\n 10.13 Jury Waiver…………………………………………………..22
\n 10.14 Statutory Notice………………………………………………23
\n<\/c><\/s><\/table>\n EXHIBITS<\/p>\n
Exhibit A — Revolving Note, Section 2.3<\/p>\n
Exhibit B — Security Agreement, Section 5.1(b)<\/p>\n
Exhibit C — Board Resolution and Incumbency Certificate, Section 5.1(f)(iii)<\/p>\n
PAGE iii<\/p>\n
CREDIT AGREEMENT<\/p>\n
This credit agreement is made and entered into as of the 22nd day of
\nAugust, 2001, by and between U.S. BANK NATIONAL ASSOCIATION, a national banking
\nassociation (“U.S. Bank”), and LOUDEYE TECHNOLOGIES, INC., a Delaware
\n(“Borrower”). Words and phrases with initial capitalized letters have the
\nmeanings assigned in Article I hereof.<\/p>\n
RECITALS:<\/p>\n
U.S. Bank is a national banking association with its principal place of
\nbusiness in Seattle, Washington. Borrower is a corporation formed and existing
\nunder the laws of the state of Delaware.<\/p>\n
Borrower has requested U.S. Bank to extend to Borrower a revolving line
\nof credit in the amount of $15,000,000.<\/p>\n
U.S. Bank is ready, able and willing to extend such credit facilities to
\nBorrower on the terms and conditions of this Agreement.<\/p>\n
NOW, THEREFORE, in consideration of the mutual covenants and conditions
\nset forth herein, the parties agree as follows:<\/p>\n
ARTICLE I. DEFINITIONS<\/p>\n
1.1 TERMS DEFINED<\/p>\n
As used herein, the following terms have the meanings set forth below:<\/p>\n
“Affiliate” means a Person that now or hereafter, directly or indirectly
\nthrough one or more intermediaries, controls, is controlled by or is under
\ncommon control with Borrower. A Person shall be deemed to control a corporation,
\nlimited liability company or partnership if such Person possesses, directly or
\nindirectly, the power to direct or cause the direction of the management of such
\ncorporation, limited liability company or partnership, whether through the
\nownership of voting securities, by contract, or otherwise.<\/p>\n
“Agreement” means this credit agreement and includes all amendments to
\nthis Agreement.<\/p>\n
“Applicable Law” means all applicable provisions and requirements of all
\n(a) constitutions, statutes, ordinances, rules, regulations, standards, orders
\nand directives of any Governmental Bodies, (b) Governmental Approvals, and (c)
\norders, decisions, decrees, judgments, injunctions and writs of all courts and
\narbitrators, whether such Applicable Laws presently exist, or are modified,
\npromulgated or implemented after the date hereof.<\/p>\n
PAGE 1<\/p>\n
“Borrower” means Loudeye Technologies, Inc., a Delaware corporation, and
\nits successors.<\/p>\n
“Borrowing Notice” has the meaning set forth in Section 2.6(a) hereof.<\/p>\n
“Business Day” means any day except a Saturday, Sunday or other day on
\nwhich national banks in the state of Washington are authorized or required by
\nlaw to close.<\/p>\n
“Collateral” means all the property, real or personal, tangible or
\nintangible, now owned or hereafter acquired, in which U.S. Bank has been or is
\nto be granted a security interest by Borrower or any other Person, to secure the
\nIndebtedness of Borrower to U.S. Bank.<\/p>\n
“Commitment Period” has the meaning set forth in Section 2.1 hereof.<\/p>\n
“Default” means any condition or event that constitutes an Event of
\nDefault or with the giving of notice or lapse of time or both would, unless
\ncured or waived, become an Event of Default.<\/p>\n
“ERISA” means the Employee Retirement Income Security Act of 1974, as
\namended from time to time.<\/p>\n
“Event of Default” has the meaning set forth in Section 9.1 hereof.<\/p>\n
“Extended Maturity Date” has the meaning set forth in the Note.<\/p>\n
“Funding” means any disbursement of the proceeds of the Revolving Loan
\nor the issuance or renewal of any Letters of Credit.<\/p>\n
“Governmental Approval” means any authorization, consent, approval,
\ncertificate of compliance, license, permit or exemption from, contract with,
\nregistration or filing with, or report or notice to, any Governmental Body
\nrequired or permitted by Applicable Law.<\/p>\n
“Governmental Body” means the government of the United States, any state
\nor any foreign country, or any governmental or regulatory official, body,
\ndepartment, bureau, subdivision, agency, commission, court, arbitrator or
\nauthority, or any instrumentality thereof, whether federal, state, or local.<\/p>\n
“Hazardous Materials” means oil or petrochemical products, PCB’s,
\nasbestos, urea formaldehyde, flammable explosives, radioactive materials,
\nhazardous wastes, toxic substances or related materials, including, but not
\nlimited to, substances defined as or included in the definition of “hazardous
\nsubstances,” “hazardous wastes,” “hazardous materials” or “toxic substances”
\nunder any Hazardous Materials Laws.<\/p>\n
“Hazardous Materials Claims” means (a) enforcement, cleanup, removal or
\nother regulatory actions instituted, completed or threatened by any Governmental
\nBody pursuant to<\/p>\n
PAGE 2<\/p>\n
any applicable Hazardous Materials Laws and (b) claims made or threatened by any
\nthird party against Borrower or its property relating to damage, contribution,
\ncost recovery, compensation, loss or injury resulting from Hazardous Materials.<\/p>\n
“Hazardous Materials Laws” means all Applicable Laws pertaining to
\nHazardous Materials.<\/p>\n
“Indebtedness” means all items that in accordance with generally
\naccepted accounting principles would be included in determining total
\nliabilities as shown on the liabilities side of the balance sheet as of the date
\nthat “Indebtedness” is to be determined and in any event includes liabilities
\nsecured by any mortgage, deed of trust, pledge, lien or security interest on
\nproperty owned or acquired, whether or not such a liability has been assumed,
\nand the guaranties, endorsements (other than for collection in the ordinary
\ncourse of business) and other contingent obligations with regard to the
\nobligations of other Persons.<\/p>\n
“L\/C Application” has the meaning set forth in Section 3.1(a) hereof.<\/p>\n
“Letters of Credit” has the meaning set forth in Section 3.1 hereof and
\nincludes all renewals, replacements and modifications thereof.<\/p>\n
“Loan Documents” means this Agreement, the Note, the Security Agreement,
\ntogether with all other agreements, instruments and documents arising out of or
\nrelating to this Agreement or the Loan, and includes all renewals, replacements
\nand amendments thereof.<\/p>\n
“Loan” means the Revolving Loan, as well as all renewals, replacements
\nand amendments thereof.<\/p>\n
“Maturity Date” has the meaning set forth in the Note.<\/p>\n
“Note” means the Revolving Note, as well as all renewals, replacements
\nand amendments thereof.<\/p>\n
“Participant” means any financial institution to which U.S. Bank sells a
\nparticipation in any of the Loans.<\/p>\n
“Permitted Liens” has the meaning set forth in Section 7.5 hereof.<\/p>\n
“Person” means any individual, partnership, limited liability company,
\njoint venture, firm, corporation, association, trust or other enterprise or any
\nGovernmental Body.<\/p>\n
“Plan” means an employee pension benefit plan that is covered by ERISA
\nor subject to the minimum funding standards under Section 412 of the Internal
\nRevenue Code of 1986 and is either (a) maintained by Borrower or any Affiliate
\nfor employees of Borrower or any Affiliate or (b) maintained pursuant to a
\ncollective bargaining agreement or any other arrangement under which more than
\none employer makes contributions and to which<\/p>\n
PAGE 3<\/p>\n
Borrower or any Affiliate is then making or accruing an obligation to make
\ncontributions or has within the preceding five plan years made contributions.<\/p>\n
“Prime Rate” means the prime rate announced by U.S. Bank.<\/p>\n
“Revolving Loan” has the meaning set forth in Section 2.1 hereof and
\nincludes all renewals, replacements and amendments of the Revolving Loan.<\/p>\n
“Revolving Note” has the meaning set forth in Section 2.3 hereof and
\nincludes all renewals, replacements and amendments of the Revolving Note.<\/p>\n
“Security Agreement” has the meaning set forth in Section 5.1(b) hereof
\nand includes all renewals, replacements and amendments of the Security
\nAgreement.<\/p>\n
“Unreimbursed L\/C Payment” means the unreimbursed portion of any payment
\nmade by U.S. Bank under any Letter of Credit.<\/p>\n
“U.S. Bank” means U.S. Bank National Association, a national banking
\nassociation, and its successors and assigns.<\/p>\n
1.2 ACCOUNTING TERMS<\/p>\n
Unless otherwise specified herein, all accounting terms used herein
\nshall be interpreted, all accounting determinations hereunder shall be made and
\nall financial statements required to be delivered hereunder shall be prepared in
\naccordance with generally accepted accounting principles consistently applied.<\/p>\n
1.3 RULES OF CONSTRUCTION<\/p>\n
Unless the context otherwise requires, the following rules of
\nconstruction apply to the Loan Documents:<\/p>\n
(a) Words in the singular include the plural and in the plural include
\nthe singular.<\/p>\n
(b) In the event of any inconsistency between the provisions of this
\nAgreement and the provisions of any of the other Loan Documents, the provisions
\nof this Agreement govern.<\/p>\n
1.4 INCORPORATION OF RECITALS AND EXHIBITS<\/p>\n
The foregoing recitals are incorporated into this Agreement by
\nreference. All references to “Exhibits” contained herein are references to
\nexhibits attached hereto, the terms and conditions of which are made a part
\nhereof for all purposes.<\/p>\n
PAGE 4<\/p>\n
ARTICLE II. REVOLVING LOAN<\/p>\n
2.1 LOAN COMMITMENT<\/p>\n
Subject to and upon the terms and conditions set forth herein and in
\nreliance upon the representations, warranties, and covenants of Borrower
\ncontained herein or made pursuant hereto, U.S. Bank will make Fundings to
\nBorrower from time to time from the date hereof through the Maturity Date or
\nExtended Maturity Date as applicable (“Commitment Period”), but the outstanding
\nprincipal amount of such Fundings (including any Unreimbursed L\/C Payments and
\nthe amount available to be drawn under any outstanding Letters of Credit) shall
\nnot exceed, in the aggregate principal amount at any one time outstanding,
\n$15,000,000 (the “Revolving Loan”). Borrower may borrow, repay and reborrow
\nhereunder either the full amount of the Revolving Loan or any lesser sum.<\/p>\n
2.2 USE OF PROCEEDS<\/p>\n
The proceeds of the Revolving Loan shall be used by Borrower for general
\ncorporate purposes, including working capital needs and to refinance certain
\nexisting long-term debt.<\/p>\n
2.3 REVOLVING NOTE<\/p>\n
The Revolving Loan shall be evidenced by a promissory note in the form
\nattached hereto as Exhibit A (the “Revolving Note”).<\/p>\n
2.4 INTEREST RATE<\/p>\n
The unpaid principal balance of the Revolving Loan will bear interest as
\nset forth in the Revolving Note.<\/p>\n
2.5 REPAYMENT<\/p>\n
(a) Commencing on the first day of the first month following the initial
\nFunding under the Revolving Loan and on the first day of each month thereafter,
\nBorrower shall pay U.S. Bank an amount equal to all accrued interest on the
\nRevolving Loan.<\/p>\n
(b) Borrower shall pay U.S. Bank all outstanding principal, accrued
\ninterest and other charges with respect to the Revolving Loan as set forth in
\nthe Revolving Note.<\/p>\n
2.6 FUNDINGS<\/p>\n
(a) U.S. Bank is hereby authorized by Borrower to make Fundings under
\nthe Revolving Loan upon receipt for each Funding of a request therefor as set
\nforth in the Revolving Note (“Borrowing Notice”). Any such Funding shall be
\nconclusively presumed to have been made to or for the benefit of Borrower when
\nmade in accordance with such a request and direction for disposition or when
\nsuch Funding is deposited to the credit of the account of Borrower with U.S.
\nBank or is transmitted to any other bank with directions to<\/p>\n
PAGE 5<\/p>\n
credit the same to the account of Borrower at such bank, regardless of whether
\npersons other than those authorized hereunder to make requests for Fundings have
\nauthority to draw against any such account.<\/p>\n
(b) Borrower acknowledges that U.S. Bank cannot effectively determine
\nwhether a particular request for a Funding is valid, authorized or authentic. It
\nis nevertheless important to Borrower that it has the privilege of making
\nrequests for Fundings in accordance with Section 2.6(a) hereof. Therefore, to
\ninduce U.S. Bank to lend funds in response to such requests and in consideration
\nfor U.S. Bank’s agreement to receive and consider such requests, Borrower
\nassumes all risk of the validity, authenticity and authorization of such
\nrequests, whether or not the individual making such requests has authority to
\nrequest Fundings and whether or not the aggregate sum owing exceeds the maximum
\nprincipal amount referred to above. U.S. Bank shall not be responsible under
\nprinciples of contract, tort or otherwise for the amount of an unauthorized or
\ninvalid Funding; rather, Borrower agrees to repay any sums with interest as
\nprovided herein.<\/p>\n
ARTICLE III LETTERS OF CREDIT<\/p>\n
3.1 COMMITMENT<\/p>\n
Subject to and upon the terms and conditions set forth herein and in
\nreliance upon the representations, warranties and covenants of Borrower
\ncontained herein or made pursuant hereto, U.S. Bank agrees from time to time
\nduring the Commitment Period to issue for the account of Borrower standby and
\ncommercial letters of credit backed by this Agreement (the “Letters of Credit”),
\nprovided that the aggregate face amount of Letters of Credit and Unreimbursed
\nL\/C Payments at any time outstanding shall not exceed: $1,000,000. The issuance
\nof a Letter of Credit by U.S. Bank shall constitute a Funding hereunder.<\/p>\n
3.2 PURPOSE<\/p>\n
The Letters of Credit may be issued only in the ordinary course of
\nBorrower’s business.<\/p>\n
3.3 ISSUANCE<\/p>\n
(a) Borrower may request U.S. Bank to issue Letters of Credit by
\ndelivering to U.S. Bank a letter of credit application and security agreement in
\nU.S. Bank’s then customary form (“L\/C Application”), completed to the
\nsatisfaction of U.S. Bank, and such other certificates, documents, papers and
\ninformation as U.S. Bank customarily requests in connection with the issuance of
\nletters of credit.<\/p>\n
(b) Upon receipt of any L\/C Application from Borrower, U.S. Bank will
\nprocess such L\/C Application, and the other certificates, documents, papers, and
\ninformation delivered to U.S. Bank in connection therewith, in accordance with
\nits customary procedures. Upon approval of Borrower’s L\/C Application, U.S. Bank
\nshall promptly issue a Letter of Credit to the beneficiary thereof and furnish a
\ncopy of such Letter of Credit to Borrower.<\/p>\n
PAGE 6<\/p>\n
(c) No Letter of Credit issued hereunder shall have an expiration date
\noccurring later than the Maturity Date or Extended Maturity Date (both dates as
\ndefined in the Note).<\/p>\n
3.4 NOTE<\/p>\n
Borrower’s reimbursement obligations under the Letters of Credit shall
\nbe evidenced by the respective L\/C Applications and, if paid from a Funding
\nunder the Revolving Loan, by the Note.<\/p>\n
3.5 INTEREST RATE<\/p>\n
Unreimbursed L\/C Payments shall bear interest at a rate of interest
\nequal to Default Interest Rate set forth in the Note.<\/p>\n
3.6 REPAYMENT<\/p>\n
(a) Borrower shall reimburse U.S. Bank, forthwith upon its demand and
\notherwise in accordance with the terms of the L\/C Application relating thereto,
\nfor any payment made by U.S. Bank under any Letter of Credit that is not
\nimmediately paid from a Funding under the Revolving Loan.<\/p>\n
(b) Borrower shall pay interest on any Unreimbursed L\/C Payment in
\nrespect of any Letter of Credit from the date of such payment until
\nreimbursement in full thereof.<\/p>\n
3.7 LETTER OF CREDIT FEES<\/p>\n
(a) Borrower agrees to pay to U.S. Bank an issuance fee of 0.0075
\nconcurrently with the issuance of each Letter of Credit.<\/p>\n
3.8 DRAWS\/COLLATERAL<\/p>\n
Any draws on Letters of Credit issued by U.S. Bank pursuant to the terms
\nof this Agreement shall be paid by Borrower immediately upon receipt of notice
\nfrom U.S. Bank of such draw. So long as Borrower meets the conditions to
\nFundings under the Loan, draws on Letters of Credit may be paid from Fundings
\nunder the Revolving Loan. In the event Borrower fails to make such immediate
\nrepayment, U.S. Bank shall be authorized to consider any such draws as Fundings
\nunder the Revolving Loan. In the event that there exists a Default or Event of
\nDefault under this Agreement on the date of any such draw, such draw will
\nnevertheless constitute a Funding on the Revolving Loan and shall not constitute
\na waiver of any of U.S. Bank’s rights hereunder or under any of the other Loan
\nDocuments. In the event that any Letters of Credit are outstanding upon the
\nexpiration of the Commitment Period for the Revolving Loan, Borrower shall, upon
\nU.S. Bank’s request, deposit with U.S. Bank in a special demand deposit account
\nset up by Borrower, an amount of cash necessary to cover all outstanding Letters
\nof Credit. Borrower hereby grants U.S. Bank a security interest in any such
\ndemand deposit account and gives U.S. Bank the authority to charge against such
\naccount upon a draw on outstanding Letters of Credit in an amount equal<\/p>\n
PAGE 7<\/p>\n
to the amount paid by U.S. Bank to the beneficiaries of such Letters of Credit.
\nIn the event Borrower does not establish such an account, or in the event the
\namount of funds in such account are insufficient to satisfy the obligations of
\nU.S. Bank under all outstanding Letters of Credit, then all payments made by
\nU.S. Bank under such Letters of Credit shall automatically constitute Fundings
\nunder the Revolving Loan, notwithstanding the fact that the Commitment Period
\nfor the Revolving Loan has expired. U.S. Bank shall maintain possession of the
\nRevolving Note until all Letters of Credit have either expired, been canceled or
\nbeen paid by U.S. Bank and U.S. Bank has been reimbursed in full. In the event
\nthat the Loan has been paid in full, but there remain outstanding any Letters of
\nCredit, U.S. Bank will retain a security interest in all of the Collateral to
\nsecure the reimbursement obligations of Borrower under the Letters of Credit.<\/p>\n
ARTICLE IV. GENERAL PROVISIONS APPLICABLE TO THE LOANS<\/p>\n
4.1 MANNER OF PAYMENT<\/p>\n
All sums payable to U.S. Bank pursuant to this Agreement shall be paid
\ndirectly to U.S. Bank in immediately available United States funds. Whenever any
\npayment to be made hereunder or on any of the Note becomes due and payable on a
\nday that is not a Business Day, such payment may be made on the next succeeding
\nBusiness Day and such extension of time shall in such case be included in
\ncomputing interest on such payment.<\/p>\n
4.2 STATEMENTS<\/p>\n
U.S. Bank shall send Borrower statements of all amounts due hereunder;
\nthe statements shall be considered correct and conclusively binding, absent
\nmanifest error or demonstratable error, on Borrower unless Borrower notifies
\nU.S. Bank to the contrary within 30 days of receipt of any statement that
\nBorrower claims to be incorrect. Borrower agrees that accounting entries made by
\nU.S. Bank with respect to Borrower’s loan accounts shall constitute evidence of
\nall Fundings made under and payments made on the Loan. Without limiting the
\nmethods by which U.S. Bank may otherwise be entitled by Applicable Law to make
\ndemand for payment of the Loan upon Borrower, Borrower agrees that any
\nstatement, invoice or payment notice from U.S. Bank to Borrower with respect to
\nany principal or interest obligation of Borrower to U.S. Bank shall be deemed to
\nbe a demand for payment in accordance with the terms of such statement, invoice
\nor payment notice. Under no circumstances shall a demand by U.S. Bank for
\npartial payment of principal or interest or both be construed as a waiver by
\nU.S. Bank of its right thereafter to demand and receive payment (in part or in
\nfull) of any remaining principal or interest obligation.<\/p>\n
4.3 BOOK ENTRY LOAN ACCOUNT<\/p>\n
U.S. Bank shall establish a book entry loan account for the Loan in
\nwhich U.S. Bank will make debit entries of all Fundings pursuant to the terms of
\nthis Agreement. U.S. Bank will also record in the applicable loan account, in
\naccordance with customary banking practices, all interest and other charges,
\nexpenses and other items properly chargeable to<\/p>\n
PAGE 8<\/p>\n
Borrower, if any, together with all payments made by Borrower on account of the
\nIndebtedness evidenced by Borrower’s respective loan accounts and all other sums
\ncredited to the respective loan accounts. The debit balance of Borrower’s
\nrespective loan accounts shall reflect the amount of Borrower’s Indebtedness to
\nU.S. Bank from time to time by reason of advances, charges, payments or credits.<\/p>\n
4.4 EXTENSIONS, RENEWALS AND MODIFICATIONS<\/p>\n
Any extensions, renewals, and modifications of the Loan shall be
\ngoverned by the terms and conditions of this Agreement and the other Loan
\nDocuments unless otherwise agreed to in writing by U.S. Bank and Borrower.<\/p>\n
ARTICLE V. CONDITIONS PRECEDENT FOR FUNDINGS UNDER THE LOANS<\/p>\n
5.1 CONDITIONS PRECEDENT FOR INITIAL FUNDING<\/p>\n
U.S. Bank shall not be required to make the initial Funding under the
\nLoan unless or until the following conditions have been fulfilled to the
\nsatisfaction of U.S. Bank:<\/p>\n
(a) U.S. Bank shall have received this Agreement and the Revolving Note,
\nduly executed and delivered by the respective parties thereto.<\/p>\n
(b) U.S. Bank shall have received, duly executed and delivered by
\nBorrower, a security agreement in the form attached hereto as Exhibit B
\n(“Security Agreement”), granting to U.S. Bank a first priority and exclusive
\nsecurity interest in the Collateral.<\/p>\n
(c) U.S. Bank shall have received, duly executed and delivered by
\nBorrower, such financing statements and other documents deemed necessary by U.S.
\nBank to perfect the security interest granted to U.S. Bank.<\/p>\n
(d) No Default or Event of Default hereunder shall exist, and after
\nhaving given effect to the requested Funding, no Default or Event of Default
\nshall exist.<\/p>\n
(e) All representations and warranties of Borrower contained herein or
\notherwise made in writing in connection herewith shall be true and correct in
\nall material respects with the same effect as though such representations and
\nwarranties had been made on and as of the date of the initial Funding.<\/p>\n
(f) All corporate proceedings of Borrower shall be satisfactory in form
\nand substance to U.S. Bank, and U.S. Bank shall have received all information
\nand copies of all documents, including records of all corporate proceedings,
\nthat U.S. Bank has requested in connection therewith, such documents where
\nappropriate to be certified by proper corporate authorities or Governmental
\nBodies. Borrower shall provide U.S. Bank with the following documents prior to
\nor upon the execution of this Agreement:<\/p>\n
PAGE 9<\/p>\n
(i) Copies of the articles of incorporation of Borrower,
\n together with all amendments thereto, certified by Borrower to be true
\n and complete;<\/p>\n
(ii) A certificate of authority for Borrower to do business in
\n the state of Washington, dated within 30 days of the date of the
\n execution of this Agreement; and<\/p>\n
(iii) A certified resolution of the directors of Borrower and
\n incumbency certificate in the form attached hereto as Exhibit C.<\/p>\n
(g) U.S. Bank shall have received such evidence deemed necessary by U.S.
\nBank that U.S. Bank’s security interest in the Collateral constitutes a first
\npriority and exclusive security interests.<\/p>\n
(h) U.S. Bank shall have received a Borrowing Notice from Borrower for
\nthe initial Funding requested under the Revolving Loan.<\/p>\n
5.2 CONDITIONS PRECEDENT TO EACH SUBSEQUENT FUNDING<\/p>\n
The obligation of U.S. Bank to make any Funding subsequent to the
\ninitial Funding hereunder is subject to the fulfillment, to the satisfaction of
\nU.S. Bank, of the following:<\/p>\n
(a) The conditions set forth in Section 5.1 hereof shall have been
\npreviously satisfied, and U.S. Bank shall have received evidence satisfactory to
\nU.S. Bank of satisfaction thereof;<\/p>\n
(b) U.S. Bank shall have received a Borrowing Notice for each requested
\nFunding under the Revolving Loan;<\/p>\n
(c) There shall be executed and delivered to U.S. Bank such further
\ninstruments, agreements and documents, as may be reasonably necessary or proper
\nin the opinion of U.S. Bank to confirm the obligations of Borrower to U.S. Bank
\nhereunder, the grant of security therefor and the proper use of the proceeds of
\nall Fundings;<\/p>\n
(d) The representations and warranties of Borrower in Article VIII
\nhereof shall be true on the date of each Funding with the same force and effect
\nas if made on and as of that date;<\/p>\n
(e) No Default or Event of Default shall exist, and after having given
\neffect to the requested Funding, no Default or Event of Default shall exist; and<\/p>\n
(f) To the extent not previously delivered, all other documents,
\nagreements and instruments from or with respect to Borrower or any other Person
\nthat may be called for hereunder shall be duly executed and delivered to U.S.
\nBank, including, but not limited to, all documents, agreements and instruments
\ndeemed necessary by U.S. Bank to perfect its security interest in Collateral
\nacquired after the date of this Agreement. For the purposes of this Agreement,
\nthe waiver of delivery of any document, agreement or instrument from or<\/p>\n
PAGE 10<\/p>\n
with respect to Borrower or any other Person does not constitute a continuing
\nwaiver with respect to the obligation to fulfill the conditions precedent to
\neach Funding hereunder.<\/p>\n
ARTICLE VI. AFFIRMATIVE COVENANTS<\/p>\n
Borrower hereby covenants and agrees that so long as this Agreement is
\nin effect, and until the Loan, together with interest thereon, and all other
\nobligations incurred hereunder are paid or satisfied in full, Borrower shall:<\/p>\n
6.1 FINANCIAL DATA<\/p>\n
Keep its books of account in accordance with generally accepted
\naccounting principles, consistently applied, and furnish to U.S. Bank:<\/p>\n
(a) As soon as practicable and in any event within 45 days after the
\nclose of each fiscal quarter of Borrower, the following unaudited financial
\nstatements of Borrower for each such quarter, all in reasonable detail and
\ncertified by Borrower to be true and correct: balance sheet, statement of income
\nand statement of cash flows.<\/p>\n
(b) As soon as practicable and in any event within 120 days after the
\nclose of each fiscal year of Borrower, the following financial statements of
\nBorrower, setting forth the corresponding figures for the previous fiscal year
\nin comparative form where appropriate, all in reasonable detail and audited
\n(without any qualification or exception deemed material by U.S. Bank) by
\nBorrower’s current independent certified public accountant or such other
\nindependent certified public accountants selected by Borrower and satisfactory
\nto U.S. Bank: balance sheet, statement of income and statement of cash flows. At
\nU.S. Bank’s request, Borrower shall review with U.S. Bank a copy of its
\nindependent certified public accountants’ management letter or other similar
\nreport or correspondence to Borrower.<\/p>\n
(c) As soon as practicable and in any event within 5 business days after
\nthe close of each calendar month of Borrower, certificates signed by Borrower,
\nstating that during such period no Default or Event of Default existed or if any
\nsuch Default or Event of Default existed, specifying the nature thereof, the
\nperiod of existence thereof and what action Borrower proposes to take or has
\ntaken with respect thereto, and promptly upon the occurrence of any Default or
\nEvent of Default, a certificate signed by Borrower, specifying the nature
\nthereof, the period of existence thereof and what action Borrower proposes to
\ntake or has taken with respect thereto.<\/p>\n
(d) Upon request by U.S. Bank, copies of all reports relative to the
\noperations of Borrower and its Affiliates filed with any Governmental Body.<\/p>\n
(e) With reasonable promptness, such other information regarding the
\nbusiness, operations and financial condition of Borrower as U.S. Bank may from
\ntime to time reasonably request.<\/p>\n
PAGE 11<\/p>\n
6.2 MAINTENANCE OF RECORDS<\/p>\n
Keep at all times books of account and other records in which full, true
\nand correct entries will be made of all dealings or transactions in relation to
\nthe business and affairs of Borrower.<\/p>\n
6.3 INSPECTION<\/p>\n
Allow any representative of U.S. Bank to visit and inspect any of the
\nproperties of Borrower, to examine the books of account and other records and
\nfiles of Borrower, to make copies thereof, and to discuss the affairs, business,
\nfinances and accounts of Borrower with its officers, employees and accountants,
\nall at such reasonable times and as often as U.S. Bank may desire provided that
\nU.S. Bank does not unreasonably interfere with Borrower’s business activities.
\nThis right of inspection shall specifically include U.S. Bank’s collateral and
\nfinancial examinations.<\/p>\n
6.4 CORPORATE EXISTENCE<\/p>\n
Maintain and preserve the corporate existence of Borrower.<\/p>\n
6.5 NOTICE OF DISPUTES AND OTHER MATTERS<\/p>\n
Promptly give written notice to U.S. Bank of:<\/p>\n
(a) Any citation, order to show cause or other legal process or order
\nthat could reasonably be expected to have a material adverse effect on Borrower,
\ndirecting Borrower to become a party to or to appear at any proceeding or
\nhearing by or before any Governmental Body that has granted to Borrower any
\nGovernmental Approval, and include with such notice a copy of any such citation,
\norder to show cause, or other legal process or order;<\/p>\n
(b) Any (i) refusal, denial, threatened denial or failure by any
\nGovernmental Body to grant, issue, renew or extend any material Governmental
\nApproval; (ii) proposed or actual revocation, termination or modification
\n(whether favorable or adverse) of any material Governmental Approval by any
\nGovernmental Body; (iii) dispute or other action with regard to any material
\nGovernmental Approval by any Governmental Body; (iv) notice from any
\nGovernmental Body of the imposition of any material fines or penalties or
\nforfeitures; or (v) threats or notice with respect to any of the foregoing or
\nwith respect to any proceeding or hearing that might result in any of the
\nforegoing;<\/p>\n
6.6 EXCHANGE OF NOTE<\/p>\n
Upon receipt of a written notice of loss, theft, destruction or
\nmutilation of the Note, and upon surrendering such Note for cancellation if
\nmutilated, execute and deliver a new Note or a Note of like tenor in lieu of
\nsuch lost, stolen, destroyed or mutilated Note. Any Note issued pursuant to this
\nSection 6.11 shall be dated so that neither gain nor loss of interest shall
\nresult therefrom.<\/p>\n
PAGE 12<\/p>\n
6.7 MAINTENANCE OF LIENS<\/p>\n
At all times maintain the liens and security interests provided under or
\npursuant to this Agreement as valid and perfected first liens and security
\ninterests on the property and assets intended to be covered thereby. Except as
\ncontemplated under Section 7.5, hereof Borrower shall take all action requested
\nby U.S. Bank necessary to assure that U.S. Bank has valid and exclusive liens
\nand security interests in all Collateral.<\/p>\n
6.8 OTHER AGREEMENTS<\/p>\n
Comply with all covenants and agreements set forth in or required
\npursuant to any of the other Loan Documents.<\/p>\n
6.9 FURTHER ASSURANCES<\/p>\n
Within ten days of request by U.S. Bank, duly execute and deliver or
\ncause to be duly executed and delivered to U.S. Bank such further instruments,
\nagreements and documents and do or cause to be done such further acts as may be
\nnecessary or proper in the opinion of U.S. Bank to carry out more effectively
\nthe provisions and purpose of this Agreement and the other Loan Documents.<\/p>\n
ARTICLE VII. NEGATIVE COVENANTS<\/p>\n
Borrower covenants and agrees that until all the Loans, together with
\ninterest thereon, and all other obligations incurred hereunder are paid or
\nsatisfied in full, Borrower shall not, without the prior written consent of U.S.
\nBank:<\/p>\n
7.1 INVESTMENTS<\/p>\n
Invest the Collateral other than in investments described in Exhibit A
\nto the Security Agreement.<\/p>\n
7.2 WIND UP, LIQUIDATION AND DISSOLUTION<\/p>\n
Wind up, liquidate or dissolve Borrower’s affairs.<\/p>\n
7.3 CHANGE OF CHIEF EXECUTIVE OFFICE OR NAME<\/p>\n
Change (a) the state of incorporation of Borrower, (b) Borrower’s name,
\nor (c) adopt or use any trade name without (x) prior written notice to U.S. Bank
\nand (y) the execution, delivery and filing (and payment of filing fees and
\ntaxes) of all such documents as may be necessary or advisable in the opinion of
\nU.S. Bank to continue to perfect and protect the liens and security interests in
\nthe Collateral.<\/p>\n
PAGE 13<\/p>\n
7.4 CHANGE IN DOCUMENTS<\/p>\n
Amend, supplement, terminate or otherwise modify in any way Borrower’s
\narticles of incorporation, contracts or other documents delivered to U.S. Bank
\nhereunder or executed in connection herewith if such amendment, supplement,
\ntermination or other modification may materially affect Borrower’s performance
\nor its obligations under this Agreement.<\/p>\n
ARTICLE VIII. REPRESENTATIONS AND WARRANTIES<\/p>\n
In order to induce U.S. Bank to enter into this Agreement and to make
\nthe Loans as herein provided, Borrower hereby makes the following
\nrepresentations, covenants and warranties, all of which shall survive the
\nexecution and delivery of this Agreement and shall not be affected or waived by
\nany inspection or examination made by or on behalf of U.S. Bank:<\/p>\n
8.1 CORPORATE STATUS<\/p>\n
Borrower is a corporation organized and validly existing under the laws
\nof the state of Delaware. Borrower has the power and authority to own its
\nproperty and assets and to transact the business in which it is engaged or
\npresently proposes to engage. Borrower is qualified to do business in all states
\nexcept where the failure to be qualified could not have a material adverse
\neffect on Borrower.<\/p>\n
8.2 POWER AND AUTHORITY<\/p>\n
Borrower has the power to execute, deliver and carry out the terms and
\nprovisions of this Agreement and each of the Loan Documents and has taken all
\nnecessary action to authorize the execution, delivery and performance of this
\nAgreement and the other Loan Documents, the borrowings hereunder and the making
\nand delivery of the Notes and all Loan Documents delivered hereunder. This
\nAgreement constitutes and the Notes and other Loan Documents and instruments
\nissued or to be issued hereunder, when executed and delivered pursuant hereto,
\nconstitute or will constitute the authorized, valid and legally binding
\nobligations of Borrower enforceable in accordance with their respective terms.<\/p>\n
8.3 NO VIOLATION OF AGREEMENTS<\/p>\n
Borrower is not in default under any material provision of any agreement
\nto which it is a party or in violation of any Applicable Laws. The execution and
\ndelivery of this Agreement, the Note, the other Loan Documents and the
\ninstruments incidental hereto; the consummation of the transactions herein or
\ntherein contemplated; and compliance with the terms and provisions hereof or
\nthereof (a) will not violate any material Applicable Law, (b) will not conflict
\nor be inconsistent with, result in any breach of any of the material terms,
\ncovenants, conditions or provisions of, constitute a default under, or result in
\nthe creation or imposition of (or the obligation to impose) any lien, charge or
\nencumbrance upon any of the property or assets of Borrower pursuant to the terms
\nof any material Governmental Approval, mortgage, deed of trust, lease, agreement
\nor other instrument to which Borrower is a party, by<\/p>\n
PAGE 14<\/p>\n
which Borrower may be bound or to which Borrower may be subject, and (c) will
\nnot violate any of the provisions of the articles of incorporation of Borrower.
\nNo Governmental Approval is necessary (x) for the execution of this Agreement,
\nthe making of the Note or the assumption and performance of this Agreement or
\nthe Note by Borrower or (y) for the consummation by Borrower of the transactions
\ncontemplated by this Agreement, including, but not limited to, the grant of the
\nsecurity interests to U.S. Bank.<\/p>\n
8.4 RECORDING AND ENFORCEABILITY<\/p>\n
Neither the articles of incorporation, bylaws or other applicable
\ncorporate documents of Borrower nor other agreements require recording, filing,
\nregistration, notice or other similar action in order to insure the legality,
\nvalidity, binding effect or enforceability against all Persons of this
\nAgreement, the Note or other Loan Documents executed or to be executed
\nhereunder, other than filings or recordings that may be required under the
\nUniform Commercial Code.<\/p>\n
8.5 LITIGATION<\/p>\n
There are no actions, suits or proceedings pending or threatened against
\nor affecting Borrower before any Governmental Body that could reasonably be
\nexpected to have a material adverse effect on Borrower or the Collateral, except
\nthose disclosed in the Borrower’s filings with the Securities and Exchange
\nCommission or previously disclosed to U.S. Bank. Borrower is not in default
\nunder any material provision of any Applicable Law or Governmental Approval of
\nany Governmental Body which could have a material adverse effect on Borrower or
\non the Collateral.<\/p>\n
8.6 GOOD TITLE TO PROPERTIES<\/p>\n
Borrower has good and marketable title to the Collateral, subject to no
\nliens, mortgages, pledges, encumbrances or charges of any kind.<\/p>\n
8.7 LICENSES AND PERMITS<\/p>\n
All Governmental Approvals with respect to the business of Borrower were
\nto Borrower’s knowledge duly and validly issued by the respective Governmental
\nBodies, are in full force and effect and are to Borrower’s knowledge valid and
\nenforceable in accordance with their terms. With regard to such Governmental
\nApprovals, no fact or circumstance exists that constitutes or, with the passage
\nof time or the giving of notice or both, would constitute a material default
\nunder any thereof, or permit the grantor thereof to cancel or terminate the
\nrights thereunder, except upon the expiration of the full term thereof. Borrower
\npresently holds all material Governmental Approvals as are necessary or
\nadvisable in connection with the conduct of its business as now conducted and as
\npresently proposed to be conducted.<\/p>\n
PAGE 15<\/p>\n
8.8 FINANCIAL STATEMENTS<\/p>\n
The (a) audited financial statements of Borrower dated December 31,
\n2000, and all schedules and notes included in such financial statements and (b)
\nunaudited financial statements of Borrower that have heretofore been delivered
\nto U.S. Bank are true and correct in all material respects and present fairly
\n(i) the financial position of Borrower as of the date of said statements and
\n(ii) the results of operations of Borrower for the periods covered thereby; and
\nthere are not any significant liabilities that should have been reflected in the
\nfinancial statements or the notes thereto under generally accepted accounting
\nprinciples, contingent or otherwise, including liabilities for taxes or any
\nunusual forward or long-term commitments, that are not disclosed or reserved
\nagainst in the statements referred to above or in the notes thereto or that are
\nnot disclosed herein. All such financial statements have been prepared in
\naccordance with generally accepted accounting principles consistently applied.
\nThere has been no material adverse change (including, but not limited to, any
\nsuch change occasioned by accident, act of God, war, fire, flood, explosion,
\nstrike or other labor dispute, or orders or action by any Governmental Body or
\npublic utility) in the operations, business, property, assets or condition
\n(financial or otherwise) of Borrower since June 30, 2001.<\/p>\n
8.9 TAXES<\/p>\n
Borrower has duly filed all tax returns and reports required by
\nApplicable Law to be filed; and all taxes, assessments, levies, fees and other
\ncharges of Governmental Bodies upon Borrower or upon its assets that are due and
\npayable have been paid (except as otherwise permitted in this Agreement).<\/p>\n
8.10 LICENSE FEES<\/p>\n
Borrower has paid all fees and charges that have become due for any
\nmaterial Governmental Approval for its business or has made adequate provisions
\nfor any such fees and charges that have accrued.<\/p>\n
8.11 INTENTIONALLY OMITTED<\/p>\n
8.12 INTENTIONALLY OMITTED<\/p>\n
8.13 DISCLOSURE<\/p>\n
To the best of Borrower’s knowledge, the exhibits hereto, the financial
\ninformation and statements referred to in Section 8.10 hereof, any certificate,
\nstatement, report or other document furnished to U.S. Bank by Borrower or any
\nother Person in connection herewith or in connection with any transaction
\ncontemplated hereby, and this Agreement, do not contain any untrue statements of
\nmaterial fact or omit to state any material fact necessary in order to make the
\nstatements contained therein or herein not misleading.<\/p>\n
PAGE 16<\/p>\n
8.14 REGULATIONS U AND X<\/p>\n
Borrower does not own and no part of the proceeds hereof will be used to
\npurchase or carry any margin stock (within the meaning of Regulation U of the
\nBoard of Governors of the Federal Reserve System) or to extend credit to others
\nfor the purpose of purchasing or carrying any margin stock. Borrower is not
\nengaged principally or as one of its important activities in the business of
\nextending credit for the purpose of purchasing or carrying any margin stock. If
\nrequested by U.S. Bank, Borrower will furnish to U.S. Bank a statement in
\nconformity with the requirements of Federal Reserve Form U-1 referred to in said
\nRegulation. No part of the proceeds of the Loan will be used for any purpose
\nthat violates or is inconsistent with the provisions of Regulation X of said
\nBoard of Governors.<\/p>\n
8.15 NAMES<\/p>\n
Neither Borrower nor any of its predecessors operate or do business or
\nduring the past five years have operated or done business under a fictitious,
\ntrade or assumed name.<\/p>\n
ARTICLE IX. EVENTS OF DEFAULT; REMEDIES<\/p>\n
9.1 EVENTS OF DEFAULT<\/p>\n
“Event of Default,” wherever used herein, means any one of the following
\nevents (whatever the reason for the Event of Default, whether it shall relate to
\none or more of the parties hereto, and whether it shall be voluntary or
\ninvoluntary or be pursuant to or affected by operation of Applicable Law):<\/p>\n
(a) If Borrower fails to pay the principal of or any installment of
\ninterest on the Note, when and as the same becomes due and payable, whether at
\nscheduled maturity, by acceleration or otherwise and such failure continues for
\n10 days after written notice of such failure is given by Lender to Borrower; or<\/p>\n
(b) If any representation or warranty (i) made by Borrower in this
\nAgreement or (ii) made by Borrower, or any other Person in any document,
\ncertificate or statement furnished pursuant to this Agreement or in connection
\nherewith, is false or misleading in any material respect; or<\/p>\n
(c) If Borrower fails to observe or perform any term, covenant or
\nagreement to be performed or observed pursuant to Articles VI and VII hereof and
\nsuch failure continues for 10 days after written notice of such failure is given
\nby Lender to Borrower; or<\/p>\n
(d) If Borrower fails to observe or perform (not otherwise specified in
\nthis Article IX) any term, covenant or agreement to be performed or observed
\npursuant to the provisions of this Agreement, the other Loan Documents or any
\nother agreement incidental hereto and such failure continues for 10 days after
\nwritten notice of such failure is given by Lender to Borrower; or<\/p>\n
PAGE 17<\/p>\n
(e) If Borrower fails to perform any of its obligations under any of the
\nLoan Documents not otherwise specified in this Article IX and such failure
\ncontinues for 10 days after written notice of such failure is given by Lender to
\nBorrower, or if the validity of any of such documents has been disaffirmed by or
\non behalf of any of the parties thereto other than U.S. Bank; or<\/p>\n
(f) If custody or control of any substantial part of the property of
\nBorrower is assumed by any Governmental Body or if any Governmental Body takes
\nany final action, the effect of which would be to have a material adverse effect
\non Borrower; or<\/p>\n
(g) If Borrower suspends or discontinues its business, or if Borrower
\nmakes an assignment for the benefit of creditors or a composition with
\ncreditors, is unable or admits in writing its inability to pay its debts as they
\nmature, files a petition in bankruptcy, becomes insolvent (howsoever such
\ninsolvency may be evidenced), is adjudicated insolvent or bankrupt, petitions or
\napplies to any tribunal for the appointment of any receiver, liquidator or
\ntrustee of or for it or any substantial part of its property or assets,
\ncommences any proceeding relating to it under any Applicable Law of any
\njurisdiction whether now or hereafter in effect relating to bankruptcy,
\nreorganization, arrangement, readjustment of debt, receivership, dissolution or
\nliquidation; or if there is commenced against Borrower any such proceeding that
\nremains undismissed for a period of 90 days or more, or an order, judgment or
\ndecree approving the petition in any such proceeding is entered; or if Borrower
\nby any act or failure to act indicates its consent to, approval of, or
\nacquiescence in, any such proceeding or any appointment of any receiver,
\nliquidator or trustee of or for it or for any substantial part of its property
\nor assets, suffers any such appointment to continue undischarged or unstayed for
\na period of 90 days or more, or takes any corporate action for the purpose of
\neffecting any of the foregoing; or if any court of competent jurisdiction
\nassumes jurisdiction with respect to any such proceeding, or if a receiver or a
\ntrustee or other officer or representative of a court or of creditors, or if any
\nGovernmental Body, under color of legal authority, takes and holds possession of
\nany substantial part of the property or assets of Borrower; or<\/p>\n
(h) If there is any refusal or failure by any Governmental Body to
\nissue, renew, or extend any lease or Governmental Approval with respect to the
\noperation of the business of Borrower, or any denial, forfeiture or revocation
\nby any Governmental Body of any Governmental Approval that could have a material
\nadverse effect on Borrower; or<\/p>\n
(i) If any of the events described in Section 6.5 hereof occur or are
\nthreatened and, in U.S. Bank’s reasonable judgment, such event jeopardizes or
\ncould reasonably be expected to jeopardize repayment of the Note; or<\/p>\n
(j) If any event occurs that impairs that portion of the Collateral that
\nBorrower covenants to maintain at a minimum of $25,000,000 and such event
\ncontinues for three days after written notice of such event has been given by
\nLender to Borrower; provided, however, that such right to a cure period shall
\nnot apply in circumstances when a delay in effecting a cure is, in the judgment
\nof the Lender, likely to result in the portion of the Collateral that<\/p>\n
PAGE 18<\/p>\n
Borrower covenants to maintain at a minimum of $25,000,000 being unavailable to
\nLender or the value thereof being adversely affected.<\/p>\n
9.2 ACCELERATION; REMEDIES<\/p>\n
(a) If any Event of Default shall occur, then immediately and
\nautomatically U.S. Bank’s commitment under the Revolving Loan shall terminate
\nand all other amounts owing under this Agreement and the Revolving Note and an
\namount equal to the maximum aggregate amount that is or at any time thereafter
\nmay become available for drawing under any outstanding Letters of Credit
\n(whether or not any beneficiary shall have presented, or shall be entitled at
\nsuch time to present, the drafts or other documents required to draw under such
\nLetters of Credit) shall become due and payable and U.S. Bank’s obligation to
\nmake any advances under the Revolving Loan shall immediately terminate.<\/p>\n
(b) Except as expressly provided above in this Section 9.2, presentment,
\ndemand and all other notices of any kind are hereby expressly waived. U.S. Bank
\nmay proceed to protect and enforce its rights hereunder or realize on any or all
\nsecurity granted pursuant to any the Loan Documents in any manner or order it
\ndeems expedient without regard to any equitable principles of marshaling or
\notherwise. No failure or delay on the part of U.S. Bank in exercising any right,
\npower or privilege hereunder and no course of dealing between Borrower and U.S.
\nBank shall operate as a waiver thereof; nor shall any single or partial exercise
\nof any right, power or privilege hereunder preclude any other or further
\nexercise thereof or the exercise of any right, power or privilege. The rights
\nand remedies herein expressly provided are cumulative and not exclusive of any
\nrights or remedies that U.S. Bank would otherwise have. No notice to or demand
\non Borrower in any case shall entitle Borrower to any other or further notice or
\ndemand in similar or other circumstances or shall constitute a waiver of the
\nright of U.S. Bank to any other or further action in any circumstances without
\nnotice or demand.<\/p>\n
ARTICLE X. MISCELLANEOUS<\/p>\n
10.1 NOTICES<\/p>\n
All notices, requests, consents, demands, approvals and other
\ncommunications hereunder shall be deemed to have been duly given, made or served
\nif made in writing and delivered personally, sent via facsimile or mailed by
\nfirst-class mail, postage prepaid, to the respective parties to this Agreement
\nas follows:<\/p>\n
(a) If to Borrower:<\/p>\n
Loudeye Technologies, Inc.
\n 414 Olive Way, Suite 500
\n Seattle, Washington 98101
\n Attention: Brad Berg
\n Facsimile No.: (206) 832-4001<\/p>\n
PAGE 19<\/p>\n
(b) If to U.S. Bank:<\/p>\n
U.S. Bank National Association
\n 10800 N.E. 8th Street
\n Suite 1000
\n Bellevue, Washington 98004
\n Attention: Ken Plank
\n Facsimile No.: (425) 450-5989<\/p>\n
The designation of the persons to be so notified or the address of such persons
\nfor the purposes of such notice may be changed from time to time by similar
\nnotice in writing, except that any communication with respect to a change of
\naddress shall be deemed to be given or made when received by the party to whom
\nsuch communication was sent.<\/p>\n
10.2 PAYMENT OF EXPENSES<\/p>\n
Whether or not the transactions hereby contemplated are consummated,
\nBorrower shall pay on demand all reasonable costs and expenses of U.S. Bank
\nincurred in connection with the preparation, negotiation, execution and delivery
\nof the Loan Documents, as well as any amendments, modifications, consents or
\nwaivers relating thereto, including, without limitation, reasonable attorneys’
\nfees and recording fees. In addition, if there shall occur any Default or Event
\nof Default, U.S. Bank shall be entitled to recover any reasonable costs and
\nexpenses incurred in connection with the preservation of rights under, and
\nenforcement of, the Loan Documents, whether or not any lawsuit is commenced, in
\nall such cases, including, without limitation, reasonable attorneys’ fees and
\ncosts (including the allocated fees of internal counsel). Costs and expenses as
\nreferred to above, shall include, without limitation, a reasonable hourly rate
\nfor collection personnel, whether employed in-house or otherwise, overhead costs
\nas reasonably allocated to the collection effort and all other expenses actually
\nincurred. Reasonable attorneys’ fees shall include, without limitation,
\nattorneys’ fees and costs incurred in connection with any bankruptcy case or
\nother insolvency proceeding commenced by or against Borrower or any Person
\ngranting a security interest in any item of Collateral, including all fees
\nincurred in connection with (a) moving from relief from the automatic stay, to
\nconvert or dismiss the case or proceeding, or to appoint a trustee or examiner,
\nor (b) proposing or opposing confirmation of a plan of reorganization or
\nliquidation, in any case without regard to the identity of the prevailing party.<\/p>\n
10.3 SETOFF<\/p>\n
Borrower grants to U.S. Bank a contractual security interest in, and
\nhereby assigns, conveys, delivers, pledges, and transfers to U.S. Bank all
\nBorrower’s right, title and interest in and to, Borrower’s accounts with U.S.
\nBank (whether checking, savings, or some other accounts), including without
\nlimitation all accounts held jointly with someone else and all accounts Borrower
\nmay open in the future, excluding all trust accounts for which the grant of a
\nsecurity interest would be prohibited by law. Borrower authorizes U.S. Bank, to
\nthe extent<\/p>\n
PAGE 20<\/p>\n
permitted by applicable law, to charge or setoff all sums owing on the Notes
\nagainst any and all such accounts.<\/p>\n
10.4 FEES AND COMMISSIONS<\/p>\n
Borrower agrees to indemnify U.S. Bank and hold it harmless with regard
\nto any commissions, fees, judgments or expenses of any nature and kind that U.S.
\nBank may become liable to pay by reason of any claims by or on behalf of
\nbrokers, finders or agents in connection with any act or failure to act by
\nBorrower or any litigation or similar proceeding arising from such claims.
\nBorrower states that it is aware of no valid basis for any such claims.<\/p>\n
10.5 NO WAIVER<\/p>\n
No failure or delay on the part of U.S. Bank or the holder of any of the
\nNote in exercising any right, power or privilege hereunder and no course of
\ndealing between Borrower and U.S. Bank or the holder of any of the Note shall
\noperate as a waiver thereof; nor shall any single or partial exercise of any
\nright, power or privilege hereunder preclude any other or further exercise
\nthereof or the exercise of any right, power or privilege. The rights and
\nremedies herein expressly provided are cumulative and not exclusive of any
\nrights or remedies that U.S. Bank or any subsequent holder of any of the Note
\nwould otherwise have. No notice to or demand on Borrower in any case shall
\nentitle Borrower to any other or further notice or demand in similar or other
\ncircumstances or shall constitute a waiver of the right of U.S. Bank to any
\nother or further action in any circumstances without notice or demand.<\/p>\n
10.6 ENTIRE AGREEMENT AND AMENDMENTS<\/p>\n
This Agreement represents the entire agreement between the parties
\nhereto with respect to the Loan and the transactions contemplated hereunder and,
\nexcept as expressly provided herein, shall not be affected by reference to any
\nother documents. This Agreement, or any provision hereof, may not be changed,
\nwaived, discharged or terminated orally, but only by an instrument in writing,
\nsigned by the party against whom enforcement of the change, waiver, discharge or
\ntermination is sought.<\/p>\n
10.7 BENEFIT OF AGREEMENT<\/p>\n
This Agreement is binding upon and inures to the benefit of Borrower and
\nU.S. Bank and their successors and assigns and all subsequent holders of any of
\nthe Note or any portion thereof. Borrower expressly acknowledges that U.S. Bank
\nis not prohibited or restricted from assigning rights or participations
\nhereunder or any portion thereof to another Person. Borrower, however, is
\nprecluded from assigning any of its respective rights or delegating any of its
\nobligations hereunder or under any of the other agreements between Borrower and
\nU.S. Bank without the prior written consent of U.S. Bank.<\/p>\n
PAGE 21<\/p>\n
10.8 SEVERABILITY<\/p>\n
If any provision of this Agreement or any of the Loan Documents is held
\ninvalid under any Applicable Laws, such invalidity shall not affect any other
\nprovision of this Agreement that can be given an effect without the invalid
\nprovision, and, to this end, the provisions hereof are severable.<\/p>\n
10.9 DESCRIPTIVE HEADINGS<\/p>\n
The descriptive headings of the several sections of this Agreement are
\ninserted for convenience only and do not affect the meaning or construction of
\nany of the provisions hereof.<\/p>\n
10.10 GOVERNING LAW<\/p>\n
Except to the extent that the federal laws of the United States of
\nAmerica provide U.S. Bank with greater rights or remedies, this Agreement and
\nthe rights and obligations of the parties hereunder and under the other Loan
\nDocuments shall be construed in accordance with and shall be governed by the
\nlaws of the state of Washington without regard to the choice of law rules
\nthereof.<\/p>\n
10.11 CONSENT TO JURISDICTION, SERVICE AND VENUE<\/p>\n
For the purpose of enforcing payment of any of the Note, performance of
\nthe obligations under any of the Note, or otherwise in connection herewith,
\nBorrower hereby consents to the jurisdiction and venue of the courts of the
\nstate of Washington or of any federal court located in such state including, but
\nnot limited to, the Superior Court of Washington for King County and the United
\nStates District Court for the Western District of Washington. Borrower hereby
\nwaives the right to contest the jurisdiction and venue of courts located in King
\nCounty, Washington, on the ground of inconvenience or otherwise and waives any
\nright to bring any action or proceeding against U.S. Bank in any court outside
\nKing County, Washington. The provisions of this Section 10.12 do not limit or
\notherwise affect the right of U.S. Bank to institute and conduct action in any
\nother appropriate manner, jurisdiction, or court.<\/p>\n
10.12 COUNTERPARTS<\/p>\n
This Agreement and each of the Loan Documents may be executed in one or
\nmore counterparts, each of which shall constitute an original agreement, but all
\nof which together shall constitute one and the same instrument.<\/p>\n
10.13 JURY WAIVER<\/p>\n
BORROWER HEREBY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM ARISING
\nOUT OF THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, WHETHER NOW OR HEREAFTER
\nARISING AND WHETHER<\/p>\n
PAGE 22<\/p>\n
SOUNDING IN CONTRACT, TORT OR OTHERWISE, AND HEREBY CONSENTS AND AGREES THAT ANY
\nSUCH CLAIM MAY, AT U.S. BANK’S ELECTION, BE DECIDED BY TRIAL WITHOUT A JURY AND
\nTHAT U.S. BANK MAY FILE AN ORIGINAL COUNTERPART OR COPY OF THIS SECTION WITH ANY
\nCOURT AS WRITTEN EVIDENCE OF THE WAIVER AND AGREEMENT CONTAINED HEREIN.<\/p>\n
10.14 STATUTORY NOTICE<\/p>\n
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT OR
\nFORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER WASHINGTON
\nLAW.<\/p>\n
IN WITNESS WHEREOF, Borrower and U.S. Bank have caused this Agreement to
\nbe duly executed by the respective, duly authorized signatories as of the date
\nfirst above written.<\/p>\n
LOUDEYE TECHNOLOGIES, INC.<\/p>\n
By: \/s\/ Bradley A. Berg
\n —————————————<\/p>\n
Name: Bradley A. Berg
\n ———————————-<\/p>\n
Title: Senior Vice President and
\n Chief Financial Officer
\n ———————————<\/p>\n
U.S. BANK NATIONAL ASSOCIATION<\/p>\n
By: \/s\/ Kevin Blair
\n —————————————<\/p>\n
Name: Kevin Blair
\n ———————————-<\/p>\n
Title: Vice President
\n ———————————<\/p>\n
PAGE 23<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8079],"corporate_contracts_industries":[9510],"corporate_contracts_types":[9561,9560],"class_list":["post-40993","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-loudeye-technologies-inc","corporate_contracts_industries-technology__programming","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\/40993","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=40993"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40993"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40993"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40993"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}