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Credit Agreement

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Title:

Credit Agreement

Entities:

Lexar Media, Inc.; Silicon Valley Bank; Bank of America, NA

Date:

2005

Size:

210KB total

Price:

$60

ID:

#855875

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Start of Preview

CREDIT AGREEMENT

by and among

LEXAR MEDIA, INC.

as Borrower,

THE LENDERS THAT ARE SIGNATORIES HERETO

as the Lenders,

and

WELLS FARGO FOOTHILL, INC.

as the Arranger and Administrative Agent

Dated as of February 28, 2005

TABLE OF CONTENTS


			Page
1.	DEFINITIONS AND CONSTRUCTION		1

	1.1	Definitions	1

	1.2	Accounting Terms	1

	1.3	Code	1

	1.4	Construction	1

	1.5	Schedules and Exhibits	1

2.	LOAN AND TERMS OF PAYMENT		2

	2.1	Revolver Advances	2

	2.2	[INTENTIONALLY OMITTED]	2

	2.3	Borrowing Procedures and Settlements	2

	2.4	Payments	6

	2.5	Overadvances	8

	2.6	Interest Rates and Letter of Credit Fee: Rates, Payments, and Calculations	8

	2.7	Cash Management	9

	2.8	Crediting Payments; Clearance Charge	10

	2.9	Designated Account	10

	2.10	Maintenance of Loan Account; Statements of Obligations	10

	2.11	Fees	11

	2.12	Letters of Credit	11

	2.13	LIBOR Option	13

	2.14	Capital Requirements	15

3.	CONDITIONS; TERM OF AGREEMENT		15

	3.1	Conditions Precedent to the Initial Extension of Credit	15

	3.2	Conditions Precedent to all Extensions of Credit	16

	3.3	Term	17

	3.4	Effect of Termination	17

	3.5	Early Termination by Borrower	17

4.	REPRESENTATIONS AND WARRANTIES		18

	4.1	No Encumbrances	18

	4.2	Eligible Accounts	18

	4.3	[INTENTIONALLY OMITTED]	18

	4.4	Equipment	18

	4.5	Location of Inventory and Equipment	18

- i -

TABLE OF CONTENTS

(Continued)


			Page
	4.6	Inventory Records	18

	4.7	State of Incorporation; Location of Chief Executive Office; Organizational Identification Number; Commercial Tort Claims	18

	4.8	Due Organization and Qualification; Subsidiaries	19

	4.9	Due Authorization; No Conflict	19

	4.10	Litigation	20

	4.11	No Material Adverse Change	20

	4.12	Fraudulent Transfer	20

	4.13	Employee Benefits	20

	4.14	Environmental Condition	20

	4.15	Intellectual Property	20

	4.16	Leases	20

	4.17	Deposit Accounts and Securities Accounts	21

	4.18	Complete Disclosure	21

	4.19	Indebtedness	21

	4.20	Material Contracts	21

5.	AFFIRMATIVE COVENANTS		22

	5.1	Accounting System	22

	5.2	Collateral Reporting	22

	5.3	Financial Statements, Reports, Certificates	22

	5.4	Guarantor Reports	22

	5.5	Inspection	22

	5.6	Maintenance of Properties	22

	5.7	Taxes	23

	5.8	Insurance	23

	5.9	Location of Inventory and Equipment	23

	5.10	Compliance with Laws	24

	5.11	Leases	24

	5.12	Existence	24

	5.13	Environmental	24

	5.14	Disclosure Updates	24

	5.15	Control Agreements	24

	5.16	Formation of Subsidiaries	25

- ii -

TABLE OF CONTENTS

(Continued)


			Page
	5.17	Update List of Material Contracts	25

6.	NEGATIVE COVENANTS		26

	6.1	Indebtedness	26

	6.2	Liens	27

	6.3	Restrictions on Fundamental Changes	27

	6.4	Disposal of Assets	27

	6.5	Change Name	27

	6.6	Nature of Business	27

	6.7	Prepayments and Amendments	27

	6.8	Change of Control	27

	6.9	Consignments	27

	6.10	Distributions	28

	6.11	Accounting Methods	28

	6.12	Investments	28

	6.13	Transactions with Affiliates	28

	6.14	Use of Proceeds	28

	6.15	Inventory and Equipment with Bailees	28

	6.16	Financial Covenants	29

	6.17	Material Contracts	29

7.	EVENTS OF DEFAULT		29

8.	THE LENDER GROUPS RIGHTS AND REMEDIES		31

	8.1	Rights and Remedies	31

	8.2	Remedies Cumulative	32

9.	TAXES AND EXPENSES		32

10.	WAIVERS; INDEMNIFICATION		32

	10.1	Demand; Protest; etc.	32

	10.2	The Lender Groups Liability for Collateral	32

	10.3	Indemnification	32

	10.4	Waiver of Consequential Damages, Etc.	33

11.	NOTICES		33

12.	CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER		34

13.	ASSIGNMENTS AND PARTICIPATIONS; SUCCESSORS		35

	13.1	Assignments and Participations	35

- iii -

TABLE OF CONTENTS

(Continued)


			Page
	13.2	Successors	36

14.	AMENDMENTS; WAIVERS		37

	14.1	Amendments and Waivers	37

	14.2	Replacement of Holdout Lender	38

	14.3	No Waivers; Cumulative Remedies	38

15.	AGENT; THE LENDER GROUP		38

	15.1	Appointment and Authorization of Agent	38

	15.2	Delegation of Duties	39

	15.3	Liability of Agent	39

	15.4	Reliance by Agent	39

	15.5	Notice of Default or Event of Default	39

	15.6	Credit Decision	40

	15.7	Costs and Expenses; Indemnification	40

	15.8	Agent in Individual Capacity	41

	15.9	Successor Agent	41

	15.10	Lender in Individual Capacity	41

	15.11	Withholding Taxes	42

	15.12	Collateral Matters	43

	15.13	Restrictions on Actions by Lenders; Sharing of Payments	44

	15.14	Agency for Perfection	44

	15.15	Payments by Agent to the Lenders	44

	15.16	Concerning the Collateral and Related Loan Documents	44

	15.17	Field Audits and Examination Reports; Confidentiality; Disclaimers by Lenders; Other Reports and Information	45

	15.18	Several Obligations; No Liability	45

	15.19	Bank Product Providers	46

16.	GENERAL PROVISIONS		46

	16.1	Effectiveness	46

	16.2	Section Headings	46

	16.3	Interpretation	46

	16.4	Severability of Provisions	46

	16.5	Counterparts; Electronic Execution	46

	16.6	Revival and Reinstatement of Obligations	46

- iv -

TABLE OF CONTENTS

(Continued)

- v -

EXHIBITS AND SCHEDULES


Exhibit A-1		Form of Assignment and Acceptance
Exhibit B-1		Form of Borrowing Base Certificate
Exhibit C-1		Form of Compliance Certificate
Exhibit L-1		Form of LIBOR Notice
Schedule A-1		Agents Account
Schedule C-1		Revolver Commitments
Schedule D-1		Designated Account
Schedule P-1		Permitted Investments
Schedule P-2		Permitted Liens
Schedule 1.1		Definitions
Schedule 2.7(a)		Cash Management Banks
Schedule 3.1		Conditions Precedent
Schedule 4.5		Locations of Inventory and Equipment
Schedule 4.7(a)		States of Organization
Schedule 4.7(b)		Chief Executive Offices
Schedule 4.7(c)		Organizational Identification Numbers
Schedule 4.7(d)		Commercial Tort Claims
Schedule 4.8(b)		Capitalization of Borrower
Schedule 4.8(c)		Capitalization of Subsidiaries
Schedule 4.10		Litigation
Schedule 4.14		Environmental Matters
Schedule 4.15		Intellectual Property
Schedule 4.17		Deposit Accounts and Securities Accounts
Schedule 4.19		Permitted Indebtedness
Schedule 4.20		List of Material Contracts
Schedule 5.2		Collateral Reporting
Schedule 5.3		Financial Statements, Reports, Certificates
Schedule 5.15		Excluded Deposit Account
Schedule 6.9		Permitted Consignees

- vi -

CREDIT AGREEMENT

THIS CREDIT AGREEMENT (this Agreement), is entered into as of February 28, 2005, by and among the lenders identified on the signature pages hereof (such lenders, together with their respective successors and permitted assigns, are referred to hereinafter each individually as a Lender and collectively as the Lenders), WELLS FARGO FOOTHILL, INC., a California corporation, as