Exhibit 10.1
AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "AGREEMENT"), is entered
into as of May 15, 2001, by and among VASTERA, INC., a Delaware corporation (the
"BORROWER"), the lenders listed on the signature pages hereto, and each other
lender which, from time to time becomes a party hereto in accordance with
Subsection 10.7 (individually a "LENDER" and collectively the "LENDERS"), PNC
BANK, NATIONAL ASSOCIATION as the issuer of letters of credit (in such capacity
the "ISSUING BANK"), PNC BANK, NATIONAL ASSOCIATION as the administrative agent
for itself and the other Lenders (in such capacity the "ADMINISTRATIVE AGENT").
The Borrower and PNC Bank, National Association have previously
executed and delivered that certain Loan Agreement, dated as of March 5, 1999 as
amended by Amendments dated as of September 15, 1999, March 31, 2000 and June
20, 2000 respectively (the "ORIGINAL LOAN AGREEMENT"); and
The Borrower and PNC Bank, National Association have determined it to
be advisable to consolidate all of the amendments to the Original Loan Agreement
through the date hereof and to further amend the Original Loan Agreement in
accordance with the terms hereof to, among other things, provide the Borrower
with additional credit support. Accordingly, this Amended and Restated Loan
Agreement amends, restates and supersedes in their entirety all of the terms and
conditions set forth in the Original Loan Agreement and shall constitute the
legal equivalent of the Original Loan Agreement, as amended as aforesaid
(hereinafter, as amended, the "LOAN AGREEMENT").
Subject to the terms and conditions hereof and relying upon the
representations and warranties herein set forth in this Agreement, and intending
to be legally bound, the Borrower, the Administrative Agent, the Lenders and the
Issuing Bank agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following terms shall have the following
meanings:
"ACCOUNT" shall mean an "ACCOUNT" or a "GENERAL INTANGIBLE" as defined
in the Uniform Commercial Code as in effect in the jurisdiction whose Law
governs the perfection of the Administrative Agent's security interest therein,
whether now owned or hereafter acquired or arising.
"ACCOUNT DEBTOR" shall mean, with respect to any Account, each Person
who is obligated to make payments to the Borrower on such Account.
"ADMINISTRATIVE AGENT" means PNC Bank, National Association, in its
capacity as the Administrative Agent.
"AFFILIATE" means, with respect to any Person, (a) any other Person who
(either alone or with a group of Persons, and either directly or indirectly
through one or more intermediaries) is in control of, is controlled by or is
under common control with such Person, (b) any director,
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officer, partner, employee or agent of such Person, and (c) any member of the
immediate family of such Person or any natural Person described in the preceding
clauses (a) and (b). A Person or group of Persons shall be deemed to be in
control of another Person when such Person or group of Persons possesses,
directly or indirectly, the power to direct or cause the direction of the
management or policies of such other Person, whether through the ownership of
voting securities, by contract or otherwise.
"AGREEMENT" is defined in the Preamble to this Agreement.
"APPLICATION FOR LETTER OF CREDIT" means any application and agreement
for irrevocable letter of credit executed by an Authorized Officer, on behalf of
the Borrower, in connection with the issuance by the Issuing Bank of a Letter of
Credit hereunder.
"ASSET RESTORATION AMOUNT" is defined in Section 2.5(c) of this
Agreement.
"ASSIGNMENT AND ASSUMPTION AGREEMENT" means an Assignment and
Assumption Agreement in the form of EXHIBIT H hereto.
"AUTHORIZED OFFICER" is defined in Section 5.2 of this Agreement.
"BANKRUPTCY CODE" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C. -101, et seq.), as amended and in effect from time to time and the
regulations issued from time to time thereunder.
"BASE RATE" means the greater of (i) the Administrative Agent's Prime
Rate or (ii) the sum of the Federal Funds Effective Rate and fifty basis points
(0.50%).
"BORROWER" is defined in the Preamble to this Agreement.
"BORROWING BASE" at any time shall mean an amount equal to 80% of
Qualified Accounts as of the date of determination. The value of Qualified
Accounts at any time shall be determined by reference to the most recent
Borrowing Base Certificate delivered by the Borrower to the Administrative
Agent.
"BORROWING BASE CERTIFICATE" shall mean each Borrowing Base Certificate
to be delivered by the Borrower to the Administrative Agent pursuant to Section
2.2(a) hereof, in substantially the form attached as Exhibit J hereto, with
blanks appropriately completed, as amended, supplemented or otherwise modified
from time to time.
"BORROWING DATE" means with respect to any Loan, the date for the
making thereof, which shall be a Business Day.
"BUSINESS DAY" means any day other than a Saturday, Sunday, Federal
holiday or any other day on which commercial banks are authorized or required to
be closed for business in Pittsburgh, Pennsylvania.
"CAPITALIZED LEASE" means any lease of property by the Borrower or a
Subsidiary of the Borrower, as lessee, which would be capitalized in accordance
with GAAP.
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"CAPITALIZED LEASE OBLIGATIONS" means the amount of the obligations of
the Borrower and its Subsidiaries under Capitalized Leases which would be shown
as a liability of the Borrower or such Subsidiary in accordance with GAAP.
"CASH" means cash, Cash Equivalents and marketable securities as shown
on the balance sheet of the Borrower delivered to the Administrative Agent
pursuant to Sections 6.2 and 6.3 of this Agreement.
"CASH EQUIVALENTS" means (a) securities issued or fully guaranteed or
insured by the United States government or any agency thereof maturing not more
than six (6) months from the date of acquisition; (b) certificates of deposit,
time deposits, repurchase agreements, reverse repurchase agreements, or bankers'
acceptances, having in each case a tenor of not more than six (6) months, issued
by the Lenders, any affiliate of the Lenders or any U.S. commercial bank or any
branch or agency of any non-U.S. bank licensed to conduct business in the United
States having combined capital and surplus of not less than $250,000,000; (c)
commercial paper of any issuer rated at least a-1 by Standard & Poor's Rating
Group, a division of XxXxxx-Xxxx Companies, or P-1 by Xxxxx'x Investors Service
Inc. and in either case having a tenor of not more than three (3) months.
"CHANGE OF CONTROL" means within a period of twelve (12) consecutive
calendar months (i) (a) together with individuals who were directors of the
Borrower on the first day of such period (b) individuals whose election by the
Borrower's Board of Directors or whose nomination by shareholders of the
Borrower was approved by a majority of the Borrower's Board of Directors then
still in office who were either directors at the beginning of such period or
whose election or nomination for election was previously so approved,
collectively shall cease to constitute a majority of the board of directors of
the Borrower, or (ii) a Person or group of Persons acting in concert and who is
not (a) an Existing Shareholder or (b) an Affiliate of shareholders of the
Borrower on the first day of such period or (c) a Person who is eligible to
report their ownership of capital stock of the Borrower on Form 13G filed with
the Securities and Exchange Commission shall acquire thirty percent (30%) or
more of the issued and outstanding capital stock of the Borrower on a fully
diluted basis, taking into account all issued and outstanding stock options and
warrants to purchase capital stock.
"CLOSING DATE" means May 14, 2001 or such later date as is mutually
agreeable to the parties hereto.
"CLOSING FEE" means a fee of $52,500 due to the Lenders on the Closing
Date, which fee is to be allocated among the Lenders pro rata in accordance with
each Lender's Commitment Percentage.
"COMMITMENT" means as to each Lender, the obligation of such Lender to
make Loans available to the Borrower pursuant to Section 2.1 in an aggregate
principal amount not to exceed the amount set forth opposite such Lender's name
on the signature pages hereto.
"COMMITMENT FEE" means the fee payable to the Lenders set forth in
Section 2.9.
"COMMITMENT PERCENTAGE" means the proportion that a Lender's Commitment
bears to the Commitments of all of the Lenders, collectively.
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"COMPLIANCE CERTIFICATE" is defined in Section 6.3(a) of this
Agreement.
"CONSOLIDATED" means the consolidation in accordance with GAAP of the
items as to which such term applies.
"CURRENT ASSETS" means Cash plus accounts receivable and Cash
Equivalents (with maturity less than 90 days) of the Borrower determined in
accordance with GAAP and as shown on the balance sheet of the Borrower
referenced in Sections 6.2 and 6.3 of this Agreement.
"CURRENT LIABILITIES" means all current liabilities of the Borrower,
determined in accordance with GAAP and as shown on the balance sheet of the
Borrower referenced in Sections 6.2 and 6.3 of this Agreement.
"DEFAULT" means any condition, event, omission or act which with the
giving of notice, the passage of time or both would constitute an Event of
Default.
"DISBURSEMENT" means each advance of funds hereunder as a Loan.
"EBITDA" means earnings computed without regard to and before taking
charges for depreciation, interest, taxes and amortization, in each case, as
computed in accordance with GAAP and as shown in the Financial Statements of the
Borrower referenced in Sections 6.2 and 6.3 of this Agreement.
"ELIGIBLE EQUIPMENT" means new or used equipment, including computer
equipment, office equipment and new or used furnishings acquired by the Borrower
and leasehold improvements made by the Borrower to its leased office locations
and soft costs related thereto; provided, however, that (a) any such equipment
shall not be eligible unless the Administrative Agent's security interest
created pursuant to the Security Agreement attaches to such equipment either at
the time of the filing by the Administrative Agent of the financing statements
signed and delivered by the Borrower on the Closing Date or upon the subsequent
purchase by the Borrower of such equipment, and (b) the invoice amount or cost
of transferable software licenses, leasehold improvements and other soft costs
shall be eligible only to the extent that the aggregate amount thereof purchased
with proceeds of the Equipment Loans does not exceed ten percent (10%) of the
aggregate amount advanced under the Equipment Loans as of the date of
determination.
"ENVIRONMENTAL LAWS" is defined in Section 5.10 of this Agreement.
"EQUIPMENT LOAN" is defined in Section 2.1(b) of this Agreement.
"EQUIPMENT LOAN AMOUNT" is defined in Section 2.1(b) of this Agreement.
"EQUIPMENT LOAN NOTE" means a First Equipment Loan Note or a Second
Equipment Loan Note.
"EQUITY EVENT" means the closing and completion of a private placement
of common or preferred stock of the Borrower or equity securities convertible
into preferred or common stock of the Borrower, as the case may be, to
professional or institutional investors or other investors
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who may lawfully purchase such securities, including, but not limited to, then
existing owners of the Borrower's equity securities, resulting in any net
proceeds to the Borrower upon commercially reasonable terms prevailing in the
marketplace at the time and negotiated at arm's length.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EVENT OF DEFAULT" is defined in Section 8.1 of this Agreement.
"EXISTING SHAREHOLDER" means a holder of the Borrower's capital stock
as of the date hereof.
"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
transactions received by the Lenders from three Federal funds brokers of
recognized standing selected by the Lenders.
"FEES" means any fee payable by the Borrower to the Administrative
Agent, the Lenders, the Issuing Bank or PNC Capital Markets, Inc. ("PNC
CAPITAL") hereunder, under any of the other Loan Documents, or under that
certain letter agreement dated as of February 2, 2001 between PNC Capital and
the Borrower (the "LETTER AGREEMENT") including without limitation the Agent's
Fee (as defined in the Letter Agreement), the Arrangement Fee (as defined in the
Letter Agreement) and the Closing Fee.
"FINANCIAL STATEMENTS" means the Consolidated and, if required by the
Lenders in its sole discretion, consolidating balance sheets, income statements
and statements of cash flows of the Borrower for the year, month or quarter
together with year-to-date figures and comparative figures for the corresponding
periods of the prior year.
"FIRST EQUIPMENT LOAN ADVANCE REQUEST" is defined in Section 2.6(b) of
this Agreement.
"FIRST EQUIPMENT LOAN NOTE" is defined in Section 2.3(b) of this
Agreement.
"FIRST EQUIPMENT LOAN NOTE AMOUNT" is defined in Section 2.2(b) of this
Agreement.
"FIRST EQUIPMENT LOAN NOTE CONVERSION DATE" is defined in Section
2.4(b) of this Agreement.
"FISCAL QUARTER" Each three-month fiscal period of the Borrower
beginning respectively on each successive July 1, October 1, January 1 and April
1 during the term hereof and ending on the immediately succeeding September 30,
December 31, March 31 and June 30.
"FISCAL YEAR" means each annual fiscal period of the Borrower beginning
January 1 and ending on the immediately succeeding December 31.
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"GAAP" means generally accepted accounting principles set forth from
time to time in the opinions and pronouncements of the Accounting Principles
Board and the American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board (or agencies with
similar functions of comparable stature and authority within the accounting
profession), which are applicable in the circumstances as of the date of
determination.
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock of
capital ownership or otherwise, by any of the foregoing. any government or
political subdivision or any agency, authority, bureau, central bank,
commission, department or instrumentality of any government or political
subdivision, or any court, tribunal, grand jury or arbitrator, in each case
whether foreign or domestic.
"GOVERNMENTAL RULE" means any law, statute, rule, regulation, treaty,
ordinance, order, writ, injunction, decree, judgment, guideline, directive or
decision of any Governmental Authority, including without limitation
Environmental Laws, all whether in existence on the Closing Date or whether
issued, enacted or adopted after the Closing Date, and any change therein or in
the interpretation or application thereof following the Closing Date.
"GUARANTOR" means each Subsidiary of the Borrower in existence on the
Closing Date and each Person which becomes a Subsidiary of the Borrower on and
after the Closing Date.
"GUARANTOR SECURITY AGREEMENT" means a Guarantor Security Agreement in
the form of EXHIBIT K hereto, together with all extensions, renewals,
amendments, supplements, substitutions and replacements thereof and thereto.
"GUARANTY AGREEMENT" means a Guaranty Agreement in the form of EXHIBIT
J hereto, together with all extensions, renewals, amendments, supplements,
substitutions and replacements thereof and thereto.
"INITIAL LOAN BALANCE" is defined in Section 2.7 of this Agreement.
"INITIAL NOTE" means that certain Second Amended and Restated
Promissory Note dated March 31, 2000 made by the Borrower in favor of PNC Bank,
National Association.
"INTELLECTUAL PROPERTY" means and includes all of the Borrower's right,
title and interest in all patents, patent applications, copyrights, copyright
applications, trademarks, trademark applications, trade names, tradestyles,
service marks, goodwill, computer information, computer software, source codes
and object codes and trade secrets.
"ISSUING BANK" means PNC Bank National Association, in its capacity as
the issuer of Letters of Credit hereunder.
"LAW" means any law (including common law), constitution, statute,
treaty, regulation, rule, ordinance, order, injunction, writ, decree or award of
any Governmental Authority.
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"LENDERS" is defined in the Preamble to this Agreement.
"LETTER AGREEMENT" is defined in the definition of "FEE" above.
"LETTER OF CREDIT" is defined in the Letter of Credit Rider attached
hereto as EXHIBIT I.
"LETTER OF CREDIT EXPOSURE" is defined in the Letter of Credit Rider.
"LETTER OF CREDIT RIDER" means the Letter of Credit Rider in the form
attached hereto as EXHIBIT I.
"LIEN" means any mortgage, pledge, security interest, bailment,
encumbrance, claim, lien, right of set-off or charge of any kind, including any
agreement to give any of the foregoing, any conditional sale or other title
retention agreement and any lease in the nature thereof, and the filing of or
agreement to give any financing statement under the Uniform Commercial Code.
"LOAN" means, as to any Lender as of any date, the aggregate amount of
all Disbursements made by such Lender under such Lender's Commitment.
"LOAN DOCUMENTS" is defined in Section 3 of this Agreement.
"LOAN PARTY" means the Borrower and each Guarantor.
"MATERIAL" means material in relation to the business, operations,
affairs, financial condition, assets, properties, or prospects of such party.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, affairs, financial condition, assets, properties or
prospects of the Borrower or any of its Subsidiaries taken as a whole, or (b)
the ability of any Loan Party to perform any of its obligations under the Loan
Documents, or (c) the enforceability of this Agreement, the Notes or any of the
other Loan Documents.
"MAXIMUM AVAILABLE LETTER OF CREDIT AMOUNT" means the lesser of (a) (x)
the lesser of (i) the Borrowing Base and (ii) the Revolving Credit Loan Amount,
minus (y) the sum of the aggregate outstanding advances on the Revolving Credit
Loan, and (b) Two Million Five Hundred Thousand Dollars ($2,500,000), each as of
the date of determination.
"MAXIMUM AVAILABLE REVOLVING CREDIT LOAN AMOUNT" means (i) the lesser
of (A) the Borrowing Base or (B) the Revolving Credit Loan Amount minus (ii) the
aggregate amount of all Letters of Credit Exposure, each as of the date of
determination.
"NOTES" is defined in Section 2.3(c) of this Agreement.
"NEGATIVE OPERATING INCOME" is defined as loss from operations plus, to
the extent they have been deducted in determining the loss from operations, the
sum of non-cash expenses including amortization of goodwill, amortization of
intangibles and stock based compensation expenses, less the sum of non-cash
items of income, plus net interest income/expense, as calculated in accordance
with GAAP.
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"OBLIGATIONS" is defined in Section 3 of this Agreement.
"PERMITTED ACQUISITIONS" means the acquisition by the Borrower of the
capital stock or all or substantially all of the assets of another entity or
entities for which the cash component of the aggregate consideration (including
cash consideration paid and debt assumed) paid by Borrower, in all such
transactions after the Closing Date, does not exceed Fifteen Million Dollars
($15,000,000) (and specifically exclusive of any earn-out amounts).
"PERMITTED INDEBTEDNESS" means the indebtedness permitted under clauses
(a) through (h) of Section 7.1 hereof.
"PERMITTED LIENS" means Liens (a) for current taxes and assessments not
yet due and payable, (b), if any, reflected on or in the notes to the most
recent balance sheet of the Borrower delivered to the Lenders on or prior to the
Closing Date, (c), if any, specified on the SCHEDULE 5.6, (d) securing the
payment of taxes or charges of Governmental Authorities not yet delinquent or
being contested in good faith by appropriate proceeding, for which adequate
reserves are maintained in accordance with GAAP; (e) securing claims or demands
of materialmen, mechanics, carriers, warehousemen, landlords and other like
Persons, imposed without action of such parties, provided that the payment
thereof is not yet past due or for which adequate reserves are maintained in
accordance with GAAP; (f) incurred or deposits made in the ordinary course of
Borrower's business in connection with worker's compensation, unemployment
insurance, social security and other like laws; (g) in the nature of
non-exclusive licenses and sublicenses of the Intellectual Property granted to
Persons in the ordinary course of business; (h) arising from judgments, decrees
or attachments to the extent and only so long as such judgment, decree or
attachment has not caused or resulted in an Event of Default; (i) in favor of
customs and revenue authorities arising as a matter of law to secure payment of
customs duties in connection with the importation of goods; (j) which constitute
rights of set-off of a customary nature or bankers' liens with respect to
amounts on deposit, whether arising by operation of law or by contract, in
connection with arrangements entered into with banks in the ordinary course of
business; (k) in favor of lessors of tangible personal property arising under
operating leases, provided that such Liens are limited to the leased property,
any improvements made thereto and the proceeds thereof; (l) to secure (x)
purchase money security interests, as the that term is defined in the Uniform
Commercial Code, in property that secures the indebtedness that was incurred to
acquire the property or (y) Capitalized Lease Obligations; (m) securing interest
hedge agreements; (n) deposits or other temporary cash investments to secure
trade contracts and operating leases; (o) on real estate consisting of
easements, rights of way, zoning restrictions and restrictions on the use of
real property; or (p) in favor of or approved by the Administrative Agent or the
Required Lenders.
"PERSON" means an individual, sole proprietorship, corporation,
partnership (general or limited), trust, business trust, limited liability
company, unincorporated organization or association, joint venture, joint-stock
company, Governmental Authority, or any other entity of whatever nature.
"PNC BANK" means PNC Bank, National Association, a national
association.
"PNC CAPITAL" is defined in the definition of "FEE" above.
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"PRIME RATE" means the rate of interest per annum generally announced
by the Administrative Agent from time to time as its prime rate or, if the
Administrative Agent ceases to announce its prime rate or its prime rate
otherwise becomes unavailable for any reason, the prime rate published in the
Wall Street Journal. The Prime Rate is not tied to any external rate or index
and does not necessarily reflect the lowest rate of interest actually charged to
any particular class or category of customers of the Administrative Agent. If
and when the Prime Rate changes, the rate of interest on the Loans bearing
interest at the Prime Rate will change automatically without notice to the
Borrower, effective on the date of any such change.
"PROFITABILITY" means positive Consolidated net income after taxes,
measured in accordance with GAAP.
"PROHIBITED TRANSACTION" is defined in Section 5.9 of this Agreement.
"PURCHASING LENDER" is defined in Section 10.7(a) of this Agreement.
"QUALIFIED ACCOUNTS" shall mean Accounts which meet and at all times
continue to meet the following requirements or are otherwise satisfactory to the
Administrative Agent and the Required Lenders; provided, however, amounts owing
thereunder shall be subject to the specified limitations herein:
(a) It complies with all requirements of applicable Law,
including, without limitation, if applicable, usury Laws, the Federal Truth in
Lending Act, the Federal Consumer Credit Protection Act, the Fair Credit Billing
Act, and Regulation Z of the Board of Governors of the Federal Reserve System;
(b) It was not originated in any jurisdiction the Laws of
which, nor is it subject to any Law the effect of which, would make it or the
grant of a security interest in the Account to the Administrative Agent
unlawful, invalid or unenforceable;
(c) It was originated by the Borrower in connection with (i) a
sale of goods by the Borrower in the ordinary course of business, which sale has
been consummated and the goods sold therein delivered in accordance with the
terms of such sale, or (ii) the rendering of services by the Borrower in the
ordinary course of business, which services have been fully rendered, in each
case, such that the performance of the related contract has been completed by
the Borrower and by all parties other than the Account Debtor to the extent
necessary thereunder to enforce payment of the Account against the Account
Debtor;
(d) It arises from an enforceable contract and is evidenced by
a written invoice or other documentation in form and substance satisfactory to
the Administrative Agent;
(e) It does not arise out of a contract with, or order from,
an Account Debtor that, by its terms, forbids or makes void or unenforceable the
grant of the security interest by the Borrower to the Administrative Agent in
and to the Account arising with respect thereto;
(f) The title of the Borrower to the Account and, except as to
the Account Debtor, to any related goods is absolute and is not subject to any
Lien except Liens in favor of the Administrative Agent or any Lender;
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(g) It or the contract giving rise to it provides for payment
in United States Dollars by the Account Debtor;
(h) The amounts owing under it are not less than the amounts
represented by the Borrower to be owing under it in the applicable Borrowing
Base Certificate;
(i) Any portion of an Account for which income has not yet
been earned or which constitutes unearned discount, service charges or deferred
interest shall be ineligible and all such amounts shall be deducted in the
computing the amounts represented by the Borrower to be owing under it in the
applicable Borrowing Base Certificate;
(j) It is not subject to any defense, claim of reduction,
counterclaim, set-off, recoupment, or any dispute or claim for credits,
allowances or adjustments by the Account Debtor because of returned, inferior,
damaged goods or unsatisfactory service, or for any other reason;
(k) The goods the sale of which gave rise to the Account were
shipped or delivered or provided to the Account Debtor on an absolute sale basis
and not (i) on a xxxx and hold sale basis, (ii) a consignment sale basis, (iii)
a guaranteed sale basis, (iv) a sale or return basis, or (v) on the basis of any
other similar terms making the Account Debtor's payment obligations conditional;
(l) No default exists under the Account by any party thereto,
and all rights and remedies of the Borrower under the Account are freely
assignable by the Borrower;
(m) It has not been outstanding for more than ninety 90
calendar days past the invoice date;
(n) It shall be ineligible if 50% or more, in amount, of the
Accounts of the Account Debtor and its Affiliates are more than ninety 90
calendar days past due from the date of original invoice therefor;
(o) If, when added to the outstanding Accounts of the Account
Debtor and its Affiliates, such Accounts in the aggregate would exceed 10% (the
"AGGREGATE LIMIT") of all of the Borrower's Accounts, then only that portion of
such Accounts up to but not exceeding the Aggregate Limit shall be eligible;
(p) The Borrower has not received any note, trade acceptance,
draft, chattel paper or other instrument with respect to, or in payment of, the
Account, unless, if any such instrument has been received, the Borrower
immediately notifies the Administrative Agent and, at the Administrative Agent's
request, endorses or assigns and delivers such instrument to the Administrative
Agent;
(q) The Borrower has not received any notice of (i) the death
of the Account Debtor or a partner thereof; (ii) the filing by or against the
Account Debtor of any proceeding in bankruptcy, receivership, insolvency,
reorganization, liquidation, conservatorship or any similar proceeding, or (iii)
any assignment by the Account Debtor for the benefit of creditors. Upon
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receipt by the Borrower of any such notice, it will give the Administrative
Agent prompt written notice thereof;
(r) The Account Debtor is not an Affiliate of the Borrower;
(s) The Account Debtor is domiciled in the United States of
America;
(t) It shall be ineligible if the Account Debtor is a
Governmental Authority, unless the Borrower shall have taken all actions
deemed necessary by the Administrative Agent in order to perfect the
Administrative Agent's security interest therein, including but not limited
to any notices or filings required under the Federal Assignment of Claims Act
of 1940, as amended, or other applicable Laws; and
(u) The Administrative Agent has not reasonably deemed such
Account ineligible because of uncertainty about the creditworthiness of the
Account Debtor (including, without limitation, unsatisfactory past
experiences of the Borrower or the Administrative Agent with the Account
Debtor or unsatisfactory reputation of the Account Debtor) or because the
Administrative Agent otherwise makes a reasonable determination that the
collateral value of the Account to the Administrative Agent and the Lenders
is impaired or that the Administrative Agent's and the Lenders' ability to
realize such value is insecure.
In the case of any dispute about whether an Account is or has ceased to be a
Qualified Account, the decision of the Administrative Agent shall be final.
"QUICK RATIO" means Current Assets divided by Current Liabilities.
"REINVESTMENT ACCOUNT" is defined in Section 2.5(c) of this Agreement.
"REGISTER" is defined in Section 10.7(b) of this Agreement.
"REPORTABLE EVENT" is defined in Section 5.9 of this Agreement.
"REQUIRED LENDERS" means, as of a particular day (i) prior to the
termination of the Commitments, the Lenders whose Commitment Percentages
aggregate at least sixty-six and two-thirds (66-2/3%) of the aggregate
Commitment Percentages of all the Lenders and (ii) after the termination of the
Commitments, the Lenders whose Loans outstanding aggregate at least sixty-six
and two-thirds percent (66-2/3%) of the aggregate principal amount of the Loans
at the particular time outstanding; provided, however, that if the foregoing
would designate only one Required Lender then "Required Lenders" shall mean that
Lender and at least one other Lender.
"REVOLVING CREDIT LOAN" is defined in Section 2.1(a) of this Agreement.
"RESERVE ACCOUNT" is defined in Section 2.5(c) of this Agreement.
"REVOLVING CREDIT LOAN ADVANCE REQUEST" is defined in Section 2.6(a) of
this Agreement.
"REVOLVING CREDIT LOAN AMOUNT" is defined in Section 2.1(a) of this
Agreement.
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"REVOLVING CREDIT LOAN COMMITMENT" means as to each Lender, the
obligation of such Lender to make Revolving Credit Loans available to the
Borrower pursuant to Section 2.1(a) in an aggregate amount not to exceed such
Lender's Commitment Percentage of the Revolving Credit Loan Amount.
"REVOLVING CREDIT LOAN MATURITY DATE" is defined in Section 2.4(a) of
this Agreement.
"REVOLVING CREDIT LOAN NOTE" is defined in Section 2.3(a) of this
Agreement.
"SECOND EQUIPMENT LOAN ADVANCE REQUEST" is defined in Section 2.6(b) of
this Agreement.
"SECOND EQUIPMENT LOAN NOTE" is defined in Section 2.3(b) of this
Agreement.
"SECOND EQUIPMENT LOAN NOTE AMOUNT" is defined in Section 2.2(b) of
this Agreement.
"SECOND EQUIPMENT LOAN NOTE CONVERSION DATE" is defined in Section
2.4(b) of this Agreement.
"SECURITY DOCUMENTS" is defined in Section 3 of this Agreement.
"STATED AMOUNT" means the amount available to beneficiaries of Letters
of Credit for one or more drawings thereunder as such amount is increased,
reduced or reinstated from time to time in accordance with the provisions of any
Letter of Credit and this Agreement.
"SUBORDINATED INDEBTEDNESS" means any debt incurred by the Borrower
that is subordinated to the debt owing by the Borrower to the Lenders on terms
reasonably acceptable to the Lenders (and identified as being such by the
Borrower and the Lenders).
"SUBSIDIARY" means either (i) any corporation more than 50% of the
outstanding voting securities of which shall at the time be owned or controlled,
directly or indirectly, by the affected Person or one or more Subsidiaries of
such Person, or by the affected Person and one or more Subsidiaries, or (ii) any
other Person which is so owned or controlled.
"TANGIBLE NET WORTH" means preferred and common shareholders' equity of
the Borrower as shown in the Financial Statements of the Borrower delivered to
the Lenders pursuant to Sections 6.2 and 6.3 of this Agreement, minus good will
and other intangible assets of the Borrower determined in accordance with GAAP.
"TERM LOAN COMMITMENT" means as to each Lender, the obligation of such
Lender to make Equipment Loans available to the Borrower pursuant to Section
2.1(b) in an aggregate amount not to exceed such Lender's Commitment Percentage
of the Equipment Loan Amount.
"TOTAL LIABILITIES" means at any date as of which the amount thereof
shall be determined, all obligations that should, in accordance with GAAP be
classified as liabilities on the Consolidated balance sheet of Borrower,
including in any event all Indebtedness (less any Subordinated Indebtedness).
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"TRANSFEROR LENDER" is defined in Section 10.7(a) of this Agreement.
SECTION 2. LOAN FACILITIES; AMOUNTS; INTEREST RATES; ETC.
SECTION 2.1 FACILITIES AND AMOUNTS; LETTERS OF CREDIT.
(a) REVOLVING CREDIT LOAN. The Lenders will make from time to
time revolving credit loans (the "REVOLVING CREDIT LOAN") to the Borrower in the
maximum aggregate principal amount not to exceed $10,000,000.00 (the "REVOLVING
CREDIT LOAN AMOUNT") at any one time outstanding. The proceeds of the Revolving
Credit Loan will be advanced to and repaid by the Borrower in accordance with
the terms and conditions set forth hereafter, may be borrowed, repaid and
borrowed again at any time prior to the Revolving Credit Loan Maturity Date and
will be used for general corporate purposes of the Borrower, including without
limitation, working capital and Permitted Acquisitions.
(b) EQUIPMENT LOAN. The Lenders will from time to time make
equipment loans (the "EQUIPMENT LOAN") to the Borrower in the maximum aggregate
principal amount of $6,318,394.64 (the "EQUIPMENT LOAN AMOUNT"), the proceeds of
which will be advanced to and repaid by the Borrower in accordance with the
terms and conditions set forth hereafter and which may not be borrowed again
after being repaid by the Borrower. The Borrower will use the proceeds of the
Equipment Loan to finance its purchases of Eligible Equipment.
(c) LETTERS OF CREDIT. The Issuing Bank will issue one or more
Letters of Credit for the account of the Borrower or a Subsidiary of the
Borrower in accordance with the terms and conditions set forth in the Letter of
Credit Rider attached hereto as EXHIBIT I and incorporated herein by reference;
provided, however, at no time will the aggregate amount of Letters of Credit
Exposure outstanding exceed the Maximum Available Letter of Credit Amount.
SECTION 2.2 AVAILABILITY.
(a) REVOLVING CREDIT LOAN. The Lenders will advance the
proceeds of the Revolving Credit Loan to the Borrower from time to time, as
requested by the Borrower, prior to the Revolving Credit Loan Maturity Date;
provided, however, the aggregate outstanding advances on the Revolving Credit
Loan shall not at any time exceed the Maximum Available Revolving Credit Loan
Amount. The Borrower shall deliver a Borrowing Base Certificate to the
Administrative Agent not less than 5 calendar days prior to the date of each
requested advance under the Revolving Credit Loan.
(b) BORROWING BASE. The Borrower may borrow, repay and borrow
again from time to time under the Revolving Credit Loan in principal amounts
outstanding at any one time up to but not exceeding an amount equal to the
Maximum Available Credit Loan Amount. If at any time the aggregate principal
amount of indebtedness outstanding under the Revolving Credit Loan exceeds the
Maximum Available Credit Loan Amount, then the Borrower shall immediately prepay
principal to the Lenders in immediately available funds to reduce aggregate
principal amount outstanding thereon, to an amount equal to the Maximum
Available Credit Loan Amount, or if zero, then cash collateralize an amount of
the Letter of Credit Exposure sufficient to achieve compliance; provided,
however, the Borrower shall not be required to prepay principal in the amount of
any such excess resulting from a return of goods by an
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Account Debtor such that the Account represented thereby ceases to constitute a
Qualified Account, if the Account Debtor accepts replacement goods within 30
calendar days after the date of such return or if, during such 30-day period,
the Maximum Available Credit Loan Amount again exceeds the aggregate principal
amount then outstanding under the Revolving Credit Loan as evidenced by an
updated Borrowing Base Certificate delivered to the Administrative Agent.
(c) EQUIPMENT LOAN. The Lenders will advance the proceeds of
the Equipment Loan to the Borrower from time to time, as requested by the
Borrower, prior to the Second Equipment Loan Note Conversion Date. The Lenders
will make up to but not more than two advances of the proceeds of the Equipment
Loan that in the aggregate shall not, together with all other amounts advanced
under the Equipment Loan, exceed the Equipment Loan Amount, to finance up to 90%
of the invoice amount (less invoiced charges for installation, delivery and
taxes) of Eligible Equipment purchased by the Borrower prior to the close of
business on the Business Day immediately preceding the First Equipment Loan Note
Conversion Date, which advances shall each become principal under the First
Equipment Loan Note and shall collectively be referred to as the "FIRST
EQUIPMENT LOAN NOTE AMOUNT". The Lenders will make up to but not more than two
advances of the proceeds of the Equipment Loan that in the aggregate shall not,
together with all other amounts advanced under the Equipment Loan, exceed the
Equipment Loan Amount, to finance up to 90% of the invoice amount (less invoiced
charges for installation, delivery and taxes) of Eligible Equipment purchased by
the Borrower during the period commencing on the First Equipment Loan Note
Conversion Date and ending at the close of business on the Business Day
immediately preceding Second Equipment Loan Note Conversion Date, which advances
shall each become principal under the Second Equipment Loan Note and shall
collectively be referred to hereunder as the "SECOND EQUIPMENT LOAN NOTE
AMOUNT".
SECTION 2.3 NOTES AND LENDERS' RECORDS.
(a) REVOLVING CREDIT LOAN. The obligation of the Borrower to
repay the Revolving Credit Loan, together with interest accrued thereon, will be
evidenced by the several promissory notes, each substantially in the form of
EXHIBIT A hereto, made payable by the Borrower to the order of a Lender in the
maximum amount of such Lender's Revolving Credit Loan Commitment. (the
"REVOLVING CREDIT LOAN NOTES"). The principal amount actually due and owing to a
Lender at any time under its Revolving Credit Loan Note shall be the then
aggregate unpaid principal amount of all Revolving Credit Loans made by such
Lender as shown on the Loan Account established and maintained by such Lender in
accordance with Section 2.3(c).
(b) EQUIPMENT LOAN. The obligation of the Borrower to repay
the First Equipment Loan Note Amount, together with interest thereon, will be
evidenced by the several convertible-term promissory notes, each substantially
in the form of EXHIBIT B hereto, made payable by the Borrower to the order of a
Lender in the maximum amount of such Lender's Term Loan Commitment, which notes
shall have an aggregate face amount equal to the First Equipment Loan Note
Amount (the "FIRST EQUIPMENT LOAN NOTES"). The obligation of the Borrower to
repay the Second Equipment Loan Note Amount, together with interest thereon,
shall be evidenced by the several convertible-term promissory notes, each
substantially in the form of EXHIBIT B hereto, made payable by the Borrower to
the order of a Lender in the
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maximum amount of such Lender's Term Loan Commitment, which notes shall have an
aggregate face amount equal to the Second Equipment Loan Note Amount (the
"SECOND EQUIPMENT LOAN NOTES").
(c) LENDERS' RECORDS. All Loans evidenced by the Revolving
Credit Loan Notes, the First Equipment Loan Notes, the Second Equipment Loan
Notes, the Initial Notes (together, the "NOTES") and all payments of the
principal thereof and interest thereon and the respective dates thereof shall be
recorded in the books and records of the Lenders; provided, however, that the
failure of the Lenders to make such a notation or any error in such a notation
shall not affect the obligations of the Borrower under the Notes.
SECTION 2.4 METHOD OF PAYMENTS; NO SET-OFFS BY BORROWER. All payments
of principal, interest, Fees, costs and other amounts due hereunder and under
the other Loan Documents shall be made by the Borrower to the Administrative
Agent at the Administrative Agent's principal office at One PNC Plaza, 000 Xxxxx
Xxxxxx, Xxxxxxxxxx Xxxxxxxxxxxx 00000 not later than 2:00 p.m. (Eastern time) on
the due date. All such payments shall be made in immediately available funds
delivered by the Borrower to the Administrative Agent. All sums payable by
Borrower pursuant to this Agreement, the Notes or any of the other Loan
Documents shall be payable without notice or demand and shall be payable in
United States Dollars without set-off or reduction of any manner whatsoever.
SECTION 2.5 MATURITY AND CONVERSION DATES; REQUIRED PAYMENTS.
(a) REVOLVING CREDIT LOAN. The Revolving Credit Loan will
mature on May 13,(1) 2002 (the "REVOLVING CREDIT LOAN MATURITY DATE"), at which
time all principal and unpaid interest under the Revolving Credit Loan Notes
will be due and payable. Interest accrued on the principal amount of the
Revolving Credit Loans shall be due and payable on the dates set forth in the
Revolving Credit Loan Notes.
(b) EQUIPMENT LOAN.
(i) Prior to November 14(2), 2001 (the "FIRST
EQUIPMENT LOAN NOTE CONVERSION DATE"), interest accrued on the principal
amount of the First Equipment Loan Note shall be due and payable on the first
day of June, 2001 and on the first day of each month thereafter until the
First Equipment Loan Note Conversation Date, when all accrued interest shall
be due and payable. On the First Equipment Loan Note Conversation Date, the
principal amount then outstanding under the First Equipment Loan Note shall
convert to a single term loan that will be amortized in equal monthly
installments of principal over a period of 30 months, with payments due on
the first day of each month commencing December 1, 2001, and with payments of
accrued interest due on the first day of each quarter commencing on January 1,
2002 and continuing on the first day of each January, April, July and
October thereafter.
(ii) Prior to May 13(3), 2002 (the "SECOND EQUIPMENT
LOAN CONVERSION DATE"), interest accrued on the principal amount of the Second
Equipment Loan Note shall be
-----------------------
(1) Insert the date 364 days after the Closing Date.
(2) Insert the date 6 months after the Closing Date.
(3) Insert the date 364 days after the Closing Date
15
due and payable on the first day of October and on the first day of each month
thereafter until the Second Equipment Loan Conversion Date, when all accrued
interest shall be due and payable. On the Second Equipment Loan Note Conversion
Date, the principal amount then outstanding under the Second Equipment Loan Note
shall convert to a single term loan that will be amortized in equal monthly
installments of principal over a period of 30 months, with payments due on the
first day of each month commencing June 1, 2002, and with payments of accrued
interest due on the first day of each quarter commencing on July 1, 2002 and
continuing on the first day of each October, January, April and July thereafter.
(c) MANDATORY PREPAYMENT OF LOANS. The Borrower shall prepay
principal amounts outstanding under the Loans within five Business Days of the
Borrower's receipt thereof, in an amount equal to one hundred percent (100%) of
the cash proceeds (net of reasonable transaction costs (including commissions,
placement agent's discounts, reserves for liabilities, escrows and purchase
price adjustments and taxes) from (A) non-ordinary course sales of assets or
other dispositions of property owned by the Borrower, (B) the issuance of equity
or equity-linked products of the Borrower, (C) the issuance of debt other than
Permitted Indebtedness, and (D) insurance and condemnation recoveries. Mandatory
prepayments shall be applied to reduce the Equipment Loans, in the inverse order
of their maturities, and then to the Revolving Credit Loans.
Notwithstanding the foregoing, if in connection with an asset sale the
Borrower notifies the Administrative Agent in writing that it intends to use the
net cash proceeds of such asset sale to acquire productive assets to be used by
the Borrower in its business, the Borrower shall not be required to make a
prepayment under this Section 2.5(c) until the day that is 90 days after the day
on which such net cash proceeds were received and the amount of such prepayment
shall be the excess, if any, of such net cash proceeds over the amount thereof
so reinvested prior to such 90th day. Any net cash proceeds that are the subject
of a notice of the nature referred to in the preceding sentence shall be
deposited in an interest-bearing account (the "REINVESTMENT ACCOUNT") which
shall be maintained by the Borrower with the Administrative Agent, and which
shall be under the sole dominion and control of the Administrative Agent. During
a period of 90 days from the date of receipt of the applicable net cash
proceeds, the Administrative Agent shall release to the Borrower or its designee
amounts in such Reinvestment Account from time to time as the Borrower provides
evidence satisfactory to the Administrative Agent of the purchase of productive
assets of the kind then used or usable in the business of the Borrower, and on
the Business Day following the 90th day of such 90-day period, or upon the
earlier occurrence of an Event of Default, the Administrative Agent shall apply
all amounts remaining in the Reinvestment Account in the manner set forth above.
Notwithstanding the foregoing, if in connection with an
insurance or condemnation recovery the Borrower notifies the Administrative
Agent in writing that it intends to use any portion (the "ASSET RESTORATION
AMOUNT") of the net cash proceeds of such recovery to repair or replace
productive assets of a kind then used or usable by the Borrower in its business,
the Borrower shall not be required to make a prepayment under this Section
2.5(c) on the Asset Restoration Amount until the day that is 90 days after the
day on which such net cash proceeds were received and the amount of such
prepayment shall be the excess, if any, of such Asset Restoration Amount over
the amount thereof used by the Borrower for repairs or replacements prior to
such 90th day. The Asset Restoration Amount shall be deposited in an
16
interest-bearing account (the "RESERVE ACCOUNT") which shall be maintained by
the Borrower with the Administrative Agent, and which shall be under the sole
dominion and control of the Administrative Agent. During a period of 90 days
from the date of receipt of the applicable net cash proceeds, the Administrative
Agent shall release to the Borrower or its designee amounts in such Reserve
Account from time to time as the Borrower provides evidence satisfactory to the
Administrative Agent of the repair or replacement of productive assets of the
kind then used or usable in the business of the Borrower, and on the Business
Day following the 90th day of such 90-day period, or upon the earlier occurrence
of an Event of Default, the Administrative Agent shall apply all amounts
remaining in the Reserve Account in the manner set forth above.
(d) VOLUNTARY PREPAYMENT OF LOANS. The Borrower may
voluntarily prepay any Loans without penalty or premium.
(e) VOLUNTARY REDUCTIONS OF COMMITMENT.
(i) VOLUNTARY REDUCTIONS. Upon two Business Days'
written notice to the Administrative Agent, the Borrower may from time to time
voluntarily permanently reduce the Revolving Credit Loan Commitments. Each
voluntary reduction shall be in a minimum amount of $2,000,000 or, if greater
than $2,000,000, in integral multiples of $1,000,000.
(ii) EFFECT OF REDUCTIONS. Simultaneously with each
voluntary permanent reduction, the Borrower shall make a payment of the
outstanding Revolving Credit Loans equal to the excess, if any, of (A) the
aggregate principal amount of the outstanding Revolving Credit Loans and the
Stated Amount of any Letters of Credit over (B) the Revolving Credit Loan
Commitments, as so reduced. Notice of a reduction, once given, shall be
irrevocable. All such reductions shall be without penalty or premium.
SECTION 2.6 INTEREST RATES AND COMPUTATION.
(a) REVOLVING CREDIT LOAN. Principal amounts outstanding under
the Revolving Credit Loan shall bear interest at a rate per annum equal to the
Base Rate, but in no event greater than the maximum rate permitted by law.
(b) EQUIPMENT LOAN. Principal amounts outstanding under the
Equipment Loan shall bear interest at a rate per annum equal to the sum of the
Base Rate plus 50 basis points (0.50%), but in no event greater than the maximum
rate permitted by law.
(c) COMPUTING INTEREST. Interest will be calculated on the
basis of a year of 365 or 366-days, as the case may be, for the actual number of
days elapsed, and will be payable in arrears.
SECTION 2.7 LOAN REQUESTS.
(a) REVOLVING CREDIT LOAN. Subject to the limitations and
conditions set forth elsewhere in this Agreement, the Borrower may from time to
time prior to the Revolving Credit Loan Maturity Date request the Administrative
Agent to make a Disbursement under the Revolving Credit Loan by making a
telephonic request to the Administrative Agent, not later
17
than 11:00 a.m. Eastern Standard Time on the Business Day that the Disbursement
is to be made (each a "REVOLVING CREDIT LOAN ADVANCE REQUEST"), which shall be
immediately confirmed in writing in the form attached hereto as EXHIBIT C and
delivered by mail, facsimile or telex, it being understood that the
Administrative Agent may rely on the authority of any individual identifying
himself or herself as an Authorized Officer of the Borrower making a telephonic
request without the necessity of receipt of such written confirmation. Each
Revolving Loan Advance Request shall be irrevocable and shall specify (i) the
proposed Borrowing Date, and (ii) the aggregate amount of the requested loan
advance, which shall not exceed the Maximum Available Revolving Credit Loan
Amount.
(b) EQUIPMENT LOANS.
(i) FIRST EQUIPMENT LOAN NOTE. Subject to the
limitations and conditions set forth elsewhere in this Agreement, the Borrower
may from time to time prior to the First Equipment Loan Note Conversion Date
request the Administrative Agent to make a Disbursement under the First
Equipment Loan Note by delivering by mail, facsimile or telex a written request
in the form attached hereto as EXHIBIT D (each a "FIRST EQUIPMENT LOAN ADVANCE
REQUEST"), accompanied by supporting invoices, to the Administrative Agent not
less than one (1) Business Day prior to the date of the proposed borrowing.
(ii) SECOND EQUIPMENT LOAN NOTE. Subject to the
limitations and conditions set forth elsewhere in this Agreement, the Borrower
may from time to time prior to the Second Equipment Loan Note Conversion Date
request the Administrative Agent to make a Disbursement under the Second
Equipment Loan Note by delivering by mail, facsimile or telex a written request
in the form attached hereto as EXHIBIT E (each a "SECOND EQUIPMENT LOAN ADVANCE
REQUEST"), accompanied by supporting invoices, to the Administrative Agent not
less than one (1) Business Day prior to the date of the proposed borrowing.
(c) DISBURSEMENTS BY ADMINISTRATIVE AGENT.
(i) The Administrative Agent shall promptly notify
each Lender of each request for a Disbursement by the Borrower.
(ii) Not later than 2:00 p.m. Eastern Standard Time
on the Borrowing Date, each Lender shall make available to the Administrative
Agent in immediately available funds at the principal office of the
Administrative Agent such Lender's pro-rata share of the Disbursements, for the
account of the Borrower. No Lender's obligation to make a Disbursement shall be
affected by any other Lender's failure to make funds available for the same or
any other Disbursement. Nothing in this Subsection 2.6(c) shall be deemed to
relieve any Lender from its obligation to fulfill its obligations to the
Borrower under this Agreement or to prejudice any rights which the Borrower may
have against any Lender as a result of any default by such Lender under this
Agreement.
SECTION 2.8 OBLIGATIONS UNDER THE ORIGINAL LOAN AGREEMENT. The parties
hereto hereby acknowledge and agree that (a) as of the date hereof there are no
Obligations (as such terms are defined in the Original Loan Agreement)
outstanding under the Revolving Credit (as defined in the Original Loan
Agreement), (b) Obligations in the amount of $2,439,649 (the
18
"INITIAL LOAN BALANCE") are outstanding under the Equipment Loan (as defined in
the Original Loan Agreement) as of the date hereof, and such Initial Loan
Balance (i) shall be deemed to be Equipment Loans hereunder and shall be
included in determining availability under the Equipment Loan (but not the
number of advances), (ii) shall be evidenced by, and continue to bear interest
and amortize at the rates and in the manner set forth in the Initial Note as
amended and restated contemporaneously herewith, and (iii) shall otherwise be
subject to the terms and conditions hereof, including without limitation, the
provisions of Section 8 hereof, and of the other Loan Documents, and (c) all
Letters of Credit (as defined in the Original Loan Agreement) shall be deemed to
be Letters of Credit outstanding hereunder, and such Letters of Credit shall
hereafter be subject to the terms and conditions hereof and of the other Loan
Documents. PNC Bank has, effective on the date hereof, assigned to the other
Lenders their respective Commitment Percentage of PNC Bank's rights and
obligations under the Initial Note.
SECTION 2.9 COMMITMENT FEE. Beginning on June 30, 2001, and continuing
on the last day of each calendar quarter thereafter until the earlier of the
Revolving Credit Loan Maturity Date or the date on which the Revolving Credit
Loan Commitments shall be permanently terminated and on the Revolving Credit
Loan Maturity Date, the Borrower shall pay a Commitment Fee to the
Administrative Agent for the benefit of the Lenders, in arrears, at an annual
rate of thirty-seven and one-half basis points (0.375%) on the average daily
unused portion of the Revolving Credit Loan Commitment during the calendar
quarter or period then ended. The Commitment Fee shall be computed on the basis
of the year of 365 or 366 days, as the case may be, and paid on the actual
number of days elapsed. The Commitment Fee shall be calculated from the Closing
Date.
SECTION 3. SECURITY.
To secure repayment of the Loans, and to evidence certain restrictions
on the Borrower's and the Guarantors' ability to pledge certain of their assets,
the Borrower will on the Closing Date execute and deliver to the Administrative
Agent the Amended and Restated Security Agreement between the Borrower and the
Administrative Agent of even date herewith (including any Riders thereto), and
the Pledge Agreement between the Borrower and the Administrative Agent of even
date herewith (including any Riders thereto), and each Guarantor will on the
Closing Date execute and deliver to the Administrative Agent a Guarantor
Security Agreement (such Amended and Restated Security Agreement, Pledge
Agreement and Guarantor Security Agreements shall hereinafter be collectively
referred to as the "SECURITY DOCUMENTS"), which Security Documents shall secure
repayment of the Loans, the Notes, and all other loans, advances, debts,
liabilities, obligations, covenants and duties owing by the Borrower to the
Administrative Agent, the Lenders and the Issuing Bank which may arise out of or
in connection with this Agreement, the Notes or the other Loan Documents,
whether direct or indirect (including those acquired by assignment or
participation), absolute or contingent, joint or several, due or to become due,
now existing or hereafter arising, and any amendments, extensions, renewals or
increases and all reasonable costs and expenses of the Administrative Agent, the
Lenders and the Issuing Bank incurred in the documentation, negotiation,
modification, enforcement, collection or otherwise in connection with any of the
foregoing, including but not limited to reasonable attorneys' fees and expenses
(hereinafter referred to collectively as the "OBLIGATIONS"). Unless expressly
provided to the contrary in documentation for any other loan or loans, it is the
express intent of the Borrower, Administrative Agent, the
19
Lenders and the Issuing Bank that all Obligations, including those included in
the Loans, be cross-collateralized and cross-defaulted, such that collateral
securing any of the Obligations shall secure repayment of all Obligations and a
default under any Obligation shall be a default under all Obligations. This
Agreement (including the Addendum, the Riders and the Schedules hereto), the
Notes, the Security Documents, the Guaranty Agreements, and all other documents
executed and delivered in connection herewith or related hereto are collectively
referred to as the "LOAN DOCUMENTS."
SECTION 4. CONDITIONS TO MAKING ADVANCES.
SECTION 4.1 ALL LOANS AND LETTERS OF CREDIT. The obligation of the
Lenders to make each Loan and the Issuing Bank to issue each Letter of Credit is
subject to the satisfaction of each of the following conditions precedent:
(a) REQUEST FOR LOAN OR LETTER OF CREDIT. Receipt by (i) the
Administrative Agent, as to each Loan, of a request in accordance with the
requirements of Section 2.6 and (ii) the Issuing Bank, as to each Letter of
Credit, of a request in accordance with the Letter of Credit Rider.
(b) NO DEFAULT OR EVENT OF DEFAULT. The Borrower shall have
performed and complied with all agreements and conditions herein required to be
performed or complied with by it prior to any Loan or Letter of Credit being
made or issued and, at the time such Loan or Letter of Credit is made or as a
result of making such Loan or issuing such Letter of Credit, no Default or Event
of Default has occurred and is continuing or will be caused by the making of
such Loan or issuing such Letter of Credit.
(c) REPRESENTATIONS CORRECT. The representations and
warranties contained in Section 5 hereof and otherwise made in writing by or on
behalf of the Borrower in connection with the transactions contemplated by the
Loan Documents shall be (i) correct in all material respects when made and (ii)
correct in all material respects at the time of each Loan (except to the extent
of changes resulting from transactions contemplated by or permitted by this
Agreement or the other Loan Documents and changes occurring in the ordinary
course of business that singly or in the aggregate are not materially adverse
and to the extent that such representations and warranties relate expressly to
an earlier date).
(d) NO MATERIAL ADVERSE EFFECT. At the time of making such
Loan or issuing such Letter of Credit, no Material Adverse Effect has occurred
and is continuing.
Each request for a Loan or a Letter of Credit, whether made orally or
in writing, shall be deemed to be, as of the time made, a representation and
warranty by the Borrower as to the accuracy of the matters set forth in Sections
4.1(b), 4.1(c) and 4.1(d).
SECTION 4.2 INITIAL LOAN. The obligation of the Lenders to make the
first Loan is subject to the satisfaction of each of the following conditions
precedent, each of which must be satisfactory to the Administrative Agent, the
Lenders and the Issuing Bank, in addition to the applicable conditions precedent
set forth in Section 4.1:
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(a) LOAN AGREEMENT. Receipt by the Administrative Agent of
fully executed counterparts of this Agreement.
(b) SCHEDULES TO LOAN AGREEMENT; OTHER LOAN DOCUMENTS. Receipt
by the Administrative Agent of all schedules to this Agreement and the other
Loan Documents prepared by the Borrower or any Guarantor, in form and substance
satisfactory to the Administrative Agent.
(c) NOTES. Receipt by the Administrative Agent of each
Revolving Credit Note and Equipment Loan Note executed by the Borrower payable
to the applicable Lender in the amount of such Lender's Commitment.
(d) GUARANTY AGREEMENTS. Receipt by the Administrative Agent
of Guaranty Agreements executed by each of the Guarantors.
(e) CORPORATE DOCUMENTS FOR BORROWER. Receipt by the
Administrative Agent of the following corporate documents for the Borrower:
(i) a copy of its certificate of incorporation,
certified as true and correct by the Secretary of the State of Delaware not more
than twenty (20) days prior to the date hereof;
(ii) resolutions of the board of directors, in form
and substance reasonably satisfactory to the Administrative Agent, authorizing
the execution of the Loan Documents to be executed by the Borrower and the
performance by the Borrower pursuant thereto, certified by the secretary of the
Borrower as being true, correct, complete and in effect;
(iii) a copy of the by-laws and all amendments
thereto, certified by the secretary of the Borrower as being true, correct,
complete and in effect; and
(iv) an incumbency certificate for the Borrower,
showing the names of the Authorized Officers of the Borrower authorized to
execute this Agreement and any of the Loan Documents on behalf of the Borrower,
their titles and containing their true signatures.
(f) CORPORATE DOCUMENTS FOR GUARANTORS. Receipt by the
Administrative Agent of the following corporate documents for each Guarantor:
(i) a copy of its articles or certificate of
incorporation, certified as true and correct by the Secretary of the State of
incorporation or other applicable Governmental Authority not more than twenty
(20) days prior to the date hereof;
(ii) resolution of the board of directors, in form
and substance satisfactory to the Administrative Agent, authorizing the
execution of the Loan Documents to which such Guarantor is a party and
performance by such Guarantor pursuant thereto, certified by the secretary of
such Guarantor as being true, correct, complete and in effect;
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(iii) a copy of the by-laws of such Guarantor and all
amendments thereto, certified by the secretary of such Guarantor as being true,
correct, complete and in effect; and
(iv) an incumbency certificate for such Guarantor
showing the names of each Authorized Officer of such Guarantor, their titles and
containing their true signature.
(g) CLOSING CERTIFICATE. Receipt by the Administrative Agent
of a certificate substantially in the form of EXHIBIT F, dated as of the Closing
Date and executed by an Authorized Officer of the Borrower, stating that, as of
the Closing Date and after giving effect to the Loans made on such date and
Letters of Credit issued on such date, all of the representations and warranties
made by the Borrower herein and in the other Loan Documents are true and correct
in all material respects; no Default or Event of Default exists; and that since
December 31, 2000, no Material Adverse Effect has occurred.
(h) REQUEST FOR INITIAL LOANS. Receipt by the Administrative
Agent of written instructions addressed to the Administrative Agent and executed
by the Borrower, instructing the Administrative Agent as to the disbursement of
the Loans.
(i) ADEQUACY OF LEGAL MATTERS. All legal matters incident to
the Loans and the Loan Documents shall be reasonably satisfactory to the
Administrative Agent and its counsel.
(j) OPINION OF BORROWER'S LEGAL COUNSEL. Receipt by the
Administrative Agent of a satisfactory opinion of XXXXXXX, XXXXXXX & XXXXXXXX,
LLP, counsel to the Borrower, addressed to the Administrative Agent, the Lenders
and the Issuing Bank. In rendering such opinion, XXXXXXX, PHLEGER & XXXXXXXX,
LLP may rely (i) on an opinion of Borrower's in-house counsel as to legal
matters other than enforceability and the creation and perfection of security
interests, and (ii) on certificates from officers of the Borrower as to factual
matters on which such opinion is based.
(k) FEES. Receipt by the applicable party of any fee payable
by the Borrower to the Administrative Agent, the Lenders, the Issuing Bank or
PNC Capital Markets, Inc. ("PNC CAPITAL") hereunder, under any of the other Loan
Documents, or under that certain letter agreement dated as of February 2, 2001
between PNC Capital and the Borrower (the "LETTER AGREEMENT") including without
limitation the annual Agent's Fee of $15,000 (as defined in the Letter
Agreement), the Arrangement Fee (as defined in the Letter Agreement) and the
Closing Fee.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE BORROWER.
To induce the Administrative Agent, the Lenders and Issuing Bank to
enter into this Agreement and to make the Loans and other extensions of credit
herein provided for, the Borrower makes the following representations and
warranties to the Administrative Agent, the Lenders and the Issuing Bank, all of
which shall survive the execution and delivery of this Agreement and the making
of the Loans and other extensions of credit:
SECTION 5.1 ORGANIZATION, POWER AND AUTHORITY. The Borrower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware;
22
each Subsidiary of the Borrower is duly organized, validly existing and in good
standing under the laws of the state of its incorporation or organization; and
the Borrower and each Subsidiary of the Borrower are in good standing as foreign
corporations authorized to do business in each jurisdiction where the nature of
their respective activities or the ownership of their respective properties
makes such qualification or licensing necessary, other than jurisdictions in
which failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect. The Borrower and each of its Subsidiaries has
the corporate power and authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the business it transacts or
proposes to transact, to execute and deliver the Loan Documents to which it is a
party and to perform the provisions thereof.
SECTION 5.2 AUTHORIZATION; ETC. The Loan Documents to which each Loan
Party is a party have been duly authorized by all necessary corporate action on
the part of such Loan Party, and each of the Loan Documents constitute a legal,
valid and binding obligation of the Loan Party executing the same, enforceable
against such Loan Party in accordance with its terms except as such
enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforceability of
creditor's rights generally and (b) general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
The individuals who represent themselves to the Administrative Agent, the
Lenders and the Issuing Bank as holding one or more of the following executive
officer positions with the Borrower at the time of making a certification
hereunder shall be authorized to execute and deliver on behalf of the Borrower
the certifications contemplated under this Agreement to be delivered in the
future (each an "AUTHORIZED OFFICER"): Xxxxxx X. Xxxxxxx.
SECTION 5.3 FINANCIAL STATEMENTS. The Borrower has delivered or caused
to be delivered to the Administrative Agent copies of the Consolidated financial
statements of the Borrower. All of said financial statements (including in each
case the related schedules and notes) fairly present in all material respects
the financial condition of the Borrower and its Subsidiaries, on a consolidated
basis, as of the respective dates specified therein and the results of
operations and cash flows for the respective periods so specified and have been
prepared in accordance with GAAP consistently applied throughout the periods
involved except as set forth in the notes thereto (subject, in the case of any
interim financial statements, to the omission of notes thereto and normal
year-end adjustments).
SECTION 5.4 NO MATERIAL ADVERSE EFFECT. Since the most recent balance
sheet of the Borrower delivered to the Administrative Agent, neither the
Borrower nor any Subsidiary of the Borrower has suffered any damage, destruction
or loss to any Material part of its assets (tangible or intangible), and no
event or circumstance has occurred or exists, which individually or in the
aggregate has resulted or could reasonably be expected to result in a Material
Adverse Effect.
SECTION 5.5 NO DEFAULTS, VIOLATIONS OR CONFLICTS; ETC. The execution,
delivery and performance by the Loan Parties of the Loan Documents will not (a)
contravene, result in any breach of, or constitute a default under, or result in
the creation of any Lien in respect of any property of any Loan Party under, the
corporate charter, by-laws, or similar constituent documents, or any Material
indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease,
or any other Material agreement or instrument to which any Loan Party is
23
bound or by which any Loan Party or any of its properties may be bound or
affected, (b) conflict with or result in a breach of any of the terms,
conditions or provisions of any order, judgment, decree, or ruling of any court,
arbitrator or Governmental Authority applicable to any Loan Party, or (c)
violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to any Loan Party, which default or violation,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect.
SECTION 5.6 CONDITIONS OF AND TITLE TO PROPERTY; LEASES. Except as
disclosed on SCHEDULE 5.6, each Loan Party has good and sufficient title to or a
valid leasehold interest in all of its Material properties, including all such
properties reflected in the most recent balance sheet of the Borrower delivered
to the Administrative Agent or purported to have been acquired by the Borrower
after the date of said balance sheet (except as sold or otherwise disposed of in
the ordinary course of business), in each case free and clear of all Liens,
except for Permitted Liens.
SECTION 5.7 LITIGATION. Except as disclosed on SCHEDULE 5.7, there are
no actions, suits, proceedings or governmental investigations pending or, to
each Loan Party's knowledge, threatened against any Loan Party, in any court or
before any arbitrator of any kind or before any Governmental Authority, which,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect, or which purport to affect the rights and remedies of
the Administrative Agent, the Lenders, or the Issuing Bank pursuant to this
Agreement and the other Loan Documents or which purport to restrain or enjoin
(either temporarily, preliminarily or permanently) the performance by any Loan
Party of any action contemplated by any of the Loan Documents.
SECTION 5.8 TAX RETURNS. Except as disclosed on SCHEDULE 5.8, each Loan
Party has filed all returns and reports that are required to be filed by it in
connection with any federal, state or local tax, duty or charge levied, assessed
or imposed upon it or its property or withheld by it, including unemployment,
social security and similar taxes and all of such taxes, have been either paid
or adequate reserves or other provision for the payment thereof have been made
in accordance with GAAP, except for any non-filing of returns or reports or any
non-payment of taxes or assessments that could not individually or in the
aggregate reasonably be expected to have a Material Adverse Effect.
SECTION 5.9 EMPLOYEE BENEFIT PLANS. To the best knowledge of each Loan
Party, each employee benefit plan as to which any Loan Party may have any
liability complies in all material respects with all applicable provisions of
ERISA, including minimum funding requirements, and (a) no Prohibited Transaction
(as defined under ERISA) has occurred with respect to any such plan, (b) no
Reportable Event (as defined under Section 4043 of ERISA) has occurred with
respect to any such plan which would cause the Pension Benefit Guaranty
Corporation to institute proceedings under Section 4042 of ERISA, (c) the
Borrower has not withdrawn from any such plan or initiated steps to do so, and
(d) no steps have been taken to terminate any such plan.
SECTION 5.10 ENVIRONMENTAL MATTERS. Except as disclosed on SCHEDULE
5.10, each Loan Party is (or, in respect of prior owned or operated real
property, was) in compliance, in all material respects, with all Environmental
Laws, including, without limitation, all Environmental Laws in jurisdictions in
which such Loan Party owns or operates, or had owned or operated, a
24
facility or site, stores or has stored Collateral, arranges or has arranged for
disposal or treatment of hazardous substances, solid waste or other waste,
accepts or has accepted for transport any hazardous substances, solid waste or
other wastes. No litigation or proceeding arising under, relating to or in
connection with any Environmental Law is pending or, to each Loan Party's
knowledge, threatened against any Loan Party, any real property which any Loan
Party holds or has held an interest or any past or present operation of any Loan
Party that could reasonably be expected to result in a Material Adverse Effect.
To each Loan Party's knowledge, no release, threatened release or disposal of
hazardous waste, solid waste or other wastes is occurring, or to each Loan
Party's knowledge has occurred, on, under or to any real property in which any
Loan Party holds any interest or performs any of its operations, in violation of
any Environmental Law that could reasonably be expected to result in a Material
Adverse Effect. As used in this Section, "LITIGATION OR PROCEEDING" means any
demand, claim notice, suit, suit in equity, action, administrative action,
investigation or inquiry whether brought by a Governmental Authority or other
person; "ENVIRONMENTAL LAWS" means all provisions of laws, statutes, ordinances,
rules, regulations, permits, licenses, judgments, writs, injunctions, decrees,
orders, awards and standards promulgated by any Governmental Authority
concerning health, safety and protection of, or regulation of the discharge of
substances into, the environment; and the terms "REAL PROPERTY," "FACILITY" and
"SITE," when referring to real property, a facility or site leased and not owned
by any Loan Party, shall refer only to the portion of such real property,
facility or site actually or previously leased by any Loan Party.
SECTION 5.11 INTELLECTUAL PROPERTY. Each Loan Party owns or has a valid
and enforceable right to use all patents and patent rights owned or used by it
as set forth on Schedule 5.11 free and clear of all Liens except Permitted
Liens. To the knowledge each Loan Party, each Loan Party owns or has a valid and
enforceable right to use all trademarks, trade names, service marks, copyrights,
and other Intellectual Property, technology, know-how and processes necessary
for the conduct of its business as currently conducted, in each case, that are
Material, free and clear of all Liens except Permitted Liens. Except for the
patents, trademarks and copyrights described on SCHEDULE 5.11, the Loan Parties
do not own any patents, trademarks or copyrights.
SECTION 5.12 USE OF PROCEEDS; MARGIN REGULATIONS. The Borrower will use
the proceeds of the Loan only for lawful purposes in accordance with the terms
of this Loan Agreement. No part of the proceeds of the Loan will be used
directly or indirectly for the purpose of "PURCHASING" or "CARRYING" any "MARGIN
STOCK" within the respective meanings of each of the quoted terms under
Regulation U of the Board of Governors of the Federal Reserve System as now and
from time to time in effect or for any purpose which violates the provisions of
the Regulations of such Board of Governors.
SECTION 5.13 SOLVENCY. As of the date hereof and after giving effect to
the transactions contemplated by the Loan Documents, the Borrower will have
sufficient cash flow to enable it to generally pay its debts as and when they
mature and will not have an unreasonably small amount of capital relative to the
Borrower's business and operations.
SECTION 5.14 FULL DISCLOSURE. None of the Loan Documents contains any
untrue statement of material fact or omits to state a material fact necessary in
order to make the statements contained in this Agreement or the Loan Documents,
taken as a whole, not
25
misleading. There is no fact known to the Borrower which, individually or in the
aggregate with other facts known to the Borrower, could reasonably be expected
to have a Material Adverse Effect, and which has not otherwise been fully set
forth in this Agreement, the Addendum, the Schedules hereto or in the Loan
Documents. Each of the certificates delivered or to be delivered by each Loan
Party or any of its officers pursuant to the terms of the Loan Documents will be
true, accurate and complete in all material respects as of the date made.
SECTION 5.15 COMPLIANCE WITH LAWS. Each Loan Party has duly complied
with, and its properties, business operations and leaseholds are in compliance
in all material respects with all Governmental Rules applicable to it, its
properties and the conduct of its business, except where the failure to comply
will not have a Material Adverse Effect.
SECTION 6. AFFIRMATIVE COVENANTS.
The Borrower will comply with the covenants and agreements set forth in
this Section 6 from the date of execution of this Agreement unless and until all
Obligations have been fully paid and any commitments of the Administrative
Agent, the Lenders and the Issuing Bank to the Borrower have been terminated.
SECTION 6.1 BOOKS AND RECORDS. The Borrower will maintain and will
cause its Subsidiaries to maintain accurate and complete books and records. The
Borrower will give and will cause its Subsidiaries to give representatives of
the Administrative Agent (who may be accompanied by representatives of the
Lenders) access, upon request and during normal business hours and in accordance
with the provisions of this Section 6.1, to books and records of account,
including permission to examine, copy and make abstracts from any of such books
and records and such other information as the Administrative Agent may from time
to time reasonably request, and the Borrower will make available to the
Administrative Agent, and will cause its Subsidiaries to make available to the
Administrative Agent, during normal business hours and in accordance with the
provisions of this Section 6.1, for examination copies of any reports,
statements or returns which the Borrower or any of its Subsidiaries may make to
or file with any governmental department, bureau or agency, federal or state. So
long as an Event of Default does not exist, the Administrative Agent will give
reasonable written notice at least one (1) Business Day prior to conducting any
examination under the preceding sentence and shall not conduct such examinations
at Borrower's expense more than once in any calendar year. Administrative Agent
agrees that it will conduct such review in a manner so as not to unreasonably
interfere with Borrower's business. Except as permitted under Section 10.7
hereof in connection with an assignment or grant of a participation interest in
the Loan, the Administrative Agent, the Lenders and the Issuing Bank will treat
as confidential all non-public information contained in such books and records;
provided, however, that if the Administrative Agent, the Lenders or the Issuing
Bank is required to disclose confidential information pursuant to a court order,
subpoena or similar process, prior to disclosure the Administrative Agent, the
Lenders and the Issuing Bank will: (a) promptly provide the Borrower with a copy
of the court order or subpoena; (b) cooperate with the Borrower at the
Borrower's expense in obtaining a protective or similar order; and (c) in any
event, disclose only such confidential information as the Administrative Agent,
the Lenders and the Issuing Bank, with the advice of its counsel, shall deem
necessary to comply with such court order or subpoena.
26
SECTION 6.2 ACCOUNTS RECEIVABLE AGING; BORROWING BASE CERTIFICATE. The
Borrower will deliver to the Administrative Agent within 30 days after the end
of each month (a) a report on its accounts receivable aging and accounts payable
aging in such reasonable detail consistent with the form currently used by the
Borrower's management, and (b) an updated Borrowing Base Certificate, certified
as of such date by an Authorized Officer.
SECTION 6.3 FINANCIAL STATEMENTS; COPIES OF OTHER STATEMENTS.
(a) the Borrower will deliver to the Administrative Agent (x)
as soon as available but not later than forty-five (45) days after the last day
of each of the first three Fiscal Quarters of each Fiscal Year, the Borrower's
quarterly report to shareholders, if any, and its quarterly report on Form 10-Q
as filed with the Securities and Exchange Commission and, (y) within 90 days
after the end of each fiscal year beginning with the fiscal year ending December
31, 2001, the Borrower's annual report to shareholders and its annual report on
Form 10-K, as filed with the Securities and Exchange Commission, in each case
accompanied by a completed certificate signed by an Authorized Officer in the
form attached hereto as EXHIBIT G (a "COMPLIANCE CERTIFICATE") stating that (i)
such Authorized Officer has reviewed the terms of the Agreement and has made, or
caused to be made under his supervision, a review of the transactions and
condition of the Borrower during the accounting period covered by such financial
statements and that such review has not disclosed the existence during such
accounting period, and that such Authorized Officer does not have knowledge of
the existence as at the date of such Compliance Certificate, of any condition or
event which constitutes, an Event of Default or, if any Event of Default did
exist, a statement describing such Event of Default and the action the Borrower
has taken or proposes to take with respect thereto, (ii) the Borrower was in
compliance with the applicable financial covenants set forth in this Agreement
during such period, and (iii) calculations evidencing compliance with the
applicable financial covenants.
(b) the Borrower will deliver to the Administrative Agent
promptly upon their becoming available, copies of all financial statements,
reports, notices and information statements sent or made available generally by
the Borrower to its security holders (including, without limitation, Form 8-K)
filed by the Borrower with the Securities and Exchange Commission or any
Governmental Authority succeeding to any of its functions.
SECTION 6.4 FINANCIAL PROJECTIONS. The Borrower will deliver to the
Administrative Agent projections, forecasts, financial pro formas and such other
information reasonably requested by the Administrative Agent from time to time
that is in the nature of information presented to the Borrower's Board of
Directors or is in the nature of information generally disclosed to any of the
Borrower's existing stockholders or prospective investors, which at a minimum
shall include financial projections for each fiscal year, commencing with the
fiscal year beginning January 1, 2002, delivered to the Administrative Agent
prior to the beginning of each such fiscal year.
SECTION 6.5 PAYMENT OF TAXES AND OTHER CHARGES. The Borrower will and
will cause its Subsidiaries to pay and discharge when due all indebtedness and
all taxes, assessments, charges, levies and other liabilities imposed upon them,
their income, profits, property or business, except those which currently are
being contested in good faith by appropriate proceedings and for which they will
have set aside adequate reserves in accordance with GAAP
27
or made other adequate provision with respect thereto acceptable to the
Administrative Agent in its reasonable discretion; provided, however, that they
need not pay any such tax or assessment or claims if the nonpayment of all such
taxes and assessments and claims in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
SECTION 6.6 MAINTENANCE OF EXISTENCE, OPERATION AND ASSETS. The
Borrower will and will cause its Subsidiaries to do all things reasonably
necessary to maintain, renew and keep in full force and effect their
organizational existence and all rights, permits and franchises necessary to
enable them to continue their business; continue in operation in substantially
the same manner as at present; keep their properties in good operating condition
and repair subject to normal wear and tear; and will make all reasonably
necessary and proper repairs, renewals, replacements, additions and improvements
thereto; provided that nothing in this Section 6.6 shall prevent the Borrower or
any of its subsidiaries from discontinuing the operations and maintenance of any
of their properties if such discontinuance is, in the judgment of the Borrower
or such subsidiary, desirable in the conduct of its business and would not have
a Material Adverse Effect.
SECTION 6.7 INSURANCE. The Borrower will and will cause its
Subsidiaries to maintain with financially sound and reputable insurers, as
reasonably determined in good faith by them, insurance with respect to their
property and business against such casualties and contingencies, of such types
and in such amounts as is customary for established companies engaged in the
same or similar business and similarly situated, including, without limitation,
hazard and business interruption coverage, and will deliver to the
Administrative Agent at least once each year evidence of insurance (i.e.,
certificate of insurance) in form satisfactory to the Administrative Agent and
as otherwise provided in the Security Documents.
SECTION 6.8 COMPLIANCE WITH LAWS. The Borrower will and will cause its
Subsidiaries to comply in all material respects with all laws applicable to them
and to the operation of their business (including any statute, rule or
regulation relating to employment practices and pension benefits or to
environmental, occupational and health standards and controls), except where
failure to comply could not reasonably be expected to have, either individually
or in the aggregate, a Material Adverse Effect.
SECTION 6.9 FINANCIAL COVENANTS. The Borrower will comply with all of
the financial covenants set forth in this Section 6.9, and shall deliver to the
Administrative Agent, no later than 45 days following the end of each fiscal
quarter, a Compliance Certificate stating, among other things, whether the
Borrower is in compliance with the applicable financial covenants for the period
then ended. Each of the following financial covenants will be tested for
compliance at the end of each calendar quarter.
(a) The Borrower will not permit or suffer its ratio of Total
Liabilities to Tangible Net Worth to exceed (a) 1.00 to 1.00 during Fiscal Year
2001 and (b) 1.50 to 1.00 during Fiscal Year 2002 and thereafter.
(b) The Borrower shall not suffer Negative Operating Income in
excess of the amounts specified below for each Fiscal Quarter:
28
FISCAL QUARTER MAXIMUM OPERATING LOSS
-------------- ----------------------
Fiscal Quarter ending 3/31/01 $6.5 Million
Fiscal Quarter ending 6/30/01 $6.5 Million
Fiscal Quarter ending 9/30/01 $5.0 Million
Fiscal Quarter ending 12/31/01 $3.5 Million
Fiscal Quarter ending 3/31/02 $2.5 Million
Fiscal Quarter ending 6/30/02 $1.0 Million
Fiscal Quarter ending 9/30/02 and thereafter $0.0 Million
(c) The Borrower will not permit or suffer its Quick Ratio to
be less than 2.00 to 1.00 at any time.
SECTION 6.10 ADDITIONAL REPORTS. The Borrower will and will cause its
Subsidiaries to deliver written notice to the Administrative Agent promptly
after receiving notice or knowledge of the occurrence of any of the following,
together with a description of the action that the Borrower is taking or
proposes to take with respect thereto: (a) a Default or an Event of Default, (b)
any litigation filed by or against any Loan Party expressly claiming or
asserting damages in excess of $500,000, (c) any Reportable Event or Prohibited
Transaction with respect to any Employee Benefit Plan(s) (as defined in ERISA);
(d) any event that could reasonably be expected to have a Material Adverse
Effect; or (e) an Equity Event.
SECTION 6.11 BOARD REPORTS. After the occurrence and during the
continuance of an Event of Default, the Borrower will and will cause its
Subsidiaries to deliver to the Administrative Agent copies of all regular
periodic reports provided by management of any Loan Party to its Board of
Directors.
SECTION 6.12 RESERVED.
SECTION 6.13 RESERVED.
SECTION 6.14 INTELLECTUAL PROPERTY. The Borrower will not enter into
any agreement or undertaking pursuant to which the Borrower assigns for security
or grants or agrees to assign for security or grant to any Person a lien or
security interest in or otherwise encumber any of Borrower's present and future
right, title and interest in and to (a) any Intellectual Property, (b) the
registration of any Intellectual Property, (c) the right to xxx for past,
present and future infringements of any Intellectual Property, (d) the proceeds
of any Intellectual Property, including, without limitation, license royalties
and proceeds of infringement suits, or (e) the goodwill associated with any
Intellectual Property; provided, however, nothing herein shall restrict or
prohibit the Borrower from granting licenses of any Intellectual Property in the
ordinary course of business that are not for the purpose of granting security.
The Borrower will not enter into any agreement, covenant or undertaking with any
Person the terms of which would restrict or prohibit the Borrower from, or would
be violated upon, granting or assigning for security to the Administrative Agent
or the Lenders a lien or security interest in or otherwise encumbering in favor
of the Administrative Agent or the Lenders or assigning outright to the
Administrative Agent or the Lenders any Intellectual Property or other rights
and benefits described in the preceding sentence. The Borrower will not abandon
any Material Intellectual Property registration without the written consent of
the Administrative Agent. The Borrower
29
will maintain the Intellectual Property in full force and effect until all of
the Obligations are satisfied in full except for Intellectual Property rights
that expire automatically upon completion of their terms or as otherwise
provided in the immediately preceding sentence. Upon request of the
Administrative Agent after the occurrence and during the continuance of an Event
of Default, the Borrower will deliver to the Administrative Agent a description
of all such Intellectual Property existing at such time.
SECTION 7. NEGATIVE COVENANTS.
The Borrower will comply with the covenants and agreements set forth in
this Section 7 from the date of execution of this Agreement until all
Obligations have been fully paid and any commitments of the Lenders and the
Issuing Bank to the Borrower have been terminated.
SECTION 7.1 INDEBTEDNESS. The Borrower will not and will not permit its
Subsidiaries to incur or suffer to exist any indebtedness for borrowed money
other than: (a) the Loans and any subsequent indebtedness to the Lenders and the
Issuing Bank; (b) existing indebtedness of the Borrower and its Subsidiaries
disclosed on the most recent balance sheet of the Borrower delivered to the
Administrative Agent on or prior to the Closing Date, including extensions and
refinancings thereof which do not increase the principal amount of such
indebtedness as of the date of such extension or refinancing; (c) trade payables
incurred in the ordinary course of business; (d) indebtedness secured by a lien
described in clause (l) of the defined term "PERMITTED LIENS;" (e) Subordinated
Indebtedness, (f) loans in favor of the Borrower or any wholly-owned subsidiary
of the Borrower (and provided such subsidiary has entered into a Guaranty
Agreement and a Guarantor Security Agreement with the Administrative Agent);
provided, however, that loans in favor of a foreign subsidiary shall not exceed
$15,000,000 in the aggregate at any time outstanding; and (g) additional
unsecured indebtedness of the Borrower and its Subsidiaries not to exceed in the
aggregate $3,000,000 at any time outstanding.
SECTION 7.2 LIENS AND ENCUMBRANCES. Except for Permitted Liens, the
Borrower will not and will not permit its Subsidiaries to create, assume or
permit to exist any Lien upon any assets now owned or hereafter acquired or
enter into any lease or any arrangement for the acquisition of property subject
to any conditional sales agreement.
SECTION 7.3 GUARANTEES. Except for the guarantees described in SCHEDULE
7.3, the Borrower will not and will not permit its Subsidiaries to guarantee,
endorse or become contingently liable for the obligations of any person, firm or
corporation, except in connection with the endorsement and deposit of checks in
the ordinary course of business for collection.
SECTION 7.4 LOANS, INVESTMENTS AND ACQUISITIONS. The Borrower shall not
and shall not permit its Subsidiaries to purchase or hold beneficially any
stock, other securities or evidences of indebtedness, or make any investment or
acquire any interest whatsoever in, or make any advance, loan, extension of
credit or capital contribution to, any other Person, including, without
limitation, any Affiliate of the Borrower, or create or acquire any subsidiary,
or acquire all or any significant portion of the assets or equity interest of
another Person, except (a) investments (i) disclosed on the most recent balance
sheet of the Borrower delivered to the Administrative Agent on or prior to the
Closing Date or (ii) described in SCHEDULE 7.4, (b) loans and advances to
employees in the ordinary course of business not to exceed $1,000,000 in the
30
aggregate at any time outstanding, (c) investments in cash or Cash Equivalents,
(d) investments acceptable to the Required Lenders in their reasonable
discretion; (e) Permitted Acquisitions, provided that (i) no Event of Default
shall have occurred and be continuing or would result from such transaction or
transactions or the incurrance of any debt by the Borrower in connection
therewith, (ii) if such Permitted Acquisition is being effectuated by means of
the acquisition of equity interests of any Person (or the formation of a new
subsidiary to acquire assets of another Person), such acquired Person shall,
immediately upon the consummation of such Permitted Acquisition, become a
Guarantor hereunder and shall execute and deliver to the Administrative Agent a
Guaranty Agreement in substantially the form attached hereto as EXHIBIT K, a
Guarantor Security Agreement in the form attached hereto as EXHIBIT L, and such
other documentation as is reasonably required by the Administrative Agent in
connection with such Guaranty Agreement and Guarantor Security Agreement, (iii)
if such Permitted Acquisition is being effectuated by means of the acquisition
of equity interests of any Person (or the formation of a new Subsidiary to
acquire assets of another Person), the Borrower shall, immediately upon the
consummation of such Permitted Acquisition, pledge all (or 65% of equity
interests in foreign Persons) to the Administrative Agent, on behalf of the
Lenders, and shall deliver to the Administrative Agent stock certificates
representing such equity interests, stock transfers in blank and such other
documentation as is reasonably required by the Administrative Agent in
connection therewith, (iv) the Administrative Agent shall, immediately upon the
consummation of such Permitted Acquisition, obtain a first priority Lien subject
to existing liens securing Permitted Indebtedness, for the benefit of the
Lenders as collateral for the payment of the Obligations, in the assets and
equity interests being purchased or acquired by virtue of such acquisition
(including, without limitation, all of the outstanding equity interests of any
newly-formed subsidiary created for the purpose of effecting such acquisition),
and the Borrower shall have complied in all respects with the provisions of
Section 3 with respect to such assets and equity interests; (v) after giving
effect to such acquisition, the representations and warranties set forth in
Section 4 hereof shall be true and correct in all material respects on and as of
the date, and (vi) after giving effect to such acquisition, the Borrower is in
compliance with the financial covenants herein on a pro forma basis for the
periods ending prior to the closing of such acquisition; and (f) loans permitted
under Section 7.1(f) hereof.
SECTION 7.5 MERGER OR TRANSFER OF ASSETS. The Borrower will not and
will not permit its Subsidiaries to (a) lease, sell, transfer or otherwise
dispose of its property, assets and business whether now owned or hereafter
acquired except in the ordinary course consistent with past practice or as
contemplated in the financial projections delivered to the Administrative Agent
prior to the Closing Date, or (b) merge or consolidate with or into any Person,
except for mergers constituting investments permitted under Section 7.4.
SECTION 7.6 CHANGE IN BUSINESS, MANAGEMENT OR OWNERSHIP. The Borrower
will not and will not permit its Subsidiaries to make, suffer or permit any
material change (a) in the nature of its business as carried on as of the date
hereof, (b) in the composition of its current executive management if, as a
result of such change, both the person then serving as Chief Executive Officer
and the person serving as Chief Operating Officer of the Borrower would cease
serving in such capacity unless such change has been approved by one of the
individuals, or a majority of the individuals, if more than two, who are then
serving on the Borrower's Board of Directors as the designees or representatives
of institutional or professional investors that hold
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shares of the capital stock of the Borrower; (c) in the Borrower's fiscal year,
or (d) in the Borrower's accounting method.
SECTION 7.7 DIVIDENDS. The Borrower will not and will not permit its
Subsidiaries to declare or pay any cash dividends on or make any cash
distribution with respect to any class of its equity or ownership or membership
interests, or purchase, redeem, retire or otherwise acquire any of its equity or
ownership or membership interests other than in connection with employee
repurchase agreements entered into by the Borrower or any of Borrower's
Subsidiaries pursuant to (i) an Equity Event or (ii) the grant of stock options,
stock grants or options or grants to acquire ownership or membership interests
issued to employees under an existing plan approved by the Borrower's or such
Subsidiary's Board of Directors (a copy of which has been made available to the
Administrative Agent); provided, however, that the restrictions contained in
this Section 7.7 shall be lifted and this Section 7.7 shall be of no further
effect, after the Borrower has achieved Profitability, on a quarterly basis, for
a period of two consecutive fiscal quarters.
SECTION 7.8 AFFILIATE TRANSACTIONS. The Borrower shall not, without the
prior written consent of the Required Lenders, not unreasonably withheld, enter
into or carry out any Material transaction with an Affiliate (including, without
limitation, purchasing property or services from or selling property or services
to any Affiliate or other Person) unless such transaction (i) is entered into in
the ordinary course of business upon terms and conditions that are fair and
reasonable arm's-length transaction with a person not an Affiliate which are
fully disclosed to the Administrative Agent and the Lenders, and (ii) is in
accordance with all applicable Governmental Rules.
SECTION 7.9 SALE AND LEASEBACK TRANSACTIONS. The Borrower shall not and
shall not permit its Subsidiaries to, directly or indirectly, enter into any
arrangement with any Person providing for the Borrower, or any of its
Subsidiaries, to lease or rent property that the Borrower, or any of its
Subsidiaries, has sold or will sell or otherwise transfer to such Person.
SECTION 7.10 PREPAYMENTS OF OTHER INDEBTEDNESS. The Borrower will not
and will not permit its Subsidiaries to make, suffer or permit any prepayments
of or amend any provisions contained in documentation relating to any
indebtedness owed by the Borrower, or any of its Subsidiaries, to any Person
(which in the case of an amendment would make such provisions less favorable)
other than the Administrative Agent, the Lenders or the Issuing Bank, including,
without limitation, prepayment of indebtedness subordinated to the rights of the
Administrative Agent, the Lenders or the Issuing Bank, other than (a)
refinancings with respect to which the indebtedness owed by the Borrower or any
of its Subsidiaries is not changed and (b) payment of accrued and unpaid
interest of Permitted Indebtedness, provided that such payment is not prohibited
under the terms of a subordination agreement or other intercreditor agreement
with the Administrative Agent or any Lender.
SECTION 8. EVENTS OF DEFAULT; REMEDIES.
SECTION 8.1 EVENTS OF DEFAULT. The occurrence of any of the following
will be deemed to be an "EVENT OF DEFAULT:"
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(a) PAYMENT DEFAULT. The Borrower shall fail to pay any
payment of principal when due or any payment of interest within 5 calendar days
following the date when due, in respect of the Obligations.
(b) COVENANT DEFAULT. (i) The Borrower shall default in the
performance of, or violate any of, the covenants or agreements contained in
Sections 6.7, 6.9, 6.14 or 7; or (ii) the Borrower shall default in the
performance of, or violate any of, the covenants or agreements contained in this
Agreement (other than the Obligation to pay principal and interest on the Notes
or those contained in Sections 6.7, 6.9, 6.14 or 7) and, if capable of being
cured, such default or violation shall continue uncured for a period of 20
calendar days in the case of defaults or violations of Sections 6.2 or 6.3, and
a period of 30 calendar days in the case of all other covenants and agreements.
(c) BREACH OF WARRANTY. Any Financial Statement,
representation, warranty or certificate made or furnished by the Borrower to the
Administrative Agent, the Lenders or the Issuing Bank in connection with this
Agreement shall be false, incorrect or incomplete in any Material respect when
made.
(d) BANKRUPTCY OR INSOLVENCY. A proceeding shall have been
instituted in a court having jurisdiction over any Loan Party seeking a decree
or order for relief in respect of any Loan Party in an involuntary case under
the Bankruptcy Code or any other applicable bankruptcy, insolvency
reorganization or other similar law and such involuntary case shall remain
undismissed or unstayed and in effect for a period of 60 consecutive days, or
any Loan Party shall commence a voluntary case under any such law or consent to
the appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator, conservator (or other similar official).
(e) OTHER DEFAULT. The occurrence of an Event of Default as
defined in the Notes, any of the Security Documents, any Guaranty, or in the
Borrowing Base Rider or Letter of Credit Rider, subject to any applicable cure
periods or notice provisions contained therein.
(f) PAYMENT DEFAULTS UNDER OTHER INDEBTEDNESS DOCUMENTS. Any
Loan Party shall default in the payment of any Indebtedness (other than the
Obligations owed under this Agreement), which Indebtedness has an aggregate
outstanding principal balance of $500,000 or more when such payment is due
(whether by acceleration or otherwise) after giving effect to any grace or cure
period, or default by any Loan Party in the performance of any term of any
agreement or instrument under which any such Indebtedness is created or by which
it is governed or evidenced, if the effect of any such default is to cause such
Indebtedness to become, or to permit the holder or holders of such Indebtedness
(or any Person on behalf of such holder) to declare such Indebtedness due prior
to its expressed maturity.
(g) MATERIAL ADVERSE EFFECT. The occurrence of any event or
circumstance or any combinations of events or circumstances that alone or taken
together results in a Material Adverse Effect.
(h) ADVERSE JUDGMENTS. The aggregate amount of unbonded or
unstayed final judgments against the Borrower for which no further appellate
review exists shall, at any
33
one time, exceed, by $1,000,000 or more, the aggregate amount of insurance
proceeds available to pay such judgments.
(i) CHANGE OF CONTROL. The occurrence of a Change of
Control.
SECTION 8.2 REMEDIES. Upon the occurrence of an Event of Default
described in Section 8.1(d) and during the continuance thereof, the principal of
and accrued interest and all other amounts due and owing on the Loans (if not
then due and payable) shall become due and payable immediately, without
presentment, demand, notice, protest, declaration or any other requirement of
any kind, all which the Borrower expressly waives. Upon the occurrence and
continuance of an Event of Default other than as described in Section 8.1(d),
the Administrative Agent may, and shall upon request of the Required Lenders,
provide written notice to the Borrower stating that an Event of Default has
occurred and declaring that the principal of and accrued interest and all other
amounts due and owing on the Loans (if not then due and payable) shall become
due and payable immediately, without any further notice, presentment, demand,
protest, declaration or other requirement of any kind, all which the Borrower
expressly waives. Upon the occurrence and continuance of an Event of Default,
the Lenders shall have no further obligation to make any additional Loans
hereunder nor shall the Issuing Bank have any obligation to issue any additional
Letters of Credit. Upon the occurrence and continuance of an Event of Default,
and irrespective of whether the Loan has been declared due and payable pursuant
to the first sentence of this paragraph, the Administrative Agent, the Lenders
and the Issuing Bank will have all rights and remedies specified in the Notes
and the Security Documents and all rights and remedies (which are cumulative and
not exclusive) available under applicable law or in equity. Upon the occurrence
and continuance of an Event of Default, the Administrative Agent, the Lenders
and the Issuing Bank may notify any persons who are account debtors of the
Borrower to submit all payments in respect of the Borrower's accounts receivable
directly to the Administrative Agent, the Lenders or the Issuing Bank and shall
provide written notice to the Borrower that it has done so.
SECTION 8.3 ADDITIONAL REMEDIES. In addition to the remedies set forth
above, upon the occurrence of any Event of Default, (i) the Issuing Bank and the
Required Lenders shall have the right to require the Borrower establish with the
Issuing Bank and fund a cash collateral account to cash collateralize the Stated
Amount of each outstanding Letter of Credit, and (ii) the Administrative Agent,
the Lenders and the Issuing Bank shall have all of the rights and remedies
granted to them under this Agreement and the other Loan Documents and all other
rights and remedies granted by law to creditors.
SECTION 8.4 RIGHTS OF SET-OFF. In addition to any rights now or
hereafter granted under applicable law or otherwise, and not by way of
limitation of any such rights, upon the occurrence and during the continuance of
an Event of Default, the Administrative Agent, the Lenders and the Issuing Bank
are hereby authorized at any time or from time to time, without presentment,
demand, protest or other notice of any kind to the Borrower or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by the Administrative Agent, the Lenders
or the Issuing Bank (including, without limitation, by branches and agencies of
the Administrative Agent, the Lenders and the Issuing Bank wherever located) to
or for the credit or the account of the Borrower against and on account of the
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Obligations of the Borrower to the Administrative Agent, the Lenders or the
Issuing Bank under this Agreement or under any of the other Loan Documents,
including, without limitation, all other claims of any nature or description
arising out of or connected with this Agreement or any other Loan Document,
irrespective of whether or not the Administrative Agent, the Lenders or the
Issuing Bank shall have made any demand hereunder and although said Obligations,
liabilities or claims, or any of them, shall be contingent or unmatured.
SECTION 9. ADMINISTRATIVE AGENT
SECTION 9.1 APPOINTMENT AND GRANT OF AUTHORITY. Each of the Lenders
hereby appoints PNC Bank, and PNC Bank hereby agrees to act as, the
Administrative Agent under this Agreement, the Notes and the other Loan
Documents. As such Administrative Agent, the Administrative Agent shall have and
may exercise such powers under this Agreement as are specifically delegated to
them in their respective capacities, by the terms hereof, of the Notes or of the
other Loan Documents, together with such other powers as are incidental thereto.
Without limiting the foregoing, the Administrative Agent, on behalf of the
Lenders, is authorized to execute all of the Loan Documents (other than this
Agreement) and to accept all of the Loan Documents and all other agreements,
documents or instruments reasonably required to carry out the intent of the
parties to this Agreement.
SECTION 9.2 NON-RELIANCE ON THE ADMINISTRATIVE AGENT. Each Lender
agrees that it has, independently and without reliance on the Administrative
Agent and based on such documents and information as it has deemed appropriate,
made its own credit analysis and evaluation of the Borrower and their operations
and independently made its own decision to enter into this Agreement. Each
Lender further agrees that it will, independently and without reliance upon the
Administrative Agent and based on such documents and information as it shall
deem appropriate at the time, continue to make its own analysis and decisions in
taking or not taking action under this Agreement. Except as otherwise provided
herein, the Administrative Agent shall have no duty to keep the Lenders informed
as to the performance or observance by the Borrower of this Agreement or the
other Loan Documents, nor shall the Administrative Agent be required to inspect
the properties or books of the Borrower. The Administrative Agent, in the
absence of gross negligence or willful misconduct, shall not be liable to any
Lender for any failure to relay or furnish to such Lender any information. The
preceding provisions of this Section 9.2 to the contrary notwithstanding, the
Administrative Agent shall notify each of the Lenders as soon as practicable
after it receives any certificates, reports or notices delivered by the Borrower
to the Administrative Agent hereunder, including, without limitation, under
Sections 6.2, 6.3, 6.4, 6.10 and 6.11 hereof.
SECTION 9.3 RESPONSIBILITY OF ADMINISTRATIVE AGENT AND OTHER MATTERS.
(a) MINISTERIAL NATURE OF DUTIES. As among the Lenders and the
Administrative Agent, the Administrative Agent shall have no duties or
responsibilities except those expressly set forth in this Agreement, the Notes
or in the other Loan Documents, and those duties and responsibilities shall be
subject to the limitations and qualifications set forth in this Section 9. The
duties of the Administrative Agent shall be ministerial and administrative in
nature.
35
(b) LIMITATION OF LIABILITY. As among the Lenders and the
Administrative Agent, neither the Administrative Agent nor any of their
respective directors, officers, employees or agents shall be liable for any
action taken or omitted (whether or not such action taken or omitted is within
or without the Administrative Agent's respective responsibilities and duties
expressly set forth in this Agreement) under or in connection with this
Agreement or any other instrument or document in connection herewith except for
gross negligence or willful misconduct. Without limiting the foregoing, neither
the Administrative Agent nor any of their respective directors, officers or
employees shall be responsible for, or have any duty to examine (i) the
genuineness, execution, validity, effectiveness, enforceability, value or
sufficiency of (A) this Agreement, the Notes or any of the other Loan Documents
or (B) any other document or instrument furnished pursuant to or in connection
with this Agreement, (ii) the collectability of any amounts owed by the Borrower
to the Lenders, (iii) the truthfulness of any recitals, statements,
representations or warranties made to the Administrative Agent or the Lenders in
connection with this Agreement, (iv) any failure of any party to this Agreement
to receive any communication sent, including any telegram, teletype, electronic
data transmission, facsimile transmission or telephone message or any writing,
application, notice, report, statement, certificate, resolution, request, order,
consent letter or other instrument or paper or communication entrusted to the
mails or to a delivery service, or (v) the assets, liabilities, financial
condition, results of operations or business, or creditworthiness of the
Borrower.
(c) RELIANCE. The Administrative Agent shall be entitled to
act, and shall be fully protected in acting upon, any telegram, teletype,
electronic data transmission, facsimile transmission or any writing,
application, notice, report, statement, certificate, resolution, request, order,
consent, letter or other instrument, paper or communication believed by the
Administrative Agent in good faith to be genuine and correct and to have been
signed or sent or made by a proper Person. The Administrative Agent may consult
counsel and shall be entitled to act, and shall be fully protected in any action
taken in good faith, in accordance with advice given by counsel. The
Administrative Agent may employ agents and attorneys-in-fact and shall not be
liable for the default or misconduct of any such Administrative agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care. The
Administrative Agent shall not be bound to ascertain or inquire as to the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any of the other Loan Documents on the part of the Borrower or any
other party thereto.
SECTION 9.4 ACTION ON INSTRUCTIONS. The Administrative Agent shall be
required to act and shall be fully protected in so acting and shall be entitled
to refrain from acting, and shall be fully protected in refraining from so
acting, under this Agreement, the Notes, the other Loan Documents or any other
instrument or document executed or delivered in connection herewith or
therewith, in accordance with written instructions from the Required Lenders or,
in the case of the matters set forth in items (a) through (g) of Section 10.2,
from all of the Lenders.
SECTION 9.5 INDEMNIFICATION. To the extent the Borrower does not
reimburse and save harmless the Administrative Agent according to the terms
hereof for and from all costs, expenses and disbursements in connection
herewith, such costs, expenses and disbursements shall be borne by the Lenders
ratably in accordance with their respective Commitment Percentages. Each Lender
hereby agrees on such basis (i) to reimburse the Administrative Agent for such
Lender's pro rata share of all such reasonable costs, expenses and disbursements
on request and (ii) to the
36
extent of each such Lender's pro rata share, to indemnify and save harmless the
Administrative Agent against and from any and all losses, obligations,
penalties, actions, judgments and suits and other costs, expenses and
disbursements of any kind or nature whatsoever which may be imposed on, incurred
by or asserted against the Administrative Agent, other than as a consequence of
gross negligence or willful misconduct on the part of the Administrative Agent,
arising out of or in connection with (i) this Agreement, the Notes, the other
Loan Documents or any other agreement, instrument or document executed or
delivered in connection herewith or therewith, or (ii) any action taken at the
request of the Required Lenders or all of the Lenders hereunder, as the case may
be, including without limitation the reasonable costs, expenses and
disbursements in connection with defending themselves against any claim or
liability, or answering any subpoena or other process related to the exercise or
performance of any of their powers or duties under this Agreement, the other
Loan Documents, or any of the other agreements, instruments or documents
executed or delivered in connection herewith or the taking or refraining from
any action under or in connection with any of the foregoing.
SECTION 9.6 ADMINISTRATIVE AGENT'S RIGHTS AS LENDER. With respect to
the Commitments of the Administrative Agent as Lenders hereunder, and any Loans
of the Administrative Agent under this Agreement, the other Loan Documents and
any other agreements, instruments and documents delivered pursuant hereto and
any other amounts due to the Administrative Agent under this Agreement, the
Administrative Agent shall have the same rights and powers, duties and
obligations under this Agreement, the Notes, the other Loan Documents or other
agreement, instrument or document as any Lender and may exercise such rights and
powers and shall perform such duties and fulfill such obligations as though it
were not an Administrative Agent hereunder. The Administrative Agent may accept
deposits from, lend money to, and generally engage, and continue to engage, in
any kind of business with the Borrower as if it were not an Administrative Agent
hereunder.
SECTION 9.7 PAYMENT TO LENDERS. Promptly after receipt from the
Borrower of any principal repayment of the Loans, interest due on the Loans and
any Fees owing to the Lenders or other amounts due under any of the Loan
Documents (except for such amounts which are payable for the sole account of any
Lender or the Administrative Agent), the Administrative Agent shall distribute
to each Lender that Lender's share of the funds so received.
SECTION 9.8 PRO RATA SHARING. All interest and principal payments on
the Loans and all Commitment Fees and Letter of Credit Fees are to be divided
pro rata among the Lenders in accordance with their respective Commitment
Percentages. Any sums obtained from the Borrower by any Lender by reason of the
exercise of its rights of set-off, banker's lien or in collection shall be
shared (net of costs) pro rata among the Lenders on the basis of the principal
amount of Loans outstanding. Nothing in this Section 9.8 shall be deemed to
require the sharing among the Lenders of collections specifically relating to,
or of the proceeds of any collateral securing, any other Indebtedness of the
Borrower to any Lender.
SECTION 9.9 SUCCESSOR AGENT.
(a) RESIGNATION OF ADMINISTRATIVE AGENT. The Administrative
Agent may resign as Administrative Agent hereunder by giving ninety (90) days
prior written notice to the Lenders and the Borrower. If such notice shall be
given, the Required Lenders shall appoint a
37
successor agent for the Lenders, during such ninety (90) day period, which
successor agent shall be reasonably satisfactory to the Borrower, to serve an
Administrative Agent hereunder and under the several Loan Documents. If at the
end of such ninety (90) day period, the Lenders have not appointed such a
successor, the resigning Administrative Agent shall use reasonable commercial
efforts to procure a successor reasonably satisfactory to the Lenders and the
Borrower, to serve as a successor agent for the Lenders hereunder and under the
several Loan Documents. Any such successor agent shall succeed to the rights,
powers and duties of the resigning Administrative Agent.
(b) RIGHTS OF THE FORMER ADMINISTRATIVE AGENT. Upon
the appointment of such successor agent or upon the expiration of such ninety
(90) day period (or any longer period to which the resigning Administrative
Agent has agreed), the resigning Administrative Agent's rights, powers and
duties hereunder shall be terminated, without any other or further act or deed
on the part of such former Administrative Agent or any of the parties to this
Agreement. After any resigning Administrative Agent's resignation hereunder as
an Administrative Agent hereunder, the provisions of this Section 9 shall inure
to the benefit of such retiring Administrative Agent as to any actions taken or
omitted to be taken by it while it was an Administrative Agent under this
Agreement.
SECTION 10. GENERAL PROVISIONS
SECTION 10.1 SET-OFF. If the unpaid principal amount of the Notes,
interest accrued on the unpaid principal amount of the Notes or other amount
owing by the Borrower under this Agreement, the Notes or the other Loan
Documents shall have become due and payable (at maturity, by acceleration or
otherwise upon the occurrence of an Event of Default and during the continuance
thereof), each Lender will have the right, in addition to all other rights and
remedies available to it, to set-off against and to appropriate and apply to
such due and payable amounts any debt owing to, and any other funds held in any
manner for the account of, the Borrower by such Lender including, without
limitation, all funds in all deposit accounts (whether time or demand, general
or special, provisionally credited or finally credit, or otherwise) now or in
the future maintained by the Borrower with such Lender (but excluding in any
event accounts held by such Lender in a fiduciary capacity or as trustee, such
as Borrower's 401(k) Plan account). The Borrower consents to and confirms the
foregoing arrangements and confirms each Lender's right of banker's lien and
set-off. Nothing in this Agreement will be deemed a waiver or prohibition of or
restriction on each Lender's rights of banker's lien or set-off.
SECTION 10.2 AMENDMENTS AND WAIVERS. Subject to the remaining
provisions of this Section 10.2, the Agent, the Lenders and the Borrower may,
from time to time, enter into amendments, extensions, renewals, modifications,
supplements and replacements to and of this Agreement, the Notes or the other
Loan Documents and the Lenders or the Required Lenders, as the case may be, may,
from time to time, waive compliance with a provision thereof. No amendment,
renewal, modification, extension, supplement, replacement or waiver of any
provision of the Agreement, the Notes or the other Loan Documents or consent to
any departure therefrom by the Borrower shall be effective unless it is in
writing and is signed by the Required Lenders (or the Administrative Agent with
the written consent of the Required Lenders), and then such waiver or consent
shall be effective only for the specific instance and for the specific purpose
for which it is given; provided, however, that no amendment, renewal,
modification,
38
waiver or consent, unless in writing and signed by all of the Lenders (or the
Administrative Agent with the written consent of all of the Lenders), shall do
any of the following:
(a) increase the Commitment of any Lender or subject any
Lender to any additional obligations hereunder;
(b) except for changes made pursuant to an Assignment and
Assumption Agreement, change any Lender's Commitment Percentage or the aggregate
or individual unpaid principal amount of the Notes, or forgive the payment of
the principal or interest payable on the Notes;
(c) waive an Event of Default in the payment of principal
and/or interest due hereunder and under any of the Notes;
(d) decrease the interest rate relating to the Loans;
(e) postpone any date fixed for any payment of principal of or
interest on the Loans, the Commitment Fee, the Letter of Credit Fee, or any
other obligations of the Borrower to the Lenders set forth in Section 2;
(f) reduce the Commitment Fee or the Letter of Credit Fee;
(g) amend the definition of the term "REQUIRED LENDERS",
"MAXIMUM AVAILABLE REVOLVING CREDIT LOAN AMOUNT" or "BORROWING BASE" as used
herein, or amend or waive the provisions of Section 2.2(a), 7.4(e), 9.8, 10.10
or this Section 10.2 hereof;
(h) release any Guarantor from its obligations pursuant to any
Guaranty Agreement;
(i) release any collateral securing the Obligations from the
security interest therein in favor of the Administrative Agent, for itself and
on behalf of the Lenders and the Issuing Bank; or
(j) amend or waive the provisions of this Section 10.2 in any
manner.
Any such supplemental agreement shall apply equally to the Borrower and
each of the Lenders and shall be binding upon the Borrower, the Lenders, the
Administrative Agent and all future holders of the Notes. In the case of any
waiver, the Borrower, the Lenders and the Administrative Agent shall be restored
to their former positions and rights, and any Event of Default waived shall be
deemed to be cured and not continuing, but no such waiver shall extend to any
subsequent or other Event of Default, or impair any right consequent thereon.
SECTION 10.3 TAXES. The Borrower shall pay any and all stamp, document,
transfer and recording taxes, filing fees and similar impositions payable or
hereafter reasonably determined by the Administrative Agent to be payable in
connection with this Agreement, the other Loan Documents and any other
documents, instruments and transactions pursuant to or in connection with any of
the Loan Documents other than for any tax which is measured on each Lender's net
income. The Borrower agrees to save the Lenders harmless from and against any
and all present
39
and future claims or liabilities with respect to, or resulting from, any delay
in paying or failure to pay any such taxes or similar impositions (other than
taxes or similar impositions remitted by the Borrower to a Lender and which such
Lender fails to pay in a timely or appropriate manner). The obligations of the
Borrower pursuant to this Section 10.3 shall survive the termination of this
Agreement and the repayment of the Obligations.
SECTION 10.4 INCREASED COSTS. Within 30 calendar days following written
demand, together with the written evidence of the justification therefore
(including in reasonable detail, the calculation thereof), the Borrower will pay
to the Administrative Agent, all direct increased costs incurred and any losses
suffered or increased payments made by the Lenders as a consequence of making
the Loan by reason of any change in law or regulation or the interpretation of
any law or regulation imposing any reserve, deposit, allocation of capital or
similar requirement; provided that (i) each Lender shall take commercially
reasonable steps to mitigate or reduce amounts otherwise payable by the Borrower
and (ii) Borrower is not responsible for costs arising more than 90 days prior
to receipt of notice.
SECTION 10.5 EXPENSES. The Borrower shall pay:
(a) All (A) out-of-pocket costs and expenses incurred by the
Administrative Agent in connection with the preparation, execution and delivery
of this Agreement, the other Loan Documents, and any and all other documents and
instruments prepared in connection herewith, including the Administrative
Agent's legal fees and expenses in connection therewith, and (B) reasonable
costs and expenses of the Administrative Agent (including but not limited to
reasonable fees and expenses of the Administrative Agent's counsel) in
connection with all amendments, waivers, consents and other documents and
instruments prepared or entered into from time to time in connection with this
Agreement and the other Loan Documents, after the Closing Date; and
(b) All reasonable costs and expenses of the Administrative
Agent, the Lenders and the Issuing Bank (including without limitation the
reasonable fees and disbursements of each such Person's counsel) in connection
with (A) the enforcement of this Agreement and the other Loan Documents arising
pursuant to a breach by Borrower of any of the terms, conditions,
representations, warranties or covenants of any Loan Document to which it is a
party including without limitation workouts and renegotiations; or (B) defending
or prosecuting any actions, suits or proceedings relating to any of the Loan
Documents.
All of such costs and expenses shall be payable by the Borrower to the
Administrative Agent, upon demand or as otherwise agreed upon by the
Administrative Agent and the Lenders, and shall constitute Obligations under
this Agreement. The Borrower's obligations to pay such costs and expenses shall
survive the termination of this Agreement and the repayment of the Obligations.
SECTION 10.6 NOTICES.
(a) NOTICE TO THE BORROWER. All notices required to be
delivered to the Borrower pursuant to this Agreement shall be in writing and
shall be sent to the following
40
address, by hand delivery, recognized national overnight courier service, telex,
telegram or facsimile transmission:
Xxxxxx Xxxxxxx, Chief Financial Officer
Vastera, Inc.
00000 Xxxxxxxx Xxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxxxxxx, Vice President
Corporate and Legal Affairs
Vastera, Inc.
00000 Xxxxxxxx Xxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) NOTICE TO THE ADMINISTRATIVE AGENT OR THE ISSUING BANK.
All notices required to be delivered to the Administrative Agent or the Issuing
Bank pursuant to this Agreement shall be in writing and shall be sent to the
following address, by hand delivery, recognized national overnight courier
service, telex, telegram, facsimile transmission or by the United States mail,
first class, postage prepaid:
PNC Bank, National Association
One PNC Plaza
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
PNC Bank, National Association
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xx. Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(c) NOTICE TO THE LENDERS. All notices required to be
delivered to the Lenders pursuant to this Agreement shall be in writing (unless
otherwise provided herein) and shall be sent to the addresses set forth on the
signature pages of the Agreement, by hand delivery,
41
recognized national overnight courier service, telex, telegram, facsimile
transmission or by the United States mail, first class, postage prepaid.
(d) RECEIPT OF NOTICES. All such notices shall be effective
three (3) days after mailing, or when received, whichever is earlier. The
Borrower, the Lenders and the Administrative Agent may each change the address
for service of notice upon it by a notice in writing to the other parties hereto
in accordance with the above terms.
SECTION 10.7 ASSIGNMENTS AND PARTICIPATIONS.
(a) ASSIGNMENTS. Subject to the remaining provisions of this
Subsection 10.7(a), any Lender (a "TRANSFEROR LENDER"), at any time, in the
ordinary course of its commercial banking business and in accordance with
applicable law, may sell to one or more financial institutions (individually a
"PURCHASING LENDER"), a portion or all of its rights and obligations under this
Agreement and the Notes then held by it, pursuant to an Assignment and
Assumption Agreement substantially in the form of EXHIBIT H executed by the
Transferor Lender, such Purchasing Lender and the Administrative Agent; subject,
however to the following requirements:
(i) Each such assignment must be in a minimum amount
of $4,000,000, or, if in excess thereof, in integral multiples of $1,000,000,
unless the Transferor Lender's Commitment is less than $4,000,000, in which case
such assignment shall be in the full amount of the Transferor Lender's
Commitment;
(ii) The Borrower and the Administrative Agent shall
consent to each such assignment, which consent shall not be unreasonably
withheld or delayed; and
(iii) The Transferor Lender shall pay to the
Administrative Agent a $3,500 service fee for each such transfer at the time of
each such transfer;
provided, however, the restrictions set forth in item (i) above shall not apply
(x) in the case of an assignment by a Lender to an Affiliate of such Lender or
(y) in the case of any assignment by any Transferor Lender upon the occurrence
and during the continuation of an Event of Default; and provided, further, that
upon the occurrence and during the continuance of an Event of Default the
consent of the Borrower to any assignment shall not be required.
Upon the execution, delivery, acceptance and recording of any such
Assignment and Assumption Agreement, from and after the Transfer Effective Date
determined pursuant to such Assignment and Assumption Agreement, all parties
hereto agree that (a) the Purchasing Lender thereunder shall be a party hereto
as a Lender and, to the extent provided in such Assignment and Assumption
Agreement, shall have the rights and obligations of a Lender hereunder with a
Commitment as set forth therein, and (b) the Transferor Lender thereunder shall,
to the extent provided in such Assignment and Assumption Agreement, be released
from its obligations as a Lender under this Agreement. Such Assignment and
Assumption Agreement shall be deemed to amend this Agreement (without further
action) to the extent, and only to the extent, necessary to reflect the addition
of such Purchasing Lender as a Lender and the resulting adjustment of Commitment
Percentages arising from the purchase by such Purchasing Lender of all or a
portion of the rights and obligations of such Transferor Lender under this
Agreement and its
42
Notes. On or prior to the Transfer Effective Date, the Borrower shall execute
and deliver to the Administrative Agent, in exchange for the surrendered Notes
held by the Transferor Lender, to the order of such Purchasing Lender in an
amount equal to the Commitment or the Loans assumed by it and purchased by it
pursuant to such Assignment and Assumption Agreement, and new Notes payable to
the order of the Transferor Lender in an amount equal to the Commitment or the
Loans retained by it hereunder.
In addition to the assignments permitted above, any Lender may assign
and pledge all or any portion of its Loans and Notes to any Federal Reserve Bank
as collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender from its obligations
and duties hereunder.
(b) ASSIGNMENT REGISTER. The Administrative Agent shall
maintain, at its address referred to in Subsection 10.6(b), a copy of each
Assignment and Assumption Agreement delivered to it and a register (the
"REGISTER") for the recordation of the names and addresses of the Lenders and
the amount of the Loans owing to each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent and the Lenders may treat each Person whose
name is recorded in the Register as the owner of the Loans recorded therein for
all purposes of this Agreement. The Register shall be available at the office of
the Administrative Agent set forth in Subsection 10.6(b) for inspection by
either the Borrower or any Lender at any reasonable time and from time to time
upon reasonable prior notice.
(c) PARTICIPATIONS. Each Lender, in the ordinary course of its
commercial banking business and in accordance with applicable law, may sell to
one or more Participants a participating interest (in minimum amounts of
$4,000,000) in any Loan owing to such Lender, the interest of such Lender in any
Notes or the Commitment of such Lender. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender shall remain the holder of its Notes for all purposes under
this Agreement and the Borrower, the other Lenders and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement or its Notes. No
participation interest may be sold to a direct competitor of the Borrower.
SECTION 10.8 WITHHOLDING OF INCOME TAXES. At least five (5) Business
Days prior to the first date on which interest or fees are payable hereunder for
the account of any Lender or Participant each Lender or Participant that is not
incorporated under the laws of the United States or a state thereof shall
deliver to the Borrower and the Administrative Agent two (2) duly completed
copies of United States Internal Revenue Service Form W-9, 4224 or 1001 or other
applicable form prescribed by the Internal Revenue Service. Such form shall
certify that such Lender or Participant is entitled to receive payments under
this Agreement and any applicable Note without deduction or withholding of any
United States Federal income taxes, or is subject to such tax at a reduced rate
under an applicable tax treaty or under United States Internal Revenue Service
Form W-8, or another applicable form or a certificate of such Lender or
Participant indicating that no such exemption or reduced rate is allowable with
respect to such
43
payments. Each Lender or Participant which delivers a Form W-8, W-9, 4224 or
1001 further undertakes to deliver to the Borrower and the Administrative Agent
two additional copies of such form (or a successor form) on or before the date
that such form expires or becomes obsolete or after the occurrence of any event
requiring a change in the most recent form so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
required by the Borrower or the Administrative Agent, either certifying that
such Lender or Participant is entitled to receive payments under this Agreement
and the Notes without deduction or withholding of any United States Federal
income taxes or is subject to such tax at a reduced rate under an applicable tax
treaty or stating that no such exemption or reduced rate is allowable. The
Administrative Agent shall be entitled to withhold United States Federal income
taxes at the full withholding rate, unless the Lender or Participant establishes
an exemption, or at the applicable reduced rate, as established pursuant to the
provisions of this Section 10.8.
SECTION 10.9 INDEMNITY. The Borrower hereby agrees to indemnify the
Administrative Agent, the Lenders and the Issuing Bank and each of their
respective directors, officers, employees, attorneys, agents and Affiliates
against, and hold each of them harmless from, any loss, liabilities, damages,
claims, costs and expenses (including reasonable attorneys' fees and
disbursements) suffered or incurred by any of them arising out of, resulting
from or in any manner connected with, the execution, delivery and performance of
each of the Loan Documents, the Loans, the Notes and any and all transactions
related to or consummated in connection with the Loans, including, without
limitation, losses, liabilities, damages, claims, costs and expenses suffered or
incurred by the Administrative Agent, the Lenders and the Issuing Bank or any of
their respective directors, officers, employees, attorneys, agents or Affiliates
arising out of or related to investigating, preparing for, defending against, or
providing evidence, producing documents or taking any other action in respect of
any commenced or threatened litigation, administrative proceeding or
investigation under any Federal Securities Law or any other Governmental Rule of
any jurisdiction, or at common law or otherwise, that is alleged to arise out of
or is based on (i) any untrue statement or alleged untrue statement of any
material fact of the Borrower or any Affiliate of the Borrower in any document
or schedule filed with the Securities and Exchange Commission or any other
Governmental Authority; (ii) any omission or alleged omission to state any
material fact required to be stated in such document or schedule, or necessary
to make the statements made therein, in light of the circumstances under which
made, not misleading; (iii) any actual or alleged acts, practices or omissions
of the Borrower or its directors, officers, partners, employees, attorneys,
agents or Affiliates related to the making of any acquisition, purchase of
shares or assets pursuant thereto, financing of such purchases or the
consummation of any other transactions contemplated by any such acquisitions
that are alleged to be in violation of any Federal securities law or of any
other statute, regulation or other law of any jurisdiction applicable to the
making of any such acquisition, the purchase of shares or assets pursuant
thereto, the financing of such purchases or the consummation of the other
transactions contemplated by any such acquisition; or (iv) any withdrawals,
termination or cancellation of any such proposed acquisition for any reason
whatsoever. Excluding, however, any claim arising due to the gross negligence or
willful misconduct of the indemnified party. The indemnity set forth in this
Section 10.9 shall be in addition to any other obligations or liabilities of the
Borrower to the Administrative Agent, the Lenders of the Issuing Bank, or at
common law or otherwise. The provisions of this Section 10.9 shall survive the
payment of the Obligations and the termination of this Agreement.
44
SECTION 10.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Borrower, the Administrative Agent, the Lenders, the Issuing Bank and
their respective successors and assigns, and shall inure to the benefit of the
Borrower, the Administrative Agent, the Lenders, the Issuing Bank and their
respective successors and assigns; provided, however, that the Borrower shall
not assign its rights or duties hereunder or under any of the other Loan
Documents without the prior written consent of all of the Lenders and the
Lenders shall not assign their interest hereunder except in accordance with
Section 10.7 hereof.
SECTION 10.11 CONFIDENTIALITY. The Administrative Agent, the Lenders
and the Issuing Bank shall keep confidential and not disclose to any Person,
other than to its directors, officers, employees, Affiliates and agents, and to
actual and potential Purchasing Lenders or Participants (and then, only on a
confidential basis), all non-public information concerning the Borrower and its
Affiliates which comes into the possession of the Administrative Agent, the
Lenders and the Issuing Bank during the term hereof. Notwithstanding the
foregoing, the Administrative Agent, the Lenders and the Issuing Bank may
disclose information concerning the Borrower (i) pursuant to the lawful
requirements or request of any Governmental Authority regulating banks or
banking, (ii) as required by Governmental Rule, judicial process or subpoena and
(iii) to their respective attorneys, accountants and auditors; provided that the
Administrative Agent, each Lender and the Issuing Bank shall advise the Borrower
of such disclosure.
SECTION 10.12 SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or enforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 10.13 SURVIVAL. All representations, warranties, covenants and
agreements of the Borrower contained herein or in the other Loan Documents or
made in writing in connection herewith shall survive the issuance of the Notes
and shall continue in full force and effect so long as the Borrower may borrow
hereunder and so long thereafter until payment in full of the Loans, the Notes
and the Obligations is made.
SECTION 10.14 PRESERVATION OF RIGHTS. No delay or omission on the part
of the Lenders to exercise any right or power arising hereunder will impair any
such right or power or be considered a waiver of any such right or power or any
acquiescence therein, nor will the action or inaction of the Lenders impair any
right or power arising hereunder. The Lenders' rights and remedies hereunder are
cumulative and not exclusive of any other rights or remedies which the Lenders
may have under other agreements, at law or in equity.
SECTION 10.15 ILLEGALITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
SECTION 10.16 CHANGES IN WRITING. No modification, amendment or waiver
of any provision of this Agreement nor consent to any departure by the Borrower
therefrom, will in any event be effective unless the same is in writing and
signed by the Lenders and, in the case of amendments and modifications, by the
Borrower, and then such waiver or consent shall be
45
effective only in the specific instance and for the purpose for which given. No
notice to or demand on the Borrower in any case will entitle the Borrower to any
other or further notice or demand in the same, similar or other circumstance.
SECTION 10.17 INTERPRETATION. In this Agreement, unless the Lenders and
the Borrower otherwise agree in writing, the singular includes the plural and
the plural the singular; words importing any gender include the other genders;
references to statutes are to be construed as including all statutory provisions
consolidating, amending or replacing the statute referred to; the word "OR"
shall be deemed to include "AND/OR," the words "INCLUDING," "INCLUDES" and
"INCLUDE" shall be deemed to be followed by the words "WITHOUT LIMITATION";
references to sections (or subdivisions of sections), schedules or exhibits are
to those of this Agreement unless otherwise indicated; and references to
agreements and other contractual instruments shall be deemed to include all
subsequent amendments and other modifications to such instruments, but only to
the extent such amendments and other modifications are not prohibited by or are
entered into in accordance with the terms of this Agreement. Section headings in
this Agreement are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose. Unless otherwise
specified in this Agreement, all accounting terms shall be interpreted and all
accounting determinations shall be made in accordance with GAAP. If this
Agreement is executed by more than one party as Borrower, the obligations of
such persons or entities will be joint and several.
SECTION 10.18 TERMINATION; REINSTATEMENT. Except as otherwise provided
in Section 10.9 and the other indemnification obligations and waivers under the
Loan Documents, this Agreement will terminate upon satisfaction of the following
events: (a) payment to the Lenders in full (unconditionally and indefeasibly) of
all monetary Obligations due hereunder and under the Loan Documents, and (b) the
termination of the Lenders' commitment to lend under the Revolving Credit Loan
and the Equipment Loan; provided, however, that this Agreement and the other
Loan Documents will, to the maximum extent not prohibited by applicable law, be
reinstated and the Obligations correspondingly increased (as though such
payment(s) had not been made) if at any time any amount received by the Lenders
in respect of any Obligations is rescinded or must otherwise be restored,
refunded or returned by the Lenders to the Borrower or any other person or
entity (i) upon or as a result of the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or (ii) upon or as a result of the
appointment of any receiver, intervenor, conservator, trustee or similar
official for the Borrower or for any substantial part of the assets of the
Borrower.
SECTION 10.19 GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
COMMONWEALTH OF PENNSYLVANIA, WITHOUT REGARD TO THE PRINCIPLES THEREOF REGARDING
CONFLICT OF LAWS, EXCEPTING APPLICABLE FEDERAL LAW AND EXCEPT ONLY TO THE EXTENT
PRECLUDED BY THE MANDATORY APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
SECTION 10.20 FORUM. THE PARTIES HERETO AGREE THAT ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OTHER LOAN
DOCUMENTS TO WHICH THE BORROWER IS A PARTY MAY
46
BE COMMENCED IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA OR
IN XXX XXXXXXXX XXXXX XX XXX XXXXXX XXXXXX FOR THE WESTERN DISTRICT OF
PENNSYLVANIA, AND THE PARTIES HERETO AGREE THAT A SUMMONS AND COMPLAINT
COMMENCING AN ACTION OR PROCEEDING IN EITHER OF SUCH COURTS SHALL BE PROPERLY
SERVED AND SHALL CONFER PERSONAL JURISDICTION IF SERVED PERSONALLY OR BY
CERTIFIED MAIL TO THE PARTIES AT THEIR ADDRESSES SET FORTH IN SECTION 10.6, OR
AS OTHERWISE PROVIDED UNDER THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA.
FURTHER, THE BORROWER HEREBY SPECIFICALLY CONSENTS TO THE PERSONAL JURISDICTION
OF THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA AND THE DISTRICT
COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF PENNSYLVANIA AND WAIVES
AND HEREBY ACKNOWLEDGES THAT IT IS ESTOPPED FROM RAISING ANY OBJECTION BASED ON
FORUM NON CONVENIENS, ANY CLAIM THAT EITHER SUCH COURT LACKS PROPER VENUE OR ANY
OBJECTION THAT EITHER SUCH COURT LACKS PERSONAL JURISDICTION OVER THE BORROWER
SO AS TO PROHIBIT EITHER SUCH COURT FROM ADJUDICATING ANY ISSUES RAISED IN A
COMPLAINT FILED WITH EITHER SUCH COURT AGAINST THE BORROWER BY THE
ADMINISTRATIVE AGENT, THE LENDERS OR THE ISSUING BANK CONCERNING THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR PAYMENT TO THE ADMINISTRATIVE AGENT, THE LENDERS
OR THE ISSUING BANK. THE BORROWER HEREBY ACKNOWLEDGES AND AGREES THAT THE CHOICE
OF FORUM CONTAINED IN THIS SECTION 10.20 SHALL NOT BE DEEMED TO PRECLUDE THE
ENFORCEMENT OF ANY JUDGMENT OBTAINED IN ANY FORUM OR THE TAKING OF ANY ACTION
UNDER THE LOAN DOCUMENTS TO ENFORCE THE SAME IN ANY APPROPRIATE JURISDICTION.
SECTION 10.21 NON-BUSINESS DAYS. Whenever any payment under any of the
Loan Documents is due and payable on a day which is not a Business Day, except
as otherwise provided in this Agreement, such payment may be made on the next
succeeding Business Day, and such extension of time shall in each such case
shall be included in computing interest in connection with such payment. The
foregoing notwithstanding, all interest payments received by the Administrative
Agent shall be applied to the monthly, quarterly or other interest periods to
which they relate, regardless of when received by the Administrative Agent.
SECTION 10.22 INTEGRATION. This Agreement is the entire agreement among
the parties relating to this financing transaction and it supersedes all prior
understandings and agreements, whether written or oral, between the parties
hereto relating to the transactions provided for herein.
SECTION 10.23 HEADINGS. Section, Subsection and other headings used in
this Agreement are intended for convenience only and shall not affect the
meaning or construction of this Agreement.
SECTION 10.24 WAIVER OF JURY TRIAL. EACH OF THE ADMINISTRATIVE AGENT,
THE LENDERS, THE ISSUING BANK AND THE BORROWER
47
IRREVOCABLY WAIVE ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT OR ANY OF
THE OTHER LOAN DOCUMENTS, OR ANY TRANSACTION CONTEMPLATED IN ANY OF SUCH
DOCUMENTS. THE ADMINISTRATIVE AGENT, THE LENDERS, THE ISSUING BANK AND THE
BORROWER EACH ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
SECTION 10.25 ENTIRE AGREEMENT. This Agreement (including the documents
and instruments referred to herein) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
SIGNATURES; COUNTERPARTS. This Agreement may be signed in any number of
counterpart copies and by the parties hereto on separate counterparts and
delivered by telecopier, but all such copies shall constitute one and the same
instrument.
[SIGNATURE PAGES TO FOLLOW]
48
The Borrower acknowledges that it has read and understood all the
provisions of this agreement, including the waiver of jury trial, and has been
advised by counsel as necessary or appropriate.
WITNESS the due execution of this Loan Agreement as of the date first
written above.
ATTEST: VASTERA, INC.
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
------------------------------- ----------------------------------
Print Name: Xxxxx X. Xxxxxxxxx Print Name: Xxxxxx X. Xxxxxxx
----------------------- --------------------------
Title: Secretary Title: Chief Financial Officer
---------------------------- -------------------------------
PNC BANK, NATIONAL ASSOCIATION, IN
ITS CAPACITY AS THE ADMINISTRATIVE
AGENT AND THE ISSUING BANK
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Print Name: Xxxxxx X. Xxxxxxx
--------------------------
Title: Vice President and Director
-------------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Signature Page
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among the Borrower, the
Lenders party hereto, the Issuing Bank and PNC BANK, NATIONAL Association, as
the Administrative Agent, to be executed by its duly authorized officers as of
the date first above written.
Commitment: $8,818,394.64 PNC BANK, NATIONAL ASSOCIATION, IN
ITS CAPACITY AS A LENDER
Commitment Percentage: 54.04%
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
-----------------------------
Title: Vice President and Director
----------------------------
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
Signature Page
IN WITNESS WHEREOF, intending to be legally bound hereby, the
undersigned Lender has caused this Agreement by and among the Borrower, the
Lenders party hereto, the Issuing Bank and PNC BANK, NATIONAL Association, as
the Administrative Agent, to be executed by its duly authorized officers as of
the date first above written.
Commitment: $7,500,000 COMERICA BANK - CALIFORNIA, AS
A LENDER
Commitment Percentage: 45.96%
By: /s/ Xxxxxx Xxxxx
----------------------------
Name: Xxxxxx Xxxxx
--------------------------
Title: Vice President
-------------------------
Signature Page
ATTACHMENTS; SCHEDULES AND EXHIBITS:
Addendum
Schedule 5.6 Title to Property; Leases
Schedule 5.7 Litigation
Schedule 5.8 Tax Returns
Schedule 5.10 Environmental Matters
Schedule 5.11 Intellectual Property
Schedule 7.3 Guarantees
Schedule 7.4 Loans, Investments or Advances
Exhibit A Form of Revolving Credit Loan Note
Exhibit B Form of Equipment Loan Note
Exhibit C Form of Revolving Loan Advance Request
Exhibit D Form of First Equipment Loan Advance Request
Exhibit E Form of Second Equipment Loan Advance Request
Exhibit F Form of Closing Certificate
Exhibit G Form of Compliance Certificate
Exhibit H Form of Assignment and Assumption Agreement
Exhibit I Letter of Credit Rider
Exhibit J Form of Guaranty Agreement
Exhibit K Form of Guarantor Security Agreement
SCHEDULE 5.6
TITLE TO PROPERTY; LEASES
Schedule 5.6 - 1.
SCHEDULE 5.7
LITIGATION
Schedule 5.7 - 1.
SCHEDULE 5.8
TAX RETURN
Schedule 5.8 - 1.
SCHEDULE 5.10
ENVIRONMENTAL MATTERS
Schedule 5.10 - 1.
SCHEDULE 5.11
INTELLECTUAL PROPERTY
Schedule 5.11 - 1.
SCHEDULE 7.3
GUARANTEES
Schedule 7.3 - 1.
SCHEDULE 7.4
LOANS, INVESTMENTS AND ADVANCES
Schedule 7.4 - 1.
