Exhibit 10.2
▇▇▇▇▇▇ ELECTRONICS CORPORATION
FIRST AMENDMENT
TO REVOLVING CREDIT AGREEMENT (364 DAY FACILITY)
This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT (364-DAY FACILITY)
(this "Amendment") is dated as of December 3, 1998 and entered into by and among
▇▇▇▇▇▇ ELECTRONICS CORPORATION (formerly known as ▇▇▇▇▇▇ NETWORK SYSTEMS, INC.),
a Delaware corporation (the "Borrower"), the financial institutions listed on
the signature pages hereof (the "Banks"), BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as the administrative agent for the Banks (in such capacity
the "Administrative Agent"), CITICORP USA, INC. as the co-administrative agent
(in such capacity the "Co-Administrative Agent") and ▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK as syndication agent (the "Syndication Agent") and is made
with reference to that certain Credit Agreement dated as of December 5, 1997 (as
so amended, the "Credit Agreement"), by and among the Borrower, the lending
institutions identified therein, the Administrative Agent, the Co-Administrative
Agent and the Syndication Agent. Capitalized terms used herein without
definition shall have the same meanings herein as set forth in the Credit
Agreement.
RECITALS
WHEREAS, Borrower and Banks desire to amend the Credit Agreement to
(i) extend the Termination Date to December 1, 1999; (ii) to permit the Borrower
annually to request an extension of the Termination Date no earlier than 60 days
and no later than 45 days prior to the existing Termination Date; (iii) to
revise Schedule 1 to the Credit Agreement; (iv) to revise the definition of
Applicable Amount and (v) make certain other amendments as set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 Amendments to Cover Page and Introductory Paragraph
---------------------------------------------------
(A) The cover page of the Credit Agreement is hereby amended by
adding "Citicorp USA, Inc. as Co-Administrative Agent" immediately following
"Bank Of America National Trust and Savings Association as Administrative
Agent"; by deleting "Citicorp USA, Inc. and The Chase Manhattan Bank as
Documentation Agents" and by deleting "BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇" and
replacing it with "▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc."
(B) The definition of "Banks" in the introductory paragraph of the
Credit Agreement is hereby modified to refer to the banks set forth on Schedule
1 attached hereto.
(C) The introductory paragraph of the Credit Agreement is hereby
further amended by adding the following phrase immediately after "(in such
capacity "Administrative Agent")": "Citicorp USA, Inc., as co-administrative
agent (in such capacity "Co-Administrative Agent and")" and by deleting ", and
Citicorp USA, Inc. and The Chase Manhattan Bank as Documentation Agents (in such
capacity "Documentation Agents")".
1.2 Amendments to Section 1: Definitions
-------------------------------------
(A) Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted in proper
alphabetical order:
"Co-Administrative Agent" means Citicorp USA, Inc.
"Commitment Increase Letter" means a letter notifying the
Administrative Agent of a Bank's desire to increase its Commitment pursuant to
Section 11.18 hereof, in substantially the form of Exhibit H hereto.
---------
"Extension Request" means a Request for Extension delivered by the
Borrower to the Banks to request an extension of the Termination Date in
accordance with the provisions of Section 2.13, in substantially the form of
Exhibit G hereto.
---------
"New Bank" or "New Banks" means additional lending institutions added
as Banks in accordance with Section 11.18 hereof.
"Utilization Fee" means 12.5 basis points per annum.
(B) Subsection 1.1 of the Credit Agreement is hereby further amended
by deleting the definition of "Applicable Level," in its entirety.
(C) Subsection 1.1 of the Credit Agreement is hereby further amended
by deleting the definitions of "Applicable Amount," "Arrangers," "Reference
Banks," and "Termination Date" therefrom in their entirety and substituting the
following therefor:
"Applicable Amount" means 25 basis points per annum.
"Arranger" means ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
"Reference Banks" means Bank of America, Citibank, N.A. and ▇▇▇▇▇▇
Guaranty Trust Company of New York.
"Termination Date" means December 1, 1999; provided, however, that, if
any Bank has consented to an Extension Request in accordance with Section 2.13
with regard to the then existing Termination Date, then, subject to Section
2.13(b), the then existing Termination Date as to such Bank shall be
automatically extended for 364 days from the then existing Termination Date;
provided further, however, that, notwithstanding any other provisions of this
Agreement to the contrary, the Termination Date shall occur upon the earlier
termination in whole of the Commitments pursuant to Section 3.5 or 9.1.
2
1.3 Amendments to Section 2: The Credit
-----------------------------------
(A) The following shall be added at the end of the first sentence
of Section 2.6(a): "plus the Utilization Fee (computed daily on the basis of a
three hundred sixty (360) day year and actual days elapsed) with respect to each
day on which the aggregate amount of outstanding Loans exceeds 50% of the Total
Commitment."
(B) The following shall be inserted in the second sentence of
Section 2.6(a) after "Borrower shall pay interest": "and the Utilization Fee".
(C) The term "Applicable Amount" shall be deleted from the first
sentence of Section 2.12, and replaced with "5 basis points per annum".
(D) A new Section 2.13 shall be added to the Credit Agreement, as
follows:
"2.13 Extension of Termination Date. (a) The Borrower may, no earlier
-----------------------------
than 60 days and not later than 45 days prior to the then effective Termination
Date (as it may be extended from time to time pursuant hereto), request in
writing that the Termination Date be extended for an additional 364 days by
sending to the Administrative Agent, which will promptly then provide a copy to
each Bank, an Extension Request. After Borrower's request, each Bank may, in
its sole discretion, consent or not consent to such extension by giving written
notice thereof to the Administrative Agent no earlier than 30 days prior to the
then existing Termination Date, but in any event no later than 20 days prior to
the then existing Termination Date. Each Bank's annual decision as to whether
to extend the Termination Date shall be based, in part, on a new credit analysis
utilizing then current information in respect of Borrower's business, financial
condition and operations and other information furnished by Borrower. Failure
of any Bank to respond within such 20 day period shall be deemed to be a refusal
of such request by such Bank. The Administrative Agent shall promptly notify
each Bank and Borrower of any Bank's decision to reject the proposed extension.
(b) If, in accordance with the provisions of this Section 2.13, a
Bank consents to the extension of the Termination Date, the Termination Date for
such Bank shall be extended for 364 days from the then current Termination Date,
without any further action by Borrower or such Bank; provided that no such
--------
extension shall be effective unless the Commitments of Banks agreeing to so
extend the Termination Date plus the Commitments of any New Banks which have
agreed to become party to this Agreement pursuant to Section 11.18 constitute at
least 50% of the Total Commitment existing on the date hereof.
(c) If any Bank does not consent to a request for an extension of
the Termination Date, or is deemed not to have consented to the requested
extension, and the Termination Date has been extended for the other Bank(s): (i)
the Borrower may, prior to the end of the non-extended Termination Date,
terminate such Bank's Commitment under this Agreement upon payment in full of
principal and interest on all Loans made by such Bank together with such other
sums, if any, that may be due by reason of such prepayment and any fees owing to
such Bank and, in connection with such termination, the Borrower may replace
3
such non-consenting Bank with a New Bank or increase the Commitment of an
existing Bank, in each case pursuant to Section 11.18; and (ii) if the Borrower
has not previously terminated such non-consenting Bank's Commitment under this
Credit Agreement and paid principal and interest on the Loans held by such non-
consenting Bank and other amounts due to such non-consenting Bank as provided
above, then such principal and interest and other amounts due to such non-
consenting Bank shall be due and payable on the non-extended Termination Date
and the Termination Date shall not be extended insofar as such non-consenting
Bank is concerned."
1.4 Amendments to Section 11: Miscellaneous Provisions
---------------------------------------------------
(A) The following shall be deleted from the end of the first
sentence of Section 11.11(a):
"; provided, further, that upon any such assignment hereunder, such
Bank shall concurrently assign to the same Assignee a ratable portion of its
loans, commitments and other rights and obligations under the Revolving Credit
Agreement (Multi-Year Facility) dated as of even date herewith, among Borrower,
the banks parties thereto, Bank of America National Trust and Savings
Association, as administrative agent, ▇▇▇▇▇▇ Guaranty Trust Company of New York,
as syndication agent and Citicorp USA, Inc. and The Chase Manhattan Bank as
documentation agents."
(B) A new Section 11.18 shall be added to the Credit Agreement, as
follows:
"11.18 New Banks; Increases in Commitments of Banks. (a) In the
--------------------------------------------
event one or more Banks do not consent to an extension of the Termination Date
pursuant to Section 2.13, if no Event of Default or Unmatured Event of Default
has occurred and is continuing, Borrower may within five days of Borrower's
receipt of notice of such failure to so extend notify the Administrative Agent
and the Banks (a "Commitment Replacement Notice") that (i) it desires to add one
or more additional lenders to the Banks hereunder having aggregate Commitments
not exceeding the Commitment of the Bank(s) which have not consented to an
extension, and/or (ii) with the consent of the relevant Bank, increase the
Commitment of any one or more of the Banks in an aggregate amount not exceeding
the Commitment of the Bank which has not consented to an extension of the
Termination Date; provided that the existing Bank(s) shall have the right on a
--------
pro rata basis based upon the then existing Commitments to increase their
respective Commitments to replace the terminated Commitments before any New Bank
may be added as a Bank hereunder. The Banks desiring to increase their
Commitments based upon the immediately preceding proviso must give notice to the
Administrative Agent of their intention to accept a greater Commitment within
five days of Borrower's Commitment Replacement Notice. Each Commitment
Replacement Notice shall identify each new lender (each a "New Bank") proposed
by Borrower to be added as a Bank and/or each existing Bank which has proposed
to increase its Commitment, the amount of its proposed Commitment and the
proposed effective date of its becoming a Bank hereunder or increasing its
Commitment, as applicable (which shall be the last day of all then current
Interest Periods if there are Eurodollar Advances then outstanding from the
Banks). Any
4
increase in the Commitment of a Bank shall be effective upon the receipt by the
Administrative Agent of a Commitment Increase Letter which shall identify the
proposed effective date (which shall be the last day of all then current
Interest Periods if there are Eurodollar Advances then outstanding from the
Banks). Each New Bank shall, with the consent of the Administrative Agent,
become a Bank hereunder for all purposes and to the same effect as if set forth
on the signature pages hereof, subject to its execution and delivery to the
Administrative Agent of at least one counterpart of this Agreement (which shall
be deemed to include all amendments thereto) and the execution and delivery by
the Administrative Agent and the Borrower of each such counterpart. Each Bank
expressly agrees that its obligations arising hereunder shall not be affected or
diminished by the addition or release of any other Bank hereunder, nor by any
election of the Administrative Agent not to authorize a lender to become a New
Bank.
(b) Following any Bank's or Banks' refusal to extend their
Commitments pursuant to Section 2.13 herein and/or any subsequent change in the
Commitments of the existing Banks or the addition of a New Bank, Schedule 1 of
this Agreement shall be deemed amended to reflect (i) the termination of the
non-extending Bank's Commitment; (ii) the addition of any New Bank; (iii) such
New Bank's Commitment; and (iv) any change to the Commitment of an existing
Bank.
(c) Following any Bank or Banks refusal to extend their Commitments
pursuant to Section 2.13 herein and any subsequent change in the Commitments of
the existing Banks or the addition of a New Bank, Borrower agrees to execute
such Notes as necessary to comply with the requirements of Sections 2.8 and 2.9
of this Agreement."
1.5 Modification of Schedules
-------------------------
(A) Schedule 1: Name of Banks and Commitments. Schedule 1 to the
----------------------------------------- ----------
Credit Agreement is hereby deleted in its entirety and replaced with Schedule 1
attached hereto.
1.6 Modification of Exhibits
------------------------
(A) Exhibit D; Addresses and Lending Offices of Banks. Exhibit D to
------------------------------------------------- ---------
the Credit Agreement is hereby amended by deleting said Exhibit D in its
---------
entirety and substituting in place thereof a new Exhibit D in the form attached
---------
to this Amendment.
1.7 Addition of Exhibits
--------------------
(A) Exhibit G; Form of Extension Request. The Credit Agreement is
------------------------------------
hereby amended by adding thereto a new Exhibit G in the form attached to this
---------
Amendment.
(B) Exhibit H; Form of Commitment Increase Letter. The Credit
---------------------------------------------
Agreement is hereby amended by adding thereto a new Exhibit H in the form
---------
attached to this Amendment.
5
2. CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon the
satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "First Amendment
Effective Date"):
(A) On or before the First Amendment Effective Date, Borrower shall
deliver to the Banks (or to the Administrative Agent for the Banks with
sufficient originally executed copies, where appropriate, for each Bank and its
counsel) the following, each, unless otherwise noted, dated the First Amendment
Effective Date:
(1) Favorable written opinions, dated the First Amendment Effective
Date, of the General Counsel or Assistant General Counsel of Borrower in the
form set out in Exhibit 1 hereto;
(2) Certificate of the Secretary or an Assistant Secretary of
Borrower dated the First Amendment Effective Date as to (i) the resolution of
the Board of Directors of Borrower or its Executive Committee in connection with
this Agreement, and (ii) the incumbency and signatures of the person authorized
to execute and deliver this Agreement and any other instrument, document or
other agreement required hereunder on the First Amendment Effective Date; and
(3) A certificate, signed by a vice president or assistant treasurer
of Borrower dated the First Amendment Effective Date certifying: (i) that since
December 31, 1997, there has been no change in the financial condition,
business, operations or properties of Borrower and its Subsidiaries taken as a
whole which constitutes a Material Change; and (ii) that no event has occurred
and is continuing or would result from the making of a Loan which constitutes or
would constitute an Event of Default or an Unmatured Event of Default.
(4) A Certificate of Good Standing in relation to Borrower issued by
the Secretary of the State of Delaware, dated not more than one month prior to
the First Amendment Effective Date.
(5) For each Bank that does not currently have in its possession a
Master Bid Note executed by Borrower for such Bank's benefit, a Master Bid Note,
referred to in Section 2.9 of the Credit Agreement, in an amount of each such
Bank's Commitment as set forth in Schedule 1 attached hereto duly executed by
Borrower.
(6) Executed copies of this Amendment.
(B) All fees and other amounts owed to the Administrative Agent, Co-
Administrative Agent, Syndication Agent, Documentation Agent, Arranger and any
Bank through the Effective Date (including Banks having no Commitment on and
after the Effective Date) by Borrower shall have been received by such person.
(C) On or before the First Amendment Effective Date, all corporate
and other proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by the
6
Administrative Agent, acting on behalf of Banks, and its counsel shall be
satisfactory in form and substance to the Administrative Agent and such counsel,
and the Administrative Agent and such counsel shall have received all such
counterpart originals or certified copies of such documents as the
Administrative Agent may reasonably request.
3. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Banks to enter into this Amendment and to amend the
Credit Agreement in the manner provided herein, Borrower represents and warrants
to each Bank that the following statements are true, correct and complete:
(A) Corporate Power and Authority. Borrower has all requisite
-----------------------------
corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement as amended by this Amendment (the "Amended Agreement").
(B) Authorization of Agreements. The execution and delivery of this
---------------------------
Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of Borrower.
(C) No Contravention. There is no charter, by-law, or capital stock
----------------
provision of Borrower and no provision of any indenture or material agreement,
written or oral, to which Borrower is a party or under which Borrower is
obligated, nor is there any statute, rule or regulation, or any judgment, decree
or order of any court or agency binding on Borrower which would be contravened
by the execution, delivery and performance of any provision, condition, covenant
or other term of this Amendment or the Amended Agreement.
(D) Binding Obligation. This Amendment and the Amended Agreement are
------------------
the legal, valid and binding obligation of Borrower, enforceable against it in
accordance with their terms, and any instrument or agreement required hereunder
or by the Amended Agreement, when executed and delivered, will be similarly
valid, binding and enforceable.
(E) Incorporation of Representations and Warranties From Credit
-----------------------------------------------------------
Agreement. The representations and warranties contained in Section 6 of the
---------
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
(F) Absence of Default. No event has occurred and is continuing or
------------------
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Unmatured Event of
Default.
4. MISCELLANEOUS
(A) Reference to and Effect on the Credit Agreement and the Other
Loan Documents.
7
(i) On and after the First Amendment Effective Date, each reference
in the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or
words of like import referring to the Credit Agreement, and each reference in
the other documents entered pursuant to the Credit Agreement to the "Credit
Agreement", "thereunder", "thereof" or words of like import referring to the
Credit Agreement shall mean and be a reference to the Amended Agreement.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other documents entered pursuant to the Credit Agreement shall
remain in full force and effect and are hereby ratified and confirmed.
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any provision
of, or operate as a waiver of any right, power or remedy of the Administrative
Agent or any Bank under, the Credit Agreement or any of the other Loan
Documents.
(B) Fees and Expenses. Borrower acknowledges that all costs, fees
-----------------
and expenses as described in subsection 11.14 of the Credit Agreement incurred
by the Arranger, the Administrative Agent and their counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of Borrower.
(C) Headings. Section and subsection headings in this Amendment are
--------
included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
(D) California Law. The interpretation, enforcement and effect of
--------------
this Agreement, the Loans and any agreements, contracts, indentures, documents
or instruments delivered in accordance herewith, shall be governed and
controlled in all respects by and construed according to the substantive laws of
the State of California, to the jurisdiction of whose courts the parties hereto
hereby agree to submit.
(E) Counterparts; Effectiveness. This Amendment may be executed in
---------------------------
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Section 1 hereof, the effectiveness of which is governed by
Section 2 hereof) shall become effective upon the execution of a counterpart
hereof by Borrower and Banks and receipt by Borrower and the Administrative
Agent of written or telephonic notification of such execution and authorization
of delivery thereof.
[Remainder of page intentionally left blank]
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
▇▇▇▇▇▇ ELECTRONICS
CORPORATION
By:______________________________________
Name:
Title:
S-1
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as
Administrative Agent and as a Bank
By:______________________________________
Name:
Title:
S-2
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK, as Syndication
Agent and a Bank
By:______________________________________
Name:
Title:
S-3
[RESERVED]
S-4
[RESERVED]
S-5
THE MITSUBISHI TRUST & BANKING
CORPORATION, NEW YORK BRANCH,
as a Bank
By:______________________________________
Name:
Title:
S-6
[RESERVED]
S-7
CREDIT LYONNAIS NEW YORK
BRANCH, as a Bank
By:______________________________________
Name:
Title:
S-8
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES,
as a Bank
By:______________________________________
Name:
Title:
S-9
THE FIRST NATIONAL BANK OF
CHICAGO, as a Bank
By:______________________________________
Name:
Title:
S-10
FIRST NATIONAL BANK OF
MARYLAND, as a Bank
By:______________________________________
Name:
Title:
S-11
THE FUJI BANK LIMITED LOS
ANGELES AGENCY, as a Bank
By:______________________________________
Name:
Title:
S-12
CITICORP USA, INC., as Co-Administrative
Agent and as a Bank
By:______________________________________
Name:
Title:
S-13
BANCA DI ROMA-SAN ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, as a Bank
By:______________________________________
Name:
Title:
▇-▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, as a Bank
By:______________________________________
Name:
Title:
S-15
[RESERVED]
S-16
[RESERVED]
S-17
[RESERVED]
S-18
CIBC, INC., as a Bank
By:______________________________________
Name:
Title:
S-19
BANKERS TRUST COMPANY, as a Bank
By:______________________________________
Name:
Title:
S-20
CREDIT SUISSE FIRST BOSTON, as a Bank
By:______________________________________
Name:
Title:
S-21
THE INDUSTRIAL BANK OF JAPAN,
LIMITED LOS ANGELES AGENCY, as a
Bank
By:______________________________________
Name:
Title:
S-22
SCHEDULE 1
----------
________________________________________________________________________________
Lender Commitment
------ ----------
--------------------------------------------------------------------------------
Citicorp USA, Inc. $53,000,000
--------------------------------------------------------------------------------
Bank of America National Trust and Savings Association $47,000,000
--------------------------------------------------------------------------------
The First National Bank of Chicago $25,000,000
--------------------------------------------------------------------------------
▇▇▇▇▇▇ Guaranty Trust Company of New York $17,500,000
--------------------------------------------------------------------------------
Bankers Trust Company $12,500,000
--------------------------------------------------------------------------------
Credit Suisse First Boston $12,500,000
--------------------------------------------------------------------------------
The Mitsubishi Trust & Banking Corporation, New York $12,500,000
Branch
--------------------------------------------------------------------------------
Banca Di Roma-San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ $ 8,750,000
--------------------------------------------------------------------------------
The Bank of New York $ 8,750,000
--------------------------------------------------------------------------------
CIBC, Inc. $ 8,750,000
--------------------------------------------------------------------------------
Credit Lyonnais New York Branch $ 8,750,000
--------------------------------------------------------------------------------
Deutsche Bank AG New York And/Or Cayman Islands Branches $ 8,750,000
--------------------------------------------------------------------------------
First National Bank of Maryland $ 8,750,000
--------------------------------------------------------------------------------
The Fuji Bank Limited Los Angeles Agency $ 8,750,000
--------------------------------------------------------------------------------
The Industrial Bank Of Japan, Limited Los Angeles Agency $ 8,750,000
--------------------------------------------------------------------------------
EXHIBIT ▇
▇▇▇▇▇▇ ELECTRONICS CORPORATION
REVOLVING CREDIT AGREEMENT
(364-DAY FACILITY)
--------------------------------------------------------------------------------
Bank Addresses
----
--------------------------------------------------------------------------------
Bank of America National Trust and ▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Savings Association, as ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Agency Management-Los Angeles #20529
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payment ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Senior Agency Administrative Officer
Agency Administrative Services #5596
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Bank of America National Trust and Domestic and Offshore Lending Office
Savings Association, as a Bank
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Senior Account Administrator
GPO-Domestic Account Administration #5693
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Vice President
Credit Products #5618
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-1
--------------------------------------------------------------------------------
▇▇▇▇▇▇ Guaranty Trust Company of Domestic and Offshore Lending Office:
New York
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notice for all Libor, DC, Base Rate
Borrowings and/or Repayments:
c/o ▇.▇. ▇▇▇▇▇▇ Services Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-2
-------------------------------------------------------------------------------
The Mitsubishi Trust & Banking Domestic and Offshore Lending Office:
Corporation, New York Branch
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Ming ▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Special Finance
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Lyonnais New York Branch Domestic and Offshore Lending Office:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Campellare
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-3
--------------------------------------------------------------------------------
Deutsche Bank AG New York Domestic and Offshore Lending Office:
And/Or Cayman Islands Branches
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-4
--------------------------------------------------------------------------------
The First National Bank of Chicago Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
First National Bank of Maryland Domestic and Offshore Lending Office:
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-5
--------------------------------------------------------------------------------
The Fuji Bank Limited Los Angeles Domestic and Offshore Lending Office:
Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Citicorp USA, Inc. Domestic and Offshore Lending Office:
Citibank, N.A.
▇/▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
Citibank, N.A.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Managing Director
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-6
--------------------------------------------------------------------------------
Banca Di Roma-San ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Francesco Barolo
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
First Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
The Bank of New York Domestic and Offshore Lending Office:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or 6742
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ or 6899
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-7
--------------------------------------------------------------------------------
CIBC, Inc. Domestic and Offshore Lending Office:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Bankers Trust Company Domestic and Offshore Lending Office:
One Bankers Trust ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
One Bankers Trust ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-8
--------------------------------------------------------------------------------
Credit Suisse First Boston Domestic and Offshore Lending Office:
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
The Industrial Bank Of Japan, Domestic and Offshore Lending Office:
Limited Los Angeles Agency
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ or 6345
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than Borrowing Notices and
Conversion/Continuation)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
--------------------------------------------------------------------------------
Exhibit D-9
EXHIBIT G
[FORM OF REQUEST FOR EXTENSION OF TERMINATION DATE]
[LETTERHEAD OF ▇▇▇▇▇▇ ELECTRONICS CORPORATION]
_____________________, 19___
BANKS PARTY TO THE CREDIT AGREEMENT
REFERRED TO BELOW
Ladies and Gentlemen
In accordance with Section 2.13 of the Revolving Credit Agreement
dated as of December 5, 1997 (as amended, the "Credit Agreement"; terms
defined therein being used herein as therein defined), among the
undersigned, the Banks parties thereto, Bank of America National Trust and
Savings Association as Administrative Agent, Citicorp USA, Inc. as Co-
Administrative Agent and ▇▇▇▇▇▇ Guaranty Trust Company of New York as
Syndication Agent, the undersigned hereby requests that you consent to
extension of the Termination Date to [INSERT DATE 364 DAYS AFTER CURRENT
TERMINATION DATE], or, if such date is not a Business Day, the next
preceding Business Day.
Please indicate your consent to such extension of the Termination
Date by signing the attached copy of this letter in the space provided
below and returning same to the Administrative Agent, if possible by
_____________, 19__ but, in any event, not later than ____________, 19___.
Very truly yours,
▇▇▇▇▇▇ ELECTRONICS
CORPORATION
By _________________________
Name:
Title:
The undersigned Lender, party to the Credit Agreement, consents
to the extension of the Termination Date as requested above.
[NAME OF BANK]
By _________________________
Name:
Title:
Exhibit G-1
EXHIBIT H
[FORM OF COMMITMENT INCREASE LETTER]
[LETTERHEAD OF ▇▇▇▇▇▇ ELECTRONICS CORPORATION]
__________, 199_
To Bank of America National Trust and Savings Association:
as Administrative Agent for the Banks party to the Credit Agreement
referred to below
_______________________
_______________________
Attention:_____________
Ladies and Gentlemen:
In accordance with Section 11.18(a) of the Credit Agreement, dated as
of December 5, 1997, (as amended, the "Credit Agreement"; terms defined therein
being used herein as therein defined), among the undersigned, the Banks parties
thereto, Bank of America National Trust and Savings Association as
Administrative Agent, Citicorp USA, Inc. as Co-Administrative Agent and ▇▇▇▇▇▇
Guaranty Trust Company of New York as Syndication Agent, the undersigned hereby
requests that you, the Administrative Agent and [NAME OF INCREASING BANK]
consent to the increase of [$____________] to [NAME OF INCREASING BANK]'S
Commitment which shall result in [NAME OF INCREASING BANK]'s net Commitment
equaling [$___________].
The undersigned hereby certifies, on behalf of Borrower that (i)
representations and warranties contained in Section 6 of the Credit Agreement
are true and accurate as though made on and as of the date hereof (except to the
extent any representation and warranty is expressly made as of a specific date,
in which case such representation and warranty shall be true and correct in all
material respects as of such specific date), and (ii) no event has occurred and
is continuing or would result from such increase in [INCREASING BANK]'s
Commitment which constitutes an Event of Default or an Unmatured Event of
Default under the Credit Agreement.
Exhibit H-1
Please indicate your consent to such increase of the commitment of
[NAME OF INCREASING BANK] by signing the attached copy of this letter in the
space provided below by __________, 199_ but, in any event, not later than
_______, 199_.
Very truly yours,
▇▇▇▇▇▇ ELECTRONICS CORPORATION
By________________________
Name:
Title:
The undersigned parties consent to the increase of [NAME OF INCREASING
BANK]'s Commitment as requested above.
Accepted this __ day [NAME OF INCREASING BANK]
of _________, 199_
By________________________
Name:
Title:
Acknowledged and Agreed:
Bank of America National Trust
and Savings Association
as Administrative Agent
By_______________________
Name:
Title:
Exhibit H-2
EXHIBIT 1
[▇▇▇▇▇▇ ELECTRONICS CORPORATION LETTERHEAD]
December 3, 1998
To: The Banks listed on Schedule A hereto;
Bank of America National Trust and
Savings Association, as Administrative
Agent, ▇▇▇▇▇▇ Guaranty Trust Company of
New York, as Syndication Agent; and
Citicorp USA, Inc. as Co-Administrative
Agent
Re: ▇▇▇▇▇▇ Electronics Corporation's First Amendment to
Revolving Credit Agreement (364-Day Facility)
---------------------------------------------
Ladies and Gentlemen:
I am the Assistant General Counsel of ▇▇▇▇▇▇ Electronics Corporation, a
Delaware corporation ("Borrower"), in connection with the First Amendment dated
as of December 3, 1998 (the "First Amendment") to the Revolving Credit Agreement
(364-Day Facility) dated as of December 5, 1997 (as so amended, "Credit
Agreement") by and among Borrower, the banks named therein (the "Banks"), Bank
of America National Trust and Savings Association, as administrative agent for
the Banks (in such capacity "Administrative Agent"), ▇▇▇▇▇▇ Guaranty Trust
Company of New York, as Syndication Agent, and Citicorp USA, Inc. as Co-
Administrative Agent. Capitalized terms not otherwise defined herein shall have
the meanings set forth in the Credit Agreement. This opinion is rendered to you
pursuant to Section 2(A)(1) of the First Amendment.
As Assistant General Counsel to Borrower, I have caused to be made such
legal and factual examinations and inquiries, including an examination of
originals or copies, certified or otherwise identified to my satisfaction as
authentic, of such corporate records, agreements, instruments and other
documents as I have deemed necessary or appropriate for the purposes of this
opinion. I have caused to be obtained such certificates and other assurances
(copies of which have been delivered to you) from public officials and officers
and other employees of Borrower as I considered necessary or appropriate for the
purpose of rendering this opinion. I have assumed the genuineness of all
signatures (except that of Borrower), the authenticity of all documents
submitted to us as originals, and the conformity with the originals of all
documents submitted to me as copies.
Subject to the limitations herein set forth, I am opining herein as to the
effect on the subject transaction only of United States federal law, the laws of
the State of California and the General Corporation Law of the State of
Delaware. I am licensed to practice law in the State of California. I assume no
responsibility as to the applicability to the subject transaction or the effect
thereon of the laws of any other jurisdiction.
Exhibit 1 - 1
Based upon the foregoing and in reliance thereon, and subject to the
qualifications, limitations, and assumptions set forth herein, I am of the
opinion that, as of the date hereof:
1. Borrower is a corporation duly incorporated and validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own and lease its properties and conduct its
business as presently owned and conducted.
2. Borrower is duly qualified to do business as a foreign corporation in
good standing in the State of California.
3. Borrower has full corporate power and authority to borrow the sums
provided for in the Credit Agreement, to execute and deliver the First Amendment
and to perform its obligations under the Credit Agreement and the First
Amendment.
4. All corporate action required to be taken by Borrower for the
authorization, execution and delivery of the First Amendment by Borrower and the
performance by Borrower of its obligations thereunder and under the Credit
Agreement has been duly taken.
5. The officer of Borrower executing the First Amendment is duly and
properly in office and duly authorized to execute the same.
6. The First Amendment and Credit Agreement are valid and binding
agreements of Borrower, enforceable in accordance with their terms, subject to
the limitations, qualifications, exceptions and assumptions set forth below.
7. To my knowledge, after causing to be conducted such legal examination
and inquiries and causing to be conducted such discussions with and obtaining
such certificates or other confirmations from officers and other employees of
Borrower as I considered appropriate in the circumstances, no consent,
permission, authorization order or license of any United States federal or
California governmental authority is necessary in connection with the execution
and delivery of the First Amendment by Borrower and Borrower's performance of
its obligations under the First Amendment and the Credit Agreement.
8. There is no provision of the Certificate of Incorporation or the By-
laws of Borrower which would be contravened by the execution and delivery of the
First Amendment by Borrower or by the performance by Borrower of its obligations
under the First Amendment and the Credit Agreement.
9. Borrower is not an "investment company" as defined in the Investment
Company Act of 1940, as amended.
10. To my knowledge, after causing to be conducted such legal and factual
examination and inquiries and causing to be conducted such discussions with and
obtaining such certificates or other confirmations from officers and other
employees of Borrower as I considered appropriate in the circumstances, no
consent or approval of any trustee or holder of any material indebtedness of
Borrower is necessary in connection with the execution and delivery of the First
Amendment by Borrower and Borrower's performance of its obligations under the
First Amendment and the Credit Agreement.
Exhibit 1 - 2
11. There is no provision of any indenture or material agreement for
borrowed money to which Borrower is a party or under which Borrower is
obligated, and of which I am aware, after causing to be conducted such legal and
factual examinations and inquiries and causing to be conducted such discussion
with and obtaining such certificates or other confirmations from officers and
other employees of Borrower as I considered appropriate in the circumstances
which would be contravened by the execution and delivery of the First Amendment
by Borrower or by the performance by Borrower of its obligations under the First
Amendment and the Credit Agreement.
12. To my knowledge, after causing to be conducted such legal and factual
examination and inquiries and causing to be conducted such discussions with and
obtaining such certificates or other confirmations from officers and other
employees of Borrower as I considered appropriate in the circumstances, there is
no judgment, decree or order of any court or governmental agency binding on
Borrower which would be contravened by the execution and delivery of the First
Amendment and the Notes by Borrower and Borrower's performance of its
obligations under the First Amendment, the Credit Agreement and the Notes.
13. To my knowledge, after causing to be conducted such legal and factual
examinations and inquiries and obtaining certificates or other confirmations
from officers and employees of Borrower as I considered appropriate in the
circumstances, except as set forth in Attachment 1 hereto, there is no claim,
suit, action or proceeding pending or threatened against Borrower before any
court or governmental agency in which there is a specific claim, including
environmental matters, in excess of $75,000,000.
The opinion expressed in paragraph 6 is subject to the following
limitations, qualifications, exceptions and assumptions:
(a) the enforcement of the First Amendment, the Credit Agreement and
the Notes may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws or by equitable principles relating to or
limiting the rights or creditors generally;
(b) the use of the term enforceable shall not imply any opinion as to
the availability of equitable remedies;
(c) I advise you that a California court may not strictly enforce
certain covenants contained in the First Amendment and the Credit Agreement
or allow acceleration of the maturity of the indebtedness thereunder if it
concludes that such enforcement or acceleration would be unreasonable under
the then existing circumstances. I do believe, however, that subject to the
limitations expressed elsewhere in this opinion, enforcement or
acceleration would be available if an Event of Default occurs as a result
of a material breach of a material covenant contained in the First
Amendment or the Credit Agreement. Further, certain rights, remedies and
waivers contained in the Credit Agreement may be limited or rendered
ineffective by applicable California laws or judicial decisions governing
such provisions, but such laws or judicial decisions do not render the
Credit Agreement invalid as a whole;
Exhibit 1 - 3
(d) The effect of California court decisions, invoking statutes or
principles of equity, which have held that certain covenants and provisions
of agreements are unenforceable where (i) the breach of such covenants or
provisions imposes restrictions or burdens upon the debtor, including the
acceleration of indebtedness due under debt instruments, and it cannot be
demonstrated that the enforcement of such restrictions or burdens is
reasonably necessary for the protection of the creditor, or (ii) the
creditors enforcement of such covenants or provisions under the
circumstances would violate the creditors implied covenant of good faith
and fair dealing;
(e) The unenforceability under certain circumstances under California
or federal law or court decisions, of provisions expressly or by
implication waiving broadly or vaguely stated rights, unknown future
rights, defenses to obligations or rights granted by law, where such
waivers are against public policy or prohibited by laws;
(f) The unenforceability under certain circumstances of provisions to
the effect that rights or remedies are not exclusive, that every right or
remedy is cumulative and may be exercised in addition to or with any other
right or remedy, that election of a particular remedy or remedies does not
preclude recourse to one or more other remedies or that failure to exercise
or delay in exercising rights or remedies will not operate as a waiver of
any such right or remedy;
(g) The effect of Section 1717 of the California Civil Code, which
provides that, where a contract permits one party to the contract to
recover attorneys' fees, the prevailing party in any action to enforce any
provision of the contract shall be entitled to recover its reasonable
attorneys' fees;
(h) The unenforceability under certain circumstances of provisions
indemnifying a party against liability for its own wrongful or negligent
acts or where such indemnification is contrary to the public policy or
prohibited by laws; and
(i) The enforceability under certain circumstances of provisions
imposing penalties, forfeitures, late payment charges or any increase in
interest rate upon delinquency in payment or the occurrence of a default.
To the extent that the obligations of Borrower may be dependent on such
matters, I assume for purposes of this opinion that each of the Banks is duly
incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization; that each of the Banks is
duly qualified to engage in the transactions covered by this opinion; that the
First Amendment and the Credit Agreement have been duly authorized, executed and
delivered by each of the Banks and that the First Amendment and the Credit
Agreement Constitute the valid and binding obligation of each of the Banks,
enforceable in accordance with their terms; and that each of the Banks has the
requisite corporate or organizational and legal power and authority to own its
properties, to carry on its business as now being conducted and to perform its
obligations under the First Amendment and the Credit Agreement, including,
without limitation, to make the loans under the Credit Agreement. I am not
expressing any opinion as to the effect of or the compliance by any Bank with
any state or
Exhibit 1 - 4
federal laws or regulations applicable to the transactions because of the nature
of its respective business.
This opinion is rendered to the Banks and the Administrative Agent and is
solely for their benefit in connection with the above transaction. This opinion
may not be relied upon by the Banks or Administrative Agent for any other
purpose, or furnished to, quoted to or relied upon by any other person, firm or
corporation for any purpose without prior written consent.
Very truly yours,
[Assistant General Counsel]
Exhibit 1 - 5