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EXHIBIT 10.9
CAMINUS LLC
CREDIT AGREEMENT
JUNE 23, 1999
$5,000,000
FLEET BANK, N.A.
LENDER
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TABLE OF CONTENTS
PAGE
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Defined Terms........................................................................... 1
Section 1.02. Other Definitional Provisions........................................................... 23
Section 1.03. Types and Classes of Loans.............................................................. 23
ARTICLE II.
LOANS
Section 2.01. Loans................................................................................... 24
Section 2.02. Use of Proceeds......................................................................... 24
Section 2.03. Procedures for Borrowings and Disbursements............................................. 25
Section 2.04. Notes................................................................................... 25
ARTICLE III.
GENERAL PROVISIONS
Section 3.01. Fees.................................................................................... 26
Section 3.02. Interest................................................................................ 26
Section 3.03. Principal Payments; Reduction of Commitments; and Termination of Commitments............ 27
Section 3.04. Optional and Mandatory Prepayments...................................................... 28
Section 3.05. Late Charges and Default Interest....................................................... 30
Section 3.06. Requirements of Law..................................................................... 30
Section 3.07. Illegality.............................................................................. 31
Section 3.08. Limitation on Types of Loans............................................................ 31
Section 3.09. Compensation............................................................................ 32
Section 3.10. Taxes................................................................................... 32
Section 3.11. Computations............................................................................ 33
Section 3.12. Payments................................................................................ 33
Section 3.13. Lending Offices......................................................................... 34
Section 3.14. Set-Offs, Etc........................................................................... 34
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.01. Conditions Precedent to the Revolving Loan.............................................. 35
Section 4.02. Conditions Precedent to all Loans....................................................... 39
ARTICLE V.
REPRESENTATIONS AND WARRANTIES
Section 5.01. Financial Condition..................................................................... 40
Section 5.02. No Change............................................................................... 41
Section 5.03. Compliance with Law..................................................................... 41
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Section 5.04. Necessary Action; Consent; Enforceable Obligations...................................... 41
Section 5.05. No Legal Bar............................................................................ 42
Section 5.06. No Material Litigation.................................................................. 42
Section 5.07. No Default.............................................................................. 42
Section 5.08. Ownership of Property; Liens............................................................ 43
Section 5.09. Indebtedness and Liens.................................................................. 43
Section 5.10. Intellectual Property, Material Authorizations and Capitalization Documents............. 43
Section 5.11. No Burdensome Restrictions.............................................................. 44
Section 5.12. Taxes................................................................................... 44
Section 5.13. Insurance............................................................................... 44
Section 5.14. ERISA................................................................................... 44
Section 5.15. Capitalization of Company............................................................... 44
Section 5.16. Subsidiaries............................................................................ 44
Section 5.17. Investment Company Act.................................................................. 45
Section 5.18. Holding Company Act..................................................................... 45
Section 5.19. Name Change............................................................................. 45
Section 5.20. Brokers................................................................................. 45
Section 5.21. Environmental Matters................................................................... 45
Section 5.22. Accuracy and Completeness of Information................................................ 46
Section 5.23. Labor Relations......................................................................... 47
Section 5.24. Year 2000 Problem....................................................................... 47
ARTICLE VI.
AFFIRMATIVE COVENANTS
Section 6.01. Maintenance of Existence................................................................ 47
Section 6.02. Maintenance of Financial Records........................................................ 47
Section 6.03. Maintenance of Properties............................................................... 48
Section 6.04. Maintenance of Insurance................................................................ 48
Section 6.05. Compliance with Laws.................................................................... 48
Section 6.06. Right of Inspection..................................................................... 48
Section 6.07. Reporting Requirements and Notices...................................................... 49
Section 6.08. Additional Collateral................................................................... 52
Section 6.09. Environmental Covenants................................................................. 52
Section 6.10. Certain Obligations Regarding Subsidiaries; Further Assurances Covenants................ 54
Section 6.11. Additional Capital Contributions........................................................ 55
Section 6.12. Post-Closing Obligations................................................................ 55
ARTICLE VII.
NEGATIVE COVENANTS
Section 7.01. Liens................................................................................... 55
Section 7.02. Indebtedness............................................................................ 56
Section 7.03. Disposition of Assets................................................................... 57
Section 7.04. Consolidations, Mergers, etc............................................................ 57
Section 7.05. Investments and Permitted Acquisitions.................................................. 57
Section 7.06. Restricted Payments..................................................................... 59
Section 7.07. Guarantee Obligations................................................................... 59
Section 7.08. Transaction With Affiliates............................................................. 59
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Section 7.09. Lines of Business....................................................................... 60
Section 7.10. Use of Proceeds......................................................................... 60
Section 7.11. Issuance and Sale of Securities......................................................... 60
Section 7.12. Negative Pledge Clauses................................................................. 60
Section 7.13. Accounting Changes...................................................................... 60
Section 7.14. Financial Covenants..................................................................... 60
Section 7.15. Modification of Certain Documents....................................................... 61
Section 7.16. Optional Payments....................................................................... 61
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
Section 8.01. Events of Default....................................................................... 61
Section 8.02. Remedies on Event of Default............................................................ 64
ARTICLE IX.
MISCELLANEOUS
Section 9.01. Notices, Etc............................................................................ 64
Section 9.02. No Waiver; Remedies..................................................................... 65
Section 9.03. Amendments, Etc......................................................................... 65
Section 9.04. Successors and Assigns.................................................................. 65
Section 9.05. Assignments and Participation........................................................... 66
Section 9.06. Expenses; Indemnity; Damage Waiver...................................................... 66
Section 9.07. SUBMISSION TO JURISDICTION.............................................................. 68
Section 9.08. WAIVER OF JURY TRIAL.................................................................... 68
Section 9.09. GOVERNING LAW........................................................................... 68
Section 9.10. Survival................................................................................ 69
Section 9.11. Captions................................................................................ 69
Section 9.12. Severability of Provisions.............................................................. 69
Section 9.13. Entire Agreement........................................................................ 69
Section 9.14. Usury Limitations....................................................................... 69
Section 9.15. Interpretation and Construction......................................................... 69
Section 9.16. Counterparts............................................................................ 70
Section 9.17. Confidentiality......................................................................... 70
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SCHEDULES
Schedule A Commitments
Schedule 1(A) Capitalization
Schedule 1(B) Subsidiaries
Schedule 2 Intellectual Property, Material Authorizations,
Capitalization Documents and Other Material
Agreements
Schedule 3 Disclosures
Schedule 4 Existing Indebtedness and Liens
Schedule 5 Real Property Interests
EXHIBITS
Exhibit A-1 Form of Revolving Note
Exhibit A-2 Form of Working Capital Note
Exhibit B-1 Borrowing Notice
Exhibit B-2 Eurodollar Notice
Exhibit B-3 Borrowing Base Certificate
Exhibit C-1 Company Security Agreement
Exhibit C-2 Subsidiary Security Agreement
Exhibit D UK Security Agreement
Exhibit E Subsidiary Guarantee
Exhibit F-1 Company Pledge Agreement
Exhibit F-2 Subsidiary Pledge Agreement
Exhibit G-1 Quarterly Compliance Certificate
Exhibit G-2 Annual Compliance Certificate
Exhibit H Perfection Certificate
Exhibit I-1 Opinion of principal counsel
Exhibit I-2 Opinion of UK counsel
Exhibit J Management Subordination Agreement
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CREDIT AGREEMENT
CREDIT AGREEMENT, dated as of June 23, 1999, between CAMINUS LLC
(formerly known as GFI Caminus LLC and Caminus Energy Ventures LLC), a Delaware
limited liability company (the "Company"), and FLEET BANK, N.A., a national
banking association organized under the laws of the United States (the
"Lender").
P R E L I M I N A R Y S T A T E M E N T S:
WHEREAS, the Company and its Subsidiaries are engaged in the business
of developing, installing and maintaining software products and related
equipment and systems for use primarily in the energy industry and for the
trading of energy-related assets, providing strategic consulting services in the
foregoing areas, and engaging in substantially related activities and services
and extensions thereof (collectively, the "Company Business");
WHEREAS, the Company has requested the Lender to extend to the Company
senior secured credit facilities in an aggregate principal sum of up to
$5,000,000 to be used for, among other things, the refinancing of certain
indebtedness of the Company and for certain other purposes, all as more
specifically identified below; and
WHEREAS, the Lender has agreed to the request of the Company, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, the parties to this Agreement hereby agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. DEFINED TERMS. As used in this Agreement, the following
terms have the following meanings:
"Account" or "Accounts Receivable" means any right to payment for goods
sold or leased or for services, including but not limited to "accounts" as
defined in Section 9-106 of the UCC in effect as of the date hereof in the State
of New York, whether or not such right is evidenced by notes, instruments or
chattel paper and whether or not it has been earned by performance.
"Acquisition" means, with respect to the Company or any Subsidiary, (i)
the acquisition of the Capital Stock of another Person who is incorporated or
organized under the laws of any state of the United States, and/or (ii) the
acquisition of all or substantially all of the assets of another Person or of a
separate operating unit or division of another Person.
"Acquisition Agreements" means, collectively, with respect to each
Acquisition, the respective purchase and sale and similar and related agreements
which set forth the terms and conditions of such Acquisition, subject to Section
7.15 hereof, as amended, supplemented or modified from time to time.
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"Adjusted Eurodollar Rate" means a per-annum rate equal to the
Eurodollar Rate plus the Applicable Margin for Eurodollar Loans.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person means
the power, directly or indirectly, either to (i) vote five percent (5%) or more
of the securities having ordinary voting power for the election of directors (or
similar governing body) of such Person, or (ii) direct or cause the direction of
the management and policies of such Person, whether by contract or otherwise.
"Aggregate Outstanding Revolving Extensions of Credit" means, as to the
Lender at any time during the Revolving Loan Commitment Period, an amount equal
to the aggregate principal amount of all Revolving Loans then outstanding.
"Agreement" means this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Applicable Lending Office" means, for the Lender and for each Type of
Loan, the "Lending Office" of the Lender (or of an affiliate of the Lender)
designated for such Type of Loan on the signature pages hereof or such other
office of the Lender (or of an affiliate of the Lender) as the Lender may from
time to time specify to the Lender and the Company as the office by which its
Loans of such Type are to be made and maintained.
"Applicable Margin" means the percentages applicable to Eurodollar
Loans based on the Consolidated Senior Funded Leverage Ratio as follows:
Consolidated Senior Funded Applicable Margin
Leverage Ratio Eurodollar Loans
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Equal to or greater than 3.00 3.00%
Less than 3.00 but equal to or
greater than 2.00 2.75%
Less than 2.00 2.50%
The Consolidated Senior Funded Leverage Ratio shall be calculated by
the Company as of the end of each Fiscal Quarter and shall be reported to the
Lender pursuant to the Quarterly Compliance Certificate referred to in Section
6.07(d)(2) hereof and delivered with the Company's financial statements for such
Fiscal Quarter referred to in Section 6.07(b) hereof. The Applicable Margin
shall in each case be based upon the Consolidated Senior Funded Leverage Ratio
as of the end of the Company's most recently ended Fiscal Quarter and shall be
adjusted, if necessary, effective as of the first day of the calendar month
immediately following the delivery of each of the Quarterly Compliance
Certificate and the financial statements referenced above for such Fiscal
Quarter; provided that, in the event that the financial statements and the
Quarterly Compliance Certificate required to be delivered pursuant to Section
6.07(b) and Section 6.07(d)(2), as applicable, are not delivered when due, then
during the period from
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the date such financial statements and Quarterly Compliance Certificate were due
until the date five Business Days after the date upon which they are actually
delivered to the Lender, the Applicable Margin shall be the maximum amount set
forth in the table above. Notwithstanding the foregoing, the initial Applicable
Margin shall be 3.00% per annum, and shall not be adjusted based on the
Consolidated Senior Funded Leverage Ratio determined for any Fiscal Quarter
ending prior (or nearest) to September 30, 1999.
"Available Revolving Loan Commitment" means, as to the Lender at any
time during the Revolving Loan Commitment Period, the excess, if any, of (i)
such Lender's Revolving Loan Commitment, over (ii) the Aggregate Outstanding
Revolving Extensions of Credit.
"Available Working Capital Loan Commitment" means, as to the Lender at
any time during the Working Capital Loan Commitment Period, the excess, if any,
of (i) such Lender's Maximum Working Capital Borrowing Commitment, over (ii) the
aggregate principal amount of all Working Capital Loans made by such Lender then
outstanding.
"Base Rate" means the variable per annum rate of interest from time to
time announced by the Lender at the Principal Office as its prime commercial
lending rate (it being acknowledged by the Company that such rate is a reference
rate only and does not necessarily represent the lowest or best rate actually
charged to any customer on commercial borrowings). Each change in any interest
rate provided for herein based upon the Base Rate resulting from a change in the
Base Rate shall take effect at the time of such change in the Base Rate and the
Lender agrees to provide written notice to the Company of each change in the
Base Rate.
"Base Rate Loans" means Loans that bear interest at rates based upon
the Base Rate.
"Borrowing Base" means, at any time, an amount equal to 85% of all
Eligible Accounts outstanding at such time, minus the lesser of (i) $500,000 and
(ii) the Aggregate Outstanding Revolving Extensions of Credit.
"Borrowing Base Certificate" means a certificate executed by a
Responsible Officer of the Company in substantially the form of Exhibit B-3
hereto.
"Borrowing Date" means any Business Day specified in a Borrowing Notice
pursuant to Section 2.03(a) hereof as a date on which the Company requests the
Lender to make Loans hereunder; provided that the Borrowing Date with respect to
the Revolving Loans shall be the Closing Date.
"Borrowing Notice" means a loan request and certificate executed by a
Responsible Officer of the Company in substantially the form of Exhibit B-1
hereto.
"Business Day" means (i) any day other than a Saturday, Sunday or other
day on which banks in New York City, New York, are authorized or required by law
or other governmental action to be closed, and (ii) if such day relates to a
borrowing of, a payment or prepayment of principal of or interest on, or a
Continuation of or Conversion into, a Eurodollar Loan or a notice by the Company
with respect to any such borrowing, payment, prepayment, Continuation or
Conversion, any day which is a Business Day described in clause (i) and which is
also a day on which dealings in Dollar deposits are carried out in the London
interbank market.
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"Caminus Acquisition" means the acquisition of Caminus Energy Limited
by the Company from the Caminus Sellers pursuant to the Caminus Acquisition
Documents.
"Caminus Acquisition Documents" means, collectively, any and all
purchase and sale agreements, promissory notes and related documents and
instruments, in each case heretofore delivered by the Company and/or any
Subsidiary Guarantor to or for the benefit of the Caminus Sellers in connection
with the Caminus Acquisition, and listed on Schedule 2 hereto.
"Caminus Repurchase" means the repurchase by the Company of all of its
Capital Stock held by SS&C in accordance with the terms and conditions of the
SS&C Documents.
"Caminus Sellers" means, collectively, ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D. and
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Ph.D.
"Capital Lease" means any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on the balance sheet of the lessee.
"Capital Lease Obligations" means, with respect to any Person as at any
date of determination, the aggregate liability of such Person under Capital
Leases which liability is (or is required to be) reflected on the balance sheet
of such Person under GAAP.
"Capital Stock" means any and all shares, interests, participation or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants or options to purchase any of the foregoing.
"Capitalization Documents" means, collectively, each of the
subscription agreements, stockholders' agreements, shareholder agreements, stock
purchase agreements, certificates of designation, operating agreements,
partnership agreements, employment agreements, services agreements and other
agreements, including, without limitation, the Operating Agreement, governing
the issuance or setting forth the terms of any Capital Stock issued or to be
issued by the Company or any Subsidiary.
"Cash Equivalents" means (i) securities issued or directly and fully
guaranteed or insured by the United States Government or any agency or
instrumentality thereof having maturities of not more than 90 days from the date
of acquisition; (ii) time deposits and certificates of deposit of the Lender or
any other domestic commercial bank having capital and surplus in excess of
$200,000,000 having maturities of not more than 90 days from the date of
acquisition; (iii) repurchase obligations with a term of not more than seven
days for underlying securities of the types described in clauses (i) and (ii)
entered into with the Lender or other bank meeting the qualifications specified
in clause (ii) above; and (iv) commercial paper rated at least A-1 or the
equivalent thereof by Standard & Poor's Ratings Group or P-1 or the equivalent
thereof by ▇▇▇▇▇'▇ Investors Service, Inc. and in either case maturing within
ninety days after the date of acquisition.
"Class" has the meaning assigned to such term in Section 1.03 hereof.
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"Closing Date" means the Business Day on which the initial Loans are
made hereunder.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, together with the regulations thereunder.
"Collateral" means, collectively, all properties (and all interests
therein) of the Loan Parties, now owned or hereinafter acquired, upon which a
Lien is purported to be created by any of the Security Documents.
"Commitments" means, collectively, the Revolving Loan Commitment and
the Working Capital Loan Commitment.
"Company" has the meaning assigned to such term in the preamble to this
Agreement.
"Company Account" means the Company's demand deposit, or checking,
non-interest bearing account maintained from time to time with the Lender (which
account on the Closing Date is identified by account # 9427718303).
"Company Business" has the meaning assigned to such term in the
PRELIMINARY STATEMENTS, above.
"Company Pledge Agreements" means, collectively, the Pledge Agreement
from each Company Pledgor to the Lender with respect to the Capital Stock of the
Company in substantially the form of Exhibit F-1 hereto, as amended,
supplemented or modified from time to time.
"Company Pledgors" means, collectively, the beneficial and record
owners of the Capital Stock of the Company, representing at least 75% of the
from time to time issued outstanding Capital Stock of the Company, and their
successors, transferees, heirs and assigns.
"Company Security Agreement" means the Security Agreement between the
Company and the Lender in substantially the form of Exhibit C-1 hereto, as
amended, supplemented or modified from time to time.
"Consent" means, with respect to each Material Authorization, such
third party consent in form and substance satisfactory to the Lender which the
Lender shall reasonably require in connection with the collateral assignment of
such Material Authorization pursuant to the applicable Security Documents.
"Consolidated Capital Expenditures" means, with respect to the Company
and its Subsidiaries and for any specified period, the aggregate amount of all
expenditures (whether paid in cash or accrued as liabilities and including,
without limitation, Capital Lease Obligations and research and development costs
incurred in such period) made by the Company and its Subsidiaries that, in
conformity with GAAP, are (or are required to be) included as additions for such
period to "property, plant or equipment" on the consolidated balance sheet of
the Company and its Subsidiaries.
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"Consolidated EBITDA" means, with respect to the Company and its
Subsidiaries and for any specified period, the total of the following (in each
case determined in accordance with GAAP on a consolidated basis and without
duplication):
(a) Consolidated Net Income for such period,
plus
(b) to the extent deducted in computing Consolidated Net
Income, the sum of (i) consolidated income tax expense of the
Company and its Subsidiaries, (ii) Consolidated Interest
Expense, (iii) consolidated depreciation and amortization
expense of the Company and its Subsidiaries, (including,
without limitation, the write-off of in-process research and
development in connection with the Caminus Acquisition and the
acquisition of the business formerly conducted by ZAI*Net),
(iv) any non-recurring extraordinary non-cash gains (or minus
non-recurring extraordinary non-cash losses), (v) any
non-recurring extraordinary cash gains (or minus non-recurring
extraordinary cash losses) agreed to by the Lender, (vi)
transaction costs and expenses incurred in connection with the
Caminus Acquisition and the acquisitions of the businesses
formerly conducted by ZAI*Net and Positron Energy Consulting,
(vii) transaction costs and expenses incurred in connection
with any Permitted Acquisition and agreed to by the Lender,
and (viii) transaction costs and expenses incurred in
connection with the negotiation, documentation and
consummation of the transactions contemplated by this
Agreement, including without limitation the Origination Fee
and legal fees and expenses, all as listed in the schedule to
be delivered pursuant to Section 4.01(k)(2) hereof,
minus
(c) to the extent added in computing Consolidated Net Income,
(i) any interest income and (ii) any Tax Reimbursement
Distribution.
Notwithstanding the foregoing, if during any period for which
Consolidated EBITDA is being determined the Company or any of its Subsidiaries
shall have consummated any Permitted Acquisition, for all purposes of this
Agreement (other than for purposes of determining the Applicable Margin),
Consolidated EBITDA shall be determined on a pro-forma basis as if such
Permitted Acquisition had been consummated on the first day of such period.
"Consolidated Fixed Charges" means, with respect to the Company and its
Subsidiaries for any specified period, the sum of the following (in each case
determined in accordance with GAAP on a consolidated basis and without
duplication): (i) all regularly scheduled payments of principal of Indebtedness
of the Company and its Subsidiaries for such period (including, without
limitation, scheduled principal payments in respect of the Revolving Loans and
the principal component of any scheduled payments in respect of Capital Leases),
plus (ii) all Consolidated Interest Expense payable in cash for such period
(whether or not actually paid), plus (iii) income and franchise taxes paid in
cash for such period, plus (iv) the aggregate amount of Tax Reimbursement
Distributions made during such period.
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"Consolidated Fixed Charges Ratio" means, as at any date of
determination thereof, the ratio of (i) Consolidated EBITDA for the four (4)
consecutive Fiscal Quarters ending on, or most recently ended prior to, such
date of determination, to (ii) Consolidated Fixed Charges for the same period of
four (4) consecutive Fiscal Quarters.
"Consolidated Funded Debt" means, as at any date of determination
thereof, the aggregate Indebtedness for borrowed money of the Company and its
Subsidiaries (on a consolidated basis) outstanding on such date, plus the
aggregate Capital Lease Obligations of the Company and its Subsidiaries on the
same date.
"Consolidated Intangibles" means, as at any date of determination
thereof, all assets of the Company and its Subsidiaries, determined on a
consolidated basis at such date, that would be classified as intangible assets
in accordance with GAAP, but in any event including, without limitation,
unamortized debt discount and expense, unamortized organization and
reorganization expense, costs in excess of the net asset value of acquired
companies, patents, trade or service marks, franchises, trade names, goodwill
and the amount of any write-up in the book value of any assets resulting from
any revaluation (other than reevaluations arising out of foreign currency
valuations in accordance with GAAP).
"Consolidated Interest Expense" means, with respect to the Company and
its Subsidiaries and for any specified period, the sum (in each case determined
in accordance with GAAP on a consolidated basis and without duplication), of all
interest in respect of Indebtedness of the Company and its Subsidiaries accrued
or capitalized for such period (whether or not actually paid during such period)
which, in accordance with the terms thereof, shall be capitalized or the payment
in respect of which shall be deferred to a later date).
"Consolidated Leverage Ratio" means, as at any date of determination
thereof, (i) Consolidated Funded Debt as at such date of determination, to (ii)
Consolidated EBITDA for the four (4) consecutive Fiscal Quarters ending on, or
most recently ended prior to, such date of determination.
"Consolidated Net Income" means, with respect to the Company and its
Subsidiaries and for any specified period, the consolidated net income (or
deficit) of the Company and its Subsidiaries for such period, as determined in
accordance with GAAP on a consolidated basis and without duplication; provided
that there shall be excluded (i) the income (or deficit) of any Person accrued
prior to the date it becomes a Subsidiary or is merged into or consolidated with
the Company or any Subsidiary, (ii) the income (or deficit) of any Person (other
than a Subsidiary) in which the Company or any Subsidiary has an ownership
interest, except to the extent that any such income has been actually received
by the Company or such Subsidiary in the form of a cash dividend or similar cash
distribution, (iii) the undistributed earnings of any Subsidiary to the extent
that the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by operation of the terms of its charter
or any agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Subsidiary, (iv) any restoration to
income of any contingency reserve, except to the extent that provision for such
reserve was made out of accrued income, (v) any aggregate net gain (but not any
aggregate net loss) during such period arising from the sale, exchange or other
disposition of capital assets (such term to include all fixed assets, whether
tangible or
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intangible, all inventory sold in conjunction with the disposition of fixed
assets and all securities), (vi) any write-up of any asset, (vii) any net gain
from the collection of the proceeds of life insurance policies, (viii) any gain
arising from the acquisition of any securities, or the extinguishment, under
GAAP, of any Indebtedness, of the Company or any Subsidiary, (ix) in the case of
a successor to the Company by consolidation or merger or as a transferee of its
assets, any earnings of the successor corporation prior to such consolidation,
merger or transfer of assets, (x) any deferred credit representing the excess of
equity in any Subsidiary at the date of acquisition over the cost of the
investment in such Subsidiary, and (xi) income and expenses arising out of
barter transactions (if any) in connection with the Company Business.
"Consolidated Senior Funded Debt" means, as at any date of
determination thereof, the aggregate principal amount of the Notes outstanding
on such date.
"Consolidated Senior Leverage Ratio" means, as at any date of
determination thereof, the ratio of (i) Consolidated Senior Funded Debt as at
such date of determination, to (ii) Consolidated EBITDA for the four (4)
consecutive Fiscal Quarters ending on, or most recently ended prior to, such
date of determination.
"Continue", "Continuation" and "Continued" refers to the continuation
pursuant to Section 3.02(c) hereof of a Eurodollar Loan from one Interest Period
to the next Interest Period.
"Contractual Obligation" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
properties is bound (including without limitation the Capitalization Documents).
"Convert", "Conversion" and "Converted" refers to a conversion pursuant
to Section 3.02(c) hereof of one Type of Loans into another Type of Loans, which
may be accompanied by the transfer by a Lender (at its sole discretion) of a
Loan from one Applicable Lending Office to another.
"Default" means any of the events specified in Section 8.01 hereof,
whether or not any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Default Rate" means a rate per annum equal to four percent (4.00%)
plus the Base Rate in effect from time to time.
"Deferred Earn-Out Amount" shall mean the earn-out amount of
approximately $2,200,000, which amount was contributed by the Investor Group to
the Company for payment to Rooney as required in accordance with the terms of
the ZAI*Net Acquisition Documents, but which was used by the Company, with
Rooney's consent, as partial payment for the Caminus Repurchase.
"Disposal" has the meaning assigned to such term in the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.).
"Dollars" and "$" mean lawful money of the United States of America.
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"Eligible Accounts" means, as to the Company and the Subsidiary
Guarantors, at a particular date, the aggregate face amount of the Accounts of
the Company and the Subsidiary Guarantors, in each case less (without
duplication) the aggregate amount of all general reserves, limits and deductions
with respect to such Accounts and less the aggregate amount of all returns,
discounts, claims, rebates, offsets, credits, charges and allowances (whether
issued, owing, granted or outstanding); provided that, no individual Account
shall be deemed to be an Eligible Account if:
(a) the Company or any Subsidiary does not have legal and
valid title to the Account; or
(b) the Account is not the valid, binding and legally
enforceable obligation of the account debtor (subject, as to
enforceability, only to (i) applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws at the time in
effect affecting the enforceability of creditors' rights
generally, and (ii) judicial discretion in connection with the
remedy of specific performance and other equitable remedies);
or
(c) the Account arises out of a sale made or service rendered
by the Company or any Subsidiary to an Affiliate of the
Company or such Subsidiary; or
(d) the Account or any portion thereof is unpaid more than 120
days after the original invoice date; or
(e) such Account, when aggregated with all other Accounts of
the same account debtor (or any Affiliate thereof), exceeds
50% in face value of all Accounts of the Company and its
Subsidiaries then outstanding, to the extent of such excess;
or
(f)(i) the account debtor for such Account is also a creditor
of the Company or any Subsidiary, to the extent of the amount
owed by the Company or such Subsidiary to the account debtor,
(ii) the Account is subject to any claim on the part of the
account debtor disputing liability under such Account in whole
or in part, to the extent of the amount of such dispute, or
(iii) the Account otherwise is (or is reasonably likely to
become) subject to any right of setoff or any counterclaim,
claim or defense by the account debtor, to the extent of the
amount of such setoff or counterclaim, claim or defense; or
(g) the account debtor for such Account has commenced a
voluntary case under the federal bankruptcy laws, as now
constituted or hereafter amended, or made an assignment for
the benefit of creditors or if a decree or order for relief
has been entered by a court having jurisdiction in the
premises in respect of the account debtor in an involuntary
case under the federal bankruptcy laws, as now constituted or
hereafter amended, or if any other petition or other
application for relief under the federal bankruptcy laws has
been filed by or against the account debtor, or if the account
debtor has failed, suspended business, ceased to be
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solvent, or consented to or suffered a receiver, trustee,
liquidator or custodian to be appointed for it or for all or a
significant portion of its assets or affairs; or
(h) the Administrative Agent does not have a valid and
perfected first priority security interest in such Account
(subject only to the Liens, if any, permitted by Section 7.01
hereof); or
(i) the sale to the account debtor for such Account is on a
consignment, sale on approval, guaranteed sale or
sale-and-return basis or pursuant to any written agreement
requiring repurchase or return (other than return arrangements
in the ordinary course of business consistent with the past
business practices of the Company); or
(j) such Account is from an account debtor (or any Affiliate
thereof) and fifty percent (50%) or more, in face amount, of
other Accounts from either such account debtor or any
Affiliate thereof are due or unpaid for more than 120 days
after the original invoice date; or
(k) fifty percent (50%) or more, in face amount, of other
Accounts from the same account debtor for such Account are not
deemed Eligible Accounts Receivable hereunder; or
(l) the account debtor for such Account is a foreign
Governmental Authority; or
(m) such Account is an Account a security interest in which
would be subject to the Federal Assignment of Claims Act of
1940, as amended (31 U.S.C. Section 3727 et seq.) [unless (i)
such Account, together with all other Eligible Accounts a
security interest in which would be subject to such Act, does
not exceed [5%] in face value of all Eligible Accounts of the
Company and its Subsidiaries then outstanding, or (ii) the
Company has assigned the Account to the Administrative Agent
in compliance with the provisions of such Act]; or
(n) the account debtor for such Account is outside the United
States or incorporated in or conducting substantially all of
its business in any jurisdiction located outside the United
States, unless the sale is (i) on letter of credit or sight
draft, guaranty or acceptance terms, consistent with past
business practices of the Company, not to exceed 5% in face
value of all Eligible Accounts of the Company and its
Subsidiaries then outstanding or (ii) such Account is
otherwise approved by and reasonably acceptable to the
Administrative Agent; or
(o) the Administrative Agent determines in good faith in
accordance with its internal credit policies that such Account
may not be paid by reason of the account debtor's financial
inability to pay; or
(p) the goods giving rise to such Account have not been
shipped or the services giving rise to such Account have not
been performed by the Company or any Subsidiary or the Account
otherwise does not represent a final sale; or
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(q) such Account does not comply in all material respects with
all applicable legal requirements, including, where
applicable, the Federal Consumer Credit Protection Act, the
Federal Truth in Lending Act and Regulation Z of the Board of
Governors of the Federal Reserve System, in each case as
amended.
"Environment" means any water or water vapor, any land, including land
surface or subsurface, air, fish, wildlife, flora, fauna, biota and all other
natural resources.
"Environmental Condition" means any state of facts that exist at any
time at, on, in or under the Collateral and/or Real Estate which relates to or
affects the compliance of the Collateral and/or Real Estate with all
Environmental Permits and Environmental Laws.
"Environmental Laws" means in respect of any jurisdiction, U.S. or
foreign, all environmental, land use, zoning, health, chemical use, safety and
sanitation laws, statutes, ordinances and codes relating to the protection,
preservation or remediation of the Environment and/or governing the use,
storage, treatment, generation, transportation, processing, handling, production
or disposal of Hazardous Substances and the rules, regulations, written and
published policies, guidelines, decisions, orders and directives of federal,
state and local governmental agencies and authorities with respect thereto.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Company or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Substances, (c) exposure to any Hazardous Substances,
(d) the release or threatened release of any Hazardous Substances into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Environmental Permits" means all permits, licenses, approvals,
authorizations, consents or registrations required by any applicable
Environmental Law in connection with the ownership, construction, equipping, use
and/or operation of the Collateral and/or the Real Estate regarding the
management, storage, treatment, generation, transportation, processing,
handling, production or disposal of Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and the rulings
issued thereunder.
"ERISA Affiliate" means any corporation or trade or business which is a
member of the same controlled group of corporations (within the meaning of
Section 414(b) of the Code) as the Company or is a trade or business (whether or
not incorporated) which is under common control (within the meaning of Section
414(c) of the Code) with the Company.
"Estimated Tax Amount" means for any Fiscal Year, the Company's Tax
Amount for such Fiscal Year, as reasonably estimated from time to time by the
Company's management committee taking into account amounts shown on IRS Form
1065 filed by the Company and similar state or local forms filed by the Company
for the preceding Fiscal Year and such other adjustments as in the judgment of
the management committee of the Company are necessary or
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17
appropriate (including, without limitation, the seasonality of the Companys'
business) to reflect the estimated operations of the Company for the applicable
Fiscal Year.
"Eurocurrency Reserve Requirements" means, for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements in effect on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board of Governors of the Federal Reserve System or other
Governmental Authority having jurisdiction with respect thereto) dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in Regulation D of such Board) maintained by a
member bank of such System.
"Eurodollar Base Rate" means, with respect to each day during each
Interest Period pertaining to a Eurodollar Loan, the rate per annum (rounded
upward, if necessary, to the nearest 1/32 of one percent) as determined on the
basis of the offered rates for deposits in U.S. dollars, for a period of time
comparable to such Eurodollar Loan, which appears on the Telerate Page 3750 as
of 11:00 a.m. London time on the day that is two Business Days preceding the
first day of such Eurodollar Loan; provided, however, if the rate described
above does not appear on the Telerate System on any applicable interest
determination date, the Eurodollar Base Rate shall be the rate (rounded upwards
as described above, if necessary) for deposits in Dollars for a period
substantially equal to the Interest Period on the Reuters Page "LIBOR" (or such
other page as may replace the LIBOR Page on that service for the purpose of
displaying such rates), as of 11:00 a.m. (London Time), on the day that is two
(2) Business Days prior to the beginning of such Interest Period. If both the
Telerate and Reuters system are unavailable, then the rate of that date will be
determined on the basis of the offered rates for deposits in U.S. Dollars for a
period of time comparable to such Eurodollar Loan which are offered by four
major banks in the London interbank market at approximately 11:00 a.m. London
time, on the day that is two (2) Business Days preceding the first day of such
Eurodollar Loan as selected by the Lender. The principal London office of each
of the four major London banks will be requested to provide a quotation of its
U.S. Dollar deposit offered rate. If at least two such quotations are provided,
the rate for that date will be the arithmetic mean of the quotations. If fewer
than two quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in U.S. Dollars to leading
European banks for a period of time comparable to such Eurodollar Loan offered
by major banks in New York City at approximately 11:00 a.m. New York City time,
on the day that is two Business Days preceding the first day of such Eurodollar
Loan.
"Eurodollar Loans" means Loans the interest rates on which are
determined on the basis of rates referred to in the definition of "Eurodollar
Rate" in this Section 1.01.
"Eurodollar Notice" means a request for Conversion into and/or
Continuation of Eurodollar Loans executed by a Responsible Officer of the
Company and in substantially the form of Exhibit B-2 hereto.
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"Eurodollar Rate" means, with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upward, if necessary, to the
nearest 1/32nd of 1%):
Eurodollar Base Rate
-----------------------------
1.00 - Eurocurrency Reserve
Requirements
"Eurodollar Tranche" means, collectively, the Eurodollar Loans Interest
Periods with respect to all of which begin on the same date and end on the same
later date (whether or not such Eurodollar Loans shall originally have been made
on the same day).
"Event of Default" means any of the events specified in Section 8.01
hereof, provided that any requirement for the giving of notice, the lapse of
time, or both, or any other condition, has been satisfied.
"Fiscal Quarter" means a three-month period ending on (or nearest to)
the last day of March, June, September and December of each year.
"Fiscal Year" means a twelve-month period ending on (or nearest to)
December 31 of each year.
"GAAP" means consistently applied generally accepted accounting
principles in the United States of America in effect from time to time (as set
forth in the opinions and pronouncements of the Accounting Principles Board and
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board, or in such other
statements by such other entities as may be in general use by significant
segments of the accounting profession, which are applicable to the circumstances
as of the date of determination.
"GFI" means GFI Two LLC (formerly known as GFI Energy Ventures LLC), a
California limited liability company, and its successors.
"Governmental Authority" means any nation or government, any province,
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including without limitation, all applicable federal,
provincial and municipal agencies, ministries, departments, inspectors and
officials, and any corporation or other entity owned or controlled (through
stock or capital ownership or otherwise) by any of the foregoing, whether
domestic or foreign.
"Guarantee Obligations" means, as to any Person (without duplication)
any obligation of such Person guaranteeing or intended to guarantee any
Indebtedness, leases, dividends or other obligations ("primary obligations") of
any other Person (the "primary obligor") in any manner, whether directly or
indirectly, including, without limitation, any obligation of such Person,
whether or not contingent, (i) to purchase any such primary obligation or any
property constituting direct or indirect security therefor, (ii) to advance or
supply funds (A) for
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the purchase or payment of any such primary obligation or (B) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the owner
of any such primary obligation of the ability of the primary obligor to make
payment of such primary obligation, or (iv) otherwise to assure or hold harmless
the owner of such primary obligation against loss in respect thereof; provided,
however, that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business and
amounts that are permitted by Section 7.07 hereof. The amount of any Guarantee
Obligation shall be deemed to be an amount equal to the maximum amount that such
Person may be obligated to expend pursuant to the terms of such Guarantee
Obligation or, if such Guarantee Obligation is not so limited, the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith.
"Hazardous Substance" means any containment, pollutant or hazardous
substance likely to cause harm or degradation to the environment or risk to
human health or safety, and without restricting the generality of the foregoing,
includes without limitation, any pollutant, containment, waste, hazardous waste,
toxic substance or dangerous good which is defined or identified in any
Environmental Law or Industry Standard, or which is present in the environment
in such quantity or state that it contravenes any Environmental Law.
"Indebtedness" means, as to any Person, (i) indebtedness, liabilities
or obligations for borrowed money or for the deferred purchase price of property
or services (excluding accounts payable incurred in the ordinary course of
business); (ii) obligations as lessee under Capital Leases; (iii) current
liabilities in respect of unfunded vested benefits under any Plan or
Multi-Employer Plan; (iv) reimbursement obligations and other liabilities under
letters of credit or similar instruments issued for the account of such Person;
(v) obligations, indebtedness or other liabilities of others secured by any Lien
on property owned by such Person, whether or not such obligations, indebtedness
or other liabilities have been assumed by, or are a personal liability of, such
Person; and (vi) Guarantee Obligations of such Person.
"Intellectual Property" means, collectively, all copyrights, patents,
trademarks, trade names, service marks, processes, inventions and formulae
applied for, issued or licensed to or owned by the Company and/or any
Subsidiary, including without limitation those listed in Schedule 2 hereto.
"Interest Period" means, with respect to any Eurodollar Loan, each
period commencing on the date such Eurodollar Loan is made or Converted from a
Base Rate Loan or, in the case of a Continuation, on the last day of the next
preceding Interest Period for such Eurodollar Loan and, in each case, ending on
the numerically corresponding day in the first, second, third or sixth calendar
month thereafter, as the Company may select as provided in Section 3.02(c)
hereof or, with respect to a borrowing of such Eurodollar Loan, as the Company
has selected pursuant to Section 2.03(a) hereof, except that each Interest
Period that commences on the last Business Day of a calendar month (or on any
day for which there is no numerically corresponding day in the appropriate
subsequent calendar month) shall end on the last Business Day of the appropriate
subsequent calendar month. Notwithstanding anything in the foregoing or
otherwise in this
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Agreement to the contrary, (i) no Interest Period for any Eurodollar Loan may
end after the stated maturity date of the applicable Note; (ii) no Interest
Period for any Revolving Loan may commence before and end after any Revolving
Loan Termination Date unless, after giving effect thereto, the aggregate
principal amount of the Revolving Loans having Interest Periods that end after
such Revolving Loan Termination Date shall be equal to or less than the
aggregate principal amount of the Revolving Loans scheduled to be outstanding
after giving effect to the payments of principal required to be made on such
Revolving Loan Termination Date; (iii) no Interest Period for any Working
Capital Loan may commence before and end after any Working Capital Loan
Termination Date unless, after giving effect thereto, the aggregate principal
amount of the Working Capital Loans having Interest Periods that end after such
Working Capital Loan Termination Date shall be equal to or less than the
aggregate principal amount of the Working Capital Loans scheduled to be
outstanding after giving effect to the payments of principal required to be made
on such Working Capital Loan Termination Date; (iv) each Interest Period that
would otherwise end on a day which is not a Business Day shall end on the next
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the next preceding Business Day); (v)
notwithstanding clauses (i), (ii) and (iii) above, no Interest Period shall have
a duration of less than one month and, if the Interest Period for any Eurodollar
Loan would otherwise be a shorter period, such Eurodollar Loan shall not be
available hereunder for such period; (vi) the Company shall select Interest
Periods so as not to require a payment or prepayment of any Eurodollar Loan
during an Interest Period for such Loan; and (vii) all borrowings, Conversions
and Continuations and all selections of Interest Periods under this Agreement
shall be made pursuant to such elections so that, after giving effect thereto,
no more than five different Eurodollar Tranches shall be in effect at any one
time.
"Investment" has the meaning assigned to such term in Section 7.05
hereof.
"Investor Group" shall mean, collectively, GFI, OCM Caminus Investment,
Inc., RIT Capital Partners plc, Durham Cam, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇.
"Leases" means any now existing or hereafter acquired leases or
subleases, easements, grants or similar instruments under which the Company or
any Subsidiary has the right to use Real Estate, including without limitation
those listed on Schedule 5 hereto.
"Lien" means any mortgage, deed of trust, pledge, security interest,
hypothecation, assignment (including, without limitation, easements, rights of
way, zoning restrictions, restrictive covenants and the like), deposit
arrangement intended as a collateral device, encumbrance, lien (statutory or
other, including without limitation environmental superliens), or other security
agreement or charge or encumbrance or preferential arrangement of any kind or
nature whatsoever (including, without limitation, any conditional sale or other
title retention agreement, any financing lease having substantially the same
economic effect as any of the foregoing, and the filing of any financing
statement under the UCC or comparable law of any jurisdiction to evidence any of
the foregoing).
"Loan Documents" means, collectively, this Agreement, the Notes, the
Security Documents, the Subsidiary Guarantees, the Management Subordination
Agreement and each Consent.
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"Loan Parties" means, collectively, the Company and the Subsidiary
Guarantors.
"Loans" means, collectively, the Revolving Loans and the Working
Capital Loans.
"Management Fees" means all fees and other amounts paid (or payable) to
GFI pursuant to Section 6.5.2 of the Operating Agreement.
"Management Subordination Agreement" means the Subordination Agreement
among the Management Company, the Company and the Administrative Agent, in
substantially the form of Exhibit J hereto, as amended, supplemented or modified
from time to time.
"Margin Stock" means "margin stock" within the meaning of Regulations U
and X.
"Material Adverse Effect" means a material adverse effect on (i) the
business, operations, property, condition (financial or otherwise) or prospects
of the Company and its Subsidiaries, (ii) the ability of the Company and its
Subsidiaries to perform their obligations under this Agreement, any of the other
Loan Documents or any of the Capitalization Documents, or (iii) the validity or
enforceability of this Agreement or any of the other Loan Documents or the
rights or remedies of the Lender or the Lender hereunder or thereunder.
"Material Authorization" means, collectively, all licenses, permits and
authorizations of the Company and/or any of its Subsidiaries (other than the
Intellectual Property) which are material to the conduct of the Company
Business, including without limitation those listed in Part A of Schedule 2
hereto and in existence on the date hereof.
"Maximum Working Capital Borrowing Commitment" means at any time the
lesser of (i) the Lender's Working Capital Loan Commitment in effect at such
time or (ii) the Borrowing Base.
"Mortgages" means, collectively, with respect to any Real Estate of the
Company or any Subsidiary and designated by the Lender, a mortgage, deed of
trust, leasehold mortgage, assignment or similar security agreement from the
Company or such Subsidiary in favor of the Lender, in form and substance
satisfactory to the Lender, and appropriate for the jurisdiction in which such
Real Estate is located, each as amended, supplemented or modified from time to
time.
"Multi-Employer Plan" means a Plan which is a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA with respect to which any Loan Party or
any of their respective ERISA Affiliates is or has been required to contribute
or otherwise may have liability.
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22
"Net Proceeds" means the following:
(a) with respect to the sale or other disposition of any asset
by the Company or any of its Subsidiaries (including, without
limitation, in connection with any sale-leaseback or as a
result of any casualty or condemnation), the excess, if any,
of (i) the aggregate amount received in cash (including any
cash received by way of deferred payment pursuant to a note
receivable, other non-cash consideration or otherwise, but
only as and when such cash is so received) in connection with
such sale or other disposition over (ii) the sum of (A) the
principal amount of any Indebtedness which is secured by any
such asset (other than Indebtedness assumed by the purchaser
of such asset) or which is required to be, and is, repaid in
connection with the sale or other disposition thereof (other
than Indebtedness outstanding hereunder), (B) the reasonable
fees, commissions and other out-of-pocket expenses incurred by
the Company or such Subsidiary in connection with such sale or
other disposition, and (C) federal and state taxes incurred in
connection with such sale or other disposition;
(b) with respect to the sale or other disposition of any
Capital Stock by the Company or any of its Subsidiaries, the
excess of (i) the aggregate amount received in cash (including
any cash received by way of deferred payment pursuant to a
note receivable, other non-cash consideration or otherwise,
but only as and when such cash is so received) in connection
with such sale or other disposition over (ii) the reasonable
fees, commissions and other out-of-pocket expenses incurred by
the Company or such Subsidiary in connection with such sale or
other disposition; and
(c) with respect to the incurrence of any additional
Indebtedness by the Company or any of its Subsidiaries (other
than Indebtedness permitted pursuant to Section 7.02 hereof),
the excess of (i) the aggregate amount of such Indebtedness
over (ii) the reasonable fees, commissions and other
out-of-pocket expenses incurred by the Company or such
Subsidiary in connection with incurring such Indebtedness.
"Non-Excluded Taxes" has the meaning assigned to such term in Section
3.10(a) hereof.
"Notes" means, collectively, the Revolving Note and the Working Capital
Note.
"Obligations" means the unpaid principal amount of, and interest
(including, without limitation, interest accruing after the maturity of the
Loans and interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to the Company, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) on the Notes and all other obligations and
liabilities of the Company to the Lender, whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, the Notes,
the Subsidiary Guarantees, the Security Documents, and any other Loan Document
and any other document made, delivered or given in connection therewith or
herewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel to the
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Lender, or to the Lender and affiliates of the Lender, that are required to be
paid by the Company pursuant to the terms of this Agreement) or otherwise.
"Operating Agreement" means the Limited Liability Company Agreement of
the Company, dated as of May 12, 1998, among the Company and the members from
time to time party thereto, subject to Section 7.15 hereof, as amended,
supplemented or modified from time to time.
"Origination Fee" has the meaning assigned to such term in Section 3.01
hereof.
"Participant" has the meaning assigned to such term in Section 10.05(c)
hereof.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Perfection Certificate" has the meaning assigned to such term in
Section 4.01(b) hereof.
"Permitted Acquisition" has the meaning assigned to such term in
Section 7.05 hereof.
"Person" means an individual, partnership, corporation, business trust,
limited liability company, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority, or other entity of whatever
nature.
"Plan" means any defined benefit pension plan covered by Title IV of
ERISA, the funding requirements of which: (i) were the responsibility of the
Company or an ERISA Affiliate at any time within the five years immediately
preceding the date hereof, (ii) are currently the responsibility of the Company
or an ERISA Affiliate, or (iii) hereafter become the responsibility of the
Company or an ERISA Affiliate, including any such plans as may have been, or may
hereafter be, terminated for whatever reason.
"Pledge Agreements" means, collectively, the Company Pledge
Agreement[s] and the Subsidiary Pledge Agreements.
"Principal Office" means the principal office of the Lender located, on
the date hereof, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Pro Forma Balance Sheet" has the meaning assigned to such term in
Section 5.01(b) hereof.
"Projections" has the meaning assigned to such term in Section 5.01(c)
hereof.
"Public Offering" shall mean a firm underwritten public offering of
common stock registered on form ▇-▇, ▇-▇, or S-3 under the Securities Act
of 1933, as amended, by a nationally recognized investment banking firm and
after giving effect to which the issuer shall be qualified for listing on the
NASDAQ National Market, the American Stock Exchange or the New York Stock
Exchange.
"Quarterly Compliance Certificate" has the meaning assigned thereto in
Section 6.07(d)(2) hereof.
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"Quarterly Dates" means the last Business Day of March, June, September
and December in each year, the first of which shall be the first such day after
the Closing Date.
"Quarterly Estimated Tax Amount" means for any Fiscal Quarter of a
Fiscal Year of the Company, the product of (A) 1/4 in the case of the first
Fiscal Quarter of a Fiscal Year, 1/2 in the case of the second Fiscal Quarter
of a Fiscal Year, 3/4 in the case of the third Fiscal Quarter of a Fiscal Year
and 1 in the case of the fourth Fiscal Quarter of a Fiscal Year and (B) the
aggregate Estimated Tax Amount for such Fiscal Year.
"Real Estate" means the real estate now owned or leased or hereafter
acquired or leased by the Company or any of its Subsidiaries, all easements and
similar rights, all fixtures and personal property used in conjunction therewith
and the rights of Company or such Subsidiary to leases, rents and profits with
respect thereto, including without limitation the Real Estate listed on Schedule
5 hereto.
"Refinanced Lender" means OCM Principal Opportunities Fund L.P., a
limited partnership organized under the laws of Delaware, and its successors.
"Refinanced Loan Amount" means, collectively, all amounts of any nature
whatsoever (including, without limitation, principal, interest, fees, contingent
fees and reimbursable expenses) owed by the Company and/or any Subsidiary
Guarantor to the Refinanced Lender on the Closing Date (but immediately before
giving effect to the initial Loans hereunder) pursuant to the Refinanced Loan
Documents, whether or not such amounts then shall be due; provided that the
Refinanced Loan Amount on the Closing Date shall not exceed $1,300,000.
"Refinanced Loan Documents" means, collectively, any and all loan
agreements, promissory notes, debentures, security agreements, guarantees,
pledge agreements, mortgages, assignments, warrants, capital appreciation rights
and related documents and instruments, in each case heretofore delivered by the
Company and/or any Subsidiary Guarantor to or for the benefit of the Refinanced
Lender.
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Reportable Event" has the meaning set forth in Section 4043(b) of
ERISA (other than a Reportable Event as to which the provision of 30 days'
notice to the PBGC is waived under applicable regulations), or is the occurrence
of any of the events described in Section 4068(f) or 4063(a) or ERISA.
"Requirement of Law" means, as to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination 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 or to which such Person or
any of its property is subject.
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"Responsible Officer" means the president, or with respect to financial
matters, the chief financial officer of any Person and, in each case, any other
individual or entity possessing, directly or indirectly, similar authority and
power by law or otherwise.
"Revolving Loans" means, collectively, the revolving credit loans
referred to in Section 2.01(a) hereof, which may be Base Rate Loans and/or
Eurodollar Loans.
"Revolving Loan Commitment" means the obligation of the Lender to make
Revolving Loans in an aggregate amount at any one time outstanding up to (but
not exceeding) the amount set forth opposite the name of the Lender on Schedule
A hereto under the caption "Revolving Loan Commitment", as such amount may be
reduced from time to time pursuant to Section 3.03 and/or Section 3.04 hereof.
The aggregate principal amount of all Revolving Loan Commitments is Two Million
Five Hundred Thousand Dollars ($2,500,000).
"Revolving Loan Commitment Period" means the period from (and
including) the Closing Date to (but excluding) the Revolving Loan Termination
Date.
"Revolving Note" has the meaning assigned to such term in Section
2.04(a) hereof.
"Revolving Loan Termination Date" means May 31, 2001 or such earlier
date on which the Revolving Loan Commitments shall terminate as provided herein.
"Rooney" means Rooney Software, L.L.C., a Delaware limited liability
company, and its successors.
"Scheduled Earn-Out Payment" means the earn-out payment in the amount
of approximately $2,200,000 required to be made to Rooney by the Company, in
accordance with the terms of the Zai*Net Acquisition Documents.
"Security Agreements" means, collectively, the Company Security
Agreement and the Subsidiary Security Agreements.
"Security Documents" means, collectively, the Security Agreements, the
Subsidiary Guarantees, the Pledge Agreements and the Mortgages.
"Seller" means the owner of the Capital Stock to be acquired, or the
entity the assets and properties of which are to be acquired, by the Company or
any Subsidiary in connection with a Permitted Acquisition.
"SS&C" means SS&C Technologies, Inc., a Delaware corporation, and its
successors and assigns.
"SS&C Documents" means, collectively, each purchase and option
agreement, distributor agreement, license agreement, letter agreements and
letter amendments to any of the foregoing, including without limitation the
Purchase and Option Agreement, dated December 31, 1998, between the Company and
SS&C, each Distributor Agreement, dated May 12, 1998, between the Company and
SS&C, the Distributor Agreement, dated December 31, 1998, between the Company
and SS&C, the Letter Amendment dated March 29, 1999, between the Company and
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SS&C relating to the December 31, 1998 Distributor Agreement and the Letter
Amendment dated March 29, 1999, between the Company and SS&C relating to the
December 31, 1998 Purchase and Option Agreement, in each case heretofore
delivered by the Company to or for the benefit of SS&C in connection with the
SS&C Transactions, and listed or Schedule 2 hereto, in each case as amended,
supplemented or modified from time to time (subject to Section 7.15 hereof).
"SS&C Option" means, the option granted by the Company to SS&C to
purchase shares of Series B Membership Interests in the Company pursuant to the
SS&C Documents.
"SS&C Transactions" means the various transactions contemplated by and
between the Company and SS&C pursuant to the SS&C Documents.
"Subsidiary" means, for any Person, any corporation, partnership,
limited liability company or other entity of which at least a majority of the
securities or other ownership interests having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions of such corporation, partnership, limited liability
company or other entity (irrespective of whether or not at the time securities
or other ownership interests of any other class or classes of such corporation,
partnership, limited liability company or other entity shall have or might have
voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned or controlled by such Person or one or more
Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person. Unless otherwise qualified, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a direct or indirect Subsidiary
or Subsidiaries of the Company (including without limitation the Subsidiary
Guarantors).
"Subsidiary Guarantees" means, collectively, the Guarantee from each
Subsidiary Guarantor of the Company in favor of the Lender in substantially the
form of Exhibit E-2 hereto, as amended, supplemented or modified from time to
time.
"Subsidiary Guarantors" means, collectively, Caminus Energy Limited, an
English corporation, and (ii) each Subsidiary of the Company that becomes a
"Subsidiary Guarantor" after the date hereof pursuant to Section 6.10(a) hereof,
and their respective successors and assigns.
"Subsidiary Pledge Agreement" means, collectively, each Pledge
Agreement to the Lender with respect to the Capital Stock of each Subsidiary
Guarantor, in substantially the form of Exhibit F-2 hereto (or such other form
as may be required under the laws of a foreign jurisdiction), as amended,
supplemented or modified from time to time.
"Subsidiary Security Agreements" means, collectively, the Security
Agreement between each Subsidiary Guarantor and the Lender in substantially the
form of Exhibit C-2 hereto (or such other form as may be required under the laws
of a foreign jurisdiction), as amended, supplemented or modified from time to
time.
"Tax Amount" means for any Fiscal Year, the federal, state, and local
income taxes which would be payable by the Company if the Company were taxed for
such taxable year at the lesser of (a) 50% or (b) the highest marginal federal,
state and local income tax rate applicable to
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any member (or the direct or indirect owners of any member that is a
flow-through entity for federal income tax purposes), or such other rate as the
management committee of the Company shall determine in its reasonable
discretion, on the Company's taxable income for the Fiscal Year (computed as if
the Company had elected to carry forward all loss and credit carryovers and
taking into account the character of any loss and credit carry forward as a
capital or ordinary loss). The amounts in respect of tax withholding on payments
to or from the Company for which the members (or owners directly or indirectly
of such members) are credited under applicable tax law shall be credited against
payments of the Tax Amount to such members. The Company's Tax Amount shall be
determined initially on the basis of figures set forth on IRS Form 1065 filed by
the Company and the similar state or local forms filed by the Company but shall
be subject to subsequent adjustment pursuant to audit, litigation, settlement,
amended return or the like, and accordingly, subsequent Quarterly Estimated Tax
Amounts payable to the members shall be increased or decreased accordingly.
"Tax Reimbursement Distributions" has the meaning assigned to such term
in Section 7.06 hereof.
"Termination Event" means (i) a Reportable Event, or (ii) the
initiation of any action by the Company, any ERISA Affiliate or any Plan
fiduciary to terminate a Plan or the treatment of an amendment to an ERISA Plan
as a termination under ERISA if the termination resulting from such action would
be other than a standard termination, or (iii) the institution of proceedings by
the PBGC under Section 4042 of ERISA to terminate a Plan or to appoint a trustee
to administer any Plan if the termination resulting from such action would be
other than a standard termination.
"UCC" means the Uniform Commercial Code, as in effect in any applicable
United States jurisdiction.
"Unfunded Benefit Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all benefit
liabilities under such Plan as defined in Section 4001(a)(16) of ERISA, exceeds
(ii) the fair market value of all Plan assets allocable to such benefits, all
determined as of the then most recent valuation date for such Plan (on the basis
of reasonable assumptions under such Plan).
"Wholly-Owned Subsidiary" means, with respect to any Person, any
corporation, partnership or other entity of which all of the equity securities
or other ownership interests (other than, in the case of a corporation,
directors' qualifying shares) are directly or indirectly owned or controlled by
such Person or one or more Wholly-Owned Subsidiaries of such Person or by such
Person and one or more Subsidiaries of such Person.
"Working Capital Loans" means, collectively, the working capital loans
referred to in Section 2.01(b) hereof, which may be Base Rate Loans and/or
Eurodollar Loans.
"Working Capital Loan Commitment" means the obligation of the Lender to
make Working Capital Loans in an aggregate amount at any one time outstanding up
to (but not exceeding) the amount set forth opposite the name of the Lender on
Schedule A hereto under the caption "Working Capital Loan Commitment", as such
amount may be reduced from time to
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time pursuant to Section 3.03 and/or Section 3.04 hereof. The aggregate
principal amount of all Working Capital Loan Commitments is Two Million Five
Hundred Thousand Dollars ($2,500,000).
"Working Capital Loan Commitment Period" means the period from (and
including) the Closing Date to (but excluding) the Working Capital Loan
Termination Date.
"Working Capital Loan Termination Date" means the date immediately
preceding the first anniversary of the Closing Date or such earlier date on
which the Working Capital Loan Commitments shall terminate as provided herein,
provided, that, in the event the Lender shall, at its sole and absolute
discretion, extend the Working Capital Loan Termination Date for an additional
period of one year, not to exceed May 31, 2001 in any case, Working Capital Loan
Termination Date shall be deemed to mean the last day of such extended one year
period.
"Working Capital Notes" has the meaning assigned to such term in
Section 2.04(a) hereof.
"Zai*Net" means Zai*Net Software L.P., a Delaware limited partnership
that was merged with and into the Company on March 2, 1999.
"Zai*Net Acquisition Documents" means, collectively, any and all
purchase and sale agreements, promissory notes and related documents and
instruments, including, without limitation, documents and agreement relating to
earn-out payments to be made by the Company to Rooney, and the merger of Zai*Net
with and into the Company, in each case heretofore delivered by the Company to
or for the benefit of Zai*Net, and listed on Schedule 2 hereto, in each case as
amended, supplemented or modified from time to time (subject to Section 7.15
hereof).
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise
specified therein, all terms defined in this Agreement shall have the defined
meanings when used in the Notes or any certificate or other document made or
delivered pursuant hereto.
(b) As used herein and in the Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms relating to the
Company and the Subsidiaries not defined in Section 1.01 and accounting terms
partly defined in Section 1.01, to the extent not defined, shall have the
respective meanings given to them under GAAP.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section, schedule and
exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 1.03. TYPES AND CLASSES OF LOANS. Loans hereunder are
distinguished by "Class" and by "Type". The "Class" of a Loan (or of a
Commitment to make a Loan) refers to whether such Loan is a Revolving Loan or a
Working Capital Loan, each of which constitutes a
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Class. The "Type" of a Loan refers to whether such Loan is a Base Rate Loan or a
Eurodollar Loan, each of which constitutes a Type. Loans may be identified by
both Class and Type.
ARTICLE II.
LOANS
SECTION 2.01. LOANS. (a) Revolving Loans. Subject to the terms and
conditions of this Agreement, the Lender hereby agrees to make revolving credit
loans (collectively, the "Revolving Loans", and each a "Revolving Loan") to the
Company during the Revolving Loan Commitment Period in an aggregate principal
amount at any one time outstanding which does not exceed the amount of the
Lender's Revolving Loan Commitment as in effect from time to time. Subject to
the terms and conditions of this Agreement, during the Revolving Loan Commitment
Period the Company may (x) borrow, repay and reborrow Revolving Loans by means
of Base Rate Loans and/or Eurodollar Loans, and (y) in accordance with (but
subject to the conditions of) Section 3.02(c) hereof, Convert Revolving Loans of
one Type into Revolving Loans of another Type or Continue Revolving Loans of one
Type as Revolving Loans of the same Type.
(b) Working Capital Loans. Subject to the terms and conditions of this
Agreement, the Lender hereby agrees to make working capital loans (collectively,
the "Working Capital Loans", and each a "Working Capital Loan") to the Company
during the Working Capital Loan Commitment Period in an aggregate principal
amount at any one time outstanding which does not exceed the lesser of (i) the
amount of the Company's Borrowing Base then in effect and (ii) the amount of the
Lender's Working Capital Loan Commitment. Subject to the terms and conditions of
this Agreement, during the Working Capital Loan Commitment Period the Company
may (x) borrow, repay and reborrow Working Capital Loans by means of Base Rate
Loans and/or Eurodollar Loans, and (y) in accordance with (but subject to the
conditions of) Section 3.02(c) hereof, Convert Working Capital Loans of one Type
into Working Capital Loans of another Type or Continue Working Capital Loans of
one Type as Working Capital Loans of the same Type. For purposes of calculating
the Borrowing Base to determine the maximum amount of Working Capital Loans
which at any time may be borrowed hereunder, the Borrowing Base shall be
calculated based on the most recent Borrowing Base Certificate provided to the
Lender pursuant to Section 4.02(b) or 6.07(d)(1) hereof.
SECTION 2.02. USE OF PROCEEDS. (a) Revolving Loans. The proceeds of the
initial Revolving Loans to be made hereunder may be used by the Company only for
the complete repayment and discharge in full on the Closing Date of the Deferred
Earn-Out Amount and repayment of a portion of the Refinanced Loan Amount.
(b) Working Capital Loans. The proceeds of the Working Capital Loans to
be made hereunder may be used by the Company only for (i) the complete repayment
and discharge in full on the Closing Date of the remaining portion of the
Refinanced Loan Amount (after the application of the Revolving Loan proceeds),
and (ii) general working capital purposes in connection with the Company
Business.
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SECTION 2.03. PROCEDURES FOR BORROWINGS AND DISBURSEMENTS. (a) Whenever
the Company desires that the Lender make Loans pursuant to Section 2.01 hereof,
the Company shall give the Lender a Borrowing Notice (which shall have been duly
completed, as appropriate, and executed by a Responsible Officer of the Company
and, upon delivery thereof to the Lender, shall be deemed irrevocable and
binding on the Company), in the case of a proposed Eurodollar Loan, at or before
10:00 a.m. New York time at least three (3) Business Days or, in the case of a
proposed Base Rate Loan, at or before 10:00 a.m. New York time at least one (1)
Business Day prior to the proposed Borrowing Date specifying (i) the proposed
Borrowing Date and the aggregate amount of the respective Loans requested to be
borrowed, (ii) the use of the proceeds of the respective Loans, (iii) the
respective amounts of the respective Loans to be borrowed as Base Rate Loans and
Eurodollar Loans (which amount, as to Eurodollar Loans of each Class, shall be
at least equal to $100,000 or in multiples of $50,000 in excess thereof), and
(iv) in the case of Eurodollar Loans, the duration of the first Interest
Period(s) applicable thereto. The giving of each Borrowing Notice by the Company
shall be deemed a representation and warranty by the Company that the applicable
conditions set forth in Sections, 4.01 and 4.02 hereof are satisfied as of the
date of such notice. The Company shall be permitted to borrow Loans hereunder no
more frequently than four times in any calendar month.
(b) Subject to the terms and conditions hereof, not later than 12:00
noon New York time on the proposed Borrowing Date specified in each Borrowing
Notice pursuant to Section 2.03(a) hereof, the Lender shall make available the
amount of the Loan(s) to the Company by depositing the same, in immediately
available funds, to the Company Account.
SECTION 2.04. NOTES. (a) The Revolving Loan to be made by the Lender
shall be evidenced by a single promissory note of the Company in substantially
the form of Exhibit A-1 annexed hereto, duly completed, dated the Closing Date
and payable to the Lender and in a principal amount equal to the Revolving Loan
Commitment of the Lender (collectively, with all promissory notes delivered in
substitution or exchange therefor and as the same shall be amended, supplemented
or modified from time to time, the "Revolving Note").
(b) The Working Capital Loans to be made by the Lender shall be
evidenced by a single promissory note of the Company in substantially the form
of Exhibit A-2 annexed hereto, duly completed, dated the Closing Date and
payable to the Lender and in a principal amount equal to the Working Capital
Loan Commitment of the Lender (collectively, with all promissory notes delivered
in substitution or exchange therefor and as the same shall be amended,
supplemented or modified from time to time, the "Working Capital Note").
(c) Each Lender is hereby authorized to record the date, Type and
amount of each Loan made by the Lender, each continuation thereof, each
conversion of all or a portion thereof to another Type, the date and amount of
each payment or prepayment of principal thereof and, in the case of Eurodollar
Loans, the length of each Interest Period and Eurodollar Rate with respect
thereto, on its internal books and records and/or on the schedule annexed to and
constituting a part of each Note of the Lender, and any such recordation on such
schedule shall constitute prima facie evidence of the accuracy of the
information so recorded; provided that the failure by the Lender to make any
such recordation shall not affect the obligations of the Company under this
Agreement or the Notes.
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(d) Upon receipt of an affidavit of an officer of the Lender as to the
loss, theft, destruction or mutilation of any Note, certificate evidencing any
Pledged Stock or any other Security Document which is not of public record, and,
in the case of any such loss, theft, destruction or mutilation, upon
cancellation of such Notes, certificate evidencing any Pledged Stock or other
Security Document, the Company will issue, in lieu thereof, replacement notes,
stock certificates or other Security Documents in the same principal amount
thereof and otherwise of like tenor.
ARTICLE III.
GENERAL PROVISIONS
SECTION 3.01. FEES. As a condition to the making of the Loans
hereunder, the Company promises to pay to the Lender, on the Closing Date, a
non-refundable, fully-earned fee in the amount of $75,000.00, less $25,000 paid
in advance by the Company to the Lender prior to the Closing Date (the
"Origination Fee").
SECTION 3.02. INTEREST. (a) Subject to Section 3.05 hereof, the Company
hereby promises to pay to the Lender interest on the unpaid principal amount of
each Loan made by the Lender for the period from and including the date of such
Loan to, but excluding, the date such Loan shall be paid in full, at the
following rates per annum:
(i) during such periods as such Loan is a Base Rate
Loan, the Base Rate (as in effect from time to time)
applicable to such Base Rate Loan; and
(ii) during such periods as such Loan is a Eurodollar
Loan, for each Interest Period relating thereto, the
Adjusted Eurodollar Rate applicable to such
Eurodollar Loan.
(b) All interest accrued on each Loan as specified in Section 3.02(a)
hereof shall be payable in arrears as follows:
(i) in the case of a Base Rate Loan, on the last day
of each calendar month;
(ii) in the case of a Eurodollar Loan, on the last
day of each Interest Period therefor, provided that
if such Interest Period is longer than three months,
then interest on such Eurodollar Loan shall be
payable on each day which is one month after the
first day of such Interest Period and with a final
interest payment on the last day of such Interest
Period; and
(iii) in the case of any Loan, upon the payment or
prepayment thereof or the Conversion of such Loan
into a Loan of another Type (but only on the
principal amount so paid, prepaid or Converted).
(c) Subject to Sections 3.06, 3.07 and 3.08 hereof, the Company shall
have the right to Convert Loans of one Type into Loans of another Type or
Continue Eurodollar Loans as such,
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at any time or from time to time, subject to receipt by the Lender of Eurodollar
Notice from the Company, duly executed by a Responsible Officer thereof, not
later than 10 a.m. New York time at least three (3) Business Days (in case of
Conversion into or Continuation of Eurodollar Loans) or at least one (1)
Business Day (in case of Conversion into Base Rate Loans) prior to the date of
such Conversion or Continuation, which notice shall be irrevocable and shall
specify (i) the amount, Class and Type of each Loan to be Converted or
Continued, (ii) the date of Conversion or Continuation (which shall be a
Business Day), (iii) in case of Conversion into or Continuation of a Eurodollar
Loan, the duration of the Interest Period and the Loans to which such Interest
Period is to relate. Notwithstanding the foregoing to the contrary, (A) a
Eurodollar Loan may be Converted into a Base Rate Loan and Continued as a
Eurodollar Loan only on the last day of the then applicable Interest Period for
such Eurodollar Loan, (B) each Conversion shall be in an amount at least equal
to $100,000 or in multiples of $50,000 in excess thereof (Conversions into Loans
of different Types or, in the case of Eurodollar Loans, having different
Interest Periods at the same time hereunder shall be deemed separate Conversions
for purposes of the foregoing, one for each Type or Interest Period), and (C)
without limiting the rights and remedies of the Lender under Article VIII
hereof, in the event that a Default shall have occurred and be continuing, the
Lender may (and at the request of the Lender shall) suspend the right of the
Company to Convert any Base Rate Loan into a Eurodollar Loan, or to Continue any
Eurodollar Loan as such, in which event all Eurodollar Loans shall be Converted
(on the last day(s) of the respective Interest Periods therefor) into Base Rate
Loans. In the event that the Company fails to (x) submit timely notice to the
Lender prior to the expiration of an Interest Period for a Eurodollar Loan as
provided in this Section 3.02(c), such Eurodollar Loan will be automatically
Converted into a Base Rate Loan on the last day of the then current Interest
Period for such Eurodollar Loan, or (y) select the Class and Type of Loan or the
duration of any Interest Period for any Eurodollar Loan within the time period
and otherwise as provided in this Section 3.02(c), such Loan, if outstanding as
a Eurodollar Loan, will be automatically Converted into a Base Rate Loan on the
last day of the then current Interest Period for such Eurodollar Loan or, if
outstanding as a Base Rate Loan, will remain as a Base Rate Loan.
SECTION 3.03. PRINCIPAL PAYMENTS; REDUCTION OF COMMITMENTS; AND
TERMINATION OF COMMITMENTS. (a) The aggregate amount of the Revolving Loan
Commitments shall be automatically reduced on each Quarterly Date (commencing on
December 31, 1999) by an amount equal to $250,000; provided that the principal
installment due on the Revolving Loan Termination Date shall in any event be in
an amount equal to the then aggregate outstanding principal amount of the
Revolving Loans. Without limiting any other rights of the Lender or any
obligations of the Company under this Agreement or the other Loan Documents, in
the event that the aggregate outstanding amount of all Revolving Loans at any
time during the Revolving Loan Commitment Period shall exceed the Lender's
Revolving Loan Commitment, such excess shall be paid to the Lender as mandatory
prepayments as provided in Section 3.04(e) hereof.
(b) The Company hereby promises to pay to the Lender the principal of
the Working Capital Notes on the Working Capital Loan Termination Date. Without
limiting any other rights of the Lender or any obligations of the Company under
this Agreement or the other Loan Documents, in the event that the aggregate
outstanding amount of all Working Capital Loans at any time during the Working
Capital Loan Commitment Period shall exceed (i) the lesser of (i) the Working
Capital Loan Commitment of the Lender, or (ii) the Borrowing Base, such excess
shall be paid to the Lender as mandatory prepayments pursuant to Section 3.04(d)
hereof.
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(c) The Company shall have the right at any time or from time to time
to reduce all Revolving Loan Commitments and/or all Working Capital Loans
subject to receipt by the Lender of a written notice from the Company not later
than 10:00 a.m. New York time at least three (3) Business days prior to the date
of such reduction, which notice shall be irrevocable and shall specify the
applicable Commitments and the amount of such reduction (such amount to be at
least equal to $100,000) and the effective date of such reduction. The
Commitments once reduced may not be reinstated.
(d) The Company shall have the right, at any time or from time to time,
so long as no Revolving Loans are outstanding, to terminate all Revolving Loan
Commitments, subject to receipt by the Lender of a written notice from the
Company not later than 10:00 a.m. New York time at least five (5) Business days
prior to the date of such termination, which notice shall be irrevocable and
shall specify the effective date of such termination. The Revolving Loan
Commitments once terminated may not be reinstated.
(e) The Company shall have the right, at any time or from time to time,
so long as no Working Capital Loans are outstanding, to terminate all Working
Capital Loan Commitments, subject to receipt by the Lender of a written notice
from the Company not later than 10:00 a.m. New York time at least five (5)
Business days prior to the date of such termination, which notice shall be
irrevocable and shall specify the effective date of such termination. The
Working Capital Loan Commitments once terminated may not be reinstated.
SECTION 3.04. OPTIONAL AND MANDATORY PREPAYMENTS. (a) Subject to
Section 3.09 hereof, the Company shall have the right to prepay Loans from time
to time, without premium or penalty, subject to receipt by the Lender of written
notice from the Company not later than 10 a.m. New York time at least three (3)
Business Days prior to the date of such prepayment, which notice shall be
irrevocable and shall specify (i) the amount, Class and Type of each Loan to be
prepaid, and (ii) the date of such prepayment which shall be a Business Day (and
the amount so specified shall then become due and payable hereunder on such
date, together with all interest accrued thereon to, but excluding, such date).
Notwithstanding the foregoing to the contrary, (A) a Eurodollar Loan may be
prepaid only on the last day of the then applicable Interest Period for such
Eurodollar Loan, (B) each partial prepayment of the Loans shall be in an amount
at least equal to $100,000 or in multiples of $100,000 in excess thereof
(prepayments of Loans of different Classes or Types or, in the case of
Eurodollar Loans, having different Interest Periods at the same time hereunder
shall be deemed separate prepayments for purposes of the foregoing, one for each
Class, Type or Interest Period), and (C) each prepayment shall be applied
against the Loans as provided in Section 3.04(e) hereof.
(b) If any Capital Stock of the Company is sold by the Company in a
Public Offering, then concurrently with the receipt by the Company of Net
Proceeds from such Public Offering, the Company shall be required to prepay the
Loans in full.
(c) Concurrently with the receipt by the Company or any Subsidiary of
Net Proceeds from any of the transactions described below (to the extent
permitted by the Lender), the Company shall make a prepayment of the Loans as
follows (in each case, to be applied against the Loans as provided in Section
3.04(e) hereof):
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(i) If such Net Proceeds arise from the sale, lease,
assignment, exchange or other disposition of any assets of the
Company or any Subsidiary (including, without limitation, as a
result of any casualty or condemnation but not including sales
or dispositions of assets permitted pursuant to Section
7.03(ii) hereof), the Company shall make a prepayment of the
Loans in an amount equal to 50% of the amount of such Net
Proceeds.
(ii) If such Net Proceeds arise from the issuance and sale of
any Capital Stock of the Company or any Subsidiary (other than
in connection with a Permitted Acquisition or the exercise by
SS&C of the SS&C Option), the Company shall make a prepayment
of the Loans in an amount equal to 50% of the amount of such
Net Proceeds.
(iii) If such Net Proceeds arise from the sale of the
Company's Capital Stock to SS&C as a result of SS&C exercising
its SS&C Option, the Company shall make a prepayment of the
Loans in an amount equal to 50% of the amount of such Net
Proceeds.
(iv) If such Net Proceeds arise from the incurrence of any
Indebtedness by the Company or any Subsidiary (other than
Indebtedness permitted pursuant to Section 7.02 hereof), the
Company shall make a prepayment of the Loans in an amount
equal to 50% of the amount of such Net Proceeds.
Notwithstanding the foregoing, nothing contained in this Section
3.04(c) shall be deemed to limit the Company's obligation to obtain the consent
of the Lender, or to imply the Lender's consent to any of the transactions not
permitted hereunder.
(d) If at any time the aggregate outstanding amount of Working Capital
Loans exceeds the lesser of the Working Capital Loan Commitment or the Borrowing
Base at such time, the Company shall be obligated to prepay the Working Capital
Loans to the extent of such excess, together with accrued interest thereon, and
such prepayment shall be applied against the Working Capital Loans as specified
in Section 3.04(e) hereof. Any such required prepayment shall be made within
three (3) Business Days after demand therefor by the Lender.
(e) Each prepayment pursuant to Section 3.04(c) hereof shall be applied
first against the Revolving Loans until paid in full, and second against the
Working Capital Loans until paid in full, and the Revolving Loan Commitments and
Working Capital Loan Commitments (in the case of prepayment prior to the Working
Capital Loan Termination Date), as the case may be, shall automatically and
concurrently with such prepayment be reduced by an amount equal to the principal
amount so applied against the applicable Loans. Each prepayment of the Revolving
Loans and Working Capital Loans shall be applied ratably against the applicable
Commitments held by the Lender. Each prepayment of any Loan pursuant to Section
3.04(a) hereof shall be applied against the Class and Type as selected by the
Company (subject to any restrictions herein) and without reduction of the
applicable Commitments (unless otherwise notified by the Company pursuant to
Section 3.03(d) hereof). Each prepayment pursuant to Sections 3.04(c) and/or
3.04(d) hereof, unless the Lender has received written instructions from the
Company to the contrary, shall be applied first ratably against the applicable
Class of Loans outstanding on
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such date of prepayment as Base Rate Loans, and second ratably against the
applicable Class of Loans then outstanding as Eurodollar Loans.
SECTION 3.05. LATE CHARGES AND DEFAULT INTEREST. (a) Notwithstanding
anything in Section 3.02 to the contrary, the Company hereby promises to pay to
the Lender a "late charge" at a rate per annum equal to the Default Rate on any
amount of principal of, or interest on, any Loan made by the Lender and on any
fee or other amount payable by the Company hereunder to the Lender which shall
not be paid in full when due (whether at stated maturity, by acceleration,
prepayment or otherwise), for the period from (and including) the due date
thereof to (but excluding) the date the same is paid in full; provided that no
amounts shall accrue under this Section 3.05(a) for any period during which the
Default Rate is in effect pursuant to Section 3.05(b) hereof. Any late charges
pursuant to this Section 3.05(a) shall be payable upon demand.
(b) Notwithstanding anything in Section 3.02 to the contrary, if an
Event of Default shall occur, then, for so long as such Event of Default shall
continue, upon notice from the Lender to the Company, the Company shall pay to
the Lender interest at the Default Rate on the principal amount of all of the
Loans hereunder for the period from (and including) the date on which such
notice shall be given to (but excluding) the date on which such Event of Default
shall have been cured or waived (it being acknowledged by the Company that (i)
any such cure shall be to the satisfaction of the Lender, (ii) the Lender shall
be under no obligation to waive such Event of Default, and (iii) the imposition
of the Default Rate shall not be construed as a waiver or limitation of any
rights or remedies of the Lender arising out of the Event of Default). Any
additional interest pursuant to this Section 3.05(b) shall be payable upon
demand.
(c) If the amount of any principal of, or interest on, any Loan made by
the Lender is not paid in full within ten (10) days after the same is due, the
Company shall pay to the Lender a late fee equal to five percent (5%) of the
required payment.
(d) The Company agrees that any additional interest and late charges
referred to in this Section 3.05 may be deducted from any amounts paid to the
Lender before such amounts are applied to interest on or principal of the Notes.
SECTION 3.06. REQUIREMENTS OF LAW. (a) If the adoption of or any change
in any Requirement of Law or in the interpretation or application thereof or
compliance by the Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof (i) shall subject the Lender to any tax of any
kind whatsoever with respect to this Agreement, any Note, any Eurodollar Loan
made by the Lender, or change the basis of taxation of payments to the Lender in
respect thereof (except for Non-Excluded Taxes covered by Section 3.10 and
changes in the rate of tax on the overall net income of the Lender); (ii) shall
impose, modify or hold applicable any reserve, special deposit, compulsory loan
or similar requirement (not already included in the calculation of the
Eurodollar Rate) 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 the Lender which is not otherwise
included in the determination of the Eurodollar Rate hereunder; or (iii) shall
impose on the Lender any other condition; and the result of any of the foregoing
is to increase the cost to the Lender of making, Converting into, Continuing or
maintaining Eurodollar Loans or to reduce any amount receivable hereunder in
respect thereof,
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then, in any such case, the Company shall promptly pay the Lender (as the case
may be) such additional amount or amounts as will compensate the Lender for such
increased cost or reduced amount receivable.
(b) If the Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by the Lender or any
corporation controlling the Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on the Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which the Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration the Lender's or such corporation's
policies with respect to capital adequacy), then from time to time, the Company
shall promptly pay to the Lender such additional amount or amounts as will
compensate the Lender for such reduction.
(c) If the Lender becomes entitled to claim any additional amounts
pursuant to this Section 3.06, it shall, no later than 360 days after acquiring
knowledge thereof, notify the Company of the event by reason of which it has
become so entitled. A certificate setting forth in reasonable detail any
additional amounts payable pursuant to this Section 3.06 submitted by the Lender
to the Company shall be conclusive in the absence of manifest error.
(d) The agreements in this Section 3.06 shall survive the termination
of this Agreement and the payment of the Loans and all other amounts payable
hereunder.
SECTION 3.07. ILLEGALITY. Notwithstanding any other provision herein,
if the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof shall make it unlawful for the Lender to
make or maintain Eurodollar Loans as contemplated by this Agreement, (i) the
commitment of the Lender hereunder to make Eurodollar Loans, Continue Eurodollar
Loans as such and Convert Base Rate Loans to Eurodollar Loans shall forthwith be
canceled (without affecting the Lender's obligations to make Base Rate Loans
hereunder) and (ii) the Lender loans then outstanding as Eurodollar Loans, if
any, shall be Converted automatically to Base Rate Loans on the respective last
days of the then current Interest Periods with respect to such Loans or within
such earlier period as required by law, and any Borrowing Notice given pursuant
to Section 2.03 thereafter shall automatically be deemed a Borrowing Notice for
Base Rate Loans. If any such Conversion of a Eurodollar Loan occurs on a day
which is not the last day of the then current Interest Period with respect
thereto, the Company shall pay to the Lender such amounts, if any, as may be
required pursuant to Section 3.09 hereof.
SECTION 3.08. LIMITATION ON TYPES OF LOANS. Anything herein to the
contrary notwithstanding, if, on or prior to the determination of any Eurodollar
Rate for any Interest Period, (i) the Lender determines, which determination
shall be conclusive absent manifest error, that quotations or offerings of
interest rates for the relevant deposits referred to in the definition of
"Eurodollar Rate" in Section 1.01 hereof are not being offered or made available
in the relevant amounts or for the relevant maturities for purposes of
determining rates of interest for Eurodollar Loans as provided herein, or (ii)
the Lender determines (which determination shall be conclusive absent manifest
error) that the relevant rates of interest referred to in the definition of
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"Eurodollar Rate" in Section 1.01 hereof upon the basis of which the rate of
interest for Eurodollar Loans for such Interest Period is to be determined, are
not likely to cover adequately the cost to the Lender of making or maintaining
Eurodollar Loans for such Interest Period, then the Lender shall give telecopy
or telephonic notice thereof to the Company as soon as practicable thereafter.
If such notice is given (A) any Eurodollar Loans, as the case may be, requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans and (B) any Loans that were to have been Converted to or Continued as
Eurodollar Loans on the first day of such Interest Period shall be Converted to
or Continued as Base Rate Loans. Until such notice has been withdrawn by the
Lender, no further Eurodollar Loans, as the case may be, shall be made or
continued as such, nor shall the Company have the right to convert Loans to
Eurodollar Loans, as the case may be.
SECTION 3.09. COMPENSATION. The Company shall pay to the Lender, upon
request of the Lender, such amount or amounts as shall be sufficient (in the
reasonable opinion of the Lender) to compensate it for any loss, cost, or
expense incurred as a result of: (i) any payment of a Eurodollar Loan on a date
other than the last day of the Interest Period for such Loan; (ii) any failure
by the Company to borrow a Eurodollar Loan on the date specified by the
Borrowing Notice; (iii) any failure by the Company to pay a Eurodollar Loan on
the date for payment specified in any Company's written notice. Without limiting
the foregoing, the Company shall pay to Lender a "yield maintenance fee" in an
amount computed as follows: The current rate for United States Treasury
securities (bills on a discounted basis shall be converted to a bond equivalent)
with a maturity date closest to the term chosen pursuant to the Fixed Rate
Election (as defined below) as to which the prepayment is made, shall be
subtracted from the Eurodollar Rate in effect at the time of prepayment. If the
result is zero or a negative number, there shall be no yield maintenance fee. If
the result is a positive number, then the resulting percentage shall be
multiplied by the amount of the principal balance being prepaid. The resulting
amount shall be divided by 360 and multiplied by the number of days remaining in
the term chosen pursuant to the Fixed Rate Election as to which the prepayment
is made. Said amount shall be reduced to present value calculated by using the
above referenced United States Treasury securities rate and the number of days
remaining in the term chosen pursuant to the Fixed Rate Election as to which
prepayment is made. The resulting amount shall be the yield maintenance fee due
to the Lender upon the payment of a Eurodollar Loan. Each reference in this
paragraph to "Fixed Rate Election" shall mean the election by the Company of the
Eurodollar Rate. If by reason of an Event of Default, Lender elects to declare
the Notes to be immediately due and payable, then any yield maintenance fee with
respect to a Eurodollar Loan shall become due and payable in the same manner as
though the Company had exercised such right of prepayment. This covenant shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder, and a Lender's determination of compensation
hereunder shall, absent manifest error, be final, conclusive and binding on the
Company.
SECTION 3.10. TAXES. [(a)] All payments made by the Company under this
Agreement and any Notes shall be made free and clear of, and without deduction
or withholding for or on account of, any present or future income, stamp or
other taxes, levies, imposts, duties, charges, fees, deductions or withholdings,
now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority excluding net income taxes and franchise taxes (imposed
in lieu of net income taxes) imposed on the Lender as a result of a present or
former connection between the Lender and the jurisdiction of the Governmental
Authority imposing
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such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any Note). If any such non-excluded taxes, levies, imposts,
duties, charges, fees deductions or withholdings ("Non-Excluded Taxes") are
required to be withheld from any amounts payable to the Lender hereunder or
under any Note, the amounts so payable to the Lender shall be increased to the
extent necessary to yield to the Lender (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement. Whenever any Non-Excluded Taxes are
payable by the Company, as promptly as possible thereafter the Company shall
send to the Lender for its own account a certified copy of an original official
receipt received by the Company showing payment thereof. If the Company fails to
pay any Non-Excluded Taxes when due to the appropriate taxing authority or fails
to remit to the Lender the required receipts or other required documentary
evidence, the Company shall indemnify the Lender for any incremental taxes,
interest or penalties that may become payable by the Lender as a result of any
such failure. The agreements in this Section 3.10(a) shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(b) The Lender agrees (to the extent consistent with its internal
policies and legal and regulatory restrictions) to designate a different
Applicable Lending Office if such designation would avoid or reduce the amount
of Non-Excluded Taxes; provided, however, that such designation need not be made
if it would result in any additional costs, expenses or risks to the Lender (as
determined by the Lender in its sole discretion) that are not reimbursed by the
Company pursuant hereto or would, in the Lender's sole judgment, be otherwise
materially disadvantageous to the Lender.
SECTION 3.11. COMPUTATIONS. Interest on all Eurodollar Loans shall be
computed on the basis of a year of 360 days and actual days elapsed, and
interest on all Base Rate Loans and the Revolving Loan Commitment Fee and
Working Capital Loan Commitment Fee shall be computed on the basis of a year of
365 or 366 days (as the case may be), in each case including any time extended
by reason of payments falling due on Saturdays, Sundays or holidays. Any change
in the interest rate on the Notes resulting from a change in the Base Rate shall
become effective as of the opening of business on the day on which such change
in the Base Rate shall become effective.
SECTION 3.12. PAYMENTS. (a) Except to the extent otherwise provided
herein, all payments of principal, interest and other amounts to be made by the
Company under this Agreement and the Notes, and, except to the extent otherwise
provided therein, all payments to be made or deposited by the Company under any
other Loan Document, shall be made or deposited in Dollars, in immediately
available funds, without deduction, set-off or counterclaim, to the Company
Account, not later than 12:00 noon New York time on the date on which such
payment shall become due (each such payment made after such time on such due
date to be deemed to have been made on the next succeeding Business Day), and
the Company hereby irrevocably grants to the Lender the right to debit such
Company Account for all payments to be made by the Company under this Agreement,
the Notes and the other Loan Documents.
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(b) The Company hereby irrevocably authorizes the Lender (but the
Lender shall not be obligated) to charge, when due, the amount of any principal,
interest or other amount payable by the Company hereunder against funds in any
deposit or checking account of the Company with the Lender (including, without
limitation the Company Account), without the requirement of prior notice to the
Company or the Lender (provided that the Lender agrees to submit a statement to
the Company reflecting each such charge within fifteen (15) days thereafter).
(c) [Intentionally Omitted]
(d) Each payment made to the Lender under this Agreement or any Note
shall be remitted in immediately available funds for the account of the Lender's
Applicable Lending Office for the Loan or other obligation in respect of which
such payment is made.
(e) If the due date of any payment under this Agreement or any Note
would otherwise fall on a day that is not a Business Day, such due date shall be
extended to the next succeeding Business Day, and interest shall be payable on
any principal so extended for the period of such extension.
SECTION 3.13. LENDING OFFICES. The Loans of each Type made by the
Lender shall be made and maintained at the Lender's Applicable Lending Office
for Loans of such Type.
SECTION 3.14. SET-OFFS, ETC. The Company hereby grants to the Lender, a
lien, security interest and right of setoff as security for all liabilities and
obligations to the Lender, whether now existing or hereafter arising, upon and
against all deposits, credits, collateral and property, now or hereafter in the
possession, custody, safekeeping or control of the Lender or any entity under
the control of Fleet Financial Group, Inc., or in transit to any of them. At any
time, without demand or notice, the Lender may set off the same or any part
thereof and apply the same to any liability or obligation of the Company and any
Subsidiary Guarantor even though unmatured and regardless of the adequacy of any
other Collateral securing the Loans. ANY AND ALL RIGHTS TO REQUIRE THE LENDER TO
EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER COLLATERAL WHICH
SECURES THE LOANS, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH
DEPOSITS, CREDITS OR OTHER PROPERTY OF THE COMPANY OR ANY SUBSIDIARY GUARANTOR,
ARE HEREBY KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVED.
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ARTICLE IV.
CONDITIONS PRECEDENT
SECTION 4.01. CONDITIONS PRECEDENT TO THE REVOLVING LOAN. The obligation of the
Lender to make the Revolving Loan hereunder is subject to the receipt by the
Lender of the following (in case of documentation, such documentation to be in
form and substance satisfactory to the Lender, and in such number of original
copies as the Lender shall have requested):
(a) Loan Documents.
(a)(1) Revolving Note. The Revolving Note, duly completed, executed and
delivered.
(a)(2) Working Capital Note. The Working Capital Note, duly completed,
executed and delivered.
(a)(3) Company Security Agreement. The Company Security Agreement, duly
executed and delivered by the Company. In addition, the Company shall have taken
such other action (including delivering to the Lender, for filing, appropriately
completed and duly executed UCC financing statements and forms to be filed with
the United States Patent and Trademark Office and such other statements or forms
which may be necessary or required under any other applicable statute or
regulation outside of the United States) as may be necessary or, in the opinion
of the Lender, desirable to perfect the security interests purported to be
executed by the Company Security Agreement.
(a)(4) Subsidiary Security Agreements. The Subsidiary Security
Agreement, duly executed and delivered by each Subsidiary Guarantor. In
addition, each Subsidiary Guarantor shall have taken such other action
(including delivering to the Lender, for filing, appropriately completed and
duly executed UCC financing statements and forms to be filed with the United
States Patent and Trademark Office and such other statements or forms which may
be necessary or required under any other applicable statute or regulation
outside of the United States) as may be necessary or, in the opinion of the
Lender, desirable to perfect the security interests purported to be created by
the Subsidiary Security Agreement.
(a)(5) Subsidiary Guarantee. The Subsidiary Guarantee, duly executed
and delivered by each Subsidiary Guarantor.
(a)(6) Company Pledge Agreements. The Company Pledge Agreements, duly
executed and delivered by the Company Pledgors holding at least a majority of
the issued and outstanding Capital Stock of the Company.
(a)(7) Subsidiary Pledge Agreements. The Subsidiary Pledge
Agreement[s], duly executed and delivered by the Company and its Subsidiaries,
as the case may be, together with stock certificates in respect of the Pledged
Stock (as defined in the respective Subsidiary Pledge Agreement[s]), and undated
stock powers executed in blank.
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(a)(8) Management Subordination Agreement. The Subordination Agreement,
duly executed and delivered by GFI.
(b) Perfection Certificate. A certificate of the Company, dated the
Closing Date, substantially in the form of Exhibit H, with appropriate
insertions and attachments (the "Perfection Certificate"), executed by the
President or any Vice President and the Secretary or any Assistant Secretary of
the Company.
(c) Legal Opinions. An opinion of (i) Irell & ▇▇▇▇▇▇▇ LLP in
substantially the form of Exhibit I-1 hereto, and (ii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, special
U.K. counsel to the Lender, in substantially the form of Exhibit I-2 hereto.
(d) Corporate Action.
(d)(1) Company. Certified copies of the articles of organization and
operating agreement of the Company and certified copies of the resolutions of
its management committee and members authorizing the execution, delivery and
performance of the Loan Documents and the Capitalization Documents to which it
is, or shall become, a party, all certified by its Secretary.
(d)(2) Subsidiary Guarantors. Certified copies of the articles of
incorporation and by-laws of each Subsidiary Guarantor and certified copies of
the resolutions of its board of directors and shareholders authorizing the
execution, delivery and performance of the Loan Documents and the Capitalization
Documents to which it is, or shall become, a party, all certified by its
Secretary.
(e) Incumbency. A certificate from a Responsible Officer of each Person
in (d)(1) and (d)(2) above certifying the incumbency and specimen signature of
each officer of such Person authorized to execute the Loan Documents to which
such Person is, or shall become, a party.
(f) Insurance. Certificates of insurance evidencing the existence of
all insurance required to be maintained pursuant to Section 6.04 hereof,
together with certified copies of the applicable insurance policies, and the
designation of the Lender as loss payee and additional insured thereunder.
(g) Lien Searches and Good Standing Certificates.
(g)(1) Lien Searches. Appropriate UCC, tax and judgment and other lien
and title searches of public records with respect to the Loan Parties.
(g)(2) Certificates of Good Standing. A good standing certificate from
each jurisdiction in which each Loan Party conducts business, maintains property
or otherwise is licensed or authorized to do business.
(h) Solvency Certificate. A certificate of a Responsible Officer of the
Company, to the effect that, as of the Closing Date and after giving effect to
the consummation of the extension of the Revolving Loan and the initial Working
Capital Loans hereunder, if any, and the other transactions contemplated hereby,
(i) the aggregate value of all assets of the Company and
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its Subsidiaries at their present fair saleable value (i.e., the amount which
may be realized within a reasonable time, considered to be six months to one
year, either through collection or sale at the regular market value, conceiving
the latter as the amount which could be obtained for the property in question,
as part of a going concern, within such period by a capable and diligent
businessman from an interested buyer who is willing to purchase under ordinary
selling conditions), exceeds the amount of all the debts and liabilities
(including contingent, subordinated, unmatured and unliquidated liabilities,
valuing contingent or unliquidated liabilities at their reasonable probable
value) of the Company and its Subsidiaries, (ii) the Company and its
Subsidiaries will not have an unreasonably small capital with which to conduct
their business as contemplated to be conducted, and (iii) the Company and its
Subsidiaries will have sufficient cash flow to enable them to pay their debts as
they mature. Such certificate shall in addition state that the conclusions
specified in clauses (i), (ii) and (iii) above, and that the financial
projections and underlying assumptions contained in such analyses were at the
time made, and on the Closing Date are, fair and reasonable and accurately
computed in all material respects.
(i) Financial Matters.
(i)(1) Pro Forma Balance Sheet. The Pro Forma Balance Sheet of the
Company and its Subsidiaries as at the date specified in Section 5.01(b) hereof.
(i)(2) Projections. The Projections of the Company and its Subsidiaries
for the respective periods specified in Section 5.01(c) hereof.
(i)(3) Financial Statements - Company. The financial statements
(including all reports, letters and certificates) of the Company and its
Subsidiaries specified in Section 5.01(a) hereof.
(j) No Judgment and Litigation. Evidence that (i) there exists no
judgment, order, injunction or other restraint issued or filed which prohibits
the entering by any Loan Party into any of the Loan Documents or the
Capitalization Documents to which it is, or will be, a party, and (ii) no
action, suit, litigation or similar proceeding at law or in equity by or before
any court or Governmental Authority exists or is threatened with respect to the
transactions contemplated hereby, by the other Loan Documents or the
Capitalization Documents.
(k) Fees, Expenses, etc.
(k)(1) Origination Fee. Evidence that the Company shall have paid to
the Lender the Origination Fee.
(k)(2) Other Transaction Expenses & Itemization. An itemization of all
transaction expenses (to the extent known or, if not known, as can at the time
best be estimated) to be incurred by the Company and its Subsidiaries on or
about the Closing Date in respect of the Loans and the other transactions
contemplated hereby, including, without limitation, all brokers' commissions,
lawyers', accountants' and consultants' fees and expenses, all investment
advisory and placement fees, and any other nonrecurring expenses incurred in
connection with the transactions contemplated hereby (but specifically excluding
the Origination Fee) and evidence that the Company shall have paid the
reasonable fees and expenses of counsel to the Lender and all filing and
recordation fees, taxes, appraisal fees, title insurance and title review fees
and
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expenses and other expenses incurred by the Lender in connection with the
transactions contemplated hereby.
(l) Discharge of Debt
(l)(1) Discharge of Refinanced Loan Amount. Evidence that, concurrently
with the making of the Revolving Loan and any initial Working Capital Loans
hereunder, the Refinanced Loan Amount shall have been repaid and discharged in
full and all commitments under the Refinanced Loan Documents shall have been
terminated. In addition, the Lender shall have received (i) copies of all
releases, termination and payoff letters and/or agreements from the Refinanced
Lender in favor of the Company, and (ii) such termination statements, mortgage
releases and other instruments, in each case in proper form for recording, as
the Lender shall deem necessary to release and terminate of record all Liens
securing such Refinanced Loan Amount.
(l)(2) Discharge of Deferred Earn-Out Amount. Evidence that,
concurrently with the making of the Revolving Loan and any initial Working
Capital Loans hereunder, the Deferred Earn-Out Amount shall have been repaid and
discharged in full. In addition, the Lender shall have received such instruments
and certificates as it deems necessary as evidence of the discharge of the
Deferred Earn-Out Amount.
(m) Funding Instructions.
(m)(1) Borrowing Notice. A Borrowing Notice with respect to the Loans.
(m)(2) Payment Instructions. Irrevocable written instructions from the
Company to disburse from the Company Account, upon receipt of the proceeds of
the Loans to be made by the Lender on the Closing Date, such amounts to such
Persons for the purpose of discharging the Refinanced Loan Amount and the
Deferred Earn-Out Amount which are payable on the Closing Date.
(n) No Change. There shall not have occurred any change, or development
or event involving a prospective change, which in either case in the opinion of
the Lender could reasonably be expected to have a Material Adverse Effect.
(o) No Adverse Information. The Lender shall not have become aware of
any previously undisclosed materially adverse information with respect to (i)
the business, assets, operations, condition (financial or otherwise) or
prospects of the Company or any of its Subsidiaries, (ii) the ability of any
Loan Party to perform its obligations under the Loan Documents, or (iii) the
rights and remedies of the Lender.
(p) Filings. All filings and other actions required to create and
perfect a first priority security interest to the Lender, pursuant to the
Security Documents shall have been duly made or taken.
(q) No Default; Representations and Warranties; Bring Down Certificate.
Immediately before and after giving effect to the making of the Revolving Loan
(i) no Default hereunder shall have occurred and be continuing; and (ii) the
representations and warranties
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made by the Company in Article V hereof shall be true in all respects on and as
of the date of the making of the Revolving Loan with the same force and effect
as if made on and as of such date (or, if any such representation or warranty is
expressly stated to have been made as of a specific date, as of such specific
date); and the Lender shall have received a certificate of a Responsible Officer
of the Company certifying as to the accuracy of the foregoing.
(r) Caminus Acquisition Documents; Zai*Net Acquisition Documents.
Certified copies of the Caminus Acquisition Documents, and the Zai*Net
Acquisition Documents.
(s) Refinanced Loan Documents; SS&C Documents. Certified copies of the
Refinanced Loan Documents and the SS&C Documents.
(t) Scheduled Earn-Out Payment. Evidence satisfactory to the Lender
that the Scheduled Earn-Out Payment is the irrevocable and unconditional
obligation of the Investor Group, and that the Investor Group shall have no
recourse against the Company for such Scheduled Earn-Out Payment.
(u) Consolidated Leverage Ratio. Evidence that the Consolidated
Leverage Ratio of the Company and its Subsidiaries for the four (4) consecutive
Fiscal Quarters of the Company ending on, or most recently ended prior to,
December 31, 1998 is not in excess of 2.50 to 1.00.
(v) Other Assurances. Such other certificates, opinions or other
assurances as the Lender or special New York counsel to the Lender may
reasonably request.
SECTION 4.02. CONDITIONS PRECEDENT TO ALL LOANS. The obligation of the
Lender to make any Loan to the Company hereunder is subject to the following
conditions precedent:
(a) Compliance with Section 4.01. With respect to the initial Revolving
Credit Loan and Working Capital Loan to be made hereunder on the Closing Date,
if any, the Company shall have satisfied (or caused to be satisfied) all of the
conditions precedent in Section 4.01 hereof.
(b) Borrowing Notice and Borrowing Base Certificate. The Lender shall
have received a Borrowing Notice as required pursuant to Section 2.03(a) hereof
and, with respect to a Working Capital Loan, a Borrowing Base Certificate
setting forth the computation of the Borrowing Base and delivered in compliance
with Section 6.07(d)(1) hereof; provided that no Working Capital Loan to be made
on the Closing Date shall be made to the Company until such time as the Lender
shall have completed to its satisfaction its field exam and audit of the
Company's books and records.
(c) No Default; Representations and Warranties. Immediately before and
after giving effect to the making of each Loan (i) no Default hereunder shall
have occurred and be continuing; and (ii) the representations and warranties
made by the Company in Article V hereof shall be true in all material respects
on and as of the date of the making of such Loan (as the case may be) with the
same force and effect as if made on and as of such date (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, as of such specific date).
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ARTICLE V.
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Lender as follows:
SECTION 5.01. FINANCIAL CONDITION. (a) The consolidated balance sheet
of the Company and its consolidated Subsidiaries as at December 31, 1998, and
the related consolidated statements of income and consolidated statement of cash
flows for the fiscal year ended on such date, reported on by
PricewaterhouseCoopers, copies of which have heretofore been furnished to the
Lender, are complete and correct and present fairly the consolidated financial
condition of the Company and its consolidated Subsidiaries as at such date, and
the consolidated results of their operations and their consolidated cash flows
for the fiscal year then ended. The unaudited consolidated balance sheet of the
Company and its consolidated Subsidiaries as at March 31, 1999 and the related
unaudited consolidated statements of income and consolidated statement of cash
flows for the 3-month period ended on such date, copies of which have heretofore
been furnished to the Lender, are complete and correct and present fairly the
consolidated financial condition of the Company and its consolidated
Subsidiaries as at such date, and the consolidated results of their operations
and their consolidated cash flows for the 3-month period then ended (subject to
normal year-end audit adjustments). All such financial statements, including the
related schedules and notes thereto, have been prepared in accordance with GAAP
applied consistently throughout the periods involved (except as approved by such
accountants or Responsible Officer, as the case may be, and as disclosed
therein). Neither the Company nor any of its consolidated Subsidiaries had, as
at December 31, 1998, any material Guarantee Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction, which is not reflected in the foregoing statements or in
the notes thereto. During the period from December 31, 1998 to and including the
Closing Date, there has not been and will not have been any sale, transfer or
other disposition by the Company or any of its consolidated Subsidiaries of any
material part of its business or property, and no purchase or other acquisition
of any business or property (including any capital stock of any other Person)
material in relation to the consolidated financial condition of the Company or
any of its consolidated Subsidiaries at December 31, 1998. The Company's
independent accountants have not issued any management letter commenting on the
Company's internal controls or otherwise.
(b) The pro forma consolidated balance sheet of the Company and its
consolidated Subsidiaries as at March 31, 1999, certified by a Responsible
Officer (the "Pro Forma Balance Sheet"), a copy of which has been provided to
the Lender, is the unaudited consolidated balance sheet of the Company and its
consolidated Subsidiaries adjusted to give effect (as if such events had
occurred on such date) to (i) the making of the Revolving Loan, (ii) the making
of any Working Capital Loans to be made on the Closing Date, (iii) the
application of the proceeds of the foregoing in accordance with the terms of the
Loan Documents, and (iv) the payment of all fees and expenses related to the
foregoing transactions, as estimated in good faith as of the date of the Pro
Forma Balance Sheet. The Pro Forma Balance Sheet, together with the notes
thereto, presents fairly, on a pro forma basis, the consolidated and
consolidating financial position of the Company and its Subsidiaries as at March
31, 1999, assuming that the events specified in the
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preceding sentence had actually occurred on such date, based upon the Company's
good faith estimates.
(c) The operating forecast, balance sheets and cash flow projections of
the Company and its consolidated Subsidiaries for the period June 1, 1999
through December 31, 1999 (including monthly forecasts for the period June 1,
1999 through December 31, 1999), copies of which have heretofore been furnished
to the Lender, have been prepared in good faith under the direction of a
Responsible Officer of the Company (as amended from time to time, the
"Projections"). The Company has no reason to believe that, as of the date of
delivery thereof, the Projections are incorrect or misleading in any material
respect, or omit to state any fact which would render them misleading in any
material respect.
SECTION 5.02. NO CHANGE. Since December 31, 1998, except as set forth
on Schedule 3 hereto, (i) there has been no development or event nor any
prospective development or event, which has had or could reasonably be expected
to have a Material Adverse Effect, and (ii) no dividends or other distributions
have been declared, paid or made upon any shares of Capital Stock of the
Company, nor have any shares of Capital Stock of the Company been redeemed,
retired, purchased or otherwise acquired for value by the Company or any of the
Subsidiaries.
SECTION 5.03. COMPLIANCE WITH LAW. Each of the Company and the
Subsidiary Guarantors (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its formation or incorporation,
(b) has the power and authority, and the legal right, to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
entity and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification and (d) is in compliance with all Requirements of
Law, except, with respect to the preceding clauses (c) and (d), to the extent
that the failure to be so qualified and in good standing or to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
SECTION 5.04. NECESSARY ACTION; CONSENT; ENFORCEABLE OBLIGATIONS. (a)
Each Loan Party has the power and authority and the legal right to make, deliver
and perform the Loan Documents to which it is or will be a party, in the case of
the Company to borrow hereunder, and to grant Liens pursuant to the Security
Documents to which it is or will be a party and has taken all necessary action
to authorize, in the case of the Company the borrowings on the terms and
conditions of this Agreement and the Notes, the granting of Liens pursuant to
the Security Documents to which it is or will be a party and the execution,
delivery and performance of the Loan Documents to which it is or will be a
party. Each Loan Party, as the case may be, has the power and authority and the
legal right to make, deliver and perform each Capitalization Document to which
it is or will be a party and has taken all necessary action to authorize the
execution, delivery and performance of the Capitalization Documents to which it
is or will be a party.
(b) No consent or authorization of, filing with or other act by or in
respect of any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or with the execution, delivery,
performance, validity or enforceability of the Loan Documents to which a Loan
Party is or will be a party, and no consent or authorization of, filing
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with or other act by or in respect of, any Governmental Authority or any other
Person is required in connection the execution, delivery, performance, validity
or enforceability of the Capitalization Documents to which a Loan Party is or
will be a party, except in each case for consents, authorizations and filings
which have been obtained or made, as the case may be, and are in full force and
effect.
(c) This Agreement, each Note and each other Loan Document to which a
Loan Party is or will be a party, have been (or on the Closing Date will be)
duly executed and delivered on behalf of such Loan Party, and this Agreement,
and each Note and each other Loan Document to which it is or will be a party
constitutes a legal, valid and binding obligation of the Loan Party thereto,
enforceable against such Loan Party in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law). Each Capitalization
Document to which a Loan Party is or will be a party has been duly executed and
delivered on behalf of such Loan Party, and each such Capitalization Document
constitutes a legal, valid and binding obligation of the Loan Party or
Subsidiary party thereto, enforceable against such Loan Party or Subsidiary in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors rights generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
SECTION 5.05. NO LEGAL BAR. The execution, delivery and performance by
the Company of this Agreement and the Notes and by each Loan Party of the other
Loan Documents to which it is or will be a party, the borrowings hereunder and
the use of the proceeds hereof and the granting of Liens pursuant to the
Security Documents, do not and will not violate any Requirement of Law or any
Contractual Obligation of a Loan Party, and do not or will not result in, or
require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation (other than the Liens created by the Security Documents
in favor of the Lender). The execution, delivery and performance by each Loan
Party of the Capitalization Documents to which it is or will be a party do not
and will not violate any Requirement of Law or any Contractual Obligation of
such Loan Party and will not result in, or require, the creation or imposition
of any Lien on any of its or their respective properties or revenues pursuant to
any such Requirement of Law or Contractual Obligation (other than the Liens
created by the Security Documents in favor of the Lender).
SECTION 5.06. NO MATERIAL LITIGATION. Except as disclosed on Schedule 3
hereto, no litigation, investigation or proceeding of or before any arbitrator
or Governmental Authority is pending or, to the best knowledge of each Loan
Party, threatened, by or against any Loan Party or against any of its or their
respective properties or revenues (i) with respect to this Agreement, the Notes,
the other Loan Documents or the Capitalization Documents or any of the
transactions contemplated hereby or thereby, or (ii) which could reasonably be
expected to have a Material Adverse Effect.
SECTION 5.07. NO DEFAULT. No Loan Party is in default under or with
respect to any Contractual Obligation in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
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SECTION 5.08. OWNERSHIP OF PROPERTY; LIENS. Each Loan Party has valid
leasehold interests in all its real property, and good title to or valid
leasehold interests in, all of its property, and none of such property is
subject to any Lien, except as permitted in Section 7.01 hereof. Schedule 5
hereto contains a true and correct list of all interests of the Company in Real
Estate, owned or leased.
SECTION 5.09. INDEBTEDNESS AND LIENS. (a) Part A of Schedule 4 hereto
is a complete and correct list of each credit agreement, loan agreement,
indenture, guarantee, letter of credit or other arrangement providing for or
otherwise relating to any Indebtedness (other than Indebtedness hereunder) to,
or guaranteed by, the Company or any of its Subsidiaries outstanding on the
Closing Date (after giving effect to the making of the Revolving Loan and
initial Working Capital Loans hereunder), and the aggregate principal or face
amount outstanding (or that may become outstanding) under each such arrangement
is correctly described in Part A of said Schedule 4.
(b) Part B of Schedule 4 hereto is a complete and correct list, as of
the Closing Date (after giving effect to the making of the Revolving Loan and
any initial Working Capital Loans hereunder), of each Lien securing Indebtedness
(other than Indebtedness incurred hereunder) of any Person covering any property
of the Company or any of its Subsidiaries, and the aggregate Indebtedness
secured (or which may be secured) by each such Lien and the property covered by
each such Lien is correctly described in Part B of said Schedule 4.
SECTION 5.10. INTELLECTUAL PROPERTY, MATERIAL AUTHORIZATIONS AND
CAPITALIZATION DOCUMENTS. (a) Each Loan Party owns, or is licensed to use, all
Intellectual Property. No claim is pending or has been asserted by any Person
challenging or questioning the use of any such Intellectual Property (other than
any such assertion that has been conclusively resolved in favor of the Loan
Party). The use by a Loan Party of such Intellectual Property does not infringe
on the valid intellectual property rights of any Person, except for such claims
and infringements that, in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(b) Schedule 2 hereto accurately and completely lists all (i)
Intellectual Property, (ii) Capitalization Documents, (iii) employment contracts
with executive employees of any Loan Party, and (iv) all Material
Authorizations, each as in effect on the Closing Date.
(c) In addition to the Intellectual Property, each Loan Party has
obtained and possesses all material permits, governmental authorizations,
franchises and licenses believed to be necessary for the conduct of its business
as currently conducted except for those the failure to own or license which
could not reasonably be expected to have a Material Adverse Effect, and each of
the foregoing is in full force and effect and no event has occurred which
permits, or after passage of time or giving of notice or both would permit,
revocation or termination of any of the foregoing so as to have a Material
Adverse Effect; except that the Loan Parties have informed the Lender that the
Company has certain "take or pay" license obligations to SS&C under the
Distributor Agreement dated as of December 31, 1998 (as amended by the letter
agreement dated as of March 29, 1999), which are applicable regardless of the
Company's ability to obtain customers for or otherwise sublicense the related
software products.
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SECTION 5.11. NO BURDENSOME RESTRICTIONS. No Contractual Obligation of
a Loan Party and no Requirement of Law could reasonably be expected to have a
Material Adverse Effect.
SECTION 5.12. TAXES. Each Loan Party has filed or caused to be filed
all tax returns which are required to be filed and has paid all taxes shown to
be due and payable on said returns or on any assessments made against it or any
of its property and all other taxes, fees or other charges imposed on it or any
of its property by any Governmental Authority (other than those the amount or
validity of which is currently being contested in good faith by appropriate
proceedings, with respect to which reserves in conformity with GAAP have been
provided on the books of such Loan Party, as the case may be, and which, if such
contest were adversely determined, could not reasonably be expected to have a
Material Adverse Effect); and no tax liens have been filed and, to the best
knowledge of each Loan Party, no claims are being asserted with respect to any
such taxes, fees or other charges.
SECTION 5.13. INSURANCE. Each of the Company and the Subsidiaries has
insurance with respect to its properties, assets and business against all losses
or damages or risks of the kinds customarily insured against by companies
similarly situated, of the type and manner described in Section 6.04 hereof.
SECTION 5.14. ERISA. No accumulated funding deficiency (as defined in
Section 412 of the Code or Section 302 of ERISA) or Reportable Event has
occurred with respect to any Plan and there are no Unfunded Benefit Liabilities
under any Plan. Neither of the Company nor any ERISA Affiliate has any
obligation to contribute to a Multiemployer Plan. No material liability to the
PBGC (other than required premium payments), the Internal Revenue Service, any
Plan (other than contribution obligations expressly contemplated under the
Company's pension plan) or any trust established under Title IV of ERISA has
been, or is expected by the Company or any ERISA Affiliate to be, incurred by
the Company or any ERISA Affiliate. No lien under Section 412(n) of the Code or
Section 302(f) of ERISA or requirement to provide security under Section
401(a)(29) of the Code or Section 307 of ERISA has been or is reasonably
expected by the Company or any ERISA Affiliate to be imposed on the assets of
the Company or any ERISA Affiliate.
SECTION 5.15. CAPITALIZATION OF COMPANY. (a) All membership interests
of the Company are set forth in Part A of Schedule 1(A) hereto, have been duly
authorized and validly issued and are owned by all the members of the Company.
(b) Except as otherwise described in Part B of Schedule 1(A) hereto,
there are no outstanding subscriptions, options, warrants, calls, rights
(including, without limitation, preemptive rights) or other agreements or
commitments of any nature to which the Company or any of its Subsidiaries is a
party relating to the issuance of any Capital Stock by the Company to a Person
other than the Lender.
SECTION 5.16. SUBSIDIARIES. Schedule 1(B) hereto accurately and
completely lists all Subsidiaries of the Company as of the date hereof, together
with, for each such Subsidiary, (i) the jurisdiction of organization of such
Subsidiary, (ii) each Person holding ownership interests in such Subsidiary, and
(iii) the nature of the ownership interests held by each such Person and the
percentage of ownership of such Subsidiary represented by such ownership
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interests. Except as disclosed in Schedule 1(B) hereto, (A) each of the Company
and its Subsidiaries owns, free and clear of Liens (other than Liens created
pursuant to the Security Documents), and has the unencumbered right to vote, all
outstanding ownership interests in each Person shown to be held by it on
Schedule 1(B) hereto, (B) all of the issued and outstanding capital stock of
each such Person organized as a corporation is validly issued, fully paid and
nonassessable, and (C) there are no outstanding subscriptions, options,
warrants, calls, rights (including, without limitation, preemptive rights) or
other agreements or commitments of any nature to which any Subsidiary is a party
relating to the issuance of any Capital Stock by such Subsidiary to any Person.
SECTION 5.17. INVESTMENT COMPANY ACT. The Company is not an "investment
company", or a company "controlled" by an "investment company", within the
meaning of the Investment Company Act of 1940, as amended.
SECTION 5.18. HOLDING COMPANY ACT. The Company 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," as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
SECTION 5.19. NAME CHANGE. The Company or any of its Subsidiaries has
not at any time been the surviving entity of a merger or consolidation and has
not changed its name (except that (i) the Company, which was originally named
"GFI Caminus LLC" changed its name to "Caminus Energy Ventures LLC" and then to
"Caminus LLC", (ii) Zai*Net was merged with and into the Company following the
conversion of the minority interest in Zai*Net into an equity interest in the
Company, and (iii) [insert details of U.K. merger - details to come]).
SECTION 5.20. BROKERS. Neither the Company nor any other Person acting
on its behalf has dealt with any broker or finder in connection with the
financing contemplated by this Agreement.
SECTION 5.21. ENVIRONMENTAL MATTERS. Except as disclosed on Schedule 3
hereto, (i) neither the Collateral, the Real Estate nor, to the Company's
knowledge, any property adjacent to or within the immediate vicinity of the
Collateral or the Real Estate is being or has been used in violation of any
applicable Environmental Law for the management, storage, treatment, generation,
transportation, processing, handling, production or disposal of any Hazardous
Substance, or as a landfill, or other waste management or disposal site, or for
the storage of petroleum or petroleum based products, (ii) underground storage
tanks are not and have not been located on the Collateral and the Real Estate,
(iii) the soil, subsoil, bedrock, surface water and groundwater of the
Collateral and the Real Estate are free of Hazardous Substances (other than any
such substances that occur naturally), (iv) there has been no release or threat
of a release of any Hazardous Substance on, at or from the Collateral or the
Real Estate or, to the Company's actual knowledge (without independent
investigation), from any property adjacent to or within the immediate vicinity
of the Collateral and/or the Real Estate which through soil, subsoil, bedrock,
surface water or groundwater migration could come to be located on or at the
Collateral and/or the Real Estate, and the Company or any of its Subsidiaries
has not received any form of written notice or inquiry from any federal, state
or local governmental agency or authority, any operator, tenant, subtenant,
licensee or occupant of the Collateral and/or the Real Estate or, to the
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Company's actual knowledge (without independent investigation), from any
property adjacent to or within the immediate vicinity of the Collateral and/or
the Real Estate or any other Person with regard to a release or the threat of a
release of any Hazardous Substance on, at or from the Collateral and/or the Real
Estate or, to the Company's knowledge, from any property adjacent to or within
the immediate vicinity of the Collateral and/or the Real Estate, (v) all
Environmental Permits necessary for the construction, equipping, ownership, use
or operation of the Collateral and/or the Real Estate have been obtained and are
in full force and effect, (vi) no event has occurred with respect to the
Collateral and/or the Real Estate which, with the passage of time or the giving
of notice, or both, would constitute a violation of or non-compliance with, any
applicable Environmental Law or Environmental Permit, (vii) there are no
agreements, consent orders, decrees, judgments, license or permit conditions or
other orders or directives of any federal, state or local court, governmental
agency or authority relating to the past, present or future construction,
equipping, ownership, use, operation, sale, transfer or conveyance of the
Collateral and/or the Real Estate which require any change in the present
condition of the Collateral and/or the Real Estate or any work, repairs,
construction, containment, clean up, investigations, studies, removal or
remedial action or capital expenditures in order for the Collateral and/or the
Real Estate to be in compliance with any applicable Environmental Law or
Environmental Permit, (viii) there are no actions, suits, claims or proceedings,
pending or (to the Company's knowledge) threatened, which could cause the
incurrence of expenses or costs of any name or description or which seek money
damages, injunctive relief, remedial action or remedy that arise out of, relate
to or result from (A) environmental conditions at, on or in the vicinity of the
Collateral or the Real Estate, (B) a violation or alleged violation of any
applicable Environmental Law or non-compliance or alleged non-compliance or
alleged non-compliance with any Environmental Permit, (C) the presence of any
Hazardous Substance or a Release or the threat of a Release of any Hazardous
Substance on, at or from the Collateral and/or the Real Estate or, to the
Company's knowledge, from any property adjacent to or within the immediate
vicinity of the Collateral and/or the Real Estate, or (D) human exposure to any
Hazardous Substance, noises, vibrations or nuisances of whatever kind to the
extent the same arise from the condition of the Collateral and/or the Real
Estate or the acquisition, construction, equipping, ownership, use, operation,
sale, transfer or conveyance thereof.
SECTION 5.22. ACCURACY AND COMPLETENESS OF INFORMATION. (a) All factual
information, reports and other papers and data with respect to the Loan Parties
and their Subsidiaries (other than projections) furnished, and all factual
statements and representations made, to the Lender or the Lender by a Loan
Party, or on behalf of a Loan Party, were, at the time the same were so
furnished or made, when taken together with all such other factual information,
reports and other papers and data previously so furnished and all such other
factual statements and representations previously so made, complete and correct
in all material respects, to the extent necessary to give the Lender true and
accurate knowledge of the subject matter thereof in all material respects, and
did not, as of the date so furnished or made, contain any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances in
which the same were made.
(b) All projections with respect to the Loan Parties furnished by or on
behalf of a Loan Party to the Lender were prepared and presented in good faith
by or on behalf of such Loan Party. No fact is known to a Loan Party or any of
the Subsidiaries which materially and
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adversely affects or in the future is reasonably likely (so far as such Loan
Party or the Subsidiaries can reasonably foresee) to have a Material Adverse
Effect which has not been set forth in the financial statements referred to in
Section 5.01 hereof or in such information, reports, papers and data or
otherwise disclosed in writing to the Lender prior to the Closing Date.
SECTION 5.23. LABOR RELATIONS. No Loan Party nor any of the
Subsidiaries is engaged in any unfair labor practice which could reasonably be
expected to have a Material Adverse Effect. There is (i) no unfair labor
practice compliant pending or, to the best knowledge of each Loan Party and each
of the Subsidiaries, threatened against a Loan Party or any of the Subsidiaries
which could reasonably be expected to have a Material Adverse Effect and no
grievance or arbitration proceeding arising out of or under a collective
bargaining agreement is so pending or threatened; (ii) no strike, labor dispute,
slowdown or stoppage pending or, to the best knowledge of each Loan Party and
each of the Subsidiaries, threatened against a Loan Party or any of the
Subsidiaries; and (iii) to the knowledge of each Loan Party and each of the
Subsidiaries, no union representation question existing with respect to the
employees of a Loan Party or any of the Subsidiaries and no union organizing
activities are taking place with respect to any thereof.
SECTION 5.24. YEAR 2000 PROBLEM. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the Company's and
its Subsidiaries' computer systems and (ii) equipment containing embedded
microchips (including systems and equipment supplied by others or with which
Company's or its Subsidiaries' systems interface) and the testing of all such
systems and equipment, as so reprogrammed, will be completed by September 30,
1999. The cost to the Company and its Subsidiaries of such reprogramming and
testing of the reasonably foreseeable consequences of year 2000 to the Company
and its Subsidiaries (including, without limitation, reprogramming errors and
the failure of others' systems or equipment) will not result in a Default or a
Material Adverse Effect. Except for such of the reprogramming referred to in the
preceding sentence as may be necessary, the computer and management information
systems of the Company and its Subsidiaries are and, with ordinary course
upgrading and maintenance, will continue for the term of this Agreement to be,
sufficient to permit the Company to conduct its business without Material
Adverse Effect.
ARTICLE VI.
AFFIRMATIVE COVENANTS
So long as any Commitment or Loan is outstanding and until payment in
full of all amounts payable by the Company hereunder or under the Notes, the
Company covenants and agrees with the Lender as follows:
SECTION 6.01. MAINTENANCE OF EXISTENCE. Each of the Company and its
Subsidiaries will preserve and maintain its existence and good standing in the
jurisdiction of its formation, and qualify and remain qualified to do business
and remain in good standing in each jurisdiction in which such qualification is
required.
SECTION 6.02. MAINTENANCE OF FINANCIAL RECORDS. Each of the Company and
its Subsidiaries will keep adequate records and books of account, in which
complete entries will be
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made in accordance with GAAP consistently applied, reflecting all financial
transactions of the Company.
SECTION 6.03. MAINTENANCE OF PROPERTIES. Each of the Company and its
Subsidiaries will maintain, keep, and preserve all of its properties (tangible
and intangible) necessary in the proper conduct of the Company Business in
reasonably good working order and condition, ordinary wear and tear excepted.
SECTION 6.04. MAINTENANCE OF INSURANCE. Each of the Company and its
Subsidiaries will maintain insurance with financially sound and reputable
insurers against all losses or damages or risks of the kinds customarily insured
against by companies similarly situated, including, but not limited to, business
interruption insurance, unemployment insurance, workmen's compensation insurance
for the employees of the Company and its Subsidiaries, public liability,
property damage, fire and extended coverage and comprehensive general liability
insurance, all of which insurance shall (i) be in amounts and issued by
companies acceptable to Lender, (ii) contain an endorsement in form and
substance satisfactory to the Lender that names the Lender for the benefit of
the Lender as loss payee of all casualty insurance policies and as an additional
insured in all other insurance maintained by the Company and its Subsidiaries,
and (iii) each policy of insurance required under this Section 6.04 shall
provide that such policy may not be amended, canceled or otherwise terminated
without at least thirty (30) days' prior written notice to the Lender and shall
permit the Lender to pay any premium therefor within ten (10) days after receipt
of any notice stating that such premium has not been paid when due. The policy
or policies of such insurance, together with certificates of insurance
evidencing the required coverage shall be delivered to the Lender. If the
Company, at any time or times hereafter, shall fail to obtain or maintain any of
the policies of insurance required in this Section 6.04 or to pay any premium in
whole or in part relating thereto, the Lender, on behalf of the Lender, without
waiving or releasing any Default or Event of Default by the Company hereunder or
under any of the other Loan Documents, may at any time or times thereafter (but
shall be under no obligation to do so) obtain and maintain such policies of
insurance and pay such premiums and take any other action with respect thereto
that the Lender deems advisable. All sums so disbursed by the Lender, including,
without limitation, premiums, reasonable attorneys' fees, costs, expenses and
other charges relating thereto, shall by payable, on demand, by the Company.
SECTION 6.05. COMPLIANCE WITH LAWS. Each of the Company and its
Subsidiaries will comply with all applicable laws, rules, regulations, policies
and orders of Governmental Authorities, such compliance to include, without
limitation, paying, before the same become delinquent, all taxes, assessments,
and governmental charges imposed upon it or upon its property (other than those
the amount or validity of which is currently being contested in good faith by
appropriate proceedings and with respect to which adequate reserves have been
provided in accordance with GAAP).
SECTION 6.06. RIGHT OF INSPECTION. During normal business hours, the
Company shall permit the Lender or any agent or representative thereof, upon two
(2) Business Days' prior notice, to examine and make copies of and abstracts
from the records and books of accounts of, and visit the properties of, the
Company or any of its Subsidiaries; and to discuss the affairs,
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finances, and accounts of the Company and its Subsidiaries with their executive
officers, representatives and independent accountants.
SECTION 6.07. REPORTING REQUIREMENTS AND NOTICES. The Company shall
deliver to the Lender:
(a) [Intentionally Omitted]
(b) Quarterly Financial Statements. As soon as available and in any
event within forty-five (45) days after the end of each of the first three
Fiscal Quarters of each Fiscal Year (beginning with the Fiscal Quarter in which
the Closing Date occurs), consolidated and consolidating balance sheets of the
Company and its Subsidiaries as of the end of such Fiscal Quarter and related
consolidated and consolidating statements of income and retained earnings and of
cash flows for (i) such Fiscal Quarter, and (ii) the period beginning on the
first day of the then current Fiscal Year and ending on the last day of such
Fiscal Quarter, all in reasonable detail and, commencing with the Fiscal Quarter
ending March 31, 2000 and thereafter, stating in comparative form the respective
figures (x) for the same periods in the preceding Fiscal Year, and (ii) from the
Projections for the current Fiscal Year, prepared in accordance with GAAP
consistently applied and accompanied by the certificate of a Responsible Officer
of the Company referred to in Section 6.07(d)(3) below.
(c) Annual Financial Statements. As soon as available and in any event
within ninety (90) days after the end of each Fiscal Year, consolidated and
consolidating balance sheets of the Company and its Subsidiaries as of the end
of such Fiscal Year and related consolidated and consolidating statements of
income and retained earnings and of cash flows for such Fiscal Year, setting
forth in comparative form the respective figures for the preceding Fiscal Year,
and all prepared in accordance with GAAP consistently applied and accompanied by
the opinion and certifications referred to in Section 6.07(d)(3) and Section
6.07(e) below.
(d) Officer's Certificates & Other Information.
(1) Monthly Borrowing Base Certificates. As soon as available
and in any event within twenty (20) days after the last day of
each calendar month (beginning with the calendar month in
which the Closing Date occurs), a Borrowing Base Certificate,
duly completed and certified by a Responsible Officer of the
Company as at such last Business Day.
(2) Quarterly Compliance Certificate. With the Company's
financial statements described in Section 6.07(b) hereof, (i)
a certificate of a Responsible Officer of the Company in the
form of Exhibit G-1 hereto, duly dated, completed and executed
(herein, a "Quarterly Compliance Certificate") pursuant to
which, among other things, such Responsible Officer shall
certify (x) that said financial statements fairly present the
consolidated and consolidating financial condition and results
of operations, as the case may be, of the Company and its
Subsidiaries in accordance with GAAP consistently applied, as
at the end of, and for, the applicable periods (subject to
normal year-end audit adjustments), (y) to the best of his or
her knowledge, that no Default has occurred and is continuing
as at the
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end of the applicable Fiscal Quarter or as at the date of such
certificate (or if a Default has occurred and is continuing, a
statement as to the nature thereof and the action which is
proposed to be taken with respect thereto), and (z) compliance
with the covenants contained in Section 7.14 hereof (and
demonstrating the same in reasonable detail), and, commencing
with the Fiscal Quarter ending March 31, 2000 and thereafter,
(ii) a management report of the Company describing (x) the
operational and financial condition of the Company and its
Subsidiaries for such Fiscal Quarter and the portion of the
Fiscal Year then elapsed, and (y) discussing the reasons for
any significant variations from the Projections for the
current Fiscal Year.
(3) Annual Compliance Certificate. With the financial
statements described in Sections 6.07(c) hereof, a certificate
of a Responsible Officer of the Company in the form of Exhibit
G-2 hereto, duly dated, completed and executed (herein, an
"Annual Compliance Certificate") certifying that (A) said
financial statements fairly present the consolidated and
consolidating financial condition and results of operations,
as the case may be, of the Company and its Subsidiaries in
accordance with GAAP consistently applied, as at the end of,
and for, the applicable period, and (B) to the best of his or
her knowledge, no Default has occurred and is continuing as at
the end of the applicable period or as at the date of such
certificate (or if a Default has occurred and is continuing, a
statement as to the nature thereof and the action which is
proposed to be taken with respect thereto).
(4) Accounts Receivable Aging Report. On or before the tenth
(10th) day of each month, a detailed aging report setting
forth amounts due and owing on Accounts Receivable on the
Company's books as of the close of the preceding month.
(e) Accountants' Opinion and Certificate. With the financial statements
described in Section 6.07(c) above, (i) an opinion of PricewaterhouseCoopers or
other independent certified public accountants of recognized national standing
selected by the Company and satisfactory to the Lender to the effect that those
financial statements fairly present the consolidated and consolidating financial
condition and results of operations of the Company and its Subsidiaries as at
the end of, and for, the applicable Fiscal Year in accordance with GAAP
consistently applied, and (ii) a written statement of such independent certified
public accountants to the effect that during the course of their audit of the
operations of the Company and its Subsidiaries and their condition as at the end
of the relevant Fiscal Year, nothing has come to their attention which would
indicate that a Default or an Event of Default has occurred, or, if such cannot
be certified, specifying in reasonable detail the exceptions, if any, to such
statement.
(f) Accountants' Report. Promptly upon receipt thereof, copies of all
significant reports submitted to the Company by its independent certified public
accountants in connection with each annual, interim or special audit of the
financial statements of the Company made by such accountants, including without
limitation the comment letter (if any) submitted by such accountants to the
Company's management in connection with their annual audit.
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(g) Projections & Budget. As soon as available and in any event no
later than the last day of each Fiscal Quarter (commencing with the Fiscal
Quarter ending December 31, 1999), projections and budgets of the Company and
its Subsidiaries for the forthcoming Fiscal Quarter, which shall include, on a
quarterly basis, operating and capital budget, income and cash flow statements
and balance sheets, and the analysis and discussion of management of such
projections, all certified by a Responsible Officer of the Company as being
prepared based on the assumptions and assessments believed by the Company to be
reasonable and appropriate both as of the date of such projections and as of the
date of submission thereof to the Lender.
(h) Governmental Reports. Promptly upon their becoming available,
copies of any and all periodic or special reports filed by, or on behalf of, the
Company or any of its Subsidiaries with any Governmental Authority, if such
reports indicate any material change in the business, operations, affairs or
conditions of the Company or any of its Subsidiaries or if copies thereof are
requested by the Lender, and copies of any and all material notices and other
material communications from any Governmental Authority with respect to the
Company or any of its Subsidiaries.
(i) Securities Reports and Filings. Promptly upon their becoming
available, copies of all registration statements and regular periodic reports,
if any, which the Company or any of its Subsidiaries shall have filed with the
Securities and Exchange Commission (or any Governmental Authority substituted
therefor) or any national securities exchange.
(j) Notices. Promptly give notice to the Lender of any of the
following:
(1) Default. The occurrence of any Default or Event of
Default.
(2) Contractual Obligations. (i) Default or event of
default under any Contractual Obligation relating to
Indebtedness of the Company or any of its
Subsidiaries (other than hereunder), and (ii) default
or event of default of the Company or any of its
Subsidiaries under any other Contractual Obligation
which, if not cured, could reasonably be expected to
have a Material Adverse Effect.
(3) Litigation etc. Any litigation, investigation or
proceeding affecting the Company or any Subsidiary
Guarantor (i) in which the amount involved is
$100,000 or more and not covered by insurance, (ii)
in which injunctive or similar relief is sought, or
(iii) which, if adversely determined, could
reasonably be expected to have a Material Adverse
Effect.
(4) Additional Collateral. The acquisition by any Loan
Party of any property or interest in property
(including, without limitation, Real Estate), that is
not subject to a perfected Lien in favor of the
Lender pursuant to the Security Documents.
(5) ERISA. (i) Any Termination Event with respect to a
Plan has occurred or will occur, or (ii) any
condition exists with respect to a Plan which
presents a material risk of termination of the Plan
or imposition of an excise tax or other liability on
the Company or any ERISA Affiliate, or
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(iii) there exists an accumulated funding deficiency
within the meaning of Section 412 of the Code or
Section 302 of ERISA with respect to any Plan
maintained by the Company or an ERISA Affiliate, or
the Company or any ERISA Affiliate has applied for a
waiver of the minimum funding standard under Section
412 of the Code or Section 302 of ERISA, or (iv) the
aggregate Unfunded Benefit Liabilities under all
Plans that are not Multiemployer Plans has in any
year increased by $100,000 or to an amount in excess
of $200,000, or (v) any condition exists with respect
to a Multiemployer Plan which presents a material
risk of a partial or complete withdrawal (as
described in Sections 4203 or 4205 of ERISA) by the
Company or any ERISA Affiliate from a Multiemployer
Plan, or (vi) the Company or any ERISA Affiliate is
in "default" (as defined in Section 4219(c)(5) of
ERISA) with respect to withdrawal liability payments
to a Multiemployer Plan, or (vii) the withdrawal
liability (as determined in accordance with Title IV
of ERISA) of the Company and the ERISA Affiliates
with respect to all Multiemployer Plans has in any
year increased by $200,000 or to an amount in excess
of $400,000, a certificate of a Responsible Officer
of the Company setting forth the details of each of
the events described in clauses (i) through (vii)
above as applicable and the action which the Company
or the applicable ERISA Affiliate proposes to take
with respect thereto, together with a copy of any
notice or filing from the PBGC, any notice of
withdrawal from a Multiemployer Plan, or any notice
or filing with or from the IRS that relates to such
events.
(6) Material Adverse Change. A material adverse change in
the business, operations, property or financial or
other condition or prospects of the Company or any of
the Subsidiaries.
(k) Other Information. With reasonable promptness, such other
information and data with respect to the Company and which the Lender may
reasonably request from time to time.
SECTION 6.08. ADDITIONAL COLLATERAL. In the event that any Loan Party
acquires any property or interest in property (including, without limitation,
Real Estate) other than property made subject to a Lien permitted under Section
7.01 hereof, that is not subject to a perfected Lien in favor of the Lender
pursuant to the Security Documents, such Loan Party shall take such action as
the Lender shall request in order to promptly create and/or perfect a Lien in
favor of the Lender on such property (including, without limitation, the
preparation and filing of mortgages or deeds of trust in form and substance
satisfactory to the Lender and a lender's policy of title or leasehold
insurance, in such amount as shall be reasonably satisfactory to the Lender).
SECTION 6.09. ENVIRONMENTAL COVENANTS. (a) The Company shall, and shall
cause its Subsidiaries to, (i) construct, equip, use, operate and manage the
Collateral and/or the Real Estate, in accordance with all applicable
Environmental Laws and Environmental permits, and shall use reasonable efforts
to cause all operators, tenants, subtenants, licensees and occupants of the Real
Estate to construct, equip, use, operate and manage, in accordance with any
applicable Environmental Laws and Environmental Permits, and shall not cause,
allow or permit the Collateral and/or the Real Estate or any part thereof to be
operated or used for the storage,
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treatment, generation, transportation, processing, handling, production,
management or disposal of any Hazardous Substances other than in accordance with
all applicable Environmental Laws and Environmental Permits, (ii) use reasonable
efforts to cause all operators, tenants, subtenants, licensees and occupants of
the Collateral and/or the Real Estate to obtain, comply with, and shall cause
all operators, tenants, subtenants, licensees and occupants of the Collateral
and/or the Real Estate to obtain and comply with, all Environmental Permits,
(iii) not cause or permit any change to be made in the present or intended
construction, equipping, use or operation of the Collateral and/or the Real
Estate which would (A) involve the storage, treatment, generation,
transportation, processing, handling, management, production or disposal of any
Hazardous Substance other than in accordance with any applicable Environmental
Law, or the construction, equipping, use or operation of the Collateral and/or
the Real Estate as a landfill or waste management or disposal site or for
manufacturing or industrial purposes or for the storage of petroleum or
petroleum based products other than in accordance with any applicable
Environmental Law, (B) violate any applicable Environmental Law, (C) constitute
a violation or non-compliance with any Environmental Permit, or (D) increase the
risk of a release of any Hazardous Substance, (iv) promptly provide the Lender
with a copy of all written notifications which it gives or receives with respect
to Environmental Conditions at or in the vicinity of the Collateral and/or the
Real Estate, any past or present release or the threat of a release of any
Hazardous Substance on, at or from the Collateral and/or the Real Estate or any
property adjacent to or within the immediate vicinity of the Collateral and/or
the Real Estate (and if the Company receives or becomes aware of any such
notification which is not in writing or otherwise capable of being copied, the
Company shall promptly advise the Lender of such verbal, telephonic or
electronic notification and confirm such notice in writing), (v) undertake and
complete all investigations, studies, sampling and testing and all removal or
remedial actions necessary to contain, remove and clean up all Hazardous
Substances that are present at the Collateral and/or the Real Estate and are
required to be removed and/or remediated by the Company in accordance with all
applicable Environmental Laws and all Environmental Permits, (vi) allow the
Lender and its officers, members, employees, agents, representatives,
contractors and subcontractors reasonable access to the Collateral and/or the
Real Estate during regular business hours of the Company for the purposes of
ascertaining the Environmental Conditions at, on or in the vicinity of the
Collateral and/or the Real Estate, including, but not limited to, subsurface
conditions.
(b) If at any time the Company obtains any notice or information that
the Company or any of its Subsidiaries or the Collateral and/or the Real Estate
or the construction, equipping, use or operation of the Collateral and the Real
Estate may be in violation of any Environmental Law or in non-compliance with
any Environmental permit or standard, the Lender may require that a full or
supplemental environmental assessment inspection and audit report with respect
to the Collateral and/or the Real Estate of a scope and level of detail
reasonably satisfactory to the Lender be prepared by a professional
environmental engineer or other qualified environmental scientist acceptable to
the Lender, at the Company's sole cost and expense. Said audit may, but is not
required to or limited to, include a physical inspection of the Collateral
and/or the Real Estate, a records search, a visual inspection of any property
adjacent to or within the immediate vicinity of the Collateral and/or the Real
Estate, personnel interviews, review of all Environmental Permits and the
conduct of a scientific testing. If necessary to determine whether a violation
of an Environmental Law exists, such inspection shall also include subsurface
testing for the presence of Hazardous Substances in the soil, subsoil, bedrock,
surface water and/or
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groundwater. If said report indicates the presence of any Hazardous Substance or
a Release or Disposal or the threat of a Release or Disposal of any Hazardous
Substance on, at or from the Collateral and/or the Real Estate, the Company at
its own cost and expense shall promptly undertake and diligently pursue to
completion all necessary, appropriate investigative, containment, removal, clean
up and other remedial actions required of the Company by any Environmental Law,
using methods recommended by the professional engineer or other environmental
scientist who prepared said audit report and acceptable to the appropriate
federal, state and local agencies or authorities.
SECTION 6.10. CERTAIN OBLIGATIONS REGARDING SUBSIDIARIES; FURTHER
ASSURANCES COVENANTS. (a) The Company shall take such action, and will cause
each of its Subsidiaries to take such action, from time to time as shall be
necessary to ensure that all Subsidiaries of the Company are "Subsidiary
Guarantors" hereunder. Without limiting the generality of the foregoing, in the
event that the Company or any of its Subsidiaries shall acquire or form any new
Subsidiary after the date hereof, the Company or the respective Subsidiary will
cause such new Subsidiary to (i) become a "Subsidiary Guarantor" by its
execution and delivery to the Lender of a Subsidiary Guarantee, a Subsidiary
Security Agreement and the taking of such other action (including delivering
such shares of stock, executing and delivering such financing statements) as
shall be necessary to create and perfect valid and enforceable first priority
Liens on substantially all of the property of such new Subsidiary as collateral
security for the Obligations of such new Subsidiary hereunder, and (ii) deliver
such proof of corporate action, incumbency of officers, opinions of counsel and
other documents as the Lender shall have reasonably requested. In connection
with the foregoing, the Company will execute and deliver (or will cause to be
executed and delivered) a Subsidiary Pledge Agreement pursuant to which all of
the shares of such Subsidiary will be pledged to the Lender as collateral
security for the Obligations. The Company has advised that Caminus Consultants
Limited is a dormant indirect Subsidiary of the Company. Accordingly, in
connection with such Subsidiary, the Company will cause to be executed and
delivered a Subsidiary Pledge Agreement pursuant to which 65% of the shares of
such Subsidiary will be pledged to the Lender as collateral security for the
Obligations. In the event that Caminus Consultants Limited becomes an operating
company, the Company shall cause such Subsidiary to become a "Subsidiary
Guarantor" by its execution and delivery to the Lender of a Subsidiary
Guarantee, a Subsidiary Security Agreement and the taking of such other action
as shall be necessary to create and perfect valid and enforceable first priority
Liens on substantially all of the property of such Subsidiary as collateral
security for the Obligations of such Subsidiary hereunder.
(b) The Company will, and will cause each of its Subsidiaries to, take
such action from time to time as shall be necessary to ensure that each of its
Subsidiaries is a Wholly-Owned Subsidiary. In the event that any additional
shares of stock shall be issued by any Subsidiary, the respective Loan Party
agrees forthwith to deliver to the Lender pursuant to the applicable Security
Documents the certificates evidencing such shares of stock, accompanied by
undated stock powers executed in blank and to take such other action as the
Lender shall request to perfect the security interest created therein pursuant
to such Security Documents.
(c) The Company shall cause the Company Pledgors or any other member of
the Company to pledge additional membership interests to the Company so that the
Company shall maintain at all times a first and prior security interest in and
Lien on at least 75% of the Capital
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Stock of the Company, and the Company shall provide Lender, as requested from
time to time, with a copy of its membership interest register to confirm the
total issued and outstanding Capital Stock of the Company, that the Lender has a
security interest in and Lien on at least 75% of the Capital Stock of the
Company and that the Lender is properly reflected on such register as having a
first and prior security interest in and Lien on the membership interests of the
Company Pledgors.
(d) The Company will, and will cause each of the other Loan Parties to,
take such action from time to time as shall reasonably be requested by the
Lender to effectuate the purposes and objectives of the parties to this
Agreement and the other Loan Documents, including without limitation filing
appropriate financing statements and executing and delivering such assignments,
security agreements and other instruments in favor of the Lender.
SECTION 6.11. ADDITIONAL CAPITAL CONTRIBUTIONS. At such time that the
Company shall be required to make the Scheduled Earn-Out Payment to Rooney
pursuant to the Zai*Net Acquisition Documents, the Company shall make a written
call notice to the Investor Group in accordance with the terms of the Operating
Agreement so that such Investor Group shall make its required additional capital
contribution to the Company to fund the Scheduled Earn-Out Payment.
SECTION 6.12. POST-CLOSING OBLIGATIONS. (a) Within 20 days after the
Closing Date, the Company shall cause such additional Company Pledgors to pledge
and grant a first and prior security interest in and Lien on their respective
membership interest in the Company, and to execute and deliver a Company Pledge
Agreement (together with appropriate UCC financing statements), so that the
Company shall have a first and prior security interest in and lien on at least
75% of the Capital Stock of the Company.
(b) Within 20 days after the Closing Date, the Company will promptly,
and will cause each of the Loan Parties to promptly, take such action as may be
required in connection with the execution, delivery and performance Loan
Documents pertaining to Caminus Energy Limited, and any other subsidiaries that
may be located in the United Kingdom in accordance with the laws, rules,
regulations and customs of the United Kingdom.
ARTICLE VII.
NEGATIVE COVENANTS
So long as any Commitment or Loan is outstanding and until payment in
full of all amounts payable by the Company hereunder or under the Notes, the
Company covenants and agrees with the Lender that it, or any of its
Subsidiaries, will not:
SECTION 7.01. LIENS. Create, incur, assume, or suffer to exist, any
Lien, upon or with respect to any of its properties, assets or revenues, whether
now owned or hereafter acquired, except:
(a) Liens created pursuant to the Security Documents;
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(b) Liens in existence on the date hereof and listed in Part B of
Schedule 4 hereto; provided that no such permitted Liens are spread to cover any
additional property after the Closing Date and that the amount of Indebtedness
secured thereby is not increased;
(c) Liens imposed by any Governmental Authority for taxes, assessments
or other charges or levies (i) not yet due and payable, or (ii) which are being
contested in good faith by appropriate proceedings for which appropriate
reserves are maintained on the books of the Company and its Subsidiaries in
accordance with GAAP;
(d) Liens imposed by law, such as mechanics', materialmen's,
landlords', warehousemen's, and carriers' Liens, and other similar Liens,
securing obligations incurred in the ordinary course of business which are not
past due for more than sixty (60) days or which are being contested in good
faith by appropriate proceedings and for which appropriate reserves are
maintained on the books of the Company and its Subsidiaries in accordance with
GAAP;
(e) Pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
(f) Liens, deposits or pledges to secure the performance of bids,
tenders, trade contracts (other than contracts for the payment of money),
leases, public or statutory obligations, surety, stay, appeal, indemnity,
performance or other similar bonds, or other similar obligations arising in the
ordinary course of business;
(g) Judgment and other similar Liens arising in connection with court
proceedings, provided the execution or other enforcement of such Liens is
effectively stayed and the claims secured thereby are being actively contested
in good faith and by appropriate proceedings;
(h) Easements, rights-of-way, restrictions and other similar
encumbrances which, in the aggregate, do not interfere with the occupation, use,
and enjoyment by the Company or any of its Subsidiaries of the property or
assets encumbered thereby in the normal course of its business or materially
impair the value of the property subject thereto;
(i) Liens securing Indebtedness of the Company and its Subsidiaries
permitted by Section 7.02(c) hereof which are incurred to finance the
acquisition of fixed or capital assets used or useful in the Company Business;
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition of such fixed or capital assets, (ii) such Liens do not at any
time encumber any property other than the property financed by such
Indebtedness, (iii) the amount of Indebtedness secured thereby is not increased,
and (iv) the principal amount of Indebtedness secured by any such Lien shall at
no time exceed 100% of the original purchase price of such property of such
property at the time it was acquired.
SECTION 7.02. INDEBTEDNESS. Create, incur, assume, or suffer to exist,
any Indebtedness, except:
(a) Indebtedness of (i) the Company under this Agreement, and (ii) the
Subsidiaries under the Subsidiary Guarantees;
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(b) Indebtedness of the Company to any Subsidiary Guarantor up to an
aggregate amount of $500,000 at any one time outstanding, and of any Guarantor
Subsidiary to the Company or any other Subsidiary Guarantor;
(c) Indebtedness of the Company and any of its Subsidiaries incurred to
finance the acquisition of fixed or capital assets (whether pursuant to a loan,
a Capital Lease or otherwise) in an aggregate principal amount not exceeding, as
to the Company and its Subsidiaries, $400,000 at any time outstanding;
(d) Indebtedness outstanding on the date hereof and listed in Part A of
Schedule 4 hereto, and any refinancing, refundings, renewals or extensions (but
no increase) thereof (excluding, however, immediately upon making the Loans
hereunder, the Refinanced Loan Amount and the Deferred Earn-Out Amount to be
repaid on the Closing Date);
(e) Guarantee Obligations of the Company or any of its Subsidiaries but
only to the extent permitted pursuant to Section 7.07 hereof;
(f) Indebtedness of the Company to SS&C pursuant to the SS&C Documents;
and
(g) Additional Indebtedness of the Company or any of its Subsidiaries
not exceeding $100,000 in the aggregate principal amount at any one time
outstanding.
SECTION 7.03. DISPOSITION OF ASSETS. Convey, sell, lease, assign,
transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, receivables and leasehold interests), whether
now owned or hereafter acquired, except (i) property not material to the conduct
of the Company Business which is disposed of in the ordinary course of business
(provided that the Net Proceeds of such transaction are applied to the
prepayment of the Loans as provided in Section 3.04(c) hereof), (ii) the sale of
inventory in the ordinary course of the Company Business, and (iii) as otherwise
permitted by the Security Documents.
SECTION 7.04. CONSOLIDATIONS, MERGERS, ETC. Liquidate or dissolve,
consolidate with, or merge into or with, any other Person, or purchase or
otherwise acquire all or any substantial part of the assets of any Person (or of
any division thereof) except (i) any Subsidiary may liquidate or dissolve
voluntarily into, and may merge with and into, the Company or any Wholly-Owned
Subsidiary of the Company, and the assets or Capital Stock of any theretofore
existing Subsidiary may be purchased or otherwise acquired by the Company or any
other Wholly-Owned Subsidiary (with the Company or such Wholly-Owned Subsidiary
to be the surviving corporation in any such transaction), and (ii) Permitted
Acquisitions pursuant to Section 7.05 hereof.
SECTION 7.05. INVESTMENTS AND PERMITTED ACQUISITIONS. Make any loan,
advance or extension of credit to any Person, or enter into any arrangement for
the purpose of providing funds or credit to any Person, or purchase or otherwise
acquire any capital stock, asset, obligation or other security of, make any
capital contribution to, or acquire all or substantially all of the assets or
securities of, or otherwise invest or acquire any interest in, any Person (any
of the foregoing, an "Investment"), except for (i) Investments in Cash
Equivalents; and (ii) Acquisitions on and subject to the following terms and
conditions satisfactory to the Lender (each Acquisition
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which satisfies each of the following conditions to the satisfaction of the
Lender, a "Permitted Acquisition"):
(A) Such Acquisition and all transactions related thereto
shall be consummated in accordance with applicable
Requirements of Law.
(B) The Seller or the division the assets of which are the
subject of the Acquisition shall be in engaged in a line of
business similar to the Company Business, and all of the
operations of such Seller or such division shall be conducted,
and all of the related properties shall be located, in the
United States.
(C) The Company shall have delivered evidence reasonably
satisfactory to the Lender that, after giving effect to such
Acquisition, the Company and its Subsidiaries are in pro forma
compliance with the financial covenants set forth in Section
7.14 hereof, calculated as if the Acquisition had been
consummated on the first day of the most recently ended period
of four Fiscal Quarters of the Company with respect to which
period the Company shall have delivered the financial
information required pursuant to Section 6.07(b) hereof.
(D) If such Acquisition involves the purchase of stock or
other ownership interests, the same shall be effected in such
a manner as to assure that the acquired entity becomes a
Subsidiary of the Company and that the Company shall own,
directly or indirectly, not less than one hundred percent
(100%) of all such stock or other ownership interests.
(E) All other assets and properties acquired in connection
with any such Acquisition shall be free and clear of any
liens, charges and other encumbrances other than permitted
under Section 7.01 hereof.
(F) Such Acquisition is consummated without the use of any
Loan proceeds.
(G) Immediately before and after giving effect thereto, no
Event of Default shall have occurred and be continuing.
With respect to each Permitted Acquisition, (1) the Company shall have
delivered updated financial projections for the Company and its Subsidiaries
giving effect to such Acquisition that are reasonably satisfactory to the
Lender, (2) the Company shall have delivered copies to the Lender of the
applicable Seller's most recent annual income statement and balance sheet,
together with the audit opinion thereon, if any, of the applicable Seller's
independent accountants, together with available interim financial statements,
(3) the Lender shall have been afforded not less than 20 days to complete to
their satisfaction the due diligence review with respect to the proposed
Acquisition, including without limitation a field examination of all books and
records of the applicable Seller, its accounts and facilities, (4) no later than
fourteen (14) days (or such shorter period as may be reasonably practicable, if
approved by the Lender) prior to the consummation of any such Acquisition or, if
earlier, ten (10) days after the execution and delivery of the related
Acquisition Agreement, the Company shall have delivered to the Lender copies of
executed counterparts of such Acquisition Agreement, together with all schedules
thereto, the forms of any additional agreements or instruments to be executed at
the closing
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thereunder (to the extent available), (5) the Company shall have executed and
caused to be executed all UCC financing statements and additional Loan
Documents, as applicable (including, without limitation, Subsidiary Guarantees,
Subsidiary Security Agreements, Subsidiary Pledge Agreements, Mortgages,
Landlord's Waiver and amendments or joinders thereto), and provided certified
copies of the resolutions of the Board of Directors of the Company or the Board
of Directors, partners or board of directors of the applicable Subsidiary
authorizing such Permitted Acquisition, evidence of insurance, legal opinions
and such other certificates and documents as shall be reasonable requested by
the Lender.
SECTION 7.06. RESTRICTED PAYMENTS. Make any dividends (in cash,
property or obligations) on, or other payments or distributions on account of,
or the setting apart of money for a sinking or other analogous fund for, or the
purchase, redemption, retirement or other acquisition of, any Capital Stock of
stock of the Company, or make any payment to any Person, such as "phantom stock"
payments, where the amount thereof is calculated with reference to the fair
market or equity value of the Company; except (i) in connection with Section
7.11(iv) hereof and (ii) that the foregoing shall not restrict the Company from
declaring and making cash dividends to its members (the "Tax Reimbursement
Distribution") in respect of the operations of the Company and ZAI*Net for
Fiscal Year 1998, in an amount not exceeding their pro-rata share of the Tax
Amount corresponding thereto, and in addition the Company may (A) from time to
time declare and make a cash dividend to its members in an amount equal to the
Quarterly Estimated Tax Amount for the Fiscal Quarter of the Company's Fiscal
Year with respect to which such dividend is being made, and (B) if the aggregate
amount of such cash dividends with respect to a Fiscal Year is less than the
aggregate Tax Amount of the Company for such Fiscal Year, the Company may at any
time following the end of such Fiscal Year declare and make cash dividends to
its members in an amount equal to the balance of such aggregate Tax Amount, but
in all cases only to the extent that (i) there is cash on hand in the Company,
after the Company, in its reasonable discretion sets aside reserves for
operations and contingencies, (ii) at the time of such Tax Reimbursement
Distribution, the Company shall have made all scheduled loan payments required
under this Agreement, (iii) the Company, for such Fiscal Year, is not treated
for federal income tax purposes as a corporation required to file its own
federal income tax return, and (iv) immediately before and after giving effect
to such Tax Reimbursement Distribution, no Default is in existence or would
occur.
SECTION 7.07. GUARANTEE OBLIGATIONS. Incur, or suffer to exist, or
assume any Guarantee Obligations, except the Subsidiary Guarantees.
SECTION 7.08. TRANSACTION WITH AFFILIATES. Enter into any transaction
(including, without limitation, the purchase, sale, or exchange of property or
the rendering of any service) with any Affiliate, except that (i) any Affiliate
who is an individual may serve as a director, officer, employee or consultant of
the Company or any of its Subsidiaries and receive reasonable compensation for
his or her services in such capacity, and (ii) the Company and its Subsidiaries
may enter into transactions (other than extensions of credit by the Company or
any of its Subsidiaries to an Affiliate) providing for the leasing of property,
the rendering or receipt of services or the purchase or sale of inventory and
other property in the ordinary course of business if the monetary or business
consideration arising therefrom would be substantially as advantageous to the
Company and its Subsidiaries as the monetary or business consideration which
would obtain in a comparable transaction with a Person not an Affiliate, (iii)
the Company
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shall be permitted to perform its obligations under the SS&C Documents,
including without limitation the sale of Series B Membership Interests to SS&C
upon the exercise of the SS&C Option pursuant to the SS&C Documents, (iv) the
Company shall be permitted to pay Management Fees (subject to the terms and
conditions of the Management Subordination Agreement) and (v) the Company shall
be permitted to make intercompany transfers to its Subsidiaries, provided that
any transfer in excess of $100,000 (either on an individual basis or in the
aggregate at any time outstanding) shall be made as a loan from the Company to
the Subsidiary, evidenced by a promissory note on arm's length terms and
conditions and which promissory note is collaterally pledged by the Company to
the Lender.
SECTION 7.09. LINES OF BUSINESS. Engage in any line or lines of
business activity other than the Company Business.
SECTION 7.10. USE OF PROCEEDS. Use the proceeds of the Loans hereunder
for any other purpose than as specified in Section 2.02 hereof.
SECTION 7.11. ISSUANCE AND SALE OF SECURITIES. Issue, distribute,
redeem, repurchase, acquire or sell any Capital Stock or securities convertible
into or exercisable for any such Capital Stock, except (i) in connection with
any Permitted Acquisition, (ii) for the sale of Series B Membership Interests to
SS&C upon the exercise of the SS&C Option, (iii) in connection with any employee
option plans in existence on the date hereof, (iv) for the repurchase of Capital
Stock from departing employees up to an aggregate amount of $100,000 at any
time, and (v) for the issuance of Capital Stock of a Subsidiary to the Company,
provided that such Subsidiary is a Wholly-Owned Subsidiary and a Subsidiary
Guarantor and that such Capital Stock is subject to a Subsidiary Pledge
Agreement.
SECTION 7.12. NEGATIVE PLEDGE CLAUSES. Enter into any agreement other
than this Agreement and the other Loan Documents which prohibits or limits the
ability of the Company or any of the Subsidiaries to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, other than Financing Leases and similar
arrangements otherwise permitted hereunder solely to the extent of the property
subject thereto.
SECTION 7.13. ACCOUNTING CHANGES. Change its Fiscal Year end or make
any material change in its accounting practices, except as otherwise required by
GAAP.
SECTION 7.14. FINANCIAL COVENANTS (a) Consolidated Fixed Charges Ratio.
Permit the Consolidated Fixed Charges Ratio, determined as at the last day of
each Fiscal Quarter in each of the following periods, to be less than the
applicable ratio for such period as follows:
Closing Date through September 30, 1999 1.00 to 1.00
December 31, 1999 1.50 to 1.00
March 31, 2000 and thereafter 2.00 to 1.00
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(b) Consolidated Senior Leverage Ratio. Permit the Consolidated Senior
Leverage Ratio at the end of each Fiscal Quarter to be less than 2.50 to 1.00.
(c) Capital Expenditures. Make or commit to make any Consolidated
Capital Expenditures (whether paid in cash or accrued as liabilities), except
for (i) Permitted Acquisitions, (ii) any asset acquired in connection with
normal replacement and maintenance programs properly expensed to current
operations and (iii) expenditures in the ordinary course of business not
exceeding $3,000,000, in the aggregate for the Company and its Subsidiaries,
during each Fiscal Year.
SECTION 7.15. MODIFICATION OF CERTAIN DOCUMENTS. (a) Amend, modify or
change, or consent or agree to any amendment, modification or change to, any of
the terms of the Capitalization Documents, the Operating Agreement, the SS&C
Documents, the Caminus Acquisition Documents, the Zai*Net Acquisition Documents
and the Refinanced Loan Documents, in any manner that might reasonably be
expected to be adverse to the interests of the Lender, and in any case, upon
prior written notice to the Lender.
(b) The Company shall not, without the Lender's consent, delete or
otherwise modify or change the notice on the Company's membership interest
register regarding the Lender's security interest in and Lien on the membership
interests of certain members reflected on such register.
SECTION 7.16. OPTIONAL PAYMENTS. Make any optional payment or
prepayment on, or redemption or repurchase of, or the setting aside of any
sinking fund for or the making of any contribution for the payment of, any
Indebtedness of the Company or its Subsidiaries except for the Indebtedness
hereunder.
ARTICLE VIII.
EVENTS OF DEFAULT AND REMEDIES
SECTION 8.01. EVENTS OF DEFAULT. If one or more of the following events
("Events of Default") shall occur:
(a) The Company shall fail to pay any principal amount of any Note as
and when due and payable (whether at stated maturity or upon mandatory or
optional prepayment), or the Company shall fail to pay interest on any Note or
any other amount payable under this Agreement or any of the other Loan Documents
within three (3) Business Days after such interest or other amount is due and
payable;
(b) Any representation or warranty made or deemed made by any Loan
Party in any of the Loan Documents or in any certificate, document, financial or
other statement furnished at any time under or in connection with any of the
Loan Documents shall prove to have been false or misleading in any material
respect on or as of the date made or deemed made or furnished;
(c) The Company shall default in the performance of any term, covenant
or agreement contained in Section 6.07(d)(1), Section 6.07(j)(1), or in Article
VII hereof;
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(d) The Company shall default in the performance of any term, covenant
or agreement (other than those specified in Section 8.01(c) hereof) contained in
any of the Loan Documents to which it is a party, and such default shall
continue unremedied for a period of thirty (30) days after notice thereof to the
Company by the Lender;
(e) Any Loan Party (other than the Company) shall default in the
performance of any term, covenant or agreement contained in any of the Loan
Documents to which it is a party, and such default shall continue unremedied for
a period of thirty (30) days after notice thereof to such Loan Party by the
Lender;
(f) The Company or any of the Guarantors shall (i) default in the
payment, when due (which default remains uncured after expiration of applicable
cure or notice periods), of any amount payable in respect of any Indebtedness of
the Company or such Guarantor, whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise (provided that "Indebtedness" for
purposes of this Section 8.01(f) shall (A) mean Indebtedness of the Company or
any Guarantor which is in excess of $50,000, in the aggregate, and (B) exclude
Indebtedness relating to accounts payable (other than for borrowed money) of the
Company or any Guarantor; or (ii) fail to perform or observe any other term,
covenant or condition on their part to be performed or observed under any
agreement or instrument relating to any such Indebtedness (as limited in clause
(i) of this Section 8.01(f)), when required to be performed or observed, if,
with the giving of any notice or the lapse of time or both, the effect of such
failure to perform or observe is to permit the holder of such Indebtedness (or a
trustee or agent on behalf of such holder) to accelerate the maturity thereof or
to have caused any such Indebtedness to be declared due and payable or required
to be prepaid prior to the stated maturity thereof; provided, however, that
nothing in this Section 8.01(f) shall affect the provisions of Sections 8.01(a),
8.01(g) or 8.01(h) hereof;
(g) Any of the Company or the Guarantors (i) shall generally not, or
shall be unable to, or shall admit in writing its inability to pay its debts as
such debts become due; or (ii) shall make a general assignment for the benefit
of creditors, petition or apply to any tribunal for the appointment of a
custodian, receiver, trustee or other similar official for it or a substantial
part of its assets; or (iii) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution, or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (iv)
shall have any such petition or application filed or any such proceeding
commenced against it, in which an order for relief is entered or adjudication or
appointment is made and which remains undismissed for a period of sixty (60)
days or more; or (v) by any act or omission shall indicate its consent to,
approval of, or acquiescence in any such petition, application, or proceeding,
or order for relief, or the appointment of a custodian, receiver, trustee or
other similar official for all or any substantial part of its properties; or
(vi) shall suffer any such custodianship, receivership, or trusteeship to
continue undischarged for a period of sixty (60) days or more;
(h) One or more judgments, decrees or orders for the payment of money
in excess of $50,000 in the aggregate shall be rendered against the Company
and/or any Guarantor and such judgments, decrees or orders shall continue
unsatisfied and in effect for a period of thirty (30) consecutive days without
being vacated, discharged, satisfied, or stayed or bonded pending appeal;
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(i) Any of the Security Documents shall at any time after its execution
and delivery and for any reason cease (other than by reason of the actions or
omissions of the Lender), to create a valid and perfected first priority
security interest in and to the property purported to be subject to such
Security Document, subject to any exceptions permitted hereunder and thereunder;
or any of the Loan Documents shall at any time after its execution and delivery
for any reason cease to be in full force and effect (other than in accordance
with its terms) or shall be declared null or void; or the validity or
enforceability of any of the Loan Documents shall be contested by any party
thereto (other than the Lender);
(j) (i) Any Termination Event shall occur, or (ii) any Plan shall incur
an accumulated funding deficiency (as defined in Section 412 of the Code or
Section 302 of ERISA), whether or not waived, in excess of $100,000, or (iii)
the Company or any ERISA Affiliate shall fail to pay when due an amount which it
shall have become liable to pay to the PBGC, any Plan or a trust established
under Title IV of ERISA, or (iv) a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating that a Plan must be
terminated or have a trustee appointed to administer any Plan, or (v) the
Company or an ERISA Affiliate suffers a partial or complete withdrawal from a
Multiemployer Plan or is in "default" (as defined in Section 4219 (c)(5) of
ERISA) with respect to payments to a Multiemployer Plan;
(k) There shall have been asserted against the Company or any of its
Subsidiaries claims or liabilities, whether accrued, absolute or contingent,
based on or arising from the generation, storage, transport, handling or
disposal of Hazardous Materials by the Company, such Subsidiary or any
predecessor in interest of the Company or such Subsidiary, or relating to any
site or facility owned, operated or leased by the Company or such Subsidiary,
which claims or liabilities (insofar as they are payable by the Company or such
Subsidiary, but after deducting any portion thereof which is reasonably expected
to be paid by other credit worthy Persons jointly and severally liable
therefor), in the reasonable judgment of the Lender are reasonably likely to be
determined adversely to the Company or such Subsidiary, and the amount thereof
is, singly or in the aggregate, reasonably likely to have a Material Adverse
Effect;
(l) The Investor Group together with ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall cease to own
or control, in the aggregate, at least 60% of the Capital Stock of the Company;
(m) Either GFI or OCM Caminus Investment, Inc. shall sell, transfer,
assign or convey in any manner whatsoever any portion of their membership
interest in the Company (other than to their Affiliates; provided that
concurrently with such transfer such Affiliate collaterally pledges to the
Lender the membership interest received, pursuant to a pledge agreement
substantially in the form of the Company Pledge Agreement);
(n) The Investor Group shall default in the payment, when due, of the
additional capital contribution to the Company pursuant to the Operating
Agreement for purposes of the Company's obligation to make the Scheduled
Earn-Out Payment; or
(o) The Company shall fail to ensure that the Lender shall at all times
have a first and prior security interest in and Lien on at least 75% of the
Capital Stock of the Company.
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THEN, and in any such event, the Lender may, by notice to the Company,
(i) terminate the Commitments, whereupon the same shall forthwith terminate; and
(ii) declare the aggregate outstanding principal amount of the Notes, all
interest thereon, and all other amounts payable under this Agreement (including
without limitation all amounts payable pursuant to Section 3.09) and the other
Loan Documents to be forthwith due and payable, whereupon the aggregate
principal amount of the Notes, all such interest, and all such other amounts
shall become and be forthwith due and payable, without presentment, demand,
protest, or further notice of any kind, all of which are hereby expressly waived
by the Company; provided, however, that if there shall be an Event of Default
under subsection 8.01(g) hereof, the Commitments shall immediately be deemed
terminated and the aggregate outstanding principal amount of the Notes, all
interest thereon, and all other amounts payable under this Agreement and the
other Loan Documents shall be immediately due and payable, without notice,
declaration, presentment, demand, protest or notice of any kind, all of which
are hereby expressly waived by the Company.
SECTION 8.02. REMEDIES ON EVENT OF DEFAULT. If any of the Company's
obligations hereunder or under the Notes have been, or are deemed to be,
accelerated pursuant to Section 8.01, the Lender may:
(i) enforce the rights and remedies granted to the Lender
under the Security Documents in accordance with their
respective terms; and
(ii) enforce any of the rights or remedies granted to the
Lender under any of the other Loan Documents and any other
rights or remedies accorded to the Lender at equity or law, by
virtue of statute or otherwise.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01. NOTICES, ETC. All notices, communications, requests and
demands to or upon the respective parties hereto to be effective shall be in
writing and, unless otherwise expressly provided herein, shall be deemed to have
been duly given or made when delivered by hand, or five (5) days after deposited
in the mail, air postage prepaid, or in the case of notice by telecopier (fax),
when sent, or in the case of overnight courier service, one Business Day after
delivery to a nationally recognized overnight courier service, addressed as
follows or to such other address as may be hereafter notified by the respective
parties to this Agreement and any future holders of the Notes:
If to the Company:
Caminus LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel. No.: ▇▇▇-▇▇▇-▇▇▇▇/3603
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇ or ▇▇▇-▇▇▇-▇▇▇▇
Attention: Mr. ▇▇▇▇ ▇▇▇▇▇▇
Chief Financial Officer
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with a copy (except for routine
communications) to:
▇▇▇▇▇▇▇ ▇▇▇▇, Esq.
Irell & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇/15
If to the Lender:
Fleet Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. : (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
with a copy (except for routine
communications) to:
▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Nixon, Hargrave, Devans & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 9.02. NO WAIVER; REMEDIES. No failure on the part of the Lender
to exercise, and no delay in exercising, and no course of dealing with respect
to, 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 right hereunder or under any of the other Loan Documents preclude any other
or further exercise thereof or the exercise of any other right, power or
privilege. The remedies provided herein and in the other Loan Documents are
cumulative and not exclusive of any remedies provided by law.
SECTION 9.03. AMENDMENTS, ETC. Except as otherwise expressly provided
in this Agreement, any provision of this Agreement may be modified or
supplemented only by an instrument in writing signed by the Company and the
Lender, and any provision of this Agreement may be waived by the Lender only by
an instrument in writing signed by the Lender.
SECTION 9.04. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, except
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that the Company may not transfer or assign any of its rights or obligations
hereunder or under the Notes without the prior written consent of the Lender.
SECTION 9.05. ASSIGNMENTS AND PARTICIPATION. (a) The Lender shall have
the unrestricted right at any time or from time to time, and without the
Company's or any Subsidiary Guarantor's consent, to assign all or any portion of
its rights and obligations hereunder to one or more Lenders or other financial
institutions (each, a "Purchasing Lender"), and the Company and each Subsidiary
Guarantor agrees that it shall execute, or cause to be executed, such documents,
including without limitation, amendments to this Agreement and to any other Loan
Documents executed in connection herewith as the Lender shall deem necessary to
effect the foregoing. In addition, at the request of the Lender and any such
Purchasing Lender, the Company shall issue one or more new promissory notes, as
applicable, to any such Purchasing Lender and, if the Lender has retained any of
its rights and obligations hereunder following such assignment, to the Lender,
which new promissory notes shall be issued in replacement of, but not in
discharge of, the liability evidenced by the Notes held by the Lender prior to
such assignment and shall reflect the amount of the respective Commitments and
Loans held by such Purchasing Lender and the Lender after giving effect to such
assignment. Upon the execution and delivery of appropriate assignment
documentation, amendments and any other documentation required by the Lender in
connection with such assignment, and the payment by Purchasing Lender of the
purchase price agreed to by the Lender, and such Purchasing Lender, such
Purchasing Lender shall be a party to this Agreement and shall have all of the
rights and obligations of the Lender hereunder (and under any and all other Loan
Documents in connection herewith) to the extent that such rights and obligations
have been assigned by the Lender pursuant to the assignment documentation
between the Lender and such Purchasing Lender, and the Lender shall be released
from its obligations hereunder and thereunder to a corresponding extent.
(b) The Lender shall have the unrestricted right at any time and from
time to time, and without the consent of or notice to the Company or any
Subsidiary Guarantor, to grant to one or more lenders or other financial
institutions (each, a "Participant") participating interests in any Loans owing
to the Lender, any Notes held by the Lender, any Commitment of the Lender or any
other interest of the Lender hereunder and under the other Loan Documents. In
the event of any such grant by the Lender of a participating interest to a
Participant, whether or not upon notice to the Company, the Lender shall remain
responsible for the performance of its obligations hereunder and the Company
shall continue to deal solely and directly with the Lender in connection with
the Lender's rights and obligations hereunder. The Lender may furnish any
information concerning the Company in its possession from time to time to
prospective Participants, provided that the Lender shall require any such
prospective Participant to agree in writing to maintain the confidentiality of
such information.
(c) Nothing herein shall prohibit the Lender from pledging or assigning
any Note to any Federal Reserve Bank in accordance with applicable law. No such
assignment shall release the assigning Lender from its obligations hereunder.
SECTION 9.06. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) Without
limitation of the Company's obligations pursuant to Section 9.06(b) hereof, the
Company agrees to pay or reimburse promptly the Lender for (i) all reasonable
out-of-pocket costs and expenses of the Lender (including, without limitation,
the reasonable fees and expenses of Nixon, Hargrave,
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Devans & ▇▇▇▇▇ LLP, special New York counsel to the Lender, and such local
counsel retained by the Lender or by special New York counsel in connection with
(A) the negotiation, preparation, execution and delivery of this Agreement and
the other Loan Documents and extensions of credit hereunder, (B) title insurance
and title insurance review, (C) any modification, supplement or waiver of any of
the terms of this Agreement or any of the other Loan Documents, and (D) the
Company's termination of this Agreement and voluntary prepayment in full of the
Loans hereunder; (ii) all reasonable out-of-pocket costs and expenses of the
Lender (including, without limitation, reasonable actual attorneys' fees and
expenses) in connection with (A) any Default and any enforcement or collection
proceedings resulting therefrom or in connection with the negotiation of any
restructuring or "work-out" (whether or not consummated) of the obligations of
the Company hereunder, and (B) the enforcement of this Section 9.06; (iii) all
transfer, stamp, documentary or other similar taxes, assessments or charges
levied by any Governmental Authority in respect of this Agreement or any of the
other Loan Documents or any other document referred to herein or therein and all
costs, expenses, taxes, assessments and other charges incurred in connection
with any filing, registration, recording or perfection of any security interest
contemplated by any of the Loan Documents or any other document referred to
herein or therein; and (iv) all costs, expenses and other charges in respect of
title insurance procured with respect to the Liens created pursuant to the
Mortgages.
(b) The Company hereby agrees to indemnify the Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the transactions contemplated hereby, (ii) any Loan or the use
of the proceeds therefrom, (iii) any actual or alleged presence or release of
Hazardous Materials on or from any Real Property or any other property owned or
operated by the Company or any of its Subsidiaries, or any Environmental
Liability related in any way to the Company or any of its Subsidiaries, or (iv)
any actual or prospective claim, litigation, investigation or proceeding
relating to any of the foregoing, whether based on contract, tort or any other
theory and regardless of whether any Indemnitee is a party thereto; provided
that such indemnity shall not, as to any Indemnitee, be available to the extent
that such losses, claims, damages, liabilities or related expenses are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee.
(c) To the extent that the Company fails to pay any amount required to
be paid by it to the Lender under Section 1.06(a) or (b), the Lender severally
agrees to pay to the Lender, as the case may be, the Lender's pro rata share
(determined as of the time that the applicable unreimbursed expense or indemnity
payment is sought) of such unpaid amount; provided that the unreimbursed expense
or indemnified loss, claim, damage, liability or related expense, as the case
may be, was incurred by or asserted against the Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Company shall not
assert, and each hereby waives, any claim against any Indemnitee, on any theory
of liability, for special, indirect,
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consequential or punitive damages (as opposed to direct or actual damages)
arising out of, in connection with, or as a result of, this Agreement or any
agreement or instrument contemplated hereby, the transactions hereunder, any
Loan or the use of the proceeds thereof.
(e) All amounts due under this Section 9.06 shall be payable promptly
after written demand therefor.
SECTION 9.07. SUBMISSION TO JURISDICTION. THE COMPANY HEREBY
IRREVOCABLY CONSENTS TO THE NONEXCLUSIVE JURISDICTION AND VENUE OF ANY STATE OR
FEDERAL COURT SITTING IN NEW YORK COUNTY OVER ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES, ANY OF THE SECURITY DOCUMENTS
TO WHICH IT IS PARTY AND OTHERWISE ARISING OUT OF RELATING TO THE TRANSACTIONS
CONTEMPLATED HEREBY, AND THE COMPANY HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS
IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH
STATE OR FEDERAL COURT. THE COMPANY WAIVES ANY OBJECTION TO ANY ACTION OR
PROCEEDING IN ANY STATE OR FEDERAL COURT SITTING IN NEW YORK COUNTY ON THE BASIS
OF FORUM NON CONVENIENS. THE COMPANY HEREBY WAIVES PERSONAL SERVICE OF ANY
PROCESS IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING AND AGREES THAT THE
SERVICE THEREOF MAY BE MADE BY CERTIFIED OR REGISTERED MAIL DIRECTED TO THE
COMPANY AT THE ADDRESS SET FORTH IN SECTION 9.01 HEREOF. THE COMPANY AGREES THAT
A FINAL 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. THE COMPANY FURTHER AGREES THAT ANY ACTION OR PROCEEDING
BROUGHT AGAINST THE LENDER SHALL BE BROUGHT ONLY IN ANY STATE OR FEDERAL COURT
SITTING IN NEW YORK COUNTY. THE COMPANY FURTHER AGREES THAT, AT THE DISCRETION
OF THE LENDER, THE LENDER MAY SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW AND MAY BRING ANY ACTION OR PROCEEDING AGAINST THE COMPANY OR ITS
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
SECTION 9.08. WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND THE LENDER
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER ARISING IN
CONTRACT, TORT OR OTHERWISE.
SECTION 9.09. GOVERNING LAW. THIS AGREEMENT AND THE NOTES SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY CHOICE OF LAW RULES WHICH WOULD REQUIRE THE APPLICATION OF
THE LAWS OF ANY OTHER JURISDICTION.
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SECTION 9.10. SURVIVAL. The obligations of the Company under Sections
3.06, 3.09, 3.10 and 9.06 hereof and the obligations of the Lender under Section
9.05 hereof shall survive the repayment of the Loans and the termination of the
Commitments.
SECTION 9.11. CAPTIONS. The table of contents and captions, article and
section headings appearing herein are included solely for convenience of
reference and are not intended to affect the interpretation of any provision of
this Agreement.
SECTION 9.12. SEVERABILITY OF PROVISIONS. If any provision hereof shall
be held to be invalid, illegal or unenforceable in any jurisdiction, then, to
the fullest extent permitted by law, (i) the other provisions hereof shall
remain in full force and effect in such jurisdiction, and (ii) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
SECTION 9.13. ENTIRE AGREEMENT. This Agreement, the Notes, each of the
other Loan Documents to which the Company is a party represent the entire
agreement among the Company, the Lender with respect to the subject matter
hereof, and this Agreement, the Notes, each of the other Loan Documents to which
the Company is a party supersede any and all prior discussions, commitments and
agreements among the Company, the Lender, the Lender with respect to such
subject matter, including without limitation that certain letter and preliminary
term sheet from the Lender to the Company, dated May 19, 1999.
SECTION 9.14. USURY LIMITATIONS. All Loan Documents are hereby
expressly limited so that in no contingency or event whatsoever, whether by
reason of acceleration of maturity of the Indebtedness evidenced hereby or
otherwise, shall the amount paid or agreed to be paid to the Lender for the use
or the forbearance of the Indebtedness evidenced hereby exceed the maximum
permissible under applicable law. As used herein, the term "applicable law"
shall mean the law in effect as of the date hereof provided, however, that in
the event there is a change in the law which results in a higher permissible
rate of interest, then such new law shall govern as of its effective date. In
this regard, it is expressly agreed that it is the intent of the Company and the
Lender in the execution, delivery and acceptance of this Agreement and the Notes
to contract in strict compliance with the laws of the State of New York from
time to time in effect. If, under or from any circumstances whatsoever,
fulfillment of any provision hereof or of any of the Loan Documents at the time
of performance of such provision shall be due, shall involve transcending the
limit of such validity prescribed by applicable law, then the obligation to be
fulfilled shall automatically be reduced to the limits of such validity, and if
under or from circumstances whatsoever the Lender should ever receive as
interest an amount which would exceed the highest lawful rate, such amount which
would be excessive interest shall be applied to the reduction of the principal
balance evidenced hereby and not to the payment of interest.
SECTION 9.15. INTERPRETATION AND CONSTRUCTION. The parties hereto
acknowledge and agree that (i) each party and its counsel reviewed and
negotiated the terms and provisions of this Agreement and the other Loan
Documents and have contributed to their revision; (ii) the rule of construction
to the effect that any ambiguities are resolved against the drafting party shall
not be employed in the interpretation of this Agreement and the other Loan
Documents; and (iii) the terms and provisions of this Agreement and the other
Loan Documents shall be construed fairly
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as to all parties hereto and thereto, regardless of which party was generally
responsible for the preparation of this Agreement and the other Loan Documents.
SECTION 9.16. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, all of which, when taken together, shall constitute one
and the same instrument, and any party hereto may execute this Agreement by
signing any such counterpart.
SECTION 9.17. CONFIDENTIALITY. The Lender shall hold all non-public
information obtained pursuant to the requirements of this Agreement which has
been identified as such by the Company in accordance with its customary
procedures for handling confidential information of this nature and in
accordance with safe and sound lending practices and may, subject to Section
9.05(b), make disclosure reasonably required by a bona fide transferee or
participant in connection with the contemplated transfer of any Note or
participation therein or as required or requested by any Governmental Authority
or representative thereof or pursuant to legal process.
[SIGNATURE PAGES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in New York, New York by their proper and duly
authorized officers as of the day and year first above written.
COMPANY:
CAMINUS LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Financial Officer
LENDER:
FLEET BANK, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans
and Eurodollar Loans:
FLEET BANK, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Address for Notices:
FLEET BANK, N.A.
1185 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
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Schedule A
COMMITMENTS
NAME OF LENDER REVOLVING LOAN WORKING CAPITAL LOAN TOTAL
COMMITMENT COMMITMENT
-------------------- -------------- -------------------- -----------
Fleet Bank, N.A.
$2,500,000 $2,500,000 $5,000,000
TOTAL: $2,500,000 $2,500,000 $5,000,000
--------- --------- ---------
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Schedule 1(A)
CAPITALIZATION
PART A - MEMBERSHIP INTERESTS
See Attachment A for a list of outstanding Series A Membership
Interests.
PART B - OUTSTANDING SUBSCRIPTIONS, OPTIONS, WARRANTS, ETC.
See Attachment B and Attachment C for a list of outstanding Caminus
Options (exercisable for Series B Membership Interests), GFI Options
(exercisable for Series C Membership Interests) and outstanding incentive
options (exercisable for Series B Membership Interests) granted to employees and
other service providers.
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Schedule 1(B)
SUBSIDIARIES
SUBSIDIARY JURISDICTION OF REGISTERED OWNER NUMBER OF SHARES(1)
INCORPORATION
-------------------- --------------- ---------------- ------------------
Caminus Energy Limited England Caminus Limited 99 ordinary
▇▇▇▇▇ ▇▇▇▇▇ 1 ordinary
Caminus Limited England Caminus LLC 950 ordinary
Zai Net Software Limited England Caminus Limited 100 ordinary
Caminus Consultants
Limited England Caminus Limited 100 ordinary
----------------------------
(1) Unless otherwise indicated, for each Subsidiary, number of shares owned
by the identified registered owner represents 100% of the issued and
outstanding capital stock of such subsidiary.
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Schedule 2
INTELLECTUAL PROPERTY, MATERIAL AUTHORIZATIONS,
CAPITALIZATION DOCUMENTS, OTHER MATERIAL AGREEMENTS
Intellectual Property: See Attachment 2A for list of Intellectual Property.
Material Authorizations: None.
Capitalization Documents/Employment Agreements:
Company Operating Agreement dated as of May 12, 1998 (including, without
limitation, Appendix B thereto).
Service Agreement dated September 1, 1998 with ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇ and related
materials.
Employment Agreement dated October 21, 1998 with ▇▇▇▇▇ ▇▇▇▇▇▇ and related
materials.
Service Agreements dated May 12, 1998 between Caminus Energy Ltd. and each of
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇, Dr. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Dr. Serena K. B. Hesmondhalgh.
Employment Agreement dated May 12, 1998 with ▇▇▇▇▇ ▇▇▇▇▇▇▇.
Employment Agreement dated May 12, 1998 with ▇▇▇▇▇ ▇▇▇▇▇.
Employment Agreement dated November 13, 1998 with ▇▇▇▇▇▇ ▇▇▇.
Letter agreement dated November 13, 1998 with ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Employee Equity Ownership Agreement dated November 13, 1998 with ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇.
Letter agreement dated November 13, 1998 with ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Employee Equity Ownership Agreement dated November 13, 1998 with ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇.
Purchase and Option Agreement dated as of December 31, 1998 with SS&C
Technologies, Inc. (as amended by letter agreement dated March 29, 1999).
Distributorship Agreements dated as of May 12, 1998 with SS&C Technologies, Inc.
(as amended by letter agreement dated March 29, 1999).
Purchase Agreement dated May 12, 1998 among Zai*Net Software, Inc. GFI Caminus
LLC (now Caminus LLC) and the other parties thereto (together with ancillary
documents included in closing binder previously supplied to Lender's counsel).
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Stock Purchase Agreement dated May 12, 1998 among GFI Caminus LLC (now Caminus
LLC), Caminus Energy Ltd. and the other parties thereto (together with ancillary
documents included in closing binder previously supplied to Lender's counsel).
Purchase Agreement dated November 13, 1998 between ZAI*NET Software, L.P. (now
Caminus LLC) and ▇▇▇▇▇▇ ▇▇▇, dba Positron Energy Consulting (together with
ancillary documents included in closing binder previously supplied to Lender's
counsel).
Conversion Agreement and Amendment of Purchase Agreement dated December 31, 1998
among Caminus Energy Ventures LLC (now Caminus LLC), Rooney Software, L.L.C. and
the other parties thereto.
ZAI*NET Software, L.P. was merged with and into Caminus LLC pursuant to a
Certificate of Merger filed with the Secretary of State of the State of Delaware
on March 2, 1999.
See lists of issued and outstanding options and warrants included as part of
Schedule 1(A) above.
Company has employment letters with most employees. Except as indicated in
agreements listed above, employment status is indicated to be at will.
Other:
Pursuant to March 29, 1999 letter agreement with SS&C Technologies, the amount
of the option previously granted to SS&C on Series B Membership Interests was
reduced from 3,636,309 notional shares to 2,909,047 notional shares.
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Attachment 2A
TRADEMARKS:
Description Reg. No. Issue Date Title Holder
----------- -------- ---------- ------------
1. Zai*Net Design Only 2,094,226 9/9/97 Caminus LLC
2. Zai*Net and Design 2,076,995 7/8/97 Caminus LLC
3. Zai*Net 1,782,466 7/20/93 Caminus LLC
4. Weather Delta pending pending Caminus LLC
COPYRIGHTS:
Description Reg. No. Issue Date Title Holder
----------- -------- ---------- ------------
Zai*Net Foreign Tx-2382109 6/8/92 Caminus LLC
Exchange (jx) Trading
System User Guide
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Schedule 3
DISCLOSURES
None.
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Schedule 4
EXISTING INDEBTEDNESS AND LIENS
Part A
Promissory Note dated March 31, 1999 in the original principal amount of
$1,250,000 issued to OCM Principal Opportunities Fund, L.P.
Earn-out payments due to former owners of ZAI*NET Software, Inc. pursuant to
Purchase Agreement dated May 12, 1998. $2,187,500 will be paid from initial
draw-down under Credit Agreement; additional payment of $2,187,500 due on April
15, 2000 (of which approximately $1,800,000 required to be funded by certain
members of the Company as additional capital contribution).
Contingent purchase price payments may be owed pursuant to provisions of the
Purchase Agreement dated November 13, 1998 between ZAI*NET Software, L.P. (now
Caminus LLC) and ▇▇▇▇▇▇ ▇▇▇, dba Positron Energy Consulting.
Distibutor Agreement with SS&C Technologies, Inc. dated December 31, 1998 (as
amended by letter agreement dated March 29, 1999) (mandatory take or pay license
fees).
Part B
For list of liens securing Indebtedness, please refer to UCC search attached
hereto as Attachment ▇▇.
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