COMMERCIAL MORTGAGE FINANCING AGREEMENT
THIS COMMERCIAL MORTGAGE FINANCING AGREEMENT (this "Agreement") is
made and dated as of the 27th day of September, 2002, by and between BANK
OF THE WEST (the "Lender") and MICREL, INCORPORATED, a California
corporation (the "Borrower").
RECITALS
A. The Borrower has requested that the Lender extend credit to the
Borrower secured by semiconductor manufacturing facilities located at 1849
and 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx, including the fee interest in
the real property and the improvements located thereon (collectively, the
"Property").
B. The Borrower and the Lender desire to set forth herein the terms
and conditions of the making of such credit extension by the Lender and the
repayment obligations of the Borrower with respect thereto.
NOW, THEREFORE, in consideration of the above Recitals and for other
good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the parties hereto hereby agree as follows:
AGREEMENT
1. Real Estate Facility.
1(a) Loan. On the terms and subject to the conditions set
forth herein, the Lender agrees that it shall, on the Closing Date (as that
term and capitalized terms not otherwise defined herein are defined in
Paragraph 11 below), make a loan (the "Loan") to the Borrower, in one
disbursement, in the principal amount of $10,736,250.00.
1(b) Required Payments of Principal and Interest. The
principal balance of the Loan shall be payable in fifty nine (59)
consecutive equal monthly installments of $16,890.00, each such installment
to be payable on the last Business Day of each calendar month, commencing
October 30, 2002, and one final installment in the amount necessary to pay
in full the remaining outstanding principal balance of the Loan on the
Final Maturity Date. The Borrower shall pay interest on the entire
outstanding principal balance of the Loan at a rate per annum equal to, at
the option of and as selected by the Borrower from time to time (subject to
the provisions of Paragraph 2 below): (1) the daily floating Prime Rate
during the subject interest computation period or (2) the Applicable LIBOR
Rate for the selected Interest Period.
1(c) Use of Proceeds. The proceeds of the Loan shall be used
by the Borrower for general working capital purposes.
2. Interest and Other Pricing-Related Provisions.
2(a) Conversion and Continuation Options.
(1) The Borrower may elect from time to time to
convert the entire principal balance of the Loan which is
outstanding: (i) as LIBOR Loan to a Prime Rate Loan by giving
the Lender irrevocable notice of such election no later than
10:00 a.m. (Los Angeles time) on the last day of the Interest
Period for such LIBOR Loan, and (ii) as a Prime Rate Loan to a
LIBOR Loan by giving the Lender irrevocable notice of such
election no later than 10:00 a.m. (Los Angeles time) one (1)
Business Day prior to the proposed conversion date. Any
conversion of a LIBOR Loan to a Prime Rate Loan may only be
made on the last day of the applicable Interest Period. No
Prime Rate Loan may be converted into a LIBOR Loan if an Event
of Default or Potential Default has occurred and is continuing
at the requested conversion date. No partial conversion of the
Loan shall be permitted.
(2) The Borrower may elect from time to time to
have any LIBOR Loan continued as a LIBOR Loan upon the
expiration of the Interest Period applicable thereto by giving
the Lender irrevocable notice of such election no later than
10:00 a.m. (Los Angeles time) one (1) Business Day prior to the
last day of such Interest Period; provided, however, that no
LIBOR Loan may be continued as such when any Event of Default
or Potential Default has occurred and is continuing, but shall
be automatically converted to a Prime Rate Loan on the last day
of the Interest Period applicable thereto. If the Borrower
shall fail to give notice of its election to continue a LIBOR
Loan as such as provided above, the Borrower shall be deemed to
have elected to convert such LIBOR Loan to a Prime Rate Loan on
the last day of the applicable Interest Period.
(3) Each request for the conversion or
continuation of the Loan shall be evidenced by the timely
delivery by the Borrower to the Lender of a duly executed
Pricing Request (which delivery may be by facsimile
transmission) or, but only with the prior agreement of the
Lender, telephonically, with any Pricing Request delivered
telephonically to be promptly confirmed in writing (which may
be by facsimile transmission).
(4) All Pricing Requests shall be irrevocable and
shall be delivered in writing (which may be by facsimile
transmission), or telephonically to be promptly confirmed in
writing (which may be by facsimile transmission).
2(b) Illegality. Notwithstanding any other provisions
herein, if any law, regulation, treaty or directive or any change therein
or in the governmental, regulatory or judicial interpretation or
application thereof, shall make it unlawful for the Lender to make or
maintain a LIBOR Loan as contemplated by this Agreement: (1) the
commitment of the Lender hereunder to make or to continue LIBOR Loans or to
convert the Loan into a LIBOR Loan shall forthwith be canceled and (2) any
such type of Loan then outstanding shall be converted automatically to a
Prime Rate Loan at the end of its respective Interest Period or within such
earlier period as may be required by law. In the event of a conversion of
any such Loan prior to the end of its applicable Interest Period the
Borrower hereby agrees promptly to pay the Lender, upon demand, the amounts
required pursuant to Paragraph 2(e) below, it being agreed and understood
that such conversion shall constitute a prepayment for all purposes hereof.
The provisions hereof shall survive the termination of this Agreement and
payment of all other Obligations.
2(c) Inability to Determine Rate. In the event that the
Lender shall have reasonably determined (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the London interbank or eurodollar market adequate and reasonable
means do not exist for ascertaining the LIBOR Rate for any Interest Period,
the Lender shall promptly upon such determination so notify the Borrower.
If such notice is given: (1) if the Loan was to have been continued as or
converted to a LIBOR Loan, as applicable, it shall be continued as or
converted to a Prime Rate Loan or other permissible type of loan and (2) if
the Loan is outstanding as a LIBOR Loan, as applicable, it shall be
converted, on the last day of the then current Interest Period with respect
thereto, to a Prime Rate Loan or other permissible type of loan. Until
such notice has been withdrawn by the Lender, the Borrower shall not have
the right to have the Loan continued as or converted into a LIBOR Loan, as
applicable.
2(d) Requirements of Law; Increased Costs. In the event that
any applicable law, order, regulation, treaty or directive issued by any
central bank or other governmental authority, agency or instrumentality or
in the governmental, regulatory or judicial interpretation or application
thereof, or compliance by the Lender with any request or directive (whether
or not having the force of law) issued by any central bank or other
governmental authority, agency or instrumentality:
(1) Does or shall subject the Lender to any tax
of any kind whatsoever with respect to this Agreement or the
Loan, or change the basis of taxation of payments to the Lender
of principal, fee, interest or any other amount payable
hereunder (except for change in the rate of tax on the overall
net income of the Lender);
(2) Does or shall impose, modify or hold
applicable any reserve, capital requirement, special deposit,
compulsory loan or similar requirements against assets held by,
or deposits or other liabilities in or for the account of,
advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of the Lender which are not
otherwise included in the determination of interest payable on
the Obligations on the Closing Date; or
(3) Does or shall impose on the Lender any other
condition;
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and the result of any of the foregoing is to increase the cost to the
Lender of making, renewing or maintaining the Loan or to reduce any amount
receivable in respect thereof or the rate of return on the capital of the
Lender or any corporation controlling the Lender, then, in any such case,
the Borrower shall promptly pay to the Lender, upon its written demand, any
additional amounts necessary to compensate the Lender for such additional
cost or reduced amounts receivable or rate of return as reasonably
determined by the Lender with respect to this Agreement or Loans made
hereunder but only to the extent the Lender is generally requiring such
compensation from its borrowers with respect to credit facilities in the
nature of the credit facility evidenced hereby. If the Lender becomes
entitled to claim any additional amounts pursuant to this Paragraph 2(d),
it shall promptly notify the Borrower of the event by reason of which it
has become so entitled. A certificate as to any additional amounts payable
pursuant to the foregoing sentence containing the calculation thereof in
reasonable detail submitted by the Lender to the Borrower shall be
conclusive in the absence of manifest error. The provisions hereof shall
survive the termination of this Agreement and payment of all other
Obligations.
2(e) Prepayment Premium. In addition to all other payment
obligations hereunder, in the event: (1) any Twelve Month LIBOR Loan is
prepaid prior to the last day of the applicable Interest Period, whether
following the occurrence of an Event of Default or otherwise, or (2) the
Borrower shall fail to continue or to make a conversion to a Twelve Month
LIBOR Loan after the Borrower has given notice thereof as provided in
Paragraph 2(a) above, then the Borrower shall immediately pay to the Lender
an additional premium sum compensating the Lender for losses, costs and
expenses reasonably incurred by the Lender in connection with such
prepayment or such failure to borrow, continue or convert.
If the Lender becomes entitled to claim any additional
amounts pursuant to this Paragraph 2(e), it shall promptly notify the
Borrower of the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to the foregoing
sentence containing the calculation thereof in reasonable detail submitted
by the Lender to the Borrower shall be conclusive in the absence of
manifest error. The provisions hereof shall survive the termination of
this Agreement and payment of all other Obligations.
2(f) Funding. The Lender shall be entitled to fund the Loan
in any manner it may determine in its sole discretion, including, without
limitation, in the Grand Cayman inter-bank market, the London inter-bank
market and within the United States, but all calculations and transactions
hereunder in connection with LIBOR Loans shall be conducted as though the
Lender actually funded such Loans through the purchase in the interbank
eurodollar market of dollar deposits in the principal amount of the Loan
for a term equal to the selected Interest Period therefor.
2(g) Default Interest. Notwithstanding anything to the
contrary contained herein, on any date that there shall have occurred and
be continuing an Event of Default, any and all Obligations outstanding
shall bear interest, at the Lender's discretion, at a per annum rate equal
to five percent (5%) in excess of the Prime Rate.
2(h) Facility Fee. On the Closing Date the Borrower shall
pay to the Lender a non-refundable facility fee in an amount equal to
$26,841.00.
2(i) Additional Interest in Lieu of Deposits. In the event
the amount of Available Deposits maintained by the Borrower with the Lender
during any calendar month shall be less than $5,000,000.00, the Borrower
will pay to the Lender additional interest computed against the LIBOR Loans
outstanding during such month calculated at a per annum rate equal to one-
half percent (.50%). The amount of such additional interest, if any, for a
given calendar month shall be set forth in a monthly interest billing
delivered by the Lender to the Company and shall be payable concurrently
with the payment of other monthly interest.
2(j) Computations. All computations of interest and fees
payable hereunder shall be based upon a year of 360 days for the actual
number of days elapsed.
3. Miscellaneous Lending Provisions.
3(a) Note. The obligation of the Borrower to repay the Loan
shall be evidenced by the Note.
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3(b) Nature and Place of Payments. All payments made on
account of the Obligations shall be made to the Lender without setoff or
counterclaim in lawful money of the United States of America in immediately
available same day funds (or, with respect to fees, costs, expenses by
check or other payment medium acceptable to the Lender), free and clear of
and without deduction for any taxes, fees or other charges of any nature
whatsoever imposed by any taxing authority. Such payments must be received
by the Lender by 2:00 p.m. (Los Angeles time) on the day of payment, it
being expressly agreed and understood that if a payment is received after
2:00 p.m. (Los Angeles time) by the Lender, such payment will be considered
to have been made on the next succeeding Business Day and interest thereon
shall be payable at the then-applicable rate during such extension. All
payments on account of the Obligations shall be made to the Lender at the
Contact Office. If any payment required to be made by the Borrower becomes
due and payable on a day other than a Business Day, the due date thereof
shall be extended to the next succeeding Business Day and interest thereon
shall be payable at the then-applicable rate during such extension. The
Lender is hereby authorized by the Borrower, without prior notice to the
Borrower, to debit the general operating account of the Borrower maintained
with the Lender for the full amount of monthly principal and interest
payments and the other Obligations hereunder; provided, however, that the
failure of the Lender to so debit such account shall not in any manner or
to any extent affect the obligation of the Borrower to pay such Obligations
as provided herein and in the other Loan Documents. The Lender is further
hereby authorized by the Borrower, without prior notice to the Borrower, to
apply any amounts which may be payable from time to time by Lender to
Borrower under any Rate Management Transaction Documents to the payment of
the Obligations.
3(c) Prepayments.
(1) Prime Rate Loans (but not LIBOR Loans) may be
prepaid, in whole or in part, without premium or penalty at any
time.
(2) In addition to all other payment obligations
hereunder, in the event of any prepayment of any LIBOR Loan for
whatever reason, including, without limitation, following the
occurrence of an Event of Default or if the Lender voluntarily
agrees to accept such prepayment at the request of the
Borrower, the Borrower shall pay to the Lender concurrently
therewith the prepayment premium referred to in Paragraph 2(e)
above.
(3) All repayments of principal on account of the
Loan shall be applied to principal installments due under the
Loan in inverse order of maturity.
4. Collateral Security; Additional Documents.
4(a) Collateral Security for Obligations. As collateral
security for the Obligations, the Borrower shall execute and deliver, and
cause to be executed and delivered, to the Lender: (1) the Deed of Trust,
(2) the Assignment of Leases, and (3) such additional documents,
instruments and agreements, including, without limitation, notices to and
consents of and acknowledgment, attornment, estoppel and subordination
agreements from third parties (including, without limitation, lessees of
the Property), legal descriptions, financing statements and title policies,
as the Lender may reasonably request (the "Related Collateral Documents"),
to obtain for the Lender a first, perfected lien upon the Property and
various rights relating to the Property and the continued operation thereof
and all lease and other rental and occupancy agreements relating thereto
and a security interest in the other Collateral with a priority acceptable
to the Lender.
4(b) Further Documents. The Borrower agrees to execute and
deliver and cause to be executed and delivered to the Lender from time to
time such confirmatory or supplementary security agreements, financing
statements, reaffirmations, estoppel statements, attornment agreements and
consents and such other documents, instruments or agreements as the Lender
may reasonably request, to obtain for the Lender the benefit of the Loan
Documents and the Collateral.
5. Conditions to Making of Loan. As conditions precedent to the
Lender's obligation to fund the Loan:
5(a) Delivery of Closing Items. The Borrower shall have
delivered or shall have caused to be delivered to the Lender, in form and
substance satisfactory to the Lender, each of the following:
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(1) A duly executed copy of this Agreement;
(2) A duly executed copy of the Note;
(3) A duly executed, recordable copy of each of
the Deed of Trust and the Assignment of Leases;
(4) A UCC-1 Financing Statement in acceptable
form for filing with the Office of the California Secretary of
State;
(5) Duly executed copies of the Related
Collateral Documents;
(6) Certified copies of appropriate corporate and
other authorization approving the execution and delivery by the
Borrower of the Loan Documents to which it is party;
(7) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the names and
true signatures of the officers of the Borrower authorized to
sign the Loan Documents to which it is party;
(8) Certificates of all fire and casualty, and
liability and business interruption insurance required to be
carried by the Borrower pursuant to the terms of the Loan
Documents, showing the Lender named as loss payee or named
insured, as applicable, thereunder;
(9) Such UCC searches as the Lender may require
evidencing the first priority of the security interest of the
Lender in the Collateral;
(10) An appraisal of the Property in form and
detail satisfactory to the Lender prepared on the basis of
methodology and by the Lender or an independent MAI appraiser
acceptable to the Lender and which appraisal has been reviewed
and approved by the Lender, demonstrating to the satisfaction
of the Lender that the original principal balance of the Loan
does not exceed seventy five percent (75%) of the appraised
value of the Property;
(11) Evidence satisfactory to the Lender that a
title insurance company acceptable to the Lender is irrevocably
and unconditionally committed to issue a title insurance policy
acceptable to the Lender (the "Title Policy") covering the
Property on the American Land Title Association Loan Policy
(with extended coverage), Form 1970, Amended 10-17-70 showing
fee title vested in the Borrower, with reinsurance as required
by the Lender under an ALTA Facultative Reinsurance Agreement
with Direct Access, modified as required by the Lender, with an
aggregate liability limit acceptable to the Lender, insuring
that the Deed of Trust constitutes a valid, fully perfected
first (and only) lien on the fee and appurtenant easement
interests in the Property and which contains: (i) full
coverage against claims of mechanics' lienors, (ii) no
exceptions or conditions other than exceptions and conditions
approved in writing by the Lender (the "Permitted Exceptions"),
and (iii) endorsements and such other coverage and affirmative
statements as the Lender or its counsel may reasonably require;
(12) Copies of recorded and/or filed releases,
reconveyances and terminations of all prior liens, mechanic
lien foreclosures and/or lis pendens which appear of record
against the Property within one hundred twenty (120) days of
the Closing Date, and evidence satisfactory to the Lender that
all such items have been released or reconveyed prior to the
Closing Date (it being expressly agreed and understood that,
except as expressly agreed to by the Lender prior to the
Closing Date, no liens will be permitted to remain by means of
indemnification or by delayed reconveyance);
(13) Such other information, documents and
certifications concerning the Property as the Lender may
reasonably request, including, without limitation, soils and
geological reports, the permanent certificate of occupancy for
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the Property and all interior space therein, any applicable
building/zoning code ordinances and zoning maps, and certified
engineering reports; and
(14) Evidence satisfactory to the Lender that all
fees, costs and expenses which are payable on or before the
Closing Date have been, or will on the Closing Date be, paid in
full.
5(b) Environmental Audit. A Level I environmental audit
shall have been performed on the Property by an environmental consulting
firm acceptable to the Lender to identify the presence of any environmental
hazards, including asbestos and other waste, and which audits shall have
included (1) a site visit and visual inspection of the Property and
adjacent properties by a trained professional, (2) a review of applicable
historical information about the Property in question and adjacent
properties, (3) appropriate inquiries with federal, state and local
environmental agencies and/or building departments, and (4) an asbestos
survey in which samples were taken and tested of suspected materials. Such
additional environmental studies, including soil samples or borings, as
recommended in the Level I audit or as reasonably requested as of the
Closing Date by the Lender, shall have been conducted.
5(c) Other Acts and Conditions. All acts and conditions
(including, without limitation, the obtaining of any necessary regulatory
approvals and the making of any required filings, recordings or
registrations) required to be done and performed and to have happened
precedent to the execution, delivery and performance of the Loan Documents
and to constitute the same legal, valid and binding obligations of the
parties thereto, enforceable in accordance with their respective terms,
shall have been done and performed and shall have happened in compliance
with all applicable laws.
5(d) Satisfactory Documentation. All documentation,
including, without limitation, documentation for corporate and legal
proceedings in connection with the transactions contemplated by the Loan
Documents shall be satisfactory in form and substance to the Lender and its
counsel and the Lender and its counsel shall have received any and all
further information and documents, which the Lender and its counsel may
reasonably have requested in connection therewith, such documents where
appropriate to be certified by proper authorities and the Borrower.
6. Representations and Warranties. As an inducement to the
Lender to enter into this Agreement and to make the Loan, the
Borrower represents and warrants to the Lender that at and as of the
date of this Agreement, at and as of the Closing Date and at and as
of all times thereafter to and including the Final Maturity Date
(unless such representation and warranty is made expressly as of the
Closing Date, in which case it shall be deemed to be made only as of
the Closing Date):
6(a) Reserved.
6(b) Existence; Compliance with Law. The Borrower: (1) has
the power and authority and the legal right to own and operate its property
and to conduct business in the manner in which it does and proposes so to
do, and (2) is in compliance with all Requirements of Law and Contractual
Obligations, the failure to comply with which could have a Material Adverse
Effect.
6(c) Power; Authorization; Enforceable Obligations. The
Borrower has the power and authority and the legal right to execute,
deliver and perform the Loan Documents to which it is party. The Loan
Documents have been duly executed and delivered by Borrower and constitute
legal, valid and binding obligations of Borrower enforceable against
Borrower in accordance with their respective terms, subject to the effect
of applicable bankruptcy and other similar laws affecting the rights of
creditors generally and the effect of equitable principles whether applied
in an action at law or a suit in equity.
6(d) No Legal Bar. The execution, delivery and performance
of the Loan Documents by the Borrower, the borrowing hereunder and the use
of the proceeds of the Loan, will not violate any Requirement of Law or any
Contractual Obligation of Borrower or create or result in the creation of
any Lien (except the Liens created by the Loan Documents) on any assets of
Borrower.
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6(e) No Material Litigation. As of the Closing Date, no
litigation, investigation or proceeding of or before any arbitrator, court
or Governmental Authority is pending or, to the knowledge of the Borrower,
threatened by or against the Borrower or the Property which, if adversely
determined, is likely to have a Material Adverse Effect.
6(f) Taxes. The Borrower has filed or caused to be filed all
tax returns that are required to be filed and have paid all taxes shown to
be due and payable on said returns or on any assessments made against it or
any of its property, including, without limitation, the Property, other
than taxes which are being contested in good faith by appropriate
proceedings and as to which Borrower has established adequate reserves in
conformity with a methodology approved by the Bank.
6(g) Federal Reserve Board Regulations. The Borrower is not
engaged nor will it engage, principally or as one of its important
activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" any "margin stock" within the respective
meanings of such terms under Regulation U.
6(h) Reserved.
6(i) Consents, Etc. No consent, approval, authorization of,
or registration, declaration or filing with any Governmental Authority or
any other Person is required on the part of the Borrower in connection with
the execution and delivery of the Loan Documents (other than filings to
perfect the Liens granted by it to the Lender under the Loan Documents) or
the performance of or compliance with the terms, provisions and conditions
hereof or thereof.
6(j) Property. With respect to the Property as of the
Closing Date:
(1) (i) Except as disclosed on the environmental
consultant's reports delivered pursuant to Paragraph 5(b)
above, no Hazardous Materials, including, without limitation,
asbestos, asbestos containing materials, polychlorinated
biphenyl or polychlorinated biphenyl containing materials, have
been integrated into the improvements located on the Property,
or into any building materials or utility facilities/outlets
comprising such improvements, or been disposed of on the
Property, in amounts or under circumstances which would require
remedial action under or otherwise violate any applicable laws,
ordinances or regulations or in amounts or under circumstances
which would materially affect the value of the Property;
(ii) no enforcement, cleanup, removal or other governmental or
regulatory actions have, at any time, been instituted,
completed or threatened against the Property, or against the
Borrower or any other Person with respect to the Property,
pursuant to any Hazardous Materials Laws; (iii) no violation of
or non-compliance with Hazardous Materials Laws has occurred
with respect to the Property at any time; (iv) no claims have,
at any time, been made or threatened by any third party against
the Property or against the Borrower with respect to the
Property, relating to damage, contribution, cost recovery
compensation, loss or injury resulting from any Hazardous
Materials, and (v) the Property is not subject to any
restrictions on the ownership, occupancy, transferability or
use of the Property under any Hazardous Materials Laws.
(2) The Property is in good condition, reasonable
wear and tear excepted, and is in compliance in all material
respects with all applicable laws and regulations, including,
without limitation, all building codes and environmental,
zoning and land use laws, and with all applicable building
permits, restrictions of record and any agreements affecting
the Property and any judgment, order or decree.
(3) The Property is insured against damage,
destruction and loss in accordance with the requirements of the
Loan Documents;
(4) All contracts, agreements, licenses, permits,
variances, commitments, undertakings and arrangements necessary
for the continued operation of the Property in the manner in
which the same is being operated at the Closing Date are in
full force and effect (such items together with any and all
additional similar items hereafter in effect as to the
Property, as any of the same may be amended, extended or
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replaced from time to time, being hereinafter referred to as
the "Operating Contracts");
(5) All water, sewer, gas, electric, telephone,
and drainage facilities and all other utilities required by law
or by the normal use and operation of the Property are
installed to the property lines of the Property, are connected
pursuant to valid permits, and are adequate to service the
Property and to permit full compliance with all Requirements of
Law and normal usage of the Property;
(6) No condemnation proceeding involving the
Property or any portion thereof has been commenced or, to the
Borrower's knowledge, is contemplated by any Governmental
Authority, nor has any portion of the Property been damaged due
to fire or other casualty;
(7) The Borrower has obtained all easements and
rights of way necessary for the normal use and operation of the
Property and to insure vehicular and pedestrian ingress to and
egress from the Property.
(8) The Borrower is not aware of any facts or
circumstances of any nature which make or are likely in the
future to make the appraisal of the Property referred to in
Paragraph 5(a)(10) above inaccurate in any respect.
7. Affirmative Covenants. The Borrower hereby covenants and agrees
with the Lender that, as long as any Obligations remain unpaid, the
Borrower shall:
7(a) Financial Statements; Other Information. Furnish or
cause to be furnished to the Lender:
(1) Within ninety-five (95) days after the end of
each of its fiscal years consolidated statements of income and
statements of changes in financial position for such year and
balance sheets as of the end of such year presented fairly in
accordance with GAAP and accompanied by an unqualified opinion
of a nationally recognized firm of independent certified public
accountants reasonably acceptable to the Lender;
(2) Within fifty (50) days after the last day of
each calendar quarter, Company-prepared statements of income
and changes in financial position of the Company for such
quarter and balance sheets as of the end of such quarter;
(3) Promptly, such additional financial and other
information as the Lender may from time to time reasonably
request, including, without limitation, interim operating
statements, rent rolls and such information as is necessary for
the Lender to participate out any of its interests in the Loan.
7(b) Payment of Indebtedness. Pay, discharge or otherwise
satisfy at or before maturity or before it becomes delinquent, defaulted or
accelerated, as the case may be, all its/his Indebtedness (including
taxes), except Indebtedness being contested in good faith and for which
provision is made to the satisfaction of the Lender or the payment thereof
in the event the Borrower is found to be obligated to pay such Indebtedness
and which Indebtedness is thereupon promptly paid by such Person.
7(c) Maintenance of Properties; Compliance. Maintain all
rights, privileges, licenses, approvals, franchises, properties and assets
necessary or desirable in the normal conduct of its/his business or the
operation of the Property (including, without limitation, all utilities
necessary for the normal use and occupancy of the Property) and comply with
all Contractual Obligations and Requirements of Law (including, without
limitation, any applicable zoning, land use or building laws or
regulations).
7(d) Inspection of Property; Books and Records; Discussions.
Keep proper books of record and account in which full, true and correct
entries in conformity with a methodology approved by the Lender and all
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Requirements of Law shall be made of all dealings and transactions in
relation to his business and activities, and permit representatives of the
Lender to visit and inspect the Property and examine and make abstracts
from any of the books and records relating thereto at any reasonable time
and as often as may reasonably be desired by the Lender.
7(e) Notices. Promptly give written notice to the Lender of:
(1) The occurrence of any Potential Default or
Event of Default; and
(2) Any litigation or proceeding or other
circumstance which could have a Material Adverse Effect and, in
any event, any litigation or proceeding involving amounts in
excess of $1,000,000.00.
7(f) Expenses. Pay all reasonable out-of-pocket expenses
(including fees and disbursements of counsel) of the Lender incident to the
preparation, negotiation and administration of the Loan Documents,
including, without limitation, maintenance of tax service contracts for the
term of the Loan, and the protection of the rights of the Lender under the
Loan Documents and of the Lender incident to the enforcement of payment of
the Obligations, whether by judicial proceedings or otherwise, including,
without limitation, in connection with bankruptcy, insolvency, liquidation,
reorganization, moratorium or other similar proceedings involving the
Borrower or a "workout" of the Obligations. The obligations of the
Borrower under this Paragraph 7(f) shall be effective and enforceable
whether or not the Loan is funded and shall survive payment of all other
Obligations.
7(g) Loan Documents. Comply with and observe all terms and
conditions of the Loan Documents.
7(h) Insurance. Obtain and maintain insurance with
responsible companies in such amounts and against such risks as are usually
carried by corporations engaged in similar businesses similarly situated
(and, in any event obtain and maintain all insurance required under the
Loan Documents), which shall in any event include extended coverage for
fire and hazard insurance for the full replacement cost of the Property and
loss of rents endorsement for a period of at least 12 months and which
shall name the Lender as loss payee and an additional insured for the
benefit of itself and the Lender as its interests may appear, and furnish
the Lender on request with full information as to all such insurance.
7(i) Further Assurances. Promptly upon request by the
Lender, do, execute, acknowledge, deliver, record, re-record, file, re-
file, register and re-register, any and all such further acts, deeds,
conveyances, security agreements, mortgages, assignments, estoppel
certificates, financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances and
other instruments the Lender may reasonably require from time to time in
order (1) to carry out more effectively the purposes of this Agreement or
any other Loan Documents, (2) to perfect and maintain the validity,
effectiveness and priority of the Liens intended to be created by the Loan
Documents, and (3) to better assure, convey, grant, assign, transfer,
preserve, protect and confirm to the Lender the rights granted or now or
hereafter intended to be granted to the Lender under the Loan Documents.
7(j) Operating Contracts. Observe and perform all terms and
conditions of all Operating Contracts and take all other actions necessary
to keep the Operating Contracts in full force and effect.
8. Negative Covenants. The Borrower hereby agrees that, as long as
any Obligations remain unpaid, the Borrower shall not, directly or
indirectly:
8(a) Liens. Create, incur, assume or suffer to exist any
Lien upon the Collateral, except: (1) as contemplated by the Loan
Documents in favor of the Lender, and (2) Permitted Exceptions.
8(b) Sale of Assets. Sell, lease, abandon or otherwise
dispose of, directly or indirectly, the Property or any interest therein,
except for dispositions of personal property disposed of in the ordinary
course of business and in the nature of furniture, furnishings, equipment
and supplies which are worn or obsolete or otherwise not needed in the
operation of the Property.
9
8(c) Changes in Property or Business; Leases. Make or allow
any changes to be made in the nature of the use of the Property or any part
thereof from that in effect on the Closing Date, or initiate or acquiesce
in any change in any zoning or other land use classification now or
hereafter in effect and affecting the Property or any part thereof if such
changes, taken alone or in the aggregate, are likely to cause a Material
Adverse Effect.
8(d) Modifications to Operating Contracts. Amend, modify or
waive any of the provisions of the Operating Contracts other than in the
ordinary course of business.
8(e) Minimum Debt Service Coverage Ratio. Permit as of the
end of any four consecutive fiscal quarter period of the Borrower the ratio
of: (1) the Borrower's after-tax profit from operations excluding
extraordinary gains or losses, acquisition expenses, capital gains or
losses from the sale of assets outside of the ordinary course of Borrower's
business and investment income or losses earned outside the ordinary course
of Borrower's business, plus depreciation and amortization (including,
without limitation, amortization of deferred stock compensation),
determined in accordance with the GAAP for such period, to (2) the current
portion of all long term debt for such period including capitalized leases,
determined in accordance with GAAP, to be less than 1.50:1.00.
9. Events of Default. Upon the occurrence of any of the following
events (an "Event of Default"):
9(a) The Borrower shall fail to pay any of the Obligations
consisting of principal, interest or fees on the date when due; or
9(b) Any representation, warranty or certification made by
the Borrower under any Loan Document or any report, certificate or
financial statement furnished in connection with any Loan Document shall be
inaccurate or incomplete in any material respect as of the date made
unless, with respect to a breach of the representations and warranties set
forth in Paragraphs 6(b), 6(c), 6(d), 6(f), 6(g), or 6(i), the Borrower
causes such representation and warranty to become true and complete in all
material respects within thirty days after any such representation or
warranty has become inaccurate or incomplete in any material respect; or
9(c) The Borrower shall fail to perform or observe any of the
terms, provisions, covenants, obligations or agreements contained in
Paragraph 8 above or under the Deed of Trust or Assignment of Leases; or
9(d) The Borrower shall fail to perform or observe any terms,
provisions, covenants, obligations or agreements contained in the Loan
Documents (other than those referred to in Paragraphs 9(a), 9(b) and 9(c)
above) and such failure shall continue for thirty (30) days; or
9(e) (1) Any Reportable Event or a Prohibited Transaction
shall occur with respect to any Plan; or (2) a notice of intent to
terminate a Plan with an Accumulated Funding Deficiency under section 4041
of ERISA shall be filed; or (3) a notice shall be received by the plan
administrator of a Plan that the PBGC has instituted proceedings to
terminate a Plan or appoint a trustee to administer a Plan; or (4) any
other event or condition shall exist which might, in the reasonable opinion
of the Lender, constitute grounds under section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan; or
(5) any Borrower or any ERISA Affiliate shall withdraw from a Multiemployer
Plan, and, in any such case arising under Section (1) through (5) above,
such event would constitute a Material Adverse Effect.
9(f) (1) The Borrower or shall commence any case, proceeding
or other action (i) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (ii) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets,
or the Borrower shall make a general assignment for the benefit of its
creditors; or (2) there shall be commenced against the Borrower any case,
proceeding or other action of a nature referred to in clause (1) above
which (i) results in the entry of any order for relief or any such
adjudication or appointment, and (ii) remains undismissed, undischarged or
unbonded for a period of sixty (60) days; or (3) there shall be commenced
10
against the Borrower any case, proceeding or other action seeking issuance
of a warrant of attachment, execution, distraint or similar process against
all or substantially all of its assets which results in the entry of an
order for any such relief which shall not have been vacated, discharged,
stayed, satisfied or bonded pending appeal within sixty (60) days from the
entry thereof; or (4) the Borrower shall take any action in furtherance of,
or indicating its consent to, approval of, or acquiescence in (other than
in connection with a final settlement), any of the acts set forth in clause
(1), (2) or (3) above; or (5) the Borrower shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as
they become due; or
9(g) One or more judgments or decrees in an aggregate amount
in excess of $1,000,000.00 shall be entered against the Borrower and all
such judgments or decrees shall not have been vacated, discharged, stayed,
satisfied or bonded pending appeal within sixty (60) days from the entry
thereof;
THEN:
Automatically upon the occurrence of an Event of Default under Paragraph
9(f) above and, in all other cases, at the option and upon declaration of
the Lender, the principal balance of the Loan and interest accrued but
unpaid thereon shall become immediately due and payable and the Lender may
proceed to exercise any and all rights, powers and remedies available to it
at law, in equity or otherwise.
10. Miscellaneous Provisions.
10(a) No Assignment. Without the prior written consent of
the Lender, the Borrower may not assign its rights or obligations under the
Loan Documents. Any assignment in violation of this provision shall
automatically be deemed null and void. Subject to the foregoing, all
provisions contained in the Loan Documents shall inure to the benefit of
the Lender, and its respective successors and assigns, and shall be binding
upon the Borrower and its successors and assigns.
10(b) Amendment. This Agreement may not be amended or terms
or provisions hereof waived unless such amendment or waiver is in writing
and signed by the Lender and the Borrower.
10(c) Cumulative Rights; No Waiver. The rights, powers and
remedies of the Lender hereunder are cumulative and in addition to all
rights, powers and remedies provided under any and all agreements among the
Borrower and the Lender relating hereto, at law, in equity or otherwise.
Any delay or failure by the Lender to exercise any right, power or remedy
shall not constitute a waiver thereof by the Lender, and no single or
partial exercise by the Lender of any right, power or remedy shall preclude
other or further exercise thereof or any exercise of any other rights,
powers or remedies.
10(d) Entire Agreement. This Agreement and the documents and
agreements referred to herein embody the entire agreement and understanding
between the parties hereto and supersede all prior agreements and
understandings relating to the subject matter hereof and thereof.
10(e) Survival. All representations, warranties, covenants
and agreements herein contained on the part of the Borrower shall survive
the termination of this Agreement and shall be effective until the
Obligations are paid and performed in full, or longer as expressly provided
herein.
10(f) Notices. All notices given by any party to the others
shall be in writing unless otherwise provided for herein, delivered by
facsimile or electronic transmission or delivered personally or by
depositing the same in the United States mail, registered, with postage
prepaid, addressed to the party at the address set forth beneath its
signature below. Any party may change the address to which notices are to
be sent by notice of such change to the other parties given as provided
herein. Such notices shall be effective on the date received or, if
mailed, on the third Business Day following the date mailed.
10(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of California
without giving effect to choice of law rules.
11
10(h) Transfers. The Borrower acknowledges that the Lender
may elect to sell, assign and otherwise transfer to other banks, savings
and loan institutions and other financial institutions interests in the
Loan and expressly agrees that the holder of any such interest shall be a
"Lender" with respect to the provisions of Paragraph 2 above. In
connection with any such transfer, the Lender is hereby authorized at any
time and from time to time following the Closing Date to disclose the Loan
Documents and any and all other documents and information supplied to the
Lender by or on behalf of the Borrower in connection herewith to any such
potential transferee.
10(i) Counterparts. This Agreement may be executed in
counterparts, each of which when so executed and delivered shall be deemed
an original, but all such counterparts together shall constitute but one
and the same instrument.
10(j) Waiver of Jury Trial. THE BORROWER AND THE LENDER EACH
WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF
ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER
LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE
PARTIES AGAINST ANY OTHER PARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER
WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER
AND THE LENDER EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE
TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER
PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR
ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY
PROVISION HEREOF OR THEREOF. THE BORROWER AND THE LENDER EACH WAIVE ANY
RIGHT TO NOTICE OR HEARING WITH RESPECT TO ANY PREJUDGMENT REMEDY. THIS
WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10(k) Reserved
10(l) Severability. The illegality or unenforceability of
any provision of this Agreement or any other Loan Document or any
instrument or agreement required hereunder or thereunder shall not in any
way affect or impair the legality or enforceability of the remaining
provisions hereof or thereof.
10(m) No Third Parties Benefited. This Agreement and the
other Loan Documents are made and entered into for the sole protection and
legal benefit of the Borrower, and the Lender and their permitted
successors and assigns, and no other Person shall be a direct or indirect
legal beneficiary of, or have any direct or indirect cause of action or
claim in connection with, this Agreement or any of the other Loan
Documents. The Lender shall have no obligation to any Person not a party
to this Agreement or other Loan Documents.
11. Definitions. For purposes of this Agreement, the terms set
forth below shall have the following meanings:
"Accumulated Funding Deficiency" shall mean a funding
deficiency described in section 302 of ERISA.
"Agreement" shall mean this Agreement, as the same may be
amended, extended or replaced from time to time.
"Applicable LIBOR Rate" shall mean during such period as the
Loan is being maintained as a LIBOR Loan, the LIBOR Rate on the first day
of the Interest Period therefor, plus 1.50%.
"Assignment of Leases" shall mean an assignment of the
Borrower's interest as lessor under all leases of the Property or any
portion thereof in form and substance acceptable to the Lender.
12
"Available Deposits" shall mean those free collected balances
maintained in interest bearing or non-interest bearing deposit accounts
(but excluding certificates of deposit) in the name of the Borrower with
the Lender (after deducting float and balances required by such Lender
under its normal practices to compensate such Lender for the maintenance of
such accounts and taking into consideration reserve requirements applicable
to such accounts) and which balances are not included in determining
"Available Deposits" or any analogous concept under any other credit
arrangements between the Lender and the Borrower.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banks in Los Angeles, California are authorized or
obligated to close their regular banking business.
"Closing Date" shall mean the date on which the Loan is funded
hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as
amended, and the rules and regulations issued thereunder as from time to
time in effect.
"Collateral" shall mean, collectively and severally, the real
and personal property and fixtures which are encumbered as collateral
security for the Obligations pursuant to the Loan Documents.
"Contact Office" shall mean the office of the Lender located at
Silicon Valley Regional Office, 000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxx Xxxx,
Xxxxxxxxxx 00000 or such other office as the Lender may from time to time
designate in writing.
"Contractual Obligation" as to any Person shall mean any
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which it or
any of its property is bound.
"Deed of Trust" shall mean a deed of trust covering the
Borrower's fee interest in the Property and all improvements thereon and
all personal property (tangible and intangible) and fixtures relating
thereto in form and substance acceptable to the Lender.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as the same may from time to time be supplemented or amended.
"ERISA Affiliate" shall mean each trade or business, including
the Borrower, whether or not incorporated, which together with the Borrower
would be treated as a single employer under section 4001 of ERISA.
"Event of Default" shall have the meaning set forth in
Paragraph 9 above.
"Final Maturity Date" shall mean the earlier to occur of: (a)
September 30, 2007, and (b) the date as of which all Obligations
outstanding hereunder shall have become due and payable in full as provided
in Paragraph 9 above.
"GAAP" shall mean generally accepted accounting principles in
the United States of America in effect from time to time.
"Governmental Authority" shall mean any nation or government,
any state or other political subdivision thereof, and any agency of any of
the foregoing and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Hazardous Materials" shall mean any flammable materials
(excluding wood products normally used in construction), explosives,
radioactive materials, hazardous wastes, toxic substances or related
materials, including, without limitation, any substances defined as or
included in the definitions of "hazardous substances," "Hazardous wastes,"
"hazardous materials," or toxic substances" under any applicable federal,
state, or local laws or regulations.
13
"Hazardous Materials Laws" shall mean any applicable federal,
state or local laws, ordinances or regulations relating to Hazardous
Materials.
"Indebtedness" of any Person shall mean all items of
indebtedness which, in accordance with GAAP and practices, would be
included in determining liabilities as shown on the liability side of a
statement of condition of such Person as of the date as of which
indebtedness is to be determined, including, without limitation, all
obligations for money borrowed and capitalized lease obligations, and shall
also include all indebtedness and liabilities of others assumed or
guaranteed by such Person or in respect of which such Person is secondarily
or contingently liable (other than by endorsement of instruments in the
course of collection) whether by reason of any agreement to acquire such
indebtedness or to supply or advance sums or otherwise.
"Interest Period" shall mean, with respect to any LIBOR Loan,
the period commencing on the date such LIBOR Loan is advanced and ending
three months or twelve months thereafter, as designated in the related Loan
Request; provided, however, that (1) 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, and (2) no Interest Period shall end after
the Final Maturity Date.
"LIBOR Loan" shall mean the Loan while it is bearing interest
at a rate based upon the LIBOR Rate.
"LIBOR Rate" shall mean, with respect to any Interest Period
for a LIBOR Loan, the rate for the applicable Interest Period shown on Page
3750 of the Telerate screen for the corresponding deposits of U.S. dollars
on the first day of such Interest Period, or, if such Telerate quote is not
available, the rate per annum which the Lender determines in its sole and
absolute discretion to be equal to the Lender's cost of acquiring funds
(adjusted for any and all assessments, surcharges and reserve requirements
pertaining to the borrowing or purchase by the Lender of such funds) in an
amount approximately equal the amount of the relevant LIBOR Loan for a
period of time approximately equal to the relevant Interest Period.
"Lien" shall mean shall mean any security interest, mortgage,
pledge, lien, claim on property, charge or encumbrance (including any
conditional sale or other title retention agreement), any lease in the
nature thereof, and the filing of or agreement to give any financial
statement under the Uniform Commercial Code of any jurisdiction.
"Loan Documents" shall mean this Agreement, the Note, the Deed
of Trust, the Assignment of Leases, the Related Collateral Documents, and
any other document, instrument or agreement executed by the Borrower in
connection herewith or therewith, including, without limitation, any and
all now existing or hereafter arising Rate Management Transaction
Documents, as any of the same may be amended, extended or replaced from
time to time. Reference to any specific Loan Document in this Agreement or
any other Loan Document shall be deemed to include any amendment, extension
or replacement thereof.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
properties, condition (financial or otherwise) or prospects of the Borrower
or the Property; (b) a material impairment of the ability of the Borrower
to perform its obligations under any Loan Document to which it is a party
included in the definition of Loan Documents set forth above; or (c) a
material adverse effect upon the legality, validity, binding effect or
enforceability against Borrower of any Loan Document to which it is a party
included in the definition of Loan Documents set forth above.
"Multiemployer Plan" shall mean a Plan described in section
4001(a)(3) of ERISA to which a Borrower or any ERISA Affiliate is required
to contribute on behalf of any of its employees.
"Note" shall mean a promissory note evidencing the Loan in form
and substance acceptable to the Lender.
"Obligations" shall mean any and all debts, obligations and
liabilities of the Borrower to the Lender (whether now existing or
hereafter arising, voluntary or involuntary, whether or not jointly owed
with others, direct or indirect, absolute or contingent, liquidated or
unliquidated, and whether or not from time to time decreased or
extinguished and later increased, created or incurred), arising out of or
relating to the Loan Documents.
14
"Operating Contracts" shall have the meaning given such term in
Paragraph 6(j)(4) above.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any successor
thereto.
"Permitted Exceptions" shall have the meaning given such term
in Paragraph 5(a)(11) above.
"Person" shall mean any corporation, natural person, firm,
joint venture, partnership, trust, limited liability company,
unincorporated organization, government or any department or agency of any
government.
"Plan" shall mean any plan (other than a Multiemployer Plan)
subject to Title IV of ERISA maintained for employees of a Borrower or any
ERISA Affiliate (and any such plan no longer maintained by a Borrower or
any of its ERISA Affiliates to which such Borrower or any of its ERISA
Affiliates has made or was required to make any contributions during the
five years preceding the date on which such plan ceased to be maintained).
"Potential Default" shall mean an event which but for the lapse
of time or the giving of notice, or both, would constitute an Event of
Default.
"Pricing Request" shall mean a written request in form
satisfactory to the Lender requesting the conversion of a Prime Rate Loan
to a LIBOR Loan or a LIBOR Loan to a Prime Rate Loan or to continue a LIBOR
Loan as such.
"Prime Rate" shall mean the fluctuating per annum rate
announced from time to time by the Lender in Los Angeles, California, as
its "Prime Rate". The Prime Rate is a rate set by the Lender based upon
various factors including the Lender's costs and desired return, general
economic conditions, and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above or below the Prime
Rate.
"Prime Rate Loan" shall have the meaning given such term in
Paragraph 2(a) above.
"Prohibited Transaction" shall mean any transaction described
in section 406 of ERISA which is not exempt by reason of section 408 of
ERISA or the transitional rules set forth in section 414(c) of ERISA and
any transaction described in section 4975(c)(1) of the Code which is not
exempt by reason of section 4975(c)(2) or section 4975(d) of the Code, or
the transitional rules of section 2003(c) of ERISA.
"Property" shall have the meaning given such term in Recital A
above and shall include, without limitation, the fee interest in and all
improvements and all real and personal property (tangible, intangible and
fixtures) located thereon.
"Rate Management Transaction Documents" shall mean all
documents, instruments and agreements executed and delivered by the
Borrower from time to time with the Lender evidencing a rate swap, basis
swap, forward rate transaction, commodity swap, commodity option, equity or
equity index swap, equity or equity index option, bond option, interest
rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, forward transaction, currency swap
transaction, cross-currency rate swap transaction, currency option or any
other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or
more interest rates, foreign currencies, commodity prices, equity prices or
other financial measures.
"Related Collateral Documents" shall have the meaning given
such term in Paragraph 4(a)(3) above.
"Reportable Event" shall mean any of the events set forth in
section 4043(b) of ERISA or the regulations thereunder, a withdrawal from a
Plan described in section 4063 of ERISA, a cessation of operations
described in section 4068(f) of ERISA, an amendment to a Plan necessitating
the posting of security under section 401(a)(29) of the Code, or a failure
to make a payment required by section 412(m) of the Code and section 302(e)
of ERISA when due.
15
"Requirements of Law" shall mean as to any Person the
Certificate of Incorporation and Bylaws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation, or a final and binding determination of an arbitrator or a
determination of a court or other Governmental Authority, 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.
"Title Policy" shall have the meaning given such term in
Paragraph 5(a)(11) above.
"Twelve Month LIBOR Loan" shall mean a LIBOR Loan with an
Interest Period of twelve months.
[Signature Page Following]
16
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above written.
BORROWER:
MICREL, INCORPORATED
/S/ Xxxxxxx X. Xxxx
---------------------
By: Xxxxxxx X. Xxxx
Title: President and C.E.O.
Address: 0000 Xxxxxxx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
LENDER:
BANK OF THE WEST
/S/ Xxxx Xxx
----------------------------
By: Xxxx Xxx
Name: Assistant Vice President
Address: Silicon Valley Regional Xxxxxx
000 Xxxxxxx Xxxx., 0xx Xxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxx,
Assistant Vice President
17
