EXECUTION VERSION
SECOND AMENDMENT TO CREDIT AGREEMENT
THIS SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of December 18, 1998, is entered into by and among:
(1) QUANTUM CORPORATION, a Delaware corporation ("Borrower");
(2) Each of the financial institutions listed in Schedule I to
the Credit Agreement referred to in Recital A below (collectively, the
"Banks") that execute this Amendment;
(3) CANADIAN IMPERIAL BANK OF COMMERCE, as administrative
agent for the Banks (in such capacity, "Administrative Agent").
(4) ABN AMRO BANK, N.V., San Francisco International Branch
("ABN"), as syndication agent for the Banks (in such capacity,
"Syndication Agent"); and
(5) BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, as
documentation agent for the Banks (in such capacity, "Documentation
Agent").
RECITALS
A. Each of (i) Borrower, (ii) the Banks, (iii) Administrative Agent,
(iv) ABN and CIBC Inc., as co-arrangers for the Banks, (v) Syndication Agent,
(vi) Documentation Agent, and (vii) BankBoston, N.A., The Bank of Nova Scotia,
Fleet National Bank and The Industrial Bank of Japan, Limited, as co-agents for
the Banks, are parties to a Credit Agreement dated as of June 6, 1997, as
amended by that certain First Amendment to Credit Agreement dated as of June 26,
1998 (as amended, the "Credit Agreement").
B. Borrower has requested the Banks, Administrative Agent, Syndication
Agent and Documentation Agent to amend the Credit Agreement in certain respects.
C. The Banks executing this Amendment, Administrative Agent,
Syndication Agent and Documentation Agent are willing so to amend the Credit
Agreement upon the terms and subject to the conditions set forth below.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Borrower, the Banks executing this Amendment, Administrative
Agent, Syndication Agent and Documentation Agent hereby agree as follows:
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1. Definitions, Interpretation. All capitalized terms defined above and
elsewhere in this Amendment shall be used herein as so defined. Unless otherwise
defined herein, all other capitalized terms used herein shall have the
respective meanings given to those terms in the Credit Agreement, as amended by
this Amendment. The rules of construction set forth in Section I of the Credit
Agreement shall, to the extent not inconsistent with the terms of this
Amendment, apply to this Amendment and are hereby incorporated by reference.
2. Amendments to Credit Agreement. Subject to the satisfaction of the
conditions set forth in Paragraph 4 below, the Credit Agreement is hereby
amended as follows:
(a) Paragraph 1.01 is hereby amended by adding thereto, in the
appropriate alphabetical order, definitions of the terms "MKE-Quantum
Dissolution Charge" and "Second Amendment Effective Date" to read in
their entirety as follows:
"MKE-Quantum Dissolution Charge" shall mean the
non-recurring charge, not to exceed $125,000,000 (pre-tax) in
the aggregate, taken by Borrower in Borrower's third fiscal
quarter in fiscal year 1999 as a result of expenses and
charges incurred by Borrower in connection with the winding up
of the affairs and dissolution of MKE-Quantum.
"Second Amendment Effective Date" shall mean December
18, 1998.
(b) Clause (xvii) of Subparagraph 5.02(a) is hereby amended by
adding thereto at the beginning of such clause the phrase "Prior to the
Second Amendment Effective Date,".
(c) Clause (ix) of Subparagraph 5.02(e) is hereby amended by
adding thereto at the beginning of such clause the phrase "Prior to the
Second Amendment Effective Date,".
(d) Clause (ii) of Subparagraph 5.02(l) is hereby amended by
(i) deleting the word "sum" in Subclause (G) thereof and replacing it
with the word "amount", (ii) deleting the "." at the end of Subclause
(G) thereof and replacing it with a ";", and (ii) adding the following
immediately after Subclause (G):
minus
(H) An amount equal to (1) the after tax amount of
any MKE-Quantum Dissolution Charge minus (2) the after tax
gains (if any) realized by Borrower upon any Transfer of the
assets or property of MKE-Quantum.
(e) Clause (iii) of Subparagraph 5.02(l) is hereby amended by
(i) deleting the "." at the end of the first proviso clause thereof,
and (ii) adding thereto immediately after the first proviso clause, a
second proviso clause to read in its entirety as follows:
; provided, further, that for purposes of calculating
Borrower's net income for any period which includes the
quarter ending on or about December 31, 1998, such
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calculation shall exclude the after tax sum of any MKE-Quantum
Dissolution Charge minus the after tax gains (if any) realized
by Borrower upon any Transfer of the assets or property of
MKE-Quantum.
3. Representations and Warranties. Borrower hereby represents and
warrants to Administrative Agent, Syndication Agent, Documentation Agent and the
Banks that the following are true and correct on the date of this Amendment and
that, after giving effect to the amendments set forth in Paragraph 2 above, the
following will be true and correct on the Effective Date (as defined below):
(a) The representations and warranties of Borrower and its
Subsidiaries set forth in Paragraph 4.01 of the Credit Agreement and in
the other Credit Documents are true and correct in all material
respects as if made on such date (except for representations and
warranties expressly made as of a specified date, which shall be true
and correct in all material respects as of such date);
(b) No Default or Event of Default has occurred and is
continuing; and
(c) Each of the Credit Documents is in full force and effect.
(Without limiting the scope of the term "Credit Documents," Borrower expressly
acknowledges in making the representations and warranties set forth in this
Paragraph 3 that, on and after the date hereof, such term includes this
Amendment.)
4. Effective Date. The amendments effected by Paragraph 2 above shall
become effective on December 18, 1998 (the "Effective Date"), subject to receipt
by Administrative Agent and the Banks on or prior to the Effective Date of the
following, each in form and substance satisfactory to Administrative Agent, the
Banks executing this Amendment and their respective counsel:
(a) This Amendment duly executed by Borrower, the Majority
Banks, Administrative Agent, Syndication Agent and Documentation Agent;
(b) A Certificate of the Secretary or an Assistant Secretary
of Borrower, dated the Effective Date, certifying that (i) the
Certificate of Incorporation and Bylaws of Borrower, in the form
delivered to Administrative Agent on the Closing Date, are in full
force and effect and have not been amended, supplemented, revoked or
repealed since such date, (ii) that the resolution of Borrower, in the
form delivered to Administrative Agent on the Closing Date, is in full
force and effect and has not been amended, supplemented, revoked or
repealed since such date, and (iii) the incumbency, signatures and
authority of the officers of Borrower authorized to execute, deliver
and perform the Credit Agreement, this Amendment, the other Credit
Documents and all other documents, instruments or agreements relating
thereto executed or to be executed by Borrower and indicating each such
officer which is an Executive Officer or Authorized Financial Officer;
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(c) A nonrefundable amendment fee to be paid to each Bank that
executes this Amendment on or before December 18, 1998 equal to 0.10%
of each such Bank's respective Proportionate Share; and
(d) Such other evidence as Administrative Agent or any Bank
executing this Amendment 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 Amendment
and the other Credit Documents.
5. Effect of this Amendment. On and after the Effective Date, each
reference in the Credit Agreement and the other Credit Documents to the Credit
Agreement shall mean the Credit Agreement as amended hereby. Except as
specifically amended above, (a) the Credit Agreement and the other Credit
Documents shall remain in full force and effect and are hereby ratified and
confirmed and (b) the execution, delivery and effectiveness of this Amendment
shall not, except as expressly provided herein, operate as a waiver of any
right, power, or remedy of the Banks or Administrative Agent, nor constitute a
waiver of any provision of the Credit Agreement or any other Credit Document.
6. Miscellaneous.
(a) Counterparts. This Amendment 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.
(b) Headings. Headings in this Amendment are for convenience
of reference only and are not part of the substance hereof.
(c) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California
without reference to conflicts of law rules.
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IN WITNESS WHEREOF, Borrower, Administrative Agent, Syndication Agent,
Documentation Agent and the Banks executing this Amendment have caused this
Amendment to be executed as of the day and year first above written.
QUANTUM CORPORTION, as Borrower
By: /s/ Xxxxxxx X. Xxxxx, Xx.
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Name: Xxxxxxx X. Xxxxx, Xx.
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Title: Vice President, Finance & Treasurer
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CANADIAN IMPERIAL BANK OF COMMERCE,
as Administrative Agent
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Managing Director, CIBC Xxxxxxxxxxx
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Corp. as AGENT
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ABN AMRO BANK N.V., San Francisco
International Branch, as Syndication Agent
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
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Title: Group Vice President
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By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
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Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Documentation Agent
By: /s/ Xxxxx Xx Xxxxx
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Name: Xxxxx Xx Xxxxx
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Title: Managing Director
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ABN AMRO BANK N.V., San Francisco
International Branch, as a Bank
By: /s/ Xxxxx X. Xxx
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Name: Xxxxx X. Xxx
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Title: Group Vice President
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By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
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Title: Vice President
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BANKBOSTON, N.A., as a Bank
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Vice President
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BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as a Bank
By: /s/ Xxxxx Xx Xxxxx
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Name: Xxxxx Xx Xxxxx
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Title: Managing Director
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BANQUE NATIONALE DE PARIS, as a Bank
By: /s/ Xxxxxxx X. XxXxxxxxxxx /s/ Xxxxx X. Xxxxxx
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Name: Xxxxxxx X. XxXxxxxxxxx Xxxxx X. Xxxxxx
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Title: Vice President Vice President
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PARIBAS, as a Bank
By: /s/ Xxxxxxxx Xxxxx
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Name: Xxxxxxxx Xxxxx
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Title: Vice President
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By: /s/ Xxx X. Xxxxxxx
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Name: Xxx X. Xxxxxxx
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Title: Managing Director
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CIBC INC., as a Bank
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: Managing Director, CIBC Xxxxxxxxxxx
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Corp. as AGENT
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DEUTSCHE BANK A.G., NEW YORK AND/OR
CAYMAN ISLANDS BRANCHES, as a Bank
By: /s/ Andre Heitbaum
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Name: Andre Heitbaum
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Title: Asst. Vice President
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By: /s/ Xxxxxxx X. XxXxxxx
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Name: Xxxxxxx X. XxXxxxx
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Title: Director
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FLEET NATIONAL BANK, as a Bank
By: /s/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
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Title: Vice President
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KEYBANK NATIONAL ASSOCIATION, as a Bank
By: /s/ Xxxx X. Xxxxx
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Name: Xxxx X. Xxxxx
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Title: Assistant Vice President
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MELLON BANK, as a Bank
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Vice President
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ROYAL BANK OF CANADA, as a Bank
By: /s/ Xxxxxxx X. Xxxx
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Name: Xxxxxxx X. Xxxx
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Title: Senior Manager
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SANWA BANK LIMITED, SAN XXXXXXXXX XXXXXX, as a Bank
By: /s/ Xxxxx Xxxxx
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Name: Xxxxx Xxxxx
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Title: First Vice President & Manager
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THE BANK OF NOVA SCOTIA, as a Bank
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
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Title: Finance Manager
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THE FUJI BANK, LIMITED, as a Bank
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Joint General Manager
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THE INDUSTRIAL BANK OF JAPAN, LIMITED, as a Bank
By: /s/ Xxxxxxx Xxxxx
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Name: Xxxxxxx Xxxxx
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Title: Deputy General Manager
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THE LONG-TERM CREDIT BANK OF JAPAN, LTD., as a Bank
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Deputy General Manager
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THE MITSUBISHI TRUST AND BANKING
CORPORATION, LOS ANGELES AGENCY, as a Bank
By: /s/ Yasushi Satomi
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Name: Yasushi Satomi
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Title: Senior Vice President
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THE SUMITOMO BANK, LIMITED, as a Bank
By: /s/ Xxxx Xxxxxxx
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Name: Xxxx Xxxxxxx
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Title: Vice President
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THE SUMITOMO TRUST AND BANKING CO., LTD., as a Bank
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
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Title: Manager & Vice President
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UNION BANK OF CALIFORNIA, N.A., as a Bank
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Vice President
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