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Term Loan and Security Agreement
Term Loan and Security Agreement (148K)
Doc #112983: Click preview link for longer preview.
TERM LOAN AND SECURITY AGREEMENT
THIS TERM LOAN AND SECURITY AGREEMENT(this "AGREEMENT"), is entered
into as of December 23, 2002, between MERRIMAC INDUSTRIES, INC., a Delaware
corporation, with an address at 41 Fairfield Place, West Caldwell, NJ 07006 (the
"BORROWER"), and FLEET NATIONAL BANK (f/k/a/ Summit Bank) (the "BANK"), with an
address at 208 Harristown Road, Glen Rock, New Jersey 07452.
WHEREAS, the Borrower desires to borrow, and the Bank desires to lend
money pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants and premises
contained herein, and for other good and valuable consideration, the sufficiency
of which is hereby acknowledged, the Borrower and the Bank, intending to be
legally bound, hereby agree as follows:
1. DEFINITIONS.
All capitalized terms used and not otherwise defined in the body of
this Agreement shall have the meanings assigned to them in the Schedule 1. All
terms of an accounting character not specifically defined herein shall have
meanings given to such terms by GAAP.
2. LOAN TERMS; AMOUNTS; INTEREST RATES; ETC.
2.1 TERM LOAN. The Bank agrees, subject to the terms and conditions
hereinafter set forth, to make a term loan to the Borrower in the
aggregate principal amount of TWO MILLION SEVEN HUNDRED TWENTY THOUSAND
DOLLARS ($2,720,000) (the "LOAN" or "TERM LOAN") on the date hereof
(the "CLOSING DATE"). The Borrower may not reborrow any principal
amounts repaid or prepaid on the Term Loan. The Term Loan shall be
evidenced by a Term Loan Note in the form provided to the Borrower by
the Bank (together with any attachments thereto and amendments or
modifications thereto in effect from time to time, hereinafter referred
to as the "NOTE"). The Term Loan shall be for a term commencing on the
Closing Date and terminating on December 23, 2009 (the "MATURITY
DATE").
2.2 MATURITY. The Loan will mature on the Maturity Date, at which time
all amounts outstanding under the Loan and unpaid interest thereon will
automatically be due and payable.
{PAGE}
2.3 INTEREST RATES; COMPUTATION, LATE FEES AND PAYMENT TERMS.
(a) TERM LOAN INTEREST RATE. The Term Loan shall bear interest
computed daily on the unpaid principal balance at the rate equal to
two hundred (200) basis points over and above LIBOR in effect at
the time of such borrowing under the Loan for each Interest Period
(the "LIBOR Interest Rate"). Notwithstanding any provisions of this
paragraph to the contrary, each determination by the Bank of the
applicable LIBOR Interest Rate shall be deemed conclusive.
(b) PRINCIPAL. The principal amount of the Loan shall be payable in
monthly installments in accordance with the Note. All unpaid
principal and accrued, unpaid interest is due and payable in full
by the Borrower to the Bank on the Maturity Date.
(c) COMPUTING INTEREST. Interest will be calculated on the basis of
a year of 360 days for the actual number of days elapsed in each
interest period and will be payable in arrears.
(d) LATE FEES. If the entire amount of any required principal
and/or interest is not paid in full within ten (10) days after the
same is due, the Borrower shall pay to Bank a late fee equal to
five percent (5%) of the required payment.
(e) PAYMENT OF FEES AND EXPENSES. Borrower shall pay on demand all
expenses of Bank in connection with the preparation,
administration, default, collection, waiver or amendment of loan
terms, or in connection with Bank's exercise, preservation or
enforcement of any of its rights, remedies or options hereunder,
including, without limitation, reasonable fees of outside legal
counsel or the allocated costs of in-house legal counsel,
accounting, consulting, brokerage or other similar professional
fees or expenses, and any fees or expenses associated with travel
or other costs relating to any appraisals or examinations conducted
in connection the loan or any other collateral therefore, and the
amount of all such expenses shall, until paid, bear interest at the
rate applicable to principal hereunder (including any default rate)
and be an obligation secured by any collateral.
(f) DEFAULT RATE OF INTEREST. Upon an Event of Default described in
Section 7.1 (whether or not Bank has accelerated payment of the
Note), the unpaid principal of all advances shall, at the option of
Bank, bear interest at a rate which is four (4) percentage points
per annum greater than that which would otherwise be applicable
(the "DEFAULT RATE").
(g) APPLICATION OF PAYMENTS. All payments shall be applied first to
the payment of all fees, expenses and other amounts due to the Bank
(excluding principal and interest), then to accrued interest, and
the balance on account of outstanding principal; provided, however,
that after default, payments will be
112983
|
Du Pont
As referenced in this Term Loan and Security Agreement:
E.I. Du
Pont de Nemours – February 28, 2002, by and between
Borrower, and Dupont Chemical and Energy Operations, Inc., and E.I. Du
Pont de Nemours (collectively the "Dupont Companies")), or (iii) any
intellectual property arising out of the Transaction
dt 22258
;
Merrimac
As referenced in this Term Loan and Security Agreement:
MERRIMAC INDUSTRIES INC –
MERRIMAC INDUSTRIES INC
_____________
MERRIMAC INDUSTRIES, INC. – 10.(OO)
5
EXHIBIT 10(oo)
TERM LOAN AND SECURITY AGREEMENT
THIS TERM LOAN AND SECURITY AGREEMENT(this "AGREEMENT"), is entered
into as of December 23, 2002, between MERRIMAC INDUSTRIES, INC. , a Delaware
corporation, with an address at 41 Fairfield Place, West Caldwell, NJ 07006 (the
"BORROWER"), and FLEET NATIONAL BANK (f/k/a/ Summit Bank) (the "BANK"), with an
_____________
Merrimac Industries, Inc. – set forth below or
to such other address as any party may give to the other in
writing for such purpose:
To the Bank: To the Borrower:
Fleet National Bank Merrimac Industries, Inc.
208 Harristown Road 41 Fairfield Place
Glen Rock, New Jersey 07452 West Caldwell, New Jersey 07006
Attn: Richard H. Mady Attn: Robert V. Condon
12.2 PRESERVATION OF RIGHTS.
_____________
MERRIMAC INDUSTRIES, INC. – or appropriate.
36
[PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
37
WITNESS the due execution of this Term Loan Agreement as of the date
first written above.
ATTEST: MERRIMAC INDUSTRIES, INC.
/s/ Robert V. Condon By: /s/ Mason N. Carter
--------------------------- ---------------------------
Robert V. Condon, Secretary Name: Mason N. Carter
Title: President and CEO
FLEET NATIONAL BANK
By: /s/ Richard H. Mady
----------------------------
_____________
MERRIMAC
INDUSTRIES, INC. – to in the foregoing instrument
appeared before me this day in person and acknowledged that he signed, sealed
and delivered the said instrument as the free and voluntary act of MERRIMAC
INDUSTRIES, INC. , for the uses and purposes therein set forth, and that he was
duly authorized to execute same on behalf of said Company.
Given under my hand and notarial seal,
_____________
dt 1851975
;
|
Merrimac
As referenced in this Term Loan and Security Agreement:
MERRIMAC INDUSTRIES, INC. – 10.(OO)
{SEQUENCE}5
{PAGE}
EXHIBIT 10(oo)
TERM LOAN AND SECURITY AGREEMENT
THIS TERM LOAN AND SECURITY AGREEMENT(this "AGREEMENT"), is entered
into as of December 23, 2002, between MERRIMAC INDUSTRIES, INC. , a Delaware
corporation, with an address at 41 Fairfield Place, West Caldwell, NJ 07006 (the
"BORROWER"), and FLEET NATIONAL BANK (f/k/a/ Summit Bank) (the "BANK"), with an
_____________
Merrimac Industries, Inc. – set forth below or
to such other address as any party may give to the other in
writing for such purpose:
To the Bank: To the Borrower:
Fleet National Bank Merrimac Industries, Inc.
208 Harristown Road 41 Fairfield Place
Glen Rock, New Jersey 07452 West Caldwell, New Jersey 07006
Attn: Richard H. Mady Attn: Robert V. Condon
12.2 PRESERVATION OF RIGHTS.
_____________
MERRIMAC INDUSTRIES, INC. – or appropriate.
36
{PAGE}
[PAGE INTENTIONALLY LEFT BLANK]
[SIGNATURE PAGE FOLLOWS]
37
{PAGE}
WITNESS the due execution of this Term Loan Agreement as of the date
first written above.
ATTEST: MERRIMAC INDUSTRIES, INC.
/s/ Robert V. Condon By: /s/ Mason N. Carter
--------------------------- ---------------------------
Robert V. Condon, Secretary Name: Mason N. Carter
Title: President and CEO
FLEET NATIONAL BANK
By: /s/ Richard H. Mady
----------------------------
_____________
MERRIMAC
INDUSTRIES, INC. – to in the foregoing instrument
appeared before me this day in person and acknowledged that he signed, sealed
and delivered the said instrument as the free and voluntary act of MERRIMAC
INDUSTRIES, INC. , for the uses and purposes therein set forth, and that he was
duly authorized to execute same on behalf of said Company.
Given under my hand and notarial seal,
_____________
dt 1452241
;
 Fleet National
As referenced in this Term Loan and Security Agreement:
FLEET NATIONAL BANK – 23, 2002, between MERRIMAC INDUSTRIES, INC., a Delaware
corporation, with an address at 41 Fairfield Place, West Caldwell, NJ 07006 (the
"BORROWER"), and FLEET NATIONAL BANK (f/k/a/ Summit Bank) (the "BANK"), with an
address at 208 Harristown Road, Glen Rock, New Jersey 07452.
WHEREAS, the Borrower
_____________
Fleet National Bank
– credits, collateral and property, now or
hereafter in the possession, custody, safekeeping or control
of Bank or any entity under the control of Fleet National Bank
and its successors and assigns or in transit to any of them.
At any time, without demand or notice, (any such notice
_____________
Fleet National Bank – to such other address as any party may give to the other in
writing for such purpose:
To the Bank: To the Borrower:
Fleet National Bank Merrimac Industries, Inc.
208 Harristown Road 41 Fairfield Place
Glen Rock, New Jersey 07452 West Caldwell, New Jersey 07006
Attn: Richard H.
_____________
FLEET NATIONAL BANK
– INDUSTRIES, INC.
/s/ Robert V. Condon By: /s/ Mason N. Carter
--------------------------- ---------------------------
Robert V. Condon, Secretary Name: Mason N. Carter
Title: President and CEO
FLEET NATIONAL BANK
By: /s/ Richard H. Mady
----------------------------
Name: Richard H. Mady
Title: Senior Vice President
38
{PAGE}
ACKNOWLEDGMENT
STATE OF NEW JERSEY )
) SS.:
COUNTY
_____________
Fleet
National Bank, – advances, debts, liabilities, obligations, covenants and duties owing by
the Borrower to the Bank or to any other direct or indirect subsidiary of Fleet
National Bank, of any kind or nature, present or future
43
{PAGE}
(including any interest accruing thereon after maturity, or after the filing of
_____________
dt 103836
|
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| 2003 |
Loan and Security Agreement
Loan and Security Agreement (148K)
Doc #115788: Click preview link for longer preview.
LOAN AND SECURITY AGREEMENT
---------------------------
THIS LOAN AND SECURITY AGREEMENT (this "Agreement"), made and entered into as of
the 15th day of April, 2003, by and between MVP 3, LP, a Delaware limited
partnership ("Borrower"), FIFTH THIRD BANK, FLORIDA, a Florida banking
corporation ("Fifth Third"), NEOGENOMICS, INC., a Florida corporation
("Corporate Guarantor"), JOHN ELLIOTT, an individual residing at 2709 Buckthorn
Way, Naples, FL 34105 ("Elliott"), LARRY KUHNERT (also known as Lawrence R.
Kuhnert), an individual residing at 5120 Timberview Terrace, Orlando, FL 32819
("Kuhnert"), and STEVEN JONES, an individual residing at 1740 Persimmon Drive,
Naples, FL 34109 ("Jones", and collectively, jointly and severally with Kuhnert
and Elliott, referred to as "Individual Guarantors").
RECITALS
--------
A. Individual Guarantors are the sole limited partners of Borrower, and
the sole members of Borrower's general partner, Medical Venture Partners, LLC, a
Delaware limited liability company, and both Individual Guarantors and Borrower
have ownership interests in Corporate Guarantor by virtue of their ownership
interests in NeoGenomics, Inc., a Nevada corporation ("Parent"), which is the
parent and sole shareholder of Corporate Guarantor. Individual Guarantors and
Corporate Guarantor are sometimes referred to herein jointly, severally and
collectively as the "Guarantors".
B. Borrower desires to lend money to Corporate Guarantor to be used by
Corporate Guarantor for general working capital purposes, and has requested that
Fifth Third provide it with certain loan facilities, the proceeds of which will
be used solely to lend to Corporate Guarantor and to provide Borrower with
------
working capital (but not to exceed Two Hundred Fifty Thousand Dollars
($250,000.00) for such purpose).
C. Corporate Guarantor will receive a direct benefit from the loans
made to Borrower by Fifth Third as described in this Agreement, inasmuch as it
is the ultimate recipient of such loan proceeds.
D. Individual Guarantors will receive both a direct and indirect benefit
from the loans made to Borrower by Fifth Third as described in this Agreement,
inasmuch as they would otherwise be required to personally provide all such
funds to Borrower and they also will receive stock, ownership rights and other
benefits from both Parent and Corporate Guarantor.
E. Fifth Third is willing to make the loans to Borrower described in this
Agreement upon and subject to the terms and conditions set forth herein.
PROVISIONS
----------
NOW, THEREFORE, for and in consideration of the agreements herein
contained, the parties hereby agree as follows:
l. INCORPORATION OF RECITALS. The Recitals portion of this Agreement
---------------------------
is hereby incorporated by this reference as though it were fully set forth and
rewritten herein, and the affirmative statements therein contained shall be
deemed to be representations of Borrower, Corporate Guarantor and Individuals
Guarantors to Fifth Third which are hereby ratified and confirmed.
2. LOAN FACILITIES. Fifth Third hereby agrees to lend to Borrower (a) up to
---------------
the maximum sum of Seven Hundred Fifty Thousand Dollars ($750,000.00)
(hereinafter referred to as the "Revolving Line of Credit"), and (b) up to the
maximum sum of Seven Hundred Fifty Thousand Dollars ($750,000.00) (hereinafter
referred to as the "Draw Loan", and, collectively with the Revolving Line of
Credit, referred to as the "Loans"), on and subject to the terms and conditions
hereinafter set forth. As used in this Agreement, the term "Liabilities" or
"Liability" shall mean the Loans and any and all other indebtedness, advances,
obligations, covenants, undertakings and liabilities of Borrower and Corporate
Guarantor (including amendments, restatements, modifications, extensions and
renewals thereof) to Fifth Third or any affiliate of Fifth Third Bancorp under
all documents now or hereafter executed by Borrower and/or Corporate Guarantor
in favor of (or acquired by) Fifth Third or any affiliate of Fifth Third Bancorp
(the "Loan Documents") or however created, direct or indirect, now existing or
hereafter arising, due or to become due, absolute or contingent, participated in
whole or in part, whether evidenced or created by promissory notes, agreements
or otherwise, in any manner acquired by or accruing to Fifth Third or any
affiliate of Fifth Third Bancorp, whether by agreement, assignment or otherwise,
as well as any and all obligations of Borrower or Guarantors to Fifth Third or
any affiliate of Fifth Third Bancorp, whether absolute, contingent or otherwise
and howsoever and whensoever (whether now or hereafter) created, including,
without limitation, (a) those created, arising, evidenced or acquired (including
all renewals, extensions and modifications thereof and substitutions therefor),
under or in connection with (i) any and all Rate Management Agreements, and (ii)
any and all cancellations, buy-backs, reversals, terminations or assignments of
any Rate Management Agreement, (b) obligations of another or others guaranteed
or endorsed by Borrower, and (c) whether or not presently contemplated by the
parties on the date hereof, including all costs and expenses incurred in the
collection of such indebtedness or the loan referred to herein, taxes levied,
insurance and repairs to or for the maintenance of the Collateral hereinafter
described. As used herein, "Rate Management Agreement" shall mean any
agreement, device or arrangement providing for payments which are related to
fluctuations of interest rates, exchange rates, forward rates, or equity prices,
including, but not limited to, dollar-denominated or cross-currency interest
rate exchange agreements, forward currency exchange agreements, interest rate
cap or collar protection agreements, forward rate currency or interest rate
options, puts and warrants, and any agreement pertaining to equity derivative
transactions (e.g., equity or equity index swaps, options, caps, floors, collars
and forwards), including without limitation any ISDA Master Agreement between
Borrower or any Guarantor and Fifth Third or any affiliate of Fifth Third
Bancorp, and any schedules, confirmations and documents and other confirming
evidence between the parties confirming transactions thereunder, all whether now
existing or hereafter arising, and in each case as amended, modified or
supplemented from time to time. As used in this Agreement, an "Advance" shall
mean a sum advanced by Fifth Third from time to time under either the Revolving
Line of Credit or the Draw Loan, and "Advances" shall mean all such sums
collectively. As used in this Agreement, "Availability" shall mean the maximum
amount permitted to be drawn by Borrower under the Draw Loan based upon the
value of collateral granted by the Individual Guarantors to secure such
Advances, as described in paragraph 11(c) of this Agreement and the Draw Note
(as defined in paragraph 2 of this Agreement). "Initial Availability" is One
Hundred Twenty-Five Thousand Dollars ($125,000.00), based upon delivery of One
Thousand One Hundred Sixty (1,160) shares of stock of Lenawee Bancorp, Inc.,
plus Eleven Thousand Three Hundred Twenty Dollars ($11,320.00) in cash delivered
to Fifth Third by Kuhnert.
3. TERMS OF LOANS. The specific provisions of the Revolving Line of
----------------
Credit, including, but not limited to, the rate of interest, term, late charge,
prepayment rights, borrowing base limitations and default rate of interest, are
contained in that certain "Revolving Line of Credit Promissory Note" of even
date herewith from Borrower to Fifth Third (the "Line of Credit Note"), in the
form attached hereto as Exhibit A, as the same may be amended, restated,
----------
modified, extended and/or replaced from time to time. The specific provisions
of the Draw Loan, including, but not limited to, the rate of interest, term,
late charge, prepayment rights, conditions for draws and default rate of
interest, are contained in that certain "Draw Note" of even date herewith from
Borrower to Fifth Third (the "Draw Note"), in the form attached hereto as
Exhibit B, as the same may be amended, restated, modified, extended and/or
----
replaced from time to time. The Line of Credit Note and the Draw Note are
sometimes collectively referred to herein as the "Notes".
4. EVIDENCE OF INDEBTEDNESS AND SECURITY INTEREST. The Loans described
----------------------------------------------
in paragraph 2 hereof shall be evidenced by the Line of Credit Note and the Draw
Note, as described in paragraph 3 hereof, each executed by Borrower in favor of
Fifth Third (collectively, the "Notes"). The Notes shall be secured by:
(a) Security Agreement executed by Borrower in favor of Fifth Third
dated of even date herewith, as the same may be amended, modified, restated,
replaced and extended from time to time, encumbering all business assets of
Borrower, to be delivered to Fifth Third concurrent with this Agreement;
(b) Security Agreement executed by Corporate Guarantor in favor of
Fifth Third dated of even date herewith, as the same may be amended, modified,
restated, replaced and extended from time to time, encumbering all business
assets of Corporate Guarantor, to be delivered to Fifth Third concurrent with
this Agreement;
(c) Guaranty executed by each of the Guarantors in favor of Fifth Third
dated of even date herewith, as the same may be amended, modified, restated,
replaced and extended from time to time, to be delivered to Fifth Third
concurrent with this Agreement;
(d) Collateral Assignment of Loan Documents executed by Borrower and
Corporate Guarantor in favor of Fifth Third dated of even date herewith, as the
same may be amended, modified, restated, replaced and extended from time to
time, to be delivered to Fifth Third concurrent with this Agreement;
(e) certain key-man life insurance policies required in accordance with
paragraph 11(d) of this Agreement and in the Draw Note, together with Collateral
Assignments of the same in the form attached hereto as Exhibit C and
----------
incorporated by reference herein;
(f) Lockbox and Dominion of Funds Agreement executed by Corporate
Guarantor in favor of Fifth Third dated of even date herewith, as the same may
be amended, modified, restated, replaced and extended from time to time, to be
delivered to Fifth Third concurrent with this Agreement;
(g) the property described below in this paragraph 4, and
(h) such other and additional instruments as may now or hereafter be
granted by Borrower or any Guarantor to Fifth Third, including, without
limitation, the collateral hereafter granted by Individual Guarantors to support
Advances under the Draw Note as further described in paragraph 11(c) of this
Agreement ("Additional Collateral").
To secure the performance of this Agreement and subject only to Permitted
Liens, Borrower hereby grants in favor of Fifth Third a continuing security
interest in all accounts, equipment, inventory, goods, equipment, trademarks and
tangible and intangible personal property of Borrower (as such terms are defined
under the Uniform Commercial Code enacted in the State of Florida, as amended
from time to time ("UCC")), regardless of whether the foregoing is now owned or
existing or is owned, acquired or arises hereafter and the proceeds and products
of all of the foregoing including, without limitation, proceeds from all eminent
domain or condemnation awards or insurance covering the described property.
Borrower hereby authorizes Fifth Third to file any and all UCC financing
statements, amendments, continuations and/or modifications which Fifth Third
deems necessary or desirable to create, maintain and/or perfect a valid first
security interest created herein in such property.
115788
|
ISDA
As referenced in this Loan and Security Agreement:
ISDA – equity or equity index swaps, options, caps, floors, collars
and forwards), including without limitation any ISDA Master Agreement between
Borrower or any Guarantor and Fifth Third or any affiliate of Fifth
_____________
dt 75725
;
Fifth Third
As referenced in this Loan and Security Agreement:
Fifth Third Bancorp – and all other indebtedness, advances,
obligations, covenants, undertakings and liabilities of Borrower and Corporate
Guarantor (including amendments, restatements, modifications, extensions and
renewals thereof) to Fifth Third or any affiliate of Fifth Third Bancorp under
all documents now or hereafter executed by Borrower and/or Corporate Guarantor
in favor of (or acquired by) Fifth Third or any affiliate of Fifth Third Bancorp
(the "Loan
_____________
Fifth Third Bancorp
– affiliate of Fifth Third Bancorp under
all documents now or hereafter executed by Borrower and/or Corporate Guarantor
in favor of (or acquired by) Fifth Third or any affiliate of Fifth Third Bancorp
(the "Loan Documents") or however created, direct or indirect, now existing or
hereafter arising, due or to become due, absolute or contingent, participated in
whole or in part, whether
_____________
Fifth Third Bancorp, – participated in
whole or in part, whether evidenced or created by promissory notes, agreements
or otherwise, in any manner acquired by or accruing to Fifth Third or any
affiliate of Fifth Third Bancorp, whether by agreement, assignment or otherwise,
as well as any and all obligations of Borrower or Guarantors to Fifth Third or
any affiliate of Fifth Third Bancorp, whether absolute,
_____________
Fifth Third Bancorp, – any
affiliate of Fifth Third Bancorp, whether by agreement, assignment or otherwise,
as well as any and all obligations of Borrower or Guarantors to Fifth Third or
any affiliate of Fifth Third Bancorp, whether absolute, contingent or otherwise
and howsoever and whensoever (whether now or hereafter) created, including,
without limitation, (a) those created, arising, evidenced or acquired (including
all renewals, extensions and
_____________
Fifth Third
Bancorp, – equity or equity index swaps, options, caps, floors, collars
and forwards), including without limitation any ISDA Master Agreement between
Borrower or any Guarantor and Fifth Third or any affiliate of Fifth Third
Bancorp, and any schedules, confirmations and documents and other confirming
evidence between the parties confirming transactions thereunder, all whether now
existing or hereafter arising, and in each case as amended,
_____________
dt 1445531
;
 Porter Wright
As referenced in this Loan and Security Agreement:
Porter Wright – SIGNATURES CONTINUE ON NEXT PAGE]
Print Name
Print Name: Steven Jones
This Instrument Prepared By:
Porter Wright Morris & Arthur LLP
5801 Pelican Bay Boulevard, Suite 300
Naples, Florida 34108-2709
{PAGE}
------
dt 33263
;
| MVP 3, LP;
Fifth Third Bank;
More... |
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Receivables Loan and Security Agreement
Receivables Loan and Security Agreement (359K)
Doc #126313: Click preview link for longer preview.
================================================================================
U.S. $100,000,000
RECEIVABLES LOAN AND SECURITY AGREEMENT
Dated as of May 9, 2003
Among
MAXTOR FUNDING LLC,
as the Borrower
and
MAXTOR CORPORATION,
as the Servicer
and
MERRILL LYNCH COMMERCIAL FINANCE CORP.,
as the Lender
and
MERRILL LYNCH COMMERCIAL FINANCE CORP.,
as Agent
and
RADIAN REINSURANCE INC.,
as Facility Insurer
and
U.S. BANK NATIONAL ASSOCIATION,
as the Backup Servicer, the Trustee, the Collateral Agent
and the Collection Account Bank
================================================================================
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
I. DEFINITIONS......................................................................................... 1
SECTION 1.01 Certain Defined Terms................................................................. 1
SECTION 1.02 Other Terms........................................................................... 27
SECTION 1.03 Computation of Time Periods........................................................... 27
II. THE RECEIVABLES FACILITY............................................................................ 27
SECTION 2.01 Borrowings............................................................................ 27
SECTION 2.02 The Initial Borrowing and Subsequent Borrowings....................................... 27
SECTION 2.03 Facility Maturity Date................................................................ 28
SECTION 2.04 Determination of Fixed Periods........................................................ 28
SECTION 2.05 Remittance Procedures................................................................. 28
(a) Yield and Liquidation Fees............................................................ 29
(b) [Intentionally omitted.].............................................................. 29
(c) Remittance Date Transfers from Collection Account..................................... 29
(d) Borrower Deficiency Payments.......................................................... 31
(e) [Intentionally omitted.].............................................................. 31
(f) Reinvestment Withdrawals.............................................................. 31
(g) Instructions to the Collection Account Bank........................................... 31
SECTION 2.06 Payments and Computations, Etc........................................................ 32
SECTION 2.07 Fees and Premium...................................................................... 32
SECTION 2.08 Increased Costs; Capital Adequacy..................................................... 33
SECTION 2.09 Collateral Assignment of Agreements................................................... 34
SECTION 2.10 Grant of a Security Interest.......................................................... 34
SECTION 2.11 The Collateral Agent and the Pledged Assets........................................... 35
SECTION 2.12 Limitations on Duties of Collateral Agent, Etc........................................ 36
SECTION 2.13 Exculpatory Provisions................................................................ 36
SECTION 2.14 Reliance by Collateral Agent, Etc..................................................... 36
SECTION 2.15 Collateral Agent's Reliance, Etc...................................................... 37
SECTION 2.16 Delegation of Duties by the Collateral Agent.......................................... 38
SECTION 2.17 Agent................................................................................. 38
SECTION 2.18 Evidence of Debt...................................................................... 39
SECTION 2.19 Survival of Representations and Warranties; Repayment Obligations..................... 39
SECTION 2.20 Release of Pledged Receivables........................................................ 39
SECTION 2.21 Treatment of Amounts Paid by the Borrower............................................. 40
SECTION 2.22 Termination........................................................................... 40
SECTION 2.23 Increase of Borrowing Limit........................................................... 40
SECTION 2.24 Successor Collateral Agent............................................................ 40
SECTION 2.25 Successor Trustee..................................................................... 41
{/TABLE}
-i-
{PAGE}
{TABLE}
{S} {C}
III. CONDITIONS OF LOANS................................................................................. 41
SECTION 3.01 Conditions Precedent to Initial Borrowing............................................. 41
SECTION 3.02 Conditions Precedent to All Borrowings................................................ 42
SECTION 3.03 Advances Do Not Constitute a Waiver................................................... 43
IV. REPRESENTATIONS AND WARRANTIES...................................................................... 43
SECTION 4.01 Representations and Warranties of the Borrower........................................ 43
SECTION 4.02 Representations and Warranties of the Servicer........................................ 48
SECTION 4.03 Sale of Receivables Upon Breach of Covenant or Representation and
Warranty by Borrower ................................................................. 53
SECTION 4.04 Representations and Warranties of the Backup Servicer,the Trustee,
the Collateral Agent and the Collection Account Bank.................................. 54
V. GENERAL COVENANTS OF THE BORROWER AND THE SERVICER.................................................. 54
SECTION 5.01 General Covenants..................................................................... 54
VI. ADMINISTRATION AND SERVICING; CERTAIN COVENANTS..................................................... 60
SECTION 6.01 Appointment and Designation of the Servicer........................................... 60
SECTION 6.02 Collection of Receivable Payments; Modification and Amendment of Receivables........... 61
SECTION 6.03 Realization Upon Receivables.......................................................... 62
SECTION 6.04 Insurance............................................................................. 62
SECTION 6.05 Maintenance of Security Interests in the Related Security............................. 62
SECTION 6.06 Pledged Receivable Receipts........................................................... 63
SECTION 6.07 Unidentified Payments; Lender's Right of Presumption.................................. 63
SECTION 6.08 No Rights of Withdrawal............................................................... 63
SECTION 6.09 Permitted Investments................................................................. 63
SECTION 6.10 Servicing Compensation................................................................ 64
SECTION 6.11 Reports; Account Statements; Servicing Information.................................... 64
SECTION 6.12 Statements as to Compliance; Financial Statements..................................... 66
SECTION 6.13 Access to Certain Documentation....................................................... 68
SECTION 6.14 Backup Servicer....................................................................... 70
SECTION 6.15 Additional Remedies of Collateral Agent Upon Early Amortization Event................. 73
SECTION 6.16 Waiver of Defaults.................................................................... 74
SECTION 6.17 Maintenance of Certain Insurance...................................................... 74
SECTION 6.18 Segregation of Collections............................................................ 74
SECTION 6.19 UCC Matters; Protection and Perfection of Pledged Assets.............................. 74
SECTION 6.20 Servicer Advances..................................................................... 76
SECTION 6.21 [Intentionally Omitted.].............................................................. 76
SECTION 6.22 Breach of Covenant or Representation and Warranty by Servicer.......................... 76
SECTION 6.23 Compliance with Applicable Law........................................................ 76
VII. EARLY AMORTIZATION EVENTS........................................................................... 76
SECTION 7.01 Early Amortization Events............................................................. 76
SECTION 7.02 Additional Remedies................................................................... 79
{/TABLE}
-ii-
{PAGE}
{TABLE}
{S} {C}
VIII. INDEMNIFICATION..................................................................................... 80
SECTION 8.01 Indemnities by the Borrower........................................................... 80
SECTION 8.02 Indemnities by the Servicer........................................................... 82
IX. MISCELLANEOUS................................................................................ ...... 84
SECTION 9.01 Amendments and Waivers................................................................. 84
SECTION 9.02 Notices, Etc........................................................................... 84
SECTION 9.03 No Waiver; Remedies.................................................................... 84
SECTION 9.04 Binding Effect; Assignability; Multiple Lenders........................................ 85
SECTION 9.05 Term of This Agreement................................................................. 86
SECTION 9.06 Governing Law; Jury Waiver............................................................. 86
SECTION 9.07 Costs, Expenses and Taxes.............................................................. 86
SECTION 9.08 No Proceedings......................................................................... 87
SECTION 9.09 Recourse Against Certain Parties....................................................... 87
SECTION 9.10 Execution in Counterparts; Severability; Integration................................... 88
SECTION 9.11 Tax Characterization................................................................... 88
SECTION 9.12 Consent of the Facility Insurer........................................................ 88
SECTION 9.13 No Reliance............................................................................ 89
{/TABLE}
-iii-
{PAGE}
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
Schedule I Condition Precedent Documents
Schedule II [Intentionally omitted.]
Schedule III Prior Names, Tradenames, Fictitious Names and "Doing Business
As" Names
Schedule IV-A Litigation of the Borrower
Schedule IV-B Litigation of the Servicer
Schedule V Debt Ratings of Obligors
Schedule VI Cut-Off Dates
Schedule VII Representations and Warranties With Respect to Eligible
Receivables
EXHIBITS
EXHIBIT A Form of Borrowing Report
EXHIBIT B Form of Daily Report
EXHIBIT C Form of Monthly Remittance Report
EXHIBIT D-1 Form of Contract: Agreement
EXHIBIT D-2 Form of Contract: Invoice
EXHIBIT E Form of Notice of Borrowing
EXHIBIT F-1 Form of Backup Servicer Certification Letter Regarding Monthly
Remittance Report
EXHIBIT F-2 Form of Backup Servicer Certification Letter Regarding Borrowing
Report
-iv-
{PAGE}
THIS RECEIVABLES LOAN AND SECURITY AGREEMENT is made as of May 9,
2003, among:
(1) MAXTOR FUNDING LLC, a Delaware limited liability company (the
"Borrower");
(2) MAXTOR CORPORATION, a Delaware corporation, as the Servicer (as
defined herein);
(3) MERRILL LYNCH COMMERCIAL FINANCE CORP., as the Lender (as defined
herein);
(4) MERRILL LYNCH COMMERCIAL FINANCE CORP., as agent for the Lenders
(the "Agent");
(5) RADIAN REINSURANCE INC., a stock insurance company incorporated
under the laws of the State of New York ("Radian"), as Facility
Insurer (as defined herein); and
(6) U.S. BANK NATIONAL ASSOCIATION, as the Backup Servicer, the Trustee,
the Collateral Agent and the Collection Account Bank (as such terms
are defined herein); and
IT IS AGREED as follows:
I. DEFINITIONS
SECTION 1.01 Certain Defined Terms. Certain capitalized terms used
throughout this Agreement are defined above or in this Section 1.01.
As used in this Agreement and its exhibits, the following terms
shall have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Accountants' Report" has the meaning assigned to that term in
Section 6.13(a).
"Accrued Liability" means the reimbursement obligations and
liability owed by the Borrower to the Facility Insurer with respect to any
claims paid by the Facility Insurer pursuant to the Facility Insurance Policy,
it being understood and agreed that Accrued Liability shall not include any
obligations or liability with respect to Premiums, Facility Insurer Interest,
expenses, indemnification or any other amounts (other than the amount of such
reimbursement obligations) specified in the Facility Insurance Agreement, in any
related agreement or otherwise.
"Adjusted Base Rate" means with respect to any Fixed Period for any
Loan allocated to such Fixed Period, an interest rate per annum equal to the sum
of (i) the Applicable Margin in effect during such Fixed Period (or if more than
one Applicable Margin was in effect
126313
|
Citibank
As referenced in this Receivables Loan and Security Agreement:
Citibank, N.A. – of interest per
annum equal to the arithmetic average of the rates of interest publicly
announced by JPMorgan Chase Bank and
4
{PAGE}
Citibank, N.A. (or their respective successors) as their respective prime
commercial lending rates (or, as to any such bank that does not announce such
_____________
dt 145827
;
McGraw-Hill Companies
As referenced in this Receivables Loan and Security Agreement:
McGraw-Hill
Companies, Inc – Loan arising as a result of
a Borrowing on a Subsequent Borrowing Date.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc . (or its successors in interest).
"Sales" means, with respect to any period, the aggregate original
Outstanding Balances (without giving effect to any
_____________
dt 310719
;
|
BofA
As referenced in this Receivables Loan and Security Agreement:
Bank of America, – be amended, supplemented or otherwise modified in accordance with
the terms thereof.
"Lockbox Bank" means Bank of America, N.A. and its successors in
interest.
"Long Term Rating" for any Person, shall
Bank of America, – benefit of the Lender)
by payment into the Borrower's account number 12332-01771 at Bank of America,
N.A., ABA No. 121000358 or such other account which the Borrower has designated
Bank of America, – and deposit, on behalf of the Borrower, into the Originator's account
number 1484004218 at Bank of America, N.A., ABA No. 121000358, or such other
account which the Borrower has designated
Bank of America – Documents duly executed
by the parties thereto;
(15) Evidence that Maxtor's lockbox account at Bank of America has
been renamed in the name of the Borrower; and
(16) A draft of the
dt 39790
;
Citibank
As referenced in this Receivables Loan and Security Agreement:
Citibank, N.A. – of interest per
annum equal to the arithmetic average of the rates of interest publicly
announced by JPMorgan Chase Bank and
4
{PAGE}
Citibank, N.A. (or their respective successors) as their respective prime
commercial lending rates (or, as to any such bank that does not announce such
_____________
dt 145827
;
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Revolving Credit, Term Loan and Security Agreement
Revolving Credit, Term Loan and Security Agreement (468K)
Doc #128718: Click preview link for longer preview.
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
PNC BANK, NATIONAL ASSOCIATION (AS LENDER AND AS AGENT)
WITH
U.S. RUBBER RECLAIMING, INC. (BORROWER)
Dated as of October 25, 2002
{PAGE}
Table of Contents
1. DEFINITIONS ........................................................1
1.1 ACCOUNTING TERMS ...............................................1
1.2 GENERALTERMS....................................................1
1.1 UNIFORM COMMERCIAL CODE TERMS.......................................16
1.2 CERTAIN MATTERS OF CONSTRUCTION.....................................16
2. ADVANCES, PAYMENTS..................................................16
2.1 REVOLVING ADVANCES..................................................16
2.2 DISCRETIONARY
RIGHTS.....................................................17
2.3 PROCEDURE FOR REVOLVING ADVANCES BORROWING ................17
2.4 DISBURSEMENT OF ADVANCE PROCEEDS...........................19
2.5 TERM LOAN..................................................19
2.6 MAXIMUM ADVANCES.......................................... 20
2.7 REPAYMENT OF ADVANCES..................................... 20
2.8 REPAYMENT OF EXCESS ADVANCES ............................. 20
2.9 STATEMENT OF ACCOUNT...................................... 20
2.10 LETTERS OF CREDIT......................................... 21
2.11 ISSUANCE OF LETTERS OF CREDIT..............................21
2.12 REQUIREMENTS FOR ISSUANCE OF LETTERS OF CREDIT.............22
2.13 ADDITIONAL PAYMENTS........................................23
2.14 MANNER OF BORROWING AND PAYMENT........................... 23
2.15 MANDATORY PREPAYMENTS..................................... 25
2.16 USE OF PROCEEDS........................................... 25
2.17 DEFAULTING LENDER......................................... 25
3. INTEREST AND 0FEES...................................................26
3.1 INTEREST.............................................................26
3.2 LETTER OF CREDIT FEES .............................................. 26
3.3 CLOSING FEE..........................................................27
3.4 FACILITY FEE.........................................................27
3.5 COLLATERAL EVALUATION FEE........................................... 28
3.6 COLLATERAL MONITORING FEE........................................... 28
3.7 COMPUTATION OF INTEREST AND FEES.................................... 28
3.8 MAXIMUM CHARGES..................................................... 28
3.9 INCREASED COSTS..................................................... 28
3.10 BASIS FOR DETERMINING INTEREST RATE INADEQUATE OR UNFAIR............ 29
3.11 CAPITAL ADEQUACY.....................................................30
3.12 GROSS UP FOR TAXES.................................................. 30
3.13 WITHHOLDING TAX EXEMPTION .......................................... 30
4. COLLATERAL: GENERAL TERMS........................................... 31
4.1 SECURITY INTEREST THE COLLATERAL.................................... 31
4.2 PERFECTION OF SECURITY INTEREST..................................... 31
4.3 DISPOSITION OF COLLATERAL........................................... 32
4.4 PRESERVATION OF COLLATERAL.......................................... 32
4.5 OWNERSHIP OF COLLATERAL..............................................32
4.6 DEFENSE OF AGENT'S AND LENDER'S INTERESTS .......................... 32
4.7 BOOKS AND RECORDS................................................... 33
4.8 FINANCIAL DISCLOSURE................................................ 33
4.9 COMPLIANCE WITH LAWS ............................................... 33
4.10 INSPECTION OF PREMISES ............................................. 34
{PAGE}
4.11 INSURANCE............................................................34
4.12 FAILURE TO PAY INSURANCE ........................................... 34
4.13 PAYMENT OF TAXES.....................................................35
4.14 PAYMENT OF LEASEHOLD OBLIGATIONS.................................... 35
4.15 RECEIVABLES..........................................................35
4.15.1 Nature of Receivables....................................... 35
4.15.2 Solvency of Customers ...................................... 35
4.15.3 Location of Borrower........................................ 35
4.15.4 Collection of Receivables................................... 35
4.15.5 Notification of Assignment of Receivables................... 36
4.15.6 Power of Agent to Act on Borrower's Behalf.................. 36
4.15.7 No Liability.................................................36
4.15.8 Establishment of a Lockbox Account, Dominion Account ....... 37
4.15.9 Adjustments..................................................37
4.16 INVENTORY............................................................37
4.17 MAINTENANCE OF EQUIPMENT............................................ 37
4.18 EXCULPATION OF LIABILITY............................................ 37
4.19 ENVIRONMENTAL MATTERS................................................38
4.20 FINANCING STATEMENTS ............................................... 40
5. REPRESENTATIONS AND WARRANTIES...................................... 40
5.1 AUTHORITY............................................................40
5.2 FORMATION AND QUALIFICATION..........................................40
5.3 SURVIVAL OF REPRESENTATIONS AND WARRANTIES...........................41
5.4 TAX RETURNS..........................................................41
5.5 FINANCIAL STATEMENTS.................................................41
5.6 CORPORATE NAME.......................................................42
5.7 O.S.H.A. AND ENVIRONMENTAL COMPLIANCE............................... 42
5.8 SOLVENCY; NO LITIGATION, VIOLATION, INDEBTEDNESS OR DEFAULT ........ 42
5.9 PATENTS, TRADEMARKS, COPYRIGHTS AND LICENSES ....................... 43
5.10 LICENSES AND PERMITS................................................ 44
5.11 DEFAULT OF INDEBTEDNESS............................................. 44
5.12 NO DEFAULT...........................................................44
5.13 NO BURDENSOME RESTRICTIONS.......................................... 44
5.14 NO LABOR DISPUTES....................................................44
5.15 MARGIN REGULATIONS...................................................44
5.16 INVESTMENT COMPANY ACT.............................................. 45
5.17 DISCLOSURE...........................................................45
5.18 DELIVERY OF MEZZANINE DOCUMENTATION ................................ 45
5.19 SWAPS................................................................45
5.20 CONFLICTING AGREEMENTS...............................................45
5.21 APPLICATION OF CERTAIN LAWS AND REGULATIONS .........................45
5.22 BUSINESS AND PROPERTY OF BORROWER................................... 45
5.24 SECTION 20 SUBSIDIARIES..............................................45
6. AFFIRMATIVE COVENANTS................................................46
6.1 PAYMENT OF FEES......................................................46
6.2 CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE AND ASSETS .........46
6.3 VIOLATIONS...........................................................46
6.4 GOVERNMENT RECEIVABLES.............................................. 46
6.5 NET WORTH............................................................46
6.6 FIXED CHARGE COVERAGE RATIO......................................... 46
6.7 EXECUTION OF SUPPLEMENTAL INSTRUMENTS .............................. 47
6.8 PAYMENT OF INDEBTEDNESS............................................. 47
6.9 STANDARDS OF FINANCIAL STATEMENTS................................... 47
{PAGE}
7. NEGATIVE COVENANTS.................................................. 47
7.1 MERGER, CONSOLIDATION, ACQUISITION AND SALE OF ASSETS .............. 47
7.2 CREATION OF LIENS....................................................47
7.3 GUARANTEES...........................................................47
7.4 INVESTMENTS..........................................................47
7.5 LOANS................................................................48
7.6 CAPITAL EXPENDITURES.................................................48
7.7 DIVIDENDS............................................................48
7.8 INDEBTEDNESS.........................................................48
7.9 NATURE OF BUSINESS...................................................48
7.10 TRANSACTIONS WITH AFFILIATES.........................................48
7.11 LEASES...............................................................48
7.12 SUBSIDIARIES.........................................................48
7.13 FISCAL YEAR AND ACCOUNTING CHANGES.................................. 48
7.14 PLEDGE OF CREDIT.....................................................49
7.15 AMENDMENT OF ARTICLES OF INCORPORATION, BY-LAWS .....................49
7.16 COMPLIANCE WITH ERISA............................................... 49
7.17 PREPAYMENT OF INDEBTEDNESS...........................................49
7.18 SUBORDINATED NOTE....................................................49
8. CONDITIONS PRECEDENT................................................ 49
8.1 CONDITIONS TO INITIAL ADVANCES...................................... 49
8.1.1 Note.................................................................50
8.1.2 Filings, Registrations and Recordings............................... 50
8.1.3 Corporate Proceedings of Borrower................................... 50
8.1.4 Incumbency Certificates of Borrower................................. 50
8.1.5 Certificates.........................................................50
8.1.6 Good Standing Certificates.......................................... 50
8.1.7 Legal Opinion........................................................50
8.1.8 No Litigation........................................................51
8.1.9 Collateral Examination.............................................. 51
8.1.10 Fees.................................................................51
8.1.11 Financial Statements.................................................51
8.1.12 Acquisition and Mezzanine Documents................................. 51
8.1.13 Subordination Agreements............................................ 51
8.1.14 Insurance............................................................51
8.1.15 Title Insurance......................................................51
8.1.16 Environmental Reports............................................... 52
8.1.17 Payment Instructions................................................ 52
8.1.18 Blocked Accounts.....................................................52
8.1.19 Consents.............................................................52
8.1.20 No Adverse Material Change.......................................... 52
8.1.21 Leasehold Agreements................................................ 52
8.1.22 Mortgage.............................................................52
8.1.23 Subordinated Note Documentation..................................... 52
8.1.24 Contract Review.....................................................52
8.1.25 Closing Certificate.................................................52
8.1.26 Borrowing Base..................................................... 52
8.1.27 UNDRAWN AVAILABILITY................................................53
8.1.28 Other...............................................................53
8.2 CONDITIONS TO EACH ADVANCE......................................... 53
8.2.1 Representations and Warranties..................................... 53
8.2.2 No Default..........................................................53
8.2.3 Maximum Advances....................................................53
{PAGE}
9. INFORMATION AS TO BORROWERS......................................... 53
9.1 DISCLOSURE OF MATERIAL MATTERS...................................... 53
9.2 SCHEDULES............................................................53
9.3 ENVIRONMENTAL REPORTS................................................54
9.4 LITIGATION...........................................................54
9.5 MATERIAL OCCURRENCES................................................ 54
9.6 GOVERNMENT RECEIVABLES.............................................. 54
9.7 ANNUAL FINANCIAL STATEMENTS......................................... 54
9.8 QUARTERLY FINANCIAL STATEMENTS...................................... 55
9.9 MONTHLY FINANCIAL STATEMENTS........................................ 55
9.10 OTHER REPORTS....................................................... 56
9.11 ADDITIONAL INFORMATION.............................................. 56
9.12 PROJECTED OPERATING BUDGET.......................................... 56
9.13 VARIANCES FROM OPERATING BUDGET..................................... 56
9.14 NOTICE OF SUITS, ADVERSE EVENTS..................................... 56
9.15 ERISA NOTICES AND REQUESTS.......................................... 56
9.16 ADDITIONAL DOCUMENTS................................................ 57
10. EVENTS OF DEFAULT....................................................57
11. LENDERS' RIGHTS AND REMEDIES AFTER DEFAULT ..........................60
11.1 RIGHTS AND REMEDIES................................................. 60
11.2 AGENT'S DISCRETION.................................................. 61
11.3 SETOFF...............................................................61
11.4 RIGHTS AND REMEDIES NOT EXCLUSIVE................................... 61
11.5 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT........................61
12. WAIVERS AND JUDICIAL PROCEEDINGS.....................................62
12.1 WAIVER OF NOTICE.....................................................62
12.2 DELAY................................................................62
12.3 JURY WAIVER..........................................................62
13. EFFECTIVE DATE AND TERMINATION.......................................62
13.1 TERM.................................................................62
13.2 TERMINATION..........................................................63
14. REGARDING AGENT......................................................63
14.1 APPOINTMENT..........................................................63
14.2 NATURE OF DUTIES.................................................... 64
14.3 LACK OF RELIANCE ON AGENT AND RESIGNATION .......................... 64
14.4 CERTAIN RIGHTS OF AGENT............................................. 65
14.5 RELIANCE.............................................................65
14.6 NOTICE OF DEFAULT................................................... 65
14.7 INDEMNIFICATION......................................................65
14.8 AGENT IN ITS INDIVIDUAL CAPACITY.................................... 65
14.9 DELIVERY OF DOCUMENTS............................................... 66
14.10 BORROWER'S UNDERTAKING TO AGENT..................................... 66
15. MISCELLANEOUS........................................................66
15.1 GOVERNING LAW........................................................66
15.2 ENTIRE UNDERSTANDING.................................................66
15.3 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; NEW LENDERS................. 69
15.4 APPLICATION OF PAYMENTS............................................. 70
15.5 INDEMNITY............................................................70
15.6 NOTICE...............................................................71
15.7 SURVIVAL.............................................................72
15.8 SEVERABILITY.........................................................72
15.9 EXPENSES.............................................................72
15.10 INJUNCTIVE RELIEF................................................... 73
15.11 CONSEQUENTIAL DAMAGES................................................73
15.12 CAPTIONS.............................................................73
15.13 COUNTERPARTS; FACSIMILE SIGNATURES...................................73
15.14 CONSTRUCTION.........................................................73
15.15 CONFIDENTIALITY; SHARING INFORMATION ................................73
15.16 PUBLICITY............................................................74
{PAGE}
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
Revolving Credit, Term Loan and Security Agreement dated as of October 25,
2002 among U.S. RUBBER RECLAIMING, INC., a corporation organized under the laws
of the State of Indiana ("Borrower"), the financial institutions which are now
or which hereafter become a party hereto (collectively, the "Lenders" and
individually a "Lender") and PNC BANK, NATIONAL ASSOCIATION ("PNC"), as agent
for Lenders (PNC, in such capacity, the "Agent").
IN CONSIDERATION of the mutual covenants and undertakings herein contained,
Borrower, Lenders and Agent hereby agree as follows:
1. DEFINITIONS.
1.1 Accounting Terms. As used in this Agreement, the Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement, accounting terms not defined in Section 1.2 or elsewhere in this
Agreement and accounting terms partly defined in Section 1.2 to the extent not
defined, shall have the respective meanings given to them under GAAP; provided,
however, whenever such accounting terms are used for the purposes of determining
compliance with financial covenants in this Agreement, such accounting terms
shall be defined in accordance with GAAP as applied in preparation of the
audited financial statements of Borrower for the fiscal year ended October 31,
2001.
1.2 General Terms. For purposes of this Agreement the following terms shall
have the following meanings:
"Accountants" shall have the meaning set forth in Section 9.7 hereof.
"Advances" shall mean and include the Revolving Advances, Letters of
Credit, as well as the Term Loan.
"Advance Rates" shall have the meaning set forth in Section 2.1 hereof.
"Affiliate" of any Person shall mean (a) any Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with such Person, or (b) any Person who is a director
or officer (i) of such Person, (ii) of any Subsidiary of such Person or (iii) of
any Person described in clause (a) above. For purposes of this definition,
control of a Person shall mean the power, direct or indirect, (x) to vote 5% or
more of the securities having ordinary voting power for the election of
directors of such Person, or (y) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Agent" shall have the meaning set forth in the preamble to this Agreement
and shall include its successors and assigns.
128718
|
ISDA
As referenced in this Revolving Credit, Term Loan and Security Agreement:
International Swap
Dealers Association – not evidenced by any note,
guaranty or other instrument, including but not limited to those
arising under: (i) the Loan Agreement, (ii) any International Swap
Dealers Association Master Agreement ("Master Agreement"), and
including each Transaction (as such term is defined in the Master
Agreement), as confirmed in the applicable
_____________
International Swap
Dealers Association – not evidenced by any note,
guaranty or other instrument, including but not limited to those
arising under: (i) the Loan Agreement, (ii) any International Swap
Dealers Association Master Agreement ("Master Agreement"), and
including each Transaction (as such term is defined in the Master
Agreement), as confirmed in the applicable
_____________
dt 97845
;
ISDA
As referenced in this Revolving Credit, Term Loan and Security Agreement:
International Swaps and Derivatives Association – or affiliate of Agent or any Lender arising under any
of the following: (a) any International Swaps and Derivatives Association
Master Agreement ("Master Agreement"), and including each Transaction (as
such term is defined in
_____________
dt 75489
;
BNY
As referenced in this Revolving Credit, Term Loan and Security Agreement:
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 41623
;
|
PNC Bank
As referenced in this Revolving Credit, Term Loan and Security Agreement:
PNC BANK, – EX-10
{SEQUENCE}10
{FILENAME}ex10-49.txt
{DESCRIPTION}EXHIBIT 10.49
{TEXT}
Exhibit 10.49
REVOLVING CREDIT, TERM LOAN AND SECURITY AGREEMENT
PNC BANK, NATIONAL ASSOCIATION (AS LENDER AND AS AGENT)
WITH
U.S. RUBBER RECLAIMING, INC. (BORROWER)
Dated as of October 25, 2002
{PAGE}
Table
_____________
PNC BANK, – Indiana ("Borrower"), the financial institutions which are now
or which hereafter become a party hereto (collectively, the "Lenders" and
individually a "Lender") and PNC BANK, NATIONAL ASSOCIATION ("PNC"), as agent
for Lenders (PNC, in such capacity, the "Agent").
IN CONSIDERATION of the mutual covenants and undertakings herein
_____________
PNC Bank, – Agent, and the Agent shall promptly notify the other Lenders of
its receipt of such Notice.
{PAGE}
If to Agent or PNC at: PNC Bank, National Association
One PNC Plaza
249 Fifth Avenue, 6th Floor
Pittsburgh, Pennsylvania 15222
Attention: Doreen K. Casey
Telephone: (412) 762-2881
Telecopier: (
_____________
PNC Bank, – Fifth Avenue, 6th Floor
Pittsburgh, Pennsylvania 15222
Attention: Doreen K. Casey
Telephone: (412) 762-2881
Telecopier: (412) 768-4369
with a copy to: PNC Bank, National Association
PNC Agency Services
One PNC Plaza, 22nd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222
with a copy to: Frost Brown
_____________
PNC BANK, – the day and year first
above written.
U.S. RUBBER RECLAIMING, INC.
By:/s/ Timothy S. Durham
----------------------------------------
Name: Timothy S. Durham
Title: Chairman
PNC BANK, NATIONAL ASSOCIATION,
as Lender and as Agent
By: /s/ Paul J. Count
---------------------------------------
Name: Paul J. Count
Title: Vice President
Commitment Percentage: 100%
_____________
dt 114062
;
Frost Brown Todd
As referenced in this Revolving Credit, Term Loan and Security Agreement:
Frost Brown – One PNC Plaza, 22nd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222
with a copy to: Frost Brown Todd LLC
2200 PNC Center
201 E. 5th Street
Cincinnati, Ohio 45202
Attention: Michael
Frost Brown – One PNC Plaza, 22nd Floor
249 Fifth Avenue
Pittsburgh, Pennsylvania 15222
with a copy to: Frost Brown Todd LLC
2200 PNC Center
201 E. 5th Street
Cincinnati, Ohio 45202
Attention: Michael
Frost Brown – PNC Plaza, 22nd Floor 249
Fifth Avenue
Pittsburgh, Pennsylvania 15222
{PAGE}
with a copy to: Frost Brown Todd LLC
2200 PNC Center
201 E. 5th Street
Cincinnati, Ohio 45202
Attention: Michael
dt 36743
;
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| 2003 |
Loan and Security Agreement [Amended and Restated No. 1]
Loan and Security Agreement [Amended and Restated No. 1] (354K)
Doc #130938: Click preview link for longer preview.
AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT
Amended and Restated Loan and Security Agreement, dated as of July 7, 2003, among the financial institutions listed on the signature pages hereof (such financial institutions, together with their respective successors and assigns, are referred to hereinafter each individually as a Lender and collectively as the Lenders), Bank of America, N.A. (the Bank) with an office at 55 South Lake, Suite 900, Pasadena, CA 91101, as agent for the Lenders (in its capacity as agent, the Agent), and Advanced Micro Devices, Inc. (the Parent), a Delaware corporation, with offices at One AMD Place, Sunnyvale, CA 94088 and AMD International Sales & Service, Ltd. (AMDISS), a Delaware corporation, as co-borrowers (individually and collectively, the Borrower).
WITNESSETH
WHEREAS, the Borrower, the several financial institutions from time to time party thereto and the Agent have entered into a Loan and Security Agreement, dated as of July 13, 1999 (as amended, the Original Agreement).
WHEREAS, the Borrower has requested the Lenders amend and restate the Original Agreement to, among other things, make available to the Borrower a revolving line of credit for loans and letters of credit in an amount not to exceed in the aggregate $200,000,000 and which extensions of credit the Borrower will use for its working capital needs and general business purposes;
WHEREAS, the Lenders have agreed to make available to the Borrower a revolving credit facility upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual conditions and agreements set forth in this Agreement, and for good and valuable consideration, the receipt of which is hereby acknowledged, the Lenders, the Agent, and the Borrower hereby agree as follows.
ARTICLE 1
INTERPRETATION OF THIS AGREEMENT
1.1 Definitions. As used herein:
2003 Stock Option Exchange Program means that certain one-time stock option exchange program offered by Parent during the period between June 23, 2003 and August 15, 2003, whereby certain eligible employees would be able to surrender stock options with exercise prices at $12 or above in exchange for a lesser number of stock options to be granted at the fair market value of Parents common stock six months and a day after the surrendered options are cancelled.
Accounts means, in respect of each Borrower, all of such Borrowers now owned or hereafter acquired or arising accounts, and any other rights to payment for the sale or lease of goods or rendition of services, whether or not they have been earned by performance.
1
Account Debtor means each Person obligated in any way on or in connection with an Account.
ACH Transactions means any cash management or related services including the automatic clearing house transfer of funds by the Agent for the account of the Borrower pursuant to agreement or overdrafts.
Adjusted Net Earnings from Operations means, with respect to any fiscal period of the Parent, the Parents net income after provision for income taxes for such fiscal period, as determined on a consolidated basis in accordance with GAAP and reported on the Financial Statements for such period, excluding any and all of the following included in such net income: (a) gain arising from the sale of any capital assets; (b) gain arising from any write-up in the book value of any asset; (c) earnings of any Person, substantially all the assets of which have been acquired by the Parent or any Subsidiary in any manner, to the extent realized by such other Person prior to the date of acquisition; (d) earnings of any Person in which the Parent or any Subsidiary has an ownership interest unless (and only to the extent) such earnings shall actually have been received by the Parent or any such Subsidiary in the form of cash distributions; (e) earnings of any Person to which assets of the Parent or any Subsidiary shall have been sold, transferred or disposed of, or into which the Parent or any Subsidiary shall have been merged, or which has been a party with the Parent or any Subsidiary to any consolidation or other form of reorganization, prior to the date of such transaction; (f) gain arising from the acquisition of debt or equity securities of the Parent or any Subsidiary or from cancellation or forgiveness of Debt; (g) gain arising from extraordinary items, as determined in accordance with GAAP, or from any other non-recurring transaction; (h) interest income; and (i) non-cash restructuring charges.
Adjusted Tangible Assets means all of the Parents assets, determined on a consolidated basis in accordance with GAAP, except: (a) deferred assets, other than prepaid insurance and prepaid taxes; (b) patents, copyrights, trademarks, trade names, franchises, goodwill, and other similar intangibles; (c) unamortized debt discount and expense; (d) assets of the Parent or any Subsidiary constituting Intercompany Accounts; and (e) fixed assets to the extent of any write-up in the book value thereof resulting from a revaluation effective after the Closing Date.
Adjusted Tangible Net Worth means, at any date: (a) the book value (after deducting related depreciation, obsolescence, amortization, valuation, and other proper reserves as determined in accordance with GAAP) at which the Adjusted Tangible Assets would be shown on a balance sheet of the Parent at such date prepared on a consolidated basis in accordance with GAAP less (b) the amount at which the Parents liabilities would be shown on such consolidated balance sheet, including as liabilities all reserves for contingencies and other potential liabilities which would be required to be shown on such balance sheet.
Affiliate means, as to any Person, any other Person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such Person or which owns, directly or indirectly, ten percent (10%) or more of the outstanding equity interest of such Person. A Person shall be deemed to control another Person if the controlling Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies
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AMD
As referenced in this Loan and Security Agreement [Amended and Restated No. 1]:
ADVANCED MICRO DEVICES, INC. – AND RESTATED LOAN AND SECURITY AGREEMENT
Dated as of July 7, 2003
Among
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders,
BANK OF AMERICA, N.A.
as the Agent
and
ADVANCED MICRO DEVICES, INC. , and
AMD INTERNATIONAL SALES & SERVICE, LTD.,
collectively, as the Borrower
Arranged by
BANC OF AMERICA SECURITIES, LLC
as Sole Lead Arranger and Sole Book Runner
TABLE OF CONTENTS
_____________
Advanced Micro Devices, Inc. – America, N.A. (the Bank) with an office at 55 South Lake, Suite 900, Pasadena, CA 91101, as agent for the Lenders (in its capacity as agent, the Agent), and Advanced Micro Devices, Inc. (the Parent), a Delaware corporation, with offices at One AMD Place, Sunnyvale, CA 94088 and AMD International Sales & Service, Ltd. (AMDISS), a Delaware corporation, as co-borrowers (individually
_____________
Advanced Micro Devices, Inc. – to the Bank:
Bank of America, N.A.
55 South Lake Avenue
Suite 900
Pasadena, CA 91101
Attention: Business CreditAccount ExecutiveAMD
Telecopy No. (626) 397-1273
If to the Borrower:
Advanced Micro Devices, Inc.
AMD International Sales & Service, Ltd.
One AMD Place
Mailstop 89
Sunnyvale, CA 94088
Attention: Treasurer
Telecopy No.: (408) 774-7010
with copies to:
Advanced Micro Devices, Inc.
One
_____________
Advanced Micro Devices, Inc. – the Borrower:
Advanced Micro Devices, Inc.
AMD International Sales & Service, Ltd.
One AMD Place
Mailstop 89
Sunnyvale, CA 94088
Attention: Treasurer
Telecopy No.: (408) 774-7010
with copies to:
Advanced Micro Devices, Inc.
One AMD Place
Mailstop 150
Sunnyvale, CA 94088
Attention: General Counsel
or to such other address as each party may designate for |