EXHIBIT 10.41
AMENDED AND RESTATED CREDIT AGREEMENT
BY AND BETWEEN
META GROUP, INC.
AND
THE BANK OF NEW YORK
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$6,000,000
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DATED AS OF MARCH 12, 2003
TABLE OF CONTENTS
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION......................................1
1.1. Definitions..............................................................1
1.2. Principles of Construction..............................................11
1.3. Matters Regarding the Prior Credit Agreement............................12
1.4. Prior Collateral........................................................12
2. AMOUNT AND TERMS OF LOANS......................................................12
2.1. Loans...................................................................12
2.2. Note....................................................................13
2.3. [Reserved]..............................................................13
2.4. [Reserved]..............................................................13
2.5. Procedure for Borrowing.................................................13
2.6. Termination of Commitment; Reduction of Commitment Amount...............14
2.7. Prepayments of the Loans; Payment on Maturity...........................14
2.8. Payments................................................................15
2.9. Use of Proceeds.........................................................15
2.10. Letter of Credit Sub-facility...........................................15
2.11. Absolute Obligation with respect to Letter of Credit Payments...........16
3. INTEREST, YIELD PROTECTIONS, ETC...............................................17
3.1. Interest Rate and Payment Dates.........................................17
3.2. Fees....................................................................18
3.3. Conversions.............................................................18
3.4. Indemnification for Loss................................................19
3.5. Capital Adequacy........................................................19
3.6. Reimbursement for Increased Costs.......................................19
3.7. Illegality of Funding...................................................20
3.8. Substituted Interest Rate...............................................20
3.9. Taxes...................................................................21
3.10. Option to Fund..........................................................21
4. REPRESENTATIONS AND WARRANTIES.................................................21
4.1. Subsidiaries; Capitalization............................................22
4.2. Existence and Power.....................................................22
4.3. Authority and Execution.................................................22
4.4. Binding Agreement.......................................................22
4.5. Litigation..............................................................22
4.6. Required Consents.......................................................22
4.7. Absence of Defaults; No Conflicting Agreements..........................23
4.8. Compliance with Applicable Laws.........................................23
4.9. Taxes...................................................................23
4.10. Governmental Regulations................................................23
4.11. Federal Reserve Regulations; Use of Loan Proceeds.......................24
4.12. Plans...................................................................24
4.13. Financial Statements....................................................24
4.14. Property................................................................24
4.15. Intellectual Property; Licenses.........................................25
4.16. Environmental Matters...................................................25
4.17. Solvency................................................................26
4.18. Security Interests......................................................26
4.19. No Misrepresentation....................................................26
5. CONDITIONS TO FIRST LOANS......................................................26
5.1. Evidence of Action......................................................26
5.2. This Agreement..........................................................27
5.3. Note....................................................................27
5.4. Security Agreement......................................................27
5.5. Officer's Certificate...................................................27
5.6. Compliance Certificate..................................................28
5.7. Opinion of Counsel to the Borrower......................................28
5.8. Search Reports and Related Documents....................................28
5.9. Approval of Special Counsel.............................................28
5.10. Fees....................................................................28
5.11. Fees and Expenses of Special Counsel....................................28
5.12. Other Documents.........................................................28
6. CONDITIONS OF LENDING..........................................................28
6.1. Compliance..............................................................29
6.2. Borrowing Request / Letter of
Credit Agreement..........................29
6.3. Loan Closings...........................................................29
6.4. Other Documents.........................................................29
7. AFFIRMATIVE COVENANTS..........................................................29
7.1. Financial Statements and Information....................................29
7.2. Certificates; Other Information.........................................30
7.3. Legal Existence.........................................................30
7.4. Taxes...................................................................30
7.5. Insurance...............................................................31
7.6. Performance of Obligations..............................................31
7.7. Condition of Property...................................................31
7.8. Observance of Legal Requirements........................................31
7.9. Inspection of Property; Books and Records; Discussions..................32
7.10. Authorizations..........................................................32
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8. NEGATIVE COVENANTS.............................................................32
8.1. Liens...................................................................32
8.2. Merger; Consolidations..................................................32
8.3. Dispositions............................................................32
8.4. Business and Name Changes...............................................32
8.5. Amendments, Etc. of Certain Agreements..................................33
9. DEFAULT........................................................................33
9.1. Events of Default.......................................................33
9.2. Remedies................................................................35
10. OTHER PROVISIONS...............................................................36
10.1. Amendments and Waivers..................................................36
10.2. Notices.................................................................36
10.3. No Waiver; Cumulative Remedies..........................................37
10.4. Survival of Representations and Warranties and Certain Obligations......37
10.5. Expenses................................................................38
10.6. Successors and Assigns..................................................38
10.7. Counterparts............................................................39
10.8. Set-off.................................................................39
10.9. Construction............................................................39
10.10. Governing Law...........................................................40
10.11. Headings Descriptive....................................................40
10.12. Severability............................................................40
10.13. Integration.............................................................40
10.14. Consent to Jurisdiction.................................................40
10.15. Service of Process......................................................40
10.16. No Limitation on Service or Suit........................................41
10.17. WAIVER OF TRIAL BY JURY.................................................41
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Borrowing Request
Exhibit C Form of Notice of Conversion
Exhibit D Form of Security Agreement
Exhibit E Form of Compliance Certificate
SCHEDULES
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Schedule 4.1 List of Subsidiaries; Capitalization
Schedule 4.12 List of Plans
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AMENDED AND RESTATED
CREDIT AGREEMENT (this "AGREEMENT") dated as of
March 12, 2003 by and between META GROUP, INC., a Delaware corporation (the
"BORROWER") and THE BANK OF
NEW YORK (the "BANK").
RECITALS:
A. The Bank and the Borrower have previously entered into that certain
Credit Agreement, dated as of September 18, 2000, as amended by that certain
Amended and Restated
Credit Agreement between the Bank and the Borrower, dated
as of November 5, 2001 (such
credit agreements, as amended, are collectively,
the "PRIOR
CREDIT AGREEMENT").
B. It is the intention of the parties hereto that this Agreement amend
and restate the terms of the Prior
Credit Agreement in its entirety, and that,
on the Effective Date, the Loans under and as defined in the Prior
Credit
Agreement be Loans under this Agreement, evidenced and secured by the applicable
Loan Documents (hereinafter defined).
C. Subject to and upon the terms and conditions herein set forth, the
Bank is willing to amend the Prior Credit Agreement pursuant to the terms of
this Agreement.
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND AGREEMENTS CONTAINED
HEREIN, THE PARTIES HERETO AGREE AS FOLLOWS:
1. DEFINITIONS AND PRINCIPLES OF CONSTRUCTION
1.1. DEFINITIONS
As used in this Agreement, terms defined in the recitals have the
meanings therein indicated, and the following terms have the following meanings:
"ABR ADVANCES": the Loans, (or any portions thereof) at such time as
they (or such portions) are made and/or being maintained at a rate of interest
based upon the Alternate Base Rate.
"ACCOUNTANTS": Deloitte & Touche, or such other independent
certified public accountants of nationally recognized standing chosen by the
Borrower and acceptable to the Bank in its reasonable judgment.
"ACCUMULATED FUNDING DEFICIENCY": as defined in Section 302 of
ERISA.
"ACQUISITION": with respect to any Person, the purchase or other
acquisition by such Person, by any means whatsoever (including through a merger,
dividend or otherwise and whether in a single transaction or in a series of
related transactions), of (i) any Capital Stock of, or other equity securities
of, any other Person if, immediately thereafter, such other Person would be
either a Subsidiary of such Person or otherwise under the control of such
Person, (ii) any Operating Entity, or (iii) any property of (A) any other Person
or (B) any Operating Entity, in either case other than in the ordinary course of
business, provided, however, that no
acquisition of all or substantially all of the assets of such other Person or
Operating Entity shall be deemed to be in the ordinary course of business.
"ADVANCE": an ABR Advance or a LIBOR Advance, as the case may be.
"AFFILIATE": as to any Person, any other Person which, directly or
indirectly, controls, is controlled by, or is under common control with, such
Person.
"AGREEMENT": this Amended and Restated Credit Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"ALTERNATE BASE RATE": on any date, a rate of interest per annum
equal to the higher of (i) the Federal Funds Rate in effect on such date PLUS
0.50% or (ii) the Prime Rate in effect on such date.
"APPLICABLE MARGIN": with respect to the unpaid principal balance of
Loans (i) consisting of LIBOR Advances, 1.50%, and (ii) consisting of ABR
Advances, 0.00%.
"AUTHORIZED SIGNATORY": as to (i) any Person which is a corporation,
the chairman of the board, the president, any vice president, the chief
financial officer or any other officer (acceptable to the Bank) of such Person,
and (ii) any Person which is not a corporation, a general partner, managing
member or other appropriate appointed officer (acceptable to the Bank) thereof.
"AVAILABLE REVOLVING CREDIT COMMITMENT": at any date of
determination, an amount equal to the excess, if any, of (a) the amount of the
Revolving Credit Commitment over (b) the sum of (i) the aggregate unpaid
principal amount at such time of all Loans and (ii) the Letter of Credit
Exposure.
"BORROWING DATE": any Business Day on which the Bank makes a Loan or
issues a Letter of Credit.
"BORROWING REQUEST": a request for one or more Loans, substantially
in the form of EXHIBIT B.
"BUSINESS DAY": any day other than a Saturday, a Sunday or a day on
which commercial banks located in
New York City are authorized or required by
law or other governmental action to close and, with respect to all notices and
determinations in connection with, and payments of principal and interest on,
LIBOR Advances, which is also a day on which eurodollar funding between banks
may be carried on in London, England.
"CAPITAL STOCK": as to any Person, all shares, interests,
partnership interests, limited liability company interests, participations,
rights in or other equivalents (however designated) of such Person's equity
(however designated) and any rights, warrants or options exchangeable for or
convertible into such shares, interests, participations, rights or other equity.
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"CHANGE OF CONTROL": the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof), of shares
representing 50% or more of the aggregate ordinary voting power or economic
interests represented by the issued and outstanding equity securities of the
Borrower on a fully diluted basis.
"CODE": the Internal Revenue Code of 1986, as the same may be
amended from time to time, or any successor thereto, and the rules and
regulations issued thereunder, as from time to time in effect.
"COLLATERAL": the property in which a security interest is granted
under the Collateral Documents.
"COLLATERAL ACCOUNT": as defined in the Security Agreement.
"COLLATERAL DOCUMENTS": the Security Agreement and all documents
executed or delivered in connection therewith.
"COMMITMENT": the Revolving Credit Commitment or the Letter of
Credit Commitment, as the case may be.
"COMPLIANCE CERTIFICATE": a certificate substantially in the form of
EXHIBIT E.
"CONTINGENT OBLIGATION": as to any Person (a "SECONDARY OBLIGOR"),
any obligation of such secondary obligor (i) guaranteeing or in effect
guaranteeing any return on any investment made by another Person, or (ii)
guaranteeing or in effect guaranteeing any Indebtedness, lease, dividend or
other obligation (a "PRIMARY OBLIGATION") of any other Person (a "PRIMARY
OBLIGOR") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such secondary obligor, whether contingent, (A) to
purchase any primary obligation or any property constituting direct or indirect
security therefor, (B) to advance or supply funds (x) for the purchase or
payment of any primary obligation or (y) to maintain working capital or equity
capital of the primary obligor or otherwise to maintain the net worth or
solvency of a primary obligor, (C) to purchase property, securities or services
primarily for the purpose of assuring the beneficiary of any primary obligation
of the ability of a primary obligor to make payment of a primary obligation, (D)
otherwise to assure or hold harmless the beneficiary of a primary obligation
against loss in respect thereof, and (E) in respect of the liabilities of any
partnership in which a secondary obligor is a general partner, except to the
extent that such liabilities of such partnership are nonrecourse to such
secondary obligor and its separate property, provided, however, that the term
"Contingent Obligation" shall not include the indorsement of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation of a Person shall be deemed to be an amount equal to the
stated or determinable amount of a primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such Person
in good faith.
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"CONVERSION DATE": the date on which: (i) a LIBOR Advance is
converted to an ABR Advance, (ii) a LIBOR Advance is continued as a new LIBOR
Advance, or (iii) an ABR Advance is converted to a LIBOR Advance.
"DEFAULT": any event or condition which constitutes an Event of
Default or which, with the giving of notice, the lapse of time, or any other
condition, would, unless cured or waived, become an Event of Default.
"DISPOSITION": with respect to any Person, any sale, assignment,
transfer or other disposition by such Person, by any means of all, substantially
all, or a material portion of such Person's property.
"DOLLARS" and "$": lawful currency of the United States.
"EFFECTIVE DATE": March 12, 2003.
"EMPLOYEE BENEFIT PLAN": an employee benefit plan within the meaning
of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of its Subsidiaries or any ERISA Affiliate.
"EMPLOYEE STOCK OPTIONS": options or other rights to purchase common
shares of the Borrower issued exclusively to directors, officers and employees
of the Borrower and its Subsidiaries pursuant to a plan or arrangement adopted
by the board of directors of the Borrower.
"ENVIRONMENTAL LAWS": any and all federal, state and local laws
relating to the environment, the use, storage, transporting, manufacturing,
handling, discharge, disposal or recycling of hazardous substances, materials or
pollutants or industrial hygiene, and including, without limitation, (i) the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended, 42 USCA Section 9601 et seq.; (ii) the Resource Conservation and
Recovery Act of 1976, as amended, 42 USCA Section 6901 et seq.; (iii) the Toxic
Substance Control Act, as amended, 15 USCA Section 2601 et seq.; (iv) the Water
Pollution Control Act, as amended, 33 USCA Section 1251 et seq.; (v) the Clean
Air Act, as amended, 42 USCA Section 7401 et seq.; (vi) the Hazardous Materials
Transportation Authorization Act of 1994, as amended, 49 USCA Section 5101
et seq. and (vii) all rules, regulations, judgments, decrees, injunctions and
restrictions thereunder and any analogous state law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the rules and regulations issued thereunder, as
from time to time in effect.
"ERISA AFFILIATE": when used with respect to an Employee Benefit
Plan, ERISA, the PBGC or a provision of the Code pertaining to employee benefit
plans, any Person which is a member of any group of organizations within the
meaning of Sections 414(b) or (c) of the Code (or, solely for purposes of
potential liability under Section 302(c)(11) of ERISA and Section 412(c)(11) of
the Code and the lien created under Section 302(f) of ERISA and Section 412(n)
of the Code, Sections 414(m) or (o) of the Code) of which the Borrower or any of
its Subsidiaries is a member.
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"EVENT OF DEFAULT": as defined in Section 9.1.
"EXISTING L/Cs": all letters of credit issued (or deemed issued)
pursuant to the Prior Credit Agreement.
"FEDERAL FUNDS RATE": for any day, a rate per annum (expressed as a
decimal, rounded upwards, if necessary, to the next higher 1/100 of 1%) equal to
the weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers on such
day, as published by the Federal Reserve Bank of
New York on the Business Day
next succeeding such day, PROVIDED THAT (i) if the day for which such rate is to
be determined is not a Business Day, the Federal Funds Rate for such day shall
be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
of the quotations for such day on such transactions received by the Bank.
"FINANCIAL OFFICER": as to any Person, the chief financial officer
of such Person or such other officer as shall be reasonably satisfactory to the
Bank.
"GAAP": generally accepted accounting principles in effect in the
United States of America as of the date of determination, consistently applied.
"GOVERNMENTAL AUTHORITY": any foreign, federal, state, municipal or
other government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court or arbitrator.
"HAZARDOUS SUBSTANCE": any hazardous or toxic substance, material or
waste, including, but not limited to, (i) those substances, materials, and
wastes listed in the United States Department of Transportation Hazardous
Materials Table (49 CFR 172.101) or by the Environmental Protection Agency as
hazardous substances (40 CFR Part 302) and amendments thereto and replacements
thereof and (ii) any substance, pollutant or material defined as, or designated
in, any Environmental Law as a "hazardous substance," "toxic substance,"
"hazardous material," "hazardous waste," "restricted hazardous waste,"
"pollutant," "toxic pollutant" or words of similar import.
"INDEBTEDNESS": as to any Person, at a particular time, all items
which constitute, without duplication, (i) indebtedness for borrowed money, (ii)
indebtedness in respect of the deferred purchase price of property (other than
trade payables incurred in the ordinary course of business), (iii) indebtedness
evidenced by notes, bonds, debentures or similar instruments, (iv) obligations
with respect to any conditional sale or title retention agreement, (v)
indebtedness arising under acceptance facilities and the amount available to be
drawn under all letters of credit issued for the account of such Person and,
without duplication, all drafts drawn thereunder to the extent such Person shall
not have reimbursed the issuer in respect of the issuer's payment thereof, (vi)
all liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof (other
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than carriers', warehousemen's, mechanics', repairmen's or other like
non-consensual statutory Liens arising in the ordinary course of business),
(vii) Capital Lease Obligations, (viii) obligations under interest rate or
foreign currency hedging arrangements at market value, (ix) all obligations of
such Person in respect of Capital Stock subject to mandatory redemption or
redemption at the option of the holder thereof, in whole or in part, and (x) all
Contingent Obligations of such Person in respect of any of the foregoing.
"INTELLECTUAL PROPERTY": as defined in Section 4.15.
"INTEREST PAYMENT DATE": (i) during the Revolving Credit Commitment
Period (x) as to any ABR Advance, the first day of each month commencing on the
first of such days to occur after such ABR Advance is made or any LIBOR Advance
is converted to an ABR Advance, (y) as to any LIBOR Advance as to which the
Borrower has selected an Interest Period of one, two or three months, the last
day of such Interest Period, and (z) as to any LIBOR Advance as to which the
Borrower has selected an Interest Period of six months, the date which occurs
three months from the first day of such Interest Period and the last day of such
Interest Period; (ii) after the Revolving Credit Commitment Period, with respect
to all Advances, the first day of each month; and (iii) the Maturity Date.
"INTEREST PERIOD": with respect to any LIBOR Advance, the period
commencing on, as the case may be, the Borrowing Date or Conversion Date with
respect to such LIBOR Advance and ending one, two, three or six months
thereafter as selected by the Borrower and agreed to by the Bank, PROVIDED,
HOWEVER, that:
(a) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to
carry such Interest Period into another calendar month, in which event such
Interest Period shall end on the immediately preceding Business Day;
(b) any Interest Period which begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month at the end of the
Interest Period;
(c) no Interest Period selected in respect of the conversion
of any LIBOR Advance shall end after the Revolving Credit Termination Date;
and
(d) the Borrower shall select Interest Periods so that not
more than ten (10) different Interest Periods shall be outstanding at any
one time under the Loans.
"LETTER OF CREDIT AGREEMENT": each Application and Agreement for
Standby Letter of Credit, in the form provided by the Bank from time to time.
"LETTER OF CREDIT COMMITMENT": the commitment of the Bank to issue
Letters of Credit under and in accordance with the terms of this Agreement.
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"LETTER OF CREDIT COMMITMENT AMOUNT": $2,000,000, as reduced from
time to time pursuant to Section 2.6.
"LETTER OF CREDIT COMMITMENT PERIOD": the period from the date
hereof until the Business Day immediately preceding the Maturity Date.
"LETTER OF CREDIT EXPOSURE": at any date, the sum, without
duplication, of (i) the aggregate amount which may be drawn under all unexpired
Letters of Credit outstanding on such date (whether or not the conditions for
drawing thereunder have or may be satisfied), and (ii) the aggregate unpaid
reimbursement obligations in respect of the Letters of Credit on such date.
"LETTER OF CREDIT": as defined in Section 2.10.
"LIBOR ADVANCES": the Loans (or any portions thereof) at such time
as they (or such portions) are made and/or being maintained at a rate of
interest based upon LIBOR.
"LIBOR": with respect to the Interest Period applicable to any LIBOR
Advance, a rate of interest per annum, as determined by the Bank, (rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point) equal to
the rate for deposits in U.S. Dollars for a period comparable to such Interest
Period which appears on the Telerate Page 3750 as of 11:00 a.m., London time, on
the day that is two London Banking Days prior to the first day of such Interest
Period. If such rate does not appear on the Telerate Page 3750, LIBOR shall
mean, for such Interest Period, the rate per annum (rounded, if necessary, to
the nearest one hundred-thousandth of a percentage point) at which deposits in
U.S. Dollars 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 London Banking
Days prior to the first day of such Interest Period to prime banks in the London
interbank market for a period comparable to such Interest Period and in an
amount comparable to the outstanding principal amount of such LIBOR Advance. The
Bank will request the principal London office of each such bank to provide a
quotation of its rate. If at least two such quotations are provided as
requested, the rate for that Interest Period will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the rate for
that Interest Period will be the arithmetic mean of the rates quoted by major
banks in
New York City, selected by the Bank, at approximately 11:00 a.m.,
New
York City time, on the date that is two Business Days prior to the first day of
such Interest Period for loans in U.S. Dollars to leading European banks for a
period comparable to such Interest Period and in an amount comparable to the
outstanding principal amount of such LIBOR Advance.
"LICENSE": as defined in Section 4.15.
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit or
preferential arrangement, encumbrance, lien (statutory or other), or other
security agreement or security interest of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement and any capital or financing lease having substantially the same
economic effect as any of the foregoing.
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"LOAN DOCUMENTS": collectively, this Agreement, the Note, each
Letter of Credit Agreement and the Collateral Documents.
"LOANS": as defined in Section 2.1. The term "Loans" shall also
include all loans made under the Prior Credit Agreement which are outstanding on
the Effective Date.
"LONDON BANKING DAY": any day on which commercial banks are open for
general business (including dealings in foreign exchange and foreign currency
deposits) in London, England.
"MARGIN STOCK": any "MARGIN STOCK", as defined in Regulation U of
the Board of Governors of the Federal Reserve System, as amended, supplemented
or otherwise modified from time to time.
"MARKET VALUE:" with respect to the Collateral, an amount,
determined by the Bank at any time and from time to time, equal to the sum of
(i) the cash held in the Collateral Account at such time, and (ii) the market
value, as determined by the Bank at such time, of all marketable securities,
treasury bills, notes and bonds, certificates of deposit issued by the Bank and
other Collateral approved by the Bank, held by the Bank in the Collateral
Account at such time and in which the Bank has a first priority security
interest subject to no other Liens.
"MATERIAL ADVERSE CHANGE": a material adverse change in (i) the
financial condition, operations, business, prospects or property of the
Borrower, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents or (iii) the ability of the Bank to enforce the Loan Documents.
"MATERIAL ADVERSE EFFECT": a material adverse effect on (i) the
financial condition, operations, business, prospects or property of the
Borrower, (ii) the ability of the Borrower to perform its obligations under the
Loan Documents or (iii) the ability of the Bank to enforce the Loan Documents.
"MATURITY DATE": November 4, 2004 or such earlier date on which the
Note shall become due and payable, whether by acceleration or otherwise.
"MULTIEMPLOYER PLAN": a Pension Plan which is a multiemployer plan
as defined in Section 4001(a)(3) of ERISA.
"NOTE": as defined in Section 2.2.
"NOTICE OF CONVERSION": a notice substantially in the form of
EXHIBIT C.
"OBLIGOR": the purchaser of goods and services giving rise to an
Account or any other Person obligated to make payment in respect to such
Account.
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"OPERATING ENTITY": any Person or any business or operating unit of
a Person which is, or could be, operated separate and apart from (i) the other
businesses and operations of such Person, or (ii) any other line of business or
business segment.
"ORGANIZATIONAL DOCUMENTS": as to any Person which is (i) a
corporation, the certificate or articles of incorporation and by-laws of such
Person, (ii) a limited liability company, the limited liability company
agreement or similar agreement of such Person, (iii) a partnership, the
partnership agreement or similar agreement of such Person, or (iv) any other
form of entity or organization, the organizational documents analogous to the
foregoing.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"PENSION PLAN": at any date of determination, any Employee Benefit
Plan (including a Multiemployer Plan), the funding requirements of which (under
Section 302 of ERISA or Section 412 of the Code) are, or at any time within the
six years immediately preceding such date, were in whole or in part, the
responsibility of the Borrower, any of its Subsidiaries or any ERISA Affiliate.
"PERSON": any individual, firm, partnership, limited liability
company, joint venture, corporation, association, business enterprise, joint
stock company, unincorporated association, trust, Governmental Authority or any
other entity, whether acting in an individual, fiduciary, or other capacity, and
for the purpose of the definition of "ERISA Affiliate", a trade or business.
"PRIME RATE": a rate of interest per annum equal to the rate of
interest publicly announced in
New York City by the Bank from time to time as
its prime commercial lending rate (which rate is not the lowest rate at which
the Bank may make extensions of credit), such rate to be adjusted automatically
(without notice) on the effective date of any change in such publicly announced
rate.
"PRIOR CREDIT AGREEMENT": as defined in the Recitals hereto.
"PROHIBITED TRANSACTION": a transaction which is prohibited under
Section 4975 of the Code or Section 406 of ERISA and not exempt under Section
4975 of the Code or Section 408 of ERISA.
"REAL PROPERTY": all real property owned or leased by the Borrower
or any of its Subsidiaries.
"REGULATORY CHANGE": (i) the introduction or phasing in of any law,
rule or regulation after the Effective Date, (ii) the issuance or promulgation
after the Effective Date of any directive, guideline or request from any central
bank or United States or foreign Governmental Authority (whether or not having
the force of law), or (iii) any change after the Effective Date in the
interpretation of any existing law, rule, regulation, directive, guideline or
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request by any central bank or United States or foreign Governmental Authority
charged with the administration thereof.
"REIMBURSEMENT OBLIGATIONS": all of the obligations and liabilities
of the Borrower (a) under each Letter of Credit Agreement, and (b) hereunder in
respect of the Letters of Credit.
"REPORTABLE EVENT": with respect to any Pension Plan, (i) any event
set forth in Sections 4043(c) (other than a Reportable Event as to which the 30
day notice requirement is waived by the PBGC under applicable regulations),
4062(c) or 4063(a) of ERISA or the regulations thereunder, (ii) an event
requiring the Borrower, any of its Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code, or
(iii) any failure to make any payment required by Section 412(m) of the Code.
"REVOLVING CREDIT COMMITMENT": the Bank's undertaking during the
Revolving Credit Commitment Period to make Loans, subject to the terms and
conditions hereof, in an aggregate outstanding principal amount not exceeding at
any time the Revolving Credit Commitment Amount.
"REVOLVING CREDIT COMMITMENT AMOUNT": $6,000,000, as reduced from
time to time pursuant to Section 2.6.
"REVOLVING CREDIT COMMITMENT PERIOD": the period from the Effective
Date hereof until the Business Day immediately preceding the Revolving Credit
Termination Date.
"REVOLVING CREDIT TERMINATION DATE": the earlier of the Business Day
immediately preceding the Maturity Date or such other date upon which the
Revolving Credit Commitment shall have been terminated in accordance with
Section 2.6 or Section 9.2.
"SECURITY AGREEMENT": the Amended and Restated Security Agreement,
substantially in the form of EXHIBIT D, as the same may be amended, supplemented
or otherwise modified from time to time.
"SOLVENT": as to any Person, (i) such Person's total assets exceed
its total liabilities, AND (ii) such Person is not INSOLVENT, as such term is
defined in Section 101(32) of the Bankruptcy Code (11 U.S.C. Section 101
et seq.).
"SPECIAL COUNSEL": ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, special counsel to
the Bank.
"SUBSIDIARY": as to any Person, any corporation, association,
partnership, limited liability company, joint venture or other business entity
of which such Person or any Subsidiary of such Person, directly or indirectly,
either (i) in respect of a corporation, owns or controls more than 50% of the
outstanding Capital Stock having ordinary voting power to elect a majority of
the board of directors, irrespective of whether a class or classes shall or
might have voting power by reason of the happening of any contingency, or (ii)
in respect of an association, partnership,
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limited liability company, joint venture or other business entity, is entitled
to share in more than 50% of the profits and losses, however determined.
"TAXES": any and all present or future income, stamp, franchise or
other taxes, levies, imposts, duties, fees, assessments, deductions,
withholdings, or other charges of whatever nature, now or hereafter imposed,
levied, collected, withheld, or assessed by any jurisdiction, or by any
department, agency, state or other political subdivision thereof or therein.
"TELERATE PAGE 3750": the display page so designated on Bridge's
Telerate Service (or such other page as may replace that page on that service),
or such other service as may be nominated as the information vendor, for
purposes of displaying rates or prices comparable to LIBOR.
"TERMINATION EVENT": with respect to any Pension Plan, (i) a
Reportable Event, (ii) the termination of a Pension Plan, or the filing of a
notice of intent to terminate a Pension Plan, or the treatment of a Pension Plan
amendment as a termination under Section 4041(c) of ERISA, (iii) the institution
of proceedings to terminate a Pension Plan under Section 4042 of ERISA, or (iv)
the appointment of a trustee to administer any Pension Plan under Section 4042
of ERISA.
1.2. PRINCIPLES OF CONSTRUCTION
(a) All terms defined in this Agreement shall have the meanings
given such terms herein when used in the other Loan Documents or any
certificate, opinion or other document made or delivered pursuant hereto or
thereto, unless otherwise defined therein.
(b) As used in the Loan Documents and in any certificate, opinion
or other document made or delivered pursuant thereto, accounting terms not
defined in Section 1.1, and accounting terms partly defined in Section 1.1, to
the extent not defined, shall have the respective meanings given to them under
GAAP.
(c) The words "hereof", "herein", "hereto" and "hereunder" and
similar words when used in a Loan Document shall refer to such Loan Document as
a whole and not to any particular provision thereof, and Section, schedule and
exhibit references contained therein shall refer to Sections thereof or
schedules or exhibits thereto unless otherwise expressly provided therein.
(d) Unless the context otherwise requires, words in the singular
number include the plural, and words in the plural include the singular.
(e) Unless specifically provided in a Loan Document to the
contrary, any reference to a time shall refer to such time in
New York City.
(f) Unless specifically provided in a Loan Document to the
contrary, in the computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including" and the words "to"
and "until" each means "to but excluding".
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(g) References in any Loan Document to a fiscal period shall refer
to that fiscal period of the Borrower.
1.3. MATTERS REGARDING THE PRIOR CREDIT AGREEMENT
On the Effective Date, if the aggregate amount of the Loans and Letter of
Credit Exposure (as such terms are defined in the Prior Credit Agreement)
exceeds the Revolving Credit Commitment Amount, the Borrower shall pay to the
Bank (as a loan prepayment under the Prior Credit Agreement) the amount of such
excess plus all accrued and unpaid interest thereon and any other sums payable
in connection therewith pursuant to the Prior Credit Agreement.
1.4. PRIOR COLLATERAL.
The parties expressly agree that the Collateral under and as defined in the
Security Agreement shall be substituted for the collateral pledged as collateral
under the collateral documents in connection with the Prior Credit Agreement
(the "PRIOR COLLATERAL"), and the Prior Collateral shall be released from the
pledge thereof in favor of the Bank on the later to occur of (i) the Effective.
Date, and (ii) the Borrower's satisfaction of the conditions of Section 5.
2. AMOUNT AND TERMS OF LOANS
2.1. LOANS
(a) Subject to the terms and conditions hereof, the Bank agrees to
make revolving credit loans (each a "LOAN" and collectively with all other
Loans, the "LOANS") to the Borrower from time to time during the Revolving
Credit Commitment Period; PROVIDED THAT the aggregate principal amount of the
Loans outstanding at any time shall not exceed (1) the Revolving Credit
Commitment Amount MINUS (2) the Letter of Credit Exposure. During the Revolving
Credit Commitment Period, the Borrower may borrow, prepay in whole or in part
and reborrow under the Revolving Credit Commitment, all in accordance with the
terms and conditions of this Agreement. Subject to the provisions of Sections
2.5(a) and 3.3, at the option of the Borrower, Loans may be made as (i) one or
more ABR Advances, (ii) one or more LIBOR Advances or (iii) any combination
thereof. Loans outstanding under the Prior Credit Agreement on the Effective
Date shall be deemed to be Loans under this Agreement. Each LIBOR Advance and
each ABR Advance with respect to such loans shall continue as a LIBOR Advance or
ABR Advance hereunder, as the case may be.
(b) Notwithstanding anything in this Agreement to the contrary, the
Borrower shall not request, and the Bank shall have no obligation to make, any
Loan if after giving effect to such Loan the sum of all Loans plus the Letter of
Credit Exposure would exceed the Market Value of the Collateral.
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(c) Loans made pursuant to the Prior Credit Agreement which are
outstanding on the Effective Date shall be Loans under this Agreement. Each
Advance under and as defined in the Prior Credit Agreement shall be an Advance
of the same type under this Agreement.
2.2. NOTE.
The Loans to the Borrower shall be evidenced by a promissory note
(the "NOTE") substantially in the form of EXHIBIT A, with appropriate insertions
therein, payable to the order of the Bank, dated the Effective Date, and in a
principal amount equal to the Revolving Credit Commitment Amount. The
outstanding principal balance of the Loans shall be due and payable on the
Maturity Date.
2.3. [RESERVED].
2.4. [RESERVED].
2.5. PROCEDURE FOR BORROWING.
(a) The Borrower may borrow under the Revolving Credit Commitment
on any Business Day during the Revolving Credit Commitment Period, PROVIDED THAT
the Borrower shall have delivered a Borrowing Request to the Bank, which shall
be sent by telecopy (confirmed promptly, and in any event within five Business
Days, by the delivery to the Bank of a manually signed counterpart), no later
than: 11:00 a.m. of the third Business Day prior to the requested Borrowing
Date, in the case of LIBOR Advances, and 11:00 a.m. on the requested Borrowing
Date, in the case of ABR Advances, specifying (A) the aggregate principal amount
to be borrowed, (B) the requested Borrowing Date, (C) whether such borrowing is
to consist of one or more LIBOR Advances, an ABR Advance, or a combination
thereof and (D) if the borrowing is to consist of one or more LIBOR Advances,
the length of the Interest Period for each such LIBOR Advance. Each (i) LIBOR
Advance made on each Borrowing Date, when aggregated with all amounts to be
converted to a LIBOR Advance on such date and having the same Interest Period as
the LIBOR Advance to be made, shall equal no less than $500,000 or a whole
multiple of $100,000 in excess thereof, and (ii) ABR Advance made on each
Borrowing Date shall equal no less than $100,000 or an integral multiple thereof
(or, if less, the Available Revolving Credit Commitment on such date).
(b) Subject to the satisfaction of the terms and conditions of this
Agreement, as determined by the Bank, the requested Loans shall be made
available by the Bank on the requested Borrowing Date to the Borrower at the
office of the Bank specified in Section 10.2 by crediting the account of the
Borrower on the books of such office with the amount of such requested Loans.
(c) If the Bank makes a new Loan on a Borrowing Date on which the
Borrower is to repay a Loan, the Bank shall apply the proceeds of the new Loan
to make such repayment, and only the excess of the proceeds of the new Loan over
the Loan being repaid need be made available to the Borrower.
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2.6. TERMINATION OF COMMITMENT; REDUCTION OF COMMITMENT AMOUNT
(a) The Borrower shall have the right, upon at least three Business
Days' prior written notice to the Bank, to terminate the Revolving Credit
Commitment or from time to time to permanently reduce the Revolving Credit
Commitment Amount, PROVIDED THAT (x) any such reduction shall be in the amount
of $1,000,000 or a whole multiple of $500,000 in excess thereof, and (y) the
Revolving Credit Commitment Amount may not be reduced to less than $1,000,000
without terminating the Revolving Credit Commitment.
(b) REDUCTION OF THE LETTER OF CREDIT COMMITMENT AMOUNT. The Letter
of Credit Commitment Amount shall not be reduced until such time as the
Revolving Credit Commitment Amount shall equal such Letter of Credit Commitment
Amount, and thereafter shall in each case be reduced, automatically, by a sum
equal to the amount of each such reduction in the Revolving Credit Commitment
Amount.
2.7. PREPAYMENTS OF THE LOANS; PAYMENT ON MATURITY
(a) VOLUNTARY PREPAYMENTS. The Borrower may, at its option, prepay
the Loans without premium or penalty (but subject to Section 3.4), in full at
any time or in part from time to time by notifying the Bank in writing no later
than 12:00 noon on the proposed prepayment date, in the case of Loans consisting
of ABR Advances, and at least three Business Days prior to the proposed
prepayment date, in the case of Loans consisting of LIBOR Advances, specifying
whether the Advances to be prepaid are ABR Advances or LIBOR Advances or a
combination thereof, the amount to be prepaid and the date of prepayment. Each
such notice shall be irrevocable and the amount specified in each such notice,
together with interest accrued on such amount to the date of prepayment, shall
be due and payable on the date specified. Each partial prepayment pursuant to
this subsection shall be in an aggregate principal amount of $250,000 or a whole
multiple of $50,000 in excess thereof, or, if less, the outstanding principal
balance of the Loans. After giving effect to any partial prepayment with respect
to LIBOR Advances which were made (whether as the result of a borrowing or a
conversion) on the same date and which had the same Interest Period, the
outstanding principal balance of such LIBOR Advances shall exceed $500,000 or a
whole multiple of $100,000 in excess thereof.
(b) MANDATORY PREPAYMENT RELATING TO COLLATERAL. On any date that
the aggregate amount of all Loans then outstanding exceeds the Market Value of
the Collateral, the Borrower shall prepay the Loans on such date in an amount
equal to such excess.
(c) MANDATORY PREPAYMENTS RELATING TO TERMINATIONS OF THE REVOLVING
CREDIT COMMITMENT AND REDUCTIONS OF THE REVOLVING CREDIT COMMITMENT AMOUNT. (i)
Simultaneously with the termination of the Revolving Credit Commitment under
Section 2.6, the Borrower shall prepay the Loans in full; and (ii)
simultaneously with a reduction of the Revolving Credit Commitment Amount under
Section 2.6, the Borrower shall prepay the Loans by the aggregate amount, if
any, by which the sum of the aggregate principal amount of the Loans plus the
Letter of Credit Exposure exceeds the Revolving Credit Commitment Amount as so
reduced.
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(d) PREPAYMENTS GENERALLY. With each prepayment of a Loan, the
Borrower shall pay all interest accrued on the principal amount prepaid to the
date of prepayment. Unless otherwise specified by the Borrower, each prepayment
of Loans shall first be applied to ABR Advances.
(e) MATURITY. The outstanding principal balance of the Loans, all
accrued and unpaid interest thereon and all fees and expenses payable hereunder
shall be due and payable on the Maturity Date.
2.8. PAYMENTS
(a) Each payment of principal and interest on the Loans and of all
of the fees to be paid to the Bank in connection with this Agreement shall be
made by the Borrower prior to 1:00 p.m. on the date such payment is due to the
Bank at the Bank's office specified in Section 10.2, in each case in lawful
money of the United States, in immediately available funds and without set-off
or counterclaim. The failure of the Borrower to make any such payment by such
time shall not constitute a Default, PROVIDED THAT such payment is made on such
due date, but any such payment made after 1:00 p.m. on such due date shall be
deemed to have been made on the next Business Day for the purpose of calculating
interest on amounts outstanding on the Loans.
(b) If any payment hereunder or under the Note shall be due and
payable on a day which is not a Business Day, the due date thereof (except as
otherwise provided in the definition of Interest Period) shall be extended to
the next Business Day and interest shall be payable at the applicable rate
specified herein during such extension, provided, however that if such next
Business Day is after the Maturity Date, any such payment shall be due on the
immediately preceding Business Day.
2.9. USE OF PROCEEDS
Loans shall be used solely, directly or indirectly, to (i) fund the
Acquisition of independent sales representative offices of the Borrower and
other Acquisitions, and (ii) provide working capital for the Borrower and for
their general corporate purposes not inconsistent with the provisions hereof. No
part of the proceeds of any Loan nor any Letter of Credit will be used, directly
or indirectly, for a purpose which violates any law, including, without
limitation, the provisions of Regulations T, U or X of the Board of Governors of
the Federal Reserve System, as amended.
2.10. LETTER OF CREDIT SUB-FACILITY
(a) Subject to the terms and conditions of this Agreement, the Bank
agrees to issue standby letters of credit (each, a "LETTER OF CREDIT") during
the Letter of Credit Commitment Period for the account of the Borrower, provided
that immediately after the issuance of each Letter of Credit (i) the Letter of
Credit Exposure shall not exceed the Letter of Credit Commitment Amount, and
(ii) the sum of the aggregate principal amount of the Loans plus the Letter of
Credit Exposure would not exceed the Revolving Credit Commitment Amount.
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Notwithstanding anything in this Agreement to the contrary, the Borrower shall
not request, and the Bank shall have no obligation to issue, any Letter of
Credit if after giving effect to such Letter of Credit the sum of all Loans plus
the Letter of Credit Exposure would exceed the Market Value of the Collateral.
Each of the Existing L/Cs shall be deemed to have been issued under the Letter
of Credit Commitment and shall be a "Letter of Credit" under this Agreement.
(b) Each Letter of Credit shall have an expiration date which shall
not be later than the Business Day immediately preceding the Maturity Date. In
the event that any Letters of Credit remain outstanding on the Maturity Date,
the Borrower shall deposit with the Bank on the Maturity Date an amount equal to
the Letter of Credit Exposure on the Maturity Date in a cash collateral account
under the exclusive control of the Bank.
(c) Each Letter of Credit shall be issued for the account of the
Borrower in support of an obligation of the Borrower in favor of a beneficiary
who has requested the issuance of such Letter of Credit as a condition to a
transaction entered into in connection with the business of the Borrower. The
Borrower shall give the Bank a Letter of Credit Agreement for such Letter of
Credit by 12:00 noon on the requested date of issuance of a Letter of Credit.
Each Letter of Credit shall be in form and substance reasonably satisfactory to
the Bank, with such provisions with respect to the conditions under which a
drawing may be made thereunder and the documentation required in respect of such
drawing as the Bank shall reasonably require.
(d) In determining whether to pay under any Letter of Credit, the
Bank shall have no obligation to the Borrower other than to confirm that any
documents required to be delivered under such Letter of Credit have been
delivered and that they appear to comply on their face with the requirements of
such Letter of Credit. Upon each payment by the Bank under a Letter of Credit,
the Borrower shall reimburse the Bank for the amount thereof upon demand
therefor by the Bank. If all or any portion of any Reimbursement Obligation in
respect of a Letter of Credit shall not be paid when due (whether upon demand,
by acceleration or otherwise), such overdue amount shall bear interest, payable
upon demand by the Bank, at a rate per annum equal to the Alternate Base Rate
PLUS the Applicable Margin applicable to ABR Advances PLUS 2%, from the date of
such nonpayment until paid in full (whether before or after the entry of a
judgment thereon).
(e) Notwithstanding anything to the contrary contained in any
Letter of Credit Agreement, to the extent that the terms of this Agreement shall
be inconsistent with the terms of such Letter of Credit Agreement, the terms of
this Agreement shall govern.
2.11. ABSOLUTE OBLIGATION WITH RESPECT TO LETTER OF CREDIT PAYMENTS
The Borrower's obligation to reimburse the Bank for each payment
under or in respect of a Letter of Credit shall be absolute and unconditional
under any and all circumstances and irrespective of any set-off, counterclaim or
defense to payment which the Borrower may have or have had against the
beneficiary of such Letter of Credit, the Bank or any other Person, including
any defense based on the failure of any drawing to conform to the terms of such
Letter of Credit, any drawing document proving to be forged, fraudulent or
invalid, or the illegality,
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invalidity, irregularity or unenforceability of such Letter of Credit, this
Agreement or any other Loan Document, PROVIDED THAT with respect to any Letter
of Credit, the foregoing shall not relieve the Bank of any liability it may have
to the Borrower for any actual damages sustained by the Borrower arising from a
wrongful payment under such Letter of Credit made as a result of the Bank's
gross negligence or willful misconduct.
3. INTEREST, YIELD PROTECTIONS, ETC.
3.1. INTEREST RATE AND PAYMENT DATES
(a) PRIOR TO MATURITY. Except as otherwise provided in Sections
3.1(b) and 3.1(c), prior to maturity, the Loans shall bear interest on the
outstanding principal balance thereof at the applicable interest rate or rates
per annum set forth below:
Advances Interest Rate
-------- -------------
Each ABR Advance Alternate Base Rate
Each LIBOR Advance LIBOR for the applicable Interest Period
PLUS the Applicable Margin
(b) LATE CHARGES. If all or any portion of the principal balance of
or interest payable on any of the Loans or any other amount payable under the
Loan Documents shall not be paid when due (whether at the stated maturity
thereof, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum (whether before or after the entry of a judgment thereon)
equal to 2% PLUS the rate which would otherwise be applicable pursuant to
Section 3.1(a), from the date such amount was due to the date such amount is
paid in full. For purposes of the preceding sentence, the rate applicable
pursuant to Section 3.1(a) to any overdue principal, interest or other amount
payable under the Loan Documents shall be (i) in the case of an overdue
principal balance of any LIBOR Advance, the applicable LIBOR PLUS the Applicable
Margin until the last day of the applicable Interest Period (or the earlier
termination thereof pursuant to this Agreement) and thereafter at the Alternate
Base Rate and (ii) in all other cases, the Alternate Base Rate. All such
interest shall be payable on demand.
(c) COMPUTATION. Interest on (i) ABR Advances to the extent based
on the Prime Rate shall be calculated on the basis of a 365 or 366-day year (as
the case may be), and (ii) ABR Advances (to the extent based on the Federal
Funds Rate), and LIBOR Advances shall be calculated on the basis of a 360-day
year for the actual number of days elapsed. Except as otherwise provided in
Section 3.1(b), interest shall be payable in arrears on each Interest Payment
Date and upon each payment (including prepayment) of the Loans. Any change in
the interest rate on the Loans resulting from a change in the Alternate Base
Rate or reserve requirements shall become effective as of the opening of
business on the day on which such change shall become effective. Each
determination of the Alternate Base Rate or a LIBOR by the Bank pursuant to this
Agreement shall be conclusive and binding on all parties hereto absent manifest
error. At no time shall the interest rate payable on the Loans, together with
the fees and
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all other amounts payable under the Loan Documents to the Bank, to the extent
the same are construed to constitute interest, exceed the maximum rate of
interest permitted by applicable law.
3.2. FEES
(a) RESERVED.
(b) RESERVED.
(c) LETTER OF CREDIT FEES. The Borrower agrees to pay to the Bank
the Bank's standard fees with respect to each Letter of Credit, plus an issuance
fee equal to 1.50% of the face amount of such Letter of Credit.
3.3. CONVERSIONS
(a) Provided no Default or Event of Default shall exist, the
Borrower may elect from time to time to convert one or more LIBOR Advances to
ABR Advances by submitting a duly executed Notice of Conversion to the Bank at
least one Business Day prior to such election, which notice shall be
irrevocable, specifying the amount to be converted, PROVIDED THAT any such
conversion of LIBOR Advances shall only be made on the last day of the Interest
Period applicable thereto. In addition, the Borrower may elect from time to time
to (i) convert ABR Advances to LIBOR Advances and (ii) continue LIBOR Advances
as new LIBOR Advances, in each case by giving the Bank at least three Business
Days' prior irrevocable notice of such election, specifying the amount to be so
converted and the initial Interest Period relating thereto, PROVIDED THAT any
such conversion of ABR Advances to LIBOR Advances shall only be made on a
Business Day and any such conversion of LIBOR Advances to new LIBOR Advances
shall only be made on the last day of the Interest Period applicable to the
LIBOR Advances which are to be converted to such new LIBOR Advances. Advances
may be converted pursuant to this Section in whole or in part, PROVIDED THAT the
amount to be converted to a LIBOR Advance, when aggregated with any LIBOR
Advance to be made on such date in accordance with Section 2.5(a) and having the
same Interest Period, shall be $500,000 or a whole multiple of $100,000 in
excess thereof.
(b) Upon the occurrence and during the continuance of a Default or
an Event of Default, all LIBOR Advances shall be automatically converted to ABR
Advances on the last day of the applicable Interest Period.
(c) Each conversion shall be effected by the Bank by applying the
proceeds of the new ABR Advance or LIBOR Advance, as the case may be, to the
Advances (or portion thereof) being converted. Any such conversion shall not
constitute a borrowing for purposes of Section 6.
(d) If the Borrower shall have failed to elect to continue a LIBOR
Advance as a new LIBOR Advance prior to the expiration of its Interest Period,
the amount of the Loan represented by such Advance shall be automatically
converted to an ABR Advance at the expiration of its Interest Period.
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3.4. INDEMNIFICATION FOR LOSS
Notwithstanding anything contained herein to the contrary, if the
Borrower shall fail for any reason to borrow or convert an Advance after it
shall have given notice to do so in which it shall have requested a LIBOR
Advance, or if a LIBOR Advance shall be terminated for any reason prior to the
last day of the Interest Period applicable thereto, or if any repayment or
prepayment of the principal amount of a LIBOR Advance is made by the Borrower
for any reason on a date which is prior to the last day of the Interest Period
applicable thereto, the Borrower agrees to indemnify the Bank against, and to
pay on demand directly to the Bank the amount (calculated by the Bank using any
method chosen by the Bank which is customarily used by the Bank for such
purpose) equal to any loss or out-of-pocket expense suffered by the Bank as a
result of such failure to borrow or convert, or such termination, repayment or
prepayment, including any loss, cost or expense suffered by the Bank in
liquidating or employing deposits acquired to fund or maintain the funding of
such LIBOR Advance, or redeploying funds prepaid or repaid, in amounts which
correspond to such LIBOR Advance, and any internal processing charge customarily
charged by the Bank in connection therewith.
3.5. CAPITAL ADEQUACY
If the amount of capital required or expected to be maintained by
the Bank or any Person directly or indirectly owning or controlling the Bank
(each a "CONTROL PERSON"), shall be affected by the occurrence of a Regulatory
Change and the Bank shall have determined that such Regulatory Change shall have
had or will thereafter have the effect of reducing (i) the rate of return on the
Bank's or such Control Person's capital, or (ii) the asset value to the Bank or
such Control Person of the Loans made or maintained by the Bank or the
Reimbursement Obligations, in any case to a level below that which the Bank or
such Control Person could have achieved or would thereafter be able to achieve
but for such Regulatory Change (after taking into account the Bank's or such
Control Person's policies regarding capital adequacy) by an amount deemed by the
Bank to be material to the Bank or Control Person, then, within ten days after
demand by the Bank, the Borrower shall pay to the Bank or such Control Person
such additional amount or amounts as shall be sufficient to compensate the Bank
or such Control Person, as the case may be, for such reduction.
3.6. REIMBURSEMENT FOR INCREASED COSTS
If the Bank shall determine that a Regulatory Change:
(a) does or shall subject it to any Taxes of any kind
whatsoever with respect to any LIBOR Advances or its obligations under this
Agreement to make LIBOR Advances, or change the basis of taxation of
payments to it of principal, interest or any other amount payable hereunder
in respect of its LIBOR Advances, or impose on the Bank any other
condition, including any Taxes required to be withheld from any amounts
payable under the Loan Documents (except for imposition of, or change in
the rate of, tax on the overall net income of the Bank); or
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(b) does or shall impose, modify or make applicable any
reserve, special deposit, compulsory loan, assessment, increased cost or
similar requirement against assets held by, or deposits of, or advances or
loans by, or other credit extended by, or any other acquisition of funds
by, any office of the Bank in respect of its LIBOR Advances which is not
otherwise included in the determination of a LIBOR;
and the result of any of the foregoing is to increase the cost to the Bank of
making, renewing, converting or maintaining its LIBOR Advances or its commitment
to make such LIBOR Advances, or to reduce any amount receivable hereunder in
respect of its LIBOR Advances, then, in any such case, the Borrower shall pay
the Bank within ten days after demand therefor, such additional amount as is
sufficient to compensate the Bank for such additional cost or reduction in such
amount receivable which the Bank deems to be material as determined by the Bank.
No failure by the Bank to demand, and no delay in demanding, compensation for
any increased cost shall constitute a waiver of its right to demand such
compensation at any time. A statement setting forth the calculations of any
additional amounts payable pursuant to this Section submitted by the Bank to the
Borrower shall be conclusive absent manifest error.
3.7. ILLEGALITY OF FUNDING
Notwithstanding any other provision hereof, if the Bank shall
reasonably determine that any law, regulation, treaty or directive, or any
change therein or in the interpretation or application thereof, shall make it
unlawful for the Bank to make or maintain any LIBOR Advance as contemplated by
this Agreement, the Bank shall promptly notify the Borrower thereof, and (i) the
commitment of the Bank to make such LIBOR Advances or convert ABR Advances to
LIBOR Advances shall forthwith be suspended, (ii) the Bank shall fund each
requested LIBOR Advance as an ABR Advance and (iii) the Loans then outstanding
as such LIBOR Advances shall be converted automatically to ABR Advances on the
last day of the then current Interest Period applicable thereto or at such
earlier time as may be required by law. If the commitment of the Bank with
respect to LIBOR Advances is suspended pursuant to this Section and the Bank
shall have obtained actual knowledge that it is once again legal for the Bank to
make or maintain LIBOR Advances, the Bank shall promptly notify the Borrower
thereof and, upon receipt of such notice by the Borrower, the Bank's commitment
to make or maintain LIBOR Advances shall be reinstated.
3.8. SUBSTITUTED INTEREST RATE
In the event that (i) the Bank shall have determined (which
determination shall be conclusive and binding upon the Borrower) that by reason
of circumstances affecting the interbank eurodollar market either adequate and
reasonable means do not exist for ascertaining LIBOR applicable pursuant to
Section 3.1 or (ii) the Bank shall have determined (which determination shall be
conclusive and binding on the Borrower) that the applicable LIBOR will not
adequately and fairly reflect the cost to the Bank of maintaining or funding
loans bearing interest based on such LIBOR, with respect to any portion of the
Loans that the Borrower has requested be made as or converted to LIBOR Advances
(each, an "AFFECTED ADVANCE"), the Bank shall promptly notify the Borrower (by
telephone or otherwise, to be promptly confirmed in
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writing) of such determination, on or, to the extent practicable, prior to the
requested Borrowing Date or Conversion Date for such Affected Advances. If the
Bank shall give such notice, (a) any Affected Advances shall be made as ABR
Advances, (b) the Advances (or any portion thereof) that were to have been
converted to Affected Advances shall be converted to ABR Advances and (c) any
outstanding Affected Advances shall be converted, on the last day of the then
current Interest Period with respect thereto, to ABR Advances. Until any notice
under clauses (i) or (ii), as the case may be, of this section has been
withdrawn by the Bank (by notice to the Borrower promptly upon either (x) the
Bank having determined that such circumstances affecting the interbank
eurodollar market no longer exist and that adequate and reasonable means do
exist for determining LIBOR pursuant to Section 3.1 or (y) the Bank having
determined that circumstances no longer render the Advances (or any portion
thereof) Affected Advances), no further LIBOR Advances shall be required to be
made by the Bank, nor shall the Borrower have the right to convert all or any
portion of the Loans to or as LIBOR Advances.
3.9. TAXES
All payments made by the Borrower under the Loan Documents shall be
made free and clear of, and without reduction for or on account of, any Taxes
required by law to be withheld from any amounts payable under the Loan
Documents. In the event that the Borrower is prohibited by law from making
payments hereunder free of deductions or withholdings, then the Borrower shall
pay such additional amounts to the Bank as may be necessary in order that the
actual amounts received by the Bank in respect of interest and any other amounts
payable under the Loan Documents after deduction or withholding (and after
payment of any additional Taxes or other charges due as a consequence of the
payment of such additional amounts) shall equal the amount that would have been
received if such deduction or withholding were not required.
3.10. OPTION TO FUND
The Bank has indicated that, if the Borrower requests a LIBOR
Advance, the Bank may wish to purchase one or more deposits in order to fund or
maintain its funding of such LIBOR Advance during the Interest Period with
respect thereto; it being understood that the provisions of this Agreement
relating to such funding are included only for the purpose of determining the
rate of interest to be paid in respect of such LIBOR Advance and any amounts
owing under Sections 3.4 and 3.6. The Bank shall be entitled to fund and
maintain its funding of all or any part of each LIBOR Advance in any manner it
sees fit, but all such determinations hereunder shall be made as if the Bank had
actually funded and maintained each LIBOR Advance during the applicable Interest
Period through the purchase of deposits in an amount equal to such LIBOR Advance
having a maturity corresponding to such Interest Period. The Bank may fund each
LIBOR Advance from or for the account of any branch or office of the Bank as the
Bank may choose from time to time.
4. REPRESENTATIONS AND WARRANTIES
In order to induce the Bank to enter into this Agreement and to make the
Loans to the Borrower, the Borrower represents and warrants that:
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4.1. SUBSIDIARIES; CAPITALIZATION
As of the Effective Date, the only Subsidiaries of the Borrower are
the companies listed on SCHEDULE 4.1, and the authorized, issued and outstanding
Capital Stock of the Borrower and each such Subsidiary is as set forth on
SCHEDULE 4.1.
4.2. EXISTENCE AND POWER
The Borrower is duly organized or formed and validly existing in
good standing under the laws of the jurisdiction of its incorporation or
formation, as the case may be, has all requisite power and authority to own its
property and to carry on its business as now conducted, and is in good standing
and authorized to do business in each jurisdiction in which the nature of the
business conducted therein or the property owned by it therein makes such
qualification necessary, except where the failure to be so qualified could have
a Material Adverse Effect.
4.3. AUTHORITY AND EXECUTION
The Borrower has full legal power and authority to enter into,
execute, deliver and perform the terms of the Loan Documents, all of which have
been duly authorized by all proper and necessary corporate action and are in
full compliance with its Organizational Documents. The Borrower has duly
executed and delivered the Loan Documents.
4.4. BINDING AGREEMENT
The Loan Documents constitute, the valid and legally binding
obligations of the Borrower, enforceable in accordance with their respective
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization or other similar laws affecting the enforcement of
creditors' rights generally.
4.5. LITIGATION
There are no actions, suits or proceedings at law or in equity or by
or before any Governmental Authority (whether purportedly on behalf of the
Borrower) pending or, to the knowledge of the Borrower, threatened against the
Borrower, or which may affect the property or rights of the Borrower, which (i)
could reasonably be expected to have a Material Adverse Effect, (ii) call into
question the validity or enforceability of, or otherwise seek to invalidate, any
Loan Document, or (iii) might, individually or in the aggregate, materially and
adversely affect any of the transactions contemplated by the Loan Documents.
4.6. REQUIRED CONSENTS
Except for information filings required to be made in the ordinary
course of business which are not a condition to the performance by the Borrower
under the Loan Documents, no consent, authorization or approval of, filing with,
notice to, or exemption by,
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stockholders or holders of any other equity interest, any Governmental Authority
or any other Person is required to authorize, or is required in connection with
the execution, delivery and performance of the Loan Documents or is required as
a condition to the validity or enforceability of the Loan Documents.
4.7. ABSENCE OF DEFAULTS; NO CONFLICTING AGREEMENTS
(a) The Borrower is not in default under any mortgage, indenture,
contract or agreement to which it is a party or by which it or any of its
property is bound, the effect of which default could reasonably be expected to
have a Material Adverse Effect. The execution, delivery or carrying out of the
terms of the Loan Documents will not constitute a default under, or result in
the creation or imposition of, or obligation to create, any Lien upon any
property of the Borrower or result in a breach of or require the mandatory
repayment of or other acceleration of payment under or pursuant to the terms of
any such mortgage, indenture, contract or agreement.
(b) The Borrower is not in default with respect to any judgment,
order, writ, injunction, decree or decision of any Governmental Authority which
default could reasonably be expected to have a Material Adverse Effect.
4.8. COMPLIANCE WITH APPLICABLE LAWS
The Borrower is complying in all material respects with all
statutes, regulations, rules and orders of all Governmental Authorities which
are applicable to the Borrower, a violation of which could reasonably be
expected to have a Material Adverse Effect.
4.9. TAXES
The Borrower has filed or caused to be filed all tax returns
required to be filed and has paid, or has made adequate provision for the
payment of, all taxes shown to be due and payable on said returns or in any
assessments made against it (other than those being contested as required under
Section 7.4) which would be material to the Borrower or any of its Subsidiaries,
and no tax Liens have been filed with respect thereto. The charges, accruals and
reserves on the books of the Borrower with respect to all taxes are, to the best
knowledge of the Borrower, adequate for the payment of such taxes, and the
Borrower knows of no unpaid assessment which is due and payable against the
Borrower or any claims being asserted which could reasonably be expected to have
a Material Adverse Effect, except such thereof as are being contested as
required under Section 7.4, and for which adequate reserves have been set aside
in accordance with GAAP.
4.10. GOVERNMENTAL REGULATIONS
The Borrower is not subject to regulation under the Investment
Company Act of 1940, as amended, or is subject to any statute or regulation
which prohibits or restricts the incurrence of Indebtedness.
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4.11. FEDERAL RESERVE REGULATIONS; USE OF LOAN PROCEEDS
The Borrower is not engaged principally, or as one of its important
activities, in the business of extending credit for the purpose of purchasing or
carrying any Margin Stock. After giving effect to the making of each Loan,
Margin Stock will constitute less than 25% of the assets (as determined by any
reasonable method) of the Borrower and its Subsidiaries.
4.12. PLANS
The only Pension Plans in effect as of the Effective Date are listed
on SCHEDULE 4.12. Each Employee Benefit Plan is in compliance with ERISA and the
Code, where applicable, in all material respects. The Borrower and ERISA
Affiliates have complied with the requirements of Section 515 of ERISA with
respect to each Pension Plan which is a Multiemployer Plan. As of the Effective
Date, the Borrower and its Subsidiaries and ERISA Affiliates have no liability
under Section 4201 or 4204 of ERISA (including the obligation to satisfy
secondary liability as a result of purchaser default). The Borrower and its
Subsidiaries and ERISA Affiliates have, as of the Effective Date, made all
contributions or payments to or under each such Pension Plan required by law or
the terms of such Pension Plan or any contract or agreement with respect
thereto. No material liability to the PBGC has been, or is expected by the
Borrower or any ERISA Affiliate to be incurred by the Borrower or any ERISA
Affiliate. Each Employee Benefit Plan which is a group health plan within the
meaning of Section 5000(b)(1) of the Code is in material compliance with the
continuation of health care coverage requirements of Section 4980B of the Code.
4.13. FINANCIAL STATEMENTS
The Borrower has heretofore delivered to the Bank copies of the
audited consolidated balance sheets of the Borrower as of December 31, 2001 and
the related consolidated statements of operations, stockholder's equity and cash
flows for the fiscal years then ended (with the related notes and schedules, the
"FINANCIAL STATEMENTS"). The Financial Statements fairly present the
consolidated financial condition and results of the operations of the Borrower
as of the dates and for the periods indicated therein and have been prepared in
conformity with GAAP. Except as reflected in the Financial Statements or in the
notes thereto, the Borrower has no obligation or liability of any kind (whether
fixed, accrued, Contingent, unmatured or otherwise) which, in accordance with
GAAP, should have been shown on the Financial Statements and was not. Since the
date of the Financial Statements, the Borrower has conducted its business only
in the ordinary course and there has been no Material Adverse Change.
4.14. PROPERTY
The Borrower has (i) good and marketable title to all of its
property, title to which is material to the Borrower or such Subsidiary and (ii)
a valid leasehold interest in all property, a leasehold interest in which is
material to the Borrower, in each case subject to no Liens, except Permitted
Liens.
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4.15. INTELLECTUAL PROPERTY; LICENSES
The Borrower owns, or has the legal right to use, all United States
trademarks, trademark applications, trade names, service marks, and copyrights
and all technology, know-how, and processes necessary for each of them to
conduct its business as currently conducted (the "INTELLECTUAL PROPERTY"),
except for those the failure to own or have the legal right to use would not be
reasonably expected to have a Material Adverse Effect. No claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property, nor does the Borrower know of any such claim, and to
the knowledge of the Borrower the use of such Intellectual Property by the
Borrower does not infringe on the rights of any Person, except for such claims
and infringements that in the aggregate would not be reasonably expected to have
a Material Adverse Effect. No event has occurred which permits or, to the best
knowledge of the Borrower, after notice or the lapse of time or both, or any
other condition, could reasonably be expected to permit, the revocation or
termination of any license or other right to use Intellectual Property which
revocation or termination could reasonably be expected to have a Material
Adverse Effect.
4.16. ENVIRONMENTAL MATTERS
(a) No Hazardous Substances have been generated or manufactured on,
transported to or from, treated at, stored at or discharged from any Real
Property in material violation of any Environmental Laws; no Hazardous
Substances have been discharged into subsurface waters under any Real Property
in material violation of any Environmental Laws; no Hazardous Substances have
been discharged from any Real Property on or into property or waters (including
subsurface waters) adjacent to any Real Property in material violation of any
Environmental Laws; and there are not now, nor ever have been, on any Real
Property any underground or above ground storage tanks regulated under any
Environmental Laws.
(b) The Borrower (i) has not received notice (written or oral) or
otherwise learned of any claim, demand, suit, action, proceeding, event,
condition, report, directive, Lien, violation, non-compliance or investigation
indicating or concerning any potential or actual liability (including, without
limitation, potential liability for enforcement, investigatory costs, cleanup
costs, government response costs, removal costs, remedial costs, natural
resources damages, property damages, personal injuries or penalties) arising in
connection with: (x) any non-compliance with or violation of the requirements of
any applicable Environmental Laws, or (y) the presence of any Hazardous
Substance on any Real Property (or any Real Property previously owned by the
Borrower or any of its Subsidiaries) or the release or threatened release of any
Hazardous Substance into the environment, (ii) has no threatened or actual
liability in connection with the presence of any Hazardous Substance on any Real
Property (or any Real Property previously owned by the Borrower) or the release
or threatened release of any Hazardous Substance into the environment, (iii) has
received notice of any federal or state investigation evaluating whether any
remedial action is needed to respond to the presence of any Hazardous Substance
on any Real Property (or any Real Property previously owned by the Borrower or
any of its Subsidiaries) or a release or threatened release of any Hazardous
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Substance into the environment for which the Borrower is or may be liable, or
(iv) has received notice that the Borrower is or may be liable to any Person
under any Environmental Law.
4.17. SOLVENCY
Immediately after giving effect to the transactions contemplated by
the Loan Documents, the Borrower will be Solvent.
4.18. SECURITY INTERESTS
Subject to the continuing possession by the Bank of the Collateral,
the security interests granted under the Collateral Documents will constitute
valid, binding and continuing duly perfected first priority Liens in and to the
Collateral.
4.19. NO MISREPRESENTATION
No representation or warranty contained in any Loan Document and no
certificate or report from time to time furnished by the Borrower or any of its
Subsidiaries in connection with the transactions contemplated hereby and
thereby, contains or will contain a misstatement of material fact, or, to the
best knowledge of the Borrower, omits or will omit to state a material fact
required to be stated in order to make the statements therein contained not
misleading in the light of the circumstances under which made, PROVIDED THAT any
projections or pro-forma financial information contained therein are based upon
good faith estimates and assumptions believed by the Borrower to be reasonable
at the time made, it being recognized by the Bank that such projections as to
future events are not to be viewed as facts, and that actual results during the
period or periods covered thereby may differ from the projected results.
5. CONDITIONS TO FIRST LOANS
In addition to the conditions precedent set forth in Article 6, the
obligation of the Bank to make Loans from and after the Effective Date shall be
subject to the fulfillment of the following conditions precedent:
5.1. EVIDENCE OF ACTION
The Bank shall have received a certificate, dated the Effective
Date, of the Secretary or Assistant Secretary of the Borrower (i) attaching a
true and complete copy of the resolutions of its board of directors or the
equivalent and of all documents evidencing all necessary corporate or similar
action (in form and substance satisfactory to the Bank) taken by it to authorize
the Loan Documents to which it is a party and the transactions contemplated
thereby, (ii) attaching a true and complete copy of its Organizational
Documents, (iii) setting forth the incumbency of its officers who may sign the
Loan Documents, including therein a signature specimen of such officer or
officers and (iv) attaching a certificate of good standing of the Secretary of
State of the jurisdiction of its formation and of each other jurisdiction in
which it is qualified to do business.
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5.2. THIS AGREEMENT
The Bank shall have received counterparts of this Agreement duly
executed by an Authorized Signatory of the Borrower.
5.3. NOTE
The Bank shall have received the Note dated the Effective Date and
duly executed by an Authorized Signatory of the Borrower.
5.4. SECURITY AGREEMENT
The Bank shall have received the Security Agreement dated the
Effective Date and duly executed by an Authorized Signatory of the Borrower,
together with the following:
(a) the Collateral, which shall have been credited to the
Collateral Account, and shall, as of the Effective Date, have a Market Value of
not less than $6,000,000; and
(b) such other documents as the Bank may require in connection with
the perfection of its security interests therein.
5.5. OFFICER'S CERTIFICATE
The Bank shall have received a certificate, in all respects
satisfactory to the Bank, of an officer of the Borrower, dated the Effective
Date, certifying that:
(a) ABSENCE OF LITIGATION. There shall be no injunction, writ,
preliminary restraining order or other order of any nature issued by any
Governmental Authority in any respect affecting the transactions provided for in
the Loan Documents and no action or proceeding by or before any Governmental
Authority shall have been commenced or be pending or, to the knowledge of the
Borrower, threatened, seeking to prevent or delay the transactions contemplated
by the Loan Documents or challenging any other terms and provisions hereof or
thereof or seeking any damages in connection therewith.
(b) APPROVALS AND CONSENTS. All approvals and consents of all
Persons required to be obtained in connection with the consummation of the
transactions contemplated by the Loan Documents shall have been obtained and
shall be in full force and effect, and all required notices shall have been
given and all required waiting periods shall have expired.
(c) ABSENCE OF MATERIAL ADVERSE CHANGE. No Material Adverse Change
in the business, assets, liabilities, financial condition or results of
operations of the Borrower shall have occurred since the date of the Financial
Statements.
(d) NO LIENS. Upon the making of Loans on the Effective Date, there
will exist no Liens on the Collateral other than the Lien thereon in favor of
the Bank.
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5.6. COMPLIANCE CERTIFICATE
The Bank shall have received a Compliance Certificate, certified by
a Financial Officer of the Borrower.
5.7. OPINION OF COUNSEL TO THE BORROWER
The Bank shall have received an opinion, dated the Effective Date,
of ▇▇▇▇▇▇ & ▇▇▇▇, counsel to the Borrower, which shall be addressed to the Bank
and in form and substance satisfactory to the Bank and Special Counsel. It is
understood that such opinion is being delivered to the Bank at the direction of
the Borrower and that the Bank may and will rely on such opinion.
5.8. SEARCH REPORTS AND RELATED DOCUMENTS
The Bank shall have received UCC, tax and judgment lien search
reports with respect to each applicable public office where Liens are or may be
filed, disclosing that there are no Liens on the Collateral and which is
otherwise satisfactory to the Bank.
5.9. APPROVAL OF SPECIAL COUNSEL
All legal matters incident to the making of the Loans on the
Effective Date shall be reasonably satisfactory to Special Counsel.
5.10. FEES
All fees payable to the Bank on the Effective Date shall have been
paid.
5.11. FEES AND EXPENSES OF SPECIAL COUNSEL
The fees and expenses of Special Counsel in connection with the
preparation, negotiation and closing of the Loan Documents shall have been paid.
5.12. OTHER DOCUMENTS
The Bank shall have received such other documents, each in form and
substance reasonably satisfactory to the Bank, as the Bank shall reasonably
require.
6. CONDITIONS OF LENDING
The obligation of the Bank to make any Loan or issue any Letter of Credit
on each Borrowing Date is subject to the satisfaction of the following
conditions precedent as of such Borrowing Date:
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6.1. COMPLIANCE
On each Borrowing Date and after giving effect to the Loans to be
made thereon (i) there shall exist no Default or Event of Default and (ii) the
representations and warranties contained in the Loan Documents shall be true and
correct with the same effect as though such representations and warranties had
been made on such Borrowing Date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true and correct on and as of
such earlier date. Each borrowing by the Borrower shall constitute a
certification by the Borrower as of such Borrowing Date to the foregoing effect.
6.2. BORROWING REQUEST / LETTER OF CREDIT AGREEMENT
(i) With respect to each Loan, the Bank shall have received a
Borrowing Request, and (ii) with respect to each Letter of Credit, the Bank
shall have received a Letter of Credit Agreement, in each case duly executed by
an Authorized Signatory of the Borrower.
6.3. LOAN CLOSINGS
All documents required by the provisions of the Loan Documents to be
executed or delivered to the Bank on or before the applicable Borrowing Date
shall have been executed and shall have been delivered at the office of the Bank
set forth in Section 10.2 on or before such Borrowing Date.
6.4. OTHER DOCUMENTS
The Bank shall have received such other documents as the Bank shall
reasonably request.
7. AFFIRMATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
remains outstanding and unpaid, any Letter of Credit remains outstanding, or any
other amount is owing under any Loan Document to the Bank:
7.1. FINANCIAL STATEMENTS AND INFORMATION
The Borrower shall maintain a standard system of accounting in
accordance with GAAP, and furnish or cause to be furnished to the Bank:
(a) As soon as available, but in any event within 90 days after the
end of each fiscal year, a copy of an audited balance sheet of the Borrower as
at the end of such fiscal year, together with the related statements of
operations, stockholder's equity and cash flows as of and for such fiscal year,
setting forth in comparative form the figures for the preceding fiscal year,
together with an unqualified report thereon of the Accountants.
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(b) As soon as available, but in any event within 60 days after the
end of each of the first three fiscal quarters of each fiscal year, a copy of an
unaudited balance sheet of the Borrower as at the end of each such quarterly
period, together with the related statements of operations and cash flows for
such period and for the elapsed portion of the fiscal year through such date,
setting forth in comparative form the figures for the corresponding periods of
the preceding fiscal year, certified by a Financial Officer of the Borrower as
being complete and correct in all material respects and as presenting fairly the
financial condition and the results of operations of the Borrower (subject to
normal year-end adjustments).
(c) Concurrently with the delivery of the financial statements
specified in paragraphs (a) and (b) of this section, a Compliance Certificate,
signed by a Financial Officer of the Borrower.
(d) Such other information as the Bank may reasonably request from
time to time.
7.2. CERTIFICATES; OTHER INFORMATION
The Borrower shall furnish to the Bank:
(a) Prompt written notice if there shall occur and be continuing a
Default or an Event of Default; and
(b) Prompt written notice of: (i) any citation, summons, subpoena,
order to show cause or other document naming the Borrower a
party to any proceeding before any Governmental Authority which
could reasonably be expected to have a Material Adverse Effect
or which calls into question the validity or enforceability of
any of the Loan Documents, and include with such notice a copy
of such citation, summons, subpoena, order to show cause or
other document, (ii) any lapse or other termination of any
material license, permit, franchise or other authorization
issued to the Borrower by any Person or Governmental Authority,
and (iii) any refusal by any Person or Governmental Authority
to renew or extend any such material license, permit, franchise
or other authorization, which lapse, termination, refusal or
dispute could reasonably be expected to have a Material Adverse
Effect.
7.3. LEGAL EXISTENCE
The Borrower shall maintain its corporate, partnership or analogous
existence, as the case may be, in good standing in the jurisdiction of its
incorporation or formation and in each other jurisdiction in which the failure
so to do could reasonably be expected to have a Material Adverse Effect.
7.4. TAXES
The Borrower shall pay and discharge when due all Taxes upon or with
respect to the Borrower and all Taxes upon the income, profits and property of
the Borrower, which if unpaid, could reasonably be expected to have a Material
Adverse Effect or become a Lien on
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property of the Borrower, unless and to the extent only that such Taxes shall be
contested in good faith and by appropriate proceedings diligently conducted by
the Borrower or such Subsidiary and provided that any such contested Tax, shall
not constitute, or create, a Lien on any property of the Borrower senior to the
Liens granted to the Bank pursuant to the Collateral Documents on such property,
and, provided further, that the Borrower shall give the Bank prompt notice of
such contest and that such reserve or other appropriate provision as shall be
required in accordance with GAAP shall have been made therefor.
7.5. INSURANCE
The Borrower shall maintain with financially sound and reputable
insurance companies insurance in at least such amounts and against at least such
risks (but including in any event public liability, product liability and
business interruption coverage) as are usually insured against in the same
general area by companies engaged in the same or a similar business; and furnish
to the Bank, upon written request, full information as to the insurance carried.
7.6. PERFORMANCE OF OBLIGATIONS
The Borrower shall pay and discharge when due all lawful
Indebtedness, obligations and claims for labor, materials and supplies or
otherwise which, if unpaid, might have a Material Adverse Effect, unless and to
the extent only that the validity of such Indebtedness, obligation or claim
shall be contested in good faith and by appropriate proceedings diligently
conducted and that any such contested Indebtedness, obligations or claims shall
not constitute, or create, a Lien on any property of the Borrower senior to the
Lien granted to the Bank pursuant to the Collateral Documents on such property,
and provided that the Borrower shall give the Bank prompt notice of any such
contest and that such reserve or other appropriate provision as shall be
required in accordance with GAAP shall have been made therefor.
7.7. CONDITION OF PROPERTY
The Borrower shall at all times, maintain, protect and keep in good
repair, working order and condition (ordinary wear and tear excepted) all
property necessary to the operation of the Borrower's business.
7.8. OBSERVANCE OF LEGAL REQUIREMENTS
The Borrower shall observe and comply in all respects with all laws,
ordinances, orders, judgments, rules, regulations, certifications, franchises,
permits, licenses, directions and requirements of all Governmental Authorities,
which now or at any time hereafter may be applicable to it, a violation of which
could reasonably be expected to have a Material Adverse Effect, except such
thereof as shall be contested in good faith and by appropriate proceedings
diligently conducted by it, provided that the Borrower shall give the Bank
prompt notice of such contest and that such reserve or other appropriate
provision as shall be required in accordance with GAAP shall have been made
therefor.
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7.9. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS
Upon reasonable prior notice, the Borrower shall permit
representatives of the Bank to visit the offices of the Borrower during normal
business hours, to examine the books and records thereof and the reports of
independent accountants relating thereto, and to make copies or extracts
therefrom, to discuss the affairs of the Borrower with the respective officers
thereof, and to examine and inspect the property of the Borrower and to meet and
discuss the affairs of the Borrower with the Accountants. Prior to the
occurrence of an Event of Default, such visit, examination, inspection and
copying shall be at the expense of the Bank and shall not occur without the
approval of the Borrower more than once in any calendar year.
7.10. AUTHORIZATIONS
The Borrower shall maintain in full force and effect, all material
licenses, franchises, permits, licenses, authorizations and other rights as are
necessary for the conduct of its business.
8. NEGATIVE COVENANTS
The Borrower agrees that, so long as this Agreement is in effect, any Loan
remains outstanding and unpaid, any Letter of Credit remains outstanding, or any
other amount is owing under any Loan Document to the Bank, the Borrower shall
not, directly or indirectly:
8.1. LIENS
Create, incur, assume or suffer to exist any Lien upon any of the
Collateral other than Liens granted to the Bank pursuant to the Collateral
Documents.
8.2. MERGER; CONSOLIDATIONS
Consolidate with, be acquired by, merge into or with any Person or
enter into any binding agreement to do any of the foregoing which is not
contingent on obtaining the consent of the Bank, other than mergers in which the
Borrower shall be the surviving company after such merger is effective.
8.3. DISPOSITIONS
Make any Disposition.
8.4. BUSINESS AND NAME CHANGES
Materially change the nature of its business from that conducted on
the Effective Date, or alter or modify its name, structure or status, or change
its fiscal year from that in effect on the Effective Date.
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8.5. AMENDMENTS, ETC. OF CERTAIN AGREEMENTS
Enter into or agree to any amendment, modification or waiver of any
term or condition of its Organizational Documents in any way which would
adversely affect the interests of the Bank under any of the Loan Documents.
9. DEFAULT
9.1. EVENTS OF DEFAULT
The following shall each constitute an "EVENT OF DEFAULT" hereunder:
(a) The failure of the Borrower to make any payment of principal on
the Note, or in respect of any Reimbursement Obligation, when due and payable;
or
(b) The failure of the Borrower to make any payment of interest,
fees, expenses or other amounts payable under any Loan Document or otherwise, to
the Bank within five Business Days after the date when due and payable; or
(c) The failure of the Borrower to observe or perform any covenant
or agreement contained in Sections 2.9, 7.3 or Article 8; or
(d) The failure of the Borrower to observe or perform any other
term, covenant, or agreement contained in any Loan Document and such failure
shall have continued unremedied for a period of 30 days after the Borrower shall
have obtained knowledge thereof; or
(e) Any representation or warranty made by the Borrower (or by an
officer thereof on its behalf) in any Loan Document or in any certificate,
report, opinion (other than an opinion of counsel) or other document delivered
or to be delivered pursuant thereto, shall prove to have been incorrect or
misleading (whether because of misstatement or omission) in any material respect
when made; or
(f) Liabilities and/or other obligations of the Borrower (other
than the obligations under the Note and the Reimbursement Obligations), whether
as principal, guarantor, surety or other obligor, for the payment of any
Indebtedness or operating leases (i) shall become or shall be declared to be due
and payable prior to the expressed maturity thereof, or (ii) shall not be paid
when due or within any grace period for the payment thereof, (iii) any holder of
any such obligation shall have the right to declare such obligation due and
payable prior to the expressed maturity thereof or (iv) as a consequence of the
occurrence or continuation of any event or condition, the Borrower has become
obligated to purchase or repay any Indebtedness before its regularly scheduled
maturity date; or
(g) Any Change of Control shall occur; or
(h) The Borrower shall (i) suspend or discontinue its business,
(ii) make an assignment for the benefit of creditors, (iii) generally not be
paying its debts as such debts
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become due, (iv) admit in writing its inability to pay its debts as they become
due, (v) file a voluntary petition in bankruptcy, (vi) become insolvent (however
such insolvency shall be evidenced), (vii) file any petition or answer seeking
for itself any reorganization, arrangement, composition, readjustment of debt,
liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, (viii) petition or apply to any
tribunal for any receiver, custodian or any trustee for any substantial part of
its property, (ix) be the subject of any such proceeding filed against it which
remains undismissed for a period of 60 days, (x) file any answer admitting or
not contesting the material allegations of any such petition filed against it or
any order, judgment or decree approving such petition in any such proceeding,
(xi) seek, approve, consent to, or acquiesce in any such proceeding, or in the
appointment of any trustee, receiver, sequestrator, custodian, liquidator, or
fiscal agent for it, or any substantial part of its property, or an order is
entered appointing any such trustee, receiver, custodian, liquidator or fiscal
agent and such order remains in effect for 60 days, or (xii) take any formal
action for the purpose of effecting any of the foregoing or looking to the
liquidation or dissolution of the Borrower; or
(i) An order for relief is entered under the United States
bankruptcy laws or any other decree or order is entered by a court having
jurisdiction (i) adjudging the Borrower bankrupt or insolvent, (ii) approving as
properly filed a petition seeking reorganization, liquidation, arrangement,
adjustment or composition of or in respect of the Borrower under the United
States bankruptcy laws or any other applicable Federal or state law, (iii)
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of the Borrower or of any substantial part of the
property of any thereof, or (iv) ordering the winding up or liquidation of the
affairs of the Borrower and any such decree or order continues unstayed and in
effect for a period of 60 days; or
(j) Judgments or decrees against the Borrower aggregating in excess
of $100,000 shall remain unpaid, unstayed on appeal, undischarged, unbonded or
undismissed for a period of 30 days; or
(k) The occurrence of an Event of Default (beyond any applicable
notice or cure period) as defined in any Collateral Document; or
(l) Any Loan Document shall cease, for any reason, to be in full
force and effect, or the Borrower shall so assert in writing or shall disavow
any of its obligations thereunder; or
(m) (i) any Termination Event shall occur; (ii) any Accumulated
Funding Deficiency, whether waived, shall exist with respect to any Pension
Plan; (iii) any Person shall engage in any Prohibited Transaction involving any
Employee Benefit Plan; (iv) the Borrower or any ERISA Affiliate shall fail to
pay when due an amount which is payable by it to the PBGC or to a Pension Plan
under Title IV of ERISA; (v) the imposition of any tax under Section 4980B(a) of
the Code; (vi) the assessment of a civil penalty with respect to any Employee
Benefit Plan under Section 502(c) of ERISA; or (vii) any other event or
condition shall occur or exist with
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respect to an Employee Benefit Plan which in the case of clauses (i) through
(vi) would, individually or in the aggregate, have a Material Adverse Effect.
9.2. REMEDIES
(a) Upon the occurrence of an Event of Default or at any time
thereafter during the continuance thereof, (i) if such event is an Event of
Default specified in clause (h) or (i) above, the Commitments shall immediately
and automatically terminate and the Loans, all accrued and unpaid interest
thereon, any Reimbursement Obligations owing in respect of all outstanding
Letters of Credit and all other amounts owing under the Loan Documents shall
immediately become due and payable, the Borrower shall forthwith deposit with
the Bank an amount equal to the Letter of Credit Exposure in a cash collateral
account under the exclusive control of the Bank, and the Bank may exercise any
and all remedies and other rights provided in the Loan Documents, and (ii) if
such event is any other Event of Default, any or all of the following actions
may be taken: (A) the Bank may, by notice to the Borrower, declare the
Commitments terminated forthwith, whereupon the Commitments shall immediately
terminate, and (B) the Bank may, by notice of default to the Borrower, declare
the Loans, all accrued and unpaid interest thereon, any Reimbursement
Obligations owing in respect of all outstanding Letters of Credit and all other
amounts owing under the Loan Documents to be due and payable forthwith,
whereupon the same shall immediately become due and payable, the Borrower shall
forthwith deposit with the Bank an amount equal to the Letter of Credit Exposure
in a cash collateral account under the exclusive control of the Bank, and the
Bank may exercise any and all remedies and other rights provided in the Loan
Documents. Except as otherwise provided in this Section, presentment, demand,
protest and all other notices of any kind are hereby expressly waived. The
Borrower hereby further expressly waives and covenants not to assert any
appraisement, valuation, stay, extension, redemption or similar laws, now or at
any time hereafter in force which might delay, prevent or otherwise impede the
performance or enforcement of any Loan Document.
(b) In the event that the Commitments shall have been terminated or
the Loans, all accrued and unpaid interest thereon and all other amounts owing
under the Loan Documents shall have been declared due and payable pursuant to
the provisions of this section, any funds received by the Bank from or on behalf
of the Borrower shall be applied by the Bank in liquidation of the Loans, the
Reimbursement Obligations and the other obligations of the Borrower under the
Loan Documents in the following manner and order: (i) to the payment of interest
on the Loans; (ii) to the payment of the principal portion of any Loans in such
order as the Bank may determine in its absolute discretion; (iii) to the payment
of the Reimbursement Obligations; (iv) to the payment of any fees or expenses
due the Bank from the Borrower; (v) to reimburse the Bank for any expenses (to
the extent not paid pursuant to clause (iv) above) due from the Borrower
pursuant to the provisions of Section 10.5; and (vi) to the payment of any other
amounts owed to the Bank under any Loan Document.
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10. OTHER PROVISIONS
10.1. AMENDMENTS AND WAIVERS
No amendment or waiver of any provision of this Agreement or any
Loan Document shall in any event be effective unless the same shall be in
writing and signed by all parties, and such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given.
10.2. NOTICES
All notices, requests and demands to or upon the respective parties
to the Loan Documents to be effective shall be in writing and, unless otherwise
expressly provided therein, shall be deemed to have been duly given, made and
received (i) when delivered by hand, (ii) one Business Day after having been
sent by overnight courier service, (iii) five days after being deposited with
the United States Postal Service as certified or registered mail, with
first-class postage and fees prepaid, or, (iv) when sent by facsimile
transmission upon electronic confirmation of receipt, addressed as follows in
the case of the Borrower or the Bank or addressed to such other addresses as to
which the Bank may be hereafter notified by the respective parties thereto or
any future holders of the Note:
The Borrower:
Meta Group Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ & ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
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The Bank:
The Bank of
New York
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇,
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
except that any notice, request or demand by the Borrower to or upon the Bank
pursuant to Sections 2.5 or 3.3 and any notice by either party of a change of
address shall not be effective until received. Any party to a Loan Document may
rely on signatures of the parties thereto which are transmitted by facsimile or
other electronic means as fully as if originally signed.
10.3. NO WAIVER; CUMULATIVE REMEDIES
No failure to exercise and no delay in exercising, on the part of
the Bank, any right, remedy, power or privilege under any Loan Document shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under any Loan Document preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges under the Loan Documents
are cumulative and not exclusive of any rights, remedies, powers and privileges
provided by law.
10.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND CERTAIN OBLIGATIONS
(a) All representations and warranties made under the Loan
Documents and in any document, certificate or statement delivered pursuant
thereto or in connection therewith shall survive the execution and delivery of
the Loan Documents.
(b) The obligations of the Borrower under Sections 3.4, 3.5, 3.6
(to the extent that such obligations under Sections 3.5 and 3.6 arose prior to
the termination of
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the Revolving Credit Commitment and the payment of the Loans), 3.9 and 10.5
shall survive the termination of the Revolving Credit Commitment and the payment
of the Loans and all other amounts payable under the Loan Documents.
10.5. EXPENSES
The Borrower agrees, promptly upon presentation of a statement or
invoice therefor, and whether or not any Loan is made or any Letter of Credit is
issued (i) to pay or reimburse the Bank for all its out-of-pocket costs and
expenses reasonably incurred in connection with the development, preparation and
execution of, the Loan Documents and any amendment, supplement or modification
thereto (whether or not executed or effective), any documents prepared in
connection therewith and the consummation of the transactions contemplated
thereby, including without limitation the reasonable fees and disbursements of
Special Counsel, (ii) to pay or reimburse the Bank for the cost of all audits
undertaken from time to time with respect to any Collateral (provided that prior
to the occurrence of an Event of Default the Borrower shall not be obligated to
pay for the cost of audits undertaken more frequently than once per year), all
costs incurred by the Bank to perfect its Lien in the Collateral, and any costs
or expenses incurred by the Bank in protecting its interest in the Collateral,
(iii) to pay or reimburse the Bank for all of its costs and expenses, including,
without limitation, reasonable fees and disbursements of Special Counsel or any
other counsel, incurred in connection with (A) any Default or Event of Default
and any enforcement or collection proceedings resulting therefrom or in
connection with the negotiation of any restructuring or "work-out" (whether
consummated or not) of the obligations of the Borrower under any of the Loan
Documents and (B) the enforcement of this section, and (iv) to pay, indemnify
and hold the Bank and each of its officers, directors and employees harmless
from and against any and all other liabilities, obligations, claims, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever (including, without limitation, reasonable
counsel fees and disbursements) with respect to the enforcement and performance
of the Loan Documents, the use of the proceeds of the Loans and the enforcement
and performance of the provisions of any subordination agreement involving the
Bank (all the foregoing in this clause (iv), collectively, the "INDEMNIFIED
LIABILITIES") and, if and to the extent that the foregoing indemnity may be
unenforceable for any reason, the Borrower agrees to make the maximum payment
not prohibited under applicable law; PROVIDED, HOWEVER, that the Borrower shall
have no obligation to pay Indemnified Liabilities to the Bank arising from the
finally adjudicated gross negligence or willful misconduct of the Bank or claims
between one indemnified party and another indemnified party.
10.6. SUCCESSORS AND ASSIGNS
This Agreement, the Note and the other Loan Documents to which the
Borrower is a party shall be binding upon and inure to the benefit of the
Borrower and the Bank, all future holders of the Note and their respective
successors and assigns, provided, however, that such the Borrower may neither
delegate its liabilities and obligations, nor assign its rights and benefits,
under any Loan Document to any Person. Notwithstanding anything to the contrary
contained in this Section, the Bank may at any time or from time to time assign
all or any portion of its rights
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under the Loan Documents to a Federal Reserve Bank, PROVIDED THAT any such
assignment shall not release such assignor from its obligations thereunder.
10.7. COUNTERPARTS
Each Loan Document (other than the Note) may be executed by one or
more of the parties thereto on any number of separate counterparts and all of
said counterparts taken together shall be deemed to constitute one and the same
document. It shall not be necessary in making proof of any Loan Document to
produce or account for more than one counterpart signed by the party to be
charged. A counterpart of any Loan Document and of any an amendment,
modification, consent or waiver to or of any Loan Document transmitted by
facsimile shall be deemed to be an originally executed counterpart.
10.8. SET-OFF
In addition to any rights and remedies of the Bank provided by law,
upon the occurrence of an Event of Default and the acceleration of the
obligations owing in connection with the Loan Documents, or at any time upon the
occurrence and during the continuance of an Event of Default under Sections
9.1(a) or (b), the Bank shall have the right, without prior notice to the
Borrower, any such notice being expressly waived by the Borrower to the extent
not prohibited by applicable law, to set-off and apply against any indebtedness,
whether matured or unmatured, of the Borrower to the Bank any amount owing from
the Bank to the Borrower, at, or at any time after, the happening of any of the
above-mentioned events. To the extent not prohibited by applicable law, the
aforesaid right of set-off may be exercised by the Bank against the Borrower, or
against any trustee in bankruptcy, custodian, debtor in possession, assignee for
the benefit of creditors, receiver, or execution, judgment or attachment
creditor of the Borrower, or against anyone else claiming through or against the
Borrower or such trustee in bankruptcy, custodian, debtor in possession,
assignee for the benefit of creditors, receiver, or execution, judgment or
attachment creditor, notwithstanding the fact that such right of set-off shall
not have been exercised by the Bank prior to the making, filing or issuance, or
service upon the Bank of, or of notice of, any such petition, assignment for the
benefit of creditors, appointment or application for the appointment of a
receiver, or issuance of execution, subpoena, order or warrant. The Bank agrees
promptly to notify the Borrower after any such set-off and application made by
the Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
10.9. CONSTRUCTION
Each party to a Loan Document represents that it has been
represented by counsel in connection with the Loan Documents and the
transactions contemplated thereby and that the principle that agreements are to
be construed against the party drafting the same shall be inapplicable.
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10.10. GOVERNING LAW
The Loan Documents and the rights and obligations of the parties
thereunder shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of
New York, without regard to principles
of conflict of laws, but including Section 5-1401 of the General Obligations
Law.
10.11. HEADINGS DESCRIPTIVE
Section headings have been inserted in the Loan Documents for
convenience only and shall not be construed to be a part thereof.
10.12. SEVERABILITY
Every provision of the Loan Documents is intended to be severable,
and if any term or provision thereof shall be invalid, illegal or unenforceable
for any reason, the validity, legality and enforceability of the remaining
provisions thereof shall not be affected or impaired thereby.
10.13. INTEGRATION
All exhibits to a Loan Document shall be deemed to be a part
thereof. Except for agreements between the Bank and the Borrower with respect to
certain fees, the Loan Documents embody the entire agreement and understanding
between the Borrower and the Bank with respect to the subject matter thereof and
supersede all prior agreements and understandings between the Borrower and the
Bank with respect to the subject matter thereof.
10.14. CONSENT TO JURISDICTION
The Borrower hereby irrevocably submits to the jurisdiction of any
New York State or Federal court sitting in the City of New York over any suit,
action or proceeding arising out of or relating to the Loan Documents. The
Borrower hereby irrevocably waives, to the fullest extent permitted or not
prohibited by law, any objection which it may now or hereafter have to the
laying of the venue of any such suit, action or proceeding brought in such a
court and any claim that any such suit, action or proceeding brought in such a
court has been brought in an inconvenient forum. The Borrower hereby agrees that
a final judgment in any such suit, action or proceeding brought in such a court,
after all appropriate appeals, shall be conclusive and binding upon it.
10.15. SERVICE OF PROCESS
Each party to a Loan Document hereby irrevocably consents to the
service of process in any suit, action or proceeding by sending the same by
first class mail, return receipt requested or by overnight courier service, to
the address of such party set forth in Section 10.2 or in the applicable Loan
Document executed by such party. Each party to a Loan Document hereby agrees
that any such service (i) shall be deemed in every respect effective service of
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process upon it in any such suit, action, or proceeding, and (ii) shall to the
fullest extent enforceable by law, be taken and held to be valid personal
service upon and personal delivery to it.
10.16. NO LIMITATION ON SERVICE OR SUIT
Nothing in the Loan Documents or any modification, waiver, consent
or amendment thereto shall affect the right of the Bank to serve process in any
manner permitted by law or limit the right of the Bank to bring proceedings
against the Borrower in the courts of any jurisdiction or jurisdictions in which
the Borrower may be served.
10.17. WAIVER OF TRIAL BY JURY
EACH OF THE BANK AND THE BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING OUT OF, UNDER OR IN CONNECTION WITH THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREIN. FURTHER, THE BORROWER HEREBY CERTIFIES THAT
NO REPRESENTATIVE OR AGENT OF THE BANK, OR COUNSEL TO THE BANK, HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT THE BANK WOULD NOT, IN THE EVENT OF SUCH
LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THE
BORROWER ACKNOWLEDGES THAT THE BANK HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, INTER ALIA, THE PROVISIONS OF THIS SECTION.
[THE REMAINDER OF THIS PAGE HAS INTENTIONALLY BEEN LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Credit Agreement to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.
META GROUP, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Chief Financial Officer
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Vice President
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