\n 10.5 Borrower Indemnification ……………………………………. 77
\n 10.6 Marshalling; Payments Set Aside ……………………………… 77
\n 10.7 Successors and Assigns ……………………………………… 78
\n 10.8 Assignments, Participations, Etc. ……………………………. 78
\n 10.9 Confidentiality ……………………………………………. 80
\n 10.10 Set-off …………………………………………………… 81
\n 10.11 Automatic Debits of Fees ……………………………………. 81
\n 10.12 Notification of Addresses, Lending Offices, Etc. ………………. 82
\n 10.13 Counterparts ………………………………………………. 82
\n 10.14 Severability ………………………………………………. 82
\n 10.15 No Third Parties Benefited ………………………………….. 82
\n 10.16 Governing Law and Jurisdiction ………………………………. 82
\n 10.17 Waiver of Jury Trial ……………………………………….. 83
\n 10.18 Entire Agreement …………………………………………… 83
\n<\/c><\/s><\/caption>\n<\/table>\n 6<\/p>\n
SCHEDULES<\/p>\n
Schedule 2.1 Commitments and Pro Rata Shares
\nSchedule 5.5 Litigation
\nSchedule 5.7 ERISA
\nSchedule 5.11 Permitted Liabilities
\nSchedule 5.12 Environmental Matters
\nSchedule 5.16 Subsidiaries and Minority Interests
\nSchedule 5.17 Insurance Matters
\nSchedule 6.14 Financing Statement Filing Schedule
\nSchedule 7.1 Permitted Liens
\nSchedule 7.5 Permitted Indebtedness
\nSchedule 7.8 Contingent Obligations
\nSchedule 10.2 LIBOR and Domestic Lending Offices; Addresses for Notices<\/p>\n
EXHIBITS<\/p>\n
Exhibit A Form of Notice of Conversion\/Continuation
\nExhibit B Form of Compliance Certificate
\nExhibit C Form of Legal Opinion of Borrower’s Counsel
\nExhibit D Form of Assignment and Acceptance
\nExhibit E Form of Promissory Note
\nExhibit F Form of Warrant
\nExhibit G Form of Consent of Lessors\/Warehousemen<\/p>\n
7
\n CREDIT AGREEMENT<\/p>\n
This CREDIT AGREEMENT is entered into as of December 23, 1997, among
\nAmazon.com, Inc., a Delaware corporation (the “Borrower”), the several financial
\ninstitutions from time to time party to this Agreement (collectively, the
\n“Lenders”; individually, a “Lender”), and Deutsche Bank AG, New York Branch, as
\nadministrative agent for the Lenders.<\/p>\n
WHEREAS, the Lenders have agreed to make available to the Borrower a
\nsecured term loan facility upon the terms and conditions set forth in this
\nAgreement;<\/p>\n
NOW, THEREFORE, in consideration of the mutual agreements, provisions
\nand covenants contained herein, the parties agree as follows:<\/p>\n
ARTICLE I
\n DEFINITIONS<\/p>\n
1.1 CERTAIN DEFINED TERMS<\/p>\n
The following terms have the following meanings:<\/p>\n
“Acquisition” means any transaction or series of related transactions
\nfor the purpose of or resulting, directly or indirectly, in (a) the acquisition
\nof all or substantially all of the assets of a Person, or of any business or
\ndivision of a Person, (b) the formation or acquisition of all or any portion of
\nthe capital stock, partnership interests, membership interests or equity of any
\nPerson, or otherwise, resulting in a Joint Venture or causing any Person to
\nbecome a Subsidiary, or (c) a merger or consolidation or any other combination
\nwith another Person (other than a Person that is a Subsidiary) provided that the
\nBorrower or the Subsidiary is the surviving entity.<\/p>\n
“Affiliate” means, as to any Person, any other Person which, directly or
\nindirectly, is in control of, is controlled by, or is under common control with,
\nsuch Person. A Person shall be deemed to control another Person if the
\ncontrolling Person possesses, directly or indirectly, the power to direct or
\ncause the direction of the management and policies of the other Person, whether
\nthrough the ownership of voting securities, membership interests, by contract,
\nor otherwise.<\/p>\n
“Agent” means Deutsche Bank in its capacity as administrative agent for
\nthe Lenders hereunder, and any successor administrative agent arising under
\nSection 9.9.<\/p>\n
“Agent-Related Persons” means Deutsche Bank and any successor agent
\narising under Section 9.9, together with their respective Affiliates (including,
\nin the <\/p>\n
8
\ncase of Deutsche Bank, the Arranger), and the officers, directors, employees,
\nagents and attorneys-in-fact of such Persons and Affiliates.<\/p>\n
“Agent’s Payment Office” means the address for payments set forth on the
\nsignature page hereto in relation to the Agent, or such other address as the
\nAgent may from time to time specify.<\/p>\n
“Agreement” means this Credit Agreement.<\/p>\n
“Arranger” means Deutsche Morgan Grenfell, Inc., a Delaware corporation.<\/p>\n
“Assignee” has the meaning specified in subsection 10.8(a).<\/p>\n
“Attorney Costs” means and includes all reasonable fees and
\ndisbursements of any law firm or other external counsel, the reasonable
\nallocated cost of internal legal services and all disbursements of internal
\ncounsel.<\/p>\n
“Bankruptcy Code” means the Federal Bankruptcy Reform Act of 1978 (11
\nU.S.C. Section 101, et seq.).<\/p>\n
“Base Rate” means, for any day, the higher of:<\/p>\n
(a) 0.50% per annum above the latest Federal Funds Rate; and (b)
\n the rate of interest in effect for such day as publicly announced from
\n time to time by Deutsche Bank in New York, New York, as its “prime
\n lending rate.” The “prime lending rate” shall mean the rate announced by
\n Deutsche Bank from time to time as its prime lending rate for secured
\n commercial loans within the United States (but is not intended to be the
\n lowest rate of interest charged by Deutsche Bank in connection with
\n extensions of credit to debtors.)<\/p>\n
Any change in the prime rate announced by Deutsche Bank shall take
\neffect at the opening of business on the day specified in the public
\nannouncement of such change.<\/p>\n
“Base Rate Loan” means a Loan that bears interest based on the Base
\nRate.<\/p>\n
“Borrowing” means a borrowing hereunder consisting of Loans of the same
\nType made to the Borrower on the same day by the Lenders under Article II, and,
\nother than in the case of Base Rate Loans, having the same Interest Period.<\/p>\n
“Business Day” means any day other than a Saturday, Sunday or other day
\non which commercial banks in New York City are authorized or required by law to
\nclose <\/p>\n
-2-<\/p>\n
9
\nand, if the applicable Business Day relates to any LIBOR Rate Loan, means such a
\nday on which dealings are carried on in the London interbank market.<\/p>\n
“Capital Adequacy Regulation” means any guideline, request or directive
\nof any central bank or other Governmental Authority, or any other law, rule or
\nregulation, whether or not having the force of law, in each case, regarding
\ncapital adequacy of any bank or of any corporation controlling a bank.<\/p>\n
“Capital Expenditure Component” shall mean, with respect to the fiscal
\nyears described below, the lower of Limit A and Limit B set forth below:<\/p>\n
FISCAL YEAR LIMIT A LIMIT B<\/p>\n
[ * ]<\/p>\n
in each case, where “Sales” means revenues on a GAAP basis for the relevant
\nperiod as reported (or to be reported) on annual financial statements filed with
\nthe SEC or in connection with delivery of financial information under Section
\n6.1 hereof if such financial statements are no longer filed by the Borrower with
\nthe SEC.<\/p>\n
“Cash Equivalents” means (i) securities with maturities of one year or
\nless from the date of acquisition issued or fully guaranteed or insured by the
\nUnited States Government or any agency thereof, (ii) certificates of deposit,
\neurodollar time deposits, overnight bank deposits, bankers’ acceptances and
\nrepurchase agreements of any Lender or any other commercial bank whose unsecured
\nlong-term debt obligations are rated at least A-1 by Standard & Poor’s Ratings
\nService Group, a division of the McGraw Hill Companies, Inc., and any successor
\nthereto (“S&P”) or A3 by Moody’s Investors Service, Inc. having maturities of
\none year or less from the date of acquisition, and (iii) commercial paper rated
\nat least A-1 by S&P or P-1 by Moody’s Investors Service, Inc., or carrying an
\nequivalent rating by a nationally recognized rating agency, if both of the two
\nnamed rating agencies cease publishing ratings of investments.<\/p>\n
“CERCLA” has the meaning specified in the definition of “Environmental
\nLaws.”<\/p>\n
“Change of Control” means the occurrence of the following: (a) any
\nsingle person or single entity or group of persons acting in concert that is not
\na significant shareholder of the Borrower as of the date of closing acquires 20%
\nor more of the <\/p>\n
————–<\/p>\n
[ * ] Confidential Treatment Requested<\/p>\n
-3-<\/p>\n
10
\nissued and outstanding stock of the Borrower and (b) the aggregate percentage of
\nthe issued and outstanding stock of the Borrower owned by Jeffrey Bezos, his
\nimmediate family (which only includes his spouse, his parents, his children, his
\nsiblings and his aunts and uncles) and their heirs which are members of his
\nimmediate family, trusts and other entities established for and controlled by
\nJeffrey Bezos and his immediate family and funds controlled by Kleiner Perkins
\nCaufield & Byers is less than 40% in the aggregate.<\/p>\n
“Closing Date” means the date on which all conditions precedent set
\nforth in Section 4.1 are satisfied or waived by all Lenders (or, in the case of
\nsubsection 4.1(e), waived by the Person entitled to receive such payment).<\/p>\n
“Code” means the Internal Revenue Code of 1986, and regulations
\npromulgated thereunder.<\/p>\n
“Collateral” means all property and interests in property and proceeds
\nthereof now owned or hereafter acquired by the Borrower and its Subsidiaries in
\nor upon which a Lien now or hereafter exists in favor of the Lenders, or the
\nAgent on behalf of the Lenders, whether under this Agreement or under any other
\ndocuments executed by any such Person and delivered to the Agent or the Lenders.<\/p>\n
“Collateral Documents” means, collectively, (i) the Security Agreement,
\nand all other security agreements, mortgages, deeds of trust, patent and
\ntrademark assignments, lease assignments, guarantees and other similar
\nagreements between the Borrower or any Subsidiary and the Lenders or the Agents
\nfor the benefit of the Lenders now or hereafter delivered to the Lenders or the
\nAgent pursuant to or in connection with the transactions contemplated hereby,
\nand all financing statements (or comparable documents now or hereafter filed in
\naccordance with the Uniform Commercial Code or comparable law) against the
\nBorrower or any Subsidiary as debtor in favor of the Lenders or the Agent for
\nthe benefit of the Lenders as secured party, and (ii) any amendments,
\nsupplements, modifications, renewals, replacements, consolidations,
\nsubstitutions and extensions of any of the foregoing.<\/p>\n
“Commitment” means seventy-five million dollars ($75,000,000).<\/p>\n
“Commitment Letter” means that certain letter dated as of November 7,
\n1997, among the Arranger, the Agent and the Borrower.<\/p>\n
“Compliance Certificate” means a certificate substantially in the form
\nof Exhibit B.<\/p>\n
-4-<\/p>\n
11
\n “Contingent Obligation” means, as to any Person, any direct or indirect
\nliability of that Person, whether or not contingent, with or without recourse,
\n(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
\nobligation (the “primary obligations”) of another Person (the “primary
\nobligor”), including any obligation of that Person (i) to purchase, repurchase
\nor otherwise acquire such primary obligations or any security therefor, (ii) to
\nadvance or provide funds for the payment or discharge of any such primary
\nobligation, or to maintain working capital or equity capital of the primary
\nobligor or otherwise to maintain the net worth or solvency or any balance sheet
\nitem, level of income or financial condition of the primary obligor, (iii) to
\npurchase property, securities or services primarily for the purpose of assuring
\nthe owner of any such primary obligation of the ability of the primary obligor
\nto make payment of such primary obligation, or (iv) otherwise to assure or hold
\nharmless the holder of any such primary obligation against loss in respect
\nthereof (each, a “Guaranty Obligation”); (b) with respect to any Surety
\nInstrument issued for the account of that Person or as to which that Person is
\notherwise liable for reimbursement of drawings or payments; (c) to purchase any
\nmaterials, supplies or other property from, or to obtain the services of,
\nanother Person if the relevant contract or other related document or obligation
\nrequires that payment for such materials, supplies or other property, or for
\nsuch services, shall be made regardless of whether delivery of such materials,
\nsupplies or other property is ever made or tendered, or such services are ever
\nperformed or tendered, or (d) in respect of any Swap Contract. The amount of any
\nContingent Obligation shall, in the case of Guaranty Obligations, be deemed
\nequal to the stated or determinable amount of the primary obligation in respect
\nof which such Guaranty Obligation is made or, if not stated or if
\nindeterminable, the maximum reasonably anticipated liability in respect thereof,
\nand in the case of other Contingent Obligations, shall be equal to the maximum
\nreasonably anticipated liability in respect thereof.<\/p>\n
“Contractual Obligation” means, as to any Person, any provision of any
\nsecurity issued by such Person or of any agreement, undertaking, contract,
\nindenture, mortgage, deed of trust or other instrument, document or agreement to
\nwhich such Person is a party or by which it or any of its property is bound.<\/p>\n
“Conversion\/Continuation Date” means any date on which, under Section
\n2.4, the Borrower (a) converts Loans of one Type to another Type, or (b)
\ncontinues as Loans of the same Type, but with a new Interest Period, Loans
\nhaving Interest Periods expiring on such date.<\/p>\n
“Debt Consideration” means, with respect to any Acquisition or
\nInvestment, the aggregate amount, without duplication, of all Indebtedness and
\nContingent Obligations which would appear on a balance sheet of the Person
\nsubject to such <\/p>\n
-5-<\/p>\n
12
\nAcquisition or Investment immediately after giving effect to such Acquisition or
\nInvestment to the extent such Indebtedness or Contingent Obligation is a
\nrecourse obligation of the Person making such Investment or consummating such
\nAcquisition.<\/p>\n
“Default” means any event or circumstance which, with the giving of
\nnotice, the lapse of time, or both, would (if not cured or otherwise remedied
\nduring such time) constitute an Event of Default.<\/p>\n
“Deutsche Bank” means Deutsche Bank AG, New York Branch, the New York
\nBranch of Deutsche Bank AG, a German banking corporation.<\/p>\n
“Disposition” means (i) the sale, lease, conveyance or other disposition
\nof property, other than sales or other dispositions expressly permitted under
\nsubsection 7.2(a) or 7.2(b), and (ii) the sale or transfer by the Borrower or
\nany Subsidiary of the Borrower of any equity securities issued by any Subsidiary
\nof the Borrower and held by such transferor Person.<\/p>\n
“Dollars,” “dollars” and “$” each mean lawful money of the United
\nStates.<\/p>\n
“EBITDA” means, with respect to the Borrower and its Subsidiaries for
\nany applicable period, Net Income for such period, plus, to the extent deducted
\nin determining Net Income for such period, the aggregate amount of (i) Interest
\nExpense, (ii) federal, state, local, foreign income and business and occupation
\ntaxes and up to $150,000 of Delaware franchise taxes per fiscal year paid by the
\nBorrower and (iii) depletion, depreciation and amortization of tangible and
\nintangible assets (including, without limitation, amortization of unearned
\ncompensation in respect of stock options to the extent reported in accordance
\nwith GAAP in the Borrower’s consolidated statements of cash flows).<\/p>\n
“Eligible Assignee” means (i) a commercial bank organized under the laws
\nof the United States, or any state thereof, and having a combined capital and
\nsurplus of at least $100,000,000; (ii) a commercial bank organized under the
\nlaws of any other country which is a member of the Organization for Economic
\nCooperation and Development (the “OECD”), or a political subdivision of any such
\ncountry, and having a combined capital and surplus of at least $100,000,000,
\nprovided that such bank is acting through a branch or agency located in the
\ncountry in which it is organized or another country which is also a member of
\nthe OECD; (iii) a Person that is primarily engaged in the business of commercial
\nbanking and that is (A) a Subsidiary of a Lender, (B) a Subsidiary of a Person
\nof which a Lender is a Subsidiary, or (C) a Person of which a Lender is a
\nSubsidiary; or (iv) a finance company, insurance company, other financial
\ninstitution or fund, reasonably acceptable to the Agent, which has a combined
\ncapital and surplus in excess of <\/p>\n
-6-<\/p>\n
13
\n$100,000,000, which is regularly engaged in making, purchasing or investing in
\nloans of the type proposed to be assigned to such assignee; provided, however,
\nthat no Eligible Assignee shall be an Affiliate or competitor of the Borrower,
\nor an Affiliate of such competitor.<\/p>\n
“Environmental Claims” means all claims, however asserted, by any
\nGovernmental Authority or other Person alleging potential liability or
\nresponsibility for violation of any Environmental Law, or for release or injury
\nto the environment or threat to public health, personal injury (including
\nsickness, disease or death), property damage, natural resources damage, or
\notherwise alleging liability or responsibility for damages (punitive or
\notherwise), cleanup, removal, remedial or response costs, restitution, civil or
\ncriminal penalties, injunctive relief, or other type of relief, resulting from
\nor based upon the presence, placement, discharge, emission or release (including
\nintentional and unintentional, negligent and non-negligent, sudden or
\nnon-sudden, accidental or non-accidental, placement, spills, leaks, discharges,
\nemissions or releases) of any Hazardous Material at, in, or from property used
\nby the Borrower, whether or not owned by the Borrower.<\/p>\n
“Environmental Laws” means all federal, state or local laws, statutes,
\ncommon law duties, rules, regulations, ordinances and codes, together with all
\nadministrative orders, directed duties, requests, licenses, authorizations and
\npermits of, and agreements with, any Governmental Authorities, in each case
\nrelating to environmental, health, safety and land use matters; including the
\nComprehensive Environmental Response, Compensation and Liability Act of 1980
\n(“CERCLA”), the Clean Air Act, the Federal Water Pollution Control Act of 1972,
\nthe Solid Waste Disposal Act, the Federal Resource Conservation and Recovery
\nAct, the Toxic Substances Control Act, and the Emergency Planning and Community
\nRight-to-Know Act.<\/p>\n
“Equity Consideration” shall mean, in connection with an Acquisition or
\nInvestment, the value (determined as of the date of such Acquisition or
\nInvestment) of all common equity of the Borrower used as consideration in making
\nsuch Acquisition or Investment.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, and
\nregulations promulgated thereunder.<\/p>\n
“ERISA Affiliate” means any trade or business (whether or not
\nincorporated) under common control with the Borrower within the meaning of
\nSection 414(b) or (c) of the Code (and, solely for purposes of provisions herein
\nrelating to Section 412 of the Code, Sections 414(m) and (o) of the Code).<\/p>\n
-7-<\/p>\n
14
\n “ERISA Event” means (a) a Reportable Event with respect to a Pension
\nPlan; (b) a withdrawal by the Borrower or any ERISA Affiliate from a Pension
\nPlan subject to Section 4063 of ERISA during a plan year in which it was a
\nsubstantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
\nof operations which is treated as such a withdrawal under Section 4062(e) of
\nERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
\nAffiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
\nin reorganization; (d) the filing of a notice of intent to terminate, the
\ntreatment of a Plan amendment as a termination under Section 4041 or 4041A of
\nERISA, or the commencement of proceedings by the PBGC to terminate a Pension
\nPlan or Multiemployer Plan; (e) an event or condition which might reasonably be
\nexpected to constitute grounds under Section 4042 of ERISA for the termination
\nof, or the appointment of a trustee to administer, any Pension Plan or
\nMultiemployer Plan; or (f) the imposition of any liability under Title IV of
\nERISA, other than PBGC premiums due but not delinquent under Section 4007 of
\nERISA, upon the Borrower or any ERISA Affiliate.<\/p>\n
“Eurodollar Reserve Percentage” has the meaning specified in the
\ndefinition of “LIBOR Rate.”<\/p>\n
“Event of Default” means any of the events or circumstances specified in
\nSection 8.1.<\/p>\n
“Event of Loss” means, with respect to any property, any of the
\nfollowing: (a) any loss, destruction or damage of such property; (b) any pending
\nor threatened institution of any proceedings for the condemnation or seizure of
\nsuch property or for the exercise of any right of eminent domain; or (c) any
\nactual condemnation, seizure or taking, by exercise of the power of eminent
\ndomain or otherwise, of such property, or confiscation of such property or the
\nrequisition of the use of such property.<\/p>\n
“Exchange Act” means the Securities and Exchange Act of 1934, and
\nregulations promulgated thereunder.<\/p>\n
“Federal Funds Rate” means, for any day, the rate set forth in the
\nweekly statistical release designated as H.15(519), or any successor
\npublication, published by the Federal Reserve Bank of New York (including any
\nsuch successor, “H.15(519)”) on the preceding Business Day opposite the caption
\n“Federal Funds (Effective)”; or, if for any relevant day such rate is not so
\npublished on any such preceding Business Day, the rate for such day will be the
\narithmetic mean as determined by the Agent of the rates for the last transaction
\nin overnight Federal funds arranged prior to 9:00 a.m. (New York City time) on
\nthat day by each of three leading brokers of Federal funds transactions in New
\nYork City selected by the Agent.<\/p>\n
-8-<\/p>\n
15
\n “FRB” means the Board of Governors of the Federal Reserve System, and
\nany Governmental Authority succeeding to any of its principal functions.<\/p>\n
“GAAP” means generally accepted accounting principles set forth from
\ntime to time in the opinions and pronouncements of the Accounting Principles
\nBoard and the American Institute of Certified Public Accountants and statements
\nand pronouncements of the Financial Accounting Standards Board (or agencies with
\nsimilar functions of comparable stature and authority within the U.S. accounting
\nprofession), which are applicable to the circumstances as of the date of
\ndetermination.<\/p>\n
“Governmental Authority” means any nation or government, any state or
\nother political subdivision thereof, any central bank (or similar monetary or
\nregulatory authority) thereof, any entity exercising executive, legislative,
\njudicial, regulatory or administrative functions of or pertaining to government,
\nand any corporation or other entity owned or controlled, through stock or
\ncapital ownership or otherwise, by any of the foregoing.<\/p>\n
“Guaranty Obligation” has the meaning specified in the definition of
\n“Contingent Obligation.”<\/p>\n
“Hazardous Materials” means all those substances that are regulated by,
\nor which may form the basis of liability under, any Environmental Law, including
\nall substances identified under any Environmental Law as a pollutant,
\ncontaminant, hazardous waste, hazardous constituent, special waste, hazardous
\nsubstance, hazardous material, or toxic substance, or petroleum or petroleum
\nderived substance or waste.<\/p>\n
“Indebtedness” of any Person means, without duplication, (a) all
\nindebtedness for borrowed money; (b) all obligations issued, undertaken or
\nassumed as the deferred purchase price of property or services (other than trade
\npayables entered into in the ordinary course of business on terms of not more
\nthan 180 days); (c) all non-contingent reimbursement or payment obligations with
\nrespect to Surety Instruments; (d) all obligations evidenced by notes, bonds,
\ndebentures or similar instruments, including obligations so evidenced incurred
\nin connection with the acquisition of property, assets or businesses; (e) all
\nindebtedness created or arising under any conditional sale or other title
\nretention agreement, or incurred as financing, in either case with respect to
\nproperty acquired by the Person (even though the rights and remedies of the
\nseller or bank under such agreement in the event of default are limited to
\nrepossession or sale of such property); (f) all obligations with respect to
\ncapital leases; (g) all net obligations with respect to Swap Contracts; (h) all
\nindebtedness referred to in clauses (a) through (g) above secured by (or for
\nwhich the holder of such Indebtedness has an existing right, contingent or
\notherwise, to be secured by) any <\/p>\n
-9-<\/p>\n
16
\nLien upon or in property (including accounts and contracts rights) owned by such
\nPerson, even though such Person has not assumed or become liable for the payment
\nof such Indebtedness; and (i) all Guaranty Obligations in respect of
\nindebtedness or obligations of others of the kinds referred to in clauses (a)
\nthrough (g) above.<\/p>\n
“Indemnified Liabilities” has the meaning specified in Section 10.5.<\/p>\n
“Indemnified Person” has the meaning specified in Section 10.5.<\/p>\n
“Independent Auditor” has the meaning specified in subsection 6.1(a).<\/p>\n
“Insolvency Proceeding” means (a) any case, action or proceeding before
\nany court or other Governmental Authority relating to bankruptcy,
\nreorganization, insolvency, liquidation, receivership, dissolution, winding-up
\nor relief of debtors, or (b) any general assignment for the benefit of
\ncreditors, composition, marshalling of assets for creditors, or other, similar
\narrangement in respect of its creditors generally or any substantial portion of
\nits creditors; undertaken under U.S. Federal, state or foreign law, including
\nthe Bankruptcy Code.<\/p>\n
“Interest Expense” means, for any applicable period, the aggregate
\nconsolidated interest expense (both cash and non-cash and determined without
\nregard to original issue discount) of the Borrower and its Subsidiaries for such
\nperiod, as determined in accordance with GAAP, including, to the extent
\nallocable to interest expense in accordance with GAAP, (i) all other fees paid
\nor owed with respect to the issuance or maintenance of Contingent Obligations
\n(including letters of credit of the Borrower and its Subsidiaries), (ii) net
\ncosts or benefits under Swap Contracts of the Borrower and its Subsidiaries and
\n(iii) the portion of any payments made in respect of obligations in respect of
\ncapitalized leases of the Borrower and its Subsidiaries allocable to interest
\nexpense.<\/p>\n
“Interest Margin” means<\/p>\n
(i) with respect to Base Rate Loans, 1.50%; and<\/p>\n
(ii) with respect to LIBOR Rate Loans, 3.50%;<\/p>\n
provided that in each instance the Interest Margin shall increase by 0.50%
\nfollowing the sixth month anniversary of the disbursement of Loans hereunder.<\/p>\n
“Interest Payment Date” means, as to any Loan other than a Base Rate
\nLoan, the last day of each Interest Period applicable to such Loan and, as to
\nany Base Rate Loan, the last Business Day of each calendar quarter and each date
\nsuch Loan is converted into another Type of Loan; provided, however, that if any
\nInterest Period <\/p>\n
-10-<\/p>\n
17
\nfor a LIBOR Rate Loan exceeds three months, the date that falls three months
\nafter the beginning of such Interest Period and after each Interest Payment Date
\nthereafter is also an Interest Payment Date.<\/p>\n
“Interest Period” means, as to any LIBOR Rate Loan, the period
\ncommencing on the Conversion\/Continuation Date on which the Loan is converted
\ninto or continued as a LIBOR Rate Loan, and ending on the date one, two, three
\nor six months thereafter as selected by the Borrower in its Notice of
\nConversion\/Continuation;<\/p>\n
provided that:<\/p>\n
(i) if any Interest Period would otherwise end on a day that is
\nnot a Business Day, that Interest Period shall be extended to the following
\nBusiness Day unless, in the case of a LIBOR Rate Loan, the result of such
\nextension would be to carry such Interest Period into another calendar month, in
\nwhich event such Interest Period shall end on the preceding Business Day;<\/p>\n
(ii) any Interest Period pertaining to a LIBOR Rate Loan that
\nbegins on the last Business Day of a calendar month (or on a day for which there
\nis no numerically corresponding day in the calendar month at the end of such
\nInterest Period) shall end on the last Business Day of the calendar month at the
\nend of such Interest Period; and<\/p>\n
(iii) no Interest Period shall extend beyond the Maturity Date.<\/p>\n
“Investment” means any investment, ownership or similar interest in any
\nPerson, whether by means of share purchase, capital, equity or similar
\ncontribution, including, without limitation, any Acquisition, and “Investment”
\nshall include any loan or advance (including any Contingent Liability with
\nrespect thereto), time deposit or otherwise (excluding commission, travel and
\nsimilar advances to officers and employees made in the ordinary course of
\nbusiness and excluding trade receivables owing to the Borrower or its
\nSubsidiaries in the ordinary course of business and on terms no less favorable
\nto the Borrower and its Subsidiaries than would be obtained in an arms-length
\ntransaction with Persons which are not Affiliates of the Borrower). The original
\namount of any Investment shall be the original principal or capital amount
\nthereof and shall, if made by the transfer or exchange or property other than
\ncash, be deemed to have been made in an original principal or capital amount
\nequal to the fair market value of such property.<\/p>\n
“IRS” means the Internal Revenue Service, and any Governmental Authority
\nsucceeding to any of its principal functions under the Code.<\/p>\n
-11-<\/p>\n
18
\n “Joint Venture” means a corporation, partnership, limited liability
\ncompany, joint venture or other similar legal arrangement (whether created by
\ncontract or conducted through a separate legal entity) now or hereafter formed
\nby the Borrower or any of its Subsidiaries with one or more other Persons in
\norder to conduct a common venture or enterprise with such Person.<\/p>\n
“Lender” has the meaning specified in the introductory clause hereto.<\/p>\n
“Lending Office” means, as to any Lender, the office or offices of such
\nLender specified as its “Lending Office” or “Domestic Lending Office” or “LIBOR
\nLending Office,” as the case may be, on Schedule 10.2, or such other office or
\noffices as the Lender may from time to time notify the Borrower and the Agent.<\/p>\n
“LIBOR Rate” means, for any Interest Period, with respect to LIBOR Rate
\nLoans comprising part of the same Borrowing, the rate of interest per annum
\n(rounded upward to the next 1\/16th of 1%) determined by the Agent as follows:<\/p>\n
LIBOR Rate = LIBOR
\n ————————————
\n 1.00 – Eurodollar Reserve Percentage<\/p>\n
Where,<\/p>\n
“Eurodollar Reserve Percentage” means for any day for any Interest
\nPeriod the maximum reserve percentage (expressed as a decimal, rounded upward to
\nthe next 1\/100th of 1%) in effect on such day (whether or not applicable to any
\nLender) under regulations issued from time to time by the FRB for determining
\nthe maximum reserve requirement (including any emergency, supplemental or other
\nmarginal reserve requirement) with respect to Eurocurrency funding (currently
\nreferred to as “Eurocurrency liabilities”); and<\/p>\n
“LIBOR” means the rate of interest per annum determined by the Agent as
\nthe rate of interest at which dollar deposits in the approximate amount of the
\namount of the Loan to be made or continued as, or converted into, a LIBOR Rate
\nLoan and for the relevant Interest Period therefor as quoted on the Telerate
\nPage 3750 (as defined herein) as of 11:00 a.m. (London time) on the day two (2)
\nBusiness Days before the commencement of such Interest Period. If Telerate Page
\n3750 is not available, such rate of interest shall be that quoted by the
\nReference Bank and having a maturity comparable to such Interest Period as would
\nbe offered to major banks in the London interbank market at their request at
\napproximately 11:00 a.m. (London time) two Business Days prior to the
\ncommencement of such Interest Period.<\/p>\n
-12-<\/p>\n
19
\n The LIBOR Rate shall be adjusted automatically as to all LIBOR Rate
\nLoans then outstanding as of the effective date of any change in the Eurodollar
\nReserve Percentage.<\/p>\n
“LIBOR Rate Loan” means a Loan that bears interest based on the LIBOR
\nRate.<\/p>\n
“Lien” means any security interest, mortgage, deed of trust, pledge,
\nhypothecation, assignment for security purposes, charge, encumbrance, lien
\n(statutory or other) of any kind or nature whatsoever in respect of any property
\n(including those created by, arising under or evidenced by any conditional sale
\nor other title retention agreement, the interest of a lessor under a capital
\nlease, any financing lease having substantially the same economic effect as any
\nof the foregoing, or the filing of any financing statement naming the owner of
\nthe asset to which such lien relates as debtor, under the Uniform Commercial
\nCode or any comparable law) and any contingent or other agreement to provide any
\nof the foregoing, but not including the interest of a lessor under an operating
\nlease.<\/p>\n
“Loan” means an extension of credit by a Lender to the Borrower under
\nArticle II, and may be a Base Rate Loan or a LIBOR Rate Loan (each, a “Type” of
\nLoan).<\/p>\n
“Loan Documents” means this Agreement, any Notes, the Warrants, the
\nCollateral Documents, the Commitment Letter and all other documents delivered to
\nthe Agent or any Lender in connection herewith.<\/p>\n
“Margin Stock” means “margin stock” as such term is defined in
\nRegulation G, T, U or X of the FRB.<\/p>\n
“Material Adverse Effect” means (a) a material adverse change in, or a
\nmaterial adverse effect upon, the operations, business, properties, condition
\n(financial or otherwise) or prospects of the Borrower or the Borrower and its
\nSubsidiaries taken as a whole; (b) a material impairment of the ability of the
\nBorrower or any Subsidiary to perform under any Loan Document and to avoid any
\nEvent of Default; or (c) a material adverse effect upon (i) the legality,
\nvalidity, binding effect or enforceability against the Borrower or any
\nSubsidiary of any Loan Document, or (ii) the perfection or priority of any Lien
\ngranted under any of the Collateral Documents; provided, an effect described in
\nthe preceding clauses (a), (b), and (c) shall constitute a “Material Adverse
\nEffect” only if it could reasonably be expected to materially impair the ability
\nor legally enforceable obligation of the Borrower or any Subsidiary to perform
\nits obligations under the Loan Documents or otherwise deprive the Lenders or any
\none of them of the practical realization of the principal benefits intended
\nthereby.<\/p>\n
-13-<\/p>\n
20
\n “Material Subsidiary” means, at any time, any Subsidiary which has not
\nbeen designated by the Borrower as a “Non-Material Subsidiary” pursuant to
\nSection 7.16.<\/p>\n
“Maturity Date” means the earlier of (i) December 23, 2000 and (ii) the
\ndate the Obligations are accelerated pursuant to Section 8.2 hereof.<\/p>\n
“Minimum Cash Balance” shall mean the sum of (a) the difference of (i)
\n[ * ] 1 less (ii) cash interest payments that have already been paid hereunder
\nin respect of the Loans plus (b) the positive difference, if any, of (i) the
\naggregate of all Special Investments after the date hereof less (ii) the
\naggregate of all Special Investment Returns after the date hereof.<\/p>\n
“Multiemployer Plan” means a “multiemployer plan,” within the meaning of
\nSection 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate makes,
\nis making, or is obligated to make contributions or, during the preceding three
\ncalendar years, has made, or been obligated to make, contributions.<\/p>\n
“Net Income” means, for any applicable period, the aggregate of all
\namounts which, in accordance with GAAP, would be included as net income (or net
\nloss (including any extraordinary losses)) on a consolidated statement of income
\nof the Borrower and its Subsidiaries for such period; provided, however, that
\n“Net Income” shall exclude (i) the effect of any extraordinary or other
\nnon-recurring non-cash gain outside the ordinary course of business and (ii) any
\nwrite-up in the value of any asset (to the extent such write-up exceeds any
\nwrite-down taken in connection with the same transaction or event which gave
\nrise to such write-up).<\/p>\n
“Net Issuance Proceeds” means, as to any issuance of debt for borrowed
\nmoney or equity by any Person, cash and Cash Equivalent proceeds and instruments
\nreceived or receivable by such Person in connection therewith, net of reasonable
\nout-of-pocket costs and expenses paid or incurred in connection therewith in
\nfavor of any Person not an Affiliate of such Person, such costs and expenses not
\nto exceed 5% of the gross proceeds of such issuance.<\/p>\n
“Net Proceeds” means, as to any Disposition by a Person, proceeds in
\ncash, checks or other Cash Equivalent financial instruments as and when received
\nby such Person, net of: (a) the direct costs relating to such Disposition
\nexcluding amounts payable to such Person or any Affiliate of such Person, (b)
\nsale, use or other <\/p>\n
———–<\/p>\n
[ * ] Confidential Treatment Requested<\/p>\n
1 To be increased by the percentage that facility is in excess of $75
\n million.<\/p>\n
-14-<\/p>\n
21
\ntransaction taxes (including capital gains taxes) paid or payable by such Person
\nas a direct result thereof, and (c) amounts required to be applied to repay
\nprincipal, interest and prepayment premiums and penalties on Indebtedness
\nsecured by a Lien on the asset which is the subject of such Disposition to the
\nextent such Lien is permitted hereunder. “Net Proceeds” shall also include
\nproceeds paid on account of any Event of Loss, net of (i) all money actually
\napplied to repair or reconstruct the damaged property or property affected by
\nthe condemnation or taking, (ii) all of the costs and expenses reasonably
\nincurred in connection with the collection of such proceeds, award or other
\npayments, and (iii) any amounts retained by or paid to parties having superior
\nrights to such proceeds, awards or other payments.<\/p>\n
“Non-Material Subsidiary” means any Subsidiary which is designated as
\nsuch by the Borrower pursuant to Section 7.16.<\/p>\n
“Note” means a promissory note executed by the Borrower in favor of a
\nLender pursuant to subsection 2.2(b), in substantially the form of Exhibit E.<\/p>\n
“Notice of Conversion\/Continuation” means a notice in substantially the
\nform of Exhibit A.<\/p>\n
“Obligations” means all advances, debts, liabilities, obligations,
\ncovenants and duties arising under any Loan Document owing by the Borrower to
\nany Lender, the Agent, or any Indemnified Person, whether direct or indirect
\n(including those acquired by assignment), absolute or contingent, due or to
\nbecome due, now existing or hereafter arising.<\/p>\n
“Organization Documents” means, for any corporation, the certificate or
\narticles of incorporation, the bylaws, any certificate of determination or
\ninstrument relating to the rights of preferred shareholders of such corporation,
\nany shareholder rights agreement, and all applicable resolutions of the board of
\ndirectors (or any committee thereof) of such corporation pertaining to the Loan
\nDocuments.<\/p>\n
“Other Taxes” means any present or future stamp or documentary taxes or
\nany other excise or property taxes, charges or similar levies which arise from
\nany payment made hereunder or from the execution, delivery or registration of,
\nor otherwise with respect to, this Agreement or any other Loan Documents.<\/p>\n
“Participant” has the meaning specified in subsection 10.8(d).<\/p>\n
“PBGC” means the Pension Benefit Guaranty Corporation, or any
\nGovernmental Authority succeeding to any of its principal functions under ERISA.<\/p>\n
-15-<\/p>\n
22
\n “Pension Plan” means a pension plan (as defined in Section 3(2) of
\nERISA) subject to Title IV of ERISA which the Borrower sponsors, maintains, or
\nto which it makes, is making, or is obligated to make contributions, or in the
\ncase of a multiple employer plan (as described in Section 4064(a) of ERISA) has
\nmade contributions at any time during the immediately preceding five (5) plan
\nyears.<\/p>\n
“Permitted Liens” has the meaning specified in Section 7.1.<\/p>\n
“Person” means an individual, partnership, corporation, limited
\nliability company, business trust, joint stock company, trust, unincorporated
\nassociation, joint venture or Governmental Authority.<\/p>\n
“Plan” means an employee benefit plan (as defined in Section 3(3) of
\nERISA) which the Borrower sponsors or maintains or to which the Borrower makes,
\nis making, or is obligated to make contributions and includes any Pension Plan.<\/p>\n
“Pro Rata Share” means, as to any Lender at any time, the percentage
\nequivalent (expressed as a decimal, rounded to the ninth decimal place) at such
\ntime of such Lender’s Commitment divided by the combined Commitments of all
\nLenders.<\/p>\n
“Reference Bank” means Deutsche Bank.<\/p>\n
“Reportable Event” means, any of the events set forth in Section 4043(c)
\nof ERISA or the regulations thereunder, other than any such event for which the
\n30-day notice requirement under ERISA has been waived by statute, regulation or
\notherwise.<\/p>\n
“Required Cash Balance” shall mean the lesser of (i) [ * ] and (ii) the
\nMinimum Cash Balance.<\/p>\n
“Required Lenders” means at any time at least two Lenders then holding
\nat least 51% of the then aggregate unpaid principal amount of the Loans, or, if
\nno such principal amount is then outstanding, at least two Lenders then having
\nPro Rata Shares equal to at least 51% of the Commitments.<\/p>\n
“Requirement of Law” means, as to any Person, any law (statutory or
\ncommon), treaty, rule or regulation or determination of an arbitrator or of a
\nGovernmental Authority, in each case applicable to or binding upon the Person or
\nany of its property or to which the Person or any of its property is subject.<\/p>\n
————<\/p>\n
[ * ] Confidential Treatment Requested<\/p>\n
-16-<\/p>\n
23
\n “Responsible Officer” means the chief executive officer or the president
\nof the Borrower, or any other officer having substantially the same authority
\nand responsibility; or, with respect to compliance with financial covenants, the
\nchief financial officer or the treasurer of the Borrower, or any other officer
\nhaving substantially the same authority and responsibility.<\/p>\n
“Restricted Person” shall mean any Person (a) which has not executed a
\nguaranty as described in Section 6.14(d), (b) which has not executed a security
\nagreement as described in Section 6.14(d) granting a perfected first priority
\nsecurity interest (subject only to Permitted Liens other than those described in
\nSection 7.1(i)) in substantially all of the property of such Person (including,
\nwithout limitation, all material property of such Person) in favor of the Agent
\nfor the benefit of the Lenders, or (c) the stock or other equity interests of
\nwhich, to the extent owned, directly or indirectly, by the Borrower and its
\nAffiliates, has not been pledged, to the Agent for the benefit of the Lenders
\npursuant to a pledge agreement as described in Section 6.14(d) which pledge
\nagreement grants in favor of the Agent a perfected first priority pledge
\nagreement (subject only to Permitted Liens other than those described in Section
\n7.1(i)), in each case of clauses (a), (b) and (c) of this definition, whether or
\nnot such Person is a Subsidiary of the Borrower.<\/p>\n
“SEC” means the Securities and Exchange Commission, or any Governmental
\nAuthority succeeding to any of its principal functions.<\/p>\n
“Special Investment” shall mean, without duplication, each of the
\nfollowing: (a) Investments in Restricted Persons (excluding Investments to the
\nextent made by the Borrower using Equity Consideration and including any Debt
\nConsideration in respect thereof) and, (b) Investments consisting of the
\nassumption or incurrence of Indebtedness by the Borrower, or any Subsidiary
\nwhich is not Restricted Person, permitted under Section 7.5(h).<\/p>\n
“Special Investment Return” shall mean, without duplication, each of the
\nfollowing: (a) the amount of all proceeds, dividends, or distributions (in each
\ncase to the extent consisting of cash and Cash Equivalents) received by the
\nBorrower, or any Subsidiary which is not a Restricted Person, in respect of a
\nSpecial Investment made by the Borrower or such Subsidiary, as the case may be,
\nand applied, to extent required pursuant thereto in accordance with Section 2.6,
\nbut limited in the aggregate to the extent of the original amount of such
\nSpecial Investment, (b) the amount of any Special Investment (if of the type
\ndescribed in clause (a) of the definition thereof) to the extent the Person in
\nwhich such Special Investment was made ceases to be a Restricted Person and (c)
\nthe amount of any Special Investment consisting of a Contingent Obligation
\npermitted under Section 7.8(e) to the extent the underlying obligation is
\nsatisfied, not by the Borrower, but by the primary obligor thereof, or <\/p>\n
-17-<\/p>\n
24
\nanother Person which is not the Borrower or an Affiliate of the Borrower. For
\npurposes of clause (b) of this definition, the amount of a Special Investment
\nshall be deemed reduced from the original amount thereof by all proceeds,
\ndividends and distributions received by the Borrower as described in clause (a)
\nof this definition.<\/p>\n
“Solvent” means, as to any Person at any time, that (a) the fair value
\nof the property of such Person is greater than the amount of such Person’s
\nliabilities (including disputed, contingent and unliquidated liabilities) as
\nsuch value is established and liabilities evaluated for purposes of Section
\n101(31) of the Bankruptcy Code and, in the alternative, for purposes of the New
\nYork Uniform Fraudulent Transfer Act; (b) the present fair saleable value of the
\nproperty of such Person is not less than the amount that will be required to pay
\nthe probable liability of such Person on its debts as they become absolute and
\nmatured; (c) such Person is able to realize upon its property and pay its debts
\nand other liabilities (including disputed, contingent and unliquidated
\nliabilities) as they mature in the normal course of business; (d) such Person
\ndoes not intend to, and does not believe that it will, incur debts or
\nliabilities beyond such Person’s ability to pay as such debts and liabilities
\nmature; and (e) such Person is not engaged in business or a transaction, and is
\nnot about to engage in business or a transaction, for which such Person’s
\nproperty would constitute unreasonably small capital.<\/p>\n
“Subordinated Debt” shall mean Indebtedness of the Borrower which is
\nsubordinated to the Obligations of the Borrower and the Subsidiaries hereunder
\nin right of payment, exercise of remedies or both, on terms and conditions
\nreasonably acceptable to the Agent and the Required Lenders.<\/p>\n
“Subsidiary” of a Person means any corporation association, partnership,
\nlimited liability company, joint venture or other business entity of which more
\nthan 50% of the voting stock membership interests or other equity interests (in
\nthe case of Persons other than corporations), is owned or controlled directly or
\nindirectly by the Person, or one or more of the Subsidiaries of the Person, or a
\ncombination thereof. Unless the context otherwise clearly requires, references
\nherein to a “Subsidiary” refer to a Subsidiary of the Borrower.<\/p>\n
“Surety Instruments” means all letters of credit (including standby and
\ncommercial), banker’s acceptances, bank guaranties, shipside bonds, surety bonds
\nand similar instruments.<\/p>\n
“Swap Contract” means any agreement (including any master agreement and
\nany agreement, whether or not in writing, relating to any single transaction)
\nthat is an interest rate swap agreement, basis swap, forward rate agreement,
\ncommodity swap, commodity option, equity or equity index swap or option, bond
\noption, interest rate<\/p>\n
-18-<\/p>\n
25
\noption, forward foreign exchange agreement, rate cap, collar or floor agreement,
\ncurrency swap agreement, cross-currency rate swap agreement, swaption, currency
\noption or any other, similar agreement (including any option to enter into any
\nof the foregoing).<\/p>\n
“Taxes” means any and all present or future taxes, levies, imposts,
\ndeductions, charges or withholdings, and all liabilities with respect thereto,
\nexcluding, in the case of each Lender and the Agent, such taxes (including
\nincome taxes or franchise taxes) as are imposed on or measured by each Lender’s
\nnet income by the jurisdiction (or any political subdivision thereof) under the
\nlaws of which such Lender or the Agent, as the case may be, is organized or
\nmaintains a lending office.<\/p>\n
“Telerate Page 3750” means the display designated as “Page 3750” on the
\nTelerate Service (or other such page as may replace Page 3750 on that service or
\nsuch other service as may be nominated by the British Bankers’ Association as
\nthe information vendor for the purpose of displaying British Bankers’
\nAssociation Interest Settlement Rates for U.S. Dollar deposits).<\/p>\n
“Type” has the meaning specified in the definition of “Loan.”<\/p>\n
“UCC” means the Uniform Commercial Code as in effect in the State of New
\nYork.<\/p>\n
“Unfunded Pension Liability” means the excess of a Plan’s benefit
\nliabilities under Section 4001(a)(16) of ERISA, over the current value of that
\nPension Plan’s assets, determined in accordance with the assumptions used for
\nfunding the Pension Plan pursuant to Section 412 of the Code for the applicable
\nplan year.<\/p>\n
“United States” and “U.S.” each means the United States of America.<\/p>\n
“Warrants” shall mean, the warrants for Common Stock, $0.01 par value,
\nof the Borrower, substantially in the form of Exhibit F, to be delivered to
\nAgent for the benefit of the Lenders in proportion to their respective Pro Rata
\nShares, in three series, for 75,000 shares, 225,000 shares and 450,000 shares,
\nrespectively.<\/p>\n
“Wholly-Owned Subsidiary” means any corporation in which (other than
\ndirectors’ qualifying shares required by law) 100% of the capital stock of each
\nclass having ordinary voting power, and 100% of the capital stock of every other
\nclass, in each case, at the time as of which any determination is being made, is
\nowned, beneficially and of record, by the Borrower, or by one or more of the
\nother Wholly-Owned Subsidiaries, or both.<\/p>\n
-19-<\/p>\n
26
\n1.2 OTHER INTERPRETIVE PROVISIONS<\/p>\n
(a) The meanings of defined terms are equally applicable to the singular
\nand plural forms of the defined terms.<\/p>\n
(b) The words “hereof,” “herein,” “hereunder” and similar words refer to
\nthis Agreement as a whole and not to any particular provision of this Agreement;
\nand subsection, Section, Schedule and Exhibit references are to this Agreement
\nunless otherwise specified.<\/p>\n
(c) (i) The term “documents” includes any and all instruments,
\ndocuments, agreements, certificates, indentures, notices and other writings,
\nhowever evidenced.<\/p>\n
(ii) The term “including” is not limiting and means “including
\nwithout limitation.”<\/p>\n
(iii) In the computation of periods of time from a specified date
\nto a later specified date, the word “from” means “from and including”; the words
\n“to” and “until” each mean “to but excluding,” and the word “through” means “to
\nand including.”<\/p>\n
(iv) The term “property” includes any kind of property or asset,
\nreal, personal or mixed, tangible or intangible.<\/p>\n
(d) Unless otherwise expressly provided herein, (i) references to
\nagreements (including this Agreement) and other contractual instruments shall be
\ndeemed to include all subsequent amendments and other modifications thereto, but
\nonly to the extent such amendments and other modifications are not prohibited by
\nthe terms of any Loan Document, and (ii) references to any statute or regulation
\nare to be construed as including all statutory and regulatory provisions
\nconsolidating, amending, replacing, supplementing or interpreting the statute or
\nregulation.<\/p>\n
(e) The captions and headings of this Agreement are for convenience of
\nreference only and shall not affect the interpretation of this Agreement.<\/p>\n
(f) This Agreement and other Loan Documents may use several different
\nlimitations, tests or measurements to regulate the same or similar matters. All
\nsuch limitations, tests and measurements are cumulative and shall each be
\nperformed in accordance with their terms.<\/p>\n
(g) This Agreement and the other Loan Documents are the result of
\nnegotiations among and have been reviewed by counsel to the Agent, the Borrower<\/p>\n
-20-<\/p>\n
27
\nand the other parties, and are the products of all parties. Accordingly, they
\nshall not be construed against the Lenders or the Agent merely because of the
\nAgent’s or Lenders’ involvement in their preparation.<\/p>\n
(h) Each reference hereunder to Subsidiaries is effective at such time
\nand to the extent that the Borrower has existing Subsidiaries (as defined
\nherein).<\/p>\n
1.3 ACCOUNTING PRINCIPLES<\/p>\n
(a) Unless the context otherwise clearly requires, all accounting terms
\nnot expressly defined herein shall be construed, and all financial computations
\nrequired under this Agreement shall be made, in accordance with GAAP,
\nconsistently applied.<\/p>\n
(b) References herein to “fiscal year” and “fiscal quarter” refer to
\nsuch fiscal periods of the Borrower.<\/p>\n
(c) In the event that GAAP changes during the term of this Agreement
\nsuch that the covenants contained in Section 7.14 would then be calculated in a
\ndifferent manner or with different components or with components which are
\ncalculated differently, (i) the parties hereto agree to enter into negotiations
\nwith respect to amendments to this Agreement to conform those covenants as
\ncriteria for evaluating the Borrower’s and its Subsidiaries’ financial condition
\nto substantially the same criteria as were effective prior to such change in
\nGAAP, and (ii) the Borrower shall be deemed to be in compliance with the
\naffected covenants contained in Section 7.14 during the 60 days following any
\nchange in GAAP if and to the extent that the Borrower would have been in
\ncompliance therewith under GAAP as in effect immediately before such change;
\nprovided, however, that this paragraph shall not be deemed to require the
\nBorrower, the Agent or the Lenders to agree to modify any provision of this
\nAgreement or any of the other Loan Documents to reflect any such change to GAAP
\nand, if, after such 60 days, the parties, in their sole discretion, fail to
\nreach agreement on such modifications, the terms of this Agreement will remain
\nunchanged and the compliance by the Borrower with the covenants contained in
\nSection 7.14 will be calculated in accordance with GAAP as in effect immediately
\nbefore such change.<\/p>\n
ARTICLE II
\n THE CREDIT<\/p>\n
2.1 AMOUNTS AND TERMS OF COMMITMENT<\/p>\n
Each Lender severally agrees, on the terms and conditions set forth
\nherein, to make a single loan to the Borrower (each such loan, a “Loan”) on the
\nClosing Date in <\/p>\n
-21-<\/p>\n
28
\nan amount not to exceed such Lender’s Pro Rata Share of the Commitment. Amounts
\nborrowed hereunder which are repaid or prepaid by the Borrower may not be
\nreborrowed.<\/p>\n
2.2 LOAN ACCOUNTS<\/p>\n
(a) The Loan made by each Lender shall be evidenced by one or more loan
\naccounts or records maintained by such Lender in the ordinary course of
\nbusiness. The loan accounts or records maintained by the Agent and each Lender
\nshall be conclusive absent manifest error of the amount of the Loans made by the
\nLenders to the Borrower and the interest and payments thereon. Any failure so to
\nrecord or any error in doing so shall not, however, limit or otherwise affect
\nthe obligation of the Borrower hereunder to pay any amount owing with respect to
\nthe Loans.<\/p>\n
(b) Upon the request of any Lender made through the Agent, the Loans
\nmade by such Lender may be evidenced by one or more Notes, instead of loan
\naccounts. Each such Lender shall endorse on the schedules annexed to its Note(s)
\nthe date, amount and maturity of the Loan made by it and the amount of each
\npayment of principal made by the Borrower with respect thereto. Each such Lender
\nis irrevocably authorized by the Borrower to endorse its Note(s) and each
\nLender’s record shall be conclusive absent manifest error; provided, however,
\nthat the failure of a Lender to make, or an error in making, a notation thereon
\nwith respect to any Loan shall not limit or otherwise affect the obligations of
\nthe Borrower hereunder or under any such Note to such Lender.<\/p>\n
2.3 FUNDING OF LOANS<\/p>\n
(a) Each Lender will make the amount of its Pro Rata Share of the
\nCommitment available to the Agent for the account of the Borrower at the Agent’s
\nPayment Office by 1:00 p.m. (New York City time) on the Closing Date in funds
\nimmediately available to the Agent. The proceeds of all such Loans will then be
\nmade available to the Borrower by the Agent by wire transfer in accordance with
\nwritten instructions provided to the Agent by the Borrower of like funds as
\nreceived by the Agent.<\/p>\n
(b) During the first three (3) Business Days following the Closing Date,
\nall Loans shall be Base Rate Loans.<\/p>\n
2.4 CONVERSION AND CONTINUATION ELECTIONS<\/p>\n
(a) The Borrower may, upon irrevocable written notice to the Agent in
\naccordance with subsection 2.4(b):<\/p>\n
-22-<\/p>\n
29
\n (i) elect, as of any Business Day, in the case of Base Rate
\nLoans, or as of the last day of the applicable Interest Period, in the case of
\nany other Type of Loans, to convert any such Loans (or any part thereof in an
\namount not less than $1,000,000, or that is in an integral multiple of $500,000
\nin excess thereof) into Loans of any other Type; or<\/p>\n
(ii) elect, as of the last day of the applicable Interest Period,
\nto continue as LIBOR Rate Loans any Loans having Interest Periods expiring on
\nsuch day (or any part thereof in an amount not less than $1,000,000, or that is
\nin an integral multiple of $500,000 in excess thereof).<\/p>\n
(b) The Borrower shall deliver a Notice of Conversion\/Continuation to be
\nreceived by the Agent not later than 1:00 p.m. (New York City time) at least (i)
\nthree Business Days in advance of the Conversion\/Continuation Date, if the Loans
\nare to be converted into or continued as LIBOR Rate Loans; and (ii) one Business
\nDay in advance of the Conversion\/Continuation Date, if the Loans are to be
\nconverted into Base Rate Loans, specifying:<\/p>\n
(A) the proposed Conversion\/Continuation Date;<\/p>\n
(B) the aggregate amount of Loans to be converted or renewed;<\/p>\n
(C) the Type of Loans resulting from the proposed conversion or
\ncontinuation; and<\/p>\n
(D) other than in the case of conversions into Base Rate Loans,
\nthe duration of the requested Interest Period.<\/p>\n
(c) If upon the expiration of any Interest Period applicable to LIBOR
\nRate Loans, the Borrower has failed to select timely a new Interest Period to be
\napplicable to such LIBOR Rate Loans, or if any Event of Default then exists, the
\nBorrower shall be deemed to have elected to convert such LIBOR Rate Loans into
\nBase Rate Loans effective as of the expiration date of such Interest Period.<\/p>\n
(d) The Agent will promptly notify each Lender of its receipt of a
\nNotice of Conversion\/Continuation, or, if no timely notice is provided by the
\nBorrower, the Agent will promptly notify each Lender of the details of any
\nautomatic conversion. All conversions and continuations shall be made ratably
\naccording to the respective outstanding principal amounts of the Loans with
\nrespect to which the notice was given held by each Lender.<\/p>\n
-23-<\/p>\n
30
\n (e) Unless the Required Lenders otherwise agree, during the existence of
\nan Event of Default, the Borrower may not elect to have a Loan converted into or
\ncontinued as a LIBOR Rate Loan.<\/p>\n
(f) After giving effect to any conversion or continuation of Loans,
\nthere may not be more than three different Interest Periods in effect.<\/p>\n
2.5 OPTIONAL PREPAYMENTS<\/p>\n
Subject to Section 3.4, the Borrower may, at any time or from time to
\ntime, upon not less than one Business Day’s (in the case of Base Rate Loans) or
\nthree Business Days’ (in the case of LIBOR Rate Loans) notice to the Agent
\n(which in either case shall be irrevocable one Business Day prior to the
\nproposed prepayment date), ratably prepay Loans in whole or in part, in minimum
\namounts of $1,000,000 or any multiple of $500,000 in excess thereof. Such notice
\nof prepayment shall specify the date and amount of such prepayment and the
\nType(s) of Loans to be prepaid. The Agent will promptly notify each Lender of
\nits receipt of any such notice, and of such Lender’s Pro Rata Share of such
\nprepayment. If such notice is given by the Borrower and not rescinded in writing
\nby the Borrower more than one Business Day prior to the proposed prepayment
\ndate, the Borrower shall make such prepayment and the payment amount specified
\nin such notice shall be due and payable on the date specified therein, together
\nwith accrued interest to each such date on the amount prepaid and any amounts
\nrequired pursuant to Section 3.4.<\/p>\n
2.6 MANDATORY PREPAYMENTS OF LOANS<\/p>\n
(a) Asset Dispositions. If the Borrower or any Subsidiary shall at any
\ntime or from time to time make or agree to make a Disposition then (i) the
\nBorrower shall promptly notify the Agent of such proposed Disposition (including
\nthe amount of the estimated Net Proceeds to be received by the Borrower or such
\nSubsidiary in respect thereof) and (ii) promptly upon, and in no event later
\nthan 90 days after, receipt by the Borrower or the Subsidiary of the Net
\nProceeds of such Disposition, the Borrower shall prepay the Loans in an
\naggregate amount equal to the amount of such Net Proceeds; provided, however,
\nthat no such prepayment shall be required to the extent, in each case, such Net
\nProceeds are used within 90 days of receipt thereof to purchase replacement
\nassets; provided further, that such notice and prepayment shall be required only
\nif (A) such Net Proceeds exceed $500,000 or (B) the aggregate of all Net
\nProceeds theretofore received by the Borrower and not reinvested or used to make
\na prepayment hereunder exceeds $1,000,000 in any fiscal year.<\/p>\n
(b) Event of Loss. If the Borrower or any Subsidiary shall at any time
\nor from time to time suffer an Event of Loss, then (i) the Borrower shall
\npromptly notify <\/p>\n
-24-<\/p>\n
31
\nthe Agent of such Event of Loss (including the amount of the estimated Net
\nProceeds to be received by the Borrower or such Subsidiary in respect thereof)
\nand (ii) promptly upon, and in no event later than two (2) Business Days after,
\nreceipt by the Borrower or the Subsidiary of the Net Proceeds of such Event of
\nLoss, the Borrower shall, to the extent not inconsistent with any lease to which
\nthe Borrower is bound, either (A) prepay the Loans in an aggregate amount equal
\nto the amount of such Net Proceeds or (B) deposit an aggregate amount equal to
\nthe amount of such Net Proceeds into a blocked interest bearing account
\nmaintained with the Agent pending release for usage by the Borrower in a manner,
\nand during the time, specified in the proviso below; provided, however, that no
\nsuch prepayment shall be required to the extent, in each case, such Net Proceeds
\nare used within 90 days, or provision for use within 180 days is made, of
\nreceipt thereof to repair, replace or restore the assets, if any, relating to
\nsuch Event of Loss; provided further, that such notice and prepayment shall be
\nrequired only if (i) such Net Proceeds exceed $500,000 or (ii) the aggregate of
\nall Net Proceeds theretofore received by the Borrower and not reinvested or used
\nto make a prepayment hereunder exceeds $1,000,000 in any fiscal year.<\/p>\n
(c) Equity or Debt Issuance. If the Borrower shall issue new common or
\npreferred equity, or shall incur additional Indebtedness (other than
\nIndebtedness permitted under Sections 7.5(b), (c), (e) or (f)), the Borrower
\nshall promptly notify the Agent of the estimated Net Issuance Proceeds of such
\nissuance or incurrence to be received by the Borrower in respect thereof.
\nPromptly upon, and in no event later than 3 days after, receipt by the Borrower
\nof Net Issuance Proceeds of such issuance or incurrence, the Borrower shall
\nprepay the Loans in an aggregate amount equal to 50% of the amount of such Net
\nIssuance Proceeds.<\/p>\n
(d) General. Any prepayments pursuant to this Section 2.6 shall be
\napplied first to any Base Rate Loans then outstanding and then to LIBOR Rate
\nLoans with the shortest Interest Periods remaining; provided, however, that if
\nthe amount of Base Rate Loans then outstanding is not sufficient to satisfy the
\nentire prepayment requirement, the Borrower may, at its option, place any
\namounts which it would otherwise be required to use to prepay LIBOR Rate Loans
\non a day other than the last day of the Interest Period therefor in an
\ninterest-bearing account pledged to the Agent for the benefit of the Lenders
\nuntil the end of such Interest Period at which time such pledged amounts will be
\napplied to prepay such LIBOR Rate Loans. The Borrower shall pay, together with
\neach prepayment under this Section 2.6, accrued interest on the amount prepaid
\nand any amounts required pursuant to Section 3.4.<\/p>\n
2.7 REPAYMENT<\/p>\n
The Borrower shall repay the Loans in full, together with all accrued
\nand unpaid interest thereon, on the Maturity Date.<\/p>\n
-25-<\/p>\n
32
\n2.8 INTEREST<\/p>\n
(a) Each Loan shall bear interest on the outstanding principal amount
\nthereof from the Closing Date at a rate per annum equal to the LIBOR Rate or the
\nBase Rate, as the case may be (and subject to the Borrower’s right to convert to
\nother Types of Loans under Section 2.4), plus the Interest Margin.<\/p>\n
(b) Interest on each Loan shall be paid in arrears on each Interest
\nPayment Date. Interest shall also be paid on the date of any prepayment of Loans
\nunder Section 2.5 or 2.6 for the portion of the Loans so prepaid and upon
\npayment (including prepayment) in full thereof and, during the existence of any
\nEvent of Default, interest shall be paid on demand of the Agent at the request
\nor with the consent of the Required Lenders.<\/p>\n
(c) Notwithstanding subsection (a) of this Section, while any Event of
\nDefault exists or after acceleration, the Borrower shall pay interest (after as
\nwell as before entry of judgment thereon to the extent permitted by law) on the
\nprincipal amount of all outstanding Loans, at a rate per annum which is
\ndetermined by adding 2% per annum to the Interest Margin then in effect for such
\nLoans; provided, however, that, on and after the expiration of any Interest
\nPeriod applicable to any LIBOR Rate Loan outstanding on the date of occurrence
\nof such Event of Default or acceleration, the principal amount of such Loan
\nshall, during the continuation of such Event of Default or after acceleration,
\nbear interest at a rate per annum equal to the Base Rate plus 3.5% (or, if later
\nthan six (6) months after the disbursement of Loans hereunder, plus 4%).<\/p>\n
(d) Anything herein to the contrary notwithstanding, the obligations of
\nthe Borrower to any Lender hereunder shall be subject to the limitation that
\npayments of interest shall not be required, for any period for which interest is
\ncomputed hereunder, to the extent (but only to the extent) that contracting for
\nor receiving such payment by such Lender would be contrary to the provisions of
\nany law applicable to such Lender limiting the highest rate of interest that may
\nbe lawfully contracted for, charged or received by such Lender, and in such
\nevent the Borrower shall pay such Lender interest at the highest rate permitted
\nby applicable law.<\/p>\n
2.9 FEES<\/p>\n
(a) Arrangement, Agency Fees. The Borrower shall pay a syndication and
\nunderwriting fee to the Arranger and to Deutsche Bank, for their respective
\naccounts, and shall pay an agency fee to the Agent for the Agent’s own account,
\nas required by the Commitment Letter.<\/p>\n
-26-<\/p>\n
33
\n2.10 COMPUTATION OF FEES AND INTEREST<\/p>\n
(a) All computations of interest for Base Rate Loans when the Base Rate
\nis determined by Deutsche Bank’s “prime lending rate” shall be made on the basis
\nof a year of 365 or 366 days, as the case may be, and actual days elapsed. All
\nother computations of fees and interest shall be made on the basis of a 360-day
\nyear and actual days elapsed (which results in more interest being paid than if
\ncomputed on the basis of a 365-day year). Interest and fees shall accrue during
\neach period during which interest or such fees are computed from the first day
\nthereof to the last day thereof.<\/p>\n
(b) Each determination of an interest rate by the Agent shall be
\nconclusive and binding on the Borrower and the Lenders in the absence of
\nmanifest error. The Agent will, at the request of the Borrower or any Lender,
\ndeliver to the Borrower or the Lender, as the case may be, a statement showing
\nthe quotations used by the Agent in determining any interest rate and the
\nresulting interest rate.<\/p>\n
(c) The Reference Bank shall use its best efforts to furnish quotations
\nof rates to the Agent as contemplated hereby.<\/p>\n
2.11 PAYMENTS BY THE BORROWER<\/p>\n
(a) All payments to be made by the Borrower shall be made without
\nset-off, recoupment or counterclaim. Except as otherwise expressly provided
\nherein, all payments by the Borrower shall be made to the Agent for the account
\nof the Lenders at the Agent’s Payment Office, and shall be made in dollars and
\nin immediately available funds, no later than 2:00 p.m. (New York City time) on
\nthe date specified herein. The Agent will promptly distribute to each Lender its
\nPro Rata Share (or other applicable share as expressly provided herein) of such
\npayment in like funds as received. Any payment received by the Agent later than
\n2:00 p.m. (New York City time) shall be deemed to have been received on the
\nfollowing Business Day and any applicable interest or fee shall continue to
\naccrue.<\/p>\n
(b) Subject to the provisions set forth in the definition of “Interest
\nPeriod” herein, whenever any payment is due on a day other than a Business Day,
\nsuch payment shall be made on the following Business Day, and such extension of
\ntime shall in such case be included in the computation of interest or fees, as
\nthe case may be.<\/p>\n
(c) Unless the Agent receives notice from the Borrower prior to the date
\non which any payment is due to the Lenders that the Borrower will not make such
\npayment in full as and when required, the Agent may assume that the Borrower has<\/p>\n
-27-<\/p>\n
34
\nmade such payment in full to the Agent on such date in immediately available
\nfunds and the Agent may (but shall not be so required), in reliance upon such
\nassumption, distribute to each Lender on such due date an amount equal to the
\namount then due such Lender. If and to the extent the Borrower has not made such
\npayment in full to the Agent, each Lender shall repay to the Agent on demand
\nsuch amount distributed to such Lender, together with interest thereon at the
\nFederal Funds Rate for each day from the date such amount is distributed to such
\nLender until the date repaid.<\/p>\n
2.12 PAYMENTS BY THE LENDERS TO THE AGENT<\/p>\n
(a) Unless the Agent receives notice from a Lender on or prior to the
\nClosing Date that such Lender will not make available on the Closing Date to the
\nAgent for the account of the Borrower the amount of that Lender’s Pro Rata Share
\nof the Commitment, the Agent may assume that each Lender has made such amount
\navailable to the Agent in immediately available funds on the Closing Date and
\nthe Agent may (but shall not be so required), in reliance upon such assumption,
\nmake available to the Borrower on such date a corresponding amount. If and to
\nthe extent any Lender shall not have made its full amount available to the Agent
\nin immediately available funds and the Agent in such circumstances has made
\navailable to the Borrower such amount, that Lender shall on the Business Day
\nfollowing the Closing Date make such amount available to the Agent, together
\nwith interest at the Federal Funds Rate for each day during such period. A
\nnotice of the Agent submitted to any Lender with respect to amounts owing under
\nthis subsection (a) shall be conclusive, absent manifest error. If such amount
\nis so made available, such payment to the Agent shall constitute such Lender’s
\nLoan on the Closing Date for all purposes of this Agreement.<\/p>\n
(b) The failure of any Lender to make any Loan on the Closing Date shall
\nnot relieve any other Lender of any obligation hereunder to make a Loan on the
\nClosing Date, but no Lender shall be responsible for the failure of any other
\nLender to make the Loan to be made by such other Lender on the Closing Date.<\/p>\n
2.13 SHARING OF PAYMENTS, ETC.<\/p>\n
If, other than as expressly provided elsewhere herein, any Lender shall
\nobtain on account of the Loans made by it any payment (whether voluntary,
\ninvoluntary, through the exercise of any right of set-off, or otherwise) in
\nexcess of its Pro Rata Share, such Lender shall immediately (a) notify the Agent
\nof such fact, and (b) purchase from the other Lenders such participations in the
\nLoans made by them as shall be necessary to cause such purchasing Lender to
\nshare the excess payment pro rata with each of them; provided, however, that if
\nall or any portion of such excess payment is thereafter recovered from the
\npurchasing Lender, such purchase shall to <\/p>\n
-28-<\/p>\n
35
\nthat extent be rescinded and each other Lender shall repay to the purchasing
\nLender the purchase price paid therefor, together with an amount equal to such
\npaying Lender’s ratable share (according to the proportion of (i) the amount of
\nsuch paying Lender’s required repayment to (ii) the total amount so recovered
\nfrom the purchasing Lender) of any interest or other amount paid or payable by
\nthe purchasing Lender in respect of the total amount so recovered. The Borrower
\nagrees that any Lender so purchasing a participation from another Lender may, to
\nthe fullest extent permitted by law, exercise all its rights of payment
\n(including the right of set-off, but subject to Section 10.10) with respect to
\nsuch participation as fully as if such Lender were the direct creditor of the
\nBorrower in the amount of such participation. The Agent will keep records (which
\nshall be conclusive and binding in the absence of manifest error) of
\nparticipations purchased under this Section and will in each case notify the
\nLenders following any such purchases or repayments.<\/p>\n
2.14 SECURITY<\/p>\n
All obligations of the Borrower and the Subsidiaries under this
\nAgreement, the Notes and all other Loan Documents shall be secured in accordance
\nwith the Collateral Documents.<\/p>\n
ARTICLE III
\n TAXES, YIELD PROTECTION AND ILLEGALITY<\/p>\n
3.1 TAXES<\/p>\n
(a) Any and all payments by the Borrower to each Lender or the Agent
\nunder this Agreement and any other Loan Document shall be made free and clear
\nof, and without deduction or withholding for any Taxes. In addition, the
\nBorrower shall pay all Other Taxes.<\/p>\n
(b) The Borrower agrees to indemnify and hold harmless each Lender and
\nthe Agent for the full amount of Taxes or Other Taxes (including any Taxes or
\nOther Taxes imposed by any jurisdiction on amounts payable under this Section)
\npaid by the Lender or the Agent and any liability (including penalties,
\ninterest, additions to tax and expenses) arising therefrom or with respect
\nthereto, whether or not such Taxes or Other Taxes were correctly or legally
\nasserted. Payment under this indemnification shall be made within 30 days after
\nthe date the Lender or the Agent makes written demand therefor.<\/p>\n
(c) If the Borrower shall be required by law to deduct or withhold any
\nTaxes or Other Taxes from or in respect of any sum payable hereunder to any
\nLender or the Agent, then:<\/p>\n
-29-<\/p>\n
36
\n (i) the sum payable shall be increased as necessary so that after
\nmaking all required deductions and withholdings (including deductions and
\nwithholdings applicable to additional sums payable under this Section) such
\nLender or the Agent, as the case may be, receives an amount equal to the sum it
\nwould have received had no such deductions or withholdings been made;<\/p>\n
(ii) the Borrower shall make such deductions and withholdings;<\/p>\n
(iii) the Borrower shall pay the full amount deducted or withheld
\nto the relevant taxing authority or other authority in accordance with
\napplicable law; and<\/p>\n
(iv) the Borrower shall also pay to each Lender or the Agent for
\nthe account of such Lender, at the time interest is paid, all additional amounts
\nwhich the respective Lender specifies as necessary to preserve the after-tax
\nyield the Lender would have received if such Taxes or Other Taxes had not been
\nimposed.<\/p>\n
(d) Within 30 days after the date of any payment by the Borrower of
\nTaxes or Other Taxes, the Borrower shall furnish the Agent the original or a
\ncertified copy of a receipt evidencing payment thereof, or other evidence of
\npayment satisfactory to the Agent.<\/p>\n
(e) If the Borrower is required to pay additional amounts to any Lender
\nor the Agent pursuant to subsection (c) of this Section, then such Lender shall
\nuse reasonable efforts (consistent with legal and regulatory restrictions) to
\nchange the jurisdiction of its Lending Office so as to eliminate any such
\nadditional payment by the Borrower which may thereafter accrue, if such change
\nin the judgment of such Lender is not otherwise disadvantageous to such Lender.<\/p>\n
3.2 ILLEGALITY<\/p>\n
(a) If any Lender reasonably determines that the introduction of any
\nRequirement of Law, or any change in any Requirement of Law, or in the
\ninterpretation or administration of any Requirement of Law, has made it
\nunlawful, or that any central bank or other Governmental Authority has asserted
\nthat it is unlawful, for any Lender or its applicable Lending Office to make
\nLIBOR Rate Loans, then, on notice thereof by the Lender to the Borrower through
\nthe Agent, any obligation of that Lender to make LIBOR Rate Loans shall be
\nsuspended until the Lender notifies the Agent and the Borrower that the
\ncircumstances giving rise to such determination no longer exist.<\/p>\n
(b) If a Lender reasonably determines that it is unlawful to maintain
\nany LIBOR Rate Loan, the Borrower shall, upon its receipt of notice of such fact
\nand <\/p>\n
-30-<\/p>\n
37
\ndemand from such Lender (with a copy to the Agent), prepay in full such LIBOR
\nRate Loans of that Lender then outstanding, together with interest accrued
\nthereon and amounts required under Section 3.4, either on the last day of the
\nInterest Period thereof, if the Lender may lawfully continue to maintain such
\nLIBOR Rate Loans to such day, or immediately, if the Lender may not lawfully
\ncontinue to maintain such LIBOR Rate Loan. If the Borrower is required to so
\nprepay any LIBOR Rate Loan, then concurrently with such prepayment, the Borrower
\nshall borrow from the affected Lender, in the amount of such repayment, a Base
\nRate Loan.<\/p>\n
(c) If the obligation of any Lender to make or maintain LIBOR Rate Loans
\nhas been so terminated or suspended, the Borrower may elect, by giving notice to
\nthe Lender through the Agent that all Loans which would otherwise be made by the
\nLender as LIBOR Rate Loans shall be instead Base Rate Loans.<\/p>\n
(d) Before giving any notice to the Agent under this Section, the
\naffected Lender shall designate a different Lending Office with respect to its
\nLIBOR Rate Loans if such designation will avoid the need for giving such notice
\nor making such demand and will not, in the judgment of the Lender, be illegal or
\notherwise disadvantageous to the Lender.<\/p>\n
3.3 INCREASED COSTS AND REDUCTION OF RETURN<\/p>\n
(a) If any Lender reasonably determines that, due to either (i) the
\nintroduction of or any change in or in the interpretation of any law or
\nregulation or (ii) the compliance by that Lender with any guideline or request
\nfrom any central bank or other Governmental Authority (whether or not having the
\nforce of law), there shall be any increase in the cost to such Lender of
\nagreeing to make or making, funding or maintaining any LIBOR Rate Loans, then
\nthe Borrower shall be liable for, and shall from time to time, upon demand (with
\na copy of such demand to be sent to the Agent), pay to the Agent for the account
\nof such Lender, additional amounts as are sufficient to compensate such Lender
\nfor such increased costs.<\/p>\n
(b) If any Lender shall have reasonably determined that (i) the
\nintroduction of any Capital Adequacy Regulation, (ii) any change in any Capital
\nAdequacy Regulation, (iii) any change in the interpretation or administration of
\nany Capital Adequacy Regulation by any central bank or other Governmental
\nAuthority charged with the interpretation or administration thereof, or (iv)
\ncompliance by the Lender (or its Lending Office) or any corporation controlling
\nthe Lender with any Capital Adequacy Regulation, affects or would affect the
\namount of capital required or expected to be maintained by the Lender or any
\ncorporation controlling the Lender and (taking into consideration such Lender’s
\nor such corporation’s policies with respect to capital adequacy and such
\nLender’s desired return on capital) reasonably <\/p>\n
-31-<\/p>\n
38
\ndetermines that the amount of such capital is increased as a consequence of its
\nCommitment, loans, credits or obligations under this Agreement, then, upon
\ndemand of such Lender to the Borrower through the Agent, the Borrower shall pay
\nto the Lender, from time to time as specified by the Lender, additional amounts
\nsufficient to compensate the Lender for such increase.<\/p>\n
3.4 FUNDING LOSSES<\/p>\n
The Borrower shall reimburse each Lender and hold each Lender harmless
\nfrom any loss (excluding consequential damages consisting of lost profits) or
\nexpense which the Lender may sustain or incur as a consequence of:<\/p>\n
(a) the failure of the Borrower to make on a timely basis any payment of
\nprincipal of any LIBOR Rate Loan;<\/p>\n
(b) the failure of the Borrower to borrow the Loans on the Closing Date,
\nor to continue or convert a Loan after the Borrower has given (or is deemed to
\nhave given) a Notice of Conversion\/Continuation;<\/p>\n
(c) the failure of the Borrower to make any prepayment in accordance
\nwith any notice delivered under Section 2.5;<\/p>\n
(d) the prepayment (including pursuant to Sections 2.5 and 2.6) or other
\npayment (including after acceleration thereof) of a LIBOR Rate Loan on a day
\nthat is not the last day of the relevant Interest Period; or<\/p>\n
(e) the automatic conversion under Section 2.4 of any LIBOR Rate Loan to
\na Base Rate Loan on a day that is not the last day of the relevant Interest
\nPeriod;<\/p>\n
including any such loss or expense arising from the liquidation or reemployment
\nof funds obtained by it to maintain its LIBOR Rate Loans or from fees payable to
\nterminate the deposits from which such funds were obtained. For purposes of
\ncalculating amounts payable by the Borrower to the Lenders under this Section
\nand under subsection 3.3(a), each LIBOR Rate Loan made by a Lender (and each
\nrelated reserve, special deposit or similar requirement) shall be conclusively
\ndeemed to have been funded at the LIBOR used in determining the LIBOR Rate for
\nsuch LIBOR Rate Loan by a matching deposit or other borrowing in the interbank
\neurodollar market for a comparable amount and for a comparable period, whether
\nor not such LIBOR Rate Loan is in fact so funded.<\/p>\n
-32-<\/p>\n
39
\n3.5 INABILITY TO DETERMINE RATES<\/p>\n
If the Agent reasonably determines that for any reason adequate and
\nreasonable means do not exist for determining the LIBOR Rate for any requested
\nInterest Period with respect to a proposed LIBOR Rate Loan, or that the LIBOR
\nRate applicable pursuant to subsection 2.8(a) for any requested Interest Period
\nwith respect to a proposed LIBOR Rate Loan does not adequately and fairly
\nreflect the cost to the of funding such Loan, the Agent will promptly so notify
\nthe Borrower and each Lender. Thereafter, the obligation of the Lenders to make
\nor maintain LIBOR Rate Loans hereunder shall be suspended until the Agent
\nrevokes such notice in writing, which it shall do promptly when possible. Upon
\nreceipt of such notice, the Borrower may revoke any Notice of
\nConversion\/Continuation then submitted by it. If the Borrower does not revoke
\nsuch Notice, the Lenders shall make, convert or continue the Loans, as proposed
\nby the Borrower, in the amount specified in the applicable notice submitted by
\nthe Borrower, but such Loans shall be made, converted or continued as Base Rate
\nLoans instead of LIBOR Rate Loans.<\/p>\n
3.6 CERTIFICATES OF LENDERS<\/p>\n
Any Lender claiming reimbursement or compensation under this Article III
\nshall deliver to the Borrower (with a copy to the Agent) a certificate setting
\nforth in reasonable detail the amount payable to the Lender hereunder and such
\ncertificate shall be conclusive and binding on the Borrower in the absence of
\nmanifest error.<\/p>\n
3.7 SURVIVAL<\/p>\n
The agreements and obligations of the Borrower in this Article III shall
\nsurvive the payment of all other Obligations.<\/p>\n
ARTICLE IV
\n CONDITIONS PRECEDENT<\/p>\n
4.1 CONDITIONS OF LOANS<\/p>\n
The obligation of each Lender to make its Loan hereunder is subject to
\nthe condition that the Agent has received on or before the Closing Date all of
\nthe following, in form and substance satisfactory to the Agent and each Lender,
\nand in sufficient copies for each Lender:<\/p>\n
(a) Credit Agreement and Notes. This Agreement, the Notes and the
\nWarrants executed by each party thereto;<\/p>\n
(b) Resolutions; Incumbency.<\/p>\n
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40
\n (i) Copies of the resolutions of the board of directors of the
\nBorrower and each Subsidiary that may become party to a Loan Document
\nauthorizing the transactions contemplated hereby, certified as of the Closing
\nDate by the Secretary or an Assistant Secretary of such Person; and<\/p>\n
(ii) A certificate of the Secretary or Assistant Secretary or an
\nexecutive officer of the Borrower, and each Subsidiary that may become party to
\na Loan Document certifying the names and true signatures of the officers of the
\nBorrower or such Subsidiary authorized to execute, deliver and perform, as
\napplicable, this Agreement, and all other Loan Documents to be delivered by it
\nhereunder;<\/p>\n
(c) Organization Documents; Good Standing. Each of the following
\ndocuments:<\/p>\n
(i) the articles or certificate of incorporation and the bylaws
\nof the Borrower and each Subsidiary party to any Loan Document as in effect on
\nthe Closing Date, certified by the Secretary or Assistant Secretary of the
\nBorrower or such Subsidiary as of the Closing Date; and<\/p>\n
(ii) a good standing certificate for the Borrower and each
\nSubsidiary party to any Loan Document from the Secretary of State (or similar,
\napplicable Governmental Authority) of its state of incorporation and each state
\nwhere the Borrower or such Subsidiary is qualified to do business as a foreign
\ncorporation as of a recent date;<\/p>\n
(d) Legal Opinions. An opinion of Perkins Coie – Seattle, counsel to the
\nBorrower and addressed to the Agent and the Lenders, substantially in the form
\nof Exhibit C;<\/p>\n
(e) Payment of Fees. Evidence of payment by the Borrower of all accrued
\nand unpaid fees, costs and expenses to the extent then due and payable on the
\nClosing Date, together with Attorney Costs of Deutsche Bank to the extent
\ninvoiced prior to or on the Closing Date; including any such costs, fees and
\nexpenses arising under or referenced in Sections 2.9 and 10.4;<\/p>\n
(f) Collateral Documents. The Collateral Documents, executed by the
\nBorrower, in appropriate form for recording, where necessary, together with:<\/p>\n
(i) copies of all UCC-l financing statements filed, registered or
\nrecorded to perfect the security interests of the Agent for the benefit of the
\nLenders, or other evidence satisfactory to the Agent that there has been filed,
\nregistered or <\/p>\n
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41
\nrecorded all financing statements and other filings, registrations and
\nrecordings necessary and advisable to perfect the Liens of the Agent for the
\nbenefit of the Lenders in accordance with applicable law (provided that filings
\nto be made in connection with Intellectual Property Collateral (as defined in
\nthe Security Agreement) shall be made within seven days after the Closing Date);<\/p>\n
(ii) written advice relating to such Lien and judgment searches
\nas the Agent shall have requested, and such termination statements or other
\ndocuments as may be necessary to confirm that the Collateral is subject to no
\nother Liens in favor of any Persons (other than Permitted Liens);<\/p>\n
(iii) funds sufficient to pay any filing or recording tax or fee
\nin connection with any and all UCC-1 financing statements; and<\/p>\n
(iv) evidence that all other actions necessary or, in the
\nreasonable opinion of the Agent or the Lenders, desirable, to perfect and
\nprotect the first priority security interest created by the Collateral Documents
\nand to enhance the Agent’s ability to preserve and protect its interests in and
\naccess to the Collateral, have been taken;<\/p>\n
(g) Insurance Policies. Standard lenders’ payable endorsements with
\nrespect to the insurance policies or other instruments or documents evidencing
\ninsurance coverage on the properties of the Borrower in accordance with
\nSection 6.6;<\/p>\n
(h) Certificate. A certificate signed by a Responsible Officer, dated as
\nof the Closing Date, stating that:<\/p>\n
(i) the representations and warranties contained in Article V are
\ntrue and correct on and as of such date, as though made on and as of such date;<\/p>\n
(ii) no Default or Event of Default exists or would result from
\nmaking the Loans under Article II; and<\/p>\n
(iii) there has occurred since September 30, 1997, no event or
\ncircumstance that has resulted or could reasonably be expected to result in a
\nMaterial Adverse Effect; and<\/p>\n
(i) Other Documents. Such other approvals, opinions, documents or
\nmaterials as the Agent or any Lender may reasonably request.<\/p>\n
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42
\n4.2 CONDITIONS TO CONTINUATIONS\/CONVERSIONS<\/p>\n
The obligation of each Lender to continue or convert any Loan under
\nSection 2.4 is subject to the satisfaction of the following conditions precedent
\non the relevant Conversion\/Continuation Date:<\/p>\n
(a) Notice of Conversion\/Continuation. The Agent shall have
\nreceived a Notice of Conversion\/Continuation;<\/p>\n
(b) Continuation of Representations and Warranties. The
\nrepresentations and warranties in Article V shall be true and correct on and as
\nof such Conversion\/Continuation Date with the same effect as if made on and as
\nof such Conversion\/Continuation Date (except to the extent such representations
\nand warranties solely and expressly refer to an earlier date, in which case they
\nshall be true and correct as of such earlier date); and<\/p>\n
(c) No Existing Default. No Default or Event of Default shall
\nexist or shall result from such continuation or conversion.<\/p>\n
Each Notice of Conversion\/Continuation submitted by the Borrower
\nhereunder shall constitute a representation and warranty by the Borrower
\nhereunder, as of the date of each such notice and as of each
\nConversion\/Continuation Date, as applicable, that the conditions in Section 4.2
\nare satisfied.<\/p>\n
ARTICLE V
\n REPRESENTATIONS AND WARRANTIES<\/p>\n
The Borrower represents and warrants to the Agent and each Lender that:<\/p>\n
5.1 CORPORATE EXISTENCE AND POWER<\/p>\n
The Borrower and each of its Subsidiaries:<\/p>\n
(a) is a corporation, partnership, limited liability company or
\nsimilar entity duly organized, validly existing and in good standing under the
\nlaws of the jurisdiction of its incorporation or formation;<\/p>\n
(b) has the power and authority and all governmental licenses,
\nauthorizations, consents and approvals to own its assets, carry on its business
\nand to execute, deliver, and perform its obligations under the Loan Documents;<\/p>\n
(c) is duly qualified as a foreign corporation, partnership,
\nlimited liability company or similar entity and is licensed and in good standing
\nunder the laws <\/p>\n
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43
\nof each jurisdiction where its ownership, lease or operation of property or the
\nconduct of its business requires such qualification or license; and<\/p>\n
(d) is in compliance with all Requirements of Law; except, in
\neach case referred to in clause (c) or clause (d), to the extent that the
\nfailure to do so could not reasonably be expected to have a Material Adverse
\nEffect.<\/p>\n
5.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION<\/p>\n
The execution, delivery and performance by the Borrower and its
\nSubsidiaries of this Agreement and each other Loan Document to which such Person
\nis party, have been duly authorized by all necessary corporate, partnership,
\nlimited liability company or similar entity action, and do not and will not:<\/p>\n
(a) contravene the terms of any of that Person’s Organization
\nDocuments;<\/p>\n
(b) conflict with or result in any breach or contravention of, or
\nthe creation of any Lien under, any document evidencing any Contractual
\nObligation to which such Person is a party or any order, injunction, writ or
\ndecree of any Governmental Authority to which such Person or its property is
\nsubject; or<\/p>\n
(c) violate any Requirement of Law.<\/p>\n
5.3 GOVERNMENTAL AUTHORIZATION<\/p>\n
No approval, consent, exemption, authorization, or other action by, or
\nnotice to, or filing with, any Governmental Authority (except for recordings or
\nfilings in connection with the Liens granted to the Agent under the Collateral
\nDocuments and except for state and federal securities laws filings in connection
\nwith the issuance of the Warrants that may be required) is necessary or required
\nin connection with the execution, delivery or performance by, or enforcement
\nagainst, the Borrower or any of its Subsidiaries of the Agreement or any other
\nLoan Document.<\/p>\n
5.4 BINDING EFFECT<\/p>\n
This Agreement and each other Loan Document to which the Borrower or any
\nof its Subsidiaries is a party constitute the legal, valid and binding
\nobligations of the Borrower and any of its Subsidiaries to the extent it is a
\nparty thereto, enforceable against such Person in accordance with their
\nrespective terms, except as enforceability may be limited by applicable
\nbankruptcy, insolvency, or similar laws affecting the enforcement of creditors’
\nrights generally or by equitable principles relating to enforceability.<\/p>\n
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44
\n5.5 LITIGATION<\/p>\n
Except as specifically disclosed in Schedule 5.5, as of the date of this
\nAgreement there are no actions, suits, proceedings, claims or disputes pending,
\nor to the best knowledge of the Borrower, threatened or contemplated, at law, in
\nequity, in arbitration or before any Governmental Authority, against the
\nBorrower, or its Subsidiaries or any of their respective properties which:<\/p>\n
(a) purport to affect or pertain to this Agreement or any other
\nLoan Document, or any of the transactions contemplated hereby or thereby; or<\/p>\n
(b) if determined adversely to the Borrower or its Subsidiaries,
\nwould reasonably be expected to have a Material Adverse Effect.<\/p>\n
No injunction, writ, temporary restraining order or any order of any
\nnature has been issued by any court or other Governmental Authority purporting
\nto enjoin or restrain the execution, delivery or performance of this Agreement
\nor any other Loan Document, or directing that the transactions provided for
\nherein or therein not be consummated as herein or therein provided.<\/p>\n
5.6 NO DEFAULT<\/p>\n
No Default or Event of Default exists or would result from the incurring
\nof any Obligations by the Borrower or from the grant or perfection of the Liens
\nof the Agent and the Lenders on the Collateral. As of the Closing Date, neither
\nthe Borrower nor any Subsidiary is in default under or with respect to any
\nContractual Obligation in any respect which, individually or together with all
\nsuch defaults, could reasonably be expected to have a Material Adverse Effect,
\nor that would, if such default had occurred after the Closing Date, create an
\nEvent of Default under subsection 8.1(e).<\/p>\n
5.7 ERISA COMPLIANCE<\/p>\n
Except as specifically disclosed in Schedule 5.7:<\/p>\n
(a) Each Plan is in compliance in all material respects with the
\napplicable provisions of ERISA, the Code and other federal or state law. Each
\nPlan which is intended to qualify under Section 401(a) of the Code has received
\na favorable determination letter from the IRS and to the best knowledge of the
\nBorrower, nothing has occurred which would cause the loss of such qualification.
\nThe Borrower and each ERISA Affiliate has made all required contributions to any
\nPlan subject to Section 412 of the Code, and no application for a funding waiver
\nor an extension of any amortization period pursuant to Section 412 of the Code
\nhas been made with respect to any Plan.<\/p>\n
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45
\n (b) There are no pending or, to the best knowledge of Borrower,
\nthreatened claims, actions or lawsuits, or action by any Governmental Authority,
\nwith respect to any Plan which has resulted or could reasonably be expected to
\nresult in a Material Adverse Effect. There has been no prohibited transaction or
\nviolation of the fiduciary responsibility rules with respect to any Plan which
\nhas resulted or could reasonably be expected to result in a Material Adverse
\nEffect.<\/p>\n
(c)(i) No ERISA Event has occurred or is reasonably expected to
\noccur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
\nthe Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
\nincur, any liability under Title IV of ERISA with respect to any Pension Plan
\n(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
\nneither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
\nto incur, any liability (and no event has occurred which, with the giving of
\nnotice under Section 4219 of ERISA, would result in such liability) under
\nSection 4201 or 4243 of ERISA with respect to a Multiemployer Plan; and (v)
\nneither the Borrower nor any ERISA Affiliate has engaged in a transaction that
\ncould be subject to Section 4069 or 4212(c) of ERISA, which in the case of each
\nof the foregoing clauses (i) through (v) could reasonably be expected to have a
\nMaterial Adverse Effect.<\/p>\n
5.8 USE OF PROCEEDS; MARGIN REGULATIONS<\/p>\n
The proceeds of the Loans are to be used solely for the purposes set
\nforth in and permitted by Section 6.12 and Section 7.7. Neither the Borrower nor
\nany Subsidiary is generally engaged in the business of purchasing or selling
\nMargin Stock or extending credit for the purpose of purchasing or carrying
\nMargin Stock.<\/p>\n
5.9 TITLE TO PROPERTIES<\/p>\n
The Borrower and each Subsidiary have good record and marketable title
\nin fee simple to, or valid leasehold interests in, all real property necessary
\nor used in the ordinary conduct of their respective businesses, except for such
\ndefects in title which could not, individually or in the aggregate, reasonably
\nbe expected to have a Material Adverse Effect. As of the Closing Date, the
\nproperty of the Borrower and its Subsidiaries is subject to no Liens, other than
\nPermitted Liens.<\/p>\n
5.10 TAXES<\/p>\n
The Borrower and its Subsidiaries have filed all Federal and other
\nmaterial tax returns and reports required to be filed, and have paid all Federal
\nand other material taxes, assessments, fees and other governmental charges
\nlevied or imposed upon them or their properties, income or assets otherwise due
\nand payable, except those which <\/p>\n
-39-<\/p>\n
46
\nare being contested in good faith by appropriate proceedings and for which
\nadequate reserves have been provided in accordance with GAAP. There is no
\nproposed tax assessment against the Borrower or any Subsidiary that would, if
\nmade, have a Material Adverse Effect.<\/p>\n
5.11 FINANCIAL CONDITION<\/p>\n
(a) The unaudited consolidated financial statements of the Borrower and
\nits Subsidiaries dated September 30, 1997, and the related consolidated
\nstatements of income or operations, shareholders’ equity and cash flows for the
\nfiscal quarter ended on that date:<\/p>\n
(i) were prepared in accordance with GAAP consistently applied
\nthroughout the period covered thereby, except as otherwise expressly noted
\ntherein, subject to ordinary, good faith year-end audit adjustments;<\/p>\n
(ii) fairly present the financial condition of the Borrower and
\nits Subsidiaries as of the date thereof and results of operations for the period
\ncovered thereby; and<\/p>\n
(iii) except as specifically disclosed in Schedule 5.11, show all
\nmaterial indebtedness and other liabilities, direct or contingent, of the
\nBorrower and its consolidated Subsidiaries as of the date thereof, including
\nliabilities for taxes, material commitments and Contingent Obligations.<\/p>\n
(b) Since September 30, 1997, there has been no Material Adverse Effect.<\/p>\n
5.12 ENVIRONMENTAL MATTERS<\/p>\n
(a) Except as specifically disclosed in Schedule 5.12, the on-going
\noperations of the Borrower and each of its Subsidiaries comply in all respects
\nwith all Environmental Laws, except such non-compliance which would not (if
\nenforced in accordance with applicable law) result in liability in excess of
\n$2,000,000 in the aggregate.<\/p>\n
(b) Except as specifically disclosed in Schedule 5.12, the Borrower and
\neach of its Subsidiaries have obtained all licenses, permits, authorizations and
\nregistrations required under any Environmental Law (“Environmental Permits”) and
\nnecessary for their respective ordinary course operations, all such
\nEnvironmental Permits are in good standing, and the Borrower and each of its
\nSubsidiaries are in compliance with all material terms and conditions of such
\nEnvironmental Permits except to the extent the failure to have such
\nEnvironmental Permits or to comply therewith could not reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n
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47
\n (c) Except as specifically disclosed in Schedule 5.12, none of the
\nBorrower, any of its Subsidiaries or any of their respective present property or
\noperations, is subject to any outstanding written order from or agreement with
\nany Governmental Authority, nor subject to any judicial or docketed
\nadministrative proceeding, respecting any Environmental Law, Environmental Claim
\nor Hazardous Material, which would if adversely determined, result in a
\nliability or in economic loss in excess of $2,000,000 in the aggregate.<\/p>\n
(d) Except as specifically disclosed in Schedule 5.12, there are no
\nHazardous Materials or other conditions or circumstances existing with respect
\nto any property of the Borrower or any Subsidiary, or arising from operations
\nprior to the Closing Date, of the Borrower or any of its Subsidiaries that would
\nreasonably be expected to give rise to Environmental Claims with a potential
\nliability of the Borrower and its Subsidiaries in excess of $2,000,000 in the
\naggregate for any such condition, circumstance or property. In addition, (i)
\nneither the Borrower nor any Subsidiary has any underground storage tanks (x)
\nthat are not properly registered or permitted under applicable Environmental
\nLaws, or (y) that are leaking or disposing of Hazardous Materials off-site, and
\n(ii) the Borrower and its Subsidiaries have notified all of their employees of
\nthe existence, if any, of any health hazard arising from the conditions of their
\nemployment and have met all notification requirements under Title III of CERCLA
\nand all other Environmental Laws.<\/p>\n
5.13 COLLATERAL DOCUMENTS<\/p>\n
(a) As of the date hereof, the provisions of each of the Collateral
\nDocuments are effective to create in favor of the Agent for the benefit of the
\nLenders, a legal, valid and enforceable security interest in all right, title
\nand interest of the Borrower and its Subsidiaries in the collateral described
\ntherein; and financing statements have been delivered to the Agent for filing in
\nthe offices in all of the jurisdictions listed in the schedule to the Security
\nAgreement and executed Patent Assignments, Trademarks Assignments and Copyright
\nAssignments have been delivered to the Agent for filing in the U.S. Patent and
\nTrademark Office and the U.S. Copyright Office and upon the filing of such
\nassignments and such financing statements in such offices, the Agent, for the
\nbenefit of the Lenders, will have a perfected first priority security interest
\n(subject only to Permitted Liens) in the collateral described thereon in which a
\nsecurity interest may be perfected by the filing of such financing statements or
\nassignments, and upon delivery of those items of Collateral for which physical
\npossession is the method for perfection, the Agent, for the benefit of the
\nLenders will have a valid, first priority security interest thereon.<\/p>\n
(b) All representations and warranties of the Borrower and any of its
\nSubsidiaries party thereto contained in the Collateral Documents are true and
\ncorrect.<\/p>\n
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48
\n5.14 REGULATED ENTITIES<\/p>\n
None of the Borrower, any Person controlling the Borrower, or any
\nSubsidiary, is an “Investment Company” within the meaning of the Investment
\nCompany Act of 1940. The Borrower is not subject to regulation under the Public
\nUtility Holding Company Act of 1935, the Federal Power Act, the Interstate
\nCommerce Act, any state public utilities code, or any other Federal or state
\nstatute or regulation limiting its ability to incur Indebtedness.<\/p>\n
5.15 NO BURDENSOME RESTRICTIONS<\/p>\n
As of the date of this Agreement, neither the Borrower nor any
\nSubsidiary is a party to or bound by any Contractual Obligation, or subject to
\nany restriction in any Organization Document, or any Requirement of Law, which
\ncould reasonably be expected to have a Material Adverse Effect.<\/p>\n
5.16 COPYRIGHTS, PATENTS, TRADEMARKS AND LICENSES, ETC.<\/p>\n
The Borrower or its Subsidiaries own or are licensed or otherwise have
\nthe right to use all of the patents, trademarks, service marks, trade names,
\ncopyrights, contractual franchises, authorizations and other rights that are
\nreasonably necessary for the operation of their respective businesses, without
\nconflict with the rights of any other Person. To the best knowledge of the
\nBorrower, no slogan or other advertising device, product, process, method,
\nsubstance, part or other material now employed, or now contemplated to be
\nemployed, by the Borrower or any Subsidiary infringes upon any rights held by
\nany other Person. Except as specifically disclosed in Schedule 5.5, no claim or
\nlitigation regarding any of the foregoing is pending or threatened, and no
\npatent, invention, device, application, principle or any statute, law, rule,
\nregulation, standard or code is pending or, to the knowledge of the Borrower,
\nproposed, which, in either case, could reasonably be expected to have a Material
\nAdverse Effect.<\/p>\n
5.17 SUBSIDIARIES<\/p>\n
As of the date of this Agreement, the Borrower has no Subsidiaries other
\nthan those specifically disclosed in part (a) of Schedule 5.17 hereto and has no
\nInvestments in any other corporation or entity other than those specifically
\ndisclosed in part (b) of Schedule 5.17.<\/p>\n
5.18 INSURANCE<\/p>\n
Except as specifically disclosed in Schedule 5.18, the properties of the
\nBorrower and its Subsidiaries are insured with financially sound and reputable<\/p>\n
-42-<\/p>\n
49
\ninsurance companies not Affiliates of the Borrower, in such amounts, with such
\ndeductibles and covering such risks as are customarily carried by companies
\nengaged in similar businesses and owning similar properties in localities where
\nthe Borrower or such Subsidiary operates.<\/p>\n
5.19 SOLVENCY<\/p>\n
The Borrower and each of its Material Subsidiaries are Solvent.<\/p>\n
5.20 FULL DISCLOSURE<\/p>\n
None of the representations or warranties made by the Borrower or any
\nSubsidiary in the Loan Documents as of the date such representations and
\nwarranties are made or deemed made, and none of the statements contained in any
\nexhibit, report, statement or certificate furnished by or on behalf of the
\nBorrower or any Subsidiary in connection with the Loan Documents (including the
\noffering and disclosure materials delivered by or on behalf of the Borrower to
\nthe Lenders prior to the Closing Date), contains any untrue statement of a
\nmaterial fact or omits any material fact required to be stated therein or
\nnecessary to make the statements made therein, in light of the circumstances
\nunder which they are made, not misleading as of the time when made or delivered.<\/p>\n
ARTICLE VI
\n AFFIRMATIVE COVENANTS<\/p>\n
So long as any Lender shall have any Commitment hereunder, or any Loan
\nor other Obligation shall remain unpaid or unsatisfied, unless the Required
\nLenders waive compliance in writing:<\/p>\n
6.1 FINANCIAL STATEMENTS<\/p>\n
The Borrower shall deliver to the Agent, in form and detail reasonably
\nsatisfactory to the Agent and the Required Lenders, with sufficient copies for
\neach Lender:<\/p>\n
(a) as soon as available, but not later than 95 days after the
\nend of each fiscal year, a copy of the audited consolidated balance sheet of the
\nBorrower and its Subsidiaries as at the end of such year and the related
\nconsolidated statements of income or operations, shareholders’ equity and cash
\nflows for such year, setting forth in each case in comparative form the figures
\nfor the previous fiscal year, and accompanied by the opinion of Ernst & Young
\nLLP or another nationally recognized independent public accounting firm
\n(“Independent Auditor”) which report shall state <\/p>\n
-43-<\/p>\n
50
\nthat such consolidated financial statements present fairly the financial
\nposition for the periods indicated in conformity with GAAP applied on a basis
\nconsistent with prior years with the exception of changes noted therein. Such
\nopinion shall not be qualified or limited because of a restricted or limited
\nexamination by the Independent Auditor of any material portion of the Borrower’s
\nor any Subsidiary’s records;<\/p>\n
(b) as soon as available, but not later than 50 days after the
\nend of each of the first three fiscal quarters of each fiscal year a copy of the
\nunaudited consolidated balance sheet (including a statement of stockholders’
\nequity) of the Borrower and its Subsidiaries as of the end of such quarter and
\nthe related consolidated statements of income and cash flows for the period
\ncommencing on the first day and ending on the last day of such quarter, and
\ncertified by a Responsible Officer as fairly presenting, in accordance with GAAP
\n(subject to normal good faith year-end audit adjustments), the financial
\nposition and the results of operations of the Borrower and the Subsidiaries;<\/p>\n
(c) concurrent with the delivery of each of the reports required
\nunder clauses (a) and (b) above, a good faith reasonable estimate by the
\nBorrower for the Non-Material Subsidiaries of such Non-Material Subsidiaries’
\n(i) total (gross) revenues (on a consolidated basis) for the four fiscal quarter
\nperiod ending as of the report date and (ii) total assets (on a consolidated
\nbasis), as of the last day of the fiscal quarter ending as of the report date,
\nreported on a net book value basis; provided, that any Non-Material Subsidiary
\nwhich has less than four fiscal quarters of financial information shall
\nannualize the financial results of its operations for purposes of this
\nSection 6.1(c).<\/p>\n
6.2 CERTIFICATES; OTHER INFORMATION<\/p>\n
The Borrower shall furnish to the Agent, with sufficient copies for each
\nLender:<\/p>\n
(a) concurrently with the delivery of the financial statements
\nreferred to in subsection 6.1(a), a certificate of the Independent Auditor
\nstating that in making the examination necessary therefor no knowledge was
\nobtained of any Default or Event of Default, except as specified in such
\ncertificate;<\/p>\n
(b) concurrently with the delivery of the financial statements
\nreferred to in subsections 6.1(a) and (b), a Compliance Certificate executed by
\na Responsible Officer;<\/p>\n
(c) promptly, copies of all financial statements and reports that
\nthe Borrower sends to its shareholders, and copies of all financial statements
\nand regular, <\/p>\n
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51
\nperiodical or special reports (including Forms 10K, 10Q and 8K) that the
\nBorrower or any Subsidiary may make to, or file with, the SEC;<\/p>\n
(d) promptly, such additional information regarding the business,
\nfinancial or corporate affairs of the Borrower or any Subsidiary as the Agent,
\nat the request of any Lender, may from time to time reasonably request; and<\/p>\n
(e) concurrently with the delivery of the financial statements
\nreferred to in subsections 6.1(a) and (b) and immediately prior to each
\nAcquisition or Investment resulting in a Person becoming a Subsidiary, a
\ncertification of a Responsible Officer specifying which of the Subsidiaries of
\nthe Borrower are Non-Material Subsidiaries and demonstrating compliance with
\nSection 7.16 (after giving effect to such Acquisition or Investment), together
\nwith the information required under Section 6.1(c).<\/p>\n
6.3 NOTICES<\/p>\n
The Borrower shall promptly notify the Agent and each Lender:<\/p>\n
(a) of the occurrence of any Default or Event of Default;<\/p>\n
(b) of (i) any breach or non-performance of, or any default
\nunder, any Contractual Obligation of the Borrower or any of its Subsidiaries
\nwhich could reasonably be expected to result in a Material Adverse Effect; and
\n(ii) any dispute, litigation, investigation, proceeding or suspension which may
\nexist at any time between the Borrower or any of its Subsidiaries and any
\nGovernmental Authority which could have a Material Adverse Effect, if adversely
\ndetermined;<\/p>\n
(c) of the commencement of, or any material development in, any
\nlitigation or proceeding affecting the Borrower or any Subsidiary (i) in which
\nthe amount of damages claimed is $2,000,000 (or its equivalent in another
\ncurrency or currencies) or more, (ii) in which injunctive or similar relief is
\nsought and which, if adversely determined, would reasonably be expected to have
\na Material Adverse Effect, or (iii) in which the relief sought is an injunction
\nor other stay of the performance of this Agreement or any Loan Document;<\/p>\n
(d) upon, but in no event later than 10 days after, becoming
\naware of (i) any and all enforcement, cleanup, removal or other governmental or
\nregulatory actions instituted, completed or threatened against the Borrower or
\nany Subsidiary or any of their respective properties pursuant to any applicable
\nEnvironmental Laws, (ii) all other Environmental Claims, and (iii) any
\nenvironmental or similar condition on any real property adjoining or in the
\nvicinity of the property of the Borrower or any<\/p>\n
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52
\nSubsidiary that could reasonably be anticipated to cause such property or any
\npart thereof to be subject to any restrictions on the ownership, occupancy,
\ntransferability or use of such property under any Environmental Laws;<\/p>\n
(e) of any other litigation or proceeding affecting the Borrower
\nor any of its Subsidiaries which the Borrower would be required to report to the
\nSEC pursuant to the Exchange Act, within four days after reporting the same to
\nthe SEC;<\/p>\n
(f) of any of the following events affecting the Borrower,
\ntogether with a copy of any notice with respect to such event that may be
\nrequired to be filed with a Governmental Authority and any notice delivered by a
\nGovernmental Authority to the Borrower with respect to such event:<\/p>\n
(i) an ERISA Event;<\/p>\n
(ii) if any of the representations and warranties in
\nSection 5.7 ceases to be true and correct;<\/p>\n
(iii) the adoption of any new Pension Plan or other Plan
\nsubject to Section 412 of the Code;<\/p>\n
(iv) the adoption of any amendment to a Pension Plan or
\nother Plan subject to Section 412 of the Code, if such amendment results in a
\nmaterial increase in contributions or Unfunded Pension Liability; or<\/p>\n
(v) the commencement of contributions to any Pension Plan
\nor other Plan subject to Section 412 of the Code; and<\/p>\n
(g) of any material change in accounting policies or financial
\nreporting practices by the Borrower or any of its consolidated Subsidiaries.<\/p>\n
Each notice under this Section shall be accompanied by a written
\nstatement by a Responsible Officer setting forth details of the occurrence
\nreferred to therein, and stating what action the Borrower or any affected
\nSubsidiary proposes to take with respect thereto and at what time. Each notice
\nunder subsection 6.3(a) shall describe with particularity any and all clauses or
\nprovisions of this Agreement or other Loan Document that have been (or
\nforeseeably will be) breached or violated.<\/p>\n
6.4 PRESERVATION OF CORPORATE EXISTENCE, ETC.<\/p>\n
The Borrower shall, and shall cause each Subsidiary to:<\/p>\n
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53
\n (a) preserve and maintain in full force and effect its corporate,
\npartnership, limited liability or other existence and good standing under the
\nlaws of its state or jurisdiction of incorporation or formation;<\/p>\n
(b) preserve and maintain in full force and effect all
\ngovernmental rights, privileges, qualifications, permits, licenses and
\nfranchises necessary or desirable in the normal conduct of its business except
\nin connection with transactions permitted by Section 7.3 and sales of assets
\npermitted by Section 7.2;<\/p>\n
(c) use reasonable efforts, in the ordinary course of business,
\nto preserve its business organization and goodwill (subject in the case of
\nSubsidiaries, to transactions permitted under Sections 7.2 and 7.3); and<\/p>\n
(d) preserve or renew all of its registered patents, trademarks,
\ntrade names and service marks, the non-preservation of which could reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n
6.5 MAINTENANCE OF PROPERTY<\/p>\n
The Borrower shall maintain, and shall cause each Subsidiary to
\nmaintain, and preserve all its property which is used or useful in its business
\nin good working order and condition, ordinary wear and tear excepted and make
\nall necessary repairs thereto and renewals and replacements thereof except where
\nthe failure to do so could not reasonably be expected to have a Material Adverse
\nEffect, except as permitted by Section 7.2.<\/p>\n
6.6 INSURANCE<\/p>\n
In addition to insurance requirements set forth in the Collateral
\nDocuments, the Borrower shall maintain, and shall cause each of its Subsidiaries
\nto maintain, with financially sound and reputable independent insurers,
\ninsurance with respect to its properties and business against loss or damage of
\nthe kinds customarily insured against by Persons engaged in the same or similar
\nbusiness, of such types and in such amounts as are customarily carried under
\nsimilar circumstances by such other Persons; including workers’ compensation
\ninsurance, public liability and property and casualty insurance which amount
\nshall not be reduced by the Borrower in the absence of 30 days’ prior notice to
\nthe Agent. All such insurance shall name the Agent as loss payee\/mortgagee and
\nas additional insured, for the benefit of the Lenders, as their interests may
\nappear. Upon request of the Agent or any Lender, the Borrower shall furnish the
\nAgent, with sufficient copies for each Lender, at reasonable intervals (but not
\nmore than once per calendar year) a certificate of a Responsible Officer of the
\nBorrower (and, if requested by the Agent, any insurance broker of the Borrower)<\/p>\n
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54
\nsetting forth the nature and extent of all insurance maintained by the Borrower
\nand its Subsidiaries in accordance with this Section or any Collateral Documents
\n(and which, in the case of a certificate of a broker, were placed through such
\nbroker).<\/p>\n
6.7 PAYMENT OF OBLIGATIONS<\/p>\n
The Borrower shall, and shall cause each Subsidiary to, pay and
\ndischarge as the same shall become due and payable, all their respective
\nobligations and liabilities, including:<\/p>\n
(a) all tax liabilities, assessments and governmental charges or
\nlevies upon it or its properties or assets, unless the same are being contested
\nin good faith by appropriate proceedings and adequate reserves in accordance
\nwith GAAP are being maintained by the Borrower or such Subsidiary;<\/p>\n
(b) all lawful claims which, if unpaid, would by law become a
\nLien upon its property; and<\/p>\n
(c) all indebtedness, as and when due and payable, but subject to
\nany subordination provisions contained in any instrument or agreement evidencing
\nsuch Indebtedness.<\/p>\n
6.8 COMPLIANCE WITH LAWS<\/p>\n
The Borrower shall comply, and shall cause each Subsidiary to comply, in
\nall material respects with all Requirements of Law of any Governmental Authority
\nhaving jurisdiction over it or its business (including the Federal Fair Labor
\nStandards Act), except such as may be contested in good faith or as to which a
\nbona fide dispute may exist.<\/p>\n
6.9 COMPLIANCE WITH ERISA<\/p>\n
The Borrower shall, and shall cause each of its ERISA Affiliates to: (a)
\nmaintain each Plan in compliance in all material respects with the applicable
\nprovisions of ERISA, the Code and other federal or state law; (b) cause each
\nPlan which is qualified under Section 401(a) of the Code to maintain such
\nqualification; and (c) make all required contributions to any Plan subject to
\nSection 412 of the Code.<\/p>\n
6.10 INSPECTION OF PROPERTY AND BOOKS AND RECORDS<\/p>\n
The Borrower shall maintain and shall cause each Subsidiary to maintain
\nproper books of record and account, in which full, true and correct entries in
\nconformity with GAAP consistently applied shall be made of all financial
\ntransactions <\/p>\n
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55
\nand matters involving the assets and business of the Borrower and such
\nSubsidiary. The Borrower shall permit, and shall cause each Subsidiary to
\npermit, in each case no more frequently than annually prior to the occurrence of
\nan Event of Default, representatives and independent contractors (which, in the
\ncase of any auditing personnel, shall be employees of a nationally recognized
\naccounting firm) of the Agent who execute and deliver to the Borrower a
\nconfidentiality agreement consistent with Section 10.9 hereof to visit and
\ninspect any of their respective properties, to examine their respective
\ncorporate, financial and operating records, and make copies thereof or abstracts
\ntherefrom, and to discuss their respective affairs, finances and accounts with
\ntheir respective directors, officers, and independent public accountants, all at
\nthe reasonable expense of the Borrower and at such reasonable times during
\nnormal business hours, upon reasonable advance notice to the Borrower; provided,
\nhowever, when an Event of Default exists the Agent or any Lender may do any of
\nthe foregoing at the expense of the Borrower at any time during normal business
\nhours and without advance notice; provided, further however, that such
\ninspections shall be permitted with such frequency as may reasonably be desired
\nby the Agent on and after the occurrence of a Default or an Event of Default.<\/p>\n
6.11 ENVIRONMENTAL LAWS<\/p>\n
(a) The Borrower shall, and shall cause each Subsidiary to, conduct its
\noperations and keep and maintain its property in compliance with all
\nEnvironmental Laws in all material respects.<\/p>\n
(b) Upon the written request of the Agent or any Lender, the Borrower
\nshall submit and cause each of its Subsidiaries to submit, to the Agent with
\nsufficient copies for each Lender, at the Borrower’s sole cost and expense, at
\nreasonable intervals, a report providing an update of the status of any
\nenvironmental, health or safety compliance, hazard or liability issue identified
\nin any notice or report required pursuant to subsection 6.3(d), that could,
\nindividually or in the aggregate, result in liability in excess of $500,000.<\/p>\n
6.12 USE OF PROCEEDS<\/p>\n
The Borrower shall use the proceeds of the Loans only for one or more of
\nthe following: working capital, acquisitions permitted hereunder, funding
\noperations, Joint Ventures permitted hereunder and other general corporate
\npurposes not in contravention of any Requirement of Law or of any Loan Document.<\/p>\n
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56
\n6.13 SWAP CONTRACTS<\/p>\n
Within 30 days of the Closing Date, the Borrower shall enter into Swap
\nContracts providing protection against fluctuations in interest rates with one
\nor more financial institutions each having a combined capital and surplus of at
\nleast $100,000,000 with respect to at least $37,500,000 of the Loans, which
\nagreements shall provide for not less than a one-year term and contain such
\nother terms and provisions as are customary and satisfactory to the Agent.<\/p>\n
6.14 FURTHER ASSURANCES<\/p>\n
(a) The Borrower shall ensure that all written information, exhibits and
\nreports furnished to the Agent or the Lenders do not and will not contain any
\nuntrue statement of a material fact and do not and will not omit to state any
\nmaterial fact necessary to make the statements contained therein not misleading
\nin light of the circumstances in which made, and will promptly disclose to the
\nAgent and the Lenders and correct any defect or error that may be discovered
\ntherein or in any Loan Document or in the execution, acknowledgment or
\nrecordation thereof.<\/p>\n
(b) Promptly upon request by the Agent or the Required Lenders, the
\nBorrower shall (and shall cause any of its Subsidiaries to) do, execute,
\nacknowledge, deliver, record, re-record, file, re-file, register and
\nre-register, any and all such further acts, deeds, conveyances, security
\nagreements, mortgages, assignments, estoppel certificates, financing statements
\nand continuations thereof, termination statements, notices of assignment,
\ntransfers, certificates, assurances and other instruments the Agent or such
\nRequired Lenders, as the case may be, may reasonably require from time to time
\nin order (i) to carry out more effectively the purposes of this Agreement or any
\nother Loan Document, (ii) to subject to the Liens created by any of the
\nCollateral Documents any of the properties, rights or interests covered by any
\nof the Collateral Documents, except as otherwise provided in the Loan Documents,
\n(iii) to perfect and maintain the validity, effectiveness and priority of any of
\nthe Collateral Documents and the Liens intended to be created thereby, and (iv)
\nto better assure, convey, grant, assign, transfer, preserve, protect and confirm
\nto the Agent and Lenders the rights granted or now or hereafter intended to be
\ngranted to the Lenders under any Loan Document or under any other document
\nexecuted in connection therewith.<\/p>\n
(c) Within 20 days of the Closing Date, (i) the Borrower shall deliver
\nto the Agent, lien search results evidencing the filing of Financing Statements
\n(as defined in the Security Agreement) in the jurisdictions listed in Schedule
\n6.14 hereto, naming the Borrower as “debtor” and the Agent as “secured party”
\nand confirming that no other financing statements have been filed with respect
\nto the Collateral in such jurisdictions (other than Permitted Liens) and (ii)
\nthe Borrower shall use its diligent <\/p>\n
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57
\nefforts to obtain from its lessors\/warehousemen a consent substantially in the
\nform attached hereto as Exhibit G.<\/p>\n
(d) Promptly upon any Person becoming after the date hereof a Subsidiary
\nof the Borrower, the Borrower:<\/p>\n
(i) shall cause such Subsidiary to execute and deliver to the
\nAgent a guaranty of all of the Obligations in form and substance reasonably
\nacceptable to the Required Lenders and the Agent;<\/p>\n
(ii) shall cause such Subsidiary to execute and deliver to the
\nAgent a security agreement granting a security interest in all of such
\nSubsidiary’s assets in favor of the Agent for the benefit of the Lenders as
\nsecurity for the Obligations (including the obligations of such Subsidiary under
\nthe guaranty referred to in clause (i) above), in form and substance reasonably
\nacceptable to the Required Lenders and the Agent and shall cause to be delivered
\nto the Agent with respect to such Subsidiary the documents referred to in
\nSection 4.1, mutatis mutandis, together with such opinions in form and substance
\nand from counsel reasonably satisfactory to the Agent, as the Agent may require;
\nand<\/p>\n
(iii) shall cause each Person that is the Borrower or an Affiliate
\nof the Borrower that is the direct owner of any shares of capital stock (or
\nother evidence of beneficial ownership) of such Subsidiary to execute and
\ndeliver to the Agent a pledge agreement pledging in favor of the Agent for the
\nbenefit of the Lenders as security for the Obligations, all of such capital
\nstock, in form and substance reasonably acceptable to the Required Lenders and
\nthe Agent, and shall cause to be delivered to the Agent certificates evidencing
\nall of the issued and outstanding shares of capital stock (or other evidence of
\nbeneficial ownership) of such Subsidiary, together with undated stock powers (or
\nsimilar instruments of transfer) owned by such Persons duly executed in blank
\nand appropriately completed Uniform Commercial Code financing statements, if
\napplicable, with respect thereto (or, if any such shares of capital stock (or
\nother evidence of beneficial ownership) are not represented by certificates,
\nconfirmation and evidence satisfactory to the Agent that the security interest
\nin such shares (or other such evidence) has been transferred and\/or registered
\nin accordance with the laws of the applicable jurisdictions so as to create a
\nvalid first-priority perfected security interest therein for the benefit of the
\nAgent and the Lenders) and together with such opinions in form and substance and
\nfrom counsel reasonably satisfactory to the Agent, as the Agent may reasonably
\nrequire;<\/p>\n
provided, that in the case of an Acquisition where the Borrower and its
\nAffiliates acquire less than 100% of the common shares or other common voting
\nequity interests of a Person, the Borrower shall be required to provide the
\nsecurity agreement and <\/p>\n
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58
\nguaranty provided for in clauses (i) and (ii) above only if consented to by the
\nholders of at least 95% (other than the Borrower and its Affiliates) of the
\ncommon shares or other common voting equity interests of such Person; provided,
\nfurther, that the Borrower shall be required to make a good faith request for
\nsuch consent from such holders; provided, further, if all of the common shares
\nor other common voting equity interests of such Person are subsequently acquired
\nby the Borrower and its Affiliates, such Person shall promptly comply with
\nclauses (i) and (ii) above.<\/p>\n
ARTICLE VII
\n NEGATIVE COVENANTS<\/p>\n
So long as any Lender shall have any Commitment hereunder, or any Loan
\nor other Obligation shall remain unpaid or unsatisfied, unless the Required
\nLenders waive compliance in writing:<\/p>\n
7.1 LIMITATION ON LIENS<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, directly or indirectly, make, create, incur, assume or suffer to exist any
\nLien upon or with respect to any part of its property, whether now owned or
\nhereafter acquired, other than the following (“Permitted Liens”):<\/p>\n
(a) any Lien (other than a Lien on the Collateral) existing on
\nproperty of the Borrower or any Subsidiary on the Closing Date and set forth in
\nSchedule 7.1 securing Indebtedness outstanding on such date;<\/p>\n
(b) any Lien created under any Loan Document;<\/p>\n
(c) Liens for taxes, fees, assessments or other governmental
\ncharges which are not delinquent or remain payable without penalty, or to the
\nextent that non-payment thereof is permitted by Section 6.7, provided that no
\nnotice of lien has been filed or recorded under the Code;<\/p>\n
(d) carriers’, warehousemen’s, mechanics’, landlords’,
\nmaterialmen’s, repairmen’s or other similar Liens arising in the ordinary course
\nof business which are not delinquent or remain payable without penalty or which
\nare being contested in good faith and by appropriate proceedings, which
\nproceedings have the effect of preventing the forfeiture or sale of the property
\nsubject thereto;<\/p>\n
(e) Liens (other than any Lien imposed by ERISA and other than on
\nthe Collateral) consisting of pledges or deposits required in the ordinary
\ncourse of business in connection with workers’ compensation, unemployment
\ninsurance and other social security legislation;<\/p>\n
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59
\n (f) Liens (other than Liens on the Collateral) on the property of
\nthe Borrower or its Subsidiary securing (i) the non-delinquent performance of
\nbids, trade contracts (other than for borrowed money), leases, statutory
\nobligations, (ii) contingent obligations on surety and appeal bonds, and (iii)
\nother non-delinquent obligations of a like nature; in each case, incurred in the
\nordinary course of business, provided all such Liens in the aggregate would not
\n(even if enforced) cause a Material Adverse Effect;<\/p>\n
(g) Liens (other than Liens on the Collateral) consisting of
\njudgment or judicial attachment liens, provided that the enforcement of such
\nLiens is effectively stayed and all such liens in the aggregate at any time
\noutstanding for the Borrower and its Subsidiaries do not exceed $2,000,000;<\/p>\n
(h) easements, rights-of-way, restrictions and other similar
\nencumbrances incurred in the ordinary course of business which, in the
\naggregate, are not substantial in amount, and which do not in any case
\nmaterially detract from the value of the property subject thereto or interfere
\nwith the ordinary conduct of the businesses of the Borrower and its
\nSubsidiaries;<\/p>\n
(i) Liens on assets of corporations which become Subsidiaries
\nafter the date of this Agreement, provided, however, that such Liens existed at
\nthe time the respective corporations became Subsidiaries and were not created in
\nanticipation thereof;<\/p>\n
(j) Liens on assets acquired in an Acquisition, which Liens
\nexisted prior to the completion of the Acquisition and were not created in
\ncontemplation thereof;<\/p>\n
(k) purchase money security interests on any property (together
\nwith proceeds, but not products, thereof) acquired or held by the Borrower or
\nits Subsidiaries in the ordinary course of business, securing Indebtedness
\nincurred or assumed for the purpose of financing all or any part of the cost of
\nacquiring such property; provided that (i) any such Lien attaches to such
\nproperty concurrently with or within 20 days after the acquisition thereof, (ii)
\nsuch Lien attaches solely to the property (together with the proceeds, but not
\nproducts, thereof) so acquired in such transaction, (iii) the principal amount
\nof the debt secured thereby does not exceed 100% of the cost of such property,
\nand (iv) the annual amortization of the principal amount of the Indebtedness
\nsecured by any and all such purchase money security interests shall not at any
\ntime exceed, together with, without duplication, the annual lease payments in
\nrespect of Indebtedness permitted under Section 7.5(g) as required (or elected
\nby the Borrower) to be stated per GAAP in its cash flow statements as
\namortization, $5,000,000;<\/p>\n
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60
\n (l) Liens securing obligations in respect of capital leases on
\nassets subject to such leases, provided that such capital leases are otherwise
\npermitted hereunder;<\/p>\n
(m) Liens arising solely by virtue of any statutory or common law
\nprovision relating to banker’s liens, rights of set-off or similar rights and
\nremedies as to deposit accounts or other funds maintained with a creditor
\ndepository institution; provided that (i) such deposit account is not a
\ndedicated cash collateral account and is not subject to restrictions against
\naccess by the Borrower in excess of those set forth by regulations promulgated
\nby the FRB except as provided on Schedule 7.1 hereof, and (ii) such deposit
\naccount is not intended by the Borrower or any Subsidiary to provide collateral
\nto the depository institution; and<\/p>\n
(n) Liens consisting of pledges of cash collateral or government
\nsecurities to secure on a mark-to-market basis obligations under Swap Contracts
\nentered into in the ordinary course of business as bona fide hedging
\ntransactions, provided that (i) the counterparty to such Swap Contract is under
\na similar requirement to deliver similar collateral from time to time to the
\nBorrower or the Subsidiary party thereto, and (ii) the aggregate value of such
\ncollateral so pledged by the Borrower and the Subsidiaries together in favor of
\nany counterparty does not at any time exceed $2,000,000.<\/p>\n
7.2 DISPOSITION OF ASSETS<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, directly or indirectly, sell, assign, lease, convey, transfer or otherwise
\ndispose of (whether in one or a series of transactions) any property (including
\naccounts and notes receivable, with or without recourse) or enter into any
\nagreement to do any of the foregoing, except:<\/p>\n
(a) dispositions of inventory, or used, worn-out or surplus
\nequipment, all in the ordinary course of business; and<\/p>\n
(b) the sale of equipment to the extent that such equipment is
\nexchanged for credit against the purchase price of similar replacement
\nequipment, or the proceeds of such sale are reasonably promptly applied,
\nconsistent with Section 2.6, to the purchase price of such replacement
\nequipment; and<\/p>\n
(c) dispositions not otherwise permitted hereunder which are made
\nfor fair market value; provided, that (i) at the time of any disposition, no
\nEvent of Default shall exist or shall result from such disposition, (ii) the
\naggregate sales price <\/p>\n
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61
\nfrom such disposition shall be paid in cash, (iii) Net Proceeds thereof are
\napplied as set forth in Section 2.6 hereof.<\/p>\n
Promptly upon the request of the Borrower, the Agent shall take all
\nactions, at the cost and expense of the Borrower, necessary to release its
\nsecurity interest in assets that are disposed of in compliance with this
\nAgreement.<\/p>\n
7.3 CONSOLIDATIONS AND MERGERS<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, merge, consolidate with or into, or convey, transfer, lease or otherwise
\ndispose of (whether in one transaction or in a series of transactions) all or
\nsubstantially all of its assets (whether now owned or hereafter acquired) to or
\nin favor of any Person, except:<\/p>\n
(a) any Subsidiary may merge with the Borrower, provided that the
\nBorrower shall be the continuing or surviving corporation, or with any one or
\nmore Subsidiaries; provided that if any transaction shall be between a
\nSubsidiary and a Wholly-Owned Subsidiary, the Wholly-Owned Subsidiary shall be
\nthe continuing or surviving corporation; provided, further, no Subsidiary which
\nhas Indebtedness permitted under Section 7.5(e) or Contingent Obligations
\npermitted under Section 7.8(d) shall merge with the Borrower or any other
\nSubsidiary of the Borrower; and<\/p>\n
(b) any Subsidiary may sell all or substantially all of its
\nassets (upon voluntary liquidation or otherwise), to the Borrower or another
\nSubsidiary with respect to which the Borrower owns an equal or greater
\npercentage interest of the stock or other equity ownership interests.<\/p>\n
7.4 LOANS AND INVESTMENTS<\/p>\n
The Borrower shall not purchase or acquire, or suffer or permit any
\nSubsidiary to purchase or acquire, or make any commitment therefor, any capital
\nstock, equity interest, or any obligations or other securities of, or any
\ninterest in, any Person, or make or commit to make any Acquisitions, or make or
\ncommit to make any other Investment in, any Person including any Affiliate of
\nthe Borrower, except for:<\/p>\n
(a) Investments in Cash Equivalents;<\/p>\n
(b) extensions of credit in the nature of accounts receivable or
\nnotes receivable arising from the sale or lease of goods or services in the
\nordinary course of business;<\/p>\n
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62
\n (c) subject to Section 7.14(d), extensions of credit by the
\nBorrower to any of its Subsidiaries or by any of its Subsidiaries to another of
\nits Subsidiaries;<\/p>\n
(d) extensions of credit by the Borrower to any of its employees
\nin an individual amount for each employee not to exceed $250,000 at any one time
\noutstanding, in an aggregate amount for all such extensions of credit not to
\nexceed $1,000,000 at any one time outstanding, and in all cases having a
\nmaturity no longer than eighteen (18) months; and<\/p>\n
(e) Investments in connection with Acquisitions and Special
\nInvestments to the extent the same are permitted under Section 7.14(d) and, if
\nboth before and after giving effect thereto, no Default or Event of Default
\nexists would result therefrom;<\/p>\n
provided, in the case of extensions of credit described in clauses (c) and (d)
\nabove, such Indebtedness shall rank at least pari passu with all other
\nIndebtedness of the borrowing Person and shall be evidenced by a promissory note
\n(which in the case of clause (c) shall be a demand note) pledged by the Borrower
\nor the lending Subsidiary to the Agent, for the benefit of the Lenders.<\/p>\n
7.5 LIMITATION ON INDEBTEDNESS<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, create, incur, assume, suffer to exist, or otherwise become or remain
\ndirectly or indirectly liable with respect to, any Indebtedness, except:<\/p>\n
(a) Indebtedness incurred pursuant to this Agreement;<\/p>\n
(b) Indebtedness consisting of Contingent Obligations permitted
\npursuant to Section 7.8;<\/p>\n
(c) Indebtedness existing on the Closing Date and set forth in
\nSchedule 7.5;<\/p>\n
(d) Indebtedness consisting of Subordinated Debt incurred after
\nthe Closing Date;<\/p>\n
(e) Indebtedness of a Subsidiary which was the subject of an
\nAcquisition permitted hereunder provided that such Indebtedness existed at the
\ntime of such Acquisition and was not incurred in contemplation thereof;<\/p>\n
-56-<\/p>\n
63
\n (f) Indebtedness incurred in connection with capital leases
\npermitted pursuant to Section 7.9(a) or Section 7.9(c) (without duplication of
\nthe amounts permitted thereunder);<\/p>\n
(g) Indebtedness secured by Liens permitted by Section 7.1(k);<\/p>\n
(h) Indebtedness of the Borrower consisting of Contingent
\nObligations in respect of Indebtedness permitted under Section 7.5(g) or in
\nconnection with a capital lease permitted pursuant to Section 7.9(c); provided,
\nthat the rental payments and amortization in respect thereof shall, for purposes
\nof determining compliance with the limits set forth in Sections 7.1(k) and
\n7.9(c) be treated as if payable by the Borrower; and<\/p>\n
(i) Indebtedness consisting of extensions of credit permitted
\nunder Sections 7.4(c).<\/p>\n
7.6 TRANSACTIONS WITH AFFILIATES<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, enter into any transaction with any Affiliate of the Borrower, except upon
\nfair and reasonable terms no less favorable to the Borrower or such Subsidiary
\nthan would obtain in a comparable arm’s-length transaction with a Person not an
\nAffiliate of the Borrower or such Subsidiary; provided, that, such transactions
\nshall be permitted with respect to Wholly-Owned Subsidiaries so long as either
\nindividually or in the aggregate such transactions could not reasonably be
\nexpected to result in a Material Adverse Effect; provided, further, that such
\ntransactions shall be permitted with respect to Subsidiaries (other than
\nWholly-Owned Subsidiaries) so long as the aggregate value of all such
\ntransactions does not exceed $2,000,000.<\/p>\n
7.7 USE OF PROCEEDS<\/p>\n
(a) The Borrower shall not, and shall not suffer or permit any
\nSubsidiary to, use any portion of the Loan proceeds, directly or indirectly, (i)
\nto purchase or carry Margin Stock, (ii) to repay or otherwise refinance
\nindebtedness of the Borrower or others incurred to purchase or carry Margin
\nStock, (iii) to extend credit for the purpose of purchasing or carrying any
\nMargin Stock, or (iv) to acquire any security in any transaction that is subject
\nto Section 13 or 14 of the Exchange Act.<\/p>\n
(b) The Borrower shall not, directly or indirectly, use any portion of
\nthe Loan proceeds (i) knowingly to purchase Ineligible Securities from the
\nArranger during any period in which the Arranger makes a market in such
\nIneligible Securities, (ii) knowingly to purchase during the underwriting or
\nplacement period Ineligible <\/p>\n
-57-<\/p>\n
64
\nSecurities being underwritten or privately placed by the Arranger, or (iii) to
\nmake payments of principal or interest on Ineligible Securities underwritten or
\nprivately placed by the Arranger and issued by or for the benefit of the
\nBorrower or any Affiliate of the Borrower. The Arranger is a registered
\nbroker-dealer and permitted to underwrite and deal in certain Ineligible
\nSecurities; and “Ineligible Securities” means securities which may not be
\nunderwritten or dealt in by member banks of the Federal Reserve System under
\nSection 16 of the Banking Act of 1933 (12 U.S.C. Section 24, Seventh), as
\namended.<\/p>\n
7.8 CONTINGENT OBLIGATIONS<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, create, incur, assume or suffer to exist any Contingent Obligations except:<\/p>\n
(a) endorsements for collection or deposit in the ordinary course
\nof business;<\/p>\n
(b) Swap Contracts entered into in the ordinary course of
\nbusiness for companies similarly situated as the Borrower as bona fide hedging
\ntransactions including, without limitation, the Swap Contracts required under
\nSection 6.13;<\/p>\n
(c) Contingent Obligations of the Borrower and its Subsidiaries
\nexisting as of the Closing Date and listed in Schedule 7.8;<\/p>\n
(d) without duplication of the amounts permitted under Section
\n7.5(e), Contingent Obligations of a Subsidiary which was the subject of an
\nAcquisition permitted hereunder provided that such Contingent Obligations
\nexisted at the time of such Acquisition and were not incurred in contemplation
\nthereof; and<\/p>\n
(e) without duplication of the amounts permitted under Section
\n7.5(h), Contingent Obligations of the Borrower in respect of Indebtedness of the
\ntype described therein, subject in any case to the limits described therein.<\/p>\n
7.9 LEASE OBLIGATIONS<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, create or suffer to exist any obligations for the payment of rent for any
\nproperty under lease or agreement to lease, except for:<\/p>\n
(a) leases of the Borrower and of Subsidiaries in existence on
\nthe Closing Date and any renewal, extension or refinancing thereof;<\/p>\n
-58-<\/p>\n
65
\n (b) operating leases entered into by the Borrower or any
\nSubsidiary after the Closing Date in the ordinary course of business for
\ncompanies similarly situated as the Borrower;<\/p>\n
(c) capital leases other than those permitted under clause (a) of
\nthis Section, entered into by the Borrower or any Subsidiary after the Closing
\nDate to finance the acquisition of equipment; provided that the aggregate annual
\namount of rental payments for all such capital leases as required (or elected by
\nthe Borrower) to be stated per GAAP in its cash flow statements as amortization,
\ntogether with, without duplication, the aggregate principal amortization in
\nrespect of Indebtedness permitted under Section 7.5(f) shall not exceed in any
\nfiscal year, $5,000,000.<\/p>\n
7.10 RESTRICTED PAYMENTS<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, declare or make any dividend payment or other distribution of assets,
\nproperties, cash, rights, obligations or securities on account of any shares of
\nany class of its capital stock, or purchase, redeem or otherwise acquire for
\nvalue any shares of its capital stock or any warrants, rights or options to
\nacquire such shares, now or hereafter outstanding; except that (a) the Borrower
\nmay declare and make dividend payments, stock splits, or other distributions
\npayable solely in its common stock, (b) the Borrower may purchase or redeem
\nstock of the Borrower from former employees who acquired the stock pursuant to
\nan option plan of the Borrower but with respect to which the former employee’s
\nrights to such stock are not vested, (c) Subsidiaries of the Borrower which are
\norganized as limited liability companies or as limited partnerships may, if no
\nDefault or Event of Default then exists or would result therefrom, declare and
\nmake the minimum amount of annual dividends and distributions necessary in order
\nfor the partners or members thereof, as the case may be, to satisfy the tax
\nliability accruing to such partners or members, in respect of the net income of
\nsuch Subsidiary and (d) in addition to the foregoing, the Borrower and its
\nSubsidiaries may declare and pay dividends and distributions, and to consummate
\npurchases and redemptions, in an aggregate annual amount not to exceed
\n$1,000,000 provided that no Default or Event of Default exists or would result
\ntherefrom.<\/p>\n
7.11 ERISA<\/p>\n
The Borrower shall not, and shall not suffer or permit any of its ERISA
\nAffiliates to: (a) engage in a nonexempt prohibited transaction or violation of
\nERISA’s fiduciary responsibility rules with respect to any Plan which has
\nresulted or could reasonably expected to result in liability of the Borrower in
\nan aggregate amount in excess of $1,000,000; or (b) engage in a transaction that
\ncould reasonably be expected to be subject to Section 4069 or 4212(c) of ERISA.<\/p>\n
-59-<\/p>\n
66
\n7.12 CHANGE IN BUSINESS<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, engage in any material line of business substantially different from lines
\nof business primarily relating to sales and distribution of goods and services
\nover the Internet and similar electronic media; it being understood that
\nSubsidiaries may engage in material lines of business with respect to goods and
\nservices ancillary or substantially related to the foregoing.<\/p>\n
7.13 ACCOUNTING CHANGES<\/p>\n
The Borrower shall not, and shall not suffer or permit any Subsidiary
\nto, make any material change in accounting treatment or reporting practices,
\nexcept as required by GAAP, or change the fiscal year of the Borrower or of any
\nSubsidiary (except, in the case of Subsidiaries, to the extent necessary for
\nsuch Subsidiaries’ fiscal year and application of GAAP to be consistent with
\nthat of the Borrower).<\/p>\n
7.14 FINANCIAL COVENANTS<\/p>\n
(a) Minimum Cash Balance. The Borrower shall maintain at all times a
\nminimum balance of readily available unencumbered cash and Cash Equivalents on
\ndeposit in deposit or similar accounts at least equal to the Required Cash
\nBalance.<\/p>\n
(b) EBITDA\/Negative EBITDA Covenant. The Borrower’s EBITDA, measured at
\nend of the first fiscal quarter of 1998 for the quarter then ended, at the end
\nof the second fiscal quarter of 1998 for the two consecutive fiscal quarters
\nthen ended, at the end of the third fiscal quarter of 1998 for the three
\nconsecutive fiscal quarters then ended, and at each quarter end thereafter for
\nthe three consecutive quarters then ended shall not be less than the amounts
\nindicated below for such quarter end (and, if expressed as a deficit, the
\nBorrower’s EBITDA loss shall not be greater than the amount indicated below for
\nthe relevant period):<\/p>\n
[ * ]<\/p>\n
provided that for purposes hereof, “EBITDA” shall be determined without
\nreduction for non-cash charges consisting of expenses recognized with respect to
\ngoodwill, intangibles, and purchased research and development related to
\nAcquisitions permitted hereunder and accounted for during the relevant measuring
\nperiod.<\/p>\n
————<\/p>\n
[ * ] Confidential Treatment Requested<\/p>\n
-60-<\/p>\n
67
\n (c) Maximum Payable Days. As of the end of each fiscal quarter, the
\nproduct of (i) the quotient of (A) the accounts payable (excluding accounts
\npayable in respect of general administration and marketing to the extent not
\nincluded in cost of goods sold as reported per GAAP) of the Borrower as of the
\nend of such fiscal quarter divided by (B) the product of (I) the cost of goods
\nsold as reported per GAAP by the Borrower for such fiscal quarter and to be
\ndisclosed in financials to be filed with the SEC times (II) 4 times (ii) 365,
\nshall be equal to or less than 100.<\/p>\n
(d) Capital Expenditures\/Acquisitions. (i) Without duplication, the
\naggregate capital expenditures made, Acquisitions consummated, and Special
\nInvestments made pursuant to Section 7.4(e), by the Borrower and its
\nSubsidiaries, shall not exceed in any fiscal year the Capital Expenditure
\nComponent plus [ * ] (excluding any Equity Consideration paid in connection
\ntherewith). (ii) Capital expenditures (excluding Acquisitions) made by the
\nBorrower and its Subsidiaries, in the aggregate, in any fiscal year, shall not
\nexceed the Capital Expenditure Component for such fiscal year; (iii) The
\naggregate amount, without duplication, of Acquisitions consummated and Special
\nInvestments made by the Borrower and its Subsidiaries in the aggregate for any
\nfiscal year shall not exceed [ * ]; it being understood that the use of common
\nstock, $0.01 par value, of the Borrower, to consummate Acquisitions shall not be
\nlimited (including as specified in the parenthetical clause at the end of
\nsubsection (d)(i) above).<\/p>\n
7.15 SUBORDINATED DEBT<\/p>\n
Not, and not permit any of its Subsidiaries to:<\/p>\n
(a) subject to clause (c) below, make any payment (whether of
\nprincipal, interest or otherwise) on any Subordinated Debt on any day other than
\nthe stated, scheduled date for such payment set forth in the documents and
\ninstruments evidencing such Subordinated Debt (which shall in all cases for
\nprincipal be at least 45 days later than the Maturity Date);<\/p>\n
(b) make any payment on any Subordinated Debt in contravention or
\nviolation of the subordination provisions thereof; or<\/p>\n
(c) prepay, redeem, purchase or defease any Subordinated Debt, or
\nmake any deposit for any of the foregoing purposes; or<\/p>\n
———–<\/p>\n
[ * ] Confidential Treatment Requested<\/p>\n
-61-<\/p>\n
68
\n (d) enter into any amendment or modification of any Subordinated
\nDebt.<\/p>\n
7.16 NON-MATERIAL SUBSIDIARIES<\/p>\n
The Borrower shall not permit (i) the total (gross) revenues of all
\nNon-Material Subsidiaries in the aggregate for the preceding four fiscal quarter
\nperiod to exceed [ * ] of total (gross) revenues of the Borrower and all its
\nSubsidiaries for such period or (ii) total assets, as of the last day of the
\npreceding fiscal quarter, with a net book value in excess of [ * ] of the total
\nnet book value of total assets of the Borrower and all its Subsidiaries, in each
\ncase, based upon the Borrower’s most recent annual or quarterly financial
\nstatements delivered to the Agent under Section 6.1; provided, that the Borrower
\nshall have the power to designate in writing to the Agent any Non-Material
\nSubsidiary as a Material Subsidiary, subject to all provisions in this Agreement
\nconcerning Material Subsidiaries, (within three days of determining
\nnon-compliance with this Section 7.16) for the purposes of complying with this
\nSection 7.16; provided further any Subsidiary which is acquired or formed in
\nconnection with a permitted Acquisition or otherwise has been a Subsidiary of
\nthe Borrower for less than four fiscal quarters shall, for purposes of the
\nforegoing tests, include its financial results for the relevant fiscal quarters
\n(i.e., those necessary to report four fiscal quarters of revenues) prior to
\nbecoming a Subsidiary of the Borrower, as if such Subsidiary had become a
\nSubsidiary of the Borrower at the beginning of such four fiscal quarter period.
\nSubject to the foregoing and delivery of the certificate called for in Section
\n6.2, the Borrower may from time to time designate Subsidiaries as Non-Material
\nSubsidiaries.<\/p>\n
ARTICLE VIII
\n EVENTS OF DEFAULT<\/p>\n
8.1 EVENT OF DEFAULT<\/p>\n
Any of the following shall constitute an “Event of Default”:<\/p>\n
(a) Non-Payment. The Borrower fails to pay, (i) when and as
\nrequired to be paid herein, any amount of principal of any Loan, or (ii) within
\n5 days after the same becomes due, any interest, fee or any other amount payable
\nhereunder or under any other Loan Document; or<\/p>\n
————<\/p>\n
[ * ] Confidential Treatment Requested<\/p>\n
-62-<\/p>\n
69
\n (b) Representation or Warranty. Any representation or warranty by
\nthe Borrower or any Subsidiary made or deemed made herein, in any other Loan
\nDocument, or which is contained in any certificate, document or financial or
\nother statement by the Borrower, any Subsidiary, or any Responsible Officer,
\nfurnished at any time under this Agreement, or in or under any other Loan
\nDocument, is incorrect in any material respect on or as of the date made or
\ndeemed made; or<\/p>\n
(c) Specific Defaults. (i) The Borrower fails to perform or
\nobserve any term, covenant or agreement contained in any of Section 6.1, 6.2,
\n6.3, or 6.6 or in Article VII other than Sections 7.6 and 7.13; provided,
\nfailure to promptly notify the Agent of a non-material Default shall not
\nconstitute an Event of Default if the underlying event giving rise to such
\nDefault has been cured or waived; or (ii) the Borrower fails to perform or
\nobserve any term, covenant or agreement contained in Section 6.9 and such
\ndefault shall continue unremedied for a period of 3 days; or<\/p>\n
(d) Other Defaults. The Borrower or any Subsidiary party thereto
\nfails to perform or observe any other term or covenant contained in this
\nAgreement or any other Loan Document, and such default shall continue unremedied
\nfor a period of 20 days (or such longer period of time of not more than 45 days
\nas is reasonably necessary to cure provided that the Borrower is diligently
\npursuing a cure and then only if the cure can reasonably be effected during such
\nextended period) after the earlier of (i) the date upon which a Responsible
\nOfficer knew or reasonably should have known of such failure or (ii) the date
\nupon which written notice thereof is given to the Borrower by the Agent or any
\nLender; provided in the case of Warrants, such default shall exist with respect
\nto or be asserted by, a holder thereof which is a Lender or an Affiliate of a
\nLender; or<\/p>\n
(e) Cross-Default. The Borrower or any Subsidiary (i) fails to
\nmake any payment in respect of any Indebtedness or Contingent Obligation having
\nan aggregate principal amount (including undrawn committed or available amounts
\nand including amounts owing to all creditors under any combined or syndicated
\ncredit arrangement) of more than $1,000,000 when due (whether by scheduled
\nmaturity, required prepayment, acceleration, demand, or otherwise) and such
\nfailure continues after the applicable grace or notice period, if any, specified
\nin the relevant document on the date of such failure; or (ii) fails to perform
\nor observe any other condition or covenant, or any other event shall occur or
\ncondition exist, under any agreement or instrument relating to any such
\nIndebtedness or Contingent Obligation, and such failure continues after the
\napplicable grace or notice period, if any, specified in the relevant document on
\nthe date of such failure, if the effect of such failure, event or condition is
\nto cause, or to permit the holder or holders of such Indebtedness or beneficiary
\nor beneficiaries of such Indebtedness (or a trustee or agent on behalf of <\/p>\n
-63-<\/p>\n
70
\nsuch holder or holders or beneficiary or beneficiaries) to cause such
\nIndebtedness to be declared to be due and payable prior to its stated maturity,
\nor such Contingent Obligation to become payable or cash collateral in respect
\nthereof to be demanded; provided, in the case of undrawn committed facilities
\nwhich have not been terminated by the parties (other than the Borrower or its
\nSubsidiaries) thereto, the Borrower shall have ten (10) days to either cure the
\nunderlying default or terminate such facility; or<\/p>\n
(f) Insolvency; Voluntary Proceedings. The Borrower or any
\nSubsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
\nadmits in writing its inability to pay, its debts as they become due, subject to
\napplicable grace periods, if any, whether at stated maturity or otherwise; (ii)
\nvoluntarily ceases to conduct its business in the ordinary course; (iii)
\ncommences any Insolvency Proceeding with respect to itself; or (iv) takes any
\naction to effectuate or authorize any of the foregoing; or<\/p>\n
(g) Involuntary Proceedings. (i) Any involuntary Insolvency
\nProceeding is commenced or filed against the Borrower or any Subsidiary, or any
\nwrit, judgment, warrant of attachment, execution or similar process, is issued
\nor levied against a substantial part of the Borrower’s or any Subsidiary’s
\nproperties, and any such proceeding or petition shall not be dismissed, or such
\nwrit, judgment, warrant of attachment, execution or similar process shall not be
\nreleased, vacated or fully bonded within 60 days after commencement, filing or
\nlevy; (ii) the Borrower or any Subsidiary admits the material allegations of a
\npetition against it in any Insolvency Proceeding, or an order for relief (or
\nsimilar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
\n(iii) the Borrower or any Subsidiary acquiesces in the appointment of a
\nreceiver, trustee, custodian, conservator, liquidator, mortgagee in possession
\n(or agent therefor), or other similar Person for itself or a substantial portion
\nof its property or business; or<\/p>\n
(h) ERISA. (i) An ERISA Event shall occur with respect to a
\nPension Plan or Multiemployer Plan which has resulted or could reasonably be
\nexpected to result in liability of the Borrower under Title IV of ERISA to the
\nPension Plan, Multiemployer Plan or the PBGC in an aggregate amount in excess of
\n$1,000,000; or (ii) the aggregate amount of Unfunded Pension Liability among all
\nPension Plans at any time exceeds $1,000,000; or (iii) the Borrower or any ERISA
\nAffiliate shall fail to pay when due, after the expiration of any applicable
\ngrace period, any installment payment with respect to its withdrawal liability
\nunder Section 4201 of ERISA under a Multiemployer Plan in an aggregate amount in
\nexcess of $1,000,000; or<\/p>\n
(i) Monetary Judgments. One or more non-interlocutory judgments,
\nnon-interlocutory orders, decrees or arbitration awards is entered against the
\nBorrower <\/p>\n
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71
\nor any Subsidiary involving in the aggregate a liability (i) (to the extent not
\ncovered by independent third-party insurance as to which the insurer does not
\ndispute coverage) as to any single or related series of transactions, incidents
\nor conditions, of $2,000,000 or more, or (ii) as to any single or related series
\nof transactions, incidents or conditions, of $10,000,000 or more (whether or not
\ncovered by third-party insurance as to which the insurer does not dispute
\ncoverage), and the same shall remain unvacated and unstayed pending appeal for a
\nperiod of 30 days after the entry thereof; or<\/p>\n
(j) Non-Monetary Judgments. Any non-monetary judgment, order or
\ndecree is entered against the Borrower or any Subsidiary which does or would
\nreasonably be expected to have a Material Adverse Effect, and there shall be any
\nperiod of 30 consecutive days during which a stay of enforcement of such
\njudgment or order, by reason of a pending appeal or otherwise, shall not be in
\neffect; or<\/p>\n
(k) Change of Control. There occurs any Change of Control which
\nshall have continued for three (3) days; or<\/p>\n
(l) Adverse Change. There occurs a Material Adverse Effect; or<\/p>\n
(m) Invalidity of Subordination Provisions. The subordination
\nprovisions of any agreement or instrument governing any Subordinated Debt is for
\nany reason revoked or invalidated, or otherwise cease to be in full force and
\neffect, the Borrower, its shareholders, or their Affiliates contest in any
\nmanner the validity or enforceability thereof or denies that it has any further
\nliability or obligation thereunder, or the Indebtedness hereunder is for any
\nreason subordinated or does not have the priority contemplated by this Agreement
\nor such subordination provisions; or<\/p>\n
(n) Collateral.<\/p>\n
(i) (A) Any provision of any Collateral Document shall for
\nany reason cease to be valid and binding on or enforceable in any material
\nrespect against the Borrower or any Subsidiary party thereto (other than
\nNon-Material Subsidiaries which do not have any material Collateral) or (B) the
\nBorrower or any Subsidiary shall state that any provision of any Collateral
\nDocument shall for any reason cease to be valid and binding on or enforceable
\nagainst the Borrower or any Subsidiary party thereto in writing or bring an
\naction to limit its obligations or liabilities thereunder; or<\/p>\n
(ii) any Collateral Document shall for any reason (other
\nthan pursuant to the terms thereof) cease to create a valid security interest in
\nthe Collateral purported to be covered thereby or such security interest shall
\nfor any reason cease to<\/p>\n
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72
\nbe a perfected and first priority security interest with respect to any material
\nitem of collateral subject only to Permitted Liens.<\/p>\n
8.2 REMEDIES<\/p>\n
If any Event of Default occurs, the Agent shall, at the request of, or
\nmay, with the consent of, the Required Lenders,<\/p>\n
(a) if the Closing Date has not occurred, declare the commitment
\nof each Lender to make Loans to be terminated, whereupon such commitments shall
\nbe terminated;<\/p>\n
(b) declare the unpaid principal amount of all outstanding Loans,
\nall interest accrued and unpaid thereon, and all other amounts owing or payable
\nhereunder or under any other Loan Document to be immediately due and payable,
\nwithout presentment, demand, protest or other notice of any kind, all of which
\nare hereby expressly waived by the Borrower; and<\/p>\n
(c) exercise on behalf of itself and the Lenders all rights and
\nremedies available to it and the Lenders under the Loan Documents or applicable
\nlaw;<\/p>\n
provided, however, that upon the occurrence of any event specified in subsection
\n(f) or (g) of Section 8.1 (in the case of clause (i) of subsection (g) upon the
\nexpiration of the 60-day period mentioned therein), the obligation of each
\nLender to make Loans shall automatically terminate and the unpaid principal
\namount of all outstanding Loans and all interest and other amounts as aforesaid
\nshall automatically become due and payable without further act of the Agent or
\nany Lender.<\/p>\n
8.3 RIGHTS NOT EXCLUSIVE<\/p>\n
The rights provided for in this Agreement and the other Loan Documents
\nare cumulative and are not exclusive of any other rights, powers, privileges or
\nremedies provided by law or in equity, or under any other instrument, document
\nor agreement now existing or hereafter arising.<\/p>\n
8.4 CERTAIN FINANCIAL COVENANT DEFAULTS<\/p>\n
In the event that, after taking into account any extraordinary charge to
\nearnings taken or to be taken as of the end of any fiscal period of the Borrower
\n(a “Charge”), and if solely by virtue of such Charge, there would exist an Event
\nof Default due to the breach of any of Section 7.14(b) as of such fiscal period
\nend date, such Event of Default shall be deemed to arise upon the earlier of (a)
\nthe date after such fiscal period end date on which the Borrower announces
\npublicly it will take, is taking or <\/p>\n
-66-<\/p>\n
73
\nhas taken such Charge (including an announcement in the form of a statement in a
\nreport filed with the SEC) or, if such announcement is made prior to such fiscal
\nperiod end date, the date that is such fiscal period end date, and (b) the date
\nthe Borrower delivers to the Agent its audited annual or unaudited quarterly
\nfinancial statements in respect of such fiscal period reflecting such Charge as
\ntaken.<\/p>\n
8.5 NON-MATERIAL SUBSIDIARIES<\/p>\n
Notwithstanding any provision hereof to the contrary, any non-compliance
\nby a Non-Material Subsidiary (or the failure of the Borrower to cause a
\nNon-Material Subsidiary to comply) with, or the occurrence with respect to, the
\nprovisions of Sections 5.16, 5.19, 6.7, 8.1(f) and 8.1(g) shall not constitute
\nan Event of Default unless such non-compliance could reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n
8.6 ACQUIRED SUBSIDIARIES<\/p>\n
Notwithstanding anything contained in Section 8.1(b) to the contrary,
\nthe failure of any representation or warranty contained herein or any of the
\nLoan Documents with respect to any Subsidiary which was acquired pursuant to an
\nAcquisition permitted hereunder to be correct in all material respects on or as
\nof the date made or deemed made, which failure relates solely to events,
\ncircumstances or conditions occurring or existing prior to such Acquisition,
\nshall not constitute a Default or Event of Default hereunder if the aggregate
\nliability or impairment to Collateral which could reasonably be expected to
\nresult from all such failures does not exceed $2,000,000.<\/p>\n
ARTICLE IX
\n THE AGENT<\/p>\n
9.1 APPOINTMENT AND AUTHORIZATION<\/p>\n
Each Lender hereby irrevocably (subject to Section 9.9) appoints,
\ndesignates and authorizes the Agent to take such action on its behalf under the
\nprovisions of this Agreement and each other Loan Document and to exercise such
\npowers and perform such duties as are expressly delegated to it by the terms of
\nthis Agreement or any other Loan Document, together with such powers as are
\nreasonably incidental thereto. Notwithstanding any provision to the contrary
\ncontained elsewhere in this Agreement or in any other Loan Document, the Agent
\nshall not have any duties or responsibilities, except those expressly set forth
\nherein, nor shall the Agent have or be deemed to have any fiduciary relationship
\nwith any Lender, and no implied covenants, <\/p>\n
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74
\nfunctions, responsibilities, duties, obligations or liabilities shall be read
\ninto this Agreement or any other Loan Document or otherwise exist against the
\nAgent.<\/p>\n
9.2 DELEGATION OF DUTIES<\/p>\n
The Agent may execute any of its duties under this Agreement or any
\nother Loan Document by or through agents, employees or attorneys-in-fact and
\nshall be entitled to advice of counsel concerning all matters pertaining to such
\nduties. The Agent shall not be responsible for the negligence or misconduct of
\nany agent or attorney-in-fact that it selects with reasonable care.<\/p>\n
9.3 LIABILITY OF AGENT<\/p>\n
None of the Agent-Related Persons shall (i) be liable for any action
\ntaken or omitted to be taken by any of them under or in connection with this
\nAgreement or any other Loan Document or the transactions contemplated hereby
\n(except for its own gross negligence or willful misconduct), or (ii) be
\nresponsible in any manner to any of the Lenders for any recital, statement,
\nrepresentation or warranty made by the Borrower or any Subsidiary or Affiliate
\nof the Borrower, or any officer thereof, contained in this Agreement or in any
\nother Loan Document, or in any certificate, report, statement or other document
\nreferred to or provided for in, or received by the Agent under or in connection
\nwith, this Agreement or any other Loan Document, or for the value of or title to
\nany Collateral, or the validity, effectiveness, genuineness, enforceability or
\nsufficiency of this Agreement or any other Loan Document, or for any failure of
\nthe Borrower or any other party to any Loan Document to perform its obligations
\nhereunder or thereunder. No Agent-Related Person shall be under any obligation
\nto any Lender to ascertain or to inquire as to the observance or performance of
\nany of the agreements contained in, or conditions of, this Agreement or any
\nother Loan Document, or to inspect the properties, books or records of the
\nBorrower or any of the Borrower’s Subsidiaries or Affiliates.<\/p>\n
9.4 RELIANCE BY AGENT<\/p>\n
(a) The Agent shall be entitled to rely, and shall be fully protected in
\nrelying, upon any writing, resolution, notice, consent, certificate, affidavit,
\nletter, telegram, facsimile, telex or telephone message, statement or other
\ndocument or conversation believed by it to be genuine and correct and to have
\nbeen signed, sent or made by the proper Person or Persons, and upon advice and
\nstatements of legal counsel (including counsel to the Borrower), independent
\naccountants and other experts selected by the Agent. The Agent shall be fully
\njustified in failing or refusing to take any action under this Agreement or any
\nother Loan Document unless it shall first receive such advice or concurrence of
\nthe Required Lenders as it deems <\/p>\n
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75
\nappropriate and, if it so requests, it shall first be indemnified to its
\nsatisfaction by the Lenders against any and all liability and expense which may
\nbe incurred by it by reason of taking or continuing to take any such action. The
\nAgent shall in all cases be fully protected in acting, or in refraining from
\nacting, under this Agreement or any other Loan Document in accordance with a
\nrequest or consent of the Required Lenders and such request and any action taken
\nor failure to act pursuant thereto shall be binding upon all of the Lenders.<\/p>\n
(b) For purposes of determining compliance with the conditions specified
\nin Section 4.1, each Lender that has executed this Agreement shall be deemed to
\nhave consented to, approved or accepted or to be satisfied with, each document
\nor other matter either sent by the Agent to such Lender for consent, approval,
\nacceptance or satisfaction, or required thereunder to be consented to or
\napproved by or acceptable or satisfactory to the Lender.<\/p>\n
9.5 NOTICE OF DEFAULT<\/p>\n
The Agent shall not be deemed to have knowledge or notice of the
\noccurrence of any Default or Event of Default, except with respect to defaults
\nin the payment of principal, interest and fees required to be paid to the Agent
\nfor the account of the Lenders, unless the Agent shall have received written
\nnotice from a Lender or the Borrower referring to this Agreement, describing
\nsuch Default or Event of Default and stating that such notice is a “notice of
\ndefault.” The Agent will notify the Lenders of its receipt of any such notice.
\nThe Agent shall take such action with respect to such Default or Event of
\nDefault as may be requested by the Required Lenders in accordance with Article
\nVIII; provided, however, that unless and until the Agent has received any such
\nrequest, the Agent may (but shall not be obligated to) take such action, or
\nrefrain from taking such action, with respect to such Default or Event of
\nDefault as it shall deem advisable or in the best interest of the Lenders.<\/p>\n
9.6 CREDIT DECISION<\/p>\n
Each Lender acknowledges that none of the Agent-Related Persons has made
\nany representation or warranty to it, and that no act by the Agent hereinafter
\ntaken, including any review of the affairs of the Borrower and its Subsidiaries,
\nshall be deemed to constitute any representation or warranty by any
\nAgent-Related Person to any Lender. Each Lender represents to the Agent that it
\nhas, independently and without reliance upon any Agent-Related Person and based
\non such documents and information as it has deemed appropriate, made its own
\nappraisal of and investigation into the business, prospects, operations,
\nproperty, financial and other condition and creditworthiness of the Borrower and
\nits Subsidiaries, the value of and title to any Collateral, and all applicable
\nbank regulatory laws relating to the transactions <\/p>\n
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76
\ncontemplated hereby, and made its own decision to enter into this Agreement and
\nto extend credit to the Borrower hereunder. Each Lender also represents that it
\nwill, independently and without reliance upon any Agent-Related Person and based
\non such documents and information as it shall deem appropriate at the time,
\ncontinue to make its own credit analysis, appraisals and decisions in taking or
\nnot taking action under this Agreement and the other Loan Documents, and to make
\nsuch investigations as it deems necessary to inform itself as to the business,
\nprospects, operations, property, financial and other condition and
\ncreditworthiness of the Borrower. Except for notices, reports and other
\ndocuments expressly herein required to be furnished to the Lenders by the Agent,
\nthe Agent shall not have any duty or responsibility to provide any Lender with
\nany credit or other information concerning the business, prospects, operations,
\nproperty, financial and other condition or creditworthiness of the Borrower
\nwhich may come into the possession of any of the Agent-Related Persons.<\/p>\n
9.7 INDEMNIFICATION OF AGENT<\/p>\n
Whether or not the transactions contemplated hereby are consummated, the
\nLenders shall indemnify upon demand the Agent-Related Persons (to the extent not
\nreimbursed by or on behalf of the Borrower and without limiting the obligation
\nof the Borrower to do so), pro rata, from and against any and all Indemnified
\nLiabilities; provided, however, that no Lender shall be liable for the payment
\nto the Agent-Related Persons of any portion of such Indemnified Liabilities
\nresulting solely from such Person’s gross negligence or willful misconduct.
\nWithout limitation of the foregoing, each Lender shall reimburse the Agent upon
\ndemand for its ratable share of any costs or out-of-pocket expenses (including
\nAttorney Costs) incurred by the Agent in connection with the preparation,
\nexecution, delivery, administration, modification, amendment or enforcement
\n(whether through negotiations, legal proceedings or otherwise) of, or legal
\nadvice in respect of rights or responsibilities under, this Agreement, any other
\nLoan Document, or any document contemplated by or referred to herein, to the
\nextent that the Agent is not reimbursed for such expenses by or on behalf of the
\nBorrower. The undertaking in this Section shall survive the payment of all
\nObligations hereunder and the resignation or replacement of the Agent.<\/p>\n
9.8 AGENT IN INDIVIDUAL CAPACITY<\/p>\n
Deutsche Bank and its Affiliates may make loans to, issue letters of
\ncredit for the account of, accept deposits from, acquire equity interests in and
\ngenerally engage in any kind of banking, trust, financial advisory, underwriting
\nor other business with the Borrower and its Subsidiaries and Affiliates as
\nthough Deutsche Bank were not the Agent hereunder and without notice to or
\nconsent of the Lenders. The Lenders acknowledge that, pursuant to such
\nactivities, Deutsche Bank or its Affiliates may <\/p>\n
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77
\nreceive information regarding the Borrower or its Affiliates (including
\ninformation that may be subject to confidentiality obligations in favor of the
\nBorrower or such Subsidiary) and acknowledge that the Agent shall be under no
\nobligation to provide such information to them. With respect to its Loans,
\nDeutsche Bank shall have the same rights and powers under this Agreement as any
\nother Lender and may exercise the same as though it were not the Agent, and the
\nterms “Lender” and “Lenders” include Deutsche Bank in its individual capacity.<\/p>\n
9.9 SUCCESSOR AGENT<\/p>\n
The Agent may, and at the request of the Required Lenders shall, resign
\nas Agent upon 30 days’ notice to the Lenders. If the Agent resigns under this
\nAgreement, the Required Lenders shall appoint from among the Lenders a successor
\nagent for the Lenders which successor agent shall, if no Default or Event of
\nDefault then exists, be approved by the Borrower. If no successor agent is
\nappointed prior to the effective date of the resignation of the Agent, the Agent
\nmay appoint, after consulting with the Lenders and the Borrower, a successor
\nagent from among the Lenders. Upon the acceptance of its appointment as
\nsuccessor agent hereunder, such successor agent shall succeed to all the rights,
\npowers and duties of the retiring Agent and the term “Agent” shall mean such
\nsuccessor agent and the retiring Agent’s appointment, powers and duties as Agent
\nshall be terminated. After any retiring Agent’s resignation hereunder as Agent,
\nthe provisions of this Article IX and Sections 10.4 and 10.5 shall inure to its
\nbenefit as to any actions taken or omitted to be taken by it while it was Agent
\nunder this Agreement. If no successor agent has accepted appointment as Agent by
\nthe date which is 30 days following a retiring Agent’s notice of resignation,
\nthe retiring Agent’s resignation shall nevertheless thereupon become effective
\nand the Lenders shall perform all of the duties of the Agent hereunder until
\nsuch time, if any, as the Required Lenders appoint a successor agent as provided
\nfor above.<\/p>\n
9.10 WITHHOLDING TAX<\/p>\n
(a) If any Lender is a “foreign corporation, partnership or trust”
\nwithin the meaning of the Code and such Lender claims exemption from, or a
\nreduction of, U.S. withholding tax under Sections 1441 or 1442 of the Code, such
\nLender agrees with and in favor of the Agent, to deliver to the Agent:<\/p>\n
(i) if such Lender claims an exemption from, or a reduction of,
\nwithholding tax under a United States tax treaty, properly completed IRS Forms
\n1001 and W-8 before the payment of any interest in the first calendar year and
\nbefore the payment of any interest in each third succeeding calendar year during
\nwhich interest may be paid under this Agreement;<\/p>\n
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78
\n (ii) if such Lender claims that interest paid under this Agreement
\nis exempt from United States withholding tax because it is effectively connected
\nwith a United States trade or business of such Lender, two properly completed
\nand executed copies of IRS Form 4224 before the payment of any interest is due
\nin the first taxable year of such Lender and in each succeeding taxable year of
\nsuch Lender during which interest may be paid under this Agreement, and IRS Form
\nW-9; and<\/p>\n
(iii) such other form or forms as may be required under the Code or
\nother laws of the United States as a condition to exemption from, or reduction
\nof, United States withholding tax.<\/p>\n
Such Lender agrees to promptly notify the Agent of any change in
\ncircumstances which would modify or render invalid any claimed exemption or
\nreduction.<\/p>\n
(b) If any Lender claims exemption from, or reduction of, withholding
\ntax under a United States tax treaty by providing IRS Form 1001 and such Lender
\nsells, assigns, grants a participation in, or otherwise transfers all or part of
\nthe Obligations of the Borrower to such Lender, such Lender agrees to notify the
\nAgent of the percentage amount in which it is no longer the beneficial owner of
\nObligations of the Borrower to such Lender. To the extent of such percentage
\namount, the Agent will treat such Lender’s IRS Form 1001 as no longer valid.<\/p>\n
(c) If any Lender claiming exemption from United States withholding tax
\nby filing IRS Form 4224 with the Agent sells, assigns, grants a participation
\nin, or otherwise transfers all or part of the Obligations of the Borrower to
\nsuch Lender, such Lender agrees to undertake sole responsibility for complying
\nwith the withholding tax requirements imposed by Sections 1441 and 1442 of the
\nCode.<\/p>\n
(d) If any Lender is entitled to a reduction in the applicable
\nwithholding tax, the Agent may withhold from any interest payment to such Lender
\nan amount equivalent to the applicable withholding tax after taking into account
\nsuch reduction. If the forms or other documentation required by subsection (a)
\nof this Section are not delivered to the Agent, then the Agent may withhold from
\nany interest payment to such Lender not providing such forms or other
\ndocumentation an amount equivalent to the applicable withholding tax.<\/p>\n
(e) If the IRS or any other Governmental Authority of the United States
\nor other jurisdiction asserts a claim that the Agent did not properly withhold
\ntax from amounts paid to or for the account of any Lender (because the
\nappropriate form was not delivered, was not properly executed, or because such
\nLender failed to notify the Agent of a change in circumstances which rendered
\nthe exemption from, or reduction <\/p>\n
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79
\nof, withholding tax ineffective, or for any other reason) such Lender shall
\nindemnify the Agent fully for all amounts paid, directly or indirectly, by the
\nAgent as tax or otherwise, including penalties and interest, and including any
\ntaxes imposed by any jurisdiction on the amounts payable to the Agent under this
\nSection, together with all costs and expenses (including Attorney Costs). The
\nobligation of the Lenders under this subsection shall survive the payment of all
\nObligations and the resignation or replacement of the Agent.<\/p>\n
9.11 COLLATERAL MATTERS<\/p>\n
(a) The Agent is authorized on behalf of all the Lenders, without the
\nnecessity of any notice to or further consent from the Lenders, from time to
\ntime to take any action with respect to any Collateral or the Collateral
\nDocuments which may be necessary to perfect and maintain perfected the security
\ninterest in and Liens upon the Collateral granted pursuant to the Collateral
\nDocuments.<\/p>\n
(b) The Lenders irrevocably authorize the Agent, at its option and in
\nits discretion, to release any Lien granted to or held by the Agent upon any
\nCollateral (i) upon termination of the Commitments and payment in full of all
\nLoans and all other Obligations known to the Agent and payable under this
\nAgreement or any other Loan Document; (ii) constituting property sold or to be
\nsold or disposed of as part of or in connection with any disposition permitted
\nhereunder; (iii) constituting property in which the Borrower or any Subsidiary
\nowned no interest at the time the Lien was granted or at any time thereafter;
\n(iv) constituting property leased to the Borrower or any Subsidiary under a
\nlease which has expired or been terminated in a transaction permitted under this
\nAgreement or is about to expire and which has not been, and is not intended by
\nthe Borrower or such Subsidiary to be, renewed or extended; (v) consisting of an
\ninstrument evidencing Indebtedness or other debt instrument, if the indebtedness
\nevidenced thereby has been paid in full; or (vi) if approved, authorized or
\nratified in writing by the Required Lenders or all the Lenders, as the case may
\nbe, as provided in subsection 10.1(f). Upon request by the Agent at any time,
\nthe Lenders will confirm in writing the Agent’s authority to release particular
\ntypes or items of Collateral pursuant to this subsection 9.11(b).<\/p>\n
(c) Each Lender agrees with and in favor of each other (which agreement
\nshall not be for the benefit of the Borrower or any Subsidiary) that the
\nBorrower’s obligation to such Lender under this Agreement and the other Loan
\nDocuments is not and shall not be secured by any real property collateral now or
\nhereafter acquired by such Lender.<\/p>\n
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80
\n ARTICLE X
\n MISCELLANEOUS<\/p>\n
10.1 AMENDMENTS AND WAIVERS<\/p>\n
No amendment or waiver of any provision of this Agreement or any other
\nLoan Document, and no consent with respect to any departure by the Borrower or
\nany applicable Subsidiary therefrom, shall be effective unless the same shall be
\nin writing and signed by the Required Lenders (or by the Agent at the written
\nrequest of the Required Lenders) and the Borrower and acknowledged by the Agent,
\nand then any such waiver or consent shall be effective only in the specific
\ninstance and for the specific purpose for which given; provided, however, that
\nno such waiver, amendment, or consent shall, unless in writing and signed by all
\nthe Lenders and the Borrower and acknowledged by the Agent, do any of the
\nfollowing:<\/p>\n
(a) increase or extend the Commitment of any Lender (or reinstate
\nany Commitment terminated pursuant to Section 8.2), unless such Lender has
\nconsented thereto in writing;<\/p>\n
(b) postpone or delay any date fixed by this Agreement or any
\nother Loan Document for any payment (including without limit mandatory
\nprepayments) of principal, interest, fees or other amounts due to the Lenders
\n(or any of them) hereunder or under any other Loan Document;<\/p>\n
(c) reduce the principal of, or the rate of interest specified
\nherein on any Loan, or (subject to clause (ii) below) any fees or other amounts
\npayable hereunder or under any other Loan Document;<\/p>\n
(d) change the percentage of the Commitments or of the aggregate
\nunpaid principal amount of the Loans which is required for the Lenders or any of
\nthem to take any action hereunder; or<\/p>\n
(e) amend the definition of “Required Lenders,” this Section, or
\nSection 2.13, or any provision herein providing for consent or other action by
\nall Lenders; or<\/p>\n
(f) release any material portion of the Collateral except as
\notherwise may be provided in a Loan Document or except where the consent of the
\nRequired Lenders only is specifically provided for;<\/p>\n
and, provided further, that (i) no amendment, waiver or consent shall, unless in
\nwriting and signed by the Agent in addition to the Required Lenders or all the
\nLenders, as the case may be, affect the rights or duties of the Agent under this<\/p>\n
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81
\nAgreement or any other Loan Document, and (ii) the Commitment Letter may be
\namended, or rights or privileges thereunder waived, in a writing executed by the
\nparties thereto.<\/p>\n
10.2 NOTICES<\/p>\n
(a) All notices, requests and other communications shall be in writing
\n(including, unless the context expressly otherwise provides, by facsimile
\ntransmission, provided that any matter transmitted by the Borrower by facsimile
\n(i) shall be immediately confirmed by a telephone call to the recipient at the
\nnumber specified on Schedule 10.2, and (ii) shall be followed promptly by
\ndelivery of a hard copy original thereof) and mailed, faxed or delivered, to the
\naddress or facsimile number specified for notices on Schedule 10.2; or, as
\ndirected to the Borrower or the Agent, to such other address as shall be
\ndesignated by such party in a written notice to the other parties, and as
\ndirected to any other party, at such other address as shall be designated by
\nsuch party in a written notice to the Borrower and the Agent.<\/p>\n
(b) All such notices, requests and communications shall, when
\ntransmitted by overnight delivery, or faxed, be effective when delivered for
\novernight (next-day) delivery, or transmitted in legible form by facsimile
\nmachine, respectively, or if mailed, upon the third Business Day after the date
\ndeposited into the U.S. mail, or if delivered, upon delivery; except that
\nnotices pursuant to Article II or IX shall not be effective until actually
\nreceived by the Agent.<\/p>\n
(c) Any agreement of the Agent and the Lenders herein to receive certain
\nnotices by telephone or facsimile is solely for the convenience and at the
\nrequest of the Borrower. The Agent and the Lenders shall be entitled to rely on
\nthe authority of any Person purporting to be a Person authorized by the Borrower
\nto give such notice and the Agent and the Lenders shall not have any liability
\nto the Borrower or other Person on account of any action taken or not taken by
\nthe Agent or the Lenders in reliance upon such telephonic or facsimile notice.
\nThe obligation of the Borrower to repay the Loans shall not be affected in any
\nway or to any extent by any failure by the Agent and the Lenders to receive
\nwritten confirmation of any telephonic or facsimile notice or the receipt by the
\nAgent and the Lenders of a confirmation which is at variance with the terms
\nunderstood by the Agent and the Lenders to be contained in the telephonic or
\nfacsimile notice.<\/p>\n
10.3 NO WAIVER; CUMULATIVE REMEDIES<\/p>\n
No failure to exercise and no delay in exercising, on the part of the
\nAgent or any Lender, any right, remedy, power or <\/p>\n
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82
\nprivilege hereunder, shall operate as a waiver thereof; nor shall any single or
\npartial exercise of any right, remedy, power or privilege hereunder preclude any
\nother or further exercise thereof or the exercise of any other right, remedy,
\npower or privilege.<\/p>\n
10.4 COSTS AND EXPENSES<\/p>\n
The Borrower shall:<\/p>\n
(a) whether or not the transactions contemplated hereby are
\nconsummated, pay or reimburse Deutsche Bank (including in its capacity as Agent)
\nwithin five Business Days after demand (subject to subsection 4.1(e)) for all
\nreasonable costs and expenses incurred by Deutsche Bank (including in its
\ncapacity as Agent) in connection with the development, preparation, delivery,
\nadministration and execution of, and any amendment, supplement, waiver or
\nmodification to (in each case, whether or not consummated), this Agreement, any
\nLoan Document and any other documents prepared in connection herewith or
\ntherewith, and the consummation of the transactions contemplated hereby and
\nthereby, including reasonable Attorney Costs incurred by Deutsche Bank
\n(including in its capacity as Agent) with respect thereto, but excluding
\nprinting, duplicating, mailing and travel costs related to the syndication of
\nthe Loans; and<\/p>\n
(b) pay or reimburse the Agent, the Arranger and each Lender
\nwithin five Business Days after demand (subject to subsection 4.1(e)) for all
\ncosts and expenses (including reasonable Attorney Costs) incurred by them in
\nconnection with the enforcement, attempted enforcement, or preservation of any
\nrights or remedies under this Agreement or any other Loan Document during the
\nexistence of an Event of Default or after acceleration of the Loans (including
\nin connection with any “workout” or restructuring regarding the Loans, and
\nincluding in any Insolvency Proceeding or appellate proceeding); and<\/p>\n
(c) pay or reimburse Deutsche Bank (including in its capacity as
\nAgent) within five Business Days after demand (subject to subsection 4.1(e)) for
\nall appraisal (including the allocated cost of internal appraisal services),
\naudit, environmental inspection and review (including the allocated cost of such
\ninternal services), search and filing costs, fees and expenses, incurred or
\nsustained by Deutsche Bank (including in its capacity as Agent) in connection
\nwith the matters referred to under subsections (a) and (b) of this Section.<\/p>\n
10.5 BORROWER INDEMNIFICATION<\/p>\n
(a) Whether or not the transactions contemplated hereby are consummated,
\nthe Borrower shall indemnify, defend and hold the Agent-Related Persons, and
\neach Lender and each of its respective officers, directors, employees, counsel,
\nagents and <\/p>\n
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83
\nattorneys-in-fact (each, an “Indemnified Person”) harmless from and against any
\nand all liabilities, obligations, losses, damages, penalties, actions,
\njudgments, suits, costs, charges, expenses and disbursements (including
\nreasonable Attorney Costs) of any kind or nature whatsoever which may at any
\ntime (including at any time following repayment of the Loans and the
\ntermination, resignation or replacement of the Agent or replacement of any
\nLender) be imposed on, incurred by or asserted against any such Person in any
\nway relating to or arising out of this Agreement or any document contemplated by
\nor referred to herein, or the transactions contemplated hereby, or any action
\ntaken or omitted by any such Person under or in connection with any of the
\nforegoing, including with respect to any investigation, litigation or proceeding
\n(including any Insolvency Proceeding or appellate proceeding) related to or
\narising out of this Agreement or the Loans or the use of the proceeds thereof,
\nwhether or not any Indemnified Person is a party thereto (all the foregoing,
\ncollectively, the “Indemnified Liabilities”); provided, that the Borrower shall
\nhave no obligation hereunder to any Indemnified Person with respect to
\nIndemnified Liabilities resulting solely from the gross negligence or willful
\nmisconduct of or from a breach of contract by such Indemnified Person. The
\nagreements in this Section shall survive payment of all other Obligations.<\/p>\n
(c) Survival; Defense. The obligations in this Section shall survive
\npayment of all other Obligations. At the election of any Indemnified Person, the
\nBorrower shall defend such Indemnified Person using legal counsel reasonably
\nsatisfactory to such Indemnified Person in such Person’s sole discretion, at the
\nsole cost and expense of the Borrower. All amounts owing under this Section
\nshall be paid within 30 days after demand.<\/p>\n
10.6 MARSHALLING; PAYMENTS SET ASIDE<\/p>\n
Neither the Agent nor the Lenders shall be under any obligation to
\nmarshall any assets in favor of the Borrower or any other Person or against or
\nin payment of any or all of the Obligations. To the extent that the Borrower
\nmakes a payment to the Agent or the Lenders, or the Agent or the Lenders
\nexercise their right of set-off, and such payment or the proceeds of such
\nset-off or any part thereof are subsequently invalidated, declared to be
\nfraudulent or preferential, set aside or required (including pursuant to any
\nsettlement entered into by the Agent or such Lender in its discretion) to be
\nrepaid to a trustee, receiver or any other party, in connection with any
\nInsolvency Proceeding or otherwise, then (a) to the extent of such recovery the
\nobligation or part thereof originally intended to be satisfied shall be revived
\nand continued in full force and effect as if such payment had not been made or
\nsuch set-off had not occurred, and (b) each Lender severally agrees to pay to
\nthe Agent upon demand its pro rata share of any amount so recovered from or
\nrepaid by the Agent.<\/p>\n
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84
\n10.7 SUCCESSORS AND ASSIGNS<\/p>\n
The provisions of this Agreement shall be binding upon and inure to the
\nbenefit of the parties hereto and their respective successors and assigns,
\nexcept that the Borrower may not assign or transfer any of its rights or
\nobligations under this Agreement without the prior written consent of the Agent
\nand each Lender.<\/p>\n
10.8 ASSIGNMENTS, PARTICIPATIONS, ETC.<\/p>\n
(a) Any Lender may, with the written consent of the Agent and the
\nBorrower which shall not be unreasonably withheld, at any time assign and
\ndelegate to one or more Eligible Assignees (provided that no written consent of
\nthe Agent or the Borrower shall be required in connection with any assignment
\nand delegation by a Lender to an Eligible Assignee that is an Affiliate of such
\nLender or to another Lender; provided, further, no Borrower consent shall be
\nrequired if there is a continuing Default or an Event of Default) (each an
\n“Assignee”) all, or any ratable part of all, of the Loans, the Commitments and
\nthe other rights and obligations of such Lender hereunder, in a minimum amount
\nof $5,000,000; provided, however, that the Borrower and the Agent may continue
\nto deal solely and directly with such Lender in connection with the interest so
\nassigned to an Assignee until (i) written notice of such assignment, together
\nwith payment instructions, addresses and related information with respect to the
\nAssignee, shall have been given to the Borrower and the Agent by such Lender and
\nthe Assignee; (ii) such Lender and its Assignee shall have delivered to the
\nBorrower and the Agent an Assignment and Acceptance in the form of Exhibit D
\n(“Assignment and Acceptance”) together with any Note or Notes subject to such
\nassignment and (iii) the assignor Lender or Assignee has paid to the Agent a
\nprocessing fee in the amount of $3,500.<\/p>\n
(b) From and after the date that the Agent notifies the assignor Lender
\nthat the proposed assignee is an approved Eligible Assignee (to the extent
\napproval is necessary), that it has received (and provided its consent with
\nrespect to) an executed Assignment and Acceptance and payment of the
\nabove-referenced processing fee, (i) the Assignee thereunder shall be a party
\nhereto and, to the extent that rights and obligations hereunder have been
\nassigned to it pursuant to such Assignment and Acceptance, shall have the rights
\nand obligations of a Lender under the Loan Documents, and (ii) the assignor
\nLender shall, to the extent that rights and obligations hereunder and under the
\nother Loan Documents have been assigned by it pursuant to such Assignment and
\nAcceptance, relinquish its rights and be released from its obligations under the
\nLoan Documents.<\/p>\n
(c) Within five Business Days after its receipt of notice by the Agent
\nthat it has received an executed Assignment and Acceptance and payment of the
\nprocessing <\/p>\n
-78-<\/p>\n
85
\nfee, the Borrower shall execute and deliver to the Agent, new Notes evidencing
\nsuch Assignee’s assigned Loans and Commitment and, if the assignor Lender has
\nretained a portion of its Loans and its Commitment, replacement Notes in the
\nprincipal amount of the Loans retained by the assignor Lender (such Notes to be
\nin exchange for, but not in payment of, the Notes held by such Lender).
\nImmediately upon each Assignee’s making its processing fee payment under the
\nAssignment and Acceptance, this Agreement shall be deemed to be amended to the
\nextent, but only to the extent, necessary to reflect the addition of the
\nAssignee and the resulting adjustment of the Commitments arising therefrom. The
\nCommitment allocated to each Assignee shall reduce such Commitments of the
\nassigning Lender pro tanto.<\/p>\n
(d) Any Lender may at any time sell to one or more commercial banks or
\nother Persons not Affiliates of the Borrower (a “Participant”) participating
\ninterests in any Loans, the Commitment of that Lender and the other interests of
\nthat Lender (the “originating Lender”) hereunder and under the other Loan
\nDocuments; provided, however, that (i) the originating Lender’s obligations
\nunder this Agreement shall remain unchanged, (ii) the originating Lender shall
\nremain solely responsible for the performance of such obligations, (iii) the
\nBorrower and the Agent shall continue to deal solely and directly with the
\noriginating Lender in connection with the originating Lender’s rights and
\nobligations under this Agreement and the other Loan Documents, (iv) no Lender
\nshall transfer or grant any participating interest under which the Participant
\nhas rights to approve any amendment to, or any consent or waiver with respect
\nto, this Agreement or any other Loan Document, except to the extent such
\namendment, consent or waiver would require unanimous consent of the Lenders as
\ndescribed in the first proviso to Section 10.1, and (v) each such participation
\nshall be in an aggregate principal amount of at least $3,000,000 (or such lesser
\namount as shall equal the portion of the originating Lender’s Loans for which
\nparticipating interests have not been sold hereunder). In the case of any such
\nparticipation, the Participant shall be entitled to the benefit of Sections 3.1,
\n3.3 and 10.5 as though it were also a Lender hereunder, and if amounts
\noutstanding under this Agreement are due and unpaid, or shall have been declared
\nor shall have become due and payable upon the occurrence of an Event of Default,
\neach Participant shall be deemed to have the right of set-off in respect of its
\nparticipating interest in amounts owing under this Agreement to the same extent
\nas if the amount of its participating interest were owing directly to it as a
\nLender under this Agreement.<\/p>\n
(e) Notwithstanding any other provision in this Agreement, any Lender
\nmay at any time create a security interest in, or pledge, all or any portion of
\nits rights under and interest in this Agreement and the Note held by it in favor
\nof any Federal Reserve Bank in accordance with Regulation A of the FRB or U.S.
\nTreasury Regulation 31 <\/p>\n
-79-<\/p>\n
86
\nCFR Section 203.14, and such Federal Reserve Bank may enforce such pledge or
\nsecurity interest in any manner permitted under applicable law.<\/p>\n
10.9 CONFIDENTIALITY<\/p>\n
Agent and each Lender agree to take and to cause their Affiliates to
\ntake normal and reasonable precautions and exercise due care to maintain the
\nconfidentiality of all information identified as “confidential” or “secret” by
\nthe Borrower as well as information that, given its nature, should reasonably be
\nbelieved by such Persons to be confidential, provided to them by the Borrower or
\nany Subsidiary, or by the Agent on such Borrower’s or Subsidiary’s behalf, under
\nthis Agreement or any other Loan Document. Neither the Agent, the Lender nor any
\nof their Affiliates shall use any such information other than in connection with
\nor in enforcement of this Agreement and the other Loan Documents or to the
\nextent such information (i) was or becomes generally available to the public
\nother than as a result of disclosure by the Agent, such Lender, or their
\nrespective Affiliate or (ii) was or becomes available on a non-confidential
\nbasis from a source other than the Borrower or a Subsidiary, provided that such
\nsource is not bound by a confidentiality agreement with the Borrower or a
\nSubsidiary known to the Agent, such Lender, or their respective Affiliate;
\nprovided, however, that the Agent, any Lender, or any of their respective
\nAffiliates may disclose such information at the request or pursuant to any
\nrequirement of any Governmental Authority to which the Lender is subject or in
\nconnection with an examination of such Lender by any such authority (with
\nsubsequent notice thereof promptly given to the Borrower) or, after having given
\nnotice to the Borrower (unless such notice is prohibited by law) and reasonable
\nopportunity, in light of the circumstances, for the Borrower to obtain a
\nconfidentiality agreement or a protective order (substantively similar to the
\nrequirements herein), as appropriate, (A) pursuant to subpoena or other court
\nprocess; (B) when required to do so in accordance with the provisions of any
\napplicable Requirement of Law; (C) to the extent reasonably required in
\nconnection with any litigation or proceeding to which the Agent, any Lender or
\ntheir respective Affiliates may be party; (D) to the extent reasonably required
\nin connection with the exercise of any remedy hereunder or under any other Loan
\nDocument; provided, further, that the Agent, any Lender, or any of their
\nrespective Affiliates may disclose such information (W) to such Lender’s
\nindependent auditors and other professional advisors; (X) to any Participant or
\nAssignee, actual or potential, provided that such Person agrees in writing for
\nthe express benefit of the Borrower to keep such information confidential to the
\nsame extent required of the Lenders hereunder; (Y) as to any Lender or its
\nAffiliate, as expressly permitted under the terms of any other document or
\nagreement regarding confidentiality to which the Borrower or any Subsidiary is
\nparty or is deemed party with such Lender or such Affiliate; and (Z) to its
\nAffiliates; however, in each of the <\/p>\n
-80-<\/p>\n
87
\nforegoing clauses (W) through (Z), (i) the agreement referred to in clause (Y)
\nis made for the express benefit of the Borrower; (ii) disclosure to any Person
\nis prohibited unless the Agent or such Lender believes in good faith that such
\nPerson is not a competitor of the Borrower; and (iii) any disclosure made in
\naccordance with the foregoing clauses (W) through (Z) is made to Persons only on
\na need-to-know basis.<\/p>\n
10.10 SET-OFF<\/p>\n
In addition to any rights and remedies of the Lenders provided by law,
\nif an Event of Default exists or the Loans have been accelerated, each Lender is
\nauthorized at any time and from time to time, without prior notice to the
\nBorrower, any such notice being waived by the Borrower to the fullest extent
\npermitted by law, to set off and apply any and all deposits (general or special,
\ntime or demand, provisional or final) at any time held by, and other
\nindebtedness at any time owing by, such Lender to or for the credit or the
\naccount of the Borrower against any and all Obligations owing to such Lender,
\nnow or hereafter existing, irrespective of whether or not the Agent or such
\nLender shall have made demand under this Agreement or any Loan Document and
\nalthough such Obligations may be contingent or unmatured. Each Lender agrees
\npromptly to notify the Borrower and the Agent after any such set-off and
\napplication made by such Lender; provided, however, that the failure to give
\nsuch notice shall not affect the validity of such set-off and application.<\/p>\n
10.11 AUTOMATIC DEBITS OF FEES<\/p>\n
With respect to any arrangement fee, underwriting fee or other fee, or
\nany other cost or expense (including Attorney Costs) due and payable to the
\nAgent, Deutsche Bank or the Arranger under the Loan Documents, the Borrower
\nhereby irrevocably authorizes Deutsche Bank to debit any deposit account of the
\nBorrower with Deutsche Bank in an amount such that the aggregate amount debited
\nfrom all such deposit accounts does not exceed such fee or other cost or
\nexpense. If there are insufficient funds in such deposit accounts to cover the
\namount of the fee or other cost or expense then due, such debits will be
\nreversed (in whole or in part, in Deutsche Bank’s sole discretion) and such
\namount not debited shall be deemed to be unpaid. No such debit under this
\nSection shall be deemed a set-off.<\/p>\n
10.12 NOTIFICATION OF ADDRESSES, LENDING OFFICES, ETC.<\/p>\n
Each Lender shall notify the Agent in writing of any changes in the
\naddress to which notices to the Lender should be directed, of addresses of any
\nLending Office, of payment instructions in respect of all payments to be made to
\nit hereunder and of such other administrative information as the Agent shall
\nreasonably request.<\/p>\n
-81-<\/p>\n
88
\n10.13 COUNTERPARTS<\/p>\n
This Agreement may be executed in any number of separate counterparts,
\neach of which, when so executed, shall be deemed an original, and all of said
\ncounterparts taken together shall be deemed to constitute but one and the same
\ninstrument.<\/p>\n
10.14 SEVERABILITY<\/p>\n
The illegality or unenforceability of any provision of this Agreement or
\nany instrument or agreement required hereunder shall not in any way affect or
\nimpair the legality or enforceability of the remaining provisions of this
\nAgreement or any instrument or agreement required hereunder.<\/p>\n
10.15 NO THIRD PARTIES BENEFITED<\/p>\n
This Agreement is made and entered into for the sole protection and
\nlegal benefit of the Borrower, the Lenders, the Agent and the Agent-Related
\nPersons, and their permitted successors and assigns, and no other Person shall
\nbe a direct or indirect legal beneficiary of, or have any direct or indirect
\ncause of action or claim in connection with, this Agreement or any of the other
\nLoan Documents.<\/p>\n
10.16 GOVERNING LAW AND JURISDICTION<\/p>\n
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN
\nACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT THE AGENT AND
\nTHE LENDERS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.<\/p>\n
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
\nOTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
\nTHE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
\nDELIVERY OF THIS AGREEMENT, EACH OF THE BORROWER, THE AGENT AND THE LENDERS
\nCONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
\nJURISDICTION OF THOSE COURTS. EACH OF THE BORROWER, THE AGENT AND THE LENDERS
\nIRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
\nOR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
\nHAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
\nOF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE BORROWER, THE AGENT AND
\nTHE <\/p>\n
-82-<\/p>\n
89
\nLENDERS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
\nWHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.<\/p>\n
10.17 WAIVER OF JURY TRIAL<\/p>\n
THE BORROWER, THE LENDERS AND THE AGENT EACH WAIVE THEIR RESPECTIVE
\nRIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
\nOUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE
\nTRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
\nLITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR
\nANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
\nCONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE BORROWER, THE LENDERS AND THE
\nAGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
\nCOURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
\nAGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
\nTHIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
\nWHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
\nOR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
\nSHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
\nTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.<\/p>\n
10.18 ENTIRE AGREEMENT<\/p>\n
This Agreement, together with the other Loan Documents, embodies the
\nentire agreement and understanding among the Borrower, the Lenders and the
\nAgent, and supersedes all prior or contemporaneous agreements and understandings
\nof such Persons, verbal or written, relating to the subject matter hereof and
\nthereof.<\/p>\n
[Signature page(s) follows]<\/p>\n
-83-<\/p>\n
90
\n IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
\nduly executed and delivered in New York, New York by their proper and duly
\nauthorized officers as of the day and year first above written.<\/p>\n
AMAZON.COM, INC.<\/p>\n
By: Joy D. Covey
\n ————————————
\n Title: Chief Financial Officer
\n ———————————<\/p>\n
DEUTSCHE BANK AG, NEW YORK BRANCH, as
\n Administrative Agent<\/p>\n
By: Ira Lubinsk
\n ————————————
\n Title: Vice President
\n ———————————<\/p>\n
By: Inken S. Finnamore
\n ————————————
\n Title: Assistant Vice President
\n ———————————<\/p>\n
DEUTSCHE BANK AG, NEW YORK BRANCH AND CAYMAN
\n ISLANDS BRANCH, as a Bank<\/p>\n
By: William W. McGinty
\n ————————————
\n Title: Director
\n ———————————<\/p>\n
By: Ira Lubinsky
\n ————————————
\n Title: Vice President
\n ———————————<\/p>\n
-84-<\/p>\n
91
\n VAN KAMPEN AMERICAN CAPITAL PRIME RATE INCOME
\n TRUST, as a Lender<\/p>\n
By: Jeffery W. Maillet
\n ———————————-
\n Title: Sr. Vice President & Director
\n ——————————-<\/p>\n
By:
\n ———————————-
\n Title:
\n ——————————-<\/p>\n
BANKBOSTON N.A., as a Bank<\/p>\n
By: David B. Herter
\n ———————————-
\n Title: Managing Director
\n ——————————-<\/p>\n
By:
\n ———————————-
\n Title:
\n ——————————-<\/p>\n
BANQUE PARIBAS, as a Bank<\/p>\n
By: Nanci Meyer
\n ——————————-
\n Title: Vice President
\n —————————-<\/p>\n
By: [signature illegible]
\n ——————————-
\n Title: Director
\n —————————-
\n SILICON VALLEY BANK, as a Bank<\/p>\n
By: Laurita J. Hernandez
\n ——————————-
\n Title: Vice President
\n —————————-<\/p>\n
-85-<\/p>\n
92<\/p>\n
By:___________________________________
\n Title:________________________________<\/p>\n
-86-<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6645],"corporate_contracts_industries":[9492],"corporate_contracts_types":[9561,9560],"class_list":["post-40948","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-amazoncom-inc","corporate_contracts_industries-retail__books","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40948","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40948"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40948"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40948"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40948"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}