EX-10.4 3 dex104.htm TERM LOAN AGREEMENT Term Loan Agreement

Exhibit 10.4

 


 

CREDIT AGREEMENT

 

dated as of

 

August 9, 2005

 

among

 

CITRIX SYSTEMS INTERNATIONAL GMBH,

as Borrower,

 

The Lenders Party Hereto

 

and

 

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent, as Collateral Agent and as UK Security Trustee

 


 

J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger

 



TABLE OF CONTENTS

 

          Page

ARTICLE I Definitions

   1

SECTION 1.01.

  

Defined Terms

   1

SECTION 1.02.

  

Classification of Loans and Borrowings

   14

SECTION 1.03.

  

Terms Generally

   14

SECTION 1.04.

  

Accounting Terms; GAAP

   15

ARTICLE II The Credits

   15

SECTION 2.01.

  

Commitments

   15

SECTION 2.02.

  

Loans and Borrowings

   15

SECTION 2.03.

  

Funding of Borrowings

   15

SECTION 2.04.

  

Interest Elections

   16

SECTION 2.05.

  

Repayment of Loans; Evidence of Debt

   17

SECTION 2.06.

  

Prepayment of Loans

   18

SECTION 2.07.

  

Fees

   18

SECTION 2.08.

  

Interest

   19

SECTION 2.09.

  

Alternate Rate of Interest

   19

SECTION 2.10.

  

Increased Costs

   20

SECTION 2.11.

  

Break Funding Payments

   21

SECTION 2.12.

  

Taxes

   21

SECTION 2.13.

  

Payments Generally; Pro Rata Treatment; Sharing of Set-offs

   23

SECTION 2.14.

  

Mitigation Obligations; Replacement of Lenders

   24

ARTICLE III Representations and Warranties

   25

SECTION 3.01.

  

Organization; Powers

   25

SECTION 3.02.

  

Authorization; Enforceability

   25

SECTION 3.03.

  

Governmental Approvals; No Conflicts

   25

SECTION 3.04.

  

Financial Condition; No Material Adverse Change

   25

SECTION 3.05.

  

Properties

   26

SECTION 3.06.

  

Litigation and Environmental Matters

   26

SECTION 3.07.

  

Compliance with Laws and Agreements

   26

SECTION 3.08.

  

Investment and Holding Company Status

   26

SECTION 3.09.

  

Taxes

   26

SECTION 3.10.

  

Foreign Pension Plans

   27

SECTION 3.11.

  

Disclosure

   27

SECTION 3.12.

  

Security Documents

   28

SECTION 3.13.

  

Subsidiaries

   28

SECTION 3.14.

  

Environmental Matters

   28

ARTICLE IV Conditions

   28

SECTION 4.01.

  

Effective Date

   28

ARTICLE V Affirmative Covenants

   30

SECTION 5.01.

  

Financial Statements and Other Information

   30

 

i


SECTION 5.02.

  

Notices of Material Events

   30

SECTION 5.03.

  

Existence; Conduct of Business

   31

SECTION 5.04.

  

Payment of Obligations

   31

SECTION 5.05.

  

Maintenance of Properties; Insurance

   31

SECTION 5.06.

  

Books and Records; Inspection Rights

   31

SECTION 5.07.

  

Compliance with Laws

   32

SECTION 5.08.

  

Use of Proceeds

   32

SECTION 5.09.

  

Further Assurances; etc.

   32

SECTION 5.10.

  

Ownership of Subsidiaries; etc.

   33

SECTION 5.11.

  

Additional Guarantors and Collateral

   33

ARTICLE VI Negative Covenants

   34

SECTION 6.01.

  

Indebtedness

   34

SECTION 6.02.

  

Liens

   34

SECTION 6.03.

  

Fundamental Changes

   34

SECTION 6.04.

  

Investments, Loans, Advances, Guarantees and Acquisitions

   35

SECTION 6.05.

  

Swap Agreements

   35

SECTION 6.06.

  

Restricted Payments

   35

SECTION 6.07.

  

Transactions with Affiliates

   35

SECTION 6.08.

  

Restrictive Agreements

   35

SECTION 6.09.

  

Minimum Interest Coverage Ratio

   36

SECTION 6.10.

  

Maximum Leverage Ratio

   36

SECTION 6.11.

  

Fiscal Year

   36

SECTION 6.12.

  

Subordinated Indebtedness; Other Indebtedness and Payments

   36

ARTICLE VII Events of Default

   36

ARTICLE VIII The Administrative Agent

   39

ARTICLE IX Miscellaneous

   42

SECTION 9.01.

  

Notices

   42

SECTION 9.02.

  

Waivers; Amendments

   43

SECTION 9.03.

  

Expenses; Indemnity; Damage Waiver

   44

SECTION 9.04.

  

Successors and Assigns

   45

SECTION 9.05.

  

Survival

   48

SECTION 9.06.

  

Counterparts; Integration; Effectiveness

   48

SECTION 9.07.

  

Severability

   48

SECTION 9.08.

  

Right of Setoff

   48

SECTION 9.09.

  

Governing Law; Jurisdiction; Consent to Service of Process

   49

SECTION 9.10.

  

Waiver of Jury Trial

   49

SECTION 9.11.

  

Headings

   50

SECTION 9.12.

  

Confidentiality

   50

SECTION 9.13.

  

Interest Rate Limitation

   50

SECTION 9.14.

  

USA PATRIOT Act

   51

SECTION 9.15.

  

Conversion of Currencies

   51

 

ii


SCHEDULES:

 

Schedule 1.01 — Pricing Schedule

Schedule 2.01 — Commitments

Schedule 3.06 — Disclosed Matters

Schedule 3.13 — Subsidiaries

Schedule 6.08 — Existing Restrictions

 

EXHIBITS:

 

Exhibit A — Form of Assignment and Assumption

Exhibit B — Corporate Investment Policy

 

iii


CREDIT AGREEMENT dated as of August 9, 2005, among CITRIX SYSTEMS INTERNATIONAL GMBH, as Borrower, the LENDERS party hereto, and JPMORGAN CHASE BANK, N.A., as Administrative Agent, as Collateral Agent and as UK Security Trustee.

 

The parties hereto agree as follows:

 

ARTICLE I

 

Definitions

 

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:

 

ABR”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Alternate Base Rate.

 

Acquired Entity or Business” means either (a) the assets constituting a business, division, facility, product line or line of business of any Person not already a Subsidiary or (b) 80% or more of the capital stock of any such Person, which Person shall, as a result of such acquisition or merger, either (i) become a Wholly-Owned Subsidiary of the Borrower (or shall be merged with and into the Borrower or a Subsidiary Guarantor, with the Borrower or such Subsidiary Guarantor being the surviving Person) or (ii) become a Controlled Subsidiary.

 

Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, an interest rate per annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the Statutory Reserve Rate.

 

Administrative Agent” means JPMorgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders hereunder.

 

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

 

Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control, with the Person specified.

 

Agreement” means this Credit Agreement, as amended, restated, modified or supplemented from time to time.

 

Alternate Base Rate” means, for any day, a rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus  1/2 of 1%. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate shall be effective from and including the effective date of such change in the Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, respectively.


Applicable Percentage” means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments.

 

Applicable Rate” means, for any day, with respect to any ABR Loan or Eurodollar Loan, or with respect to the facility fees payable hereunder, as the case may be, the applicable rate per annum set forth in Schedule 1.01 under the caption “ABR”, “Eurodollar Rate” or “Facility Fee”, as the case may be, based upon the Leverage Ratio.

 

Approved Fund” has the meaning assigned to such term in Section 9.04.

 

Assessment Rate” means, for any day, the annual assessment rate in effect on such day that is payable by a member of the Bank Insurance Fund classified as “well capitalized” and within supervisory subgroup “B” (or a comparable successor risk classification) within the meaning of 12 C.F.R. Part 327 (or any successor provision) to the Federal Deposit Insurance Corporation for insurance by such Corporation of time deposits made in dollars at the offices of such member in the United States of America; provided that if, as a result of any change in any law, rule or regulation, it is no longer possible to determine the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual rate as shall be reasonably determined by the Administrative Agent to be representative of the cost of such insurance to the Lenders.

 

Asset Disposition” means any sale, transfer or other disposition of any asset of the Borrower or any Subsidiary in a single transaction or in a series of related transactions (other than (a) the sale of inventory or products (including software) in the ordinary course or the sale of obsolete or worn out property in the ordinary course, and (b) the sale of Permitted Investments in the ordinary course of business.

 

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent.

 

Base CD Rate” means the sum of (a) the Three Month Secondary CD Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.

 

Board” means the Board of Governors of the Federal Reserve System of the United States of America.

 

Borrower” means Citrix Systems International GMBH, a company organized under the laws of Switzerland.

 

Borrowing” means Loans of the same Type made, converted or continued on the same date and, in the case of Eurodollar Loans, as to which a single Interest Period is in effect.

 

Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that, when used in connection with a Eurodollar Loan, the term “Business Day” shall

 

2


also exclude any day on which banks are not open for dealings in dollar deposits in the London interbank market.

 

Capital Lease Obligations” of any Person means the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.

 

Change in Control” means the Borrower shall cease to be a Wholly-Owned Subsidiary of the Parent.

 

Change in Law” means (a) the adoption of any law, rule or regulation after the date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or application thereof by any Governmental Authority after the date of this Agreement or (c) compliance by any Lender (or, for purposes of Section 2.10(b), by any lending office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement.

 

Charges” has the meaning set forth in Section 9.13.

 

Code” means the Internal Revenue Code of 1986, as amended from time to time.

 

Collateral” means all property with respect to which any security interests have been granted (or purported to be granted) pursuant to any Security Document, including, without limitation, all Pledge Agreement Collateral.

 

Collateral Agent” means the Administrative Agent acting as collateral agent for the Secured Creditors pursuant to the Security Documents.

 

Commitment” means, with respect to each Lender, the commitment of such Lender to make a single term loan hereunder pursuant to Section 2.01, expressed as an amount representing the principal amount of such Lender’s Loan. The initial amount of each Lender’s Commitment is set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to which such Lender shall have assumed its Commitment, as applicable. The aggregate amount of the Lenders’ Commitments is $100,000,000.

 

Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.

 

Controlled Subsidiary” of a Person means (a) any subsidiary at least 80% of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (b) any partnership,

 

3


limited liability company, association, joint venture or similar business organization at least 80% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled.

 

Credit Documents” means this Agreement and, after the execution and delivery thereof pursuant to the terms of this Agreement, each promissory note, if any, delivered pursuant to Section 2.05(e), the Subsidiary Guaranty, the Parent Guaranty and each Security Document.

 

Credit Party” means the Borrower, the Parent and each Subsidiary Guarantor.

 

Default” means any event or condition which constitutes an Event of Default or which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.

 

Disclosed Matters” means the actions, suits and proceedings and the environmental matters disclosed in Schedule 3.06.

 

dollars” or “$” refers to lawful money of the United States of America.

 

Domestic Credit Agreement” means that certain Credit Agreement dated as of even date herewith among the Parent, the Borrower, the lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent, as Collateral Agent and as UK Security Trustee, as the same may be amended, restated, modified or supplemented from time to time.

 

Domestic Default” means a “Default” under the Domestic Credit Agreement or, if the Domestic Credit Agreement has been terminated, an event or circumstances which would have resulted in a Default under the Domestic Credit Agreement as in effect immediately prior to termination.

 

Domestic Subsidiary” means, as to any Person, each subsidiary of such Person that is incorporated under the laws of the United States, any State thereof or the District of Columbia.

 

EBITDA” means, for any applicable computation period, the Borrower’s and Subsidiaries’ Net Income on a consolidated basis from continuing operations, plus, to the extent included in the determination of Net Income, (a) income and franchise taxes paid or accrued during such period, (b) Total Interest Expense for such period, (c) amortization and depreciation deducted in determining Net Income for such period, (d) non-cash charges, (e) write-offs for in-process research and development to the extent not included in clause (d) above, and (f) non-cash charges required by GAAP in connection with the Borrower’s issuance of options to purchase stock.

 

EBITDAR” means, for any applicable computation period, the Borrower’s and its Subsidiaries’ Net Income on a consolidated basis from continuing operations, plus, to the extent included in the determination of Net Income, (a) income and franchise taxes paid or accrued during such period, (b) Total Interest Expense for such period, (c) amortization and depreciation deducted in determining Net Income for such period, (d) non-cash charges, (e) write-offs for in-process research and development to the extent not included in clause (d) above, (f) non-cash

 

4


charges required by GAAP in connection with the Borrower’s issuance of options to purchase stock and (g) Rentals for such period.

 

Effective Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).

 

Environmental Laws” means any and all federal, state, local and foreign statutes, laws, judicial decisions, regulations, ordinances, rules, judgments, orders, decrees, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements and other governmental restrictions relating to (i) the protection of the environment, (ii) the effect of the environment on human health, (iii) emissions, discharges or releases of Hazardous Materials into surface water, ground water or land, or (iv) the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, hazardous substances or wastes or the clean-up or other remediation thereof.

 

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

Equity Interests” means shares of capital stock, partnership interests, membership interests in a limited liability company, beneficial interests in a trust or other equity ownership interests in a Person, and any warrants, options or other rights entitling the holder thereof to purchase or acquire any such equity interest.

 

ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time.

 

Eurodollar”, when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are bearing interest at a rate determined by reference to the Adjusted LIBO Rate.

 

Event of Default” has the meaning assigned to such term in Article VII.

 

Excluded Taxes” means, with respect to the Administrative Agent, any Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrower hereunder, (a) income or franchise taxes imposed on (or measured by) its net income by the United States of America, or by the jurisdiction under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable lending office is located, (b) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction in which the Borrower is organized or in which its principal office is located, (c) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrower under Section 2.14(b)), any withholding tax that is attributable to such Foreign Lender’s failure to comply with Section 2.12(e) and (d) any Swiss

 

5


withholding tax with respect to any Lender which is neither a “United States person” within the meaning of Section 7701(a)(30) of the Code nor a Qualifying Lender.

 

Federal Funds Effective Rate” means, for any day, the weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a Business Day, the average (rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for such day for such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing selected by it.

 

Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Parent.

 

First Tier Material Foreign Subsidiary” has the meaning set forth in Section 5.11.

 

Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which the Borrower is organized. For purposes of this definition, the United States of America, each State thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

 

Foreign Pension Plan” means any plan, fund (including, without limitation, any super-annuation fund) or other similar program established or maintained outside of the United States of America by a Credit Party or one or more of its Subsidiaries or its Affiliates primarily for the benefit of employees of a Credit Party or such Subsidiaries or its Affiliates residing outside the United States of America, which plan, fund, or similar program provides or results in, retirement income, a deferral of income in contemplation of retirement or payments to be made upon termination of employment, and which is not subject to ERISA or the Code.

 

Foreign Subsidiary” means, as to any Person, each subsidiary of such Person which is not a Domestic Subsidiary.

 

GAAP” means generally accepted accounting principles in the United States of America.

 

Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government.

 

Guarantee” of or by any Person (the “guarantor”) means any obligation, contingent or otherwise, of the guarantor guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of the guarantor, direct or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation or to purchase (or to advance or supply funds for the

 

6


purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring the owner of such Indebtedness or other obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or obligation; provided that the term Guarantee shall not include endorsements for collection or deposit in the ordinary course of business. The amount of any Guarantee made by any guarantor shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee is made and (b) the maximum amount for which such guarantor may be liable pursuant to the terms of the instrument embodying such Guarantee, unless (in the case of a primary obligation that is not Indebtedness) such primary obligation and the maximum amount for which such guarantor may be liable are not stated or determinable, in which case the amount of such Guarantee shall be such guarantor’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

 

Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Law.

 

Indebtedness” of any Person means, without duplication, (a) all obligations of such Person for borrowed money or with respect to deposits or advances of any kind (other than deposits or advances made by customers or subtenants of such Person in the ordinary course of business), (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person upon which interest charges are customarily paid, (d) all obligations of such Person under conditional sale or other title retention agreements relating to property acquired by such Person, (e) all obligations of such Person in respect of the deferred purchase price of property or services (excluding accrued salaries, vacation and other employee benefits and current accounts payable incurred in the ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such Person, whether or not the Indebtedness secured thereby has been assumed, (g) all Guarantees by such Person of Indebtedness of others, (h) all Capital Lease Obligations of such Person, (i) all obligations, contingent or otherwise, of such Person as an account party in respect of letters of credit and letters of guaranty, (j) all obligations, contingent or otherwise, of such Person in respect of bankers’ acceptances, and (k) all Off-Balance Sheet Liabilities; provided that the term “Indebtedness” shall not be construed to include (i) deferred taxes, (ii) contingent obligations under customary indemnification provisions contained in contracts or agreements or (iii) obligations in respect of customary purchase price adjustment provisions contained in contracts or agreements relating to the purchase or sale of assets. The amount of any Indebtedness of a Person that constitutes Indebtedness of such Person solely by reason of clause (f) above and has not been assumed by such Person shall be deemed to be the lesser of (i) the book value of the property owned or acquired by such Person that is or may be the subject of a Lien securing such Indebtedness, as determined by such Person in good faith at such time and (ii) the amount of Indebtedness that is or may be secured by such property. The Indebtedness of

 

7


any Person shall include the Indebtedness of any other entity (including any partnership in which such Person is a general partner) to the extent such Person is liable therefor as a result of such Person’s ownership interest in or other relationship with such entity, except to the extent the terms of such Indebtedness provide that such Person is not liable therefor.

 

Indemnified Taxes” means Taxes other than Excluded Taxes.

 

Information Memorandum” means the Confidential Information Memorandum dated July 5, 2005 relating to the Parent, the Borrower and the Transactions.

 

Interest Coverage Ratio” means as of the end of any fiscal quarter of the Borrower, the ratio of (a) EBITDAR to (b) the sum of Total Interest Expense plus Rentals, in each case for the period of four fiscal quarters then ended, computed on a consolidated basis for the Borrower and its Subsidiaries.

 

Interest Election Request” means a request by the Borrower to convert or continue a Borrowing in accordance with Section 2.04.

 

Interest Payment Date” means (a) with respect to any ABR Loan, the last day of each March, June, September and December and (b) with respect to any Eurodollar Loan, the last day of an Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a Eurodollar Borrowing with an Interest Period of more than three months’ duration, the last day of each successive three month period beginning the first day of such Interest Period.

 

Interest Period” means with respect to any Eurodollar Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, two, three or six months thereafter, as the Borrower may elect; provided that (a) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (b) any Interest Period pertaining to a Eurodollar Borrowing that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period. For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.

 

Lenders” means the Persons listed on Schedule 2.01 and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

 

Leverage Ratio” means at any time, the ratio of Total Debt at such time to EBITDA for the most recently completed four fiscal quarters of the Borrower, computed on a consolidated basis for the Borrower and its Subsidiaries.

 

LIBO Rate” means, with respect to any Eurodollar Borrowing for any Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service (or on any successor

 

8


or substitute page of such Service, or any successor to or substitute for such Service, providing rate quotations comparable to those currently provided on such page of such Service, as determined by the Administrative Agent from time to time for purposes of providing quotations of interest rates applicable to dollar deposits in the London interbank market) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, as the rate for dollar deposits with a maturity comparable to such Interest Period. In the event that such rate is not available at such time for any reason, then the “LIBO Rate” with respect to such Eurodollar Borrowing for such Interest Period shall be the rate at which dollar deposits of $5,000,000 and for a maturity comparable to such Interest Period are offered by the principal London office of the Administrative Agent in immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

 

Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities.

 

Loans” means the loans made by the Lenders to the Borrower pursuant to this Agreement.

 

Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations or financial condition of the Borrower and the Subsidiaries taken as a whole, (b) the ability of any of the Borrower, the Parent or the Subsidiary Guarantors to perform any of its obligations under the Credit Documents or (c) the enforcement rights available to the Lenders under the Credit Documents.

 

Material Indebtedness” means Indebtedness (other than the Loans), or obligations in respect of one or more Swap Agreements, of any one or more of the Borrower and its Subsidiaries in an aggregate principal amount exceeding $10,000,000 or arising under the Domestic Credit Agreement. For purposes of determining Material Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be the maximum aggregate amount (giving effect to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such Swap Agreement were terminated at such time.

 

Material Subsidiary” means a Domestic Subsidiary of the Parent or a Foreign Subsidiary held directly by the Parent or any Subsidiary Guarantor that is a Domestic Subsidiary which (a) as of the date hereof, has assets having a book value in excess of $2,000,000 or which generated in excess of $2,000,000 of net income over the four fiscal quarter period most recently ended prior to the date hereof, or (b) thereafter, has or acquires assets having a book value in excess of $5,000,000 or which generated in excess of $5,000,000 of net income over the four fiscal quarter period most recently ended prior to the time of computation.

 

Maturity Date” means February 8, 2007.

 

9


Maximum Rate” has the meaning set forth in Section 9.15.

 

Moody’s” means Moody’s Investors Service, Inc.

 

Net Income” means, for any computation period, net income of the Borrower on a consolidated basis with its Subsidiaries (other than, to the extent of such restriction, any Subsidiary which is restricted from declaring or paying dividends or otherwise advancing funds to its parent whether by contract or otherwise), earned during such period (determined before the deduction of minority interests) as determined in accordance with GAAP.

 

Non-Subject Subsidiary” has the meaning set forth in Section 5.11(c).

 

Off-Balance Sheet Liability” of a Person means (a) any repurchase obligation or liability of such Person with respect to accounts or notes receivable sold by such Person, (b) any liability under any Sale and Leaseback Transaction other than Capital Lease Obligations, (c) any liability under any so-called “synthetic lease” arrangement or transaction entered into by such Person, or (d) any obligation arising with respect to any other transaction which is the functional equivalent of or takes the place of borrowing but which does not constitute a liability on the balance sheets of such Person.

 

Other Taxes” means any and all present or future stamp or documentary taxes or any other excise or property taxes, charges or similar levies arising from any payment made hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this Agreement.

 

Parent” means Citrix Systems, Inc., a Delaware corporation.

 

Parent Guaranty” means that certain guaranty dated as of the date hereof by the Parent in favor of the Secured Creditors, as the same may be amended, restated, modified or supplemented from time to time.

 

Participant” has the meaning set forth in Section 9.04.

 

Permitted Acquisition” means the acquisition by the Borrower or a Wholly-Owned Subsidiary thereof of an Acquired Entity or Business (including by way of merger of such Acquired Entity or Business with and into the Borrower (so long as the Borrower is the surviving corporation) or a Wholly-Owned Subsidiary thereof (so long as the Wholly-Owned Subsidiary is the surviving corporation); provided that, in each case, (a) the consideration paid or to be paid by the Borrower or such Wholly-Owned Subsidiary consists solely of cash, the issuance or incurrence of Indebtedness otherwise permitted by Section 6.01, the issuance of common stock of the Borrower to the extent no Default or Event of Default exists pursuant to clause (m) of Article VII or would result therefrom and the assumption/acquisition of any Indebtedness (calculated at face value) which is permitted to remain outstanding in accordance with the requirements of Section 6.01, (b) in the case of the acquisition of 80% or more of the capital stock of any Person (including by way of merger), such Person shall own no capital stock of any other Person (excluding de minimis amounts) unless either (i) such Person owns 100% of the capital stock of such other Person or (ii) (x) such Person and its Wholly-Owned Subsidiaries own at least 80% of the consolidated assets of such other Person and its Subsidiaries and (y) any

 

10


non-Wholly-Owned Subsidiary of such Person was a non-Wholly-Owned Subsidiary prior to the date of such Permitted Acquisition of such Person, (c) the Acquired Entity or Business acquired pursuant to the respective Permitted Acquisition is in a business permitted by Section 6.03(b), (d) in the case of a stock acquisition, such acquisition shall have been approved by the board of directors of the Acquired Entity or Business, and (e) all applicable requirements of Sections 6.03 of this Agreement and Section 6.04(g) of the Domestic Credit Agreement applicable to Permitted Acquisitions are satisfied.

 

Permitted Investments” means permitted investments under the “Corporate Investment Policy”, attached hereto as Exhibit B, as in effect on the date hereof and updated from time to time, subject to the approval of the Administrative Agent in its reasonable discretion, and the Swap Agreements not covered by such Corporate Investment Policy that are existing on the date hereof and previously disclosed to the Administrative Agent and such additional Swap Agreements not covered by such Corporate Investment Policy as may be approved by the Parent’s finance committee from time to time, subject to the approval of the Administrative Agent in its reasonable discretion.

 

Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

 

Pledge Agreements” means, collectively, the Pledge Agreements dated as of the date hereof made by certain of the Credit Parties in favor of the Collateral Agent and the UK Security Trustee for the benefit of the Secured Creditors, as the same may be amended, restated, modified or supplemented from time to time, and each other document or instrument pursuant to which Equity Interests are pledged to the Collateral Agent for the benefit of the Secured Creditors pursuant hereto.

 

Pledge Agreement Collateral” means all “Collateral” as defined in the Pledge Agreements.

 

Prime Rate” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at its principal office in New York City; each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective.

 

Qualifying Lender” means a financial institution which qualifies as a bank pursuant to the banking laws in force in its jurisdiction of organization or formation.

 

Register” has the meaning set forth in Section 9.04.

 

Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates.

 

Rentals” of a Person means, with respect to any period, the aggregate amount of rental expense deducted in computing Net Income of such Person.

 

11


Required Lenders” means, at any time, Lenders having outstanding Loans representing at least 51% of the sum of the total outstanding Loans at such time.

 

Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any Equity Interests in the Borrower or any Subsidiary, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such Equity Interests in the Borrower or any option, warrant or other right to acquire any such Equity Interests in the Borrower.

 

S&P” means Standard & Poor’s.

 

Sale and Leaseback Transaction” means any sale or other transfer of property by any Person with the intent to lease such property as lessee.

 

Secured Creditors” shall have the meaning assigned that term in the respective Security Documents.

 

Security Documents” means and includes the Pledge Agreements and each other document or instrument pursuant to which security is granted to the Collateral Agent for the benefit of the Secured Creditors pursuant hereto.

 

Statutory Reserve Rate” means a fraction (expressed as a decimal), the numerator of which is the number one and the denominator of which is the number one minus the aggregate of the maximum reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed as a decimal established by the Board to which the Administrative Agent is subject (a) with respect to the Base CD Rate, for new negotiable nonpersonal time deposits in dollars of over $100,000 with maturities approximately equal to three months and (b) with respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the Board). Such reserve percentages shall include those imposed pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency funding and to be subject to such reserve requirements without benefit of or credit for proration, exemptions or offsets that may be available from time to time to any Lender under such Regulation D or any comparable regulation. The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any change in any reserve percentage.

 

subsidiary” means, with respect to any Person (the “parent”) at any date, any corporation, limited liability company, partnership, association or other entity the accounts of which would be consolidated with those of the parent in the parent’s consolidated financial statements if such financial statements were prepared in accordance with GAAP as of such date, as well as any other corporation, limited liability company, partnership, association or other entity (a) of which securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are, as of such date, owned, controlled or held, or (b) that is, as of such date, otherwise Controlled, by the parent or one or more subsidiaries of the parent or by the parent and one or more subsidiaries of the parent.

 

12


Subsidiary” means any subsidiary of the Borrower.

 

Subsidiary Guarantor” means each subsidiary of the Parent which is a party to the Subsidiary Guaranty.

 

Subsidiary Guaranty” means the Subsidiary Guaranty dated as of the date hereof made by the subsidiaries of the Parent party thereto in favor of the Secured Creditors, as the same may be amended, restated, modified or supplemented from time to time. The Subsidiary Guarantors initially party to the Subsidiary Guaranty are so designated on Schedule 3.13 hereto.

 

Substantial Portion” means, with respect to the property of the Borrower and its Subsidiaries, property which (a) represents more than 10% of the consolidated assets of the Borrower and its Subsidiaries as would be shown in the consolidated financial statements of the Borrower and its Subsidiaries as at the beginning of the twelve-month period ending with the last day of the month preceding the month in which such determination is made, or (b) is responsible for more than 10% of the consolidated net sales or of the consolidated net income of the Borrower and its Subsidiaries as reflected in the financial statements referred to in clause (a) above.

 

Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock, employee benefit or similar plan providing for payments only on account of services provided by current or former directors, officers, employees or consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.

 

Taxes” means any and all present or future taxes, levies, imposts, duties, deductions, charges or withholdings imposed by any Governmental Authority.

 

Three Month Secondary CD Rate” means, for any day, the secondary market rate for three month certificates of deposit reported as being in effect on such day (or, if such day is not a Business Day, the next preceding Business Day) by the Board through the public information telephone line of the Federal Reserve Bank of New York (which rate will, under the current practices of the Board, be published in Federal Reserve Statistical Release H.15(519) during the week following such day) or, if such rate is not so reported on such day or such next preceding Business Day, the average of the secondary market quotations for three month certificates of deposit of major money center banks in New York City received at approximately 10:00 a.m., New York City time, on such day (or, if such day is not a Business Day, on the next preceding Business Day) by the Administrative Agent from three negotiable certificate of deposit dealers of recognized standing selected by it.

 

Total Debt” means all Indebtedness of the Borrower and its Subsidiaries, on a consolidated basis, calculated in accordance with GAAP plus, without duplication, (a) all Off-Balance Sheet Liabilities, (b) the face amount of all outstanding letters of credit in respect of

 

13


which the Borrower or any Subsidiary has any actual or contingent reimbursement obligation and (c) the principal amount of all Guarantees of the Borrower and its Subsidiaries.

 

Total Interest Expense” means, for any period, total cash interest expense deducted in the computation of Net Income for such period (including that attributable to Capital Lease Obligations and interest paid under synthetic leases) of the Borrower and its Subsidiaries for such period with respect to all outstanding Indebtedness of the Borrower and its Subsidiaries (including all commissions, discounts and other fees and charges owed with respect to letters of credit and bankers’ acceptance financing and net costs of rate hedging in respect of interest rates to the extent such net costs are allocable to such period in accordance with GAAP).

 

Transactions” means the execution, delivery and performance by the Borrower of this Agreement, the borrowing of Loans and the use of the proceeds thereof.

 

Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate Base Rate.

 

UCC” means the Uniform Commercial Code as from time to time in effect in the relevant jurisdiction.

 

UK Security Trustee” means the Administrative Agent acting as trustee pursuant to the Pledge Agreement governed by English law.

 

Wholly-Owned Subsidiary” of a Person means (a) any subsidiary all of the outstanding voting securities of which shall at the time be owned or controlled, directly or indirectly, by such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such Person and one or more Wholly-Owned Subsidiaries of such Person, or (b) any partnership, limited liability company, association, joint venture or similar business organization 100% of the ownership interests having ordinary voting power of which shall at the time be so owned or controlled (other than in the case of Foreign Subsidiaries, director’s qualifying shares and/or other nominal amounts of shares required to be held by Persons other than the Borrower and its Subsidiaries under applicable law).

 

SECTION 1.02. Classification of Loans and Borrowings. For purposes of this Agreement, Loans may be classified and referred to by Type (e.g., a “Eurodollar Loan”). Borrowings also may be classified and referred to by Type (e.g., a “Eurodollar Borrowing”).

 

SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to

 

14


include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

 

SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided that, if the Borrower notifies the Administrative Agent that the Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the date hereof in GAAP or in the application thereof on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

 

ARTICLE II

 

The Credits

 

SECTION 2.01. Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make a Loan to the Borrower on the Effective Date in the principal amount of such Lender’s Commitment. No amount of any Loan which is repaid or prepaid by the Borrower may be reborrowed hereunder.

 

SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be made as part of a Borrowing consisting of Loans made by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required.

 

(b) Notwithstanding any other provision of this Agreement, the Borrower shall not be entitled to request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date.

 

SECTION 2.03. Funding of Borrowings. Each Lender shall make the Loan to be made by it hereunder on the date hereof by wire transfer of immediately available funds to the account of the Administrative Agent designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by promptly crediting the amounts so received, in like funds, to an account of the Borrower maintained with the Administrative Agent in New York City and designated by the Borrower. Unless the Administrative Agent shall have received notice from a Lender prior to the proposed

 

15


date of any Borrowing that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Applicable Borrower to but excluding the date of payment to the Administrative Agent, at (a) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (b) in the case of the Borrower, the interest rate applicable to ABR Loans. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing.

 

SECTION 2.04. Interest Elections. (a) Unless the Borrower has provided notice and indemnity satisfactory to the Administrative Agent, the initial Borrowing shall initially be an ABR Borrowing. Thereafter, the Borrower may elect to convert such Borrowing to a different Type or to continue such Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest Periods therefor, all as provided in this Section. The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders holding the Loans comprising such Borrowing, and the Loans comprising each such portion shall be considered a separate Borrowing.

 

(b) To make an election pursuant to this Section, the Borrower shall notify the Administrative Agent of such election by telephone (i) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York City time, three Business Days before the date of the proposed Borrowing or (ii) in the case of an ABR Borrowing, not later than 11:00 a.m., New York City time, one Business Day before the date of the proposed Borrowing. Each such telephonic Interest Election Request shall be irrevocable and shall be confirmed promptly by hand delivery or telecopy to the Administrative Agent of a written Interest Election Request in a form approved by the Administrative Agent and signed by the Borrower.

 

(c) Each telephonic and written Interest Election Request shall specify the following information:

 

(i) the Borrowing to which such Interest Election Request applies and, if different options are being elected with respect to different portions thereof, the portions thereof to be allocated to each resulting Borrowing (in which case the information to be specified pursuant to clauses (iii) and (iv) below shall be specified for each resulting Borrowing);