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AMENDED AND RESTATED LOAN AGREEMENT
AMERICAN NATIONAL BANK
AND TRUST COMPANY OF CHICAGO
CREDIT FACILITY FOR
SPSS, INC.
DATED FOR REFERENCE PURPOSES ONLY AS OF
JUNE 1, 2000
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TABLE OF CONTENTS
PAGE
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1. DEFINITIONS AND TERMS......................................... 1
1.1. Definitions.......................................... 1
1.2. GAAP ................................................12
1.3. Borrower ............................................12
1.4. Rules of Construction................................12
2. LOANS - GENERAL TERMS.........................................13
2.1. Revolving Loan.......................................13
2.2. Maximum Principal Amount.............................14
2.3. Maturity Date; Termination of Loans..................14
2.4. Authorized Disbursement of Proceeds..................14
2.5. Borrowing Procedure..................................15
2.6. Interest Rate........................................15
2.7. Change of Laws.......................................15
2.8. Regulatory Changes...................................16
2.9. Advances Prior to LIBOR Rate Determination...........16
2.10. Eurodollar Advances and Conversion...................16
2.11. Interest Period Election.............................17
2.12. Libor Brokerage Fee..................................17
2.13. Usury ...............................................17
3. PAYMENT TERMS.................................................18
3.1. Loan Account; Method of Making Payments..............18
3.2. Interest Payments....................................18
3.3. Principal Payments...................................19
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3.4. Place of Payment.....................................19
3.5. Payment on Maturity and Prepayment...................19
3.6. Advances to Constitute One Loan......................20
3.7. Application of Payments and Collections..............20
3.8. Monthly Statements...................................20
4. LETTERS OF CREDIT.............................................21
4.1. Mechanics of Issuance................................21
4.2. Letter of Credit Fees................................22
4.3. Drawings and Reimbursement of Amounts Drawn Under
Letters of Credit...................................22
4.4. Interest on Amounts Drawn Under Letters of Credit....23
4.5. Obligations Absolute.................................23
4.6. Indemnification; Nature of Bank's Duties.............24
4.7. Increased Costs and Taxes Relating to Letters of
Credit..............................................25
4.8. Standard Letter of Credit Application................26
4.9. Unused Facility Fee..................................26
5. GENERAL WARRANTIES, REPRESENTATIONS AND COVENANTS.............26
5.1. General Representations and Warranties...............26
5.2. Reaffirmation of Warranties and Representations......33
5.3. Survival of Warranties and Representations...........34
6. COVENANTS AND CONTINUING AGREEMENTS...........................34
6.1. Financial Covenants..................................34
6.2. Affirmative Covenants................................34
6.3. Negative Covenants...................................38
6.4. Required Notices.....................................40
6.5. Payment of Claims....................................41
6.6. Year 2000 Compliance.................................42
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6.7. Public Offering......................................42
7. DEFAULT.......................................................43
7.1. Events of Default....................................43
7.2. Remedies Cumulative..................................45
7.3. Acceleration.........................................45
7.4. Remedies ............................................45
7.5. Injunctive Relief....................................45
7.6. Advances During Unmatured Default....................45
8. CONDITIONS PRECEDENT TO DISBURSEMENT..........................45
8.1. Checklist Items......................................45
8.2. Necessary Actions....................................46
8.3. Conditions Precedent.................................46
9. GENERAL.......................................................46
9.1. Compliance with ERISA................................46
9.2. Costs ...............................................47
9.3. Statement............................................47
9.4. Notices ............................................48
9.5. Amendments and Waivers...............................49
9.6. No Implied Waiver; Remedies Cumulative...............49
9.7. Severability.........................................49
9.8. Incorporation of Other Agreements....................50
9.9. Acceptance...........................................51
9.10. Knowledge............................................51
9.11. Waiver by Borrower...................................51
9.12. Governing Law........................................51
9.13. Waiver of Marshaling.................................52
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9.14. Limitation by Law....................................52
9.15. Survival of Representations and Warranties...........52
9.16. Service of Process...................................52
9.17. Representation by Counsel............................52
9.18. Release of Bank......................................53
9.19. Invalidated Payments.................................53
9.20. Designated Person....................................53
9.21. Headings ............................................53
9.22. Counterparts.........................................53
9.23. Fax Execution........................................53
9.24. No Third Party Beneficiaries.........................54
9.25. Domicile of Loans....................................54
9.26. Entire Agreement.....................................54
9.27. Construction.........................................54
9.28. Successors and Assigns...............................55
9.29. Waiver of Trial by Jury..............................55
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AMENDED AND RESTATED LOAN AGREEMENT
THIS AMENDED AND RESTATED LOAN AGREEMENT (this "AGREEMENT"), dated for
reference purposes only as of June 1, 2000 by and between American National Bank
and Trust Company of Chicago, ("BANK"), a national banking association with its
principal place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and
SPSS, Inc., a Delaware corporation ("BORROWER"), with its principal place of
business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
RECITALS:
A. Borrower has requested and Bank has agreed to provide Borrower with
two revolving credit facilities, described as follows: (i) a line of credit in
the maximum amount of $10,000,000 evidenced by that certain Loan Agreement dated
as of May 29, 1998, as amended June 1, 1999 by and between Borrower and Lender,
and (ii) an acquisition line of credit in the maximum amount of $10,000,000
evidenced by that certain Loan Agreement (Acquisition Line of Credit) dated as
of June 1, 1999 by and between Borrower and Lender (collectively, the "EXISTING
LOAN AGREEMENTS").
B. The parties deem it to be in their best interest to amend, restate
and consolidate the Existing Loan Agreements.
NOW THEREFORE, in consideration of any loan, advance, extension of credit
and/or other financial accommodation at any time made by Bank to or for the
benefit of Borrower, and of the promises set forth herein, the parties hereto
amend, restate and consolidate the Existing Loan Agreements and hereby agree as
follows:
1. DEFINITIONS AND TERMS.
1.1 Definitions. In addition to terms defined elsewhere in this
Agreement, the following words, terms and/or phrases shall have the meanings set
forth thereafter and such meanings shall be applicable to the singular and
plural form thereof, giving effect to the numerical difference.
(a) "ADVANCE": any loan of monies made by Bank to Borrower
pursuant to the terms of Section 2.1.
(b) "ADVANCE DATE": with respect to each Advance, the Business
Day upon which the proceeds of such Advance are to made available to
Borrower.
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(c) "AFFILIATE": any Person (i) in which Borrower, one or more
equity interest holders owning twenty-five percent (25%) or
more of the total equity interest of Borrower, any Subsidiary, and/or
any Parent, individually, jointly and/or severally, now or at any time
or times hereafter, has or have an equity or other ownership interest
equal to or in excess of twenty-five percent (25%) of the total equity
of or other ownership interest in such Person; and/or (ii) which
directly or indirectly through one or more intermediaries controls or
is controlled by, or is under common control with Borrower; and/or
(iii) any officer or director of Borrower or any Subsidiary. For
purposes of this definition, "CONTROL" shall mean the possession,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of a Person, whether through the
ownership of Stock, by contract or otherwise, and in any case shall
include direct or indirect ownership (beneficially or of record) of, or
direct or indirect power to vote, 25% or more of the outstanding shares
of any class of capital stock of such Person (or in the case of a
Person that is not a corporation, 25% or more of any class of equity
interest).
(d) "AGREEMENT": this Amended and Restated Loan Agreement,
together with all amendments, modifications, extensions, supplements,
restatements replacements and extensions hereto or hereof.
(e) "AND/OR": one or the other or both, or any one or more or
all, of the things or Persons in connection with which the conjunction is
used.
(f) "ASSETS": any and all real, personal and intangible property
of a Person, including, without limitation, accounts, chattel paper,
contract rights, letters of credit, instruments and documents, equipment,
general intangibles, inventory, leases, options, licenses, and real
property, whether now existing or hereafter acquired or arising.
(g) "BANK": American National Bank and Trust Company of Chicago,
a national banking association, and its successors and assigns.
(h) "BORROWER": SPSS, Inc., a Delaware corporation, and its
permitted successors and assigns.
(i) "BORROWER'S LIABILITIES": all obligations and liabilities of
Borrower to Bank under the terms of this Agreement and the other Loan
Documents, and all extensions and renewals or refinancing thereof, whether
such obligation or liability is direct or indirect, secured or unsecured,
joint or several, absolute or contingent, due or to become due, whether
for payment or performance, whether heretofore arising, now existing or
hereafter arising, however evidenced, created, incurred, acquired or owing
and whether now contemplated or hereafter arising. Without limitation of
the foregoing, such liability and obligations include the principal amount
of
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Loans, interest, fees, indemnities or expenses under this Agreement and
all other Loan Documents, and all extensions, renewals and refinancing
thereof, whether or not such Loans were made in compliance with the terms
and conditions of this Agreement or in excess of the obligation of Bank to
lend. Borrower's Liabilities shall remain Borrower's Liabilities,
notwithstanding any assignment or transfer or any subsequent assignment or
transfer of any of the Borrower's Liabilities or any interest therein.
(j) "BORROWER'S OBLIGATIONS": all terms, conditions, warranties,
representations, agreements, undertakings, covenants and provisions (other
than Borrower's Liabilities) to be performed, discharged, kept, observed
or complied with by Borrower to or for the benefit of Bank, under the
terms of this Agreement and all other Loan Documents, and all extensions
and renewals or refinancing thereof, whether such obligation is direct or
indirect, secured or unsecured, joint or several, absolute or contingent,
due or to become due, whether heretofore arising, now existing or
hereafter arising, however evidenced, created, incurred, acquired or owing
and whether now contemplated or hereafter arising. Borrower's Obligations
shall remain Borrower's Obligations, notwithstanding any assignment or
transfer or any subsequent assignment or transfer of any of the Borrower's
Obligations or any interest therein.
(k) "BORROWING REQUEST": a request for an Advance setting forth
the information required pursuant to Section 2.5(a).
(l) "BUSINESS DAY": (i) For all purposes other than as covered
by clause (ii) hereof, any day, other than a Saturday, Sunday, a day that
is a legal holiday under the laws of the State of Illinois, or any other
day on which banking institutions located in the State of Illinois are
authorized or required by law or other governmental action to close; and
(ii) with respect to determinations in connection with, and payments of
principal and interest in Eurodollar Advances, any day which is a Business
Day described in clause (i) and which is also a day for trading by and
between banks in U.S. dollar deposits in the London Interbank Eurodollar
Market.
(m) "CAPITALIZED LEASE" at any time any lease which is, or is
required under GAAP to be, capitalized on the balance sheet of the lessee
at such time, and "CAPITALIZED LEASE OBLIGATION" of any Person at any time
shall mean the aggregate amount which is, or is required under GAAP to be,
reported as a liability on the balance sheet of such Person at such time
as lessee under a Capitalized Lease.
(n) "CHARGES": all national, Federal, state, county, city,
municipal and/or other governmental (or any instrumentality, division,
agency, body or department thereof, including without limitation the
Pension Benefit
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Guaranty Corporation) taxes, levies, assessments, charges, liens, claims
or encumbrances upon and/or relating to the Borrower's Assets,
Liabilities, Borrower's business, Borrower's ownership and/or use of any
of its Assets, Borrower's income and/or gross receipts and/or Borrower's
ownership and/or use of any of its material Assets.
(o) "CONSOLIDATED GROUP": Borrower and any Affiliates of
Borrower required to file consolidated tax returns pursuant to Section
1502 of the Code.
(p) "COSTS": any and all reasonable costs and expenses
(including, without limitation, the reasonable fees and expenses of any
counsel, accountants, appraisers or other professionals) incurred by Bank
at any time, in connection with: (i) the preparation, negotiation,
execution and administration of this Agreement and all other Loan
Documents; (ii) the preparation, negotiation and execution of any
amendment or modification of this Agreement or the other Loan Documents;
(iii) the custody, preservation, use or operation of, or the sale of,
collection from or other realization upon Assets of Borrower; (iv) the
exercise or enforcement of any of the rights of Bank hereunder; (v) any
failure by Borrower to perform or observe any of the provisions hereunder;
(vi) any litigation, contest, dispute, suit, proceeding or action (whether
instituted by Bank, Borrower or any other Person) in any way relating to
this Agreement, the other Loan Documents, Borrower's Liabilities,
Borrower's affairs or any Affiliate's affairs in connection with which, if
Bank is the plaintiff it makes a recovery or obtains any final order in
favor of Bank, or if Bank is the defendant it is not found by a court of
competent jurisdiction to be liable; (vii) any attempt to enforce any
rights of Bank against Borrower or any other Person which may be obligated
to Bank by virtue of this Agreement or the other Loan Documents in
connection with which Bank makes a recovery or obtains a final order in
Bank's favor; and (viii) performing any of the obligations relating to or
payment of any of Borrower's Obligations hereunder in accordance with the
terms hereof.
(q) "DEFAULT RATE": interest at the rate of two percent (2%) per
annum plus the Prime Interest Rate.
(r) "DESIGNATED PERSON": any Person identified as a "DESIGNATED
PERSON" on Borrower's Secretary's Certificate, as amended or superseded
from time to time.
(s) "DOLLARS" and "$": the lawful currency of the United States
of America.
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(t) "ENVIRONMENTAL LAWS": any Federal, state or local law, rule,
regulation, ordinance, order, code or statute applicable to Borrower or
its property, in each case as amended (whether now existing or hereafter
enacted or promulgated), controlling, governing or relating to the
pollution or contamination of the air, water or land or concerning
hazardous, special or toxic materials, wastes or substances, or any
judicial or administrative interpretation of such laws, rules or
regulations, including, without limitation, the Water Pollution Control
Act (33 U.S.C. section 1251 et seq.), Resource Conservation and Recovery
Act (42 U.S.C. section 6901 et seq.), Safe Drinking Water Act (42 U.S.C.
section 3000(f) et seq.), Toxic Substances Control Act (15 U.S.C. section
2601 et seq.), Clean Air Act (42 ▇.▇.▇.▇▇. 7401 et seq.), and
Comprehensive Environmental Response, Compensation and Liability Act (42
U.S.C. section 9601 et seq.).
(u) "EQUIPMENT LEASES": all leases or similar agreements
pursuant to which Borrower leases equipment.
(v) "EURODOLLAR ADVANCE": any portion of the Loan for which the
interest rate is based on the Eurodollar Rate, whether or not Bank obtains
Eurodollars equal to all or any portion of such Eurodollar Advance
(w) "EURODOLLAR RATE": with respect to each Eurodollar Advance
made at a time when Borrower's Liabilities are equal to or less than Two
Million Five Hundred Thousand Dollars ($2,500,000), the rate equal to one
and fifty one hundredths percent (1.50%) per annum plus the LIBOR Rate and
with respect to each Eurodollar Advance made at a time when Borrower's
Liabilities are more than Two Million Five Hundred Thousand Dollars
($2,500,000), the rate equal to one and seventy-five one hundredths
percent (1.75%) per annum plus the LIBOR Rate.
(x) "EVENT OF DEFAULT": the definition ascribed to this term in
Section 7.1.
(y) "EXCHANGE RATE": means, on any date when an amount expressed
in a currency other than Dollars is to be determined with respect to any
Letter of Credit, the nominal rate of exchange of Bank in the New York
foreign exchange market for the purchase by Bank (by cable transfer) of
such currency in exchange for Dollars at 12:00 noon (Chicago time) one
Business Day prior to such date (or otherwise in accordance with the
normal practice of Bank), expressed as a number of units of such currency
per one Dollar.
(z) "FINANCIALS": those financial statements of Borrower,
heretofore, concurrently herewith or hereafter delivered by or on behalf
of Borrower to Bank, including but not limited to those financial
statements and reports delivered by Borrower to Bank pursuant to Section
6.2(c).
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(aa) "GAAP": generally accepted accounting principles applied in
the preparation of the financial statements of a Person with such changes
thereto as: (i) shall be consistent with the then-effective principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors and successors, and (ii) shall be concurred in by the
independent certified public accountants of recognized standing acceptable
to Bank reviewing such financial statements of such Person.
(bb) "GOVERNMENTAL AUTHORITY": any government or political
subdivision or any agency, authority, bureau, central bank, commission,
department or instrumentality of either, or any court, tribunal. grand
jury or arbitrator, in each case whether foreign or domestic.
(cc) "GUARANTY EQUIVALENT": any agreement, document or instrument
pursuant to which a Person directly or indirectly guarantees, becomes
surety for, endorses, assumes, agrees to indemnify the obligee of any
other Person against, or otherwise agrees, becomes or remains liable
(contingently or otherwise) for, such obligation, other than by
endorsements of instruments in the ordinary course of business. Without
limitation, a Guaranty Equivalent shall be deemed to exist if a Person
agrees, becomes or remains liable (contingently or otherwise), directly or
indirectly: (i) to purchase or assume, or to supply funds for the payment,
purchase or satisfaction of, an obligation; (ii) to make any loan,
advance, capital contribution or other investment in, or a purchase or
lease of any property or services from, a Person; (iii) to maintain the
solvency of such Person; (iv) to enable such Person to meet any other
financial condition; (v) to enable such Person to satisfy any obligation
or to make any payment; (vi) to assure the holder of an obligation against
loss; (vii) to purchase or lease property or services from such Person
regardless of the non-delivery of or failure to furnish of such property
or services; or (viii) in respect of any other transaction the effect of
which is to assure the payment or performance (or payment of damages or
other remedy in the event of nonpayment or nonperformance) of any
obligation.
(dd) "INDEBTEDNESS": with respect to any Person, at a particular
time (without duplication): (i) all obligations on account of money
borrowed by, or credit extended to or on behalf of, or for or on account
of deposits with or advances to, such Person; (ii) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments; (iii)
all obligations of such Person for the deferred purchase price of property
or services other than trade payables incurred in the ordinary course of
business and on terms customary in the trade; (iv) all obligations secured
by a Lien on property owned by such Person (whether or not assumed); and
all obligations of such Person under Capitalized Leases (without regard to
any limitation of the rights and remedies of the holder of such Lien or
the lessor
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under such Capitalized Lease to repossession or sale of such property);
(v) the face amount of all letters of credit issued for the account of
such Person and, without duplication, the unreimbursed amount of all
drafts drawn thereunder, and all other obligations of such Person
associated with such letters of credit or draws thereon; (vi) all
obligations of such Person in respect of acceptances or similar
obligations issued for the account of such Person; (vii) all obligations
of such Person under a product financing or similar arrangement; (viii)
all obligations of such Person under any interest rate or currency
protection agreement, interest rate or currency future, interest rate or
currency option, interest rate or currency swap or cap or other interest
rate or currency hedge agreement; and (ix) all obligations and liabilities
with respect to unfunded vested benefits under any "EMPLOYEE BENEFIT PLAN"
or with respect to withdrawal liabilities incurred under ERISA by Borrower
or any ERISA Affiliate to a "MULTIEMPLOYER PLAN", as such terms are
defined under the Employee Retirement Income Security Act of 1974.
(ee) "INDEBTEDNESS INSTRUMENT": any note, mortgage, indenture,
chattel mortgage, deed of trust, loan agreement, hypothecation agreement,
pledge agreement, security agreement, financing statement or other
document, instrument or agreement evidencing or securing the payment of or
otherwise relating to the borrowing of monies. Indebtedness Instruments
shall include, but not be limited to the Loan Documents.
(ff) "INTEREST PERIOD": with respect to any Eurodollar Advance,
the period commencing on the date such Eurodollar Advance is made or
continued as a Eurodollar Advance, as the case may be, or the date on
which a Prime Rate Advance is converted into such Eurodollar Advance as
applicable, and ending one, two, three, six or twelve months thereafter,
as Borrower may elect in the applicable Borrowing Request (or as Borrower
shall be deemed to have elected, as applicable); provided that any
Interest Period which would otherwise end on a day which is not a Business
Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day. No Interest Period
shall terminate after the end of the Maturity Date.
(gg) "INTEREST RATE": the Prime Interest Rate or the Eurodollar
Rate, as determined in accordance with the provisions of Article 2.
(hh) "LETTER OF CREDIT" or "LETTERS OF CREDIT": any standby
letters of credit issued or to be issued by Bank for the account of
Borrower pursuant to Section 2.1(b) and Article 4.
(ii) "LETTER OF CREDIT USAGE": as at any date of determination,
the sum of (i) the maximum aggregate undrawn amount which is or at any
time
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thereafter may become available for drawing under all Letters of Credit
then outstanding plus (ii) the aggregate amount of all drawings under
Letters of Credit honored by Bank and not theretofore reimbursed by
Borrower (whether such reimbursement is out of the proceeds of Loans
pursuant to Section 2.1(a) or otherwise). For purposes of this definition,
any amount described in clause (i) or (ii) of the preceding sentence which
is denominated in a currency other than Dollars shall be valued based on
the applicable Exchange Rate for such currency as of the applicable date
of determination.
(jj) "LIBOR BREAKAGE FEE": a fee equal to all losses (excluding
loss of anticipated profits) costs, or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by Bank to
fund or maintain the requested Eurodollar Advance, when, as a result of
such failure on the part of Borrower or prepayment by Borrower (including,
without limitation, any mandatory prepayment of principal and any
prepayment resulting from the liabilities being declared due and payable
in accordance with their terms hereof), interest on such Eurodollar
Advance is not based on the applicable Eurodollar Rate for the requested
Interest Period.
(kk) "LIBOR RATE": for each Interest Period, a rate of interest,
per annum, equal to: (i) the rate of interest determined by the Bank at
which deposits in U.S. Dollars for the relevant Interest Period are
offered based on information presented on the Telerate Screen as of 11:00
A.M. (London time) on the applicable Interest Rate Determination Date;
provided that if more than one (1) offered rate appears on the Telerate
Screen in respect of such Interest Period, the arithmetic mean of all such
rates (as determined by the Bank) will be the rate used; provided further
that if Telerate ceases to provide LIBOR quotations, such rate shall be
the average rate of interest determined by the Bank at which deposits in
U.S. Dollars are offered for the relevant Interest Period by banks or
other financial institutions selected by Bank to banks in London interbank
markets as of 11:00 A.M. (London time) on the applicable Interest Rate
Determination Date, multiplied by (ii) the LIBOR Rate Reserve Percentage.
The LIBOR Rate shall be adjusted automatically as of the effective date of
each change in the LIBOR Rate Reserve Percentage. The LIBOR Rate shall be
calculated in accordance with the foregoing whether or not Bank is
actually required to hold reserves in connection with its eurocurrency
funding or, if required to hold such reserves, is required to hold
reserves at the LIBOR Rate Reserve Percentage.
(ll) "LIBOR RATE RESERVE PERCENTAGE": for any day shall mean the
percentage (expressed as a decimal, rounded upward to the nearest 1/100 of
1%), as determined in good faith by Bank (which determination shall be
conclusive), which is in effect on such day as prescribed by the Board of
Governors of the Federal Reserve System (or any successor) representing
the
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maximum reserve requirement (including, without limitation, supplemental,
marginal and emergency reserve requirements) with respect to eurocurrency
funding (currently referred to as "Eurocurrency liabilities") of a member
bank in such system.
(mm) "LIEN": any mortgage, deed of trust, pledge, lien,
hypothecation, security interest, charge or other encumbrance or security
arrangement of any nature whatsoever, including but not limited to any
conditional sale or title retention arrangement, and any assignment,
deposit arrangement or lease intended as, or having the effect of,
security.
(nn) "LOAN": any and all loans, advances, extensions of credit
and/or other financial accommodations of any kind or nature made by Bank
at any time to, for the benefit or at the request of Borrower pursuant to
this Agreement and/or any of the other Loan Documents.
(oo) "LOAN DOCUMENTS": this Agreement and the Other Agreements.
(pp) "LOAN PARTY": Borrower and every other Person who is a party
to any one or more of the Loan Documents.
(qq) "MATURITY DATE": May 31, 2003, or such earlier date as all
of Secured Obligations shall be due and payable by acceleration or
otherwise.
(rr) "MAXIMUM PRINCIPAL AMOUNT": the meaning set forth in
Section 2.1(a).
(ss) "NOTE": that certain amended, restated, consolidated and
substituted revolving promissory note dated even date herewith, in the
original principal amount of Twenty Million Dollars ($20,000,000) made by
Borrower payable to the order of Bank, as said note may hereafter be
amended, restated, modified, supplemented, extended or replaced.
(tt) "NOTICE OF ISSUANCE OF LETTER OF CREDIT": means notice
delivered by Borrower to Bank, in form and substance acceptable to Bank,
together with any application for letter of credit that Bank requires in
accordance with its customary practice for the issuance of letters of
credit pursuant to Section 2.1(b) and Article 4 with respect to the
proposed issuance of a Letter of Credit of the type requested
(uu) "ORGANIC DOCUMENTS": with respect to any Person, its articles
or certificate of incorporation, by-laws, shareholder's agreement,
certificate of partnership, certificate of limited partnership,
partnership agreement, articles of organization, operating agreement, or
similar documents or
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agreements governing its management and the rights and privileges of its
equity owners.
(vv) "OTHER AGREEMENTS": the Note, together with all other
agreements, instruments and documents evidencing or securing the Loans or
the transactions contemplated herein, including, without limitation, bond
agreements, loan agreements, security agreements, guaranties, mortgages,
deeds of trust, notes, applications and agreements for letters of credit,
letters of credit, advances of credit, bankers acceptances, pledges,
powers of attorney, consents, assignments, collateral assignments,
contracts, notices, leases, financing statements and all other written
matter heretofore, now and/or from time to time hereafter executed by
and/or on behalf of Borrower, any other Loan Party and delivered to Bank,
or issued by Bank upon the application and/or other request of, and on
behalf of, Borrower.
(ww) "PARENT": any Person, now or at any time or times hereafter,
owning or controlling (alone or with Borrower, any Subsidiary and/or any
other Person) at least a majority of the issued and outstanding Stock or
other ownership interest of Borrower or any Subsidiary (hereinafter
defined). For purposes of this definition, "CONTROL" shall have the same
meaning ascribed to this term in Section 1.1(c).
(xx) "PERMITTED LIENS": (i) any liens created in favor of Bank;
(ii) liens for Charges which are not yet due and payable or which are
expressly permitted pursuant to the terms hereof, or claims and unfunded
liabilities under ERISA not yet due and payable or which are being
contested in good faith; (iii) liens arising in connection with worker's
compensation, unemployment insurance, old age pensions and social security
benefits which are not overdue or are being contested in good faith by
appropriate proceedings diligently pursued, provided that in the case of
any such contest any proceedings commenced for the enforcement of such
lien shall have been duly suspended and such provision for the payment of
such lien has been made on the books of Borrower (or the applicable
Affiliate) as may be required by GAAP; (iv) liens incurred in the ordinary
course of business to secure the performance of statutory obligations
arising in connection with progress payments or advance payments due under
contracts with the United States Government or any agency thereof entered
into in the ordinary course of business; (v) any liens securing
indebtedness of Borrower to any Persons in an aggregate amount less than
$1,000,000; (vi) purchase money liens in connection with the acquisition
of Assets, (vii) Liens granted solely upon Assets of Subsidiaries; and
(viii) those liens disclosed on Schedule 5.1(g).
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(yy) "PERSON": any individual, sole proprietorship, partnership,
limited liability company, joint venture, trust, unincorporated
organization, association, corporation, institution, entity, party or
government (whether national, Federal, state, county, city, municipal or
otherwise, including without limitation any instrumentality, division,
agency, body or department thereof).
(zz) "PRIME INTEREST RATE": the prime rate of interest quoted
from time to time by the American National Bank and Trust Company of
Chicago as its base rate on corporate loans at large U.S. money center
commercial banks on such day; provided that in the event the American
National Bank and Trust Company of Chicago ceases quoting a prime or base
rate, then Prime Rate shall mean the per annum rate of interest quoted as
the Bank Prime Loan Rate for the most recent weekday for which such rate
is quoted in Statistical Release H.15 (519) published from time to time by
the Board of Governors of the Federal Reserve System; provided further
that in the event that both of the aforesaid indices cease to be published
or to quote rates of the aforesaid types, the Prime Rate shall be
determined from a comparable index chosen by Bank in good faith. The Prime
Rate shall change effective on the date of the publication of any change
in the applicable index by which the Prime Rate is determined.
(aaa) "PRIME RATE ADVANCE": all or any portion of the Loan which
is not a Eurodollar Advance.
(bbb) "RECORDS": all books, records, computer records, computer
software, ledger cards, programs and other computer materials, customer
and supplier lists, invoices, orders and other property and general
intangibles at any time evidencing or relating to the Assets.
(ccc) "SEC": the Securities and Exchange Commission.
(ddd) "SECURITIES": shall have the meaning ascribed to that term in
the Securities Act of 1934.
(eee) "SECURITIES LAWS": all applicable Federal and state
securities laws and regulations promulgated pursuant thereto.
(fff) "STOCK": all shares, interests, participations or other
equivalents (however designated) of or in a corporation, whether voting or
non-voting, including, but not limited to, common stock, warrants,
preferred stock, convertible debentures and all agreements, instruments
and documents convertible, in whole or in part, into any one or more or
all of the foregoing.
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(ggg) "SUBSIDIARY": any Person at least a majority of whose issued
and outstanding Stock or other ownership interests now or at any time
hereafter is owned by Borrower.
(hhh) "TANGIBLE NET WORTH": as determined at any time, the total of
shareholders' equity (including capital stock, additional paid-in capital
and retained earnings after deducting treasury stock and subordinated
indebtedness approved in writing by Bank) of a Person, less the sum of the
total amount of any intangible assets, which, for purposes of this
definition, shall include, without limitation, general intangibles,
noncompetition agreements, consulting agreements, capitalized software
costs, unamortized deferred charges and goodwill, all as determined in
accordance with GAAP.
(iii) "UNMATURED DEFAULT": any event or condition which, with the
passage of time or the giving of notice or both, would constitute an Event
of Default hereunder.
1.2 GAAP. Except as otherwise defined in this Agreement or the
other Loan Documents, all accounting terms used herein shall have the meaning
ascribed to that term in accordance with GAAP.
1.3 Borrower. Whenever the context so requires, the use of "IT" in
reference to Borrower shall mean Borrower as defined above.
1.4 Rules of Construction. In this Agreement, unless a clear contrary
intention appears:
(a) the singular number includes the plural number and vice
versa; reference to any gender includes each other gender;
(b) the words "HEREIN," "HEREOF" and "HEREUNDER" and other
words of similar import refer to this Agreement as a whole and not to any
particular Article, Section or other subdivision;
(c) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are
permitted by this Agreement, and reference to a Person in a particular
capacity excludes such Person in any other capacity or individually;
provided that nothing in this clause is intended to authorize any
assignment not otherwise permitted by this Agreement;
(d) reference to any agreement, document or instrument means such
agreement, document or instrument as amended, supplemented or modified and
in effect from time to time in accordance with the terms thereof and, if
applicable, the terms hereof, and reference to any note
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includes any note issued pursuant to any Loan Document in extension or
renewal thereof and in substitution or replacement therefor;
(e) unless the context indicates otherwise, reference to any
Article, Section, Schedule or Exhibit means such Article or Section
hereof or such Schedule or Exhibit hereto:
(f) the words "INCLUDING" (and with correlative meaning
"INCLUDE") means including, without limiting the generality of any
description preceding such term;
(g) with respect to the determination of any period of time, the
word "FROM" means "FROM AND INCLUDING" and the word "TO" means "to but
excluding;" and
(h) reference to any law means such as amended, modified,
codified or reenacted, in whole or in part, and in effect from time to
time.
(i) The Article and Section headings herein are for convenience
only and shall not affect the construction hereof.
2. LOANS - GENERAL TERMS
2.1 Revolving Loan/Letters of Credit.
(a) Revolving Loan. Subject to the terms and conditions hereof,
Bank shall make available to Borrower revolving Loans from time to time in
an aggregate principal amount not to exceed at any time outstanding Twenty
Million Dollars ($20,000,000) (the "MAXIMUM PRINCIPAL AMOUNT"). The Loans
shall be further evidenced by the Note. The Loans shall be funded and
interest shall accrue and be paid thereon in accordance with this Article
2. The entire unpaid principal balance plus accrued but unpaid interest on
the Loans is due and payable on the Maturity Date.
(b) Letters of Credit. In addition to the Loans made pursuant to
Section 2.1(a), Borrower may request, in accordance with the provisions of
Article 4, from time to time and at any time prior to the Maturity Date,
that Bank issue Letters of Credit for the account of and on behalf of
Borrower for Borrower's working capital and general corporate purposes.
Subject to the terms and conditions of this Agreement and in reliance upon
the representations and warranties of Borrower herein set forth, Bank
shall issue such Letters of Credit in accordance with the provisions of
Section 4; provided that Borrower shall not request that Bank issue (and
Bank shall not issue): (i) any Letter of Credit if, after giving effect to
such issuance, the outstanding principal balance of the Loan plus the
Letter of Credit Usage
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would exceed Twenty Million Dollars ($20,000,000); and (ii) any Letter of
Credit having an expiration date later than November 30, 2003, provided
that Bank may agree (but shall have no obligation to agree) that a Letter
of Credit will automatically be extended for one or more successive
periods.
2.2 Maximum Principal Amount. In the event that the outstanding
principal balance of the Loan plus the Letter of Credit Usage exceeds the
Maximum Principal Amount at any time, Borrower shall pay the amount of
such excess to Bank, without notice or demand, and any amount not so paid
shall bear interest at the Default Rate until paid. Borrower's obligation
to pay principal pursuant to this Section 2.2 shall include (but not be
limited to) an obligation to pay principal in an amount required to reduce
the outstanding principal balance of the Loan plus the Letter of Credit
Usage to an amount equal to or less than Twenty Million Dollars
($20,000,000) at all times. This is an absolute obligation to pay to Bank
the amount of the unpaid principal balance of the Loan plus the Letter of
Credit Usage in excess of said Maximum Principal Amount, regardless of the
cause of such excess.
2.3 Maturity Date; Termination of Loans. Bank's obligation
to make any Advance to Borrower pursuant to the provisions hereof shall be
in effect until the Maturity Date, unless sooner terminated ( a) by Bank
upon the occurrence of an Event of Default, an Unmatured Default, or
pursuant to the terms hereof or (b) by Borrower at any time upon no less
than three (3) Business days' prior written notice, accompanied by payment
in full all Borrower's Liabilities then outstanding, including without
limitation all principal and interest outstanding under Loans, together
with all Costs.
2.4 Authorized Disbursement of Proceeds. Borrower hereby
authorizes and directs Bank to disburse, for and on behalf of Borrower and
for Borrower's account, the proceeds of any Loan to such Person as
Borrower or any Designated Person shall direct. In addition to Advances of
Loan proceeds made pursuant to a Borrowing Request made by Borrower from
time to time, Borrower hereby irrevocably authorizes Bank to disburse
proceeds of the Loan to pay: (a) interest which is accrued but unpaid and
which is due and payable pursuant to the terms hereof and of the Note
until the Loan is paid in full; and (b) for any and all Costs. The
execution of this Agreement by Borrower shall, and hereby does, constitute
an irrevocable direction and authorization to Bank so to disburse such
funds described in this Section and to treat such Advances as money loaned
pursuant to this Agreement and as indebtedness evidenced by the Note. No
further direction or authorization from Borrower shall be necessary for
Bank to make such Advances, and all such Advances shall satisfy, to the
extent so disbursed, the obligations of Borrower hereunder and shall be
evidenced by the Note. Notwithstanding anything to the contrary contained
herein, Bank is under no duty or obligation to make such Advances and
failure to make such Advances shall not
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be deemed to be a default by Bank or impair any of Bank's rights or
remedies hereunder.
2.5 Borrowing Procedure.
(a) In order to request an Advance, Borrower shall hand deliver
or telecopy to Bank a duly completed Borrowing Request not later than
11:00 a.m. Chicago time: (i) at least two (2) Business Days before a
proposed Eurodollar Advance and (ii) on the day of a proposed Prime Rate
Advance. Each Borrowing Request shall be irrevocable and shall specify:
(w) the number and location of the account to which funds are to be
disbursed; (x) the date such Advance is to be made (which shall be a
Business Day); (y) the amount of such Advance; and (z) if applicable, the
information required to elect that such Advance be a Eurodollar Advance,
in compliance with the provisions of Sections 2.10 and 2.11.
(b) If Borrower in respect of an outstanding Eurodollar Advance
shall not have delivered a Borrowing Request in accordance with Section
2.5(a) at least three (3) Business Days prior to the end of the Interest
Period then in effect for such Eurodollar Advance and requesting that such
Eurodollar Advance be refinanced, then Borrower shall (unless Borrower has
notified the Bank not fewer than three (3) Business Days prior to the end
of such Interest Period, that such Eurodollar Advance is to be repaid at
the end of such Interest Period) be deemed to have delivered a Borrowing
Request requesting that such Advance be refinanced with a new Advance of
equivalent amount, and such new Advance shall bear interest at the Prime
Interest Rate.
2.6 Interest Rate. The principal on the Note shall bear interest at the
Prime Interest Rate or, to the extent Borrower has fully and timely complied
with the provisions of Sections 2.10 and 2.11, at the Eurodollar Rate. Unless
Borrower has designated any Advance as a Eurodollar Advance in strict accordance
with the terms hereof, Borrower's Liabilities shall bear interest at the Prime
Interest Rate. Interest on all Prime Rate Advances and on all Eurodollar
Advances shall be computed on a 360 day year for the actual number of days
elapsed. After the occurrence of an Event of Default and during the continuation
thereof, all Loans shall bear interest at the Default Rate. The unpaid principal
balance of each Advance shall bear interest at the Interest Rate applicable
thereto, determined by Bank in accordance with the provisions hereof, which
determination shall be binding upon Borrower, absent manifest error.
2.7 Change of Laws. If Bank shall determine at any time after the date
hereof that the adoption of any law, rule or regulation regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the
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interpretation or administration thereof or compliance by Bank with any request
or directive regarding capital adequacy (whether or not having the force of law)
from any such authority, central bank or comparable agency, has or would have
the effect of reducing the rate of return on Bank's capital as a consequence of
its obligations hereunder to a level below that which Bank could have achieved
but for such adoption, change or compliance (taking into consideration Bank's
policies with respect to capital adequacy) by an amount deemed by Bank to be
material, then Borrower shall pay to Bank upon demand such amount or amounts, in
addition to the amounts payable under any other provision of this Agreement or
the Other Agreements, as will compensate Bank for such reduction. Determinations
by Bank for purposes of this Section of the additional amount or amounts
required to compensate Bank with respect to the foregoing shall be conclusive in
the absence of manifest error. In determining such amount or amounts, Bank may
use any reasonable averaging or attribution methods. Notwithstanding the
foregoing, no amounts shall be payable by Borrower to Bank under the terms of
this Section 2.7 if Liabilities are paid in full on or before ten (10) days
after the date on which Bank shall have notified Borrower that amounts will be
due under this Section 2.7. In the event of a prepayment pursuant to this
Section 2.7, any LIBOR Breakage Fee otherwise payable pursuant to the terms of
this Article 2 shall be waived by Bank and shall not be due or payable.
2.8 Regulatory Changes. Notwithstanding any other provision herein
contained to the contrary, in the event that any regulatory change shall, in the
reasonable determination of Bank, make it unlawful for Bank to make or to
maintain any Eurodollar Advance or impose additional restrictions on Eurodollar
Advances by Bank, then, the obligation of Bank to make or maintain any such
Eurodollar Advance shall be terminated and all outstanding Eurodollar Advances
shall automatically be converted to Prime Rate Advances. Bank shall, as promptly
as practicable following any such determination, give Borrower a notice thereof
that sets forth the basis for any such determination. After such determination
and while such determination is in effect, Bank shall not be required to make
further Eurodollar Advances.
2.9 Advances Prior to LIBOR Rate Determination. Anything herein to the
contrary notwithstanding, after notice but prior to making any requested
Eurodollar Advance if, for any reason whatsoever, LIBOR Rates are not then being
quoted for the requested Interest Period and in an amount approximating the
amount of such Eurodollar Advance, Bank shall give Borrower prompt notice
thereof and such Eurodollar Advance (if not yet made) shall be a Prime Rate
Advance and no conversions into Eurodollar Advances shall be permitted and no
new Eurodollar Advances shall be made so long as such condition exists.
2.10 Eurodollar Advances and Conversion. Provided no Event of Default or
Unmatured Default has occurred and is continuing, Borrower shall have the
option, subject to the other provisions of this Agreement, to: (i) request that
any Advance
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or any portion of an Advance in a minimum amount of $500,000 and in multiples of
$100,000, shall be deemed to be a Eurodollar Advance by giving telephonic notice
to Bank at least two (2) Business Days prior to the day any Eurodollar Advance
is to be made hereunder specifying the applicable Interest Period; provided that
Borrower gives Bank written confirmation by facsimile of its telephonic notice
on the same Business Day as such telephone notice is given with respect to such
Eurodollar Advance, and (ii) convert on any Business Day, all or any portion of
the outstanding principal amount of any Advance or any portion of an Advance, in
a minimum amount of $500,000 and in multiples of $100,000, from one type of
interest rate advance to another type of interest rate advance by giving at
least two (2) Business Days prior telephonic notice to Bank thereof; provided
that Borrower gives Bank written confirmation of its telephonic notice by
facsimile on the same Business Day that such telephonic notice is given with
respect to such conversion hereunder. Notwithstanding the foregoing: (y) no
Eurodollar Advance may be converted into a Prime Rate Advance pursuant to this
Section 2.10, except effective on the last day of the Interest Period applicable
thereto, and (z) Borrower shall have no more than five (5) Eurodollar Advances
with different interest periods at any one time.
2.11 Interest Period Election. Borrower may, by prior telephonic notice
to Bank, elect the Interest Period(s) to be applicable to all or any portion of
any Eurodollar Advance upon the expiration of the Interest Period then
applicable to such Eurodollar Advance; provided that such notice is given to
Bank at least two (2) Business Days prior to the expiration of the then Interest
Period and that Borrower gives written confirmation by facsimile of its
telephonic notice on the same Business Day that such telephonic notice is given.
In the event Borrower does not make such an election with respect to all or any
portion of a Eurodollar Advance for which the Interest Period is expiring, then,
upon the expiration of such Interest Period, the portion of such Eurodollar
Advance for which no such election has been made shall automatically convert to
a Prime Rate Advance.
2.12 Libor Brokerage Fee. In the event of any prepayment of an Advance
prior to the end of the then applicable Interest Period (by acceleration or
otherwise) or in the event any Advance is not made after delivery of a Borrowing
Request in accordance with the terms hereof, for any reason whatsoever, Borrower
shall pay to Bank an amount equal to the LIBOR Breakage Fee. Any fee payable
under this Sections 2.12 not paid when due shall bear interest at the Default
Rate.
2.13 Usury. The provisions of this Section shall govern and control over
any irreconcilably inconsistent provision contained in this Agreement or in any
other document evidencing or securing the Loan. Bank shall never be entitled to
receive, collect, or apply as interest hereon (for purposes of this Section, the
word "INTEREST" shall be deemed to include any sums treated as interest under
applicable law governing matters of usury and unlawful interest), any amount in
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excess of the Highest Lawful Rate (hereinafter defined) and, in the event Bank
ever receives, collects, or applies as interest any such excess, such amount
which would be excessive interest shall be deemed a partial prepayment of
principal and shall be treated hereunder as such; and, if the principal of this
Agreement is paid in full, any remaining excess shall forthwith be paid to
Borrower. In determining whether or not the interest paid or payable, under any
specific contingency, exceeds the Highest Lawful Rate, Borrower and Bank shall,
to the maximum extent permitted under applicable law, (i) characterize any
non-principal payment as an expense, fee or premium rather than as interest,
(ii) exclude voluntary prepayments and the effects thereof, and (iii) spread the
total amount of interest throughout the entire contemplated term of this
Agreement, provided, that if this Agreement is paid and performed in full prior
to the end of the full contemplated term hereof, and if the interest received
for the actual period of existence hereof exceeds the Highest Lawful Rate, Bank
shall refund to Borrower the amount of such excess and, in such event, Bank
shall not be subject to any penalties provided by any laws for contracting for,
charging or receiving interest in excess of the Highest Lawful Rate. "HIGHEST
LAWFUL RATE" shall mean the maximum rate of interest which Bank is allowed to
contract for, charge, take, reserve or receive under applicable law after taking
into account, to the extent required by applicable law, any and all relevant
payments or charges hereunder.
3. PAYMENT TERMS
3.1 Loan Account; Method of Making Payments. Bank shall maintain a Loan
Account on its books in which shall be recorded: (i) all Loans made by Bank to
Borrower pursuant to this Agreement; (ii) all payments made by Borrower on all
Loans; and (iii) all other appropriate debits and credits as provided in this
Agreement, including, without limitation, all fees, charges, expenses and
interest. All entries in the Loan Account shall be made in accordance with
Bank's customary accounting practices, in effect from time to time. The failure
of Bank to record any of the foregoing shall not in any way limit Borrower's
obligations under this Agreement.
3.2 Interest Payments.
(a) Accrued interest on all Prime Rate Advances shall be payable
monthly, in arrears, on the last Business Day of each month during the
term hereof, without notice or demand.
(b) Accrued interest on any Eurodollar Advance shall not be due
and payable monthly, but, instead, shall be payable in arrears on the last
day, of the Interest Period applicable thereto and if Borrower has elected
an Interest Period of six or twelve months, accrued but unpaid interest
shall be payable on the three-month, six-month, and nine-month anniversary
(if applicable) of the commencement of the Interest Period.
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3.3 Principal Payments.
(a) The unpaid principal balance, plus all accrued but unpaid
interest shall be due and payable in full on the Maturity Date, without
notice or demand.
(b) In addition to interest payments due pursuant to Section 3.2
and principal payments due pursuant to Section 3.3(a), Borrower shall pay
to Lender (i) the total consideration paid with respect to any sale,
lease, conveyance or transfer of Borrower's or any Subsidiary's assets
(including stock, partnership interests, membership interests, trust
interests, warrants, options or debentures), not in the ordinary course of
business and (ii) the total proceeds of any public offering by Borrower
pursuant to Section 6.7, minus any amount actually expended by Borrower
for necessary and commercially reasonable expenses incurred with respect
to such transactions, including attorney's fees and payment of any
indebtedness secured by Assets being transferred. Any amount so paid shall
be applied to the Secured Obligations in accordance with the provisions
hereof and any amount so applied to principal shall permanently reduce the
Maximum Principal Amount and may not be reborrowed.
3.4 Place of Payment. All payments to Bank hereunder and under the Other
Agreements shall be payable in immediately available funds on or before 3:00
p.m. Chicago time at the principal place business of Bank, or such place or
places as Bank may designate in writing to Borrower. All of such payments to
Persons other than Bank shall be payable at such place or places as Bank may
designate in writing to Borrower. Borrower's Liabilities will be payable as set
forth in the Note, this Agreement, and the Other Agreements.
3.5 Payment on Maturity and Prepayment. On the Maturity Date, whether by
acceleration or otherwise, Borrower shall pay to Bank, in full, in cash or other
immediately available funds, the outstanding amount of the Loan. Each Prime Rate
Advance may be repaid at any time, without premium or penalty by Borrower giving
telephonic notice to Bank of such prepayment no later than 3:00 p.m. Chicago
time on the date of such prepayment, confirmed in writing by facsimile of its
telephonic notice on the same day. Each Eurodollar Advance may be prepaid on the
last day of the Interest Period applicable thereto, but only by Borrower giving
telephonic notice to Bank of such prepayment at least two (2) Business Days
prior to the day of such prepayment, such notice confirmed in writing by
facsimile on the day of the telephonic notice. Prepayment of any Eurodollar
Advance during an Interest Period is expressly prohibited. In the event of an
attempted prepayment of any Eurodollar Advance during any Interest Period, Bank,
at Borrower's option, shall either: (i) hold such funds in a non-interest
bearing cash collateral account to secure Borrower's Liabilities and to apply
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such funds to Borrower's Liabilities on the last day of the Interest Period, or
(ii) apply such funds to Borrower's Liabilities, in which event Borrower shall
pay to Bank a LIBOR Breakage Fee immediately upon demand therefor, and any
amount not so paid shall bear interest at the Default Rate.
3.6 Advances to Constitute One Loan. All Advances, loans and any other
financial accommodations provided pursuant to the terms hereof by Bank to
Borrower shall constitute one loan and all indebtedness and obligations of
Borrower to Bank under this Agreement, the Other Agreements or otherwise shall
constitute one general obligation.
3.7 Application of Payments and Collections.
(a) Application of Payments. Bank shall have the right
unilaterally (and without notice to or the consent of any Person) to
allocate any and all payments which may be received by or tendered to Bank
made by Borrower or any other Person at any time or from time to time and
which relate in any way to the Loan or any other of Borrower's Liabilities
then due and payable in any order of priority as Bank in its reasonable
discretion shall elect, as follows: (i) to the payment of any Costs; (ii)
to accrued but unpaid interest, penalties and late payment fees; and (iii)
to principal; provided that Bank shall not allocate payments in a manner
which would create a LIBOR Breakage Fee or other fee or penalty payable by
Borrower which would not otherwise be imposed. Borrower (y) irrevocably
waives the right to direct the application of payments and collections
received by Bank from or on behalf of Borrower, and (z) agrees that Bank
shall have the continuing exclusive right to apply and reapply any and all
such payments and collections against the Loan or any other Borrower's
Liabilities or Liabilities then due and payable in such manner as Bank may
deem appropriate, notwithstanding any entry by Bank upon any of its books
and records.
(b) Reapplication of Payments. To the extent that Bank receives
any payment on account of Borrower's Liabilities, and any such payment(s)
and/or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside, subordinated and/or required
to be repaid to a trustee, receiver or any other Person under any
bankruptcy act, state or federal law, common law or equitable cause, then,
to the extent of such payment(s) or proceeds received, Borrower's
Liabilities or part thereof intended to be satisfied shall be revived and
continue in full force and effect, as if such payment(s) and/or proceeds
had not been received by Bank and applied on account of the Borrower's
Liabilities.
3.8 Monthly Statements. All Advances to Borrower and all other debits
and credits provided for in this Agreement shall be evidenced by entries made by
Bank in its internal data control systems showing the date, amount and reason
for each such debit or credit. Until such time as Bank shall have rendered to
Borrower
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written statements of account as provided herein, the balance in the Loan
Account, as set forth on Bank's most recent statement, shall be rebuttably
presumptive evidence of the amounts due and owing to Bank by Borrower. At Bank's
option, Bank may render a monthly statement to Borrower setting forth the
balance of the Loan Account, including principal, interest, costs, penalties,
charges and other fees. Each such statement shall be subject to subsequent
adjustment by Bank and Bank's right to reapply payments in accordance with
Section 3.7(b), but shall, as to statements of principal and interest then due
or having been paid, absent manifest errors or omissions, be presumed correct
and binding upon Borrower and shall constitute an account stated unless, within
thirty (30) days after receipt of any statement from Bank, Borrower shall
deliver to Bank written objection thereto, specifying the error or errors, if
any, contained in such statement.
4. LETTERS OF CREDIT
4.1 Mechanics of Issuance.
(a) Notice of Issuance. Whenever Borrower desires the issuance of
a Letter of Credit, it shall deliver to Bank a Notice of Issuance of
Letter of Credit no later than 10:00 A.M. (Chicago time) at least three
(3) Business Days in advance of the proposed date of issuance. The Notice
of Issuance of Letter of Credit shall specify (i) the proposed date of
issuance (which shall be a Business Day), (ii) the face amount of the
Letter of Credit, in Dollars (which amount, in the case of a drawing under
a Letter of Credit which is denominated in a currency other than Dollars,
shall be calculated by reference to the applicable Exchange Rate) as
quoted by Bank to Borrower in connection with such Letter of Credit, (iii)
the expiration date of the Letter of Credit, (iv) the name and address of
the beneficiary, and (v) the verbatim text of the proposed Letter of
Credit or the proposed terms and conditions thereof, including a precise
description of any documents and the verbatim text of any certificates to
be presented by the beneficiary which, if presented by the beneficiary
prior to the expiration date of the Letter of Credit, would require Bank
to make payment under the Letter of Credit; provided that, anything to the
contrary in this Agreement notwithstanding, Borrower may, with Bank's
consent, deliver a Notice of Issuance of Letter of Credit electronically
to Bank, in which such event Borrower shall be deemed for all purposes
hereunder and the other Loan Documents to have delivered a written Notice
of Issuance of Letter of Credit hereunder. Borrower shall notify Bank
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Borrower is required to certify in the applicable Notice
of Issuance of Letter of Credit is no longer true and correct as of the
proposed date of issuance of such Letter of Credit, and upon the issuance
of any Letter of Credit, Borrower shall be deemed to have re-certified, as
of the date of such issuance, as to the
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matters to which Borrower is required to certify in the applicable Notice
of Issuance of Letter of Credit.
(b) Issuance of Letter of Credit. Upon satisfaction or waiver of
the conditions set forth herein, Bank shall issue the requested Letter of
Credit in accordance with Bank's standard operating procedures; provided
that the Bank, in its sole and absolute discretion, may require changes in
the text of the proposed Letter of Credit or any such documents or
certificates, and that no Letter of Credit shall require payment against a
conforming draft to be made thereunder on the same Business Day that such
draft is presented if such presentation is made after 10:00 A.M. (Chicago
time) on such Business Day; provided further that Bank shall not be
obligated to issue any Letter of Credit denominated in a foreign currency
which in the judgment of Bank is not readily and freely available.
4.2 Letter of Credit Fees. Borrower agrees to pay the following amounts
to Bank with respect to Letters of Credit issued by Bank (a) an issuance fee
equal to 1.5% of the aggregate maximum amount available to be drawn under such
Letter of Credit for each 12 month period or portion thereof during which such
Letter of Credit is outstanding and (b) all issuing costs of Bank.
4.3 Drawings and Reimbursement of Amounts Drawn Under Letters of Credit.
(a) Responsibility of Bank With Respect to Requests For Drawings.
In determining whether to honor any request for drawing under any Letter
of Credit by the beneficiary thereof, Bank shall be responsible only to
determine that the documents and certificates required to be delivered
under such Letter of Credit have been delivered and that they comply on
their face with the requirements of such Letter of Credit.
(b) Reimbursement by Borrower of Amounts Drawn Under Letters of
Credit. In the event Bank has determined to honor a request for drawing
under a Letter of Credit issued by it, Bank shall immediately notify
Borrower, and Borrower shall reimburse Bank on or before the Business Day
immediately following the date on which such drawing is honored (the
"REIMBURSEMENT DATE") in an amount in Dollars (which amount, in the case
of a drawing under a Letter of Credit which is denominated in a currency
other than Dollars, shall be calculated by reference to the applicable
Exchange Rate on the date of such drawing) in same day funds equal to the
amount of such drawing; provided that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Borrower shall have
notified Bank prior to 10:00 A.M. (Chicago time) on the date of such
drawing that Borrower intends to reimburse Bank for the amount of such
drawing with funds other than the proceeds of Loans made pursuant to
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Section 2.1(a), Borrower shall be deemed to have authorized Bank to make a
Loan on the Reimbursement Date in an amount equal to the amount of such
drawing, and (ii) subject to satisfaction or waiver of all conditions to
the making of Loans, Bank shall, on the Reimbursement Date, make a Loan in
the amount of such drawing, the proceeds of which shall be applied
directly by Bank to reimburse Bank for the amount of such drawing. If for
any reason proceeds of a Loan are not available to Borrower in accordance
with Section 2.1(a) in amount of such drawing, Borrower shall reimburse
Bank, on demand, an amount in same day funds equal to the excess of the
amount of such drawing over the aggregate amount of such Loans, if any,
which are so received.
4.4 Interest on Amounts Drawn Under Letters of Credit. Borrower agrees
to pay to Bank, with respect to drawings made under any Letters of Credit issued
by it, interest on the amount paid by Bank in respect of each such drawing from
the date of such drawing to but excluding the date such amount is reimbursed by
Borrower (including any such reimbursement out of the proceeds of Loans pursuant
to Sections 2.1(a) and 4.3 at the Prime Interest Rate.
4.5 Obligations Absolute. The obligation of Borrower to reimburse Bank
for drawings made under the Letters of Credit issued by it and to repay any
Loans made by Bank or other obligations of Borrower pursuant to Sections 4.3 and
4.4 above shall be unconditional and irrevocable and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances including,
without limitation, the following circumstances:
(a) any lack of validity or enforceability of any Letter of
Credit;
(b) the existence of any claim, set-off, defense or other right
which any Person may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), or whether in connection with this Agreement,
the transactions contemplated herein or any unrelated transaction
(including any underlying transaction between any Person and the
beneficiary for which any Letter of Credit was procured);
(c) any draft, demand, certificate or other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
accurate in any respect;
(d) payment by Bank under any Letter of Credit against
presentation of a demand, draft or certificate or other document which
does not comply with the terms of such Letter of Credit;
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(e) any adverse change in the business, operations, properties,
assets, condition (financial or otherwise) or prospects of any Person;
(f) any breach of this Agreement or any other Loan Document by
any party thereto;
(g) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing; or
(h) the fact that an Event of Default or an Unmatured Default
shall have occurred and be continuing;
provided, in each case, that payment by Bank under the applicable Letter of
Credit shall not have constituted willful misconduct of Bank or its officers,
employees or agents under the circumstances in question (as determined by a
final judgment of a court of competent jurisdiction).
4.6 Indemnification; Nature of Bank's Duties.
(a) Indemnification. In addition to amounts payable as provided
in any other provision of this Section 4, Borrower hereby agrees to
protect, indemnify, pay and save harmless Bank and its officers, employees
or agents from and against any and all claims, demands, liabilities,
damages, losses, and reasonable costs, charges and expenses (including
reasonable fees, expenses and disbursements of counsel) which Bank may
incur or be subject to as a consequence, direct or indirect, of (i) the
issuance of any Letter of Credit by Bank, other than as a result of the
willful misconduct of Bank or its officers, employees or agents as
determined by a final judgment of a court of competent jurisdiction or,
subject to the following clause (ii), the wrongful dishonor by Bank of a
proper demand for payment made under any Letter of Credit issued by it, or
(iii) the failure of Bank to honor a drawing under any such Letter of
Credit as a result of any act or omission, whether rightful or wrongful,
of any present or future de jure or de facto government or governmental
authority (all such acts or omissions herein called "GOVERNMENTAL ACTS").
(b) Nature of Bank's Duties. As between Borrower and Bank,
Borrower assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by Bank by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
Bank shall not be responsible for: (i) the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any
party in connection with the application for and issuance of any such
Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of
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any instrument transferring or assigning or purporting to transfer or
assign any such 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; (iii) failure of the beneficiary of any such
Letter of Credit to comply fully with any conditions required in order to
draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable,
telegraph, telex or otherwise, whether or not they be in cipher; (v)
errors in interpretation of technical terms; (vi) any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under any such Letter of Credit or of the proceeds thereof; (vii)
the misapplication by the beneficiary of any such Letter of Credit of the
proceeds of any drawing under such Letter of Credit; or (viii) any
consequences arising from causes beyond the control of Bank, including
without limitation any Governmental Acts, and none of the above shall
affect or impair, or prevent the vesting of, any of Bank's rights or
powers hereunder.
(c) Limitation of Bank's Liability. In furtherance and extension
and not in limitation of the specific provisions set forth in the first
paragraph of this Section 4.6, any action taken or omitted by Bank under
or in connection with the Letters of Credit issued by it or any documents
and certificates delivered thereunder, if taken or omitted in good faith,
shall not put Bank under any resulting liability to Borrower.
4.7 Increased Costs and Taxes Relating to Letters of Credit. Without
limiting the other provision of Article 4, in the event that Bank shall
determine (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto) that any change after the date
hereof in any law, treaty or governmental rule, regulation or order, or any
change therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by Bank
with any guideline, request or directive issued or made after the date hereof by
any central bank or other governmental or quasi-govern-mental authority (whether
or not having the force of law):
(a) subjects Bank (or its applicable lending or letter of credit
office) to any additional tax (other than any tax on the overall net
income of Bank) with respect to the issuing or maintaining of any Letters
of Credit or the purchasing or maintaining of any participations therein
or any other obligations under this Section 4, whether directly or by such
being imposed on or suffered by Bank;
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(b) imposes, modifies or holds applicable any reserve (including
without limitation any marginal, emergency, supplemental, special or other
reserve), special deposit, compulsory loan, FDIC insurance or similar
requirement in respect of any Letters of Credit issued by Bank; or
(c) imposes any other condition on or affecting Bank (or its
applicable lending or letter of credit office) regarding this Article 4 or
any Letter of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to Bank of
agreeing to issue, issuing or maintaining any Letter of Credit or agreeing to
purchase, purchasing or maintaining any participation therein or to reduce any
mount received or receivable by Bank (or its applicable lending or letter of
credit office) with respect thereto; then, in any case, Borrower shall promptly
pay to Bank, upon receipt if the statement referred to in the next sentence,
such additional amount or amounts as may be necessary to compensate Bank for any
such increased cost or reduction in amounts received or receivable hereunder.
Bank shall deliver to Borrower a written statement, setting forth in reasonable
detail the basis for calculating the additional amounts owed to Bank under this
Section 4.7, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.
4.8 Standard Letter of Credit Application. Notwithstanding Section 9.8
below, if any provision contained in this Agreement is in conflict, or
inconsistent with any provision of a Letter of Credit Application executed by
Borrower and delivered to and accepted by Bank in connection with this
Agreement, then the provision(s) of such Letter of Credit Application shall
control.
4.9 Unused Facility Fee. Borrower shall pay to Bank an unused facility
fee annually, commencing May 31, 2001, in amounts equal to .25% per annum of the
Maximum Principal Amount minus the average outstanding principal balance during
the immediately preceding twelve month period.
5. GENERAL WARRANTIES, REPRESENTATIONS AND COVENANTS
5.1 General Representations, Warranties and Covenants. Except as
disclosed in writing to Bank concurrently herewith, Borrower warrants and
represents to and covenants with Bank that:
(a) Organization. Borrower is and at all times hereafter shall be
a corporation, duly organized and existing and in good standing under the
laws of the State of Delaware and qualified or licensed to do business and
in good standing in all states in which the laws thereof require Borrower
to be so qualified and/or licensed and in which the failure to so qualify
could have a material adverse effect on the business, Assets or condition
(financial or
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otherwise) of Borrower or its ability to perform its obligations under the
Loan Documents, including without limitation the States of Illinois and
Delaware.
(b) Entity Power. Borrower has corporate power and authority to
own its property and to transact the business in which it is engaged or
presently proposes to engage. Borrower has the corporate right, power and
capacity and is duly authorized and empowered to enter into, execute,
deliver and perform this Agreement and the other Loan Documents to which
it is a party, and all such action has been duly and validly authorized by
all necessary corporate proceedings on its part. Without limitation of the
foregoing, Borrower has the corporate power and authority to borrow
pursuant to the Loan Documents to the fullest extent permitted hereby and
thereby from time to time, and has taken all necessary corporate action to
authorize such borrowings.
(c) Violation of Organic Documents and Agreements. Neither the
execution and delivery of this Agreement or any other Loan Document, nor
consummation of the transactions herein or therein contemplated, nor
performance of or compliance with the terms and conditions hereof or
thereof, does or will (i) violate or conflict with any Law, or (ii)
violate, conflict with or result in a breach of any term or condition of,
or constitute a default under, or result in (or give rise to any right,
contingent or otherwise, of any Person to cause) any termination,
cancellation, prepayment or acceleration of performance of, or result in
the creation or imposition of (or give rise to any obligation, contingent
or otherwise, to create or impose) any lien upon any of property of
Borrower pursuant to, or otherwise result in (or give rise to any right,
contingent or otherwise, of any Person to cause) any change in any right,
power, privilege, duty or obligation of Borrower under or in connection
with (a) the Organic Documents of Borrower, (b) any agreement or
instrument creating, evidencing or securing any Indebtedness or Guaranty
Equivalent to which Borrower is a party or by which its or any of its
properties (now owned or hereafter acquired) may be subject or bound, or
(c) any other agreement or instrument or arrangement to which Borrower is
a party or by which it or any of its properties (now owned or hereafter
acquired) may be subject or bound.
(d) Execution and Binding Effect. This Agreement and each other
Loan Document to which Borrower is a party and which is executed and
delivered or required to be executed and delivered on or before the date
of which this representation and warranty is made, or deemed made, has
been duly and validly executed and delivered by Borrower. This Agreement
and each such other Loan Document constitutes, and each other Loan
Document when executed and delivered by Borrower will constitute, the
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legal, valid and binding obligations of Borrower, enforceable against
Borrower in accordance with its terms.
(e) Ownership
(i) Schedule 5.1(e) sets forth all classes of stock of
Borrower, the shareholders thereof (other than members
of the general public), addresses of each such
shareholder, number of shares owned and how the shares
are held.
(ii) Schedule 5.1(e) (as may be amended from time to time)
sets forth all options, warrants and other rights to
acquire Stock or other equity interests of Borrower, the
nature of such option, warrant or right and the
conditions for the exercise thereof. Bank hereby
expressly consents to the transfer, issuance or
conveyance of Stock and/or other Equity Interests of any
Person in accordance with such options, warrants and
rights.
(iii) Borrower is not, and will not be, subject to any
obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital
stock. All of the outstanding shares of Borrower's
capital stock are and at all times will be validly
issued, fully paid and nonassessable. There are no
statutory or contractual stockholders' preemptive rights
with respect to Borrower's shares. Borrower has not
violated and will not violate any applicable federal or
state securities laws in connection with the offer, sale
and issuance of any of its capital stock. There are no
agreements between Borrower's stockholders with respect
to the voting or transfer of Borrower's capital stock.
(f) Fictitious Names. Each of the fictitious names, if any, used
by Borrower during the five (5) year period preceding the date of this
Agreement is set forth on Schedule 5.1(f) attached hereto (as amended from
time to time) and none of such fictitious names are registered trademarks
or tradenames with the U.S. Patent and Trademark Office, except as set
forth in Schedule 5.1(f).
(g) Liens/Title. Schedule 5.1(g) is a true, accurate and complete
list of all Liens, relating to the Assets of Borrower on the date hereof.
At all times following acquisition thereof, Borrower shall have good,
indefeasible and merchantable title to and ownership of all of its Assets,
free and clear
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of all liens, claims, security interests and encumbrances, except
the Permitted Liens.
(h) Financial Warranty. Borrower: (i) is now, and at all times
hereafter shall be generally paying its debts as they mature, (ii) now
owns, and shall at all times hereafter own, property which, at a fair
valuation, is greater than the sum of its debt, and (iii) now has, and
shall have at all times hereafter, capital sufficient to carry on its
business and transactions and all businesses and transactions in which it
is about to engage.
(i) Proceedings. There are no actions or proceedings which are
pending or threatened against Borrower which might result in any material
and adverse change in its business, operations, Assets, condition
(financial or otherwise) or its ability to fully perform its obligations
and liabilities under the Loan Documents to which it is a party.
(j) Intentionally Deleted.
(k) Adequate Licenses. Borrower possesses adequate Assets,
licenses, patents, copyrights, trademarks and tradenames to continue to
conduct its business as previously conducted by it and as contemplated in
the foreseeable future except such licenses, patents, copyrights,
trademarks and trade names the failure of which to obtain could not have a
material adverse effect on Borrower's business, operations, Assets,
condition (financial or otherwise) or ability to perform its obligations
under those Loan Documents to which it is a party.
(l) Government Permits; Consents.
(i) Borrower has and is in good standing with respect to all
governmental permits, certificates, consents and
franchises necessary to continue to conduct its business
as previously conducted prior to the date hereof and to
own or lease and operate its properties as now owned or
leased by it. None of said permits, certificates,
consents or franchises contain any term, provision,
condition or limitation more burdensome than such as are
generally applicable to Persons engaged in the same or
similar business as the Borrower.
(ii) Except for the actions of Borrower's Board of Directors
authorizing this Agreement and the related transactions
and documents, Borrower does not require the approval,
consent or waiver by any other Person (including but not
limited to shareholders, partners, members, equity
owners, holders of Indebtedness Instruments, or any
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owner of any lien upon the Assets of any one or more of
them or their Affiliates) for the consummation of the
transactions contemplated herein, including but not
limited to the borrowing of the Loan, and the payment
and performance of all Borrower's Liabilities and
Borrower's Obligations.
(m) Charge; Restrictions. To the best of Borrower's knowledge,
Borrower is not a party to (nor are any of its Assets otherwise subject
to) any contract or agreement or subject to any Charge restriction,
judgment, decree or order materially and adversely affecting its business,
property, assets, operations or condition, financial or otherwise.
(n) Compliance with Laws. To the best of Borrower's knowledge,
Borrower, is not and will not be during the term hereof, in violation of
any applicable statute, regulation, order or ordinance of the United
States of America, of any state, city, town, municipality, county or of
any other jurisdiction, or of any agency thereof, including the Federal
Reserve Board, in any respect materially and adversely affecting its
business, operations, Assets, or condition (financial or otherwise) or its
ability to perform its obligations under those Loan Documents to which it
is a party.
(o) Compliance with Indebtedness Instruments. Borrower is not and
at no time during the term hereof shall be in default under any
Indebtedness Instrument.
(p) Financials. The Financials heretofore delivered by Borrower,
or any other Loan Party to Bank, fairly and accurately present the assets,
liabilities and financial conditions and results of operations of
Borrower, and such other Persons described therein as of and for the
periods ending on such dates and have been prepared in accordance with
generally accepted accounting principles and such principles have been
applied on a basis consistently followed in all material respects
throughout the periods involved.
(q) Taxes. All tax and information returns required to be filed
by or on behalf of Borrower have been properly prepared, executed and
filed. All taxes, assessments, fees and other Charges upon Borrower, or
upon any of its properties, incomes, sales or franchises which are due and
payable have been paid other than those not yet delinquent and payable
without premium or penalty, and except for those being diligently
contested in good faith by appropriate proceedings, and in each case
adequate reserves and provisions for taxes have been made on the books of
Borrower. The reserves and provisions for taxes on the books of Borrower
are adequate for all open years and for its current fiscal period.
Borrower does not know of any
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proposed additional assessment or basis for any material assessment for
additional taxes (whether or not reserved against). The federal, state and
local income tax liabilities of Borrower have been finally determined by
the Internal Revenue Service and other relevant taxing authorities, or the
time for audit has expired, for all fiscal periods ending on or prior to
December 31,1994 and all such liabilities (including all deficiencies
assessed following audit) have been satisfied.
(r) No Adverse Change. There has been no material and adverse
change in the Assets, liabilities or financial condition of Borrower since
the date of the Financials.
(s) No Indebtedness. Except as disclosed in the most recent
Financials heretofore delivered by Borrower to Bank or otherwise disclosed
in writing to Bank, none of Borrower nor any Affiliate has any
Indebtedness (except for Indebtedness arising in the ordinary course of
its business since the dates reflected in the Financials that is not
Indebtedness for borrowed money), has guaranteed or entered into any
Guaranty Equivalent (other than as a result of the endorsement of any
instrument of items of payment for deposit or collection in the ordinary
course of business or as otherwise expressly permitted pursuant to the
terms hereof) the obligations of any Person, and there are no actions or
proceedings which are pending or, to the best of Borrower's knowledge,
threatened against Borrower or any Affiliate which, in any of the
foregoing cases, are reasonably likely to result in any material adverse
change in its financial condition or materially adversely affect its
assets or its ability to fully perform and satisfy its obligations under
the Loan Documents.
(t) Intentionally Deleted.
(u) No Liability on Bank. The execution, delivery and performance
by Borrower and each other Loan Party of this Agreement and/or the Other
Agreements will not, except to the extent caused by independent actions of
Bank, impose on or subject Bank to any liability, whether fixed or
contingent, in respect of any Environmental Law relating to the operation
of Borrower's business. Bank's exercise of any of the rights or remedies
described in this Agreement or in any of the Other Agreements shall not
constitute a breach of any provision contained in any agreement,
instrument or document concerning the assignment or license of, or the
payment of royalties for, any patents, patent rights, tradenames,
trademarks, trade secrets, know-how, copyrights or any other form of
intellectual property now or at any time or times hereafter protected as
such by any applicable law.
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(v) Affiliates. Schedule 5.1(v) attached hereto is a true,
accurate and complete schedule of Borrower's Affiliates, together with a
description of Borrower's relationship to each such Affiliate. Borrower is
not a partner (general or limited) of any partnership, a party to any
joint venture or owns (beneficially or of record) any equity or similar
interest in any Person (including but not limited to any interest pursuant
to which Borrower has or may in any circumstance have an obligation to
make capital contributions to, or be generally liable for or on account of
the liabilities, acts or omissions of such other Person).
(w) Real Property; Environmental Issues. Borrower does not now
own and at no time in the last five (5) years has owned, any real
property. Borrower has not received a summons, citation, notice, or
directive from the Environmental Protection Agency or any other federal or
state governmental agency concerning any action or omission resulting in
the releasing, or otherwise disposing of hazardous waste or hazardous
substances into the environment with respect to any real property.
(x) Investment Company Act and Public Utility Holding Company
Act.. Borrower is not (a) an "investment company" or a company
"controlled" by an investment company within the meaning of the Investment
Company Act of 1940, as amended, (b) a "holding company" or a "subsidiary
company" of a "holding company" or an "affiliate" of either a "holding
company" or a "subsidiary company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended, or (c) subject to any
other law which purports to restrict or regulate the ability to borrow
money or obtain credit.
(y) Intellectual Property. Attached hereto as Schedule 5.1(y) is
a true, accurate and complete list of all United States and foreign
patents, trademarks, tradenames, service marks, copyrights and
applications therefor owned and or used by Borrower (the "INTELLECTUAL
PROPERTY RIGHTS"). Except as set forth on Schedule 5.1(y), the
Intellectual Property Rights are owned by Borrower or Borrower will own or
possess the royalty-free licenses or other rights to use all Intellectual
Property Rights. To the best of Borrower's knowledge, none of the products
or processes used in Borrower's business conflicts with or infringes or
has infringed upon any patents, trademarks, trade names, service marks or
copyrights of any other person or entity; and to the best of Borrower's
knowledge, Borrower has the full right to conduct its business as
heretofore conducted by Borrower, without incurring license fees or
royalty or other payment obligations to any person or entity in respect of
the Intellectual Property Rights.
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(z) WARN. Borrower is now, and at all times during the term or
any renewal term hereof Borrower shall be, in compliance with the Worker's
Adjustment and Retraining Notification Act.
(aa) REG U et al. Borrower warrants and represents to Bank that
Borrower shall use the proceeds of all Loans solely to and for general
corporate purposes and consistently with all applicable laws and statutes.
Borrower's use of the proceeds of any Loan made by Bank are legal and
proper uses (duly authorized by all requisite action of the board of
directors of Borrower), in accordance with applicable laws, rules and
regulations, as in effect from time to time. Borrower's execution and
delivery of this Agreement or any of the other Loan Documents and
Borrower's conduct of its business and use of proceeds of the Loan does
not and will not directly or indirectly violate or result in a violation
of the Securities Exchange Act of 1934, as amended, or Regulations U, G, T
and X of the Board of Governors of the Federal Reserve System (12 CFR 221,
207, 220 and 224, respectively). Borrower further warrants and represents
to Bank and covenants with Bank that Borrower is not in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Loans will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.
(bb) Fiscal Year End. Currently and at all times when Borrower's
Liabilities are outstanding, Borrower's fiscal year will end December 31.
(cc) Disclosure. To the best knowledge of Borrower, neither this
Agreement nor any Loan Document nor any statement, list, certificate or
other document or information, nor any schedules to this Agreement or any
other Loan Document, delivered or to be delivered to Bank, contains or
will contain any untrue statement of a material fact or omits or will omit
to state a material fact necessary to make statements contained herein or
therein, in light of the circumstances in which they are made, not
misleading.
5.2 Reaffirmation of Warranties, Representations and Covenants. Each
request for an Advance made by Borrower pursuant to this Agreement or the Other
Agreements shall constitute (i) an automatic warranty and representation by
Borrower to Bank that there does not then exist an Event of Default or an
Unmatured Default, and (ii) a reaffirmation as of the date of said Borrowing
Request that each and every warranty and representation and covenant of Borrower
contained in this Article 5 and other sections of this Agreement and in the
Other Agreements, is true and correct in all material respects, except where
such representation or warranty specifically relates to an earlier date.
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5.3 Survival of Warranties and Representations. Borrower covenants,
warrants and represents to Bank that all representations and warranties of
Borrower contained in this Agreement and the Other Agreements shall be true on
the date hereof, and shall survive the execution, delivery and acceptance hereof
and thereof by the parties thereto and the closing of the transactions described
herein and therein or related hereto or thereto. Unless expressly limited by the
terms of this Article 5, each representation and warranty shall be deemed to be
remade concurrently with each Advance hereunder.
6. COVENANTS AND CONTINUING AGREEMENTS.
6.1 Financial Covenants. Borrower shall, at all times during the term
hereof, measured quarterly:
(a) maintain a ratio of total liabilities (less deferred revenue)
to Tangible Net Worth of less than 1.35 to 1;
(b) maintain a ratio of (i) current assets to (ii) current
liabilities minus deferred revenue of greater than 1.5 to 1; and
(c) maintain Tangible Net Worth greater than the applicable
amount below from and after each of the dates identified below:
June 30, 2000 $38,000,000
May 31, 2001 $43,000,000
May 31, 2002 $48,000,000
May 31, 2003 $52,000,000
All covenants set forth herein shall be measured quarterly, upon receipt of the
statements delivered to Bank pursuant to Section 6.2(c)(iii) or the annual
consolidated financial statements delivered in accordance with Section
6.2(c)(i), if available.
6.2 Affirmative Covenants. Borrower warrants and represents to and
covenants with Bank that Borrower shall, unless Bank otherwise consents thereto
in writing, do all of the following during the term hereof:
(a) Representation and Warranties. To the extent any
representation or warranty contained herein refers to an event or state of
facts which exists on the date hereof and shall exist during the term
hereof or at the time of each Advance hereunder, said representation or
warranty shall be deemed to be an affirmative covenant of Borrower to take
all actions, omit to take such actions or cause such actions to be taken
which shall be necessary or desirable to cause such representation or
warranty to
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be true and accurate at all times during the term hereof. To the extent
any representation, warranty or covenant herein (including the negative
covenants set forth in Section 6.3) relates to any other Person, it shall
be deemed to be a covenant of Borrower to cause such Person to comply with
or otherwise perform such representation, warranty or covenant, whether or
not Borrower has the legal, corporate or other ability to cause such
compliance or performance.
(b) Corporate Existence. Borrower shall preserve and maintain its
corporate existence, rights, privileges and franchises in the jurisdiction
of its incorporation or organization, and qualify and remain qualified to
do business in each other jurisdiction in which such qualification is
necessary in view of its business or operations, except such jurisdictions
where failure to qualify would not have a material adverse effect on
Borrower's, business, Assets, operations, condition (financial or
otherwise) or ability to perform its obligations under the Loan Documents.
(c) Records; Reports. Borrower covenants with Bank that Borrower
shall keep Records and prepare financial statements and shall cause to be
furnished to Bank the following (all of the foregoing and following which
comprise financial statements are to be kept and prepared in accordance
with GAAP applied on a basis consistent with the Financials unless
Borrower's certified public accountants concur in any changes therein and
such changes are consistent with then applicable GAAP).
(i) As soon as available but not later than ninety (90) days
after the close of each fiscal year of Borrower, a
balance sheet of Borrower as at the end of such year,
the related statement of operations (including income
statement) for such year and a reconciliation of capital
for such year, all certified on an unqualified basis by
a firm of independent certified public accountants
selected by Borrower and acceptable to Bank, in Bank's
sole and absolute discretion.
(ii) As soon as available but not later than forty-five (45)
days after the end of each calendar quarter hereafter, a
balance sheet of Borrower as at the end of, and the
related statement of operations for, both such calendar
quarter and the portion of such Borrower's fiscal year
then elapsed, all reviewed by a firm of independent
certified public accountants selected by Borrower and
acceptable to Bank, in Bank's sole and absolute
discretion.
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(iii) Concurrently with delivery to its shareholders, copies
of all financial and other information delivered by
Borrower to such Persons, including without limitation,
its proxy statements and annual reports to stockholders.
Concurrently with delivery to the SEC by Borrower,
copies of all reports filed by Borrower with the SEC,
including without limitation, all reports on Forms 10K,
10Q or 8K promulgated under the Securities Exchange Act
of 1934, as amended.
(iv) Concurrently with delivery of the Financials required
pursuant to Sections 6.2(c)(i) and (ii) hereof, a
certificate executed by the President, Treasurer or
Chief Financial Officer of Borrower that such Financials
present fairly the financial position and results of
operations of Borrower for the applicable period, and
that no Event of Default or Unmatured Default has
occurred and is continuing (including but not limited to
compliance with the covenants set forth in Section 6.1)
or if an Event of Default or Unmatured Default has
occurred, setting forth the details of such event and
the action which Borrower proposes to take with respect
thereto.
(v) In satisfaction of Borrower's obligation to deliver to
Bank the items identified at (i), (ii) and (iii) above,
Borrower's executive officer's certificate to be
delivered to Bank pursuant to (iv) above may itemize
those Financials, shareholder information and SEC
filings which at the relevant dates are available in
full text on the world wide web; provided that such
executive officer's certificate shall identify the world
wide web location of all documents that are not SEC
filings available in full text in a timely fashion in
the ▇▇▇▇▇ database located at ▇▇▇.▇▇▇.▇▇▇. All of the
foregoing information that Bank expressly requests,
together with all other information required to be
delivered to Bank pursuant to (I), (ii) and (iii) above,
shall be delivered to Bank by Borrower in paper form.
(vi) Such other data and information (financial and
otherwise) as Bank, from time to time, reasonably may
request bearing upon or related to Borrower's financial
condition and/or results of operations.
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(d) Insurance. Borrower, at its sole cost and expense, shall keep
and maintain: (i) policies of insurance against all hazards and risks
ordinarily insured against by others in similar business or as reasonably
requested in writing by Bank; and (ii) public liability insurance relating
to Borrower's ownership and use of its Assets. All such policies of
insurance shall be in form, with insurers and in such amounts as may be
satisfactory to Bank. Promptly upon Bank's request, Borrower shall deliver
to Bank the original (or certified) copy of each policy of insurance, and
evidence of payment of all premiums for each such policy. Such policies of
insurance (except those of public liability) shall contain an endorsement,
in form and substance acceptable to Bank, showing losses payable to Bank.
Such endorsement or an independent instrument furnished to Bank, shall
provide that all insurance companies will give Bank at least thirty (30)
days prior written notice before any such policy or policies of insurance
shall be altered or canceled and that no act or default of Borrower or any
other Person shall affect the right of Bank to recover under such policy
or policies of insurance in case of loss or damage. Borrower hereby
directs all insurers under such policies of insurance (except those of
public liability) following an Event of Default to pay all proceeds
payable thereunder directly to Bank. Following an Event of Default,
Borrower, irrevocably, appoints Bank (and all officers, employees or
agents designated by Bank) as Borrower's true and lawful agent and
attorney-in-fact for the purpose of making, settling and adjusting claims
under such policies of insurance, endorsing the name of Borrower on any
check, draft, instrument or other item of payment for the proceeds of such
policies of insurance and for making all determinations and decisions with
respect to such policies of insurance. In the event Borrower at any time
or times hereafter shall fail to obtain or maintain any of the policies of
insurance required above or to pay any premium in whole or in part
relating thereto, then Bank, without waiving or releasing any of
Borrower's Obligations or Borrower's Liabilities or any Event of Default
or Unmatured Default hereunder, may at any time or times thereafter (but
shall be under no obligation to do so) obtain and maintain such policies
of insurance and pay such premium and take any other action with respect
thereto which Bank deems advisable. All sums so disbursed by Bank,
including reasonable attorneys' fees, court costs, expenses and other
charges relating thereto, shall be part of Borrower's Liabilities, payable
by Borrower to Bank on demand. The Bank shall also have been named as an
additional insured with respect to Borrower's liability insurance.
(e) Payment of Charges. Borrower shall pay promptly, when due,
all Charges and Borrower, shall not permit the Charges to arise or to
remain unpaid, and will promptly discharge the same. In the event
Borrower, at any time or times hereafter, shall fail to pay the Charges or
to obtain such discharges as required herein, Borrower promptly shall so
advise Bank thereof in writing. Bank may, without waiving or releasing any
of
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Borrower's Obligations or Borrower's Liabilities or any Event of Default
or Unmatured Default hereunder, in its sole and absolute discretion, at
any time or times thereafter, make such payment, or any part thereof, or
obtain such discharge and take any other action with respect thereto which
Bank deems advisable. All sums so paid by Bank and any expenses, including
reasonable attorneys' fees, court costs, expenses and other charges
relating thereto, shall be part of Borrower's Liabilities, payable by
Borrower to Bank on demand. Notwithstanding the foregoing, Borrower, may
permit or suffer the Charges to attach to its Assets and may dispute,
without prior payment thereof, the Charges, on the conditions that: (i)
Borrower in good faith, shall be contesting the same in an appropriate
proceeding diligently pursued; (ii) enforcement thereof against any Assets
of Borrower shall be stayed; and (iii) appropriate reserves therefor shall
have been established on the Records of Borrower in accordance with GAAP.
(f) Pay Debts. Borrower shall pay or discharge or otherwise
satisfy all Indebtedness at or before maturity or before the same becomes
delinquent; provided that Borrower shall not be required to pay any
Indebtedness while the same is being contested by it in good faith and by
appropriate proceedings so long as Borrower shall have set aside on its
books reserves in accordance with GAAP with respect thereto and title to
any property of Borrower is not jeopardized.
(g) Compliance with Laws. Borrower shall comply with all laws,
rules, regulations and governmental orders (federal, state and local),
including all Environmental Laws, having applicability to it or to the
business or businesses at any time conducted by it, where the failure to
so comply would have a material adverse effect, either individually or in
the aggregate, on the business, Assets, operations, condition (financial
or otherwise) or its ability to perform its obligations under the Loan
Documents.
(h) Perform Obligations. Borrower shall duly and punctually pay
and perform each of its obligations under this Agreement and the Other
Agreements in accordance with the terms thereof.
(i) Operating and Disbursement Accounts. Borrower shall maintain
all of its general operating accounts and primary disbursement accounts at
Bank. Schedule 6.2(i) sets out all depository, investment and other
accounts maintained by Borrower with financial institutions and/or brokers
other than Bank. Borrower promptly shall deliver an amended Schedule
6.2(i) to Bank reflecting each addition to and deletion of such accounts.
6.3 Negative Covenants. Borrower warrants and represents to and
covenants with Bank that Borrower shall not, without Bank's prior written
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consent, which Bank may or may not give in its sole and absolute discretion,
concurrently or hereafter do any of the following:
(a) Sell or Encumber Assets. Borrower, shall not assign, sell or
transfer any of its Assets to any Person, other than in the ordinary
course of business, nor permit, grant, or suffer a security interest,
lien, claim or encumbrance upon any of its Assets, except the Permitted
Liens.
(b) Attachment. Borrower, shall not permit or suffer any levy,
attachment or restraint to be made affecting any of its Assets;
(c) Receiver. Borrower, shall not permit or suffer any receiver,
trustee or assignee for the benefit of creditors, or any other custodian
to be appointed to take possession of all or any of its Assets.
(d) Amend Organizational Documents; Business Objectives.
Borrower, shall not make any change: (i) in its Organic Documents or
capital structure; or (ii) in any of its business objectives, purposes and
operations, including by undertaking additional business activities.
Borrower shall not engage in any business not of the same general type as
those conducted by it on the date hereof.
(e) Mergers and Acquisitions. Neither Borrower nor any Subsidiary
shall liquidate, dissolve, enter into any merger, consolidation,
partnership, joint venture or other combination, except that any Person
which is in the general line of business of Borrower may merge into or
with or be acquired by Borrower or any Subsidiary, provided that Borrower
or such Subsidiary, as applicable, shall be the continuing or surviving
entity.
(f) Adverse Transactions. Borrower, shall not enter into any
transaction which materially and adversely affects its ability to perform
its obligations under the Loan Documents or to pay any other Indebtedness.
(g) Investments. Borrower shall not make any investment in the
Stock, other equity interests in, or obligations of any Person; provided
that in connection with Borrower's management of its cash on a short-term
basis in the ordinary course of business Borrower may invest in
obligations of other Persons that are cash or cash equivalents and
provided that Borrower may create new Subsidiaries of which Borrower is
the 100% owner of all equity interests.
(h) Loan; Guaranty Debt. Borrower shall not make any loan to any
Person. Borrower has not entered into and shall not enter into any
Guaranty Equivalents.
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(i) Borrow Indebtedness; Pay Indebtedness. Other than amounts
loaned by Bank to Borrower hereunder, Borrower shall not incur any
Indebtedness for borrowed money in excess on $1,000,000 of unsecured
borrowings in the aggregate outstanding at any one time. Except in the
ordinary course of business, Borrower, shall not defease, prepay, repay,
purchase, redeem or otherwise acquire any of its Indebtedness for borrowed
money.
(j) Issue Power of Attorney. Except pursuant to this Agreement
and the Other Agreements, Borrower, shall not issue any power of attorney
or other contract or agreement giving any Person power or control over the
day-to-day operations of Borrower's, business, other than in connection
with Permitted Liens or Indebtedness expressly permitted pursuant to the
terms of this Agreement.
(k) Amendment of Credit Agreements. Except in the ordinary course
of business, Borrower shall not amend, modify or extend any note, credit
agreement, security agreement or other document, instrument of agreement
evidencing or securing Indebtedness of Borrower, without in each case
Bank's prior written consent.
6.4 Required Notices.
(a) In addition to those notices required elsewhere in this Agreement,
Borrower shall notify Bank promptly after obtaining knowledge of:
(i) except as otherwise previously disclosed in writing to Bank,
any event or occurrence which Borrower has determined has
caused a material loss or decline in value of Borrower's,
Assets due to casualty or any other adverse occurrence and the
estimated (or actual, if available) amount of such loss or
decline;
(ii) the institution of any suit or administrative proceeding
which, if determined adversely to Borrower, is reasonably
likely to materially adversely affect the operations,
financial condition or business of Borrower;
(iii) Borrower, becoming subject to any Charge, restriction,
judgment, decree or order which could materially and adversely
affect Borrower's business, operations, Assets, condition
(financial or otherwise) or ability to perform its respective
obligations under the Loan Documents.
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(iv) the commencement of any lockout, strike or walkout relating to
any labor contract to which Borrower is a party;
(v) except as otherwise previously disclosed, any event or
occurrence which Borrower has determined will have a material
adverse affect on the ability of any obligor of a Pledged Note
to repay the Note;
(vi) the occurrence of a default by Borrower, under any agreement,
document or instrument to which it is a party which could
materially and adversely affect its business, operations,
Assets, condition (financial or otherwise) or ability to
perform its respective obligations under the Loan Documents;
(vii) the filing of a petition under any section or chapter of the
United States Bankruptcy Code or any similar law or regulation
shall be filed by or against Borrower or Borrower shall make
an assignment for the benefit of its creditors or if any case
or proceeding is filed by or against Borrower for its
dissolution or liquidation;
(viii) the making of an application for the appointment of a
receiver, trustee or custodian for any of the assets of
Borrower;
(ix) as soon as possible and in any event within five (5) days
after Borrower shall have obtained knowledge of the occurrence
of an Event of Default or Unmatured Default, the written
statement of the chief financial officer of Borrower setting
forth the details of such event and the action which Borrower
proposes to take with respect thereto; and
(x) the exercise of any holder of any option, warrant or right to
purchase any equity interest in Borrower, other than the
exercise of rights disclosed in Section 5.1(e).
6.5 Payment of Claims. Bank, in its sole and absolute discretion,
without waiving or releasing any of Borrower's Liabilities or Borrower's
Obligations or any Event of Default or Unmatured Event of Default, may at any
time or times hereafter, but shall be under no obligation to, pay, acquire
and/or accept an assignment of any security interest, lien, encumbrance or claim
asserted by any Person against the Assets of Borrower. All sums paid by Bank in
respect thereof and all reasonable Costs relating thereto incurred by Bank or
for which Bank
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becomes obligated on account thereof shall be part of Borrower's Liabilities
payable by Borrower to Bank on demand and any amount not paid on demand shall
bear interest at the Default Rate.
6.6 Year 2000 Compliance.
(a) Borrower is currently reviewing its computer and management
information systems to determine whether they are adequate for the conduct
of Borrower's business as presently conducted and as proposed to be
conducted and Borrower is actively addressing all known material
requirements for systems integration, upgrade and replacement, and
Borrower covenants and agrees promptly to notify Bank in writing of any
facilities or software inadequacies that could reasonably be expected to
have a material adverse effect on the business of the Borrower.
(b) The Borrower, will be Year 2000 Compliant on or before
March 31, 1999 and at all times thereafter. As used in the preceding
sentence, "YEAR 2000 COMPLIANT" means the ability of the software and
other information processing capabilities of Borrower to correctly
interpret and process all data in whatever form so as to avoid errors that
may otherwise occur because of the inability of software or other
information processing capabilities to recognize accurately the year 2000
or subsequent dates.
(c) Any reprogramming required to permit the proper functioning
of the computer and management information systems of the Borrower during
and following the year 2000 will be completed by March 31, 1999 and the
cost of such reprogramming is not expected to have a material adverse
effect on the business of the Borrower.
6.7 Public Offering. Notwithstanding anything to the contrary contained
herein, Borrower shall have the right to publicly offer and sell equity or debt
Securities of Borrower under the following terms and conditions: (i) Borrower
shall deliver notice to Bank, not less than twenty-four (24) hours prior to any
filing with respect to such offering with the SEC; (ii) Borrower shall fully and
timely comply with all Securities Laws and with all terms and provisions of the
underwriting agreement pursuant to which such Securities are offered for sale;
(iii) the prospectus and all other selling materials used by Borrower in such
offering shall not contain any misstatement of material fact or omit to state
any fact which would render the statements contained therein false or
misleading, and (iv) Borrower shall pay the net proceeds of such offering to
Bank, in accordance with the terms hereof. Bank shall have the right, in Bank's
sole and exclusive discretion to apply the net proceeds of such offering to the
Secured Obligations then due and owing, in such order of priority, as Bank, in
its sole discretion shall
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elect. Any amount applied to principal shall reduce the Maximum Principal Amount
under this Agreement and may not be reborrowed.
7. DEFAULT
7.1 Events of Default. The occurrence of any one of the following events
shall constitute a default ("EVENT OF DEFAULT") under this Agreement:
(a) If Borrower fails or neglects to perform, keep or observe any
of Borrower's Obligations and the same is not cured within thirty (30)
days after such default or, if such default is not susceptible to cure
within thirty (30) days, then within ninety (90) days so long as Borrower
is actively taking all commercially reasonable measures to cure the same;
provided that all failures, if any, to timely pay Borrower's Liabilities
are governed by (c) below and that a breach of any of the provisions,
terms, conditions or covenants contained in Sections 6.2(d), 6.3 and 6.4
shall automatically be an Event of Default without any notice or cure
period;
(b) If any representation, warranty or material statement, report
or certificate made or delivered by Borrower, or any of its directors,
officers, authorized employees or agents, to Bank is not true and correct;
(c) If Borrower fails to pay any of Borrower's Liabilities, when
due and payable or declared due and payable and the same is not cured
within five (5) days, provided however, that Interest shall accrue at the
Default Rate commencing immediately after non-payment;
(d) If Borrower shall be in default under the terms of any
Indebtedness Instrument, other than the Loan Documents;
(e) If Borrower fails or neglects to perform, keep or observe any
of Borrower's Obligations contained in Section 6.2(e) and the same is not
cured within ten (10) days after Bank gives Borrower notice of such
default;
(f) If any of Borrower's Assets or any portion thereof are
attached, seized, subjected to a writ of distress warrant, or are levied
upon, or come within the possession of any receiver, trustee, custodian or
assignee for the benefit of creditors and the same is not terminated or
dismissed within forty-five (45) days thereafter;
(g) If a petition under any section or chapter of the United
States Bankruptcy Code or any similar law or regulation shall be filed by
Borrower, or if Borrower shall make an assignment for the benefit of its
creditors or if any case or proceeding is filed by Borrower for its
dissolution or liquidation;
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(h) If Borrower is enjoined, restrained or in any way prevented
by court order from conducting all or any material part of its business
affairs or if a petition under any section or chapter of the United States
Bankruptcy Code or any similar law or regulation is filed against Borrower
or if any case or proceeding is filed against Borrower for its dissolution
or liquidation and such injunction, restraint or petition is not dismissed
or stayed within forty-five (45) days after the entry or filing thereof;
(i) If an application is made by Borrower for the appointment of
a receiver, trustee or custodian for any of its assets;
(j) If an application is made by any Person other than Borrower
for the appointment of a receiver, trustee, or custodian for any of the
Assets of Borrower and the same is not dismissed within forty-five (45)
days after the application therefor;
(k) Except as expressly permitted pursuant to Section 6.2(e), (i)
if a notice of any Charge is filed of record with respect to all or any of
Borrower's Assets, or (ii) if any Charge becomes a lien or encumbrance
upon any of its assets and the same is not released within forty-five (45)
days after the same becomes a lien or encumbrance;
(l) The occurrence of an Event of Default under any of the Other
Agreements, which is not cured within the time, if any, specified therefor
in such Other Agreement;
(m) If any final non-appealable judgment for the payment of money
in excess of $1,000,000 (after giving effect to any amount covered by
insurance as to which the insurer shall not have defied or questioned its
obligation to pay) shall be rendered against Borrower and the same shall
remain undischarged for a period of thirty (30) days during which
execution shall not be effectively stayed or diligently contested in good
faith by appropriate proceedings;
(n) If Borrower or any ERISA Affiliate (i) shall effect a
complete or partial withdrawal (as defined in ERISA Sections 4203 or 4205)
from a Multiemployer Plan, if such withdrawal could subject either
Borrower or any ERISA Affiliate to liability; (ii) shall fail to pay when
due an amount that is payable by it to the PBGC or to an Employee Benefit
Plan; (iii) has instituted against it by a fiduciary of any Multiemployer
Plan an action to enforce ERISA Section 515 and such proceedings shall not
have been dismissed within thirty (30) days thereafter; (iv) has imposed
against it any tax under Code Section 4980B(a); (v) has assessed against
it by the Secretary of Labor a civil penalty with respect to any Employee
Benefit Plan under ERISA Section 502(c) or 502(l); (vi) shall apply for a
waiver of the minimum funding standards of the Code; or (vii) shall permit
any other event or
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condition to occur or exist with respect to an Employee Benefit Plan that
could subject either Borrower or any ERISA Affiliate to liability;
(o) Except as set forth in Section 7.1(d) or (e), a default by
Borrower shall occur under any agreement, document or instrument (other
than this Agreement or any of the other Loan Documents) now or hereafter
existing, to which Borrower is a party and the effect of such default is
reasonably likely to have a material adverse effect on the financial
conditions or business operations of such Loan Party; and
(p) If Borrower dissolves, liquidates or fails to maintain its
corporate existence, without the prior written consent of Bank.
7.2 Remedies Cumulative. All of Bank's rights and remedies under this
Agreement and the Other Agreements are cumulative and non-exclusive.
7.3 Acceleration. Upon the occurrence an Event of Default and the
continuation thereof, without notice by Bank to or demand by Bank to Borrower,
Bank shall have no further obligation to and may then forthwith cease advancing
monies, extending credit or issuing letters of credit to or for the benefit of
Borrower under this Agreement and the Other Agreements. Upon an Event of
Default, without notice by Bank to or demand by Bank to Borrower, all Borrower's
Liabilities shall be due and payable, forthwith.
7.4 Remedies. Upon the occurrence of an Event of Default and the
continuation thereof, Bank, in its sole and absolute discretion, may exercise
any and all rights and remedies that it may have under the other Loan Documents,
at law or in equity.
7.5 Injunctive Relief. Borrower recognizes that upon the occurrence of
an Event of Default, no remedy of law will provide adequate relief to Bank, and
agrees that Bank shall be entitled to temporary and permanent injunctive relief
in any such case without the necessity of proving actual damages.
7.6 Advances During Unmatured Default. Upon the occurrence of any
Unmatured Default or Event of Default, Bank shall not be obligated to make any
Advances; provided that, nothing contained herein shall prohibit Bank from
making any Advances.
8. CONDITIONS PRECEDENT TO DISBURSEMENT
8.1 Checklist Items. The obligation of Bank to make the Loan to Borrower
is subject to the condition precedent that, in addition to satisfaction of the
conditions set forth in Sections 8.2 and 8.3, Bank shall have received, prior to
the first disbursement of the proceeds of any of the Loan hereunder all
documents, instruments, agreements, notes, evidences of Borrower's authority,
and all other
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instruments as Bank may reasonably request, including but not limited to all
items on the documentation checklist, delivered by Bank to Borrower prior to the
date hereof.
8.2 Necessary Actions. The obligation of Bank to make the Loan to
Borrower is subject to the further condition precedent that all proceedings
taken in connection with the transactions contemplated by this Agreement, and
all instruments, authorizations and other documents applicable thereto, shall be
reasonably satisfactory in form and substance to Bank and its counsel.
8.3 Conditions Precedent. In addition to the foregoing, prior to Bank
making any and all Loans hereunder, all of the following shall have been
satisfied in a manner satisfactory to Bank:
(a) no change in the condition or operations, financial or
otherwise, of Borrower shall have occurred which change, in the sole
credit judgment of Bank, may have a material adverse effect on Borrower;
(b) no litigation shall be outstanding or have been instituted or
threatened which Bank determines to be material against Borrower;
(c) all of the representations and warranties of Borrower set
forth in this Agreement and each of the Other Agreements to which Borrower
is a party shall be true and correct on the date of the contemplated Loan
to the same extent as originally made on such date; and
(d) no Event of Default or Unmatured Default shall exist or be
continuing.
9. GENERAL
9.1 ERISA Matters.
(a) Representations and Warranties. Borrower hereby represents
and warrants and covenants and agrees that:
(i) There are no Employee Benefit Plans maintained or sponsored by
or participated in or contributed to by Borrower or any of its
Subsidiaries or other Affiliates or to which Borrower or any
of its Subsidiaries or other Affiliates have any obligations ;
and
(ii) Borrower shall not, and shall not permit any of its
Subsidiaries or other Affiliates to establish, maintain,
contribute to or otherwise be or become obligated with respect
to one or more Employee Benefit Plans without
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first receiving the prior written consent of Bank, which Bank
may grant or withhold in its sole and absolute discretion.
(b) Definitions. For purposes of this Section 9.1, the following
definitions shall apply:
(i) "CODE" shall mean the Internal Revenue Code of 1986, as
amended.
(ii) "EMPLOYEE BENEFIT PLAN" shall mean an employee benefit plan
within the meaning of Section 3(3) of ERISA that is
maintained, sponsored, participated in or contributed to by
Borrower or any ERISA Affiliate.
(iii) "ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, or any successor
thereto.
(iv) "ERISA AFFILIATE" shall mean any corporation, trade or
Business that is, along with Borrower, a member of a
controlled group of trades or businesses, or a member of any
group of organizations, within the meaning of Sections 414(b),
(c), (m) or (o) of the Code, and any regulations thereunder.
9.2 Costs/Service Charges. Borrower hereby agrees that it shall
reimburse Bank on demand, as part of Borrower's Obligations, for any and all
Costs and any amount not paid on demand shall bear interest at the Default Rate.
Borrower acknowledges that Bank will charge Borrower monthly service charges for
various services performed by Bank in connection with the Loan and/or any other
aspect of the relationship between Borrower and Bank, which charges shall be
such as are generally imposed on customers of Bank for similar services.
Borrower hereby agrees that Bank may charge such service charges against
Borrower's operating account at Bank, or in the absence of sufficient collected
balances in such operating account to satisfy such service charges, the amount
thereof shall become a Loan hereunder bearing interest at the Prime Interest
Rate.
9.3 Statement. Each statement of account by Bank delivered to Borrower
relating to Borrower's Liabilities shall be presumed correct and accurate and
shall constitute an account stated between Borrower and Bank unless Bank
subsequently corrects such statement of its own volition or, within thirty (30)
days after Borrower's receipt of said statement, Borrower delivers to Bank, by
registered or certified mail addressed to Bank at the address specified in
Section 9.4, written objection thereto specifying the error or errors, if any,
which Borrower asserts are contained in any such statement.
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9.4 Notices. Any and all notices given in connection with this Agreement
shall be deemed adequately given only if in writing (which term "writing", for
all purposes of this Agreement and the other Loan Documents, shall include
original signatures and other writings transmitted by telecopy) and addressed to
the party for whom such notices are intended at the address set forth below. All
notices shall be sent by personal delivery, Federal Express or other over-night
messenger service, first class registered or certified mail, postage prepaid,
return receipt requested or by other means at least as fast and reliable as
first class mail. A written notice shall be deemed to have been given to the
recipient party on the earlier of (a) the date it shall be delivered to the
address required by this Agreement; (b) the date delivery shall have been
refused at the address required by this Agreement; or (c) with respect to
notices sent by mail, the date as of which the postal service shall have
indicated such notice to be undeliverable at the address required by this
Agreement. Any and all notices referred to in this Agreement, or which either
party desires to give to the other, shall be addressed as follows:
IF TO BORROWER: SPSS, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
IF TO BANK: American National Bank and Trust Company of
Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
WITH A COPY TO: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Ltd.
▇▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq. and
▇▇▇▇▇▇▇ Jared, Esq.
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
The above addresses may be changed by notice of such change, mailed as provided
herein, to the last address designated.
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9.5 Amendments and Waivers. This Agreement and the other Loan Documents
may not be modified, altered or amended except by an agreement in writing signed
by Borrower and Bank. Borrower expressly agrees that for purposes of this
Agreement and each and every other Loan Document: (i) this Agreement and each
and every other Loan Document shall be a "credit agreement" under the Illinois
Credit Agreements Act, 815 ILCS 160/1 et. seq. (the "ACT"); (ii) the Act applies
to this transaction including, but not limited to, the execution of this
Agreement and each and every other Loan Document; and (iii) any action on or in
any way related to this Agreement and each and every other Loan Document shall
be governed by the Act. Borrower may not sell, assign or transfer this Agreement
or the Other Agreements or any portion thereof, including, without limitation,
Borrower's rights, titles, interests, remedies, powers and/or duties hereunder
or thereunder. Borrower hereby consents to Bank's sale, assignment, transfer or
other disposition, at any time and from time to time hereafter, of this
Agreement or the Other Agreements, or of any portion thereof or participation
therein, including, without limitation, Bank's rights, titles, interests,
remedies, powers and/or duties.
9.6 No Implied Waiver; Remedies Cumulative. Bank's failure at any time
or times hereafter to require strict performance by Borrower of any provision of
this Agreement or any other Loan Document shall not waive, affect or diminish
any right of Bank thereafter to demand strict compliance and performance
therewith. Any suspension or waiver by Bank of an Event of Default or an
Unmatured Default by Borrower or any other Loan Party under this Agreement or
the Other Agreements shall not suspend, waive or affect any other Event of
Default or Unmatured Default by Borrower or any other Loan Party under this
Agreement or the Other Agreements, whether the same is prior or subsequent
thereto and whether of the same or of a different type. None of the
undertakings, agreements, warranties, covenants and representations of Borrower
contained in this Agreement or the Other Agreements and no Event of Default or
Unmatured Default by Borrower or any other Loan Party under this Agreement or
the Other Agreements shall be deemed to have been suspended or waived by Bank
unless such suspension or waiver is by an instrument in writing signed by an
officer of Bank and directed to Borrower or such applicable other Loan Party
specifying such suspension or waiver.
9.7 Severability. If any provision (in whole or in part) of this
Agreement or the other Loan Documents or the application thereof to any person
or circumstance is held invalid or unenforceable, then such provision shall be
deemed modified, restricted, or reformulated to the extent and in the manner
necessary to render the same valid and enforceable, or shall be deemed excised
from this Agreement or the other Loan Document, as the case may require, and
this Agreement and such other Loan Document shall be construed and enforced to
the maximum extent permitted by law, as if such
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provision had been originally incorporated herein as so modified, restricted, or
reformulated or as if such provision had not been originally incorporated herein
or therein, as the case may be. The parties further agree to seek a lawful
substitute for any provision found to be unlawful. If such modification,
restriction or reformulation is not reasonably possible, the remainder of this
Agreement and the other Loan Documents and the application of such provision to
other persons or circumstances will not be affected thereby and the provisions
of this Agreement and the other Loan Documents shall be severable in any such
instance.
9.8 Incorporation of Other Loan Documents.
(a) The provisions of the Other Agreements are incorporated in
this Agreement by this reference thereto. Except as otherwise provided in
this Agreement and except as otherwise provided in the Other Agreements by
specific reference to the applicable provision of this Agreement, if any
provision contained in this Agreement is in conflict with, or inconsistent
with, any provision in the Other Agreements or the other Loan Documents,
Bank shall have the right to elect, in its sole and absolute discretion,
which provision shall govern and control. Except to the extent provided to
the contrary in this Agreement and in the other Loan Documents, no
termination or cancellation (regardless of cause or procedure) of this
Agreement or the Other Agreements shall in any way affect or impair the
powers, obligations, duties, rights and liabilities of Borrower or Bank in
any way or respect relating to (a) any transaction or event occurring
prior to such termination or cancellation, and/or (b) any of the
undertakings, agreements, covenants, warranties and representations of
Borrower contained in this Agreement or the Other Agreements. All such
undertakings, agreements, covenants, warranties and representations shall
survive such termination or cancellation.
(b) This Agreement amends and restates in its entirety the
Existing Loan Agreements, and constitutes an amendment, consolidation,
restatement, and substitution therefor. Nothing contained herein shall be
deemed to be a repayment, satisfaction, release or novation of the
Borrower's Liabilities or Borrower's Obligations under the Existing Loan
Agreement, all such liabilities, obligations and indebtedness are
continuing and a full force and effect.
(c) Waiver of Claims. Borrower hereby acknowledges, agrees and
affirms that it possesses no claims, defenses, offsets, recoupment or
counterclaims of any kind or nature against or with respect to the
enforcement of the Existing Loan Agreements or any other Loan Document or
any amendments thereto (collectively, the "CLAIMS"), nor does Borrower now
have knowledge of any facts that would or might give rise to any Claims.
If facts now exist which would or could give rise to any Claim against or
with respect to the enforcement of the Existing Agreement or any
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other Loan Document, as may have been amended by the amendments thereto,
Borrower hereby unconditionally, irrevocably and unequivocally waives and
fully releases any and all such Claims as if such Claims were the subject
of a lawsuit, adjudicated to final judgment from which no appeal could be
taken and therein dismissed with prejudice.
9.9 Acceptance. This Agreement and the other Loan Documents are
submitted by Borrower to Bank (for Bank's acceptance or rejection thereof) at
Bank's principal place of business as an offer by Borrower to borrow monies from
Bank now and from time to time hereafter and shall not be binding upon Bank or
become effective until and unless accepted by Bank, in writing, at said place of
business. If so accepted by Bank, this Agreement and the other Loan Documents
and the other Loan Documents shall be deemed to have been made at said place of
business.
9.10 Knowledge. As used herein the phrase "TO THE BEST OF BORROWER'S
KNOWLEDGE" or words of such import shall mean all knowledge, including, actual
knowledge and knowledge of matters which any reasonable person in such position
knew or should have known, of the respective officers, directors and managers of
Borrower.
9.11 Waiver by Borrower. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS
AGREEMENT OR REQUIRED BY LAW, BORROWER WAIVES (A) PRESENTMENT, DEMAND AND
PROTEST, NOTICE OF PROTEST, NOTICE OF PRESENTMENT, DEFAULT, NON-PAYMENT,
MATURITY, RELEASE, COMPROMISE, SETTLEMENT, EXTENSION OR RENEWAL OF ANY OR ALL
COMMERCIAL PAPER, ACCOUNTS, CONTRACT RIGHTS, DOCUMENTS, INSTRUMENTS, CHATTEL
PAPER AND GUARANTIES AT ANY TIME HELD BY BANK ON WHICH BORROWER MAY IN ANY WAY
BE LIABLE; (B) ALL RIGHTS TO NOTICE AND A HEARING PRIOR TO BANK'S TAKING
POSSESSION OR CONTROL OF, OR TO BANK REPLEVY, ATTACHMENT OR LEVY UPON THE
COLLATERAL OR ANY BOND OR SECURITY WHICH MIGHT BE REQUIRED BY ANY COURT PRIOR TO
ALLOWING BANK TO EXERCISE ANY OF BANK'S REMEDIES; AND (C) THE BENEFIT OF ALL
VALUATION, APPRAISEMENT, EXTENSION AND EXEMPTION LAWS.
9.12 Governing Law. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS HAVE
BEEN DELIVERED FOR ACCEPTANCE BY BANK IN CHICAGO, ILLINOIS AND SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO THE
CONFLICTS OF LAW PROVISIONS) OF THE STATE OF ILLINOIS AS TO INTERPRETATION,
ENFORCEMENT, VALIDITY, CONSTRUCTION, EFFECT AND IN ALL OTHER RESPECTS INCLUDING,
BUT NOT LIMITED TO, THE LEGALITY OF THE INTEREST RATE AND OTHER CHARGES. TO THE
EXTENT PERMITTED BY APPLICABLE LAW, BORROWER HEREBY (A) IRREVOCABLY SUBMITS TO
THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN CHICAGO, ILLINOIS OVER
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ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY MATTER ARISING FROM OR RELATED
TO THIS AGREEMENT; (B) IRREVOCABLY WAIVES THE DEFENSE OF AN INCONVENIENT FORUM
TO THE MAINTENANCE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT; (C)
AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT
SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY OTHER JURISDICTIONS BY SUIT ON
THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW; AND (D) AGREES NOT TO
INSTITUTE OR MAINTAIN ANY LEGAL ACTION OR PROCEEDING AGAINST BANK OR ANY OF
THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR PROPERTY, CONCERNING
ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT IN ANY COURT OTHER THAN
ONE LOCATED IN ▇▇▇▇ COUNTY, ILLINOIS. NOTHING IN THIS SECTION SHALL AFFECT OR
IMPAIR BANK'S RIGHT TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY LAW OR
BANK'S RIGHT TO BRING ANY ACTION OR PROCEEDING AGAINST BORROWER OR BORROWER'S
PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
9.13 Waiver of Marshaling. All rights of marshaling of assets of
Borrower, including any such right with respect to the Pledged Property, are
hereby waived by Borrower.
9.14 Limitation by Law. All rights, remedies and powers provided in this
Agreement may be exercised only to the extent that the exercise thereof does not
violate any applicable provision of law, and all the provisions of this
Agreement are intended to be subject to all applicable mandatory provisions of
law which may be controlling and to be limited to the extent necessary so that
they will not render this Agreement invalid, unenforceable, in whole or in part,
or not entitled to be recorded, registered or filed under the provisions of any
applicable law.
9.15 Survival of Representations and Warranties. All representations and
warranties contained in this Agreement or made in writing by Borrower in
connection herewith shall survive the execution and delivery of this Agreement
and repayment of Borrower's Liabilities. Any investigation by Bank shall not
diminish in any respect whatsoever its rights to rely on such representations
and warranties.
9.16 Service of Process. Borrower hereby irrevocably appoints and
designates CT Corporation System, Inc., ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
as its true and lawful attorney-in-fact and duly authorized agent for service of
legal process and agrees that service of such process upon such agent and
attorney-in- fact shall constitute personal service of such process upon
Borrower.
9.17 Representation by Counsel. Borrower hereby represents that it has
been represented by competent counsel of its choice in the negotiation and
execution of this Agreement and the other Loan Documents; that it has read and
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fully understood the terms hereof; Borrower and its counsel have been afforded
an opportunity to review, negotiate and modify the terms of this Agreement, and
that it intends to be bound hereby. In accordance with the foregoing, the
general rule of construction to the effect that any ambiguities in a contract
are to be resolved against the party drafting the contract shall not be employed
in the construction and interpretation of this Agreement.
9.18 Release of Bank. Borrower releases Bank from any and all causes of
action or claims which Borrower may now or hereafter have for any asserted loss
or damage to Borrower claimed to be caused by or arising from any act or
omission to act on the part of Bank, its officers, agents or employees, except
for willful misconduct or gross negligence.
9.19 Invalidated Payments. To the extent that either Bank receives any
payment on account of Borrower's Liabilities, and any such payment(s) and/or
proceeds or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside, subordinated and/or required to be repaid
to a trustee, receiver or any other Person under any bankruptcy act, state or
federal law, common law or equitable cause, then, to the extent of such
payment(s) or proceeds received, Borrower's Liabilities or part thereof intended
to be satisfied shall be revived and continue in full force and effect, as if
such payment(s) and/or proceeds had not been received by Bank and applied on
account of Borrower's Liabilities.
9.20 Designated Person. Until Bank is notified by Borrower to the
contrary in accordance with Section 9.4, the signature upon this Agreement or
upon any of the Other Agreements of any partner, manager, employee or agent of
Borrower, or of any other Person designated in writing to Bank by any of the
foregoing, or of a "DESIGNATED PERSON" (as that term is defined in Borrower's
Secretary's Certificate of even date herewith, constituting one of the Other
Agreements) shall bind Borrower and be deemed to be the duly authorized act of
Borrower.
9.21 Headings. The descriptive headings of the various provisions of this
Agreement and the other Loan Documents are inserted for convenience of reference
only and shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
9.22 Counterparts. This Agreement and the other Loan Documents may be
executed in any number of counterparts, and by the different parties hereto and
thereto on the same or separate counterparts, each of which when so executed and
delivered shall be deemed to be an original; all the counterparts for each such
Loan Document shall together constitute one and the same agreement.
9.23 Fax Execution. For purposes of negotiating and concluding this
Agreement and the Loan Documents (including any subsequent amendments thereto),
any signed document transmitted by facsimile machine ("FAX") shall be
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treated in all manner and respects as an original document, except that delivery
by FAX shall not constitute delivery for the purposes of notices delivered
pursuant to Section 9.4 above. The original signature of any party that is
transmitted by FAX shall be considered for these purposes as an original
signature. Any document delivered by FAX shall be considered to have the same
binding legal effect as an original document, provided that an original of the
faxed document was mailed by certified or registered first class US Mail or
personally delivered to the recipient. At the request of either party, any FAX
document subject to this Agreement shall be re-executed by both parties in an
original form. The undersigned parties hereby agree that neither shall raise the
use of the FAX or the fact that any signature or document was transmitted or
communicated through the use of a FAX as a defense to the formation of this
Agreement or any other Loan Document.
9.24 No Third Party Beneficiaries. This Agreement is solely for the
benefit of the Bank, Borrower and their respective successors and assigns
(except as otherwise expressly provided herein) and nothing contained herein
shall be deemed to confer upon any Person other than Borrower and its successors
and assigns any right to insist on or to enforce the performance or observance
of any of the obligations contained herein. All conditions to the obligations of
the Bank to make the Loans hereunder are imposed solely and exclusively for the
benefit of the Bank and its respective successors and assigns and no other
Person shall have standing to require satisfaction of such conditions in
accordance with their terms and no other Persons shall under any circumstances
be deemed to be a beneficiary of such conditions.
9.25 Domicile of Loans. Bank may make, maintain or transfer any of its
Loans hereunder to, or for the account of, any branch office, subsidiary or
affiliate of Bank.
9.26 Entire Agreement. This Agreement and the other Loan Documents
constitute the entire agreement of Borrower and Bank with respect to the subject
matter hereof and supersede all prior and contemporaneous negotiations,
agreements, understandings and communications. No representation, understanding,
promise or condition concerning the subject matter hereof shall be binding upon
Bank unless expressed herein or therein. No course of dealing, course or
performance, trade usage or parole evidence of any nature, whether based on
actions, omissions or circumstances occurring or existing heretofore or
hereafter, may be used in any way to alter or supplement the terms hereof.
9.27 Construction. In this Agreement, unless the context otherwise
clearly requires, references to the plural include the singular, the singular
the plural, and the part the whole; the neuter case includes the masculine
and feminine cases; and "or" is not exclusive. In this Agreement, any
references to property (and similar terms) include an interest in such property
(or other item referred to); "include," "includes," "including" and similar
terms are not limiting; and "hereof,"
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"herein," "hereunder" and similar terms refer to this Agreement as a whole and
not to any particular provision; and "expenses," "costs," "out-of-pocket
expenses" and similar terms include the charges of in-house counsel, auditors
and other professionals of the relevant Person to the extent that such amounts
are routinely identified and charged under such Person's cost accounting system.
Section and other references in this Agreement are to this Agreement unless
otherwise specified.
9.28 Successors and Assigns. This Agreement shall be binding upon
Borrower and its successors and assigns, and shall inure to the benefit of and
be enforceable by Bank and its successors and assigns. Without limitation of the
foregoing, Bank (and any successive assignee or transferee) from time to time
may assign or otherwise transfer all or any portion of its rights or obligations
under the Loan Documents (including all or any portion of any commitment to
extend credit), or any Borrower's Liabilities, to any other Person, and such
(including any Borrower's Liabilities resulting from extension of credit by such
other Person under or in connection with the Loan Documents) shall be and remain
Borrowers entitled to the benefit of this Agreement, and to the extent of its
interest in such Borrowers such other Person shall be vested with all the
benefits in respect thereof granted to Bank in this Agreement or otherwise.
9.29 Waiver of Trial by Jury. TO THE EXTENT PERMITTED BY LAW, BORROWER
AND BANK EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER AGREEMENTS OR ANY COURSE
OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR
ACTIONS OF EITHER PARTY IN CONNECTION HEREWITH. BORROWER HEREBY EXPRESSLY
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT FOR BANK TO MAKE THE
LOAN.
The remainder of this page is left intentionally blank.
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IN WITNESS WHEREOF, this Amended and Restated Loan Agreement has been
duly executed and dated for reference purposes only as of June 1, 2000.
BORROWER:
SPSS, INC.
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Assistant Secretary
-----------------------------
BANK:
AMERICAN NATIONAL BANK AND TRUST
COMPANY OF CHICAGO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Vice President
-----------------------------
62
Schedule of Schedules
Schedule 5.1(e) Schedule of Shareholders, Stock and Options
Schedule 5.1(f) Schedule of Fictitious Names
Schedule 5.1(g) Schedule of Permitted Liens
Schedule 5.1(v) Schedule of Affiliates
Schedule 5.1(y) Schedule of Intellectual Property Rights
Schedule 6.2(i) Schedule of Depository Accounts
63
SCHEDULE 5.1(e)
SCHEDULE OF SHAREHOLDERS, STOCK AND OPTIONS
64
SCHEDULE 5.1(f)
SCHEDULE OF FICTITIOUS NAMES
65
SCHEDULE 5.1(g)
SCHEDULE OF PERMITTED LIENS
66
SCHEDULE 5.1(v)
SCHEDULE OF AFFILIATES
67
SCHEDULE 5.1(y)
SCHEDULE OF INTELLECTUAL PROPERTY RIGHTS
68
SCHEDULE 6.2(l)
SCHEDULE OF DEPOSITORY ACCOUNTS
