EXHIBIT 10.4
CREDIT AGREEMENT
This agreement between Bank One, NA, with its main office in Chicago, IL, and
its successors and assigns, (the "Bank"), whose address is ▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇, and Syntel Inc. (the "Borrower"), whose address is ▇▇▇ ▇.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇.
1. CREDIT FACILITIES.
1.1 Scope. This agreement governs Facility A, and, unless otherwise agreed to in
writing by the Bank and the Borrower or prohibited by applicable law, governs
the Credit Facilities.
1.2 Facility A (Line of Credit). The Bank has approved a credit facility to the
Borrower in the principal sum not to exceed $20,000,000.00 in the aggregate at
any one time outstanding ("Facility A"). Credit under Facility A shall be
repayable as set forth in a Line of Credit Note executed concurrently with this
agreement, and any renewals, modifications or extensions thereof. The proceeds
of Facility A shall be used for the following purpose: working capital.
Letter of Credit Sub-Limit. At any time the Borrower is entitled to an advance
under Facility A, the Bank agrees to issue letters of credit for the account of
the Borrower in an amount not in excess of the maximum advance that the Borrower
would then be entitled to obtain under Facility A, provided that (a) the
aggregate maximum available amount which is drawn and unreimbursed or may be
drawn under all letters of credit which are outstanding at any time, including
without limitation all letters of credit issued for the account of the Borrower
which are outstanding on the date of the Line of Credit Note, shall not exceed
$5,000,000.00, (b) the issuance of any letter of credit with an expiration date
beyond the maturity date of the Line of Credit Note shall be entirely at the
discretion of the Bank, (c) any letter of credit shall be a standby letter of
credit and the form of the requested letter of credit shall be satisfactory to
the Bank, in the Bank's sole discretion, and (d) the Borrower shall have
executed an application and reimbursement agreement for any letter of credit in
the Bank's standard form. While any letter of credit is outstanding, the maximum
amount of advances that may be outstanding under the Line of Credit Note shall
be automatically reduced by the maximum amount available to be drawn under any
and all such letters of credit. The Borrower shall pay the Bank a fee for each
standby letter of credit that is issued, calculated at the rate of 1.00% per
annum of the original maximum amount available of such standby letter of credit,
with such fee being calculated on the basis of a 360-day year and the actual
number of days in the period during which the standby letter of credit will be
outstanding; provided, however, that such fee shall not be less than $500.00 for
each letter of credit. No credit shall be given for fees paid due to early
termination of any letter of credit. The Borrower shall also pay the Bank's
standard transaction fees with respect to any transactions occurring on an
account of any letter of credit. Each fee shall be payable when the related
letter of credit is issued, and transaction fees shall be payable upon
completion of the transaction as to which they are charged. All fees may be
debited by the Bank to any deposit account of the Borrower carried with the Bank
without further authority and, in any event, shall be paid by the Borrower
within ten (10) days following billing.
2. DEFINITIONS. As used in this agreement, the following terms have the
following respective meanings:
2.1 "Credit Facilities" means all extensions of credit from the Bank to the
Borrower, whether now existing or hereafter arising, including but not limited
to those described in Section 1.
2.2 "Liabilities" means all obligations, indebtedness and liabilities of
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the Borrower to any one or more of the Bank, BANK ONE CORPORATION, and any of
their subsidiaries, affiliates or successors, now existing or later arising,
including, without limitation, all loans, advances, interest, costs, overdraft
indebtedness, credit card indebtedness, lease obligations, or obligations
relating to any Rate Management Transaction, all monetary obligations incurred
or accrued during the pendency of any bankruptcy, insolvency, receivership or
other similar proceedings, regardless of whether allowed or allowable in such
proceeding, and all renewals, extensions, modifications, consolidations or
substitutions of any of the foregoing, whether the Borrower may be liable
jointly with others or individually liable as a debtor, maker, co-maker, drawer,
endorser, guarantor, surety or otherwise, and whether voluntarily or
involuntarily incurred, due or not due, absolute or contingent, direct or
indirect, liquidated or unliquidated. The term "Rate Management Transaction" in
this agreement means any transaction (including an agreement with respect
thereto) now existing or hereafter entered into among the Borrower, the Bank or
BANK ONE CORPORATION, or any of its subsidiaries or affiliates or their
successors, which is a rate swap, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, forward transaction,
currency swap transaction, cross-currency rate swap transaction, currency option
or any other similar transaction (including any option with respect to any of
these transactions) or any combination thereof, whether linked to one or more
interest rates, foreign currencies, commodity prices, equity prices or other
financial measures.
2.3 "Notes" means the Line of Credit Note(s) described in Section 1, and all
promissory notes, instruments and/or contracts evidencing the terms and
conditions of the Liabilities. 2.4 "Affiliate" means any person, corporation or
other entity directly or indirectly controlling, controlled by or under common
control with the Borrower and any director or officer of the Borrower or any
subsidiary of the Borrower.
2.5 "Intangible Assets" means the aggregate amount of all assets classified as
intangible assets under generally accepted accounting principles, including,
without limitation, goodwill, trademarks, patents, copyrights, organization
expenses, franchises, licenses, trade names, brand names, mailing lists,
catalogs, excess of cost over book value of assets acquired, and bond discount
and underwriting expenses.
2.6 "Tangible Capital Funds" means Tangible Net Worth plus Subordinated Debt.
2.7 "Tangible Net Worth" means total assets less the sum of Intangible Assets,
receivables from stockholders and affiliates, and total liabilities.
3. CONDITIONS PRECEDENT.
3.1 Conditions Precedent to Initial Extension of Credit. Before the first
extension of credit governed by this agreement, whether by disbursement of a
loan, issuance of a letter of credit, or otherwise, the Borrower shall deliver
to the Bank, in form and substance satisfactory to the Bank:
A. Loan Documents. The Notes, and as applicable, the letter of credit
applications, the security agreements, the pledge agreements, financing
statements, mortgages or deeds of trust, the guaranties, the subordination
agreements, and any other loan documents which the Bank may reasonably require
to give effect to the transactions described in this agreement;
B. Evidence of Due Organization and Good Standing. Evidence, satisfactory to the
Bank, of the due organization and good standing of the Borrower and every other
business entity that is a party to this agreement or any other loan document
required by this agreement; and
C. Evidence of Authority to Enter into Loan Documents. Evidence that (i) each
party to this agreement and any other loan document required by this agreement
is authorized to enter into the transactions described in this agreement and the
other loan documents, and (ii) the person signing
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on behalf of each such party is authorized to do.
3.2 Conditions Precedent to Each Extension of Credit. Before any extension of
credit governed by this agreement, whether by disbursement of a loan, issuance
of a letter of credit or otherwise, the following conditions must be satisfied:
A. Representations. The representations of the Borrower are true on and as of
the date of the extension of credit;
B. No Event of Default. No default has occurred in any provision of this
agreement and is continuing or would result from the extension of credit, and no
event has occurred which would constitute the occurrence of any default but for
the lapse of time until the end of any grace or cure period; and
C. Additional Approvals, Opinions, and Documents. The Bank has received any
other approvals, opinions and documents as it may reasonably request.
4. AFFIRMATIVE COVENANTS. The Borrower shall:
4.1 Insurance. Maintain insurance with financially sound and reputable insurers
covering its properties and business against those casualties and contingencies
and in the types and amounts as are in accordance with sound business and
industry practices.
4.2 Existence. Maintain its existence and business operations as presently in
effect in accordance with all applicable laws and regulations, pay its debts and
obligations when due under normal terms, and pay on or before their due date,
all taxes, assessments, fees and other governmental monetary obligations, except
as they may be contested in good faith if they have been properly reflected on
its books and, at the Bank's request, adequate funds or security has been
pledged to insure payment.
4.3 Financial Records. Maintain proper books and records of account, in
accordance with generally accepted accounting principles, and consistent with
financial statements previously submitted to the Bank.
4.4 Inspection. Permit the Bank to inspect and copy the Borrower's business
records at such times and at such intervals as the Bank may reasonably require,
and to discuss the Borrower's business, operations, and financial condition with
the Borrower's officers and accountants.
4.5 Financial Reports. Furnish to the Bank whatever information, books and
records the Bank may reasonably request, including at a minimum:
A. Within 180 days after and as of the end of each of its fiscal years, a
detailed financial statement including a balance sheet and statements of income,
cash flow and retained earnings, such financial statement, to be audited by an
independent certified public accountant of recognized standing acceptable to the
Bank in the Bank's sole discretion.
B. Via either the ▇▇▇▇▇ System or its Home Page, within forty-five (45) days
after the filing of its Quarterly Report on Form 10-Q for the fiscal quarter
then ended with the Securities and Exchange Commission, but no event later than
forty-five (45) days after the end of such fiscal quarter, copies of the
financial statements for such fiscal quarter as contained in such Quarterly
Report on Form 10-Q, and, as soon as it shall become available, a quarterly
report to shareholders of the Borrower for the fiscal quarter than ended.
C. Via either the ▇▇▇▇▇ System or its Home Page, promptly after the same become
publicly available, copies of all periodic and other reports, proxy statements
and other materials filed by the Borrower or any subsidiary with the Securities
and Exchange Commission or any governmental authority succeeding to any or all
of the functions of said Commission. If for any reason the ▇▇▇▇▇ System and/or
its Home Page are not available to the Borrower as is required for making
available the financial statements or reports referred to above, the Borrower
shall then furnish a copy of such financial statements or reports to the Bank.
For the purposes of this section, "▇▇▇▇▇ System" means the Electronic Data
Gathering Analysis and Retrieval System owned and operated by the United States
Securities and Exchange Commission or any replacement system, and "Home Page"
means the Borrower's corporate home page on the World Wide Web accessible
through the Internet via the universal resource locator (URL) identified as
"▇▇▇.▇▇▇▇▇▇.▇▇▇" or such other
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universal resource locator that the Borrower shall designate in writing to the
Bank as its corporate home page on the World Wide Web.
4.6 Notices of Claims, Litigation, Defaults, etc. Promptly inform the Bank in
writing of (1) all existing and all threatened litigation, claims,
investigations, administrative proceedings and similar actions affecting the
Borrower, which could materially affect the financial condition of the Borrower;
(2) the occurrence of any event which gives rise to the Bank's option to
terminate the Credit Facilities; (3) the institution of steps by the Borrower to
withdraw from, or the institution of any steps to terminate, any employee
benefit plan as to which the Borrower may have liability; (4) any additions to
or changes in the locations of the Borrower's businesses; and (5) any alleged
breach of any provision of this agreement or of any other agreement related to
the Credit Facilities by the Bank.
4.7 Additional Information. Furnish such additional information and statements,
as the Bank may request, from time to time.
4.8 Insurance Reports. Furnish to the Bank, upon request of the Bank, reports on
each existing insurance policy showing such information as the Bank may
reasonably request.
4.9 Other Agreements. Comply with all terms and conditions of all other
agreements, whether now or hereafter existing, between the Borrower and any
other party.
4.10 Title to Assets and Property. Maintain good and marketable title to all of
the Borrower's assets and properties.
4.11 Additional Assurances. Make, execute and deliver to the Bank such other
agreements as the Bank may reasonably request to evidence the Credit Facilities
and to perfect any security interests.
4.12 Employee Benefit Plans. Maintain each employee benefit plan as to which the
Borrower may have any liability, in compliance with all applicable requirements
of law and regulations.
5. NEGATIVE COVENANTS.
5.1 Unless otherwise noted, the financial requirements set forth in this section
will be computed in accordance with generally accepted accounting principles
applied on a basis consistent with financial statements previously submitted by
the Borrower to the Bank.
5.2 Without the written consent of the Bank, the Borrower will not:
A. Dividends. Acquire or retire any of its shares of capital stock, or declare
or pay dividends or make any other distributions upon any of its shares of
capital stock, except in the absence of the occurrence of any default, dividends
in its capital stock.
B. Sale of Shares. Issue, sell or otherwise dispose of any shares of its capital
stock or other securities, or rights, warrants or options to purchase or acquire
those shares or securities.
C. Debt. Incur, or permit to remain outstanding, debt for borrowed money or
installment obligations, except debt reflected in the latest financial statement
of the Borrower furnished to the Bank prior to execution of this agreement and
not to be paid with proceeds of borrowings under the Credit Facilities. For
purposes of this covenant, the sale of any account receivable is the incurring
of debt for borrowed money.
D. Guaranties. Guarantee or otherwise become or remain secondarily liable on the
undertaking of another,except for endorsement of drafts for deposit and
collection in the ordinary course of business.
E. Liens. Create or permit to exist any lien on any of its property, real or
personal, except: existing liens known to the Bank; liens to the Bank; liens
incurred in the ordinary course of business securing current nondelinquent
liabilities for taxes, worker's compensation, unemployment insurance, social
security and pension liabilities.
F. Use of Proceeds. Use, or permit any proceeds of the Credit Facilities to be
used, directly or indirectly, for the purpose of "purchasing or carrying any
margin stock" within the meaning of Federal Reserve Board Regulation
U. At the Bank's request, the Borrower will furnish a completed Federal
Reserve Board Form U-1.
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G. Continuity of Operations. (1) Engage in any business activities substantially
different from those in which the Borrower is presently engaged; (2) cease
operations, liquidate, merge, transfer, acquire or consolidate with any other
entity, change its name, dissolve, or sell any assets out of the ordinary course
of business; or (3)enter into any arrangement with any person providing for the
leasing by the Borrower to any subsidiary of real or personal property which has
been sold or transferred by the Borrower or subsidiary to such person.
H. Limitation on Negative Pledge Clauses. Enter into any agreement with any
person other than the Bank which prohibits or limits the ability of the Borrower
or any of its subsidiaries to create or permit to exist any lien on any of its
property, assets or revenues, whether now owned or hereafter acquired.
I. Conflicting Agreements. Enter into any agreement containing any provision
which would be violated or breached by the performance of the Borrower's
obligations under this agreement.
J. Tangible Net Worth. Permit as of each fiscal quarter end, its Tangible Net
Worth to be less than $100,000,000.00.
K. Leverage Ratio. Permit as of each fiscal quarter end, its ratio of total
liabilities to Tangible Net Worth to be greater than 1.00 to 1.00.
6. REPRESENTATIONS BY THE BORROWER. Each Borrower represents that: (a) the
execution and delivery of this agreement and the Notes, and the performance of
the obligations they impose, do not violate any law, conflict with any agreement
by which it is bound, or require the consent or approval of any governmental
authority or other third party, (b) this agreement and the Notes are valid and
binding agreements, enforceable according to their terms, (c) all balance
sheets, profit and loss statements, and other financial statements and other
information furnished to the Bank in connection with the Liabilities are
accurate and fairly reflect the financial condition of the organizations and
persons to which they apply on their effective dates, including contingent
liabilities of every type, which financial condition has not changed materially
and adversely since those dates, (d) no litigation, claim, investigation,
administrative proceeding or similar action (including those for unpaid taxes)
against the Borrower is pending or threatened, and no other event has occurred
which may in any one case or in the aggregate materially adversely affect the
Borrower's financial condition and properties, other than litigation, claims, or
other events, if any, that have been disclosed to and acknowledged by the Bank
in writing, (e) all of the Borrower's tax returns and reports that are or were
required to be filed, have been filed, and all taxes, assessments and other
governmental charges have been paid in full, except those presently being
contested by the Borrower in good faith and for which adequate reserves have
been provided, (f) the Borrower is not a "holding company" or a company
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended, (g) the Borrower is not a "holding company", or
a "subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" or of a "subsidiary company" of a "holding company" within the meaning
of the Public Utility Holding Company Act of 1935, as amended, (h)there are no
defenses or counterclaims, offsets or adverse claims, demands or actions of any
kind, personal or otherwise, that the Borrower could assert with respect to this
agreement or the Credit Facilities, (i) the Borrower owns, or is licensed to
use, all trademarks, trade names, copyrights, technology, know-how and processes
necessary for the conduct of its business as currently conducted, and (j) no
part of the proceeds of the Credit Facilities will be used for "purchasing" or
"carrying" any "margin stock" within the respective meanings of each of the
quoted terms under Regulation U of the Board of Governors of the Federal Reserve
System of the United States (the "Board") as now and from time to time hereafter
in effect or for any purpose which violates the provisions of any regulations of
the Board. Each Borrower, other than a natural person, further represents that:
(a) it is duly organized, existing and in good standing pursuant to the laws
under which it is
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organized, and (b) the execution and delivery of this agreement and the Notes
and the performance of the obligations they impose (i) are within its powers,
(ii) have been duly authorized by all necessary action of its governing body,
and (iii) do not contravene the terms of its articles of incorporation or
organization, its by-laws, or any partnership, operating or other agreement
governing its affairs.
7. DEFAULT/REMEDIES. If any of the Credit Facilities are not paid at maturity,
whether by acceleration or otherwise, or if a default by anyone occurs under the
terms of this agreement, the Notes or any agreement related to the Credit
Facilities, then the Bank shall have all of the rights and remedies provided by
any law or agreement.
8. MISCELLANEOUS.
8.1 Notice. Any notices and demands under or related to this document shall be
in writing and delivered to the intended party at its address stated herein, and
if to the Bank, at its main office if no other address of the Bank is specified
herein, by one of the following means: (a) by hand, (b) by a nationally
recognized overnight courier service, or (c) by certified mail, postage prepaid,
with return receipt requested. Notice shall be deemed given: (a) upon receipt if
delivered by hand, (b) on the Delivery Day after the day of deposit with a
nationally recognized courier service, or (c) on the third Delivery Day after
the notice is deposited in the mail. "Delivery Day" means a day other than a
Saturday, a Sunday or any other day on which national banking associations are
authorized to be closed. Any party may change its address for purposes of the
receipt of notices and demands by giving notice of such change in the manner
provided in this provision.
8.2 No Waiver. No delay on the part of the Bank in the exercise of any right or
remedy waives that right or remedy. No single or partial exercise by the Bank of
any right or remedy precludes any other future exercise of it or the exercise of
any other right or remedy. No waiver or indulgence by the Bank of any default is
effective unless it is in writing and signed by the Bank, nor shall a waiver on
one occasion bar or waive that right on any future occasion.
8.3 Integration. This agreement, the Notes, and any agreement related to the
Credit Facilities embody the entire agreement and understanding between the
Borrower and the Bank and supersede all prior agreements and understandings
relating to their subject matter. If any one or more of the obligations of the
Borrower under this agreement or the Notes is invalid, illegal or unenforceable
in any jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Borrower shall not in any way be affected or impaired, and
the invalidity, illegality or unenforceability in one jurisdiction shall not
affect the validity, legality or enforceability of the obligations of the
Borrower under this agreement or the Notes in any other jurisdiction.
8.4 Joint and Several Liability. Each Borrower, if more than one, is jointly and
severally liable.
8.5 Governing Law and Venue. This agreement is delivered in the State of
Michigan and governed by Michigan law (without giving effect to its laws of
conflicts). The Borrower agrees that any legal action or proceeding with respect
to any of its obligations under this agreement may be brought by the Bank in any
state or federal court located in the State of Michigan, as the Bank in its sole
discretion may elect. By the execution and delivery of this agreement, the
Borrower submits to and accepts, for itself and in respect of its property,
generally and unconditionally, the non-exclusive jurisdiction of those courts.
The Borrower waives any claim that the State of Michigan is not a convenient
forum or the proper venue for any such suit, action or proceeding.
8.6 Captions. Section headings are for convenience of reference only and do not
affect the interpretation of this agreement.
8.7 Subsidiaries and Affiliates of the Borrower. To the extent the context of
any provisions of this agreement makes it appropriate, including without
limitation any representation, warranty or covenant, the word "Borrower" as used
in this agreement shall include all of the Borrower's subsidiaries and
affiliates. Notwithstanding the foregoing,
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however, under no circumstances shall this agreement be construed to require the
Bank to make any loan or other financial accommodation to any of the Borrower's
subsidiaries or affiliates.
8.8 Survival of Representations and Warranties. The Borrower understands and
agrees that in extending the Credit Facilities, the Bank is relying on all
representations, warranties, and covenants made by the Borrower in this
agreement or in any certificate or other instrument delivered by the Borrower to
the Bank under this agreement. The Borrower further agrees that regardless of
any investigation made by the Bank, all such representations, warranties and
covenants will survive the making of the Credit Facilities and delivery to the
Bank of this agreement, shall be continuing in nature, and shall remain in full
force and effect until such time as the Borrower's indebtedness to the Bank
shall be paid in full.
8.9 Non-Liability of the Bank. The relationship between the Borrower and the
Bank created by this agreement is strictly a debtor and creditor relationship
and not fiduciary in nature, nor is the relationship to be construed as creating
any partnership or joint venture between the Bank and the Borrower. The Borrower
is exercising the Borrower's own judgement with respect to the Borrower's
business. All information supplied to the Bank is for the Bank's protection only
and no other party is entitled to rely on such information. There is no duty for
Bank to review, inspect, supervise or inform the Borrower of any matter with
respect to the Borrower's business. The Bank and the Borrower intend that the
Bank may reasonably rely on all information supplied by the Borrower to the
Bank, together with all representations and warranties given by the Borrower to
the Bank, without investigation or confirmation by the Bank and that any
investigation or failure to investigate will not diminish the Bank's right to so
rely.
8.10 Indemnification of the Bank. The Borrower agrees to indemnify, defend and
hold the Bank and BANK ONE CORPORATION, or any of its subsidiaries or affiliates
or their successors, and each of their respective shareholders, directors,
officers, employees and agents (collectively, the "Indemnified Persons")
harmless from any and all obligations, claims, liabilities, losses, damages,
penalties, fines, forfeitures, actions, judgments, suits, costs, expenses and
disbursements of any kind or nature (including, without limitation, any
Indemnified Person's attorneys' fees) (collectively, the "Claims") which may be
imposed upon, incurred by or assessed against any Indemnified Person (whether or
not caused by any Indemnified Person's sole, concurrent, or contributory
negligence) arising out of or relating to this agreement; the exercise of the
rights and remedies granted under this agreement (including, without limitation,
the enforcement of this agreement and the defense of any Indemnified Person's
action or inaction in connection with this agreement); and in connection with
the Borrower's failure to perform all of the Borrower's obligations under this
agreement, except to the limited extent that the Claims against any such
Indemnified Person are proximately caused by such Indemnified Person's willful
misconduct. The indemnification provided for in this section shall survive the
termination of this agreement and shall extend to and continue to benefit each
individual or entity who is or has at any time been an Indemnified Person. The
Borrower's indemnity obligations under this section shall not in any way be
affected by the presence or absence of covering insurance, or by the amount of
such insurance or by the failure or refusal of any insurance carrier to perform
any obligation on its part under any insurance policy or policies affecting the
Borrower's assets or the Borrower's business activities. Should any Claim be
made or brought against any Indemnified Person by reason of any event as to
which the Borrower's indemnification obligations apply, then, upon any
Indemnified Person's demand, the Borrower, at its sole cost and expense, shall
defend such Claim in the Borrower's name, if necessary, by the attorneys for the
Borrower's insurance carrier (if such Claim is covered by insurance), or
otherwise by such attorneys as any Indemnified Person shall approve. Any
Indemnified Person may also engage its own attorneys at its reasonable
discretion to defend the Borrower and to assist in its
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defense and the Borrower agrees to pay the fees and disbursements of such
attorneys.
8.11 Counterparts. This agreement may be executed in multiple counterparts, each
of which, when so executed, shall be deemed an original, but all such
counterparts, taken together, shall constitute one and the same agreement.
8.12 Sole Discretion of the Bank. Whenever the Bank's consent or approval is
required under this agreement, the decision as to whether or not to consent or
approve shall be in the sole and exclusive discretion of the Bank and the Bank's
decision shall be final and conclusive.
8.13 Advice of Counsel. The Borrower acknowledges that it has been advised by
counsel, or had the opportunity to be advised by counsel, in the negotiation,
execution and delivery of this agreement and any documents executed and
delivered in connection with the Credit Facilities.
8.14 Recovery of Additional Costs. If the imposition of or any change in any
law, rule, regulation, or guideline, or the interpretation or application of any
thereof by any court or administrative or governmental authority (including any
request or policy not having the force of law) shall impose, modify, or make
applicable any taxes (except federal, state, or local income or franchise taxes
imposed on the Bank), reserve requirements, capital adequacy requirements, or
other obligations which would (A) increase the cost to the Bank for extending or
maintaining the Credit Facilities, (B) reduce the amounts payable to the Bank
under the Credit Facilities, or (C) reduce the rate of return on the Bank's
capital as a consequence of the Bank's obligations with respect to the Credit
Facilities, then the Borrower agrees to pay the Bank such additional amounts as
will compensate the Bank therefor, within five (5) days after the Bank's written
demand for such payment. The Bank's demand shall be accompanied by an
explanation of such imposition or charge and a calculation in reasonable detail
of the additional amounts payable by the Borrower, which explanation and
calculations shall be conclusive in the absence of manifest error.
8.15 Conflicting Terms. If this agreement is inconsistent with any provision in
any agreement related to the Credit Facilities, the Bank shall determine, in the
Bank's sole and absolute discretion, which of the provisions shall control any
such inconsistency.
8.16 Expenses. The Borrower agrees to pay or reimburse the Bank for all its
out-of-pocket costs and expenses and reasonable attorneys' fees (including the
fees of in-house counsel) incurred in connection with the development,
preparation and execution of, and in connection with the enforcement or
preservation of any rights under, this agreement, any amendment, supplement, or
modification thereto, and any other documents prepared in connection herewith or
therewith. These costs and expenses include without limitation any costs or
expenses incurred by the Bank in any bankruptcy, reorganization, insolvency or
other similar proceeding.
9. WAIVER OF SPECIAL DAMAGES. THE BORROWER WAIVES, TO THE MAXIMUM EXTENT NOT
PROHIBITED BY LAW, ANY RIGHT THE UNDERSIGNED MAY HAVE TO CLAIM OR RECOVER FROM
THE BANK IN ANY LEGAL ACTION OR PROCEEDING ANY SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES.
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10. JURY WAIVER. THE BORROWER AND THE BANK HEREBY VOLUNTARILY,
KNOWINGLY,IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT, OR
OTHERWISE) BETWEEN THE BORROWER AND THE BANK ARISING OUT OF OR IN ANY WAY
RELATED TO THIS DOCUMENT. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE BANK TO
PROVIDE THE FINANCING DESCRIBED HEREIN.
Dated: October 10, 2002
BORROWER:
Address(es) for Notices: Syntel Inc
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇: /s/ ▇. ▇. ▇▇▇▇▇▇
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Syntel Inc. Printed Name: ▇.▇ ▇▇▇▇▇▇
Attn: Title: Sr. Director Internal
Audit, Tax and Treasury
Date: August 31, 2002
Address for Notices: BANK:
▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇ Bank One, NA, with its main office in
Chicago, IL
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Printed Name:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Asst. Vice President
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