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EXHIBIT 10.49
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U.S. $30,000,000
MULTICURRENCY REVOLVING CREDIT AGREEMENT
Dated as of June 27, 1995
Among
INMAC CORP.,
INMAC B.V.,
INMAC GMBH,
INMAC (U.K.) LTD.,
INMAC HOLDINGS LIMITED,
INMAC SA
and
INMAC AB
each a Borrower
and
ABN AMRO BANK N.V.
as Agent and as Issuing Bank
AND
BANKS
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TABLE OF CONTENTS
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
1.01 Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1.04. Interpretation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE II
AMOUNTS AND TERMS OF ADVANCES
2.01. The Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.02. The Swing-Line Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
2.03. Making the Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.04. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
2.05. Reduction of the Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.06. Repayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.07. Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
2.08. Additional Interest on Eurocurrency Rate Advances . . . . . . . . . . . . . . . . . . . . 22
2.09. Interest Rate Determination and Protection. . . . . . . . . . . . . . . . . . . . . . . . 22
2.10. Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2.11. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.12. Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
2.13. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
2.14. Extension of Revolver Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.15. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2.16. Sharing of Payments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.17. Currency Equivalents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2.18. Evidence of Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
2.19. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE III
AMOUNTS AND TERMS OF LETTERS OF CREDIT
AND PARTICIPATIONS THEREIN
3.01. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
3.02. Issuing the Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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3.03. Reimbursement Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3.04. Participations Purchased by the Banks . . . . . . . . . . . . . . . . . . . . . . . . . . 32
3.05. Letter of Credit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
3.06. Indemnification; Nature of the Issuing Bank's Duties . . . . . . . . . . . . . . . . . . 34
3.07. Increased Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
3.08. Uniform Customs and Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IV
THE GUARANTEE
4.01. The Guarantee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.02. Guaranty Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.03. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
4.04. Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
4.05 Financial Condition of B Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ARTICLE V
CONDITIONS OF LENDING
5.01. Condition Precedent to Initial Advances and Letters of Credit . . . . . . . . . . . . . . 40
5.02. Conditions Precedent to Each Borrowing and Letter of Credit . . . . . . . . . . . . . . . 41
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.01. Corporate Status . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.02. Corporate Power and Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.03. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.04. Financial Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.05. Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
6.06. Not an Investment Company . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.07. Compliance With Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.08. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.09. Full Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE VII
COVENANTS OF THE BORROWER
7.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
7.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.03 Financial Covenants of the A Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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7.04. Financial Covenants of the Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
ARTICLE IX
THE AGENT
9.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.02. Agent's Reliance, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.03. ABN AMRO Bank N.V. and its Affiliates . . . . . . . . . . . . . . . . . . . . . . . . . . 56
9.04. Bank Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
9.06. Successor Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
ARTICLE X
THE OBLIGATIONS OF THE B BORROWERS
10.01. Liability of each B Borrower . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.02. Absolute Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
10.04. Waiver of Subrogation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.05. Financial Condition of B Borrowers . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
10.06. Certain Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
ARTICLE XI
MISCELLANEOUS
11.01. Amendments, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.02. Notices, Etc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
11.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
11.04. Costs, Expenses and Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
11.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
11.06. Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
11.07. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
11.08. Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . 66
11.09. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
11.10. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
11.11. Assignments and Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
11.12. GOVERNING LAW AND JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
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11.13. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
11.14. Confidentiality Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
11.15. WAIVER OF JURY TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
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MULTICURRENCY REVOLVING CREDIT AGREEMENT, dated as of June 27,
1995, among INMAC CORP., a corporation organized under the laws of
Delaware (the "A Borrower"), INMAC B.V.a corporation organized under the
laws of the Netherlands, INMAC GMBH, a corporation organized under the
laws of Germany, INMAC (U.K.) Ltd., a corporation organized under the
laws of England, INMAC HOLDINGS LIMITED, a corporation organized
under the laws of England, INMAC SA, a corporation organized under the
laws of France, and INMAC AB, a corporation organized under the laws of
Sweden, each a directly or indirectly wholly-owned subsidiary of the A Borrower
(each a "B Borrower" and, collectively, the "B Borrowers" and, together with the
A Borrower, each a "Borrower" and, collectively, the "Borrowers"), the banks
(the "Banks") listed on the signature pages hereof, and ABN AMRO BANK
N.V. as the issuing bank hereunder (the "Issuing Bank") and as agent (the
"Agent") for the Banks and the Issuing Bank hereunder.
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01 Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and the plural of the terms
defined):
"A Advance" shall mean an advance by a Bank to the A
Borrower as part of an A Borrowing and refers to a Eurocurrency Rate Advance.
"A Advance Liability" shall mean, as of any date of
determination, the sum of all then existing liabilities of the A Borrower to the
Banks in respect of all A Advances (including A Advances required to be made but
not funded by any Bank.)
"A Borrowing" shall mean a borrowing consisting of
simultaneous A Advances made on the same day by the Banks.
"A Commitment" shall mean, as to any Bank, the amount
set forth opposite such Bank's name on the signature pages hereof under the
caption "A Commitment."
"A Letter of Credit Liability" shall mean, as of any
date of determination, all then existing liabilities of the A Borrower to the
Issuing Bank in respect of the Letters of Credit Issued for its account, whether
such liability is contingent or fixed, and shall, in each case, consist of the
sum of (i) the aggregate amount then available to be drawn under such Letters of
Credit (the determination of such maximum amount to assume compliance with all
conditions for drawing) and (ii) the aggregate amount which has then been paid
by, and not
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been reimbursed by the A Borrower to, the Issuing Bank under such
Letters of Credit; provided, however, that such amount, together
with the B Letter of Credit Liability, shall in no event exceed $5,000,000 (or
the equivalent thereof in one or more Alternative Currencies).
"A Note" shall mean a promissory note of the A Borrower
payable to the order of a Bank evidencing the aggregate indebtedness of the A
Borrower to such Bank resulting from A Advances made by such Bank.
"A Swing-Line Advance" shall mean an advance by the
Agent to the A Borrower pursuant to Section 2.02(a) hereof.
"A Swing-Line Liability" shall mean, as of any date of
determination, the sum of the then existing liabilities of the A Borrower to the
Agent in respect of all A Swing-Line Advances (including A Swing-Line Advances
required to be made but not funded by the Agent).
"Advance" shall mean an A Advance or a B Advance made
in either Dollars or an Alternative Currency.
"Affiliate" shall mean, with respect to any Person, any
other entity that, directly or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such Person.
"Alternative Currency" shall mean any of Deutsche
Marks, French Francs, Dutch Guilders, Swedish Krona, British Pounds or Japanese
Yen; provided, however, that at the time of any Advance or
Swing-Line Advance in such Alternative Currency, such Alternative Currency is
freely transferable and convertible into Dollars.
"Annual Percentage of Earnings Capacity Transferred"
shall mean, for any four consecutive fiscal quarter period, the sum of the
Percentages of Earnings Capacity Transferred attributable to each asset
transferred during such period.
"Annual Percentage of Tangible Assets Transferred"
shall mean, for any four consecutive fiscal quarter period, the sum of the
Percentages of Tangible Assets Transferred attributable to assets transferred
during such period.
"Applicable Lending Office" shall mean, with respect to
each Bank, such Bank's Eurocurrency Lending Office.
"B Advance" shall mean an advance by a Bank to a B Borrower as
part of a B Borrowing and refers to a Eurocurrency Rate Advance.
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"B Advance Liability" shall mean, as of any date of
determination, the aggregate of all then existing liabilities of the B Borrowers
to the Banks in respect of all B Advances (including B Advances required to be
made but not funded by any Bank).
"B Borrowing" shall mean a borrowing consisting of
simultaneous B Advances made on the same day by the Banks.
"B Commitment" shall mean, as to any Bank, the amount
set forth opposite such Bank's name on the signature pages hereof under the
caption "B Commitment".
"B Letter of Credit Liability" shall mean, as of any
date of determination, all then existing liabilities of the B Borrowers to the
Issuing Bank in respect of the Letters of Credit Issued for their account,
whether such liability is contingent or fixed, and shall, in each case, consist
of the sum of (i) the aggregate amount then available to be drawn under such
Letters of Credit (the determination of such maximum amount to assume compliance
with all conditions for drawing) and (ii) the aggregate amount which has then
been paid by, and not been reimbursed by the B Borrowers to, the Issuing Bank
under such Letters of Credit; provided, however, that such
amount, together with the A Letter of Credit Liability shall in no event exceed
$5,000,000 (or the equivalent thereof in one or more Alternative Currencies).
"B Note" shall mean a promissory note of a B Borrower
payable to the order of a Bank evidencing the aggregate indebtedness of the B
Borrower to such Bank resulting from B Advances made by such Bank.
"B Swing-Line Advance" shall mean an advance by the
Agent to a B Borrower pursuant to Section 2.02(b) hereof.
"B Swing-Line Liability" shall mean, as of any date of
determination, the aggregate of the then existing liabilities of all B Borrowers
to the Agent in respect of all B Swing-Line Advances (including B Swing-Line
Advances required to be made but not funded by the Agent).
"Bankruptcy Code" shall mean the Bankruptcy Reform Act, Title
11 of the United States Code, as amended from time to time.
"Banks" shall mean those Banks listed on the signature
pages hereof and their successors and assigns.
"Borrowing" shall mean an A Borrowing or a B Borrowing.
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"Business Day" shall mean a day of the year on which
commercial banks are not required or authorized by law to close in New York and
California, and if the applicable Business Day relates to any Eurocurrency Rate
Advances, on which dealing are carried on in the London interbank market and
commercial banks are open for business in London and Paris and in the country of
issue of the Currency of such Eurocurrency Rate Advance.
"Capital Expenditures" shall mean all gross amounts
paid for fixed assets, or improvements, replacements, substitutions or additions
thereto, in each case which have a useful life of more than one year.
"Capitalized Lease Obligations" shall mean, with
respect to any Person, any rental obligation which, under GAAP, would be
required to be capitalized on the books of such Person, taken at the amount
thereof accounted for as indebtedness (net of interest expense) in accordance
with such principles.
"Closing Date" shall mean the date on which each of the
conditions set forth in Article V hereof shall have either been satisfied or
waived and the initial Borrowing or initial Swing-Line Advance shall have been
made or the initial Letter of Credit shall have been Issued.
"Code" shall mean the United States Internal Revenue
Code of 1986, as amended from time to time.
"Consolidated", "Consolidating" and any
derivative thereof each shall mean, with reference to the accounts or financial
reports of any Person, the consolidated accounts or financial reports of such
Person and each of its Subsidiaries.
"Cumulative Percentage of Earnings Capacity
Transferred" shall mean, at the time of determination thereof, the sum of
the Percentages of Earnings Capacity Transferred attributable to each asset
transferred from and after the date hereof.
"Cumulative Percentage of Tangible Assets Transferred"
shall mean, at the time of determination thereof, the sum of the Percentages of
Tangible Assets Transferred attributable to each asset transferred from and
after the date hereof.
"Currency" shall mean Dollars or an Alternative Currency.
"Current Ratio" shall mean, at any time of computation,
the ratio of current assets of any Person to total current liabilities of such
Person, determined in accordance with GAAP.
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"Debt" shall mean, with respect to any Person at a
particular date, without duplication, (a) any obligation for borrowed money,
including any overdrafts and any obligation evidenced by notes payable,
commercial paper, bonds, debentures or similar written instruments; conditional
sales contracts; and drafts accepted representing extensions of credit (other
than for trade and tax payables, deferred taxes and operating leases); (b) all
obligations, contingent or otherwise, of such Person under acceptances, letters
of credit or similar facilities; (c) Capitalized Lease Obligations; (d)
obligations of another Person secured by a Lien on, or payable out of the
proceeds or production from, such Person's property whether or not such
obligation is expressly assumed by such Person; (e) Debt of any partnership or
joint venture of which such Person is a general partner or joint venturer that
is not expressly non-recourse with respect to such Person; (f) guarantees of any
of the foregoing and (g) any modification, extension or renewal of any of the
foregoing.
"Debt Ratio" shall mean, with respect to any Person, its ratio
of Senior Debt to Senior Debt plus Tangible Net Worth.
"Default" shall mean any of the events specified in
Article VIII hereof, whether or not any requirement for the giving of notice,
the lapse of time, or both, or any other condition has been satisfied.
"Dollars" and the sign "$" shall mean the lawful
currency of the United States of America.
"EBITDA" shall mean, with respect to any Person for any
period, its earnings (or losses, as the case may be) from continuing operations,
before interest expense, depreciation and amortization, as such terms are
defined in accordance with GAAP, and before federal and other income taxes, net
of extraordinary gains and losses.
"Eligible Assignee" shall mean (i) a commercial bank
organized under the laws of the United States, or any State thereof, having
total assets of not less than $10,000,000,000 (or the equivalent thereof in any
Alternative Currency) and (ii) a commercial bank organized under the laws of any
other country which is a member of the Organization for Economic Cooperation and
Development (the "OECD") or a political subdivision of such country
having total assets of not less than $10,000,000,000 (or the equivalent thereof
in any Alternative Currency), provided that such bank is acting through a branch
or agency located in the country in which it is organized or another country
which is also a member of the OECD.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
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"Eurocurrency" shall mean Dollars or any Alternative
Currency accruing interest at the Eurocurrency Rate.
"Eurocurrency Lending Office" shall mean, with respect
to any Bank, the office of such Bank specified as its "Eurocurrency Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Bank, or such other office of such Bank
as such Bank may from time to time specify to the Borrowers, the Agent and the
Issuing Bank.
"Eurocurrency Liabilities" shall have the meaning
assigned to that term in Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Eurocurrency Rate" shall mean, for any Interest Period
for each Eurocurrency Rate Advance comprising part of the same Borrowing other
than in Swedich Krona, an interest rate per annum (as determined by the
principal office of the Reference Bank in London, England) displayed at 11:00 AM
(London time) two Business Days before the first day of such Interest Period on
Telerate page 3750 (or such other page as may replace such page on the Telerate
Service for the purpose of displaying interest rates at which deposits in the
respective currency are offered by prime banks in the London interbank market)
for deposits in the respective currency in an amount substantially equal to the
Reference Bank's Advance comprising part of such Borrowing and for a period
equal to such Interest Period. The "Eurocurrency Rate" for any Interest Period
for any Borrowing denominated in Swedish Krona shall mean the rate of interest
per annum determined by the Reference Bank to be the rate at which the Reference
Bank is offered deposit of Swedish Krona in Amsterdam, the Netherlands, at 11:00
a.m., Amsterdam time, two Business Days prior to the beginning of such Interest
Period, for delivery on the first day of such Interest Period and for a period
of time equal to such Interest Period, in an amount substantially equal to the
Reference Bank's Advance comprising part of such Borrowing. To the extent
applicable, the Eurocurrency Rate for the Interest Period for each such
Eurocurrency Rate Advance comprising part of the same Borrowing shall be
determined by the Agent on the basis of the applicable rate furnished to and
received by the Agent from the Reference Bank two Business Days before the first
day of such Interest Period, subject, however, to the provisions
of Section 2.07 hereof.
"Eurocurrency Rate Advance" shall mean an advance which
bears interest at a rate per annum determined on the basis of the Eurocurrency
Rate, as proved in Section 2.07 (a) or (b) hereof.
"Eurocurrency Rate Reserve Percentage" of any Bank, for
the Interest Period for any Eurocurrency Rate Advance, shall mean the reserve
percentage applicable during such Interest Period (or if more than one such
percentage shall be so applicable, the daily average
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of such percentages for those days in such Interest Period during which any such
percentage shall be so applicable) under regulations issued from time to time by
the Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without limitation, any
emergency, supplemental or other marginal reserve requirement) for such Bank
with respect to liabilities or assets consisting of or including Eurocurrency
Liabilities having a term equal to such Interest Period.
"Event of Default" shall have that meaning specified in Section
8.01.
"Exempt Subsidiaries" shall mean INMAC, DISC, a
corporation organized under the laws of the State of California, INMAC, S.A. de
C.V., a corporation organized under the laws of Mexico, INMAC S.p.A., a
corporation organized under the laws of Italy and INMAC, Inc., a corporation
organized under the laws of Canada, and those other Subsidiaries of the A
Borrower created after the Closing Date and designated as such by the A
Borrower.
"Federal Funds Rate" shall mean, for any period, a
fluctuating interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Business Day) by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for such day on such transactions received by the Agent from three
Federal funds brokers of recognized standing selected by it.
"Fixed Charge Ratio" shall mean, for any Person, its
ratio of EBITDA to Interest Expense.
"GAAP" shall mean generally accepted accounting
principles applied on a consistent basis, set forth in the Opinions of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and/or in statements of the Financial Accounting Standards Board
and/or in such other statements by such other entity as the Majority Banks and
each Borrower may reasonably approve, which are applicable in the circumstances
and as of the date in question, and the requirement that such principles be
applied on a consistent basis shall mean that the accounting principles observed
in a current period are comparable in all material respects to those applied in
a preceding period except for the adoption within any permissible period of new
accounting standards required by the Financial Accounting Standards Board from
time to time.
"Guarantor" shall mean INMAC Corp.
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"Interest Expense" shall mean, with respect to any
Person, the aggregate amount of interest paid, accrued or scheduled to be paid
or accrued in respect of any Debt and all but the principal component of
payments in respect of conditional sales, equipment trust or other title
retention agreements paid, accrued or scheduled to be paid or accrued by such
Person, in each case determined in accordance with GAAP.
"Interest Period" shall mean, for each Eurocurrency
Rate Advance, the period commencing on the date of such Advance and ending on
the last day of the period selected by the applicable Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last day of
the period selected by such Borrower pursuant to the provisions below. The
duration of each such Interest Period shall be one, two, three or six months;
provided, however, that:
(i) the duration of any Interest Period which commences before
the Revolver Termination Date and otherwise ends after such date shall
end on such date;
(ii) Interest Periods commencing on the same date for Advances
comprising part of the same Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next succeeding
Business Day; such next succeeding Business Day would occur in the
subsequent month, the last day of such Interest Period shall be the
next preceding Business Day; and
(iv) if any Interest Period begins on a day for which there is
no numerically corresponding day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the last
Business Day of such calendar month.
"Issue" shall mean, with respect to any Letter of
Credit, either to issue, or to extend the expiry of, or to renew, or to increase
the amount of, such Letter of Credit, and the term "Issued" or
"Issuance" shall have corresponding meanings.
"Issuing Bank" shall mean ABN AMRO Bank N.V. or any Affiliate
thereof that may from time to time Issue Letters of Credit for the account of
any Borrower.
"Letter of Credit" shall mean a standby or commercial
letter of credit in form satisfactory to the Issuing Bank, which is at any time
Issued by the Issuing Bank pursuant to Article III, in each case as amended,
supplemented or otherwise modified from time to time.
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"Lien" shall mean any assignment, chattel mortgage,
pledge or other security interest or any mortgage, deed of trust or other lien,
or other charge or encumbrance, upon property or rights (including
after-acquired property or rights), or any preferential arrangement with respect
to property or rights (including after-acquired property or rights) which has
the practical effect of constituting a security interest or lien.
"Loan Documents" shall mean this Agreement and the
Notes, in each case as amended, supplemented, restated or otherwise modified
from time to time.
"Long-Term Debt" shall mean, with respect to any
Borrower at a particular date, the sum of (i) all indebtedness, obligations and
other liabilities of such Borrower which would, in conformity with GAAP as in
effect in the United States, be included under long-term debt on a balance sheet
of such Borrower as at such date, plus (ii) such Borrower's obligations under
Guarantees (except those issued on behalf of its subsidiaries).
"Majority Banks" shall mean, at any time, Banks holding
at least 66-2/3% of the then aggregate unpaid principal amount of the Advances
owing to the Banks, or, if no such principal amount is then outstanding, Banks
having at least 66-2/3% of the Total Commitment.
"Margin Stock" shall mean margin stock as defined in
Regulation U of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Moody's" shall mean Xxxxx'x Investors Service, a
corporation organized and existing under the laws of the State of Delaware, its
successors and assigns.
"Multi-employer Plan" shall have the meaning set forth
in section 4001(a) (3) of ERISA.
"Net Income" for any Person shall mean such Person's
earnings (or losses, as the case may be) from continuing operations, net of
federal and other income taxes, as determined in accordance with GAAP, excluding
nonrecurring items which are separately disclosed on the face of such Person's
Consolidated Statement of Operations for the most recently ended fiscal year.
"Net Loss" for any Person shall mean such Person's
losses from continuing operations, net of federal and other income taxes, as
determined in accordance with GAAP, excluding nonrecurring items which are
separately disclosed on the face of such Person's Consolidated Statement of
Operations for the most recently ended fiscal year.
"Notes" shall mean the A Notes and the B Notes in
substantially the form of Exhibit A hereto.
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"Notice of Borrowing" shall have such meaning as is set
forth in Section 2.03(a) hereof.
"Notice of Swing-Line Borrowing" shall have such
meaning as is set forth in Section 2.03(e) hereof.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation or any successor entity or entities performing similar functions.
"Payment Office" shall mean, for Dollars, the principal
office of the Agent in San Francisco, and, for any Alternative Currency, such
office of the Agent as shall be from time to time selected by the Agent and
notified by the Agent to the Borrowers, the Banks and the Issuing Bank.
"Percentage of Earnings Capacity Transferred" shall
mean, with respect to each asset transferred pursuant to clause (vii) of Section
7.02(b), the ratio (expressed as a percentage) of (i) aggregate Consolidated Net
Income produced by, or otherwise attributable to, such asset during the 36 month
period most recently ended prior to the effective date of such transfer to (ii)
Consolidated Net Income for such 36 month period.
"Percentage of Tangible Assets Transferred" shall mean,
with respect to each asset transferred pursuant to clause (vii) of Section
7.02(b), the ratio (expressed as a percentage) of (i) the greater of such
asset's fair market value or net book value (determined as of the last day of
the fiscal quarter immediately preceding the date of such transfer) to (ii)
Consolidated Tangible Assets (determined as of the last day of the fiscal
quarter immediately preceding the date of such Transfer).
"Permitted Investment" shall mean:
(a) the loans, investments and advances existing as of the
Closing Date and listed on Schedule II hereto;
(b) stock, obligations or securities of a corporation
which is, or after such purchase or acquisition becomes, a Subsidiary
of the A Borrower;
(c) obligations directly issued by the United States or any of
its agencies or obligations fully guaranteed by the United States,
provided that such obligations mature within one year from the date
acquired;
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(d) (i) certificates of deposit which mature within one year
from the date of purchase that are issued by, or (ii) bankers'
acceptances eligible for rediscount under requirements of The Board of
Governors of the Federal Reserve System that are accepted by, any
commercial bank or trust company (A) organized under the laws of the
United States or any of its states or having branch offices therein,
(B) having consolidated capital, surplus and undivided profits
aggregating at least $750,000,000 and (C) whose senior unsecured debt
securities are rated AA or better by S&P or Aa2 or better by Moody's;
(e) commercial paper given an A-1 or better rating by S&P,
a P-1 or better rating by Moody's and maturing not more than 270 days
from the date acquired;
(f) loans and advances (i) between the A Borrower and any
wholly-owned Subsidiary of the A Borrower (other than Exempt
Subsidiaries) or (ii) between wholly-owned Subsidiaries of the A
Borrower (other than Exempt Subsidiaries);
(g) outstanding loans and advances to employees for travel
and other similar expenses reasonably incurred in the ordinary course
of business;
(h) notes receivable with a term not in excess of 180 days
arising from transactions with customers and suppliers in the ordinary
course of business in an aggregate outstanding amount not in excess of
$5,000,000;
(i) any loans, advances or investments other than as
specified in clauses (a) - (h) above, so long as the aggregate of all
such loans, advances and investments does not, at any time, exceed the
sum of (i) $2,000,000 plus (ii) 10% of Consolidated Tangible Net Worth,
the latter measured at the end of the fiscal quarter immediately
preceding the date of determination thereof; and
(j) loans, advances and investments by the Borrowers to
Exempt Subsidiaries in an aggregate outstanding amount not in excess of
$5,000,000.
"Permitted Lien" shall mean:
(a) Liens for taxes, assessments or other governmental
levies or charges not yet due or which are subject to a good faith
contest;
(b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics and materialmen incurred in the ordinary course
of business for sums not yet due or are subject to a good faith
contest;
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(c) Liens (other than any Lien imposed by ERISA) incurred,
or deposits made, in the ordinary course of business (i) in connection
with workers' compensation, unemployment insurance or other types of
social security, or (ii) otherwise to satisfy statutory or legal
obligations; provided, however, that in each such case such Liens (A)
were not incurred or made in connection with the incurrence or
maintenance of Debt and (B) do not in the aggregate materially detract
from the value of the property or assets so encumbered or materially
impair the use thereof in the operation of its business;
(d) Liens on property or assets of a Subsidiary of the A
Borrower to secure obligations of such Subsidiary to the A Borrower or
any Subsidiary of the A Borrower;
(e) Liens in existence on the Closing Date as set forth on
Schedule IV hereto with an aggregate principal amount not in excess of
$1,000,000;
(f) minor survey exceptions or minor encumbrances,
easements or reservations, or rights of others for rights-of-way,
utilities and other similar purposes, or zoning or other restrictions
as to use of real property, that are necessary for the conduct of the
operations of the A Borrower and its Subsidiaries or that customarily
exist on properties of corporations engaged in similar businesses and
are similarly situated and that do not in any event materially impair
their use in the operations of such Borrower and its Subsidiaries;
(g) Liens, other than those specified in clauses (a)
through (f) above, that do not, at any time, secure Debt in aggregate
principal amount in excess of the sum of $10,000,000 plus 5% of
Consolidated Tangible Net Worth of the A Borrower (measured at the end
of the fiscal quarter immediately preceding the date of determination),
and provided such Liens do not encumber any current assets of the A
Borrower or its Subsidiaries.;
(h) Liens granted any Bank.
"Person" shall mean at any time an individual, a
corporation, an association, a trust, a government, a political subdivision, a
governmental agency or instrumentality or any other entity or other
organization.
"Plan" shall mean a defined benefit pension plan under
ERISA for the unfunded liabilities of which, upon termination, the Company could
be held liable by the PBGC.
"Pro Rata" shall mean, as to each Bank, the ratio
determined by dividing such Bank's B Commitment by the aggregate of all Banks' B
Commitments.
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"Prudential Agreement" shall mean that Note Agreement,
dated as of June 29, 1995, between INMAC B.V. and The Prudential Insurance
Company of America relating to the Senior Guaranteed Notes due September 21,
2001 of INMAC B.V.
"Quick Ratio" shall mean the ratio of total current
assets minus inventory to total current liabilities, all determined in
accordance with GAAP.
"Reference Bank" shall mean ABN AMRO Bank N.V.
"Reference Rate" shall mean, as of any date, the higher
of (i) the rate of interest publicly announced from time to time by the Agent at
its principal office in Chicago as its reference rate or (ii) 0.50% above the
Federal Funds Rate in effect on such date.
"Reference Rate Advance" shall mean an Advance which
bears interest at a rate per annum determined on the basis of the Reference
Rate, as provided in Section 2.07 hereof.
"Restricted Payment" of any Person, shall mean (i)
dividend payments or other distributions of assets, properties, obligations or
securities on account of any shares of any class of capital stock (other than
stock dividends) and (ii) repurchases on redemptions of capital stock.
"Revolver Termination Date" shall mean the 364th day
from the Closing Date or the earlier of the termination in whole of the Total
Commitments pursuant to Section 2.05 or 8.01 hereof, or such later date as may
then be in effect pursuant to Section 2.14 hereof.
"S&P" shall mean Standard & Poor's Ratings Group, a
corporation organized and existing under the laws of the State of New York, its
successors and assigns.
"Senior Debt" shall mean all Debt outstanding pursuant
to this Agreement and any other Debt of a Borrower and its Subsidiaries not
expressly subordinated on terms satisfactory to the Majority Banks to the Debt
outstanding under this Agreement.
"Solvent" shall mean, with respect to any Person, that
as of any date of determination, (i) the then fair saleable value of the assets
of such Person is (a) greater than the then total amount of liabilities
(including contingent, subordinated, matured and unliquidated liabilities) of
such Person and (b) greater than the amount that will be required to pay such
Person's probable liability on such Person's then existing debts as they become
absolute and matured, (ii) such Person's capital is not unreasonably small in
relation to its business or any contemplated or undertaken transaction, and
(iii) such Person does not intend
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to incur, or believe or reasonably should
believe that it will incur, debts beyond its ability to pay such debts as they
become due.
"Subsidiary" shall mean, with respect to any Person,
any corporation, partnership, trust or other Person of which more than 80% of
the outstanding capital stock (or similar property right in the case of
partnerships and trusts) having ordinary voting power to elect a majority of the
board of directors of such corporation (or similar governing body or Person with
respect to partnerships and trusts) (irrespective of whether or not at the time
capital stock of any other class or classes of such corporation shall or might
have voting power upon the occurrence of any contingency) is at the time
directly or indirectly owned by such Person, or one or more other Subsidiaries
of such Person, or by one or more other Subsidiaries of such Person.
"Swing-Line Advance" shall mean an A Swing-Line Advance
or a B Swing-Line Advance made in Dollars.
"Tangible Assets" shall have such meaning as is defined
by GAAP, but shall not include any patents, trademarks, copyrights, maskworks or
other intellectual property or rights therein.
"Tangible Net Worth" shall mean, at any time such
amount is being computed, the excess of total assets of any Person over total
liabilities of such Person. Total assets do not include assets which would be
classified as intangible assets under GAAP, including goodwill, patents,
copyrights and similar items. Total liabilities include all current corporate
liabilities, all Long-Term Debt (including debt obligations to affiliated
corporations and subsidiaries), minority interests and deferred items (such as
taxes, income and pension funds).
"Total A Liability" shall mean, as of any date of
determination, the sum of (x) all A Advance Liability plus (y) all A
Swing-Line Liability plus (z) all A Letter of Credit Liability.
"Total B Liability" shall mean as of any date of
determination the sum of (x) all B Advance Liability plus (y) all B
Swing-Line Liability plus (z) all B Letter of Credit Liability.
"Total Commitment" shall mean $30,000,000 (or the
equivalent thereof in one or more Alternative Currencies), as such amount may be
reduced pursuant to Section 2.05 hereof.
"Total Letter of Credit Liability" shall mean, as of
any date of determination, the sum of (a) all A Letter of Credit Liability
plus (y) all B Letter of Credit Liability.
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SECTION 1.02. Computation of Time Periods. In this
Agreement, in the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the words
"to" and "until" each mean "to but excluding."
SECTION 1.03. Accounting Terms. Unless otherwise
specified in this Agreement, all accounting terms used in this Agreement shall
be interpreted, all accounting determinations under this Agreement shall be
made, and all financial statements required to be delivered under this Agreement
shall be prepared in accordance with GAAP as in effect in the United States from
time to time, on a consistent basis.
SECTION 1.04. Interpretation. The following rules shall
apply to the construction of this Agreement unless the context requires
otherwise: (a) the singular includes the plural and the plural the singular; (b)
words importing any gender include the other gender; (c) references to statutes
are to be construed as including all statutory provisions consolidating,
amending or replacing the statute to which reference is made; (d) references to
"writing" include printing, photocopying, typing, lithography and other means of
reproducing words in a tangible visible form; (e) the words "including",
"includes" and "include" shall be deemed to be followed by the words "without
limitation"; (f) references to articles, sections (or subdivisions of sections),
exhibits, annexes or schedules are to those of this Agreement unless otherwise
indicated; (g) references to agreements and other contractual instruments shall
be deemed to include all subsequent amendments or modifications not prohibited
by the terms of this Agreement; (h) references to Persons include their
respective permitted successors and assigns; and (i) headings herein are solely
for convenience of reference and shall not constitute a part of this Agreement
nor shall they affect its meaning.
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ARTICLE II
AMOUNTS AND TERMS OF ADVANCES
SECTION 2.01. The Advances. (a) A Advances.
Each Bank severally agrees, on the terms and conditions hereinafter set forth,
to make A Advances to the A Borrower from time to time on any Business Day
during the period from the date hereof until the Revolver Termination Date in an
aggregate amount (determined in Dollars) not to exceed at any time the Dollar
amount of such Bank's A Commitment, as such amount may be reduced pursuant to
Section 2.05 hereof; provided, however, that such Bank shall not
be obligated to make any A Advance if, after giving effect to such A Advance and
the other A Advances to be made by the other Banks as part of the same A
Borrowing, either (i) Total A Liability shall exceed the aggregate A Commitment,
or (ii) the sum of Total A Liability plus Total B Liability shall exceed
the Total Commitment. Each A Borrowing shall be in an aggregate amount not less
than $2,500,000 (or the equivalent thereof in any Alternative Currency) or an
integral multiple of $500,000 (or the equivalent thereof in any Alternative
Currency) in excess thereof, and shall consist of A Advances made in the same
Currency on the same day by the Banks ratably according to their respective A
Commitments. Within the limits of each Bank's A Commitment, the A Borrower may
borrow, prepay pursuant to Section 2.10(a) hereof and reborrow under this
Section 2.01(a).
(b) B Advances. Each Bank severally agrees, on the
terms and conditions hereinafter set forth, to make B Advances to each B
Borrower from time to time on any Business Day during the period from the date
hereof until the Revolver Termination Date in an aggregate amount (determined in
Dollars) not to exceed at any time the Dollar amount of such Bank's B
Commitment, as such amount may be reduced pursuant to Section 2.05 hereof;
provided, however, that such Bank shall not be obligated to make
any B Advance if, after giving effect to such B Advance and the other B Advances
to be made by the other Banks as part of the same B Borrowing, either (i) Total
B Liability shall exceed the aggregate B Commitment, or (ii) the sum of Total A
Liability plus Total B Liability shall exceed the Total Commitment. Each
B Borrowing shall be in an aggregate amount not less than $2,500,000 (or the
equivalent thereof in any Alternative Currency) or an integral multiple of
$500,000 (or the equivalent thereof in any Alternative Currency) in excess
thereof and shall consist of B Advances made in the same Currency on the same
day by the Banks ratably according to their respective B Commitments. Within the
limits of each Bank's B Commitment, each B Borrower may borrow, prepay pursuant
to Section 2.10(a) hereof and reborrow under this Section 2.01(b).
(c) For purposes of this Section 2.01 and all other provisions
of this Article II, the equivalent in Dollars of any Alternative
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Currency or the equivalent in any Alternative Currency of Dollars or of any
other Alternative Currency shall be determined in accordance with Section 2.17.
SECTION 2.02. The Swing-Line Advances. (a) A
Swing-Line Advances. The Agent agrees, on the terms and conditions
hereinafter set forth, to make A Swing-Line Advances in Dollars to the A
Borrower from time to time on any Business Day during the period from the date
hereof until the Revolver Termination Date; provided, however,
that the Agent shall not be obligated to make any A Swing-Line Advance if, after
giving effect to such A Swing-Line Advance either (i) Total A Liability shall
exceed the aggregate A Commitment, (ii) the sum of Total A Swing-Line Liability
plus Total B Swing-Line Liability shall exceed $2,500,000, or (iii) the
sum of Total A Liability plus Total B Liability shall exceed the Total
Commitment. Each A Swing-Line Advance shall be in an amount not less than
$1,000,000 or an integral multiple of $500,000 in excess thereof. The A Borrower
may borrow, prepay pursuant to Section 2.10(a) hereof or repay pursuant to
Section 2.06(b), and reborrow under this Section 2.02(a).
(b) B Swing-Line Advances. The Agent severally agrees,
on the terms and conditions hereinafter set forth, to make B Swing-Line Advances
in Dollars to each B Borrower from time to time on any Business Day during the
period from the date hereof until the Revolver Termination Date;
provided, however, that the Agent shall not be obligated to make
any B Swing-Line Advance if, after giving effect to such B Swing-Line Advance
either (i) Total B Liability shall exceed the aggregate B Commitment, (ii) the
sum of Total B Swing-Line Liability plus Total A Swing-Line Liability
shall exceed $2,500,000, or (iii) the sum of Total B Liability plus
Total A Liability shall exceed the Total Commitment. Each Swing-Line Advance
shall be in an amount not less than $1,000,000 or an integral multiple of
$500,000 in excess thereof. Each B Borrower may borrow, prepay pursuant to
Section 2.10(a) hereof or repay pursuant to Section 2.06(b), and reborrow under
this Section 2.02(b).
(c) Participation in Swing-Line Advances.
(i) Promptly after making each Swing-Line Advance, the
Agent will notify each Bank of the date and amount of such Swing-Line
Advance. On the date of that any Swing-Line Advance is not paid when
due, the Agent shall be deemed irrevocably and unconditionally to have
sold and transferred to each Bank without recourse or warranty, and
each Bank shall be deemed to have irrevocably and unconditionally
purchased and received from the Agent, an undivided interest and
participation to the extent of such Bank's Pro Rata share in such
Swing-Line Advance.
(ii) In the event the respective Borrower does not
repay a Swing-Line Advance when due the Agent will promptly notify the
Banks thereof and each Bank shall immediately pay to the Agent, in
lawful money of the United States and in same
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day funds, an amount equal to such Bank's Pro Rata share of such unpaid
Swing-Line Advance with interest at the Federal Funds Rate for each day
commencing on the day after such notification until such amount is paid
to the Agent.
(iii) Promptly after the Agent receives a repayment of
a Swing-Line Advance the Agent shall promptly pay to each Bank which
funded its participation therein, in lawful money of the United States
and in the kind of funds so received, an amount equal to such Bank's
ratable share of such payment, including its ratable share of interest
paid by the respective Borrower after the date such Bank funded its
participation therein.
(iv) The obligation of each Bank to make payments
under this subsection shall be unconditional and irrevocable and such
payments shall be made under all circumstances.
SECTION 2.03. Making the Advances. (a) Each Borrowing shall
be made on notice:
(x) on the fourth Business Day before the requested
date of a proposed Borrowing in Dollars, and
(y) on the fifth Business Day before the requested
date of a proposed Borrowing in an Alternative Currency,
by the respective Borrower to the Agent, which shall then give each Bank prompt
written notice thereof by telecopier (a "Notice of Borrowing"). Each Notice of
Borrowing shall be by telecopier, confirmed immediately in writing, in
substantially the form of Exhibit B-1 hereto, specifying therein (i)
whether the requested Borrowing is an A Borrowing or a B Borrowing, (ii) the
principal amount of the Borrowing, (iii) the Currency of the Borrowing, (iv) the
date of the Borrowing, and (v) the requested initial Interest Period for each
Advance.
Each Bank shall, before 10:00 A.M. (San Francisco time) on the
date of such Borrowing, make available for the account of its Applicable Lending
Office to the Agent, in same day funds, (i) in the case of a Borrowing in
Dollars, at such account maintained at the Payment Office for Dollars as shall
have been notified by the Agent to the Banks prior thereto, such Bank's ratable
portion of such Borrowing in Dollars, and (ii) in the case of a Borrowing in an
Alternative Currency (provided that after giving effect to such Borrowing, the
equivalent in Dollars of Total A Liability or Total B Liability, as the case may
be, does not exceed the aggregate A Commitment or the aggregate B Commitment,
respectively, with such equivalent to be determined on the date of the Notice of
Borrowing), at such account maintained at the Payment Office for Alternative
Currency as shall have been notified by the Agent to the Banks
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prior thereto, such Bank's ratable portion of such Borrowing in such Alternative
Currency. After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article V hereof, the Agent will make such
funds available to the respective Borrower at the aforesaid applicable Payment
Office.
(b) Each Notice of Borrowing shall be irrevocable and binding
on the respective Borrower. The respective Borrower shall indemnify each Bank
against any loss, cost or expense incurred by such Bank as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable conditions set forth in Article V, including,
without limitation, any loss (including loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Bank to fund the Eurocurrency Rate Advance to be
made by such Bank as part of such Borrowing when such Eurocurrency Rate Advance,
as a result of such failure, is not made on such date.
(c) Unless the Agent shall have received notice from a Bank
prior to the date of any Borrowing that such Bank will not make available to the
Agent such Bank's ratable portion of such Borrowing, the Agent may assume that
such Bank has made such portion available to the Agent on the date of such
Borrowing in accordance with subsection (a) of this Section 2.03 and the Agent
may, in reliance upon such assumption, make available to the respective Borrower
on such date a corresponding amount. If and to the extent that such Bank shall
not have so made such ratable portion available to the Agent, such Bank and such
Borrower severally agree to repay the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to such Borrower until the date such amount is
repaid to the Agent, at (i) in the case of the respective Borrower, the interest
rate applicable at the time to Advances comprising such Borrowing and (ii) in
the case of such Bank, the Federal Funds Rate. If such Bank shall repay to the
Agent such corresponding amount, such amount so repaid shall constitute such
Bank's Advance as part of such Borrowing for purposes of this Agreement.
(d) The failure of any Bank to make an Advance to be made by it
as part of any Borrowing shall not relieve any other Bank of its obligation, if
any, hereunder to make its Advance on the date of such Borrowing, but no Bank
shall be responsible for the failure of any other Bank to make the Advance to be
made by such other Bank on the date of any Borrowing.
(e) Each Swing-Line Advance shall be made by an irrevocable
notice (a "Notice of Swing-Line Borrowing") in the form of Exhibit B-2,
given not later than 10:00 a.m. (San Francisco time) on the [first] Business Day
before the requested date of such Swing-Line Advance, which Notice may be made
by telephone (and confirmed immediately in writing) and shall specify (i)
whether the requested Swing-Line Advance is an A Swing-Line Advance or a B
Swing-Line Advance, (ii) the principal amount of the Swing-Line Advance,
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and (iii) the date of the Swing-Line Advance. The Agent will promptly notify
each Bank after it makes each Swing-Line Advance. Upon fulfillment of the
applicable conditions set forth in Article V hereof, the Agent will make such
Swing-Line Advance available to the respective Borrower at the Payment Office
for Dollars.
SECTION 2.04. Fees. (a) Commitment Fee. The
Borrowers agree to pay to the Agent for the account of each Bank a commitment
fee in Dollars on the average daily unused portion of such Bank's B Commitment
(less on any day the sum in Dollars of (x) A Advance Liability plus (y)
A Swing-Line Liability plus (z) B Swing-Line Liability) from the Closing
Date until the Revolver Termination Date at the rate of 3/10 of 1% per annum,
payable on the last day of each March, June, September and December during the
term hereof, commencing September 30, 1995, and on the Revolver Termination
Date. For purposes of determining the commitment fee hereunder, the equivalent
in Dollars of each Eurocurrency Rate Advance made by such Bank in an Alternative
Currency as determined on the date of the making of such Advance shall be the
amount of such Bank's B Commitment used in connection with such Advance, and no
further adjustments shall be made with respect to the unused portions of such
Bank's B Commitment based upon fluctuations thereafter in the value of the
Alternative Currency of such Advance.
(b) Participation Fee. The Borrowers agree to pay to
the Agent for the account of the Banks, a participation fee in Dollars in an
aggregate amount of 0.20% of the aggregate B Commitment. Such fee shall be
payable on the Closing Date.
(c) Agent Fees. The Borrowers agree to pay to the Agent
such other fees in Dollars as are specified in a letter agreement dated June 27,
1995 between the Borrowers and the Agent.
SECTION 2.05. Reduction of the Commitments. The A
Borrower shall have the right, upon at least five Business Days' notice to the
Agent, to terminate in whole or permanently reduce ratably in part the unused
portion of the A Commitment of each Bank; provided, however,
that each partial reduction shall be in the aggregate amount of $2,000,000 or an
integral multiple thereof in excess of $1,000,000. Each B Borrower shall have
the right, upon at least five Business Days' notice to the Agent, to reduce
ratably in part the unused portion of the B Commitment to such B Borrower of
each Bank; provided; however, that each partial reduction shall
be in the aggregate amount of $5,000,000 or an integral multiple thereof in
excess of $1,000,000.
SECTION 2.06. Repayment. (a) Advances. Each
Borrower agrees to repay the unpaid principal amount of each Advance made to
such Borrower by each Bank on the Revolver Termination Date. Such payment shall
be made to the applicable Payment Office for the benefit of each such Bank.
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(b) Swing-Line Advances. Each Borrower agrees to repay
the unpaid principal amount of each Swing-Line Advance made to such Borrower on
the seventh day after the making of such Swing-Line Advance. Such payment shall
be made not later than 10:00 a.m. (San Francisco time) in same day funds by
deposit of such funds to the Agent's account maintained at the Payment Office
for Dollars.
SECTION 2.07. Interest. (a) A Advances. The A
Borrower shall pay interest on the unpaid principal amount of each A Advance
made by each Bank from the date of such A Advance until such principal amount
shall be paid in full, at a rate per annum equal at all times during each
Interest Period for such Advance to the sum of the Eurocurrency Rate for such
Interest Period plus 3% per annum payable on the last day of such
Interest Period, and, if such Interest Period is longer than three months,
payable also on the last day of each quarter during such Interest Period. All
interest payments under this Section 2.07(a) are to be made to the applicable
Payment Office for the benefit of each Bank.
(b) B Advances. Each B Borrower shall pay interest on
the unpaid principal amount of each B Advance made by each Bank from the date of
such B Advance until such principal amount shall be paid in full, at a rate per
annum equal at all times during each Interest Period for such Advance to the sum
of the Eurocurrency Rate for such Interest Period plus 1.15% per annum
payable on the last day of such Interest Period, and, if such Interest Period is
longer than three months, payable also on the last day of each quarter during
such Interest Period. All interest payments under this Section 2.07(b) are to be
made to the applicable Payment Office for the benefit of each Bank.
(c) A Swing-Line Advances. The A Borrower shall pay
interest on the unpaid principal amount of each A Swing- Line Advance made by
the Agent from the date of such A Swing-Line Advance until such principal amount
shall be paid in full, at a rate per annum equal to the Reference Rate
plus 1% per annum, and such interest shall be due and payable on the
date of payment of each such Swing-Line Advance. All interest payments under
this Section 2.07(c) are to be made to the Payment Office for Dollars and,
promptly after receipt thereof, to the extent any Bank has purchased a
participation in such Swing-Line Advance as provided in Section 2.02(c) hereof,
the Agent shall distribute to such Bank its Pro Rata share of such interest
payment.
(d) B Swing-Line Advances. Each B Borrower shall pay
interest on the unpaid principal amount of each B Swing- Line Advance made by
the Agent from the date of such B Swing-Line Advance until such principal amount
shall be paid in full, at a rate per annum equal to the Reference Rate, and such
interest shall be due and payable on the date of payment of each such Swing-Line
Advance. All interest payments under this Section 2.07(d) are to be made to the
Payment Office for Dollars, and, promptly after receipt thereof, to the
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extent any Bank has purchased a participation in such Swing-Line Advance as
provided in Section 2.02(c) hereof, the Agent shall distribute to such Bank its
Pro Rata share of such interest payment.
(e) Default Interest. Each Borrower shall pay interest
on the unpaid principal amount of each Advance or Swing- Line Advance that is
not paid when due and on the unpaid amount of all interest, fees and other
amounts payable hereunder that is not paid when due, payable on demand, at a
rate per annum equal at all times to (i) in the case of any amount of principal,
the greater of (x) 2% per annum above the rate per annum required to be paid on
such Advance or Swing-Line Advance immediately prior to the date on which such
amount became due and (y) 2% per annum above the Reference Rate in effect from
time to time and (ii) in the case of all other amounts, 2% per annum above the
Reference Rate in effect from time to time
SECTION 2.08. Additional Interest on Eurocurrency Rate
Advances. Each Borrower agrees to pay to each Bank so long as such Bank
shall be required under regulations of the Board of Governors of the Federal
Reserve System to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities, additional interest on the
unpaid principal amount of each Eurocurrency Rate Advance of such Bank from the
date of such Eurocurrency Rate Advance until such principal amount is paid in
full, at an interest rate per annum equal at all times to the remainder obtained
by subtracting (i) the Eurocurrency Rate for the applicable Interest Period for
such Eurocurrency Rate Advance from (ii) the rate obtained by dividing such
Eurocurrency Rate by a percentage equal to 100% minus the Eurocurrency Rate
Reserve Percentage of such Bank for such Interest Period, payable on each date
on which interest is payable on such Eurocurrency Rate Advance. Such additional
interest shall be determined by such Bank and notified to each Borrower through
the Agent.
SECTION 2.09. Interest Rate Determination and
Protection. (a) The Reference Bank agrees to furnish to the Agent timely
information for the purpose of determining each Eurocurrency Rate. If the
Reference Bank shall not furnish such timely information to the Agent for the
purpose of determining any such interest rate, the Agent shall determine such
interest rate on the basis of timely information furnished by any other major
international bank reasonably selected by it or as otherwise instructed by the
Majority Banks.
(b) The Agent shall give prompt notice to the respective
Borrower and the Banks of the applicable interest rate determined by the Agent
for purposes of Section 2.07(a), (b), (c) or (d).
(c) If, with respect to any Eurocurrency Rate Advances, the
Majority Banks notify the Agent that the Eurocurrency Rate for any Interest
Period for such Advances will not adequately reflect the cost to such Majority
Banks of making, funding or maintaining their
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respective Eurocurrency Rate Advances for such Interest Period, the Agent shall
forthwith so notify the respective Borrower and the Banks, whereupon
(i) each Eurocurrency Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, convert into a Reference Rate Advance, and
(ii) the obligation of the Banks to make
Eurocurrency Rate Advances shall be suspended until the Agent shall
notify the respective Borrower and the Banks that the circumstances
causing such suspension no longer exist.
(d) If any Borrower shall fail to select the duration of any
Interest Period for any Eurocurrency Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Agent will forthwith so notify such Borrower and the Banks and such Advances
will automatically, on the last day of the then existing Interest Period
therefor, convert into Reference Rate Advances.
SECTION 2.10. Prepayment.
(a) Voluntary Prepayments.
(i) Advances. Any Borrower may, upon at least
five Business Days' notice to the Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is
given such Borrower shall, prepay the outstanding aggregate principal
amount of the Advances comprising part of the same Borrowing in whole
or ratably in part together with accrued interest thereon to the date
of prepayment on the amount prepaid, provided, however,
that (x) each partial prepayment shall be in an aggregate principal
amount not less than $1,000,000 (determined on the date notice of
prepayment is given in accordance with Section 2.17) and (y) any
prepayment of any Eurocurrency Rate Advances shall be made on, and only
on, the last day of an Interest Period for such Advances.
(ii) Swing-Line Advances. Any Borrower may,
upon at least one Business Days' notice to the Agent stating the
proposed date of prepayment, prepay in full any Swing-Line Advance
together with accrued interest thereon to the date of such prepayment.
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(b) Mandatory Prepayments. (i) A Advances. If,
on the last day of any Interest Period for Eurocurrency Rate Advances
comprising the same Borrowing, the equivalent in Dollars of the Total A
Liability exceeds the aggregate A Commitment, the A Borrower agrees to
prepay on such last day such excess to the Agent, with accrued interest
to the date of such prepayment on the principal amount prepaid.
Mandatory prepayments pursuant to this subsection (b)(i) shall be
applied to the ratable payment of all outstanding A Advances.
(ii) B Advances. If, on the last day of any Interest
Period for Eurocurrency Rate Advances comprising the same Borrowing,
the equivalent in Dollars of the Total B Liability exceeds the
aggregate B Commitment or the sum of Total A Liability plus Total B
Liability exceeds the Total Commitment, the B Borrowers agree to prepay
on such last day to the Agent such excess, with accrued interest to the
date of such prepayment on the principal amount prepaid. Mandatory
prepayments pursuant to this subsection (b)(ii) shall be applied to the
ratable payment of all outstanding B Advances.
SECTION 2.11. Increased Costs. (a) If, due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements in the case of Eurocurrency Rate
Advances included in the Eurocurrency Rate Reserve Percentage) in or in the
interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
cost to any Bank of agreeing to make or making, funding or maintaining Advances,
then each Borrower shall from time to time, upon demand by such Bank (with a
copy of such demand to the Agent), pay to the Agent for the account of such Bank
additional amounts sufficient to compensate such Bank for such increased cost. A
certificate as to the amount of such increased cost, submitted to each Borrower
and the Agent by such Bank, shall be conclusive and binding for all purposes,
absent manifest error.
(b) If any Bank determines that compliance with any law or
regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such Bank
or any corporation controlling such Bank and that the amount of such capital is
increased by or based upon the existence of such Bank's commitment to lend
hereunder and other commitments of this type, then, upon demand by such Bank
(with a copy of such demand to the Agent), the Borrowers shall immediately pay
to the Agent for the account of such Bank, from time to time as specified by
such Bank, additional amounts sufficient to compensate such Bank or such
corporation in light of such circumstances, to the extent that such Bank
reasonably determines such increase in capital to be allocable to the existence
of such Bank's commitment to lend hereunder. A certificate as to such amounts
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submitted to each Borrower and the Agent by such Bank shall be conclusive and
binding for all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Bank shall notify the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for any Bank or its Eurocurrency Lending
Office to perform its obligations hereunder to make Eurocurrency Rate Advances
or to fund or maintain Eurocurrency Rate Advances hereunder in any jurisdiction,
(i) the obligation of the Banks to make Advances at the Eurocurrency Rate (or
some variation thereof) in such jurisdiction shall be suspended until the Agent
shall notify each Borrower and the Banks that the circumstances causing such
suspension no longer exist and (ii) each Borrower shall forthwith prepay in full
all Advances made at the Eurocurrency Rate (or some variation thereof) of all
Banks with respect to such jurisdiction then outstanding, together with interest
accrued thereon, unless each Borrower, within five Business Days of notice from
the Agent, converts all Advances made at the Eurocurrency Rate (or same
variation thereof) of all Banks with respect to such jurisdiction then
outstanding into Advances made at the Reference Rate (or some variation thereof)
on the last day of the Interest Period for such Eurocurrency Rate Advances.
SECTION 2.13. Payments and Computations. (a) Each
Borrower shall make each payment hereunder and under the Notes, except with
respect to principal of, interest on, and other amounts relating to Advances
denominated in an Alternative Currency, not later than 10:00 A.M. (San Francisco
time) on the day when due in Dollars to the Agent in same day funds by deposit
of such funds to the Agent's account maintained at the Payment Office for
Dollars in San Francisco. Each Borrower shall make each payment hereunder and
under the Notes with respect to principal of, interest on, and other amounts
relating to Advances denominated in an Alternative Currency not later than 10:00
A.M. (at the Payment Office for such Alternative Currency) on the day when due
in such Alternative Currency to the Agent in same day funds by deposit of the
funds to the Agent's account maintained at such Payment Office. The Agent will
promptly thereafter cause to be distributed like funds relating to the payment
of principal or interest or commitment fees ratably (other than amounts payable
pursuant to Section 2.08, 2.11 or 2.15) to each Bank for the account of its
Applicable Lending Office, and like funds relating to the payment of any other
amount payable to any Bank to such Bank for the account of its Applicable
Lending Office, in each case to be applied in accordance with the terms of this
Agreement.
(b) Each Borrower hereby authorizes each Bank, if and to the
extent payment owed to such Bank is not made when due hereunder or under the
Note held by such Bank, to charge from time to time against any or all of such
Borrower's accounts with such Bank any amount so due.
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(c) All computations of interest and of fees shall be made on
the basis of a year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day) occurring in the period for
which such interest or fee is payable.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or fees, as the case
may be.
(e) Unless the Agent shall have received notice from a Borrower
prior to the date on which any payment is due to the Banks hereunder that such
Borrower will not make such payment in full, the Agent may assume that such
Borrower has made such payment in full to the Agent on such date and the Agent
may, in reliance upon such assumption, cause to be distributed to each Bank on
such due date an amount equal to the amount then due such Bank. If and to the
extent such Borrower shall not have so made such payment in full to the Agent,
each Bank shall repay to the Agent forthwith on demand such amount distributed
to such Bank together with interest thereon at the Federal Funds Rate, for each
day from the date such amount is distributed to such Bank.
SECTION 2.14. Extension of Revolver Termination Date.
Not earlier than 60 days or more than 90 days before the Revolver Termination
Date then in effect, all the Borrowers may request a 364 day extension of such
Revolver Termination Date. Such request must be submitted in writing to each of
the Banks, the Issuing Bank and the Agent. Not later than 30 days after receipt
of such notice, each Bank shall notify the Agent whether (in its sole and
absolute discretion) it consents to such request (and if any Bank fails to so
notify the Agent, it shall be deemed not to have consented to such request) and
the Agent promptly thereafter shall notify the Borrowers and the Banks of the
results thereof. If the Agent fails to so notify the Borrowers, the Banks shall
be deemed not to have consented to such request. If all of the Banks have
consented, then, so long as the representations and warranties contained in
Article VI hereof (other than (i) representations and warranties
which expressly speak as of a particular date or are no longer true and correct
as a result of a change which is permitted by this Agreement or (ii) as
otherwise disclosed by any Borrower and approved in writing by the Majority
Banks) shall be true and correct on and as of the Revolver Termination Date then
in effect and no Default or Event of Default shall exist, the Revolver
Termination Date shall be extended, effective as of the Revolver Termination
Date then in effect, to the date that is 364 days from such Revolver Termination
Date.
SECTION 2.15. Taxes. (a) Any and all payments by a
Borrower hereunder or under the Notes shall be made, in accordance with Section
2.13, free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or
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withholdings, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Bank or the
Agent, as the case may be, is organized or any political subdivision thereof
and, in the case of each Bank, taxes imposed on its income, and franchise taxes
imposed on it, by the jurisdiction of such Bank's Applicable Lending Office or
any political subdivision thereof (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If such Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Bank or the
Agent, (i) the sum payable shall be increased as may be necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 2.15) such Bank or the Agent, as the case may
be, receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and (iii)
such Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law.
(b) In addition, the Borrowers agree to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made hereunder or under the Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrowers agree to indemnify each Bank and the Agent
for the full amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this
Section 2.15) paid by such Bank or the Agent, as the case may be, and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Bank or the Agent, as the case may be, makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, each
Borrower agrees to furnish to the Agent, at its address specified in Section
11.02, the original or a certified copy of a receipt evidencing payment thereof.
If no Taxes are payable in respect of any payment hereunder or under the Notes,
such Borrower will furnish to the Agent, at such address, a certificate from
each appropriate taxing authority, or an opinion of counsel acceptable to the
Agent, in either case stating that such payment is exempt from or not subject to
Taxes.
(e) Each Bank organized under the laws of a jurisdiction
outside the United States, on or prior to the date of its execution and delivery
of this Agreement, and from time to time thereafter if requested in writing by
the A Borrower (but only so long as such Bank
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remains lawfully able to do so), shall provide the A Borrower with Internal
Revenue Service Form 1001 or 4224, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such Bank is
entitled to benefits under an income tax treaty to which the United States is a
party which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of a trade or business in the United States. If the
form provided by a Bank at the time such Bank first becomes a party to this
Agreement indicates a United States interest withholding tax rate in excess of
zero, withholding tax at such rate shall be considered excluded from "Taxes" as
defined in subsection (a) of this Section 2.15.
(f) For any period with respect to which a Bank has failed to
provide the A Borrower with the appropriate form described in subsection (e) of
this Section 2.15 (other than if such failure is due to a change
in law occurring subsequent to the date on which a form originally was required
to be provided, or if such form otherwise is not required under the first
sentence of subsection (e) above), such Bank shall not be entitled to
indemnification under subsection (c) of this Section 2.15 with respect to Taxes
imposed by the United States; provided, however, that should a
Bank become subject to Taxes because of its failure to deliver a form required
hereunder, the A Borrower shall take such steps as such Bank shall reasonably
request to assist such Bank to recover such Taxes.
(g) Without prejudice to the survival of any other agreement of
any Borrower hereunder, the agreements and obligations of each Borrower
contained in this Section 2.15 shall survive the payment in full of principal
and interest hereunder and under the Notes.
(h) In the event that a Borrower becomes obligated to make any
payment pursuant to subsection (a), (b) or (c) of this Section 2.15, such
Borrower may request, by written notice, that the respective Bank with respect
to which the payment was made file a claim for refund of the Taxes or Other
Taxes (as well as any penalties or interest for which a payment was made). Such
written notice shall specify the payments made by such Borrower for which such
Borrower requests that such Bank file a claim for refund and shall contain an
opinion of counsel that such Bank has a reasonable basis for claiming such
refund. Any such Bank that receives such a written notice from a Borrower shall
within 30 days file a claim for refund for the requested amounts and shall take
all reasonable steps to pursue such refund. The requested Bank shall have the
right to control any such refund proceeding as well as any resulting
administrative or judicial proceeding. The requesting Borrower shall indemnify
the requested Bank for all out-of-pocket expenses (including, but not limited
to, attorneys' and accounting fees) incurred by such Bank in connection with
such claim for refund. If such Bank receives a refund, such Bank shall promptly
remit the refund to such Borrower.
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SECTION 2.16. Sharing of Payments, Etc. If any Bank
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of the Advances made by it
(other than pursuant to Section 2.08, 2.11 or 2.15) in excess of its ratable
share of payments on account of the Advances, obtained by all the Banks, such
Bank shall forthwith purchase from the other Banks such participations in the
Advances made by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Bank, such purchase from each Bank shall be
rescinded and such Bank shall repay to the purchasing Bank the purchase price to
the extent of such recovery together with an amount equal to such Bank's ratable
share (according to the proportion of (i) the amount of such Bank's required
repayment to (ii) the total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank in respect of
the total amount so recovered. Each Borrower agrees that any Bank so purchasing
a participation from another Bank pursuant to this Section 2.16 may, to the
fullest extent permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully as if such
Bank were the direct creditor of such Borrower in the amount of such
participation.
SECTION 2.17. Currency Equivalents. For purposes of the
provisions of this Article II, (i) the equivalent in Dollars of any Alternative
Currency shall be determined by using the quoted spot rate at which the Agent's
principal office in London offers to exchange Dollars for such Alternative
Currency in London at 11:00 A.M. (London time) on the date on which such
equivalent is to be determined, (ii) the equivalent in any Alternative Currency
of any other Alternative Currency shall be determined by using the quoted spot
rate at which the Agent's principal office in London offers to exchange such
Alternative Currency for the equivalent in Dollars of such other Alternative
Currency in London at 11:00 A.M. (London time) on the date on which such
equivalent is to be determined, and (iii) the equivalent in any Alternative
Currency of Dollars shall be determined by using the quoted spot rate at which
the Agent's principal office in London offers to exchange such Alternative
Currency for Dollars in London at 11:00 A.M. (London time) on the date on which
such equivalent is to be determined.
SECTION 2.18. Evidence of Debt. The Debt of each
Borrower resulting from the Advances (other than Swing-Line Advances) shall be
evidenced by the Notes delivered to the Banks pursuant to Article V, and the
remaining principal amount thereof shall be recorded by the Banks, and, prior to
any transfer, endorsed on the grids thereto in accordance with the terms of the
Notes. The Agent shall also maintain, in accordance with its usual practices, an
account or accounts evidencing the indebtedness of each Borrower under this
Agreement and the amounts of principal and interest payable and paid to each
Bank from time to time under this Agreement which accounts, among other things,
will provide the record for all borrowings
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and payments of Swing-Line Advances and shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.19. Use of Proceeds. Each Borrower shall use
the proceeds of each Borrowing and Swing-Line Advance made by it to support
working capital needs and for general corporate purposes and such proceeds shall
not be used to purchase or carry any Margin Stock (within the meaning of
Regulation U issued by the Board of Governors of the Federal Reserve System) or
to extend credit to others for the purpose of purchasing or carrying any Margin
Stock.
ARTICLE III
AMOUNTS AND TERMS OF LETTERS OF CREDIT
AND PARTICIPATIONS THEREIN
SECTION 3.01. Letters of Credit. (a) The Issuing Bank
agrees, on the terms and conditions hereinafter set forth, to Issue for the
account of the A Borrower, one or more Letters of Credit from time to time
during the period from the date hereof until the date which occurs 30 days
before the Revolver Termination Date, in an aggregate undrawn amount of not less
than $1,000,000 (or the equivalent thereof in any Alternative Currency) or an
integral multiple of $500,000 (or the equivalent thereof in any Alternative
Currency) in excess of such amount, each such Letter of Credit upon its Issuance
to expire on or before the Revolver Termination Date; provided,
however, that the Issuing Bank shall not be obligated to Issue any
Letter of Credit to the A Borrower if:
(i) after giving effect to the Issuance of such
Letter of Credit,Total A Liability shall exceed the aggregate A
Commitment; or
(ii) after giving effect to the Issuance of such
Letter of Credit, Total Letter of Credit Liability shall exceed
$5,000,000 (or the equivalent thereof in any Alternative
Currency); or
(iii) after giving effect to the Issuance of such
Letter of Credit, the sum of Total A Liability and Total B
Liability shall exceed $30,000,000 (or the equivalent thereof
in any Alternative Currency); or
(iv) the Agent or the Majority Banks shall have
notified the Issuing Bank and the A Borrower that no further
Letters of Credit are to be Issued by the Issuing Bank due to
the failure to meet any of the applicable conditions set
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forth in Article V, and such notice has not expired or been
withdrawn by the Majority Banks.
(b) The Issuing Bank agrees, on the terms and conditions
hereinafter set forth, to Issue for the account of each B Borrower, one or more
Letters of Credit from time to time during the period from the date hereof until
the date which occurs 30 days before the Revolver Termination Date, in an
aggregate undrawn amount of not less than $1,000,000 (or the equivalent thereof
in any Alternative Currency) or an integral multiple of $500,000 (or the
equivalent thereof in any Alternative Currency) in excess of such amount, each
such Letter of Credit upon its Issuance to expire on or before the Revolver
Termination Date; provided, however, that the Issuing Bank shall
not be obligated to Issue any Letter of Credit to any B Borrower if:
(i) after giving effect to the Issuance of such
Letter of Credit, Total B Liability shall exceed the aggregate
B Commitment; or
(ii) after giving effect to the Issuance of such
Letter of Credit, Total Letter of Credit Liability shall exceed
$5,000,000 (or the equivalent thereof in any Alternative
Currency); or
(iii) after giving effect to the Issuance of such
Letter of Credit, the sum of Total A Liability and Total B
Liability shall exceed $30,000,000 (or the equivalent thereof
in any Alternative Currency); or
(iv) the Agent or the Majority Banks shall have
notified the Issuing Bank and such B Borrower that no further
Letters of Credit are to be Issued by the Issuing Bank due to
failure to meet any of the applicable conditions set forth in
Article V, and such notice has not expired or been withdrawn by
the Majority Banks.
(c) Within the limits of the obligations of the Issuing Bank
set forth above, each Borrower may request the Issuing Bank to Issue one or more
Letters of Credit, reimburse the Issuing Bank for payments made thereunder
pursuant to Section 3.03(a), and request the Issuing Bank to Issue one or more
additional Letters of Credit under this Section 3.01.
SECTION 3.02. Issuing the Letters of Credit. Each
Letter of Credit shall be issued on at least five Business Days' notice from the
Borrower to the Issuing Bank specifying the Borrower and the date, amount,
expiry, and beneficiary thereof, accompanied by such application and agreement
for the letter of credit and other documents as the Issuing Bank may specify to
such Borrower, each in form and substance satisfactory to the Issuing Bank. On
the date specified by the Borrower in such notice and upon fulfillment of the
applicable conditions
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set forth in Section 3.01 and Article V, the Issuing Bank
will Issue such Letter of Credit in the form specified in such notice and such
application and agreement for letter of credit and shall promptly notify the
Agent thereof.
SECTION 3.03. Reimbursement Obligations. (a)
Notwithstanding any provisions to the contrary in any application and agreement
for letter of credit applicable to any Letter of Credit, each Borrower shall in
respect of each Letter of Credit issued for its account:
(i) pay to the Issuing Bank an amount equal to, and in
reimbursement for, each amount which the Issuing Bank pays
under any Letter or Credit on or before the earlier of (A) the
time specified therefor in the application and agreement for
letter or credit applicable to such Letter or Credit or (B) the
date which occurs one Business Day after payment of such amount
by the Issuing Bank under the Letter or Credit; and
(ii) pay to the Issuing Bank interest on any amount
remaining unpaid under clause (i) above from the date on which
the Issuing Bank pays such amount under any Letter of Credit
until such amount is reimbursed in full to the Issuing Bank
pursuant to clause (i) above, payable on demand, in the case of
the A Borrower, at a rate per annum of Reference Rate
plus 1% per annum and, in the case of the B Borrower,
at a rate per annum of Reference Rate; provided;
however, that any such amount which is not reimbursed
to such Issuing Bank within one Business Day after notice
thereof by the Issuing Bank shall thereafter bear interest,
until such amount is reimbursed in full to such Issuing Bank
pursuant to clause (i) above, payable on demand, in the case of
the A Borrower, at a rate per annum of Reference Rate
plus 3% per annum and, in the case of the B Borrower,
at a rate per annum of Reference Rate plus 2% per
annum.
(b) All amounts to be reimbursed to the Issuing Bank in
accordance with subsection (a) above may, subject to the limitations set forth
in Section 2.01 (exclusive of the minimum borrowing limitations), be paid from
the proceeds of the Advances as follows:
(i) The A Borrower hereby authorizes the Banks to make
pursuant to Section 2.01(a) A Advances at the Reference Rate
which are in the amounts of the reimbursement obligations of
the A Borrower set forth in subsection (a) above, and further
authorizes the Agent (A) to give the Banks, pursuant to Section
2.03(a), a Notice of Borrowing with respect to the A Borrowing
comprised of such A Advances and (B) to distribute the proceeds
of such A Advances to the Issuing Bank to pay such amounts. The
A Borrower agrees that all such A Advances so made shall be
deemed to have been requested by it,
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and directs that all proceeds thereof shall be used to pay such
reimbursement obligations under subsection (a) above.
(ii) Each B Borrower hereby authorizes the Banks to
make pursuant to Section 2.01(b) B Advances at the Reference
Rate which are in the amounts of the reimbursement obligations
of each B Borrower set forth in subsection (a) above, and
further authorizes the Agent (A) to give the Banks, pursuant to
Section 2.03(a), a Notice of Borrowing with respect to the B
Borrowing comprised of such B Advances and (B) to distribute
the proceeds of such B Advances to the Issuing Bank to pay such
amounts. Each B Borrower agrees that all such B Advances so
made shall be deemed to have been requested by it, and directs
that all proceeds thereof shall be used to pay such
reimbursement obligations under subsection (a) above.
SECTION 3.04. Participations Purchased by the Banks.
(a) On the date of Issuance of each Letter of Credit the Issuing Bank shall be
deemed irrevocably and unconditionally to have sold and transferred to each Bank
without recourse or warranty, and each Bank shall be deemed to have irrevocably
and unconditionally purchased and received from such Issuing Bank, an undivided
interest and participation, to the extent of such Bank's Pro Rata share of such
Letter of Credit and all Total Letter of Credit Liability relating to such
Letter of Credit and all Loan Documents guaranteeing, supporting, or otherwise
benefiting the payment of such Total Letter of Credit Liability. As to each
Letter of Credit Issued or to be Issued by the Issuing Bank, the Agent will
promptly (after it receives notification from the Issuing Bank pursuant to
Section 3.02) notify each Bank of such Letter of Credit of the Borrower, and its
date of Issue, amount, expiry, and reference number.
(b) In the event that any reimbursement obligation under
Section 3.03(a) is not paid when due to the Issuing Bank with respect to any
Letter of Credit, the Issuing Bank shall promptly notify the Agent to that
effect, and the Agent shall promptly notify the Banks of the amount of such
reimbursement obligation and each Bank shall immediately pay to the Issuing
Bank, in lawful money of the United States and in same day funds, an amount
equal to such Bank's Pro Rata share of the amount of such unpaid reimbursement
obligation with interest at the Federal Funds Rate for each day commencing on
the day after such notification until such amount is paid to the Agent.
(c) Promptly after the Issuing Bank receives a payment on
account of a reimbursement obligation with respect to any Letter or Credit, the
Issuing Bank shall pay such amount to the Agent, and the Agent shall promptly
pay to each Bank which funded its participation therein, in lawful money of the
United States and in the kind of funds so received, an amount equal to such
Bank's ratable share thereof.
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(d) Upon request of any Bank, the Agent shall furnish to such
Bank copies of any Letter of Credit and any application and agreement for letter
or credit and other documents related thereto as may be reasonably requested by
such Bank.
(e) The obligation of each Bank to make payments under
subsection (b) above shall be unconditional and irrevocable and shall be made
under all circumstances including, without limitation, any of the circumstances
referred to in Section 3.06(b).
(f) If any payment received on account of any reimbursement
obligation with respect to a Letter of Credit and distributed to a Bank as a
participant under Section 3.04(c) is thereafter recovered from the Issuing Bank
in connection with any bankruptcy or insolvency proceeding relating to any
Borrower, each Bank which received such distribution shall, upon demand by the
Agent, repay to the Issuing Bank such Bank's ratable share of the amount so
recovered together with an amount equal to such Bank's ratable share (according
to the proportion of (i) the amount of such Bank's required repayment to (ii)
the total amount so recovered) of any interest or other amount paid or payable
by the Issuing Bank in respect of the total amount so recovered.
SECTION 3.05. Letter of Credit Fees. (a) The A Borrower hereby
agrees to pay to the Agent for the account of each Bank (ratably in accordance
with its A Commitment) a nonrefundable letter of credit fee with respect to each
Letter of Credit issued for the account of the A Borrower on the maximum amount
available to be drawn under such Letter of Credit from time to time from the
date of Issuance of such Letter of Credit until the expiry or prior termination
thereof at a rate of 3% per annum, payable on each three-month anniversary of
the date of Issuance of such Letter of Credit and on such date of expiry or
prior termination.
(b) Each B Borrower hereby agrees to pay to the Agent for the
account of each Bank (ratably in accordance with its B Commitment) a
nonrefundable letter of credit fee with respect to each Letter of Credit issued
for the account of such B Borrower on the maximum amount available to be drawn
under such Letter of Credit from time to time from the date of Issuance of such
Letter of Credit until the expiry or prior termination thereof at a rate of
1.25% per annum, payable on each three-month anniversary of the date of Issuance
of such Letter of Credit and on such date of expiry or prior termination.
(c) Each Borrower agrees to pay to the Issuing Bank, for its
own account and on demand, (i) a non-refundable fronting fee in respect of each
Letter of Credit issued for the account of such Borrower equal to 0.25% of the
maximum amount to be drawn under such Letter of Credit on the date of Issuance
of such Letter of Credit and payable on such date of Issuance and (ii) sums
equal to standard fees (other than the letter of credit fees referred to in this
Section 3.05(c)), charges and expenses that the Issuing Bank may impose, pay or
incur in connection with the Issuance, amendment, administration, transfer or
cancellation of any or all
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Letters of Credit Issued for the account of such Borrower or in connection with
any payment by the Issuing Bank thereunder.
SECTION 3.06. Indemnification; Nature of the Issuing Bank's
Duties. (a) Each Borrower agrees to indemnify and save harmless the Agent, the
Issuing Bank and each Bank from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
attorneys' fees) which the Agent, the Issuing Bank or any Bank may incur or be
subject to as a consequence, direct or indirect, of (i) the Issuance of any
Letter of Credit Issued for the account of such Borrower or (ii) any action or
proceeding relating to a court order, injunction, or other process or decree
restraining or seeking to restrain the Issuing Bank from paying any amount under
any such Letter of Credit.
(b) The obligations of each Borrower hereunder with respect to
such Letters of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms hereof under all circumstances, including
without limitation, any of the following circumstances:
(i) any lack of validity or enforceability of any
such Letter of Credit or Loan Document or any agreement or
instrument relating thereto;
(ii) the existence of any claim, setoff, defense or
other right which any Borrower may have at any time against
the beneficiary, or any transferee, of any such Letter of
Credit, or the Issuing Bank, any Bank, or any other Person;
(iii) any draft, certificate, or other document
presented under any such Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or
any statement therein being untrue or inaccurate in any
respect;
(iv) any lack of validity, effectiveness, or
sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or
the rights or benefits thereunder or proceeds thereof, in
whole or in part;
(v) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing
under any such Letter of Credit or the proceeds thereof;
(vi) any failure of the beneficiary to any such
Letter of Credit to strictly comply with the conditions
required in order to draw upon any such Letter of Credit;
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(vii) any misapplication by the beneficiary of any
such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or
(viii) any other circumstance or happening
whatsoever, whether or not similar to the foregoing;
provided, however, that notwithstanding the foregoing, neither the Issuing Bank,
the Agent nor any Bank shall be relieved of any liability it may otherwise have
as a result of its gross negligence or willful misconduct.
SECTION 3.07. Increased Costs. (a) Change in Law. If any
change in any law or regulation or in the interpretation thereof by any court or
administrative or governmental authority charged with the administration thereof
shall either (i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against letters of credit issued by the Issuing Bank or
(ii) impose on the Issuing Bank or any Bank any other condition regarding
letters of credit or, in the case of such Bank, its participation hereunder in
Letters of Credit, and the result of any event referred to in the preceding
clause (i) or (ii) shall be to increase the cost to the Issuing Bank of Issuing
or maintaining or, in the case of such Bank, having a participation in Letters
of Credit, then, upon demand by the Issuing Bank or such Bank, as the case may
be, (with a copy to the Agent) the Borrowers shall immediately pay to such
Issuing Bank or such Bank, as the case may be, from time to time as specified by
such Issuing Bank or such Bank, as the case may be, (with a copy to Agent)
additional amounts which shall be sufficient to compensate the Issuing Bank or
such Bank, as the case may be, for such increased cost. Each certificate as to
such increased cost, and amount thereof, incurred by the Issuing Bank or any
Bank as a result of any event mentioned in clause (i) or (ii) above, submitted
by the Issuing Bank or such Bank to each Borrower and the Agent, shall set out
in reasonable detail the calculation of such amounts and shall be conclusive and
binding for all purposes, absent manifest error.
(b) Capital. If the Issuing Bank or any Bank determines that
compliance with any law or regulation or with any guideline or request from any
central bank or other governmental authority (whether or not having the force of
law) has or would have the effect of reducing the rate of return on the capital
of the Issuing Bank or such Bank or any corporation controlling the Issuing Bank
or such Bank as a consequence of, or with reference to, the Issuing Bank's
commitment to Issue, issuance of, or, with respect to such Bank's commitment, to
participate in, any Letter of Credit hereunder below the rate that the Issuing
Bank or such Bank or such other corporation could have achieved but for
compliance therewith (taking into account the policies of the Issuing Bank, such
Bank or such corporation with regard to capital), then the Borrowers shall from
time to time, upon demand by the Issuing Bank or such Bank (with a copy of such
demand to the Agent), immediately pay to the
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Issuing Bank or such Bank additional amounts sufficient to compensate the
Issuing Bank or such Bank or other corporation for such reduction. A certificate
as to such amounts, submitted to each Borrower and the Agent by the Issuing Bank
or such Bank, shall be conclusive and binding for all purposes, absent manifest
error. The Issuing Bank and each Bank agrees promptly to notify the Borrowers
and the Agent of any circumstances that would cause the Borrowers to pay
additional amounts pursuant to this subsection (b), provided, that, the failure
to give such notice shall not affect any Borrower's obligation to pay such
additional amounts hereunder.
(c) Survival of Obligations. Without prejudice to the survival
of any other obligation of the Borrowers hereunder, the agreements and
obligations of each Borrower contained in this Section 3.07 shall survive the
payment in full of the Advances (after the Revolver Termination Date).
SECTION 3.08. Uniform Customs and Practice. The Uniform
Customs and Practice for Documentary Credits as most recently published by the
International Chamber of Commerce shall in all respects be deemed a part of this
Article III as if incorporated herein and shall apply to the Letters of Credit.
ARTICLE IVARTICLE IV
THE GUARANTEE
SECTION 4.01. The Guarantee. The A Borrower (in its capacity
as guarantor being the "Guarantor") hereby unconditionally jointly and severally
guarantees (the "Guarantee") to each of the Banks, the Issuing Bank and the
Agent the payment in full when due (whether at stated maturity, by reason of
acceleration or otherwise) of all obligations (the "Obligations") of the B
Borrowers under this Agreement and the Notes of the B Borrowers, or any document
delivered in connection therewith, including without limitation reimbursement
obligations for payments under Letters of Credit issued for the account of any B
Borrower.
SECTION 4.02. Guaranty Absolute. The Guarantor guarantees that
the Obligations will be paid strictly in accordance with their terms, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Bank, the Issuing Bank and/or
the Agent with respect thereto. The obligations of the Guarantor under this
Guarantee are independent of the Obligations, and a separate action or actions
may be brought and prosecuted against the Guarantor to enforce the Guarantee
irrespective of whether any action is brought against any B Borrower or whether
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any B Borrower is joined in any such action or actions. The liability of the
Guarantor under this Guarantee shall be absolute and unconditional irrespective
of:
(i) any lack of validity or enforceability of this Agreement
or any Note;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from this Agreement,
including any increase in the Obligations resulting from the extension
of additional credit;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the
Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any manner of sale or
other disposition of any collateral for all or any of the Obligations
or any other assets of any B Borrower;
(v) any change, restructuring or termination of the corporate
structure or existence of any B Borrower; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any B Borrower, or any other
guarantor.
This Guarantee shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Obligations is rescinded or must
otherwise be returned by any Bank upon the insolvency, bankruptcy or
reorganization of any B Borrower or otherwise, all as though such payment had
not been made.
SECTION 4.03. Waivers. The Guarantor hereby waives (and
consents in advance to the taking, or the failure to take, any action specified
below), to the fullest extent permitted by applicable law:
(i) any requirement that any Bank, the Issuing Bank or the
Agent secure or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against any B
Borrower or any other person (including any other guarantor) or any
collateral;
(ii) any defense arising by reason of any claim or defense
based upon an election of remedies by any Bank, the Issuing Bank or the
Agent (including, without limitation, an election to non-judicially
foreclose on any real or personal property
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collateral) which in any manner impairs, reduces, releases or otherwise
adversely affects its subrogation, reimbursement or contribution rights
or other rights to proceed against any B Borrower, any other guarantor
or any other Person or any collateral;
(iii) any defense arising by reason of the failure of any
other Person to execute this Agreement or any other agreement or
guaranty;
(iv) any defense or benefits that may be derived from
California Civil Code Sections 2808, 2809, 2810, 2815, 2819, 2845 or
2850 or California Code of Civil Procedure Sections 580a, 580d
(including, without limitation, any defense based on estoppel arising
out of the operation of Section 580d of the California Code of Civil
Procedure in the context of nonjudicial foreclosure or any comparable
provision of the law of any other jurisdiction) or 726, or comparable
provisions of the laws of any other jurisdiction and all other
suretyship and other similar defenses it would otherwise have under the
laws of California or any other jurisdiction;
(v) all rights and defenses arising out of an election of
remedies by any Bank, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed the Guarantor's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of
the California Code of Civil Procedure or otherwise.
(vi) any duty on the part of any Bank, the Issuing Bank or the
Agent to disclose to the Guarantor any matter, fact or thing relating
to the business, operation or condition of any B Borrower and its
assets now known or hereafter known by such Bank, the Issuing Bank or
the Agent;
(vii) all benefits of any statute of limitations affecting the
Guarantor's liability under this Guarantee or affecting the enforcement
of this Guarantee or any of the Obligations or realization on any
collateral for the Obligations;
(viii) all setoffs and counterclaims;
(ix) promptness, diligence, presentment, demand for
performance and protest;
(x) notice of non-performance, default, acceleration, protest
or dishonor;
(xi) except for any notice otherwise required by applicable
laws that may not be effectively waived by the Guarantor (all of which
are hereby waived to the fullest
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extent permitted by law), notice of sale or other disposition of any
collateral for the Obligations; and
(xii) notice of acceptance of this Guarantee and of the
existence, creation or incurring of new or additional Obligations.
SECTION 4.04. Waiver of Subrogation. Until the Obligations are
paid in full, Guarantor hereby irrevocably waives any claim or other rights
(including, without limitation, any rights arising under California Civil Code
Sections 2847, 2848 or 2849) that it may now or hereafter acquire against any B
Borrower that arise from the existence, payment, performance or enforcement of
the Guarantor's obligations under this Guarantee, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification by or from any B Borrower and any right to participate in any
claim or remedy of any Bank against any B Borrower or any collateral for the
Obligations, whether or not such claim, remedy or right arises in equity or
under contract, statute or common law, including, without limitation, the right
to take or receive from any B Borrower, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right. If any amount shall be paid to the Guarantor in
violation of the preceding sentence at any time prior to the later of (x) the
payment in full in cash of the Obligations and all other amounts payable under
this Guarantee and (y) the expiration or termination of any commitment of any
Bank to extend credit under any this Agreement, such amount shall be held in
trust for the benefit of the Agent and the Banks and shall forthwith be paid to
the Agent to be credited and applied to the Obligations and all other amounts
payable under this Guarantee, whether matured or unmatured, or to be held as
collateral for any Obligations or other amounts payable under this Guarantee
thereafter arising. The Guarantor acknowledges that it will receive direct and
indirect benefits from the transactions provided for in this Agreement, and that
the waiver set forth in this Section 4.04 is knowingly made in contemplation of
such benefits.
SECTION 4.05 Financial Condition of B Borrowers. The Guarantor
represents to each Bank, the Issuing Bank and the Agent that the Guarantor is
now and will be completely familiar with the business, operations and conditions
of the B Borrowers, and the Guarantor hereby waives and relinquishes any duty on
the part of any Bank, the Issuing Bank or the Agent to disclose any matter, fact
or thing relating to the business, operations or conditions of the B Borrowers
now known or hereafter known by such Bank, the Issuing Bank or the Agent.
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ARTICLE VARTICLE V
CONDITIONS OF LENDING
SECTION 5.01. Condition Precedent to Initial Advances and
Letters of Credit. The obligation of each Bank to make its initial Advance, the
Issuing Bank to issue the initial Letter of Credit and the Agent to make its
initial Swing Line Advance is subject to the conditions precedent that (x) the
Borrowers shall have paid the fees referred to in Section 2.04 that are due and
payable on such day, (y) INMAC B.V. shall have sold notes under the Prudential
Agreement in the principal amounts of $13,000,000 and Dfl. 10,918,600 with the
net proceeds thereof to be not less than $13,000,000 and Dfl. 10,918,600 and
with the terms and conditions thereof to be satisfactory to the Majority Banks,
and (z) the Agent shall have received on or before the day of the initial
Borrowing, Letter of Credit or Swing-Line Advance, as the case may be, the
following, each dated such day, in form and substance satisfactory to the Agent
and (except for the Notes) in sufficient copies for each Bank:
(a) The Notes to the order of the Banks, respectively.
(b) Certified copies and certified English translations (if
appropriate) of the resolutions of the Board of Directors of each
Borrower approving each Loan Document to which it is a party, and of
all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to each such Loan
Document.
(c) A signed copy and a certified English translation (if
appropriate) of a certificate of an appropriate officer or director of
each Borrower certifying the names and true signatures of the officers
of such Borrower authorized to sign each Loan Document to which it is a
party and the other documents to be delivered hereunder.
(d) A favorable opinion of Xxxxx & XxXxxxxx, counsel for the A
Borrower and special U.S. counsel for each B Borrower, substantially in
the form of Exhibit C hereto and as to such other matters as any Bank
through the Agent may reasonably request.
(e) A favorable opinion of counsel for each B Borrower,
substantially in the form of Exhibit D-1 through Exhibit D-5 hereof,
respectively, and as to such other matters as any Bank through the
Agent may reasonably request.
SECTION 5.02. Conditions Precedent to Each Borrowing and
Letter of Credit. The obligation of each Bank to make an Advance on the occasion
of each Borrowing (including the initial Borrowing), of the Agent to make each
Swing-Line Advance (including the initial Swing-Line Advance) and of the Issuing
Bank to Issue each Letter of Credit
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(including the initial Letter of Credit) shall be subject to the further
conditions precedent that on the date of such Borrowing, Advance or Issuance, as
the case may be, (a) the following statements shall be true and each of the
giving of the applicable Notice of Borrowing and the acceptance by the Borrower
of the proceeds of such Borrowing, the applicable notice of a Swing-Line Advance
and the acceptance of the proceeds thereof or the applicable notice to request
the Issuance of Letter of Credit, as the case may be, shall constitute a
representation and warranty by each Borrower that on the date of such Advance,
Swing-Line Advance or Issuance, respectively, such statements are true:
(i) The representations and warranties contained in Article VI
of this Agreement are correct on and as of such date, before and after
giving effect to such transaction, as though made on and as of such
date, and
(ii) No event has occurred and is continuing, or would result
from such transaction or from the application of the proceeds
therefrom, which constitutes an Event of Default or would constitute an
Event of Default but for the requirement that notice be given or time
elapse or both;
and (b) the Agent shall have received such other approvals, opinions or
documents as the Agent may reasonably request.
ARTICLE VIARTICLE VI
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to enter this Agreement and to
make Advances, the Agent to make Swing-Line Advances and the Issuing Bank to
Issue Letters of Credit hereunder, each Borrower represents and warrants as
follows:
SECTION 6.01. Corporate Status. Each Borrower and each of its
Subsidiaries is a duly organized and validly existing corporation in good
standing under the laws of its jurisdiction of organization. Each Borrower and
each of its Subsidiaries (i) has the power and authority to own its property and
assets and to transact the business in which it is engaged, and (ii) is duly
qualified as a foreign corporation and in good standing in each jurisdiction
where it owns or leases real property and in which failure to be duly qualified
and in good standing would have a material adverse effect on the business
operations, property or financial or other condition of such Borrower or
Subsidiary taken as a whole.
SECTION 6.02. Corporate Power and Authority. The execution,
delivery and performance by each Borrower of each Loan Document to which it is
or will be a party are
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within such Borrower's corporate powers, have been duly authorized by all
necessary corporate action, require no authorization, approval or other action
by or in respect of, or filing with, any governmental body, agency or official
and do not contravene, or constitute a default under any provision of applicable
law or regulation or of the charter or by-laws of such Borrower or of any
agreement, indenture or instrument evidencing Debt or other material instrument
binding upon such Borrower or result in the creation or imposition of any Lien
on the property or assets of such Borrower.
SECTION 6.03. Binding Effect. This Agreement and the Note
executed by each Borrower is the legal, valid and binding obligation of such
Borrower and is enforceable against such Borrower in accordance with its terms.
SECTION 6.04. Financial Information. (a) The Consolidated
balance sheet of the A Borrower as of April 30, 1995 and the related
Consolidated statements of earnings, shareholders' equity and changes in the
financial position of the A Borrower for the nine month period then ended,
copies of which have been furnished to the Agent, fairly present, in conformity
with GAAP, the Consolidated financial position of the A Borrower as of such date
and its Consolidated results of operations.
(b) Since April 30, 1995 and up to and including the date
hereof, there has been no material adverse change in the business, financial
position, results of operations or prospects of the A Borrower and its
Subsidiaries taken as a whole.
SECTION 6.05. Litigation. Except as disclosed to the Agent in
writing, there is no action, suit or proceeding pending against or, to the
knowledge of any Borrower, threatened against or affecting, any Borrower or any
Subsidiary thereof before any court or arbitrator or any governmental body,
agency or official, which might result in (a) a material adverse effect on the
business, operations, property, assets, condition (financial or otherwise) or
prospects of the Borrowers and their Subsidiaries, taken as a whole, of (b) the
material impairment of the ability of any Borrower to perform any of its
obligations hereunder or the legality, validity or enforceability of this
Agreement or any Note.
SECTION 6.06. Not an Investment Company. No Borrower or
Subsidiary thereof is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
SECTION 6.07. Compliance With Laws. Except as disclosed on
Schedule V hereto, the A Borrower and its Subsidiaries (i) have complied in all
material respects with all applicable laws, statutes, rules and regulations,
including environmental laws, and neither the A Borrower nor any Subsidiary has
received (A) notice of any material failure so to comply or (B) any information
that would lead it to believe that it is the subject of any Federal, state,
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local or foreign investigation; (ii) does not manage, generate, transport,
discharge or store any hazardous materials in material violation of any material
environmental laws; (iii) does not own, operate or maintain any underground
storage tanks or surface impoundments; and (iv) is not aware or any conditions
or circumstances associated with its currently or previously owned or leased
properties or operations (or those of its tenants), in each case which may give
rise to any material liability, fines, penalties or other obligations.
SECTION 6.08. Taxes. Each of the Borrowers and each Subsidiary
thereof has filed all tax returns and reports required to be filed by it and has
paid all taxes shown due on the returns so filed as well as all other material
taxes, assessments and governmental charges which have become due except for
those which each such Borrower or Subsidiary is contesting in good faith and has
disclosed to the Agent. The charges, accruals and reserves on the books of each
such Borrower and Subsidiary in respect of taxes or other governmental charges
are provided in accordance with GAAP.
SECTION 6.09. Full Disclosure. All information heretofore
furnished by each Borrower to the Agent for the purposes of or in connection
with this Agreement or any transaction contemplated hereby or thereby is, and
all such information hereafter furnished by such Borrower to the Agent will be,
true, accurate and complete in every material respect on the date as of which
such information is stated or certified and does not or will not, as the case
may be, omit any material fact necessary to make such information not
misleading.
ARTICLE VIIARTICLE VII
COVENANTS OF THE BORROWERS
SECTION 7.01. Affirmative Covenants So long as any Note shall
remain unpaid, any Letter of Credit shall remain outstanding, any amount shall
remain due hereunder, or any Bank shall have any Commitment hereunder, each
Borrower covenants and agrees, unless the Majority Banks otherwise consent in
writing, that:
(a) Information. The Borrowers shall deliver to the Agent:
(i) as soon as available and in any event within 90
days after the end of each fiscal year of the A Borrower, a
Consolidated balance sheet of the A Borrower as of the end of
such fiscal year and related statements of earnings,
shareholders' equity and cash flow for such fiscal year;
setting forth in each case in comparative form the figures for
the preceding fiscal year, all reported in compliance with
GAAP consistently applied and certified as accurate and true
by the chief financial officer of the A Borrower; and in the
case of Consolidated
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annual statements certified as provided in the A Borrower's
10-K filed with the Securities Exchange Commission by a
nationally recognized public accounting firm, together with a
certificate of such accounting firm stating that in the course
of the regular audit of the business of the A Borrower, which
audit was conducted in accordance with GAAP, such accounting
firm has obtained no knowledge that an Event of Default has
occurred and is continuing, or, if in the opinion of such
accounting firm, an Event of Default has occurred and is
continuing, a statement as to the nature thereof and a copy of
the management letter from such accounting firm accompanying
such financing statements;
(ii) as soon as available and in any event within 45
days after the end of the first three fiscal quarters of the A
Borrower, a Consolidated balance sheet for the A Borrower as
of the end of such quarter, the related statements of earnings
for such quarter, and the related statements of shareholders'
equity and cash flows for the portion of the A Borrower's
fiscal year ended at the end of such quarter prepared in
accordance with GAAP consistently applied and certified by the
A Borrower's chief financial officer, setting forth in each
case in comparative form the figures for the corresponding
previous year end, in the case of such balance sheet and
statement of shareholders' equity, and for the corresponding
portion of the A Borrower's previous fiscal year, in the case
of such statements of earnings, together with unaudited
statements of operations of revenues and gross profits by
product segment;
(iii) simultaneously with the delivery of each set of
financial statements referred to in clauses (i) and (ii) above
(the "Financial Statement"), a certificate of the A Borrower's
chief financial officer (i) setting forth in reasonable detail
the calculations required to establish whether the Borrowers
were in compliance with the applicable financial covenants set
forth in Section 7.03 and 7.04 hereof, as the case may be, and
(ii) stating that on the date of such certificate there is no
Event of Default or Default, or if any such Event of Default
or Default has occurred and is continuing, a statement as to
the nature thereof and the remedial action which the Borrowers
propose to take with respect thereto;
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(iv) as soon as available and in any event within 45
days after the end of each quarter, a Consolidating balance
sheet for the A Borrower as of the end of such quarter and the
related Consolidating statement of earnings for such quarter;
(v) promptly upon the filing thereof, copies of any
registration statements and annual, quarterly or monthly
reports which the A Borrower shall have filed with the
Securities and Exchange Commission;
(vi) if and when the A Borrower or any Subsidiary
thereof or any plan administrator gives or is required to give
notice to the PBGC of any "reportable event" (as defined in
section 4043 of ERISA) with respect to any Plan which is not a
Multi-employer Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or with
respect to any Multi-employer Plan, receives notice as
prescribed in ERISA of any material withdrawal liability
assessed against the A Borrower or any such Subsidiary, a copy
of such notice;
(vii) promptly after receipt thereof, a copy of each
report delivered to the A Borrower by any independent
accounting firm in connection with any annual, interim or
special audit of the A Borrower;
(viii) not later than each September 30, in the case
of the A Borrower, deliver a certificate reflecting projected
compliance with the covenants contained in Sections 7.03 and
7.04 for each of the four fiscal quarters in the fiscal year
ending on the succeeding July 31;
(ix) as may reasonably be requested by the Agent or
any Bank from time to time, a copy of each report or statement
delivered by any Borrower pursuant to the Prudential Agreement
except reports as to compliance with particular provisions of
such Agreement;
(x) as soon as possible and in any event within five
days after any Borrower learns of the occurrence of an Event
of Default, a statement by such Borrower's chief financial
officer setting forth the details of such Event of Default and
the remedial action which any Borrower proposes to take with
respect thereto; provided, however, that no such statement
need be furnished if the Event of Default is cured by the date
on which such statement is due;
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(xi) such additional financial information, including
the books and records of such Borrower, as the Agent or any
Bank may reasonably request in writing to be provided by such
Borrower as soon as reasonably possible.
(b) Payment of Taxes, Etc. Each Borrower shall pay and
discharge, and cause each Subsidiary thereof to pay and discharge,
before the same shall become delinquent, (i) all taxes, assessment and
governmental charges or levies imposed upon it or upon its property,
and (ii) all lawful claims which, if unpaid, might by law become a Lien
upon its property; provided, however, that neither such Borrower nor
any Subsidiary thereof shall be required to pay or discharge any such
tax, assessment, charge or claim which is being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained.
(c) Equal and Ratable Liens. In the event that any Borrower
grants a Lien (other than Permitted Liens) on any of its property, such
Borrower shall at the same time xxxxx x Xxxx of equal priority on such
property to the Agent, for the benefit of the Banks, to secure such
Borrower's obligations hereunder and, in connection therewith, shall
execute such documents as the Agent reasonably requests.
(d) Maintenance of Property; Insurance. Each Borrower shall,
and cause each of its Subsidiaries to (i) maintain or cause to be
maintained in good repair, working order and condition all equipment
and other properties necessary at that time in its business and that
are material to the conduct of its business taken as a whole and from
time to time will make or cause to be made all appropriate repairs,
renewals and replacements thereof; (ii) comply with all applicable
laws, rules, regulations and orders of all Federal, state, local or
foreign courts or governmental agencies, authorities, instrumentalities
or regulatory bodies; except where such noncompliance could not
reasonably be expected to result in material adverse effect or to the
extent that such compliance is subject to a good faith contest; and
(iii) maintain insurance in such amounts and against such liabilities
and hazards as is, to the best of its knowledge, customarily maintained
by other companies operating similar businesses.
(e) Preservation of Corporate Existence. Each Borrower shall
continue, and cause each of its Subsidiaries to continue, to engage in
business of the same general type as now conducted by such Borrower or
Subsidiary, as the case may be, and will preserve, renew and keep in
full force and effect its corporate existence and its material rights,
privileges and franchises necessary or desirable in the normal conduct
of business; provided, however, that this Section 7.01(e) shall not
prevent any transaction permitted by Section 7.02(b); provided,
further, that, except as provided in Section 7.02(b)(ii)(A), the A
Borrower will at all times own directly or indirectly 100% of the
voting stock of each of its Subsidiaries on the date hereof; and,
provided, further, that
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this Section 7.01(e) shall not prevent any transfer by the A Borrower
in a single transaction or a series of related transactions within a
six month period of substantially all of its assets (other than its
rights to the name "INMAC" and its right to receive royalty payments
from its Subsidiaries) to a Subsidiary formed under the laws of any
state of the United States that is not an Exempt Subsidiary which,
prior to any such transfer, has assumed all of the obligations of the A
Borrower hereunder.
(f) Royalty Arrangements. In the case of each Borrower,
maintain royalty arrangements between the A Borrower and the respective
B Borrower on terms no less favorable to the A Borrower than exist on
the Closing Date and as are set forth in Schedule III hereof, except
changes to such terms to the extent needed to be in minimal compliance
with requirements of law; provided, however,that in no event shall such
changes terminate or reduce the minimum royalty payment to the A
Borrower.
(g) Compliance With Laws. Each Borrower shall comply, and
cause each of its Subsidiaries to comply, in all material respects with
all applicable material laws, ordinances, rules, regulations and
requirements of governmental authorities (including, without
limitation, ERISA and the rules and regulations thereunder) except
where the necessity of compliance therewith is contested in good faith
by appropriate proceedings.
(h) Visitation Rights. Each Borrower shall permit, and cause
each of its Subsidiaries to permit, the Agent and any Bank, or any
agents or representatives thereof, at any reasonable time and from time
to time after notice, to examine and make copies of and abstracts from
the records and books of account of, and visit the properties of, such
Borrower and/or any Subsidiary, as the case may be, and to discuss the
affairs, finances and accounts of such Borrower or Subsidiary, as the
case may be, with any of their officers or directors and with their
independent certified public accountants.
(i) Maintenance of Books, Property and Records. Each Borrower
shall keep, and cause each of its Subsidiaries to keep, proper books of
records and account in which full, true and correct entries in
conformity with GAAP shall be made of all dealings and transactions in
relation to its business and activities and will permit the Agent and
any Bank, and any agents or representatives thereof, to discuss the
affairs, finances and accounts of such Borrower or Subsidiary, as the
case may be, with its officers, employees and independent public
accountants, at such reasonable times and as often as may be reasonably
desired. Each of the Agent and the Banks will use reasonable efforts,
consistent with its normal business practices, to maintain the
confidentiality of any information so received.
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(j) Currency Protection Agreements. Each Borrower shall
maintain, and cause each of its Subsidiaries to maintain, substantially
similar currency risk protection arrangements as in effect on the
Closing Date, provided that none of such arrangements are speculative.
SECTION 7.02. Negative Covenants. So long as any Note shall
remain unpaid, any Letter of Credit shall remain outstanding, any amount shall
remain due hereunder, or any Bank shall have any Commitment hereunder, each
Borrower covenants and agrees, unless the Majority Banks otherwise consent in
writing, that:
(a) Liens, Etc. No Borrower shall create or suffer to exist,
or permit any of its Subsidiaries to create or suffer to exist, any
Lien, upon or with respect to any of its properties, whether now owned
or hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income, other than Permitted Liens,
provided that Permitted Liens in no event shall include any Lien on the
stock of any direct or indirect Subsidiary of the A Borrower.
(b) Consolidations and Mergers. No Borrower shall at any time,
nor shall it permit any of its Subsidiaries to, at any time merge or
consolidate with another Person or sell, lease, transfer or otherwise
dispose of assets, except that:
(i) any Subsidiary of the A Borrower may merge
or consolidate with or into the A Borrower;
provided that the A Borrower is the
continuing or surviving corporation,
(ii) any Subsidiary of the A Borrower may merge
or consolidate with or into a directly or
indirectly wholly-owned Subsidiary of the A
Borrower (other than an Exempt Subsidiary)
that is organized and domiciled either in
the United States or in the country of such
merged or consolidated Subsidiary;
(iii) any Subsidiary of the A Borrower may merge
or consolidate with any other corporation
other than the A Borrower or a directly or
indirectly wholly-owned Subsidiary of the A
Borrower, provided that, immediately after
giving effect -------- to such merger or
consolidation (a) in the case of a merger or
consolidation involving a Subsidiary of the
A Borrower, a directly or indirectly
wholly-owned U.S. Subsidiary of the A
Borrower or a directly or indirectly
wholly-owned Subsidiary of the A Borrower
organized under the laws of the country of
such merged or consolidated Subsidiary is
the continuing or surviving corporation and
(b) no
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Default or Event of Default exists or would
exist before or after giving effect to such
merger or consolidation;
(iv) any Subsidiary may transfer assets to the A
Borrower or a direct or indirect
wholly-owned Subsidiary of the A Borrower
(other than an Exempt Subsidiary) that is
organized and domiciled either in the United
States or in the country of the transferring
Subsidiary;
(v) any Borrower or any Subsidiary thereof may
sell inventory in the ordinary course of
business or may transfer trade receivables
to the extent permitted by Section 7.02(g);
(vi) any Borrower or any Subsidiary thereof may
transfer assets that, in its good faith,
reasonable judgment, have no further useful
or productive capacity, are fully used or
depreciated, are obsolete or are no longer
necessary or productive in the ordinary
course of its business;
(vii) any Borrower or any Subsidiary thereof may
otherwise transfer assets, provided that
after giving effect thereto (A) neither the
Annual Percentage of Tangible Assets
Transferred nor the Annual Percentage of
Earnings Capacity Transferred pursuant to
this clause (vii) shall exceed 5% and (B)
neither the Cumulative Percentage of
Tangible Assets Transferred nor the
Cumulative Percentage of Earnings Capacity
Transferred pursuant to this clause (vii)
shall exceed 20%, assuming, for purposes of
this clause (vii), that calculations are
made with respect to the Borrowers and their
Subsidiaries only on a Consolidated basis.
For purposes of determining compliance with
the provisions of this Section, transfers of
assets described in clause (iv) - (vi) above
shall not be included in making the
calculations required for the percentage
limitations set forth in clause (vii) above.
(c) Debt. Neither the A Borrower nor any of its Subsidiaries
shall incur, assume, or suffer to exist any Debt except:
(i) the Notes and other obligations thereunder;
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(ii) obligations under the Prudential Agreement
and the guarantees delivered in connection
therewith;
(iii) overdraft facilities of the A Borrower and
any Subsidiary thereof, provided the
outstanding principal amount of such
facilities is not in excess of $500,000 for
either the A Borrower or any Subsidiary
thereof and, provided, further, that the
outstanding principal amount of all such
facilities in the aggregate is not in excess
of $2,500,000;
(iv) Capitalized Leases Obligations in an
aggregate principal amount not in excess of
$10,000,000;
(v) in the case of Exempt Subsidiaries, Debt to
the Borrowers in an aggregate outstanding
principal amount (when combined with the
aggregate outstanding amount of investments
in Exempt Subsidiaries after the Closing
Date by the Borrowers) not in excess of
$5,000,000 and other Debt in an aggregate
outstanding principal amount not in excess
of $3,000,000;
(vi) in the case of any Subsidiary of the A
Borrower (other than an Exempt Subsidiary)
Debt owed to any wholly-owned Subsidiary of
the Borrower or to the A Borrower or in the
case of the A Borrower, Debt owed to any
Subsidiary thereof; and
(vii) in the case of the Borrowers, other than as
described in the preceding clauses (i)
through (vi) of this paragraph (c), (A)
INMAC GMBH may maintain until September 15,
1995 not more than 7,500,000DM of Debt with
Barclays Bank plc and 3,500,000DM of Debt
with National Westminster Bank plc; (B)
INMAC AB may maintain until September 15,
1995 not more than SEK 5,100,000 of Debt
with Barclays Bank plc; (C) INMAC B.V. may
maintain until September 15, 1995 not more
than Dfl.3,882,000 of Debt with Midland Bank
plc; (D) INMAC Corp. may maintain until July
25, 1995 not more than Y456,800,000 and
$3,860,000 of Debt with ABN AMRO Bank N.V.;
and (E) Debt in an aggregate outstanding
principal amount not in excess of $5,000,000
for all B Borrowers, provided that the
amount of such Debt of any individual
Borrower shall not be in outstanding
principal amount in excess of $2,000,000.
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(d) Restricted Payments.
(i) The A Borrower shall not permit any of its
Subsidiaries to incur or permit to exist any restriction on
such Subsidiary's ability to make Restricted Payments to such
Borrower or the Subsidiaries of such Borrower or to otherwise
transfer earnings or assets to such Borrower or the
Subsidiaries of such Borrower.
(ii) The A Borrower shall not at any time make, pay
or declare any Restricted Payments in excess of 25% (or minus
100% in the case of losses) of cumulative Consolidated Net
Income of the A Borrower for the period from the quarter
beginning July 31,1995 to the date of such payment or
declaration.
(e) Limitation on Sales and Leasebacks. No Borrower shall, nor
shall it permit any of its Subsidiaries to, at any time enter into any
contract for the sale and leaseback of property if the net proceeds of
such sale, together with the net proceeds of all prior such sales
during the term of this Agreement, exceeds $5,000,000; provided that in
all cases such sales are subject to, and permitted by subsection (b) of
this Section 7.02 and the resulting lease obligation is subject to, and
permitted by, subsection (g) of Section 7.04.
(f) Transactions with Affiliates. No Borrower shall, nor shall
it permit any of its Subsidiaries to, at any time enter into or
consummate any transactions with Affiliates or shareholders or other
related entities on terms other than such terms that could be obtained
on an arms-length basis from unaffiliated third-parties.
(g) Trade Receivables. No Borrower shall, nor shall it permit
any of its Subsidiaries to, at any time sell or discount trade
receivables with recourse, or discount or otherwise sell receivables
for less than their face value, except (i) as is customary in countries
other than the United States and as described in writing provided prior
to the Closing Date and is acceptable to the Majority Banks, (ii) sales
without recourse of receivables, the collection of which is doubtful in
accordance with GAAP, and (iii) sales between the Borrowers.
(h) Permitted Investments. No Borrower shall, nor shall it
permit any of its Subsidiaries to, at any time make or permit to remain
outstanding any loans, advances or investments except Permitted
Investments.
SECTION 7.03 Financial Covenants of the A Borrower. So long as
any Note of the A Borrower shall remain
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unpaid or any A Letter of Credit Liability shall remain outstanding, the A
Borrower covenants and agrees, unless the Majority Banks otherwise consent in
writing, that:
(a) Tangible Net Worth. It shall maintain Tangible Net Worth
determined at the end of each fiscal quarter of not less than the sum
of $20,000,000 plus 75% of its positive Net Income for the period from
the fiscal quarter subsequent to the Closing Date to the date of
determination plus 75% of the aggregate amount of all equity
contributions (exclusive of purchases not in excess of $1,000,000
pursuant to employee stock programs) to the A Borrower during the
period from the Closing Date to the date of determination.
(b) Debt Ratio. It shall not permit its Debt Ratio determined
at the end of each fiscal quarter to exceed 0.4:1.
(c) Profitability. It shall not permit its Net Losses to
exceed its Net Income on a Consolidated basis by more than $1,000,000
for any two consecutive fiscal quarters.
(d) Net Worth of INMAC S.A. It shall take all necessary action
so that the "Net Worth" (as defined in Section 10.06(b)(ii) hereof) of
INMAC S.A. shall not be less than, at any time, $22,000,000 through the
Revolver Termination Date.
SECTION 7.04. Financial Covenants of the Borrowers. So long as
any Note shall remain unpaid, any Letter of Credit Liability shall remain
outstanding, any amount shall remain due hereunder, or any Bank shall have any
Commitment hereunder, each Borrower covenants and agrees, unless the Majority
Banks otherwise consent in writing, that:
(a) Consolidated Tangible Net Worth. It shall cause the A
Borrower to maintain a Consolidated Tangible Net Worth determined at
the end of each fiscal quarter of not less than the sum of $32,000,000
plus 75% of cumulative positive Consolidated Net Income of the A
Borrower for the period from the fiscal quarter subsequent to the
Closing Date to the date of determination plus 75% of the aggregate
amount of all equity contributions (exclusive of purchases not in
excess of $1,000,000 pursuant to employee stock programs) to the A
Borrower during the period after July 30,1994 to the date of
determination.
(b) Consolidated Debt Ratio. It shall not permit the A
Borrower's Consolidated Debt Ratio determined at the end of each fiscal
quarter to exceed 0.45:1.
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(c) Consolidated Profitability. It shall not permit the A
Borrower's Net Losses to exceed its Net Income on a Consolidated basis
for any two consecutive fiscal quarters.
(d) Capital Expenditures. The aggregate Capital Expenditures
in any fiscal year for all Borrowers shall not exceed $10,000,000.
(e) Consolidated Current Ratio. It shall cause the A Borrower
to maintain a Consolidated Current Ratio, determined at the end of each
fiscal quarter, of not less than 1.25:1.
(f) Consolidated Quick Ratio. It shall cause the A Borrower to
maintain a Consolidated Quick Ratio, determined at the end of each
fiscal quarter, of not less than 0.55:1.
(g) Consolidated Fixed Charge Ratio. It shall cause the A
Borrower to maintain a Consolidated Fixed Charge Ratio determined for
each fiscal quarter of not less than 2:1 on the last day of such fiscal
quarter.
ARTICLE VIII
EVENTS OF DEFAULT
SECTION 8.01 Events of Default. If any of the following events
("Events of Default") shall have occurred and be continuing:
(a) any Borrower shall fail to pay when due any principal of
any Advance or Swing-Line Advance or any reimbursement obligation under
any Letter of Credit; or shall fail to pay any interest on any Advance
or Swing-Line Advance or any fees or other amounts payable under any
Loan Document within five Business Days after the same becomes due and
payable; or
(b) any Borrower shall fail to observe or perform any covenant
contained in subsection (e) of Section 7.01 and Section 7.02, 7.03 and
7.04 hereof; or
(c) any representation, warranty, certification or statement
made by any Borrower (or any of its officers) in any Loan Document or
certificate, financial statement or other writing delivered pursuant
thereto shall prove to have been incorrect in any material respect when
made or deemed made; or
X-00
00
(x) any Borrower shall fail to observe or perform any covenant
or agreement contained in any Loan Document (other than those covered
by clause (a) or (b) above) for thirty days after written notice
thereof has been given to such Borrower by the Agent or any Bank; or
(e) any Borrower or any Subsidiary thereof shall fail to make
any payment in respect of Debt for borrowed money in excess of
$1,000,000 (other than Debt hereunder but including Debt under the
Prudential Agreement) when due (after giving effect to any applicable
grace period) whether such Debt shall become due by scheduled maturity,
by required prepayment, by acceleration, by demand or otherwise; or any
Borrower or Subsidiary thereof shall fail to perform beyond any period
of grace with respect thereto any term, covenant or agreement on its
part to be performed under any agreement or instrument (other than the
Loan Documents) evidencing or securing or relating to such Debt by such
Borrower or Subsidiary thereof when required to be performed, if the
effect of such failure is to accelerate (or permit the acceleration of)
the maturity thereof; or
(f) any Borrower shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with
respect to itself or its Debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment
of a trustee, receiver, liquidator, custodian or other similar official
of it or any substantial part of its property, or shall consent to any
such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against
it, or shall make a general assignment for the benefit of creditors, or
shall fail generally to pay its Debts as they become due, or shall take
any corporate action to authorize any of the foregoing; or
(g) an involuntary case or other proceeding shall be commenced
against any Borrower seeking liquidation, reorganization or other
relief with respect to it or its Debts under any bankruptcy, insolvency
or other similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or other
similar official of it or any substantial part of its property, and
such involuntary case or other proceeding shall remain undismissed and
unstayed for a period of 60 days; or an order for relief shall be
entered against any Borrower under the Bankruptcy Code or similar law
under its jurisdiction of formation; or
(h) a judgment or order for the payment of money in excess of
$3,000,000 shall be rendered against any Borrower or any Subsidiary
thereof and such judgment or order shall continue unsatisfied and
unstayed for a period of 60 days; or
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(i) the A Borrower shall fail to pay when due any material
amount which is either uncontested or, if contested, the subject of a
final nonappealable decision and which it shall have become liable to
pay to the PBGC or to a Plan under Title IV of ERISA; or the PBGC shall
institute proceedings under Title IV of ERISA to terminate or to cause
a trustee to be appointed to administer any Plan or Plans, which
proceedings involve a significant likelihood of an outcome which will
materially adversely affect the ability of the A Borrower to perform
its obligations under any Loan Document; or the A Borrower shall fail
to pay when due any material withdrawal liability with respect to any
Multi-employer Plan which is uncontested or, if contested, is the
subject of a final nonappealable decision and the A Borrower fails to
discharge, satisfy or otherwise eliminate such liability with respect
to any Multiemployer Plan within the time required by the judgment;
(m) any provision of the Guarantee after delivery shall for
any reason cease to be valid and binding on the Guarantor, or the
Guarantor shall so state in writing;
then, and in any such event, the Agent (i) shall at the request, or may with the
consent, of the Majority Banks, by notice to each Borrower, declare the
obligation of each Bank to make Advances, the obligation of the Agent to make
Swing-Line Advances and the obligation of the Issuing Bank to Issue Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, (ii)
shall at the request, or may with the consent, of the Majority Banks, by notice
to each Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable, whereupon the
Notes, all such interest and all such amounts shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by each Borrower, (iii) shall at the
request, or may with the consent, of the Majority Banks demand that each
Borrower, and if such demand is made each Borrower shall, pay to the Agent for
the benefit of the Issuing Bank, an amount in immediately available funds equal
to its share of the then outstanding Total Letter of Credit Liability which
shall be held by the Agent (or the Issuing Bank) as cash collateral in a cash
collateral account under the exclusive control and dominion of the Agent (or the
Issuing Bank) and applied to the reduction of such Borrower's share of the Total
Letter of Credit Liability as drawings are made on outstanding Letters of
Credit, and (iv) shall at the request, or may with the consent, of the Majority
Banks exercise any other remedies provided hereunder or by law; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to any Borrower or any of its Subsidiaries under the Federal
Bankruptcy Code or similar law under such Borrower's or Subsidiary's
jurisdiction of formation, (A) the obligation of each Bank to make Advances, of
the Agent to make Swing-Line Advances and of the Issuing Bank to Issue Letters
of Credit shall automatically be terminated and (B) the Notes, all such interest
and all such amounts shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by each Borrower.
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ARTICLE IX
THE AGENT
SECTION 9.01. Authorization and Action. Each Bank and the
Issuing Bank hereby appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. As to any matters not expressly provided for by
this Agreement (including, without limitation, enforcement or collection of the
Notes), the Agent shall not be required to exercise any discretion or take any
action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
Majority Banks, and such instructions shall be binding upon all Banks, the
Issuing Bank and all holders of Notes; provided, however, that the Agent shall
not be required to take any action which exposes the Agent to personal liability
or which is contrary to this Agreement or applicable law. The Agent agrees to
give to each Bank and the Issuing Bank prompt notice of each notice given to it
by the Borrower pursuant to the terms of this Agreement.
SECTION 9.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with this
Agreement, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Agent: (i) may treat
the payee of any Note as the holder thereof and treat the Banks that purchased
or funded a participation with respect to a Letter of Credit as the holder or
owner of Debt resulting therefrom until the Agent receives written notice of the
assignment or transfer thereof signed by such payee and including the agreement
of the assignee or transferee to be bound hereby as it would have been if it had
been an original Bank party hereto, in form satisfactory to the Agent; (ii) may
consult with legal counsel (including counsel for any Borrower), independent
public accountants and other experts selected by it and shall not be liable for
any action taken or omitted to be taken in good faith by it in accordance with
the advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for any
statements, warranties or representations (whether written or oral) made in or
in connection with any Loan Document; (iv) shall not have any duty to ascertain
or to inquire as to the performance or observance of any of the terms, covenants
or conditions of any Loan Document on the part of any Borrower or any Subsidiary
thereof or to inspect the property (including the books and records) of such
Borrower or Subsidiary thereof; (v) shall not be responsible to any Bank for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument or document furnished
pursuant hereto; and (vi) shall incur no liability
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under or in respect of any Loan Document by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopier) believed
by it to be genuine and signed or sent by the proper party or parties.
SECTION 9.03. ABN AMRO Bank N.V. and its Affiliates. With
respect to its Commitment, the Advances made by it, the Note issued to it and
the participations in Letters of Credit purchased by it, ABN AMRO Bank N.V.
shall have the same rights and powers under this Agreement as any other Bank and
may exercise the same as though it were not the Agent; and the term "Bank" or
"Banks" shall, unless otherwise expressly indicated, include ABN AMRO Bank N.V.
in its individual capacity. ABN AMRO Bank N.V. and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, and generally
engage in any kind of business with, any Borrower, any Subsidiaries thereof and
any Person who may do business with or own securities of any such Borrower or
Subsidiary thereof, all as if ABN AMRO Bank N.V. were not the Agent and without
any duty to account therefor to the Banks.
SECTION 9.04. Bank Credit Decision. Each Bank acknowledges
that it has, independently and without reliance upon the Agent, the Issuing Bank
or any other Bank and based on the financial statements referred to in Section
6.04 and such other documents and information as it has deemed appropriate, made
its own credit analysis and decision to enter into this Agreement and any other
Loan Document. Each Bank also acknowledges that it will, independently and
without reliance upon the Agent, the Issuing Bank or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement and any other Loan Document.
SECTION 9.05. Indemnification. The Banks agree to indemnify
the Agent and the Issuing Bank (in each case, to the extent not reimbursed by
any Borrower), ratably according to the respective principal amounts of the
Advances then held by each of them (or, if no Advances are at the time
outstanding, ratably according to the respective amounts of their commitments
hereunder), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Agent or the Issuing Bank, as the case may be, in any way
relating to or arising out of this Agreement, any other Loan Document or any
Letter of Credit or any action taken or omitted by the Agent or the Issuing
Bank, as the case may be, under this Agreement, any other Loan Document or any
Letter of Credit; provided, however, that no Bank shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from the Agent's or
the Issuing Bank's, as the case may be, gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank agrees to reimburse the Agent and
the Issuing Bank promptly upon demand for its ratable share of any
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out-of-pocket expenses (including counsel fees) incurred by the Agent or the
Issuing Bank, as the case may be, in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document or any Letter of Credit to the extent that the Agent or the Issuing
Bank, as the case may be, is not reimbursed for such expenses by any Borrower.
SECTION 9.06. Successor Agent. The Agent may resign at any
time by giving written notice thereof to the Banks and each Borrower and the
Agent may be removed at any time with or without cause by the Majority Banks.
Upon any such resignation or removal, the Majority Banks shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Majority Banks, and shall have accepted such appointment, within 30 days
after the retiring Agent's giving of notice of resignation or the Majority
Banks' removal of the retiring Agent, then the retiring Agent may, on behalf of
the Banks, appoint a successor Agent, which shall be a commercial bank organized
under the laws of the United States of America or of any State thereof, the laws
of the United Kingdom or the laws of France and having a combined capital and
surplus of at least $250,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Agent and the retiring Agent shall be discharged from its duties
and obligations under this Agreement and any other Loan Document. After any
retiring Agent's resignation or removal hereunder as Agent, the provisions of
Article IX shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under this Agreement and any other Loan Document.
ARTICLE X
THE OBLIGATIONS OF THE B BORROWERS
SECTION 10.01. Liability of each B Borrower. Each B Borrower
agrees that such B Borrower is jointly and severally liable to each Bank, the
Issuing Bank and the Agent for all Obligations (as defined in Section 4.01).
SECTION 10.02. Absolute Liability. Each B Borrower agrees that
the Obligations will be paid strictly in accordance with their terms, regardless
of any law, regulation or order now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of any Bank, the Issuing Bank and/or
the Agent with respect thereto. The obligations of each B Borrower under this
Article X are independent of the Obligations, and a separate action or actions
may be brought and prosecuted against such B Borrower to enforce this Article X
irrespective of whether any action is brought against any other B Borrower or
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whether any other B Borrower is joined in any such action or actions. The
liability of such B Borrower under this Article X shall be absolute and
unconditional irrespective of:
(i) any lack of validity or enforceability of this Agreement
or any Note;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations, or any other
amendment or waiver of or any consent to departure from this Agreement,
including any increase in the Obligations resulting from the extension
of additional credit;
(iii) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the
Obligations;
(iv) any manner of application of collateral, or proceeds
thereof, to all or any of the Obligations, or any manner of sale or
other disposition of any collateral for all or any of the Obligations
or any other assets of any other B Borrower;
(v) any change, restructuring or termination of the corporate
structure or existence of any other B Borrower; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any other B Borrower, or any
guarantor.
The provisions of this Article X shall continue to be effective or be
reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by any Bank upon the
insolvency, bankruptcy or reorganization of any other B Borrower or otherwise,
all as though such payment had not been made.
SECTION 10.03. Waiver. Each B Borrower hereby waives (and
consents in advance to the taking or failure to take, any action specified
below), to the fullest extent permitted by applicable law:
(i) any requirement that any Bank, the Issuing Bank or the
Agent secure or insure any security interest or lien or any property
subject thereto or exhaust any right or take any action against any
other B Borrower or any other person (including any other guarantor) or
any collateral;
(ii) any defense arising by reason of any claim or defense
based upon an election of remedies by any Bank, the Issuing Bank or the
Agent (including, without limitation, an election to non-judicially
foreclose on any real or personal property
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collateral) which in any manner impairs, reduces, releases or otherwise
adversely affects its subrogation, reimbursement or contribution rights
or other rights to proceed against any other B Borrower, any guarantor
or any other Person or any collateral;
(iii) any defense arising by reason of the failure of any
other Person to execute this Agreement or any other agreement or
guaranty;
(iv) any defense or benefits that may be derived from
California Civil Code Sections 2808, 2809, 2810, 2815, 2819, 2845 or
2850 or California Code of Civil Procedure Sections 580a, 580d
(including, without limitation, any defense based on estoppel arising
out of the operation of Section 580d of the California Code of Civil
Procedure in the context of nonjudicial foreclosure or any comparable
provision of the law of any other jurisdiction) or 726, or comparable
provisions of the laws of any other jurisdiction and all other
suretyship and other similar defenses it would otherwise have under the
laws of California or any other jurisdiction;
(v) all rights and defenses arising out of an election of
remedies by any Bank, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for a guaranteed
obligation, has destroyed such B Borrower's rights of subrogation and
reimbursement against the principal by the operation of Section 580d of
the California Code of Civil Procedure or otherwise.
(vi) any duty on the part of any Bank, the Issuing Bank or the
Agent to disclose to such B Borrower any matter, fact or thing relating
to the business, operation or condition of any other B Borrower and its
assets now known or hereafter known by such Bank, the Issuing Bank or
the Agent;
(vii) all benefits of any statute of limitations affecting
such B Borrower's liability under this Article X or affecting the
enforcement of this Article X or any of the Obligations or realization
on any collateral for the Obligations;
(viii) all setoffs and counterclaims;
(ix) promptness, diligence, presentment, demand for
performance and protest;
(x) notice of non-performance, default, acceleration, protest
or dishonor;
(xi) except for any notice otherwise required by applicable
laws that may not be effectively waived by such B Borrower (all of
which are hereby waived to the fullest
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extent permitted by law), notice of sale or other disposition of any
collateral for the Obligations; and
(xii) notice of acceptance of this Article X and of the
existence, creation or incurring of new or additional Obligations.
SECTION 10.04. Waiver of Subrogation . Until the Obligations
are paid in full, each B Borrower hereby irrevocably waives any claim or other
rights (including, without limitation, any rights arising under California Civil
Code Sections 2847, 2848 or 2849) that it may now or hereafter acquire against
any other B Borrower that arise from the existence, payment, performance or
enforcement of such B Borrower's obligations under this Article X, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification by or from any other B Borrower and any right to
participate in any claim or remedy of any Bank against any other B Borrower or
any collateral for the Obligations, whether or not such claim, remedy or right
arises in equity or under contract, statute or common law, including, without
limitation, the right to take or receive from any other B Borrower, directly or
indirectly, in cash or other property or by set-off or in any other manner,
payment or security on account of such claim, remedy or right. If any amount
shall be paid to such B Borrower in violation of the preceding sentence at any
time prior to the later of (x) the payment in full in cash of the Obligations
and all other amounts payable under this Article X and (y) the expiration or
termination of any commitment of the Bank to extend credit under any this
Agreement, such amount shall be held in trust for the benefit of the Bank and
shall forthwith be paid to the Bank to be credited and applied to the
Obligations and all other amounts payable under this Article X, whether matured
or unmatured, or to be held as collateral for any Obligations or other amounts
payable under this Article X thereafter arising. Each B Borrower acknowledges
that it will receive direct and indirect benefits from the transactions provided
for in this Agreement, and that the waiver set forth in this Section 10.04 is
knowingly made in contemplation of such benefits.
SECTION 10.05. Financial Condition of B Borrowers. Each B
Borrower represents to each Bank, the Issuing Bank and the Agent that such B
Borrower is now and will be completely familiar with the business, operations
and conditions of the other B Borrowers, and such B Borrower hereby waives and
relinquishes any duty on the part of any Bank, the Issuing Bank or the Agent to
disclose any matter, fact or thing relating to the business, operations or
conditions of the other B Borrowers now known or hereafter known by such Bank,
the Issuing Bank or the Agent.
SECTION 10.06. Certain Limitations. Section 10.01 of this
Agreement notwithstanding:
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(a) the liability of INMAC GmbH under this Agreement for the
Obligations of any other B Borrower shall at all times be limited to
the amount by which INMAC GmbH's equity (the calculation of which shall
take into account the captions reflected in Section 266(3)A I through V
of the German Commercial Code) at that time exceeds INMAC GmbH's
registered share capital (the "Surplus Equity") and further provided
that in determining the Surplus Equity such liabilities shall not be
valued below their true value and such assets shall not be valued above
their true realizable value so that such liabilities under this
Agreement would at no time require the payment of any monies which are
needed to maintain a net asset value which is at least equal to INMAC
GmbH's registered share capital;
(b) the liability of INMAC SA under this Agreement shall at
all times be limited to the Maximum Financial Capacity of Inmac S.A. at
the time of such payment where "Maximum Financial Capacity" means, as
of the time of its determination, an amount equal to the excess of (i)
the Net Worth of Inmac S.A. over (ii) $1,000,000 and where "Net Worth"
means, with respect to Inmac S.A., its "capitaux propres" as determined
in accordance with French generally accepted accounting principles as
reflected in the annual financial statements for the most recently
ended fiscal year of Inmac S.A.; and
(c) the liability of INMAC AB under this Agreement for the
Obligations of any other B Borrower shall at all times (i) not include
any such Obligations to the extent the proceeds of the respective B
Borrowings are loaned directly or indirectly to the A Borrower and (ii)
be limited to the amount which corresponds to the unrestricted equity
of INMAC AB ("fritt eget kapital") calculated in accordance with
Chapter 12, Section 2 of the Swedish Companies Act.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes, nor consent to any departure by any
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Majority Banks and then such waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given; provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by all of the Banks, do any of the following: (a)
waive any of the conditions specified in Article V, (b) increase the Commitments
of the Banks or subject the Banks to any additional monetary obligations, (c)
reduce the principal of, or interest on, the Advances, the Swing-Line Advances
or the Notes or any fees or other amounts payable hereunder, (d) postpone any
date fixed for any regularly scheduled payment of principal of, or interest on,
the Advances, the Swing-Line Advances or the Notes or any fees or other amounts
payable hereunder or waive any such payment when due, (e) change the percentage
of the Commitments or of the aggregate unpaid principal amount of the Advances,
the Swing-Line Advances or the Notes, or the number or percentage of Banks,
which shall be required for the Banks or any of them to take any action
hereunder or (f) amend this Section 11.01 or Section 11.16; provided, further,
that no amendment, waiver or consent shall, unless in writing and signed by the
Agent in addition to each of the Banks required above to take such action,
affect the rights or duties of the Agent under this Agreement or any Note or the
principal, interest on or repayment of any Swing-Line Advance; and provided,
further, that no amendment, waiver or consent shall, unless in writing and
signed by the Issuing Bank in addition to the Banks required above to take such
action, affect the rights or duties of the Issuing Bank under this Agreement.
SECTION 11.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopier
communication) and mailed (by certified mail, return receipt requested),
telecopied or delivered, if to any Borrower, at INMAC CORP., 0000 Xxxxxxxxx
Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, 00000-0000, Attention: Xx. Xxxxxx Xxxxx,
Treasurer; if to any Bank, at its Eurocurrency Lending Office specified opposite
its name on Schedule I hereto; and if to the Agent or the Issuing Bank, at ABN
AMRO BANK N.V., San Francisco International Branch, 000 Xxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxxxx, Xxxxxxxxxx, 00000-0000, Attention: Xx. Xxxxxxx Xxxxxx, with
a copy to ABN AMRO BANK N.V., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000,
Attention: Xx. Xxxxx Xxxxxxxx; or, as to each party, at such other address as
shall be designated by such party in a written notice to the other parties. All
such notices and communications shall, when mailed (by certified mail, return
receipt requested) or telecopied, be effective when deposited in the mails or
confirmed received in the case of a telecopy, except that notices and
communications to the Agent pursuant to Article II or IX or to the Issuing Bank
pursuant to
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Article III or IX shall not be effective until received by the Agent on the
Issuing Bank, as the case may be.
SECTION 11.03. No Waiver; Remedies. No failure on the part of
any Bank, the Issuing Bank or the Agent to exercise, and no delay in exercising,
any right under any Loan Document shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 11.04. Costs, Expenses and Taxes. (a) Each Borrower
agrees to pay the Agent and the Issuing Bank on demand all reasonable costs and
expenses of the Agent and the Issuing Bank, respectively, in connection with the
preparation, negotiation, approval, execution, delivery, filing, recording,
administration, modification and amendment of any of the Loan Documents and the
other documents to be delivered under such Loan Documents, including, without
limitation, the reasonable fees and out-of-pocket expenses of special and local
counsel for the Agent and the Issuing Bank with respect thereto and with respect
to advising the Agent and the Issuing Bank as to its rights and responsibilities
under any Loan Document and the other documents to be delivered hereunder and
thereunder. Each Borrower further agrees to pay on demand (i) all costs and
expenses, if any, of the Agent, the Issuing Bank or any Bank in connection with
the enforcement (whether through negotiations, legal proceedings or otherwise)
of any Loan Document and any the other documents to be delivered under such Loan
Document, including, without limitation, reasonable counsel fees and expenses in
connection with the enforcement of rights under this Section 11.04, and (ii) all
costs and expenses in connection with appraisals, valuations, audits and search
reports, all insurance and title costs, and all filing and recording fees
required hereby or associated with any enforcement of rights or remedies
specified in clause (i).
(b) If any payment of principal of any Advance is made other
than on the last day of the Interest Period for such Advance or the maturity
date for such Advance as specified in accordance with Section 2.06, as a result
of a payment pursuant to Section 2.12, acceleration of the maturity of the Notes
pursuant to Section 8.01 or for any other reason, such respective Borrower
shall, upon demand by any Bank (with a copy of such demand to the Agent), pay to
the Agent for the account of such Bank any amounts required to compensate such
Bank for any additional losses, costs or expenses which it may reasonably incur
as a result of such payment, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by such Bank to fund or maintain such Advance.
SECTION 11.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the
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consent specified by Section 8.01 to authorize the Agent to declare the Notes
due and payable pursuant to the provisions of Section 8.01 or to demand payment
of all then outstanding Total Letter of Credit Liability, each Bank is hereby
authorized at any time and from time to time, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank to or for the credit
or the account of any Borrower against any and all of the obligations of such
Borrower now or hereafter existing under any Loan Document to such Bank
(including, to the fullest extent permitted by law, obligations indirectly owed
to such Bank by virtue of its purchase of a participation of the Total Letter of
Credit Liability pursuant to Section 3.04), whether or not such Bank shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Bank agrees promptly to notify such Borrower after any
such set-off and application made by such Bank, provided that the failure to
give such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section 11.05 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) which such
Bank may have.
SECTION 11.06. Judgment. (a) If for the purposes of obtaining
a judgment in any court it is necessary to convert a sum due hereunder or under
the Notes in Dollars or in an Alternative Currency (the "Original Currency")
into another currency (the "Other Currency"), the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the Agent
could purchase the Original Currency with the Alternative Currency at the close
of business on the Business Day immediately preceding that on which the final
judgment is given.
(b) The obligation of each Borrower in respect of any sum due
in the Original Currency from it to any Bank, the Issuing Bank or the Agent
hereunder or under the Note held by such Bank shall, notwithstanding any
judgment in any Other Currency, be discharged only to the extent that on the
Business Day following receipt by such Bank, the Issuing Bank or the Agent, as
the case may be, of any sum adjudged to be so due in such Other Currency such
Bank, the Issuing Bank or the Agent, as the case may be, may in accordance with
normal banking procedures purchase Dollars or the appropriate Alternative
Currency, as the case may be, with such Other Currency; if the amount of the
Original Currency so purchased is less than the sum originally due to such Bank
or the Agent, as the case may be, in the Original Currency, each Borrower
agrees, as a separate obligation and notwithstanding any such judgment, to
indemnify such Bank, the Issuing Bank or the Agent, as the case may be, against
such loss, and if the amount of the Original Currency so purchased exceeds the
sum originally due to any Bank, the Issuing Bank or the Agent, as the case may
be, in the Original Currency, such Bank, the Issuing Bank or the Agent,as the
case may be, agrees to remit to each Borrower such excess.
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SECTION 11.07. Indemnification. Each Borrower agrees to
defend, protect, indemnify and hold harmless the Agent, each Bank and the
Issuing Bank and their respective Affiliates and the directors, officers,
employees, attorneys and agents of the Agent, each Bank, the Issuing Bank and
such Affiliates (each of the foregoing being an "Indemnitee" and all of the
foregoing being collectively the "Indemnitees") from and against any and all
claims, actions, damages, liabilities, costs and expenses (including, without
limitation, all fees and disbursements of counsel and environmental consultants
which may be incurred in the investigation or defense of any matter) imposed
upon, incurred by or asserted against any Indemnitee by any third-party, whether
direct, indirect or consequential and whether based on any federal, state or
foreign laws or other statutes or regulations (including, without limitation,
securities and commercial laws and regulations), under common law or on
equitable cause, or on contract, tort or otherwise, including, without
limitation, those arising:
(a) by reason of, relating to or in connection with the
execution, delivery, performance or enforcement of any Loan Document,
any commitments relating thereto, or any transaction contemplated by
any Loan Document; or
(b) in connection with any investigation, litigation,
proceeding or other action relating to any Loan Document (whether or
not any Indemnitee is a party thereto); or
(c) by reason of, relating to or in connection with any credit
extended or used under the Loan Documents or any act done or omitted by
any Person, or any event occurring, in connection therewith, or the
exercise of any rights or remedies thereunder;
provided, however, that, notwithstanding the foregoing, no Borrower shall be
liable to any Indemnitee for any portion of such claims, damages, liabilities
and expenses resulting from such Indemnitee's or such Indemnitee's Affiliate's,
director's, officer's, employee's, attorney's or agent's gross negligence or
willful misconduct. In the event this indemnity is unenforceable as a matter of
law as to a particular matter or consequence referred to herein, it shall be
enforceable to the full extent permitted by law.
This indemnification applies, without limitation, to any act,
omission, event or circumstance existing or occurring on or prior to the date of
payment in full of the Advances. The indemnification provisions set forth above
shall be in addition to any liability any Borrower may otherwise have. Without
prejudice to the survival of any other obligation of each Borrower hereunder,
the indemnities and obligations of each such Borrower contained in this Section
11.07 shall survive the payment in full of the Advances and the Swing-Line
Advances.
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SECTION 11.08. Survival of Representations and Warranties. All
representations and warranties made in, and in any certificates and other
documents delivered pursuant to, this Agreement and any other Loan Document
shall be deemed to have been relied upon by each Bank and shall survive the
execution and delivery of this Agreement and any other Loan Document, regardless
of any investigation made by or on behalf of any Bank, in full force and effect
until payment in full of all liabilities on the part of the Borrowers arising
under this Agreement or any other Loan Document.
SECTION 11.09. Binding Effect. This Agreement shall become
effective when it shall have been executed by each Borrower, the Agent and the
Issuing Bank and when the Agent shall have been notified by each Bank that such
Bank has executed it and thereafter it shall be binding upon and inure to the
benefit of each Borrower, the Agent, the Issuing Bank and each Bank and their
respective successors and assigns, except that no Borrower shall have the right
to assign its rights hereunder or any interest herein without the prior written
consent of the Banks.
SECTION 11.10. Severability of Provisions. Each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
prohibited or unenforceable in any jurisdiction, such provision shall, as to
such jurisdiction, be ineffective only to the extent of such prohibition or
unenforceability without invalidating the remainder of such provision or the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
SECTION 11.11. Assignments and Participations. (a) Each Bank
may assign to one or more banks or other entities all or a portion of its rights
and obligations under this Agreement (including, without limitation, all or a
portion of its A Commitment, its B Commitment, the Advances owing to it and the
Note or Notes held by it; provided, however, that (i) each such assignment shall
be of a constant, and not a varying, percentage of all rights and obligations
under this Agreement, including a constant percentage at its A Commitment and B
Commitment, (ii) the amount of the A Commitment and B Commitment of the
assigning Bank being assigned pursuant to each such assignment (determined as of
the date of the Assignment and Acceptance with respect to such assignment) shall
in no event be less than $4,000,000, (iii) each such assignment shall be to an
Eligible Assignee, (iv) the parties to each such assignment shall execute and
deliver to the Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance substantially in the form of Exhibit E hereto,
together with any Note or Notes subject to such assignment and a processing and
recordation fee of $2,500, and (v) the assignee shall execute a confidentiality
agreement in such form as in effect at such time between the assigning Bank and
the A Borrower]. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in each Assignment and Acceptance, (x)
the assignee thereunder shall be a party hereto and, to the
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extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Bank
hereunder and (y) the Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to such Assignment
and Acceptance, relinquish its rights and be released from its obligations under
this Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Bank's rights and obligations under this
Agreement, such Bank shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Bank makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Bank makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of any Borrower or the performance or observance by any Borrower of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of the financial statements referred to in
Section 6.04 and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance; (iv) such assignee will, independently and without
reliance upon the Agent, such assigning Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement; (v) such assignee confirms that it is an Eligible Assignee; (vi) such
assignee appoints and authorizes the Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to the
Agent by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Bank.
(c) The Agent shall maintain at its address referred to in
Section 11.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register for the recordation of the names and addresses of the Banks
and the A Commitment and B Commitment of, and principal amount of the Advances
owing to, each Bank from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and each Borrower, the Agent and the Banks may treat each Person whose
name is recorded in the Register as a Bank hereunder for all purposes of this
Agreement. The Register shall be available for inspection by any Borrower or any
Bank at any reasonable time and from time to time upon reasonable prior notice.
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(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and an assignee representing that it is an Eligible
Assignee, together with any Note or Notes subject to such assignment, the Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit E hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to each Borrower. Within five Business Days
after its receipt of such notice, each Borrower, at its own expense, shall
execute and deliver to the Agent in exchange for the surrendered Note or Notes a
new Note to the order of such Eligible Assignee in an amount equal to the A
Commitment and B Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained an A Commitment and B
Commitment hereunder, a new Note to the order of the assigning Bank in an amount
equal to the commitments retained by it hereunder. Such new Note or Notes shall
be in an aggregate principal amount equal to the aggregate principal amount of
such surrendered Note or Notes, shall be dated the effective date of such
Assignment and Acceptance and shall otherwise be in substantially the form of
Exhibit A hereto.
(e) Each Bank may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
commitments, the Advances owing to it and the Note or Notes held by it;
provided, however, that (i) such Bank's obligations under this Agreement
(including, without limitation, its commitments to the Borrowers hereunder)
shall remain unchanged, (ii) such Bank shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Bank
shall remain the holder of any such Note for all purposes of this Agreement, and
(iv) the Borrowers, the Agent and the other Banks shall continue to deal solely
and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement.
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
11.11, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrowers furnished to such Bank by
or on behalf of the Borrowers; provided that, prior to any such disclosure, the
assignee or participant or proposed assignee or participant shall agree to
preserve the confidentiality of any confidential information relating to the
Borrowers received by it from such Bank.
(g) Notwithstanding any other provision set forth in this
Agreement, any Bank may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Notes held by it) in favor of any Federal Reserve
Bank in accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
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SECTION 11.12. Governing Law and Jurisdiction. This Agreement
shall be construed in accordance with the laws of the State of California. Each
Borrower hereby irrevocably submits to the jurisdiction of the courts of the
State of California in any action or proceeding arising out of or in connection
with this Agreement, the Advances, the Swing-Line Advances and the Notes.
SECTION 11.13. Execution in Counterparts; Headings and Table
of Contents. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. The Table of Contents and descriptive
headings of the sections and articles are inserted for convenience only and do
not constitute part of this Agreement.
SECTION 11.14. Confidentiality Agreements. Each Bank has
entered into a confidentiality agreement with the A Borrower prior to the date
hereof and all written information identified as confidential and delivered
hereunder to the Banks shall be treated as such in accordance with the terms of
such confidentiality agreement.
SECTION 11.15 JURISDICTION: SERVICE OF PROCESS. EACH BORROWER
HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ANY SUIT, ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY NOTE, OR ANY ACTION OR
PROCEEDING TO EXECUTE OR OTHERWISE ENFORCE ANY JUDGEMENT IN RESPECT OF ANY
BREACH THEREOF, BROUGHT BY ANY BANK OR THE AGENT AGAINST ANY BORROWER OR ANY OF
THEIR RESPECTIVE PROPERTY, MAY BE BROUGHT BY SUCH BANK OR THE AGENT IN THE
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OR ANY
CALIFORNIA STATE COURT SITTING IN SAN FRANCISCO, CALIFORNIA AS SUCH BANK OR THE
AGENT MAY IN ITS SOLE DISCRETION ELECT, AND, BY THE EXECUTION AND DELIVERY OF
THIS AGREEMENT, IRREVOCABLY SUBMITS TO THE JURISDICTION OF EACH SUCH COURT; AND
AGREES THAT PROCESS SERVED EITHER PERSONALLY OR BY REGISTERED MAIL SHALL, TO THE
EXTENT PERMITTED BY LAW, CONSTITUTE ADEQUATE SERVICE OF PROCESS IN ANY SUCH
SUIT. WITHOUT LIMITING THE FOREGOING, EACH B BORROWER HEREBY APPOINTS, IN THE
CASE OF ANY SUCH ACTION OR PROCEEDING BROUGHT IN THE COURTS OF OR IN THE STATE
OF CALIFORNIA, CT CORPORATION, WITH OFFICES ON THE DATE HEREOF AT 000 XXXX
XXXXXXX XXXXXX, XXX XXXXXXX, XXXXXXXXXX 00000, TO RECEIVE FOR IT AND ON ITS
BEHALF, SERVICE OF PROCESS IN THE STATE OF CALIFORNIA WITH RESPECT THERETO,
PROVIDED EACH B BORROWER MAY APPOINT ANY OTHER PERSON, REASONABLY ACCEPTABLE TO
THE AGENT,
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WITH OFFICES IN THE STATE OF CALIFORNIA TO REPLACE SUCH AGENT FOR SERVICE OF
PROCESS UPON DELIVERY TO THE BANKS AND THE AGENT OF A REASONABLY ACCEPTABLE
AGREEMENT OF SUCH NEW AGENT AGREEING SO TO ACT. IN ADDITION, EACH BORROWER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY NOTE, BROUGHT IN
THE SAID COURTS, AND HEREBY IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL IN ANY WAY BE DEEMED TO LIMIT THE
ABILITY OF ANY BANK OR THE AGENT TO SERVE ANY SUCH WRITS, PROCESS OR SUMMONSES
IN ANY MANNER PERMITTED BY APPLICABLE LAW OR TO OBTAIN JURISDICTION OVER ANY
BORROWER IN SUCH OTHER JURISDICTION, AND IN SUCH MANNER, AS MAY BE PERMITTED BY
APPLICABLE LAW. THIS SECTION SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT,
THE EXPIRY OF ALL LETTERS OF CREDIT, AND THE PAYMENT IN FULL OF THE OBLIGATIONS
OF THE BORROWERS HEREUNDER.
SECTION 11.16. WAIVER OF JURY TRIAL. EACH OF THE BORROWERS,
THE AGENT, THE ISSUING BANK AND THE BANKS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE NOTES OR THE TRANSACTIONS CONTEMPLATED HEREBY
AND THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first written.
INMAC CORP.
By:____________________________
Name:
Title:
INMAC B.V.
By:____________________________
Name:
Title:
INMAC GMBH
By:____________________________
Name:
Title:
INMAC (U.K.) LTD.
By:____________________________
Name:
Title:
X-00
00
XXXXX XXXXXXXX LIMITED
By:____________________________
Name:
Title:
INMAC SA
By:____________________________
Name:
Title:
INMAC AB
By:____________________________
Name:
Title:
A Commitment B Commitment
------------ ------------
$ 1,166,667 $ 7,000,000 ABN AMRO BANK N.V.
as Agent, Issuing Bank and a Bank
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
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A Commitment B Commitment
------------ ------------
$ 833,333 $ 5,000,000 BARCLAYS BANK PLC
By:____________________________
Name:
Title:
$ 833,333 $ 5,000,000 CREDIT INDUSTRIEL ET COMMERCIAL
By:____________________________
Name:
Title:
$ 833,333 $ 5,000,000 NATIONAL WESTMINSTER BANK PLC
By:____________________________
Name:
Title:
$ 666,667 $ 4,000,000 BANQUE SAN PAOLO
By:____________________________
Name:
Title:
$ 666,667 $ 4,000,000 MIDLAND BANK PLC
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By:____________________________
Name:
Title:
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SCHEDULE I
Applicable Lending Offices
Name of Bank Eurocurrency Lending Office
------------ ---------------------------
ABN AMRO Bank N.V. Cayman Island Office
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
Barclays Bank plc 0 Xxxx Xxxxxx
Xxxxxxxxx
Xxxxxxxxx XX00 0XX
Credit Industriel et 00 xxx xx xx Xxxxxxxx
Xxxxxxxxxx xx Xxxxx 00000 Paris Cedex 09
National Westminster Bank plc NatWest Markets
19th Floor
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Banque San Paolo 00 Xxxxxx Xxxxx
00000 Xxxxx, Cedex 08
Midland Bank plc Business Banking Centre
Midland House Queens Court
00/00 Xxxxxx Xxxx
Xxxxxxx
Xxxxxxxxx XX0 0XX
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