EXHIBIT 10.60
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of
September 28, 2001, is made among Cadence Design Systems, Inc., a Delaware
corporation (the "Borrower"), the financial institutions listed on the signature
pages hereof 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, and ABN AMRO Bank N.V., as administrative agent for the
Banks (in such capacity, the "Agent").
The Borrower, the Banks and the Agent are parties to that certain Credit
Agreement, dated as of September 29, 2000, (as amended, restated, supplemented
and otherwise modified from time to time, the "Credit Agreement"). The Borrower
has requested that the Majority Banks agree to certain amendments to the Credit
Agreement to permit certain investments in Telos Venture Partners II, L.P., in
addition to the investments presently permitted in Telos Venture Partners, L.P.
The Majority Banks have agreed to such request, subject to the terms and
conditions hereof.
Accordingly, the parties hereto agree as follows:
SECTION 1 Definitions; Interpretation.
(a) Terms Defined in Credit Agreement. All capitalized terms used in
this Amendment (including in the Recitals hereof) and not otherwise defined
herein shall have the meanings assigned to them in the Credit Agreement.
(b) Interpretation. The rules of interpretation set forth in Section
1.03 of the Credit Agreement shall be applicable to this Amendment and are
incorporated herein by this reference.
SECTION 2 Amendments to the Credit Agreement.
(a) Amendments. The Credit Agreement shall be amended as follows,
effective as of the date of satisfaction of the conditions set forth in Section
3 (the "Effective Date"):
(i) The defined term "Tality IPO" in Section 1.01 of the Credit
Agreement shall be amended and restated in its entirety as follows:
""Tality IPO" means the initial public offering of the
Borrower's design-services operation pursuant to terms and conditions
substantially consistent with those disclosed in the Borrower's Form S-1
filed with the Securities Exchange Commission on July 17, 2000
(registration number 333-41552)."
(ii) The defined term "Venture Fund" in Section 1.01 of the Credit
Agreement shall be amended and restated in its entirety as follows:
""Venture Fund" means, collectively, Telos Venture Partners,
L.P. and Telos Venture Partners II, L.P."
(iii) Subsection 9.04(e)(vi) of Credit Agreement shall be amended and
restated in its entirety as follows:
"(vi) investments in the Venture Funds, so long as the aggregate
unrecovered investment made therein (not counting recoveries fairly
characterized as income) does not exceed $150,000,000."
(b) References Within Credit Agreement. Each reference in the Credit
Agreement to "this Agreement" and the words "hereof," "herein," "hereunder," or
words of like import, shall mean and be a reference to the Credit Agreement as
amended by this Amendment.
SECTION 3 Conditions of Effectiveness. The effectiveness of this
Amendment shall be subject to the satisfaction of each of the following
conditions precedent:
(a) Executed Amendment. The Agent shall have received an executed
counterpart of this Amendment from the Borrower and the Majority Banks.
(b) Representations and Warranties; No Default. On the Effective
Date, after giving effect to the amendment of the Credit Agreement contemplated
hereby:
(i) the representations and warranties contained in Section 4 hereof
shall be true and correct on and as of the Effective Date as though made on and
as of such date; and
(ii) no Default shall have occurred and be continuing.
(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.
SECTION 4 Representations and Warranties of the Borrower. To induce the
Majority Banks to enter into this Amendment, the Borrower hereby confirms and
restates, as of the date hereof, the representations and warranties made by it
in Section 8.01 of the Credit Agreement and in the other Loan Documents. For the
purposes of this Section 4, (i) each reference in Section 8.01 of the Credit
Agreement to "this Agreement," and the words "hereof," "herein," "hereunder," or
words of like import in such Section, shall mean and be a reference to the
Credit Agreement as amended by this Amendment, and each reference in such
Section to "the Loan Documents" shall mean and be a reference to the Loan
Documents as amended as contemplated hereby, (ii) the representation and
warranty set forth in Section 8.01(p) of the Credit Agreement shall be deemed
instead to refer to the last day of the most recent fiscal quarter and fiscal
year for which financial statements have then been delivered, (iii) any
representations and warranties which relate solely to an earlier date shall not
be deemed confirmed and restated as of the date hereof (provided that such
representations and warranties shall be true, correct and complete as of such
earlier date), and (iv) the preceding clause (i) shall take into account any
amendments to the Schedules and other disclosures made in writing by the
Borrower to the Agent and the Banks after the Closing Date and approved by the
Agent and the Majority Banks.
2.
SECTION 5 Miscellaneous.
(a) Notice. The Agent shall notify the Borrower and the Banks of the
occurrence of the Effective Date.
(b) Credit Agreement Otherwise Not Affected. Except as expressly
amended pursuant hereto, the Credit Agreement shall remain unchanged and in full
force and effect and is hereby ratified and confirmed in all respects. The
Banks' and the Agent's execution and delivery of, or acceptance of, this
Amendment and any other documents and instruments in connection herewith
(collectively, the "Amendment Documents") shall not be deemed to create a course
of dealing or otherwise create any express or implied duty by any of them to
provide any other or further amendments, consents or waivers in the future.
(c) No Reliance By Borrower. The Borrower hereby acknowledges and
confirms to the Agent and the Banks that the Borrower is executing this
Amendment and the other Amendment Documents on the basis of its own
investigation and for its own reasons without reliance upon any agreement,
representation, understanding or communication by or on behalf of any other
Person.
(d) Costs and Expenses. The Borrower agrees to pay to the Agent on
demand the reasonable out-of-pocket costs and expenses of the Agent, and the
reasonable fees and disbursements of counsel to the Agent, in connection with
the negotiation, preparation, execution and delivery of this Amendment and any
other documents to be delivered in connection herewith.
(e) Binding Effect. This Amendment shall be binding upon, inure to
the benefit of and be enforceable by the Borrower, the Agent and each Bank and
their respective successors and assigns.
(f) Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA.
(g) Complete Agreement; Amendments. This Amendment, together with
the other Amendment Documents and the other Loan Documents, contains the entire
and exclusive agreement of the parties hereto and thereto with reference to the
matters discussed herein and therein. This Amendment supersedes all prior
commitments, drafts, communications, discussion and understandings, oral or
written, with respect thereto. This Amendment may not be modified, amended or
otherwise altered except in accordance with the terms of Section 12.01 of the
Credit Agreement.
(h) Severability. Whenever possible, each provision of this
Amendment shall be interpreted in such manner as to be effective and valid under
all applicable laws and regulations. If, however, any provision of this
Amendment shall be prohibited by or invalid under any such law or regulation in
any jurisdiction, it shall, as to such jurisdiction, be deemed modified to
conform to the minimum requirements of such law or regulation, or, if for any
reason it is not deemed so modified, it shall be ineffective and invalid only to
the extent of such prohibition or
3.
invalidity without affecting the remaining provisions of this Amendment, or the
validity or effectiveness of such provision in any other jurisdiction.
(i) Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
(j) Interpretation. This Amendment and the other Amendment Documents
are the result of negotiations between and have been reviewed by counsel to the
Agent, the Borrower and other parties, and are the product of all parties
hereto. Accordingly, this Amendment and the other Amendment Documents shall not
be construed against any of the Banks or the Agent merely because of the Agent's
or any Bank's involvement in the preparation thereof.
(k) Loan Documents. This Amendment and the other Amendment Documents
shall constitute Loan Documents.
[SIGNATURE PAGES FOLLOW.]
4.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment, as of the date first above written.
THE BORROWER
CADENCE DESIGN SYSTEMS, INC.
By
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Name:
Title:
5.
THE AGENT
ABN AMRO BANK N.V., AS AGENT
By
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Name:
Title:
By
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Name:
title:
6.
THE BANKS
ABN AMRO BANK N.V., AS A BANK
By
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Name:
Title:
By
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Name:
Title:
7.
BANK OF AMERICA, N.A.
By
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Name:
Title:
8.
BANK ONE, N.A.
By
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Name:
Title:
9.
KEYBANK NATIONAL ASSOCIATION
By
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Name:
Title:
10.
UBS AG, STAMFORD BRANCH
By
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Name:
Title:
By
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Name:
Title:
11.
BARCLAYS BANK PLC
By
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Name:
Title:
12.
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By
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Name:
Title:
13.
FLEET NATIONAL BANK
By
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Name:
Title:
14.
MELLON BANK, N.A.
By
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Name:
Title:
15.
THE BANK OF NOVA SCOTIA
By
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Name:
Title:
16.
BANK HAPOALIM B.M.
By
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Name:
Title:
17.
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By
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Name:
Title:
By
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Name:
Title:
18.
THE FUJI BANK LIMITED
By
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Name:
Title:
19.