Exhibit 10.1
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CREDIT AGREEMENT
AMONG
AGILYSYS, INC.,
AS A US BORROWER,
THE OTHER US BORROWERS NAMED HEREIN,
AND
THE FOREIGN BORROWERS NAMED HEREIN,
COLLECTIVELY, AS BORROWERS,
THE LENDERS NAMED HEREIN,
AS LENDERS,
AND
LASALLE BANK NATIONAL ASSOCIATION,
AS LEAD ARRANGER, BOOK RUNNER AND ADMINISTRATIVE AGENT,
NATIONAL CITY BANK,
AS SYNDICATION AGENT,
HARRIS N.A.,
AS CO-DOCUMENTATION AGENT,
CHARTER ONE BANK, N.A.,
AS CO-DOCUMENTATION AGENT
AND
U.S. BANK NATIONAL ASSOCIATION,
AS MANAGING AGENT
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DATED AS OF
OCTOBER 18, 2005
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TABLE OF CONTENTS
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ARTICLE I. DEFINITIONS................................................... 1
Section 1.1. Definitions............................................ 1
Section 1.2. Accounting Terms....................................... 23
Section 1.3. Terms Generally........................................ 23
ARTICLE II. AMOUNT AND TERMS OF CREDIT................................... 23
Section 2.1. Amount and Nature of Credit............................ 23
Section 2.2. Revolving Credit....................................... 24
Section 2.3. Interest............................................... 28
Section 2.4. Evidence of Indebtedness............................... 30
Section 2.5. Notice of Credit Event; Funding of Loans............... 30
Section 2.6. Payment on Loans and Other Obligations................. 31
Section 2.7. Prepayment............................................. 33
Section 2.8. Facility and Other Fees; Reduction of Commitment....... 33
Section 2.9. Computation of Interest and Fees....................... 34
Section 2.10. Mandatory Payments..................................... 34
Section 2.11. Effectiveness of Guaranties............................ 34
Section 2.12. Liability of Borrowers................................. 35
Section 2.13. Addition of US Borrowers, Foreign Borrowers and
Foreign Guarantors..................................... 36
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR FIXED RATE LOANS;
INCREASED CAPITAL; TAXES................................................. 38
Section 3.1. Requirements of Law.................................... 38
Section 3.2. Taxes.................................................. 39
Section 3.3. Funding Losses......................................... 41
Section 3.4. Eurodollar Rate or Alternate Currency Rate Lending
Unlawful; Inability to Determine Rate.................. 41
Section 3.5. Discretion of Lenders as to Manner of Funding.......... 42
ARTICLE IV. CONDITIONS PRECEDENT......................................... 42
Section 4.1. Conditions to Each Credit Event........................ 42
Section 4.2. Conditions to the First Credit Event................... 43
ARTICLE V. COVENANTS..................................................... 45
Section 5.1. Insurance.............................................. 45
Section 5.2. Money Obligations...................................... 45
Section 5.3. Financial Statements and Information................... 45
Section 5.4. Financial Records...................................... 46
Section 5.5. Franchises; Change in Business......................... 46
Section 5.6. ERISA and Benefit Plan Compliance...................... 47
Section 5.7. Financial Covenants.................................... 47
Section 5.8. Borrowing.............................................. 48
Section 5.9. Liens.................................................. 49
Section 5.10. Regulations T, U and X................................. 50
Section 5.11. Investments, Loans and Guaranties...................... 50
Section 5.12. Merger and Sale of Assets.............................. 51
Section 5.13. Acquisitions........................................... 52
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Section 5.14. Notice................................................. 53
Section 5.15. Restricted Payments.................................... 53
Section 5.16. Environmental Compliance............................... 53
Section 5.17. Affiliate Transactions................................. 54
Section 5.18. Use of Proceeds........................................ 54
Section 5.19. Corporate Names........................................ 54
Section 5.20. Subsidiary Guaranties and Pledge of Stock or Other
Ownership Interest..................................... 54
Section 5.21. Restrictive Agreements................................. 55
Section 5.22. Other Covenants........................................ 55
Section 5.23. Guaranty Under Material Indebtedness Agreement......... 55
Section 5.24. Pari Passu Ranking..................................... 55
Section 5.25. Amendment of Organizational Documents.................. 55
Section 5.26. Other Indebtedness..................................... 56
ARTICLE VI. REPRESENTATIONS AND WARRANTIES............................... 56
Section 6.1. Corporate Existence; Subsidiaries; Foreign
Qualification.......................................... 56
Section 6.2. Corporate Authority.................................... 56
Section 6.3. Compliance with Laws and Contracts..................... 56
Section 6.4. Litigation and Administrative Proceedings.............. 57
Section 6.5. Title to Assets........................................ 57
Section 6.6. Liens and Security Interests........................... 57
Section 6.7. Tax Returns............................................ 57
Section 6.8. Environmental Laws..................................... 58
Section 6.9. Continued Business..................................... 58
Section 6.10. Employee Benefits Plans................................ 58
Section 6.11. Consents or Approvals.................................. 59
Section 6.12. Solvency............................................... 59
Section 6.13. Financial Statements................................... 59
Section 6.14. Regulations............................................ 60
Section 6.15. Material Agreements.................................... 60
Section 6.16. Intellectual Property.................................. 60
Section 6.17. Insurance.............................................. 60
Section 6.18. Accurate and Complete Statements....................... 60
Section 6.19. Investment Company; Holding Company.................... 60
Section 6.20. Defaults............................................... 60
ARTICLE VII. EVENTS OF DEFAULT........................................... 60
Section 7.1. Payments............................................... 60
Section 7.2. Special Covenants...................................... 61
Section 7.3. Other Covenants........................................ 61
Section 7.4. Representations and Warranties......................... 61
Section 7.5. Cross Default.......................................... 61
Section 7.6. ERISA Default.......................................... 61
Section 7.7. Change in Control...................................... 61
Section 7.8. Money Judgment......................................... 61
Section 7.9. Material Adverse Change................................ 62
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Section 7.10. Validity of Loan Documents............................. 62
Section 7.11. Solvency............................................... 62
ARTICLE VIII. REMEDIES UPON DEFAULT...................................... 62
Section 8.1. Optional Defaults...................................... 63
Section 8.2. Automatic Defaults..................................... 63
Section 8.3. Letters of Credit...................................... 63
Section 8.4. Offsets................................................ 63
Section 8.5. Equalization Provision................................. 64
Section 8.6. Other Remedies......................................... 64
ARTICLE IX. THE AGENT.................................................... 64
Section 9.1. Appointment and Authorization.......................... 64
Section 9.2. Note Holders........................................... 65
Section 9.3. Consultation With Counsel.............................. 65
Section 9.4. Documents.............................................. 65
Section 9.5. Agent and Affiliates................................... 65
Section 9.6. Knowledge of Default................................... 66
Section 9.7. Action by Agent........................................ 66
Section 9.8. Release of Guarantor of Payment or Pledge of Stock..... 66
Section 9.9. Notices, Default....................................... 66
Section 9.10. Delegation of Duties................................... 66
Section 9.11. Indemnification of Agent............................... 67
Section 9.12. Successor Agent........................................ 67
Section 9.13. Fronting Lender........................................ 67
Section 9.14. Agent May File Proofs of Claim......................... 67
Section 9.15. Other Agents........................................... 68
ARTICLE X. MISCELLANEOUS................................................. 68
Section 10.1. Lenders' Independent Investigation..................... 68
Section 10.2. No Waiver; Cumulative Remedies......................... 68
Section 10.3. Amendments, Waivers and Consents....................... 69
Section 10.4. Notices................................................ 69
Section 10.5. Costs, Expenses and Taxes.............................. 70
Section 10.6. Indemnification........................................ 70
Section 10.7. Obligations Several; No Fiduciary Obligations.......... 70
Section 10.8. Execution in Counterparts.............................. 71
Section 10.9. Binding Effect; Borrower's Assignment.................. 71
Section 10.10. Lender Assignments..................................... 71
Section 10.11. Sale of Participations................................. 73
Section 10.12. Patriot Act Notice..................................... 74
Section 10.13. Severability of Provisions; Captions; Attachments...... 74
Section 10.14. Investment Purpose..................................... 74
Section 10.15. Entire Agreement....................................... 74
Section 10.16. Confidentiality........................................ 74
Section 10.17. Legal Representation of Parties........................ 75
Section 10.18. Currency............................................... 75
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Section 10.19. Governing Law; Submission to Jurisdiction.............. 76
Section 10.20. Jury Trial Waiver...................................... Signature Page 1
Schedule 1 Commitments of Lenders
Schedule 2 Borrowers
Schedule 3 Guarantors of Payment
Schedule 4 Additional Foreign Borrower Maximum Amount
Schedule 5 Pledged Securities
Schedule 5.8 Indebtedness
Schedule 5.9 Liens
Schedule 5.11 Permitted Foreign Subsidiary Loans and Investments
Schedule 6.1 Corporate Existence; Subsidiaries; Foreign Qualification
Schedule 6.4 Litigation and Administrative Proceedings
Schedule 6.10 Employee Benefits Plans
Schedule 6.15 Material Agreements
Exhibit A US Borrower Revolving Credit Note
Exhibit B Foreign Borrower Revolving Credit Note
Exhibit C Swing Line Note
Exhibit D Notice of Loan
Exhibit E Compliance Certificate
Exhibit F Form of Assignment and Acceptance Agreement
Exhibit G Form of Additional Borrower Assumption Agreement
Exhibit H Master Letter of Credit Agreement
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This CREDIT AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this "Agreement") is made effective as of the
18th day of October, 2005 among:
(a) AGILYSYS, INC., an Ohio corporation ("Agilysys");
(b) each US Borrower (other than Agilysys), as hereinafter defined;
(c) each Foreign Borrower, as hereinafter defined (each such Foreign
Borrower, together with each US Borrower shall be referred to herein,
collectively, as "Borrowers" and, individually, each a "Borrower");
(d) the lenders listed on Schedule 1 hereto and each other Eligible
Transferee, as hereinafter defined, that becomes a party hereto pursuant to
Section 10.10 hereof (collectively, the "Lenders" and, individually, each a
"Lender");
(e) LASALLE BANK NATIONAL ASSOCIATION, as lead arranger, book runner
and administrative agent for the Lenders under this Agreement ("Agent");
(f) NATIONAL CITY BANK, as syndication agent ("Syndication Agent");
(g) HARRIS N.A., as co-documentation agent ("Co-Documentation Agent");
(h) CHARTER ONE BANK, N.A., as co-documentation agent
("Co-Documentation Agent"); and
(i) U.S. BANK NATIONAL ASSOCIATION, as managing agent ("Managing
Agent").
WITNESSETH:
WHEREAS, Borrowers, Agent and the Lenders desire to contract for the
establishment of credits in the aggregate principal amounts hereinafter set
forth, to be made available to Borrowers upon the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE, it is mutually agreed as follows:
ARTICLE I. DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Acquisition" shall mean any transaction or series of related transactions
for the purpose of or resulting, directly or indirectly, in (a) the acquisition
of all or substantially all of the assets
of any Person (other than a Company), or any business or division of any Person
(other than a Company), (b) the acquisition of in excess of fifty percent (50%)
of the stock (or other equity interest) of any Person (other than a Company), or
(c) the acquisition of another Person (other than a Company) by a merger,
amalgamation or consolidation or any other combination with such Person.
"Additional Borrower Assumption Agreement" shall mean each of the
Additional Borrower Assumption Agreements executed by a US Borrower or Foreign
Borrower, as applicable, after the Closing Date, in the form of the attached
Exhibit G, as the same may from time to time be amended, restated or otherwise
modified.
"Additional Foreign Borrower Maximum Amount" shall mean that term as
defined in Section 2.13(b) hereof.
"Additional Foreign Guarantor Maximum Amount" shall mean that term as
defined in Section 2.13(c) hereof.
"Administrative Borrower" shall mean Agilysys.
"Advantage" shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or other indebtedness or otherwise)
received by any Lender in respect of the Obligations, if such payment results in
that Lender having less than its pro rata share of the Obligations then
outstanding.
"Affiliate" shall mean any Person, directly or indirectly, controlling,
controlled by or under common control with a Company and "control" (including
the correlative meanings, the terms "controlling", "controlled by" and "under
common control with") shall mean the power, directly or indirectly, to direct or
cause the direction of the management and policies of a Company, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" shall mean that term as defined in the first paragraph hereof.
"Agent Fee Letter" shall mean the Agent Fee Letter between Agilysys and
Agent, dated as of the Closing Date, as the same may from time to time be
amended, restated or otherwise modified.
"Agreement" shall mean that term as defined in the first paragraph hereof.
"Agreement for Inventory Financing" shall mean that certain Amended and
Restated Agreement for Inventory Financing (Unsecured), dated on or about April
16, 2003, by and between IBM Credit LLC and Agilysys, as amended and as the same
may from time to time be further amended, restated or otherwise modified.
"Alternate Currency" shall mean Euros, Pounds Sterling, Canadian Dollars,
Japanese Yen, Hong Kong Dollars or any other currency, other than Dollars,
agreed to by Agent that shall be freely transferable and convertible into
Dollars.
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"Alternate Currency Exposure" shall mean, at any time and without
duplication, the sum of the Dollar Equivalent of (a) the aggregate principal
amount of Alternate Currency Loans, and (b) the Letter of Credit Exposure that
is denominated in one or more Alternate Currencies.
"Alternate Currency Loan" shall mean a Revolving Loan described in Section
2.2(a) hereof, that shall be denominated in an Alternate Currency and on which
Borrowers shall pay interest at a rate based upon the Derived LIBOR Fixed Rate
applicable to such Alternate Currency.
"Alternate Currency Maximum Amount" shall mean Twenty Million Dollars
($20,000,000).
"Alternate Currency Rate" shall mean, with respect to an Alternate Currency
Loan, for any Interest Period, a rate of interest equal to the quotient of (a)
the per annum rate of interest at which relevant Alternate Currency deposits in
an amount comparable to the amount of such Alternate Currency Loan and for a
period equal to the such Interest Period are offered in the London Interbank
Eurodollar market at 11:00 A.M. (London time) two Business Days prior to the
commencement of such Interest Period (or three Business Days prior to the
commencement of such Interest Period if banks in London, England were not open
and dealing in such Alternate Currency on such second preceding Business Day),
as displayed in the Bloomberg Financial Markets Information Service system (or
other authoritative source selected by Agent in its sole discretion) or, if the
Bloomberg Financial Markets Information Service system or another authoritative
source is not available, as the Alternate Currency Rate is otherwise determined
by Agent in its sole and absolute discretion; divided by (b) a number determined
by subtracting from 1.00 the then stated maximum reserve percentage for
determining reserves to be maintained by member banks of the Federal Reserve
System for Eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D), such rate to remain
fixed for such Interest Period. Agent's determination of the Alternate Currency
Rate shall be rebuttably presumptive evidence of such rate.
"Applicable Facility Fee Rate" shall mean:
(a) for the period from the Closing Date through November 30, 2005,
twenty-two and one-half (22.50) basis points; and
(b) commencing with the Consolidated financial statements of Agilysys
for the fiscal quarter ending September 30, 2005, the number of basis
points set forth in the following matrix, based upon the result of the
computation of the Leverage Ratio, shall be used to establish the number of
basis points that will go into effect on December 1, 2005 and thereafter:
LEVERAGE RATIO APPLICABLE FACILITY FEE RATE
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Greater than or equal to 2.50 to 1.00 50.00 basis points
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Greater than or equal to 2.00 to 1.00 but less than 37.50 basis points
2.50 to 1.00
Greater than or equal to 1.50 to 1.00 but less than 35.00 basis points
2.00 to 1.00
Greater than or equal to 1.00 to 1.00 but less than 22.50 basis points
1.50 to 1.00
Greater than or equal to .50 to 1.00 but less than 20.00 basis points
1.00 to 1.00
Less than .50 to 1.00 17.50 basis points
After December 1, 2005, changes to the Applicable Facility Fee Rate shall be
effective on the first day of each month following the date upon which Agent
should have received, pursuant to Section 5.3(a) and (b) hereof, the
Consolidated financial statements of Agilysys. The above matrix does not modify
or waive, in any respect, the requirements of Section 5.7 hereof, the rights of
Agent and the Lenders to charge the Default Rate, or the rights and remedies of
Agent and the Lenders pursuant to Articles VII and VIII hereof.
"Applicable Margin" shall mean:
(a) for the period from the Closing Date through November 30, 2005,
one hundred two and one-half (102.50) basis points for LIBOR Fixed Rate
Loans and zero (0.00) basis points for Base Rate Loans; and
(b) commencing with the Consolidated financial statements of Agilysys
for the fiscal quarter ending September 30, 2005, the number of basis
points (depending upon whether Loans are LIBOR Fixed Rate Loans or Base
Rate Loans) set forth in the following matrix, based upon the result of the
computation of the Leverage Ratio, shall be used to establish the number of
basis points that will go into effect on December 1, 2005 and thereafter:
APPLICABLE BASIS APPLICABLE BASIS POINTS
POINTS FOR LIBOR FIXED FOR BASE RATE
LEVERAGE RATIO RATE LOANS LOANS
-------------- ---------------------- -----------------------
Greater than or equal to 2.50 to 1.00 150.00 50.00
Greater than or equal to 2.00 to 1.00 but 137.50 0.00
less than 2.50 to 1.00
Greater than or equal to 1.50 to 1.00 but 115.00 0.00
less than 2.00 to 1.00
Greater than or equal to 1.00 to 1.00 but 102.50 0.00
less than 1.50 to 1.00
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Greater than or equal to .50 to 1.00 but 80.00 0.00
less than 1.00 to 1.00
Less than 0.50 to 1.00 57.50 0.00
After December 1, 2005, changes to the Applicable Margin shall be effective on
the first day of each month following the date upon which Agent should have
received, pursuant to Section 5.3(a) and (b) hereof, the Consolidated financial
statements of Agilysys. The above matrix does not modify or waive, in any
respect, the requirements of Section 5.7 hereof, the rights of Agent and the
Lenders to charge the Default Rate, or the rights and remedies of Agent and the
Lenders pursuant to Articles VII and VIII hereof.
"Assignment Agreement" shall mean an Assignment and Acceptance Agreement in
the form of the attached Exhibit F.
"Authorized Officer" shall mean the general counsel, a Financial Officer or
other individual authorized by a Financial Officer in writing (with a copy to
Agent) to handle certain administrative matters in connection with this
Agreement.
"Base Rate" shall mean a rate per annum equal to the greater of (a) the
Prime Rate or (b) one-half of one percent (.50%) in excess of the Federal Funds
Effective Rate. Any change in the Base Rate shall be effective immediately from
and after such change in the Base Rate.
"Base Rate Loan" shall mean a Revolving Loan described in Section 2.2(a)
hereof, that shall be denominated in Dollars and on which Borrowers shall pay
interest at a rate based on the Derived Base Rate.
"Borrower" shall mean that term as defined in the first paragraph hereof.
"Borrowers" shall mean that term as defined in the first paragraph hereof.
"Borrower Investment Policy" shall mean the Investment Policy Guidelines of
Agilysys in effect as of the Closing Date, together with such modifications as
approved from time to time by the Board of Directors of Agilysys.
"Business Day" shall mean (a) a day of the year that is not a Saturday,
Sunday or on which national banks are not authorized or required to close in
Chicago, Illinois, (b) if the applicable Business Day relates to a Eurodollar
Loan, a day of the year on which dealings in deposits are carried on in the
London interbank Eurodollar market, and (c) if the applicable Business Day
relates to an Alternate Currency, a day of the year on which dealings in
deposits are carried on in the relevant Alternate Currency.
"Capital Distribution" shall mean a payment made, liability incurred or
other consideration given by a Company to any Person that is not a Company, for
the purchase, acquisition, redemption, repurchase, payment or retirement of any
capital stock or other equity interest (other than the Convertible Debentures)
of such Company, or as a dividend, return of capital or other distribution
(other than any stock dividend, stock split or other equity distribution
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payable only in capital stock or other equity of such Company) in respect of
such Company's capital stock or other equity interest (other than the
Convertible Debentures).
"Capitalized Lease Obligations" shall mean obligations of the Companies for
the payment of rent for any real or personal property under leases or agreements
to lease that, in accordance with GAAP, have been or should be capitalized on
the books of the lessee and, for purposes hereof, the amount of any such
obligation shall be the capitalized amount thereof determined in accordance with
GAAP.
"Cash Equivalent Investments" shall mean (a) short-term obligations of, or
fully guaranteed by, the United States of America, (b) commercial paper rated
A-2 or better by Standard & Poor's or P-2 or better by Moody's, (c) demand
deposit accounts maintained in the ordinary course of business, and (d)
certificates of deposit issued by and time deposits with commercial banks
(whether domestic or foreign) having capital and surplus in excess of One
Hundred Million Dollars ($100,000,000); provided, in each case, that the same
provides for payment of both principal and interest (and not principal alone or
interest alone) and is not subject to any contingency regarding the payment of
principal or interest.
"Change in Control" shall mean (a) the acquisition of, or, if earlier, the
shareholder or director approval of the acquisition of, ownership or voting
control, directly or indirectly, beneficially (within the meaning of Rules 13d-3
and 13d-5 of the Securities Exchange Act of 1934, as then in effect) or of
record, on or after the Closing Date, by any Person or group (within the meaning
of Sections 13d and 14d of the Securities Exchange Act of 1934, as then in
effect), of shares representing more than thirty percent (30%) of the aggregate
ordinary Voting Power represented by the issued and outstanding capital stock of
Agilysys; (b) the occupation of a majority of the seats (other than vacant
seats) on the board of directors or other governing body of Agilysys by Persons
who were neither (i) nominated by the board of directors or other governing body
of Agilysys nor (ii) appointed by directors so nominated or elected by a
majority of shareholders; or (c) the occurrence of a change in control, or other
similar provision, as defined in any Material Indebtedness Agreement.
"Closing Date" shall mean the effective date of this Agreement as set forth
in the first paragraph of this Agreement.
"Closing Date Required Net Worth Amount" shall mean an amount equal to the
sum of (a) eighty-five percent (85%) of the Consolidated Net Worth of Agilysys
as of June 30, 2005; plus (b) fifty percent (50%) of positive Consolidated Net
Earnings for the fiscal quarter of Agilysys ending September 30, 2005.
"Closing Fee Letter" shall mean the Closing Fee Letter between Agilysys and
Agent, dated as of the Closing Date.
"Code" shall mean the Internal Revenue Code of 1986, as amended, together
with the rules and regulations promulgated thereunder.
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"Commitment" shall mean the obligation hereunder of the Lenders, during the
Commitment Period, to make Loans and to participate in the issuance of Letters
of Credit pursuant to the Revolving Credit Commitment, up to the Total
Commitment Amount.
"Commitment Percentage" shall mean, for each Lender, the percentage set
forth opposite such Lender's name under the column headed "Commitment
Percentage", as listed in Schedule 1 hereto (taking into account any assignments
pursuant to Section 10.10 hereof).
"Commitment Period" shall mean the period from the Closing Date to October
17, 2010, or such earlier date on which the Commitment shall have been
terminated pursuant to Article VIII hereof.
"Companies" shall mean all Borrowers and Subsidiaries.
"Company" shall mean a Borrower or Subsidiary.
"Compliance Certificate" shall mean a Compliance Certificate in the form of
the attached Exhibit E.
"Confidential Information" shall mean all confidential or proprietary
information about the Companies that has been furnished by any Company to Agent
or any Lender, whether furnished before or after the Closing Date and regardless
of the manner in which it is furnished, but does not include any such
information that (a) is or becomes generally available to the public other than
as a result of a disclosure by Agent or such Lender not permitted by this
Agreement, (b) was available to Agent or such Lender on a nonconfidential basis
prior to its disclosure to Agent or such Lender, or (c) becomes available to
Agent or such Lender on a nonconfidential basis from a Person other than a
Company.
"Consideration" shall mean, in connection with an Acquisition, the
aggregate consideration paid, including borrowed funds, cash, the issuance of
securities or notes, the assumption or incurring of liabilities (direct or
contingent), the payment of consulting fees or fees for a covenant not to
compete and any other consideration paid for such Acquisition.
"Consolidated" shall mean the resultant consolidation of the financial
statements of Agilysys and its Subsidiaries in accordance with GAAP, including
principles of consolidation consistent with those applied in preparation of the
consolidated financial statements referred to in Section 6.13 hereof.
"Consolidated Capital Expenditures" shall mean, for any period, as
determined on a Consolidated basis and in accordance with GAAP, purchases of
property, plant and equipment as reported in Agilysys' Consolidated statement of
cash flows for such period, as reflected in Agilysys' Quarterly Report on Form
10-Q or Agilysys' Annual Report on Form 10-K filed with the SEC for such period,
as applicable.
"Consolidated Depreciation and Amortization Charges" shall mean, for any
period, as determined on a Consolidated basis and in accordance with GAAP, the
aggregate of all
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depreciation and amortization charges for fixed assets, leasehold improvements
and general intangibles (specifically including goodwill) of Agilysys, as
reported in Agilysys' Consolidated statement of cash flows for such period, as
reflected in Agilysys' Quarterly Report on Form 10-Q or Agilysys' Annual Report
on Form 10-K filed with the SEC for such period, as applicable.
"Consolidated EBITDA" shall mean, for any period, as determined on a
Consolidated basis and in accordance with GAAP, Consolidated Net Earnings from
continuing operations of Agilysys, as reported in Agilysys' Consolidated income
statement for such period, as reflected in Agilysys' Quarterly Report on Form
10-Q or Agilysys' Annual Report on Form 10-K filed with the SEC for such period,
as applicable, plus the aggregate amounts deducted in determining such
Consolidated Net Earnings from continuing operations in respect of:
(a) Consolidated Income Tax Expense;
(b) Consolidated Interest Expense (including, to the extent deducted
from Consolidated Net Earnings from continuing operations of Agilysys, the
amortization of deferred financing costs, interest expense on deferred
compensation arrangements, if any, and payments made to obtain Hedge
Agreements);
(c) distributions on the Convertible Debentures to the extent not
included in Consolidated Interest Expense;
(d) Consolidated Depreciation and Amortization Charges;
(e) Consolidated restructuring charges as reported in Agilysys'
Consolidated financial statements for any such period during the 2006
fiscal year, as reflected in Agilysys' Quarterly Report on Form 10-Q or
Agilysys' Annual Report on Form 10-K filed with the SEC for such period, as
applicable, in an aggregate amount not to exceed Seven Million Dollars
($7,000,000) for all such periods during the 2006 fiscal year;
(f) losses resulting from the premiums paid with respect to the early
redemption of the Convertible Debentures; and
(g) (i) extraordinary non-cash losses not incurred in the ordinary
course of business, minus (ii) extraordinary non-cash gains not incurred in
the ordinary course of business.
Consolidated EBITDA shall be calculated on a pro forma basis giving effect to
Acquisitions permitted under this Agreement for the most recently completed
twelve (12) calendar months using, for any Acquisition permitted under this
Agreement, as applicable, historical financial statements containing such
adjustments as are approved by Agent for inclusion in such calculation, which
adjustments shall be satisfactory to Agent, in its reasonable credit judgment.
The aforementioned adjustments may be broken down by fiscal quarter in Agilysys'
reasonable judgment.
"Consolidated Fixed Charges" shall mean, at any date, as determined on a
Consolidated basis and in accordance with GAAP, without duplication, the
aggregate of (a) Consolidated
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Interest Expense (including, without limitation, the "imputed interest" portion
of capital leases, synthetic leases and asset securitizations, if any), (b) rent
expenses, (c) principal payments on Consolidated Funded Indebtedness (other than
(i) optional prepayments or scheduled amortization of the Senior Unsecured
Notes, and (ii) optional prepayments of the Loans or any other Indebtedness),
(d) Consolidated Income Tax Expense paid in cash, and (e) cash expenditures
relating to Capital Distributions.
"Consolidated Funded Indebtedness" shall mean, for any period, as
determined on a Consolidated basis, the sum of (a) all Indebtedness for borrowed
money, as determined in accordance with GAAP, (b) all obligations (contingent or
otherwise) under any letter of credit or banker's acceptance, and (c)
Capitalized Lease Obligations and Indebtedness pursuant to synthetic leases, as
determined in accordance with GAAP.
"Consolidated Income Tax Expense" shall mean, for any period, as determined
on a Consolidated basis and in accordance with GAAP, all provisions for taxes
based on the gross or net income of Agilysys (including, without limitation, any
additions to such taxes, and any penalties and interest with respect thereto),
and all franchise taxes of Agilysys, all as reported in Agilysys' Consolidated
income statement for such period as reflected in Agilysys' Quarterly Report on
Form 10-Q or Agilysys' Annual Report on Form 10-K filed with the SEC for such
period, as applicable.
"Consolidated Interest Expense" shall mean, for any period, as determined
on a Consolidated basis and in accordance with GAAP, the interest expense of
Agilysys as reported in Agilysys' Consolidated income statement for such period
as reflected in Agilysys' Quarterly Report on Form 10-Q or Agilysys' Annual
Report on Form 10-K filed with the SEC for such period, as applicable.
"Consolidated Net Earnings" shall mean, for any period, as determined on a
Consolidated basis and in accordance with GAAP, the net income (loss) of
Agilysys, as reported in Agilysys' Consolidated income statement for such period
as reflected in Agilysys' Quarterly Report on Form 10-Q or Agilysys' Annual
Report on Form 10-K filed with the SEC for such period, as applicable.
"Consolidated Net Worth" shall mean, at any date, as determined on a
Consolidated basis and in accordance with GAAP, the stockholders' equity of
Agilysys, as determined as of such date and as reported in Agilysys'
Consolidated balance sheet as reflected in the Agilysys' Quarterly Report on
Form 10-Q or Agilysys' Annual Report on Form 10-K filed with the SEC, as
applicable for the period ending as of such date.
"Controlled Group" shall mean a Company and each Person required to be
aggregated with a Company under Code Section 414(b), (c), (m) or (o).
"Convertible Debentures" shall mean the Series A 6 3/4% Junior Convertible
Subordinated Debentures of Agilysys, due March 31, 2028, issued in the aggregate
original principal amount of up to One Hundred Fifty Million Dollars
($150,000,000), under the Convertible Debentures Indenture, and redeemed in full
prior to the Closing Date.
9
"Convertible Debentures Indenture" shall mean that certain Junior
Subordinated Indenture, dated as of March 23, 1998, of Agilysys to Wilmington
Trust Company, as trustee, as supplemented by that certain First Supplemental
Indenture, dated as of March 23, 1998, of Agilysys to Wilmington Trust Company,
as trustee.
"Credit Event" shall mean the making by the Lenders of a Loan, the
conversion by the Lenders of a Base Rate Loan to a LIBOR Fixed Rate Loan, the
continuation by the Lenders of a LIBOR Fixed Rate Loan after the end of the
applicable Interest Period, the making by the Swing Line Lender of a Swing Loan,
or the issuance (or amendment) by the Fronting Lender of a Letter of Credit.
"Credit Party" shall mean each Borrower and any Subsidiary or other
Affiliate that is a Guarantor of Payment.
"Credit Rating" shall mean the Moody's Rating or the S&P Rating.
"Default" shall mean an event or condition that constitutes, or with the
lapse of any applicable grace period or the giving of notice or both would
constitute, an Event of Default and that has not been waived by the Required
Lenders (or, if applicable, all of the Lenders) in writing.
"Default Rate" shall mean (a) with respect to any Loan, a rate per annum
equal to two percent (2%) in excess of the rate otherwise applicable thereto,
and (b) with respect to any other amount, if no rate is specified or available,
a rate per annum equal to two percent (2%) in excess of the Derived Base Rate
from time to time in effect.
"Derived Base Rate" shall mean a rate per annum equal to the sum of the
Applicable Margin (from time to time in effect) for Base Rate Loans plus the
Base Rate.
"Derived LIBOR Fixed Rate" shall mean (a) with respect to a Eurodollar
Loan, a rate per annum equal to the sum of the Applicable Margin (from time to
time in effect) plus the Eurodollar Rate, and (b) with respect to an Alternate
Currency Loan, a rate per annum equal to the sum of the Applicable Margin (from
time to time in effect) plus the Alternate Currency Rate applicable to the
relevant Alternate Currency.
"Disposition" shall mean the lease, transfer or other disposition of assets
(whether in one or more than one transaction) by a Company, other than a sale,
lease, transfer or other disposition made by a Company pursuant to Section
5.12(b) hereof or in the ordinary course of business.
"Dollar" or the sign $ shall mean lawful money of the United States of
America.
"Dollar Equivalent" shall mean (a) with respect to an Alternate Currency
Loan or Letter of Credit denominated in an Alternate Currency, the Dollar
equivalent of the amount of such Alternate Currency Loan or Letter of Credit
denominated in an Alternate Currency, determined by Agent on the basis of the
Spot Rate for the purchase of the relevant Alternate Currency with
10
Dollars for delivery on the date such Alternate Currency Loan is advanced or
Letter of Credit issued, and (b) with respect to any other amount, (i) if such
amount is denominated in Dollars, then such amount in Dollars, and (ii) if such
amount is not denominated in Dollars, then the Dollar equivalent of such amount,
determined by Agent on the basis of the Spot Rate for the purchase of the
relevant Alternate Currency with Dollars for delivery on such date; provided,
however, that, in calculating the Dollar Equivalent for purposes of determining
(A) any Borrower's obligation to prepay Loans and Letters of Credit pursuant to
Section 2.10 hereof, or (B) any Borrower's ability to request additional Loans
or Letters of Credit pursuant to the Commitment, Agent may, in its discretion,
on any Business Day selected by Agent (prior to payment in full of the
Obligations), calculate the Dollar Equivalent of each such Loan or Letter of
Credit. Agent shall notify Administrative Borrower of the Dollar Equivalent of
such Alternate Currency Loan or any other amount, at the time that such Dollar
Equivalent shall have been determined.
"Domestic Guarantor of Payment" shall mean each of the Companies designated
a "Domestic Guarantor of Payment" on Schedule 3 hereto, each of which is
executing and delivering a Guaranty of Payment on the Closing Date, and any
other Domestic Subsidiary that shall deliver a Guaranty of Payment to Agent
subsequent to the Closing Date.
"Domestic Subsidiary" shall mean a Subsidiary that is not a Foreign
Subsidiary.
"EBITDA" shall mean, for any period, in accordance with GAAP and on a
non-consolidated basis, the net earnings of a Person (without giving effect to
extraordinary losses or gains) for such period plus the aggregate amounts
deducted in determining such net earnings in respect of (a) interest expense of
such Person, (b) income taxes of such Person and (c) the aggregate of all
depreciation and amortization charges of such Person.
"Eligible Transferee" shall mean a commercial bank, financial institution
or other "accredited investor" (as defined in SEC Regulation D) that is not a
Borrower, a Subsidiary or an Affiliate.
"Environmental Laws" shall mean all provisions of law (including the common
law), statutes, ordinances, codes, rules, guidelines, policies, procedures,
orders-in-council, regulations, permits, licenses, judgments, writs,
injunctions, decrees, orders, awards and standards promulgated by a Governmental
Authority or by any court, agency, instrumentality, regulatory authority or
commission of any of the foregoing concerning environmental health or safety and
protection of, or regulation of the discharge of substances into, the
environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated pursuant thereto.
"ERISA Event" shall mean (a) the existence of a condition or event with
respect to an ERISA Plan that presents a significant risk of the imposition of
an excise tax in a material amount or any other material liability on a Company
or of the imposition of a Lien on the assets of a Company; (b) the engagement by
a Controlled Group member in a non-exempt "prohibited transaction" (as defined
under ERISA Section 406 or Code Section 4975) or a breach of a
11
fiduciary duty under ERISA that, in either case, could result in a material
liability to a Company; (c) the application by a Controlled Group member for a
waiver from the minimum funding requirements of Code Section 412 or ERISA
Section 302 or a Controlled Group member is required to provide security under
Code Section 401(a)(29) or ERISA Section 307; (d) the occurrence of a Reportable
Event with respect to any Pension Plan as to which thirty-day notice is required
to be provided to the PBGC; (e) the withdrawal by a Controlled Group member from
a Multiemployer Plan in a "complete withdrawal" or a "partial withdrawal" (as
such terms are defined in ERISA Sections 4203 and 4205, respectively) which
results or is likely to result in a material liability to a Company; (f) the
involvement of, or occurrence or existence of any event or condition that makes
likely the involvement of, a Multiemployer Plan in any reorganization under
ERISA Section 4241; (g) the failure of an ERISA Plan (and any related trust)
that is intended to be qualified under Code Sections 401 and 501 to be so
qualified or the failure of any "cash or deferred arrangement" under any such
ERISA Plan to meet the requirements of Code Section 401(k), provided, in any
such case, that the failure exposes or is likely to expose a Company to material
liability; (h) the taking by the PBGC of any steps to terminate a Pension Plan
or appoint a trustee to administer a Pension Plan, or the taking by a Controlled
Group member of any steps to terminate a Pension Plan; (i) the failure by a
Controlled Group member or an ERISA Plan to satisfy any requirements of law
applicable to an ERISA Plan, provided, in any such case, that the failure
exposes or is likely to expose a Company to material liability; (j) the
commencement, existence or threatening of a claim, action, suit, audit or
investigation with respect to an ERISA Plan, other than a routine claim for
benefits, provided any such commencement, existence or threatening can
reasonably be anticipated to expose a Company to a material liability; or (k)
any incurrence by or any expectation of the incurrence by a Controlled Group
member of any liability for post-retirement medical benefits under any Welfare
Plan, other than as required by ERISA Section 601, et. seq. or Code Section
4980B other than limited payment in connection with severance benefits or with
respect to senior executives of a Company.
"ERISA Plan" shall mean an "employee benefit plan" (within the meaning of
ERISA Section 3(3)) that a Controlled Group member at any time sponsors,
maintains, contributes to, has liability with respect to or has an obligation to
contribute to such plan.
"Eurodollar" shall mean a Dollar denominated deposit in a bank or branch
outside of the United States.
"Eurodollar Loan" shall mean a Revolving Loan described in Section 2.2(a)
hereof, that shall be denominated in Dollars and on which Borrowers shall pay
interest at a rate based upon the Derived LIBOR Fixed Rate applicable to
Eurodollars.
"Eurodollar Rate" shall mean, with respect to a Eurodollar Loan, for any
Interest Period, a rate of interest equal to the quotient of (a) the per annum
rate of interest at which United States dollar deposits in an amount comparable
to the amount of such Eurodollar Loan and for a period equal to the such
Interest Period are offered in the London Interbank Eurodollar market at 11:00
A.M. (London time) two Business Days prior to the commencement of such Interest
Period (or three Business Days prior to the commencement of such Interest Period
if banks in London, England were not open and dealing in offshore United States
dollars on such second preceding
12
Business Day), as displayed in the Bloomberg Financial Markets Information
Service system (or other authoritative source selected by Agent in its sole
discretion) or, if the Bloomberg Financial Markets Information Service system or
another authoritative source is not available, as the Eurodollar Rate is
otherwise determined by Agent in its sole and absolute discretion; divided by
(b) a number determined by subtracting from 1.00 the then stated maximum reserve
percentage for determining reserves to be maintained by member banks of the
Federal Reserve System for Eurocurrency funding or liabilities as defined in
Regulation D (or any successor category of liabilities under Regulation D), such
rate to remain fixed for such Interest Period. Agent's determination of the
Eurodollar Rate shall be rebuttably presumptive evidence of such rate.
"Event of Default" shall mean an event or condition that shall constitute
an event of default as defined in Article VII hereof.
"Excluded Subsidiary" shall mean a Company that (a) is not a Credit Party,
(b) has aggregate assets of less than One Million Dollars ($1,000,000) and
aggregate investments by the Companies of less than One Million Dollars
($1,000,000) (but excluding any assets of, or investment by the Companies in,
Aprisa Holdings, Inc. or Aprisa Inc. so long as no further assets have been
acquired by, and no further investments have been made by the Companies in,
Aprisa Holdings, Inc. or Aprisa Inc. since April 16, 2003), and (c) has no
direct or indirect Subsidiaries with aggregate assets for all such Subsidiaries
of more than One Million Dollars ($1,000,000); provided that the aggregate
assets of all Excluded Subsidiaries shall not exceed Five Million Dollars
($5,000,000).
"Excluded Taxes" shall mean net income taxes (and franchise taxes imposed
in lieu of net income taxes) imposed on Agent or a Lender by the Governmental
Authority located in the jurisdiction where Agent or such Lender is organized.
"Federal Funds Effective Rate" shall mean, for any day, the rate per annum
(rounded upward to the nearest one one-hundredth of one percent (1/100 of 1%))
announced by the Federal Reserve Bank of New York (or any successor) on such day
as being the weighted average of the rates on overnight federal funds
transactions arranged by federal funds brokers on the previous trading day, as
computed and announced by such Federal Reserve Bank (or any successor) in
substantially the same manner as such Federal Reserve Bank computes and
announces the weighted average it refers to as the "Federal Funds Effective
Rate" as of the Closing Date.
"Financial Officer" shall mean any of the following officers: chief
executive officer, president, chief financial officer or treasurer. Unless
otherwise qualified, all references to a Financial Officer in this Agreement
shall refer to a Financial Officer of Agilysys.
"Fixed Charge Coverage Ratio" shall mean, for the most recently completed
four fiscal quarters of Agilysys, as determined on a Consolidated basis and in
accordance with GAAP, the ratio of (a) Consolidated EBITDA, minus (i)
Consolidated Capital Expenditures, plus (ii) Consolidated rent expenses of the
Companies; to (b) Consolidated Fixed Charges.
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"Foreign Affiliate" shall mean, with respect to a Foreign Borrower, a
parent Company, sister Company or Subsidiary of such Foreign Borrower.
"Foreign Borrower" shall mean each of the Foreign Subsidiaries of Agilysys
set forth on Schedule 2 hereto, together with any other Foreign Subsidiary of
Agilysys that, on or after the Closing Date, shall have satisfied, in the
opinion of Agent, the requirements of Section 2.13(b) hereof.
"Foreign Borrower Revolving Credit Note" shall mean a Foreign Borrower
Revolving Credit Note executed and delivered by a Foreign Borrower pursuant to
Section 2.4(b) hereof.
"Foreign Guarantor of Payment" shall mean each of the Companies set forth
on Schedule 3 hereto that shall have been designated a "Foreign Guarantor of
Payment", that are executing and delivering a Guaranty of Payment on or as of
the Closing Date, or any other Foreign Subsidiary that shall execute and deliver
a Guaranty of Payment to Agent subsequent to the Closing Date.
"Foreign Subsidiary" shall mean a Subsidiary that is organized outside of
the United States.
"Fronting Lender" shall mean, as to any Letter of Credit transaction
hereunder, Agent as issuer of the Letter of Credit, or, in the event that Agent
either shall be unable to issue or shall agree that another Lender may issue a
Letter of Credit, such other Lender as shall agree to issue the Letter of Credit
in its own name, but on behalf of the Lenders hereunder.
"FX Trading Office" shall mean the Chicago office of Agent, or such other
office of Agent or its parent, ABN AMRO, as Agent may designate from time to
time.
"GAAP" shall mean generally accepted accounting principles in the United
States as then in effect, which shall include the official interpretations
thereof by the Financial Accounting Standards Board, applied on a basis
consistent with the past accounting practices and procedures of Agilysys.
"Governmental Authority" shall mean any nation or government, any state,
province or territory or other political subdivision thereof, any governmental
agency, department, authority, instrumentality, regulatory body, court, central
bank or other governmental entity exercising executive, legislative, judicial,
taxing, regulatory or administrative functions of or pertaining to government,
any securities exchange and any self-regulatory organization.
"Guarantor" shall mean a Person that shall have pledged its credit or
property in any manner for the payment or other performance of the indebtedness,
contract or other obligation of another and includes (without limitation) any
guarantor (whether of payment or of collection), surety, co-maker, endorser or
Person that shall have agreed conditionally or otherwise to make any purchase,
loan or investment in order thereby to enable another to prevent or correct a
default of any kind.
14
"Guarantor of Payment" shall mean a Domestic Guarantor of Payment or
Foreign Guarantor of Payment, or any other Person that shall deliver a Guaranty
of Payment to Agent subsequent to the Closing Date.
"Guaranty Documents" shall mean that term as defined in Section 2.11
hereof.
"Guaranty Effectiveness Date" shall mean the date on which the Senior
Unsecured Notes are paid in full.
"Guaranty of Payment" shall mean each Guaranty of Payment executed and
delivered on or after the Closing Date in connection with this Agreement by the
Guarantors of Payment, as the same may from time to time be amended, restated or
otherwise modified.
"Hedge Agreement" shall mean any (a) hedge agreement, interest rate swap,
cap, collar or floor agreement, or other interest rate management device entered
into by a Company with any Person in connection with any Indebtedness of such
Company, or (b) currency swap agreement, forward currency purchase agreement or
similar arrangement or agreement designed to protect against fluctuations in
currency exchange rates entered into by a Company.
"Indebtedness" shall mean, for any Company (excluding in all cases trade
payables payable in the ordinary course of business by such Company), without
duplication, (a) all obligations to repay borrowed money, direct or indirect,
incurred, assumed, or guaranteed, (b) all obligations for the deferred purchase
price of capital assets, (c) all obligations under conditional sales or other
title retention agreements, (d) all obligations (contingent or otherwise) under
any letter of credit or banker's acceptance, (e) all net obligations under any
currency swap agreement, interest rate swap, cap, collar or floor agreement or
other interest rate management device or any Hedge Agreement, (f) all synthetic
leases, (g) all lease obligations that have been or should be capitalized on the
books of such Company in accordance with GAAP, (h) all obligations of such
Company with respect to asset securitization financing programs to the extent
that there is recourse against such Company or such Company is liable
(contingent or otherwise) under any such program, (i) all obligations to advance
funds to, or to purchase assets, property or services from, any other Person in
order to maintain the financial condition of such Person, (j) all indebtedness
of any partnership in which such Company is a general partner, (k) any other
transaction (including forward sale or purchase agreements) having the
commercial effect of a borrowing of money entered into by such Company to
finance its operations or capital requirements, and (l) any guaranty of any
obligation described in subparts (a) through (k) hereof.
"Interest Adjustment Date" shall mean the last day of each Interest Period.
"Interest Period" shall mean, with respect to a LIBOR Fixed Rate Loan, the
period commencing on the date such LIBOR Fixed Rate Loan is made and ending on
the last day of such period, as selected by Administrative Borrower (or the
appropriate Foreign Borrower) pursuant to the provisions hereof, and, thereafter
(unless, with respect to a Eurodollar Loan, such LIBOR Fixed Rate Loan is
converted to a Base Rate Loan), each subsequent period commencing on the first
day after the immediately preceding Interest Period and ending on the last day
of such period, as selected by Administrative Borrower (or the appropriate
Foreign Borrower)
15
pursuant to the provisions hereof. The duration of each Interest Period for a
LIBOR Fixed Rate Loan shall be one month, two months, three months or six
months, in each case as Administrative Borrower (or the appropriate Foreign
Borrower) may select upon notice, as set forth in Section 2.5 hereof; provided
that (a) if Administrative Borrower (or the appropriate Foreign Borrower) shall
fail to so select the duration of any Interest Period for a Eurodollar Loan at
least three Business Days prior to the Interest Adjustment Date applicable to
such Eurodollar Loan, Borrowers shall be deemed to have converted such
Eurodollar Loan to a Base Rate Loan at the end of the then current Interest
Period; and (b) each Alternate Currency Loan must be repaid on the last day of
the Interest Period applicable thereto.
"Inventory" shall mean all inventory, as defined in the U.C.C.
"Lender" shall mean that term as defined in the first paragraph hereof.
"Letter of Credit" shall mean a standby letter of credit that shall be
issued by the Fronting Lender for the account of a Borrower or Guarantor of
Payment, including amendments thereto, if any, and shall have an expiration date
no later than the earlier of (a) one year after its date of issuance (provided
that such Letter of Credit may provide for the renewal thereof for additional
one year periods), or (b) seven days prior to the last day of the Commitment
Period.
"Letter of Credit Commitment" shall mean the commitment of the Fronting
Lender, on behalf of the Lenders, to issue Letters of Credit in an aggregate
face amount of up to Twenty Million Dollars ($20,000,000).
"Letter of Credit Exposure" shall mean, at any time, the Dollar Equivalent
of the sum of (a) the aggregate undrawn amount of all issued and outstanding
Letters of Credit, and (b) the aggregate of the draws made on Letters of Credit
that have not been reimbursed by Borrowers or converted to a Revolving Loan
pursuant to Section 2.2(b)(v) hereof.
"Leverage Ratio" shall mean, as determined on a Consolidated basis and in
accordance with GAAP, the ratio of (a) Consolidated Funded Indebtedness (as
determined on the last day of the most recently completed fiscal quarter of
Agilysys) to (b) Consolidated EBITDA (for the most recently completed four
fiscal quarters of Agilysys.
"LIBOR Fixed Rate Loan" shall mean a Eurodollar Loan or an Alternate
Currency Loan.
"Lien" shall mean any mortgage, deed of trust, security interest, lien
(statutory or other), charge, assignment, hypothecation, encumbrance on, pledge
or deposit of, or conditional sale, leasing (other than operating leases), sale
with a right of redemption or other title retention agreement and any
capitalized lease with respect to any property (real or personal) or asset.
"Liquidity Ratio" shall mean, as determined on the last day of the most
recently completed fiscal quarter of Agilysys, as determined on a Consolidated
basis and in accordance with GAAP, the ratio of (a) an amount equal to the sum
of (i) cash and Cash Equivalent Investments of the Companies, (ii) accounts
receivable of the Companies (excluding accounts receivable due from any
Affiliate, shareholder or employee of a Company), and (iii) the lesser of
16
(A) Inventory of the Companies, or (B) Seventy-Five Million Dollars
($75,000,000); to (b) the sum of (i) the aggregate amount outstanding under the
Agreement for Inventory Financing, and (ii) the Revolving Credit Exposure.
"Loan" shall mean a Revolving Loan or Swing Loan granted to Borrowers by
the Lenders in accordance with Section 2.2(a) or (c) hereof.
"Loan Documents" shall mean, collectively, this Agreement, each Note, each
Guaranty of Payment, all documentation relating to each Letter of Credit, each
Pledge Agreement, if any, the Agent Fee Letter and the Closing Fee Letter, as
any of the foregoing may from time to time be amended, restated or otherwise
modified or replaced, and any other document delivered pursuant thereto.
"Master Letter of Credit Agreement" shall mean the Master Letter of Credit
Agreement in the form of the attached Exhibit H.
"Material Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Companies taken as a whole, (b) the ability of a Borrower or any other Credit
Party to perform its obligations under the Loan Documents, or (c) the validity
or enforceability of this Agreement or any of the other Loan Documents or the
rights and remedies of Agent or the Lenders hereunder or thereunder.
"Material Indebtedness Agreement" shall mean any debt instrument, lease
(capital, operating or otherwise), guaranty, contract, commitment, agreement or
other arrangement evidencing or entered into in connection with any Indebtedness
of any Company or the Companies in excess of the amount of Fifteen Million
Dollars ($15,000,000).
"Maximum Amount" shall mean, for each Lender, the amount set forth opposite
such Lender's name under the column headed "Maximum Amount" as set forth on
Schedule 1 hereto, subject to decreases determined pursuant to Section 2.8(c)
hereof and assignments of interests pursuant to Section 10.10 hereof; provided,
however, that the Maximum Amount for the Swing Line Lender shall exclude the
Swing Line Commitment (other than its pro rata share), and the Maximum Amount of
the Fronting Lender shall exclude the Letter of Credit Commitment (other than
its pro rata share).
"Maximum Rate" shall mean that term as defined in Section 2.3(d) hereof.
"Moody's" shall mean Moody's Investors Service, Inc., or any successor to
such company.
"Moody's Rating" means, at any time, the then current rating (including the
failure to rate) by Moody's of Agilysys' unsecured corporate credit rating.
"Multiemployer Plan" shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of ERISA.
17
"Non-Credit Party" shall mean a Company that is not a Credit Party.
"Non-Credit Party Exposure" shall mean the aggregate amount, incurred on or
after the Closing Date, of loans by a Credit Party to, investments by a Credit
Party in, guaranties by a Credit Party of Indebtedness of, and Letters of Credit
issued to or for the benefit of, a Company that is a Non-Credit Party.
"Note" shall mean each Revolving Credit Note or the Swing Line Note, or any
other promissory note delivered pursuant to this Agreement.
"Notice of Loan" shall mean a Notice of Loan in the form of the attached
Exhibit D.
"Obligations" shall mean, collectively, (a) all Indebtedness and other
obligations incurred by a Borrower to Agent, the Fronting Lender, the Swing Line
Lender, or any Lender pursuant to this Agreement and the other Loan Documents,
and includes the principal of and interest on all Loans and all obligations
pursuant to Letters of Credit, (b) each extension, renewal or refinancing of the
foregoing, in whole or in part, (c) the facility and other fees and any
prepayment fees payable hereunder, and (d) all fees and charges in connection
with Letters of Credit.
"Obligor Asset Ratio" shall mean, at any time, the ratio of (a) the sum of
the assets (in each case for each such Company only, on a non-consolidated
basis) of each US Borrower, each Domestic Guarantor of Payment and each Pledged
Foreign Subsidiary, to (b) the Consolidated total assets of Agilysys, as
determined in accordance with GAAP.
"Obligor EBITDA Ratio" shall mean, at any time, the ratio of (a) the sum of
the EBITDA (in each case for each such Company only, on a non-consolidated
basis) of each US Borrower, each Domestic Guarantor of Payment and each Pledged
Foreign Subsidiary (for the most recently completed four fiscal quarters of
Agilysys), to (b) Consolidated EBITDA (for the most recently completed four
fiscal quarters of Agilysys).
"Organizational Documents" shall mean, with respect to any Person (other
than an individual), such Person's Articles (Certificate) of Incorporation,
operating agreement or equivalent formation documents, and Regulations (Bylaws),
or equivalent governing documents, and any amendments to any of the foregoing.
"Other Taxes" shall mean any and all present or future stamp or documentary
taxes or any other excise, ad valorem or property taxes, goods and services
taxes, harmonized sales taxes and other sales taxes, use taxes, value added
taxes, charges or similar taxes or levies (other than Excluded Taxes) arising
from any payment made hereunder or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan Document.
"Participant" shall mean that term as defined in Section 10.11 hereof.
"Patriot Act" shall mean Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, USA
Patriot Act, Title III of Pub. L. 107-56, signed into law October 26, 2001, as
amended from time to time.
18
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or its
successor.
"Pension Plan" shall mean an ERISA Plan that is a "pension plan" (within
the meaning of ERISA Section 3(2)).
"Permitted Foreign Subsidiary Loans and Investments" shall mean:
(a) the investments by Agilysys or a Domestic Subsidiary in a Foreign
Subsidiary (that is not a Credit Party), in such amounts existing as of the
Closing Date and set forth on Schedule 5.11 hereto;
(b) the loans by Agilysys or a Domestic Subsidiary to a Foreign
Subsidiary (that is not a Credit Party), in such amounts existing as of the
Closing Date and set forth on Schedule 5.11 hereto;
(c) any investment by a Foreign Subsidiary in, or loan from a Foreign
Subsidiary to, or guaranty from a Foreign Subsidiary of Indebtedness of, a
Company that is a Credit Party; and
(d) any Non-Credit Party Exposure, so long as the Non-Credit Party
Exposure does not exceed the aggregate amount of Thirty Million Dollars
($30,000,000) at any time outstanding.
"Permitted Investment" shall mean an investment of a Company in the stock
(or other debt or equity instruments) of a Person (other than a Company or a
Person that will become a Company immediately after giving effect to such
investment), so long as (a) the Company making the investment is a Credit Party
or a Foreign Subsidiary; and (b) in addition to those existing on the Closing
Date and listed on Schedule 5.11 hereto, the aggregate amount of all such
investments of all Companies does not exceed, at any time, an aggregate amount
(as determined when each such investment is made) of Twenty-Five Million Dollars
($25,000,000).
"Person" shall mean any individual, sole proprietorship, partnership, joint
venture, unincorporated organization, corporation, limited liability company,
unlimited liability company, institution, trust, estate, government or other
agency or political subdivision thereof or any other entity.
"Pledge Agreement" shall mean each of the Pledge Agreements, relating to
the Pledged Securities, executed and delivered by a US Borrower or a Domestic
Guarantor of Payment, as applicable, in favor of Agent, for the benefit of the
Lenders, dated on or after the Closing Date, and any other Pledge Agreement
executed by any other Domestic Subsidiary on or after the Closing Date, as any
of the foregoing may from time to time be amended, restated or otherwise
modified.
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"Pledged Foreign Subsidiary" shall mean a first-tier Foreign Subsidiary
whose capital stock (in an amount not to exceed sixty-five percent (65%)) has
been pledged to Agent, for the benefit of the Lenders.
"Pledged Securities" shall mean up to sixty-five percent (65%) of the
shares of capital stock or other equity interest of any Foreign Subsidiary.
(Schedule 5 hereto lists, as of the Closing Date, all of the Pledged
Securities.)
"Prime Rate" shall mean, for any day, the rate of interest in effect for
such day as publicly announced from time to time by Agent as its prime rate
(whether or not such rate is actually charged by Agent). Any change in the Prime
Rate announced by Agent shall take effect at the opening of business on the day
specified in the public announcement of such change.
"Register" shall mean that term as defined in Section 10.10(i) hereof.
"Regularly Scheduled Payment Date" shall mean the last day of each March,
June, September and December of each year.
"Related Writing" shall mean each Loan Document and any other (if any)
assignment, mortgage, security agreement, guaranty agreement, subordination
agreement, financial statement, audit report or other writing furnished by any
Credit Party, or any of its officers, to Agent or the Lenders pursuant to or
otherwise in connection with this Agreement.
"Reportable Event" shall mean any of the events described in Section 4043
of ERISA except where notice is waived by the PBGC.
"Requested Availability" shall mean that term as defined in Section 2.13(b)
hereof.
"Required Lenders" shall mean the holders of at least fifty-one percent
(51%), based upon each Lender's Commitment Percentage, of (a) the Total
Commitment Amount, or, (b) after the Commitment Period, the aggregate amount of
the Revolving Credit Exposure (excluding the Swing Line Exposure); provided
that, if there shall be two or more Lenders, Required Lenders shall constitute
at least two Lenders.
"Requirement of Law" shall mean, as to any Person, any law, treaty, rule or
regulation or determination or policy statement or interpretation of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property.
"Restricted Payment" shall mean, with respect to any Company, (a) any
Capital Distribution, or (b) any amount paid by such Company in repayment,
redemption, retirement or repurchase, directly or indirectly, of any
Subordinated Indebtedness (other than Subordinated Indebtedness refinanced or
repaid with respect to an Acquisition permitted pursuant to this Agreement).
20
"Revolving Credit Commitment" shall mean the obligation hereunder, during
the Commitment Period, of (a) each Lender to make Revolving Loans up to the
Maximum Amount for such Lender, (b) the Fronting Lender to issue and each Lender
to participate in Letters of Credit pursuant to the Letter of Credit Commitment,
and (c) the Swing Line Lender to make and each Lender to participate in Swing
Loans pursuant to the Swing Line Commitment.
"Revolving Credit Exposure" shall mean, at any time, the Dollar Equivalent
of the sum of (a) the aggregate principal amount of all Revolving Loans
outstanding, (b) the Swing Line Exposure, and (c) the Letter of Credit Exposure.
"Revolving Credit Note" shall mean a US Borrower Revolving Credit Note or a
Foreign Borrower Revolving Credit Note.
"Revolving Loan" shall mean a Loan granted to US Borrowers or a Foreign
Borrower by the Lenders in accordance with Section 2.2(a) hereof.
"S&P Rating" shall mean, at any time, the then current rating (including
the failure to rate) by Standard & Poor's of Agilysys' unsecured corporate
credit rating.
"SEC" shall mean the United States Securities and Exchange Commission, or
any governmental body or agency succeeding to any of its principal functions.
"Senior Notes Indenture" shall mean that certain Indenture, dated as of
August 1, 1996, of Agilysys to U.S. Bank, N.A. (formerly known as Star Bank,
N.A.), as trustee, as the same may from time to time be amended, restated or
otherwise modified.
"Senior Unsecured Notes" shall mean the nine and one-half percent (9 1/2%)
senior notes of Agilysys, due August 2006, issued in the aggregate original
principal amount of One Hundred Fifty Million Dollars ($150,000,000), under the
Senior Notes Indenture.
"Significant Asset Disposition" shall mean a Disposition or a related
series of Dispositions in which the aggregate fair market value or book value,
whichever is greater, of the assets sold, leased, transferred or otherwise
disposed of shall be greater than or equal to five percent (5%) of the
Consolidated total assets of the Companies.
"Spot Rate" shall mean, for any currency, the rate quoted by Agent as the
spot rate for the purchase by Agent of such currency at the prevailing interbank
rate with another currency through its FX Trading Office at approximately 9:00
A.M. (Eastern time) on the date two Business Days prior to the date as of which
the foreign exchange computation is made.
"Standard & Poor's" shall mean Standard & Poor's Ratings Group, a division
of McGraw-Hill, Inc., or any successor to such company.
"Subordinated" shall mean, as applied to Indebtedness, Indebtedness that
shall have been subordinated (by written terms or written agreement being, in
either case, in form and substance
21
satisfactory to Agent and the Required Lenders) in favor of the prior payment in
full of the Obligations.
"Subsidiary" shall mean (a) a corporation more than fifty percent (50%) of
the Voting Power of which is owned, directly or indirectly, by a Borrower or by
one or more other subsidiaries of such Borrower or by such Borrower and one or
more subsidiaries of such Borrower, (b) a partnership, limited liability company
or unlimited liability company of which a Borrower, one or more other
subsidiaries of such Borrower or such Borrower and one or more subsidiaries of
such Borrower, directly or indirectly, is a general partner or managing member,
as the case may be, or otherwise has an ownership interest greater than fifty
percent (50%) of all of the ownership interests in such partnership, limited
liability company or unlimited liability company, or (c) any other Person (other
than a corporation, partnership, limited liability company or unlimited
liability company) in which a Borrower, one or more other subsidiaries of such
Borrower or such Borrower and one or more subsidiaries of such Borrower,
directly or indirectly, has at least a majority interest in the Voting Power or
the power to elect or direct the election of a majority of directors or other
governing body of such Person.
"Subsidiary Borrower" shall mean a Borrower other than Agilysys.
"Swing Line Commitment" shall mean the commitment of the Swing Line Lender
to make Swing Loans to US Borrowers up to the aggregate amount at any time
outstanding of Twenty Million Dollars ($20,000,000).
"Swing Line Exposure" shall mean, at any time, the aggregate principal
amount of all Swing Loans outstanding.
"Swing Line Lender" shall mean LaSalle Bank National Association, as holder
of the Swing Line Commitment.
"Swing Line Note" shall mean the Swing Line Note executed and delivered
pursuant to Section 2.4(c) hereof.
"Swing Loan" shall mean a loan that shall be denominated in Dollars granted
to US Borrowers by the Swing Line Lender under the Swing Line Commitment, in
accordance with Section 2.2(c) hereof.
"Swing Loan Maturity Date" shall mean, with respect to any Swing Loan, the
earlier of (a) thirty (30) days after the date such Swing Loan is made, or (b)
the last day of the Commitment Period.
"Taxes" shall mean any and all present or future taxes of any kind,
including but not limited to, levies, imposts, duties, surtaxes, charges, fees,
deductions or withholdings now or hereafter imposed, levied, collected, withheld
or assessed by any Governmental Authority (together with any interest,
penalties, fines, additions to taxes or similar liabilities with respect
thereto) other than Excluded Taxes.
22
"Total Commitment Amount" shall mean the principal amount of Two Hundred
Million Dollars ($200,000,000).
"U.C.C." shall mean the Uniform Commercial Code, as in effect from time to
time in Ohio.
"U.C.C. Financing Statement" shall mean a financing statement filed or to
be filed in accordance with the Uniform Commercial Code, as in effect from time
to time, in the relevant state or states.
"US Borrower" shall mean Agilysys and each of the Domestic Subsidiaries of
Agilysys set forth on Schedule 2 hereto, together with any other Domestic
Subsidiary of Agilysys that, on or after the Closing Date, shall have satisfied,
in the opinion of Agent, the requirements of Section 2.13(a) hereof.
"US Borrower Revolving Credit Note" shall mean a US Borrower Revolving
Credit Note executed and delivered by US Borrowers pursuant to Section 2.4(a)
hereof.
"Voting Power" shall mean, with respect to any Person, the exclusive
ability to control, through the ownership of shares of capital stock,
partnership interests, membership interests or otherwise, the election of
members of the board of directors or other similar governing body of such
Person. The holding of a designated percentage of Voting Power of a Person means
the ownership of shares of capital stock, partnership interests, membership
interests or other interests of such Person sufficient to control exclusively
the election of that percentage of the members of the board of directors or
similar governing body of such Person.
"Welfare Plan" shall mean an ERISA Plan that is a "welfare plan" within the
meaning of ERISA Section 3(l).
Section 1.2. Accounting Terms. Any accounting term not specifically defined
in this Article I shall have the meaning ascribed thereto by GAAP.
Section 1.3. Terms Generally. The foregoing definitions shall be applicable
to the singular and plurals of the foregoing defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
Section 2.1. Amount and Nature of Credit.
(a) Subject to the terms and conditions of this Agreement, the Lenders,
during the Commitment Period and to the extent hereinafter provided, shall make
Loans to Borrowers, participate in Swing Loans made by the Swing Line Lender to
US Borrowers, and issue or participate in Letters of Credit at the request of
Administrative Borrower, in such aggregate amount as Borrowers shall request
pursuant to the Commitment; provided, however, that in no event shall the
Revolving Credit Exposure be in excess of the Total Commitment Amount.
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(b) Each Lender, for itself and not one for any other, agrees to make
Loans, participate in Swing Loans, and issue or participate in Letters of
Credit, during the Commitment Period, on such basis that, immediately after the
completion of any borrowing by Borrowers or the issuance of a Letter of Credit:
(i) the Dollar Equivalent of the aggregate outstanding principal
amount of Loans made by such Lender (other than Swing Loans made by the
Swing Line Lender), when combined with such Lender's pro rata share, if
any, of the Letter of Credit Exposure and the Swing Line Exposure, shall
not be in excess of the Maximum Amount for such Lender; and
(ii) the aggregate outstanding principal amount of Loans (other than
Swing Loans) made by such Lender shall represent that percentage of the
aggregate principal amount then outstanding on all Loans (other than Swing
Loans) that shall be such Lender's Commitment Percentage.
Each borrowing (other than Swing Loans which shall be risk participated on a pro
rata basis) from the Lenders shall be made pro rata according to the respective
Commitment Percentages of the Lenders.
(c) The Loans may be made as Revolving Loans as described in Section 2.2(a)
hereof and as Swing Loans as described in Section 2.2(c) hereof, and Letters of
Credit may be issued in accordance with Section 2.2(b) hereof.
Section 2.2. Revolving Credit.
(a) Revolving Loans. Subject to the terms and conditions of this Agreement,
during the Commitment Period, the Lenders shall make a Revolving Loan or
Revolving Loans to US Borrowers or a Foreign Borrower in such amount or amounts
as Administrative Borrower may from time to time request, but not exceeding in
aggregate principal amount at any time outstanding hereunder the Total
Commitment Amount, when such Revolving Loans are combined with the Letter of
Credit Exposure and the Swing Line Exposure; provided, however, that Borrowers
shall not request any Alternate Currency Loan (and the Lenders shall not be
obligated to make an Alternate Currency Loan) if, after giving effect thereto,
the Alternate Currency Exposure would exceed the Alternate Currency Maximum
Amount. Borrowers shall have the option, subject to the terms and conditions set
forth herein, to borrow Revolving Loans, maturing on the last day of the
Commitment Period, by means of any combination of Base Rate Loans, Eurodollar
Loans or Alternate Currency Loans. With respect to each Alternate Currency Loan,
subject to the other provisions of this Agreement, US Borrowers or the
appropriate Foreign Borrower, as applicable, shall receive all of the proceeds
of such Alternate Currency Loan in one Alternate Currency and repay such
Alternate Currency Loan in the same Alternate Currency. Subject to the
provisions of this Agreement, Borrowers shall be entitled under this Section
2.2(a) to borrow funds, repay the same in whole or in part and re-borrow
hereunder at any time and from time to time during the Commitment Period.
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(b) Letters of Credit.
(i) Generally. Subject to the terms and conditions of this Agreement,
during the Commitment Period, the Fronting Lender shall, in its own name,
on behalf of the Lenders, issue such Letters of Credit for the account of a
Credit Party, as Administrative Borrower may from time to time request.
Administrative Borrower shall not request any Letter of Credit (and the
Fronting Lender shall not be obligated to issue any Letter of Credit) if,
after giving effect thereto, (A) the Letter of Credit Exposure would exceed
the Letter of Credit Commitment, (B) the Revolving Credit Exposure would
exceed the Total Commitment Amount, or (C) with respect to a request for a
Letter of Credit to be issued in an Alternate Currency, the Alternate
Currency Exposure would exceed the Alternate Currency Maximum Amount. The
issuance of each Letter of Credit shall confer upon each Lender the
benefits and liabilities of a participation consisting of an undivided pro
rata interest in the Letter of Credit to the extent of such Lender's
Commitment Percentage. Unless otherwise agreed by Agent as the Fronting
Lender, in the event of a conflict between this Agreement and the Master
Letter of Credit Agreement, which conflict cannot be reasonably resolved to
give meaning to the provisions of both agreements, this Agreement will
control.
(ii) Request for Letter of Credit. Each request for a Letter of Credit
shall be delivered to Agent (and to the Fronting Lender, if the Fronting
Lender is a Lender other than Agent) by an Authorized Officer not later
than 12:00 noon (Eastern time) three Business Days prior to the day upon
which the Letter of Credit is to be issued. Each such request shall be in a
form acceptable to Agent (and the Fronting Lender, if the Fronting Lender
is a Lender other than Agent) and shall specify the face amount thereof,
the account party, the beneficiary, the intended date of issuance, the
expiry date thereof, the Alternate Currency if other than Dollars are
requested, and the nature of the transaction to be supported thereby.
Concurrently with each such request, Administrative Borrower, and any
Credit Party for whose account the Letter of Credit is to be issued, shall
execute and deliver to the Fronting Lender an appropriate application and
agreement, being in the standard form of the Fronting Lender for such
letters of credit (which as of the Closing Date is, with respect to Agent
as the Fronting Lender, the Master Letter of Credit Agreement), as amended
to conform to the provisions of this Agreement if required by Agent. Agent
shall give the Fronting Lender and each Lender notice of each such request
for a Letter of Credit.
(iii) Standby Letters of Credit. With respect to each Letter of Credit
and the drafts thereunder, if any, whether issued for the account of a
Borrower or any other Credit Party, US Borrowers agree (and each Foreign
Borrower agrees to pay, with respect to Letters of Credit issued for its
own account) to (A) pay to Agent, for the pro rata benefit of the Lenders,
a non-refundable commission based upon the face amount of such Letter of
Credit, which shall be paid quarterly in arrears, on each Regularly
Scheduled Payment Date, at a rate per annum equal to the Applicable Margin
for LIBOR Fixed Rate Loans (in effect on the Regularly Scheduled Payment
Date) multiplied by the face amount of such Letter of Credit; (B) pay to
Agent, for the sole benefit of the Fronting Lender, an additional Letter of
Credit fee, which shall be paid on each date that such
25
Letter of Credit shall be issued, amended or renewed at the rate of
one-eighth percent (1/8%) of the face amount of such Letter of Credit; and
(C) pay to Agent, for the sole benefit of the Fronting Lender, such other
issuance, amendment, negotiation, draw, acceptance, telex, courier, postage
and similar transactional fees as are generally charged by the Fronting
Lender under its fee schedule as in effect from time to time.
(iv) Refunding of Letters of Credit with Revolving Loans. Whenever a
Letter of Credit shall be drawn, US Borrowers, and any Foreign Borrower for
whose account such Letter of Credit was issued, shall immediately reimburse
the Fronting Lender for the amount drawn. In the event that the amount
drawn is not in an Alternate Currency and shall not have been reimbursed by
such Borrowers, as applicable, within one Business Day of the drawing of
such Letter of Credit, at the sole option of Agent (and the Fronting
Lender, if the Fronting Lender is a Lender other than Agent), Borrowers
shall be deemed to have requested a Revolving Loan, subject to the
provisions of Sections 2.2(a) and 2.5 hereof (other than the requirement
set forth in Section 2.5(d) hereof), in the amount drawn. Such Revolving
Loan shall be evidenced by the Revolving Credit Notes (or, if a Lender has
not requested a Revolving Credit Note, by the records of Agent and such
Lender). Each Lender agrees to make a Revolving Loan on the date of such
notice, subject to no conditions precedent whatsoever. Each Lender
acknowledges and agrees that its obligation to make a Revolving Loan
pursuant to Section 2.2(a) hereof when required by this Section 2.2(b)(iv)
shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the occurrence and
continuance of a Default or Event of Default, and that its payment to
Agent, for the account of the Fronting Lender, of the proceeds of such
Revolving Loan shall be made without any offset, abatement, recoupment,
counterclaim, withholding or reduction whatsoever and whether or not such
Lender's Revolving Credit Commitment shall have been reduced or terminated.
Borrowers irrevocably authorize and instruct Agent to apply the proceeds of
any borrowing pursuant to this Section 2.2(b)(iv) to reimburse, in full
(other than the Fronting Lender's pro rata share of such borrowing), the
Fronting Lender for the amount drawn on such Letter of Credit. Each such
Revolving Loan shall be deemed to be a Base Rate Loan unless otherwise
requested by and available to Borrowers hereunder. Each Lender is hereby
authorized to record on its records relating to its Revolving Credit Note
(or, if such Lender has not requested a Revolving Credit Note, its records
relating to Revolving Loans) such Lender's pro rata share of the amounts
paid and not reimbursed on the Letters of Credit.
(v) Participation in Letters of Credit. If, for any reason, Agent (and
the Fronting Lender if the Fronting Lender is a Lender other than Agent)
shall be unable to or, in the opinion of Agent, it shall be impracticable
to, convert any Letter of Credit to a Revolving Loan pursuant to the
preceding subsection, or if the amount not reimbursed is a Letter of Credit
drawn in an Alternate Currency, Agent (and the Fronting Lender if the
Fronting Lender is a Lender other than Agent) shall have the right to
request that each Lender purchase a participation in the amount due with
respect to such Letter of Credit, and Agent shall promptly notify each
Lender thereof (by facsimile or telephone, confirmed in writing). Upon such
notice, but without further action, the Fronting Lender hereby agrees to
grant to each Lender, and each Lender hereby agrees to acquire from the
26
Fronting Lender, an undivided participation interest in the amount due with
respect to such Letter of Credit in an amount equal to such Lender's
Commitment Percentage of the principal amount due with respect to such
Letter of Credit. In consideration and in furtherance of the foregoing,
each Lender hereby absolutely and unconditionally agrees, upon receipt of
notice as provided above, to pay to Agent, for the account of the Fronting
Lender, such Lender's ratable share of the amount due with respect to such
Letter of Credit (determined in accordance with such Lender's Commitment
Percentage). Each Lender acknowledges and agrees that its obligation to
acquire participations in the amount due under any Letter of Credit that is
drawn but not reimbursed by Borrowers pursuant to this Section 2.2(b)(v)
shall be absolute and unconditional and shall not be affected by any
circumstance whatsoever, including, without limitation, the occurrence and
continuance of a Default or Event of Default, and that each such payment
shall be made without any offset, abatement, recoupment, counterclaim,
withholding or reduction whatsoever and whether or not such Lender's
Revolving Credit Commitment shall have been reduced or terminated. Each
Lender shall comply with its obligation under this Section 2.2(b)(v) by
wire transfer of immediately available funds (in Dollars, except in the
case of a Letter of Credit issued and drawn in an Alternate Currency, and,
in such case, in such Alternate Currency), in the same manner as provided
in Section 2.5 hereof with respect to Revolving Loans. Each Lender is
hereby authorized to record on its records such Lender's pro rata share of
the amounts paid and not reimbursed on the Letters of Credit.
(c) Swing Loans.
(i) Generally. Subject to the terms and conditions of this Agreement,
during the Commitment Period, the Swing Line Lender shall make a Swing Loan
or Swing Loans to US Borrowers in such amount or amounts as Administrative
Borrower, through an Authorized Officer, may from time to time request;
provided that Administrative Borrower shall not request any Swing Loan if,
after giving effect thereto, (A) the Revolving Credit Exposure would exceed
the Total Commitment Amount, or (B) the Swing Line Exposure would exceed
the Swing Line Commitment. Each Swing Loan shall be due and payable on the
Swing Loan Maturity Date applicable thereto. US Borrowers shall not request
that more than two Swing Loans be outstanding at any time. Each Swing Loan
shall be made in Dollars.
(ii) Refunding of Swing Loans. If the Swing Line Lender so elects, by
giving notice to Administrative Borrower and the Lenders, US Borrowers
agree that the Swing Line Lender shall have the right, in its sole
discretion, to require that any Swing Loan be refinanced as a Revolving
Loan. Such Revolving Loan shall be a Base Rate Loan unless otherwise
requested by and available to US Borrowers hereunder. Upon receipt of such
notice by US Borrowers and the Lenders, US Borrowers shall be deemed, on
such day, to have requested a Revolving Loan in the principal amount of the
Swing Loan in accordance with Sections 2.2(a) and 2.5 hereof (other than
the requirement set forth in Section 2.5(d) hereof). Such Revolving Loan
shall be evidenced by the US Borrower Revolving Credit Notes (or, if a
Lender has not requested a US Borrower Revolving Credit Note, by the
records of Agent and such Lender). Each Lender agrees to make a
27
Revolving Loan on the date of such notice, subject to no conditions
precedent whatsoever. Each Lender acknowledges and agrees that such
Lender's obligation to make a Revolving Loan pursuant to Section 2.2(a)
hereof when required by this Section 2.2(c)(ii) is absolute and
unconditional and shall not be affected by any circumstance whatsoever,
including, without limitation, the occurrence and continuance of a Default
or Event of Default, and that its payment to Agent, for the account of the
Swing Line Lender, of the proceeds of such Revolving Loan shall be made
without any offset, abatement, recoupment, counterclaim, withholding or
reduction whatsoever and whether or not such Lender's Revolving Credit
Commitment shall have been reduced or terminated. US Borrowers irrevocably
authorize and instruct Agent to apply the proceeds of any borrowing
pursuant to this Section 2.2(c)(ii) to repay in full such Swing Loan. Each
Lender is hereby authorized to record on its records relating to its US
Borrower Revolving Credit Note (or, if such Lender has not requested a US
Borrower Revolving Credit Note, its records relating to Revolving Loans)
such Lender's pro rata share of the amounts paid to refund such Swing Loan.
(iii) Participation in Swing Loans. If, for any reason, Agent is
unable to or, in the opinion of Agent, it is impracticable to, convert any
Swing Loan to a Revolving Loan pursuant to the preceding Section
2.2(c)(ii), then on any day that a Swing Loan is outstanding (whether
before or after the maturity thereof), Agent shall have the right to
request that each Lender purchase a participation in such Swing Loan, and
Agent shall promptly notify each Lender thereof (by facsimile or telephone,
confirmed in writing). Upon such notice, but without further action, the
Swing Line Lender hereby agrees to grant to each Lender, and each Lender
hereby agrees to acquire from the Swing Line Lender, an undivided
participation interest in such Swing Loan in an amount equal to such
Lender's Commitment Percentage of the principal amount of such Swing Loan.
In consideration and in furtherance of the foregoing, each Lender hereby
absolutely and unconditionally agrees, upon receipt of notice as provided
above, to pay to Agent, for the benefit of the Swing Line Lender, such
Lender's ratable share of such Swing Loan (determined in accordance with
such Lender's Commitment Percentage). Each Lender acknowledges and agrees
that its obligation to acquire participations in Swing Loans pursuant to
this Section 2.2(c)(iii) is absolute and unconditional and shall not be
affected by any circumstance whatsoever, including, without limitation, the
occurrence and continuance of a Default or an Event of Default, and that
each such payment shall be made without any offset, abatement, recoupment,
counterclaim, withholding or reduction whatsoever and whether or not such
Lender's Revolving Credit Commitment shall have been reduced or terminated.
Each Lender shall comply with its obligation under this Section 2.2(c)(iii)
by wire transfer of immediately available funds, in the same manner as
provided in Section 2.5 hereof with respect to Revolving Loans to be made
by such Lender.
Section 2.3. Interest.
(a) Revolving Loans.
28
(i) Base Rate Loan. The appropriate Borrower or Borrowers shall pay
interest on the unpaid principal amount of a Base Rate Loan outstanding
from time to time from the date thereof until paid at the Derived Base Rate
from time to time in effect. Interest on such Base Rate Loan shall be
payable, commencing December 31, 2005, and on each Regularly Scheduled
Payment Date thereafter and at the maturity thereof.
(ii) LIBOR Fixed Rate Loans. The appropriate Borrower or Borrowers
shall pay interest on the unpaid principal amount of each LIBOR Fixed Rate
Loan outstanding from time to time, fixed in advance on the first day of
the Interest Period applicable thereto through the last day of the Interest
Period applicable thereto (but subject to changes in the Applicable Margin
for LIBOR Fixed Rate Loans), at the Derived LIBOR Fixed Rate. Interest on
such LIBOR Fixed Rate Loan shall be payable on each Interest Adjustment
Date with respect to an Interest Period (provided that if an Interest
Period shall exceed three months, the interest must be paid every three
months, commencing three months from the beginning of such Interest
Period).
(b) Swing Loans. US Borrowers shall pay interest to Agent, for the sole
benefit of the Swing Line Lender (and any Lender that shall have purchased a
participation in such Swing Loan), on the unpaid principal amount of each Swing
Loan outstanding from time to time from the date thereof until paid at the Base
Rate from time to time in effect. Interest on each Swing Loan shall be payable
on the Swing Loan Maturity Date applicable thereto. Each Swing Loan shall bear
interest for a minimum of one day.
(c) Default Rate. Anything herein to the contrary notwithstanding, if an
Event of Default shall occur, upon the election of the Required Lenders (i) the
principal of each Loan and the unpaid interest thereon shall bear interest,
until paid, at the Default Rate, (ii) the fee for the aggregate undrawn amount
of all issued and outstanding Letters of Credit shall be increased by two
percent (2%) in excess of the rate otherwise applicable thereto, and (iii) in
the case of any other amount not paid when due from Borrowers hereunder or under
any other Loan Document, such amount shall bear interest at the Default Rate;
provided that, during an Event of Default under Section 7.1 or 7.11 hereof, the
applicable Default Rate shall apply without any election or action on the part
of Agent or any Lender.
(d) Limitation on Interest. In no event shall the rate of interest
hereunder exceed the maximum rate allowable by law. Notwithstanding anything to
the contrary contained in any Loan Document, the interest paid or agreed to be
paid under the Loan Documents shall not exceed the maximum rate of non-usurious
interest permitted by applicable law (the "Maximum Rate"). If Agent or any
Lender shall receive interest in an amount that exceeds the Maximum Rate, the
excess interest shall be applied to the principal of the Loans or, if it exceeds
such unpaid principal, refunded to the applicable Borrower. In determining
whether the interest contracted for, charged, or received by Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by applicable
law, (i) characterize any payment that is not principal as an expense, fee, or
premium rather than interest, (ii) exclude voluntary prepayments and the effects
thereof, and (iii) amortize, prorate, allocate, and spread in equal or unequal
parts the total amount of interest throughout the contemplated term of the
Obligations.
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Section 2.4. Evidence of Indebtedness.
(a) US Borrower Revolving Loans. Upon the request of a Lender, to evidence
the obligation of US Borrowers to repay the Base Rate Loans and LIBOR Fixed Rate
Loans made by such Lender and to pay interest thereon, US Borrowers shall
execute a US Borrower Revolving Credit Note in the form of the attached Exhibit
A, payable to the order of such Lender in the principal amount of its Revolving
Credit Commitment or, if less, the aggregate unpaid principal amount of
Revolving Loans made by such Lender; provided, however, that the failure of a
Lender to request a US Borrower Revolving Credit Note shall in no way detract
from US Borrowers' obligations to such Lender hereunder.
(b) Foreign Borrower Revolving Loans. Upon the request of a Lender, to
evidence the obligation of each Foreign Borrower to repay the Base Rate Loans
and LIBOR Fixed Rate Loans made by such Lender and to pay interest thereon, each
such Foreign Borrower shall execute a Foreign Borrower Revolving Credit Note in
the form of the attached Exhibit B, payable to the order of such Lender in the
principal amount of its Revolving Credit Commitment or, if less, the aggregate
unpaid principal amount of Revolving Loans made by such Lender; provided,
however, that the failure of a Lender to request a Foreign Borrower Revolving
Credit Note shall in no way detract from such Foreign Borrower's obligations to
such Lender hereunder.
(c) Swing Loan. Upon the request of the Swing Line Lender, to evidence the
obligation of US Borrowers to repay the Swing Loans and to pay interest thereon,
US Borrowers shall execute a Swing Line Note in the form of the attached Exhibit
C, and payable to the order of the Swing Line Lender in the principal amount of
the Swing Line Commitment, or, if less, the aggregate unpaid principal amount of
Swing Loans made by the Swing Line Lender; provided, however, that the failure
of the Swing Line Lender to request a Swing Line Note shall in no way detract
from US Borrowers' obligations to the Swing Line Lender hereunder.
Section 2.5. Notice of Credit Event; Funding of Loans.
(a) Notice of Credit Event. Administrative Borrower, through an Authorized
Officer, shall provide to Agent a Notice of Loan prior to (i) 12:00 noon
(Eastern time) on the proposed date of borrowing or conversion of any Base Rate
Loan, (ii) 12:00 noon (Eastern time) three Business Days prior to the proposed
date of borrowing, conversion or continuation of any Eurodollar Loan, (iii)
12:00 noon (Eastern time) three Business Days prior to the proposed date of
borrowing of any Alternate Currency Loan, and (iv) 3:00 P.M. (Eastern time) on
the proposed date of borrowing of any Swing Loan. Administrative Borrower shall
comply with the notice provisions set forth in Section 2.2(b)(ii) hereof with
respect to Letters of Credit.
(b) Funding of Loans. Agent shall notify each Lender of the date, amount,
type of currency and Interest Period (if applicable) promptly upon the receipt
of a Notice of Loan, and, in any event, by 2:00 P.M. (Eastern time) on the date
such Notice of Loan is received. On the date that the Credit Event set forth in
such Notice of Loan is to occur, each such Lender shall provide to Agent, not
later than 3:00 P.M. (Eastern time), the amount in Dollars, or, with respect to
an Alternate Currency, in the applicable Alternate Currency, in federal or other
immediately
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available funds, required of it. If Agent shall elect to advance the proceeds of
such Loan prior to receiving funds from such Lender, Agent shall have the right,
upon prior notice to Administrative Borrower, to debit any account of any US
Borrower or otherwise receive such amount from US Borrowers or the appropriate
Foreign Borrower, on demand, in the event that such Lender shall fail to
reimburse Agent in accordance with this subsection. Agent shall also have the
right to receive interest from such Lender at the Federal Funds Effective Rate
in the event that such Lender shall fail to provide its portion of the Loan on
the date requested and Agent shall elect to provide such funds.
(c) Conversion of Loans. At the request of Administrative Borrower to
Agent, subject to the notice and other provisions of this Section 2.5, the
Lenders shall convert a Base Rate Loan to one or more Eurodollar Loans at any
time and shall convert a Eurodollar Loan to a Base Rate Loan on any Interest
Adjustment Date applicable thereto. Swing Loans may be converted by the Swing
Line Lender to Revolving Loans in accordance with Section 2.2(c)(ii) hereof. No
Alternate Currency Loan may be converted to a Base Rate Loan or Eurodollar Loan
and no Base Rate Loan or Eurodollar Loan may be converted to an Alternate
Currency Loan.
(d) Minimum Amount. Each request for:
(i) a Base Rate Loan shall be in an amount of not less than Five
Million Dollars ($5,000,000), increased by increments of One Million
Dollars ($1,000,000);
(ii) a LIBOR Fixed Rate Loan shall be in an amount (or, with respect
to an Alternate Currency Loan, such approximately comparable amount as
shall result in a rounded number) of not less than Five Million Dollars
($5,000,000), increased by increments of One Million Dollars ($1,000,000)
(or, with respect to an Alternate Currency Loan, such approximately
comparable amount as shall result in a rounded number); and
(iii) a Swing Loan shall be in an amount of not less than Five Hundred
Thousand Dollars ($500,000).
(e) Interest Periods. Borrowers shall not request that LIBOR Fixed Rate
Loans be outstanding for more than eight different Interest Periods at the same
time.
Section 2.6. Payment on Loans and Other Obligations.
(a) Payments Generally. Each payment made hereunder by a Credit Party shall
be made without any offset, abatement, recoupment, counterclaim, withholding or
reduction whatsoever.
(b) Payments in Alternate Currency. With respect to any Alternate Currency
Loan or any Alternate Currency Letter of Credit, all payments (including
prepayments) to any Lender of the principal of or interest on such Alternate
Currency Loan or Alternate Currency Letter of Credit shall be made in the same
Alternate Currency as the original Loan or Letter of Credit. All such payments
shall be remitted by Borrowers to Agent, at the address of Agent for notices
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referred to in Section 10.4 hereof, (or at such other office or account as
designated in writing by Agent to Administrative Borrower) for the account of
the Lenders (or the Fronting Lender or the Swing Line Lender, as appropriate)
not later than 12:00 noon (Eastern time) on the due date thereof in same day
funds. Any payments received by Agent after 12:00 noon (Eastern time) shall be
deemed to have been made and received on the next Business Day.
(c) Payments in Dollars. With respect to (i) any Loan (other than an
Alternate Currency Loan), or (ii) any other payment to Agent and the Lenders
that shall not be covered by subsection (b) above, all such payments (including
prepayments) to Agent of the principal of or interest on such Loan or other
payment, including but not limited to principal, interest, fees or any other
amount owed by any Borrower under this Agreement, shall be made in Dollars. All
payments described in this Section 2.6(c) shall be remitted to Agent, at the
address of Agent for notices referred to in Section 10.4 hereof for the account
of the Lenders (or the Fronting Lender or the Swing Line Lender, as appropriate)
not later than 12:00 noon (Eastern time) on the due date thereof in immediately
available funds. Any such payments received by Agent after 11:00 A.M. (Eastern
time) shall be deemed to have been made and received on the next Business Day.
(d) Payments to Lenders. Upon Agent's receipt of payments hereunder, Agent
shall immediately distribute to each Lender (except with respect to Swing Loans,
which shall be paid to the Swing Line Lender or, with respect to Letters of
Credit, certain of which payments shall be paid to the Fronting Lender) its
ratable shares, if any, of the amount of principal, interest, and facility and
other fees received by Agent for the account of such Lender. Payments received
by Agent in Dollars shall be delivered to the Lenders in Dollars in immediately
available funds. Payments received by Agent in any Alternate Currency shall be
delivered to the Lenders in such Alternate Currency in same day funds. Each
Lender shall record any principal, interest or other payment, the principal
amounts of Base Rate Loans, LIBOR Fixed Rate Loans, Swing Loans and Letters of
Credit, the type of currency for each Loan, all prepayments and the applicable
dates, including Interest Periods, with respect to the Loans made, and payments
received by such Lender, by such method as such Lender may generally employ;
provided, however, that failure to make any such entry shall in no way detract
from the obligations of Borrowers under this Agreement or any Note. The
aggregate unpaid amount of Loans, types of Loans, Interest Periods and similar
information with respect to the Loans and Letters of Credit set forth on the
records of Agent shall be rebuttably presumptive evidence with respect to such
information, including the amounts of principal, interest and fees owing to each
Lender.
(e) Timing of Payments. Whenever any payment to be made hereunder,
including, without limitation, any payment to be made on any Loan, shall be
stated to be due on a day that is not a Business Day, such payment shall be made
on the next Business Day and such extension of time shall in each case be
included in the computation of the interest payable on such Loan; provided,
however, that, with respect to a LIBOR Fixed Rate Loan, if the next Business Day
shall fall in the succeeding calendar month, such payment shall be made on the
preceding Business Day and the relevant Interest Period shall be adjusted
accordingly.
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Section 2.7. Prepayment.
(a) Right to Prepay. Borrowers shall have the right at any time or from
time to time to prepay, on a pro rata basis for all of the Lenders, all or any
part of the principal amount of the Revolving Loans then outstanding, as
designated by Administrative Borrower, plus interest accrued on the amount so
prepaid to the date of such prepayment, and any amount payable under Article III
hereof with respect to the amount being prepaid. US Borrowers shall have the
right, at any time or from time to time, to prepay, for the benefit of the Swing
Line Lender (and any Lender that has purchased a participation in such Swing
Loan), all or any part of the principal amount of the Swing Loans then
outstanding, as designated by Administrative Borrower, plus interest accrued on
the amount so prepaid to the date of such prepayment, and any amount payable
under Article III hereof with respect to the amount being prepaid.
(b) Notice of Prepayment. Administrative Borrower shall give Agent notice
of prepayment of a Base Rate Loan or Swing Loan by no later than 12:00 noon
(Eastern time) on the Business Day on which such prepayment is to be made and
written notice of the prepayment of any LIBOR Fixed Rate Loan not later than
2:00 P.M. (Eastern time) three Business Days before the Business Day on which
such prepayment is to be made.
(c) Minimum Amount. Each prepayment of a LIBOR Fixed Rate Loan shall be in
the principal amount of not less than One Million Dollars ($1,000,000) (or, with
respect to an Alternate Currency Loan, rounded to a comparable amount of such
amount) or, with respect to a Swing Loan, the principal balance of such Swing
Loan, except in the case of a mandatory payment pursuant to Section 2.10 or
Article III hereof.
Section 2.8. Facility and Other Fees; Reduction of Commitment.
(a) Facility Fee. US Borrowers shall pay to Agent, for the ratable account
of the Lenders, as a consideration for the Commitment, a facility fee from the
Closing Date to and including the last day of the Commitment Period, payable
quarterly, at a rate per annum equal to (i) the Applicable Facility Fee Rate in
effect on the payment date, multiplied by (ii) the average daily Total
Commitment Amount in effect during such quarter. The facility fee shall be
payable in arrears, on December 31, 2005 and continuing on each Regularly
Scheduled Payment Date thereafter, and on the last day of the Commitment Period.
(b) Agent Fee. US Borrowers shall pay to Agent, for its sole benefit, the
fees set forth in the Agent Fee Letter.
(c) Optional Reduction of Commitment. Borrowers may at any time and from
time to time permanently reduce in whole or ratably in part the Total Commitment
Amount to an amount not less than the then existing Revolving Credit Exposure,
by Administrative Borrower giving Agent not fewer than three Business Days'
written notice of such reduction, provided that any such partial reduction shall
be in an aggregate amount, for all of the Lenders, of not less than Five Million
Dollars ($5,000,000), increased by increments of One Million Dollars
($1,000,000). Agent shall promptly notify each Lender of the date of each such
reduction and such Lender's proportionate share thereof. After each such
reduction, the facility fees payable hereunder shall
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be calculated upon the Total Commitment Amount as so reduced. If Borrowers
reduce in whole the Commitment, on the effective date of such reduction (the
appropriate Borrowers having prepaid in full the unpaid principal balance, if
any, of the Loans, together with all interest and facility and other fees
accrued and unpaid, and provided that no Letter of Credit Exposure or Swing Line
Exposure shall exist), all of the Notes, if any, shall be delivered to Agent
marked "Canceled" and Agent shall redeliver such Notes to Administrative
Borrower. Any partial reduction in the Total Commitment Amount shall be
effective during the remainder of the Commitment Period.
Section 2.9. Computation of Interest and Fees. With the exception of Base
Rate Loans and, if applicable, Alternate Currency Loans, interest on Loans, and
facility and other fees and charges hereunder shall be computed on the basis of
a year having three hundred sixty (360) days and calculated for the actual
number of days elapsed. With respect to Base Rate Loans, interest shall be
computed on the basis of a year having three hundred sixty-five (365) days or
three hundred sixty-six (366) days, as the case may be, and calculated for the
actual number of days elapsed. With respect to certain Alternate Currency Loans
(to the extent it is the market standard for the applicable Alternate Currency),
interest shall be computed on the basis of a year having three hundred
sixty-five (365) days or three hundred sixty-six (366) days, as the case may be,
and calculated for the actual number of days elapsed.
Section 2.10. Mandatory Payments.
(a) If, at any time, the Revolving Credit Exposure shall exceed the Total
Commitment Amount as then in effect, US Borrowers (and the appropriate Foreign
Borrowers) shall, as promptly as practicable, but in no event later than the
next Business Day, pay an aggregate principal amount of the Revolving Loans
sufficient to bring the Revolving Credit Exposure within the Total Commitment
Amount.
(b) If, at any time, the Swing Line Exposure shall exceed the Swing Line
Commitment, US Borrowers shall, as promptly as practicable, but in no event
later than the next Business Day, prepay an aggregate principal amount of the
Swing Loans sufficient to bring the Swing Line Exposure within the Swing Line
Commitment.
(c) Unless otherwise designated by Borrowers, each prepayment pursuant to
this Section 2.10 shall be applied in the following order (i) first, on a pro
rata basis for the Lenders, to outstanding Base Rate Loans, and (ii) second, on
a pro rata basis for the Lenders, to outstanding Eurodollar Loans (to
Eurodollars Loans with the earliest Interest Adjustment Dates first), provided
that if the outstanding principal amount of any Eurodollar Loan shall be reduced
to an amount less than the minimum amount set forth in Section 2.5(d) hereof as
a result of such prepayment, then such Eurodollar Loan shall be converted into a
Base Rate Loan on the date of such prepayment. Any prepayment of a LIBOR Fixed
Rate Loan or Swing Loan pursuant to this Section 2.10 shall be subject to the
prepayment penalties set forth in Article III hereof.
Section 2.11. Effectiveness of Guaranties. Concurrently with the execution
of this Agreement, Agilysys shall cause each Domestic Subsidiary (other than an
Excluded Subsidiary) to execute and deliver to Agent, for the benefit of the
Lenders, a Guaranty of Payment, to
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provide Organizational Documents and a legal opinion with respect to such
Guaranty of Payment, and to provide such other documents as Agent shall deem
reasonably necessary or appropriate (the "Guaranty Documents"). Agent, on behalf
of the Lenders, acknowledges that the Guaranty Documents will be held in escrow
by Agent and that any guaranty granted by such Domestic Subsidiary to Agent in
the Guaranty Documents shall not be effective until the earliest of (a) Agilysys
shall fail to comply with any financial covenant set forth in Section 5.7 hereof
and the Required Lenders shall not have waived such violation in writing or
amended such financial covenant to cure such violation within thirty (30) days
after such failure to comply, (b) an Event of Default shall occur under Section
7.1, 7.7, or 7.11 hereof, or (c) the Guaranty Effectiveness Date, at which time
Agent may, in its sole and absolute discretion, release the Guaranty Documents
from escrow to Agent, for the benefit of the Lenders. Borrowers acknowledge and
agree that Agent, on behalf of the Lenders, may release the Guaranty Documents
from escrow under any of the preceding conditions by providing five days prior
notice to Administrative Borrower or such Domestic Subsidiary (provided that no
notice or time period shall be required if an Event of Default shall have
occurred under Section 7.11 hereof), and such Guaranty Documents shall
thereafter be automatically effective, without any further action by Agent, any
Lender or any Credit Party or other Company. The provisions in this Section 2.11
shall control over the provisions of the Guaranty Documents until such time as
the Guaranty Documents shall become effective in accordance with this Section
2.11.
Section 2.12. Liability of Borrowers.
(a) Joint and Several Liability. Each US Borrower acknowledges and agrees
that Agent and the Lenders are entering into this Agreement at the request of
each US Borrower and with the understanding that each US Borrower is and shall
remain fully liable, jointly and severally, for payment in full of the
Obligations. Each US Borrower agrees that it is receiving or will receive a
direct pecuniary benefit for each Loan made or Letter of Credit issued
hereunder.
(b) Appointment of Administrative Borrower. Each Borrower hereby
irrevocably appoints Agilysys as the borrowing agent and attorney-in-fact for
all Borrowers ("Administrative Borrower") which appointment shall remain in full
force and effect unless and until Agent shall have received prior written notice
signed by each Borrower that such appointment has been revoked and that another
Borrower has been appointed Administrative Borrower. Each Borrower hereby
irrevocably appoints and authorizes Administrative Borrower to (i) provide Agent
with all notices with respect to Loans and Letters of Credit obtained for the
benefit of any Borrower and all other notices and instructions under this
Agreement, (ii) take such action as Administrative Borrower deems appropriate on
its behalf to obtain Loans and Letters of Credit, and (iii) exercise such other
powers as are reasonably incidental thereto to carry out the purposes of this
Agreement.
(c) Maximum Liability of Each Subsidiary Borrower. Anything in this
Agreement or any other Loan Document to the contrary notwithstanding, in no
event shall the maximum liability of any Subsidiary Borrower exceed the maximum
amount that (after giving effect to the incurring of the obligations hereunder
and to any rights to contribution of such Subsidiary Borrower from other
Affiliates of such Subsidiary Borrower) would not render the rights to
35
payment of Agent and the Lenders hereunder void, voidable or avoidable under any
applicable fraudulent transfer law.
(d) Waivers of Each Borrower. In the event that any obligation of any
Borrower under this Agreement is deemed to be an agreement by such Borrower to
answer for the debt or default of another Credit Party or as a hypothecation of
property as security therefore, each Borrower represents and warrants that (i)
no representation has been made to such Borrower as to the creditworthiness of
such other Credit Party, and (ii) such Borrower has established adequate means
of obtaining from such other Credit Party on a continuing basis, financial or
other information pertaining to such other Credit Party's financial condition.
Each Borrower expressly waives, except as expressly required under this
Agreement, diligence, demand, presentment, protest and notice of every kind and
nature whatsoever, consents to the taking by Agent and the Lenders of any
additional security, if any, of another Credit Party for the obligations secured
hereby, or the alteration or release in any manner of any security, if any, of
another Credit Party now or hereafter held in connection with the Obligations,
and consents that Agent, the Lenders and any other Credit Party may deal with
each other in connection with such obligations or otherwise, or alter any
contracts now or hereafter existing between them, in any manner whatsoever,
including without limitation the renewal, extension, acceleration or changes in
time for payment of any such obligations or in the terms or conditions of any
security held. Agent and the Lenders are hereby expressly given the right, at
their option, to proceed in the enforcement of any of the Obligations
independently of any other remedy or security they may at any time hold in
connection with such obligations secured and it shall not be necessary for Agent
and the Lenders to proceed upon or against or exhaust any other security or
remedy before proceeding to enforce their rights against such Borrower. Each
Borrower further subordinates any right of subrogation, reimbursement,
exoneration, contribution, indemnification, setoff or other recourse in respect
of sums paid to Agent and the Lenders by any other Credit Party.
(e) Liability of Foreign Borrowers. Anything herein to the contrary
notwithstanding, no Foreign Borrower shall at any time be liable for the
Indebtedness of US Borrowers under this Agreement.
Section 2.13. Addition of US Borrowers, Foreign Borrowers and Foreign
Guarantors.
(a) Addition of US Borrower. At the request of Administrative Borrower, a
Domestic Subsidiary of Agilysys that shall not then be a US Borrower may become
a US Borrower hereunder, provided that all of the following requirements shall
have been met to the satisfaction of Agent: (i) Administrative Borrower shall
have provided to Agent a written request that such Domestic Subsidiary be
designated as a US Borrower pursuant to the terms of this Agreement; (ii) such
Domestic Subsidiary shall be a wholly-owned subsidiary of Agilysys; (iii) such
Domestic Subsidiary shall have executed an Additional Borrower Assumption
Agreement and a US Borrower Revolving Credit Note (for any Lender requesting a
Note); and (iv) Agilysys and such Domestic Subsidiary that shall become a US
Borrower shall have provided to Agent such corporate governance and
authorization documents and an opinion of counsel and any other items as may be
deemed necessary or advisable by Agent, all of the foregoing to be in form and
substance reasonably satisfactory to Agent.
36
(b) Addition of Foreign Borrower. At the request of Administrative
Borrower, a Foreign Subsidiary of Agilysys that shall not then be a Foreign
Borrower may become a Foreign Borrower hereunder, provided that all of the
following requirements shall have been met to the satisfaction of Agent: (i)
Administrative Borrower shall have provided to Agent a written request that such
Foreign Subsidiary be designated as a Foreign Borrower pursuant to the terms of
this Agreement, which request shall specify the amount of Revolving Loans and
Letters of Credit requested to be made available to such Foreign Subsidiary (the
"Requested Availability"); (ii) Agent shall have approved the amount of the
Requested Availability or otherwise agreed with Administrative Borrower as to a
revised amount of availability, and, upon such approval or reaching such
agreement, Agent is hereby authorized to record such amount on Schedule 4 hereto
as the "Additional Foreign Borrower Maximum Amount" with respect to such Foreign
Subsidiary; (iii) such Foreign Subsidiary shall be a wholly-owned subsidiary of
Agilysys; (iv) there shall be no adverse tax consequences or adverse legal
impact as a result of such Foreign Subsidiary becoming a Foreign Borrower; (v)
Agilysys and each Domestic Guarantor of Payment shall have guaranteed the
obligations of such Foreign Subsidiary under this Agreement pursuant to the
terms of a Guaranty of Payment; (vi) such Foreign Subsidiary shall have executed
an Additional Borrower Assumption Agreement and a Foreign Borrower Revolving
Credit Note (for any Lender requesting a Note); (vii) any material Foreign
Affiliate, as determined by Agent in its reasonable discretion, of such Foreign
Subsidiary shall become a Foreign Guarantor of Payment with respect to such
Foreign Subsidiary and shall have executed a Guaranty of Payment with respect to
the obligations of such Foreign Subsidiary (provided that there shall be no
adverse tax consequences or adverse legal impact); and (viii) Agilysys and such
Foreign Subsidiary that shall become a Foreign Borrower shall have provided to
Agent such corporate governance and authorization documents and an opinion of
counsel and any other items as may be deemed necessary or advisable by Agent,
all of the foregoing to be in form and substance reasonably satisfactory to
Agent.
(c) Addition of Foreign Guarantor of Payment. At the request of
Administrative Borrower, a Foreign Subsidiary of Agilysys that shall not then be
a Foreign Guarantor of Payment may become a Foreign Guarantor of Payment
hereunder, provided that all of the following requirements shall have been met
to the satisfaction of Agent: (i) Administrative Borrower shall have provided to
Agent a written request that such Foreign Subsidiary be designated as a Foreign
Guarantor of Payment pursuant to the terms of this Agreement, which request
shall specify the Requested Availability for such Foreign Subsidiary; (ii) Agent
shall have approved the amount of the Requested Availability or otherwise agreed
with Administrative Borrower as to the revised amount of availability, and, upon
such approval or reaching such agreement, Agent is hereby authorized to record
such amount on Schedule 4 hereto as the "Additional Foreign Guarantor Maximum
Amount" with respect to such Foreign Subsidiary; (iii) such Foreign Subsidiary
shall be a wholly-owned subsidiary of Agilysys; (iv) such Foreign Subsidiary
shall have executed a Guaranty of Payment with respect to the obligations of one
or more Foreign Borrowers as may be required by Agent (provided that there shall
be no adverse tax consequences or adverse legal impact); and (v) such Foreign
Subsidiary that shall become a Foreign Guarantor of Payment shall have provided
to Agent such corporate governance and authorization documents and an opinion of
counsel and any other items as may be deemed necessary or advisable by Agent,
all of the foregoing to be in form and substance reasonably satisfactory to
Agent.
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(d) Additional Credit Party Bound by Provisions. Upon satisfaction by
Administrative Borrower and any such Domestic Subsidiary or Foreign Subsidiary
of the requirements set forth in subsections (a), (b) and (c) above, as
applicable, Agent shall promptly notify Administrative Borrower and the Lenders,
whereupon such Domestic Subsidiary or Foreign Subsidiary shall be designated a
"US Borrower", "Foreign Borrower" or "Foreign Guarantor of Payment", as
applicable, pursuant to the terms and conditions of this Agreement, and such
Domestic Subsidiary or Foreign Subsidiary shall become bound by all
representations, warranties, covenants, provisions and conditions of this
Agreement and each other Loan Document applicable to US Borrowers, Foreign
Borrowers or Foreign Guarantors of Payment, as the case may be, as if such US
Borrower, Foreign Borrower or Foreign Guarantor had been the original party
making such representations, warranties and covenants.
(e) Alternative Structures. Agent, the Lenders and Borrowers agree that, if
the addition of a Foreign Borrower or Foreign Guarantor of Payment pursuant to
subsections (b) and (c) above would result in a requirement by such Foreign
Borrower or Foreign Guarantor of Payment to pay to any Lenders additional
amounts pursuant to Section 3.2 hereof, then Agent, the Lenders and Borrowers
agree to use reasonable efforts to designate a different lending office or
otherwise propose an alternate structure that would avoid the need for, or
reduce the amount of, such additional amounts so long as the same would not, in
the judgment of Agent and the Lenders, be otherwise disadvantageous to Agent and
the Lenders.
ARTICLE III. ADDITIONAL PROVISIONS RELATING TO LIBOR FIXED RATE
LOANS; INCREASED CAPITAL; TAXES
Section 3.1. Requirements of Law.
(a) If, after the Closing Date (i) the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or (ii) the
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority:
(A) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit or any LIBOR Fixed Rate
Loan made by it, or change the basis of taxation of payments to such Lender
in respect thereof (except for Taxes and Excluded Taxes which are governed
by Section 3.2 hereof);
(B) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate or the Alternate Currency Rate; or
(C) shall impose on such Lender any other condition;
38
and the result of any of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining LIBOR Fixed Rate Loans or
issuing or participating in Letters of Credit, or to reduce any amount
receivable hereunder in respect thereof, then, in any such case, US Borrowers
(and any Foreign Borrower to which such Loan was made) shall pay to such Lender,
promptly after receipt of a written request therefor, any additional amounts
necessary to compensate such Lender for such increased cost or reduced amount
receivable, provided that such additional amount does not constitute a penalty.
If any Lender becomes entitled to claim any additional amounts pursuant to this
subsection (a), such Lender shall promptly notify Administrative Borrower (with
a copy to Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that, after the Closing Date, the
adoption of or any change in any Requirement of Law regarding capital adequacy
or in the interpretation or application thereof or compliance by such Lender or
any corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority shall have the effect of reducing the rate of return on such Lender's
or such corporation's capital as a consequence of its obligations hereunder, or
under or in respect of any Letter of Credit, to a level below that which such
Lender or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration the policies of such Lender or corporation
with respect to capital adequacy), then from time to time, upon submission by
such Lender to Administrative Borrower (with a copy to Agent) of a written
request therefor (which shall include the method for calculating such amount and
reasonable detail regarding such calculation), US Borrowers (and any Foreign
Borrower to which such Loan was made) shall promptly pay or cause to be paid to
such Lender such additional amount or amounts as will compensate such Lender for
such reduction, provided that such additional amount does not constitute a
penalty.
(c) A certificate as to any additional amounts payable pursuant to this
Section 3.1 submitted by any Lender to Administrative Borrower, together with a
reasonably detailed calculation and description of such amounts contemplated by
this Section 3.1 (with a copy to Agent) shall be rebuttably presumptive evidence
of the amounts so payable. In determining any such additional amounts, such
Lender may use any method of averaging and attribution that it (in its good
faith, reasonable credit judgment) shall deem applicable. The obligations of
Borrowers pursuant to this Section 3.1 shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.
Section 3.2. Taxes.
(a) All payments made by any Credit Party under any Loan Document shall be
made free and clear of, and without deduction or withholding for or on account
of any Taxes or Other Taxes. If any Taxes or Other Taxes are required to be
deducted or withheld from any amounts payable to Agent or any Lender thereunder,
the amounts so payable to Agent or such Lender shall be increased to the extent
necessary to yield to Agent or such Lender (after deducting, withholding and
payment of all Taxes and Other Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in the Loan Documents.
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(b) In addition, the Credit Parties shall pay Taxes and Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Taxes or Other Taxes are required to be withheld and paid
by a Credit Party, such Credit Party shall timely withhold and pay such taxes to
the relevant Governmental Authorities. As promptly as possible thereafter, such
Credit Party shall send to Agent for its own account or for the account of the
relevant Lender, as the case may be, a certified copy of an original official
receipt received by such Credit Party showing payment thereof or other evidence
of payment reasonably acceptable to Agent or such Lender. If such Credit Party
shall fail to pay any Taxes or Other Taxes when due to the appropriate
Governmental Authority fails to remit to Agent the required receipts or other
required documentary evidence, US Borrowers and such Credit Party shall
indemnify Agent and the appropriate Lenders on demand for any incremental taxes,
interest or penalties that may become payable by Agent or such Lender as a
result of any such failure.
(d) If any Lender shall be so indemnified by a Credit Party, such Lender
shall use reasonable efforts to obtain the benefits of any refund, deduction or
credit for any taxes or other amounts with respect to the amount paid by such
Credit Party and shall reimburse such Credit Party to the extent, but only to
the extent, that such Lender shall receive a refund with respect to the amount
paid by such Credit Party or an effective net reduction in taxes or other
governmental charges (including any taxes imposed on or measured by the total
net income of such Lender) of the United States or any state or subdivision or
any other Governmental Authority thereof by virtue of any such deduction or
credit, after first giving effect to all other deductions and credits otherwise
available to such Lender. If, at the time any audit of such Lender's income tax
return is completed, such Lender determines, based on such audit, that it shall
not have been entitled to the full amount of any refund reimbursed to such
Credit Party as aforesaid or that its net income taxes shall not have been
reduced by a credit or deduction for the full amount reimbursed to such Credit
Party as aforesaid, such Credit Party, upon request of such Lender, shall
promptly pay to such Lender the amount so refunded to which such Lender shall
not have been so entitled, or the amount by which the net income taxes of such
Lender shall not have been so reduced, as the case may be.
(e) Each Lender that is not (i) a citizen or resident of the United States
of America, (ii) a corporation, partnership or other entity created or organized
in or under the laws of the United States of America (or any jurisdiction
thereof), or (iii) an estate or trust that is subject to federal income taxation
regardless of the source of its income (any such Person, a "Non-U.S. Lender")
shall deliver to Administrative Borrower and Agent two copies of either U.S.
Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a statement with respect to such interest and a Form W-8BEN, or any
subsequent versions thereof or successors thereto, properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from, or a reduced
rate of, U.S. federal withholding tax on all payments by Credit Parties under
this Agreement and the other Loan Documents. Such forms shall be delivered by
each Non-U.S. Lender on or before the date it becomes a party to this Agreement
or such other Loan Document. In addition, each Non-U.S. Lender shall deliver
such forms or appropriate replacements
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promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify Administrative
Borrower at any time it determines that such Lender is no longer in a position
to provide any previously delivered certificate to Administrative Borrower (or
any other form of certification adopted by the U.S. taxing authorities for such
purpose). Notwithstanding any other provision of this subsection (e), a Non-U.S.
Lender shall not be required to deliver any form pursuant to this subsection (e)
that such Non-U.S. Lender is not legally able to deliver.
(f) The agreements in this Section 3.2 shall survive the termination of the
Loan Documents and the payment of the Loans and all other amounts payable
hereunder.
Section 3.3. Funding Losses. US Borrowers (and the appropriate Foreign
Borrower) agree to indemnify each Lender, promptly after receipt of a written
request therefor, and to hold each Lender harmless from, any properly documented
loss or expense that such Lender may sustain or incur as a consequence of (a)
default by a Borrower in making a borrowing of, conversion into or continuation
of LIBOR Fixed Rate Loans after such Borrower has given a notice requesting the
same in accordance with the provisions of this Agreement, (b) default by a
Borrower in making any prepayment of or conversion from LIBOR Fixed Rate Loans
after such Borrower has given a notice thereof in accordance with the provisions
of this Agreement, (c) the making of a prepayment of a LIBOR Fixed Rate Loan on
a day that is not the last day of an Interest Period applicable thereto, (d) the
making of a prepayment of a Swing Loan on a day that is not the Swing Loan
Maturity Date applicable thereto, or (e) any conversion of a Eurodollar Loan to
a Base Rate Loan on a day that is not the last day of an Interest Period
applicable thereto. Such indemnification shall be in an amount equal to the
excess, if any, of (i) the amount of interest (with no premium or penalty
thereon) that would have accrued on the amounts so prepaid, or not so borrowed,
converted or continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of such Interest
Period (or, in the case of a failure to borrow, convert or continue, the
Interest Period that would have commenced on the date of such failure) or the
applicable Swing Loan Maturity Date in each case at the applicable rate of
interest for such Loans provided for herein (excluding, however, the Applicable
Margin included therein, if any) over (ii) the amount of interest (as reasonably
determined by such Lender (with no premium or penalty thereon)) that would have
accrued to such Lender on such amount by placing such amount on deposit for a
comparable period with leading banks in the appropriate London interbank market,
along with any administration fee charged by such Lender. A certificate as to
any amounts payable pursuant to this Section 3.3 submitted to Administrative
Borrower, together with a reasonably detailed calculation and description of
such amounts (with a copy to Agent) by any Lender shall be rebuttably
presumptive evidence of the amount so payable. The obligations of Borrowers
pursuant to this Section 3.3 shall survive the termination of this Agreement and
the payment of the Loans and all other amounts payable hereunder.
Section 3.4. Eurodollar Rate or Alternate Currency Rate Lending Unlawful;
Inability to Determine Rate.
(a) If any Lender shall determine (which determination shall, upon notice
thereof to Administrative Borrower and Agent, be conclusive and binding on
Borrowers) that, after the
41
Closing Date, (i) the introduction of or any change in or in the interpretation
of any law makes it unlawful, or (ii) any Governmental Authority asserts that it
is unlawful, for such Lender to make or continue any Loan as, or to convert (if
permitted pursuant to this Agreement) any Loan into, a LIBOR Fixed Rate Loan,
the obligations of such Lender to make, continue or convert any such LIBOR Fixed
Rate Loan shall, upon such determination, be suspended until such Lender shall
notify Agent that the circumstances causing such suspension no longer exist, and
all outstanding LIBOR Fixed Rate Loans payable to such Lender shall
automatically convert (if conversion is permitted under this Agreement) into a
Base Rate Loan, or be repaid (if no conversion is permitted) at the end of the
then current Interest Periods with respect thereto or sooner, if required by law
or such assertion.
(b) If Agent or the Required Lenders determine that for any reason adequate
and reasonable means do not exist for determining the Eurodollar Rate or
Alternate Currency Rate for any requested Interest Period with respect to a
proposed LIBOR Fixed Rate Loan, or that the Eurodollar Rate or Alternate
Currency Rate for any requested Interest Period with respect to a proposed LIBOR
Fixed Rate Loan does not adequately and fairly reflect the cost to the Lenders
of funding such Loan, Agent will promptly so notify Administrative Borrower and
each Lender. Thereafter, the obligation of the Lenders to make or maintain such
LIBOR Fixed Rate Loan shall be suspended until Agent (upon the instruction of
the Required Lenders) revokes such notice. Upon receipt of such notice,
Administrative Borrower may revoke any pending request for a borrowing of,
conversion to or continuation of such LIBOR Fixed Rate Loan or, failing that,
will be deemed to have converted such request into a request for a borrowing of
a Base Rate Loan in the amount specified therein.
Section 3.5. Discretion of Lenders as to Manner of Funding. Notwithstanding
any provision of this Agreement to the contrary, each Lender shall be entitled
to fund and maintain its funding of all or any part of such Lender's Loans in
any manner such Lender deems to be appropriate; it being understood, however,
that for the purposes of this Agreement all determinations hereunder shall be
made as if such Lender had actually funded and maintained each Eurodollar Loan
or Alternate Currency Loan during the applicable Interest Period for such Loan
through the purchase of deposits having a maturity corresponding to such
Interest Period and bearing an interest rate equal to the Eurodollar Rate or
Alternate Currency Rate, as applicable, for such Interest Period.
ARTICLE IV. CONDITIONS PRECEDENT
Section 4.1. Conditions to Each Credit Event. The obligation of the
Lenders, the Fronting Lender and the Swing Line Lender to participate in any
Credit Event shall be conditioned, in the case of each Credit Event, upon the
following:
(a) all conditions precedent as listed in Section 4.2 hereof required to be
satisfied prior to the first Credit Event shall have been satisfied prior to or
as of the first Credit Event;
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(b) Administrative Borrower shall have submitted a Notice of Loan (or with
respect to a Letter of Credit, complied with the provisions of Section
2.2(b)(ii) hereof) and otherwise complied with Section 2.5 hereof;
(c) no Default or Event of Default shall then exist or immediately after
such Credit Event would exist; and
(d) each of the representations and warranties contained in Article VI
hereof shall be true in all material respects as if made on and as of the date
of such Credit Event, except to the extent that any thereof expressly relate to
an earlier date.
Each request by Borrowers (or Administrative Borrower) for a Credit Event shall
be deemed to be a representation and warranty by Borrowers as of the date of
such request as to the satisfaction of the conditions precedent specified in
subsections (c) and (d) above.
Section 4.2. Conditions to the First Credit Event. Agilysys shall cause the
following conditions to be satisfied on or prior to the Closing Date. The
obligation of the Lenders, the Fronting Lender and the Swing Line Lender to
participate in the first Credit Event is subject to Agilysys satisfying each of
the following conditions prior to or concurrently with such Credit Event:
(a) Notes as Requested. US Borrowers shall have executed and delivered to
(i) each Lender requesting a US Borrower Revolving Credit Note such Lender's US
Borrower Revolving Credit Note, and (ii) the Swing Line Lender the Swing Line
Note, if requested by the Swing Line Lender.
(b) Guaranties of Payment. Each Domestic Guarantor of Payment shall have
executed and delivered to Agent a Guaranty of Payment (which Guaranty of Payment
shall be subject to the provisions of Section 2.11 hereof), in form and
substance satisfactory to Agent and the Lenders.
(c) Officer's Certificate, Resolutions, Organizational Documents. Each
Credit Party shall have delivered to Agent an officer's certificate (or
comparable domestic or foreign documents) certifying the names of the officers
of such Credit Party authorized to sign the Loan Documents, together with the
true signatures of such officers and certified copies of (i) the resolutions of
the board of directors (or comparable domestic or foreign documents) of such
Credit Party evidencing approval of the execution and delivery of the Loan
Documents and the execution of other Related Writings to which such Credit Party
is a party, and (ii) the Organizational Documents of such Credit Party.
(d) Good Standing and Full Force and Effect Certificates. Agilysys shall
have delivered to Agent a good standing certificate or full force and effect
certificate, as the case may be, for each Credit Party, issued on or about the
Closing Date by the Secretary of State in the state or states where such Credit
Party is incorporated or formed or qualified as a foreign entity.
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(e) Legal Opinion. Agilysys shall have delivered to Agent an opinion of
counsel for each Credit Party, in form and substance satisfactory to Agent and
the Lenders.
(f) Agent Fee Letter, Closing Fee Letter and Other Fees. Agilysys shall
have (i) executed and delivered to Agent the Agent Fee Letter and paid to Agent,
for its sole account, the fees stated therein, (ii) executed and delivered to
Agent the Closing Fee Letter and paid to Agent, for the benefit of the Lenders,
the fees stated therein, and (iii) paid all legal fees and expenses of Agent in
connection with the preparation and negotiation of the Loan Documents.
(g) Lien Searches. With respect to the property owned or leased by each
Borrower and each Domestic Guarantor of Payment, Agilysys shall have caused to
be delivered to Agent (i) the results of Uniform Commercial Code lien searches,
satisfactory to Agent and the Lenders, (ii) the results of federal and state tax
lien and judicial lien searches, satisfactory to Agent and the Lenders, and
(iii) Uniform Commercial Code termination statements reflecting termination of
all U.C.C. Financing Statements previously filed by any Person and not expressly
permitted pursuant to Section 5.9 hereof.
(h) Financial Reports. Agilysys shall have delivered to Agent (i) copies of
Agilysys' Annual Report on Form 10-K filed with the SEC for the fiscal years
ended March 31, 2003, March 31, 2004 and March 31, 2005, and (ii) copies of
Agilysys' Quarterly Report on Form 10-Q filed with the SEC for the fiscal
quarter ended June 30, 2005.
(i) Pro-Forma Projections. Agilysys shall have delivered to Agent an annual
pro-forma projection (which includes balance sheets of the Companies, statements
of income (loss) and cash flow) of financial statements of Agilysys for the
fiscal years ending March 31, 2006 through March 31, 2010, prepared consistently
in accordance with Agilysys' past practices, and as set forth in that certain
Confidential Information Memorandum presented to representatives of Agent and
the Lenders in a meeting with representatives of Agilysys held on September 12,
2005.
(j) Existing Credit Agreement. Agilysys shall have terminated the Credit
Agreement, dated as of April 16, 2003, by and among Agilysys, the financial
institutions named therein, and KeyBank National Association, as agent, as
amended, which termination shall be deemed to have occurred upon payment in full
of all of the Indebtedness outstanding thereunder and termination of the
commitments established therein.
(k) Closing Certificate. Agilysys shall have delivered to Agent and the
Lenders an officer's certificate certifying that, as of the Closing Date, (i)
all conditions precedent set forth in this Article IV have been satisfied, (ii)
no Default or Event of Default exists nor immediately after the first Credit
Event will exist, and (iii) each of the representations and warranties contained
in Article VI hereof are true and correct as of the Closing Date.
(l) No Material Adverse Change. No occurrence or development resulting in a
Material Adverse Effect, in the good-faith, reasonable credit judgment of Agent,
shall have occurred in the financial condition or operations of the Companies
since March 31, 2005.
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(m) Miscellaneous. Borrowers shall have provided to Agent and the Lenders
such other items and shall have satisfied such other conditions as may be
reasonably required by Agent or the Lenders.
ARTICLE V. COVENANTS
Section 5.1. Insurance. Each Company shall (a) maintain insurance to such
extent and against such hazards and liabilities as is commonly maintained by
Persons similarly situated; and (b) within ten days of any Lender's written
request, furnish to such Lender such information about such Company's insurance
as that Lender may from time to time reasonably request.
Section 5.2. Money Obligations. Each Company shall pay in full (a) prior in
each case to the date when penalties would attach, all taxes, assessments and
governmental charges and levies (except only those so long as and to the extent
that the same shall be contested in good faith by appropriate and timely
proceedings and for which adequate provisions have been established in
accordance with GAAP) for which it may be or become liable or to which any or
all of its properties may be or become subject; (b) in the case of each US
Borrower, all of its material wage obligations to its employees in compliance
with the Fair Labor Standards Act (29 U.S.C. Sections 206-207) or any comparable
provisions; and (c) all of its other material obligations calling for the
payment of money (except only those so long as and to the extent that nonpayment
would not cause a Material Adverse Effect) before such payment becomes overdue.
Section 5.3. Financial Statements and Information.
(a) Quarterly Financials. Agilysys shall deliver to Agent and the Lenders,
no later than ten days after the date on which any of the following items are
required to be delivered to the SEC, balance sheets of the Companies as of the
end of such period and statements of income (loss), stockholders' equity and
cash flow for the quarter and fiscal year to date periods, all prepared on a
Consolidated basis, in accordance with GAAP, and in form and detail reasonably
satisfactory to Agent and the Lenders and certified by a Financial Officer;
provided, however, that delivery pursuant to paragraph (f) below of copies of
the Quarterly Report on Form 10-Q of Agilysys for such quarterly period filed
with the SEC shall be deemed to satisfy the requirements of this subsection (a).
(b) Annual Audit Report. Agilysys shall deliver to Agent and the Lenders,
no later than ten days after the date on which any of the following items are
required to be delivered to the SEC, an annual audit report of the Companies for
that year prepared on a Consolidated and consolidating basis (provided that
consolidating statements may be internally prepared and need not be certified by
independent public accountants and shall not be required to be delivered until
one hundred (100) days after the close of each fiscal year of Agilysys), in
accordance with GAAP, and in form and detail reasonably satisfactory to Agent
and the Lenders and certified by an unqualified opinion of an independent public
accountant satisfactory to Agent, which report shall include balance sheets and
statements of income (loss), stockholders' equity and cash-flow for that period;
provided, however, that delivery pursuant to paragraph (f) below of copies of
the
45
Annual Report on Form 10-K of the Companies for such period filed with the SEC
shall be deemed to satisfy the requirements of this paragraph (b).
(c) Compliance Certificate. Agilysys shall deliver to Agent and the
Lenders, concurrently with the delivery of the financial statements set forth in
subsections (a) and (b) above, a Compliance Certificate.
(d) Management Report. Agilysys shall deliver to Agent and the Lenders,
concurrently with the delivery of the quarterly and annual financial statements
set forth in subsections (a) and (b) above, a copy of the summary report or
summary letter prepared with respect to any management report, letter or similar
writing furnished to the Companies by the accountants in respect of the
Companies' systems, operations, financial condition or properties.
(e) Budget Projections. Agilysys shall deliver to Agent and the Lenders,
concurrently with the delivery of the annual financial statements set forth in
subsection (b) above, annual budgets of the Companies for the then current
fiscal year, to be in form reasonably acceptable to Agent.
(f) Shareholder and SEC Documents. Agilysys shall notify Agent and the
Lenders, as soon as is practicable, of the availability of all notices, reports,
definitive proxy or other statements and other documents sent by Agilysys to its
shareholders, to the holders of any of its debentures or bonds or the trustee of
any indenture securing the same or pursuant to which they are issued, or sent by
Agilysys (in final form) to any securities exchange or over the counter
authority or system, or to the SEC or any similar federal agency having
regulatory jurisdiction over the issuance of Agilysys' securities.
(g) Financial Information of Companies. Agilysys shall deliver to Agent and
the Lenders, within thirty (30) days of the written request of Agent or any
Lender, such other information about the financial condition, properties and
operations of any Company as Agent or such Lender may from time to time
reasonably request, which information shall be submitted in form and detail
reasonably satisfactory to Agent or such Lender and certified by a Financial
Officer of the Company or Companies in question.
Section 5.4. Financial Records. Each Company shall at all times maintain
true and complete records and books of account, including, without limiting the
generality of the foregoing, appropriate provisions for possible losses and
liabilities, all in accordance with GAAP, and at all reasonable times (during
normal business hours and upon notice to such Company) permit Agent or any
Lender, or any representative of Agent or such Lender, to examine such Company's
books and records and to make excerpts therefrom and transcripts thereof.
Section 5.5. Franchises; Change in Business.
(a) Each Company that is not an Excluded Subsidiary shall preserve and
maintain at all times its existence, and its rights and franchises material to
its business, except as otherwise permitted pursuant to Section 5.12 hereof.
46
(b) No Company shall engage in any business if, as a result thereof, the
general nature of the business of the Companies taken as a whole would be
substantially changed from the general nature of the business the Companies are
engaged in on the Closing Date.
Section 5.6. ERISA Pension and Benefit Plan Compliance. No Company shall
incur any material accumulated funding deficiency within the meaning of ERISA,
or any material liability to the PBGC, established thereunder in connection with
any ERISA Plan. Borrowers shall furnish to the Lenders (a) as soon as possible
and in any event within thirty (30) days after any Company knows or has reason
to know that any Reportable Event with respect to any ERISA Plan has occurred, a
statement of a Financial Officer of such Company, setting forth details as to
such Reportable Event and the action that such Company proposes to take with
respect thereto, together with a copy of the notice of such Reportable Event
given to the PBGC if a copy of such notice is available to such Company, and (b)
promptly after receipt thereof a copy of any notice such Company, or any member
of the Controlled Group may receive from the PBGC or the Internal Revenue
Service with respect to any ERISA Plan administered by such Company; provided,
that this latter clause shall not apply to notices of general application
promulgated by the PBGC or the Internal Revenue Service or to letters or notices
such as a favorable Determination Letter with respect to an ERISA Plan, which
does not threaten a material liability to a Company. Borrowers shall promptly
notify the Lenders of any material taxes assessed, proposed to be assessed or
that Borrowers have reason to believe may be assessed against a Company by the
Internal Revenue Service with respect to any ERISA Plan. As used in this Section
5.6, "material" means the measure of a matter of significance that shall be
determined as being an amount equal to five percent (5%) of Consolidated Net
Worth. As soon as practicable, and in any event within thirty (30) days, after
any Company shall become aware that an ERISA Event shall have occurred, such
Company shall provide Agent with notice of such ERISA Event with a certificate
by a Financial Officer of such Company setting forth the details of the event
and the action such Company or another Controlled Group member proposes to take
with respect thereto. Borrowers shall, at the request of Agent or any Lender,
deliver or cause to be delivered to Agent or such Lender, as the case may be,
true and correct copies of any documents relating to the ERISA Plan of any
Company.
Section 5.7. Financial Covenants.
(a) Leverage Ratio. Agilysys shall not suffer or permit at any time the
Leverage Ratio to exceed 3.00 to 1.00.
(b) Fixed Charge Coverage Ratio. Agilysys shall not suffer or permit at any
time the Fixed Charge Coverage Ratio to be less than 1.20 to 1.00.
(c) Liquidity Ratio. For any fiscal quarter of Agilysys in which the
Leverage Ratio equals or exceeds 2.00 to 1.00, Agilysys shall not suffer or
permit the Liquidity Ratio, for such fiscal quarter, to be less than 1.00 to
1.00.
(d) Consolidated Net Worth. Agilysys shall not suffer or permit at any time
the Consolidated Net Worth, for the most recently completed fiscal quarter of
Agilysys, to be less
47
than the current minimum amount required, which current minimum amount required
shall be the Closing Date Required Net Worth Amount on the Closing Date through
December 30, 2005, with such current minimum amount required to be positively
increased by the Increase Amount on December 31, 2005, and by an additional
Increase Amount on the last day of each succeeding fiscal year thereafter. As
used herein, the term "Increase Amount" shall mean an amount equal to (i) fifty
percent (50%) of positive Consolidated Net Earnings for the fiscal year then
ended (with no deduction for losses), plus (ii) one hundred percent (100%) of
the proceeds of any equity offering by the Companies, or any debt offering of
the Companies, to the extent converted into equity.
Section 5.8. Borrowing. No Company shall create, incur or have outstanding
any Indebtedness of any kind; provided that this Section 5.8 shall not apply to
the following:
(a) the Loans, the Letters of Credit and any other Indebtedness under this
Agreement;
(b) any loans granted to or Capitalized Lease Obligations entered into by
any Company for the purchase or lease of fixed assets (and refinancings of such
loans or Capitalized Lease Obligations), which loans and Capitalized Lease
Obligations shall only be secured by the fixed assets being purchased or leased,
so long as the aggregate principal amount of all such loans and Capitalized
Lease Obligations for all Companies shall not exceed Twenty-Five Million Dollars
($25,000,000) at any time outstanding;
(c) the Indebtedness existing on the Closing Date, in addition to the other
Indebtedness permitted to be incurred pursuant to this Section 5.8, as set forth
in Schedule 5.8 hereto (and any extension, renewal or refinancing thereof so
long as the principal amount thereof shall not be increased after the Closing
Date);
(d) loans to a Company from a Company so long as each such Company is a
Credit Party;
(e) Indebtedness under any Hedge Agreement, so long as such Hedge Agreement
shall have been entered into in the ordinary course of business and not for
speculative purposes;
(f) unsecured Indebtedness incurred or assumed in connection with an
Acquisition permitted pursuant to Section 5.13 hereof, so long as the aggregate
principal amount of all such Indebtedness incurred in connection with all such
Acquisitions by all Companies does not exceed Twenty-Five Million Dollars
($25,000,000) at any time outstanding;
(g) Indebtedness of a Foreign Subsidiary, up to an aggregate principal
amount (not including any other Indebtedness permitted pursuant to subsection
(h) below) of up to Five Million Dollars ($5,000,000) at any time outstanding
for such Foreign Subsidiary, provided however, that the aggregate amount of
Indebtedness for all Foreign Subsidiaries (not including any other Indebtedness
permitted pursuant to subsection (h) below) shall not exceed Ten Million Dollars
($10,000,000) at any time outstanding;
(h) Permitted Foreign Subsidiary Loans and Investments;
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(i) unsecured obligations owing with respect to the Agreement for Inventory
Financing or unsecured Indebtedness owing with respect to the Senior Unsecured
Notes;
(j) unsecured obligations owing with respect to any inventory financing
agreement with respect to Agilysys CH Limited, a Hong Kong corporation (or any
Subsidiary thereof), not to exceed Twenty Million Dollars ($20,000,000) at any
time outstanding; and
(k) other unsecured Indebtedness, in addition to the Indebtedness listed
above, in an aggregate principal amount for all Companies not to exceed Ten
Million Dollars ($10,000,000) at any time outstanding.
Section 5.9. Liens. No Company shall create, assume or suffer to exist
(upon the happening of a contingency or otherwise) any Lien upon any of its
property or assets, whether now owned or hereafter acquired; provided that this
Section 5.9 shall not apply to the following:
(a) Liens for taxes, assessments or governmental charges or levies on such
Company's property or assets if the same shall not at the time be delinquent or
thereafter can be paid without penalty, or are being contested in good faith by
appropriate and timely proceedings and for which adequate provisions have been
established in accordance with GAAP;
(b) other statutory Liens incidental to the conduct of its business or the
ownership of its property and assets that (i) were not incurred in connection
with the borrowing of money or the obtaining of advances or credit, and (ii) do
not in the aggregate materially detract from the value of its property or assets
or materially impair the use thereof in the operation of its business;
(c) Liens arising in the ordinary course of business out of pledges or
deposits under workers' compensation laws, unemployment insurance, old age
pensions, or social security, retirement benefits or similar legislation;
(d) easements or other minor defects or irregularities in title of real
property not interfering in any material respect with the use of such property
in the business of any Company;
(e) purchase money Liens on fixed assets securing the loans and Capitalized
Lease Obligations pursuant to Section 5.8(b) hereof, provided that such Lien is
limited to the purchase price and only attaches to the property being acquired;
(f) the Liens existing on the Closing Date as set forth in Schedule 5.9
hereto and replacements, extensions, renewals, refundings or refinancings
thereof, but only to the extent that the amount of debt secured thereby shall
not be increased;
(g) Liens on property or assets of a Subsidiary to secure obligations of
such Subsidiary to a Credit Party;
(h) any Lien granted to Agent, for the benefit of the Lenders;
49
(i) Liens arising out of deposits to secure the performance of bids, trade
contracts (other than contracts for the payment of money), leases, licenses,
franchises, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature incurred in the ordinary course of
business in an aggregate amount, for all Companies, not in excess of Ten Million
Dollars ($10,000,000);
(j) Liens arising with respect to rights of lessees or sublessees under
operating leases in assets leased by a Company under an operating lease; or
(k) any Lien on fixed assets owned by a Company as a result of an
Acquisition permitted pursuant to Section 5.13 hereof, so long as such Lien (i)
is released within one hundred eighty (180) days of such Acquisition (unless
Borrowers shall have obtained the prior written consent of Agent and the
Required Lenders), and (ii) such Lien was not created at the time of or in
contemplation of such Acquisition.
Section 5.10. Regulations T, U and X. No Company shall take any action that
would result in any non-compliance of the Loans or Letters of Credit with
Regulations T, U or X, or any other applicable regulation, of the Board of
Governors of the Federal Reserve System.
Section 5.11. Investments, Loans and Guaranties. No Company shall (a)
create, acquire or hold any Subsidiary, (b) make or hold any investment in any
stocks, bonds or securities of any kind, (c) be or become a party to any joint
venture or other partnership, (d) make or keep outstanding any advance or loan
to any Person, or (e) be or become a Guarantor of any kind (other than a
Guarantor of Payment under the Loan Documents); provided that this Section 5.11
shall not apply to the following:
(i) any endorsement of a check or other medium of payment for deposit
or collection through normal banking channels or similar transaction in the
normal course of business;
(ii) any investment made in accordance with the Borrower Investment
Policy;
(iii) the holding of each of the Subsidiaries listed on Schedule 6.1
hereto, and the creation, acquisition and holding of, and any investments
in, any new Subsidiary after the Closing Date so long as such new
Subsidiary shall have been created, acquired or held, and investments made,
in accordance with the terms and conditions of this Agreement;
(iv) loans to, investments by and guaranties of the Indebtedness of, a
Company from or by a Company so long as each such Company is a Credit
Party;
(v) any guaranty of the Indebtedness permitted pursuant to Section
5.8(j) hereof;
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(vi) any Permitted Investment or Permitted Foreign Subsidiary Loans
and Investments, so long as no Default or Event of Default shall then exist
or would result therefrom;
(vii) the holding of any stock or equity interest that has been
acquired pursuant to an Acquisition permitted by Section 5.13 hereof;
provided, however, that, to the extent the holding of such stock or equity
interest constitutes an investment in a Foreign Subsidiary or Non-Credit
Party Exposure, such holding shall be subject to the restrictions in
subsection (vi) above;
(viii) the creation and holding of a Subsidiary for the purpose of
making an Acquisition permitted by Section 5.13 hereof, so long as such
Subsidiary becomes a Guarantor of Payment promptly following such
Acquisition if required by Section 5.20 hereof; or
(ix) loans to and investments in Excluded Subsidiaries made by Credit
Parties or Foreign Subsidiaries so long as the aggregate of all such loans
and investments shall not exceed Ten Million Dollars ($10,000,000).
Section 5.12. Merger and Sale of Assets. No Company shall merge, amalgamate
or consolidate with any other Person, or sell, lease or transfer or otherwise
dispose of any assets to any Person other than in the ordinary course of
business, except that, if no Default or Event of Default shall then exist or
immediately thereafter shall begin to exist:
(a) a Domestic Subsidiary may merge with (i) a US Borrower (provided that
such US Borrower shall be the continuing or surviving Person), or (ii) any one
or more Domestic Guarantors of Payment;
(b) a US Borrower may merge with Agilysys (provided that Agilysys shall be
the continuing or surviving Person);
(c) a Domestic Subsidiary may sell, lease, transfer or otherwise dispose of
any of its assets to (i) a US Borrower or (ii) any Domestic Guarantor of
Payment;
(d) a Company may sell, lease, transfer or otherwise dispose of any of its
assets to Agilysys;
(e) a Company may sell, lease, transfer or otherwise dispose of any assets
(including capital stock) (i) that are obsolete, or (ii) no longer useful in
such Company's business, provided that a Borrower shall not, without the prior
written consent of Agent and the Required Lenders, effect a Significant Asset
Disposition;
(f) a Domestic Subsidiary (other than a Credit Party) may merge with or
sell, lease, transfer or otherwise dispose of any of its assets to any other
Domestic Subsidiary;
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(g) a Foreign Subsidiary (that is a Credit Party) may merge or amalgamate
with another Foreign Subsidiary (that is a Credit Party) or a US Borrower or
Domestic Guarantor of Payment, provided that such US Borrower or Domestic
Guarantor of Payment shall be the continuing or surviving Person;
(h) a Foreign Subsidiary (other than a Credit Party) may merge or
amalgamate with a Credit Party provided that a Credit Party shall be the
continuing or surviving Person, or (ii) another Foreign Subsidiary;
(i) a Foreign Subsidiary may sell, lease, transfer or otherwise dispose of
any of its assets to any Credit Party;
(j) any Foreign Subsidiary (other than a Credit Party) may sell, lease,
transfer or otherwise dispose of any of its assets to any other Foreign
Subsidiary;
(k) any Company may sell, transfer or otherwise dispose of fixed assets in
the ordinary course of business for the purpose of replacing such fixed assets,
provided that any such fixed assets are replaced within one hundred eighty (180)
days of such sale or other disposition with other fixed assets which have a fair
market value not materially less than the fair market value of the fixed assets
sold or otherwise disposed; and
(l) Acquisitions may be effected in accordance with the provisions of
Section 5.13 hereof.
Section 5.13. Acquisitions. No Company shall effect an Acquisition;
provided, however, that a Company may effect an Acquisition so long as:
(a) in the case of a merger, amalgamation or other combination including a
Borrower, such Borrower shall be the surviving entity;
(b) in the case of a merger, amalgamation or other combination including a
Credit Party (other than a Borrower), a Credit Party shall be the surviving
entity;
(c) the business to be acquired shall be similar or complementary to the
lines of business of the Companies;
(d) the Companies shall be in full compliance with the Loan Documents both
prior to and subsequent to the transaction;
(e) no Default or Event of Default shall exist prior to or after giving
effect to such Acquisition;
(f) Agilysys shall have provided to Agent and the Lenders, at least twenty
(20) days prior to such Acquisition, historical financial statements of the
target entity and a pro forma financial statement of the Companies, accompanied
by a certificate of a Financial Officer
52
showing pro forma compliance with Section 5.7 and 5.13(h) hereof, both before
and after giving effect to the proposed Acquisition;
(g) such Acquisition is not actively opposed by, and has been approved by,
the board of directors (or similar governing body) of the selling Persons or the
Persons whose equity interests are to be acquired; and
(h) the aggregate amount of Consideration for each such Acquisition shall
not exceed:
(i) One Hundred Million Dollars ($100,000,000) if, at the time of such
Acquisition, Agilysys has (A) (1) an S&P Rating of lower than BBB-, (2) a
Moody's Rating of lower than Baa3, or (3) no Credit Rating; and (B) a
Leverage Ratio, determined after giving pro forma effect to such
Acquisition, equal to or greater than 2.00 to 1.00; and
(ii) Two Hundred Million Dollars ($200,000,000) if, at the time of
such Acquisition, Agilysys has (A) (1) an S&P Rating of lower than BBB-,
(2) a Moody's Rating of lower than Baa3, or (3) no Credit Rating; and (B) a
Leverage Ratio, determined after giving pro forma effect to such
Acquisition, less than 2.00 to 1.00;
provided that any Acquisition or potential Acquisition that was disclosed in
writing to Agent prior to the Closing Date shall not be subject to the
limitations of this subsection (h) so long as Agent approved such Acquisition
prior to the Closing Date.
Section 5.14. Notice. Each Borrower shall cause a Financial Officer of such
Borrower to promptly notify Agent and the Lenders, in writing, whenever a
Default or Event of Default may occur hereunder or any representation or
warranty made in Article VI hereof or elsewhere in this Agreement or in any
Related Writing may for any reason cease in any material respect to be true and
complete.
Section 5.15. Restricted Payments. No Company shall make or commit itself
to make any Restricted Payment, except that such Company may make Restricted
Payments so long as the Companies shall be in full compliance with the Loan
Documents both prior to and after giving effect to such Capital Distribution.
Section 5.16. Environmental Compliance. Each Company shall comply in all
material respects with any and all Environmental Laws including, without
limitation, all Environmental Laws in jurisdictions in which such Company owns
or operates a facility or site, arranges for disposal or treatment of hazardous
substances, solid waste or other wastes, accepts for transport any hazardous
substances, solid waste or other wastes or holds any interest in real property
or otherwise. Borrowers shall furnish to the Lenders, promptly after receipt
thereof, a copy of any notice such Company may receive from any Governmental
Authority or private Person or otherwise that any material litigation or
proceeding pertaining to any environmental, health or safety matter has been
filed or is threatened against such Company, any real property in which such
Company holds any interest or any past or present operation of such Company. No
53
Company shall allow the release or disposal of hazardous waste, solid waste or
other wastes on, under or to any real property in which any Company holds any
ownership interest or performs any of its operations, in violation of any
Environmental Law. As used in this Section 5.16, "litigation or proceeding"
means any demand, claim, notice, suit, suit in equity action, administrative
action, investigation or inquiry whether brought by any Governmental Authority
or private Person, or otherwise. US Borrowers (and any Foreign Borrower, as
applicable) shall defend, indemnify and hold Agent and the Lenders harmless
against all properly documented costs, expenses, claims, damages, penalties and
liabilities of every kind or nature whatsoever (including attorneys' fees)
arising out of or resulting from the noncompliance of any Company with any
Environmental Law. Such indemnification shall survive any termination of this
Agreement.
Section 5.17. Affiliate Transactions. No Company shall, directly or
indirectly, enter into or permit to exist any transaction (including, without
limitation, the purchase, sale, lease or exchange of any property or the
rendering of any service) with any Affiliate (other than a Company that is a
Credit Party or a Foreign Subsidiary) on terms that shall be less favorable to
such Company than those that might be obtained at the time in a transaction with
a non-Affiliate; provided, however, that the foregoing shall not prohibit the
payment of customary and reasonable directors' fees to directors who are not
employees of a Company or an Affiliate.
Section 5.18. Use of Proceeds. Borrowers' use of the proceeds of the Loans
shall be solely for working capital and other general corporate purposes
(including Acquisitions and capital expenditures) of the Companies and for the
refinancing of existing Indebtedness.
Section 5.19. Corporate Names. No Company shall change its corporate name
or its state, province or other jurisdiction of organization, unless, in each
case, Administrative Borrower shall have provided Agent and the Lenders with at
least five days prior written notice thereof.
Section 5.20. Subsidiary Guaranties and Pledge of Stock or Other Ownership
Interest.
(a) Subsidiary Guaranties. Each Domestic Subsidiary (that is not an
Excluded Subsidiary) created, acquired or held subsequent to the Closing Date,
shall promptly execute and deliver to Agent, for the benefit of the Lenders, a
Guaranty of Payment of all of the Obligations (which Guaranty of Payment shall
be subject to the provisions of Section 2.11 hereof), to be in form and
substance acceptable to Agent, along with any corporate governance and
authorization documents, and an opinion of counsel as may be deemed reasonably
necessary or advisable by Agent.
(b) Pledge of Stock or Other Ownership Interest. If, as of the last day of
any fiscal quarter, the Obligor Asset Ratio or the Obligor EBITDA Ratio shall be
less than 0.80 to 1.00, then Administrative Borrower shall provide prompt
written notice to Agent and the Lenders and shall pledge, or cause a Domestic
Subsidiary to pledge, within sixty (60) days of such notice, sixty-five percent
(65%) of the outstanding shares or other ownership interests of first-tier
Foreign Subsidiaries that would cause, with the addition of such Foreign
Subsidiaries as Pledged Foreign Subsidiaries, the Obligor Asset Ratio and the
Obligor EBITDA Ratio to be equal to or
54
greater than 0.80 to 1.00. Any pledge by a Credit Party pursuant to this
subsection (b) shall be evidenced by a pledge agreement, in form and substance
reasonably satisfactory to Agent, executed by the appropriate Credit Party, with
the requisite share certificates or other evidence of equity, if any, to be
delivered to Agent, for the benefit of the Lenders.
(c) Perfection or Registration of Interest in Foreign Shares. With respect
to any foreign shares pledged to Agent, for the benefit of the Lenders, on or
after the Closing Date, Agent shall at all times, in the discretion of the
Required Lenders, have the right to perfect, at US Borrowers' cost, payable upon
request therefor (including any reasonable and properly documented expenses
relating to foreign counsel, or foreign notary, filing, registration or similar,
fees, costs or expenses), its security interest in such shares in the respective
foreign jurisdiction.
Section 5.21. Restrictive Agreements. Except as set forth in this
Agreement, until after the Guaranty Effectiveness Date, Borrowers shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary to (a) make, directly or
indirectly, any Capital Distribution to any Borrower, (b) make, directly or
indirectly, loans or advances or capital contributions to any Borrower or (c)
transfer, directly or indirectly, any of the properties or assets of such
Subsidiary to any Borrower; except for such encumbrances or restrictions
existing under or by reason of (i) applicable law, (ii) customary non-assignment
provisions in leases or other agreements entered in the ordinary course of
business and consistent with past practices, (iii) customary restrictions in
security agreements or mortgages securing Indebtedness, or capital leases, of a
Company to the extent such restrictions shall only restrict the transfer of the
property subject to such security agreement, mortgage or lease, or (iv)
customary restrictions in agreements executed by Foreign Subsidiaries in
connection with foreign financing arrangements.
Section 5.22. Other Covenants. In the event that any Company shall enter
into, or shall have entered into, any Material Indebtedness Agreement, wherein
the covenants and agreements contained therein shall be more restrictive than
the covenants set forth herein, then the Companies shall be bound hereunder by
such more restrictive covenants and agreements with the same force and effect as
if such covenants and agreements were written herein.
Section 5.23. Guaranty Under Material Indebtedness Agreement. Neither
Agilysys nor any Domestic Subsidiary shall be or become a Guarantor of the
Indebtedness incurred pursuant to any Material Indebtedness Agreement unless
such Company shall also be a Guarantor of Payment under this Agreement prior to
or concurrently therewith.
Section 5.24. Pari Passu Ranking. The Obligations shall, and Agilysys shall
take all necessary action to ensure that the Obligations shall, at all times,
rank at least pari passu in right of payment with all other senior unsecured
Indebtedness of Agilysys.
Section 5.25. Amendment of Organizational Documents. No Company shall amend
its Organizational Documents in any material respect without providing Agent and
the Lenders with prior written notice thereof.
55
Section 5.26. Other Indebtedness. Agilysys shall not suffer or permit any
Company to make any amendment, supplement or modification to the Senior Notes
Indenture or any agreements or instruments executed in connection therewith.
ARTICLE VI. REPRESENTATIONS AND WARRANTIES
Section 6.1. Corporate Existence; Subsidiaries; Foreign Qualification. Each
Company is duly organized, validly existing, and in good standing under the laws
of its state or jurisdiction of incorporation or organization and is duly
qualified and authorized to do business and is in good standing as a foreign
entity in all of the states or jurisdictions where the character of its property
or its business activities makes such qualification necessary, except where a
failure to so qualify will not cause or result in a Material Adverse Effect.
Schedule 6.1 hereto sets forth, as of the Closing Date, each Subsidiary of a
Borrower (and whether such Subsidiary is an Excluded Subsidiary), its state of
formation, its relationship to each Borrower, including the percentage of each
class of stock or membership interests owned by a Company, the location of its
chief executive office and its principal place of business. Except as set forth
on Schedule 6.1 hereto, on the date hereof, each Borrower owns all of the equity
interests of each of its Subsidiaries.
Section 6.2. Corporate Authority. Each Credit Party has the right and power
and is duly authorized and empowered to enter into, execute and deliver the Loan
Documents to which it is a party and to perform and observe the provisions of
the Loan Documents. The Loan Documents to which each Credit Party is a party
have been duly authorized and approved by such Credit Party's board of directors
or other governing body, as applicable, and are the valid and binding
obligations of such Credit Party, enforceable against such Credit Party in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by equitable principles (regardless of whether
enforcement is sought in equity or at law). The execution, delivery and
performance of the Loan Documents will not conflict with, result in a breach in
any of the provisions of, constitute a default under, or result in the creation
of a Lien (other than Liens permitted under Section 5.9 hereof) upon any assets
or property of any Company under the provisions of, such Company's
Organizational Documents or any material agreement.
Section 6.3. Compliance with Laws and Contracts. Each Company:
(a) holds all material permits, certificates, licenses, orders,
registrations, franchises, authorizations, and other approvals from any
Governmental Authority necessary for the conduct of its business and is in
compliance with all applicable laws relating thereto on the Closing Date, except
where the failure to so hold or so comply would not have or result in a Material
Adverse Effect, after the Closing Date;
(b) is in material compliance with all federal, state, local, or foreign
applicable statutes, rules, regulations, and orders including, without
limitation, those relating to environmental protection, occupational safety and
health, and equal employment practices on the Closing Date except where the
failure to be in compliance would not have or result in a Material Adverse
Effect, after the Closing Date;
56
(c) is not in violation of or in default under any material agreement to
which it is a party or by which its assets are subject or bound on the Closing
Date, except with respect to any violation or default that would not have or
result in a Material Adverse Effect, after the Closing Date;
(d) shall ensure that no Person who owns a controlling interest in or
otherwise controls a Company is or shall be (i) listed on the Specially
Designated Nationals and Blocked Person List maintained by the Office of Foreign
Assets Control ("OFAC"), Department of the Treasury, or any other similar lists
maintained by OFAC pursuant to any authorizing statute, executive order or
regulation, or (ii) a Person designated under Section 1(b), (c) or (d) of
Executive Order No. 13224 (September 23, 2001), any related enabling legislation
or any other similar executive orders;
(e) comply with all applicable Bank Secrecy Act ("BSA") and anti-money
laundering laws and regulations; and
(f) is in compliance, in all material respects, with the Patriot Act.
Section 6.4. Litigation and Administrative Proceedings. Except as disclosed
on Schedule 6.4 hereto, there are (a) no lawsuits, actions, investigations, or
other proceedings pending or threatened against any Company, or in respect of
which any Company may have any liability, in any court or before any
Governmental Authority, arbitration board or other tribunal, which Borrowers
reasonably expect to have a Material Adverse Effect, (b) no orders, writs,
injunctions, judgments, or decrees of any court or government agency or
instrumentality to which any Company is a party or by which the property or
assets of any Company are bound, which Borrowers reasonably expect to have a
Material Adverse Effect, or (c) no grievances, disputes, or controversies
outstanding with any union or other organization of the employees of any
Company, or threats of work stoppage, strike, or pending demands for collective
bargaining.
Section 6.5. Title to Assets. Each Company has good title to and ownership
of all property it purports to own, which property is free and clear of all
Liens, except those permitted under Section 5.9 hereof.
Section 6.6. Liens and Security Interests. On and after the Closing Date,
except for Liens permitted pursuant to Section 5.9 hereof, (a) there is and will
be no U.C.C. Financing Statement or similar notice of Lien outstanding covering
any personal property of any Company; (b) there is no mortgage outstanding
covering any real property of any Company; and (c) no real or personal property
of any Company is subject to any security interest or Lien of any kind.
Section 6.7. Tax Returns. All federal, state and local tax returns and
other reports required by law to be filed in respect of the income, business,
properties and employees of each Company have been filed and all taxes,
assessments, fees and other governmental charges that are due and payable have
been paid, except as otherwise permitted herein. The provision for taxes on the
books of each Company is adequate for all years not closed by applicable
statutes and for the current fiscal year.
57
Section 6.8. Environmental Laws. Each Company is in substantial compliance
with all Environmental Laws, including, without limitation, all Environmental
Laws in all jurisdictions in which any Company owns or operates, or has owned or
operated, a facility or site, arranges or has arranged for disposal or treatment
of hazardous substances, solid waste or other wastes, accepts or has accepted
for transport any hazardous substances, solid waste or other wastes or holds or
has held any interest in real property or otherwise. No material litigation or
proceeding arising under, relating to or in connection with any Environmental
Law is pending or, to the best knowledge of each Company, threatened, against
any Company, any real property in which any Company holds or has held an
interest or any past or present operation of any Company. No material release,
threatened release or disposal of hazardous waste, solid waste or other wastes
is occurring, or has occurred (other than those that are currently being cleaned
up in accordance with Environmental Laws), on, under or to any real property in
which any Company holds any interest or performs any of its operations, in
violation of any Environmental Law. As used in this Section 6.8., "litigation or
proceeding" means any demand, claim, notice, suit, suit in equity, action,
administrative action, investigation or inquiry whether brought by any
Governmental Authority or private Person, or otherwise.
Section 6.9. Continued Business. There exists no actual, pending, or, to
Agilysys' knowledge, any threatened termination, cancellation or limitation of,
or any modification or change in the business relationship of any Company and
any customer or supplier, or any group of customers or suppliers, which Agilysys
reasonably expects to have a Material Adverse Effect, and there exists no
present condition or state of facts or circumstances that would have a Material
Adverse Effect.
Section 6.10. Employee Benefits Plans. Schedule 6.10 hereto identifies each
ERISA Plan as of the Closing Date. No ERISA Event has occurred or is expected to
occur with respect to an ERISA Plan. Full payment has been made of all amounts
that a Controlled Group member is required, under applicable law or under the
governing documents, to have paid as a contribution to or a benefit under each
ERISA Plan. The liability of each Controlled Group member with respect to each
ERISA Plan qualified under Code Section 401(a) has been fully funded based upon
reasonable and proper actuarial assumptions, has been fully insured, or has been
fully reserved for on its financial statements. No changes have occurred or are
expected to occur that would cause a material increase in the cost of providing
benefits under the ERISA Plan. With respect to each ERISA Plan that is intended
to be qualified under Code Section 401(a), (a) the ERISA Plan and any associated
trust operationally comply with the applicable requirements of Code Section
401(a) in all material respects or are subject to cure under a correction
program approved by a Governmental Authority; (b) the ERISA Plan and any
associated trust have been amended to comply with all such requirements as
currently in effect, other than those requirements for which a retroactive
amendment can be made within the "remedial amendment period" available under
Code Section 401(b) (as extended under Treasury Regulations and other Treasury
pronouncements upon which taxpayers may rely); (c) to the extent applicable, the
ERISA Plan and any associated trust have received a favorable determination
letter from the Internal Revenue Service stating that the ERISA Plan qualifies
under Code Section 401(a), that the associated trust qualifies under Code
Section 501(a) and, if applicable, that any cash or deferred arrangement under
the ERISA Plan qualifies under Code
58
Section 401(k), unless the ERISA Plan was first adopted at a time for which the
above-described "remedial amendment period" has not yet expired; (d) the ERISA
Plan currently satisfies the requirements of Code Section 410(b), subject to any
retroactive amendment that may be made within the above-described "remedial
amendment period"; and (e) no contribution made to the ERISA Plan is subject to
an excise tax under Code Section 4972. With respect to any Pension Plan
qualified under Code Section 401(a), the "accumulated benefit obligation" of
Controlled Group members with respect to the Pension Plan (as determined in
accordance with Statement of Accounting Standards No. 87, "Employers' Accounting
for Pensions") does not exceed the fair market value of Pension Plan assets.
Section 6.11. Consents or Approvals. No consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority or
any other Person is required to be obtained or completed by any Company in
connection with the execution, delivery or performance of any of the Loan
Documents, that has not already been obtained or completed.
Section 6.12. Solvency.
(a) US Borrowers. Each US Borrower has received consideration that is the
reasonable equivalent value of the obligations and liabilities that such US
Borrower has incurred to Agent and the Lenders. No US Borrower is insolvent as
defined in any applicable state, federal or relevant foreign statute, nor will
such US Borrower be rendered insolvent by the execution and delivery of the Loan
Documents to Agent and the Lenders. No US Borrower is engaged or about to engage
in any business or transaction for which the assets retained by it are or will
be an unreasonably small amount of capital, taking into consideration the
obligations to Agent and the Lenders incurred hereunder. No US Borrower intends
to, nor does it believe that it will, incur debts beyond its ability to pay such
debts as they mature.
(b) Foreign Borrowers. Each Foreign Borrower has received consideration
that is the reasonable equivalent value of the obligations and liabilities that
such Foreign Borrower has incurred to the Lenders. No Foreign Borrower is
insolvent as defined in any applicable state, federal or relevant foreign
statute, nor will such Foreign Borrower be rendered insolvent by the execution
and delivery of the Loan Documents to Agent and the Lenders. No Foreign Borrower
has liabilities, including contingent liabilities, greater than its assets. No
Foreign Borrower intends to, nor does it believe that it will, incur debts
beyond its ability to pay such debts as they mature.
Section 6.13. Financial Statements. Agilysys' Annual Report on Form 10-K
filed with the SEC for the fiscal year ended March 31, 2005 and Agilysys'
Quarterly Report on Form 10-Q filed with the SEC for the fiscal quarter ended
June 30, 2005, are true and complete, have been prepared in accordance with
GAAP, and fairly present the Consolidated financial condition of Agilysys as of
the dates of such financial statements and the results of Agilysys' Consolidated
operations for the periods then ending. Since the ending dates of the periods
addressed in such reports, there has been no material adverse change in any
Company's financial condition, properties or business or any change in any
Company's accounting procedures.
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Section 6.14. Regulations. No Company is engaged principally or as one of
its important activities, in the business of extending credit for the purpose of
purchasing or carrying any "margin stock" (within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System of the United States of
America). Neither the granting of any Loan (or any conversion thereof) or Letter
of Credit nor the use of the proceeds of any Loan or Letter of Credit will
violate, or be inconsistent with, the provisions of Regulation T, U or X or any
other Regulation of such Board of Governors.
Section 6.15. Material Agreements. Except as disclosed on Schedule 6.15
hereto, as of the Closing Date, no Company is a party to any (a) debt instrument
(excluding the Loan Documents); (b) lease (capital, operating or otherwise),
whether as lessee or lessor thereunder; or (c) collective bargaining agreement;
that, as to subsections (a) through (c), above, if violated, breached, or
terminated for any reason, would have or would be reasonably expected to have a
Material Adverse Effect.
Section 6.16. Intellectual Property. Each Company owns or has the right to
use all of the material patents, patent applications, industrial designs,
designs, trademarks, service marks, copyrights and licenses, and rights with
respect to the foregoing, reasonably necessary for the conduct of its business
without any known conflict with the rights of others.
Section 6.17. Insurance. Each Company maintains with financially sound and
reputable insurers insurance with coverage and limits as required by law and as
is customary with Persons engaged in the same businesses as the Companies.
Section 6.18. Accurate and Complete Statements. Neither the Loan Documents
nor any written statement made by any Company in connection with any of the Loan
Documents contains any untrue statement of a material fact or omits a material
fact necessary to make the statements contained therein or in the Loan Documents
not misleading. After due inquiry by Borrowers, there is no known fact that any
Company has not disclosed to Agent and the Lenders that has or is likely to have
a Material Adverse Effect.
Section 6.19. Investment Company; Holding Company. Agilysys is not (a) an
"investment company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended, or (b) subject to
regulation under any foreign, federal, state or local statute or regulation
limiting its ability to incur Indebtedness.
Section 6.20. Defaults. No Default or Event of Default exists hereunder,
nor will any begin to exist immediately after the execution and delivery hereof.
ARTICLE VII. EVENTS OF DEFAULT
Each of the following shall constitute an Event of Default hereunder:
Section 7.1. Payments. If (a) the interest on any Loan or any facility or
other fee shall not be paid in full when due and payable or within five Business
Days thereafter, or (b) the
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principal of any Loan or any obligation under any Letter of Credit shall not be
paid in full when due and payable.
Section 7.2. Special Covenants. If any Company shall fail or omit to
perform and observe Section 5.7, 5.8, 5.9, 5.11, 5.12, 5.13, 5.15, 5.22 or 5.23
hereof.
Section 7.3. Other Covenants. If any Company shall fail or omit to perform
and observe any agreement or other provision (other than those referred to in
Section 7.1 or 7.2 hereof) contained or referred to in this Agreement or any
Related Writing that is on such Company's part to be complied with, and that
Default shall not have been fully corrected within thirty (30) days after the
earlier of (a) any Financial Officer of such Company becomes aware of the
occurrence thereof, or (b) the giving of written notice thereof to
Administrative Borrower by Agent or the Required Lenders that the specified
Default is to be remedied.
Section 7.4. Representations and Warranties. If any representation,
warranty or statement made in or pursuant to this Agreement or any Related
Writing or any other material information furnished by any Company to Agent or
the Lenders, or any thereof, or any other holder of any Note, shall be false or
erroneous in any material respect.
Section 7.5. Cross Default.
(a) If any Company shall default in the payment of any amount due and owing
under any Material Indebtedness Agreement beyond any period of grace provided
with respect thereto or in the performance or observance of any other agreement,
term or condition contained in any agreement under which such obligation is
created, if the effect of such default is to allow the acceleration of the
maturity of such Indebtedness or to permit the holder thereof to cause such
Indebtedness to become due prior to its stated maturity.
(b) If an "event of default", a "default" or an event with which the
passage of time or the giving of notice, or both, would cause a default or event
of default (other than defaults that have been cured within applicable grace
periods or have otherwise been waived) shall occur under the Agreement for
Inventory Financing or the Senior Notes Indenture.
Section 7.6. ERISA Default. The occurrence of one or more ERISA Events that
(a) the Required Lenders reasonably determine could have a Material Adverse
Effect, or (b) results in a Lien on any of the assets of any Company, in the
aggregate for all such Liens for all Companies in excess of Two Million Dollars
($2,000,000)
Section 7.7. Change in Control. If any Change in Control shall occur.
Section 7.8. Money Judgment. A final judgment or order for the payment of
money shall be rendered against any Company by a court of competent
jurisdiction, that remains unpaid or unstayed and undischarged for a period
(during which execution shall not be effectively stayed) of thirty (30) days
after the date on which the right to appeal has expired, provided that the
aggregate of all such judgments for all such Companies shall exceed Ten Million
Dollars ($10,000,000).
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Section 7.9. Material Adverse Change. There shall have occurred any
condition or event that Agent or the Required Lenders reasonably determine, in
the exercise of their good faith reasonable credit judgment, has or is
reasonably likely to have a Material Adverse Effect.
Section 7.10. Validity of Loan Documents. (a) Any material provision, in
the sole opinion of Agent, of any Loan Document shall at any time for any reason
cease to be valid, binding and enforceable against any Credit Party; (b) the
validity, binding effect or enforceability of any Loan Document against any
Credit Party shall be contested by any Credit Party; (c) any Credit Party shall
deny that it has any or further liability or obligation under any Loan Document;
or (d) any Loan Document shall be terminated, invalidated or set aside, or be
declared ineffective or inoperative or in any way cease to give or provide to
Agent and the Lenders the benefits purported to be created thereby.
Section 7.11. Solvency. If any Company (other than an Excluded Subsidiary)
shall (a) discontinue business, (b) generally not pay its debts as such debts
become due, (c) make a general assignment for the benefit of creditors, (d)
apply for or consent to the appointment of a receiver, a custodian, a trustee,
an interim trustee or liquidator of all or a substantial part of its assets or
of such Company, (e) be adjudicated a debtor or insolvent or have entered
against it an order for relief under Title 11 of the United States Code, or
under any other bankruptcy insolvency, liquidation, winding-up, corporate or
similar statute or law, foreign, federal state or provincial, in any applicable
jurisdiction, now or hereafter existing, as any of the foregoing may be amended
from time to time, or other applicable statute for jurisdictions outside of the
United States, as the case may be, (f) file a voluntary petition in bankruptcy,
or file a proposal or notice of intention to file a proposal or have an
involuntary proceeding filed against it and the same shall continue undismissed
for a period of thirty (30) days from commencement of such proceeding or case,
or file a petition or an answer or an application or a proposal seeking
reorganization or an arrangement with creditors or seeking to take advantage of
any other law (whether federal or state, or, if applicable, other jurisdiction)
relating to relief of debtors, or admit (by answer, by default or otherwise) the
material allegations of a petition filed against it in any bankruptcy,
reorganization, insolvency or other proceeding (whether federal or state, or, if
applicable, other jurisdiction) relating to relief of debtors, (g) suffer or
permit to continue unstayed and in effect for thirty (30) consecutive days any
judgment, decree or order entered by a court of competent jurisdiction, that
approves a petition or an application or a proposal seeking its reorganization
or appoints an interim receiver, a receiver and manager, an administrator,
custodian, trustee, interim trustee or liquidator of all or a substantial part
of its assets or of such Company, (h) have an administrative receiver appointed
over the whole or substantially the whole of its assets, (i) have assets, the
value of which is less than its liabilities (taking into account prospective and
contingent liabilities), or (j) have a moratorium declared in respect of any of
its Indebtedness, or any analogous procedure or step is taken in any
jurisdiction.
ARTICLE VIII. REMEDIES UPON DEFAULT
Notwithstanding any contrary provision or inference herein or elsewhere;
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Section 8.1. Optional Defaults. If any Event of Default referred to in
Section 7.1, 7.2, 7.3, 7.4, 7.5, 7.6, 7.7, 7.8, 7.9 or 7.10 hereof shall occur,
Agent may, with the consent of the Required Lenders, and shall, at the written
request of the Required Lenders, give written notice to Administrative Borrower
to:
(a) terminate the Commitment, if not previously terminated, and,
immediately upon such election, the obligations of the Lenders, and each
thereof, to make any further Loan and the obligation of the Fronting Lender to
issue any Letter of Credit immediately shall be terminated; and/or
(b) accelerate the maturity of all of the Obligations (if the Obligations
are not already due and payable), whereupon all of the Obligations shall become
and thereafter be immediately due and payable in full without any presentment or
demand and without any further or other notice of any kind, all of which are
hereby waived by each Borrower.
Section 8.2. Automatic Defaults. If any Event of Default referred to in
Section 7.11 hereof shall occur:
(a) all of the Commitment shall automatically and immediately terminate, if
not previously terminated, and no Lender thereafter shall be under any
obligation to grant any further Loan, nor shall the Fronting Lender be obligated
to issue any Letter of Credit; and
(b) the principal of and interest then outstanding on all of the Loans, and
all of the other Obligations, shall thereupon become and thereafter be
immediately due and payable in full (if the Obligations are not already due and
payable), all without any presentment, demand or notice of any kind, which are
hereby waived by each Borrower.
Section 8.3. Letters of Credit. If the maturity of the Obligations shall be
accelerated pursuant to Section 8.1 or 8.2 hereof, US Borrowers shall
immediately deposit with Agent, as security for the obligations of US Borrowers
and any Guarantor of Payment to reimburse Agent and the Lenders for any then
outstanding Letters of Credit, cash equal to the sum of the aggregate undrawn
balance of any then outstanding Letters of Credit. Agent and the Lenders are
hereby authorized, at their option, to deduct any and all such amounts from any
deposit balances then owing by any Lender (or any affiliate of such Lender,
wherever located) to or for the credit or account of any US Borrower or Domestic
Guarantor of Payment, as security for the obligations of US Borrowers and any
Guarantor of Payment to reimburse Agent and the Lenders for any then outstanding
Letters of Credit.
Section 8.4. Offsets. If there shall occur or exist any Event of Default
referred to in Section 7.11 hereof or if the maturity of the Obligations is
accelerated pursuant to Section 8.1 or 8.2 hereof, each Lender shall have the
right at any time to set off against, and to appropriate and apply toward the
payment of, any and all of the Obligations then owing by a Borrower or Guarantor
of Payment to such Lender (including, without limitation, any participation
purchased or to be purchased pursuant to Section 2.2(b), 2.2(c) or 8.5 hereof),
whether or not the same shall then have matured, any and all deposit (general or
special) balances and all other indebtedness then held or owing by such Lender
(including, without limitation, by branches and agencies or
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any affiliate of such Lender, wherever located) to or for the credit or account
of such Borrower or Guarantor of Payment, all without notice to or demand upon
such Borrower or any other Person, all such notices and demands being hereby
expressly waived by each Borrower.
Section 8.5. Equalization Provision. Each Lender agrees with the other
Lenders that if it, at any time, shall obtain any Advantage over the other
Lenders or any thereof in respect of the Obligations (except as to Swing Loans
and Letters of Credit prior to Agent's giving of notice to participate and
except under Article III hereof), it shall purchase from the other Lenders, for
cash and at par, such additional participation in the Obligations as shall be
necessary to nullify the Advantage. If any such Advantage resulting in the
purchase of an additional participation as aforesaid shall be recovered in whole
or in part from the Lender receiving the Advantage, each such purchase shall be
rescinded, and the purchase price restored (but without interest unless the
Lender receiving the Advantage is required to pay interest on the Advantage to
the Person recovering the Advantage from such Lender) ratably to the extent of
the recovery. Each Lender further agrees with the other Lenders that if it at
any time shall receive any payment for or on behalf of any Borrower on any
indebtedness owing by any Borrower to that Lender pursuant to this Agreement
(whether by voluntary payment, by realization upon security, by reason of offset
of any deposit or other indebtedness, by counterclaim or cross-action, by the
enforcement of any right under any Loan Document, or otherwise), it will apply
such payment first to any and all Obligations owing by such Borrower to that
Lender (including, without limitation, any participation purchased or to be
purchased pursuant to this Section 8.5 or any other Section of this Agreement).
Each Credit Party agrees that any Lender so purchasing a participation from the
other Lenders or any thereof pursuant to this Section 8.5 may exercise all of
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were a direct creditor of such Credit
Party in the amount of such participation.
Section 8.6. Other Remedies. The remedies in this Article VIII are in
addition to, not in limitation of, any other right, power, privilege, or remedy,
either in law, in equity, or otherwise, to which the Lenders may be entitled.
Agent shall exercise the rights under this Article VIII and all other collection
efforts on behalf of the Lenders and no Lender shall act independently with
respect thereto, except as otherwise specifically set forth in this Agreement.
ARTICLE IX. THE AGENT
The Lenders authorize LaSalle Bank National Association and LaSalle Bank
National Association hereby agrees to act as agent for the Lenders in respect of
this Agreement upon the terms and conditions set forth elsewhere in this
Agreement, and upon the following terms and conditions:
Section 9.1. Appointment and Authorization. Each Lender hereby irrevocably
appoints and authorizes Agent to take such action as agent on its behalf and to
exercise such powers hereunder as are delegated to Agent by the terms hereof,
together with such powers as are reasonably incidental thereto, including,
without limitation, to execute Additional Borrower Assumption Agreements on
behalf of the Lenders. Neither Agent nor any of its affiliates, directors,
officers, attorneys or employees shall (a) be liable for any action taken or
omitted to be
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taken by it or them hereunder or in connection herewith, except for its or their
own gross negligence or willful misconduct (as determined by a court of
competent jurisdiction), or be responsible in any manner to any of the Lenders
for the effectiveness, enforceability, genuineness, validity or due execution of
this Agreement or any other Loan Documents, (b) be under any obligation to any
Lender to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions hereof or thereof on the part of Borrowers or
any other Company, or the financial condition of Borrowers or any other Company,
or (c) be liable to any of the Companies for consequential damages resulting
from any breach of contract, tort or other wrong in connection with the
negotiation, documentation, administration or collection of the Loans or Letters
of Credit or any of the Loan Documents. Notwithstanding any provision to the
contrary contained in this Agreement or in any other Loan Document, Agent shall
not have any duty or responsibility except those expressly set forth herein, nor
shall Agent have or be deemed to have any fiduciary relationship with any Lender
or participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against Agent. Without limiting the generality of
the foregoing sentence, the use of the term "agent" herein and in other Loan
Documents with reference to Agent is not intended to connote any fiduciary or
other implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
Section 9.2. Note Holders. Agent may treat the payee of any Note as the
holder thereof (or, if there is no Note, the holder of the interest as reflected
on the books and records of Agent) until written notice of transfer shall have
been filed with Agent, signed by such payee and in form satisfactory to Agent.
Section 9.3. Consultation With Counsel. Agent may consult with legal
counsel selected by Agent and shall not be liable for any action taken or
suffered in good faith by Agent in accordance with the opinion of such counsel.
Section 9.4. Documents. Agent shall not be under any duty to examine into
or pass upon the validity, effectiveness, genuineness or value of any Loan
Document or any other Related Writing furnished pursuant hereto or in connection
herewith or the value of any collateral obtained hereunder, and Agent shall be
entitled to assume that the same are valid, effective and genuine and what they
purport to be.
Section 9.5. Agent and Affiliates. LaSalle Bank National Association
("LaSalle") and its affiliates may make loans to, issue letters of credit for
the account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with the Companies and Affiliates as though LaSalle were not Agent
hereunder and without notice to or consent of any Lender. Each Lender
acknowledges that, pursuant to such activities, LaSalle or its affiliates may
receive information regarding any Company or any Affiliate (including
information that may be subject to confidentiality obligations in favor of such
Company or such Affiliate) and acknowledge that Agent shall be under no
obligation to provide such information to other Lenders. With respect to Loans
and Letters of Credit (if any), LaSalle and its affiliates shall have the same
rights and powers under
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this Agreement as any other Lender and may exercise the same as though LaSalle
were not Agent, and the terms "Lender" and "Lenders" include LaSalle and its
affiliates, to the extent applicable, in their individual capacities.
Section 9.6. Knowledge of Default. It is expressly understood and agreed
that Agent shall be entitled to assume that no Default or Event of Default has
occurred, unless Agent has been notified by a Lender in writing that such Lender
believes that a Default or Event of Default has occurred and is continuing and
specifying the nature thereof or has been notified by a Borrower pursuant to
Section 5.14 hereof.
Section 9.7. Action by Agent. Subject to the other terms and conditions
hereof, so long as Agent shall be entitled, pursuant to Section 9.6 hereof, to
assume that no Default or Event of Default shall have occurred and be
continuing, Agent shall be entitled to use its discretion with respect to
exercising or refraining from exercising any rights that may be vested in it by,
or with respect to taking or refraining from taking any action or actions that
it may be able to take under or in respect of, this Agreement. Agent shall incur
no liability under or in respect of this Agreement by acting upon any notice,
certificate, warranty or other paper or instrument believed by it to be genuine
or authentic or to be signed by the proper party or parties, or with respect to
anything that it may do or refrain from doing in the reasonable exercise of its
judgment, or that may seem to it to be necessary or desirable in the premises.
Section 9.8. Release of Guarantor of Payment or Pledge of Stock. In the
event of a merger, sale of assets or other transaction permitted pursuant to
Section 5.12 hereof and so long as there is no Default or Event of Default
existing, Agent, at the request and expense of US Borrowers, is hereby
authorized by the Lenders to release, in connection therewith, one or more
Guarantors of Payment or pledge of stock, as appropriate, upon the written
request of Administrative Borrower.
Section 9.9. Notices, Default. In the event that Agent shall (a) have been
notified by a Lender in writing that such Lender believes that a Default or
Event of Default has occurred and is continuing, or (b) have actual knowledge of
a Default or Event of Default due to the default in the payment of principal,
interest and fees required to be paid to Agent for the account of the Lenders,
Agent shall promptly notify the Lenders and shall take such action and assert
such rights under this Agreement as the Required Lenders shall direct and Agent
shall inform the other Lenders in writing of the action taken. Agent may take
such action and assert such rights as it deems to be advisable, in its
discretion, for the protection of the interests of the holders of the
Obligations.
Section 9.10. Delegation of Duties. Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents, employees
or attorneys-in-fact and shall be entitled to advice of counsel and other
consultants or experts concerning all matters pertaining to such duties. Agent
shall not be responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects in the absence of gross negligence or willful
misconduct, as determined by a court of competent jurisdiction.
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Section 9.11. Indemnification of Agent. The Lenders agree to indemnify
Agent (to the extent not reimbursed by Borrowers) ratably, according to their
respective Commitment Percentages, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including reasonable attorneys' fees and expenses) or disbursements of
any kind or nature whatsoever that may be imposed on, incurred by or asserted
against Agent in its capacity as agent in any way relating to or arising out of
this Agreement or any Loan Document or any action taken or omitted by Agent with
respect to this Agreement or any Loan Document, provided that no Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including reasonable
attorneys' fees) or disbursements resulting from Agent's gross negligence or
willful misconduct (as determined by a court of competent jurisdiction), or from
any action taken or omitted by Agent in any capacity other than as agent under
this Agreement or any other Loan Document. No action taken in accordance with
the directions of the Required Lenders shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section 9.11. The
undertaking in this Section 9.11 shall survive repayment of the Loans,
cancellation of the Notes, if any, expiration or termination of the Letters of
Credit, termination of the Commitment, any foreclosure under, or modification,
release or discharge of, any or all of the Loan Documents, termination of this
Agreement and the resignation or replacement of the agent.
Section 9.12. Successor Agent. Agent may resign as agent hereunder by
giving not fewer than thirty (30) days prior written notice to Administrative
Borrower and the Lenders. If Agent shall resign under this Agreement, then
either (a) the Required Lenders shall appoint from among the Lenders a successor
agent for the Lenders (with the consent of Administrative Borrower so long as an
Event of Default has not occurred and which consent shall not be unreasonably
withheld), or (b) if a successor agent shall not be so appointed and approved
within the thirty (30) day period following Agent's notice to the Lenders of its
resignation, then Agent shall appoint a successor agent that shall serve as
agent until such time as the Required Lenders appoint a successor agent. Upon
its appointment, such successor agent shall succeed to the rights, powers and
duties as agent, and the term "Agent" shall mean such successor effective upon
its appointment, and the former agent's rights, powers and duties as agent shall
be terminated without any other or further act or deed on the part of such
former agent or any of the parties to this Agreement.
Section 9.13. Fronting Lender. The Fronting Lender shall act on behalf of
the Lenders with respect to any Letters of Credit issued by the Fronting Lender
and the documents associated therewith. The Fronting Lender shall have all of
the benefits and immunities (a) provided to Agent in Article IX hereof with
respect to any acts taken or omissions suffered by the Fronting Lender in
connection with the Letters of Credit and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Agent", as used in Article IX hereof, included the Fronting Lender with respect
to such acts or omissions, and (b) as additionally provided in this Agreement
with respect to the Fronting Lender.
Section 9.14. Agent May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Credit Party, (a) Agent (irrespective of whether the principal of any Loan
shall then be due and payable as herein expressed or by
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declaration or otherwise and irrespective of whether Agent shall have made any
demand on Borrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise, to (i) file and prove a claim for the whole amount of
the principal and interest owing and unpaid in respect of the Loans, and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders and
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and Agent and their respective agents
and counsel and all other amounts due the Lenders and Agent) allowed in such
judicial proceedings, and (ii) collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same; and (b)
any custodian, receiver, assignee, trustee, liquidator, sequestrator or other
similar official in any such judicial proceeding is hereby authorized by each
Lender to make such payments to Agent and, in the event that Agent shall consent
to the making of such payments directly to the Lenders, to pay to Agent any
amount due for the reasonable compensation, expenses, disbursements and advances
of Agent and its agents and counsel, and any other amounts due Agent. Nothing
contained herein shall be deemed to authorize Agent to authorize or consent to
or accept or adopt on behalf of any Lender any plan of reorganization,
arrangement, adjustment or composition affecting the Obligations or the rights
of any Lender or to authorize Agent to vote in respect of the claim of any
Lender in any such proceeding.
Section 9.15. Other Agents. As used in this Agreement, the term "Agent"
shall only include Agent. None of the Syndication Agent, Co-Documentation Agents
or Managing Agent shall have any rights, obligations or responsibilities
hereunder in such capacity.
ARTICLE X. MISCELLANEOUS
Section 10.1. Lenders' Independent Investigation. Each Lender, by its
signature to this Agreement, acknowledges and agrees that Agent has made no
representation or warranty, express or implied, with respect to the
creditworthiness, financial condition, or any other condition of any Company or
with respect to the statements contained in any information memorandum furnished
in connection herewith or in any other oral or written communication between
Agent and such Lender. Each Lender represents that it has made and shall
continue to make its own independent investigation of the creditworthiness,
financial condition and affairs of the Companies in connection with the
extension of credit hereunder, and agrees that Agent has no duty or
responsibility, either initially or on a continuing basis, to provide any Lender
with any credit or other information with respect thereto (other than such
notices as may be expressly required to be given by Agent to the Lenders
hereunder), whether coming into its possession before the first Credit Event
hereunder or at any time or times thereafter. Each Lender further represents
that it has reviewed each of the Loan Documents.
Section 10.2. No Waiver; Cumulative Remedies. No omission or course of
dealing on the part of Agent, any Lender or the holder of any Note (or, if there
is no Note, the holder of the interest as reflected on the books and records of
Agent) in exercising any right, power or remedy hereunder or under any of the
Loan Documents shall operate as a waiver thereof; nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy
hereunder or under any of
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the Loan Documents. The remedies herein provided are cumulative and in addition
to any other rights, powers or privileges held by operation of law, by contract
or otherwise.
Section 10.3. Amendments, Waivers and Consents.
(a) General Rule. No amendment, modification, termination, or waiver of any
provision of any Loan Document nor consent to any variance therefrom, shall be
effective unless the same shall be in writing and signed by the Required Lenders
and then such waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
(b) Exceptions to the General Rule. Anything herein to the contrary
notwithstanding, no amendment, modification, waiver or consent shall (i) extend
or increase the Commitment of any Lender without the written consent of such
Lender, (ii) extend the date scheduled for payment of any principal (excluding
mandatory prepayments) of or interest on the Loans or any fees payable hereunder
without the written consent of each Lender directly affected thereby, (iii)
reduce the principal amount of any Loan, the rate of interest thereon or any
fees payable hereunder, without the consent of each Lender directly affected
thereby (except for periodic adjustments of interest rates and fees resulting
from a change in the Applicable Margin as provided for in this Agreement), (iv)
except pursuant to Section 9.8 hereof, release any party from its obligations
under any Guaranty of Payment or Pledge Agreement, or (v) change any percentage
voting requirement, voting rights, or the Required Lenders definition in this
Agreement, or amend this Section 10.3 or Section 8.5 hereof. Furthermore,
anything herein to the contrary notwithstanding, (A) no provision of this
Agreement affecting Agent in its capacity as such shall be amended, modified or
waived without the consent of Agent; (B) no provision of this Agreement relating
to the rights or duties of the Fronting Lender in its capacity as such shall be
amended, modified or waived without the consent of the Fronting Lender; and (C)
no provision of this Agreement relating to the rights or duties of the Swing
Line Lender in its capacity as such shall be amended, modified or waived without
the consent of the Swing Line Lender.
(c) Generally. Notice of amendments or consents ratified by the Lenders
hereunder shall be forwarded by Agent to all of the Lenders. Each Lender or
other holder of a Note (or interest in any Loan) shall be bound by any
amendment, waiver or consent obtained as authorized by this Section 10.3,
regardless of its failure to agree thereto.
Section 10.4. Notices. All notices, requests, demands and other
communications provided for hereunder shall be in writing and, if to a Borrower,
mailed or delivered to it, addressed to it at the address specified on the
signature pages of this Agreement, if to a Lender, mailed or delivered to it,
addressed to the address of such Lender specified on the signature pages of this
Agreement, or, as to each party, at such other address as shall be designated by
such party in a written notice to each of the other parties. All notices,
statements, requests, demands and other communications provided for hereunder
shall be deemed to be given or made when hand-delivered, delivered by overnight
courier or two Business Days after being deposited in the mails with postage
prepaid by registered or certified mail, addressed as aforesaid, or sent by
facsimile with telephonic confirmation of receipt (if received during a Business
Day, otherwise by telephonic confirmation of receipt the following Business
Day), except that notices from a
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Borrower to Agent or the Lenders pursuant to any of the provisions hereof shall
not be effective until received by Agent or the Lenders, as the case may be. For
purposes of Article II hereof, Agent shall be entitled to rely on telephonic
instructions from any person that Agent in good faith believes is an Authorized
Officer of a Borrower, and Borrowers shall hold Agent and each Lender harmless
from any loss, cost or expense resulting from any such reliance.
Section 10.5. Costs, Expenses and Taxes. US Borrowers agree to pay on
demand all reasonable and properly documented costs and expenses of Agent,
including, but not limited to, (a) syndication, administration, travel and
out-of-pocket expenses, including but not limited to attorneys' fees and
expenses, of Agent in connection with the preparation, negotiation and closing
of the Loan Documents and the administration of the Loan Documents, the
collection and disbursement of all funds hereunder and the other instruments and
documents to be delivered hereunder, and (b) the reasonable and properly
documented fees and out-of-pocket expenses of special counsel for Agent, with
respect to the foregoing, and of local counsel, if any, who may be retained by
said special counsel with respect thereto. US Borrowers and any appropriate
Foreign Borrower also agree to pay on demand all properly documented costs and
expenses of Agent and the Lenders, including reasonable attorneys' fees and
expenses, in connection with the restructuring or enforcement of the
Obligations, this Agreement or any Related Writing. In addition, US Borrowers
and any appropriate Foreign Borrower shall pay any and all properly documented
stamp, transfer, documentary and other taxes, assessments, charges and fees
payable or determined to be payable in connection with the execution and
delivery of the Loan Documents, and the other instruments and documents to be
delivered hereunder, and agree to hold Agent and each Lender harmless from and
against any and all liabilities with respect to or resulting from any delay in
paying or failure to pay such taxes or fees, other than those liabilities
resulting from the gross negligence or willful misconduct of Agent, or, with
respect to amounts owing to a Lender, such Lender, in each case as determined by
a court of competent jurisdiction. All obligations provided for in this Section
10.5 shall survive any termination of this Agreement.
Section 10.6. Indemnification. Each US Borrower, and each Foreign Borrower
to the extent relating to the Loans and other credit extensions to such Foreign
Borrower, agrees to defend, indemnify and hold harmless Agent and the Lenders
(and their respective affiliates, officers, directors, attorneys, agents and
employees) from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses (including
reasonable attorneys' fees) or disbursements of any kind or nature whatsoever
that may be imposed on, incurred by or asserted against Agent or any Lender in
connection with any investigative, administrative or judicial proceeding
(whether or not such Lender or Agent shall be designated a party thereto) or any
other claim by any Person relating to or arising out of any Loan Document or any
actual or proposed use of proceeds of the Loans or any of the Obligations, or
any activities of any Company or its Affiliates; provided that no Lender nor
Agent shall have the right to be indemnified under this Section 10.6 for its own
gross negligence or willful misconduct as determined by a court of competent
jurisdiction. All obligations provided for in this Section 10.6 shall survive
any termination of this Agreement.
Section 10.7. Obligations Several; No Fiduciary Obligations. The
obligations of the Lenders hereunder are several and not joint. Nothing
contained in this Agreement and no action taken by Agent or the Lenders pursuant
hereto shall be deemed to constitute Agent or the
70
Lenders a partnership, association, joint venture or other entity. No default by
any Lender hereunder shall excuse the other Lenders from any obligation under
this Agreement; but no Lender shall have or acquire any additional obligation of
any kind by reason of such default. The relationship between Borrowers and the
Lenders with respect to the Loan Documents and the Related Writings is and shall
be solely that of debtors and creditors, respectively, and neither Agent nor any
Lender shall have any fiduciary obligation toward any Credit Party with respect
to any such documents or the transactions contemplated thereby.
Section 10.8. Execution in Counterparts. This Agreement may be executed in
any number of counterparts and by different parties hereto in separate
counterparts and by facsimile signature, each of which counterparts when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute but one and the same agreement.
Section 10.9. Binding Effect; Borrowers' Assignment. This Agreement shall
become effective when it shall have been executed by each Borrower, Agent and
each Lender and thereafter shall be binding upon and inure to the benefit of
each Borrower, Agent and each of the Lenders and their respective successors and
assigns, except that no Borrower shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of Agent and
all of the Lenders.
Section 10.10. Lender Assignments.
(a) Assignments of Commitments. Each Lender shall have the right at any
time or times to assign to an Eligible Transferee (other than to a Lender that
shall not be in compliance with this Agreement), without recourse, all or a
percentage of all of the following: (i) such Lender's Commitment, (ii) all Loans
made by that Lender, (iii) such Lender's Notes, and (iv) such Lender's interest
in any Letter of Credit or Swing Loan, and any participation purchased pursuant
to Section 2.2(b), 2.2(c) or 8.5 hereof.
(b) Prior Consent. No assignment may be consummated pursuant to this
Section 10.10 without the prior written consent of Administrative Borrower and
Agent (other than an assignment by any Lender to any affiliate of such Lender
which affiliate is an Eligible Transferee and either wholly-owned by a Lender or
is wholly-owned by a Person that wholly owns, either directly or indirectly,
such Lender, or to another Lender), which consent of Administrative Borrower and
Agent shall not be unreasonably withheld (provided that a failure of
Administrative Borrower to approve a distressed debt fund or vulture fund as an
Eligible Transferee shall not be deemed to be unreasonable); provided, however,
that (i) Administrative Borrower's consent shall not be required if, at the time
of the proposed assignment, any Default or Event of Default shall then exist,
and (ii) Administrative Borrower shall be deemed to have granted its consent
unless Administrative Borrower has expressly objected to such assignment within
three Business Days after notice thereof. Anything herein to the contrary
notwithstanding, any Lender may at any time make a collateral assignment of all
or any portion of its rights under the Loan Documents to a Federal Reserve Bank,
and no such assignment shall release such assigning Lender from its obligations
hereunder.
71
(c) Minimum Amount. Each such assignment shall be in a minimum amount of
the lesser of Ten Million Dollars ($10,000,000) of the assignor's Commitment and
interest herein or the entire amount of the assignor's Commitment and interest
herein.
(d) Assignment Fee. Unless the assignment shall be to an affiliate of the
assignor or the assignment shall be due to merger of the assignor or for
regulatory purposes, either the assignor or the assignee shall remit to Agent,
for its own account, an administrative fee of Three Thousand Five Hundred
Dollars ($3,500).
(e) Assignment Agreement. Unless the assignment shall be due to merger of
the assignor or a collateral assignment for regulatory purposes, the assignor
shall (i) cause the assignee to execute and deliver to Administrative Borrower
and Agent an Assignment Agreement, and (ii) execute and deliver, or cause the
assignee to execute and deliver, as the case may be, to Agent such additional
amendments, assurances and other writings as Agent may reasonably require.
(f) Non-U.S. Assignee. If the assignment is to be made to an assignee that
is organized under the laws of any jurisdiction other than the United States or
any state thereof, the assignor Lender shall cause such assignee, at least five
Business Days prior to the effective date of such assignment, (i) to represent
to the assignor Lender (for the benefit of the assignor Lender, Agent and
Borrowers) that under applicable law and treaties no taxes will be required to
be withheld by Agent, Borrowers or the assignor with respect to any payments to
be made to such assignee in respect of the Loans hereunder, (ii) to furnish to
the assignor Lender (and, in the case of any assignee registered in the Register
(as defined below), Agent and Borrowers) either U.S. Internal Revenue Service
Form W-8ECI or U.S. Internal Revenue Service Form W-8BEN, as applicable (wherein
such assignee claims entitlement to complete exemption from U.S. federal
withholding tax on all payments hereunder), and (iii) to agree (for the benefit
of the assignor, Agent and Borrowers) to provide to the assignor Lender (and, in
the case of any assignee registered in the Register, to Agent and Borrowers) a
new Form W-8ECI or Form W-8BEN, as applicable, upon the expiration or
obsolescence of any previously delivered form and comparable statements in
accordance with applicable U.S. laws and regulations and amendments duly
executed and completed by such assignee, and to comply from time to time with
all applicable U.S. laws and regulations with regard to such withholding tax
exemption.
(g) Deliveries by Borrowers. Upon satisfaction of all applicable
requirements specified in subsections (a) through (f) above, (i) Administrative
Borrower shall execute and deliver to Agent, the assignor and the assignee, any
consent or release (of all or a portion of the obligations of the assignor)
required to be delivered by Administrative Borrower in connection with the
Assignment Agreement, and (ii) the appropriate Borrower shall execute and
deliver to the assignee, if requested, and the assignor, if applicable, an
appropriate Note or Notes. After delivery of the new Note or Notes, the
assignor's Note or Notes, if any, being replaced shall be returned to the
appropriate Borrower marked "replaced".
(h) Effect of Assignment. Upon satisfaction of all applicable requirements
set forth in subsections (a) through (g) above, and any other condition
contained in this Section 10.10, (i) the assignee shall become and thereafter be
deemed to be a "Lender" for the purposes of this
72
Agreement, (ii) the assignor shall be released from its obligations hereunder to
the extent that its interest has been assigned, (iii) in the event that the
assignor's entire interest has been assigned, the assignor shall cease to be and
thereafter shall no longer be deemed to be a "Lender" and (iv) the signature
pages hereto and Schedule 1 hereto shall be automatically amended, without
further action, to reflect the result of any such assignment.
(i) Agent to Maintain Register. Agent shall maintain at the address for
notices referred to in Section 10.4 hereof a copy of each Assignment Agreement
delivered to it and a register (the "Register") for the recordation of the names
and addresses of the Lenders and the Commitment of, and principal 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 Borrowers, Agent and the
Lenders may treat each Person whose name is recorded in the Register as the
owner of the Loan recorded therein for all purposes of this Agreement. The
Register shall be available for inspection by Administrative Borrower or any
Lender at any reasonable time and from time to time upon reasonable prior
notice.
Section 10.11. Sale of Participations. Any Lender may, in the ordinary
course of its commercial banking business and in accordance with applicable law,
at any time sell participations to one or more Eligible Transferees (each a
"Participant") in all or a portion of its rights or obligations under this
Agreement and the other Loan Documents (including, without limitation, all or a
portion of the Commitment and the Loans and participations owing to it and the
Note, if any, held by it); provided that:
(a) any such Lender's obligations under this Agreement and the other Loan
Documents shall remain unchanged;
(b) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations;
(c) the parties hereto shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and each of the other Loan Documents;
(d) such Participant shall be bound by the provisions of Section 8.5
hereof, and the Lender selling such participation shall obtain from such
Participant a written confirmation of its agreement to be so bound; and
(e) no Participant (unless such Participant is itself a Lender) shall be
entitled to require such Lender to take or refrain from taking action under this
Agreement or under any other Loan Document, except that such Lender may agree
with such Participant that such Lender will not, without such Participant's
consent, take action of the type described as follows:
(i) increase the portion of the participation amount of any
Participant over the amount thereof then in effect, or extend the
Commitment Period, without the written consent of each Participant affected
thereby; or
73
(ii) reduce the principal amount of or extend the time for any payment
of principal of any Loan, or reduce the rate of interest or extend the time
for payment of interest on any Loan, or reduce the facility fee, without
the written consent of each Participant affected thereby.
Borrowers agree that any Lender that sells participations pursuant to this
Section 10.11 shall still be entitled to the benefits of Article III hereof,
notwithstanding any such transfer; provided, however, that the obligations of
Borrowers shall not increase as a result of such transfer and Borrowers shall
have no obligation to any Participant.
Section 10.12. Patriot Act Notice. Each Lender and Agent (for itself and
not on behalf of any other party) hereby notifies the Credit Parties that,
pursuant to the requirements of the Patriot Act, such Lender and Agent are
required to obtain, verify and record information that identifies the Credit
Parties, which information includes the name and address of the Credit Parties
and other information that will allow such Lender or Agent, as applicable, to
identify the Credit Parties in accordance with the Patriot Act. Administrative
Borrower shall provide, to the extent commercially reasonable, such information
and take such actions as are reasonably requested by Agent or a Lender in order
to assist Agent or such Lender in maintaining compliance with the Patriot Act.
Section 10.13. Severability of Provisions; Captions; Attachments. Any
provision of this Agreement that shall be prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction. The several captions to Sections and subsections
herein are inserted for convenience only and shall be ignored in interpreting
the provisions of this Agreement. Each schedule or exhibit attached to this
Agreement shall be incorporated herein and shall be deemed to be a part hereof.
Section 10.14. Investment Purpose. Each of the Lenders represents and
warrants to Borrowers that it is entering into this Agreement with the present
intention of acquiring any Note issued pursuant hereto (or, if there is no Note,
the interest as reflected on the books and records of Agent) for investment
purposes only and not for the purpose of distribution or resale, it being
understood, however, that each Lender shall at all times retain full control
over the disposition of its assets.
Section 10.15. Entire Agreement. This Agreement, any Note and any other
Loan Document or other agreement, document or instrument attached hereto or
executed on or as of the Closing Date integrate all of the terms and conditions
mentioned herein or incidental hereto and supersede all oral representations and
negotiations and prior writings with respect to the subject matter hereof.
Section 10.16. Confidentiality. Agent and each Lender shall hold all
Confidential Information in accordance with the customary procedures of Agent or
such Lender for handling confidential information of this nature, and in
accordance with safe and sound banking practices. Notwithstanding the foregoing,
Agent or any Lender may in any event make disclosures of, and
74
furnish copies of Confidential Information (a) to another agent under this
Agreement or another Lender; (b) when reasonably required by any bona fide
transferee or participant in connection with the contemplated transfer of any
Loans or Commitment or participation therein (provided that each such
prospective transferee or participant shall agree to the confidentiality
provisions as set forth in this Section 10.16); (c) to the parent corporation or
other affiliates of Agent or such Lender, and to their respective auditors and
attorneys; and (d) as required or requested by any Governmental Authority or
representative thereof, or pursuant to legal process, provided, that, unless
specifically prohibited by applicable law or court order, Agent or such Lender,
as applicable, shall notify the chief financial officer of Administrative
Borrower of any request by any Governmental Authority or representative thereof
(other than any such request in connection with an examination of the financial
condition of Agent or such Lender by such Governmental Authority), and of any
other request pursuant to legal process, for disclosure of any such non-public
information prior to disclosure of such Confidential Information. In no event
shall Agent or any Lender be obligated or required to return any materials
furnished by or on behalf of any Company. Borrowers hereby agree that the
failure of Agent or any Lender to comply with the provisions of this Section
10.16 shall not relieve Borrowers of any of the obligations to Agent and the
Lenders under this Agreement and the other Loan Documents.
Section 10.17. Legal Representation of Parties. The Loan Documents were
negotiated by the parties with the benefit of legal representation and any rule
of construction or interpretation otherwise requiring this Agreement or any
other Loan Document to be construed or interpreted against any party shall not
apply to any construction or interpretation hereof or thereof.
Section 10.18. Currency.
(a) Currency Equivalent Generally. For the purposes of making valuations or
computations under this Agreement (but not for the purposes of the preparation
of any financial statements delivered pursuant hereto), unless expressly
provided otherwise, where a reference is made to a dollar amount the amount is
to be considered as the amount in Dollars and, therefor, each other currency
shall be converted into the Dollar Equivalent.
(b) Judgment Currency. If Agent, on behalf of the Lenders, obtains a
judgment or judgments against any Credit Party in an Alternate Currency, the
obligations of such Credit Party in respect of any sum adjudged to be due to
Agent or the Lenders hereunder or under the Notes (the "Judgment Amount") shall
be discharged only to the extent that, on the Business Day following receipt by
Agent of the Judgment Amount in an Alternate Currency, Agent, in accordance with
normal banking procedures, purchases Dollars with the Judgment Amount in an
Alternate Currency. If the amount of Dollars so purchased is less than the
amount of Dollars that could have been purchased with the Judgment Amount on the
date or dates the Judgment Amount (excluding the portion of the Judgment Amount
that has accrued as a result of the failure of such Credit Party to pay the sum
originally due hereunder or under the Notes when it was originally due and owing
to Agent or the Lenders hereunder or under the Notes) was originally due and
owing to Agent or the Lenders hereunder or under the Notes (the "Original Due
Date") (the "Loss"), such Credit Party agrees as a separate obligation and
notwithstanding any such judgment, to indemnify Agent or such Lender, as the
case may be, against the Loss, and if the
75
amount of Dollars so purchased exceeds the amount of Dollars that could have
been purchased with the Judgment Amount on the Original Due Date, Agent or such
Lender agrees to remit such excess to such Credit Party.
Section 10.19. Governing Law; Submission to Jurisdiction.
(a) Governing Law. This Agreement, each of the Notes and any Related
Writing shall be governed by and construed in accordance with the laws of the
State of Ohio and the respective rights and obligations of Borrowers, Agent and
the Lenders shall be governed by Ohio law, without regard to principles of
conflicts of laws.
(b) Submission to Jurisdiction. Each Borrower hereby irrevocably submits to
the non-exclusive jurisdiction of any Ohio state or federal court sitting in
Cleveland, Ohio, over any action or proceeding arising out of or relating to
this Agreement, the Obligations or any Related Writing, and each Borrower hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such Ohio state or federal court. Each Borrower, on
behalf of itself and its Subsidiaries, hereby irrevocably waives, to the fullest
extent permitted by law, any objection it may now or hereafter have to the
laying of venue in any action or proceeding in any such court as well as any
right it may now or hereafter have to remove such action or proceeding, once
commenced, to another court on the grounds of FORUM NON CONVENIENS or otherwise.
Each Borrower agrees that a final, nonappealable judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law.
[Remainder of page left intentionally blank]
76
Section 10.20. Jury Trial Waiver. TO THE EXTENT PERMITTED BY LAW, EACH
BORROWER, AGENT AND EACH LENDER WAIVE ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG
BORROWERS, AGENT AND THE LENDERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY NOTE OR OTHER INSTRUMENT, DOCUMENT OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED THERETO.
IN WITNESS WHEREOF, the parties have executed and delivered this Credit
Agreement in Cleveland, Ohio as of the date first set forth above.
Address: 6065 Parkland Boulevard AGILYSYS, INC.
Cleveland, Ohio 44124
Attn: Chief Financial Officer
By: /s/ Martin F. Ellis
-----------------------------------
Martin F. Ellis
Executive Vice President,
Treasurer and Chief Financial
Officer
Address: 1300 East Ninth Street, LASALLE BANK NATIONAL ASSOCIATION,
Suite 1000 as Agent and as a Lender
Cleveland, Ohio 44114
Attn: Corporate Banking
By: /s/ Brian H. Gallagher
-----------------------------------
Brian H. Gallagher
Vice President
Signature Page
1 of 10 of the Credit Agreement
Address: 1900 East Ninth Street NATIONAL CITY BANK
Loc 01-2083
Cleveland, Ohio 44114
Attn: Marguerite Burtzlaff By: /s/ Marguerite Burtzlaff
-----------------------------------
Marguerite Burtzlaff
Senior Vice President
Signature Page
2 of 10 of the Credit Agreement
Address: 111 West Monroe Street HARRIS N.A.
Chicago, Illinois 60603
Attn: Michael Leong
By: /s/ Thad D. Rasche
-----------------------------------
Thad D. Rasche
Vice President
Signature Page
3 of 10 of the Credit Agreement
Address: 71 S. Wacker CHARTER ONE BANK, N.A.
Suite 2900
Chicago, Illinois 60606
Attn: Mary Ann Clemm By: /s/ Michael Dolson
-----------------------------------
Michael Dolson
Vice President
Signature Page
4 of 10 of the Credit Agreement
Address: U.S. Bank Tower U.S. BANK NATIONAL ASSOCIATION
425 Walnut Street, 8th Floor
ML CN-OH-W8
Cincinnati, Ohio 45202 By: /s/ Michael P. Dickman
Attn: Michael P. Dickman -----------------------------------
Michael P. Dickman
Vice President
Signature Page
5 of 10 of the Credit Agreement
Address: 277 Park Avenue JPMORGAN CHASE BANK, N.A.
16th Floor
New York, New York 10172
Attn: Anthony Galea By: /s/ Anthony Galea
-----------------------------------
Anthony Galea
Associate
Signature Page
6 of 10 of the Credit Agreement
Address: 1375 E. 9th Street PNC BANK, NATIONAL ASSOCIATION
#2430
Cleveland, Ohio 44114
Attn: Joseph G. Moran By: /s/ Joseph G. Moran
-----------------------------------
Joseph G. Moran
Managing Director
Signature Page
7 of 10 of the Credit Agreement
Address: 600 Superior Ave. East FIFTH THIRD BANK
Cleveland, Ohio 44114
Attn: Roy C. Lanctot
By: /s/ Roy C. Lanctot
-----------------------------------
Roy C. Lanctot
Vice President
Signature Page
8 of 10 of the Credit Agreement
Address: 106 South Main Street FIRSTMERIT BANK, N.A.
Akron, Ohio 44308
Attn: Ken Johnson
TOW 24-Commercial Banking By: /s/ Kenneth L. Johnson
-----------------------------------
Kenneth L. Johnson
Vice President
Signature Page
9 of 10 of the Credit Agreement
Address: One HSBC Center HSBC BANK USA, NATIONAL ASSOCIATION
Lobby Office
Buffalo, New York 14203
Attn: Michael Green By: /s/ Michael J. Green
-----------------------------------
Michael J. Green
Vice President, Commercial Banking
Signature Page
10 of 10 of the Credit Agreement
SCHEDULE 1
REVOLVING
CREDIT
COMMITMENT COMMITMENT
LENDERS PERCENTAGE AMOUNT MAXIMUM AMOUNT
------- ------------- ------------ --------------
LaSalle Bank National Association 15.000000000% $ 30,000,000 $ 30,000,000
National City Bank 12.500000000% $ 25,000,000 $ 25,000,000
Harris N.A. 12.500000000% $ 25,000,000 $ 25,000,000
Charter One Bank, N.A. 12.500000000% $ 25,000,000 $ 25,000,000
U.S. Bank National Association 10.000000000% $ 20,000,000 $ 20,000,000
JPMorgan Chase Bank, N.A. 10.000000000% $ 20,000,000 $ 20,000,000
PNC Bank, National Association 7.500000000% $ 15,000,000 $ 15,000,000
Fifth Third Bank 7.500000000% $ 15,000,000 $ 15,000,000
FirstMerit Bank, N.A. 6.250000000% $ 12,500,000 $ 12,500,000
HSBC Bank USA, National Association 6.250000000% $ 12,500,000 $ 12,500,000
------------- ------------ ------------
Total Commitment Amount 100.000000000% $200,000,000 $200,000,000
============= ============ ============
S-1
SCHEDULE 2
BORROWERS
US Borrowers
Agilysys, Inc., an Ohio corporation
Foreign Borrowers
None as of the Closing Date.
S-2
SCHEDULE 3
GUARANTORS OF PAYMENT
Domestic Guarantors of Payment
Agilysys S.C., Inc., a South Carolina corporation
Agilysys NV, LLC, a Delaware limited liability company
The CTS Corporations, an Arizona corporation
Foreign Guarantors of Payment
None as of the Closing Date.
S-3
SCHEDULE 4
ADDITIONAL FOREIGN BORROWER MAXIMUM AMOUNT
None as of the Closing Date.
S-4
SCHEDULE 5
PLEDGED SECURITIES
None as of the Closing Date.
S-5
EXHIBIT A
FORM OF
US BORROWER REVOLVING CREDIT NOTE
$___________ Cleveland, Ohio
__________, 200__
FOR VALUE RECEIVED, the undersigned, AGILYSYS, INC., an Ohio corporation,
and [____________________] (collectively, "US Borrowers" and, individually, each
a "US Borrower"), promises to pay, [jointly and severally,] on the last day of
the Commitment Period, as defined in the Credit Agreement (as hereinafter
defined), to the order of _______________ ("Lender") at the main office of
LASALLE BANK NATIONAL ASSOCIATION, as Agent, as hereinafter defined, 1300 East
Ninth Street, Suite 1000, Cleveland, Ohio 44114 the principal sum of
________________________________________________________________________ DOLLARS
or the aggregate unpaid principal amount of all Revolving Loans, as defined in
the Credit Agreement made by Lender to US Borrowers pursuant to Section 2.2(a)
of the Credit Agreement, whichever is less, in lawful money of the United States
of America; provided that Revolving Loans that are Alternate Currency Loans, as
defined in the Credit Agreement, shall be payable in the applicable Alternate
Currency, as defined in the Credit Agreement, at the place or places designated
in the Credit Agreement. US Borrowers also agree to pay any additional amount
that is required to be paid pursuant to Section 10.18 of the Credit Agreement.
As used herein, "Credit Agreement" means the Credit Agreement dated as of
October 18, 2005, among US Borrowers, the Foreign Borrowers, as defined therein,
the Lenders, as defined therein, LaSalle Bank National Association, as lead
arranger, book runner and administrative agent for the Lenders ("Agent"),
National City Bank, as syndication agent, Harris N.A. and Charter One Bank,
N.A., as co-documentation agents, and U.S. Bank National Association, as
managing agent, as the same may from time to time be amended, restated or
otherwise modified. Each capitalized term used herein that is defined in the
Credit Agreement and not otherwise defined herein shall have the meaning
ascribed to it in the Credit Agreement.
US Borrowers also promise to pay interest on the unpaid principal amount of
each Revolving Loan from time to time outstanding, from the date of such
Revolving Loan until the payment in full thereof, at the rates per annum that
shall be determined in accordance with the provisions of Section 2.3(a) of the
Credit Agreement. Such interest shall be payable on each date provided for in
such Section 2.3(a); provided, however, that interest on any principal portion
that is not paid when due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Base Rate Loans and LIBOR Fixed Rate Loans, and payments of principal of any
thereof, shall be shown on the records of Lender by such method as Lender may
generally employ; provided, however, that failure to make any such entry shall
in no way detract from the obligations of US Borrowers under this Note.
E-1
If this Note shall not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any provision for acceleration of
maturity contained in the Credit Agreement, the principal hereof and the unpaid
interest thereon shall bear interest, until paid, at a rate per annum equal to
the Default Rate. All payments of principal of and interest on this Note shall
be made in immediately available funds.
This Note is one of the US Borrower Revolving Credit Notes referred to in
the Credit Agreement. Reference is made to the Credit Agreement for a
description of the right of the undersigned to anticipate payments hereof, the
right of the holder hereof to declare this Note due prior to its stated
maturity, and other terms and conditions upon which this Note is issued.
Except as expressly provided in the Credit Agreement, US Borrowers
expressly waive presentment, demand, protest and notice of any kind. This Note
shall be governed by and construed in accordance with the laws of the State of
Ohio, without regard to conflicts of laws provisions.
JURY TRIAL WAIVER. EACH US BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWERS, AGENT AND THE LENDERS,
OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
AGILYSYS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[_____________________]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-2
EXHIBIT B
FORM OF
FOREIGN BORROWER REVOLVING CREDIT NOTE
$___________ __________, 200__
FOR VALUE RECEIVED, the undersigned, [____________________] ("Foreign
Borrower"), promises to pay, on the last day of the Commitment Period, as
defined in the Credit Agreement (as hereinafter defined), to the order of
_______________ ("Lender") at the main office of LASALLE BANK NATIONAL
ASSOCIATION, as Agent, as hereinafter defined, 1300 East Ninth Street, Suite
1000, Cleveland, Ohio 44114 the principal sum of
________________________________________________________________________ DOLLARS
or the aggregate unpaid principal amount of all Revolving Loans, as defined in
the Credit Agreement made by Lender to Foreign Borrower pursuant to Section
2.2(a) of the Credit Agreement, whichever is less, in lawful money of the United
States of America; provided that Revolving Loans that are Alternate Currency
Loans, as defined in the Credit Agreement, shall be payable in the applicable
Alternate Currency, as defined in the Credit Agreement, at the place or places
designated in the Credit Agreement. Foreign Borrower also agrees to pay any
additional amount that is required to be paid pursuant to Section 10.18 of the
Credit Agreement.
As used herein, "Credit Agreement" means the Credit Agreement dated as of
October 18, 2005, among US Borrowers, the Foreign Borrowers, as defined therein,
the Lenders, as defined therein, LaSalle Bank National Association, as lead
arranger, book runner and administrative agent for the Lenders ("Agent"),
National City Bank, as syndication agent, Harris N.A. and Charter One Bank,
N.A., as co-documentation agents, and U.S. Bank National Association, as
managing agent, as the same may from time to time be amended, restated or
otherwise modified. Each capitalized term used herein that is defined in the
Credit Agreement and not otherwise defined herein shall have the meaning
ascribed to it in the Credit Agreement.
Foreign Borrower also promises to pay interest on the unpaid principal
amount of each Revolving Loan from time to time outstanding, from the date of
such Revolving Loan until the payment in full thereof, at the rates per annum
that shall be determined in accordance with the provisions of Section 2.3(a) of
the Credit Agreement. Such interest shall be payable on each date provided for
in such Section 2.3(a); provided, however, that interest on any principal
portion that is not paid when due shall be payable on demand.
The portions of the principal sum hereof from time to time representing
Base Rate Loans and LIBOR Fixed Rate Loans, and payments of principal of any
thereof, shall be shown on the records of Lender by such method as Lender may
generally employ; provided, however, that failure to make any such entry shall
in no way detract from the obligations of Foreign Borrower under this Note.
If this Note shall not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any provision for acceleration of
maturity contained in the Credit Agreement, the principal hereof and the unpaid
interest thereon shall bear interest, until paid, at a
E-3
rate per annum equal to the Default Rate. All payments of principal of and
interest on this Note shall be made in immediately available funds.
This Note is one of the Foreign Borrower Revolving Credit Notes referred to
in the Credit Agreement. Reference is made to the Credit Agreement for a
description of the right of the undersigned to anticipate payments hereof, the
right of the holder hereof to declare this Note due prior to its stated
maturity, and other terms and conditions upon which this Note is issued.
Except as expressly provided in the Credit Agreement, Foreign Borrower
expressly waives presentment, demand, protest and notice of any kind. This Note
shall be governed by and construed in accordance with the laws of the State of
Ohio, without regard to conflicts of laws provisions.
JURY TRIAL WAIVER. FOREIGN BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWERS, AGENT AND THE LENDERS,
OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
[_____________________]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT C
FORM OF
SWING LINE NOTE
$20,000,000 Cleveland, Ohio
October 18, 2005
FOR VALUE RECEIVED, the undersigned, AGILYSYS, INC., an Ohio corporation
and [____________________] (collectively, "US Borrowers" and, individually, each
a "US Borrower"), promises to pay, [jointly and severally,] to the order of
LASALLE BANK NATIONAL ASSOCIATION ("Swing Line Lender") at the main office of
LASALLE BANK NATIONAL ASSOCIATION, as Agent, as hereinafter defined, 1300 East
Ninth Street, Suite 1000, Cleveland, Ohio 44114 the principal sum of
TWENTY MILLION AND 00/100 ______________________________________________ DOLLARS
or the aggregate unpaid principal amount of all Swing Loans, as defined in the
Credit Agreement (as hereinafter defined) made by Swing Line Lender to US
Borrowers pursuant to Section 2.2(c) of the Credit Agreement, whichever is less,
in lawful money of the United States of America on the earlier of the last day
of the Commitment Period, as defined in the Credit Agreement, or, with respect
to each Swing Loan, the Swing Loan Maturity Date applicable thereto;
As used herein, "Credit Agreement" means the Credit Agreement dated as of
October 18, 2005, among US Borrowers, Foreign Borrowers, as defined therein, the
Lenders, as defined therein, LaSalle Bank National Association, as lead
arranger, book runner and administrative agent for the Lenders ("Agent"),
National City Bank, as syndication agent, Harris N.A. and Charter One Bank,
N.A., as co-documentation agents, and U.S. Bank National Association, as
managing agent, as the same may from time to time be amended, restated or
otherwise modified. Each capitalized term used herein that is defined in the
Credit Agreement and not otherwise defined herein shall have the meaning
ascribed to it in the Credit Agreement.
US Borrowers also promise to pay interest on the unpaid principal amount of
each Swing Loan from time to time outstanding, from the date of such Swing Loan
until the payment in full thereof, at the rates per annum that shall be
determined in accordance with the provisions of Section 2.3(b) of the Credit
Agreement. Such interest shall be payable on each date provided for in such
Section 2.3(b); provided, however, that interest on any principal portion that
is not paid when due shall be payable on demand.
The principal sum hereof from time to time and the payments of principal
and interest thereon, shall be shown on the records of Swing Line Lender by such
method as Swing Line Lender may generally employ; provided, however, that
failure to make any such entry shall in no way detract from the obligations of
US Borrowers under this Note.
If this Note shall not be paid at maturity, whether such maturity occurs by
reason of lapse of time or by operation of any provision for acceleration of
maturity contained in the Credit Agreement, the principal hereof and the unpaid
interest thereon shall bear interest, until paid, at a rate per annum equal to
the Default Rate. All payments of principal of and interest on this Note shall
be made in immediately available funds.
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This Note is the Swing Line Note referred to in the Credit Agreement.
Reference is made to the Credit Agreement for a description of the right of the
undersigned to anticipate payments hereof, the right of the holder hereof to
declare this Note due prior to its stated maturity, and other terms and
conditions upon which this Note is issued.
Except as expressly provided in the Credit Agreement, US Borrowers
expressly waive presentment, demand, protest and notice of any kind. This Note
shall be governed by and construed in accordance with the laws of the State of
Ohio, without regard to conflicts of laws provisions.
JURY TRIAL WAIVER. EACH US BORROWER, TO THE EXTENT PERMITTED BY LAW, HEREBY
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG BORROWERS, AGENT AND THE LENDERS,
OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR INCIDENTAL TO
THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS NOTE OR ANY
OTHER NOTE OR OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN
CONNECTION HEREWITH OR THE TRANSACTIONS RELATED THERETO.
AGILYSYS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[_____________________]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT D
FORM OF
NOTICE OF LOAN
[Date]_______________________, 200__
LaSalle Bank National Association, as Agent
1300 East Ninth Street, Suite 1000
Cleveland, Ohio 44114
Attention: Corporate Banking
Ladies and Gentlemen:
The undersigned, AGILYSYS, INC. ("Administrative Borrower"), refers to that
certain Credit Agreement, dated as of October 18, 2005 (the "Credit Agreement",
the terms defined therein being used herein as therein defined), among
Borrowers, the Lenders, LaSalle Bank National Association, as Agent, National
City Bank, as syndication agent, Harris N.A. and Charter One Bank, N.A., as
co-documentation agents, and U.S. Bank National Association, as managing agent,
and hereby gives you notice, pursuant to Section 2.5 of the Credit Agreement
that Borrowers hereby request a Loan under the Credit Agreement, and in
connection therewith sets forth below the information relating to the Loan (the
"Proposed Loan") as required by Section 2.5 of the Credit Agreement:
Administrative Borrower is requesting the Proposed Loan on behalf of
________________.
(a) The Business Day of the Proposed Loan is __________, 20__.
(b) The amount of the Proposed Loan is $ _______________.
(c) The Proposed Loan is to be a:
Base Rate Loan ___, Alternate Currency Loan ___, Eurodollar Loan ___,
Swing Loan___. (Check one.)
(d) If the Proposed Loan is an Alternate Currency Loan or a Eurodollar
Loan, the Interest Period requested is: one month ___, two months ___,
three months ___, six months ___. (Check one.)
(e) If the Proposed Loan is an Alternate Currency Loan, the Alternate
Currency requested is __________________________.
The undersigned hereby certifies on behalf of Borrowers that the following
statements are true on the date hereof, and will be true on the date of the
Proposed Loan:
(i) the representations and warranties contained in each Loan Document
are correct, before and after giving effect to the Proposed Loan and the
application of the proceeds therefrom, as though made on and as of such
date;
(ii) no event has occurred and is continuing, or would result from
such Proposed Loan, or the application of proceeds therefrom, that
constitutes a Default or Event of Default; and
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(iii) the conditions set forth in Section 2.5 and Article IV of the
Credit Agreement have been satisfied.
Very truly yours,
AGILYSYS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
E-8
EXHIBIT E
FORM OF
COMPLIANCE CERTIFICATE
For Fiscal Quarter ended ____________________
THE UNDERSIGNED HEREBY CERTIFIES THAT:
(1) I am the duly elected President or Chief Financial Officer of AGILYSYS,
INC., an Ohio corporation;
(2) I am familiar with the terms of that certain Credit Agreement, dated as
of October 18, 2005, among Borrowers, as defined therein, the lenders named on
Schedule 1 thereto (together with their respective successors and assigns,
collectively, the "Lenders"), as defined in the Credit Agreement, LaSalle Bank
National Association, as Agent, National City Bank, as syndication agent, Harris
N.A. and Charter One Bank, N.A., as co-documentation agents, and U.S. Bank
National Association, as managing agent (as the same may from time to time be
amended, restated or otherwise modified, the "Credit Agreement", the terms
defined therein being used herein as therein defined), and the terms of the
other Loan Documents, and I have made, or have caused to be made under my
supervision, a review in reasonable detail of the transactions and condition of
Borrowers and their Subsidiaries during the accounting period covered by the
attached financial statements;
(3) The review described in paragraph (2) above did not disclose, and I
have no knowledge of, the existence of any condition or event that constitutes
or constituted a Default or Event of Default, at the end of the accounting
period covered by the attached financial statements or as of the date of this
Certificate;
(4) The representations and warranties made by the Credit Parties contained
in each Loan Document are true and correct as though made on and as of the date
hereof; and
(5) Set forth on Attachment I hereto are calculations of the financial
covenants set forth in Sections 5.7 and 5.20(b) of the Credit Agreement, which
calculations show compliance with the terms thereof.
IN WITNESS WHEREOF, I have signed this certificate the ___ day of
_________, 20___.
AGILYSYS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT F
FORM OF
ASSIGNMENT AND ACCEPTANCE AGREEMENT
This Assignment and Acceptance Agreement (this "Assignment Agreement")
between ______________________ (the "Assignor") and ______________________ (the
"Assignee") is dated as of ________, 20_. The parties hereto agree as follows:
1. Preliminary Statement. Assignor is a party to a Credit Agreement, dated
as of October 18, 2005 (as the same may from time to time be amended, restated
or otherwise modified, the "Credit Agreement"), among AGILYSYS, INC., an Ohio
corporation ("Agilysys"), each other US Borrower, as defined therein, each
Foreign Borrower, as defined therein (each such Foreign Borrower, together with
Agilysys and each other US Borrower, collectively, "Borrowers" and,
individually, each a "Borrower"), the lenders named on Schedule 1 thereto
(together with their respective successors and assigns, collectively, the
"Lenders" and, individually, each a "Lender"), LASALLE BANK NATIONAL
ASSOCIATION, as lead arranger, book runner and administrative agent for the
Lenders ("Agent"), NATIONAL CITY BANK, as syndication agent, HARRIS N.A. and
CHARTER ONE BANK, N.A., as co-documentation agents, and U.S. BANK NATIONAL
ASSOCIATION, as managing agent. Capitalized terms used herein and not otherwise
defined herein shall have the meanings attributed to them in the Credit
Agreement.
2. Assignment and Assumption. Assignor hereby sells and assigns to
Assignee, and Assignee hereby purchases and assumes from Assignor, an interest
in and to Assignor's rights and obligations under the Credit Agreement,
effective as of the Assignment Effective Date (as hereinafter defined), equal to
the percentage interest specified on Annex 1 hereto (hereinafter, the "Assigned
Percentage") of Assignor's right, title and interest in and to (a) the
Commitment, (b) any Loan made by Assignor that is outstanding on the Assignment
Effective Date, (c) Assignor's interest in any Letter of Credit outstanding on
the Assignment Effective Date, (d) any Note delivered to Assignor pursuant to
the Credit Agreement, and (e) the Credit Agreement and the other Related
Writings. After giving effect to such sale and assignment and on and after the
Assignment Effective Date, Assignee shall be deemed to have a "Commitment
Percentage" under the Credit Agreement equal to the Commitment Percentage set
forth in subpart II.A on Annex 1 hereto and an Assigned Amount as set forth on
subpart I.B of Annex 1 hereto (hereinafter, the "Assigned Amount").
3. Assignment Effective Date. The Assignment Effective Date (the
"Assignment Effective Date") shall be __________ __, ____ (or such other date
agreed to by Agent). On or prior to the Assignment Effective Date, Assignor
shall satisfy the following conditions:
(a) receipt by Agent of this Assignment Agreement, including Annex 1
hereto, properly executed by Assignor and Assignee and accepted and consented to
by Agent and, if necessary pursuant to the provisions of Section 10.10(b) of the
Credit Agreement, by Administrative Borrower;
E-10
(b) receipt by Agent from Assignor of a fee of Three Thousand Five Hundred
Dollars ($3,500), if required by Section 10.10(d) of the Credit Agreement;
(c) receipt by Agent from Assignee of an administrative questionnaire, or
other similar document, which shall include (i) the address for notices under
the Credit Agreement, (ii) the address of its Lending Office, (iii) wire
transfer instructions for delivery of funds by Agent, (iv) and such other
information as Agent shall request; and
(d) receipt by Agent from Assignor or Assignee of any other information
required pursuant to Section 10.10 of the Credit Agreement or otherwise
necessary to complete the transaction contemplated hereby.
4. Payment Obligations. In consideration for the sale and assignment of
Loans hereunder, Assignee shall pay to Assignor, on the Assignment Effective
Date, the amount agreed to by Assignee and Assignor. Any interest, fees and
other payments accrued prior to the Assignment Effective Date with respect to
the Assigned Amount shall be for the account of Assignor. Any interest, fees and
other payments accrued on and after the Assignment Effective Date with respect
to the Assigned Amount shall be for the account of Assignee. Each of Assignor
and Assignee agrees that it will hold in trust for the other party any interest,
fees or other amounts which it may receive to which the other party is entitled
pursuant to the preceding sentence and to pay the other party any such amounts
which it may receive promptly upon receipt thereof.
5. Credit Determination; Limitations on Assignor's Liability. Assignee
represents and warrants to Assignor, Borrowers, Agent and the Lenders (a) that
it is capable of making and has made and shall continue to make its own credit
determinations and analysis based upon such information as Assignee deemed
sufficient to enter into the transaction contemplated hereby and not based on
any statements or representations by Assignor, (b) Assignee confirms that it
meets the requirements to be an assignee as set forth in Section 10.10 of the
Credit Agreement; (c) Assignee confirms that it is able to fund the Loans and
the Letters of Credit as required by the Credit Agreement; (d) Assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of the Credit Agreement and the Related Writings are required to be
performed by it as a Lender thereunder; and (e) Assignee represents that it has
reviewed each of the Loan Documents. It is understood and agreed that the
assignment and assumption hereunder are made without recourse to Assignor and
that Assignor makes no representation or warranty of any kind to Assignee and
shall not be responsible for (i) the due execution, legality, validity,
enforceability, genuineness, sufficiency or collectability of the Credit
Agreement or any Related Writings, (ii) any representation, warranty or
statement made in or in connection with the Credit Agreement or any of the
Related Writings, (iii) the financial condition or creditworthiness of any
Borrower or Guarantor of Payment, (iv) the performance of or compliance with any
of the terms or provisions of the Credit Agreement or any of the Related
Writings, (v) the inspection of any of the property, books or records of
Borrowers, or (vi) the validity, enforceability, perfection, priority,
condition, value or sufficiency of any collateral securing or purporting to
secure the Loans or Letters of Credit. Neither Assignor nor any of its officers,
directors, employees, agents or attorneys shall be liable for any mistake, error
of judgment, or action taken or omitted to be taken in connection with the
Loans, the Letters of
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Credit, the Credit Agreement or the Related Writings, except for its or their
own bad faith or willful misconduct. Assignee appoints Agent to take such action
as agent on its behalf and to exercise such powers under the Credit Agreement as
are delegated to Agent by the terms thereof.
6. Indemnity. Assignee agrees to indemnify and hold Assignor harmless
against any and all losses, cost and expenses (including, without limitation,
attorneys' fees) and liabilities incurred by Assignor in connection with or
arising in any manner from Assignee's performance or non-performance of
obligations assumed under this Assignment Agreement.
7. Subsequent Assignments. After the Assignment Effective Date, Assignee
shall have the right pursuant to Section 10.10 of the Credit Agreement to assign
the rights which are assigned to Assignee hereunder, provided that (a) any such
subsequent assignment does not violate any of the terms and conditions of the
Credit Agreement, any of the Related Writings, or any law, rule, regulation,
order, writ, judgment, injunction or decree and that any consent required under
the terms of the Credit Agreement or any of the Related Writings has been
obtained, (b) the assignee under such assignment from Assignee shall agree to
assume all of Assignee's obligations hereunder in a manner satisfactory to
Assignor and (c) Assignee is not thereby released from any of its obligations to
Assignor hereunder.
8. Reductions of Aggregate Amount of Commitments. If any reduction in the
Total Commitment Amount occurs between the date of this Assignment Agreement and
the Assignment Effective Date, the percentage of the Total Commitment Amount
assigned to Assignee shall remain the percentage specified in Section 1 hereof
and the dollar amount of the Commitment of Assignee shall be recalculated based
on the reduced Total Commitment Amount.
9. Acceptance of Agent; Notice by Assignor. This Assignment Agreement is
conditioned upon the acceptance and consent of Agent and, if necessary pursuant
to Section 10.10 of the Credit Agreement, upon the acceptance and consent of
Administrative Borrower; provided, that the execution of this Assignment
Agreement by Agent and, if necessary, by Administrative Borrower is evidence of
such acceptance and consent.
10. Entire Agreement. This Assignment Agreement embodies the entire
agreement and understanding between the parties hereto and supersedes all prior
agreements and understandings between the parties hereto relating to the subject
matter hereof.
11. Governing Law. This Assignment Agreement shall be governed by the laws
of the State of Ohio, without regard to conflicts of laws.
12. Notices. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the addresses
of the parties hereto (until notice of a change is delivered) shall be the
address set forth under each party's name on the signature pages hereof.
[Remainder of page intentionally left blank.]
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13. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT PERMITTED BY
LAW, WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT, ANY OF THE
LENDERS, AND BORROWERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS INSTRUMENT OR ANY NOTE OR OTHER AGREEMENT, INSTRUMENT OR
DOCUMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH OR THE TRANSACTIONS
RELATED HERETO.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
Agreement by their duly authorized officers as of the date first above written.
ASSIGNOR:
Address:
---------------------------- ----------------------------------------
----------------------------
Attn: By:
------------------------------- ------------------------------------
Phone: Name:
------------------------------ ----------------------------------
Fax: Title:
-------------------------------- ---------------------------------
ASSIGNEE:
Address:
---------------------------- ----------------------------------------
----------------------------
Attn: By:
------------------------------- ------------------------------------
Phone: Name:
------------------------------ ----------------------------------
Fax: Title:
-------------------------------- ---------------------------------
Accepted and Consented to this __ day Accepted and Consented to this ___ day
of _______, 20__: of _______, 20__:
LASALLE BANK NATIONAL ASSOCIATION, AGILYSYS, INC.
as Agent
By: By:
--------------------------------- ------------------------------------
Name: Name:
------------------------------- ----------------------------------
Title: Title:
------------------------------ ---------------------------------
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ANNEX 1
TO
ASSIGNMENT AND ACCEPTANCE AGREEMENT
On and after the Assignment Effective Date, after giving effect to all
other assignments being made by Assignor on the Assignment Effective Date, the
Commitment of Assignee, and, if this is less than an assignment of all of
Assignor's interest, Assignor, shall be as follows:
I. INTEREST OF ASSIGNOR BEING ASSIGNED TO ASSIGNEE
A. Assigned Percentage __________%
B. Assigned Amount $__________
II. ASSIGNEE'S COMMITMENT (as of the Assignment Effective Date)
A. Assignee's Commitment Percentage
under the Credit Agreement __________%
B. Assignee's Commitment Amount under
the Credit Agreement $__________
III. ASSIGNOR'S COMMITMENT (as of the Assignment Effective Date)
A. Assignor's Commitment Percentage
under the Credit Agreement __________%
B. Assignor's Commitment Amount
under the Credit Agreement $__________
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EXHIBIT G
FORM OF
ADDITIONAL BORROWER ASSUMPTION AGREEMENT
This ADDITIONAL BORROWER ASSUMPTION AGREEMENT ("Agreement") is made
effective as of ____________, 20__, by and among ________________, a _________
(the "Obligor"), AGILYSYS, INC., an Ohio corporation ("Agilysys"), each other US
Borrower and each Foreign Borrower, as each term is defined in the Credit
Agreement referred to below (each such Foreign Borrower, together with Agilysys
and each other US Borrower shall be referred to herein, collectively, as
"Borrowers" and, individually, each a "Borrower"), LASALLE BANK NATIONAL
ASSOCIATION, as the administrative agent for the Lenders ("Agent"), on behalf of
and for the benefit of each of the banks named therein (collectively, the
"Lenders" and, individually, each a "Lender"), NATIONAL CITY BANK, as
syndication agent, HARRIS N.A. and CHARTER ONE BANK, N.A., as co-documentation
agents, and U.S. BANK NATIONAL ASSOCIATION, as managing agent:
WHEREAS, Borrowers, Agent, and the Lenders are parties to the Credit
Agreement, dated as of October 18, 2005 (as the same may from time to time be
amended, restated or otherwise modified, the "Credit Agreement", each
capitalized term not defined herein being used herein as therein defined)
wherein Agent and the Lenders have agreed to make Loans to Borrowers, and the
Fronting Lender has agreed to issue Letters of Credit on behalf of the Lenders,
all upon certain terms and conditions;
WHEREAS, pursuant to Section 2.13 of the Credit Agreement, Agilysys has
requested that, effective on _____________, 20___ (the "Borrower Assumption
Effective Date"), the Obligor shall be designated as a "[US][Foreign] Borrower"
under the Credit Agreement; and
WHEREAS, Agent and the Lenders are willing to permit the Obligor to become
a "[US][Foreign] Borrower" under the Credit Agreement and the Lenders are
willing to make Loans to the Obligor pursuant to the Commitment, upon certain
terms and conditions as set forth in the Credit Agreement, one of which is that
the Obligor shall assume all of the [Obligations][Foreign Borrower Obligations,
as hereinafter defined], and this Agreement is being executed and delivered in
consideration of each financial accommodation, if any, granted to the Obligor by
Agent and the Lenders and for other valuable considerations;
NOW, THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Obligor hereby agrees as follows:
1. Assumption. On and after the Borrower Assumption Effective Date, the
Obligor irrevocably and unconditionally assumes and shall be liable for all of
the [Obligations][obligations of a Foreign Borrower under the Credit Agreement,
the Notes (if any) and the Related Writings (the "Foreign Borrower
Obligations")] as fully as if such Obligor had been an original party to the
Credit Agreement, including, but not limited to (a) all Loans and Letters of
Credit made to or for the benefit of the Obligor; (b) all other indebtedness now
owing or hereafter incurred by the Obligor to Agent and the Lenders pursuant to
the Credit Agreement
E-15
and any Notes executed in connection therewith; and (c) each renewal, extension,
consolidation or refinancing of any of the foregoing, in whole or in part.
2. Obligor Party to the Credit Agreement. On and after the Borrower
Assumption Effective Date, the Obligor shall (a) be designated a "[US][Foreign]
Borrower" pursuant to the terms and conditions of the Credit Agreement, and (b)
become bound by all representations, warranties, covenants, provisions and
conditions of the Credit Agreement and each other Loan Document applicable to
the [US][Foreign] Borrowers as if the Obligor had been the original party making
such representations, warranties and covenants.
3. Representations and Warranties of the Obligor. The Obligor represents
and warrants to Agent and each Lender that:
(a) the Obligor is an entity duly organized or formed, validly
existing and in good standing or in full force and effect under the laws of
its jurisdiction of organization or formation, as the case may be, and is
duly qualified or authorized to do business in each jurisdiction in which
the Obligor is doing business, to the extent the failure to be so
authorized would have an adverse material impact on the Obligor;
(b) the Obligor has full power, authority and legal right to execute
and deliver this Agreement, and to perform and observe the provisions
hereof and of the Credit Agreement and any Notes executed by the Obligor,
and the officers acting on behalf of the Obligor have been duly authorized
to execute and deliver this Agreement;
(c) this Agreement, the Credit Agreement and any Notes executed by the
Obligor are each valid and binding upon the Obligor and enforceable against
the Obligor in accordance with their respective terms; and
(d) each of the representations and warranties set forth in Article VI
of the Credit Agreement applicable to a [US][Foreign] Borrower are true and
complete in all material respects with respect to the Obligor as a
[US][Foreign] Borrower under the Credit Agreement, except to the extent
that any thereof expressly relate to an earlier date.
4. Representations and Warranties of Borrowers and the Obligor. The
Borrowers and the Obligor represent and warrant to Agent and each Lender that:
(a) no Default or Event of Default exists under the Credit Agreement,
nor will any occur immediately after the execution and delivery of this
Agreement or by the performance or observance of any provision hereof; and
(b) neither the execution and delivery of this Agreement, nor the
performance and observance of the provisions hereof, by the Obligor will
conflict with, or constitute a violation or default under, any provision of
any applicable law or of any material contract (including, without
limitation, the Obligor's organizational, constituting or governing
documents) or of any other material writing binding upon the Obligor in any
manner.
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5. Obligations of Borrowers and Each Guarantor Not Affected. Anything
herein to the contrary notwithstanding, Borrowers and each Guarantor of Payment
shall remain bound by the terms and conditions of all of the Loan Documents to
which such Borrower or Guarantor of Payment is a party regardless of the
assumption of the [Obligations][Foreign Borrower Obligations] by the Obligor
hereunder or the enforceability thereof or of any Notes.
6. Conditions Precedent. Concurrently with the execution of this Agreement,
Borrowers and the Obligor, as appropriate, shall:
(a) satisfy each of the conditions set forth in Section 2.13 of the
Credit Agreement;
(b) pay all legal fees and expenses of Agent incurred in connection
with this Agreement;
(c) cause each Guarantor of Payment to consent and agree to and
acknowledge the terms of this Agreement; and
(d) provide such other items as may be reasonably required by Agent or
the Lenders in connection with this Agreement.
7. Binding Nature of Agreement. All provisions of the Credit Agreement
shall remain in full force and effect and be unaffected hereby. This Agreement
is a Related Writing as defined in the Credit Agreement. This Agreement shall
bind and benefit Borrowers, the Obligor and Agent and the Lenders and their
respective successors and assigns.
8. Counterparts. This Agreement may be executed in any number of
counterparts, by different parties hereto in separate counterparts and by
facsimile signature, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement.
9. Ohio Law to Govern. The rights and obligations of all parties hereto
shall be governed by the laws of the State of Ohio, without regard to principles
of conflicts of laws.
[Remainder of page intentionally left blank.]
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10. JURY TRIAL WAIVER. EACH OF THE UNDERSIGNED, TO THE EXTENT PERMITTED BY
LAW, HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, AMONG AGENT, THE
LENDERS, OBLIGOR AND BORROWERS, OR ANY THEREOF, ARISING OUT OF, IN CONNECTION
WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG EACH OF
THEM IN CONNECTION WITH THIS INSTRUMENT OR ANY NOTE OR OTHER AGREEMENT,
INSTRUMENT OR DOCUMENT EXECUTED OR DELIVERED IN CONNECTION THEREWITH OR THE
TRANSACTIONS RELATED HERETO.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized officers as of the date first above written.
OBLIGOR:
[__________________________]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
AGILYSYS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[OTHER BORROWERS]
AGENT:
LASALLE BANK NATIONAL ASSOCIATION,
as Agent on behalf of and for the
benefit of the Lenders
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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GUARANTOR ACKNOWLEDGMENT
Each of the undersigned consents and agrees to and acknowledges the terms
of the foregoing Additional Borrower Assumption Agreement. Each of the
undersigned specifically agrees to the waivers set forth in such agreement,
including, but not limited to, the jury trial waiver. Each of the undersigned
further agrees that the obligations of each of the undersigned pursuant to the
Guaranty of Payment and any other Loan Document to which any of the undersigned
is a party shall remain in full force and effect and be unaffected hereby.
[__________________________]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[INCLUDE ALL GUARANTORS]
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EXHIBIT H
MASTER LETTER OF CREDIT AGREEMENT
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