CONFORMED COPY
(Through 1st Amendment)
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THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
among
XXXX MICROPRODUCTS INC.
and
THE BANKS NAMED HEREIN
and
CALIFORNIA BANK & TRUST,
as Administrative Agent for the Banks
November 12, 1998
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CREDIT AGREEMENT
Table Of Contents
Page
SECTION I. INTERPRETATION.............................................................................2
1.01. Definitions....................................................................................2
1.02. GAAP...........................................................................................2
1.03. Headings.......................................................................................2
1.04. Plural Terms...................................................................................2
1.05. Time...........................................................................................2
1.06. Governing Law..................................................................................2
1.07. Construction...................................................................................2
1.08. Calculation of Interest and Fees...............................................................2
1.09. Other Interpretive Provisions..................................................................3
SECTION II. CREDIT FACILITIES..........................................................................3
2.01. Revolving Loan Facility........................................................................3
2.02. Amount Limitations, Commitment Reductions, Etc.................................................6
2.03. Fees...........................................................................................7
2.04. Prepayments....................................................................................8
2.05. Other Payment Terms............................................................................9
2.06. Notes and Interest Account....................................................................10
2.07. Loan Funding..................................................................................10
2.08. Pro Rata Treatment............................................................................11
2.09. Change of Circumstances.......................................................................12
2.10. Taxes on Payments.............................................................................14
2.11. Funding Loss Indemnification..................................................................16
2.12. Security......................................................................................16
SECTION III. CONDITIONS PRECEDENT......................................................................17
3.01. Conditions Precedent to Initial Revolving Loans...............................................17
3.02. Conditions Precedent to Each Credit Event.....................................................17
3.03. Covenant to Deliver...........................................................................18
SECTION IV. REPRESENTATIONS AND WARRANTIES............................................................18
4.01. Borrower's Representations and Warranties.....................................................18
4.02. Reaffirmation.................................................................................23
SECTION V. COVENANTS.................................................................................23
5.01. Affirmative Covenants.........................................................................23
5.02. Negative Covenants............................................................................26
SECTION VI. DEFAULT...................................................................................29
6.01. Events of Default.............................................................................29
6.02. Remedies......................................................................................30
SECTION VII. THE AGENTS AND RELATIONS AMONG BANKS......................................................31
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Table Of Contents
(continued)
Page
7.01. Appointment, Powers and Immunities............................................................31
7.02. Reliance by Agents............................................................................31
7.03. Defaults......................................................................................32
7.04. Indemnification...............................................................................32
7.05. Non-Reliance..................................................................................32
7.06. Resignation or Removal of Administrative Agent................................................33
7.07. Resignation or Removal of Collateral Agent....................................................33
7.08. Agents in their Individual Capacity...........................................................34
7.09. Co-Agents.....................................................................................34
SECTION VIII. MISCELLANEOUS.............................................................................34
8.01. Notices.......................................................................................34
8.02. Expenses......................................................................................35
8.03. Indemnification...............................................................................36
8.04. Waivers; Amendments...........................................................................36
8.05. Successors and Assigns........................................................................37
8.06. Setoff; Security Interest.....................................................................40
8.07. No Third Party Rights.........................................................................40
8.08. Partial Invalidity............................................................................40
8.09. Arbitration...................................................................................41
8.10. Jury Trial....................................................................................42
8.11. Counterparts..................................................................................42
SECTION IX. EFFECTIVE DATE OF RESTATED CREDIT AGREEMENT...............................................43
9.01. Effective Date................................................................................43
9.02. Loans Under Existing Credit Agreement.........................................................43
9.03. Effect........................................................................................43
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Table Of Contents
(continued)
Page
SCHEDULES
I Banks (Preamble)
II Pricing Grid
1.01 Definitions (1.01)
3.01 Effective Date Conditions Precedent
4.01(g) Material Litigation
4.01(q) Subsidiaries
5.01(j) Documents to be Delivered by Borrower on or Prior
to the Tenex Data Acquisition Effective Date
EXHIBITS
A Notice of Revolving Loan Borrowing (2.01(b))
B Notice of Revolving Loan Conversion (2.01(d))
C Notice of Revolving Loan Interest Period Selection (2.01(e))
D Revolving Loan Note (2.07(a))
E Third Amended and Restated Security Agreement (2.13(a), 9.03)
F Third Amended and Restated Pledge Agreement (2.13(a), 9.03)
G Xxxx Canada Guaranty (2.13(a))
H Xxxx Canadian Pledge Agreement (2.13(b))
I Xxxx-Tenex Guaranty (2.13(b))
X Xxxx-Tenex Security Agreement (2.13(b))
K Borrowing Base Certificate (5.01(a))
L Assignment Agreement (8.05(c))
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THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT (this "Restated Credit
Agreement"), dated as of November 12, 1998, is entered into by and among:
(1) XXXX MICROPRODUCTS INC., a California corporation
("Borrower");
(2) Each of the financial institutions from time to time
listed in Schedule I hereto, as amended from time to time (such
financial institutions to be referred to herein collectively as the
"Banks");
(3) CALIFORNIA BANK & TRUST (formerly known as Sumitomo Bank
of California), a California banking corporation ("CB&T"), as
administrative agent for the Banks (in such capacity, "Administrative
Agent");
(4) Prior to the First Amendment Effective Date,
Administrative Agent, as collateral agent for the Banks (in such
capacity, "Collateral Agent"), and on and after the First Amendment
Effective Date, UNION BANK OF CALIFORNIA, N.A., a national banking
association, as Collateral Agent; and
(5) COMERICA BANK-CALIFORNIA, a California banking
corporation, as co-agent for the Banks.
RECITALS
A. Borrower, Administrative Agent and the Banks are parties to a Second
Amended and Restated Credit Agreement dated as of May 23, 1995 (as amended to
the date hereof, the "Existing Credit Agreement"), pursuant to which the Banks
have provided to Borrower (i) a revolving line of credit facility in the
principal amount of $100,000,000 and (ii) a letter of credit sub-facility in the
amount of $10,000,000 (collectively, the "Existing Credit Facility").
B. Borrower has requested Administrative Agent and the Banks to amend
the Existing Credit Agreement so as to (i) increase the revolving line of credit
facility, (ii) eliminate the letter of credit sub-facility and (iii) make
certain other changes.
C. Administrative Agent and the Banks are willing so to amend the
Existing Credit Agreement upon the terms and subject to the conditions set forth
herein. For convenience of reference, the parties hereto wish to restate the
Existing Credit Agreement as so amended in its entirety.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual
covenants contained herein, the parties hereto hereby agree that the Existing
Credit Agreement shall be amended and restated as of the date hereof to read in
its entirety as follows:
SECTION I. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Restated Credit
Agreement or any other Credit Document, each term set forth in Schedule 1.01,
when used in this Restated Credit Agreement or any other Credit Document, shall
have the respective meaning given to that term in Schedule 1.01 or in the
provision of this Restated Credit Agreement or other Credit Document referenced
in Schedule 1.01.
1.02. GAAP. Unless otherwise indicated in this Restated Credit
Agreement or any other Credit Document, all accounting terms used in this
Restated Credit Agreement or any other Credit Document shall be construed, and
all accounting and financial computations hereunder or thereunder shall be
computed, in accordance with GAAP. If GAAP changes during the term of this
Restated Credit Agreement such that any covenants contained herein would then be
calculated in a different manner or with different components, Borrower, the
Banks and the Agents agree to negotiate in good faith to amend this Restated
Credit Agreement in such respects as are necessary to conform those covenants as
criteria for evaluating Borrower's financial condition to substantially the same
criteria as were effective prior to such change in GAAP; provided, however,
that, until Borrower, the Banks and the Agents so amend this Restated Credit
Agreement, all such covenants shall be calculated in accordance with GAAP as in
effect immediately prior to such change.
1.03. Headings. Headings in this Restated Credit Agreement and each of
the other Credit Documents are for convenience of reference only and are not
part of the substance hereof or thereof.
1.04. Plural Terms. All terms defined in this Restated Credit Agreement
or any other Credit Document in the singular form shall have comparable meanings
when used in the plural form and vice versa.
1.05. Time. All references in this Restated Credit Agreement and each
of the other Credit Documents to a time of day shall mean San Francisco,
California time, unless otherwise indicated.
1.06. Governing Law. This Restated Credit Agreement and each of the
other Credit Documents shall be governed by and construed in accordance with the
laws of the State of California without reference to conflicts of law rules.
1.07. Construction. This Restated Credit Agreement is the result of
negotiations among, and has been reviewed by, Borrower, each Bank, each Agent
and their respective counsel. Accordingly, this Restated Credit Agreement shall
be deemed to be the product of all parties hereto, and no ambiguity shall be
construed in favor of or against Borrower, any Bank or any Agent.
1.08. Calculation of Interest and Fees. All calculations of interest
and fees under this Restated Credit Agreement and the other Credit Documents for
any period (a) shall include the
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first day of such period and exclude the last day of such period and (b) shall
be calculated on the basis of a year of 360 days for actual days elapsed.
1.09. Other Interpretive Provisions. References in this Restated Credit
Agreement to "Recitals," "Sections," "Paragraphs," "Subparagraphs," "Exhibits"
and "Schedules" are to recitals, sections, paragraphs, subparagraphs, exhibits
and schedules herein and hereto unless otherwise indicated. References in this
Restated Credit Agreement and each of the other Credit Documents to any
document, instrument or agreement (a) shall include all exhibits, schedules and
other attachments thereto, (b) shall include all documents, instruments or
agreements issued or executed in replacement thereof, and (c) shall mean such
document, instrument or agreement, or replacement or predecessor thereto, as
amended, modified and supplemented from time to time and in effect at any given
time. The words "hereof," "herein" and "hereunder" and words of similar import
when used in this Restated Credit Agreement or any other Credit Document shall
refer to this Restated Credit Agreement or such other Credit Document, as the
case may be, as a whole and not to any particular provision of this Restated
Credit Agreement or such other Credit Document, as the case may be. The words
"include" and "including" and words of similar import when used in this Restated
Credit Agreement or any other Credit Document shall not be construed to be
limiting or exclusive.
SECTION II. CREDIT FACILITIES.
2.01. Revolving Loan Facility.
(a) Revolving Loan Availability. Subject to the terms and
conditions of this Restated Credit Agreement (including the amount
limitations set forth in Paragraph 2.02 and the conditions set forth in
Section III), each Bank severally agrees to advance to Borrower from
time to time during the period beginning on the Effective Date and
ending on May 31, 2000 (the "Revolving Loan Maturity Date") such loans
as Borrower may request under this Paragraph 2.01 (individually, a
"Revolving Loan"); provided, however, that the (i) aggregate principal
amount of all Revolving Loans made by such Bank at any time outstanding
shall not exceed such Bank's Revolving Loan Commitment at such time and
(ii) the aggregate principal amount of all Revolving Loans made by all
Banks at any time outstanding shall not exceed the Total Revolving Loan
Commitment at such time. All Revolving Loans shall be made on a pro
rata basis by the Banks in accordance with their respective
Proportionate Shares, with each Revolving Loan Borrowing to be
comprised of a Revolving Loan by each Bank equal to such Bank's
Proportionate Share of such Revolving Loan Borrowing. Except as
otherwise provided herein, Borrower may borrow, repay and reborrow
Revolving Loans until the Revolving Loan Maturity Date.
(b) Notice of Revolving Loan Borrowing. Borrower shall request
each Revolving Loan Borrowing by delivering to Administrative Agent an
irrevocable written notice in the form of Exhibit A, appropriately
completed (a "Notice of Revolving Loan Borrowing"), which specifies,
among other things:
(i) The principal amount of the requested Revolving
Loan Borrowing;
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(ii) Whether the requested Revolving Loan Borrowing
is to consist of (A) Revolving Loans which bear interest as
provided in clause (i) of Subparagraph 2.01(c) (individually,
a "Revolving Prime Rate Loan") or (B) Revolving Loans which
bear interest as provided in clause (ii) of Subparagraph
2.01(c) (individually, a "Revolving LIBOR Loan");
(iii) If the requested Revolving Loan Borrowing is to
consist of Revolving LIBOR Loans, the initial Interest Period
selected by Borrower for such Revolving Loans in accordance
with Subparagraph 2.01(e); and
(iv) The date of the requested Revolving Loan
Borrowing, which shall be a Business Day.
Borrower shall give each Notice of Revolving Loan Borrowing to
Administrative Agent at least three (3) Business Days before the date
of the requested Revolving Loan Borrowing in the case of a Revolving
Loan Borrowing consisting of Revolving LIBOR Loans and at least one (1)
Business Day before the date of the requested Revolving Loan Borrowing
in the case of a Revolving Loan Borrowing consisting of Revolving Prime
Rate Loans. Each Notice of Revolving Loan Borrowing shall be delivered
by first-class mail or facsimile to Administrative Agent at the office
or facsimile number and during the hours specified in Paragraph 8.01;
provided, however, that Borrower shall promptly deliver to
Administrative Agent the original of any Notice of Revolving Loan
Borrowing initially delivered by facsimile. Each Revolving Loan
Borrowing consisting of Revolving Prime Rate Loans shall be in the
minimum amount of $100,000 or an integral multiple of $100,000 in
excess thereof. Each Revolving Loan Borrowing consisting of Revolving
LIBOR Loans shall be in the minimum amount of $500,000 or an integral
multiple of $100,000 in excess thereof. Administrative Agent shall
notify each Bank no later than 5:00 p.m. California time on the date of
receipt of each such Notice of Revolving Loan Borrowing of the contents
thereof and of the amount and Type of each Revolving Loan to be made by
such Bank as part of the requested Revolving Loan Borrowing.
(c) Revolving Loan Interest Rates. Borrower shall pay interest
on the unpaid principal amount of each Revolving Loan from the date of
such Revolving Loan until the maturity thereof, at one of the following
rates per annum:
(i) During such periods as such Revolving Loan is a
Revolving Prime Rate Loan, at a rate per annum equal to the
Prime Rate, such rate to change from time to time as the Prime
Rate shall change; and
(ii) During such periods as such Revolving Loan is a
Revolving LIBOR Loan, at a rate per annum equal at all times
during each Interest Period for such Revolving Loan to the
LIBO Rate for such Interest Period plus the Applicable Margin
therefor, such rate to change from time to time during such
Interest Period as the Applicable Margin shall change;
4
provided, however, that each of the rates set forth in clauses (i) and
(ii) of this Subparagraph 2.01(c) shall be increased by one percent
(1.00%) per annum on the date an Event of Default occurs and shall
continue at such increased rate unless and until such Event of Default
is waived in accordance with this Restated Credit Agreement. All
Revolving Loans in each Revolving Loan Borrowing shall, at any given
time prior to maturity, bear interest at one, and only one, of the
above rates.
(d) Conversion of Revolving Loans. Borrower may convert all
Revolving Loans in any Revolving Loan Borrowing consisting of Revolving
Prime Rate Loans into Revolving LIBOR Loans and all Revolving Loans in
any Revolving Loan Borrowing consisting of Revolving LIBOR Loans into
Revolving Prime Rate Loans; provided, however, that any conversion of
Revolving LIBOR Loans into Revolving Prime Rate Loans shall be made on,
and only on, the last day of an Interest Period for such Revolving
LIBOR Loans. Borrower shall request such a conversion by an irrevocable
written notice to Administrative Agent in the form of Exhibit B,
appropriately completed (a "Notice of Revolving Loan Conversion"),
which specifies, among other things:
(i) The Revolving Loan Borrowing which is to be
converted;
(ii) The Type of Loans into which such Revolving
Loans are to be converted;
(iii) If such Revolving Loans are to be converted
into Revolving LIBOR Loans, the initial Interest Period
selected by Borrower for such Revolving Loans in accordance
with Subparagraph 2.01(e); and
(iv) The date of the requested conversion, which
shall be a Business Day.
Borrower shall give each Notice of Revolving Loan Conversion to
Administrative Agent at least three (3) Business Days before the date
of the requested conversion in the case of a conversion into Revolving
LIBOR Loans and at least one (1) Business Day before the date of the
requested conversion in the case of a conversion into Revolving Prime
Rate Loans. Each Notice of Revolving Loan Conversion shall be delivered
by first-class mail or facsimile to Administrative Agent at the office
or to the facsimile number and during the hours specified in Paragraph
8.01; provided, however, that Borrower shall promptly deliver to
Administrative Agent the original of any Notice of Revolving Loan
Conversion initially delivered by facsimile. Administrative Agent shall
notify each Bank no later than 5:00 p.m. California time on the date of
receipt of each such Notice of Revolving Loan Conversion of the
contents thereof and of the amount and Type of each Revolving Loan to
be converted by such Bank as part of the requested Revolving Loan
Conversion.
(e) Revolving LIBOR Loan Interest Periods.
(i) The initial and each subsequent Interest Period
selected by Borrower for a Revolving LIBOR Loan shall be one
(1), two (2), three (3) or six
5
(6) months; provided, however, that (A) any Interest Period
which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day unless
such next Business Day falls in another calendar month, in
which case such Interest Period shall end on the immediately
preceding Business Day; (B) any Interest Period which begins
on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end
on the last Business Day of a calendar month; and (C) no
Interest Period shall end after the Revolving Loan Maturity
Date.
(ii) Borrower shall notify Administrative Agent by an
irrevocable written notice in the form of Exhibit C,
appropriately completed (a "Notice of Revolving Loan Interest
Period Selection"), at least three (3) Business Days prior to
the last day of each Interest Period for Revolving LIBOR Loans
of the Interest Period selected by Borrower for the next
succeeding Interest Period for such Revolving LIBOR Loans.
Each Notice of Revolving Loan Interest Period Selection shall
be given by first-class mail or facsimile to the office or the
facsimile number and during the hours specified in Paragraph
8.01; provided, however, that Borrower shall promptly deliver
to Administrative Agent the original of any Notice of
Revolving Loan Interest Period Selection initially delivered
by facsimile. If Borrower fails to notify Administrative Agent
of the next Interest Period for Revolving LIBOR Loans in
accordance with this Subparagraph 2.01(e), such Revolving
Loans shall automatically convert to Revolving Prime Rate
Loans on the last day of the current Interest Period therefor.
Administrative Agent shall notify each Bank no later than 5:00
p.m. California time on the date of receipt of each such
Notice of Revolving Loan Interest Period Selection of the
contents thereof and of the Interest Period selected for each
Revolving Loan.
(f) Scheduled Revolving Loan Payments. Borrower shall repay to
each Bank on the Revolving Loan Maturity Date the unpaid principal
amount of each Revolving Loan made by such Bank. Borrower shall pay
accrued interest on the unpaid principal amount of each Revolving Loan
(A) in the case of a Revolving Prime Rate Loan, on the last Business
Day in each month, (B) in the case of a Revolving LIBOR Loan, on the
last day of each Interest Period therefor (and, if any such Interest
Period is longer than three (3) months, every three (3) months); and
(C) in the case of all Revolving Loans, upon prepayment (to the extent
thereof) and at maturity.
(g) Purpose. Borrower shall use the proceeds of the Revolving
Loans made by the Banks on or after the Effective Date (i) to refinance
the loans outstanding under the Existing Credit Agreement on the
Effective Date and (ii) for Borrower's working capital and general
corporate needs (including acquisitions approved by the Banks from time
to time in their sole discretion).
2.02. Amount Limitations, Commitment Reductions, Etc.
6
(a) Borrowing Base.
(i) The aggregate principal amount of all Revolving
Loans outstanding at any time shall not exceed an amount (the
"Borrowing Base") equal to the lesser of:
(A) The Total Revolving Loan Commitment at
such time; and
(B) The sum at such time of:
(1) eighty percent (80%) of
Eligible Accounts; and
(2) The lesser of (y) thirty five
percent (35%) of Eligible Inventory and (z)
$40,000,000.
(ii) For the purposes of this Restated Credit
Agreement, the Borrowing Base on any date of determination
shall be presumed to be the Borrowing Base determined pursuant
to the most recent of (A) the latest Borrowing Base
Certificate delivered by Borrower prior to such date of
determination and (B) the latest audit conducted by or on
behalf of any Agent or any Bank prior to such date of
determination.
(b) Reduction or Cancellation of Commitments. Borrower may,
upon three (3) Business Days written notice to Administrative Agent,
permanently reduce the Total Revolving Loan Commitment by the amount of
One Million Dollars ($1,000,000) or an integral multiple of One Million
Dollars ($1,000,000) in excess thereof or cancel the Total Revolving
Loan Commitment in its entirety; provided, however, that:
(i) Borrower may not reduce the Total Revolving Loan
Commitment prior to the Revolving Loan Maturity Date, if,
after giving effect to such reduction, the aggregate principal
amount of all Revolving Loans then outstanding would exceed
the Total Revolving Loan Commitment; and
(ii) Borrower may not cancel the Total Revolving Loan
Commitment prior to the Revolving Loan Maturity Date, if,
after giving effect to such cancellation, any Revolving Loans
would then remain outstanding.
(c) Effect of Commitment Reductions. From the effective date
of any reduction of the Total Revolving Loan Commitment, the Revolving
Loan Commitment Fees payable pursuant to Subparagraph 2.03(b) shall be
computed on the basis of the Total Revolving Loan Commitment as so
reduced. Once reduced or cancelled, the Total Revolving Loan Commitment
may not be increased or reinstated without the prior written consent of
all Banks. Any reduction of the Total Revolving Loan Commitment
pursuant to this Paragraph 2.02 shall be applied to reduce the Banks'
respective Revolving Loan Commitments pro rata according to their
respective Proportionate Shares at the time of such reduction.
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2.03. Fees.
(a) Agent's Fee. Borrower shall pay to Administrative Agent
and the co-agents, for their own account, agent's fees in the amounts
and at the times set forth in the Agent's Fee Letter.
(b) Revolving Loan Commitment Fees. Borrower shall pay to
Administrative Agent, for the benefit of the Banks as provided in
clause (iii) of Subparagraph 2.08(a), nonrefundable commitment fees
(the "Revolving Loan Commitment Fees") of seventeen and one-half basis
points (0.175%) per annum on the daily average Total Unused Revolving
Loan Commitment for the period beginning on the Effective Date and
ending on the Revolving Loan Maturity Date. Borrower shall pay the
Revolving Loan Commitment Fees in arrears on the last Business Day in
each February, May, August and November (commencing November 30, 1998)
and on the Revolving Loan Maturity Date (or if the Total Revolving Loan
Commitment is cancelled on a date prior to the Revolving Loan Maturity
Date, on such prior date.
(c) Fee on Increased Commitment. Borrower shall pay to
Administrative Agent, for the benefit of the Banks as provided in
clause (iii) of Subparagraph 2.08(a), a one time nonrefundable fee on
the increased commitment of $75,000 (the "Fee on Increased
Commitment"). Borrower shall pay the Fee on Increased Commitment on the
Effective Date.
2.04. Prepayments.
(a) Terms of all Prepayments. Upon the prepayment of any
Revolving Loan (whether such prepayment is an optional prepayment under
Subparagraph 2.04(b), a mandatory prepayment required by Subparagraph
2.04(c) or a mandatory prepayment required by any other provision of
this Restated Credit Agreement or the other Credit Documents,
including, without limitation, a prepayment upon acceleration),
Borrower shall pay to the Bank which made such Revolving Loan (i) all
accrued interest to the date of such prepayment on the amount prepaid,
and (ii) if such prepayment is the prepayment of a Revolving LIBOR Loan
on a day other than the last day of an Interest Period for such
Revolving LIBOR Loan, all amounts payable to such Bank pursuant to
Paragraph 2.11.
(b) Optional Prepayments. At its option, Borrower may, upon
one (1) Business Day notice to Administrative Agent, prepay the
Revolving Loans in any Revolving Loan Borrowing in part, in an
aggregate principal amount of $100,000 or more, or in whole.
(c) Mandatory Prepayments. If, at any time, the aggregate
principal amount of all Revolving Loans then outstanding exceeds the
Borrowing Base at such time, Borrower shall immediately prepay
Revolving Loans in an aggregate principal amount equal to such excess.
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(d) Application of Principal Prepayments. If no Event of
Default has occurred and is continuing, all prepayments which are
applied to reduce the principal amount of Revolving Loans shall be
applied to Revolving Loans as directed by Borrower. If Borrower fails
to direct the application of any such principal prepayments or if an
Event of Default has occurred and is continuing, such principal
prepayments shall be applied first to Revolving Loan Borrowings
consisting of Revolving Prime Rate Loans and then to Revolving Loan
Borrowings consisting of Revolving LIBOR in chronological order of
maturity.
2.05. Other Payment Terms.
(a) Place and Manner. Borrower shall make all payments due to
each Bank hereunder by payments to Administrative Agent, for the
account of such Bank and such Bank's Applicable Lending Office, at
Administrative Agent's office, located at the address specified in
Subparagraph 8.01(a), in lawful money of the United States and in same
day or immediately available funds not later than 10:00 a.m. on the
date due. Amounts received after 10:00 a.m. shall be deemed to have
been received on the next Business Day. Administrative Agent shall
promptly disburse to each Bank no later than 1:00 p.m. California time
on the date of such receipt each such payment received by
Administrative Agent for such Bank. Borrower hereby requests, directs
and authorizes Administrative Agent to effect the payment of all
regularly scheduled principal, interest and fee payments payable by
Borrower under this Restated Credit Agreement or any other Credit
Document and all fees and expenses payable by Borrower pursuant to
Paragraph 8.02 by debiting any deposit account maintained by Borrower
with CB&T for the amounts thereof when due.
(b) Date. Whenever any payment due hereunder shall fall due on
a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall be included
in the computation of interest or fees, as the case may be.
(c) Late Payments. If any amounts required to be paid by
Borrower under this Restated Credit Agreement or the other Credit
Documents (including, without limitation, principal or interest payable
on any Revolving Loan, any fees or other amounts) remain unpaid after
such amounts are due, Borrower shall pay interest on the aggregate,
outstanding balance of such amounts from the date due until those
amounts are paid in full at a per annum rate equal to the Prime Rate
plus two percent (2.00%), such rate to change from time to time as the
Prime Rate shall change.
(d) Application of Payments. All payments hereunder shall be
applied first to unpaid fees, costs and expenses then due and payable
under this Restated Credit Agreement or the other Credit Documents,
second to accrued interest then due and payable under this Restated
Credit Agreement or the other Credit Documents and finally to reduce
the principal amount of outstanding Revolving Loans.
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(e) Failure to Pay Administrative Agent. Unless Administrative
Agent shall have received notice from Borrower at least one (1)
Business Day prior to the date on which any payment is due to the Banks
hereunder that Borrower will not make such payment in full,
Administrative Agent may assume that Borrower has made such payment in
full to Administrative Agent on such date and Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each Bank
on such due date an amount equal to the amount then due such Bank. If
and to the extent Borrower shall not have so made such payment in full
to Administrative Agent, such Bank shall repay to Administrative Agent
forthwith on demand such amount distributed to such Bank together with
interest thereon, for each day from the date such amount is distributed
to such Bank until the date such Bank repays such amount to
Administrative Agent, at the Federal Funds Rate. A certificate of
Administrative Agent submitted to any Bank with respect to any amounts
owing by such Bank under this Subparagraph 2.05(e) shall be conclusive
absent manifest error.
2.06. Notes and Interest Account.
(a) Revolving Loan Notes. The obligation of Borrower to repay
the Revolving Loans made by each Bank and to pay interest thereon at
the rates provided herein shall be evidenced by a promissory note in
the form of Exhibit D (individually, a "Revolving Loan Note") which
note shall be (i) payable to the order of such Bank, (ii) in the amount
of such Bank's Revolving Loan Commitment, (iii) dated the Effective
Date and (iv) otherwise appropriately completed. Borrower authorizes
each Bank to record on the schedule annexed to such Bank's Revolving
Loan Note the date and amount of each Revolving Loan made by such Bank
and of each payment or prepayment of principal thereon made by
Borrower, and agrees that all such notations shall constitute prima
facie evidence of the matters noted, provided that a failure to so
record shall not affect Borrower's obligations to repay each Revolving
Loan, interest thereon and all other amounts payable hereunder, under
such Revolving Loan Note or under any other Credit Document. Borrower
further authorizes each Bank to attach to and make a part of such
Bank's Revolving Loan Note continuations of the schedule attached
thereto as necessary.
(b) Interest Account. Borrower authorizes Administrative Agent
to record in an account or accounts maintained by Administrative Agent
on its books (the "Interest Account") (i) the interest rates applicable
to all Revolving Loans and the effective dates of all changes thereto,
(ii) the Interest Period for each Revolving LIBOR Loan, (iii) the date
and amount of each principal and interest payment on each Revolving
Loan and (iv) such other information as Administrative Agent may
determine is necessary for the computation of interest payable by
Borrower hereunder.
2.07. Loan Funding.
(a) Bank Funding and Disbursement to Borrower. Each Bank
shall, before 11:00 a.m. on the date of each Revolving Loan Borrowing,
make available to Administrative Agent at its office specified in
Paragraph 8.01, in same day or
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immediately available funds, such Bank's Proportionate Share of such
Revolving Loan Borrowing. After Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in
Section III, Administrative Agent will promptly disburse such funds in
same day or immediately available funds to Borrower. Unless otherwise
directed by Borrower, Administrative Agent shall disburse the proceeds
of each Revolving Loan Borrowing to Borrower by disbursement to the
account or accounts specified in the applicable Notice of Revolving
Loan Borrowing.
(b) Bank Failure to Fund. Unless Administrative Agent shall
have received notice from a Bank prior to the date of any Revolving
Loan Borrowing that such Bank will not make available to Administrative
Agent such Bank's Proportionate Share of such Revolving Loan Borrowing,
Administrative Agent may assume that such Bank has made such portion
available to Administrative Agent on the date of such Revolving Loan
Borrowing in accordance with Subparagraph 2.07(a), and Administrative
Agent may, in reliance upon such assumption, make available to Borrower
(or otherwise disburse) on such date a corresponding amount. If any
Bank does not make the amount of its Proportionate Share of any
Revolving Loan Borrowing available to Administrative Agent on or prior
to the date of such Revolving Loan Borrowing, such Bank shall pay to
Administrative Agent, on demand, interest which shall accrue on such
amount until made available to Administrative Agent at rates equal to
(i) the daily Federal Funds Rate during the period from the date of
such Revolving Loan Borrowing through the third Business Day thereafter
and (ii) the Prime Rate thereafter. A certificate of Administrative
Agent submitted to any Bank with respect to any amounts owing under
this Subparagraph 2.07(b) shall be conclusive absent manifest error. If
any Bank's Proportionate Share of any Revolving Loan Borrowing is not
in fact made available to Administrative Agent by such Bank within
three (3) Business Days after the date of such Revolving Loan
Borrowing, Borrower shall pay to Administrative Agent, on demand, an
amount equal to such Proportionate Share together with interest
thereon, for each day from the date such amount was made available to
Borrower until the date such amount is repaid to Administrative Agent,
at the interest rate applicable at the time to the Revolving Loans
comprising such Revolving Loan Borrowing.
(c) Banks' Obligations Several. The failure of any Bank to
make the Revolving Loan to be made by it as part of any Revolving Loan
Borrowing shall not relieve any other Bank of its obligation hereunder
to make its Revolving Loan on the date of such Revolving Loan
Borrowing, but no Bank shall be responsible for the failure of any
other Bank to make the Revolving Loan to be made by such other Bank on
the date of any Revolving Loan Borrowing.
2.08. Pro Rata Treatment.
(a) Borrowings, Commitment Reductions, Etc. Except as
otherwise provided herein:
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(i) Each Revolving Loan Borrowing shall be made by
the Banks pro rata according to their respective Proportionate
Shares at the time of such Revolving Loan Borrowing;
(ii) Each reduction of the Total Revolving Loan
Commitment shall be applied to reduce the respective Revolving
Loan Commitments of the Banks as provided in Subparagraph
2.02(c);
(iii) Each payment of principal of and interest on
Revolving Loans in any Revolving Loan Borrowing shall be made
or shared among the Banks holding Revolving Loans in such
Revolving Loan Borrowing pro rata according to the respective
unpaid principal amounts of such Revolving Loans held by such
Banks;
(iv) Each payment of Revolving Loan Commitment Fees
and the Fee on Increased Commitment shall be shared among the
Banks pro rata according to their respective Proportionate
Shares provided that in the case of each Bank which becomes a
Bank hereunder after the date hereof, the Revolving Loan
Commitment Fees shall be shared with such Bank commencing on
the date upon which such Bank so became a Bank; and
(v) All other payments under this Restated Credit
Agreement and the other Credit Documents shall be for the
benefit of the Person or Persons specified.
(b) Sharing of Payments, Etc.
(i) If any Bank shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of
setoff, or otherwise) on account of Revolving Loans owed to it
in excess of its ratable share of payments on account of such
Revolving Loans obtained by all Banks entitled to such
payments, such Bank shall forthwith purchase an assignment
from the other Banks entitled to such excess payments in the
Revolving Loans as shall be necessary to cause such purchasing
Bank to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Bank,
such purchase shall be rescinded and each other Bank shall
repay to the purchasing Bank the purchase price to the extent
of such recovery together with an amount equal to such other
Bank's ratable share (according to the proportion of (i) the
amount of such other Bank's required repayment to (ii) the
total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing
Bank in respect of the total amount so recovered.
(ii) Borrower agrees that any Bank so purchasing an
assignment from another Bank pursuant to this Subparagraph
2.08(b) may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of setoff)
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with respect to such assignment as fully as if such Bank were
the direct creditor of Borrower in the amount of such
assignment.
2.09. Change of Circumstances.
(a) Inability to Determine Rates. If, on or before the first
day of any Interest Period for any Revolving LIBOR Loan, (i) any Bank
shall advise Administrative Agent that the LIBO Rate for such Interest
Period cannot be adequately and reasonably determined due to the
unavailability of funds in or other circumstances affecting the London
interbank market or (ii) any Bank shall advise Administrative Agent
that the rates of interest for such Revolving LIBOR Loans do not
adequately and fairly reflect the cost to such Bank of making or
maintaining such Revolving LIBOR Loans, Administrative Agent shall
immediately give notice of such condition to Borrower. After the giving
of any such notice and until Administrative Agent shall otherwise
notify Borrower that the circumstances giving rise to such condition no
longer exist, Borrower's right to request the making of or conversion
to, and the Banks' obligations to make or convert to Revolving LIBOR
Loans shall be suspended. Any Revolving LIBOR Loans outstanding at the
commencement of any such suspension shall be converted at the end of
the then current Interest Period for such Revolving LIBOR Loans into
Revolving Prime Rate Loans unless such suspension has then ended.
(b) Illegality. If, after the date of this Restated Credit
Agreement the adoption of any Governmental Rule, any change in any
Governmental Rule or the application or requirements thereof (whether
such change occurs in accordance with the terms of such Governmental
Rule as enacted, as a result of amendment or otherwise), any change in
the interpretation or administration of any Governmental Rule by any
Governmental Authority, or compliance by any Bank with any request or
directive (whether or not having the force of law)of any Governmental
Authority (a "Change of Law") shall make it unlawful or impossible for
any Bank to make or maintain any Revolving LIBOR Loan, such Bank shall
immediately notify Administrative Agent and Borrower of such Change of
Law. Upon receipt of such notice, (i) Borrower's right to request the
making of or conversion to, and the Banks' obligations to make or
convert to, Revolving LIBOR Loans shall be terminated, and (ii)
Borrower shall, at the request of any Bank, either (A) pursuant to
Subparagraph 2.01(d) convert any such then outstanding Revolving LIBOR
Loans into Revolving Prime Rate Loans at the end of the current
Interest Period for such Revolving LIBOR Loans, or (B) immediately
repay or convert any such Revolving LIBOR Loans if any Bank shall
notify Borrower that the such Bank may not lawfully continue to fund
and maintain such Revolving LIBOR Loans. Any conversion or prepayment
of Revolving LIBOR Loans made pursuant to the preceding sentence prior
to the last day of an Interest Period for such Revolving LIBOR Loans
shall be deemed a prepayment thereof for purposes of Paragraph 2.11.
(c) Increased Costs. If, after the date of this Restated
Credit Agreement, any Change of Law:
13
(i) Shall subject any Bank to any tax, duty or other
charge with respect to any Revolving LIBOR Loan, or shall
change the basis of taxation of payments by Borrower to any
Bank on such a Revolving LIBOR Loan or in respect to such a
Revolving LIBOR Loan under this Restated Credit Agreement
(except for changes in the rate of taxation on the overall net
income of any Bank); or
(ii) Shall impose, modify or hold applicable any
reserve, special deposit or similar requirement against assets
held by, deposits or other liabilities in or for the account
of, advances or loans by, or any other acquisition of funds by
any Bank for any Revolving LIBOR Loan; or
(iii) Shall impose on any Bank any other condition
related to any Revolving LIBOR Loan or its Revolving Loan
Commitment;
And the effect of any of the foregoing is to increase the cost to such
Bank of making, renewing, or maintaining any such Revolving LIBOR Loan
or its Revolving Loan Commitment or to reduce any amount receivable by
such Bank hereunder (and, in the case of a Revolving LIBOR Loan, such
increased cost or reduced amount is not fully reflected in the LIBO
Rate applicable to such Revolving LIBOR Loan); then Borrower shall from
time to time, upon demand by such Bank, pay to such Bank additional
amounts sufficient to reimburse such Bank for such increased costs or
to compensate such Bank for such reduced amounts. A Bank shall demand
such additional amounts by delivering to Borrower a written certificate
which sets forth in reasonable detail the allocation of the increased
costs or reduced amounts to such Bank's Revolving LIBOR Loans or
Revolving Loan Commitment, as the case may be, and the calculations
from which such costs or amounts were derived, which certificate shall
constitute prima facie evidence of such increased costs or reduced
amounts.
(d) Capital Requirements. If, after the date of this Restated
Credit Agreement, any Bank determines that (i) any Change of Law
affects the amount of capital required or expected to be maintained by
such Bank or any Person controlling such Bank (a "Capital Adequacy
Requirement"), (ii) the amount of capital maintained by such Bank or
such Person which is attributable to or based upon the Revolving Loans,
the Revolving Loan Commitments or this Restated Credit Agreement must
be increased as a result of such Capital Adequacy Requirement (taking
into account such Bank's or such Person's policies with respect to
capital adequacy) and (iii) in the case of increased capital
attributable to or based upon the Revolving Loans, the increased costs
to such Bank or such Person of such increased capital is not fully
reflected in the interest rates applicable to the Revolving Loans
hereunder and such Bank or such Person's capital as a consequence of
its Revolving Loan Commitments or the Revolving Loans made by such Bank
or such Person is reduced to a level below that which such Bank or such
Person, as the case may be, could have achieved but for the occurrence
of any such circumstance; then Borrower shall pay to such Bank or such
Person, upon demand of such Bank, such amounts as such Bank or such
Person shall determine are necessary to compensate such
14
Bank or such Person for the increased costs to such Bank or such Person
of such increased capital and for such reduction in rate of return. A
Bank shall demand such amounts by delivering to Borrower a written
certificate which sets forth in reasonable detail the allocation of the
increased costs to such Bank's Revolving Loans, Revolving Loan
Commitment or this Restated Credit Agreement, as the case may be, and
the calculations from which such costs were derived, which certificate
shall constitute prima facie evidence of such increased costs.
2.10. Taxes on Payments.
(a) Payments Free of Taxes. All payments made by Borrower
under this Restated Credit Agreement and the other Credit Documents
shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other
taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority (except net income taxes and
franchise taxes in lieu of net income taxes imposed on any Agent or a
Bank as a result of a present or former connection between the
jurisdiction of the Governmental Authority imposing such tax and such
Agent or such Bank, excluding a connection arising solely from such
Agent or such Bank having executed, delivered or performed its
obligations or received a payment under, or enforced, this Restated
Credit Agreement or the other Credit Documents) (all such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are
required to be withheld from any amounts payable to any Agent or any
Bank hereunder or under the other Credit Documents, the amounts so
payable to such Agent or such Bank shall be increased to the extent
necessary to yield to such Agent or such Bank (after payment of all
Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Restated Credit Agreement and
the other Credit Documents. Whenever any Taxes are payable by Borrower,
as promptly as possible thereafter, Borrower shall send to
Administrative Agent for its own account or for the account of such
other Agent or such Bank, as the case may be, a certified copy of an
original official receipt received by Borrower showing payment thereof.
If Borrower fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to Administrative Agent the required
receipts or other required documentary evidence, Borrower shall
indemnify the Agents and the Banks for any incremental taxes, interest
or penalties that may become payable by any Agent or any Bank as a
result of any such failure. The agreements in this Subparagraph 2.10(a)
shall survive the termination of this Restated Credit Agreement.
(b) Withholding Exemption Certificates. On or prior to the
Effective Date (or the Assignment Effective Date in the case of any
Bank which becomes a Bank hereunder after the Effective Date), each
Bank which is not incorporated under the laws of the United States of
America or a state thereof shall deliver to Borrower and Administrative
Agent two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 (or successor applicable form), as the case
may be, certifying in each case that such Bank is entitled to receive
payments under this Restated Credit Agreement without
15
deduction or withholding of any United States federal income taxes.
Each Bank which delivers to Borrower and Administrative Agent a Form
1001 or 4224 pursuant to the immediately preceding sentence further
undertakes to deliver to Borrower and Administrative Agent two further
copies of the said letter and Form 1001 or 4224 (or successor
applicable forms), or other manner of certification or procedure, as
the case may be, on or before the date that any such letter or form
expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent letter and form previously
delivered by it to Borrower and Administrative Agent, and such
extensions or renewals thereof as may reasonably be requested by
Borrower or Administrative Agent, certifying in the case of a Form 1001
or 4224 that such Bank is entitled to receive payments under this
Restated Credit Agreement without deduction or withholding of any
United States federal income taxes, unless in any such cases an event
(including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or
which would prevent a Bank from duly completing and delivering any such
letter or form with respect to it and such Bank advises Borrower and
Administrative Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal income
tax. Borrower shall not be required to pay any additional amounts to
Administrative Agent or any Bank hereunder to the extent that the
obligation to pay such additional amounts would not have arisen but for
a failure by Administrative Agent or such Bank to comply with the
provisions of this Subparagraph 2.10(b) or the last sentence of
Subparagraph 8.05(c).
2.11. Funding Loss Indemnification. If Borrower shall (a) repay or
prepay any Revolving LIBOR Loan on any day other than the last day of an
Interest Period therefor (whether an optional prepayment, a mandatory
prepayment, a payment upon acceleration or otherwise), (b) fail to borrow any
Revolving LIBOR Loan for which a Notice of Revolving Loan Borrowing has been
delivered to Administrative Agent (whether as a result of the failure to satisfy
any applicable conditions or otherwise) or (c) fail to convert any Revolving
Prime Rate Loans into Revolving LIBOR Loans in accordance with a Notice of
Revolving Loan Conversion delivered to Administrative Agent (whether as a result
of the failure to satisfy any applicable conditions or otherwise), Borrower
shall, upon demand by any Bank, reimburse such Bank and hold such Bank harmless
for all costs and losses actually incurred by such Bank as a result of such
repayment, prepayment or failure. Borrower understands that such costs and
losses may include, without limitation, losses incurred by a Bank as a result of
funding and other contracts entered into by such Bank to fund or in connection
with the funding of a Revolving LIBOR Loan. A Bank shall demand such
reimbursement by delivering to Borrower a written certificate which sets forth
in reasonable detail the allocation of the costs and losses to such Bank's
Revolving Loans and the calculations from which such costs and losses were
derived, which certificate shall constitute prima facie evidence of such costs
and losses.
2.12. Security.
(a) Security Agreements; Guaranties; Etc. on Effective Date On
the Effective Date, the Obligations shall be secured by the following:
16
(i) A Third Amended and Restated Security Agreement
in the form of Exhibit E, duly executed by Borrower (the
"Borrower Security Agreement");
(ii) A Third Amended and Restated Pledge Agreement in
the form of Exhibit F, duly executed by Borrower (the
"Borrower Pledge Agreement"); and
(iii) A Guaranty in the form of Exhibit G, duly
executed by Xxxx Canada (the "Xxxx Canada Guaranty").
(b) Additional Security Agreements; Guaranties; Etc. on the
Tenex Data Acquisition Effective Date On and after the Tenex Data
Acquisition Effective Date, the Obligations shall also be secured by
the following:
(i) A Pledge Agreement substantially in the form of
Exhibit H, duly executed by Xxxx Canada (the "Xxxx Canada
Pledge Agreement").
(ii) A Guaranty substantially in the form of Exhibit
I, duly executed by Xxxx-Tenex (the "Xxxx-Tenex Guaranty");
(iii) A Security Agreement substantially in the form
of Exhibit J, duly executed by Xxxx-Tenex (the "Xxxx-Tenex
Security Agreement"); and
(iv) One or more additional security agreements,
pledge agreements, guaranties and other instruments,
agreements, certificates, opinions and documents
(collectively, the "Xxxx-Tenex Canadian Security Documents")
as either Agent may request to grant, perfect, maintain,
protect and evidence security interests in favor of Collateral
Agent, for the benefit of the Banks, in any or all present and
future personal property of Xxxx-Tenex located in Canada prior
to the Liens (other than Permitted Liens) or other interests
of any Person.
(c) Further Assurances. Borrower shall deliver to Collateral
Agent, and shall cause each of Xxxx Canada and Xxxx-Tenex to deliver,
such additional security agreements, pledge agreements, guaranties and
other instruments, agreements, certificates, opinions and documents
(including Uniform Commercial Code financing statements and fixture
filings and landlord waivers) as either Agent may request to:
(i) Grant, perfect, maintain, protect and evidence
security interests in favor of Collateral Agent, for the
benefit of the Banks, in any or all present and future
personal property of Borrower and its Subsidiaries prior to
the Liens or other interests of any Person (other than
Permitted Liens); or
(ii) Otherwise establish, maintain, protect and
evidence the rights provided to Collateral Agent and the Banks
pursuant to the Security Documents.
Borrower shall fully cooperate with the Agents and perform all
additional acts reasonably requested by the Agents to effect the
purposes of this Paragraph 2.12.
17
SECTION III. CONDITIONS PRECEDENT.
3.01. Conditions Precedent to Initial Revolving Loans. The obligations
of the Banks to make the Revolving Loans in the initial Revolving Loan Borrowing
on or after the Effective Date are subject to receipt by Administrative Agent,
on or prior to the Effective Date, of (a) the Notice of Revolving Loan Borrowing
requesting such Revolving Loan Borrowing delivered in accordance with this
Restated Credit Agreement and (b) each item listed in Schedule 3.01, each in
form and substance satisfactory to Administrative Agent, and with sufficient
copies for, Administrative Agent, Collateral Agent and each Bank.
3.02. Conditions Precedent to Each Credit Event. The occurrence of each
Credit Event, including the initial Revolving Loan Borrowing on or after the
Effective Date, is subject to the further conditions that on the date such
Credit Event is to occur and after giving effect to such Credit Event, the
following shall be true and correct:
(a) The representations and warranties set forth in Paragraph
4.01 are true and correct in all material respects as if made on such
date;
(b) No Default or Event of Default has occurred and is
continuing or will result from such Credit Event;
(c) Each of the Credit Documents required to be delivered to
Administrative Agent, Collateral Agent or any Bank on or prior to such
date remains in full force and effect (except as otherwise agreed by
Administrative Agent in writing); and
(d) In the case of Credit Events with respect to Revolving
Loan Borrowings, no material adverse change in the Eligible Accounts or
Eligible Inventory which comprises the Borrowing Base shall have
occurred since the later date of (i) the latest audit conducted by or
on behalf of Administrative Agent, Collateral Agent or any Bank, and
(ii) the most recent Borrowing Base Certificate.
The submission by Borrower to Administrative Agent of each Notice of Revolving
Loan Borrowing, each Notice of Revolving Loan Conversion and each Notice of
Revolving Loan Interest Period Selection shall be deemed to be a representation
and warranty by Borrower as of the date thereon as to the above.
3.03. Covenant to Deliver. Borrower agrees (not as a condition but as a
covenant) to deliver to Administrative Agent or Collateral Agent, as the case
may be, each item required to be delivered to Administrative Agent or Collateral
Agent, as the case may be, as a condition to the occurrence of any Credit Event
if such Credit Event occurs. Borrower expressly agrees that the occurrence of
any such Credit Event prior to the receipt by Administrative Agent or Collateral
Agent, as the case may be, of any such item shall not constitute a waiver by
Administrative Agent, Collateral Agent or any Bank of Borrower's obligation to
deliver such item.
18
SECTION IV. REPRESENTATIONS AND WARRANTIES.
4.01. Borrower's Representations and Warranties. In order to induce the
Agents and the Banks to enter into this Restated Credit Agreement, Borrower
hereby represents and warrants to the Agents and the Banks as follows:
(a) Due Incorporation, Qualification, etc. Each of Borrower
and its Subsidiaries (i) is a corporation duly organized, validly
existing and in good standing under the laws of its state of
incorporation; (ii) has the power and authority to own, lease and
operate its properties and carry on its business as now conducted; and
(iii) is duly qualified, licensed to do business and in good standing
as a foreign corporation in each jurisdiction where the failure to be
so qualified or licensed might have a Material Adverse Effect.
(b) Authority. The execution, delivery and performance by each
of Borrower and its Subsidiaries of each Credit Document executed, or
to be executed, by such Person and the consummation of the transactions
contemplated thereby (i) are within the power of such Person and (ii)
have been duly authorized by all necessary actions on the part of such
Person.
(c) Enforceability. Each Credit Document executed, or to be
executed, by each of Borrower and its Subsidiaries has been, or will
be, duly executed and delivered by such Person and constitutes, or will
constitute, a legal, valid and binding obligation of such Person,
enforceable against such Person in accordance with its terms, except as
limited by bankruptcy, insolvency or other laws of general application
relating to or affecting the enforcement of creditors' rights generally
and general principles of equity.
(d) Non-Contravention. The execution and delivery by each of
Borrower and its Subsidiaries of the Credit Documents executed, or to
be executed, by such Person and the performance and consummation of the
transactions contemplated thereby do not (i) violate any Requirement of
Law applicable to such Person; (ii) violate any provision of, or result
in the breach or the acceleration of, or entitle any other Person to
accelerate (whether after the giving of notice or lapse of time or
both), any Contractual Obligation of such Person; or (iii) result in
the creation or imposition of any Lien upon any property, asset or
revenue of such Person (except such Liens as may be created in favor of
any Agent or any Bank pursuant to this Restated Credit Agreement or the
other Credit Documents).
(e) Approvals. No consent, approval, order or authorization
of, or registration, declaration or filing with, any Governmental
Authority or other Person (including, without limitation, the
shareholders of any Person) is required in connection with the
execution and delivery of the Credit Documents executed by Borrower or
its Subsidiaries and the performance and consummation of the
transactions contemplated thereby.
19
(f) No Violation or Default. Neither Borrower nor any of its
Subsidiaries is in violation of or in default with respect to (i) any
Requirement of Law applicable to such Person; (ii) any Contractual
Obligation of such Person (nor is there any waiver in effect which, if
not in effect, would result in such a violation or default), where, in
each case, such violation or default could have a Material Adverse
Effect. Without limiting the generality of the foregoing, neither
Borrower nor any of its Subsidiaries (A) has violated any Environmental
Laws, (B) has any liability under any Environmental Laws or (C) has
received notice or other communication of an investigation or is under
investigation by any Governmental Authority having authority to enforce
Environmental Laws, where such violation, liability or investigation
could have a Material Adverse Effect. No Event of Default or Default
has occurred and is continuing.
(g) Litigation. Except as set forth (with the dollar amounts
claimed) in Schedule 4.01(g), no actions (including, without
limitation, derivative actions), suits, proceedings or investigations
are pending or, to the knowledge of Borrower, threatened against
Borrower or any of its Subsidiaries at law or in equity in any court or
before any other Governmental Authority which (i) could (alone or in
the aggregate) have a Material Adverse Effect or (ii) seeks to enjoin,
either directly or indirectly, the execution, delivery or performance
by Borrower or any of its Subsidiaries of the Credit Documents or the
transactions contemplated thereby.
(h) Title. Borrower and its Subsidiaries own and have good and
marketable title in fee simple absolute to, or a valid leasehold
interest in, all their respective real properties and good title to
their other respective assets and properties as reflected in the most
recent Financial Statements delivered to Bank (except those assets and
properties disposed of in the ordinary course of business or otherwise
in compliance with this Restated Credit Agreement since the date of
such Financial Statements) and all respective assets and properties
acquired by Borrower and its Subsidiaries since such date (except those
disposed of in the ordinary course of business or otherwise in
compliance with this Restated Credit Agreement). Such assets and
properties are subject to no Lien, except for Permitted Liens.
(i) Financial Statements. The Financial Statements of Borrower
and its Subsidiaries which have been delivered to Administrative Agent
and the Banks, (i) are in accordance with the books and records of
Borrower and its Subsidiaries, which have been maintained in accordance
with good business practice; (ii) have been prepared in conformity with
GAAP; and (iii) fairly present the respective financial positions of
Borrower and its Subsidiaries at such date. Neither Borrower nor any of
its Subsidiaries has any contingent obligations, liability for taxes or
other outstanding obligations which are material in the aggregate,
except as disclosed in the audited Financial Statements of Borrower
dated December 31, 1997, furnished by Borrower to Administrative Agent
and the Banks prior to the date hereof, or in the Financial Statements
delivered to Administrative Agent and the Banks pursuant to
Subparagraph 5.01(a)(ii) or (iii).
20
(j) Equity Securities. The authorized Equity Securities of
Borrower consist of (i) 20,000,000 shares of common stock of which
approximately 8,832,665 shares are duly issued and outstanding, (ii)
10,000,000 shares of preferred stock none of which shares are duly
issued and outstanding, (iii) no warrants to purchase shares of common
stock are issued and outstanding, (iv) the Almo Warrant, (v) options to
purchase 1,720,785 shares of common stock, pursuant to the 1998 Stock
Option Plan, of which approximately 1,395,113 options are outstanding
and (vi) 251,674 shares of common stock reserved pursuant to the
Company's Employee Stock Purchase Plan. All outstanding Equity
Securities (except for the option to purchase common stock) of Borrower
are duly authorized, validly issued, fully paid and non-assessable.
There are no other outstanding subscriptions, options, conversion
rights, warrants or other agreements or commitments of any nature
whatsoever (firm or conditional) obligating Borrower to issue, deliver
or sell, or cause to be issued, delivered or sold, any additional
Equity Securities of Borrower, or obligating Borrower to grant, extend
or enter into any such agreement or commitment. All Equity Securities
of Borrower have been offered and sold in compliance with all federal
and state securities laws and all other Requirements of Law.
(k) No Agreements to Sell Assets. Neither Borrower nor any of
its Subsidiaries has any legal obligation, absolute or contingent, to
any Person to sell all or a substantial portion of the assets of
Borrower or its Subsidiaries (other than sales in the ordinary course
of business), or to effect any merger, consolidation or other
reorganization of Borrower or any of its Subsidiaries or to enter into
any agreement with respect thereto.
(l) Employee Benefit Plans.
(i) Based upon the latest valuation of each "employee
pension benefit plan" (within the meaning of section 3(2) of
ERISA) that either Borrower or any ERISA Affiliate maintains
or contributes to, or has any obligation under (which
valuation occurred within twelve months of the date of this
representation), the aggregate benefit liabilities of such
plan within the meaning of Section 4001 of ERISA did not
exceed the aggregate value of the assets of such plan. Neither
Borrower nor any ERISA Affiliate has any liability with
respect to any post-retirement benefit under any Employee
Benefit Plan which is a welfare plan (as defined in section
3(1) of ERISA), other than liability for health plan
continuation coverage described in Part 6 of Title I(B) of
ERISA, which liability for health plan contribution coverage
will not have a Material Adverse Effect.
(ii) Each Employee Benefit Plan complies, in both
form and operation, in all material respects, with its terms,
ERISA and the Code, and no condition exists or event has
occurred with respect to any such plan which would result in
the incurrence by either Borrower or any ERISA Affiliate of
any material liability, fine or penalty. Each Employee Benefit
Plan, related trust agreement, arrangement and commitment of
Borrower or any ERISA Affiliate is legally valid and binding
and in full force and effect. No Employee Benefit Plan is
being
21
audited or investigated by any government agency or is subject
to any pending or threatened claim or suit. Neither Borrower
nor any ERISA Affiliate nor any fiduciary of any Employee
Benefit Plan has engaged in a prohibited transaction under
section 406 of ERISA or section 4975 of the Code.
(iii) Neither Borrower nor any ERISA Affiliate
contributes to any Multiemployer Plan. Neither Borrower nor
any ERISA Affiliate has incurred any material liability
(including secondary liability) to any Multiemployer Plan as a
result of a complete or partial withdrawal from such
Multiemployer Plan under Section 4201 of ERISA or as a result
of a sale of assets described in Section 4204 of ERISA.
Neither Borrower nor any ERISA Affiliate has been notified
that any Multiemployer Plan is in reorganization or insolvent
under and within the meaning of Section 4241 or Section 4245
of ERISA or that any Multiemployer Plan intends to terminate
or has been terminated under Section 4041A of ERISA.
(m) Other Regulations. Neither Borrower nor any of its
Subsidiaries is subject to regulation under the Investment Company Act
of 1940, the Public Utility Holding Company Act of 1935, the Federal
Power Act, any state public utilities code or to any federal or state
statute or regulatory scheme which would limit its ability execute,
deliver and perform any of the Credit Documents executed or to be
executed by it.
(n) Patent and Other Rights. Borrower and its Subsidiaries
own, and have the full right to license without the consent of any
other Person, all patents, licenses, trademarks, trade names, trade
secrets, service marks, copyrights and all rights with respect thereto,
which are required to conduct their businesses as now conducted.
(o) Governmental Charges and Other Indebtedness. Borrower and
its Subsidiaries have filed or caused to be filed all tax returns which
are required to be filed by them. Borrower and its Subsidiaries have
paid, or made provision for the payment of, all taxes and other
Governmental Charges which have or may have become due pursuant to said
returns or otherwise and all other Indebtedness, except such
Governmental Charges or Indebtedness, if any, which are being contested
in good faith and as to which adequate reserves (determined in
accordance with GAAP) have been provided or which could not have a
Material Adverse Effect if unpaid.
(p) Margin Stock. Borrower owns no Margin Stock which, in the
aggregate, would constitute a substantial part of the assets of
Borrower, and no proceeds of any Revolving Loan will be used to
purchase or carry, directly or indirectly, any Margin Stock or to
extend credit, directly or indirectly, to any Person for the purpose of
purchasing or carrying any Margin Stock.
(q) Subsidiaries, etc. Set forth in Schedule 4.01(q) is a
complete list of all of Borrower's Subsidiaries, the jurisdiction of
incorporation of each, the classes of Equity Securities of each and the
number of shares and percentages of shares of each such class owned
directly or indirectly by Borrower. Except for such Subsidiaries,
Borrower has no Subsidiaries, is not a partner in any partnership or a
joint venturer in any joint venture.
22
(r) Solvency, Etc. Borrower and each of its Subsidiaries is
Solvent and, after the execution and delivery of the Credit Documents
and the consummation of the transactions contemplated thereby, will be
Solvent.
(s) Catastrophic Events. Neither Borrower nor any of its
Subsidiaries and none of their properties is or has been affected by
any fire, explosion, accident, strike, lockout or other labor dispute,
drought, storm, hail, earthquake, embargo, act of God or other casualty
that could have a Material Adverse Effect. There are no disputes
presently subject to grievance procedure, arbitration or litigation
under any of the collective bargaining agreements, employment contracts
or employee welfare or incentive plans to which Borrower or any of its
Subsidiaries is a party, and there are no strikes, lockouts, work
stoppages or slowdowns, or, to the best knowledge of Borrower,
jurisdictional disputes or organizing activity occurring or threatened
which could have a Material Adverse Effect.
(t) Burdensome Contractual Obligations, Etc. Neither Borrower
nor any of its Subsidiaries and none of their properties is subject to
any Contractual Obligation or Requirement of Law which could have a
Material Adverse Effect.
(u) No Material Adverse Effect. No event has occurred and no
condition exists which could reasonably be expected to have a Material
Adverse Effect.
(v) Year 2000 Compatibility. Borrower and its Subsidiaries
have reviewed the areas within their business and operations which
could be materially adversely affected by, and are taking all steps
Borrower and its Subsidiaries consider reasonably necessary to address
on a timely basis, the "Year 2000 Problem" (that is, the risk that
computer applications used by Borrower and its Subsidiaries may be
unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date on or after December 31,
1999), and have made related appropriate inquiry of material suppliers
and vendors. Based upon such review and program, Borrower believes that
the "Year 2000 Problem" will not have a Material Adverse Effect.
(w) Accuracy of Information Furnished. None of the Credit
Documents and none of the other certificates, statements or information
furnished to any Agent or any Bank by or on behalf of Borrower or any
of its Subsidiaries in connection with the Credit Documents or the
transactions contemplated thereby contains or will contain any untrue
statement of a material fact or omits or will omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
4.02. Reaffirmation. Borrower shall be deemed to have reaffirmed, for
the benefit of the Banks and the Agents, each representation and warranty
contained in Paragraph 4.01 on and as of the date of each Credit Event.
23
SECTION V. COVENANTS.
5.01. Affirmative Covenants. Until the termination of this Restated
Credit Agreement and the satisfaction in full by Borrower of all Obligations,
Borrower will comply, and will cause compliance, with the following affirmative
covenants, unless Required Banks shall otherwise consent in writing:
(a) Financial Statements, Reports, etc. Borrower shall furnish
to Administrative Agent or if otherwise specified herein, Collateral
Agent (with a copy for each Bank to be forwarded by Administrative
Agent or Collateral Agent, respectively) the following, each in such
form and such detail as Administrative Agent or Collateral Agent, as
applicable, shall reasonably request:
(i) Within fifty (50) days after the last day of each
fiscal quarter of Borrower, (A) a copy of the Financial
Statements of Borrower for such quarter and for the fiscal
year to date (including consolidated Financial Statements for
Borrower and its Subsidiaries), certified by the president or
chief financial officer of Borrower to present fairly the
financial condition, results of operations and other
information reflected therein and to have been prepared in
accordance with GAAP (subject to year-end audit adjustments)
and (B) the Form 10-Q Report filed by Borrower with the
Securities and Exchange Commission for such quarter;
(ii) Within ninety-five (95) days after the close of
each fiscal year of Borrower, (A) copies of the audited
Financial Statements of Borrower for such year (including
consolidated Financial Statements for Borrower and its
Subsidiaries), prepared by independent certified public
accountants acceptable to Bank, (B) copies of the unqualified
opinions (or qualified opinions reasonably acceptable to the
Banks) and management letters delivered by such accountants in
connection with all such Financial Statements, (C)
certificates of all such accountants to Bank stating that in
making the examination necessary for their opinion they have
obtained no knowledge of any Event of Default or Default which
has occurred and is continuing, or if, in the opinion of such
accountants, an Event of Default or Default has occurred and
is continuing, a statement as to the nature thereof (or other
certificates of such accountants reasonably acceptable to
Required Banks) and (D) the Form 10-K Report filed by Borrower
with the Securities and Exchange Commission for such year;
(iii) Contemporaneously with the quarterly and
year-end financial statements required by the foregoing
clauses (i) and (ii), a certificate of the president or chief
financial officer of Borrower in such detail as Administrative
Agent may reasonably request which (A) sets forth the
calculations conducted to verify that Borrower is in
compliance with each of the financial covenants set forth in
Paragraph 5.02(m) and stating that no Event of Default and no
Default has occurred and is continuing, or, if any such Event
of Default or Default has occurred and is continuing, a
statement as to the nature thereof and what action
24
Borrower proposes to take with respect thereto, (B) states
that the Year 2000 remediation efforts of Borrower and its
Subsidiaries are proceeding as scheduled, and (C) indicates
whether an auditor, regulator or third party consultant has
issued a management letter or other communication regarding
any Material Adverse Effect the Year 2000 exposure, program or
progress could have on Borrower and its Subsidiaries taken as
a whole;
(iv) As soon as available and in no event later than
fifteen (15) days after the last day of each fiscal month, to
Collateral Agent (A) agings of Borrower's and its
Subsidiaries' accounts receivable and accounts payable as of
the last day of each month, (B) a report of Borrower's and its
Subsidiaries' inventory as of the last day of such month, and
(C) a certificate in the form of Exhibit K (or other form
acceptable to Collateral Agent), appropriately completed (a
"Borrowing Base Certificate"), which sets forth the
calculation of the Borrowing Base as of such last day of such
month, certified by the chief financial officer or treasurer
of Borrower;
(v) As soon as possible and in no event later than
five (5) Business Days after any officer of Borrower knows of
the occurrence or existence of (A) any Reportable Event under
any Employee Benefit Plan or Multiemployer Plan; (B) any
actual or threatened litigation, suits, claims or disputes
against Borrower or any of its Subsidiaries involving
potential monetary damages payable by Borrower or any of its
Subsidiaries of $1,000,000 or more (alone or in the
aggregate); (C) any other event or condition which could
reasonably be expected to have a Material Adverse Effect; or
(D) any Event of Default or Default; the statement of the
president or chief financial officer of Borrower setting forth
details of such event, condition, Event of Default or Default
and the action which Borrower proposes to take with respect
thereto;
(vi) As soon as possible and in no event later than
five (5) Business Days after they are sent, made available or
filed, copies of all registration statements and reports filed
by Borrower with the Securities and Exchange Commission
(including 8Q reports) and all reports, proxy statements and
financial statements sent or made available by Borrower to its
shareholders generally;
(vii) As soon as possible and in no event later than
five (5) Business Days after they are filed, copies of all IRS
Form 5500 reports for all Employee Benefit Plans required to
file such form; and
(viii) Such other instruments, agreements,
certificates, opinions, statements, documents and information
relating to the operations or condition (financial or
otherwise) of Borrower or any of its Subsidiaries, and
compliance by Borrower and its Subsidiaries with the terms of
this Restated Credit Agreement and the other Credit Documents
as any Agent may from time to time reasonably request.
25
(b) Books and Records. Borrower and its Subsidiaries shall at
all times keep proper books of record and account in which full, true
and correct entries will be made of their transactions in accordance
with GAAP.
(c) Inspections. Borrower and its Subsidiaries shall permit
any Person designated by Collateral Agent in its sole discretion
(including without limitation any Bank that so requests, which request
shall not be unreasonably denied), upon reasonable notice and during
normal business hours, to visit and inspect any of the properties and
offices of Borrower and its Subsidiaries, to conduct audits of any or
all of the Collateral at Borrower's expense, to examine the books of
account of Borrower and its Subsidiaries and to discuss the affairs,
finances and accounts of Borrower and its Subsidiaries with, and to be
advised as to the same by, their officers, auditors and accountants,
all at such times and intervals as Collateral Agent may reasonably
request, including, without limitation, an annual audit of the accounts
and inventory of Borrower and its Subsidiaries, the fees and expenses
of which shall be payable by Borrower pursuant to Subparagraph 8.02(b).
(d) Insurance. Each of Borrower and its Subsidiaries shall (i)
insure its inventory against such risks, in such amounts and with such
insurers satisfactory to the Banks; (ii) carry and maintain additional
insurance of the types and in the amounts customarily carried from time
to time during the term of this Restated Credit Agreement by others
engaged in substantially the same business as such Person and operating
in the same geographic area as such Person, including fire, public
liability, property damage and worker's compensation, such insurance to
be carried with companies and in amounts satisfactory to the Banks;
(iii) name Collateral Agent as additional insured or loss payee, as
appropriate, on all such insurance; and (iv) deliver to Collateral
Agent from time to time, as Collateral Agent may request, schedules
setting forth all insurance then in effect and policy endorsements for
such insurance naming Collateral Agent as additional insured or loss
payee.
(e) Governmental Charges and Other Indebtedness. Borrower and
its Subsidiaries shall promptly pay and discharge before delinquent (i)
all taxes and other Governmental Charges prior to the date upon which
penalties accrue thereon, except such Governmental Charges as may in
good faith be contested or disputed by appropriate proceedings,
provided that in each such case appropriate reserves are maintained in
accordance with GAAP, (ii) all Indebtedness which, if unpaid, could
become a Lien upon the property of Borrower or its Subsidiaries and
(iii) all other Indebtedness which, if unpaid, could have a Material
Adverse Effect, except such Indebtedness as may in good faith be
contested or disputed by appropriate proceedings, or for which
arrangements for deferred payment have been made, provided that in each
such case appropriate reserves are maintained in accordance with GAAP.
(f) Use of Proceeds. Borrower shall use the proceeds of the
Revolving Loans only for the purposes set forth in Subparagraph
2.01(g). Borrower shall not use any part of the proceeds of any
Revolving Loan, directly or indirectly, for the purpose of
26
purchasing or carrying any Margin Stock or for the purpose of
purchasing or carrying or trading in any securities under such
circumstances as to involve Borrower or Bank in a violation of
Regulations T, U or X issued by the Federal Reserve Board.
(g) General Business Operations. Each of Borrower and its
Subsidiaries shall (i) preserve and maintain its corporate existence
and all of its rights, privileges and franchises reasonably necessary
to the conduct of its business, (ii) conduct its business activities in
compliance with all Requirements of Law and Contractual Obligations
applicable to such Person, the violation of which could have a Material
Adverse Effect, (iii) keep all property useful and necessary in its
business in good working order and condition, ordinary wear and tear
excepted, and (iv) not change its chief executive office and principal
place of business from San Jose, California without ninety (90) days
prior written notice to Collateral Agent.
(h) Landlord Waivers and Consents. Borrower shall use its best
efforts to obtain such landlord waivers and consents, in form and
substance satisfactory to Collateral Agent, as Collateral Agent may
from time to time request pursuant to which each such landlord shall
acknowledge Collateral Agent's and the Banks' senior security interest
in all of Borrower's and its Subsidiaries' inventory stored at such
locations, disclaim any interest in such inventory and agree to provide
Collateral Agent on behalf of the Banks access to remove such
inventory.
(i) Year 2000 Compatibility. Borrower and its Subsidiaries
shall take all acts reasonably necessary to ensure that all software,
hardware, firmware, equipment, goods and systems utilized by or
material to their business, operations or financial condition will
properly perform date sensitive functions before, during and after the
year 2000. At the request of Administrative Agent, Borrower shall
provide to Administrative Agent such certifications or other evidence
of compliance with this Subparagraph 5.01(i) as Administrative Agent
may from time to time require.
(j) Tenex-Data Acquisition. On or prior to the Tenex Data
Acquisition Effective Date, Borrower shall obtain and deliver to
Administrative Agent each item listed in Schedule 5.01(j), each in form
and substance reasonably satisfactory to the Agents, and with
sufficient copies for, the Agents and each Bank.
5.02. Negative Covenants. Until the termination of this Restated Credit
Agreement and the satisfaction in full by Borrower of all Obligations, Borrower
will comply, and will cause compliance, with the following negative covenants,
unless Required Banks or Banks, as the case may be, shall otherwise consent in
writing:
(a) Indebtedness. Neither Borrower nor any of its Subsidiaries
shall create, incur, assume or permit to exist any Indebtedness except
for Permitted Indebtedness.
(b) Liens. Neither Borrower nor any of its Subsidiaries shall
create, incur, assume or permit to exist any Lien on or with respect to
any of its assets or property of any character, whether now owned or
hereafter acquired, except for Permitted Liens.
27
(c) Asset Dispositions. Neither Borrower nor any of its
Subsidiaries shall sell, lease, transfer or otherwise dispose of any of
its assets or property, whether now owned or hereafter acquired, except
in the ordinary course of its business.
(d) Mergers, Acquisitions, Etc. Neither Borrower nor any of
its Subsidiaries shall consolidate with or merge into any other Person
or permit any other Person to merge into it, or acquire all or
substantially all of the assets of any other Person, except that any
wholly-owned Subsidiary of Borrower may merge into Borrower or any
other wholly-owned Subsidiary of Borrower.
(e) Investments. Neither Borrower nor any of its Subsidiaries
shall make any Investment except for Permitted Investments.
(f) Dividends, Redemptions, Etc. Borrower shall not (i) pay
any dividends or make any distributions on its Equity Securities; (ii)
purchase, redeem, retire, defease or otherwise acquire for value any of
its Equity Securities; (iii) return any capital to any holder of its
Equity Securities as such; (iv) make any distribution of assets, Equity
Securities, obligations or securities to any holder of its Equity
Securities as such; or (v) set apart any sum for any such purpose;
except that Borrower may pay Permitted Dividends.
(g) Capital Expenditures. Borrower and its Subsidiaries shall
not pay or incur Capital Expenditures which exceed in aggregate in any
fiscal year $5,000,000.
(h) Change in Business. Neither Borrower nor any of its
Subsidiaries shall engage, either directly or indirectly through
Affiliates, in any business substantially different from and not
incidental to its present business.
(i) Indebtedness Payments. Neither Borrower nor any of its
Subsidiaries shall (i) make any payment on the Subordinated
Indebtedness; (ii) prepay, redeem, purchase, defease or otherwise
satisfy in any manner prior to the scheduled repayment thereof any
other Indebtedness for borrowed money (other than the Obligations) or
lease obligations; (iii) amend, modify or otherwise change the
subordination provisions of any Subordinated Indebtedness; or (iv)
amend, modify or otherwise change the terms of any Subordinated
Indebtedness or any other Indebtedness for borrowed money (other than
the Obligations) or lease obligations so as to accelerate the scheduled
repayment thereof.
(j) ERISA. Neither Borrower nor any ERISA Affiliate shall (i)
adopt or institute any Employee Benefit Plan that is an employee
pension benefit plan within the meaning of Section 3(2) of ERISA, (ii)
take any action which will result in the partial or complete
withdrawal, within the meanings of sections 4203 and 4205 of ERISA,
from a Multiemployer Plan, (iii) engage or permit any Person to engage
in any transaction prohibited by section 406 of ERISA or section 4975
of the Code involving any Employee Benefit Plan or Multiemployer Plan
which would subject either Borrower or any ERISA Affiliate to any tax,
penalty or other liability including a liability to indemnify, (iv)
incur or allow to exist any accumulated funding deficiency (within the
meaning of section 412
28
of the Code or section 302 of ERISA), (v) fail to make full payment
when due of all amounts due as contributions to any Employee Benefit
Plan or Multiemployer Plan, (vi) fail to comply with the requirements
of section 4980B of the Code or Part 6 of Title I(B) of ERISA, or (vii)
adopt any amendment to any Employee Benefit Plan which would require
the posting of security pursuant to section 401(a)(29) of the Code,
where singly or cumulatively, the above would have a Material Adverse
Effect.
(k) Transactions With Affiliates. Neither Borrower nor any of
its Subsidiaries shall enter into any Contractual Obligation with any
Affiliate or engage in any other transaction with any Affiliate except
that Borrower and its Subsidiaries may (i) sell assets to each other
for fair value and (ii) engage in other transactions with each other or
with Affiliates upon terms at least as favorable to Borrower and its
Subsidiaries as arms-length transactions with unaffiliated Persons.
(l) Accounting Changes. Neither Borrower nor any of its
Subsidiaries shall change (i) its fiscal year (currently January 1
through December 31) or (ii) its accounting practices except as
required by GAAP.
(m) Financial Covenants. Borrower shall not permit:
(i) Its Quick Ratio to be less than 0.50 to 1.00 at
any time;
(ii) Its Working Capital to be less than $60,000,000
at any time;
(iii) Its Tangible Net Worth to be less than the sum
on any date of determination of (1) $70,000,000 plus (2) fifty
percent (50%) of the sum of Borrower's Net Income After Tax
for each quarter (excluding any quarter in which such amount
was negative) beginning with the quarter ending June 30, 1998
plus (3) one hundred percent (100%) of the Net Proceeds
derived from any issuance by Borrower of Equity Securities
minus (4) the net book value assigned to the Almo Warrants in
accordance with GAAP;
(iv) Its Leverage Ratio to be greater than 3.00 to
1.00 at any time;
(v) Commencing on the earlier to occur of (A) March
31, 2000 or (B) the last day of the fiscal quarter during
which a Capital Event occurs, its Senior Leverage Ratio to be
greater than 2.50 to 1.00 at any time;
(vi) Its Interest Coverage Ratio (A) for the three
quarter period beginning on April 1, 1998 and ending on
December 31, 1998 to be less than 2.00 to 1.00; and (B) for
any consecutive four-quarter period thereafter to be less than
2:00 to 1:00; or
(vii) Its Net Operating Income or Net Income After
Tax to be (1) a loss in excess of $350,000 for any quarter or
(2) a loss of any amount for any consecutive two-quarter
period.
29
SECTION VI. DEFAULT.
6.01. Events of Default. The occurrence or existence of any one or more
of the following shall constitute an "Event of Default" hereunder:
(a) Borrower shall fail to pay when due any principal,
interest or other payment required under the terms of this Restated
Credit Agreement or any of the other Credit Documents; or
(b) Borrower or any of its Subsidiaries shall fail to observe
or perform any covenant, obligation, condition or agreement set forth
in clause (v)(D) of Subparagraph 5.01(a), Subparagraph 5.01(c) (but
only to the extent Borrower denies such right to conduct inspections to
Collateral Agent acting on behalf of the Banks), Subparagraph 5.01(d)
or Paragraph 5.02; or
(c) Borrower or any of its Subsidiaries shall fail to observe
or perform any other covenant, obligation, condition or agreement
contained in this Restated Credit Agreement or the other Credit
Documents and such failure shall continue for ten (10) days; or
(d) Any representation, warranty, certificate, or other
statement (financial or otherwise) made or furnished by or on behalf of
Borrower or any of its Subsidiaries to any Agent or any Bank in or in
connection with this Restated Credit Agreement or any of the other
Credit Documents, or as an inducement to any Agent or any Bank to enter
into this Restated Credit Agreement, shall be false, incorrect,
incomplete or misleading in any material respect when made or
furnished; or
(e) Borrower or any of its Subsidiaries shall fail to make any
payment when due under the terms of any bond, debenture, note or other
evidence of Indebtedness to be paid by such Person (excluding this
Restated Credit Agreement and the other Credit Documents but including
any other evidence of Indebtedness of Borrower or any of its
Subsidiaries to any Bank) and such failure shall continue beyond any
period of grace provided with respect thereto, or shall default in the
observance or performance of any other agreement, term or condition
contained in any such bond, debenture, note or other evidence of
Indebtedness, and the effect of such failure or default is to cause, or
permit the holder or holders thereof to cause Indebtedness in an
aggregate amount of $200,000 or more to become due prior to its stated
date of maturity; or
(f) Borrower or any of its Subsidiaries shall (i) apply for or
consent to the appointment of a receiver, trustee, liquidator or
custodian of itself or of all or a substantial part of its property,
(ii) be unable, or admit in writing its inability, to pay its debts
generally as they mature, (iii) make a general assignment for the
benefit of its or any of its creditors, (iv) be dissolved or liquidated
in full or in part, (v) become insolvent (as such term may be defined
or interpreted under any applicable statute), (vi) commence a voluntary
case or other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy,
insolvency or other similar law now or
30
hereafter in effect or consent to any such relief or to the appointment
of or taking possession of its property by any official in an
involuntary case or other proceeding commenced against it, or (vi) take
any action for the purpose of affecting any of the foregoing; or
(g) Proceedings for the appointment of a receiver, trustee,
liquidator or custodian of Borrower or any of its Subsidiaries or of
all or a substantial part of the property thereof, or an involuntary
case or other proceedings seeking liquidation, reorganization or other
relief with respect to Borrower or any of its Subsidiaries or the debts
thereof under any bankruptcy, insolvency or other similar law now or
hereafter in effect shall be commenced and an order for relief entered
or such proceeding shall not be dismissed or discharged within sixty
(60) days of commencement; or
(h) A final judgment or order for the payment of money in
excess of $200,000 (exclusive of amounts covered by insurance issued by
an insurer not an Affiliate of Borrower) shall be rendered against
Borrower or any of its Subsidiaries and the same shall remain
undischarged and unpaid for a period of thirty (30) days during which
execution shall not be effectively stayed, or any judgment, writ,
assessment, warrant of attachment, or execution or similar process
shall be issued or levied against a substantial part of the property of
Borrower or any of its Subsidiaries and such judgment, writ, or similar
process shall not be released, stayed, vacated or otherwise dismissed
within thirty (30) days after issue or levy; or
(i) Any Credit Document or any material term thereof shall
cease to be, or be asserted by Borrower or any of its Subsidiaries not
to be, a legal, valid and binding obligation of Borrower or its
Subsidiaries enforceable in accordance with its terms; or
(j) Any Reportable Event occurs which constitutes grounds for
the termination of any Employee Benefit Plan by the PBGC or for the
appointment of a trustee to administer any Employee Benefit Plan, or
any Employee Benefit Plan shall be terminated within the meaning of
Title IV of ERISA or a trustee shall be appointed to administer any
Employee Benefit Plan; or
(k) One or more conditions exist or events have occurred which
might reasonably indicate, or reasonably result in, a Material Adverse
Effect.
6.02. Remedies. Upon the occurrence or existence of any Event of
Default (other than an Event of Default referred to in Subparagraph 6.01(f) or
6.01(g)) and at any time thereafter during the continuance of such Event of
Default, Administrative Agent may, with the consent of the Required Banks, or
shall, upon instructions from the Required Banks, by written notice to Borrower,
(a) terminate the Revolving Loan Commitments and the obligations of the Banks to
make Revolving Loans, and/or (b) declare all outstanding Obligations payable by
Borrower hereunder to be immediately due and payable without presentment,
demand, protest or any other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in the Notes to the contrary
notwithstanding. Upon the occurrence or existence of any Event of Default
described in Subparagraph 6.01(f) or 6.01(g), immediately and without notice,
(1) the Revolving
31
Loan Commitments and the obligations of the Banks and Issuing Bank to make
Revolving Loans shall automatically terminate and (2) all outstanding
Obligations payable by Borrower hereunder shall automatically become immediately
due and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived, anything contained herein or in
the Notes to the contrary notwithstanding. In addition to the foregoing
remedies, upon the occurrence or existence of any Event of Default,
Administrative Agent may exercise any right, power or remedy permitted to it by
law, either by suit in equity or by action at law, or both. Immediately after
taking any action under this Paragraph 6.02, Administrative Agent shall notify
each Bank of such action.
SECTION VII. THE AGENTS AND RELATIONS AMONG BANKS.
7.01. Appointment, Powers and Immunities. Each Bank hereby appoints and
authorizes Administrative Agent and Collateral Agent to act as its agent
hereunder and under the other Credit Documents with such powers as are expressly
delegated to Administrative Agent or Collateral Agent by the terms of this
Restated Credit Agreement and the other Credit Documents, together with such
other powers as are reasonably incidental thereto. Neither Administrative Agent
nor Collateral Agent shall have any duties or responsibilities except those
expressly set forth in this Restated Credit Agreement or in any other Credit
Document, be a trustee for any Bank or have any fiduciary duty to any Bank.
Notwithstanding anything to the contrary contained herein, neither
Administrative Agent nor Collateral Agent shall be required to take any action
which is contrary to this Restated Credit Agreement or any other Credit Document
or applicable law. Neither Administrative Agent nor Collateral Agent nor any
Bank shall be responsible to any other Agent or Bank for any recitals,
statements, representations or warranties made by Borrower or any Subsidiary
contained in this Restated Credit Agreement or in any other Credit Document, for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Restated Credit Agreement, or any other Credit Document or for any
failure by Borrower or any Subsidiary to perform their respective obligations
hereunder or thereunder. Administrative Agent and Collateral Agent may employ
agents and attorneys-in-fact and shall not be responsible to any other Agent or
Bank for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care. Neither Administrative Agent nor Collateral
Agent nor any of their respective directors, officers, employees or agents shall
be responsible to any other Agent or any Bank for any action taken or omitted to
be taken by it or them hereunder or under any other Credit Document or in
connection herewith or therewith, except for its or their own gross negligence
or willful misconduct. Except as otherwise provided under this Restated Credit
Agreement, Administrative Agent and Collateral Agent shall take such action with
respect to the Credit Documents as shall be directed by the Required Banks.
7.02. Reliance by Agents. Administrative Agent and Collateral Agent
shall be entitled to rely upon any certificate, notice or other document
(including any cable, telegram, facsimile or telex) reasonably believed by it in
good faith to be genuine and correct and to have been signed or sent by or on
behalf of the proper Person or Persons, and upon advice and statements of legal
counsel, independent accountants and other experts selected by Administrative
Agent and Collateral Agent with reasonable care. As to any other matters not
expressly provided for by this Restated Credit Agreement, neither Administrative
Agent nor Collateral Agent shall be required
32
to take any action or exercise any discretion, but shall be required to act or
to refrain from acting upon instructions of the Required Banks and shall in all
cases be fully protected by the Banks in acting, or in refraining from acting,
hereunder or under any other Credit Document in accordance with the instructions
of the Required Banks, and such instructions of the Required Banks and any
action taken or failure to act pursuant thereto shall be binding on all of the
Banks.
7.03. Defaults. Neither Administrative Agent nor any Collateral Agent
shall be deemed to have knowledge or notice of the occurrence of any Default or
Event of Default unless Administrative Agent and Collateral Agent have received
a notice from any other Agent, a Bank or Borrower, referring to this Restated
Credit Agreement, describing such Default or Event of Default and stating that
such notice is a "Notice of Default". If Administrative Agent or Collateral
Agent receives such a notice of the occurrence of a Default or Event of Default,
such Agent shall give prompt notice thereof to the other Agent and the Banks.
Administrative Agent and Collateral Agent shall take such action with respect to
such Default or Event of Default as shall be reasonably directed by the Required
Banks or all of the Banks if unanimity is required; provided, however, that
until Administrative Agent and Collateral Agent shall have received such
directions, Administrative Agent and Collateral Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as they shall deem advisable in the best
interest of the Banks.
7.04. Indemnification. Without limiting the Obligations of Borrower
hereunder, each Bank agrees to indemnify Administrative Agent and Collateral
Agent, ratably in accordance with their Proportionate Shares, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may at
any time be imposed on, incurred by or asserted against Administrative Agent and
Collateral Agent in any way relating to or arising out of this Restated Credit
Agreement or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or the enforcement of any of the
terms hereof or thereof or of any such other documents; provided, however, that
no Bank shall be liable for any of the foregoing to the extent they arise from
Administrative Agent's and/or Collateral Agent's gross negligence or willful
misconduct. Administrative Agent and Collateral Agent shall be fully justified
in refusing to take or to continue to take any action hereunder unless it shall
first be indemnified to its satisfaction by the Banks against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
7.05. Non-Reliance. Each Bank represents that it has, independently and
without reliance on Administrative Agent, Collateral Agent, or any other Bank,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of the financial condition and affairs of Borrower and the
Subsidiaries and decision to enter into this Restated Credit Agreement and
agrees that it will, independently and without reliance upon Administrative
Agent, Collateral Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
appraisals and decisions in taking or not taking action under this
33
Restated Credit Agreement. Neither Administrative Agent nor Collateral Agent nor
any Bank shall be required to keep informed as to the performance or observance
by Borrower or any Subsidiary of the obligations under this Restated Credit
Agreement or any other document referred to or provided for herein or to make
inquiry of, or to inspect the properties or books of Borrower or any Subsidiary.
Except for notices, reports and other documents and information expressly
required to be furnished to the Banks by Administrative Agent and/or Collateral
Agent hereunder, neither Administrative Agent nor Collateral Agent nor any Bank
shall have any duty or responsibility to provide any other Agent or any Bank
with any credit or other information concerning Borrower or any Subsidiary,
which may come into the possession of any Agent, or such Bank or any of its or
their Affiliates. Administrative Agent and Collateral Agent shall provide each
Bank with copies of any Credit Documents and any other documents, instruments
and agreements delivered to Administrative Agent and/or Collateral Agent in
connection therewith requested by such Bank.
7.06. Resignation or Removal of Administrative Agent. Subject to the
appointment and acceptance of a successor Administrative Agent as provided
below, Administrative Agent may resign at any time by giving notice thereof to
the Banks, and Administrative Agent may be removed at any time with or without
cause by the Required Banks. Upon any such resignation or removal, the Required
Banks shall have the right to appoint a successor Administrative Agent, which
Administrative Agent shall be reasonably acceptable to Borrower. If no successor
Administrative Agent shall have been appointed by the Required Banks and shall
have accepted such appointment within thirty (30) days after the retiring
Administrative Agent's giving of notice of resignation or the Required Banks'
removal of the retiring Administrative Agent, then the retiring Administrative
Agent may, on behalf of the Banks, appoint a successor Administrative Agent,
which shall be a bank having a combined capital, surplus and retained earnings
of not less than U.S. $250,000,000 and which shall be reasonably acceptable to
Borrower. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder. After any retiring Administrative Agent's resignation or removal
hereunder as Administrative Agent, the provisions of this Section VII shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
7.07. Resignation or Removal of Collateral Agent. Subject to the
appointment and acceptance of a successor Collateral Agent as provided below,
Collateral Agent may resign at any time by giving notice thereof to
Administrative Agent and the Banks, and Collateral Agent may be removed at any
time with or without cause by the Required Banks. Upon any such resignation or
removal, the Required Banks shall have the right to appoint a successor
Collateral Agent, which Collateral Agent shall be reasonably acceptable to
Borrower. If no successor Collateral Agent shall have been appointed by the
Required Banks and shall have accepted such appointment within thirty (30) days
after the retiring Collateral Agent's giving of notice of resignation or the
Required Banks' removal of the retiring Collateral Agent, then Administrative
Agent may, on behalf of the Banks, appoint a successor Collateral Agent, which
shall be a Bank under this Agreement and which shall be reasonably acceptable to
Borrower. Upon the acceptance of any appointment as Collateral Agent hereunder
by a successor Collateral Agent, such successor Collateral Agent shall thereupon
succeed to and become vested with all the rights,
34
powers, privileges and duties of the retiring Collateral Agent, and the retiring
Collateral Agent shall be discharged from its duties and obligations hereunder.
After any retiring Collateral Agent's resignation or removal hereunder as
Collateral Agent, the provisions of this Section VII shall continue in effect
for its benefit in respect of any actions taken or omitted to be taken by it
while it was acting as Collateral Agent.
7.08. Agents in their Individual Capacity. Each Agent and its
affiliates may make loans to, accept deposits from and generally engage in any
kind of business with Borrower and its Subsidiaries and affiliates as though
such Agent were not an Agent hereunder. With respect to Revolving Loans made, if
any, by CB&T or UBOC as a Bank, CB&T and UBOC shall have the same rights and
powers under this Restated Credit Agreement and the other Credit Documents as
any other Bank and may exercise the same as though it were not an Agent, and the
terms "Bank" or "Banks" shall include CB&T and UBOC in their individual
capacity.
7.09. Co-Agents. None of the Banks identified herein as a "co-agent"
shall have any right, power, obligation, liability, responsibility or duty under
this Restated Credit Agreement or any other Credit Document other than those
applicable to all Banks as such. Without limiting the foregoing, none of the
Banks so identified as a "co-agent" shall have or be deemed to have any
fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks identified as a "co-agent" in
deciding to enter into this Restated Credit Agreement or in taking or not taking
action hereunder.
SECTION VIII. MISCELLANEOUS.
8.01. Notices. Except as otherwise provided herein, all notices,
requests, demands, consents, instructions or other communications to or upon
Borrower, any Bank or any Agent under this Restated Credit Agreement or the
other Credit Documents shall be in writing and faxed, mailed or delivered, if to
Borrower, Administrative Agent or Collateral Agent, at its respective facsimile
number or address set forth below, if to any Bank, at the address or facsimile
number specified beneath the heading "Address for Notices" under the name of
such Bank in Schedule I (or to such other facsimile number or address for any
party as indicated in any notice given by that party to the other party). All
such notices and communications shall be effective (a) when sent by Federal
Express or other overnight service of recognized standing, on the Business Day
following the deposit with such service; (b) when mailed, first class postage
prepaid and addressed as aforesaid through the United States Postal Service,
upon receipt; (c) when delivered by hand, upon delivery; and (d) when sent by
facsimile, upon confirmation of receipt; provided, however, that any notice
delivered to Administrative Agent under Section II shall not be effective until
received by Administrative Agent.
35
Administrative Agent: California Bank & Trust
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Relationship Manager - Xxxx
Microproducts
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Collateral Agent: Union Bank of California, N.A.
Northern California Commercial Banking Group
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Lebbeus Case
Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Borrower: Xxxx Microproducts Inc.
0000 Xxxxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xx. Xxxxx Xxxxx
Senior Vice President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each Notice of Revolving Loan Borrowing, Notice of Revolving Loan Conversion or
Notice of Revolving Loan Interest Period Selection (or copy thereof, as the case
may be) shall be given by Borrower to Administrative Agent's office located at
the address referred to above during Administrative Agent's normal business
hours; provided, however, that any such notice received by Administrative Agent
after 12:00 noon on any Business Day shall be deemed received by Administrative
Agent on the next Business Day. In any case where this Restated Credit Agreement
authorizes notices, requests, demands or other communications by Borrower to any
Agent or any Bank to be made by telephone or facsimile, such Agent or Bank may
conclusively presume that anyone purporting to be a person designated in any
incumbency certificate or other similar document received by such Agent or Bank
is such a person.
8.02. Expenses. Borrower shall pay within thirty (30) days of a written
demand therefor, whether or not any Revolving Loan is made hereunder, (a) all
reasonable fees and expenses, including reasonable attorneys' fees and expenses,
incurred by any Agent in connection with the preparation, execution and delivery
of, and the exercise of its duties under, this Restated Credit Agreement and the
other Credit Documents, and the preparation, execution and delivery of
amendments and waivers hereunder and thereunder, (b) all reasonable fees and
expenses, including reasonable attorneys' fees and expenses, incurred by any
Agent in connection with the exercise of its duties (including permitted audits
and inspections) under this Restated Credit Agreement and the other Credit
Documents, and (c) all reasonable fees and
36
expenses, including reasonable attorneys' fees and expenses, incurred by any
Agent and the Banks in the enforcement or attempted enforcement of any of the
Obligations or in preserving any of the Agent's or the Banks' rights and
remedies (including, without limitation, all such fees and expenses incurred in
connection with any "workout" or restructuring affecting the Credit Documents or
the Obligations or any bankruptcy or similar proceeding involving Borrower or
any of its Subsidiaries). As used herein, the term "reasonable attorneys' fees
and expenses" shall include, without limitation, allocable costs and expenses of
each Agent's and each Bank's in-house legal counsel and staff.
8.03. Indemnification. To the fullest extent permitted by law, Borrower
agrees to protect, indemnify, defend and hold harmless Agents and the Banks and
their respective directors, officers, employees, agents and any affiliate
thereof ("Indemnitees") from and against any liabilities, losses, damages or
expenses of any kind or nature and from any suits, claims or demands (including
in respect of or for reasonable attorney's fees and other expenses) arising on
account of or in connection with any matter or thing or action or failure to act
by Indemnitees, or any of them, arising out of or relating to the Credit
Documents, including without limitation any use by Borrower of any proceeds of
the Revolving Loans, except to the extent such liability arises from the willful
misconduct or gross negligence of (a) any Agent acting on behalf of the Banks or
(b) such Indemnitee. Upon receiving knowledge of any suit, claim or demand
asserted by a third party that any Agent or any Bank believes is covered by this
indemnity, such Agent or such Bank shall give Borrower notice of the matter and
an opportunity to defend it, at Borrower's sole cost and expense, with legal
counsel satisfactory to such Agent or such Bank, as the case may be. Such Agent
or such Bank may also require Borrower to defend the matter. Any failure or
delay of any Agent or any Bank to notify Borrower of any such suit, claim or
demand shall not relieve Borrower of its obligations under this Paragraph 8.03
but shall reduce such obligations to the extent of any increase in those
obligations caused solely by an such unreasonable failure or delay. The
obligations of Borrower under this Paragraph 8.03 shall survive the payment and
performance of the Obligations.
8.04. Waivers; Amendments. Any term, covenant, agreement or condition
of this Restated Credit Agreement or any other Credit Document may be amended or
waived if such amendment or waiver is in writing and is signed by Borrower and
the Required Banks; provided, however that:
(a) Any amendment, waiver or consent which (i) increases the
Total Revolving Loan Commitment, (ii) extends the Revolving Loan
Maturity Date, (iii) reduces the principal of or interest on any
Revolving Loan or any fees or other amounts payable for the account of
the Banks hereunder, (iv) postpones any date fixed for any payment of
the principal of or interest on any Revolving Loans or any fees or
other amounts payable for the account of the Banks hereunder or
thereunder, (v) amends this Paragraph 8.04, (vi) amends the definition
of Borrowing Base, Eligible Accounts, Eligible Inventory or Required
Banks, (vii) releases any part of the Collateral other than an
immaterial part of the Collateral, (viii) releases any Guarantor from
its Guaranty or decreases the amount of the obligations guaranteed by
such Guarantor under its Guaranty, or (ix) amends Subparagraph 5.02(m)
must be in writing and signed by all Banks;
37
(b) Any amendment, waiver or consent which increases or
decreases the Revolving Loan Commitment or Proportionate Share of any
Bank must be in writing and signed by such Bank; and
(c) Any amendment, waiver or consent which affects the rights
of any Agent must be in writing and signed by such Agent.
No failure or delay by any Agent or any Bank in exercising any right hereunder
shall operate as a waiver thereof or of any other right nor shall any single or
partial exercise of any such right preclude any other further exercise thereof
or of any other right. Unless otherwise specified in such waiver or consent, a
waiver or consent given hereunder shall be effective only in the specific
instance and for the specific purpose for which given.
8.05. Successors and Assigns.
(a) Binding Effect. This Restated Credit Agreement and the
other Credit Documents shall be binding upon and inure to the benefit
of Borrower, the Banks, the Agents, all future holders of the Revolving
Loan Notes and their respective successors and permitted assigns,
except that Borrower may not assign or transfer any of its rights or
obligations under any Credit Document without the prior written consent
of the Agents and each Bank. All references in this Restated Credit
Agreement to any Person shall be deemed to include all successors and
assigns of such Person.
(b) Participations. Any Bank may, in the ordinary course of
its commercial banking business and in accordance with applicable law,
at any time sell to one or more banks or other financial institutions
("Participants") participating interests in any Revolving Loan owing to
such Bank, any Revolving Loan Note held by such Bank, any Revolving
Loan Commitment of such Bank or any other interest of such Bank under
this Restated Credit Agreement and the other Credit Documents without
the consent of any other party hereto; provided, however, that a Bank
may not sell a participation which would increase the Taxes payable by
Borrower under Paragraph 2.10 without the consent of Borrower. In the
event of any such sale by a Bank of participating interests to a
Participant, such Bank's obligations under this Restated Credit
Agreement to the other parties to this Restated Credit Agreement shall
remain unchanged, such Bank shall remain solely responsible for the
performance thereof, such Bank shall remain the holder of any such
Revolving Loan Note for all purposes under this Restated Credit
Agreement and Borrower and the Agents shall continue to deal solely and
directly with such Bank in connection with such Bank's rights and
obligations under this Restated Credit Agreement; provided, however,
that any agreement pursuant to which any Bank sells a participating
interest to a Participant may require the selling Bank to obtain the
consent of such Participant in order for such Bank to agree in writing
to any amendment of a type specified in clause (a)(i), (a)(ii),
(a)(iii) or (a)(iv) of Paragraph 8.04. Borrower also agrees that any
Bank which has transferred all or part of its interests in the
Revolving Loan Commitments and the Revolving Loans to one or more
Participants shall, notwithstanding any such transfer, be entitled to
the full benefits accorded such Bank
38
under Paragraph 2.09, Paragraph 2.10, and Paragraph 2.11, as if such
Bank had not made such transfer.
(c) Assignments. Any Bank may, in the ordinary course of its
commercial banking business and in accordance with applicable law, at
any time, sell and assign to any Bank, any affiliate of a Bank or any
other bank or financial institution (individually, an "Assignee Bank")
all or a portion of its rights and obligations under this Restated
Credit Agreement and the other Credit Documents (such a sale and
assignment to be referred to herein as an "Assignment") pursuant to an
assignment agreement in the form of Exhibit L (an "Assignment
Agreement"), executed by each Assignee Bank and such assignor Bank (an
"Assignor Bank") and delivered to Administrative Agent for its
acceptance and recording in the Register; provided, however, that:
(i) Without the written consent of Borrower and
Administrative Agent (which consent of Borrower and
Administrative Agent shall not be unreasonably withheld), no
Bank may make any Assignment to any Assignee Bank which is
not, immediately prior to such Assignment, a Bank hereunder or
an affiliate which controls, is controlled by or is under
common control with a Bank hereunder;
(ii) Without the written consent of Borrower and
Administrative Agent (which consent of Borrower and
Administrative Agent shall not be unreasonably withheld), no
Bank may make any Assignment to any Assignee Bank unless,
after giving effect to such Assignment, (A) the Revolving Loan
Commitment of the Assignee Bank is $5,000,000 or an integral
multiple thereof and (B) the Revolving Loan Commitment of the
Assignor Bank is either (1) $0, if the Assignor Bank has
assigned its entire Revolving Loan Commitment, or (2)
$5,000,000 or an integral multiple thereof, if the Assignor
Bank has assigned less than its entire Revolving Loan
Commitment; and
(iii) No Bank may make any Assignment which does not
assign and delegate an equal pro rata interest in such Bank's
Revolving Loans, Revolving Loan Commitment and all other
rights, duties and obligations of such Bank under this
Restated Credit Agreement and the other Credit Documents.
Upon such execution, delivery, acceptance and recording of each
Assignment Agreement, from and after the Assignment Effective Date
determined pursuant to such Assignment Agreement, (A) each Assignee
Bank thereunder shall be a Bank hereunder with a Revolving Loan
Commitment as set forth on Attachment 1 to such Assignment Agreement
and shall have the rights, duties and obligations of such a Bank under
this Restated Credit Agreement and the other Credit Documents, and (B)
the Assignor Bank thereunder shall be a Bank with a Revolving Loan
Commitment as set forth on Attachment 1 to such Assignment Agreement,
or, if the Revolving Loan Commitment of the Assignor Bank has been
reduced to $0, the Assignor Bank shall cease to be a Bank; provided,
however, that any such Assignor Bank which ceases to be a Bank shall
continue to be entitled to the benefits of any provision of this
Restated Credit Agreement
39
which by its terms survives the termination of this Restated Credit
Agreement. Each Assignment Agreement shall be deemed to amend Schedule
I to the extent, and only to the extent, necessary to reflect the
addition of each Assignee Bank, the deletion of each Assignor Bank
which reduces its Revolving Loan Commitment to $0, and the resulting
adjustment of Revolving Loan Commitments arising from the purchase by
each Assignee Bank of all or a portion of the rights and obligations of
an Assignor Bank under this Restated Credit Agreement and the other
Credit Documents. On or prior to the Assignment Effective Date
determined pursuant to each Assignment Agreement, Borrower, at Assignor
Bank's expense, shall execute and deliver to Administrative Agent, in
exchange for the surrendered Revolving Loan Note of the Assignor Bank
thereunder, a new Revolving Loan Note to the order of each Assignee
Bank thereunder (with each new Revolving Loan Note to be in an amount
equal to the Revolving Loan Commitment assumed by such Assignee Bank)
and, if the Assignor Bank is continuing as a Bank hereunder, a new
Revolving Loan Note to the order of the Assignor Bank (with the new
Revolving Loan Note to be in an amount equal to the Revolving Loan
Commitment retained by it). Each such new Revolving Loan Note shall be
dated the Effective Date and otherwise be in the form of the Revolving
Loan Note replaced thereby (provided that Borrower shall not be
obligated to pay any additional interest to any Assignee Bank in
respect of any principal payments made prior to the Effective Date of
the Assignment to such Assignee Bank). The Revolving Loan Notes
surrendered by the Assignor Bank shall be returned by Administrative
Agent to Borrower marked "replaced". Each Assignee Bank which was not
previously a Bank hereunder and which is not incorporated under the
laws of the United States of America or a state thereof shall, within
three (3) Business Days of becoming a Bank, deliver to Borrower and
Administrative Agent two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224 (or successor applicable
form), as the case may be, certifying in each case that such Bank is
entitled to receive payments under this Restated Credit Agreement
without deduction or withholding of any United States federal income
taxes.
(d) Register. Administrative Agent shall maintain at its
address referred to in Paragraph 8.01 a copy of each Assignment
Agreement delivered to it and a register (the "Register") for the
recordation of the names and addresses of the Banks and the Revolving
Loan Commitments of each Bank from time to time. The entries in the
Register shall be conclusive in the absence of manifest error, and
Borrower, Administrative Agent and the Banks may treat each Person
whose name is recorded in the Register as the owner of the Revolving
Loans recorded therein for all purposes of this Restated Credit
Agreement. The Register shall be available for inspection by Borrower
or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(e) Registration. Upon its receipt of an Assignment Agreement
executed by an Assignor Bank and an Assignee Bank (and, to the extent
required by Subparagraph 8.05(c), by Borrower and Administrative
Agent), together with payment to Administrative Agent by the Assignor
Bank of a registration and processing fee of $2,500, Administrative
Agent shall (i) promptly accept such Assignment Agreement and (ii) on
the Effective Date of the Assignment determined pursuant thereto record
the
40
information contained therein in the Register and give notice of such
acceptance and recordation to the Banks and Borrower. Administrative
Agent may, from time to time at its election, prepare and deliver to
the Banks and Borrower a revised Schedule I reflecting the names,
addresses and respective Revolving Loan Commitments of all Banks then
parties hereto.
(f) Collateral Security. Notwithstanding any other provision
contained in this Restated Credit Agreement and any other Credit
Document to the contrary, any Bank may assign all or any portion of the
Revolving Loans held by it to any Federal Reserve Bank or the United
States Treasury as collateral security, provided that any payment in
respect of such assigned Revolving Loan made by Borrower to or for the
account of the assigning or pledging Bank in accordance with the terms
of this Restated Credit Agreement shall satisfy Borrower's obligations
hereunder in respect of such assigned Revolving Loans to the extent of
such payment. No such assignment shall release the assigning Bank from
its obligations hereunder.
(g) Confidentiality. The Agents and the Banks may disclose the
Credit Documents and any financial or other information relating to
Borrower or any Subsidiary to each other or to any Participant or
Assignee Bank or potential Participant or Assignee Bank which is not a
direct competitor of Borrower and which agrees in writing to maintain
the confidentiality thereof in accordance with safe and sound banking
practices.
8.06. Setoff; Security Interest.
(a) Setoff. In addition to any rights and remedies of the
Banks provided by law, each Bank shall have the right without prior
notice to Borrower, any such notice being expressly waived by Borrower
to the extent permitted by applicable law, upon the occurrence and
during the continuance of a Default or an Event of Default, to set-off
and apply against any Obligations of Borrower to such Bank which are
then due and payable, any amount owing from such Bank to Borrower, at
or at any time after, the happening of any of the above mentioned
events, and as security for such Obligations, Borrower hereby grants to
each Bank a continuing security interest in any and all deposits,
accounts or moneys of Borrower then or thereafter maintained with such
Bank, subject in each case to Subparagraph 2.08(b). The aforesaid right
of set-off may be exercised by such Bank against Borrower or against
any trustee in bankruptcy, debtor in possession, assignee for the
benefit of creditors, receiver or execution, judgment or attachment
creditor of Borrower or against anyone else claiming through or against
Borrower or such trustee in bankruptcy, debtor in possession, assignee
for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of
set-off shall not have been exercised by such Bank prior to the
occurrence of a Default or an Event of Default. Each Bank agrees
promptly to notify Borrower after any such set-off and application made
by such Bank, provided that the failure to give such notice shall not
affect the validity of such set-off and application.
41
(b) Security Interest. As security for the Obligations,
Borrower hereby grants to each Bank, for the benefit of all Banks, a
continuing security interest in any and all deposit accounts or moneys
of Borrower now or hereafter maintained with such Bank. Each Bank shall
have all of the rights of a secured party with respect to such security
interest.
8.07. No Third Party Rights. Nothing expressed in or to be implied from
this Restated Credit Agreement is intended to give, or shall be construed to
give, any Person, other than the parties hereto and their permitted successors
and assigns hereunder, any benefit or legal or equitable right, remedy or claim
under or by virtue of this Restated Credit Agreement or under or by virtue of
any provision herein.
8.08. Partial Invalidity. If at any time any provision of this Restated
Credit Agreement is or becomes illegal, invalid or unenforceable in any respect
under the law or any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of this Restated Credit Agreement nor
the legality, validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
8.09. Arbitration.
(a) This Paragraph 8.09 concerns the resolution of any
controversies or claims between or among Borrower, any Bank and any
Agent, including but not limited to those that arise from:
(i) This Restated Credit Agreement or any other
Credit Document;
(ii) Any violation of this Restated Credit Agreement
or any other Credit Document; or
(iii) Any claims for damages resulting from any
business conducted between Borrower and any Bank or any Agent,
including claims for injury to persons, property or business
interests.
(b) At the request of Borrower, any Bank or any Agent, any
controversies or claims will be settled by arbitration in accordance
with the United States Arbitration Act. The United States Arbitration
Act will apply even though this Restated Credit Agreement provides that
it is governed by California law.
(c) Arbitration proceedings will be administered by the
American Arbitration Association and will be subject to its commercial
rules of arbitration. The arbitration will be conducted within the
California county of San Francisco. Borrower, the Banks and any Agent
expressly agree that the arbitrator(s) (i) shall apply contract law and
(ii) shall not be empowered to make any award which a California court
is not empowered to make or any award for punitive damages.
42
(d) For purposes of the application of the statute of
limitations, the filing of an arbitration pursuant to this paragraph is
the equivalent of the filing of a lawsuit, and any claim or controversy
which may be arbitrated under this paragraph is subject to any
applicable statute of limitations. The arbitrators will have the
authority to decide whether any such claim or controversy is barred by
the statute of limitations and if so to dismiss the arbitration on that
basis.
(e) If there is a dispute as to whether an issue is
arbitrable, the arbitrators will have the authority to resolve any such
dispute.
(f) The decision that results from an arbitration proceeding
may be submitted to any authorized court of law to be confirmed and
enforced.
(g) The procedure described above will not apply if the
controversy or claim, at the time of the proposed submission to
arbitration arises from or relates to an obligation to Bank secured by
real property located in California. If the obligation is secured by
real property, Borrower, each Bank and each Agent must consent to
submission of the claim or controversy to arbitration. If all parties
do not consent to arbitration, the controversy or claim will be settled
as follows:
(i) Borrower, the Banks and the Agents will designate
a referee (or a panel of referees) selected under the auspices
of the American Arbitration Association in the same manner as
arbitrators are selected in Association-sponsored proceedings;
(ii) The designated referee (or the panel of
referees) will be appointed by a court as provided in
California Code of Civil Procedure Section 638 and the
following related sections;
(iii) The referee (or the presiding referee of the
panel) will be an active attorney or a retired judge; and
(iv) The award that results from the decision of the
referee (or the panel) will be entered as a judgment in the
court that appointed the referee, in accordance with the
provisions of California Code of Civil Procedure Sections 644
and 645.
(h) This Paragraph 8.09 does not limit the right of Borrower,
any Bank or any Agent to:
(i) Exercise self-help remedies such as setoff;
(ii) Foreclose against or sell any real or personal
property collateral; or
(iii) Take action in a court of law, before, during
or after the arbitration proceeding to obtain an interim
remedy or additional or supplementary remedies.
43
(i) The pursuit of or a decision in an action for interim,
additional or supplementary remedies, or the filing of a court action,
does not constitute a waiver of the right of Borrower, any Bank or any
Agent, including the suing party, to submit the controversy or claim to
arbitration.
8.10. Jury Trial. EACH OF BORROWER, THE BANKS AND THE AGENTS, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT
TO TRIAL BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING, OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS RESTATED CREDIT AGREEMENT OR ANY
OTHER CREDIT DOCUMENT NOT RESOLVED PURSUANT TO PARAGRAPH 8.09.
8.11. Counterparts. This Restated Credit Agreement may be executed in
any number of identical counterparts, any set of which signed by all the parties
hereto shall be deemed to constitute a complete, executed original for all
purposes.
SECTION IX. EFFECTIVE DATE OF RESTATED CREDIT AGREEMENT.
9.01. Effective Date. This Restated Credit Agreement shall become
effective on a Business Day on or prior to November 12, 1998 as designated by
Borrower in a written notice to Administrative Agent (the "Effective Date"),
subject to receipt by Administrative Agent (a) at least three (3) Business days
prior to the Effective Date of Borrower's written notice designating the
Effective Date and (b) on or prior to the Effective Date, of each item listed in
Schedule 3.01, each in form and substance reasonably satisfactory to the Banks,
and with sufficient copies for, each Agent and each Bank.
9.02. Loans Under Existing Credit Agreement. On the Effective Date, all
loans outstanding under the Existing Credit Agreement shall be deemed to be
Revolving Loans made by each of the Banks under this Restated Credit Agreement,
and all accrued unpaid interest thereon shall begin to accrue interest at the
rates set forth in this Restated Credit Agreement.
9.03. Effect. On and after the Effective Date, this Restated Credit
Agreement, the Borrower Security Agreement and the Borrower Pledge Agreement
shall amend, restate in their entirety and replace, without novation, the
Existing Credit Agreement, the Amended and Restated Security Agreement dated as
of May 23, 1995 executed by Borrower in favor of Administrative Agent (the
"Existing Borrower Security Agreement") and the Amended and Restated Pledge
Agreement dated as of May 23, 1995 executed by Borrower in favor of
Administrative Agent (the "Existing Borrower Pledge Agreement"), respectively;
provided, however, that the execution and delivery of this Restated Credit
Agreement, the Borrower Security Agreement and the Borrower Pledge Agreement and
the other Credit Documents shall not (a) operate as a waiver of any right, power
or remedy of the Banks under the Existing Credit Agreement, the Existing
Security Agreement or the Existing Pledge Agreement, except to the extent
expressly waived in this Restated Credit Agreement, the Borrower Security
Agreement, the Borrower Pledge Agreement or the other Credit Documents, or (b)
extinguish or impair any obligations of Borrower under the Existing Credit
Agreement, the Existing Security Agreement
44
or the Existing Pledge Agreement except to the extent any such obligation is
actually satisfied by Borrower.
[The next page is the signature page]
45
IN WITNESS WHEREOF, Borrower, the Banks, Administrative Agent and
Collateral Agent have caused this Restated Credit Agreement to be executed as of
the day and year first above written.
BORROWER: XXXX MICROPRODUCTS INC.
By: _______________________________
Name:
Title:
ADMINISTRATIVE AGENT: CALIFORNIA BANK & TRUST,
As Administrative Agent
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
COLLATERAL AGENT: UNION BANK OF CALIFORNIA, N.A.
As Collateral Agent
By: _______________________________
Name:
Title:
BANKS: CALIFORNIA BANK & TRUST,
As a Bank
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
00
XXXXX XXXX XX XXXXXXXXXX, N.A.
By: _______________________________
Name:
Title:
SANWA BANK CALIFORNIA,
As a Bank
By: _______________________________
Name:
Title:
COMERICA BANK-CALIFORNIA,
As a Bank
By: _______________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
As a Bank
By: _______________________________
Name:
Title:
By: _______________________________
Name:
Title:
SCHEDULE I
BANKS
Revolving Loan Revolving Loan
Commitment during Increased Commitment at all Other
Bank Commitment Period Times
---- ----------------- -----
CALIFORNIA BANK & TRUST $32,000,000 $30,000,000
Applicable Lending Office:
-------------------------
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Address for Notices:
--------------------
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Relationship Manager
Xxxx Microproducts
Telephone: (000) 000-0000
Facsimile (000) 000-0000
UNION BANK OF CALIFORNIA, N.A. $32,000,000 $30,000,000
Applicable Lending Office:
-------------------------
00 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Address for Notices:
Northern California Commercial
Banking Group
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Lebbeus Case
Vice President
Telephone: (000) 000-0000
Facsimile (000) 000-0000
I-1
COMERICA BANK - CALIFORNIA $32,000,000 $30,000,000
Applicable Lending Office:
-------------------------
California Corporate Banking
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Address for Notices:
--------------------
California Corporate Banking
000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile (000) 000-0000
SANWA BANK CALIFORNIA $22,000,000 $20,000,000
Applicable Lending Office:
-------------------------
San Xxxx CBC
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000-0000
Address for Notices:
--------------------
000 Xxxxxxx Xxxxxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile (000) 000-0000
I-2
U.S. BANK NATIONAL ASSOCIATION $22,000,000 $20,000,000
Applicable Lending Office:
-------------------------
U.S. Bank National Association
Corporate Banking Center
0000 Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Address for Notices:
--------------------
U.S. Bank National Association
California Corporate Banking
0000 Xxxxx Xxxx Xxxxxx
Xxxxxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile (000) 000-0000
I-3
SCHEDULE II
PRICING GRID
XXXXX 0 XXXXX 0 XXXXX 0
PERIOD PERIOD PERIOD
APPLICABLE MARGINS: 1.45% 1.65% 1.85%
EXPLANATION
1. The Applicable Margin for each Revolving LIBOR Loan will be set for
each Pricing Period and will vary depending upon whether such period is
a Level 1 Period, a Level 2 Period or a Level 3 Period.
2. The first Pricing Period, which commences on the Effective Date and
ends on February 28, 1999, will be a Level 3 Period.
3. Each Pricing Period thereafter will be a Level 1 Period, a Level 2
Period or a Level 3 Period depending upon Borrower's Leverage Ratio (as
calculated pursuant to the definition of "Leverage Ratio" set forth in
Schedule 1.01) for the most recent fiscal quarter period ending prior
to the first day of such Pricing Period as follows:
(a) If, during any Pricing Period, Borrower's Leverage Ratio is
less than 2.00 to 1.00, Borrower's pricing will be a Level 1
Period.
(b) If, during any Pricing Period, Borrower's Leverage Ratio is
greater than or equal to 2.00 to 1.00 but less than or equal
to 2.50 to 1.00, Borrower's pricing will be a Level 2 Period.
(c) If, during any Pricing Period, Borrower's Leverage Ratio is
greater than 2.50 to 1.00, Borrower's pricing will be a Level
3 Period.
II-1
SCHEDULE 1.01
DEFINITIONS
"Adjusted Net Income" shall mean, with respect to any Person for any
period, the sum, determined on a consolidated basis in accordance with GAAP, of
the following:
(a) The net income or net loss of such Person and its
Subsidiaries for such period before provision for income taxes or
interest;
minus
(b) The sum of (i) all extraordinary and non-recurring income
of such Person and its Subsidiaries accruing during such period (to the
extent added in calculating net income or loss in clause (a) above) and
(ii) all dividends paid or declared by such Person and its Subsidiaries
during such period (except for dividends paid or payable to such Person
or any of its wholly-owned Subsidiaries).
"Adjusted Total Liabilities" shall mean, with respect to any Person for
any period, the sum of the following:
(a) The total liabilities of such Person and its Subsidiaries
(determined on a consolidated basis in accordance with GAAP);
plus
(b) To the extent not included in clause (a) above, all
liabilities of such Person and its Subsidiaries under or with respect
to (i) Synthetic Leases and (ii) letters of credit, banker's
acceptances or other similar facilities.
"Administrative Agent" shall have the meaning given to that term in
clause (3) of the introductory paragraph hereof.
"Affiliate" shall mean, with respect to any Person, (a) each Person
that, directly or indirectly, owns or controls, whether beneficially or as a
trustee, guardian or other fiduciary, five percent (5%) or more of any class of
Equity Securities of such Person, (b) each Person that controls, is controlled
by or is under common control with such Person or any Affiliate of such Person
or (c) each of such Person's employees, officers, directors, joint venturers and
partners; provided, however, that in no case shall any Agent or any Bank be
deemed to be an Affiliate of Borrower or any of its Subsidiaries for purposes of
this Restated Credit Agreement. For the purpose of this definition, "control" of
a Person shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise.
"Agents" shall mean Administrative Agent and Collateral Agent.
1.01-1
"Agent's Fee Letter" shall mean the letter agreement dated as of the
date hereof among Borrower, Administrative Agent and the co-agents.
"Almo" shall mean Almo corporation, a Pennsylvania corporation.
"Almo Warrant" shall mean, collectively, the warrants issued by
Borrower to Almo in connection with Borrower's acquisition of substantially all
of the assets of Almo's computer products division entitling Almo or any
subsequent holder thereof to convert such warrants into no more than 350,000
shares of Equity Securities issued by Borrower.
"Applicable Lending Office" shall mean, with respect to any Bank, (a)
initially, its office designated as such in Schedule I (or, in the case of any
Bank which becomes a Bank by an Assignment pursuant to Subparagraph 8.05(c), its
office designated as such in the applicable Assignment Agreement) and (b)
subsequently, such other office or offices of such Bank may designate to
Administrative Agent as the office at which such Bank's Revolving Loans will
thereafter be maintained and for the account of which all payments of principal
of, and interest on, such Bank's Revolving Loans will thereafter be made.
"Applicable Margin" shall mean, with respect to any Revolving LIBOR
Loan at any time, the per annum margin which is determined pursuant to the
Pricing Grid and added to the LIBO Rate for such Revolving LIBOR Loan. The
Applicable Margins shall be determined as provided in the Pricing Grid and may
change for each Pricing Period.
"Assignee Bank" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment" shall have the meaning given to that term in Subparagraph
8.05(c).
"Assignment Agreement" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Assignment Effective Date" shall have, with respect to each Assignment
Agreement, the meaning set forth therein.
"Assignor Bank" shall have the meaning given to that term in
Subparagraph 8.05(c).
"Banks" shall have the meaning given to that term in clause (2) of the
introductory paragraph hereof.
"Xxxx Canada" shall mean Xxxx Microproducts Canada Inc., a California
corporation and a wholly-owned Subsidiary of Borrower.
"Xxxx Canada Guaranty" shall have the meaning given to that term in
Subparagraph 2.12(a).
"Xxxx Canada Pledge Agreement" shall have the meaning given to that
term in Subparagraph 2.12(b).
1.01-2
"Bell-Tenex" shall mean Xxxx Microproducts Canada-Tenex Data ULC, a
Nova Scotia, Canada unlimited liability company and a wholly-owned Subsidiary of
Xxxx Canada.
"Bell-Tenex Canadian Security Documents" shall have the meaning given
to that term in Subparagraph 2.12(b).
"Xxxx-Tenex Guaranty" shall have the meaning given to that term in
Subparagraph 2.12(b).
"Xxxx-Tenex Security Agreement" shall have the meaning given to that
term in Subparagraph 2.12(b).
"Borrower" shall have the meaning given to that term in clause (1) of
the introductory paragraph hereof.
"Borrower Pledge Agreement" shall have the meaning given to that term
in Subparagraph 2.12(a).
"Borrower Security Agreement" shall have the meaning given to that term
in Subparagraph 2.12(a).
"Borrowing Base" shall have the meaning given to that term in
Subparagraph 2.02(a).
"Borrowing Base Certificate" shall have the meaning given to that term
in Subparagraph 5.01(a).
"Business Day" shall mean any day on which (a) commercial banks are not
authorized or required to close in San Francisco, California or New York, New
York and (b) if such Business Day is related to a Revolving LIBOR Loan, dealings
in Dollar deposits are carried out in the London interbank market.
"Capital Adequacy Requirement" shall have the meaning given to that
term in Subparagraph 2.09(d).
"Capital Asset" shall mean, with respect to any Person, tangible
property owned or leased (in the case of a Capital Lease) by such Person, or any
expense incurred by any Person that is required by GAAP to be reported as an
asset on such Person's balance sheet.
"Capital Event" shall mean the sale or issuance by Borrower of
Borrower's Equity Securities or Subordinated Indebtedness in one transaction or
a series of related transaction (other than in connection with the conversion of
the Almo Warrant or any stock option or similar plan of Borrower created in the
normal course of Borrower's business).
"Capital Expenditures" shall mean, with respect to any Person and any
period, all amounts expended and Indebtedness incurred or assumed by such Person
during such period for the acquisition of real property and other Capital Assets
(including amounts expended and Indebtedness incurred or assumed in connection
with Capital Leases).
1.01-3
"Capital Leases" shall mean any and all lease obligations that, in
accordance with GAAP, are required to be capitalized on the books of a lessee.
"CB&T" shall have the meaning given to that term in Recital A.
"Change of Law" shall have the meaning given to that term in
Subparagraph 2.09(b).
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall mean all property in which any Agent or any Bank has
a Lien to secure the Obligations.
"Collateral Agent" shall have the meaning given to that term in clause
(3) of the introductory paragraph hereof or any other Person that assumes the
duties and responsibilities of Collateral Agent pursuant to Subparagraph 7.07.
"Contractual Obligation" of any Person shall mean, any indenture, note,
security, deed of trust, mortgage, security agreement, lease, guaranty,
instrument, contract, agreement or other form of obligation to which such Person
is a party or by which such Person or any of its property is bound.
"Credit Documents" shall mean and include this Restated Credit
Agreement, the Revolving Loan Notes, the Security Documents, all amendments
hereof and thereof, all waivers and consents hereunder and thereunder and all
other documents, instruments and agreements delivered by Borrower or any of its
Subsidiaries to any Agent or any Bank in connection with this Restated Credit
Agreement.
"Credit Event" shall mean the making of any Revolving Loan, the
conversion of any Revolving Loan from one Type of Revolving Loan to another Type
or the selection of a new Interest Period for any Revolving LIBOR Loan.
"Default" shall mean any event or circumstance not yet constituting an
Event of Default which with the giving of any notice or the lapse of any period
of time or both, would become an Event of Default.
"Dollars" and "$" shall mean the lawful currency of the United States
of America and, in relation to any payment under this Restated Credit Agreement,
same day or immediately available funds.
"EBITDA" shall mean, with respect to any Person for any period, the sum
of the following, determined on a consolidated basis in accordance with GAAP
where applicable:
(a) The net income or net loss of such Person and its
Subsidiaries for such period before
provision for income taxes;
plus
1.01-4
(b) The sum (to the extent deducted in calculating net income
or loss in clause (a) above) of (i) all Interest Expenses of such
Person and its Subsidiaries accruing during such period and (ii) all
depreciation and amortization of such Person and its Subsidiaries
accruing during such period.
"Effective Date" shall have the meaning given to that term in Paragraph
9.01.
"Eligible Accounts" shall mean, with respect to Borrower and, after the
Tenex Data Acquisition and the delivery to Administrative Agent of each of the
items listed on Schedule 5.01(j), Xxxx-Tenex, the aggregate net amount of all
accounts (as defined in the California Uniform Commercial Code) of Borrower and
Xxxx-Tenex, except, to the extent not already deducted, the following:
(a) Any account which does not arise from the sale or lease of
goods or services rendered to the account debtor thereon in the
ordinary course of Borrower's or the Canadian Subsidiaries' business,
or which arises from a sale, lease or service which has not been fully
performed by Borrower or Xxxx-Tenex;
(b) Any account or portion thereof to the extent the same is
subject to any right of discount, credit, allowance, rescission,
setoff, claim or defense or which is otherwise not valid and
enforceable against the account debtor thereon;
(c) Any account which is not subject to a first priority
perfected security interest in favor of Collateral Agent for the
benefit of the Agents and the Banks;
(d) Any account which is not owned by Borrower or Xxxx-Tenex
free and clear of all Liens, rights and interests of all other Persons
except for Permitted Liens;
(e) Any account which is unpaid more than ninety (90) days
after the invoice date therefor;
(f) Any account arising from a consignment by Borrower or
Xxxx-Tenex as consignee or a COD shipment;
(g) Any account payable by (i) the United States government or
any department, agency or other subdivision thereof (except to the
extent Borrower complies with the Federal Assignment of Claims Act of
1940, as amended), (ii) a Person located in any jurisdiction outside
the United States or Canada, except to the extent secured by a letter
of credit acceptable to Collateral Agent, or (iii) an Affiliate of
Borrower;
(h) Any account payable by an account debtor (i) which is the
subject of any bankruptcy, insolvency, liquidation or similar
proceeding, (ii) which has made an assignment for the benefit of its
creditors, (iii) for which a receiver has been appointed or (iv) which
has admitted in writing its inability to pay its debts as such debts
become due;
1.01-5
(i) All accounts payable by an account debtor which has failed
to pay twenty percent (20%) or more of its total accounts payable owed
to Borrower and/or Xxxx-Tenex within ninety (90) days of their invoice
date; and
(j) Any other account which Collateral Agent reasonably
determines is unlikely to be paid in full within ninety (90) days after
the invoice date.
(As used in clauses (a)-(j) of this definition, the term "account" when
used in the singular form shall mean an account arising from a single
invoice.)
"Eligible Inventory" shall mean, with respect to Borrower and, after
the Tenex Data Acquisition and the delivery to Administrative Agent of each of
the items listed on Schedule 5.01(j), Xxxx-Tenex, the net book value of all
inventory (as defined in the California Uniform Commercial Code) of Borrower and
Xxxx-Tenex, except the following:
(a) Any inventory which is not held by or on behalf of
Borrower or Xxxx-Tenex for sale or lease in the ordinary course of its
business;
(b) Any inventory consisting of work-in-process;
(c) Any inventory which is not subject to a first priority
perfected security interest in favor of Collateral Agent for the
benefit of the Agents and the Banks;
(d) Any inventory located in any jurisdiction other than the
United States or Canada (excluding the provinces of Newfoundland, Nova
Scotia, Xxxxxx Xxxxxx Island, New Brunswick, Manitoba, Saskatchewan,
Alberta and Yukon Territory);
(e) Any inventory which is not owned by Borrower or Xxxx-Tenex
free and clear of all Liens, rights and interests of all other Persons
except for Permitted Liens;
(f) Any inventory which is obsolete, unsalable or damaged;
(g) Any inventory which has been consigned by Borrower or
Xxxx-Tenex (except for such inventory on consignment approved from time
to time by Collateral Agent);
(h) The portion of any inventory shown on the books of
Borrower or Xxxx-Tenex representing any purchase price discount earned
by Borrower or Xxxx-Tenex; and
(i) Any other inventory which Collateral Agent reasonably
determines is unlikely to be sold at or above its net book value.
"Employee Benefit Plan" shall mean any employee benefit plan within the
meaning of section 3(3) of ERISA maintained or contributed to by Borrower or any
ERISA Affiliate, other than a Multiemployer Plan.
1.01-6
"Environmental Laws" means all Requirements of Law relating to the
protection of human health or the environment, including, without limitation,
(a) all Requirements of Law, pertaining to reporting, licensing, permitting,
investigation, and remediation of emissions, discharges, releases, or threatened
releases of hazardous materials, chemical substances, pollutants, contaminants,
or hazardous or toxic substances, materials or wastes whether solid, liquid, or
gaseous in nature, into the air, surface water, groundwater, or land, or
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of chemical substances, pollutants,
contaminants, or hazardous or toxic substances, materials, or wastes, whether
solid, liquid, or gaseous in nature; and (b) all Requirements of Law pertaining
to the protection of the health and safety of employees or the public.
"Equity Securities" of any Person shall mean (a) all common stock,
preferred stock, participations, shares, partnership interests or other equity
interests in and of 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.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as the same may from time to time be amended or supplemented, including any
rules or regulations issued in connection therewith.
"ERISA Affiliate" shall mean any Person which is treated as a single
employer with Borrower under Section 414 of the Code.
"Event of Default" shall have the meaning given to that term in
Paragraph 6.01.
"Excluded Collateral" shall have the meaning given to that term in the
Borrower Security Agreement.
"Existing Borrower Pledge Agreement" shall have the meaning given to
that term in Paragraph 9.03.
"Existing Borrower Security Agreement" shall have the meaning given to
that term in Paragraph 9.03.
"Existing Credit Agreement" shall have the meaning given to that term
in Recital A.
"Federal Funds Rate" shall mean, for any day, the weighted average of
the per annum rates on overnight Federal funds transactions with member banks of
the Federal Reserve System arranged by Federal funds brokers as published by the
Federal Reserve Bank of New York for such day, (or, if such rate is not so
published for any day, the average rate quoted to Administrative Agent on such
day by three (3) Federal funds brokers of recognized standing selected by
Administrative Agent).
"Federal Reserve Board" shall mean the Board of Governors of the
Federal Reserve System.
1.01-7
"Fee on Increased Commitment" shall have the meaning given to that term
in Subparagraph 2.03(c).
"Financial Statements" shall mean, with respect to any accounting
period for any Person, statements of income and of changes in cash flow of such
Person for such period, and balance sheets of such Person as of the end of such
period, setting forth in each case in comparative form figures for the
corresponding period in the preceding fiscal year if such period is less than a
full fiscal year or, if such period is a full fiscal year, corresponding figures
from the preceding annual audit, all prepared in reasonable detail and in
accordance with GAAP.
"First Amendment Effective Date" shall mean May 14, 1999.
"GAAP" shall mean generally accepted accounting principles and
practices as in effect in the United States of America from time to time,
consistently applied, provided, however, that with respect to Borrower, the
definition of "current liabilities" as set forth in GAAP shall include the
Obligations.
"Governmental Authority" shall mean any domestic or foreign national,
state or local government, any political subdivision thereof, any department,
agency, authority or bureau of any of the foregoing, or any other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including, without limitation, the
Federal Deposit Insurance Corporation, the Federal Reserve Board, the
Comptroller of the Currency, any central bank or any comparable authority.
"Governmental Charges" shall mean all levies, assessments, fees, claims
or other charges imposed by any Governmental Authority upon or relating to (i)
Borrower or any of its Subsidiaries, (ii) the Revolving Loans, (iii) employees,
payroll, income or gross receipts of Borrower or any of its Subsidiaries, (iv)
the ownership or use of any of its assets by Borrower or any of its Subsidiaries
or (v) any other aspect of the business of Borrower or any of its Subsidiaries.
"Governmental Rule" shall mean any law, rule, regulation, ordinance,
order, code interpretation, judgment, decree, directive, guidelines, policy or
similar form of decision of any Governmental Authority.
"Guaranty" shall mean, collectively, the Xxxx Canada Guaranty and the
Xxxx-Tenex Guaranty.
"Increased Commitment Period" shall mean that period beginning on the
First Amendment Effective Date and ending on May 31, 1999.
"Indebtedness" of any Person shall mean and include (a) all items of
indebtedness and liabilities which, in accordance with GAAP, would be included
in determining liabilities that are shown on the liability side of the balance
sheet of such Person, (b) all indebtedness and liabilities of other Persons
assumed or guaranteed by such Person or in respect of which such Person is
secondarily or contingently liable whether by any agreement to acquire
indebtedness and
1.01-8
liabilities or to supply or advance funds or otherwise, and (c) all indebtedness
and liabilities of other Persons secured by any Lien in any property of such
Person (including without limitation Capital Leases).
"Indemnitees" shall have the meaning given to that term in Paragraph
8.03.
"Interest Account" shall have the meaning given to that term in
Subparagraph 2.06(b).
"Interest Coverage Ratio" shall mean, with respect to any Person for
any period, the ratio, determined on a consolidated basis in accordance with
GAAP, of (a) the sum of the Adjusted Net Income and Interest Expenses of such
Person and its Subsidiaries for such period to (b) the Interest Expenses of such
Person and its Subsidiaries for such period.
"Interest Expenses" shall mean, with respect to any Person for any
period, the sum, determined on a consolidated basis in accordance with GAAP, of
(a) all interest expenses of such Person and its Subsidiaries during such period
(including, without limitation, (i) the amortization of debt discounts, (ii) the
amortization of all fees payable in connection with the incurrence of
Indebtedness to the extent included in interest expense and (iii) the portion of
any Capitalized Lease Obligations allocable to interest expense and financing
charges attributable to Synthetic Leases whether calculated as interest expense
or rental expense) plus (b) all letter of credit fees payable by such Person
accruing during such period.
"Interest Period" shall mean, with respect to any Revolving LIBOR Loan,
the time periods selected by Borrower pursuant to Subparagraph 2.01(b) or
Subparagraph 2.01(d) which commences on the first day of such Revolving Loan or
the effective date of any conversion and ends on the last day of such time
period, and thereafter, each subsequent time period selected by Borrower
pursuant to Subparagraph 2.01(e) which commences on the last day of the
immediately preceding time period and ends on the last day of that time period.
"Investment" of any Person shall mean any loan or advance of funds by
such Person to any other Person (other than advances to employees of such Person
for moving and travel expense, drawing accounts and similar expenditures in the
ordinary course of business), any purchase or other acquisition of any Equity
Securities or Indebtedness of any other Person, any capital contribution by such
Person to or any other investment by such Person in any other Person (including,
without limitation, any Indebtedness incurred by such Person of the type
described in clauses (b) and (c) of the definition of "Indebtedness" on behalf
of any other Person); provided, however, that Investments shall not include
accounts receivable or other indebtedness owed by customers of such Person which
are current assets and arose from sales in the ordinary course of such Person's
business.
"Leverage Ratio" shall mean, with respect to any Person at any time,
the ratio, determined on a consolidated basis in accordance with GAAP, of (a)
the Adjusted Total Liabilities of such Person and its Subsidiaries at such time
to (b) the Tangible Net Worth of such Person and its Subsidiaries at such time.
1.01-9
"LIBO Rate" shall mean, with respect to any Interest Period for the
Revolving LIBOR Loans in any Revolving Loan Borrowing consisting of Revolving
LIBOR Loans, a rate per annum equal to the quotient of (a) the rate per annum at
which Dollar deposits are offered to CB&T in the London interbank eurodollar
currency market on the second Business Day prior to the commencement of such
Interest Period at or about 11:00 A.M. (London time) (for delivery on the first
day of such Interest Period) for a term comparable to such Interest Period and
in an amount approximately equal to the amount of the Revolving Loan to be made
by CB&T as part of such Revolving Loan Borrowing, divided by (b) one minus the
Reserve Requirement for such Revolving Loans in effect from time to time. The
LIBO Rate applicable to any Revolving Loan for any Interest Period shall be
automatically adjusted during such Interest Period to reflect any change in the
applicable Reserve Requirement.
"Lien" shall mean, with respect to any property, any security interest,
mortgage, pledge, lien, claim, charge or other encumbrance in, of, or on such
property or the income therefrom, including, without limitation, the interest of
a vendor or lessor under a conditional sale agreement, Capital Lease or other
title retention agreement, or any agreement to provide any of the foregoing, and
the filing of any financing statement or similar instrument under the Uniform
Commercial Code or comparable law of any jurisdiction.
"Margin Stock" shall have the meaning given to that term in Regulation
U issued by the Federal Reserve Board, as amended from time to time, and any
successor regulation thereto.
"Material Adverse Effect" shall mean a material adverse effect on (a)
the business, assets, operations, prospects or financial or other condition of
Borrower or any of its Subsidiaries; (b) the ability of Borrower or any of its
Subsidiaries to pay or perform the Obligations in accordance with the terms of
this Restated Credit Agreement and the other Credit Documents; (c) the rights
and remedies of any Agent or any Bank under this Restated Credit Agreement, the
other Credit Documents or any related document, instrument or agreement or (d)
the value of the Collateral, any Agent's or any Bank's security interests in the
Collateral or the perfection or priority of such security interests.
"Maturity" shall mean, with respect to any Revolving Loan, interest,
fees or other amount payable by Borrower under this Restated Credit Agreement or
the other Credit Documents, the date such Revolving Loan, interest, fee or other
amount becomes due, whether upon the stated maturity or due date, upon
acceleration or otherwise.
"Multiemployer Plan" shall mean any multiemployer plan within the
meaning of section 3(37) of ERISA maintained or contributed to by Borrower or
any ERISA Affiliate.
"Net Income After Tax" shall mean, with respect to any Person for any
period, the net income or net loss of such Person and its Subsidiaries for such
period (after provision for income taxes), determined on a consolidated basis in
accordance with GAAP.
"Net Operating Income" shall mean, with respect to any Person for any
period, the sum, determined on a consolidated basis in accordance with GAAP, of
the following:
1.01-10
(a) The net income or net loss of such Person and its
Subsidiaries for such period (before provision for income taxes);
plus
(b) The sum (to the extent deducted in calculating net income
or loss in clause (a) above) of all extraordinary and non-recurring
expenses of such Person and its Subsidiaries accruing during such
period;
minus
(c) The sum (to the extent added in calculating net income or
loss in clause (a) above) of all extraordinary and non-recurring income
of such Person and its Subsidiaries accruing during such period.
"Net Proceeds" shall mean with respect to the sale or issuance of any
Indebtedness, any Equity Security or any other security by any Person, the
aggregate consideration received by such Person from such sale or issuance less
the sum of the actual amount of the reasonable fees and commissions payable to
Persons other than such Person or any Affiliate of such Person, the reasonable
legal and other professional expenses and the other reasonable expenses directly
related to such sale or issuance that are to be paid by such Person.
"Notice of Revolving Loan Borrowing" shall have the meaning given to
that term in Subparagraph 2.01(b).
"Notice of Revolving Loan Conversion" shall have the meaning given to
that term in Subparagraph 2.01(d).
"Notice of Revolving Loan Interest Period Selection" shall have the
meaning given to that term in Subparagraph 2.01(e).
"Obligations" shall mean and include, with respect to Borrower, all
loans, advances, debts, liabilities, and obligations, howsoever arising, owed by
Borrower to any Agent or the Banks of every kind and description (whether or not
evidenced by any note or instrument and whether or not for the payment of
money), direct or indirect, absolute or contingent, due or to become due, now
existing or hereafter arising pursuant to the terms of this Restated Credit
Agreement or any of the other Credit Documents, including without limitation all
interest, fees, charges, expenses, attorneys' fees and accountants' fees
chargeable to Borrower or payable by Borrower hereunder or thereunder.
"Participant" shall have the meaning given to that term in Subparagraph
8.05(b).
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Permitted Dividend" shall mean and include:
(a) Dividends payable solely in the common stock of Borrower;
1.01-11
(b) Dividends payable by any wholly-owned Subsidiary solely to
Borrower; and
(c) Repurchases of employee stock pursuant to repurchase
agreements.
"Permitted Indebtedness" shall mean and include:
(a) Indebtedness to subcontractors and trade creditors
incurred in the ordinary course of business;
(b) Indebtedness of Borrower to the Banks and the Agents under
this Restated Credit Agreement and the other Credit Documents;
(c) Unsecured Indebtedness of Borrower, provided that (A) the
Obligations shall at all times rank senior in right of payment with
such unsecured Indebtedness, (B) such unsecured Indebtedness does not
contain material provisions that are more restrictive to Borrower and
its Subsidiaries than the material provisions contained in this
Restated Credit Agreement, (C) no principal payable in connection with
such unsecured Indebtedness is scheduled for payment on or prior to the
Maturity Date, and (D) such unsecured Indebtedness is otherwise
acceptable to the Banks in their sole discretion;
(d) Purchase money Indebtedness incurred to acquire a Capital
Asset provided that (i) such Indebtedness does not exceed the purchase
price of such Capital Asset, (ii) such Indebtedness is incurred not
later than thirty (30) days after the acquisition of such asset and
(iii) the sum of all payments due on such purchase money Indebtedness
and Capital Leases and operating leases referred to in the following
clause (e) shall not exceed in the aggregate $500,000 in any fiscal
year;
(e) Indebtedness under Capital Leases and operating leases
provided that the sum of all payments due on such Capital Leases and
operating leases and purchase money Indebtedness referred to in the
preceding clause (d) shall not exceed in the aggregate $500,000 in any
fiscal year;
(f) Indebtedness of any wholly-owned Subsidiary of Borrower to
Borrower arising from the extension by Borrower to such Subsidiary of
working capital financing in the ordinary course of Borrower's and such
Subsidiary's businesses, provided that, to the extent requested by
Collateral Agent, such Subsidiary has taken all steps necessary to
grant to Borrower and perfect security interests in the assets of such
Subsidiary as security for such Indebtedness;
(g) Indebtedness arising from the endorsement of instruments
in the ordinary course of business;
(h) Indebtedness of Borrower and its Subsidiaries to any Bank
under Rate Contracts, provided, that (A) all such arrangements are
entered into in connection with bona fide hedging operations and not
for speculation and (B) the aggregate net amount
1.01-12
owed by Borrower and its Subsidiaries under, on account of or otherwise
in connection with such Rate Contracts does not exceed $50,000,000
(marked to market) at any time; and
(i) Other Indebtedness not exceeding $100,000 at any time.
"Permitted Investments" shall mean and include:
(a) Deposits with commercial banks organized under the laws of
the United States or a state thereof to the extent such deposits are
fully insured by the Federal Deposit Insurance Corporation;
(b) Investments in marketable obligations issued or fully
guaranteed by the United States and maturing not more than ninety (90)
days from the date of issuance;
(c) Investments (including debt obligations) received in
connection with the bankruptcy or reorganization of customers or
suppliers and in settlement of delinquent obligations of, and other
disputes with, customers or suppliers;
(d) Investments arising under Rate Contracts otherwise
permitted pursuant to clause (h) of the definition of "Permitted
Indebtedness"; and
(e) Investments not otherwise permitted hereby not exceeding
in the aggregate $50,000 at any time outstanding.
"Permitted Liens" shall mean and include:
(a) Liens for taxes or other governmental charges not at the
time delinquent or thereafter payable without penalty or being
contested in good faith, provided provision is made to the reasonable
satisfaction of Collateral Agent for the eventual payment thereof if
subsequently found payable;
(b) Liens of carriers, warehousemen, mechanics, materialmen,
vendors, and landlords incurred in the ordinary course of business for
sums not overdue or being contested in good faith, provided provision
is made to the reasonable satisfaction of Collateral Agent for the
eventual payment thereof if subsequently found payable;
(c) Deposits under workers' compensation, unemployment
insurance and social security laws or to secure the performance of
bids, tenders, contracts (other than for the repayment of borrowed
money) or leases, or to secure statutory obligations of surety or
appeal bonds or to secure indemnity, performance or other similar bonds
in the ordinary course of business;
(d) Liens arising out of a judgment or award not exceeding
$100,000 (exclusive of any amounts covered by insurance issued by a
Person not an Affiliate of Borrower) with respect to which an appeal is
being prosecuted, a stay of execution pending appeal having been
secured;
1.01-13
(e) Liens securing purchase money indebtedness if such
indebtedness is Permitted Indebtedness pursuant to clause (d) of the
definition thereof and such Liens do not extend to property other than
the property financed with such indebtedness;
(f) Liens securing obligations under a Capital Lease if such
lease is Permitted Indebtedness pursuant to clause (e) of the
definition thereof and such Liens do not extend to property other than
the property leased under such Capital Lease;
(g) Liens in favor of any Agent or any Bank to secure the
Obligations;
(h) Leases, subleases, licenses and sublicenses granted to
Borrower the granting of which is not prohibited pursuant to the
definition of Permitted Indebtedness;
(i) Liens in favor of customs and revenue authorities which
secure payment of duties in connection with the importation of goods;
(j) Liens existing on property acquired by Borrower or any of
its Subsidiaries at the time of such acquisition (including Liens on
the assets of any Person at the time such Person becomes a Subsidiary
of Borrower), unless such Liens were created in contemplation of such
acquisition;
(k) Liens on insurance policies and the proceeds thereof
incurred solely to secure the financing of premiums owing with respect
thereto;
(l) Liens in favor of Borrower; and
(m) Such minor defects, irregularities, encumbrances,
easements, rights of way, and clouds on title as normally exist on
similar properties which do not, individually or in the aggregate,
materially impair the property affected thereby or the use thereof.
"Person" shall mean and include an individual, a partnership, a
corporation (including a business trust), a joint stock company, an
unincorporated association, a limited liability company, a joint venture, a
trust or other entity or a Governmental Authority.
"Pricing Grid" shall mean Schedule II.
"Pricing Period" shall mean (a) the period commencing on the Effective
Date and ending on February 28, 1999, (b) the period commencing on March 1, 1999
and ending on May 31, 1999, and (c) each consecutive three-calendar month period
thereafter which commences on the day following the last day of the immediately
preceding three-calendar month period and ends on the last day of that time
period as follows:
(i) December 1st through February 28th or February 29th (as
applicable);
(ii) March 1st through May 31st;
(iii) June 1st through August 31st; and
1.01-14
(iv) September 1st through November 30th.
"Prime Rate" shall mean the per annum rate publicly announced by CB&T
from time to time at its head office as its prime rate. The Prime Rate is
determined by CB&T from time to time as a means of pricing credit extensions to
some customers and is neither directly tied to any external rate of interest or
index nor necessarily the lowest rate of interest charged by CB&T at any given
time for any particular class of customers or credit extensions.
"Proportionate Share" shall mean, with respect to any Bank at any time,
a fraction (expressed as a percentage), the numerator of which is such Bank's
Revolving Loan Commitment at such time and the denominator of which is the Total
Revolving Loan Commitment at such time.
"Quick Ratio" shall mean, with respect to any Person at any time, the
ratio, determined on a consolidated basis in accordance with GAAP, of (a) the
cash and trade accounts receivable of such Person and its Subsidiaries at such
time to (b) the current liabilities of such Person and its Subsidiaries at such
time.
"Rate Contracts" shall mean swap agreements (as that term is defined in
Section 101 of the Federal Bankruptcy Reform Act of 1978, as amended) and any
other agreements or arrangements designed to provide protection against
fluctuations in interest or currency exchange rates.
"Reportable Event" shall have the meaning given to that term in ERISA
and applicable regulations thereunder.
"Required Banks" shall mean (a) at any time Revolving Loans are
outstanding, Banks holding sixty-six and two-thirds percent (66 2/3%) or more of
the aggregate principal amount of such Revolving Loans and (b) at any time no
Revolving Loans are outstanding, Banks whose Proportionate Shares equal or
exceed sixty-six and two-thirds percent (66 2/3%).
"Requirement of Law" applicable to any Person shall mean (a) the
Articles or Certificate of Incorporation and By-laws, Partnership Agreement or
other organizational or governing documents of such Person, (b) any Governmental
Rule applicable to such Person, (c) any license, permit, approval or other
authorization granted by any Governmental Authority to or for the benefit of
such Person and (d) any judgment, decision or determination of any Governmental
Authority or arbitrator, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject.
"Reserve Requirement" shall mean, with respect to any day in an
Interest Period for a Revolving LIBOR Loan, the aggregate of the reserve
requirement rates (expressed as a decimal) in effect on such day for
eurocurrency funding (currently referred to as "Eurocurrency liabilities" in
Regulation D of the Federal Reserve Board) required to be maintained by a member
bank of the Federal Reserve System. As used herein, the term "reserve
requirement" shall include, without limitation, any basic, supplemental or
emergency reserve requirements imposed on Bank by any Governmental Authority.
1.01-15
"Restated Borrower Pledge Agreement" shall have the meaning given to
that term in Paragraph 9.03.
"Restated Borrower Security Agreement" shall have the meaning given to
that term in Paragraph 9.03.
"Restated Credit Agreement" shall have the meaning given to that term
in the introductory paragraph hereof.
"Revolving LIBOR Loan" shall have the meaning given to that term in
Subparagraph 2.01(b).
"Revolving Loan" shall have the meaning given to that term in
Subparagraph 2.01(a).
"Revolving Loan Borrowing" shall mean a borrowing by Borrower
consisting of a Revolving Loan made by each Bank on the same date and of the
same Type pursuant to a single Notice of Revolving Loan Borrowing.
"Revolving Loan Commitment" shall mean, with respect to each Bank:
(i) During the Increased Commitment Period, the amount set
forth opposite the name of such Bank in Schedule I under the column
entitled "Revolving Loan Commitment during Increased Commitment Period"
or as reduced from time to time pursuant to Paragraph 2.02 hereof; and
(ii) At all other times, the amount set forth opposite the
name of such Bank in Schedule I under the column entitled "Revolving
Loan Commitment at all Other Times" or as reduced from time to time
pursuant to Paragraph 2.02 hereof.
"Revolving Loan Commitment Fees" shall have the meaning given to that
term in Subparagraph 2.03(b).
"Revolving Loan Maturity Date" shall have the meaning given to that
term in Subparagraph 2.01(a).
"Revolving Loan Note" shall have the meaning given to that term in
Subparagraph 2.06(a).
"Revolving Prime Rate Loan" shall have the meaning given to that term
in Subparagraph 2.01(b).
"Security Documents" shall mean and include (i) prior to the Tenex Data
Acquisition Effective Date, the Borrower Security Agreement, the Borrower Pledge
Agreement, the Xxxx Canada Guaranty, and all other documents, instruments and
agreements delivered to any Agent or any Bank to secure the Obligations or in
connection with the Collateral; and (ii) on and after the Tenex Data Acquisition
Effective Date, each of the items listed in clause (i) above, the Xxxx Canada
Pledge Agreement, the Xxxx-Tenex Guaranty, the Xxxx-Tenex Security Agreement,
the
1.01-16
Xxxx-Tenex Canadian Security Documents, and all other documents, instruments and
agreements delivered to any Agent or any Bank to secure the Obligations or in
connection with the Collateral.
"Senior Adjusted Total Liabilities" shall mean, with respect to
Borrower at any time, the difference of the following:
(a) The Adjusted Total Liabilities of Borrower and its
Subsidiaries at such time;
minus
(b) The aggregate principal amount of all Subordinated
Indebtedness of Borrower permitted pursuant to Subparagraph 5.02(b) and
clause (c) of the definition of "Permitted Indebtedness".
"Senior Leverage Ratio" shall mean, with respect to Borrower at any
time, the ratio of (a) the Senior Adjusted Total Liabilities of Borrower and its
Subsidiaries at such time to (b) the Tangible Net Worth of Borrower and its
Subsidiaries at such time.
"Solvent" shall mean, with respect to any Person on any date, that on
such date (a) the fair value of the property of such Person is greater than the
fair value of the liabilities (including, without limitation, contingent
liabilities) of such Person, (b) the present fair saleable value of the assets
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, (c) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute an unreasonably small amount of capital.
"Subordinated Indebtedness" shall mean the unsecured subordinated
Indebtedness of Borrower permitted pursuant to Subparagraph 5.02(b) and clause
(c) of the definition of "Permitted Indebtedness".
"Subsidiary" of any Person shall mean (a) any corporation of which more
than 50% of the issued and outstanding Equity Securities having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency) is at the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other Subsidiaries or by one or
more of such Person's other Subsidiaries, (b) any partnership, joint venture,
limited liability company or other association of which more than 50% of the
equity interest having the power to vote, direct or control the management of
such partnership, joint venture or other association is at the time owned and
controlled by such Person, by such Person and one or more of the other
Subsidiaries or by one or more of such Person's other subsidiaries and (c) any
other Person included in the Financial Statements of such Person on a
consolidated basis.
1.01-17
"Synthetic Lease" shall mean an off-balance sheet financing arrangement
for equipment or real estate which is treated as an operating lease under GAAP
but pursuant to which the lessee of such equipment or real estate has the
benefits and burdens of ownership of the leased equipment or real estate for
U.S. tax purposes.
"Tangible Net Worth" shall mean, with respect to any Person at any
time, the remainder at such time, determined on a consolidated basis in
accordance with GAAP, of (a) the total assets of such Person and its
Subsidiaries minus (b) the sum (without limitation and without duplication of
deductions) of (i) the total liabilities of such Person and its Subsidiaries,
(ii) all reserves established by such Person and its Subsidiaries for
anticipated losses and expenses (to the extent not deducted in calculating total
assets in clause (a) above), (iii) all intangible assets of such Person and its
Subsidiaries (to the extent included in calculating total assets in clause (a)
above), including, without limitation, goodwill (including any amounts, however
designated on the balance sheet, representing the cost of acquisition of
businesses and investments in excess of underlying tangible assets), trademarks,
trademark rights, trade name rights, copyrights, patents, patent rights,
licenses, unamortized debt discount, marketing expenses, organizational
expenses, non-compete agreements and deferred research and development and (iv)
the amount, if any, by which the aggregate intercompany receivables owed to such
Person by its Affiliates exceeds the aggregate intercompany receivables payable
by such Person to its Affiliates.
"Taxes" shall have the meaning given to such term in Paragraph 2.10.
"Tenex Data Acquisition" shall mean the acquisition by Xxxx-Tenex of
substantially all of the assets of the Tenex Data Division of Axidata, Inc., a
Canadian corporation and a Subsidiary of Abitibi, Inc., a Canadian corporation.
"Tenex Data Acquisition Effective Date" shall mean the date that the
Tenex Data Acquisition is consummated.
"Total Revolving Loan Commitment" shall mean (a) during the Increased
Commitment Period, One Hundred Forty Million Dollars ($140,000,000) and (b) at
all other times One Hundred Thirty Million Dollars ($130,000,000) or, in each
case, if such amount is reduced pursuant to Subparagraph 2.02(b), the amount to
which so reduced and in effect at such time.
"Total Unused Revolving Loan Commitment" shall mean, at any time, the
remainder of (a) the Total Revolving Loan Commitment at such time minus (b) the
aggregate principal amount of all Revolving Loans outstanding at such time.
"Type" shall mean, with respect to any Revolving Loan or Revolving Loan
Borrowing at any time, the classification of such Revolving Loan or Revolving
Loan Borrowing by the type of interest rate it then bears, whether an interest
rate based on the Prime Rate or the LIBO Rate.
"UBOC" shall mean Union Bank of California, N.A., a national banking
association.
1.01-18
"Working Capital" shall mean, with respect to any Person at any time,
the working capital of such Person and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP.
1.01-19
SCHEDULE 3.01
EFFECTIVE DATE CONDITIONS PRECEDENT
A. PRINCIPAL CREDIT DOCUMENTS.
(1) The Third Amended and Restated Credit Agreement, duly
executed by Borrower, each Bank, Administrative Agent and Collateral
Agent;
(2) The Revolving Loan Note payable to each Bank, duly
executed by Borrower;
(3) The Borrower Security Agreement, duly executed by
Borrower;
(4) The Borrower Pledge Agreement, duly executed by Borrower;
and
(5) The Xxxx Canada Guaranty, duly executed by Xxxx Canada;
B. FINANCIAL STATEMENTS, FINANCIAL CONDITION, ETC.
(1) Copies of (a) the audited Financial Statements of Borrower
and its Subsidiaries for the fiscal year ended December 31, 1997,
prepared by Pricewaterhousecoopers, LLP., and (b) the unqualified
opinion (or qualified opinion reasonably acceptable to the Banks) and
management letter (if any) delivered by such accountants in connection
with such Financial Statements; and
(2) A Borrowing Base Certificate dated the Effective Date
which sets forth the calculation of the Borrowing Base as of September
30, 1998, certified by the Chief Financial Officer of Borrower.
C. BORROWER CORPORATE DOCUMENTS.
(1) The Articles of Incorporation of Borrower, certified as of
a recent date prior to the Effective Date by the Secretary of State of
California;
(2) A Certificate of Good Standing (or comparable certificate)
for Borrower, certified as of a recent date prior to the Effective Date
by the Secretary of State of California;
(3) A certificate of the Secretary of Borrower, dated as of
the date of this Restated Credit Agreement, certifying (a) that the
Articles of Incorporation of Borrower, in the form certified by the
Secretary of State of California and delivered to Administrative Agent
pursuant to item C(1) hereof, is in full force and effect and has not
been amended, supplemented, revoked or repealed since the date of such
certification; (b) that attached thereto is a true and correct copy of
the Bylaws of Borrower as in effect on the Effective Date; (c) that
attached thereto are true and correct copies of resolutions duly
adopted by the Board of Directors of Borrower and continuing in effect,
which authorize
3.01(e)-1
the execution, delivery and performance by Borrower of this Restated
Credit Agreement and the other Credit Documents executed or to be
executed by Borrower and the consummation of the transactions
contemplated hereby and thereby; and (d) that there are no proceedings
for the dissolution or liquidation of Borrower (commenced or
threatened);
(4) A certificate of the Secretary of Borrower, dated as of
the date of this Restated Credit Agreement, certifying the incumbency,
signatures and authority of the officers of Borrower authorized to
execute, deliver and perform this Restated Credit Agreement and the
other applicable Credit Documents on behalf of Borrower; and
(5) A Certificate of Good Standing (or comparable certificate)
for each Subsidiary of Borrower, certified as of a recent date prior to
the Effective Date by the Secretary of State (or comparable public
official) of such Subsidiary's jurisdiction of incorporation (or, in
the case of a foreign subsidiary, an opinion of counsel acceptable to
Administrative Agent to such effect).
X. XXXX CANADA CORPORATE DOCUMENTS.
(1) The Certificate of Incorporation of Xxxx Canada, certified
as of a recent date prior to the Effective Date by the California
Secretary of State;
(2) A Certificate of Good Standing (or comparable certificate)
for Xxxx Canada, certified as of a recent date prior to the Effective
Date by the California Secretary of State;
(3) A certificate of the Secretary of Xxxx-Canada, dated the
Effective Date, certifying (a) that the Certificate of Incorporation of
Xxxx-Canada, in the form certified by the California Secretary of State
and delivered to Administrative Agent pursuant to item D(1) hereof, is
in full force and effect and has not been amended, supplemented,
revoked or repealed since the date of such certification; (b) that
attached thereto is a true and correct copy of the Bylaws of Xxxx
Canada as in effect on the Effective Date; (c) that attached thereto
are true and correct copies of resolutions duly adopted by the Board of
Directors of Xxxx Canada and continuing in effect, which authorize the
execution, delivery and performance by Xxxx Canada of the Credit
Documents executed or to be executed by Xxxx Canada and the
consummation of the transactions contemplated hereby and thereby; and
(d) that there are no proceedings for the dissolution or liquidation of
Xxxx Canada (commenced or threatened); and
(4) A certificate of the Secretary of Xxxx Canada, dated the
Effective Date, certifying the incumbency, signatures and authority of
the officers of Xxxx Canada authorized to execute, deliver and perform
the applicable Credit Documents on behalf of Xxxx Canada.
3.01(e)-2
E. SECURITY DOCUMENTS.
(1) All Uniform Commercial Code financing statements
(including amendments and fixture filings) and other documents,
instruments and agreements reasonably requested by Collateral Agent to
perfect the security interests, liens and assignments granted to
Collateral Agent by Borrower in connection herewith, appropriately
completed and duly executed by the appropriate parties;
(2) Uniform Commercial Code search certificates evidencing the
filing of the financing statements necessary to perfect the security
interests granted to Collateral Agent by Borrower pursuant to the
Credit Documents prior to the financing statements of all other
Persons;
(3) The certificates representing the stock pledged to
Collateral Agent pursuant to the Borrower Pledge Agreement, together
with blank stock powers for each such certificate duly executed by
Borrower.
(4) Such other documents, instruments and agreements as
Collateral Agent may reasonably request to establish and perfect the
Liens granted to Collateral Agent or any Bank in this Agreement, the
Security Documents and the other Credit Documents.
F. OPINIONS.
(1) A written opinion of Wilson, Sonsini, Xxxxxxxx & Xxxxxx,
outside counsel to Borrower, dated as of the Effective Date and
addressed to Administrative Agent and each Bank, covering such legal
matters as Administrative Agent may reasonably request and otherwise in
form and substance satisfactory to Administrative Agent.
G. OTHER ITEMS.
(1) A duly completed and timely delivered Notice of Borrowing.
(2) A certificate of the President, a Vice President or Chief
Financial Officer of Borrower, addressed to Administrative Agent and
the Banks and dated as of the Effective Date, certifying that:
(a) The representations and warranties set forth in
Paragraph 4.01 are true and correct as of such date;
(b) No Event of Default or Default has occurred and
is continuing as of such date; and
(c) Each of the Credit Documents required to be
delivered to Administrative Agent or any Bank on or prior to
the Effective Date is in full force and effect as of such
date;
3.01(e)-3
(3) Certificates of insurance in forms acceptable to
Collateral Agent, naming Collateral Agent as additional insured or as
loss payee;
(4) All fees payable to Administrative Agent and the Banks on
or prior to the Effective Date;
(5) All fees and expenses of Administrative Agent's counsel
through the Effective Date; and
(6) Such other evidence as any Bank may reasonably request to
establish the accuracy and completeness of the representations and
warranties and the compliance with the terms and conditions contained
in this Restated Credit Agreement and the other Credit Documents.
3.01(e)-4
SCHEDULE 4.01(g)
MATERIAL LITIGATION
None
4.01(g)-5
SCHEDULE 4.01(q)
SUBSIDIARIES
Jurisdiction Classes
of of Outstanding Percent
Name Incorporation Stock Shares Owned
---- ------------- ----- ------ -----
Xxxx Microproducts Canada, Inc. California Common 100 100%
4.01(q)-1
SCHEDULE 5.01(j)
DOCUMENTS TO BE DELIVERED BY BORROWER
ON OR PRIOR TO THE TENEX DATA ACQUISITION EFFECTIVE DATE
A. PRINCIPAL XXXX CANADA AND XXXX-TENEX CREDIT DOCUMENTS.
(1) The Xxxx Canada Pledge Agreement, duly executed by Xxxx
Canada;
(2) The Xxxx-Tenex Guaranty, duly executed by Xxxx-Tenex;
(3) The Xxxx-Tenex Security Agreement, duly executed by
Xxxx-Tenex; and
(4) The Xxxx-Tenex Canadian Security Documents, duly executed
by Xxxx-Tenex.
X. XXXX-TENEX CORPORATE DOCUMENTS.
(1) The Certificate of Incorporation of Xxxx-Tenex, certified
as of a recent date prior to the Tenex Data Acquisition Effective Date
by the Deputy Registrar of Joint Stock Companies of Nova Scotia;
(2) A Certificate of Good Standing (or comparable certificate)
for Xxxx-Tenex, certified as of a recent date prior to the Tenex Data
Acquisition Effective Date by the Deputy Registrar of Joint Stock
Companies of Nova Scotia;
(3) A certificate of the Secretary of Xxxx-Tenex, dated the
Tenex Data Acquisition Effective Date, certifying (a) that the
Certificate of Incorporation of Xxxx-Tenex, in the form certified by
the Deputy Registrar of Joint Stock Companies of Nova Scotia and
delivered to Administrative pursuant to item B(1) hereof, is in full
force and effect and has not been amended, supplemented, revoked or
repealed since the date of such certification; (b) that attached
thereto is a true and correct copy of the Memorandum and Articles of
Association of Xxxx-Tenex as in effect on the Tenex Data Acquisition
Effective Date; (c) that attached thereto are true and correct copies
of resolutions duly adopted by the Board of Directors of Xxxx-Tenex and
continuing in effect, which authorize the execution, delivery and
performance by Xxxx-Tenex of the Credit Documents executed or to be
executed by Xxxx-Tenex and the consummation of the transactions
contemplated hereby and thereby; and (d) that there are no proceedings
for the dissolution or liquidation of Xxxx-Tenex (commenced or
threatened); and
(4) A certificate of the Secretary of Xxxx-Tenex, dated the
Tenex Data Acquisition Effective Date, certifying the incumbency,
signatures and authority of the officers of Xxxx-Tenex authorized to
execute, deliver and perform the applicable Credit Documents on behalf
of Xxxx-Tenex.
5.01(j)-1
C. SECURITY DOCUMENTS.
(1) All Uniform Commercial Code financing statements and other
documents, instruments and agreements reasonably requested by
Collateral Agent to perfect the security interests, liens and
assignments granted to Collateral Agent by Xxxx Canada and Xxxx-Tenex
in connection herewith, appropriately completed and duly executed by
the appropriate parties;
(2) Search certificates or similar documentation evidencing
the filing of the financing statements necessary to perfect the
security interests granted to Collateral Agent by Xxxx Canada and
Xxxx-Tenex pursuant to the Credit Documents will be prior to the
financing statements of all other Persons;
(3) The certificates representing the stock pledged to
Collateral Agent pursuant to the Xxxx Canada Pledge Agreement, together
with blank stock powers for each such certificate duly executed by
Borrower.
(4) Such other documents, instruments and agreements as
Collateral Agent may reasonably request to establish and perfect the
Liens granted to Collateral Agent or any Bank in this Agreement, the
Security Documents and the other Credit Documents.
D. OPINIONS.
(1) A written opinion of Wilson, Sonsini, Xxxxxxxx & Xxxxxx,
outside counsel to Borrower, dated as of the Tenex Data Acquisition
Effective Date and addressed to Administrative Agent and each Bank,
covering such legal matters as Administrative Agent may reasonably
request and otherwise in form and substance satisfactory to
Administrative Agent.
(2) Written opinions of Blake, Xxxxxxx & Xxxxxxx and Xxxxxxx
XxXxxxxx Stirling Scales, outside counsel to Xxxx-Tenex, dated as of
the Tenex Data Acquisition Effective Date and addressed to
Administrative Agent and each Bank, covering such legal matters as
Administrative Agent may reasonably request and otherwise in form and
substance satisfactory to Administrative Agent.
E. OTHER ITEMS.
(1) A certificate of the President, a Vice President or Chief
Financial Officer of Borrower, addressed to Administrative Agent and
the Banks and dated as of the Tenex Data Acquisition Effective Date,
certifying that:
(a) The representations and warranties set forth in
Paragraph 4.01 are true and correct as of such date;
(b) No Event of Default or Default has occurred and
is continuing as of such date; and
5.01(j)-2
(c) Each of the Credit Documents required to be
delivered to Administrative Agent or any Bank on or prior to
the Tenex Data Acquisition Effective Date is in full force and
effect as of such date;
(3) Certificates of insurance in forms acceptable to
Collateral Agent, naming Collateral Agent as additional insured or as
loss payee with respect to the assets of Xxxx-Tenex secured pursuant to
the Xxxx-Tenex Security Agreement and the Xxxx-Tenex Canadian Security
Documents;
(4) Such other evidence as any Bank may reasonably request to
establish the accuracy and completeness of the representations and
warranties and the compliance with the terms and conditions contained
in this Restated Credit Agreement and the other Credit Documents.
5.01(j)-3
