1
EXHIBIT 10.1
[NBD LOGO] CREDIT AUTHORIZATION AGREEMENT
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NBD Bank (the "Bank"), 000 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, has
approved the credit facilities listed below (collectively, the "Credit
Facilities," and, individually, as designated below) to:
Syntel, Inc. (the "Borrower"),
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(Borrower's Name)
0000 Xxxxxx Xxxx, Xxxxx 000, Xxxx, XX 00000
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(Borrower's Name)
subject to the terms and conditions set forth in this agreement.
1.0 CREDIT FACILITIES. (Check and complete applicable sections)
1.1 UNCOMMITTED CREDIT AUTHORIZATIONS. The Bank has approved the
uncommitted credit authorization listed below (collectively, the "Credit
Authorizations," and, individually, as designated below) subject to the terms
and conditions of this agreement and the Bank's continuing satisfaction with
the Borrower's financial status. Disbursements under the Credit Authorizations
are solely at the Bank's discretion. Any disbursement on one or more occasions
shall not commit the Bank to make any subsequent disbursement.
/ / A. FACILITY A. The Bank has approved an uncommitted Credit
Authorization to the Borrower in the principal sum not to exceed
$____________________ in the aggregate at any one time outstanding
("Facility A"). Credit under Facility A shall be in the form of
disbursements evidenced by credits to the Borrower's accounts and shall
be repayable as set forth in a Master Demand Note executed
concurrently (referred to in this agreement both singularly and
together with any other promissory notes referenced in this Section 1
as the "Notes"). The proceeds of Facility A shall be used for the
following purpose:__________________________________________, Facility
A shall expire on __________________________________, 199__ unless
earlier withdrawn.
/X/ B. FACILITY B (INCLUDING LETTERS OF CREDIT). The Bank has approved an
uncommitted Credit Authorization to the Borrower in the principal sum
not to exceed $15,000,000.00 in the aggregate at any one time
outstanding ("Facility B"). Facility B shall include the issuance of
[commercial/standby] letters of credit not exceeding $750,000.00 in
the aggregate at any one time outstanding, expiring not later than
April 14, 1998 [which shall include time drafts expiring not later
than ** *** ** *** *** *** **, 199 __] (the "Letters of Credit").
(Strike bracketed words if inapplicable.) Each Letter of Credit shall
be in form acceptable to the Bank and shall bear a fee of 1% per year
of the face amount of each standby Letter of Credit plus an issuance
fee of $150.00 upon issuance of each Letter of Credit. (If no fee is
listed, the Letter of Credit shall bear a fee to be agreed upon by
the Bank and the Borrower). Credit under Facility B shall be in the
form of disbursements evidenced by credits to the Borrower's account
and shall be repayable as set forth in a Master Demand Note executed
concurrently (referred to in this agreement both singularly and
together with any other promissory notes referenced in this Section 1
as the "Notes") or by issuance of a Letter of Credit upon completion
of an application acceptable to the Bank. The proceeds of Facility B
shall be used for the following purpose: working capital. Facility B
shall expire on August 31, 1997 unless earlier withdrawn.
/X/ C. FACILITY C (PURCHASE MONEY TERM LOANS). The Bank has approved an
uncommitted credit authorization to the Borrower in the principal sum
not to exceed $10,000,000.00 in the aggregate at any one time
outstanding ("Facility C"). Facility C shall be in the form of loans
evidenced by the Borrower's notes on the Bank's form (referred to in
this agreement both singularly and together with any other promissory
notes referenced in this Section I as the "Notes"), the proceeds of
which shall be used to purchase the following: acquisition of
companies. Interest on each loan shall accrue at a rate to be agreed
upon by the Bank and the Borrower at the time the loan is made. The
maturity of each note shall note shall not exceed 18 months from the
note date. Facility C shall expire on August 31, 1997 unless earlier
withdrawn.
/ / 1.2 TERM LOANS. The Bank agrees to extend credit to the Borrower in
the form of term loans(s) (whether one or more, the "Term Loans") in
the principal sum(s) of ____________________________________________
respectively, bearing interest and payable as set forth in the Term
Note(s) executed concurrently (referred to in this agreement both
singularly and together with any other promissory notes referenced in
this Section 1 as the "Notes"). The proceeds of the Term Loans shall
be used for the following purpose: ___________________________________
_____________________________________________________________________ .
2.0 CONDITIONS PRECEDENT.
2.1 CONDITIONS PRECEDENT TO INITIAL EXTENSION OF CREDIT. Before the
first extension of credit under this agreement, whether by disbursement
of a loan, issuance of a letter of credit, or otherwise, the Borrower
shall deliver to the Bank, in form and substance satisfactory to the Bank:
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A. LOAN DOCUMENTS. The Notes; the letter of credit applications required by
Section 1.2; the security agreements, financing statements, mortgages and other
documents required by Section 5.1; the guaranties required by Section 6.0; the
subordination agreements required by Section 7.0; and any other loan documents
which the Bank may resonably require to give effect to the transactions
contemplated by this agreement;
B. EVIDENCE OF DUE ORGANIZATION AND GOOD STANDING. Evidence satisfactory to
the Bank of the due organization and good standing of the Borrower and every
other business entity that is a party to this agreement or any other loan
doucment required by this agreement; and
C. EVIDENCE OF AUTHORITY TO ENTER INTO LOAN DOUCMENTS. Evidence satisfactory
to the Bank that (i) each party to this agreement or any other loan document
required by this agreement is authorized to enter into the transactions
contemplated by this agreement and the other loan documents, and (ii) the
person signing on behalf of each such party is authorized to do so.
2.2 CONDITIONS PRECEDENT TO EACH EXTENSION OF CREDIT. Before any extension of
credit under this agreement, whether by disbursement of a loan, issuance of a
letter of credit, or otherwise, the following conditions shall have been
satisfied:
A. REPRESENTATIONS. The representations contained in Section 10 shall be true
on and as of the date of the extension of credit;
B. NO EVENT OF ACCELERATION. No event of acceleration shall have occurred and
be continuing or would result from the extension of credit.
C. CONTINUED SATISFACTION. The Bank shall have remained satisfied with the
Borrower's managerial and financial status;
D. ADDITIONAL APPROVALS, OPINIONS, AND DOCUMENTS. The Bank shall have
received such other approvals, opinions and documents as it may reasonably
request; and
E. OTHER CONDITIONS. For Facility C. satisfactory receipt and review of
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acquisition candidate financial statements and borrower's pro forma verifying
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covenant complian
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3.0 BORROWING BASE/ANNUAL PAY DOWN.
3.1 BORROWING BASE. (complete if applicable) Notwithstanding any other
provision of this agreement, the aggregate principal amount outstanding at any
one time under (check applicable clauses)
[ ] Facility A
[X] Facility B
shall not exceed the lesser of the Borrowing Base or $ 15,000,000.00 .
Borrowing Base means: ----------------
(Check and complete applicable clauses)
[X] A. 75% of the Borrower's trade accounts receivable in which the Bank has
a perfected, first priority, security interest, excluding accounts more than 90
days past due from the date of invoice, accounts subject to offset or defense,
government, bonded, affiliate and foreign accounts, and accounts otherwise
unacceptable to the Bank, plus
[ ] B. Inventory of the Borrower in which the Bank has a perfected, first
priority, security interest, valued at the lower of cost or market, but not
exceeding $_______________ in aggregate, as follows:
[] (1)___________% of aggregate inventory; or
[] (1)___________% of raw material inventory; and
[] (2)___________% of work-in-process inventory; and
[] (3)___________% of finished goods inventory, plus
[ ] C. ____% of the ________ value of the Borrower's machinery and equipment
in which the Bank has a perfected, first priority, security interest, but
not exceeding $_________________, plus
[ ] D. Additional Borrowing Base provisions are contained in the attached
addedum.
3.2 ANNUAL PAY DOWN. (complete if applicable) Notwithstanding any other
provision of this agreement, there shall be no debt outstanding
under ___________________________________for a period of ______________________
(Facility A, Facility B, etc.)
consecutive months during each fiscal year of the Borrower.
4.0 FEES AND EXPENSES. (complete if applicable)
4.1 FEES. The Borrower shall pay the Bank the following fees, all of which
the Borrower acknowledges have been earned by the Bank: 1/4% of amounts
advanced under Facility C. ---------------
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4.2 OUT-OF POCKET EXPENSES. In addition to any fee set forth in Section 4.1
above, the Borrower shall reimburse the Bank for its out-of-pocket expenses and
reasonable attorney's fees (including the fees of in-house counsel) allocated
to the Credit Facilities.
5.0 SECURITY.
5.1 Payment of all amounts owing under the Credit Facilities shall be secured
by the Borrower's grant of a continuing first security interest and/or real
estate mortgage, as the case may be, covering its interest in the following
property and all its additions, substitutions, increments, proceeds and
products, present and future, whether now owned or later acquired. (the
"Collateral"):
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(check and complete applicable clauses)
[x] A. Accounts Receivable. All of the Borrower's accounts,
chattel paper, general intangibles, instruments, and documents (as those terms
are defined in the Uniform Commercial Code), rights to refunds of taxes paid at
any time to any governmental entity, and any letters of credit and drafts under
them given in support of the foregoing, wherever located. The Borrower shall
deliver to the Bank executed security agreements and financing statements in
form and substance satisfactory to the Bank.
[ ] B. Inventory. All of the Borrower's inventory, wherever
located. The Borrower shall deliver to the Bank executed security agreements
and financing statements in form and substance satisfactory to the Bank.
[ ] C. Equipment. All of the Borrower's equipment, wherever
located. The Borrower shall deliver to the Bank executed security agreements
and financing statements in form and substance satisfactory to the Bank.
[ ] D. Real Estate. The real property, including improvements,
located at __________________________________________________________________.
The Borrower shall deliver to the Bank an executed mortgage ALTA mortgage title
insurance policy without exceptions with mortgage survey certified to the Bank
and the title company, and, where applicable, an assignment of rents,
subordinations of leases and assignments of land contracts, all in form and
substance satisfactory to the Bank.
[ ] E. _________________________________________________________
_____________________________________________________________________________
5.2 No forbearance or extension of time granted any subsequent
owner of the Collateral shall release the Borrower from liability.
5.3 Additional Collateral/Setoff. To further secure payment of all
amounts owing under the Credit Facilities and all of the Borrower's other
liabilities to the Bank, the Borrower grants to the Bank a continuing security
interest in: (i) all securities and other property of the Borrower in the
custody, possession or control of the Bank (other than property held by the
Bank solely in a fiduciary capacity), and (ii) all balances of deposit accounts
of the Borrower with the Bank. The Bank shall have the right at any time to
apply its own debt or liability to the Borrower, or to any other party liable
for payment of the Credit Facilities, inn whole or partial payment of the
Credit Facilities or other present or future liabilities, without any
requirement of mutual maturity.
5.4 Cross Lien. Any of the Borrower's other property in which the
Bank has a security interest to secure payment of any other debt, whether
absolute, contingent, direct or indirect, including the Borrower's guaranties
of the debts of others, shall also secure payment of and be part of the
Collateral for the Credit Facilities.
6.0 Guaranties. (complete if applicable)
Payment of the Borrower's liabilities under the Credit Facilities shall
be guaranteed by______________________________________________________________,
by execution of the Bank's form of guaranty agreement. The liability of the
guarantors, if more than one, shall be joint and several.
7.0 Subordination. (complete if applicable)
The Credit Facilities shall be supported by the subordination of debt
owing from the Borrower to ___________________________________________________,
including without limitation debt currently owing in the amount of
$_____________________, in manner and by agreement satisfactory to the Bank.
8.0 Affirmative covenants. So long as any debt remains outstanding
under the Credit Facilities, the Borrower, and each of its subsidiaries, if
any, shall:
8.1 Insurance. Maintain insurance with financially sound and
reputable insurers covering its properties and business against those
casualties and contingencies and in the types and amounts as shall be in
accordance with sound business and industry practices.
8.2 Existence. Maintain its existence and business operations as
presently in effect in accordance with all applicable laws and regulations, pay
its debts and obligations when due under normal terms, and pay on or before
their due date all taxes, assessments, fees and other governmental monetary
obligations, except as they may be contested in good faith if they have been
properly reflected on its books and, at the Bank's request, adequate funds or
security has been pledged to insure payment.
8.3 Financial Records. Maintain proper books and records of
account, in accordance with generally accepted accounting principles where
applicable, and consistent with financial statements previously submitted to
the Bank.
8.4 Notice. Give prompt notice to the Bank of the occurance of (i)
any event of acceleration, and (ii) any other development, financial or
otherwise, which would affect the Borrower's business, properties or affairs in
a materially adverse manner.
8.5 Collateral Audits. (complete if applicable) Permit the Bank or
its agents to perform___________________________________________
(monthly, annual, etc.)
audits of the Collateral. The Borrower shall compensate the Bank for those
audits in accordance with the Bank's schedule of fees as may be amended from
time to time. Whether or not this section has been completed, the Bank shall
retain the right to inspect the Collateral and business records related to it
at such times and at such intervals as the Bank may reasonably require.
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8.6 MANAGEMENT, (complete if applicable) Maintain __________________________
as ____________________________________________________________________________.
8.7 FINANCIAL REPORTS. Furnish to the Bank whatever information, books and
records the Bank may reasonably request, including at a minimum: (Check and
complete applicable clauses. If the Borrower has subsidiaries, all financial
statements required will be provided on a consolidated and on a separate
basis.)
A. Within 45 days after each quarterly period, a balance sheet
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(Monthly/quarterly)
as of the end of that period and statements of income, retained earnings,
and cash flows from the beginning of that fiscal year to the end of that
period, certified as correct by one of its authorized agents.
B. Within 180 days after and as of the end of each of its fiscal
years, a detailed audit
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(audit/financial statement)
including a balance sheet and statements of income, retained earnings, and
cash flows certified
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(reviewed/compiled/certified)
by an independent certified public accountant of recognized standing.
C. Within 25 days after and as of the end of each calendar month, the
following lists, each certified as correct by one of its authorized agents:
/X/ (1) a list of accounts receivable, aged from date of
invoice;
/ / (2) a list of accounts payable, aged from date of
receipt;
/ / (3) a list of inventory, valued at the lower of cost or
market.
/ / D. Within _______ days after and as of the end of each calendar year,
the signed personal financial statement of ________________________________.
(Borrower/Guarantor/other)
E. Within 5 days after filing, a signed copy of the annual tax
return, with exhibits, of Syntel, Inc.
____________________________________________________________________________
(Borrower/Guarantor/other)
/ / F. An Environmental Certificate on the Bank's form on and as of due
of this agreement, and thereafter as required by the Environmental
Certificate.
/ / G. __________________________________________________________________
____________________________________________________________________________
___________________________________________________________________________.
9.0 NEGATIVE COVENANTS.
9.1 DEFINITIONS. As used in this agreement, the following terms have the
following respective meanings:
A. "Subordinated Debt" means debt subordinated to the Bank in manner and by
agreement satisfactory to the Bank.
B. "Tangible Net Worth" means total assets less intangible assets and total
liabilities. Intangible assets include goodwill, patents, copyrights,
mailing lists, catalogs, trademarks, bond discount and underwriting expenses,
organization expenses, and all other intangibles.
9.2 Unless otherwise noted, the financial requirements set forth in this
section shall be computed in accordance with generally accepted accounting
principles applied on a basis consistent with financial statements previously
submitted by the Borrower to the Bank.
9.3 Without the written consent of the Bank, so long as any debt remains
outstanding under the Credit Facilities, the Borrower shall not: (where
appropriate, covenants shall apply on a consolidated basis - clauses H0 apply
only if completed.)
A. DIVIDENDS. Acquire or retire any of its shares of capital stock, or
declare or pay dividends or make any other distributions upon any of its
shares of capital stock, except dividends payable in its capital stock, and
dividends payable to "Subchapter S" corporation shareholders, in amounts
sufficient to pay the shareholder(s) income tax obligations related to the
Borrower's taxable income.
B. SALE OF SHARES. Issue, sell or otherwise dispose of any shares of its
capital stock or other securities, or rights, warrants or options to purchase
or acquire any such shares or securities.
C. DEBT. Incur, or permit to remain outstanding, debt for borrowed money
or installment obligations, except debt reflected in the latest financial
statement of the Borrower furnished to the Bank prior to execution of this
agreement and not to be paid with proceeds of borrowings under the Credit
Facilities. For purposes of this covenant, the sale of any accounts
receivable shall be deemed the incurring of debt for borrowed money.
D. GUARANTIES. Guarantee or otherwise become or remain secondarily liable
on the undertaking of another, except for endorsement of drafts for deposit
and collection in the ordinary course of business.
E. LIENS. Create or permit to exist any of its property, real or
personal, except: existing liens known to the Bank; liens to the Bank; liens
incurred in the ordinary course of business securing current nondelinquent
liabilities for taxes, worker's compensation, unemployment insurance, social
security and pension liabilities; and liens for taxes being contested in
good faith.
F. ADVANCES AND INVESTMENTS. Purchase or acquire any securities of, or
make any loans or advances to, or investments in, any person, firm or
corporation, except obligations of the United States Government, open market
commercial paper rated one of the top two ratings by a rating agency of
recognized standing, or certificates of deposit in insured financial
institutions.
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G. USE OF PROCEEDS. Use, or permit any proceeds of the Credit
Facilities to be used, directly or indirectly, for the purpose of
"purchasing or carrying any margin stock" within the meaning of Federal
Reserve Board Regulation U. At the Banks request, the Borrower shall
furnish to the Bank a completed Federal Reserve Board Form U-1.
H. WORKING CAPITAL. Permit the difference between its current assets
[less all sums owing from stockholders, members or partners, as the case may
be, and from officers, managers and directors] and current liabilities [plus
all sums (other than Subordinated Debt) owing to stockholders, members or
partners, as the case may be, and to officers, managers and directors] to be
less than $____________________. (Strike bracketed words if not applicable.)
I. TANGIBLE NET WORTH [Plus Subordinated Debt]. Permit its Tangible
Net Worth to be less than $14,000,000.00. Increasing annually by 50% net
income after sub-s tax distributions.
J. CURRENT RATION. Permit the ratio of its current liabilities to be
less than __________________________________to 1.00.
K. LEVERAGE RATIO. Permit the ratio of its total liabilities to its
Tangible Net Worth to exceed 1.00 to 1.00. (Strike bracketed words if not
applicable).
L. FIXED ASSETS. Expend for, contract for, lease, rent, or otherwise
acquire fixed assets, of the expense to the Borrower, and all subsidiaries,
if any, shall exceed $___________________________ in the aggregate of any
one fiscal year.
M. LEASES. Contract for or assume in any manner, lease obligations if
the aggregate of all payments shall exceed $______________________ in any
one fiscal year.
N. COMPENSATION. Pay, or award compensation of any kind, in any one
fiscal year, to___________________________________exceeding $______________.
**(T/N/W defined as total assets less intangible assets, investments in
related entities, sums owing from stockholders, officers, directors, and
employees, less total liabilities).
10.0 REPRESENTATIONS BY BORROWER. Each Borrower represents that: (a) the
execution and delivery of this agreement and the Notes and the performance of
the obligations they impose do not violate any law, conflict with any agreement
by which it is bound, or require the consent or approval of any governmental
authority or any third party; (b) this agreement and the Notes are valid and
binding agreements, enforceable according to their terms; and (c) all balance
sheets, income statements, and other financial statements furnished to the Bank
are accurate and fairly reflect the financial condition of the organizations
and persons to which they apply on their effective dates, including contingent
liabilities of every type, which financial condition has not changed materially
and adversely since those dates. Each Borrower, if other than a natural
person, further represents that: (a) it is duly organized, existing and in good
standing under the laws of the jurisdiction under which it was organized; and
(b) the execution and delivery of this agreement and the Notes and the
performance of the obligations they impose (i) are within its powers; (ii) and
have been duly authorized by all necessary action of its governing body, and
(iii) do not contravene the terms of its articles of incorporation or
organization, its by laws, or any partnership, operating or other agreements
governing its affairs.
11.0 ACCELERATION.
11.1 EVENTS OF ACCELERATION. If any of the following events occur, the
Credit Facilities shall terminate and all borrowings under them shall become
due immediately, without notice, at the Bank's option, whether or not the Bank
has made demand.
A. The Borrower or any guarantor of any of the Credit Facilities
("Guarantor") fails to pay when due any amount payable under the Credit
Facilities or under any agreement or instrument evidencing debt to any
creditor.
B. The Borrower or any Guarantor (a) fails to observe or perform
any other term of this agreement or the Notes; (b) makes any materially
incorrect or misleading representation, warranty or certificate to the Bank;
(c) makes any materially incorrect or misleading representation in any
financial statement or other information delivered to the Bank; or (d)
defaults under the terms of any agreement or instrument relating to any debt
for borrowed money (other than borrowings under the Credit Facilities) such
that the creditor declares the debt due before its maturity.
C. There is a default under the terms of any loan agreement,
mortgage, security agreement or any other document executed as part of the
Credit Facilities, or any guaranty of the liabilities under the Credit
Facilities becomes unenforceable in whole or in part or any Guarantor fails to
promptly perform under its guaranty.
D. A "reportable event" (as defined in the Employee Retirement
Income Security Act of 1974 as amended) occurs that would permit the Pension
Benefit Guaranty Corporation to terminate any employee benefit plan of the
Borrower or any affiliate the Borrower.
E. The Borrower or any guarantor becomes insolvent or unable to pay
its debts as they become due.
F. The Borrower or any Guarantor (a) makes an assignment for the
benefit of creditors; (b) consents to the appointment of a custodian, receiver
or trustee for it or for a substantial part of its assets; or (c) commences any
proceeding under any bankruptcy, reorganization, liquidation or similar laws of
any jurisdiction.
G. A custodian, receiver or trustee is appointed for the Borrower or
any Guarantor or for a substantial part of its assets without its consent and
is not removed within 60 days after the appointment.
H. Proceedings are commenced against the Borrower or any Guarantor
under any bankruptcy, reorganization, liquidation, or similar laws of any
jurisdiction, and those proceedings remain undismissed for 60 days after
commencement; or the Borrower or Guarantor consents to the commencement of the
proceedings.
I. Any judgment is entered against the Borrower or any Guarantor, or
any attachment, levy or garnishment is issued against any property of the
Borrower or any Guarantor.
J. The Borrower or any Guarantor dies.
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K. The Borrower or any Guarantor, without the Bank's written
consent, (a) is dissolved, (b) merges or consolidates with any third party, (c)
leases, sells or otherwise conveys a material part of its assets or business
outside the ordinary course of business, (d) leases, purchases, or otherwise
aquires a material part of the assets of any other corporation or business
entity, except in the ordinary course of business, or (e) agrees to do any of
the foregoing (notwighstanding the foregoing, any subsidiary may merge or
consolidate with any other subsidiary, or with the Borrower, so long as the
Borrower is the survivor).
L. The loan-to-value ratio of any pledged securities at any
time exceeds ______%, and such excess continues for five (5) days after notice
from the Bank to the Borrower.
M. There is a substantial change in the existing or
prospective financial conditionof the Borrower or any Guarantor which the Bank
in good faith determines to be materially adverse.
N. The Bank in good faith shall deem itself insecure.
11.2 REMEDIES. If the amounts owing under the Credit Facilities are
not paid at maturity, whether by demand, acceleration, or otherwise, the Bank
shall have all of the rights and remedies provided by any law or agreement.
Any requirement of reasonable notice shall be met if the Bank sends the notice
to the borrower at least seven (7) days prior to the date of sale, disposition
or other event giving rise to the required notice. the Bank is authorized to
cause all or any part of the Collateral to be transferred to or registered in
its name or in the name of any other person, firm or corporation, with or
without designation of the capacity of such nominee. The Borrower shall be
liable for any deficiency remaining after disposition of any collateral. The
borrower is liable to the Bank for all reasonable costs and expenses of every
kind incurred in the making or collection of the Credit Facilities, including,
without limitation, reasonable attorneys' fees and court costs (whether
attributable to the Bank's in-house or outside counsel.) These costs and
expenses shall include, without limitation, any costs or expenses incurred by
SCHEDULE 3.02(l)(ii)
Union Contractsff
Carlisle, PA UNITE (formerly ACTWU)
Lewistown, PA UNITE (formerly ACTWU)
Carlisle, PA IUOE
Mississauga, Ont. UNITE (formerly ACTWU)
Organizing Attempts in past 5 years
Sidney, Ohio Teamsters (vote taken and turned down)
Lebanon, Ohio UAW and United Food and Commercial Workers Union
the Bank in any bankruptcy, reorganization, insolvency or other similar
proceeding.
12.0 MISCELLANEOUS.
12.1 Notice from one party to another relating to this agreement shall
be deemed effective if made in writing (including telecommunications) and
delivered to the recipient's address, telex number or fax number set forth
under its name below by any of the following means: (a) hand delivery, (b)
registered or certified mail, postage prepaid, with return receipt requested,
(c) first class or express mail, postage prepaid, (d) Federal Express, or like
overnight courier service, or (e) fax, telex or other wire transmission with
request for assurance of receipt in a manner typical with respect to
communication of that type. Notice made in accordance with this section shall
be deemed delivered upon receipt kf delivered by hand or wire transmission,
three (3) business days after mailing if mailed by first class, registered or
certified mail, or one business day after mailing or deposit with an overnight
courier service if delivered by express mail or overnight courier.
12.2 No delay on the part of the Bank in the execise of any right or
remedy shall operate as a waiver. No single or partial exercise by the bank of
any right or remedy shall preclude any other future exercise of it or the
exercise of any other right or remedy. No waiver or indulgence by the Bank of
any default shall be effective unless in writing and signed by the Bank, nor
shall a waiver on one occasion be construed as a bar to or waiver of that right
on any future occassion.
12.3 This agreement, the Notes, and any related loan doucments embody
the entire agreement and understanding between the Borrower and the Bank and
supersede all prior agreements and understandings relating to their subject
matter. If any one or more of the obligations of the Borrower under this
agreement or the Notes shall be invalid, illegal or uneforceable in any
jurisdiction, the validity, legality and enforceability of the remaining
obligations of the Borrower shall not in any way be affected or impaired, and
such validity, illegality or unenforceability in one jurisdiction shall not
affect the validity, legality or enforceability of the obligations of the
borrower under this agreement or the Notes in any other jurisdiction.
12.4 The Borrower, if more than one, shall be jointly and severally
liable.
12.5 This agreement is delivered in the State of Michigan and governed
by Michigan law. This agreement is binding on the Borrower and its successors,
and shall inure to the benefit of the Bank, its successors and assigns.
12.6 Section headings are for convenience of reference only and shall
not affect the interpretation of this agreement.
13.0 WAIVER OF JURY TRIAL. The Bank and Borrower, after consulting or
having had the opportunity to consult with counsel, knowingly, voluntarily and
intentionally waive any right either of them may have to a trial by jury in any
litigation based upon or arising out of this agreement or any related
instrument or agreement, or any of the transactions contemplated by this
agreement, or any course of conduct, dealing, statements (whether oral or
written), or actions of either of them. Neither the Bank nor the Borrower
shall seek to consolidate, by counterclaim or otherwise, any action in which a
jury trial has been waived with any other action in which a jury trial canot be
or has not been waived. These provisions shall not be deemed to have been
modified in any respect or relinquished by either the Bank or the Borrower
except by a written instrument executed by both of them.
Executed by the parties on: Sept. 13, 1996.
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(Date)
"BANK": "BORROWER":
NBD Bank Syntel, Inc.
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BY: XXXX XXX XXXXXXX BY: X
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Xxxx Xxx Xxxxxxx Xxxxxx Xxxxx, President
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ADDRESS FOR NOTICES: ADDRESS FOR NOTICE:
2155 W. Big Beaver 0000 Xxxxxx Xxxx, Xxxxx 000
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Xxxx, XX 00000 Xxxx, XX 00000-0000
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Fax/Telex No. 000-000-0000 Fax/Telex No.
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