Exhibit 10.36
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WELLS
FARGO
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REVOLVING LINE OF CREDIT
NOTE
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$7,500,000.00
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San Jose, California
March 11, 2009
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FOR VALUE RECEIVED, the undersigned
Magma Design Automation, Inc. (“Borrower”)
promises to pay to the order of WELLS FARGO BANK, NATIONAL
ASSOCIATION (“Bank”) at its office at Santa Clara
Valley RCBO, 121 Park Center Plaza, 2nd Floor, San Jose, CA
95113, or at such other place as the holder hereof may
designate, in lawful money of the United States of America and in
immediately available funds, the principal sum of
$7,500,000.00, or so much thereof as may be advanced and be
outstanding, with interest thereon, to be computed on each advance
from the date of its disbursement as set forth herein.
1. DEFINITIONS:
As used herein, the following terms
shall have the meanings set forth after each, and any other term
defined in this Note shall have the meaning set forth at the place
defined:
1.1 “Business Day” means
any day except a Saturday, Sunday or any other day on which
commercial banks in California are authorized or required by law to
close.
1.2 “Fixed Rate Term”
means a period commencing on a Business Day and continuing for 1
month , as designated by Borrower, during which all or a
portion of the outstanding principal balance of this Note bears
interest determined in relation to LIBOR; provided however, that no
Fixed Rate Term may be selected for a principal amount less than
$100,000.00 ; and provided further, that no Fixed Rate Term
shall extend beyond the scheduled maturity date hereof. If any
Fixed Rate Term would end on a day which is not a Business Day,
then such Fixed Rate Term shall be extended to the next succeeding
Business Day.
1.3 “LIBOR” means the
rate per annum (rounded upward, if necessary, to the nearest whole
1/8 of 1%) determined by dividing Base LIBOR by a percentage equal
to 100% less any LIBOR Reserve Percentage.
(a) “Base LIBOR” means
the rate per annum for United States dollar deposits quoted by Bank
as the Inter-Bank Market Offered Rate, with the understanding that
such rate is quoted by Bank for the purpose of calculating
effective rates of interest for loans making reference thereto, on
the first day of a Fixed Rate Term for delivery of funds on said
date for a period of time approximately equal to the number of days
in such Fixed Rate Term and in an amount approximately equal to the
principal amount to which such Fixed Rate Term applies. Borrower
understands and agrees that Bank may base its quotation of the
Inter-Bank Market Offered Rate upon such offers or other market
indicators of the Inter-Bank Market as Bank in its discretion deems
appropriate including, but not limited to, the rate offered for
U.S. dollar deposits on the London Inter-Bank Market.
(b) “LIBOR Reserve
Percentage” means the reserve percentage prescribed by the
Board of Governors of the Federal Reserve System (or any successor)
for “Eurocurrency Liabilities” (as defined in
Regulation D of the Federal Reserve Board, as amended), adjusted by
Bank for expected changes in such reserve percentage during the
applicable Fixed Rate Term.
1.4 “Prime Rate” means
at any time the rate of interest most recently announced within
Bank at its principal office as its Prime Rate, with the
understanding that the Prime Rate is one of Bank’s base rates
and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such
internal publication or publications as Bank may
designate.
Page 1
2. INTEREST:
2.1 Interest . The
outstanding principal balance of this Note shall bear interest
(computed on the basis of a 360-day year, actual days elapsed)
either (a) at a fluctuating rate per annum 3.50000% above the
Prime Rate in effect from time to time, or (b) at a fixed rate
per annum determined by Bank to be 3.50000% above LIBOR in effect
on the first day of the applicable Fixed Rate Term. When interest
is determined in relation to the Prime Rate, each change in the
rate of interest hereunder shall become effective on the date each
Prime Rate change is announced within Bank. With respect to each
LIBOR selection option selected hereunder, Bank is hereby
authorized to note the date, principal amount, interest rate and
Fixed Rate Term applicable thereto and any payments made thereon on
Bank’s books and records (either manually or by electronic
entry) and/or on any schedule attached to this Note, which
notations shall be prima facie evidence of the accuracy of the
information noted.
2.2 Selection of Interest Rate
Options . At any time any portion of this Note bears interest
determined in relation to LIBOR, it may be continued by Borrower at
the end of the Fixed Rate Term applicable thereto so that all or a
portion thereof bears interest determined in relation to the Prime
Rate or to LIBOR for a new Fixed Rate Term designated by Borrower.
At any time any portion of this Note bears interest determined in
relation to the Prime Rate, Borrower may convert all or a portion
thereof so that it bears interest determined in relation to LIBOR
for a Fixed Rate Term designated by Borrower. At such time as
Borrower requests an advance hereunder or wishes to select a LIBOR
option for all or a portion of the outstanding principal balance
hereof, and at the end of each Fixed Rate Term, Borrower shall give
Bank notice specifying: (a) the interest rate option selected
by Borrower; (b) the principal amount subject thereto; and
(c) for each LIBOR selection, the length of the applicable
Fixed Rate Term. Any such notice may be given by telephone (or such
other electronic method as Bank may permit) so long as, with
respect to each LIBOR selection, (i) if requested by Bank,
Borrower provides to Bank written confirmation thereof not later
than 3 Business Days after such notice is given, and (ii) such
notice is given to Bank prior to 10:00 a.m. on the first day of the
Fixed Rate Term, or at a later time during any Business Day if
Bank, at it’s sole option but without obligation to do so,
accepts Borrower’s notice and quotes a fixed rate to
Borrower. If Borrower does not immediately accept a fixed rate when
quoted by Bank, the quoted rate shall expire and any subsequent
LIBOR request from Borrower shall be subject to a redetermination
by Bank of the applicable fixed rate. If no specific designation of
interest is made at the time any advance is requested hereunder or
at the end of any Fixed Rate Term, Borrower shall be deemed to have
made a Prime Rate interest selection for such advance or the
principal amount to which such Fixed Rate Term applied.
2.3 Taxes and Regulatory
Costs . Borrower shall pay to Bank immediately upon demand, in
addition to any other amounts due or to become due hereunder, any
and all (a) withholdings, interest equalization taxes, stamp
taxes or other taxes (except income and franchise taxes) imposed by
any domestic or foreign governmental authority and related in any
manner to LIBOR, and (b) future, supplemental, emergency or
other changes in the LIBOR Reserve Percentage, assessment rates
imposed by the Federal Deposit Insurance Corporation, or similar
requirements or costs imposed by any domestic or foreign
governmental authority or resulting from compliance by Bank with
any request or directive (whether or not having the force of law)
from any central bank or other governmental authority and related
in any manner to LIBOR to the extent they are not included in the
calculation of LIBOR. In determining which of the foregoing are
attributable to any LIBOR option available to Borrower hereunder,
any reasonable allocation made by Bank among its operations shall
be conclusive and binding upon Borrower.
2.4 Payment of Interest .
Interest accrued on this Note shall be payable on the last
day of each month , commencing March 31, 2009
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2.5 Default Interest . From
and after the maturity date of this Note, or such earlier date as
all principal owing hereunder becomes due and payable by
acceleration or otherwise, the outstanding principal balance of
this Note shall bear interest until paid in full at an increased
rate per annum (computed on the basis of a 360 -day year,
actual days elapsed) equal to 4% above the rate of interest from
time to time applicable to this Note.
Page 2
3. BORROWING AND REPAYMENT:
3.1 Borrowing and Repayment .
Borrower may from time to time during the term of this Note borrow,
partially or wholly repay its outstanding borrowings, and reborrow,
subject to all of the limitations, terms and conditions of this
Note and of the Credit Agreement between Borrower and Bank defined
below; provided however, that the total outstanding borrowings
under this Note shall not at any time exceed the principal amount
stated above. The unpaid principal balance of this obligation at
any time shall be the total amounts advanced hereunder by the
holder hereof less the amount of principal payments made hereon by
or for Borrower, which balance may be endorsed hereon from time to
time by the holder. The outstanding principal balance of this Note
shall be due and payable in full on December 31, 2009
.
3.2 Advances . Advances
hereunder, to the total amount of the principal sum available
hereunder, may be made by the holder at the oral or written request
of (a) Peter Teshima or Greg S. Wagenhoffer , any one
acting alone, who are authorized to request advances and direct the
disposition of any advances until written notice of the revocation
of such authority is received by the holder at the office
designated above, or (b) any person, with respect to advances
deposited to the credit of any deposit account of Borrower, which
advances, when so deposited, shall be conclusively presumed to have
been made to or for the benefit of Borrower regardless of the fact
that persons other than those authorized to request advances may
have authority to draw against such account. The holder shall have
no obligation to determine whether any person requesting an advance
is or has been authorized by Borrower.
3.3 Application of Payments .
Each payment made on this Note shall be credited first, to any
interest then due and second, to the outstanding principal balance
hereof. All payments credited to principal shall be applied first,
to the outstanding principal balance of this Note which bears
interest determined in relation to the Prime Rate, if any, and
second, to the outstanding principal balance of this Note which
bears interest determined in relation to LIBOR, with such payments
applied to the oldest Fixed Rate Term first.
4. PREPAYMENT:
4.1 Prime Rate . Borrower may
prepay principal on any portion of this Note which bears interest
determined in relation to the Prime Rate at any time, in any amount
and without penalty.
4.2 LIBOR . Borrower may
prepay principal on any portion of this Note which bears interest
determined in relation to LIBOR at any time and in the minimum
amount of $100,000.00 ; provided however, that if the
outstanding principal balance of such portion of this Note is less
than said amount, the minimum prepayment amount shall be the entire
outstanding principal balance thereof. In consideration of Bank
providing this prepayment option to Borrower, or if any such
portion of this Note shall become due and payable at any time prior
to the last day of the Fixed Rate Term applicable thereto by
acceleration or otherwise, Borrower shall pay to Bank immediately
upon demand a fee which is the sum of the discounted monthly
differences for each month from the month of prepayment through the
month-in-which such Fixed Rate Term matures, calculated as follows
for each such month:
(a) Determine the amount of
interest which would have accrued each month on the amount prepaid
at the interest rate applicable to such amount had it remained
outstanding until the last day of the Fixed Rate Term applicable
thereto.
(b) Subtract from the amount
determined in (a) above the amount of interest which would
have accrued for the same month on the amount prepaid for the
remaining term of such Fixed Rate Term at LIBOR in effect on the
date of prepayment for new loans made for such term and in a
principal amount equal to the amount prepaid.
(c) If the result obtained in
(b) for any month is greater than zero, discount that
difference by LIBOR used in (b) above.
Page 3
Borrower acknowledges that prepayment of such
amount may result in Bank incurring additional costs, expenses
and/or liabilities, and that it is difficult to ascertain the full
extent of such costs, expenses and/or liabilities. Borrower,
therefore, agrees to pay the above-described prepayment fee and
agrees that said amount represents a reasonable estimate of the
prepayment costs, expenses and/or liabilities of Bank. If Borrower
fails to pay any prepayment fee when due, the amount of such
prepayment fee shall thereafter bear interest until paid at a rate
per annum 2.000% above the Prime Rate in effect from time to
time (computed on the basis of a 360 -day year, actual days
elapsed).
5. EVENTS OF
DEFAULT:
This Note is made pursuant to and is
subject to the terms and conditions of that certain Credit
Agreement between Borrower and Bank dated as of October 31,
2008 , as amended from time to time (the “Credit
Agreement”). Any default in the payment or performance of any
obligation under this Note, or any defined event of default under
the Credit Agreement, shall constitute an “Event of
Default” under this Note.
6. MISCELLANEOUS:
6.1 Remedies . Upon the
occurrence of any Event of Default, the holder of this Note, at the
holder’s option, may declare all sums of principal and
interest outstanding hereunder to be immediately due and payable
without presentment, demand, notice of nonperformance, notice of
protest, protest or notice of dishonor, all of which are expressly
waived by Borrower, and the obligation, if any, of the holder to
extend any further credit hereunder shall immediately cease and
terminate. Borrower shall pay to the holder immediately upon demand
the full amount of all payments, advances, charges, costs and
expenses, including reasonable attorneys’ fees (to include
outside counsel fees and all allocated costs of the holder’s
in-house counsel), expended or incurred by the holder in connection
with the enforcement of the holder’s rights and/or the
collection of any amounts which become due to the holder under this
Note, and the prosecution or defense of any action in any way
related to this Note, including without limitation, any action for
declaratory relief, whether incurred at the trial or appellate
level, in an arbitration proceeding or otherwise, and including any
of the foregoing incurred in connection with any bankruptcy
proceeding (including without limitation, any adversary proceeding,
contested matter or motion brought by Bank or any other person)
relating to Borrower or any other person or entity.
6.2 Obligations Joint and
Several . Should more than one person or entity sign this Note
as a Borrower, the obligations of each such Borrower shall be joint
and several.
6.3 Governing Law . This Note
shall be governed by and construed in accordance with the laws of
the State of California.
IN WITNESS WHEREOF the undersigned
has executed this Note as of the date first written
above.
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Magma Design
Automation, Inc.
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By:
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Peter Teshima,
Chief Financial Officer
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By:
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Roy Jewell,
President
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Page 4
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WELLS
FARGO
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REVOLVING LINE OF CREDIT
NOTE
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$7,500,000.00
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San Jose, California
March 11, 2009
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FOR VALUE RECEIVED, the undersigned
Magma Design Automation, Inc. (“Borrower”)
promises to pay to the order of WELLS FARGO BANK, NATIONAL
ASSOCIATION (“Bank”) at its office at Santa Clara
Valley RCBO, 121 Park Center Plaza, 2nd Floor, San Jose, CA
95113 , or at such other place as the holder hereof may
designate, in lawful money of the United States of America and in
immediately available funds, the principal sum of
$7,500,000.00 , or so much thereof as may be advanced and be
outstanding, with interest thereon, to be computed on each advance
from the date of its disbursement as set forth herein.
1. DEFINITIONS:
As used herein, the following terms
shall have the meanings set forth after each, and any other term
defined in this Note shall have the meaning set forth at the place
defined:
1.1 “Business Day” means
any day except a Saturday, Sunday or any other day on which
commercial banks in California are authorized or required by law to
close.
1.2 “Fixed Rate Term”
means a period commencing on a Business Day and continuing for 1
month , as designated by Borrower, during which all or a
portion of the outstanding principal balance of this Note bears
interest determined in relation to LIBOR; provided however, that no
Fixed Rate Term may be selected for a principal amount less than
$100,000.00 ; and provided further, that no Fixed Rate Term
shall extend beyond the scheduled maturity date hereof. If any
Fixed Rate Term would end on a day which is not a Business Day,
then such Fixed Rate Term shall be extended to the next succeeding
Business Day.
1.3 “LIBOR” means the
rate per annum (rounded upward, if necessary, to the nearest whole
1/8 of 1%) determined by dividing Base LIBOR by a percentage equal
to 100% less any LIBOR Reserve Percentage.
(a) “Base LIBOR” means
the rate per annum for United States dollar deposits quoted by Bank
as the Inter-Bank Market Offered Rate, with the understanding that
such rate is quoted by Bank for the purpose of calculating
effective rates of interest for loans making reference thereto, on
the first day of a Fixed Rate Term for delivery of funds on said
date for a period of time approximately equal to the number of days
in such Fixed Rate Term and in an amount approximately equal to the
principal amount to which such Fixed Rate Term applies. Borrower
understands and agrees that Bank may base its quotation of the
Inter-Bank Market Offered Rate upon such offers or other market
indicators of the Inter-Bank Market as Bank in its discretion deems
appropriate including, but not limited to, the rate offered for
U.S. dollar deposits on the London Inter-Bank Market.
(b) “LIBOR Reserve
Percentage” means the reserve percentage prescribed by the
Board of Governors of the Federal Reserve System (or any successor)
for “Eurocurrency Liabilities” (as defined in
Regulation D of the Federal Reserve Board, as amended), adjusted by
Bank for expected changes in such reserve percentage during the
applicable Fixed Rate Term.
1.4 “Prime Rate” means
at any time the rate of interest most recently announced within
Bank at its principal office as its Prime Rate, with the
understanding that the Prime Rate is one of Bank’s base rates
and serves as the basis upon which effective rates of interest are
calculated for those loans making reference thereto, and is
evidenced by the recording thereof after its announcement in such
internal publication or publications as Bank may
designate.
Page 1
2. INTEREST:
2.1 Interest . The
outstanding principal balance of this Note shall bear interest
(computed on the basis of a 360 -day year, actual days
elapsed) either (a) at a fluctuating rate per annum
1.50000% above the Prime Rate in effect from time to time,
or (b) at a fixed rate per annum determined by Bank to be
1.50000% above LIBOR in effect on the first day of the
applicable Fixed Rate Term. When interest is determined in relation
to the Prime Rate, each change in the rate of interest hereunder
shall become effective on the date each Prime Rate change is
announced within Bank. With respect to each LIBOR selection option
selected hereunder, Bank is hereby authorized to note the date,
principal amount, interest rate and Fixed Rate Term applicable
thereto and any payments made thereon on Bank’s books and
records (either manually or by electronic entry) and/or on any
schedule attached to this Note, which notations shall be prima
facie evidence of the accuracy of the information noted.
2.2 Selection of Interest Rate
Options . At any time any portion of this Note bears interest
determined in relation to LIBOR, it may be continued by Borrower at
the end of the Fixed Rate Term applicable thereto so that all or a
portion thereof bears interest determined in relation to the Prime
Rate or to LIBOR for a new Fixed Rate Term designated by Borrower.
At any time any portion of this Note bears interest determined in
relation to the Prime Rate, Borrower may convert all or a portion
thereof so that it bears interest determined in relation to LIBOR
for a Fixed Rate Term designated by Borrower. At such time as
Borrower requests an advance hereunder or wishes to select a LIBOR
option for all or a portion of the outstanding principal balance
hereof, and at the end of each Fixed Rate Term, Borrower shall give
Bank notice specifying: (a) the interest rate option selected
by Borrower; (b) the principal amount subject thereto; and
(c) for each LIBOR selection, the length of the applicable
Fixed Rate Term. Any such notice may be given by telephone (or such
other electronic method as Bank may permit) so long as, with
respect to each LIBOR selection, (i) if requested by Bank,
Borrower provides to Bank written confirmation thereof not later
than 3 Business Days after such notice is given, and (ii) such
notice is given to Bank prior to 10:00 a.m. on the first day of the
Fixed Rate Term, or at a later time during any Business Day if
Bank, at it’s sole option but without obligation to do so,
accepts Borrower’s notice and quotes a fixed rate to
Borrower. If Borrower does not immediately accept a fixed rate when
quoted by Bank, the quoted rate shall expire and any subsequent
LIBOR request from Borrower shall be subject to a redetermination
by Bank of the applicable fixed rate. If no specific designation of
interest is made at the time any advance is requested hereunder or
at the end of any Fixed Rate Term, Borrower shall be deemed to have
made a Prime Rate interest selection for such advance or the
principal amount to which such Fixed Rate Term applied.
2.3 Taxes and Regulatory
Costs . Borrower shall pay to Bank immediately upon demand, in
addition to any other amounts due or to become due hereunder, any
and all (a) withholdings, interest equalization taxes, stamp
taxes or other taxes (except income and franchise taxes) imposed by
any domestic or foreign governmental authority and related in any
manner to LIBOR, and (b) future, supplemental, emergency or
other changes in the LIBOR Reserve Percentage, assessment rates
imposed by the Federal Deposit Insurance Corporation, or similar
requirements or costs imposed by any domestic or foreign
governmental authority or resulting from compliance by Bank with
any request or directive (whether or not having the force of law)
from any central bank or other governmental authority and related
in any manner to LIBOR to the extent they are not included in the
calculation of LIBOR. In determining which of the foregoing are
attributable to any LIBOR option available to Borrower hereunder,
any reasonable allocation made by Bank among its operations shall
be conclusive and binding upon Borrower.
2.4 Payment of Interest .
Interest accrued on this Note shall be payable on the last
day of each month , commencing March 31, 2009
.
2.5 Default Interest . From
and after the maturity date of this Note, or such earlier date as
all principal owing hereunder becomes due and payable by
acceleration or otherwise, the outstanding principal balance of
this Note shall bear interest until paid in full at an increased
rate per annum (computed on the basis of a 360 -day year,
actual days elapsed) equal to 4% above the rate of interest from
time to time applicable to this Note.
Page 2
3. BORROWING AND REPAYMENT:
3.1 Borrowing and Repayment .
Borrower may from time to time during the term of this Note borrow,
partially or wholly repay its outstanding borrowings, and reborrow,
subject to all of the limitations, terms and conditions of this
Note and of the Credit Agreement between Borrower and Bank defined
below; provided however, that the total outstanding borrowings
under this Note shall not at any time exceed the principal amount
stated above. The unpaid principal balance of this obligation at
any time shall be the total amounts advanced hereunder by the
holder hereof less the amount of principal payments made hereon by
or for Borrower, which balance may be endorsed hereon from time to
time by the holder. The outstanding principal balance of this Note
shall be due and payable in full on December 31, 2009
.
3.2 Advances . Advances
hereunder, to the total amount of the principal sum available
hereunder, may be made by the holder at the oral or written request
of (a) Peter Teshima or Greg S. Wagenhoffer , any one
acting alone, who are authorized to request advances and direct the
disposition of any advances until written notice of the revocation
of such authority is received by the holder at the office
designated above, or (b) any person, with respect to advances
deposited to the credit of any deposit account of Borrower, which
advances, when so deposited, shall be conclusively presumed to have
been made to or for the benefit of Borrower regardless of the fact
that persons other than those authorized to request advances may
have authority to draw against such account. The holder shall have
no obligation to determine whether any person requesting an advance
is or has been authorized by Borrower.
3.3 Application of Payments .
Each payment made on this Note shall be credited first, to any
interest then due and second, to the outstanding principal balance
hereof. All payments credited to principal shall be applied first,
to the outstanding principal balance of this Note which bears
interest determined in relation to the Prime Rate, if any, and
second, to the outstanding principal balanc