{"id":41355,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/waiver-agreement-storage-technology-corp-and-bank-of-america.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"waiver-agreement-storage-technology-corp-and-bank-of-america","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/waiver-agreement-storage-technology-corp-and-bank-of-america.html","title":{"rendered":"Waiver Agreement &#8211; Storage Technology Corp. and Bank of America NA"},"content":{"rendered":"<pre>                                WAIVER AGREEMENT\n\n                  This WAIVER AGREEMENT (this \"Waiver\") dated as of April 25,\n2001, is entered into among Storage Technology Corporation, a Delaware\ncorporation (the \"Company\"), the several financial institutions from time to\ntime party to the Credit Agreement referred to below (individually, a \"Bank\";\ncollectively, the \"Banks\"), and Bank of America, N.A., as swingline bank, letter\nof credit issuing bank and sole administrative agent for the Banks.\n\n                  WHEREAS, the Company, the Banks and the Agent entered into an\nAmended and Restated Credit Agreement dated as of January 13, 2000 (the \"Credit\nAgreement\"); and\n\n                  WHEREAS, the Company has requested that the Required Banks\nagree to certain waivers under the Credit Agreement, and the Required Banks have\nagreed to such request, subject to the terms and conditions of this Waiver;\n\n                  NOW, THEREFORE, the parties hereto agree as follows:\n\n1.       Definitions; References; Interpretation.\n         ---------------------------------------\n\n(a) Unless otherwise specifically defined herein, each term used herein\n(including in the Recitals hereof) which is defined in the Credit Agreement\nshall have the meaning assigned to such term in the Credit Agreement.\n\n(b)      The rules of interpretation set forth in Section 1.2 of the Credit\nAgreement shall be applicable to this Waiver.\n\n2. Waiver. The Required Banks hereby waive compliance by the Company with\nsubsection 7.13(b) of the Credit Agreement (captioned \"Consolidated Net Income\")\nfor the fiscal quarter ended March 30, 2001; provided that Consolidated Net Loss\nand Consolidated Operating Loss for such fiscal quarter ended March 30, 2001,\nare not greater than $5,000,000 and $7,000,000, respectively.\n\n3.       Representations and Warranties.  The Company hereby represents and\n         ------------------------------\nwarrants to the Agent and the Banks as follows:\n\n(a)      After giving effect to the waiver contemplated in Section 2 above, no\nDefault or Event of Default has occurred and is continuing.\n\n(b) The execution, delivery and performance by the Company of this Waiver have\nbeen duly authorized by all necessary corporate and other action and do not and\nwill not require any registration with, consent or approval of, or notice to or\naction by, any Person (including any Governmental Authority) in order to be\neffective and enforceable.\n\n(c) This Waiver constitutes the legal, valid and binding obligations of the\nCompany, enforceable against it in accordance with its terms.\n\n(d) All representations and warranties of the Company contained in the Credit\nAgreement are true and correct (except to the extent such representations and\nwarranties expressly refer to an earlier date, in which case they shall be true\nand correct as of such earlier date and except that this subsection (d) shall be\ndeemed instead to refer to the last day of the most recent year and quarter for\nwhich financial statements have then been delivered in respect of the\nrepresentation and warranty made in subsection 6.11(a) of the Credit Agreement\nand to take into account any amendments to the Schedules to the Credit Agreement\nand other disclosures made in writing by the Company to the Agent and the Banks\nafter the Closing Date and approved by the Agent and the Required Banks).\n\n(e) The Company is entering into this Waiver on the basis of its own\ninvestigation and for its own reasons, without reliance upon the Agent and the\nBanks or any other Person.\n\n(f) The Company's obligations under the Credit Agreement and under the other\nLoan Documents are not subject to any defense, counterclaim, set-off, right of\nrecoupment, abatement or other claim.\n\n4.       Conditions of Effectiveness.\n         ---------------------------\n\n(a) The effectiveness of Section 2 of this Waiver shall be subject to the\nsatisfaction of each of the following conditions precedent:\n\n(1) The Agent shall have received from the Company and the Required Banks a duly\nexecuted original (or, if elected by the Agent, an executed facsimile copy) of\nthis Waiver.\n\n(2) The Agent shall have received all other documents it or any of the Required\nBanks may reasonably request relating to any matters relevant hereto, all in\nform and substance satisfactory to the Agent and each such Bank.\n\n(3)      The representations and warranties in Section 3 of this Waiver shall be\ntrue and correct on and as of the date hereof.\n\n(4) The Agent shall have acknowledged a duly executed original counterpart (or,\nif elected by the Agent, an executed facsimile copy counterpart) of this Waiver\nsigned by the Company and the Required Banks.\n\n(b) The Agent shall have received evidence of payment by the Company of all fees\nreferenced in Section 5 of this Waiver.\n\n(c) For purposes of determining compliance with the conditions specified in this\nSection 4, each Bank that has executed this Waiver shall be deemed to have\nconsented to, approved or accepted, or to be satisfied with, each document or\nother matter either sent, or made available for inspection, by the Agent to such\nBank for consent, approval, acceptance or satisfaction, or required thereunder\nto be consented to or approved by or acceptable or satisfactory to such Bank.\n\n(d) Except as expressly waived pursuant hereto, the Credit Agreement and the\nother Loan Documents shall remain unchanged and in full force and effect and are\nhereby ratified and confirmed in all respects.\n\n(e)      The Agent will notify the Company and the Banks of the effectiveness of\nthis Waiver.\n\n5. Fees. Contingent upon the satisfaction of the conditions precedent set forth\nin subsections 4(a)(1), (2) and (4) above, the Company shall pay to the Agent\nfor the account of each Bank that returns to the Agent a signed counterpart of\nthis Waiver on or prior to the date hereof a fee equal to 0.10% of the\nCommitment of such Bank.\n\n6.       Miscellaneous.\n         --------------\n\n(a) The Company acknowledges and agrees that the execution and delivery by the\nAgent and the Required Banks of this Waiver shall not be deemed to create a\ncourse of dealing or an obligation to execute similar waivers or amendments\nunder the same or similar circumstances in the future.\n\n(b) This Waiver shall be binding upon and inure to the benefit of the parties\nhereto and to the Credit Agreement and their respective successors and assigns.\n\n(c) This Waiver shall be governed by and construed in accordance with the law of\nthe State of California, provided that the Agent and the Banks shall retain all\nrights arising under Federal law.\n\n(d) This Waiver may be executed in any number of counterparts, each of which\nshall be deemed an original, but all such counterparts together shall constitute\nbut one and the same instrument. Each of the parties hereto understands and\nagrees that this document (and any other document required herein) may be\ndelivered by any party thereto either in the form of an executed original or an\nexecuted original sent by facsimile transmission to be followed promptly by\nmailing of a hard copy original, and that receipt by the Agent of a facsimile\ntransmitted document purportedly bearing the signature of a Bank or the Company\nshall bind such Bank or the Company, respectively, with the same force and\neffect as the delivery of a hard copy original. Any failure by the Agent to\nreceive the hard copy executed original of such document shall not diminish the\nbinding effect of receipt of the facsimile transmitted executed original of such\ndocument of the party whose hard copy page was not received by the Agent.\n\n(e) This Waiver contains the entire and exclusive agreement of the parties\nhereto with reference to the matters discussed herein. This Waiver supersedes\nall prior drafts and communications with respect hereto. This Waiver may not be\namended except in accordance with the provisions of Section 11.1 of the Credit\nAgreement.\n\n(f) If any term or provision of this Waiver shall be deemed prohibited by or\ninvalid under any applicable law, such provision shall be invalidated without\naffecting the remaining provisions of this Waiver, the Credit Agreement or the\nother Loan Documents.\n\n(g) The Company agrees to pay or reimburse BofA (including in its capacity as\nAgent), upon demand, for all reasonable costs and expenses (including reasonable\nAttorney Costs) incurred by BofA (including in its capacity as Agent) in\nconnection with the development, preparation, negotiation, execution and\ndelivery of this Waiver.\n\n(h) This Waiver shall constitute a \"Loan Document\" under and for all purposes of\nthe Credit Agreement and the other Loan Documents.\n\n                              [Signatures follow.]\n\n\n\n\n\n\n                  IN WITNESS WHEREOF, the parties hereto have caused this Waiver\nto be duly executed and delivered in San Francisco, California by their proper\nand duly authorized officers as of the day and year first above written.\n\n\n\n                                    STORAGE TECHNOLOGY CORPORATION\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    BANK OF AMERICA, N.A., as Agent, as a Bank,\n                                    as Issuing Bank and as Swingline Bank\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    BANK ONE, NA\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    FLEET NATIONAL BANK\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    KEYBANK NATIONAL ASSOCIATION\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    THE ROYAL BANK OF CANADA\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    THE BANK OF NOVA SCOTIA\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    SUMITOMO MITSUI BANKING CORPORATION\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    U.S. BANK NATIONAL ASSOCIATION\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n                                    BANK OF MONTREAL\n\n\n                                    By:  ___________________________________\n                                    Name:\n                                    Title:\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,8959],"corporate_contracts_industries":[9415,9508],"corporate_contracts_types":[9561,9560],"class_list":["post-41355","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-storage-technology-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-technology__hardware","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\/41355","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=41355"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=41355"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=41355"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=41355"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}