Exhibit 10.54
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 11, 1999, is entered into by and among:
(1) ADOBE SYSTEMS INCORPORATED, a Delaware corporation ("Borrower");
(2) Each of the financial institutions from time to time listed in Schedule I hereto, as amended from time to time (such
financial institutions to be referred to herein collectively as "Lenders");
(3) ABN AMRO BANK N.V., as agent for Lenders (in such capacity, "Administrative Agent"); and
(4) BANK OF MONTREAL, THE FIRST NATIONAL BANK OF CHICAGO, FIRST UNION NATIONAL BANK, KEYBANK NATIONAL ASSOCIATION and FLEET NATIONAL BANK, as co-agents for Lenders
(each in such capacity, a "Co-Agent").
RECITALS
A. Borrower has requested Lenders to provide certain credit facilities to Borrower.
B. Lenders are willing to provide such credit facilities upon the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the above Recitals and the mutual covenants herein contained, the parties hereto hereby agree as follows:
SECTION I. INTERPRETATION.
1.01. Definitions. Unless otherwise indicated in this Agreement or any other Credit Document, each term
set forth below, when used in this Agreement or any other Credit Document, shall have the respective meaning given to that term below or in the provision of this Agreement or other document,
instrument or agreement referenced below.
"ABN AMRO" shall mean ABN AMRO Bank N.V.
"Administrative Agent" shall have the meaning given to that term in clause (3) of the introductory
paragraph hereof.
"Administrative Agent's Fee Letter" shall mean the letter agreement dated as of March 19, 1999, between Borrower and
Administrative Agent regarding certain fees payable by Borrower to Administrative Agent.
"Adobe Incentive Partners" shall mean Adobe Incentive Partners, L.P., a California limited partnership, in which Borrower is the
general partner and all of the limited partners are Borrower or Affiliates of Borrower.
"Adobe Incentive Partners Distributions" shall mean distributions of cash or securities owned by Adobe Incentive Partners, repurchases
of unvested partnership interests in Adobe Incentive Partners, and issuances of partnership interests in Adobe Incentive Partners.
"Affiliate" shall mean, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether
beneficially or as a trustee, guardian or other fiduciary, ten percent (10%) or more of any class of Equity Securities of such Person, (b) each Person that controls, is controlled by or is
under common control with such Person or any Affiliate of such Person or (c) each of such Person's officers, directors, general partners and, if such Person is a joint venture organized as a separate
legal entity, joint venturers having powers comparable to a general partner; provided, however, that in
no case shall any of the following Persons be deemed to be an Affiliate of Borrower or
any of its Subsidiaries for purposes of this Agreement: (i) Administrative Agent or any Lender or (ii) the
general partner of any VC Partnership which would otherwise be deemed an Affiliate solely because it acts as general partner and controls such VC Partnership. For the purpose of this definition,
"control" of a Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies.
"Agents" shall mean collectively Administrative Agent and the Co-Agents.
"Agreement" shall mean this Credit Agreement.
"Applicable Lending Office" shall mean, with respect to any Lender, (a) in the case of its Base Rate Loans and Base Rate
Portions, its Domestic Lending Office, and (b) in the case of its LIBOR Loans and LIBOR Portions, its Euro-Dollar Lending Office.
"Applicable Margin" shall mean, with respect to any Loan or Portion at any time, the per
annum margin which is determined pursuant to the Pricing Grid and added to the Base Rate or LIBO Rate, as the case may be, for such Loan or Portion;
provided, however, that each Applicable Margin determined pursuant to the Pricing Grid shall be
increased by two percent (2.00%) per annum on the date an Event of Default occurs and shall continue at such increased rate unless and until such Event
of Default is waived or cured in accordance with this Agreement. The Applicable Margins shall be determined as provided in the Pricing Grid and may change for each Pricing Period.
"Assignee Lender" shall have the meaning given to that term in Subparagraph 8.05(c).
"Assignment" shall have the meaning given to that term in Subparagraph 8.05(c).
"Assignment Agreement" shall have the meaning given to that term in Subparagraph
8.05(c).
"Assignment Effective Date" shall have, with respect to each Assignment Agreement, the meaning set forth therein.
"Assignor Lender" shall have the meaning given to that term in Subparagraph 8.05(c).
"Base Rate" shall mean, on any day, the greater of (a) the Prime Rate in effect on such date and (b) the Federal Funds
Rate for such day plus one-half percent (0.50%).
"Base Rate Loan" shall mean, at any time, a Revolving Loan which then bears interest as provided in clause
(i) of Subparagraph 2.04(a).
"Base Rate Portion" shall mean, at any time, a Portion of the Facility B Term Loan Borrowing or a Facility B Term Loan, as the case may
be, which then bears interest as provided in clause (i) of Subparagraph 2.04(a).
"Borrower" shall have the meaning given to that term in clause (1) of the introductory
paragraph hereof.
"Borrowing" shall mean a Facility A Revolving Loan Borrowing, a Facility B Revolving Loan Borrowing or the Facility B Term Loan
Borrowing.
"Business Day" shall mean any day on which (a) commercial banks are not authorized or required to close in San Francisco,
California, New York, New York or Chicago, Illinois, and (b) if such Business Day is related to a LIBOR Loan or a LIBOR Portion, dealings in Dollar deposits are carried out in the London
interbank market.
"Capital Adequacy Requirement" shall have the meaning given to that term in Subparagraph
2.13(d).
"Capital Asset" shall mean, with respect to any Person, any tangible fixed or capital asset owned or leased (in the case of a Capital
Lease) by such Person, or any expense incurred by such Person that is required by GAAP to be reported as a non-current asset on such Person's balance sheet.
"Capital Leases" shall mean any and all lease obligations that, in accordance with GAAP, are required to be capitalized on the books of
a lessee.
"Change of Control" shall mean
(a) With respect to Borrower, (i) the acquisition after the date hereof by any person or group of persons (within the meaning of Section 13 or 14 of the
Securities Exchange Act of 1934 (as amended, the "Exchange Act")) of (A) beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under the
Exchange Act) of fifty percent (50%) or more of the outstanding Equity Securities of Borrower entitled to vote for members of the board of directors, or (B) all or substantially all of the
assets of Borrower; or (ii) during any period of twelve (12) consecutive calendar months, individuals who are directors of Borrower on the first day of such period ("Initial Directors") and any
directors of Borrower who are specifically approved by two-thirds of the Initial Directors and previously-approved Directors shall cease to constitute a majority of the Board of Directors of Borrower
before the end of such period; or
(b) With respect to any Material Subsidiary, Borrower shall cease to own, directly or indirectly, one hundred percent (100%) of the Equity Securities of such Subsidiary
except for nominal amounts of stock necessary to do business in certain jurisdictions outside the United States.
"Change of Law" shall have the meaning given to that term in Subparagraph 2.13(b).
"Closing Date" shall mean the date, not later than August 11, 1999, on which all of the initial conditions precedent described
in Paragraph 3.01 and Schedule 3.01 are met.
"Co-Agent" shall have the meaning given to that term in clause (4) of the introductory
paragraph hereof.
"Commitment Fee Percentage" shall mean, with respect to either Facility at any time, the per
annum percentage which is used to calculate Commitment Fees for such Facility. The Commitment Fee Percentages shall be determined as provided in the Pricing Grid
and may change for each Pricing Period.
"Commitment Fees" shall mean, collectively, the Facility A Commitment Fees and the Facility B Commitment Fees.
"Commitments" shall mean, collectively, the Facility A Commitments and the Facility B Commitments.
"Compliance Certificate" shall have the meaning given to that term in Subparagraph
5.01(a).
"Contingent Obligation" shall mean, with respect to any Person, (a) any Guaranty Obligation of that Person; and (b) any
direct or indirect obligation or liability, contingent or otherwise, of that Person (i) in respect of any Surety Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments, (ii) as a partner or joint venturer in any partnership or joint venture, (iii) to purchase any materials, supplies or other
property from, or to obtain the services of, another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for such services, shall be made regardless of whether delivery of such materials, supplies or other property is ever made or
tendered, or such services are ever performed or tendered, (iv) in respect to any Rate Contract that is not entered into in connection with a bona fide hedging operation that provides
offsetting benefits
to such Person, or (v) to purchase or sell Equity Securities or other securities of any Person. The amount of any Contingent Obligation shall (subject, in the case of Guaranty Obligations, to
the last sentence of the definition of "Guaranty Obligation") be deemed equal to the maximum reasonably anticipated liability in respect thereof;
provided, that (A) in the case of item (b)(v) of this definition, the amount of the Contingent
Obligation with respect to the purchase or sale of such Equity Securities or other securities shall be the net settlement amount to be paid in cash or securities, and (B) in the case of
item (b)(iv) of this definition, the Contingent Obligation with respect to such Rate Contracts shall be marked to market on a current basis.
"Contractual Obligation" of any Person shall mean, any indenture, note, lease, loan agreement, security, deed of trust, mortgage,
security agreement, guaranty, instrument, contract, agreement or other form of contractual obligation or undertaking to which such Person is a party or by which such Person or any of its property is
bound.
"Credit Documents" shall mean and include this Agreement, the Notes and the Administrative Agent's Fee Letter; all other documents,
instruments and agreements delivered to Administrative Agent or any Lender pursuant to Paragraph 3.01; and all other documents, instruments and
agreements pursuant to the terms of this Agreement required to be delivered by Borrower or any of its Subsidiaries to Administrative Agent or any Lender in connection with this Agreement on or after
the date of this Agreement.
"Credit Event" shall mean the making of any Loan (other than the making of a Base Rate Loan solely to repay an existing Loan); the
conversion of any Portion into a LIBOR Portion; or the selection of a new Interest Period for any LIBOR Loan or LIBOR Portion.
"Debt/EBITDA Ratio" shall mean, with respect to Borrower for any consecutive four-quarter period, the ratio, determined on a
consolidated basis in accordance with GAAP, of:
(a) The total Indebtedness of Borrower and its Subsidiaries on the last day of such period, excluding any Indebtedness under or with respect to currency exchange Rate
Contracts;
to
(b) The EBITDA of Borrower and its Subsidiaries for such period.
"Default" shall mean an Event of Default or any event or circumstance not yet constituting an Event of Default which, with the giving
of any notice or the lapse of any period of time or both, would become an Event of Default.
"Defaulting Lender" shall mean a Lender which has failed to fund its portion of any Borrowing which it is required to fund under this
Agreement and has continued in such failure for five (5) Business Days.
"Dollars" and "$" shall mean the lawful currency of the United States of America and,
in relation to any payment under this Agreement, same day or immediately available funds.
"Domestic Lending Office" shall mean, with respect to any Lender, (a) initially, its office designated as such in
Schedule I (or, in the case of any Lender which becomes a Lender by an assignment pursuant to Subparagraph
8.05(c), its office designated as such in the applicable Assignment Agreement) and (b) subsequently, such other office or offices as such Lender may designate to Administrative
Agent as the office at which such Lender's Base Rate Loans and Base Rate Portions will thereafter be maintained and for the account of which all payments of principal of, and interest on, such
Lender's Base Rate Loans and Base Rate Portions will thereafter be made.
"EBITDA" shall mean, with respect to Borrower for any period, the sum, determined on a consolidated basis in accordance with GAAP, of
the following:
(a) The net income or net loss of Borrower and its Subsidiaries for such period before provision for income taxes;
plus
(b) The sum (to the extent deducted in calculating net income or loss in clause (a) above) of (i) all
Interest Expenses of Borrower and its Subsidiaries for such period, (ii) all depreciation and amortization expenses of Borrower and its Subsidiaries for such period, and (iii) all
non-cash charges taken by Borrower and its Subsidiaries during such period for in-process research and development.
"Eligible Assignee" shall mean a Person that is a commercial bank or another financial institution which is a qualified institutional
buyer as defined in Rule 144A under the Securities Act of 1933, as amended; provided that (i) such Person has a combined capital and
surplus of at least $100,000,000 and (ii) such Person is acting through a branch, agency or office located in the United States.
"Employee Benefit Plan" shall mean any employee benefit plan within the meaning of section 3(3) of ERISA maintained or
contributed to by Borrower or any ERISA Affiliate, other than a Multiemployer Plan.
"Environmental Laws" shall mean the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the
Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.; the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901
et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980 (including the Superfund Amendments and Reauthorization Act of
1986, "CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section
2601 et seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651; the Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Section 11001 et seq.; the Mine Safety and Health Act of 1977, 30 U.S.C. Section 801 et seq.; the Safe
Drinking Water Act, 42 U.S.C. Section 300f et seq.; and all other Governmental Rules relating to the protection of human health and the
environment, including all Governmental Rules pertaining to the reporting, licensing, permitting, transportation, storage, disposal, investigation or remediation of emissions, discharges,
releases, or threatened releases of Hazardous Materials into the air, surface water, groundwater, or land, or relating to the manufacture, processing, distribution, use, treatment, storage, disposal,
transportation or handling of Hazardous Materials.
"Equity Securities" of any Person shall mean (a) all common stock, preferred stock, participations, shares, partnership
interests or other equity interests in and of such Person (regardless of how designated and whether or not voting or non-voting) and (b) all warrants, options and other rights to acquire or
sell any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974.
"ERISA Affiliate" shall mean any Person which is treated as a single employer with Borrower under Section 414 of the IRC.
"Euro-Dollar Lending Office" shall mean, with respect to any Lender, (a) initially, its office designated as such in
Schedule I (or, in the case of any Lender which becomes a Lender by an assignment pursuant to Subparagraph
8.05(c), its office designated as such in the applicable Assignment Agreement) and (b) subsequently, such other office or offices as such Lender may designate to Administrative
Agent as the office at which such Lender's LIBOR Loans and LIBOR Portions will thereafter be maintained and for the account of which all payments of principal of, and interest on, such Lender's LIBOR
Loans and LIBOR Portions will thereafter be made.
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