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