are incurred and accounted for
in an amount equal to that which could reasonably be expected
to be paid) pursuant to Section 6.13(a).
II. Section 6.13(b)(iv)
Please indicate whether Borrower remains in compliance with
the covenants set forth in Section 7.12 after taking into
account the aggregate amount of any transfers of assets or
assumptions of liabilities (assuming that any contingent or YES / NO
off-balance sheet liabilities are incurred and accounted for
in an amount equal to that which could reasonably be expected
to be paid) pursuant to Section 6.13(b)(iv).
III. Section 7.05(i)
Note: Please indicate whether Borrower or any of its Subsidiaries
----
made any Investment in Snap Appliances pursuant to Section 7.05 YES / NO
(i) in the period to which this Compliance Certificate relates,
and if so complete this section.
Aggregate Investments in Snap Appliances from and after
Restatement Date but prior to consummation of the Snap
Spin Off. $__________
B-3
Form of Compliance Certificate
Maximum permitted: $100,000,000
IV. Section 7.12(a) - Minimum Consolidated Tangible Net
Worth.
A. Actual Consolidated Tangible Net Worth at
Statement Date:
1. Shareholders' Equity: $______________
2. Intangible Assets: $______________
3. Consolidated Tangible Net Worth
(Line IV.A.1 less Line IV.A.2): $______________
B. 75% of Consolidated Tangible Net Worth as
of March 31, 2000 $______________
C. Amount equal to 75% of the sum of positive
Consolidated Net Income (ignoring any quarterly
losses and any charge for In-Process Research
and Development described in Line IV.F below)
for each fiscal quarter after the quarter ended
March 31, 2000, through and including the quarter
ending on the Statement Date: $______________
D. Amount equal to 75% of the Net Proceeds of all
Equity Securities issued by Borrower (excluding
any issuance where the Net Proceeds to Borrower
are less than $10,000,000) during the period
commencing on March 31, 2000 and ending on the
Statement Date: $______________
E. Amount equal to 75% of the increase in
shareholders' equity resulting from any conversion
of Convertible Subordinated Debentures into Equity
Securities during the period commencing on March 31,
2000 and ending on the Statement Date: $______________
F. Lesser of (i) the aggregate amount paid by Borrower
to repurchase Equity Securities during the period
commencing on March 31, 2000 and ending on the
Statement Date, and (ii) $200,000,000: $==============
G. Lesser of (i) the aggregate amount of charges taken
by Borrower for In Process Research & Development
associated with Acquisitions during the period
commencing on March 31, 2000 and ending on the $==============
B-4
Form of Compliance Certificate
Statement Date, and (ii) $100,000,000; provided
--------
that any such amounts were paid during the quarter
in which any such Acquisition was completed:
H. For any fiscal quarter ending after the Snap
Spin-Off is consummated, the lesser of (i) net
book value of Snap Appliances as of the Restatement
Date and (ii) $150,000,000. $______________
I. Sum of: Lines IV.B + IV.C + IV.D + IV.E less IV.F
less IV.G less IV.H: $______________
J. Greater of Line IV.B and IV.I: $______________
K. Excess (deficiency) for covenant compliance (Line
IV.A.3 less IV.J): $______________
V. Section 7.12(b) - Minimum Quick Ratio.
A. Quick Assets:
1. Amount of cash and cash equivalents of
Borrower and its Subsidiaries (excluding
restricted cash) as of the Statement Date: $______________
2. Amount of all accounts receivable of
Borrower and its Subsidiaries, less all
reserves therefor, as of the Statement
Date: $______________
3. Amount of Quick Assets as of Statement
Date (Lines V.A.1 + 2): $______________
B. Current Liabilities:
1. Amount of current liabilities of Borrower
and its Subsidiaries as of the Statement
Date: $______________
2. Amount of Outstanding Obligations (to the
extent not included in Line V.B.1): $______________
3. Amount of total current liabilities of
Borrower and its Subsidiaries as of the
Statement Date (Line V.B.1 + 2): $______________
B-5
Form of Compliance Certificate
C. Quick Ratio (Line V.A.3 / Line V.B.3): ___________to 1
Minimum required: 1.10 to 1
VI. Section 7.12(c) - Maximum Leverage Ratio.
A. Consolidated EBITDA measured on a rolling four
quarter basis for the four fiscal quarters
ended as of the Statement Date ("Subject
Period"):
1. Consolidated Net income for Subject Period: $______________
2. Consolidated Interest Charges for Subject
Period: $______________
3. Provision for income taxes for Subject
Period: $______________
4. Depreciation expenses for Subject Period: $______________
5. Amortization expenses for intangibles for
Subject Period: $______________
6. Amount written off in connection with
In-Process Research & Development related
to the Meridian Acquisition (in the second
fiscal quarter of year 2000 only): $______________
7. Amount of charge taken in connection with
DSS (in the fourth fiscal quarter of year
2000 only): $______________
8. Lesser of (i) the aggregate amount of
charges taken by Borrower for In Process
Research & Development associated with
Acquisitions during the period commencing
on March 31, 2000 and ending on the
Statement Date, and (ii) $100,000,000;
provided that any such amounts were paid
--------
during the quarter in which any such
Acquisition was completed: $______________
9. Consolidated EBITDA (Lines VI.A.1 + 2 +
3 + 4 + 5 + 6 + 7 + 8): $______________
B. Consolidated Funded Indebtedness at Statement
Date: $______________
C. Leverage Ratio (Line VI.B / Line VI.A.9): ___________to 1
Maximum permitted: 2.00 to 1
B-6
Form of Compliance Certificate
VII. Section 7.12(d) - Minimum Profitability.
A. 5% of Consolidated Tangible Net Worth as of
Statement Date: $______________
B. Aggregate amount of the two greatest quarterly
losses incurred during the four quarters
immediately preceding the Statement Date: $______________
C. Excess (deficiency) for covenant compliance
(Line VII.A less Line VII.B): $______________
D. Cumulative Consolidated Net Income for the four
quarters immediately preceding the Statement
Date: $______________
E. Excess (deficiency) for covenant compliance
(Line VII.D less $1.00): $______________
B-7
Form of Compliance Certificate
EXHIBIT C
FORM OF NOTE
_____________________ April 19, 2000
FOR VALUE RECEIVED, the undersigned (the "Borrower"), hereby promises to
--------
pay to the order of ________________. (the "Lender"), on the Maturity Date (as
------
defined in the Credit Agreement referred to below) the principal amount of
___________________ ($____________), or such lesser principal amount of Loans
(as defined in the Credit Agreement referred to below) payable by Borrower to
Lender on such Maturity Date under that certain Credit Agreement (3-Year), dated
as of April 19, 2000, among Borrower, Lenders from time to time party thereto,
Bank of America, N.A., as Administrative Agent and Issuing Lender (as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
---------
defined).
Borrower promises to pay interest on the unpaid principal amount of each
Loan from the date of such Loan until such principal amount is paid in full, at
such interest rates, and payable at such times as are specified in the Credit
Agreement.
All payments of principal and interest shall be made to Administrative
Agent for the account of Lender in United States dollars in immediately
available funds at Administrative Agent's Payment office.
If any amount is not paid in full when due hereunder, such unpaid amount
shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Credit Agreement.
This Note is one of the "Notes" referred to in the Credit Agreement.
-----
Reference is hereby made to the Credit Agreement for rights and obligations of
payment and prepayment, events of default and the right of Lender to accelerate
the maturity hereof upon the occurrence of such events. Loans made by Lender
shall be evidenced by one or more loan accounts or records maintained by Lender
in the ordinary course of business. Lender may also attach schedules to this
Note and endorse thereon the date, amount and maturity of its Loans and payments
with respect thereto.
Borrower, for itself, its successors and assigns, hereby waives diligence,
presentment, protest and demand and notice of protest, demand, dishonor and non-
payment of this Note.
Borrower agrees to pay all collection expenses, court costs and Attorney
Costs (whether or not litigation is commenced) which may be incurred by Lender
in connection with the collection or enforcement of this Note.
C-1
Form of Note
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA.
QUANTUM CORPORATION
By:__________________________
Name:________________________
Title:_______________________
C-2
Form of Note
LOANS AND PAYMENTS WITH RESPECT THERETO
Amount of Outstanding
End of Principal or Principal
Type of Amount of Interest Interest Paid Balance This Notation
Date Loan Made Loan Made Period This Date Date Made by
-------------------------------------------------------------------------------------------------
---------- ---------- ---------- ---------- ---------- ---------- ----------
---------- ---------- ---------- ---------- ---------- ---------- ----------
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---------- ---------- ---------- ---------- ---------- ---------- ----------
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---------- ---------- ---------- ---------- ---------- ---------- ----------
C-3
Form of Note
EXHIBIT D
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to that certain Credit Agreement (3-Year) dated as of
April 19, 2000 between Quantum Corporation, a Delaware corporation ("Borrower"),
--------
Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent and Issuing Lender (as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, the
"Agreement;" the terms defined therein being used herein as therein defined).
---------
The Assignor identified on Schedule 1 hereto ("Assignor") and the Assignee
--------
identified on Schedule l hereto ("Assignee") agree as follows:
--------
1. Assignor hereby irrevocably sells and assigns to Assignee without
recourse to Assignor, and Assignee hereby irrevocably purchases and assumes from
Assignor without recourse to Assignor, as of the Effective Date (as defined
below), the interest described in Schedule 1 hereto (the "Assigned Interest") in
-----------------
and to Assignor's rights and obligations under the Agreement with respect to
those Commitment(s) and Outstanding Obligations contained in the Agreement as
are set forth on Schedule 1 hereto (individually, an "Assigned Commitment";
-------------------
collectively, the "Assigned Commitments"), in the principal amount for each
--------------------
Assigned Commitment as set forth on Schedule 1 hereto.
2. Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the Agreement or with respect to the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Agreement, any other Loan Document or any other instrument or document furnished
pursuant thereto, other than that Assignor has not created any adverse claim
upon the interest being assigned by it hereunder and that such interest is free
and clear of any such adverse claim; and (b) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of
Borrower or any of its Subsidiaries or any other obligor or the performance or
observance by Borrower or any of its Subsidiaries or any other obligor of any of
its respective obligations under the Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto.
3. Assignee (a) represents and warrants that it is legally authorized to
enter into this Assignment and Acceptance; (b) confirms that it has received a
copy of the Agreement, together with copies of the most recent financial
statements delivered pursuant to Section 4.01 or 6.02 thereof, as applicable,
------------ ----
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Acceptance; (c) agrees that it will, independently and without reliance upon
Assignor, Administrative Agent or any other Lender and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Agreement, the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto; (d) appoints and authorizes Administrative Agent to take such
action as agent
D-1
Form of Assignment and Acceptance
on its behalf and to exercise such powers and discretion under the Agreement,
the other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto as are delegated to Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will
be bound by the provisions of the Agreement and will perform in accordance with
its terms all the obligations which by the terms of the Agreement are required
to be performed by it as a Lender.
4. The effective date of this Assignment and Acceptance shall be the
Effective Date of Assignment described in Schedule 1 hereto (the "Effective
---------
Date"). Following the execution of this Assignment and Acceptance, it will be
----
delivered to Administrative Agent and to the Borrower for its consent (if such
consent is required) and, if such consent is granted, for acceptance and
recording by Administrative Agent pursuant to the Agreement, effective as of the
Effective Date (which shall not, unless otherwise agreed to by Administrative
Agent, be earlier than five Business Days after the date of such acceptance and
recording by Administrative Agent.
5. Upon such consent, acceptance and recording, from and after the
Effective Date, Administrative Agent shall make all payments in respect of the
Assigned Interest (including payments of principal, interest, fees and other
amounts) to Assignee whether such amounts have accrued prior to or on or after
the Effective Date. Assignor and Assignee shall make all appropriate adjustments
in payments by Administrative Agent for periods prior to the Effective Date or
with respect to the making of this assignment directly between themselves.
6. From and after the Effective Date, (a) Assignee shall be a party to
the Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Lender thereunder and under the other Loan
Documents and shall be bound by the provisions thereof and (b) Assignor shall,
to the extent provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of California.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
D-2
Form of Assignment and Acceptance
SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE
--------------------------------------------------------------------------------
Amount of Outstanding Pro Rata Share Assigned (set
Commitment Assigned Obligations Assigned forth to at least 8 decimals)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Effective Date of Assignment: ____________, ________
ASSIGNOR
By:___________________________
Name:_________________________
Title:________________________
ASSIGNEE
By:___________________________
Name:_________________________
Title:________________________
The undersigned hereby consent to the within assignment:
QUANTUM CORPORATION
By:___________________________
Name:_________________________
Title:________________________
BANK OF AMERICA, N.A., as Administrative Agent
and as Issuing Lender
By:___________________________
Name:_________________________
Title:________________________
D-3
Form of Assignment and Acceptance
SCHEDULE 1.01
HDD CONVERTIBLE DEBT PORTION; MAXTOR MERGER
DOCUMENTS; SNAP SPIN-OFF DOCUMENTS
HDD Convertible Debt Portion
----------------------------
The HDD Convertible Debt Portion shall be 33.33%.
Maxtor Merger Documents
-----------------------
. Maxtor Merger Agreement.
. HDD Separation Agreement.
. HDD General Assignment Agreement.
. Tax Sharing and Indemnity Agreement among Borrower, Spinco and Maxtor.
. Transitional Services Agreement among Borrower, Spinco and Maxtor.
. Intellectual Property Agreement among Borrower, Spinco and Maxtor.
. Indemnification Agreement among Borrower, Spinco and Maxtor.
. Reimbursement Agreement, dated as of a date on prior to the Maxtor Merger
Effective Date between Borrower and Maxtor.
Snap Spin-Off Documents
-----------------------
. Snap Master Agreement.
. Snap General Assignment Agreement.
. Master Intellectual Property Agreement between Borrower and Snap Appliances.
. Snap Employee Matters Agreement.
. Tax Sharing Agreement between Borrower and Snap Appliances.
. Master Transitional Services Agreement between Borrower and Snap Appliances.
. Indemnification and Insurance Matters Agreement between Borrower and Snap
Appliances.
. Hard Disk Drive Supply Agreement dated as of June 30, 2000, entered into by
Snap Appliances and Borrower.
-1-
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
Lender Commitment Pro Rata Share
---------------------------------------------------------------------------------------------------------------------
Bank of America, N.A. $32,500,000 17.▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia $25,000,000 13.333333333%
Fleet National Bank $25,000,000 13.333333333%
BNP Paribas $20,000,000 10.666666667%
Citicorp USA, Inc. $20,000,000 10.666666667%
KeyBank National Association $20,000,000 10.666666667%
The Industrial Bank of Japan, Limited $15,000,000 8.000000000%
The Fuji Bank, Limited $10,000,000 5.333333333%
The Sumitomo Bank, Limited $10,000,000 5.333333333%
Union Bank of California, N.A. $10,000,000 5.333333333%
-------------------------------------------------------------------------------------------------------------------
Total $187,500,000 100.000000000%
------------ --------------
-1-
SCHEDULE 5.05
LITIGATION
On August 7, 1998, the Company was named as one of several defendants
in a patent infringement lawsuit filed in the U.S. District Court for the
Northern District of Illinois, Eastern Division. The plaintiff, Papst Licensing
GmbH, owns at least 26 U.S. patents, which it asserts that the Company has
infringed. In October 1999 the case was transferred to a federal district court
in New Orleans, Louisiana, where it has been joined with suits involving Maxtor
Corporation and Minebea Company, Ltd. for the purposes of coordinated discovery
under multi-district litigation rules. IBM has recently been sued by Papst and
has been added to the multi-district proceedings. The final results of this
litigation, as with any litigation, are uncertain. In addition, the costs of
engaging in litigation with Papst will be substantial.
The Company is also subject to other legal proceedings and claims that arise in
the ordinary course of its business. For example, in fiscal year 2000,
Discovision Associates brought patents they hold to the Company's attention.
While management currently believes the amount of ultimate liability, if any,
with respect to these actions will not materially affect the financial position,
results of operations, or liquidity of the Company, the ultimate outcome of any
litigation is uncertain. Were an unfavorable outcome to occur, the impact could
be material to the Company.
-1-
SCHEDULE 7.01
EXISTING INDEBTEDNESS AND LIENS
INDEBTEDNESS
1. Reimbursement Agreement between Sumitomo Bank, Ltd. and Quantum
Peripherals (Europe), S.A., dated September 14, 1998, related to
outstanding letters of credit in an amount not to exceed $85,000,000.
2. Tax Ownership Operating Lease (Colorado Springs, CO) between Quantum
Corporation and Lease Plan North America, Inc., dated August 25, 1997.
3. _______ Mortgage (Louisville, CO and Shrewsbury, MA), dated August 22,
1995, between Quantum Corporation and QD Investors securing $39,226,000
in outstanding principal as of December 31, 1999.
4. Reimbursement Agreement between Fleet National Bank and ATL Products,
Inc., a Subsidiary of Borrower, dated February 3, 1999, related to an
outstanding letter of credit in favor of National Westminster Bank, plc
in the amount of (Pounds)300,000.
LIENS
1. Lien (State: CO, file # 19992029330, dated 5/19/99) established under
the Equipment Lease Agreement between Quantum Corporation and ▇▇▇▇▇▇▇▇
Property Services, as Debtor, and BCL Capital.
2. Lien (State: CO, file # 19992024197, dated 4/29/99) established under
the Equipment Lease Agreement between Quantum Corporation and Colorado
Business Leasing, Inc.
3. Lien (State: CO, file # 19982060561, dated 9/24/98) established under
the Master Lease Agreement between Quantum Corporation and Avnet
Computer, a division of Avnet, Inc.
4. Lien (State: CO, file # 19972076228, dated 9/5/97) established under
the Financing Statement between Quantum Corporation and Lease Plan
North America, Inc.
5. Lien (State: CO, file # 199F0722387, dated 9/5/97) established under
the Financing Statement between Quantum Corporation and Lease Plan
North America, Inc.
6. Lien (State: CO, file # 962097106, dated 12/30/96) established under
the Agreement between Quantum Corporation and American Leasing, Inc.
-1-
7. Lien (State: CO, file # 962081967, dated 10/31/96) established under
the Agreement between Quantum Corporation and ▇▇▇▇▇▇ Leasing, Inc.
8. Lien (State: CA, file # 9732260586, dated 11/18/97) established under
the Lease Agreement between ATL Products, Inc. and Sun Microsystems
Finance.
9. Lien (State: CA, file # 9807660402, dated 3/16/98) established under
the Lease Agreement between ATL Products, Inc. and Union Bank of
California, N.A.
10. Lien (State: CA, file # 9821760711, dated 8/4/98) established under the
Subordination Agreement between ATL Products, Inc. and Mellon US
Leasing, a Division of Mellon Leasing Corporation.
11. Lien (State: CA, file # 9830060877, dated 10/23/98) established under
the Equipment Schedule between ATL Products, Inc. and Mellon US
Leasing, a Division of Mellon Leasing Corporation.
12. Lien (State: CA, file # 9903660704, dated 2/4/99) established under the
Equipment Schedule between ATL Products, Inc. and Mellon US Leasing, a
Division of Mellon Leasing Corporation.
13. Lien (State: CA, file # 9714961077, dated 5/27/97) established under
rental between ATL Products, Inc. and Inter-Tel Leasing, Inc.
14. Lien (State: CA, file # 9719760464, dated 7/11/97) established under
the Agreement between ATL Products, Inc. and Imperial Bank.
15. Lien (State: CA, file # 9510460180, dated 4/10/95) established under
the Financing Agreement between Quantum Corporation and Hewlett-Packard
Company.
16. Lien (State: CA, file # 9510460187, dated 4/10/95) established under
the Financing Agreement between Quantum Corporation and Hewlett-Packard
Company.
17. Lien (State: CA, file # 9526460720, dated 9/18/95) established under
the Alternative Purchase Plan between Quantum Corporation and AT&T
Capital Services Corporation.
18. Lien (State: CA, file # 9620660866, dated 6/22/96) established under
the Financing Agreement between Quantum Corporation and Hewlett-Packard
Company.
19. Lien (State: CA, file # 9623360189, dated 8/16/96) established under
the Security Agreement between Quantum Corporation and Orix Credit
Alliance, Inc.
-2-
20. Lien (State: CA, file # 9636660392, dated 12/30/96) established under
the Equipment Lease Agreement between Quantum Corporation and American
Leasing, Inc.
21. Lien (State: CA, file # 9724660679, dated 9/2/97) established under the
Financing Statement between Quantum Corporation and ABN AMRO Bank, N.V.
San Francisco International Branch, as Agent.
22. Lien (State: CA, file # 9733960635, dated 12/1/97) established under
the Security Agreement between Quantum Corporation and Unisource
Worldwide, Inc.
23. Lien (State: CA, file # 9813360891, dated 5/12/98) established under
the Agreement between Quantum Corporation and AT&T Capital Corporation,
Instrument and Data Services.
24. Lien (State: CA, file # 9818960462, dated 7/6/98) established under the
Agreement between Quantum Corporation and Employment Development
Department.
25. Lien (State: CA, file # 9934060376, dated 12/1/99) established under
the Agreement between Quantum Corporation and Newcourt Technologies
Corp (dba Newcourt Financial-Technology Rentals & Services.
26. Lien (State: CA, file # 9934060391, dated 12/1/99) established under
the Agreement between Quantum Corporation and Newcourt Technologies
Corp (dba Newcourt Financial-Technology Rentals & Services).
27. Lien (State: CA, file # 0003860457, dated 2/2/00) established under the
Equipment Agreement between Quantum Corporation and ATEL Business
Credit, Inc.
28. Lien (State: MA, file # 345962, dated 5/25/95) established under the
Schedule between Quantum Corporation and Comdisco, Inc.
29. Lien (State: MA, file # 343626, dated 10/11/95) established under the
Agreement between Quantum Corporation and Comdisco, Inc.
30. Lien (State: MA, file # 371364, dated 2/23/96) established under the
Agreement between Quantum Corporation and Business Credit Leasing.
31. Lien (State: MA, file # 425668, dated 10/25/96) established under the
Financing Agreement between Quantum Corporation and Hewlett-Packard
Company.
32. Lien (State: MA, file # 456959, dated 3/25/97) established under the
Agreement between Quantum Corporation and Sanwa Leasing Corporation.
33. Lien (State: MA, file # 449499, dated 2/18/97) established under the
Financing Agreement between Quantum Corporation and Hewlett-Packard
Company.
-3-
34. Lien (State: MA, file # 459264, dated 4/7/97) established under the
Agreement between Quantum Corporation and Sanwa Leasing Corporation.
35. Lien (State: MA, file # 468158, dated 5/12/97) established under the
Financing Agreement between Quantum Corporation and Hewlett-Packard
Company.
36. Lien (State: MA, file # 518464, dated 12/22/97) established under the
Agreement between Quantum Corporation and Sanwa Leasing Corporation.
37. Lien (State: MA, file # 582939, dated 10/9/98) established under the
Agreement between Quantum Corporation and Hewlett-Packard Company.
-4-
SCHEDULE 7.13
SUBORDINATION PROVISIONS
Section [__].1 Agreement of Subordination. [Quantum Corporation]
--------------------------
covenants and agrees, and each holder of Notes issued hereunder by his
acceptance thereof likewise covenants and agrees, that all Notes shall be issued
subject to the provisions of this Article [__]; and each Person holding any
Note, whether upon original issue or upon transfer, assignment or exchange
thereof, accepts and agrees to be bound by such provisions.
The payment of the principal of, premium, if any, and interest on all
Notes (including, but not limited to, the redemption price with respect to the
Notes called for redemption in accordance with Section [__] [Notice of
Redemption: Selection of Notes] or submitted for redemption in accordance with
Section [__] [Redemption at Option of Holders], as the case may be, as provided
in this Indenture) issued hereunder shall, to the extent and in the manner
hereinafter set forth, be subordinated and subject in right of payment to the
prior payment in full of all Senior Indebtedness, whether outstanding at the
date of this Indenture or thereafter incurred.
No provision of this Article [__] shall prevent the occurrence of any
default or Event of Default hereunder.
Section [__].2 Payments to Noteholders. No payment shall be made with
-----------------------
respect to the principal of, or premium, if any, or interest on the Notes
(including, but not limited to, the redemption price with respect to the Notes
to be called for redemption in accordance with Section [__] [Notice of
Redemption: Selection of Notes] or submitted for redemption in accordance with
Section [__] [Redemption at Option of Holders], as the case may be, as provided
in this Indenture), except payments and distributions made by the Trustee as
permitted by the first or second paragraph of Section [__].5, if:
(i) a default in the payment of principal, premium,
interest, rent or other obligations due on any Senior
Indebtedness occurs and is continuing (or, in the
case of Senior Indebtedness for which there is a
period of grace, in the event of such a default that
continues beyond the period of grace, if any,
specified in the instrument or lease evidencing such
Senior Indebtedness), unless and until such default
shall have been cured or waived or shall have ceased
to exist; or
(ii) a default, other than a payment default, on a
Designated Senior Indebtedness occurs and is
continuing that then permits holders of such
Designated Senior Indebtedness to accelerate its
maturity and the Trustee receives a notice of the
default (a "Payment Blockage Notice") from a
Representative or [Quantum Corporation].
If the Trustee receives any Payment Blockage Notice pursuant to clause
(ii) above, no subsequent Payment Blockage Notice shall be effective for
purposes of this Section [__].2 unless
-1-
and until (A) at least 365 days shall have elapsed since the initial
effectiveness of the immediately prior Payment Blockage Notice, and (B) all
scheduled payments of principal, premium, if any, and interest on the Notes that
have come due have been paid in full in cash. No nonpayment default that existed
or was continuing on the date of delivery of any Payment Blockage Notice to the
Trustee shall be, or be made, the basis for a subsequent Payment Blockage
Notice.
[Quantum Corporation] may and shall resume payments on and
distributions in respect of the Notes upon the earlier of:
(1) the date upon which the default is cured or waived or ceases to
exist, or
(2) in the case of a default referred to in clause (ii) above, 179
days pass after notice is received if the maturity of such Designated Senior
Indebtedness has not been accelerated, unless this Article [__] otherwise
prohibits the payment or distribution at the time of such payment or
distribution.
Upon any payment by [Quantum Corporation], or distribution of assets of
[Quantum Corporation] of any kind or character, whether in cash, property or
securities, to creditors upon any dissolution or winding-up or liquidation or
reorganization of [Quantum Corporation], whether voluntary or involuntary or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due or to
become due upon all Senior Indebtedness shall first be paid in full in cash or
other payment satisfactory to the holders of such Senior Indebtedness, or
payment thereof in accordance with its terms provided for in cash or other
payment satisfactory to the holders of such Senior Indebtedness before any
payment is made on account of the principal of, premium, if any, or interest on
the Notes (except payments made pursuant to Article [__] [Trustee Provisions]
from monies deposited with the Trustee pursuant thereto prior to commencement of
proceedings for such dissolution, winding-up, liquidation or reorganization);
and upon any such dissolution or winding-up or liquidation or reorganization of
[Quantum Corporation] or bankruptcy, insolvency, receivership or other
proceeding, any payment by [Quantum Corporation], or distribution of assets of
[Quantum Corporation] of any kind or character, whether in cash, property or
securities, to which the holders of the Notes or the Trustee would be entitled,
except for the provision of this Article [__], shall (except as aforesaid) be
paid by [Quantum Corporation] or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the holders of the Notes or by the Trustee under this Indenture if
received by them or it, directly to the holders of Senior Indebtedness (pro rata
to such holders on the basis of the respective amounts of Senior Indebtedness
held by such holders, or as otherwise required by law or a court order) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay all Senior Indebtedness in full, in cash or other payment
satisfactory to the holders of such Senior Indebtedness, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness, before any payment or distribution is made to the holders of the
Notes or to the Trustee.
-2-
For purposes of this Article [__], the words, "cash, property or
securities" shall not be deemed to include shares of stock of [Quantum
Corporation] as reorganized or readjusted, or securities of [Quantum
Corporation] or any other corporation provided for by a plan of reorganization
or readjustment, the payment of which is subordinated at least to the extent
provided in this Article [__] with respect to the Notes to the payment of all
Senior Indebtedness which may at the time be outstanding; provided that (i) the
--------
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any reorganization or readjustment, and (ii) the rights of the holders of Senior
Indebtedness (other than leases which are not assumed by [Quantum Corporation]
or the new corporation, as the case may be) are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
[Quantum Corporation] with, or the merger of [Quantum Corporation] into, another
corporation or the liquidation or dissolution of [Quantum Corporation] following
the conveyance or transfer of its property as an entirety, or substantially as
an entirety, to another corporation upon the terms and conditions provided for
in Article [__] [Consolidation, Merger, Sale, Conveyance and Lease] shall not be
deemed a dissolution, winding-up, liquidation or reorganization for the purposes
of this Section [__].2 if such other corporation shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions stated
in Article [__] [Consolidation, Merger, Sale, Conveyance and Lease].
In the event of the acceleration of the Notes because of an Event of
Default, no payment or distribution shall be made to the Trustee or any holder
of Notes in respect of the principal of, premium, if any, or interest on the
Notes (including, but not limited to, the redemption price with respect to the
Notes called for redemption in accordance with Section [__] [Notice of
Redemption; Selection of Notes] or submitted for redemption in accordance with
Section [__] [Redemption at Option of Holders], as the case may be, as provided
in this Indenture), except payments and distributions made by the Trustee as
permitted by the first or second paragraph of Section [__].5, until all Senior
Indebtedness has been paid in full in cash or other payment satisfactory to the
holders of Senior Indebtedness or such acceleration is rescinded in accordance
with the terms of this Indenture. If payment of the Notes is accelerated because
of an Event of Default, [Quantum Corporation] shall promptly notify holders of
Senior Indebtedness of the acceleration.
In the event that, notwithstanding the foregoing provisions, any
payment or distribution of assets of [Quantum Corporation] of any kind or
character, whether in cash, property or securities (including, without
limitation, by way of setoff or otherwise), prohibited by the foregoing, shall
be received by the Trustee or the holders of the Notes before all Senior
Indebtedness is paid in full in cash or other payment satisfactory to the
holders of such Senior Indebtedness, or provision is made for such payment
thereof in accordance with its terms in cash or other payment satisfactory to
the holders of such Senior Indebtedness, such payment or distribution shall be
held in trust for the benefit of and shall be paid over or delivered to the
holders of Senior Indebtedness or their representative or representatives, or to
the trustee or trustees under any indenture pursuant to which any instruments
evidencing any Senior Indebtedness . may have been issued, as their respective
interests may appear, as calculated by [Quantum Corporation], for application to
the payment of all Senior Indebtedness remaining unpaid to the extent necessary
to pay all Senior Indebtedness in full in cash or other payment satisfactory to
the holders of such Senior Indebtedness, after giving effect to any concurrent
payment or distribution to or for the holders of such Senior Indebtedness.
-3-
Nothing in this Section [__].2 shall apply to claims of, or payments
to, the Trustee under or pursuant to Section [__] [Compensation and Expenses of
Trustee]. This Section [__].2 shall be subject to the further provisions of
Section [__].5.
Section [__].3 Subrogation of Notes. Subject to the payment in full of
--------------------
all Senior Indebtedness, the rights of the holders of the Notes shall be
subrogated to the extent of the payments or distributions made to the holders of
such Senior Indebtedness pursuant to the provisions of this Article [__]
(equally and ratably with the holders of all indebtedness of [Quantum
Corporation] which by its express terms is subordinated to other indebtedness of
[Quantum Corporation] to substantially the same extent as the Notes are
subordinated and is entitled to like rights of subrogation) to the rights of the
holders of Senior Indebtedness to receive payments or distributions of cash,
property or securities of [Quantum Corporation] applicable to the Senior
Indebtedness until the principal, premium, if any, and interest on the Notes
shall be paid in full; and, for the purposes of such subrogation, no payments or
distributions to the holders of the Senior Indebtedness of any cash, property or
securities to which the holders of the Notes or the Trustee would be entitled
except for the provisions of this Article [__] and no payment over pursuant to
the provisions of this Article [__] to or for the benefit of the holders of
Senior Indebtedness by holders of the Notes or the Trustee, shall, as between
[Quantum Corporation], its creditors other than holders of Senior Indebtedness,
and the holders of the Notes, be deemed to be a payment by [Quantum Corporation]
to or on account of the Senior Indebtedness; and no payments or distributions of
cash, property or securities to or for the benefit of the holders of the Notes
pursuant to the subrogation provisions of this Article [__], which would
otherwise have been paid to the holders of Senior Indebtedness shall be deemed
to be a payment by [Quantum Corporation] to or for the account of the Notes. It
is understood that the provisions of this Article [__] are and are intended
solely for the purposes of defining the relative rights of the holders of the
Notes, on the one hand, and the holders of the Senior Indebtedness, on the other
hand.
Nothing contained in this Article [__] or elsewhere in this Indenture
or in the Notes is intended to or shall impair, as among [Quantum Corporation]
its creditors other than the holders of Senior Indebtedness, and the holders of
the Notes, the obligation of [Quantum Corporation], which is absolute and
unconditional, to pay to the holders of the Notes the principal of (and premium,
if any) and interest on the Notes as and when the same shall become due and
payable in accordance with their terms, or is intended to or shall affect the
relative rights of the holders of the Notes and creditors of [Quantum
Corporation] other than the holders of the Senior Indebtedness, nor shall
anything herein or therein prevent the Trustee or the holder of any Note from
exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article [__] of the
holders of Senior Indebtedness in respect of cash, property or securities of
[Quantum Corporation] received upon the exercise of any such remedy.
Upon any payment or distribution of assets of [Quantum Corporation]
referred to in this Article [__], the Trustee, subject to the provisions of
Section [__] [Duties and Responsibilities of Trustee], and the holders of the
Notes shall be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such bankruptcy, dissolution, winding-up,
liquidation or reorganization proceedings are pending, or a certificate of the
receiver, trustee in bankruptcy, liquidating trustee, agent or other person
making such payment or distribution, delivered to the Trustee or to the holders
of the Notes, for the purpose of ascertaining the persons
-4-
entitled to participate in such distribution, the holders of the Senior
Indebtedness and other indebtedness of [Quantum Corporation], the amount thereof
or payable thereon and all other facts pertinent thereto or to this Article
[__].
Section [__].4 Authorization to Effect Subordination. Each holder of a
-------------------------------------
Note by the holder's acceptance thereof authorizes and directs the Trustee on
the holder's behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article [__] and appoints the
Trustee to act as the holder's attorney-in-fact for any and all such purposes.
If the Trustee does not file a proper proof of claim or proof of debt in the
form required in any proceeding referred to in the third paragraph of Section
[__] [Payments of Notes on Default; Suit Therefor] hereof at least 30 days
before the expiration of the-time to file such claim, the holders of any Senior
Indebtedness or their representatives are hereby authorized to file an
appropriate claim for and on behalf of the holders of the Notes.
Section [__].5 Notice to Trustee. [Quantum Corporation] shall give
-----------------
prompt written notice in the form of an Officers' Certificate to a Responsible
Officer of the Trustee and to any paying agent of any fact known to [Quantum
Corporation] which would prohibit the making of any payment of monies to or by
the Trustee or any paying agent in respect of the Notes pursuant to the
provisions of this Article [__]. Notwithstanding the provisions of this Article
[__] or any other provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would prohibit the making of
any payment of monies to or by the Trustee in respect of the Notes pursuant to
the provisions of this Article [__], unless and until a Responsible Officer of
the Trustee shall have received written notice thereof at the Corporate Trust
Office from [Quantum Corporation] (in the form of an Officers Certificate) or a
Representative or a holder or holders of Senior Indebtedness or from-any trustee
thereof; and before the receipt of any such written notice, the Trustee, subject
to the provisions of Section [__] [Duties and Responsibilities of Trustee],
shall be entitled in all respects to assume that no such facts exist; provided
that if on a date not fewer than one Business Day prior to the date upon which
by the terms hereof any such monies may become payable for any purpose
(including, without limitation, the payment of the principal of, or premium, if
any, or interest on any Note) the Trustee shall not have received, with respect
to such monies, the notice provided for in this Section [__].5, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such monies and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date.
Notwithstanding anything in this Article [__] to the contrary, nothing
shall prevent any payment by the Trustee to the Noteholders of monies deposited
with it pursuant to Section [__] [Discharge of Indenture], and any such payment
shall not be subject to the provisions of Section [__].1 or [__].2.
The Trustee, subject to the provisions of Section [__] [Duties and
Obligations of Trustee], shall be entitled to rely on the delivery to it of a
written notice by a Representative or a person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such notice has been given by a Representative or a holder of
Senior Indebtedness or a trustee on behalf of any such holder or holders. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person
-5-
as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Article [__], the Trustee may request such person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such person, the extent to which such person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such person under this Article [__] and if such
evidence is not furnished the Trustee may defer any payment to such person
pending judicial determination as to the right of such person to receive such
payment.
Section [__].6 Trustee Is Relation to Senior Indebtedness. The Trustee
------------------------------------------
in its individual capacity shall be entitled to all the rights set forth in this
Article [__] in respect of any Senior Indebtedness at any time held by it, to
the same extent as any other holder of Senior Indebtedness, and nothing in
Section [__] [Limitations on Rights of Trustee as Creditor] or elsewhere in this
Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article [__], and no implied covenants or
obligations with respect to the holders of Senior Indebtedness shall be read
into this Indenture against the Trustee. The Trustee shall not be deemed to owe
any fiduciary duty to the holders of Senior Indebtedness and subject to the
provisions of Section [__] [Duties and Obligations of Trustee], the Trustee
shall not be liable to any holder of Senior Indebtedness if it shall pay over or
deliver to holders of Notes, [Quantum Corporation] or any other person money or
assets to which any holder of Senior Indebtedness shall be entitled by virtue of
this Article [__] or otherwise.
Section [__].7 No Impairment of Subordination. No right of any present
------------------------------
or future holder of any Senior Indebtedness to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or
failure to act on the part of [Quantum Corporation] or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by [Quantum
Corporation] with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof which any such holder may have or otherwise
be charged with.
Section [__].8 Certain Conversions Deemed Payment. For the purposes of
----------------------------------
this Article [__] only, (1) the issuance and delivery of junior securities upon
conversion of Notes in accordance with Article [__] [Conversion of Notes] shall
not be deemed to constitute a payment or distribution on account of the
principal of (or premium, if any) or interest on Notes or on account of the
purchase or other acquisition of Notes, and (2) the payment, issuance or
delivery of cash (except in satisfaction of fractional shares pursuant to
Section 15.[__] [Cash Payment in Lieu of Fractional Shares]), property or
securities (other than junior securities) upon conversion of a Note shall be
deemed to constitute payment on account of the principal of such Note. For the
purposes of this Section [__].8, the term "junior securities" means (a) shares
of any stock of any class of [Quantum Corporation], or (b) securities of
[Quantum Corporation] which are subordinated in right of payment to all Senior
Indebtedness which may be outstanding at the time of issuance or delivery of
such securities to substantially the same extent as, or to a greater extent
than, the Notes are so subordinated as provided in this Article [__]. Nothing
contained in this Article [__] or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as among [Quantum Corporation], its creditors other
than holders of Senior Indebtedness and the
-6-
Noteholders, the right, which is absolute and unconditional, of the Holder of
any Note to convert such Note in accordance with Article [__] [Conversion of
Notes].
Section [__].9 Article Applicable to Paying Agents. If at any time any
-----------------------------------
paying agent other than the Trustee shall have been appointed by [Quantum
Corporation] and be then acting hereunder, the term "Trustee" as used in this
Article [__] shall (unless the context otherwise requires) be construed as
extending to and including such paying agent within its meaning as fully for all
intents and purposes as if such paying agent were named in this Article [__] in
addition to or in place of the Trustee; provided, however, E-hat the first
paragraph of Section [__].5 shall not apply to [Quantum Corporation] or any
Affiliate of [Quantum Corporation] if it or such Affiliate acts as paying agent.
Section [__].10 Senior Indebtedness Entitled to Rely. The holders of
------------------------------------
Senior Indebtedness (including, without limitation, Designated Senior
Indebtedness) shall have the right to rely upon this Article [__], and no
amendment or modification of the provisions contained herein shall diminish the
rights of such holders unless such holders shall have agreed in writing thereto.
Definitions:
Designated Senior Indebtedness: The term "Designated Senior
------------------------------
Indebtedness" means the Bank of America Credit Agreement and any particular
Senior Indebtedness in which the instrument creating or evidencing the same or
the assumption or guarantee thereof (or related agreements or documents to which
[Quantum Corporation] is a party) expressly provides that such Indebtedness
shall be "Designated Senior Indebtedness" for purposes of the Indenture
(provided that such instrument, agreement or other document may place
limitations and conditions on the right of such Senior Indebtedness to exercise
the rights of Designated Senior Indebtedness). If any payment made to any holder
of any Designated Senior Indebtedness or its Representative with respect to such
Designated Senior Indebtedness is rescinded or must otherwise be returned by
such holder or Representative upon the insolvency, bankruptcy or reorganization
of [Quantum Corporation] or otherwise, the reinstated Indebtedness of [Quantum
Corporation] arising as a result of such rescission or return shall constitute
Designated Senior Indebtedness effective as of the date of such rescission or
return.
Senior Indebtedness: The term "Senior Indebtedness" means the principal
-------------------
of, premium, if any, interest (including all interest accruing subsequent to the
commencement of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such proceeding) and rent
payable on or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or in connection with, Indebtedness of [Quantum
Corporation], whether outstanding on the date of this Indenture or thereafter
created, incurred, assumed, guaranteed or in effect guaranteed by [Quantum
Corporation] (including all deferrals, renewals, extensions or refundings of, or
amendments, modifications or supplements to, the foregoing), unless in the case
of any particular Indebtedness the instrument creating or evidencing the same or
the assumption or guarantee thereof expressly provides that such Indebtedness
shall not be senior in right of payment to the Notes or expressly provides that
such Indebtedness is "pari passu" or "junior" to the Notes. Notwithstanding the
foregoing, the term Senior Indebtedness shall not include any Indebtedness of
[Quantum Corporation] to any subsidiary of [Quantum Corporation], a majority of
the voting stock of which is owned, directly or indirectly, by
-7-
[Quantum Corporation] or [Quantum Corporation]'s 5% Convertible Subordinated
Debentures due April 1, 2002. If any payment made to any holder of any Senior
Indebtedness or its Representative with respect to such Senior Indebtedness is
rescinded or must otherwise be returned by such holder or Representative upon
the insolvency, bankruptcy or reorganization of [Quantum Corporation] or
otherwise, the reinstated Indebtedness of [Quantum Corporation] arising as a
result of such rescission or return shall constitute Senior Indebtedness
effective as of the date of such rescission or return.
Bank of America Credit Agreement: The term "Bank of America Credit
--------------------------------
Agreement" means that certain Credit Agreement (3-Year), dated as of April 19,
2000, by and among [Quantum Corporation], Bank of America, N.A. as
administrative agent and Issuing Lender thereunder, and each lender from time to
time party thereto, as amended, amended and restated, supplemented or otherwise
modified from time to time.
-8-
SCHEDULE 10.02
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
QUANTUM CORPORATION
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Assistant Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
ADMINISTRATIVE AGENT'S OFFICE:
Notices for Borrowing, Conversions/Continuations, and Payments:
Bank of America, N.A.
Mail Code: CA4-706-05-09
Agency Administrative Services #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
Other Notices:
Bank of America, N.A.
Technology #3697
Mail Code: CA5-705-12-08
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-1-
Agent's Payment Office:
Bank of America, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Agency Services--West #5596
Reference: Quantum Corporation (3-yr)
For credit to FTA Acct. No. 3750836479
ABA Number: ▇▇▇-▇▇▇-▇▇▇
BANK OF AMERICA, N.A., as Issuing Lender
Trade Operations-Los Angeles #226521
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Mail Code: CA9-703-19-23
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
BANK OF AMERICA, N.A., as Lender
Domestic and Offshore Lending Office:
(Borrowing Notices, Notices of Conversion/Continuation and Payments)
Bank of America, N.A.
Mail Code: CA4-706-05-09
Agency Administrative Services #5596
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
-2-
BNP PARIBAS
Domestic and Offshore Lending Office:
BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇.▇▇▇▇@▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
BNP Paribas
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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THE BANK OF NOVA SCOTIA
Domestic and Offshore Lending Office:
The Bank of Nova Scotia
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Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The Bank of Nova Scotia
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CITICORP USA, INC.
Domestic and Offshore Lending Office:
Citicorp USA, Inc.
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Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Citicorp USA, Inc.
Citicorp Center
One Sansome Street - ▇▇▇▇ ▇▇▇▇▇
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FLEET NATIONAL BANK
Domestic and Offshore Lending Office:
Fleet National Bank
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E-mail: ▇▇▇▇▇_▇_▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Fleet National Bank
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THE FUJI BANK, LIMITED
Domestic and Offshore Lending Office:
The Fuji Bank, Limited
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▇▇▇▇ ▇▇. - US Corp. Finance
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E-mail: n/a
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The Fuji Bank, Limited
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▇▇▇▇ ▇▇. - US Corp. Finance
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THE INDUSTRIAL BANK OF JAPAN, LIMITED
Domestic and Offshore Lending Office:
The Industrial Bank of Japan, Limited
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Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The Industrial Bank of Japan, Limited
One Market
Spear Street Tower, 1610
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KEYBANK NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
KeyBank National Association
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E-mail: ▇▇▇▇▇▇_▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Key Corporate Capital, Inc.
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THE SUMITOMO BANK, LIMITED
Domestic and Offshore Lending Office:
The Sumitomo Bank, Limited
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Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The Sumitomo Bank, Limited
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UNION BANK OF CALIFORNIA, N.A.
Domestic and Offshore Lending Office:
Union Bank of California, N.A.
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Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Union Bank of California, N.A.
Technology Banking Group
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