EXHIBIT 10.61
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CADENCE DESIGN SYSTEMS, INC.
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$260,000,000
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
Dated as of September 28, 2001
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ABN AMRO BANK N.V.,
as Agent and as Sole Lead Arranger
FLEET NATIONAL BANK,
as Sole-Syndication Agent,
KEYBANK NATIONAL ASSOCIATION, AND
UBS AG, STAMFORD BRANCH,
as Co-Documentation Agents
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS ................................................................1
SECTION 1.01 Certain Defined Terms.................................................1
SECTION 1.02 Accounting Principles................................................14
(a) Accounting Terms.............................................14
(b) GAAP Changes.................................................14
(c) "Fiscal Year" and "Fiscal Quarter"...........................14
SECTION 1.03 Interpretation.......................................................14
ARTICLE II THE LOANS ................................................................16
SECTION 2.01 Amounts and Terms of Commitments.....................................16
(a) The Revolving Credit.........................................16
(b) The Term Loans...............................................16
SECTION 2.02 Borrowing Procedure..................................................16
(a) Notice to the Agent..........................................16
(b) Notice to the Banks..........................................16
SECTION 2.03 Non-Receipt of Funds.................................................17
SECTION 2.04 Lending Offices......................................................17
SECTION 2.05 Evidence of Indebtedness.............................................17
SECTION 2.06 Minimum Amounts......................................................18
SECTION 2.07 Required Notice......................................................18
ARTICLE III INTEREST AND FEES; CONVERSION OR CONTINUATION............................18
SECTION 3.01 Interest.............................................................18
(a) Interest Rate................................................18
(b) Interest Periods.............................................18
(c) Interest Payment Dates.......................................19
(d) Notice to the Borrower and the Banks.........................19
SECTION 3.02 Default Rate of Interest.............................................20
SECTION 3.03 Fees.................................................................20
(a) Revolving Commitment Fees....................................20
(b) Utilization Fees.............................................20
(c) Agency Fee...................................................21
(d) Fees Nonrefundable...........................................21
SECTION 3.04 Computations.........................................................21
SECTION 3.05 Conversion or Continuation...........................................21
(a) Election.....................................................21
(b) Automatic Conversion.........................................21
(c) Notice to the Agent..........................................21
(d) Notice to the Banks..........................................22
i.
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SECTION 3.06 Replacement of Reference Banks.......................................22
SECTION 3.07 Highest Lawful Rate..................................................22
ARTICLE IV REDUCTION OF REVOLVING COMMITMENTS; REPAYMENT; PREPAYMENT.................22
SECTION 4.01 Reduction or Termination of the Revolving Commitments................22
(a) Optional Reduction or Termination............................22
(b) Mandatory Termination........................................22
(c) Extension of Revolving Termination Date......................22
(d) [Intentionally Omitted.].....................................23
(e) Notice.......................................................23
(f) Adjustment of Revolving Commitment Fee and Utilization
Fee; No Reinstatement........................................23
SECTION 4.02 Repayment of Loans...................................................23
(a) Revolving Loans..............................................23
(b) Term Loans...................................................23
SECTION 4.03 Prepayments..........................................................23
(a) Optional Prepayments.........................................23
(b) [Intentionally Omitted.].....................................24
(c) Notice; Application..........................................24
ARTICLE V YIELD PROTECTION AND ILLEGALITY............................................24
SECTION 5.01 Inability to Determine Rates.........................................24
SECTION 5.02 Funding Losses.......................................................24
SECTION 5.03 Regulatory Changes...................................................25
(a) Increased Costs..............................................25
(b) Capital Requirements.........................................25
(c) Requests.....................................................25
SECTION 5.04 Illegality...........................................................25
SECTION 5.05 Funding Assumptions..................................................26
SECTION 5.06 Obligation to Mitigate...............................................26
SECTION 5.07 Substitution of Banks................................................26
ARTICLE VI PAYMENTS .................................................................27
SECTION 6.01 Pro Rata Treatment...................................................27
SECTION 6.02 Payments.............................................................27
(a) Payments.....................................................27
(b) Application..................................................27
(c) Extension....................................................27
SECTION 6.03 Taxes................................................................27
(a) No Reduction of Payments.....................................27
(b) Deduction or Withholding; Tax Receipts.......................28
(c) Indemnity....................................................28
ii.
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(d) Forms W-8BEN and W-8ECI......................................28
(e) Mitigation...................................................28
SECTION 6.04 Non-Receipt of Funds.................................................29
SECTION 6.05 Sharing of Payments..................................................29
ARTICLE VII CONDITIONS PRECEDENT.....................................................29
SECTION 7.01 Conditions Precedent to the Initial Loans............................29
(a) Fees and Expenses............................................29
(b) Loan Documents...............................................29
(c) Certificate of Responsible Officer...........................30
(d) Corporate Documents..........................................30
(e) Legal Opinion................................................30
(f) Compliance Certificate.......................................30
(g) Material Adverse Effect......................................30
(h) Payment to Departing Banks...................................30
SECTION 7.02 Conditions Precedent to All Loans....................................30
(a) Notice.......................................................30
(b) Representations and Warranties; No Default...................31
(c) Additional Documents.........................................31
ARTICLE VIII REPRESENTATIONS AND WARRANTIES..........................................31
SECTION 8.01 Representations and Warranties.......................................31
(a) Organization and Powers......................................31
(b) Authorization; No Conflict...................................31
(c) Binding Obligation...........................................32
(d) Consents.....................................................32
(e) No Defaults..................................................32
(f) Title to Properties; Liens...................................32
(g) Litigation...................................................32
(h) Compliance with Environmental Laws...........................32
(i) Governmental Regulation......................................32
(j) ERISA........................................................33
(k) Subsidiaries.................................................33
(l) Margin Regulations...........................................33
(m) Taxes........................................................33
(n) Patents and Other Rights.....................................34
(o) Insurance....................................................34
(p) Financial Statements.........................................34
(q) Liabilities..................................................34
(r) Labor Disputes, Etc..........................................34
(s) Solvency.....................................................34
(t) Disclosure...................................................34
iii.
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ARTICLE IX COVENANTS ................................................................35
SECTION 9.01 Reporting Covenants..................................................35
(a) Financial Statements and Other Reports.......................35
(b) Additional Information.......................................36
SECTION 9.02 Financial Covenants..................................................37
(a) Minimum Consolidated EBITDA..................................37
(b) [Intentionally omitted.].....................................37
(c) Minimum Fixed Charge Coverage Ratio..........................37
(d) Minimum Current Ratio........................................37
(e) Maximum Funded Debt to EBITDA Ratio..........................37
SECTION 9.03 Additional Affirmative Covenants.....................................38
(a) Preservation of Existence, Etc...............................38
(b) Payment of Obligations.......................................38
(c) Maintenance of Insurance.....................................38
(d) Keeping of Records and Books of Account......................38
(e) Inspection Rights............................................38
(f) Compliance with Laws, Etc....................................39
(g) Maintenance of Properties, Etc...............................39
(h) Licenses.....................................................39
(i) Action Under Environmental Laws..............................39
(j) Use of Proceeds..............................................39
(k) Further Assurances and Additional Acts.......................39
SECTION 9.04 Negative Covenants...................................................40
(a) Liens; Negative Pledges......................................40
(b) Change in Nature of Business.................................40
(c) Restrictions on Fundamental Changes..........................40
(d) Sales of Assets..............................................40
(e) Loans and Investments........................................41
(f) Transactions with Related Parties............................43
(g) Hazardous Substances.........................................43
(h) Accounting Changes...........................................43
ARTICLE X EVENTS OF DEFAULT..........................................................43
SECTION 10.01 Events of Default....................................................43
(a) Payments.....................................................43
(b) Representations and Warranties...............................44
(c) Failure by Borrower to Perform Certain Covenants.............44
(d) Failure by Borrower to Perform Other Covenants...............44
(e) Insolvency; Voluntary Proceedings............................44
(f) Involuntary Proceedings......................................44
(g) Default Under Other Indebtedness.............................44
(h) Judgments....................................................45
(i) ERISA........................................................45
(j) Dissolution, Etc.............................................45
iv.
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(k) Subordination Provisions.....................................46
(l) Mergers and Acquisitions.....................................46
SECTION 10.02 Effect of Event of Default...........................................46
ARTICLE XI THE AGENT ................................................................46
SECTION 11.01 Authorization and Action.............................................46
SECTION 11.02 Limitation on Liability of Agent; Notices; Closing...................47
(a) Limitation on Liability of Agent.............................47
(b) Notices......................................................47
(c) Closing......................................................48
SECTION 11.03 Agent and Affiliates.................................................48
SECTION 11.04 Notice of Defaults...................................................48
SECTION 11.05 Non-Reliance on Agent................................................48
SECTION 11.06 Indemnification......................................................49
SECTION 11.07 Delegation of Duties.................................................49
SECTION 11.08 Successor Agent......................................................49
SECTION 11.09 Co-Agents............................................................49
ARTICLE XII MISCELLANEOUS............................................................50
SECTION 12.01 Amendments and Waivers...............................................50
SECTION 12.02 Notices..............................................................51
(a) Notices......................................................51
(b) Facsimile and Telephonic Notice..............................51
SECTION 12.03 No Waiver; Cumulative Remedies.......................................51
SECTION 12.04 Costs and Expenses; Indemnification..................................51
(a) Costs and Expenses...........................................52
(b) Indemnification..............................................52
(c) Other Charges................................................52
SECTION 12.05 Right of Set-Off.....................................................53
SECTION 12.06 Survival.............................................................53
SECTION 12.07 Obligations Several..................................................53
SECTION 12.08 Benefits of Agreement................................................53
SECTION 12.09 Binding Effect; Assignment...........................................53
(a) Binding Effect...............................................54
(b) Assignment...................................................54
SECTION 12.10 Governing Law........................................................56
SECTION 12.11 Submission to Jurisdiction...........................................56
(a) Submission to Jurisdiction...................................56
(b) No Limitation................................................56
SECTION 12.12 Waiver of Jury Trial.................................................56
SECTION 12.13 Limitation on Liability..............................................56
SECTION 12.14 Confidentiality......................................................57
SECTION 12.15 Entire Agreement.....................................................57
SECTION 12.16 Severability.........................................................57
v.
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SECTION 12.17 Counterparts.........................................................57
SECTION 12.18 Effect of Amendment..................................................58
SECTION 12.19 Certain Transitional Matters.........................................58
SCHEDULES ANNEXES
Attachment A Permitted Receivables Purchase Facility
Annex 1 Pricing Grid
Schedule 1 Revolving Commitments and Pro Rata Shares
Schedule 2 Borrower's Account; Lending Offices; Addresses for Notices
Schedule 8.01(a) Organization and Powers
Schedule 8.01(g) Litigation
Schedule 8.01(h) Environmental Matters
Schedule 8.01(k) Subsidiaries
Schedule 9.04(a) Existing Liens
Schedule 9.04(e) Existing Investments
EXHIBITS
Exhibit A Form of Revolving Note
Exhibit B Form of Term Note
Exhibit C Form of Notice of Borrowing
Exhibit D Form of Compliance Certificate
Exhibit E Form of Opinion of Counsel to the Borrower
Exhibit F Form of Assignment and Acceptance
vi.
AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT
THIS AMENDED AND RESTATED 364-DAY CREDIT AGREEMENT (this
"Agreement"), dated as of September 28, 2001, is made among Cadence Design
Systems, Inc., a Delaware corporation (the "Borrower"), the financial
institutions listed on the signature pages of this Agreement under the heading
"BANKS" (each a "Bank" and, collectively, the "Banks"), Fleet National Bank as
sole-syndication agent hereunder, KeyBank National Association and UBS AG,
Stamford Branch, as co-documentation agents hereunder, and ABN AMRO Bank N.V.,
as administrative agent for the Banks hereunder (in such capacity, the "Agent").
The Borrower has requested the Banks to make revolving loans
to the Borrower in an aggregate principal amount of up to $260,000,000 at any
time outstanding. The Banks are severally willing to make such loans to the
Borrower upon the terms and subject to the conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings:
"ABN AMRO" means ABN AMRO Bank N.V.
"Affiliate" means any Person which, directly or indirectly,
controls, is controlled by or is under common control with another Person. For
purposes of the foregoing, "control," "controlled by" and "under common control
with" with respect to any Person shall mean the possession, directly or
indirectly, of the power (i) to vote 10% or more of the securities having
ordinary voting power of the election of directors of such Person, or (ii) to
direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting securities or by contract or otherwise.
"Agent" has the meaning set forth in the recitals to this
Agreement.
"Agent's Account" means the account of the Agent set forth on
Schedule 2 or such other account as the Agent from time to time shall designate
in a written notice to the Borrower and the Banks.
"Alchemy" means Alchemy Semiconductor, Inc.
"Applicable Fee Amount" means (i) with respect to the
commitment fee payable hereunder, the amount set forth opposite the indicated
Level below the heading "Commitment Fee" in the pricing grid set forth on Annex
I in accordance with the parameters for calculations of such amount also set
forth on Annex I; and (ii) with respect to the utilization fee payable
hereunder, the amount set forth opposite the indicated Level below the heading
"Utilization Fee"
1.
in the pricing grid set forth on Annex I in accordance with the parameters for
calculations of such amount also set forth on Annex I.
"Applicable Margin" means (i) with respect to Base Rate Loans,
0% per annum; and (ii) with respect to Eurodollar Rate Loans, the amount set
forth opposite the indicated Level below the heading "Eurodollar Rate Spread" in
the pricing grid set forth on Annex I in accordance with the parameters for
calculations of such amounts also set forth on Annex I.
"Assignment and Acceptance" has the meaning set forth in
Section 11.02(a).
"Bank" and "Banks" each has the meaning set forth in the
recitals to this Agreement.
"Bankruptcy Code" means Title 11 of the United States Code
entitled "Bankruptcy."
"Base Rate" means for any day the higher of: (i) the Federal
Funds Rate, plus 1/2 of 1% per annum, and (ii) the prime commercial lending rate
of ABN AMRO as announced from time to time at its Chicago, Illinois, office.
Each change in the interest rate on the Loans or other Obligations bearing
interest at the Base Rate based on a change in the Base Rate shall be effective
as of the effective date of such change in the Base Rate.
"Base Rate Loan" means a Loan bearing interest at a rate
determined by reference to the Base Rate.
"Borrower" has the meaning set forth in the recitals to this
Agreement.
"Borrower's Account" means the account of the Borrower set
forth on Schedule 2, or such other account as the Borrower from time to time
shall designate in a written notice to the Agent.
"Borrowing" means a borrowing consisting of simultaneous Loans
made at any one time by the Borrower from the Banks pursuant to Article II.
"Business Day" means a day (i) other than Saturday or Sunday,
(ii) on which commercial banks are open for business in Chicago, Illinois and
New York, New York, and (iii) if the applicable Business Day relates to any
Eurodollar Rate Loan, that is a Eurodollar Business Day.
"Capital Lease" means, for any Person, any lease of property
(whether real, personal or mixed) which, in accordance with GAAP, would, at the
time a determination is made, be required to be recorded as a capital lease in
respect of which such Person is liable as lessee.
"Closing Date" means the date on which all conditions
precedent set forth in Section 7.01 are satisfied or waived by all Banks (or, in
the case of Section 7.01(a), waived by the Person entitled to receive such
payment).
2.
"Compliance Certificate" means a certificate of a Responsible
Officer of the Borrower, in substantially the form of Exhibit D, with such
changes thereto as the Agent or any Bank may from time to time reasonably
request.
"Consolidated Cash Flow" means, as of any date of
determination for the 12-month period ended on such date, Consolidated Net
Income for such period plus depreciation expense, amortization expense and other
non-cash expenses (including write-offs of acquired in-process research and
development costs) which were deducted in determining Consolidated Net Income,
of the Borrower and its Subsidiaries on a consolidated basis, as determined in
accordance with GAAP.
"Consolidated EBITDA" means, as of any date of determination
for the 12-month period ended on such date, Consolidated Net Income plus
Consolidated Interest Expense plus income tax expense plus depreciation expense,
amortization expense and all other non-cash expenses (including write-offs of
acquired in-process research and development costs) which were deducted in
determining Consolidated Net Income, plus the quarterly increase in product
license subscription bookings for any quarter included in such 12 month period
ending on or prior to December 30, 2000, to the extent not included or reflected
in Consolidated Net Income, in each case, of the Borrower and its Subsidiaries
on a consolidated basis, as determined in accordance with GAAP.
"Consolidated Interest Expense" means, for any period,
interest expense (including that attributable to Capital Leases) of the Borrower
and its Subsidiaries on a consolidated basis, including all commissions,
discounts and other fees and charges owed with respect to standby letters of
credit, as determined in accordance with GAAP.
"Consolidated Net Income" means, for any period, the net
income of the Borrower and its Subsidiaries on a consolidated basis for such
period taken as a single accounting period, as determined in accordance with
GAAP.
"Consolidated Tangible Net Worth" means, as of any date of
determination, Consolidated Total Assets minus Consolidated Total Liabilities;
provided, however, that there shall be excluded from Consolidated Total Assets
the following: (i) all assets which would be classified as intangible assets in
accordance with GAAP, including goodwill, organizational expense, research and
development expense, patent applications, patents, trademarks, trade names,
brands, copyrights, trade secrets, customer lists, licenses, franchises and
covenants not to compete; and (ii) all treasury stock.
"Consolidated Total Assets" means, as of any date of
determination, the total assets of the Borrower and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Consolidated Total Liabilities" means, as of any date of
determination, the total liabilities of the Borrower and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Default" means an Event of Default or an event or condition
which with notice or lapse of time or both would constitute an Event of Default.
3.
"Departing Bank" means any "Bank" under and as defined in the
Existing Credit Agreement that will not continue as a Bank under this Agreement.
"Dollars" and the sign "$" each means lawful money of the
United States.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $5,000,000,000, (ii) a commercial bank organized
under the laws of any other country which is a member of the OECD, or a
political subdivision of any such country, and having a combined capital and
surplus of at least $5,000,000,000, provided that such bank is acting through a
branch or agency located in the United States and licensed by the United States
or any state thereof; and (iii) a Person that is primarily engaged in the
business of commercial banking and that is (a) a Subsidiary of a Bank, (b) a
Subsidiary of a Person of which a Bank is a Subsidiary, or (c) a Person of which
a Bank is a Subsidiary.
"Environmental Laws" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directives, requests, licenses, authorizations
and permits of, and agreements with (including consent decrees), any
Governmental Authorities, in each case relating to or imposing liability or
standards of conduct concerning public health, safety and environmental
protection matters, including the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, the Clean Air Act, the Federal Water
Pollution Control Act of 1972, the Solid Waste Disposal Act, the Federal
Resource Conservation and Recovery Act, the Toxic Substances Control Act, the
Emergency Planning and Community Right-to-Know Act, the California Hazardous
Waste Control Law, the California Solid Waste Management, Resource Recovery and
Recycling Act, the California Water Code and the California Health and Safety
Code.
"ERISA" means the Employee Retirement Income Security Act of
1974, including (unless the context otherwise requires) any rules or regulations
promulgated thereunder.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which is under common control with the Borrower within the meaning
of Section 4001(a)(14) of ERISA and Sections 414(b), (c) and (m) of the Internal
Revenue Code.
"Eurodollar Business Day" means a Business Day on which
dealings in Dollar deposits are carried on in the London interbank market.
"Eurodollar Rate" means for each Interest Period for each
Eurodollar Rate Loan the rate per annum (rounded upward, if necessary, to the
nearest 1/100 of 1%) determined by the Agent pursuant to the following formula:
Eurodollar Rate = Interbank Rate
------------------------------------------------
100% - Eurodollar Reserve Percentage
The Eurodollar Rate shall be adjusted automatically as of the effective date of
any change in the Eurodollar Reserve Percentage.
4.
"Eurodollar Rate Loan" means a Loan bearing interest at a rate
determined by reference to the Eurodollar Rate.
"Eurodollar Reference Bank" means ABN AMRO, subject to the
provisions of Section 3.06.
"Eurodollar Reserve Percentage" means the maximum reserve
requirement percentage (including any ordinary, supplemental, marginal and
emergency reserves), if any, as determined by the Agent, then applicable under
Regulation D in respect of Eurocurrency funding (currently referred to as
"Eurocurrency Liabilities") of a member bank in the Federal Reserve System with
deposits exceeding $1,000,000,000.
"Event of Default" has the meaning set forth in Section 10.01.
"Existing Credit Agreement" means that certain $250,000,000
364-Day Credit Agreement, dated as of September 29, 2000, among the Borrower,
the lenders party thereto and ABN AMRO, as administrative agent, as amended.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Fee Letter" means the fee letter dated September 4, 2001 by
and between the Borrower and the Agent.
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upward, if necessary, to the nearest 1/100 of 1%), as determined by the
Agent, equal to 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 for any day of determination (or if such day of
determination is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Fixed Charge Coverage Ratio" has the meaning specified in
Section 9.02(c).
"Funded Debt" of any Person means, without duplication, (a)
all interest-bearing Indebtedness of such Person (whether on- or off-balance
sheet), (b) all obligations of such Person in respect of any letter of credit,
and (c) all obligations of such Person with respect to leases which are or
should be capitalized on the balance sheet of such Person in accordance with
GAAP. Notwithstanding the foregoing, for purposes of Section 9.02(c) and Section
9.02(e), Funded Debt shall not include (i) any Indebtedness which is
subordinated to the Obligations on terms and conditions satisfactory to the
Agent and the Majority Banks in their reasonable discretion and for which no
principal payment is due before the 366th day after the Term Loan Maturity Date,
or (ii) any obligations of such Person under any Permitted Receivables Purchase
Facility.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its principal
functions.
5.
"GAAP" means generally accepted accounting principles in the
U.S. as in effect from time to time.
"Governmental Authority" means any federal, state, local or
other governmental department, commission, board, bureau, agency, central bank,
court, tribunal or other instrumentality or authority, domestic or foreign,
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Guaranty Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of that Person with
respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any property constituting
direct or indirect security therefor, or (ii) to advance or provide funds (a)
for the payment or discharge of any such primary obligation, or (b) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of income or
financial condition of the primary obligor, or (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, (iv) in connection with any synthetic lease or other
similar off balance sheet lease transaction, or (v) otherwise to assure or hold
harmless the holder of any such primary obligation against loss in respect
thereof.
"Hazardous Substances" means any toxic or hazardous
substances, materials, wastes, contaminants or pollutants, including asbestos,
PCBs, petroleum products and byproducts, and any substances defined or listed as
"hazardous substances," "hazardous materials," "hazardous wastes" or "toxic
substances" (or similarly identified), regulated under or forming the basis for
liability under any applicable Environmental Law.
"IRS" means the Internal Revenue Service, or any successor
thereto.
"Indebtedness" means, for any Person: (i) all indebtedness or
other obligations of such Person for borrowed money or for the deferred purchase
price of property or services; (ii) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of property, assets or businesses; (iii) all
indebtedness created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property); (iv)
all obligations under Capital Leases; (v) all reimbursement or other obligations
of such Person under or in respect of letters of credit and bankers acceptances,
and all net obligations in respect of Rate Contracts; (vi) all reimbursement or
other obligations of such Person in respect of any bank guaranties, shipside
bonds, surety bonds and similar instruments issued for the account of such
Person or as to which such Person is otherwise liable for reimbursement of
drawings or payments; (vii) all Guaranty Obligations; (viii) all indebtedness in
respect of any synthetic lease or other similar off balance sheet lease
transaction; and (ix) all indebtedness of another Person secured by any Lien
upon or in property owned by the Person for whom Indebtedness is being
determined, whether or not such Person has assumed or become liable for the
payment of such indebtedness of such other Person. For all
6.
purposes of this Agreement, the Indebtedness of any Person shall include all
recourse Indebtedness of any partnership or joint venture or limited liability
company in which such Person is a general partner or a joint venturer or a
member.
"Insolvency Proceeding" means (i) any case, action or
proceeding before any court or other Governmental Authority relating to
bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (ii) any general assignment for the benefit
of creditors, composition, marshalling of assets for creditors, or other,
similar arrangement in respect of its creditors generally or any substantial
portion of its creditors, in each case undertaken under U.S. Federal, state or
foreign law, including the Bankruptcy Code.
"Interbank Rate" means the rate per annum determined by the
Agent, on the basis of quotations furnished to it by the Eurodollar Reference
Bank, to be the average (rounded upward, if necessary, to the nearest 1/16 of
1%) of the rates at which deposits in Dollars are offered to the Eurodollar
Reference Bank by prime banks in the London interbank market at approximately
11:00 A.M. (London time), two Eurodollar Business Days before the first day of
such Interest Period, in an amount substantially equal to the proposed
Eurodollar Rate Loan to be made, continued or converted by the Eurodollar
Reference Bank and for a period of time comparable to such Interest Period.
"Interest Payment Date" means a date specified for the payment
of interest pursuant to Section 3.01(c).
"Interest Period" means, with respect to any Eurodollar Rate
Loan, the period determined in accordance with Section 3.01(b) applicable
thereto.
"Internal Revenue Code" means the Internal Revenue Code of
1986, including (unless the context otherwise requires) any rules or regulations
promulgated thereunder.
"Lending Office" has the meaning set forth in Section 2.04.
"Lien" means any mortgage, deed of trust, pledge, security
interest, assignment, deposit arrangement, charge or encumbrance, lien
(statutory or other), or other preferential arrangement (including any
conditional sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing or any agreement
to give any security interest).
"Loan Documents" means this Agreement, the Notes, the Fee
Letter and all other certificates, documents, agreements and instruments
delivered to the Agent and the Banks under or in connection with this Agreement.
"Loans" means the Revolving Loans and the Term Loans.
"Majority Banks" means at any time Banks holding at least 51%
of the then aggregate unpaid principal amount of the loans, or, if no such
principal amount is then outstanding, Banks having at least 51% of the aggregate
Revolving Commitments.
7.
"Material Adverse Effect" means any event, matter, condition
or circumstance which has or would reasonably be expected to have a material
adverse effect on the business, properties, results of operations or condition
(financial or otherwise) of the Borrower and its Subsidiaries taken as a whole.
"Material Subsidiary" means any Subsidiary the total assets of
which constitute 20% or more of Consolidated Total Assets, measured as of the
last day of the then most recent fiscal quarter.
"Minimum Amount" has the meaning set forth in Section 2.06.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Sections 3(37) and 4001(a)(3) of ERISA.
"Multi-Year Commitments" means the commitments of the lenders
party to the Multi-Year Credit Agreement to make loans to the Borrower, as
provided therein.
"Multi-Year Credit Agreement" means that certain Credit
Agreement dated as of September 29, 2000, as amended pursuant to that certain
First Amendment to Credit Agreement dated as of September 28, 2001, among the
Borrower, the lenders party thereto and ABN AMRO, as administrative agent, as
the same may be amended, restated, supplemented or otherwise modified in
accordance with its terms.
"Net Cash Proceeds" means when used in respect of any issuance
of any debt or equity securities of the Borrower or any Subsidiary, the gross
proceeds received by the Borrower or such Subsidiary from such issuance less all
direct costs and expenses incurred or to be incurred, and all federal, state,
local and foreign taxes assessed or to be assessed, in connection therewith.
"Notes" means the Revolving Notes and the Term Notes.
"Notice" means a Notice of Borrowing, a Notice of Conversion
or Continuation or a Notice of Prepayment.
"Notice of Borrowing" has the meaning set forth in Section
2.02(a).
"Notice of Conversion or Continuation" has the meaning set
forth in Section 3.05(c).
"Notice of Prepayment" has the meaning set forth in Section
4.03.
"Obligations" means the indebtedness, liabilities and other
obligations of the Borrower to the Agent or any Bank under or in connection with
the Loan Documents, including all Loans, all interest accrued thereon, all fees
due under this Agreement and all other amounts payable by the Borrower to the
Agent or any Bank thereunder or in connection therewith, whether now or
hereafter existing or arising, and whether due or to become due, absolute or
contingent, liquidated or unliquidated, determined or undetermined.
8.
"OECD" means the Organization for Economic Cooperation and
Development.
"Operating Lease" means, for any Person, any lease of any
property of any kind by that Person as lessee which is not a Capital Lease.
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Pension Plan" means any employee pension benefit plan covered
by Title IV of ERISA (other than a Multiemployer Plan) that is maintained for
employees of the Borrower or any ERISA Affiliate or with regard to which the
Borrower or an ERISA Affiliate is a contributing sponsor within the meaning of
Sections 4001(a)(13) or 4069 of ERISA.
"Permitted Investments" means, in respect of the Borrower or
any Subsidiary, short-term investment grade debt securities of any type
authorized from time to time under an investment policy for short-term cash
investments approved by the Borrower's board of directors or such Subsidiary's
board of directors, as the case may be.
"Permitted Liens" means:
(i) Liens in favor of the Banks or the Agent for the
benefit of the Banks to secure the Obligations;
(ii) the existing Liens listed in Schedule 9.04(a);
(iii) Liens for taxes, fees, assessments or other
governmental charges or levies, either not delinquent or being
contested in good faith by appropriate proceedings and which are
adequately reserved for in accordance with GAAP;
(iv) Liens of materialmen, mechanics, warehousemen,
carriers or employees or other like Liens arising in the ordinary
course of business and securing obligations either not delinquent or
being contested in good faith by appropriate proceedings which are
adequately reserved for in accordance with GAAP and which do not in the
aggregate materially impair the use or value of the property or risk
the loss or forfeiture of title thereto;
(v) Liens consisting of deposits or pledges to secure
the payment of worker's compensation, unemployment insurance or other
social security benefits or obligations, or to secure the performance
of bids, trade contracts, leases (other than Capital Leases), public or
statutory obligations, surety or appeal bonds or other obligations of a
like nature incurred in the ordinary course of business (other than for
indebtedness or any Liens arising under ERISA);
(vi) easements, rights of way, servitudes or zoning
or building restrictions and other minor encumbrances on real property
and irregularities in the title to such property which do not in the
aggregate materially impair the use or value of such property or risk
the loss or forfeiture of title thereto;
9.
(vii) statutory landlord's Liens under leases to
which the Borrower or any of its Subsidiaries is a party;
(viii) Liens arising solely by virtue of any
statutory or common law provision relating to banker's liens, rights of
set-off or similar rights and remedies as to deposit accounts or other
funds maintained with a creditor depository institution; provided that
(i) such deposit account is not a dedicated cash collateral account and
is not subject to restrictions against access by the Borrower in excess
of those set forth by regulations promulgated by the FRB, and (ii) such
deposit account is not intended by the Borrower or any Subsidiary to
provide collateral to the depository institution;
(ix) Liens (a) upon or in any property acquired or
held by the Borrower or any of its Subsidiaries to secure the purchase
price of such property or Indebtedness incurred solely for the purpose
of financing the acquisition of such property, or (b) existing on such
property at the time of its acquisition, provided that the Lien is
confined solely to the property so acquired and improvements thereon;
(x) Liens on assets of Persons which become
Subsidiaries of the Borrower after the date hereof, provided that such
Liens existed at the time any such Persons became Subsidiaries of the
Borrower and were not created in anticipation thereof;
(xi) Liens on Receivables and Receivables Related
Assets in connection with any Permitted Receivables Purchase Facility;
(xii) Leases or subleases and licenses and
sublicenses granted to others in the ordinary course of business and
not interfering in any material respect with the business of the
Borrower and any interest or title of a lessor or licensor under any
lease or license;
(xiii) Liens on equipment leased by the Borrower
pursuant to an operating lease in the ordinary course of business
(including proceeds thereof and accessions thereto) incurred solely for
the purpose of financing the lease of such equipment (including Liens
arising from UCC financing statements regarding leases permitted by
this Agreement);
(xiv) Liens arising from judgments, decrees or
attachments to the extent and only so long as such judgment, decree or
attachment has not caused or resulted in an Event of Default;
(xv) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment of customs
duties in connection with the importation of goods;
(xvi) Liens incurred in connection with the
extension, renewal, refunding, refinancing, modification, amendment or
restatement of the Indebtedness secured by Liens of the type described
in clauses (i) through (xv) above, provided that any extension, renewal
or replacement Lien shall be limited to the property encumbered
10.
by the existing Lien, the principal amount of Indebtedness being
extended, renewed or refinanced does not increase and such Lien
otherwise remains a Permitted Lien under clauses (i) through (xv)
above; and
(xvii) Liens not otherwise permitted hereunder
securing Indebtedness in an aggregate principal amount not to exceed
15% of Consolidated Tangible Net Worth, measured as of the last day of
the then most recent fiscal quarter, at any time outstanding.
"Permitted Receivables Purchase Facility" shall mean any
receivables sales, financing or securitization programs now or hereafter entered
into by the Borrower or any of its Subsidiaries, in each case for the purpose of
financing Receivables, including, without limitation, the facilities identified
on Attachment A hereto, in each case, as amended, restated or supplemented from
time to time.
"Person" means an individual, corporation, partnership,
limited liability company, joint venture, trust, unincorporated organization or
any other entity of whatever nature or any Governmental Authority.
"Plan" means any employee pension benefit plan as defined in
Section 3(2) of ERISA (including any Multiemployer Plan) and any employee
welfare benefit plan, as defined in Section 3(1) of ERISA (including any plan
providing benefits to former employees or their survivors).
"Premises" means any and all real property, including all
buildings and improvements now or hereafter located thereon and all
appurtenances thereto, now or hereafter owned, leased, occupied or used by the
Borrower and its Subsidiaries.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth decimal
place) at such time of such Bank's Revolving Commitment divided by the combined
Revolving Commitments of all Banks (or, if all Revolving Commitments have been
terminated, the aggregate principal amount of such Bank's Loans divided by the
aggregate principal amount of the Loans then held by all Banks). The initial Pro
Rata Share of each Bank is set forth opposite such Bank's name in Schedule 1
under the heading "Pro Rata Share."
"Rate Contracts" means interest rate swaps, caps, floors and
collars, currency swaps, or other similar financial products designed to provide
protection against fluctuations in interest, currency or exchange rates.
"Receivables" means any rights to payment for license fees,
whether in the form of accounts receivable, general intangibles, instruments,
chattel paper or otherwise.
"Receivables Related Assets" means (a) any rights arising
under the documentation governing or relating to Receivables which are the
subject of a Permitted Receivables Purchase Facility, including, without
limitation, rights in respect of Liens securing such Receivables, (b) any
proceeds of such Receivables and any lockboxes or accounts in which such
proceeds are deposited, (c) spread accounts and other similar accounts, and any
amounts on deposit therein, established in connection with any Permitted
Receivables Purchase Facility,
11.
(d) any warranty, indemnity, dilution and other intercompany claim arising out
of any Permitted Receivables Purchase Facility, and (e) other assets which are
customarily transferred or in respect of which security interests are
customarily granted in connection with factoring or asset securitization
transactions involving Receivables.
"Regulation D" means Regulation D of the FRB.
"Regulatory Change" has the meaning set forth in Section 5.03.
"Related Person" has the meaning set forth in Section 11.06.
"Required Notice Date" has the meaning set forth in Section
2.07.
"Responsible Officer" means, with respect to any Person, the
chief executive officer, the president, the chief financial officer, the vice
president of corporate finance, the treasurer or the controller of such Person,
or any other senior officer of such Person having substantially the same
authority and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer, the treasurer or the controller of any
such Person, or any other senior officer of such Person involved principally in
the financial administration or controllership function of such Person and
having substantially the same authority and responsibility.
"Revolving Commitment," as to each Bank, has the meaning
specified in subsection 2.01(a).
"Revolving Loan" has the meaning specified in subsection
2.01(a).
"Revolving Note" means a promissory note substantially in the
form of Exhibit A.
"Revolving Termination Date" means the earlier to occur of:
(a) the date which is 364 calendar days after the Closing Date, as such date may
be extended in accordance with subsection 4.01(c); and (b) the date on which the
Revolving Commitments terminate in accordance with the provisions of this
Agreement.
"SEC" means the Securities and Exchange Commission, or any
successor thereto.
"Xxxxx Avenue Campus" means the real property, taken either in
whole or any part thereof, consisting of approximately 50.5 acres of land and 10
buildings that total approximately 778,000 square feet and is located on both
the east and west sides of Xxxxx Avenue, in San Jose, California. Specific
street addresses for the property are: 535, 545, 555, 000 Xxxxx Xxxx Xxxxxxx,
0000 Xxxxx Xxxxxx (which consists of five buildings and entitled land for a
sixth building), and 0000 Xxxxx Xxxxxx.
"Solvent" means, as to any Person at any time, that (i) the
fair value of the property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for purposes
of Section 101(31) of the Bankruptcy Code; (ii) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability
12.
to pay as such debts and liabilities mature; and (iii) such Person is not
engaged in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute unreasonably
small capital.
"SpinCircuit" means SpinCircuit, Inc.
"Subsidiary" means, as to any Person, any corporation,
association, partnership, joint venture or other business entity of which more
than 50% of the voting stock or other equity interest is owned directly or
indirectly by such Person or one or more of the other Subsidiaries of such
Person or a combination thereof. Unless the context otherwise clearly requires,
references to a "Subsidiary" shall mean a Subsidiary of the Borrower.
"Swap Termination Value" means, in respect of any one or more
Rate Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Rate Contracts, (i) for any date on or after
the date such Rate Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (ii) for any
date prior to the date referenced in clause (i), the amount(s) determined as the
xxxx-to-market value(s) for such Rate Contracts, as determined by the Borrower
based upon one or more mid-market or other readily available quotations provided
by any recognized dealer in such Rate Contracts (which may include any Bank).
"Tality IPO" means the initial public offering of the
Borrower's design-services operation pursuant to terms and conditions
substantially consistent with those disclosed in the Borrower's Form S-1 filed
with the Securities Exchange Commission on July 17, 2000 (registration number
333-41552).
"Taxes" has the meaning set forth in Section 6.03.
"Term Loan" has the meaning specified in subsection 2.01(b).
"Term Loan Maturity Date" means September 29, 2003.
"Term Loan Commitment" has the meaning set forth in Section
2.01(b).
"Term Note" means a promissory note substantially in the form
of Exhibit B.
"Termination Event" means any of the following:
(i) with respect to a Pension Plan, a reportable
event described in Section 4043 of ERISA and the regulations issued
thereunder (other than a reportable event not subject to the provisions
for 30-day notice to the PBGC under such regulations);
(ii) the withdrawal of the Borrower or an ERISA
Affiliate from a Pension Plan during a plan year in which the
withdrawing employer was a "substantial employer" as defined in Section
4001(a)(2) or 4062(e) of ERISA;
13.
(iii) the taking of any actions (including the filing
of a notice of intent to terminate) by the Borrower, an ERISA
Affiliate, the PBGC, a Plan Administrator, or any other Person to
terminate a Pension Plan or the treatment of a Plan amendment as a
termination of a Pension Plan under Section 4041 of ERISA;
(iv) any other event or condition which might
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Pension Plan; or
(v) the complete or partial withdrawal of the
Borrower or an ERISA Affiliate from a Multiemployer Plan.
"UCC" means the Uniform Commercial Code of the jurisdiction
the law of which governs the Loan Document in which such term is used or the
attachment, perfection or priority of the Lien on any collateral.
"Unfunded Accrued Benefits" means the excess of a Pension
Plan's accrued benefits, as defined in Section 3(23) of ERISA, over the current
value of that Plan's assets, as defined in Section 3(26) of ERISA.
"United States" and "U.S." each means the United States of
America.
"Venture Funds" means, collectively, Telos Venture Partners,
L.P. and Telos Venture Partners II, L.P.
SECTION 1.02 Accounting Principles.
(a) Accounting Terms. Unless otherwise defined or the
context otherwise requires, all accounting terms not expressly defined herein
shall be construed, and all accounting determinations and computations required
under the Loan Documents shall be made, in accordance with GAAP, consistently
applied.
(b) GAAP Changes. If GAAP shall have been modified after
the Closing Date and the application of such modified GAAP shall have a material
effect on any financial computations hereunder (including the computations
required for the purpose of determining compliance with the covenants set forth
in Section 9.02), then such computations shall be made and the financial
statements, certificates and reports due hereunder shall be prepared, and all
accounting terms not otherwise defined herein shall be construed, in accordance
with GAAP, as in effect prior to such modification, unless and until the
Majority Banks and the Borrower shall have agreed upon the terms of the
application of such modified GAAP which agreement shall not be unreasonably
withheld.
(c) "Fiscal Year" and "Fiscal Quarter". References herein to
"fiscal year" and "fiscal quarter" refer to such fiscal periods of the Borrower.
SECTION 1.03 Interpretation. In the Loan Documents, except to
the extent the context otherwise requires:
14.
(i) Any reference to an Article, a Section, a
Schedule or an Exhibit is a reference to an article or section thereof,
or a schedule or an exhibit thereto, respectively, and to a subsection
or a clause is, unless otherwise stated, a reference to a subsection or
a clause of the Section or subsection in which the reference appears.
(ii) The words "hereof," "herein," "hereto,"
"hereunder" and the like mean and refer to this Agreement or any other
Loan Document as a whole and not merely to the specific Article,
Section, subsection, paragraph or clause in which the respective word
appears.
(iii) The meaning of defined terms shall be equally
applicable to both the singular and plural forms of the terms defined.
(iv) The words "including," "includes" and "include"
shall be deemed to be followed by the words "without limitation."
(v) References to agreements and other contractual
instruments shall be deemed to include all subsequent amendments and
other modifications thereto, but only to the extent such amendments and
other modifications are not prohibited by the terms of the Loan
Documents.
(vi) References to statutes or regulations are to be
construed as including all statutory and regulatory provisions
consolidating, amending or replacing the statute or regulation referred
to.
(vii) Any table of contents, captions and headings
are for convenience of reference only and shall not affect the
construction of this Agreement or any other Loan Document.
(viii) In the computation of periods of time from a
specified date to a later specified date, the word "from" means "from
and including"; the words "to" and "until" each mean "to but
excluding"; and the word "through" means "to and including."
(ix) The use of a word of any gender shall include
each of the masculine, feminine and neuter genders.
(x) This Agreement and the other Loan Documents are
the result of negotiations among the Agent, the Borrower and the other
parties, have been reviewed by counsel to the Agent, the Borrower and
such other parties, and are the products of all parties. Accordingly,
they shall not be construed against the Banks or the Agent merely
because of the Agent's or Banks' involvement in their preparation.
15.
ARTICLE II
THE LOANS
SECTION 2.01 Amounts and Terms of Commitments.
(a) The Revolving Credit. Each Bank severally agrees, on
the terms and conditions set forth herein, to make loans to the Borrower (each
such loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth opposite such
Bank's name on Schedule 1 under the heading "Revolving Commitment" (such amount,
as the same may be reduced under Section 4.01 or reduced or increased as a
result of one or more assignments under Section 12.09, such Bank's "Revolving
Commitment"); provided, however, that, after giving effect to any Borrowing of
Revolving Loans, the aggregate principal amount of all outstanding Revolving
Loans shall not at any time exceed the combined Revolving Commitments; and
provided further that no Borrowings of Revolving Loans shall be permitted
hereunder at any time that any portion of the Multi-Year Commitments remains
unused. Within the limits of each Bank's Revolving Commitment, and subject to
the other terms and conditions hereof, the Borrower may borrow under this
subsection 2.01(a), prepay under Section 4.03 and reborrow under this subsection
2.01(a).
(b) The Term Loans. Each Bank severally agrees, on the
terms and conditions set forth herein, to make a single term loan (each a "Term
Loan" and, collectively, the "Term Loans") to the Borrower on the Revolving
Termination Date in a principal amount up to but not exceeding such Bank's
Revolving Commitment (the "Term Loan Commitment"); provided, however, that no
Borrowings of Term Loans shall be permitted hereunder at any time that any
portion of the Multi-Year Commitments remain unused. No Term Loans shall be made
after the Revolving Termination Date, and any portion of the Revolving
Commitments not borrowed as Term Loans on the Revolving Termination Date may not
be borrowed thereafter. Any amount of the Term Loans repaid may not be
reborrowed.
SECTION 2.02 Borrowing Procedure.
(a) Notice to the Agent. Each Borrowing shall be made on a
Business Day upon written or telephonic notice (in the latter case to be
confirmed promptly in writing) from the Borrower to the Agent, which notice
shall be received by the Agent not later than 2:00 P.M. (New York City time) on
the Required Notice Date. Each such notice, except as provided in Section 5.01
and 5.04, shall be irrevocable and binding on the Borrower, shall be in
substantially the form of Exhibit C (a "Notice of Borrowing") and shall specify
whether the Borrowing consists of Base Rate Loans or Eurodollar Rate Loans, and
whether such Borrowing shall be of Revolving Loans or Term Loans, and shall
contain the other information required thereby.
(b) Notice to the Banks. The Agent shall give each Bank prompt
notice by telephone (confirmed promptly in writing) or by facsimile of each
Borrowing, specifying the information contained in the Borrower's Notice and
such Bank's Pro Rata Share of the Borrowing. On the date of each Borrowing, each
Bank shall make available such Bank's Pro Rata Share of such Borrowing, in same
day or immediately available funds, to the Agent for the Agent's Account, not
later than 3:00 P.M. (New York City time). Upon fulfillment of the
16.
applicable conditions set forth in Article VII and after receipt by the Agent of
any such funds, and unless other payment instructions are provided by the
Borrower, the Agent shall make such funds available to the Borrower by crediting
the Borrower's Account with same day or immediately available funds on such
Borrowing date.
SECTION 2.03 Non-Receipt of Funds. Unless the Agent shall have
received notice from a Bank prior to the date of any Borrowing that such Bank
shall not make available to the Agent such Bank's Pro Rata Share of such
Borrowing, the Agent may assume that such Bank has made such portion available
to the Agent on the date of such Borrowing in accordance with Section 2.02(b)
and the Agent may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the extent such Bank
shall not have so made such Pro Rata Share available to the Agent, and the Agent
in such circumstances shall have made available to the Borrower such amount,
such Bank agrees to repay to the Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Agent, at the Federal Funds Rate. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such Bank's Loan as
part of such Borrowing for purposes of this Agreement. If such amount is not
made available by such Bank to the Agent on the Business Day following the
Borrowing date, the Agent shall notify the Borrower of such failure to fund and,
upon demand by the Agent, the Borrower shall pay such amount to the Agent for
the Agent's Account, together with interest thereon for each day elapsed since
the date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
SECTION 2.04 Lending Offices. The Loans made by each Bank may
be made from and maintained at such offices of such Bank (each a "Lending
Office") as such Bank may from time to time designate (whether or not such
office is specified on Schedule 2). A Bank shall not elect a Lending Office
that, at the time of making such election, increases the amounts which would
have been payable by the Borrower to such Bank under this Agreement in the
absence of such election. With respect to Eurodollar Rate Loans made from and
maintained at any Bank's non-U.S. offices, the obligation of the Borrower to
repay such Eurodollar Rate Loans shall nevertheless be to such Bank and shall,
for all purposes of this Agreement (including for purposes of the definition of
the term "Majority Banks") be deemed made or maintained by it, for the account
of any such office.
SECTION 2.05 Evidence of Indebtedness. The Loans made by each
Bank shall be evidenced by one or more loan accounts maintained by such Bank in
accordance with its usual practices. The loan accounts maintained by the Agent
and each such Bank shall be rebuttable presumptive evidence of the amount of the
Loans made by such Bank to the Borrower and the interest and payments thereon.
Any failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Borrower hereunder to pay any amount
owing with respect to the Loans. At the request of any Bank, as additional
evidence of the Indebtedness of the Borrower to such Bank resulting from the
Loans made by such Bank, the Borrower shall execute and deliver for account of
such Bank pursuant to Article VII Notes setting forth such Bank's Revolving
Commitment as the maximum principal amount thereof and, if the Term Loans are
borrowed on the Revolving Termination Date under subsection 2.01(b), Notes
setting forth the principal amount of the Term Loans so made by such Bank.
17.
SECTION 2.06 Minimum Amounts. Any Borrowing, conversion,
continuation, Revolving Commitment reduction or prepayment of Loans hereunder
shall be in an aggregate amount determined as follows (each such specified
amount a "Minimum Amount"): (i) any Borrowing or partial prepayment of Base Rate
Loans shall be in the amount of $250,000 or a greater amount which is an
integral multiple of $50,000; (ii) any Borrowing, continuation or partial
prepayment of, or conversion into, Eurodollar Rate Loans shall be in the amount
of $2,000,000 or a greater amount which is an integral multiple of $100,000; and
(iii) any partial Revolving Commitment reduction under Section 4.01(a) shall be
in the amount of $5,000,000 or a greater amount which is an integral multiple of
$5,000,000.
SECTION 2.07 Required Notice. Any Notice hereunder shall be
given not later than the date determined as follows (each such specified date a
"Required Notice Date"): (i) any Notice with respect to a Borrowing of, or
conversion into, Base Rate Loans shall be given not later than the date of the
proposed borrowing or conversion; (ii) any Notice with respect to any Borrowing
or continuation of, or conversion into, Eurodollar Rate Loans shall be given at
least three Eurodollar Business Days prior to the date of the proposed
Borrowing, conversion or continuation; (iii) any Notice with respect to any
prepayment under Section 4.03(a) shall be given at least one Business Day prior
to the date of the proposed prepayment, in the case of Base Rate Loans, and at
least three Eurodollar Business Days prior to the date of the proposed
prepayment, in the case of Eurodollar Rate Loans; and (iv) any Notice with
respect to any Revolving Commitment reduction or termination under Section
4.01(a) shall be given at least five Business Days prior to the proposed
reduction or termination date.
ARTICLE III
INTEREST AND FEES; CONVERSION OR CONTINUATION
SECTION 3.01 Interest.
(a) Interest Rate. Subject to Section 3.02, the Borrower
shall pay interest on the unpaid principal amount of each Loan from the date of
such Loan until such principal amount shall be paid in full, at the following
rates:
(i) during such periods as such Loan is a Base Rate
Loan, at a rate per annum equal at all times to the Base Rate plus the
Applicable Margin; and
(ii) during such periods as such Loan is a Eurodollar
Rate Loan, at a rate per annum equal at all times during each Interest
Period for such Eurodollar Rate Loan to the Eurodollar Rate for such
Interest Period plus the Applicable Margin.
(b) Interest Periods. The initial and each subsequent
Interest Period for Eurodollar Rate Loans shall be a period of one, two, three
or six months. The determination of Interest Periods shall be subject to the
following provisions:
(A) in the case of immediately successive
Interest Periods, each successive Interest Period shall
commence on the day on which the next preceding Interest
Period expires;
18.
(B) if any Interest Period pertaining to an
Eurodollar Rate Loan would otherwise end on a day which is not
a Business Day, that 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;
(C) no Interest Period shall extend beyond
(1) the Revolving Termination Date with respect to any
Revolving Loan, and (2) the Term Loan Maturity Date with
respect to any Term Loan;
(D) any Interest Period pertaining to a
Eurodollar Rate Loan 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 ending calendar month of such
Interest Period) shall end on the last Business Day of the
ending calendar month of such Interest Period;
(E) there shall be no more than ten Interest
Periods in effect at any one time.
(c) Interest Payment Dates. Subject to Section 3.02, interest
on the Loans shall be payable in arrears at the following times:
(i) interest on each Base Rate Loan shall be payable
quarterly in arrears on the last Business Day in each calendar quarter,
on the date of any prepayment or conversion of any such Base Rate Loan,
and at maturity;
(ii) interest on each Eurodollar Rate Loan shall be
payable on the last day of each Interest Period for such Eurodollar
Rate Loan, provided that (a) in the case of any such Interest Period
which is greater than three months, interest on such Eurodollar Rate
Loan shall be payable on each date that is three months, or any
integral multiple thereof, after the beginning of such Interest Period,
and on the last day of such Interest Period, and (b) if any prepayment,
conversion, or continuation is effected other than on the last day of
such Interest Period, accrued interest on such Eurodollar Rate Loan
shall be due on such prepayment, conversion or continuation date as to
the principal amount of such Eurodollar Rate Loan prepaid, converted or
continued plus all amounts required under Section 5.02.
(d) Notice to the Borrower and the Banks. Each
determination by the Agent hereunder of a rate of interest and of any change
therein, including any changes in (i) the Applicable Margin, (ii) the Base Rate
during any periods in which Base Rate Loans shall be outstanding, and (iii) the
Eurodollar Reserve Percentage (if any) during any periods in which Eurodollar
Rate Loans shall be outstanding, in the absence of manifest error, shall be
conclusive and binding on the parties hereto and shall be promptly notified by
the Agent to the Borrower and the Banks. Such notice shall set forth in
reasonable detail the basis for any such determination or change. The failure of
the Agent to give any such notice specified in this subsection shall not affect
the Borrower's obligation to pay such interest or fees.
19.
SECTION 3.02 Default Rate of Interest. Notwithstanding Section
3.01, in the event that any amount of principal of or interest on any Loan, or
any other amount payable hereunder or under the Loan Documents, is not paid in
full when due (whether at stated maturity, by acceleration or otherwise), the
Borrower shall pay interest on such unpaid principal, interest or other amount,
from the date such amount becomes due until the date such amount is paid in
full, and after as well as before any entry of judgment to the extent permitted
by law, payable on demand, at a rate per annum equal at all times to the Base
Rate plus 2% plus the Applicable Margin in respect of Base Rate Loans.
SECTION 3.03 Fees.
(a) Revolving Commitment Fees. The Borrower agrees to pay
to the Agent for the account of each Bank a commitment fee on the average daily
unused portion of such Bank's Revolving Commitment as in effect from time to
time from the Closing Date until the Revolving Termination Date at a rate per
annum equal to the Applicable Fee Amount, payable quarterly in arrears on the
last Business Day of each calendar quarter (commencing on the first such date
after the Closing Date), and on the earlier of the date such Revolving
Commitment is terminated hereunder and the Revolving Termination Date.
(b) Utilization Fees. The Company shall pay to the Agent for
the account of each Bank a utilization fee on the actual daily utilized portion
of such Bank's Revolving Commitment or Term Loan Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the actual daily utilization for that quarter, as calculated by the
Agent, at a rate per annum equal to the Applicable Fee Amount for each day
during such quarter on which utilization of the combined Revolving Commitments
or Term Loan Commitment under this Agreement plus the utilization of the
combined "Revolving Commitments" under and as defined in the Multi-Year Credit
Agreement equals or exceeds 33% of the combined Revolving Commitments or Term
Loan Commitments under this Agreement plus the combined "Revolving Commitments"
under the Multi-Year Credit Agreement at the close of the Agent's business on
such day (or the close of the Agent's business on the next preceding Business
Day in the case of a Saturday or Sunday or other day not a Business Day). For
purposes of calculating utilization under this Agreement and under the
Multi-Year Credit Agreement, the Revolving Commitments and Term Loan Commitment
under this Agreement and the "Revolving Commitments" under and as defined in the
Multi-Year Agreement, respectively, shall be deemed utilized to the extent of
the aggregate principal amount of the Loans then outstanding hereunder and
thereunder. Such utilization fee shall accrue from and after the Closing Date
and shall be due and payable quarterly in arrears on the last Business Day of
each calendar quarter commencing on the first such date following the Closing
Date; provided that, in connection with any termination of Revolving Commitments
under Section 4.01 of this Agreement, the accrued utilization fee calculated for
the period ending on such date shall also be paid on the date of such
termination; provided further that the Applicable Fee Amount shall be payable
only in respect of the amount of the Revolving Commitments or Term Loan
Commitment utilized under this Agreement, and not on the portion of the
"Revolving Commitments" utilized under the Multi-Year Credit Agreement. The
utilization fees provided in this subsection shall accrue at all times after the
above-mentioned Closing Date.
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(c) Agency Fee. The Borrower agrees to pay to the Agent for
its own account such fee for administrative agency services rendered by it as
specified in the Fee Letter.
(d) Fees Nonrefundable. All fees payable under this Section
3.03 shall be nonrefundable.
SECTION 3.04 Computations. All computations of interest based
upon the Base Rate (including interest accruing based upon the Federal Funds
Rate) shall be made on the basis of a year of 365 or 366 days, as the case may
be, for the actual number of days occurring in the period for which such
interest is payable. All computations of Revolving Commitment fee, the
utilization fee and of interest based upon the Eurodollar Rate shall be made on
the basis of a year of 360 days for the actual number of days occurring in the
period for which such Revolving Commitment fee, utilization fee or interest is
payable, which results in more interest being paid than if computed on the basis
of a 365-day year, and in accordance with the pricing grid set forth in Annex 1.
SECTION 3.05 Conversion or Continuation.
(a) Election. The Borrower may elect (i) to convert all or
any part of (A) outstanding Base Rate Loans into Eurodollar Rate Loans, or (B)
outstanding Eurodollar Rate Loans into Base Rate Loans; or (ii) to continue all
or any part of a Loan with one type of interest rate as such; provided, however,
that if the aggregate amount of Eurodollar Rate Loans in respect of any
Borrowing shall have been reduced, by payment, prepayment, or conversion of part
thereof to be less than $2,000,000, such Eurodollar Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Borrower to continue such Loans as, and convert such Loans into,
Eurodollar Rate Loans, as the case may be, shall terminate. The continued or
converted Base Rate and Eurodollar Rate Loans shall be allocated to the Banks
ratably in accordance with their Pro Rata Shares. Any conversion or continuation
of Eurodollar Rate Loans shall be made on the last day of the current Interest
Period for such Eurodollar Rate Loans. No outstanding Loan may be converted into
or continued as a Eurodollar Rate Loan if any Event of Default has occurred and
is continuing.
(b) Automatic Conversion. On the last day of any Interest
Period for any Eurodollar Rate Loans, such Eurodollar Rate Loans shall, if not
repaid, automatically convert into Base Rate Loans unless the Borrower shall
have made a timely election to continue such Eurodollar Rate Loans as such for
an additional Interest Period or to convert such Eurodollar Rate Loans, in each
case as provided in subsection (a).
(c) Notice to the Agent. The conversion or continuation of
any Loans contemplated by subsection (a) shall be made upon written or
telephonic notice (in the latter case to be confirmed promptly in writing) from
the Borrower to the Agent, which notice shall be received by the Agent not later
than 11:00 A.M. (California time) on the Required Notice Date. Each such notice
(a "Notice of Conversion or Continuation") shall, except as provided in Sections
5.01 and 5.04, be irrevocable and binding on the Borrower, shall refer to this
Agreement and shall specify: (i) the proposed date of the conversion or
continuation, which shall be a Business Day; (ii) the outstanding Loans (or
parts thereof) to be converted into or continued as Base Rate or Eurodollar Rate
Loans; (iii) the aggregate amount of the Loans which are the
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subject of such continuation or conversion, which shall be in a Minimum Amount;
(iv) if the conversion or continuation consists of any Eurodollar Rate Loans,
the duration of the Interest Period with respect thereto; and (v) that no Event
of Default exists hereunder.
(d) Notice to the Banks. The Agent shall give each Bank
prompt notice by telephone (confirmed promptly in writing) or by facsimile of
(i) the proposed conversion or continuation of any Loans, specifying the
information contained in the Borrower's Notice and such Bank's Pro Rata Share
thereof or (ii), if timely notice was not received from the Borrower, the
details of any automatic conversion under subsection (b).
SECTION 3.06 Replacement of Reference Banks. If the Loans of
the Eurodollar Reference Bank are prepaid in full or its Revolving Commitment
shall terminate (otherwise than on termination of all the Revolving
Commitments), or if the Eurodollar Reference Bank transfers its Loans in full to
an unaffiliated Person or otherwise shall cease to be a Bank hereunder, the
Agent shall, in consultation with the Borrower and with the approval of the
Majority Banks, appoint another similarly situated Bank to replace such Bank as
Eurodollar Reference Bank.
SECTION 3.07 Highest Lawful Rate. Anything herein to the
contrary notwithstanding, if during any period for which interest is computed
hereunder, the applicable interest rate, together with all fees, charges and
other payments which are treated as interest under applicable law, as provided
for herein or in any other Loan Document, would exceed the maximum rate of
interest which may be charged, contracted for, reserved, received or collected
by any Bank in connection with this Agreement under applicable law (the "Maximum
Rate"), the Borrower shall not be obligated to pay, and such Bank shall not be
entitled to charge, collect, receive, reserve or take, interest in excess of the
Maximum Rate, and during any such period the interest payable hereunder to such
Bank shall be limited to the Maximum Rate.
ARTICLE IV
REDUCTION OF REVOLVING COMMITMENTS;
REPAYMENT; PREPAYMENT
SECTION 4.01 Reduction or Termination of the Revolving Commitments.
(a) Optional Reduction or Termination. The Borrower may,
upon prior written notice to the Agent delivered not later than the Required
Notice Date, terminate in whole or reduce ratably in part, as of the date
specified by the Borrower in such notice, any then unused portion of the
Revolving Commitments, provided that each partial reduction shall be in a
Minimum Amount.
(b) Mandatory Termination. The Revolving Commitments shall
terminate on the Revolving Termination Date (including such date, if any, that
the Term Loans are made pursuant to subsection 2.01(b), it being understood that
once the Term Loans are made, if at all, the Revolving Commitments of all of the
Banks shall thereupon terminate).
(c) Extension of Revolving Termination Date. Notwithstanding
the preceding subsection 4.01(b), the Borrower may give written notice to the
Banks (through the Agent) no more than 60 days and no less than 30 days prior to
the Revolving Termination Date then in effect that it requests that the Agent
and the Banks extend the Revolving Termination Date for an
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additional 364-day period. Each Bank and the Agent may grant or reject such
request in its sole discretion, and the Borrower acknowledges that there is no
commitment or understanding that the Revolving Termination Date will be
extended. If such request is granted by the Agent and one or more of the Banks,
the Revolving Termination Date then in effect shall be so extended in respect of
the Revolving Commitment of each consenting Bank (but not in respect of the
Revolving Commitments of any non-consenting Banks), subject to such changed
terms and payment of such fee (if any) as shall have been agreed upon by the
Borrower, such consenting Banks and the Agent. Any Bank that does not consent in
writing to an extension request delivered by the Borrower under this subsection
4.01(c) by the date which is 10 days prior to the Revolving Termination Date
then in effect shall be deemed to have rejected such extension request in
respect of its Revolving Commitment. The Revolving Commitment of each
non-consenting Bank under this subsection 4.01(c) shall terminate on the
Revolving Termination Date then in effect, subject to such Bank's obligations
under subsection 2.01(b) on such date (if the Term Loans are made on such date).
The parties agree and acknowledge that effective immediately upon any extension
of the Revolving Termination Date pursuant to this subsection 4.01(c), the
obligation to make Loans hereunder of any Bank that has not consented to such
extension shall be terminated, and such Bank shall immediately thereupon
relinquish its rights and be released from its obligations under this Agreement;
provided, however, that such Bank shall not be deemed to have relinquished any
of such rights or be released from any of such obligations to the extent arising
or accruing prior to such time. In no event shall the Revolving Termination Date
be extended beyond the Term Loan Maturity Date.
(d) [Intentionally Omitted.]
(e) Notice. The Agent shall give each Bank prompt notice
of any termination, reduction or extension of its Revolving Commitments under
this Section 4.01.
(f) Adjustment of Revolving Commitment Fee and Utilization
Fee; No Reinstatement. From the effective date of any reduction or termination
prior to the Revolving Termination Date, the Revolving Commitment fee payable
under Section 3.03(a) and the utilization fee payable under Section 3.03(b)
shall be computed on the basis of the Revolving Commitments as so reduced or
terminated. Once reduced or terminated, the Revolving Commitments may not be
increased or otherwise reinstated.
SECTION 4.02 Repayment of Loans.
(a) Revolving Loans. The Borrower shall repay to the Banks in
full on the Revolving Termination Date the aggregate principal amount of the
Revolving Loans outstanding on such date.
(b) Term Loans. The Borrower shall repay to the Banks the
aggregate principal amount of the Term Loans on the Term Loan Maturity Date.
SECTION 4.03 Prepayments.
(a) Optional Prepayments. Subject to Section 5.02, the
Borrower may, upon prior written notice to the Agent not later than the Required
Notice Date, prepay the outstanding
23.
amount of the Loans in whole or ratably in part, without premium or penalty.
Partial prepayments shall be in Minimum Amounts.
(b) [Intentionally Omitted.]
(c) Notice; Application. The notice given of any prepayment (a
"Notice of Prepayment") shall specify the date and amount of the prepayment and
whether the prepayment is of Base Rate or Eurodollar Rate Loans or a combination
thereof, and if of a combination thereof the amount of the prepayment allocable
to each. Such Notice of Prepayment shall also specify whether the prepayment is
of Revolving Loans or Term Loans. Upon receipt of the Notice of Prepayment the
Agent shall promptly notify each Bank thereof. If the Notice of Prepayment is
given, the Borrower shall make such prepayment and the prepayment amount
specified in such Notice shall be due and payable on the date specified therein,
with accrued interest to such date on the amount prepaid.
ARTICLE V
YIELD PROTECTION AND ILLEGALITY
SECTION 5.01 Inability to Determine Rates. If the Agent shall
determine that adequate and reasonable means do not exist to ascertain the
Eurodollar Rate, or the Majority Banks shall determine that the Eurodollar Rate
does not accurately reflect the cost to the Banks of making or maintaining
Eurodollar Rate Loans, then the Agent shall give telephonic notice (promptly
confirmed in writing) to the Borrower and each Bank of such determination. Such
notice shall specify the basis for such determination and shall, in the absence
of manifest error, be conclusive and binding for all purposes. Thereafter, the
obligation of the Banks to make or maintain Eurodollar Rate Loans hereunder
shall be suspended until the Agent (upon the instructions of the Majority Banks)
revokes such notice. Upon receipt of such notice, the Borrower may revoke any
Notice then submitted by it. If the Borrower does not revoke such Notice, the
Banks shall make, convert or continue Loans, as proposed by the Borrower, in the
amount specified in the Notice submitted by the Borrower, but such Loans shall
be made, converted or continued as Base Rate Loans instead of Eurodollar Rate
Loans, as the case may be.
SECTION 5.02 Funding Losses. In addition to such amounts as
are required to be paid by the Borrower pursuant to Section 5.03, the Borrower
shall compensate each Bank, promptly upon receipt of such Bank's written request
made to the Borrower (with a copy to the Agent), for all losses, costs and
expenses (including any loss or expense incurred by such Bank in obtaining,
liquidating or re-employing deposits or other funds to fund or maintain its
Eurodollar Rate Loans), if any, which such Bank sustains: (I) if the Borrower
repays, converts or prepays any Eurodollar Rate Loan on a date other than the
last day of an Interest Period for such Eurodollar Rate Loan (whether as a
result of an optional prepayment, mandatory prepayment, a payment as a result of
acceleration or otherwise); (II) if the Borrower fails to borrow a Eurodollar
Rate Loan after giving its Notice (other than as a result of the operation of
Section 5.01 or 5.04); (III) if the Borrower fails to convert into or continue a
Eurodollar Rate Loan after giving its Notice (other than as a result of the
operation of Section 5.01 or 5.04); or (IV) if the Borrower fails to prepay a
Eurodollar Rate Loan after giving its Notice. Any such request for compensation
shall set forth the basis for the calculation of requested compensation and
shall, in the absence of manifest error, be conclusive and binding for all
purposes.
24.
SECTION 5.03 Regulatory Changes.
(a) Increased Costs. If after the date hereof, the
adoption of, or any change in, any applicable law, rule or regulation, or any
change therein, or any change in the interpretation or administration thereof by
any Governmental Authority charged with the interpretation or administration
thereof (a "Regulatory Change"), or compliance by any Bank (or its Lending
Office) with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority shall impose, modify or deem
applicable any reserve, special deposit or similar requirement (including any
such requirement imposed by the FRB, but excluding with respect to any
Eurodollar Rate Loan any such requirement included in the calculation of the
Eurodollar Rate) against assets of, deposits with or for the account of, or
credit extended by, any Bank's Lending Office or shall impose on any Bank (or
its Lending Office) or on the United States market for the interbank eurodollar
market any other condition affecting its Eurodollar Rate Loans or its obligation
to make Eurodollar Rate Loans, and the result of any of the foregoing is to
increase the cost to such Bank (or its Lending Office) of making or maintaining
any Eurodollar Rate Loan hereunder, or to reduce the amount of any sum received
or receivable by such Bank (or its Lending Office) under this Agreement with
respect thereto, by an amount deemed by such Bank, in good faith and on a
non-discriminatory basis, to be material, then from time to time, within 30 days
after written demand by such Bank (with a copy to the Agent), the Borrower shall
pay to such Bank such additional amounts as shall compensate such Bank for such
increased cost or reduction in respect of its Eurodollar Rate Loans hereunder.
(b) Capital Requirements. If any Bank shall have determined in
good faith that any Regulatory Change regarding capital adequacy, or compliance
by such Bank (or any corporation controlling such Bank) with any request,
guideline or directive regarding capital adequacy (whether or not having the
force of law) of any Governmental Authority, has or shall have the effect of
reducing the rate of return on such Bank's or such corporation's capital as a
consequence of such Bank's obligations hereunder to a level below that which
such Bank or such corporation would have achieved but for such adoption, change
or compliance (taking into consideration such Bank's or such corporation's
policies with respect to capital adequacy), by an amount deemed, in good faith
and on a non-discriminatory basis, by such Bank to be material, then from time
to time, within 30 days after written demand by such Bank (with a copy to the
Agent) in reasonable detail describing such reduction, the Borrower shall pay to
such Bank such additional amounts as shall compensate such Bank for such
reduction in respect of its obligations hereunder.
(c) Requests. Any such request for compensation by a Bank
under this Section 5.03 shall set forth the basis of calculation thereof and
shall, in the absence of manifest error, be conclusive and binding for all
purposes. In determining the amount of such compensation, such Bank may use any
reasonable averaging and attribution methods.
SECTION 5.04 Illegality. If any Bank shall determine that it
has become unlawful, as a result of any Regulatory Change, for such Bank to
make, convert into or maintain Eurodollar Rate Loans as contemplated by this
Agreement, such Bank shall promptly give notice of such determination to the
Borrower (through the Agent), and (I) the obligation of such Bank to make or
convert into Eurodollar Rate Loans, as the case may be, shall be suspended until
such Bank gives notice that the circumstances causing such suspension no longer
exist; and (II) each
25.
of such Bank's outstanding Eurodollar Rate Loans, as the case may be, shall, if
requested by such Bank, be converted into a Base Rate Loan not later than upon
expiration of the Interest Period related to such Eurodollar Rate Loan, or, if
earlier, on such date as may be required by the applicable Regulatory Change, as
shall be specified in such request. Any such determination shall, in the absence
of manifest error, be conclusive and binding for all purposes.
SECTION 5.05 Funding Assumptions. Solely for purposes of
calculating amounts payable by the Borrower to the Banks under this Article V,
each Eurodollar Rate Loan made by a Bank (and any related reserve, special
deposit or similar requirement) shall be conclusively deemed to have been funded
at the Interbank Rate used in determining the Eurodollar Rate for such
Eurodollar Rate Loan by a matching deposit or other borrowing in the interbank
eurodollar market for a comparable amount and for a comparable period, whether
or not such Eurodollar Rate Loan is in fact so funded.
SECTION 5.06 Obligation to Mitigate. Each Bank agrees that as
promptly as practicable after it becomes aware of the occurrence of an event
that would entitle it to give notice pursuant to Section 5.03(a), 5.03(b) or
5.04, and in any event if so requested by the Borrower, each Bank shall use
reasonable efforts to make, fund or maintain its affected Eurodollar Rate Loans
through another Lending Office if as a result thereof the increased costs would
be avoided or materially reduced or the illegality would thereby cease to exist;
provided, however, that such Bank shall not be obligated to select an
alternative Lending Office if such Bank determines that (a) as a result of such
selection such Bank would be in violation of any applicable law, regulation,
treaty, or guideline, or would incur additional costs or expenses or (b) such
selection would be inadvisable for regulatory reasons or inconsistent with the
interests of such Bank.
SECTION 5.07 Substitution of Banks. Upon the receipt by the
Borrower from any Bank (an "Affected Bank") of a request for compensation under
Section 5.03, a notice under Section 5.04 or a request for payment under Section
6.03, or upon notice to the Agent from any Bank that it shall not consent to a
request by the Borrower for an extension of the Revolving Termination Date
pursuant to subsection 4.01(c), the Borrower may (i) request one more of the
other Banks to acquire and assume all or part of such Affected Bank's Loans and
Revolving Commitment; or (ii) designate an Eligible Assignee satisfactory to the
Borrower to acquire and assume all or part of such Affected Bank's Loans and
Revolving Commitment (in each case, a "Replacement Bank"). Any such designation
of a Replacement Bank under clause (ii) shall be subject to the prior written
consent of the Agent (which consent shall not be unreasonably withheld). In
connection with any such assumption (a) the Replacement Bank shall pay to the
Affected Bank in immediately available funds on the date of the assignment the
principal amount of the Loans made by the Affected Bank hereunder which are
being acquired by the Replacement Bank, and (b) the Borrower shall pay to the
Affected Bank in immediately available funds on the date of the assignment the
interest accrued to the date of the assignment on the Loans which are being
acquired by the Replacement Bank and all other amounts then accrued for the
Affected Bank's account or owed to it hereunder with respect to such Loans,
including any amounts owing under Section 5.02.
26.
ARTICLE VI
PAYMENTS
SECTION 6.01 Pro Rata Treatment. Except as otherwise provided
in this Agreement, each Borrowing hereunder, each Revolving Commitment
reduction, each payment (including each prepayment) by the Borrower on account
of the principal of and interest on the Loans and on account of any Revolving
Commitment fee or utilization fee, and each conversion or continuation of Loans,
shall be made ratably in accordance with the respective Pro Rata Shares of the
Banks.
SECTION 6.02 Payments.
(a) Payments. The Borrower shall make each payment under
the Loan Documents, unconditionally in full without set-off, counterclaim or
other defense, not later than 2:00 P.M. (California time) on the day when due to
the Agent in Dollars and in same day or immediately available funds, to the
Agent's Account. The Agent shall promptly thereafter distribute like funds
relating to the payment of principal or interest, Revolving Commitment fee,
utilization fee or any other amounts payable to the Banks, ratably (except as a
result of the operation of Article V) to the Banks in accordance with their Pro
Rata Shares.
(b) Application. (i) Unless the Agent shall receive a
timely election by the Borrower with respect to the application of any principal
payments, each payment of principal by the Borrower shall be applied (a) first,
to the Base Rate Loans then outstanding, and (b) second, to the Eurodollar Rate
Loans.
(c) Extension. Whenever any payment hereunder shall be
stated to be due, or whenever any Interest Payment Date or any other date
specified hereunder would otherwise occur, on a day other than a Business Day,
then, except as otherwise provided herein, such payment shall be made, and such
Interest Payment Date or other date shall occur, on the next succeeding Business
Day, and such extension of time shall in such case be included in the
computation of payment of interest, Revolving Commitment fee or utilization fee
hereunder.
SECTION 6.03 Taxes.
(a) No Reduction of Payments. The Borrower shall pay all
amounts of principal, interest, fees and other amounts due under the Loan
Documents free and clear of, and without reduction for or on account of, any
present and future taxes, levies, imposts, duties, fees, assessments, charges,
deductions or withholdings and all liabilities with respect thereto excluding,
in the case of each Bank and the Agent, income and franchise taxes imposed on it
by the jurisdiction under the laws of which such Bank or the Agent is organized
or in which its principal executive offices may be located or any political
subdivision or taxing authority thereof or therein or by the jurisdiction of
such Bank's Lending Office and any political subdivision or taxing authority
thereof or therein (all such nonexcluded taxes, levies, imposts, duties, fees,
assessments, charges, deductions, withholdings and liabilities being hereinafter
referred to as "Taxes"). If any Taxes shall be required by law to be deducted or
withheld from any payment, the Borrower shall increase the amount paid so that
the respective Bank or the Agent receives when due (and is entitled to retain),
after deduction or withholding for or on account of such
27.
Taxes (including deductions or withholdings applicable to additional sums
payable under this Section 6.03), the full amount of the payment provided for in
the Loan Documents.
(b) Deduction or Withholding; Tax Receipts. If the
Borrower makes any payment hereunder in respect of which it is required by law
to make any deduction or withholding, it shall pay the full amount to be
deducted or withheld to the relevant taxation or other authority within the time
allowed for such payment under applicable law and promptly thereafter shall
furnish to the Agent (for itself or for redelivery to the Bank to or for the
account of which such payment was made) an original or certified copy of a
receipt evidencing payment thereof, together with such other information and
documents as the Agent or any Bank (through the Agent) may reasonably request.
(c) Indemnity. If any Bank or the Agent is required by law to
make any payment on account of Taxes, or any liability in respect of any Tax is
imposed, levied or assessed against any Bank or the Agent, the Borrower shall
indemnify the Agent and the Banks for and against such payment or liability,
together with any incremental taxes, interest or penalties, and all costs and
expenses, payable or incurred in connection therewith, including Taxes imposed
on amounts payable under this Section 6.03. A certificate of the Agent or any
Bank as to the amount of any such payment shall, in the absence of manifest
error, be conclusive and binding for all PURPOSES. If any Bank shall obtain a
credit with respect to all or part of any tax paid or indemnified by the
Borrower pursuant to this Section 6.03, then, to the extent such items have not
previously been taken into account in computing the amount of any payment
pursuant to this sentence or the amount of indemnification payable under this
Section 6.03, such Bank shall promptly pay to the Borrower an amount equal to
the amount of such credit, reduced by the amount of any prior payments by such
Bank to, or for the benefit of, the Borrower arising from the same claim. All
computations required hereunder shall be made by such Bank, acting reasonably
and in good faith and the results of such computations shall be delivered to the
Borrower. At the request and expense of the Borrower the accuracy of such
computations shall be verified by such Bank's independent accounts.
(d) Forms W-8BEN and W-8ECI. Each Bank that is incorporated
under the laws of any jurisdiction outside the United States agrees to deliver
to the Agent and the Borrower on or prior to the Closing Date, and in a timely
fashion thereafter, Internal Revenue Service Form W-8BEN, Form W-8ECI or such
other documents and forms of the I.R.S., duly executed and completed by such
Bank, as are required under United States law to establish such Bank's status
for United States withholding tax purposes.
(e) Mitigation. Each Bank agrees that as promptly as
practicable after it becomes aware of the occurrence of an event that would
cause the Borrower to make any payment in respect of Taxes to such Bank or a
payment in indemnification with respect to any Taxes, and in any event if so
requested by the Borrower following such occurrence, each Bank shall use
reasonable efforts to make, fund or maintain its affected Loan (or relevant part
thereof) through another Lending Office if as a result thereof the additional
amounts so payable by the Borrower would be avoided or materially reduced;
provided, however, that such Bank shall not be obligated to select an
alternative Lending Office if such Bank determines that (a) as a result of such
selection such Bank would be in violation of any applicable law, regulation,
treaty, or
28.
guideline, or would incur additional costs or expenses or (b) such selection
would be inadvisable for regulatory reasons or inconsistent with the interests
of such Bank.
SECTION 6.04 Non-Receipt of Funds. Unless the Agent shall have
received notice from the Borrower prior to the date on which any payment is due
to any of the Banks hereunder that the Borrower shall not make such payment in
full, the Agent may assume that the Borrower has made such payment in full to
the Agent on such date and the Agent may, in reliance upon such assumption,
cause to be distributed to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Borrower shall not have so
made such payment in full to the Agent, each Bank shall repay to the Agent
forthwith on demand such amount distributed to such Bank together with interest
thereon, for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Agent, at the Federal Funds
Rate.
SECTION 6.05 Sharing of Payments. If any Bank shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Loans made by it (other than pursuant
to a provision hereof providing for non-pro rata treatment) in excess of its Pro
Rata Share of payments on account of the Loans obtained by all the Banks, such
Bank shall forthwith advise the Agent of the receipt of such payment, and within
five Business Days of such receipt purchase from the other Banks (through the
Agent), without recourse, such participations in the Loans made by them as shall
be necessary to cause such purchasing Bank to share the excess payment ratably
with each of them in accordance with the respective Pro Rata Shares of the
Banks; provided, however, that if all or any portion of such excess payment is
thereafter recovered by or on behalf of the Borrower from such purchasing Bank,
the purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest. No documentation other than notices and the
like referred to in this Section 6.05 shall be required to implement the terms
of this Section 6.05. The Agent shall keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased
pursuant to this Section 6.05 and shall in each case notify the Banks following
any such purchases.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01 Conditions Precedent to the Initial Loans. The
obligation of each Bank to make its initial Loan shall be subject to the
satisfaction of each of the following conditions precedent on or before the
Closing Date:
(a) Fees and Expenses. The Borrower shall have paid (i) all
invoiced fees then due in accordance with Section 3.03 and under the Fee Letter
and (ii) all invoiced costs and expenses then due in accordance with Section
12.04(a).
(b) Loan Documents. The Agent shall have received the
following Loan Documents: (i) this Agreement, executed by the Borrower and each
Bank (ii) the Notes, executed by the Borrower, for any Banks requesting Notes;
and (iii) the Fee Letter, executed by each of the respective parties thereto.
29.
(c) Certificate of Responsible Officer. The Agent shall have
received in form and substance satisfactory to it a certificate of a Responsible
Officer of the Borrower, dated the Closing Date, stating that (a) the
representations and warranties contained in Section 8.01 and in the other Loan
Documents are true and correct on and as of the date of such certificate as
though made on and as of such date and (b) on and as of the Closing Date, no
Default shall have occurred and be continuing or shall result from the initial
Borrowing.
(d) Corporate Documents. The Agent shall have received the
following, in form and substance satisfactory to it:
(i) certified copies of the certificate or articles,
as the case may be, of incorporation of the Borrower, together with
certificates as to good standing and tax status, from the Secretary of
State or other Governmental Authority, as applicable, of the Borrower's
state of incorporation and California, each dated as of a recent date
prior to the Closing Date;
(ii) a certificate of the Secretary or Assistant
Secretary of the Borrower, dated the Closing Date, certifying (a)
copies of the bylaws of the Borrower and the resolutions of the Board
of Directors of the Borrower authorizing the execution, delivery and
performance of the Loan Documents and (b) the incumbency, authority and
signatures of each officer of the Borrower authorized to execute and
deliver the Loan Documents and act with respect thereto, upon which
certificate the Agent and the Banks may conclusively rely until the
Agent shall have received a further certificate of the Secretary or an
Assistant Secretary of the Borrower canceling or amending such prior
certificate;
(e) Legal Opinion. The Agent shall have received the opinion
of Xxxxxx Xxxx & Xxxxxxxx LLP, counsel to the Borrower, dated the Closing Date,
in substantially the form of Exhibit E.
(f) Compliance Certificate. The Agent shall have received a
completed Compliance Certificate for the Borrower's fiscal quarter ended on June
30, 2001.
(g) Material Adverse Effect. On and as of the date of such
Borrowing, there shall have occurred no Material Adverse Effect since June 30,
2001.
(h) Payment to Departing Banks. All interest, principal, fees
and other amounts owing under the Existing Credit Agreement to any Departing
Bank shall have been paid in full, and all commitments by any Departing Bank to
lend thereunder shall be terminated.
SECTION 7.02 Conditions Precedent to All Loans. The obligation
of each Bank to make a Loan (including its initial Loan) on the occasion of each
Borrowing shall be subject to the satisfaction of each of the following
conditions precedent:
(a) Notice. The Borrower shall have given the Notice of
Borrowing as provided in Section 2.02(a).
30.
(b) Representations and Warranties; No Default. On the
date of such Borrowing, both before and after giving effect thereto and to the
application of proceeds therefrom: (i) the representations and warranties
contained in Section 8.01 and in the other Loan Documents shall be true, correct
and complete on and as of the date of such Borrowing as though made on and as of
such date; and (ii) no Default shall have occurred and be continuing or shall
result from such Borrowing. For purposes of this Section 7.02(b), the
representation and warranty made in Section 8.01(p) shall be deemed instead to
refer to the last day of the most recent quarter and year for which financial
statements have then been delivered; the preceding clause (i) shall not be
deemed to refer to any other representations and warranties which relate solely
to an earlier date (provided that such other representations and warranties
shall be true, correct and complete as of such earlier date); and the preceding
clause (i) shall take into account any amendments to the Schedules and other
disclosures made in writing by the Borrower to the Agent and the Banks after the
Closing Date and approved by the Agent and the Majority Banks. The giving of any
Notice of Borrowing and the acceptance by the Borrower of the proceeds of each
Borrowing on or following the Closing Date shall each be deemed a certification
to the Agent and the Banks that on and as of the date of such Borrowing such
statements are true.
(c) Additional Documents. The Agent shall have received,
in form and substance satisfactory to it, such additional approvals, opinions,
documents and other information as the Agent or any Bank (through the Agent) may
reasonably request.
ARTICLE VIII
REPRESENTATIONS AND WARRANTIES
SECTION 8.01 Representations and Warranties. The Borrower
represents and warrants to each Bank and the Agent that:
(a) Organization and Powers. Each of the Borrower and its
Material Subsidiaries (i) is a corporation or partnership duly organized or
formed, as the case may be, validly existing and in good standing under the laws
of the jurisdiction of its incorporation or formation, (ii) except as set forth
on Schedule 8.01(a), is qualified to do business and is in good standing in each
jurisdiction in which the failure so to qualify or be in good standing would
result in a Material Adverse Effect and (iii) has all requisite power and
authority to own its assets and carry on its business and, with respect to the
Borrower, to execute, deliver and perform its obligations under the Loan
Documents.
(b) Authorization; No Conflict. The execution, delivery and
performance by the Borrower of the Loan Documents have been duly authorized by
all necessary corporate action of the Borrower and do not and will not (i)
contravene the terms of the certificate or articles, as the case may be, of
incorporation and the bylaws of the Borrower or result in a breach of or
constitute a default under any indenture or loan or credit agreement or any
other agreement, lease or instrument to which the Borrower is a party or by
which it or its properties may be bound or affected; (ii) violate any provision
of any law, rule, regulation, order, writ, judgment, injunction, decree or the
like binding on or affecting the Borrower; or (iii) except as contemplated by
this Agreement, result in, or require, the creation or imposition of any Lien
upon or with respect to any of the properties of the Borrower.
31.
(c) Binding Obligation. The Loan Documents constitute, or
when delivered under this Agreement will constitute, legal, valid and binding
obligations of the Borrower, enforceable against the Borrower in accordance with
their respective terms.
(d) Consents. No authorization, consent, approval,
license, exemption of, or filing or registration with, any Governmental
Authority, or approval or consent of any other Person, is required for the due
execution, delivery or performance by the Borrower of any of the Loan Documents.
(e) No Defaults. Neither the Borrower nor any of its Material
Subsidiaries is in default under any material contract, lease, agreement,
judgment, decree or order to which it is a party or by which it or its
properties may be bound.
(f) Title to Properties; Liens. The Borrower and its
Material Subsidiaries have good and marketable title to, or valid and subsisting
leasehold interests in, their properties and assets, and there is no Lien upon
or with respect to any of such properties or assets, except for Permitted Liens.
(g) Litigation. Except as set forth on Schedule 8.01(g),
there are no actions, suits or proceedings pending or, to the best of the
Borrower's knowledge, threatened against or affecting the Borrower or any of its
Subsidiaries or the properties of the Borrower or any of its Subsidiaries before
any Governmental Authority or arbitrator which if determined adversely to the
Borrower or any such Subsidiary would result in a Material Adverse Effect.
(h) Compliance with Environmental Laws. Except as set forth on
Schedule 8.01(h), and except in respect of matters that in the aggregate are not
and cannot reasonably be expected to result in a Material Adverse Effect, the
Borrower and each Material Subsidiary is in full compliance with all
Environmental Laws, whether in connection with the ownership, use, maintenance
or operation of its Premises or the conduct of any business thereon, or
otherwise. Neither the Borrower, any Material Subsidiary, nor to the best of the
Borrower's knowledge, any previous owner, tenant, occupant, user or operator of
the Premises, or any present tenant or other present occupant, user or operator
of the Premises has used, generated, manufactured, installed, treated, released,
stored or disposed of any Hazardous Substances on, under, or at the Premises,
except in compliance with all applicable Environmental Laws. To the best of the
Borrower's knowledge, no Hazardous Substances have at any time been spilled,
leaked, dumped, deposited, discharged, disposed of or released on, under, at or
from the Premises, nor have any of the Premises been used at any time by any
Person as a landfill or waste disposal site. Except as set forth on Schedule
8.01(h), there are no actions, suits, claims, notices of violation, hearings,
investigations or proceedings pending or, to the best of the Borrower's
knowledge, threatened against or affecting the Borrower, any Material Subsidiary
or with respect to the ownership, use, maintenance and operation of the
Premises, relating to Environmental Laws or Hazardous Substances.
(i) Governmental Regulation. Neither the Borrower nor any
of its Material Subsidiaries is subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, the Investment Company Act
of 1940, the Interstate Commerce Act, any
32.
state public utilities code or any other federal or state statute or regulation
limiting its ability to incur Indebtedness.
(j) ERISA.
(i) The Borrower and all ERISA Affiliates have
satisfied all applicable contribution requirements under Section
412(c)(11) of the Internal Revenue Code and have never sought a waiver
under Section 412(d) of the Internal Revenue Code;
(ii) no Termination Event has occurred and is
continuing, or is reasonably expected to occur;
(iii) the aggregate amount of Unfunded Accrued
Benefits under all Pension Plans (excluding in such computation Pension
Plans with assets greater than accrued benefits) does not exceed
$5,000,000;
(iv) there is no condition or event under which the
Borrower, any ERISA Affiliate, or any Plan maintained by the Borrower
or any ERISA Affiliate could be subject to any risk of material
liability under ERISA or the Internal Revenue Code, regardless of
whether the Borrower or any ERISA Affiliate engaged in a transaction
giving rise to the liability;
(v) neither the Borrower nor any ERISA Affiliate has
unfunded, contingent liability that exceeds $5,000,000 with respect to
Plans that provide post-retirement welfare benefits; and
(vi) all Plans maintained by, or contributed to by,
the Borrower or any ERISA Affiliate comply in all material respects,
and have been administered in material compliance with, the
requirements of applicable law (including, if applicable, foreign law,
ERISA and the Internal Revenue Code), and in accordance with each
Plan's terms.
(k) Subsidiaries. The name, capital structure and
ownership of each Subsidiary of the Borrower on the date of this Agreement is as
set forth in Schedule 8.01(k). All of the outstanding capital stock of, or other
interest in, each such Subsidiary has been validly issued, and is fully paid and
nonassessable. Except as set forth in such Schedule, on the date of this
Agreement the Borrower has no equity interest in any Person. Each Material
Subsidiary of the Borrower, as of the date of this Agreement, is specified as
such on Schedule 8.01(k).
(l) Margin Regulations. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying "margin
stock" (within the meaning of Regulations G or U of the FRB). No part of the
proceeds of the Loans will be used to purchase or carry any margin stock or to
extend credit to others for the purpose of purchasing or carrying any margin
stock, except in accordance with the provisions of Regulations T, U, and X of
the FRB.
(m) Taxes. Each of the Borrower and its Material
Subsidiaries has duly filed all tax and information returns required to be
filed, and has paid all taxes, fees, assessments and other governmental charges
or levies that have become due and payable, except to the extent
33.
such taxes or other charges are being contested in good faith and are adequately
reserved against in accordance with GAAP.
(n) Patents and Other Rights. Each of the Borrower and its
Subsidiaries possesses all permits, franchises, licenses, patents, trademarks,
trade names, service marks, copyrights and all rights with respect thereto, free
from burdensome restrictions, that are reasonably necessary for the ownership,
maintenance and operation of its business and neither the Borrower nor any such
Subsidiary is in violation of any rights of others with respect to the
foregoing, except where the failure to do so would not reasonably be expected to
result in a Material Adverse Effect.
(o) Insurance. The properties of the Borrower and its
Material Subsidiaries are insured, with financially sound and reputable
insurance companies, in such amounts, with such deductibles and covering such
risks as is customarily carried by companies engaged in similar businesses and
owning similar properties in the localities where the Borrower or such Material
Subsidiary operates.
(p) Financial Statements. The audited consolidated balance
sheet of the Borrower and its Subsidiaries as at December 30, 2000, and the
related consolidated statements of income, shareholders' equity and cash flows
for the fiscal year then ended, and the unaudited consolidated balance sheet of
the Borrower and its Subsidiaries as at June 30, 2001, and the related
consolidated statements of income, shareholders' equity and cash flows, for the
quarter then ended and the 6-month period then ended, are complete and correct
and fairly present the financial condition of the Borrower and its Subsidiaries
as at such dates and the results of operations of the Borrower and its
Subsidiaries for the periods covered by such statements, in each case in
accordance with GAAP consistently applied, subject, in the case of the June 30,
2001 financial statements, to normal year-end adjustments and the absence of
notes.
(q) Liabilities. Neither the Borrower nor any of its
Material Subsidiaries has any material liabilities, fixed or contingent, that
are not reflected in the financial statements referred to in subsection (p), in
the notes thereto or otherwise disclosed in writing to the Banks, other than
liabilities arising in the ordinary course of business since June 30, 2001.
(r) Labor Disputes, Etc. There are no strikes, lockouts or
other labor disputes against the Borrower or any of its Material Subsidiaries,
or, to the best of the Borrower's knowledge, threatened against or affecting the
Borrower or any of its Material Subsidiaries, and no event of loss has occurred
with respect to any assets or property of the Borrower or any of its
Subsidiaries, which would reasonably be expected to result in a Material Adverse
Effect.
(s) Solvency. Each of the Borrower and its Material
Subsidiaries is Solvent.
(t) Disclosure. None of the representations or warranties
made by the Borrower in the Loan Documents as of the date of such
representations and warranties, and none of the statements contained in each
exhibit, report, certificate or written statement furnished by or on behalf of
the Borrower or any of its Subsidiaries to the Agent and the Banks in connection
with the Loan Documents, contains any untrue statement of a material fact
34.
or omits any material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
are made, not misleading, as of the time made or delivered.
ARTICLE IX
COVENANTS
SECTION 9.01 Reporting Covenants. So long as any of the
Obligations shall remain unpaid or any Bank shall have any Revolving Commitment,
the Borrower agrees that:
(a) Financial Statements and Other Reports. The Borrower
shall furnish to the Agent in sufficient copies for distribution to the Banks:
(i) as soon as available and in any event within 55
days after the end of each of the first three fiscal quarters of each
fiscal year, a consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such quarter, and the related
consolidated statements of income, shareholders' equity and cash flows
of the Borrower and its Subsidiaries for such quarter and the portion
of the fiscal year through the end of such quarter, prepared in
accordance with GAAP consistently applied, all in reasonable detail and
setting forth in comparative form the figures for the corresponding
period in the preceding fiscal year, together with a certificate of a
Responsible Officer of the Borrower stating that such financial
statements fairly present the financial condition of the Borrower and
its Subsidiaries as at such date and the results of operations of the
Borrower and its Subsidiaries for the period ended on such date and
have been prepared in accordance with GAAP consistently applied,
subject to changes resulting from normal, year-end audit adjustments
and except for the absence of notes;
(ii) as soon as available and in any event within 100
days after the end of each fiscal year, a consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such fiscal year,
and the related consolidated statements of income, shareholders' equity
and cash flows of the Borrower and its Subsidiaries for such fiscal
year, prepared in accordance with GAAP consistently applied, all in
reasonable detail and setting forth in comparative form the figures for
the previous fiscal year, accompanied by a report thereon of a firm of
independent certified public accountants of recognized national
standing, which report shall be unqualified as to scope of audit or the
status of the Borrower and its Subsidiaries as a going concern;
(iii) together with the financial statements required
pursuant to clauses (i) and (ii), a Compliance Certificate of a
Responsible Officer as of the end of the applicable accounting period;
(iv) promptly after the giving, sending or filing
thereof, copies of all reports, if any, which the Borrower sends to the
holders of its respective capital stock or other securities and of all
reports or filings, if any, by the Borrower with the SEC or any
national securities exchange.
As to any information contained in materials furnished pursuant to clause (iv),
the Borrower shall not be separately required to furnish such information under
clause (i) or (ii), but the
35.
foregoing shall not be in derogation of the obligation of the Borrower to
furnish the information and materials described in clauses (i) and (ii) at the
times specified therein.
(b) Additional Information. The Borrower shall furnish to the
Agent:
(i) promptly after the Borrower has knowledge or
becomes aware thereof, notice of the occurrence or existence of any
Default;
(ii) prompt written notice of (A) any proposed
acquisition of stock, assets or property by the Borrower or any of its
Material Subsidiaries that could reasonably be expected to result in
material environmental liability under Environmental Laws, and (B)(1)
any spillage, leakage, discharge, disposal, leaching, migration or
release of any Hazardous Substances required to be reported to any
Governmental Authority under applicable Environmental Laws, and (2) all
actions, suits, claims, notices of violation, hearings, investigations
or proceedings pending, or to the best of the Borrower's knowledge,
threatened against or affecting the Borrower or any of its Material
Subsidiaries or with respect to the ownership, use, maintenance and
operation of the Premises, relating to Environmental Laws or Hazardous
Substances;
(iii) prompt written notice of all actions, suits and
proceedings before any Governmental Authority or arbitrator pending, or
to the best of the Borrower's knowledge, threatened against or
affecting the Borrower or any of its Material Subsidiaries which if
adversely determined would be reasonably expected to have a Material
Adverse Effect;
(iv) promptly after the Borrower has knowledge or
becomes aware thereof, (a) notice of the occurrence of any Termination
Event, together with a copy of any notice of such Termination Event to
the PBGC, and (b) the details concerning any material action taken or
proposed to be taken by the IRS, PBGC, Department of Labor or other
Person with respect thereto;
(v) the information regarding insurance maintained by
the Borrower and its Material Subsidiaries as required under Section
9.03(c);
(vi) within 30 days of the date thereof, or, if
earlier, on the date of delivery of any financial statements pursuant
to subsection (a), notice of any material change in accounting policies
or financial reporting practices by the Borrower or any of its Material
Subsidiaries;
(vii) promptly after the occurrence thereof, notice
of any labor controversy resulting in or threatening to result in any
strike, work stoppage, boycott, shutdown or other material labor
disruption against or involving the Borrower or any of its Material
Subsidiaries;
(viii) upon the reasonable request from time to time,
but no more often than once per fiscal quarter, of the Agent or any
Bank (through the Agent), the Swap Termination Values, together with a
description of the method by which such values were
36.
determined, relating to any then-outstanding Rate Contracts to which
the Borrower or any of its Material Subsidiaries is party;
(ix) prompt written notice of any other condition or
event which has resulted, or that could reasonably be expected to
result, in a Material Adverse Effect; and
(x) such other information respecting the operations,
properties, business or condition (financial or otherwise) of the
Borrower or its Subsidiaries as any Bank (through the Agent) may from
time to time reasonably request.
Each notice pursuant to this subsection (b) shall be accompanied by a written
statement by a Responsible Officer of the Borrower setting forth details of the
occurrence referred to therein, and stating what action the Borrower proposes to
take with respect thereto.
SECTION 9.02 Financial Covenants. So long as any of the
Obligations shall remain unpaid or any Bank shall have any Revolving Commitment,
the Borrower agrees that:
(a) Minimum Consolidated EBITDA. The Borrower shall
maintain as of the last day of each fiscal quarter a minimum Consolidated EBITDA
for the period of four fiscal quarters ended on such date (taken as a single
accounting period) of not less than $200,000,000;
(b) [Intentionally omitted.]
(c) Minimum Fixed Charge Coverage Ratio. The Borrower
shall maintain as of the last day of each fiscal quarter a ratio (such ratio,
the "Fixed Charge Coverage Ratio") of (i) Consolidated EBITDA to (ii) the sum of
(without duplication) (A) Consolidated Interest Expense plus (B) 20% of Funded
Debt plus (C) taxes paid in cash, plus (D) payments in respect of Capital
Leases, in each case, of the Borrower and its Subsidiaries on a consolidated
basis, as determined in accordance with GAAP, for the 12-month period ended on
such date, of not less than 1.50 to 1.00.
(d) Minimum Current Ratio. The Borrower shall maintain as
of the last day of each fiscal quarter a ratio of (i) current assets to (ii)
current liabilities, in each case, of the Borrower and its Subsidiaries on a
consolidated basis, as determined in accordance with GAAP, of not less than 1.00
to 1.00. For purposes of calculating the Borrower's compliance with this Section
9.02(d) as of the last day of any fiscal quarter, current liabilities shall
include (A) off-balance sheet Indebtedness having a maturity of less than one
year from such fiscal quarter-end, (B) reimbursement obligations in respect of
letters of credit having an expiry date less than one year from such fiscal
quarter-end and (C) the current portion of (1) all Loans then outstanding
hereunder and (2) all loans then outstanding under the Multi-Year Credit
Agreement.
(e) Maximum Funded Debt to EBITDA Ratio. The Borrower
shall maintain as of the last day of each fiscal quarter a ratio of (i) Funded
Debt of the Borrower and its Subsidiaries on a consolidated basis, to (ii)
Consolidated EBITDA for the twelve-month period ended on such date, of not more
than 2.00 to 1.00.
37.
SECTION 9.03 Additional Affirmative Covenants. So long as any
of the Obligations shall remain unpaid or any Bank shall have any Revolving
Commitment, the Borrower agrees that:
(a) Preservation of Existence, Etc. The Borrower shall,
and shall cause each of its Material Subsidiaries to, (i) maintain and preserve
its legal existence, and (ii) maintain and preserve its rights to transact
business and all other rights, franchises and privileges necessary or desirable
in the normal course of its business and operations and the ownership of its
properties, except in connection with transactions permitted by Section 9.04.
(b) Payment of Obligations. The Borrower shall, and shall
cause each of its Material Subsidiaries to, pay and discharge (i) all taxes,
fees, assessments and governmental charges or levies imposed upon it or upon its
properties or assets prior to the date on which penalties attach thereto, and
all lawful claims for labor, materials and supplies which, if unpaid, might
become a Lien upon any properties or assets of the Borrower or any Material
Subsidiary, except to the extent such taxes, fees, assessments or governmental
charges or levies, or such claims, are being contested in good faith by
appropriate proceedings and are adequately reserved against in accordance with
GAAP; (ii) all lawful claims which, if unpaid, would by law become a Lien upon
its property not constituting a Permitted Lien; and (iii) all Indebtedness, as
and when due and payable, but subject to any subordination provisions contained
in any instrument or agreement evidencing such Indebtedness.
(c) Maintenance of Insurance. The Borrower shall, and
shall cause each of its Material Subsidiaries to, carry and maintain in full
force and effect, at its own expense and with financially sound and reputable
insurance companies, insurance in such amounts, with such deductibles and
covering such risks as is customarily carried by companies engaged in the same
or similar businesses and owning similar properties in the localities where the
Borrower or such Subsidiary operates, including fire, extended coverage,
business interruption, public liability, property damage and worker's
compensation. Upon the request of the Agent or any Bank, the Borrower shall
furnish to the Agent from time to time a certificate of the Borrower's insurance
broker or other insurance specialist stating that all premiums then due on the
policies relating to insurance have been paid, that such policies are in full
force and effect and that such insurance coverage and such policies comply with
all the requirements of this subsection.
(d) Keeping of Records and Books of Account. The Borrower
shall, and shall cause each of its Material Subsidiaries to, keep adequate
records and books of account, in which complete entries shall be made in
accordance with GAAP, reflecting all financial transactions of the Borrower and
its Material Subsidiaries.
(e) Inspection Rights. Upon reasonable prior notice to the
Borrower (except during the existence of an Event of Default, in which case no
prior notice shall be required), the Borrower shall at any reasonable time and
from time to time permit the Agent and the Banks or any of their respective
agents or representatives to visit and inspect any of the properties of the
Borrower and its Material Subsidiaries and to examine and make copies of and
abstracts from the records and books of account of the Borrower and its Material
Subsidiaries, and to discuss the business affairs, finances and accounts of the
Borrower and any such Material Subsidiary with any of the officers or
accountants of the Borrower or such Material Subsidiary; provided that
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with respect to any such discussions with the Borrower's or any Material
Subsidiary's accountants, the Borrower shall be given a reasonable opportunity
to have a representative participate in or otherwise be present at any such
discussion; and provided further that so long as no Event of Default has
occurred and is continuing, the Borrower's prior written consent (which consent
shall not be unreasonably withheld) shall be required prior to any discussions
between the Agent or any Bank or any of their respective agents or
representatives, on the one hand, and the Borrower's or any Material
Subsidiary's accountants, on the other.
(f) Compliance with Laws, Etc. The Borrower shall, and
shall cause each of its Material Subsidiaries to, comply in all material
respects with the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority (including all Environmental Laws) and the
terms of any indenture, contract or other instrument to which it may be a party
or under which it or its properties may be bound, except to the extent that the
failure to so comply would not reasonably be expected to result in a Material
Adverse Effect.
(g) Maintenance of Properties, Etc. The Borrower shall,
and shall cause each of its Material Subsidiaries to, maintain and preserve all
of its properties necessary or useful in the proper conduct of its business in
good working order and condition in accordance with the general practice of
other corporations of similar character and size, ordinary wear and tear
excepted.
(h) Licenses. The Borrower shall, and shall cause each of
its Material Subsidiaries to, obtain and maintain all licenses, authorizations,
consents, filings, exemptions, registrations and other governmental approvals
necessary in connection with (i) the execution, delivery and performance of the
Loan Documents and the consummation of the transactions therein contemplated and
(ii) the operation and conduct of its business and ownership of its properties,
except, in the case of this clause (ii), where the failure to do so would not
reasonably be expected to have a Material Adverse Effect.
(i) Action Under Environmental Laws. The Borrower shall,
and shall cause each of its Material Subsidiaries to, upon becoming aware of the
presence of any Hazardous Substance or the existence of any environmental
liability under applicable Environmental Laws with respect to the Premises, take
all actions, at their cost and expense, as shall be necessary or advisable to
investigate and clean up the condition of the Premises, including all removal,
containment and remedial actions, and restore the Premises to a condition in
compliance with applicable Environmental Laws.
(j) Use of Proceeds. The Borrower shall use the proceeds of
the Loans solely for general corporate purposes, including the repurchase of the
Borrower's stock for immediate cancellation and for acquisitions, in each case,
in compliance herewith.
(k) Further Assurances and Additional Acts. The Borrower
shall execute, acknowledge, deliver, file, notarize and register at its own
expense all such further agreements, instruments, certificates, documents and
assurances and perform such acts as the Agent or the Majority Banks shall
reasonably deem necessary or appropriate to effectuate the purposes of the Loan
Documents, and promptly provide the Agent with evidence of the foregoing
satisfactory in form and substance to the Agent or the Majority Banks.
39.
SECTION 9.04 Negative Covenants. So long as any of the
Obligations shall remain unpaid or any Bank shall have any Revolving Commitment,
the Borrower agrees that:
(a) Liens; Negative Pledges. The Borrower shall not
create, incur, assume or suffer to exist any Lien upon or with respect to any of
its properties, revenues or assets, whether now owned or hereafter acquired,
other than Permitted Liens.
(b) Change in Nature of Business. The Borrower shall not,
and shall not permit any of its Subsidiaries to, engage in any material line of
business substantially different from those lines of business carried on by it
at the date hereof or other businesses incidental or reasonably related thereto.
Without limiting the generality of the preceding sentence, the parties hereto
agree that this subsection 9.04(b) shall not operate to prohibit any Permitted
Receivables Purchase Facility otherwise permitted hereunder.
(c) Restrictions on Fundamental Changes. The Borrower
shall not, and shall not permit any of its Subsidiaries to, merge with or
consolidate into, or acquire all or substantially all of the assets of, any
Person, or sell, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of its
assets, except that:
(i) any of the Borrower's wholly owned Subsidiaries
may merge with, consolidate into or transfer all or substantially all
of its assets to another of the Borrower's wholly owned Subsidiaries or
to the Borrower and in connection therewith such Subsidiary may be
liquidated or dissolved;
(ii) the Borrower or any of its Subsidiaries may sell
or dispose of assets in accordance with the provisions of subsection
9.04(d);
(iii) the Borrower or any of its Subsidiaries may
make any investment permitted by subsection 9.04(e);
(iv) the Borrower or any of its Subsidiaries may
merge with or consolidate into any other Person, provided that (a) the
Borrower is the surviving corporation in respect of any merger or
consolidation involving the Borrower, (b) subject to the preceding
clause (a), after giving effect to any such merger or consolidation,
the surviving entity in respect thereof shall be a wholly owned
Subsidiary, and (c) no such merger or consolidation shall be made if a
Default would exist, or with the giving of notice or a passage of time,
or both, would come into existence after giving effect thereto; and
(v) the Borrower or any of its Subsidiaries may sell,
transfer or dispose of any Receivables and Receivables Related Assets
pursuant to any Permitted Receivables Purchase Facility.
(d) Sales of Assets. The Borrower shall not convey, sell,
lease, transfer, or otherwise dispose of, or part with control of (whether in
one transaction or a series of transactions) all or any or any material part of
its business, property or assets (including any
40.
shares of stock in any Subsidiary or other Person), whether now owned or
hereafter acquired, except sales or other dispositions of any of the following:
(i) any inventory in the ordinary course of business;
(ii) any Permitted Investments;
(iii) any assets which have become worn out or
obsolete or which are promptly being replaced, in the ordinary course
of business;
(iv) any Receivables and Receivables Related Assets
pursuant to any Permitted Receivables Purchase Facility;
(v) assets constituting the Borrower's
design-services operation pursuant to the Tality IPO;
(vi) the Xxxxx Avenue Campus pursuant to a
sale-leaseback transaction, provided that such sale is made for fair
value and the aggregate sales price from such sale is paid in cash;
(vii) any other assets to the extent not otherwise
permitted hereunder; provided that such assets do not constitute
Substantial Assets and such sale or disposition is made for fair value;
and provided further that (A) at the time of any such sale or
disposition, no Default shall exist or shall result therefrom, (B) the
aggregate sales price from such sale or disposition shall be paid in
cash, or, if approved by the board of directors of the Borrower,
capital stock or debt obligations so long as the aggregate sales price
paid in capital stock or debt obligations, when added to the non-cash
sales price of all other assets sold, leased, transferred or otherwise
disposed of pursuant to this clause (vii) after the Closing Date
pursuant to this Section 9.04(d)(vii), does not exceed 5% of
Consolidated Tangible Net Worth measured as of the last day of the then
most recent fiscal quarter, and (C) no dispositions of accounts or
notes receivable shall be permitted under this clause (vii) unless in
connection with the sale of all or substantially all of a business
unit, division or Subsidiary of the Borrower and such sale is otherwise
permitted hereunder.
For purposes of clause (vii), a sale, lease, transfer or other disposition of
assets shall be deemed to be of "Substantial Assets" if such assets, when added
to all other assets sold, leased, transferred or otherwise disposed of after the
Closing Date (other than assets sold in the ordinary course of business), shall
exceed 15% of Consolidated Tangible Net Worth measured as of the last day of the
then most recent fiscal quarter.
(e) Loans and Investments. The Borrower shall not, and
shall not permit any of its Subsidiaries to, purchase or otherwise acquire the
capital stock, assets (constituting a business unit), obligations or other
securities of or any interest in any Person, or otherwise extend any credit to,
guarantee the obligations of or make any additional investments in any Person,
other than in connection with:
41.
(i) extensions of credit in the nature of accounts
receivable, general intangibles or notes receivable arising from the
licensing of software or the sales of goods or services in the ordinary
course of business;
(ii) investments by the Borrower in the capital stock
of wholly-owned Subsidiaries, and extensions of credit by the Borrower
to any of its wholly owned Subsidiaries or by any of its wholly owned
direct or indirect Subsidiaries to another of its wholly owned direct
or indirect Subsidiaries or the Borrower, in each case in the ordinary
course of business;
(iii) Permitted Investments;
(iv) investments permitted under Section 9.04
(c)(iv);
(v) to the extent not otherwise permitted under this
subsection 9.04(e), additional purchases of, loans to or investments in
joint ventures or the capital stock, assets, obligations or other
securities of or interest in other Persons not exceeding 15% of
Consolidated Tangible Net Worth, measured as of the last day of the
then most recent fiscal quarter, as to all such investments, loans and
purchases in the aggregate, provided that (A) in the case of any such
acquisition or investment the prior, effective written consent or
approval to such acquisition or investment of the board of directors or
equivalent governing body of the acquiree is obtained and (B)
immediately after giving effect thereto, no Default shall have occurred
and be continuing;
(vi) investments in the Venture Funds, so long as the
aggregate unrecovered investment made therein (not counting recoveries
fairly characterized as income) does not exceed $150,000,000;
(vii) investments existing on the Closing Date
disclosed in Schedule 9.04(e);
(viii) investments consisting of the endorsement of
negotiable instruments for deposit;
(ix) investments (including debt obligations)
received in connection with the bankruptcy or reorganization of
customers or suppliers and in settlement of delinquent obligations of,
and other disputes with, customers or suppliers arising in the ordinary
course of business;
(x) extensions of credit in the ordinary course of
business consisting of (a) compensation of employees, officers and
directors of the Borrower or a Subsidiary, as the case may be, so long
as the board of directors of the Borrower or such Subsidiary determines
that such compensation is in the best interests of the Borrower or such
Subsidiary, (b) travel advances, employee relocation loans and other
employee loans and advances, (c) loans to employees, officers or
directors relating to the purchase of equity securities of the
Borrower, and (d) other loans to officers and employees approved by the
board of directors;
42.
(xi) investments in connection with any Permitted
Receivables Purchase Facility; and
(xii) investments consisting of shares in Tality
Corporation retained by the Borrower resulting from the Tality IPO.
(f) Transactions with Related Parties. Except in
connection with (i) any Permitted Receivables Purchase Facility otherwise
permitted hereunder, or (ii) investments in Alchemy or SpinCircuit or resulting
from the Tality IPO which are otherwise permitted by subsection (e) above, the
Borrower shall not, and shall not permit any of its Material Subsidiaries to,
enter into any transaction, including the purchase, sale or exchange of property
or the rendering of any services, with any Affiliate, any officer or director
thereof or any Person which beneficially owns or holds 5% or more of the equity
securities, or 5% or more of the equity interest, thereof (a "Related Party"),
or enter into, assume or suffer to exist, or permit any Material Subsidiary to
enter into, assume or suffer to exist, any employment or consulting contract
with any Related Party, except a transaction or contract which is in the
ordinary course of the Borrower's or such Material Subsidiary's business and
which, when considered in the aggregate with all such transactions between the
Related Party and the Borrower or such Material Subsidiary, such aggregate
transactions are upon fair and reasonable terms not less favorable to the
Borrower or such Material Subsidiary than it would obtain in a comparable arm's
length transaction (or series of transactions) with a Person not a Related
Party.
(g) Hazardous Substances. The Borrower shall not, and shall
not permit any of its Material Subsidiaries to, use, generate, manufacture,
install, treat, release, store or dispose of any Hazardous Substances, except in
compliance with all applicable Environmental Laws.
(h) Accounting Changes. The Borrower shall not, and shall
not suffer or permit any of its Material Subsidiaries to, (i) make any
significant change in accounting treatment or reporting practices, except as
required or permitted by GAAP, or, in respect of any non-U.S. Subsidiary, as
required or permitted by generally accepted accounting principles as then in
effect in the jurisdiction in which such non-U.S. Subsidiary is located or (ii)
without the prior written consent of the Majority Banks (not to be unreasonably
withheld), change its fiscal year or that of any of its consolidated
Subsidiaries, except to change the fiscal year of a Subsidiary acquired in
connection with a permitted acquisition to conform its fiscal year to the
Borrower's.
ARTICLE X
EVENTS OF DEFAULT
SECTION 10.01 Events of Default. Any of the following events
which shall occur shall constitute an "Event of Default":
(a) Payments. The Borrower shall fail to pay (i) when due
any amount of principal of any Loan or Note, or (ii) within three days after the
date due, any amount of interest on any Loan or Note or any fee or other amount
payable hereunder or under any of the Loan Documents.
43.
(b) Representations and Warranties. Any representation or
warranty by the Borrower under or in connection with the Loan Documents shall
prove to have been incorrect in any material respect when made or deemed made.
(c) Failure by Borrower to Perform Certain Covenants. The
Borrower shall fail to perform or observe any term, covenant or agreement
contained in Section 9.02, subsections (a)(i) or (j) of Section 9.03 or Section
9.04 other than Subsection 9.04(g).
(d) Failure by Borrower to Perform Other Covenants. The
Borrower shall fail to perform or observe any other term, covenant or agreement
contained in this Agreement or any other Loan Document on its part to be
performed or observed and any such failure shall remain unremedied for a period
of 30 days after either (i) a Responsible Officer of the Borrower knew or
reasonably should have known of such failure or (ii) the Borrower receives
written notice thereof by the Agent or any Bank.
(e) Insolvency; Voluntary Proceedings. The Borrower or any
Material Subsidiary (i) generally fails to pay, or admits in writing its
inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) commences any
Insolvency Proceeding with respect to itself; or (iv) takes any action to
effectuate or authorize any of the foregoing; or
(f) Involuntary Proceedings. (i) Any involuntary
Insolvency Proceeding is commenced or filed against the Borrower or any Material
Subsidiary, or any writ, judgment, warrant of attachment, execution or similar
process, is issued or levied against a substantial part of the Borrower's or any
Material Subsidiary's properties, and any such proceeding or petition shall not
be dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60 days
after commencement, filing or levy; (ii) the Borrower or any Material Subsidiary
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Borrower or any Material
Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or other
similar Person for itself or a substantial portion of its property or business;
or
(g) Default Under Other Indebtedness. (i) The Borrower or
any of its Material Subsidiaries shall fail (A) to make any payment of any
principal of, or interest or premium on, any single Indebtedness (other than in
respect of the Loans) having a principal amount (including undrawn committed or
available amounts and including amounts owing to all creditors under any
combined or syndicated credit arrangement) of more than $10,000,000 (or its
equivalent in another currency) when due (whether by scheduled maturity,
required prepayment, acceleration, demand or otherwise) and such failure shall
continue after the applicable grace or notice period, if any, specified in the
agreement or instrument relating to such Indebtedness as of the date of such
failure; or (B) to perform or observe any term, covenant or condition on its
part to be performed or observed under any agreement or instrument relating to
any such Indebtedness, when required to be performed or observed, or any other
event shall occur or condition shall exist under any such agreement or
instrument, and such failure, event or
44.
condition shall continue after the applicable grace or notice period, if any,
specified in such agreement or instrument, if the effect of such failure, event
or condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness; or (ii) any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof; (iii) there occurs under any
Rate Contract an Early Termination Date (as defined in such Rate Contract)
resulting from (A) any event of default under such Rate Contract as to which the
Borrower or any Material Subsidiary is the Defaulting Party (as defined in such
Rate Contract) or (B) any Termination Event (as so defined) as to which the
Borrower or any Material Subsidiary is an Affected Party (as so defined), and,
in either event, the Swap Termination Value owed by the Borrower or such
Material Subsidiary as a result thereof is greater than $10,000,000 (or its
equivalent in another currency).
(h) Judgments. (i) A final judgment or order for the
payment of money in excess of $50,000,000 (or its equivalent in another
currency) which is not fully covered by third-party insurance shall be rendered
against the Borrower or any of its Material Subsidiaries; or (ii) any
non-monetary judgment or order shall be rendered against the Borrower or any
Material Subsidiary which has or would reasonably be expected to have a Material
Adverse Effect; and in each case there shall be any period of 30 consecutive
days during which such judgment continues unsatisfied or during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect.
(i) ERISA. (i) The Borrower or an ERISA Affiliate shall
fail to satisfy its contribution requirements in an amount in excess of
$5,000,000 under Section 412(c)(11) of the Internal Revenue Code, whether or not
it has sought a waiver under Section 412(d) of the Internal Revenue Code; (ii)
in the case of a Termination Event involving the withdrawal from a Pension Plan
of a "substantial employer" (as defined in Section 4001(a)(2) or Section 4062(e)
of ERISA), the Borrower's or an ERISA Affiliate's proportionate share of that
Pension Plan's Unfunded Accrued Benefits is more than $5,000,000; (iii) in the
case of a Termination Event involving the complete or partial withdrawal from a
Multiemployer Plan, the Borrower or an ERISA Affiliate has incurred a withdrawal
liability in an aggregate amount exceeding $5,000,000; (iv) in the case of a
Termination Event not described in clause (ii) or (iii), the Unfunded Accrued
Benefits of the relevant Pension Plan or Plans exceed $5,000,000; (v) a Plan of
the Borrower or an ERISA Affiliate that is intended to be qualified under
Section 401(a) of the Internal Revenue Code shall lose its qualification, and
the loss can reasonably be expected to impose on the Borrower or an ERISA
Affiliate liability (for additional taxes, to Plan participants, or otherwise)
in the aggregate amount of $5,000,000 or more; (vi) the commencement or increase
of contributions to, the adoption of, or the amendment of a Plan by, the
Borrower or an ERISA Affiliate shall result in a net increase in unfunded
liabilities to the Borrower or an ERISA Affiliate in excess of $5,000,000; or
(vii) the occurrence of any combination of events listed in clauses (ii) through
(vi) that involves a net increase in aggregate Unfunded Accrued Benefits and
unfunded liabilities in excess of $5,000,000.
(j) Dissolution, Etc. The Borrower or any of its Material
Subsidiaries shall (i) liquidate, wind up or dissolve (or suffer any
liquidation, wind-up or dissolution), except to the extent expressly permitted
by Section 9.04, (ii) suspend its operations other than in the ordinary
45.
course of business, or (iii) take any corporate or similar action to authorize
any of the actions or events set forth above in this subsection (j).
(k) Subordination Provisions. The subordination provisions of
any agreement or instrument governing any Indebtedness subordinated to the
Obligations shall for any reason be revoked or invalidated, or otherwise cease
to be in full force and effect, any Person shall contest in any manner the
validity or enforceability thereof or deny that it has any further liability or
obligation thereunder, or the Indebtedness hereunder shall for any reason be
subordinated or shall not have the priority contemplated by this Agreement or
such subordination provisions.
(l) Mergers and Acquisitions. The Borrower or any
Subsidiary shall acquire or otherwise merge or consolidate with any Person for
cash consideration (in whole or in part), without the prior, effective written
consent or approval to such acquisition, merger or consolidation of the board of
directors or equivalent governing body of such Person.
SECTION 10.02 Effect of Event of Default. If any Event of
Default shall occur and be continuing, the Agent shall, at the request of, or
may, with the consent of, the Majority Banks, (I) by notice to the Borrower, (A)
declare the Revolving Commitments of the Banks to be terminated, whereupon the
same shall forthwith terminate, and (B) declare the entire unpaid principal
amount of the Loans and the Notes, all interest accrued and unpaid thereon and
all other Obligations to be forthwith due and payable, whereupon the Loans and
the Notes, all such accrued interest and all such other Obligations shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower, provided that if an event described in Sections 10.01(e) or 10.01(f)
shall occur, the result which would otherwise occur only upon giving of notice
by the Agent to the Borrower as specified in this clause (I) shall occur
automatically, without the giving of any such notice; and (II) whether or not
the actions referred to in clause (I) have been taken, proceed to enforce all
other rights and remedies available to the Agent and the Banks under the Loan
Documents and applicable law.
ARTICLE XI
THE AGENT
SECTION 11.01 Authorization and Action. Each Bank hereby
appoints ABN AMRO as Agent and authorizes the Agent to take such action as agent
on its behalf and to exercise such powers and perform such duties under this
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto. The duties and obligations of the Agent are strictly limited to those
expressly provided for herein, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against the Agent. As to any matters not expressly
provided for by the Loan Documents (including enforcement or collection of the
Loan Documents), the Agent shall not be required to exercise any discretion or
take any action, but shall be required to act or to refrain from acting (and
shall be fully protected in so acting or refraining from acting) upon the
instructions of the Majority Banks, and such instructions shall be binding upon
all Banks; provided, however, that except for action expressly required of the
Agent hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act under any Loan Document unless it shall be indemnified to
46.
its satisfaction by the Banks against any and all liability and expense which
may be incurred by reason of taking or continuing to take any such action, and
that the Agent shall not in any event be required to take any action which
exposes the Agent to liability or which is contrary to any Loan Document or
applicable law. Nothing in any Loan Document shall, or shall be construed to,
constitute the Agent a trustee or fiduciary for any Bank. In performing its
functions and duties hereunder, the Agent shall act solely as the agent of the
Banks and does not assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the Borrower. Without
limiting the generality of the foregoing, the use of the term "agent" in this
Agreement and the other Loan Documents with reference to the Agent is not
intended to connote any fiduciary or other implied (or express) obligations
arising under agency doctrine of any applicable law. Instead, such term is used
merely as a matter of market custom, and is intended to create or reflect only
an administrative relationship between independent contracting parties.
SECTION 11.02 Limitation on Liability of Agent; Notices; Closing.
(a) Limitation on Liability of Agent. Neither the Agent
nor any Affiliate thereof nor any of their respective directors, officers,
employees or agents shall be liable for any action taken or omitted to be taken
by it or them under or in connection with any Loan Document, except for its or
their own gross negligence or willful misconduct. Without limitation of the
generality of the foregoing, the Agent (i) may treat a Bank as the holder of its
Loans for all purposes hereof unless and until such Bank and its assignee shall
have delivered to the Agent and the Borrower an Assignment and Acceptance
Agreement substantially in the form of Exhibit F (an "Assignment and
Acceptance"), and the Agent receives written notice of the assignment in
substantially the form of Schedule 1 to the Assignment and Acceptance and the
other conditions to assignment set forth in Section 12.09 shall have been
satisfied; (ii) may consult with legal counsel (including counsel to the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; and
(iii) shall incur no liability to any Bank under or in respect of any Loan
Document by acting upon any notice, consent, certificate, telegram, facsimile,
telex or teletype message, statement or other instrument or writing believed by
it to be genuine and signed or sent by the proper party or parties or by acting
upon any representation or warranty made or deemed to be made hereunder or under
any other Loan Document. Further, the Agent (A) makes no warranty or
representation to any Bank and shall not be responsible to any Bank for the
accuracy or completeness of any information, exhibit or report furnished under
any Loan Document, for any statements, warranties or representations (whether
written or oral) made or deemed made in or in connection with any Loan
Documents; (B) shall have no duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or any other Loan Document on the part of the Borrower or any other
Person or to inspect the property, books or records of the Borrower or any other
Person; and (C) shall not be responsible to any Bank for the due execution,
legality, validity, enforceability, genuineness, sufficiency, value or
collectibility of this Agreement or any other Loan Document or of any
collateral.
(b) Notices. Promptly upon receipt thereof, the Agent shall
forward to each Bank originals or copies, as specified in this Agreement or any
other Loan Document, of all agreements, instruments, opinions, financial
statements, notices and other documents delivered
47.
by the Borrower or any other Person to the Agent pursuant to any Loan Document
for distribution to the Banks. Except for any of the foregoing expressly
required to be furnished to the Banks by the Agent hereunder, the Agent shall
not have any duty or responsibility to provide any Bank with any credit or other
information concerning the business, operations, property, condition (financial
or otherwise), prospects or creditworthiness of the Borrower which may come into
the possession of the Agent or any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates.
(c) Closing. For purposes of determining compliance with
the conditions specified in Section 7.01, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent (or made available) by
the Agent to such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank, unless an officer of the Agent responsible for the
transactions contemplated by the Loan Documents shall have received notice from
such Bank prior to the Closing Date specifying its objection thereto and either
such objection shall not have been withdrawn by notice to the Agent to that
effect on or prior to the Closing Date or, if any Borrowing on the Closing Date
has been requested, the Bank shall not have made available to the Agent on or
prior to the Closing Date the Bank's Pro Rata Share of any Borrowing.
SECTION 11.03 Agent and Affiliates. With respect to its
Revolving Commitment, the Loans made by it, the Notes issued to it and all other
Obligations owing to it as a Bank, the Agent shall have the same rights and
powers under the Loan Documents as any other Bank and may exercise the same as
though it were not the Agent; and the term "Bank" or "Banks" shall, unless
otherwise expressly indicated, include the Agent in its individual capacity. The
Agent and its Affiliates may accept deposits from, lend money to, act as trustee
under indentures of and generally engage in any kind of business with the
Borrower, and any Affiliate thereof, all as if the Agent were not the Agent
hereunder and without any duty to account therefor to the Banks.
SECTION 11.04 Notice of Defaults. The Agent shall not be
deemed to have knowledge or notice of the occurrence of a Default hereunder
(other than nonpayment of principal of or interest on the Loans or of any fees
or any of its costs and expenses) unless the Agent has actual knowledge thereof
or has received notice in writing from a Bank or the Borrower referring to this
Agreement, describing such event or condition and expressly stating that such
notice is a "notice of default." Should the Agent receive such notice of the
occurrence of a Default, the Agent shall promptly give notice thereof to the
Banks. The Agent thereupon shall take such action with respect to such Default
as shall be reasonably directed by the Majority Banks; provided that, unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable in the best interests of the
Banks.
SECTION 11.05 Non-Reliance on Agent. Each Bank has itself
been, and will continue to be, based on such documents and information as it has
deemed appropriate, solely responsible for making its own independent appraisal
of and investigations into the financial condition, creditworthiness, condition,
affairs, status and nature of the Borrower or any of its Subsidiaries.
Accordingly, each Bank confirms to the Agent that it has not relied, and will
not hereafter rely, on the Agent (I) to check or inquire on such Bank's behalf
into the adequacy,
48.
accuracy or completeness of any information provided by the Borrower or any
other Person under or in connection with the Loan Documents or the transactions
herein contemplated (whether or not such information has been or is hereafter
distributed to such Bank by the Agent), or (II) to assess or keep under review
on such Bank's behalf the financial condition, creditworthiness, condition,
affairs, status or nature of the Borrower or any Subsidiary.
SECTION 11.06 Indemnification. The Banks agree to indemnify
the Agent, and any Affiliates, directors, officers, employees, agents, counsel
and other advisors (collectively, the "Related Persons") of the Agent (to the
extent not reimbursed by the Borrower), ratably in accordance with the
respective Pro Rata Shares of the Banks, against and hold each of them harmless
from any and all liabilities, obligations, losses, claims, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever, including the reasonable fees and disbursements of counsel to
the Agent (including allocated costs of internal counsel), which may be imposed
on, incurred by, or asserted against the Agent or any such Related Person to be
indemnified, in any way relating to or arising out of the Loan Documents, the
use or intended use of the proceeds of the Loans or the transactions
contemplated hereby or thereby or any action taken or omitted by the Agent or
other such Related Person to be indemnified in connection with any of the
foregoing; provided that no Bank shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements to the extent they are found by a final
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Agent, or any other Related Person to be
indemnified.
SECTION 11.07 Delegation of Duties. The Agent may, in its
discretion, employ from time to time one or more agents or attorneys-in-fact
(including any of the Agent's Affiliates) to perform any of the Agent's duties
under the Loan Documents. The Agent shall not be responsible for the negligence
or misconduct of any agents or attorneys-in-fact selected by it with reasonable
care.
SECTION 11.08 Successor Agent. Subject to the appointment and
acceptance of a successor Agent as provided below, the Agent may resign at any
time by giving 90 days' written notice thereof to the Banks and the Borrower.
Upon any such resignation, the Borrower shall have the right to appoint a
successor Agent from among the Banks, with the consent of the Majority Banks
(which shall not be unreasonably withheld), and the Borrower and the Banks shall
use their best efforts so to appoint a successor Agent. If no successor Agent
shall have been so appointed by the Borrower and the Majority Banks, and shall
have accepted such appointment, prior to the effective date of the retiring
Agent's resignation, the retiring Agent may, on behalf of the Banks, appoint a
successor Agent from among the Banks. Upon the effectiveness of the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges, duties and obligations of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under the Loan Documents.
After any retiring Agent's resignation hereunder as Agent, the provisions of
this Article XI shall inure to its benefit as to any actions taken or omitted to
be taken by it while it was Agent under the Loan Documents.
SECTION 11.09 Co-Agents. None of the Banks identified on the
facing page or signature pages of this Agreement as a "co-agent" shall have any
right, power, obligation,
49.
liability, responsibility or duty under this Agreement other than those
applicable to all Banks as such. Without limiting the foregoing, none of the
Banks so identified as a "co-agent" shall have or be deemed to have any
fiduciary relationship with any Bank. Each Bank acknowledges that it has not
relied, and will not rely, on any of the Banks so identified in deciding to
enter into this Agreement or in taking or not taking action hereunder.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01 Amendments and Waivers. Except as otherwise
provided herein or in any other Loan Document, (I) no amendment to any provision
of this Agreement or any of the other Loan Documents shall in any event be
effective unless the same shall be in writing and signed by the Borrower, the
Agent and the Majority Banks (or the Agent with the written consent of the
Majority Banks); and (II) no waiver of any provision of this Agreement or any
other Loan Document, or consent to any departure by the Borrower, shall in any
event be effective unless the same shall be in writing and signed by the Agent
and the Majority Banks (or the Agent with the consent of the Majority Banks).
Any such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given; provided, however, that,
notwithstanding the foregoing provisions of this Section 12.01, any term or
provision of Article XI (other than the provisions of Section 11.08 pertaining
to Borrower consent) may be amended without the agreement or consent of, or
prior notice to, the Borrower; and provided further, however, that, unless in
writing and signed by all of the Banks (or by the Agent with the written consent
of all the Banks), no amendment, waiver or consent shall do any of the
following:
(A) increase the amount, or extend the
stated expiration or termination date, of the Revolving
Commitments of the Banks (or any of them), except as otherwise
provided in subsection 4.01(c) with respect to the extension
of the Revolving Termination Date as provided therein;
(B) reduce the principal of, or interest on,
the Loans or any fee or other amount payable to the Banks (or
any of them) hereunder;
(C) postpone any date fixed for any payment
in respect of principal of, or interest on, the Loans or any
fee or other amount payable to the Banks (or any of them)
hereunder;
(D) change the definition of "Majority
Banks" or any definition or provision of this Agreement
requiring the approval of Majority Banks or some other
specified amount of Banks;
(E) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under the
Loan Documents;
(F) waive any of the conditions specified in
Article VII;
(G) amend, modify or waive the provisions of
Section 6.01, 6.05 or 12.07; or
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(H) amend, modify or waive the provisions of
this Section 12.01; and
provided, further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Banks required hereinabove to
take such action, affect the rights, obligations or duties of the Agent under
any Loan Document, and (ii) the Fee Letter may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto.
SECTION 12.02 Notices.
(a) Notices. All notices and other communications provided
for hereunder and under the other Loan Documents shall, unless otherwise stated
herein, be in writing (including by facsimile transmission followed by a
telephone call by the sender to confirm receipt by the recipient party) and
mailed, sent or delivered to the respective parties hereto at or to their
respective addresses or facsimile numbers set forth in Schedule 2, or at or to
such other address or facsimile number as shall be designated by any party in a
written notice to the other parties hereto. All such notices and communications
shall be effective (i) if delivered by hand, when delivered; (ii) if sent by
mail, upon the earlier of the date of receipt and five Business Days after
deposit in the mail, first class (or air mail, with respect to communications to
be sent to or from the United States), postage prepaid; and (iii) if sent by
facsimile transmission, upon verbal confirmation of receipt by the recipient
party; provided, however, that notices and communications to the Agent shall not
be effective until received.
(b) Facsimile and Telephonic Notice. The Borrower acknowledges
and agrees that the agreement of the Agent and the Banks herein and in any other
Loan Document to receive certain notices by telephone and facsimile is solely
for the convenience and at the request of the Borrower. The Agent and the Banks
shall be entitled to rely on the authority of any Person purporting to be a
Person authorized by the Borrower to give such notice and the Agent and the
Banks shall not have any liability to the Borrower or any other Person on
account of any action taken or not taken by the Agent and the Banks in reliance
upon such telephonic or facsimile notice. The obligation of the Borrower to
repay the Loans and the other Obligations shall not be affected in any way or to
any extent by any failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agent
and the Banks of a confirmation which is at variance with the terms understood
by the Agent and the Banks to be contained in the telephonic or facsimile
notice.
SECTION 12.03 No Waiver; Cumulative Remedies. No failure on
the part of the Agent or any Bank to exercise, and no delay in exercising, any
right, remedy, power or privilege under any Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
remedy, power or privilege preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights and remedies
under the Loan Documents are cumulative and not exclusive of any rights,
remedies, powers and privileges that may otherwise be available to the Agent or
any Bank.
SECTION 12.04 Costs and Expenses; Indemnification.
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(a) Costs and Expenses. The Borrower agrees to pay not
later than 30 days after written demand therefor, including a statement of
account, whether or not the transactions contemplated hereby shall be
consummated:
(i) the reasonable out-of-pocket costs and expenses
of the Agent and any of its Affiliates, and the reasonable fees and
disbursements of outside counsel to the Agent, in connection with the
negotiation, preparation, execution, delivery and syndication of the
Loan Documents, and any amendments, modifications or waivers requested
by the Borrower of the terms thereof; and
(ii) all costs and expenses of the Agent, its
Affiliates and the Banks, and fees and disbursements of counsel
(including allocated costs of internal counsel), in connection with (a)
any Default, (b) the enforcement or attempted enforcement of, and
preservation of any rights or interests under, the Loan Documents, and
(c) any out-of-court workout or other refinancing or restructuring or
any bankruptcy case, including any losses, costs and expenses sustained
by the Agent and any Bank as a result of any failure by the Borrower to
perform or observe its obligations contained in the Loan Documents.
(b) Indemnification. Whether or not the transactions
contemplated hereby shall be consummated, the Borrower hereby agrees to
indemnify the Agent, each Bank and any Related Person thereof (each an
"Indemnified Person") against, and hold each of them harmless from, any and all
liabilities, obligations, losses, claims, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including the reasonable fees and disbursements of counsel to an
Indemnified Person (including allocated costs of internal counsel), which may be
imposed on, incurred by, or asserted against any Indemnified Person, (i) in any
way relating to or arising out of any of the Loan Documents, the use or intended
use of the proceeds of the Loans, or the transactions contemplated hereby, (ii)
with respect to any investigation, litigation or other proceeding relating to
any of the foregoing, irrespective of whether the Indemnified Person shall be
designated a party thereto, or (iii) in any way relating to or arising out of
the use, generation, manufacture, installation, treatment, storage or presence,
or the spillage, leakage, leaching, migration, dumping, deposit, discharge,
disposal or release, at any time, of any Hazardous Substances on, under, at or
from any Premises, including any personal injury or property damage suffered by
any Person, and any investigation, site assessment, environmental audit,
feasibility study, monitoring, clean-up, removal, containment, restoration,
remedial response or remedial work undertaken by or on behalf of the any
Indemnified Person at any time, voluntarily or involuntarily, with respect to
the Premises (the "Indemnified Liabilities"); provided that the Borrower shall
not be liable to any Indemnified Person for any portion of such Indemnified
Liabilities to the extent they are found by a final decision of a court of
competent jurisdiction to have resulted from such Indemnified Person's gross
negligence or willful misconduct. Subject to the preceding proviso, if and to
the extent that the foregoing indemnification is for any reason held
unenforceable, the Borrower agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law.
(c) Other Charges. The Borrower agrees to indemnify the
Agent and each of the Banks against and hold each of them harmless from any and
all present and future stamp, transfer, documentary and other such taxes,
levies, fees, assessments and other charges made by
52.
any jurisdiction by reason of the execution, delivery, performance and
enforcement of the Loan Documents.
SECTION 12.05 Right of Set-Off. Upon the occurrence and during
the continuance of any Event of Default, each Bank hereby is authorized, to the
extent permitted by applicable statute, at any time and from time to time,
without notice to the Borrower (any such notice being expressly waived by the
Borrower), to set off and apply any and all deposits (general or special, time
or demand, provisional or final) at any time held and other indebtedness at any
time owing by such Bank to or for the credit or the account of the Borrower
against any and all of the Obligations of the Borrower now or hereafter existing
under this Agreement and the other Loan Documents, irrespective of whether or
not such Bank shall have made any demand under this Agreement or any such other
Loan Document and although such Obligations may be unmatured. Each Bank agrees
promptly to notify the Borrower (through the Agent) after any such set-off and
application made by such Bank; provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of
each Bank under this Section 12.05 are in addition to other rights and remedies
(including other rights of set-off) which such Bank may have.
SECTION 12.06 Survival. All covenants, agreements,
representations and warranties made in any Loan Documents shall, except to the
extent otherwise provided therein, survive the execution and delivery of this
Agreement, the making of the Loans and the execution and delivery of the Notes,
and shall continue in full force and effect so long as the Banks have any
Revolving Commitments, any Loans remain outstanding or any other Obligations
remain unpaid or any obligation to perform any other act under any Loan Document
remains unsatisfied. Without limiting the generality of the foregoing, the
obligations of the Borrower under Sections 5.02, 5.03, 6.03 and 12.04, and of
the Banks under Sections 6.03 and 11.06, and all similar obligations under the
other Loan Documents (including all obligations to pay costs and expenses and
all indemnity obligations), shall survive the repayment of the Loans and the
termination of the Revolving Commitments.
SECTION 12.07 Obligations Several. The obligations of the
Banks under the Loan Documents are several. The failure of any Bank or the Agent
to carry out its obligations thereunder shall not relieve any other Bank or the
Agent of any obligation thereunder, nor shall any Bank or the Agent be
responsible for the obligations of, or any action taken or omitted by, any other
Person hereunder or thereunder. Nothing contained in any Loan Document shall be
deemed to cause any Bank or the Agent to be considered a partner of or joint
venturer with any other Bank or Banks, the Agent or the Borrower.
SECTION 12.08 Benefits of Agreement. The Loan Documents are
entered into for the sole protection and benefit of the parties hereto and their
successors and assigns, and no other Person other than Affiliates of the Agent
and the Related Persons referred to in Sections 11.06, 12.04 and 12.14 shall be
a direct or indirect beneficiary of, or shall have any direct or indirect cause
of action or claim in connection with, any Loan Document.
SECTION 12.09 Binding Effect; Assignment.
53.
(a) Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and the Agent and when the
Agent shall have been notified by each Bank that such Bank has executed it and
thereafter shall be binding upon, inure to the benefit of and be enforceable by
the Borrower, the Agent and each Bank and their respective successors and
assigns.
(b) Assignment. The Borrower shall not have the right to
assign its rights and obligations hereunder or under the other Loan Documents or
any interest herein or therein without the prior written consent of the Banks.
Each Bank may sell, assign, transfer or grant participations in all or any
portion of such Bank's rights and obligations hereunder and under the other Loan
Documents to any Bank or Eligible Assignee on the basis set forth below in this
subsection (b).
(i) Any Bank may, with the written consent of the
Borrower and the Agent (which in each case shall not be unreasonably
withheld), at any time assign and delegate to one or more Eligible
Assignees all, or any ratable part of all, of the Revolving Loans and
Revolving Commitment, or the Term Loans, as the case may be, and the
other rights and obligations of such Bank hereunder; provided, however,
that (A) no consent of the Borrower shall be required during the
existence of an Event of Default; (B) no consent of the Borrower or the
Agent shall be required in connection with any assignment and delegation
by a Bank to an Eligible Assignee that is another Bank or an Affiliate
of such Bank; and (C) except in connection with an assignment of all of
a Bank's rights and obligations with respect to its Revolving Commitment
and Loans, any such assignment to an Eligible Assignee that is not a
Bank hereunder shall be equal to or greater than $15,000,000.
(ii) In the event of any such assignment, unless and
until (A) an Assignment and Acceptance and notice of assignment shall
have been delivered pursuant to clause (i) of Section 11.02(a), (B) the
Agent shall have received payment of an administrative transfer charge
in the amount of $3,500 from the assigning Bank (unless the assignee
shall otherwise agree to pay such charge), and (C) the Agent and the
Borrower shall have received all tax forms and documents required under
Section 6.03(d), such assignee shall not be entitled to exercise the
rights of a Bank under this Agreement and the other Loan Documents with
respect to such assignment and the Agent shall not be obligated to make
payment of any amount to which such assignee may become entitled
thereunder other than to the assigning Bank. Subject to satisfaction of
the foregoing conditions in connection with any assignment, upon the
effectiveness of such assignment, the assignee shall be deemed a "Bank"
for all purposes of this Agreement and the other Loan Documents with
respect to the rights and obligations assigned to it, and the assigning
Bank shall, to the extent that rights and obligations hereunder and
under the other Loan Documents have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be released
from its obligations under the Loan Documents; provided, however, that
the assigning Bank shall not relinquish its rights under Article V or
under Sections 6.03 and 12.04 to the extent such rights relate to the
time prior to the effective date of the Assignment and Acceptance.
54.
(iii) In connection with any partial assignment, upon
the request of the assigning Bank or the assignee, (A) the Borrower
shall execute and deliver substitute Notes to the assigning Bank or the
assignee, dated the effective date of such assignment, setting forth
the respective Revolving Commitment, or Term Loans, as the case may be,
of such assigning Bank and assignee as the respective maximum principal
amounts thereof, and containing other appropriate insertions, and the
assigning Bank shall thereupon return the Notes previously held by it;
and (B) Schedules 1 and 2 shall be deemed amended to reflect the
adjustment of the Revolving Commitments and Pro Rata Shares of the
Banks resulting therefrom and the Lending Office, if any, and address
for notices of the assignee.
(iv) In the event of any grant of a participation,
the granting Bank shall remain a "Bank" for purposes of this Agreement,
the Borrower, the other Banks and the Agent shall continue to deal
solely and directly with such Bank in connection with this Agreement and
the other Loan Documents, and no Bank shall transfer or grant any
participating interest under which the participant shall have rights to
approve any amendment to, or any consent or waiver with respect to, this
Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require the consent of the Bank
granting such participation as described in the second proviso to
Section 12.01 or the unanimous consent of all of the Banks as described
in the third proviso to Section 12.01. In the case of any such
participation, the participant shall not have any of the rights of a
Bank under this Agreement or the other Loan Documents, except that the
participant shall (A) be deemed to have a right of setoff under Section
12.05 in respect of its participation to the same extent as if it were a
"Bank" hereunder, provided that such participant shall also be
considered a "Bank" for purposes of Section 6.05; and (B) such
participant shall also be entitled to the benefits of Sections 5.02,
5.03, 6.03 and 12.04, provided that any amounts payable under Sections
5.03 or 6.03 to any participant shall not exceed the amounts which would
have been payable by the Borrower thereunder to the Bank granting such
participation.
(v) The Borrower agrees that in connection with any
such grant or assignment, such Bank may deliver to the prospective
participant or assignee financial statements and other relevant
information relating to the Borrower and its Subsidiaries.
(vi) Each Bank shall obtain from any such prospective
participant or assignee a confidentiality agreement in which such
participant or assignee agrees to an obligation of confidentiality
substantially similar to the terms of Section 12.14.
(vii) Notwithstanding any other provision in this
Agreement, any Bank may at any time create a security interest in, or
pledge, all or any portion of its rights under and interest in this
Agreement and any Note held by it in favor of any Federal Reserve Bank
in accordance with Regulation A of the FRB or U.S. Treasury Regulation
31 CFR Section 203.14, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable
law.
55.
SECTION 12.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
SECTION 12.11 Submission to Jurisdiction.
(a) Submission to Jurisdiction. The Borrower hereby (i)
submits to the non-exclusive jurisdiction of the courts of the State of
California and the Federal courts of the United States sitting in the State of
California for the purpose of any action or proceeding arising out of or
relating to the Loan Documents, (ii) agrees that all claims in respect of any
such action or proceeding may be heard and determined in such courts, (iii)
irrevocably waives (to the extent permitted by applicable law) any objection
which it now or hereafter may have to the laying of venue of any such action or
proceeding brought in any of the foregoing courts, and any objection on the
ground that any such action or proceeding in any such court has been brought in
an inconvenient forum and (iv) agrees that 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 permitted by law.
(b) No Limitation. Nothing in this Section 12.11 shall
limit the right of the Agent or the Banks to bring any action or proceeding
against the Borrower or its property in the courts of other jurisdictions.
SECTION 12.12 Waiver of Jury Trial. THE BORROWER, THE BANKS
AND THE AGENT HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY
OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE BANKS AND THE
AGENT HEREBY AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT IN ANY WAY LIMITING THE FOREGOING, THE
PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED
BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM, OR OTHER PROCEEDING
WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF
THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF.
THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS. A COPY OF THIS
SECTION 12.12 MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE WAIVER OF
THE RIGHT TO TRIAL BY JURY AND CONSENT TO TRIAL BY COURT.
SECTION 12.13 Limitation on Liability. No claim shall be made
by the Borrower or its Affiliates against the Agent, the Banks or any of their
respective Related Persons for any
56.
special, indirect, exemplary, consequential or punitive damages in respect of
any breach or wrongful conduct (whether or not the claim therefor is based on
contract, tort or duty imposed by law), in connection with, arising out of or in
any way related to the transactions contemplated by the Loan Documents or any
act or omission or event occurring in connection therewith; and the Borrower
hereby waives, releases and agrees not to xxx upon any such claim for any such
damages, whether or not accrued and whether or not known or suspected to exist
in its favor.
SECTION 12.14 Confidentiality. Each Bank and the Agent shall
hold all non-public information relating to the Borrower and its Subsidiaries
obtained by it under this Agreement in accordance with its customary procedures
for handling confidential information of this nature, except for: (i) disclosure
to its Affiliates or to its counsel or to any agent or advisor acting on its
behalf in connection with the negotiation, execution or performance of the Loan
Documents; (ii) disclosure as reasonably required in connection with a transfer
to a prospective assignee or participant of all or part of its Loans or
Revolving Commitment or any participation therein, as provided in Section
12.09(b); (iii) disclosure as may be required or requested by any Governmental
Authority or representative thereof or pursuant to legal process; (iv)
disclosure to any Person and in any proceeding necessary in such Bank's or the
Agent's judgment to protect its interests in connection with any claim or
dispute involving such Bank or the Agent; and (v) any other disclosure with the
prior written consent of the Borrower. Prior to any disclosure by any Bank or
the Agent of such non-public information permitted under clause (iii) (other
than in connection with an examination of the financial condition of such Bank,
the Agent or any of their Affiliates by any Governmental Authority), it shall,
if permitted by applicable laws or judicial order, notify the Borrower of such
pending disclosure. In no event shall any Bank or the Agent be obligated or
required to return any materials furnished by the Borrower or its Subsidiaries.
Notwithstanding the foregoing, such obligation of confidentiality shall not
apply if the information or substantially similar information (a) is rightfully
received by any Bank or the Agent from a Person other than the Borrower or any
of its Affiliates without such Bank or the Agent being under an obligation to
such Person not to disclose such information, or (b) is or becomes part of the
public domain.
SECTION 12.15 Entire Agreement. The Loan Documents reflect the
entire agreement among the Borrower, the Banks and the Agent with respect to the
matters set forth herein and therein and supersede any prior agreements,
Revolving Commitments, drafts, communications, discussions and understandings,
oral or written, with respect thereto.
SECTION 12.16 Severability. Whenever possible, each provision
of the Loan Documents shall be interpreted in such manner as to be effective and
valid under all applicable laws and regulations. If, however, any provision of
any of the Loan Documents shall be prohibited by or invalid under any such law
or regulation in any jurisdiction, it shall, as to such jurisdiction, be deemed
modified to conform to the minimum requirements of such law or regulation, or,
if for any reason it is not deemed so modified, it shall be ineffective and
invalid only to the extent of such prohibition or invalidity without affecting
the remaining provisions of such Loan Document, or the validity or effectiveness
of such provision in any other jurisdiction.
SECTION 12.17 Counterparts This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so
57.
executed shall be deemed to be an original and all of which taken together shall
constitute but one and the same agreement.
SECTION 12.18 Effect of Amendment. This Agreement is intended
to amend the Existing Credit Agreement and, solely for convenience of reference,
to restate it. The Borrower hereby acknowledges, certifies and agrees that, with
respect to the "Loans" outstanding under and as defined in the Existing Credit
Agreement as of the Closing Date, the Borrower's obligation to repay such loans
to the Banks shall continue and constitute Revolving Loans under and subject to
the terms and provisions of this Agreement and shall initially be deemed Base
Rate Loans or Eurodollar Rate Loans hereunder to the same extent as under the
Existing Credit Agreement on the Closing Date. All outstanding Notes under the
Existing Credit Agreement (i) shall be superseded and replaced by the Notes
delivered under this Agreement; and (ii) will be deemed cancelled upon the
occurrence of the Closing Date. Furthermore, the Borrower hereby reaffirms the
validity and binding effect of all documents and agreements executed and
delivered pursuant to the Existing Credit Agreement, some or all of which have
been amended pursuant to this Agreement.
SECTION 12.19 Certain Transitional Matters. On the Closing
Date, the amount of "Revolving Loans" then outstanding under and as defined in
the Existing Credit Agreement and held by each "Bank" under and as defined in
the Existing Credit Agreement shall be adjusted to reflect the changes in the
Banks' Revolving Commitments and Pro Rata Shares under this Agreement as set
forth in Schedule 1, subject to Section 5.02. Each "Bank" having "Revolving
Loans" then outstanding and whose "Pro Rata Share" under and as defined in the
Existing Credit Agreement has been decreased on the Closing Date as a result of
this Agreement shall be deemed to have assigned on the Closing Date, without
recourse, to each "Bank" increasing its "Revolving Commitment" under and as
defined in the Existing Credit Agreement such portion of such "Revolving Loans"
as shall be necessary to effectuate such adjustment. Each Bank increasing its
"Revolving Commitment" on the Closing Date as a result of this Agreement shall
(i) be deemed to have assumed such portion of such "Revolving Loans" and (ii)
fund on the Closing Date such assumed amounts to the Agent for the account of
the assigning "Bank" in accordance with the provisions hereof in the amount
notified to such increasing "Bank" by the Agent.
[SIGNATURE PAGES FOLLOW.]
58.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement, as of the date first above written.
THE BORROWER
CADENCE DESIGN SYSTEMS, INC.
By
------------------------------------
Name:
Title:
THE AGENT
ABN AMRO BANK N.V., AS AGENT
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
THE BANKS
ABN AMRO BANK N.V., AS A BANK
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION
By
------------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By
------------------------------------
Name:
Title:
UBS AG, STAMFORD BRANCH
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
BARCLAYS BANK PLC
By
------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By
------------------------------------
Name:
Title:
FLEET NATIONAL BANK
By
------------------------------------
Name:
Title:
MELLON BANK, N.A.
By
------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By
------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By
------------------------------------
Name:
Title:
XXXXX FARGO BANK,
NATIONAL ASSOCIATION
By
------------------------------------
Name:
Title:
By
------------------------------------
Name:
Title:
THE FUJI BANK LIMITED
By
------------------------------------
Name:
Title:
ATTACHMENT A
Permitted Receivables Purchase Facilities
1. Purchase and Sale Program Agreement executed and delivered
as of February 25, 1998, by and among Cadence Design Systems, Inc., a Delaware
corporation ("Seller"), Cadence Design Systems, Inc., a Delaware corporation
(solely in its capacity as the servicer of the Contracts thereunder,
"Servicer"), and BancBoston Leasing Inc., a Massachusetts corporation
("BancBoston"), as supplemented by that certain Addendum to Purchase and Sale
Program Agreement executed and delivered as of December 31, 1998, by and among
Cadence Design Systems, Inc., a Delaware corporation (in its individual capacity
"Cadence Design"), Servicer, Cadence Credit Corporation, a Delaware corporation
("Cadence Credit"), Cadence Receivables Consolidation Corporation, a Delaware
corporation and BancBoston.
2. Amended and Restated Purchase and Sale Program Agreement
executed and delivered as of March 19, 1999, by and among Cadence Design
Systems, Inc., a Delaware corporation ("Cadence Design"), Cadence Credit
Corporation, a Delaware corporation, ("Cadence Credit"), Cadence Credit
Corporation, a Delaware corporation (solely in its capacity as the servicer of
the Contracts thereunder, "Servicer"), and Bane One Leasing Corporation, an Ohio
corporation ("Banc One"), as supplemented by that certain Addendum to Amended
and Restated Purchase and Sale Program Agreement executed and delivered as of
March 19, 1999, by and among Cadence Design, Cadence Credit, Servicer, Cadence
Receivables Consolidation Corporation, a Delaware corporation, and Banc one.
3. Purchase and Sale Program Agreement executed and delivered
as of January 18, 1999, by and among Cadence Design Systems, Inc., a Delaware
corporation ("Cadence Design"), Cadence Credit Corporation, a Delaware
corporation, ("Cadence Credit"), Servicer, and Dresdner Kleinwort Xxxxxx North
America Leasing, Inc. ("Dresdner"), as supplemented by that certain Addendum to
Purchase and Sale Program Agreement executed and delivered as of April 21, 1999,
by and among Cadence Design, Cadence Credit Servicer, Cadence Receivables
Consolidation Corporation, a Delaware corporation ("Cadence Consolidation"), and
Dresdner.
4. Amended and Restated Purchase and Sale Program Agreement
executed and delivered as of December 31, 1998, by and among Cadence Design
Systems, Inc., a Delaware corporation ("Cadence Design"), Cadence Credit
Corporation, a Delaware corporation, ("Cadence Credit"), Cadence Credit
Corporation, a Delaware corporation (solely in its capacity as the servicer of
the Contracts thereunder, "Servicer"), and Sanwa Business Credit Corporation, a
Delaware corporation ("Sanwa"), as supplemented by that certain Addendum to
Amended and Restated Purchase and Sale Program Agreement executed and delivered
as of December 31, 1998, by and among Cadence Design, Cadence Credit, Servicer,
Cadence Receivables Consolidation Corporation, a Delaware corporation ("Cadence
Consolidation"), and Sanwa.
5. Purchase and Sale Program Agreement executed and delivered
as of March 24, 1999, by and among Cadence Design Systems, Inc., a Delaware
corporation ("Cadence Design, Cadence Credit Corporation, a Delaware
corporation, ("Cadence Credit"), Cadence Credit Corporation, a Delaware
corporation (solely in its capacity as the servicer of the
Attachment A-1
Contracts thereunder, "Servicer", and Xxxxxx Financial Leasing, Inc., a Delaware
corporation ("Xxxxxx"), as supplemented by that certain Addendum to Purchase and
Sale Program Agreement executed and delivered as of March 24, 1999, by and among
Cadence Design, Cadence Credit, Servicer, Cadence Receivables Consolidation
Corporation, a Delaware corporation, and Xxxxxx.
6. Purchase and Sale Program Agreement executed and delivered
as of March 29, 1999, by and among Cadence Design Systems, Inc., a Delaware
corporation ("Cadence Design"), Cadence Credit Corporation, a Delaware
corporation, ("Cadence Credit"), Cadence Credit Corporation, a Delaware
corporation (solely in its capacity as the servicer of the Contracts thereunder,
"Servicer"), and Hitachi Credit America Corp., a Delaware corporation
("Hitachi"), as supplemented by that certain Addendum to Purchase and Sale
Program Agreement executed and delivered as of March 29, 1999, by and among
Cadence Design, Cadence Credit, Servicer, Cadence Receivables Consolidation
Corporation, a Delaware corporation, and Hitachi.
7. Purchase and Sale Program Agreement and amendment thereto
executed and delivered as of December 1, 1998, by and among Cadence Design
Systems, Inc., a Delaware corporation, Cadence Design Systems, Inc., a Delaware
corporation (solely in its capacity as the servicer of the Contracts
thereunder), and International Software Finance Corporation, a Delaware
corporation.
8. Purchase and Sale Program Agreement executed and delivered
as of April 16, 1999, by and among Cadence Design Systems, Inc., a Delaware
corporation ("Cadence Design"), Cadence Credit Corporation, a Delaware
corporation, ("Cadence Credit"), Cadence Credit Corporation, a Delaware
corporation (solely in its capacity as the servicer of the Contracts thereunder,
"Servicer"), and Leasetec Corporation, a Delaware corporation ("Leasetec"), as
supplemented by that certain Addendum to Purchase and Sale Program Agreement
executed and delivered as of April 16, 1999, by and among Cadence Design,
Cadence Credit, Servicer, Cadence Receivables Consolidation Corporation, a
Delaware corporation, and Leasetec.
9. Amended and Restated Purchase and Sale Program Agreement
executed and delivered as of May 21, 1999, by and among Cadence Design Systems,
Inc., a Delaware corporation ("Cadence Design"), Cadence Credit Corporation, a
Delaware corporation, ("Cadence Credit"), Cadence Credit Corporation, a Delaware
corporation (solely in its capacity as the servicer of the Contracts thereunder,
"Servicer"), and Mellon US Leasing, a division of Mellon Leasing Corporation, a
Pennsylvania corporation ("Mellon"), as supplemented by that certain Addendum to
Amended and Restated Purchase and Sale Program executed and delivered as of May
21, 1999, by and among Cadence Design, Cadence Credit, Servicer, Cadence
Receivables Consolidation Corporation, a Delaware corporation, and Mellon.
10. Amended and Restated Purchase and Sale Program executed
and delivered as of March 12, 1999, by and among Cadence Design Systems, Inc., a
Delaware corporation ("Cadence Design"), Cadence Credit Corporation, a Delaware
corporation, ("Cadence Credit"), Cadence Credit Corporation, a Delaware
corporation (solely in its capacity as the servicer of the Contracts thereunder,
"Servicer"), and Prime Leasing, Inc., an Illinois corporation ("Prime Leasing"),
as supplemented by that certain Addendum to Amended and Restated Purchase and
Sale Program Agreement executed and delivered as of March 12, 1999, by and among
Cadence
Attachment A-2
Design, Cadence Credit, Servicer, Cadence Receivables Consolidation Corporation,
a Delaware corporation, and Prime Leasing.
11. Purchase and Sale Program Agreement s executed and
delivered as of March 31, 1999, by and among Cadence Design Systems, Inc., a
Delaware corporation ("Cadence Design"), Cadence Credit Corporation, a Delaware
corporation, ("Cadence Credit"), Cadence Credit Corporation, a Delaware
corporation (solely in its capacity as the servicer of the Contracts thereunder,
"Servicer"), and Siemens Credit Corporation, a Delaware corporation ("Siemens"),
as supplemented by that certain Addendum to Purchase and Sale Program Agreement
executed and delivered as of March 31, 1999, by and among Cadence Design,
Cadence Credit, Servicer, Cadence Receivables Consolidation Corporation, a
Delaware corporation, and Siemens.
12. Purchase and Sale Program Agreement executed and delivered
as of June 24, 1998, by and among Cadence Design Systems, Inc., a Delaware
corporation, Cadence Design Systems, Inc., a Delaware corporation (solely in its
capacity as the servicer of the Contracts thereunder), and Software Lease
Finance Group, Inc., a California corporation.
13. Purchase and Sale Program Agreement (United Kingdom)
executed and delivered as of June 30, 2000, by and between Cadence Design
Systems Limited ("Sellee") and Leasetec UK Limited ("Purchaser").
14. Receivables Sale Agreement dated as of September 30, 1998,
among Cadence Receivables Corporation, Cadence Credit Corporation, Cadence
Design Systems, Inc., Windmill Funding Corporation, the liquidity providers from
time to time party thereto, and ABN AMRO Bank N.V., as the enhancer and the
agent, together with the other agreements in connection therewith.
Attachment A-3
ANNEX I
PRICING GRID
The Applicable Margin and the Applicable Fee Amount, for any
day, shall be the amount per annum set forth below based on the Fixed Charge
Coverage Ratio set forth in the Compliance Certificate most recently delivered
by the Borrower to the Agent pursuant to Section 9.01(a)(iii) (or Section
7.01(f), as the case may be) of the Credit Agreement; changes in the Applicable
Margin and the Applicable Fee Amount resulting from a change in the Fixed Charge
Coverage Ratio shall become effective on the earlier of: (i) the date of
delivery by the Borrower to the Agent of a new Compliance Certificate and
accompanying financial statements pursuant to Section 9.01(a)(iii); and (ii) the
date on which the Borrower is required to deliver such new Compliance
Certificate and accompanying financial statements pursuant to Section
9.01(a)(iii) (such date, the "Compliance Date"). If the Borrower shall fail to
deliver a Compliance Certificate and accompanying financial statements within
the number of days after the end of any fiscal quarter or fiscal year as
required pursuant to Section 9.01(a)(iii) (without giving effect to any grace
period), the parties agree that the Applicable Margin and the Applicable Fee
Amount shall be adjusted retroactively to the Compliance Date upon the Agent's
receipt of the applicable Compliance Certificate and accompanying financial
statements pursuant to Section 9.01(a)(iii).
=======================================================================================================================
EURODOLLAR RATE
LEVEL FIXED CHARGE COVERAGE RATIO SPREAD COMMITMENT FEE UTILIZATION FEE
=======================================================================================================================
Level 1 less than or equal to 2.00 1.500% 0.225% .250%
-----------------------------------------------------------------------------------------------------------------------
Level 2 greater than 2.00 but less than or equal to
3.00 1.375% 0.225% .250%
-----------------------------------------------------------------------------------------------------------------------
Level 3 greater than 3.00 1.250% 0.225% .250%
=======================================================================================================================
Annex I-1
SCHEDULE 1
REVOLVING COMMITMENTS
AND PRO RATA SHARES
=========================================================================================================
BANK REVOLVING COMMITMENT PRO RATA SHARE
---------------------------------------------------------------------------------------------------------
ABN AMRO Bank N.V. $35,714,285.710 13.73626373%
---------------------------------------------------------------------------------------------------------
Fleet National Bank $32,857,142.860 12.63736264%
---------------------------------------------------------------------------------------------------------
KeyBank National Association $28,571,428.570 10.98901099%
---------------------------------------------------------------------------------------------------------
UBS AG, Stamford Branch $28,571,428.570 10.98901099%
---------------------------------------------------------------------------------------------------------
U.S. Bank National Association $25,000,000.000 9.61538462%
---------------------------------------------------------------------------------------------------------
The Bank of Nova Scotia $22,857,142.860 8.79120879%
---------------------------------------------------------------------------------------------------------
Barclays Bank PLC $21,428,571.430 8.24175824%
---------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank $20,000,000.000 7.69230769%
---------------------------------------------------------------------------------------------------------
Xxxxx Fargo Bank, National Association $17,857,142.860 6.86813187%
---------------------------------------------------------------------------------------------------------
Mellon Bank, N.A. $14,285,714.290 5.49450550%
---------------------------------------------------------------------------------------------------------
The Fuji Bank, Limited $7,142,857.140 2.74725275%
---------------------------------------------------------------------------------------------------------
The Industrial Bank of Japan, Limited $5,714,285.710 2.19780220%
---------------------------------------------------------------------------------------------------------
$260,000,000.000 100.00000000%
=========================================================================================================
Schedule 1-1
