LOAN AND SECURITY AGREEMENT
BY AND BETWEEN
CYPRESS SEMICONDUCTOR CORPORATION
AND
SILICON VALLEY BANK
SEPTEMBER 25, 2003
1.
THIS LOAN AND SECURITY AGREEMENT, dated as of September 25, 2003 (this
"Agreement"), is by and between SILICON VALLEY BANK ("Bank"), whose address is
0000 Xxxxxx Xxxxx, Xxxxx Xxxxx, Xxxxxxxxxx, 00000, and CYPRESS SEMICONDUCTOR
CORPORATION ("Borrower"), whose address is 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx,
Xxxxxxxxxx, 00000, and provides the terms on which Bank will lend to Borrower
and Borrower will repay Bank. The parties hereto agree as follows:
1. DEFINITIONS; ACCOUNTING AND OTHER TERMS
Capitalized terms used herein shall have the meanings given to such
terms in Section 13 of this Agreement and in Appendix A hereto. Accounting terms
not defined in this Agreement will be construed following GAAP. Calculations and
determinations must be made following GAAP. The term "financial statements"
includes the notes and schedules thereto. The terms "including" and "includes"
always mean "including (or includes) without limitation," in this or any Loan
Document.
2. LOAN AND TERMS OF PAYMENT
2.1 Promise to Pay.
Borrower promises to pay Bank the unpaid principal amount of all
Advances and interest on the unpaid principal amount of the Advances.
2.1.1 Advances.
(a) Bank will make Advances not exceeding the Committed
Revolving Line minus (i) the outstanding principal balance of the Advances
(including drawn but unreimbursed Letters of Credit that are deemed to be
Advances pursuant to Section 2.1.2(c)), minus (ii) the amount of all outstanding
Letters of Credit (excluding drawn but unreimbursed Letters of Credit that are
deemed to be Advances pursuant to Section 2.1.2(c)) minus (iii) all amounts for
services utilized for Cash Management Services that Borrower and Bank agree to
in writing pursuant to Section 2.1.4. Amounts borrowed hereunder that remain
available for borrowing under this Agreement may be repaid and reborrowed prior
to the Maturity Date, without penalty or premium.
(b) To obtain an Advance, Borrower must notify Bank pursuant
to the terms set for in Section 2 of Appendix A. Borrower must promptly confirm
the notification by delivering to Bank a Loan Payment/Advance Request Form (the
"Payment/Advance Form"). Bank will credit Advances to Borrower's deposit
account. Bank may make Advances under this Agreement based on instructions from
a Responsible Officer or his or her designee or without instructions if the
Advances are necessary to meet Obligations which have become due. Bank may rely
on any telephone notice given by a person whom Bank believes is a Responsible
Officer or designee. Borrower will indemnify Bank for any loss Bank suffers due
to such reliance.
(c) The Committed Revolving Line shall terminate on the
Maturity Date, and all Advances are immediately due and payable on the Maturity
Date.
1.
2.1.2 Letters of Credit.
(a) Bank will issue or have issued documentary or standby
Letters of Credit for Borrower's account not exceeding the amount available
under the Committed Revolving Line (each, a "Letter of Credit"). Each Letter of
Credit will have an expiry date of no later than 180 days after the Maturity
Date, but Borrower's reimbursement obligation will be secured by cash on terms
acceptable to Bank at any time after the Maturity Date if such Maturity Date is
not extended by Bank or if an Event of Default occurs and continues. Borrower
agrees to execute any further documentation in connection with the Letters of
Credit as Bank may reasonably request.
(b) Prior to or simultaneously with the opening of each
Letter of Credit, Borrower shall pay to Bank Bank's customary fees in connection
with the opening of a letter of credit (the "Letter of Credit Fees"). For
standby Letters of Credit, Bank's fees shall be 0.60% per annum. The Letter of
Credit Fees shall be paid upon the opening of each Letter of Credit and upon
each anniversary thereof, if required. In addition, Borrower shall pay to Bank,
for its own account, any and all additional issuance, negotiation, processing,
transfer or other fees to the extent and as and when required by the provisions
of any application for Letters of Credit. All Letter of Credit Fees shall be
part of the Obligations.
(c) If any Letter of Credit is drawn upon, such amount shall
constitute an Advance and shall initially accrue interest at the Prime Rate,
provided that Borrower shall have the right, from time to time, to elect an
Interest Rate based on the LIBOR Rate pursuant to the terms of Appendix A. If
such amount is not paid immediately, then the full amount thereof shall accrue
interest at the rate set forth in Section 2.3.1.
2.1.3 Intentionally Omitted.
2.1.4 Cash Management Services.
Borrower may use the availability under the Committed
Revolving Line for Bank's cash management services, which may include merchant
services, direct deposit of payroll, business credit cards, automated clearing
house transactions, controlled disbursement accounts and check cashing services
identified in various cash management services agreements related to such
services (the "Cash Management Services"). Such aggregate amounts utilized for
Cash Management Services will reduce the amount otherwise available to be
borrowed under the Committed Revolving Line, provided that Borrower and Bank
shall enter into a written agreement with respect to any such Cash Management
Services that sets forth (i) the amount of availability under the Committed
Revolving Line that will be reduced with respect to such Cash Management
Services or the methodology for calculating such amounts and (ii) the terms and
conditions governing such Cash Management Services, including, without
limitation, the treatment of any credit extended by Bank to Borrower under such
Cash Management Services as Advances hereunder.
2.2 Overadvances.
If, at any time, Borrower's Obligations hereunder exceed the Committed
Revolving Line, Borrower shall immediately pay Bank the excess.
2.
2.3 Interest Rate, Payments.
2.3.1 Interest Rate. Advances accrue interest on the
outstanding principal balance thereof at the Interest Rate (as defined in
Appendix A hereto). Borrower may elect to borrow Prime Rate Loans or LIBOR Rate
Loans, all as more particularly set forth in Appendix A hereto. During the
existence of an Event of Default, Obligations shall accrue interest at a rate
per annum equal to two percent (2%) above the rate effective immediately before
the Event of Default. The Interest Rate applicable to Prime Rate Loans increases
or decreases when the Prime Rate changes. Interest is computed on a 365 day year
for the actual number of days elapsed.
2.3.2 Payments. Interest due on the Advances is payable on
the first day of each month. Bank may debit any of Borrower's deposit accounts,
including account number 3300297750, for principal and interest payments owing
or any amounts Borrower owes Bank. Bank will promptly notify Borrower when it
debits Borrower's accounts. These debits are not a set-off. Payments received
after 12:00 noon Pacific Time are considered received at the opening of business
on the next Business Day. When a payment is due on a day that is not a Business
Day, the payment is due the next Business Day and additional fees or interest
accrue.
2.4 Fees.
Borrower will pay:
(a) Commitment Fee. A fully earned, non-refundable loan fee
in the amount of 0.55% of the Committed Revolving Line ($275,000) is due on or
before the Closing Date.
(b) Bank Expenses. All Bank Expenses (including reasonable
attorneys' fees and expenses) incurred as of the Closing Date shall be paid by
Borrower upon demand. All Bank Expenses (including reasonable attorneys' fees)
incurred after the date of this Agreement are payable within 30 days after
receipt by Borrower of an invoice therefor.
3. CONDITIONS OF LOANS
3.1 Conditions Precedent to Initial Advance.
Bank's obligation to make the initial Advance is subject to the
condition precedent that it shall have received, in form and substance
satisfactory to it, the following:
(a) this Agreement;
(b) the Guaranty of each of Cypress Semiconductor
(Minnesota) Inc. and Cypress Semiconductor (Texas) Inc.;
(c) the Pledge Agreements;
(d) an opinion of counsel to Borrower;
3.
(e) an officer's certificate of Borrower with respect to its
Certificate of Incorporation, Bylaws, incumbency and resolutions authorizing the
execution and delivery of this Agreement;
(f) a financing statement (Form UCC-1);
(g) evidence of insurance;
(h) payment of the fees and Bank Expenses then due specified
in Section 2.4; and
(i) such other documents, and completion of such other
matters, as Bank may reasonably deem necessary or appropriate.
3.2 Conditions Precedent to All Advances.
Bank's obligation to make each Advance, including the initial Advance,
is subject to the following:
(a) timely receipt of any Payment/Advance Form for a Prime
Rate Loan or a LIBOR Rate Borrowing Certificate for a LIBOR Rate Loan;
(b) the representations and warranties in Section 5 must be
true in all material respects on the date of the Payment/Advance Form or the
LIBOR Rate Borrowing Certificate and on the effective date of each Advance
(except that, in each case, representations and warranties in Section 5 made as
of a specified earlier date shall be true in all material respects as of such
specified earlier date) and no Event of Default may have occurred and be
continuing, or result from such Advance. Each Advance is Borrower's
representation and warranty on that date that the representations and warranties
of Section 5 remain true in all material respects (except that representations
and warranties in Section 5 made as of a specified earlier date shall be true in
all material respects as of such specified earlier date) ; and
(c) there has not been, in Bank's sole discretion, a
material adverse change in the general affairs, management, results of
operation, condition (financial or otherwise) or the prospect of repayment of
the Obligations (a "Material Adverse Change").
4. CREATION OF SECURITY INTEREST
4.1 Grant of Security Interest.
Borrower grants Bank a continuing security interest in all presently
existing and later acquired Collateral to secure all Obligations and performance
of each of Borrower's duties under the Loan Documents. Any security interest
will be a first priority security interest in the Collateral. If this Agreement
is terminated, Bank's lien and security interest in the Collateral will continue
until Borrower fully satisfies its Obligations (other than inchoate indemnity
obligations).
4.
4.2 Authorization to File; Delivery of Additional Documentation.
Borrower authorizes Bank to file financing statements (Form UCC-1)
without notice to Borrower, with all appropriate jurisdictions, as Bank deems
appropriate, in order to perfect or protect Bank's security interest in the
Collateral. Borrower shall execute and deliver to Bank, at the request of Bank,
all documents that Bank may reasonably request, in form satisfactory to Bank, to
perfect and continue perfected Bank's security interest in the Collateral and in
order to fully consummate all of the transactions contemplated under the Loan
Documents.
5. REPRESENTATIONS AND WARRANTIES
Except as set forth in the Disclosure Letter, Borrower represents and
warrants as follows:
5.1 Due Organization; Organizational Structure; Authorization.
Borrower and each Guarantor is duly existing and in good standing in
its state of formation and qualified and licensed to do business in, and in good
standing in, any state in which the conduct of its business or its ownership of
property requires that it be qualified, except where the failure to do so would
not reasonably be expected to cause a Material Adverse Change.
Borrower has not changed its state of formation or organizational
structure or type or any organizational number assigned by its jurisdiction of
formation in the past five (5) years.
The execution, delivery and performance of the Loan Documents have been
duly authorized, and do not contravene Borrower's formation documents, nor
constitute an event of default under any material agreement by which Borrower is
bound. Borrower is not in default under any agreement to which or by which it is
bound in which the default would reasonably be expected to cause a Material
Adverse Change.
5.2 Collateral.
Borrower has good title to the Collateral, free of Liens except
Permitted Liens.
5.3 Litigation.
Except as disclosed in Borrower's public filings with the SEC, there
are no actions or proceedings pending or, to the knowledge of Borrower's
Responsible Officers, overtly threatened by or against Borrower or any
Subsidiary in which a likely adverse decision would reasonably be expected to
cause a Material Adverse Change.
5.4 No Material Adverse Change in Financial Statements.
All consolidated financial statements for Borrower delivered to Bank
fairly present in all material respects Borrower's consolidated financial
condition and Borrower's consolidated results of operations. There has not been
any deterioration in Borrower's consolidated financial condition since the date
of the most recent financial statements submitted to Bank that would reasonably
be expected to cause a Material Adverse Change.
5.
5.5 Solvency.
The fair salable value of Borrower's assets (including goodwill minus
disposition costs) exceeds the fair value of its liabilities; the Borrower is
not left with unreasonably small capital after the transactions in this
Agreement; and Borrower is able to pay its debts (including trade debts) as they
mature.
5.6 Regulatory Compliance.
Borrower is not an "investment company" or a company "controlled" by an
"investment company" under the Investment Company Act. Except for loans extended
to Borrower's employees in connection with Borrower's employee stock purchase
assistance plan, Borrower is not engaged as one of its important activities in
extending credit for margin stock (under Regulations T and U of the Federal
Reserve Board of Governors). Borrower has complied in all material respects with
the Federal Fair Labor Standards Act. Borrower has not violated any laws,
ordinances or rules, the violation of which would reasonably be expected to
cause a Material Adverse Change. None of Borrower's or any Subsidiary's
properties or assets has been used by Borrower or any Subsidiary or, to the best
of Borrower's knowledge, by previous Persons, in disposing, producing, storing,
treating, or transporting any hazardous substance other than legally, except to
the extent that noncompliance would not reasonably be expected to result in a
Material Adverse Change. Borrower and each Subsidiary has timely filed all
required tax returns and paid, or made adequate provision to pay, all material
taxes, except those being contested in good faith with adequate reserves under
GAAP. Borrower and each Subsidiary has obtained all consents, approvals and
authorizations of, made all declarations or filings with, and given all notices
to, all government authorities that are necessary to continue its business as
currently conducted, except where the failure to do so would not reasonably be
expected to cause a Material Adverse Change.
5.7 Subsidiaries.
Borrower does not own any stock, partnership interest or other equity
securities except for Permitted Investments.
5.8 Full Disclosure.
No written representation, warranty or other statement of Borrower in
any certificate or written statement given to Bank (taken together with all such
written certificates and written statements to Bank) contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained in the certificates or statements not misleading (it
being recognized by Bank that the projections and forecasts provided by Borrower
in good faith and based upon reasonable assumptions are not viewed as facts and
that actual results during the period or periods covered by such projections and
forecasts may differ from the projected and forecasted results).
5.9 Designation of Indebtedness under this Agreement as Senior
Indebtedness.
All principal of, interest (including all interest accruing after the
commencement of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as
6.
a claim in any such proceeding), and all fees, costs, expenses and other amounts
accrued or due under this Agreement shall constitute "Designated Senior
Indebtedness" under the terms of the 2000 Indenture and the 2003 Indenture,
respectively.
6. AFFIRMATIVE COVENANTS
Borrower will do all of the following for so long as Bank has an
obligation to lend, or there are outstanding Obligations (other than inchoate
indemnity obligations):
6.1 Designated Senior Indebtedness.
Borrower shall designate all principal of, interest (including all
interest accruing after the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition interest is allowable as a
claim in any such proceeding), and all fees, costs, expenses and other amounts
accrued or due under this Agreement as "Designated Senior Indebtedness", or such
similar term, in any future Subordinated Debt incurred by Borrower after the
date hereof, if such Subordinated Debt contains such term or similar term and if
the effect of such designation is to grant to Bank the same or similar rights as
granted to Bank as a holder of "Designated Senior Indebtedness" under the 2000
Indenture or the 0000 Xxxxxxxxx.
6.2 Government Compliance.
Borrower shall, and shall cause each of its Subsidiaries to, maintain
its legal existence and good standing in its jurisdiction of formation and each
jurisdiction in which the nature of its business requires them to be so
qualified, except where the failure to take such action would not reasonably be
expected to have a material adverse effect on Borrower's and its Subsidiaries'
business or operations, taken as a whole; provided, that (a) the legal existence
of any Subsidiary that is not a Guarantor may be terminated or permitted to
lapse, and any qualification of such Subsidiary to do business may be terminated
or permitted to lapse, if, in the good faith judgment of Borrower, such
termination or lapse is in the best interests of Borrower and its Subsidiaries,
taken as a whole, and (b) Borrower may not permit its qualification to do
business in the jurisdiction of its chief executive office to terminate or
lapse; and provided, further, that this Section 6.2 shall not be construed to
prohibit any other transaction that is otherwise permitted in Section 7 of this
Agreement.
Borrower will comply, and have each Subsidiary comply, with all laws,
ordinances and regulations to which it is subject, noncompliance with which
could have a material adverse effect on Borrower's business or operations or
would reasonably be expected to cause a Material Adverse Change.
6.3 Financial Statements, Reports, Certificates.
(a) Borrower will deliver to Bank: (i) as soon as available,
but no later than 5 days after filing with the SEC, the Borrower's 10K and 10Q
reports; (ii) a Compliance Certificate together with delivery of the 10K and 10Q
reports; (iii) within 45 days after the end of each fiscal year, annual
financial projections for the following fiscal year (on a quarterly basis) as
approved by Borrower's board of directors, together with any related business
forecasts used in the preparation of such annual financial projections; (iv) a
prompt report of any legal
7.
actions pending or threatened against Borrower or any Subsidiary that could
result in damages or costs to Borrower or any Subsidiary of $10,000,000 or more;
and (v) budgets, sales projections, operating plans or other financial
information Bank reasonably requests.
Borrower's 10K and 10Q reports required to be delivered pursuant to
Section 6.3(a)(i) shall be deemed to have been delivered on the date on which
Borrower posts such report or provides a link thereto on Borrower's website on
the Internet; provided, that Borrower shall provide paper copies to Bank of the
Compliance Certificates required by Section 6.3(a)(ii).
(b) Within 30 days after the last day of each quarter,
Borrower will deliver to Bank (i) a cash balance report, including account
statements detailing cash management types of investments held and maturity
dates, and (ii) an accounts receivable aging report, by invoice date.
6.4 Intentionally Omitted.
6.5 Taxes.
Borrower will make, and cause each Subsidiary to make, timely payment
of all material federal, state, and local taxes or assessments (other than taxes
and assessments which Borrower is contesting in good faith, with adequate
reserves maintained in accordance with GAAP) and will deliver to Bank, on
demand, appropriate certificates attesting to the payment.
6.6 Insurance.
Borrower shall maintain in full force and effect insurance of the types
customarily carried in its line of business, including, without limitation,
self-insurance.
6.7 FINANCIAL COVENANTS.
Borrower will maintain, on a consolidated basis, the following as of
the last day of each fiscal quarter:
(a) Tangible Net Worth. A Tangible Net Worth not less than
Six Hundred Million Dollars ($600,000,000).
(b) Quick Ratio. A ratio of (A) unrestricted cash, cash
equivalents, short and long term Investments and accounts receivable net of
reserves to (B) Current Liabilities exclusive of the current liability
associated with Subordinated Debt, of not less than 1.00:1.00.
6.8 Intentionally Omitted.
6.9 USE OF PROCEEDS.
Borrower shall use the Advances (including Advances constituting
Letters of Credit) only for its general working capital requirements, including,
without limitation, capital expenditures, and for any other purpose not
expressly prohibited hereunder.
8.
6.10 Further Assurances.
Borrower will execute any further instruments and take further action
as Bank reasonably requests to perfect or continue Bank's security interest in
the Collateral or to effect the purposes of this Agreement.
7. NEGATIVE COVENANTS
Borrower will not, and will not permit any of its Subsidiaries to, do
any of the following without Bank's prior written consent for so long as Bank
has an obligation to lend or there are any outstanding Obligations (other than
inchoate indemnity obligations):
7.1 Dispositions.
Convey, sell, lease, transfer or otherwise dispose of (collectively
"Transfer"), or permit any of its Subsidiaries to Transfer, all or any part of
its business or property, except for:
(a) Transfers in the ordinary course of business;
(b) Transfers to Borrower or any of its Subsidiaries from
Borrower or any of its Subsidiaries;
(c) Transfers of property for fair market value;
(d) Transfers of property in connection with sale-leaseback
transactions;
(e) Transfers of property to the extent such property is
exchanged for credit against, or proceeds are promptly applied to, the purchase
price of other property used or useful in the business of Borrower or its
Subsidiaries;
(f) Transfers constituting (i) non-exclusive licenses, (ii)
exclusive licenses with respect to geographic locations, or fields of use, or
custom products developed for a particular customer;
(g) Transfers otherwise permitted by the Loan Documents;
(h) sales or discounting of delinquent accounts;
(i) Transfers of used, worn-out or obsolete property, or of
surplus property for fair market value;
(j) Transfers associated with the making or disposition of a
Permitted Investment;
(k) Transfers in connection with a permitted acquisition of
a portion of the assets or rights acquired; and
9.
(l) Transfers not otherwise permitted in this Section 7.1,
provided, that the aggregate book value of all such Transfers by Borrower and
its Subsidiaries, together, shall not exceed in any fiscal year, 10% of
Borrower's consolidated total assets as of the last day of the fiscal year
immediately preceding the date of determination.
7.2 Changes in Business, Ownership, or Business Locations.
Engage in any material line of business other than those lines of
business conducted by Borrower and its Subsidiaries on the date hereof and any
businesses reasonably related, complementary or incidental thereto or reasonable
extensions thereof. Borrower will not, without prior written notice, change its
state of incorporation.
7.3 Mergers or Acquisitions.
Merge or consolidate, or permit any of its Subsidiaries to merge or
consolidate, with any Person other than with Borrower or any Subsidiary, or
acquire, or permit any of its Subsidiaries to acquire, all or substantially all
of the capital stock or property of a Person other than Borrower or any
Subsidiary, except where no Event of Default has occurred and is continuing or
would result from such action during the term of this Agreement and (a) Borrower
is the surviving entity or (b) such merger or consolidation is a Transfer
otherwise permitted pursuant to Section 7.1 hereof.
7.4 Indebtedness.
Create, incur, assume, or be liable for any Indebtedness, or permit any
Subsidiary to do so, other than Permitted Indebtedness.
7.5 Encumbrance.
Create, incur, or allow any Lien on any of its property, or assign or
convey any right to receive income, including the sale of any Accounts, or
permit any of its Subsidiaries to do so, except for Permitted Liens, or permit
any Collateral not to be subject to the first priority security interest granted
hereunder.
7.6 Distributions; Investments.
Directly or indirectly acquire or own any Person, or make any
Investment in any Person, other than Permitted Investments. Pay any dividends or
make any distribution or payment or redeem, retire or purchase any capital
stock, except for Permitted Distributions.
7.7 Transactions with Affiliates.
Directly or indirectly enter into or permit to exist any material
transaction with any Affiliate of Borrower except for:
(a) transactions that are in the ordinary course of
Borrower's business, upon fair and reasonable terms (when viewed in the context
of any series of transactions of which it may be a part, if applicable); or
10.
(b) transactions among Borrower and its Subsidiaries and
among Borrower's Subsidiaries.
7.8 Subordinated Debt:
Make or permit any payment on or amendments of any Subordinated Debt,
except:
(a) payments under the terms of the Subordinated Debt;
(b) payments made with Borrower's capital stock or other
Subordinated Debt;
(c) amendments to Subordinated Debt so long as such
Subordinated Debt remains subordinated in right of payment to this Agreement; or
(d) other purchases or payments of Subordinated Debt,
provided that the aggregate amount of such purchases or payments made pursuant
to this subsection (d) during the period commencing on the Closing Date and
ending on the date of determination, when combined with distributions, dividends
or purchases of Borrower's capital stock in cash during such period, shall not
exceed 50% of Borrower's consolidated positive cash flow for the period
beginning on June 30, 2003, and ending on the last day of the fiscal quarter
immediately preceding the date of determination, and no Event of Default exists
or will result from such purchases.
7.9 Compliance.
Become an "investment company" or a company controlled by an
"investment company," under the Investment Company Act of 1940, as amended, or
use the proceeds of any Advance for the purpose of purchasing or carrying margin
stock; fail to meet the minimum funding requirements of ERISA, permit a
Reportable Event or Prohibited Transaction, as defined in ERISA, to occur; fail
to comply with the Federal Fair Labor Standards Act or violate any other law or
regulation, if the violation could reasonably be expected to have a material
adverse effect on Borrower's business or operations or would reasonably be
expected to cause a Material Adverse Change, or permit any of its Subsidiaries
to do so.
8. EVENTS OF DEFAULT
Any one of the following is an Event of Default:
8.1 Payment Default.
If Borrower fails to pay (a) principal hereunder when due; (b) interest
hereunder within 3 Business Days of when due; and (c) any other Obligations
hereunder within 30 days of receipt by Borrower of an invoice therefor. During
the additional period the failure to cure the default is not an Event of Default
(but no Advance will be made during the cure period);
8.2 Covenant Default.
11.
(a) If Borrower does not perform any obligation in Section
6.6 or 6.7 or violates any covenant in Section 7; or
(b) If Borrower does not perform or observe any other
material covenant in this Agreement, any Loan Documents, or in any agreement
between Borrower and Bank and has not cured the default within 20 days after a
Responsible Officer has knowledge of such default;
8.3 Intentionally Omitted.
8.4 Change of Control.
If a Change of Control occurs;
8.5 Attachment.
If 20% or more of consolidated total assets of Borrower is attached,
seized, levied on, or comes into possession of a trustee or receiver and the
attachment, seizure or levy is not removed in 10 days, or if Borrower is
enjoined, restrained, or prevented by court order from conducting a material
part of its business or if a judgment or other claim becomes a Lien on a
material portion of Borrower's assets, or if a notice of lien, levy, or
assessment is filed against any of Borrower's assets by any government agency
and not paid within 10 days after Borrower receives notice. These are not Events
of Default if stayed or if a bond is posted pending contest by Borrower (but no
Advances will be made during the cure period);
8.6 Insolvency.
If Borrower becomes insolvent or if Borrower begins an Insolvency
Proceeding or an Insolvency Proceeding is begun against Borrower and not
dismissed or stayed within 60 days (but no Advances will be made before any
Insolvency Proceeding is dismissed);
8.7 Other Agreements.
If Borrower fails to (a) make any payment exceeding $10,000,000 of
Indebtedness when due and such failure continues after the applicable grace or
notice period, if any, specified in the agreement or instrument relating
thereto, or (b) perform or observe any other condition or covenant, or any other
event shall occur or condition exist under any agreement or instrument relating
to any Indebtedness exceeding $10,000,000, and such failure continues after the
applicable grace or notice period, if any, specified in the agreement or
instrument relating thereto and the effect of such failure, event or condition
is to cause the holder or holders of such Indebtedness to accelerate the
maturity of such Indebtedness or cause the mandatory repurchase of any
Indebtedness exceeding $10,000,000;
12.
8.8 Judgments.
If a money judgment(s) in the aggregate of at least $10,000,000 (not
covered by insurance) is rendered against Borrower and is unsatisfied and
unstayed for 30 days (but no Advances will be made before the judgment is stayed
or satisfied);
8.9 Misrepresentations.
If Borrower or any Person acting for Borrower makes any material
misrepresentation or material misstatement in any warranty or representation in
this Agreement or in any writing delivered to Bank or to induce Bank to enter
this Agreement or any Loan Document; or
8.10 Guaranty.
Any guaranty of any Obligations ceases for any reason to be in full
force or any Guarantor does not perform any material obligation under any
guaranty of the Obligations, or any material misrepresentation or material
misstatement exists as of the date made or deemed made in any warranty or
representation in any guaranty of the Obligations or in any certificate
delivered to Bank by a Guarantor in connection with any guaranty, or any
circumstance described in Sections 8.4, 8.6 or 8.8 occurs to any Guarantor.
9. BANK'S RIGHTS AND REMEDIES
9.1 Rights and Remedies.
When an Event of Default occurs and continues Bank may, without notice
or demand, do any or all of the following:
(a) Declare all Obligations immediately due and payable (but
if an Event of Default described in Section 8.6 occurs all Obligations are
immediately due and payable without any action by Bank);
(b) Stop advancing money or extending credit for Borrower's
benefit under this Agreement or under any other agreement between Borrower and
Bank;
(c) Make any payments and do any acts it considers necessary
or reasonable to protect its security interest in the Collateral;
(d) Apply to the Obligations any (i) balances and deposits
of Borrower it holds, or (ii) any amount held by Bank owing to or for the credit
or the account of Borrower; and
(e) Dispose of the Collateral according to the Code.
9.2 Power of Attorney.
Effective only when an Event of Default occurs and continues, Borrower
irrevocably appoints Bank as its lawful attorney to (a) endorse Borrower's name
on any checks or other
13.
forms of payment or security relating to the Collateral and (b) transfer the
Collateral into the name of Bank or a third party as the Code permits. Bank may
exercise the power of attorney to sign Borrower's name on any documents
necessary to perfect or continue the perfection of any security interest
regardless of whether an Event of Default has occurred. Bank's appointment as
Borrower's attorney in fact, and all of Bank's rights and powers, coupled with
an interest, are irrevocable until all Obligations (other than inchoate
indemnity obligations) have been fully repaid and performed and Bank's
obligation to provide Advances terminates.
9.3 Bank Expenses.
Any amounts paid by Bank in connection with this Agreement are Bank
Expenses and immediately due and payable, bearing interest at the then
applicable rate and secured by the Collateral. No payments by Bank are deemed an
agreement to make similar payments in the future or Bank's waiver of any Event
of Default.
9.4 Bank's Liability for Collateral.
If Bank complies with reasonable banking practices and the Code, it is
not liable for: (a) the safekeeping of the Collateral; (b) any loss or damage to
the Collateral; or (c) any diminution in the value of the Collateral.
9.5 Remedies Cumulative.
Bank's rights and remedies under this Agreement, the Loan Documents,
and all other agreements are cumulative. Bank has all rights and remedies
provided under the Code, by law, or in equity. Bank's exercise of one right or
remedy is not an election, and Bank's waiver of any Event of Default is not a
continuing waiver. Bank's delay is not a waiver, election, or acquiescence. No
waiver is effective unless signed by Bank and then is only effective for the
specific instance and purpose for which it was given.
9.6 DEMAND WAIVER.
Except as otherwise required in this Agreement, Borrower waives demand,
notice of default or dishonor, notice of payment and nonpayment, notice of any
default, nonpayment at maturity, or release.
10. Notices
All notices or demands by any party about this Agreement or any other
related agreement must be in writing and be personally delivered or sent by an
overnight delivery service, by certified mail, postage prepaid, return receipt
requested, or by facsimile to the addresses set forth at the beginning of this
Agreement. A party may change its notice address by giving the other party
written notice.
11. CHOICE OF LAW , VENUE AND JURY TRIAL WAIVER
14.
California law governs the Loan Documents without regard to principles
of conflicts of law. Borrower and Bank each submit to the exclusive jurisdiction
of the State and Federal courts in Santa Xxxxx County, California.
BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE
OF ACTION ARISING OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED
TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS
WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT.
EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.
12. GENERAL PROVISIONS
12.1 Successors and Assigns.
This Agreement binds and is for the benefit of the successors and
permitted assigns of each party. Borrower may not assign this Agreement or any
rights under it without Bank's prior written consent which may be granted or
withheld in Bank's discretion. Bank has the right, without the consent of or
prior notice to Borrower, to sell, transfer, negotiate, or grant participation
in all or any part of, or any interest in, Bank's obligations, rights and
benefits under this Agreement to any other bank or financial institution.
12.2 Indemnification.
Borrower will indemnify, defend and hold harmless Bank and its
officers, employees, and agents against: (a) all obligations, demands, claims,
and liabilities asserted by any other party in connection with the transactions
contemplated by the Loan Documents; and (b) all losses or Bank Expenses
incurred, or paid by Bank from, following, or consequential to transactions
between Bank and Borrower (including reasonable attorneys fees and expenses),
except with respect to (a) and (b) above, for losses caused by Bank's and its
officers', employees', and agents' gross negligence or willful misconduct.
12.3 Time of Essence.
Time is of the essence for the performance of all obligations in this
Agreement.
12.4 Severability of Provision.
Each provision of this Agreement is severable from every other
provision in determining the enforceability of any provision.
12.5 Amendments in Writing; Integration.
All amendments to this Agreement must be in writing and signed by
Borrower and Bank. This Agreement represents the entire agreement about this
subject matter, and supersedes prior negotiations or agreements. All prior
agreements, understandings, representations, warranties,
15.
and negotiations between the parties about the subject matter of this Agreement
are superseded by this Agreement and the Loan Documents.
12.6 Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties on separate counterparts, each of which, when executed and
delivered, are an original, and all taken together, constitute one Agreement.
12.7 Survival.
All covenants, representations and warranties made in this Agreement
continue in full force while any Obligations (other than inchoate indemnity
obligations) remain outstanding. The obligations of Borrower in Section 12.2 to
indemnify Bank will survive until all statutes of limitations for actions that
may be brought against Bank have run.
12.8 Confidentiality.
In handling any confidential or non-public information concerning the
Borrower and its Subsidiaries, Bank will maintain the confidentiality of such
information, but disclosure of information may be made (a) to Bank's
subsidiaries or affiliates in connection with their business with Borrower,
provided they are bound by this confidentiality provision, (b) to prospective
transferees or purchasers of any interest in the loans, provided they are bound
by this confidentiality provision, (c) as required by law, regulation, subpoena,
or other order, (d) as required in connection with Bank's examination or audit,
provided that any Person receiving confidential or non-public information is
bound by this confidentiality provision or similar regulations, and (e) as Bank
considers appropriate exercising remedies under this Agreement, provided that
any Person receiving confidential or non-public information is bound by this
confidentiality provision or similar regulations. Confidential information does
not include information that either: (x) is in the public domain or in Bank's
possession when disclosed to Bank, or becomes part of the public domain after
disclosure to Bank; or (y) is disclosed to Bank by a third party, if Bank does
not know that the third party is prohibited from disclosing the information.
12.9 Attorneys' Fees, Costs and Expenses.
In any action or proceeding between Borrower and Bank arising out of
the Loan Documents, the prevailing party will be entitled to recover its
reasonable attorneys' fees and other reasonable costs and expenses incurred, in
addition to any other relief to which it may be entitled.
13. DEFINITIONS
In this Agreement:
"2000 Indenture" is that certain Subordinated Indenture dated as of
January 15, 2000, executed by and between Borrower, as issuer, and State Street
Bank and Trust Company of
16.
California, N.A., as trustee, relating to 3.75% Convertible Subordinated Notes
due 2005, as supplemented from time to time.
"2003 Indenture" is that is that certain Indenture dated as of June 3,
2003, by and between Borrower, as issuer, and U.S. Bank National Association, as
trustee, relating to the 1.25% Convertible Subordinated Plus Cash Notes due June
15, 2008, as supplemented from time to time.
"Accounts" are all existing and later arising accounts, contract
rights, and other obligations owed Borrower in connection with its sale or lease
of goods (including licensing software and other technology) or provision of
services, all credit insurance, guaranties, other security and all merchandise
returned or reclaimed by Borrower and Borrower's Books relating to any of the
foregoing.
"Advance" or "Advances" is a loan advance (or advances) under the
Committed Revolving Line, including Advances used to (i) fund Letters of Credit,
or (ii) extend financial accommodations for Cash Management Services to the
extent that Borrower and Bank have agreed in writing to extend financial
accommodations pursuant to the terms of Section 2.1.4.
"Affiliate" of a Person is a Person that owns or controls directly or
indirectly the Person, any Person that controls or is controlled by or is under
common control with the Person, and each of that Person's senior executive
officers, directors, partners and, for any Person that is a limited liability
company, that Person's managers and members.
"Bank Expenses" are all audit fees and expenses and reasonable costs
and expenses (including reasonable attorneys' fees and expenses) for preparing,
negotiating, administering, defending and enforcing the Loan Documents
(including appeals or Insolvency Proceedings).
"Borrower's Books" are all Borrower's books and records including
ledgers, records regarding Borrower's assets or liabilities, the Collateral,
business operations or financial condition and all computer programs or discs or
any equipment containing the information.
"Business Day" is any day that is not a Saturday, Sunday or a day on
which the Bank is closed.
"Cash Management Services" are defined in Section 2.1.4.
"Change in Control" is a transaction in which any "person" or "group"
(within the meaning of Section 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended) becomes the "beneficial owner" (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended), directly or indirectly,
of greater than 35% of the shares of all classes of stock then outstanding of
Borrower ordinarily entitled to vote in the election of directors.
"Closing Date" is the date of this Agreement.
"Code" is the Uniform Commercial Code in effect in any applicable
jurisdiction.
"Collateral" is the property described as such in the Pledge Agreement.
17.
"Committed Revolving Line" is an Advance or Advances not to exceed a
principal amount outstanding at any time of $50,000,000.
"Compliance Certificate" is a Compliance Certificate signed by a
Responsible Officer in substantially the same form of Exhibit C attached hereto.
"Contingent Obligation" is, for any Person, any direct or indirect
liability, contingent or not, of that Person for (a) any indebtedness, lease,
dividend, letter of credit or other obligation of another such as an obligation
directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly
liable; (b) any obligations for undrawn letters of credit for the account of
that Person; and (c) all obligations from any interest rate, currency or
commodity swap agreement, interest rate cap or collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but "Contingent
Obligation" does not include endorsements in the ordinary course of business.
The amount of a Contingent Obligation is the stated or determined amount of the
primary obligation for which the Contingent Obligation is made or, if not
determinable, the maximum reasonably anticipated liability for it determined by
the Person in good faith; but the amount may not exceed the maximum of the
obligations under the guarantee or other support arrangement.
"Copyrights" are all copyright rights, applications or registrations
and like protections in each work or authorship or derivative work, whether
published or not (whether or not it is a trade secret) now or later existing,
created, acquired or held.
"Current Liabilities" are the aggregate amount of Total Liabilities
which mature within one (1) year.
"Disclosure Letter" means the disclosure letter, dated as of the
Closing Date, addressed from Borrower to Bank, as amended or amended and
restated from time to time.
"ERISA" is the Employment Retirement Income Security Act of 1974, as
amended, and its regulations.
"GAAP" is generally accepted accounting principles.
"Guarantor" is Cypress Semiconductor (Minnesota) Inc. and Cypress
Semiconductor (Texas) Inc.
"Guaranty" is the Unconditional Guaranty dated as of the Closing Date
and executed by each Guarantor.
"Indebtedness" is (a) indebtedness for borrowed money or the deferred
price of property or services, such as reimbursement and other obligations for
surety bonds and letters of credit, (b) obligations evidenced by notes, bonds,
debentures or similar instruments, (c) capital lease obligations and (d)
Contingent Obligations.
"Insolvency Proceeding" are proceedings by or against any Person under
the United States Bankruptcy Code, or any other bankruptcy or insolvency law,
including assignments for
18.
the benefit of creditors, compositions, extensions generally with its creditors,
or proceedings seeking reorganization, arrangement, or other relief.
"Investment" is any beneficial ownership of (including stock,
partnership interest or other securities) any Person, or any loan, advance or
capital contribution to any Person.
"Letter of Credit" is defined in Section 2.1.2.
"Letter of Credit Fees" is defined in Section 2.1.2.
"Lien" is a mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"Loan Documents" are, collectively, this Agreement, any note, or notes
or guaranties executed by Borrower or Guarantor, any pledge agreements, and any
other present or future agreement between Borrower and Bank or for the benefit
of Bank in connection with this Agreement, all as amended, extended or restated.
"Material Adverse Change" has the meaning set forth in Section 3.2(c)
hereof.
"Maturity Date" is September 25, 2005.
"Obligations" are debts, principal, interest, Bank Expenses and other
amounts Borrower owes Bank now or later in connection with this Agreement,
including cash management services and letters of credit, if any, and including
interest accruing after Insolvency Proceedings begin and debts, liabilities, or
obligations of Borrower assigned to Bank.
"Patents" are patents, patent applications and like protections,
including improvements, divisions, continuations, renewals, reissues, extensions
and continuations-in-part of the same.
"Permitted Distributions" means:
(a) purchases of capital stock from former employees,
consultants and directors pursuant to repurchase agreements or other similar
agreements;
(b) distributions or dividends consisting solely of
Borrower's capital stock;
(c) purchases for value of any rights distributed in
connection with any stockholder rights plan;
(d) purchases of capital stock or options to acquire such
capital stock with the proceeds received from a substantially concurrent
issuance of capital stock or convertible securities;
(e) purchases of capital stock pledged as collateral for
loans to employees;
19.
(f) purchases of capital stock in connection with the
exercise of stock options or stock appreciation rights by way of cashless
exercise or in connection with the satisfaction of withholding tax obligations;
(g) purchases of fractional shares of capital stock arising
out of stock dividends, splits or combinations or business combinations;
(h) the settlement or performance of such Person's
obligations under any equity derivative transaction, option contract or similar
transaction or combination of transactions; and
(i) other distributions, dividends or purchases of
Borrower's capital stock in cash, provided that the aggregate amount of such
distributions, dividends, or purchases made pursuant to this clause (i) during
the period commencing on the Closing Date and ending on the date of
determination, when combined with purchases of Subordinated Debt during such
period, shall not exceed 50% of Borrower's consolidated positive cash flow for
the period beginning on June 30, 2003, and ending on the last day of the fiscal
quarter immediately preceding the date of determination, and no Event of Default
exists or will result from such other distribution, dividend, or purchase.
"Permitted Indebtedness" is:
(j) Borrower's Indebtedness to Bank under this Agreement or
any other Loan Document;
(k) (i) Any Indebtedness that does not exceed $5,000,000 in
principal amount existing on the Closing Date, and (ii) any Indebtedness in
excess of $5,000,000 in principal amount existing on the Closing Date and shown
on the Disclosure Letter;
(l) Subordinated Debt;
(m) Indebtedness to trade creditors and with respect to
surety bonds and similar obligations;
(n) Guaranties of Permitted Indebtedness;
(o) Indebtedness consisting of interest rate, currency, or
commodity swap agreements, interest rate cap or collar agreements or
arrangements designated to protect a Person against fluctuations in interest
rates, currency exchange rates, or commodity prices;
(p) Indebtedness between Borrower and any of its
Subsidiaries or among any of Borrower's Subsidiaries;
(q) Up to $200,000,000 in principal amount of Indebtedness
(and related interest and other amounts) of SunPower Corp. and guaranties of
such Indebtedness by Borrower and its Subsidiaries;
(r) Indebtedness with respect to documentary letters of
credit;
20.
(s) Capitalized leases and purchase money Indebtedness
secured by Permitted Liens;
(t) Indebtedness of entities acquired in any permitted
merger or acquisition transaction;
(u) Refinanced Permitted Indebtedness, provided that the
amount of such Indebtedness is not increased except by an amount equal to a
reasonable premium or other reasonable amount paid in connection with such
refinancing and by an amount equal to any existing, but unutilized, commitment
thereunder; and
(v) Other Indebtedness, if, on the date of incurring any
Indebtedness pursuant to this subsection (m), the outstanding aggregate amount
of all Indebtedness incurred pursuant to this subsection (m) does not exceed 20%
of Borrower's consolidated total assets calculated as of the end of the
immediately prior fiscal quarter.
"Permitted Investments" are:
(w) Investments existing on the Closing Date;
(x) (i) Marketable direct obligations issued or
unconditionally guaranteed by the United States or its agencies or any State
maturing within 1 year from its acquisition, (ii) commercial paper maturing no
more than 2 years after its creation and having the highest rating from either
Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc., and (iii)
Bank's certificates of deposit issued maturing no more than 2 years after issue;
(y) Investments approved by the Borrower's Board of
Directors or otherwise pursuant to a Board-approved investment policy;
(z) Investments in or to Borrower or any of its
Subsidiaries;
(aa) Investments consisting of deposit and investment
accounts in the name of Borrower or any Subsidiary;
(bb) Investments consisting of extensions of credit to
Borrower's or its Subsidiaries' customers in the nature of accounts receivable,
prepaid royalties or notes receivable arising from the sale or lease of goods,
provision of services or licensing activities of Borrower;
(cc) Investments received in satisfaction or partial
satisfaction of obligations owed by financially troubled obligors;
(dd) Investments acquired in exchange for any other
Investments in connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization;
(ee) Investments acquired as a result of a foreclosure with
respect to any secured Investment;
21.
(ff) Investments consisting of interest rate, currency, or
commodity swap agreements, interest rate cap or collar agreements or
arrangements designated to protect a Person against fluctuations in interest
rates, currency exchange rates, or commodity prices;
(gg) Investments consisting of loans and advances to
employees; and
(hh) Other Investments, if, on the date of incurring any
Investments pursuant to this subsection (l), the outstanding aggregate amount of
all Investments incurred pursuant to this subsection (l) does not exceed 20% of
Borrower's consolidated total assets calculated as of the end of the immediately
prior fiscal quarter.
"Permitted Liens" are:
(ii) (i) Liens existing on the Closing Date securing
Indebtedness that does not exceed $5,000,000 in principal amount and (ii) Liens
existing on the Closing Date securing Indebtedness in excess of $5,000,000 in
principal amount and shown on the Disclosure Letter or (iii) Liens arising under
this Agreement or other Loan Documents;
(jj) Liens for taxes, fees, assessments or other government
charges or levies, either not delinquent or being contested in good faith and
for which Borrower maintains adequate reserves on its Books, if they have no
priority over any of Bank's security interests;
(kk) Liens (including with respect to capital leases) (i) on
property (including accessions, additions, parts, replacements, fixtures,
improvements and attachments thereto, and the proceeds thereof) acquired or held
by Borrower or its Subsidiaries incurred for financing such property (including
accessions, additions, parts, replacements, fixtures, improvements and
attachments thereto, and the proceeds thereof), or (ii) existing on property
(and accessions, additions, parts, replacements, fixtures, improvements and
attachments thereto, and the proceeds thereof) when acquired, if the Lien is
confined to such property (including accessions, additions, parts, replacements,
fixtures, improvements and attachments thereto, and the proceeds thereof);
(ll) Liens incurred in the extension, renewal or refinancing
of the indebtedness secured by Liens described in (a) through (s), but any
extension, renewal or replacement Lien must be limited to the property
encumbered by the existing Lien and the principal amount of the indebtedness it
secures may not increase;
(mm) Licenses or sublicenses granted in the ordinary course
of Borrower's business and any interest or title of a licensor or under any
license or sublicense, if the licenses and sublicenses permit granting Bank a
security interest;
(nn) Leases or subleases granted in the ordinary course of
Borrower's business, including in connection with Borrower's leased premises or
leased property;
(oo) Liens in favor of custom and revenue authorities
arising as a matter of law to secure the payment of custom duties in connection
with the importation of goods;
22.
(pp) Liens on insurance proceeds securing the payment of
financed insurance premiums;
(qq) Customary Liens granted in favor of a trustee to secure
fees and other amounts owing to such trustee under an indenture or other similar
agreement;
(rr) Liens on assets acquired in mergers and acquisitions
not prohibited by the covenant limiting mergers and acquisitions;
(ss) Liens consisting of pledges of cash, cash equivalents
or government securities to secure swap or foreign exchange contracts or letters
of credit;
(tt) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Sections 8.5 or 8.8;
(uu) Liens in favor of other financial institutions arising
in connection with Borrower's deposit or securities accounts held at such
institutions;
(vv) Carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue for a period of more than 30 days or which are being contested
in good faith and by appropriate proceeding if adequate reserves with respect
thereto are maintained on the books of the applicable Person;
(ww) Pledges or deposits in the ordinary course of business
in connection with workers' compensation, unemployment insurance and other
social security legislation;
(xx) Deposits to secure the performance of bids, trade
contracts (other than for borrowed money), contracts for the purchase of
property, leases, statutory obligations, surety and appeal bonds, performance
bonds and other obligations of a like nature, in each case, incurred in the
ordinary course of business and not representing an obligation for borrowed
money;
(yy) Easements, rights-of-way, restrictions and other
similar encumbrances affecting real property which do not materially detract
from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person; and
(zz) Liens granted by SunPower Corp. in its property in
connection with Indebtedness permitted pursuant to clause (h) of the definition
of "Permitted Indebtedness"; and
(aaa) Liens not otherwise permitted, provided that the
amount of all such Liens is not in excess of 10% of Borrower's consolidated
total assets calculated as of the end of the immediately prior fiscal quarter
(with any such Lien valued as the amount of the obligation secured by such
Lien).
23.
"Person" is any individual, sole proprietorship, partnership, limited
liability company, joint venture, company association, trust, unincorporated
organization, association, corporation, institution, public benefit corporation,
firm, joint stock company, estate, entity or government agency.
"Pledge Agreements" are the Stock Pledge Agreement (100% Pledge) and
the Stock Pledge Agreement (65% Pledge) dated as of the Closing Date by Borrower
in favor of Bank.
"Responsible Officer" is each of the Chief Executive Officer, the
President, the Chief Financial Officer and the Treasurer of Borrower.
"SEC" means the Securities and Exchange Commission.
"Subordinated Debt" is (a) Indebtedness incurred by Borrower
subordinated to Borrower's Indebtedness owed to Bank and which is reflected in a
written agreement in a manner and form reasonably acceptable to Bank and
approved by Bank in writing, and (b) all Indebtedness under both the 2000
Indenture and the 2003 Indenture, and (c) to the extent the terms of
subordination do not change adversely to Bank, refinancings, refundings,
renewals, amendments or extensions of any of the foregoing.
"Subsidiary" is for any Person, or any other business entity of which
more than 50% of the voting stock or other equity interests is owned or
controlled, directly or indirectly, by the Person or one or more Affiliates of
the Person.
"Tangible Net Worth" is, on any date, the consolidated total assets of
Borrower and its Subsidiaries minus (i) any amounts attributable to (without
duplication and exclusive of goodwill, Patents, Trademarks, Copyrights and
research and development expenses relating to acquisitions occurring after the
Closing Date) (a) goodwill, (b) intangible items such as unamortized debt
discount and expense, Patents, Trademarks, Copyrights and research and
development expenses except prepaid expenses, and (c) reserves not already
deducted from assets, and (ii) Total Liabilities.
"Total Liabilities" is on any day, obligations that should, under GAAP,
be classified as liabilities on Borrower's consolidated balance sheet, including
all Indebtedness, and the current portion of Subordinated Debt allowed to be
paid, but excluding all other Subordinated Debt.
"Trademarks" are trademark and servicemark rights, registered or not,
applications to register and registrations and like protections, and the entire
goodwill of the business of Assignor connected with the trademarks.
24.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first set forth above.
BORROWER:
CYPRESS SEMICONDUCTOR CORPORATION
By:___________________________________________________
Printed Name:_________________________________________
Title:________________________________________________
BANK:
SILICON VALLEY BANK
By:___________________________________________________
Printed Name:_________________________________________
Title_________________________________________________
APPENDIX A
LIBOR SUPPLEMENT
1. Definitions.
"Business Day" means, with respect to LIBOR Rate Loans, a day of the
year (a) that is not a Saturday, Sunday or other day on which banks in the State
of California or the City of London are authorized or required to close and (b)
on which dealings are carried on in the interbank market in which Bank
customarily participates.
"Interest Period" means for each LIBOR Rate Loan, a period of
approximately one, two or three months as the Borrower may elect, provided that
the last day of an Interest Period for a LIBOR Rate Loan shall be determined in
accordance with the practices of the LIBOR interbank market as from time to time
in effect, provided, further, in all cases such period shall expire not later
than the applicable Maturity Date.
"Interest Rate" shall mean as to: (a) Prime Rate Loans, a rate equal to
the Prime Rate; and (b) LIBOR Rate Loans, a rate of 1.75% per annum in excess of
the LIBOR Rate (based on the LIBOR Rate applicable for the Interest Period
selected by the Borrower).
"LIBOR Base Rate" means, for any Interest Period for a LIBOR Rate Loan,
the rate of interest per annum determined by Bank to be the per annum rate of
interest as which deposits in United States Dollars are offered to Bank in the
London interbank market in which Bank customarily participates at 11:00 a.m.
(local time in such interbank market) two (2) Business Days before the first day
of such Interest Period for a period approximately equal to such Interest Period
and in an amount approximately equal to the amount of such Loan.
"LIBOR Rate" shall mean, for any Interest Period for a LIBOR Rate Loan,
a rate per annum (rounded upwards, if necessary, to the nearest 1/16 of 1%)
equal to (i) the LIBOR Base Rate for such Interest Period divided by (ii) 1
minus the Reserve Requirement for such Interest Period.
"LIBOR Rate Loans" means any Advances made or a portion thereof on
which interest is payable based on the LIBOR Rate in accordance with the terms
hereof.
"Prime Rate" means the variable rate of interest per annum, most
recently announced by Bank as its "prime rate," whether or not such announced
rate is the lowest rate available from Bank. The interest rate applicable to the
Prime Rate Loans shall change on each date there is a change in the Prime Rate.
"Prime Rate Loans" means any Advances made or a portion thereof on
which interest is payable based on the Prime Rate in accordance with the terms
hereof.
"Regulatory Change" means, with respect to Bank, any change on or after
the date of this Loan Agreement in United States federal, state or foreign laws
or regulations, including Regulation D, or the adoption or making on or after
such date of any interpretations, directives or requests applying to a class of
lenders including Bank of or under any United States federal or
1.
state, or any foreign, laws or regulations (whether or not having the force of
law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
"Reserve Requirement" means, for any Interest Period, the average
maximum rate at which reserves (including any marginal, supplemental or
emergency reserves) are required to be maintained during such Interest Period
under Regulation D against "Eurocurrency liabilities" (as such term is used in
Regulation D) by member banks of the Federal Reserve System. Without limiting
the effect of the foregoing, the Reserve Requirement shall reflect any other
reserves required to be maintained by Bank by reason of any Regulatory Change
against (i) any category of liabilities which includes deposits by reference to
which the LIBOR Rate is to be determined as provided in the definition of "LIBOR
Base Rate" or (ii) any category of extensions of credit or other assets which
include Loans.
2. Requests for Loans. Each LIBOR Rate Loan shall be made upon the irrevocable
written request of Borrower received by Bank not later than 11 :00 a.m. (Santa
Clara, California time) on the Business Day three (3) Business Days prior to the
date such Loan is to be made. Each such notice shall specify the date such Loan
is to be made, which day shall be a Business Day; the amount of such Loan, the
Interest Period for such Loan, and comply with such other requirements as Bank
determines are reasonable or desirable in connection therewith.
Each written request for a LIBOR Rate Loan shall be in the form of a
LIBOR Rate Loan Borrowing Certificate as set forth on Exhibit A, which shall be
duly executed by the Borrower.
Each Prime Rate Loan shall be made upon the irrevocable written request
of Borrower received by Bank not later than 11:00 a.m. (Santa Clara, California
time) on the Business Day one (1) Business day prior to the date such Loan is to
be made. Each such notice shall specify the date such Loan is to be made, which
day shall be a Business Day and the amount of such Loan, and comply with such
other requirements as Bank determines are reasonable or desirable in connection
therewith.
3. Conversion/Continuation of Loans.
(a) Borrower may from time to time submit in writing a request
that Prime Rate Loans be converted to LIBOR Rate Loans or that
any existing LIBOR Rate Loans continue for an additional
Interest Period. Such request shall specify the amount of the
Prime Rate Loans which will constitute LIBOR Rate Loans
(subject to the limits set forth below) and the Interest
Period to be applicable to such LIBOR Rate Loans. Each written
request for a conversion to a LIBOR Rate Loan or a
continuation of a LIBOR Rate Loan shall be substantially in
the form of a LIBOR Rate Conversion/Continuation Certificate
as set forth on Exhibit B to this Supplement which shall be
duly executed by the Borrower. Subject to the terms and
conditions contained herein, three (3) Business Days after
Bank's receipt of such a request from Borrower, such Prime
Rate Loans shall be converted to LIBOR Rate Loans or such
LIBOR Rate Loans shall continue, as the case may be provided
that:
2.
(i) no Event of Default or event which with notice or
passage of time or both would constitute an Event of
Default exists;
(ii) no party hereto shall have sent any notice of
termination of this Supplement or of the Loan
Agreement;
(iii) Borrower shall have complied with such customary
procedures as Bank has established from time to time
for Borrower's requests for LIBOR Rate Loans;
(iv) the amount of a LIBOR Rate Loan shall be $1,000,000
or such greater amount which is an integral multiple
of $100,000; and
(v) Bank shall have determined that the Interest Period
or LIBOR Rate is available to Bank which can be
readily determined as of the date of the request for
such LIBOR Rate Loan.
Any request by Borrower to convert Prime Rate Loans to LIBOR Rate Loans
or continue any existing LIBOR Rate Loans shall be irrevocable. Notwithstanding
anything to the contrary contained herein, Bank shall not be required to
purchase United States Dollar deposits in the London interbank market or other
applicable LIBOR Rate market to fund any LIBOR Rate Loans, but the provisions
hereof shall be deemed to apply as if Bank had purchased such deposits to fund
the LIBOR Rate Loans.
(b) Any LIBOR Rate Loans shall automatically convert to Prime Rate
Loans upon the last day of the applicable Interest Period,
unless Bank has received and approved a complete and proper
request to continue such LIBOR Rate Loan at least three (3)
Business Days prior to such last day in accordance with the
terms hereof. Any LIBOR Rate Loans shall, at Bank's option,
convert to Prime Rate Loans in the event that (i) an Event of
Default, or event which with the notice or passage of time or
both would constitute an Event of Default, shall exist, (ii)
this Supplement or the Loan Agreement shall terminate, or
(iii) the aggregate principal amount of the Prime Rate Loans
which have previously been converted to LIBOR Rate Loans, or
the aggregate principal amount of existing LIBOR Rate Loans
continued, as the case may be, at the beginning of an Interest
Period shall at any time during such Interest Period exceeds
the Committed Revolving Line. Borrower agrees to pay to Bank,
upon demand by Bank (or Bank may, at its option, charge
Borrower's loan account) any amounts required to compensate
Bank for any loss (including loss of anticipated profits),
cost or expense incurred by such person, as a result of the
conversion of LIBOR Rate Loans to Prime Rate Loans pursuant to
any of the foregoing.
(c) On all Loans, Interest shall be payable by Borrower to Bank
monthly in arrears not later than the first (1st) day of each
calendar month at the applicable Interest Rate.
3.
4. Additional Requirements/Provisions Regarding LIBOR Rate Loans, Etc.
(a) If for any reason (including voluntary or mandatory prepayment
or acceleration), Bank receives all or part of the principal
amount of a LIBOR Rate Loan prior to the last day of the
Interest Period for such Loan, Borrower shall immediately
notify Borrower's account officer at Bank and, on demand by
Bank, pay Bank the amount (if any) by which (i) the additional
interest which would have been payable on the amount so
received had it not been received until the last day of such
Interest Period exceeds (ii) the interest which would have
been recoverable by Bank by placing the amount so received on
deposit in the certificate of deposit markets or the offshore
currency interbank markets or United States Treasury
investment products, as the case may be, for a period starting
on the date on which it was so received and ending on the last
day of such Interest Period at the interest rate determined by
Bank in its reasonable discretion. Bank's determination as to
such amount shall be conclusive absent manifest error.
(b) Borrower shall pay to Bank, upon demand by Bank, from time to
time such amounts as Bank may determine to be necessary to
compensate it for any costs incurred by Bank that Bank
determines are attributable to its making or maintaining of
any amount receivable by Bank hereunder in respect of any
Loans relating thereto (such increases in costs and reductions
in amounts receivable being herein called "Additional Costs"),
in each case resulting from any Regulatory Change which:
(i) changes the basis of taxation of any amounts payable
to Bank under this Supplement in respect of any Loans
(other than changes which affect taxes measured by or
imposed on the overall net income of Bank by the
jurisdiction in which such Bank has its principal
office); or
(ii) imposes or modifies any reserve, special deposit or
similar requirements relating to any extensions of
credit or other assets of, or any deposits with or
other liabilities of Bank (including any Loans or any
deposits referred to in the definition of "LIBOR Base
Rate"); or
(iii) imposes any other condition affecting this Supplement
(or any of such extensions of credit or liabilities).
Bank will notify Borrower of any event occurring after the date of the Loan
Agreement which will entitle Bank to compensation pursuant to this section as
promptly as practicable after it obtains knowledge thereof and determines to
request such compensation. Bank will furnish Borrower with a statement setting
forth the basis and amount of each request by Bank for compensation under this
Section 4. Determinations and allocations by Bank for purposes of this Section 4
of the effect of any Regulatory Change on its costs of maintaining its
obligations to make Loans or of making or maintaining Loans or on amounts
receivable by it in respect of Loans, and of the additional amounts required to
compensate Bank in respect of any Additional Costs, shall be conclusive absent
manifest error.
4.
(c) Borrower shall pay to Bank, upon the request of Bank, such
amount or amounts as shall be sufficient (in the sole good
faith opinion of such Bank) to compensate it for any loss,
costs or expense incurred by it as a result of any failure by
Borrower to borrow a Loan on the date for such borrowing
specified in the relevant notice of borrowing hereunder.
(d) If Bank shall determine that the adoption or implementation of
any applicable law, rule, regulation or treaty regarding
capital adequacy, or any change therein, or any change in the
interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by
Bank (or its applicable lending office) with any respect or
directive regarding capital adequacy (whether or not having
the force of law) of any such authority, central bank or
comparable agency, has or would have the effect of reducing
the rate of return on capital of Bank or any person or entity
controlling Bank (a "Parent") as a consequence of its
obligations hereunder to a level below that which Bank (or its
Parent) could have achieved but for such adoption, change or
compliance (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by Bank to be
material, then from time to time, within 15 days after demand
by Bank, Borrower shall pay to Bank such additional amount or
amounts as will compensate Bank for such reduction. A
statement of Bank claiming compensation under this Section and
setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive absent manifest error.
(e) If at any time Bank, in its sole and absolute discretion,
determines that: (i) the amount of the LIBOR Rate Loans for
periods equal to the corresponding Interest Periods are not
available to Bank in the offshore currency interbank markets,
or (ii) the LIBOR Rate does not accurately reflect the cost to
Bank of lending the LIBOR Rate Loan, then Bank shall promptly
give notice thereof to Borrower, and upon the giving of such
notice Banks obligation to make the LIBOR Rate Loans shall
terminate, unless Bank and the Borrower agree in writing to a
different interest rate Loans shall terminate, unless Bank and
the Borrower agree in writing to a different interest rate
applicable to LIBOR Rate Loans. If it shall become unlawful
for Bank to continue to fund or maintain any Loans, or to
perform its obligations hereunder, upon demand by Bank,
Borrower shall prepay the Loans in full with accrued interest
thereon and all other amounts payable by Borrower hereunder
(including, without limitation, any amount payable in
connection with such prepayment pursuant to Section 4(a) of
this Supplement).
5.
EXHIBIT A TO LIBOR SUPPLEMENT
LIBOR RATE LOAN BORROWING CERTIFICATE
The undersigned hereby certifies as follows:
I, ________________________, am the duly elected and acting
__________________ of Cypress Semiconductor Corporation ("Borrower").
This certificate is delivered pursuant to Section 2 of that certain
LIBOR Supplement to Agreement together with the Loan and Security Agreement by
and between Borrower and SILICON VALLEY BANK ("Bank) (the "Loan Agreement"). The
terms used in this Borrowing Certificate which are defined in the Loan Agreement
have the same meaning herein as ascribed to them therein .
Borrower hereby requests on __________________, 200_ a LIBOR Rate Loan
(the "Loan") as follows:
(a) The date on which the Loan is to be made is
______________, 200_.
(b) The amount of the Loan is to be
__________________________ ($__________________) for an Interest Period of
___________ month( s).
All representations and warranties of Borrower stated in the Loan
Agreement are true, correct and complete in all material respects as of the date
of this request for a loan; provided, however, that those representations and
warranties expressly referring to another date shall be true, correct and
complete in all material respects as of such date.
IN WITNESS WHEREOF, this Borrowing Base Certificate is executed by the
undersigned as of this ____ day of _______________, 200_.
CYPRESS SEMICONDUCTOR CORPORATION
By:__________________________________
Title:_______________________________
For Internal Bank Use Only
--------------------------------------------------------------------------------
LIBOR Pricing Date I LIBOR Rate I LIBOR Rate Variance Maturity Date
--------------------------------------------------------------------------------
| | ___% |
--------------------------------------------------------------------------------
1.
EXHIBIT B TO LIBOR SUPPLEMENT
LIBOR RATE CONVERSION/CONTINUATlON CERTIFICATE
The undersigned hereby certifies as follows:
1, ________________________, am the duly elected and acting
_________________ of Cypress Semiconductor Corporation ("Borrower").
This certificate is delivered pursuant to Section 2 of that certain
LIBOR Supplement to Agreement together with the Loan and Security Agreement by
and between Borrower and SILICON VALLEY BANK ("Bank") (the "Loan Agreement").
The terms used in this LIBOR Rate Conversion/Continuation Certificate which are
defined in the Loan Agreement .have the same meaning herein as ascribed to them
therein.
Borrower hereby requests on ____________, 200_ a LIBOR Rate Loan (the
"Loan") as follows:
(a) ____ (i) A rate conversion of an existing Prime Rate Loan
from a Prime Rate Loan to a LIBOR Rate Loan; or
____ (ii) A continuation of an existing LIBOR Rate Loan as a
LIBOR Rate Loan;
[Check (i) or (ii) above]
(b) The date on which the Loan is to be made is ___________, 200_.
(c) The amount of the Loan is to be _____________($_____________),
for an Interest Period of ___________ month(s).
All representations and warranties of Borrower stated in the Loan
Agreement are true, correct and complete in all material respects as of the date
of this request for a loan; provided, however, that those representations and
warranties expressly referring to another date shall be true, correct and
complete in all material respects as of such date.
1.
IN WITNESS WHEREOF, this LIBOR Rate Conversion/Continuation Certificate
is executed by the undersigned as of this __ day of ___________, 200_.
CYPRESS SEMICONDUCTOR CORPORATION
By:_______________________________
Title:____________________________
For Internal Bank Use Only
--------------------------------------------------------------------------------
LIBOR Pricing Date I LIBOR Rate I LIBOR Rate Variance Maturity Date
--------------------------------------------------------------------------------
| | ___% |
--------------------------------------------------------------------------------
2.
EXHIBIT A
Forms of Stock Pledge Agreements
1.
EXHIBIT B
PRIME RATE LOAN PAYMENT/ADVANCE REQUEST FORM
DEADLINE FOR SAME DAY PROCESSING IS 12:00 NOON PACIFIC TIME
Fax To: Date:
--------------------------- ----------------------
Borrower: Cypress Semiconductor Corporation
|_| Loan Payment:
From Account # To Account #
----------------------------------------- -----------------------------------------
(Name and Deposit Account #) (Loan Account #)
Principal $ and/or Interest $
----------------------------------- ------------------------------------------------
Borrower's representations and warranties in the Loan and Security Agreement are
true, correct and complete in all material respects on and as of the date
hereof, but those representations and warranties expressly referring to another
date shall be true, correct and complete in all material respects as of such
date.
Authorized Signature: Phone Number:
----------------------------------------- -------------------------------
|_| LOAN ADVANCE:
Complete Outgoing Wire Request section below if all or a portion of the funds
from this loan advance are for an outgoing wire.
From Account # To Account #
--------------------------------------- --------------------------------
(Loan Account #) (Name and Deposit Account #)
Amount of Advance $
----------------------------------
Borrower's representations and warranties in the Loan and Security Agreement are
true, correct and complete in all material respects on and as of the date of the
requested Advance, but those representations and warranties expressly referring
to another date shall be true, correct and complete in all material respects as
of such date.
Authorized Signature: Phone Number:
-------------------------------- ------------------------------
OUTGOING WIRE REQUEST
Complete only if all or a portion of funds from the loan advance above are to be
wired. Deadline for same day processing is 12:00 noon, Pacific Time
Beneficiary Name: Amount of Wire: $
------------------------------------ ------------------------------------
Beneficiary Bank: Account Number:
------------------------------------ -------------------------------------
City and State:
--------------------------------------
Beneficiary Bank Transit (ABA) #: Beneficiary Bank Code (Swift, Sort, Chip, etc.):
------------------- ----
(For International Wire Only)
Intermediary Bank: Transit (ABA) #:
---------------------------------- -------------------------------------
For Further Credit to:
----------------------------------------------------------------------------------
Special Instruction:
-----------------------------------------------------------------------------------
1.
By signing below, I (we) acknowledge and agree that my (our) funds transfer
request shall be processed in accordance with and subject to the terms and
conditions set forth in the agreements(s) covering funds transfer service(s),
which agreements(s) were previously received and executed by me (us).
Authorized Signature: 2nd Signature (if required):
-------------------------------- -------------------------
Print Name/Title: Print Name/Title:
------------------------------------ ------------------------------------
Telephone # Telephone #
----------------------------------------- -----------------------------------------
2.
EXHIBIT C
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
0000 Xxxxxx Xxxxx
Xxxxx Xxxxx, XX 00000
FROM: Cypress Semiconductor Corporation
0000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
The undersigned authorized officer of CYPRESS SEMICONDUCTOR CORPORATION
("Borrower") certifies that under the terms and conditions of the Loan and
Security Agreement between Borrower and Bank (the "Agreement"), (i) Borrower is
in complete compliance for the period ending _______________ with all required
covenants, except as noted below, and (ii) all representations and warranties in
the Agreement are true and correct in all material respects on this date (but
those representations and warranties expressly referring to another date shall
be true, correct, and complete in all material respects as of such date).
Attached are the required documents supporting the certification. The
undersigned officer certifies that such documents were prepared in accordance
with Generally Accepted Accounting Principles (GAAP) consistently applied from
one period to the next, except as explained in an accompanying letter or
footnotes. The undersigned officer acknowledges that no borrowings may be
requested at any time or date of determination that Borrower is not in
compliance with any of the terms of the Agreement, and that compliance is
determined not just at the date this certificate is delivered.
Please indicate compliance status by circling Yes/No under "Complies"
column.
Financial Covenant Required Actual Complies
------------------ -------- ------ --------
Maintain on a Quarterly Basis:
------------------------------
Quick Ratio Not less than 1.00:1.00 $________ Yes No
Tangible Net Worth Not less than $600,000,000 $________ Yes No
Reporting Covenant Required Complies
------------------ -------- --------
Cash holding report Quarterly within 30 days Yes No
A/R Aging Quarterly within 30 days Yes No
10K and 10Q reports & Compliance Within 5 days of filing Yes No
Certificate
Financial Projections Annually within 45 days of FYE Yes No
2
Sincerely,
CYPRESS SEMICONDUCTOR CORPORATION BANK USE ONLY
------------------------------------------- Received By:
SIGNATURE --------------------------------
AUTHORIZED SIGNER
-------------------------------------------
TITLE Date:
---------------------------------------
------------------------------------------- Verified:
Date -----------------------------------
AUTHORIZED SIGNER
Date:
---------------------------------------
Compliance Status: Yes No
3.
TABLE OF CONTENTS
PAGE
1. ACCOUNTING AND OTHER TERMS....................................................................................1
2. LOAN AND TERMS OF PAYMENT.....................................................................................1
2.1 Promise to Pay......................................................................................1
2.2 Overadvances........................................................................................3
2.3 Interest Rate, Payments.............................................................................3
2.5 Fees ...............................................................................................3
3. CONDITIONS OF LOANS...........................................................................................3
3.1 Conditions Precedent to Initial Credit Extension....................................................3
3.2 Conditions Precedent to all Credit Extensions.......................................................4
4. CREATION OF SECURITY INTEREST.................................................................................4
4.1 Grant of Security Interest..........................................................................4
5. REPRESENTATIONS AND WARRANTIES................................................................................5
5.1 Due Organization and Authorization..................................................................5
5.2 Collateral..........................................................................................5
5.3 Litigation..........................................................................................5
5.4 No Material Adverse Change in Financial Statements..................................................5
5.5 Solvency............................................................................................6
5.6 Regulatory Compliance...............................................................................6
5.7 Subsidiaries........................................................................................6
5.8 Full Disclosure.....................................................................................6
6. AFFIRMATIVE COVENANTS.........................................................................................6
6.1 Government Compliance...............................................................................7
6.2 Financial Statements, Reports, Certificates.........................................................7
6.3 Inventory; Returns..................................................................................7
6.4 Taxes...............................................................................................7
6.5 Insurance...........................................................................................7
6.7 Financial Covenants.................................................................................8
6.10 Use of Proceeds....................................................................................8
6.12 Further Assurances.................................................................................8
TABLE OF CONTENTS
(CONTINUED)
PAGE
7. NEGATIVE COVENANTS............................................................................................8
7.1 Dispositions........................................................................................8
7.2 Changes in Business, Ownership, Management or Business Locations....................................9
7.3 Mergers or Acquisitions.............................................................................9
7.4 Indebtedness........................................................................................9
7.5 Encumbrance.........................................................................................9
7.6 Distributions; Investments.........................................................................10
7.7 Transactions with Affiliates.......................................................................10
7.8 Subordinated Debt..................................................................................10
7.9 Compliance.........................................................................................10
8. EVENTS OF DEFAULT............................................................................................11
8.1 Payment Default....................................................................................11
8.2 Covenant Default...................................................................................11
8.3 Material Adverse Change............................................................................11
8.4 Attachment.........................................................................................11
8.5 Insolvency.........................................................................................11
8.6 Other Agreements...................................................................................11
8.7 Judgments..........................................................................................12
8.8 Misrepresentations.................................................................................12
8.9 Guaranty...........................................................................................12
9. BANK'S RIGHTS AND REMEDIES...................................................................................12
9.1 Rights and Remedies................................................................................12
9.2 Power of Attorney..................................................................................13
9.4 Bank Expenses......................................................................................13
9.5 Bank's Liability for Collateral....................................................................13
9.6 Remedies Cumulative................................................................................13
9.7 Demand Waiver......................................................................................13
10. NOTICES.....................................................................................................13
11. CHOICE OF LAW , VENUE AND JURY TRIAL WAIVER.................................................................14
12. GENERAL PROVISIONS..........................................................................................14
ii.
TABLE OF CONTENTS
(CONTINUED)
PAGE
12.1 Successors and Assigns............................................................................14
12.2 Indemnification...................................................................................14
12.3 Time of Essence...................................................................................14
12.4 Severability of Provision.........................................................................14
12.5 Amendments in Writing, Integration................................................................15
12.6 Counterparts......................................................................................15
12.7 Survival..........................................................................................15
12.8 Confidentiality...................................................................................15
12.9 Attorneys' Fees, Costs and Expenses...............................................................15
13. DEFINITIONS.................................................................................................15
iii.
An extra section break has been inserted above this paragraph. Do not delete
this section break if you plan to add text after the Table of
Contents/Authorities. Deleting this break will cause Table of
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Table of Contents/Authorities.
