| Preview
Full Doc
 | 2001 |
Credit Agreement
Credit Agreement (173K)
Doc #114540: Click preview link for longer preview.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 27, 2000 is by and among MATRIX
BANCORP, INC., a Colorado corporation (the "Borrower"), the lenders which are
signatories hereto (individually, a "Lender" and, collectively, the "Lenders")
and U.S. BANK NATIONAL ASSOCIATION, a national banking association, one of the
Lenders, as agent for the Lenders (in such capacity, the "Agent").
The Borrower and the Banks agree as follows:
ARTICLE 1
DEFINITIONS AND ACCOUNTING TERMS
Section 1.1 Defined Terms. As used in this Agreement the following terms
shall have the following respective meanings (and such meanings shall be equally
applicable to both the singular and plural form of the terms defined, as the
context may require):
"Adjusted Eurodollar Rate": On any date of determination, the rate (rounded
upward, if necessary, to the next higher one hundredth of one percent)
determined by dividing the Eurodollar Rate for such date by 1.00 minus the
Eurodollar Reserve Percentage.
"Advance": Any portion of the outstanding Revolving Loans or Term Loans by
a Lender as to which one of the available interest rate options and, if
pertinent, an Interest Period, is applicable. An Advance may be a Eurodollar
Rate Advance or a Reference Rate Advance.
"Affiliate": When used with reference to any Person, (a) each Person that,
directly or indirectly, controls, is controlled by or is under common control
with, the Person referred to, (b) each Person which beneficially owns or holds,
directly or indirectly, five percent or more of any class of voting stock of the
Person referred to (or if the Person referred to is not a corporation, five
percent or more of the equity interest), (c) each Person, five percent or more
of the voting stock (or if such Person is not a corporation, five percent or
more of the equity interest) of which is beneficially owned or held, directly or
indirectly, by the Person referred to, and (d) each of such Person's officers,
directors, joint venturers and partners. The term control (including the terms
"controlled by" and "under common control with") means the possession, directly,
of the power to direct or cause the direction of the management and policies of
the Person in question.
"Agent": As defined in the opening paragraph hereof.
"Aggregate Revolving Commitment Amounts": As of any date, the sum of the
Revolving Commitment Amounts of all the Lenders.
"Aggregate Term Commitment Amounts": As of any date, the sum of the Term
Loan Commitment Amounts of all the Lenders.
{PAGE}
"Applicable Lending Office": For each Lender and for each type of Advance,
the office of such Lender identified as such Lender's Applicable Lending Office
on the signature pages hereof or such other domestic or foreign office of such
Lender (or of an Affiliate of such Lender) as such Lender may specify from time
to time, by notice given pursuant to Section 9.4, to the Agent and the Borrower
as the office by which its Advances of such type are to be made and maintained.
"Applicable Margin": The Applicable Margin for Reference Rate Advances in
effect at all times shall be zero percent (0.00%). The Applicable Margin for
Eurodollar Rate Advances in effect at all times shall be two and
sixty-five-hundredths percent (2.65%).
"Bankers Blanket Bond": The bond or bonds, and any renewals, extensions, or
modifications of them, issued with respect to losses incurred by Matrix Bank,
including, without limitation, all bonds represented by Bankers Blanket Bond,
Standard Form No. 24, with attached riders, as revised, and Bank Employee
Dishonesty Blanket Bond, Standard Form No. 28, Surety Association of America.
"Board": The Board of Governors of the Federal Reserve System or any
successor thereto.
"Borrower": As defined in the opening paragraph hereof.
"Borrower Loan Documents": This Agreement, the Notes and any of the
Security Documents to be executed by the Borrower.
"Borrowing": Any amount disbursed (a) by any Lender to Borrower under the
Loan Documents as an original disbursement of funds, a renewal, extension, or
continuation of an amount outstanding, or (b) by Agent or any Lender in
accordance with, and to satisfy a Company's obligations under, any Loan
Document.
"Business Day": Any day (other than a Saturday, Sunday or legal holiday in
the State of Minnesota) on which lenders are permitted to be open in
Minneapolis, Minnesota.
"Capitalized Lease Obligations": As to any Person, the obligations of such
Person to pay rent or other amounts under a lease of (or other agreement
conveying the right to use) real or personal property which obligations are
required to be classified and accounted for as a capital lease on a balance
sheet of such Person under GAAP (including Statement of Financial Accounting
114540
|
SAA
As referenced in this Credit Agreement:
Surety Association of America. – with attached riders, as revised, and Bank Employee
Dishonesty Blanket Bond, Standard Form No. 28, Surety Association of America.
"Board": The Board of Governors of the Federal Reserve System or any
successor thereto.
"
_____________
dt 75956
;
 Matrix
As referenced in this Credit Agreement:
MATRIX BANCORP INC –
MATRIX BANCORP INC
_____________
MATRIX
BANCORP, INC. –
EX-10.15
3
EXECUTION COPY
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 27, 2000 is by and among MATRIX
BANCORP, INC. , a Colorado corporation (the "Borrower"), the lenders which are
signatories hereto (individually, a "Lender" and, collectively, the "Lenders")
and U.S. BANK NATIONAL ASSOCIATION, a national banking association, one
_____________
MATRIX BANCORP, INC. – such Lender.
[Remainder of this page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
MATRIX BANCORP, INC.
By /s/
Guy A. Gibson
Title President
Address for Borrower:
1380 Lawrence Street, Suite 1400
Denver, CO 80204
U.S. BANK NATIONAL ASSOCIATION,
As Agent and a Lender
By /
_____________
dt 1849909
;
Matrix
As referenced in this Credit Agreement:
MATRIX
BANCORP, INC. – p class=MsoNormal>
{DOCUMENT}
{TYPE}EX-10.15
{SEQUENCE}3
EXECUTION COPY
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of December 27, 2000 is by and among MATRIX
BANCORP, INC. , a Colorado corporation (the "Borrower"), the lenders which are
signatories hereto (individually, a "Lender" and, collectively, the "Lenders")
and U.S. BANK NATIONAL ASSOCIATION, a national banking association, one
_____________
MATRIX BANCORP, INC. – such Lender.
[Remainder of this page intentionally left blank.]
{PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
MATRIX BANCORP, INC.
By /s/
Guy A. Gibson
Title President
Address for Borrower:
1380 Lawrence Street, Suite 1400
Denver, CO 80204
U.S. BANK NATIONAL ASSOCIATION,
As Agent and a Lender
By /
_____________
dt 1499028
;
|
U.S. Bank, NA
As referenced in this Credit Agreement:
U.S. BANK NATIONAL ASSOCIATION, – among MATRIX
BANCORP, INC., a Colorado corporation (the "Borrower"), the lenders which are
signatories hereto (individually, a "Lender" and, collectively, the "Lenders")
and U.S. BANK NATIONAL ASSOCIATION, a national banking association, one of the
Lenders, as agent for the Lenders (in such capacity, the "Agent").
The Borrower and the
_____________
U.S. Bank
National Association, – Corporation, an Arizona
corporation.
"Matrix Financial Loan Agreement": The Credit Agreement dated as of
September 29, 2000, between Matrix Financial, certain lenders, and U.S. Bank
National Association, as Agent for the Lenders, as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"Multiemployer Plan":
_____________
U.S. BANK NATIONAL ASSOCIATION, – above written.
MATRIX BANCORP, INC.
By /s/
Guy A. Gibson
Title President
Address for Borrower:
1380 Lawrence Street, Suite 1400
Denver, CO 80204
U.S. BANK NATIONAL ASSOCIATION,
As Agent and a Lender
By /s/
Mark A. Bagley
Title Vice President
In its individual corporate capacity
and as Agent
Address:
_____________
U.S. Bank National Association
– ASSOCIATION,
As Agent and a Lender
By /s/
Mark A. Bagley
Title Vice President
In its individual corporate capacity
and as Agent
Address:
U.S. Bank National Association
918 17th Street
Denver, CO 80202
ATTN: Mark A. Bagley
[Signature Page to Credit Agreement]
S - 1
_____________
dt 187680
;
 Dorsey & Whitney
As referenced in this Credit Agreement:
Dorsey & Whitney – or incurred by the Agent (including
filing and recording costs and fees and expenses of Dorsey & Whitney LLP,
counsel to the Agent) in connection with the negotiation, preparation, approval,
review, execution, delivery,
dt 35740
|
| Preview
Full Doc
| 2003 |
Credit Agreement [Amended and Restated]
Credit Agreement [Amended and Restated] (409K)
Doc #115846: Click preview link for longer preview.
$305,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 4, 2003
AMONG
TECHNICAL OLYMPIC USA, INC.
AS BORROWER
AND
THE LENDERS AND ISSUERS PARTY HERETO
AND
CITICORP NORTH AMERICA, INC.
AS ADMINISTRATIVE AGENT
FLEET NATIONAL BANK,
AS DOCUMENTATION AGENT
SALOMON SMITH BARNEY INC.
AS SOLE ARRANGER AND SOLE BOOK MANAGER
WEIL, GOTSHAL & MANGES LLP
767 FIFTH AVENUE
NEW YORK, NEW YORK 10153-0119
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
Article I Definitions, Interpretation And Accounting Terms............................... 1
Section 1.1 Defined Terms......................................................... 1
Section 1.2 Computation of Time Periods........................................... 31
Section 1.3 Accounting Terms and Principles....................................... 31
Section 1.4 Certain Terms......................................................... 31
Article II The Facility................................................................... 32
Section 2.1 The Revolving Credit Commitments...................................... 32
Section 2.2 Borrowing Procedures.................................................. 32
Section 2.3 Swing Loans........................................................... 33
Section 2.4 Letters of Credit..................................................... 35
Section 2.5 Reduction and Termination of the Revolving Credit Commitments......... 40
Section 2.6 Repayment of Loans.................................................... 40
Section 2.7 Evidence of Debt...................................................... 40
Section 2.8 Optional Prepayments.................................................. 41
Section 2.9 Mandatory Prepayments................................................. 41
Section 2.10 Interest.............................................................. 42
Section 2.11 Conversion/Continuation Option........................................ 43
Section 2.12 Fees.................................................................. 44
Section 2.13 Payments and Computations............................................. 45
Section 2.14 Special Provisions Governing Eurodollar Rate Loans.................... 48
Section 2.15 Capital Adequacy...................................................... 49
Section 2.16 Taxes................................................................. 50
Section 2.17 Substitution of Lenders............................................... 51
Section 2.18 Facility Extension.................................................... 52
Section 2.19 Facility Increase..................................................... 54
Article III Conditions To Loans And Letters Of Credit...................................... 55
Section 3.1 Conditions Precedent to the Effectiveness of this Agreement .......... 55
Section 3.2 Conditions Precedent to Each Loan and Letter of Credit................ 57
Section 3.3 Determinations of Initial Borrowing Conditions........................ 58
Article IV Representations and Warranties................................................. 58
Section 4.1 Corporate Existence; Compliance with Law.............................. 58
{/TABLE}
i
{PAGE}
TABLE OF CONTENTS
(CONTINUED)
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
Section 4.2 Corporate Power; Authorization; Enforceable Obligations............... 58
Section 4.3 Ownership of Borrower; Subsidiaries................................... 59
Section 4.4 Financial Statements.................................................. 60
Section 4.5 Material Adverse Change............................................... 61
Section 4.6 Solvency.............................................................. 61
Section 4.7 Litigation ........................................................... 61
Section 4.8 Taxes................................................................. 61
Section 4.9 Full Disclosure....................................................... 62
Section 4.10 Margin Regulations.................................................... 62
Section 4.11 No Burdensome Restrictions; No Defaults............................... 62
Section 4.12 Investment Company Act; Public Utility Holding Company Act............ 63
Section 4.13 Use of Proceeds....................................................... 63
Section 4.14 Insurance............................................................. 63
Section 4.15 Labor Matters......................................................... 63
Section 4.16 ERISA................................................................. 64
Section 4.17 Environmental Matters................................................. 64
Section 4.18 Intellectual Property................................................. 65
Section 4.19 Title; Real Property.................................................. 65
Section 4.20 Related Documents..................................................... 66
Section 4.21 Non-Guarantor Subsidiaries............................................ 67
Article V Financial Covenants............................................................ 67
Section 5.1 Consolidated Tangible Net Worth....................................... 67
Section 5.2 Maximum Total Indebtedness to Consolidated Tangible Net Worth Ratio... 67
Section 5.3 Land Bank Indebtedness to Consolidated Tangible Net Worth Ratio ...... 67
Section 5.4 Minimum Fixed Charge Coverage Ratio................................... 67
Section 5.5 Unsold Land to Consolidated Tangible Net Worth........................ 67
Section 5.6 Unsold Units to Units Closed.......................................... 68
Section 5.7 Unimproved Land to Consolidated Tangible Net Worth.................... 68
Section 5.8 Model Homes to Units Closed........................................... 68
Article VI Reporting Covenants............................................................ 68
Section 6.1 Financial Statements.................................................. 68
{/TABLE}
ii
{PAGE}
TABLE OF CONTENTS
(CONTINUED)
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
Section 6.2 Default Notices....................................................... 70
Section 6.3 Litigation............................................................ 70
Section 6.4 Notices under Related Documents....................................... 70
Section 6.5 SEC Filings; Press Releases........................................... 70
Section 6.6 Labor Relations....................................................... 70
Section 6.7 Tax Returns........................................................... 71
Section 6.8 Insurance............................................................. 71
Section 6.9 ERISA Matters......................................................... 71
Section 6.10 Environmental Matters................................................. 71
Section 6.11 Borrowing Base Determination.......................................... 72
Section 6.12 Material Contractual Obligations...................................... 73
Section 6.13 Other Information..................................................... 73
Article VII Affirmative Covenants.......................................................... 73
Section 7.1 Preservation of Corporate Existence, Etc.............................. 73
Section 7.2 Compliance with Laws, Etc............................................. 73
Section 7.3 Conduct of Business................................................... 73
Section 7.4 Payment of Taxes, Etc................................................. 73
Section 7.5 Maintenance of Insurance.............................................. 74
Section 7.6 Maintenance of Contractual Obligations................................ 74
Section 7.7 Transactions with Affiliates.......................................... 74
Section 7.8 Access................................................................ 74
Section 7.9 Keeping of Books...................................................... 75
Section 7.10 Maintenance of Properties, Etc........................................ 75
Section 7.11 Application of Proceeds............................................... 75
Section 7.12 Environmental......................................................... 75
Section 7.13 Additional Collateral and Guaranties.................................. 75
Section 7.14 Interest Rate Contracts............................................... 76
Section 7.15 Real Property......................................................... 76
Article VIII Negative Covenants............................................................. 77
Section 8.1 Indebtedness.......................................................... 77
Section 8.2 Liens, Etc............................................................ 78
Section 8.3 Investments........................................................... 79
{/TABLE}
iii
{PAGE}
TABLE OF CONTENTS
(CONTINUED)
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
Section 8.4 Sale of Assets........................................................ 80
Section 8.5 Restricted Payments................................................... 80
Section 8.6 Restriction on Fundamental Changes.................................... 81
Section 8.7 Change in Nature of Business.......................................... 82
Section 8.8 Transactions with Affiliates.......................................... 82
Section 8.9 Restrictions on Subsidiary Distributions; No New Negative Pledge...... 82
Section 8.10 Modification of Constituent Documents................................. 82
Section 8.11 Modification of Related Documents..................................... 83
Section 8.12 Modification of Other Indebtedness Agreements......................... 83
Section 8.13 Accounting Changes; Fiscal Year....................................... 83
Section 8.14 Margin Regulations.................................................... 83
Section 8.15 Operating Leases; Sale/Leasebacks..................................... 84
Section 8.16 Cancellation, Prepayment of Indebtedness.............................. 84
Section 8.17 No Speculative Transactions........................................... 84
Section 8.18 Compliance with ERISA................................................. 84
Section 8.19 Environmental......................................................... 85
Section 8.20 Acquisitions of Unentitled Land Prohibited............................ 85
Section 8.21 High-Rise Construction Prohibited..................................... 85
Article IX Events of Default.............................................................. 85
Section 9.1 Events of Default..................................................... 85
Section 9.2 Remedies.............................................................. 87
Section 9.3 Actions in Respect of Letters of Credit............................... 87
Section 9.4 Rescission............................................................ 88
Article X The Administrative Agent....................................................... 88
Section 10.1 Authorization and Action.............................................. 88
Section 10.2 Administrative Agent's Reliance, Etc.................................. 89
Section 10.3 The Administrative Agent Individually................................. 89
Section 10.4 Lender Credit Decision................................................ 90
Section 10.5 Indemnification....................................................... 90
Section 10.6 Successor Administrative Agent........................................ 90
Section 10.7 Concerning the Collateral and the Collateral Documents................ 91
{/TABLE}
iv
{PAGE}
TABLE OF CONTENTS
(CONTINUED)
{TABLE}
{CAPTION}
PAGE
----
{S} {C}
Section 10.8 Collateral Matters Relating to Related Obligations.................... 92
Article XI Miscellaneous.................................................................. 93
Section 11.1 Amendments, Waivers, Etc.............................................. 93
Section 11.2 Assignments and Participations........................................ 95
Section 11.3 Costs and Expenses.................................................... 98
Section 11.4 Indemnities........................................................... 99
Section 11.5 Limitation of Liability............................................... 100
Section 11.6 Right of Set-off...................................................... 100
Section 11.7 Sharing of Payments, Etc.............................................. 101
Section 11.8 Notices, Etc.......................................................... 101
Section 11.9 No Waiver; Remedies................................................... 103
Section 11.10 Binding Effect........................................................ 103
Section 11.11 Governing Law......................................................... 104
Section 11.12 Submission to Jurisdiction; Service of Process........................ 104
Section 11.13 Waiver of Jury Trial.................................................. 104
Section 11.14 Marshaling; Payments Set Aside........................................ 104
Section 11.15 Section Titles........................................................ 105
Section 11.16 Execution in Counterparts............................................. 105
Section 11.17 Entire Agreement...................................................... 105
Section 11.18 Confidentiality....................................................... 105
Section 11.19 Documents Evidence the Same Indebtedness.............................. 106
{/TABLE}
v
{PAGE}
TABLE OF CONTENTS
(CONTINUED)
SCHEDULES
Page
----
Schedule I - Revolving Credit Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule 1.1 - Refinanced Indebtedness
Schedule 4.2 - Consents
Schedule 4.3 - Ownership of Subsidiaries
Schedule 4.4 - Material Obligations
Schedule 4.7 - Litigation
Schedule 4.8 - Taxes
Schedule 4.14 - Insurance
Schedule 4.15 - Labor Matters
Schedule 4.16 - List of Plans
Schedule 4.17 - Environmental Matters
Schedule 4.19 - Real Property
Schedule 8.1 - Existing Indebtedness
Schedule 8.2 - Existing Liens
Schedule 8.3 - Existing Investments
Schedule 8.9 - Restrictions on Subsidiary Distributions
Schedule 8.10 - Dual Class Structure of Capital Stock
EXHIBITS
Exhibit A - Form of Assignment and Acceptance
Exhibit B - Form of Assumption Agreement
Exhibit C - Form of Revolving Credit Note
Exhibit D - Form of Notice of Borrowing
Exhibit E - Form of Letter of Credit Request
Exhibit F - Form of Borrowing Base Certificate
Exhibit G - Form of Notice of Conversion or Continuation
Exhibit H - Form of Opinion of Counsel for the Loan Parties
Exhibit I - Form of Affirmation of Liens and Guaranties
vi
{PAGE}
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 4, 2003,
among TECHNICAL OLYMPIC USA, INC., a Delaware corporation (the "Borrower"), the
Lenders (as defined below), the Issuers (as defined below), CITICORP NORTH
AMERICA, INC. ("CNAI"), as agent for the Lenders and the Issuers (in such
capacity and as agent for the Secured Parties under the Collateral Documents the
"Administrative Agent") and FLEET NATIONAL BANK, as documentation agent for the
lenders, amends and restates in its entirety the Original Credit Agreement (as
defined below).
WITNESSETH:
WHEREAS, pursuant to that certain Credit Agreement dated as of June 25,
2002 among the Borrower, the lenders and issuers party thereto, CNAI, as agent
for the lenders and issuers and as collateral agent, and Fleet National Bank, as
documentation agent (as amended through the date hereof, the "Original Credit
Agreement"), the Borrower requested that the Lenders and Issuers make available
for the purposes specified in the Original Credit Agreement a revolving credit
facility in the amount of $220,000,000, including a letter of credit facility in
the amount of $60,000,000;
WHEREAS, the Borrower has requested (i) an increase in the maximum
aggregate amount of the revolving credit facility to $305,000,000, (ii) an
increase in the maximum amount of the letter of credit facility to $80,000,000
and (iii) certain other changes to the covenants and other terms relating to the
Facility;
WHEREAS, the Lenders and Issuers are willing to amend and restate the
Original Credit Agreement in its entirety to make available to the Borrower such
increased revolving credit facility and letter of credit facility and to make
certain financial and other accommodations, upon the terms and subject to the
conditions set forth herein;
WHEREAS, it is the intent of the parties hereto (i) that this Agreement
does not constitute a novation of rights, obligations and liabilities of the
respective parties (including the Obligations) existing under the Original
Credit Agreement or evidence payment of all or any of such obligations and
liabilities and such rights, obligations and liabilities shall continue and
remain outstanding and (ii) that this Agreement amend and restate in its
entirety the Original Credit Agreement;
NOW, THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS
SECTION 1.1 DEFINED TERMS
As used in this Agreement, the following terms have the following
meanings (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):
1
{PAGE}
"2003 Projections" means those financial projections dated January 1,
2003 covering each Fiscal Quarter for the year 2003 inclusive, delivered to the
Lenders by the Borrower prior to the Effective Date.
"Account" has the meaning specified in the Pledge Agreement.
"Account Debtor" has the meaning specified in the Pledge Agreement.
"Adjusted EBITDA" means, with respect to any Person for any period, (a)
Consolidated Net Income of such Person for such period plus (b) the sum of, in
each case to the extent included in the calculation of such Consolidated Net
Income but without duplication, (i) any provision for income taxes, (ii)
Interest Expense, (iii) loss from extraordinary items, (iv) depreciation,
depletion and amortization of intangibles or financing or acquisition costs and
(v) all other non-cash charges and non-cash losses for such period, including
the amount of any compensation deduction as the result of any grant of Stock or
Stock Equivalents to employees, officers, directors or consultants minus (c) the
sum of, in each case to the extent included in the calculation of such
Consolidated Net Income but without duplication, (i) any credit for income tax,
(ii) interest income, (iii) gains from extraordinary items for such period, (iv)
any aggregate net gain (but not any aggregate net loss) from the sale, exchange
or other disposition of capital assets by such Person, (v) any other non-cash
gains or other items which have been added in determining Consolidated Net
Income, including any reversal of a change referred to in clause (b)(v) above by
reason of a decrease in the value of any Stock or Stock Equivalent, and (vi) one
time charges for expenses related to the Merger.
"Administrative Agent" has the meaning specified in the preamble to
this Agreement.
"Advance Rate" means (a) up to 50% in the case of Unimproved Land, (b)
up to 65% in the case of Land/Lots Under Development, (c) up to 65% in the case
of Finished Lots, (d) up to 80% in the case of Unsold Homes Under Construction,
(e) up to 80% in the case of Completed Unsold Homes Less Than 180 Days Since
Completion, (f) up to 50% in the case of Completed Unsold Homes Over 180 Days
Since Completion, (h) up to 90% in the case of Sold Homes, and (h) up to 90% in
the case of Escrow Proceeds Receivables.
"Affiliate" means, with respect to any Person, any other Person which,
directly or indirectly, controls, is controlled by or is under common control
with such Person, each officer, director, general partner or joint-venturer of
such Person, and each Person who is the beneficial owner of 10% or more of any
class of Voting Stock of such Person. For the purposes of this definition,
"control" means the possession of the power to direct or cause the direction of
management and policies of such Person, whether through the ownership of voting
securities, by contract or otherwise
"Agreement" means the Original Credit Agreement as amended and restated
by this Credit Agreement.
"Applicable Lending Office" means, with respect to each Lender, its
Domestic Lending Office in the case of a Base Rate Loan, and its Eurodollar
Lending Office in the case of a Eurodollar Rate Loan.
115846
|
Citibank
As referenced in this Credit Agreement [Amended and Restated]:
Citibank, N.A. – such date; or (e) any "change of
control" as defined in the Senior Note Indenture or Subordinated Note Indenture
has occurred.
"Citibank" means Citibank, N.A. , a national banking association.
"Closing Date" means June 26, 2002, the date on which Loans were first
made under the Original Credit
_____________
CITIBANK, N.A. – Vice President and Chief
Financial Officer
CITICORP NORTH AMERICA, INC.
as Administrative Agent
By: /s/ Michael Chlopak
-------------------------------------
Name: Michael Chlopak
Title: Vice President
CITIBANK, N.A.
as Issuer
By: /s/ Michael Chlopak
-------------------------------------
Name: Michael Chlopak
Title: Vice President
FLEET NATIONAL BANK
as Documentation Agent
By: /s/ JD Gilbreath
-------------------------------------
_____________
dt 145775
;
Citicorp
As referenced in this Credit Agreement [Amended and Restated]:
CITICORP NORTH AMERICA, – CREDIT AGREEMENT
DATED AS OF APRIL 4, 2003
AMONG
TECHNICAL OLYMPIC USA, INC.
AS BORROWER
AND
THE LENDERS AND ISSUERS PARTY HERETO
AND
CITICORP NORTH AMERICA, INC.
AS ADMINISTRATIVE AGENT
FLEET NATIONAL BANK,
AS DOCUMENTATION AGENT
SALOMON SMITH BARNEY INC.
AS SOLE ARRANGER AND SOLE BOOK MANAGER
WEIL,
_____________
CITICORP NORTH
AMERICA, – April 4, 2003,
among TECHNICAL OLYMPIC USA, INC., a Delaware corporation (the "Borrower"), the
Lenders (as defined below), the Issuers (as defined below), CITICORP NORTH
AMERICA, INC. ("CNAI"), as agent for the Lenders and the Issuers (in such
capacity and as agent for the Secured Parties under the
_____________
CITICORP NORTH AMERICA, – Schedule II (Applicable Lending Offices and Addresses for Notices); and
102
{PAGE}
(d) if to the Administrative Agent or the Swing Loan Lender:
CITICORP NORTH AMERICA, INC.
390 Greenwich Street
New York, New York 10013
Attention: David Bouton
Telecopy no: (212) 723-8380
E-Mail Address: david.bouton@
_____________
CITICORP NORTH AMERICA, – thereof.
107
{PAGE}
TECHNICAL OLYMPIC USA, INC.
as Borrower
By: /s/ Tommy McAden
-------------------------------------
Name: Tommy McAden
Title: Vice President and Chief
Financial Officer
CITICORP NORTH AMERICA, INC.
as Administrative Agent
By: /s/ Michael Chlopak
-------------------------------------
Name: Michael Chlopak
Title: Vice President
CITIBANK, N.A.
as Issuer
By: /s/ Michael
_____________
CITICORP NORTH AMERICA, – Michael Chlopak
Title: Vice President
FLEET NATIONAL BANK
as Documentation Agent
By: /s/ JD Gilbreath
-------------------------------------
Name: JD Gilbreath
Title: Group Manager
108
{PAGE}
CITICORP NORTH AMERICA, INC.
as Lender
By: /s/ Michael Chlopak
-------------------------------------
Name: Michael Chlopak
Title: Vice President
109
{PAGE}
WASHINGTON MUTUAL BANK, F.A.
as Lender
_____________
dt 158149
;
TOUSA
As referenced in this Credit Agreement [Amended and Restated]:
TECHNICAL OLYMPIC USA, – 305,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 4, 2003
AMONG
TECHNICAL OLYMPIC USA, INC.
AS BORROWER
AND
THE LENDERS AND ISSUERS PARTY HERETO
AND
CITICORP NORTH AMERICA,
TECHNICAL OLYMPIC USA, – vi
{PAGE}
This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of April 4, 2003,
among TECHNICAL OLYMPIC USA, INC., a Delaware corporation (the "Borrower"), the
Lenders (as defined below), the Issuers (as
TECHNICAL OLYMPIC USA, – and addressed
to the party to be notified as follows:
(a) if to the Borrower:
TECHNICAL OLYMPIC USA, INC.
4000 Hollywood Boulevard
Suite 500 N.
Hollywood, FL 33021
Attention: Tommy McAden, Chief
TECHNICAL OLYMPIC USA, – 954) 364-4010
E-Mail Address: tmcaden@tousa.com
101
{PAGE}
with a copy to:
TECHNICAL OLYMPIC USA, INC.
4000 Hollywood Boulevard,
Suite 500 N.
Hollywood, Florida 33021
Attention: Patricia M. Petersen,
TECHNICAL OLYMPIC USA, – force and effect during the term of this Agreement and any renewals
thereof.
107
{PAGE}
TECHNICAL OLYMPIC USA, INC.
as Borrower
By: /s/ Tommy McAden
-------------------------------------
Name: Tommy McAden
Title: Vice President and
dt 36509
;
|
BNY
As referenced in this Credit Agreement [Amended and Restated]:
Bank of New York – such rates reported by
certificate of deposit dealers to and published by
the Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the
basis of quotations for
Bank of New York, – is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a
dt 41447
;
Citibank
As referenced in this Credit Agreement [Amended and Restated]:
Citibank, N.A. – such date; or (e) any "change of
control" as defined in the Senior Note Indenture or Subordinated Note Indenture
has occurred.
"Citibank" means Citibank, N.A. , a national banking association.
"Closing Date" means June 26, 2002, the date on which Loans were first
made under the Original Credit
_____________
CITIBANK, N.A. – Vice President and Chief
Financial Officer
CITICORP NORTH AMERICA, INC.
as Administrative Agent
By: /s/ Michael Chlopak
-------------------------------------
Name: Michael Chlopak
Title: Vice President
CITIBANK, N.A.
as Issuer
By: /s/ Michael Chlopak
-------------------------------------
Name: Michael Chlopak
Title: Vice President
FLEET NATIONAL BANK
as Documentation Agent
By: /s/ JD Gilbreath
-------------------------------------
_____________
dt 145775
;
More... |
| Preview
Full Doc
| 2002 |
Loan Agreement
Loan Agreement (13K)
Doc #122572: Click preview link for longer preview.
LOAN AGREEMENT
(WEI GAO) NONG YIN JIE ZI (2001) NO. 01190
Borrower (full name): Weifang Fuhua Amusement Park Co. Ltd.
Lender (full name): Agricultural Bank of China, Weifang City Development
Zone Branch
Pursuant to the laws and regulations of the People's Republic of China
("PRC"), and on the basis of agreement reached through comprehensive
negotiations, Borrower and Lender enter into and consent to be bound by this
Loan Agreement.
ARTICLE 1. LENDER AGREES TO PROVIDE THE FOLLOWING LOAN TO BORROWER (THE "LOAN"):
1.1. Type of loan: short-term loan
1.2. Purpose of Loan: working capital
1.3. Loan Amount (full-form characters): RMB five hundred thousand
1.4. Loan and Repayment Terms:
(1) The following table sets forth the loan and repayment terms.
If there is not enough space in the following table, an additional sheet may be
attached to the Loan Agreement and shall constitute an integral part of the
Agreement.
122572
|
People's Bank
As referenced in this Loan Agreement:
People's Bank – short-term at the Loan Interest Rate specified herein; and in the medium-term
and long-term at a rate to be determined annually pursuant to rules set by the
People's Bank of China. Interest on the Loan Amount for the first year will
accrue at the Loan Interest Rate specified herein.
(2) Interest on the Loan Amount shall accrue on the
_____________
People's Bank – 05% per day times the
number of abuse days.
5.5. Compound interest is to be calculated and collected on any unpaid
interest according to the rules set by the People's Bank of China.
5.6. If the guarantor for the borrowed funds under this Loan Agreement
violates its duties under the Guaranty Agreement and fails to correct the
problem even after
_____________
dt 1465953
;
| Intra Asia Entertainment Corp
|
| Preview
Full Doc
| 2002 |
Loan Agreement
Loan Agreement (12K)
Doc #122573: Click preview link for longer preview.
LOAN AGREEMENT
(WEI NONG WAI) NONG YIN JIE ZI (2000) NO. 4781
Borrower (full name): Weifang Fuhua Amusement Park Co. Ltd.
Lender (full name): Business Department of Weifang City Branch, Agricultural
Bank of China
Pursuant to the laws and regulations of the People's Republic of China
("PRC"), and on the basis of agreement reached through comprehensive
negotiations, Borrower and Lender enter into and consent to be bound by this
Loan Agreement.
ARTICLE 1. LENDER AGREES TO PROVIDE THE FOLLOWING LOAN TO BORROWER (THE "LOAN"):
1.1. Type of loan: long-term
1.2. Purpose of Loan: working capital
1.3. Loan Amount (full-form characters): One hundred thousand US
dollars
1.4. Loan and Repayment Terms:
(1) The following table sets forth the loan and repayment terms.
If there is not enough space in the following table, an additional sheet may be
attached to the Loan Agreement and shall constitute an integral part of the
Agreement.
122573
|
People's Bank
As referenced in this Loan Agreement:
People's Bank – short-term at the Loan Interest Rate specified herein; and in the medium-term
and long-term at a rate to be determined annually pursuant to rules set by the
People's Bank of China. Interest on the Loan Amount for the first year will
accrue at the Loan Interest Rate specified herein.
(2) Interest on the Loan Amount shall accrue on the
_____________
People's Bank – 05% per day times the
number of abuse days.
5.5. Compound interest is to be calculated and collected on any unpaid
interest according to the rules set by the People's Bank of China.
5.6. If the guarantor for the borrowed funds under this Loan Agreement
violates its duties under the Guaranty Agreement and fails to correct the
problem even after
_____________
dt 1465954
;
| Intra Asia Entertainment Corp
|
| Preview
Full Doc
| 2002 |
Loan Agreement
Loan Agreement (12K)
Doc #122574: Click preview link for longer preview.
LOAN AGREEMENT
(WEI NONG WAI) NONG YIN JIE ZI (2001) NO. 321
Borrower (full name): Weifang Fuhua Amusement Park Co. Ltd.
Lender (full name): Business Department of Weifang City Branch,
Agricultural Bank of China
Pursuant to the laws and regulations of the People's Republic of China
("PRC"), and on the basis of agreement reached through comprehensive
negotiations, Borrower and Lender enter into and consent to be bound by this
Loan Agreement.
ARTICLE 1. LENDER AGREES TO PROVIDE THE FOLLOWING LOAN TO BORROWER (THE
"LOAN"):
1.1. Type of loan: long-term loan
1.2. Purpose of Loan: working capital
1.3. Loan Amount (full-form characters): Eight hundred thousand US
dollars exactly
1.4. Loan and Repayment Terms:
1.5. The following table sets forth the loan and repayment terms. If
there is not enough space in the following table, an additional sheet may be
attached to the Loan Agreement and shall constitute an integral part of the
Agreement.
122574
|
People's Bank
As referenced in this Loan Agreement:
People's Bank – short-term at the Loan Interest Rate specified herein;
and in the medium-term and long-term at a rate to be determined annually
pursuant to rules set by the People's Bank of China. Interest on the Loan Amount
for the first year will accrue at the Loan Interest Rate specified herein.
(2) Interest on the Loan Amount shall accrue on the
_____________
People's Bank – 05% per day times the
number of abuse days.
5.5. Compound interest is to be calculated and collected on any unpaid
interest according to the rules set by the People's Bank of China.
5.6. If the guarantor for the borrowed funds under this Loan Agreement
violates its duties under the Guaranty Agreement and fails to correct the
problem even after
_____________
dt 1465955
;
| Intra Asia Entertainment Corp
|
| Preview
Full Doc
| 2002 |
Working Capital Bank Loan
Working Capital Bank Loan (18K)
Doc #129590: Click preview link for longer preview.
WORKING CAPITAL BANK LOAN
Borrower (Party A): Dongguan Kwan Hong Electronics Co. Ltd.
Residence (Address): 2nd Industrial Zone, Siu Bin, Cheung On, Dongguan
Legal Representative: Tam Man Chi
Lender (Party B): Industrial and Commercial Bank of China
Dongguan City Cheung On Branch
Residence (Address): No. 13 Cheung Chung Road, Cheung On Town
Legal Representative
(Responsible Person): Law Lok Yin
{PAGE}
TABLE OF CONTENTS
{TABLE}
{S} {C}
Item No. 1 Kind of Loan
Item No. 2 Purpose of Loan
Item No. 3 Amount and Period of Loan
Item No. 4 Loan Interest Rate and Interest
Item No. 5 Source of Repayment of Loan and Repayment Method
Item No. 6 Guarantee
Item No. 7 Rights and Obligations of Both Parties
Item No. 8 Obligations under Breach of Contract
Item No. 9 Effectiveness, Alteration, Abandonment and Termination of
Contract
Item No. 10 Solution for Dispute
Item No. 11 Other Matters
Item No. 12 Appendix
{/TABLE}
{PAGE}
Pursuant to the need under Item 2.1, Party A applies for a loan from
Party B. Party B agrees to lend a loan to Party A. In accordance with "Contract
Law", "General Guidelines of Loan" and other relevant laws and regulations,
Party A and Party B agree through negotiations to state clearly hereunder the
rights and obligations of both parties, and sign this contract.
Item No. 1 Kind of Loan
1.1 Loan under this contract is (short term) working capital loan.
Item No. 2 Purpose of Loan
2.1 Purpose of loan under this contract is: working capital.
2.2 Without the written consent of Party B, Party A is not allowed to change the
purpose of loan stated in this contract.
Item No. 3 Amount and Period of Loan
129590
|
People's Bank
As referenced in this Working Capital Bank Loan:
People's Bank – 20th on each month. Upon the
expiry date of the loan, interest should be cleared with the principal.
{PAGE}
4.2 In the course of this contract period, if the People's Bank of China adjusts
the loan interest rate, which if applicable to the loan under this contract,
Party B, according to the regulations, has the right to calculate the interest
based
_____________
dt 1465957
;
Dongguan Kwan Hong Electronics Co. Ltd.;
| Industrial and Commercial Bank of China;
Deswell Industries Inc.
|
| Preview
Full Doc
| 2003 |
Reimbursement Agreement
Reimbursement Agreement (79K)
Doc #152457: Click preview link for longer preview.
REIMBURSEMENT AGREEMENT
This REIMBURSEMENT AGREEMENT, dated as of December 27, 2002 (this
"Agreement"), is entered into by and between DSL.NET, INC., a Delaware
corporation ("Obligor"), the guarantors identified on the signature pages hereof
(collectively, the "Guarantors" and each a "Guarantor") and VANTAGEPOINT VENTURE
PARTNERS III (Q), L.P., a Delaware limited partnership as the administrative
agent for the Guarantors ("Agent").
RECITALS
--------
A. Obligor has requested that the Guarantors cause to be issued, and
subject to the terms and condition of this Agreement, the
Guarantors have agreed to be issued, Guaranties (collectively, as
amended and in effect from time to time, the "Guaranties" and each
a "Guaranty") in an aggregate amount up to Six Million Seven
Hundred Thirty Thousand Dollars ($6,730,000) to support certain
obligations of Obligor, under a Revolving Credit and Term Loan
Agreement, dated as of December 13, 2002 (as amended and in effect
from time to time, the "Credit Agreement"), between Obligor and
Fleet National Bank ("Bank").
B. In order to induce Guarantors to issue the Guaranties, Obligor has
agreed to enter into this Agreement.
C. The obligations under this Agreement are secured by a Security
Agreement, dated the date hereof, executed by Obligor and certain
of its Subsidiaries in favor of Agent for itself and the benefit
of the Guarantors (as amended and in effect from time to time, the
"Security Agreement"). The obligations under this Agreement have
been guarantied by certain of the Subsidiaries of Obligor (each a
"Subsidiary Guarantor") pursuant to a Subsidiary Guaranty, dated
as of the date hereof (as amended and in effect from time to time,
the "Subsidiary Guaranty")
D. Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings set forth in Section 6 hereof.
AGREEMENT
---------
NOW, THEREFORE, in consideration of the above recitals and for other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Obligor hereby agrees with Guarantors and Agent as follows:
1. REIMBURSEMENT. (a) If Guarantors shall at any time or from time to
time be required to make any payment (i) under the Guaranties for any Drawn
Amounts, or (ii) in payment of a Guaranty Expense Amount, then Agent, at the
direction of Required Guarantors (provided, that if the Columbia Entities desire
to take an enforcement action that Required Guarantors have not consented to,
the Agent shall take such enforcement action as the Columbia Entities direct the
Agent to take, provided further, that Agent shall not take such enforcement
action until the earlier of (A) the 120th day after receipt by Agent of written
notice of such enforcement action from the Columbia Entities or (B) such time as
the Required Guarantors have provided their consent to such enforcement
actions), may give Obligor written notice of any such payments and Obligor shall
reimburse Agent within two (2) business days of receipt of such written notice
an amount equal to such Drawn Amounts and/or Guaranty Expense Amount, as
applicable.
152457
|
Avaya
As referenced in this Reimbursement Agreement:
/Avaya, Inc – Jr.
--------------------------------------------
Title: Officer
--------------------------------------------
{PAGE}
Schedule 1
----------
Existing Indebtedness:
Type Creditor Amount
---- -------- -----------
Capital Lease Comdisco, Inc. $ 194,978
Capital Lease Copper Mountain Networks, Inc. $ 4,098,813
Capital Lease Lucent Technologies/Avaya, Inc . $ 295,546
Capital Lease Insight Technologies/Verserv, Inc. $ 35,187
Capital Lease Other $ 30,482
Letter of Credit People's Bank #SB-1199 $ 406,666
Letter of Credit People'
_____________
dt 1545423
;
Copper Mountain
As referenced in this Reimbursement Agreement:
Copper Mountain Networks, Inc – Manager
By: /s/ Richard M. Burnes, Jr.
--------------------------------------------
Name: Richard M. Burnes, Jr.
--------------------------------------------
Title: Officer
--------------------------------------------
{PAGE}
Schedule 1
----------
Existing Indebtedness:
Type Creditor Amount
---- -------- -----------
Capital Lease Comdisco, Inc. $ 194,978
Capital Lease Copper Mountain Networks, Inc . $ 4,098,813
Capital Lease Lucent Technologies/Avaya, Inc. $ 295,546
Capital Lease Insight Technologies/Verserv, Inc. $ 35,187
Capital Lease Other $ 30,482
Letter of Credit People's
_____________
dt 1419930
;
DSL.net
As referenced in this Reimbursement Agreement:
DSL.NET, INC – TEXT}
EXHIBIT 10.22
-------------
REIMBURSEMENT AGREEMENT
This REIMBURSEMENT AGREEMENT, dated as of December 27, 2002 (this
"Agreement"), is entered into by and between DSL.NET, INC ., a Delaware
corporation ("Obligor"), the guarantors identified on the signature pages hereof
(collectively, the "Guarantors" and each a "Guarantor") and VANTAGEPOINT VENTURE
_____________
DSL.NET, INC – PAGE}
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first written above.
DSL.NET, INC .,
AS OBLIGOR
By: /s/ David F. Struwas
------------------------------
Name: David F. Struwas
----------------------------
Title: Chief Executive Officer
---------------------------
AGREED & ACCEPTED:
VANTAGEPOINT VENTURE PARTNERS III (Q),
_____________
dt 276284
;
|
Fleet National
As referenced in this Reimbursement Agreement:
Fleet National Bank – Loan
Agreement, dated as of December 13, 2002 (as amended and in effect
from time to time, the "Credit Agreement"), between Obligor and
Fleet National Bank ("Bank").
B. In order to induce Guarantors to issue the Guaranties, Obligor has
agreed to enter into this Agreement.
C. The obligations
_____________
dt 103941
;
People's Bank
As referenced in this Reimbursement Agreement:
People's Bank – Mountain Networks, Inc. $ 4,098,813
Capital Lease Lucent Technologies/Avaya, Inc. $ 295,546
Capital Lease Insight Technologies/Verserv, Inc. $ 35,187
Capital Lease Other $ 30,482
Letter of Credit People's Bank #SB-1199 $ 406,666
Letter of Credit People's Bank #SB-1187 $ 194,031
Letter of Credit People's Bank #SB-1222 $ 166,000
Letter of Credit People's
_____________
People's Bank – Avaya, Inc. $ 295,546
Capital Lease Insight Technologies/Verserv, Inc. $ 35,187
Capital Lease Other $ 30,482
Letter of Credit People's Bank #SB-1199 $ 406,666
Letter of Credit People's Bank #SB-1187 $ 194,031
Letter of Credit People's Bank #SB-1222 $ 166,000
Letter of Credit People's Bank #SB-1240 $ 253,500
{PAGE}
Schedule 2
----------
MAXIMUM PRINCIPAL
_____________
People's Bank – 35,187
Capital Lease Other $ 30,482
Letter of Credit People's Bank #SB-1199 $ 406,666
Letter of Credit People's Bank #SB-1187 $ 194,031
Letter of Credit People's Bank #SB-1222 $ 166,000
Letter of Credit People's Bank #SB-1240 $ 253,500
{PAGE}
Schedule 2
----------
MAXIMUM PRINCIPAL
GUARANTOR AMOUNT OF GUARANTY
--------- ------------------
VantagePoint Venture Partners III (Q), LP $
_____________
People's Bank – People's Bank #SB-1199 $ 406,666
Letter of Credit People's Bank #SB-1187 $ 194,031
Letter of Credit People's Bank #SB-1222 $ 166,000
Letter of Credit People's Bank #SB-1240 $ 253,500
{PAGE}
Schedule 2
----------
MAXIMUM PRINCIPAL
GUARANTOR AMOUNT OF GUARANTY
--------- ------------------
VantagePoint Venture Partners III (Q), LP $5,000,000.00
Columbia Capital Equity Partners II (QP),
_____________
dt 1465961
;
More... |
| Preview
Full Doc
| 2003 |
Reimbursement Agreement
Reimbursement Agreement (79K)
Doc #153231: Click preview link for longer preview.
REIMBURSEMENT AGREEMENT
This REIMBURSEMENT AGREEMENT, dated as of December 27, 2002 (this
"AGREEMENT"), is entered into by and between DSL.NET, INC., a Delaware
corporation ("OBLIGOR"), the guarantors identified on the signature pages hereof
(collectively, the "GUARANTORS" and each a "GUARANTOR") and VANTAGEPOINT VENTURE
PARTNERS III (Q), L.P., a Delaware limited partnership as the administrative
agent for the Guarantors ("AGENT").
RECITALS
A. Obligor has requested that the Guarantors cause to be issued, and
subject to the terms and condition of this Agreement, the Guarantors
have agreed to be issued, Guaranties (collectively, as amended and in
effect from time to time, the "GUARANTIES" and each a "GUARANTY") in
an aggregate amount up to Six Million Seven Hundred Thirty Thousand
Dollars ($6,730,000) to support certain obligations of Obligor, under
a Revolving Credit and Term Loan Agreement, dated as of December 13,
2002 (as amended and in effect from time to time, the "CREDIT
AGREEMENT"), between Obligor and Fleet National Bank ("BANK").
B. In order to induce Guarantors to issue the Guaranties, Obligor has
agreed to enter into this Agreement.
C. The obligations under this Agreement are secured by a Security
Agreement, dated the date hereof, executed by Obligor and certain of
its Subsidiaries in favor of Agent for itself and the benefit of the
Guarantors (as amended and in effect from time to time, the "SECURITY
AGREEMENT"). The obligations under this Agreement have been guarantied
by certain of the Subsidiaries of Obligor (each a "SUBSIDIARY
GUARANTOR") pursuant to a Subsidiary Guaranty, dated as of the date
hereof (as amended and in effect from time to time, the "SUBSIDIARY
GUARANTY")
D. Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings set forth in Section 6 hereof.
AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and for other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Obligor hereby agrees with Guarantors and Agent as follows:
1. REIMBURSEMENT. (a) If Guarantors shall at any time or from time to
time be required to make any payment (i) under the Guaranties for any Drawn
Amounts, or (ii) in payment of a Guaranty Expense Amount, then Agent, at the
direction of Required Guarantors (provided, that if the Columbia Entities desire
to take an enforcement action that Required Guarantors have not consented to,
the Agent shall take such enforcement action as the Columbia Entities direct the
Agent to take, provided further, that Agent shall not take such enforcement
action until the earlier of (A) the 120th day after receipt by Agent of written
notice of such enforcement action from the Columbia Entities or (B) such time as
the Required Guarantors have provided their consent to such enforcement
actions), may give Obligor written notice of any such payments and Obligor shall
reimburse Agent within two (2) business days of receipt of such written notice
an amount equal to such Drawn Amounts and/or Guaranty Expense Amount, as
applicable.
{Page}
(b) Obligor's Obligations hereunder are absolute, unconditional and
irrevocable and shall not be reduced by any set-off or any event or occurrence
including any action or inaction by Agent or Guarantors or any other party or by
any unenforceability of the Credit Agreement. Any Obligations not paid when due
shall bear interest a rate per annum of 10%.
(c) All payments by Obligor shall be made to Agent for the account of all
of the Guarantors and shall be made in immediately available funds, no later
than 1:00 p.m. (California time) on the date specified herein. Any payment
received by Agent later than 1:00 p.m. (California time), shall be deemed to
have been received on the following business day and any applicable interest
shall continue to accrue until such following business day.
(d) Except as otherwise provided in this Agreement, aggregate payments
made pursuant to this Section 1 shall be apportioned ratably among the
Guarantors and payments of Guaranty Expense Amounts (other than fees or expenses
that are for Agent's separate account) shall be apportioned ratably among the
Guarantors. All payments shall be remitted to Agent and all such payments and
all proceeds of Collateral received by Agent, shall be applied as follows:
(i) FIRST, to pay any Guaranty Expense Amounts then due to Agent
under the Operative Documents, until paid in full;
(ii) SECOND, to pay any Guaranty Expense Amount then due to the
Guarantors under the Operative Documents, on a ratable basis, until paid in
full;
(iii) THIRD, to pay any interest due in respect of Drawn Amounts to
the Guarantors under this Agreement, on a ratable basis, until paid in full; and
(iv) FOURTH, to pay any Drawn Amounts then due to the Guarantors
under this Agreement, on a ratable basis, until paid in full.
Except as otherwise provided in this Agreement, rights, interests and
obligations of each Guarantor under this Agreement and related Operative
Documents, including security interests in the Collateral under the Security
Agreement, shall be shared by each Guarantor in the ratio of (a) the aggregate
Drawn Amount paid by such Guarantor to Bank pursuant to such Guarantor's
Guaranty to (b) the aggregate Drawn Amounts paid by all Guarantors to Bank
pursuant to such Guarantors' Guaranties; and if no Drawn Amounts have been paid
to Bank, then the ratio of (y) a Guarantor's Guaranty Commitment to (z) the
aggregate Guaranty Commitments of all Guarantors. Any reference in this
Agreement to an allocation between or sharing by Guarantors of any right,
interest or obligation "ratably," "proportionally" or in similar terms shall
refer to this ratio.
2. REPRESENTATIONS AND WARRANTIES OF OBLIGOR. Obligor represents and
warrants to Agent and Guarantors that:
(a) DUE INCORPORATION, QUALIFICATION, ETC. Obligor (i) is a
corporation duly organized, validly existing and in good standing under the laws
of its state of incorporation; (ii) has the corporate power and authority to
own, lease and operate its properties and carry on its business as now
conducted; and (iii) is duly qualified, licensed to do business and in good
standing as a foreign corporation in each jurisdiction where the failure to be
so qualified or licensed could reasonably be expected to have a material adverse
effect on the business, financial condition or results of operations of Obligor.
153231
|
Avaya
As referenced in this Reimbursement Agreement:
/Avaya, Inc – 1
Existing Indebtedness:
{Table}
{Caption}
Type Creditor Amount
---- -------- ------
{S} {C} {C}
Capital Lease Comdisco, Inc. $ 194,978
Capital Lease Copper Mountain Networks, Inc. $ 4,098,813
Capital Lease Lucent Technologies/Avaya, Inc . $ 295,546
Capital Lease Insight Technologies/Verserv, Inc. $ 35,187
Capital Lease Other $ 30,482
Letter of Credit People's Bank #SB-1199 $ 406,666
Letter of Credit People'
_____________
dt 1545424
;
Copper Mountain
As referenced in this Reimbursement Agreement:
Copper Mountain Networks, Inc – Jr.
--------------------------------------------------
Title: Officer
Signature Page to the Reimbursement Agreement
{Page}
SCHEDULE 1
Existing Indebtedness:
{Table}
{Caption}
Type Creditor Amount
---- -------- ------
{S} {C} {C}
Capital Lease Comdisco, Inc. $ 194,978
Capital Lease Copper Mountain Networks, Inc . $ 4,098,813
Capital Lease Lucent Technologies/Avaya, Inc. $ 295,546
Capital Lease Insight Technologie |