EXHIBIT 10.32
QUANTUM CORPORATION
_
_ U.S. $85,000,000
_
_ CREDIT AGREEMENT
_
_ DATED AS OF SEPTEMBER 22, 1995
_
_ AMONG
_
_ QUANTUM CORPORATION,
_
_ THE SUMITOMO BANK, LIMITED
_
_ AS AGENT AND ISSUER
_
_ AND
_
_ THE OTHER BANKS PARTY HERETO
_
_ CREDIT AGREEMENT
_
_
_
_
_ This CREDIT AGREEMENT is entered into as of September 22,
_1995, among QUANTUM CORPORATION, a Delaware corporation (the
_"Company"), the several financial institutions party to this
_Agreement (collectively, the "Banks," and individually, a
_"Bank"), and THE SUMITOMO BANK, LIMITED, acting through its San
_Francisco Branch, as agent for the Banks (in such capacity, the
_"Agent") and as Issuer (as defined below).
_
_ WHEREAS, at the request of the Company, the Banks have
_agreed to make available to the Company a letter of credit
_facility upon, and subject to, the terms and conditions set forth
_in this Agreement;
_
_ NOW, THEREFORE, in consideration of the mutual agreements,
_provisions and covenants contained herein, the parties agree as
_follows:
_
_ARTICLE I. DEFINITIONS.
_
_ 1.1 DEFINED TERMS. In addition to the terms defined
_elsewhere in this Agreement, the following terms have the
_following meanings:
_
_ "AGGREGATE COMMITMENT" means the Commitments of the
_Banks in the aggregate amount of eighty-five million dollars
_($85,000,000), as such amount may be reduced from time to time
_pursuant to this Agreement.
_
_ "AGREEMENT" means this Credit Agreement, as amended,
_supplemented or modified from time to time.
_
_ "AVAILABILITY PERIOD" means the period commencing on
_the Closing Date and ending on the Termination Date.
_
_ "BUSINESS DAY" means any day other than a Saturday,
_Sunday or other day on which commercial banks in San Francisco
_are authorized or required by law to close.
_
_ "CLOSING DATE" means the date on which the initial
_Letter of Credit is issued hereunder.
_
_ "COMMITMENT" means, for each Bank, the amount set forth
_opposite such Bank's name in Schedule 2.1 under the heading
_"Commitment", as the same may be reduced pursuant to Section 2.6
_or as a result of one or more assignments pursuant to Section
_9.8, or, where the context so requires, the obligation of each
_Bank to participate in Letters of Credit (including in drawings
_thereunder) in the aggregate up to such amount on the terms and
_conditions set forth in this Agreement.
_
_ "CREDIT EXTENSION" means (a) the issuance of (including
_the participation by a Bank in), any Letters of Credit under
_subsection 2.1; and (b) the amendment (including the
_participation by a Bank in), of any Letters of Credit under
_subsection 2.2.
_
_ "DEFAULT" means any event which, with the giving of
_notice, the lapse of time, or both, would constitute an Event of
_Default.
_
_ "DOCUMENTS" means this Agreement, the Letters of
_Credit, and all other documents delivered and to be delivered to
_the Agent, the Issuer or the Banks in connection therewith.
_
_ "DOLLARS", and "dollars" and "$" each mean lawful money
_of the United States.
_
_ "EFFECTIVE AMOUNT" means with respect to any
_outstanding Letter of Credit Obligations on any date the amount
_of such Letter of Credit Obligations on such date after and
_giving effect to any issuances and amendments of Letters of
_Credit occurring on such date and any other changes in the
_aggregate amount of the Letter of Credit Obligations as of such
_date, including as a result of any reimbursements of outstanding
_unpaid drawings under any Letters of Credit or any reductions in
_the maximum amount available for drawing under Letters of Credit
_taking effect on such date.
_
_ "EVENT OF DEFAULT" means any of the events specified in
_Section 7.1.
_
_ "EXISTING CREDIT FACILITY" means the Credit Agreement
_dated as of October 3, 1994, as amended by that certain First
_Amendment to Credit Agreement dated as of February 15, 1995, and
_that certain Second Amendment to Credit Agreement dated as of
_June 26, 1995, among the Company, the banks named therein, ABN
_AMRO Bank, N.V., Barclays Bank PLC and CIBC Inc., as managing
_agents and Canadian Imperial Bank of Commerce, as administrative
_agent and collateral agent, as the same may be amended, modified,
_supplemented or restated from time to time.
_
_ "EXISTING LETTERS OF CREDIT" means all letters of
_credit issued for the account of the Company pursuant to the
_Existing Credit Facility and outstanding thereunder as of the
_Closing Date.
_
_ "FED FUNDS RATE" shall have the meaning set forth for
_such term in Schedule 1.1 hereto.
_
_ "FEDERAL RESERVE BOARD" means the Board of Governors of
_the Federal Reserve System or any successor thereof.
_
_ "GAAP" means generally accepted accounting principles
_set forth in the opinions and pronouncements of the Accounting
_Principles Board and the American Institute of Certified Public
_Accountants and statements and pronouncements of the Financial
_Accounting Standards Board (or agencies with similar functions of
_comparable stature and authority within the accounting
_profession), or in such other statements by such other entity as
_may be in general use by significant segments of the U.S.
_accounting profession, which are applicable to the circumstances
_as of the date of determination.
_ "GOVERNMENTAL AUTHORITY" means any nation or
_government, any state or other political subdivision thereof, any
_central bank (or similar monetary or regulatory authority),
_thereof, any entity exercising executive, legislative, judicial,
_regulatory or administrative functions of or pertaining to
_government, and any corporation or other entity owned or
_controlled, through stock or capital ownership or otherwise, by
_any of the foregoing.
_
_ "IKEI" means Ireland-Kotobuki Electronics Industries,
_Ltd., a subsidiary of MKE.
_
_ "INSOLVENCY PROCEEDING" means (a) any case, action or
_proceeding before any court or other Governmental Authority
_relating to bankruptcy, reorganization, insolvency, liquidation,
_receivership, dissolution, winding-up or relief of debtors, or
_(b) any general assignment for the benefit of creditors,
_composition, marshalling of assets for creditors or other,
_similar arrangement in respect of its creditors generally or any
_substantial portion of its creditors; in each case of (a) and (b)
_undertaken under U.S. Federal, State or foreign law.
_
_ "ISSUER" means The Sumitomo Bank, Limited, and its
_successors and assigns.
_
_ "ISSUING OFFICE" means, with respect to the Issuer or
_any Bank, the office or offices of the Issuer or such Bank from
_which it may make, or at which it may maintain, any extension of
_credit hereunder (or in the case of the Issuer, issue a Letter of
_Credit), as the Issuer or such Bank may from time to time specify
_to the Company and the Agent.
_
_ "LETTER OF CREDIT" means any standby letter of credit
_issued pursuant to Article II and all amendments thereto.
_
_ "LETTER OF CREDIT OBLIGATIONS" means at any time the
_sum of (a) all Letter of Credit Outstandings, plus (b) all
_drawings under all Letters of Credit which are unreimbursed or
_unpaid by the Company.
_
_ "LETTER OF CREDIT OUTSTANDINGS" means the aggregate
_undrawn amount of all Letters of Credit.
_
_ "MAJORITY BANKS" means at any time Banks holding at
_least 66-2/3% of the aggregate participations of the Banks in the
_Letter of Credit Obligations then outstanding, or if no such
_Letter of Credit Obligations are outstanding, Banks holding at
_least 66-2/3% of the Aggregate Commitment.
_
_ "MATERIAL ADVERSE EFFECT" means a material adverse
_change in, or a material adverse effect upon, any of (a) the
_operations, business, properties, or condition (financial or
_otherwise) of the Company or the Company and its Subsidiaries
_taken as a whole; (b) the ability of the Company to perform under
_any Document or to avoid any Event of Default; or (c) the
_legality, validity, binding effect or enforceability of any
_Document.
_
_ "MATERIAL SUBSIDIARIES" means, with reference to the
_Company, (a) Quantum Peripherals (Malaysia) Sdn. Bhd., Quantum
_Data Storage B.V., and Rocky Mountain Magnetics, Inc., provided
_that, if the Company sells all of the equity securities held by
_the Company in any of the foregoing Subsidiaries, and such sale
_does not breach the terms of the Existing Credit Agreement, such
_Subsidiary shall cease to be a Material Subsidiary; (b) Quantum
_Peripherals (Europe) S.A.; (c) each other Subsidiary of the
_Company whose obligation is secured by a Letter of Credit; and
_(d) each other Subsidiary of the Company which has assets with a
_total book value greater than $50,000,000.
_
_ "MKE" means Matsushita-Kotobuki Electronics Industries,
_Ltd.
_
_ "NET INCOME" means, for any period, the net positive
_income, if any, of the Company on a consolidated basis for such
_period after provision for income taxes.
_
_ "NET WORTH" means, at any time, the remainder at such
_time, determined on a consolidated basis in accordance with GAAP,
_of (a) the total assets of the Company on a consolidated basis
_MINUS (b) the sum (without limitation and without duplication of
_deductions) of (i) the total liabilities of the Company and its
_Subsidiaries and (ii) all reserves established by the Company and
_its Subsidiaries for anticipated losses and expenses (to the
_extent not deducted in calculating total assets in clause (a)
_above).
_
_ "OBLIGATIONS" means all Letter of Credit Obligations,
_and other indebtedness advances, debts, liabilities, obligations,
_covenants and duties owing by the Company to any Bank, the Agent,
_the Issuer or any other Person required to be indemnified under
_any Document, of any kind or nature, present or future, whether
_or not evidenced by any note, guaranty or other instrument,
_arising under this Agreement, under any other Document, whether
_or not for the payment of money, whether arising by reason of an
_extension of credit, loan, guaranty, indemnification or in any
_other manner, whether direct or indirect (including those
_acquired by assignment), absolute or contingent, due or to become
_due, now existing or hereafter arising and however acquired.
_
_ "PERCENTAGE SHARE" means as to any Bank, the percentage
_equivalent of such Bank's Commitment divided by the Aggregate
_Commitment. The initial Percentage Share of each Bank is set
_forth opposite such Bank's name in Schedule 2.1 under the heading
_"Percentage Share."
_
_ "PERSON" means an individual, partnership, company,
_corporation, business trust, joint stock company, trust,
_unincorporated association, joint venture or Governmental
_Authority.
_
_ "PRIME RATE" means the rate of interest publicly
_announced from time to time by Sumitomo Bank of California in San
_Francisco, California, as its prime or base rate. Any change in
_prime or base rate announced by Sumitomo Bank of California shall
_take effect at the opening of business on the day specified in
_the public announcement of such change. The Prime Rate is
_determined by Sumitomo Bank of California from time to time as a
_means of pricing credit extensions to some customers and is
_neither directly tied to any external rate of interest or index
_nor necessarily the lowest rate of interest charged by Sumitomo
_Bank of California at any given time for any particular class of
_customers or credit extensions.
_
_ "QUICK RATIO" shall mean, at any time, the ratio,
_determined on a consolidated basis in accordance with GAAP, of
_(a) the sum at such time of all cash, cash equivalents (less than
_90 days in term), short term marketable securities (less than one
_year in term) and accounts receivable of the Company and its
_Subsidiaries (less all reserves therefor); to (b) the current
_liabilities of the Company and its Subsidiaries at such time.
_
_ "REQUIREMENT OF LAW" means, as to any Person, any law
_(statutory or common), treaty, rule or regulation or
_determination of an arbitrator or of a Governmental Authority, in
_each case applicable to or binding upon the Person or any of its
_property or to which the Person or any of its property is
_subject.
_
_ "SUBSIDIARY" of any Person means any corporation,
_company, partnership, joint venture or other entity of which more
_than 50% of the outstanding voting securities or equivalent
_interests having ordinary voting power to elect a majority of the
_board of directors or comparable body of such corporation,
_company, partnership, joint venture or other entity (irrespective
_of whether or not at the time voting securities or equivalent
_interests or any other class or classes shall or might have
_voting power upon the occurrence of any contingency) is at the
_time owned or controlled, directly or indirectly, by such Person
_or by one or more Subsidiaries of such Person or by such Person
_and one or more Subsidiaries of such Person.
_
_ "SUMITOMO" means The Sumitomo Bank, Limited.
_
_ "TERMINATION DATE" means the date which is the first
_anniversary of the Closing Date, unless such Termination Date is
_otherwise extended in accordance with Section 2.14 hereof.
_
_ "UNITED STATES" and "U.S." each means the United States
_of America.
_
_ 1.2 OTHER DEFINITIONAL PROVISIONS.
_
_ (A) DEFINED TERMS. The meaning of defined terms shall
_be equally applicable to the singular and plural forms of the
_defined terms.
_
_ (B) THE AGREEMENT. The words "hereof," "herein,"
_"hereunder" and words of similar import when used in this
_Agreement shall refer to this Agreement as a whole and not to any
_particular provision of this Agreement; and section, schedule and
_exhibit references are to this Agreement unless otherwise
_specified.
_
_ (C) CAPTIONS. The captions and headings of this
_Agreement are for convenience of reference only and shall not
_affect the construction of this Agreement.
_
_ (D) INDEPENDENCE OF PROVISIONS. The parties
_acknowledge that this Agreement and other Documents may use
_several different limitations, tests or measurements to regulate
_the same or similar matters, and that such limitations, tests and
_measurements are cumulative and must each be performed, except as
_expressly stated to the contrary in this Agreement.
_
_ 1.3 ACCOUNTING PRINCIPLES. (a) Unless the context
_otherwise clearly requires, all accounting terms not expressly
_defined herein shall be construed, and all financial computations
_required under this Agreement shall be made, in accordance with
_GAAP, consistently applied, (b) References herein to "fiscal
_year" and "fiscal quarter" refer to such fiscal periods of the
_Company.
_
_ARTICLE II. THE LETTER OF CREDIT FACILITY.
_
_ 2.1 THE LETTERS OF CREDIT.
_
_ (A) Subject to the terms and conditions of this
_Agreement (including those set out in Article IV hereof) and to
_the receipt by the Agent of the Company's completed irrevocable
_written request in the form of EXHIBIT A hereto no later than
_11:00 a.m. (San Francisco time) on the third Business Day (except
_for the initial Letter of Credit, in which case such request must
_be received by no later than 11:00 a.m. (San Francisco time) one
_Business Day) prior to the requested date of issuance, and in
_reliance upon the representations and warranties of the Company
_set forth herein, at any time and from time to time on any
_Business Day during the Availability Period, the Issuer (as
_fronting bank on behalf of the Banks) shall issue for the account
_of the Company such Letters of Credit as the Company may request
_pursuant to the terms and conditions hereof, each in the form of
_EXHIBIT B hereto (or in such other form as may be agreed upon by
_the Banks, the Issuer, the Agent and the Company). Each such
_Letter of Credit shall be denominated in Dollars and in an amount
_not less than $1 million; provided that the sum of (i) the
_maximum face amount of all Letters of Credit to be issued on the
_proposed day of issuance plus (ii) the amount of the Letter of
_Credit Obligations outstanding on that day (as a result of
_issuances, amendments or otherwise) shall not exceed the
_Aggregate Commitment. The beneficiary of each such Letter of
_Credit shall be MKE, IKEI, or, upon the consent of the Majority
_Banks, any other 100% wholly owned Subsidiary of MKE.
_Notwithstanding anything to the contrary contained in this
_Agreement, no Letter of Credit shall have a term in excess of six
_months, or an expiration date that is later than the Termination
_Date.
_
_ (B) Simultaneously with (and automatically upon) the
_issuance of each Letter of Credit, the Banks shall be deemed to
_have purchased a 100% participation from the Issuer, without
_recourse to or warranty from the Issuer, in such Letter of Credit
_(as it may be amended from time to time pursuant hereto),
_including in all amounts payable by the Issuer in respect
_thereof; each Bank's share in such 100% participation shall be
_proportionate to such Bank's Percentage Share of the Aggregate
_Commitment.
_
_ (C) Upon the making of any drawing under a Letter of
_Credit by such beneficiary, the full amount of such drawing shall
_be immediately due and payable by the Company to the Issuer, and
_the Company shall, on demand of the Issuer, pay the full amount
_of such drawing to the Issuer (through the Agent) on the date of
_such drawing.
_
_ (d) Within the limits of the Aggregate Commitment, and
_subject to the other terms and conditions hereof, this is a
_revolving letter of credit facility, and the Company may, during
_the Availability Period, request Letters of Credit to replace
_Letters of Credit which have expired or which have been drawn
_upon and been fully reimbursed by the Company.
_
_ 2.2 AMENDMENTS TO LETTERS OF CREDIT.
_
_ (A) The Issuer and the Banks agree that, at the
_request of the Agent and on and subject to the terms and
_conditions hereinafter set forth (including Article IV hereof and
_the receipt by the Agent of the Company's completed irrevocable
_written request in the form of EXHIBIT C hereto no later than
_11:00 a.m. (San Francisco time) on the third Business Day prior
_to the requested date of issuance of such amendment and, where
_required as determined by the Agent and the Issuer, the consent
_of the corresponding beneficiaries), from time to time on any
_Business Day during the Availability Period, the Issuer shall
_issue on the date requested by the Company the following types of
_amendments to Letters of Credit as requested by the Company: (i)
_amendments extending or accelerating the expiry dates of Letters
_of Credit, provided that no extended expiry date shall be later
_than the earlier of (A) six months after the expiry date of such
_Letter of Credit immediately prior to such amendment, and (B) the
_Termination Date; and (ii) amendments increasing or decreasing
_the maximum amounts available for drawings under Letters of
_Credit, provided that no such increase shall cause the Effective
_Amount of the Letter of Credit Obligations as of the date of the
_amendment to exceed the Aggregate Commitment.
_
_ (B) The Agent shall request the consent of the Banks
_and the Issuer to the Company's request for any amendments to
_Letters of Credit not described in subsection (a). Such
_amendments may be issued only pursuant to the agreement of the
_Agent, the Banks, the Issuer and the Company.
_
_ 2.3 REIMBURSEMENTS.
_
_ (A) PAYMENTS UNDER LETTERS OF CREDIT. Without
_limiting any other obligations of the Company hereunder including
_under Section 2.1, the Company shall pay and reimburse the Agent,
_for the account of (and for payment to) the Issuer and each Bank,
_for all amounts paid by the Issuer and such Bank under or in
_respect of each Letter of Credit issued by the Issuer for the
_Company's account hereunder. Each payment or reimbursement shall
_be made on the same Business Day as, or, upon the request of the
_Issuer or the Agent, one Business Day prior to, the date on which
_each such payment is to be made by the Issuer under a Letter of
_Credit.
_
_ (B) INTEREST. The Company shall pay interest on the
_amounts paid by the Issuer and each Bank under or in respect of a
_Letter of Credit (and any other overdue amounts payable
_hereunder), at a rate per annum equal to the Prime Rate plus two
_percent (2.00%) until such amounts are paid or reimbursed by the
_Company in full. The Company shall pay interest on each such
_amount on demand of the Agent, and on the day on which it pays or
_reimburses the Agent for drawings under Letters of Credit such
_amount in accordance with Section 2.
_
_ (C) CHARGES AND EXPENSES. The Company shall reimburse
_the Agent for the account of the Agent, the Issuer and each Bank,
_as applicable, for all charges and expenses incurred by the
_Agent, the Issuer and such Bank with respect to the issuance,
_amendment and payment of a Letter of Credit issued by the Issuer
_for the Company's account. The Agent shall xxxx the Company for
_all such charges and expenses incurred by the Agent, the Issuer
_and each Bank, provided that the failure of the Agent to so xxxx
_the Company, shall not affect the Company's obligations to pay
_the relevant amount. The Company shall pay each such xxxx within
_ten Business Days after the date of the billing statement.
_
_ 2.4 FEES.
_
_ (A) FACILITY AND ADMINISTRATIVE FEES. The Company
_shall pay to the Agent (i) for the ratable benefit of the Banks,
_on the Closing Date, a one-time facility fee in the amount of
_$42,500; and (ii) for the account of the Agent and the Issuer, an
_administrative fee as separately agreed by a letter dated as of
_September 22, 1995 between the Agent and the Company.
_
_ (B) LETTER OF CREDIT FEE. So long as any Letter of
_Credit Outstandings exist the Company shall pay to the Agent (i)
_for the ratable benefit of each Bank, a Letter of Credit fee with
_respect to the Letters of Credit equal to 0.36% per annum, and
_(ii) for the benefit of the Issuer a Letter of Credit fee equal
_to 0.04% per annum, of the amount at such time of the Letter of
_Credit Outstandings, in arrears on the last Business Day of each
_calendar quarter (commencing September 30, 1995) and on the
_Termination Date.
_
_ 2.5 LOAN ACCOUNTS. All sums owing to the Agent, the Issuer
_and each Bank shall be evidenced by one or more accounts
_maintained by the Agent in the ordinary course of business. The
_accounts maintained by the Agent shall be conclusive evidence
_absent manifest error of the amount of all sums owing to Agent,
_the Issuer and the Banks by the Company and the interest and
_payments thereon and other amounts due and payable hereunder.
_Any failure so to record or any error in doing so shall not,
_however, limit or otherwise affect the obligation of the Company
_hereunder to pay any amount owing with respect thereto.
_
_ 2.6 VOLUNTARY TERMINATION OR REDUCTION OF COMMITMENTS. The
_Company may, upon not less than 10 Business Days' prior notice to
_the Agent (which notice, absent consent of the Agent, shall be
_binding and irrevocable) terminate the Aggregate Commitment or
_permanently reduce the Aggregate Commitment by an aggregate
_minimum amount of Five Million Dollars ($5,000,000) or any
_multiple thereof; provided that no such reduction or termination
_shall be permitted if the Effective Amount of Letter of Credit
_Obligations on the effective date thereof would exceed the amount
_of the Aggregate Commitment then in effect; and, provided,
_further, that once reduced in accordance with this Section 2.6,
_the Aggregate Commitment may not be increased. Any reduction of
_the Aggregate Commitment shall be applied to each Bank's
_Commitment in accordance with its respective Percentage Share.
_The Agent shall give each Bank prompt notice of any such request
_for reduction or termination of the Aggregate Commitment received
_from the Company.
_
_ 2.7 COMPUTATION OF FEES AND INTEREST. All computations of
_fees and interest payable hereunder and under any other Document
_shall be made on the basis of a year of 360 days and accrual days
_elapsed, which results in more interest being paid than if
_computed on the basis of a 365-day year. Interest and fees shall
_accrue during each period during which interest or such fees
_are computed from the first day thereof to the last day thereof.
_Each determination by the Agent of an interest rate or fee or
_other amount owing pursuant to any provision of this Agreement
_shall be conclusive and binding on the Company and the Banks in
_the absence of manifest error.
_
_ 2.8 ISSUANCE AND DRAWINGS.
_
_ (A) REQUESTS FOR ISSUANCE AND AMENDMENT. The Agent
_shall give notice to the Issuer and each Bank of written requests
_received by the Agent from the Company for issuance of Letters of
_Credit pursuant to Section 2.1 or for amendment to Letters of
_Credit pursuant to Section 2.2, within one Business Day of their
_receipt by the Agent, provided that the Agent shall incur no
_liability whatsoever for its failure to do so.
_
_ (B) ISSUANCE BY THE ISSUER OF LETTERS OF CREDIT.
_Subject to the terms and conditions set forth herein, the Issuer
_shall issue each Letter of Credit not later than 3:00 p.m. (San
_Francisco time) on the date of issuance requested by the Company.
_The Issuer shall deliver each Letter of Credit to the advising
_bank named in such Letter of Credit or to the beneficiary thereof
_if no advising bank is named. The Issuer shall also deliver to
_the Agent a true and complete copy of each such Letter of Credit.
_
_ (C) DRAWINGS.
_
_ (i) The Issuer shall promptly notify the Company,
_ the Agent and each Bank of a drawing by a beneficiary under
_ a Letter of Credit. In determining whether to pay a drawing
_ under any Letter of Credit, the Issuer shall be solely
_ responsible for determining that the documents and
_ certificates required to be delivered under the Letter of
_ Credit have been delivered and that they comply on their
_ face with the requirements of such Letter of Credit.
_
_ (ii) As between the Company and the Banks and the
_ Issuer, the Company assumes all risks of the acts and
_ omissions of, or misuse of any Letter of Credit by, the
_ respective beneficiaries of the Letters of Credit. In
_ furtherance and not in limitation of the foregoing, the
_ Issuer shall not be responsible: (1) for the form,
_ validity, sufficiency, accuracy, genuineness or legal effect
_ of any document submitted by any party in connection with
_ the application for and issuance of or any drawing under the
_ Letters of Credit, even if it should in fact prove to be in
_ any or all respects invalid, insufficient, inaccurate,
_ fraudulent or forged, or for any breach, default or non-
_ compliance with any related agreement; (2) for the validity
_ or sufficiency of any instrument transferring or assigning
_ or purporting to transfer or assign any Letter of Credit or
_ the rights or benefits thereunder or proceeds thereof, in
_ whole or in part, which may prove to be invalid or
_ ineffective for any reason; (3) for failure of the
_ beneficiary of any Letter of Credit to comply fully with
_ conditions required in order to draw upon any Letter of
_ Credit; (4) for errors, omissions, interruptions or delays
_ in transmission or delivery of any messages, by mail, cable,
_ telegraph, facsimile, telex or otherwise; (5) for any loss
_ or delay in the transmission or otherwise of any document
_ required in order to make a drawing under any Letter of
_ Credit or of the proceeds thereof; (6) for the
_ misapplication by the beneficiary of any Letter of Credit of
_ the proceeds of any drawing under such Letter of Credit; and
_ (7) for any consequences arising from causes beyond the
_ control of the Issuer, including any acts of a Government
_ Authority. None of the above shall affect, impair, or
_ prevent the vesting of any of the Issuer's rights or powers
_ hereunder.
_
_ In furtherance and extension and not in limitation
_ of the specific provisions hereinabove set forth, any action
_ taken or omitted by the Issuer under or in connection with
_ the Letters of Credit, if taken or omitted in good faith,
_ shall not put the Issuer under any resulting liability to
_ the Company or the Banks.
_
_ (iii) The Issuer shall have no obligation
_ whatsoever to make any factual or legal determinations as to
_ the correctness of any demand or payment under any Letter of
_ Credit or other related agreements or as to any other
_ matters before the Issuer makes any payment under the Letter
_ of Credit.
_
_ 2.9 PAYMENTS BY THE COMPANY.
_
_ (A) PAYMENTS TO AGENT. (i) All payments to be made
_by the Company on account of reimbursements for drawings under
_Letters of Credit, interest, fees and other amounts required
_hereunder shall be made, except as otherwise expressly provided
_herein, to the Agent for the account of the Agent, the Issuer or
_the ratable account of the Banks, as applicable, at the Agent's
_office specified for payments set forth on the signature pages
_hereof, in dollars and in immediately available funds, no later
_than 11:00 a.m. (San Francisco time) on the relevant date. The
_Agent will promptly distribute to the Agent, the Issuer and each
_Bank its Percentage Share (or other applicable share as expressly
_provided herein) of, such reimbursement, interest, fees or other
_amounts, as applicable, in like funds as received. Any payment
_which is received by the Agent later than 11:00 a.m. (San
_Francisco time) shall be deemed to have been received on the
_immediately succeeding Business Day and any applicable interest
_or fee payable by the Company shall continue to accrue. (ii)
_All payments to be made by the Company on account of
_reimbursements and payments for drawings under Letters of Credit,
_interest, fees and other amounts payable hereunder shall be made
_without setoff, counterclaim or defense, and free and clear of
_any deductions or withholdings for taxes or otherwise.
_
_ (B) TAXES. If the Company is prohibited by law from
_paying such sums free and clear of deductions or withholdings for
_taxes, then (x) the Company shall pay or withhold in respect of
_such taxes as required, and (y) such sums payable shall be
_increased as necessary so that, after making all required
_deductions and withholdings (including deductions applicable to
_additional sums payable under this Section), the relevant party
_receives an amount equal to the sum it would have received had no
_such deductions or withholdings been made. In each instance when
_the Company pays any taxes contemplated by this Section, the
_Company shall forward to the Agent (for the account of the
_relevant party) within thirty days of such payment original
_official receipts therefor or such other evidence of payment as
_is satisfactory to the Agent (or such relevant party).
_
_ (C) EXTENSION. Whenever any payment hereunder 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 interest or fees, as the case may be.
_
_ (D) OBLIGATIONS OF COMPANY ABSOLUTE. The
_reimbursement obligations of the Company in respect of any Letter
_of Credit shall be absolute, unconditional and irrevocable, and
_shall be paid strictly in accordance with the terms of this
_Agreement under all circumstances, including: (i) any lack of
_validity or enforceability of any Letter of Credit or any of the
_other Documents, or any other agreement or instrument relating to
_any thereof (all of the foregoing collectively called the "LETTER
_OF CREDIT DOCUMENTS"); (ii) any amendment or waiver of, or any
_consent to departure from, the terms of all or any of the Letter
_of Credit Documents; (iii) the existence of any claim, setoff,
_defense or other right that the Company may have at any time
_against any beneficiary, or any transferee, of any Letter of
_Credit (or any Person for which any such beneficiary or
_transferee may be acting), or any other Person, whether in
_connection with this Agreement, the transactions contemplated
_herein or in any Letter of Credit Document, or any unrelated
_transaction; (iv) any statement or any document presented under
_any 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; (v) payment in good faith by
_the Issuer under any Letter of Credit against presentation of a
_draft or certificate that does not comply with the terms of such
_Letter of Credit or (vi) any other circumstance or happening
_whatsoever, whether or not similar to any of the foregoing. The
_provisions of this Section 2.9 shall survive the payment of all
_Obligations and the occurrence of the Termination Date.
_
_ (E) NON-RECEIPT OF FUNDS. Unless the Agent shall have
_received notice from the Company prior to the date on which any
_payment is due to the Issuer or the Banks hereunder that the
_Company will not make such payment in full, the Agent may assume
_that the Company has made such payment in full to the Agent on
_such date and the Agent may (but shall not be so required), in
_reliance upon such assumption, cause to be distributed to the
_Issuer and each Bank on such due date an amount equal to the
_amount then due the Issuer or such Bank. If and to the extent
_the Company shall not have made such payment in full to the
_Agent, the Issuer and each Bank shall repay to the Agent on
_demand such amount distributed to the Issuer or such Bank,
_together with interest thereon for each day from the date such
_amount is distributed to the Issuer or such Bank until the date
_the Issuer or such Bank repays such amount to the Agent, at the
_Fed Funds Rate.
_
_ 2.10 FUNDING OF BANKS' PARTICIPATIONS
_
_ (A) In the event that the Issuer shall not be paid or
_reimbursed by the Company for any drawing under any Letter of
_Credit as provided and by the date required under Section 2, the
_Agent, upon notice from the Issuer, shall promptly notify each
_Bank and the Issuer of the unpaid or unreimbursed amount of such
_drawing and of such Bank's respective pro rata portion thereof
_and participation therein. Each Bank irrevocably and
_unconditionally agrees (irrespective of the occurrence of a
_Default or Event of Default or failure of condition precedent or
_any other circumstance whatsoever) that it shall make available
_to the Agent (for the account of the Issuer) an amount equal to
_its respective participation in same day funds plus interest
_thereon as set forth in the following sentence, at the office of
_the Agent specified in such notice, not later than 3:00 p.m. (San
_Francisco time) on the date of such notice from the Issuer (or,
_if earlier, from the Agent on behalf of the Issuer). In the
_event that any Bank fails to make available to the Agent the
_amount of such Bank's participation in such Letter of Credit as
_provided in this Section 2.10), the Issuer (through the Agent)
_shall be entitled to recover such amount on demand from such Bank
_together with interest thereon, for each day from the date of
_such drawing until the date such amount is paid to the Issuer, at
_the rate per annum equal to the Fed Funds Rate.
_
_ (B) OBLIGATIONS OF BANKS TO ISSUER SEVERAL. The
_failure of any Bank to make any payment to the Issuer or
_reimbursement in respect of Letters of Credit shall not relieve
_any other Bank of its obligation hereunder to make such payment
_or reimbursement; provided that no Bank shall be responsible for
_the failure of any other Bank to make any payment or
_reimbursement to be made by it. The payment by any Bank of any
_such payment or reimbursement to the Issuer in respect of Letters
_of Credit shall not relieve the Company of its Obligations with
_respect thereto.
_
_ (C) OBLIGATIONS OF BANKS TO ISSUER ABSOLUTE. The
_obligations of each Bank to make payments in respect of their
_participations pursuant to this Section 2.10 shall be absolute,
_unconditional and irrevocable, and shall be paid strictly in
_accordance with the terms of this Agreement under all
_circumstances, including, without limitation, without regard to
_(i) any lack of validity or enforceability of, or any release or
_discharge of the Company from liability; (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, modification,
_renewal, addition, supplement, extension, acceleration or waiver
_of, or any consent to departure from, this Agreement or any other
_Document; (iii) any subordination, compromise, exchange, release,
_nonperfection or liquidation of any collateral, or any release,
_amendment or waiver of, or consent to departure from, any other
_guaranty, for any or all of the Obligations; (iv) any exercise or
_nonexercise by the Agent or Issuer of any right or privilege
_under this Agreement or any of the other Documents; (v) any
_bankruptcy, insolvency, reorganization, composition, adjustment,
_dissolution, liquidation or other like proceeding relating to the
_Company, any other Bank, the Issuer or the Agent or any action
_taken with respect to this Agreement by any trustee, receiver or
_court in any such proceeding, whether or not such Bank shall have
_had notice or knowledge of any of the foregoing; (vi) any
_assignment or other transfer by the Agent, the Issuer or any
_other Bank, in whole or in part, of its rights in respect of the
_Obligations or this Agreement or any of the other Documents;
_(vii) any acceptance of partial performance of the Obligations;
_(viii) the failure of any party or parties to execute this
_Agreement or any other Document; (ix) any other circumstance that
_might otherwise constitute a defense available to, or a discharge
_of, the Company, any Bank, the Agent or the Issuer; or (x) any of
_the circumstances referred to in Section 2.09(c). The provisions
_of this Section 2.10 shall survive the payment of all Obligations
_and the occurrence of the Termination Date.
_
_ (D) NON-RECEIPT OF FUNDS. Unless the Agent shall have
_received notice from the Bank prior to the date of any
_reimbursement of a Letter of Credit hereunder that the Bank will
_not make available to the Agent such Bank's ratable portion of
_such reimbursement, the Agent may assume that the Bank has made
_such portion available to the Agent on such date and the Agent
_may (but shall not be so required), in reliance upon such
_assumption, distribute a corresponding amount to the Issuer on
_such due date. If and to the extent such Bank shall not have
_made such portion available to the Agent, such Bank shall repay
_to the Agent on demand such corresponding amount, together with
_interest thereon for each day from the date such amount is
_distributed to the Issuer until the date such Bank repays such
_amount to the Agent, at the Fed Funds Rate.
_
_ (E) RETURN OF PAYMENTS. In the event that any payment
_or reimbursement made by or on behalf of the Company in
_connection with any Letter of Credit is rescinded or must
_otherwise be restored or returned to the Company or other
_relevant party, as applicable, including as a result of any
_insolvency, bankruptcy or reorganization or similar proceedings
_in respect of the Company, the obligations of the Banks under
_this Article II in respect of such rescinded, restored or
_returned payment shall be reinstated in full and the Banks shall
_be liable to indemnify the Issuer hereunder as fully as if such
_payment had never been made.
_
_ (F) BANK AUTHORITY AND OBLIGATIONS, ETC. Each Bank
_represents and warrants to the Issuer (i) that it has full power,
_authority and legal right to execute and deliver this Agreement
_and participate in the Letters of Credit as provided herein and
_to perform and observe the terms and conditions hereof; (ii) that
_it has taken all necessary legal and corporate action to
_authorize the execution and delivery of this Agreement and the
_performance and observance of the terms and conditions hereof;
_and (iii) that this Agreement constitutes the legal, valid and
_binding obligation of such Bank enforceable in accordance with
_the terms hereof except as such enforceability may be limited by
_application of any bankruptcy, receivership, conservatorship,
_reorganization or other similar laws for the relief of debtors,
_or by application of general principles of equity. Without
_limiting any other provisions hereof or any other obligations of
_the Banks or of the Company, the Banks shall from time to time
_indemnify the Issuer and hold the Issuer harmless on demand (to
_the extent that the Company has not done so) against any
_liabilities, costs, claims, expenses, suits, or damages of
_whatsoever nature incurred or suffered by the Issuer: (i) in
_connection with or relating to the Letters of Credit to the
_extent of such Bank's Percentage Share; or (ii) as a result of
_the enforcement hereof or such Bank's failure to make timely
_payment to the Issuer on the relevant date of any amount due from
_such Bank pursuant hereto (including without limitation the
_Issuer's costs of funding any unpaid portion of such amount as
_notified by the Issuer to such Bank from such relevant date until
_the date of payment in full by such Bank of any such unpaid
_amounts to the Issuer hereunder). The indemnification set forth
_in this paragraph shall survive the termination of this Agreement
_and the payment of all amounts due in connection with the Credit
_Agreement.
_
_ 2.11 PAYMENTS TO BANKS.
_
_ (A) CHARGES AND EXPENSES. Reimbursements received by
_the Agent from the Company for charges and expenses incurred for
_the issuance, amendment, and payment of Letters of Credit shall
_be distributed first, to the charges and expenses incurred by the
_Issuer, and second, to each Bank in proportion to the ratio of
_(i) the unreimbursed charges and expenses incurred in connection
_with Letters of Credit participated in by such Bank, to (ii) the
_aggregate amount of unreimbursed charges and expenses incurred in
_connection with Letters of Credit then outstanding.
_
_ (B) PAYMENTS RECEIVED. Any payments made to the Agent
_or hereunder for its own account or for the account of the Issuer
_or the Banks, as relevant, shall be applied FIRST against costs,
_expenses and indemnities (other than indemnities in respect of
_drawings under Letters of Credit) due hereunder (to the extent
_the Agent has been notified such amounts are due); SECOND against
_fees due to the Agent and the Issuer and the Banks; THIRD against
_interest; FOURTH against amounts due in respect of drawings under
_Letters of Credit; and FIFTH against any other amounts payable or
_to be deposited hereunder. If any payment is insufficient to pay
_any such category in full, the Agent shall apply the payment
_received pro rata on the basis of the amount due to each party
_entitled to payment in such category.
_
_ 2.12 STATEMENTS OF CHARGES AND EXPENSES. Each Bank shall
_deliver to the Agent, on or before the fifth Business Day of each
_calendar quarter, a statement of the charges and expenses for the
_preceding calendar quarter for which such Bank seeks
_reimbursement pursuant to subsection 2.3(c), provided that a
_Bank's failure to provide such statement by such date shall not
_impair its rights to the relevant payment. The Agent shall then
_bill the Company in accordance with subsection 2.3(c).
_
_ 2.13 SHARING OF PAYMENTS, ETC. If, other than as expressly
_contemplated elsewhere herein, any Bank shall obtain on account
_of its Letter of Credit Obligations any payment (whether
_voluntary, involuntary, through the exercise of any right of set-
_off, or otherwise) in excess of its Percentage Share of payments
_on account of the Letter of Credit Obligations obtained by all
_the Banks, such Bank shall forthwith (a) notify the Agent of such
_fact, and (b) purchase from the other Banks such participations
_in the Letter of Credit Obligations 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 the purchasing Bank, such purchase shall to that extent be
_rescinded and each other Bank shall repay to the purchasing Bank
_the purchase price paid thereto together with an amount equal to
_such paying Bank's Percentage Share (according to the proportion
_of (i) the amount of such paying 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. The Company
_agrees that any Bank so purchasing a participation from another
_Bank pursuant to this Section 2.13 may, to the fullest extent
_permitted by law, exercise all its rights of payment (including
_the right of set-off, but subject to Section 9.9) with respect to
_such participation as fully as if such Bank were the direct
_creditor of the Company in the amount of such participation. The
_Agent will keep records (which shall be conclusive and binding in
_the absence of manifest error), of participations purchased
_pursuant to this Section 2.13 and will in each case notify the
_Banks following any such purchases.
_
_ 2.14 EXTENSION OF TERMINATION DATE.
_
_ (A) The Company shall notify the Agent, not more than
_120 days or less than 90 days prior to the original Termination
_Date, whether or not the Company wishes to extend the Termination
_Date for an additional one-year period; provided, that, if the
_Company fails so to notify the Agent, the Company shall be deemed
_to have given notice that the Company does not wish to extend the
_Termination Date. Upon receipt of any such notice requesting
_such extension, the Agent shall send a notice to the Issuer and
_the Banks requesting instructions as to whether or not the Issuer
_and the Banks consent (in their sole discretion) to the extension
_of the Termination Period for an additional one-year period. The
_Issuer and each Bank shall notify the Agent, in writing, whether
_or not it wishes so to extend the Commitment Period within thirty
_(30) Business Days of the date of the Agent's notice, and, if the
_Issuer or any Bank fails so to notify the Agent within thirty
_(30) Banking Days of the date of the Agent's notice, such Issuer
_or Bank shall be deemed to have withheld its consent to the
_extension of the Termination Date for an additional one-year
_period.
_
_ (B) If the Issuer and all of the Banks consent to the
_extension of the Termination Date, then the Termination Date
_shall be extended for an additional one-year period measured from
_the then scheduled Termination Date thereof; provided, however,
_that in no event shall the Termination Date be extended to a date
_later than September 22, 1997.
_
_ (C) If (x) the Company gives (or is deemed to have
_given) the Agent timely notice that the Company does not wish to
_extend the Termination Date, or (y) the Company has failed to
_give the Agent timely notice as provided by subsection 2.14(a) by
_90 days prior to the original Termination Date, or (z) the Banks
_and the Issuer and the Agent do not unanimously consent (which
_consent may be given or withheld in their respective sole
_discretion) to the extension of the Termination Date as
_aforesaid, then (i) such date shall not be further extended, (ii)
_the Agent shall so notify the Issuer, and (iii) the Issuer may
_give notice to each beneficiary of any outstanding Letter of
_Credit that contains renewal or extension provisions that such
_Letter of Credit shall not be renewed beyond the then scheduled
_Termination Date.
_
_ARTICLE III. YIELD PROTECTION.
_
_ 3.1 INCREASED COSTS AND REDUCTION OF RETURN (a) If the
_Issuer, any Bank or participant of a Bank shall determine that,
_due to either (i) the introduction of or any change 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 such Issuer, Bank or
_participant of agreeing to issue, issuing or maintaining any
_Letter of Credit or of agreeing to make or making, funding or
_maintaining any unpaid drawing under any Letter of Credit or any
_other extension of credit under this Agreement, then the Company
_shall be liable for, and shall from time to time, upon demand
_therefor by such Issuer or Bank (or, in the case of a
_participant, by the Bank from which it has purchased its
_interest,) with a copy of such demand to the Agent), pay to the
_Agent for the account of such Issuer, Bank or participant,
_additional amounts as are sufficient to compensate such Issuer,
_Bank or participant for such increased costs. (b) If the Issuer,
_any Bank or participant of a Bank shall have determined that the
_introduction of any applicable law, rule, regulation or guideline
_regarding capital adequacy, or any change therein or any change
_in the interpretation or administration thereof by any central
_bank or other Governmental Authority charged with the
_interpretation or administration thereof, or compliance by such
_Issuer, Bank or participant (or its Issuing Office) or any
_corporation controlling such Issuer, Bank or participant, with
_any request, guideline or directive regarding capital adequacy
_(whether or not having the force of law) of any such central bank
_or other authority, affects or would affect the amount of capital
_required or expected to be maintained by such Issuer, Bank or
_participant or any corporation controlling the same and (taking
_into consideration such Issuer's, Bank's, participant's or such
_corporation's policies with respect to capital adequacy and
_desired return on capital) determines that the amount of such
_capital is increased as a consequence of its obligations under
_this Agreement, then, upon demand of such Issuer, Bank or
_participant, the Company shall immediately pay to such Issuer,
_Bank or participant, from time to time as specified by such
_Issuer, Bank or participant, additional amounts sufficient to
_compensate it for such increase.
_
_ 3.2 CERTIFICATES OF BANKS. The Issuer or any Bank claiming
_reimbursement or compensation pursuant to this Article III shall
_at the request of the Company deliver to the Company (with a copy
_to the Agent) a certificate setting forth in reasonable detail
_the amount payable to such Issuer or Bank (or its participant)
_hereunder and such certificate shall be conclusive and binding on
_the Company in the absence of manifest error.
_
_ 3.3 SURVIVAL. The agreements and obligations of the
_Company in this Article III shall survive the payment of all
_other Obligations.
_
_ARTICLE IV. CONDITIONS PRECEDENT.
_
_ 4.1 CONDITIONS OF INITIAL CREDIT EXTENSIONS. The
_obligation of the Issuer to make its initial Credit Extension
_hereunder is subject to the condition that the Agent shall have
_received on or before the Closing Date all of the following, in
_form and substance satisfactory to the Agent and in sufficient
_copies for the Issuer and each Bank:
_
_ (A) copies of the resolutions of the board of
_ directors of the Company approving and authorizing the
_ execution, delivery and performance by the Company of this
_ Agreement and the other Documents to be delivered hereunder,
_ and authorizing the incurrence of the Company's obligations
_ in respect of the Letters of Credit, certified as of the
_ Closing Date by the Secretary or an Assistant Secretary of
_ the Company;
_
_ (B) a certificate of the Secretary or Assistant
_ Secretary of the Company, certifying the names and true
_ signatures of the officers of the Company authorized to
_ execute and deliver, as applicable, this Agreement, and all
_ other Documents to be delivered hereunder;
_
_ (C) a certificate from the Company's certified
_ public accountants or the Company's President, Chief
_ Financial Officer, Treasurer or Controller that: (i) the
_ Company for the fiscal quarter ended July 2, 1995 maintained
_ a Net Worth in an amount which satisfies the requirements of
_ section 6.8, and (ii) as of July 2, 1995, the Company
_ maintained a Quick Ratio of not less than 0.75 to 1.0;
_
_ (D) a favorable opinion of counsel to the Company
_ (reasonably acceptable to the Agent) and addressed to the
_ Agent, the Issuer and the Banks substantially in the form of
_ EXHIBIT D and addressing such other matters as the Agent may
_ reasonably request;
_
_ (E) the Company shall have paid all costs,
_ accrued and unpaid fees and expenses (including legal fees
_ and expenses) to the extent then due and payable on the
_ Closing Date, including any arising under Sections 2.3, 2.4
_ and 9.4; and
_
_ (F) evidence satisfactory to the Agent of the
_ agreement of MKE to cancel and return the Existing Letters
_ of Credit.
_
_ 4.2 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of
_the Issuer to make any Credit Extension to be made by it
_hereunder (including its initial Credit Extension) is subject to
_the fulfilment of the following conditions precedent on the
_relevant date of such Credit Extension:
_
_ (A) the representations and warranties made by
_ the Company contained in Article V shall be true and correct
_ on and as of such Credit Extension date with the same effect
_ as if made on and as of such Credit Extension date (except
_ to the extent such representations and warranties expressly
_ refer to an earlier date, in which case they shall be true
_ and correct as of such earlier date);
_
_ (B) no Default or Event of Default shall exist or
_ shall result from such Credit Extension;
_
_ (C) the sum of (i) the maximum face amount of all
_ Letters of Credit to be issued on that day plus (ii) the
_ amount of the Letter of Credit Obligations outstanding on
_ that day (as a result of issuances, amendments or otherwise)
_ shall not exceed the Aggregate Commitment;
_
_ (D) the Agent, the Issuer and each Bank shall
_ have received to its satisfaction such confirmations of the
_ foregoing, and such other documents, opinions and
_ information (including beneficiary consents) as the Agent,
_ the Issuer (through the Agent) or such Bank (through the
_ Agent) may reasonably request; and
_
_ (E) the Issuer shall not have determined that it
_ is unlawful for it to make the proposed Credit Extension.
_
_Each request for a Credit Extension submitted by the Company
_hereunder shall constitute a representation and warranty by the
_Company hereunder, as of the date of each such notice and as of
_the date of such Credit Extension, that the conditions in this
_Section 4.2 are satisfied.
_
_ARTICLE V. REPRESENTATIONS AND WARRANTIES
_
_ The Company represents and warrants to the Agent, the Issuer
_and each Bank, on the date hereof and on the date of each Credit
_Extension, that:
_
_ 5.1 CORPORATE EXISTENCE AND POWER; CONDUCT OF BUSINESS.
_The Company: (a) is a corporation duly organized, validly
_existing and in good standing under the laws of the jurisdiction
_of its incorporation; (b) has the power and authority and all
_governmental licenses, authorizations, consents and approvals to
_own its assets, carry on its business and to execute, deliver,
_and perform its obligations under, the Documents; (c) is duly
_qualified as a foreign corporation licensed and in good standing
_under the laws of each jurisdiction where its ownership, lease or
_operation of property or the conduct of its business requires
_such qualification; and (d) is in compliance with all
_Requirements of Law. The Company has good and marketable title
_to all the property and assets, ownership of which is reflected
_on its most recent balance sheets referred to above, except for
_assets or properties that have been disposed of in the ordinary
_course of business. All such properties and assets are insured,
_and insurance against operational risks and liabilities is in
_force, with coverage and in amounts normal and customary in
_accordance with sound management in the fields of operations in
_which the Company is engaged and for the property and assets
_owned.
_
_ 5.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The
_execution, delivery and performance by the Company of this
_Agreement, and any other Document to which the Company is party,
_have been duly authorized by all necessary corporate action, and
_do not and will not: (a) contravene the terms of any of the
_certificate of incorporation or bylaws of the Company; (b)
_conflict with or result in any breach or contravention of any
_material lease, contract, indenture or other document, agreement
_or instrument to which the Company is a party or any order,
_injunction, writ or decree of any Governmental Authority to which
_the Company or its property is subject; or (c) violate any
_Requirement of Law.
_
_ 5.3 BINDING. This Agreement and each other Document to
_which the Company is a party constitute the legal, valid and
_binding obligations of the Company, enforceable against the
_Company in accordance with their respective terms, except as
_limited by bankruptcy, insolvency or other laws affecting the
_enforcement of creditors' rights generally and general principles
_of equity.
_
_ 5.4 LITIGATION. As of the date hereof and as of the
_Closing Date, except as specifically disclosed in the Company's
_Form 10K for the year ended March 31, 1995 or its Form 10Q for
_the quarter ended July 2, 1995 on file with the Securities and
_Exchange Commission and previously provided to the Agent, the
_Issuer and the Banks, there are no actions, suits, proceedings,
_claims or disputes pending, or to the best knowledge of the
_Company, threatened or contemplated, at law, in equity, in
_arbitration or before any Governmental Authority, against the
_Company or any of its properties which, if determined adversely
_to the Company, would reasonably be expected to have a Material
_Adverse Effect.
_
_ 5.5 NO DEFAULT. The Company is not in default under or
_with respect to any lease, contract, indenture or other document,
_agreement or instrument to which it is a party in any respect
_which, individually or together with all such defaults, would
_reasonably be expected to have a Material Adverse Effect.
_
_ 5.6 USE OF LETTERS OF CREDIT. The Letters of Credit and
_all other extensions of credit hereunder are intended to be and
_shall be used solely (a) to support importation by the Company or
_its Subsidiaries of equipment and inventory and products
_manufactured by or for MKE or its affiliates, and (b) not in
_contravention of any Requirement of Law. The Company is not
_engaged in the business of extending credit for the purpose of
_purchasing or carrying margin stock within the meaning of
_Regulations G, T, U or X of the Federal Reserve Board. No part
_of the proceeds of the Letters of Credit will be used to purchase
_or carry any margin stock or to extend credit to others for the
_purpose of purchasing or carrying any margin stock, except in
_accordance with the provisions of Regulations G, T, U or X of the
_Federal Reserve Board.
_
_ 5.7 NO MATERIAL ADVERSE EFFECT. Since the date of the most
_recent audited financial statements provided by the Company to
_Agent and the Banks, there has been no Material Adverse Effect.
_
_ 5.8 FINANCIAL STATEMENTS. The Company has delivered to the
_Agent and each of the Banks copies of the unaudited consolidated
_balance sheet of the Company as at the end of, and its related
_unaudited consolidated statements of income, changes in
_shareholder's equity and cash flow of the Company for, the
_quarterly period ended July 2, 1995 certified by the Chief
_Financial Officer or Controller of the Company. Such financial
_statements have been accurately prepared from the books and
_records of the Company. There are no material liabilities,
_contingent or otherwise, of the Company as of such date, not
_reflected in such balance sheet of the Company as of such date.
_Since such date, there have not been any changes (whether or not
_covered by insurance) in assets, liabilities or financial
_position of the Company from those set forth in such balance
_sheet of the Company as of such date, other than changes in the
_ordinary course of business which have not, either individually
_or in the aggregate, been materially adverse. The Company does
_not know of any fact (other than matters of a general economic
_nature) that materially affects adversely the business,
_operations or properties of the Company, or the ability of the
_Company to perform its obligations under this Agreement.
_
_ 5.9 PARI PASSU. The obligations of the Company hereunder
_rank at least pari passu in right of payment and priority with
_the Company's other senior (unsecured) obligations.
_
_ 5.10 GOVERNMENTAL REGULATION. Neither the Company nor any
_Subsidiary of the Company is subject to regulation under the
_Public Utility Holding Company Act of 1934, the Federal Power
_Act, or the Investment Company Act of 1940, each as amended, or
_to any other federal or state statute or regulation limiting its
_ability to incur debt or to create liens on any of its properties
_or assets to secure debt.
_
_ 5.11 INFORMATION. Any and all information delivered by the
_Company to the Agent, the Issuer or any Bank in connection with
_this Agreement and the Letters of Credit is, taken as a whole,
_true and correct in all material respects, contains no misleading
_statement and does not omit to make any statement necessary to
_make such information not misleading.
_
_ARTICLE VI. COVENANTS.
_
_ The Company covenants and agrees that, so long as any Bank
_shall have any Commitment hereunder, any Letter of Credit shall
_be outstanding hereunder or any other Obligation shall remain
_unpaid or unsatisfied, unless the Majority Banks waive compliance
_in writing:
_
_ 6.1 FINANCIAL STATEMENTS; OTHER INFORMATION. The Company
_shall furnish to the Agent, with sufficient copies for each Bank
_and the Issuer: (a) as soon as available, but not later than 90
_days after the end of each fiscal year, copies of the audited
_consolidated financial statements of the Company for such fiscal
_year, and accompanied by the unqualified opinion (or a qualified
_opinion reasonably acceptable to the Agent) of Ernst & Young or
_another nationally-recognized independent public accounting firm,
_in each case together with: (i) certificates of all such
_accountants to the Agent stating that, in making the examination
_necessary for their audit, nothing has come to their attention
_that would lead or cause them to believe that the Company has
_failed to comply with the provisions of Section 6.8 or 6.9, with
_the understanding that such audit was not directed toward
_obtaining knowledge of any such non-compliance, or if any such
_non-compliance has come to their attention, a statement as to the
_nature thereof, and (ii) a certificate executed by the Company's
_President, Chief Financial Officer, Treasurer or Controller
_setting forth all financial calculations necessary to determine
_compliance with the terms of this Agreement and stating that no
_Default or Event of Default has occurred hereunder (or describing
_in detail each Default or Event of Default, if any, that has
_occurred) (a "Compliance Certificate") for the fiscal quarter
_most recently ended; (b) as soon as available, but not later than
_60 days after the end of each of the first three fiscal quarters
_of each year, (i) copies of the unaudited consolidated financial
_statements of the Company for such quarter, which may be in the
_form of a Form 10-Q Quarterly Report filed for such period with
_the Securities Exchange Commission ("SEC"), and (ii) a Compliance
_Certificate for the fiscal quarter most recently ended; (c)
_promptly after the same are sent, copies of all financial
_statements and reports which the Company sends to its
_shareholders, and within five days after the same are filed
_copies of all financial statements, regular, periodical or
_special reports and other items which the Company may make to, or
_file with, the SEC, including each Form 8-K Current Report, Form
_10-K Annual Report, Form 10-Q Quarterly Report, Annual Report to
_Shareholders, proxy statement and registration statement; and
_(d) such other financial or other information pertaining to the
_Company and its Subsidiaries and affiliates and the transactions
_contemplated hereby as the Agent, the Issuer or any Bank may
_reasonably request.
_
_ 6.2 NOTICES. The Company shall promptly notify the Agent
_and each Bank of: (a) the occurrence of any Default or Event of
_Default, and of the occurrence or existence of any event or
_circumstance that is reasonably likely to become an Event of
_Default; (b) the commencement of, or any material development in,
_any litigation or proceeding affecting the Company or any
_Subsidiary which, if adversely determined, would reasonably be
_expected to have a Material Adverse Effect; (c) the occurrence of
_any "Default" or "Event of Default" under (and as defined in) the
_Existing Credit Facility; (d) the delivery of each "Compliance
_Certificate" (as defined in the Existing Credit Facility) or
_similar certificate required to be delivered by the Company
_pursuant to the Existing Credit Facility, together with a copy
_thereof; and (e) any Material Adverse Effect subsequent to the
_date of the most recent audited financial statements of the
_Company delivered to the Banks pursuant to subsection 6.1.
_
_ 6.3 PRESERVATION OF CORPORATE EXISTENCE, ETC. The Company
_shall: (a) preserve and maintain in full force and effect its
_corporate existence and good standing under the laws of its state
_or jurisdiction of incorporation; and (b) preserve and maintain
_in full force and effect all rights, privileges, qualifications,
_permits, licenses and franchises necessary or desirable in the
_normal conduct of its business.
_
_ 6.4 COMPLIANCE WITH LAWS. The Company shall comply in all
_material respects with all Requirements of Law of any
_Governmental Authority having jurisdiction over it or its
_business, except such as may be contested in good faith by the
_Company.
_
_ 6.5 PAYMENT OF TAXES, ETC. The Company will pay and
_discharge all taxes, assessments and governmental charges or
_levies imposed upon it or upon its income or profits, prior to
_the date on which penalties attach thereto, except to the extent
_such taxes, assessments or governmental charges or levies are
_being contested in good faith and are adequately reserved against
_in accordance with GAAP consistently applied.
_
_ 6.6 KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company
_will keep adequate records and books of account, in which
_complete entries will be made, reflecting all financial
_transactions of the Company in accordance with GAAP.
_
_ 6.7 INSPECTION RIGHTS. The Company will at any reasonable
_time and from time to time upon reasonable prior notice, permit
_the Agent, the Issuer and the Banks or any of their respective
_agents or representatives to visit the Company's offices and
_examine and make copies of and abstracts from the records and
_books of account of the Company and discuss the affairs of the
_Company with its officers.
_
_ 6.8 NET WORTH. The Company shall maintain a Net Worth at
_all times during any fiscal quarter of 75% of no less than (a)
_the amount of its Net Worth as at the end of its fiscal quarter,
_ending January 2, 1995, plus (b) 75% of Net Income, accrued
_quarterly, and 100% of the net proceeds of all equity from the
_conversion of existing subordinated indebtedness or a secondary
_offering of stock having net proceeds to the Company in excess of
_$10 million.
_
_ 6.9 QUICK RATIO. The Company shall not permit its Quick
_Ratio to be less than 0.75 to 1.0 at any time.
_
_ARTICLE VII. EVENTS OF DEFAULT.
_
_ 7.1 EVENT OF DEFAULT. Any of the following events shall
_constitute an "Event of Default":
_
_ (A) NON-PAYMENT. The Company fails to pay, (i)
_ when and as required to be paid herein, any amount paid by
_ the Issuer or any Bank under or in connection with a Letter
_ of Credit, or (if) any interest, fee or any other amount
_ payable hereunder or pursuant to any other Document, when
_ and as required to be paid herein or therein; or
_
_ (B) REPRESENTATION OR WARRANTY; INFORMATION. Any
_ representation or warranty by the Company made or deemed
_ made herein, in any Document or which is contained in any
_ certificate, document or financial or other statement, by
_ the Company, or its officers, furnished at any time in or
_ under or in connection with this Agreement or any Document,
_ shall prove to have been false or misleading in any material
_ respect on or as of the date made or deemed made; or any
_ financial or other information delivered by the Company or
_ any officer to the Agent or Bank hereunder or in connection
_ herewith, shall prove to be false or misleading in any
_ material respect; or
_
_ (C) BREACH OF COVENANTS. The Company (i) fails
_ to perform or observe any term or covenant set forth in
_ Sections 6.8 or 6.9 hereof; or (ii) fails to perform or
_ observe any other term or covenant contained in this
_ Agreement or any Document and such failure shall continue
_ for 15 Business Days after the earlier of the date the
_ Borrower obtains knowledge or notice of such failure or the
_ date the Agent gives Borrower notice of such failure; or
_
_ (D) AGREEMENTS, ETC. This Agreement or any other
_ Document ceases to be in full force and effect or shall be
_ declared null and void, or the validity or enforceability
_ thereof shall be contested by the Company; or
_
_ (E) CROSS-DEFAULT. The Company or any of its
_ Subsidiaries (i) fails to make any payment of principal,
_ interest, reimbursements of amounts paid under letters of
_ credit, or the like in respect of, or "Origination Fees" or
_ "Commitment Fees" under (and as defined in), the Existing
_ Credit Facility and such failure continues after the
_ applicable grace or notice period, if any, specified in the
_ document relating thereto; or (ii) (A) fails to perform or
_ observe any other condition or covenant, or any other event
_ shall occur or condition exist, under any agreement or
_ instrument relating to the Existing Credit Facility, and
_ such failure continues after the applicable grace or notice
_ period, if any, specified in the document relating thereto,
_ and (B) the holder or holders of such indebtedness or
_ beneficiary or beneficiaries of such indebtedness (or a
_ trustee or agent on behalf of such holder or holders or
_ beneficiary or beneficiaries) causes such indebtedness to be
_ accelerated or otherwise declared to be due and payable
_ prior to its stated maturity; or (iii) fails to make a
_ payment or payments in an aggregate amount of $1,000,000 or
_ more when due under the terms of any bond, debenture, note
_ or other evidence of indebtedness for borrowed money or
_ credit extended to be paid by such Person (excluding this
_ Agreement and the Existing Credit Facility and leases for
_ real and personal property), and the effect of such failure
_ or default is to cause such indebtedness to be accelerated
_ or otherwise declared to be due and payable prior to its
_ stated maturity; or (iv) or fails to pay before the same
_ becomes materially overdue any material amount payable to
_ MKE or any Subsidiary of MKE, or any drawing is made, or
_ notice of drawing is given, under a Letter of Credit).
_
_ (F) BANKRUPTCY OR INSOLVENCY. The Company or any
_ of its Material Subsidiaries (i) admits in writing its
_ inability to pay its debts as they become due, subject to
_ applicable grace periods, if any, whether at stated maturity
_ or otherwise; (ii) voluntarily ceases to conduct its
_ business in the ordinary course; (iii) commences any
_ Insolvency Proceeding with respect to itself; or (iv) takes
_ any action to effectuate or authorize any of the foregoing;
_ or
_
_ (G) INVOLUNTARY PROCEEDINGS. (i) Any involuntary
_ Insolvency Proceeding is commenced or filed against the
_ Company or any Subsidiary of the Company and shall remain
_ undismissed for a period of 60 days, or any writ, judgment,
_ warrant of attachment, execution or similar process, is
_ issued or levied against a substantial part of the Company's
_ or any of its Subsidiaries' properties or assets and shall
_ remain unpaid, unbonded, unvacated or unstayed for a period
_ of 60 days after the entry thereof; (ii) the Company or any
_ of its Subsidiaries admits the material allegations of a
_ petition against it in any Insolvency Proceeding or an order
_ for relief (or similar order under non-U.S. law) is ordered
_ in any Insolvency Proceeding; or (iii) the Company or any of
_ its Material Subsidiaries acquiesces in the appointment of a
_ receiver, trustee, custodian, conservator, liquidator,
_ mortgagee in possession (or agent therefor), or other
_ similar Person for itself or a substantial portion of its
_ properties or business.
_
_ 7.2 REMEDIES. If any Event of Default occurs, the Agent
_shall, at the request of, or may, with the consent of, the
_Majority Banks, (a) declare the Commitment of each Bank to be
_terminated, whereupon such unutilized Commitments shall forthwith
_be terminated and the Issuer shall have no further obligation to
_issue new or amend existing Letters of Credit hereunder;
_(b) declare an amount equal to the Letter of Credit Obligations
_(whether or not any beneficiary shall have presented, or shall be
_entitled at such time to present, the drafts or other documents
_required to draw under the outstanding Letters of Credit), all
_unreimbursed drawings under the Letters of Credit and all other
_Obligations (the "Total Amount"), to be immediately due and
_payable, without presentment, demand, protest or other notice of
_any kind, all of which are hereby expressly waived by the
_Company, upon which the Company shall immediately (A) pay all
_amounts owing under this Agreement and the other Documents and
_(B) immediately pay and deposit into the Letter of Credit
_Account (as defined below) with the Agent, cash in the amount
_determined by the Agent to be the aggregate maximum amount of the
_undrawn Letters of Credit and the Issuer's maximum contingent
_liability thereunder and all other Letter of Credit Obligations
_then outstanding, to be applied by the Agent (for the benefit of
_the Banks and the Issuer) to the payment and reimbursement of
_drawings thereunder and other amounts owing by the Company with
_respect to Letter of Credit Obligations (as provided below); and
_(c) exercise on behalf of itself, the Issuer and the Banks and
_together with such parties, all rights and remedies available to
_the Agent, the Issuer and the Banks under the Documents or
_applicable law; provided, however, that upon the occurrence of
_any event specified in subsection 7.1(f) or (g), the result which
_would otherwise occur only upon giving of notice by the Agent to
_the Company as specified above shall occur automatically, without
_the giving of notice or further act of the Agent or any Bank.
_
_ At the time that the Company is required to make any deposit
_pursuant to Section 7.2(b)(B), the Company shall deposit all such
_amounts into such account as the Agent may specify at its San
_Francisco Branch (the "Letter of Credit Account"). All amounts
_on deposit in the Letter of Credit Account shall be held by the
_Agent as security for the Company's obligations to reimburse the
_Agent, the Issuer and the Banks, as applicable, in respect of
_drawings under Letters of Credit as hereinafter provided.
_
_ The Company hereby pledges, assigns and grants to the Agent
_on its own behalf and on behalf of the Issuer and the Banks a
_security interest in amounts from time to time on deposit in the
_Letter of Credit Account for the obligation of the Company to
_reimburse the Agent, the Issuer and the Banks, as applicable, in
_the event of any drawing under the Letters of Credit and as
_security for the Company's Obligations. Upon any drawing under
_any outstanding Letter of Credit in respect of which any amounts
_have been deposited to the Letter of Credit Account, the Agent
_shall apply such amounts to reimburse the Issuer, and if the
_Issuer has been reimbursed by any Bank, the relevant Bank for the
_amount of such drawing. In the event of the cancellation or
_termination of any Letter of Credit in respect of which any
_amounts have been deposited to the Letter of Credit Account, or
_in the event of any reduction in the maximum amount available at
_any time for drawing under such Letter of Credit, the Agent shall
_apply the amount remaining in the Letter of Credit Account in
_respect of such Letter of Credit (as the amounts in the following
_categories are calculated by the Agent), FIRST to reimburse the
_Issuer and the Banks for any unreimbursed drawings under such
_Letter of Credit, SECOND to secure with cash any other
_outstanding Letters of Credit and all Letter of Credit
_Obligations, THIRD, to the payment in full of all other
_Obligations of the Company to the Agent and Issuer and the Banks,
_and FOURTH, after indefeasible payment and application in full of
_all such amounts (including in respect of all Letter of Credit
_Obligations), any excess to the Company (without interest).
_
_ The Company agrees to execute and deliver from time to time
_all such documents as shall be reasonably requested by the Agent
_for the establishment and maintenance of the Letter of Credit
_Account and for the perfection of the security interest granted
_therein by the Company.
_
_ARTICLE VIII. THE AGENT.
_
_ 8.1 APPOINTMENT AND AUTHORIZATION. Each Bank hereby
_appoints, designates and authorizes the Agent to take such action
_on its behalf under the provisions of this Agreement and each
_other Document and to exercise such powers and perform such
_duties as are expressly delegated to it by the terms of this
_Agreement or any other Document, together with such powers as are
_reasonably incidental thereto. Notwithstanding any provision to
_the contrary contained elsewhere in this Agreement or in any
_other Document, the Agent shall not have any duties or
_responsibilities, except those expressly set forth herein, nor
_shall the Agent have or be deemed to have any fiduciary
_relationship with the Issuer, any Bank or the Company, and no
_implied covenants, functions, responsibilities, duties,
_obligations or liabilities shall be read into this Agreement or
_any other Document or otherwise exist against the Agent.
_
_ 8.2 DELEGATION OF DUTIES. The Agent may execute any of its
_duties under this Agreement or any other Document by or through
_agents, employees or attorneys-in-fact and shall be entitled to
_advice of counsel concerning all matters pertaining to such
_duties. The Agent shall not be responsible for the negligence or
_misconduct of any agent or attorney-in-fact that it selects with
_reasonable care.
_
_ 8.3 LIABILITY OF AGENT AND ISSUER. None of the Agent, the
_Issuer, their respective affiliates, or any of their respective
_officers, directors, employees, agents, or attorneys-in-fact
_shall (i) be liable for any action taken or omitted to be taken
_by any of them under or in connection with this Agreement or any
_other Document (except for its own gross negligence or willful
_misconduct, it being agreed that the Issuer's exclusive reliance
_on documents presented in connection with a Letter of Credit
_shall not be deemed wilful misconduct or gross negligence,
_whether or not any such document, or any statement contained
_therein, proves to be forged, fraudulent, invalid, insufficient,
_untrue or inaccurate in any respect), or (ii) be responsible in
_any manner to any of the Banks for any recital, statement,
_representation or warranty made by the Company or any Subsidiary,
_or affiliate of the Company, or any officer thereof, contained in
_this Agreement or in any other Document, or in any certificate,
_report, statement or other document referred to or provided for
_in, or received by the Agent or the Issuer under or in connection
_with, this Agreement or any other Document, or for the value of
_any collateral or the validity, effectiveness, genuineness,
_enforceability or sufficiency of this Agreement or any other
_Document, or for any failure of the Company or any other party to
_any Document to perform its obligations hereunder or thereunder.
_No such Person shall be under any obligation to any Bank to
_ascertain or to inquire as to the observance or performance of
_any of the agreements contained in, or conditions of, this
_Agreement or any other Document, or to inspect the properties,
_books or records of the Company or any of its Subsidiaries or
_affiliates.
_
_ 8.4 RELIANCE BY AGENT. The Agent shall be entitled to
_rely, and shall be fully protected in relying, upon any writing,
_resolution, notice, consent, certificate, affidavit, letter,
_telegram, facsimile, telex or telephone message, statement or
_other document or conversation believed by it to be genuine and
_correct and to have been signed, sent or made by the proper
_Person or Persons, and upon advice and statements of legal
_counsel (including counsel to the Company), independent
_accountants and other experts selected by the Agent. The Agent
_shall be fully justified in failing or refusing to take any
_action under this Agreement or any other Document unless it shall
_first receive such advice or concurrence of the Majority Banks as
_it deems appropriate and, if it so requests, it shall first be
_indemnified to its satisfaction by the Banks against any and all
_liability and expense which may be incurred by it by reason of
_taking or continuing to take any such action. The Agent shall in
_all cases be fully protected in acting, or in refraining from
_acting, under this Agreement or any other Document in accordance
_with a request or consent of the Majority Banks and such request
_and any action taken or failure to act pursuant thereto shall be
_binding upon all of the Banks, provided 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 any
_other Document or applicable law. For purposes of determining
_compliance with the conditions specified in Article IV, each Bank
_that has executed this Agreement shall be deemed to have
_consented to, approved or accepted or to be satisfied with each
_document or other matter required thereunder to be consented to
_or approved by or acceptable or satisfactory to such Bank, unless
_an officer of the Agent responsible for the transactions
_contemplated by the Documents shall have received notice from
_such Bank prior to the initial Credit Extension specifying its
_objection thereto and such objection shall not have been
_withdrawn by notice to the Agent to that effect.
_
_ 8.5 NOTICE OF DEFAULT. The Agent shall not be deemed to
_have knowledge or notice of the occurrence of any Default or
_Event of Default, unless the Agent shall have received written
_notice from a Bank or the Company referring to this Agreement,
_describing such Default or Event of Default and stating that such
_notice is a "notice of default". In the event that the Agent
_receives such a notice, the Agent shall promptly give notice
_thereof to the Banks. The Agent shall take such action with
_respect to such Default or Event of Default as shall be
_requested by the Majority Banks in accordance with this Agreement
_and the other Documents; provided, however, that unless and until
_the Agent shall have received any such request and is indemnified
_to the Agent's satisfaction, the Agent may (but shall not be
_obligated to) take such action, or refrain from taking such
_action, with respect to such Default or Event of Default as it
_shall deem advisable or in the best interest of the Banks.
_
_ 8.6 CREDIT DECISION. Each Bank expressly acknowledges that
_none of the Agent, its affiliates, or any of their respective
_officers, directors, employees, agents or attorneys-in-fact, has
_made any representation or warranty to it and that no act by the
_Agent hereinafter taken, including any review of the affairs of
_the Company and its Subsidiaries shall be deemed to constitute
_any representation or warranty by the Agent to any Bank. Each
_Bank represents to the Agent that it has made and will continue
_to make, independently and without reliance upon the Agent and
_based on such documents, information and investigations as it has
_deemed appropriate, its own credit analysis, and appraisal of and
_investigation into the business, prospects, operations, property,
_financial and other condition and creditworthiness of the Company
_and its Subsidiaries, and all applicable bank regulatory laws
_relating to the transactions contemplated thereby, and has made
_its own decision to enter into this Agreement and extend credit
_to the Company hereunder. The Agent shall promptly deliver to
_each Bank a copy of each notice which it receives from the
_Company pursuant to the terms of this Agreement, provided that
_the Agent shall incur no liability whatsoever for its failure to
_do so. Except for notices, reports and other documents expressly
_herein required to be furnished to the Banks by the Agent, the
_Agent shall not have any duty or responsibility to provide any
_Bank with any credit or other information concerning the
_business, prospects, operations, property, financial and other
_condition or creditworthiness of the Company which may come into
_the possession of the Agent or any of its Subsidiaries or
_affiliates.
_
_ 8.7 INDEMNIFICATION. The Banks shall indemnify upon demand
_the Agent, the Issuer, their respective affiliates, and their
_respective officers, directors, employees, agents and attorneys-
_in-fact (to the extent not reimbursed by or on behalf of the
_Company and without limiting the obligation of the Company to do
_so), ratably from and against any and all liabilities,
_obligations, losses, damages, penalties, actions, judgments,
_suits, costs, expenses and disbursements of any kind whatsoever
_which may at any time (including at any time following the
_termination of the Letters of Credit and repayment of the Letter
_of Credit Obligations) be imposed on, incurred by or asserted
_against any such Person any way relating to or arising out of
_this Agreement or any document contemplated by or referred to
_herein or therein or the transactions contemplated hereby or
_thereby or any action taken or omitted by any such Person under
_or in connection with any of the foregoing, provided, however,
_that no Bank shall be liable for the payment to any such Person
_of any portion of such liabilities, obligations, losses, damages,
_penalties, actions, judgments, suits, costs, expenses or
_disbursements resulting solely from such Person's gross
_negligence or wilful misconduct (it being agreed that the
_Issuer's exclusive reliance on documents presented in connection
_with a Letter of Credit shall not be deemed wilful misconduct or
_gross negligence, whether or not any such document, or any
_statement contained therein, proves to be forged, fraudulent,
_invalid, insufficient, untrue or inaccurate in any respect).
_Without limitation of the foregoing, each Bank shall reimburse
_the Agent and the Issuer upon demand for its ratable share of any
_costs or out-of-pocket expenses (including fees and disbursements
_of any law firm or other counsel) incurred by the Agent and the
_Issuer in connection with the preparation, execution, delivery,
_administration, modification, amendment or enforcement (whether
_through negotiations, legal or bankruptcy proceedings or
_otherwise) of, or legal advice in respect of rights or
_responsibilities under, this Agreement, any Letter of Credit or
_any other Document, or any document contemplated by or referred
_to herein to the extent that the Agent and the Issuer is not
_reimbursed for such expenses by or on behalf of the Company. The
_obligation of the Banks in this Section shall survive the payment
_of all Obligations hereunder.
_
_ 8.8 AGENT IN INDIVIDUAL CAPACITY. Sumitomo and its
_affiliates may make loans to, issue letters of credit for the
_account of, accept deposits from and generally engage in any kind
_of business with the Company and its Subsidiaries and affiliates
_as though Sumitomo were not the Agent hereunder and without
_notice to the Banks. With respect to its Letters of Credit and
_participation herein and therein, Sumitomo 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 terms
_"Bank" and "Banks" shall include Sumitomo in its individual
_capacity.
_
_ 8.9 SUCCESSOR AGENT. The Agent may, and at the request of
_the Majority Banks with cause shall, resign as Agent upon 30
_days' notice to the Banks. If the Agent shall resign as Agent
_under this Agreement, the Majority Banks shall appoint from among
_the Banks a successor agent for the Banks. If no successor Agent
_is appointed prior to the effective date of the resignation of
_the Agent, the Agent shall appoint, after consulting with the
_Banks and the Company, a successor agent from among the Banks, or
_if no Bank is willing to act as Agent, a commercial bank with at
_least $500,000,000 in assets and an office in San Francisco.
_Upon the acceptance of its appointment as successor agent
_hereunder, such successor agent shall succeed to all the rights,
_powers and duties of the retiring Agent and the term "Agent"
_shall mean such successor agent and the retiring Agent's powers
_and duties as Agent shall be terminated. After any retiring
_Agent's resignation hereunder as Agent, the provisions of this
_Article VIII and Sections 9.4 and 9.5 shall inure to its benefit
_as to any actions taken or omitted to be taken by it while it was
_Agent under this Agreement.
_
_ARTICLE IX. MISCELLANEOUS.
_
_ 9.1 AMENDMENTS AND WAIVERS. No amendment or waiver of any
_provision of this Agreement or any other Document, and no consent
_with respect to any departure by the Company therefrom shall be
_effective unless the same shall be in writing and signed by the
_Agent, the Issuer and the Majority Banks, and then such waiver
_shall be effective only in the specific instance and for the
_specific purpose for which given; provided, however, that no such
_waiver, amendment, or consent shall, unless in writing and signed
_by the Agent, the Issuer and all the Banks, do any of the
_following: (i) increase the amount of the Commitment of any
_Bank, extend the Termination Date (except as provided by Section
_2.14 hereof) or subject the Issuer to any additional obligations;
_(ii) postpone or delay any date fixed for any reimbursement or
_payment by the Company in respect of any drawings under the
_Letters of Credit; (iii) reduce the amount of, or the rate of
_interest specified herein on, any Letter of Credit Obligations,
_or the amount of any facility fee or Letter of Credit fee payable
_to (or for the account of) the Banks pursuant to Section 2.4;
_(iv) change the Percentage Shares which shall be required for the
_Banks or any of them to take any action hereunder, or (v) amend
_this Section 9.1, Section 2.13 or the last two sentences of
_Section 2.1(a); and provided, further, that no amendment, waiver
_or consent shall, unless in writing and signed by the Agent in
_addition to the Majority Banks or all the Banks as the case may
_be, affect the rights or duties of the Agent under this Agreement
_or any other Document; and provided, further that no amendment,
_waiver or consent shall, unless in writing and signed by the
_Issuer in addition to the Agent and the Banks required
_hereinabove to take such action or affect the rights or duties of
_the Issuer under this Agreement or any other Document.
_
_ 9.2 NOTICES. (a) All notices, requests and other
_communications provided for hereunder shall be in writing
_(including, unless the context expressly otherwise provides,
_telegraphic, telex, facsimile transmission or cable communication)
_
and mailed, telegraphed, telexed or delivered, (i) if to
_the Company, to its address specified on the signature pages
_hereof, (ii) if to any Bank, to its address set forth in the
_signature pages hereof, and (iii) if to the Agent or the Issuer,
_to its address specified on the signature pages hereof; or, as to
_the Company, the Issuer or the Agent, to such other address as
_shall be designated by such party in a written notice to the
_other parties, and as to each other party, at such other address
_as shall be designated by such party, in a written notice to the
_Company, the Issuer and the Agent. All such notices, requests,
_and communications shall, when transmitted by overnight delivery,
_telegraphed, telecopied by facsimile or telexed, be effective
_when delivered for overnight delivery or to the telegraph
_company, transmitted by telecopier or confirmed by telex
_answerback, respectively, or if delivered, upon delivery, except
_that notices to the Agent or the Issuer pursuant to Article II or
_VII shall not be effective until actually received. (b) The
_Company acknowledges and agrees that the agreement of the Agent,
_the Issuer and the Banks at Article II herein to receive certain
_notices by telephone and facsimile is solely for the convenience
_and at the request of the Company. The Agent and the Banks shall
_be entitled to rely on the authority of any Person purporting to
_be a Person authorized by the Company to give such notice and the
_Agent, the Issuer and the Banks shall not have any liability to
_the Company or other Person on account of any action taken or not
_taken by the Agent, the Issuer or the Banks in reliance upon such
_telephonic or facsimile notice. The obligation of the Company to
_repay the drawings under the Letters of Credit and all other
_Obligations shall not be affected in any way or to any extent by
_any failure by the Agent, the Issuer and the Banks to receive
_written confirmation of any telephonic or facsimile notice or the
_receipt by the Agent, the Issuer and the Banks of a confirmation
_which is at variance with the terms understood by the Agent, the
_Issuer and the Banks to be contained in the telephonic or
_facsimile notice.
_
_ 9.3 NO WAIVER; RIGHTS NOT EXCLUSIVE. No failure to
_exercise and no delay in exercising, on the part of the Agent,
_the Issuer or any Bank, any right, remedy, power or privilege
_hereunder or under the other Documents, shall operate as a waiver
_thereof; nor shall any single or partial exercise of any right,
_remedy, power or privilege hereunder or under the other Documents
_preclude any other or further exercise thereof or the exercise of
_any other right, remedy, power or privilege. The rights provided
_for in this Agreement and the other Documents are cumulative and
_are not exclusive of any other rights, powers, privileges or
_remedies provided by law or in equity, or under any other
_instrument, document or agreement now existing or hereafter
_arising.
_
_ 9.4 COSTS AND EXPENSES. The Company shall (a) pay or
_reimburse the Agent on demand for all reasonable out-of-pocket
_costs and expenses incurred by the Agent in connection with the
_development, preparation, delivery, administration and execution
_of, and any amendment, supplement, waiver or modification to,
_this Agreement, any Document and any other documents prepared in
_connection herewith or therewith, and the consummation of the
_transactions contemplated hereby and thereby, including the
_reasonable fees and disbursements of any law firm or other
_counsel incurred by the Agent with respect thereto; (b) pay or
_reimburse each Bank, the Issuer and the Agent on demand for all
_reasonable out-of-pocket costs and expenses incurred by them in
_connection with the enforcement, attempted enforcement, or
_preservation of any rights or remedies (including in connection
_with any "workout" or restructuring regarding the Letter of
_Credit Obligations) under this Agreement, any other Document, and
_any such other documents, including reasonable fees and
_disbursements of any law firm or other counsel incurred by the
_Agent and any Bank; and (c) pay or reimburse the Agent on demand
_for all appraisal, audit, search and filing costs, fees and
_expenses and the like, incurred or sustained by the Agent in
_connection with the matters referred to under clauses (a) and (b)
_of this Section.
_
_ 9.5 INDEMNITY. The Company shall pay, indemnify, and hold
_each Bank, the Issuer, the Agent and each of their respective of
_officers, directors, employees, counsel, agents and attorneys-in-
_fact (each an "Indemnified Person") harmless from and against any
_and all liabilities, obligations, losses, damages, penalties,
_actions, judgments, suits, costs, charges, expenses or
_disbursements (including fees and disbursements of any law firm
_or other counsel) of any kind or nature whatsoever with respect
_to the execution, delivery, enforcement, performance and
_administration of this Agreement and any other Documents, or the
_transactions contemplated hereby and thereby, and with respect to
_any investigation, litigation or proceeding related to this
_Agreement or the Letter of Credit Obligations or the use of the
_proceeds thereof, (all the foregoing, collectively, the
_"Indemnified Liabilities"), provided, that the Company shall have
_no obligation hereunder to any Indemnified Person with respect to
_Indemnified Liabilities arising from the gross negligence or
_willful misconduct of such Indemnified Person (it being agreed
_that the Issuer's exclusive reliance on documents presented in
_connection with a Letter of Credit shall not be deemed wilful
_misconduct or gross negligence, whether or not any such document,
_or any statement contained therein, proves to be forged,
_fraudulent, invalid, insufficient, untrue or inaccurate in any
_respect). The agreements in this Section shall survive payment
_of all other Obligations.
_
_ 9.6 MARSHALLING; PAYMENTS SET ASIDE. Neither the Agent nor
_the Banks shall be under any obligation to xxxxxxxx any assets in
_favor of the Company or any other Person or against or in payment
_of any or all of the Obligations. To the extent that the Company
_makes a payment or payments to the Agent, the Issuer or the
_Banks, or the Agent, the Issuer or the Banks exercise their
_rights of set-off, and such payment or payments or the proceeds
_of such enforcement or set-off or any part thereof are
_subsequently invalidated, declared to be fraudulent or
_preferential, set aside or required to be repaid to a trustee,
_receiver or any other party in connection with any Insolvency
_Proceeding, or otherwise, then to the extent of such recovery the
_obligation or part thereof originally intended to be satisfied
_shall be revived and continued in full force and effect as if
_such payment had not been made or such enforcement or set-off had
_not occurred.
_
_ 9.7 SUCCESSORS AND ASSIGNS. The provisions of this
_Agreement and the other Documents shall be binding upon and inure
_to the benefit of the parties hereto and their respective
_successors and assigns, except that the Company may not assign or
_transfer any of its rights or obligations under or in connection
_with this Agreement and the other Documents without the prior
_written consent of the Agent, the Issuer, and each Bank.
_
_ 9.8 ASSIGNMENTS, PARTICIPATIONS, ETC.
_
_ (A) ASSIGNMENTS. Any Bank may, with the prior written
_consent of the Agent and the Issuer, at any time assign and
_delegate to one or more Banks or other financial institutions all
_or any ratable part of such Bank's rights and obligations in
_respect of the Letters of Credit and its Commitment and the other
_rights and obligations of such Bank hereunder and under the other
_Documents; provided, however, that the Company, the Issuer and
_the Agent may continue to deal solely and directly with such Bank
_in connection with the interest so assigned to an assignee until
_(i) written notice of such assignment, together with payment
_instructions, addresses and related information with respect to
_the assignee, shall have been given to the Company and the Agent
_by such Bank and the assignee; (ii) such Bank and its assignee
_shall have delivered to the Company and the Agent the written
_agreement of the assignee that such assignee is bound by this
_Agreement as it would have been if it had been an original Bank
_party hereto, in form satisfactory to the Agent (an "Agreement to
_be Bound"); and (iii) any reasonable processing fees requested by
_the Agent shall have been paid. From and after the date of
_(A) notification by the Agent to the assignor Bank that the Agent
_has received an executed Agreement to be Bound, (B) payment to
_the Agent of any processing fees, and (C) delivery to the Agent
_and the Company of the tax forms and documents contemplated by
_Section 9.11, then the assignee shall be a party hereto and, to
_the extent of the rights and obligations hereunder assigned to
_it, shall have the rights and obligations of a Bank under the
_Documents, and the assignor Bank shall, to the extent that rights
_and obligations hereunder have been assigned by it, relinquish
_its rights and be released from its obligations under the
_Documents. Effective such date, this Agreement shall be deemed
_to be amended to the extent, but only to the extent, necessary to
_reflect the addition of the assignee and the resulting adjustment
_of the Commitments arising therefrom. The Commitment allocated
_to each assignee shall reduce such Commitments of the assigning
_Bank pro tanto. Notwithstanding anything to the contrary
_contained herein, the Issuer may not assign its obligations as
_Issuer hereunder without the prior written consent of the
_Company, such consent not to be unreasonably withheld or delayed.
_
_ (B) PARTICIPATIONS. Any Bank may at any time sell to
_one or more commercial banks or other institutions participating
_interests in such Bank's rights and obligations hereunder and in
_respect of Letters of Credit and the other Documents, interest in
_its Letters of Credit, the Commitment of that Bank and the other
_interests of that Bank hereunder and under the other Documents.
_In the case of any such participation, the participant shall not
_have any rights to claim amounts directly from the Company under
_this Agreement, or any of the other Documents, and all amounts
_payable by the Company hereunder shall be determined as if such
_Bank had not sold such participation (except as otherwise
_provided).
_
_ (C) CONFIDENTIALITY. Each Bank agrees to exercise
_reasonable care to maintain the confidentiality of all non-public
_information which is provided to it by the Company or any
_Subsidiary of the Company, or by the Agent on such Company's or
_Subsidiary's behalf, in connection with this Agreement or any
_other Document, and neither it nor any of its affiliates shall
_use or disclose any such information for any purpose or in any
_manner other than pursuant to the terms contemplated by this
_Agreement, except to the extent such information (i) was or
_becomes generally available to the public other than as a result
_of a disclosure by the Bank, or (ii) was or becomes available on
_a non-confidential basis from a source other than the Company,
_provided that such source is not bound by a confidentiality
_agreement with the Company known to the Bank; and provided
_further, however, that any Bank may disclose such information
_(A) at the request or pursuant to any requirement of any
_Governmental Authority or in connection with an examination of
_such Bank by any such authority; (B) pursuant to subpoena or
_other court process; (C) when required to do so in accordance
_with the provisions of any applicable Requirement of Law; and (D)
_to such Bank's auditors, counsel and other professional advisors,
_affiliates and regulators. Notwithstanding the foregoing, the
_Company authorizes each Bank to disclose to any participant or
_assignee (each a "Transferee") and to any prospective Transferee,
_and to a beneficiary or other Bank or the Agent or Issuer or
_participants of any such Person, financial and other information
_in such Bank's possession concerning the Company or its
_Subsidiaries which has been delivered to Agent or the Banks
_pursuant to this Agreement or which has been delivered to the
_Agent or the Banks by the Company in connection with the Banks'
_credit evaluation of the Company prior to entering into this
_Agreement; provided that, unless otherwise agreed by the Company,
_such prospective Transferee agrees in writing to such Bank to
_keep such information confidential on the same terms as set forth
_herein.
_
_ 9.9 SET-OFF. In addition to any rights and remedies of the
_Banks provided by law, if an Event of Default exists, the Agent,
_the Issuer and each Bank is authorized at any time and from time
_to time, without prior notice to the Company, any such notice
_being waived by the Company to the fullest extent permitted by
_law, to set off and apply any and all deposits (general or
_special, time or demand, provisional or final) at any time held
_by, and other indebtedness at any time owing to, such Bank to or
_for the credit or the account of the Company against any and all
_Obligations owing to the Agent, the Issuer and such Bank, now or
_hereafter existing, irrespective of whether or not the Agent, the
_Issuer or such Bank shall have made demand under this Agreement
_or any Document and although such Obligations may be contingent
_or unmatured. Each Bank agrees promptly to notify the Company
_and the Agent after any such set-off and application made by such
_Bank; provided, however, that the failure to give such notice
_shall not affect the validity of such set-off and application.
_The rights of each of the Agent, the Issuer and each Bank under
_this Section 9.9 are in addition to the other rights and remedies
_(including other rights of set-off) which the Agent, the Issuer
_and such Bank may have.
_
_ 9.10 NOTIFICATION OF ADDRESSES, ISSUING OFFICES, ETC. Each
_Bank and the Issuer shall notify the Agent in writing of any
_changes in the address to which notices to the Bank or the Issuer
_should be directed, of address of its Issuing Office, of payment
_instructions in respect of all payments to be made to it
_hereunder and of such other administrative information as the
_Agent shall reasonably request.
_
_ 9.11 TAXES. Each Bank that is incorporated under the laws
_of any jurisdiction outside the United States agrees, at the
_request of the Company, to deliver to the Agent and the Company
_on or prior to the Closing Date, and in a timely fashion
_thereafter, Form 1001, Form 4224 or such other documents and
_forms of the United States Internal Revenue Service, duly
_executed and completed by such Bank, as are required under United
_States law to establish such Bank's status for United States
_withholding tax purposes.
_
_ 9.12 COUNTERPARTS. This Agreement may be executed by one or
_more of the panics to this Agreement in any number of separate
_counterparts, each of which, when so executed shall be deemed an
_original, and all of said counterparts taken together shall be
_deemed to constitute but one and the same instrument. A set of
_the copies of this Agreement signed by all the parties shall be
_lodged with the Company and the Agent.
_
_ 9.13 SEVERABILITY. The illegality or unenforceability of
_any provision of this Agreement or any other Document or any
_other instrument or agreement required hereunder shall not in any
_way affect or impair the legality or enforceability of the
_remaining provisions of this Agreement, such other Document or
_any other instrument or agreement required hereunder.
_
_ 9.14 NO THIRD PARTIES BENEFITTED. This Agreement and the
_other Documents are made and entered into for the sole protection
_and legal benefit of the Company, the Banks, the Issuer and the
_Agent, and their permitted successors and assigns, and no other
_Person shall be a direct or indirect legal beneficiary of, or
_have any direct or indirect cause of action or claim in
_connection with, this Agreement.
_
_ 9.15 GOVERNING LAW AND JURISDICTION. (a) This Agreement
_shall be governed by, and construed in accordance with, the law
_of the State of California, and, to the extent not inconsistent
_therewith, the Uniform Customs and Practices for Documentary
_Practices as most recently published by the International Chamber
_of Commerce. (b) Any legal action or proceeding with respect to
_this Agreement and any other Documents related hereto may be
_brought in the federal or state courts located in San Francisco
_or Los Angeles, California; and by execution and delivery of this
_Agreement, the Company consents, for itself and in respect of its
_property, to the jurisdiction of those courts. The Company
_irrevocably waives any objection, including any objection to the
_laying of venue or based on the grounds of forum non conveniens,
_which it may now or hereafter have to the bringing of any action
_or proceeding in such jurisdiction in respect of this Agreement
_or any Document related hereto. The Company, waives personal
_service of any summons, complaint or other process, which may be
_made by any other means permitted by California law; without
_limiting the foregoing, the Company consents to the service of
_process out of such courts by registered mail, postage prepaid,
_to its address set forth on the signature page hereof (as such
_address may be updated from time to time by notice given to each
_other party pursuant to the terms hereof).
_
_ 9.16 WAIVER OF JURY TRIAL. THE COMPANY, THE BANKS, THE
_ISSUER AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A
_TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
_ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER DOCUMENTS,
_OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
_ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
_OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH
_RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE
_COMPANY, THE BANKS, THE ISSUER AND THE AGENT EACH AGREE THAT ANY
_SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL
_WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES
_FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS
_WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
_COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN
_PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS
_AGREEMENT OR THE OTHER DOCUMENTS OR ANY PROVISION HEREOF OR
_THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
_RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
_OTHER DOCUMENTS.
_
_ 9.17 ENTIRE AGREEMENT. This Agreement, together with the
_other Documents, embodies the entire Agreement and understanding
_among the Company, the Banks, the Issuer and the Agent, and
_supersedes all prior or contemporaneous agreements and
_understandings of such Persons, verbal or written, relating to
_the subject matter hereof and thereof, except for the fee letter
_between the Company and the Agent relating to the payment of
_fees, and any prior arrangements made with respect to the payment
_by the Company of (or any indemnification for) any fees, costs or
_expenses payable to or incurred (or to be incurred) by or on
_behalf of the Agent, the Issuer or the Banks.
_
_ 9.18 INTERPRETATION. This Agreement is the result of
_negotiations between and has been reviewed by counsel to the
_Agent and the Issuer, counsel to the Company and other parties,
_and is the product of all parties hereto. Accordingly, this
_Agreement and the other Documents shall not be construed against
_the Banks, the Issuer or the Agent merely because of the Agent's,
_the Issuer's or the Banks' involvement in the preparation of such
_documents and agreements.
_
_ IN WITNESS WHEREOF, the parties hereto have caused this
_Agreement to be duly executed and delivered in San Francisco,
_California by their proper and duly authorized officers as of the
_day and year first above written.
_
_
_QUANTUM CORPORATION Address for notices:
_
_ 000 XxXxxxxx Xxxxxxxxx
_ Xxxxxxxx, XX 00000
_ Attn: Xxxxxx XxXxxxxx,
_ Director of Finance
_By: Xxxxxx X. Xxxxxxx and Treasurer
_Title: Executive Vice President, Telephone: (000) 000-0000
_ Finance Fax: (000) 000-0000
_
_
_THE SUMITOMO BANK, LIMITED, Address for notices:
_ACTING THROUGH ITS SAN FRANCISCO
_ BRANCH as Agent San Xxxxxxxxx Xxxxxx
_ 000 Xxxxxxxxxx Xxxxxx,
_ Xxxxx 0000
_ Xxx Xxxxxxxxx, XX 00000
_ Attn: Xxxxxx X. Xxxxx, Xx.
_By: Xxxx Xxxxxx Telephone: (000) 000-0000
_Title: General Manager Fax: (000) 000-0000
_
_ Address for payments to Agent:
_
_By: Xxxxxx X. Xxxxx, Xx. Sumitomo Bank of California
_Title: Vice President San Francisco, California
_ ABA No. 000-000-000
_ To the account of The Sumitomo
_ Bank, Limited
_ Reference: Quantum LC
_ Attn: Xxxxxx X. Xxxxx, Xx.
_
_
_THE SUMITOMO BANK, LIMITED, Address for notices:
_ACTING THROUGH ITS SAN FRANCISCO
_ BRANCH as Issuer San Xxxxxxxxx Xxxxxx
_ 000 Xxxxxxxxxx Xxxxxx,
_ Xxxxx 0000
_ Xxx Xxxxxxxxx, XX 00000
_ Attn: Xxxxxx X. Xxxxx, Xx.
_By: Xxxx Xxxxxx Telephone: (000) 000-0000
_Title: General Manager Fax: (000) 000-0000
_
_ Address for payments to
_ Issuer:
_
_By: Xxxxxx X. Xxxxx, Xx. Sumitomo Bank of California
_Title: Vice President San Francisco, California
_ ABA No. 000-000-000
_ To the account of The Sumitomo
_ Bank, Limited
_ Reference: Quantum LC
_ Attn: Xxxxxx X. Xxxxx, Xx.
_
_BANKS
_
_THE SUMITOMO BANK, LIMITED, Address for notices:
_ACTING THROUGH ITS SAN FRANCISCO
_ BRANCH San Xxxxxxxxx Xxxxxx
_ 000 Xxxxxxxxxx Xxxxxx,
_ Suite 3350
_ Xxx Xxxxxxxxx, XX 00000
_By: Xxxx Xxxxxx Attn: Xxxxxx X. Xxxxx, Xx.
_Title: General Manager Telephone: (000) 000-0000
_ Fax: (000) 000-0000
_
_By: Xxxxxx X. Xxxxx, Xx.
_Title: Vice President
_
_
_THE FUJI BANK, LIMITED, Address for notices:
_ACTING THROUGH ITS SAN FRANCISCO
_ AGENCY
_ 000 Xxxxxxxxxx Xxxxxx
_ Xxx Xxxxxxxxx, XX 00000
_By: Xxxxx Xxxxx Attn: Xxxxxxx X. Xxxxxx
_Title: General Manager Telephone: (000) 000-0000
_ Fax: (000) 000-0000
_
_
_
_THE INDUSTRIAL BANK OF JAPAN, Address for notices:
_ LIMITED, ACTING THROUGH ITS
_ SAN FRANCISCO AGENCY 000 Xxxxxxxxxx Xxxxxx
_ Suite 3110
_ Xxx Xxxxxxxxx, XX 00000
_ Attn: Xxxxxxx X. XxXxxxxxxxx
_By: Xxxxxx Xxxxxx Telephone: (000) 000-0000
_Title: Joint General Manager Fax: (000) 000-0000
_
_
_ SCHEDULE 1.1
_
_ FED FUNDS RATE
_
_ "FED FUNDS RATE" means, on any day, the rate of
_interest charged by the Agent at its San Francisco office on such
_day (or its Los Angeles office, if the San Francisco office is
_not on such day selling Federal Funds) for the sale by the Agent
_to other prime banks of (or, if the Agent is not on such day
_selling Federal Funds, then the average, rounded upwards, if
_necessary, to the nearest 100th of 1% of the rate being offered
_for sale to the Agent by two other prime banks selected by the
_Agent for) Federal Funds for overnight deposits in an amount
_comparable to the amount to which such rate relates. If the
_Agent is not selling Federal Funds to, or purchasing from, other
_banks at the relevant time with respect to overnight deposits
_then such rate shall be the Prime Rate for each such day.
_
_
_
_
_
_ SCHEDULE 2.1
_
_ COMMITMENTS
_
_
_
_ PERCENTAGE
_ BANK COMMITMENT SHARE
_
_The Sumitomo Bank, Limited, $ 30,000,000 35.294117647%
_ San Xxxxxxxxx Xxxxxx
_
_
_The Fuji Bank, Limited, $ 27,500,000 32.352941176%
_ San Francisco Agency
_
_
_The Industrial Bank of Japan, $ 27,500,000 32.352941176%
_ Limited, San Francisco Agency
_ ------------- ------------
_ $ 85,000,000 100.000000000%
_
_
