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Senior Facility Agreement

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Title:

Senior Facility Agreement

Entities:

Lennar Corp.

Date:

2007

Size:

Preview shows 66KB of 196KB total

Price:

$60

ID:

#2846954

► Loans ► Facility ► Senior Facility Agreements
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EXECUTION VERSION

SENIOR FACILITY AGREEMENT

dated 30 March 2007

for

SPANSION JAPAN LIMITED

arranged by

GE CAPITAL LEASING CORPORATION

as Mandated Lead Arranger

and

SUMISHO LEASE CO., LTD.

and

MITSUI LEASING & DEVELOPMENT, LTD.

as Sub-Arrangers

WITH

GE CAPITAL LEASING CORPORATION

acting as Administrative Agent

RESONA BANK, LIMITED

acting as Paying Agent

and

GE CAPITAL LEASING CORPORATION

acting as Security Agent

SENIOR FACILITY AGREEMENT

CONTENTS


Clause		Page
1.	Definitions and Interpretation	1
2.	The Facility	14
3.	Purpose	14
4.	Conditions of Utilisation	14
5.	Utilisation - Loans	16
6.	Repayment	18
7.	Illegality, Prepayment and Cancellation	18
8.	Restrictions	20
9.	Interest	22
10.	Interest Periods	22
11.	Changes to the Calculation of Interest	23
12.	Fees	24
13.	Tax Gross-Up and Indemnities	25
14.	Increased Costs	28
15.	Other Indemnities	29
16.	Mitigation by the Lenders	29
17.	Costs and Expenses	30
18.	Representations	31
19.	Information Undertakings	35
20.	General Undertakings	37
21.	Events of Default	41
22.	Changes to the Lenders	47
23.	Changes to the Borrower	51
24.	Role of the Agents, the Arrangers and Others	52
25.	Conduct of Business by the Finance Parties	62
26.	Sharing Among the Finance Parties	62
27.	Payment Mechanics	65
28.	Set-Off	67
29.	Application of Proceeds	68
30.	Notices	69
31.	Calculations and Certificates	70
32.	Partial Invalidity	71
33.	Remedies and Waivers	71
34.	Amendments and Waivers	71
35.	Notarised Deed (Kousei Shosho)	72
36.	Counterparts	72
37.	Governing Law	73
38.	Enforcement	73


SCHEDULE 1	THE ORIGINAL LENDERS	74
SCHEDULE 2	CONDITIONS PRECEDENT	75
SCHEDULE 3	UTILISATION REQUEST	78
SCHEDULE 4	FORM OF TRANSFER CERTIFICATE	79
SCHEDULE 5	TIMETABLES	81
SCHEDULE 6	MANUFACTURING EQUIPMENT	82
SCHEDULE 7	REFINANCING FINANCIAL INDEBTEDNESS REPAYMENT AMOUNTS	83
SCHEDULE 8	EXISTING LEASED SEMICONDUCTOR EQUIPMENT	84

Exhibit A	Parent Prepayment Letter

THIS AGREEMENT is dated 30 March 2007 and made between:

(1)	SPANSION JAPAN LIMITED as borrower (the Borrower);

(2)	GE CAPITAL LEASING CORPORATION as mandated lead arranger (the Mandated Lead Arranger);

(3)	SUMISHO LEASE CO., LTD and MITSUI LEASING & DEVELOPMENT, LTD. as sub-arrangers (the Sub-Arrangers);

(4)	THE FINANCIAL INSTITUTIONS listed in Schedule 1 (The Original Lenders) as lenders (the Original Lenders);

(5)	GE CAPITAL LEASING CORPORATION as administrative agent of the other Finance Parties (the Administrative Agent);

(6)	RESONA BANK, LIMITED as paying agent of the other Finance Parties (the Paying Agent); and

(7)	GE CAPITAL LEASING CORPORATION as security agent for the Finance Parties (the Security Agent).

IT IS AGREED as follows:

SECTION 1

INTERPRETATION

1.	DEFINITIONS AND INTERPRETATION

1.1	Definitions

In this Agreement:

Accounting Principles means generally accepted accounting principles in Japan.

Affiliate means, in relation to any person, a Subsidiary of that person or a Holding Company of that person or any other Subsidiary of that Holding Company.

Agent means the Administrative Agent, the Paying Agent, or as the case may be, the Security Agent.

Agreed Lenders means GE Capital Asset Finance Corporation, Resona Bank, Limited, Showa Leasing Co., Ltd., Sumisho Lease Co., Ltd., Mitsui Leasing & Development, Ltd., UFJ Central Leasing Co., Ltd., BOT Lease Co., Ltd., Diamond Lease Company Limited, NTT Finance Corporation, Kyodo Leasing Co., Ltd., Century Leasing System, Inc.

Annual Financial Statements has the meaning given to that term in Clause 19 (Information Undertakings).

Arrangers means the Mandated Lead Arranger and the Sub-Arrangers.

Auditors means Ernst & Young LLP or such other internationally recognised firm of accountants approved in advance by the Administrative Agent.

- 1 -

Authorisation means an authorisation, consent, approval, resolution, licence, exemption, filing, notarisation or registration.

Availability Period means the period from and including the date of this Agreement to and including 31 March 2008.

Available Commitment means the amount of a Lenders Commitment under the Facility minus the amount of its participation in any outstanding Utilisation.

Available Facility means the aggregate for the time being of each Lenders Available Commitment.

Break Costs means the amount (if any) by which:

(a)

the interest which a Lender should have received for the period from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the principal amount or Unpaid Sum received been paid on the last day of that Interest Period;

exceeds:

(b)

the amount which that Lender would be able to obtain by placing an amount equal to the principal amount or Unpaid Sum received by it on deposit with a leading bank in the Tokyo interbank market for a period starting on the Business Day following receipt or recovery and ending on the last day of the current Interest Period.

Business Day means a day (other than a Saturday or Sunday) on which banks are open for general business in Tokyo.

Charged Property means all of the assets of the Borrower which from time to time are, or are expressed to be, the subject of the Transaction Security.

Commitment means:

(c)

in relation to an Original Lender, the amount set opposite its name under the heading Commitment in Schedule 1 (The Original Parties) and the amount of any other Commitment transferred to it under this Agreement; and

(d)

in relation to any other Lender, the amount of any Commitment transferred to it under this Agreement,

to the extent not cancelled, reduced or transferred by it under this Agreement.

Confidentiality Undertaking means a confidentiality undertaking in the form agreed between the Borrower and the Administrative Agent.

Default means an Event of Default or any event or circumstance specified in Clause 21 (Events of Default) which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.

- 2 -

Delegate means any delegate, agent, attorney or co-trustee appointed by the Security Agent.

Disruption Event means either or both of:

(a)

a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with the Facility (or otherwise in order for the transactions contemplated by the Finance Documents to be carried out) which disruption is not caused by, and is beyond the control of, any of the Parties; or

(b)

the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of a Party preventing that, or any other Party:

(i)

from performing its payment obligations under the Finance Documents; or

(ii)

from communicating with other Parties in accordance with the terms of the Finance Documents,

and which (in either such case) is not caused by, and is beyond the control of, the Party whose operations are disrupted.

Environmental Claim means any claim, proceeding, formal notice or investigation by any person in respect of any Environmental Law.

Environmental Law means any applicable law or regulation which relates to:

(a)

the pollution or protection of the environment;

(b)

harm to or the protection of human health;

(c)

the conditions of the workplace; or

(d)

any emission or substance capable of causing harm to any living organism or the environment.

Environmental Permits means any permit and other Authorisation and the filing of any notification, report or assessment required under any Environmental Law for the operation of the business of the Borrower conducted on or from the properties owned or used by the Borrower.

Event of Default means any event or circumstance specified as such in Clause 21 (Events of Default).

Excluded Insurance Proceeds means any proceeds of an insurance claim (other than the proceeds of Insurances in the case of paragraphs (a) and (b) below) which the Borrower intends to apply and which are applied:

(a)

to meet a third party claim;

- 3 -

(b)

to cover operating losses in respect of which the relevant insurance claim was made; or

(c)

subject, in relation to any Manufacturing Equipment which is subject to Transaction Security, to the consent of the Administrative Agent (not to be unreasonably withheld), to the replacement, reinstatement and/or repair of the assets or otherwise in amelioration of the loss in respect of which the relevant insurance claim was made,

in each case as soon as possible (but in any event within 30 days, or such longer period as the Administrative Agent may agree) after receipt.

Exemption Event means:

(a)

any event that occurs within the Tokyo interbank market that disables loans in Japanese Yen; or

(b)

any other event not attributable to the Lenders that results in it being impossible for at least the Majority Lenders to make the Facility available.

Existing Leased Semiconductor Equipment means the leased semiconductor equipment as set out in Schedule 8 (Existing Leased Semiconductor Equipment).

Facility means the term loan facility made available under this Agreement as described in Clause 2.1 (The Facility).

Facility Office means:

(a)

in respect of a Lender, the office or offices notified by that Lender to the Administrative Agent in writing on or before the date it becomes a Lender (or, following that date, by not less than five Business Days written notice) as the office or offices through which it will perform its obligations under this Agreement; or

(b)

in respect of any other Finance Party, the office in the jurisdiction in which it is resident for tax purposes.

Fee Letter means any letter or letters dated on or about the date of this Agreement between an Arranger and the Borrower (or the Administrative Agent and the Borrower) setting out any of the fees referred to in Clause 12 (Fee).

Finance Document means this Agreement, any Fee Letter, any Transaction Security Document, any Utilisation Request, the Parent Prepayment Letter and any other document designated as a Finance Document by the Administrative Agent and the Borrower.

Finance Party means the Administrative Agent, the Paying Agent, the Arrangers, the Security Agent or a Lender.

Financial Indebtedness means any indebtedness for or in respect of:

(a)

moneys borrowed and debit balances at banks or other financial institutions;

- 4 -

(b)

any acceptance under any acceptance credit or bill discounting facility (or dematerialised equivalent);

(c)

any note purchase facility or the issue of bonds, notes, debentures, loan stock or any similar instrument;

(d)

the amount of any liability in respect of any lease or hire purchase contract which would, in accordance with the Accounting Principles, be treated as a finance or capital lease;

(e)

receivables sold or discounted (other than any receivables to the extent they are sold on a non-recourse basis (save to the extent that such recourse arises by reason of the gross negligence or wilful misconduct of the seller));

(f)

any Treasury Transaction (and, when calculating the value of that Treasury Transaction, only the marked to market value (or, if any actual amount is due as a result of the termination or close-out of that Treasury Transaction, that amount) shall be taken into account);

(g)

any counter-indemnity obligation in respect of a guarantee, bond, standby or documentary letter of credit or any instrument issued by a bank or financial institution (but not including any liability in connection with any documentary (but not standby) letter of credit other than the amount of any actual (and not contingent) liability which is outstanding for more than 90 days after its due date);

(h)

any amount of any liability under an advance or deferred purchase agreement if (i) one of the primary reasons behind entering into the agreement is to raise finance or to finance the acquisition or construction of the asset or service in question or (ii) the agreement is in respect of the supply of assets or services and payment is due more than 90 days after the date of supply;

(i)

any amount raised under any other transaction (including any forward sale or purchase, sale and sale-back or sale and leaseback agreement) having the commercial effect of a borrowing or otherwise classified as borrowings under the Accounting Principles but in any case excluding any lease carried on the books of the Borrower as an operating lease relating to personal property or real property; and

(j)

the amount of any liability in respect of any guarantee for any of the items referred to in paragraphs (a) to (i) above.

Financial Year means the annual accounting period of the Borrower ending on or about 31 December in each year.

Foundry Agreement means the second amended and restated foundry agreement dated on or about the date hereof between the Borrower and the Parent.

Holding Company means, in relation to a company or corporation, any other company or corporation in respect of which it is a Subsidiary.

- 5 -

Information Memorandum means the document in the form approved by the Borrower concerning the Borrower which was prepared in relation to this transaction and distributed by the Arrangers before the date of this Agreement.

Insurance Proceeds means the proceeds of any insurance claim received by the Borrower except for Excluded Insurance Proceeds and after deducting any expenses in relation to that claim which are reasonably incurred by the Borrower to third parties.

Insurances means casualty insurance for an amount equal to the full value (as determined by the Security Agent) of the assets which are subject to Transaction Security from time to time and which names the Borrower as a loss payee.

Intellectual Property means:

(a)

any patents, trade marks, service marks, designs, business names, copyrights, design rights, moral rights, inventions, confidential information, knowhow and other intellectual property rights and interests, whether registered or unregistered; and

(b)

the benefit of all applications and rights to use such assets of the Borrower.

Interest Period means, in relation to a Loan, each period determined in accordance with Clause 10 (Interest Periods) and, in relation to an Unpaid Sum, each period determined in accordance with Clause 9.3 (Default interest).

JV1 means that certain wafer fabrication facility adjacent to JV2 located at Monden Kogyodanchi 6, Aizu-Wakamatsu-shi, Fukushima 965-0845, Japan owned by Borrower.

JV2 means that certain wafer fabrication facility adjacent to JV1 located at Monden Kogyodanchi 6, Aizu-Wakamatsu-shi, Fukushima 965-0845, Japan owned by Borrower.

JV3 means that certain wafer fabrication facility adjacent to SP1 located at Takaku Kogyodanchi 2, Aizu-Wakamatsu-shi, Fukushima 965-0060, Japan owned by Borrower.

Lender means:

(a)

any Original Lender; and

(b)

any bank, financial institution, trust, fund or other entity which has become a Party in accordance with Clause 22 (Changes to the Lenders),

which in each case has not ceased to be a Party in accordance with the terms of this Agreement.

Liquidity Facility means the revolving credit facility made available under the Liquidity Facility Agreement.

Liquidity Facility Agreement means the US$200,000,000 (or the equivalent in any other currency) liquidity facility agreement dated on or about the date hereof between the Borrower and the Parent.

Loan means a loan made or to be made under the Facility or the principal amount outstanding for the time being of that loan.

- 6 -

Majority Lenders means:

(a)

if there are no Loans then outstanding, a Lender or Lenders whose Commitments aggregate more than 66²/3 per cent. of the Total Commitments (or, if the Total Commitments have been reduced to zero, aggregated more than 66²/3 per cent. of the Total Commitments immediately prior to that reduction); and

(b)

at any other time, a Lender or Lenders whose participations in any Loan then outstanding aggregate more than 66²/3 per cent. of the Loans then outstanding.

Manufacturing Equipment means the manufacturing equipment set out in Schedule 6 (Manufacturing Equipment) under the heading Manufacturing Equipment.

Margin means 2 per cent. per annum.

Material Adverse Effect means a material adverse effect on:

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