THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated
as of November 3, 1999, is made among Cadence Design Systems, Inc., a
Delaware corporation (the "Borrower"), the financial institutions listed on
the signature pages hereof under the heading "EXISTING BANKS" (each an
"Existing Bank" and, collectively, the "Existing Banks"), the financial
institutions listed on the signature pages hereof under the heading "NEW
BANKS" (each a "New Bank" and, collectively, the "New Banks"), Bank One, NA
(formerly known as The First National Bank of Chicago), KeyBank National
Association and UBS AG, Stamford Branch, as co-agents, Bank of America, N.A.
(formerly known as Bank of America National Trust and Savings Association),
as documentation agent, and ABN AMRO Bank N.V., as agent for the Banks (in
such capacity, the "Agent").
The Borrower, the Existing Banks and the Agent are parties to a
Credit Agreement dated as of September 29, 1998, as amended by a First
Amendment to Credit Agreement dated as of October 16, 1998, and a Second
Amendment to Credit Agreement dated as of September 27, 1999 (as so amended,
the "Credit Agreement"). The Borrower has requested that the Existing Banks
agree to certain amendments to the Credit Agreement in order to (i) increase
the size of the revolving credit facility available thereunder from
$300,000,000 to $355,000,000 and (ii) permit the New Banks to become parties
to the Credit Agreement. The Existing Banks have agreed to such request,
subject to the terms and conditions hereof.
Accordingly, the parties hereto agree as follows:
SECTION 1 DEFINITIONS; INTERPRETATION.
(a) TERMS DEFINED IN CREDIT AGREEMENT. All capitalized terms used
in this Amendment (including in the Recitals hereof) and not otherwise
defined herein shall have the meanings assigned to them in the Credit
Agreement.
(b) INTERPRETATION. The rules of interpretation set forth in
Section 1.03 of the Credit Agreement shall be applicable to this Amendment
and are incorporated herein by this reference.
SECTION 2 AMENDMENTS TO THE CREDIT AGREEMENT.
(a) AMENDMENTS. The Credit Agreement shall be amended as follows,
effective as of the date of satisfaction of the conditions set forth in
Section 3 (the "Effective Date"):
(i) The definition of "364-Day Commitment" set forth in
Section 1.01 of the Credit Agreement shall be amended by deleting the dollar
amount "$150,000,000" in clause (i) of such definition and substituting
therefor the dollar amount "$177,500,000";
(ii) The definition of "Conversion Date" set forth in Section
1.01 of the Credit Agreement shall be amended and restated as follows:
"CONVERSION DATE" means the date which is 364 days after
September 29, 1999."
(iii) Section 4.01(c) of the Credit Agreement shall be amended
by deleting the dollar amount appearing under the heading "Aggregate
Reduction Amount" and substituting therefor the dollar amount "$177,500,000";
and
(iv) Schedule 1 of the Credit Agreement shall be amended and
restated in its entirety in the form of Schedule 1 attached hereto.
(b) REFERENCES WITHIN CREDIT AGREEMENT. Each reference in the
Credit Agreement to "this Agreement" and the words "hereof," "herein,"
"hereunder," or words of like import, shall mean and be a reference to the
Credit Agreement as amended by this Amendment.
SECTION 3 CONDITIONS OF EFFECTIVENESS. The effectiveness of this
Amendment shall be subject to the satisfaction of each of the following
conditions precedent:
(a) EXECUTED AMENDMENT. The Agent shall have received an executed
counterpart of this Amendment from each of the Borrower, the Existing Banks
and the New Banks.
(b) ADDITIONAL CLOSING DOCUMENTS AND ACTIONS. The Agent shall
have received, in form and substance satisfactory to it, a certificate of a
Responsible Officer of the Borrower dated the Effective Date, stating that
(A) the representations and warranties contained in Section 4 hereof are true
and correct on and as of the Effective Date, and (B) on and as of the
Effective Date, after and giving effect to the amendment of the Credit
Agreement contemplated hereby, no Default shall have occurred and be
continuing.
(c) CORPORATE DOCUMENTS. The Agent shall have received, in form
and substance satisfactory to it, a certificate of the Secretary or Assistant
Secretary of the Borrower, dated the Effective Date, certifying (A) the
resolutions of the Board of Directors of the Borrower authorizing the
execution, delivery and performance of this Amendment and (B) the incumbency,
authority and signatures of each officer of the Borrower authorized to
execute and deliver this Amendment.
(d) REPRESENTATIONS AND WARRANTIES; NO DEFAULT. On the Effective
Date, after giving effect to the amendment of the Credit Agreement
contemplated hereby:
(i) the representations and warranties contained in Section
4 hereof shall be true and correct on and as of the Effective Date as though
made on and as of such date; and
(ii) no Default shall have occurred and be continuing.
(e) LEGAL OPINION. The Agent shall have received a legal opinion
from Xxxxxx, Xxxx & Xxxxxxxx, counsel to the Borrower, in substantially the
form of Exhibit A hereto.
2.
(f) ADDITIONAL DOCUMENTS. The Agent shall have received, in form
and substance satisfactory to it, such additional approvals, documents and
other information as the Agent or any Existing Bank or New Bank (through the
Agent) may reasonably request.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF THE BORROWER. To
induce the Existing Banks and the New Banks to enter into this Amendment, the
Borrower hereby confirms and restates, as of the date hereof, the
representations and warranties made by it in Section 8.01 of the Credit
Agreement and in the other Loan Documents. For the purposes of this Section
4, (i) each reference in Section 8.01 of the Credit Agreement to "this
Agreement," and the words "hereof," "herein," "hereunder," or words of like
import in such Section, shall mean and be a reference to the Credit Agreement
as amended by this Amendment, and each reference in such Section to "the Loan
Documents" shall mean and be a reference to the Loan Documents as amended as
contemplated hereby, (ii) the representation and warranty set forth in
Section 8.01(p) of the Credit Agreement shall be deemed instead to refer to
the last day of the most recent fiscal quarter and fiscal year for which
financial statements have then been delivered, (iii) any representations and
warranties which relate solely to an earlier date shall not be deemed
confirmed and restated as of the date hereof (PROVIDED that such
representations and warranties shall be true, correct and complete as of such
earlier date), and (iv) 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.
SECTION 5 REPRESENTATIONS AND WARRANTIES OF NEW BANKS. Each New
Bank represents and warrants to the Agent, the Existing Banks, each other New
Bank and the Borrower that (i) it is duly organized and existing and it has
full power and authority to take, and has taken, all action necessary to
execute and deliver this Amendment and any other documents required or
permitted to be executed or delivered by it in connection with this
Amendment, and to fulfill its obligations hereunder and under the Credit
Agreement; (ii) no notices to, or consents, authorizations or approvals of,
any Person are required for its due execution, delivery and performance of
this Amendment; and apart from any agreements or undertakings or filings
required by the Credit Agreement, no further action by, or notice to, or
filing with, any Person is required of it for such execution, delivery or
performance; (iii) this Amendment has been duly executed and delivered by it
and constitutes the legal, valid and binding obligation of such New Bank,
enforceable against such New Bank in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
SECTION 6 NEW BANKS ACCEDE TO CREDIT AGREEMENT. With effect on
and after the Effective Date (as defined in Section 2 hereof), each New Bank
shall be a party to the Credit Agreement and accede to all of the rights and
be obligated to perform all of the obligations of a Bank under the Credit
Agreement, including the requirements concerning confidentiality and the
payment of indemnification, with a Revolving Commitment in the amount set
forth in SCHEDULE 1 hereto opposite the name of such New Bank. Each New Bank
agrees that it shall perform in accordance with their terms all of the
obligations which by the terms of the Credit Agreement are required to be
performed by it as a Bank. Each New Bank hereby appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers
under
3.
the Credit Agreement and the other Loan Documents as are delegated to the
Agent by the Banks pursuant to the terms of the Credit Agreement and such
other Loan Documents.
SECTION 7 CERTAIN TRANSITIONAL MATTERS. The Borrower confirms
that all Interest Periods in respect of Revolving Loans outstanding on the
date hereof are scheduled to expire on November 4, 1999 (the "Transition
Date"). On the Transition Date, the amount of Revolving Loans then
outstanding and held by each Bank shall be adjusted to reflect the changes in
the Banks' Pro Rata Shares of the Revolving Loans, subject to Section 5.02 of
the Credit Agreement. Each Bank having Revolving Loans then outstanding and
whose Pro Rata Share in respect of Revolving Loans has been decreased on the
Effective Date as a result of the amendments contemplated hereby shall be
deemed to have assigned on the Transition Date, without recourse, to each
Bank increasing its Revolving Commitment on the Effective Date (each such
Bank, an "Increasing Bank") such portion of such Revolving Loans as shall be
necessary to effectuate such adjustment. Each such Bank increasing its
Revolving Commitment on the Effective Date shall (i) be deemed to have
assumed such portion of such Revolving Loans and (ii) fund on the Transition
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. At the request of any Bank whose Revolving
Commitment increases or decreases as a result of the amendments contemplated
hereby, the Borrower shall promptly provide a replacement Revolving Note to
each such requesting Bank reflecting such Bank's new Revolving Commitment.
Each such Bank requesting a replacement Revolving Note shall, upon its
receipt of such replacement Revolving Note, return its existing Revolving
Note, if any, to the Agent for cancellation.
SECTION 8 MISCELLANEOUS.
(a) NOTICE. The Agent shall notify the Borrower, the Existing
Banks and the New Banks of the occurrence of the Effective Date and
thereafter distribute to the Borrower, the Existing Banks and the New Banks
copies of all documents delivered under Section 3.
(b) CREDIT AGREEMENT OTHERWISE NOT AFFECTED. Except as expressly
amended pursuant hereto, the Credit Agreement shall remain unchanged and in
full force and effect and is hereby ratified and confirmed in all respects.
The Existing Banks', the New Banks' and the Agent's execution and delivery
of, or acceptance of, this Amendment and any other documents and instruments
in connection herewith (collectively, the "Amendment Documents") shall not be
deemed to create a course of dealing or otherwise create any express or
implied duty by any of them to provide any other or further amendments,
consents or waivers in the future.
(c) NO RELIANCE BY BORROWER. The Borrower hereby acknowledges and
confirms to the Agent, the Existing Banks and the New Banks that the Borrower
is executing this Amendment and the other Amendment Documents on the basis of
its own investigation and for its own reasons without reliance upon any
agreement, representation, understanding or communication by or on behalf of
any other Person.
(d) INDEPENDENT CREDIT DECISION BY NEW BANKS. Each New Bank (a)
acknowledges that it has received a copy of the Credit Agreement and the
Schedules and Exhibits thereto, together with copies of the most recent
financial statements referred to in
4.
Section 8.01(p) of the Credit Agreement, and such other documents and
information as it has deemed appropriate to make its own credit and legal
analysis and decision to enter into this Amendment; and (b) agrees that it
will, independently and without reliance upon the Agent or any other Bank,
and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit and legal decisions in taking or
not taking action under the Credit Agreement and the other Loan Documents.
(e) COSTS AND EXPENSES. The Borrower agrees to pay to the Agent
on demand the reasonable out-of-pocket costs and expenses of the Agent, and
the reasonable fees and disbursements of counsel to the Agent, in connection
with the negotiation, preparation, execution and delivery of this Amendment
and any other documents to be delivered in connection herewith.
(f) BINDING EFFECT. This Amendment 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.
(g) GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(h) COMPLETE AGREEMENT; AMENDMENTS. This Amendment, together with
the other Amendment Documents and the other Loan Documents, contains the
entire and exclusive agreement of the parties hereto and thereto with
reference to the matters discussed herein and therein. This Amendment
supersedes all prior commitments, drafts, communications, discussion and
understandings, oral or written, with respect thereto. This Amendment may
not be modified, amended or otherwise altered except in accordance with the
terms of Section 12.01 of the Credit Agreement.
(i) SEVERABILITY. Whenever possible, each provision of this
Amendment shall be interpreted in such manner as to be effective and valid
under all applicable laws and regulations. If, however, any provision of
this Amendment 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 this Amendment, or the validity or
effectiveness of such provision in any other jurisdiction.
(j) COUNTERPARTS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute but one and the same agreement.
(k) INTERPRETATION. This Amendment and the other Amendment
Documents are the result of negotiations between and have been reviewed by
counsel to the Agent, the Borrower and other parties, and are the product of
all parties hereto. Accordingly, this Amendment and the other Amendment
Documents shall not be construed against any of the
5.
Banks or the Agent merely because of the Agent's or any Bank's involvement in
the preparation thereof.
(l) LOAN DOCUMENTS. This Amendment and the other Amendment
Documents shall constitute Loan Documents.
[SIGNATURE PAGES FOLLOW.]
6.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment, 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 EXISTING BANKS
ABN AMRO BANK N.V., as a Bank
By: -----------------------------------
Name:
Title:
BANK OF AMERICA, N.A. (formerly known as Bank
of America National Trust And Savings
Association), as documentation agent and as a
Bank
By: -----------------------------------
Name:
Title:
7.
BANK ONE, NA (formerly known as The First
National Bank of Chicago)
By: -----------------------------------
Name:
Title:
KEYBANK NATIONAL ASSOCIATION
By: -----------------------------------
Name:
Title:
UBS AG, STAMFORD BRANCH
By: -----------------------------------
Name:
Title:
BARCLAYS BANK PLC
By: -----------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By: -----------------------------------
Name:
Title:
8.
BANKBOSTON, N.A.
By: -----------------------------------
Name:
Title:
THE NEW BANKS
MELLON BANK, N.A.
By: -----------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: -----------------------------------
Name:
Title:
BANK HAPOALIM B.M.
By: -----------------------------------
Name:
Title:
By: -----------------------------------
Name:
Title:
9.
