EXHIBIT 10.31
QUANTUM CORPORATION
_ THIRD AMENDMENT TO CREDIT AGREEMENT
_
_ THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT"),
_dated as of September 29, 1995, 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, (such financial institutions to be referred to herein
_ collectively as the "EXISTING BANKS");
_
_ (3) ABN AMRO BANK N.V., San Francisco International
_ Branch ("ABN"), BARCLAYS BANK PLC ("BARCLAYS") and CIBC INC.
_ ("CIBC"), as managing agents for the Existing Banks
_ (collectively in such capacity, the "MANAGING AGENTS");
_
_ (4) BANK OF AMERICA NATIONAL TRUST AND SAVINGS
_ ASSOCIATION, THE FIRST NATIONAL BANK OF BOSTON, CHEMICAL
_ BANK and THE INDUSTRIAL BANK OF JAPAN, LIMITED, as co-agents
_ for the Existing Banks;
_
_ (5) CANADIAN IMPERIAL BANK OF COMMERCE, as
_ administrative and collateral agent for the Existing Banks
_ (in such capacities, the "ADMINISTRATIVE AGENT"); ABN, as
_ syndication agent for the Existing Banks; and Barclays, as
_ documentation agent for the Existing Banks; and
_
_ (6) THE FUJI BANK, LIMITED, a Japanese banking
_ corporation (the "NEW BANK").
_
_
_ RECITALS
_
_ A. Borrower, the Existing Banks, Managing Agents and
_Administrative Agent are parties to a Credit Agreement dated as
_of October 3, 1994, as amended by a First Amendment to Credit
_Agreement dated as of February 15, 1995 and a Second Amendment to
_Credit Agreement dated as of June 26, 1995 (as so amended, the
_"CREDIT AGREEMENT"), pursuant to which the Existing Banks have
_provided certain credit facilities to Borrower.
_
_ B. Borrower has requested the Existing Banks, Managing
_Agents and Administrative Agent to amend the Credit Agreement to
_increase the amount of the credit facilities, to add the New Bank
_and to make certain other changes.
_
_ C. The Existing Banks, Managing Agents and Administrative
_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 Existing
_Banks, Managing Agents, Administrative Agent and the New Bank
_hereby agree as follows:
_
_
_ 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, except that the terms "Issuing Bank," "Issuing Banks'
_Fee Letter," "LC Applications," "LC Issuance Fees," "LC Paying
_Agent" and "LC Usage Fees" are used in PARAGRAPHS 4, 5 AND 6
_below with the respective meanings given to those terms in the
_Credit Agreement prior to 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 amended by changing the
_ definitions of the following terms set forth therein to read
_ in their entirety as follows:
_
_ "BANKS" shall have the meaning given to that term
_ in CLAUSE (2) OF THE INTRODUCTORY PARAGRAPH HEREOF.
_
_ "COMMITMENTS" shall mean, collectively, the
_ Revolving Loan Commitments and the Term Loan
_ Commitments.
_
_ "CREDIT DOCUMENTS" shall mean and include this
_ Agreement, the Notes, the Security Documents and the
_ Agents' Fee Letters; all documents, instruments and
_ agreements delivered to any Agent or any Bank pursuant
_ to PARAGRAPH 3.01; and all other documents, instruments
_ and agreements delivered by Borrower or any of its
_ Subsidiaries to any Agent or Bank in connection with
_ this Agreement on or after the date of this Agreement.
_
_ "CREDIT EVENT" shall mean the making of any Loan,
_ the conversion of any Revolving Base Rate Loan or Term
_ Base Rate Borrowing Portion into a Revolving LIBOR Loan
_ or Term LIBOR Borrowing Portion or the selection of a
_ new Interest Period for any Revolving LIBOR Loan or
_ Term LIBOR Borrowing Portion.
_
_ "DEBT SERVICE COVERAGE RATIO" shall mean, with
_ respect to any Person for any period, the ratio,
_ determined on a consolidated basis in accordance with
_ GAAP where applicable, of;
_
_ (a) The Adjusted Net Income of such Person
_ and its Subsidiaries for such period;
_
_ TO
_
_ (b) The sum of (i) all principal payments on
_ Indebtedness for borrowed money of such Person and
_ its Subsidiaries scheduled for payment during such
_ period, (ii) fifty percent (50%) of all Capital
_ Expenditures of such Person and its Subsidiaries
_ for such period, and (iii) all dividends paid by
_ such Person and its Subsidiaries during such
_ period (excluding any dividends paid to such
_ Person).
_
_ (In calculating the Debt Service Coverage Ratio of
_ Borrower for any period, the principal payments
_ "scheduled for payment during such period" on the Term
_ Loans shall be the Term Loan principal payments
_ actually scheduled for payment during such period
_ pursuant to SUBPARAGRAPH 2.02(F), except that, for the
_ period January 1, 1995 through December 31, 1995, the
_ principal payments "scheduled for payment during such
_ period" on the Term Loans shall be deemed to be the
_ principal payment due on the Term Loans on
_ September 30, 1995 and one-half of the principal
_ payment due on the Term Loans on March 31, 1996.)
_
_ "DEFAULTING BANK" shall mean a Bank which has
_ failed to fund its portion of any Borrowing which it is
_ required to fund under this Agreement and has continued
_ in such failure for three (3) Business Days after
_ written notice from Administrative Agent.
_
_ "DESIGNATED ASSET SALE PROCEEDS" shall mean, for
_ any fiscal year of Borrower, the Net Proceeds payable
_ to Borrower and its Subsidiaries (to the extent of
_ Borrower's ownership interest therein) from the sale of
_ assets (including the direct or indirect sale of any
_ stock or other Equity Securities of any Subsidiary)
_ during such year, other than any sale permitted by
_ CLAUSE (I), (II), (III), (IV), (VI) OR (IX) OF
_ SUBPARAGRAPH 5.02(C) or any license permitted by CLAUSE
_ (V) OF SUBPARAGRAPH 5.02(C).
_
_ "FIXED CHARGE COVERAGE RATIO" shall mean, with
_ respect to any Person for any period, the ratio,
_ determined on a consolidated basis in accordance with
_ GAAP where applicable, of;
_
_ (a) The remainder of (i) EBITDA of such
_ Person and its Subsidiaries for such period, MINUS
_ (ii) fifty percent (50%) of all Capital
_ Expenditures of such Person and its Subsidiaries
_ for such period;
_
_ TO
_
_ (b) All Interest Expenses of such Person and
_ its Subsidiaries for such period.
_
_ "MATURITY" shall mean, with respect to any Loan,
_ interest, fee or other amount payable by Borrower under
_ this Agreement or the other Credit Documents, the date
_ such Loan, interest, fee or other amount becomes due,
_ whether upon the stated maturity or due date, upon
_ acceleration or otherwise.
_
_ "PROPORTIONATE SHARE" shall mean, with respect to
_ each Bank at any time, a fraction (expressed as a
_ percentage rounded to the sixth digit to the right of
_ the decimal point), the numerator of which is the sum
_ at such time of such Bank's Revolving Loan Commitment
_ and Term Loan and the denominator of which is the sum
_ at such time of the Total Revolving Loan Commitment and
_ the Term Loan Borrowing.
_
_ "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 sum at such time of all cash, cash
_ equivalents (less than ninety (90) days in term),
_ short-term marketable securities (less than one
_ (1) year in term) and accounts receivable of such
_ Person and its Subsidiaries (less all reserves
_ therefor);
_
_ TO
_
_ (b) The current liabilities of such Person
_ and its Subsidiaries at such time.
_
_ "REQUIRED BANKS" shall mean (a) at any time Loans are
_ outstanding and the Banks are obligated to make
_ Revolving Loans pursuant to their Revolving Loan
_ Commitments, Banks holding more than sixty-six and two
_ thirds percent (66 2/3%) of the aggregate principal
_ amount of all Loans outstanding, calculated as if
_ Revolving Loans in the full amount of the Banks'
_ Revolving Loan Commitments were outstanding, (b) at any
_ time Loans are outstanding and the Banks are not
_ obligated to make Revolving Loans pursuant to their
_ Revolving Loan Commitments, Banks holding more than
_ sixty-six and two thirds percent (66 2/3%) of the
_ aggregate principal amount of all Loans outstanding and
_ (c) at any time no Loans are outstanding, Banks whose
_ aggregate Revolving Loan Commitments exceed sixty-six
_ and two thirds percent (66 2/3%) of the Total Revolving
_ Loan Commitment at such time.
_
_ "REVOLVING LOAN COMMITMENT" shall mean, with
_ respect to any Bank at any time, such Bank's Revolving
_ Loan Proportionate Share at such time of the Total
_ Revolving Loan Commitment at such time.
_
_ "TERM LOAN COMMITMENT" shall mean, with respect to
_ any Bank at any time, such Bank's Term Loan
_ Proportionate Share at such time of the Total Term Loan
_ Commitment at such time.
_
_ "UNUSED COMMITMENT" shall mean, at any time after
_ this Agreement is executed by Borrower, the Agents and
_ Banks, the remainder of (a) the Total Revolving Loan
_ Commitment at such time minus (b) the sum of the
_ aggregate principal amount of all Revolving Loans then
_ outstanding.
_
_ (b) PARAGRAPH 1.01 is further amended by changing the
_ definitions of "Eligible Borrower Accounts," "Eligible
_ Borrower Inventory" and "Eligible Quantum Europe Accounts"
_ as follows:
_
_ (i) The definition of "ELIGIBLE BORROWER
_ ACCOUNTS" is amended by changing CLAUSE (G) and CLAUSE
_ (J) thereof to read in their entirety as follows:
_
_ (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) or (ii) an
_ Affiliate of Borrower;
_
_ (j) Accounts owed by an account debtor
_ having either (i) a long-term debt rating of at
_ least BBB (or its equivalent) from Standard and
_ Poor's Ratings Group or (ii) a short-term debt
_ rating of at least A-1 (or its equivalent) from
_ Standard and Poor's Ratings Group, to the extent
_ the total accounts owed by such account debtor to
_ Borrower exceed thirty percent (30%) of Borrower's
_ total accounts;
_
_ (ii) The definition of "ELIGIBLE BORROWER
_ INVENTORY" is amended by changing CLAUSE (B) thereof to
_ read in its entirety as follows:
_
_ (b) Any inventory consisting of work-in-
_ process or any other inventory not constituting
_ raw materials or finished inventory;
_
_ (iii) The definition of "ELIGIBLE QUANTUM EUROPE
_ ACCOUNTS" is amended by changing CLAUSE (J) thereof to
_ read in its entirety as follows:
_
_ (j) Accounts owed by an account debtor
_ having either (i) a long-term debt rating of at
_ least BBB (or its equivalent) from Standard and
_ Poor's Ratings Group or (ii) a short-term debt
_ rating of at least A-1 (or its equivalent) from
_ Standard and Poor's Ratings Group, to the extent
_ the total accounts owed by such account debtor to
_ Quantum Europe exceed thirty percent (30%) of
_ Quantum Europe's total accounts;
_
_ (c) PARAGRAPH 1.01 is further amended by adding
_ thereto, in the appropriate alphabetical order, the
_ following definitions to read in their entirety as follows:
_
_ "OUTSTANDING REVOLVER CREDIT" shall have the
_ meaning given to that term in SUBPARAGRAPH 2.03(A).
_
_ "REVOLVING LOAN BANK" shall mean, at any time, a
_ Bank which then has a Revolving Loan Commitment or then
_ holds an outstanding Revolving Loan.
_
_ "REVOLVING LOAN MATURITY DATE" shall have the
_ meaning given to that term in SUBPARAGRAPH 2.01(A).
_
_ "REVOLVING LOAN PROPORTIONATE SHARE" shall mean,
_ with respect to each Bank, the percentage set forth
_ under the caption "Revolving Loan Proportionate Share"
_ opposite such Bank's name on SCHEDULE I, or, if
_ changed, such percentage as may be set forth for such
_ Bank in the Register.
_
_ "SUMITOMO LC AGREEMENT" shall mean the Credit
_ Agreement dated as of September 22, 1995 among
_ Borrower, The Sumitomo Bank, Limited and other banks
_ from time to time parties thereto.
_
_ "SUMITOMO XX XXXXX" shall mean The Sumitomo Bank,
_ Limited, and the other banks from time to time parties
_ to the Sumitomo LC Agreement.
_
_ "TERM LOAN BANK" shall mean, at any time, a Bank
_ which then has a Term Loan Commitment or then holds an
_ outstanding Term Loan.
_
_ "TERM LOAN MATURITY DATE" shall have the meaning
_ given to that term in SUBPARAGRAPH 2.02(F).
_
_ "TERM LOAN PROPORTIONATE SHARE" shall mean, with
_ respect to each Bank, the percentage set forth under
_ the caption "Term Loan Proportionate Share" opposite
_ such Bank's name on SCHEDULE I, or, if changed, such
_ percentage as may be set forth for such Bank in the
_ Register.
_
_ (d) PARAGRAPH 1.01 is further amended by deleting the
_ definitions of the following terms set forth therein:
_
_ "DRAWING PAYMENT"
_
_ "EXISTING LC AGREEMENT"
_
_ "EXISTING LC APPLICATIONS"
_
_ "EXISTING LETTERS OF CREDIT"
_
_ "EXPIRATION DATE"
_
_ "ISSUING BANK"
_
_ "ISSUING BANKS' FEE LETTER"
_
_ "LC AMENDMENT APPLICATION"
_
_ "LC APPLICATIONS"
_
_ "LC COMMITMENT"
_
_ "LC FACILITY EXPIRATION DATE"
_
_ "LC ISSUANCE APPLICATION"
_
_ "LC ISSUANCE FEES"
_
_ "LC PAYING AGENT"
_
_ "LC PAYING AGENT AGREEMENT"
_
_ "LC PERCENTAGE SHARE"
_
_ "LC USAGE FEES"
_
_ "LETTER OF CREDIT"
_
_ "MATURITY DATE"
_
_ "OUTSTANDING LC CREDIT"
_
_ "OUTSTANDING REVOLVER/LC CREDIT"
_
_ "REIMBURSEMENT DUE DATE"
_
_ "REIMBURSEMENT OBLIGATION"
_
_ "REIMBURSEMENT PAYMENT"
_
_ "SECOND AMENDMENT EFFECTIVE DATE"
_
_ "TOTAL LC COMMITMENT"
_
_ (e) SUBPARAGRAPH 2.01(A) is amended to read in its
_ entirety as follows:
_
_ (a) REVOLVING LOAN AVAILABILITY. Subject to the
_ terms and conditions of this Agreement (including the
_ amount limitations set forth in PARAGRAPH 2.03), each
_ Bank severally agrees to advance to Borrower from time
_ to time during the period beginning on the Closing Date
_ and ending on September 30, 1998 (the "REVOLVING LOAN
_ MATURITY DATE") such revolving loans as Borrower may
_ request under this PARAGRAPH 2.01 (individually, a
_ "REVOLVING LOAN"); PROVIDED, HOWEVER, that (i) the
_ 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 Three Hundred Twenty-Five Million Dollars
_ ($325,000,000) (such amount, as reduced from time to
_ time pursuant to this Agreement, to be referred to
_ herein as the "TOTAL REVOLVING LOAN COMMITMENT"). All
_ Revolving Loans shall be made on a pro rata basis by
_ the Banks in accordance with their respective Revolving
_ Loan Proportionate Shares, with each Revolving Loan
_ Borrowing to be comprised of a Revolving Loan by each
_ Bank equal to such Bank's Revolving Loan 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.
_
_ (f) SUBPARAGRAPH 2.01(E) is amended by changing the
_ term "Maturity Date" in the one place it appears in CLAUSE
_ (I)(C) thereof to "Revolving Loan Maturity Date".
_
_ (g) SUBPARAGRAPH 2.01(F) is amended by changing the
_ term "Maturity Date" in the one place it appears in the
_ first sentence thereof to "Revolving Loan Maturity Date".
_
_ (h) PARAGRAPH 2.01A is deleted in its entirety.
_
_ (i) SUBPARAGRAPH 2.02(A) is amended by changing the
_ term "Proportionate Shares" in the two places it appears in
_ the second sentence thereof to "Term Loan Proportionate
_ Shares".
_
_ (j) SUBPARAGRAPH 2.02(E) is amended by changing the
_ term "Maturity Date" in the one place it appears in CLAUSE
_ (I)(C) thereof to "Term Loan Maturity Date".
_
_ (k) SUBPARAGRAPH 2.02(F) is amended by changing the
_ first sentence thereof to read in its entirety as follows:
_
_ Subject to SUBPARAGRAPH 2.05(D), Borrower shall repay
_ the principal amount of the Term Loans in five (5)
_ equal installments of $25,000,000 each payable on the
_ last day of each March and September, commencing
_ September 30, 1995 and ending on September 30, 1997
_ (each such date to be referred to herein as a "TERM
_ LOAN INSTALLMENT DATE"); PROVIDED, HOWEVER, that the
_ principal payment due on September 30, 1997 (the "TERM
_ LOAN MATURITY DATE") shall be in the amount necessary
_ to pay all remaining unpaid principal on all Term
_ Loans.
_
_ (l) SUBPARAGRAPH 2.03(A) is amended by changing CLAUSE
_ (I) thereof to read in its entirety as follows:
_
_ (i) The aggregate principal amount of all
_ Revolving Loans outstanding at any time (the
_ "OUTSTANDING REVOLVER CREDIT") shall not exceed an
_ amount (the "BORROWING BASE") equal to the lesser at
_ such time of:
_
_ (A) The Total Revolving Loan Commitment at
_ such time; and
_
_ (B) The sum at such time of:
_
_ (1) Ninety percent (90%) of Eligible
_ Borrower Accounts owed by an account debtor
_ having either (y) a long-term debt rating of
_ at least BBB (or its equivalent) from
_ Standard and Poor's Ratings Group or (z) a
_ short-term debt rating of at least A-1 (or
_ its equivalent) from Standard and Poor's
_ Ratings Group;
_
_ (2) Eighty percent (80%) of Eligible
_ Borrower Accounts owed by other account
_ debtors;
_
_ (3) The lesser at such time of (y)
_ thirty percent (30%) of Eligible Borrower
_ Inventory and (z) $60,000,000; and
_
_ (4) If the Quantum Europe Note and
_ Borrower's Lien in the accounts of Quantum
_ Europe securing the Quantum Europe Note are
_ then subject to a first priority perfected
_ security interest (or Similar Lien) in favor
_ of Administrative Agent for the benefit of
_ the Agents and Banks, the least at such time
_ of (x) the outstanding principal amount of
_ the Quantum Europe Note, (y) $65,000,000 and
_ (z) sixty percent (60%) of the Eligible
_ Quantum Europe Accounts securing the Quantum
_ Europe Note.
_
_ (m) SUBPARAGRAPH 2.03(B) is amended by changing
_ CLAUSES (I) AND (II) thereof to read in their entirety as
_ follows:
_
_ (i) Borrower may not reduce the Total Revolving
_ Loan Commitment if, after giving effect to such
_ reduction, the Outstanding Revolver Credit would exceed
_ the Total Revolving Loan Commitment as so reduced; and
_
_ (ii) Borrower may not cancel the Total Revolving
_ Loan Commitment if, after giving effect to such
_ cancellation, any Revolving Loan would remain
_ outstanding.
_
_ (n) SUBPARAGRAPH 2.04(C) is amended by changing the
_ term "Maturity Date" in the one place it appears in the
_ first sentence thereof and the two places it appears in the
_ last sentence thereof to "Revolving Loan Maturity Date".
_
_ (o) SUBPARAGRAPH 2.04(D) is deleted in its entirety.
_
_ (p) SUBPARAGRAPH 2.05(C) is amended by changing the
_ term "Outstanding Revolver/LC Credit" in the one place it
_ appears in CLAUSE (I) thereof to "Outstanding Revolver
_ Credit".
_
_ (q) SUBPARAGRAPH 2.05(C) is further amended by
_ changing CLAUSES (IV), (V) , (VI) AND (VII) thereof to read
_ in their entirety as follows:
_
_ (iv) If, at any time on or after twelve (12)
_ months from the Closing Date, Borrower issues or sells
_ any MKE Subordinated Debt, Borrower shall, immediately
_ after such issuance or sale, prepay Term Loans in an
_ aggregate principal amount equal to fifty percent (50%)
_ of the Net Proceeds of such debt.
_
_ (v) If, at any time after the Closing Date,
_ Borrower issues or sells any other Subordinated Debt
_ (other than any MKE Subordinated Debt), Borrower shall,
_ immediately after such issuance or sale, prepay Term
_ Loans in an aggregate principal amount equal to fifty
_ percent (50%) of the Net Proceeds of such debt.
_
_ (vi) If, at any time after the Closing Date,
_ Borrower issues or sells any other Indebtedness for
_ borrowed money, including Indebtedness evidenced by
_ notes, bonds, debentures or other similar instruments
_ (other than Subordinated Debt or any Indebtedness
_ permitted by CLAUSE (I), (III), (XI), (XV) OR (XVIII)
_ OF SUBPARAGRAPH 5.02(A)), Borrower shall, immediately
_ after such issuance or sale, prepay Term Loans in an
_ aggregate principal amount equal to one hundred percent
_ (100%) of the Net Proceeds of such debt.
_
_ (vii) If, at any time after the Closing Date,
_ Borrower issues or sells any Equity Securities (other
_ than an issuance or sale where the total proceeds are
_ less than $10,000,000), Borrower shall, immediately
_ after such issuance or sale, prepay Term Loans in an
_ aggregate principal amount equal to fifty percent (50%)
_ of the Net Proceeds of such Equity Securities.
_
_ (r) SUBPARAGRAPH 2.05(D) is amended by changing the
_ term "Maturity Date" in the one place it appears in the
_ second sentence thereof to "Term Loan Maturity Date".
_
_ (s) SUBPARAGRAPH 2.06(C) is amended by changing the
_ parenthetical on the third and fourth lines thereof to read
_ in its entirety as follows:
_
_ (including, without limitation, principal or interest
_ payable on any Loan or interest thereon, any fees or
_ other amounts)
_
_ (t) SUBPARAGRAPH 2.06(D) is amended to read in its
_ entirety as follows:
_
_ (d) APPLICATION OF PAYMENTS. All payments
_ hereunder shall be applied first to unpaid fees, costs
_ and expenses then due and payable under this Agreement
_ or the other Credit Documents, second to accrued
_ interest then due and payable under this Agreement or
_ the other Credit Documents and finally to reduce the
_ principal amount of outstanding Loans.
_
_ (u) SUBPARAGRAPH 2.08(A) is amended by changing the
_ first sentence thereof to read in its entirety as follows:
_
_ Each Bank shall, before 11:00 A.M. on the date of each
_ Borrowing, make available to Administrative Agent at
_ its office specified in PARAGRAPH 8.01, in same day or
_ immediately available funds, such Bank's pro rata share
_ of such Borrowing.
_
_ (v) SUBPARAGRAPH 2.08(B) is amended to read in its
_ entirety as follows:
_
_ (b) BANK FAILURE TO FUND. Unless Administrative
_ Agent shall have received notice from a Bank prior to
_ the date of any Borrowing that such Bank will not make
_ available to Administrative Agent such Bank's pro rata
_ share of such Borrowing, Administrative Agent may
_ assume that such Bank has made such portion available
_ to Administrative Agent on the date of such Borrowing
_ in accordance with SUBPARAGRAPH 2.08(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 pro rata share of
_ any Borrowing available to Administrative Agent on or
_ prior to the date of such 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 Borrowing through the third Business Day
_ thereafter and (ii) the Base Rate thereafter. A
_ certificate of Administrative Agent submitted to any
_ Bank with respect to any amounts owing under this
_ SUBPARAGRAPH 2.08(B) shall be conclusive absent
_ manifest error. If any Bank's pro rata share of any
_ Borrowing is not in fact made available to
_ Administrative Agent by such Bank within three (3)
_ Business Days after the date of such Borrowing,
_ Borrower shall pay to Administrative Agent, on demand,
_ an amount equal to such pro rata 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 Loans
_ comprising such Borrowing.
_
_ (w) SUBPARAGRAPH 2.08(C) is amended to read in its
_ entirety as follows:
_
_ (c) BANKS' OBLIGATIONS SEVERAL. The failure of
_ any Bank to make the Loan to be made by it as part of
_ any Borrowing shall not relieve any other Bank of its
_ obligation hereunder to make its Loan on the date of
_ such Borrowing, but no Bank shall be responsible for
_ the failure of any other Bank to make the Loan to be
_ made by such other Bank on the date of any Borrowing.
_
_ (x) SUBPARAGRAPH 2.09(A) is amended by changing CLAUSE
_ (I) thereof to read in its entirety as follows:
_
_ (i) Each Revolving Loan Borrowing and each
_ reduction of the Total Revolving Loan Commitment shall
_ be made by or shared among the Banks pro rata according
_ to their respective Revolving Loan Proportionate
_ Shares; the Term Loan Borrowing shall be made by the
_ Banks pro rata according to their respective Term Loan
_ Proportionate Shares;
_
_ (y) SUBPARAGRAPH 2.09(A) is further amended by (i)
_ changing the term "Proportionate Share" in the one place it
_ appears in CLAUSE (IV) thereof to "Revolving Loan
_ Proportionate Share"; (ii) adding the word "and" at the end
_ of CLAUSE (V) thereof; (iii) deleting CLAUSES (VI) AND (VII)
_ in their entirety; and (iv) changing the designation of
_ CLAUSE (VIII) to "(vi)".
_
_ (z) SUBPARAGRAPH 2.09(B) is amended by changing the
_ phrase "Loans or Reimbursement Obligations" in the three
_ places it appears in the first sentence thereof to "Loans".
_
_ (aa) SUBPARAGRAPH 2.10(C) is amended by changing the
_ phrase "Revolving LIBOR Loan, Term LIBOR Borrowing Portion
_ or Letter of Credit or such Bank's Commitments" where it
_ appears in CLAUSE (III) thereof and in the third and fourth
_ lines thereafter to "Revolving LIBOR Loan or Term LIBOR
_ Borrowing Portion or such Bank's Commitments".
_
_ (bb) SUBPARAGRAPH 2.10(D) is amended by deleting the
_ words ", the Letters of Credit" where they appear once in
_ CLAUSE (II) of the first sentence thereof.
_
_ (cc) SUBPARAGRAPH 2.13(A) is amended by adding thereto,
_ immediately after CLAUSE (VI), a new proviso to read in its
_ entirety as follows:
_
_ PROVIDED, HOWEVER, that, after any sale of the property
_ covered by the Borrower Mortgage as permitted by CLAUSE
_ (IX) OF SUBPARAGRAPH 5.02(C), (A) the Obligations shall
_ not be secured by the Borrower Mortgage and (B)
_ Administrative Agent shall execute such documents,
_ instruments and agreements as Borrower may reasonably
_ request to release the Borrower Mortgage.
_
_ (dd) SUBPARAGRAPH 3.02(A) is amended to read in its
_ entirety as follows:
_
_ (a) Borrower shall have delivered to
_ Administrative Agent the Notice of Borrowing, Notice of
_ Conversion or Notice of Interest Period Selection, as
_ the case may be, for such Credit Event in accordance
_ with this Agreement;
_
_ (ee) SUBPARAGRAPH 3.02(B) is amended by changing CLAUSE
_ (III) thereof to read in its entirety as follows:
_
_ (iii) In the case of Credit Events with respect to
_ Revolving Loan Borrowings, no adverse change in the
_ Borrowing Base shall have occurred since the date of
_ the most recent Borrowing Base Certificate; and
_
_ (ff) PARAGRAPH 3.02 is further amended by changing the
_ last sentence thereof to read in its entirety as follows:
_
_ The submission by Borrower to Administrative Agent of
_ each Notice of Borrowing, each Notice of Conversion
_ (other than a notice for a conversion to a Revolving
_ Base Rate Loan or a Term Base Rate Loan Portion) and
_ each Notice of Interest Period Selection shall be
_ deemed to be a representation and warranty by Borrower
_ as of the date thereon as to the above.
_
_ (gg) SUBPARAGRAPH 5.02(A) is amended by changing
_ CLAUSES (III), (VI), (VIII), (XI), (XVII) AND (XVIII)
_ thereof to read in their entirety as follows:
_
_ (iii) Indebtedness under purchase money loans and
_ Capital Leases incurred by Borrower or any of its
_ Subsidiaries to finance the acquisition by such Person
_ of real property, fixtures or equipment provided that
_ (A) in each case, (y) such Indebtedness is incurred by
_ such Person at the time of, or not later than forty-
_ five (45) days after, the acquisition by such Person of
_ the property so financed and (z) such Indebtedness does
_ not exceed the purchase price of the property so
_ financed and (B) the aggregate amount of such
_ Indebtedness outstanding at any time does not exceed
_ $40,000,000;
_
_ (vi) Indebtedness of Borrower under the Sumitomo
_ LC Agreement, provided that (A) the only credit
_ extended to Borrower by the Sumitomo XX Xxxxx pursuant
_ to the Sumitomo LC Agreement consists of letters of
_ credit issued for the benefit of MKE or its affiliates
_ to secure obligations owed by Borrower to the
_ beneficiaries for the purchase price of inventory; (B)
_ the sum at any time of the aggregate face amount of all
_ letters of credit issued by the Sumitomo XX Xxxxx under
_ the Sumitomo LC Agreement plus the aggregate amount of
_ all unreimbursed drawings under such letters of credit
_ does not exceed eighty-five million Dollars
_ ($85,000,000); (C) the Indebtedness of Borrower under
_ the Sumitomo LC Agreement is at all times unsecured;
_ and (D) the financial covenants of Borrower set forth
_ in the Sumitomo LC Agreement are not more restrictive
_ than the financial covenants of Borrower set forth in
_ SUBPARAGRAPH 5.02(M);
_
_ (viii) Indebtedness of Borrower to MKE, provided
_ that (A) such Indebtedness is subordinated to the
_ Obligations on terms and conditions no less favorable
_ to the Agents and Banks than those set forth on EXHIBIT
_ R or as otherwise approved by the Required Banks; (B)
_ the Net Proceeds of such Indebtedness are applied to
_ prepay the Term Loans as required by SUBPARAGRAPH
_ 2.05(C); and (C) the aggregate amount of all
_ Subordinated Debt of Borrower (including MKE
_ Subordinated Debt) does not exceed $300,000,000;
_
_ (xi) Indebtedness of Borrower and its Subsidiaries
_ under initial or successive refinancings of any
_ Indebtedness permitted by CLAUSE (II), (III) OR (VI)
_ above, provided that (A) the principal amount of any
_ such refinancing does not exceed the principal amount
_ of the Indebtedness being refinanced and (B) the
_ material terms and provisions of any such refinancing
_ (including maturity, redemption, prepayment, default
_ and subordination provisions) are no less favorable to
_ the Banks than the Indebtedness being refinanced;
_
_ (xvii) Indebtedness of Borrower (other than MKE
_ Subordinated Debt) which is subordinated to the
_ Obligations, provided that (A) the payment terms,
_ interest rate, subordination provisions and other terms
_ of such Indebtedness are reasonably acceptable to the
_ Required Banks; (B) the Net Proceeds of such
_ Indebtedness are applied to prepay the Term Loans as
_ required by SUBPARAGRAPH 2.05(C); and (C) the aggregate
_ amount of all Subordinated Debt of Borrower (including
_ MKE Subordinated Debt) does not exceed $300,000,000;
_ and
_
_ (xviii) Other Indebtedness of Borrower and its
_ Subsidiaries, provided that the aggregate principal
_ amount of all such Indebtedness does not exceed
_ $40,000,000 at any time;
_
_ (hh) SUBPARAGRAPH 5.02(C) is amended by (i) deleting
_ the word "and" at the end of CLAUSE (VIII) thereof; (ii)
_ changing the designation of CLAUSE (IX) to "(x)"; and (iii)
_ adding thereto, immediately after CLAUSE (VIII), a new
_ CLAUSE (IX) to read in its entirety as follows:
_
_ (ix) Sale by Borrower of the property covered by
_ the Borrower Mortgage in a sale and leaseback
_ transaction; and
_
_ (ii) SUBPARAGRAPH 5.02(E) is amended by changing the
_ amount "$50,000,000" in the one place it appears in CLAUSE
_ (X)(A) thereof to "$65,000,000".
_
_ (jj) SUBPARAGRAPH 5.02(F) is amended by deleting the
_ word "and" at the end of CLAUSE (I) thereof.
_
_ (kk) SUBPARAGRAPH 5.02(G) is amended to read in its
_ entirety as follows:
_
_ (g) CAPITAL EXPENDITURES. Borrower and its
_ Subsidiaries shall not pay or incur (without
_ duplication) in any of the periods set forth below
_ Capital Expenditures in an aggregate amount which
_ exceeds the amount set forth opposite such period below
_ (plus, during the first sixty (60) days of any such
_ period, any portion of such permitted amounts of
_ Capital Expenditures not paid or incurred during the
_ immediately preceding period):
_
_ Closing Date -
_ March 31, 1995 $100,000,000;
_ April 1, 1995 -
_ March 31, 1996 $225,000,000;
_ April 1, 1996 -
_ March 31, 1997 $250,000,000;
_ April 1, 1997 -
_ March 31, 1998 $250,000,000;
_ April 1, 1998 -
_ Revolving Loan Maturity Date $125,000,000.
_
_ (ll) SUBPARAGRAPH 5.02(I) is amended to read in its
_ entirety as follows:
_
_ (i) CERTAIN INDEBTEDNESS PAYMENTS, ETC. Neither
_ Borrower nor any of its Subsidiaries shall pay, prepay,
_ redeem, purchase, defease or otherwise satisfy in any
_ manner prior to the scheduled payment thereof any
_ Subordinated Debt; amend, modify or otherwise change
_ the terms of any document, instrument or agreement
_ evidencing Subordinated Debt so as to increase its
_ obligations thereunder or accelerate the scheduled
_ payment thereof; or amend, modify or otherwise change
_ any of the subordination or other provisions of any
_ document, instrument or agreement evidencing
_ Subordinated Debt in a manner which adversely affects
_ the material rights of the Agents and Banks; except as
_ follows:
_
_ (i) Borrower shall prepay the DEC Note as
_ required under SUBPARAGRAPH 5.01(H);
_
_ (ii) Borrower may redeem the Convertible
_ Subordinated Debentures in part in an aggregate
_ amount not exceeding $6,647,250, provided that no
_ Default or Event of Default has occurred and is
_ continuing or would result from such redemption;
_ and
_
_ (iii) Borrower may redeem the Convertible
_ Subordinated Debentures in whole provided that:
_
_ (A) (1) No Default or Event of Default has
_ occurred and is continuing or would result
_ from such redemption; (2) such redemption is
_ made pursuant to a written agreement with an
_ underwriter of recognized standing, whereby
_ the underwriter agrees (x) to purchase all of
_ the Convertible Subordinated Debentures from
_ Borrower on the date of redemption for the
_ aggregate redemption price paid or to be paid
_ by Borrower for such debentures, (y) to
_ convert all of the Convertible Subordinated
_ Debentures so purchased to stock on the date
_ of redemption pursuant to the terms of such
_ debentures and (z) to market such stock in
_ the secondary market; and (3) the net effect
_ of such redemption on Borrower is otherwise
_ the same as a conversion of all of the
_ Convertible Subordinated Debentures by the
_ holders thereof pursuant to the terms of such
_ debentures with no cash payment by Borrower;
_ or
_
_ (B) Such redemption is otherwise approved by
_ Required Banks.
_
_ (mm) SUBPARAGRAPH 5.02(M) is amended by changing CLAUSE
_ (I) thereof to read in its entirety as follows:
_
_ (i) Borrower shall not permit its cumulative
_ Fixed Charge Coverage Ratio for each period set forth
_ below to be less than the ratio set forth opposite such
_ period below:
_
_ October 1, 1994 -
_ December 31, 1994 1.50;
_ October 1, 1994 -
_ March 31, 1995 1.50;
_ October 1, 1994 -
_ June 30, 1995 2.00;
_ October 1, 1994 -
_ September 30, 1995 2.50;
_ January 1, 1995 -
_ December 31, 1995 2.50;
_ April 1, 1995 -
_ March 31, 1996 2.50;
_ Each consecutive four-
_ quarter period ending
_ on the last day of each
_ quarter thereafter 3.00.
_
_ (nn) SUBPARAGRAPH 5.02(M) is further amended by
_ changing CLAUSE (III)(C) thereof to read in its entirety as
_ follows:
_
_ (C) One hundred percent (100%) of the Net
_ Proceeds of all Equity Securities issued by Borrower
_ and its Subsidiaries (excluding any issuance where the
_ total proceeds are less than $10,000,000) during the
_ period commencing on the base date and ending on the
_ determination date; and
_
_ (oo) SUBPARAGRAPH 5.02(M) is further amended by
_ changing CLAUSE (IV) thereof to read in its entirety as
_ follows:
_
_ (iv) Borrower shall not permit its Leverage Ratio
_ during any period set forth below to be more than the
_ ratio set forth opposite such period below:
_
_ From the Closing Date to
_ March 31, 1996 1.35;
_
_ Thereafter 1.10.
_
_ (pp) SUBPARAGRAPH 5.02(M) is further amended by
_ changing CLAUSE (VI) thereof to read in its entirety as
_ follows:
_
_ (vi) Borrower shall not permit its Quick Ratio to
_ be less than 0.85 at any time.
_
_ (qq) SUBPARAGRAPH 6.01(A) is amended to read in its
_ entirety as follows:
_
_ (a) Borrower (i) shall fail to pay when due any
_ principal or interest on the Loans or (ii) shall fail
_ to pay when due any other payment required under the
_ terms of this Agreement or any of the other Credit
_ Documents and such failure shall continue for two (2)
_ Business Days after notice thereof has been given to
_ Borrower by any Agent; or
_
_ (rr) SUBPARAGRAPH 6.01(E) is amended to read in its
_ entirety as follows:
_
_ (e) (i) Borrower or any of Borrower's
_ Subsidiaries (A) shall fail to make a payment or
_ payments in an aggregate amount of $1,000,000 or more
_ when due under the terms of any bond, debenture, note
_ or other evidence of indebtedness to be paid by such
_ Person (excluding this Agreement and the other Credit
_ Documents or any intercompany Indebtedness between
_ Borrower and any of its Subsidiaries, 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 (B) shall fail to make any other
_ payment or payments when due under or otherwise 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 $5,000,000
_ or more to become due prior to its stated date of
_ maturity; or (ii) the beneficiaries of any letters of
_ credit issued under the Sumitomo LC Agreement shall
_ make a drawing or drawings under such letters of
_ credit, Borrower or any of its Subsidiaries shall
_ provide cash collateral or any other security for
_ Borrower's obligations under the Sumitomo LC Agreement,
_ any of the Sumitomo XX Xxxxx or any agent therefor
_ shall demand any such cash collateral or other security
_ or any event of default shall occur under the Sumitomo
_ LC Agreement; or
_
_ (ss) PARAGRAPH 6.02 is amended to read in its entirety
_ as follows:
_
_ 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 Commitments and the obligations of
_ the Banks to make Loans and/or (b) declare all
_ outstanding Obligations payable by Borrower 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 Commitments and
_ the obligations of the Banks to make 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 and
_ each Bank of such action.
_
_ (tt) PARAGRAPH 8.01 is amended by (i) changing the
_ reference to "Borrower, Administrative Agent or LC Paying
_ Agent" on the fifth and sixth lines thereof to "Borrower or
_ Administrative Agent"; (ii) deleting from the proviso at the
_ end of the second sentence thereof the words "or LC Paying
_ Agent"; (iii) deleting the address and telephone and
_ facsimile numbers for the "LC Paying Agent;" and (iv)
_ changing the first sentence after the address of Borrower to
_ read in its entirety as follows:
_
_ Each Notice of Borrowing, Notice of Loan Conversion and
_ Notice of Interest Period Selection shall be given by
_ Borrower to Administrative Agent to the office of such
_ Person located at the address referred to above during
_ such Person's normal business hours; PROVIDED, HOWEVER,
_ that any such notice received by any such Person after
_ 1:00 P.M. on any Business Day shall be deemed received by
_ such Person on the next Business Day.
_
_ (uu) PARAGRAPH 8.02 is amended by changing CLAUSES (B),
_ (C) AND (D) of the first sentence thereof to read in their
_ entirety as follows:
_
_ (b) all reasonable Attorney Costs and other reasonable
_ fees and expenses payable to third parties incurred by
_ Agents in connection with the preparation, negotiation,
_ execution, delivery and syndication of this Agreement
_ and the other Credit Documents, and the preparation,
_ negotiation, execution and delivery of amendments and
_ waivers hereunder and thereunder; (c) all reasonable
_ Attorney Costs and other reasonable fees and expenses
_ payable to third parties incurred by Agents in
_ connection with the exercise of their rights or duties
_ under this Agreement and the other Credit Documents;
_ and (d) all reasonable Attorney Costs and other
_ reasonable fees and expenses payable to third parties
_ incurred by any Agent or any Bank in the enforcement or
_ attempted enforcement of any of the Obligations or in
_ preserving any of Agents' or the Banks' rights and
_ remedies (including 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)
_
_ (vv) PARAGRAPH 8.03 is amended by changing CLAUSE (A)
_ of the first sentence thereof to read in its entirety as
_ follows:
_
_ (a) any use by Borrower of any proceeds of the Loans,
_
_ (ww) SUBPARAGRAPH 8.04 is amended to read in its
_ entirety as follows:
_
_ 8.04. WAIVERS; AMENDMENTS. Any term,
_ covenant, agreement or condition of this 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) amends this PARAGRAPH 8.04, (ii) releases any
_ substantial part of the Collateral (other than
_ sales or dispositions of assets permitted under
_ SUBPARAGRAPH 5.02(C)) or (iii) amends the
_ definition of Required Banks must be in writing
_ and signed or approved in writing by all Banks;
_
_ (b) 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 the
_ Revolving Loans or any fees or other amounts
_ payable for the account of the Revolving Loan
_ Banks hereunder, or (iv) postpones any date fixed
_ for any payment of the principal of or interest on
_ the Revolving Loans or any fees or other amounts
_ payable for the account of the Revolving Loan
_ Banks hereunder must be in writing and signed or
_ approved in writing by all Revolving Loan Banks;
_
_ (c) Any amendment, waiver or consent which
_ (i) increases the Total Term Loan Commitment,
_ (ii) extends the Term Loan Maturity Date,
_ (iii) reduces the principal of or interest on the
_ Term Loans or any fees or other amounts payable
_ for the account of the Term Loan Banks hereunder,
_ or (iv) postpones any date fixed for any payment
_ of the principal of or interest on the Term Loans
_ or any fees or other amounts payable for the
_ account of the Term Loan Banks hereunder must be
_ in writing and signed or approved in writing by
_ all Term Loan Banks;
_
_ (d) Any amendment, waiver or consent which
_ increases or decreases the Revolving Loan
_ Proportionate Share or Term Loan Proportionate
_ Share of any Bank must be in writing and signed by
_ such Bank; and
_
_ (e) Any amendment, waiver or consent which
_ affects the rights or obligations 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.
_
_ (xx) SUBPARAGRAPH 8.05(B) is amended by changing the
_ reference "CLAUSE (I), (II), (III) OR (IV) OF SUBPARAGRAPH
_ 8.04(A)" where it appears once in the proviso to the second
_ sentence thereof to "CLAUSE (I), (II), (III) OR (IV) OF
_ SUBPARAGRAPH 8.04(B) OR SUBPARAGRAPH 8.04(C), as
_ appropriate".
_
_ (yy) SUBPARAGRAPH 8.05(C) is amended by (i) changing
_ the phrase "Borrower, Administrative Agent and each Issuing
_ Bank" in the two places it appears in CLAUSE (I) thereof to
_ "Borrower and Administrative Agent" and (ii) changing the
_ portion of such subparagraph which appears after CLAUSE (IV)
_ thereof to read in its entirety as follows:
_
_ 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
_ Proportionate Share and/or Term Loan Proportionate
_ Share as set forth on ATTACHMENT 1 TO SUCH ASSIGNMENT
_ AGREEMENT and shall have the rights, duties and
_ obligations of such a Bank under this Agreement and the
_ other Credit Documents, and (B) the Assignor Bank
_ thereunder shall be a Bank with a Revolving Loan
_ Proportionate Share and/or Term Loan Proportionate
_ Share as set forth on ATTACHMENT 1 TO SUCH ASSIGNMENT
_ AGREEMENT, or, if the Revolving Loan Proportionate
_ Share and Term Loan Proportionate Share of the Assignor
_ Bank have each 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 Agreement which by its terms survives
_ the termination of this 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
_ Proportionate Share and Term Loan Proportionate Share
_ to 0% and the resulting adjustment of Revolving Loan
_ Proportionate Shares and/or Term Loan Proportionate
_ Shares arising from the purchase by each Assignee Bank
_ of all or a portion of the rights and obligations of an
_ Assignor Bank under this Agreement and the other Credit
_ Documents. On or prior to the Assignment Effective
_ Date determined pursuant to each Assignment Agreement,
_ Borrower, at its own expense, shall execute and deliver
_ to Administrative Agent, in exchange for the
_ surrendered Revolving Loan Note and/or Term Loan Note
_ of the Assignor Bank thereunder, a new Revolving Loan
_ Note and/or Term 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 each new
_ Term Loan Note to be in the original principal amount
_ of the Term Loan then held by such Assignee Bank) and,
_ if the Assignor Bank is continuing as a Bank hereunder,
_ a new Revolving Loan Note and/or Term 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 and the new Term Loan Note to
_ be in the original principal amount of the Term Loan
_ retained by it). Each such new Note shall be dated the
_ Closing Date and otherwise be in the form of the Note
_ replaced thereby (provided that Borrower shall not be
_ obligated to pay any additional interest to any
_ Assignee Bank in respect to any principal payments made
_ prior to the Effective Date of the Assignment to such
_ Assignee Bank). The 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 either 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 Agreement without
_ deduction or withholding of any United States federal
_ income taxes.
_
_ (zz) SUBPARAGRAPH 8.05(D) is amended by changing the
_ phrase "Proportionate Share" where it appears once in the
_ first sentence thereof to "Revolving Loan Proportionate
_ Share and Term Loan Proportionate Share".
_
_ (aaa) SUBPARAGRAPH 8.05(E) is amended by changing the
_ phrase "Proportionate Shares" where it appears once in the
_ last sentence thereof to "Revolving Loan Proportionate
_ Shares and Term Loan Proportionate Shares".
_
_ (bbb) SCHEDULE I is amended to read in its entirety as
_ set forth in ATTACHMENT 1 hereto.
_
_ (ccc) SCHEDULE II is deleted in its entirety.
_
_ (ddd) SCHEDULE 2.01A(K) is deleted in its entirety.
_
_ (eee) EXHIBIT P is amended by changing ATTACHMENT 1
_ thereto to read in its entirety as set forth in ATTACHMENT 2
_ hereto.
_
_ (fff) EXHIBIT S is amended by (i) changing the term
_ "Proportionate Share" where it appears once in PARAGRAPH 2
_ thereof, twice in PARAGRAPH 4 thereof, once in PARAGRAPH 5
_ thereof and twice in PARAGRAPH 10 thereof to "Revolving Loan
_ Proportionate Share and Term Loan Proportionate Share"; (ii)
_ changing the phrase "set forth under the caption
_ 'Proportionate Share' opposite such Assignee Bank's name on
_ ATTACHMENT 1 hereto" at the end of PARAGRAPH 2 thereof to
_ "set forth under the captions 'Revolving Loan Proportionate
_ Share' and 'Term Loan Proportionate Share,' respectively,
_ opposite such Assignee Bank's name on ATTACHMENT 1 hereto";
_ and (iii) changing ATTACHMENT 1 thereto to read in its
_ entirety as set forth in ATTACHMENT 3 hereto.
_
_ (ggg) EXHIBIT U is amended by (i) changing the amount
_ "US$50,000,000" where it appears twice therein to
_ "US$[_____________]"; (ii) changing the word and year
_ "[Date], 1994" where it appears once therein to "[Date]";
_ and (iii) changing the words "Fifty Million U.S. Dollars"
_ where it appears once therein to "[_____________] U.S.
_ Dollars".
_
_ (hhh) EXHIBIT V, EXHIBIT W and EXHIBIT X are deleted in
_ their entirety.
_
_
_ 3. REPRESENTATIONS AND WARRANTIES. Borrower hereby
_represents and warrants to the Existing Banks and the New Bank
_(collectively, the "BANKS") and the Agents 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 also 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 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 September 29, 1995 (such date, if
_the conditions set forth in this paragraph are satisfied, to be
_referred to herein as 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 and their
_respective counsel:
_
_ (a) This Amendment duly executed by Borrower, each
_ Bank and Agent;
_
_ (b) A new Revolving Loan Note for each Bank which will
_ have a Revolving Loan Commitment after the Effective Date in
_ the amount of such Revolving Loan Commitment, duly executed
_ by Borrower;
_
_ (c) A letter in the form of EXHIBIT A hereto, dated
_ the Effective Date and duly executed by each Subsidiary
_ which has executed a Subsidiary Security Agreement;
_
_ (d) A Certificate of the Secretary of Borrower, dated
_ the Effective Date, certifying that the Certificate of
_ Incorporation, Bylaws and Board resolutions of Borrower, in
_ the forms delivered to Agent on the Effective Date, are in
_ full force and effect and have not been amended,
_ supplemented, revoked or repealed since such date;
_
_ (e) A favorable written opinion of Cooley, Godward,
_ Xxxxxx, Xxxxxxxxx & Xxxxx, counsel to Borrower, dated the
_ Effective Date, addressed to the Administrative Agent for
_ the benefit of the Agents and the Banks, covering such legal
_ matters as Agents may reasonably request and otherwise in
_ form and substance satisfactory to the Agents;
_
_ (f) An amendment to the Borrower Mortgage to reflect
_ the increase in the "Obligations" secured thereby from
_ $350,000,000 to $450,000,000 duly executed by Borrower and
_ Administrative Agent and appropriately notarized for
_ recording in Massachusetts;
_
_ (g) A date-down endorsement (or similar endorsement)
_ to the title insurance policy issued by Xxxxxxx Title
_ Guaranty Company and delivered to Administrative Agent as
_ ITEM E(10) OF SCHEDULE 3.10 TO THE CREDIT AGREEMENT, which
_ endorsement insures that no encumbrances or other Liens have
_ been recorded against the real property covered by the
_ Borrower Mortgage since the date on which the Borrower
_ Mortgage was recorded;
_
_ (h) A copy of the Credit Agreement dated as of
_ September 22, 1995 among Borrower, The Sumitomo Bank,
_ Limited and certain other banks, duly executed by each of
_ the parties thereto;
_
_ (i) An amendment fee for each Bank which currently is
_ a party to the Credit Agreement, in an amount equal to
_ 0.0625% of the sum of (i) such Bank's current Revolving Loan
_ Commitment plus (ii) the current amount of such Bank's Term
_ Loan;
_
_ (j) A participation fee (i) for each Existing Bank
_ which increases its Revolving Loan Commitment pursuant to
_ this Amendment, in an amount equal to 0.25% of the remainder
_ of (A) such increase minus (B) the principal payment on such
_ Bank's Term Loan due on October 2, 1995; and (ii) for the
_ New Bank in an amount equal to 0.25% of the New Bank's
_ Revolving Loan Commitment;
_
_ (k) All LC Issuance Fees, LC Usage Fees and all other
_ fees and amounts, if any, payable to Administrative Agent,
_ the Banks, the Issuing Banks and the LC Paying Agent and
_ accrued through and unpaid on the Effective Date pursuant to
_ the Issuing Banks' Fee Letter, the LC Applications or any
_ other existing Credit Document; and
_
_ (l) Such other evidence as any Agent, LC Paying Agent
_ or 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 Amendment and the other Credit Documents.
_
_On the Effective Date, Administrative Agent shall calculate the
_Revolving Loan Proportionate Share of each Bank which then has a
_Revolving Loan Commitment (a "REVOLVER BANK") in each Revolving
_Loan Borrowing which is then outstanding. Based upon such
_calculation, the Revolver Banks shall purchase from and sell to
_each other on the Effective Date such participations in the
_outstanding Revolving Loans as Administrative Agent determines
_are necessary to cause each Revolver Bank to hold a Revolving
_Loan in each Revolving Loan Borrowing in a principal amount equal
_to such Revolver Bank's Revolving Loan Proportionate Share of
_such Revolving Loan Borrowing.
_
_
_ 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 any Bank or Agent, nor
_constitute a waiver of any provision of the Credit Agreement or
_any other Credit Document. Without limiting the generality of
_the foregoing, Borrower expressly agrees that the execution,
_delivery and effectiveness of this Amendment shall not terminate
_any obligation of Borrower to any Issuing Bank or any other Bank
_or to LC Paying Agent or any other Agent in connection with the
_Existing Letters of Credit, including, without limitation, any
_obligation of Borrower to pay (a) any accrued and unpaid fees
_payable under the Issuing Bank's Fee Letter, the LC Applications,
_the Letters of Credit or the LC Paying Agent Agreement; (b) any
_increased costs, indemnity amounts, fees and disbursements of
_counsel (including the allocated cost, and disbursements, of
_internal counsel) or other losses, costs, charges, expenses or
_disbursements which may be incurred or suffered by the LC Paying
_Agent or any of the Issuing Banks which are payable under the
_Issuing Bank's Fee Letter, the LC Applications, the Letters of
_Credit or the LC Paying Agent Agreement on account of actions,
_omissions, events or conditions occurring prior to the Effective
_Date or in connection with the enforcement or defense of the
_rights and claims described in CLAUSE (A) above and this CLAUSE
_(B) after the Effective Date; and (c) any accrued and unpaid
_interest on amounts payable to the LC Paying Agent or an Issuing
_Bank described in CLAUSES (A) AND (B) above.
_
_
_ 6. EXPENSES. Pursuant to PARAGRAPH 8.02 OF THE CREDIT
_AGREEMENT, Borrower shall pay to Agents, the Issuing Banks and LC
_Paying Agent all reasonable Attorney Costs and other reasonable
_fees and expenses payable to third parties incurred by Agents,
_the Issuing Banks and LC Paying Agent in connection with the
_preparation, negotiation, execution and delivery of this
_Amendment and the additional Credit Documents.
_
_
_ 7. 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.
_
_ [The next page is the first signature page.]
_ IN WITNESS WHEREOF, Borrower, the Banks and Agents have
_caused this Amendment to be executed as of the day and year first
_above written.
_
_
_BORROWER: QUANTUM CORPORATION
_
_
_ By: G. Xxxxxx XxXxxxxx
_ Name: G. Xxxxxx XxXxxxxx
_ Title: Director of Finance
_ and Treasurer
_
_
_
_
_MANAGING AGENTS: ABN AMRO BANK N.V., San Francisco
_ International Branch,
_ As a Managing Agent
_
_
_ By: Xxxxx X. Xxx
_ Name: Xxxxx X. Xxx
_ Title: Vice President
_
_
_ By: Xxxxxx X. Xxxxxxxxx
_ Name: Xxxxxx X. Xxxxxxxxx
_ Title: Group Vice President
_
_
_
_ BARCLAYS BANK PLC,
_ As a Managing Agent
_
_
_ By: Xxxxx X. Xxx
_ Name: Xxxxx X. Xxx
_ Title: Associate Director
_
_
_
_ CIBC INC.,
_ As a Managing Agent
_
_
_ By: Xxxxxxx Xxxxx
_ Name: Xxxxxxx Xxxxx
_ Title: Vice President
_ADMINISTRATIVE AGENT: CANADIAN IMPERIAL BANK OF COMMERCE,
_ As Administrative Agent
_
_
_ By: Xxxxxxx Xxxxx
_ Name: Xxxxxxx Xxxxx
_ Title: Vice President
_
_
_
_LC PAYING AGENT: BANK OF AMERICA NATIONAL TRUST &
_ SAVINGS ASSOCIATION,
_ As LC Paying Agent
_
_
_ By: Xxxxx X. Xxxxx
_ Name: Xxxxx X. Xxxxx
_ Title: Vice President
_
_
_
_EXISTING BANKS: ABN AMRO BANK N.V., San Francisco
_ International Branch,
_ As a Bank
_
_
_ By: Xxxxx X. Xxx
_ Name: Xxxxx X. Xxx
_ Title: Vice President
_
_
_ By: Xxxxxx X. Xxxxxxxxx
_ Name: Xxxxxx X. Xxxxxxxxx
_ Title: Group Vice President
_
_
_
_ BARCLAYS BANK PLC,
_ As a Bank
_
_
_ By: Xxxxx X. Xxx
_ Name: Xxxxx X. Xxx
_ Title: Associate Director
_
_
_ By: Xxxxx X. Xxxxxx
_ Name: Xxxxx X. Xxxxxx
_ Title: Associate Director
_
_
_
_ CIBC INC.,
_ As a Bank
_
_
_ By: Xxxxxxx Xxxxx
_ Name: Xxxxxxx Xxxxx
_ Title: Vice President
_
_
_ BANK OF AMERICA NATIONAL TRUST &
_ SAVINGS ASSOCIATION,
_ As a co-agent and as a Bank
_
_
_ By: Xxxxx XxXxxxx
_ Name: Xxxxx XxXxxxx
_ Title: Vice President
_
_
_ CHEMICAL BANK,
_ As a co-agent and as a Bank
_
_
_ By: Xxxx X. Xxxxx III
_ Name: Xxxx X. Xxxxx III
_ Title: Managing Director
_
_
_
_ THE FIRST NATIONAL BANK OF BOSTON,
_ As a co-agent and as a Bank
_
_
_
_ By: Xxxxxxx X. Xxxxxx
_ Name: Xxxxxxx X. Xxxxxx
_ Title: Vice President
_
_
_
_ THE INDUSTRIAL BANK OF JAPAN,
_ LIMITED,
_ As a co-agent and as a Bank
_
_
_ By: Xxxxxx Xxxxxx
_ Name: Xxxxxx Xxxxxx
_ Title: Joint General Manager
_
_ THE BANK OF NOVA SCOTIA,
_ As a Bank
_
_
_ By: Xxxxx Xxxxxxx
_ Name: Xxxxx Xxxxxxx
_ Title: Sr. Relationship Mgr.
_
_
_
_ FLEET BANK OF MASSACHUSETTS, N.A.,
_ As a Bank
_
_
_ By: Xxxxxx X. Xxxxxx
_ Name: Xxxxxx X. Xxxxxx
_ Title: Vice President
_
_
_
_ THE LONG-TERM CREDIT BANK OF JAPAN,
_ LTD.,
_ As a Bank
_
_
_ By: Xxxxxxxx Xxxxxxx
_ Name: Xxxxxxxx Xxxxxxx
_ Title: Deputy General Mgr.
_
_
_
_ THE NIPPON CREDIT BANK, LTD.,
_ As a Bank
_
_
_ By: Xxxxxxx X. XxXxxxx
_ Name: Xxxxxxx X. XxXxxxx
_ Title: V.P. and Sr. Manager
_
_
_ By: Xxxxxx Xxxxxxx
_ Name: Xxxxxx Xxxxxxx
_ Title: Vice President and Mgr.
_
_
_
_ SANWA BANK CALIFORNIA,
_ As a Bank
_
_
_ By: Xxxxxx X. Xxxxx
_ Name: Xxxxxx X. Xxxxx
_ Title: Vice President
_
_
_
_ SHAWMUT BANK, N.A.,
_ As a Bank
_
_
_ By: Xxxxx X. Xxxxxx, III
_ Name: Xxxxx X. Xxxxxx III
_ Title: Director
_
_
_
_ THE SUMITOMO BANK, LIMITED,
_ As a Bank
_
_
_ By: Xxxx Xxxxxx
_ Name: Xxxx Xxxxxx
_ Title: General Manager
_
_
_
_ By: Xxxxxx Xxxxx, Xx.
_ Name: Xxxxxx Xxxxx, Xx.
_ Title: Vice President
_
_
_
_ UNION BANK,
_ As a Bank
_
_
_ By: X. Xxxxxxx Xxxx
_ Name: X. Xxxxxxx Xxxx
_ Title: VP and District Mgr.
_
_
_
_NEW BANK: THE FUJI BANK, LIMITED,
_ As a Bank
_
_
_ By: Xxxxx Xxxxx
_ Name: Xxxxx Xxxxx
_ Title: General Manager
_
_
_
