\n (h) Default of Other Financial Obligations…………… 18
\n (i) Default under other Credit Documents…………….. 18
\n (j) Default of Other Bank Obligations……………….. 18
\n (k) Material Adverse Effect………………………… 18
\n (l) ERISA………………………………………… 18
\n (m) Change of Control……………………………… 18
\n 8.02 Remedies………………………………………………… 19<\/p>\n ARTICLE IX <\/p>\n
MISCELLANEOUS……………………… 19<\/p>\n
9.01 Successors and Assigns……………………………………. 19
\n 9.02 Consents and Waivers……………………………………… 19
\n 9.03 Governing Law……………………………………………. 19
\n 9.04 Costs and Attorneys’ Fees…………………………………. 19
\n 9.05 Integration; Amendment……………………………………. 20
\n 9.06 Borrower’s Documents……………………………………… 20
\n 9.07 Participations…………………………………………… 20
\n 9.08 General Indemnification…………………………………… 20
\n 9.09 Arbitration; Reference Proceeding………………………….. 20
\n 9.10 Notices…………………………………………………. 21
\n 9.11 Headings; Interpretation………………………………….. 21
\n 9.12 Severability…………………………………………….. 21
\n 9.13 Counterparts…………………………………………….. 22
\n<\/c><\/s><\/caption>\n<\/table>\n
iii
\n 5
\n CREDIT AGREEMENT
\n (MULTICURRENCY-I)<\/p>\n
THIS CREDIT AGREEMENT (MULTICURRENCY) (this “Agreement”) is
\nentered into as of February 29, 1996, between DIONEX CORPORATION (the
\n“Borrower”), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION (the
\n“Bank”).<\/p>\n
In consideration of the mutual covenants and agreements contained
\nherein, the Borrower and the Bank agree as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS AND FINANCIAL REQUIREMENTS.<\/p>\n
1.01 Definitions. The following terms (including plural and singular
\nversions thereof) have the meanings indicated:<\/p>\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.<\/p>\n
“Advance”: an advance hereunder.<\/p>\n
“Availability Period”: the period commencing on the date of this
\nAgreement and ending on the date that is the earlier to occur of (a) December
\n31, 1997, and (b) the date on which the Bank’s commitment to extend credit
\nhereunder terminates.<\/p>\n
“Business Day”: any day other than a Saturday, a Sunday, or any other
\nday on which commercial banks in San Francisco, California, are authorized or
\nrequired by law to close and, if the applicable Business Day relates to any
\nOffshore Rate Advance, means such a day on which dealings are carried on in the
\napplicable offshore interbank market.<\/p>\n
“CD Rate”: for any CD Rate Interest Period, the rate of interest (
\nrounded upward to the next 1\/100th of 1%) determined pursuant to the following
\nformula:<\/p>\n
CD Rate = Certificate of Deposit Rate plus Assessment
\n —————————- Rate
\n 1.00 – Reserve Percentage <\/p>\n
Where:<\/p>\n
“Assessment Rate” means, for any day of such CD Rate
\n Interest Period, the rate determined by the Bank as equal to the
\n annual assessment rate in effect on the first day of such CD
\n Rate Interest Period that is payable to the Federal Deposit
\n Insurance Corporation (“FDIC”) by a member of the Bank Insurance
\n Fund that is classified as adequately capitalized and within
\n supervisory subgroup “A” (or a comparable successor assessment
\n risk classification within the meaning of 12 C.F.R.
\n Section 327.3(d)) for insuring time deposits at offices of such
\n member in the United States, or, in the event that the FDIC
\n shall at any time hereafter cease to assess time deposits based
\n upon such classifications or successor classifications, equal to
\n the maximum annual assessment rate in effect on such day that is
\n payable to the FDIC by commercial banks (whether or not
\n applicable to the Bank) for insuring time deposits at offices of
\n such banks in the United States.<\/p>\n
1
\n 6
\n “Certificate of Deposit Rate” means, for any CD Rate
\n Interest Period, the rate of interest per annum determined by
\n the Bank to be the arithmetic mean (rounded upward to the
\n nearest 1\/100th of 1%) of the rates notified to the Bank as the
\n rates of interest bid by two or more certificate of deposit
\n dealers of recognized standing selected by the Bank for the
\n purchase at face value of dollar certificates of deposit issued
\n by major United States banks, for a maturity comparable to the
\n CD Rate Interest Period and in the approximate amount of the CD
\n Rate Advance to be made, at the time selected by the Bank on the
\n first day of such CD Rate Interest Period.<\/p>\n
“Reserve Percentage” means, for any CD Rate Interest
\n Period the maximum reserve percentage (expressed as a decimal,
\n rounded upward to the nearest 1\/100th of 1%), as determined by
\n the Bank, in effect on the first day of such interest period
\n (including any ordinary, marginal, emergency, supplemental,
\n special and other reserve percentages) prescribed by the FRB for
\n determining the maximum reserves to be maintained by member
\n banks of the Federal Reserve System with deposits exceeding
\n $1,000,000,000 for new non-personal time deposits for a period
\n comparable to the CD Rate Interest Period and in an amount of
\n $100,000 or more.<\/p>\n
“CD Rate Advance”: an Advance that bears interest based on the CD Rate.<\/p>\n
“CD Rate Interest Period”: for each CD Rate Advance, the period
\ncommencing on the date the CD Rate Advance begins to bear interest at a rate
\nbased on the CD Rate and ending 30, 60, 90, or 180 days thereafter, as requested
\nby the Borrower; provided, however, that no such CD Rate Interest Period shall
\nextend beyond the Final Maturity Date.<\/p>\n
“Closing Date”: the date on which all conditions to the initial
\nextension of credit hereunder are satisfied.<\/p>\n
“Code”: the Internal Revenue Code of 1986, as amended, and the rules
\nand regulations promulgated thereunder as from time to time in effect.<\/p>\n
“Credit Documents”: collectively, this Agreement and each other
\nagreement, documents and instrument now or hereafter delivered to the Bank
\n(including any Offshore Credit Provider) in connection with the credits
\nestablished herein and the transactions contemplated hereby.<\/p>\n
“Credit Limit”: the amount $10,000,000 or the Equivalent Amount
\nthereof.<\/p>\n
“Default”: any event or circumstance which, with the giving of notice,
\nthe lapse of time, or both, would (if not cured or otherwise remedied during
\nsuch time) constitute an Event of Default.<\/p>\n
“Dollars”, “dollars” and “$”: each, lawful money of the United States.<\/p>\n
“Dollar Advances”: specified in subsection 2.01(b).<\/p>\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, as now or may at any time
\nhereafter may be in effect.<\/p>\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 equivalent amount in dollars of any amount
\nexpressed in a currency other than dollars as determined by the Bank on such
\ndate on the basis of the Spot Rate for the purchase of dollars with such other
\ncurrency on the relevant date; or (b)<\/p>\n
2
\n 7
\nwhenever this Agreement requires or permits a determination on any date of the
\nequivalent in a currency other than dollars of an amount expressed in dollars,
\nthe equivalent amount in a currency other than dollars of an amount expressed in
\ndollars as determined by the Bank on such date on the basis of the Spot Rate for
\nthe purchase of such other currency with dollars on the relevant date.<\/p>\n
“ERISA”: the Employee Retirement Income Security Act of 1974, as
\namended, and the rules and regulations promulgated thereunder as from time to
\ntime in effect.<\/p>\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.<\/p>\n
“Event of Default”: any event listed in Article VIII of this Agreement.<\/p>\n
“FDIC”: the Federal Deposit Insurance Corporation, or any entity
\nsucceeding to any of its principal functions.<\/p>\n
“Final Maturity Date”: (a) in respect of any Advances, December 31,
\n1997; (b) in respect of any commercial letters of credit, June 30, 1998; and (c)
\nin respect of any standby letters of credit, December 31, 1998.<\/p>\n
“Floating Rate”: specified in subsection 2.02(a).<\/p>\n
“FRB”: the Board of Governors of the Federal Reserve System, or any
\nentity succeeding to any of its principal functions.<\/p>\n
“Hazardous Substance”: any hazardous or toxic substance, material, or
\nwaste, defined, listed, classified, or regulated as such in or under any
\nEnvironmental Laws, including asbestos, petroleum, or petroleum products
\n(including gasoline, crude oil, or any fraction thereof), polychlorinated
\nbiphenyls, and urea-formaldehyde insulation.<\/p>\n
“IRS”: the Internal Revenue Service or any entity succeeding to any of
\nits principal functions under the Code.<\/p>\n
“L\/C Outstanding Amount”: at any time, the undrawn amount at such time
\nof any letter of credit issued hereunder, plus the amount of all drafts or
\ndrawings paid or accepted by the Bank which have not yet been reimbursed to the
\nBank, plus 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.<\/p>\n
“Local Currency”: specified in subsection 2.01(b).<\/p>\n
“Local Currency Advance”: specified in subsection 2.01(b).<\/p>\n
“Material Adverse Effect”: (a) a material adverse change in, or a
\nmaterial adverse effect upon, the operations, business, properties, condition
\n(financial or otherwise) or prospects of the Borrower or the<\/p>\n
3
\n 8
\nBorrower and its Subsidiaries taken as a whole; (b) a material impairment of the
\nability of the Borrower or any Acceptable Subsidiary to perform under any Credit
\nDocument; or (c) a material adverse effect upon the legality, validity, binding
\neffect or enforceability of any Credit Document.<\/p>\n
“Offshore Credit Provider”: a foreign office, foreign branch or foreign
\naffiliate of the Bank, acceptable to the Bank.<\/p>\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:<\/p>\n
Offshore Rate = Offered Rate
\n ————————————
\n 1.00 – Eurodollar Reserve Percentage<\/p>\n
Where:<\/p>\n
“Offered Rate” means the rate of interest at
\n which deposits in the applicable currency in the approximate
\n amount of the Offshore Rate Advance to be made and having a
\n maturity comparable to such Offshore Rate Interest Period would
\n be offered by the Bank’s Grand Cayman Branch, Grand Cayman,
\n British West Indies (or such other office as may be designated
\n for such purpose by the Bank), to major banks in the offshore
\n interbank market upon request of such banks at approximately
\n 8:00 a.m. San Francisco time two Business Days prior to the
\n first day of such Offshore Rate Interest Period.<\/p>\n
“Eurodollar Reserve Percentage” means, for any
\n Offshore Rate Interest Period, the maximum reserve percentage
\n (expressed as a decimal, rounded upward to the next 1\/100th of
\n 1%) in effect on the first day of such Offshore Rate Interest
\n Period (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 Eurocurrency
\n funding (currently referred to as “Eurocurrency liabilities”)
\n having a term comparable to such Offshore Rate Interest Period.<\/p>\n
“Offshore Rate Advance”: an Advance for which interest is based on the
\nOffshore Rate.<\/p>\n
“Offshore Rate Interest Period”: for each Offshore Rate Advance the
\nperiod commencing on the date the Offshore Rate Advance begins to bear interest
\nat a rate based on the Offshore Rate and ending one, two, three, or six months
\nthereafter, as requested by the Borrower; provided, however, that the last day
\nof each Offshore Rate Interest Period shall be determined in accordance with the
\npractices of the applicable offshore interbank markets as from time to time in
\neffect, and provided further that no such interest period shall extend beyond
\nthe Final Maturity Date.<\/p>\n
“PBGC”: the Pension Benefit Guaranty Corporation or any entity
\nsucceeding to any of its principal functions under ERISA.<\/p>\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 a
\nmultiple employer plan (as described in Section 4064(a) of ERISA) has made
\ncontributions at any time during the immediately preceding five (5) plan years.<\/p>\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.<\/p>\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<\/p>\n
4
\n 9
\nbased upon various factors including the Bank’s costs and desired return,
\ngeneral economic conditions and other factors, and is used as a reference point
\nfor pricing 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 effect
\nat the opening of business on the day specified in the public announcement of
\nsuch change.<\/p>\n
“Reference Rate Advance”: an Advance that bears interest based on the
\nReference Rate.<\/p>\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 by
\nthe PBGC.<\/p>\n
“Revolving Facility”: the line of credit described in Section 2.01.<\/p>\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 through
\nits Foreign Exchange Trading Center #5193, San Francisco, California, or such
\nother 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 prior
\nto the date as of which the foreign exchange computation is made.<\/p>\n
“Subsidiary”: any corporation, association, partnership, joint venture,
\nor other business entity of which more than 50% of the voting stock or other
\nequity interests (in the case of entities other than corporations), is owned or
\ncontrolled directly or indirectly by the Borrower or one or more Subsidiaries of
\nthe Borrower or a combination thereof.<\/p>\n
1.02 Financial Requirements. Unless otherwise specified in this
\nAgreement, all accounting terms used in this Agreement shall be interpreted, all
\nfinancial computations required under this Agreement shall be made, and all
\nfinancial information required under this Agreement shall be prepared, in
\naccordance with generally accepted accounting principles in effect from time to
\ntime in the United States, consistently applied.<\/p>\n
ARTICLE II<\/p>\n
THE CREDIT FACILITIES<\/p>\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 a
\nrevolving basis, will (i) make Advances to the Borrower or an Acceptable
\nSubsidiary, and (ii) issue commercial and standby letters of credit for the
\nBorrower’s or an Acceptable Subsidiary’s account.<\/p>\n
(b) Advances hereunder may be made in (i) dollars (“Dollar
\nAdvances”), or (ii) in a lawful currency other than dollars which is available
\nat a branch or affiliate of the Bank located in a country other than the United
\nStates and is the legal tender of that country where the branch or affiliate is
\nlocated (a “Local Currency”) (“Local Currency Advances”).<\/p>\n
(c) The aggregate of (i) all Dollar Advances, (ii) the
\nEquivalent Amount of all Local Currency Advances, and (iii) the L\/C Outstanding
\nAmount may not exceed at any one time the Credit Limit.<\/p>\n
2.02 Advances Under the Revolving Facility. (a) Subject to the other
\nprovisions of this Section , Dollar Advances under the Revolving Facility shall
\nbear interest at a rate per annum equal to the Reference Rate (the Reference
\nRate is referred to herein as the “Floating Rate”). The Borrower shall pay or
\ncause the applicable Acceptable Subsidiary to pay interest quarterly, on the
\nlast day of each calendar quarter until the Final Maturity Date, on which date
\nall accrued and unpaid interest shall be due and payable. The Borrower shall
\nrepay or cause the applicable Acceptable Subsidiary to repay the principal
\namount of each Reference<\/p>\n
5
\n 10
\nRate Advance on the date such advance is converted into an Offshore Rate Advance
\nor a CD Rate Advance under subsections (b) or (c) below, and on the Final
\nMaturity Date.<\/p>\n
(b) In lieu of the interest rate described above, the Borrower
\nor the applicable Acceptable Subsidiary may elect during the Availability Period
\nto have all or portions of Advances under the Revolving Facility be in dollars
\nand bear interest at the Offshore Rate plus 0.75% per annum during an Offshore
\nRate Interest Period, subject to the following requirements:<\/p>\n
(i) Each Offshore Rate Advance shall be for an amount
\n not less than $1,000,000.<\/p>\n
(ii) The Borrower shall pay or shall cause the
\n applicable Acceptable Subsidiary to pay interest on each Offshore Rate
\n Advance on the last day of the Offshore Rate Interest Period for such
\n Advance; provided, however, that if any Interest Period for a Offshore
\n Rate Advance exceeds three months, interest shall also be payable on the
\n date which falls three months after the beginning of such Interest
\n Period and on each date which falls three months after any such interest
\n payment date. The Borrower shall repay or shall cause the applicable
\n Acceptable Subsidiary to repay the principal balance of each Offshore
\n Rate Advance on the last day of the Offshore Rate Interest Period for
\n such Advance, and (if sooner occurring) on the Final Maturity Date.<\/p>\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.<\/p>\n
(c) In lieu of the interest rates described above in this
\nSection , the Borrower or the applicable Acceptable Subsidiary may elect during
\nthe Availability Period to have all or portions of Advances under the Revolving
\nFacility be in dollars and bear interest at the CD Rate plus 0.75% per annum
\nduring a CD Rate Interest Period, subject to the following requirements:<\/p>\n
(i) Each CD Rate Advance shall be in an amount not
\n less than $1,000,000.<\/p>\n
(ii) The Borrower shall pay or shall cause the
\n applicable Acceptable Subsidiary to pay interest on each CD Rate Advance
\n on the last day of the CD Rate Interest Period for such Advance;
\n provided, however, that if any Interest Period for a CD Rate Advance
\n exceeds 90 days, interest shall also be payable on the date which falls
\n 90 days after the beginning of such Interest Period and on each date
\n which falls 90 days after any such interest payment date. The Borrower
\n shall repay or shall cause the applicable Acceptable Subsidiary to repay
\n the principal balance of each CD Rate Advance on the last day of the CD
\n Rate Interest Period for such Advance, and (if sooner occurring) on the
\n Final Maturity Date.<\/p>\n
(iii) Any payment of a CD Rate Advance prior to the
\n last day of the CD Rate Interest Period for such Advance, whether
\n voluntary, by reason of acceleration or otherwise, including mandatory
\n payments required under this Agreement and applied by the Bank to a CD
\n Rate Advance, shall be accompanied by the amount of accrued interest on
\n the amount repaid and by the amount (if any) required by Section 3.11.<\/p>\n
2.03 Commercial Letters of Credit under the Revolving Facility. (a) Each
\ncommercial letter of credit shall be denominated in dollars and issued pursuant
\nto the terms and conditions hereof and of a Bank standard form Application and
\nSecurity Agreement for Commercial Letter of Credit (or such other form as the
\nBank may require) executed by the Borrower or an Acceptable Subsidiary.<\/p>\n
(b) Each commercial letter of credit shall:<\/p>\n
6
\n 11
\n (i) expire on or before 180 days after the date such
\n letter of credit is issued, but in no event later than June 30, 1998;<\/p>\n
(ii) require drafts payable in dollars at sight; and<\/p>\n
(iii) be otherwise in form and substance and in favor
\n of beneficiaries and for purposes satisfactory to the Bank.<\/p>\n
(c) The Borrower shall pay or cause the applicable Acceptable
\nSubsidiary to pay to the Bank issuance fees, negotiation fees, and other fees at
\nthe times and in the amounts the Bank advises the Borrower from time to time as
\nbeing applicable to the Borrower’s or the Acceptable Subsidiary’s commercial
\nletters of credit.<\/p>\n
(d) Each draft paid by the Bank under a commercial letter of
\ncredit issued hereunder shall be reimbursed by the Borrower or the applicable
\nAcceptable Subsidiary to the Bank on the date such draft is paid by the Bank.
\nAny sum owed to the Bank with respect to a commercial letter of credit issued
\nfor the Borrower’s or any Acceptable Subsidiary’s account which is not paid when
\ndue shall, at the option of the Bank in each instance, be deemed to be an
\nAdvance to the Borrower outstanding under the Revolving Facility and shall
\nthereafter bear interest at the Floating Rate.<\/p>\n
(e) In addition to any other rights or remedies which the Bank
\nmay have under this Agreement or otherwise, upon the occurrence of an Event of
\nDefault, the Bank may require the Borrower to provide cash collateral in the
\namount of the L\/C Outstanding Amount of any commercial letters of credit
\noutstanding under this Agreement.<\/p>\n
2.04 Standby Letters of Credit Under the Revolving Facility. (a) Each
\nstandby letter of credit shall be denominated in dollars and issued pursuant to
\nthe terms and conditions hereof and of a Bank standard form Application and
\nAgreement for Standby Letter of Credit (or such other form as the Bank may
\nrequire) executed by the Borrower or an Acceptable Subsidiary.<\/p>\n
(b) Each standby letter of credit shall: (i) expire on or before
\none year after the date such letter of credit is issued; provided, however, that
\nthere may be outstanding at any one time an aggregate amount of $1,000,000 of
\nstandby letters of credit which at the time of their issuance were to expire
\nmore than one year but no more than two years after the date of their issuance,
\nbut in no event shall any standby letter of credit expire later than December
\n31, 1998, and (ii) be otherwise in form and substance and in favor of
\nbeneficiaries and for purposes satisfactory to the Bank.<\/p>\n
(c) The Borrower shall pay to the Bank a non-refundable fee
\nequal to 0.75% per annum of the outstanding undrawn amount of each financial
\nstandby letter of credit and a non-refundable fee of 0.50% per annum of the
\noutstanding undrawn amount of each performance standby letter of credit, payable
\nin both cases quarterly in advance, and calculated on the basis of the face
\namount outstanding on the day the fee is calculated. However, if an Event of
\nDefault exists, at the option of the Bank, the amount of the fee shall be
\nincreased to 2.0% per annum, commencing on the day the Bank provides notice of
\nthe increase to the Borrower. The Borrower shall also pay such other fees and
\ncommissions at the times and in the amounts the Bank advises the Borrower from
\ntime to time as being applicable to the Borrower’s standby letters of credit.<\/p>\n
(d) Each draft paid by the Bank under a standby letter of credit
\nissued hereunder shall be reimbursed by the Borrower or the Acceptable
\nSubsidiary to the Bank on the date such draft is paid by the Bank. Any sum owed
\nto the Bank with respect to a standby letter of credit issued for the Borrower’s
\naccount which is not paid when due shall, at the option of the Bank in each
\ninstance, be deemed to be an Advance outstanding under the Revolving Facility
\nand shall thereafter bear interest at the Floating Rate.<\/p>\n
(e) In addition to any other rights or remedies which the Bank
\nmay have under this Agreement or otherwise, upon the occurrence of an Event of
\nDefault, the Bank may require the Borrower to<\/p>\n
7
\n 12
\nprovide cash collateral in the amount of the L\/C Outstanding Amount of any
\nstandby letters of credit outstanding under this Agreement.<\/p>\n
2.05 Local Currency Advances. (a) From time to time during the
\nAvailability Period, the Bank or any Offshore Credit Provider may, in its sole
\ndiscretion, make Local Currency Advances to the Borrower and to Acceptable
\nSubsidiaries.<\/p>\n
(b) Neither the Bank nor any Offshore Credit Provider shall make
\nany Local Currency Advance unless, at a minimum, the following conditions are
\nsatisfied:<\/p>\n
(i) the Bank and the Borrower or the relevant
\nAcceptable Subsidiary agree, at the time of Borrower’s or such Acceptable
\nSubsidiary’s request for a Local Currency Advance, on the currency, the amount,
\nthe principal payment date(s), the interest rate and payment date(s), the
\nprepayment and overdue payment terms, and the reserve, tax and other material
\nprovisions for such Advance; and<\/p>\n
(ii) The Borrower or such Acceptable Subsidiary shall
\nexecute such additional documentation as the Bank or such Offshore Credit
\nProvider may require relating to each Local Currency Advance.<\/p>\n
2.06 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 pay to the Bank, upon demand, the amount of the
\nexcess provided, that if the foregoing applies due to a change in applicable
\nrates of exchange between Dollars and Local Currencies, the Borrower shall be
\nobligated to pay such amount only if the excess is greater than $500,000 or the
\nEquivalent Amount thereof. Payments under this Section may be applied to the
\nobligations of the Borrower to the Bank in the order and manner as the Bank in
\nits discretion may determine. Payments to be applied to outstanding letters of
\ncredit may be used to prepay, or held as cash collateral to secure, the
\nBorrower’s or any Acceptable Subsidiary’s obligations to the Bank with respect
\nthereto.<\/p>\n
2.07 Commitment Fee. The Borrower shall pay to the Bank a commitment
\nfee at the rate of 0.25% 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 commitment
\nfee shall be computed on a calendar quarter basis, except for the first period
\nwhich shall commence on the date of this Agreement and end on March 31, 1996.
\nThe commitment fee shall be payable quarterly in arrears on the last day of each
\nsuccessive calendar quarter thereafter, and on the last day of the Availability
\nPeriod.<\/p>\n
2.08 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, (a) 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 the
\nrate of interest otherwise provided under this Agreement, and (b) Local Currency
\nAdvances shall at the option of the Bank be redenominated and converted into the
\nEquivalent Amount of Reference Rate Advances in Dollars.<\/p>\n
2.09 Early Termination of Commitment. The Borrower may at any time
\nterminate the Bank’s (including any Offshore Credit Provider’s) commitment to
\nextend credit hereunder by paying in full the entire amount of credit
\noutstanding hereunder (including the L\/C Outstanding Amount, together with any
\nsums due under Section 3.11. Payments to be applied to outstanding letters of
\ncredit may, at the Bank’s option, be used to prepay, or held as cash collateral
\nto secure, the Borrower’s and Acceptable Subsidiaries’ obligations to the Bank
\nwith respect thereto.<\/p>\n
8
\n 13
\n ARTICLE III<\/p>\n
EXTENSIONS OF CREDIT, PAYMENTS AND INTEREST CALCULATIONS<\/p>\n
3.01 Requests for Credit. Each request for an extension of credit shall
\nbe made in writing on a form acceptable to the Bank or in any other manner
\nacceptable to the Bank.<\/p>\n
3.02 Disbursements and Payments. Each disbursement by the Bank and each
\npayment by the Borrower under this Agreement shall be made in the funds and at
\nsuch branch of the Bank as the Bank may from time to time select.<\/p>\n
3.03 Branch Accounts. Each extension of credit under this Agreement
\nshall be made for the account of such branch, office, or affiliate of the Bank
\nas the Bank may from time to time select.<\/p>\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 be
\nevidenced by entries in records maintained by the Bank (or such Offshore Credit
\nProvider), and, if required by the Bank, by a promissory note or notes. Each
\npayment on and any other credits with respect to principal, interest, and all
\nother sums due under this Agreement shall be evidenced by entries to records
\nmaintained by the Bank or such Offshore Credit Provider. The loan accounts or
\nrecords maintained by the Bank or any Offshore Credit Provider shall be
\nconclusive absent manifest error of the amount of the credit extended hereunder
\nand the interest and payments thereon. Any failure to so record or any error in
\ndoing so shall not, however, limit or otherwise affect the obligation of the
\nBorrower or any Acceptable Subsidiary hereunder to pay any amount owing.<\/p>\n
3.05 Interest Calculation. Interest based on the Reference Rate shall
\nbe computed on the basis of a 365\/366-day year, actual days elapsed. All other
\ninterest and fees payable under this Agreement shall be computed on the basis of
\na 360 day year and actual days elapsed, which results in more interest or a
\nlarger fee than if a 365-366 day year were used.<\/p>\n
3.06 Late Payments; Compounding. Any sum payable by the Borrower
\nhereunder (including unpaid interest) if not paid when due shall bear interest
\n(payable on demand) from its due date until payment in full at a rate per annum
\nequal to the Reference Rate plus 2.0% per annum. At the option of the Bank, in
\neach instance, any sum payable hereunder which is not paid when due (including
\nunpaid interest) may be added to principal of the Revolving Facility and shall
\nthereafter bear interest at the rate applicable to principal.<\/p>\n
3.07 Business Day. Any sum payable by the Borrower hereunder which
\nbecomes due on a day which is not a Business Day shall be due on the next
\nBusiness Day after such due date, unless, in the case of an Offshore Rate Loan,
\nthe result of such extension would be to carry such Offshore Rate Interest
\nPeriod into another calendar month, in which event such Offshore Rate Interest
\nPeriod shall end on the immediately preceding Business Day. Any payments
\nreceived by the Bank 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.<\/p>\n
3.08 Taxes and Other Charges. (a) (i) If any taxes (other than taxes on
\nnet income (A) imposed by the country or any subdivision of the country in which
\nthe Bank’s principal office or actual lending office is located and (B) measured
\nby the United States taxable income the Bank would have received if all payments
\nunder or in respect of this Agreement and any instrument or agreement required
\nhereunder were exempt from taxes levied by the Borrower’s country) are at any
\ntime imposed on any payments under or in respect of this Agreement or any
\ninstrument or agreement required hereunder including, but not limited to,
\npayments made pursuant to this Section , the Borrower shall pay all such taxes
\nand shall also pay to the Bank, at the time interest is paid, all additional
\namounts which the Bank specifies as necessary to preserve the after-tax yield
\nthe Bank would have received if such taxes had not been imposed.<\/p>\n
9
\n 14
\n (ii) The additional amounts necessary to
\npreserve the after-tax yield the Bank would have received if such taxes had not
\nbeen imposed shall be calculated pursuant to the formula:<\/p>\n
(w)(t)(i)
\n y = ———
\n 1-w-t<\/p>\n
where the terms are defined as follows:<\/p>\n
y = additional payment to be made to the Bank<\/p>\n
w = withholding tax rate levied by foreign government<\/p>\n
t = the Bank’s combined Federal and state tax rate<\/p>\n
i = amount of interest to be paid on Credit
\n (computed by using the base rate plus quoted
\n spread)<\/p>\n
1 = one<\/p>\n
(b) The Borrower will provide the Bank with original tax
\nreceipts, notarized copies of tax receipts, or such other documentation as will
\nprove payment of tax in a court of law applying the United States Federal Rules
\nof Evidence, for all taxes paid by the Borrower pursuant to subsection (a)
\nabove. The Borrower will deliver receipts to the Bank within 30 days after the
\ndue date for the related tax.<\/p>\n
3.09 Illegality. (a) If the Bank determines that (i) the introduction
\nof any law, rule, regulation, treaty, or determination of an arbitrator or court
\nor other governmental authority or any change in or in the interpretation or
\nadministration thereof has made it unlawful, or that any central bank or other
\ngovernmental authority has asserted that it is unlawful, for the Bank (directly
\nor through any Offshore Credit Provider) to make or extend any Advance or other
\ncredit under this Agreement, or (ii) any order, judgment, or decree of any
\ngovernmental authority or arbitrator purports by its terms to enjoin or restrain
\nthe Bank (or any Offshore Credit Provider) from making or extending any Advance
\nor other credit hereunder, then, on notice thereof by the Bank to the Borrower,
\nthe obligation of the Bank to make or extend such Advance or other credit
\n(directly or through any Offshore Credit Provider) shall be suspended until the
\nBank shall have notified the Borrower that the circumstances giving rise to such
\ndetermination no longer exist.<\/p>\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 prepay in full all Offshore
\nRate Advances or Local Currency Advances, as the case may be then outstanding,
\ntogether with 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 interest
\nperiod, or immediately, if the Bank may not lawfully continue to maintain such
\nAdvances or such loans have no interest period, together with any amounts
\nrequired to be paid in connection therewith pursuant to Section 3.11.<\/p>\n
3.10 Increased Costs. The Borrower shall pay to the Bank, on demand,
\nthe Bank’s costs or losses arising from any statute or regulation, or any
\nrequest or requirement of a regulatory agency which is applicable to all
\nnational banks or a class of all national banks. The costs and losses will be
\nallocated to this facility in a manner determined by the Bank, using any
\nreasonable method. The costs include the following:<\/p>\n
(a) any reserve or deposit requirements; and<\/p>\n
10
\n 15
\n (b) any capital requirements relating to the Bank’s assets
\nand commitments for credit.<\/p>\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 a
\nconsequence of the failure of the Borrower (or any Acceptable Subsidiary) to
\nmake any payment or prepayment of principal of any Advance hereunder made at a
\nrate of interest related to the Offshore Rate or the CD Rate (including payments
\nmade after 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 is
\nnot the last day of the interest period with respect thereto (including payments
\nmade after any acceleration thereof or because the total amount of credit
\nexceeds the limitations set forth herein), or the redenomination and conversion,
\nupon the occurrence of any Event of Default, of an Advance which bears interest
\nat such a rate; including any such loss or expense arising from the liquidation
\nor reemployment of funds obtained by it to maintain its Advances made at a rate
\nrelated to the Offshore Rate or the CD Rate hereunder or from fees payable to
\nterminate any deposits from which such funds were obtained or deemed obtained.<\/p>\n
3.12 Inability to Determine Rates. The Bank has no obligation to accept
\nan election for an Offshore Rate Advance or a CD Rate Advance if (a) Dollar
\ndeposits in the principal amount, and for the period equal to the interest
\nperiod, for such Advance are not available in the applicable funding market; or
\n(b) the Offshore Rate or CD Rate does not accurately reflect the cost of such
\nAdvance. Nothing contained herein shall, however, obligate the Bank to obtain
\nthe funds for any Advance in any particular manner.<\/p>\n
3.13 Certificate of the Bank. If the Bank claims any reimbursement or
\ncompensation pursuant to Section 3.10 or Section 3.11 hereof, then the Bank
\nshall deliver to the Borrower a certificate setting forth in reasonable detail
\nthe amount payable to the Bank thereunder and such certificate shall be
\nconclusive and binding on the Borrower in the absence of manifest error.<\/p>\n
3.14 Debits to Borrower’s Account. The Borrower hereby authorizes the
\nBank to debit the Borrower’s deposit account number 14861-00388 at the Global
\nPayments Operations, Concord, CA, office of the Bank in the amount of principal,
\ninterest, fees, or any other amount due under this Agreement or under any
\ninstrument or agreement required under this Agreement. The Bank may, at its
\noption, debit the account on the date such amounts become due, or, if such due
\ndate is not a Business Day, on the next Business Day after such due date. If
\nthere are insufficient funds in the account to cover the amount debited to the
\naccounts in accordance with this Section , such debit may be reversed in whole
\nor in part, at the option of the Bank in its sole discretion, and the amount not
\ndebited shall be deemed to remain unpaid.<\/p>\n
3.15 Survival. The agreements and obligations of the Borrower under
\nSections 3.08 through 3.11 hereof shall survive the payment of all other
\nobligations of the Borrower hereunder.<\/p>\n
ARTICLE IV<\/p>\n
CONDITIONS TO AVAILABILITY OF CREDIT.<\/p>\n
The Bank’s obligation to extend credit under this Agreement is subject
\nto the Bank’s receipt of the following, each in form and substance satisfactory
\nto the Bank:<\/p>\n
4.01 Conditions to First Extension of Credit. Before the first
\nextension of credit:<\/p>\n
(a) This Agreement, executed by the Borrower;<\/p>\n
(b) Satisfactory evidence of due authorization of the
\nexecution, delivery, and performance by the Borrower and any Acceptable
\nSubsidiary of this Agreement and any other Credit Documents, including certified
\nresolutions, incumbency certificate, articles of incorporation and bylaws;<\/p>\n
11
\n 16
\n (c) Certificates of state officials showing that the Borrower
\nis in good standing or qualified to conduct business under the laws of the state
\nof its organization and, if requested by the Bank, in any other state in which
\nthe Borrower is required to be so qualified;<\/p>\n
(d) A certificate of an appropriate officer of the Borrower
\nas to the matters set forth in Section 4.02(a) and (b);<\/p>\n
(e) Payment of any fee or expense required hereunder prior to
\nthe first extension of credit; and<\/p>\n
(f) A continuing guaranty in favor of the Bank, executed by
\nthe Borrower, guaranteeing all debts and obligations (whether contingent or
\notherwise) of any and all Acceptable Subsidiaries arising under or in connection
\nwith this Agreement.<\/p>\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:<\/p>\n
(a) The representations and warranties of the Borrower
\ncontained in this Agreement shall be true on and as of the date of each
\nextension of credit;<\/p>\n
(b) Immediately prior to and immediately after giving effect
\nto such extension of credit, no Default or Event of Default shall exist; and<\/p>\n
(c) Executed originals of all Credit Documents required under
\nArticle II shall have been delivered to the Bank.<\/p>\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 request
\nand as of the date of each extension of credit, that the conditions in this
\nSection are satisfied.<\/p>\n
ARTICLE V<\/p>\n
REPRESENTATIONS AND WARRANTIES<\/p>\n
The Borrower represents and warrants that:<\/p>\n
5.01 Corporate Existence and Power. The Borrower, and each Acceptable
\nSubsidiary: (a) is a corporation duly organized and existing under the laws of
\nthe jurisdiction of its organization; (b) has the power and authority and all
\ngovernmental licenses, authorizations, consents, and approvals to own its
\nassets, carry on its business, and to execute, deliver, and perform its
\nobligations under, the Credit Documents; and (c) is duly qualified and properly
\nlicensed and in good standing under the laws of each jurisdiction where its
\nownership, lease, or operation of property or the conduct of its business
\nrequires such license or qualification.<\/p>\n
5.02 Authorization. The execution, delivery, and performance by the
\nBorrower and each Acceptable Subsidiary of this Agreement and any other Credit
\nDocument to which any of them is a party, have been duly authorized by all
\nnecessary corporate action, and do not and will not:<\/p>\n
(a) contravene the terms of any organizational or charter
\ndocuments;<\/p>\n
(b) conflict with or result in any breach or contravention of,
\nor the creation of any lien, security interest, or charge under, any agreement,
\ncontract, indenture, document, or instrument to which the Borrower or any
\nAcceptable Subsidiary is a party or by which any property is bound, or any
\norder, injunction, writ, or decree of any governmental authority to which the
\nBorrower or any Acceptable Subsidiary or any property is subject; or<\/p>\n
12
\n 17
\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 any
\nproperty.<\/p>\n
5.03 Enforceability. This Agreement is a legal, valid, and binding
\nagreement of the Borrower, enforceable against the Borrower in accordance with
\nits terms, and the other Credit Documents and any other instrument or agreement
\nrequired under this Agreement, when executed and delivered, will be legal,
\nvalid, binding, and enforceable in accordance with its terms against the
\nBorrower or the Acceptable Subsidiary, as applicable<\/p>\n
5.04 Compliance with Laws. Each of the Borrower and the Acceptable
\nSubsidiaries is in compliance with all foreign, federal, state and local laws,
\nrules, regulations and determinations of arbitrators, courts and other
\ngovernmental authorities materially affecting the business, operations or
\nproperty of the Borrower and the Acceptable Subsidiaries (including
\nEnvironmental Laws).<\/p>\n
5.05 Permits, Franchises. The Borrower or its Subsidiaries possess all
\npermits, memberships, franchises, contracts, and licenses required and all
\ntrademark rights, trade name rights, patent rights, and fictitious name rights
\nnecessary to enable the Borrower and its Subsidiaries to conduct the businesses
\nin which they are now engaged.<\/p>\n
5.06 Litigation. There is no litigation, tax claim, proceeding,
\ngovernmental or administrative action, arbitration proceeding or dispute
\npending, or, to the knowledge of the Borrower, threatened, against or affecting
\nthe Borrower or any of its Subsidiaries or any of their properties, the adverse
\ndetermination of which would result in a Material Adverse Effect.<\/p>\n
5.07 No Event of Default. There exists no Default or Event of
\nDefault.<\/p>\n
5.08 Other Obligations. As of the Closing Date, the Borrower is not in
\ndefault under any other agreement involving the borrowing of money, the
\nextension of credit, or the lease of real or personal property, to which the
\nBorrower is a party as borrower, guarantor, installment purchaser, or lessee,
\nexcept as disclosed in writing to the Bank prior to the Closing Date.<\/p>\n
5.09 Tax Returns. The Borrower has no knowledge of any material pending
\nassessments or adjustments with respect to its income tax liabilities for any
\nyear, except as disclosed in writing to the Bank prior to the Closing Date.<\/p>\n
5.10 Information Submitted. All financial and other information that
\nhas been submitted by the Borrower to the Bank, including the Borrower’s
\nfinancial statement delivered to the Bank most recently prior to the Closing
\nDate: (a) in the case of financial statements, is prepared in accordance with
\ngenerally accepted accounting principles consistently applied; and (b) is true
\nand correct 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.<\/p>\n
5.11 No Material Adverse Effect. Since June 30, 1995, there has been
\nno Material Adverse Effect.<\/p>\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 governmental
\nauthority, with respect to any Plan which has resulted or could reasonably be
\nexpected to result in a Material Adverse Effect; (c) there has been no
\nprohibited transaction or other violation of the fiduciary responsibility rule
\nwith respect to any Plan which could reasonably result in a Material Adverse
\nEffect; (d) each Plan which is intended to qualify under Section 401(a) of the
\nCode has received a favorable determination letter from the Internal Revenue
\nService and to the best knowledge of the Borrower, nothing has occurred which
\nwould cause the loss of such qualification; (e) as of the Closing Date, neither
\nthe Borrower nor any ERISA Affiliate maintains or contributes to any Pension<\/p>\n
13
\n 18
\nPlan or other Plan subject to Section 412 of the Code; and (f) neither the
\nBorrower or entity under common control with the Borrower in the preceding
\nsentence has ever contributed to any multiemployer plan within the meaning of
\nSection 4001(a)(3) of ERISA.<\/p>\n
5.13 Environmental Matters. (a) The Borrower has no knowledge or reason
\nto believe (i) that the properties of the Borrower and its Subsidiaries contain
\nor have previously contained (at, under, or about any such property) any
\nHazardous Substances or other contamination (A) in amounts or concentrations
\nthat constitute or constituted a violation of, or could give rise to a material
\nliability under, any Environmental Laws, (B) which could materially interfere
\nwith the continued operation of such property, or (C) which could materially
\nimpair the fair market value thereof; or (ii) that there has been transportation
\nor disposal of Hazardous Substances from, nor any release or threatened release
\nof Hazardous Substances at or from, any property of the Borrower or any of its
\nSubsidiaries in violation of or in any manner which could give rise to a
\nmaterial liability under any Environmental Laws.<\/p>\n
(b) Neither the Borrower nor any of its Subsidiaries has
\nreceived or is aware of any material claim or notice of material violation,
\nalleged material violation, non-compliance, liability or potential liability
\nregarding environmental matters or compliance with Environmental Laws with
\nregard to the properties or operations of the Borrower or any of its
\nSubsidiaries, nor does the Borrower have knowledge or reason to believe that any
\nsuch action is being contemplated, considered, or threatened.<\/p>\n
ARTICLE VI<\/p>\n
AFFIRMATIVE COVENANTS<\/p>\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:<\/p>\n
6.01 Notices of Certain Events. The Borrower shall promptly give
\nwritten notice to the Bank of:<\/p>\n
(a) all litigation, proceedings or actions affecting the
\nBorrower or its Subsidiaries where the amount claimed is $2,000,000 or its
\nEquivalent Amount or more;<\/p>\n
(b) any substantial dispute which may exist between the
\nBorrower or its Subsidiaries and any governmental regulatory body or law
\nenforcement authority;<\/p>\n
(c) any Default or Event of Default;<\/p>\n
(d) any of the representations and warranties in Article V
\nceasing to be true and correct;<\/p>\n
(e) any ERISA event, the adoption of any Pension Plan or any
\nother new Plan subject to Section 412 of the Code by the Borrower or any entity
\nunder the control of or under common control with the Borrower, or the
\ncommencement of contributions to such a Plan; and<\/p>\n
(f) any other matter which has resulted or could reasonably be
\nexpected to result in a Material Adverse Effect.<\/p>\n
6.02 Financial and Other Information. The Borrower shall deliver to
\nthe Bank in form and detail satisfactory to the Bank, and in such number of
\ncopies as the Bank may request:<\/p>\n
(a) Within 95 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;<\/p>\n
14
\n 19
\n (b) Within 50 days after the end of each of the first three
\nquarterly accounting periods, of Borrower’s fiscal year the Borrower’s
\nconsolidated financial statements for such period prepared by the Borrower and
\ncertified by the Borrower as fairly presenting Borrower’s financial condition
\nand results of operations;<\/p>\n
(c) Within 15 days after the date of filing with the
\nSecurities and Exchange Commission, copies of any of the Borrower’s Form 10-K
\nAnnual Reports, Form 10-Q Quarterly Reports and Form 8-K Current Reports; and<\/p>\n
(d) Promptly upon request, such other materials and
\ninformation relating to the Borrower or its Subsidiaries as the Bank may
\nrequest.<\/p>\n
6.03 Books, Records, Audits and Inspections. The Borrower shall, and
\nshall cause its Subsidiaries to, maintain adequate books, accounts and records,
\nand prepare all financial statements required hereunder in accordance with
\ngenerally accepted accounting principles consistently applied, and in compliance
\nwith the regulations of any governmental regulatory body having jurisdiction
\nover the Borrower or its Subsidiaries, or the Borrower’s or its Subsidiaries’
\nbusinesses, and permit employees or agents of the Bank at any reasonable time to
\ninspect the Borrower’s and its Subsidiaries’ properties, and to examine or audit
\nthe Borrower’s and its Subsidiaries’ books, accounts, and records and make
\ncopies and memoranda thereof.<\/p>\n
6.04 Use of Facility. The Borrower shall use the credit facility
\nprovided herein solely for working capital and other general corporate purposes
\nnot in contravention of any requirement of law.<\/p>\n
6.05 Insurance. The Borrower shall maintain and keep in force insurance
\nof the types and in amounts customarily carried in lines of businesses similar
\nto those of the Borrower, including fire, extended coverage, public liability
\n(including coverage for contractual liability), property damage (including use
\nand occupance), business interruption, and workers’ compensation, all carried by
\ninsurers and in amounts satisfactory to the Bank, with loss payable endorsements
\non such types of insurance as the Bank may request, and deliver to the Bank from
\ntime to time, at the Bank’s request, a copy of each insurance policy, or if
\npermitted by the Bank, a certificate of insurance setting forth all insurance
\nthen in effect.<\/p>\n
6.06 Compliance with Laws. The Borrower shall at all times comply with,
\nand cause its Subsidiaries to comply with, all laws, statutes (including any
\nfictitious name statute), rules, regulations, orders, and directions of any
\ngovernmental authority having jurisdiction over the Borrower or any of its
\nSubsidiaries or the business of the Borrower or any of its Subsidiaries
\n(including ERISA and all Environmental Laws).<\/p>\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 name
\nof any Acceptable Subsidiary, (b) the Borrower’s or any Acceptable Subsidiary’s
\nbusiness or legal structure, or (c) the Borrower’s or any Acceptable
\nSubsidiary’s place of business or chief executive office if the Borrower has
\nmore than one place of business.<\/p>\n
6.08 Existence and Properties. The Borrower and each of its
\nSubsidiaries shall maintain and preserve its existence and all rights,
\nprivileges, and franchises now enjoyed, conduct its business in an orderly,
\nefficient, and customary manner, keep all the its properties in good working
\norder and condition, and from time to time make all needed repairs, renewals, or
\nreplacements thereto and thereof so that the efficiency of such property shall
\nbe fully maintained and preserved.<\/p>\n
6.09 Additional Acts. The Borrower shall perform, on request of the
\nBank, such acts as may be necessary or advisable to perfect any lien or security
\ninterest contemplated hereby or otherwise to carry out the intent of this
\nAgreement, including the provision of opinions of counsel for the Borrower
\naddressing such matters as may reasonably be requested by the Bank.<\/p>\n
15
\n 20
\n ARTICLE VII<\/p>\n
NEGATIVE COVENANTS<\/p>\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:<\/p>\n
7.01 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 or
\nof any of its or their property, real or personal, whether now owned or
\nhereafter acquired, except: (a) security interests and deeds of trust in favor
\nof the Bank; (b) liens, security interests, and encumbrances in existence as of
\nthe date of this Agreement and disclosed to the Bank in writing prior to the
\nClosing Date; (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 other
\nsocial 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 (other than property
\nclassified as inventory or current assets) hereafter acquired when the security
\ninterest does not extend beyond the property purchased, does not exceed the
\nvalue of such property, and secures only obligations incurred to purchase such
\nproperty.<\/p>\n
7.02 Acquisitions. The Borrower and its Subsidiaries shall not acquire
\nor purchase control of, or the assets or business of, any other person, firm, or
\ncorporation, unless such person, firm or corporation engages in the same general
\nline of business as the Borrower, the Borrower or its Subsidiary is the entity
\nwhich survives the transaction, and the transaction would not result in the
\nbreach of any warranty or covenant hereunder.<\/p>\n
7.03 Loans. Neither the Borrower nor any of its Subsidiaries shall make
\nany loans, advances, or other extensions of credit to any of the Borrower’s or
\nsuch Subsidiary’s executives, officers, or directors or shareholders (or any
\nrelatives of any of the foregoing) except loans to employees made in the
\nordinary course of their employment; or make loans, advances or other extensions
\nof credit to or invest in any other person, firm, corporation, or other entity
\nother than (a) investments in cash equivalents; (b) extensions of credit in the
\nnature of accounts receivable or notes receivable arising from the sale or lease
\nof goods 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 its
\nwholly-owned Subsidiaries to another of its wholly-owned Subsidiaries; and (d)
\ninvestments made in the course of transactions permitted by Section 7.02.<\/p>\n
7.04 Liquidations and Mergers. The Borrower and its Subsidiaries shall
\nnot liquidate or dissolve or enter into any consolidation, merger, partnership,
\njoint venture, or other combination, except (i) consolidations or mergers of
\nSubsidiaries into Borrower, (ii) consolidations or mergers of Subsidiaries of
\nthe Borrower when such a Subsidiary survives the transaction, and (iii)
\ntransactions permissible pursuant to Section 7.02.<\/p>\n
7.05 Sale of Assets. Neither the Borrower nor any of its Subsidiaries
\nshall (a) sell, lease, or otherwise dispose of its business or assets as a whole
\nor such as in the opinion of the Bank constitutes a substantial portion of its
\nbusiness or assets; (b) sell, encumber, or otherwise dispose of any of its
\naccounts receivable except accounts receivable in an aggregate amount not in
\nexcess of $5,000,000 where the account debtor is located in Japan; (c) sell or
\notherwise dispose of any of its assets except for full, fair and reasonable
\nconsideration; or (d) enter into any sale and leaseback agreement covering any
\nof its fixed or capital assets, except sale and leaseback agreements entered
\ninto solely for the purpose of financing the purchase of such assets at the time
\nof their purchase.<\/p>\n
7.06 Business Activities. The Borrower shall not engage in any
\nbusiness activities or operations substantially different from or unrelated to
\npresent business activities and operations.<\/p>\n
16
\n 21
\n 7.07 Regulations G, T, U, and X. The Borrower shall not, and shall not
\npermit any of its Subsidiaries to, use any portion of the proceeds of any
\nAdvances or extensions of credit hereunder, directly or indirectly, (i) to
\npurchase or carry margin stock (within the meanings of Regulations G, T, U, and
\nX of the FRB), (ii) to repay or otherwise refinance indebtedness of the Borrower
\nor others incurred to purchase or carry any such margin stock, (iii) to extend
\ncredit for the purpose of purchasing or carrying any such margin stock, or (iv)
\nto acquire any security in any transaction that is subject to Section 13 or 14
\nof the Securities Exchange Act of 1934, as amended.<\/p>\n
7.08 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 be
\nless than $88,000,000 plus (i) 75% of net income after income taxes (without
\nsubtracting losses) earned in each quarterly accounting period commencing after
\nJune 30, 1995, plus (ii) the net proceeds from any equity securities issued
\nafter June 30, 1995, less (iii) the amount of equity securities repurchased
\nafter June 30, 1995, where:<\/p>\n
“Tangible Net Worth” means the gross book value of the assets
\n of the Borrower and its Subsidiaries on a consolidated basis (exclusive
\n of goodwill, patents, trademarks, trade names, organization expense,
\n treasury stock, unamortized debt discount and expense, deferred charges,
\n and other like intangibles) less (a) reserves applicable thereto, and
\n (b) all liabilities (including accrued and deferred income taxes).<\/p>\n
7.09 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
\nratio of the Borrower’s total liabilities to Tangible Net Worth to exceed the
\nratio of 1.00 to 1.00, where Tangible Net Worth has the meaning specified in
\nSection 7.08.<\/p>\n
7.10 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 and
\naccounts receivable to be less than 1.50 times current liabilities, including
\nthe dollar or Equivalent Amount of all outstanding Advances and of the L\/C
\nOutstanding Amount.<\/p>\n
7.11 Maintenance of Profitability. The Borrower on a consolidated basis
\nshall not incur (a) any quarterly net or operating loss in any two consecutive
\nfiscal quarters or (b) any quarterly net or operating loss in excess of 5.0% of
\nTangible Net Worth, where, Tangible Net Worth has the meaning specified in
\nSection 7.08.<\/p>\n
ARTICLE VIII<\/p>\n
EVENTS OF DEFAULT<\/p>\n
8.01 Events of Default. The occurrence of any of the following events
\nshall constitute an “Event of Default” under this Agreement:<\/p>\n
(a) Failure to Pay. The Borrower or any Acceptable Subsidiary
\nfails to pay any installment of principal when due, or fails to pay within five
\ndays after the same becomes due any interest, fee or any other sum due under
\nthis Agreement or any other Credit Document in accordance with the terms hereof
\nor thereof.<\/p>\n
(b) Breach of Representation or Warranty. Any representation
\nor warranty herein or in any other Credit Document proves to have been false or
\nmisleading in any material respect when made or deemed made hereunder.<\/p>\n
(c) Specific Defaults. The Borrower fails to perform or
\nobserve any term, covenant or agreement contained in Section 6.01, 6.02 or 6.03
\nor Article VII hereof.<\/p>\n
17
\n 22
\n (d) Other Defaults. The Borrower fails to perform or observe
\nany other term or covenant contained in this Agreement or any Credit Document
\nand such default shall continue unremedied for a period of 30 days after the
\nearlier of (i) the date upon which an officer of the Borrower knew or reasonably
\nshould have known of such failure or (ii) the date upon which written notice
\nthereof is given to the Borrower by the Bank.<\/p>\n
(e) Judgments. One or more judgments or arbitration awards are
\nentered against the Borrower or any of its Subsidiaries, or the Borrower or any
\nof its Subsidiaries enters into any settlement agreement with respect to any
\nlitigation or arbitration, in the aggregate amount of $5,000,000 or an
\nEquivalent Amount or more on a claim or claims not covered by insurance.<\/p>\n
(f) Failure to Pay Debts; Voluntary Bankruptcy. The Borrower
\nor any Acceptable Subsidiary (i) fails to pay the Borrower’s or such
\nSubsidiary’s debts generally as they come due, or (ii) files any petition,
\nproceeding, case, or action for relief under any bankruptcy, reorganization,
\ninsolvency, or moratorium law, or any other law or laws for the relief of, or
\nrelating to, debtors.<\/p>\n
(g) Involuntary Bankruptcy. An involuntary petition is filed
\nunder any bankruptcy or similar statute against the Borrower or any Acceptable
\nSubsidiary, or a receiver, trustee, liquidator, assignee, custodian,
\nsequestrator, or other similar official is appointed to take possession of the
\nproperties of the Borrower or any Acceptable Subsidiary.<\/p>\n
(h) Default of Other Financial Obligations. Any default occurs
\nunder any other agreement involving the borrowing of money or the extension of
\ncredit having an aggregate principal amount (including undrawn committed or
\navailable amounts and including amounts owing to all creditors under any
\ncombined or syndicated credit arrangement) of more than $1,000,000 or an
\nEquivalent Amount to which the Borrower or any Subsidiary may be a party as
\nborrower, guarantor, or installment purchaser, if such default consists of the
\nfailure to pay any obligation when due or if such default gives to the holder of
\nthe obligation concerned the right to accelerate the obligation.<\/p>\n
(i) Default under other Credit Documents. Any Credit Document
\n(other than this Agreement), guaranty, subordination agreement, or other
\nagreement or instrument required hereunder or executed in connection herewith is
\nbreached or becomes ineffective or any default occurs under any such agreement
\nor instrument.<\/p>\n
(j) Default of Other Bank Obligations. Any default occurs
\nunder any other obligation of the Borrower or any Subsidiary to the Bank or to
\nany subsidiary or affiliate of the Bank.<\/p>\n
(k) Material Adverse Effect. There occurs a Material Adverse
\nEffect.<\/p>\n
(l) 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 IV of ERISA to the Pension Plan or PBGC in
\nan aggregate amount in excess of $500,000; or (ii) any of the representations
\nand warranties contained in Section 5.12 shall cease to be true and correct
\nwhich, individually or in combination, has resulted or could reasonably be
\nexpected to result in a Material Adverse Effect.<\/p>\n
(m) Change of Control. (i) any person or two or more persons
\nacting in concert shall acquire beneficial ownership, directly or indirectly, of
\nsecurities of the Borrower (or other securities convertible into such
\nsecurities) representing 25% 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 of
\nthe Board of Directors of the Borrower unless the persons replacing such
\nindividuals were nominated by the Board of Directors of the Borrower; or (iii)
\nany person or two or more persons acting in concert acquiring by contract or
\notherwise, or entering into a contract or arrangement which upon consummation
\nwill result in its or their acquisition of, or control over, securities of the
\nBorrower (or other securities convertible into such securities) representing 25%<\/p>\n
18
\n 23
\nor more of the combined voting power of all securities of the Borrower entitled
\nto vote in the election of directors.<\/p>\n
8.02 Remedies. If any Event of Default occurs,<\/p>\n
(a) any indebtedness of the Borrower or of any Acceptable
\nSubsidiary under 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 maximum
\naggregate amount that is or at any time thereafter may become available for
\ndrawing under any then-outstanding letters of credit, (whether or not any
\nbeneficiary shall have presented, or be entitled at such time to present, the
\ndrafts or other documents required to draw under such letters of credit) to be
\nimmediately due and payable;<\/p>\n
(b) the obligation, if any, of the Bank (including through any
\nOffshore Credit Provider) to make further loans or extensions of credit or to
\nissue further letters of credit hereunder shall immediately cease and terminate;
\nand<\/p>\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 rights
\nof a beneficiary or secured party pursuant to applicable law.<\/p>\n
All 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.<\/p>\n
ARTICLE IX<\/p>\n
MISCELLANEOUS<\/p>\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.<\/p>\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 right,
\nremedy, power, or privilege hereunder, shall operate as a waiver thereof; nor
\nshall any single or partial exercise of any right, remedy, power, or privilege
\nhereunder preclude any other or further exercise thereof or the exercise of any
\nother right, remedy, power, or privilege. No consent or waiver under this
\nAgreement shall be effective unless in writing. No waiver of any breach or
\ndefault shall be deemed a waiver of any breach or default thereafter occurring.<\/p>\n
9.03 Governing Law. This Agreement shall be governed by and construed
\nunder the laws of the State of California.<\/p>\n
9.04 Costs and Attorneys’ Fees. The Borrower shall, whether or not the
\ntransactions contemplated hereby shall be consummated, pay or reimburse the Bank
\non demand for all costs and expenses incurred by the Bank in connection with the
\ndevelopment, preparation, delivery, administration, and execution of, and any
\namendment, supplement, waiver or modification to, this Agreement and any other
\nCredit Document and the consummation of the transactions contemplated hereby and
\nthereby, including reasonable attorney fees and disbursements and the allocated
\ncost of internal counsel and disbursements, incurred by the Bank with respect<\/p>\n
19
\n 24
\nthereto; and in connection with the enforcement, attempted enforcement or
\npreservation of any rights or remedies hereunder or under any Credit Document,
\nincluding any “workout” or restructuring under this Agreement, including
\nattorney fees and disbursements and the allocated cost of internal counsel and
\ndisbursements.<\/p>\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.<\/p>\n
9.06 Borrower’s Documents. The Bank shall be under no obligation to
\nreturn any schedules, invoices, statements, budgets, forecasts, reports or other
\npapers delivered by the Borrower and shall destroy or otherwise dispose of same
\nat such time as the Bank, in its discretion, deems appropriate.<\/p>\n
9.07 Participations. The Bank may at any time sell, assign, grant
\nparticipations in, or otherwise transfer to any other person, firm, corporation
\nor other entity (a “Participant”) all or part of the obligations of the Borrower
\nand any Acceptable Subsidiary under this Agreement and any other Credit
\nDocument. The Borrower authorizes the Bank and each Participant, upon the
\noccurrence of an Event of Default, to proceed directly by right of setoff,
\nbanker’s lien, or otherwise, against any assets of the Borrower and any
\nAcceptable Subsidiary which may be in the hands of the Bank or such Participant,
\nrespectively. The Borrower authorizes the Bank to disclose to any prospective
\nParticipant and any Participant any and all information in the Bank’s possession
\nconcerning the Borrower and its Subsidiaries, this Agreement or any other Credit
\nDocument.<\/p>\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 any
\nand 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 counsel)
\nof any kind or nature whatsoever with respect to the execution, delivery,
\nenforcement, performance, and administration of this Agreement and any other
\nCredit Documents, or the transactions contemplated hereby and thereby, and with
\nrespect to any investigation, litigation, or proceeding related to this
\nAgreement, any violation of any Environmental Law by the Borrower or its
\nSubsidiaries, any release of a Hazardous Substance at or from any property of
\nthe Borrower or any of its Subsidiaries, or the loans and other extensions of
\ncredit hereunder or the use of the proceeds thereof, whether or not any
\nIndemnified Person is a party thereto (all the foregoing, collectively, the
\n“Indemnified Liabilities”); provided, that the Borrower shall have no obligation
\nhereunder to any Indemnified Person with respect to Indemnified Liabilities
\narising from the gross negligence or willful misconduct of such Indemnified
\nPerson. The agreements in this Section shall survive payment of all other
\nobligations of the Borrower or any Acceptable Subsidiary hereunder or under the
\nother Credit Documents.<\/p>\n
9.09 Arbitration; Reference Proceeding. (a) Any controversy or claim
\nbetween or among the parties, including but not limited to those arising out of
\nor relating to this Agreement or any other Credit Document or other agreements
\nor instruments relating hereto or delivered in connection herewith and any claim
\nbased on or arising from an alleged tort, shall at the request of any party be
\ndetermined by arbitration. The arbitration shall be conducted in accordance with
\nthe United States Arbitration Act (Title 9, U.S. Code), notwithstanding any
\nchoice of law provision in this Agreement, and under the Commercial Rules of the
\nAmerican Arbitration Association (“AAA”). The arbitrator(s) shall give effect to
\nstatutes of limitation in determining any claim. Any controversy concerning
\nwhether an issue is arbitrable shall be determined by the arbitrator(s).
\nJudgment upon the arbitration award may be entered in any court having
\njurisdiction. The institution and maintenance of an action for judicial relief
\nor pursuit of a provisional or ancillary remedy shall not constitute a waiver of
\nthe right of any party, including the plaintiff, to submit the controversy or
\nclaim to arbitration if any other party contests such action for judicial
\nrelief.<\/p>\n
(b) Notwithstanding the provisions of subsection (a) of this
\nSection , no controversy or claim shall be submitted to arbitration without the
\nconsent 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 which
\nis secured by real property<\/p>\n
20
\n 25
\ncollateral located in California. If all parties do not consent to submission of
\nsuch a controversy or claim to arbitration, the controversy or claim shall be
\ndetermined as provided in subsection (c) of this Section .<\/p>\n
(c) A controversy or claim which is not submitted to
\narbitration as provided and limited in subsections (a) and (b) of this Section
\nshall, at the request of any party, be determined by a reference in accordance
\nwith California 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 selected
\nunder the auspices of the AAA in the same manner as arbitrators are selected in
\nAAA-sponsored proceedings. The presiding referee of the panel, or the referee if
\nthere is a single referee, shall be an active attorney or retired judge.
\nJudgment upon the award rendered by such referee or referees shall be entered in
\nthe court in which such proceeding was commenced in accordance with California
\nCode of Civil Procedure Sections 644 and 645.<\/p>\n
(d) No provision of this paragraph shall limit the right of
\nany party to this Agreement to exercise self-help remedies such as setoff, to
\nforeclose against or sell any real or personal property collateral or security,
\nor to obtain provisional or ancillary remedies from a court of competent
\njurisdiction before, after, or during the pendency of any arbitration or other
\nproceeding. The exercise of a remedy does not waive the right of either party to
\nresort to arbitration or reference. At the Bank’s option, foreclosure under a
\ndeed of trust or mortgage may be accomplished either by exercise of power of
\nsale under the deed of trust or mortgage or by judicial foreclosure.<\/p>\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 at
\nits address specified on the signature pages hereof, or to such other address as
\nshall be designated by such party in a written notice to the other parties.<\/p>\n
(b) All such notices and communications shall, when
\ntransmitted by overnight delivery, be effective when delivered for overnight
\ndelivery, or if personally delivered, upon such personal delivery, except that
\nnotices pursuant to Article II shall not be effective until actually received by
\nthe Bank.<\/p>\n
(c) The Borrower acknowledges and agrees that any agreement of
\nthe Bank pursuant to Article II hereof to receive notices by telephone or
\nfacsimile is solely for the convenience and at the request of the Borrower.
\nTelephone requests may be made by any individual identified in writing to the
\nBank on a form acceptable to the Bank as being authorized to make such requests.
\nThe Bank 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 risk
\nof, 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 extent
\nby any failure by the Bank to receive written confirmation of any telephonic or
\nfacsimile notice or the receipt by the Bank of a confirmation which is at
\nvariance with the terms understood by the Bank to be contained in the telephonic
\nor facsimile notice.<\/p>\n
9.11 Headings; Interpretation. Article, section, and paragraph headings
\nare for reference only and shall not affect the interpretation or meaning of any
\nprovisions of this Agreement. The meaning of defined terms shall be equally
\napplicable to the singular and plural forms of the defined terms. The words
\n“hereof”, “herein”, “hereunder” and words of similar import when used in this
\nAgreement shall refer to this Agreement as a whole and not to any particular
\nprovision of this Agreement; and subsection, section, schedule and exhibit
\nreferences are to this Agreement unless otherwise specified. The term
\n“including” is not limiting and means “including without limitation.” In the
\ncomputation of periods of time from a specified date to a later specified date,
\nthe word “from” means “from and including”; the words “to” and “until” each mean
\n“to but excluding”, and the word “through” means “to and including.”<\/p>\n
9.12 Severability. The illegality or unenforceability of any provision
\nof this Agreement or any instrument or agreement required hereunder shall not in
\nany way affect or impair the legality or enforceability of the remaining
\nprovisions of this Agreement or any instrument or agreement required hereunder.<\/p>\n
21
\n 26
\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, shall
\nbe deemed an original but all such counterparts shall constitute but one and the
\nsame agreement.<\/p>\n
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
\nof the day and year first above written.<\/p>\n
DIONEX CORPORATION<\/p>\n
By: \/s\/ Michael Pope
\n ————————————-
\n Typed Name: MICHAEL POPE
\n —————————–
\n Title: Vice President
\n ———————————-<\/p>\n
By:
\n ————————————-
\n Typed Name:
\n —————————–
\n Title:
\n ———————————-<\/p>\n
Address where notices to
\n Borrower are to be sent:<\/p>\n
1228 Titan Way
\n Sunnyvale, California 94086<\/p>\n
BANK OF AMERICA NATIONAL TRUST
\n AND SAVINGS ASSOCIATION<\/p>\n
By: \/s\/ John Cinderey
\n ————————————-
\n Typed Name: JOHN CINDEREY
\n —————————–
\n Title: Managing Director
\n ———————————-<\/p>\n
Address where notices to
\n Bank are to be sent:<\/p>\n
530 Lytton Avenue
\n Palo Alto, CA 94301
\n Attn: The Mid-Cap Technology
\n Group (#3537)<\/p>\n
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