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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------
FORM 10-Q
(Mark One)
[X] Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
For the quarter ended June 30, 1998
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934.
For the transition period from ____ to____
Commission file number:
0-28734
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ADVANCED FIBRE COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 68-0277743
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Willow Brook Court
Petaluma, California 94954
(707) 794-7700
(Address of Registrant's principal
executive offices and telephone number, including area code)
---------------------
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days.
Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
Outstanding as of
Class July 27, 1998
----- -------------
Common Stock, $0.01 par value 74,966,530
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ADVANCED FIBRE COMMUNICATIONS, INC.
REPORT ON FORM 10-Q
FOR THE QUARTER ENDED JUNE 30, 1998
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets
June 30, 1998 and December 31, 1997......................... 2
Condensed Consolidated Statements of Operations
Three and six months ended June 30, 1998 and 1997......... 3
Condensed Consolidated Statements of Cash Flows
Six months ended June 30, 1998 and 1997..................... 4
Notes to Condensed Consolidated Financial Statements............ 5
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations............................... 10
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.................................................... 20
Item 2. Changes in Securities and Use of Proceeds............................ 22
Item 3. Defaults Upon Senior Securities...................................... 23
Item 4. Submission of Matters to a Vote of Security Holders.................. 23
Item 5. Other Information.................................................... 23
Item 6. Exhibits and Reports on Form 8-K..................................... 23
</TABLE>
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PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
ADVANCED FIBRE COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In thousands, except share data)
(Unaudited)
<TABLE>
<CAPTION>
June 30, December 31,
1998 1997
--------- ---------
<S> <C> <C>
ASSETS
Current assets:
Cash and cash equivalents $ 16,228 $ 9,053
Marketable securities 88,630 96,143
Accounts receivable, net 87,654 79,098
Inventories, net 55,369 52,073
Other current assets 7,537 6,090
--------- ---------
Total current assets 255,418 242,457
Property and equipment, net 37,774 24,506
Other assets 10,172 6,330
--------- ---------
TOTAL ASSETS $ 303,364 $ 273,293
========= =========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Accounts payable $ 21,350 $ 18,475
Accrued liabilities 25,427 30,342
--------- ---------
Total current liabilities 46,777 48,817
Long-term liabilities 1,268 756
Commitments and contingencies
Stockholders' equity:
Preferred stock, $0.01 par value; 5,000,000 shares authorized in
1998 and 1997; no shares issued and outstanding -- --
Common stock, $0.01 par value; 200,000,000 shares authorized
in 1998 and 1997; 74,382,810 and 72,626,370 shares
issued and outstanding in 1998 and 1997, respectively 744 726
Additional paid-in capital 205,622 193,183
Notes receivable from stockholders (786) (835)
Retained earnings 49,739 30,646
--------- ---------
Total stockholders' equity 255,319 223,720
--------- ---------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 303,364 $ 273,293
========= =========
</TABLE>
See accompanying notes to condensed consolidated financial statements
2
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ADVANCED FIBRE COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
(In thousands, except per share data)
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended June 30, Six Months Ended June 30,
----------------------- -----------------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Revenues $ 85,345 $ 61,207 $171,089 $105,612
Cost of revenues 46,696 33,535 92,271 58,512
-------- -------- -------- --------
Gross profit 38,649 27,672 78,818 47,100
-------- -------- -------- --------
Operating expenses:
Research and development 10,429 6,440 18,741 11,290
Selling, general and administrative 18,068 9,830 32,829 17,628
-------- -------- -------- --------
Total operating expenses 28,497 16,270 51,570 28,918
-------- -------- -------- --------
Operating income 10,152 11,402 27,248 18,182
Other income, net 980 1,385 2,125 2,381
-------- -------- -------- --------
Income before income taxes 11,132 12,787 29,373 20,563
Income taxes 3,896 4,731 10,280 7,608
-------- -------- -------- --------
Net income $ 7,236 $ 8,056 $ 19,093 $ 12,955
======== ======== ======== ========
Basic net income per share $ 0.10 $ 0.12 $ 0.26 $ 0.19
======== ======== ======== ========
Shares used in basic per share computations 74,298 69,932 74,225 68,138
======== ======== ======== ========
Diluted net income per share $ 0.09 $ 0.10 $ 0.24 $ 0.17
======== ======== ======== ========
Shares used in diluted per share computations 79,741 78,246 79,608 77,422
======== ======== ======== ========
</TABLE>
See accompanying notes to condensed consolidated financial statements
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ADVANCED FIBRE COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended June 30,
------------------------
1998 1997
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CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 19,093 $ 12,955
Adjustments to reconcile net income to net cash provided from operating
activities:
Tax benefit from option exercises 8,092 8,997
Deferred incomes taxes (457) (1,324)
Depreciation and amortization 2,744 1,112
Changes in operating assets and liabilities:
Accounts receivable (8,556) (20,203)
Inventories (3,296) (10,505)
Accounts payable 2,875 8,454
Other, including other current assets and accrued liabilities (5,787) 3,938
Other, including other long-term assets and liabilities (3,440) 319
-------- --------
NET CASH PROVIDED FROM OPERATING ACTIVITIES 11,268 3,743
-------- --------
CASH FLOWS FROM INVESTING ACTIVITIES:
Net sales (purchases) of marketable securities 7,513 (15,520)
Purchase of property and equipment (16,012) (9,343)
-------- --------
NET CASH USED IN INVESTING ACTIVITIES (8,499) (24,863)
-------- --------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from exercise of common stock options and warrants 4,406 824
Proceeds from secondary offering of common stock -- 7,843
-------- --------
NET CASH PROVIDED FROM FINANCING ACTIVITIES 4,406 8,667
-------- --------
INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS 7,175 (12,453)
CASH AND CASH EQUIVALENTS, BEGINNING OF PERIOD 9,053 24,942
-------- --------
CASH AND CASH EQUIVALENTS, END OF PERIOD $ 16,228 $ 12,489
======== ========
</TABLE>
See accompanying notes to condensed consolidated financial statements
4
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ADVANCED FIBRE COMMUNICATIONS, INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 BASIS OF PRESENTATION
The accompanying unaudited condensed consolidated financial statements have been
prepared in accordance with generally accepted accounting principles for interim
financial information and pursuant to the rules and regulations of the
Securities and Exchange Commission. While these financial statements reflect all
adjustments of a normal and recurring nature which are, in the opinion of
management, necessary to present fairly the results of the interim period, they
do not include all information and footnotes required by generally accepted
accounting principles for complete financial statements. These financial
statements and notes should be read in conjunction with the financial statements
and notes thereto, for the year ended December 31, 1997, contained in the
Company's annual report on Form 10-K.
The condensed consolidated financial statements include Advanced Fibre
Communications, Inc., and its subsidiaries (the "Company"). Significant
intercompany transactions and accounts have been eliminated.
The Company operates on 13-week fiscal quarters ending on the last Saturday of
each fiscal period. For presentation purposes only, its fiscal periods are shown
as ending on the last day of the month of the respective fiscal period. The
results of operations for the three and six month periods ended June 30, 1998
are not necessarily indicative of the operating results for the full year.
NOTE 2 INVENTORIES
Inventories are valued at the lower of first-in, first-out cost or market and
consisted of the following (in thousands):
<TABLE>
<CAPTION>
June 30, December 31,
1998 1997
---------------- ----------------
<S> <C> <C>
Raw materials $ 19,414 $ 17,369
Work in progress 674 666
Finished goods 35,281 34,038
---------------- ----------------
Inventories, net $ 55,369 $ 52,073
================ ================
</TABLE>
NOTE 3 BANK BORROWINGS
In July 1998, the Company entered into a $50.0 million unsecured bank line with
two banks. The line replaces the previous $12.0 million secured bank line, and
the new line has interest rates of prime, or LIBOR plus 0.75%. The line of
credit expires in July 1999. Under the bank line, the banks may issue letters of
credit up to $10.0 million and foreign exchange contracts up to $50.0 million on
behalf of the Company. The bank line requires the Company to comply with certain
debt and financial covenants.
NOTE 4 COMMITMENTS AND CONTINGENCIES
ITRI
In September 1992, the Company entered into agreements (the "ITRI Agreements")
with the Industrial Technology Research Institute ("ITRI"), a Taiwanese
government-sponsored research and development organization, that granted to ITRI
certain license rights to the European Telecommunications Standards Institute
("ETSI") version of the Universal Modular Carrier 1000(TM) (the "UMC" system).
In 1995, a dispute arose among the Company, ITRI, and certain of ITRI's member
companies (the "Member Companies") in which the Company claimed that ITRI and
the Member Companies were, among other things, failing to pay royalties when due
under the ITRI Agreements. In reliance upon
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certain provisions of the ITRI Agreements, in April 1996, the Company ceased
delivering to the Member Companies certain proprietary application specific
integrated circuits ("ASICs") used in manufacturing the UMC system.
Pursuant to agreements with ITRI reached in 1994, the design documentation for
these ASICs were placed in a trust account, with directions that the designs
could be made available to ITRI on the occurrence of specified conditions. On
July 9, 1996, the trustee-custodian of the ASIC designs filed suit against the
Company in the United States District Court, Eastern District of New York,
alleging that the Company had not supplied all required documentation to the
trustee, and wrongfully discontinued the sale of the ASICs to the Member
Companies. Among other things, the complaint sought unspecified damages on
behalf of the trustee, and a determination that the trustee can release the ASIC
designs to ITRI. On July 31, 1996, the Company filed a counterclaim against the
trustee claiming, among other things, that the trustee improperly disclosed the
design documentation to third parties.
On July 30, 1996, the Company filed suit against ITRI and others in the United
States District Court, Northern District of California, for breach of the ITRI
Agreements, breach of covenants of good faith, trade secret misappropriation,
tortious interference, and related claims. The complaint alleged that ITRI
breached the ITRI Agreements, among other things, by failing to collect
royalties owed to the Company, by developing UMC-based products not shared with
the Company, by transferring UMC technology to an unauthorized company, and by
misappropriating the Company's trade secrets and that the ITRI Agreements have
been terminated. The Company sought recovery for lost profits and unjust
enrichment, punitive damages, and declaratory and injunctive relief. On
September 13, 1996, ITRI filed a demand for arbitration of the dispute and
claimed, among other things, that the Company had breached the ITRI Agreements
and was liable for unspecified royalties and punitive damages, and claiming
proprietary rights in certain UMC technology. On September 30, 1996, the Company
amended the complaint in its suit against ITRI to add the Member Companies and
Taiwan-based Acer Netxus, Inc. as parties to the suit.
On August 27, 1996, the Member Companies filed suit against the Company in
United States District Court, Northern District of California, alleging breach
of contract and unfair competition based on the Company's discontinuation of
ASICs sales and alleged failure to provide certain other UMC technology to the
Member Companies. The complaint filed by the Member Companies alleged that the
Company lacked justification to discontinue the sale of ASICs and that its
failure to sell ASICs to the Member Companies constituted unfair competition.
The complaint sought court-ordered arbitration, unspecified damages, punitive
damages and an injunction requiring further sales of the ASICs to the Member
Companies. On September 6, 1996, the court granted a temporary restraining order
pursuant to which the Company was required to supply the Member Companies with a
specified number of ASICs during the ensuing two month period on the terms and
conditions set forth in the ITRI Agreements. The court's order was granted as an
interim measure to preserve the status quo pending adjudication on the merits.
On September 16, 1996, the Company filed counterclaims seeking declaratory and
injunctive relief and damages against Member Companies for, among other things,
breach of contract, fraud and misappropriation of trade secrets. On September
23, 1996, the Member Companies filed a demand for arbitration of the dispute and
claimed, among other things, actual damages in excess of $60 million, legal fees
and expenses and punitive damages.
On January 23, 1997, the court granted the ITRI parties' motion to compel
arbitration, and granted, in part, the Member Companies' motion for a
preliminary injunction to require the Company to continue supplying ASICs. Under
the court's order, the case was directed to arbitration under the auspices of
the American Arbitration Association, the litigation was stayed, and the Company
was directed to continue supplying ASICs to the Member Companies as under the
prior temporary restraining order.
On or about April 8, 1997, ITRI and the Member Companies filed amended demands
for arbitration with the American Arbitration Association. On April 28, 1997,
the Company filed an answer and counterclaim in the arbitration proceeding
against ITRI, the Member Companies, and Acer Netxus, Inc., to which ITRI
purportedly assigned member company rights under the ITRI Agreements without the
Company's consent. In July 1998, Acer Netxus, Inc. filed a counterclaim against
the Company seeking unspecified damages and attorneys' fees for alleged breach
of contract and unfair competition based on the Company's refusal to sell ASICs
to Acer Netxus, Inc.
In March 1998, the Company, ITRI, the Member Companies and the trustee entered
into a definitive Settlement Agreement that resolved all claims among such
parties, except Acer Netxus, Inc. Under the Settlement Agreement, all claims
involved
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in the proceedings between such parties will be dismissed with prejudice. The
Settlement Agreement provides that the Member Companies will pay an aggregate of
$6.3 million to the Company over a five year period, and will pay the Company
royalties on the purchase of certain ASICs by the Member Companies. Under the
Settlement Agreement, the Company granted a limited license to the Member
Companies to certain of the Company's technology, agreed to sell certain ASICs
to the Member Companies, and agreed to pay $500,000 to ITRI over a three year
period for legal fees incurred by ITRI in the proceedings. The Settlement
Agreement does not grant to the Member Companies any rights to the Company's UMC
1000 Third Generation Digital Loop Carrier(TM) ("3GDLC") technology or products.
In addition, the Settlement Agreement does not affect the Company's claims
against Acer Netxus, Inc.
The Company believes that its claims and defenses against Acer Netxus, Inc. are
meritorious and intends to pursue these claims and defenses vigorously. However,
due to the nature of the claims, the Company cannot determine the total expense
or possible loss, if any, that may ultimately be incurred either in the context
of a trial, arbitration or as a result of a negotiated settlement. Regardless of
the ultimate outcome of the proceedings, it could result in significant
diversion of time by the Company's management. After consideration of the nature
of the claims and the facts relating to the proceedings, the Company believes
that the resolution of this matter will not have a material adverse effect on
the Company's business, financial condition and results of operations. However,
the results of this proceeding, including any potential settlement, are
uncertain and there can be no assurance to that effect.
DSC
On December 22, 1997, the Company filed a lawsuit in Sonoma County Superior
Court in California against DSC Communications Corporation ("DSC") related to
its hiring of a former employee of DSC, to become the Company's Vice President,
Product Planning. The Company's complaint responded to DSC's litigation threats
and sought a declaratory judgement that its hiring of the former DSC employee
was lawful.
On January 22, 1998, DSC filed a lawsuit against the Company and the former DSC
employee in the United States District Court, Eastern District of Texas,
alleging "inevitable" trade secret misappropriation and related claims. DSC also
asserted a separate claim against the Company for patent infringement alleging
that the Company's 3GDLC product infringes a DSC patent. DSC's complaint sought
unspecified damages and injunctive relief relating to the alleged
misappropriation and patent infringement, attorneys' fees and other relief. On
February 5, 1998, the United States District Court, Eastern District of Texas
granted the Company's motion to dismiss all non-patent claims in this lawsuit.
In April, 1998, DSC filed a cross-complaint against the Company in the lawsuit
filed by the Company in Sonoma County Superior Court in California that alleges
"inevitable" trade secret misappropriation and related claims, and seeks
unspecified damages, and injunctive relief relating to the alleged
misappropriation, attorneys' fees and other relief. In May 1998, the Company
filed a counterclaim against DSC in the Texas patent action alleging federal
antitrust violations, unfair competition, breach of a prior settlement agreement
and other related claims.
The Company believes that all of DSC's misappropriation and other claims related
to the hiring of the former DSC employee are without merit, and the Company
intends to defend the lawsuits vigorously. Based on the Company's review of the
patent claim, the Company believes that the Company's 3GDLC product does not
infringe the DSC patent, and that the Company has meritorious defenses to such
claim. The Company intends to vigorously defend the litigation against DSC and
prosecute its claims against DSC. However, the Company cannot predict the
ultimate outcome of these lawsuits. In addition, patent litigation is highly
complex and can extend for a protracted period of time, which can divert the
attention of the Company's management and technical personnel and require the
Company to incur substantial costs and expenses. If the patent claim were to be
resolved against the Company, this could have a material adverse effect on the
Company's business, results of operations and financial condition.
RELTEC Corporation
On November 26, 1997, the Company filed a lawsuit in Sonoma County Superior
Court in California against RELTEC Corporation, alleging trade secret
misappropriation, tortious interference with a contract, and related claims. The
case involves RELTEC's acquisition of the Company's technology through the
Company's Taiwan-based licensee, Vidar-SMS Co., Ltd. On January 21, 1998, the
Company filed for and obtained certain injunctive relief in April and May 1998
and discovery is ongoing.
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Stockholder Litigation
The Company and various of its current and former officers and directors are
parties to a number of related lawsuits which purport to be class actions filed
on behalf of certain of the Company's stockholders (excluding the defendants and
parties related to them). The lawsuits, which are substantially identical,
allege that the defendants violated certain federal securities laws.
All of these actions are in the early stages of proceedings and the Company is
currently investigating the allegations. Based on its current information, the
Company believes the suits to be without merit and intends to defend itself and
its officers and directors vigorously. Although it is reasonably possible the
Company may incur a loss upon the conclusion of these claims, an estimate of any
loss or range of loss cannot be made. No provision for any liability that may
result upon adjudication has been made in the Company's consolidated financial
statements. In the opinion of management, resolution of this matter is not
expected to have a material adverse effect on the financial position of the
Company. However, depending on the amount and timing, an unfavorable resolution
of this matter could materially affect the Company's future results or cash
flows in a particular period. In connection with these legal proceedings, the
Company expects to incur substantial legal and other expenses. Stockholder suits
of this kind are highly complex and can extend for a protracted period of time,
which can substantially increase the cost of such litigation and divert the
attention of the Company's management.
NOTE 5 NET INCOME PER SHARE
The Company adopted the provisions of Statement of Financial Accounting
Standards (SFAS) No. 128, Earnings Per Share effective December 15, 1997. SFAS
No. 128 requires the presentation of basic net income per share and, for
companies with complex capital structures, diluted net income per share. Basic
net income per share is computed using the weighted average number of shares of
common stock outstanding. Diluted net income per share is computed using the
weighted average number of shares of common stock and common equivalent shares
from options and warrants to purchase common stock using the treasury stock
method, when dilutive. The following tables set forth the computations of shares
and net income used in the calculation of basic and diluted net income per share
for the three and six months ended June 30, 1998, and 1997 (in thousands, except
per share data):
<TABLE>
<CAPTION>
THREE MONTHS ENDED JUNE 30, SIX MONTHS ENDED JUNE 30,
---------------------------------- -----------------------------------
1998 1997 1998 1997
--------------- --------------- --------------- ---------------
<S> <C> <C> <C> <C>
Basic net income per share:
Net income $ 7,236 $ 8,056 $ 19,093 $ 12,955
=============== =============== =============== ===============
Actual weighted average common shares
outstanding for the period 74,298 69,932 74,225 68,138
=============== =============== =============== ===============
Basic net income per share $ 0.10 $ 0.12 $ 0.26 $ 0.19
=============== =============== =============== ===============
Diluted net income per share:
Net income $ 7,236 $ 8,056 $ 19,093 $ 12,955
=============== =============== =============== ===============
Actual weighted average common shares
outstanding for the period 74,298 69,932 74,225 68,138
Weighted average number of shares upon
exercise of dilutive options and warrants 5,443 8,314 5,383 9,284
--------------- --------------- -------------- ---------------
Shares used in per share calculations 79,741 78,246 79,608 77,422
=============== =============== =============== ===============
Diluted net income per share $ 0.09 $ 0.10 $ 0.24 $ 0.17
=============== =============== =============== ===============
</TABLE>
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NOTE 6 COMPREHENSIVE INCOME
The Company has adopted the provisions of Statement of Financial Accounting
Standards (SFAS) No. 130, Reporting Comprehensive Income, effective for fiscal
years beginning after December 15, 1997. SFAS No. 130 requires classification of
items of other comprehensive income by nature in a financial statement and a
breakout of the accumulated balance of other comprehensive income separately
from retained earnings and additional paid in capital in the equity section of a
statement of financial position. Reporting comprehensive income provides a
measure of all changes in equity that result from recognized transactions and
other economic events of the period other than transactions with owners in their
capacity as owners. Adoption of this statement did not have a material effect on
the Company's consolidated financial position or results of operations because
there are no material differences between net income and comprehensive income in
the Company's financial statements.
NOTE 7 COMMON STOCK SPLIT
In September 1997, the stockholders approved an increase in the Company's
authorized shares of Common Stock from 100,000,000 to 200,000,000. On September
22, 1997, the Company effected a two for one stock split to stockholders of
record as of August 29, 1997. All share, per share, and Common Stock amounts
herein have been restated to reflect the effect of this split.
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ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Except for the historical financial information contained herein, the following
discussion and analysis may contain "forward looking statements" within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. Such statements include
declarations regarding the intent, belief or current expectations of the Company
and its management. Prospective investors are cautioned that any such forward
looking statements are not guarantees of future performance and involve a number
of risks and uncertainties; actual results could differ materially from those
indicated by such forward looking statements. Among the important factors that
could cause actual results to differ materially from those indicated by such
forward looking statements, as set forth below under "Certain Factors That Might
Affect Future Operating Results" are: (i) potential fluctuations in future
operating results and seasonality, (ii) risks associated with a concentrated
product line, new products and rapid technological change, (iii) customer
concentration, (iv) dependence on the telecommunications industry and small line
size market, (v) risks associated with international markets, including currency
and economic risks, (vi) risks associated with competition, (vii) dependence on
sole source and other key suppliers, (viii) dependence on a limited number of
third party manufacturers and support organizations, (ix) risks associated with
pending litigation, (x) risk of failure to manage expanding operations, (xi)
risks associated with limited protection of proprietary technology and risk of
third party claims of infringement, (xii) dependence on key personnel, (xiii)
impact of the year 2000 on operating systems, (xiv) compliance with regulations
and industry standards, and (xv) other risks identified from time to time in the
Company's reports and registration statements filed with the Securities and
Exchange Commission.
The following discussion should be read in conjunction with the Financial
Statements and Notes thereto.
GENERAL
The Company designs, develops, manufactures, markets and supports the Universal
Modular Carrier 1000(TM) (the "UMC" system), a cost effective, multi-feature
digital loop carrier system developed to serve small line size markets. The
Company's UMC system is designed to enable telephone companies and other service
providers to connect subscribers to the central office switch for voice and data
communications over copper, fiber and analog radio networks. The Company sells
its product worldwide, primarily through its direct sales force in the domestic
market, and through its direct sales force, distributors and agents in
international markets.
RESULTS OF OPERATIONS
REVENUES. For the three months ended June 30, 1998, revenues were $85.3 million
compared with $61.2 million for the same period in 1997, an increase of $24.1
million, or 39%. International revenues increased to $26.5 million in the second
quarter of 1998, compared with $14.6 million for the same period in 1997, and
represented 31.1% and 23.8% of total revenues respectively.
For the six months ended June 30, 1998, revenues were $171.1 million compared
with $105.6 million for the comparable period in 1997, an increase of $65.5
million, or 62%. International revenues increased to $56.8 million in the first
six months of 1998, compared with $28.3 million for the same period in 1997, and
represented 33.2% and 26.8% of total revenues respectively.
Revenues improved in the second quarter and the first half of 1998 primarily due
to the increase in international and domestic revenues as a result of the
continued market acceptance of the UMC 1000 Third Generation Digital Loop
CarrierTM ("3GDLC") and other new features of the UMC system, and the expansion
of the Company's customer base.
For the quarter ended June 30, 1998, Integrators of System Technology (Pty) Ltd.
in South Africa accounted for 13.0% of total revenues. For the three months
ended June 30, 1997, GTE Communication Systems Corporation ("GTE") and Sprint
Corporation ("Sprint") accounted for 17.4% and 15.5% of total revenues,
respectively. For the six months ended
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June 30, 1998, Integrators of System Technology (Pty) Ltd. accounted for 13.1%
of total revenues. For the first half of 1997, GTE and Sprint accounted for
15.5% and 11.3% of total revenues, respectively. No other customer accounted for
10% or more of total revenues in any such period. Although the Company's largest
customers have varied from period to period, the Company anticipates that its
results of operations in any given period will continue to depend to a
significant extent upon sales to a small number of customers. There can be no
assurance that the Company's principal customers will continue to purchase
product from the Company at current levels, if at all. The loss of one or more
major customers could have a material adverse effect on the Company's business,
financial condition and results of operations. For example, sales to GTE in the
three and six month periods ended June 30 of 1998 have declined significantly
since the comparable periods in 1997, and the Company expects that sales to GTE
will continue to decline in the future.
GROSS PROFIT. For the three months ended June 30, 1998, gross profit was $38.6
million, or 45.3% of total revenues, compared with $27.7 million or 45.2% of
total revenues in the same period in 1997. For the six months ended June 30,
1998, gross profit increased to $78.8 million from $47.1 million for the
comparable period of 1997, and represented 46.1% and 44.6% of total revenues,
respectively.
The improvement in gross profit margins from 1997 to 1998 for the three months
ended June 30 was due to higher royalty revenue, and lower product costs
partially offset by higher manufacturing costs. The increase in gross profit
margin for the six month period ended June 30 was due to increased royalty
revenues, the customer mix, higher margin product mix and engineering design
improvements resulting in lower costs. In the future, gross profits may
fluctuate due to a wide variety of factors, including: the mix between domestic
and international sales; the customer mix; the product mix; the timing and size
of orders which are received and can be shipped in a quarter; the availability
of adequate supplies of key components and assemblies; the adequacy of
manufacturing capacity; the Company's ability to introduce new products and
technologies on a timely basis; the timing of new product introductions or
announcements by the Company or its competitors; price competition; unit volume;
royalty revenue levels; manufacturing variances; and expanded warranty coverage.
RESEARCH AND DEVELOPMENT. For the three months ended June 30, 1998, research and
development expenses were $10.4 million, an increase of $4.0 million, or 62%
from $6.4 million for the same period in 1997. Research and development expenses
were 12.2% and 10.5% of total revenues in the second quarters of 1998 and 1997,
respectively.
For the six months ended June 30, 1998, research and development expenses were
$18.7 million, an increase of $7.4 million, or 65% from $11.3 million for the
same period in 1997. Research and development expenses were 10.9% and 10.7% of
total revenues in the six months of 1998 and 1997, respectively.
The increase in research and development expenses from 1997 to 1998 for the
three and six month periods was primarily due to the addition of personnel in
engineering, the use of outside consultants and higher costs for material and
test equipment used to develop and test new products and features. As of June
30, 1998, the number of employees in research and development was 248 compared
with 148 as of June 30, 1997, an increase of 68%. The Company expects that
research and development expenditures will generally continue to increase in
absolute dollars to support the continued development of new products and
features and the efforts to reduce product costs. All research and development
costs to date have been expensed as incurred.
SELLING, GENERAL AND ADMINISTRATIVE. For the three months ended June 30, 1998,
selling, general and administrative expenses were $18.0 million, an increase of
$8.2 million, or 84%, from $9.8 million for the same period in 1997. Selling,
general and administrative expenses were 21.2% and 16.1% of revenues in the
second quarters of 1998 and 1997, respectively.
For the six months ended June 30, 1998, selling, general and administrative
expenses were $32.8 million, an increase of $15.2 million, or 86%, from $17.6
million for the same period in 1997. Selling, general and administrative
expenses were 19.2% and 16.7% of revenues in the second quarters of 1998 and
1997, respectively.
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Additional employees and associated salaries, benefits, and recruiting costs,
higher facilities costs, use of outside services and consultants, and litigation
costs primarily accounted for the increase in general and administrative
expenses for the three and six month periods from 1997 to 1998. The increase in
sales and marketing expenses from 1997 to 1998 for the three and six month
periods ended June 30 was attributable primarily to the impact of higher revenue
levels on commissions earned by the Company's sales force and by international
distributors, additional sales and marketing personnel, related hiring costs and
increased spending on travel. Selling, general and administrative headcount
increased 76% to 353 from 201 as of June 30, 1998 and 1997, respectively.
INCOME TAXES. For the three and six months ended June 30, 1998 and 1997, the
Company recorded income taxes at an effective rate that approximated the
combined federal and state statutory rates. The effective tax rate declined from
37% in the first half of 1997 to 35% in the comparable period of 1998, primarily
due to utilization of research and development credits and benefits from the
Company's foreign sales corporation.
LIQUIDITY AND CAPITAL RESOURCES
As of June 30, 1998, the Company's cash and marketable securities totaled $104.9
million compared with $105.2 million at December 31, 1997.
Net cash of $11.3 million was provided by operating activities in the first six
months of 1998. This was primarily the result of net income and the tax benefit
obtained from stock option exercises, partially offset by higher receivable and
inventory levels. Net cash of $8.5 million was used in investing activities
through purchasing property and equipment partially offset by sales of
marketable securities. The Company continues to invest in capital equipment to
support its employee and facility growth and its research and development and
manufacturing activities.
The Company obtained a $50.0 million unsecured bank line with two banks,
commencing in July 1998. The line has interest rates of prime, or LIBOR plus
0.75%. The line of credit expires in July 1999. Under the bank line, the banks
may issue letters of credit up to $10.0 million and foreign exchange contracts
up to $50.0 million on behalf of the Company. The bank line requires the Company
to comply with certain debt and financial covenants.
The Company had a $12.0 million secured bank line which was replaced by the
unsecured $50.0 million bank line in July, 1998. The former line had an interest
rate of prime plus 0.5%, and the amount available for borrowing under the line
was based upon the balance of eligible domestic accounts receivable at the time
of borrowing. Under the former line, the bank was able to issue letters of
credit up to $10.0 million and foreign exchange contracts up to $5.0 million on
behalf of the Company. The bank line required the Company to comply with certain
debt and financial covenants. As of June 30, 1998, $1,442,000 was reserved for
letters of credit under the line, and $4,395,000 was reserved for foreign
exchange contracts under the line.
The Company also has lease lines totaling $8.4 million that were used for
equipment and furniture purchases.
The Company believes that its existing cash and short term investments,
available credit facilities and cash flows will be adequate to support the
Company's financial resource needs, including working capital requirements,
capital expenditures and operating lease obligations for the next twelve months.
CERTAIN FACTORS THAT MIGHT AFFECT FUTURE OPERATING RESULTS
In addition to the other information in this Quarterly Report on Form 10-Q, the
following are important factors that should be considered in evaluating the
Company and its business.
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POTENTIAL FLUCTUATIONS IN FUTURE OPERATING RESULTS AND SEASONALITY. Although the
Company first achieved profitability in the second quarter of 1995, it recorded
a net loss in the second quarter of 1996 due to charges associated with the
settlement of litigation with DSC Communications Corporation. There can be no
assurance that the Company will sustain or increase its profitability in the
future. The Company's operating results have been, and will continue to be,
affected by a wide variety of factors, some of which are outside of the
Company's control, that could have a material adverse effect on revenues and
results of operations during any particular period. These factors include: the
mix between domestic and international sales; the customer mix; the product mix;
the timing and size of orders which are received and can be shipped in a
quarter; the availability of adequate supplies of key components and assemblies;
the adequacy of manufacturing capacity; the Company's ability to introduce new
products and technologies on a timely basis; the timing of new product
introductions or announcements by the Company or its competitors; price
competition; unit volume; royalty revenue levels; manufacturing variances; and
expanded warranty coverage.
The UMC system is sold primarily to telephone companies that install the UMC
system as part of their access networks. Additions to those networks represent
complex engineering projects which can require from three to twelve months from
project conceptualization to completion. The UMC system typically represents
only a portion of a given project and, therefore, the timing of product shipment
and revenue recognition is often difficult to forecast. The Company's customers
normally install a portion of the UMC system in outdoor locations. Shipments of
the UMC system are subject to the effects of seasonality, with fewer
installation projects scheduled for the winter months. In developing countries,
delays and reductions in the planned project deployment can be caused by
additional factors, including currency fluctuations, reductions in capital
availability due to declines in the local economy, priority changes in the
government's budget, political environment and delays in receiving government
approval for deployment of the UMC system in the local loop.
The Company's expenditures for research and development, marketing and sales,
and general and administrative functions are based in part on future revenue
projections and in the near term are relatively fixed. The Company may be unable
to adjust spending in a timely manner in response to any unanticipated failure
to meet these revenue projections. Accordingly, any significant decline in
demand for the UMC system relative to planned levels could have a material
adverse effect on the Company's business, financial condition and results of
operations in that quarter or subsequent quarters.
All of the above factors are difficult to forecast, and these or other factors
could have a material adverse effect on the Company's business, financial
condition and results of operations. As a result, the Company believes that
period to period comparisons are not necessarily meaningful and should not be
relied upon as indications of future performance. Fluctuations in the Company's
operating results may cause volatility in the price of the Company's Common
Stock. Further, it is likely that in some future quarter the Company's revenues
or operating results will be below the expectations of public market analysts
and/or investors. In such event, the market price of the Company's Common Stock
would likely be materially adversely affected. Recent periods of volatility in
the market price of the Company's securities resulted in stockholder litigation
against the Company and various officers and directors. Such litigation could
result in substantial costs and a diversion of management's attention and
resources, which would have a material adverse effect on the operating results
and financial condition of the Company. See "Part II, Item 1 - Legal
Proceedings".
CONCENTRATED PRODUCT LINE, NEW PRODUCTS AND RAPID TECHNOLOGICAL CHANGE. The
Company currently derives substantially all of its revenues from the UMC system
and expects that this concentration will continue in the foreseeable future. As
a result, any decrease in the overall level of sales of, or the prices for, the
UMC system due to product enhancements, introductions or announcements by the
Company's competitors, a decline in the demand for the UMC system, product
obsolescence or any other reason could have a material adverse effect on the
Company's business, financial condition and results of operations.
The telecommunications equipment market is characterized by rapidly changing
technology, evolving industry standards, changes in end-user requirements, and
frequent new product introductions and enhancements. The
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introduction of products embodying new technologies or the emergence of new
industry standards can render existing products obsolete or unmarketable. The
Company's success will depend upon its ability to enhance the UMC technology and
to develop and introduce, on a timely basis, new products and feature
enhancements that keep pace with technological developments and emerging
industry standards and address changing customer requirements in a
cost-effective manner. There can be no assurance that the Company will be
successful in identifying, developing, manufacturing, and marketing new products
or product enhancements that respond to technological change or evolving
industry standards. Additionally, there can be no assurance that the Company
will not experience difficulties that could delay or prevent the successful
development, introduction and marketing of these products and enhancements, or
that its new products or enhancements will adequately meet the requirements of
the marketplace and achieve market acceptance. Furthermore, from time to time,
the Company may announce new products or enhancements, services or technologies
that have the potential to replace or shorten the life cycle of the UMC system
and that may cause customers to defer purchasing the UMC system. There can be no
assurance that future technological advances in the telecommunications industry
will not diminish market acceptance of the UMC system or render the UMC system
obsolete and, thereby, materially adversely affect the Company's business,
financial condition and results of operations.
The Company has experienced delays in completing development and introduction of
new products, product variations and feature enhancements, and there can be no
assurance that such delays will not continue or recur in the future.
Furthermore, the UMC system contains a significant amount of complex hardware
and software that may contain undetected or unresolved errors as products are
introduced or as new versions are released. The Company has in the past
discovered technical difficulties in certain UMC system installations. There can
be no assurance that despite significant testing by the Company, hardware or
software errors will not be found in the UMC system after commencement of
shipments, resulting in delays in, or cancellation of, customer orders or in the
loss of market acceptance, any of which could have a material adverse effect on
the Company's business, financial condition and results of operations.
CUSTOMER CONCENTRATION. For the six months ended June 30, 1998, approximately
13.1% of the Company's total revenues were derived from sales to Integrators of
System Technology (Pty) Ltd. in South Africa. For the six months ended June 30,
1997, GTE and Sprint accounted for 15.5% and 11.3% of total revenues,
respectively. No other single customer accounted for 10% or more of total
revenues in any such period. For the six months ended June 30, 1998 and 1997,
the Company's five largest customers accounted for approximately 45% and 44% of
revenues, respectively. Although the Company's largest customers have varied
from period to period, the Company anticipates that its results of operations in
any given period will continue to depend to a significant extent upon sales to a
small number of customers. None of the Company's customers have entered into
agreements requiring them to purchase a minimum amount of product from the
Company. There can be no assurance that the Company's principal customers will
continue to purchase product from the Company at current levels, if at all. In
addition, in the event that a significant existing customer of the Company is
merged with another telecommunications company, there can be no assurance that
such customer will continue to purchase the Company's products. The loss of one
or more major customers could have a material adverse effect on the Company's
business, financial condition and results of operations. For example, sales to
GTE in the three and six month periods ended June 30 of 1998 have declined
significantly since the comparable periods in 1997, and the Company expects that
sales to GTE will continue to decline in the future.
DEPENDENCE ON TELECOMMUNICATIONS INDUSTRY AND SMALL LINE SIZE MARKET. The
Company's customers are concentrated in the public carrier telecommunications
industry and in the U.S. market include: the Regional Bell Operating Companies,
Competitive Local Exchange Carriers, National Local Exchange Carriers, and
Independent Local Exchange Carriers. Accordingly, the Company's future success
depends upon the capital spending patterns of such customers and the continued
demand by such customers for the UMC system. The target markets for the UMC
system are the small line size markets of the U.S. and developing countries.
Historically, these markets have had little access to the advanced services that
can be made available through the UMC system and, accordingly, there can be no
assurance that potential customers will consider the near term value of these
advanced services to be sufficient to influence their purchase decisions.
Furthermore, there can be no assurance that the UMC system will find widespread
acceptance among the telephone companies and other potential customers in small
line size markets or that such
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customers and potential customers will not adopt alternative architectures or
technologies that are incompatible with the UMC technology, which would have a
material adverse effect on the Company's business, financial condition and
results of operations. In addition, there can be no assurance that telephone
companies, foreign governments or other customers will pursue infrastructure
upgrades that will necessitate the implementation of advanced products such as
the UMC system. Infrastructure improvements requiring the Company's or similar
technology may be delayed or prevented by a variety of factors, including cost,
regulatory obstacles, the lack of consumer demand for advanced
telecommunications services and alternative approaches to service delivery.
RISKS ASSOCIATED WITH INTERNATIONAL MARKETS. International sales constituted
33.2% and 26.8% of the Company's total revenues for the six months ended June
30, 1998 and 1997, respectively. International sales have fluctuated in absolute
dollars and as a percentage of revenues, and are expected to continue to
fluctuate in future periods. The Company relies on a number of third party
distributors and agents to market and sell the UMC system outside of North
America. There can be no assurance that such distributors or agents will provide
the support and effort necessary to service international markets effectively.
The Company is expanding its existing international operations and is entering
new international markets, which demand significant management attention and
financial commitment. There can be no assurance that the Company will continue
to successfully expand its international operations. In addition, a successful
expansion by the Company of its international operations and sales in certain
markets may depend on the Company's ability to establish and maintain productive
strategic relationships. There can be no assurance that the Company will be able
to identify suitable parties for joint ventures or strategic relationships or,
even if such parties are identified, that successful joint ventures or strategic
relationships will result. Moreover, there can be no assurance that the Company
will be able to increase international sales of the UMC system through strategic
relationships or joint ventures. The failure to do so could significantly limit
the Company's ability to expand its international operations and could adversely
affect the Company's business, financial condition and results of operations.
International telephone companies are in many cases owned or strictly regulated
by local authorities. Access to such markets is often difficult due to the
established relationships between a government owned or controlled telephone
company and its traditional indigenous suppliers of telecommunications
equipment. Many of these companies require extended payment terms and financing
options which increase the risk of nonpayment and may have a material adverse
effect on the Company's cash flows. In addition, customers in certain
international markets require the Company to post bid and performance bonds and
could cause the Company to incur contract penalties should it fail to meet
production and delivery time schedules on large orders. The failure of the
Company to meet these schedules could result in the loss of collateral posted
for the bonds or financial penalties which could adversely affect the Company's
business, financial condition and results of operations.
Currently, the Company's international sales are primarily U.S. dollar
denominated. As a result, an increase in the value of the U.S. dollar relative
to foreign currencies could make the Company's products less competitive in
international markets. Failure to meet revenue projections in the international
market could adversely affect the Company's business, financial condition and
results of operations.
Operating in international markets subjects the Company to certain additional
risks, including unexpected changes in regulatory requirements, political and
economic conditions, tariffs or other barriers, difficulties in staffing and
managing international operations, exchange rate fluctuations, potential
exchange and repatriation controls on foreign earnings, potentially negative tax
consequences, longer sales and payment cycles and difficulty in accounts
receivable collection. For example, the Asia Pacific region's economy has
deteriorated recently resulting in the devaluation of currencies in certain of
the countries of this region. There can be no assurance that decreases in
foreign countries' economic conditions or exchange rates won't have a material
adverse effect on the Company's business, financial condition or results of
operations. In addition, any inability to obtain local regulatory approval could
delay or prevent entrance into international markets, which could materially
impact the Company's business, financial condition and results of operations. In
order to compete in international markets, the Company will need to comply with
various regulations and standards.
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COMPETITION. The market for equipment for local telecommunications networks is
extremely competitive. The Company's competitors range from small companies,
both domestic and international, to large multinational corporations. The
Company's principal competitors include: Alcatel Alsthom Compagnie Generale
d'Electricite, DSC Communications Corporation, Ericsson Inc., Fujitsu America,
Inc., Hitron Technology, Inc., Huawei Technologies Co. Ltd., Lucent
Technologies, Inc., NEC America, Inc., Nokia Telecommunications, Northern
Telecom Ltd., Opnet Technologies Co. Ltd., RELTEC Corporation, Shenzhen
Zhongxing Telecom Corporation, Ltd., Teledata Communications Ltd., UT Starcom,
Inc. and Vidar-SMS Co. Ltd. Many of these competitors have more extensive
financial, marketing and technical resources than the Company and enjoy superior
name recognition in the market. In addition, pursuant to the Settlement
Agreement recently entered into and related agreements with the Industrial
Technology Research Institute ("ITRI"), certain of its member companies have
been granted certain rights to manufacture and sell the European
Telecommunications Standards Institute ("ETSI") version of the UMC system
outside of North America. Such entities currently compete with the Company in
international markets, primarily in China. In addition, upon termination of
certain restrictions set forth in such agreements, in January 2005, such member
companies will have a worldwide, non-exclusive, royalty-free, irrevocable
license to use certain UMC technology and, consequently, such member companies
will be able to compete with the Company worldwide at such time. There is an
ongoing dispute subject to litigation between the Company and Acer Netxus, Inc.,
as to, among other things, whether Acer Netxus, Inc. possesses a valid license
to manufacture and sell the ETSI version of the UMC system as an ITRI member
company. Depending on the outcome of this dispute, the Company may face
competition from Acer Netxus, Inc., for the ETSI version of the UMC system. The
Company believes rapid technological change, continuing regulatory change and
industry consolidation will continue to cause rapid evolution in the competitive
environment of the telecommunications equipment market, the full scope and
nature of which is difficult to predict. Moreover, the Company believes that
technological and regulatory change will continue to make the markets in which
the Company competes, attractive to new entrants. There can be no assurance that
the Company will be able to compete successfully in the future. See "Part II,
Item 1 - Legal Proceedings."
DEPENDENCE ON SOLE SOURCE AND OTHER KEY SUPPLIERS. Certain components used in
the Company's products, including the Company's proprietary application specific
integrated circuits ("ASICs"), codec components, certain surface mount
technology components and other components, are only available from a single
source or limited number of suppliers. In particular, the Company relies on AMI
American Microsystems, Inc. to manufacture ASICs. Some of the Company's sole
source suppliers are companies which from time to time allocate parts to
telephone equipment manufacturers due to market demand for telecommunications
components and equipment. Many of the Company's competitors are much larger and
may be able to obtain priority allocations from these shared suppliers, thereby
limiting or making unreliable the sources of supply for these components. There
can be no assurance that shortages of components will not occur in the future or
will not result in the Company having to pay a higher price for components. If
the Company is unable to obtain sufficient quantities of these or any other
components, delays or reductions in manufacturing or product shipments could
occur which would have a material adverse effect on the Company's business,
financial condition and results of operations.
DEPENDENCE ON LIMITED NUMBER OF THIRD PARTY MANUFACTURERS AND SUPPORT
ORGANIZATIONS. The Company relies on a limited number of independent contractors
to manufacture the subassemblies to the Company's specifications for use in the
Company's products. In particular, the Company relies on: (i) Flextronics
International Ltd. and Solectron Inc. to manufacture the Company's printed
circuit board assemblies ("PCBAs"), (ii) Siemens Microelectronics, Inc. for PCBA
components, (iii) Paragon, Inc., and Tyco Printed Circuit Group Inc. to
manufacture backplanes and channel bank assemblies ("CBAs"), (iv) AMI American
Microsystems, Inc. for ASICs, and (v) Sonoma Metal Products, Inc., Cowden Metal
San Jose, Inc., and Inventronics Limited to manufacture the external housing
cabinets. In the event that the Company's subcontractors were to experience
financial, operational, production, or quality assurance difficulties that
resulted in a reduction or interruption in supply to the Company or otherwise
failed to meet the Company's manufacturing requirements, the Company's business,
financial condition and results of operations would be adversely affected until
the Company established sufficient manufacturing supply from alternative
sources. There can be no assurance that the Company's current or alternative
manufacturers will be able to meet the Company's future
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requirements or that such manufacturing services will continue to be available
to the Company at favorable prices, or at all.
The Company also relies on various third party support organizations to provide
post sales support to the Company's domestic sales customers. There can be no
assurance that these organizations will be able to provide the level of customer
support demanded by the Company's existing or potential customers. The Company
has completed the process of bringing its 24 hour on line technical support
services in house to improve quality and responsiveness of service, while the
third party organizations continue to provide field support. There can be no
assurance that this transition will not adversely affect current technical and
post sales support functions.
RISKS ASSOCIATED WITH PENDING LITIGATION. The Company is a party to certain
legal proceedings as described in "Part II, Item 1 - Legal Proceedings." The
Company is unable to predict the ultimate outcome of these proceedings or
determine the total expense or possible loss, if any, that may ultimately be
incurred in the resolution of these proceedings. Regardless of the ultimate
outcome of these proceedings, they could result in significant diversion of time
by the Company's management. See "Part II, Item 1 - Legal Proceedings."
RISK OF FAILURE TO MANAGE EXPANDING OPERATIONS. The Company has experienced a
period of rapid growth, which has placed and could continue to place, a
significant strain on the Company's management, operational, financial and other
resources. The members of the Company's management team have limited experience
in the management of rapidly growing companies. To effectively manage the recent
growth as well as any future growth, the Company will need to recruit, train,
assimilate, motivate and retain qualified managers and employees. Management of
potential future growth required the Company to evaluate, purchase, and
implement a new management and accounting system effective November 1997.
Information systems expansion or replacement can be a complex, costly and time
consuming process, and there can be no assurance that the Company's system
transition and further implementation can be accomplished without disruption of
the Company's business. Any business disruption or other system transition
difficulties could have a material adverse effect on the Company's business,
financial condition and results of operations. The failure of the Company to
effectively manage its domestic and international operations or any current or
future growth could have a material adverse effect on the Company's business,
financial condition and results of operations. The Company's results of
operations will be adversely affected if revenues do not increase sufficiently
to compensate for the increase in operating expenses resulting from any
expansion.
In February 1998, the Company moved its domestic manufacturing and distribution
operations into a new facility to double capacity and increase efficiency.
Although the Company expanded its operational capacity, there can be no
assurance that the transition and further utilization of the new facility will
continue without interruption, or that any such interruption will not have a
material adverse effect on the Company's business, manufacturing and
distribution functions.
LIMITED PROTECTION OF PROPRIETARY TECHNOLOGY; RISK OF THIRD PARTY CLAIMS OF
INFRINGEMENT. The Company attempts to protect its technology through a
combination of copyrights, trade secret laws, contractual obligations, and
patents. The Company does not presently hold any patents for its existing
products, but has two patent applications pending. There can be no assurance
that the Company's intellectual property protection measures will be sufficient
to prevent misappropriation of the Company's technology or that the Company's
competitors will not independently develop technologies that are substantially
equivalent or superior to the Company's technology. In addition, the laws of
many foreign countries do not protect the Company's intellectual property rights
to the same extent as the laws of the U.S. The failure of the Company to protect
its proprietary information could have a material adverse effect on the
Company's business, financial condition and results of operations. The Company
is currently involved in a dispute with RELTEC Corporation regarding, among
other things, alleged trade secret misappropriation. See "Part II, Item 1 -
Legal Proceedings."
The increasing dependence of the telecommunications industry on proprietary
technology has resulted in frequent litigation based on allegations of the
infringement of patents and other intellectual property. In June 1996, the
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Company settled litigation with DSC under which DSC had claimed proprietary
rights to the UMC technology. In January 1998, DSC filed a lawsuit against the
Company alleging, among other things, that the Company's 3GDLC product infringes
a DSC patent. See "Part II, Item 1 - Legal Proceedings." In the future, the
Company may be subject to additional litigation to defend against claimed
infringements of the rights of others or to determine the scope and validity of
the proprietary rights of others. Future litigation also may be necessary to
enforce and protect trade secrets and other intellectual property rights owned
by the Company. Any such litigation could be costly and cause diversion of
management's attention, either of which could have a material adverse effect on
the Company's business, financial condition and results of operations. Adverse
determinations in such litigation could result in the loss of the Company's
proprietary rights, subject the Company to significant liabilities, require the
Company to seek licenses from third parties, or prevent the Company from
manufacturing or selling its products, any one of which could have a material
adverse effect on the Company's business, financial condition and results of
operations. Furthermore, there can be no assurance that any necessary licenses
will be available on reasonable terms.
DEPENDENCE ON KEY PERSONNEL. The Company's success depends to a significant
extent upon key technical and management employees. The loss of the services of
any of these key employees of the Company could have a material adverse effect
on the Company's business, financial condition and results of operations. The
Company does not have employment agreements with, or key person life insurance
for, any of its employees. Competition for highly qualified employees is intense
and the process of locating key technical and management personnel with the
combination of skills and attributes required to execute the Company's strategy
is often lengthy. There can be no assurance that the Company will be successful
in retaining its existing key personnel or in attracting and retaining the
additional employees it may require.
In June 1998, the Company's President, Chief Executive Officer, Carl Grivner,
resigned and the Company's Chairman and founder, Don Green, assumed the role of
President and Chief Executive Officer on an interim basis. The Company is
currently engaged in a search for a new President and Chief Executive Officer.
There can be no assurance that the Company will be successful in identifying and
hiring a new President and Chief Executive Officer on a timely basis or as to
the effect that this management transition will have on the Company's business,
financial condition and results of operations.
YEAR 2000. The Company believes that it has adequately addressed the year 2000
issue by utilizing operating systems and software applications that were
designed and developed to properly reflect the year 2000 and subsequent years'
data. Although the Company believes that its products and systems are year 2000
compliant, the Company's manufacturing suppliers may utilize equipment or
software that is not year 2000 compliant. The failure on the part of any
supplier to adequately address its own year 2000 compliance issues could lead to
delays on the part of the supplier in the delivery of subassemblies for use in
the Company's products, which could have a material adverse effect on the
Company's business, financial condition and results of operations.
COMPLIANCE WITH REGULATIONS AND INDUSTRY STANDARDS. The UMC system is required
to comply with a large number of voice and data regulations and standards, which
vary between domestic and international markets, and may vary by the specific
international market into which the Company sells its products. Standards
setting and compliance verification in the U.S. are determined by the Federal
Communications Commission ("FCC"), Underwriters Laboratories, Bell
Communications Research ("Bellcore"), other independent third party testing
organizations, and by independent telephone companies. In international markets,
the Company's products must comply with recommendations issued by the
Consultative Committee on International Telegraph and Telephony and individual
regional carriers' network operating system requirements and specifications. In
addition, the Company's products must comply with standards issued by the
European Telecommunications Standards Institute and implemented and enforced by
the Telecommunications Regulatory Authority of each European nation. Standards
for new services continue to evolve, and the Company will be required to modify
its products or develop and support new versions of its products to meet these
standards. The failure of the Company's products to comply, or delays in meeting
compliance, with the evolving standards both in its domestic and international
markets could have a material adverse effect on the Company's business,
financial condition and results of operations.
In addition, the Company will need to ensure that its products are easily
integrated with the carriers' network management systems. The Regional Bell
Operating Companies ("RBOCs"), which represent a large segment of the
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U.S. telecommunications market, in many cases require equipment integrated into
their networks to be tested by Bellcore, indicating that the products are
interoperable with the operations, administration, maintenance and provisioning
systems used by the RBOCs to manage their networks. Bellcore testing requires
significant investments in resources to achieve compliance. The failure to
maintain such compliance or to obtain it on new features released in the future
could have a material adverse effect on the Company's business, financial
condition and results of operations.
In October 1997, Underwriters Laboratories officially registered the Company to
ISO 9001, ANSI/ASQC Q9001 which assures quality in design, development,
production, installation and servicing. The ISO 9001 international standard
consists of all elements which define a quality system aimed primarily at
achieving customer satisfaction by preventing nonconformity at all stages from
design through servicing. There can be no assurance that the Company will
maintain such certification. The failure to maintain such certification may
preclude the Company from selling the UMC system in certain markets and could
materially adversely affect the Company's ability to compete with other
suppliers of telecommunications equipment.
Failure to maintain interoperability with other companies or adopt or maintain
industry standards in the Company's product line could have a material adverse
effect on the Company's ability to compete with other telecommunications
equipment suppliers, and could materially adversely affect its business,
financial condition and results of operations.
The U.S. Congress recently passed new regulations that affect telecommunications
services, including changes to pricing, access by competitive suppliers and many
other broad changes to the data and telecommunications networks and services.
These changes will have a major impact on the pricing of existing services, and
may affect the deployment of future services. These changes could cause greater
consolidation in the telecommunications industry, which in turn could disrupt
existing customer relationships and have a material adverse effect on the
Company's business, financial condition and results of operations. There can be
no assurance that any regulatory changes will not have a material adverse effect
on the demand for the UMC system. Uncertainty regarding future policies combined
with emerging new competition may also affect the demand for telecommunications
products such as the UMC system.
19
<PAGE> 21
PART II. OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
ITRI
In September 1992, the Company entered into agreements (the "ITRI Agreements")
with the Industrial Technology Research Institute ("ITRI"), a Taiwanese
government-sponsored research and development organization, that granted to ITRI
certain license rights to the European Telecommunications Standards Institute
("ETSI") version of the Universal Modular Carrier 1000(TM) ("UMC system"). In
1995, a dispute arose among the Company, ITRI, and certain of ITRI's member
companies (the "Member Companies") in which the Company claimed that ITRI and
the Member Companies were, among other things, failing to pay royalties when due
under the ITRI Agreements. In reliance upon certain provisions of the ITRI
Agreements, in April 1996, the Company ceased delivering to the Member Companies
certain proprietary application specific integrated circuits ("ASICs") used in
manufacturing the UMC system.
Pursuant to agreements with ITRI reached in 1994, the design documentation for
these ASICs were placed in a trust account, with directions that the designs
could be made available to ITRI on the occurrence of specified conditions. On
July 9, 1996, the trustee-custodian of the ASIC designs filed suit against the
Company in the United States District Court, Eastern District of New York,
alleging that the Company had not supplied all required documentation to the
trustee, and wrongfully discontinued the sale of the ASICs to the Member
Companies. Among other things, the complaint sought unspecified damages on
behalf of the trustee, and a determination that the trustee can release the ASIC
designs to ITRI. On July 31, 1996, the Company filed a counterclaim against the
trustee claiming, among other things, that the trustee improperly disclosed the
design documentation to third parties.
On July 30, 1996, the Company filed suit against ITRI and others in the United
States District Court, Northern District of California, for breach of the ITRI
Agreements, breach of covenants of good faith, trade secret misappropriation,
tortious interference, and related claims. The complaint alleged that ITRI
breached the ITRI Agreements, among other things, by failing to collect
royalties owed to the Company, by developing UMC-based products not shared with
the Company, by transferring UMC technology to an unauthorized company, and by
misappropriating the Company's trade secrets and that the ITRI Agreements have
been terminated. The Company sought recovery for lost profits and unjust
enrichment, punitive damages, and declaratory and injunctive relief. On
September 13, 1996, ITRI filed a demand for arbitration of the dispute and
claimed, among other things, that the Company had breached the ITRI Agreements
and was liable for unspecified royalties and punitive damages, and claiming
proprietary rights in certain UMC technology. On September 30, 1996, the Company
amended the complaint in its suit against ITRI to add the Member Companies and
Taiwan-based Acer Netxus, Inc. as parties to the suit.
On August 27, 1996, the Member Companies filed suit against the Company in
United States District Court, Northern District of California, alleging breach
of contract and unfair competition based on the Company's discontinuation of
ASICs sales and alleged failure to provide certain other UMC technology to the
Member Companies. The complaint filed by the Member Companies alleged that the
Company lacked justification to discontinue the sale of ASICs and that its
failure to sell ASICs to the Member Companies constituted unfair competition.
The complaint sought court-ordered arbitration, unspecified damages, punitive
damages and an injunction requiring further sales of the ASICs to the Member
Companies. On September 6, 1996, the court granted a temporary restraining order
pursuant to which the Company was required to supply the Member Companies with a
specified number of ASICs during the ensuing two month period on the terms and
conditions set forth in the ITRI Agreements. The court's order was granted as an
interim measure to preserve the status quo pending adjudication on the merits.
On September 16, 1996, the Company filed counterclaims seeking declaratory and
injunctive relief and damages against Member Companies for, among other things,
breach of contract, fraud and misappropriation of trade secrets. On September
23, 1996, the Member Companies filed a demand for arbitration of the dispute and
claimed, among other things, actual damages in excess of $60 million, legal fees
and expenses and punitive damages.
20
<PAGE> 22
On January 23, 1997, the court granted the ITRI parties' motion to compel
arbitration, and granted, in part, the Member Companies' motion for a
preliminary injunction to require the Company to continue supplying ASICs. Under
the court's order, the case was directed to arbitration under the auspices of
the American Arbitration Association, the litigation was stayed, and the Company
was directed to continue supplying ASICs to the Member Companies as under the
prior temporary restraining order.
On or about April 8, 1997, ITRI and the Member Companies filed amended demands
for arbitration with the American Arbitration Association. On April 28, 1997,
the Company filed an answer and counterclaim in the arbitration proceeding
against ITRI, the Member Companies, and Acer Netxus, Inc., to which ITRI
purportedly assigned member company rights under the ITRI Agreements without the
Company's consent. In July 1998, Acer Netxus, Inc. filed a counterclaim against
the Company seeking unspecified damages and attorneys' fees for alleged breach
of contract and unfair competition based on the Company's refusal to sell ASICs
to Acer Netxus, Inc.
In March 1998, the Company, ITRI, the Member Companies and the trustee entered
into a definitive Settlement Agreement that resolved all claims among such
parties, except Acer Netxus, Inc. Under the Settlement Agreement, all claims
involved in the proceedings between such parties will be dismissed with
prejudice. The Settlement Agreement provides that the Member Companies will pay
an aggregate of $6.3 million to the Company over a five year period, and will
pay the Company royalties on the purchase of certain ASICs by the Member
Companies. Under the Settlement Agreement, the Company granted a limited license
to the Member Companies to certain of the Company's technology, agreed to sell
certain ASICs to the Member Companies, and agreed to pay $500,000 to ITRI over a
three year period for legal fees incurred by ITRI in the proceedings. The
Settlement Agreement does not grant to the Member Companies any rights to the
Company's UMC 1000 Third Generation Digital Loop Carrier(TM) ("3GDLC")
technology or products. In addition, the Settlement Agreement does not affect
the Company's claims against Acer Netxus, Inc.
The Company believes that its claims and defenses against Acer Netxus, Inc. are
meritorious and intends to pursue these claims and defenses vigorously. However,
due to the nature of the claims, the Company cannot determine the total expense
or possible loss, if any, that may ultimately be incurred either in the context
of a trial, arbitration or as a result of a negotiated settlement. Regardless of
the ultimate outcome of the proceedings, it could result in significant
diversion of time by the Company's management. After consideration of the nature
of the claims and the facts relating to the proceedings, the Company believes
that the resolution of this matter will not have a material adverse effect on
the Company's business, financial condition and results of operations. However,
the results of this proceeding, including any potential settlement, are
uncertain and there can be no assurance to that effect.
DSC
On December 22, 1997, the Company filed a lawsuit in Sonoma County Superior
Court in California against DSC Communications Corporation ("DSC") related to
its hiring of a former employee of DSC, to become the Company's Vice President,
Product Planning. The Company's complaint responded to DSC's litigation threats
and sought a declaratory judgement that its hiring of the former DSC employee
was lawful.
On January 22, 1998, DSC filed a lawsuit against the Company and the former DSC
employee in the United States District Court, Eastern District of Texas,
alleging "inevitable" trade secret misappropriation and related claims. DSC also
asserted a separate claim against the Company for patent infringement alleging
that the Company's 3GDLC product infringes a DSC patent. DSC's complaint sought
unspecified damages and injunctive relief relating to the alleged
misappropriation and patent infringement, attorneys' fees and other relief. On
February 5, 1998, the United States District Court, Eastern District of Texas
granted the Company's motion to dismiss all non-patent claims in this lawsuit.
In April, 1998, DSC filed a cross-complaint against the Company in the lawsuit
filed by the Company in Sonoma County Superior Court in California that alleges
"inevitable" trade secret misappropriation and related claims, and seeks
unspecified damages, and injunctive relief relating to the alleged
misappropriation, attorneys' fees and other
21
<PAGE> 23
relief. In May 1998, the Company filed a counterclaim against DSC in the Texas
patent action alleging federal antitrust violations, unfair competition, breach
of a prior settlement agreement and other related claims.
The Company believes that all of DSC's misappropriation and other claims related
to the hiring of the former DSC employee are without merit, and the Company
intends to defend the lawsuits vigorously. Based on the Company's review of the
patent claim, the Company believes that the Company's 3GDLC product does not
infringe the DSC patent, and that the Company has meritorious defenses to such
claim. The Company intends to vigorously defend the litigation against DSC and
prosecute its claims against DSC. However, the Company cannot predict the
ultimate outcome of these lawsuits. In addition, patent litigation is highly
complex and can extend for a protracted period of time, which can divert the
attention of the Company's management and technical personnel and require the
Company to incur substantial costs and expenses. If the patent claim were to be
resolved against the Company, this could have a material adverse effect on the
Company's business, results of operations and financial condition.
RELTEC Corporation
On November 26, 1997, the Company filed a lawsuit in Sonoma County Superior
Court in California against RELTEC Corporation, alleging trade secret
misappropriation, tortious interference with a contract, and related claims. The
case involves RELTEC's acquisition of the Company's technology through the
Company's Taiwan-based licensee, Vidar-SMS Co., Ltd. On January 21, 1998, the
Company filed for and obtained certain injunctive relief in April and May 1998
and discovery is ongoing.
Stockholder Litigation
The Company and various of its current and former officers and directors are
parties to a number of related lawsuits which purport to be class actions filed
on behalf of certain of the Company's stockholders (excluding the defendants and
parties related to them). The lawsuits, which are substantially identical,
allege that the defendants violated certain federal securities laws.
All of these actions are in the early stages of proceedings and the Company is
currently investigating the allegations. Based on its current information, the
Company believes the suits to be without merit and intends to defend itself and
its officers and directors vigorously. Although it is reasonably possible the
Company may incur a loss upon the conclusion of these claims, an estimate of any
loss or range of loss cannot be made. No provision for any liability that may
result upon adjudication has been made in the Company's consolidated financial
statements. In the opinion of management, resolution of this matter is not
expected to have a material adverse effect on the financial position of the
Company. However, depending on the amount and timing, an unfavorable resolution
of this matter could materially affect the Company's future results or cash
flows in a particular period. In connection with these legal proceedings, the
Company expects to incur substantial legal and other expenses. Stockholder suits
of this kind are highly complex and can extend for a protracted period of time,
which can substantially increase the cost of such litigation and divert the
attention of the Company's management.
ITEM 2. CHANGES IN SECURITIES AND USE OF PROCEEDS:
(a) ISSUANCE OF UNREGISTERED SECURITIES
Between April 1, 1998 and June 30, 1998, the Company issued and sold the
following securities which were not registered under the Securities Act of 1933
("Securities Act"): the Company issued and sold an aggregate of 19,705 shares of
Common Stock upon the net exercise of warrants to one person for aggregate
consideration of 295 shares of Common Stock.
The sale and issuance of securities in the transaction described above was
deemed to be exempt from registration under the Securities Act in reliance upon
Section 4(2) of the Securities Act as a transaction by an issuer not involving
any public offering.
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<PAGE> 24
(b) USE OF PROCEEDS:
The Company completed its initial public offering in October 1996, in which it
issued and sold 10,350,000 shares of Common Stock for aggregate proceeds to the
Company of $120.3 million. Of the aggregate proceeds received in the offering,
$2.2 million were used to defray costs and expenses related to the offering,
resulting in net proceeds of approximately $118.1 million. Of the net proceeds,
$14.8 million was used to reduce debt, the remainder is invested in cash
equivalents and marketable securities.
ITEM 3. DEFAULTS UPON SENIOR SECURITIES: None
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS: None
ITEM 5. OTHER INFORMATION:
Stockholder proposals intended to be considered at the 1999 Annual Meeting of
Stockholders must be received by the Company no later than December 4, 1998 in
order to be included in next year's proxy statement. The proposal must be mailed
to the Company's principal offices, 1 Willow Brook Court, Petaluma, CA 94954.
Such proposals only will be included in next year's proxy statement if they
comply with certain other rules and regulations promulgated by the Securities
and Exchange Commission. A stockholder proposal may also be considered at the
1999 Annual Meeting, even if not included in next year's proxy statement, if the
proposal is delivered to or mailed and received at the Company's principal
executive offices not less than 20 nor more than 60 days prior to the date of
the 1999 Annual Meeting, subject to other terms and conditions set forth in the
Company's Bylaws.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K:
(a). EXHIBITS:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
<S> <C>
3.3.1 Fifth Amended and Restated Certificate of Incorporation of the
Registrant. (4)
3.3.2 Certificate of Designation of Series A Junior Participating Preferred
Stock (6)
3.5 Amended and Restated Bylaws of the Registrant. (3)
4.1 Specimen Certificate of Common Stock. (1)
4.2 Series E Preferred Stock Purchase Agreement, dated September 29, 1995,
between the Registrant and certain purchasers of the Registrant's
Series E Preferred Stock. (1)
4.3 Certificate of Incorporation of the Registrant (included in Exhibit
3.3.1).
4.4 Rights Agreement dated as of May 13, 1998, between the Registrant and
BankBoston, N.A.(6)
10.3 Form of Warrant Issued in Connection with the Sale of the Registrant's
Series C Preferred Stock on March 16, 1994. (1)
10.4 Form of Performance Warrant Issued in Connection with the Sale of the
Registrant's Series C Preferred Stock on March 16, 1994 and May 4,
1994. (1)
10.4.1 Form of Amendment to Warrants and Performance Warrants. (1)
10.5 Warrant Issued in Connection with the Sale of the Registrant's Series
E Preferred Stock on September 29, 1995. (1)
10.6 Restricted Stock Issuance Agreement, dated May 19, 1995, between the
Registrant, Donald Green and Maureen Green. (1)
10.7 Compensation Agreement, dated May 19, 1995, between the Registrant and
Donald Green. (1)
</TABLE>
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<PAGE> 25
<TABLE>
<S> <C>
10.8 Promissory Note Secured by Pledge Agreement, dated May 31, 1995, by
Donald Green in favor of the Registrant. (1)
10.9 Stock Pledge Agreement, dated June 16, 1995, between the Registrant
and Donald Green. (1)
10.10 Promissory Note issued by Carl Grivner, dated October 5, 1995, in
favor of the Registrant. (1)
10.11 Hangzhou Aftek Communication Registrant Ltd. Contract, dated June 18,
1994, between Advanced Fibre Technology Communication (Hong Kong)
Limited and Hangzhou Communication Equipment Factory of the MPT.,
HuaTong Branch. (1) +
10.12 1445 & 1455 McDowell Boulevard North Net Lease, dated February 1,
1993, between the Registrant and G & W/ Redwood Associates Joint
Venture, for the premises located at 1445 McDowell Boulevard North.
(1)
10.13 Redwood Business Park Net Lease, dated July 9, 1995, between the
Registrant and G & W/Redwood Associates Joint Venture, for the
premises located at 1455 McDowell Boulevard North. (1)
10.14 Redwood Business Park Net Lease, dated July 10, 1995, between the
Registrant and G & W/Redwood Associates Joint Venture, for the
premises located at 1440 McDowell Boulevard North. (1)
10.15 Redwood Business Park Net Lease, dated June 3, 1996, between the
Registrant and G & W/Redwood Associates Joint Venture, for the
premises located at Buildings 1 & 9 of Willow Brook Court. (1)
10.16 Second Amended and Restated Loan and Security Agreement, dated
December 7, 1995, between the Registrant and Bank of the West. (1)
10.17 Form of Indemnification Agreement for Executive Officers and Directors
of the Registrant. (1)
10.18 The Registrant's 1993 Stock Option/Stock Issuance Plan, as amended
(the "1993 Plan"). (1)
10.19 Form of Stock Option Agreement pertaining to the 1993 Plan. (1)
10.20 Form of Notice of Grant of Stock Option pertaining to the 1993 Plan.
(1)
10.21 Form of Stock Purchase Agreement pertaining to the 1993 Plan. (1)
10.22 The Registrant's 1996 Stock Incentive Plan (the "1996 Plan"). (1)
10.23 Form of Stock Option Agreement pertaining to the 1996 Plan. (1)
10.23.1 Form of Automatic Stock Option Agreement pertaining to the 1996 Plan.
(1)
10.24 Form of Notice of Grant of Stock Option pertaining to the 1996 Plan.
(1)
10.24.1 Form of Notice of Grant of Non-Employee Director Automatic Stock
Option pertaining to the 1996 Plan. (1)
10.25 Form of Stock Issuance Agreement pertaining to the 1996 Plan. (1)
10.26 The Registrant's Employee Stock Purchase Plan. (1)
10.27 Stock Issuance Agreement, dated June 30, 1997, between the Registrant
and Peter A. Darbee. (3)
10.28 Note secured by Stock Pledge Agreement, dated June 30, 1997, by Peter
A. Darbee in favor of the Registrant. (3)
10.29 Stock Pledge Agreement, dated June 30, 1997, between the Registrant
and Peter A. Darbee. (3)
10.30 Consulting Agreement, dated May 19, 1997, between the Registrant and
Peter A. Darbee. (3)
10.31 Cypress Center Net Lease, dated October 9, 1997, between the
Registrant and RNM Lakeville L.P., for the premises located at 2210
South McDowell Boulevard. (5)
10.32 Termination Agreement and General Release, dated December 22, 1997,
between the Registrant and Dan E. Steimle. (5)
10.33 Consulting Agreement, dated December 22, 1997, between the Registrant
and Dan E. Steimle. (5)
10.34 Revolving Credit Agreement, dated July 30, 1998, between the
Registrant and Banque Nationale De Paris and Bank of America National
Trust and Savings Association.
21.1 Subsidiaries of the Registrant. (1)
27.1 Financial data schedule.
27.697 Financial data schedule (restated) for the six month period ended
June 30, 1997.
(1) Incorporated by reference from the Registrant's Registration Statement
on Form S-1 (no. 333-8921) filed with the Securities and Exchange
Commission on July 26, 1996, as amended, and declared effective
September 30, 1996.
(2) Incorporated by reference from the Registrant's Registration Statement
on Form S-1 (no. 333-20369) filed with the Securities and Exchange
Commission on January 24, 1997, as amended, and declared effective
February 12, 1997.
</TABLE>
24
<PAGE> 26
<TABLE>
<S> <C>
(3) Incorporated by reference from the Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 30, 1997, filed with the
Securities and Exchange Commission on August 8, 1997.
(4) Incorporated by reference from the Registrant's Quarterly Report on
Form 10-Q for the quarter ended September 30, 1997, filed with the
Securities and Exchange Commission on November 7, 1997.
(5) Incorporated by reference from the Registrant's Annual Report on Form
10-K for the year ended December 31, 1997, filed with the Securities
and Exchange Commission on March 23, 1998.
(6) Incorporated by reference from the Registrant's Current Report on Form
8-K filed with the Securities and Exchange Commission on May 19, 1998.
+ Portions of this Exhibit have been granted Confidential Treatment.
</TABLE>
(b). REPORTS ON FORM 8-K:
The Company filed one report on Form 8-K during the second quarter ended June
30, 1998. The report was filed on May 19, 1998, reporting the adoption of the
Company's Stockholders' Rights Plan.
25
<PAGE> 27
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant had duly caused this Report to be signed on its behalf by the
undersigned thereunto duly authorized.
ADVANCED FIBRE COMMUNICATIONS, INC.
(Registrant)
Dated: August 7, 1998 By: /s/ Peter A. Darbee
---------------------------------
Name: Peter A. Darbee
Title: Vice President, Chief
Financial Officer, Treasurer
and Secretary
26
<PAGE> 28
ADVANCED FIBRE COMMUNICATIONS, INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Document Description
- ------ --------------------
<S> <C>
27.1 Financial data schedule.
27.697 Financial data schedule (restated) for the six month period ending
June 30, 1997
10.34 Revolving Credit Agreement, dated July 30, 1998, between the
Registrant and Banque Nationale De Paris and Bank of America National
Trust and Savings Association
</TABLE>
27
<PAGE> 1
EXHIBIT 10.34
REVOLVING CREDIT AGREEMENT
among
ADVANCED FIBRE COMMUNICATIONS, INC.,
as Borrower
LENDERS
BANQUE NATIONALE DE PARIS,
as Arranger and Administrative Agent
BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION
as Co-Arranger
as of
July 30, 1998
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1. DEFINITIONS
Section 1.1. Defined Terms 1
Section 1.2. Other Definitional Provisions 1
ARTICLE 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
Section 2.1. Revolving Credit Commitments 2
Section 2.2. Procedure for Revolving Credit Borrowing 2
Section 2.3. Use of Proceeds of Loans 3
Section 2.4. Repayment of Loans; Evidence of Debt 3
Section 2.5. Facility Fee 4
Section 2.6. Optional Prepayments 4
Section 2.7. Optional Termination or Reduction of Aggregate Revolving Credit Commitment 4
Section 2.8. Conversion and Continuation Options 4
Section 2.9. Minimum Amounts 5
Section 2.10. Interest Rates and Payment Dates 5
Section 2.11. Computation of Interest and Fees 6
Section 2.12. Inability to Determine Interest Rate 6
Section 2.13. Pro Rata Treatment and Payments 7
Section 2.14. Illegality 8
Section 2.15. Requirements of Law 8
Section 2.16. Taxes 10
Section 2.17. Indemnity 12
Section 2.18. Certain Fees 12
Section 2.19. Change of Lending Office 12
ARTICLE 3. AMOUNT AND TERMS OF LETTER OF CREDIT SUBFACILITY
Section 3.1. L/C Commitment 13
Section 3.2. Procedure for Issuance of Letters of Credit 13
Section 3.3. Fees, Commissions and Other Charges 14
Section 3.4. L/C Participations 14
Section 3.5. Reimbursement Obligation of the Borrower 15
Section 3.6. Obligations Absolute 16
Section 3.7. Letter of Credit Payments 17
Section 3.8. Application 17
ARTICLE 4. CONDITIONS PRECEDENT
Section 4.1. Conditions to Initial Loans 18
(a) Credit Documents 18
(b) Corporate Proceedings of the Borrower 18
(c) Borrower Incumbency Certificate 18
</TABLE>
<PAGE> 3
<TABLE>
<CAPTION>
Page
<S> <C>
(d) Corporate Documents 18
(e) Legal Opinions 18
(f) Fees 18
Section 4.2. Conditions to Each Loan 18
(a) Notices 19
(b) Representations and Warranties 19
(c) No Default 19
(d) No Material Adverse Change 19
(e) Additional Matters 19
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
Section 5.1. Financial Condition 21
Section 5.2. No Change 21
Section 5.3. Corporate Existence; Compliance with Law 21
Section 5.4. Corporate Power; Authorization; Enforceable Obligations 22
Section 5.5. No Legal Bar 22
Section 5.6. No Material Litigation 22
Section 5.7. No Default 23
Section 5.8. Ownership of Property; Liens 23
Section 5.9. Intellectual Property 23
Section 5.10. Taxes 23
Section 5.11. Federal Regulations 23
Section 5.12. Employee Benefits 24
Section 5.13. Investment Company Act: Other Regulations 24
Section 5.14. Subsidiaries 24
Section 5.15. Environmental Matters 24
Section 5.16. Accuracy and Completeness of Information 26
Section 5.17. Projections 26
Section 5.18. Solvency 26
ARTICLE 6. AFFIRMATIVE COVENANTS
Section 6.1. Financial Statements 27
Section 6.2. Certificates; Other Information 28
Section 6.3. Payment of Obligations 28
Section 6.4. Conduct of Business and Maintenance of Existence 28
Section 6.5. Maintenance of Property; Insurance 28
Section 6.6. Inspection of Property; Books and Records; Discussions 29
Section 6.7. Notices 29
Section 6.8. Year 2000 Compliant 30
ARTICLE 7. NEGATIVE COVENANTS
Section 7.1. Financial Condition Covenants 31
(a) Minimum Quick Ratio 31
(b) Maximum Total Liabilities to Tangible Net Worth 31
(c) Minimum Fixed Charge Coverage Ratio 31
</TABLE>
<PAGE> 4
<TABLE>
<CAPTION>
Page
<S> <C>
(d) Minimum Tangible Net Worth 31
Section 7.2. Limitation on Indebtedness 31
Section 7.3. Limitation on Liens 32
Section 7.4. Limitation on Guarantee Obligations 33
Section 7.5. Limitation on Fundamental Changes 34
Section 7.6. Limitation on Sale of Assets 35
Section 7.7. Limitation on Restricted Payments 35
Section 7.8. Limitation on Investments 36
Section 7.9. Limitation on Transactions with Affiliates 36
Section 7.10. Limitation on Sales and Leasebacks 37
Section 7.11. Limitation on Changes in Fiscal Year or Accounting Treatment 37
Section 7.12. Limitation on Lines of Business 37
Section 7.13. No New Restrictions on Subsidiary Dividends 37
ARTICLE 8. EVENTS OF DEFAULT
</TABLE>
<PAGE> 5
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 9. THE ADMINISTRATIVE AGENT
Section 9.1. Appointment 42
Section 9.2. Delegation of Duties 42
Section 9.3. Exculpatory Provisions 42
Section 9.4. Reliance by Administrative Agent 42
Section 9.5. Notice of Default 43
Section 9.6. NonReliance on Administrative Agent, and Other Lenders 43
Section 9.7. Indemnification 44
Section 9.8. Agent in Its Individual Capacity 44
Section 9.9. Successor Agent 44
Section 9.10. Co-Arranger 45
ARTICLE 10. MISCELLANEOUS
Section 10.1. Amendments and Waivers 46
Section 10.2. Notices 46
Section 10.3. No Waiver; Cumulative Remedies 47
Section 10.4. Survival of Representations and Warranties 47
Section 10.5. Payment of Expenses and Taxes 47
Section 10.6. Successors and Assigns; Participations and Assignments 48
Section 10.7. Adjustments; Setoff 50
Section 10.8. Counterparts 51
Section 10.9. Severability 51
Section 10.10. Integration 51
Section 10.11. Governing Law 52
Section 10.12. Submission To Jurisdiction Waivers 52
Section 10.13. Acknowledgments 52
Section 10.14. Waivers of Jury Trial 53
Section 10.15. Confidentiality 53
</TABLE>
<PAGE> 6
EXHIBITS
A Definitions
B Note
C Legal Opinion
D Notice of Borrowing (Drawing)
E Notice of Borrowing (Conversion)
F Notice of Borrowing (Continuation)
G Certificate of Responsible Officer
H Assignment and Acceptance
SCHEDULES
5.6 Material Litigation
5.14 List of Subsidiaries
5.15 Environmental Matters
7.2 List of Indebtedness
7.3 List of Liens
7.4 Guarantee Obligations
<PAGE> 7
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (this "Agreement") is made as of July
30, 1998, among ADVANCED FIBRE COMMUNICATIONS, INC., a Delaware corporation
(with its successors and permitted assigns, the "Borrower"), the LENDERS from
time to time parties hereto (including their Assignees), BANQUE NATIONALE DE
PARIS, a French banking association, as arranger and administrative agent (the
"Administrative Agent"), and BANK OF AMERICA NATIONAL TRUST AND SAVINGS
ASSOCIATION, a national banking association, as co-arranger agent (the
"Co-Arranger").
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
ARTICLE 1.
DEFINITIONS
Section 1.1. DEFINED TERMS. As used in this Agreement, terms defined in
Exhibit A hereto shall have the meanings assigned to such terms in such exhibit.
Section 1.2. OTHER DEFINITIONAL PROVISIONS.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in any Notes or any
certificate or other document prepared for the purposes hereof.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Borrower and its Subsidiaries not defined in Exhibit A and accounting terms
partly defined in Exhibit A, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Article,
Section, subsection, Schedule and Exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
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ARTICLE 2.
AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS
Section 2.1. REVOLVING CREDIT COMMITMENTS.
(a) Subject to the terms and conditions hereof, each Lender
severally agrees to make revolving credit loans ("Loans") to the Borrower from
time to time during the Commitment Period; provided, that, after giving effect
to the making of such Loan (i) the sum of (1) the aggregate outstanding
principal amount of all Loans made by all the Lenders hereunder and (2) the
aggregate amount of the L/C Obligations then outstanding shall not exceed the
Aggregate Revolving Credit Commitment then in effect and (ii) each Lender's
Available Revolving Credit Commitment shall not be less than $0. During the
Commitment Period, the Borrower may use the Aggregate Revolving Credit
Commitment by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Aggregate Revolving Credit Commitment shall terminate on
the Termination Date unless earlier terminated in accordance with this
Agreement. The Borrower may request a 364-day extension of the Termination Date
at any time (and may do so more than once), and the Termination Date shall be
extended upon, but only upon, the unanimous written consent of all the Lenders.
The Lenders shall have no obligation to agree to any extension. Any such
extension shall be subject to payment by the Borrower of extension fees, to be
mutually agreed upon among the Borrower, the Lenders and the Administrative
Agent.
(c) The Loans may from time to time be (i) LIBO Loans or (ii)
Base Rate Loans, as determined by the Borrower and notified to the
Administrative Agent in accordance with Sections 2.2 and 2.8, provided, that no
Loan shall be made as a LIBO Loan after the day that is one month prior to the
Termination Date.
(d) The Borrower may, from time to time during the Commitment
Period, request that Letters of Credit be issued on its behalf in the aggregate
principal amount (together with any Reimbursement Obligations) not to exceed the
L/C Commitment and otherwise in accordance with Article 3 hereof. The L/C
Commitment is a subportion of the Aggregate Revolving Credit Commitment, and
each issuance of a Letter of Credit shall reduce the Available Revolving Credit
Commitment by a like amount.
Section 2.2. PROCEDURE FOR REVOLVING CREDIT BORROWING. The Borrower may
borrow Loans under the Aggregate Revolving Credit Commitment during the
Commitment Period on any Business Day, provided, that the Borrower shall give
the Administrative Agent an irrevocable Notice of Borrowing (Drawing), which
notice must be received by the Administrative Agent prior to 11:00 A.M., San
Francisco time, (a) three Business Days prior to the requested Borrowing Date,
if all or any part of the requested Loans are to be initially LIBO Loans or (b)
one Business Day prior to the requested Borrowing Date, otherwise, specifying
(i) the amount to be borrowed, (ii) the requested Borrowing Date, (iii) whether
the borrowing is to be of LIBO Loans or Base Rate Loans and (iv) if the
borrowing is to be entirely or partly of LIBO Loans, the
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amount of each Type and the length of the initial Interest Period therefor. Each
Loan under the Aggregate Revolving Credit Commitment shall be in an amount not
less than $5,000,000 and in increments of $1,000,000. Upon receipt of any such
notice from the Borrower, the Administrative Agent shall promptly notify each
Lender thereof. Each Lender will make the amount of its Revolving Credit
Commitment Percentage of each borrowing available to the Administrative Agent
for the account of the Borrower at the office of the Administrative Agent
specified in Section 10.2 prior to 1:00 P.M., San Francisco time, on the
Borrowing Date requested by the Borrower in funds immediately available to the
Administrative Agent. Such borrowing will then be made available to the Borrower
by the Administrative Agent crediting the Payment Account with the aggregate of
the amounts made available to the Administrative Agent by the Lenders and in
like funds as received by the Administrative Agent.
Section 2.3. USE OF PROCEEDS OF LOANS. The proceeds of the Loans shall
be utilized by the Borrower for general corporate purposes of the Borrower,
including acquisitions.
Section 2.4. REPAYMENT OF LOANS; EVIDENCE OF DEBT.
(a) The Borrower hereby unconditionally promises to pay to the
Administrative Agent the then unpaid principal amount of each Loan on the
Termination Date (or such earlier date on which such Loans become due and
payable hereunder). The Borrower hereby further agrees to pay interest on the
unpaid principal amount of the Loans from time to time owing by it from the date
hereof until payment in full thereof at the rates per annum, and on the dates,
set forth in Section 2.10.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant
to Section 10.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, the Type thereof, each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each applicable Lender's share thereof.
(d) The entries made in the Register and the accounts of each
Lender maintained pursuant to Section 2.4(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
obligations of the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of the Borrower to repay (with applicable interest) the Loans made to
the Borrower by such Lender in accordance with the terms of this Agreement.
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(e) The Borrower agrees that, upon request of any Lender through
the Administrative Agent, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing the Loans of such Lender,
substantially in the form of Exhibit B with appropriate insertions as to date
and principal amount (a "Note").
Section 2.5. FACILITY FEE. The Borrower shall pay to the Administrative
Agent, for the account of each Lender, a facility fee for each day during the
period from and including the first day of the Commitment Period to and
including the Termination Date, computed at the rate per annum equal to 0.175%
per annum on the average daily unused portion of the Revolving Credit Commitment
of such Lender during the period for which payment is made. Such facility fee
shall be payable (A) quarterly in arrears on the last Business Day of each
March, June, September and December, commencing on September 30, 1998, for the
fiscal quarter ending on (and including) the last day of the immediately
preceding December, March, June or September, respectively, and (B) on the
Termination Date or any earlier date on which the obligation of the Lenders to
make Loans available hereunder is terminated in accordance with this Agreement.
Section 2.6. OPTIONAL PREPAYMENTS. The Borrower may at any time and from
time to time prepay the Loans made to it in whole or in part, without premium or
penalty, upon at least three Business Days' (or, in the case of prepayments of
Base Rate Loans, one Business Day's) irrevocable notice to the Administrative
Agent (which notice must be received by the Administrative Agent prior to 11:00
A.M., San Francisco time, on the date upon which such notice is due), specifying
the date and amount of prepayment and whether the prepayment is of LIBO Loans or
Base Rate Loans. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Lender. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein, together
with any amounts payable pursuant to Section 2.1 and accrued interest to such
date on the amount prepaid. Partial prepayments shall be in an aggregate
principal amount of not less than $5,000,000 and in increments of $1,000,000.
Section 2.7. OPTIONAL TERMINATION OR REDUCTION OF AGGREGATE REVOLVING
CREDIT COMMITMENT. The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to terminate the Aggregate
Revolving Credit Commitment or, from time to time, to reduce the amount thereof;
provided, that no such termination or reduction shall be permitted if, after
giving effect thereto and to any prepayments of the Loans, made on the effective
date thereof, the sum of (a) the aggregate principal amount of the Loans then
outstanding and (b) the L/C Obligations then outstanding, would exceed the
Aggregate Revolving Credit Commitment then in effect. Any such reduction shall
be in an amount not less than $5,000,000 and in increments of $1,000,000 and
shall reduce permanently the Aggregate Revolving Credit Commitment then in
effect. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Lender thereof.
Section 2.8. CONVERSION AND CONTINUATION OPTIONS.
(a) The Borrower may elect from time to time to convert LIBO
Loans to Base Rate Loans by delivering to the Administrative Agent an
irrevocable Notice of
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Borrowing (Conversion) by 11:00 A.M., San Francisco time, at least one Business
Day prior to the requested date of conversion; provided, that any such
conversion of LIBO Loans may only be made on the last day of an Interest Period
with respect thereto. The Borrower may elect from time to time to convert Base
Rate Loans to LIBO Loans by delivering to the Administrative Agent an
irrevocable Notice of Borrowing (Conversion) by 11:00 A.M.,San Francisco time,
at least three Business Days' prior to the requested conversion date. Any such
Notice of Borrowing (Conversion) with respect to a conversion to LIBO Loans
shall specify the length of the initial Interest Period or Interest Periods
therefor. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Lender thereof. All or any part of outstanding LIBO Loans
and Base Rate Loans may be converted as provided herein, provided, that (i) no
Loan may be converted into a LIBO Loan when any Event of Default has occurred
and is continuing and the Administrative Agent has or the Required Lenders have
determined that such a conversion is not appropriate and (ii) no Base Rate Loan
may be converted into a LIBO Loan after the date that is one month prior to the
Termination Date.
(b) Any LIBO Loans may be continued as such upon the expiration
of the then current Interest Period with respect thereto by the Borrower
delivering to the Administrative Agent an irrevocable Notice of Borrowing
(Continuation), in accordance with the applicable provisions of the term
"Interest Period" set forth in Exhibit A, setting forth (among other things) the
length of the next Interest Period to be applicable to such Loans, provided,
that (i) no Loan may be continued as a LIBO Loan when any Event of Default has
occurred and is continuing and the Administrative Agent has or the Required
Lenders have determined that such a continuation is not appropriate and (ii) no
Loan may be continued as a LIBO Loan after the date that is one month prior to
the Termination Date and provided, further, that if the Borrower shall fail to
give such notice or if such continuation is not permitted, such Loans shall be
automatically converted to Base Rate Loans on the last day of such then expiring
Interest Period. Upon receipt of any such notice, the Administrative Agent shall
promptly notify each Lender thereof.
Section 2.9. MINIMUM AMOUNTS. All borrowings, conversions and
continuations of the Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections so
that, after giving effect thereto, the aggregate principal amount of each Loan
shall be not less than $5,000,000 and in increments of $1,000,000.
Section 2.10. INTEREST RATES AND PAYMENT DATES.
(a) Each LIBO Loan shall bear interest for each day during each
Interest Period with respect thereto at a rate per annum equal to the LIBO Rate
determined for such day plus the Applicable Margin with respect thereto.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin with respect thereto.
(c) If all or a portion of (i) any principal of any Loan, (ii)
any interest payable thereon, (iii) any Reimbursement Obligation, (iv) any
facility fee or (v) any other amount payable hereunder shall not be paid when
due (whether at the stated maturity, by acceleration or otherwise),
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the principal of the Loans and any such overdue interest, Reimbursement
Obligation, facility fee or other amount shall bear interest at a rate per annum
which is (x) in the case of principal, the rate that would otherwise be
applicable thereto pursuant to the foregoing provisions of this Section plus 2%
or (y) in the case of any such overdue interest, Reimbursement Obligation,
facility fee or other amount (including, without limitation, fees, and
commissions on Letters of Credit), the rate which would have been applicable
thereto if such amount were principal of a Base Rate Loan plus 2%, in each case
from the date of such non-payment until such overdue principal, interest,
facility fee or other amount is paid in full (as well after as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date (provided, that interest accruing pursuant to paragraph (c) of this Section
shall be payable from time to time on demand) and shall be payable to the
Administrative Agent (for the ratable account of the Lenders holding the
obligations on account of which such interest was paid).
Section 2.11. COMPUTATION OF INTEREST AND FEES.
(a) Facility fees and, whenever it is calculated on the basis of
the Prime Rate, interest shall be calculated on the basis of a 365 (or 366, as
the case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the Lenders of each
determination of a LIBO Rate. Any change in the interest rate on a Loan
resulting from a change in the Base Rate or the LIBO Reserve Requirements shall
become effective as of the opening of business on the day on which such change
becomes effective. The Administrative Agent shall as soon as practicable notify
the Borrower and the affected Lenders of the effective date and the amount of
each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error.
Section 2.12. INABILITY TO DETERMINE INTEREST RATE. If prior to the
determination of the LIBO Rate with respect to any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do
not exist for ascertaining the LIBO Rate for such Interest Period;
(b) the Administrative Agent shall have received notice from any
Lender that deposits in Dollars in the principal amounts of the LIBO Loans to
which such Interest Period is to be applicable are not generally available in
the London interbank market for a period equal to such Interest Period; or
(c) the Administrative Agent shall have receive notice from the
Required Lenders that the LIBO Rate to be determined for such Interest Period
will
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not adequately and fairly reflect the cost to such Lenders (as conclusively
certified by such Lenders) of making or maintaining their affected Loans during
such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter. If such notice is
given (x) any LIBO Loans requested to be made on the first day of such Interest
Period shall be made as Base Rate Loans, (y) any Loans that were to have been
converted on the first day of such Interest Period to LIBO Loans shall be
converted to or continued as Base Rate Loans and (z) any outstanding LIBO Loans
shall be converted, on the first day of such Interest Period, to Base Rate
Loans. Until such notice has been withdrawn by the Administrative Agent, no
further LIBO Loans under the Aggregate Revolving Credit Commitment shall be made
or continued as such, nor shall the Borrower have the right to convert Base Rate
Loans to LIBO Loans.
Section 2.13. PRO RATA TREATMENT AND PAYMENTS.
(a) Each borrowing by the Borrower from the Lenders hereunder,
each payment by the Borrower on account of any facility fee hereunder and any
reduction of the Revolving Credit Commitments of the Lenders shall be made pro
rata according to the respective relevant Revolving Credit Commitment
Percentages of the Lenders holding obligations in respect of which such amounts
were paid. Each payment (including each prepayment) by the Borrower on account
of principal of and (subject to the provisions of Section 2.14) interest on the
Loans shall be made pro rata according to the respective outstanding principal
amounts of such Loans then held by the Lenders. Except as otherwise set forth
herein, all payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without set off or counterclaim and shall be made prior to 11:00 A.M.,
San Francisco time on the due date thereof to the Administrative Agent, for the
account of the applicable Lenders, at the Administrative Agent's office
specified in Section 10.2 (or at such other office as the Administrative Agent
may from time to time specify), in immediately available funds. The
Administrative Agent shall distribute such payments to the Lenders holding
obligations on account of which such amounts were paid promptly upon receipt in
like funds as received. If any payment hereunder becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal, interest
thereon shall be payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its relevant Revolving Credit Commitment Percentage
of such borrowing available to the Administrative Agent, the Administrative
Agent may assume that such Lender is making such amount available to the
Administrative Agent, and the Administrative Agent may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. If such
amount is not made available to the Administrative Agent by the required time on
the Borrowing Date therefor, such Lender shall pay to the Administrative Agent,
on demand, such amount with interest thereon at a rate equal to the daily
average Federal Funds Effective Rate for the period until such Lender
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makes such amount immediately available to the Administrative Agent. A
certificate of the Administrative Agent submitted to any Lender with respect to
any amounts owing under this Section shall be conclusive in the absence of
manifest error. If such Lender's relevant Revolving Credit Commitment Percentage
of such borrowing is not made available to the Administrative Agent by such
Lender within three Business Days of such Borrowing Date, the Administrative
Agent shall also be entitled to recover such amount with interest thereon at the
rate per annum applicable to Base Rate Loans hereunder, on demand, from the
Borrower.
(c) Notwithstanding anything to the contrary contained herein, in
the event that the Administrative Agent shall make any payment to a Lender on
account of amounts owing to such Lender by the Borrower hereunder and the
Administrative Agent either (i) shall not receive the corresponding amount from
the Borrower or (ii) shall be required to be return such amount to the Borrower,
such Lender shall (upon the request of the Administrative Agent) promptly return
to the Administrative Agent the amount of such payment.
Section 2.14. ILLEGALITY. Notwithstanding any other provision herein, if
the adoption of or any change in any Requirement of Law or in the interpretation
or application thereof shall make it unlawful for any Lender to make or maintain
LIBO Loans as contemplated by this Agreement, (a) the commitment of such Lender
hereunder to make LIBO Loans, continue LIBO Loans as such and convert Base Rate
Loans to LIBO Loans shall forthwith be canceled and (b) such Lender's Loans then
outstanding as LIBO Loans, if any, shall be converted automatically to Base Rate
Loans, on the respective last days of the then current Interest Periods with
respect to such Loans or within such earlier period as required by law. If any
such conversion of a LIBO Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrower shall pay to the
relevant Lenders such amounts, if any, as may be required pursuant to Section
2.17.
Section 2.15. REQUIREMENTS OF LAW.
(a) If the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof or compliance by any Lender with
any request or directive (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Note, any Letter of Credit, or any
LIBO Loan, or change the basis of taxation of payments to such Lender in
respect thereof (except for Non-Excluded Taxes covered by Section 2.16,
changes in the rate of or the imposition of net income taxes and
franchise taxes (in lieu of net income taxes)) imposed on such Lender as
a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority
imposing such tax or any political subdivision or taxing authority
thereof or therein (other than any such connection arising solely from
the Administrative Agent or such Lender having executed, delivered or
performed its obligations or received a payment under, or enforced, this
Agreement or any Note);
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(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the LIBO Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining LIBO Loans or issuing or participating in Letters of
Credit or to reduce any amount receivable hereunder in respect thereof, then, in
any such case, the Borrower shall promptly pay to such Lender such additional
amount or amounts as will compensate such Lender for such increased cost or
reduced amount receivable.
(b) If any Lender shall have determined that the adoption of or
any change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under any Letter of Credit to a
level below that which such Lender or such corporation could have achieved but
for such adoption, change or compliance (taking into consideration such Lender's
or such corporation's policies with respect to capital adequacy) by an amount
deemed by such Lender to be material, then from time to time, the Borrower shall
promptly pay (or cause to be paid) to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
(c) If any Lender becomes entitled to claim any additional
amounts pursuant to this Section, it shall promptly notify the Borrower (with a
copy to the Administrative Agent) of the event by reason of which it has become
so entitled. A certificate as to any additional amounts payable pursuant to this
Section (accompanied by a statement as to the amount of such compensation and a
summary of the basis for such demand with detailed calculations) submitted by
such Lender to the Borrower (with a copy to the Administrative Agent) shall be
conclusive in the absence of manifest error. The agreements in this Section
shall survive the termination of this Agreement and the payment of the Loans and
all other amounts payable hereunder.
(d) The Borrower shall be permitted to replace any Lender which
(a) requests reimbursement for amounts owing pursuant to this Section with a
replacement financial institution; provided, that (i) such replacement does not
conflict with any Requirement of Law, (ii) no Event of Default shall have
occurred and be continuing at the time of such replacement, (iii) prior to any
such replacement, such Lender shall not have taken action under Section 2.19 so
as to eliminate the continued need for payment of amounts owing pursuant to this
Section, (iv) the replacement financial institution shall purchase, at par, all
Loans and other amounts owing to such replaced Lender on or prior to the date of
replacement, (v) the Borrower shall be liable to such replaced Lender under
Section 2.17 if any LIBO Loan owing to such replaced Lender shall be purchased
other than on the last day of the Interest Period relating thereto, (vi) the
replacement financial institution, if not already a Lender, shall be reasonably
satisfactory to the Administrative Agent, (vii) the replaced Lender shall be
obligated to make such replacement in accordance with the provisions of Section
10.6 (provided, that the Borrower shall be obligated to pay the registration and
processing fee referred to therein), (viii) the Borrower shall pay to the
replaced Lender all additional amounts (if any) owing pursuant to this Section.
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Section 2.16. TAXES.
(a) All payments made by the Borrower under this Agreement and
any Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp, documentary, or other
taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now
or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (in lieu
of net income taxes) imposed on the Administrative Agent or any Lender as a
result of a present or former connection between the Administrative Agent or
such Lender and the jurisdiction of the Governmental Authority imposing such tax
or any political subdivision or taxing authority thereof or therein (other than
any such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any Note). If any such non-excluded taxes,
levies, imposts, duties, charges, fees, deductions or withholdings
("Non-Excluded Taxes") are required to be withheld from any amounts payable to
the Administrative Agent or any Lender hereunder or under any Note, the amounts
so payable to the Administrative Agent or such Lender shall be increased to the
extent necessary so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums payable
under this Section), such Lender or the Administrative Agent, as the case may
be, receives and retains an amount equal to the sum it would have received and
retained had no such deductions or withholdings been made, provided, however,
that the Borrower shall not be required to increase any such amounts paid to any
Lender that is not organized under the laws of the United States of America or a
state thereof if such Lender fails to comply with the requirements of paragraph
(b) of this Section. Whenever any Non-Excluded Taxes are payable by the
Borrower, within thirty days of such payment the Borrower shall send to the
Administrative Agent for its own account or for the account of such Lender, as
the case may be, a certified copy of an original official receipt received by
the Borrower showing payment thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Administrative Agent and
the Lenders for any incremental taxes, interest, penalties or expenses that may
become payable by the Administrative Agent or any Lender as a result of any such
failure. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
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(b) Each Lender that is not incorporated under the laws of the
United States of America or a state thereof shall:
(i) deliver to the Borrower and the Administrative Agent (A) two
duly completed copies of United States Internal Revenue Service Form
1001 or 4224, or successor applicable form, as the case may be, and (B)
an Internal Revenue Service Form W-8 or W-9, or successor applicable
form, as the case may be;
(ii) deliver to the Borrower and the Administrative Agent two
further copies of any such form or certification on or before the date
that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Borrower; and
(iii) obtain such extensions of time for filing and complete
such forms or certifications as may reasonably be requested by the
Borrower or the Administrative Agent;
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from duly completing and delivering any such
form with respect to it and such Lender so advises the Borrower and the
Administrative Agent. Such Lender shall certify (i) in the case of a Form 1001
or 4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes and (ii) in
the case of a Form W-8 or W-9, that it is entitled to an exemption from United
States backup withholding tax. Each Person that shall become a Lender or a
Participant pursuant to Section 10.6 shall, upon the effectiveness of the
related transfer, be required to provide all of the forms and statements
required pursuant to this Section, provided, that in the case of a Participant
such Participant shall furnish all such required forms and statements to the
Lender from which the related participation shall have been purchased.
(c) Each of the Lenders and the Administrative Agent agrees,
within a reasonable time after receiving a written request from the Borrower, to
provide the Borrower and the Administrative Agent with such certificates as are
reasonably required and take such other actions as are reasonably necessary to
claim such exemptions as such Lender, the Administrative Agent or Affiliate may
be entitled to claim in respect of all or a portion of any Non-Excluded Taxes
that are otherwise required to be paid or deducted or withheld pursuant to this
Section in respect of any payments under this Agreement or under the Notes.
(d) To the extent that the undertaking to indemnify and reimburse
the Administrative Agent and the Lenders set forth in this Section may be
invalid and/or unenforceable because it is violative of any law or public
policy, the Borrower shall contribute the maximum portion that it is permitted
to pay under applicable law to the payment of the Non-Excluded Taxes imposed on
the Administrative Agent and the Lenders.
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(e) Within thirty days after receiving a written request from the
Borrower, a Lender or the Administrative Agent shall, at the Borrower's expense,
use commercially reasonable efforts to apply for a refund of Non-Excluded Taxes
(including interest and penalties, if any) as to which the Lender or the
Administrative Agent has been indemnified pursuant to this Section.
Section 2.17. INDEMNITY. The Borrower agrees to indemnify each Lender
and to hold each Lender harmless from any loss or expense which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of LIBO Loans after the Borrower
has given a notice requesting the same in accordance with the provisions of this
Agreement, (b) default by the Borrower in making any prepayment after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement or (c) the making of a prepayment of LIBO Loans on a day which is not
the last day of an Interest Period with respect thereto. Any Lender requesting
indemnification pursuant to this Section shall deliver to the Borrower,
concurrently with such demand, a written statement in reasonable detail as to
such losses and expenses, and such statement shall be conclusive in the absence
of manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
Section 2.18. CERTAIN FEES. The Borrower agrees to pay to the
Administrative Agent and to the Co-Arranger, for their own accounts, the
non-refundable fees previously agreed to with the Administrative Agent and the
Co-Arranger in the manner and on the dates so previously agreed.
Section 2.19. CHANGE OF LENDING OFFICE.
(a) Each Lender agrees that if it makes any demand for payment
under Sections 2.14 or 2.16(a), or if any adoption or change of the type
described in Section 2.15 shall occur with respect to it, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for the
Borrower to make payments under Sections 2.14 or 2.16(a), or would eliminate or
reduce the effect of any adoption or change described in Section 2.15.
(b) Notwithstanding anything to the contrary contained herein, no
Lender shall be entitled to receive any amount under Sections 2.14, 2.15 or
2.16(a) as a result of the transfer of any LIBO Loan to a lending office which
is greater than such Lender would have been entitled to receive immediately
prior thereto, unless (i) the transfer occurred at a time when circumstances
giving rise to the claim for such greater amount did not exist and (ii) such
claim would have arisen even if such transfer had not occurred.
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ARTICLE 3.
AMOUNT AND TERMS OF LETTER OF CREDIT SUB-FACILITY
Section 3.1. L/C COMMITMENT.
(a) Subject to the terms and conditions hereof, the Issuing
Lender, in reliance on the agreements of the other Lenders set forth in Section
3.4(a), agrees to issue letters of credit ("Letters of Credit") for the account
of the Borrower on any Business Day during the Commitment Period in such form as
may be approved from time to time by the Issuing Lender; provided, that the
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (i) the L/C Obligations would exceed the L/C
Commitment, (ii) the sum of the aggregate outstanding principal amount of all
Loans made by the Lenders and of the L/C Obligations then outstanding would
exceed the Aggregate Revolving Credit Commitment then in effect, or (iii) any
Lender's Available Revolving Credit Commitment would be less than $0.
(b) Each Letter of Credit shall (i) be denominated in Dollars,
(ii) be a standby letter of credit (a "Standby Letter of Credit") issued to
support obligations of the Borrower or any of its Subsidiaries, contingent or
otherwise, or to finance the working capital and business needs of the Borrower
or any of its Subsidiaries in the ordinary course of business, and (iii) expire
no later than the earlier of (x) the date that is 364 days after the date of its
issuance and (y) five Business Days prior to the Termination Date.
Notwithstanding --- the foregoing, at the request of the Borrower and with the
consent of each Lender, any Letter of Credit issued for the account of the
Borrower may have an expiration date which is later than the date set forth in
clause (iii)(x) and (y) above, provided, that the Borrower agrees that, from and
after the Termination Date, it shall provide to the Administrative Agent, as
collateral security for the L/C Obligations on account of such Letter of Credit,
an amount of cash which is equal to at least 100% of the face amount
outstanding. There is no minimum dollar amount required for Letters of Credit.
(c) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of
California.
(d) The Issuing Lender shall not at any time be obligated to
issue any Letter of Credit hereunder if such issuance would conflict with, or
cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any applicable Requirement of Law.
Section 3.2. PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT. The Borrower
may request that the Issuing Lender issue a Letter of Credit at any time during
the Commitment Period by delivering to the Issuing Lender at its address for
notices specified herein an Application therefor, completed to the satisfaction
of the Issuing Lender, and such other certificates, documents and other papers
and information as the Issuing Lender may reasonably request. Upon receipt of
any Application, the Issuing Lender will process such Application and the
certificates, documents and other papers and information delivered to it in
connection therewith in accordance with its customary procedures and shall
promptly issue the Letter of Credit requested thereby (but in no event shall the
Issuing Lender be required to issue any Letter of Credit earlier than three
Business
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Days after its receipt of the Application therefor and all such other
certificates, documents and other papers and information relating thereto) by
issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower. The Issuing
Lender shall furnish to the Borrower and the Administrative Agent a copy of each
Letter of Credit issued by the Issuing Lender, promptly following the issuance
thereof.
Section 3.3. FEES, COMMISSIONS AND OTHER CHARGES.
(a) The Borrower shall pay to the Administrative Agent, for the
account of the Issuing Lender and the L/C Participants, a letter of credit fee
with respect to each Letter of Credit, computed for the period from and
including the date of issuance of such Letter of Credit to the expiration date
of such Letter of Credit. The aggregate Letter of Credit fees payable shall be
calculated at a rate per annum equal to the Applicable Margin then in effect for
Loans which are LIBO Loans (calculated on the basis of the actual number of days
elapsed over a 360-day year) on the average daily outstanding L/C Obligations
during the calculation period (of which 1/4 of 1% of such amount shall be for
the account of the Issuing Lender with respect thereto and the remainder of such
amount shall be for the ratable account of the Issuing Lender and the L/C
Participations). Such fee shall be payable to the Administrative Agent, for the
ratable account of the Lenders, in arrears on each L/C Fee Payment Date and on
the Termination Date.
(b) In addition to the foregoing fees and commissions, the
Borrower shall pay or reimburse the Issuing Lender for such normal and customary
fees, costs and expenses as are incurred or charged by the Issuing Lender in
issuing, effecting payment under, amending or otherwise administering any Letter
of Credit issued by it.
(c) The Administrative Agent shall, promptly following its
receipt thereof, distribute to the Issuing Lender and the L/C Participants all
fees and commissions received by the Administrative Agent for their respective
accounts pursuant to this subsection.
Section 3.4. L/C PARTICIPATIONS.
(a) The Issuing Lender irrevocably agrees to grant and hereby
grants to each L/C Participant, and, to induce the Issuing Lender to issue
Letters of Credit hereunder, each L/C Participant irrevocably agrees to accept
and purchase and hereby accepts and purchases from the Issuing Lender, on the
terms and conditions hereinafter stated, for the L/C Participant's own account
and risk an undivided interest equal to the L/C Participant's Revolving Credit
Commitment Percentage from time to time in effect in such Issuing Lender's
obligations and rights under each Letter of Credit issued by such Issuing Lender
hereunder and the amount of each draft paid by such Issuing Lender thereunder.
Each L/C Participant unconditionally and irrevocably agrees with the Issuing
Lender that, if a draft is paid under any Letter of Credit issued by the Issuing
Lender for which the Issuing Lender is not reimbursed in full by the Borrower in
accordance with the terms of this Agreement, such L/C Participant shall pay to
the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's then Revolving Credit
Commitment Percentage of the amount of such draft, or any part thereof, which
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is not so reimbursed; provided, that, if such demand is made prior to 9:00 A.M.,
San Francisco time, on a Business Day, such L/C Participant shall make such
payment to the Issuing Lender prior to the end of such Business Day and
otherwise such L/C Participant shall make such payment on the next succeeding
Business Day.
(b) If any amount required to be paid by any L/C Participant to
the Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
portion of any payment made by such Issuing Lender under any Letter of Credit is
paid to such Issuing Lender within three Business Days after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand
an amount equal to the product of (i) such amount, times (ii) the daily average
federal funds rate, as quoted by the Issuing Lender, during the period from and
including the date such payment is required to the date on which such payment is
immediately available to the Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 3.4(a) is not in fact made available to the
Issuing Lender by such L/C Participant within three Business Days after the date
such payment is due, the Issuing Lender shall be entitled to recover from such
L/C Participant, on demand, such amount with interest thereon calculated from
such due date at the rate per annum applicable to Base Rate Loans hereunder. A
certificate of the Issuing Lender submitted to any L/C Participant with respect
to any amounts owing to the Issuing Lender under this subsection shall be
conclusive in the absence of manifest error.
(c) Whenever, at any time after the Issuing Lender has made
payment under any Letter of Credit issued by it and has received from any L/C
Participant its Revolving Credit Commitment Percentage of such payment in
accordance with Section 3.4(a), the Issuing Lender receives any payment related
to such Letter of Credit (whether directly from the Borrower or otherwise,
including proceeds of collateral applied thereto by the Issuing Lender), or any
payment of interest on account thereof, the Issuing Lender will promptly
distribute to such L/C Participant its Revolving Credit Commitment Percentage
thereof; provided, however, that in the event that any such payment received by
the Issuing Lender and distributed to the L/C Participants shall be required to
be returned by the Issuing Lender, each such L/C Participant shall return to
such Issuing Lender the portion thereof previously distributed by the Issuing
Lender to it.
Section 3.5. REIMBURSEMENT OBLIGATION OF THE BORROWER.
(a) The Borrower agrees to reimburse the Issuing Lender on the
same Business Day on which a draft is presented under any Letter of Credit
issued by such Issuing Lender for the account of the Borrower and paid by such
Issuing Lender, provided, that such Issuing Lender provides notice to the
Borrower prior to 9:00 A.M., San Francisco time, on such Business Day and
otherwise the Borrower will reimburse the Issuing Lender on the next succeeding
Business Day; provided, further, that the failure to provide such notice shall
not affect the absolute and unconditional obligation of the Borrower to
reimburse the Issuing Lender for any draft paid under any Letter of Credit
issued by it. The Issuing Lender shall provide notice to the Borrower on such
Business Day as a draft is presented and paid by the Issuing Lender indicating
the amount of (i) such draft so paid and (ii) any taxes, fees, charges or other
costs or expenses incurred by the Issuing
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Lender in connection with such payment. Each such payment shall be made to the
Issuing Lender at its address for notices specified herein in lawful money of
the currency in which such Letter of Credit was denominated and in immediately
available funds.
(b) Interest shall be payable on any and all amounts remaining
unpaid by the Borrower under this subsection from the date such amounts become
payable until payment in full at the rate provided in Section 2.10(c) with
respect to due and unpaid Reimbursement Obligations.
(c) Each drawing under any Letter of Credit shall constitute a
request by the Borrower to the Administrative Agent for a borrowing of Base Rate
Loans which Loans shall be used to reimburse the Issuing Lender as required by
this subsection. The making of such Loans shall be deemed a payment of amounts
owing pursuant to paragraph (b) to the extent of such Loans. The Borrowing Date
with respect to such borrowing shall be the date of such drawing.
Section 3.6. OBLIGATIONS ABSOLUTE.
(a) The Reimbursement Obligations of the Borrower under Section
3.5(a) shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender, any L/C Participant or
any beneficiary of a Letter of Credit.
(b) The Borrower also agrees with the Issuing Lender that the
Issuing Lender shall not be responsible for, and the Reimbursement Obligations
of the Borrower under Section 3.5(a) shall not be affected by, among other
things, (i) the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or (ii) any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or (iii) any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee.
(c) Neither the Issuing Lender with respect to any Letter of
Credit nor any L/C Participant with respect thereto shall be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with such Letter of
Credit, except for errors or omissions caused by the Issuing Lender's gross
negligence or willful misconduct.
(d) The Borrower agrees that any action taken or omitted by the
Issuing Lender under or in connection with any Letter of Credit issued by it or
the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of California, shall be binding on the
Borrower and shall not result in any liability of the Issuing Lender or any L/C
Participant to the Borrower.
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Section 3.7. LETTER OF CREDIT PAYMENTS. If any draft shall be presented
for payment under any Letter of Credit, the responsibility of the Issuing Lender
thereof to the Borrower in connection with such draft shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such
Letter of Credit.
Section 3.8. APPLICATION. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions
of this Article 3, the provisions of this Article 3 shall apply.
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ARTICLE 4.
CONDITIONS PRECEDENT
Section 4.1. CONDITIONS TO INITIAL LOANS. The agreement of each Lender
to make the initial Loans and other extensions of credit requested to be made by
it is subject to the satisfaction, immediately prior to or concurrently with the
making of such Loan or other extension of credit, of the following conditions
precedent:
(a) CREDIT DOCUMENTS. The Administrative Agent shall have
received (i) this Agreement, executed and delivered by a duly authorized officer
of the Borrower, and (ii) if requested by any Lender prior to the Closing Date,
the appropriate Note for such Lender.
(b) CORPORATE PROCEEDINGS OF THE BORROWER. The Administrative
Agent shall have received a copy of the resolutions, in form and substance
satisfactory to the Administrative Agent, of the Board of Directors of the
Borrower authorizing (i) the execution, delivery and performance of this
Agreement and the other Credit Documents to which it is a party, and (ii) the
borrowings contemplated hereunder, certified by the Secretary or an Assistant
Secretary of the Borrower as of the Closing Date, which certificate shall be in
form and substance satisfactory to the Administrative Agent and shall state that
the resolutions thereby certified have not been amended, modified, revoked or
rescinded.
(c) BORROWER INCUMBENCY CERTIFICATE. The Administrative Agent
shall have received a Certificate of the Borrower, dated the Closing Date, as to
the incumbency and signature of the officers of the Borrower executing any
Credit Document satisfactory in form and substance to the Administrative Agent.
(d) CORPORATE DOCUMENTS. The Administrative Agent shall have
received true and complete copies of the certificate of incorporation, bylaws,
and investment policy of the Borrower, certified as of the Closing Date as
complete and correct copies thereof by the Secretary or an Assistant Secretary
of the Borrower.
(e) LEGAL OPINIONS. The Administrative Agent shall have received
the executed legal opinion of Brobeck Phleger & Harrison LLP, counsel to the
Borrower, substantially in the form of Exhibit C.
(f) FEES. Each of the Administrative Agent and the Co-Arranger
shall have received the fees to be received on the Closing Date referred to in
Section 2.18 and other amounts due and payable on or prior to the Closing Date,
including, to the extent invoiced a reasonable time prior to the Closing Date,
reimbursement or payment of all out-of-pocket expenses required to be reimbursed
or paid by the Borrower and its Subsidiaries hereunder or under any other Credit
Document.
Section 4.2. CONDITIONS TO EACH LOAN. The agreement of each Lender to
make any Loan (including any conversion of one Type to another or any
continuation of a Loan) to be made
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by it on any date and of the Issuing Lender to issue any Letter of Credit
(including, without limitation, any Loan to be made or Letter of Credit to be
issued on the Closing Date) is subject to the satisfaction of the following
conditions precedent:
(a) NOTICES. (i) In the case of each borrowing of a Loan pursuant
to Section 2.2 of this Agreement, the Borrower shall have delivered to the
Administrative Agent a Notice of Borrowing (Drawing) in the form of Exhibit D
attached hereto, duly completed and executed by a Responsible Officer, not later
than the dates and times prescribed in Section 2.2; (ii) in the case of each
conversion of a Loan pursuant to Section 2.8(a) of this Agreement, the Borrower
shall have delivered to the Administrative Agent a Notice of Borrowing
(Conversion) in the form of Exhibit E attached hereto, duly completed and
executed by a Responsible Officer, not later than the dates and times prescribed
in Section 2.8(a); (iii) in the case of each continuation of a Loan pursuant to
Section 2.8(b) of this Agreement, the Borrower shall have delivered to the
Administrative Agent a Notice of Borrowing (Continuations) in the form of
Exhibit F attached hereto, duly completed and executed by a Responsible Officer,
not later than the dates and times prescribed in Section 2.8(b); and (iv) in the
case of each Letter of Credit, the Borrower shall have provided such notice,
including execution and delivery of an Application, if required, as may be
required under Article 3 hereof.
(b) REPRESENTATIONS AND WARRANTIES. Each of the representations
and warranties made by the Borrower requesting such Loan or other extension of
credit in or pursuant to the Credit Documents shall be true and correct in all
material respects on and as of such date as if made on and as of such date
except to the extent that such representations and warranties are given as of an
earlier date, in which case, they shall be true and correct in all material
respects as of such earlier date.
(c) NO DEFAULT. No Default or Event of Default shall have
occurred and be continuing on such date or after giving effect to the Loans and
other extensions of credit requested to be made on such date.
(d) NO MATERIAL ADVERSE CHANGE. No event shall have occurred
since December 31, 1997, which has or is reasonably likely, in the opinion of
the Required Lenders, to have a material adverse effect on the business,
financial condition, financial performance, or properties of the Borrower and
its Subsidiaries, taken as a whole.
(e) ADDITIONAL MATTERS. All corporate and other proceedings, and
all documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Credit Documents shall
be satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
in respect of any aspect or consequence of the transactions contemplated hereby
or thereby as it shall reasonably request.
Each borrowing (including each conversion and each continuation of any
borrowing) and each request for issuance of a Letter of Credit by the Borrower
hereunder shall constitute
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a representation and warranty by the Borrower as of the date thereof that the
conditions contained in this Section have been satisfied.
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ARTICLE 5.
REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this Agreement
and to make Loans hereunder, the Borrower hereby represents and warrants to each
Lender and the Administrative Agent as follows:
Section 5.1. FINANCIAL CONDITION.
(a) The consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at December 31, 1997 and the related consolidated
statements of income and of cash flows for the fiscal year ended on such date,
reported on by KPMG Peat Marwick, copies of which have heretofore been furnished
to each Lender, are complete and correct and present fairly the consolidated
financial condition of the Borrower and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the fiscal year then ended. The unaudited consolidated balance
sheet of the Borrower and its consolidated Subsidiaries as at March 31, 1998 and
the related unaudited consolidated statements of income and of cash flows for
the three-month period ended on such date, certified by a Responsible Officer,
copies of which have heretofore been furnished to each Lender, are complete and
correct and present fairly the consolidated financial condition of the Borrower
and its consolidated Subsidiaries as at such date, and the consolidated results
of their operations and their consolidated cash flows for the three-month period
then ended (subject to normal year-end audit adjustments). All such financial
statements, including the related schedules and notes thereto, have been
prepared in accordance with GAAP applied consistently throughout the periods
involved (except as approved by such accountants or Responsible Officer, as the
case may be, and as disclosed therein).
(b) Neither the Borrower nor any of its consolidated Subsidiaries
had, at the date of the most recent balance sheet referred to above, any
material Guarantee Obligation, contingent liability or liability for taxes, or
any long-term lease or unusual forward or long-term hedging commitment,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing statements or in
the notes thereto.
(c) During the period from December 31, 1997 to and including the
date hereof, there has been no sale, transfer or other disposition by the
Borrower or any of its consolidated Subsidiaries of any material part of its
business or property and no purchase or other acquisition of any business or
property (including any capital stock of any other Person) material in relation
to the consolidated financial condition of the Borrower and its consolidated
Subsidiaries at December 31, 1997.
Section 5.2. NO CHANGE. Since December 31, 1997, there has been no
development or event which has had or could reasonably be expected to have a
Material Adverse Effect.
Section 5.3. CORPORATE EXISTENCE; COMPLIANCE WITH LAW. Each of the
Borrower and its Subsidiaries (a) is duly organized, validly existing and (to
the extent applicable) in good standing
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under the laws of the jurisdiction of its organization, (b) has the corporate
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which it
is currently engaged, (c) is duly qualified as a foreign corporation and in good
standing under the laws of each jurisdiction where its ownership, lease or
operation of property or the conduct of its business requires such
qualification, except to the extent that the failure to maintain such status
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect and (d) is in compliance with all Requirements of Law except to the
extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 5.4. CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
The Borrower has the corporate power and authority, and the legal right, to
make, deliver and perform the Credit Documents to which it is a party and to
borrow hereunder, and has taken all necessary corporate action to authorize the
borrowings on the terms and conditions of this Agreement and any Notes and to
authorize the execution, delivery and performance of the Credit Documents to
which it is a party. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Credit Documents to
which the Borrower is a party. This Agreement has been, and each other Credit
Document to which it is a party will be, duly executed and delivered on behalf
of the Borrower. This Agreement constitutes, and each other Credit Document to
which it is a party when executed and delivered will constitute, a legal, valid
and binding obligation of the Borrower enforceable against the Borrower in
accordance with its terms, subject to the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
Section 5.5. NO LEGAL BAR. The execution, delivery and performance of
each Credit Document, the incurrence or issuance of and use of the proceeds of
the Loans and of drawings under the Letters of Credit and the transactions
contemplated by the Credit Documents (a) will not violate the Certificate of
Incorporation or Bylaws of the Borrower or any material Requirement of Law or
any material Contractual Obligation applicable to or binding upon the Borrower
or any of its Subsidiaries or any of their respective properties or assets, in
any manner and (b) will not result in the creation or imposition of any Lien on
any properties or assets of the Borrower or any of its Subsidiaries pursuant to
any Requirement of Law applicable to it, as the case may be, or any of its
Contractual Obligations.
Section 5.6. NO MATERIAL LITIGATION. Except to the extent described in
Schedule 5.6, no litigation by, investigation by, or proceeding of or before any
arbitrator or any Governmental Authority is pending or, to the knowledge of the
Borrower, threatened by or against the Borrower or any of its Subsidiaries, or
against any of its or their respective properties or revenues, with respect to
any Credit Document, the Loans made hereunder, the use of proceeds thereof, or
any drawings under a Letter of Credit and the other transactions contemplated
hereby or which could reasonably be expected to have a Material Adverse Effect
and all applicable waiting periods have expired
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without any action being taken or threatened by any Governmental Authority which
would restrain, prevent or otherwise impose material adverse conditions on the
transactions contemplated hereby or thereby or which would be reasonably likely
to have a Material Adverse Effect.
Section 5.7. NO DEFAULT. None of the Borrower or any of its Subsidiaries
is in default under or with respect to any of its Contractual Obligations in any
respect which could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
Section 5.8. OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and its
Subsidiaries has good record and marketable title in fee simple to, or a valid
leasehold interest in, all its real property, and good title to, or a valid
leasehold or license interest in, all its other property (except Intellectual
Property), and none of such property is subject to any Lien except as permitted
by Section 7.3.
Section 5.9. INTELLECTUAL PROPERTY. The Borrower and each of its
Subsidiaries owns, or is licensed to use, all trademarks, trade names,
copyrights, technology, know-how and processes necessary for the conduct of its
business as currently conducted except for those the failure to own or license
which could not reasonably be expected to have a Material Adverse Effect (the
"Intellectual Property"). No material claim has been asserted and is pending by
any Person challenging or questioning the use of any such Intellectual Property
or the validity or effectiveness of any such Intellectual Property, nor does the
Borrower know of any valid basis for any such claim. To the best of Borrower's
knowledge, the use of such Intellectual Property by the Borrower and its
Subsidiaries does not infringe on the rights of any Person, except for such
claims and infringements that, in the aggregate, could not reasonably be
expected to have a Material Adverse Effect.
Section 5.10. TAXES. Each of the Borrower and its Subsidiaries has filed
or caused to be filed all material tax returns which, to the knowledge of the
Borrower, are required to be filed and has paid all taxes shown to be due and
payable on said returns or on any assessments made against it or any of its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); no tax Lien has
been filed; to the knowledge of the Borrower, no claim is being asserted, with
respect to any such tax, fee or other charge which would reasonably be likely to
have a Material Adverse Effect.
Section 5.11. FEDERAL REGULATIONS. No part of the proceeds of any Loans
will be used for "purchasing" or "carrying" any "margin stock" within the
respective meanings of each of the quoted terms under Regulation U of the Board
of Governors of the Federal Reserve System as now and from time to time
hereafter in effect except in compliance with said Regulation U. If requested by
any Lender or the Administrative Agent, the Borrower will furnish to the
Administrative Agent and each Lender a statement to the foregoing effect in
conformity with the requirements of FR Form U-1 referred to in said Regulation
U, as the case may be.
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Section 5.12. EMPLOYEE BENEFITS. Neither a Reportable Event nor an
"accumulated funding deficiency" (within the meaning of Section 412 of the Code
or Section 302 of ERISA) has occurred during the five-year period prior to the
date on which this representation is made or deemed made with respect to any
Plan, and each Plan has complied in all material respects with the applicable
provisions of ERISA and the Code. No termination of a Single Employer Plan has
occurred, and no Lien in favor of the PBGC or a Plan has arisen, during such
five-year period. The present value of all accrued benefits under each Single
Employer Plan (based on those assumptions used to fund such Plans) did not, as
of the last annual valuation date prior to the date on which this representation
is made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits by more than $1,000,000. Neither the Borrower nor any
Commonly Controlled Entity has had a complete or partial withdrawal from any
Multiemployer Plan, and neither the Borrower nor any Commonly Controlled Entity
would become subject to any liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
Section 5.13. INVESTMENT COMPANY ACT: OTHER REGULATIONS. The Borrower is
not an "investment company", or a company "controlled" by an "investment
company", within the meaning of the Investment Company Act of 1940, as amended.
The Borrower is not subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
Section 5.14. SUBSIDIARIES. On the Closing Date, the Subsidiaries of the
Borrower, their jurisdiction of incorporation and the percentage of the Capital
Stock thereof which is owned (directly or indirectly) by the Borrower shall be
as set forth on Schedule 5.14.
Section 5.15. ENVIRONMENTAL MATTERS. Except as set forth on Schedule
5.15:
(a) none of the Borrower, any of its Subsidiaries or any of their
respective operations or present or past Property are subject to any
investigation by, or any judicial or administrative proceeding, order, judgment,
settlement, decree or other agreement alleging or addressing (i) a material
violation of any Environmental, Health or Safety Requirement of Law; (ii) any
Remedial Action; or (iii) any material claims or Liabilities and Costs arising
from the Release or threatened Release of a Contaminant into the environment,
nor has the Borrower or any of its Subsidiaries received any notice of the
foregoing, except, in each case, for any matter that, individually or in the
aggregate is not reasonably likely to have a Material Adverse Effect;
(b) none of the Borrower or any of its Subsidiaries is or has
been the owner or operator of any Property that has any of the following that
would reasonably be likely to have a Material Adverse Effect: (i) any past or
present
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on-site generation, treatment, recycling, storage or disposal of any
hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any state
or local equivalent; (ii) any past or present landfill, waste-pile, underground
storage tank or surface impoundment; (iii) any asbestos-containing material or
any Contaminant; (iv) any polychlorinated biphenyls (PCBs) used in hydraulic
oils, electrical transformers or other equipment;
(c) to the best of the Borrower's knowledge, no Environmental
Lien has attached to any Property of the Borrower or any of its Subsidiaries
that would reasonably be likely to have a Material Adverse Effect;
(d) there have been no Releases of any Contaminants into the
environment in reportable quantities by the Borrower or any of its Subsidiaries
or, to the best of the Borrower's knowledge, any other Person that would
reasonably be likely to have a Material Adverse Effect;
(e) to the best of the Borrower's knowledge, neither the Borrower
nor any of its Subsidiaries has any contingent liability in connection with any
Release or threatened Release of any Contaminants into the environment that
would reasonably be likely to have a Material Adverse Effect;
(f) neither the Borrower nor any of its Subsidiaries has disposed
of or sent or directly arranged for the transport of any waste or Contaminant at
or to any site listed or proposed for listing on the National Priorities List
("NPL") pursuant to CERCLA or on the Comprehensive Environmental Response
Compensation Liability Information System List ("CERCLIS"), or any similar state
list, or any other location the effect of which would reasonably be likely to
have a Material Adverse Effect;
(g) no present or past Property of the Borrower or any of its
Subsidiaries is listed or proposed for listing on the NPL pursuant to CERCLA or
on the CERCLIS or any similar state list of sites requiring Remedial Action, and
the Borrower and its Subsidiaries are unaware of any conditions on such Property
that would qualify such Property for inclusion on any such list, except, in
either case, where such listing would not reasonably be likely to have a
Material Adverse Effect;
(h) neither the Borrower nor any of its Subsidiaries is subject
to any Environmental Property Transfer Act as a result of the transactions
contemplated by the Credit Documents or, to the extent such acts are applicable
to any such property, the Borrower or the relevant Subsidiary has fully complied
with the requirements of such acts. except where the failure to comply would not
reasonably be likely to have a Material Adverse Effect;
(i) neither the Borrower nor any of its Subsidiaries has assumed,
either contractually or by operation of law, any liabilities or potential
liabilities under
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any Environmental, Health or Safety Requirements of Law except
where (i) such assumption would not reasonably be likely to have a Material
Adverse Effect or (ii) the Borrower has received a written indemnity with
respect to such liabilities or potential liabilities (as the case may be) from a
Person (other than the Borrower or any of its Subsidiaries) who would reasonably
be expected to pay in full all reasonable claims in respect of such indemnity;
and
(j) the Borrower and each of its Subsidiaries has obtained, and
is in compliance with, all permits, approvals, registrations, authorization
licenses, variances, facility security clearances and personnel security
clearances, and all permissions required from a Governmental Authority, required
under the Environmental, Health or Safety Requirements of Law, except where the
failure to obtain or comply therewith would not, in the aggregate, reasonably be
likely to have a Material Adverse Effect.
Section 5.16. ACCURACY AND COMPLETENESS OF INFORMATION. The factual
statements contained in the financial statements referred to in Sections 4.1(a)
and (b), the Credit Documents (including the schedules thereto) and any other
certificates or documents furnished or to be furnished to the Administrative
Agent or the Lenders from time to time in connection with this Agreement, taken
as a whole, do not and will not, to the best knowledge of the Borrower and its
Subsidiaries, as of the date when made, contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances in
which the same were made, all except as otherwise qualified herein or therein,
such knowledge qualification being given only with respect to factual statements
made by Persons other than the Borrower or any of its Subsidiaries.
Section 5.17. PROJECTIONS. Each of the Borrower's business plans and all
other financial projections and related materials and documents delivered to the
Lenders pursuant hereto were prepared in good faith on the basis of the
assumptions accompanying them, and such projections and assumptions as of the
date of preparation thereof were, and as of the Closing Date are, reasonable in
light of the then current and foreseeable business conditions and prospects of
the Borrower and its Subsidiaries and represented management's opinion of the
Borrower's and its Subsidiaries' projected financial performance based on the
information available to the Borrower at the time so furnished, it being
understood that nothing contained in this Section shall constitute a
representation or warranty that such future financial performance or results of
operations will in fact be achieved.
Section 5.18. SOLVENCY. The Borrower is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be, Solvent.
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ARTICLE 6.
AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Aggregate Revolving Credit
Commitment remains in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Credit Document, it shall and
(except in the case of delivery of financial information, reports and notices)
shall cause each of its Subsidiaries to:
Section 6.1. FINANCIAL STATEMENTS. Furnish to the Administrative Agent
(who shall promptly forward such documents to the Lenders):
(a) as soon as available, but in any event within 90 days after
the end of each fiscal year of the Borrower after the Closing Date, a copy of
the consolidated balance sheet of the Borrower and its consolidated Subsidiaries
as at the end of such year and the related consolidated statements of income and
cash flows for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by KPMG Peat Marwick or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal year
of the Borrower, the unaudited consolidated balance sheets of the Borrower and
its consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and cash flows of the Borrower and
its consolidated Subsidiaries for such quarter and the portion of the fiscal
year through the end of such quarter, setting forth in each case in comparative
form the figures for the previous year, certified by a Responsible Officer as
being fairly stated in all material respects (subject to normal year-end audit
adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein). To the extent that they include the information required
to be delivered to the Administrative Agent by Section 6.1(a) and (b), the
delivery of the financial statements and reports which the Borrower files with
the SEC pursuant to Section 6.2 shall be deemed to satisfy the requirements of
this Section 6.1. If any information required by Section 6.1(a) and (b) is not
included in such statements and reports, the Borrower shall forward it to the
Administrative Agent within the time frames established in Section 6.1(a) and
(b).
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Section 6.2. CERTIFICATES; OTHER INFORMATION. Furnish to the
Administrative Agent (who shall promptly forward such documents to the Lenders):
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a) and (b), a certificate of a Responsible Officer,
substantially in the form of Exhibit G;
(b) within five days after the same are sent, copies of all
financial statements and reports which the Borrower sends to its stockholders or
debtholders generally, and within five days after the same are filed, copies of
all financial statements and reports which the Borrower may make to, or file
with, the Securities and Exchange Commission or any successor or analogous
Governmental Authority; and
(c) promptly, such additional financial and other information as
any Lender (acting through the Administrative Agent) may from time to time
reasonably request.
Section 6.3. PAYMENT OF OBLIGATIONS. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be.
Section 6.4. CONDUCT OF BUSINESS AND MAINTENANCE OF EXISTENCE.
(a) Continue to engage in business of the same general type as
now conducted by it and preserve, renew and keep in full force and effect its
corporate existence and take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except (i) as otherwise permitted pursuant to Section 7.5 and (ii) to
the extent that the failure to maintain or preserve such rights, privileges and
franchises would not reasonable be expected to have a Material Adverse Effect.
(b) Comply with all Contractual Obligations and Requirements of
Law except to the extent that failure to comply therewith could not, in the
aggregate, be reasonably expected to have a Material Adverse Effect.
Section 6.5. MAINTENANCE OF PROPERTY; INSURANCE.
(a) Keep all property useful and necessary in its business in
good working order and condition ordinary wear and tear excepted; provided, that
nothing contained in this Section shall be deemed to prohibit the Borrower or
any of its Subsidiaries from discontinuing the operation or maintenance of any
such property if such discontinuance (i) is, in the reasonable judgment of the
Borrower or such Subsidiary, necessary or appropriate in the conduct of its
business, (ii) is otherwise
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permitted by this Agreement and (iii) would not be reasonably likely to have a
Material Adverse Effect.
(b) Maintain with financially sound and reputable insurance
companies insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies engaged in the same or a similar business; and furnish to each Lender,
upon written request, full information as to the insurance carried.
Section 6.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS.
Keep proper books of records and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities; and
(subject to applicable Requirements of Law concerning classified information and
to the rights of any tenants or licensees of such properties and confidentiality
or non-disclosure obligations by third parties) permit representatives of the
Administrative Agent (or, after the occurrence and during the continuance of any
Event of Default under paragraph (a) of Article 8, any Lender) to, at the cost
of the Administrative Agent at any time other than during the occurrence of a
Default or an Event of Default, visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired (upon reasonable written notice)
and to discuss the business, operations, properties and financial and other
condition of the Borrower and its Subsidiaries with officers and employees of
the Borrower and its Subsidiaries and with its independent certified public
accountants. All reasonable costs and expenses incurred by the Administrative
Agent as a result of any inspections, audits and examinations conducted pursuant
to this Section shall be paid by the Borrower.
Section 6.7. NOTICES. Promptly give notice to the Administrative Agent
and each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) the following events, as soon as possible and in any event
within 30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the terminating, Reorganization or Insolvency of, any Plan;
and
(c) any development or event which has had or could reasonably be
expected to have a Material Adverse Effect.
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Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and stating what action the Borrower proposes to take with respect thereto.
Section 6.8. YEAR 2000 COMPLIANT. The Borrower and its Subsidiaries will
be Year 2000 Compliant on or before June 30, 1999 and at all times thereafter.
For purposes of this Agreement, the term "Year 2000 Compliant" shall mean the
ability of the material software and other material processing capabilities of
the Borrower and its Subsidiaries to correctly interpret and manipulate all
data, in whatever form including printed form, screen displays, financial
records, calculations and loan-related data, so as to avoid errors in processing
that may otherwise occur because of the inability of the software of other
processing capabilities to recognize accurately the year 2000 or subsequent
dates.
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ARTICLE 7.
NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Aggregate Revolving Credit
Commitment remains in effect or any amount is owing to any Lender or the
Administrative Agent hereunder or under any other Credit Document, it shall not
and (except in the case of Section 7.1) shall not permit any of its Subsidiaries
to, directly or indirectly:
Section 7.1. FINANCIAL CONDITION COVENANTS.
(a) MINIMUM QUICK RATIO. Permit the Quick Ratio on the last day
of any fiscal quarter of the Borrower to be less than 1.5 to 1.0.
(b) MAXIMUM TOTAL LIABILITIES TO TANGIBLE NET WORTH. Permit the
ratio of Total Liabilities to Tangible Net Worth as of the last day of any
fiscal quarter of the Borrower to be greater than 0.5 to 1.0.
(c) MINIMUM FIXED CHARGE COVERAGE RATIO. Permit the Fixed Charge
Coverage Ratio of the Borrower and its Subsidiaries on the last day of any
fiscal quarter of the Borrower to be less than 1.7 to 1.0.
(d) MINIMUM TANGIBLE NET WORTH. Permit Tangible Net Worth on the
last day of any fiscal quarter of the Borrower to be less than the sum of (a)
$204,420,000 plus (b) 75 percent of Net Income for such quarter, cumulated for
each quarter beginning with the quarter ending approximately June 30, 1998,
provided, however, that Net Income for any fiscal quarter shall not be added to
Tangible Net Worth if it is a negative number, less (c) any charges taken by the
Borrower and its Subsidiaries for the purchase of in-process technology in such
fiscal quarter, cumulated for each quarter beginning with the quarter ending
approximately June 30, 1998, plus (d) net proceeds received from the issuance of
any Capital Stock of the Borrower.
Section 7.2. LIMITATION ON INDEBTEDNESS. Create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness of the Borrower and its Subsidiaries under this
Agreement and the other Credit Documents, and other Indebtedness of the Borrower
arising pursuant to Interest Rate Agreements, currency hedging agreements and
foreign exchange contracts to which any Lender or Affiliate thereof is a party;
(b) Indebtedness listed on Schedule 7.2 and any refinancings,
refundings, renewals or extensions thereof; provided, that (x) the aggregate
principal amount of replacement Indebtedness is not greater than the principal
amount of the Indebtedness being so replaced and (y) the terms of such
replacement Indebtedness are, in the aggregate, no less favorable to the
Borrower or such Subsidiary than the terms of the Indebtedness being so
replaced;
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(c) Financing Leases, synthetic leases and purchase money
Indebtedness incurred by the Borrower or any of its Subsidiaries to finance the
acquisition of tangible or intangible assets, and Indebtedness incurred by the
Borrower or any of its Subsidiaries to refinance such Financing Leases,
synthetic leases and purchase money Indebtedness, in an aggregate principal
amount not to exceed $20,000,000 at any one time outstanding;
(d) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary not to exceed $10,000,000 (in
the net aggregate) at any one time outstanding;
(e) Permitted Subordinated Indebtedness of the Borrower;
(f) Indebtedness of the Borrower in respect of unsecured standby
and commercial letters of credit issued in an aggregate face amount (including,
without limitation, any reimbursement obligations owing in respect thereof) not
to exceed $10,000,000 at any one time outstanding; and
(g) additional Indebtedness in an aggregate principal amount not
to exceed 10% of Tangible Net Worth at any time outstanding.
Section 7.3. LIMITATION ON LIENS. Create, incur, assume or suffer to
exist any Lien upon any of its property, assets or revenues, whether now owned
or hereafter acquired, except for:
(a) Liens for taxes, assessments and governmental charges not yet
due or which are being contested in good faith by appropriate proceedings,
provided, that adequate reserves with respect thereto are maintained on the
books of the Borrower or its Subsidiaries, as the case may be, in conformity
with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 60 days or which are being contested
in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation and deposits
securing liability to insurance carriers under insurance or self-insurance
arrangements;
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature incurred
in the ordinary course of business;
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(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business which, in the
aggregate, are not substantial in amount and which do not in any case materially
detract from the value of the property subject thereto or materially interfere
with the ordinary conduct of the business of the Borrower or any Subsidiary;
(f) Liens related to precautionary UCC financing statement
filings regarding operating leases entered into by the Borrower and its
Subsidiaries in the ordinary course of business;
(g) Liens in favor of banking institutions arising as a matter of
law and encumbering the deposits (including the right of set off held by such
banking institutions in the ordinary course of business and which are within the
general parameters customary in the banking industry);
(h) Liens in favor of customs and revenue authorities arising as
a matter of law to secure the payment of customs duties in connection with the
importation of goods; and
(i) Liens listed on Schedule 7.3, securing Indebtedness permitted
by Section 7.2, provided, that no such Lien is spread to cover any additional
property after the Closing Date and that the amount of Indebtedness secured
thereby is not increased;
(j) purchase money Liens (including the interest of a lessor
under a Financing Lease) and Liens to which any Property is subject at the time
of the acquisition thereof securing Indebtedness permitted by Section 7.2(c) and
limited in each case to the property purchased or subject to such lease;
(k) any attachment or judgment Lien the existence of which does
not constitute an Event of Default under paragraph (g) of Article 8; and
(l) additional Liens securing Indebtedness which, in the
aggregate with the amount guaranteed pursuant to any Guarantee Obligation
created in reliance upon the provisions of Section 7.4, does not exceed 10% of
the consolidated Tangible Net Worth of the Borrower and its Subsidiaries
(measured as of the end of the previous fiscal quarter); provided, that no
Default or Event of Default has occurred and is continuing at the time that such
Indebtedness is incurred.
Section 7.4. LIMITATION ON GUARANTEE OBLIGATIONS. Create, incur, assume
or suffer to exist any Guarantee Obligation except:
(a) Guarantee Obligations listed on Schedule 7.4;
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(b) Guarantee Obligations arising on account of obligations,
warranties and indemnities which (i) are not with respect to Indebtedness of any
Person, (ii) have been or are undertaken or made in the ordinary course of
business or in connection with the sale of assets permitted by Section 7.6 and
(iii) are not for the benefit of or in favor of an Affiliate of the Borrower or
any of its Subsidiaries;
(c) Guarantee Obligations of the Borrower in respect of
obligations of any of its Subsidiaries;
(d) Guarantee Obligations with respect to obligations, warranties
and indemnities (other than with respect to Indebtedness) arising in the
ordinary course of business;
(e) Guarantee Obligations constituting Investments pursuant to
Section 7.8; and
(f) additional Guarantee Obligations of the Borrower and its
Subsidiaries in respect of obligations which does not exceed 10% of the
consolidated Tangible Net Worth of the Borrower and its Subsidiaries (measured
as of the end of the previous quarter); provided, that no Default or Event of
Default has occurred and is continuing at the time that such Guarantee
Obligation is incurred.
Section 7.5. LIMITATION ON FUNDAMENTAL CHANGES. Enter into any merger,
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
or otherwise dispose of, all or substantially all of its property, business or
assets, except:
(a) any Subsidiary of the Borrower may be merged or consolidated
with or into the Borrower (provided, that the Borrower shall be the continuing
or surviving corporation) or with or into any one or more wholly owned
Subsidiaries of the Borrower (provided, that a wholly owned Subsidiary shall be
the continuing or surviving corporation); and
(b) any Subsidiary may sell, lease, transfer or otherwise dispose
of any or all of its assets (upon voluntary liquidation or otherwise) to the
Borrower or any other Subsidiary of the Borrower; and
(c) the Borrower may be merged or consolidated with or into any
other Person; provided, that (i) the Borrower shall be the continuing or
surviving corporation, and (ii) at least 30 days prior to such merger or
consolidation, the Borrower shall have submitted pro forma financial statements
to the Administrative Agent and the Lenders demonstrating to the reasonable
satisfaction of the Lenders that the Borrower shall be in compliance with all
covenants contained in this Article 7 immediately following the proposed merger.
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Section 7.6. LIMITATION ON SALE OF ASSETS. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, or, in the case of any Subsidiary, issue or
sell any shares of such Subsidiary's Capital Stock to any Person other than the
Borrower or any wholly owned Subsidiary, except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale or other disposition of obsolete or worn out
property;
(c) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(d) assignments and licenses of intellectual property of the
Borrower and its Subsidiaries in the ordinary course of business;
(e) leases of owned real property and subleases of leased real
property, to the extent such leases and subleases have anticipated annual
rentals of less than $10,000,000 each; provided, however, leases and subleases
of real property among the Borrower and its subsidiaries or among such
subsidiaries shall be permitted without regard to anticipated annual rentals;
(f) sales permitted by Sections 7.5 or 7.9; and
(g) the sale or other disposition of property, business or assets
with a value not exceeding 5% of the consolidated Tangible Net Worth in any
fiscal year.
Section 7.7. LIMITATION ON RESTRICTED PAYMENTS. Declare or pay any
dividend (other than dividends payable solely in common stock of the Borrower)
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any shares of any class of Capital Stock of the Borrower
or any warrants or options to purchase any such Stock, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly
or indirectly, whether in cash or property or in obligations of the Borrower or
any Subsidiary (such declarations, payments, setting apart, purchases,
redemptions, defeasances, retirements, acquisitions and distributions being
herein called "Restricted Payments"), except that, during such time as no
Default or Event of Default has occurred and is continuing or would result
therefrom, the Borrower may make Restricted Payments with respect to (a)
employee or director stock options, stock incentive plans or restricted stock
plans of the Borrower, (b) the purchase from time to time by the Borrower of its
common stock (for not more than market price) with the proceeds of the exercise
by grantees under any equity-based incentive plan (c) other purchases from time
to time by the Borrower of its common
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stock not to exceed $10,000,000 in the aggregate since the date hereof and (d)
transactions otherwise permitted pursuant to Section 7.14.
Section 7.8. LIMITATION ON INVESTMENTS. Make any Investment (other than
Investments for which and to the extent that the consideration is capital stock
of the Borrower or its Subsidiaries) in any Person after the Closing Date,
except:
(a) Investments in accordance with the Borrower's investment
policy adopted by the Board of the Borrower and amended from time to time with
the approval of the Administrative Agent;
(b) Investments received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in the
ordinary course of business;
(c) Investments on account of intercompany loans which are
permitted by Section 7.2(d);
(d) extensions of trade credit in the ordinary course of business
and endorsement of negotiable instruments for deposit or collection or similar
transactions;
(e) loans and advances to employees of the Borrower and its
Subsidiaries for travel, entertainment and relocation expenses in the ordinary
course of business;
(f) Investments in joint ventures or the capital stock, assets,
obligations or securities of or other interests in Persons (i) not exceeding
$25,000,000 in the aggregate in any fiscal year if there are any Loans
outstanding hereunder at the time of the relevant Investment; provided, however,
that the Borrower shall during the time such Loans are outstanding maintain a
balance of Investments permitted by paragraph (a) above of at least $50,000,000;
and (ii) not exceeding $50,000,000 in the aggregate in any fiscal year if there
are no Loans outstanding under this Agreement at the time of the relevant
Investment; and
(g) Investments accepted in connection with a sale of assets or
other property permitted under this Agreement.
Section 7.9. LIMITATION ON TRANSACTIONS WITH AFFILIATES. Enter into any
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) otherwise permitted under this Agreement, (b) in the
ordinary course of the Borrower's or such Subsidiary's business and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be,
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than it would obtain in a comparable arm's length transaction with a Person
which is not an Affiliate; provided, however, that nothing contained herein
shall be deemed to prohibit (i) employment or compensation agreements or other
arrangements with officers or directors of the Borrower or any of its
Subsidiaries which have been approved by the Board of Directors of the Borrower
or any committee of the disinterested directors of the Borrower, (ii) existing
management agreements, (iii) stock options and awards granted to employees and
directors of the Borrower or any of its Subsidiaries under existing Plans or
other employee benefit Plans, and (iv) any contract or transaction providing for
indemnification of officers or directors of the Borrower or any of its
Subsidiaries from liability, or providing or maintaining insurance or other
arrangements on behalf of any such officer or director against any liability
asserted against such person and incurred in or arising out of such capacity.
Section 7.10. LIMITATION ON SALES AND LEASEBACKS. Enter into any
arrangement with any Person providing for the leasing by the Borrower or any
Subsidiary of real or personal property which has been or is to be sold or
transferred by the Borrower or such Subsidiary to such Person or to any other
Person to whom funds have been or are to be advanced by such Person on the
security of such property or rental obligations of the Borrower or such
Subsidiary, other than any such transactions relating to the sale and lease of
equipment upon terms and subject to conditions satisfactory to the
Administrative Agent to the extent that the aggregate fair market value of all
equipment sold does not exceed $20,000,000.
Section 7.11. LIMITATION ON CHANGES IN FISCAL YEAR OR ACCOUNTING
TREATMENT. Make any material change in accounting treatment and reporting
practices or tax reporting treatment, except as required or permitted by GAAP
and disclosed to the Lenders and the Administrative Agent.
Section 7.12. LIMITATION ON LINES OF BUSINESS. Enter into any business,
either directly or through any Subsidiary, which would not reasonably be
considered to be related to (or an extension of) the businesses in which the
Borrower and its Subsidiaries are engaged on the date hereof.
Section 7.13. NO NEW RESTRICTIONS ON SUBSIDIARY DIVIDENDS. Agree to
create or otherwise permit to become effective any consensual encumbrance or
restriction of any kind (except that restrictions may exist as to the transfer
of up to $10,000,000 in the aggregate at any one time) on the ability of any
Subsidiary to:
(a) pay, directly or indirectly, dividends or make any other
distributions in respect of its Capital Stock;
(b) make any other distribution or transfer of funds or assets to
the Borrower; or
(c) make loans or advances to or other Investments in, or pay any
Indebtedness or other obligation owing to, the Borrower.
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ARTICLE 8.
EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or the Borrower shall fail
to pay any interest on any Loan, or any other amount payable hereunder, within
five days after any such interest or other amount becomes due in accordance with
the terms thereof or hereof; or
(b) the Borrower shall default in the observance or performance
of the financial condition covenants contained in Section 7.1 hereof; or
(c) the Borrower shall default in the observance or performance
of any covenant or agreement contained herein (other than payment covenants
referred to in clause (a) above or the financial covenants referred to in clause
(b) above) or in any other Credit Document on its part to be performed or
observed and any such failure shall remain unremedied for thirty days after
written notice thereof shall have been given to the Borrower by the
Administrative Agent; or
(d) any representation or warranty made or deemed made by the
Borrower herein or in any other Credit Document or which is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Credit
Document shall prove to have been incorrect in any material respect on or as of
the date made or deemed made; or
(e) the Borrower or any of its Subsidiaries shall (i) default in
any payment of principal of or interest of any Indebtedness (other than the
Loans) or in the payment of any Guarantee Obligation, beyond the period of grace
(not to exceed 30 days), if any, provided in the instrument or agreement under
which such Indebtedness or Guarantee Obligation was created; or (ii) default in
the observance or performance of any other agreement or condition relating to
any such Indebtedness or Guarantee Obligation or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
or beneficiary or beneficiaries of such Guarantee Obligation (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries) to
cause, with the giving of notice if required, such Indebtedness to become due
prior to its stated maturity or such Guarantee Obligation to become payable;
provided, however, that no Default or Event of Default shall exist under this
paragraph unless the aggregate amount of Indebtedness and/or Guarantee
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Obligations in respect of which any default or other event or condition referred
to in this paragraph shall have occurred shall be equal to at least $5,000,000;
or
(f) (i) the Borrower or any of its Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or the
Borrower or any of its Subsidiaries shall make a general assignment for the
benefit of its creditors; or (ii) there shall be commenced against the Borrower
or any of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above which (A) results in the entry of an order for
relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbounded for a period of 60 days; or (iii) there shall be
commenced against the Borrower or any of its Subsidiaries any case, proceeding
or other action seeking issuance of a warrant of attachment, execution,
distraint or similar process against all or any substantial part of its assets
which results in the entry of an order for any such relief which shall not have
been vacated, discharged, or stayed or bonded pending appeal within 60 days from
the entry thereof; or (iv) the Borrower or any of its Subsidiaries shall take
any action in furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) the Borrower or any of its Subsidiaries shall generally not, or shall be
unable to, or shall admit in writing its inability to, pay its debts as they
become due; or
(g) (i) any Person shall engage in any "prohibited transaction"
(as defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302 of
ERISA), whether or not waived, shall exist with respect to any Plan or any Lien
in favor of the PBGC or a Plan shall arise on the assets of the Borrower or any
Commonly Controlled Entity, (iii) a Reportable Event shall occur with respect
to, or proceedings shall commence to have a trustee appointed, or a trustee
shall be appointed, to administer or to terminate, any Single Employer Plan,
which Reportable Event or commencement of proceedings or appointment of a
trustee is, in the reasonable opinion of the Required Lenders, likely to result
in the termination of such Plan for purposes of Title IV of ERISA, (iv) any
Single Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or
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condition, together with all other such events or conditions, if any, involve
an aggregate amount in excess of $5,000,000; or
(h) one or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving in the aggregate a net liability
(after reduction for the amount of any applicable insurance coverage) of
$5,000,000 or more, and all such judgments or decrees shall not have been
vacated, discharged, stayed or bonded pending appeal within 60 days from the
entry thereof; or
(i) any change of Control shall occur; or
(j) a change in circumstance or condition shall occur which, in
the reasonable judgment of the Required Lenders, may have a Material Adverse
Effect;
then, and in any such event, (A) if such event is a Bankruptcy Event with
respect to the Borrower, automatically each of the Aggregate Revolving Credit
Commitment shall immediately terminate and the Loans hereunder (with accrued
interest thereon) and all other amounts owing under this Agreement (including,
without limitation, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) shall immediately become due and payable, and (B)
if such event is any other Event of Default, either or both of the following
actions may be taken: (i) with the consent of the Required Lenders, the
Administrative Agent may, or upon the request of the Required Lenders, the
Administrative Agent shall, by notice to the Borrower declare the Aggregate
Revolving Credit Commitment to be terminated forthwith, whereupon such
Commitment shall immediately terminate; and (ii) with the consent of the
Required Lenders, the Administrative Agent may, or upon the request of the
Required Lenders, the Administrative Agent shall, by notice to the Borrower,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement (including, without limitation and subject to
the paragraph below, all amounts of L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented the
documents required thereunder) to be due and payable forthwith, whereupon the
same shall immediately become due and payable.
With respect to all Letters of Credit with respect to which presentment for
honor shall not have occurred at the time of an acceleration pursuant to the
preceding paragraph, the Borrower shall at such time deposit in one or more cash
collateral accounts opened by the Administrative Agent an amount equal to the
aggregate then undrawn and unexpired amount of such Letters of Credit. The
Borrower hereby grants to the Administrative Agent, for the benefit of the
Issuing Lender and the L/C Participants, a security interest in such cash
collateral to secure all obligations of the Borrower under this Agreement. Any
amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of Credit
issued for the account of the Borrower, and the unused portion thereof after all
such Letters of Credit shall have expired or been fully drawn upon, if any,
shall be applied to repay other obligations of the Borrower hereunder and under
the Notes. After all such Letters of Credit shall have expired or been fully
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drawn upon, all Reimbursement Obligations shall have been satisfied and all
other obligations of the Borrower hereunder and under the Notes shall have been
paid in full, the balance, if any, in such cash collateral account shall be
returned to the Borrower. The Borrower shall execute and deliver to the
Administrative Agent, for the account of the Issuing Lender and the L/C
Participants, such further documents and instruments as the Administrative Agent
may request to evidence the creation and perfection of the within security
interest in such cash collateral account.
Except as expressly provided above in this Article, presentment, demand, protest
and all other notices of any kind are hereby expressly waived.
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ARTICLE 9.
THE ADMINISTRATIVE AGENT
Section 9.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the administrative agent of such Lender
under this Agreement and the other Credit Documents. Each such Lender hereby
further irrevocably authorizes the Administrative Agent, in such capacity, to
take such action on its behalf under the provisions of this Agreement and the
other Credit Documents and to exercise such powers and perform such duties as
are expressly delegated to the Administrative Agent by the terms of this
Agreement and the other Credit Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, the Administrative Agent shall not have any duties
or responsibilities, except those expressly set forth with respect to it herein,
or any fiduciary relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Credit Document or otherwise exist against the
Administrative Agent.
Section 9.2. DELEGATION OF DUTIES. The Administrative Agent may execute
any of its duties under this Agreement and the other Credit Documents by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agent or attorneys
in-fact selected by it with reasonable care.
Section 9.3. EXCULPATORY PROVISIONS. None of the Administrative Agent,
nor any of its respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable to any of the Lenders for
any action lawfully taken or omitted to be taken by it or such Person under or
in connection with this Agreement or any other Credit Document (except for its
or such Person's own gross negligence or willful misconduct) or (ii) responsible
in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any officer thereof
contained in this Agreement or any other Credit Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure of the Borrower to perform its obligations hereunder or
thereunder. The Administrative Agent shall not be under any obligation to any
Lender to ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement or any other
Credit Document, or to inspect the properties, books or records of the Borrower.
Section 9.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent
shall be entitled to rely, and shall be fully protected in relying, upon any
Note, writing, resolution, notice, consent, certificate, affidavit, letter,
telecopy, telex or teletype message, statement, order or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to the Borrower),
independent accountants and other experts selected by
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the Administrative Agent. The Administrative Agent may deem and treat the payee
of any Note as the owner thereof for all purposes unless a written notice of
assignment, negotiation or transfer thereof shall have been filed with the
Administrative Agent. The Administrative Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other Credit
Document unless it shall first receive such advice or concurrence of the
Required Lenders as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action. The
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement and the other Credit Documents in
accordance with a request of the Required Lenders (or such larger number of
Lenders as may be explicitly required hereunder), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
Section 9.5. NOTICE OF DEFAULT. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default hereunder unless it has received notice from a Lender or the Borrower
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Administrative Agent receives such a notice from any Lender or the Borrower, the
Administrative Agent shall give notice thereof to the Lenders. The
Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders;
provided, that unless and until the Administrative Agent shall have received
such directions, it may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable in the best interests of the Lenders.
Section 9.6. NON-RELIANCE ON ADMINISTRATIVE AGENT, AND OTHER LENDERS.
Each Lender expressly acknowledges that none of the Administrative Agent, nor
any of their respective officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Administrative Agent hereinafter taken, including any
review of the affairs of the Borrower, shall be deemed to constitute any
representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that such Lender has,
independently and without reliance upon the Administrative Agent, or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrower and made its own decision to make its Loans and other extensions of
credit hereunder and enter into this Agreement. Each Lender also represents that
it will, independently and without reliance upon the Administrative Agent, or
any other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Credit Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Lender with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of
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the Borrower which may come into the possession of the Administrative Agent or
any of its respective officers, directors, employees, agents, attorneys-in-fact
or Affiliates.
Section 9.7. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent, in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably (according to the percentage which the Revolving Credit Commitment of
such Lender constitutes of the Aggregate Revolving Credit Commitment on the date
on which indemnification is sought), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever which may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent, in any
way relating to or arising out of, the Aggregate Revolving Credit Commitment,
this Agreement, any of the other Credit Documents or any documents contemplated
by or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided, that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the gross negligence or willful misconduct of the Administrative
Agent. The agreements in this Section shall survive the payment of the Loans and
all other amounts payable hereunder.
Section 9.8. AGENT IN ITS INDIVIDUAL CAPACITY. The Administrative Agent
and its respective Affiliates and Subsidiaries may make loans to, accept
deposits from and generally engage in any kind of business with the Borrower as
though the Administrative Agent was not the Administrative Agent hereunder and
under the other Credit Documents. With respect to the Loans and other extensions
of credit made by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Credit Documents as any Lender and may
exercise the same as though it was not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its respective
individual capacity.
Section 9.9. SUCCESSOR AGENT. The Administrative Agent may resign as
such upon 30 days' notice to the Lenders. If the Administrative Agent shall
resign as "Administrative Agent" under this Agreement and the other Credit
Documents, then the Required Lenders shall appoint from among the Lenders a
successor Administrative Agent for the Lenders, which successor Administrative
Agent (provided, that, to the extent that no Default or Event of Default is
continuing at the time of such appointment, such Administrative Agent shall have
been approved by the Borrower), shall succeed to the rights, powers and duties
of the Administrative Agent hereunder. Effective upon such appointment and
approval, the term "Administrative Agent" shall mean such successor
Administrative Agent, and the rights, powers and duties of the former
Administrative Agent as Administrative Agent shall be terminated, without any
other or further act or deed on the part of such former Administrative Agent or
any of the parties to this Agreement or any holders of the Loans. After any
resignation of the retiring Administrative Agent as Administrative Agent the
provisions of this Section shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Administrative Agent under this Agreement
and the other Credit Documents.
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Section 9.10. CO-ARRANGER. Bank of America National Trust and Savings
Association as Co-Arranger has no right, power, obligation, liability,
responsibility, or duty under this Agreement other than those applicable to all
Lenders as such. Without limiting the foregoing, Bank of America National Trust
and Savings Association as Co-Arranger does not have, and shall not be deemed to
have, any fiduciary relationship with any Lender. Each Lender acknowledges that
it has not relied, and will not rely, on Bank of America National Trust and
Savings Association as Co-Arranger in deciding to enter into this Agreement or
in taking or not taking action hereunder.
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ARTICLE 10.
MISCELLANEOUS
Section 10.1. AMENDMENTS AND WAIVERS. Neither this Agreement nor any
other Credit Document, nor any terms hereof or thereof may be amended,
supplemented or modified except in accordance with the provisions of this
Section. The Required Lenders may, or, with the written consent of the Required
Lenders, the Administrative Agent may, from time to time, (a) enter into with
the Borrower directly affected thereby written amendments, supplements or
modifications hereto and to the other Credit Documents for the purpose of adding
any provisions to this Agreement or the other Credit Documents or changing in
any manner the rights of the Lenders or of the Borrower hereunder or thereunder
or (b) waive, on such terms and conditions as the Required Lenders or the
Administrative Agent may specify in such instrument, any of the requirements of
this Agreement or the other Credit Documents or any Default or Event of Default
and its consequences; provided, however, that no such waiver and no such
amendment, supplement or modification shall:
(i) without the consent of each Lender directly affected
thereby, (A) reduce the amount or extend the scheduled date of maturity
of any Loan or of any installment thereof, (B) reduce the stated rate of
any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or (C) increase the amount or extend the expiration
date of any Lender's Revolving Credit Commitment;
(ii) without the written consent of all the Lenders, (A) amend,
modify or waive any provision of this Section, (B) reduce the percentage
specified in the definition of Required Lenders, or (C) consent to the
assignment or transfer by the Borrower of any of its rights and
obligations under this Agreement and the other Credit Documents;
(iii) without the prior written consent of the Issuing Lender
with respect, thereto, amend, supplement or otherwise modify any
provisions of or directly application to any Letter of Credit; or
(iv) amend, modify or waive any provision of Article 9 without
the written consent of the then Administrative Agent.
Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Borrower, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Borrower, the Lenders and the Administrative Agent shall
be restored to their former positions and rights hereunder and under the other
Credit Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing; no such waiver shall extend to any subsequent or
other Default or Event of Default or impair any right consequent thereon.
Section 10.2. NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise
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expressly provided herein, shall be deemed to have been duly given or made (a)
in the case of delivery by hand, when delivered, (b) in the case of delivery by
mail, three days after being deposited in the mails, postage prepaid, or (c) in
the case of delivery by facsimile transmission, when sent and receipt has been
confirmed, addressed as follows in the case of the Borrower and the
Administrative Agent, and to Lenders as the addresses set forth below the
signature blocks at the end of this Agreement, or to such other address as may
be hereafter notified by the respective parties hereto:
The Borrower: Advanced Fibre Communications, Inc.
One Willow Brook Court
Petaluma, CA 94954
Attention: Peter Donahower, Treasurer
Fax: (707) 792-4275
The Administrative Agent: Banque Nationale de Paris
180 Montgomery Street
San Francisco, CA 94108
Attention: William J. LaHerran,
Vice President
Fax: (415) 296-8954
provided, that any notice, request or demand to or upon the Administrative Agent
or the Lenders pursuant to Sections 2.2, 2.6, 2.7, 2.8, or 2.13(b) shall not be
effective until received.
Section 10.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and
no delay in exercising, on the part of the Administrative Agent or any Lender,
any right, remedy, power or privilege hereunder or under the other Credit
Documents shall operate as a waiver thereof; nor shall any single or partial
exercise of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges herein provided are
cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
Section 10.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made hereunder, in the other Credit Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the execution and delivery of this Agreement
and the making of the Loans hereunder.
Section 10.5. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to
pay or reimburse the Administrative Agent for all its respective out-of-pocket
costs and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without limitation, the
reasonable fees and disbursements of the counsel to the Administrative Agent in
an amount not exceeding $25,000, (b) to pay or reimburse each Lender and the
Administrative Agent for all its costs and expenses
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incurred in connection with the enforcement or preservation of any rights under
this Agreement, the other Credit Documents and any such other documents,
including in the case of enforcement or workout, without limitation, the fees
and disbursements of the several counsel (including allocated costs of in-house
legal services) to the Lenders, and the Administrative Agent, (c) to pay,
indemnify, and hold each Lender, the Administrative Agent, and the Co-Arranger
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp, excise and other
taxes, if any, which may be payable or determined to be payable in connection
with the execution and delivery of, or consummation or administration of any of
the transactions contemplated by, or any amendment, supplement or modification
of, or any waiver or consent under or in respect of, this Agreement, the other
Credit Documents and any such other documents and (d) to pay, indemnify, and
hold each Lender, the Administrative Agent, and the Co-Arranger harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Credit Documents and
the other transactions contemplated hereby, or the use of the proceeds of the
Loans and other extensions of credit hereunder and any such other documents,
including, without limitation, any of the foregoing relating to the violation
of, noncompliance with or liability under, any Environmental, Health or Safety
Requirements of Law applicable to the operations of the Borrower, any of its
Subsidiaries or any Property (all the foregoing in this clause (d),
collectively, the "indemnified liabilities"), provided, that the Borrower shall
not be obligated hereunder to the Administrative Agent, the Co-Arranger or any
Lender with respect to indemnified liabilities arising from the gross negligence
or willful misconduct of the Administrative Agent, the Co-Arranger or any such
Lender (as the case may be). The agreements in this Section shall survive
repayment of the Loans and all other amounts payable hereunder.
Section 10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS.
(a) This Agreement shall be binding upon and inure to the benefit
of the Borrower, the Lenders, the Administrative Agent and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of each Lender.
(b) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time sell to one
or more banks or other entities ("Participants") participating interests in any
Loan owing to such Lender, the Revolving Credit Commitment of such Lender or any
other interest of such Lender hereunder and under the other Credit Documents. In
the event of any such sale by a Lender of a participating interest to a
Participant, such Lender's obligations under this Agreement to the other parties
to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of
any such Loan or other extension of credit for all purposes under this Agreement
and the other Credit Documents, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Credit
Documents. No Lender shall be entitled to create in favor of any Participant, in
the participation agreement pursuant to which such
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<PAGE> 55
Participant's participating interest shall be created or otherwise, any right to
vote on, consent to or approve any matter relating to this Agreement or any
other Credit Document except for those specified in clause (ii) of the proviso
to Section 10.1 or, to the extent that such Lender would have the right to vote
on any matter specified therein, clause (i) of such proviso. The Borrower agrees
that if amounts outstanding under this Agreement are due or unpaid, or shall
have been declared or shall have become due and payable upon the occurrence of
an Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of set off in respect of its
participating interest in amounts owing under this Agreement to the same extent
as if the amount of its participating interest were owing directly to it as a
Lender under this Agreement, provided, that, in purchasing such participating
interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 10.7(a) as fully as if it
were a Lender hereunder. The Borrower also agrees that each Participant shall be
entitled to the benefits of Sections 2.15, 2.16 and 2.17 with respect to its
participation in the Revolving Credit Commitments, Loans and other extensions of
credit outstanding from time to time as if it was a Lender; provided, that, in
the case of Section 2.16, such Participant shall have complied with the
requirements of said Section and provided, further, that no Participant shall be
entitled to receive any greater amount pursuant to any such Section than the
transferor Lender would have been entitled to receive in respect of the amount
of the participation transferred by such transferor Lender to such Participant
had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable law, at any time and from
time to time assign to (i) any Lender, (ii) with the consent (which shall
not be unreasonably withheld) of the Administrative Agent and the Borrower
(except that during the continuation of an Event of Default the consent of the
Borrower shall not be required), to any additional bank or financial institution
(any assignee described in clause (i) or (ii), an "Assignee") all or any part of
its rights and obligations under this Agreement and the other Credit Documents
pursuant to an Assignment and Acceptance, substantially in the form of Exhibit
H, executed by such Assignee, such assigning Lender (and, in the case of an
Assignee that is not then a Lender, by the Administrative Agent and the
Borrower) and delivered to the Administrative Agent for its acceptance and
recording in the Register, provided, that, in the case of any such assignment to
an additional bank or financial institution, the sum of the aggregate principal
amount of the Loans, the aggregate amount of the L/C Obligations and the
aggregate amount of the Available Revolving Credit Commitment being assigned is
not less than $5,000,000 (or such lesser amount as may be agreed to by the
Borrower and the Administrative Agent). Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Revolving Credit Commitment
as set forth therein, and (y) the assigning Lender thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's rights
and obligations under this Agreement, such assigning Lender shall cease to be a
party hereto). Notwithstanding any provision of this paragraph (c) and paragraph
(e) of this Section, the consent of the Borrower shall not be required, and,
unless requested by the Assignee and/or the assigning Lender, new Notes shall
not be required to be executed and delivered by the Borrower, for any assignment
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which occurs at any time when any of the events described in paragraph (e) of
Article 8 shall have occurred and be continuing.
(d) The Administrative Agent, on behalf of the Borrower, shall
maintain at the address of the Administrative Agent referred to in Section 10.2
a copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
the Revolving Credit Commitments of, and principal amounts of the Loans owing
to, each Lender from time to time and the L/C Obligations (including Letters of
Credit and Reimbursement Obligations) outstanding from time to time. The entries
in the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent, and the Lenders may (and, in the case of any
Loan or other obligation hereunder not evidenced by a Note, shall) treat each
Person whose name is recorded in the Register as the owner of a Loan or other
obligation hereunder as the owner thereof for all purposes of this Agreement and
the other Credit Documents, notwithstanding any notice to the contrary. Any
assignment of any Loan or other obligation hereunder not evidenced by a Note
shall be effective only upon appropriate entries with respect thereto being made
in the Register.
(e) Upon its receipt of an Assignment and Acceptance executed by
an assigning Lender and an Assignee (and, in the case of an Assignee that is not
then a Lender or an affiliate thereof, by the Borrower and the Administrative
Agent), together with payment to the Administrative Agent of a registration and
processing fee of $2,500, the Administrative Agent shall (i) promptly accept
such Assignment and Acceptance and (ii) on the effective date determined
pursuant thereto record the information contained therein in the Register and
give notice of such acceptance and recordation to the Lenders and the Borrower.
(f) Subject to Section 10.15, the Borrower authorizes each Lender
to disclose to any Participant or Assignee (each, a "Transferee") and any
prospective Transferee any and all financial information in such Lender's
possession concerning the Borrower and its Affiliates which has been delivered
to such Lender by or on behalf of the Borrower pursuant to this Agreement or
which has been delivered to such Lender by or on behalf of the Borrower in
connection with such Lender's credit evaluation of the Borrower and its
Affiliates prior to becoming a party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this Section concerning assignments of Loans
and Notes relate only to absolute assignments and that such provisions do not
prohibit assignments creating security interests, including, without limitation,
any pledge or assignment by a Lender of any Loan or Note to any Federal Reserve
Bank in accordance with applicable law.
Section 10.7. ADJUSTMENTS; SET-OFF.
(a) If any Lender (a "benefitted Lender") shall at any time
receive any payment of all or part of any of its Loans or Reimbursement
Obligations owing to it under the Revolving
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Credit Commitment, or interest thereon, pursuant to a guarantee or otherwise, or
receive any collateral in respect thereof (whether voluntarily or involuntarily,
by set-off or otherwise), in a greater proportion than any such payment to and
collateral received by any other Lender, if any, in respect of such other
Lender's Loans or Reimbursement Obligations owing to it under the Revolving
Credit Commitment or interest thereon, such benefitted Lender shall purchase for
cash from the other Lender such portion of each such other Lender's similar
Loans or Reimbursement Obligations or shall provide such other Lender with the
benefits of any such collateral, or the proceeds thereof, as shall be necessary
to cause such benefitted Lender to share the excess payment or benefits of such
collateral or proceeds ratably with each of the Lenders which hold the Revolving
Credit Commitment; provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that each
Lender so purchasing a portion of another Lender's Loans or Reimbursement
Obligations may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such purchasing
Lender were the direct holder of such portion.
(b) In addition to any rights and remedies of the Lenders
provided by law, each Lender shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by such Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. Each Lender agrees
promptly to notify the Borrower and the Administrative Agent after any such
set-off and application made by such Lender, provided, that the failure to give
such notice shall not affect the validity of such set-off and application.
Section 10.8. COUNTERPARTS. This Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts
(including by facsimile transmission), and all of said counterparts taken
together shall be deemed to constitute one and the same instrument. A set of the
copies of this Agreement signed by all the parties shall be lodged with the
Borrower and the Administrative Agent.
Section 10.9. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 10.10. INTEGRATION. This Agreement and the other Credit
Documents represent the agreement of the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the
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Administrative Agent or any Lender relative to subject matter hereof not
expressly set forth or referred to herein or in the other Credit Documents.
Section 10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
Section 10.12. SUBMISSION TO JURISDICTION WAIVERS. The Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and for its property to the non-exclusive
jurisdiction of any California State or federal court sitting in San Francisco,
California, and any competent court of the jurisdiction of organization of the
Borrower (a "local court"), and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement or the Notes;
(b) agrees that all claims in respect of such action or
proceeding may be heard and determined in such California State or local court
or, to the extent permitted by law, in such federal court and waives, to the
fullest extent it may effectively do so, any defense of an inconvenient forum to
the maintenance of such action or proceeding in any such court and any right of
jurisdiction on account of the place of residence or domicile of the Borrower;
(c) agrees that nothing herein shall affect the right to effect
service of process in any manner permitted by law (including, without
limitation, by the mailing of copies of such process to the Borrower by
certified or registered air mail at its address referred to in Section 10.2) or
shall limit the right to sue in any other jurisdiction;
(d) agrees that, to the fullest extent permitted by applicable
law, a final judgment in any such action or proceeding shall be conclusive and
may be enforced in other jurisdictions by suit on the judgment or in any other
manner provided by law; and
(e) waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding referred
to in this Section any special, exemplary, punitive or consequential damages.
Section 10.13. ACKNOWLEDGMENTS. The Borrower hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Credit Documents;
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(b) none of the Administrative Agent, Co-Arranger, or any Lender
has any fiduciary relationship with or duty to the Borrower arising out of or in
connection with this Agreement or any of the other Credit Documents, and the
relationship between Administrative Agent and the Lenders, on one hand, and the
Borrower, on the other hand, in connection herewith or therewith is solely that
of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among the Borrower and the Lenders.
Section 10.14. WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER CREDIT
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
Section 10.15. CONFIDENTIALITY. Subject to Section 10.6(f), the
Administrative Agent and the Lenders shall hold all non-public information
obtained pursuant to the requirements hereof and identified as such by the
Borrower in accordance with such Person's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices and in any event may make disclosure reasonably required by a
bona fide offeree, assignee or participant in connection with the contemplated
transfer or participation, or as required or requested by any Governmental
Authority or representative thereof, or pursuant to legal process or any
applicable Requirement of Law, or to its accountants, lawyers and other
advisors, and shall require any such offeree, assignee or participant to agree
to comply with this Section and cause its lawyers (except in the case of
enforcement proceedings or litigation), accountants and advisors to comply with
this Section. In no event shall the Administrative Agent or any Lender be
obligated or required to return any materials furnished by the Borrower;
provided, that each offeree shall be required to agree that if it does not
become an assignee or participant it shall return all materials furnished to it
by the Borrower in connection herewith.
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IN WITNESS WHEREOF, the parties hereto have caused is Agreement to be duly
executed and delivered by their proper and duly authorized officers as of the
day and year first above written.
LENDERS:
ADVANCED FIBRE COMMUNICATIONS, BANQUE NATIONALE DE PARIS,
a Delaware corporation, as Borrower a French banking association,
as Lender
/s/ Peter A. Darbee /s/ Jennifer Cho
- ----------------------------------- -----------------------------------
By: Peter A. Darbee /s/ William J. La Herran
Title: Vice President, -----------------------------------
Chief Financial Officer, By: Jennifer Cho
Treasurer and Secretary By: William J. La Herran
Title: Vice President
Title: Vice President
BANQUE NATIONALE DE PARIS, Revolving Credit Commitment:
$25,000,000
a French banking association, as Revolving Credit Percentage: 50%
Arranger and Administrative Agent Notice Address:
180 Montgomery Street
/s/ Jennifer Cho San Francisco, CA 94104
- -----------------------------------
/s/ William J. La Herran BANK OF AMERICA NATIONAL TRUST AND
- ----------------------------------- SAVINGS ASSOCIATION, a national
By: Jennifer Cho banking association, as Lender
By: William J. La Herran
Title: Vice President
Title: Vice President /s/ R. Vernon Howard, Jr.
-----------------------------------
By: R. Vernon Howard, Jr.
BANK OF AMERICA NATIONAL TRUST AND Title: Managing Director
SAVINGS ASSOCIATION, a national
banking association, as Co-Arranger Revolving Credit Commitment:
$25,000,000
Revolving Credit Percentage: 50%
/s/ R. Vernon Howard, Jr. Notice Address:
- -----------------------------------
By: R. Vernon Howard, Jr.
Title: Managing Director
<PAGE> 61
EXHIBIT A
DEFINITIONS
"Administrative Agent": as defined in the preamble hereto, together
with any successor Administrative Agent selected pursuant to this Agreement.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 5% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
"Aggregate Revolving Credit Commitment": $50,000,000, as such amount
may be reduced from time to time pursuant to this Agreement.
"Agreement": this Revolving Credit Agreement, as amended, supplemented
or otherwise modified from time to time.
"Applicable Margin": (a) 0.00% per annum for all Base Rate Loans and
(b) 0.75% per annum for all LIBO Loans.
"Application": an application, in such form as the Issuing Lender may
specify from time to time, requesting the Issuing Lender to open a Letter of
Credit.
"Assignee": as defined in Section 10.6(c).
"Available Revolving Credit Commitment": as to any Lender, at any
time, an amount equal to the excess, if any, of (a) such Lender's Revolving
Credit Commitment over (b) the sum of (i) the product of such Lender's Revolving
Credit Commitment Percentage and the aggregate principal amount of all Loans
outstanding at such time and (ii) the product of such Lender's Revolving Credit
Commitment Percentage and all L/C Obligations outstanding at such time.
"Bankruptcy Event": any event described in paragraph (f) of Article 8.
"Base Rate": for any day, a rate per annum equal to the greater of (i)
the Prime Rate in effect on such day and (ii) the Federal Funds Effective Rate
in effect on such day plus -1/2 of 1%. Any change in the Base Rate due to a
change in the Prime Rate or the Federal Funds Effective Rate shall be effective
as of the opening of business on the effective day of such change in the Prime
Rate or the Federal Funds Effective Rate, respectively.
"Base Rate Loans": Loans the rate of interest applicable to which is
based upon the Base Rate.
<PAGE> 62
"Borrower": as defined in the preamble hereto.
"Borrowing Date": any Business Day specified in a Notice of Borrowing
as a date on which the Borrower requests the Lenders to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
which commercial banks are authorized or required by law to close (a) in New
York, New York or San Francisco, California and (b) in the case of LIBO Loans,
in London, England.
"Capital Stock": any and all shares, interests, participation or other
equivalents (however designated) of capital stock of a corporation, any and all
equivalent ownership interests in a Person (other than a corporation) and any
and all warrants or options to purchase any of the foregoing.
"CERCLA": the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, 42 U.S.C. Sections 9601 et seq., as amended, any
successor statutes, and any regulations or legally enforceable guidelines
promulgated thereunder.
"CERCLIS": as defined in Section 5.15(f).
"Change of Control": the occurrence of the following: any "person" (as
such term is used in Section 13(d) and 14(d) of the Exchange Act) beneficially
owns, directly or indirectly, more than 25% of the total voting power of the
voting stock of the Borrower.
"Closing Date": the date on which the conditions precedent set forth
in Section 4.1 shall be satisfied.
"Co-Arranger": as defined in the preamble hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment Period": the period from and including the date hereof to
but not including the Termination Date or such earlier date on which the
Aggregate Revolving Credit Commitment shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not incorporated,
which is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes the Borrower and which is
treated as a single employer under Section 414 of the Code.
"Contaminant": any pollutant, hazardous substance, radioactive
substance, toxic substance, hazardous waste, radioactive waste, special waste,
petroleum or petroleum-derived substance or waste, asbestos in any form or
condition, polychlorinated biphenyls (PCBs), or any
<PAGE> 63
hazardous or toxic constituent thereof and includes, but is not limited to,
these terms as defined under Environmental, Health or Safety Requirements of
Law.
"Credit Documents": this Agreement, the Note and any other agreement,
instrument or certificate delivered by the Borrower to the Lenders or to the
Administrative Agent in connection with this Agreement or any Loan.
"Current Liabilities": for any period, the current liabilities on a
consolidated basis of the Borrower and its Subsidiaries, calculated in
accordance with GAAP and in a manner consistently applied with the presentation
of "current liabilities" the Borrower's consolidated balance sheet for the
fiscal year ending December 31, 1997.
"Default": any of the events specified in Article 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
America.
"Environmental, Health or Safety Requirements of Law": all
Requirements of Law derived from or relating to foreign, European Union, United
States federal, state and local laws or regulations relating to or addressing
the environment, health or safety, including but not limited to any law,
regulation, or order relating to the use, handling, or disposal of any
Contaminant, any law, regulation, or order relating to Remedial Action and any
law, regulation, or order relating to workplace or worker safety and health, and
such Requirements of Law as are promulgated by the specifically authorized
Governmental Authority responsible for administering such Requirements of Law,
each as from time to time hereafter in effect.
"Environmental Lien": a Lien in favor of any Governmental Authority
for any (i) liabilities under any Environmental, Health or Safety Requirements
of Law, or (ii) damages arising from, or costs incurred by such Governmental
Authority in response to, a Release or threatened Release of a Contaminant into
the environment.
"Environmental Property Transfer Acts": any applicable Requirement of
Law that, for environmental reasons, conditions, restricts, prohibits or
requires any notification, Remedial Action or disclosure triggered by the
closure of any Property, the transfer, sale or lease of any Property or deed or
title for any Property or any change in the direct or indirect ownership or
control of any Property, including, but not limited to, any so-called
"Industrial Site Recovery Acts" or "Responsible Transfer Acts".
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default": any of the events specified in Article 8,
provided, that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
<PAGE> 64
"Exchange Act": the Securities Exchange Act of 1934 (as amended from
time to time) and any successor statute.
"Federal Funds Effective Rate": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day which is a Business Day, the average of the
quotations for the day of such transactions received by the Administrative Agent
from three federal funds brokers of recognized standing selected by it.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"Fixed Charges": for any period of four consecutive fiscal quarters,
the sum, without duplication, of the amounts for such period of (i) Interest
Expense of the Borrower and its Subsidiaries, (ii) rental expense incurred by
the Borrower and its Subsidiaries, (iii) payments of principal on Indebtedness
for borrowed money required to be paid during such period by such Person,
including, without limitation, the principal component of Financing Lease
obligations required to be so paid, (iv) with respect to this Agreement, for
each fiscal quarter of the Borrower, beginning with the fiscal quarter ending
approximately June 30, 1998, an amount equal to 20 percent of the Aggregate
Revolving Credit Commitment (used and unused) as of the last day of such
quarter, and (v) cash dividends paid in respect of Capital Stock by such Person.
"Fixed Charge Coverage Ratio": for any period of four consecutive
fiscal quarters, the ratio of (i) Net Income of the Borrower and its
Subsidiaries for such period, plus tax expense, plus Interest Expense for such
period, plus rental expense for operating leases incurred in such period, plus
charges for the acquisition of in-process technology, to (ii) Fixed Charges of
the Borrower and its Subsidiaries for such period.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time.
"Governmental Authority": any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counter indemnity
or similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other similar obligations (the "primary
obligations") of any other third Person (the "primary obligor") in any manner,
whether directly or indirectly, including, without limitation, any obligation of
the guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or
<PAGE> 65
indirect security therefor, (ii) to advance or supply funds (1) for the purchase
or payment of any such primary obligation or (2) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the owner of any such
primary obligation against loss in respect thereof; provided, however, that the
term Guarantee Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Guarantee Obligation of any guaranteeing person shall be deemed to be the lower
of (a) an amount equal to the stated or determinable amount of the primary
obligation in respect of which such Guarantee Obligation is made and (b) the
maximum amount for which such guaranteeing person may be liable pursuant to the
terms of the instrument embodying such Guarantee Obligation, unless such primary
obligation and the maximum amount for which such guaranteeing person may be
liable are not stated or determinable, in which case the amount of such
Guarantee Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.
"Indebtedness": of any Person at any date (and without duplication),
(a) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services (other than current trade liabilities
incurred in the ordinary course of business and payable in accordance with
customary practices), (b) any other indebtedness of such Person which is
evidenced by a note, bond, debenture or similar instrument, (c) all obligations
of such Person under Financing Leases and synthetic leases, (d) all obligations
of such Person in respect of acceptances issued or created for the account of
such Person and (e) all liabilities secured by any Lien on any property owned by
such Person even though such Person has not assumed or otherwise become liable
for the payment thereof; provided, however, that for purposes of calculating
compliance with the financial covenants contained in Section 7.1 only, the term
"Indebtedness" shall include only such obligations which would be reflected in a
consolidated balance sheet of the Borrower and its Subsidiaries prepared in
accordance with GAAP.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Intangible Assets": assets that are considered intangible assets
under GAAP, consistently applied, including goodwill, organization expense,
patents, trademarks, trade names, copyrights, excess of cost over book value.
"Intellectual Property": as defined in Section 5.9.
"Interest Coverage Ratio": for any period of four consecutive fiscal
quarters, the ratio of (a) EBITDA of the Borrower and its Subsidiaries for such
period to (b) total Interest Expense of the Borrower and its Subsidiaries for
such period.
<PAGE> 66
"Interest Expense": for any period on a combined basis for any Person,
all of the following as determined in conformity with GAAP: (i) total interest
expense, whether paid or accrued (without duplication) (including the interest
component of Financing Lease obligations for such period), including, without
limitation, all commissions, discounts and other fees and charges owed with
respect to letters of credit and net costs under Interest Rate Agreements, but
excluding, however, (w) amortization of discount, (x) capitalized debt issuance
costs, (y) interest paid in property other than cash and (z) any other interest
expense not payable in cash, minus (ii) any net payments received during such
period under Interest Rate Agreements.
"Interest Payment Date": (a) as to any Base Rate Loan, the first
Business Day of each January, April, July and October for the fiscal quarter
ending on (and including) the last day of the immediately preceding December,
March, June or September, respectively, and the Termination Date, (b) as to any
LIBO Loan having an Interest Period of three months or less, the last day of
such Interest Period and (c) as to any LIBO Loan having an Interest Period
longer than three months, each day which is three months, or a whole multiple
thereof, after the first day of such Interest Period (or, if such day is not a
Business Day, the next succeeding Business Day) and the last day of such
Interest Period.
"Interest Period": with respect to any LIBO Loan:
(a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such LIBO Loan
and ending one, two, three or six months thereafter, as selected by
the Borrower in its Notice of Borrowing given with respect thereto;
and
(b) thereafter, each period commencing on the last day of the
next preceding Interest Period applicable to such LIBO Loan and ending
one, two, three or six months thereafter, as selected by the Borrower
by irrevocable notice to the Administrative Agent delivered by 11:00
a.m. San Francisco time not less than three Business Days prior to the
last day of the then current Interest Period with respect thereto;
provided, that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period would otherwise end on a day that is
not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be
to carry such Interest Period into another calendar month in which
event such Interest Period shall end on the immediately preceding
Business Day;
(2) any Interest Period that would otherwise extend beyond the
Termination Date shall end on the Termination Date; and
<PAGE> 67
(3) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month.
"Interest Rate Agreement": any interest rate swap, option, cap, collar
or insurance or any other agreement or arrangement with any Person which is
designed to provide protection against fluctuations in interest rates, and any
renewals thereof or substitutions therefor.
"Investment": any (a) advance, loan, extension of credit or capital
contribution to, or (b) purchase of any stock, bonds, notes, debentures or other
securities of or any assets constituting a business unit of, or similar
investment in, any Person.
"Issuing Lender": with respect to any Letter of Credit, Banque
Nationale de Paris, in its capacity as issuer thereof.
"L/C Commitment": $10,000,000.
"L/C Fee Payment Date": the last Business Day of each March, June,
September, and December.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
collective reference to all the Lenders other than the Issuing Lender with
respect thereto.
"Lenders": the collective reference to the Issuing Bank and each bank
or other financial institution holding a Revolving Credit Commitment hereunder
(or, after the last day of the Commitment Period, having any outstanding Loans
or any interest in any L/C Obligation hereunder); collectively, the "Lenders".
"Letters of Credit": as defined in Section 3.1(a).
"Liabilities and Costs": all liabilities, obligations,
responsibilities, losses and damages with respect to or arising out of any of
the following: personal injury, death, punitive damages, economic damages,
consequential damages, treble damages, intentional, willful or wanton injury,
damage or threat to the environment or public health or welfare, costs and
expenses (including, without limitation, attorney, expert and consulting fees
and costs of investigation, feasibility or Remedial Action studies), fines,
penalties and monetary sanctions, voluntary disclosures made to, or settlements
with, the United States Government, interest, direct or indirect, known or
unknown, absolute or contingent, past, present or future, including interest, if
any, thereon.
<PAGE> 68
"LIBO Base Rate": the rate per annum determined by the Administrative
Agent at approximately 11:00 a.m. (London time) on the date which is two
Business Days prior to the beginning of the relevant Interest Period (as
specified in the applicable Notice of Borrowing) by reference to the "British
Bankers' Association Interest Settlement Rates" for deposits in Dollars for a
period equal to such Interest Period (rounded, if necessary, upward to the
nearest whole multiple of 1/16th of 1%); provided, that to the extent that an
interest rate is not ascertainable pursuant to the foregoing provisions of this
definition, the "LIBO Base Rate" shall be the interest rate per annum determined
by the Administrative Agent to be the average (rounded upward to the nearest
whole multiple of one-sixteenth of one percent per annum, if such average is not
such a multiple) of the rates per annum at which deposits in Dollars are offered
to major banks in the London interbank market in London, England by the
Administrative Agent at approximately 11:00 a.m. (London time) on the date which
is two Business Days prior to the beginning of such Interest Period.
"LIBO Loans": Loans the rate of interest applicable to which is based
upon the LIBO Rate.
"LIBO Rate": with respect to each day during each Interest Period
pertaining to a LIBO Loan, a rate per annum determined for such day in
accordance with the following formula (rounded upward to the nearest 1/100th of
1%, if the LIBO Reserve Requirements are greater than zero):
LIBO Base Rate
--------------
1.00 - LIBO Reserve Requirements
"LIBO Reserve Requirements": for any day, that percentage which is in
effect on such day, as prescribed by the Federal Reserve Board for determining
the maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank of the
Federal Reserve System in New York, New York with deposits exceeding five
billion Dollars in respect of eurocurrency liabilities (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on LIBO Loans is determined or any category of extensions of
credit or other assets which includes loans by a non-United States of America
office of any bank to United States of America residents).
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loans": as defined in Section 2.1. Loans may be Base Rate Loans or
LIBO Loans.
"Material Adverse Effect": a material adverse effect on (i) the
business, financial condition, operations, financial performance or properties
of the Borrower and its Subsidiaries,
<PAGE> 69
taken as a whole, (ii) the ability of the Borrower to perform its obligations
under the Credit Documents or (iii) the ability of the Lenders or the
Administrative Agent to enforce the Credit Documents.
"Multiemployer Plan": a Plan which is a multiemployer plan as defined
in Section 4001(a)(3) of ERISA.
"Net Income": for any period for any Person, the net income (or loss)
after taxes for such period taken as a single accounting period, determined in
conformity with GAAP.
"Non-Excluded Taxes": as defined in Section 2.16(a).
"Notes": the promissory notes referred to in Section 2.4(e), the form
of which is attached to this Agreement as Exhibit B.
"Notice of Borrowing": with respect to (a) any borrowing of Loans, a
Notice of Borrowing (Drawings), substantially in the form of Exhibit D hereto,
(b) any conversion of Loans, a Notice of Borrowing (Conversions), substantially
in the form of Exhibit E hereto, and (c) any continuation of LIBO Loans, a
Notice of Borrowing (Continuations), substantially in the form of Exhibit F
hereto.
"NPL": as defined in Section 5.15(f).
"Participant": as defined in Section 10.6(b).
"Payment Account": the demand account in the name of the Borrower
maintained at the Bank of the West, San Francisco Branch, Account Number
064000904.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA.
"Permitted Subordinated Indebtedness": any future Indebtedness
incurred by the Borrower and/or any Subsidiary which is fully subordinated to
all obligations of the Borrower to the Lenders and the Administration Agent
hereunder in a manner and subject to such documentation as shall be satisfactory
to the Administrative Agent in its reasonable judgment.
"Person": an individual, partnership, corporation, business trust,
joint stock company, trust, unincorporated association, joint venture,
Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
<PAGE> 70
"Prime Rate": the rate of interest per annum publicly announced from
time to time by the Administrative Agent as its prime rate in effect at its
office in New York City.
"Property": any real or personal property, including plant, building,
facility, structure, underground storage tank or unit, equipment, inventory,
general intangible, receivable, or other asset owned, leased or operated by the
Borrower or any of its Subsidiaries, as applicable (including any surface water
thereon or adjacent thereto, and soil and groundwater thereunder).
"Quick Ratio": for any fiscal quarter, the ratio of (a) the sum of (i)
unencumbered cash, (ii) unencumbered Cash Equivalents and (iii) unencumbered
receivables of the Borrower or its Subsidiaries for such period for products and
services provided in the normal course of the Borrower's business, less any
reserves maintained by the Borrower or its Subsidiaries in connection with such
receivables, to (b) Current Liabilities of the Borrower and its Subsidiaries for
such period.
"Reimbursement Obligation": the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under the
Letters of Credit issued by it.
"Register": as defined in Section 10.6(d).
"Regulation U": Regulation U of the Board of Governors of the Federal
Reserve System as in effect from time to time.
"Release": release, spill, emission, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the indoor
or outdoor environment or into or out of any Property, including the movement of
Contaminants through or in the air, soil, surface water, groundwater or
Property.
"Remedial Action": actions required to (i) clean up, remove, treat or
in any other way address Contaminants in the indoor or outdoor environment; (ii)
prevent the Release or threat of Release or minimize the further Release of
Contaminants; or (iii) investigate and determine if a remedial response is
needed and to design such a response and post-remedial investigation,
monitoring, operation and maintenance and care.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(b) of
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .13, .14, .16, .18, .19 or .20 of PBGC Reg. Section
2615.
"Required Lenders": at any time, Lenders having Revolving Credit
Commitment Percentages which aggregate more than 66-2/3% of the sum of the
Aggregate Revolving Credit Commitment then in effect (or, if such commitment has
expired or terminated, of the sum of the aggregate outstanding principal of all
Loans and the L/C Obligations.
<PAGE> 71
"Requirement of Law": as to any Person , any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.
"Responsible Officer": with respect to the Borrower, the chief
executive officer, chief operating officer, senior vice president for finance
and administration or chief financial officer of the Borrower or, with respect
to financial matters, the senior vice president for finance and administration,
chief financial officer, treasurer or controller of the Borrower.
"Restricted Payments": as defined in Section 7.7.
"Revolving Credit Commitment": as to any Lender, its obligation to
make Loans to and/or issue or participate in Letters of Credit issued on behalf
of the Borrower hereunder in an aggregate principal and/or face amount at any
one time outstanding not to exceed the amount set forth opposite such Lender's
name below such Lender's signature block on the Agreement.
"Revolving Credit Commitment Percentage": as to any Lender at any
time, the percentage which such Lender's Revolving Credit Commitment then
constitutes of the Aggregate Revolving Credit Commitment (or, at any time after
the Aggregate Revolving Credit Commitment shall have expired or terminated, the
Revolving Credit Commitment Percentage of such Lender immediately prior to such
expiry or termination).
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Solvent": when used with respect to any Person, means that at the
time of determination, (i) the fair market value of its assets is in excess of
the total amount of its liabilities (including, without limitation, contingent
liabilities), and (ii) the present fair saleable value of its assets is greater
than its probable liability on its existing debts as such debts become absolute
and matured, and (iii) it is then able and expects to be able to pay its debts
(including, without limitation, contingent debts and other commitments) as they
mature, and (iv) it has capital sufficient to carry on its business as conducted
and as proposed to be conducted.
"Standby Letter of Credit": as defined in Section 3.1(b).
"Subsidiary": as to any Person, a corporation, partnership or other
entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person. Unless otherwise qualified, all references to a "Subsidiary" or
to "Subsidiaries" in this Agreement shall refer to a Subsidiary or Subsidiaries
of the Borrower.
<PAGE> 72
"Tangible Net Worth": as of any date of determination thereof, the
consolidated total assets of the Borrower and its Subsidiaries (excluding
Intangible Assets) minus Total Liabilities of the Borrower and its Subsidiaries,
determined in accordance with GAAP, consistently applied.
"Termination Date": July 29, 1999, subject to any extension that may
be granted pursuant to Section 2.1(b).
"Total Liabilities": as of any date of determination, the consolidated
total liabilities of the Borrower and its Subsidiaries that should be reflected
as liabilities in a consolidated balance sheet of the Borrower and its
Subsidiaries as at that date prepared in accordance with GAAP, consistently
applied, provided that for purposes of paragraph (b) of Section 7.1 only, the
term "Total Liabilities" shall include off-balance sheet Indebtedness.
"Type": as to any Loan, its nature as an Base Rate Loan or a LIBO
Loan.
"UCC": the Uniform Commercial Code, as from time to time hereafter in
effect in the State of California.
"Uniform Customs": the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time.
"Year 2000 Compliant": as defined in Section 6.8.
<PAGE> 73
EXHIBIT B
FORM OF REVOLVING CREDIT NOTE
U.S. $__________ [Date]
San Francisco, California
For value received, Advanced Fibre Communications, Inc., a Delaware
corporation (the "Borrower"), promises to pay to the order of
____________________ (the "Lender"), on the Termination Date (as defined in the
Credit Agreement referred to below), the lesser of (i) the principal amount of
____________________ Dollars ($__________) or (ii) the sum of the unpaid
principal amount of all amounts loaned by the Lender to the Borrower under this
Note as Revolving Credit Loans under the Credit Agreement. The principal amount
which can be borrowed under this Note (including L/C Obligations), when
aggregated with the principal amount which can be borrowed under all other Notes
issued in accordance with the terms of the Credit Agreement, will in no case
exceed the Aggregate Revolving Credit Commitment set forth in the Credit
Agreement.
The Borrower also promises to pay interest on the unpaid principal
amount borrowed hereunder from the date advanced until paid at the rates (which
shall not exceed the maximum rate permitted by applicable law) and at the times
determined in accordance with the provisions of that certain Revolving Credit
Agreement dated as of July 30, 1998 among the Borrower, the financial
institutions from time to time parties thereto as Lenders, and Banque Nationale
de Paris in its capacity as administrative agent for the Lenders (in such
capacity, the"Administrative Agent") (as amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement").
This Note is issued pursuant to, and is entitled to the benefits of,
the Credit Agreement to which reference is hereby made for a more complete
statement of the terms and conditions under which the Revolving Credit Loans
evidenced hereby are made and are to be repaid. Terms defined in the Credit
Agreement and not otherwise defined herein are used herein with the meanings so
defined.
All payments of principal and interest in respect of this Note shall
be made on the date and at the place due, to the Administrative Agent in lawful
money of the United States of America in same day funds.
This Note shall be governed by, and shall be construed and enforced in
accordance with, the law of the State of California.
The Lender shall record in accordance with its usual practice the date
and amount of each Revolving Credit Loan made hereunder, and the date and amount
of each payment of principal; provided, that the failure to record any such
amount shall not limit or otherwise affect the
<PAGE> 74
obligation of the Borrower to repay the Lender the outstanding principal amount
evidenced by this Note together with accrued interest thereon in accordance with
the terms of the Credit Agreement.
Upon the occurrence of an Event of Default set forth in paragraph (f)
of Article 8 of the Credit Agreement as applied to the Borrower (as defined in
the Credit Agreement), the unpaid balance of the principal amount of this Note
may become, and upon the occurrence and continuation of any one or more other
Events of Default, such unpaid balance may be declared to be, due and payable in
the manner, upon the conditions and with the effect provided in the Credit
Agreement.
The Borrower hereby waives diligence, presentment, protest, demand and
notice of every kind except as required pursuant to the Credit Agreement.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
and delivered by its duly authorized officer, as of the day and year and at the
place first above written.
Advanced Fibre Communications, Inc.
------------------------------------
By:
Title:
<PAGE> 75
EXHIBIT C
FORM OF LEGAL OPINION
<PAGE> 76
EXHIBIT D
FORM OF NOTICE OF BORROWING (DRAWINGS)
To: Banque Nationale de Paris, in its capacity as administrative agent
(with its successors in such capacities, the "Administrative Agent")
for the Lenders (as defined below) under the Revolving Credit
Agreement dated as of July 30, 1998 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement") among Advanced Fibre Communications, Inc., the financial
institutions from time to time parties thereto as Lenders (the
"Lenders"), and the Administrative Agent.
Pursuant to Section 2.2 of the Credit Agreement, this Notice of
Borrowing ("Notice") represents the request of the undersigned Borrower (the
"Borrower") to borrow on [the date hereof] __________, 19__ (the "Funding Date")
from the Lenders [the principal amount of $__________, to consist of the
following Loans:
(1) Base Rate Loan in the principal amount of $____________.
(2) LIBO Loans in the principal following principal amounts and
having the following Interest Periods: ________________________.
Proceeds of such Loans are to be deposited on the Funding Date into
the Borrower's disbursement account number __________ maintained at the office
of _________________.
The Borrower certifies that as of the Funding Date all of the
conditions precedent contained in Sections 4.2 of the Credit Agreement have been
satisfied (or waived pursuant to Section 10.1 of the Credit Agreement).
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Notice.
Dated this _____ day of _________, 199_.
Advanced Fibre Communications, Inc.
------------------------------------
By:
Title:
<PAGE> 77
EXHIBIT E
FORM OF NOTICE OF BORROWING (CONVERSION)
To: Banque Nationale de Paris, in its capacity as administrative agent
(with its successors in such capacities, the "Administrative Agent")
for the Lenders (as defined below) under the Revolving Credit
Agreement dated as of July 30, 1998 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement") among Advanced Fibre Communications, Inc., the financial
institutions from time to time parties thereto as Lenders (the
"Lenders"), and the Administrative Agent.
Pursuant to Section 2.8(a) of the Credit Agreement, this Notice of
Borrowing (Conversion) ("Notice") represents the election of the undersigned
Borrower (the "Borrower") to
[Convert $__________ in aggregate principal amount of Revolving Credit
Loans consisting of Base Rate Loans from Base Rate Loans to LIBO Loans
denominated in the same currency on __________, _____. The initial
Interest Period(s) for such LIBO Rate Loans is requested to be a
[one][two][three][six] month period.]
[Convert $__________ in aggregate principal amount of outstanding LIBO
Rate Loans to Base Rate Loans denominated in the same currency on
__________, _____.]
The Borrower certifies that as of the Funding Date all of the
conditions precedent contained in Section 4.2 of the Credit Agreement have been
satisfied (or waived pursuant to Section 10.1 of the Credit Agreement).
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Notice.
Dated this _____ day of _________, _____.
Advanced Fibre Communications, Inc.
------------------------------------
By:
Title:
<PAGE> 78
EXHIBIT F
FORM OF NOTICE OF BORROWING (CONTINUATION)
To: Banque Nationale de Paris, in its capacity as administrative agent
(with its successors in such capacities, the "Administrative Agent")
for the Lenders (as defined below) under the Revolving Credit
Agreement dated as of July 30, 1998 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement") among Advanced Fibre Communications, Inc., the financial
institutions from time to time parties thereto as Lenders (the
"Lenders"), and the Administrative Agent.
Pursuant to Section 2.8(b) of the Credit Agreement, this Notice of
Borrowing (Continuation) ("Notice") represents the election of the undersigned
Borrower (the "Borrower") to continue as LIBO Loans $__________ in aggregate
principal amount of Revolving Credit Loans consisting of LIBO Loans with a
current Interest Period ending __________, _____. The succeeding Interest Period
for such LIBO Loans is requested to be a [one][two][three][six] month period.
The Borrower certifies that as of the Funding Date all of the
conditions precedent contained in Section 4.2 of the Credit Agreement have been
satisfied (or waived pursuant to Section 10.1 of the Credit Agreement).
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meanings in this Notice.
Dated this _____ day of _________, _____.
Advanced Fibre Communications, Inc.
------------------------------------
By:
Title:
<PAGE> 79
EXHIBIT G
FORM OF COMPLIANCE CERTIFICATE
To: Banque Nationale de Paris, in its capacity as administrative agent
(with its successors in such capacities, the "Administrative Agent")
for the Lenders (as defined below) under the Revolving Credit
Agreement dated as of July 30, 1998 (as amended, restated,
supplemented or otherwise modified from time to time, the "Credit
Agreement") among Advanced Fibre Communications, Inc., the financial
institutions from time to time parties thereto as Lenders (the
"Lenders"), and the Administrative Agent.
Pursuant to Section 6.2(a) of the Credit Agreement, the [Chief
Financial Officer] [Treasurer] [Comptroller] of the undersigned, solely in his
capacity as such hereby certifies on behalf of the Borrower that:
1. I am the duly elected, qualified and acting [Chief Financial
Officer] [Treasurer] [Controller] of the Borrower.
2. Unless otherwise defined herein, terms defined in the Credit
Agreement shall have the same meanings in this Certificate.
3. There has been a review of the terms of the Credit Documents and a
review in reasonable detail of the transactions and consolidated financial
condition of the Borrower and its Subsidiaries during the accounting period(s)
covered by the financial statements identified below. Such review [has] [has
not] disclosed the existence during or at the end of such accounting period, and
as at the date hereof the undersigned [does] [does not] have knowledge, of any
condition or event which constitutes a Default or an Event of Default. [If such
condition or event exists or existed, specify (i) nature and period of such
condition or event and (ii) action being taken and/or proposed to be taken with
respect thereto.]
4. The financial statements, reports and copies of certain instruments
and documents attached hereto, namely,
A. ____________________, dated __________
B. ____________________, dated __________
C. ____________________, dated __________
D. ____________________, dated __________
are true, accurate and complete copies of the aforesaid instruments and
documents which constitute part of the customary books and records of the
Borrower.
5. The certificate attached as Annex I hereto demonstrates compliance
by the Borrower with the negative covenants of Section 7.1 of the Credit
Agreement.
Dated this _____ day of __________, _____.
Advanced Fibre Communications, Inc.
------------------------------------
By:
Title:
<PAGE> 80
EXHIBIT H
FORM OF ASSIGNMENT AND ACCEPTANCE
ASSIGNMENT AND ACCEPTANCE dated ________, ____, between
_________________ (the "Assignor") and __________________ (the "Assignee").
PRELIMINARY STATEMENTS
A. Reference is made to the Revolving Credit Agreement dated as of
July 30, 1998 (as amended, supplemented or otherwise modified from time to time,
the "Credit Agreement") among Advanced Fibre Communications, Inc., a Delaware
corporation (with its successors and permitted assigns, the "Borrower"), the
institutions from time to time parties thereto as Lenders, whether by execution
of the Credit Agreement or an Assignment and Acceptance, Banque Nationale de
Paris, a French banking association acting through its San Francisco branch, in
its separate capacity as administrative agent for the Lenders (with its
successors in such capacity, the "Administrative Agent"). Terms defined in the
Credit Agreement and not otherwise defined herein are used herein with the
meanings ascribed thereto in the Credit Agreement.
B. The Assignor is a Lender under the Credit Agreement and desires to
sell and assign to the Assignee, and the Assignee desires to purchase and assume
from the Assignor, on the terms and conditions set forth below, a _____ percent
(_____%) interest in the Aggregate Revolving Credit Commitment (the "Assigned
Percentage"), together with the Assignor's rights and obligations under the
Credit Agreement with respect to the Assigned Percentage.
NOW, THEREFORE, the Assignor and the Assignee hereby agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, the Assigned
Percentage, together with the Assignor's rights and obligations under the Credit
Agreement with respect to such Assigned Percentage, including, without
limitation, the obligation to make Revolving Credit Loans and to participate in
Letters of Credit.
2. The Assignor (i) represents and warrants that as of the date hereof
its Revolving Credit Commitment Percentage (without giving effect to assignments
thereof which have not yet become effective) is _____% and that such Revolving
Credit Commitment Percentage multiplied by the Aggregate Revolving Credit
Commitments is equal to $_________; (ii) represents and warrants that it has
legal and beneficial title to the interests being assigned by it hereunder free
and clear of any claim adverse to such title; (iii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit Agreement
or the execution, legality, validity, enforceability, genuineness. sufficiency
or value of the Credit Agreement, any of the other Credit Documents, or any
other instrument or document furnished pursuant thereto or executed and
delivered in connection therewith; and (iv) makes no representation or warranty
and assumes no responsibility with respect to the financial condition of the
Borrower or any Subsidiaries of the
<PAGE> 81
Borrower or the performance or observance by the Borrower or any Subsidiaries of
the Borrower, of any of such Persons' respective obligations under the Credit
Agreement, any other Credit Document or any instrument or document furnished
pursuant thereto.
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms that it
has received a copy of the Credit Agreement, together with copies of such other
Credit Documents, information, exhibits, reports, projections and forecasts that
the Assignee has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (iii) agrees that it shall have no
recourse against the Assignor with respect to any matters relating to the Credit
Agreement, any other Credit Document or this Assignment and Acceptance (except
with respect to the representations and warranties made by the Assignor in
clauses (i) and (ii) of Paragraph 2 above); (iv) agrees that it will,
independently and without reliance upon the Administrative Agent, the Assignor
or any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement and the other Credit Documents; (v)
appoints and authorizes the Administrative Agent to take such action as
administrative agent on its behalf and to exercise such powers under the Credit
Agreement and the other Credit Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (vi) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement and
other Credit Documents are required to be performed by it as a Lender; (vii)
confirms that it is an Eligible Assignee; and (viii) specifies as its address
for notices the address set forth beneath its name on the signature page hereof,
together with the name and address of its U.S. lending office.
4. The effective date for this Assignment and Acceptance shall be
__________, _____ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
acceptance by the Administrative Agent and for recording in the Register by the
Administrative Agent, together with a processing and recordation fee of $3,500
to be paid to the Administrative Agent by the [Assignor][Assignee].
5. As of the Effective Date, provided, that the Administrative Agent
accepts this Assignment and Acceptance and the Borrower accepts the Assignee
pursuant to the terms of Section 10.6(c) of the Credit Agreement, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall relinquish its rights and be released
from its obligations under the Credit Agreement with respect to the Assigned
Percentage.
6. From and after the Effective Date, provided, that the
Administrative Agent accepts this Assignment and Acceptance, the Administrative
Agent shall make all payments under the Credit Agreement in respect of the
Assigned Percentage (including, without limitation, all payments of principal,
interest and fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement for periods prior to the Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of California.
<PAGE> 82
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer "hereunto duly authorized, as of ___________, _____.
[NAME OF ASSIGNOR]
------------------------------------
By:
Title:
New Revolving Credit Commitment
Percentage _____%
New Revolving Credit Commitment
_____%
[NAME OF ASSIGNEE]
------------------------------------
By:
Title:
New Revolving Credit Commitment
Percentage _____%
New Revolving Credit Commitment
_____%
Notice Address:
Agreed to and accepted this _____ day of
__________,_____
BANQUE NATIONALE DE PARIS,
as Administrative Agent
__________________________________
By:
Title:
__________________________________
By:
Title:
ADVANCED FIBRE COMMUNICATIONS, INC.
__________________________________
By:
Title:
<PAGE> 83
SCHEDULE 5.6
MATERIAL LITIGATION
<PAGE> 84
SCHEDULE 5.14
LIST OF SUBSIDIARIES
<PAGE> 85
SCHEDULE 5.15
ENVIRONMENTAL MATTERS
<PAGE> 86
SCHEDULE 7.2
LIST OF INDEBTEDNESS
<PAGE> 87
SCHEDULE 7.3
LIST OF LIENS
<PAGE> 88
SCHEDULE 7.4
GUARANTEE OBLIGATIONS
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