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Exhibit
10.22
AMENDED AND RESTATED
REVOLVING LINE OF CREDIT LOAN AGREEMENT
This Amended and Restated
Revolving Line of Credit Loan Agreement is made as of
September 28, 2007, by and among Integral Systems, Inc., a
Maryland corporation (“Integral”), SAT Corporation, a
California corporation (“SAT”), Newpoint Technologies,
Inc., a Delaware corporation (“NTI”), Real Time Logic,
Inc., a Colorado corporation (“RTL”), and Lumistar,
Inc., a Maryland corporation (“Lumistar”, and together
with Integral, SAT, NTI and RTL and any other Person that becomes a
“Borrower” pursuant to the terms hereof, collectively
and individually, and jointly and severally, the
“Borrower”), having an address at 5000 Philadelphia
Way, Suite A, Lanham, Maryland 20706, and Bank of America, N.A.
(the “Lender”).
WITNESSETH:
WHEREAS , Integral,
SAT, NTI, RTL, Lumistar and Lender entered into that certain
Amended and Restated Revolving Line of Credit Loan Agreement and
Security Agreement dated as of April 30, 2007 (the
“Existing Loan Agreement”); and
WHEREAS , the parties
hereto desire to amend and restate the Existing Loan Agreement as
set forth herein;
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of
which is acknowledged by the parties hereto, Borrower and Lender
hereby agree as follows:
AGREEMENTS
ARTICLE 1. DEFINITIONS
.
1.1 Defined Terms .
Capitalized terms used herein and not otherwise defined herein
shall have the following meanings:
“ Advance
” means an advance of funds under the Revolving
Loan.
“ Affiliate
” means, with respect to any specified Person, any other
Person which, directly or indirectly, through one or more
intermediaries, controls or is controlled by, or is under common
control with, such specified Person. The term “control”
means the possession, directly or indirectly, of the power to
direct or cause the direction of management and policies of a
Person, whether through ownership of common stock, by contract, or
otherwise.
“ Agreement
” means this Amended and Restated Revolving Line of Credit
Loan Agreement, as the same may be amended, modified or
supplemented from time to time.
“ Borrowing Date
” means the date on which an Advance is made.
“ Business
Day(s) ” means any day that is not a Saturday, Sunday or
banking holiday in the Commonwealth of Virginia.
“ Capital Lease
” means any lease which has been or should be capitalized on
the books of the lessee in accordance with GAAP.
“ Cash Flow
” means, with respect to any period, the net income of
Integral and its Subsidiaries, determined on a consolidated basis
in accordance with GAAP, for such period (a) less income or
plus losses from discontinued operations and extraordinary items,
(b) plus depreciation and amortization, (c) plus rent
expense, (d) plus interest expense, (e) plus loss on
disposal of assets in the ordinary course of business,
(f) plus non-cash stock option compensation cost,
(g) minus dividends, withdrawals and other distributions (but
excluding the share repurchase of 1,850,000 shares of common stock
of Integral consummated in September 2007), and (h) minus any
unfinanced capital expenditures for such period.
“ Change in Law
” means (a) the adoption or effectiveness of any law,
rule or regulation after the date of this Agreement, (b) any
change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after or in
effect after the date of this Agreement, or (c) compliance by
Lender with any request, guideline or directive which has the force
of law, of any Governmental Authority made, issued or becoming
effective after the date of this Agreement.
“ Closing Date
” means the date hereof.
“ Code ”
means the Internal Revenue Code of the United States, as
amended.
“ Customer
” means any governmental entity (federal, state, county,
municipal or otherwise) or business entity (corporation,
association, partnership, limited liability company or partnership,
sole proprietorship or otherwise) or individual(s) to which
Borrower provides goods or services for compensation; however,
certain individual agencies of the United States Government and
certain branches of certain major corporations, as determined by
the Lender in its sole discretion, shall be treated as Customers in
their own right, separate and distinct from other such agencies or
branches and from the United States Government or the corporation
of which they are a part.
“ Debt ”
means (a) indebtedness or liability for borrowed money or for
the deferred purchase price of property or services;
(b) obligations as a lessee under a Capital Lease;
(c) obligations to reimburse the issuer of letters of credit
or acceptances; (d) all guaranties, endorsements (other than
for collection or deposit in the ordinary course of business), and
other contingent obligations to purchase, to provide funds for
payment, to supply funds to invest in any Person, or otherwise to
assure a creditor against loss; and (e) obligations secured by
any Encumbrance on property owned by Integral or any of its
Subsidiaries.
“ Domestic
Subsidiary ” shall mean any Subsidiary that is
incorporated or organized under the laws of any state in the United
States.
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“ EBITDA ”
means, with respect to any period, the net income of Integral and
its Subsidiaries, determined on a consolidated basis in accordance
with GAAP, (a) less income or plus losses for such period from
discontinued operations and extraordinary items, (b) plus
income taxes for such period, (c) plus interest expense for
such period, and (d) plus depreciation, depletion,
amortization and other non-cash charges for such period.
“ Encumbrance
” means any mortgage, pledge, deed of trust, assignment,
security interest, hypothecation, lien or charge of any kind
(including any conditional sale or other title retention agreement,
any financing lease having substantially the same economic effect
as any of the foregoing, and the filing of, or agreement to give,
any financing statement under the Uniform Commercial Code or
comparable law of any jurisdiction).
“ Environmental
Laws ” mean all laws relating to Hazardous Wastes, Toxic
Substances or materials that might be emitted, released or
discharged into the environment or other laws or regulations
protecting the environment.
“ ERISA ”
means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto, as interpreted by the
rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be
construed also to refer to any successor sections.
“ ERISA
Affiliate ” means an entity, whether or not incorporated,
which is under common control with Borrower or any of its
Subsidiaries within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes Borrower or any of
its Subsidiaries and which is treated as a single employer under
Sections 414(b), (c), (m), or (o) of the Code.
“ Event of
Default ” shall have the meaning set forth in
Section 9.1 of this Agreement.
“ Excluded Taxes
” means, with respect to Lender or any other recipient of any
payment to be made by or on account of any obligation of Borrower
under any Loan Document (a) income or franchise taxes imposed
on (or measured by) its net income by the United States of America,
or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the
case of Lender, in which its applicable lending office is located,
and (b) any branch profits taxes imposed by the United States
of America or any similar tax imposed by any other jurisdiction in
which the Borrower is located.
“ Fixed Charge
Coverage Ratio ” means, with respect to any period and
determined on a consolidated basis in accordance with GAAP with
respect to Integral and its Subsidiaries, the ratio of
(a) Cash Flow for such period, to (b) the sum of
(i) the current portion of long term debt of Integral or any
of its Subsidiaries for such period, (ii) the current portion
of Capital Leases of Integral or any
of its Subsidiaries for such period,
(iii) interest expense of Integral or any of its Subsidiaries
for such period, and (iv) rent expense of Integral or any of
its Subsidiaries for such period.
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“ Funded Debt
” means, with respect to any period and determined on a
consolidated basis in accordance with GAAP with respect to Integral
and its Subsidiaries, the sum of all obligations and indebtedness
for borrowed money and all interest bearing obligations (including
subordinated debt, if any, and current and long term indebtedness)
for such period.
“ GAAP ”
means generally accepted accounting principles consistently
applied.
“ Governance
Documents ” means the Articles or Certificate of
Incorporation, Articles of Organization, Bylaws, Operating
Agreement or other similar documents or agreements relating to
Borrower’s corporate governance.
“ Government
” means the government of the United States of America
including the departments and agencies of the United States, but
does not include the government of any state or the District of
Columbia or any departments or agencies of any state or of the
District of Columbia.
“ Government
Contracts ” means all contracts of the Borrower or any of
its Subsidiaries with the Government, including all renewals,
extensions, modifications, change orders and amendments thereof and
thereto.
“ Governmental
Authority ” means the government of the United States of
America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising
executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to
government.
“ Hazardous
Wastes ” mean all waste materials subject to regulation
under the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §§ 9601 et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.,
or applicable state law and any other applicable federal, state or
local laws and their regulations now in force or hereafter enacted
relating to hazardous wastes.
“ Indemnified
Taxes ” shall mean Taxes other than Excluded
Taxes.
“ Intellectual
Property ” shall mean all patents, licenses, trade names,
trademarks, copyrights, inventions, service marks, trademark
registrations, service mark registrations and copyright
registrations, whether domestic or foreign and applications for any
of the foregoing, and all proprietary technology, know-how, trade
secrets or other intellectual property rights owned or used by
Borrower or any of its Subsidiaries in the operation of their
respective businesses.
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“ Letter of
Credit ” shall mean a letter of credit issued by the
Lender for the account of Borrower under this Agreement.
“ Letter of Credit
Fee ” shall have the meaning set forth in
Section 2.1(f)(3) of this Agreement.
“ Loan ”
shall mean the Revolving Loan.
“ Loan Documents
” mean this Agreement, the Revolving Note, and any other
agreement, document or instrument to which the Borrower or any
Subsidiary of Borrower is a party that evidences, secures,
guarantees or provides for obligations to Lender with respect to
the Revolving Loan or is otherwise delivered to Lender in
connection with this Agreement or the transactions contemplated
hereby.
“ LOC
Obligations ” means, at any time, the sum of (i) the
maximum amount which is, or at any time thereafter may become,
available to be drawn under Letters of Credit then outstanding,
assuming compliance with all requirements for drawings referred to
in such Letters of Credit; plus (ii) the aggregate amount of
all drawings under Letters of Credit honored by Lender but not
reimbursed.
“ Material Adverse
Change ” means a material adverse change in the business,
assets, liabilities (actual or contingent), operations or condition
(financial or otherwise) of Integral and its Subsidiaries taken as
a whole.
“ Material Adverse
Effect ” means a material adverse effect on the business,
operations, property or condition (financial or otherwise) of
Integral and its Subsidiaries taken as a whole.
“ Maturity Date
” shall have the meaning set forth in the Revolving
Note.
“ Maximum Revolving
Commitment Amount ” means Twenty Five Million and No/100
Dollars ($25,000,000.00), or such lesser amount that the Borrower
may request as hereinafter provided.
“ Multiemployer
Plan ” means a Plan which is a multiemployer plan as
defined in Sections 3(37) or 4001(a)(3) of ERISA.
“ Multiple Employer
Plan ” means a Plan to which Integral or any of its
Subsidiaries or any ERISA Affiliate and at least one employer other
than Integral or any of its Subsidiaries or any ERISA Affiliate are
contributing sponsors.
“ Other Taxes
” means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar
levies arising from any payment made under this Agreement or any
other Loan Document or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan
Document.
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“ Operating
Account ” means a demand deposit account to be
established by Integral with the Lender for Integral’s use in
connection with its business operations and with the Revolving
Loan.
“ PBGC ”
means the Pension Benefit Guaranty Corporation established pursuant
to Subtitle A of Title IV of ERISA and any successor
thereto.
“ Permitted
Indebtedness ” shall have the meaning set forth in
Section 7.1 of this Agreement.
“ Permitted
Liens ” shall have the meaning set forth in
Section 7.2 of this Agreement.
“ Person ”
means any individual, partnership, association, trust, corporation,
limited liability company or partnership, or other
entity.
“ Plan ”
means any employee benefit plan (as defined in Section 3(3) of
ERISA) which is covered by ERISA and with respect to which Integral
or any of its Subsidiaries or any ERISA Affiliate is (or, if such
plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an “employer” within the meaning
of Section 3(5) of ERISA.
“ Projections
” shall have the meaning ascribed thereto in
Section 6.11(c) hereto.
“ Purchase Money
Obligations ” means, with respect to any Person, any
obligation of such Person (other than Capital Lease obligations of
such Person) incurred or assumed in the ordinary course of business
of such Person, consistent with past practices, in connection with
the purchase of property or assets to be used in the business of
such Person.
“ Reportable
Event ” means a “reportable event” as defined
in Section 4043 of ERISA with respect to which the notice
requirements to the PBGC have not been waived.
“ Revolving Loan
” means the revolving loan facility made available by Lender
to Borrower pursuant to this Agreement in the maximum principal
amount of Twenty Five Million and No/100 Dollars ($25,000,000.00)
and evidenced by the Revolving Note.
“ Revolving Note
” means that certain Amended and Restated Revolving Note,
dated as of the date hereof, in the original principal amount of
Twenty Five Million and No/100 Dollars ($25,000,000.00), executed
by the Borrower, jointly and severally, and payable to the order of
the Lender, and evidencing Borrower’s obligation to repay the
Revolving Loan, as such Amended and Restated Revolving Note may be
amended from time to time.
“ SEC ”
means the Securities and Exchange Commission.
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“ Single Employer
Plan ” means any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
“ Subsidiary
” means any corporation or other entity of which at least
fifty percent (50%) of the voting stock or other ownership
interest is owned by Borrower directly or indirectly through one or
more Subsidiaries. If Borrower has no Subsidiaries, the provisions
of this Agreement relating to the Subsidiaries of Borrower shall be
disregarded, without affecting the applicability of such provisions
to Borrower alone.
“ Taxes ”
means any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed by any Governmental
Authority.
“ Termination
Event ” means (i) with respect to any Plan, the
occurrence of a Reportable Event or the substantial cessation of
operations (within the meaning of Section 4062(e) of ERISA);
(ii) the withdrawal of Integral or any of its Subsidiaries or
any ERISA Affiliate from a Multiple Employer Plan during a plan
year in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination of
a Multiple Employer Plan; (iii) the distribution of a notice
of intent to terminate or the actual termination of a Plan pursuant
to Section 4041(a)(2) or 4041A of ERISA; (iv) the
institution of proceedings to terminate or the actual termination
of a Plan by the PBGC under Section 4042 of ERISA;
(v) any event or condition which might constitute grounds
under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan; or (vi) the
complete or partial withdrawal of Integral or any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer
Plan.
“ Toxic
Substances ” means any materials which have been shown to
have significant adverse effects on human health or which are
subject to regulation under the Toxic Substances Control Act, 15
U.S.C. §§ 2601 et seq., applicable state law, or any
other applicable federal, state or local laws now in force or
hereafter enacted relating to toxic substances. “Toxic
Substances” includes, but is not limited to, asbestos,
polychlorinated biphenyls (PCBs), petroleum products, and
lead-based paints.
“ Unused Commitment
Fee ” shall have the meaning set forth in
Section 2.1(f)(2) of this Agreement.
“ Unused Commitment
Fee Interest Rate ” shall have the meaning set forth in
Section 2.1(f)(2) of this Agreement.
1.2 Accounting Terms .
Accounting terms used in this Agreement but not defined herein
shall have the meanings given to them under GAAP.
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1.3 Use of Defined
Terms . All terms defined in this Agreement shall have the same
defined meanings when used in any certificate, report or other
document made or delivered in connection with this Agreement,
unless otherwise set forth therein.
ARTICLE 2. THE LOAN
.
2.1 Revolving Line of
Credit . The Lender agrees to extend the Revolving Loan to
Borrower, jointly and severally, subject to the terms and
conditions of this Agreement and the other Loan Documents. To, but
not including, the Maturity Date, Borrower may borrow, repay and
reborrow Advances in accordance with this Agreement and the other
Loan Documents.
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(a) |
Amount of Credit . If Borrower requests an Advance,
Lender shall, subject to the terms and conditions of this Agreement
and the other Loan Documents, make such Advance provided that
immediately after giving effect to such Advance, the sum of
(i) the LOC Obligations, plus (ii) the outstanding
principal amount of the Advances, shall not exceed the Maximum
Revolving Commitment Amount. |
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(b) |
Procedure for Advances . Integral, on behalf of the
Borrower, may request Advances by telephone through its designated
employee or employees as hereinafter provided. Each request for an
Advance shall be in an amount at least equal to One Hundred
Thousand and No/100 Dollars ($100,000.00) or One Thousand Dollar
($1,000.00) increments in excess thereof and received by Lender not
later than 1:00 p.m. (Eastern Time) on the date the Advance is to
be made and must specify the amount of the Advance. Lender shall
deposit the Advance into the Operating Account if Borrower is
entitled to the Advance subject to the terms and conditions of this
Agreement and the other Loan Documents. |
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(c) |
Repayment of Revolving Loan . Borrower, jointly and
severally, promise to repay the Revolving Loan, with interest, at
the time and in the manner and in accordance with the terms and
provisions of the Revolving Note. Integral authorizes Lender to
effect payment of sums due under the Revolving Note by means of
debiting the Operating Account. This authorization shall not affect
the obligation of Borrower to pay such sums when due, without
notice, if there are insufficient funds in the Operating Account to
make such payment in full on the due date thereof, or if Lender
fails to debit the Operating Account. |
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(d) |
Letter of Credit Subfacility . Lender shall issue
Letters of Credit for the account of Borrower from time to time
upon request from the Closing Date to, but not including, the
Maturity Date, subject to the following terms and
conditions: |
(1) the aggregate amount of
LOC Obligations shall at no time exceed Ten Million and 00/100
Dollars ($10,000,000.00);
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(2) any request for a Letter
of Credit to be issued must be delivered and received by Lender not
later than five (5) Business Days prior to the date that
Borrower wishes to have the Letter of Credit issued;
(3) no Letter of Credit shall
have an original expiration date more than one year from the date
of issuance or extending beyond the Maturity Date. If Borrower so
requests in any request for a Letter of Credit, the Lender may, in
its sole and absolute discretion, agree to issue a Letter of Credit
that has automatic extension provisions (each, an
“Auto-Extension Letter of Credit”); provided
that any such Auto-Extension Letter of Credit must permit
the Lender to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof
not later than one Business Day (the “Non-Extension Notice
Date”) in each such twelve-month period to be agreed upon at
the time such Letter of Credit is issued; provided ,
however , that the Lender shall not permit any such
extension if the Lender has determined that it would have no
obligation at such time to issue such Letter of Credit in its
revised form (as extended) under the terms hereof;
(4) the form of each Letter
of Credit must be satisfactory to the Lender, in its sole and
absolute discretion. At Lender’s option, Letters of Credit
shall be subject to The Uniform Customs and Practice for
Documentary Credits, as published as of the date of issue by the
International Chamber of Commerce (Publication No. 500 or the
most recent publication, the “UCP”);
(5) issuance of the Letter of
Credit shall not cause the sum of (i) the LOC Obligations,
plus (ii) the outstanding principal amount of the Advances to
exceed the Maximum Revolving Commitment Amount;
(6) Lender shall not be
required to issue any Letter of Credit if any circumstance exists
that would entitle Lender not to honor a request for an Advance
under the Revolving Loan;
(7) Lender shall promptly
notify Integral of any drawing under any Letter of Credit, and the
Borrower shall immediately reimburse Lender for the amount of the
drawing. The Borrower’s obligation to reimburse the Lender
for any drawing under a Letter of Credit shall be absolute and
unconditional, irrespective of any rights of set-off, counterclaim
or defense to payment Borrower may claim or have against the
Lender, the beneficiary of the Letter of Credit or any other
Person;
(8) unless the Borrower makes
reimbursement from another source on the day of the drawing under
any Letter of Credit, the Borrower shall be deemed to have
requested an Advance under the Revolving Loan in the amount of the
drawing, and
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(i) Lender, subject to the
terms and conditions of this Agreement and the other Loan
Documents, shall make such an Advance and apply the proceeds of the
Advance to satisfy the Borrower’s obligation to reimburse
Lender for the amount drawn on the Letter of Credit; and
(ii) such Advance shall be repayable, with interest, in
accordance with the terms and provisions of the Revolving Note;
and
(9) no Event of Default has
occurred and remains uncured, and no event has occurred or
circumstance exists which, with the passage of time or the giving
of notice or both, would constitute an Event of Default.
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(e) |
Use of Revolving Loan Proceeds . The proceeds of the
Revolving Loan shall be used for working capital purposes, for the
issuance of standby letters of credit, and for general corporate
purposes and for acquisitions. None of such proceeds will be used,
directly or indirectly, for the purpose, whether immediate,
incidental or ultimate, of buying or carrying any “margin
stock” within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System, as amended. |
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(f) |
Revolving Loan Fees . In addition to interest payable
under the Revolving Note, Borrower promises to pay to Lender the
following fees in the amounts and on the dates set forth
below: |
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(1) |
Borrower shall pay to the Lender on the Closing Date, a
commitment fee in the amount of Thirty Seven Thousand Five Hundred
and No/100 Dollars ($37,500.00). |
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(2) |
Borrower shall pay to the Lender an unused commitment fee (the
“Unused Commitment Fee”) accruing at the applicable per
annum rate set forth below calculated on the basis of a 360 day
year (the “Unused Commitment Fee Interest Rate”) on the
average daily unused portion of the Maximum Revolving Commitment
Amount: |
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Ratio of Funded Debt to
EBITDA:
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Unused Commitment
Fee Interest Rate: |
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Less than or equal to 1.5 :
1.0
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0.20 |
% |
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Greater than 1.5 : 1.0
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0.25 |
% |
The Unused Commitment Fee
shall be due and payable quarterly in arrears commencing on
January 1, 2008 and continuing thereafter on the first day of
each April, July, October and January thereafter, with a final
payment due and payable on the Maturity Date in an amount equal to
the Unused Commitment Fee as of such date.
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(3) |
Borrower shall pay to the Lender, with respect to each Letter
of Credit outstanding hereunder, a quarterly letter of credit fee
accruing at the applicable per annum rate set forth below
calculated on the basis of a 360 day year (the “Letter of
Credit Fee”) on the average daily undrawn face amount of such
Letter of Credit: |
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Ratio of Funded Debt to
EBITDA:
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Letter of Credit Fee: |
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Less than or equal to 1.0 :
1.0
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1.25 |
% |
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Greater than 1.0 : 1.0 but less than or
equal to 1.5 : 1.0
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1.50 |
% |
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Greater than 1.5 : 1.0 but less than or
equal to 2.0 : 1.0
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1.75 |
% |
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Greater than 2.0 : 1.0
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2.25 |
% |
The Letter of Credit Fee
shall be due and payable quarterly in arrears commencing on
January 1, 2008 and continuing thereafter on the first day of
each April, July, October and January thereafter, with a final
payment due and payable on the Maturity Date in an amount equal to
the Letter of Credit Fee as of such date.
2.2 Reduction of Maximum
Revolving Commitment Amount . No more frequently than once in
any three (3) consecutive calendar months, upon at least five
(5) Business Days’ prior written notice to Lender,
Borrower may reduce the Maximum Revolving Commitment Amount;
provided , however , that (a) each such
notice shall be irrevocable, (b) each such reduction shall be
in an amount at least equal to Five Million and No/100 Dollars
($5,000,000.00) or integral multiples thereof, and
(c) immediately after giving effect to each such reduction,
the sum of (i) the LOC Obligations, plus (ii) the
outstanding principal amount of the Advances, shall not exceed the
Maximum Revolving Commitment Amount (after giving effect to such
reduction); and provided further that after giving to
any such reduction in the Maximum Revolving Commitment Amount,
Borrower shall have no right thereafter to increase the Maximum
Revolving Commitment Amount.
2.3 Mandatory Payment
. If at any time the sum of (i) the LOC Obligations, plus
(ii) the outstanding principal amount of the Advances, exceeds
the Maximum Revolving Commitment Amount in effect at such time,
Borrower shall, within one (1) Business Day of Lender’s
demand therefor, remit to Lender in immediately available funds an
amount at least equal to such excess together with accrued and
unpaid interest thereon to the date of such payment.
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2.4 Increased Costs
.
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(a) |
If any Change in Law shall: |
(i) impose, modify or deem
applicable any reserve, special deposit or similar requirement
against assets or deposits with or for the account of, or credit
extended by, any Lender; or
(ii) impose on Lender or the
London interbank market any other condition affecting this
Agreement or Advances made by Lender;
and the result of any of the foregoing
shall be to increase the cost to Lender of making or maintaining
any Advance (or of maintaining its obligation to make an Advance)
or to reduce the amount of any sum received or receivable by such
Lender hereunder (whether of principal, interest or otherwise with
respect to an Advance), then the Borrower shall pay to Lender, such
additional amount or amounts as will compensate Lender, for such
additional costs actually incurred or reduction actually
suffered.
(b) If Lender determines that
any Change in Law regarding capital requirements has or would have
the effect of reducing the rate of return on Lender’s capital
or on the capital of Lender’s holding company, if any, as a
consequence of this Agreement or the Advances made by Lender, to a
level below that which Lender or Lender’s holding company
could have achieved but for such Change in Law (taking into
consideration Lender’s policies and the policies of
Lender’s holding company with respect to capital adequacy),
then from time to time the Borrower shall pay to Lender such
additional amount or amounts as will compensate Lender or
Lender’s holding company for any such reduction actually
suffered.
(c) A certificate of Lender
setting forth in reasonable detail the calculation of the amount or
amounts necessary to compensate such Lender or its holding company,
as specified in paragraph (a) or (b) of this Section, and
accompanied by reasonably available documentation in support of
such calculation, shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay Lender, as
the case may be, the amount shown as due on any such certificate
within ten (10) Business Days after receipt
thereof.
(d) Failure or delay on the
part of Lender to demand compensation pursuant to this Section
shall not constitute a waiver of Lender’s right to demand
such compensation; provided that notwithstanding
anything to the contrary in this Section, Borrower shall not be
required to compensate Lender pursuant to this Section for any
amounts incurred more than six months prior to the date that Lender
notifies Borrower of Lender’s intention to claim compensation
therefor; and provided further that, if the
circumstances giving rise to such claim have a retroactive effect,
then such six-month period shall be extended to include the period
of such retroactive effect.
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2.5 Taxes .
(a) Any and all payments by
or on account of any obligation of the Borrower under any Loan
Document shall be made free and clear of and without deduction or
withholding for or on account of any Indemnified Taxes or Other
Taxes; provided that if the Borrowers shall be required to deduct
any Indemnified Taxes or Other Taxes from such payments, then
(i) the sum payable shall be increased as necessary so that
after making all required deductions or withholdings, as applicable
(including deductions or withholdings applicable to additional sums
payable under this Section) the Administrative Agent and each
Lender receives an amount equal to the sum it would have received
had no such deductions or withholdings, as applicable, been made,
(ii) the Borrowers shall make such deductions or withholdings,
as applicable, and (iii) the Borrowers shall pay the full
amount deducted (or withheld) to the relevant Governmental
Authority in accordance with applicable law.
(b) In addition, the Borrower
shall pay any Other Taxes to the relevant Governmental Authority in
accordance with applicable law.
(c) The Borrower shall
indemnify the Lender within ten (10) Business Days after
receipt of written demand therefor (which demand shall be
accompanied by any reasonably available documentation to support
the calculation any Indemnified Taxes), for the full amount of any
Indemnified Taxes or Other Taxes paid by the Lender on or with
respect to any payment by or on account of any obligation of the
Borrower under this Agreement or any other Loan Document (including
Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or
with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the
relevant Governmental Authority. A certificate as to the amount of
such payment or liability delivered to the Borrower by Lender shall
be conclusive absent manifest error
(d) As soon as reasonably
practicable after any payment of Indemnified Taxes or Other Taxes
by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Lender the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such
payment reasonably satisfactory to the Lender.
(e) If Lender determines, in
its sole discretion, that it has received a refund of any
Indemnified Taxes or Other Taxes as to which it has been
indemnified by Borrower or with respect to which Borrower has paid
additional amounts pursuant to this Section 2.5 ,
Lender shall pay over such refund to Borrower (but only to the
extent of indemnity payments made, or additional amounts paid, by
the Borrower under this Section 2.5 with respect to the
Indemnified Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of Lender and without interest (other
than any interest paid by the relevant Governmental Authority
with
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respect to such refund); provided
that Borrower, upon the request of Lender, agrees to repay
the amount paid over to Borrower (plus any penalties, interest or
other charges imposed by the relevant Governmental Authority) to
Lender in the event Lender is required to repay such refund to such
Governmental Authority. This clause (e) shall not be construed
to require Lender to make available its tax returns (or any other
information relating to its taxes which it deems confidential) to
Borrower or any other Person.
ARTICLE 3. CONDITIONS
PRECEDENT TO LOAN .
3.1 Conditions Precedent
to Initial Advance . The obligation of the Lender to make the
initial Advance under the Revolving Loan or to issue a Letter of
Credit is subject to the satisfaction (determined by Lender in its
sole and absolute discretion) of the following conditions on or
before the Closing Date:
(a) Representations and
Warranties; Compliance . All representations and warranties
made by Borrower in or in connection with this Agreement or any of
the other Loan Documents or otherwise made in writing in connection
with this Agreement shall be true and correct on the Closing Date,
and Borrower shall have performed all of the promises or
undertakings under this Agreement and the other Loan Documents and
satisfied all of the conditions of this Agreement and the other
Loan Documents that Borrower is required to perform or to satisfy
as of the Closing Date.
(b) Documents Concerning
the Borrower . Borrower shall have delivered to the Lender
copies of all documents with respect to Borrower reasonably
requested by the Lender, including a complete, correct and current
copy of Borrower’s Governance Documents certified by the
Secretary of State (or other appropriate entity) of
Borrower’s state of organization; a complete, correct and
current copy of its Bylaws or Operating Agreement, as the case may
be, certified by Borrower’s corporate secretary, managers or
members, as the case may be; a complete, correct and current copy
of all resolutions of Borrower’s Board of Directors or
managers and members, as the case may be, authorizing the
execution, delivery and performance by Borrower of this Agreement
and of the other Loan Documents, certified by Borrower’s
corporate secretary, managers or members, as the case may be; and
appropriate certificates of incumbency for those officers, managers
or members, as the case may be, of Borrower executing this
Agreement or any of the other Loan Documents, certified by
Borrower’s corporate secretary, managers or members, as the
case may be. In addition, the following documents and materials
shall have been delivered to the Lender, and shall be satisfactory
in form and substance to the Lender, in its sole and absolute
discretion:
(1) Financial projections of
income statement, prepared in accordance with Borrower’s
standard procedures and on a consolidated basis for Integral and
its Subsidiaries, for each of the fiscal years ending
September 30, 2007, September 30, 2008 and
September 30, 2009; and
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(2) Such additional
information, instruments, opinions, documents, certificates and
reports relating to Borrower as the Lender may deem necessary in
Lender’s sole and absolute discretion.
(c) Executed Loan
Documents . Borrower shall deliver to the Lender, fully
executed: this Agreement and the Revolving Note.
(d) Operating Account
. Integral shall have established the Operating Account with the
Lender.
(e) Material Adverse
Change . No Material Adverse Change has occurred since
June 30, 2007 (it being agreed that the share repurchase of
1,850,000 shares of common stock of Integral consummated in
September 2007 shall not be deemed to be a Material Adverse
Change).
(f) RT Logic .
Evidence satisfactory to Lender, in its sole and absolute
discretion, that RT Logic Tract TT2, a Colorado limited liability
company and a wholly owned Subsidiary of RTL, has been
dissolved.
(g) No Default . No
Event of Default shall have occurred and be continuing, and no
event shall have occurred or circumstance exist which, with the
passage of time or the giving of notice or both, would constitute
an Event of Default.
(h) Commitment Fee .
Borrower shall have paid the commitment fee required pursuant to
Section 2.1(f)(1) of this Agreement.
(i) Opinions .
Opinions of Gibson, Dunn & Crutcher LLP and Ballard Spahr
Andrews & Ingersoll, LLP, outside counsel to Borrower,
satisfactory in form and substance to the Lender, in its sole and
absolute discretion.
3.2 Future Advances .
The obligation of the Lender to make any Advance under the
Revolving Loan or to issue a Letter of Credit subsequent to the
Closing Date is further conditional on:
(a) the representations and
warranties made by Borrower in this Agreement or any of the other
Loan Documents or otherwise made in writing in connection with this
Agreement that are expressly qualified by a
“materiality” standard shall be true and correct in all
respects as of the date of the submitted request for an Advance or
a Letter of Credit and as of the date on which such Advance is made
or such Letter of Credit is issued, and all of the representations
and warranties of the Borrower made by Borrower in this Agreement
or any of the other Loan Documents or otherwise made in writing in
connection with this Agreement and not expressly qualified by a
“materiality” standard shall be true and correct in all
material respects on and as of the date of the submitted request
for an Advance or a Letter of Credit and as of the date on which
such Advance is made or such Letter of Credit is issued;
provided that any such representations and warranties
that by their express terms are made as of a specific date shall be
true and correct as of such specific date only; and
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(b) no Event of Default shall
have occurred and be continuing, and no event shall have occurred
or circumstance exist which, with the passage of time or the giving
of notice or both, would constitute an Event of Default.
3.3 Lender’s Right
To Rely On Communications . Borrower shall provide the Lender
with written notice designating employees or agents of Borrower who
are authorized to communicate with Lender on Borrower’s
behalf regarding Advances and other matters pertaining to this
Agreement and the other Loan Documents. Until further notice,
Borrower designates the Chief Financial Officer, Chief Executive
Officer, Treasurer and Comptroller of Integral, or any one of them,
as individuals authorized to communicate with the Lender. Borrower
authorizes the Lender to accept, rely upon, act upon and comply
with, any verbal or written instructions, requests, confirmations
and orders of any employee or agent so designated by Borrower.
Borrower acknowledges that the transmission between Borrower and
the Lender of any such instructions, requests, confirmations and
orders involves the possibility of errors, omissions, mistakes and
discrepancies and agrees to adopt such internal measures and
operational procedures as Borrower deems necessary to protect its
interests. Borrower hereby assumes all risk of loss arising out of:
(i) the Lender’s acceptance, reliance on, compliance
with or observation of any such instructions, requests,
confirmations or orders; and (ii) any such errors, omissions,
mistakes and discrepancies, except those caused by the
Lender’s gross negligence or willful misconduct. Borrower,
jointly and severally, agree to indemnify Lender and to hold Lender
harmless for and from all claims, demands, suits, actions,
judgments, decrees, losses or damages, including reasonable
attorneys’ fees, costs and expenses, that Lender may incur as
a result of the foregoing events or occurrences for which Borrower
has assumed the risk of loss. The foregoing indemnification
obligations shall survive the payment of the Revolving Loan and the
termination of this Agreement but shall not extend to any suit,
proceeding or action arising out of the Lender’s gross
negligence or willful misconduct.
ARTICLE 4.
Intentionally Omitted
ARTICLE 5.
BORROWER’S REPRESENTATIONS AND WARRANTIES .
To induce the Lender to enter
into this Agreement and to extend the Revolving Loan to Borrower
and to issue Letters of Credit, Borrower, jointly and severally,
makes the following representations and warranties to the
Lender:
5.1 Corporate Authority;
Subsidiaries . Borrower and each of its Subsidiaries
(i) is a corporation or limited liability company duly
organized, validly existing, and in good standing under the laws of
its State of organization, (ii) is qualified to do business as
a foreign corporation and is in good standing in all jurisdictions
where its activities or ownership of property require such
qualification,
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except for any such failure to be so
qualified which may reasonably be expected to result in a Material
Adverse Change, and (iii) has the full and unrestricted power
and authority, corporate and otherwise, to own, operate and lease
its properties, to carry on its business as currently conducted, to
execute and deliver and perform the Loan Documents to which it is a
party, to incur the obligations provided for herein and therein,
and to perform the transactions contemplated hereby and thereby,
all of which have been duly and validly authorized by all proper
and necessary action (all of which actions are in full force and
effect). Except as set forth in Schedule 4.1 hereof,
Borrower has no Subsidiaries.
5.2 Approvals .
Borrower has provided Lender with a true and accurate certificate
of the resolutions adopted by its governing body authorizing the
loan transactions contemplated by this Agreement. No further
approval, consent, notice to or other action by any other Person
(including, without limitation, the stockholders or other equity
holders of Borrower or any of its Subsidiaries or any Governmental
Authority) is or will be necessary to permit the valid execution,
delivery or performance by Borrower of this Agreement or any of the
other Loan Documents.
5.3 Binding Effect, No
Violations . Each of the Loan Documents, upon its execution and
delivery, will constitute a legal, valid and binding obligation of
Borrower and its Subsidiaries party thereto, enforceable against
Borrower and its Subsidiaries in accordance with its terms, except
as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting
creditors’ rights generally and by general principles of
equity (regardless of whether enforcement is sought in a proceeding
in equity or at law). The execution, delivery and performance of
the Loan Documents will not (i) violate, conflict with or
constitute a default (with due notice, lapse of time or both) under
any law, regulation, order or any other requirement of any court,
tribunal, arbitrator or other Governmental Authority, any terms of
the Governance Documents of Borrower or any of its Subsidiaries, or
any contract, agreement or other arrangement binding upon or
affecting Borrower or any of its Subsidiaries or any of their
respective properties, or (ii) result in the creation,
imposition or acceleration of any indebtedness or any Encumbrance
of any nature upon, or with respect to, Borrower or any of its
Subsidiaries or any of their respective properties.
5.4 Litigation .
Without limiting Borrower’s representation and warranty in
Section 5.21 hereof, except as previously disclosed to
the Lender in writing or in filings made by Borrower with the SEC,
there is no judgment, order, claim, litigation, proceeding or
investigation pending or, to the knowledge of Borrower, threatened
against or affecting Borrower or any of its Subsidiaries, their
respective properties or business or this Agreement or any of the
other Loan Documents or any of the transactions contemplated hereby
or thereby before or by any court, tribunal, arbitrator or other
Governmental Authority involving an aggregate amount in dispute in
excess of Two Million Dollars ($2,000,000.00).
5.5 Title to and Condition
of Assets . Borrower and each of its Subsidiaries has good,
valid and marketable title to all of its properties and assets
(whether real or personal) free and clear of all Encumbrances other
than Permitted Liens. All personal property of Borrower or any of
its Subsidiaries which is necessary for Borrower’s or its
Subsidiary’s operations is in good operating condition and
repair, normal wear and tear excepted, and is suitable and adequate
for the uses for which it is being used.
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5.6 Loan Application .
The statements (other than projections) made and the documents
delivered by Borrower or any of its Subsidiaries to the Lender
(including, without limitation, any financial statements) in
connection with its application for the Revolving Loan, when taken
as a whole, are true, correct and complete in all material
respects, omit no material facts, are not misleading, and present
fairly the condition (financial or otherwise) of Borrower and its
Subsidiaries. The projections contained in the materials referenced
above are based upon reasonable estimates and assumptions, all of
which are reasonable in light of the conditions which existed at
the time the projections were made, and reflect the good faith
estimate of the Borrower of the results of operations and other
information projected therein, provided that no
representation is made that the assumptions will prove to be
correct.
5.7 No Change . No
Material Adverse Change has occurred since June 30,
2007.
5.8 Taxes . Borrower
and each of its Subsidiaries has timely filed all tax returns and
other material reports required by any Governmental Authority to be
filed by Borrower and its Subsidiaries, and such returns and
reports are, after due inquiry, reasonably believed to be true and
correct at the time of filing thereof. Borrower and each of its
Subsidiaries has paid all taxes, assessments and other government
charges imposed upon it or its income, profits or properties, or
upon any part thereof, other than those presently payable without
penalty or interest (or as are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves
are being maintained), and Borrower and each of its Subsidiaries
has timely filed all claims for refunds to which it is entitled.
The amounts reserved as a liability for income and other taxes
payable in the most recent financial statements of Borrower and its
Subsidiaries provided to the Lender are sufficient for the payment
of all unpaid federal, state, county and local income, excise,
property and other taxes, whether or not disputed, of Borrower and
its Subsidiaries accrued for or applicable to the period and on the
dates of such financial statements and all years and periods prior
thereto, and for which Borrower or any of its Subsidiaries may be
liable in its own right or as a transferee of the assets of, or as
successor to, any other Person.
5.9 No Event of
Default . As of the date on which this representation and
warranty is made (or remade), no Event of Default, and no event
which with notice, lapse of time or both would constitute an Event
of Default, has occurred and is continuing.
5.10 Compliance with Laws,
Governance Documents and Agreements . Without limiting the
provisions of Section 5.3 , Borrower and each of its
Subsidiaries has complied and is in full compliance with
(a) each agreement binding upon or affecting Borrower, its
Subsidiaries or any of their respective properties except to the
extent the failure to comply with such agreements would not have a
Material Adverse Effect, (b) all applicable laws, ordinances,
rules, regulations, judgments, orders, writs, injunctions, decrees,
rules,
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awards and other requirements of each
Governmental Authority, court, tribunal, commission, board, bureau,
arbitration panel or arbitrator except to the extent the
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