EXHIBIT 10.1
$10,000,000 USD CREDIT AGREEMENT
Dated as of October 25, 2004
EURONET WORLDWIDE, INC.,
as Borrower Agent and as a Borrower
AND
PAYSPOT, INC.
AND
EURONET USA, INC.
AND
PREPAID CONCEPTS, INC.
AND
CALL PROCESSING, INC.
AND
EACH U.S. SUBSIDIARY WHICH BECOMES A PARTY HERETO,
as Borrowers
AND
BANK OF AMERICA, N.A.,
as Agent and a Lender
AND
THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY
HERETO,
Lenders
$10,000,000 Revolving Line of Credit
Termination Date: October 25, 2006
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS......................................................2
ARTICLE 2 REVOLVING LINE OF CREDIT.........................................2
2.1 Agreement to Lend................................................2
2.2 Revolving Note...................................................2
ARTICLE 3 LETTER OF CREDIT FACILITIES......................................3
3.1 The Letter of Credit Commitment..................................3
3.2 Procedures for Issuance and Amendment of Letters of Credit.......5
3.3 Drawings and Reimbursements; Funding of Participations...........5
3.4 Repayment of Participations......................................7
3.5 Obligations Absolute.............................................7
3.6 Role of L/C Issuer...............................................8
3.7 Cash Collateral..................................................9
3.8 Applicability of ISP.............................................9
3.9 Letter of Credit Fees............................................9
3.10 Conflict with Issuer Documents...................................9
3.11 Letters of Credit Issued for Subsidiaries........................9
3.12 Letter of Credit Amounts........................................10
ARTICLE 4 DISBURSEMENTS; INTEREST; PAYMENTS...............................10
4.1 Types of Loans..................................................10
4.2 Loan Disbursement Procedures....................................10
4.3 Interest........................................................10
4.4 Optional and Mandatory Payments.................................12
4.5 Payments........................................................12
4.6 Direct Debit and Pre-Billing....................................14
4.7 Minimum Amounts.................................................15
4.8 Certain Requests and Notices....................................15
4.9 Borrower Agent..................................................16
ARTICLE 5 FEES; COLLATERAL................................................17
5.1 Fees............................................................17
5.2 Additional LIBOR Rate Loan Costs................................17
5.3 Collateral......................................................18
ARTICLE 6 CONDITIONS TO MAKING LOANS......................................18
6.1 Delivery of Loan Documents......................................18
6.2 Proper Proceedings; Charter Documents...........................19
6.3 Legal Opinion...................................................19
6.4 No Adverse Changes; Representations; No Default.................19
6.5 Notice of Borrowing.............................................19
6.6 Existing Credit Facility........................................19
6.7 No Material Impairment..........................................20
6.8 Required Consents and Approvals.................................20
6.9 Legality........................................................20
6.10 General.........................................................20
6.11 Conditions to Full Availability.................................20
ARTICLE 7 REPRESENTATIONS AND WARRANTIES..................................21
7.1 Corporate Existence and Standing................................21
7.2 Authorization and Validity......................................21
7.3 No Conflict; Governmental Consent...............................21
7.4 Compliance with Laws; Environmental and Safety Matters..........22
7.5 Financial Statements............................................22
7.6 Ownership of Properties; Collateral Liens.......................23
7.7 Indebtedness....................................................23
7.8 Subsidiaries....................................................23
7.9 Litigation......................................................23
7.10 Material Agreements; Labor Matters..............................23
7.11 Investment Company Act; Public Utility Holding Company Act......24
7.12 Taxes...........................................................24
7.13 Accuracy of Information.........................................24
7.14 Employee Benefit Plans..........................................24
7.15 No Undisclosed Dividend Restrictions............................24
7.16 Absence of Default or Event of Default..........................25
7.17 Disclosure......................................................25
7.18 Solvency........................................................25
7.19 Margin Regulations..............................................25
7.20 Copyrights, Patents and Other Rights............................25
7.21 Fiscal Year.....................................................25
ARTICLE 8 AFFIRMATIVE COVENANTS...........................................25
8.1 Conduct of Business and Maintenance of Properties...............25
8.2 Insurance.......................................................26
8.3 Compliance with Laws and Taxes..................................26
8.4 Financial Statements, Reports, etc..............................26
8.5 Other Notices...................................................28
8.6 Access to Properties and Inspections............................28
8.7 Use of Proceeds.................................................28
8.8 Payment of Claims...............................................29
8.9 Maintain Lender Accounts........................................29
8.10 Post Availability Conditions....................................29
ARTICLE 9 FINANCIAL COVENANTS.............................................29
9.1 Consolidated Funded Debt/EBITDA Ratio...........................29
9.2 Consolidated Fixed Charge Coverage Ratio........................29
9.3 Minimum Consolidated EBITDA.....................................29
ARTICLE 10 NEGATIVE COVENANTS..............................................30
10.1 Indebtedness....................................................30
10.2 Liens...........................................................31
10.3 Sale and Lease-Back Transactions................................32
10.4 Mergers, Transfers of Assets, Acquisitions......................33
10.5 Creation of Subsidiaries........................................34
10.6 Subsidiary Dividend Restrictions................................34
10.7 Dividend Restriction............................................34
10.8 Use of Proceeds.................................................34
10.9 Loans, Advances and Investments.................................34
10.10 Negative Pledge.................................................35
10.11 Liquidation or Change in Business...............................35
10.12 Senior Notes....................................................35
ARTICLE 11 EVENTS OF DEFAULT...............................................36
11.1 Events of Default...............................................36
11.2 Rights and Remedies.............................................37
ARTICLE 12 AGENT...........................................................38
12.1 Appointment and Authority.......................................38
12.2 Rights as a Lender..............................................38
12.3 Exculpatory Provisions..........................................38
12.4 Reliance by Agent...............................................39
12.5 Delegation of Duties............................................39
12.6 Resignation of Agent............................................39
12.7 Non-Reliance on Agent and Other Lenders.........................40
12.8 Agent May File Proofs of Claim..................................40
12.9 Collateral and Guaranty Matters.................................41
ARTICLE 13 MISCELLANEOUS...................................................42
13.1 Notices.........................................................42
13.2 Additional Subsidiaries.........................................42
13.3 Survival of Agreement...........................................42
13.4 Binding Effect..................................................43
13.5 Successors and Assigns; Participations..........................43
13.6 Expenses; Indemnity.............................................46
13.7 Right of Setoff.................................................47
13.8 Applicable Law..................................................47
13.9 Waivers; Amendment..............................................47
13.10 Suretyship Waivers..............................................49
13.11 Interest Rate Limitation........................................50
13.12 Entire Agreement................................................50
13.13 Severability....................................................50
13.14 Counterparts....................................................50
13.15 Headings........................................................50
13.16 Jurisdiction; Consent to Service of Process.....................50
13.17 Terms Generally.................................................51
13.18 USA PATRIOT Act Notice..........................................51
13.19 ARBITRATION.....................................................51
List of Exhibits:
Exhibit 1- Definitions
Exhibit 2.2 - Revolving Note
Exhibit 4.8-A- Notice of Borrowing, Prepayment or
Termination of Commitment
Exhibit 4.8-B- Notice of Continuation or Conversion
Exhibit 8.4 - Compliance Certificate
Exhibit 13.2 - Supplement to Credit Agreement
List of Schedules:
Schedule 7.4 - Environmental Matters
Schedule 7.5 - Financial Statements
Schedule 7.8 - Corporate Structure
Schedule 10.1 - Existing Indebtedness
Schedule 10.2 - Existing Liens
Schedule 10.9 - Loans, Advances and Investments
$10,000,000 U.S.
CREDIT AGREEMENT
THIS CREDIT AGREEMENT ("Agreement") is made as of the 25th day of October,
2004, by and among Euronet Worldwide, Inc., a Delaware corporation ("Holding
Company Borrower"), as Borrower Agent and as a Borrower, PaySpot, Inc., a
Delaware corporation, Euronet USA, Inc., an Arkansas corporation, Prepaid
Concepts, Inc., a California corporation, Call Processing, Inc., a Texas
corporation and each other U.S. Subsidiary of any Borrower which becomes a party
to this Agreement pursuant to Section 13.2 hereof (each a "Borrower", and
collectively, the "Borrowers"), and Bank of America, N.A., a national banking
association ("Bank of America"), as agent (in such capacity, the "Agent") and as
a lender (and together with the other financial institutions from time to time
party hereto, as lenders, each a "Lender" and collectively the "Lenders").
WHEREAS, the Borrowers have requested that the Agent arrange a two-year
revolving line of credit with the Lenders in the amount of Ten Million Dollars
($10,000,000); and
WHEREAS, the Borrowers have requested that the Lenders make available, on
the request of any Borrower, letters of credit to be applied against the amount
available under the revolving line of credit; and
WHEREAS, as of the date hereof e-pay Holdings Limited, a limited liability
company incorporated in England and Wales, and Delta Euronet GmbH, a German
company with limited liability, each an indirect subsidiary of the Holding
Company Borrower (collectively the "Euro Borrowers") are entering into a
$30,000,000 Euro/GBP Credit Agreement (the "Euro Credit Agreement") with Bank of
America, as Agent and as a lender thereunder; and
WHEREAS, in order to induce the Agent and the Lenders to make such loans
and issue such letters of credit, certain of the Borrowers have agreed to grant
first priority security interests to the Agent for the benefit of the Lenders in
100% of the equity interests in any and all U.S. Subsidiaries to secure the
obligations of the Borrowers as provided herein; and
WHEREAS, in order to induce the Agent and the Lenders to make such loans
and issue such letters of credit, the Holding Company Borrower has agreed to
grant first priority security interests to the Agent for the benefit of the
Lenders in 65% of the equity interests in EFT Services Holdings B.V. to secure
the obligations of the Borrowers as provided herein; and
WHEREAS, the Lenders have agreed to make such credit and loans available to
the Borrowers upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements contained herein, the parties agree as follows:
ARTICLE 1
DEFINITIONS
Certain terms used in this Agreement are defined herein. Certain other
terms are defined in Exhibit 1 attached hereto and incorporated herein by this
reference.
ARTICLE 2
REVOLVING LINE OF CREDIT
2.1 Agreement to Lend.
(a) Each Lender severally, but not jointly, agrees, on the terms
and subject to the conditions set forth in this Agreement, to make loans (each a
"Revolving Loan") to any Borrower from time to time on any Business Day during
the period beginning on the Closing Date through the first Business Day before
the Revolving Credit Termination Date, in such amounts as each Borrower shall
request as provided in Section 4.8 hereof not to exceed in aggregate principal
amount outstanding at any time, such Lender's Pro Rata Share of the Revolving
Credit Commitment and, to the extent such Lender is an L/C Issuer, to treat each
draw under any Letter of Credit as a Revolving Loan as provided in Section 3.1
below; provided, however, that no Lender shall have any obligation to make a
requested Revolving Loan if, (i) a Default or Event of Default has occurred and
is continuing or (ii) after the making of such Revolving Loan, (a) the aggregate
unpaid principal balance of all Revolving Loans, together with the aggregate
undrawn amount under all outstanding Letters of Credit, would exceed the
Revolving Credit Commitments or (b) a Default or Event of Default will have
occurred and be continuing. Except as otherwise provided in the Fee Letter, the
Borrowers may terminate or reduce the unused portion of the Revolving Credit
Commitment at any time by giving notice to the Lender as provided in Section 4.8
below, provided that any partial reduction shall be in an amount of at least One
Million Dollars ($1,000,000). Revolving Loans shall be used to pay existing
indebtedness to the Bank of America, to redeem the Senior Notes, for working
capital, for Acquisitions and for other corporate or business purposes.
(b) If the aggregate principal indebtedness of the Borrowers
under the Revolving Notes, plus the aggregate undrawn amount under all
outstanding Letters of Credit, at any time exceeds the Revolving Credit
Commitment, the Borrowers shall immediately, without demand or notice, pay
principal under the Revolving Notes so that the aggregate principal amount
outstanding thereunder, plus the aggregate undrawn amount under all outstanding
Letters of Credit, does not exceed the Revolving Credit Commitment; provided,
that in the case of Letters of Credit, such amount shall be held as cash
collateral for undrawn Letters of Credit, and shall promptly be returned to the
appropriate Borrower if Letters of Credit in an amount sufficient to eliminate
such overadvance expire undrawn.
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(c) The Borrowers' obligations under this Agreement, the Revolv-
ing Notes and any other Loan Documents to which any Borrower is a party shall be
joint and several among all of the Borrowers.
2.2 Revolving Note. The Revolving Loans shall be evidenced by and
repaid in accordance with Revolving Notes executed by the Borrowers in favor of
each Lender, in the form of Exhibit 2.2 hereto, dated as of the Closing Date or,
with respect to Revolving Notes issued to a financial institution that becomes a
Lender subsequent to the Closing Date, the date such financial institution
becomes a Lender, and each Revolving Note shall be payable to the order of each
Lender. Such note and any and all amendments, extensions, modifications,
renewals, reaffirmations, restatements, replacements and substitutions thereof
and therefor are herein referred to as the "Revolving Notes". Interest shall
accrue on the unpaid principal balance of the Revolving Notes outstanding from
time to time at a rate or rates determined as provided in Section 4.3 below. The
Revolving Notes shall be paid in full on the Revolving Credit Termination Date.
ARTICLE 3
LETTER OF CREDIT FACILITIES
3.1 The Letter of Credit Commitment. (a) Subject to the terms and condi-
tions set forth herein, (A) the L/C Issuer agrees, in reliance upon the
agreements of the Lenders set forth in this Section 3.1, (1) from time to time
on any Business Day during the period from the Closing Date until the Letter of
Credit Expiration Date, to issue Letters of Credit for the account of the
Borrowers or their Subsidiaries, and to amend or extend Letters of Credit
previously issued by it, in accordance with subsection (b) below, and (2) to
honor drawings under the Letters of Credit; and (B) the Lenders severally agree
to participate in Letters of Credit issued for the account of the Borrower or
its Subsidiaries and any drawings thereunder; provided that after giving effect
to any L/C Credit Extension with respect to any Letter of Credit, (x) the
aggregate unpaid principal balance of all Revolving Loans, together with the
aggregate undrawn amount under all outstanding Letters of Credit, would exceed
the Revolving Credit Commitments, and (y) the aggregate outstanding principal
amount of the Revolving Loans of any Lender, plus such Lender's Pro Rata Share
of the aggregate amount of all L/C Obligations shall not exceed such Lender's
Commitment. Each request by a Borrower for the issuance or amendment of a Letter
of Credit shall be deemed to be a representation by such Borrower that the L/C
Credit Extension so requested complies with the conditions set forth in the
proviso to the preceding sentence. Within the foregoing limits, and subject to
the terms and conditions hereof, the Borrower's ability to obtain Letters of
Credit shall be fully revolving, and accordingly the Borrower may, during the
foregoing period, obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. All Existing Letters
of Credit shall be deemed to have been issued pursuant hereto, and from and
after the Closing Date shall be subject to and governed by the terms and
conditions hereof.
(b) The L/C Issuer shall not issue any Letter of Credit, if:
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(i) the expiry date of such requested Letter of Credit
would occur more than twelve months after the date of issuance or last
extension, except for those Letters of Credit listed on Schedule 3.1
(the aggregate undrawn amount of which shall not exceed $900,000),
unless the Required Lenders have approved such expiry date; or
(ii) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, except for
those Letters of Credit listed on Schedule 3.1 (the aggregate undrawn
amount of which shall not exceed $900,000), unless all the Lenders
have approved such expiry date.
(c) The L/C Issuer shall not be under any obligation to issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the L/C Issuer from issuing such Letter of Credit, or any
applicable law to the L/C Issuer or any request or directive (whether
or not having the force of law) from any Governmental Authority with
jurisdiction over the L/C Issuer shall prohibit, or request that the
L/C Issuer refrain from, the issuance of letters of credit generally
or such Letter of Credit in particular or shall impose upon the L/C
Issuer with respect to such Letter of Credit any restriction, reserve
or capital requirement (for which the L/C Issuer is not otherwise
compensated hereunder) not in effect on the Closing Date, or shall
impose upon the L/C Issuer any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which the L/C Issuer
in good xxxxx xxxxx material to it;
(ii) the issuance of such Letter of Credit would violate
one or more policies of the L/C Issuer;
(iii) except as otherwise agreed by the Agent and the
L/C Issuer, such Letter of Credit is in an initial stated amount less
than $50,000;
(iv) such Letter of Credit is to be denominated in a
currency other than Dollars or Euros;
(v) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder; or
(vi) a default of any Lender's obligations to fund
exists or any Lender is at such time a Defaulting Lender hereunder,
unless the L/C Issuer has entered into satisfactory arrangements with
the Borrower or such Lender to eliminate the L/C Issuer's risk with
respect to such Lender.
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(d) The L/C Issuer shall not amend any Letter of Credit if the
L/C Issuer would not be permitted at such time to issue such Letter of Credit in
its amended form under the terms hereof.
(e) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed amendment
to such Letter of Credit.
(f) The L/C Issuer shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith, and the L/C Issuer shall have all of the benefits and immunities (A)
provided to the Agent in Article 12 with respect to any acts taken or omissions
suffered by the L/C Issuer in connection with Letters of Credit issued by it or
proposed to be issued by it and Issuer Documents pertaining to such Letters of
Credit as fully as if the term "Agent" as used in Article 12 included the L/C
Issuer with respect to such acts or omissions, and (B) as additionally provided
herein with respect to the L/C Issuer.
3.2 Procedures for Issuance and Amendment of Letters of Credit. (a) Each
Letter of Credit shall be issued or amended, as the case may be, upon the
request of a Borrower delivered to the L/C Issuer (with a copy to the Agent) in
the form of a Letter of Credit Application, appropriately completed and signed
by a responsible officer of such Borrower. Such Letter of Credit Application
must be received by the L/C Issuer and the Agent not later than 11:00 a.m,
Kansas City, Missouri time. at least two Business Days (or such later date and
time as the Agent and the L/C Issuer may agree in a particular instance in their
sole discretion) prior to the proposed issuance date or date of amendment, as
the case may be. In the case of a request for an initial issuance of a Letter of
Credit, such Letter of Credit Application shall specify in form and detail
satisfactory to the L/C Issuer: (A) the proposed issuance date of the requested
Letter of Credit (which shall be a Business Day); (B) the amount thereof; (C)
the expiry date thereof; (D) the name and address of the beneficiary thereof;
(E) the documents to be presented by such beneficiary in case of any drawing
thereunder; (F) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (G) such other matters as the
L/C Issuer may require. In the case of a request for an amendment of any
outstanding Letter of Credit, such Letter of Credit Application shall specify in
form and detail satisfactory to the L/C Issuer (A) the Letter of Credit to be
amended; (B) the proposed date of amendment thereof (which shall be a Business
Day); (C) the nature of the proposed amendment; and (D) such other matters as
the L/C Issuer may require. Additionally, the requesting Borrower shall furnish
to the L/C Issuer and the Agent such other documents and information pertaining
to such requested Letter of Credit issuance or amendment, including any Issuer
Documents, as the L/C Issuer or the Agent may require.
(b) Promptly after receipt of any Letter of Credit Application,
the L/C Issuer will confirm with the Agent (by telephone or in writing) that the
Agent has received a copy of such Letter of Credit Application from the
requesting Borrower and, if not, the L/C Issuer will provide the Agent with a
copy thereof. Unless the L/C Issuer has received written notice from any Lender,
the Agent or any Loan Party, at least one
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Business Day prior to the requested date of issuance or amendment of the
applicable Letter of Credit, that one or more applicable conditions contained in
Article 6 shall not then be satisfied, then, subject to the terms and conditions
hereof, the L/C Issuer shall, on the requested date, issue a Letter of Credit
for the account of the requesting Borrower (or the applicable Subsidiary) or
enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the L/C Issuer a risk participation in such Letter of Credit in an amount equal
to the product of such Lender's Pro Rata Share times the amount of such Letter
of Credit.
(c) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the L/C Issuer will also deliver to the requesting
Borrower and the Agent a true and complete copy of such Letter of Credit or
amendment.
3.3 Drawings and Reimbursements; Funding of Participations. (a) Upon
receipt from the beneficiary of any Letter of Credit of any notice of a drawing
under such Letter of Credit, the L/C Issuer shall notify the Borrowers and the
Agent thereof. Not later than 11:00 a.m., Kansas City, Missouri time on the date
of any payment by the L/C Issuer under a Letter of Credit (each such date, an
"Honor Date"), the Borrowers shall reimburse the L/C Issuer through the Agent in
an amount equal to the amount of such drawing. If the Borrowers fail to so
reimburse the L/C Issuer by such time, the Agent shall promptly notify each
Lender of the Honor Date, the amount of the unreimbursed drawing (the
"Unreimbursed Amount"), and the amount of such Lender's Pro Rata Share thereof.
In such event, the Borrowers shall be deemed to have requested a Prime Rate Loan
to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount,
without regard to the minimum and multiples specified in herein for the
principal amount of Prime Rate Loans, but subject to the amount of the
unutilized portion of the aggregate Commitments and the conditions set forth in
Article 6 (other than the delivery of a Loan Request). Any notice given by the
L/C Issuer or the Agent pursuant to this Section 3.3(a) may be given by
telephone if immediately confirmed in writing; provided that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(b) Each Lender shall upon any notice pursuant to Section 3.3(a)
make funds available to the Agent for the account of the L/C Issuer at the
Agent's principal office in an amount equal to its Pro Rata Share of the
Unreimbursed Amount not later than 1:00 p.m., Kansas City, Missouri time on the
Business Day specified in such notice by the Agent, whereupon, subject to the
provisions of Section 3.3(c), each Lender that so makes funds available shall be
deemed to have made a Prime Rate Loan to the Borrower in such amount. The Agent
shall remit the funds so received to the L/C Issuer.
(c) With respect to any Unreimbursed Amount that is not fully
refinanced by a borrowing of Base Rate Loans because the conditions set forth in
Article 6 cannot be satisfied or for any other reason, the Borrowers shall be
deemed to
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have incurred from the L/C Issuer an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due
and payable on demand (together with interest) and shall bear interest at the
Default Rate. In such event, each Lender's payment to the Agent for the account
of the L/C Issuer pursuant to Section 3.3(b) shall be deemed payment in respect
of its participation in such L/C Borrowing and shall constitute an L/C Advance
from such Lender in satisfaction of its participation obligation under this
Section 3.3.
(d) Until each Lender funds its Loan or L/C Advance pursuant to
this Section 3.3 to reimburse the L/C Issuer for any amount drawn under any
Letter of Credit, interest in respect of such Lender's Pro Rata Share of such
amount shall be solely for the account of the L/C Issuer.
(e) Each Lender's obligation to make Loans or L/C Advances to
reimburse the L/C Issuer for amounts drawn under Letters of Credit, as
contemplated by this Section 3.3, shall be absolute and unconditional and shall
not be affected by any circumstance, including (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the L/C
Issuer, the Borrower or any other Person for any reason whatsoever; (ii) the
occurrence or continuance of a Default, or (iii) any other occurrence, event or
condition, whether or not similar to any of the foregoing; provided, however,
that each Lender's obligation to make Loans pursuant to this Section 3.3 is
subject to the conditions set forth in Article 6 (other than delivery by the
Borrower of a Loan Request). No such making of an L/C Advance shall relieve or
otherwise impair the obligation of the Borrowers to reimburse the L/C Issuer for
the amount of any payment made by the L/C Issuer under any Letter of Credit,
together with interest as provided herein.
(f) If any Lender fails to make available to the Agent for the
account of the L/C Issuer any amount required to be paid by such Lender pursuant
to the foregoing provisions of this Section 3.3 by the time specified in Section
3.3(b), the L/C Issuer shall be entitled to recover from such Lender (acting
through the Agent), on demand, such amount with interest thereon for the period
from the date such payment is required to the date on which such payment is
immediately available to the L/C Issuer at a rate per annum equal to the greater
of the Federal Funds Rate and a rate determined by the L/C Issuer in accordance
with banking industry rules on interbank compensation. A certificate of the L/C
Issuer submitted to any Lender (through the Agent) with respect to any amounts
owing under this clause (f) shall be conclusive absent manifest error.
3.4 Repayment of Participations. (a) At any time after the L/C Issuer
has made a payment under any Letter of Credit and has received from any Lender
such Lender's L/C Advance in respect of such payment in accordance with Section
3.3, if the Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from a Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Agent), the Agent will distribute to such Lender its Pro Rata
Share thereof (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's L/C Advance was
outstanding) in the same funds as those received by the Agent.
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(b) If any payment received by the Agent for the account of the
L/C Issuer pursuant to Section 3.3(a) is required to be returned under any
circumstances (including pursuant to any settlement entered into by the L/C
Issuer in its discretion), each Lender shall pay to the Agent for the account of
the L/C Issuer its Pro Rata Share thereof on demand of the Agent, plus interest
thereon from the date of such demand to the date such amount is returned by such
Lender, at a rate per annum equal to the Federal Funds Rate from time to time in
effect. The obligations of the Lenders under this clause shall survive the
payment in full of the Obligations and the termination of this Agreement.
3.5 Obligations Absolute. The obligation of the Borrowers to reimburse
the L/C Issuer for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(a) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(b) the existence of any claim, counterclaim, setoff, defense or
other right that the Borrowers or any Subsidiary may have at any time against
any beneficiary or any transferee of such Letter of Credit (or any Person for
whom any such beneficiary or any such transferee may be acting), the L/C Issuer
or any other Person, whether in connection with this Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or instrument
relating thereto, or any unrelated transaction;
(c) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or inaccurate
in any respect; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter of Credit;
(d) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or
(e) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower or
any Subsidiary.
The requesting Borrower shall promptly examine a copy of each Letter of Credit
and each amendment thereto that is delivered to it and, in the event of any
claim of noncompliance with the requesting Borrower's instructions or other
irregularity, the requesting Borrower will immediately notify the L/C Issuer.
The Borrowers shall be
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conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
3.6 Role of L/C Issuer. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. None of the L/C Issuer,
the Agent, any of their respective Affiliates, directors, officers, employees,
advisers and agents (collectively the "Related Parties") nor any correspondent,
participant or assignee of the L/C Issuer shall be liable to any Lender for (i)
any action taken or omitted in connection herewith at the request or with the
approval of the Lenders or the Required Lenders, as applicable; (ii) any action
taken or omitted in the absence of gross negligence or willful misconduct; or
(iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Issuer Document. The
Borrower hereby assumes all risks of the acts or omissions of any beneficiary or
transferee with respect to its use of any Letter of Credit; provided, however,
that this assumption is not intended to, and shall not, preclude the Borrower's
pursuing such rights and remedies as it may have against the beneficiary or
transferee at law or under any other agreement. None of the L/C Issuer, the
Agent, any of their respective Related Parties nor any correspondent,
participant or assignee of the L/C Issuer shall be liable or responsible for any
of the matters described in clauses (i) through (v) of Section 3.5; provided,
however, that anything in such clauses to the contrary notwithstanding, the
Borrowers may have a claim against the L/C Issuer, and the L/C Issuer may be
liable to the Borrowers, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrowers
which the Borrowers prove were caused by the L/C Issuer's willful misconduct or
gross negligence or the L/C Issuer's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the L/C Issuer
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the L/C Issuer shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
3.7 Cash Collateral. Upon the request of the Agent, (i) if the L/C
Issuer has honored any full or partial drawing request under any Letter of
Credit and such drawing has resulted in an L/C Borrowing, or (ii) if, as of the
Letter of Credit Expiration Date, any L/C Obligation for any reason remains
outstanding, the Borrower shall, in each case, immediately Cash Collateralize
the then aggregate outstanding amount of all L/C Obligations. For purposes of
this Section 3.3, "Cash Collateralize" shall mean to pledge and deposit with or
deliver to the Agent, for the benefit of the L/C Issuer and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances ("Cash
Collateral") pursuant to documentation in form and substance satisfactory to the
Agent and the L/C Issuer (which documents are hereby consented to by the
Lenders).
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Derivatives of such term have corresponding meanings. The Borrowers hereby grant
to the Agent, for the benefit of the L/C Issuer and the Lenders, a security
interest in all such cash, deposit accounts and all balances therein and all
proceeds of the foregoing. Cash Collateral shall be maintained in blocked,
non-interest bearing Cash Collateral Account at Bank of America.
3.8 Applicability of ISP. Unless otherwise expressly agreed by the L/C
Issuer and the requesting Borrower when a Letter of Credit is issued (including
any such agreement applicable to an Existing Letter of Credit), the rules of the
ISP shall apply to each standby Letter of Credit.
3.9 Letter of Credit Fees. The Borrower shall pay to the Agent for the
account of each Lender fees with respect to the Letters of Credit in accordance
with the terms and conditions of the Fee Letter (the "Letter of Credit Fee").
Letter of Credit Fees shall be (i) computed on a quarterly basis in arrears and
(ii) due and payable on the first Business Day after the end of each fiscal
quarter of the Borrower Agent, commencing with the first such date to occur
after the issuance of such Letter of Credit, on the Letter of Credit Expiration
Date and thereafter on demand. Notwithstanding anything to the contrary
contained herein, upon the request of the Required Lenders, while any Event of
Default exists, all Letter of Credit Fees shall accrue at the Default Rate.
3.10 Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
3.11 Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the Borrowers shall be
obligated to reimburse the L/C Issuer hereunder for any and all drawings under
such Letter of Credit. The Borrowers hereby acknowledge that the issuance of
Letters of Credit for the account of Subsidiaries inures to the benefit of the
Borrowers, and that the Borrowers' business derives substantial benefits from
the businesses of such Subsidiaries.
3.12 Letter of Credit Amounts. Unless otherwise specified herein, the
amount of a Letter of Credit at any time shall be deemed to be the stated amount
of such Letter of Credit in effect at such time; provided, however, that with
respect to any Letter of Credit that, by its terms or the terms of any Issuer
Document related thereto, provides for one or more automatic increases in the
stated amount thereof, the amount of such Letter of Credit shall be deemed to be
the maximum stated amount of such Letter of Credit after giving effect to all
such increases, whether or not such maximum stated amount is in effect at such
time.
ARTICLE 4
DISBURSEMENTS; INTEREST; PAYMENTS
4.1 Types of Loans. The Loans made on each Disbursement Date may,
subject to the terms and conditions of this Agreement, be Prime Rate Loans or
LIBOR Rate Loans (each being referred to as a "type" of Loan) as specified in
the applicable Loan Request given by a Borrower or the Borrower Agent on behalf
of a Borrower in accordance with Section 4.8 hereof, and the Borrowers may
convert Loans of one type
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into Loans of the other type or continue Loans of one type as Loans of the same
type, at any time or from time to time by a Loan Request given in accordance
with Section 4.8 hereof, provided that if any LIBOR Rate Loan is converted on
any day other than the last day of the Interest Period for such Loan, the
Borrowers shall pay all applicable fees and amounts described in Section 5.2
below.
4.2 Loan Disbursement Procedures.
(a) Loans shall be disbursed by the Agent upon request by any
Borrower or Borrower Agent on behalf of any Borrower from time to time on or
after the Closing Date, in such amounts as provided in Section 4.7 below or as
provided in Section 3.1 above, subject to the limitations on the Lenders'
obligations to make Loans as set forth in Section 2.1 above. Subject to the
terms of this Agreement, the Borrowers may borrow, repay and re-borrow Revolving
Loans at any time prior to the Revolving Credit Termination Date.
(b) Each Loan Request shall be delivered to the Agent in writing
or by telex or facsimile transmission in the manner provided in Section 13.1
hereof, or as otherwise agreed by the Agent, in the manner and within the time
periods set forth in Section 4.8. The Agent may rely and act upon any such Loan
Request which is received from the Borrower Agent or any other person believed
by the Agent in good faith to be authorized to make such request on behalf of
any Borrower. The Agent shall record in its records all Loans made by the
Lenders to any Borrower pursuant to this Agreement and all payments made on the
Loans.
4.3 Interest.
(a) The Borrowers shall pay to the Agent for the Pro Rata
benefit of the Lenders interest on the unpaid principal amount of each Revolving
Loan at the following rates per annum:
(i) Floating Rate Option. During any period while such
Loan is a Prime Rate Loan, a per annum rate equal to the Prime
Rate (as in effect from time to time) plus one half percent
(0.50%). The rate of interest applicable to Prime Rate Loans
shall change as and when the Prime Rate changes.
(ii) Fixed Rate Option. The Borrowers may elect, in
accordance with Section 4.8 hereof, to have a specified portion
of the Revolving Loan bear interest from time to time at a fixed
rate per annum equal to the LIBOR Rate for the applicable
Interest Period plus the Applicable Margin in effect on the
Disbursement Date, the date of conversion or the date of
continuation, as applicable, as adjusted as provided in this
Agreement.
(iii) Applicable Margin. The "Applicable Margin" will be
three percent (3.0%) for Libor Rate Loans from the date of this
Agreement
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to and including the six month anniversary of the Availability
Date. Thereafter, the "Applicable Margin" will be calculated and
adjusted, as shown below, on the first day of the month following
the receipt by the Agent of each quarterly Compliance
Certificate; any change in the "Applicable Margin" shall be
effective with respect to any Revolving Loans on or after each
such date. The interest rate (other than adjustments to the
Applicable Margin as provided herein) with respect to any LIBOR
Rate Loan shall not change during any Interest Period. On and
after the six month anniversary of the Availability Date, the
"Applicable Margin" will be as follows:
The Applicable
If the Euronet Entities' Consolidated Margin for Libor
Funded Debt / EBITDA Ratio is Rate Loans shall be
greater than 1.50:1.00 3.00%
less than or equal to 1.50:1.00, but 2.75%
greater than 1.25:1.00
less than or equal to 1.25:1.00, but 2.50%
greater than 1.00:1.00
less than or equal to 1.00 to 1.00 2.25%
(b) Notwithstanding the provisions of Section 4.3(a) above, the
Borrowers shall pay interest at the Default Rate on any principal of any Loan
and on any interest or other amount payable by the Borrowers hereunder or under
the Revolving Notes (i) that is not paid in full when due (whether at maturity,
by acceleration or otherwise), for the period commencing on and including the
due date thereof until the same is paid in full and (ii) upon and during the
continuance of any failure to comply with or violation of any of the financial
covenants set forth in Article 9 of this Agreement as shown on and as of the
last day of a fiscal quarter as reflected on any Compliance Certificate.
(c) Accrued interest on each Loan shall be payable (i) in the
case of a Prime Rate Loan, on the last day of each calendar quarter, and (ii) in
the case of a LIBOR Rate Loan, on the last day of each Interest Period therefor;
provided that interest payable at the Default Rate shall be payable, to the
extent applicable, from time to time on demand of the Agent.
(d) The Agent shall, as part of its interest statements, notify
the Borrower Agent of any change in the Prime Rate or the LIBOR Rates in effect
and shall, on the request of the Borrower Agent at any time, notify the Borrower
Agent of the LIBOR Rates then in effect.
(e) In the event that a Borrower or the Borrower Agent on behalf
of the Borrowers fails to select the type of Loan or the duration of any
Interest Period for any LIBOR Rate Loan within the time period and otherwise as
provided in Section 4.8, such Loan (if outstanding as a LIBOR Rate Loan) will be
automatically converted into a Prime Rate Loan on the last day of the then
current Interest Period for such Loan or (if
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outstanding as a Prime Rate Loan) will remain as, or will be made as, a Prime
Rate Loan.
(f) The amount of all interest and fees hereunder shall be
computed for the actual number of days elapsed on the basis of a year consisting
of three hundred sixty (360) days. Interest on any Loan shall be computed for
the period commencing on and including the date of such Loan to but excluding
the date such Loan is paid in full; provided, however, that if a Loan is repaid
on the same day on which it is made, such day shall be included in computing
interest on such Loan.
4.4 Optional and Mandatory Payments. The Borrowers shall have the right
to prepay the Loans in whole or in part at any time without premium or penalty
(except as otherwise provided in the Fee Letter), subject to giving the Agent
prior notice in accordance with the provisions of Section 4.8 hereof, provided
that (i) each such partial prepayment shall be in the aggregate principal amount
of not less than One Hundred Thousand Dollars ($100,000) with respect to Prime
Rate Loan and Five Hundred Thousand Dollars ($500,000) with respect to a LIBOR
Rate Loan, and (ii) if any prepayment of a LIBOR Rate Loan is made on any day
other than the last day of the Interest Period therefor, it may be prepaid only
upon three (3) Business Days prior notice to Agent and the Borrowers shall pay
to the Agent any applicable fees and amounts described in Section 5.2(a) below.
Amounts prepaid in respect of Loans under this Section 4.4 may be re-borrowed
subject to the terms and conditions hereof. The Borrowers shall make mandatory
principal payments on the Loans as provided in Section 2.1(b) and Section 2.2
above.
4.5 Payments. (a) Except as otherwise provided herein and subject to
Section 4.8 below, all payments of principal, interest, Fees, taxes, charges,
expenses and other items payable by the Borrowers hereunder and under the
Revolving Notes shall be made in U.S. dollars and shall be credited on the date
of receipt by the Agent for the Pro Rata benefit of the Lenders if received by
the Agent at its principal office in immediately available funds, prior to 1:00
p.m., (Kansas City, Missouri) time, on a Business Day. Payments made in funds
which are not immediately available shall be credited only when the funds are
collected by the Agent, and payments received (whether from a Borrower in
immediately available funds or through the collection of funds which were not
immediately available at the time payment was tendered by a Borrower) after 1:00
p.m., Kansas City time will be credited on the next Business Day. The Agent
reserves the right to apply all payments received by it from a Borrower and
designated or authorized to be applied to the Revolving Notes first to any Fees
and other charges then due to the Agent or the Lenders, then to accrued interest
on such Revolving Notes for the benefit of the Lenders on a Pro Rata basis and
then to reduction of the principal balance of such Revolving Notes for the
benefit of the Lenders on a Pro Rata basis , or such other order as the Agent
may determine in its sole discretion. The Agent shall also record in its
records, in accordance with customary accounting practice, all interest, Fees,
taxes, charges, expenses and other items properly chargeable to the Borrowers
with respect to the Loans, all payments received by the Agent for application to
the Obligations, and all other appropriate debits and credits. The Agent's
records shall constitute prima facie evidence of the amount of Obligations
outstanding from time to time. All payments
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received by the Agent shall be distributed by Agent in accordance with this
Section 4.5, subject to the rights of offset that Agent may have as to amounts
otherwise to be remitted to a particular Lender by reason of amounts due Agent
from such Lender under any of the Loan Documents.
(b) (i) Each Obligor shall make all payments by it required
hereunder or under any other Loan Document without any Tax Deduction, unless a
Tax Deduction is required by law.
(ii) The Borrower Agent shall promptly, upon any Obligor
becoming aware that an Obligor has had or will have to make a Tax
Deduction (or that there has been or will be a change in the rate
at which or the basis on which any Tax Deduction has to be made),
notify the Agent accordingly. Similarly, a Lender shall notify
the Agent upon becoming so aware in respect of a payment payable
to that Lender. If the Agent receives such a notification from a
Lender it shall notify the Borrower Agent and the applicable
Obligor.
(iii) If a Tax Deduction is required by law to be made
by an Obligor, the amount of the payment in respect of which the
Tax Deduction is required to be made shall be increased to the
amount which (after the Tax Deduction) will leave an amount equal
to the payment which would have been due if no Tax Deduction had
been required. Provided, however, that such Obligor shall not be
required to gross up payments to an Agent or Lenders domiciled or
resident in a country other than the United States.
(c) Status of Lenders. Any Foreign Lender that is entitled to
an exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Borrowers are residents for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments hereunder
or under any other Loan Document shall deliver to the Borrower Agent (with a
copy to the Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower Agent or the Agent, such properly completed
and executed documentation prescribed by applicable law as will permit such
payments to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Borrower Agent or the Agent, shall
deliver such other documentation prescribed by applicable law or reasonably
requested by the Borrower Agent or the Agent as will enable the Borrowers or the
Agent to determine whether or not such Lender is subject to backup withholding
or information reporting requirements.
Without limiting the generality of the foregoing, in the event that the
Borrowers are resident for tax purposes in the United States, any Foreign Lender
shall deliver to the Borrower and the Agent (in such number of copies as shall
be requested by the recipient) on or prior to the date on which such Foreign
Lender becomes a Lender under this Agreement (and from time to time thereafter
upon the request of the Borrower or the
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Agent, but only if such Foreign Lender is legally entitled to do so), whichever
of the following is applicable:
(i) duly completed copies of Internal Revenue Service Form W-8BEN claiming
eligibility for benefits of an income tax treaty to which the United
States is a party,
(ii) duly completed copies of Internal Revenue Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under section 881(c) of the Code, (x)
a certificate to the effect that such Foreign Lender is not (A) a
"bank" within the meaning of section 881(c)(3)(A) of the Code, (B) a
"10 percent shareholder" of the Borrower within the meaning of section
881(c)(3)(B) of the Code, or (C) a "controlled foreign corporation"
described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN, or
(iv) any other form prescribed by applicable law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax
duly completed together with such supplementary documentation as may
be prescribed by applicable law to permit the Borrower Agent to
determine the withholding or deduction required to be made.
4.6 Direct Debit and Pre-Billing.
(a) Each Borrower agrees that Agent will debit deposit account
number 004162550601 or such other of the Borrowers' accounts with the Agent as
designated in writing by a Borrower or the Borrower Agent (the "Designated
Account") on the date each payment of principal, interest and all other
Obligations, including the fees described in Section 5.1 and the fees, amounts
and costs described in Section 5.2, become due (the "Due Date"). If the Due Date
is not a Business Day, the Designated Account will be debited on the next
Business Day.
(b) Approximately ten (10) days prior to each Due Date, with
respect to LIBOR Rate Loans and one (1) day prior to each Due Date, with respect
to Prime Rate Loans, Agent will mail to the Holding Company Borrower at the
notice address set forth in Section 13.1 below a statement of the amounts that
will be due on that Due Date (the "Billed Amount"). The calculation will be made
on the assumption that no new extensions of credit or payments will be made
between the date of the billing statement and the Due Date and that there will
be no changes in the applicable interest rate.
(c) Agent will debit the Designated Account for the Billed
Amount, regardless of the actual amount due on that Due Date (the "Accrued
Amount"). If the Billed Amount debited to the Designated Account differs from
the Accrued Amount, the discrepancy will be treated as follows:
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(i) If the Billed Amount is less than the Accrued
Amount, the Billed Amount for the following Due Date will be
increased by the amount of the discrepancy. The Borrowers will
not be in default and an Event of Default will not occur by
reason of any such discrepancy.
(ii) If the Billed Amount is more than the Accrued
Amount, the Billed Amount for the following Due Date will be
decreased by the amount of the discrepancy.
Regardless of any such discrepancy, interest will continue to accrue based
on the actual amount of principal outstanding without compounding. Agent will
not pay the Borrowers interest on any overpayment.
(d) The Borrowers will maintain sufficient funds in the Desig-
nated Account to cover each debit. If there are insufficient funds in the
Designated Account on the date Agent enters any debit authorized by this
Agreement, the debit will be reversed.
4.7 Minimum Amounts. Each borrowing or conversion into any Prime Rate
Loan shall be in an amount of at least One Hundred Thousand Dollars ($100,000)
or a multiple of One Hundred Thousand Dollars ($100,000) in excess thereof, and
each borrowing, conversion or continuation of a LIBOR Rate Loan shall be in an
amount of at least Five Hundred Thousand Dollars ($500,000) or a multiple of One
Hundred Thousand Dollars ($100,000) in excess thereof.
4.8 Certain Requests and Notices. (a) The Borrowers or the Borrower
Agent on behalf of the Borrowers will request borrowings and give notice to the
Agent of all terminations or reductions of the Commitment or conversions,
continuations and prepayments of Loans and duration of Interest Periods
substantially in the form of Exhibits 4.8-A and 4.8-B hereto, as applicable
(each a "Loan Request"). Each such notice shall be irrevocable and shall be
effective only if received by the Agent not later than 11:00 a.m. Kansas City
time (i) on the Business Day prior to the effective date of the requested
termination or reduction of the Commitment, (ii) on the same day if it is a
notice of a borrowing or prepayment of a Prime Rate Loan (except that if such
date is not a Business Day, then on the next Business Day), or (ii) three (3)
Business Days prior to the requested effective date for a borrowing or
prepayment of, conversion into or continuation of a LIBOR Rate Loan or any
selection of an Interest Period for a LIBOR Rate Loan. Any such Loan Request for
a borrowing of, conversion into or continuation of a LIBOR Rate Loan shall
specify, (i) the amount of principal which shall comprise the LIBOR Rate Loan,
(ii) the date on which the rate is to become effective, and (iii) the Interest
Period for such LIBOR Rate Loan. For purposes of calculating the number of
Business Days, the date the notice is received shall be included if received not
later than 11:00 a.m. Kansas City time and excluded if received after 11:00 a.m.
Kansas City time.
(b) Fundings by Lenders. Subject to its receipt of notice from
Agent of a Loan Request for a borrowing as provided in Section 4.8(a) (except in
the case of a deemed request by a Borrower for a Revolving Loan as provided
herein, in which event
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no Notice of Borrowing need be submitted), each Lender shall timely honor its
Revolving Credit Commitment by funding its Pro Rata share of each Revolver Loan
that is properly requested by such Borrower or the Borrowing Agent on behalf of
such Borrower and that such Borrower is entitled to receive under this
Agreement. Agent shall endeavor to notify Lenders of each Loan Request (or
deemed request for a Borrowing), by 1:00 p.m. Kansas City time on the proposed
funding date (in the case of Prime Rate Loans) or by 3:00 p.m. Kansas City time
at least 2 Business Days before the proposed funding date (in the case of LIBOR
Rate Loans). Each Lender shall deposit with Agent an amount equal to its Pro
Rata share of the Revolving Loan requested or deemed requested by such Borrower
at Agent's designated bank in immediately available funds not later than 2:00
p.m. Kansas City time on the date of funding of such Revolving Loan, unless
Agent's notice to the Lenders is received after 1:00 p.m. Kansas City time on
the proposed funding date of a Prime Rate Loan, in which event the Lenders shall
deposit with Agent their respective Pro Rata shares of the requested Revolving
Loan on or before 11:00 a.m. Kansas City time on the next Business Day. Subject
to its receipt of such amounts from the Lenders, Agent shall make the proceeds
of the Revolving Loans received by it available to a Borrower by disbursing such
proceeds in accordance with such Borrower's disbursement instructions set forth
in the applicable Loan Request. Neither Agent nor any Lender shall have any
liability on account of any delay by any bank or other depository institution in
treating the proceeds of any Revolving Loan as collected funds or any delay in
receipt, or any loss, of funds that constitute a Revolving Loan, the wire
transfer of which was initiated by Agent in accordance with wiring instructions
provided to Agent. Unless Agent shall have been notified in writing by a Lender
prior to the proposed time of funding that such Lender does not intend to
deposit with Agent an amount equal such Lender's Pro Rata share of the requested
Revolving Loan (or deemed request), Agent may assume that such Lender has
deposited or promptly will deposit its share with Agent and Agent may in its
discretion disburse a corresponding amount to the Borrower on the applicable
funding date. If a Lender's Pro Rata share of such Revolving Loan is not in fact
deposited with Agent, then, if Agent has disbursed to a Borrower an amount
corresponding to such share, then such Lender agrees to pay, and in addition the
Borrowers agree to repay, to Agent forthwith on demand such corresponding
amount, together with interest thereon, for each day from the date such amount
is disbursed by Agent to or for the benefit of the Borrowers until the date such
amount is paid or repaid to Agent, (a) in the case of the Borrowers, at the
interest rate applicable to such Revolving Loan and (b) in the case of such
Lender, at the Federal Funds Rate. If such Lender repays to Agent such
corresponding amount, such amount so repaid shall constitute a Revolving Loan,
and if both such Lender and the Borrowers shall have repaid such corresponding
amount, Agent shall promptly return to the Borrowers such corresponding amount
in same day funds. A notice from Agent submitted to any Lender with respect to
amounts owing under this Section 4.8(b) shall be conclusive, absent manifest
error.
4.9 Borrower Agent. Each Borrower hereby irrevocably appoints The
Holding Company Borrower and The Holding Company Borrower agrees to act under
this Agreement, as the agent and representative of itself and each other
Borrower for all purposes under this Agreement (in such capacity, "Borrower
Agent"), including
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requesting Revolving Loans, selecting whether any Loan or portion thereof is to
bear interest as a Prime Rate Loan or a LIBOR Rate Loan, and receiving account
statements and other notices and communications to Borrowers (or any of them)
from Agent. Agent may rely, and shall be fully protected in relying, on any Loan
Request, disbursement instructions, reports, information, or any other notice or
communication made or given by Borrower Agent, either in its own name, on behalf
of a Borrower or on behalf of "the Borrowers," and Agent shall have no
obligation to make any inquiry or request any confirmation from or on behalf of
any other Borrower as to the binding effect on such Borrower of any such Loan
Request, instruction, report, information, or other notice or communication, nor
shall the joint and several character of Borrowers' liability for the
Obligations be affected, provided that the provisions of this Section 4.10 shall
not be construed so as to preclude either a Borrower from directly requesting
Borrowings or taking other actions permitted to be taken by "a Borrower"
hereunder. Agent may maintain a single loan account in the name of "Euronet
Worldwide, Inc." hereunder, and each Borrower expressly agrees to such
arrangement and confirms that such arrangement shall have no effect on the joint
and several character of such Borrower's liability for the Obligations.
ARTICLE 5
FEES; COLLATERAL
5.1 Fees. The Borrower Agent shall pay to Agent the fees set forth in
the Fee Letter executed by Agent and the Borrower Agent concurrently herewith.
5.2 Additional LIBOR Rate Loan Costs.
(a) The Borrowers shall pay to the Agent for the benefit of the
Lenders from time to time, upon request of the Agent, (i) such amounts as the
Agent may determine to be necessary to compensate it for any Additional LIBOR
Rate Loan Costs respecting Regulatory Changes and (ii) an administrative fee of
Three Hundred Dollars ($300) plus such amounts as the Agent may determine to be
necessary to compensate the Lenders for any loss, cost or expense which the
Lenders incur (including, without limitation, any loss, cost or expense incurred
by reason of the liquidation or re-employment of deposits, but excluding loss of
anticipated profits) that is attributable to (A) any payment, prepayment or
conversion of a LIBOR Rate Loan made by a Borrower for any reason on a date
other than the last day of an Interest Period for such Loan or (B) any failure
by a Borrower for any reason (including, without limitation, the failure of any
condition specified in Article 6 hereof to be satisfied) to borrow, continue or
convert a LIBOR Rate Loan on the date therefor specified in the request for
borrowing or notice given pursuant to Section 4.8 hereof. Such compensation may
include an amount equal to the excess, if any, of (i) the amount of interest
which would have accrued on the amount so prepaid, or not so borrowed, converted
or continued, for the period from the date of such prepayment or of such failure
to borrow, convert or continue to the last day of the applicable Interest Period
(or, in the case of a failure to borrow, convert or continue, the Interest
Period that would have commenced on the date of such failure) in each case at
the applicable rate of interest for such Loans provided for herein (excluding,
however, the Applicable Margin included therein, if any) over (ii) the
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amount of interest (as reasonably determined by the Agent) which would have
accrued to the Lenders on such amount by placing such amount on deposit for a
comparable period with leading banks in the interbank Eurodollar market. The
covenants of the Borrowers set forth in this Section 5.2 shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder. The Agent will notify the Borrower Agent of any event which
will entitle the Agent or the Lenders to compensation pursuant to this Section
5.2 as promptly as practicable after the Agent determines to require such
compensation and will furnish the Borrower Agent with a certificate setting
forth in reasonable detail the basis and amount of such compensation.
(b) Determinations by the Agent of the effect of any Regulatory
Change (i) on its rate of return, (ii) on its cost of maintaining the LIBOR Rate
Loans, (iii) on its obligation to make LIBOR Rate Loans or (iv) on amounts
receivable by it in respect of the LIBOR Rate Loans and determinations of the
amounts required to compensate the Agent or the Lenders under this Section 5.2
shall be conclusive, provided that such determinations are made on a reasonable
basis and are set forth in reasonable detail in the certificates referred to in
Section 5.2(a) above.
(c) Anything herein to the contrary notwithstanding, if it
becomes unlawful for the Agent or any Lender to honor its obligation to make or
maintain LIBOR Rate Loans hereunder or if, on or prior to the determination of
any LIBOR Rate for any Interest Period, the Agent determines (which
determination shall be conclusive) that quotations of interest rates for the
relevant deposits referred to in the definition of "LIBOR Rate" in Exhibit 1
hereto are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for LIBOR Rate Loans,
then the Agent shall give the Borrower Agent prompt notice thereof, and, so long
as such condition remains in effect, the Agent and the Lenders shall be under no
obligation to make additional LIBOR Rate Loans, to continue LIBOR Rate Loans or
to convert Prime Rate Loans into LIBOR Rate Loans, and the Borrowers shall, on
the last day(s) of the then current Interest Period(s) for the outstanding LIBOR
Rate Loans, either prepay such Loans or convert such Loans into Prime Rate
Loans.
5.3 Collateral. The Revolving Notes and all other Obligations will be
secured as provided in the Pledge Agreements. All assets of each Borrower will
be subject to the negative pledge set forth in Section 10.10 below.
ARTICLE 6
CONDITIONS TO MAKING LOANS
The Lenders' obligation hereunder to make the Loans, extend credit and
enter into transactions referred to in Article 3 shall be subject to the
satisfaction of the following conditions and, in the case of the conditions set
forth in Sections 6.4, 6.5, 6.7, 6.8 and 6.9, as of each Disbursement Date and
each date a Letter of Credit is issued, renewed or extended. On the Closing Date
the Borrowers shall have satisfied the conditions set forth in Section 6.1
through 6.10 and the Lenders' obligation hereunder to make the Loans, extend
credit and enter into transactions referred to in Article 3 on the Closing Date
until the Availability Date shall be limited to making Loans in the amount
necessary to pay the
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principal amount of any "Loans" outstanding under the Original Credit Agreement
on the Closing Date and extending credit with respect to any undrawn amount of
any "Letter of Credit" outstanding under the Original Credit Agreement on the
Closing Date and the Borrowers shall use the proceeds of such Loans for the sole
purpose pay such "Loans" and extend such credit. On the date upon which the
conditions set forth in Section 6.11 are additionally satisfied (the
"Availability Date") the Borrowers shall be entitled to full availability of the
Loans and extensions of credit as provided hereunder, subject to the terms and
conditions hereof.
6.1 Delivery of Loan Documents. Each Borrower shall have executed and
delivered to the Agent, as applicable, this Agreement, the Notes, the Fee
Letter, the Pledge Agreements to which any Borrower is a party (other than the
Pledge Agreement to be provided pursuant to Section 6.11(a)), all of which shall
be in form and substance satisfactory to the Agent and its counsel. In
connection with each Pledge Agreement the Agent shall additionally receive stock
or share certificates in respect of all issued shares pledged pursuant to such
Pledge Agreements, undated stock powers executed in blank or other stock
transfer forms in form and substance satisfactory to the Agent, and a certified
copy of the register of members or directors of each Person the shares of whom
are being pledged pursuant to the Pledge Agreements. The Euro Borrowers shall
have executed and delivered to Bank of America the Euro Credit Agreement and
have satisfied any other conditions required to be satisfied on the "Closing
Date" pursuant to the Euro Credit Agreement.
6.2 Proper Proceedings; Charter Documents. Each Borrower shall have taken
all corporate proceedings necessary to authorize the Loan Documents and the
transactions contemplated hereby. Each Borrower shall have delivered to the
Agent certificates, dated the Closing Date and signed by their respective
Secretaries, satisfactory to the Agent, respecting such proceedings and the
incumbency of the officers executing the Loan Documents. Each Borrower shall
have delivered to the Agent copies of its charter documents, including all
amendments thereto, certified by the appropriate officer, and copies of its
bylaws, including all amendments thereto, certified by the appropriate officer.
6.3 Legal Opinion. The Agent shall have received opinions from counsel to
each Borrower, dated as of the Closing Date, in form and substance satisfactory
to the Agent and its counsel.
6.4 No Adverse Changes; Representations; No Default. Since the date hereof,
there shall have been no material adverse change in the business, operations,
financial condition or prospects of the Borrowers taken as a whole or the
Euronet Entities taken as a whole. The representations and warranties contained
in Article 7 hereof with respect to the Borrowers (including entities becoming a
Borrower pursuant to Section 13.2) shall be true and correct as though made on
and as of the Closing Date or such Disbursement Date or such date of issuance,
renewal or extension of a Letter of Credit, as the case may be, except that the
representations and warranties set forth in the first sentence of Section
7.4(b), Section 7.7 and Section 7.8 (which relate to disclosure Schedules 7.4,
10.1 and 7.8) are not required by this Section 6.4 to be made as of any
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Disbursement Date or date of issuance, renewal or extension of a Letter of
Credit. No Default or Event of Default shall have occurred and be continuing.
The Agent shall have received certifications of the Holding Company Borrower in
form satisfactory to the Agent and dated the Closing Date or the date of the
request for borrowing or for issuing, renewing or extending a Letter of Credit,
as applicable, certifying as to each matter set forth in this Section 6.4, which
certifications may be included in the Loan Request described in Section 4.8
hereof.
6.5 Notice of Borrowing. Agent shall have received the Loan Request
described in Section 4.8 hereof.
6.6 Existing Credit Facility. After giving effect to the initial borrowing
on the Closing Date, all "Obligations" of the Borrowers pursuant that certain
Credit Agreement, dated as of February 23, 2004 (the "Original Credit
Agreement") among the Borrowers and Bank of America and the "Loan Agreements"
(as defined therein) shall be satisfied in full and the Existing Credit
Agreement will be terminated. "Obligations" that constitute the principal amount
of any "Loans" outstanding under the Original Credit Agreement on the Closing
Date and extensions of credit with respect to any undrawn amount of any "Letter
of Credit" outstanding under the Original Credit Agreement on the Closing Date
may be satisfied with the proceeds of Loans hereunder. Any other Obligations,
including any obligations to pay outstanding interest and fees under the
Original Credit Agreement, shall be paid with monies from other sources as may
be available to the Borrowers.
6.7 No Material Impairment. The Agent shall have determined that the
prospect of payment of the Loans has not been materially impaired. 6.8 Required
Consents and Approvals. All consents, approvals and authorizations of any
Governmental Authority or any other Person necessary in connection with the
execution and performance of the Loan Documents, the consummation of the
transactions contemplated hereby or the making of the Loans hereunder shall have
been obtained and shall be in full force and effect.
6.9 Legality. The making of any Loan shall not subject the Agent or any
Lender to any penalty or special tax, shall not be prohibited by any law or
governmental order or regulations applicable to the Agent, any Lender or to
Borrower and shall not violate any voluntary credit restraint program of the
executive branch of the government of the United States or any other
Governmental Authority, and all necessary consents, approvals and authorizations
of any Governmental Authority to or of such Loan shall have been obtained.
6.10 General. All instruments and legal and corporate proceedings in
connection with the transactions contemplated by this Agreement shall be
satisfactory in form and substance to the Agent and its counsel, and the Agent
shall have received copies of all other documents, including records of
corporate proceedings and opinions of counsel, which the Agent may have
requested in connection therewith, such documents
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where appropriate to be certified by proper corporate or governmental
authorities, and such other conditions shall have been fulfilled as may have
been requested by the Agent.
6.11 Conditions to Full Availability.
(a) Pledge Agreements. The Agent shall have received the pledge agree-
ment, share charge or similar agreement by which the Holding Company Borrower
pledges 65% of its interest in EFT Services Holdings B.V.. In connection with
such Pledge Agreement the Agent shall additionally receive stock or share
certificates in respect of all issued shares pledged pursuant to such Pledge
Agreement, undated stock powers executed in blank or other stock transfer forms
in form and substance satisfactory to the Agent, and a certified copy of the
register of members or directors of each Person the shares of whom are being
pledged pursuant to the Pledge Agreement.
(b) Proper Proceedings; Charter Documents. Each Obligor party to a
Pledge Agreement delivered pursuant to Section 6.11(a) shall have taken all
corporate proceedings necessary to authorize the Pledge Agreements. Each of such
Obligors shall have delivered to the Agent certificates, dated the Availability
Date and signed by their respective Secretaries, satisfactory to the Agent,
respecting such proceedings and the incumbency of the officers executing the
Pledge Agreements. Each of such Obligors shall have delivered to the Agent
copies of its charter documents, including all amendments thereto, certified by
the appropriate officer, and copies of its bylaws or similar documents,
including all amendments thereto, certified by the appropriate officer.
(c) Legal Opinion. The Agent shall have received opinions from counsel
to each of such Obligors, dated as of the Availability Date, in form and
substance satisfactory to the Agent and its counsel.
(d) Bring Down Conditions. The conditions set forth in Sections 6.4,
6.7, 6.8 and 6.9 shall be satisfied as of the Availability Date.
(e) Euro Credit Agreement. The conditions set forth in Section 6.11
(other than Section 6.11(f)) of the Euro Credit Agreement shall be satisfied.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Each Borrower (except as specifically set forth herein) represents and
warrants to the Agent and the Lenders that:
7.1 Corporate Existence and Standing. Each Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to own its
property and to carry on its business in each jurisdiction where the failure to
so qualify would have a material adverse effect on its business, properties,
assets, operations or condition (financial or otherwise). Holding Company
Borrower represents and warrants to the Agent and the Lenders that
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each Euronet Entity is an entity duly created, validly existing and in good
standing under the laws of its jurisdiction of organization and has all
requisite authority to own its property and to carry on its business in each
jurisdiction where the failure to so qualify would have a material adverse
effect on its business, properties, assets, operations or condition (financial
or otherwise).
7.2 Authorization and Validity. Each Borrower has the corporate power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. Such execution and
delivery have been duly authorized by proper proceedings, and the Loan Documents
constitute the legal, valid and binding obligations of each Borrower,
enforceable against each of them in accordance with their respective terms,
except as such enforceability may be limited by (i) bankruptcy, insolvency,
reorganization, receivership, liquidation, moratorium, and other similar laws
affecting the rights and remedies of creditors generally and (ii) by general
principles of equity (regardless of whether such enforcement is considered in
equity or at law).
7.3 No Conflict; Governmental Consent. The execution, delivery and
performance of the Loan Documents will not violate any law, rule, regulation,
order, writ, judgment, injunction, decree or award binding on any Borrower, any
provision of each Borrower's respective articles or certificate of
incorporation, by-laws or other charter documents, or the provisions of any
indenture, instrument or other written or oral agreement to which any Borrower
is a party or is subject or by which any Borrower or any of its property is
bound, or conflict therewith or constitute a default thereunder, or result in
the creation or imposition of any Lien in, of or on any of its property pursuant
to the terms of any such indenture, instrument or agreement. No order, consent,
approval, license, authorization or validation of, or filing, recording or
registration with, or exemption by, any Governmental Authority is required by or
in respect of the Borrowers to authorize or is required in connection with the
execution, delivery and performance of or the enforceability of any of the Loan
Documents.
7.4 Compliance with Laws; Environmental and Safety Matters.
(a) Each Borrower, and Holding Company Borrower represents and
warrants to the Agent and the Lenders that each Euronet Entity, has complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or Governmental Authority having jurisdiction
over the conduct of its businesses or the ownership of its respective properties
except to the extent that such non-compliance will not have a material adverse
effect on the financial condition or business operations of the Borrowers, on a
consolidated basis or on the Euronet Entities on a consolidated basis.
(b) Each Borrower has, except as disclosed in Schedule 7.4 hereto
and to each Borrower's actual knowledge, complied with all federal, national,
state, local and other statutes, ordinances, orders, judgments, rulings and
regulations relating to environmental pollution, environmental regulation or
control, or employee health or safety, except to the extent that such
non-compliance will not have a material adverse
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effect on the financial condition or business operations of the Borrowers on a
consolidated basis; no Borrower has received any written notice of any failure
so to comply except as disclosed in Schedule 7.4 hereto; and no Borrower's
facilities treat, store or dispose of any hazardous wastes, hazardous
substances, hazardous materials, toxic substances, toxic pollutants or
substances ("Hazardous Materials") similarly denominated, as those terms or
similar terms are used in RCRA, CERCLA, the Hazardous Materials Transportation
Act, the Toxic Substances Control Act, the Clean Air Act, the Clean Water Act,
the Occupational Safety and Health Act or any other state, local or federal
applicable law, ordinance, rule or regulation relating to environmental
pollution, environmental regulation or control or employee health and safety
("Environmental Laws") in a quantity or manner that requires a permit,
registration, or another notification or authorization from a Governmental
Authority except for the treatment, storage, or disposal of Hazardous Materials
in a quantity or manner which, if in non-compliance with Environmental Laws,
would not have a material adverse effect on the Borrowers' financial condition
or business operations, taken as a whole, except as disclosed in Schedule 7.4
hereto. The conduct of the business and the condition of the property of each
Borrower do not violate any Environmental Laws or any judicial interpretation
thereof relating primarily to the environment or Hazardous Materials. No
Borrower is aware of any events, conditions or circumstances involving
environmental pollution or contamination or employee health or safety that could
reasonably be expected to result in material liability on the part of the
Borrowers taken as a whole. Holding Company Borrower, with respect to each
Euronet Entity, makes the same representations and warranties made by each
Borrower herein.
7.5 Financial Statements. The Borrowers have heretofore furnished to the
Agent (a) (i) an audited consolidated balance sheet and related consolidated
statements of earnings and cash flows for all of the Euronet Entities as a
group, and (ii) as shown on Schedule 7.5, (A) an unaudited combining balance
sheet and related combining statements of earnings and cash flows for the U.S.
Subsidiary Borrowers as a group and (B) a balance sheet and statement of
earnings and cash flows for Holding Company Borrower, each as of and for the
fiscal year ended December 31, 2003, and (b) (i) an unaudited consolidated
balance sheet and unaudited statements of earnings and cash flows for all of the
Euronet Entities as a group, and (ii) as shown on Schedule 7.5, (A) an unaudited
combining balance sheet and unaudited statements of earnings and cash flows for
the U.S. Subsidiary Borrowers, and (B) an unaudited individual balance sheet and
unaudited statement of earnings and cash flows for Holding Company Borrower,
each as of and for the quarter ended June 30, 2004. Such financial statements
fairly state the financial condition and results of operations of the applicable
Person or Persons as of such dates and for such periods. No applicable Euronet
Entity had on said date any material (on a consolidated basis) contingent
liabilities, material (on a consolidated basis) liabilities for taxes, unusual
forward or long-term commitments or unrealized or anticipated losses from any
unfavorable commitments, except as referred to or reflected or provided for in
said balance sheet or the notes thereto as at said date or otherwise disclosed
as required under the rules and regulations of the SEC. If any such matters are
not included in the financial statements of the Borrowers, but are otherwise
disclosed in a Borrower's SEC filings, then the Borrowers will provide a copy of
such filings to the
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Agent and identify the relevant disclosure. Such financial statements were
prepared in accordance with GAAP applied on a consistent basis. Since June 30,
2004, no material adverse change has occurred in the business, properties,
financial condition, prospects or results of operations of the Borrowers (on a
consolidated basis) or the Euronet Entities (on a consolidated basis).
7.6 Ownership of Properties; Collateral Liens. Each Borrower has good
title, free and clear of all Liens (other than those permitted by Section 10.2
hereof), to all of the properties and assets reflected in its financial
statements as owned by it, and its interest in all other properties and assets
in or to which it has an interest as a lessee, licensee or otherwise is free and
clear of all Liens (other than those permitted under Section 10.2 hereof).
7.7 Indebtedness. Except as disclosed on Schedule 10.1, no Borrower has any
Indebtedness for money borrowed or any direct or indirect obligations under any
leases or any agreements of guaranty or security except for the endorsement of
negotiable instruments in the ordinary course of business for deposit or
collection. The Indebtedness disclosed on Schedule 10.1 is not superior in any
right of payment or otherwise to any Indebtedness owing to the Agent of the
Lenders.
7.8 Subsidiaries. The Euronet Entities' corporate structure is as set forth
on Schedule 7.8. Except as described in Schedule 7.8, all of the issued and
outstanding shares of capital stock or other ownership interests of each Euronet
Entity has been duly authorized and issued and are fully paid and
non-assessable, free and clear of all liens, restrictions and rights.
7.9 Litigation. Monetary loss arising from any litigation, arbitration,
mediation, governmental investigations, proceedings or inquiries before any
Governmental Authority, arbitrator or mediator that are pending or, to the
knowledge of any of any Borrower's officers, threatened against or affecting any
Borrower (other than those covered by insurance, but only to the extent so
covered) is not reasonably expected to exceed, in the aggregate, One Million
Dollars ($1,000,000).
7.10 Material Agreements; Labor Matters. Any agreement or instrument of any
Borrower that has or is likely to have a material effect on the assets,
prospects, business, operations, financial condition, liabilities or
capitalization of any Borrower as a separate company or of the Borrowers on a
consolidated basis is referred to in this Section 7.10 as a "Material Contract."
No Borrower is in default under any Material Contract in any manner that could
materially and adversely affect its assets, prospects, business, operations,
financial condition, liabilities or capitalization of the Borrowers taken as a
whole or in any manner that could jeopardize the Borrowers' right to require the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any Material Contract. There are no strikes or walkouts
relating to any labor contracts (other than individual employment agreements)
with any Borrower pending or threatened, and no labor contracts (other than
individual employment agreements) are scheduled to expire during the term of
this Agreement, and the Borrowers have no knowledge of, or reason to know of (in
each case after a reasonable
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investigation), any efforts that are being made by any employees to form a union
or collectively bargain with any Borrower.
7.11 Investment Company Act; Public Utility Holding Company Act. No
Borrower is an "investment company" or a company "controlled" by an "investment
company," within the meaning of the Investment Company Act of 1940, as amended,
or a "holding company," a "subsidiary company" of a "holding company" or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
as amended.
7.12 Taxes. Each Borrower has, and Holding Company Borrower represents and
warrants that each Euronet Entity has, filed all United States federal tax
returns and all other tax returns which, to each Borrower's actual knowledge,
are required to be filed and paid all taxes due pursuant to said returns or
pursuant to any assessment received by it, including without limitation all
federal and state withholding taxes and all taxes required to be paid pursuant
to applicable law, except such taxes, if any, as are being contested in good
faith, by appropriate proceedings and as to which adequate charges, accruals and
reserves have been set aside. No tax Liens have been filed, and no claims are
being asserted with respect to any such taxes, except such tax Liens and claims
that will not have a material adverse effect in the aggregate, on the assets,
business, operations or financial condition of the Borrowers, on a consolidated
basis or on the Euronet entities on a consolidated basis. The charges, accruals
and reserves on the books of each Borrower, on a consolidating and consolidated
basis, and of the Euronet Entities, on a consolidated basis, in respect of any
taxes or other governmental charges are adequate.
7.13 Accuracy of Information. No information, exhibit or report furnished
by any Borrower to the Agent or any Lender in connection with the negotiation of
the Loan Documents contained any material misstatement of fact or omitted to
state a material fact or any fact necessary to make the statements contained
therein not misleading.
7.14 Employee Benefit Plans. No Borrower maintains, sponsors or contributes
to any Defined Benefit Pension Plan.
7.15 No Undisclosed Dividend Restrictions. Except for limitations on the
payment of dividends under applicable corporate statutes, no Borrower is subject
to any agreement, covenant or understanding that limits or restricts its ability
to declare or pay dividends, except Holding Company Borrower, which is
restricted from declaring or paying dividends, other than in shares, under its
Bond Indenture dated as of June 22, 1998, 12 3/8% Senior Discount Notes due
July, 2006 (the "Senior Notes").
7.16 Absence of Default or Event of Default. No Default and no Event of
Default has occurred and is continuing.
7.17 Disclosure. The pro forma financial information contained in financial
statements delivered to the Agent and any Lender, is, and will be, based upon
good faith estimates and assumptions believed by each Borrower to be reasonable
at the time made.
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There is no fact known to any Borrower (other than matters of a general economic
nature) that has had or could reasonably be expected to have a material adverse
effect and that has not been disclosed herein or in such other documents,
certificates and statements furnished to the Agent or the Lenders for use in
connection with the transactions contemplated by this Agreement.
7.18 Solvency. Based upon its financial and accounting records, each
Borrower, individually, and the Borrowers on a consolidated basis, has assets of
a value that exceeds the amount of its liabilities (excluding, for purposes of
this representation, all intercompany loans from liabilities). Each Borrower
reasonably anticipates that it will be able to meet their respective debts as
they mature. Each Borrower has adequate capital to conduct the business in which
it is engaged.
7.19 Margin Regulations. Neither the making of the Loans hereunder, nor the
use of the proceeds thereof, will violate or be inconsistent with the provisions
of Regulation T, U or X. No part of the proceeds of any Loan will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, to purchase or to extend credit to others for the purpose of
purchasing or carrying Margin Stock (as defined in said Regulation U).
7.20 Copyrights, Patents and Other Rights. Each Borrower possesses all
licenses, patents, patent rights and patent licenses, trademarks, trademark
rights and licenses, trade names, copyrights and all other intellectual property
rights which are required or desirable to conduct its business as presently
conducted; to the best of its knowledge, such rights do not infringe on or
conflict with the rights of any other Person; and each Borrower has, and is
current and in good standing with respect to, all governmental approvals,
permits and certificates required to conduct its businesses as heretofore
conducted.
7.21 Fiscal Year. Each Euronet Entity has a fiscal year which ends on
December 31.
ARTICLE 8
AFFIRMATIVE COVENANTS
Unless the Agent and the Required Lenders shall otherwise consent in
writing, each Borrower agrees that it will:
8.1 Conduct of Business and Maintenance of Properties. Carry on and conduct
its business in substantially the same manner and in substantially the same
fields of enterprise as it is presently conducted and do all things necessary to
remain duly incorporated, validly existing and in good standing in its
jurisdiction of organization and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted; maintain,
preserve, protect and keep its properties in good repair, working order and
condition; and comply in all material respects with all agreements and
instruments to which it is a party.
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8.2 Insurance. Maintain with financially sound and reputable insurance
companies, insurance on all its property, covering such liabilities and such
risks (including business interruption risks) and in such amounts as is
consistent with sound business practice and reasonably satisfactory to the Agent
and furnish to the Agent upon request full information as to the insurance
carried.
8.3 Compliance with Laws and Taxes. Comply with, and Holding Company
Borrower shall cause each Euronet Entity to comply with, any and all laws,
statutes, rules, regulations, orders, judgments, decrees and awards, a violation
of which, in any respect, taken as a whole, may materially and adversely affect
the Borrowers' business, assets, operations or condition, financial or
otherwise, including, without limitation, those regarding the collection,
payment and deposit of employees' income, unemployment, and Social Security
taxes and those regarding environmental matters; pay when due all taxes,
assessments and governmental charges and levies upon it or its income, profits
or property, except those which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves have been set aside;
make a timely payment or deposit of all FICA payments and withholding taxes
required of it under applicable law; and, upon request, furnish to the Agent
evidence satisfactory to the Agent that such payments have been made.
8.4 Financial Statements, Reports, etc. Maintain, and Holding Company
Borrower shall cause each Euronet Entity to maintain, a system of accounting
established and administered in accordance with GAAP and furnish to the Agent:
(a) Annual and Consolidating Financial Statements. Within seventy-five
(75) days after the close of the fiscal year of the Holding Company Borrower,
(i) audited financial statements of the Euronet Entities as a group, prepared in
accordance with GAAP, including a balance sheet and statements of stockholders'
equity, income and cash flows, prepared on a consolidated basis and setting
forth in comparative form the corresponding figures for the preceding fiscal
year, all in reasonable detail, accompanied by an unqualified opinion thereon or
an unqualified opinion with explanatory language added to the auditors' standard
report of independent certified public accountants satisfactory to the Agent,
which opinion shall state that the financial statements fairly present the
financial condition and results of operations and cash flows of the Euronet
Entities as a group as of the end of and for such fiscal year in conformity with
GAAP, and a certificate of such accountants stating that, in making the
examination necessary for their opinion, they obtained no knowledge, except as
specifically stated, of any Default or Event of Default continuing as of the
date of such certificate, (ii) unaudited financial statements of the U.S.
Subsidiary Borrowers, prepared in accordance with GAAP, including a balance
sheet and statements of stockholders' equity, income and cash flows, in the
format contained in Schedule 7.5, prepared on a combined basis, and (iii)
unaudited individual financial statements of Holding Company Borrower, prepared
in accordance with GAAP, including a balance sheet and statements of
stockholders' equity, in the format contained in Schedule 7.5.
(b) Quarterly Reporting. Within forty-five (45) days after the end of
each fiscal quarter, (i) (a) consolidated financial statements for the Euronet
Entities as a
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group, (b) combined financial statements for the U.S. Subsidiary Borrowers, in
the format contained in Schedule 7.5 and (c) an individual financial statement
for Holding Company Borrower, in the format contained in Schedule 7.5, in each
case for the quarter then ended, including a balance sheet and statements of
stockholders' equity, income and cash flows for such quarter and for the period
from the beginning of the respective fiscal year to the end of such quarter,
setting forth in each case in comparative form the corresponding figures for the
corresponding period in the preceding fiscal year, accompanied by (ii) a
certificate of the chief financial officer or treasurer of a Borrower or the
Holding Company Borrower, as applicable, stating that said financial statements
set forth in subparagraph (i) above, fairly present the financial condition and
results of operations of the applicable entity or entities in accordance with
GAAP consistently applied, as of the end of and for such period (subject to
normal year-end adjustments and to the absence of footnote disclosures) and
that, to the best of such officer's knowledge, no Default or Event of Default
has occurred under this Agreement or, if any Default or Event of Default exists,
stating the nature and status thereof, and (iii) the most recent 10Q or 10K, as
applicable, filed by any Borrower with the SEC.
(c) [Intentionally Omitted.]
(d) Compliance Certificate. Together with each set of financial
statements required under paragraphs (a) and (b) of this Section 8.4, a
compliance certificate of the Holding Company Borrower in substantially the form
of Exhibit 8.4 (a "Compliance Certificate"), signed on its behalf by the chief
financial officer or treasurer of the Holding Company Borrower, showing the
calculations necessary to determine compliance with all financial covenants
contained in Article 9 of this Agreement and stating that (i) all of the
representations and warranties set forth in Article 7 hereof (including those
referring to the Schedules to this Agreement) with respect to each Borrower,
shall be true and correct as though made on and as of the date of the Compliance
Certificate, except for matters specifically updated or described in the
Compliance Certificate, and (ii) that no Default or Event of Default exists or,
if any Default or Event of Default exists, stating the nature and status
thereof.
(e) SEC and Other Filings. Upon the request of Lender, and as set
forth in Section 8.4(b), copies of all registration statements and annual,
periodic or other regular reports, final proxy statements and such other similar
information as shall be filed by any Borrower with the Securities and Exchange
Commission (the "SEC"), any national securities exchange or (to the extent not
duplicative) any other similar U.S. or foreign Governmental Authority and copies
of all notices, financial statements, reports and proxy statements so mailed.
(f) Litigation. Prompt notice of all legal, arbitration or mediation
proceedings and of all proceedings by or before any Governmental Authority
affecting any Borrower or Borrowers which, if adversely determined, could
reasonably be expected to result in a monetary loss in an amount in excess of
One Million Dollars ($1,000,000) individually or in excess of One Million
Dollars ($1,000,000) in the aggregate for all such proceedings and of the
issuance by any Governmental Authority of any injunction, order or other
restraint prohibiting, or having the effect of prohibiting
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or delaying, any action on the part of any Borrower, which injunction, order or
restraint could reasonably be expected to materially and adversely affect the
business, properties or affairs of any Borrower (on a consolidated or
unconsolidated basis) or the institution of any proceedings seeking any such
injunction, order or other restraint.
(g) Reportable Events. If at any time after the Closing Date, any
Borrower adopts, sponsors or contributes to any Defined Benefit Pension Plan, as
soon as possible and in any event within ten (10) days after such Borrower knows
that any Reportable Event has occurred with respect to any such Defined Benefit
Pension Plan, a statement, signed by an authorized officer of such Borrower,
describing said Reportable Event and the action which such Borrower proposes to
take with respect thereto.
(h) Environmental Notices. As soon as possible and in any event within
ten (10) days after receipt, a copy of (i) any notice or claim to the effect
that any Borrower is or may be liable to any person as a result of the release
by such Borrower, or any other Person of any toxic or hazardous waste or
substance into the environment or that all or any of its properties is subject
to an Environmental Lien or (ii) any notice alleging any violation of any
federal, state or local environmental, health or safety law or regulation by any
Borrower after the Closing Date.
(i) Other Information. Such other information (including consolidating
financial reports and other financial information) as the Agent may from time to
time reasonably request.
On request of the Agent, the Borrower shall deliver a letter to Borrower's
accountants (i) authorizing them to provide to Agent the financial statements
set forth in Section 8.4(a)(i), (ii) directing them to send to the Agent true,
correct, and exact copies of any and all financial statements and reports which
are prepared as a result of any audit or other review of operations, finances or
internal controls of the Borrowers (specifically including any reports dealing
with improper accounting or financial practices, defalcation, financial
irregularities, financial reporting errors or misstatements or fraud), and (iii)
authorizing the Agent and each Lender to rely on financial statements of the
Borrowers issued by such accountants, which letter shall be acknowledged and
consented to in writing by such accountants.
8.5 Other Notices. Give prompt notice in writing to the Agent of the
occurrence of any Default or Event of Default and of any other development,
financial or otherwise, which might materially and adversely affect its
business, properties or affairs of any Borrower or the ability of any Borrower
to repay the Obligations.
8.6 Access to Properties and Inspections. Permit the Agent to make
reasonable inspections of the properties, corporate books and financial records
of the Borrowers, to make reasonable examinations and copies of their respective
books of account and other financial records and to discuss their respective
affairs, finances and accounts with, and to be advised as to the same by, their
officers, auditors, accountants and attorneys at such reasonable times and
intervals as the Agent may designate. All of
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the Agent's reasonable expenses incurred for domestic travel in connection with
such audits and inspections of the Borrowers shall be paid for by the Borrowers.
8.7 Use of Proceeds. Use the proceeds of the Revolving Loans to pay
indebtedness to the Bank of America existing on the date of this Agreement, ,to
redeem the Senior Notes, to provide working capital, to make Acquisitions and
for other corporate purposes.
8.8 Payment of Claims. Promptly pay when due all lawful claims, whether for
labor, materials or otherwise.
8.9 Maintain Lender Accounts. Each Borrower shall maintain its principal
depository and operating accounts with Bank of America. Holding Company Borrower
shall cause each Euronet Entity to maintain its principal depository and
operating accounts with Bank of America; provided, however, a Euronet Entity
that is a Foreign Subsidiary may, upon prior written notice to Bank of America,
maintain accounts with other depository institutions necessary for the proper
maintenance of such Foreign Subsidiary's business.
8.10 Post Availability Conditions. All of the "Post Availability
Conditions" as provided in the Euro Credit Agreement shall be satisfied within
60 days of the Closing Date.
ARTICLE 9
FINANCIAL COVENANTS
The Borrowers and the Euronet Entities shall, so long as this Agreement
shall remain in effect or any Obligations shall be unpaid:
9.1 Consolidated Funded Debt/EBITDA Ratio. Maintain as of the last day of
each fiscal quarter, a Consolidated Funded Debt/EBITDA Ratio no greater than
2.00 to 1.00 for each quarter, determined in accordance with GAAP. "Consolidated
Funded Debt/EBITDA Ratio" means the ratio of (i) the aggregate outstanding
principal amount of Funded Debt of the Euronet Entities as of the last day of
the applicable fiscal quarter to (ii) EBITDA of the Euronet Entities for the
four (4) quarters ending on such date plus the pro forma amount of historic
EBITDA for the four (4) quarters ending on such date, of any Euronet Entity
acquired during such fiscal quarter or during any of the three (3) prior fiscal
quarters. "Funded Debt" means, without duplication, all long term and current
Indebtedness as described in subsections (i), (iii) and (vi) of the definition
of "Indebtedness" set forth in Exhibit 1 hereto (including Indebtedness to
shareholders).
9.2 Consolidated Fixed Charge Coverage Ratio. Maintain as of the last day
of each fiscal quarter, a Fixed Charge Coverage Ratio of at least 1.25 to 1.00,
determined on a consolidated basis in accordance with GAAP. "Consolidated Fixed
Charge Coverage Ratio" means, as of the last day of any fiscal quarter, for the
Euronet Entities, the ratio of (i) EBITDAR for the four (4) fiscal quarters
ending on such day less cash Capital Expenditures made during such four (4)
fiscal quarters and tax expense paid and
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dividends paid during such four (4) fiscal quarters to (ii) the sum of interest
expense, recurring, scheduled principal payments and rent payments paid during
such four (4) fiscal quarters, all as calculated in accordance with GAAP.
9.3 Minimum Consolidated EBITDA. Maintain, for the Euronet Entities, (i)
for the period commencing the Closing Date and ending the last day of the first
fiscal quarter to end after the Closing Date a minimum trailing twelve month
Consolidated EBITDA equal to at least $32,535,000 and (ii) for each fiscal
quarter thereafter a minimum trailing twelve month EBITDA equal to the greater
of (x) the minimum trailing twelve month EBITDA required hereunder for the
previous fiscal quarter or (y) 85% of the trailing twelve month Consolidated
EBITDA as of the last day of the previous fiscal quarter. "Consolidated EBITDA"
means EBITDA of the Euronet Entities for each such period, determined on a
consolidated basis in accordance with GAAP.
ARTICLE 10
NEGATIVE COVENANTS
So long as this Agreement shall remain in effect or any of the Obligations
shall be unpaid, unless the Agent and the Required Lenders shall otherwise
consent in writing, each Borrower (unless otherwise specifically set forth
herein) agrees that it will:
10.1 Indebtedness. Not incur, create or suffer to exist any Indebtedness
(other than to the Lenders hereunder), except: (a) trade payables incurred in
the ordinary course of business; (b) Indebtedness existing on the date of this
Agreement and disclosed in Schedule 10.1 hereto; (c) intercompany Indebtedness
to any direct or indirect Subsidiary of Holding Company Borrower that is a
Borrower or Obligor pursuant to this Agreement (provided that the conditions set
forth in Section 6.11 and Section 8.10 have been satisfied with respect to any
such Obligor) or a "Borrower" or "Obligor" as such terms are defined in the Euro
Credit Agreement (provided that the conditions set forth in Section 6.11 and
Section 8.10 of the Euro Credit Agreement have been satisfied with respect to
any such "Obligor"); (d) Indebtedness under any Interest Rate Contract to the
extent relating to, (i) outstanding Indebtedness of the Euronet Entities
otherwise allowed under this Agreement, or (ii) Indebtedness for which a lender
has provided a commitment in an amount reasonably anticipated to be incurred by
the Euronet Entities in the following twelve (12) months after such Interest
Rate Contract has been entered into, and such Indebtedness is otherwise allowed
under this Agreement; (e) Indebtedness under other Hedging Agreements to the
extent related to (i) Indebtedness of the Borrowers otherwise allowed under this
Agreement, or (ii) obligations to purchase assets, properties or services
otherwise allowed under this Agreement; provided such Hedging Agreements do not
increase the Indebtedness outstanding of the Euronet Entities other than as a
result of fluctuations in foreign currency exchange rates or by reason of
reasonable fees, indemnities and compensation payable thereunder; (f)
Indebtedness in respect of performance bonds incurred in the ordinary course of
Borrowers' business; (g) Indebtedness consisting of guarantees, indemnities or
obligations in respect of purchase price adjustments in connection with the
acquisition or disposition of Assets or shares of capital stock, so long as such
acquisitions or dispositions are otherwise permitted under this Agreement; (h)
Indebtedness consisting of a Borrower's guaranty of its Subsidiary's
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Indebtedness to the extent that the Subsidiary's Indebtedness is reflected in
the consolidated balance sheet of the Euronet Entities; (i) Indebtedness
consisting of limited financial or contractual performance guaranties executed
by a Borrower to secure the performance obligation of any of its Subsidiaries
incurred in such Borrower's ordinary course of business, consistent with past
practice; (j) Indebtedness to the extent it represents a replacement, renewal,
refinancing or extension of outstanding Indebtedness provided for herein; (k)
Indebtedness incurred with respect to Acquisitions provided that such Borrower
has complied with the provisions of Section 10.4(e); (l) Indebtedness under
capitalized leases incurred in the ordinary course of business; and (m) in
addition to the Indebtedness described in Section 10.1(a) through Section
10.1(l), Indebtedness on a consolidated basis for the Borrowers, not exceeding,
at any time outstanding, an aggregate principal amount of Five Hundred Thousand
Dollars ($500,000).
10.2 Liens. Not create, incur, or suffer to exist any other Lien in, of or
on any of their respective properties (now owned or hereafter acquired) or on
any income or revenues or rights in respect of any thereof, except:
(a) Liens in favor of the Agent and the Lenders created by the Loan
Documents and Liens in favor of the "Agent" and the "Lenders" created by the
"Loan Documents" as such terms are defined in the Euro Credit Agreement;
(b) Liens for taxes, assessments or governmental charges or levies, if
the same shall not at the time be delinquent or thereafter can be paid without
penalty, or are being contested in good faith and by appropriate proceedings;
(c) Liens imposed by law, such as carriers', warehousemen's and mech-
anics' Liens and other similar Liens arising in the ordinary course of business,
that secure payment of obligations not more than sixty (60) days past due except
for such Liens as are being contested in good faith by appropriate proceedings;
(d) Liens arising out of pledges or deposits under laws relating to
worker's compensation, unemployment insurance, old age pensions, or other social
security or retirement benefits, or under similar laws;
(e) Liens existing on the date of this Agreement and disclosed in
Schedule 10.2 hereto;
(f) Liens securing equipment under equipment leases arising in the
ordinary course of business, but only to the extent that such Liens secure only
the equipment being leased;
(g) Liens securing Indebtedness incurred by any Euronet Entity which
becomes a Euronet Entity as a result of an Acquisition;
(h) Easements, rights-of-way, restrictions and other similar
charges or encumbrances incurred in the ordinary course of business not
interfering in any material respect with the Borrowers' business or operations;
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(i) Options to purchase stock of a Borrower under stock-based compen-
sation plans or arrangements in favor of employees of such Borrower and
non-employee directors of such Borrower;
(j) Liens arising by reason of any judgment, decree or order of any
court not constituting an Event of Default, so long as such Liens are adequately
bonded and any appropriate legal proceedings that may have been duly initiated
for the review of such judgment, decree or order shall not have been finally
terminated or the period within which such proceedings may be initiated shall
not have expired;
(k) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like nature
incurred in the ordinary course of business (other than contracts for the
payment of money);
(l) Liens securing Interest Rate Contracts or Hedging Agreements per-
mitted under Section 10.1;
(m) Liens arising from purchase money indebtedness, so long as such
Liens extend only to the assets constructed, expanded, installed, acquired or
improved with such purchase money indebtedness and do not secure any
Indebtedness in an amount in excess of such purchase money indebtedness;
(n) Any extension, renewal, or replacement, in whole or in part, of
any Lien described in the foregoing clauses (a) through (m); provided that any
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced;
(o) Cash deposited with banks that participate in the Euronet Enti-
ties' ATM network in the ordinary course of business to secure cash contributed
by such banks for use in the ATM network and cash deposited with vendors or
suppliers of PINs or mobile phone time to any Euronet Entity in the ordinary
course of business to secure accounts payable to such vendors or suppliers;
(p) Rights or Liens granted to vendors or suppliers of PINs or on-line
mobile or long distance phone time (including, without limitation, telephone
operators) in PIN inventory, PIN accounts receivable or restricted cash accounts
associated with the purchase or sale of such PINs or phone time, including the
rights and Liens of mobile operators in the Mobile Network Trust Arrangement and
(q) Pledges on the stock, shares or other equity interests in any
entity acquired in an Acquisition permitted by Section 10.4(e) to secure
Indebtedness permitted by Section 10.1(k).
Provided, however, the Liens set forth in subsections (j) through (m)
above, and any extensions, renewals, or replacements of such Liens, shall not
encumber
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assets of the Borrowers at any time with a value in excess of One Million
Dollars ($1,000,000) in the aggregate.
10.3 Sale and Lease-Back Transactions. Not enter into any arrangement,
directly or indirectly, with any person whereby it shall sell or transfer any
property, real or personal, used or useful in its business, whether now owned or
hereafter acquired, and thereafter rent or lease such property or other property
which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred, provided that the Borrowers may enter into
any sale and lease-back transaction if (a) at the time of such transaction no
Default or Event of Default shall have occurred and be continuing, (b) the
proceeds from the sale of the subject property shall be at least equal to its
fair market value, and (c) the subject property shall have been acquired by such
Borrower after the date of this Agreement and held by it for not more than one
year. The provisions of this Section 10.3 shall not apply to a sale and lease
back of ATM machines or POS terminals in the ordinary course of business when
such sale and leaseback is entered into in connection with an agreement between
any Borrower and a customer for the provision of services, such as the
outsourced operation of the ATMs or POS terminals or the licensing and
maintenance of software for the operation of such ATMs or POS terminals.
10.4 Mergers, Transfers of Assets, Acquisitions. Not merge into or
consolidate with any other Person, or permit any other Person to merge into or
consolidate with it; sell, transfer, lease or otherwise dispose of (in one
transaction or in a series of transactions) any Assets or any capital stock of
any Borrower; or be a party to any Acquisition of another Person or any
acquisition of all or substantially all of another Person's assets, other than:
(a) sales of inventory in the ordinary course of business;
(b) the lease of terminal equipment in the ordinary course of business;
(c) the disposition of obsolete or worn-out fixed assets or other prop-
erty no longer required by or useful to it in connection with the operation of
its business;
(d) sales, assignments, transfers or other dispositions of Assets
for cash consideration, but only so long as (i) the consideration received by
the Borrowers is not less than fair market value of the Assets sold; and (ii)
the cash consideration thereof is used within twelve (12) months to, (A)
permanently repay or prepay any then outstanding Obligations, or (B) invest in
properties or assets useful in an ATM network business or transaction processing
business and which will benefit the Borrowers;
(e) any Acquisition by a Borrower, so long as the Borrower Agent gives
Agent thirty (30) days prior written notice of such Acquisition or completion of
an Acquisition under an Agreement executed prior to the Closing Date, so long as
the Borrower Agent has notified the Agent of such Acquisition prior to the
Closing Date, the Borrower Agent shall provide to the Agent the following
information: pro forma
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financial statements and projections and a pro forma Compliance Certificate,
demonstrating that Borrowers will be, after giving effect to the Acquisition, in
compliance with each of the financial covenants set forth in Article 9 of this
Agreement. For purposes of such pro forma financial statements and pro forma
Compliance Certificate, to calculate the Borrowers' compliance with the
financial covenants set forth in Article 9 hereof, after an acquisition of one
hundred percent (100%) of the stock or assets of a company (an "Acquired
Company"), the EBITDA and EBITDAR of the Acquired Company, based upon pro forma
numbers acceptable to the Agent, from its last four rolling quarters may be
included to the extent that such numbers reflect cash flow from assets fully
transferred to the Borrowers as a result of the acquisition of the Acquired
Company, with adjustments for any transactions not in the ordinary course of
business. If a Borrower acquires less than one hundred percent (100%) of the
stock or assets of an Acquired Company, the Agent shall make a good faith
determination of what portion, if any, of such Acquired Company's EBITDA and
EBITDAR to include in the proforma financial statements. Any Acquired Company
shall satisfy the condition set forth in Section 8.10, as soon as practicable
but in no event greater than 30 days from the acquisition of such Acquired
Company, and with respect to any Acquired Company that is organized under the
laws of the United States or the laws of any State therein shall execute a
guaranty agreement in form and substance satisfactory to the Agent and the
Agent, in its sole discretion may require 100% of the equity of any such
Acquired Company to be pledged hereunder pursuant to a Pledge Agreement in form
and substance satisfactory to the Agent;
(f) upon thirty (30) days written notice to Agent, any merger
or consolidation of any Borrower with any other Borrower or any merger or
consolidation of any other Obligor with any Borrower or other Obligor so long as
in the event any such merger or consolidation involves (i) a Borrower, such
Borrower shall be the surviving entity, or concurrently with any such merger or
consolidation the surviving entity shall become a Borrower or guarantor or (ii)
a Material Subsidiary, such Material Subsidiary shall be the surviving entity,
or concurrently with any such merger or consolidation the surviving entity shall
become a Borrower or guarantor, and if any such Borrower or Material Subsidiary
is required to pledge its shares in accordance with this Agreement, the shares
of such surviving entity shall be pledged to the Agent for the benefit of the
Lenders, and in any event all other conditions set forth in Section 8.10 shall
be satisfied with respect to such surviving entity in form and substance
satisfactory to the Agent; or
(g) issuances of capital stock or treasury stock made in the ordinary
course of the Borrowers' business so long as such issuance or issuances does not
result in an Event of Default under Section 11.1(j).
10.5 Creation of Subsidiaries. Except upon fifteen (15) days prior written
notice to Agent, not create any Foreign Subsidiaries or U.S. Subsidiaries. Upon
the creation of any U.S. Subsidiary, such U.S. Subsidiary shall promptly become
a party to this Agreement pursuant to Section 13.2. of shall executed a guaranty
agreement in form and substance satisfactory to the Agent, and the Agent, in its
sole discretion may require
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the 100% of the equity of any such U.S. Subsidiary be pledged hereunder pursuant
to a Pledge Agreement in form and substance satisfactory to the Agent.
10.6 Subsidiary Dividend Restrictions. Not permit any U.S. Subsidiary of
any Borrower to be bound by or enter into any agreement, amendment, covenant,
understanding or revision to any agreement which prohibits or restricts the
ability of any such subsidiary to declare and pay dividends or make any other
distribution to any Borrower.
10.7 Dividend Restriction. Holding Company Borrower may not declare any
dividends or make any other distributions to shareholders or other persons
holding equity interests in Holding Company Borrower.
10.8 Use of Proceeds. Not use any of the proceeds of the Loans (a) for any
purpose that entails a violation of, or that is inconsistent with, the
provisions of the regulations of the Board of Governors of the Federal Reserve
System, including without limitation Regulations T, U and X or (b) to make any
Acquisition for which the board of directors of the target company has not given
its consent or approval.
10.9 Loans, Advances and Investments. Not make any loans, advances or
extensions of credit to, or investments (whether acquisitions of stock or
securities or otherwise) in, or acquire any Assets of, any Persons, including,
without limitation, any Affiliates of any Borrower or any of its partners,
shareholders, officers or employees (collectively, "Investments"), other than:
(a) Assets acquired or expenses advanced in the ordinary course of
business, including extensions of credit to a Borrower's customers in the
ordinary course of such Borrower's business consistent with past practice;
(b) Investments in short-term obligations issued or fully guaranteed
by the U.S. Government and funds comprised of such obligations;
(c) certificates of deposit and other time deposits with, and
any other Investment purchased through Bank of America;
(d) commercial paper rated A-1 by Standard & Poor's Corporation
or P-1 by Xxxxx'x Investors Service, Inc.;
(e) existing Investments listed on Schedule 10.9 hereto;
(f) Investments made to acquire Acquisitions permitted under Section
10.4 above;
(g) Investments of Holding Company Borrower in or to any one or
more U.S. Subsidiaries (provided Holding Company Borrower may not make an
Investment in any U.S. Subsidiary which is not a Borrower hereunder) or Foreign
Subsidiaries of Holding Company Borrower (provided that the conditions set forth
in
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Section 6.11 and Section 8.10 of the Euro Credit Agreement have been satisfied
with respect to any such Foreign Subsidiaries);
(h) Investments permitted under Section 10.1 of this Agreement; and
(i) Investments in minority interests in other Persons and Investments
for the purchase of tradenames, software or patents not to exceed Ten Million
Dollars ($10,000,000) in the aggregate, unless otherwise approved in writing by
the Agent.
In no event may any U.S. Subsidiary Borrower make any Investment in any
Subsidiary of such U.S. Subsidiary Borrower (unless such Subsidiary is a U.S.
Subsidiary Borrower) or in Holding Company Borrower.
10.10 Negative Pledge. Not permit, to exist any Lien on any of its
property, except as permitted under Section 10.2 above. On the request of the
Agent, the Borrowers will execute acknowledgments or other forms of notice of
such negative pledge, and the Agent may record or file the same in the
appropriate filing offices.
10.11 Liquidation or Change in Business. Not liquidate, dissolve or
discontinue any Borrower or any material business line, materially change its
general business purpose or the character of its business, engage in any type of
business not reasonably related to its business as conducted on the Closing
Date.
10.12 Senior Notes. Not send any redemption or purchase notice to any
holder of the Senior Notes until the Availability Date; provided however, the
Borrowers may redeem or repurchase the Senior Notes with monies from sources
other than the Loans or extensions of credit provided hereunder. Not permit any
Senior Notes to be outstanding after the date that is 45 days from the
Availability Date.
ARTICLE 11
EVENTS OF DEFAULT
11.1 Events of Default. Each of the following events shall constitute an
Event of Default under this Agreement:
(a) Misrepresentation. Any representation or warranty made or deemed
made by or on behalf of any Borrower to the Agent and the Lenders under or in
connection with this Agreement, any Loan, or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall be
materially false on the date as of which made;
(b) Nonpayment. Any Borrower shall fail to pay any principal of the
Note, any interest upon the Note, any reimbursement obligation respecting any
Letter of Credit or any Fee or other Obligations within five (5) Business Days
after the same becomes due;
(c) Non-Performance of Other Covenants. Any Borrower shall fail to
perform or comply with any of the terms or provisions of Article 8 of this
Agreement
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and such failure is not cured within fifteen (15) days or any Borrower shall
fail to perform or comply with or violates any covenant set forth in Article 9,
Article 10, Section 8.10 or any other covenant, term or provision hereof;
(d) Other Indebtedness. The failure of any Euronet Entity to make any
payment of principal or interest within five (5) Business Days after the same
becomes due on any Indebtedness to the Agent, any Lender or any of the Agent's
or Lenders' affiliates or subsidiaries (other than Indebtedness relating to the
Loans) or with respect to any Indebtedness to any other Person or Persons or any
default occurs under any agreement which evidences, secures or relates to, any
such Indebtedness;
(e) Insolvency. Any Borrower shall (i) have an order for relief enter-
ed with respect to it under the federal Bankruptcy Code or under any other laws
relating to bankruptcy, insolvency, dissolution, winding up, liquidation or
reorganization or relief of debtors, (ii) not pay, or admit in writing its
inability to pay, its debts generally as they become due, (iii) make an
assignment for the benefit of creditors, (iv) apply for, seek, consent to, or
acquiesce in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its property,
(v) institute any proceeding seeking an order for relief under the federal
Bankruptcy Code or under any other laws relating to bankruptcy, insolvency,
dissolution, winding up, liquidation or reorganization or relief of debtors,
(vi) take any corporate action to authorize or effect any of the foregoing
actions set forth in this paragraph (e), or (vii) fail to contest in good faith
any appointment or proceeding described in paragraph (f) of this Section 11.1,
or any of the foregoing shall occur with respect to any Euronet Entity (other
than any Borrower) which would have a material adverse effect on the business or
financial condition of the Borrowers taken as a whole or on the Euronet Entities
taken as a whole;
(f) Appointment of Receiver. Without the application, approval or con-
sent of any Euronet Entity, a receiver, trustee, examiner, liquidator or similar
official shall be appointed for any Euronet Entity or any substantial part of
its property, or a proceeding described in clause (v) of paragraph (e) of this
Section 11.1 shall be instituted against any Euronet Entity;
(g) Judgment. Any Borrower or Borrowers shall fail within forty-five
(45) days to pay, bond or otherwise discharge any judgment or order for the
payment of money in excess of Seven Hundred Fifty Thousand Dollars ($750,000) in
the aggregate for the Borrowers that is not stayed on appeal or otherwise being
appropriately contested in good faith;
(h) ERISA. Any Reportable Event shall occur in connection with any
Defined Benefit Pension Plan adopted or sponsored by a Borrower or to which such
Borrower makes contributions, which occurrence may have a materially adverse
effect on such entity's business or financial condition;
(i) Material Adverse Change. Upon the occurrence of any event or
condition which the Agent, in its sole discretion, determines is a material
adverse change
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in the business or financial condition of the Borrowers on an unconsolidated or
on a consolidated basis or which materially and adversely affects the Borrowers'
ability to perform its obligations to the Agent and the Lenders; or
(j) Change of Control. Except as permitted by Section 10.4, any
change of Control of any U.S. Subsidiary Borrower or any acquisition by a
third-party of more than fifty percent (50%) of the ownership or voting capital
of Holding Company Borrower.
(k) Euro Credit Agreement. Any "Event of Default" shall have occurred
pursuant to the Euro Credit Agreement.
11.2 Rights and Remedies. Upon the occurrence of each and every Event of
Default (other than an event described in paragraph (e) or (f) of Section 11.1
above), and at any time thereafter during the continuance of such event, the
Agent may (and shall at the instruction of the Required Lenders), by notice to
the Borrower Agent, take either or both of the following actions, at the same or
different times: (i) terminate forthwith the Commitment and (ii) declare the
Loans then outstanding to be forthwith due and payable in whole or in part,
whereupon the principal of the Loans so declared to be due and payable, together
with all accrued interest thereon and all other Obligations shall become
forthwith due and payable, without presentment, demand, protest or any other
notice of any kind, all of which are hereby expressly waived by the Borrowers,
anything contained herein or in any other Loan Document to the contrary
notwithstanding; and in the case of any event described in paragraph (e) or (f)
of Section 11.1 above, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with all accrued interest
thereon and all other Obligations shall automatically become due and payable,
without presentment, demand, protest or any other notice of any kind, all of
which are hereby expressly waived by the Borrowers, anything contained herein or
in any other Loan Document to the contrary notwithstanding.
Upon the occurrence and during the continuance of any Event of Default, the
Agent may also exercise any or all of its rights and remedies, whether existing
under this Agreement, other Loan Documents, applicable law or otherwise.
ARTICLE 12
AGENT
12.1 Appointment and Authority. Each of the Lenders and the L/C Issuer
hereby irrevocably appoints Bank of America to act on its behalf as the Agent
hereunder and under the other Loan Documents and authorizes the Agent to take
such actions on its behalf and to exercise such powers as are delegated to the
Agent by the terms hereof or thereof, together with such actions and powers as
are reasonably incidental thereto. The provisions of this Article are solely for
the benefit of the Agent, the Lenders and the L/C Issuer, and neither the
Borrowers nor any other Obligor shall have rights as a third party beneficiary
of any of such provisions.
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12.2 Rights as a Lender. The Person serving as the Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Agent and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated or unless the context
otherwise requires, include the Person serving as the Agent hereunder in its
individual capacity. Such Person and its Affiliates may accept deposits from,
lend money to, act as the financial advisor or in any other advisory capacity
for and generally engage in any kind of business with the Borrowers or any
Subsidiary or other Affiliate thereof as if such Person were not the Agent
hereunder and without any duty to account therefor to the Lenders.
12.3 Exculpatory Provisions. The Agent shall not have any duties or
obligations except those expressly set forth herein and in the other Loan
Documents. Without limiting the generality of the foregoing, the Agent:
(a) shall not be subject to any fiduciary or other implied duties,
regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exer-
cise any discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Agent is required to
exercise as directed in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be expressly provided for herein or in the
other Loan Documents), provided that the Agent shall not be required to take any
action that, in its opinion or the opinion of its counsel, may expose the Agent
to liability or that is contrary to any Loan Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the
other Loan Documents, have any duty to disclose, and shall not be liable for the
failure to disclose, any information relating to the Borrowers or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Agent or any of its Affiliates in any capacity.
The Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary, or as the Agent shall
believe in good faith shall be necessary, under the circumstances as provided in
Sections 13.9 and 11.2) or (ii) in the absence of its own gross negligence or
willful misconduct. The Agent shall be deemed not to have knowledge of any
Default unless and until notice describing such Default is given to the Agent by
a Borrower, the Borrower Agent, a Lender or the L/C Issuer.
The Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents of
any certificate, report or other document delivered hereunder or thereunder or
in connection herewith or therewith, (iii) the performance or observance of any
of the covenants, agreements or other terms or conditions set forth herein or
therein or the occurrence of any Default, (iv) the validity, enforceability,
effectiveness or genuineness of this Agreement, any other Loan Document or any
other agreement, instrument or document or (v) the satisfaction of any condition
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set forth in Article 6 or elsewhere herein, other than to confirm receipt of
items expressly required to be delivered to the Agent.
12.4 Reliance by Agent. The Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing (including any
electronic message, Internet or intranet website posting or other distribution)
believed by it to be genuine and to have been signed, sent or otherwise
authenticated by the proper Person. The Agent also may rely upon any statement
made to it orally or by telephone and believed by it to have been made by the
proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or
the issuance of a Letter of Credit, that by its terms must be fulfilled to the
satisfaction of a Lender or the L/C Issuer, the Agent may presume that such
condition is satisfactory to such Lender or the L/C Issuer unless the Agent
shall have received notice to the contrary from such Lender or the L/C Issuer
prior to the making of such Loan or the issuance of such Letter of Credit. The
Agent may consult with legal counsel (who may be counsel for the Borrowers),
independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of
any such counsel, accountants or experts.
12.5 Delegation of Duties. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder or under any other Loan Document by
or through any one or more sub-agents appointed by the Agent. The Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of this Article shall apply to any such sub-agent and to the Related
Parties of the Agent and any such sub-agent, and shall apply to their respective
activities in connection with the syndication of the credit facilities provided
for herein as well as activities as Agent.
12.6 Resignation of Agent. (a) The Agent may at any time give notice of its
resignation to the Lenders, the L/C Issuer and the Borrower Agent. Upon receipt
of any such notice of resignation, the Required Lenders shall have the right, in
consultation with the Borrower Agent, to appoint a successor, which shall be a
bank with an office in the United States, or an Affiliate of any such bank with
an office in the United States. If no such successor shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within 30 days after the retiring Agent gives notice of its resignation, then
the retiring Agent may on behalf of the Lenders and the L/C Issuer, appoint a
successor Agent meeting the qualifications set forth above; provided that if the
Agent shall notify the Borrower Agent and the Lenders that no qualifying Person
has accepted such appointment, then such resignation shall nonetheless become
effective in accordance with such notice and (1) the retiring Agent shall be
discharged from its duties and obligations hereunder and under the other Loan
Documents (except that in the case of any collateral security held by the Agent
on behalf of the Lenders or the L/C Issuer under any of the Loan Documents, the
retiring Agent shall continue to hold such collateral security until such time
as a successor Agent is appointed) and (2) all payments, communications and
determinations provided to be made by, to or through the Agent shall instead be
made by or to each Lender and the L/C Issuer directly, until such time as the
Required Lenders appoint a successor Agent as provided for above in this
Section. Upon the acceptance of
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a successor's appointment as Agent hereunder, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the
retiring (or retired) Agent, and the retiring Agent shall be discharged from all
of its duties and obligations hereunder or under the other Loan Documents (if
not already discharged therefrom as provided above in this Section). The fees
payable by the Borrowers or Borrower Agent to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Borrowers and such successor. After the retiring Agent's resignation hereunder
and under the other Loan Documents, the provisions of this Article and Section
13.6 shall continue in effect for the benefit of such retiring Agent, its
sub-agents and their respective Related Parties in respect of any actions taken
or omitted to be taken by any of them while the retiring Agent was acting as
Agent.
(b) Any resignation by Bank of America as Agent pursuant to this
Section shall also constitute its resignation as L/C Issuer. Upon the acceptance
of a successor's appointment as Agent hereunder, (a) such successor shall
succeed to and become vested with all of the rights, powers, privileges and
duties of the retiring L/C Issuer, (b) the retiring L/C Issuer shall be
discharged from all of their respective duties and obligations hereunder or
under the other Loan Documents, and (c) the successor L/C Issuer shall issue
letters of credit in substitution for the Letters of Credit, if any, outstanding
at the time of such succession or make other arrangement satisfactory to the
retiring L/C Issuer to effectively assume the obligations of the retiring L/C
Issuer with respect to such Letters of Credit.
12.7 Non-Reliance on Agent and Other Lenders. Each Lender and the L/C
Issuer acknowledges that it has, independently and without reliance upon the
Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender and the L/C
Issuer also acknowledges that it will, independently and without reliance upon
the Agent or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any
document furnished hereunder or thereunder.
12.8 Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to any Borrower or
other Obligor, the Agent (irrespective of whether the principal of any Loan or
L/C Obligation shall then be due and payable as herein expressed or by
declaration or otherwise and irrespective of whether the Agent shall have made
any demand on the Borrowers) shall be entitled and empowered, by intervention in
such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders, the
L/C Issuer and the Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders, the L/C Issuer and the
Agent and their respective agents
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and counsel and all other amounts due the Lenders, the L/C Issuer and the Agent
under the Fee Letter and Section 13.6) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and the L/C Issuer to make such payments to the Agent and, in the
event that the Agent shall consent to the making of such payments directly to
the Lenders and the L/C Issuer, to pay to the Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Agent and
its agents and counsel, and any other amounts due the Agent under the Fee Letter
and Section 13.6.
Nothing contained herein shall be deemed to authorize the Agent to
authorize or consent to or accept or adopt on behalf of any Lender or the L/C
Issuer any plan of reorganization, arrangement, adjustment or composition
affecting the Obligations or the rights of any Lender or to authorize the Agent
to vote in respect of the claim of any Lender in any such proceeding.
12.9 Collateral and Guaranty Matters. The Lenders and the L/C Issuer
irrevocably authorize the Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the
Agent under any Loan Document (i) upon termination of the Commitments and
payment in full of all Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit, (ii)
that is sold or to be sold as part of or in connection with any sale permitted
hereunder or under any other Loan Document, or (iii) subject to Section 13.9, if
approved, authorized or ratified in writing by the Required Lenders;
(b) to subordinate any Lien on any property granted to or held by
the Agent under any Loan Document to the holder of any Lien on such property
that is permitted by Section 10.2; and
(c) to release any Guarantor from its obligations under the Guaranty
if such Person ceases to be a Subsidiary as a result of a transaction permitted
hereunder.
Upon request by the Agent at any time, the Required Lenders will confirm in
writing the Agent's authority to release or subordinate its interest in
particular types or items of property, or to release any Guarantor from its
obligations under the Guaranty pursuant to this Section 12.9.
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ARTICLE 13
MISCELLANEOUS
13.1 Notices. Notices and other communications provided for herein shall be
in writing and shall be delivered by hand or overnight courier service, mailed
or sent by telecopy or other telegraphic communications equipment of the sending
party, as follows:
(a) if to Borrower Agent or any Borrower, to it c/o Euronet Worldwide,
Inc., as Borrower Agent at 0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxx
00000 (Facsimile: 913-327-1921).
(b) if to the Agent, to it at XX Xxx 000000, MO8-060-12-02,
64121-9038, Attention: Middle Market Banking (Facsimile: 816-979-7174) (if by
hand delivery or overnight courier service then to 0000 Xxxx, Xxxxx 0000, Xxxxxx
Xxxx, Xxxxxxxx 00000, Attention: Middle Market Banking) with a required copy to
Xxxxx Xxxx, Xxxxxxx & Xxxx X.X., 0000 Xxxxx Xxxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx
00000 (Facsimile: 816/292-2001);
or to such other address or telecopy number as any party may direct by notice
given as provided in this Section 13.1. All notices and other communications
given to any party hereto in accordance with the provisions of this Agreement
shall be deemed to have been given on the date of receipt if delivered by hand
or overnight courier service or sent by telecopy or other telegraphic
communications equipment of the sender, if received on or before 5:00 p.m.,
local time of the recipient, on a Business Day, or on the next Business Day if
received after 5:00 p.m. on a Business Day or on a day that is not a Business
Day, or on the date five (5) Business Days after dispatch by certified or
registered mail if mailed, in each case delivered, sent or mailed (properly
addressed) to such party as provided in this Section 13.1 or in accordance with
the latest unrevoked direction from such party given in accordance with this
Section 13.1.
13.2 Additional Subsidiaries. Each U.S. Subsidiary of any Borrower that was
not a U.S. Subsidiary of a Borrower or was not in existence on the date of this
Agreement is required to enter into this Agreement promptly upon becoming such a
U.S. Subsidiary. Upon execution and delivery by Agent and such U.S. Subsidiary
of an instrument in the form of Exhibit 13.2 hereto, such U.S. Subsidiary shall
become a Borrower hereunder with the same force and effect as if originally
named as a Borrower herein. The execution and delivery of any such instrument
shall not require the consent of any Borrower hereunder. The rights and
obligations of each Borrower hereunder shall remain in full force and effect
notwithstanding the addition of any new Borrower as a party to this Agreement.
13.3 Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrowers herein and in the certificates or other
instruments prepared or delivered in connection with or pursuant to this
Agreement or any other Loan Document shall be considered to have been relied
upon by the Agent and the Lenders and shall survive the making by the Lenders of
the Loans and the execution and delivery to the Lenders of the Notes, regardless
of any investigation made by the Agent of the
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Lenders or on its behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any other Obligations
are outstanding.
13.4 Binding Effect. This Agreement shall become effective when it shall
have been executed by the Borrower Agent, the Borrowers, the Agent and the
Lenders and thereafter shall be binding upon and inure to the benefit of the
Borrower Agent, the Borrowers, the Agent, the Lenders and their respective
successors and permitted assigns, except that neither the Borrower Agent nor any
Borrower shall have the right to assign or delegate any of their respective
rights or duties hereunder or any interest herein without the prior written
consent of the Agent.
13.5 Successors and Assigns; Participations. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby, except that
neither the Borrowers nor any other Obligor may assign or otherwise transfer any
of its rights or obligations hereunder without the prior written consent of the
Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section 13.5, (ii) by way of
participation in accordance with the provisions of subsection (d) of this
Section 13.5, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section 13.5 (and any
other attempted assignment or transfer by any party hereto shall be null and
void). Nothing in this Agreement, expressed or implied, shall be construed to
confer upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby, Participants to the extent provided in
subsection (d) of this Section and, to the extent expressly contemplated hereby,
the Related Parties of each of the Agent, the L/C Issuer and the Lenders) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including all or a portion of its Commitment and the Loans
(including for purposes of this subsection (b), participations in L/C
Obligations) at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining
amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an
Affiliate of a Lender or an Approved Fund with respect to a Lender,
the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) or, if the Commitment is not
then in effect, the principal outstanding balance of the Loans of the
assigning Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such assignment is
delivered to the Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less
than $1,000,000 unless each of the Agent and, so long as no Event of
Default has occurred and is continuing, the
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Borrower otherwise consents (each such consent not to be unreasonably
withheld or delayed);
(ii) each partial assignment shall be made as an assignment
of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement with respect to the Loans or the
Commitment assigned;
(iii) any assignment of a Commitment must be approved by the Agent
and the L/C Issuer unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise
qualify as an Eligible Assignee);
(iv) the parties to each assignment shall execute and deliver to
the Agent an Assignment and Assumption, together with a processing and
recordation fee of $3,500, and the Eligible Assignee, if it shall not
be a Lender, shall deliver to the Agent a questionnaire in the form
provided by the Agent;
(v) so long as no Default or Event of Default has occurred and
continuing, there shall be no more than two (2) Lenders party to the
Credit Agreement at any time without the consent of the Borrower Agent
(such consent not to be unreasonably withheld or delayed); and
(vi) after giving effect to any such assignment no Lender will
hold exactly 50% of the Commitments.
Subject to acceptance and recording thereof by the Agent pursuant to subsection
(c) of this Section, from and after the effective date specified in each
Assignment and Assumption, the Eligible Assignee thereunder shall be a party to
this Agreement and, to the extent of the interest assigned by such Assignment
and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the
interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall continue
to be entitled to the benefits of Sections 3.5, 5.2 and 13.6 with respect to
facts and circumstances occurring prior to the effective date of such
assignment. Upon request, each Borrower (at its expense) shall execute and
deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of
rights or obligations under this Agreement that does not comply with this
subsection shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Agent, acting solely for this purpose as an agent
of the Borrowers, shall maintain at the Agent's principal office a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and
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addresses of the Lenders, and the Commitments of, and principal amounts of the
Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof
from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrowers, the Agent and the Lenders may treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by each of the
Borrowers and the L/C Issuer at any reasonable time and from time to time upon
reasonable prior notice. In addition, at any time that a request for a consent
for a material or substantive change to the Loan Documents is pending, any
Lender wishing to consult with other Lenders in connection therewith may request
and receive from the Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the consent
of, or notice to, the Borrowers or the Agent, sell participations to any Person
(other than a natural person or a Borrower or any of the Borrowers' Affiliates
or Subsidiaries) (each, a "Participant") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations) owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations
and (iii) the Borrowers, the Agent, the Lenders and the L/C Issuer shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; provided that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification requiring the consent of all
Lenders or the Lenders effected thereby, that affects such Participant. Subject
to subsection (e) of this Section, the Borrowers agree that each Participant
shall be entitled to the benefits of Section 5.2 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to subsection
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 13.7 as though it were a Lender.
(e) Limitations upon Participant Rights. A Participant shall not be
entitled to receive any greater payment under Section 5.2 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrowers' prior written consent. A Participant
that would be a Foreign Lender if it were a Lender shall not be entitled to the
benefits of Section 4.5(b) unless the Borrower is notified of the participation
sold to such Participant and such Participant agrees, for the benefit of the
Borrower, to comply with Section 4.5(c) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign
a security interest in all or any portion of its rights under this Agreement
(including under
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its Note, if any) to secure obligations of such Lender, including any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment shall release such Lender from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender as a party
hereto.
(g) Electronic Execution of Assignments. The words "execution,"
"signed," "signature," and words of like import in any Assignment and Assumption
shall be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for in
any applicable law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records Act,
or any other similar state laws based on the Uniform Electronic Transactions
Act.
(h) Resignation as L/C Issuer after Assignment. Notwithstanding any-
thing to the contrary contained herein, if at any time Bank of America assigns
all of its Commitment and Loans pursuant to subsection (b) above, Bank of
America may, upon 30 days' notice to the Borrower and the Lenders, resign as L/C
Issuer. In the event of any such resignation as L/C Issuer, the Borrowers shall
be entitled to appoint from among the Lenders a successor L/C Issuer hereunder;
provided, however, that no failure by the Borrowers to appoint any such
successor shall affect the resignation of Bank of America as L/C Issuer, as the
case may be. If Bank of America resigns as L/C Issuer, it shall retain all the
rights and obligations of the L/C Issuer hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as L/C Issuer
and all L/C Obligations with respect thereto (including the right to require the
Lenders to make Prime Rate Loans or fund risk participations in Unreimbursed
Amounts).
13.6 Expenses; Indemnity.
(a) The Borrowers, jointly and severally, agree to pay all out
-of-pocket expenses reasonably incurred by the Lenders and the Agent in
connection with the preparation of this Agreement and the other Loan Documents
or in connection with any amendments, modifications or waivers of the provisions
hereof or thereof (whether or not the transactions hereby contemplated shall be
consummated) or incurred by the Agent an the Lenders in connection with the
enforcement or protection of its rights in connection with this Agreement and
the other Loan Documents or in connection with the Loans made or the Note issued
hereunder, including, but not limited to, all appraisal fees (equipment or
otherwise), filing fees and search fees, the fees, charges and disbursements of
Xxxxxxx & Xxxx X.X., counsel for the Agent, and, in connection with any such
amendment, modification or waiver or any such enforcement or protection, the
fees, charges and disbursements of any other counsel for the Agent or the
Lenders. The Borrowers, jointly and severally, further agrees that it shall
indemnify the Agent and the Lenders from and hold it harmless against any
documentary taxes, assessments or charges made by any Governmental Authority by
reason of the Loans or this Agreement or any of the other Loan Documents, other
than taxes on the income of the Agent or any Lender.
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(b) The Borrowers, jointly and severally, agree to indemnify the Agent
and each Lender and their respective directors, officers, employees and agents
(each such person being called an "Indemnitee") against, and to hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including reasonable counsel fees, charges and disbursements,
incurred by or asserted against any Indemnitee arising out of, in any way
connected with, or as a result of (i) the execution or delivery of this
Agreement or any other Loan Document or any agreement or instrument contemplated
thereby, the performance by the parties thereto of their respective obligations
thereunder or the consummation of the transactions contemplated thereby, (ii)
the making of any Loans or the use of the proceeds of the Loans or (iii) any
claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto (each and "Indemnified
Claims"); provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities or
related expenses (i) are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the negligence or willful
misconduct of such Indemnitee and (ii) have not, in whole or in part, arisen out
of or resulted from any act, or omission to act, of any Borrower or any of their
Affiliates.
(c) The provisions of this Section 13.6 shall remain operative and in
full force and effect regardless of the expiration of the term of this
Agreement, the consummation of the transactions contemplated hereby, the
repayment of any of the Loans, the invalidity or unenforceability of any term or
provision of this Agreement or any other Loan Document or any investigation made
by or on behalf of the Agent or any Lender. All amounts due under this Section
13.6 shall be payable on written demand therefor.
13.7 Right of Setoff. If an Event of Default shall have occurred and be
continuing, the Agent and each Lender is hereby authorized at any time and from
time to time, to the fullest extent permitted by law, to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by the Agent or any such
Lender to or for the credit or the account of the Borrower Agent or any the
Borrower against any and all of the Obligations, irrespective of whether or not
the Agent or such Lender shall have made any demand under this Agreement or such
other Loan Document and notwithstanding that such Obligations may be unmatured.
The rights of the Agent and the Lenders under this Section 13.7 are in addition
to other rights and remedies (including other rights of setoff) which the Agent
of the Lenders may have.
13.8 Applicable Law. This Agreement and the other Loan Documents, except as
otherwise expressly provided in such other Loan Documents, shall be governed by
and construed and enforced under and in accordance with the laws of the State of
Missouri applicable to contracts made and to be performed wholly within said
state, without giving effect to choice of law or conflict of law principles.
13.9 Waivers; Amendment. (a) No failure or delay of the Agent or any Lender
in exercising any power or right hereunder shall operate as a waiver thereof,
nor
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shall any single or partial exercise of any such right or power preclude any
other or further exercise thereof or the exercise of any other right or power.
The rights and remedies of the Agent and each Lender hereunder and under the
other Loan Documents are cumulative and are not exclusive of any rights or
remedies which the Agent or the Lenders would otherwise have. No waiver of any
provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower Agent or any Borrower therefrom shall in any event be
effective unless the same shall be contained in a written instrument signed by
the Agent and the Required Lender, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on Borrower Agent or any Borrower in any case shall entitle
Borrower Agent or any Borrower to any other or further notice or demand in
similar or other circumstances. Notwithstanding the foregoing:
(i) without the prior written consent of Agent, no amendment or
waiver shall be effective with respect to any provision in any of the
Loan Documents (including Section 12) to the extent such provision
relates to the rights, duties, immunities or discretion of Agent;
(ii) without the prior written consent of the L/C Issuer, no
amendment or waiver with respect to the provisions of Article 3 shall
be effective;
(iii) without the prior written consent of all Lenders, no waiver
of any Default or Event of Default shall be effective if the Default
or Event of Default relates to any Borrower's failure to observe or
perform any covenant that may not be amended without the unanimous
written consent of Lenders (and, where so provided hereinafter, the
written consent of Agent) as hereinafter set forth in this Section
13.9; and
(iv) written agreement of all Lenders (except a defaulting
Lender) shall be required to effectuate any amendment, modification or
waiver that would (a)
A. increase or extend the Commitment of any Lender;
B. postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees
or other amounts due to the Lenders (or any of them) hereunder or
under any other Loan Document;
C. reduce the principal of, or the rate of interest
specified herein on any Loan, or any fees or other amounts
payable hereunder or under any other Loan Document;
D. change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Loans which is
required for the Lenders or any of them to take any action
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hereunder; provided that Schedule E-1 hereto (Revolving
Commitments) may be amended from time to time by Agent alone to
reflect assignments of Commitments in accordance herewith so long
as the total of the Commitments is not modified except as
otherwise permitted hereunder;
E. amend this Section or any provision of this Agreement
providing for consent or other action by all Lenders;
F. release Collateral other than as expressly permitted by
this Agreement; or
G. change the definitions "Required Lenders";
(b) If any fees are paid to the Lenders as consideration for
amendments, waivers or consents with respect to this Agreement, at Agent's
election, such fees may be paid only to those Lenders that agree to such
amendments, waivers or consents within the time specified for submission
thereof.
(c) If, in connection with any proposed amendment, waiver or consent
(a "Proposed Change") requiring the consent of all Lenders, the consent of
Required Lenders is obtained, but the consent of other Lenders is not obtained
(any such Lenders whose consent is not obtained a "Non-Consenting Lender") then,
so long as the Agent is not a Non-Consenting Lender, at a Borrower's request, an
Eligible Assignee selected by the Borrower Agent or otherwise shall have the
right (but not the obligation) with the Agent's approval, to purchase from the
Non-Consenting Lenders, and the Non-Consenting Lenders agree that they shall
sell, all the Non-Consenting Lenders' Commitments for an amount equal to the
principal balances thereof and all accrued interest and fees with respect
thereto through the date of sale pursuant to an assignment and acceptance
agreement, without premium or discount.
13.10 Suretyship Waivers. Each Borrower hereby expressly waives (a)
diligence, presentment, demand for payment, protest, benefit of any statute of
limitations affecting such Borrower's liability under this Agreement or the Loan
Documents; (b) discharge due to any disability of any Borrower; (c) any defenses
of any Borrower to obligations under this Agreement or the Loan Documents not
arising under the express terms of this Agreement or the Loan Documents or from
a material breach thereof by Agent of the Lenders which under applicable law has
the effect of discharging any Borrower from the obligations as to which this
Agreement is sought to be enforced; (d) the benefit of any act or omission by
Agent of the Lenders which directly or indirectly results in or aids the
discharge of any Borrower from any of the Obligations by operation of law or
otherwise; (e) except as expressly provided herein, all notices whatsoever,
including, without limitation, notice of acceptance of the incurring of the
Indebtedness; (f) any right it may have to require the Agent of the Lenders to
disclose to it any information that the Agent or the Lenders may now or
hereafter acquire concerning the financial condition or any circumstance that
bears on the risk of nonpayment by any other Borrower, including, without
limitation, the release of such other Borrower from the
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Indebtedness; and (g) any requirement that the Agent of the Lenders exhaust any
right, power or remedy or proceed against any other Borrower or any other
security for, or any guarantor of, or any other party liable for, any of the
Indebtedness, or any portion thereof. Each Borrower specifically agrees that it
shall not be necessary or required, and Borrowers shall not be entitled to
require, that the Agent or the Lenders (i) file suit or proceed to assert or
obtain a claim for personal judgment against any other Borrower for all or any
part of the Indebtedness; (ii) make any effort at collection or enforcement of
all or any part of the Obligations from any Borrower; (iii) foreclose against or
seek to realize upon any security now or hereafter existing for all or any part
of the Indebtedness; (iv) file suit or proceed to obtain or assert a claim for
personal judgment against any Borrower or any guarantor or other party liable
for all or any party of the Indebtedness; (v) exercise or assert any other right
or remedy to which the Agent or any Lender is or may be entitled in connection
with the Obligations or any security or guaranty relating thereto to assert; or
(vi) file any claim against assets of one Borrower before or as a condition of
enforcing the liability of any other Borrower under this Agreement or the Loan
Documents.
Without limiting the foregoing in any way, each Borrower hereby irrevocably
waives and releases:
(a) Any and all rights it may have at any time (whether arising
directly or indirectly, by operation of law, contract or otherwise) to require
the marshaling of any assets of any Borrower, which right of marshaling might
otherwise arise from any such payments made or Obligations performed;
(b) Until such time as the Obligations have been satisfied in full,
any and all rights that would result in such Borrower being deemed a "Creditor"
under the United States Bankruptcy Code of any other Borrower or any other
person, on account of payments made or Obligations performed by such Borrower;
and
(c) Until such time as the Obligations have been satisfied in full,
any claim, right or remedy which it may now have or hereafter acquire against
any other Borrower that arises hereunder and/or from the performance by it
hereunder including, without limitation, any claim, remedy or right of
subrogation, reimbursement, exoneration, contribution, indemnification or
participation in any claim, right or remedy of the Agent or any Lender against
any other Borrower or any collateral security which the Agent or any Lender now
has or may hereafter acquire, whether or not such claim, right or remedy arises
in equity, under contract, by statute, under common law or otherwise."
13.11 Interest Rate Limitation. Notwithstanding anything herein or in the
Note to the contrary, if at any time the applicable interest rate, together with
all fees and charges which are treated as interest under applicable law
(collectively the "Charges"), as provided for herein or in any other document
executed in connection herewith, or otherwise contracted for, charged, received,
taken or reserved by the Agent or the Lenders, shall exceed the maximum lawful
rate (the "Maximum Rate") which may be contracted for, charged, taken, received
or reserved by the Agent or the Lenders in
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accordance with applicable law, the rate of interest payable under the Note,
together with all Charges payable to the Agent or the Lenders, shall be limited
to the Maximum Rate.
13.12 Entire Agreement. This Agreement and the other Loan Documents
constitute the entire contract between the parties relative to the subject
matter hereof. Any previous agreement among the parties with respect to the
subject matter hereof is superseded by this Agreement and the other Loan
Documents. Nothing in this Agreement or in the other Loan Documents, expressed
or implied, is intended to confer upon any party other than the parties hereto
and thereto any rights, remedies, obligations or liabilities under or by reason
of this Agreement or the other Loan Documents.
13.13 Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby. The parties shall endeavor in
good faith negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as close as
possible to that of the invalid, illegal or unenforceable provisions.
13.14 Counterparts. This Agreement may be executed in two or more
counterparts, all of which when taken together shall constitute but one
contract, and shall become effective as provided in Section 13.4.
13.15 Headings. Section headings and the Table of Contents used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Agreement.
13.16 Jurisdiction; Consent to Service of Process.
(a) Each Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of any Missouri state
court or the federal court for the Western District of Missouri, any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or the other Loan Documents or for recognition or enforcement
of any judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Missouri state or, to the extent
permitted by law, in such federal court. Each of the parties hereto agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that the Agent
or the Lenders may otherwise have to bring any action or proceeding relating to
this Agreement or the other Loan Documents against any Borrower or its
properties in the courts of any jurisdiction.
(b) Each Borrower and Borrower Agent hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection which it may now or hereafter have to the laying of venue of
any suit, action
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or proceeding arising out of or relating to this agreement or the other Loan
Documents in any Missouri state court or federal court for the Western District
of Missouri. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
13.17 Terms Generally. The definitions contained in this Agreement and in
Exhibit 1 hereto shall apply equally to both the singular and plural forms of
the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words "include,"
"includes" and "including" shall be deemed to be followed by the phrase "without
limitation." All references herein to Articles, Sections, Exhibits and Schedules
shall be deemed references to Articles and Sections of, and Exhibits and
Schedules to, this Agreement unless the context shall otherwise require. Except
as otherwise expressly provided herein, all terms of an accounting or financial
nature shall be construed in accordance with GAAP, as in effect from time to
time, provided, however, that, for purposes of determining compliance with any
covenant set forth in Article 9, such terms shall be construed in accordance
with GAAP as in effect on the date of this Agreement applied on a basis
consistent with the application used in preparing the Borrowers' financial
statements referred to in Article 9.
13.18 USA PATRIOT Act Notice. Each Lender that is subject to the USA
Patriot Act and the Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "US
Patriot Act"), it is required to obtain, verify and record information that
identifies each Borrower, which information includes the name and address of
each Borrower and other information that will allow such Lender or the Agent, as
applicable, to identify each Borrower in accordance with the Act.
13.19 ARBITRATION. EXCEPT AS SET OUT BELOW, ANY CONTROVERSY OR CLAIM
BETWEEN OR AMONG THE PARTIES HERETO, INCLUDING BUT NOT LIMITED TO THOSE ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED DOCUMENTS, INCLUDING ANY
CLAIM BASED ON OR ARISING FROM AN ALLEGED TORT (COLLECTIVELY, "CLAIM"), SHALL BE
DETERMINED BY BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT
(OR IF NOT APPLICABLE, THE APPLICABLE STATE LAW), THE RULES OF PRACTICE AND
PROCEDURE FOR THE ARBITRATION OF COMMERCIAL DISPUTES OF J.A.M.S./ ENDISPUTE OR
ANY SUCCESSOR THEREOF ("J.A.M.S."), AND THE "SPECIAL RULES" SET FORTH BELOW. IN
THE EVENT OF ANY INCONSISTENCY, THE SPECIAL RULES SHALL CONTROL. JUDGMENT UPON
ANY ARBITRATION AWARD MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. ANY PARTY
TO THIS AGREEMENT MAY BRING AN ACTION, INCLUDING A SUMMARY OR EXPEDITED
PROCEEDING, TO COMPEL ARBITRATION OF ANY CLAIM IN
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ANY COURT HAVING JURISDICTION OVER SUCH ACTION. THE INSTITUTION AND MAINTENANCE
OF AN ACTION FOR ANY JUDICIAL RELIEF SHALL NOT CONSTITUTE A WAIVER OF THE RIGHT
OF ANY PARTY, INCLUDING THE PLAINTIFF, TO SUBMIT THE CLAIM TO ARBITRATION IF ANY
OTHER PARTY CONTESTS SUCH ACTION FOR JUDICIAL RELIEF.
(a) SPECIAL RULES. ANY ARBITRATION SHALL BE CONDUCTED IN THE COUNTY OF
BORROWER'S DOMICILE AT THE TIME OF THE EXECUTION OF THIS AGREEMENT, OR IF THERE
IS REAL OR PERSONAL PROPERTY COLLATERAL, IN THE COUNTY WHERE SUCH REAL OR
PERSONAL PROPERTY IS LOCATED, AND ADMINISTERED BY J.A.M.S. WHO WILL APPOINT AN
ARBITRATOR; IF J.A.M.S. IS UNABLE OR LEGALLY PRECLUDED FROM ADMINISTERING THE
ARBITRATION, THEN THE AMERICAN ARBITRATION ASSOCIATION WILL SERVE. ALL
ARBITRATION HEARINGS WILL BE COMMENCED WITHIN 90 DAYS OF THE DEMAND FOR
ARBITRATION; FURTHER, THE ARBITRATION SHALL ONLY, UPON A SHOWING OF CAUSE, BE
PERMITTED TO EXTEND THE COMMENCEMENT OF SUCH HEARING FOR UP TO AN ADDITIONAL 60
DAYS. ANY DISPUTE CONCERNING THIS ARBITRATION PROVISION OR WHETHER A CLAIM IS
ARBITRABLE SHALL BE DETERMINED BY THE ARBITRATOR. THE ARBITRATOR SHALL HAVE THE
POWER TO AWARD LEGAL FEES PURSUANT TO THE TERMS OF THIS AGREEMENT.
(b) RESERVATION OF RIGHTS. NOTHING IN THIS ARBITRATION PROVISION SHALL
BE DEEMED TO (I) LIMIT THE APPLICABILITY OF ANY OTHERWISE APPLICABLE STATUTES OF
LIMITATION OR REPOSE AND ANY WAIVERS CONTAINED IN THIS AGREEMENT; OR (II) BE A
WAIVER BY BANK OF THE PROTECTION AFFORDED TO IT BY 12 U.S.C. SEC. 91 OR ANY
SUBSTANTIALLY EQUIVALENT STATE LAW; OR (III) LIMIT THE RIGHT OF ANY PARTY HERETO
(A) TO EXERCISE SELF HELP REMEDIES SUCH AS (BUT NOT LIMITED TO) SETOFF, OR (B)
TO FORECLOSE AGAINST OR SELL ANY REAL OR PERSONAL PROPERTY OR COLLATERAL, OR (C)
TO OBTAIN FROM A COURT PROVISIONAL OR ANCILLARY REMEDIES SUCH AS (BUT NOT
LIMITED TO) INJUNCTIVE RELIEF, WRIT OF POSSESSION OR THE APPOINTMENT OF A
RECEIVER, ANY PARTY MAY EXERCISE SUCH SELF HELP RIGHTS, FORECLOSE OR SELL
COLLATERAL OR OBTAIN SUCH PROVISIONAL OR ANCILLARY REMEDIES BEFORE, DURING OR
AFTER THE PENDENCY OF ANY ARBITRATION PROCEEDING BROUGHT PURSUANT TO THIS
AGREEMENT. NONE OF THESE ACTIONS SHALL CONSTITUTE A WAIVER OF THE RIGHT OF ANY
PARTY, INCLUDING THE CLAIMANT IN ANY SUCH ACTION, TO ARBITRATE THE MERITS OF THE
CLAIM OCCASIONING RESORT TO SUCH REMEDIES OR PROCEDURES.
(c) WAIVER OF CERTAIN DAMAGES. THE PARTIES HERETO WAIVE ANY RIGHT OR
REMEDY EITHER MAY HAVE AGAINST THE OTHER TO RECOVER PUNITIVE OR EXEMPLARY
DAMAGES ARISING OUT
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OF ANY CLAIM WHETHER THE CLAIM IS RESOLVED BY ARBITRATION OR BY JUDICIAL ACTION.
ORAL AGREEMENTS OR COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT INCLUDING PROMISES TO EXTEND
OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT YOU (BORROWERS) AND
US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY AGREEMENTS WE
REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH IS THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
WE MAY LATER AGREE IN WRITING TO MODIFY IT.
THIS DOCUMENT, TOGETHER WITH OTHER WRITTEN AGREEMENTS BETWEEN BORROWERS
AND BANK OF AMERICA, N.A., IS THE FINAL EXPRESSION OF THE CREDIT
AGREEMENT BETWEEN SUCH PARTIES. THIS DOCUMENT MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR OR CONTEMPORANEOUS ORAL CREDIT AGREEMENTS OR PRIOR
WRITTEN CREDIT AGREEMENTS BETWEEN SUCH PARTIES RELATING TO THE SUBJECT
MATTER HEREOF. ANY ADDITIONAL TERMS OF THE CREDIT AGREEMENT BETWEEN SUCH
PARTIES ARE SET FORTH BELOW.
THERE ARE NO SUCH ORAL AGREEMENTS BETWEEN SUCH PARTIES.
[Remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement on the 25th
day of October, 2004, by their duly authorized officers, effective for all
purposes as of October 25, 2004.
THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE
ENFORCED BY THE PARTIES.
BORROWERS:
EURONET WORLDWIDE, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: EVP & CFO
----------------------------
PAYSPOT, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
EURONET USA, INC.,
an Arkansas corporation
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
PREPAID CONCEPTS, INC.,
a California corporation
By: /s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
----------------------------
Title: Vice President
----------------------------
S-1
CALL PROCESSING, INC.,
a Texas corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: President
----------------------------
AGENT AND LENDER
BANK OF AMERICA, N.A., a national
banking association
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Senior Vice President
----------------------------
S-2
EXHIBIT 1
DEFINITIONS
For purposes of said Credit Agreement, the following terms shall have
the meanings specified below:
"Acquired Company" is defined in Section 10.4(e) of this Agreement.
"Accrued Amount" is defined in Section 4.6(c) of this Agreement.
"Acquisition" shall mean any transaction, or any series of related
transactions, consummated after the date of this Agreement, by which any
Borrower (in one transaction or as the most recent transaction in a series of
transactions) (i) acquires any going business or all or substantially all of the
assets of any Person (including, in the case of a corporation, any division
thereof), whether through purchase of assets, merger or otherwise, (ii) directly
or indirectly acquires control of at least a majority (in number of votes) of
the securities of a corporation which have voting power for the election of
directors, or (iii) directly or indirectly acquires control of a majority
ownership interest in any partnership or joint venture.
"Affiliate" shall mean, when used with respect to a specified person,
another person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the person
specified and in any case shall include, when used with respect to any Borrower,
any joint venture in which such Borrower holds an equity interest.
"Agent" is defined in the preamble to this Agreement.
"Agreement" or "Credit Agreement" shall mean this Agreement, together
with all exhibits and schedules hereto, as it may be amended from time to time.
"Applicable Margin" is defined in Section 4.3 of this Agreement.
"Approved Fund" means any Fund that is administered or managed by (a) a
Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an
entity that administers or manages a Lender.
"Assets" shall mean all assets which, under GAAP, would appear as assets
on the balance sheet of the Borrowers.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an Eligible Assignee (with the consent of any party whose
consent is required by Section 13.5(b)), and accepted by the Agent, in form and
substance approved by the Agent.
E-1
"Availability Date" is defined in first paragraph of Article 6 of this
Agreement.
"Bank of America" is defined in the preamble to this Agreement.
"Billed Amount" is defined in Section 4.6(b) of this Agreement.
"Borrower" and "Borrowers" is defined in the preamble to this Agreement.
"Borrower Agent" is defined in Section 4.9 of this Agreement.
"Business Day" shall mean any day (other than a day which is a Saturday,
Sunday or legal holiday in the jurisdiction in which the Agent's principal
office is located) on which banks in the jurisdiction in which the Agent's
principal office is located are open for business.
"Capital Expenditures" shall mean, without duplication, (i) expenditures
(whether paid in cash or accrued as a liability) for fixed assets, tooling,
plant and equipment (including without limitation the incurrence of Capital
Lease Obligations), and (ii) any other expenditures that would be classified as
capital expenditures under GAAP. Capital Expenditures shall not include the
amount of consideration paid or any monetary obligation incurred in respect of
the purchase price for any Acquisition.
"Capital Lease Obligations" shall mean, as to any Person, the
obligations of such Person to pay rent or other amounts under a lease of (or
other agreement conveying the right to use) real or personal property which
obligations are required to be classified and accounted for as a capital lease
on a balance sheet of such Person under GAAP; and, for purposes of this
Agreement, the amount of such obligations shall be the capitalized amount
thereof, determined in accordance with GAAP.
"Cash Collateral Account" shall mean a demand deposit, money market or
other account established by Agent at such financial institution as Agent may
select in its discretion, which account shall be in Agent's name and subject to
Agent's Liens for the Pro Rata benefit of the Lenders.
"Cash Collateralize" is defined in Section 3.7 of this Agreement.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended by the Superfund Amendments
and Reauthorization Act of 1986.
"Charges" is defined in Section 13.11 of this Agreement.
"Closing Date" shall mean October 25, 2004.
"Code" shall mean the Internal Revenue Code of 1986, as the same may be
amended from time to time.
E-2
"Collateral" shall mean the any property of any Obligor that is subject
to a security interest of other Lien granted pursuant to the Pledge Agreements
or any other Loan Document.
"Commitment" shall mean the Revolving Credit Commitment.
"Compliance Certificate" is defined in Section 8.4(d) of this Agreement.
"Consolidated EBITDA," "Consolidated Fixed Charge Coverage Ratio," and
"Consolidated Funded Debt/EBITDA Ratio" are defined in Article 9 of this
Agreement.
"Control" shall mean the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of a
person, whether through the ownership of voting securities, by contract or
otherwise, and "Controlling" and "Controlled" shall have meanings correlative
thereto.
"Debtor Relief Laws" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"Default" shall mean any event or condition which upon notice, lapse of
time or both would constitute an Event of Default.
"Default Rate" shall mean a rate of interest per annum equal to three
percent (3.000%) plus the rate otherwise prevailing hereunder.
"Defaulting Lender" means any Lender that (a) has failed to fund any
portion of the Loans, participations in L/C Obligations required to be funded by
it hereunder within one Business Day of the date required to be funded by it
hereunder, (b) has otherwise failed to pay over to the Agent or any other Lender
any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless the subject of a good faith dispute, or (c) has been
deemed insolvent or become the subject of a bankruptcy or insolvency proceeding.
"Defined Benefit Pension Plan" shall mean any employee pension benefit
plan that is covered by Title IV of ERISA or subject to the minimum funding
standards under Section 412 of the Code as to which any Borrower may have any
liability.
"Designated Account" is defined in Section 4.6(a) of this Agreement.
"Disbursement Date" shall mean the date on which Agent makes a
disbursement of a Loan, which date shall be a Business Day.
"Dollars", "dollars" or "$" shall mean lawful money of the United States
of America.
E-3
"Due Date" is defined in Section 4.6(a) of this Agreement.
"EBITDA" shall mean, for any period, operating income plus depreciation
plus amortization plus interest income on restricted cash accounts plus, upon
the request of the Borrowers with the prior consent of the Agent, certain
one-time, non-cash charges included in operating income.
"EBITDAR" shall mean, for any period, operating income plus depreciation
plus amortization plus interest income on restricted cash accounts plus rent
plus, upon the request of the Borrowers with the prior consent of the Agent,
certain one-time, non-cash charges included in operating income.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Agent, and (ii) unless an Event of Default has occurred and
is continuing, the Borrower Agent (each such approval not to be unreasonably
withheld or delayed); provided that notwithstanding the foregoing, "Eligible
Assignee" shall not include the Borrowers or any of the Borrowers' Affiliates or
Subsidiaries.
"Environmental Laws" is defined in Section 7.4(b) of this Agreement.
"Environmental Lien" shall mean a Lien in favor of any Governmental
Authority or other Person for (a) any liability under Environmental Laws, or (b)
damages arising from, or costs incurred by such Governmental Authority in
response to, a release or threatened release of any toxic or hazardous waste or
substance into the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time.
"Euro Borrowers" is defined in the third recital to this Agreement.
"Euro Credit Agreement" is defined in the third recital to this
Agreement.
"Euros" shall mean lawful money of the European Union.
"Euronet Entities" shall mean Holding Company Borrower and each U.S.
Subsidiary and Foreign Subsidiary of Holding Company Borrower and each U.S.
Subsidiary and Foreign Subsidiary of each such subsidiary.
"Event of Default" is defined in Article 11 of this Agreement.
"Existing Letters of Credit" shall mean the "Letters of Credit" (as
defined in the Original Credit Agreement) outstanding on the Closing Date.
"Fee Letter" shall mean that certain Fee Letter, dated as of the date
hereof, among the Borrowers and the Agent.
E-4
"Fees" shall mean the unused commitment and Letter of Credit fees
payable under Article 5 of this Agreement.
"Federal Funds Rate" shall mean for any period, a fluctuating interest
rate per annum equal for each date during such period to the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) in New
York, New York by the Federal Reserve Bank of New York, or if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by Agent from 3 federal funds brokers
of recognized standing selected by Agent.
"Foreign Lender" means any Lender that is organized under the laws of a
jurisdiction other than that in which the Borrower Agent is resident for tax
purposes. For purposes of this definition, the United States, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" shall mean a subsidiary of any Person not organized
and existing under the laws of the United States of America or any state
thereof.
"Fund" means any Person (other than a natural person) that is (or will
be) engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Funded Debt" is defined in Section 9.1 of this Agreement.
"GAAP" shall mean generally accepted accounting principles, applied on a
consistent basis.
"Governmental Authority" shall mean any federal, state, local or foreign
court or governmental agency, board, authority, instrumentality or regulatory
body.
"Guarantee" or "Guaranty" of a Person shall mean any agreement by which
such Person assumes, guarantees, endorses, contingently agrees to purchase or
provide funds for the payment of, or otherwise becomes liable upon, the
obligation of any other Person, or agrees to maintain the net worth or working
capital or other financial condition of any other Person or otherwise assures
any creditor of such other Person against loss, including, without limitation,
any comfort letter, operating agreement or take-or-pay contract and shall
include, without limitation, the contingent liability of such person in
connection with any application for a letter of credit. The term "Guarantee"
used as a verb has a corresponding meaning.
"Hazardous Materials" is defined in Section 7.4(b) of this Agreement.
"Hedging Agreement" - shall mean any Interest Rate Contract, foreign
currency exchange agreement, commodity price protection agreement or other
interest or currency
E-5
exchange rate or commodity price hedging arrangement at any time entered into by
any or all Borrowers with any Lender (or any Affiliate of any Lender) or Agent.
"Holding Company Borrower" is defined in the preamble of this Agreement.
"Honor Date" is defined in Section 3.3 of this Agreement.
"Indebtedness" shall mean, as to any Person, on a consolidated basis
with such Person's subsidiaries (unless otherwise specified), without
duplication: (i) all obligations of such Person for borrowed money or evidenced
by bonds, debentures, notes or similar instruments (including all indebtedness
to stockholders, howsoever evidenced), (ii) all obligations of such Person for
the deferred purchase price of property or services, except trade accounts
payable and accrued liabilities arising in the ordinary course of business which
are not overdue by more than sixty (60) days or which are being contested in
good faith by appropriate proceedings, (iii) all Capital Lease Obligations of
such Person, (iv) all Indebtedness of others secured by a Lien on any
properties, assets or revenues of such Person to the extent of the value of the
property subject to such Lien, (v) all Indebtedness of others Guaranteed by such
Person and (vi) all obligations of such Person, contingent or otherwise, in
respect of any letters of credit or bankers' acceptances, unless such letters of
credit or banker's acceptances are fully secured by cash. The Indebtedness of
any Person shall include the Indebtedness of any partnership in which such
Person is a general partner.
"Indemnified Claims" is defined in Section 13.6 of this Agreement.
"Indemnitee" is defined in Section 13.6(b) of this Agreement.
"Interest Period" shall mean, with respect to any LIBOR Rate Loan, each
period commencing on the date such Loan is made or is converted from a Prime
Rate Loan type or the last day of the next preceding Interest Period for such
Loan, and ending on the numerically corresponding day in the first, second or
third calendar month thereafter, as a Borrower (or Borrower Agent on behalf of a
Borrower) may select, except that each Interest Period which commences on the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (i) any Interest Period for any Loan which would
otherwise extend beyond the Revolving Credit Termination Date shall end on the
Revolving Credit Termination Date; (ii) each Interest Period that would
otherwise end on a day which is not a Business Day shall end on the immediately
succeeding Business Day (or, if such next succeeding Business Day falls in the
next succeeding calendar month, on the immediately preceding Business Day); and
(iii) a Borrower (or Borrower Agent on behalf of a Borrower) shall select the
duration of Interest Periods in such a way so that notwithstanding clauses (i)
and (ii) above, no Interest Period shall have a duration of less than one month
(and, if any LIBOR Rate Loans would otherwise have an Interest Period of a
shorter duration, they shall be Prime Rate Loans for the relevant period).
E-6
"Interest Rate Contract" shall mean any interest rate agreement,
interest rate collar agreement, interest rate swap agreement, or other agreement
or arrangement at any time entered into by any or all Borrowers with any Lender
(or any Affiliate of a Lender or Agent) that is designed to protect against
fluctuations in interest rates.
"ISP" means, with respect to any Letter of Credit, the "International
Standby Practices 1998" published by the Institute of International Banking Law
& Practice (or such later version thereof as may be in effect at the time of
issuance).
"Issuer Documents" means with respect to any Letter of Credit, the
Letter Credit Application, and any other document, agreement and instrument
entered into by the L/C Issuer and the Borrowers (or any Subsidiary) or in favor
the L/C Issuer and relating to any such Letter of Credit.
"Investments" is defined in Section 10.9 of this Agreement.
"L/C Advance" means, with respect to each Lender, such Lender's funding
of its participation in any L/C Borrowing in accordance with its Pro Rata Share.
"L/C Borrowing" means an extension of credit resulting from a drawing
under any Letter of Credit which has not been reimbursed on the date when made
or refinanced as a Loan.
"L/C Credit Extension" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the increase of the
amount thereof.
"L/C Issuer" means Bank of America in its capacity as issuer of Letters
of Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C Obligations" means, as at any date of determination, the aggregate
amount available to be drawn under all outstanding Letters of Credit plus the
aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For
purposes of computing the amount available to be drawn under any Letter of
Credit, the amount of such Letter of Credit shall be determined in accordance
with Section 3.12. For all purposes of this Agreement, if on any date of
determination a Letter of Credit has expired by its terms but any amount may
still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP,
such Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" and "Lenders" is defined in the preamble to this Agreement.
"Letter of Credit" means any standby letter of credit issued hereunder
and shall include the Existing Letters of Credit.
"Letter of Credit Application" means an application and agreement for
the issuance or amendment of a Letter of Credit in the form from time to time in
use by the L/C Issuer.
E-7
"Letter of Credit Expiration Date" means the day that is seven days
prior to the Revolving Credit Termination Date then in effect (or, if such day
is not a Business Day, the next preceding Business Day).
"Lien" shall mean, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, encumbrance, charge or security interest in or on such
asset, (b) the interest of a vendor or a lessor under any conditional sale
agreement, capital lease or title retention agreement relating to such asset,
and (c) in the case of securities, any purchase option, call, restriction on
right to sell or similar right of a third party with respect to such securities.
"LIBOR Rate" shall mean, for any Interest Period with respect to a LIBOR
Rate Loan, the rate per annum equal to the British Bankers Association LIBOR
Rate ("BBA LIBOR"), as published by Telerate (or other commercially available
source providing quotations of BBA LIBOR as designated by the Agent from time to
time) at approximately 11:00 a.m., London time, the first day of such Interest
Period, for sterling deposits with a term equivalent to such Interest Period. If
such rate is not available at such time for any reason, then the "LIBOR Rate"
for such Interest Period shall be the rate per annum determined by the Agent to
be the rate at which deposits in Euros for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the LIBOR Rate
Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America's London
Branch to major banks in the London interbank market at their request at
approximately 11:00 a.m. (London time) on the first day of the commencement of
such Interest Period.
"LIBOR Rate Loan" shall mean a Loan that accrues interest at the LIBOR
Rate.
"Loan" shall mean any Revolving Loan or any advance under this
Agreement, and "Loans" shall mean all Revolving Loans and advances thereunder
collectively.
"Loan Request" is defined in Section 4.8 of this Agreement.
"Loan Documents" shall mean, collectively, this Agreement, the Revolving
Notes, the Fee Letter, the Pledge Agreements and all other documents, agreements
and instruments executed by any Borrower in favor of the Agent of any Lender in
connection with the transactions contemplated by this Agreement.
"Material Contracts" is defined in Section 7.10 of this Agreement.
"Maximum Rate" is defined in Section 13.11 of this Agreement.
"Mobile Network Trust Arrangement" shall mean (i) the arrangements,
whether registered or unregistered, between e-Pay Limited, the Law Debenture
Trust Corporation plc and certain mobile telephone networks in the United
Kingdom, including Orange, Vodafone, O2, Virgin Mobile and T-Mobile pursuant to
which e-pay Limited collects fees for mobile telephone top-ups, holds cash and
accounts for, and distributes
E-8
cash amounts to, such networks and itself; (ii) any other similar arrangements
entered into from time to time.
"Non-Consenting Lender" is defined in Section 13.9 of this Agreement.
"Notes" shall mean the Revolving Notes.
"Obligations" shall mean all unpaid principal of and accrued and unpaid
interest on the Revolving Notes, all accrued and unpaid Fees, and all other
obligations and liabilities of any Borrower to the Agent or any Lender now
existing or hereafter arising under the Loan Documents and any Hedging
Agreements, including, without limitation, all renewals, replacements,
extensions and modifications thereof and thereto and any and all draws under any
and all Letters of Credit and any other letters of credit issued by the L/C
Issuer for the account of any Borrower.
"Obligor" shall mean each Borrower and each direct or indirect
Subsidiary of any Borrower which is a party to a Pledge Agreement.
"Participants" is defined in Section 13.5(d) of this Agreement.
"PBGC" shall mean the Pension Benefit Guarantee Corporation referred to
and defined in ERISA.
"Person" or "person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership or government,
or any agency or political subdivision thereof.
"Pledge Agreements" shall mean each pledge agreement, share charge or
similar agreement by which (i) Euronet Worldwide, Inc. pledges 100% of its
interest in any U.S. Subsidiary, in favor of the Agent, (ii) PaySpot, Inc.
pledges 100% of its interest in any U.S. Subsidiary, in favor of the Agent,
(iii) Euronet Worldwide, Inc. pledges 65% of its interest in EFT Services
Holdings B.V. in favor of the Agent, and any other pledge agreement, share
charge or similar agreement entered into by any Borrower or other Obligor in
favor of the Agent as required from time to time in accordance with the terms
and conditions of this Agreement, in each case as such documents may be amended,
supplemented or otherwise modified from time to time.
"Prime Rate" shall mean, at any date, the rate of interest per annum
then most recently established by Bank of America as its "prime rate," it being
understood and agreed that such rate is set by the Bank of America as a general
reference rate of interest, taking into account such factors as the Bank of
America may deem appropriate, that it is not necessarily the lowest or best rate
actually charged to any customer or a favored rate, that it may not correspond
with future increases or decreases in interest rates charged by other lenders or
market rates in general, and that the Bank of America may make various business
or other loans at rates of interest having no relationship to such rate.
"Prime Rate Loan" shall mean a Loan that accrues interest at the Prime
Rate.
E-9
"Pro Rata" shall mean a share of or in all Revolving Loans,
participations in LC Outstandings, liabilities, payments, proceeds, collections,
Collateral and, which share for any Lender on any date shall be a percentage
(expressed as a decimal, rounded to the ninth decimal place) arrived at by
dividing the amount of the Revolving Credit Commitment of such Lender on such
date by the aggregate amount of all of the Revolving Credit Commitments of all
Lenders on such date.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time.
"Register" is defined in Section 13.5(c) of this Agreement.
"Regulation T, U or X" shall mean Regulation T, U or X, respectively, of
the Board of Governors of the Federal Reserve System as from time to time in
effect and all official rulings and interpretations thereunder or thereof.
"Regulatory Change" shall mean, with respect to the Agent or any Lender,
any change after the date of this Agreement in United States federal or state
law or regulations, or the entry, adoption, or making after such date of any
order, interpretation, directive, or request of or under any United States
federal or state law or regulations (whether or not having the force of law) by
any court or governmental or monetary authority charged with the interpretation
or administration thereof, applying to a class of banks including Agent or any
Lender.
"Related Parties" is defined in Section 3.6 of this Agreement.
"Reportable Event" shall mean any reportable event, as defined in
Section 4043 of ERISA and the regulations issued under such Section, with
respect to a Defined Benefit Pension Plan, excluding, however, such events as to
which the PBGC by regulation has waived the requirement of Section 4043(a) of
ERISA that it be notified within 30 days of the occurrence of such event;
provided that a failure to meet the minimum funding standard of Section 412 of
the Code and of Section 302 of ERISA involving an amount aggregating $50,000 or
more shall be a Reportable Event regardless of the issuance of any waiver in
accordance with Section 412(d) of the Code.
"Required Lenders" shall mean at any date of determination thereof,
Lenders having Revolving Credit Commitments representing at least 51% of the
aggregate Revolving Credit Commitments at such time; provided, however, that if
any Lender shall be in breach of any of its obligations hereunder to Borrowers
or Agent, including any breach resulting from its failure to honor its Revolving
Credit Commitment in accordance with the terms of this Agreement, then, for so
long as such breach continues, the term "Required Lenders" shall mean Lenders
(excluding each Lender that is in breach of its obligations under the Agreement)
having Revolving Credit Commitments representing at least 51% of the aggregate
Revolving Credit Commitments (excluding the Revolving Credit Commitments of each
Lender that is in breach of its obligations under the Agreement) at such time;
provided further, however, that if the Commitments have been terminated, the
term "Required Lenders" shall mean Lenders (excluding each Lender
E-10
that is in breach of its obligations hereunder) holding Revolving Loans
representing at least 51% of the aggregate principal amount of all Revolving
Loans outstanding at such time.
"Revolving Credit Commitment" shall mean the aggregate Revolving Credit
Commitments of each Lender set forth on Schedule E-1 or such amount reduced as
provided in Section 2.1(a) of this Agreement.
"Revolving Credit Termination Date" shall mean October 25, 2006 or such
other date as may be agreed to by Agent, the Required Lenders the Borrower Agent
and the Borrowers from time to time; provided that no Lender shall be required
to extend its Commitment without such Lender's consent.
"Revolving Loan" is defined in Section 2.1 of this Agreement.
"Revolving Notes" is defined in Section 2.2 of this Agreement.
"SEC" is defined in Section 8.4(e) of this Agreement.
"Senior Notes" is defined in Section 7.15 of this Agreement.
"subsidiary" shall mean, with respect to any person (herein referred to
as the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than fifty percent (50%) of the equity or more than fifty percent (50%) of the
voting power or more than fifty percent (50%) of the general partnership
interests are, at the time any determination is being made, owned, controlled or
held by the parent, or (b) which is, at the time any determination is made,
otherwise Controlled by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" shall mean any subsidiary of any Borrower, direct or
indirect, now existing or hereafter acquired or created, whether a U.S.
Subsidiary or a Foreign Subsidiary.
"Tax" shall mean any tax, levy, impost, duty or other charge or
withholding of a similar nature (including any penalty or interest payable in
connection with any failure to pay or any delay in paying any of the same).
"Tax Deduction" shall mean a deduction or withholding for or on account
of a Tax from a payment under a Loan Document or a Hedging Agreement.
"U.S. Subsidiary" shall mean a subsidiary of any Person organized and
existing under the laws of the United States of America or any state thereof.
"U.S. Subsidiary Borrowers" shall mean each Borrower at any time a party
to this Agreement except Holding Company Borrower.
"Unreimbursed Amount" is defined in Section 3.3 of this Agreement.
E-11
Schedule E-1
Revolving Credit Commitments
------------------------------ ---------------------------------------
Lender Revolving Credit Commitment
------------------------------ ---------------------------------------
Bank of America, N.A. $10,000,000
------------------------------ ---------------------------------------
E-12
Exhibit 2.2
Revolving Note
E-2.2-1
Exhibit 4.8-A
Notice of Borrowing, Prepayment or
Termination of Commitment
E-4.8-A-1
Exhibit 4.8-B
Notice of Continuation or Conversion
E-4.8-B-1
Exhibit 8.4
Compliance Certificate
E-8.4-1
Exhibit 13.2
Supplemental to Credit Agreement
E-13.2-1
Schedule 7.4
Environmental Matters
None.
S-7.4-1
Schedule 7.5
Financial Statements
S-7.5-1
Schedule 7.8
Corporate Structure
S-7.8-1
Schedule 10.1
Existing Indebtedness
S-10.1-1
Schedule 10.2
Existing Liens
S-10.2-1
Schedule 10.9
Loans, Advances and Investments
S-10.9-1
