{"id":40954,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/credit-agreement-digital-microwave-corp-and-bank-of-america.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"credit-agreement-digital-microwave-corp-and-bank-of-america","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/credit-agreement-digital-microwave-corp-and-bank-of-america.html","title":{"rendered":"Credit Agreement &#8211; Digital Microwave Corp. and Bank of America"},"content":{"rendered":"<pre>\n                                   CREDIT AGREEMENT\n\n\n                              DATED AS OF JUNE 30, 1997\n\n\n                                       BETWEEN\n\n\n                            DIGITAL MICROWAVE CORPORATION\n\n\n                                         AND\n\n\n                            BANK OF AMERICA NATIONAL TRUST\n                               AND SAVINGS ASSOCIATION\n\n\n\n\n\n\n\n- --------------------------------------------------------------------------------\n- --------------------------------------------------------------------------------\n\n\n\n\n\n                               TABLE OF CONTENTS\n\n\n   Section                                                                  Page\n\n                                   ARTICLE I\n              Definitions and Financial Requirements . . . . . . . . . . . .   1\n\n    1.01  Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . .   1\n    1.02  Financial Requirements . . . . . . . . . . . . . . . . . . . . . .   7\n\n                                   ARTICLE II\n              The Credit Facilities. . . . . . . . . . . . . . . . . . . . .  7\n\n    2.01  The Revolving Facility . . . . . . . . . . . . . . . . . . . . . .  7\n    2.02  Dollar Advances Under the Revolving Facility . . . . . . . . . . .  8\n    2.03  Conversion and Continuation Elections. . . . . . . . . . . . . . .  9\n    2.04  Commercial Letters of Credit under the Revolving Facility. . . . . 10\n    2.05  Standby Letters of Credit Under the Revolving Facility . . . . . . 11\n    2.06  Local Currency Advances. . . . . . . . . . . . . . . . . . . . . . 12\n    2.07  Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . 13\n    2.08  Mandatory Payment. . . . . . . . . . . . . . . . . . . . . . . . . 13\n    2.09  Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . 13\n    2.10  Commitment Fee . . . . . . . . . . . . . . . . . . . . . . . . . . 13\n    2.11  Default Rate . . . . . . . . . . . . . . . . . . . . . . . . . . . 13\n    2.12  Early Termination of Commitment. . . . . . . . . . . . . . . . . . 13\n\n                                  ARTICLE III\n              Extensions of Credit, Payments and Interest Calculations . . . 14\n\n    3.01  Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . 14\n    3.02  Disbursements and Payments . . . . . . . . . . . . . . . . . . . . 14\n    3.03  Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . 14\n    3.04  Evidence of Indebtedness . . . . . . . . . . . . . . . . . . . . . 14\n    3.05  Interest Calculation . . . . . . . . . . . . . . . . . . . . . . . 14\n    3.06  Late Payments; Compounding . . . . . . . . . . . . . . . . . . . . 14\n    3.07  Business Day . . . . . . . . . . . . . . . . . . . . . . . . . . . 15\n    3.08  Taxes and Other Charges. . . . . . . . . . . . . . . . . . . . . . 15\n    3.09  Illegality . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16\n    3.10  Increased Costs. . . . . . . . . . . . . . . . . . . . . . . . . . 16\n    3.11  Funding Losses . . . . . . . . . . . . . . . . . . . . . . . . . . 17\n    3.12  Inability to Determine Rates . . . . . . . . . . . . . . . . . . . 18\n    3.13  Certificate of the Bank. . . . . . . . . . . . . . . . . . . . . . 18\n    3.14  Survival. . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 18\n\n                                   ARTICLE IV\n              Conditions to Availability of Credit . . . . . . . . . . . . . 18\n\n    4.01  Conditions to First Extension of Credit. . . . . . . . . . . . . . 18\n    4.02  Conditions to Each Extension of Credit . . . . . . . . . . . . . . 19\n\n\n\n                                       i\n\n\n\n\n   Section                                                                  Page\n\n                                   ARTICLE V\n              Representations and Warranties . . . . . . . . . . . . . . . . 19\n\n    5.01  Corporate Existence and Power. . . . . . . . . . . . . . . . . . . 19\n    5.02  Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . 20\n    5.03  Enforceability . . . . . . . . . . . . . . . . . . . . . . . . . . 20\n    5.04  Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . 20\n    5.05  Permits, Franchises. . . . . . . . . . . . . . . . . . . . . . . . 20\n    5.06  Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20\n    5.07  No Event of Default. . . . . . . . . . . . . . . . . . . . . . . . 21\n    5.08  Other Obligations. . . . . . . . . . . . . . . . . . . . . . . . . 21\n    5.09  Tax Returns. . . . . . . . . . . . . . . . . . . . . . . . . . . . 21\n    5.10  Information Submitted. . . . . . . . . . . . . . . . . . . . . . . 21\n    5.11  No Material Adverse Effect . . . . . . . . . . . . . . . . . . . . 21\n    5.12  ERISA Compliance . . . . . . . . . . . . . . . . . . . . . . . . . 21\n    5.13  Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . 22\n    5.14  Swap Obligations . . . . . . . . . . . . . . . . . . . . . . . . . 22\n\n                                   ARTICLE VI\n              Affirmative Covenants. . . . . . . . . . . . . . . . . . . . . 22\n\n    6.01  Notices of Certain Events. . . . . . . . . . . . . . . . . . . . . 22\n    6.02  Financial and Other Information. . . . . . . . . . . . . . . . . . 23\n    6.03  Books, Records, Audits and Inspections . . . . . . . . . . . . . . 23\n    6.04  Use of Facility. . . . . . . . . . . . . . . . . . . . . . . . . . 24\n    6.05  Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24\n    6.06  Compliance with Laws . . . . . . . . . . . . . . . . . . . . . . . 24\n    6.07  Change in Name, Structure or Location. . . . . . . . . . . . . . . 24\n    6.08  Existence and Properties . . . . . . . . . . . . . . . . . . . . . 24\n\n                                  ARTICLE VII\n              Negative Covenants . . . . . . . . . . . . . . . . . . . . . . 25\n\n    7.01  Other Indebtedness . . . . . . . . . . . . . . . . . . . . . . . . 25\n    7.02  Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26\n    7.03  Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . 26\n    7.04  Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . 26\n    7.05  Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . 26\n    7.06  Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26\n    7.07  Loans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27\n    7.08  Liquidations and Mergers . . . . . . . . . . . . . . . . . . . . . 27\n    7.09  Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . 27\n    7.10  Business Activities. . . . . . . . . . . . . . . . . . . . . . . . 28\n    7.11  Regulations G, T, U, and X . . . . . . . . . . . . . . . . . . . . 28\n    7.12  Intentionally Omitted. . . . . . . . . . . . . . . . . . . . . . . 28\n    7.13  Quick Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . . . 28\n    7.14  Tangible Net Worth . . . . . . . . . . . . . . . . . . . . . . . . 28\n    7.15  Total Liabilities to Tangible Net Worth. . . . . . . . . . . . . . 28\n    7.16  Consecutive Quarterly Losses; Losses in One Quarter. . . . . . . . 28\n\n\n\n                                       ii\n\n\n\n\n   Section                                                                  Page\n                                 ARTICLE VIII\n              Events of Default. . . . . . . . . . . . . . . . . . . . . . . 29\n\n    8.01  Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . 29\n         (a)  Failure to Pay . . . . . . . . . . . . . . . . . . . . . . . . 29\n         (b)  Breach of Representation or Warranty . . . . . . . . . . . . . 29\n         (c)  Specific Defaults. . . . . . . . . . . . . . . . . . . . . . . 29\n         (d)  Other Defaults . . . . . . . . . . . . . . . . . . . . . . . . 29\n         (e)  Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . 29\n         (f)  Failure to Pay Debts; Voluntary Bankruptcy . . . . . . . . . . 29\n         (g)  Involuntary Bankruptcy . . . . . . . . . . . . . . . . . . . . 30\n         (h)  Default of Other Financial Obligations . . . . . . . . . . . . 30\n         (i)  Default of Other Bank Obligations. . . . . . . . . . . . . . . 30\n         (j)  Material Adverse Effect. . . . . . . . . . . . . . . . . . . . 30\n         (k)  ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30\n         (l)  Change of Control. . . . . . . . . . . . . . . . . . . . . . . 31\n    8.02  Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31\n\n                                   ARTICLE IX\n              Miscellaneous. . . . . . . . . . . . . . . . . . . . . . . . . 32\n\n    9.01  Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . 32\n    9.02  Consents and Waivers . . . . . . . . . . . . . . . . . . . . . . . 32\n    9.03  Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . 32\n    9.04  Costs and Attorneys' Fees. . . . . . . . . . . . . . . . . . . . . 32\n    9.05  Integration; Amendment . . . . . . . . . . . . . . . . . . . . . . 33\n    9.06  Confidentiality. . . . . . . . . . . . . . . . . . . . . . . . . . 33\n    9.07  Participations . . . . . . . . . . . . . . . . . . . . . . . . . . 34\n    9.08  General Indemnification. . . . . . . . . . . . . . . . . . . . . . 34\n    9.09  Arbitration; Reference Proceeding. . . . . . . . . . . . . . . . . 35\n    9.10  Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36\n    9.11  Headings; Interpretation . . . . . . . . . . . . . . . . . . . . . 36\n    9.12  Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 37\n    9.13  Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 37\n    9.14  Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . 37\n\nSchedules\n\nSchedule 7.01   Existing Indebtedness\nSchedule 7.02   Existing Liens\n\nExhibits\n\nExhibit A       Form of Compliance Certificate\nExhibit B       Form of Notice of Borrowing\nExhibit C       Form of Notice of Conversion\/Continuation\n\n\n\n                                      iii\n\n\n\n                                   CREDIT AGREEMENT\n\n\n         THIS CREDIT AGREEMENT (this \"AGREEMENT\") is entered into as of\nJune 30, 1997, between DIGITAL MICROWAVE CORPORATION (the \"BORROWER\"), and BANK\nOF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (the \"BANK\").\n\n         In consideration of the mutual covenants and agreements contained\nherein, the Borrower and the Bank agree as follows:\n\n                                      ARTICLE I\n\n                       DEFINITIONS AND FINANCIAL REQUIREMENTS.\n\n    1.01  DEFINITIONS.  The following terms (including plural and singular\nversions thereof) have the meanings indicated:\n\n    \"ACCEPTABLE SUBSIDIARY\":  a Subsidiary of the Borrower acceptable to the\nBank in its sole discretion that (a) is specified as a \"Borrower\" on a\ncontinuing guaranty executed by the Borrower in form and substance satisfactory\nto the Bank, and (b) has executed such credit and related documentation with and\nin favor of the Bank as the Bank may request.\n\n    \"ADVANCE\":  an advance hereunder.\n\n    \"AFFILIATE\":  means, as to any Person, any other Person which, directly or\nindirectly, is in control of, is controlled by, or is under common control with,\nsuch Person.  A Person shall be deemed to control another Person if the\ncontrolling Person possesses, directly or indirectly, the power to direct or\ncause the direction of the management and policies of the other Person, whether\nthrough the ownership of voting securities, membership interests, by contract,\nor otherwise.\n\n    \"AVAILABILITY PERIOD\":  the period commencing on the date of this Agreement\nand ending on the date that is the earlier to occur of (a) June 30, 1998 and (b)\nthe date on which the Bank's commitment to extend credit hereunder terminates.\n\n    \"BUSINESS DAY\":  any day other than a Saturday, a Sunday, or other day on\nwhich commercial banks in San Francisco, California, are authorized or required\nby law to close and, if the applicable Business Day relates to any Offshore Rate\nAdvance, means such a day on which dealings are carried on in the applicable\noffshore interbank market.\n\n\n                                       1\n\n\n\n\n    \"CAPITAL ADEQUACY REGULATION\" means any guideline, request or directive of\nany central bank or other governmental authority, or any other law, rule or\nregulation, whether or not having the force of law, in each case, regarding\ncapital adequacy of any bank or of any corporation controlling a bank.\n\n    \"CLOSING DATE\":  the date on which all conditions to the initial extension\nof credit hereunder are satisfied.\n\n    \"CODE\":  the Internal Revenue Code of 1986, as amended, and the rules and\nregulations promulgated thereunder as from time to time in effect.\n\n    \"COMPLIANCE CERTIFICATE\":  a compliance certificate in the form of EXHIBIT\nA.\n\n    \"CONTINUING GUARANTY\":  a continuing guaranty in form and substance\nsatisfactory to the Bank which has been executed by the Borrower and which\nguarantees the payment and performance of all obligations under the Credit\nDocuments of one or more Acceptable Subsidiaries.\n\n    \"CREDIT DOCUMENTS\":  collectively, this Agreement and each other agreement,\ndocuments and instrument, including any Continuing Guaranty, now or hereafter\ndelivered to the Bank (including any Offshore Credit Provider) in connection\nwith the credits established herein and the transactions contemplated hereby.\n\n    \"CREDIT LIMIT\":  the amount $20,000,000.\n\n    \"DEFAULT\":  any event or circumstance which, with the giving of notice, the\nlapse of time, or both, would (if not cured or otherwise remedied during such\ntime) constitute an Event of Default.\n\n    \"DOLLARS\", \"DOLLARS\" and \"$\":  each, lawful money of the United States.\n\n    \"DOLLAR ADVANCES\":  specified in subsection 2.01(b).\n\n    \"ENVIRONMENTAL LAWS\":  any foreign, federal, state, local, or municipal\nlaws, rules, orders, regulations, statutes, ordinances, codes, decrees,\nrequirements of any governmental authority, any and all requirements of law and\nany and all common law requirements, rules, and bases of liability regulating,\nrelating to, or imposing liability or standards of conduct concerning pollution\nor protection of human health or the environment or Hazardous Substances or any\nactivity involving Hazardous Substances, as now or may at any time hereafter may\nbe in effect.\n\n    \"EQUIVALENT AMOUNT\":  (a) whenever this Agreement requires or permits a\ndetermination on any date of the equivalent in dollars of an amount expressed in\na currency other than dollars, the\n\n\n                                       2\n\n\n\n\nequivalent amount in dollars of any amount expressed in a currency other than\ndollars as determined by the Bank on such date on the basis of the Spot Rate\nfor the purchase of dollars with such other currency on the relevant date; or\n(b) whenever this Agreement requires or permits a determination on any date\nof the equivalent in a currency other than dollars of an amount expressed in\ndollars, the equivalent amount in a currency other than dollars of an amount\nexpressed in dollars as determined by the Bank on such date on the basis of\nthe Spot Rate for the purchase of such other currency with dollars on the\nrelevant date.\n\n    \"ERISA\":  the Employee Retirement Income Security Act of 1974, as amended,\nand the rules and regulations promulgated thereunder as from time to time in\neffect.\n\n    \"ERISA EVENT\":  (a) a Reportable Event with respect to a Pension Plan;\n(b) a withdrawal by the Borrower from a Pension Plan subject to Section 4063 of\nERISA during a plan year in which it was a substantial employer (as defined in\nSection 4001(a)(2) of ERISA) or a cessation of operations which is treated as\nsuch a withdrawal under Section 4062(e) of ERISA; (c) the filing of a notice of\nintent to terminate, the treatment of a plan amendment as a termination under\nSection 4041 or 4041A of ERISA or the commencement of proceedings by the PBGC to\nterminate a Pension Plan subject to Title IV of ERISA; (d) a failure by the\nBorrower to make required contributions to a Pension Plan or other Plan subject\nto Section 412 of the Code; (e) an event or condition which might reasonably be\nexpected to constitute grounds under Section 4042 of ERISA for the termination\nof, or the appointment of a trustee to administer, any Pension Plan; (f) the\nimposition of any liability under Title IV of ERISA, other than PBGC premiums\ndue but not delinquent under Section 4007 of ERISA, upon the Borrower; or (g) an\napplication for a funding waiver or an extension of any amortization period\npursuant to Section 412 of the Code with respect to any Pension Plan.\n\n    \"EVENT OF DEFAULT\":  any event listed in Article VIII of this Agreement.\n\n    \"FDIC\":  the Federal Deposit Insurance Corporation, or any entity\nsucceeding to any of its principal functions.\n\n    \"FINAL MATURITY DATE\":  (a) in respect of any Advances, June 30, 1998; (b)\nin respect of any commercial letters of credit, December 31, 1998; and (c) in\nrespect of any standby letters of credit, June 30, 1999.\n\n    \"FLOATING RATE\":  specified in subsection 2.02(a).\n\n    \"FRB\":  the Board of Governors of the Federal Reserve System, or any entity\nsucceeding to any of its principal functions.\n\n\n                                       3\n\n\n\n\n    \"HAZARDOUS SUBSTANCE\":  any hazardous or toxic substance, material,\npollutant, waste or similar designation, defined, listed, classified, or\nregulated as such in or under any Environmental Laws, including asbestos,\npetroleum, or petroleum products (including gasoline, crude oil, or any fraction\nthereof), polychlorinated biphenyls, and urea-formaldehyde insulation.\n\n    \"IRS\":  the Internal Revenue Service or any entity succeeding to any of its\nprincipal functions under the Code.\n\n    \"L\/C OUTSTANDING AMOUNT\":  at any time, the undrawn amount at such time of\nany letter of credit issued hereunder, plus the amount of all drafts or drawings\npaid or accepted by the Bank which have not yet been reimbursed to the Bank,\nplus any other obligation or liability of the Borrower or any Acceptable\nSubsidiary to the Bank with respect to any letter of credit issued under this\nAgreement.\n\n    \"LOCAL CURRENCY\":  specified in subsection 2.01(b).\n\n    \"LOCAL CURRENCY ADVANCE\":  specified in subsection 2.01(b).\n\n    \"MATERIAL ADVERSE EFFECT\":  (a) a material adverse change in, or a material\nadverse effect upon, the operations, business, properties, or condition\n(financial or otherwise) of the Borrower or the Borrower and its Subsidiaries\ntaken as a whole; (b) a material impairment of the ability of the Borrower or\nany Acceptable Subsidiary to perform under any Credit Document; or (c) a\nmaterial adverse effect upon the legality, validity, binding effect or\nenforceability of any Credit Document.\n\n    \"NOTICE OF BORROWING\"  means a notice in substantially the form of\nEXHIBIT B.\n\n    \"NOTICE OF CONVERSION\/CONTINUATION\"  means a notice in substantially the\nform of EXHIBIT C.\n\n    \"OFFSHORE CREDIT PROVIDER\":  a foreign office, foreign branch or foreign\naffiliate of the Bank, acceptable to the Bank.\n\n    \"OFFSHORE RATE\":  for each Offshore Rate Interest Period, the rate of\ninterest (rounded upward to the next 1\/16th of 1%) determined pursuant to the\nfollowing formula:\n\n                                       Offered Rate        \n         Offshore Rate =  ------------------------------------\n                          1.00 - Eurodollar Reserve Percentage\n\n         Where:\n                      OFFERED RATE\" means the rate of interest at which\n                 deposits in the applicable currency in the approximate\n                 amount of the Offshore Rate Advance to be made and having\n                 a maturity comparable to such Offshore Rate Interest Period\n                 would be offered by the Bank's London\n\n\n                                       4\n\n\n\n\n                 Branch (or such other office as may be designated for such\n                 purpose by the Bank) to major banks in the London interbank\n                 market upon request of such banks at approximately 11:00 a.m.\n                 (London, England time) two Business Days prior to the first\n                 day of such Offshore Rate Interest Period.\n\n                      \"EURODOLLAR RESERVE PERCENTAGE\" means, for any Offshore\n                 Rate Interest Period, the maximum reserve percentage (expressed\n                 as a decimal, rounded upward to the next 1\/100th of 1%) in\n                 effect on the first day of such Offshore Rate Interest Period\n                 (whether or not applicable to the Bank) under regulations\n                 issued from time to time by the FRB for determining the maximum\n                 reserve requirement (including any emergency, supplemental or\n                 other marginal reserve requirement) with respect to\n                 Eurocurrency funding (currently referred to as \"Eurocurrency\n                 liabilities\") having a term comparable to such Offshore Rate\n                 Interest Period.\n\n    \"OFFSHORE RATE ADVANCE\":  an Advance for which interest is based on the\nOffshore Rate.\n\n    \"OFFSHORE RATE INTEREST PERIOD\":  for each Offshore Rate Advance the\nperiod commencing on the date the Offshore Rate Advance begins to bear\ninterest at a rate based on the Offshore Rate and ending one, two, three, or\nsix months thereafter, as requested by the Borrower; provided, however, that\nthe last day of each Offshore Rate Interest Period shall be determined in\naccordance with the practices of the applicable offshore interbank markets as\nfrom time to time in effect, and provided further that no such interest\nperiod shall extend beyond the Final Maturity Date.\n\n    \"PBGC\":  the Pension Benefit Guaranty Corporation or any entity succeeding\nto any of its principal functions under ERISA.\n\n    \"PENSION PLAN\":  a pension plan (as defined in Section 3(2) of ERISA)\nsubject to Title IV of ERISA which the Borrower sponsors, maintains, or to which\nit makes, is making, or is obligated to make contributions, or in the case of\na multiple employer plan (as described in Section 4064(a) of ERISA) has made\ncontributions at any time during the immediately preceding five plan years.\n\n    \"PERMITTED SWAP OBLIGATIONS\":  all obligations (contingent or otherwise)\nof the Borrower or any Subsidiary existing or arising under Swap Contracts,\nprovided that each of the following criteria is satisfied:  (a) such\nobligations are (or were) entered into by such Person in the ordinary course\nof business for the purpose of directly mitigating risks associated with\nliabilities, commitments or assets held by such Person, or changes in the\nvalue of securities issued by such Person in conjunction with a securities\nrepurchase program not otherwise\n\n\n                                       5\n\n\n\n\nprohibited hereunder, and not for purposes of speculation or taking a \"market\nview;\" and (b) such Swap Contracts do not contain (i) any provision\n(\"walk-away\" provision) exonerating the non-defaulting party from its\nobligation to make payments on outstanding transactions to the defaulting\nparty or (ii) except in the case of a swap contract with the Bank or an\naffiliate of the Bank, any provision creating or permitting the declaration\nof an event of default, termination event or similar event upon the\noccurrence of an Event of Default hereunder (other than an Event of Default\nunder subsection 8.01(a)).\n\n    \"PERSON\": an individual, partnership, corporation, limited liability\ncompany, business trust, joint stock company, trust, unincorporated\nassociation, joint venture or governmental authority.\n\n    \"PLAN\":  an employee benefit plan (as defined in Section 3(3) of ERISA)\nwhich the Borrower sponsors or maintains or to which the Borrower makes, is\nmaking, or is obligated to make contributions and includes any Pension Plan.\n\n    \"REFERENCE RATE\":  for any day, the rate of interest in effect for such\nday as publicly announced from time to time by the Bank in San Francisco,\nCalifornia, as its \"reference rate.\"  It is a rate set by the Bank based upon\nvarious factors including the Bank's costs and desired return, general\neconomic conditions and other factors, and is used as a reference point for\npricing some loans, which may be priced at, above, or below such announced\nrate.  Any change in the Reference Rate announced by the Bank shall take\neffect at the opening of business on the day specified in the public\nannouncement of such change.\n\n    \"REFERENCE RATE ADVANCE\":  an Advance that bears interest based on the\nReference Rate.\n\n    \"REPORTABLE EVENT\":  any of the events set forth in Section 4043(c) of\nERISA or the regulations thereunder, other than any such event for which the\n30-day notice requirement under ERISA has been waived in regulations issued\nby the PBGC.\n\n    \"REVOLVING FACILITY\":  the line of credit described in Section 2.01.\n\n    \"SPOT RATE\":  for a currency, the rate quoted by the Bank as the spot\nrate for the purchase by the Bank of such currency with another currency\nthrough its Foreign Exchange Trading Center #5193, San Francisco, California,\nor such other of the Bank's offices as it may designate from time to time, at\napproximately 8:00 a.m. (San Francisco time) on the date two Business Days\nprior to the date as of which the foreign exchange computation is made.\n\n    \"SWAP CONTRACT\":  any agreement, whether or not in writing, relating to\nany transaction that is a rate swap, basis swap,\n\n\n                                       6\n\n\n\n\nforward rate transaction, commodity swap, commodity option, equity or equity\nindex swap or option, bond, note or bill option, interest rate option,\nforward foreign exchange transaction, cap, collar or floor transaction,\ncurrency swap, cross-currency rate swap, swaption, currency option or any\nother, similar transaction (including any option to enter into any of the\nforegoing) or any combination of the foregoing, and, unless the context\notherwise clearly requires, any master agreement relating to or governing any\nor all of the foregoing.\n\n    \"SUBSIDIARY\":  of the Borrower, any corporation, association,\npartnership, joint venture, or other business entity of which more than 50%\nof the voting stock or other equity interests (in the case of entities other\nthan corporations), is owned or controlled directly or indirectly by the\nBorrower or one or more Subsidiaries of the Borrower or a combination thereof.\n\n    \"TANGIBLE NET WORTH\":  the gross book value of the assets of the Borrower\nand its Subsidiaries on a consolidated basis (exclusive of goodwill, patents,\ntrademarks, trade names, organization expense, treasury stock, unamortized\ndebt discount and expense, deferred charges, and other like intangibles and\nmonies due from Affiliates other than Subsidiaries of the Borrower, officers,\ndirectors, or shareholders of the Borrower) less (a) reserves applicable\nthereto, and (b) all liabilities (including accrued and deferred income taxes).\n\n    \"UNFUNDED PENSION LIABILITY\":  the excess of a Plan's benefit liabilities\nunder Section 4001(a)(16) of ERISA, over the current value of that Plan's\nassets, determined in accordance with the assumptions used for funding the\nPension Plan pursuant to Section 412 of the Code for the applicable plan year.\n\n    1.02  FINANCIAL REQUIREMENTS.  Unless otherwise specified in this\nAgreement, all accounting terms used in this Agreement shall be interpreted,\nall financial computations required under this Agreement shall be made, and\nall financial information required under this Agreement shall be prepared, in\naccordance with generally accepted accounting principles in effect from time\nto time in the United States, consistently applied.\n\n\n                                 ARTICLE II\n\n                            THE CREDIT FACILITIES\n\n    2.01  THE REVOLVING FACILITY.  (a)  From time to time during the\nAvailability Period, subject to the terms and provisions hereof, the Bank, on\na revolving basis, will (i) make Advances to the Borrower or an Acceptable\nSubsidiary (iii) create and issue commercial and standby letters of credit\nfor the Borrower's or an Acceptable Subsidiary's account.\n\n\n                                       7\n\n\n\n\n         (b)  Advances hereunder may be made in (i) dollars (\"DOLLAR \nADVANCES\"), or (ii) in a lawful currency other than dollars which is \navailable at a branch or affiliate of the Bank located in a country other \nthan the United States and is the legal tender of that country where the \nbranch or affiliate is located (a \"LOCAL CURRENCY\") (\"LOCAL CURRENCY \nADVANCES\").\n\n         (c)  The aggregate dollar Equivalent Amount of (i) all Advances, and \n(ii) the L\/C Outstanding Amount of all letters of credit may not exceed at \nany one time the Credit Limit.\n\n         (d)  The aggregate dollar Equivalent Amount of the L\/C Outstanding \nAmounts in respect of both commercial and standby letters of credit may not \nexceed at any time $5,000,000.\n\n    2.02  DOLLAR ADVANCES UNDER THE REVOLVING FACILITY.  (a)  Subject to the \nother provisions of this Section, Dollar Advances under the Revolving \nFacility shall bear interest at a rate per annum equal to the Reference Rate \n(the Reference Rate is sometimes referred to herein as the \"FLOATING RATE\").  \nThe Borrower or an Acceptable Subsidiary shall request Floating Rate Advances \n(i) by giving irrevocable written notice in the form of a Notice of Borrowing \nor (ii) by giving irrevocable oral notice by telephone in accordance with \nSection 9.10 followed promptly by facsimile confirmation in the form of a \nNotice of Borrowing; prior to 9:00 a.m. San Francisco time on the requested \ndate of the Advance. The Borrower shall pay or cause the applicable \nAcceptable Subsidiary to pay interest quarterly, on the last day of each \ncalendar quarter until the Final Maturity Date, on which date all accrued and \nunpaid interest shall be due and payable.  The Borrower shall repay or cause \nthe applicable Acceptable Subsidiary to repay the principal amount of each \nReference Rate Advance on the Final Maturity date and on the date such \nadvance is converted into an Offshore Rate Advance under subsection (b) below.\n\n         (b) In lieu of the Floating Rate, the Borrower or the applicable \nAcceptable Subsidiary may elect during the Availability Period to have all or \nportions of Advances under the Revolving Facility bear interest at the \nOffshore Rate plus 1.0% per annum during an Offshore Rate Interest Period, \nsubject to the following requirements:\n\n              (i)   Each Offshore Rate Advance shall be for an amount not \n     less than $250,000 and multiples of $50,000 in excess thereof.\n\n              (ii)  The Borrower shall pay or shall cause the applicable \n     Acceptable Subsidiary to pay interest on each Offshore Rate Advance on \n     the last day of the Offshore Rate Interest Period for such Advance; \n     PROVIDED, HOWEVER, that if any Interest Period for an Offshore Rate \n     Advance exceeds three months, interest shall also be payable on the date \n     which falls three months after the beginning of such \n\n                                       8\n\n\n\n     Interest Period and on each date which falls three months after any such \n     interest payment date. The Borrower shall repay or shall cause the \n     applicable Acceptable Subsidiary to repay the principal balance of each \n     Offshore Rate Advance on the last day of the Offshore Rate Interest \n     Period for such Advance, and (if sooner occurring) on the Final Maturity \n     Date.\n\n              (iii)  Any payment of an Offshore Rate Advance prior to \n     the last day of the Offshore Rate Interest Period for such Advance, \n     whether voluntary, by reason of acceleration or otherwise, including any \n     mandatory payments required under this Agreement and applied by the Bank \n     to an Offshore Rate Advance, shall be accompanied by the amount of \n     accrued interest on the amount repaid and by the amount (if any) \n     required by Section 3.11.\n\n    The Borrower or an Acceptable Subsidiary shall request Offshore Rate \nAdvances by giving irrevocable written notice in the form of a Notice of \nBorrowing prior to 9:00 a.m. San Francisco time three Business Days prior to \nthe requested date of the Advance.\n\n    2.03  CONVERSION AND CONTINUATION ELECTIONS.  (a)  The Borrower or an \nAcceptable Subsidiary may, upon irrevocable written notice in the form of a \nNotice of Conversion\/Continuation.\n\n              (i)  elect, as of any Business Day, in the case of \n     Floating Rate Advances, or as of the last day of the applicable Offshore \n     Rate Interest Period, in the case of any Offshore Rate Advance, to \n     convert any such Advances (or any part thereof in an amount not less \n     than $250,000, or that is in an integral multiple of $50,000 in excess \n     thereof) into Advances of the other type; or\n\n              (ii)  elect, as of the last day of the applicable Offshore \n     Rate Interest Period, to continue any Offshore Rate Advance having \n     Interest Periods expiring on such day (or any part thereof in an amount \n     not less than $250,000 or that is in an integral multiple of $50,000 in \n     excess thereof);\n\nPROVIDED, that if at any time the aggregate amount of Offshore Rate Advances \nis reduced, by payment, prepayment, or conversion of part thereof to be less \nthan $250,000, such Offshore Rate Advances shall automatically convert into \nFloating Rate Advances, and on and after such date the right of the Borrower \nor an Acceptable Subsidiary to continue such Advances as, and convert such \nAdvances into, Offshore Rate Advances shall terminate.\n\n         (b)  The Borrower or an Acceptable Subsidiary shall deliver a Notice \nof Conversion\/Continuation to be received by the Agent not later than 9:00 \na.m. San Francisco time at least \n\n                                       9\n\n\n\n(i) three Business Days in advance of the Conversion\/Continuation Date, if \nthe Advances are to be converted into or continued as Offshore Rate Advances; \nand (ii) on or before the Conversion\/Continuation Date, if the Advances are \nto be converted into Floating Rate Loans.\n\n         (c)  If upon the expiration of any Offshore Rate Interest Period, \nthe Borrower or an Acceptable Subsidiary has failed to select timely a new \nOffshore Rate Interest Period to be applicable to such Offshore Rate \nAdvances, or if any Default or Event of Default then exists, the Borrower or \nan Acceptable Subsidiary shall be deemed to have elected to convert such \nOffshore Rate Advances into Floating Rate Advances effective as of the \nexpiration date of such Offshore Rate Interest Period.\n\n    2.04  COMMERCIAL LETTERS OF CREDIT UNDER THE REVOLVING FACILITY. (a)  \nEach commercial letter of credit shall be issued pursuant to the terms and \nconditions hereof and of a Bank standard form Application and Security \nAgreement for Commercial Letter of Credit (or such other form as the Bank may \nrequire) executed by the Borrower or an Acceptable Subsidiary.\n\n         (b)  Each commercial letter of credit shall:\n\n              (i)    expire on or before six months after the date such \n     letter of credit is issued, but in no event later than the Final \n     Maturity Date;\n\n              (ii)   require drafts payable in dollars at sight;\n\n              (iii)  be in favor of beneficiaries and for purposes not \n     prohibited by any law or regulation; and\n\n              (iv)   be otherwise in form and substance satisfactory to \n     the Bank.\n\n         (c)  The Borrower shall pay or cause the applicable Acceptable \nSubsidiary to pay to the Bank an issuance fee of .125% of the face amount, \nand a negotiation fee of .125% of the face amount, and such other standard \nfees and commissions charged to Bank customers at the times and in the \namounts the Bank advises the Borrower from time to time as being applicable \nto the Borrower's or the Acceptable Subsidiary's commercial letters of credit.\n\n         (d)  In the event of any request for a drawing under a commercial \nletter of credit, the Bank will notify the Borrower.  The Borrower or the \napplicable Acceptable Subsidiary may, subject to satisfaction of all \nconditions to borrowing set forth in this Agreement, convert the amount of \neach drawing into a Reference Rate Advance (which conversion shall be deemed \nto be a new Advance).  With respect to any unreimbursed drawing which is not \nconverted into a Reference Rate Advance in whole or in part, because of the \nBorrower's failure to satisfy the conditions set \n\n                                      10\n\n\n\nforth in Section 4.02 or for any other reason, the Borrower shall reimburse \nor cause the applicable Acceptable Subsidiary to reimburse the Bank prior to \n11:00 a.m. (San Francisco time), on each date that any amount is paid by the \nBank under any commercial letter of credit, in an amount equal to the amount \nso paid by the Bank.  Such reimbursement obligations in respect of drawings, \nif not paid when due, shall bear interest, payable on demand, from the date \nof such drawing or payment, at the Floating Rate plus 2.0%.\n\n         (e)  At the expiration of the Availability Period, the Bank may \nrequire the Borrower to provide or cause the applicable Acceptable Subsidiary \nto provide cash collateral in the amount of the L\/C Outstanding Amount of any \ncommercial letters of credit outstanding under this Agreement.  In addition \nto any other rights or remedies which the Bank may have under this Agreement \nor otherwise, upon the occurrence of an Event of Default, the Bank may \nrequire the Borrower to provide or cause the applicable Acceptable Subsidiary \nto provide cash collateral in the amount of the L\/C Outstanding Amount of any \ncommercial letters of credit outstanding under this Agreement.\n\n    2.05  STANDBY LETTERS OF CREDIT UNDER THE REVOLVING FACILITY.  (a) Each \nstandby letter of credit shall be issued pursuant to the terms and conditions \nhereof and of a Bank standard form Application and Agreement for Standby \nLetter of Credit (or such other form as the Bank may require) executed by the \nBorrower or an Acceptable Subsidiary.\n\n         (b)  Each standby letter of credit shall:  (i) expire on or before \none year after the date such letter of credit is issued, but in no event \nlater than the Final Maturity Date; (ii) be in favor of beneficiaries and for \npurposes not prohibited by any law or regulation; and (iii) be otherwise in \nform and substance satisfactory to the Bank.\n\n         (c)  The Borrower shall pay or cause the applicable Acceptable \nSubsidiary to pay to the Bank a non-refundable fee equal to 1.0% per annum of \nthe outstanding undrawn amount of each financial standby letter of credit and \n .50% per annum of the outstanding undrawn amount of each performance standby \nletter of credit payable quarterly in advance, and calculated on the basis of \nthe face amount outstanding on the day the fee is calculated.  However, if an \nEvent of Default exists, at the option of the Bank, the amount of the fee \nshall be increased to 2.0% per annum, commencing on the day the Bank provides \nnotice of the increase to the Borrower.  The Borrower shall also pay or cause \nthe applicable Acceptable Subsidiary to pay the standard fees and commissions \ncharged to Bank customers at the times and in the amounts the Bank advises \nthe Borrower from time to time as being applicable to the Borrower's or the \nAcceptable Subsidiary's standby letters of credit.\n\n                                      11\n\n\n\n         (d)  In the event of any request for a drawing under a standby \nletter of credit, the Bank will notify the Borrower.  The Borrower or the \napplicable Acceptable Subsidiary may, subject to satisfaction of all \nconditions to borrowing set forth in this Agreement, convert the amount of \neach drawing into a Reference Rate Advance (which conversion shall be deemed \nto be a new Advance).  With respect to any unreimbursed drawing which is not \nconverted into a Reference Rate Advance in whole or in part, because of the \nBorrower's failure to satisfy the conditions set forth in Section 4.02 or for \nany other reason, the Borrower shall reimburse or cause the applicable \nAcceptable Subsidiary to reimburse the Bank prior to 11:00 a.m. (San \nFrancisco time), on each date that any amount is paid by the Bank under any \nstandby letter of credit, in an amount equal to the amount so paid by the \nBank.  Such reimbursement obligations in respect of drawings, if not paid \nwhen due, shall bear interest, payable on demand, from the date of such \ndrawing or payment, at the Floating Rate plus 2.0%.\n\n         (e)  At the expiration of the Availability Period, the Bank may \nrequire the Borrower to provide or cause the applicable Acceptable Subsidiary \nto provide cash collateral in the amount of the L\/C Outstanding Amount of any \nstandby letters of credit outstanding under this Agreement.  In addition to \nany other rights or remedies which the Bank may have under this Agreement or \notherwise, upon the occurrence of an Event of Default, the Bank may require \nthe Borrower to provide or cause the applicable Acceptable Subsidiary to \nprovide cash collateral in the amount of the L\/C Outstanding Amount of any \nstandby letters of credit outstanding under this Agreement.\n\n    2.06  LOCAL CURRENCY ADVANCES.  (a)  From time to time during the \nAvailability Period, the Borrower or an Acceptable Subsidiary may request by \ngiving written notice in the form of a Notice of Borrowing the Bank or any \nOffshore Credit Provider may, in its sole discretion, make Local Currency \nAdvances to the Borrower or to an Acceptable Subsidiary. \n\n          (b)  Neither the Bank nor any Offshore Credit Provider shall have \nany obligation to make any Local Currency Advance unless the following \nconditions are satisfied:\n\n              (i)   the Bank and the Borrower or the relevant Acceptable \nSubsidiary agree, at the time of Borrower's or such Acceptable Subsidiary's \nrequest for a Local Currency Advance, on the currency, the amount, the date \nof the Advance, the principal payment date(s), the interest rate and payment \ndate(s), the prepayment and overdue payment terms, and the reserve, tax and \nother material provisions for such Advance; and\n\n              (ii)  The Borrower or such Acceptable Subsidiary shall execute \nsuch additional documentation as the Bank or such Offshore Credit Provider \nmay require relating to each Local Currency Advance.\n\n                                      12\n\n\n\n      2.07  INTENTIONALLY OMITTED.\n\n      2.08  MANDATORY PAYMENT.  If at any time and for any reason the total \namount of credit outstanding under this Agreement exceeds the limitations set \nforth herein, the Borrower shall or shall cause the applicable Acceptable \nSubsidiary to pay to the Bank, upon demand, the amount of the excess \nprovided, that if the foregoing applies due to a change between Dollars and \nLocal Currencies, the Borrower shall be obligated to pay or cause the payment \nof such amount only if the excess is greater than $100,000 or the Equivalent \nAmount thereof.  Payments under this Section may be applied to the \nobligations of the Borrower or the Acceptable Subsidiaries to the Bank in the \norder and manner as the Bank in its discretion may determine; PROVIDED, \nhowever, that if no Default or Event of Default exists at the time of such \npayments, Borrower may designate the obligations to which such payments shall \nbe applied.  Payments may also be held as cash collateral to secure letters \nof credit and may be used to prepay drafts accepted under letters of credit, \nat the Bank's option.\n\n    2.09  INTENTIONALLY OMITTED.\n\n    2.10  COMMITMENT FEE.  The Borrower shall pay to the Bank a commitment \nfee at the rate of .20% per annum on the average daily unused portion of the \ncredit provided under this Agreement.  For purposes of computing the unused \nportion, the L\/C Outstanding Amount shall be deemed to be usage.  The \ncommitment fee shall be computed on a calendar quarter basis, except for the \nfirst period which shall commence on the Closing Date, and end on September \n30, 1997, and the last period which shall end on the Final Maturity Date in \nrespect of Advances.  The commitment fee shall be payable in arrears on \nSeptember 30, 1997, on the last day of each successive quarter thereafter, \nand on the Final Maturity Date in respect of Advances.\n\n    2.11  DEFAULT RATE.  Upon the occurrence and during the continuation of \nany Event of Default, and without constituting a waiver of any such Event of \nDefault, Advances under the Revolving Facility shall at the option of the \nBank bear interest at a rate per annum which is 2.0% per annum higher than \nthe rate of interest otherwise provided under this Agreement.\n\n    2.12  EARLY TERMINATION OF COMMITMENT.  The Borrower may at any time \nterminate or permanently reduce by increments of $1,000,000 the Bank's \n(including any Offshore Credit Provider's) commitment to extend credit \nhereunder by giving no less than five Business Days' prior notice to the Bank \nand paying in full the entire amount of credit outstanding hereunder \n(including the L\/C Outstanding Amount) or, in the case of a reduction of the \ncommitment, that amount which is in excess of the reduced commitment, \ntogether with any sums due under Section 3.11.  If the commitment is \nterminated, payments shall be applied to letters of credit and drafts \naccepted under letters of credit, \n\n                                      13\n\n\n\nmay, at the Bank's option, be used to prepay, or held as cash collateral to \nsecure, the Borrower's and Acceptable Subsidiaries' obligations to the Bank \nor any Offshore Credit Provider with respect thereto.  All accrued commitment \nfees to, but not including the effective date of any termination of the \ncommitment, shall be paid on the effective date of such termination.\n\n                                 ARTICLE III\n                                       \n            EXTENSIONS OF CREDIT, PAYMENTS AND INTEREST CALCULATIONS\n\n    3.01  INTENTIONALLY OMITTED.\n\n    3.02  DISBURSEMENTS AND PAYMENTS.  Each disbursement by the Bank and each \npayment by the Borrower or an Acceptable Subsidiary under this Agreement \nshall be made in the funds and at such branch of the Bank as the Bank may \nfrom time to time select.\n\n    3.03  INTENTIONALLY OMITTED.\n\n    3.04  EVIDENCE OF INDEBTEDNESS.  Principal, interest, and all other sums \ndue to the Bank (or any Offshore Credit Provider) under this Agreement shall \nbe evidenced by entries in records maintained by the Bank (or such Offshore \nCredit Provider), and, if required by the Bank, by a promissory note or \nnotes.  Each payment on and any other credits with respect to principal, \ninterest, and all other sums due under this Agreement shall be evidenced by \nentries to records maintained by the Bank or such Offshore Credit Provider.  \nThe loan accounts or records maintained by the Bank or any Offshore Credit \nProvider shall be conclusive absent manifest error of the amount of the \ncredit extended hereunder and the interest and payments thereon.  Any failure \nto so record or any error in doing so shall not, however, limit or otherwise \naffect the obligation of the Borrower or any Acceptable Subsidiary hereunder \nto pay any amount owing.\n\n    3.05  INTEREST CALCULATION.  Interest based on the Reference Rate shall \nbe computed on the basis of a 365\/366-day year and actual days elapsed.  All \nother interest and fees payable under this Agreement shall be computed on the \nbasis of a 360 day year and actual days elapsed, which results in more \ninterest or a larger fee than if a 365-366 day year were used.\n\n    3.06  LATE PAYMENTS; COMPOUNDING.  Any sum payable by the Borrower or an \nAcceptable Subsidiary hereunder (including unpaid interest) if not paid when \ndue shall bear interest (payable on demand) from its due date until payment \nin full at a rate per annum equal to the Floating Rate plus 2.0% per annum.  \nAt the option of the Bank, in each instance, any sum payable hereunder which \nis not paid when due (including unpaid interest) may be \n\n                                      14\n\n\n\nadded to principal of the Revolving Facility and shall thereafter bear \ninterest at the rate applicable to principal.\n\n    3.07  BUSINESS DAY.  Any sum payable by the Borrower or an Acceptable \nSubsidiary hereunder which becomes due on a day which is not a Business Day \nshall be due on the next Business Day after such due date, unless, in the \ncase of an Offshore Rate Loan, the result of such extension would be to carry \nsuch Offshore Rate Interest Period into another calendar month, in which \nevent such Offshore Rate Interest Period shall end on the immediately \npreceding Business Day.  Any payments received by the Bank or an Offshore \nCredit Provider on a day which is not a Business Day shall be deemed to be \nreceived on the next Business Day after such date of receipt.\n\n    3.08  TAXES AND OTHER CHARGES.  (a) (i)  If any taxes (other than taxes \non net income (A) imposed by the country or any subdivision of the country in \nwhich the Bank's or any Offshore Credit Provider's principal office or actual \nlending office is located and (B) measured by the United States taxable \nincome the Bank would have received if all payments under or in respect of \nthis Agreement and any instrument or agreement required hereunder were exempt \nfrom taxes levied by the Borrower's or the applicable Acceptable Subsidiary's \ncountry) are at any time imposed on any payments under or in respect of this \nAgreement or any instrument or agreement required hereunder including, but \nnot limited to, payments made pursuant to this Section, the Borrower shall \npay or shall cause the applicable Acceptable Subsidiary to pay all such taxes \nand shall also pay or cause to be paid to the Bank, at the time interest is \npaid, all additional amounts which the Bank specifies as necessary to \npreserve the after-tax yield the Bank would have received if such taxes had \nnot been imposed.\n\n                   (ii)  The additional amounts necessary to preserve the \nafter-tax yield the Bank would have received if such taxes had not been \nimposed shall be calculated pursuant to the formula:\n\n                              (w)(t)(i)\n                         y = -----------\n                                1-w-t\n\nwhere the terms are defined as follows:\n\n              y = additional payment to be made to the Bank\n\n              w = withholding tax rate levied by foreign government\n\n              t = the Bank's combined Federal and state tax rate\n\n                                      15\n\n\n\n              i  = amount of interest to be paid on Credit (computed by using \n                   the Offshore Rate or Reference Rate or other index rate, as \n                   applicable plus the quoted margin over such rate)\n\n              1  = one\n\n\n         (b)  The Borrower will provide the Bank with original tax receipts, \nnotarized copies of tax receipts, or such other documentation as will prove \npayment of tax in a court of law applying the United States Federal Rules of \nEvidence, for all taxes paid by the Borrower or an Acceptable Subsidiary \npursuant to subsection (a) above.  The Borrower will deliver receipts to the \nBank within 30 days after the due date for the related tax.\n\n      3.09  ILLEGALITY.  (a)  If the Bank determines that (i) the \nintroduction of any law, rule, regulation, treaty, or determination of an \narbitrator or court or other governmental authority or any change in or in \nthe interpretation or administration thereof has made it unlawful, or that \nany central bank or other governmental authority has asserted that it is \nunlawful, for the Bank (directly or through any Offshore Credit Provider) to \nmake or extend any Advance or other credit under this Agreement, or (ii) any \norder, judgment, or decree of any governmental authority or arbitrator \npurports by its terms to enjoin or restrain the Bank (or any Offshore Credit \nProvider) from making or extending any Advance or other credit hereunder, \nTHEN, on notice thereof by the Bank to the Borrower, the obligation of the \nBank to make or extend such Advance or other credit (directly or through any \nOffshore Credit Provider) shall be suspended until the Bank shall have \nnotified the Borrower that the circumstances giving rise to such \ndetermination no longer exist.\n\n         (b)  If the Bank determines that it is unlawful for it or any \napplicable Offshore Credit Provider to maintain any Offshore Rate Advance or \nLocal Currency Advance hereunder, the Borrower shall or shall cause the \napplicable Acceptable Subsidiary to prepay in full all Offshore Rate Advances \nor Local Currency Advances, as the case may be then outstanding, together \nwith interest accrued thereon, either on the last day of the applicable \nOffshore Rate Interest Period or the interest period applicable to the Local \nCurrency Advance if the Bank or such Offshore Credit Provider may lawfully \ncontinue to maintain such Advances to such day and such loans have an \ninterest period, or immediately, if the Bank may not lawfully continue to \nmaintain such Advances or such loans have no interest period, together with \nany amounts required to be paid in connection therewith pursuant to Section \n3.11.\n\n    3.10  INCREASED COSTS.  (a) If the Bank determines that, due to either \n(i) the introduction of or any change (other than any \n\n                                      16\n\n\n\nchange by way of imposition of or increase in reserve requirements included \nin the calculation of the Offshore Rate) in or in the interpretation of any \nlaw or regulation or (ii) the compliance by the Bank with any guideline or \nrequest from any central bank or other governmental authority (whether or not \nhaving the force of law), there shall be any increase in the cost to the Bank \nof agreeing to make or making, funding or maintaining any Offshore Rate \nAdvances, then the Borrower shall be liable for, and shall from time to time, \nupon demand (with a copy of such demand to be sent to the Agent), pay to the \nBank, additional amounts as are sufficient to compensate the Bank for such \nincreased costs.\n\n         (b)  If the Bank shall have determined that (i) the introduction of \nany Capital Adequacy Regulation, (ii) any change in any Capital Adequacy \nRegulation, (iii) any change in the interpretation or administration of any \nCapital Adequacy Regulation by any central bank or other governmental \nauthority charged with the interpretation or administration thereof, or (iv) \ncompliance by the Bank (or its Offshore Credit Provider) or any corporation \ncontrolling the Bank with any Capital Adequacy Regulation, affects or would \naffect the amount of capital required or expected to be maintained by the \nBank or any corporation controlling the Bank and (taking into consideration \nthe Bank's or such corporation's policies with respect to capital adequacy \nand the Bank's desired return on capital) determines that the amount of such \ncapital is increased as a consequence of its commitment, Advances, credits or \nobligations under this Agreement, then, upon demand of the Bank to the \nBorrower, the Borrower shall pay to the Bank, from time to time as specified \nby the Bank, additional amounts sufficient to compensate the Bank for such \nincrease.\n\n    3.11  FUNDING LOSSES.  The Borrower shall reimburse the Bank and hold the \nBank harmless from any loss or expense which the Bank may sustain or incur as \na consequence of the failure of the Borrower (or any Acceptable Subsidiary) \nto make any payment or prepayment of principal of any Advance hereunder made \nat a rate of interest related to the Offshore Rate (including payments made \nafter any acceleration thereof), or to borrow at such a rate, or the \nprepayment of an Advance which bears interest at such a rate on a day which \nis not the last day of the interest period with respect thereto (including \npayments made after any acceleration thereof or because the total amount of \ncredit exceeds the limitations set forth herein), or the redenomination and \nconversion, upon the occurrence of any Event of Default, of an Advance which \nbears interest at such a rate; including any such loss or expense arising \nfrom the liquidation or reemployment of funds obtained by it to maintain its \nAdvances made at a rate related to the Offshore Rate hereunder or from fees \npayable to terminate any deposits from which such funds were obtained or \ndeemed obtained.\n\n                                      17\n\n\n\n    3.12  INABILITY TO DETERMINE RATES.  The Bank has no obligation to accept \nan election for an Offshore Rate Advance if (a) deposits in the applicable \ncurrency and in the principal amount, and for the period equal to the \ninterest period, for such Advance are not available in the applicable funding \nmarket; or (b) the Offshore Rate does not accurately reflect the cost of such \nAdvance.  Nothing contained herein shall, however, obligate the Bank to \nobtain the funds for any Advance in any particular manner.\n\n    3.13  CERTIFICATE OF THE BANK.  If the Bank claims any reimbursement or \ncompensation pursuant to Section 3.10 or Section 3.11, then the Bank shall \ndeliver to the Borrower a certificate setting forth in reasonable detail the \namount payable to the Bank thereunder and such certificate shall be \nconclusive and binding on the Borrower in the absence of manifest error.\n\n    3.14  SURVIVAL.  The agreements and obligations of the Borrower under \nSections 3.08 through 3.11 shall survive the expiration or termination of the \ncommitment to extend credit hereunder and the payment of all other \nobligations of the Borrower and the Acceptable Subsidiaries hereunder.\n\n                                  ARTICLE IV\n                                       \n                      CONDITIONS TO AVAILABILITY OF CREDIT.\n\n    The Bank's obligation to extend credit under this Agreement is subject to \nthe Bank's receipt of the following, each in form and substance satisfactory \nto the Bank:\n\n    4.01  CONDITIONS TO FIRST EXTENSION OF CREDIT.  Before the first \nextension of credit to the Borrower or, as the case may be, to an Acceptable \nSubsidiary:\n\n         (a)  This Agreement, executed by the Borrower;\n\n         (b)  Satisfactory evidence of due authorization of the execution, \ndelivery, and performance by the Borrower and, as required by the Bank, the \nAcceptable Subsidiary of this Agreement and any other Credit Documents, \nincluding certified resolutions, incumbency certificate, articles of \nincorporation and bylaws;\n\n         (c)  If requested by the Bank, an opinion of counsel for the \nBorrower or the Acceptable Subsidiary (which counsel must be satisfactory to \nthe Bank) with respect to such legal matters relating hereto as the Bank may \nreasonably request;\n\n         (d)  Certificates of state officials showing that the Borrower and \nthe Acceptable Subsidiary is in good standing or qualified to conduct \nbusiness under the laws of the state of its \n\n                                      18\n\n\n\norganization and, if requested by the Bank, in any other state in which the \nBorrower and the Acceptable Subsidiary is required to be so qualified;\n\n         (e)  A certificate of an appropriate officer of the Borrower as to \nthe matters set forth in Section 4.02(a) and (b);\n\n         (f)  Payment of any fee or expense required hereunder prior to the \nfirst extension of credit;\n\n         (g)  In the case of the first extension of credit to the Acceptable \nSubsidiary, a continuing guaranty in favor of the Bank, executed by the \nBorrower, guaranteeing all debts and obligations (whether contingent or \notherwise) of that Acceptable Subsidiary arising under or in connection with \nthis Agreement;\n\n         (h)  Such other approvals, opinions, documents or instruments as the \nBank may reasonably request.\n\n    4.02  CONDITIONS TO EACH EXTENSION OF CREDIT.  Before each extension or \nrenewal of credit (including pursuant to any election under Section 2.02(b)), \nincluding the first:\n\n         (a)  The representations and warranties of the Borrower contained in \nthis Agreement shall be true in all material respects on and as of the date \nof each extension of credit (except to the extent such representations and \nwarranties relate to an earlier date, in which case, they are true and \ncorrect in all material respects on and as of that date);\n\n         (b)  Immediately prior to and immediately after giving effect to \nsuch extension of credit, no Default or Event of Default shall exist;\n\n         (c)  Executed originals of all Credit Documents required under \nArticle II shall have been delivered to the Bank.\n\n    Each request for an extension of credit hereunder shall constitute a \nrepresentation and warranty by the Borrower, as of the date of each such \nrequest and as of the date of each extension of credit, that the conditions \nin this Section are satisfied.\n\n                                   ARTICLE V\n                                       \n                          REPRESENTATIONS AND WARRANTIES\n\n    The Borrower represents and warrants that:\n\n    5.01  CORPORATE EXISTENCE AND POWER.  The Borrower and each of its \nSubsidiaries:  (a) is a corporation duly organized and existing under the \nlaws of the jurisdiction of its organization; (b) has the power and authority \nand all governmental licenses, authorizations, consents, and approvals to own \nits assets, carry \n\n                                      19\n\n\n\non its business, and to execute, deliver, and perform its obligations under, \nthe Credit Documents to which it is a party; and (c) is duly qualified and \nproperly licensed and in good standing under the laws of each jurisdiction \nwhere the failure to so qualify would have a Material Adverse Effect.\n\n    5.02  AUTHORIZATION.  The execution, delivery, and performance by the \nBorrower and each Acceptable Subsidiary of this Agreement and any other \nCredit Document to which any of them is a party, have been duly authorized by \nall necessary corporate action, and do not and will not:\n\n         (a)  contravene the terms of any organizational or charter documents;\n\n         (b)  conflict with or result in any breach or contravention of, or \nthe creation of any lien, security interest, or charge under, any material \nagreement, contract, indenture, document, or instrument to which the Borrower \nor any Acceptable Subsidiary is a party or by which any property is bound, or \nany order, injunction, writ, or decree of any governmental authority to which \nthe Borrower or any Acceptable Subsidiary or any property is subject; or\n\n         (c)  violate any law, rule, regulation, or determination of an \narbitrator or of a court or other governmental authority, in each case \napplicable to or binding upon the Borrower or any Acceptable Subsidiary or \nany property.\n\n    5.03  ENFORCEABILITY.  This Agreement is a legal, valid, and binding \nagreement of the Borrower, enforceable against the Borrower in accordance \nwith its terms, and the other Credit Documents and any other instrument or \nagreement required under this Agreement, when executed and delivered, will be \nlegal, valid, binding, and enforceable in accordance with its terms against \nthe Borrower or the Acceptable Subsidiary, as applicable.\n\n    5.04  COMPLIANCE WITH LAWS.  The Borrower and each of its Subsidiaries is \nin compliance with all foreign, federal, state and local laws, rules, \nregulations and determinations of arbitrators, courts and other governmental \nauthorities materially affecting the business, operations or property of the \nBorrower and its Subsidiaries (including Environmental Laws).\n\n    5.05  PERMITS, FRANCHISES.  The Borrower and its Subsidiaries possess all \npermits, memberships, franchises, contracts, and licenses required and all \ntrademark rights, trade name rights, patent rights, and fictitious name \nrights necessary to enable the Borrower and its Subsidiaries to conduct the \nbusinesses in which they are now engaged.\n\n    5.06  LITIGATION.  There is no litigation, tax claim, proceeding, \ngovernmental or administrative action, \n\n                                      20\n\n\n\ninvestigation, arbitration proceeding or dispute pending, or, to the \nknowledge of the Borrower, threatened, against or affecting the Borrower or \nany of its Subsidiaries or any of their properties, the adverse determination \nof which would result in a Material Adverse Effect.\n\n    5.07  NO EVENT OF DEFAULT.  There exists no Default or Event of Default.\n\n    5.08  OTHER OBLIGATIONS.  As of the Closing Date, the Borrower and its \nSubsidiaries are not in default under any other material agreement involving \nthe borrowing of money, the extension of credit, or the lease of real or \npersonal property, to which the Borrower or any of its Subsidiaries is a \nparty as borrower, guarantor, installment purchaser, or lessee, except as \ndisclosed in writing to the Bank prior to the Closing Date.\n\n    5.09  TAX RETURNS.  The Borrower has no knowledge of any material pending \nassessments or adjustments with respect to its or its Subsidiaries' income \ntax liabilities for any year, except as disclosed in writing to the Bank \nprior to the Closing Date.\n\n    5.10  INFORMATION SUBMITTED.  All financial and other information that \nhas been submitted by the Borrower or any of its Subsidiaries to the Bank in \nconnection with this Agreement, including the Borrower's financial statement \ndelivered to the Bank most recently prior to the Closing Date: (a) in the \ncase of financial statements, is prepared in accordance with generally \naccepted accounting principles consistently applied; and (b) is true and \ncorrect in all material respects and is complete insofar as may be necessary \nto give the Bank true and accurate knowledge of the subject matter thereof.\n\n    5.11  NO MATERIAL ADVERSE EFFECT.  Since March 31, 1996, there has been \nno Material Adverse Effect.\n\n    5.12  ERISA COMPLIANCE.  Except as specifically disclosed to the Bank in \nwriting prior to the Closing Date: (a) each Plan is in compliance in all \nmaterial respects with the applicable provisions of ERISA, the Code and other \nfederal or state law; (b) there are no pending, or to the best knowledge of \nBorrower, threatened claims, actions or lawsuits, or action by any \ngovernmental authority, with respect to any Plan which has resulted or could \nreasonably be expected to result in a Material Adverse Effect; (c) there has \nbeen no prohibited transaction or other violation of the fiduciary \nresponsibility rule with respect to any Plan which could reasonably result in \na Material Adverse Effect; (d) no ERISA Event has occurred or is reasonably \nexpected to occur with respect to any Pension Plan; (e) no Pension Plan has \nany Unfunded Pension Liability; (f) the Borrower has not incurred, nor does \nit reasonably expect to incur, any liability under Title IV of ERISA with \nrespect to any Pension Plan (other than premiums due and not delinquent under \nSection 4007 of ERISA); (g) no trade or business (whether or not \n\n                                      21\n\n\n\nincorporated under common control with the Borrower within the meaning of \nSection 414(b), (c), (m) or (o) of the Code) maintains or contributes to any \nPension Plan or other Plan subject to Section 412 of the Code; and (h) \nneither the Borrower or entity under common control with the Borrower in the \npreceding sentence has ever contributed to any multiemployer plan within the \nmeaning of Section 4001(a)(3) of ERISA.\n\n    5.13  ENVIRONMENTAL MATTERS.  (a)  Except to the extent that, in the \naggregate, a Material Adverse Effect could not result therefrom, (i) the \nproperties of the Borrower and its Subsidiaries do not contain and have not \npreviously contained (at, under, or about any such property) any Hazardous \nSubstances or other contamination (A) in amounts or concentrations that \nconstitute or constituted a violation of, or could give rise to liability \nunder, any Environmental Laws, (B) which could interfere with the continued \nuse, occupation or operation of such property, (C) which could impair the \nfair market value thereof, or (D) in levels or concentrations requiring \ncleanup or other management under applicable standards or guidelines of \nforeign, federal, state, or local environmental agencies; and (ii) there has \nbeen no transportation or disposal of Hazardous Substances from, nor any \nrelease or threatened release of Hazardous Substances at or from, any \nproperty of the Borrower or any of its Subsidiaries in violation of or in any \nmanner which could give rise to liability under any Environmental Laws.\n\n         (b)  Neither the Borrower nor any of its Subsidiaries has received \nor is aware of any material claim or notice of material violation, alleged \nmaterial violation, non-compliance, liability or potential liability \nregarding environmental matters, Hazardous Substances or compliance with \nEnvironmental Laws with regard to the properties or operations of the \nBorrower or any of its Subsidiaries, nor does the Borrower have knowledge or \nreason to believe that any such action is being contemplated, considered, or \nthreatened.\n\n    5.14  SWAP OBLIGATIONS.  Neither the Borrower nor any of its Subsidiaries \nhas incurred any outstanding obligations under any Swap Contracts, other than \nPermitted Swap Obligations.\n\n                                   ARTICLE VI\n                                       \n                              AFFIRMATIVE COVENANTS\n\n    So long as credit is available under this Agreement and until full and \nfinal payment of all of the Borrower's and any Acceptable Subsidiaries' \nobligations under this Agreement and any other Credit Document:\n\n    6.01  NOTICES OF CERTAIN EVENTS.  The Borrower shall promptly give \nwritten notice to the Bank of:\n\n                                      22\n\n\n\n         (a)  all litigation, proceedings or actions affecting the Borrower \nor its Subsidiaries where the amount claimed is $1,000,000 or more;\n\n         (b)  any substantial dispute which may exist between the Borrower or \nits Subsidiaries and any governmental regulatory body or law enforcement \nauthority;\n\n         (c)  any Default or Event of Default;\n\n         (d)  any of the representations and warranties in Article V which \nceases to be true and correct in all material respects; and\n\n         (e)  any other matter which has resulted or could reasonably be \nexpected to result in a Material Adverse Effect.\n\n    6.02  FINANCIAL AND OTHER INFORMATION.  The Borrower shall deliver to the \nBank in form and detail satisfactory to the Bank, and in such number of \ncopies as the Bank may request:\n\n         (a)  Within 90 days after the end of each fiscal year, the \nBorrower's consolidated financial statements for such year audited by a \ncertified public accountant together with an unqualified opinion of such \ncertified public accountant and including, at a minimum, the Borrower's \nbalance sheet and statements of income, retained earnings, and cash flow;\n\n         (b)  Within 45 days after the end of each fiscal quarter, the \nBorrower's consolidated financial statements for such period prepared by the \nBorrower and including, at a minimum, the Borrower's balance sheet and \nstatements of income, retained earnings, and cash flow;\n\n         (c)  Concurrently with the delivery of the financial statements \nreferred to in subsections 6.02(a) and (b), a completed Compliance \nCertificate executed by the chief financial officer or treasurer of the \nBorrower or other officer having substantially the same authority and \nresponsibility;\n\n         (d)  Within 15 days after the date of filing with the Securities and \nExchange Commission, copies of any of the Borrower's Form 10-K Annual \nReports, Form 10-Q Quarterly Reports and Form 8-K Current Reports; and\n\n         (e)  Promptly upon request, such other materials and information \nrelating to the Borrower or its Subsidiaries as the Bank may reasonably \nrequest.\n\n    6.03  BOOKS, RECORDS, AUDITS AND INSPECTIONS.  The Borrower shall, and \nshall cause its Subsidiaries to, maintain adequate books, accounts and \nrecords, and prepare all financial statements required hereunder in \naccordance with generally accepted accounting principles consistently \napplied, and in \n\n                                      23\n\n\n\ncompliance with the regulations of any governmental regulatory body having \njurisdiction over the Borrower or its Subsidiaries, or the Borrower's or its \nSubsidiaries' businesses, and permit employees or agents of the Bank at any \nreasonable time to inspect the Borrower's and its Subsidiaries' properties, \nand to examine or audit the Borrower's and its Subsidiaries' books, accounts, \nand records and make copies and memoranda thereof.\n\n    6.04  USE OF FACILITY.  The Borrower shall use and shall cause the \nAcceptable Subsidiaries to use the credit facility provided herein solely for \nworking capital and other general corporate purposes not in contravention of \nany requirement of law.\n\n    6.05  INSURANCE.  The Borrower shall, and shall cause its Subsidiaries \nto, maintain and keep in force insurance of the types and in amounts \ncustomarily carried in lines of businesses similar to those of the Borrower \nand its Subsidiaries, including fire, extended coverage, public liability \n(including coverage for contractual liability), property damage (including \nuse and occupance), business interruption, and workers' compensation, all \ncarried by insurers and in amounts reasonably satisfactory to the Bank, and \ndeliver to the Bank from time to time, at the Bank's request, a copy of each \ninsurance policy, or if permitted by the Bank, a certificate of insurance \nsetting forth all insurance then in effect.\n\n    6.06  COMPLIANCE WITH LAWS.  The Borrower shall at all times comply in \nall material respects with, and cause its Subsidiaries to comply with, all \nlaws, statutes (including any fictitious name statute), rules, regulations, \norders, and directions of any governmental authority having jurisdiction over \nthe Borrower or any of its Subsidiaries or the business of the Borrower or \nany of its Subsidiaries (including all Environmental Laws).\n\n    6.07  CHANGE IN NAME, STRUCTURE OR LOCATION.  The Borrower shall notify \nthe Bank in writing prior to any change in (a) the Borrower's name or the \nname of any Acceptable Subsidiary, (b) the Borrower's or any Acceptable \nSubsidiary's business or legal structure, or (c) the Borrower's or any \nAcceptable Subsidiary's place of business or chief executive office if the \nBorrower has more than one place of business.\n\n    6.08  EXISTENCE AND PROPERTIES.  The Borrower shall, and shall cause each \nof its Subsidiaries to, maintain and preserve its existence and all rights, \nprivileges, and franchises necessary to conduct its business, conduct its \nbusiness in an orderly, efficient, and customary manner, keep all the its \nproperties in good working order and condition, and from time to time make \nall needed repairs, renewals, or replacements thereto and thereof so that the \nefficiency of such property shall be fully maintained and preserved.\n\n                                      24\n\n\n\n                                 ARTICLE VII\n\n                             NEGATIVE COVENANTS\n\n    So long as credit is available under this Agreement and until full and \nfinal payment of all of the Borrower's and any Acceptable Subsidiary's \nobligations under this Agreement and any other Credit Document:\n\n    7.01  OTHER INDEBTEDNESS.  The Borrower shall not, and shall not suffer \nor permit any Subsidiary to, create, incur, assume, or permit to exist any \nindebtedness or liabilities for or resulting from borrowed money, loans, or \nadvances, or for the deferred purchase price of property under capital \nleases, or under or in connection with any Swap Contract, whether secured or \nunsecured, matured or unmatured, liquidated or unliquidated, joint or \nseveral, or become liable as a surety, guarantor, accommodation endorser, or \notherwise for or upon the obligation of any other Person; provided, however, \nthat this Section shall not prohibit:\n\n         (a)  indebtedness and guarantees in favor of the Bank or any affiliate\nof the Bank;\n\n         (b)  indebtedness, liabilities, and guarantees outstanding as of the \ndate of this Agreement and specifically disclosed in SCHEDULE 7.01 and \nrefinancings of such existing indebtedness, liabilities, and guarantees on \nsubstantially similar terms as is promptly reported on an amended SCHEDULE 7.01;\n\n         (c)  the acquisition of goods, supplies, or merchandise on normal \ntrade credit;\n\n         (d)  the execution of bonds or undertakings in the ordinary course of\nits business as presently conducted;\n\n         (e)  the endorsement of negotiable instruments received in the ordinary\ncourse of its business as presently conducted;\n\n         (f)  indebtedness arising from purchase money financing of the type\ndescribed in subsection 7.02(f);\n\n         (g)  Permitted Swap Obligations;\n\n         (h)  indebtedness, liabilities and guarantees of all Persons \nacquired by, consolidated with or merged into the Borrower or its \nSubsidiaries as permitted by Section 7.08 of the Agreement; PROVIDED that \nsuch obligations were not incurred in anticipation of the acquisition, \nconsolidation or merger and do not in aggregate amount exceed $10,000,000; and\n\n         (i)  other unsecured indebtedness not to exceed $5,000,000.\n\n\n                                      25\n\n\n\n\n    7.02  LIENS.  The Borrower shall not, and shall not suffer or permit any \nof its Subsidiaries to, create, assume, or suffer to exist any security \ninterest, deed of trust, mortgage, lien (including the lien of an attachment, \njudgment, or execution), or encumbrance, securing a charge or obligation, on \nor of any of its or their property, real or personal, whether now owned or \nhereafter acquired, except:  (a) security interests and deeds of trust in \nfavor of the Bank; (b) liens, security interests, and encumbrances in \nexistence as of the date of this Agreement and specifically disclosed in \nSCHEDULE 7.02; (c) liens for current taxes, assessments, or other governmental\ncharges which are not delinquent or remain payable without any penalty; (d) \nliens in connection with workers' compensation, unemployment insurance, or \nother social security obligations; (e) mechanics', worker's, materialmen's, \nlandlords', carriers', or other like liens arising in the ordinary and normal \ncourse of business with respect to obligations which are not due; (f) purchase\nmoney security interests in personal or real property hereafter acquired when \nthe security interest does not extend beyond the property purchased and where \nthe debt secured does not exceed the value of the property acquired; (g) \nliens consisting of pledges of cash collateral or government securities to \nsecure on a mark-to-market basis Permitted Swap Obligations only, provided \nthat (i) the counterparty to any Swap Contract relating to any such Permitted \nSwap Obligation is under a similar requirement to deliver similar collateral \nfrom time to time to the Borrower or the Subsidiary party thereto on a \nmark-to-market basis; and (ii) the aggregate value of such collateral so \npledged by the Borrower and its Subsidiaries together in favor of any \ncounterparty does not at any time exceed $1,000,000; (h) liens, security \ninterests and encumbrances on the assets of any Person acquired by, \nconsolidated with or merged into the Borrower or its Subsidiaries as \npermitted by Section 7.08 of this Agreement; PROVIDED that such liens, \nsecurity interests and encumbrances were not created in anticipation of the \nacquisition, consolidation or merger and secure liabilities in an aggregate \namount not exceeding, at any one time, $5,000,000; and (i) additional \nsecurity interests or liens which secure liabilities in an aggregate \nprincipal amount not exceeding, at any one time, $1,000,000.\n\n    7.03  INTENTIONALLY OMITTED.\n\n    7.04  INTENTIONALLY OMITTED.\n\n    7.05  INTENTIONALLY OMITTED.\n\n    7.06  DIVIDENDS.  The Borrower shall not, and shall not suffer or permit, \nany of its Subsidiaries that is not wholly-owned by the Borrower to, declare \nor pay any dividends or distributions on any of its shares now or hereafter \nexisting, or purchase, redeem or otherwise acquire for value any of its \nshares, or create any sinking fund in relation thereto, except, dividends \npayable solely in its capital stock.\n\n\n                                      26\n\n\n\n\n    7.07  LOANS.  The Borrower shall not, and shall not suffer or permit any \nof its Subsidiaries to, make any loans, advances, or other extensions of \ncredit to any of the Borrower's or such Subsidiary's executives, officers, or \ndirectors or shareholders (or any relatives of any of the foregoing) other \nthan in the ordinary course of business, or make loans, advances or other \nextensions of credit to or invest in any other Person, other than (a) \ninvestments in cash equivalents; (b) extensions of credit in the nature of \naccounts receivable or notes receivable arising from the sale or lease of \ngoods or services in the ordinary course of business; (c) extensions of \ncredit by the Borrower to any of its wholly-owned Subsidiaries or by any of \nits wholly-owned Subsidiaries to another of its wholly-owned Subsidiaries; \n(d) investments constituting Permitted Swap Obligations or payments or \nadvances under Swap Contracts relating to Permitted Swap Obligations.\n\n    7.08  LIQUIDATIONS AND MERGERS.  The Borrower shall not, and shall not \nsuffer or permit any Subsidiary to, (i) liquidate or dissolve, (ii) enter \ninto any consolidation, merger, partnership, joint venture, or other \ncombination, or (iii) acquire or purchase control of, or the assets or \nbusiness of, any other Person, except that (a) any Subsidiary may merge with \nthe Borrower, provided that the Borrower shall be the continuing or surviving \ncorporation, or with any one or more Subsidiaries, provided that if any \ntransaction shall be between a Subsidiary and a wholly-owned Subsidiary, the \nwholly-owned Subsidiary shall be the continuing or surviving corporation; (b) \nany Subsidiary may sell all or substantially all of its assets (upon voluntary\nliquidation or otherwise), to the Borrower or another wholly-owned \nSubsidiary, and (c) notwithstanding clauses (ii) and (iii), the Borrower and \nits Subsidiaries may enter into any consolidation, merger, partnership, joint \nventure or other combination with, make loans or other extensions of credit \nto or other investments in, or purchase or acquire control or any part of the \ncapital stock, assets or business of, any other Person if (w) such Persons \nare engaged in business activities (including development activities) or \noperations substantially similar to or related to present software and other \nbusiness activities and operations of the Borrower and its Subsidiaries, (x) \nimmediately prior to and after giving effect thereto, there exists no Default \nor Event of Default, (y) in the case of a merger of the Borrower, the \nBorrower is the surviving corporation, and (z) such transaction has been \nundertaken in accordance with all applicable requirements of law.\n\n    7.09  SALE OF ASSETS.  The Borrower shall not, and shall not suffer or \npermit any of its Subsidiaries to, (a) sell, lease, or otherwise dispose of \nits business or assets as a whole or such as in the reasonable opinion of the \nBank constitutes a substantial portion of its business or assets; (b) sell or \notherwise dispose of any of its accounts receivable except in connection with \nthe collection of same in the ordinary course of business; (c) sell or \notherwise dispose of any of its assets \n\n\n                                      27\n\n\n\n\nexcept for full, fair and reasonable consideration; or (d) enter into any \nsale and leaseback agreement covering any of its fixed or capital assets.\n\n    7.10  BUSINESS ACTIVITIES.  The Borrower shall not, and shall not suffer \nor permit any of its Subsidiaries to, engage in any business activities or \noperations substantially different from or unrelated to present business \nactivities and operations.\n\n    7.11  REGULATIONS G, T, U, AND X.  The Borrower shall not, and shall not \nsuffer or permit any of its Subsidiaries to, use any portion of the proceeds \nof any Advances or extensions of credit hereunder, directly or indirectly, \n(i) to purchase or carry margin stock (within the meanings of Regulations G, \nT, U, and X of the FRB), (ii) to repay or otherwise refinance indebtedness of \nthe Borrower or others incurred to purchase or carry any such margin stock, \n(iii) to extend credit for the purpose of purchasing or carrying any such \nmargin stock, or (iv) to acquire any security in any transaction that is \nsubject to Section 13 or 14 of the Securities Exchange Act of 1934, as \namended.\n\n    7.12  INTENTIONALLY OMITTED.\n\n    7.13  QUICK RATIO.  The Borrower shall not permit as of the last day of \nany fiscal quarter on a consolidated basis the sum of cash, short-term cash \ninvestments, marketable securities not classified as long-term investments \nand accounts receivable to be less than 1.35 times current liabilities (which \nshall include the dollar Equivalent Amount of all outstanding Advances and \nthe L\/C Outstanding Amount).\n\n    7.14  TANGIBLE NET WORTH.  The Borrower shall not permit as of the last \nday of any fiscal quarter on a consolidated basis its Tangible Net Worth to \nbe less than (i) 90% of its Tangible Net Worth as of December 31, 1996, PLUS \n(ii) 100% of the net proceeds received from the issuance of equity after \nDecember 31, 1996, LESS up to $20,000,000 in intangible assets acquired after \nDecember 31, 1996 to the extent that such intangible assets are recognized as \na result of an acquisition of a company or line of business and the \nintangible assets are recorded on the Borrower's books in the same quarter as \nthat in which the acquisition is consummated.\n\n    7.15  TOTAL LIABILITIES TO TANGIBLE NET WORTH.  The Borrower shall not \npermit as of the last day of any fiscal quarter on a consolidated basis the \nBorrower's total liabilities (which shall include the dollar Equivalent \nAmount of all outstanding Advances and the L\/C Outstanding Amount) to exceed \n0.75 times its Tangible Net Worth.\n\n    7.16  CONSECUTIVE QUARTERLY LOSSES; LOSSES IN ONE QUARTER.  The Borrower \non a consolidated basis shall not incur, (a) any quarterly net or operating \nlosses in any two consecutive fiscal \n\n\n                                      28\n\n\n\n\nquarters or (b) any quarterly net or operating loss in excess of 5% of \nconsolidated Tangible Net Worth computed as of the last day of the \nimmediately preceding fiscal quarter.\n\n                                ARTICLE VIII\n\n                              EVENTS OF DEFAULT\n\n    8.01  EVENTS OF DEFAULT.  The occurrence of any of the following events \nshall constitute an \"EVENT OF DEFAULT\" under this Agreement:\n\n          (a)  FAILURE TO PAY.  The Borrower fails to pay when due, or any \nAcceptable Subsidiary fails to pay within one Business Day after the date \nwhen due, any installment of principal, or either the Borrower or any \nAcceptable Subsidiary fails to pay within three Business Days after the date \nwhen due any interest, fee or any other sum due under this Agreement or any \nother Credit Document in accordance with the terms hereof or thereof.\n\n          (b)  BREACH OF REPRESENTATION OR WARRANTY.  Any representation or \nwarranty herein or in any other Credit Document proves to have been false or \nmisleading in any material respect when made.\n\n          (c)  SPECIFIC DEFAULTS.  The Borrower fails to perform or observe \nany term, covenant or agreement contained in Section 6.01, 6.02 or 6.03 or \nArticle VII.\n\n          (d)  OTHER DEFAULTS.  The Borrower or any Acceptable Subsidiary \nfails to perform or observe any other term or covenant contained in this \nAgreement or any Credit Document, and such default shall continue unremedied \nfor a period of 30 days after the earlier of (i) the date upon which the \nchief executive or chief financial officer of the Borrower knew or should \nhave known of such failure or (ii) the date upon which written notice thereof \nis given to the Borrower by the Bank.\n\n          (e)  JUDGMENTS.  (i) One or more non-interlocutory judgments or \narbitration awards are entered against the Borrower or any of its \nSubsidiaries and the same shall remain unsatisfied, unvacated and unstayed \nfor a period of 30 days after the entry thereof, or (ii) the Borrower or any \nof its Subsidiaries enters into any settlement agreement with respect to any \nlitigation or arbitration, and the aggregate amount of such judgments, \narbitration awards and settlements which are not covered by third-party \ninsurance exceeds $2,000,000.\n\n          (f)  FAILURE TO PAY DEBTS; VOLUNTARY BANKRUPTCY.  The Borrower or \nany Subsidiary (i) fails to pay the Borrower's or such Subsidiary's debts \ngenerally as they come due, or (ii) files any petition, proceeding, case, or \naction for relief \n\n\n                                      29\n\n\n\n\nunder any bankruptcy, reorganization, insolvency, or moratorium law, or any \nother law or laws for the relief of, or relating to, debtors.\n\n          (g)  INVOLUNTARY BANKRUPTCY.  An involuntary petition is filed \nunder any bankruptcy or similar statute against the Borrower or any \nSubsidiary, or a receiver, trustee, liquidator, assignee, custodian, \nsequestrator, or other similar official is appointed to take possession of \nthe properties of the Borrower or any Subsidiary and such petition or \nappointment is not set aside or withdrawn within 60 days or continues in \neffect for 60 days or more from the date of said filing or appointment.\n\n          (h)  DEFAULT OF OTHER FINANCIAL OBLIGATIONS.  (i) Any default \noccurs under any other agreement involving the borrowing of money or the \nextension of credit having an aggregate principal amount (including undrawn \ncommitted or available amounts and including amounts owing to all creditors \nunder any combined or syndicated credit arrangement) of more than $1,000,000 \nto which the Borrower or any Subsidiary may be a party as borrower, guarantor,\nor installment purchaser, if such default consists of the failure to pay any \nobligation when due and such failure continues after the applicable grace or \nnotice period, if any, specified in the relevant document or if such default \ngives to the holder of the obligation concerned the right to accelerate the \nobligation or (ii) there occurs under any Swap Contract an Early Termination \nDate resulting from (1) any event of default under such Swap Contract as to \nwhich the Borrower or any Subsidiary is the Defaulting Party or (2) any \nTermination Event as to which the Borrower or any Subsidiary is an Affected \nParty, and, in either event, the Swap Termination Value owed by the Borrower \nor such Subsidiary as a result thereof is greater than $1,000,000 (for \npurposes of this clause (ii), the terms \"Early Termination Date\", \"Defaulting \nParty\", \"Termination Event\", and \"Affected Party\" shall have the meanings \nassigned to them in the relevant Swap Contract, it being understood that such \ndefinitions contemplate Swap Contracts documented on International Swaps and \nDerivatives Association (\"ISDA\") standard forms; if such Swap Contract is not \ndocumented on an ISDA standard form, such terms shall be given similar or \nanalogous meanings as used in such non-ISDA standard agreements).\n\n          (i)  DEFAULT OF OTHER BANK OBLIGATIONS.  Any default occurs under \nany other obligation of the Borrower or any Subsidiary to the Bank or to any \naffiliate of the Bank and such default continues after the applicable grace \nor notice period.\n\n          (j)  MATERIAL ADVERSE EFFECT.  There occurs a Material Adverse \nEffect.\n\n          (k)  ERISA.  (i) An ERISA Event shall occur with respect to a \nPension Plan which has resulted or could reasonably be expected to result in \nliability of the Borrower under Title \n\n\n                                      30\n\n\n\n\nIV of ERISA to the Pension Plan or PBGC in an aggregate amount in excess of \n$500,000; (ii) the commencement or increase of contributions to, or the \nadoption of or the amendment of a Pension Plan by the Borrower which has \nresulted or could reasonably be expected to result in an increase in Unfunded \nPension Liability among all Pension Plans in an aggregate amount in excess of \n$500,000; or (iii) any of the representations and warranties contained in \nSection 5.12 shall cease to be true and correct which, individually or in \ncombination, has resulted or could reasonably be expected to result in a \nMaterial Adverse Effect.\n\n          (l)  CHANGE OF CONTROL.  (i) any Person or two or more Persons \nacting in concert shall acquire beneficial ownership, directly or indirectly, \nof securities of the Borrower (or other securities convertible into such \nsecurities) representing 40% or more of the combined voting power of all \nsecurities of the Borrower entitled to vote in the election of directors; or \n(ii) during any period of up to 12 consecutive months, commencing after the \nClosing Date, individuals who at the beginning of such 12-month period were \ndirectors of the Borrower shall cease for any reason to constitute a majority \nof the Board of Directors of the Borrower unless the persons replacing such \nindividuals were nominated by the Board of Directors of the Borrower; or \n(iii) any Person or two or more Persons acting in concert acquiring by \ncontract or otherwise, or entering into a contract or arrangement which upon \nconsummation will result in its or their acquisition of, or control over, \nsecurities of the Borrower (or other securities convertible into such \nsecurities) representing 40% or more of the combined voting power of all \nsecurities of the Borrower entitled to vote in the election of directors.\n\n    8.02  REMEDIES.  If any Event of Default occurs,\n\n         (a) any indebtedness of the Borrower or of any Acceptable Subsidiary \nunder any of the Credit Documents, any term thereof to the contrary \nnotwithstanding, shall at the Bank's option (but automatically upon the \noccurrence of an Event of Default described in subsection 8.01(f)(ii) or \nsubsection 8.01(g)) and without notice become immediately due and payable \nwithout presentment, demand, protest, or notice of dishonor, or any other \nnotice, all of which are hereby expressly waived by the Borrower to the full \nextent permitted by law, and the Bank may declare an amount equal to the \nmaximum aggregate amount that is or at any time thereafter may become \navailable for drawing under any then-outstanding letters of credit, (whether \nor not any beneficiary shall have presented, or be entitled at such time to \npresent, the drafts or other documents required to draw under such letters of \ncredit) to be immediately due and payable;\n\n         (b) the obligation, if any, of the Bank (including through any \nOffshore Credit Provider) to make further loans or \n\n\n                                      31\n\n\n\n\nextensions of credit hereunder shall immediately cease and terminate, and\n\n          (c)  the Bank and each Offshore Credit Provider shall have all \nrights, powers, and remedies available under each of the Credit Documents, or \naccorded by law, including the right to resort to any or all security for any \ncredit accommodation described herein, and to exercise any or all of the \nrights of a beneficiary or secured party pursuant to applicable law.\n\nAll rights, powers, and remedies of the Bank and each Offshore Credit Provider\nmay be exercised at any time by the Bank or such Offshore Credit Provider and \nfrom time to time after the occurrence of an Event of Default.  All rights, \npowers, and remedies of the Bank and any Offshore Credit Provider in connection\nwith each of the Credit Documents are cumulative and not exclusive and shall be\nin addition to any other rights, powers, or remedies provided by law or equity.\n\n\n                                 ARTICLE IX\n\n                                MISCELLANEOUS\n\n    9.01  SUCCESSORS AND ASSIGNS.  This Agreement shall bind and inure to the \nbenefit of the parties hereto and their respective successors and assigns; \nprovided, however, that the Borrower shall not assign this Agreement or any \nother Credit Document or any of the rights, duties or obligations of the \nBorrower hereunder without the prior written consent of the Bank.\n\n    9.02  CONSENTS AND WAIVERS.  No failure to exercise and no delay in \nexercising, on the part of the Bank or any Offshore Credit Provider, any \nright, remedy, power, or privilege hereunder, shall operate as a waiver \nthereof; nor shall any single or partial exercise of any right, remedy, \npower, or privilege hereunder preclude any other or further exercise thereof \nor the exercise of any other right, remedy, power, or privilege.  No consent \nor waiver under this Agreement shall be effective unless in writing.  No \nwaiver of any breach or default shall be deemed a waiver of any breach or \ndefault thereafter occurring.\n\n    9.03  GOVERNING LAW.  This Agreement shall be governed by and construed \nunder the laws of the State of California.\n\n    9.04  COSTS AND ATTORNEYS' FEES.  The Borrower shall, whether or not the \ntransactions contemplated hereby shall be consummated, pay or reimburse the \nBank on demand for all reasonable costs and expenses incurred by the Bank in \nconnection with the development, preparation, delivery, administration, and \nexecution of, and any amendment, supplement, waiver or modification to, this \nAgreement and any other Credit Document and the consummation of the \ntransactions contemplated hereby and \n\n\n                                      32\n\n\n\n\nthereby, including reasonable attorney fees and disbursements and the \nallocated cost of internal counsel and disbursements, incurred by the Bank \nwith respect thereto; and in connection with the enforcement, attempted \nenforcement or preservation of any rights or remedies hereunder or under any \nCredit Document, including any \"workout\" or restructuring under this \nAgreement, including attorney fees and disbursements and the allocated cost \nof internal counsel and disbursements.  The agreements and obligations of the \nBorrower under this Section shall survive the expiration or termination of \nthe commitment to extend credit hereunder and the payment of all other \nobligations of the Borrower and the Acceptable Subsidiaries hereunder.\n\n    9.05  INTEGRATION; AMENDMENT.  This Agreement, together with the other \nCredit Documents, embodies the entire agreement and understanding between the \nBorrower and the Bank.  This Agreement may be amended or modified only in \nwriting, signed by the Borrower and the Bank.\n\n    9.06  CONFIDENTIALITY.  The Bank agrees to take normal and reasonable \nprecautions and to exercise due care to maintain the confidentiality of all \ninformation identified as \"confidential\" or \"secret\" by the Borrower and \nprovided to it by the Borrower or any of its Subsidiaries under this \nAgreement or any other Credit Document, and neither it nor any of its \nAffiliates shall use any such information other than in connection with or in \nenforcement of this Agreement and the other Credit Documents or in connection \nwith other business now or hereafter existing or contemplated with the \nBorrower or any Subsidiary; except to the extent such information (i) was or \nbecomes generally available to the public other than as a result of \ndisclosure by the Bank, or (ii) was or becomes available on a  \nnon-confidential basis from a source other than the Borrower, provided that \nsuch source is not bound by a confidentiality agreement with the Borrower \nknown to the Bank; PROVIDED, HOWEVER, that the Bank may disclose such \ninformation (A) at the request or pursuant to any requirement of any \ngovernmental authority to which the Bank is subject or in connection with an \nexamination of such Bank by any such authority; (B) pursuant to subpoena or \nother court process; (C) when required to do so in accordance with the \nprovisions of any applicable requirement of law; (D) to the extent reasonably \nrequired in connection with any litigation or proceeding to which the Bank \nmay be party; (E) to the extent reasonably required in connection with the \nexercise of any remedy hereunder or under any other Credit Document; (F) to \nthe Bank's independent auditors and other professional advisors; (G) to any \nparticipant or assignee, actual or potential, provided that such person \nagrees in writing to keep such information confidential to the same extent \nrequired of the Bank hereunder; (H) as to the Bank or its Affiliate, as \nexpressly permitted under the terms of any other document or agreement \nregarding confidentiality to which the Borrower or any Subsidiary is party or \nis deemed party with the Bank or such Affiliate; and (I) to its Affiliates \nwhich have a need to know such information in connection with the \n\n\n                                      33\n\n\n\n\nevaluation or administration of this Agreement or any other Credit Document \nand which shall keep such information confidential to the same extent \nrequired of the Bank hereunder.\n\n    9.07  PARTICIPATIONS.  The Bank may at any time sell, assign, grant \nparticipations in, or otherwise transfer to any other Person (a \"PARTICIPANT\")\nall or part of the obligations of the Borrower and any Acceptable Subsidiary \nunder this Agreement and any other Credit Document.  The Borrower authorizes \nthe Bank and each Participant, upon the occurrence of an Event of Default, to \nproceed directly by right of setoff, banker's lien, or otherwise, against any \nassets of the Borrower and any Acceptable Subsidiary which may be in the \nhands of the Bank or such Participant, respectively.  The Borrower authorizes \nthe Bank to disclose to any prospective Participant and any Participant any \nand all information in the Bank's possession concerning the Borrower and its \nSubsidiaries, this Agreement or any other Credit Document; provided, however, \nthat any such prospective Participant or Participant shall agree to keep any \nsuch information confidential.\n\n    9.08  GENERAL INDEMNIFICATION.  The Borrower shall pay and indemnify the \nBank, the Offshore Credit Providers, the Bank's parent company, and each of \ntheir respective officers, directors, employees, counsel, agents and \nattorneys-in-fact (each, an \"INDEMNIFIED PERSON\") harmless from and against \nany and all liabilities, obligations, losses, damages, penalties, actions, \njudgments, suits, costs, charges, expenses, or disbursements (including \nattorneys' fees and disbursements and the allocated costs of internal \ncounsel) of any kind or nature whatsoever with respect to the execution, \ndelivery, enforcement, performance, and administration of this Agreement and \nany other Credit Documents, or the transactions contemplated hereby and \nthereby, and with respect to any investigation, litigation, or proceeding \nrelated to this Agreement, any violation of any Environmental Law by the \nBorrower or its Subsidiaries, any use, generation, manufacture, production, \nstorage, release, threatened release, discharge, disposal or presence \n(whether actual or alleged) of a Hazardous Substance on, under or about the \nproperty or operations of or property leased to the Borrower or any of its \nSubsidiaries, any transportation from or other off-site management of any \nHazardous Substance generated or used by the Borrower or any of its \nSubsidiaries, or the loans and other extensions of credit hereunder or the \nuse of the proceeds thereof, whether or not any Indemnified Person is a party \nthereto (all the foregoing, collectively, the \"INDEMNIFIED LIABILITIES\"); \nPROVIDED, that the Borrower shall have no obligation hereunder to any \nIndemnified Person with respect to Indemnified Liabilities arising from the \ngross negligence or willful misconduct of such Indemnified Person.  The \nagreements and obligations of the Borrower under this Section shall survive \nthe expiration or termination of the commitment to extend credit hereunder \nand the payment of all other obligations of the Borrower and the Acceptable \nSubsidiaries hereunder.\n\n\n                                      34\n\n\n\n\n    9.09  ARBITRATION; REFERENCE PROCEEDING.  (a)  Any controversy or claim \nbetween or among the parties arising out of or relating to this Agreement or \nany other Credit Document or other agreements or instruments relating hereto \nor delivered in connection herewith and any claim based on or arising from an \nalleged tort, shall at the request of any party be determined by arbitration. \nThe arbitration shall be conducted in accordance with the United States \nArbitration Act (Title 9, U.S. Code), notwithstanding any choice of law \nprovision in this Agreement, and under the Commercial Rules of the American \nArbitration Association (\"AAA\").  The arbitration shall be conducted within \nthe following California county or counties:  San Francisco.  The \narbitrator(s) shall give effect to statutes of limitation in determining any \nclaim.  Any controversy concerning whether an issue is arbitrable shall be \ndetermined by the arbitrator(s).  Judgment upon the arbitration award may be \nentered in any court having jurisdiction.  The institution and maintenance of \nan action for judicial relief or pursuit of a provisional or ancillary remedy \nshall not constitute a waiver of the right of any party, including the \nplaintiff, to submit the controversy or claim to arbitration if any other \nparty contests such action for judicial relief.\n\n         (b)  Notwithstanding the provisions of subsection (a) of this \nSection, no controversy or claim shall be submitted to arbitration without \nthe consent of all parties if, at the time of the proposed submission, such \ncontroversy or claim arises from or relates to an obligation to the Bank \nwhich is secured by real property collateral located in California.  If all \nparties do not consent to submission of such a controversy or claim to \narbitration, the controversy or claim shall be determined as provided in \nsubsection (c) of this Section.\n\n         (c)  A controversy or claim which is not submitted to arbitration as \nprovided and limited in subsections (a) and (b) of this Section shall, at the \nrequest of any party, be determined by a reference in accordance with \nCalifornia Code of Civil Procedure Sections 638 ET SEQ.  If such an election \nis made, the parties shall designate to the court a referee or referees \nselected under the auspices of the AAA in the same manner as arbitrators are \nselected in AAA-sponsored proceedings.  The presiding referee of the panel, \nor the referee if there is a single referee, shall be an active attorney or \nretired judge.  Judgment upon the award rendered by such referee or referees \nshall be entered in the court in which such proceeding was commenced in \naccordance with California Code of Civil Procedure Sections 644 and 645.\n\n         (d)  No provision of this paragraph shall limit the right of any \nparty to this Agreement to exercise self-help remedies such as setoff, to \nforeclose against or sell any real or personal property collateral or \nsecurity, or to obtain provisional or ancillary remedies from a court of \ncompetent jurisdiction before, after, or during the pendency of any \n\n\n                                      35\n\n\n\n\narbitration or other proceeding.  The exercise of a remedy does not waive the \nright of either party to resort to arbitration or reference.  At the Bank's \noption, foreclosure under a deed of trust or mortgage may be accomplished \neither by exercise of power of sale under the deed of trust or mortgage or by \njudicial foreclosure.\n\n    9.10  NOTICES.  (a)  All notices, requests and other communications \nprovided for hereunder shall be in writing and mailed or delivered to a party \nat its address specified on the signature pages hereof, or to such other \naddress as shall be designated by such party in a written notice to the other \nparties.\n\n         (b)  All such notices and communications shall, when transmitted by \novernight delivery, be effective when delivered for overnight delivery, or if \npersonally delivered, upon such personal delivery, except that notices \npursuant to Article II shall not be effective until actually received by the \nBank.\n\n         (c)  The Borrower acknowledges and agrees that any agreement of the \nBank pursuant to Article II to receive notices by telephone or facsimile is \nsolely for the convenience and at the request of the Borrower.  Telephone \nrequests may be made by any individual identified in writing to the Bank on a \nform acceptable to the Bank as being authorized to make such requests.  The \nBank shall be entitled to rely upon any written or telephone request from \npersons it reasonably believes to be authorized by the Borrower to make such \nrequests without making independent inquiry.  The Borrower assumes the full \nrisk of, and the Bank shall not be responsible for, any delays or errors in \ntransmission, and the obligation of the Borrower to repay the loans and other \nextensions of credit hereunder shall not be affected in any way or to any \nextent by any failure by the Bank to receive written confirmation of any \ntelephonic or facsimile notice or the receipt by the Bank of a confirmation \nwhich is at variance with the terms understood by the Bank to be contained in \nthe telephonic or facsimile notice.\n\n    9.11  HEADINGS; INTERPRETATION.  Article, section, and paragraph headings \nare for reference only and shall not affect the interpretation or meaning of \nany provisions of this Agreement.  The meaning of defined terms shall be \nequally applicable to the singular and plural forms of the defined terms.  \nThe words \"hereof\", \"herein\", \"hereunder\" and words of similar import when \nused in this Agreement shall refer to this Agreement as a whole and not to \nany particular provision of this Agreement; and Article, subsection, section, \nschedule and exhibit references are to this Agreement unless otherwise \nspecified.  The term \"including\" is not limiting and means \"including without \nlimitation.\" In the computation of periods of time from a specified date to a \nlater specified date, the word \"from\" means \"from and including\"; the words \n\"to\" and \n\n\n                                      36\n\n\n\n\n\"until\" each mean \"to but excluding\", and the word \"through\" means \"to and \nincluding.\"\n\n    9.12  SEVERABILITY.  The illegality or unenforceability of any provision \nof this Agreement or any instrument or agreement required hereunder shall not \nin any way affect or impair the legality or enforceability of the remaining \nprovisions of this Agreement or any instrument or agreement required \nhereunder.\n\n    9.13  COUNTERPARTS.  This Agreement may be executed in as many \ncounterparts as may be deemed necessary or convenient, and by the different \nparties hereto on separate counterparts each of which, when so executed, \nshall be deemed an original but all such counterparts shall constitute but \none and the same agreement.\n\n    9.14  WAIVER OF JURY TRIAL.  IF A CONTROVERSY OR CLAIM IS NOT SUBMITTED \nTO ARBITRATION AS PROVIDED AND LIMITED IN SUBSECTIONS (a) AND (b) OF SECTION \n9.09 OR IS NOT DETERMINED BY A REFERENCE AS PROVIDED IN SUBSECTION (c) OF \nSUBSECTION 9.09, THEN THE BORROWER AND THE BANK WAIVE THEIR RESPECTIVE RIGHTS \nTO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT \nOF OR RELATED TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS, OR THE \nTRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR \nOTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER \nPARTY OR ANY PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO CONTRACT \nCLAIMS, TORT CLAIMS, OR OTHERWISE.  THE BORROWER AND THE BANK EACH AGREE THAT \nANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A \nJURY.  WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR \nRESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS \nTO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN \nPART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE \nOTHER CREDIT DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.  THIS WAIVER SHALL \nAPPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO \nTHIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.\n\n\n\n\n\n\n\n\n\n\n                                      37\n\n\n\n\n    IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of \nthe day and year first above written.\n\n                                  DIGITAL MICROWAVE CORPORATION\n\n\n                                  By: \/s\/ CHARLES D. KISSNER\n                                     ----------------------------------------\n\n                                  Typed Name: Charles D. Kissner\n                                             --------------------------------\n\n                                  Title: Chairman of the Board, President\n                                         and Chief Executive Officer\n                                        -------------------------------------\n\n\n                                  By: \/s\/ CARL A. THOMSEN\n                                     ----------------------------------------\n\n                                  Typed Name: Carl A. Thomsen\n                                             --------------------------------\n\n                                  Title: Vice President, Chief Financial\n                                         Officer and Secretary\n                                        -------------------------------------\n\n\n                                  Address where notices to\n                                  Borrower are to be sent:\n\n                                      170 Rose Orchard Way\n                                  -------------------------------------------\n\n                                      San Jose, CA 95134\n                                  -------------------------------------------\n\n                                  BANK OF AMERICA NATIONAL TRUST\n                                  AND SAVINGS ASSOCIATION\n\n\n                                  By: \/s\/ DEBRA C. STAIGER\n                                     ----------------------------------------\n\n                                  Typed Name: Debra C. Staiger\n                                             --------------------------------\n\n                                  Title:      Vice President\n                                        -------------------------------------\n\n\n                                  Address where notices to\n                                  Bank are to be sent:\n\n                                  530 Lytton Avenue, 2nd Floor\n                                  -------------------------------------------\n\n                                  Palo Alto, CA  94301\n                                  -------------------------------------------\n\n\n\n                                      38\n\n\n\n\n\n\n                                Schedule 7.01\n\n                            EXISTING INDEBTEDNESS\n\n                             As of May 31, 1997\n\n\n\n     Amount                             Description\n     ------                             -----------\n   $2,016,443     Coast Business Credit $25,000,000 facility (terminated and \n                  paid in full as of June 30, 1997)\n\n    1,226,518     Balance of lease obligations under capital equipment and \n   ----------     auto leases\n\n   $3,242,961     Total Indebtedness as of May 31, 1997\n   ----------\n   ----------\n\n\n\n\n\n\n\n\n\n                                      39\n\n\n\n\n                                Schedule 7.02\n\n                               EXISTING LIENS\n\n                             As of May 31, 1997\n\n\n     Amount                             Description\n     ------                             -----------\n\n    $2,016,443    Amount of outstanding indebtedness under Coast Business \n                  Credit $25,000,000 facility terminated and paid in full as \n                  of June 30, 1997, security interest filed on all receivables,\n                  inventory and supplies related to sales of its goods and\n                  services\n\n     1,226,518    Amount of outstanding liability under capital lease \n    ----------    obligations for which liens are in effect on the leased \n                  asset\n\n    $3,242,961    Total Amount of Liabilities Subject to Liens\n    ----------\n    ----------\n\n\n\n\n\n\n\n\n                                      40\n\n\n\n\n\n                                  Exhibit A\n                                      \n                        DIGITAL MICROWAVE CORPORATION\n                           COMPLIANCE CERTIFICATE\n                                      \n                                      \n                                                     Date: _____________, 199_\n\n\n    Pursuant to that Credit Agreement dated as of June 30, 1997 (as amended, \nmodified or supplemented from time to time, the \"Credit Agreement\"; \ncapitalized terms not otherwise defined herein being used herein as defined \nin the Credit Agreement) between Digital Microwave Corporation (the \n\"Borrower\") and Bank of America National Trust and Savings Association (the \n\"Bank\"), the undersigned responsible officer, certifies that he\/she is the \n__________________ of the Borrower, and that, as such, he\/she is authorized \nto execute and deliver this Certificate, and that:\n\n[Use this paragraph if this Certificate is delivered in connection with the \nfinancial statements required by subsection 6.02(a) of the Credit Agreement.]\n\n    1.  Attached as Schedule 1 hereto is a true and correct copy of the \nBorrower's audited consolidated balance sheet as at the end of the fiscal \nyear ended ______________, 199_ and the related consolidated statements of \nincome, retained earnings and cash flow for such fiscal year, setting forth \nin each case in comparative form the figures for the previous fiscal year, \nand accompanied by the unqualified opinion of _____________________ \n[nationally-recognized independent public accounting firm].\n\n                                     or\n\n[Use this paragraph if this Certificate is delivered in connection with the \nfinancial statements required by subsection 6.02(b) of the Credit Agreement.]\n\n    1.  Attached as Schedule 1 hereto is a true and correct copy of the \nunaudited consolidated balance sheet of the Borrower for the fiscal quarter \nended _________________, 199_ and the related consolidated statements of \nincome, retained earnings and cash flow for the period commencing on the \nfirst day and ending on the last day of such quarter and for the portion of \nthe fiscal year ending on the last day of such quarter.\n\n    2.  The attached financial statements are complete and correct and fairly \npresent, in accordance with GAAP, the financial position and results of \noperations of the Borrower and the Borrower's consolidated Subsidiaries.\n\n    3.  The undersigned has reviewed and is familiar with the terms of the \nCredit Agreement and has made, or has caused to be made under his\/her \nsupervision, a detailed review of the \n\n                                     A-1\n\n\n\ntransactions and conditions of the Borrower during the accounting period \ncovered by the attached financial statements.\n\n    4.  To the best of the undersigned's knowledge, the Borrower, during such \nperiod, has observed, performed or satisfied all of its covenants and other \nagreements, and satisfied every condition in the Credit Agreement to be \nobserved, performed or satisfied by the Borrower, and the undersigned has no \nknowledge of any Default or Event of Default (both as defined in the Credit \nAgreement).\n\n    5.  The following financial covenant analyses and information set forth \non Schedule 2 attached hereto are true and accurate on and as of the date of \nthis Certificate.  All amounts and ratios in Schedule 2 refer to the \nfinancial statements attached as Schedule 1 hereto and are determined in \naccordance with the specifications set forth in the Credit Agreement.\n\n    IN WITNESS WHEREOF, the undersigned has executed this  Certificate as of \n______________________, 199_.\n\n                                    DIGITAL MICROWAVE CORPORATION\n\n\n                                    By:                            \n                                       ----------------------------\n\n                                    Name:                          \n                                         --------------------------\n\n                                    Title:                         \n                                          -------------------------\n\n                                     A-2\n\n\n\n                                                  Date: ______________, 199__\n                                                  For the fiscal quarter\/year\n                                                  ended ______________, 199__\n\n                                       \n                                  SCHEDULE 2\n                        to the Compliance Certificate\n                                 ($ in 000's)(1)\n\n                                           ACTUAL           REQUIRED\/PERMITTED\n                                           ------           ------------------\n1. SECTION 7.13 QUICK RATIO.\n\n   The ratio of:\n\n   A. the sum of:\n\n      (i)   cash\n                  PLUS                     -------\n                                           -\n      (ii)  short-term cash investments\n                  PLUS                     -------\n                                           -\n      (iii) marketable securities not      \n            classified as long-term\n            investments                    \n                  PLUS                     -------\n                                           -\n      (iv)  current accounts receivable\n                                           -------\n                                           -\n\n\n            (i)+(ii)+(iii)+(iv) =          -------\n                                           -\n   B. Current Liabilities(2)\n                                           -------\n                                           -\n       A\n      ---\n       B                        =\n                                          --------  Not less than 1.35 to 1.00.\n                                          --------\n\n- -----------\n(1) Determined on a consolidated basis, in accordance with GAAP.\n\n(2) Including, without duplication, the dollar Equivalent Amount of all \noutstanding Advances and the L\/C Outstanding Amount.\n\n\n                                     A-3\n\n\n\n                                        ACTUAL           REQUIRED\/PERMITTED\n                                        ------           ------------------\n2. SECTION 7.14 MINIMUM TANGIBLE \n   NET WORTH.\n                                                                   \n   Tangible Net Worth:                          Not to be less than the sum of:\n\n   (i)   Total assets                           A. 90% of consolidated Tangible\n                                       ------      Net Worth as of \n                                                   12\/31\/96\n            LESS                                                    -----------\n                                                              PLUS\n  (ii)   goodwill, patents, trademarks,         \n         trade names, organization              B. 100% of the net proceeds     \n         expense, treasury stock,                  received from the issuance   \n         unamortized debt discount and             of equity after 12\/31\/96     \n         expense, deferred charges and                                          \n         other like intangibles and                                 ----------- \n         monies due from Affiliates other                     \n         than Subsidiaries of the Borrower,                   LESS\n         officers, directors, or \n         shareholders                  ------   C. up to $20,000,000 in \n                                                   intangible assets acquired \n                    LESS                           after 12\/31\/96  \n                                                                    ---------- \n (iii)   reserves applicable thereto   ------ \n\n                    LESS                     \n \n  (iv)   all liabilities (including \n         accrued and deferred income\n         taxes)                        -------\n\n         (i)-(ii)-(iii)-(iv)        =  -------      A + B - C    =  -----------\n                                       -------                      -----------\n\n                                      A-4\n\n\n\n                                        ACTUAL           REQUIRED\/PERMITTED\n                                        ------           ------------------\n\n3. SECTION 7.15 TOTAL LIABILITIES\n   TO TANGIBLE NET WORTH.\n\n   The ratio of:\n\n   A. Total Liabilities(3)              \n                                        ------\n   B. Tangible Net Worth (from 2.       \n      above)                            ------\n     \n        A              \n       ---\n        B                                         Not greater than 0.75 to 1.00.\n                                        ------\n                                        ------\n\n4. SECTION 7.16(a) \n   LOSSES IN TWO CONSECUTIVE \n   QUARTERS.              \n\n   A. (i)  Operating loss for fiscal \n           quarter just ended           -------   Not to exceed 0 if (ii) shows\n                                        -------   a loss.\n     (ii)  Operating loss for the \n           fiscal quarter immediately \n           preceding the fiscal quarter \n           just ended                   --------\n                                        --------\n\n   B. (i)  Net loss for fiscal quarter \n           just ended                   --------  Not to exceed 0 if (ii) shows \n                                        -------   a loss.\n      (ii) Net loss for the fiscal \n           quarter immediately preceding \n           the fiscal quarter just ended -------\n                                         ------- \n\n5. SECTION 7.16(b) LOSSES IN ONE QUARTER.           \n   Operating loss for fiscal quarter \n   just ended                            -------  Not to exceed 5% of Tangible \n                                         -------  Net Worth as of immediately \n                                                  preceding fiscal quarter:\n                                                    Tangible Net Worth \n                                                    from last quarter's \n                                                    Compliance Certif-\n                                                    icate Item No. 2\n                                                                     ----------\n                                                                     x     5%\n\n                                                                     =         \n                                                                     ----------\n                                                                     ----------\n    Net loss for fiscal quarter \n    just ended                           -------  Not to exceed 5% of Tangible\n                                         -------  Net Worth as of immediately\n                                                  preceding fiscal quarter \n                                                  as computed above:            \n                                                                     ----------\n                                                                     ----------\n- ----------\n\n(3) Including, without duplication, the dollar Equivalent Amount of all \n    outstanding Advances and the L\/C Outstanding Amount.\n\n                                      A-5\n\n\n\n                                  EXHIBIT B\n\n                             NOTICE OF BORROWING\n\n\n                                                 Date: _________________, 199_\n\n\nTo:  Bank of America National Trust and Savings Association, (the \"BANK\")\n\nRe:  Credit Agreement dated as of June 30, 1997 (as extended, renewed, amended\n     or restated from time to time, the \"CREDIT AGREEMENT\") between Digital \n     Microwave Corporation and Bank of America National Trust and Savings \n     Association\n\n\nLadies and Gentlemen:\n\n     The undersigned, ___________________________ (the \"BORROWER\"), refers to \nthe Credit Agreement and hereby gives you notice irrevocably, pursuant to \nSection [2.02\/2.06] of the Credit Agreement, of the specified Advance requested\nbelow.  The terms defined in the Credit Agreement which are used herein have \nthe meanings therein defined.\n\n          1.   The Business Day of the proposed Advance is __________________,\n     19___.\n\n          2.   The aggregate amount of the proposed Advance is \n     [$_____________________.] [or specify the amount and currency of any \n     Local Currency Advances].\n\n          3.   A Dollar Advance is to be a [Reference Rate] [Offshore Rate]\n     Advance.\n\n          4.   The duration of the Interest Period for the [Offshore Rate \n     Advance or Local Currency Advance] shall be [_____ days] [_______ months].\n\n     The undersigned hereby certifies that the following statements are true \non the date hereof, and will be true on the date of the proposed Advance, \nbefore and after giving effect thereto and to the application of the proceeds \ntherefrom:\n\n          (a)  the representations and warranties of the Borrower contained\n     in Article V of the Credit Agreement are true and correct in all material\n     respects as though made on and as of such date (except to the extent \n     such representations and warranties relate to an earlier date, in which\n     case they are true and correct in all material respects as of such date);\n\n          (b)  no Default or Event of Default has occurred and is continuing,\n     or would result from such proposed Advance; and\n\n\n                                    B-1\n\n\n\n\n          (c)  The proposed Advance will not cause the aggregate principal \n     amount of all outstanding Advances PLUS the aggregate amount of all L\/C\n     Outstanding Amounts to exceed the Credit Limit.\n\n\n                                       Digital Microwave Corporation\n\n\n                                       By:\n                                          -----------------------------------\n                                       Title:\n                                             --------------------------------\n\n\n                                       [By:\n                                           ----------------------------------\n                                       Title:                               ]\n                                             --------------------------------\n\n\n\n\n\n\n\n\n\n\n                                    B-2\n\n\n\n\n                                 EXHIBIT C\n\n                   NOTICE OF CONVERSION\/CONTINUATION\n\n\n\n                                                 Date: _________________, 199_\n\n\nTo:  Bank of America National Trust and Savings Association, (the \"BANK\")\n\nRe:  Credit Agreement dated as of June 30, 1997 (as extended, renewed, amended\n     or restated from time to time, the \"CREDIT AGREEMENT\") between Digital \n     Microwave Corporation and Bank of America National Trust and Savings \n     Association\n\nLadies and Gentlemen:\n\n    The undersigned, ___________________________  (the \"BORROWER\"), refers to \nthe Credit Agreement and hereby gives you notice irrevocably, pursuant to \nSection 2.03 of the Credit Agreement, of the [conversion] [continuation] of \nthe Advances specified herein.  The terms defined in the Credit Agreement \nwhich are used herein have the meanings therein defined.\n\n         1.   The conversion\/continuation Date is _____________,\n     19____.\n\n         2.   The aggregate amount of the Advances to be [converted]\n     [continued] is $_____________.\n\n         3.   The Advances are to be [converted into] [continued as] \n     [Reference Rate] [Offshore Rate] Advances.\n\n         4.   [If applicable:]  The duration of the Offshore Rate Interest \n     Period for the Advances included in the [conversion] [continuation] \n     shall be [_____ days] [_____ months].\n\n     The undersigned hereby certifies that the following statements are true \non the date hereof, and will be true on the proposed conversion\/continuation \nDate, before and after giving effect thereto and to the application of the \nproceeds therefrom:\n\n          (a)  the representations and warranties of the Borrower contained \n     in Article V of the Credit Agreement are true and correct in all material\n     respects as though made on and as of such date (except to the extent \n     such representations and warranties relate to an earlier date, in which\n     case they are true and correct in all material respects as of such date);\n\n\n                                    C-1\n\n\n\n\n          (b)  no Default or Event of Default has occurred and is continuing,\n     or would result from such proposed [conversion] [continuation][; and\n\n          (c)  the proposed [conversion][continuation] will not cause the \n     aggregate principal amount of all outstanding Advances PLUS the aggregate\n     amount of all L\/C Outstanding Amounts to exceed the Credit Limit.\n\n\n\n                                       Digital Microwave Corporation\n\n\n                                       By:\n                                          -----------------------------------\n                                       Title:\n                                             --------------------------------\n\n\n                                       [By:\n                                           ----------------------------------\n                                       Title:                               ]\n                                             --------------------------------\n\n\n\n\n\n\n\n                                    C-2\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,7334],"corporate_contracts_industries":[9415,9516],"corporate_contracts_types":[9561,9560],"class_list":["post-40954","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-dmc-stratex-networks-inc","corporate_contracts_industries-financial__banks","corporate_contracts_industries-telecommunications__equipment","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40954","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40954"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40954"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40954"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40954"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}