These excerpts taken from the PALM 10-Q filed Apr 5, 2005.
NOW, THEREFORE, in consideration of the foregoing Recitals and intending to be legally bound, the parties hereto agree as follows:
1.1 Section 5.2 (Collateral). Section 5.2 of the Loan Agreement is amended by adding the following to the end of the third sentence: , subject to warranties and returns made in the ordinary course of business and generally consistent with historical experience.
1.2 Section 5.4 (No Material Adverse Change in Financial Statements). Section 5.4 of the Loan Agreement is amended by adding the following to the end of the first sentence: as of the date of such statements.
1.3 Section 6.2 (Government Compliance). Section 6.2 of the Loan Agreement is amended by adding the following in the first sentence after in which the failure to so and before qualify would reasonably be expected to cause a material adverse effect .: maintain or.
1.4 Section 6.3 (Financial Statements, Reports, Certificate). Section 6.3 of the Loan Agreement is amended by substituting the words expressly threatened in writing for the word threatened in Section 6.3(a)(iv) and changing the reference in Section 6.3(a)(iv) to $5,000,000 to $10,000,000 and the reference in Section 6.3(b) to Ten Million Dollars ($10,000,000) to Fifteen Million Dollars ($15,000,000).
1.5 Section 7.1 (Dispositions). Section 7.1 of the Loan Agreement is amended by adding the following at the end of the sentence: or (c) Transfers consisting of subleases of real estate not necessary for the conduct of Borrowers business.
1.6 Section 13 (Definitions). Section 13 of the Loan Agreement is amended as follows:
(A) the definition of Maturity Date is deleted in its entirety and replaced with the following: Maturity Date is August 27, 2006.
(B) in the definition of Permitted Indebtedness, before the word and at the end of clause (h), the following clause (i) is inserted and existing clause (i) is relettered as clause (j), as follows:
(i) Performance bonds or other indemnities issued to customers against claims of infringement by any of Borrowers products;
(C) the reference in clause (g) of the definition of Permitted Investments to $10,000,000 is amended to read $20,000,000.
1.9 The Schedule is amended to be in the form attached to this Amendment.
(a) immediately upon giving effect to this Amendment (i) the representations and warranties contained in the Loan Documents are true, accurate and complete in all material respects as of the date hereof (except to the extent such representations and warranties relate to an earlier date, in which case they are true and correct as of such date), and (ii) no Event of Default has occurred and is continuing;
(b) Borrower has the corporate power and authority to execute and deliver this Amendment and to perform its obligations under the Loan Agreement, as amended by this Amendment;
(c) the certificate of incorporation, bylaws and other organizational documents of Borrower delivered to Bank on the Closing Date remain true, accurate and complete and have not been amended, supplemented or restated since June 15, 2004 and are and continue to be in full force and effect;
(d) the execution and delivery by Borrower of this Amendment and the performance by Borrower of its obligations under the Loan Agreement, as amended by this Amendment, have been duly authorized by all necessary corporate action on the part of Borrower; and
(e) this Amendment has been duly executed and delivered by the Borrower and is the binding obligation of Borrower, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, liquidation, moratorium or other similar laws of general application and equitable principles relating to or affecting creditors rights.
4.1 Amendment. Borrower and Bank shall have duly executed and delivered this Amendment to Bank.
4.2 Payment of Bank Expenses. Borrower shall have paid all Bank Expenses (including all reasonable attorneys fees and reasonable expenses) incurred through the Effective Date.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date first written above.