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EXHIBIT 10.15
MICROGRAFX, INC.
REVOLVING CREDIT AGREEMENT
TABLE OF CONTENTS
1. DEFINITIONS: ..........................................................1
2. REVOLVING CREDIT FACILITY...............................................8
2.1. Commitment to Lend...........................................8
2.2. Requests for Loans...........................................8
2.3. Conversion Options...........................................9
2.3.1. Conversion to Different Loan Type.................9
2.3.2. Continuation of Loan Type.........................10
2.3.3. LIBOR Rate Loans..................................10
2.4. Interest.....................................................10
2.5. Repayments and Prepayments...................................10
3. LETTER OF CREDIT FACILITY...............................................11
3.1. Letter of Credit Commitment..................................11
3.2. Reimbursement Obligation of the Borrower.....................12
3.3. Letter of Credit Payments....................................12
3.4. Obligations Absolute.........................................12
3.5. Reliance by Issuer...........................................13
3.6. Letter of Credit Fees........................................13
4. CHANGES IN CIRCUMSTANCES, ETC...........................................13
4.1. Inability to Determine LIBOR Rate............................13
4.2. Illegality...................................................14
4.3. Change in Circumstances......................................14
4.4. Certificate..................................................14
4.5. Indemnity....................................................15
5. FEES AND PAYMENTS.......................................................15
6. REPRESENTATIONS AND WARRANTIES..........................................15
7. CONDITIONS PRECEDENT....................................................17
8. COVENANTS...............................................................18
8.1. Affirmative Covenants........................................18
8.2. Negative Covenants...........................................20
8.3. Financial Covenants..........................................21
9. EVENTS OF DEFAULT; ACCELERATION.........................................21
10. SETOFF.................................................................23
11. MISCELLANEOUS..........................................................24
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REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT (this "Agreement") is made as of April
1, 1998, by and between MICROGRAFX, INC. (the "Borrower"), a Texas corporation
having its principal place of business at 0000 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxx 00000, and BANKBOSTON, N.A. (the "Bank"), a national banking association
with its head office at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
1. DEFINITIONS:
Certain capitalized terms are defined below:
Accounts: All rights of the Borrower or any of its Subsidiaries to any
payment of money for goods sold, leased or otherwise marketed in the ordinary
course of business, whether evidenced by or under or in respect of a contract or
instrument, and to all proceeds in respect thereof.
Agreement: See preamble, which term shall include this Agreement and
the Schedules hereto, all as amended and in effect from time to time.
Bank: See preamble.
Base Accounts: Those Accounts (net of any finance charges, late
charges, credits, commissions, contras or other offsets or counterclaims) (a)
which the Borrower reasonably determines to be collectible, (b) the account
debtors in respect of which are deemed creditworthy by the Bank, are solvent,
are not affiliated with the Borrower, and purchased the goods or services at
arms' length, (c) which are not outstanding for more than thirty (30) days past
the date on which such Accounts are due, (d) that are not due from an account
debtor located in Minnesota unless the Borrower (i) has received a certificate
of authority to do business and is in good standing in such state or (ii) has
filed a notice of business activities report with the appropriate office or
agency of such state for the current year, (e) (i) in which the Bank has a valid
and perfected first-priority security interest, and (ii) over which there is no
other Lien, (f) which are in payment of fully performed and undisputed
obligations, and (g) which are payable in U.S. currency from an office within
the United States. The requirements of clauses (e)(i) and (g) shall not be
required to be met for Accounts that are with account debtors of the Borrower or
any Subsidiary which are located in Japan, Australia, the United Kingdom,
Germany, France, Denmark, Italy and the Netherlands or any other country or
location acceptable to the Bank so long as the Bank in its sole and reasonable
discretion determines such account debtors are creditworthy and such Accounts
should be included as Base Accounts.
Base Rate: The higher of (a) the annual rate of interest announced from
time to time by the Bank at its head office as the Bank's "base rate" and (b)
one-half of one percent (1/2%) above the Federal Funds Effective Rate.
Base Rate Margin: With respect to any Base Rate Loan, three fourths of
one percent (3/4%) per annum.
Borrower: See preamble.
Borrowing Base: An amount equal to sixty-five percent (65%) of the Base
Accounts.
Borrowing Base Report: A report, in form and with supporting details
satisfactory to the Bank, setting forth the Borrower's computation of the
Borrowing Base.
Business Day: Any day on which banks in Boston, Massachusetts, are open
for business generally and, in the case of LIBOR Rate Loans, also a day which is
a LIBOR Business Day.
Capitalized Leases: Leases under which the Borrower or any of its
Subsidiaries is the Lessee or obligor, the discounted, future rental payment
obligations under which are required to be capitalized on the consolidated
balance sheet of the Borrower and its Subsidiaries in accordance with GAAP.
Charter Documents: In respect of any entity, the certificate or
articles of incorporation or organization and the by-laws of such entity, or
other constitutive documents of such entity.
Closing Date: The first date on which the conditions set forth in
Section 7 have been satisfied and any Loans are to be made or any Letter of
Credit is to be issued hereunder.
Collateral: All of the property, rights and assets of the Borrower and
Domestic its Subsidiaries that are or are intended to be subject to the security
interest created by the Security Documents.
Commitment: The obligation of the Bank to make Loans to, and to issue,
extend and renew Letters of Credit for the account of, the Borrower up to an
aggregate outstanding principal amount not to exceed $5,000,000, as such amount
may be reduced from time to time or terminated hereunder.
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Consent: In respect of any person or entity, any permit, license or
exemption from, approval, consent of, registration or filing with any local,
state or federal governmental or regulatory agency or authority, required under
applicable law.
Consolidated Current Liabilities: All liabilities of the Borrower
payable on demand or maturing within one (1) year from the date as of which
current liabilities are to be determined, and such other liabilities that in
accordance with GAAP are properly classified as current liabilities; provided,
however, Consolidated Current Liabilities shall exclude deferred revenues of the
Borrower and its Subsidiaries.
Consolidated Net Income: The consolidated net income (or deficit) of
the Borrower and its Subsidiaries, after deduction of all expenses, taxes and
other proper chargers, determined in accordance with GAAP, after eliminating
therefrom all extraordinary nonrecurring items of income.
Consolidated Quick Assets: All cash, investments made in items set
forth in Section 8.2(c)(i) and (ii) hereof, and Accounts of the Borrower and its
Subsidiaries on a consolidated basis.
Consolidated Tangible Net Worth: The excess of (a) all assets of the
Borrower and its Subsidiaries on a consolidated basis determined in accordance
with GAAP, over (b) all liabilities of the Borrower and its Subsidiaries on a
consolidated basis determined in accordance with GAAP, minus (c) the sum of (i)
the book value all intangibles determined in accordance with GAAP, including
good will and intellectual property, and (ii) any write-up in the book value of
assets since the most recent audited Financials in existence on the date hereof.
Consolidated Total Liabilities: All liabilities of the Borrower and its
Subsidiaries on a consolidated basis that in accordance with GAAP are properly
classified as liabilities; provided, however, Consolidated Total Liabilities
shall exclude deferred revenues of the Borrower and its Subsidiaries.
Conversion Request: A notice given by the Borrower to the Bank of the
Borrower's election to convert or continue a Loan in accordance with Section 2.3
hereof.
Copyright Mortgages: The several Copyright Mortgage and Security
Agreements, dated after the Closing Date, made by the Borrower and its Domestic
Subsidiaries pursuant to Section 8.1(h) in favor of the Bank and in form and
substance satisfactory to the Bank.
Default: An event or act which with the giving of notice and/or the
lapse of time, would become an Event of Default.
Domestic Lending Office: Initially the office of the Bank designated as
such by notice to the Borrower; thereafter, such other office of the Bank, if
any, located within the United States that will be making or maintaining Base
Rate Loans.
Domestic Subsidiaries: Any Subsidiary which is not a Foreign
Subsidiary.
Drawdown Date: In respect of any Loan, the date on which such Loan is
made to the Borrower.
Environmental Laws: All laws pertaining to environmental matters,
including without limitation, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water
Act, the Federal Clean Air Act, the Toxic Substances Control Act, in each case
as amended, and all rules, regulations, judgments, decrees, orders and licenses
arising under all such laws.
ERISA: The Employee Retirement Income Security Act of 1974, as amended,
and all rules, regulations, judgments, decrees, and orders arising thereunder.
Eurocurrency Reserve Rate: For any day with respect to a LIBOR Rate
Loan, the maximum rate (expressed as a decimal) at which any lender subject
thereto would be required to maintain reserves under Regulation D of the Board
of Governors of the Federal Reserve System (or any successor or similar
regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding. The Eurocurrency Reserve Rate shall be adjusted automatically on
and as of the effective date of any change in the Eurocurrency Reserve Rate.
Event of Default: Any of the events listed in Section 8 hereof.
Federal Funds Effective Rate: For any day, the rate per annum equal to
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding 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 of the
quotations for such day on such transactions received by the Bank from three
funds brokers of recognized standing selected by the Bank.
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Financials: In respect of any period, the consolidated balance sheet of
the Borrower and its Subsidiaries as at the end of such period, and the related
statement of income and consolidated statement of cash flow for such period,
each setting forth in comparative form the figures for the previous comparable
fiscal period, all in reasonable detail and prepared in accordance with GAAP.
Foreign Subsidiary: Any Subsidiary which conducts substantially all of
its business in countries other than the United States of America and that is
organized under the laws of a jurisdiction other than the United States of
America and the States (or the District of Columbia) thereof.
GAAP: Generally accepted accounting principles consistent with those
adopted by the Financial Accounting Standards Board and its predecessor, (a)
generally, as in effect from time to time, and (b) for purposes of determining
compliance by the Borrower with its financial covenants set forth herein, as in
effect for the fiscal year therein reported in the most recent Financials
submitted to the Bank prior to execution of this Agreement.
Guarantors: Each Domestic Subsidiary of the Borrower, whether now
existing or hereafter created or acquired.
Guaranty: The Guaranty, dated or to be dated on or prior to the Closing
Date, made by each of the Guarantors in favor of the Bank pursuant to which each
Guarantor guaranties to the Bank the payment and performance of the Obligations
and in form and substance satisfactory to the Bank.
Indebtedness: In respect of any entity, all obligations, contingent and
otherwise, that in accordance with GAAP should be classified as liabilities,
including without limitation (a) all debt obligations, (b) all liabilities
secured by Liens, (c) all guarantees and (d) all liabilities in respect of
bankers' acceptances or letters of credit.
Interest Payment Date: (a) As to any Base Rate Loan, the last day of
the calendar month which includes the Drawdown Date thereof; and (b) as to any
LIBOR Rate Loan in respect of which the Interest Period is 90 days or less, the
last day of such Interest Period.
Interest Period: With respect to each Loan, (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the Borrower in a Loan Request
(i) for any Base Rate Loan, the last day of the calendar month; and (ii) for any
LIBOR Rate Loan, 30, 60 or 90 days; and (b) thereafter, each period commencing
on the last day of the immediately preceding Interest Period applicable to such
Loan and ending on the last day of one of the periods set forth above, as
selected by the Borrower in a Conversion Request; provided that all of the
foregoing provisions relating to Interest Periods are subject to the following:
(a) if any Interest Period with respect to a LIBOR Rate Loan
would otherwise end on a day that is not a LIBOR Business Day, that
Interest Period shall be extended to the next succeeding LIBOR Business
Day unless the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest Period
shall end on the immediately preceding LIBOR Business Day;
(b) if the Borrower shall fail to give notice as provided in
Section 2.3, as the case may be, the Borrower shall be deemed to have
requested a conversion of the affected LIBOR Rate Loan to a Base Rate
Loan and the continuance of all Base Rate Loans as Base Rate Loans on
the last day of the then current Interest Period with respect thereto;
(c) any Interest Period that begins on the last LIBOR Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last LIBOR Business Day of a calendar month;
and
(d) any Interest Period relating to any LIBOR Rate Loan that
would otherwise extend beyond the Maturity Date shall end on the
Maturity Date.
Letter of Credit: See Section 3.1(a).
Letter of Credit Application: See Section 3.1(a).
Letter of Credit Fee: See Section 3.6.
LIBOR Business Day: Any day on which commercial banks are open for
international business (including dealings in U.S. dollar deposits) in London.
LIBOR Lending Office: Initially, the office of the Bank designated as
such by notice to the Borrower; thereafter, such other office of the Bank, if
any, that shall be making or maintaining LIBOR Rate Loans.
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LIBOR Rate: For any Interest Period with respect to a LIBOR Rate Loan,
the rate of interest equal to (a) the rate determined by the Bank at which U.S.
dollar deposits for such Interest Period are offered based on information
presented on Telerate Page 3750 as of 11:00 a.m. London time on the second LIBOR
Business Day prior to the first day of such Interest Period, divided by (b) a
number equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable.
LIBOR Rate Loans: Loans bearing interest calculated by reference to the
LIBOR Rate.
LIBOR Rate Margin: With respect to any LIBOR Rate Loan, two and three
quarters percent (2 3/4%) per annum.
Liens: Any encumbrance, mortgage, pledge, hypothecation, charge,
restriction or other security interest of any kind securing any obligation of
any entity or person.
Loan: Any loan made or to be made to the Borrower pursuant to Section 2
hereof.
Loan Documents: This Agreement, the Note, the Letter of Credit
Applications and the Security Documents, in each case as from time to time
amended or supplemented.
Loan Request: See Section 2.1.
Materially Adverse Effect: Any materially adverse effect on the
financial condition or business operations of the Borrower or the Borrower and
its Subsidiaries, taken as a whole, or material impairment of the ability of the
Borrower or any of its Subsidiaries to perform its obligations hereunder or
under any of the other Loan Documents.
Maturity Date: March 30, 1999 or such earlier date on which all Loans
may become due and payable pursuant to the terms hereof.
Maximum Drawing Amount: The maximum aggregate amount from time to time
that beneficiaries may draw under outstanding Letters of Credit, as such
aggregate amount may be reduced from time to time pursuant to the terms of the
Letters of Credit.
Note. See Section 2.1.
Obligations: All indebtedness, obligations and liabilities of the
Borrower and its Subsidiaries to the Bank, existing on the date of this
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, arising or
incurred under this Agreement or any other Loan Document or in respect of any of
the Loans or Letters of Credit or the Note or other instruments at any time
evidencing any thereof.
Patent Assignments: The several Patent Assignments, dated after the
Closing Date, made by the Borrower and its Domestic Subsidiaries pursuant to
Section 8.1(h) in favor of the Bank and in form and substance satisfactory to
the Bank.
Reimbursement Obligation: The Borrower's obligation to reimburse the
Bank on account of any drawing under any Letter of Credit as provided in Section
3.2.
Requirement of Law: In respect of any person or entity, any law,
treaty, rule, regulation or determination of an arbitrator, court, or other
governmental authority, in each case applicable to or binding upon such person
or entity or affecting any of its property.
Security Agreements: The several Security Agreements, dated or to be
dated on or prior to the Closing Date, between the Borrower and its Domestic
Subsidiaries and the Bank and in form and substance satisfactory to the Bank.
Security Documents: The Security Agreements, the Guaranty, the
Trademark Assignments, the Patent Assignments, the Copyright Mortgages, the
Stock Pledge Agreements and all other instruments and documents, including
without limitation Uniform Commercial Code financing statements, required to be
executed or delivered pursuant to any Security Document.
Stock Pledge Agreements: The several Stock Pledge Agreements, dated or
to be dated on or prior to the Closing Date, between the Borrower and the
applicable Subsidiaries and the Bank and in form and substance satisfactory to
the Bank.
Subsidiary: In respect of the Borrower, any business entity of which
the Borrower at any time owns or controls directly or indirectly more than fifty
percent (50%) of the outstanding shares of stock having voting power, regardless
of whether such right to vote depends upon the occurrence of a contingency.
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Total Outstandings: At any time of reference thereto, the sum of (a)
Loans outstanding at such time, (b) the Maximum Drawing Amount at such time and
(c) any Unpaid Reimbursement Obligations at such time.
Trademark Assignments: The several Trademark Assignments, dated after
the Closing Date, made by the Borrower and its Domestic Subsidiaries pursuant to
Section 8.1(h) in favor of the Bank and in form and substance satisfactory to
the Bank.
Uniform Customs: With respect to any Letter of Credit, the Uniform
Customs and Practice for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500 or any successor version thereto adopted
by the Bank in the ordinary course of its business as a letter of credit issuer
and in effect at the time of issuance of such Letter of Credit.
Unpaid Reimbursement Obligation: Any Reimbursement Obligation for which
the Borrower does not reimburse the Bank on the date specified in, and in
accordance with, Section 3.2(a).
2. REVOLVING CREDIT FACILITY.
2.1. COMMITMENT TO LEND. Upon the terms and subject to the conditions of this
Agreement, the Bank agrees to lend to the Borrower such sums that the Borrower
may request, from the date hereof until but not including the Maturity Date,
provided that the sum of the outstanding principal amount of all Loans (after
giving effect to all amounts requested) shall not exceed the lesser of (a) the
Commitment minus the sum of the Maximum Drawing Amount and all Unpaid
Reimbursement Obligations and (b) the Borrowing Base. Loans shall be in the
minimum aggregate amount of $500,000 or an integral multiple of $100,000 in
excess thereof.
2.2. REQUESTS FOR LOANS.
(a) The Borrower shall give to the Bank written notice in form
and substance satisfactory to the Bank (or telephonic notice confirmed
in writing in form and substance satisfactory to the Bank) of each Loan
requested hereunder (a "Loan Request") (i) no later than 10:00 a.m.,
Boston time, on the proposed Drawdown Date of any Base Rate Loan and
(ii) no less than three (3) LIBOR Business Days prior to the proposed
Drawdown Date of any LIBOR Rate Loan. Each such notice shall specify
(A) the principal amount of the Loan requested, (B) the proposed
Drawdown Date of such Loan, (C) the Interest Period for such Loan and
(D) whether such Loan shall be a Base Rate Loan or a LIBOR Rate Loan.
Each such notice shall be irrevocable and binding on the Borrower and
shall obligate the Borrower to accept the Loan requested from the Bank
on the proposed Drawdown Date. Each Request shall be in a minimum
aggregate amount of $500,000 or an integral multiple of $100,000 in
excess thereof.
(b) Notwithstanding the notice requirements set forth in
Section 2.2(a), Loans may be made from time to time in the following
manner: the Bank may make Loans to the Borrower by entry of credits to
the Borrower's controlled disbursement account (the "Disbursement
Account") with the Bank to cover checks or other charges which the
Borrower has drawn or made against such Disbursement Account. The
Borrower hereby requests and authorizes the Bank to make from time to
time such Loans by means of appropriate entries of such credits
sufficient to cover checks and other charges then presented. The
Borrower and the Bank may also agree to effect such other controlled
disbursement arrangements as may be mutually satisfactory. The Borrower
acknowledges and agrees that the making of such Loans in accordance
with this Section 2.2(b) shall, in each case, be subject in all
respects to provisions of this Agreement as if they were Loans covered
by a Loan Request including, without limitation, the limitations set
forth in Section 2.1 and the requirement that the applicable provisions
of Section 7 be satisfied. All actions taken by the Bank pursuant to
the provisions of this Section 2.2(b) shall be conclusive and binding
on the Borrower.
(c) Notwithstanding the notice requirement set forth above in
Section 2.2(a), the Bank agrees to make Loans to the Borrower
sufficient to pay to the Bank any Unpaid Reimbursement Obligations on
the date on which such Reimbursement Obligations become Unpaid
Reimbursement Obligations. The Borrower hereby requests and authorizes
the Bank to make from time to time such Loans by means of paying Unpaid
Reimbursement Obligations. The Borrower acknowledges and agrees that
the making of such Loans shall, in each case, be subject in all
respects to the provisions of this Agreement, including, without
limitation, the limitations set forth in Section 2.1 and the
requirements of the applicable conditions in Section 7. All actions
taken by the Bank pursuant to the provisions of this Section 2.2(c)
shall be conclusive and binding on the Borrower.
(d) The obligation of the Borrower to repay to the Bank the
principal of the Loans and interest accrued thereon shall be evidenced
by a promissory note (the "Note") in the maximum aggregate principal
amount of $5,000,000 executed and delivered by the Borrower and payable
to the order of the Bank, in form and substance satisfactory to the
Bank.
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2.3. CONVERSION OPTIONS.
2.3.1. CONVERSION TO DIFFERENT LOAN TYPE. The Borrower may elect from time
to time to convert any outstanding Loan from a Base Rate Loan to a
LIBOR Rate Loan or from a LIBOR Rate Loan to a Base Rate Loan, provided
that (a) with respect to any such conversion of a LIBOR Rate Loan to a
Base Rate Loan, the Borrower shall give the Bank at least three (3)
Business Days prior written notice of such election; (b) with respect
to any such conversion of a LIBOR Rate Loan into a Base Rate Loan, such
conversion shall only be made on the last day of the Interest Period
with respect thereto; (c) with respect to any such conversion of a Base
Rate Loan to a LIBOR Rate Loan, the Borrower shall give the Bank at
least three (3) LIBOR Business Days prior written notice of such
election and (d) no Loan may be converted into a LIBOR Rate Loan when
any Default or Event of Default has occurred and is continuing. On the
date on which such conversion is being made the Bank shall take such
action as is necessary to transfer such Loans to its Domestic Lending
Office or its LIBOR Lending Office, as the case may be. All or any part
of outstanding Loans may be converted as provided herein, provided that
partial conversions shall be in an aggregate principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each
Conversion Request relating to the conversion of a Loan to a LIBOR Rate
Loan shall be irrevocable by the Borrower.
2.3.2. CONTINUATION OF LOAN TYPE. Any Base Rate Loan or LIBOR Rate Loan may
be continued as such upon the expiration of an Interest Period with
respect thereto by compliance by the Borrower with the notice
provisions contained in Section 2.3.1; provided that no LIBOR Rate Loan
may be continued as such when any Default or Event of Default has
occurred and is continuing, but shall be automatically converted to a
Base Rate Loan on the last day of the first Interest Period relating
thereto ending during the continuance of any Default or Event of
Default of which the officers of the Bank active upon the Borrower's
account have actual knowledge. In the event that the Borrower fails to
provide any such notice with respect to the continuation of any LIBOR
Rate Loan as such, then such LIBOR Rate Loan shall be automatically
converted to a Base Rate Loan on the last day of the first Interest
Period relating thereto.
2.3.3. LIBOR RATE LOANS. Any conversion to or from LIBOR Rate Loans shall
be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, (a) the aggregate principal amount of all
LIBOR Rate Loans having the same Interest Period shall not be less than
$500,000 or a whole multiple of $100,000 in excess thereof, and (b)
there shall not be more than six (6) outstanding Loans which are LIBOR
Rate Loans at any time.
2.4. INTEREST. So long as no Event of Default is continuing, (a) each Base Rate
Loan shall bear interest for the period commencing with the Drawdown Date
thereof and ending on the last day of the Interest Period with respect thereto
at a rate per annum equal to the sum of (i) the Base Rate, and (ii) the Base
Rate Margin, and (b) each LIBOR Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at a rate per annum equal to the sum of (i)
the LIBOR Rate, and (ii) the LIBOR Rate Margin. While an Event of Default is
continuing, amounts payable under any of the Loan Documents shall bear interest
(compounded monthly and payable on demand in respect of overdue amounts) at a
rate per annum which is equal to the sum of (a) the Base Rate, and (b) three
percent (3%) until such amount is paid in full or (as the case may be) such
Event of Default has been cured or waived in writing by the Bank (and such
amounts shall bear interest at the rate specified herein both prior to any
bankruptcy judgment as well as after any such judgment).
2.5. REPAYMENTS AND PREPAYMENTS. The Borrower hereby agrees to pay the Bank on
the Maturity Date the entire unpaid principal of and interest on all Loans. The
Borrower may elect to prepay the outstanding principal of all or any part of any
Loan, without premium or penalty, provided that the full or partial prepayment
of the outstanding amount of any LIBOR Rate Loans pursuant to this Section 2.5
may be made only on the last day of the Interest Period relating thereto. The
Borrower shall give the Bank no later than 10:00 a.m. Boston time, at least
three (3) LIBOR Business Days prior telephonic notice (confirmed in writing), of
any proposed prepayment pursuant to this Section 2.5 of any LIBOR Rate Loan; and
on the date of such prepayment pursuant to this Section 2.5 of any Base Rate
Loan, in each case specifying the proposed date of such prepayment and the
amount to be prepaid. The Borrower shall be entitled to reborrow before the
Maturity Date such amounts, upon the terms and subject to the conditions of this
Agreement. Each repayment or prepayment of principal of any Loan shall be
accompanied by payment of the unpaid interest accrued to such date on the
principal being repaid or prepaid. If at any time the Total Outstandings shall
exceed the lesser of (a) the Commitment and (b) the Borrowing Base, the Borrower
shall immediately pay the amount of such excess to the Bank for application to
the Loans or, if no Loans are outstanding, to be held by the Bank as cash
collateral to secure the payment of all Reimbursement Obligations up to the
Maximum Drawing Amount. The Borrower may elect to reduce or terminate the
Commitment by a minimum principal amount of $100,000 or an integral multiple
thereof, upon written notice to the Bank given by 10:00 a.m. Boston time at
least two (2) Business Days prior to the date of such reduction or termination.
The Borrower shall not be entitled to reinstate the Commitment following such
reduction or termination.
3. LETTER OF CREDIT FACILITY.
3.1. LETTER OF CREDIT COMMITMENT.
(a) Subject to the terms and conditions hereof and the
execution and delivery by the Borrower of a letter of credit
application on the Bank's customary form (a "Letter of Credit
Application"), the Bank, in reliance upon the representations and
warranties of the Borrower
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contained herein, agrees to issue, extend and renew from time to time
from the date hereof until but not including the date which is fourteen
(14) days prior to the then scheduled Maturity Date, for the account of
the Borrower, standby and documentary letters of credit (each a "Letter
of Credit"), in such form as may be requested by the Borrower and
agreed to by the Bank; provided, however, that, after giving effect to
such request, (i) the sum of the aggregate Maximum Drawing Amount and
all Unpaid Reimbursement Obligations shall not exceed $1,000,000 at any
one time, and (ii) the sum of the principal amount of Total
Outstandings shall not exceed the lesser of (A) the Commitment and (B)
the Borrowing Base. No Letter of Credit shall be issued, extended or
renewed with an expiration date occurring after the then scheduled
Maturity Date;
(b) Each Letter of Credit Application shall be completed to
the satisfaction of the Bank. In the event that any provision of any
Letter of Credit Application shall be inconsistent with any provision
of this Agreement, then the provisions of this Agreement shall, to the
extent of any such inconsistency, govern;
(c) Each Letter of Credit issued, extended or renewed
hereunder shall, among other things, provide for the payment of sight
drafts for honor thereunder when presented in accordance with the terms
thereof and when accompanied by the documents described therein. Each
Letter of Credit so issued, extended or renewed shall be subject to the
Uniform Customs.
3.2. REIMBURSEMENT OBLIGATION OF THE BORROWER. In order to induce the Bank to
issue, extend and renew each Letter of Credit, the Borrower hereby agrees to
reimburse the Bank for or to pay to the Bank with respect to each Letter of
Credit issued, extended or renewed by the Bank hereunder,
(a) except as otherwise expressly provided in Section 3.2(b),
on each date that any draft presented under such Letter of Credit is
honored by the Bank, or the Bank otherwise makes a payment with respect
thereto, (i) the amount paid by the Bank under or with respect to such
Letter of Credit, and (ii) the amount of any taxes, fees, charges or
other costs and expenses whatsoever incurred by the Bank in connection
with any payment made by the Bank under, or with respect to, such
Letter of Credit;
(b) upon the termination of the Commitment, or the
acceleration of the Reimbursement Obligations with respect to all
Letters of Credit in accordance with Section 8 an amount equal to the
Maximum Drawing Amount, which amount shall be held by the Bank as cash
collateral for all Reimbursement Obligations.
Unless funded by a Loan pursuant to Section 2.1(c)(i), each such
payment shall be made to the Bank at the Bank's head office at 000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 in immediately available funds. Interest on
any and all amounts remaining unpaid by the Borrower under this Section 3.2 and
not required to be funded by a Loan pursuant to Section 2.1(c)(i) at any time
from the date such amounts become due and payable (whether as stated in this
Section 3.2, by acceleration or otherwise) until payment in full (and such
amounts shall bear interest at the rate specified herein both prior to any
bankruptcy judgment as well as after any such judgment) shall be payable to the
Bank on demand at the rate specified in Section 2.4.
3.3. LETTER OF CREDIT PAYMENTS. If any draft shall be presented or other demand
for payment shall be made under any Letter of Credit, the Bank shall notify the
Borrower of the date and amount of the draft presented or demand for payment and
of the date and time when it expects to pay such draft or honor such demand for
payment. The responsibility of the Bank to the Borrower shall be only to
determine that the documents (including each draft) delivered under each Letter
of Credit in connection with such presentment shall be in conformity in all
material respects with such Letter of Credit.
3.4. OBLIGATIONS ABSOLUTE. The Borrower's obligations under this Section 3 shall
be absolute and unconditional under any and all circumstances and irrespective
of the occurrence of any Default or Event of Default or any condition precedent
whatsoever or any setoff, counterclaim or defense to payment which the Borrower
may have or have had against the Bank or any beneficiary of a Letter of Credit.
The Borrower further agrees with the Bank that the Bank shall not be responsible
for, and the Reimbursement Obligations shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even if such documents should in fact prove to be in any or all respects
invalid, fraudulent or forged, or any dispute between or among the Borrower, the
beneficiary of any Letter of Credit or any financing institution or other party
to which any Letter of Credit may be transferred or any claims or defenses
whatsoever of the Borrower against the beneficiary of any Letter of Credit or
any such transferee. The Bank shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit unless
caused by the Bank's gross negligence or willful misconduct. The Borrower agrees
that any action taken or omitted by the Bank under or in connection with each
letter of Credit and the related drafts and documents, if done in good faith,
shall be binding upon the Borrower and shall not result in any liability on the
part of the Bank to the Borrower.
3.5. RELIANCE BY ISSUER. To the extent not inconsistent with Section 3.4, the
Bank shall be entitled to rely, and shall be fully protected in relying upon,
any Letter of Credit, draft, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document believed by it to be genuine and correct and
to have been signed, sent or made by the proper
9
person or entity and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Bank.
3.6. LETTER OF CREDIT FEES. The Borrower shall, on the date of issuance or of
any extension or renewal of any Letter of Credit and at such other time or times
as such charges are customarily made by the Bank, pay a fee (in each case a
"Letter of Credit Fee") to the Bank (a) in respect of each Standby Letter of
Credit an amount equal to two percent (2%) per annum of the face amount of such
Letter of Credit, plus the Bank's customary issuance, amendment and other
administrative processing fees and (b) in respect of each documentary Letter of
Credit an amount equal to one-half of one percent (1/2%) per annum of the face
amount of such documentary Letter of Credit, plus the Bank's customary issuance,
amendment, time negotiation fee and other administrative processing fees.
4. CHANGES IN CIRCUMSTANCES, ETC.
4.1. INABILITY TO DETERMINE LIBOR RATE. In the event, prior to the commencement
of any Interest Period relating to any LIBOR Rate Loan, the Bank shall determine
that adequate and reasonable methods do not exist for ascertaining the LIBOR
Rate that would otherwise determine the rate of interest to be applicable to any
LIBOR Rate Loan during any Interest Period, the Bank shall forthwith give notice
of such determination (which shall be conclusive and binding on the Borrower) to
the Borrower. In such event (a) any Loan Request or Conversion Request with
respect to any LIBOR Rate Loan shall be automatically withdrawn and shall be
deemed a request for a Base Rate Loan, (b) each LIBOR Rate Loan will
automatically, on the last day of the then current Interest Period thereof,
become a Base Rate Loan, and (c) the obligation of the Bank to make LIBOR Rate
Loans shall be suspended until the Bank determines that the circumstances giving
rise to such suspension no longer exist, whereupon the Bank shall so notify the
Borrower.
4.2. ILLEGALITY. Notwithstanding any other provisions herein, if any present or
future law, regulation, treaty or directive or in the interpretation or
application thereof shall make it unlawful for the Bank to make or maintain
LIBOR Rate Loans, the Bank shall forthwith give notice of such circumstances to
the Borrower and thereupon (a) the commitment of the Bank to make LIBOR Rate
Loans or convert Base Rate Loans to LIBOR Rate Loans shall forthwith be
suspended and (b) the Loans then outstanding as LIBOR Rate Loans, if any, shall
be converted automatically to Base Rate Loans on the last day of each Interest
Period applicable to such LIBOR Rate Loans or within such earlier period as may
be required by law. The Borrower hereby agrees promptly to pay the Bank, upon
demand by the Bank, any additional amounts necessary to compensate the Bank for
any costs incurred by the Bank in making any conversion in accordance with this
Section 4.2, including any interest or fees payable by the Bank to lenders of
funds obtained by it in order to make or maintain its LIBOR Rate Loans
hereunder.
4.3. CHANGE IN CIRCUMSTANCES. If, on or after the date hereof the Bank
determines that (a) the adoption of, or any change in, any applicable law, rule,
regulation or guideline or the interpretation or administration thereof (whether
or not having the force of law), or (b) compliance by the Bank or its parent
holding company with any guideline, request or directive (whether or not having
the force of law), (i) has the effect of reducing the return on the Bank's or
such holding company's capital as a consequence of the Commitment, the Loans or
any Letters of Credit to a level below that which the Bank or such holding
company could have achieved but for such adoption, change or compliance by any
amount deemed by the Bank to be material, or (ii) shall subject the Bank to any
tax, duty or other charge with respect to any LIBOR Rate Loan or any Note, or
shall change the basis of taxation of payments to the Bank of the principal of
or interest on, LIBOR Rate Loans or in respect of any other amounts due under
this Agreement in respect of LIBOR Rate Loans (other than with respect to taxes
based upon the Bank's net income), or (iii) shall impose, modify or deem
applicable any reserve, special deposit or similar requirement (including,
without limitation, any imposed by the Board of Governors of the Federal Reserve
System, but excluding with respect to any LIBOR Rate Loan any such requirement
included in an applicable Eurocurrency Reserve Rate) against assets of, deposits
with or for the account of, or credit extended by, the Bank, or shall impose on
the Bank or the London interbank market any other condition affecting LIBOR Rate
Loans or the Notes, and the result of any of the foregoing is to increase the
cost to the Bank of making or maintaining any LIBOR Rate Loan, or to reduce the
amount of any sum received or receivable by the Bank under this Agreement or
under any Note with respect to any Loan or any Letter of Credit, by an amount
reasonably deemed by the Bank to be material, then, upon demand by the Bank, the
Borrower agrees to pay to the Bank such additional amount or amounts as will
compensate the Bank for such increased cost or reduction.
4.4. CERTIFICATE. A certificate setting forth any additional amounts payable
pursuant to Section 4.3 and a brief explanation of such amounts which are due,
submitted by the Bank to the Borrower, shall be conclusive, absent manifest
error, that such amounts are due and owing.
4.5. INDEMNITY. The Borrower agrees to indemnify and hold the Bank harmless from
and against any loss, cost or expense (including loss of anticipated profits)
the Bank may sustain as a consequence of the Borrower's failure to pay the
principal amount of any LIBOR Rate Loan as and when due or the payment of any
LIBOR Rate Loan on a date that is not the last day of the Interest Period
applicable thereto, including interest or fees payable by the Bank to lenders of
funds obtained by it in order to maintain any such Loans.
10
5. FEES AND PAYMENTS.
Contemporaneously with execution and delivery of this Agreement, the
Borrower shall pay to the Bank a closing fee in the amount of $37,500. The
Borrower shall pay to the Bank, on the first day of each calendar quarter
hereafter, and upon the Maturity Date or the date upon which the Commitment is
no longer in effect, a commitment fee calculated at a rate per annum which is
equal to (a) until the earlier to occur of (i) the first Drawdown Date
hereunder; and (ii) the Maximum Drawing Amount on all issued and outstanding
Letters of Credit exceeds $1,000,000 in the aggregate, one quarter of one
percent (1/4%) of the average daily difference by which the Commitment amount
exceeds the aggregate sum of the outstanding Loans, the Maximum Drawing Amount
and all Unpaid Reimbursement Obligations during the preceding calendar quarter
or portion thereof; and (b) thereafter, three-eighths of one percent (3/8%) of
the average daily difference by which the Commitment amount exceeds the
aggregate sum of the outstanding Loans, the Maximum Drawing Amount and all
Unpaid Reimbursement Obligations during the preceding calendar quarter or
portion thereof. All payments to be made by the Borrower hereunder or under any
of the other Loan Documents shall be made in U.S. dollars in immediately
available funds at the Bank's head office at 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, without set-off or counterclaim and without any withholding
or deduction whatsoever. The Bank shall be entitled to charge any account of the
Borrower with the Bank for any sum due and payable by the Borrower to the Bank
hereunder or under any of the other Loan Documents. If any payment hereunder is
required to be made on a day which is not a Business Day, it shall be paid on
the immediately succeeding Business Day, with interest and any applicable fees
adjusted accordingly. All computations of interest or of the commitment fee or
any Letter of Credit Fees payable hereunder shall be made by the Bank on the
basis of actual days elapsed and on a 360-day year.
6. REPRESENTATIONS AND WARRANTIES.
The Borrower represents and warrants to the Bank on the date hereof, on
the date of any Loan Request, on the date of each request for a Letter of
Credit, on each Drawdown Date and on the date on which each Letter of Credit is
issued, extended or renewed that:
(a) the Borrower and each of its Subsidiaries is duly
organized, validly existing, and in good standing under the laws of its
jurisdiction of incorporation and is duly qualified and in good
standing in every other jurisdiction where it is doing business, and
the execution, delivery and performance by the Borrower and each of its
Subsidiaries of the Loan Documents to which it is a party (i) are
within its corporate authority, (ii) have been duly authorized, (iii)
do not conflict with or contravene its Charter Documents;
(b) upon execution and delivery thereof, each Loan Document
shall constitute the legal, valid and binding obligation of the
Borrower and its Subsidiaries party thereto, enforceable in accordance
with its terms;
(c) the Borrower and each of its Subsidiaries has good and
marketable title to all its material properties, subject only to Liens
permitted hereunder, and possesses all assets, including intellectual
properties, franchises and Consents, adequate for the conduct of its
business as now conducted, without known conflict with any rights of
others. The Borrower maintains insurance with financially responsible
insurers, copies of the policies for which have been previously
delivered to the Bank, covering such risks and in such amounts and with
such deductibles as are customary in the Borrower's business and are
adequate;
(d) the Borrower has provided to the Bank its audited
Financials as at June 30, 1997 and for the fiscal period then ended,
and such Financials are complete and correct and fairly present the
position of the Borrower and its Subsidiaries as at such date and for
such period in accordance with GAAP consistently applied. The Borrower
has also provided to the Bank its forecast of the operations of the
Borrower and its Subsidiaries for the period from July 1, 1997 through
June 30, 1998, and such forecast has been prepared in good faith based
upon reasonable assumptions;
(e) since June 30, 1997, there has been no materially adverse
change of any kind in the Borrower or any of its Subsidiaries which
would have a Materially Adverse Effect;
(f) there are no legal or other proceedings or investigations
pending or threatened against the Borrower or any of its Subsidiaries
before any court, tribunal or regulatory authority which would, if
adversely determined, alone or together, have a Materially Adverse
Effect;
(g) the execution, delivery, performance of its obligations,
and exercise of its rights under the Loan Documents by the Borrower and
each of its Subsidiaries, including, in the case of the Borrower,
borrowing under this Agreement and the obtaining of Letters of Credit
(i) do not require any Consents; and (ii) are not and will not be in
conflict with or prohibited or prevented by (A) any Requirement of Law,
or (B) any Charter Document, corporate minute or resolution,
instrument, agreement or provision thereof, in each case binding on it
or affecting its property;
(h) neither the Borrower nor any Subsidiary is in violation of
(i) any Charter Document, corporate minute or resolution, (ii) any
instrument or agreement, in each case binding on it or
11
affecting its property, or (iii) any Requirement of Law, in a manner
which could have a Materially Adverse Effect, including, without
limitation, all applicable federal and state tax laws, ERISA and
Environmental Laws;
(i) upon execution and delivery of the Security Documents and
the filing of documents thereby required, the Bank shall have
first-priority perfected Liens on the Collateral, subject only to Liens
permitted hereunder and entitled to priority under applicable law, with
no financing statements, chattel mortgages, real estate mortgages or
similar filings on record anywhere which conflict with such
first-priority Liens of the Bank;
(j) each Subsidiary of the Borrower and each Subsidiary of any
other Subsidiary is set forth on Schedule 6(j) attached hereto; and
(k) neither the Borrower nor any Subsidiary is a party to any
partnership or transaction in which the Borrower or such Subsidiary
owns 50% or less of the capital stock of any entity.
7. CONDITIONS PRECEDENT.
In addition to the making of the foregoing representations and
warranties and the delivery of the Loan Documents and such other documents and
the taking of such actions as the Bank may require at or prior to the time of
executing this Agreement, the obligation of the Bank to make any Loan or to
issue, renew or extend any Letter of Credit to the Borrower hereunder is subject
to the satisfaction of the following further conditions precedent:
(a) each of the representations and warranties of the Borrower
and each of its Subsidiaries to the Bank herein, in any of the other
Loan Documents or any documents, certificate or other paper or notice
in connection herewith shall be true and correct in all material
respects as of the time made or claimed to have been made;
(b) no Default or Event of Default shall be continuing;
(c) all proceedings in connection with the transactions
contemplated hereby shall be in form and substance satisfactory to the
Bank, and the Bank shall have received all information and documents as
it may have reasonably requested;
(d) no change shall have occurred in any law or regulation or
in the interpretation thereof that in the reasonable opinion of the
Bank would make it unlawful for the Bank to make such Loan or issue,
renew or extend any Letter of Credit; and
(e) the Borrower shall have delivered to the Bank (i)
certified copies of the Charter Documents for itself and each of its
Subsidiaries; (ii) evidence that all corporate action necessary for the
valid execution, delivery and performance by the Borrower and its
Subsidiaries of the Loan Documents to which each is a party has been
duly and effectively taken; (iii) an incumbency certificate signed by a
duly authorized officer of each of the Borrower and each Subsidiary
party to the Loan Documents, and giving the name and bearing the
specimen signature of each individual who shall be authorized to sign,
in the name and on behalf of the Borrower and each Subsidiary, each of
the Loan Documents and to take action on the Borrower's and such
Subsidiary's behalf under the Loan Documents, and, in the case of the
Borrower, to make loan requests, requests for Letters of Credit,
conversion requests and give notices provided for in this Agreement;
and (iv) a favorable legal opinion addressed to the Bank in form and
substance satisfactory to the Bank from counsel to the Borrower and its
Subsidiaries.
8. COVENANTS.
8.1. AFFIRMATIVE COVENANTS. The Borrower agrees that so long as there are any
Loans or Letters of Credit outstanding and until the termination of the
Commitment and the payment and satisfaction in full of all the Obligations, the
Borrower will, and where applicable will cause each of its Subsidiaries to,
comply with its obligations as set forth throughout this Agreement and to:
(a) furnish the Bank: (i) as soon as available but in any
event within ninety (90) days after the close of each fiscal year, its
audited Financials for such fiscal year, certified by the Borrower's
accountants, which must be acceptable to the Bank; (ii) as soon as
available but in any event within forty-five (45) days after the end of
each fiscal quarter its unaudited Financials for such quarter,
certified by its chief financial officer; (iii) together with the
quarterly and annual audited Financials, a certificate of the Borrower
setting forth computations demonstrating compliance with the Borrower's
financial covenants set forth herein, and certifying that no Default or
Event of Default has occurred, or if it has, the actions taken by the
Borrower with respect thereto; and (iv) to the extent the Borrower has
any Loans or Letters of Credit outstanding, within fifteen (15) days
after the end of each calendar month, (and in any event on any Drawdown
Date of any Loan or request
12
for the issuance, extension or renewal of any Letter of Credit) or at
such other time or times as the Bank may request, a Borrowing Base
report, in form and detail satisfactory to the Bank, demonstrating the
Borrowing Base as at the end of such month or other applicable date
requested;
(b) keep true and accurate books of account in accordance with
GAAP, maintain its current fiscal year and permit the Bank or its
designated representatives to inspect the Borrower's or any
Subsidiary's premises during normal business hours, to examine and be
advised as to such or other business records upon the reasonable
request of the Bank, and to permit the Bank's commercial finance
examiners to conduct periodic commercial finance examinations;
(c) (i) maintain its corporate existence, business and assets,
(ii) keep its business and assets adequately insured, (iii) maintain
its chief executive office in the United States, (iv) continue to
engage in the same lines of business, and (v) comply with all
Requirements of Law, including ERISA and Environmental Laws;
(d) notify the Bank promptly in writing of (i) the occurrence
of any Default or Event of Default, (ii) any noncompliance with ERISA
or any Environmental Law or proceeding in respect thereof which could
have a Materially Adverse Effect, (iii) any change of address, (iv) any
threatened or pending litigation or similar proceeding materially
affecting the Borrower or any such Subsidiary or any material change in
any such litigation or proceeding previously reported and (v) claims
against any assets or properties of the Borrower or such Subsidiary
encumbered in favor of the Bank;
(e) use the proceeds of the Loans solely to finance general
corporate and for working capital purposes, and use Letters of Credit
solely for other working capital purposes approved by the Bank for
Letters of Credit, and not for the carrying of "margin security" or
"margin stock" within the meaning of Regulations U and X of the Board
of Governors of the Federal Reserve System, 12 C.F.R. Parts 221 and
224;
(f) cooperate with the Bank, take such action, execute such
documents, and provide such information as the Bank may from time to
time request in order further to effect the transactions contemplated
by and the purposes of the Loan Documents, including without
limitation, the delivery at the Borrower's expense of additional
security or appraisals;
(g) simultaneously with the formation or acquisition of any
Subsidiary, (i) notify the Bank of such formation or acquisition, as
the case may be; (ii) cause such Subsidiary to execute and deliver to
the Bank a guaranty of the Obligations hereunder, which guaranty shall
be in form and substance satisfactory to the Bank; (iii) cause such
Subsidiary to execute and deliver to the Bank all relevant Security
Documents which the Bank may request to secure such Subsidiary's
obligations under its guaranty as well as the Obligations hereunder;
and (iv) execute and deliver to the Bank an updated schedule to the
Stock Pledge Agreement and deliver to the Bank the stock certificates
representing the shares of capital stock of such Subsidiary owned by
the Borrower (together with stock powers duly executed in blank); and
(h) upon the occurrence of a default or Event of Default
hereunder, execute and deliver to the Bank (and cause each of its
Domestic Subsidiaries to execute and deliver to the Bank) a Copyright
Mortgage, Trademark Assignment and Patent Assignment in form and
substance satisfactory to the Bank.
8.2. NEGATIVE COVENANTS. The Borrower agrees that so long as there are any Loans
or Letters of Credit outstanding and until the termination of the Commitment and
the payment and satisfaction in full of all the Obligations, the Borrower will
not and where applicable will not permit its Subsidiaries to:
(a) create, incur or assume any Indebtedness other than (i)
Indebtedness to the Bank, (ii) Indebtedness in respect of the
acquisition of property which does not exceed $1,000,000 in the
aggregate, (iii) current liabilities of the Borrower or any Subsidiary
not incurred through the borrowing of money or the obtaining of credit
except credit on an open account customarily extended, (iv)
Indebtedness in respect of taxes or other governmental charges
contested in good faith and by appropriate proceedings and for which
adequate reserves have been taken; (v) Indebtedness of the Borrower to
any Guarantor, or Indebtedness of any Guarantor to the Borrower so long
as such Persons remain Subsidiaries of the Borrower and a Guarantor
hereunder; and (vi) Indebtedness not included above and listed on
Schedule 8.2(a) hereto;
(b) create or incur any Liens on any of the property or assets
of the Borrower except (i) Liens securing the Obligations; (ii) Liens
securing taxes or other governmental charges not yet due; (iii)
deposits or pledges made in connection with social security
obligations; (iv) Liens of carriers, warehousemen, mechanics and
materialmen, less than 120 days old as to obligations not yet due; (v)
easements, rights-of-way, zoning restrictions and similar minor Liens
which individually and in the aggregate do not have a Materially
Adverse Effect; (vi) purchase money security interests in or
13
purchase money mortgages on real or personal property securing purchase
money Indebtedness permitted by Section 8.2(a)(ii), covering only the
property so acquired; and (vii) other Liens existing on the date hereof
and listed on Schedule 8.2(b) hereto;
(c) make any investments other than investments (i) in
marketable obligations of the United States maturing within one (1)
year; (ii) in certificates of deposit, bankers' acceptances and time
and demand deposits of United States banks having total assets in
excess of $1,000,000,000; (iii) in money market funds investing
primarily in the items described in this Section 8.2(c)(i) and (ii);
(iv) consisting of the Guaranty or investments by the Borrower in any
Guarantor or investments by any Guarantor in the Borrower; or (v) in
such other investments as the Bank may from time to time approve in
writing; provided, however, that in each such case referred to in this
Section 8.2(c), arrangements have been made to the satisfaction of the
Bank for the perfection and protection and the preservation of the
Bank's Lien therein;
(d) make any distributions on or in respect of its capital of
any nature whatsoever, other than dividends payable solely in shares of
common stock or distributions by Subsidiaries to the Borrower; or
(e) become party to a merger or sale-leaseback transaction, or
to effect any disposition of assets other than in the ordinary course,
or to purchase, lease or otherwise acquire assets other than in the
ordinary course.
8.3. FINANCIAL COVENANTS. The Borrower agrees that so long as there are any
Loans or Letters of Credit outstanding and until the termination of the
Commitment and the payment and satisfaction in full of all the Obligations, the
Borrower will not and where applicable will not permit its Subsidiaries to:
(a) make capital expenditures which in the aggregate exceed
$2,500,000 per annum;
(b) permit Consolidated Net Income to be less than (i)
($100,000) at the end of each fiscal quarter; (ii) $400,000 for the two
consecutive fiscal quarters (treated as a single accounting period)
ending March 31, 1998; (iii) $300,000 for the two consecutive fiscal
quarters (treated as a single accounting period) ending June 30, 1998;
and (iv) $400,000 for any two consecutive quarters (treated as a single
accounting period) commencing with the fiscal quarter ending September
30, 1998;
(c) permit the ratio of Consolidated Quick Assets to
Consolidated Current Liabilities to be less than 1.50:1.00 at any time;
(d) permit the ratio of Consolidated Total Liabilities to
Consolidated Tangible Net Worth to exceed 1.25:1.00 at the end of any
fiscal quarter; or
(e) permit the aggregate amount of its cash on deposit in a
cash account or readily marketable securities in a securities account
(as each are reflected on the Borrower's balance sheet) at any time to
be less than $9,500,000; provided, however, at such times as the
Borrower has demonstrated to the satisfaction of the Bank that
Consolidated Net Income for any fiscal quarter (commencing with the
fiscal quarter ending March 31, 1998) is greater than $1.00, such
amount shall be permitted to be reduced to $9,000,000, and, provided,
further, at such time as the Borrower has demonstrated to the
satisfaction of the Bank that Consolidated Net Income for the most
recent period of two consecutive fiscal quarters is greater than $1.00
(commencing with the fiscal quarter ending June 30, 1998), such amount
shall be permitted to be reduced to $0.
9. EVENTS OF DEFAULT; ACCELERATION.
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay when due and payable any
principal of the Loans when the same becomes due;
(b) the Borrower shall fail to pay interest on the Loans, any
Reimbursement Obligations not funded by a Loan pursuant to Section
2.1(c), or any other sum due under any of the Loan Documents within two
(2) Business Days after the date on which the same shall have first
become due and payable;
(c) the Borrower shall fail to perform any term, covenant or
agreement contained in Sections 8.1(a), 8.1(d) through (f), 8.2 and
8.3;
(d) the Borrower or any Subsidiary shall fail to perform any
other term, covenant or agreement contained in the Loan Documents
within fifteen (15) days after the Bank has given written notice of
such failure to the Borrower;
14
(e) any representation or warranty of the Borrower or any of
its Subsidiaries in the Loan Documents or in any certificate or notice
given in connection therewith shall have been false or misleading in
any material respect at the time made or deemed to have been made;
(f) the Borrower or any of its Subsidiaries shall be in
default (after any applicable period of grace or cure period) under any
agreement or agreements evidencing Indebtedness owing to the Bank or
any affiliates of the Bank or in excess of $500,000 in aggregate
principal amount, or shall fail to pay such Indebtedness when due, or
within any applicable period of grace;
(g) any of the Loan Documents shall cease to be in full force
and effect,
(h) the Borrower or any of its Subsidiaries (i) shall make an
assignment for the benefit of creditors, (ii) shall be adjudicated
bankrupt or insolvent, (iii) shall seek the appointment of, or be the
subject of an order appointing, a trustee, liquidator or receiver as to
all or part of its assets, (iv) shall commence, approve or consent to,
any case or proceeding under any bankruptcy, reorganization or similar
law and, in the case of an involuntary case or proceeding, such case or
proceeding is not dismissed within forty-five (45) days following the
commencement thereof, or (v) shall be the subject of an order for
relief in an involuntary case under federal bankruptcy law;
(i) the Borrower or any of its Subsidiaries shall be unable to
pay its debts as they mature;
(j) there shall remain undischarged for more than thirty (30)
days any final judgment or execution action against the Borrower or any
of its Subsidiaries that, together with other outstanding claims and
execution actions against the Borrower and its Subsidiaries exceeds
$500,000 in the aggregate;
(k) unless otherwise agreed to in writing by the Bank, the
Borrower shall cease to own legally or beneficially 100% of the capital
stock of any of the Subsidiaries; or
(l) any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended)
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 promulgated by the Securities and Exchange Commission under said
Act) of forty percent (40%) or more of the outstanding shares of common
stock of the Borrower; or, during any period of twelve consecutive
calendar months, individuals who were directors of the Borrower on the
first day of such period shall cease to constitute a majority of the
directors of the Borrower;
THEN, or at any time thereafter:
(1) In the case of any Event of Default under clause (h) or
(i), the Commitment shall automatically terminate and the Bank shall be
relieved of all further obligations to make Loans or to issue, renew or
extend any Letters of Credit, and the entire unpaid principal amount of
the Loans, all interest accrued and unpaid thereon, all Unpaid
Reimbursement Obligations, and all other amounts payable thereunder and
under the other Loan Documents shall automatically become forthwith due
and payable, without presentment, demand, protest or notice of any
kind, all of which are hereby expressly waived by the Borrower, and the
Bank may require that cash be delivered to the Bank in the amount of
the Maximum Drawing Amount to be held by the Bank as cash collateral
for all Reimbursement Obligations; and
(2) In the case of any Event of Default other than (h) and
(i), the Bank may, by written notice to the Borrower, terminate the
Commitment and/or declare the unpaid principal amount of the Loans, all
interest accrued and unpaid thereon, all Unpaid Reimbursement
Obligations, and all other amounts payable hereunder and under the
other Loan Documents to be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of
which are hereby expressly waived by the Borrower, and the Bank may
require that cash be delivered to the Bank in the amount of the Maximum
Drawing Amount to be held by the Bank as cash collateral for all
Reimbursement Obligations.
No remedy herein conferred upon the Bank is intended to be exclusive of
any other remedy and each and every remedy shall be cumulative and in addition
to every other remedy hereunder, now or hereafter existing at law or in equity
or otherwise.
10. SETOFF.
Regardless of the adequacy of any collateral for the Obligations, any
deposits or other sums credited by or due from the Bank to the Borrower may be
applied to or set off against any principal, interest and any other amounts due
from the Borrower to the Bank at any time without notice to the Borrower, or
compliance with any other procedure imposed by statute or otherwise, all of
which are hereby expressly waived by the Borrower.
15
11. MISCELLANEOUS.
The Borrower agrees to indemnify and hold harmless the Bank and its
officers, employees, affiliates, agents, and controlling persons from and
against all claims, damages, liabilities and losses of every kind arising out of
the Loan Documents, including without limitation, against those in respect of
the application of Environmental Laws to the Borrower absent the gross
negligence or willful misconduct of the Bank. The Borrower shall pay to the Bank
promptly on demand all costs and expenses (including any taxes and reasonable
legal and other professional fees and fees of its commercial finance examiner)
incurred by the Bank in connection with the preparation, negotiation, execution,
amendment, administration or enforcement of any of the Loan Documents. Any
communication to be made hereunder shall (a) be made in writing, but unless
otherwise stated, may be made by telex, facsimile transmission or letter, and
(b) be made or delivered to the address of the party receiving notice which is
identified with its signature below (unless such party has by five (5) days
written notice specified another address), and shall be deemed made or
delivered, when dispatched, left at that address, or five (5) days after being
mailed, postage prepaid, to such address. This Agreement shall be binding upon
and inure to the benefit of each party hereto and its successors and assigns,
but the Borrower may not assign its rights or obligations hereunder. This
Agreement may not be amended or waived except by a written instrument signed by
the Borrower and the Bank, and any such amendment or waiver shall be effective
only for the specific purpose given. No failure or delay by either party hereto
to exercise any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege preclude any other
right, power or privilege. The provisions of this Agreement are severable and if
any one provision hereof shall be held invalid or unenforceable in whole or in
part in any jurisdiction, such invalidity or unenforceability shall affect only
such provision in such jurisdiction. This Agreement, together with all Schedules
hereto, expresses the entire understanding of the parties with respect to the
transactions contemplated hereby. This Agreement and any amendment hereby may be
executed in several counterparts, each of which shall be an original, and all of
which shall constitute one agreement. In proving this Agreement, it shall not be
necessary to produce more than one such counterpart executed by the party to be
charged. THIS AGREEMENT AND THE NOTE ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL BE CONSTRUED IN ACCORDANCE THEREWITH AND
GOVERNED THEREBY. THE BORROWER AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF ANY
OF THE LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN.
12. INTEREST LIMITATION.
It is the intention of the parties hereto that the Bank shall conform
strictly to usury laws applicable to it. Accordingly, if the transactions
contemplated hereby would be usurious as to the Bank under laws applicable to it
(including the laws of the United States of America or any other jurisdictions
whose laws may be mandatorily applicable to the Bank notwithstanding the other
provision of the Notes), then, in that event, notwithstanding anything to the
contrary in the Note, the Loan Documents, the Agreement or any other agreements
entered into in connection with or as security the Notes, it is agreed as
follows: (a) the aggregate of all consideration which constitutes interest under
laws applicable to the Bank that is contracted for, taken, reserved, charged or
received by the Bank under the Notes, the Loan Documents, the Agreement or any
other agreements entered into in connection with or as security for the Note or
otherwise in connection with the Note shall under no circumstances exceed the
maximum amount allowed by such applicable law, and any excess shall be cancelled
automatically and if theretofore paid shall be credited by the Bank on the
principal amount of the Indebtedness (or, to the extent that the principal
amount of the Indebtedness shall have been or would thereby be paid in full,
refunded by the Bank to the Borrower); and (b) in the event that the maturity of
the Note is accelerated by reason of an election of the holder thereof resulting
from any Event of Default under the Note, or in the event of any required or
permitted prepayment, then such consideration that constitutes interest under
law applicable to the Bank may never include more than the maximum amount
allowed by such applicable law, and excess interest, if any, provided for in the
Note or otherwise shall be cancelled automatically by the Bank as of the date of
such acceleration or prepayment and, if therefore paid, shall be credited by the
Bank on the principal amount of the Indebtedness (or, to the extent that the
principal amount of the Indebtedness shall have been or would thereby be paid in
full, refunded by the Bank to the Borrower). All sums paid or agreed to be paid
to the Bank for the use, forbearance or detention of sums due hereunder shall,
to the extent permitted by laws applicable to the Bank, be amortized, prorated,
allocated and spread through the term of the Loans evidenced by the Note until
payment in full so that the rate or amount of interest on account of any Loans
does not exceed the maximum amount allowed by such applicable law. If at any
time and from time to time (a) the amount of interest payable to the Bank on any
date shall be computed at the highest lawful rate applicable to the Bank
pursuant to this paragraph and (b) in respect of any subsequent interest
computation period the amount of interest otherwise payable to the Bank would be
less than the amount of interest payable to the Bank computed at the highest
lawful rate applicable to the Bank, then the amount of interest payable to the
Bank in respect of such subsequent interest computation period shall continue to
be computed at the highest lawful rate applicable to the Bank until the total
amount of interest payable to the Bank shall equal the total amount of interest
which would have been payable to the Bank if the total amount of interest had
been computed without giving effect to this paragraph.
16
To the extent that Article 5069-1.04 of the Texas Revised Civil
Statutes is relevant to the Bank for the purpose of determining the highest
lawful rate, the Bank hereby elects to determine the applicable rate ceiling
under such Article by the indicated (weekly) rate ceiling from time to time in
effect.
17
IN WITNESS WHEREOF, the undersigned have duly executed this Revolving
Credit Agreement as a sealed instrument as of the date first above written.
MICROGRAFX, INC.
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name:
Title:
Address:
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxx 00000
Tel: (000) 000-0000
---------------------------------
Fax:
---------------------------------
BANKBOSTON, N.A.
By: /s/ Xxx X. Massimo
------------------------------------
Name: Xxx X. Massimo
Title: Vice President
Address:
000 Xxxxxxx Xxxxxx, 00-00-00
Xxxxxx, Xxxxxxxxxxxxx 00000
Tel: (000)000-0000
Fax: (000)000-0000
18
Schedule 6(j) - Subsidiaries
Micrografx France
Micrografx Japan
Micrografx BV
Mircrografx Italy
Micrografx Deutschland GmbH
Micrografx Ltd.
19
Schedule 8.2(a) - Indebtedness
None.
20
Schedule 8.2(b) - Liens
None.
