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AMD - Term Loan And Security Agreement, Dated As Of July 11, 2003
Exhibit 10.51
AMENDED AND RESTATED TERM LOAN AGREEMENT
Dated as of July 11, 2003
Among
THE FINANCIAL INSTITUTIONS NAMED HEREIN
as the Lenders,
GENERAL ELECTRIC CAPITAL CORPORATION
as the Agent
and
FASL LLC,
as the Borrower
TABLE OF CONTENTS
Section Page
ARTICLE 1 INTERPRETATION OF THIS AGREEMENT 2
1.1
Definitions 2
1.2
Accounting Terms; UCC Terms 21
1.3
Interpretive Provisions 21
ARTICLE 2 TERM LOANS 22
2.1
Term Loans 22
ARTICLE 3 INTEREST AND FEES 23
3.1
Interest 23
3.2
[Reserved] 23
3.3
Maximum Interest Rate 23
3.4
Fees 24
ARTICLE 4 PAYMENTS AND PREPAYMENTS 24
4.1
Loans 24
4.2
Termination of Facility 24
4.3
Payments by the Borrower 25
4.4
[Reserved] 26
4.5
Apportionment, Application and Reversal of Payments 26
4.6
Indemnity for Returned Payments 26
4.7
Agent's and Lenders' Books and Records; Monthly Statements 27
4.8
Mandatory Prepayments of Loans 27
ARTICLE 5 TAXES, YIELD PROTECTION AND ILLEGALITY 28
5.1
Taxes 28
5.2
Illegality 29
5.3
Increased Costs and Reduction of Return 29
5.4
Funding Losses 29
5.5
Inability to Determine Rates 30
5.6
Automatic Conversion of LIBOR Rate Loans to Base Rate Loans 30
5.7
Certificates of Lenders 30
5.8
Survival 30
ARTICLE 6 COLLATERAL 31
6.1
Perfection and Protection of Security Interest. 31
6.2
Title to, Liens on, and Sale and Use of Collateral 31
Section Page
6.3
Access and Examination; Confidentiality 31
ARTICLE 7 BOOKS AND RECORDS; FINANCIAL INFORMATION; NOTICES 32
7.1
Books and Records 32
7.2
Financial Information 32
7.3
Notices to the Lenders 34
ARTICLE 8 GENERAL WARRANTIES AND REPRESENTATIONS 36
8.1
Authorization, Validity, and Enforceability of this Agreement and the Loan Documents 36
8.2
Validity and Priority of Security Interest 37
8.3
Organization and Qualification 37
8.4
Corporate Name; Prior Transactions 37
8.5
Subsidiaries and Affiliates 37
8.6
Financial Statements and Projections 37
8.7
Solvency 38
8.8
Debt 38
8.9
Distributions 38
8.10
Title to Property 38
8.11
[Reserved] 38
8.12
Litigation 38
8.13
Restrictive Agreements 38
8.14
Labor Disputes 38
8.15
Environmental Laws 39
8.16
No Violation of Law 39
8.17
No Default 39
8.18
ERISA Compliance 40
8.19
Taxes 40
8.20
Regulated Entities 40
8.21
Use of Proceeds; Margin Regulations 40
8.22
Copyrights, Patents, Trademarks and Licenses, etc 41
8.23
No Material Adverse Change 41
8.24
Full Disclosure 41
8.25
Governmental Authorization 41
8.26
Insurance 41
ARTICLE 9 AFFIRMATIVE AND NEGATIVE COVENANTS 42
9.1
Taxes and Other Obligations 42
9.2
Corporate Existence and Good Standing 42
9.3
Compliance with Law and Agreements; Maintenance of Licenses 42
9.4
Maintenance of Property 43
ii
Section Page
9.5
Insurance 43
9.6
Environmental Laws 43
9.7
Compliance with ERISA 44
9.8
Mergers, Consolidations or Sales 44
9.9
Distributions; Capital Change; Restricted Investments 45
9.10
Transactions Affecting Collateral or Obligations 45
9.11
Guaranties 45
9.12
Debt 45
9.13
Prepayment 46
9.14
Transactions with Affiliates 46
9.15
Investment Banking and Finder's Fees 47
9.16
Business Conducted 47
9.17
Liens 47
9.18
Fiscal Year 47
9.19
Adjusted Tangible Net Worth 47
9.20
EBITDA 48
9.21
Fixed Charge Coverage Ratio 48
9.22
Use of Proceeds 48
9.23
Interest Rate Protection 49
9.24
Further Assurances 49
9.25
Impairment of Intercompany Transfers 49
9.26
No Speculative Transactions 50
ARTICLE 10 CONDITIONS PRECEDENT 50
10.1
Conditions to Effectiveness 50
ARTICLE 11 DEFAULT; REMEDIES 53
11.1
Events of Default 53
11.2
Remedies 55
ARTICLE 12 TERM AND TERMINATION 57
12.1
Term and Termination 57
12.2
Termination of Existing Loan Agreement and Mutual Release 57
ARTICLE 13 AMENDMENTS; WAIVER; PARTICIPATIONS; ASSIGNMENTS; SUCCESSORS 57
13.1
No Waivers; Cumulative Remedies 57
13.2
Amendments and Waivers 58
13.3
Assignments; Participations 58
ARTICLE 14 THE AGENT 60
iii
Section Page
14.1
Appointment and Authorization 60
14.2
Delegation of Duties 61
14.3
Liability of Agent 61
14.4
Reliance by Agent-Related Persons 61
14.5
Notice of Default 62
14.6
Credit Decision 62
14.7
Indemnification 63
14.8
Agent in Individual Capacity 63
14.9
Successor Agent 63
14.10
Withholding Tax 64
14.11
Collateral Matters. 64
14.12
Restrictions on Actions by Lenders; Sharing of Payments. 65
14.13
Agency for Perfection 66
14.14
Payments by Agent to Lenders 66
14.15
Concerning the Collateral and the Related Loan Documents 66
14.16
[Reserved] 66
14.17
Relation Among Lenders 66
14.18
Other Agents 66
ARTICLE 15 MISCELLANEOUS 67
15.1
Cumulative Remedies; No Prior Recourse to Collateral 67
15.2
Severability 67
15.3
Governing Law; Choice of Forum; Service of Process; Jury Trial Waiver 67
15.4
WAIVER OF JURY TRIAL 68
15.5
Survival of Representations and Warranties 68
15.6
Other Security and Guaranties 68
15.7
Fees and Expenses 69
15.8
Notices 69
15.9
Waiver of Notices 70
15.10
Binding Effect 71
15.11
Indemnity of the Agent-Related Persons and the Lenders by the Borrower. 71
15.12
Limitation of Liability 71
15.13
Final Agreement 71
15.14
Counterparts 72
15.15
Captions 72
15.16
Right of Setoff 72
iv
EXHIBITS AND SCHEDULES
EXHIBIT A ? FORM OF GUARANTY
EXHIBIT B ? FORM OF ENVIRONMENTAL INDEMNITY
EXHIBIT C ? SUBORDINATION PROVISIONS
SCHEDULE A ? PRINCIPAL AMORTIZATION SCHEDULE
SCHEDULE 8.3 ? ORGANIZATION AND QUALIFICATIONS
SCHEDULE 8.5 ? SUBSIDIARIES
SCHEDULE 8.8 ? DEBT
SCHEDULE 8.10 ? TITLE TO PROPERTY
SCHEDULE 8.12 ? LITIGATION
SCHEDULE 8.15 ? ENVIRONMENTAL LAW
SCHEDULE 8.22 ? INTELLECTUAL PROPERTY
SCHEDULE 9.11 ? GUARANTIES
SCHEDULE 9.14 ? AFFILIATE TRANSACTIONS
SCHEDULE 9.17 ? EXISTING LIENS
v
AMENDED AND RESTATED TERM LOAN AGREEMENT
Amended and Restated Term Loan Agreement, dated as of July 11, 2003, among the financial institutions listed on the signature pages hereof (such financial institutions, together with their respecti