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Exhibit 10.5
AMENDED AND RESTATED
[BANK OF AMERICA LOGO] BUSINESS LOAN AGREEMENT
BANK OF AMERICA, N.A.
This Agreement dated as of December 30, 2000, is between BANK OF AMERICA, N.A.
(the "Bank") and eLOYALTY CORPORATION (the "Borrower").
1. LINE OF CREDIT AMOUNT AND TERMS
1.1 LINE OF CREDIT AMOUNT.
(a) During the availability period described below, the Bank will
provide a line of credit to the Borrower. The amount of the line of credit (the
"Commitment") is Ten Million Dollars ($10,000,000).
(b) This is a revolving line of credit providing for cash advances and
letters of credit. During the availability period, the Borrower may repay
principal amounts and reborrow them.
(c) Each advance will be for at least One Hundred Thousand Dollars
($100,000), or for the amount of the remaining available line of credit, if
less.
(d) The Borrower agrees not to permit the outstanding principal balance
of advances under the line of credit plus the outstanding amounts of any letters
of credit, including amounts drawn on letters of credit and not yet reimbursed,
to exceed the Commitment.
1.2 AVAILABILITY PERIOD. The line of credit is available between the date of
this Agreement and December 30, 2001(the "Expiration Date") unless the Bank has
declared the Borrower to be in default and has elected to stop making any
additional credit available to the Borrower as permitted by Article 8.
1.3 INTEREST RATE.
(a) Unless the Borrower elects an optional interest rate as described
below, the interest rate is a per annum rate equal to the Bank's Prime Rate.
(b) The Prime Rate is the rate of interest publicly announced from time
to time by the Bank as its Prime Rate. The Prime Rate is set by the Bank based
on various factors, including the Bank's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans. The Bank may price loans to its customers at, above, or
below the Prime Rate. Any change in the Prime Rate will take effect at the
opening of business on the day specified in the public announcement of a change
in the Bank's Prime Rate.
1.4 OPTIONAL INTEREST RATE. Instead of the interest rate based on the Bank's
Prime Rate, the Borrower may elect the optional interest rate listed below
during interest periods agreed to by the Bank and the Borrower. The optional
interest rate shall be subject to the terms and conditions described later in
this Agreement. Any principal amount bearing interest at an optional rate under
this Agreement is referred to as a "Portion." The following optional interest
rate is available: the IBOR Rate plus 0.75 percentage points.
1.5 REPAYMENT TERMS.
(a) The Borrower will pay interest on January 31, 2001, and then
monthly thereafter until payment in full of any principal outstanding under this
line of credit.
(b) The Borrower will repay in full all principal and any unpaid
interest or other charges outstanding under this line of credit no later than
the Expiration Date.
1.6 LETTERS OF CREDIT. This line of credit may be used for financing:
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(i) standby letters of credit with a maximum maturity not to extend
more than one year beyond the Expiration Date.
(ii) The amount of the letters of credit outstanding at any one time
(including amounts drawn on the letters of credit and not yet reimbursed) may
not exceed Five Million Dollars ($5,000,000) (the "L/C Sublimit").
The Borrower agrees:
(a) any sum drawn under a letter of credit may, at the option of the
Bank, be added to the principal amount outstanding under this Agreement. The
amount will bear interest and be due as described elsewhere in this Agreement.
(b) if there is a default under this Agreement, to immediately prepay
and make the Bank whole for any outstanding letters of credit.
(c) the issuance of any letter of credit and any amendment to a letter
of credit is subject to the Bank's written approval and must be in form and
content satisfactory to the Bank and in favor of a beneficiary reasonably
acceptable to the Bank.
(d) to sign the Bank's form Application and Agreement for Standby
Letter of Credit.
(e) to pay any issuance and/or other fees that the Bank notifies the
Borrower in advance will be charged for issuing and processing letters of credit
for the Borrower.
(f) to allow the Bank to automatically charge the Borrower's checking
account for applicable fees, discounts, and other charges.
2. OPTIONAL INTEREST RATE
2.1 OPTIONAL RATE. The optional interest rate is a rate per year. Interest will
be paid on the last day of each interest period, and, if the interest period is
longer than 90 days, then on the last day of each quarter during the interest
period. At the end of any interest period, the interest rate will revert to the
Prime Rate, unless the Borrower has designated another optional interest rate
for the Portion. No Portion will be converted to a different interest rate
during the applicable interest period. Upon the occurrence of an event of
default under this Agreement, the Bank may terminate the availability of
optional interest rates for interest periods commencing after the default
occurs.
2.2 IBOR RATE. The election of IBOR Rates shall be subject to the following
terms and requirements:
(a) The interest period during which the IBOR Rate will be in effect
will be no shorter than 30 days and no longer than 180 days. The first day of
the interest period must be a Banking Day on which the Bank is also open for
business in California and dealing in offshore dollars. The last day of the
interest period will be determined by the Bank using the practices of the
offshore dollar inter-bank market.
(b) Each IBOR Rate Portion will be for an amount not less than the
following:
(i) for interest periods of 91 days or longer, Five Hundred
Thousand Dollars ($500,000).
(ii) for interest periods of between 31 and 90 days, One
Million Dollars ($1,000,000).
(c) The Borrower may not elect an IBOR Rate with respect to any
principal amount which is scheduled to be repaid before the last day of the
applicable interest period.
(d) The "IBOR Rate" means the interest rate determined by the following
formula, rounded upward to the nearest 1/100 of one percent. (All amounts in the
calculation will be determined by the Bank as of the first day of the interest
period.)
IBOR Rate = IBOR Base Rate
---------------------------------
(1.00 - Reserve Percentage)
Where,
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(i) "IBOR Base Rate" means the interest rate at which the
Bank's Grand Cayman Branch, Grand Cayman, British West Indies, would
offer U.S. dollar deposits for the applicable interest period to other
major banks in the offshore dollar inter-bank market.
(ii) "Reserve Percentage" means the total of the maximum
reserve percentages for determining the reserves to be maintained by
member banks of the Federal Reserve System for Eurocurrency
Liabilities, as defined in Federal Reserve Board Regulation D, rounded
upward to the nearest 1/100 of one percent. The percentage will be
expressed as a decimal, and will include, but not be limited to,
marginal, emergency, supplemental, special, and other reserve
percentages.
(e) Each prepayment of an IBOR Rate Portion, whether voluntary, by
reason of acceleration or otherwise, will be accompanied by the amount of
accrued interest on the amount prepaid, and a prepayment fee as described below.
A "prepayment" is a payment of an amount on a date earlier than the scheduled
payment date for such amount as required by this Agreement. The prepayment fee
shall be equal to the amount (if any) by which:
(i) the additional interest which would have been payable
during the interest period on the amount prepaid had it not been
prepaid, exceeds
(ii) the interest which would have been recoverable by the
Bank by placing the amount prepaid on deposit in the domestic
certificate of deposit market, the eurodollar deposit market, or other
appropriate money market selected by the Bank for a period starting on
the date on which it was prepaid and ending on the last day of the
interest period for such Portion (or the scheduled payment date for the
amount prepaid, if earlier).
(f) The Bank will have no obligation to accept an election for an IBOR
Rate Portion if any of the following described events has occurred and is
continuing:
(i) Dollar deposits in the principal amount, and for periods
equal to the interest period, of an IBOR Rate Portion are not available
in the offshore Dollar inter-bank market; or
(ii) the IBOR Rate does not accurately reflect the cost of an
IBOR Rate Portion.
3. FEES AND EXPENSES
3.1 FEES.
(a) LOAN FEE. The Borrower agrees to pay a loan fee in the amount of
Five Thousand Dollars ($5,000). This fee is due on or before February 15, 2001.
(b) UNUSED COMMITMENT FEE. The Borrower agrees to pay a fee on any
difference between the Commitment and the amount of credit it actually uses,
determined by the weighted average credit outstanding during the specified
period. The fee will be calculated at 0.125% per year. The calculation of credit
outstanding will include the undrawn amount of letters of credit. This fee is
due on March 31, 2001 and on the last day of each quarter thereafter until the
Expiration Date.
3.2 EXPENSES. The Borrower agrees to reimburse the Bank upon demand, whether or
not any loan is made under this Agreement, for:
(a) filing, recording and search fees, appraisal fees, title report
fees, documentation fees, and other similar fees, costs and expenses reasonably
incurred by the Bank.
(b) any expenses the Bank reasonably incurs in the preparation,
negotiation and execution of this Agreement and any agreement or instrument
required by this Agreement. Expenses include, but are not limited to, reasonable
attorneys' fees, including any allocated costs of the Bank's in-house counsel.
(c) any stamp or other taxes which may be payable with respect to the
execution or delivery of this Agreement and any agreement or instrument required
by this Agreement.
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4. DISBURSEMENTS, PAYMENTS AND COSTS
4.1 REQUESTS FOR CREDIT. Each request for an extension of credit will be made in
writing in a manner acceptable to the Bank, or by another means acceptable to
the Bank.
4.2 DISBURSEMENTS AND PAYMENTS. Each disbursement by the Bank will be made in
immediately available funds and will be evidenced by records kept by the Bank.
In addition, the Bank may, at its discretion, require the Borrower to sign one
or more promissory notes. Each payment made by the Borrower will be made without
set-off or counterclaim in immediately available funds not later than 2:00 p.m.,
Chicago time, on the date called for under this Agreement at the Bank's office
at 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000. Funds received on any day
after such time will be deemed to have been received on the next Banking Day.
Whenever any payment to be made under this Agreement is stated to be due on a
day which is not a Banking Day, such payment will be made on the next succeeding
Banking Day and such extension of time will be included in the computation of
any interest.
4.3 TELEPHONE AND FACSIMILE AUTHORIZATION.
(a) The Bank may honor telephone or telefax instructions for advances
or repayments or for the designation of optional interest rates and telefax
requests for the issuance of letters of credit given, or purported to be given,
by any one of the individuals authorized to sign loan agreements on behalf of
the Borrower, or any other individual designated by any one of such authorized
signers.
(b) Advances will be deposited in and repayments will be withdrawn from
the Borrower's account number 86667-12596, or such other of the Borrower's
accounts with the Bank as designated in writing by the Borrower.
(c) Upon the Bank's request, the Borrower will provide written
confirmation to the Bank of any telephone or facsimile instructions within 2
days. If there is a discrepancy and the Bank has already acted on the
instructions, the telephone or facsimile instructions will prevail over the
written confirmation.
(d) The Borrower indemnifies and excuses the Bank (including its
officers, employees, and agents) from all liability, loss, and costs in
connection with any act resulting from telephone or facsimile instructions the
Bank reasonably believes are made by any individual authorized by the Borrower
to give such instructions. This indemnity and excuse will survive this
Agreement.
4.4 DIRECT DEBIT.
(a) The Borrower agrees that interest and any fees will be deducted
automatically on the due date from the Borrower's checking account number
86667-12596, or such other of the Borrower's accounts with the Bank as
designated in writing by the Borrower.
(b) The Bank will debit the account on the dates the payments become
due. If a due date does not fall on a Banking Day, the Bank will debit the
account on the first Banking Day following the due date.
(c) The Borrower will maintain sufficient funds in the account on the
dates the Bank enters debits authorized by this Agreement. If there are
insufficient funds in the account on the date the Bank enters any debit
authorized by this Agreement, the debit will be reversed.
4.5 BANKING DAYS. Unless otherwise provided in this Agreement, a "Banking Day"
is a day other than a Saturday or a Sunday on which the Bank is open for
business in Chicago, Illinois. All payments and disbursements which would be due
on a day which is not a Banking Day will be due on the next Banking Day. All
payments received on a day which is not a Banking Day will be applied to the
credit on the next Banking Day.
4.6 INTEREST CALCULATION. Except as otherwise stated in this Agreement, all
interest and fees, if any, will be computed on the basis of a 360 day year and
the actual number of days elapsed. Installments of principal which are not paid
when due under this Agreement shall continue to bear interest until paid.
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4.7 DEFAULT RATE. Upon the occurrence (after the expiration of any applicable
notice or cure periods) and during the continuation of any default under this
Agreement, principal amounts outstanding under this Agreement will at the option
of the Bank bear interest at a rate which is 2 percentage point(s) higher than
the rate of interest otherwise provided under this Agreement. This will not
constitute a waiver of any default.
5. CONDITIONS
The Bank must receive the following items, in form and content acceptable to the
Bank, before it is required to extend any credit to the Borrower under this
Agreement:
5.1 AUTHORIZATIONS. Evidence that the execution, delivery and performance by the
Borrower (and any guarantor) of this Agreement and any instrument or agreement
required under this Agreement have been duly authorized.
5.2 GOVERNING DOCUMENTS. A copy of the Borrower's articles of incorporation.
5.3 INSURANCE. Evidence of insurance coverage, as required in the "Covenants"
section of this Agreement.
5.4 PAYMENT OF FEES. Payment of all accrued and unpaid expenses reasonably
incurred by the Bank as required by the paragraph entitled "Expenses".
5.5 GOOD STANDING. Certificates of good standing for the Borrower from its state
of formation and from any other state in which it is qualified to conduct its
business.
5.6 OTHER ITEMS. Any other items that the Bank reasonably requires.
6. REPRESENTATIONS AND WARRANTIES
When the Borrower signs this Agreement, and until the Bank is repaid in full,
the Borrower makes the following representations and warranties. Each request
for an extension of credit constitutes a renewed representation.
6.1 ORGANIZATION OF BORROWER. The Borrower is a corporation duly formed and
existing under the laws of the state where organized.
6.2 AUTHORIZATION. This Agreement, and any instrument or agreement required
hereunder, are within the Borrower's corporate powers, have been duly
authorized, and do not conflict with its certificate of incorporation or
by-laws, as amended.
6.3 ENFORCEABLE AGREEMENT. This Agreement is a legal, valid and binding
agreement of the Borrower, enforceable against the Borrower in accordance with
its terms, and any instrument or agreement required hereunder, when executed and
delivered, will be similarly legal, valid, binding and enforceable.
6.4 GOOD STANDING. The Borrower is duly qualified as a foreign corporation and
is in good standing under the laws of each jurisdiction where its ownership or
lease of property or the conduct of its business requires such qualification,
except for jurisdictions in which failure to so qualify or to be in good
standing would not have a material adverse effect on the Borrower's financial
condition or its ability to repay any amounts due under this Agreement.
6.5 NO CONFLICTS. This Agreement does not conflict with any law applicable to
the Borrower or conflict with any material agreement or obligation by which the
Borrower is bound.
6.6 FINANCIAL INFORMATION. Each of the historical financial statements supplied
to the Bank, including the Borrower's unaudited quarterly financial statements
dated as of September 30, 2000, fairly presents in all material respects the
consolidated financial position and the consolidated results of operations,
retained earnings and cash flows of the Borrower and its subsidiaries as of the
date and for the periods set forth therein (subject, in the case of unaudited
financial statements, to notes and other normal year-end audit adjustments), in
each case in conformity with U.S. generally accepted accounting principals
("GAAP") consistently applied during the periods involved, except as otherwise
indicated in the notes thereto, and are:
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(a) in compliance in all material respects with any government
regulations that apply.
Since the date of the financial statement specified above, there has been no
material adverse change in the Borrower's business condition (financial or
otherwise), operations, properties or prospects, or ability to repay the credit.
6.7 LAWSUITS. There is no lawsuit, claim, action or proceeding pending or, to
the knowledge of the executive officers of the Borrower, threatened against the
Borrower, which would be reasonably likely to result in a material adverse
effect on Borrower's financial condition or its ability to repay the loan,
except as disclosed in writing to the Bank.
6.8 PERMITS, FRANCHISES. The Borrower possesses all permits, franchises, and
licenses and all trademark rights, trade name rights, patent rights and
fictitious name rights reasonably necessary to continue to conduct its business
as heretofore conducted.
6.9 OTHER OBLIGATIONS. The Borrower is not in default on any obligation for
borrowed money, any purchase money obligation or in any material respect on any
other material lease, commitment, contract, instrument or obligation.
6.10 INCOME TAXES. The Borrower has filed all tax returns required to be filed
and has paid, or made adequate provisions for the payment of, all taxes due and
payable as shown thereon pursuant to such returns and pursuant to any
assessments made against it or any of its property. No tax liens have been filed
(other than any liens for taxes not yet due and payable or being contested in
good faith by appropriate proceedings) and no material claims are being asserted
with respect to any such taxes. The reserves on the books of the Borrower in
respect of taxes is adequate. The Borrower is not aware of any proposed
assessment or adjustment for additional taxes (or any basis for any such
assessment) which would be material to the Borrower.
6.11 NO EVENT OF DEFAULT. There is no event which is, or with notice or lapse of
time or both would be, a default under this Agreement, except for those events,
if any, that have been disclosed in writing to the Bank or waived in writing by
the Bank.
6.12 INSURANCE. The Borrower has obtained, and maintained in effect, the
insurance coverage required in the "Covenants" section of this Agreement.
6.13 ERISA PLANS.
(a) Each Plan (other than a multiemployer plan) is in compliance in all
material respects with the applicable provisions of ERISA, the Code and other
federal or state law. Each Plan, other than the Borrower's 401(k) plan being
updated, has received a favorable determination letter from the IRS and, to the
knowledge of the executive officers of the Borrower, nothing has occurred which
would cause the loss of such qualification. The Borrower has fulfilled its
obligations, if any, under the minimum funding standards of ERISA and the Code
with respect to each Plan, and has not incurred any liability with respect to
any Plan under Title IV of ERISA.
(b) There are no claims, lawsuits or actions (including by any
governmental authority), and there has been no prohibited transaction or
violation of the fiduciary responsibility rules, with respect to any Plan which
has resulted or could reasonably be expected to result in a material adverse
effect.
(c) With respect to any Plan subject to Title IV of ERISA:
(i) No reportable event has occurred under Section 4043(c) of
ERISA for which the PBGC requires 30 day notice.
(ii) No action by the Borrower or any ERISA Affiliate to
terminate or withdraw from any Plan has been taken and no notice of
intent to terminate a Plan has been filed under Section 4041 of ERISA.
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(iii) No termination proceeding has been commenced with
respect to a Plan under Section 4042 of ERISA, and no event has
occurred or condition exists which might constitute grounds for the
commencement of such a proceeding.
(d) The following terms have the meanings indicated for purposes of
this Agreement:
(i) "Code" means the Internal Revenue Code of 1986, as amended
from time to time.
(ii) "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended from time to time.
(iii) "ERISA Affiliate" means any trade or business (whether
or not incorporated) under common control with the Borrower within the
meaning of Section 414(b) or (c) of the Code.
(iv) "PBGC" means the Pension Benefit Guaranty Corporation.
(v) "Plan" means a pension, profit-sharing, or stock bonus
plan intended to qualify under Section 401(a) of the Code, maintained
or contributed to by the Borrower or any ERISA Affiliate, including any
multiemployer plan within the meaning of Section 4001(a)(3) of ERISA.
6.14 YEAR 2000 COMPLIANCE. The Borrower has conducted a comprehensive review and
assessment of the Borrower's computer applications and made inquiry of the
Borrower's key suppliers, vendors and customers with respect to the "year 2000
problem" (that is, the inability of computers, as well as embedded microchips in
non-computing devices, to be able to properly perform date-sensitive functions
after December 31, 1999) and, based on that review and inquiry, the Borrower
does not believe the year 2000 problem will result in a material adverse change
in the Borrower's business condition (financial or otherwise), operations,
properties or prospects, or ability to repay the credit.
7. COVENANTS
The Borrower agrees, so long as credit is available under this Agreement and
until the Bank is repaid in full:
7.1 USE OF PROCEEDS. To use the proceeds of the credit only for general
corporate purposes and issuing letters of credit (up to the L/C Sublimit).
7.2 FINANCIAL INFORMATION. To provide the following financial information and
statements in form and content acceptable to the Bank, and such additional
information as reasonably requested by the Bank from time to time:
(a) Within 90 days of the Borrower's fiscal year end, the Borrower's
annual financial statements. These financial statements must be audited by a
"big 5" public accounting firm or otherwise by a Certified Public Accountant
acceptable to the Bank. The statements shall be prepared on a consolidated
basis.
(b) Within 45 days of the period's end, the Borrower's quarterly
financial statements. These financial statements may be Borrower prepared and
unaudited. The statements shall be prepared on a consolidated basis.
(c) Within the period(s) provided in (a) and (b) above, a compliance
certificate of the Borrower signed by an authorized financial officer of the
Borrower setting forth (i) the information and computations (in sufficient
detail) to establish that the Borrower is in compliance with all financial
covenants at the end of the period covered by the financial statements then
being furnished and (ii) whether there existed as of the date of such financial
statements and whether there exists as of the date of the certificate, any
default under this Agreement and, if any such default exists, specifying the
nature thereof and the action the Borrower is taking and proposes to take with
respect thereto.
7.3 TANGIBLE NET WORTH. To maintain on a consolidated basis Tangible Net Worth
(as defined below) equal to at least Seventy Million Dollars ($70,000,000).
"Tangible Net Worth" means the gross book value of the Borrower's
assets (excluding goodwill, patents, trademarks, trade names, organization
expense, treasury stock, unamortized debt discount and
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expense, capitalized or deferred research and development costs, deferred
marketing expenses, deferred receivables, and other like intangibles, and monies
due from Affiliates, officers, directors, employees, or shareholders, of the
Borrower, except for monies due from employees in respect of short-term travel
or similar advances in the normal course of the Borrower's business) plus
liabilities subordinated to the Bank in a manner acceptable to the Bank (using
the Bank's standard form) less total liabilities, including but not limited to
accrued and deferred income taxes, and any reserves against assets.
"Affiliates" means any person or entity directly or indirectly
controlling, controlled by or under the common control of the Borrower. A person
or entity shall be deemed to control another person or entity if the controlling
person or entity is the beneficial owner of greater than fifty one percent (51%)
or more of any class of voting securities (or other voting interests) of the
controlled person or entity or possesses, directly or indirectly, the power to
direct or cause the direction of the management or policies of the controlled
person or entity, whether through ownership of capital stock, or any other
equity interest, by contract or otherwise.
7.4 OTHER DEBTS. Not to have outstanding or incur any direct or contingent
liabilities or lease obligations (other than those to the Bank), or become
liable for the liabilities of others without the Bank's written consent. This
does not prohibit:
(a) trade credit incurred to acquire goods, supplies, services
(including, without limitation, compensation owed to employees and
subcontractors for services rendered to Borrower) and merchandise incurred in
the ordinary course of the Borrower's business and on terms customary for
businesses comparable to those of the Borrower;
(b) lease payment obligations which the Borrower is permitted to incur
under this Agreement;
(c) intercompany indebtedness among entities constituting part of the
Borrower's consolidated group, provided that indebtedness owed by the Borrower
to any subsidiaries or other such entities cannot to exceed $1,000,000 in the
aggregate;
(d) deferred taxes;
(e) unfunded employee benefit plan obligations and liabilities to the
extent that they are permitted to remain unfunded under applicable law;
(f) endorsements of negotiable instruments received in the ordinary
course of business;
(g) warranty, indemnification or other liabilities or claims relating
to services performed or software or other materials provided by the Borrower
and arising out of the ordinary course of the Borrower's business; and
(h) other liabilities in addition to (a) through (g) above reflected or
provided for in the consolidated balance sheet of the Borrower as of September
30, 2000, and liabilities incurred since that date not to exceed in the
aggregate $1,000,000.
7.5 OTHER LIENS. Not to create, assume, or allow any security interest or lien
(including judicial liens) on property the Borrower now or later owns, except:
(a) Mortgages, deeds of trust and security agreements, if any, in favor
of the Bank.
(b) Liens for taxes or other governmental assessments, charges or
levies either not yet due or payable or being contested in good faith by
appropriate proceedings or for which nonpayment thereof is otherwise permitted
by this Agreement.
(c) Workers', mechanics', suppliers', carriers', warehousemen's, or
other similar liens arising in the ordinary course of business and securing
obligations not yet due and payable.
(d) Pledges or deposits: securing obligations under workmen's
compensation, unemployment insurance, social security or public liability laws
or similar legislation or other public or statutory obligations of
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the Borrower; securing bids, tenders, contracts (other than ones for the payment
of money) or leases (to which the Borrower is lessee) made in the ordinary
course of business; or securing or in lieu of surety, appeal or customs bonds in
proceedings to which the Borrower is a party, not to exceed in the aggregate
$1,000,000.
(e) Liens created by or resulting from any litigation or legal
proceedings which are currently being contested in good faith by appropriate
proceedings, not to exceed in the aggregate $500,000.
(f) Zoning restrictions, easements, licenses, restrictions on the use
of real property or irregularities in the title which do not materially impair
the use of such property in the operation of the Borrower's business.
(g) Other liens arising in connection with obligations or transactions
not prohibited by this Agreement and incurred by the Borrower in the ordinary
course of its business and that do not exceed in the aggregate $500,000.
7.6 LEASES. Not to permit the aggregate payments due in any fiscal year under
all leases (including capital and operating leases for real or personal
property) to exceed Fifteen Million Dollars ($15,000,000).
7.7 LOANS AND INVESTMENTS. Not to make any extensions of credit, or make any
investments in, or make any capital contributions or other transfers of assets
to, any individual or entity, except the following:
(a) extensions of credit in the nature of accounts receivable or notes
receivable arising from the sale, license or lease of goods or services in the
ordinary course of business.
(b) investments in any of the following:
(i) U.S. treasury bills and other obligations of the federal
government;
(ii) stock of its subsidiaries;
(iii) intercompany indebtedness permitted by Section 7.4 (c).
(c) investments in venture capital funds, with others, created to
invest in companies in loyalty technology.
(d) intercompany transfers solely between or among Borrower and any
other entities constituting part of Borrower's consolidated group associated
with the restructuring of the Borrower's European subsidiaries to be completed
so long as no transfers of such assets are distributed to third parties. (e)
intercompany transfers incurred in the normal course of business.
(f) other transfers of assets not prohibited by Section 7.17.
7.8 NOTICES TO BANK. To notify the Bank in writing, promptly after learning
thereof, of:
(a) any lawsuit over Ten Million Dollars ($10,000,000) against the
Borrower.
(b) any substantial dispute between the Borrower and any government
authority.
(c) any event of default under this Agreement, or any event which, with
notice or lapse of time or both, would constitute such an event of default.
(d) any material adverse change in the Borrower's business condition
(financial or otherwise), operations, properties or prospects, or ability to
repay the credit.
(e) any change in the Borrower's name, legal structure, place of
business, or chief executive office if the Borrower has more than one place of
business.
(f) (i) other than liabilities permitted under Sections 7.4(a)-(g) &
7.4(i), and (ii) other than unasserted contingent liabilities permitted under
Section 7.4(h), any contingent liabilities of the Borrower, which contingent
liabilities are known to or reasonably foreseeable by the Borrower's executive
officers, in either case where
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such liabilities are reasonably estimable and in excess of Five Million Dollars
($5,000,000) in the aggregate, provided further that asserted claims or damages
relating to contingent liabilities permitted under Section 7.4(h) shall be
included only to the extent they exceed $5,000,000 in the aggregate.
(g) any filing by Borrower with the Securities and Exchange Commission
of a Form 8-K.
7.9 BOOKS AND RECORDS. To maintain adequate books and records.
7.10 AUDITS. To allow the Bank and its agents to inspect the Borrower's
properties and examine, audit and make copies of books and records at any
reasonable time. If any of the Borrower's properties, books or records are in
the possession of a third party, the Borrower authorizes that third party to
permit the Bank or its agents to have access to perform inspections or audits
and to respond to the Bank's requests for information concerning such
properties, books and records.
7.11 COMPLIANCE WITH LAWS. To comply in all material respects with the laws
(including any fictitious name statute), regulations, and orders of any
government body with authority over the Borrower's business.
7.12 PRESERVATION OF RIGHTS. To maintain and preserve all rights, privileges,
and franchises the Borrower now has.
7.13 MAINTENANCE OF PROPERTIES. To make any repairs, renewals, or replacements
reasonably required to keep the Borrower's properties in use in its business in
good working condition, normal wear and tear excepted.
7.14 PERFECTION OF LIENS. To help the Bank perfect and protect its security
interests and liens, if any, in any assets of the Borrower and reimburse it for
related costs it reasonably incurs to protect any such security interests and
liens.
7.15 COOPERATION. To take any action reasonably requested by the Bank to carry
out the intent of this Agreement.
7.16 INSURANCE.
(a) GENERAL BUSINESS INSURANCE. To maintain insurance as is usual for
the business it is in.
(b) EVIDENCE OF INSURANCE. Upon the request of the Bank, to deliver to
the Bank a copy of each insurance policy, or, if permitted by the Bank, a
certificate of insurance listing all insurance in force.
7.17 ADDITIONAL NEGATIVE COVENANTS. Not to, without the Bank's written consent:
(a) engage in any business activities substantially different from the
Borrower's present business.
(b) liquidate or dissolve the Borrower's business.
(c) enter into any consolidation, merger, pool, joint venture,
syndicate, or other combination, or become a partner in a partnership, a member
of a joint venture, or a member of a limited liability company, except for any
such arrangements or affiliations the Borrower may enter into to invest in
companies in loyalty technology as permitted under Section 7.7 (c) hereunder.
(d) sell, assign, lease, transfer or otherwise dispose of any assets
for less than fair market value, or enter into any agreement to do so, except
for sales or licenses of inventory in the ordinary course of business and sales
or other dispositions of obsolete or surplus assets.
(e) enter into any sale and leaseback agreement covering any of its
fixed or capital assets.
(f) acquire or purchase a business or its assets.
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(g) voluntarily suspend its business for more than 7 days in any 30 day
period.
7.18 BANK AS PRINCIPAL DEPOSITORY. To maintain the Bank as its principal
depository bank, including for the maintenance of business, cash management,
operating and administrative deposit accounts, provided, however, that neither
the foregoing nor any other terms of this Agreement shall prevent the Borrower
from maintaining accounts with other banks or financial institutions as long as
the Bank remains its principal depository bank and the applicable terms of
Section 7.20 hereof are satisfied.
7.19 ERISA PLANS. With respect to a Plan subject to Title IV of ERISA, to give
prompt written notice to the Bank of:
(a) The occurrence of any reportable event under Section 4043(c) of
ERISA for which the PBGC requires 30 day notice.
(b) Any action by the Borrower or any ERISA Affiliate to terminate or
withdraw from a Plan or the filing of any notice of intent to terminate under
Section 4041 of ERISA.
(c) The commencement of any proceeding with respect to a Plan under
Section 4042 of ERISA.
7.20 UNENCUMBERED LIQUID ASSETS. Borrower shall hold Unencumbered Liquid Assets
having an aggregate market value of not less than (a) 150 percent of Borrower's
total committed facility, (b) 125 percent of Borrower's total committed facility
if all Unencumbered Liquid Assets required for purposes of this covenant are
maintained with the Bank, or (c) 100 percent of Borrower's total committed
facility if all Unencumbered Liquid Assets required for purposes of this
covenant are maintained with the Bank and consist of cash, money market accounts
or Bank of America Short Term Asset Management accounts. For the purposes of
this Agreement, "Unencumbered Liquid Assets" shall mean the following assets
owned by Borrower (excluding assets of any retirement plan established pursuant
to the provisions of Sections 401(a) and 501(a) of the Internal Revenue Code,
any individual retirement account or annuity, simplified employee pension plan
or SIMPLE plan established pursuant to the provisions of Section 408 the
Internal Revenue Code, or any other retirement plan or arrangement established
pursuant to any other federal or state statute) which (i) are not the subject of
any lien, mortgage, encumbrance, security interest, pledge, conditional sale,
set-off right, title retention arrangement, or any other arrangement with any
creditor (other than any set-off or similar rights afforded to the Bank or any
other financial institution with whom such assets are maintained so long as
Borrower has no funded indebtedness with such financial institution) to have its
claim satisfied out of the asset (or proceeds thereof) prior to the general
creditors of Borrower, and (ii) may be converted to cash by sale or other means
within five (5) business days:
(a) Cash;
(b) Demand deposits or interest-bearing time and eurodollar deposits,
certificates of deposit or similar banking arrangements held in the United
States where either (i) such deposits or other arrangements are held with banks
or other financial institutions which have capital and surplus of not less than
$100,000,000 or (ii) such deposits are fully FDIC-insured;
(c) Direct obligations of the United States of America in the form of
United States Treasury obligations or any governmental agency or instrumentality
whose obligations constitute full faith and credit obligations of the United
States of America and which are regularly traded on a public market or exchange;
(d) Commercial paper rated P-1 by Xxxxx'x Investors Services, Inc. or
A-1 by Standard & Poor's Corporation, a division of McGraw Hill, Inc.;
(e) Bonds and other fixed income instruments (including tax-exempt
bonds) from companies or public entities rated investment grade by one of the
rating agencies described in (d), and mutual funds that invest substantially all
of their assets in such bonds and other fixed income instruments, either owned
directly by Borrower or managed on Borrower's behalf by (i) any nationally
recognized investment advisor or (ii) any investment advisor who or which has
assets under management in excess of $250,000,000;
(f) Eligible Stocks (defined below), either owned directly by Borrower
or managed on Borrower's behalf by (i) any nationally recognized investment
advisor or (ii) any investment advisor who or which has assets under management
in excess of $250,000,000; and
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12
(g) Mutual funds or money market funds that invest substantially all of
their assets in instruments described above in (a), (b), (c), (d), (e) and/or
(f) of this Section and which are quoted in either the Wall Street Journal or
Xxxxxx'x."
"Eligible Stocks" shall include any common or preferred stock which is traded on
a U.S. national stock exchange or included in the National Market tier of NASDAQ
and which (x) is issued by a company with a market capitalization, as of the
close of the most recent trading day, of at least $500,000,000, (y) has, as of
the close of the most recent trading day, a per share price of at least $15, and
(z) is not subject to any restriction or limitation by applicable laws or
agreements governing the sale, transfer or other disposition thereof in the
public market.
8. DEFAULT
If any of the following events occurs, the Bank may do one or more of the
following: declare the Borrower in default, stop making any additional credit
available to the Borrower, and require the Borrower to repay its entire debt
immediately and, except as otherwise provided in this Article 8, without prior
notice. If an event of default occurs under the paragraph entitled "Voluntary
Bankruptcy, Etc." or "Involuntary Bankruptcy, Etc." below, with respect to the
Borrower, then the entire debt outstanding under this Agreement will
automatically be due immediately.
8.1 FAILURE TO PAY. The Borrower fails to make a payment under this Agreement
when due.
8.2 FALSE INFORMATION. Any representation or warranty in this Agreement or in
any written statement, report, financial statement or certificate made or
delivered to the Bank by the Borrower, or by any officer, employee or authorized
agent of the Borrower, or any oral statement made to the Bank by a senior
financial officer of Borrower, shall be untrue or incorrect in any material
respect, as of the date when made or reaffirmed.
8.3 VOLUNTARY BANKRUPTCY, ETC. The Borrower files a petition seeking relief
under any applicable bankruptcy laws, consents to the filing of any such
petition, to the institution of proceedings thereunder or to the appointment of
a custodian, receiver, liquidator, bankruptcy trustee or similar official of the
Borrower or any substantial part of its properties or make a general assignment
for the benefit of its creditors.
8.4 INVOLUNTARY BANKRUPTCY, ETC. A decree or order by a court having proper
jurisdiction (a) for involuntary relief in respect of the Borrower under any
applicable bankruptcy law, (b) appointing a custodian, receiver, liquidator,
bankruptcy trustee or similar official of the Borrower or any substantial part
of its properties or (c) ordering the winding up or liquidation of the affairs
or the Borrower shall be entered.
8.5 LAWSUITS. Any lawsuit or lawsuits filed on behalf of one or more trade
creditors against the Borrower which have reasonable likelihood to result in
damages in an aggregate amount of Ten Million ($10,000,000) or more in excess of
any insurance coverage which have reasonable likelihood to result in damages.
8.6 JUDGMENTS. Any final judgments or arbitration awards for the payment of
money are entered against the Borrower, or the Borrower enters into any
settlement agreements with respect to any litigation or arbitration, in an
aggregate amount of Ten Million Dollars ($10,000,000) or more in excess of any
insurance coverage, and the same are not vacated, stayed, bonded, paid or
discharged for a period of twenty (20) days after entry thereof; provided,
however, that the Bank will not be obligated to extend any additional credit to
the Borrower during such period.
8.7 GOVERNMENT ACTION. Any government authority takes action with respect to the
Borrower that the Bank reasonably believes materially adversely affects the
Borrower's financial condition or ability to repay any amounts due under this
Agreement, and the Bank has given the Borrower at least ten (10) days notice
thereof; provided, however, that the Bank will not be obligated to extend any
additional credit to the Borrower during such notice period.
8.8 MATERIAL ADVERSE CHANGE. A material adverse change occurs in the Borrower's
business condition (financial or otherwise), operations, properties or
prospects, or ability to repay the credit since the date of the
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financial statements referred to in Section 6.6 hereof and the Bank has given
the Borrower at least ten (10) days notice thereof; provided, however, that the
Bank will not be obligated to extend any additional credit to the Borrower
during such notice period.
8.9 CROSS-DEFAULT. Any default occurs, and continues beyond any applicable
contractual grace period, in connection with any loan or line of credit
involving indebtedness for borrowed money that the Borrower or any other entity
constituting part of the Borrower's consolidated group has obtained from anyone
else, or which the Borrower or any other entity constituting part of the
Borrower's consolidated group has guaranteed if the default under such
guaranteed indebtedness consists of failing to make a payment when due (and
continues beyond any applicable grace period therefor) or gives the other lender
the right to accelerate the obligation.
8.10 DEFAULT UNDER RELATED DOCUMENTS. Any guaranty, subordination agreement,
security agreement, mortgage, deed of trust, or other document required by this
Agreement is violated in any material respect or no longer in effect.
8.11 OTHER BANK AGREEMENTS. The Borrower fails in any material respect to meet
the conditions of, or fails to perform any material obligation under any other
agreement the Borrower has with the Bank or any affiliate of the Bank, or demand
is made by the Bank or any affiliate of the Bank and not satisfied by the
Borrower within twenty (20) days after such demand on any material obligation
owing to the Bank or such affiliate under any other agreement the Borrower has
with the Bank or any affiliate of the Bank; provided, however, that the Bank
will not be obligated to extend any additional credit to the Borrower during
such cure period.
8.12 ERISA PLANS. The occurrence of any one or more of the following events with
respect to a Plan subject to Title IV of ERISA, provided such event or events
could reasonably be expected, in the judgment of the Bank, to subject the
Borrower to any tax, penalty or liability (or any combination of the foregoing)
which, in the aggregate, would be reasonably likely to have a material adverse
effect on the financial condition of the Borrower:
(a) A reportable event shall occur under Section 4043(c) of ERISA with
respect to a Plan.
(b) Any Plan termination (or commencement of proceedings to terminate a
Plan) or the full or partial withdrawal from a Plan by the Borrower or any ERISA
Affiliate.
8.13 OTHER BREACH UNDER AGREEMENT. The Borrower fails in any material respect to
meet the conditions of, or fails to perform any obligation under, any term of
this Agreement not specifically referred to in this Article 8, and the same
shall remain unremedied for a period of twenty (20) days; provided, however,
that the Bank will not be obligated to extend any additional credit to the
Borrower during such cure period. This includes any failure in any material
respect by the Borrower to comply with any financial covenants set forth in this
Agreement, whether such failure is evidenced by financial statements delivered
to the Bank or is otherwise known to the Borrower or the Bank.
9. ENFORCING THIS AGREEMENT; MISCELLANEOUS
9.1 GAAP. Except as otherwise stated in this Agreement, all financial
information provided to the Bank and all financial covenants will be made under
GAAP, consistently applied.
9.2 ILLINOIS LAW. THIS AGREEMENT IS GOVERNED BY THE INTERNAL LAWS OF THE STATE
OF ILLINOIS.
9.3 SUCCESSORS AND ASSIGNS. This Agreement is binding on the Borrower's and the
Bank's successors and assignees. The Borrower agrees that it may not assign this
Agreement without the Bank's prior consent. The Bank may sell participations in
or assign this loan, and may exchange financial information about the Borrower
with actual or potential participants or assignees; provided that such actual or
potential participants or assignees agree to treat all financial information
exchanged as confidential.
9.4 SEVERABILITY; WAIVERS. If any part of this Agreement is not enforceable, the
rest of the Agreement may be enforced. The Bank retains all rights, even if it
makes a loan after default. If the Bank waives a default, it may enforce a later
default. Any consent or waiver under this Agreement must be in writing.
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9.5 ADMINISTRATION COSTS. The Borrower will pay the Bank for all reasonable
costs incurred by the Bank in connection with administering this Agreement.
9.6 ATTORNEYS' FEES. The Borrower shall reimburse the Bank for any reasonable
costs and attorneys' fees incurred by the Bank in connection with the
enforcement or preservation of any rights or remedies under this Agreement and
any other documents executed in connection with this Agreement, and in
connection with any amendment, waiver, "workout" or restructuring under this
Agreement. In the event of a lawsuit or arbitration proceeding, the prevailing
party is entitled to recover costs and reasonable attorneys' fees incurred in
connection with the lawsuit or arbitration proceeding, as determined by the
court or arbitrator. In the event that any case is commenced by or against the
Borrower under the Bankruptcy Code (Title 11, United States Code) or any similar
or successor statute, the Bank is entitled to recover costs and reasonable
attorneys' fees incurred by the Bank related to the preservation, protection, or
enforcement of any rights of the Bank in such a case. As used in this paragraph,
"attorneys' fees" includes the allocated costs of the Bank's in-house counsel.
9.7 ONE AGREEMENT. This Agreement and any related security or other agreements
required by this Agreement, collectively:
(a) represent the sum of the understandings and agreements between the
Bank and the Borrower concerning this credit; and
(b) replace any prior oral or written agreements between the Bank and
the Borrower concerning this credit; and
(c) are intended by the Bank and the Borrower as the final, complete
and exclusive statement of the terms agreed to by them.
In the event of any conflict between this Agreement and any other agreements
required by this Agreement, this Agreement will prevail.
9.8 INDEMNIFICATION. The Borrower will indemnify and hold the Bank harmless from
any loss, liability, damages, judgments, and costs of any kind relating to or
arising directly or indirectly out of (a) this Agreement or any document
required hereunder, (b) any credit extended or committed by the Bank to the
Borrower hereunder, and (c) any litigation or proceeding related to or arising
out of this Agreement, any such document, or any such credit; provided, however,
that the Borrower shall not be liable for such indemnification and hold harmless
to the extent that any such loss, liability, damages, judgments or costs result
from the Bank's gross negligence or willful misconduct; and provided further,
that nothing in this Section 9.8 shall obligate the Borrower to indemnify the
Bank or hold it harmless (i) against any taxes payable in respect of any income
earned by the Bank as a result of its having entered into this Agreement or any
related agreements, instruments or documents or extended credit hereunder or
(ii) in respect to any violations resulting from any such entry or credit
extension by the Bank of any applicable banking, credit, usury or similar laws.
This indemnity includes but is not limited to reasonable attorneys' fees
(including the reasonable allocated cost of in-house counsel). This indemnity
extends to the Bank, its parent, subsidiaries and all of their directors,
officers, employees, agents, successors, attorneys, and assigns. This indemnity
will survive repayment of the Borrower's obligations to the Bank. All sums due
to the Bank hereunder shall be obligations of the Borrower, due and payable
immediately without demand.
9.9 NOTICES. All notices required under this Agreement will be in writing and
will be transmitted by personal delivery, first class mail, overnight courier,
or facsimile to the addresses or facsimile numbers on the signature page of this
Agreement, or to such other addresses or facsimile numbers as the Bank and the
Borrower may specify from time to time in writing.
9.10 HEADINGS. Article and paragraph headings are for reference only and do not
affect the interpretation or meaning of any provisions of this Agreement.
9.11 COUNTERPARTS. This Agreement may be executed in as many counterparts as
necessary or convenient, and by the different parties on separate counterparts
each of which, when so executed, will be deemed an original but all such
counterparts will constitute but one and the same agreement.
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9.12 PRIOR AGREEMENT SUPERSEDED. This Agreement supersedes that certain Business
Loan Agreement entered into as of March 31, 2000 between the Bank and the
Borrower, and any credit outstanding thereunder shall be deemed to be
outstanding under this Agreement.
9.13 CONSENT TO JURISDICTION. To induce the Bank to accept this Agreement, the
Borrower irrevocably agrees that, subject to the Bank's sole and absolute
election, ALL ACTIONS OR PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO
THIS AGREEMENT WILL BE LITIGATED IN COURTS HAVING SITUS IN CHICAGO, ILLINOIS.
THE BORROWER HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY COURT
LOCATED WITHIN CHICAGO, ILLINOIS, WAIVES PERSONAL SERVICE OF PROCESS UPON THE
BORROWER, AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED
MAIL DIRECTED TO THE BORROWER AT THE ADDRESS STATED ON THE SIGNATURE PAGE HEREOF
AND SERVICE SO MADE WILL BE DEEMED TO BE COMPLETED UPON ACTUAL RECEIPT.
9.14 WAIVER OF JURY TRIAL. THE BORROWER AND THE BANK EACH WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (a)
UNDER THIS AGREEMENT OR ANY RELATED AGREEMENT OR UNDER ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION WITH THIS AGREEMENT OR (b) ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY
SUCH ACTION OR PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
[signature page follows]
This Agreement is executed as of the date stated at the top of the first page.
BANK OF AMERICA, N.A. eLOYALTY CORPORATION
By: By:
----------------------------------------- -----------------------------------------
Title: Title:
-------------------------------------- --------------------------------------
Address and facsimile number Address and facsimile number
where notices to the Bank are where notices to the Borrower
to be sent: are to be to be sent:
000 Xxxxx XxXxxxx Xxxxxx 000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000 Suite 250
Attention: Upper MW Strategies II Xxxx Xxxxxx, Xxxxxxxx 00000
Attention: Senior Vice President and CFO
FAX: (000) 000-0000 FAX: (000) 000-0000
Copy to:
Vice President and General Counsel at address listed
above
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