Common use of Limiting Agreements Clause in Contracts

Limiting Agreements. (a) Neither Borrower, any Guarantor nor any of their respective Subsidiaries shall enter into, any agreement, instrument or transaction which has or may have the effect of prohibiting or limiting Borrower's or any Guarantor's ability to pledge to Agent the Unencumbered Operating Properties which are owned by the Borrower or such Guarantor as security for the Loans; provided that such Persons may enter into an agreement which has the effect of limiting Borrower's or Guarantor's ability to pledge the Unencumbered Operating Properties solely as a result of the operation of a financial covenant which is no more restrictive against such Persons than those financial covenants contained in the Loan Documents. Borrower shall take, and shall cause the Guarantors and their respective Subsidiaries to take, such actions as are necessary to preserve the right and ability of Borrower and the Guarantors to pledge the Unencumbered Operating Properties as security for the Loans without any such pledge after the date hereof causing or permitting the acceleration (after the giving of notice or the passage of time, or otherwise) of any other Indebtedness of Borrower, the Guarantors or any of their respective Subsidiaries. (b) Borrower shall, upon demand, provide to the Agent such evidence as the Agent may reasonably require to evidence compliance with this Section 7.15, which evidence shall include, without limitation, copies of any agreements or instruments which would in any way restrict or limit the Borrower's or any Guarantor's ability to pledge assets as security for Indebtedness, or which provide for the occurrence of a default (after the giving of notice or the passage of time, or otherwise) if assets are pledged in the future as security for Indebtedness of the Borrower or any of its Subsidiaries.

Limiting Agreements. Under the circumstances contemplated by Section 5.10(c) or 5.10(d) of the Participation Agreement, the CIRRUS Partner shall have the option to invoke the process set forth in this Section 10.11 (the "Limiting Agreement Procedure"). (a) Neither BorrowerIf the CIRRUS Partner elects to invoke the Limiting Agreement Procedure by reason of Section 5.10(c) of the Participation Agreement, any Guarantor nor the IBM Partner (or any of their respective Subsidiaries its Affiliates) may, but shall enter intonot be required to, any agreement, instrument or transaction which has or may have acquire the effect entire interest of prohibiting or limiting Borrower's or any Guarantor's ability the CIRRUS Partner in the Partnership subject to pledge the following: (i) the CIRRUS Partner shall be paid cash in an amount equal to Agent the Unencumbered Operating Properties which are owned by the Borrower or such Guarantor as security for the Loansbalance in its Capital Account; provided that such Persons may and (ii) CIRRUS and IBM shall enter into an indemnity and release agreement which has in a form reasonably satisfactory to each party indemnifying CIRRUS and holding CIRRUS harmless for liabilities under the effect Joint and Several Lease Guarantees for lease payment obligations arising for periods after the date the CIRRUS Partner's interest is so acquired. Following the purchase of limiting Borrowerthe CIRRUS Partner's interest in the Partnership, the CIRRUS License Agreements with the Partnership and the CIRRUS Equipment Lease with-respect to equipment then installed and leased by the Partnership from CIRRUS shall continue in accordance with the terms then in effect. In the event that the IBM Partner (or Guarantorany of its Affiliates) purchases the CIRRUS Partner's ability interest in the Partnership pursuant to pledge this Section 10.11(a), CIRRUS shall be entitled to Proration of Payments and shall, subject to the Unencumbered Operating Properties solely as terms of the Limiting Agreements, purchase the Semiconductor Wafers from the Partnership (or its successor) during the 24-month wind-down period at the Partnership Cost (provided that CIRRUS shall not be required to purchase Semiconductor Wafers that CIRRUS is unable to purchase from the Partnership an a result of the operation of a financial covenant which is no more restrictive against such Persons than those financial covenants contained Limiting Agreements that caused the Limiting Agreement Procedure to be invoked), as estimated in the Loan Documents. Borrower then current approved Business Plan plus the per wafer payment specified in Sections 8.4.1 through 8.4.3 of the Cirrus Sales Agreement. (b) If the CIRRUS Partner elects to invoke the Limiting Agreement Procedure by reason of Section 5.10(c) of the Participation Agreement but the IBM Partner does not elect to acquire the CIRRUS Partner's interest in the Partnership pursuant to Section 10.11(a), then the CIRRUS Partner (or any of its Affiliates) may, but shall takenot be required to, acquire the entire interest of the IBM Partner in the Partnership subject to the following: (i) the IBM Partner shall be paid cash in an amount equal to the balance in its Capital Account; and (ii) CIRRUS and IBM shall cause enter into an indemnity and release agreement in a form reasonably satisfactory to each party indemnifying IBM and holding IBM harmless for liabilities under the Guarantors Joint and their respective Subsidiaries to take, such actions as are necessary to preserve the right and ability of Borrower and the Guarantors to pledge the Unencumbered Operating Properties as security Several Lease Guarantees for the Loans without any such pledge lease payment obligations arising for periods after the date hereof causing or permitting the acceleration (after IBM Partner's interest is so acquired. Following the giving purchase of notice or the passage of time, or otherwise) of any other Indebtedness of BorrowerIBM Partner's interest in the Partnership, the Guarantors IBM Real Estate Lease, the IBM Services Agreement and the IBM Equipment Leases with respect to equipment then installed and leased by the Partnership from IBM shall continue in accordance with the terms then in effect. The per-wafer payments payable to IBM pursuant to Section 4.1.2 of the IBM Patent License shall be reduced to [*] per wafer (which change shall apply only to those wafers not produced for IBM) and the IBM Patent License and the IBM Know-How License shall continue for the remainder of the term of the Partnership (i.e., December 31, 2002, unless the Partnership is terminated earlier in accordance with the terms hereof) on the same terms, conditions and limitations that were in effect immediately prior to the purchase of the IBM Partner's interest in the Partnership but only with respect to Intellectual Property owned by IBM. In the event that the CIRRUS Partner (or any of its Affiliates) purchases the IBM Partner's interest in the Partnership pursuant to this Section 10.11(b), IBM shall be entitled to Proration of Payments and IBM shall thereafter purchase the Semiconductor Wafers from the Partnership (or its successor) during the 24 month wind-down period at Partnership Cost as estimated in the then-current approved Business Plan. The parties acknowledge and agree that, subsequent to the purchase of the IBM Partner's interest, the Partnership will not have the opportunity to qualify an a subsidiary of IBM within the meaning of various third-party cross-licenses to which IBM is a party and, accordingly, will not be entitled to patent licenses available under such cross-licenses to such IBM subsidiaries. (c) In the event that the CIRRUS Partner invokes the Limiting Agreement Procedure and neither the IBM Partner nor the CIRRUS Partner (or any of their respective SubsidiariesAffiliates) elects to purchase the Partnership interest of the unaffiliated Partner pursuant to Section 10.11(a) or 10.11(b), then the Partnership shall be dissolved in Accordance with Section 11.02. (bd) Borrower shall, upon demand, provide If the CIRRUS Partner elects to invoke the Agent such evidence as the Agent may reasonably require to evidence compliance with this Limiting Agreement Procedure by reason of Section 7.15, which evidence shall include, without limitation, copies of any agreements or instruments which would in any way restrict or limit the Borrower's or any Guarantor's ability to pledge assets as security for Indebtedness, or which provide for the occurrence of a default (after the giving of notice or the passage of time, or otherwise5.10(d) if assets are pledged in the future as security for Indebtedness of the Borrower Participation Agreement, the CIRRUS Partner (or any of its SubsidiariesAffiliates) shall acquire all or a portion of the interest of the IBM Partner in the Partnership as specified by the IBM Partner within 10 Business Days of the receipt of notice from CIRRUS invoking the Limited Agreement Procedure (but in any event not less than [*] of the total interests in the Partnership) subject to the following: (i) the IBM Partner shall be paid cash in an amount equal to the balance in its Capital Account multiplied by the portion of its interest transferred, and this Agreement will be amended to adjust Percentages to reflect the portion sold, to adjust future capital contributions correspondingly and to make other conforming changes to reflect the revised ownership structure including the appointment by the CIRRUS Partner of a majority of the Governing Board; and (ii) in the event of the sale of the entire interest of the IBM Partner, CIRRUS and IBM shall enter into an indemnity and release agreement in a form reasonably satisfactory to each party indemnifying IBM and holding IBM harmless for liabilities under the Joint and Several Lease Guarantees for lease payment obligations arising for periods after the date the IBM Partner's interest is so acquired; and in the event of a partial sale of the interest of the IBM Partner, Section 5.12 and Article IX of the Participation Agreement will be appropriately amended to reflect the revised ownership percentages. Following the purchase of the IBM Partner's interest in the Partnership, the IBM Real Estate Lease, the IBM Services Agreement and the IBM Equipment Leases with respect to equipment then installed and leased by the Partnership from IBM shall continue in accordance with the terms then in effect. The per-wafer payments payable to IBM pursuant to Section 4.1.2 of the IBM Patent License shall be reduced to [*] per wafer (which change shall apply only to those wafers not produced for IBM) and the IBM Patent License and the IBM Know-How License shall continue for the remainder of the term of the Partnership (i.e., December 31, 2002, unless the Partnership is terminated earlier in accordance with the terms hereof) on the same terms, conditions and limitations that were in effect immediately prior to the purchase of the IBM Partner's interest in the Partnership but only with respect to Intellectual Property owned by IBM. In the event that the CIRRUS Partner (or any of its Affiliates) purchases all or a portion of the IBM Partner's interest in the Partnership pursuant to this Section 10.11(d), IBM shall be entitled to Proration of Payments. In the event of the sale of the entire interest of the IBM Partner, IBM shall thereafter purchase the Semiconductor Wafers from the Partnership (or its successor) during the 24-month wind-down period at Partnership Cost as estimated in the then-current approved Business Plan. In the event of a partial sale of the interest of the IBM Partner, the IBM Sales Contract and the CIRRUS Sales Contract will be amended so as to revise the CIRRUS Capacity Allocation and the IBM Capacity Allocation to reflect the new ownership percentages and to make all other changes required to be consistent with the revised allocations. The parties acknowledge and agree that, subsequent to the purchase of all or a portion of the IBM Partner's interest, the Partnership will not have the opportunity to qualify as a subsidiary of IBM within the meaning of various third-party cross-licenses to which IBM is a party and, accordingly, will not be entitled to patent licenses available under such cross-licenses to such IBM subsidiaries. ARTICLE XI Dissolution SECTION 11.

Limiting Agreements. (a) Neither Borrower, any Guarantor the Guarantors nor any of their respective Subsidiaries shall enter into, any agreement, instrument or transaction which has or may have the effect of prohibiting or limiting Borrower's ’s, the Guarantors’ or any Guarantor's of their respective Subsidiaries’ ability to pledge to Agent the any Unencumbered Operating Borrowing Base Properties which are owned by the Borrower or such Guarantor as security for the Loans; provided that such Persons may enter into an agreement which has the effect of limiting Borrower's or Guarantor's ability to pledge the Unencumbered Operating Properties solely as a result of the operation of a financial covenant which is no more restrictive against such Persons than those financial covenants contained in the Loan DocumentsObligations. Borrower shall take, and shall cause the Guarantors and their respective Subsidiaries to take, such actions as are necessary to preserve the right and ability of Borrower and Borrower, the Guarantors and their respective Subsidiaries to pledge the Unencumbered Operating Properties such assets as security for the Loans Obligations without any such pledge after the date hereof causing or permitting the acceleration (after the giving of notice or the passage of time, or otherwise) of any other Indebtedness of Borrower, the Guarantors or any of their respective Subsidiaries. Notwithstanding anything to the contrary in this §7.12, the provisions of this §7.12 shall not apply to any agreement evidencing other Unsecured Indebtedness of the Borrower, REIT or any of their respective Subsidiaries which requires the use of Unencumbered Borrowing Base Properties as a borrowing base for other Unsecured Indebtedness or which contains financial covenants of a similar type to those in §9.2 and §9.3 of this Agreement. (b) Borrower shall, upon demand, provide to the Agent such evidence as the Agent may reasonably require to evidence compliance with this Section 7.15§7.12, which evidence shall include, without limitation, copies of any agreements or instruments which would in any way restrict or limit the Borrower's ’s, any Guarantor’s or any Guarantor's Subsidiary’s ability to pledge assets Unencumbered Borrowing Base Properties as security for Indebtedness, or which provide for the occurrence of a default (after the giving of notice or the passage of time, or otherwise) if assets Unencumbered Borrowing Base Properties are pledged in the future as security for Indebtedness of the Borrower Borrower, Guarantor or any of its SubsidiariesBorrowing Base Subsidiary.

Limiting Agreements. Without affecting the provisions of Section ------------------- ------- 5.15 of this Agreement, but cumulative of and in addition thereto: ----- (a) Neither BorrowerExcept for the Indenture dated February 1, any Guarantor 1994 between the Borrower and ▇▇▇▇▇▇ Guaranty Trust Company of New York, as Trustee, neither Borrower nor any of their respective its Subsidiaries has entered into, and after the date hereof, neither Borrower nor any of its Subsidiaries shall enter into, any agreement, instrument or transaction which has or may have the effect of prohibiting or limiting Borrower's or any Guarantor's ability to pledge to Agent the Unencumbered Operating Properties which are owned by the Borrower or such Guarantor as security for the Loans; provided that such Persons may enter into an agreement which has Loans assets now or hereafter owned by Borrower up to the effect of limiting Borrower's or Guarantor's ability to pledge the Unencumbered Operating Properties solely as a result of the operation of a financial covenant which is no more restrictive against such Persons than those financial covenants contained value described in the Loan Documentsthis Section 6.7. ----------- Borrower shall take, and shall cause the Guarantors and their respective its Subsidiaries to take, such actions as are necessary (including, without limitation, otherwise limiting the amount of secured indebtedness of the Borrower and its Subsidiaries) to preserve the right and ability of Borrower and the Guarantors to pledge assets up to the Unencumbered Operating Properties value described in this Section 6.7 as security for the Loans without any such pledge after the date ----------- hereof causing or permitting the acceleration (after the giving of notice or the passage of time, or otherwise) of any other Indebtedness indebtedness of Borrower, the Guarantors Borrower or any of their respective its Subsidiaries. For the purpose of this paragraph, the Historical Value of the assets to be kept available by Borrower to be pledged as security for the Loans shall be assets having an aggregate Historical Value of not less than one hundred thirty-three percent (133%) of the Commitment; provided however that the -------- ------- foregoing shall not be construed as a maximum amount of collateral which could be required or accepted by the Lenders under any other agreement or in any proceeding. (b) Borrower shall, upon demand, provide to the Agent Lenders such evidence as the Agent Lenders may reasonably require to evidence Borrower's compliance with this Section 7.15covenant, which evidence shall include, without limitation, limitation (i) copies of any agreements or instruments which would in any way restrict or limit the Borrower's or any Guarantor's ability to pledge assets as security for Indebtednessindebtedness, or which provide for the occurrence of a default (after the giving of notice or the passage of time, or otherwise) if assets are pledged in the future as security for Indebtedness indebtedness of the Borrower or any of its Subsidiaries, (ii) a summary of the total debt of Borrower and its Subsidiaries, and (iii) a summary of any of such debt which is secured by any mortgage, pledge, lien, charge, encumbrance or other security interest. (c) Nothing in this covenant shall be construed as an obligation of Borrower to, or request by the Lenders that Borrower, grant any mortgage, pledge or security interest in any of its properties.

Limiting Agreements. (a) Neither BorrowerBorrower shall not, any Guarantor nor and shall not permit any of their respective its Subsidiaries shall or the REIT to, enter into, any agreement, instrument or transaction which has or may would be reasonably expected to have the effect of prohibiting or limiting Borrower's ’s or any Guarantor's of its Subsidiaries’ ability to pledge to Agent the any Unencumbered Operating Properties which are owned by the Borrower or such Guarantor as security for the Loans; provided that such Persons may enter into an agreement which has the effect of limiting Borrower's or Guarantor's ability to pledge the Unencumbered Operating Properties solely as a result of the operation of a financial covenant which is no more restrictive against such Persons than those financial covenants contained in the Loan DocumentsObligations. Borrower shall take, and shall cause its Subsidiaries and the Guarantors and their respective Subsidiaries REIT to take, such actions as are necessary to preserve the right and ability of Borrower Borrower, and the Guarantors its Subsidiaries to pledge the Unencumbered Operating Properties such assets as security for the Loans Obligations without any such pledge after the date hereof causing or permitting the acceleration (after the giving of notice or the passage of time, or otherwise) of any other Indebtedness of Borrower, the Guarantors Borrower or any of their respective Subsidiariesits Subsidiaries or the REIT. Notwithstanding anything to the contrary in this §7.12, the provisions of this §7.12 shall not apply to any agreement evidencing other Unsecured Indebtedness of the Borrower or any of its Subsidiaries which requires the use of Unencumbered Properties as a borrowing base for other Unsecured Indebtedness or which contains financial covenants of a similar type to those in §9.1 of this Agreement. (b) Borrower shall, upon demand, provide to the Agent such evidence as the Agent may reasonably require to evidence compliance with this Section 7.15§7.12, which evidence shall include, without limitation, copies of any agreements or instruments which would be reasonably expected to in any way restrict or limit the Borrower's ’s or any Guarantor's Subsidiary’s ability to pledge assets Unencumbered Properties as security for Indebtednessthe Obligations, or which provide for the occurrence of a default (after the giving of notice or the passage of time, or otherwise) if assets Unencumbered Properties are pledged in the future as security for Indebtedness the Obligations of the Borrower Borrower, any Guarantor, if any, or any of its SubsidiariesUnencumbered Property Subsidiary.

Limiting Agreements. (a) Neither Borrower, Although neither the Borrower nor any Guarantor is required by this Agreement to pledge any assets as collateral for the Obligations, neither Borrower nor any of their respective its Subsidiaries shall enter into, any agreement, instrument or transaction which has or may have the effect of prohibiting or limiting Borrower's ’s or any Guarantor's ’s ability to pledge to Agent any of the Unencumbered Operating Properties which are owned by the Borrower Pool Assets or such Guarantor Intercompany Loans as security for the Loans; Obligations (provided that such Persons may enter into an agreement which has the effect of limiting Borrower's or Guarantor's ability requirement to pledge maintain the Unencumbered Operating Properties solely as a result of Pool Assets and Intercompany Loans unencumbered to support the operation of a financial covenant which is no more restrictive against such Persons than those financial covenants contained in Permitted Unsecured Debt and other Unsecured Debt approved pursuant to §8.2(h)permitted by this Agreement shall not violate the Loan Documentsforegoing covenant). Borrower shall take, and shall cause the Guarantors and their respective its Subsidiaries to take, such actions as are necessary to preserve the right and ability of Borrower and the Guarantors to pledge the Unencumbered Operating Properties such assets as security for the Loans Obligations without any such pledge after the date hereof causing or permitting the acceleration (after the giving of notice or the passage of time, or otherwise) of any other Indebtedness of Borrower, the Guarantors Borrower or any of their respective its Subsidiaries. Notwithstanding anything to the contrary in this §8.5, the provisions of this §8.5 shall not apply to any agreement evidencing Permitted Unsecured Debt and other Unsecured Debt of the Borrower approvedpermitted pursuant to §8.2(hi) which requires the use of the Unencumbered Pool Assets or Intercompany Loans as a borrowing base for such permitted the Unsecured Debt or which contains financial covenants of a similar type to those in §8.1(a) of this Agreement. (b) Borrower shall, upon demand, provide to the Agent such evidence as the Agent may reasonably require to evidence compliance with this Section 7.15§8.5, which evidence shall include, without limitation, copies of any agreements or instruments which would in any way restrict or limit the Borrower's ’s or any Guarantor's ’s ability to pledge assets the Unencumbered Pool Assets and Intercompany Loans as security for Indebtedness, or which provide for the occurrence of a default (after the giving of notice or the passage of time, or otherwise) if assets any of the Unencumbered Pool Assets or Intercompany Loans are pledged in the future as security for Indebtedness of the Borrower or any of its SubsidiariesBorrower.