<PAGE>
Exhibit 10.1
================================================================================
CREDIT AGREEMENT
AMONG
AGILYSYS, INC.,
AS A US BORROWER,
THE OTHER US BORROWERS NAMED HEREIN,
AND
THE FOREIGN BORROWERS NAMED HEREIN,
COLLECTIVELY, AS BORROWERS,
THE LENDERS NAMED HEREIN,
AS LENDERS,
AND
LASALLE BANK NATIONAL ASSOCIATION,
AS LEAD ARRANGER, BOOK RUNNER AND ADMINISTRATIVE AGENT,
NATIONAL CITY BANK,
AS SYNDICATION AGENT,
HARRIS N.A.,
AS CO-DOCUMENTATION AGENT,
CHARTER ONE BANK, N.A.,
AS CO-DOCUMENTATION AGENT
AND
U.S. BANK NATIONAL ASSOCIATION,
AS MANAGING AGENT
----------
DATED AS OF
OCTOBER 18, 2005
----------
================================================================================
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ARTICLE I.
DEFINITIONS...................................................
1
Section 1.1.
Definitions............................................
1
Section 1.2. Accounting
Terms.......................................
23
Section 1.3. Terms
Generally........................................
23
ARTICLE II. AMOUNT AND TERMS OF
CREDIT...................................
23
Section 2.1. Amount and Nature of
Credit............................
23
Section 2.2. Revolving
Credit.......................................
24
Section 2.3.
Interest...............................................
28
Section 2.4. Evidence of
Indebtedness...............................
30
Section 2.5. Notice of Credit Event;
Funding of Loans...............
30
Section 2.6. Payment on Loans and Other
Obligations.................
31
Section 2.7.
Prepayment.............................................
33
Section 2.8. Facility and Other Fees;
Reduction of Commitment.......
33
Section 2.9. Computation of Interest and
Fees.......................
34
Section 2.10. Mandatory
Payments.....................................
34
Section 2.11. Effectiveness of
Guaranties............................
34
Section 2.12. Liability of
Borrowers.................................
35
Section 2.13. Addition of US Borrowers, Foreign
Borrowers and
Foreign Guarantors.....................................
36
ARTICLE III. ADDITIONAL PROVISIONS RELATING
TO LIBOR FIXED RATE LOANS;
INCREASED CAPITAL;
TAXES.................................................
38
Section 3.1. Requirements of
Law....................................
38
Section 3.2.
Taxes..................................................
39
Section 3.3. Funding
Losses.........................................
41
Section 3.4. Eurodollar Rate or Alternate
Currency Rate Lending
Unlawful; Inability to Determine Rate..................
41
Section 3.5. Discretion of Lenders as to
Manner of Funding..........
42
ARTICLE IV. CONDITIONS
PRECEDENT.........................................
42
Section 4.1. Conditions to Each Credit
Event........................
42
Section 4.2. Conditions to the First
Credit Event...................
43
ARTICLE V.
COVENANTS.....................................................
45
Section 5.1.
Insurance..............................................
45
Section 5.2. Money
Obligations......................................
45
Section 5.3. Financial Statements and
Information...................
45
Section 5.4. Financial
Records......................................
46
Section 5.5. Franchises; Change in
Business.........................
46
Section 5.6. ERISA and Benefit Plan
Compliance......................
47
Section 5.7. Financial
Covenants....................................
47
Section 5.8.
Borrowing..............................................
48
Section 5.9.
Liens..................................................
49
Section 5.10. Regulations T, U and
X.................................
50
Section 5.11. Investments, Loans and
Guaranties......................
50
Section 5.12. Merger and Sale of
Assets..............................
51
Section 5.13.
Acquisitions...........................................
52
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Section 5.14.
Notice.................................................
53
Section 5.15. Restricted
Payments....................................
53
Section 5.16. Environmental
Compliance...............................
53
Section 5.17. Affiliate
Transactions.................................
54
Section 5.18. Use of
Proceeds........................................
54
Section 5.19. Corporate
Names........................................
54
Section 5.20. Subsidiary Guaranties and Pledge
of Stock or Other
Ownership Interest.....................................
54
Section 5.21. Restrictive
Agreements.................................
55
Section 5.22. Other
Covenants........................................
55
Section 5.23. Guaranty Under Material
Indebtedness Agreement.........
55
Section 5.24. Pari Passu
Ranking.....................................
55
Section 5.25. Amendment of Organizational
Documents..................
55
Section 5.26. Other
Indebtedness.....................................
56
ARTICLE VI. REPRESENTATIONS AND
WARRANTIES...............................
56
Section 6.1. Corporate Existence;
Subsidiaries; Foreign
Qualification..........................................
56
Section 6.2. Corporate
Authority....................................
56
Section 6.3. Compliance with Laws and
Contracts.....................
56
Section 6.4. Litigation and
Administrative Proceedings..............
57
Section 6.5. Title to
Assets........................................
57
Section 6.6. Liens and Security
Interests...........................
57
Section 6.7. Tax
Returns............................................
57
Section 6.8. Environmental
Laws.....................................
58
Section 6.9. Continued
Business.....................................
58
Section 6.10. Employee Benefits
Plans................................
58
Section 6.11. Consents or
Approvals..................................
59
Section 6.12.
Solvency...............................................
59
Section 6.13. Financial
Statements...................................
59
Section 6.14.
Regulations............................................
60
Section 6.15. Material
Agreements....................................
60
Section 6.16. Intellectual
Property..................................
60
Section 6.17.
Insurance..............................................
60
Section 6.18. Accurate and Complete
Statements.......................
60
Section 6.19. Investment Company; Holding
Company....................
60
Section 6.20.
Defaults...............................................
60
ARTICLE VII. EVENTS OF
DEFAULT...........................................
60
Section 7.1.
Payments...............................................
60
Section 7.2. Special
Covenants......................................
61
Section 7.3. Other
Covenants........................................
61
Section 7.4. Representations and
Warranties.........................
61
Section 7.5. Cross
Default..........................................
61
Section 7.6. ERISA
Default..........................................
61
Section 7.7. Change in
Control......................................
61
Section 7.8. Money
Judgment.........................................
61
Section 7.9. Material Adverse
Change................................
62
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Section 7.10. Validity of Loan
Documents.............................
62
Section 7.11.
Solvency...............................................
62
ARTICLE VIII. REMEDIES UPON
DEFAULT......................................
62
Section 8.1. Optional
Defaults......................................
63
Section 8.2. Automatic
Defaults.....................................
63
Section 8.3. Letters of
Credit......................................
63
Section 8.4.
Offsets................................................
63
Section 8.5. Equalization
Provision.................................
64
Section 8.6. Other
Remedies.........................................
64
ARTICLE IX. THE
AGENT....................................................
64
Section 9.1. Appointment and
Authorization..........................
64
Section 9.2. Note
Holders...........................................
65
Section 9.3. Consultation With
Counsel..............................
65
Section 9.4.
Documents..............................................
65
Section 9.5. Agent and
Affiliates...................................
65
Section 9.6. Knowledge of
Default...................................
66
Section 9.7. Action by
Agent........................................
66
Section 9.8. Release of Guarantor of
Payment or Pledge of Stock.....
66
Section 9.9. Notices,
Default.......................................
66
Section 9.10. Delegation of
Duties...................................
66
Section 9.11. Indemnification of
Agent...............................
67
Section 9.12. Successor
Agent........................................
67
Section 9.13. Fronting
Lender........................................
67
Section 9.14. Agent May File Proofs of
Claim.........................
67
Section 9.15. Other
Agents...........................................
68
ARTICLE X.
MISCELLANEOUS.................................................
68
Section 10.1. Lenders' Independent
Investigation.....................
68
Section 10.2. No Waiver; Cumulative
Remedies.........................
68
Section 10.3. Amendments, Waivers and
Consents.......................
69
Section 10.4.
Notices................................................
69
Section 10.5. Costs, Expenses and
Taxes..............................
70
Section 10.6.
Indemnification........................................
70
Section 10.7. Obligations Several; No Fiduciary
Obligations..........
70
Section 10.8. Execution in
Counterparts..............................
71
Section 10.9. Binding Effect; Borrower's
Assignment..................
71
Section 10.10. Lender
Assignments.....................................
71
Section 10.11. Sale of
Participations.................................
73
Section 10.12. Patriot Act
Notice.....................................
74
Section 10.13. Severability
of Provisions; Captions; Attachments......
74
Section 10.14. Investment
Purpose.....................................
74
Section 10.15. Entire
Agreement.......................................
74
Section 10.16.
Confidentiality........................................
74
Section 10.17. Legal
Representation of Parties........................
75
Section 10.18.
Currency...............................................
75
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Section 10.19. Governing
Law; Submission to Jurisdiction..............
76
Section 10.20. Jury Trial
Waiver...................................... Signature Page 1
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Schedule 1
Commitments of Lenders
Schedule 2
Borrowers
Schedule 3 Guarantors
of Payment
Schedule 4 Additional Foreign Borrower
Maximum Amount
Schedule 5 Pledged
Securities
Schedule 5.8 Indebtedness
Schedule 5.9 Liens
Schedule 5.11 Permitted Foreign Subsidiary
Loans and Investments
Schedule 6.1 Corporate Existence;
Subsidiaries; Foreign Qualification
Schedule 6.4 Litigation and
Administrative Proceedings
Schedule 6.10 Employee Benefits Plans
Schedule 6.15 Material Agreements
Exhibit A US
Borrower Revolving Credit Note
Exhibit B
Foreign Borrower Revolving Credit Note
Exhibit C
Swing Line Note
Exhibit D
Notice of Loan
Exhibit E
Compliance Certificate
Exhibit F Form
of Assignment and Acceptance Agreement
Exhibit G Form
of Additional Borrower Assumption Agreement
Exhibit H
Master Letter of Credit Agreement
iv
<PAGE>
This CREDIT
AGREEMENT (as the same may from time to time be amended,
restated or otherwise modified, this
"Agreement") is made effective as of the
18th day of October, 2005 among:
(a) AGILYSYS, INC., an Ohio corporation ("Agilysys");
(b) each US Borrower (other than Agilysys), as hereinafter
defined;
(c) each Foreign Borrower, as hereinafter defined (each such
Foreign
Borrower,
together with each US Borrower shall be referred to herein,
collectively, as
"Borrowers" and, individually, each a "Borrower");
(d) the lenders listed on Schedule 1 hereto and each other
Eligible
Transferee, as
hereinafter defined, that becomes a party hereto pursuant to
Section 10.10
hereof (collectively, the "Lenders" and, individually, each a
"Lender");
(e) LASALLE BANK NATIONAL ASSOCIATION, as lead arranger, book
runner
and
administrative agent for the Lenders under this Agreement
("Agent");
(f) NATIONAL CITY BANK, as syndication agent ("Syndication
Agent");
(g) HARRIS N.A., as co-documentation agent ("Co-Documentation
Agent");
(h) CHARTER ONE BANK, N.A., as co-documentation agent
("Co-Documentation Agent"); and
(i) U.S. BANK NATIONAL ASSOCIATION, as managing agent
("Managing
Agent").
WITNESSETH:
WHEREAS,
Borrowers, Agent and the Lenders desire to contract for the
establishment of credits in the aggregate
principal amounts hereinafter set
forth, to be made available to Borrowers
upon the terms and subject to the
conditions hereinafter set forth;
NOW, THEREFORE,
it is mutually agreed as follows:
ARTICLE I. DEFINITIONS
Section 1.1.
Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Acquisition"
shall mean any transaction or series of related transactions
for the purpose of or resulting, directly
or indirectly, in (a) the acquisition
of all or substantially all of the
assets
<PAGE>
of any Person (other than a Company), or
any business or division of any Person
(other than a Company), (b) the acquisition
of in excess of fifty percent (50%)
of the stock (or other equity interest) of
any Person (other than a Company), or
(c) the acquisition of another Person
(other than a Company) by a merger,
amalgamation or consolidation or any other
combination with such Person.
"Additional
Borrower Assumption Agreement" shall mean each of the
Additional Borrower Assumption Agreements
executed by a US Borrower or Foreign
Borrower, as applicable, after the Closing
Date, in the form of the attached
Exhibit G, as the same may from time to
time be amended, restated or otherwise
modified.
"Additional
Foreign Borrower Maximum Amount" shall mean that term as
defined in Section 2.13(b) hereof.
"Additional
Foreign Guarantor Maximum Amount" shall mean that term as
defined in Section 2.13(c) hereof.
"Administrative
Borrower" shall mean Agilysys.
"Advantage"
shall mean any payment (whether made voluntarily or
involuntarily, by offset of any deposit or
other indebtedness or otherwise)
received by any Lender in respect of the
Obligations, if such payment results in
that Lender having less than its pro rata
share of the Obligations then
outstanding.
"Affiliate"
shall mean any Person, directly or indirectly, controlling,
controlled by or under common control with
a Company and "control" (including
the correlative meanings, the terms
"controlling", "controlled by" and "under
common control with") shall mean the power,
directly or indirectly, to direct or
cause the direction of the management and
policies of a Company, whether through
the ownership of voting securities, by
contract or otherwise.
"Agent" shall
mean that term as defined in the first paragraph hereof.
"Agent Fee
Letter" shall mean the Agent Fee Letter between Agilysys and
Agent, dated as of the Closing Date, as the
same may from time to time be
amended, restated or otherwise
modified.
"Agreement"
shall mean that term as defined in the first paragraph hereof.
"Agreement for
Inventory Financing" shall mean that certain Amended and
Restated Agreement for Inventory Financing
(Unsecured), dated on or about April
16, 2003, by and between IBM Credit LLC and
Agilysys, as amended and as the same
may from time to time be further amended,
restated or otherwise modified.
"Alternate
Currency" shall mean Euros, Pounds Sterling, Canadian Dollars,
Japanese Yen, Hong Kong Dollars or any
other currency, other than Dollars,
agreed to by Agent that shall be freely
transferable and convertible into
Dollars.
2
<PAGE>
"Alternate
Currency Exposure" shall mean, at any time and without
duplication, the sum of the Dollar
Equivalent of (a) the aggregate principal
amount of Alternate Currency Loans, and (b)
the Letter of Credit Exposure that
is denominated in one or more Alternate
Currencies.
"Alternate Currency
Loan" shall mean a Revolving Loan described in Section
2.2(a) hereof, that shall be denominated in
an Alternate Currency and on which
Borrowers shall pay interest at a rate
based upon the Derived LIBOR Fixed Rate
applicable to such Alternate Currency.
"Alternate
Currency Maximum Amount" shall mean Twenty Million Dollars
($20,000,000).
"Alternate
Currency Rate" shall mean, with respect to an Alternate
Currency
Loan, for any Interest Period, a rate of
interest equal to the quotient of (a)
the per annum rate of interest at which
relevant Alternate Currency deposits in
an amount comparable to the amount of such
Alternate Currency Loan and for a
period equal to the such Interest Period
are offered in the London Interbank
Eurodollar market at 11:00 A.M. (London
time) two Business Days prior to the
commencement of such Interest Period (or
three Business Days prior to the
commencement of such Interest Period if
banks in London, England were not open
and dealing in such Alternate Currency on
such second preceding Business Day),
as displayed in the Bloomberg Financial
Markets Information Service system (or
other authoritative source selected by
Agent in its sole discretion) or, if the
Bloomberg Financial Markets Information
Service system or another authoritative
source is not available, as the Alternate
Currency Rate is otherwise determined
by Agent in its sole and absolute
discretion; divided by (b) a number determined
by subtracting from 1.00 the then stated
maximum reserve percentage for
determining reserves to be maintained by
member banks of the Federal Reserve
System for Eurocurrency funding or
liabilities as defined in Regulation D (or
any successor category of liabilities under
Regulation D), such rate to remain
fixed for such Interest Period. Agent's
determination of the Alternate Currency
Rate shall be rebuttably presumptive
evidence of such rate.
"Applicable
Facility Fee Rate" shall mean:
(a) for the period from the Closing Date through November 30,
2005,
twenty-two and one-half (22.50)
basis points; and
(b) commencing with the Consolidated financial statements of
Agilysys
for the fiscal
quarter ending September 30, 2005, the number of basis
points set forth
in the following matrix, based upon the result of the
computation of
the Leverage Ratio, shall be used to establish the number of
basis points
that will go into effect on December 1, 2005 and thereafter:
<TABLE>
<CAPTION>
LEVERAGE RATIO
APPLICABLE FACILITY FEE RATE
--------------
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<S>
<C>
Greater than or equal to 2.50 to 1.00
50.00 basis points
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<S>
<C>
Greater than or equal to 2.00 to 1.00 but
less than
37.50 basis points
2.50 to 1.00
Greater than or equal to 1.50 to 1.00 but
less than
35.00 basis points
2.00 to 1.00
Greater than or equal to 1.00 to 1.00 but
less than
22.50 basis points
1.50 to 1.00
Greater than or equal to .50 to 1.00 but
less than
20.00 basis points
1.00 to 1.00
Less than .50 to 1.00
17.50 basis points
</TABLE>
After December 1, 2005, changes to the
Applicable Facility Fee Rate shall be
effective on the first day of each month
following the date upon which Agent
should have received, pursuant to Section
5.3(a) and (b) hereof, the
Consolidated financial statements of
Agilysys. The above matrix does not modify
or waive, in any respect, the requirements
of Section 5.7 hereof, the rights of
Agent and the Lenders to charge the Default
Rate, or the rights and remedies of
Agent and the Lenders pursuant to Articles
VII and VIII hereof.
"Applicable
Margin" shall mean:
(a) for the period from the Closing Date through November 30,
2005,
one hundred two
and one-half (102.50) basis points for LIBOR Fixed Rate
Loans and zero
(0.00) basis points for Base Rate Loans; and
(b) commencing with the Consolidated financial statements of
Agilysys
for the fiscal
quarter ending September 30, 2005, the number of basis
points
(depending upon whether Loans are LIBOR Fixed Rate Loans or
Base
Rate Loans) set
forth in the following matrix, based upon the result of the
computation of
the Leverage Ratio, shall be used to establish the number of
basis points
that will go into effect on December 1, 2005 and thereafter:
<TABLE>
<CAPTION>
APPLICABLE BASIS APPLICABLE
BASIS POINTS
POINTS FOR LIBOR FIXED
FOR BASE RATE
LEVERAGE RATIO
RATE LOANS
LOANS
--------------
---------------------- -----------------------
<S>
<C>
<C>
Greater than or equal to 2.50 to 1.00
150.00
50.00
Greater than or equal to 2.00 to 1.00 but
137.50
0.00
less than 2.50 to 1.00
Greater than or equal to 1.50 to 1.00 but
115.00
0.00
less than 2.00 to 1.00
Greater than or equal to 1.00 to 1.00 but
102.50
0.00
less than 1.50 to 1.00
</TABLE>
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<C>
<C>
Greater than or equal to .50 to 1.00 but
80.00
0.00
less than 1.00 to 1.00
Less than 0.50 to 1.00
57.50
0.00
</TABLE>
After December 1, 2005, changes to the
Applicable Margin shall be effective on
the first day of each month following the
date upon which Agent should have
received, pursuant to Section 5.3(a) and
(b) hereof, the Consolidated financial
statements of Agilysys. The above matrix
does not modify or waive, in any
respect, the requirements of Section 5.7
hereof, the rights of Agent and the
Lenders to charge the Default Rate, or the
rights and remedies of Agent and the
Lenders pursuant to Articles VII and VIII
hereof.
"Assignment
Agreement" shall mean an Assignment and Acceptance Agreement in
the form of the attached Exhibit F.
"Authorized
Officer" shall mean the general counsel, a Financial Officer or
other individual authorized by a Financial
Officer in writing (with a copy to
Agent) to handle certain administrative
matters in connection with this
Agreement.
"Base Rate"
shall mean a rate per annum equal to the greater of (a) the
Prime Rate or (b) one-half of one percent
(.50%) in excess of the Federal Funds
Effective Rate. Any change in the Base Rate
shall be effective immediately from
and after such change in the Base Rate.
"Base Rate Loan"
shall mean a Revolving Loan described in Section 2.2(a)
hereof, that shall be denominated in
Dollars and on which Borrowers shall pay
interest at a rate based on the Derived
Base Rate.
"Borrower" shall
mean that term as defined in the first paragraph hereof.
"Borrowers"
shall mean that term as defined in the first paragraph hereof.
"Borrower
Investment Policy" shall mean the Investment Policy Guidelines
of
Agilysys in effect as of the Closing Date,
together with such modifications as
approved from time to time by the Board of
Directors of Agilysys.
"Business Day"
shall mean (a) a day of the year that is not a Saturday,
Sunday or on which national banks are not
authorized or required to close in
Chicago, Illinois, (b) if the applicable
Business Day relates to a Eurodollar
Loan, a day of the year on which dealings
in deposits are carried on in the
London interbank Eurodollar market, and (c)
if the applicable Business Day
relates to an Alternate Currency, a day of
the year on which dealings in
deposits are carried on in the relevant
Alternate Currency.
"Capital
Distribution" shall mean a payment made, liability incurred or
other consideration given by a Company to
any Person that is not a Company, for
the purchase, acquisition, redemption,
repurchase, payment or retirement of any
capital stock or other equity interest
(other than the Convertible Debentures)
of such Company, or as a dividend, return
of capital or other distribution
(other than any stock dividend, stock split
or other equity distribution
5
<PAGE>
payable only in capital stock or other
equity of such Company) in respect of
such Company's capital stock or other
equity interest (other than the
Convertible Debentures).
"Capitalized
Lease Obligations" shall mean obligations of the Companies for
the payment of rent for any real or
personal property under leases or agreements
to lease that, in accordance with GAAP,
have been or should be capitalized on
the books of the lessee and, for purposes
hereof, the amount of any such
obligation shall be the capitalized amount
thereof determined in accordance with
GAAP.
"Cash Equivalent
Investments" shall mean (a) short-term obligations of, or
fully guaranteed by, the United States of
America, (b) commercial paper rated
A-2 or better by Standard & Poor's or
P-2 or better by Moody's, (c) demand
deposit accounts maintained in the ordinary
course of business, and (d)
certificates of deposit issued by and time
deposits with commercial banks
(whether domestic or foreign) having
capital and surplus in excess of One
Hundred Million Dollars ($100,000,000);
provided, in each case, that the same
provides for payment of both principal and
interest (and not principal alone or
interest alone) and is not subject to any
contingency regarding the payment of
principal or interest.
"Change in
Control" shall mean (a) the acquisition of, or, if earlier, the
shareholder or director approval of the
acquisition of, ownership or voting
control, directly or indirectly,
beneficially (within the meaning of Rules 13d-3
and 13d-5 of the Securities Exchange Act of
1934, as then in effect) or of
record, on or after the Closing Date, by
any Person or group (within the meaning
of Sections 13d and 14d of the Securities
Exchange Act of 1934, as then in
effect), of shares representing more than
thirty percent (30%) of the aggregate
ordinary Voting Power represented by the
issued and outstanding capital stock of
Agilysys; (b) the occupation of a majority
of the seats (other than vacant
seats) on the board of directors or other
governing body of Agilysys by Persons
who were neither (i) nominated by the board
of directors or other governing body
of Agilysys nor (ii) appointed by directors
so nominated or elected by a
majority of shareholders; or (c) the
occurrence of a change in control, or other
similar provision, as defined in any
Material Indebtedness Agreement.
"Closing Date"
shall mean the effective date of this Agreement as set forth
in the first paragraph of this
Agreement.
"Closing Date
Required Net Worth Amount" shall mean an amount equal to the
sum of (a) eighty-five percent (85%) of the
Consolidated Net Worth of Agilysys
as of June 30, 2005; plus (b) fifty percent
(50%) of positive Consolidated Net
Earnings for the fiscal quarter of Agilysys
ending September 30, 2005.
"Closing Fee
Letter" shall mean the Closing Fee Letter between Agilysys and
Agent, dated as of the Closing Date.
"Code" shall
mean the Internal Revenue Code of 1986, as amended, together
with the rules and regulations promulgated
thereunder.
6
<PAGE>
"Commitment"
shall mean the obligation hereunder of the Lenders, during the
Commitment Period, to make Loans and to
participate in the issuance of Letters
of Credit pursuant to the Revolving Credit
Commitment, up to the Total
Commitment Amount.
"Commitment
Percentage" shall mean, for each Lender, the percentage set
forth opposite such Lender's name under the
column headed "Commitment
Percentage", as listed in Schedule 1 hereto
(taking into account any assignments
pursuant to Section 10.10 hereof).
"Commitment
Period" shall mean the period from the Closing Date to October
17, 2010, or such earlier date on which the
Commitment shall have been
terminated pursuant to Article VIII
hereof.
"Companies"
shall mean all Borrowers and Subsidiaries.
"Company" shall
mean a Borrower or Subsidiary.
"Compliance
Certificate" shall mean a Compliance Certificate in the form of
the attached Exhibit E.
"Confidential
Information" shall mean all confidential or proprietary
information about the Companies that has
been furnished by any Company to Agent
or any Lender, whether furnished before or
after the Closing Date and regardless
of the manner in which it is furnished, but
does not include any such
information that (a) is or becomes
generally available to the public other than
as a result of a disclosure by Agent or
such Lender not permitted by this
Agreement, (b) was available to Agent or
such Lender on a nonconfidential basis
prior to its disclosure to Agent or such
Lender, or (c) becomes available to
Agent or such Lender on a nonconfidential
basis from a Person other than a
Company.
"Consideration"
shall mean, in connection with an Acquisition, the
aggregate consideration paid, including
borrowed funds, cash, the issuance of
securities or notes, the assumption or
incurring of liabilities (direct or
contingent), the payment of consulting fees
or fees for a covenant not to
compete and any other consideration paid
for such Acquisition.
"Consolidated"
shall mean the resultant consolidation of the financial
statements of Agilysys and its Subsidiaries
in accordance with GAAP, including
principles of consolidation consistent with
those applied in preparation of the
consolidated financial statements referred
to in Section 6.13 hereof.
"Consolidated
Capital Expenditures" shall mean, for any period, as
determined on a Consolidated basis and in
accordance with GAAP, purchases of
property, plant and equipment as reported
in Agilysys' Consolidated statement of
cash flows for such period, as reflected in
Agilysys' Quarterly Report on Form
10-Q or Agilysys' Annual Report on Form
10-K filed with the SEC for such period,
as applicable.
"Consolidated
Depreciation and Amortization Charges" shall mean, for any
period, as determined on a Consolidated
basis and in accordance with GAAP, the
aggregate of all
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depreciation and amortization charges for
fixed assets, leasehold improvements
and general intangibles (specifically
including goodwill) of Agilysys, as
reported in Agilysys' Consolidated
statement of cash flows for such period, as
reflected in Agilysys' Quarterly Report on
Form 10-Q or Agilysys' Annual Report
on Form 10-K filed with the SEC for such
period, as applicable.
"Consolidated
EBITDA" shall mean, for any period, as determined on a
Consolidated basis and in accordance with
GAAP, Consolidated Net Earnings from
continuing operations of Agilysys, as
reported in Agilysys' Consolidated income
statement for such period, as reflected in
Agilysys' Quarterly Report on Form
10-Q or Agilysys' Annual Report on Form
10-K filed with the SEC for such period,
as applicable, plus the aggregate amounts
deducted in determining such
Consolidated Net Earnings from continuing
operations in respect of:
(a) Consolidated Income Tax Expense;
(b) Consolidated Interest Expense (including, to the extent
deducted
from
Consolidated Net Earnings from continuing operations of Agilysys,
the
amortization of
deferred financing costs, interest expense on deferred
compensation
arrangements, if any, and payments made to obtain Hedge
Agreements);
(c) distributions on the Convertible Debentures to the extent
not
included in
Consolidated Interest Expense;
(d) Consolidated Depreciation and Amortization Charges;
(e) Consolidated restructuring charges as reported in Agilysys'
Consolidated
financial statements for any such period during the 2006
fiscal year, as
reflected in Agilysys' Quarterly Report on Form 10-Q or
Agilysys' Annual
Report on Form 10-K filed with the SEC for such period, as
applicable, in
an aggregate amount not to exceed Seven Million Dollars
($7,000,000) for
all such periods during the 2006 fiscal year;
(f) losses resulting from the premiums paid with respect to the
early
redemption of
the Convertible Debentures; and
(g) (i) extraordinary non-cash losses not incurred in the
ordinary
course of
business, minus (ii) extraordinary non-cash gains not incurred
in
the ordinary
course of business.
Consolidated EBITDA shall be calculated on
a pro forma basis giving effect to
Acquisitions permitted under this Agreement
for the most recently completed
twelve (12) calendar months using, for any
Acquisition permitted under this
Agreement, as applicable, historical
financial statements containing such
adjustments as are approved by Agent for
inclusion in such calculation, which
adjustments shall be satisfactory to Agent,
in its reasonable credit judgment.
The aforementioned adjustments may be
broken down by fiscal quarter in Agilysys'
reasonable judgment.
"Consolidated
Fixed Charges" shall mean, at any date, as determined on a
Consolidated basis and in accordance with
GAAP, without duplication, the
aggregate of (a) Consolidated
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Interest Expense (including, without
limitation, the "imputed interest" portion
of capital leases, synthetic leases and
asset securitizations, if any), (b) rent
expenses, (c) principal payments on
Consolidated Funded Indebtedness (other than
(i) optional prepayments or scheduled
amortization of the Senior Unsecured
Notes, and (ii) optional prepayments of the
Loans or any other Indebtedness),
(d) Consolidated Income Tax Expense paid in
cash, and (e) cash expenditures
relating to Capital Distributions.
"Consolidated
Funded Indebtedness" shall mean, for any period, as
determined on a Consolidated basis, the sum
of (a) all Indebtedness for borrowed
money, as determined in accordance with
GAAP, (b) all obligations (contingent or
otherwise) under any letter of credit or
banker's acceptance, and (c)
Capitalized Lease Obligations and
Indebtedness pursuant to synthetic leases, as
determined in accordance with GAAP.
"Consolidated
Income Tax Expense" shall mean, for any period, as determined
on a Consolidated basis and in accordance
with GAAP, all provisions for taxes
based on the gross or net income of
Agilysys (including, without limitation, any
additions to such taxes, and any penalties
and interest with respect thereto),
and all franchise taxes of Agilysys, all as
reported in Agilysys' Consolidated
income statement for such period as
reflected in Agilysys' Quarterly Report on
Form 10-Q or Agilysys' Annual Report on
Form 10-K filed with the SEC for such
period, as applicable.
"Consolidated
Interest Expense" shall mean, for any period, as determined
on a Consolidated basis and in accordance
with GAAP, the interest expense of
Agilysys as reported in Agilysys'
Consolidated income statement for such period
as reflected in Agilysys' Quarterly Report
on Form 10-Q or Agilysys' Annual
Report on Form 10-K filed with the SEC for
such period, as applicable.
"Consolidated
Net Earnings" shall mean, for any period, as determined on a
Consolidated basis and in accordance with
GAAP, the net income (loss) of
Agilysys, as reported in Agilysys'
Consolidated income statement for such period
as reflected in Agilysys' Quarterly Report
on Form 10-Q or Agilysys' Annual
Report on Form 10-K filed with the SEC for
such period, as applicable.
"Consolidated
Net Worth" shall mean, at any date, as determined on a
Consolidated basis and in accordance with
GAAP, the stockholders' equity of
Agilysys, as determined as of such date and
as reported in Agilysys'
Consolidated balance sheet as reflected in
the Agilysys' Quarterly Report on
Form 10-Q or Agilysys' Annual Report on
Form 10-K filed with the SEC, as
applicable for the period ending as of such
date.
"Controlled
Group" shall mean a Company and each Person required to be
aggregated with a Company under Code
Section 414(b), (c), (m) or (o).
"Convertible
Debentures" shall mean the Series A 6 3/4% Junior Convertible
Subordinated Debentures of Agilysys, due
March 31, 2028, issued in the aggregate
original principal amount of up to One
Hundred Fifty Million Dollars
($150,000,000), under the Convertible
Debentures Indenture, and redeemed in full
prior to the Closing Date.
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"Convertible
Debentures Indenture" shall mean that certain Junior
Subordinated Indenture, dated as of March
23, 1998, of Agilysys to Wilmington
Trust Company, as trustee, as supplemented
by that certain First Supplemental
Indenture, dated as of March 23, 1998, of
Agilysys to Wilmington Trust Company,
as trustee.
"Credit Event"
shall mean the making by the Lenders of a Loan, the
conversion by the Lenders of a Base Rate
Loan to a LIBOR Fixed Rate Loan, the
continuation by the Lenders of a LIBOR
Fixed Rate Loan after the end of the
applicable Interest Period, the making by
the Swing Line Lender of a Swing Loan,
or the issuance (or amendment) by the
Fronting Lender of a Letter of Credit.
"Credit Party"
shall mean each Borrower and any Subsidiary or other
Affiliate that is a Guarantor of
Payment.
"Credit Rating"
shall mean the Moody's Rating or the S&P Rating.
"Default" shall
mean an event or condition that constitutes, or with the
lapse of any applicable grace period or the
giving of notice or both would
constitute, an Event of Default and that
has not been waived by the Required
Lenders (or, if applicable, all of the
Lenders) in writing.
"Default Rate"
shall mean (a) with respect to any Loan, a rate per annum
equal to two percent (2%) in excess of the
rate otherwise applicable thereto,
and (b) with respect to any other amount,
if no rate is specified or available,
a rate per annum equal to two percent (2%)
in excess of the Derived Base Rate
from time to time in effect.
"Derived Base
Rate" shall mean a rate per annum equal to the sum of the
Applicable Margin (from time to time in
effect) for Base Rate Loans plus the
Base Rate.
"Derived LIBOR
Fixed Rate" shall mean (a) with respect to a Eurodollar
Loan, a rate per annum equal to the sum of
the Applicable Margin (from time to
time in effect) plus the Eurodollar Rate,
and (b) with respect to an Alternate
Currency Loan, a rate per annum equal to
the sum of the Applicable Margin (from
time to time in effect) plus the Alternate
Currency Rate applicable to the
relevant Alternate Currency.
"Disposition"
shall mean the lease, transfer or other disposition of assets
(whether in one or more than one
transaction) by a Company, other than a sale,
lease, transfer or other disposition made
by a Company pursuant to Section
5.12(b) hereof or in the ordinary course of
business.
"Dollar" or the
sign $ shall mean lawful money of the United States of
America.
"Dollar
Equivalent" shall mean (a) with respect to an Alternate
Currency
Loan or Letter of Credit denominated in an
Alternate Currency, the Dollar
equivalent of the amount of such Alternate
Currency Loan or Letter of Credit
denominated in an Alternate Currency,
determined by Agent on the basis of the
Spot Rate for the purchase of the relevant
Alternate Currency with
10
<PAGE>
Dollars for delivery on the date such
Alternate Currency Loan is advanced or
Letter of Credit issued, and (b) with
respect to any other amount, (i) if such
amount is denominated in Dollars, then such
amount in Dollars, and (ii) if such
amount is not denominated in Dollars, then
the Dollar equivalent of such amount,
determined by Agent on the basis of the
Spot Rate for the purchase of the
relevant Alternate Currency with Dollars
for delivery on such date; provided,
however, that, in calculating the Dollar
Equivalent for purposes of determining
(A) any Borrower's obligation to prepay
Loans and Letters of Credit pursuant to
Section 2.10 hereof, or (B) any Borrower's
ability to request additional Loans
or Letters of Credit pursuant to the
Commitment, Agent may, in its discretion,
on any Business Day selected by Agent
(prior to payment in full of the
Obligations), calculate the Dollar
Equivalent of each such Loan or Letter of
Credit. Agent shall notify Administrative
Borrower of the Dollar Equivalent of
such Alternate Currency Loan or any other
amount, at the time that such Dollar
Equivalent shall have been determined.
"Domestic
Guarantor of Payment" shall mean each of the Companies
designated
a "Domestic Guarantor of Payment" on
Schedule 3 hereto, each of which is
executing and delivering a Guaranty of
Payment on the Closing Date, and any
other Domestic Subsidiary that shall
deliver a Guaranty of Payment to Agent
subsequent to the Closing Date.
"Domestic
Subsidiary" shall mean a Subsidiary that is not a Foreign
Subsidiary.
"EBITDA" shall
mean, for any period, in accordance with GAAP and on a
non-consolidated basis, the net earnings of
a Person (without giving effect to
extraordinary losses or gains) for such
period plus the aggregate amounts
deducted in determining such net earnings
in respect of (a) interest expense of
such Person, (b) income taxes of such
Person and (c) the aggregate of all
depreciation and amortization charges of
such Person.
"Eligible
Transferee" shall mean a commercial bank, financial institution
or other "accredited investor" (as defined
in SEC Regulation D) that is not a
Borrower, a Subsidiary or an Affiliate.
"Environmental
Laws" shall mean all provisions of law (including the common
law), statutes, ordinances, codes, rules,
guidelines, policies, procedures,
orders-in-council, regulations, permits,
licenses, judgments, writs,
injunctions, decrees, orders, awards and
standards promulgated by a Governmental
Authority or by any court, agency,
instrumentality, regulatory authority or
commission of any of the foregoing
concerning environmental health or safety and
protection of, or regulation of the
discharge of substances into, the
environment.
"ERISA" shall
mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the
regulations promulgated pursuant thereto.
"ERISA Event"
shall mean (a) the existence of a condition or event with
respect to an ERISA Plan that presents a
significant risk of the imposition of
an excise tax in a material amount or any
other material liability on a Company
or of the imposition of a Lien on the
assets of a Company; (b) the engagement by
a Controlled Group member in a non-exempt
"prohibited transaction" (as defined
under ERISA Section 406 or Code Section
4975) or a breach of a
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<PAGE>
fiduciary duty under ERISA that, in either
case, could result in a material
liability to a Company; (c) the application
by a Controlled Group member for a
waiver from the minimum funding
requirements of Code Section 412 or ERISA
Section 302 or a Controlled Group member is
required to provide security under
Code Section 401(a)(29) or ERISA Section
307; (d) the occurrence of a Reportable
Event with respect to any Pension Plan as
to which thirty-day notice is required
to be provided to the PBGC; (e) the
withdrawal by a Controlled Group member from
a Multiemployer Plan in a "complete
withdrawal" or a "partial withdrawal" (as
such terms are defined in ERISA Sections
4203 and 4205, respectively) which
results or is likely to result in a
material liability to a Company; (f) the
involvement of, or occurrence or existence
of any event or condition that makes
likely the involvement of, a Multiemployer
Plan in any reorganization under
ERISA Section 4241; (g) the failure of an
ERISA Plan (and any related trust)
that is intended to be qualified under Code
Sections 401 and 501 to be so
qualified or the failure of any "cash or
deferred arrangement" under any such
ERISA Plan to meet the requirements of Code
Section 401(k), provided, in any
such case, that the failure exposes or is
likely to expose a Company to material
liability; (h) the taking by the PBGC of
any steps to terminate a Pension Plan
or appoint a trustee to administer a
Pension Plan, or the taking by a Controlled
Group member of any steps to terminate a
Pension Plan; (i) the failure by a
Controlled Group member or an ERISA Plan to
satisfy any requirements of law
applicable to an ERISA Plan, provided, in
any such case, that the failure
exposes or is likely to expose a Company to
material liability; (j) the
commencement, existence or threatening of a
claim, action, suit, audit or
investigation with respect to an ERISA
Plan, other than a routine claim for
benefits, provided any such commencement,
existence or threatening can
reasonably be anticipated to expose a
Company to a material liability; or (k)
any incurrence by or any expectation of the
incurrence by a Controlled Group
member of any liability for post-retirement
medical benefits under any Welfare
Plan, other than as required by ERISA
Section 601, et. seq. or Code Section
4980B other than limited payment in
connection with severance benefits or with
respect to senior executives of a
Company.
"ERISA Plan"
shall mean an "employee benefit plan" (within the meaning of
ERISA Section 3(3)) that a Controlled Group
member at any time sponsors,
maintains, contributes to, has liability
with respect to or has an obligation to
contribute to such plan.
"Eurodollar"
shall mean a Dollar denominated deposit in a bank or branch
outside of the United States.
"Eurodollar
Loan" shall mean a Revolving Loan described in Section 2.2(a)
hereof, that shall be denominated in
Dollars and on which Borrowers shall pay
interest at a rate based upon the Derived
LIBOR Fixed Rate applicable to
Eurodollars.
"Eurodollar
Rate" shall mean, with respect to a Eurodollar Loan, for any
Interest Period, a rate of interest equal
to the quotient of (a) the per annum
rate of interest at which United States
dollar deposits in an amount comparable
to the amount of such Eurodollar Loan and
for a period equal to the such
Interest Period are offered in the London
Interbank Eurodollar market at 11:00
A.M. (London time) two Business Days prior
to the commencement of such Interest
Period (or three Business Days prior to the
commencement of such Interest Period
if banks in London, England were not open
and dealing in offshore United States
dollars on such second preceding
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<PAGE>
Business Day), as displayed in the
Bloomberg Financial Markets Information
Service system (or other authoritative
source selected by Agent in its sole
discretion) or, if the Bloomberg Financial
Markets Information Service system or
another authoritative source is not
available, as the Eurodollar Rate is
otherwise determined by Agent in its sole
and absolute discretion; divided by
(b) a number determined by subtracting from
1.00 the then stated maximum reserve
percentage for determining reserves to be
maintained by member banks of the
Federal Reserve System for Eurocurrency
funding or liabilities as defined in
Regulation D (or any successor category of
liabilities under Regulation D), such
rate to remain fixed for such Interest
Period. Agent's determination of the
Eurodollar Rate shall be rebuttably
presumptive evidence of such rate.
"Event of
Default" shall mean an event or condition that shall constitute
an event of default as defined in Article
VII hereof.
"Excluded
Subsidiary" shall mean a Company that (a) is not a Credit
Party,
(b) has aggregate assets of less than One
Million Dollars ($1,000,000) and
aggregate investments by the Companies of
less than One Million Dollars
($1,000,000) (but excluding any assets of,
or investment by the Companies in,
Aprisa Holdings, Inc. or Aprisa Inc. so
long as no further assets have been
acquired by, and no further investments
have been made by the Companies in,
Aprisa Holdings, Inc. or Aprisa Inc. since
April 16, 2003), and (c) has no
direct or indirect Subsidiaries with
aggregate assets for all such Subsidiaries
of more than One Million Dollars
($1,000,000); provided that the aggregate
assets of all Excluded Subsidiaries shall
not exceed Five Million Dollars
($5,000,000).
"Excluded Taxes"
shall mean net income taxes (and franchise taxes imposed
in lieu of net income taxes) imposed on
Agent or a Lender by the Governmental
Authority located in the jurisdiction where
Agent or such Lender is organized.
"Federal Funds
Effective Rate" shall mean, for any day, the rate per annum
(rounded upward to the nearest one
one-hundredth of one percent (1/100 of 1%))
announced by the Federal Reserve Bank of
New York (or any successor) on such day
as being the weighted average of the rates
on overnight federal funds
transactions arranged by federal funds
brokers on the previous trading day, as
computed and announced by such Federal
Reserve Bank (or any successor) in
substantially the same manner as such
Federal Reserve Bank computes and
announces the weighted average it refers to
as the "Federal Funds Effective
Rate" as of the Closing Date.
"Financial
Officer" shall mean any of the following officers: chief
executive officer, president, chief
financial officer or treasurer. Unless
otherwise qualified, all references to a
Financial Officer in this Agreement
shall refer to a Financial Officer of
Agilysys.
"Fixed Charge
Coverage Ratio" shall mean, for the most recently completed
four fiscal quarters of Agilysys, as
determined on a Consolidated basis and in
accordance with GAAP, the ratio of (a)
Consolidated EBITDA, minus (i)
Consolidated Capital Expenditures, plus
(ii) Consolidated rent expenses of the
Companies; to (b) Consolidated Fixed
Charges.
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<PAGE>
"Foreign
Affiliate" shall mean, with respect to a Foreign Borrower, a
parent Company, sister Company or
Subsidiary of such Foreign Borrower.
"Foreign
Borrower" shall mean each of the Foreign Subsidiaries of
Agilysys
set forth on Schedule 2 hereto, together
with any other Foreign Subsidiary of
Agilysys that, on or after the Closing
Date, shall have satisfied, in the
opinion of Agent, the requirements of
Section 2.13(b) hereof.
"Foreign
Borrower Revolving Credit Note" shall mean a Foreign Borrower
Revolving Credit Note executed and
delivered by a Foreign Borrower pursuant to
Section 2.4(b) hereof.
"Foreign
Guarantor of Payment" shall mean each of the Companies set
forth
on Schedule 3 hereto that shall have been
designated a "Foreign Guarantor of
Payment", that are executing and delivering
a Guaranty of Payment on or as of
the Closing Date, or any other Foreign
Subsidiary that shall execute and deliver
a Guaranty of Payment to Agent subsequent
to the Closing Date.
"Foreign
Subsidiary" shall mean a Subsidiary that is organized outside
of
the United States.
"Fronting
Lender" shall mean, as to any Letter of Credit transaction
hereunder, Agent as issuer of the Letter of
Credit, or, in the event that Agent
either shall be unable to issue or shall
agree that another Lender may issue a
Letter of Credit, such other Lender as
shall agree to issue the Letter of Credit
in its own name, but on behalf of the
Lenders hereunder.
"FX Trading
Office" shall mean the Chicago office of Agent, or such other
office of Agent or its parent, ABN AMRO, as
Agent may designate from time to
time.
"GAAP" shall
mean generally accepted accounting principles in the United
States as then in effect, which shall
include the official interpretations
thereof by the Financial Accounting
Standards Board, applied on a basis
consistent with the past accounting
practices and procedures of Agilysys.
"Governmental
Authority" shall mean any nation or government, any state,
province or territory or other political
subdivision thereof, any governmental
agency, department, authority,
instrumentality, regulatory body, court, central
bank or other governmental entity
exercising executive, legislative, judicial,
taxing, regulatory or administrative
functions of or pertaining to government,
any securities exchange and any
self-regulatory organization.
"Guarantor"
shall mean a Person that shall have pledged its credit or
property in any manner for the payment or
other performance of the indebtedness,
contract or other obligation of another and
includes (without limitation) any
guarantor (whether of payment or of
collection), surety, co-maker, endorser or
Person that shall have agreed conditionally
or otherwise to make any purchase,
loan or investment in order thereby to
enable another to prevent or correct a
default of any kind.
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<PAGE>
"Guarantor of
Payment" shall mean a Domestic Guarantor of Payment or
Foreign Guarantor of Payment, or any other
Person that shall deliver a Guaranty
of Payment to Agent subsequent to the
Closing Date.
"Guaranty
Documents" shall mean that term as defined in Section 2.11
hereof.
"Guaranty
Effectiveness Date" shall mean the date on which the Senior
Unsecured Notes are paid in full.
"Guaranty of
Payment" shall mean each Guaranty of Payment executed and
delivered on or after the Closing Date in
connection with this Agreement by the
Guarantors of Payment, as the same may from
time to time be amended, restated or
otherwise modified.
"Hedge
Agreement" shall mean any (a) hedge agreement, interest rate
swap,
cap, collar or floor agreement, or other
interest rate management device entered
into by a Company with any Person in
connection with any Indebtedness of such
Company, or (b) currency swap agreement,
forward currency purchase agreement or
similar arrangement or agreement designed
to protect against fluctuations in
currency exchange rates entered into by a
Company.
"Indebtedness" shall
mean, for any Company (excluding in all cases trade
payables payable in the ordinary course of
business by such Company), without
duplication, (a) all obligations to repay
borrowed money, direct or indirect,
incurred, assumed, or guaranteed, (b) all
obligations for the deferred purchase
price of capital assets, (c) all
obligations under conditional sales or other
title retention agreements, (d) all
obligations (contingent or otherwise) under
any letter of credit or banker's
acceptance, (e) all net obligations under any
currency swap agreement, interest rate
swap, cap, collar or floor agreement or
other interest rate management device or
any Hedge Agreement, (f) all synthetic
leases, (g) all lease obligations that have
been or should be capitalized on the
books of such Company in accordance with
GAAP, (h) all obligations of such
Company with respect to asset
securitization financing programs to the extent
that there is recourse against such Company
or such Company is liable
(contingent or otherwise) under any such
program, (i) all obligations to advance
funds to, or to purchase assets, property
or services from, any other Person in
order to maintain the financial condition
of such Person, (j) all indebtedness
of any partnership in which such Company is
a general partner, (k) any other
transaction (including forward sale or
purchase agreements) having the
commercial effect of a borrowing of money
entered into by such Company to
finance its operations or capital
requirements, and (l) any guaranty of any
obligation described in subparts (a)
through (k) hereof.
"Interest
Adjustment Date" shall mean the last day of each Interest
Period.
"Interest
Period" shall mean, with respect to a LIBOR Fixed Rate Loan,
the
period commencing on the date such LIBOR
Fixed Rate Loan is made and ending on
the last day of such period, as selected by
Administrative Borrower (or the
appropriate Foreign Borrower) pursuant to
the provisions hereof, and, thereafter
(unless, with respect to a Eurodollar Loan,
such LIBOR Fixed Rate Loan is
converted to a Base Rate Loan), each
subsequent period commencing on the first
day after the immediately preceding
Interest Period and ending on the last day
of such period, as selected by
Administrative Borrower (or the appropriate
Foreign Borrower)
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<PAGE>
pursuant to the provisions hereof. The
duration of each Interest Period for a
LIBOR Fixed Rate Loan shall be one month,
two months, three months or six
months, in each case as Administrative
Borrower (or the appropriate Foreign
Borrower) may select upon notice, as set
forth in Section 2.5 hereof; provided
that (a) if Administrative Borrower (or the
appropriate Foreign Borrower) shall
fail to so select the duration of any
Interest Period for a Eurodollar Loan at
least three Business Days prior to the
Interest Adjustment Date applicable to
such Eurodollar Loan, Borrowers shall be
deemed to have converted such
Eurodollar Loan to a Base Rate Loan at the
end of the then current Interest
Period; and (b) each Alternate Currency
Loan must be repaid on the last day of
the Interest Period applicable thereto.
"Inventory"
shall mean all inventory, as defined in the U.C.C.
"Lender" shall
mean that term as defined in the first paragraph hereof.
"Letter of
Credit" shall mean a standby letter of credit that shall be
issued by the Fronting Lender for the
account of a Borrower or Guarantor of
Payment, including amendments thereto, if
any, and shall have an expiration date
no later than the earlier of (a) one year
after its date of issuance (provided
that such Letter of Credit may provide for
the renewal thereof for additional
one year periods), or (b) seven days prior
to the last day of the Commitment
Period.
"Letter of
Credit Commitment" shall mean the commitment of the Fronting
Lender, on behalf of the Lenders, to issue
Letters of Credit in an aggregate
face amount of up to Twenty Million Dollars
($20,000,000).
"Letter of
Credit Exposure" shall mean, at any time, the Dollar Equivalent
of the sum of (a) the aggregate undrawn
amount of all issued and outstanding
Letters of Credit, and (b) the aggregate of
the draws made on Letters of Credit
that have not been reimbursed by Borrowers
or converted to a Revolving Loan
pursuant to Section 2.2(b)(v) hereof.
"Leverage Ratio"
shall mean, as determined on a Consolidated basis and in
accordance with GAAP, the ratio of (a)
Consolidated Funded Indebtedness (as
determined on the last day of the most
recently completed fiscal quarter of
Agilysys) to (b) Consolidated EBITDA (for
the most recently completed four
fiscal quarters of Agilysys.
"LIBOR Fixed
Rate Loan" shall mean a Eurodollar Loan or an Alternate
Currency Loan.
"Lien" shall
mean any mortgage, deed of trust, security interest, lien
(statutory or other), charge, assignment,
hypothecation, encumbrance on, pledge
or deposit of, or conditional sale, leasing
(other than operating leases), sale
with a right of redemption or other title
retention agreement and any
capitalized lease with respect to any
property (real or personal) or asset.
"Liquidity
Ratio" shall mean, as determined on the last day of the most
recently completed fiscal quarter of
Agilysys, as determined on a Consolidated
basis and in accordance with GAAP, the
ratio of (a) an amount equal to the sum
of (i) cash and Cash Equivalent Investments
of the Companies, (ii) accounts
receivable of the Companies (excluding
accounts receivable due from any
Affiliate, shareholder or employee of a
Company), and (iii) the lesser of
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(A) Inventory of the Companies, or (B)
Seventy-Five Million Dollars
($75,000,000); to (b) the sum of (i) the
aggregate amount outstanding under the
Agreement for Inventory Financing, and (ii)
the Revolving Credit Exposure.
"Loan" shall
mean a Revolving Loan or Swing Loan granted to Borrowers by
the Lenders in accordance with Section
2.2(a) or (c) hereof.
"Loan Documents"
shall mean, collectively, this Agreement, each Note, each
Guaranty of Payment, all documentation
relating to each Letter of Credit, each
Pledge Agreement, if any, the Agent Fee
Letter and the Closing Fee Letter, as
any of the foregoing may from time to time
be amended, restated or otherwise
modified or replaced, and any other
document delivered pursuant thereto.
"Master Letter
of Credit Agreement" shall mean the Master Letter of Credit
Agreement in the form of the attached
Exhibit H.
"Material
Adverse Effect" shall mean a material adverse effect on (a) the
business, operations, property or condition
(financial or otherwise) of the
Companies taken as a whole, (b) the ability
of a Borrower or any other Credit
Party to perform its obligations under the
Loan Documents, or (c) the validity
or enforceability of this Agreement or any
of the other Loan Documents or the
rights and remedies of Agent or the Lenders
hereunder or thereunder.
"Material
Indebtedness Agreement" shall mean any debt instrument, lease
(capital, operating or otherwise),
guaranty, contract, commitment, agreement or
other arrangement evidencing or entered
into in connection with any Indebtedness
of any Company or the Companies in excess
of the amount of Fifteen Million
Dollars ($15,000,000).
"Maximum Amount"
shall mean, for each Lender, the amount set forth opposite
such Lender's name under the column headed
"Maximum Amount" as set forth on
Schedule 1 hereto, subject to decreases
determined pursuant to Section 2.8(c)
hereof and assignments of interests
pursuant to Section 10.10 hereof; provided,
however, that the Maximum Amount for the
Swing Line Lender shall exclude the
Swing Line Commitment (other than its pro
rata share), and the Maximum Amount of
the Fronting Lender shall exclude the
Letter of Credit Commitment (other than
its pro rata share).
"Maximum Rate"
shall mean that term as defined in Section 2.3(d) hereof.
"Moody's" shall
mean Moody's Investors Service, Inc., or any successor to
such company.
"Moody's Rating"
means, at any time, the then current rating (including the
failure to rate) by Moody's of Agilysys'
unsecured corporate credit rating.
"Multiemployer
Plan" shall mean a Pension Plan that is subject to the
requirements of Subtitle E of Title IV of
ERISA.
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"Non-Credit
Party" shall mean a Company that is not a Credit Party.
"Non-Credit
Party Exposure" shall mean the aggregate amount, incurred on or
after the Closing Date, of loans by a
Credit Party to, investments by a Credit
Party in, guaranties by a Credit Party of
Indebtedness of, and Letters of Credit
issued to or for the benefit of, a Company
that is a Non-Credit Party.
"Note" shall
mean each Revolving Credit Note or the Swing Line Note, or any
other promissory note delivered pursuant to
this Agreement.
"Notice of Loan"
shall mean a Notice of Loan in the form of the attached
Exhibit D.
"Obligations"
shall mean, collectively, (a) all Indebtedness and other
obligations incurred by a Borrower to
Agent, the Fronting Lender, the Swing Line
Lender, or any Lender pursuant to this
Agreement and the other Loan Documents,
and includes the principal of and interest
on all Loans and all obligations
pursuant to Letters of Credit, (b) each
extension, renewal or refinancing of the
foregoing, in whole or in part, (c) the
facility and other fees and any
prepayment fees payable hereunder, and (d)
all fees and charges in connection
with Letters of Credit.
"Obligor Asset
Ratio" shall mean, at any time, the ratio of (a) the sum of
the assets (in each case for each such
Company only, on a non-consolidated
basis) of each US Borrower, each Domestic
Guarantor of Payment and each Pledged
Foreign Subsidiary, to (b) the Consolidated
total assets of Agilysys, as
determined in accordance with GAAP.
"Obligor EBITDA
Ratio" shall mean, at any time, the ratio of (a) the sum of
the EBITDA (in each case for each such
Company only, on a non-consolidated
basis) of each US Borrower, each Domestic
Guarantor of Payment and each Pledged
Foreign Subsidiary (for the most recently
completed four fiscal quarters of
Agilysys), to (b) Consolidated EBITDA (for
the most recently completed four
fiscal quarters of Agilysys).
"Organizational
Documents" shall mean, with respect to any Person (other
than an individual), such Person's Articles
(Certificate) of Incorporation,
operating agreement or equivalent formation
documents, and Regulations (Bylaws),
or equivalent governing documents, and any
amendments to any of the foregoing.
"Other Taxes"
shall mean any and all present or future stamp or documentary
taxes or any other excise, ad valorem or
property taxes, goods and services
taxes, harmonized sales taxes and other
sales taxes, use taxes, value added
taxes, charges or similar taxes or levies
(other than Excluded Taxes) arising
from any payment made hereunder or from the
execution, delivery or enforcement
of, or otherwise with respect to, this
Agreement or any other Loan Document.
"Participant"
shall mean that term as defined in Section 10.11 hereof.
"Patriot Act"
shall mean Uniting and Strengthening America by Providing
Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001, USA
Patriot Act, Title III of Pub. L. 107-56,
signed into law October 26, 2001, as
amended from time to time.
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<PAGE>
"PBGC" shall
mean the Pension Benefit Guaranty Corporation, or its
successor.
"Pension Plan"
shall mean an ERISA Plan that is a "pension plan" (within
the meaning of ERISA Section 3(2)).
"Permitted
Foreign Subsidiary Loans and Investments" shall mean:
(a) the investments by Agilysys or a Domestic Subsidiary in a
Foreign
Subsidiary (that
is not a Credit Party), in such amounts existing as of the
Closing Date and
set forth on Schedule 5.11 hereto;
(b) the loans by Agilysys or a Domestic Subsidiary to a Foreign
Subsidiary (that
is not a Credit Party), in such amounts existing as of the
Closing Date and
set forth on Schedule 5.11 hereto;
(c) any investment by a Foreign Subsidiary in, or loan from a
Foreign
Subsidiary to,
or guaranty from a Foreign Subsidiary of Indebtedness of, a
Company that is
a Credit Party; and
(d) any Non-Credit Party Exposure, so long as the Non-Credit
Party
Exposure does
not exceed the aggregate amount of Thirty Million Dollars
($30,000,000) at
any time outstanding.
"Permitted
Investment" shall mean an investment of a Company in the stock
(or other debt or equity instruments) of a
Person (other than a Company or a
Person that will become a Company
immediately after giving effect to such
investment), so long as (a) the Company
making the investment is a Credit Party
or a Foreign Subsidiary; and (b) in
addition to those existing on the Closing
Date and listed on Schedule 5.11 hereto,
the aggregate amount of all such
investments of all Companies does not
exceed, at any time, an aggregate amount
(as determined when each such investment is
made) of Twenty-Five Million Dollars
($25,000,000).
"Person" shall
mean any individual, sole proprietorship, partnership, joint
venture, unincorporated organization,
corporation, limited liability company,
unlimited liability company, institution,
trust, estate, government or other
agency or political subdivision thereof or
any other entity.
"Pledge
Agreement" shall mean each of the Pledge Agreements, relating
to
the Pledged Securities, executed and
delivered by a US Borrower or a Domestic
Guarantor of Payment, as applicable, in
favor of Agent, for the benefit of the
Lenders, dated on or after the Closing
Date, and any other Pledge Agreement
executed by any other Domestic Subsidiary
on or after the Closing Date, as any
of the foregoing may from time to time be
amended, restated or otherwise
modified.
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<PAGE>
"Pledged Foreign
Subsidiary" shall mean a first-tier Foreign Subsidiary
whose capital stock (in an amount not to
exceed sixty-five percent (65%)) has
been pledged to Agent, for the benefit of
the Lenders.
"Pledged
Securities" shall mean up to sixty-five percent (65%) of the
shares of capital stock or other equity
interest of any Foreign Subsidiary.
(Schedule 5 hereto lists, as of the Closing
Date, all of the Pledged
Securities.)
"Prime Rate" shall
mean, for any day, the rate of interest in effect for
such day as publicly announced from time to
time by Agent as its prime rate
(whether or not such rate is actually
charged by Agent). Any change in the Prime
Rate announced by Agent shall take effect
at the opening of business on the day
specified in the public announcement of
such change.
"Register" shall
mean that term as defined in Section 10.10(i) hereof.
"Regularly
Scheduled Payment Date" shall mean the last day of each March,
June, September and December of each
year.
"Related
Writing" shall mean each Loan Document and any other (if any)
assignment, mortgage, security agreement,
guaranty agreement, subordination
agreement, financial statement, audit
report or other writing furnished by any
Credit Party, or any of its officers, to
Agent or the Lenders pursuant to or
otherwise in connection with this
Agreement.
"Reportable
Event" shall mean any of the events described in Section 4043
of ERISA except where notice is waived by
the PBGC.
"Requested
Availability" shall mean that term as defined in Section
2.13(b)
hereof.
"Required
Lenders" shall mean the holders of at least fifty-one percent
(51%), based upon each Lender's Commitment
Percentage, of (a) the Total
Commitment Amount, or, (b) after the
Commitment Period, the aggregate amount of
the Revolving Credit Exposure (excluding
the Swing Line Exposure); provided
that, if there shall be two or more
Lenders, Required Lenders shall constitute
at least two Lenders.
"Requirement of
Law" shall mean, as to any Person, any law, treaty, rule or
regulation or determination or policy
statement or interpretation of an
arbitrator or a court or other Governmental
Authority, in each case applicable
to or binding upon such Person or any of
its property.
"Restricted
Payment" shall mean, with respect to any Company, (a) any
Capital Distribution, or (b) any amount
paid by such Company in repayment,
redemption, retirement or repurchase,
directly or indirectly, of any
Subordinated Indebtedness (other than
Subordinated Indebtedness refinanced or
repaid with respect to an Acquisition
permitted pursuant to this Agreement).
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"Revolving
Credit Commitment" shall mean the obligation hereunder, during
the Commitment Period, of (a) each Lender
to make Revolving Loans up to the
Maximum Amount for such Lender, (b) the
Fronting Lender to issue and each Lender
to participate in Letters of Credit
pursuant to the Letter of Credit Commitment,
and (c) the Swing Line Lender to make and
each Lender to participate in Swing
Loans pursuant to the Swing Line
Commitment.
"Revolving
Credit Exposure" shall mean, at any time, the Dollar Equivalent
of the sum of (a) the aggregate principal
amount of all Revolving Loans
outstanding, (b) the Swing Line Exposure,
and (c) the Letter of Credit Exposure.
"Revolving
Credit Note" shall mean a US Borrower Revolving Credit Note or
a
Foreign Borrower Revolving Credit Note.
"Revolving Loan"
shall mean a Loan granted to US Borrowers or a Foreign
Borrower by the Lenders in accordance with
Section 2.2(a) hereof.
"S&P Rating"
shall mean, at any time, the then current rating (including
the failure to rate) by Standard &
Poor's of Agilysys' unsecured corporate
credit rating.
"SEC" shall mean
the United States Securities and Exchange Commission, or
any governmental body or agency succeeding
to any of its principal functions.
"Senior Notes
Indenture" shall mean that certain Indenture, dated as of
August 1, 1996, of Agilysys to U.S. Bank,
N.A. (formerly known as Star Bank,
N.A.), as trustee, as the same may from
time to time be amended, restated or
otherwise modified.
"Senior
Unsecured Notes" shall mean the nine and one-half percent (9
1/2%)
senior notes of Agilysys, due August 2006,
issued in the aggregate original
principal amount of One Hundred Fifty
Million Dollars ($150,000,000), under the
Senior Notes Indenture.
"Significant
Asset Disposition" shall mean a Disposition or a related
series of Dispositions in which the
aggregate fair market value or book value,
whichever is greater, of the assets sold,
leased, transferred or otherwise
disposed of shall be greater than or equal
to five percent (5%) of the
Consolidated total assets of the
Companies.
"Spot Rate"
shall mean, for any currency, the rate quoted by Agent as the
spot rate for the purchase by Agent of such
currency at the prevailing interbank
rate with another currency through its FX
Trading Office at approximately 9:00
A.M. (Eastern time) on the date two
Business Days prior to the date as of which
the foreign exchange computation is
made.
"Standard &
Poor's" shall mean Standard & Poor's Ratings Group, a
division
of McGraw-Hill, Inc., or any successor to
such company.
"Subordinated"
shall mean, as applied to Indebtedness, Indebtedness that
shall have been subordinated (by written
terms or written agreement being, in
either case, in form and substance
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<PAGE>
satisfactory to Agent and the Required
Lenders) in favor of the prior payment in
full of the Obligations.
"Subsidiary"
shall mean (a) a corporation more than fifty percent (50%) of
the Voting Power of which is owned,
directly or indirectly, by a Borrower or by
one or more other subsidiaries of such
Borrower or by such Borrower and one or
more subsidiaries of such Borrower, (b) a
partnership, limited liability company
or unlimited liability company of which a
Borrower, one or more other
subsidiaries of such Borrower or such
Borrower and one or more subsidiaries of
such Borrower, directly or indirectly, is a
general partner or managing member,
as the case may be, or otherwise has an
ownership interest greater than fifty
percent (50%) of all of the ownership
interests in such partnership, limited
liability company or unlimited liability
company, or (c) any other Person (other
than a corporation, partnership, limited
liability company or unlimited
liability company) in which a Borrower, one
or more other subsidiaries of such
Borrower or such Borrower and one or more
subsidiaries of such Borrower,
directly or indirectly, has at least a
majority interest in the Voting Power or
the power to elect or direct the election
of a majority of directors or other
governing body of such Person.
"Subsidiary
Borrower" shall mean a Borrower other than Agilysys.
"Swing Line
Commitment" shall mean the commitment of the Swing Line Lender
to make Swing Loans to US Borrowers up to
the aggregate amount at any time
outstanding of Twenty Million Dollars
($20,000,000).
"Swing Line
Exposure" shall mean, at any time, the aggregate principal
amount of all Swing Loans outstanding.
"Swing Line
Lender" shall mean LaSalle Bank National Association, as holder
of the Swing Line Commitment.
"Swing Line
Note" shall mean the Swing Line Note executed and delivered
pursuant to Section 2.4(c) hereof.
"Swing Loan"
shall mean a loan that shall be denominated in Dollars granted
to US Borrowers by the Swing Line Lender
under the Swing Line Commitment, in
accordance with Section 2.2(c) hereof.
"Swing Loan
Maturity Date" shall mean, with respect to any Swing Loan, the
earlier of (a) thirty (30) days after the
date such Swing Loan is made, or (b)
the last day of the Commitment Period.
"Taxes" shall
mean any and all present or future taxes of any kind,
including but not limited to, levies,
imposts, duties, surtaxes, charges, fees,
deductions or withholdings now or hereafter
imposed, levied, collected, withheld
or assessed by any Governmental Authority
(together with any interest,
penalties, fines, additions to taxes or
similar liabilities with respect
thereto) other than Excluded Taxes.
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<PAGE>
"Total
Commitment Amount" shall mean the principal amount of Two
Hundred
Million Dollars ($200,000,000).
"U.C.C." shall
mean the Uniform Commercial Code, as in effect from time to
time in Ohio.
"U.C.C.
Financing Statement" shall mean a financing statement filed or
to
be filed in accordance with the Uniform
Commercial Code, as in effect from time
to time, in the relevant state or
states.
"US Borrower"
shall mean Agilysys and each of the Domestic Subsidiaries of
Agilysys set forth on Schedule 2 hereto,
together with any other Domestic
Subsidiary of Agilysys that, on or after
the Closing Date, shall have satisfied,
in the opinion of Agent, the requirements
of Section 2.13(a) hereof.
"US Borrower
Revolving Credit Note" shall mean a US Borrower Revolving
Credit Note executed and delivered by US
Borrowers pursuant to Section 2.4(a)
hereof.
"Voting Power"
shall mean, with respect to any Person, the exclusive
ability to control, through the ownership
of shares of capital stock,
partnership interests, membership interests
or otherwise, the election of
members of the board of directors or other
similar governing body of such
Person. The holding of a designated
percentage of Voting Power of a Person means
the ownership of shares of capital stock,
partnership interests, membership
interests or other interests of such Person
sufficient to control exclusively
the election of that percentage of the
members of the board of directors or
similar governing body of such Person.
"Welfare Plan"
shall mean an ERISA Plan that is a "welfare plan" within the
meaning of ERISA Section 3(l).
Section 1.2.
Accounting Terms. Any accounting term not specifically defined
in this Article I shall have the meaning
ascribed thereto by GAAP.
Section 1.3.
Terms Generally. The foregoing definitions shall be applicable
to the singular and plurals of the
foregoing defined terms.
ARTICLE II. AMOUNT AND TERMS OF CREDIT
Section 2.1.
Amount and Nature of Credit.
(a) Subject to
the terms and conditions of this Agreement, the Lenders,
during the Commitment Period and to the
extent hereinafter provided, shall make
Loans to Borrowers, participate in Swing
Loans made by the Swing Line Lender to
US Borrowers, and issue or participate in
Letters of Credit at the request of
Administrative Borrower, in such aggregate
amount as Borrowers shall request
pursuant to the Commitment; provided,
however, that in no event shall the
Revolving Credit Exposure be in excess of
the Total Commitment Amount.
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<PAGE>
(b) Each Lender,
for itself and not one for any other, agrees to make
Loans, participate in Swing Loans, and
issue or participate in Letters of
Credit, during the Commitment Period, on
such basis that, immediately after the
completion of any borrowing by Borrowers or
the issuance of a Letter of Credit:
(i) the Dollar Equivalent of the aggregate outstanding
principal
amount of Loans
made by such Lender (other than Swing Loans made by the
Swing Line
Lender), when combined with such Lender's pro rata share, if
any, of the
Letter of Credit Exposure and the Swing Line Exposure, shall
not be in excess
of the Maximum Amount for such Lender; and
(ii) the aggregate outstanding principal amount of Loans (other
than
Swing Loans)
made by such Lender shall represent that percentage of the
aggregate
principal amount then outstanding on all Loans (other than
Swing
Loans) that
shall be such Lender's Commitment Percentage.
Each borrowing (other than Swing Loans
which shall be risk participated on a pro
rata basis) from the Lenders shall be made
pro rata according to the respective
Commitment Percentages of the Lenders.
(c) The Loans
may be made as Revolving Loans as described in Section 2.2(a)
hereof and as Swing Loans as described in
Section 2.2(c) hereof, and Letters of
Credit may be issued in accordance with
Section 2.2(b) hereof.
Section 2.2.
Revolving Credit.
(a) Revolving
Loans. Subject to the terms and conditions of this Agreement,
during the Commitment Period, the Lenders
shall make a Revolving Loan or
Revolving Loans to US Borrowers or a
Foreign Borrower in such amount or amounts
as Administrative Borrower may from time to
time request, but not exceeding in
aggregate principal amount at any time
outstanding hereunder the Total
Commitment Amount, when such Revolving
Loans are combined with the Letter of
Credit Exposure and the Swing Line
Exposure; provided, however, that Borrowers
shall not request any Alternate Currency
Loan (and the Lenders shall not be
obligated to make an Alternate Currency
Loan) if, after giving effect thereto,
the Alternate Currency Exposure would
exceed the Alternate Currency Maximum
Amount. Borrowers shall have the option,
subject to the terms and conditions set
forth herein, to borrow Revolving Loans,
maturing on the last day of the
Commitment Period, by means of any
combination of Base Rate Loans, Eurodollar
Loans or Alternate Currency Loans. With
respect to each Alternate Currency Loan,
subject to the other provisions of this
Agreement, US Borrowers or the
appropriate Foreign Borrower, as
applicable, shall receive all of the proceeds
of such Alternate Currency Loan in one
Alternate Currency and repay such
Alternate Currency Loan in the same
Alternate Currency. Subject to the
provisions of this Agreement, Borrowers
shall be entitled under this Section
2.2(a) to borrow funds, repay the same in
whole or in part and re-borrow
hereunder at any time and from time to time
during the Commitment Period.
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<PAGE>
(b) Letters of
Credit.
(i) Generally. Subject to the terms and conditions of this
Agreement,
during the
Commitment Period, the Fronting Lender shall, in its own name,
on behalf of the
Lenders, issue such Letters of Credit for the account of a
Credit Party, as
Administrative Borrower may from time to time request.
Administrative
Borrower shall not request any Letter of Credit (and the
Fronting Lender
shall not be obligated to issue any Letter of Credit) if,
after giving
effect thereto, (A) the Letter of Credit Exposure would exceed
the Letter of
Credit Commitment, (B) the Revolving Credit Exposure would
exceed the Total
Commitment Amount, or (C) with respect to a request for a
Letter of Credit
to be issued in an Alternate Currency, the Alternate
Currency
Exposure would exceed the Alternate Currency Maximum Amount.
The
issuance of each
Letter of Credit shall confer upon each Lender the
benefits and
liabilities of a participation consisting of an undivided pro
rata interest in
the Letter of Credit to the extent of such Lender's
Commitment
Percentage. Unless otherwise agreed by Agent as the Fronting
Lender, in the
event of a conflict between this Agreement and the Master
Letter of Credit
Agreement, which conflict cannot be reasonably resolved to
give meaning to
the provisions of both agreements, this Agreement will
control.
(ii) Request for Letter of Credit. Each request for a Letter of
Credit
shall be
delivered to Agent (and to the Fronting Lender, if the Fronting
Lender is a
Lender other than Agent) by an Authorized Officer not later
than 12:00 noon
(Eastern time) three Business Days prior to the day upon
which the Letter
of Credit is to be issued. Each such request shall be in a
form acceptable
to Agent (and the Fronting Lender, if the Fronting Lender
is a Lender
other than Agent) and shall specify the face amount thereof,
the account
party, the beneficiary, the intended date of issuance, the
expiry date
thereof, the Alternate Currency if other than Dollars are
requested, and
the nature of the transaction to be supported thereby.
Concurrently
with each such request, Administrative Borrower, and any
Credit Party for
whose account the Letter of Credit is to be issued, shall
execute and
deliver to the Fronting Lender an appropriate application and
agreement, being
in the standard form of the Fronting Lender for such
letters of
credit (which as of the Closing Date is, with respect to Agent
as the Fronting
Lender, the Master Letter of Credit Agreement), as amended
to conform to
the provisions of this Agreement if required by Agent. Agent
shall give the
Fronting Lender and each Lender notice of each such request
for a Letter of
Credit.
(iii) Standby Letters of Credit. With respect to each Letter of
Credit
and the drafts
thereunder, if any, whether issued for the account of a
Borrower or any
other Credit Party, US Borrowers agree (and each Foreign
Borrower agrees
to pay, with respect to Letters of Credit issued for its
own account) to
(A) pay to Agent, for the pro rata benefit of the Lenders,
a non-refundable
commission based upon the face amount of such Letter of
Credit, which
shall be paid quarterly in arrears, on each Regularly
Scheduled
Payment Date, at a rate per annum equal to the Applicable
Margin
for LIBOR Fixed Rate Loans (in
effect on the Regularly Scheduled Payment
Date) multiplied
by the face amount of such Letter of Credit; (B) pay to
Agent, for the
sole benefit of the Fronting Lender, an additional Letter of
Credit fee,
which shall be paid on each date that such
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Letter of Credit
shall be issued, amended or renewed at the rate of
one-eighth
percent (1/8%) of the face amount of such Letter of Credit; and
(C) pay to
Agent, for the sole benefit of the Fronting Lender, such other
issuance,
amendment, negotiation, draw, acceptance, telex, courier,
postage
and similar
transactional fees as are generally charged by the Fronting
Lender under its
fee schedule as in effect from time to time.
(iv) Refunding of Letters of Credit with Revolving Loans. Whenever
a
Letter of Credit
shall be drawn, US Borrowers, and any Foreign Borrower for
whose account
such Letter of Credit was issued, shall immediately reimburse
the Fronting
Lender for the amount drawn. In the event that the amount
drawn is not in
an Alternate Currency and shall not have been reimbursed by
such Borrowers,
as applicable, within one Business Day of the drawing of
such Letter of Credit,
at the sole option of Agent (and the Fronting
Lender, if the
Fronting Lender is a Lender other than Agent), Borrowers
shall be deemed
to have requested a Revolving Loan, subject to the
provisions of
Sections 2.2(a) and 2.5 hereof (other than the requirement
set forth in
Section 2.5(d) hereof), in the amount drawn. Such Revolving
Loan shall be
evidenced by the Revolving Credit Notes (or, if a Lender has
not requested a
Revolving Credit Note, by the records of Agent and such
Lender). Each
Lender agrees to make a Revolving Loan on the date of such
notice, subject
to no conditions precedent whatsoever. Each Lender
acknowledges and
agrees that its obligation to make a Revolving Loan
pursuant to
Section 2.2(a) hereof when required by this Section 2.2(b)(iv)
shall be
absolute and unconditional and shall not be affected by any
circumstance
whatsoever, including, without limitation, the occurrence and
continuance of a
Default or Event of Default, and that its payment to
Agent, for the
account of the Fronting Lender, of the proceeds of such
Revolving Loan
shall be made without any offset, abatement, recoupment,
counterclaim,
withholding or reduction whatsoever and whether or not such
Lender's
Revolving Credit Commitment shall have been reduced or
terminated.
Borrowers
irrevocably authorize and instruct Agent to apply the proceeds
of
any borrowing
pursuant to this Section 2.2(b)(iv) to reimburse, in full
(other than the
Fronting Lender's pro rata share of such borrowing), the
Fronting Lender
for the amount drawn on such Letter of Credit. Each such
Revolving Loan
shall be deemed to be a Base Rate Loan unless otherwise
requested by and
available to Borrowers hereunder. Each Lender is hereby
authorized to
record on its records relating to its Revolving Credit Note
(or, if such
Lender has not requested a Revolving Credit Note, its records
relating to
Revolving Loans) such Lender's pro rata share of the amounts
paid and not
reimbursed on the Letters of Credit.
(v) Participation in Letters of Credit. If, for any reason, Agent
(and
the Fronting
Lender if the Fronting Lender is a Lender other than Agent)
shall be unable to or, in the
opinion of Agent, it shall be impracticable
to, convert any
Letter of Credit to a Revolving Loan pursuant to the
preceding
subsection, or if the amount not reimbursed is a Letter of
Credit
drawn in an
Alternate Currency, Agent (and the Fronting Lender if the
Fronting Lender
is a Lender other than Agent) shall have the right to
request that
each Lender purchase a participation in the amount due with
respect to such
Letter of Credit, and Agent shall promptly notify each
Lender thereof
(by facsimile or telephone, confirmed in writing). Upon such
notice, but
without further action, the Fronting Lender hereby agrees to
grant to each
Lender, and each Lender hereby agrees to acquire from the
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Fronting Lender,
an undivided participation interest in the amount due with
respect to such
Letter of Credit in an amount equal to such Lender's
Commitment
Percentage of the principal amount due with respect to such
Letter of
Credit. In consideration and in furtherance of the foregoing,
each Lender
hereby absolutely and unconditionally agrees, upon receipt of
notice as
provided above, to pay to Agent, for the account of the
Fronting
Lender, such
Lender's ratable share of the amount due with respect to such
Letter of Credit
(determined in accordance with such Lender's Commitment
Percentage).
Each Lender acknowledges and agrees that its obligation to
acquire
participations in the amount due under any Letter of Credit that
is
drawn but not
reimbursed by Borrowers pursuant to this Section 2.2(b)(v)
shall be
absolute and unconditional and shall not be affected by any
circumstance
whatsoever, including, without limitation, the occurrence and
continuance of a
Default or Event of Default, and that each such payment
shall be made
without any offset, abatement, recoupment, counterclaim,
withholding or
reduction whatsoever and whether or not such Lender's
Revolving Credit
Commitment shall have been reduced or terminated. Each
Lender shall
comply with its obligation under this Section 2.2(b)(v) by
wire transfer of
immediately available funds (in Dollars, except in the
case of a Letter
of Credit issued and drawn in an Alternate Currency, and,
in such case, in
such Alternate Currency), in the same manner as provided
in Section 2.5
hereof with respect to Revolving Loans. Each Lender is
hereby
authorized to record on its records such Lender's pro rata share
of
the amounts paid
and not reimbursed on the Letters of Credit.
(c) Swing
Loans.
(i) Generally. Subject to the terms and conditions of this
Agreement,
during the
Commitment Period, the Swing Line Lender shall make a Swing
Loan
or Swing Loans
to US Borrowers in such amount or amounts as Administrative
Borrower,
through an Authorized Officer, may from time to time request;
provided that
Administrative Borrower shall not request any Swing Loan if,
after giving
effect thereto, (A) the Revolving Credit Exposure would exceed
the Total
Commitment Amount, or (B) the Swing Line Exposure would exceed
the Swing Line
Commitment. Each Swing Loan shall be due and payable on the
Swing Loan
Maturity Date applicable thereto. US Borrowers shall not
request
that more than
two Swing Loans be outstanding at any time. Each Swing Loan
shall be made in
Dollars.
(ii) Refunding of Swing Loans. If the Swing Line Lender so elects,
by
giving notice to
Administrative Borrower and the Lenders, US Borrowers
agree that the
Swing Line Lender shall have the right, in its sole
discretion, to
require that any Swing Loan be refinanced as a Revolving
Loan. Such
Revolving Loan shall be a Base Rate Loan unless otherwise
requested by and
available to US Borrowers hereunder. Upon receipt of such
notice by US
Borrowers and the Lenders, US Borrowers shall be deemed, on
such day, to
have requested a Revolving Loan in the principal amount of the
Swing Loan in
accordance with Sections 2.2(a) and 2.5 hereof (other than
the requirement
set forth in Section 2.5(d) hereof). Such Revolving Loan
shall be
evidenced by the US Borrower Revolving Credit Notes (or, if a
Lender has not
requested a US Borrower Revolving Credit Note, by the
records of Agent
and such Lender). Each Lender agrees to make a
27
<PAGE>
Revolving Loan
on the date of such notice, subject to no conditions
precedent
whatsoever. Each Lender acknowledges and agrees that such
Lender's
obligation to make a Revolving Loan pursuant to Section 2.2(a)
hereof when
required by this Section 2.2(c)(ii) is absolute and
unconditional
and shall not be affected by any circumstance whatsoever,
including,
without limitation, the occurrence and continuance of a Default
or Event of
Default, and that its payment to Agent, for the account of the
Swing Line
Lender, of the proceeds of such Revolving Loan shall be made
without any
offset, abatement, recoupment, counterclaim, withholding or
reduction
whatsoever and whether or not such Lender's Revolving Credit
Commitment shall
have been reduced or terminated. US Borrowers irrevocably
authorize and
instruct Agent to apply the proceeds of any borrowing
pursuant to this
Section 2.2(c)(ii) to repay in full such Swing Loan. Each
Lender is hereby
authorized to record on its records relating to its US
Borrower
Revolving Credit Note (or, if such Lender has not requested a
US
Borrower
Revolving Credit Note, its records relating to Revolving Loans)
such Lender's
pro rata share of the amounts paid to refund such Swing Loan.
(iii) Participation in Swing Loans. If, for any reason, Agent
is
unable to or, in
the opinion of Agent, it is impracticable to, convert any
Swing Loan to a
Revolving Loan pursuant to the preceding Section
2.2(c)(ii), then
on any day that a Swing Loan is outstanding (whether
before or after
the maturity thereof), Agent shall have the right to
request that
each Lender purchase a participation in such Swing Loan, and
Agent shall
promptly notify each Lender thereof (by facsimile or telephone,
confirmed in
writing). Upon such notice, but without further action, the
Swing Line
Lender hereby agrees to grant to each Lender, and each Lender
hereby agrees to
acquire from the Swing Line Lender, an undivided
participation
interest in such Swing Loan in an amount equal to such
Lender's
Commitment Percentage of the principal amount of such Swing
Loan.
In consideration
and in furtherance of the foregoing, each Lender hereby
absolutely and
unconditionally agrees, upon receipt of notice as provided
above, to pay to
Agent, for the benefit of the Swing Line Lender, such
Lender's ratable
share of such Swing Loan (determined in accordance with
such Lender's
Commitment Percentage). Each Lender acknowledges and agrees
that its
obligation to acquire participations in Swing Loans pursuant to
this Section
2.2(c)(iii) is absolute and unconditional and shall not be
affected by any
circumstance whatsoever, including, without limitation, the
occurrence and
continuance of a Default or an Event of Default, and that
each such
payment shall be made without any offset, abatement,
recoupment,
counterclaim,
withholding or reduction whatsoever and whether or not such
Lender's
Revolving Credit Commitment shall have been reduced or
terminated.
Each Lender
shall comply with its obligation under this Section 2.2(c)(iii)
by wire transfer
of immediately available funds, in the same manner as
provided in
Section 2.5 hereof with respect to Revolving Loans to be made
by such
Lender.
Section 2.3.
Interest.
(a) Revolving
Loans.
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(i) Base Rate Loan. The appropriate Borrower or Borrowers shall
pay
interest on the
unpaid principal amount of a Base Rate Loan outstanding
from time to
time from the date thereof until paid at the Derived Base Rate
from time to
time in effect. Interest on such Base Rate Loan shall be
payable,
commencing December 31, 2005, and on each Regularly Scheduled
Payment Date
thereafter and at the maturity thereof.
(ii) LIBOR Fixed Rate Loans. The appropriate Borrower or
Borrowers
shall pay
interest on the unpaid principal amount of each LIBOR Fixed
Rate
Loan outstanding
from time to time, fixed in advance on the first day of
the Interest
Period applicable thereto through the last day of the Interest
Period
applicable thereto (but subject to changes in the Applicable
Margin
for LIBOR Fixed
Rate Loans), at the Derived LIBOR Fixed Rate. Interest on
such LIBOR Fixed
Rate Loan shall be payable on each Interest Adjustment
Date with
respect to an Interest Period (provided that if an Interest
Period shall
exceed three months, the interest must be paid every three
months,
commencing three months from the beginning of such Interest
Period).
(b) Swing Loans.
US Borrowers shall pay interest to Agent, for the sole
benefit of the Swing Line Lender (and any
Lender that shall have purchased a
participation in such Swing Loan), on the
unpaid principal amount of each Swing
Loan outstanding from time to time from the
date thereof until paid at the Base
Rate from time to time in effect. Interest
on each Swing Loan shall be payable
on the Swing Loan Maturity Date applicable
thereto. Each Swing Loan shall bear
interest for a minimum of one day.
(c) Default
Rate. Anything herein to the contrary notwithstanding, if an
Event of Default shall occur, upon the
election of the Required Lenders (i) the
principal of each Loan and the unpaid
interest thereon shall bear interest,
until paid, at the Default Rate, (ii) the
fee for the aggregate undrawn amount
of all issued and outstanding Letters of
Credit shall be increased by two
percent (2%) in excess of the rate
otherwise applicable thereto, and (iii) in
the case of any other amount not paid when
due from Borrowers hereunder or under
any other Loan Document, such amount shall
bear interest at the Default Rate;
provided that, during an Event of Default
under Section 7.1 or 7.11 hereof, the
applicable Default Rate shall apply without
any election or action on the part
of Agent or any Lender.
(d) Limitation
on Interest. In no event shall the rate of interest
hereunder exceed the maximum rate allowable
by law. Notwithstanding anything to
the contrary contained in any Loan
Document, the interest paid or agreed to be
paid under the Loan Documents shall not
exceed the maximum rate of non-usurious
interest permitted by applicable law (the
"Maximum Rate"). If Agent or any
Lender shall receive interest in an amount
that exceeds the Maximum Rate, the
excess interest shall be applied to the
principal of the Loans or, if it exceeds
such unpaid principal, refunded to the
applicable Borrower. In determining
whether the interest contracted for,
charged, or received by Agent or a Lender
exceeds the Maximum Rate, such Person may,
to the extent permitted by applicable
law, (i) characterize any payment that is
not principal as an expense, fee, or
premium rather than interest, (ii) exclude
voluntary prepayments and the effects
thereof, and (iii) amortize, prorate,
allocate, and spread in equal or unequal
parts the total amount of interest
throughout the contemplated term of the
Obligations.
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<PAGE>
Section 2.4.
Evidence of Indebtedness.
(a) US Borrower
Revolving Loans. Upon the request of a Lender, to evidence
the obligation of US Borrowers to repay the
Base Rate Loans and LIBOR Fixed Rate
Loans made by such Lender and to pay
interest thereon, US Borrowers shall
execute a US Borrower Revolving Credit Note
in the form of the attached Exhibit
A, payable to the order of such Lender in
the principal amount of its Revolving
Credit Commitment or, if less, the
aggregate unpaid principal amount of
Revolving Loans made by such Lender;
provided, however, that the failure of a
Lender to request a US Borrower Revolving
Credit Note shall in no way detract
from US Borrowers' obligations to such
Lender hereunder.
(b) Foreign Borrower
Revolving Loans. Upon the request of a Lender, to
evidence the obligation of each Foreign
Borrower to repay the Base Rate Loans
and LIBOR Fixed Rate Loans made by such
Lender and to pay interest thereon, each
such Foreign Borrower shall execute a
Foreign Borrower Revolving Credit Note in
the form of the attached Exhibit B, payable
to the order of such Lender in the
principal amount of its Revolving Credit
Commitment or, if less, the aggregate
unpaid principal amount of Revolving Loans
made by such Lender; provided,
however, that the failure of a Lender to
request a Foreign Borrower Revolving
Credit Note shall in no way detract from
such Foreign Borrower's obligations to
such Lender hereunder.
(c) Swing Loan.
Upon the request of the Swing Line Lender, to evidence the
obligation of US Borrowers to repay the
Swing Loans and to pay interest thereon,
US Borrowers shall execute a Swing Line
Note in the form of the attached Exhibit
C, and payable to the order of the Swing
Line Lender in the principal amount of
the Swing Line Commitment, or, if less, the
aggregate unpaid principal amount of
Swing Loans made by the Swing Line Lender;
provided, however, that the failure
of the Swing Line Lender to request a Swing
Line Note shall in no way detract
from US Borrowers' obligations to the Swing
Line Lender hereunder.
Section 2.5.
Notice of Credit Event; Funding of Loans.
(a) Notice of
Credit Event. Administrative Borrower, through an Authorized
Officer, shall provide to Agent a Notice of
Loan prior to (i) 12:00 noon
(Eastern time) on the proposed date of
borrowing or conversion of any Base Rate
Loan, (ii) 12:00 noon (Eastern time) three
Business Days prior to the proposed
date of borrowing, conversion or
continuation of any Eurodollar Loan, (iii)
12:00 noon (Eastern time) three Business
Days prior to the proposed date of
borrowing of any Alternate Currency Loan,
and (iv) 3:00 P.M. (Eastern time) on
the proposed date of borrowing of any Swing
Loan. Administrative Borrower shall
comply with the notice provisions set forth
in Section 2.2(b)(ii) hereof with
respect to Letters of Credit.
(b) Funding of
Loans. Agent shall notify each Lender of the date, amount,
type of currency and Interest Period (if
applicable) promptly upon the receipt
of a Notice of Loan, and, in any event, by
2:00 P.M. (Eastern time) on the date
such Notice of Loan is received. On the
date that the Credit Event set forth in
such Notice of Loan is to occur, each such
Lender shall provide to Agent, not
later than 3:00 P.M. (Eastern time), the
amount in Dollars, or, with respect to
an Alternate Currency, in the applicable
Alternate Currency, in federal or other
immediately
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<PAGE>
available funds, required of it. If Agent
shall elect to advance the proceeds of
such Loan prior to receiving funds from
such Lender, Agent shall have the right,
upon prior notice to Administrative
Borrower, to debit any account of any US
Borrower or otherwise receive such amount
from US Borrowers or the appropriate
Foreign Borrower, on demand, in the event
that such Lender shall fail to
reimburse Agent in accordance with this
subsection. Agent shall also have the
right to receive interest from such Lender
at the Federal Funds Effective Rate
in the event that such Lender shall fail to
provide its portion of the Loan on
the date requested and Agent shall elect to
provide such funds.
(c) Conversion
of Loans. At the request of Administrative Borrower to
Agent, subject to the notice and other
provisions of this Section 2.5, the
Lenders shall convert a Base Rate Loan to
one or more Eurodollar Loans at any
time and shall convert a Eurodollar Loan to
a Base Rate Loan on any Interest
Adjustment Date applicable thereto. Swing
Loans may be converted by the Swing
Line Lender to Revolving Loans in
accordance with Section 2.2(c)(ii) hereof. No
Alternate Currency Loan may be converted to
a Base Rate Loan or Eurodollar Loan
and no Base Rate Loan or Eurodollar Loan
may be converted to an Alternate
Currency Loan.
(d) Minimum Amount.
Each request for:
(i) a Base Rate Loan shall be in an amount of not less than
Five
Million Dollars
($5,000,000), increased by increments of One Million
Dollars
($1,000,000);
(ii) a LIBOR Fixed Rate Loan shall be in an amount (or, with
respect
to an Alternate
Currency Loan, such approximately comparable amount as
shall result in
a rounded number) of not less than Five Million Dollars
($5,000,000),
increased by increments of One Million Dollars ($1,000,000)
(or, with
respect to an Alternate Currency Loan, such approximately
comparable
amount as shall result in a rounded number); and
(iii) a Swing Loan shall be in an amount of not less than Five
Hundred
Thousand Dollars
($500,000).
(e) Interest
Periods. Borrowers shall not request that LIBOR Fixed Rate
Loans be outstanding for more than eight
different Interest Periods at the same
time.
Section 2.6.
Payment on Loans and Other Obligations.
(a) Payments
Generally. Each payment made hereunder by a Credit Party shall
be made without any offset, abatement,
recoupment, counterclaim, withholding or
reduction whatsoever.
(b) Payments in
Alternate Currency. With respect to any Alternate Currency
Loan or any Alternate Currency Letter of
Credit, all payments (including
prepayments) to any Lender of the principal
of or interest on such Alternate
Currency Loan or Alternate Currency Letter
of Credit shall be made in the same
Alternate Currency as the original Loan or
Letter of Credit. All such payments
shall be remitted by Borrowers to Agent, at
the address of Agent for notices
31
<PAGE>
referred to in Section 10.4 hereof, (or at
such other office or account as
designated in writing by Agent to
Administrative Borrower) for the account of
the Lenders (or the Fronting Lender or the
Swing Line Lender, as appropriate)
not later than 12:00 noon (Eastern time) on
the due date thereof in same day
funds. Any payments received by Agent after
12:00 noon (Eastern time) shall be
deemed to have been made and received on
the next Business Day.
(c) Payments in
Dollars. With respect to (i) any Loan (other than an
Alternate Currency Loan), or (ii) any other
payment to Agent and the Lenders
that shall not be covered by subsection (b)
above, all such payments (including
prepayments) to Agent of the principal of
or interest on such Loan or other
payment, including but not limited to
principal, interest, fees or any other
amount owed by any Borrower under this
Agreement, shall be made in Dollars. All
payments described in this Section 2.6(c)
shall be remitted to Agent, at the
address of Agent for notices referred to in
Section 10.4 hereof for the account
of the Lenders (or the Fronting Lender or
the Swing Line Lender, as appropriate)
not later than 12:00 noon (Eastern time) on
the due date thereof in immediately
available funds. Any such payments received
by Agent after 11:00 A.M. (Eastern
time) shall be deemed to have been made and
received on the next Business Day.
(d) Payments to
Lenders. Upon Agent's receipt of payments hereunder, Agent
shall immediately distribute to each Lender
(except with respect to Swing Loans,
which shall be paid to the Swing Line
Lender or, with respect to Letters of
Credit, certain of which payments shall be
paid to the Fronting Lender) its
ratable shares, if any, of the amount of
principal, interest, and facility and
other fees received by Agent for the
account of such Lender. Payments received
by Agent in Dollars shall be delivered to
the Lenders in Dollars in immediately
available funds. Payments received by Agent
in any Alternate Currency shall be
delivered to the Lenders in such Alternate
Currency in same day funds. Each
Lender shall record any principal, interest
or other payment, the principal
amounts of Base Rate Loans, LIBOR Fixed
Rate Loans, Swing Loans and Letters of
Credit, the type of currency for each Loan,
all prepayments and the applicable
dates, including Interest Periods, with
respect to the Loans made, and payments
received by such Lender, by such method as
such Lender may generally employ;
provided, however, that failure to make any
such entry shall in no way detract
from the obligations of Borrowers under
this Agreement or any Note. The
aggregate unpaid amount of Loans, types of
Loans, Interest Periods and similar
information with respect to the Loans and
Letters of Credit set forth on the
records of Agent shall be rebuttably
presumptive evidence with respect to such
information, including the amounts of
principal, interest and fees owing to each
Lender.
(e) Timing of
Payments. Whenever any payment to be made hereunder,
including, without limitation, any payment
to be made on any Loan, shall be
stated to be due on a day that is not a
Business Day, such payment shall be made
on the next Business Day and such extension
of time shall in each case be
included in the computation of the interest
payable on such Loan; provided,
however, that, with respect to a LIBOR
Fixed Rate Loan, if the next Business Day
shall fall in the succeeding calendar
month, such payment shall be made on the
preceding Business Day and the relevant
Interest Period shall be adjusted
accordingly.
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Section 2.7.
Prepayment.
(a) Right to
Prepay. Borrowers shall have the right at any time or from
time to time to prepay, on a pro rata basis
for all of the Lenders, all or any
part of the principal amount of the
Revolving Loans then outstanding, as
designated by Administrative Borrower, plus
interest accrued on the amount so
prepaid to the date of such prepayment, and
any amount payable under Article III
hereof with respect to the amount being
prepaid. US Borrowers shall have the
right, at any time or from time to time, to
prepay, for the benefit of the Swing
Line Lender (and any Lender that has
purchased a participation in such Swing
Loan), all or any part of the principal
amount of the Swing Loans then
outstanding, as designated by
Administrative Borrower, plus interest accrued on
the amount so prepaid to the date of such
prepayment, and any amount payable
under Article III hereof with respect to
the amount being prepaid.
(b) Notice of
Prepayment. Administrative Borrower shall give Agent notice
of prepayment of a Base Rate Loan or Swing
Loan by no later than 12:00 noon
(Eastern time) on the Business Day on which
such prepayment is to be made and
written notice of the prepayment of any
LIBOR Fixed Rate Loan not later than
2:00 P.M. (Eastern time) three Business
Days before the Business Day on which
such prepayment is to be made.
(c) Minimum
Amount. Each prepayment of a LIBOR Fixed Rate Loan shall be in
the principal amount of not less than One
Million Dollars ($1,000,000) (or, with
respect to an Alternate Currency Loan,
rounded to a comparable amount of such
amount) or, with respect to a Swing Loan,
the principal balance of such Swing
Loan, except in the case of a mandatory
payment pursuant to Section 2.10 or
Article III hereof.
Section 2.8.
Facility and Other Fees; Reduction of Commitment.
(a) Facility
Fee. US Borrowers shall pay to Agent, for the ratable account
of the Lenders, as a consideration for the
Commitment, a facility fee from the
Closing Date to and including the last day
of the Commitment Period, payable
quarterly, at a rate per annum equal to (i)
the Applicable Facility Fee Rate in
effect on the payment date, multiplied by
(ii) the average daily Total
Commitment Amount in effect during such
quarter. The facility fee shall be
payable in arrears, on December 31, 2005
and continuing on each Regularly
Scheduled Payment Date thereafter, and on
the last day of the Commitment Period.
(b) Agent Fee.
US Borrowers shall pay to Agent, for its sole benefit, the
fees set forth in the Agent Fee Letter.
(c) Optional
Reduction of Commitment. Borrowers may at any time and from
time to time permanently reduce in whole or
ratably in part the Total Commitment
Amount to an amount not less than the then
existing Revolving Credit Exposure,
by Administrative Borrower giving Agent not
fewer than three Business Days'
written notice of such reduction, provided
that any such partial reduction shall
be in an aggregate amount, for all of the
Lenders, of not less than Five Million
Dollars ($5,000,000), increased by
increments of One Million Dollars
($1,000,000). Agent shall promptly notify
each Lender of the date of each such
reduction and such Lender's proportionate
share thereof. After each such
reduction, the facility fees payable
hereunder shall
33
<PAGE>
be calculated upon the Total Commitment
Amount as so reduced. If Borrowers
reduce in whole the Commitment, on the
effective date of such reduction (the
appropriate Borrowers having prepaid in
full the unpaid principal balance, if
any, of the Loans, together with all
interest and facility and other fees
accrued and unpaid, and provided that no
Letter of Credit Exposure or Swing Line
Exposure shall exist), all of the Notes, if
any, shall be delivered to Agent
marked "Canceled" and Agent shall redeliver
such Notes to Administrative
Borrower. Any partial reduction in the
Total Commitment Amount shall be
effective during the remainder of the
Commitment Period.
Section 2.9.
Computation of Interest and Fees. With the exception of Base
Rate Loans and, if applicable, Alternate
Currency Loans, interest on Loans, and
facility and other fees and charges
hereunder shall be computed on the basis of
a year having three hundred sixty (360)
days and calculated for the actual
number of days elapsed. With respect to
Base Rate Loans, interest shall be
computed on the basis of a year having
three hundred sixty-five (365) days or
three hundred sixty-six (366) days, as the
case may be, and calculated for the
actual number of days elapsed. With respect
to certain Alternate Currency Loans
(to the extent it is the market standard
for the applicable Alternate Currency),
interest shall be computed on the basis of
a year having three hundred
sixty-five (365) days or three hundred
sixty-six (366) days, as the case may be,
and calculated for the actual number of
days elapsed.
Section 2.10.
Mandatory Payments.
(a) If, at any
time, the Revolving Credit Exposure shall exceed the Total
Commitment Amount as then in effect, US
Borrowers (and the appropriate Foreign
Borrowers) shall, as promptly as
practicable, but in no event later than the
next Business Day, pay an aggregate
principal amount of the Revolving Loans
sufficient to bring the Revolving Credit
Exposure within the Total Commitment
Amount.
(b) If, at any
time, the Swing Line Exposure shall exceed the Swing Line
Commitment, US Borrowers shall, as promptly
as practicable, but in no event
later than the next Business Day, prepay an
aggregate principal amount of the
Swing Loans sufficient to bring the Swing
Line Exposure within the Swing Line
Commitment.
(c) Unless
otherwise designated by Borrowers, each prepayment pursuant to
this Section 2.10 shall be applied in the
following order (i) first, on a pro
rata basis for the Lenders, to outstanding
Base Rate Loans, and (ii) second, on
a pro rata basis for the Lenders, to
outstanding Eurodollar Loans (to
Eurodollars Loans with the earliest
Interest Adjustment Dates first), provided
that if the outstanding principal amount of
any Eurodollar Loan shall be reduced
to an amount less than the minimum amount
set forth in Section 2.5(d) hereof as
a result of such prepayment, then such
Eurodollar Loan shall be converted into a
Base Rate Loan on the date of such
prepayment. Any prepayment of a LIBOR Fixed
Rate Loan or Swing Loan pursuant to this
Section 2.10 shall be subject to the
prepayment penalties set forth in Article
III hereof.
Section 2.11.
Effectiveness of Guaranties. Concurrently with the execution
of this Agreement, Agilysys shall cause
each Domestic Subsidiary (other than an
Excluded Subsidiary) to execute and deliver
to Agent, for the benefit of the
Lenders, a Guaranty of Payment, to
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provide Organizational Documents and a
legal opinion with respect to such
Guaranty of Payment, and to provide such
other documents as Agent shall deem
reasonably necessary or appropriate (the
"Guaranty Documents"). Agent, on behalf
of the Lenders, acknowledges that the
Guaranty Documents will be held in escrow
by Agent and that any guaranty granted by
such Domestic Subsidiary to Agent in
the Guaranty Documents shall not be
effective until the earliest of (a) Agilysys
shall fail to comply with any financial
covenant set forth in Section 5.7 hereof
and the Required Lenders shall not have
waived such violation in writing or
amended such financial covenant to cure
such violation within thirty (30) days
after such failure to comply, (b) an Event
of Default shall occur under Section
7.1, 7.7, or 7.11 hereof, or (c) the
Guaranty Effectiveness Date, at which time
Agent may, in its sole and absolute
discretion, release the Guaranty Documents
from escrow to Agent, for the benefit of
the Lenders. Borrowers acknowledge and
agree that Agent, on behalf of the Lenders,
may release the Guaranty Documents
from escrow under any of the preceding
conditions by providing five days prior
notice to Administrative Borrower or such
Domestic Subsidiary (provided that no
notice or time period shall be required if
an Event of Default shall have
occurred under Section 7.11 hereof), and
such Guaranty Documents shall
thereafter be automatically effective,
without any further action by Agent, any
Lender or any Credit Party or other
Company. The provisions in this Section 2.11
shall control over the provisions of the
Guaranty Documents until such time as
the Guaranty Documents shall become
effective in accordance with this Section
2.11.
Section 2.12.
Liability of Borrowers.
(a) Joint and
Several Liability. Each US Borrower acknowledges and agrees
that Agent and the Lenders are entering
into this Agreement at the request of
each US Borrower and with the understanding
that each US Borrower is and shall
remain fully liable, jointly and severally,
for payment in full of the
Obligations. Each US Borrower agrees that
it is receiving or will receive a
direct pecuniary benefit for each Loan made
or Letter of Credit issued
hereunder.
(b) Appointment
of Administrative Borrower. Each Borrower hereby
irrevocably appoints Agilysys as the
borrowing agent and attorney-in-fact for
all Borrowers ("Administrative Borrower")
which appointment shall remain in full
force and effect unless and until Agent
shall have received prior written notice
signed by each Borrower that such
appointment has been revoked and that another
Borrower has been appointed Administrative
Borrower. Each Borrower hereby
irrevocably appoints and authorizes
Administrative Borrower to (i) provide Agent
with all notices with respect to Loans and
Letters of Credit obtained for the
benefit of any Borrower and all other
notices and instructions under this
Agreement, (ii) take such action as
Administrative Borrower deems appropriate on
its behalf to obtain Loans and Letters of
Credit, and (iii) exercise such other
powers as are reasonably incidental thereto
to carry out the purposes of this
Agreement.
(c) Maximum
Liability of Each Subsidiary Borrower. Anything in this
Agreement or any other Loan Document to the
contrary notwithstanding, in no
event shall the maximum liability of any
Subsidiary Borrower exceed the maximum
amount that (after giving effect to the
incurring of the obligations hereunder
and to any rights to contribution of such
Subsidiary Borrower from other
Affiliates of such Subsidiary Borrower)
would not render the rights to
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payment of Agent and the Lenders hereunder
void, voidable or avoidable under any
applicable fraudulent transfer law.
(d) Waivers of
Each Borrower. In the event that any obligation of any
Borrower under this Agreement is deemed to
be an agreement by such Borrower to
answer for the debt or default of another
Credit Party or as a hypothecation of
property as security therefore, each
Borrower represents and warrants that (i)
no representation has been made to such
Borrower as to the creditworthiness of
such other Credit Party, and (ii) such
Borrower has established adequate means
of obtaining from such other Credit Party
on a continuing basis, financial or
other information pertaining to such other
Credit Party's financial condition.
Each Borrower expressly waives, except as
expressly required under this
Agreement, diligence, demand, presentment,
protest and notice of every kind and
nature whatsoever, consents to the taking
by Agent and the Lenders of any
additional security, if any, of another
Credit Party for the obligations secured
hereby, or the alteration or release in any
manner of any security, if any, of
another Credit Party now or hereafter held
in connection with the Obligations,
and consents that Agent, the Lenders and
any other Credit Party may deal with
each other in connection with such
obligations or otherwise, or alter any
contracts now or hereafter existing between
them, in any manner whatsoever,
including without limitation the renewal,
extension, acceleration or changes in
time for payment of any such obligations or
in the terms or conditions of any
security
