HYPERCOM CORPORATION CREDIT AGREEMENT
EXHIBIT 10.3
HYPERCOM CORPORATION
This CREDIT AGREEMENT is dated as of February 13, 2008 and entered into by and among HYPERCOM
CORPORATION, a Delaware corporation (“Company”), FRANCISCO PARTNERS II, L.P., a Delaware limited
partnership (individually, a “Lender” and, collectively with each other party becoming a Lender
from time to time, “Lenders”), and FRANCISCO PARTNERS II, L.P., a Delaware limited partnership, as
administrative agent for Lenders (in such capacity, “Administrative Agent”).
R E C I T A L S
WHEREAS, on the Funding Date, Company will purchase all of the outstanding shares of capital
stock of (i) Thales E-Transactions SA, a société anonyme incorporated and operating under the laws
of the Republic of France, whose registered office is located at 0 xxx Xxxxxxxxx, 00000 Xxxxxx,
Xxxxxx, registered under number 380 248 609 (Versailles RCS), (ii) Thales E-Transactions España, a
SA incorporated and operating under the laws of Spain, whose registered office is located at calle
Xxxxxxx Galvache, numero 56, Complejo Empresarial “Parque Norte”, Edificio Alamo, 28033 Madrid,
Spain, (iii) Thales E-Transactions GmbH, a Gesellschaft mit beschraenkter Haftung incorporated and
operating under the laws of Germany, whose registered office is located at Xxxxxx Xxxx Xxxxxxx
0000, 00000 Xxx Xxxxxxxx, Xxxxxxx, and (iv) Thales E-Transactions Ltd., a company incorporated and
operating under the laws of England and Wales, whose registered office is located at 2 Dashwood
Lang Road, the Bourne Business Park, Addlestone, Nr Weybridge, Surrey, KT15 2 NX England (n°
1498233) (each, a “Target” and, collectively, “Targets”);
WHEREAS, Lenders, at the request of Company, have agreed to extend a credit facility to
Company, the proceeds of which will be used to partially fund the Acquisition Financing
Requirements:
NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, Company, Lenders, and Administrative Agent agree as follows:
Section 1. DEFINITIONS
1.1 Certain Defined Terms.
The following terms used in this Agreement shall have the following meanings:
“Acquisition” means the transactions contemplated by the Acquisition Agreement.
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“Acquisition Agreement” means that certain Share Purchase Agreement by and among
Sellers and Company dated as of February 13, 2008, in the form delivered to Administrative
Agent and Lenders prior to their execution of this Agreement and as such agreement may be amended
from time to time thereafter to the extent permitted under subsection 6.9A.
“Acquisition Financing Requirements” means the aggregate of all amounts necessary (i) to
finance the purchase price payable in connection with the Acquisition and (ii) to pay Transaction
Costs.
“Acquisition MAC” means a material adverse effect on the business or results of operations or
financial condition (measured on the basis of the applicable accounting principles) of Targets and
their Subsidiaries taken as a whole, other than any such effect attributable to or resulting from:
(i) changes in general economic conditions; (ii) general changes in the industries in which Targets
and their Subsidiaries operate, except those events, circumstances, changes or effects that
adversely affect Targets and their Subsidiaries to a materially greater extent than they affect
other entities operating in such industries; or (iii) the public announcement or pendency of the
transactions contemplated by the Acquisition Agreement; provided, however, that no
event occurring with respect to Company, including, but not limited to, any corporate transaction
with respect to Company or Securities issued by Company, any changes in Company’s capital structure
or any change in Company’s financial condition, or any labor disturbance suffered by Targets and
their Subsidiaries as a consequence of the announcement of the transaction contemplated by the
Acquisition Agreement, shall be considered to result in an Acquisition MAC. In no event, however,
shall the existence of the Ingenico Claims constitute an “Acquisition MAC”, subject to the terms of
any Ingenico Order.
“Administrative Agent” has the meaning assigned to that term in the introduction to this
Agreement and also means and includes any successor Administrative Agent appointed pursuant to
subsection 8.5A.
“Affiliate”, as applied to any Person, means any other Person directly or indirectly
controlling, controlled by, or under common control with, that Person. For the purposes of this
definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled
by” and “under common control with”), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of that
Person, whether through the ownership of voting securities or by contract or otherwise.
“Affiliated Funds” means Funds that are administered or managed by (i) a single entity or
(ii) an Affiliate of such entity.
“Aggregate Amounts Due” has the meaning assigned to that term in subsection 9.5.
“Agreement” means this Credit Agreement dated as of the date written above.
“Approved Fund” means a Fund that is administered or managed by (i) a Lender, (ii) an
Affiliate of a Lender or (iii) an entity or an Affiliate of an entity that administers or manages a
Lender.
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“Asset Sale” means the sale by Company or any of its Subsidiaries to any Person other than
Company or any of its wholly-owned Subsidiaries of (i) any of the stock of any of Company’s
Subsidiaries, (ii) substantially all of the assets of any division or line of business of Company
or any of its Subsidiaries, or (iii) any other assets (whether tangible or intangible) of Company
or any of its Subsidiaries (other than (a) inventory sold in the ordinary course of business,
(b) Cash Equivalents, (c) sales, assignments, transfers or dispositions of accounts in the ordinary
course of business for purposes of collection and (d) any such other assets to the extent that the
aggregate value of such assets sold in any single transaction or related series of transactions is
equal to $100,000 or less); provided, however, that Asset Sales shall not include
(1) any sale or discount of accounts receivable arising in the ordinary course of business, but
only in connection with the compromise or collection thereof; or (2) any sale or exchange of
specific items of equipment, so long as the purpose of each such sale or exchange is to acquire
replacement items of equipment which are the functional equivalent of the item of equipment so sold
or exchanged and such acquisition occurs within 120 days of such sale or exchange.
“Assignment Agreement” means an Assignment and Assumption in substantially the form of
Exhibit IV annexed hereto.
“Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy”, as now and
hereafter in effect, or any successor statute.
“Business Day” means any day excluding Saturday, Sunday and any day which is a legal holiday
under the laws of the State of California or is a day on which banking institutions located in such
state are authorized or required by law or other governmental action to close.
“Capital Lease”, as applied to any Person, means any lease of any property (whether real,
personal or mixed) by that Person as lessee that, in conformity with GAAP, is accounted for as a
capital lease on the balance sheet of that Person.
“Capital Stock” means the capital stock of or other equity interests in a Person.
“Cash” means money or currency.
“Cash Equivalents” means, as at any date of determination, (i) marketable securities
(a) issued or directly and unconditionally guaranteed as to interest and principal by the United
States Government or (b) issued by any agency of the United States the obligations of which are
backed by the full faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public instrumentality thereof, in
each case maturing within one year after such date and having, at the time of the acquisition
thereof, the highest rating obtainable from either Standard & Poor’s (“S&P”) or Xxxxx’x Investors
Service, Inc. (“Moody’s”); (iii) commercial paper maturing no more than one year from the date of
creation thereof and having, at the time of the acquisition thereof, a rating of at least A-1 from
S&P or at least P-1 from Moody’s; (iv) certificates of deposit or bankers’ acceptances maturing
within one year after such date and issued or accepted by any Lender or by any commercial bank
organized under the laws of the United States of America or any state
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thereof or the District of Columbia that (a) is at least “adequately capitalized” (as defined
in the regulations of its primary Federal banking regulator) and (b) has Tier 1 capital (as defined
in such regulations) of not less than $100,000,000; and (v) shares of any money market mutual fund
that (a) has at least 95% of its assets invested continuously in the types of investments referred
to in clauses (i) and (ii) above, (b) has net assets of not less than $500,000,000, and (c) has the
highest rating obtainable from either S&P or Moody’s.
“Change in Control” means a sale of all or substantially all of the assets of Company or an
acquisition of Company by one or more other Persons by any transaction or series of transactions
(including any reorganization, merger, consolidation or share transfer) pursuant to which the
shareholders of Company immediately preceding such transaction or series of transactions own,
following such transaction or series of transactions, less than 50% of all Securities of Company
entitled to vote in the election of members of the Governing Body of Company.
“Change in Law” means the occurrence, after the date of this Agreement, of any of the
following: (i) the adoption or taking effect of any law, rule, regulation, treaty or order,
(ii) any change in any law, rule, regulation or treaty or in the administration, interpretation or
application thereof by any Government Authority, (iii) any determination of a court or other
Government Authority or (iv) the making or issuance of any request, guideline or directive (whether
or not having the force of law) by any Government Authority.
“Commitment” means the commitment of a Lender to make a Loan to Company pursuant to
subsection 2.1A, and “Commitments” means such commitments of all Lenders in the aggregate.
“Company” has the meaning assigned to that term in the introduction to this Agreement.
“Contingent Obligation”, as applied to any Person, means any direct or indirect liability,
contingent or otherwise, of that Person (i) with respect to any Indebtedness, lease, dividend or
other obligation of another if the primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of such obligation of another that
such obligation of another will be paid or discharged, or that any agreements relating thereto will
be complied with, or that the holders of such obligation will be protected (in whole or in part)
against loss in respect thereof, (ii) with respect to any letter of credit issued for the account
of that Person or as to which that Person is otherwise liable for reimbursement of drawings, or
(iii) under Hedge Agreements. Contingent Obligations shall include (a) the direct or indirect
guaranty, endorsement (otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such Person of the
obligation of another, (b) the obligation to make take-or-pay or similar payments if required
regardless of non-performance by any other party or parties to an agreement, and (c) any liability
of such Person for the obligation of another through any agreement (contingent or otherwise) (1) to
purchase, repurchase or otherwise acquire such obligation or any security therefor, or to provide
funds for the payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise) or (2) to maintain the solvency or any balance
sheet item, level of income or financial condition of another if, in the case of any
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agreement described under subclauses (1) or (2) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any Contingent Obligation
shall be equal to the amount of the obligation so guaranteed or otherwise supported or, if less,
the amount to which such Contingent Obligation is specifically limited.
“Contractual Obligation”, as applied to any Person, means any provision of any Security issued
by that Person or of any material indenture, mortgage, deed of trust, contract, undertaking,
agreement or other instrument to which that Person is a party or by which it or any of its
properties is bound or to which it or any of its properties is subject.
“Currency Agreement” means any foreign exchange contract, currency swap agreement, futures
contract, option contract, synthetic cap or other similar agreement or arrangement to which Company
or any of its Subsidiaries is a party.
“Dollars” and the sign “$” mean the lawful money of the United States of America.
“Domestic Subsidiary” means any Subsidiary of Company that is incorporated or organized under
the laws of the United States of America, any state thereof or in the District of Columbia.
“Eligible Assignee” means any Person other than a competitor of Company and its Subsidiaries.
“Employee Benefit Plan” means any “employee benefit plan” as defined in Section 3(3) of ERISA
which is or was maintained or contributed to by Company, any of its Subsidiaries or any of their
respective ERISA Affiliates.
“Environmental Claim” means any investigation, notice, notice of violation, claim, action,
suit, proceeding, demand, abatement order or other order or directive (conditional or otherwise),
by any Government Authority or any other Person, arising (i) pursuant to or in connection with any
actual or alleged violation of any Environmental Law, (ii) in connection with any Hazardous
Materials or any actual or alleged Hazardous Materials Activity, or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health, safety, natural resources or the
environment.
“Environmental Laws” means any and all applicable current or future statutes, ordinances,
orders, rules, regulations, guidance documents, judgments, Governmental Authorizations, or any
other requirements of any Government Authority relating to (i) environmental matters, including
those relating to any Hazardous Materials Activity, (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials, or (iii) occupational safety and health,
industrial hygiene, land use or the protection of human, plant or animal health or welfare, in any
manner applicable to Company or any of its Subsidiaries or any Facility.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and any successor thereto.
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“ERISA Affiliate”, as applied to any Person, means (i) any corporation that is a member of a
controlled group of corporations within the meaning of Section 414(b) of the Internal Revenue Code
of which that Person is a member; (ii) any trade or business (whether or not incorporated) that is
a member of a group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii) any member of an
affiliated service group within the meaning of Section 414(m) or (o) of the Internal Revenue Code
of which that Person, any corporation described in clause (i) above or any trade or business
described in clause (ii) above is a member. Any former ERISA Affiliate of a Person or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of such Person or such Subsidiary
within the meaning of this definition with respect to the period such entity was an ERISA Affiliate
of such Person or such Subsidiary and with respect to liabilities arising after such period for
which such Person or such Subsidiary could be liable under the Internal Revenue Code or ERISA.
“ERISA Event” means (i) a “reportable event” within the meaning of Section 4043 of ERISA and
the regulations issued thereunder with respect to any Pension Plan (excluding those for which the
provision for 30-day notice to the PBGC has been waived by regulation); (ii) the failure to meet
the minimum funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the Internal Revenue Code)
or the failure to make by its due date a required installment under Section 412(m) of the Internal
Revenue Code with respect to any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan pursuant to
Section 4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress termination
described in Section 4041(c) of ERISA; (iv) the withdrawal by Company, any of its Subsidiaries or
any of their respective ERISA Affiliates from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to terminate any Pension
Plan, or the occurrence of any event or condition which might constitute grounds under ERISA for
the termination of, or the appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability on Company, any of its Subsidiaries or any of their respective ERISA
Affiliates pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or any of their
respective ERISA Affiliates in a complete or partial withdrawal (within the meaning of Sections
4203 and 4205 of ERISA) from any Multiemployer Plan if there is any potential liability therefor,
or the receipt by Company, any of its Subsidiaries or any of their respective ERISA Affiliates of
notice from any Multiemployer Plan that it is in reorganization or insolvency pursuant to Section
4241 or 4245 of ERISA, or that it intends to terminate or has terminated under Section 4041A or
4042 of ERISA; (viii) the assertion of a material claim (other than routine claims for benefits)
against any Employee Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
Company, any of its Subsidiaries or any of their respective ERISA Affiliates in connection with any
Employee Benefit Plan that could reasonably be expected to have a Material Adverse Effect;
(ix) receipt from the Internal Revenue Service of notice of the failure of any Pension Plan (or any
other Employee Benefit Plan intended to be qualified under Section 401(a) of the Internal Revenue
Code) to qualify under Section 401(a) of the Internal Revenue Code, or the failure of any trust
forming part of any
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Pension Plan to qualify for exemption from taxation under Section 501(a) of the Internal
Revenue Code; or (x) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
“Event of Default” means each of the events set forth in Section 7.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and
any successor statute.
“Excluded Taxes” means, with respect to the Administrative Agent, any Lender, or any other
recipient of any payment to be made by or on account of any obligation of Company hereunder
(i) taxes that are imposed on the overall net income (however denominated) and franchise taxes
imposed in lieu thereof (a) by the United States, (b) by any other Government Authority under the
laws of which such Lender is organized or has its principal office or maintains its applicable
lending office, or (c) by any Government Authority solely as a result of a present or former
connection between such recipient and the jurisdiction of such Government Authority (other than any
such connection arising solely from such recipient having executed, delivered or performed its
obligations or received a payment under, or enforced, any of the Loan Documents), (ii) any branch
profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in
which Company is located, and (iii) in the case of a Foreign Lender (other than an assignee
pursuant to a request of Company under subsection 2.8), any withholding tax that (x) is imposed on
amounts payable to such Foreign Lender at the time it becomes a party hereto (or designates a new
lending office), (y) is attributable to such Foreign Lender’s failure or inability (other than as a
result of a Change in Law) to comply with its obligations under subsection 2.6B(iv), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation
of a new lending office (or assignment), to receive additional amounts from Company with respect to
such withholding tax pursuant to subsection 2.6B, or (c) is required to be deducted under
applicable law from any payment hereunder on the basis of the information provided by such Foreign
Lender pursuant to clause (d) of subsection 2.6B(iv).
“Execution Date” means February 13, 2008, the date of this Agreement.
“Facilities” means any and all real property (including all buildings, fixtures or other
improvements located thereon) now, hereafter or heretofore owned, leased, operated or used by
Company or any of its Subsidiaries or any of their respective predecessors or Affiliates.
“Financial Plan” has the meaning assigned to that term in subsection 5.1(x).
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of Company and its Subsidiaries ending on December 31 of
each calendar year.
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“Foreign Cash Equivalent” means, as at any date of determination, (i) marketable securities
issued or directly and fully guaranteed by the government of the
country within which an Investment by Company or any of its Subsidiaries has been or is being made and (ii) time
deposits and certificates of deposit (in each case maturing no more than one year from the date of
creation thereof) of commercial banks having offices in the country within which an Investment by
Company or any of its Subsidiaries has been or is being made, in each case with a long term
unsecured debt rating of at least equal to (a) the rating of the relevant government, in the event
that such government is rated below investment grade by either Moody’s or S&P, or when there is no
Moody’s or S&P rating of such government, (b) investment grade in the event that the relevant
government is rated above investment grade by either Moody’s or S&P, or (c) “A” or better to the
extent that the relevant government is rated better than “A” by either Moody’s or S&P, and (iii)
such other marketable securities as may be agreed by Company and Administrative Agent from time to
time.
“Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other
than that in which Company is resident for tax purposes. For purposes of this definition, the
United States, each state thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
“Foreign Plan” means any employee benefit plan maintained by Company or any of its
Subsidiaries that is mandated or governed by any law, rule or regulation of any Government
Authority other than the United States, any state thereof or any other political subdivision
thereof.
“Foreign Subsidiary” means any Subsidiary of Company that is not a Domestic Subsidiary.
“Francisco Partners” means Francisco Partners II, L.P., a Delaware limited partnership.
“Fund” means any Person (other than a natural Person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in
the ordinary course of its business.
“Funding and Payment Office” means (i) the office of Administrative Agent located at One
Letterman Drive, Building C – Xxxxx 000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 or (ii) such other office
of Administrative Agent as may from time to time hereafter be designated as such in a written
notice delivered by Administrative Agent to Company and each Lender.
“Funding Date” means the date of funding of the Loans; provided, that the Funding Date
shall not occur later than the Outside Date (as such term is defined in the Acquisition Agreement).
“GAAP” means, subject to the limitations on the application thereof set forth in
subsection 1.2, generally accepted accounting principles set forth in opinions and pronouncements
of the Accounting Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of the
date of determination.
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“Governing Body” means the board of directors or other body having the power to direct or
cause the direction of the management and policies of a Person that is a corporation, partnership,
trust or limited liability company.
“Government Authority” means the government of the United States or any other nation, or any
state, regional or local political subdivision or department thereof, and any other governmental or
regulatory agency, authority, body, commission, central bank, board, bureau, organ, court,
instrumentality or other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government, in each case whether federal,
state, local or foreign (including supra-national bodies such as the European Union or the European
Central Bank).
“Governmental Authorization” means any permit, license, registration, authorization, plan,
directive, accreditation, consent, order or consent decree of or from, or notice to, any Government
Authority.
“Hazardous Materials” means: (i) any chemical, material or substance at any time defined as
or included in the definition of “hazardous substances”, “hazardous wastes”, “hazardous materials”,
“extremely hazardous waste”, “acutely hazardous waste”, “radioactive waste”, “biohazardous waste”,
“pollutant”, “toxic pollutant”, “contaminant”, “restricted hazardous waste”, “infectious waste”,
“toxic substances”, or any other term or expression intended to define, list or classify substances
by reason of properties harmful to health, safety or the indoor or outdoor environment (including
harmful properties such as ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
reproductive toxicity, “TCLP toxicity” or “EP toxicity” or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or petroleum derived
substance; (iii) any drilling fluids, produced waters and other wastes associated with the
exploration, development or production of crude oil, natural gas or geothermal resources; (iv) any
flammable substances or explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment which contains any
oil or dielectric fluid containing polychlorinated biphenyls; (ix) pesticides; and (x) any other
chemical, material or substance, exposure to which is prohibited, limited or regulated by any
Government Authority or which may or could pose a hazard to the health and safety of the owners,
occupants or any Persons in the vicinity of any Facility or to the indoor or outdoor environment.
“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event
or occurrence involving any Hazardous Materials, including the use, manufacture, possession,
storage, holding, presence, existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement, removal, remediation,
disposal, disposition or handling of any Hazardous Materials, and any corrective action or response
action with respect to any of the foregoing.
“Hedge Agreement” means an Interest Rate Agreement or a Currency Agreement designed to hedge
against fluctuations in interest rates or currency values, respectively.
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“Indebtedness”, as applied to any Person, means (i) all indebtedness for borrowed money,
(ii) that portion of obligations with respect to Capital Leases that is properly classified as a
liability on a balance sheet in conformity with GAAP, (iii) notes payable and drafts accepted
representing extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price is (a) due more than
six months from the date of incurrence of the obligation in respect thereof or (b) evidenced by a
note or similar written instrument, (v) Synthetic Lease Obligations, and (vi) all indebtedness
secured by any Lien on any property or asset owned or held by that Person regardless of whether the
indebtedness secured thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person. Obligations under Interest Rate Agreements and Currency Agreements constitute (1)
in the case of Hedge Agreements, Contingent Obligations, and (2) in all other cases, Investments,
and in neither case constitute Indebtedness.
“Indemnified Liabilities” has the meaning assigned to that term in subsection 9.3.
“Indemnified Taxes” means Taxes other than Excluded Taxes.
“Indemnitee” has the meaning assigned to that term in subsection 9.3.
“Ingenico” means, collectively, Ingenico S.A., a société anonyme incorporated and operating
under the laws of the Republic of France, and, unless the context expressly states or otherwise
requires, its officers, directors, agents, Subsidiaries and Affiliates.
“Ingenico Action” means any claim, litigation, demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local, foreign or
international governmental authority or any arbitration or mediation tribunal in which the Ingenico
Claims (or a portion thereof) are at issue and involve a claim for relief based thereon. For the
avoidance of doubt, an “Ingenico Action” as used herein shall not include any shareholder
derivative claim, shareholder lawsuit or class action or any other proceeding not brought by
Ingenico.
“Ingenico Claims” means the claim filed by Ingenico on January 22, 2008, in the Commercial
Court of the High Court of Justice in England under Claim Number 2008/58 against Francisco Partners
and others seeking, inter alia, damages and declaratory relief with respect to an alleged breach by
Francisco Partners of a March 2006 non-disclosure agreement, and any related claims based upon such
alleged breach (including claims that entering into or consummating the transactions contemplated
by this Agreement constitutes such a breach) whether brought in such U.K. proceeding or other
Ingenico Action (including any against Company with respect to the foregoing).
“Ingenico Order” means any judgment, ruling, decree or order of a court of competent
jurisdiction that is not stayed rendered in an Ingenico Action which order has the effect of
prohibiting the consummation of the transaction contemplated by this Agreement in the manner set
forth herein or which results in a judgment against Company in respect of any Ingenico Claim or as
a result thereof. For the avoidance of doubt, an “Ingenico Order” as used herein shall not
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include any shareholder derivative claim, shareholder lawsuit or class action or any other
proceeding not brought by Ingenico.
“Intellectual Property” means all patents, trademarks, tradenames, copyrights, technology,
software, know-how and processes used in or necessary for the conduct of the business of Company
and its Subsidiaries.
“Intercreditor Agreement” has the meaning assigned to that term in subsection 9.20.
“Interest Payment Date” means each March 31, June 30, September 30 and December 31 of each
year, commencing on the first such date to occur after the Funding Date.
“Interest Rate Agreement” means any interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement or other similar agreement or arrangement to which Company or any of
its Subsidiaries is a party.
“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended to the date hereof
and from time to time hereafter, and any successor statute.
“Investment” means (i) any direct or indirect purchase or other acquisition by Company or any
of its Subsidiaries of, or of a beneficial interest in, any Securities of any other Person
(including any Subsidiary of Company), (ii) any direct or indirect redemption, retirement, purchase
or other acquisition for value, by any Subsidiary of Company from any Person other than Company or
any of its Subsidiaries, of any equity Securities of such Subsidiary, (iii) any direct or indirect
loan, advance (other than advances to employees for moving, entertainment and travel expenses,
commissions, drawing accounts and similar expenditures in the ordinary course of business) or
capital contribution by Company or any of its Subsidiaries to any other Person, including all
indebtedness and accounts receivable from that other Person that are not current assets or did not
arise from sales to that other Person in the ordinary course of business, or (iv) Interest Rate
Agreements or Currency Agreements not constituting Hedge Agreements. The amount of any Investment
shall be the original cost of such Investment plus the cost of all additions thereto,
without any adjustments for increases or decreases in value, or write-ups, write-downs or
write-offs with respect to such Investment (other than adjustments for the repayment of, or the
refund of capital with respect to, the original principal amount of any such Investment).
“Joint Venture” means a joint venture, partnership or other similar arrangement, whether in
corporate, partnership or other legal form.
“Lender” and “Lenders” means the Persons identified as “Lenders” and listed on the signature
pages of this Agreement, together with their successors and permitted assigns pursuant to
subsection 9.1.
“Lien” means any lien, mortgage, pledge, assignment, security interest, charge or encumbrance
of any kind (including any conditional sale or other title retention agreement, any lease in the
nature thereof, and any agreement to give any security interest) and any option, trust
or other preferential arrangement having the practical effect of any of the foregoing.
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“Loan” or “Loans” means one or more of the Loans made by Lenders to Company pursuant to
subsection 2.1A.
“Loan Documents” means this Agreement and the Notes.
“Loan Exposure”, with respect to any Lender, means, as of any date of determination (i) prior
to the funding of the Loans, the amount of that Lender’s Commitment, and (ii), after the funding of
the Loans, the outstanding principal amount of the Loan of that Lender.
“Margin Stock” has the meaning assigned to that term in Regulation U of the Board of Governors
of the Federal Reserve System as in effect from time to time.
“Material Adverse Effect” means (i) a material adverse effect upon the business, operations,
properties, assets, or condition (financial or otherwise) of Company and its Subsidiaries taken as
a whole or (ii) the impairment of the ability of Company to perform in any material respect, or of
Administrative Agent or Lenders to enforce, the Obligations. In no event, however, shall the
existence of the Ingenico Claims constitute a “Material Adverse Effect”, subject to the terms of
any Ingenico Order.
“Maturity Date” means the date that is four years after the Funding Date.
“Multiemployer Plan” means any Employee Benefit Plan that is a “multiemployer plan” as defined
in Section 3(37) of ERISA.
“Non-Consenting Lender” has the meaning assigned to that term in subsection 2.8.
“Notes” means any promissory notes of Company issued pursuant to subsection 2.1E to evidence
the Loans of any Lenders, substantially in the form of Exhibit II annexed hereto.
“Notice of Borrowing” means a notice substantially in the form of Exhibit I annexed
hereto.
“Obligations” means all obligations of every nature of Company from time to time owed to
Administrative Agent, Lenders or any of them under the Loan Documents, whether for principal,
interest, fees, expenses, indemnification or otherwise.
“Officer” means the president, chief executive officer, a vice president, chief financial
officer, treasurer, controller, general partner (if an individual), managing member (if an
individual) or other individual appointed by the Governing Body or the Organizational Documents of
a corporation, partnership, trust or limited liability company to serve in a similar capacity as
the foregoing.
“Officer’s Certificate”, as applied to any Person that is a corporation, partnership, trust or
limited liability company, means a certificate executed on behalf of such Person by one or more
Officers of such Person or one or more Officers of a general partner or a managing member
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if such general partner or managing member is a corporation, partnership, trust or limited
liability company.
“Operating Lease”, as applied to any Person, means any lease (including leases that may be
terminated by the lessee at any time) of any property (whether real, personal or mixed) that is not
a Capital Lease other than any such lease under which that Person is the lessor.
“Organizational Documents” means the documents (including Bylaws, if applicable) pursuant to
which a Person that is a corporation, partnership, trust or limited liability company is organized.
“Other Taxes” means all present or future stamp or documentary taxes or any other excise or
property taxes, charges, fees, expenses or similar levies arising from any payment made hereunder
or under any other Loan Document or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan Document.
“Participant” means a purchaser of a participation in the rights and obligations under this
Agreement pursuant to subsection 9.1C.
“PBGC” means the Pension Benefit Guaranty Corporation or any successor thereto.
“Pension Plan” means any Employee Benefit Plan, other than a Multiemployer Plan, that is
subject to Section 412 of the Internal Revenue Code or Section 302 of ERISA.
“Permitted Acquisition” means the acquisition of all or any portion of the business and
assets, or Capital Stock, of any Person which acquisition is permitted pursuant to clause (v) of
subsection 6.3.
“Permitted Encumbrances” means the following types of Liens (excluding any such Lien imposed
pursuant to Section 401(a)(29) or 412(n) of the Internal Revenue Code or by ERISA, any such Lien
imposed by a Government Authority in connection with any Foreign Plan, any such Lien relating to or
imposed in connection with any Environmental Claim, and):
(i) Liens for taxes, assessments or governmental charges or claims the payment of
which is not, at the time, required by subsection 5.3;
(ii) statutory Liens of landlords, Liens of collecting banks under the UCC on items
in the course of collection, statutory Liens and rights of set-off of banks,
statutory Liens of carriers, warehousemen, mechanics, repairmen, workmen and
materialmen, and other Liens imposed by law, in each case incurred in the ordinary
course of business (a) for amounts not yet overdue or (b) for amounts that are
overdue and that (in the case of any such amounts overdue for a period in excess of
5 days) are being contested in good faith by appropriate proceedings, so long as
such reserves or other appropriate provisions, if any, as shall be required by GAAP
shall have been made for any such contested amounts;
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(iii) deposits made in the ordinary course of business in connection with workers’
compensation, unemployment insurance and other types of social security, or to
secure the performance of statutory obligations, bids, surety and appeal bonds,
leases, government contracts, performance bonds, trade contracts, and other similar
obligations (exclusive of obligations for the payment of borrowed money);
(iv) any attachment or judgment Lien not constituting an Event of Default under
subsection 7.8;
(v) licenses (with respect to Intellectual Property and other property), leases or
subleases granted to third parties not interfering in any material respect with the
ordinary conduct of the business of Company or any of its Subsidiaries;
(vi) easements, rights-of-way, restrictions, encroachments, and other minor defects
or irregularities in title, in each case which do not and will not interfere in any
material respect with the ordinary conduct of the business of Company or any of its
Subsidiaries;
(vii) any (a) interest or title of a lessor or sublessor under any lease not
prohibited by this Agreement, (b) Lien or restriction that the interest or title of
such lessor or sublessor may be subject to, or (c) subordination of the interest of
the lessee or sublessee under such lease to any Lien or restriction referred to in
the preceding clause (b), so long as the holder of such Lien or restriction agrees
to recognize the rights of such lessee or sublessee under such lease;
(viii) Liens arising from filing UCC financing statements relating solely to leases
not prohibited by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a matter of law to
secure payment of customs duties in connection with the importation of goods;
(x) Liens incurred in favor of insurance companies (or their financing affiliates)
in connection with the financing of insurance premiums in the ordinary course of
business;
(xi) any zoning or similar law or right reserved to or vested in any Government
Authority to control or regulate the use of any real property; and
(xii) Liens securing obligations (other than obligations representing Indebtedness
for borrowed money) under operating, reciprocal easement or similar agreements
entered into in the ordinary course of business of Company and its Subsidiaries.
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“Person” means and includes natural persons, corporations, limited partnerships, general
partnerships, limited liability companies, limited liability partnerships, joint stock
companies, Joint Ventures, associations, companies, trusts, banks, trust companies, land trusts,
business trusts or other organizations, whether or not legal entities, and Government Authorities.
“Potential Event of Default” means a condition or event that, after notice or lapse of time or
both, would constitute an Event of Default.
“Proceedings” means any action, suit, proceeding (whether administrative, judicial or
otherwise), governmental investigation or arbitration.
“Pro Rata Share” means with respect to all payments, computations and other matters relating
to the Commitment or the Loan of any Lender, the percentage obtained by dividing (x) the
Loan Exposure of that Lender by (y) the aggregate Loan Exposure of all Lenders as the
applicable percentage may be adjusted by assignments permitted pursuant to subsection 9.1. The
initial Pro Rata Share of each Lender for purposes of the preceding sentence is set forth opposite
the name of that Lender in Schedule 2.1 annexed hereto.
“Register” has the meaning assigned to that term in subsection 2.1D.
“Registration Rights Agreement” means that certain registration rights agreement dated as of
the Funding Date by and among Company and Francisco Partners.
“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System, as
in effect from time to time.
“Related Agreements” means, collectively, the Acquisition Agreement, the Registration Rights
Agreement and the Warrant.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping,
deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Materials into
the indoor or outdoor environment (including the abandonment or disposal of any barrels, containers
or other closed receptacles containing any Hazardous Materials), including the movement of any
Hazardous Materials through the air, soil, surface water or groundwater.
“Requisite Lenders” means Lenders having or holding more than 50% of the sum of the aggregate
Loan Exposure of all Lenders
“Restricted Junior Payment” means (i) any dividend or other distribution, direct or indirect,
on account of any shares of any class of stock of Company now or hereafter outstanding, except a
dividend payable solely in shares of that class of stock to the holders of that class, (ii) any
redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value,
direct or indirect, of any shares of any class of stock of Company now or hereafter outstanding
(other than as may be deemed to occur upon the exercise of stock options, warrants or other
convertible or exchangeable securities), (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire shares of any class of
stock of Company now or hereafter outstanding, and (iv) any payment or prepayment of
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principal of, premium, if any, or interest on, or redemption, purchase, retirement, defeasance
(including in-substance or legal defeasance), sinking fund or similar payment with respect to, any
Subordinated Indebtedness.
“Secured Working Capital Debt” means Indebtedness secured by certain assets of Company and its
Subsidiaries in an aggregate amount not to exceed $50 million for working capital purposes;
provided that, Company and Administrative Agent agree to discuss in good faith increases to
such amount based upon the achievement of improved leverage ratios or other financial tests.
“Securities” means any stock, shares, partnership interests, voting trust certificates,
certificates of interest or participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured,
convertible, subordinated, certificated or uncertificated, or otherwise, or in general any
instruments commonly known as “securities” or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
“Securities Account” means an account to which a financial asset is or may be credited in
accordance with an agreement under which the Person maintaining the account undertakes to treat the
Person for whom the account is maintained as entitled to exercise the rights that comprise the
financial asset.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and any
successor statute.
“Seller” means, individually, any of (i) Thales SA, (ii) Thales E-Transactions SA, a société
anonyme incorporated and operating under the laws of the Republic of France, whose registered
office is located at 0 xxx Xxxxxxxxx, 00000 Xxxxxx, Xxxxxx, registered under number 380 248 609
(Versailles RCS), (iii) Thales Holding GmbH, a Gesellschaft mit beschraenkter Haftung incorporated
and operating under the laws of Germany, whose registered office is located at Xxxxx xxx Xxxxxx 00,
000000 Xxxxxx, Xxxxxxx, and (iv) Thales UK Limited, a company incorporated and operating under the
laws of England and Wales, whose registered office is located at 2 Dashwood Lang Road, The Bourne
Business Park, Addlestone, Nr Weybridge, Surrey, KT15 2NS, England (Company n°868273), and
“Sellers” means, collectively, all such Persons.
“Solvent”, with respect to any Person, means that as of the date of determination, in light of
all of the facts and circumstances existing at such time, both (i)(a) the then fair saleable value
of the property of such Person is (1) greater than the total amount of liabilities (including
contingent liabilities) of such Person and (2) not less than the amount that will be required to
pay the probable liabilities on such Person’s then existing debts as they become absolute and due
considering all financing alternatives and potential asset sales reasonably available to such
Person; (b) such Person’s capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (c) such Person does not intend to incur, or believe
(nor should it reasonably believe) that it will incur, debts beyond its ability to pay such debts
as
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they become due; and (ii) such Person is “solvent” within the meaning given that term and
similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes
of this definition, the amount of any contingent liability at any time shall be computed as the
amount that, in light of all of the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured liability.
“Specified Representations” means the representations and warranties contained in subsections
4.1A, 4.1B, 4.2A, 4.2D, 4.9 and 4.10.
“Subordinated Indebtedness” means any Indebtedness of Company incurred from time to time and
subordinated by its terms in right of payment to the Obligations.
“Subsidiary”, with respect to any Person, means any corporation, partnership, trust, limited
liability company, association, Joint Venture or other business entity of which more than 50% of
the total voting power of shares of stock or other ownership interests entitled (without regard to
the occurrence of any contingency) to vote in the election of the members of the Governing Body is
at the time owned or controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof.
“Subsidiary Debt Conversions” means the conversion of Indebtedness owed by Subsidiaries to
Company into additional equity of such Subsidiary to be held by Company relating to intercompany
inventory transfers for tax optimization purposes done in the ordinary course of business.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (i) a so-called
synthetic, off-balance sheet or tax retention lease, or (ii) an agreement for the use or possession
of property creating obligations that do not appear on the balance sheet of such Person but which,
upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).
“Target” and “Targets” have the meaning assigned to such terms in the recitals to this
Agreement.
“Tax” or “Taxes” means any present or future tax, levy, impost, duty, fee, assessment,
deduction, withholding or other charge of any nature and whatever called, by whomsoever, on
whomsoever and wherever imposed, levied, collected, withheld or assessed, including interest,
penalties, additions to tax and any similar liabilities with respect thereto.
“Thales SA” means Thales SA, a société anonyme incorporated and operating under the laws of
the Republic of France, whose registered office is located at 00, xxx xx Xxxxxxxx, 00000 Xxxxxxx
xxx Xxxxx, Xxxxxx, registered under number 552 059 024 RCS Nanterre.
“Transaction Costs” means the fees, costs and expenses payable by Company on or before the
Funding Date in connection with the transactions contemplated by the Loan Documents.
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“UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.
“Unasserted Obligations” means, at any time, Obligations for taxes, costs, indemnifications,
reimbursements, damages and other liabilities (except for the principal of and interest on, and
fees relating to, any Indebtedness) in respect of which no claim or demand for payment has been
made (or, in the case of Obligations for indemnification, no notice for indemnification has been
issued by the Indemnitee) at such time.
“Warrant” means that certain warrant to purchase common stock issued by Company on the Funding
Date.
1.2 Accounting Terms; Utilization of GAAP for Purposes of Calculations Under
Agreement.
Except as otherwise expressly provided in this Agreement, all accounting terms not otherwise
defined herein shall have the meanings assigned to them in conformity with GAAP. Financial
statements and other information required to be delivered by Company to Lenders pursuant to clauses
(ii), (iii) and (x) of subsection 5.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation. Calculations in connection with the definitions, covenants and other
provisions of this Agreement shall utilize GAAP as in effect on the date of determination, applied
in a manner consistent with that used in preparing the financial statements referred to in
subsection 4.3.
1.3 Other Definitional Provisions and Rules of Construction.
A. Any of the terms defined herein may, unless the context otherwise requires, be used in the
singular or the plural, depending on the reference.
B. References to “Sections” and “subsections” shall be to Sections and subsections,
respectively, of this Agreement unless otherwise specifically provided. Section and
subsection headings in this Agreement are included herein for convenience of reference only and
shall not constitute a part of this Agreement for any other purpose or be given any substantive
effect.
C. The use in any of the Loan Documents of the word “include” or “including”, when following
any general statement, term or matter, shall not be construed to limit such statement, term or
matter to the specific items or matters set forth immediately following such word or to similar
items or matters, whether or not nonlimiting language (such as “without limitation” or “but not
limited to” or words of similar import) is used with reference thereto, but rather shall be deemed
to refer to all other items or matters that fall within the broadest possible scope of such general
statement, term or matter.
D. Unless otherwise expressly provided herein, references to Organizational Documents,
agreements (including the Loan Documents) and other contractual instruments shall be deemed to
include all subsequent amendments, restatements, extensions, supplements and other modifications
thereto.
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Section 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 Commitments; Making of Loans; the Register; Optional Notes.
A. Commitments. Subject to the terms and conditions of this Agreement and in reliance upon
the representations and warranties of Company herein set forth, each Lender hereby severally agrees
to make a loan to Company on the Funding Date an amount not exceeding its Pro Rata Share of the
aggregate amount of the Commitments to be used for the purposes identified in subsection 2.5A. The
amount of each Lender’s Commitment is set forth opposite its name on Schedule 2.1 annexed
hereto and the aggregate amount of the Commitments is $60,000,000; provided that the amount
of the Commitment of each Lender shall be adjusted to give effect to any assignment of such
Commitment pursuant to subsection 9.1B. Company may make only one borrowing under the Commitments.
Amounts borrowed under this subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed.
B. Borrowing Mechanics. Company shall deliver to Administrative Agent a duly executed Notice
of Borrowing no later than 10:00 a.m. (San Francisco time) at least one Business Day in advance of
the Funding Date. In lieu of delivering a Notice of Borrowing, Company may give Administrative
Agent telephonic notice by the required time of any proposed borrowing under this subsection 2.1B;
provided that such notice shall be promptly confirmed in writing by delivery of a duly
executed Notice of Borrowing to Administrative Agent on or before the Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability to Company in acting
upon any telephonic notice referred to above that Administrative Agent believes in good faith to
have been given by an Officer or other person authorized to borrow on behalf of Company or for
otherwise acting in good faith under this subsection 2.1B and upon funding of Loans by Lenders in
accordance with this Agreement, pursuant to any such telephonic notice Company shall have effected
Loans hereunder.
Company shall notify Administrative Agent prior to the funding of any Loans in the event that
any of the matters to which Company is required to certify in the applicable Notice of Borrowing is
no longer true and correct as of the Funding Date, and the acceptance by Company of the proceeds of
any Loans shall constitute a re-certification by Company, as of the Funding Date, as to the matters
to which Company is required to certify in the Notice of Borrowing.
C. Disbursement of Funds. All Loans shall be made by Lenders simultaneously and
proportionately to their respective Pro Rata Shares, it being understood that neither
Administrative Agent nor any Lender shall be responsible for any default by any other Lender in
that other Lender’s obligation to make a Loan requested hereunder nor shall the amount of the
Commitment of any Lender be increased or decreased as a result of a default by any other Lender in
that other Lender’s obligation to make a Loan requested hereunder. Upon satisfaction or waiver of
the conditions precedent specified in Section 3, Administrative Agent shall make the proceeds of
the Loans available to Company on the Funding Date by causing an amount of same day funds in
Dollars equal to the proceeds of all such Loans received by
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Administrative Agent from Lenders to be credited to the account of Company at the Funding and
Payment Office.
D. The Register. Administrative Agent, acting for these purposes solely as an agent of
Company (it being acknowledged that Administrative Agent, in such capacity, and its officers,
directors, employees, agent and affiliates shall constitute Indemnitees under subsection 9.3),
shall maintain (and make available for inspection by Company upon reasonable prior notice at
reasonable times) at its address referred to in subsection 9.8 a register for the recordation of,
and shall record, the names and addresses of Lenders and the respective amounts of the Commitment
and Loan of each Lender from time to time (the “Register”). Company, Administrative Agent shall
deem and treat the Persons listed as Lenders in the Register as the holders and owners of the
corresponding Commitments and Loans listed therein for all purposes hereof; all amounts owed with
respect to any Commitment or Loan shall be owed to the Lender listed in the Register as the owner
thereof; and any request, authority or consent of any Person who, at the time of making such
request or giving such authority or consent, is listed in the Register as a Lender shall be
conclusive and binding on any subsequent holder, assignee or transferee of the corresponding
Commitments or Loans. Each Lender shall record on its internal records the amount of its Loans and
Commitments and each payment in respect hereof, and any such recordation shall be conclusive and
binding on Company, absent manifest error, subject to the entries in the Register, which shall,
absent manifest error, govern in the event of any inconsistency with any Lender’s records. Failure
to make any recordation in the Register or in any Lender’s records, or any error in such
recordation, shall not affect any Loans or Commitments or any Obligations in respect of any Loans.
E. Optional Notes. If so requested by any Lender by written notice to Company (with a copy to
Administrative Agent) at least two Business Days prior to the Funding Date or at any time
thereafter, Company shall execute and deliver to such Lender (and/or, if applicable and if so
specified in such notice, to any Person who is an assignee of such Lender pursuant to
subsection 9.1) on the Funding Date (or, if such notice is delivered after the Funding Date,
promptly after Company’s receipt of such notice) a promissory note or promissory notes to evidence
such Lender’s Loan substantially in the form of Exhibit II annexed hereto, with appropriate
insertions.
2.2 Interest on the Loans.
A. Rate of Interest. Subject to the provisions of subsections 2.6, each Loan shall bear
interest on the unpaid principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate of 10.00% per annum.
B. Interest Payments. Subject to the provisions of subsection 2.2C, interest on each Loan
shall be payable in arrears on and to each Interest Payment Date applicable to that Loan, upon any
prepayment of that Loan (to the extent accrued on the amount being prepaid) and at maturity;
provided that, so long as no Event of Default shall have occurred and be continuing,
interest on each Loan may, at the option of Company (which option must be exercised by Company in
identical fashion with respect to each outstanding Loan and each Lender), be paid in kind by
capitalizing such interest and adding it to the aggregate principal amount of each Loan,
20
pro rata, effective as of the applicable Interest Payment Date; provided further that Company
shall deliver to Administrative Agent an irrevocable notice that it will exercise such right,
specifying the amount of interest to be so paid in kind at least three (3) Business Days prior to
any Interest Payment Date as to which such right is to be exercised.
C. Default Rate. Upon the occurrence and during the continuation of any Event of Default, the
outstanding principal amount of all Loans and, to the extent permitted by applicable law, any
interest payments thereon not paid when due and any fees and other amounts then due and payable
hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under
the Bankruptcy Code or other applicable bankruptcy laws) payable upon demand by Administrative
Agent at a rate that is 2% per annum in excess of the interest rate otherwise payable under this
Agreement with respect to the applicable Loans (or, in the case of any such fees and other amounts,
at a rate which is 2% per annum in excess of the interest rate otherwise payable under this
Agreement). Payment or acceptance of the increased rates of interest provided for in this
subsection 2.2C is not a permitted alternative to timely payment and shall not constitute a waiver
of any Event of Default or otherwise prejudice or limit any rights or remedies of Administrative
Agent or any Lender.
D. Computation of Interest. Interest on the Loans shall be computed on the basis of a 360-day
year. In computing interest on any Loan, the date of the making of such Loan shall be included,
and the date of payment of such Loan shall be excluded.
E. Maximum Rate. Notwithstanding the foregoing provisions of this subsection 2.2, in no event
shall the rate of interest payable by Company with respect to any Loan exceed the maximum rate of
interest permitted to be charged under applicable law.
2.3 Fees.
Company agrees to pay to Administrative Agent such fees in the amounts and at the times
separately agreed upon between Company and Administrative Agent.
2.4 Repayments, Prepayments, General Provisions Regarding Payments.
A. Scheduled Payments of Loans.
The Loans and all other amounts owed hereunder with respect to the Loans shall be paid in full
no later than the Maturity Date.
B. Prepayments.
(i) Voluntary Prepayments. Company may, upon not less than one Business Day’s
prior written or telephonic notice given to Administrative Agent by 12:00 noon (San
Francisco time) on the date required and, if given by telephone, promptly confirmed in
writing to Administrative Agent, who will promptly notify each Lender whose Loans are to be
prepaid of such prepayment, at any time and from time to time prepay,
without premium or penalty any Loans on any Business Day in whole or
in part in an aggregate
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minimum amount of $5,000,000 and multiples of $5,000,000 in excess of that amount (or,
if the amount of the Loans is less than such aggregate minimum amount, an amount equal to
the amount of the Loans). Notice of prepayment having been given as aforesaid, the
principal amount of the Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be applied as
specified in subsection 2.4B(ii).
(ii) Application of Voluntary Prepayments. Any voluntary prepayments of the
Loans pursuant to subsection 2.4B(i) shall be applied to reduce first, accrued but
unpaid interest and fees, and thereafter, the principal of the Loans set forth in
subsection 2.4A.
C. General Provisions Regarding Payments.
(i) Manner and Time of Payment. All payments by Company of principal,
interest, fees and other Obligations shall be made in Dollars in same day funds, without
defense, setoff or counterclaim, free of any restriction or condition, and delivered to
Administrative Agent not later than 12:00 noon (San Francisco time) on the date due at the
Funding and Payment Office for the account of Lenders; funds received by Administrative
Agent after that time on such due date shall be deemed to have been paid by Company on the
next succeeding Business Day.
(ii) Application of Payments to Principal and Interest. All payments in
respect of the principal amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments shall be applied to the
payment of interest before application to principal.
(iii) Apportionment of Payments. Aggregate payments of principal and interest
shall be apportioned among all outstanding Loans to which such payments relate, in each case
proportionately to Lenders’ respective Pro Rata Shares. Administrative Agent shall promptly
distribute to each Lender, at the account specified in the payment instructions delivered to
Administrative Agent by such Lender, its Pro Rata Share of all such payments received by
Administrative Agent when received by Administrative Agent pursuant to subsections 2.3.
(iv) Payments on Business Days. Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, such payment shall be made on
the next succeeding Business Day and such extension of time shall be included in the
computation of the payment of interest hereunder or of the commitment fees hereunder, as the
case may be.
D. Application of Payments after Event of Default. Upon the occurrence and during the
continuation of an Event of Default, if requested by Requisite Lenders, or upon acceleration of the
Obligations pursuant to Section 7, all payments received by Administrative Agent (subject to any
applicable intercreditor agreement) may, in the discretion of Administrative Agent, be held by
Administrative Agent and (then or at any time thereafter) applied in full or in part by
Administrative Agent, in each case in the following order of priority:
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(i) to the payment of all amounts for which Administrative Agent is entitled to
compensation (including the fees described in subsection 2.3), reimbursement and
indemnification under any Loan Document and all advances made by Administrative Agent
thereunder for the account of Company, and to the payment of all costs and expenses paid or
incurred by Administrative Agent in connection with the Loan Documents, all in accordance
with subsections 8.4, 9.2 and 9.3 and the other terms of this Agreement and the Loan
Documents;
(ii) thereafter, to the payment of all other Obligations for the ratable benefit of the
holders thereof (subject to the provisions of subsection 2.4C(ii) hereof); and
(iii) thereafter, to the payment to or upon the order of Company or to whosoever may be
lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
2.5 Use of Proceeds.
A. Loans. The proceeds of the Loans shall be applied by Company to fund the Acquisition
Financing Requirements.
B. Margin Regulations. No portion of the proceeds of any borrowing under this Agreement shall
be used by Company or any of its Subsidiaries in any manner that might cause the borrowing or the
application of such proceeds to violate Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing and such use of
proceeds.
2.6 Increased Costs; Taxes; Capital Adequacy.
A. Compensation for Increased Costs. Subject to the provisions of subsection 2.6B (which
shall be controlling with respect to the matters covered thereby), in the event that any Lender
shall determine (which determination shall, absent manifest error, be final and conclusive and
binding upon all parties hereto) that any Change in Law:
(i) subjects such Lender to any additional tax of any kind whatsoever with respect to
this Agreement or any of its obligations hereunder or any payments to such Lender of
principal, interest, fees or any other amount payable hereunder (except for the imposition
of, or any change in the rate of, any Excluded Tax payable by such Lender);
(ii) imposes, modifies or holds applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets held by, or deposits or other
liabilities in or for the account of, or advances or loans by, or other credit extended by,
or any other acquisition of funds by, any office of such Lender; or
(iii) imposes any other condition (other than with respect to Taxes) on or affecting
such Lender or its obligations hereunder;
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and the result of any of the foregoing is to increase the cost to such Lender of agreeing to make,
making or maintaining its Loans or Commitments or agreeing to purchase, purchasing or maintaining
any participation therein or to reduce any amount received or receivable by such Lender with
respect thereto; then, in any such case, Company shall promptly pay to such Lender, upon receipt of
the statement referred to in subsection 2.7A, such additional amount or amounts (in the form of an
increased rate of, or a different method of calculating, interest or otherwise as such Lender in
its reasonable discretion shall determine) as may be necessary to compensate such Lender on an
after-tax basis for any such increased cost or reduction in amounts received or receivable
hereunder. Company shall not be required to compensate a Lender pursuant to this subsection 2.6A
for any increased cost or reduction in respect of a period occurring more than nine months prior to
the date on which such Lender notifies Company of such Change in Law and such Lender’s intention to
claim compensation therefor, except, if the Change in Law giving rise to such increased cost or
reduction is retroactive, no such time limitation shall apply so long as such Lender requests
compensation within nine months from the date on which the applicable Government Authority informed
such Lender of such Change in Law.
B. Taxes.
(i) Payments to Be Free and Clear. Any and all payments by or on account of
any obligation of Company under this Agreement and the other Loan Documents shall be made
free and clear of, and without any deduction or withholding on account of, any Indemnified
Taxes or Other Taxes.
(ii) Grossing-up of Payments. If Company or any other Person is required by
law to make any deduction or withholding on account of any Tax from any sum paid or payable
by Company to Administrative Agent or any Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any such requirement or any
change in any such requirement as soon as Company becomes aware of it;
(b) Company shall timely pay any such Tax to the relevant Government Authority
when such Tax is due, in accordance with applicable law;
(c) unless such Tax is an Excluded Tax, the sum payable by Company shall be
increased to the extent necessary to ensure that, after making the required
deductions (including deductions applicable to additional sums payable under this
subsection 2.6B(ii)), Administrative Agent or such Lender, as the case may be,
receives on the due date a net sum equal to the sum it would have received had no
such deduction been required or made; and
(d) within 30 days after paying any sum from which it is required by law to
make any such deduction, and within 30 days after the due date of payment of any Tax
which it is required by clause (b) above to pay, Company shall deliver to
Administrative Agent the original or a certified copy of an official receipt or
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other document satisfactory to the other affected parties to evidence the
payment and its remittance to the relevant Government Authority.
(iii) Indemnification by Company. Company shall indemnify Administrative Agent
and each Lender, within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including for the full amount of any Indemnified Taxes or
Other Taxes imposed or asserted on or attributable to amounts payable under this
subsection 2.6B(iii)) paid by Administrative Agent or such Lender, as the case may be, and
any penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Government Authority. A certificate as to the amount of such
payment or liability delivered to Company by a Lender (with a copy to Administrative Agent),
or by Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive
absent manifest error.
(iv) Tax Status of Lenders. Unless not legally entitled to do so:
(a) any Lender, if requested by Company or Administrative Agent, shall deliver
such forms or other documentation prescribed by applicable law or reasonably
requested by Company or Administrative Agent as will enable Company or
Administrative Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements;
(b) any Foreign Lender that is entitled to an exemption from or reduction of
any Tax with respect to payments hereunder or under any other Loan Document shall
deliver to Company and Administrative Agent, on or prior to the date on which such
Foreign Lender becomes a Lender under this Agreement (and from time to time
thereafter, as may be necessary in the determination of Company or Administrative
Agent, each in the reasonable exercise of its discretion), such properly completed
and duly executed forms or other documentation prescribed by applicable law as will
permit such payments to be made without withholding or at a reduced rate of
withholding;
(c) without limiting the generality of the foregoing, in the event that Company
is resident for tax purposes in the United States, any Foreign Lender shall deliver
to Company and Administrative Agent (in such number of copies as shall be requested
by the recipient) on or prior to the date on which such Foreign Lender becomes a
Lender under this Agreement (and from time to time thereafter, as may be necessary
in the determination of Company or Administrative Agent, each in the reasonable
exercise of its discretion), whichever of the following is applicable:
(1) properly completed and duly executed copies of Internal Revenue
Service Form W-8BEN claiming eligibility for benefits of an income tax
treaty to which the United States is a party,
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(2) properly completed and duly executed copies of Internal Revenue
Service Form W-8ECI,
(3) in the case of a Foreign Lender claiming the benefits of the
exemption “portfolio interest” under Section 881(c) of the Internal Revenue
Code, (a) a duly executed certificate to the effect that such Foreign Lender
is not (i) a “bank” within the meaning of Section 881(c)(3)(a) of the
Internal Revenue Code, (ii) a ten-percent shareholder (within the meaning of
Section 881(c)(3)(b) of the Internal Revenue Code) of Company or (iii) a
controlled foreign corporation described in Section 881(c)(3)(c) of the
Internal Revenue Code and (b) properly completed and duly executed copies of
Internal Revenue Service Form W-8BEN,
(4) properly completed and duly executed copies of any other form
prescribed by applicable law as a basis for claiming exemption from or a
reduction in any Tax,
in each case together with such supplementary documentation as may be prescribed by
applicable law to permit Company and Administrative Agent to determine the
withholding or deduction required to be made, if any;
(d) without limiting the generality of the foregoing, in the event that Company
is resident for tax purposes in the United States, any Foreign Lender that does not
act or ceases to act for its own account with respect to any portion of any sums
paid or payable to such Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender) shall deliver to Administrative
Agent and Company (in such number of copies as shall be requested by the recipient),
on or prior to the date such Foreign Lender becomes a Lender, or on such later date
when such Foreign Lender ceases to act for its own account with respect to any
portion of any such sums paid or payable, and from time to time thereafter, as may
be necessary in the determination of Company or Administrative Agent (each in the
reasonable exercise of its discretion):
(1) duly executed and properly completed copies of the forms and
statements required to be provided by such Foreign Lender under
clause (c) of subsection 2.6B(iv), to establish the portion of any such sums
paid or payable with respect to which such Lender acts for its own account
and may be entitled to an exemption from or a reduction of the applicable
Tax, and
(2) duly executed and properly completed copies of Internal Revenue
Service Form W-8IMY (or any successor forms) properly completed and duly
executed by such Foreign Lender, together with any information, if any, such
Foreign Lender chooses to transmit with such form, and any other certificate
or statement of exemption required under the Internal Revenue Code or the
regulations thereunder, to establish that
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such Foreign Lender is not acting for its own account with respect to a
portion of any such sums payable to such Foreign Lender;
(e) without limiting the generality of the foregoing, in the event that Company
is resident for tax purposes in the United States, any Lender that is not a Foreign
Lender and has not otherwise established to the reasonable satisfaction of Company
and Administrative Agent that it is an exempt recipient (as defined in
section 6049(b)(4) of the Internal Revenue Code and the United States Treasury
Regulations thereunder) shall deliver to Company and Administrative Agent (in such
number of copies as shall be requested by the recipient) on or prior to the date on
which such Lender becomes a Lender under this Agreement (and from time to time
thereafter as prescribed by applicable law or upon the request of Company or
Administrative Agent), duly executed and properly completed copies of Internal
Revenue Service Form W-9; and
(f) without limiting the generality of the foregoing, each Lender hereby
agrees, from time to time after the initial delivery by such Lender of such forms,
whenever a lapse in time or change in circumstances renders such forms, certificates
or other evidence so delivered obsolete or inaccurate in any material respect, that
such Lender shall promptly (1) deliver to Administrative Agent and Company two
original copies of renewals, amendments or additional or successor forms, properly
completed and duly executed by such Lender, together with any other certificate or
statement of exemption required in order to confirm or establish that such Lender is
entitled to an exemption from or reduction of any Tax with respect to payments to
such Lender under the Loan Documents and, if applicable, that such Lender does not
act for its own account with respect to any portion of such payment, or (2) notify
Administrative Agent and Company of its inability to deliver any such forms,
certificates or other evidence.
C. Capital Adequacy Adjustment. If any Lender shall have determined that any Change in Law
regarding capital adequacy has or would have the effect of reducing the rate of return on the
capital of such Lender or any corporation controlling such Lender as a consequence of, or with
reference to, such Lender’s Loans or Commitments or participations therein or other obligations
hereunder with respect to the Loans to a level below that which such Lender or such controlling
corporation could have achieved but for such Change in Law (taking into consideration the policies
of such Lender or such controlling corporation with regard to capital adequacy), then from time to
time, within five Business Days after receipt by Company from such Lender of the statement referred
to in subsection 2.7A, Company shall pay to such Lender such additional amount or amounts as will
compensate such Lender or such controlling corporation on an after-tax basis for such reduction.
Company shall not be required to compensate a Lender pursuant to this subsection 2.6C for any
reduction in respect of a period occurring more than nine months prior to the date on which such
Lender notifies Company of such Change in Law and such Lender’s intention to claim compensation
therefor, except, if the Change in Law giving rise to such reduction is retroactive, no such time
limitation shall apply so long as such Lender requests compensation within nine months from the
date on which the applicable Government Authority informed such Lender of such Change in Law.
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2.7 Statement of Lenders; Obligation of Lenders to Mitigate.
A. Statements. Each Lender claiming compensation or reimbursement pursuant to subsection 2.6
or 2.7B shall deliver to Company (with a copy to Administrative Agent) a written statement, setting
forth in reasonable detail the basis of the calculation of such compensation or reimbursement,
which statement shall be conclusive and binding upon all parties hereto absent manifest error.
B. Mitigation. Each Lender agrees that, as promptly as practicable after the officer of such
Lender responsible for administering the Loans of such Lender becomes aware of the occurrence of an
event or the existence of a condition that would entitle such Lender to receive payments under
subsection 2.6, it will use reasonable efforts to make, issue, fund or maintain the Commitments of
such Lender or the Loans of such Lender through another lending office of such Lender, if (i) as a
result thereof the additional amounts which would otherwise be required to be paid to such Lender
pursuant to subsection 2.6 would be materially reduced and (ii) as determined by such Lender in its
reasonable discretion, such action would not otherwise be disadvantageous to such Lender;
provided that such Lender will not be obligated to utilize such other lending office
pursuant to this subsection 2.7B unless Company agrees to pay all incremental expenses incurred by
such Lender as a result of utilizing such other lending office as described above.
2.8 Replacement of a Lender.
If Company receives a statement of amounts due pursuant to subsection 2.7A from a Lender or a
Lender (a “Non-Consenting Lender”) refuses to consent to an amendment, modification or waiver of
this Agreement that, pursuant to subsection 9.6, requires consent of 100% of the Lenders or 100% of
the Lenders with Obligations directly affected to which Requisite Lenders have consented, so long
as (i) no Potential Event of Default or Event of Default shall have occurred and be continuing and
Company has obtained a commitment from another Lender or an Eligible Assignee to purchase at par
the Non-Consenting Lender’s Loans and assume the Non-Consenting Lender’s Commitments and all other
obligations of the Non-Consenting Lender hereunder and (ii), if applicable, the Non-Consenting
Lender is unwilling to withdraw the notice delivered to Company pursuant to subsection 2.7 and/or
is unwilling to remedy its default upon 10 days prior written notice to the Non-Consenting Lender
and Administrative Agent, Company may require the Non-Consenting Lender to assign all of its Loans
and Commitments to such other Lender, Lenders, Eligible Assignee or Eligible Assignees pursuant to
the provisions of subsection 9.1B; provided that, prior to or concurrently with such
replacement, (1) the Non-Consenting Lender shall have received payment in full of all principal,
interest, fees and other amounts (including all amounts under subsections 2.6 and/or 2.7B (if
applicable)) through such date of replacement and a release from its obligations under the Loan
Documents, (2) the processing fee required to be paid by subsection 9.1B(i) shall have been paid to
Administrative Agent, (3) all of the requirements for such assignment contained in subsection 9.1B,
including, without limitation, the consent of Administrative Agent (if required) and the receipt by
Administrative Agent of an executed Assignment Agreement executed by the assignee (Administrative
Agent being hereby authorized to execute any Assignment Agreement on behalf of a Non-Consenting
Lender relating to the assignment of Loans and/or Commitments
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of such subject Lender) and other supporting documents, have been fulfilled, and (4) each
assignee shall consent, at the time of such assignment, to each matter in respect of which such
Non-Consenting Lender was a Non-Consenting Lender and Company also requires each other
Non-Consenting Lender that is a Non-Consenting Lender to assign its Loans and Commitments.
Section 3. CONDITIONS
The obligations of Lenders to make Loans hereunder are subject to the prior or concurrent
satisfaction of the following conditions:
3.1 Conditions to the Execution Date.
The obligations of Lenders to enter into this Agreement on the Execution Date are subject to
satisfaction of the following conditions:
A. Company Documents. On or before the Execution Date, Company shall deliver to Lenders (or
to Administrative Agent with sufficient originally executed copies, where appropriate, for each
Lender) the following with respect to Company, each, unless otherwise noted, dated the Execution
Date:
(i) Copies of the Organizational Documents of Company, certified by the Secretary of
State of its jurisdiction of organization or, if such document is of a type that may not be
so certified, certified by the secretary or similar officer of Company, together with a good
standing certificate from the Secretary of State of its jurisdiction of organization and
each other state in which Company is qualified to do business and, to the extent generally
available, a certificate or other evidence of good standing as to payment of any applicable
franchise or similar taxes from the appropriate taxing authority of each of such
jurisdictions, each dated a recent date prior to the Execution Date;
(ii) Resolutions of the Governing Body of Company approving and authorizing the
execution, delivery and performance of the Loan Documents, certified as of the Execution
Date by the secretary or similar officer of Company as being in full force and effect
without modification or amendment;
(iii) Signature and incumbency certificates of the officers of Company executing the
Loan Documents;
(iv) Executed originals of the Loan Documents; and
(v) Such other documents as Administrative Agent may reasonably request.
B. Corporate and Capital Structure; Ownership. The corporate organizational structure,
capital structure and ownership of Company and its Subsidiaries shall be as set forth on
Schedule 3.1 annexed hereto.
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C. Representations and Warranties; Performance of Agreements. Company shall have delivered to
Administrative Agent an Officer’s Certificate, in form and
substance reasonably satisfactory to Administrative Agent, to the effect that the
representations and warranties of Company and its Subsidiaries (other than Targets and their
Subsidiaries) in Section 4 (except for the representations and warranties set forth in subsection
4.18) are true, correct and complete on and as of the Execution Date to the same extent as though
made on and as of that date (or, to the extent such representations and warranties specifically
relate to an earlier date, that such representations and warranties were true, correct and complete
in all material respects on and as of such earlier date).
3.2 Conditions to the Funding Date.
The obligation of each Lender to make its Loans on the Funding Date are, in addition to the
conditions precedent specified in subsection 3.1, subject to the following further conditions
precedent:
A. Financial Statements; Pro Forma Financial Statements. On or before the Funding Date,
Lenders shall have received from Company (i) the audited statutory financial statements of each
Target and its Subsidiaries, including the related notes, where applicable, for the three-year
period ended December 31, 2006, (ii) the unaudited combined financial information of the Targets as
of December 31, 2006, and for the fiscal years of Targets ended December 31, 2004, December 31,
2005 and December 31, 2006, together with the accompanying draft report prepared by
PricewaterhouseCoopers, (iii) projected financial statements (including balance sheets and the
related statements of income and cash flows) of Company and its Subsidiaries (including Targets and
their Subsidiaries) for the three-year period after the Funding Date, and (iv) a pro
forma balance sheet of Company and its Subsidiaries (including Targets and their
Subsidiaries) as of the Funding Date after giving effect to the Acquisition and the financing
contemplated hereby. Upon receipt of the closing Audit Report (as such term is defined in the
Acquisition Agreement), Company will deliver a copy of such Closing Audit Report to Lenders.
B. Necessary Governmental Authorizations and Consents; Expiration of Waiting Periods, Etc.
Company shall have obtained all Governmental Authorizations and all consents of other Persons, in
each case that are necessary in connection with the Acquisition, the other transactions
contemplated by the Loan Documents and the Related Agreements and the continued operation of the
business conducted by Company and its Subsidiaries (including Targets) in substantially the same
manner as conducted prior to the Funding Date. Each such Governmental Authorization and consent
shall be in full force and effect, except in a case where the failure to obtain or maintain a
Governmental Authorization or consent, either individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect. All applicable waiting periods
shall have expired without any action being taken or threatened by any competent authority that
would restrain, prevent or otherwise impose adverse conditions on the transactions contemplated by
the Loan Documents or the financing thereof. No action, request for stay, petition for review or
rehearing, reconsideration, or appeal with respect to any of the foregoing shall be pending, and
the time for any applicable Government Authority to take action to set aside its consent on its own
motion shall have expired.
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C. Termination of Existing Indebtedness. On the Funding Date, Targets and their Subsidiaries
shall have repaid in full all Indebtedness (excluding accounts payable and other current
liabilities subject to the working capital adjustment provided for in Section 1.3 of the
Acquisition Agreement) due from any Target or its Subsidiary to any of Thales SA or its
consolidated Subsidiaries (other than any Target or any Subsidiary of any Target).
D. Consummation of Acquisition.
(i) There has not occurred since December 20, 2007 an Acquisition MAC;
(ii) all conditions to the Acquisition set forth in Article VII of the Acquisition
Agreement shall have been satisfied or the fulfillment of any such conditions shall have
been waived with the consent of Administrative Agent;
(iii) the Acquisition shall have become effective in accordance with the terms of the
Acquisition Agreement;
(iv) the aggregate cash consideration paid to the holders of Targets’ stock in respect
of such stock in connection with the Acquisition shall not exceed $120,000,000 (other than
any Contingent Payment (as such term is defined in the Acquisition Agreement));
(v) Transaction Costs shall not exceed $10,000,000, and Administrative Agent shall have
received evidence to its reasonable satisfaction to such effect; and
(vi) Administrative Agent shall have received an Officer’s Certificate of Company to
the effect set forth in clauses (i)-(v) above and stating that Company will proceed to
consummate the Acquisition immediately upon the making of the initial Loans.
E. Opinions of Counsel to Company. Lenders shall have received originally executed copies of
one or more favorable written opinions of DLA Piper, counsel for Company, in form and substance
reasonably satisfactory to Administrative Agent and its counsel, dated as of the Funding Date and
setting forth substantially the matters in the opinions designated in Exhibit III annexed
hereto and as to such other matters as Administrative Agent acting on behalf of Lenders may
reasonably request (this Agreement constituting a written request by Company to such counsel to
deliver such opinions to Lenders).
F. Solvency Assurances. On the Funding Date, Administrative Agent and Lenders shall have
received an Officer’s Certificate of Company dated the Funding Date, substantially in the form of
Exhibit V annexed hereto and with appropriate attachments, in each case demonstrating that,
after giving effect to the consummation of the transactions contemplated by the Loan Documents,
Company will be Solvent.
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G. Related Agreements.
(i) Approval of Certain Related Agreements. The Acquisition Agreement, the
Registration Rights Agreement and the Warrant shall each be in the form attached hereto as
Exhibits VI, VII and VIII, respectively.
(ii) Related Agreements in Full Force and Effect. Administrative Agent shall have
received a fully executed or conformed copy of each Related Agreement and any documents
executed in connection therewith, and (i) each Related Agreement shall be in full force and
effect and no provision thereof shall have been modified or waived in any respect determined
by Administrative Agent to be material, in each case without the consent of Administrative
Agent, and (ii) the Warrant shall have been duly issued.
H. Completion of Proceedings. All corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all documents incidental thereto not
previously found acceptable by Administrative Agent, acting on behalf of Lenders, and its counsel
shall be reasonably satisfactory in form and substance to Administrative Agent and such counsel,
and Administrative Agent and such counsel shall have received all such counterpart originals or
certified copies of such documents as Administrative Agent may reasonably request.
I. Notice of Borrowing. Administrative Agent shall have received before the Funding Date, in
accordance with the provisions of subsection 2.1B, a duly executed Notice of Borrowing signed by a
duly authorized Officer of Company.
J. As of the Funding Date:
(i) (a) The representations and warranties contained herein and in the other Loan
Documents shall be true, correct and complete in all material respects on and as of the
Funding Date to the same extent as though made on and as of that date (or, to the extent
such representations and warranties specifically relate to an earlier date, that such
representations and warranties were true, correct and complete in all material respects on
and as of such earlier date), (b) the Specified Representations (for purposes of this
subsection 3.2J, references in the Specified Representations to Company and its Subsidiaries
shall be deemed to include Targets and their Subsidiaries) shall be true, correct and
complete in all material respects on and as of the Funding Date to the same extent as though
made on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and warranties
were true, correct and complete in all material respects on and as of such earlier date, (c)
the representations of Targets in the Acquisition Agreement that are material to the
interests of the Lenders and solely to the extent to which Company has the right to
terminate its obligations under the Acquisition Agreement as a result of the breach thereof,
shall be true and correct as of the Funding Date, as though made on and as of the Funding
Date, and (d) Company shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or satisfied by it
on or before the Funding Date except as otherwise disclosed to and agreed to in writing by
Administrative Agent; provided that, with respect to clauses (a), (b) and (d) above,
if a representation and warranty, covenant or condition is
32
qualified as to materiality, the applicable materiality qualifier set forth above shall
be disregarded with respect to such representation and warranty, covenant or condition for
purposes of this condition;
(ii) No event shall have occurred and be continuing or would result from the
consummation of the borrowing contemplated by such Notice of Borrowing that would constitute
an Event of Default or a Potential Event of Default;
(iii) Company shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or satisfied by it
on or before that Funding Date; and
(iv) No order, judgment or decree of any arbitrator or Government Authority shall
purport to enjoin or restrain any Lender from making the Loans to be made by it hereunder;
(v) There shall not be pending or threatened any action, suit, investigation,
litigation or proceeding in any court or before any arbitrator or governmental
instrumentality that could reasonably be expected to have a Material Adverse Effect or an
Acquisition MAC; and
(vi) Company shall have delivered such other certificates or documents that
Administrative Agent shall reasonably request, in form and substance reasonably satisfactory
to Administrative Agent.
K. Fees and Expenses. All fees and reasonable, documented out-of-pocket expenses of
Administrative Agent payable as of the Funding Date in connection with this Agreement and the
transactions contemplated hereby shall have been paid by Company.
L. Intercreditor Agreement. On or before the Funding Date, Administrative Agent and Bank of
America, N.A. shall have agreed upon a definitive form of Intercreditor Agreement.
Section 4. COMPANY’S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Agreement and to make the Loans, Company
represents and warrants to each Lender:
4.1 Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries.
A. Organization and Powers. Company is a corporation duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization as specified in Schedule
4.1 annexed hereto. Company has all requisite power and authority to own and operate its
properties, to carry on its business as now conducted and as proposed to be conducted, to enter
into the Loan Documents and the Related Agreements and to carry out the transactions contemplated
thereby.
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B. Qualification and Good Standing. Company is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to carry out its business
and operations, except in jurisdictions where the failure to be so qualified or in good standing
has not had and could not reasonably be expected to result in a Material Adverse Effect.
C. Conduct of Business. Company and its Subsidiaries are engaged only in the businesses
permitted to be engaged in pursuant to subsection 6.9.
D. Subsidiaries. All of the Subsidiaries of Company as of the Execution Date and their
jurisdictions of organization are identified in Schedule 4.1 annexed hereto. The Capital
Stock of each of the Subsidiaries of Company identified in Schedule 4.1 annexed hereto is
duly authorized, validly issued, fully paid and nonassessable and none of such Capital Stock
constitutes Margin Stock. Each of the Subsidiaries of Company identified in Schedule 4.1
annexed hereto is a corporation, partnership, trust or limited liability company duly organized,
validly existing and in good standing under the laws of its respective jurisdiction of organization
set forth therein, has all requisite power and authority to own and operate its properties and to
carry on its business as now conducted and as proposed to be conducted, and is qualified to do
business and in good standing in every jurisdiction where its assets are located and wherever
necessary to carry out its business and operations, in each case except where failure to be so
qualified or in good standing or a lack of such power and authority has not had and could not
reasonably be expected to result in a Material Adverse Effect. Schedule 4.1 annexed hereto
correctly sets forth, as of the Execution Date, the ownership interest of Company and each of its
Subsidiaries in each of the Subsidiaries of Company identified therein.
4.2 Authorization of Borrowing, etc.
A. Authorization of Borrowing. The execution, delivery and performance of the Loan Documents
and the Related Agreements have been duly authorized by all necessary corporate action on the part
of Company.
B. No Conflict. The execution, delivery and performance by Company of the Loan Documents and
the Related Agreements and the consummation of the transactions contemplated by the Loan Documents
and the Related Agreements do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its Subsidiaries in any material
respect or the Organizational Documents of Company or any of its Subsidiaries or any order,
judgment or decree of any court or other Government Authority binding on Company or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of its Subsidiaries in
any manner that would be likely to result in a Material Adverse Effect, (iii) result in or require
the creation or imposition of any Lien upon any of the properties or assets of Company or any of
its Subsidiaries, or (iv) require any approval of stockholders or any approval or consent of any
Person under any Contractual Obligation of Company or any of its Subsidiaries, except for such
approvals or consents which will be obtained on or before the Funding Date and identified in the
Acquisition Agreement.
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C. Governmental Consents. The execution, delivery and performance by Company of the Loan
Documents and the Related Agreements and the consummation of the transactions contemplated by the
Loan Documents and the Related Agreements do not and will not require any Governmental
Authorization other than those identified in the Acquisition Agreement.
D. Binding Obligation. Each of the Loan Documents and the Related Agreements has been duly
executed and delivered by Company and is the legally valid and binding obligation of Company,
enforceable against Company in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting
creditors’ rights generally or by equitable principles relating to enforceability.
4.3 Financial Condition.
Company has heretofore delivered to Lenders, at Lenders’ request, the financial statements and
information for the period ended September 30, 2007. All such statements were prepared in
conformity with GAAP and fairly present, in all material respects, the financial position (on a
consolidated basis) of the entities described in such financial statements as at the respective
dates thereof and the results of operations and cash flows (on a consolidated basis) of the
entities described therein for each of the periods then ended, subject, in the case of any such
unaudited financial statements, to the absence of footnotes and changes resulting from audit and
normal year-end adjustments. Neither Company nor any of its Subsidiaries has (and will not have
following the funding of the initial Loans) any Contingent Obligation, contingent liability or
liability for taxes, long-term lease or unusual forward or long-term commitment that, as of the
Execution Date, is not reflected in the foregoing financial statements or the notes thereto (other
than (a) those liabilities reflected on the Schedules to this Agreement and (b) Contingent
Obligations that are permitted to be incurred under subsection 6.4) or that is material in relation
to the business, operations, properties, assets, condition (financial or otherwise) of Company or
any of its Subsidiaries taken as a whole.
4.4 No Material Adverse Change; No Restricted Junior Payments.
Since December 20, 2007, no event or change has occurred that has resulted in or evidences,
either in any case or in the aggregate, a Material Adverse Effect. Neither Company nor any of its
Subsidiaries has directly or indirectly declared, ordered, paid or made, or set apart any sum or
property for, any Restricted Junior Payment or agreed to do so except as permitted by
subsection 6.5.
4.5 Title to Properties; Liens; Real Property; Intellectual Property.
A. Title to Properties; Liens. Company and its Subsidiaries have (i) good, sufficient and
legal title to (in the case of fee interests in real property), (ii) valid leasehold interests in
(in the case of leasehold interests in real or personal property), or (iii) good title to (in the
case of all other personal property), all of their respective properties and assets reflected in
the financial statements referred to in subsection 4.3 or in the most recent financial statements
35
delivered pursuant to subsection 5.1, in each case except for assets disposed of since the
date of such financial statements in the ordinary course of business. Except as permitted by this
Agreement, all such properties and assets are free and clear of Liens.
B. Intellectual Property. As of the Execution Date, Company and its Subsidiaries own or have
the right to use, all Intellectual Property used in the conduct of their business, except where the
failure to own or have such right to use in the aggregate could not reasonably be expected to
result in a Material Adverse Effect. Except as disclosed on Schedule 4.5B, no claim has
been asserted and is pending by any Person challenging or questioning the use of any such
Intellectual Property or the validity or effectiveness of any such Intellectual Property, nor does
Company know of any valid basis for any such claim, except for such claims that in the aggregate
could not reasonably be expected to result in a Material Adverse Effect. The use of such
Intellectual Property by Company and its Subsidiaries does not infringe on the rights of any
Person, except for such claims and infringements that, in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. All federal, state and material foreign
registrations of and applications for Intellectual Property, and all material unregistered
Intellectual Property, that are owned or licensed by Company or any of its Subsidiaries on the
Execution Date are described on Schedule 4.5 annexed hereto.
4.6 Litigation; Adverse Facts.
Except as disclosed on Schedule 4.6, there are no Proceedings (whether or not
purportedly on behalf of Company or any of its Subsidiaries) at law or in equity, or before or by
any court or other Government Authority (including any Environmental Claims) that are pending or,
to the knowledge of Company, threatened against Company or any of its Subsidiaries or any property
of Company or any of its Subsidiaries and that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither Company nor any of its Subsidiaries
(i) is in violation of any applicable laws (including Environmental Laws) that, individually or in
the aggregate, could reasonably be expected to result in a Material Adverse Effect, or (ii) is
subject to or in default with respect to any final judgments, writs, injunctions, decrees, rules or
regulations of any court or other Government Authority that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect.
4.7 Payment of Taxes.
Except to the extent permitted by subsection 5.3, all tax returns and reports of Company and
its Subsidiaries required to be filed by any of them have been timely filed, and all taxes shown on
such tax returns to be due and payable and all assessments, fees and other governmental charges
upon Company and its Subsidiaries and upon their respective properties, assets, income, businesses
and franchises that are due and payable have been paid when due and payable or provision therefor
has been made, except for such taxes that are being actively contested by Company or such
Subsidiary in good faith and by appropriate proceedings; provided that such reserves or
other appropriate provisions, if any, as shall be required in conformity with GAAP shall have been
made or provided therefor.
36
4.8 Performance of Agreements.
Neither Company nor any of its Subsidiaries is in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in any of its Contractual
Obligations, and no condition exists that, with the giving of notice or the lapse of time or both,
would constitute such a default, except where the consequences, direct or indirect, of such default
or defaults, if any, could not reasonably be expected to result in a Material Adverse Effect.
4.9 Governmental Regulation.
Neither Company nor any of its Subsidiaries is subject to regulation under the Investment
Company Act of 1940 or under any other federal or state statute or regulation which may limit its
ability to incur Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
4.10 Securities Activities.
A. Neither Company nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of purchasing or carrying
any Margin Stock.
B. Following application of the proceeds of each Loan, not more than 25% of the value of the
assets (either of Company only or of Company and its Subsidiaries on a consolidated basis) subject
to the provisions of subsection 6.2 or 6.6 or subject to any restriction contained in any agreement
or instrument, between Company and any Lender or any Affiliate of any Lender, relating to
Indebtedness and within the scope of subsection 7.2, will be Margin Stock.
4.11 Employee Benefit Plans.
A. Company, each of its Subsidiaries and each of their respective ERISA Affiliates are in
compliance in all material respects with all applicable provisions and requirements of ERISA and
the regulations and published interpretations thereunder with respect to each Employee Benefit
Plan, and have performed all their obligations under each Employee Benefit Plan in all material
respects. Each Employee Benefit Plan that is intended to qualify under Section 401(a) of the
Internal Revenue Code has received a favorable opinion, advisory or determination letter from the
Internal Revenue Service.
B. No ERISA Event has occurred or is reasonably expected to occur.
C. Except to the extent required under Section 4980B of the Internal Revenue Code or other
applicable law, no Employee Benefit Plan provides health or welfare benefits (through the purchase
of insurance or otherwise) for any retired or former employee of Company, any of its Subsidiaries
or any of their respective ERISA Affiliates.
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D. As of the most recent valuation date for any Pension Plan, the amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA), individually or in the aggregate for all
Pension Plans (excluding for purposes of such computation any Pension Plans with respect to which
assets exceed benefit liabilities), does not exceed $500,000.
E. As of the most recent valuation date for each Multiemployer Plan for which the actuarial
report is available, the potential liability of Company, its Subsidiaries and their respective
ERISA Affiliates for a complete withdrawal from such Multiemployer Plan (within the meaning of
Section 4203 of ERISA), when aggregated with such potential liability for a complete withdrawal
from all Multiemployer Plans, based on information available pursuant to Section 4221(e) of ERISA,
does not exceed $500,000.
F. As of the date hereof, Company and its Subsidiaries have made full payment when due of all
required contributions to any Foreign Plan.
4.12 Certain Fees.
No broker’s or finder’s fee or commission will be payable with respect to this Agreement or
any of the transactions contemplated hereby, and Company hereby indemnifies Lenders against, and
agrees that it will hold Lenders harmless from, any claim, demand or liability for any such
broker’s or finder’s fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel) arising in connection
with any such claim, demand or liability.
4.13 Environmental Protection.
(i) Neither Company nor any of its Subsidiaries nor any of their respective Facilities
or operations are subject to any outstanding written order, consent decree or settlement
agreement with any Person relating to (a) any Environmental Law, (b) any Environmental
Claim, or (c) any Hazardous Materials Activity that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect;
(ii) neither Company nor any of its Subsidiaries has received any letter or request for
information under Section 104 of the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. § 9604) or any comparable state law which remain pending or
unresolved;
(iii) there are and, to Company’s knowledge, have been no conditions, occurrences, or
Hazardous Materials Activities that could reasonably be expected to form the basis of an
Environmental Claim against Company or any of its Subsidiaries that, individually or in the
aggregate, could reasonably be expected to result in a Material Adverse Effect;
(iv) neither Company nor any of its Subsidiaries nor, to Company’s knowledge, any
predecessor of Company or any of its Subsidiaries has filed any notice under any
Environmental Law indicating past or present treatment of Hazardous
38
Materials at any Facility, and none of Company’s or any of its Subsidiaries’ operations
involves the generation, transportation, treatment, storage or disposal of hazardous waste,
as defined under 40 C.F.R. Parts 260-270 or any state equivalent, except in compliance with
Environmental Laws; and
(v) compliance with all current or reasonably foreseeable future requirements pursuant
to or under Environmental Laws would not, individually or in the aggregate, be reasonably
expected to result in a Material Adverse Effect.
4.14 Employee Matters.
There is no strike or work stoppage in existence or to Company’s knowledge, threatened,
involving Company or any of its Subsidiaries that could reasonably be expected to result in a
Material Adverse Effect.
4.15 Solvency.
Company is and, upon the incurrence of any Obligations by Company on any date on which this
representation is made, will be, Solvent.
4.16 Disclosure.
No representation or warranty of Company or any of its Subsidiaries contained in any Loan
Document, any Related Agreement or in any other document, certificate or written statement
(excluding the projections, models, pro forma financial information and forward-looking statements
contained therein and the estimates contained in such projections, models, pro forma financial
information and forward-looking statements) furnished to Lenders by or on behalf of Company or any
of its Subsidiaries for use in connection with the transactions contemplated by this Agreement
contains any untrue statement of a material fact or omits to state a material fact (known to
Company, in the case of any document not furnished by it) necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances in which the same were
made. Any projections, models, pro forma financial information and forward-looking statements
contained in such materials are based upon good faith estimates and assumptions believed by Company
to be reasonable at the time made, it being recognized by Lenders that such projections as to
future events are not to be viewed as facts and that actual results during the period or periods
covered by any such projections may differ from the projected results. There are no facts known to
Company (other than matters of a general economic nature) that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect and that have not been
disclosed herein or in such other documents, certificates and statements furnished to Lenders for
use in connection with the transactions contemplated hereby.
4.17 Subordinated Indebtedness.
The Obligations constitute senior indebtedness of Company.
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4.18 Related Agreements.
A. Delivery of Related Agreements. On or prior to the Funding Date, Company has delivered to
Lenders complete and correct copies of each Related Agreement and of all exhibits and schedules
thereto.
B. Acquisition Agreement Representations. On the Funding Date, the representations in the
Acquisition Agreement that are material to the interests of the Lenders and solely to the extent
that Company has the right to terminate its obligations as a result of the breach thereof, are true
and correct as of the date of the Acquisition Agreement and as of the Funding Date, as though made
on and as of the Funding Date, except where the failure of such representations or warranties to be
true and correct (without giving effect to any limitation as to “Material Adverse Effect”, “in all
material respects”, “in any material respect”, “material” or “materially” set forth in such
representations and warranties) does not have and would not reasonably be expected to have an
Acquisition MAC.
C. Survival. Notwithstanding anything in the Acquisition Agreement to the contrary, the
representations and warranties of Company set forth in subsection 4.18B shall, solely for purposes
of this Agreement, survive the Funding Date for the benefit of Lenders.
Section 5. COMPANY’S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments hereunder shall remain in
effect and until payment in full of all of the Loans and other Obligations (other than Unasserted
Obligations), unless Requisite Lenders shall otherwise give prior written consent, Company shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 5.
5.1 Financial Statements and Other Reports.
Company will maintain, and cause each of its Subsidiaries to maintain, a system of accounting
established and administered in accordance with sound business practices to permit preparation of
financial statements in conformity with GAAP. Company will deliver to Administrative Agent and
Lenders:
(i) Events of Default, etc.: promptly upon any officer of Company obtaining
knowledge (a) of any condition or event that constitutes an Event of Default or Potential
Event of Default, or becoming aware that any Lender has given any notice (other than to
Administrative Agent) or taken any other action with respect to a claimed Event of Default
or Potential Event of Default, (b) that any Person has given any notice to Company or any of
its Subsidiaries or taken any other action with respect to a claimed default or event or
condition of the type referred to in subsection 7.2, or (c) of the occurrence of any event
or change that has caused, either in any case or in the aggregate, a Material Adverse
Effect, an Officer’s Certificate specifying the nature and period of existence of such
condition, event or change, or specifying the notice given or action taken by any such
Person and the nature of such claimed Event of Default, Potential
40
Event of Default, default, event or condition, and what action Company has taken, is
taking and proposes to take with respect thereto;
(ii) Quarterly Financials: as soon as available and in any event within 45
days after the end of each of the first three Fiscal Quarters of each Fiscal Year, (a) the
consolidated balance sheet of Company and its Subsidiaries as at the end of such Fiscal
Quarter and the related consolidated statements of income, stockholders’ equity and cash
flows of Company and its Subsidiaries for such Fiscal Quarter and for the period from the
beginning of the then current Fiscal Year to the end of such Fiscal Quarter, setting forth
in each case in comparative form the corresponding figures for the corresponding periods of
the previous Fiscal Year, all in reasonable detail and certified by the chief financial
officer of Company that they fairly present, in all material respects, the financial
condition of Company and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, subject to the absence of
footnotes and changes resulting from audit and normal year-end adjustments, and (b) a
narrative report describing the operations of Company and its Subsidiaries in the form
prepared for presentation to senior management for such Fiscal Quarter and for the period
from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter;
provided however that so long as Company timely files a quarterly report on Form 10-Q with
the Securities and Exchange Commission for any Fiscal Quarter containing consolidated
financial statements for Company and its Subsidiaries, Company shall be required to deliver
a copy of such quarterly report in lieu of the financial statements and narrative described
in this subsection 5.1(ii);
(iii) Year-End Financials: as soon as available and in any event within 90
days after the end of each Fiscal Year, (a) the consolidated balance sheet of Company and
its Subsidiaries as at the end of such Fiscal Year and the related consolidated statements
of income, stockholders’ equity and cash flows of Company and its Subsidiaries for such
Fiscal Year, setting forth in each case in comparative form the corresponding figures for
the previous Fiscal Year, all in reasonable detail and certified by the chief financial
officer of Company that they fairly present, in all material respects, the financial
condition of Company and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated, (b) a narrative report describing
the operations of Company and its Subsidiaries in the form prepared for presentation to
senior management for such Fiscal Year, and (c) in the case of such consolidated financial
statements, a report thereon of Ernst & Young LLP or other independent certified public
accountants of recognized national standing selected by Company and reasonably satisfactory
to Administrative Agent, which report shall be unqualified, shall express no doubts,
assumptions or qualifications concerning the ability of Company and its Subsidiaries to
continue as a going concern, and shall state that such consolidated financial statements
fairly present, in all material respects, the consolidated financial position of Company and
its Subsidiaries as at the dates indicated and the results of their operations and their
cash flows for the periods indicated in conformity with GAAP applied on a basis consistent
with prior years (except as otherwise disclosed in such financial statements) and that the
examination by such accountants in connection with
41
such consolidated financial statements has been made in accordance with generally
accepted auditing standards; provided however, that so long as Company timely files an
annual report on Form 10-K with the Securities and Exchange Commission containing
consolidated financial statements for Company and its Subsidiaries, Company shall be
required to deliver a copy of such annual report in lieu of the financial statements and
narrative described in this subsection 5.1(iii);
(iv) Officer’s Certificate: together with each delivery of financial
statements pursuant to subdivisions (ii) and (iii) above, an Officer’s Certificate of
Company stating that the signers have reviewed the terms of this Agreement and have made, or
caused to be made under their supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting period covered by such
financial statements and that such review has not disclosed the existence during or at the
end of such accounting period, and that the signers do not have knowledge of the existence
as at the date of such Officer’s Certificate, of any condition or event that constitutes an
Event of Default or Potential Event of Default, or, if any such condition or event existed
or exists, specifying the nature and period of existence thereof and what action Company has
taken, is taking and proposes to take with respect thereto;
(v) Accountants’ Reports: promptly upon receipt thereof (unless restricted by
applicable professional standards), copies of all reports submitted to Company by
independent certified public accountants in connection with each annual, interim or special
audit of the financial statements of Company and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to management in connection with
their annual audit;
(vi) SEC Filings and Press Releases: promptly upon their becoming available
and to the extent not available on XXXXX or Company’s website, copies of (a) all financial
statements, reports, notices and proxy statements sent or made available generally by
Company to its security holders or by any Subsidiary of Company to its security holders
other than Company or another Subsidiary of Company, (b) all regular and periodic reports
and all registration statements (other than on Form S-8 or a similar form) and prospectuses,
if any, filed by Company or any of its Subsidiaries with any securities exchange or with the
Securities and Exchange Commission or any governmental or private regulatory authority, and
(c) all press releases and other statements made available generally by Company or any of
its Subsidiaries to the public concerning material developments in the business of Company
or any of its Subsidiaries;
42
(vii) Litigation or Other Proceedings: promptly upon any Officer of Company
obtaining knowledge of (a) the institution of, or material threat in writing of, any
Proceeding against or affecting Company or any of its Subsidiaries or any property of
Company or any of its Subsidiaries not previously disclosed in writing by Company to Lenders
or (b) any material development in any Proceeding that, in any case:
(x) if adversely determined, has a reasonable possibility after giving
effect to the coverage and policy limits of insurance policies issued
to Company and its Subsidiaries of giving rise to a Material Adverse
Effect; or
(y) seeks to enjoin or otherwise prevent the consummation of, or to
recover any damages or obtain relief as a result of, the transactions
contemplated hereby;
written notice thereof together with such other information as may be reasonably available
to Company to enable Lenders and their counsel to evaluate such matters;
(viii) ERISA Events: promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event, a written notice specifying the nature thereof,
what action Company, any of its Subsidiaries or any of their respective ERISA Affiliates has
taken, is taking or proposes to take with respect thereto and, when known, any action taken
or threatened in writing by the Internal Revenue Service, the Department of Labor or the
PBGC with respect thereto;
(ix) ERISA Notices: with reasonable promptness, copies of (a) all notices
received by Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from a Multiemployer Plan sponsor concerning an ERISA Event; and (b) copies of such other
documents or governmental reports or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(x) Financial Plans: as soon as practicable and in any event no later than 45
days after the beginning of each Fiscal Year, a consolidated plan and financial forecast for
such Fiscal Year in form reasonably acceptable to Administrative Agent (the “Financial Plan”
for such Fiscal Year), including (a) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of Company and its Subsidiaries for such
Fiscal Year, (b) forecasted consolidated statements of income and cash flows of Company and
its Subsidiaries for each month of each such Fiscal Year, and (c) such other information and
projections as any Lender may reasonably request;
(xi) Notices from Holders of Indebtedness: promptly, upon receipt, copies of
all notices from holders of material Indebtedness or a trustee, agent or other
representative of such a holder; and
(xii) Other Information: with reasonable promptness, such other information
and data with respect to Company or any of its Subsidiaries as from time to time may be
reasonably requested by any Lender.
5.2 Existence, etc.
Except as permitted under subsection 6.6, Company will, and will cause each of its
Subsidiaries to, at all times preserve and keep in full force and effect its existence in the
jurisdiction of organization specified on Schedule 4.1 and all rights and franchises
material to its business; provided, however that neither Company nor any of its
Subsidiaries shall be required to
43
preserve the existence of any such Subsidiary or any such right or franchise if the Governing
Body of Company or such Subsidiary shall determine that the preservation thereof is no longer
desirable in the conduct of the business of Company or such Subsidiary, as the case may be, and
that the loss thereof could not reasonably be expected to have a Material Adverse Effect.
5.3 Payment of Taxes and Claims; Tax.
A. Company will, and will cause each of its Subsidiaries to, pay all federal, state and
material local taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or franchises before any
penalty accrues thereon, and all claims (including claims for labor, services, materials and
supplies) for sums that have become due and payable and that by law have or may become a Lien upon
any of its properties or assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided that no such tax, assessment, charge or claim need be paid if it
is being contested in good faith by appropriate proceedings promptly instituted and diligently
conducted, so long as such reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor.
B. Company will not, nor will it permit any of its Subsidiaries to, file or consent to the
filing of any consolidated income tax return with any Person (other than Company or any of its
Subsidiaries), except as required by law.
5.4 Maintenance of Properties; Insurance.
A. Maintenance of Properties. Company will, and will cause each of its Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition, ordinary wear and
tear excepted, all material properties used or useful in the business of Company and its
Subsidiaries (including all Intellectual Property) and from time to time will make or cause to be
made all appropriate repairs, renewals and replacements thereof except to the extent that failure
to perform such obligations would not reasonably be expected to have a Material Adverse Effect.
B. Insurance. Company will maintain or cause to be maintained, with financially sound and
reputable insurers, such public liability insurance, third party property damage insurance,
business interruption insurance and casualty insurance with respect to liabilities, losses or
damage in respect of the assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations of established
reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and
conditions as shall be customary for corporations similarly situated in the industry.
5.5 Inspection Rights; Lender Meeting.
A. Inspection Rights. Company shall, and shall cause each of its Subsidiaries to, permit any
authorized representatives designated by any Lender to visit and
44
inspect any of the properties of Company or of any of its Subsidiaries, to inspect, copy and
take extracts from its and their financial and accounting records, and to discuss its and their
affairs, finances and accounts with its and their officers and independent public accountants
(provided that Company may, if it so chooses, be present at or participate in any such discussion),
all upon reasonable notice and at such reasonable times during normal business hours (i) so long as
no Event of Default has occurred and is continuing, not more than one time per Fiscal Year and as
would not interfere with the normal operation of Company in the ordinary course and (ii) following
the occurrence and during the continuation of an Event of Default, as often as may reasonably be
requested or at any time or from time to time.
B. Lender Meeting. Company will, upon the request of Administrative Agent or Requisite
Lenders, participate in a meeting of Administrative Agent and Lenders once during each Fiscal Year
to be held at Company’s principal offices (or at such other location as may be agreed to by Company
and Administrative Agent) at such time as may be agreed to by Company and Administrative Agent.
5.6 Compliance with Laws, etc.
Company shall comply, and shall cause each of its Subsidiaries to comply, with the
requirements of all applicable laws, rules, regulations and orders of any Government Authority
(including all Environmental Laws), noncompliance with which could reasonably be expected to result
in, individually or in the aggregate, a Material Adverse Effect.
5.7 Environmental Matters.
A. Environmental Disclosure. Company will deliver to Administrative Agent and Lenders:
(i) Environmental Audits and Reports. As soon as practicable following receipt
thereof, copies of all environmental audits, investigations, analyses and reports of any
kind or character, whether prepared by personnel of Company or any of its Subsidiaries or by
independent consultants, Government Authorities or any other Persons, with respect to
significant environmental matters at any Facility that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect or with respect to any
Environmental Claims that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect.
(ii) Notice of Certain Releases, Remedial Actions, etc. Promptly upon the
occurrence thereof, written notice describing in reasonable detail (a) any Release required
to be reported to any Government Authority under any applicable Environmental Laws, (b) any
remedial action taken by Company or any other Person in response to (1) any Hazardous
Materials Activities the existence of which could reasonably be expected to result in one or
more Environmental Claims having, individually or in the aggregate, a Material Adverse
Effect, or (2) any Environmental Claims that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect, and (c) Company’s discovery
of any occurrence or condition on any real property adjoining
45
or in the vicinity of any Facility that could cause such Facility or any part thereof
to be subject to any material restrictions on the ownership, occupancy, transferability or
use thereof under any Environmental Laws.
(iii) Written Communications Regarding Environmental Claims, Releases, etc. As
soon as practicable following the sending or receipt thereof by Company or any of its
Subsidiaries, a copy of any and all written communications with respect to (a) any
Environmental Claims that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect, (b) any Release required to be reported to any
Government Authority, and (c) any request for information from any Government Authority that
states such Government Authority is investigating whether Company or any of its Subsidiaries
may be potentially responsible for any Hazardous Materials Activity.
(iv) Notice of Certain Proposed Actions Having Environmental Impact. Prompt
written notice describing in reasonable detail (a) any proposed acquisition of stock,
assets, or property by Company or any of its Subsidiaries that could reasonably be expected
to (1) expose Company or any of its Subsidiaries to, or result in, Environmental Claims that
could reasonably be expected to result in, individually or in the aggregate, a Material
Adverse Effect or (2) affect the ability of Company or any of its Subsidiaries to maintain
in full force and effect all material Governmental Authorizations required under any
Environmental Laws for their respective operations and (b) any proposed action to be taken
by Company or any of its Subsidiaries to modify current operations in a manner that could
reasonably be expected to subject Company or any of its Subsidiaries to any additional
obligations or requirements under any Environmental Laws that could reasonably be expected
to result in, individually or in the aggregate, a Material Adverse Effect.
B. Company’s Actions Regarding Hazardous Materials Activities, Environmental Claims and
Violations of Environmental Laws.
(i) Remedial Actions Relating to Hazardous Materials Activities. Company
shall, in compliance with all applicable Environmental Laws, promptly undertake, and shall
cause each of its Subsidiaries promptly to undertake, any and all investigations, studies,
sampling, testing, abatement, cleanup, removal, remediation or other response actions
necessary to remove, remediate, clean up or xxxxx any Hazardous Materials Activity on, under
or about any Facility that is in violation of any Environmental Laws or that presents a
material risk of giving rise to an Environmental Claim.
(ii) Actions with Respect to Environmental Claims and Violations of Environmental
Laws. Company shall promptly take, and shall cause each of its Subsidiaries promptly to
take, any and all actions necessary to (i) cure any violation of applicable Environmental
Laws by Company or its Subsidiaries that could reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect and (ii) make an appropriate
response to any Environmental Claim against Company or any of its Subsidiaries and discharge
any obligations it may have to any Person thereunder
46
where failure to do so could reasonably be expected to result in, individually or in
the aggregate, a Material Adverse Effect.
Section 6. COMPANY’S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments hereunder shall remain in
effect and until payment in full of all of the Loans and other Obligations (other than Unasserted
Obligations), unless Requisite Lenders shall otherwise give prior written consent, Company shall
perform, and shall cause each of its Subsidiaries to perform, all covenants in this Section 6.
6.1 Indebtedness.
Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly,
create, incur, assume or guaranty, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness, except:
(i) Company may become and remain liable with respect to the Obligations;
(ii) Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations permitted by subsection 6.4 and, upon any matured obligations
actually arising pursuant thereto, the Indebtedness corresponding to the Contingent
Obligations so extinguished;
(iii) Company and its Subsidiaries may become and remain liable with respect to
Indebtedness in respect of Capital Leases aggregating, together with any Indebtedness
secured by Liens permitted pursuant to subsections 6.2A(ii) and (iii), not in excess of
$15,000,000 at any time outstanding;
(iv) Company may become and remain liable with respect to Indebtedness to any
Subsidiary, and any wholly-owned Subsidiary of Company may become and remain liable with
respect to Indebtedness to any other Subsidiary of Company;
(v) Wholly-owned Subsidiaries of Company may become and remain liable with respect to
Indebtedness to Company not in excess of $20,000,000 at any time outstanding to the extent
necessary to obtain favorable tax treatment;
(vi) Company and its Subsidiaries, as applicable, may remain liable with respect to
Indebtedness described in Schedule 6.1 annexed hereto;
(vii) Company and its Subsidiaries may become and remain liable with respect to
Indebtedness pursuant to Secured Working Capital Debt;
(viii) Company or a Subsidiary of Company may become and remain liable with respect to
Indebtedness of any Person assumed in connection with a Permitted Acquisition and a Person
that becomes a direct or indirect Subsidiary of Company as a result of a Permitted
Acquisition may remain liable with respect to Indebtedness existing
47
on the date of such acquisition; provided that such Indebtedness is not created
in anticipation of such acquisition;
(ix) Company may become and remain liable with respect to Subordinated Indebtedness;
provided that, such the subordination terms of such Subordinated Indebtedness are
reasonably satisfactory to Administrative Agent in form and substance and the maturity date
of such Subordinated Indebtedness is at least one year later than the Maturity Date;
(x) Company and its Subsidiaries may become and remain liable with respect to
Indebtedness incurred in the ordinary course of business in connection with operating,
collections, payroll, trust, or other depository or disbursement accounts, including
automated clearinghouse, controlled disbursement, e-payable, electronic funds transfer, wire
transfer, controlled disbursement, overdraft, depository, information reporting, lockbox,
and stop payment, overdraft and/or wire transfer services; and
(xi) Company and its Subsidiaries may become and remain liable with respect to other
Indebtedness in an aggregate principal amount not to exceed $4,000,000 at any time
outstanding.
6.2 Liens and Related Matters.
A. Prohibition on Liens. Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or permit to exist any Lien on or with respect to any
property or asset of any kind (including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or hereafter acquired, or any
income or profits therefrom, or file or permit the filing of, or permit to remain in effect, any
financing statement or other similar notice of any Lien with respect to any such property, asset,
income or profits under the UCC or under any similar recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens on any asset existing at the time of acquisition of such asset by Company or
a Subsidiary, or Liens to secure the payment of all or any part of the purchase price of an
asset upon the acquisition of such asset by Company or a Subsidiary or to secure any
Indebtedness permitted hereby incurred by Company or a Subsidiary at the time of or within
ninety days after the acquisition of such asset, which Indebtedness is incurred for the
purpose of financing all or any part of the purchase price thereof; provided,
however, that the Lien shall apply only to the asset so acquired and proceeds
thereof; and provided further, that all such Liens do not secure
Indebtedness aggregating, together with any Indebtedness secured by Liens permitted pursuant
to subsection 6.2A(iii) and any Indebtedness permitted pursuant to subsection 6.1(iii), in
excess of $15,000,000 at any time outstanding;
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(iii) Liens assumed in connection with a Permitted Acquisition and Liens on assets of a
Person that becomes a direct or indirect Subsidiary of Company after the date of this
Agreement in a Permitted Acquisition, provided, however, that such Liens exist at
the time such Person becomes a Subsidiary and are not created in anticipation of such
acquisition and, in any event, do not secure Indebtedness aggregating, together with any
Indebtedness secured by Liens permitted pursuant to subsection 6.2A(ii) and any Indebtedness
permitted pursuant to subsection 6.1(iii), in excess of $15,000,000 at any time outstanding;
(iv) Liens described in Schedule 6.2 annexed hereto; and
(v) To the extent the proceeds of the Indebtedness described in subsection 6.1(vii) are
used for working capital and other general corporate purposes only, Liens securing such
Indebtedness.
B. No Further Negative Pledges. Neither Company nor any of its Subsidiaries shall enter into
any agreement prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, to secure Indebtedness under any senior credit
facility, other than (i) an agreement prohibiting only the creation of Liens securing Subordinated
Indebtedness, (ii) any agreement evidencing Indebtedness secured by Liens permitted by
subsection 6.2A(ii), as to the assets securing such Indebtedness, (iii) Secured Working Capital
Debt, and (iv) any agreement evidencing an asset sale, as to the assets being sold.
C. No Restrictions on Subsidiary Distributions to Company or Other Subsidiaries. Company will
not, and will not permit any of its Subsidiaries to, create or otherwise cause or suffer to exist
or become effective any consensual encumbrance or restriction of any kind on the ability of any
such Subsidiary to (i) pay dividends or make any other distributions on any of such Subsidiary’s
Capital Stock owned by Company or any other Subsidiary of Company, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to Company or any other Subsidiary of Company, (iii) make
loans or advances to Company or any other Subsidiary of Company, or (iv) transfer any of its
property or assets to Company or any other Subsidiary of Company, except (a) as provided in this
Agreement or an agreement evidencing Indebtedness permitted under Section 6.1(vii) and (b), as to
transfers of assets, as may be provided in an agreement with respect to a sale of such assets.
6.3 Investments; Acquisitions.
Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly,
make or own any Investment in any Person, including any Joint Venture, or acquire, by purchase or
otherwise, all or substantially all the business, property or fixed assets of, or Capital Stock of
any Person, or any division or line of business of any Person except:
(i) Company and its Subsidiaries may make and own Investments in Cash and Cash
Equivalents, and Company’s Foreign Subsidiaries may make and own Investments in Foreign Cash
Equivalents;
49
(ii) Company and its wholly-owned Subsidiaries may make and own additional equity
Investments in their respective wholly-owned Subsidiaries (a) in an aggregate amount not to
exceed $2,500,000 at any time and (b) resulting from Subsidiary Debt Conversions;
(iii) Company and its Subsidiaries may make intercompany loans to the extent permitted
under subsections 6.1(iv) and (v);
(iv) Company and its Subsidiaries may continue to own the Investments owned by them and
described in Schedule 6.3 annexed hereto;
(v) Company and its Subsidiaries may acquire assets (including Capital Stock and
including Capital Stock of Subsidiaries formed in connection with any such acquisition)
having a fair market value not in excess of $20,000,000 in any one Fiscal Year;
provided that no Potential Event of Default or Event of Default shall have occurred
and be continuing at the time such acquisition occurs or after giving effect thereto;
(vi) Pursuant to the Acquisition Agreement;
(vii) Company and its Subsidiaries may make and own other Investments in an aggregate
amount not to exceed at any time $3,000,000;
(viii) Company and its Subsidiaries may acquire the remaining 51% ownership interest of
Hypercom (Thailand) Co., Ltd. not already directly or indirectly owned by Company;
(ix) Company and its Subsidiaries may receive and hold promissory notes and other
non-cash consideration received in connection with any Asset Sale permitted by
subsection 6.6; and
(x) Company and its Subsidiaries may acquire Securities in connection with the
satisfaction or enforcement of Indebtedness or claims due or owing to Company or any of its
Subsidiaries or as security for any such Indebtedness or claim.
6.4 Contingent Obligations.
Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly,
create or become or remain liable with respect to any Contingent Obligation, except:
(i) Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations in respect of standby letters of credit (including any letters of
credit issued pursuant to any Secured Working Capital Debt facility) in the ordinary course
of business in an aggregate face amount not to exceed at any time $15,000,000;
(ii) Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations under Hedge Agreements not entered into for speculative purposes;
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(iii) Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations in respect of customary indemnification and purchase price adjustment
obligations incurred in connection with Asset Sales or other sales of assets;
(iv) Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations under guarantees in the ordinary course of business of the
obligations of suppliers, customers, franchisees and licensees of Company and its
Subsidiaries;
(v) Company may become and remain liable with respect to Contingent Obligations in
respect of any Indebtedness of Company or any of its Subsidiaries permitted by
subsection 6.1;
(vi) Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations under guaranties, bonds or other similar obligations in the ordinary
course of business with respect to the performance obligations of Company or any of its
Subsidiaries;
(vii) Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations constituting Investments permitted by this Agreement; and
(viii) Company and its Subsidiaries may become and remain liable with respect to
Contingent Obligations not described in the foregoing items (i) through (vii), but only to
the extent the same do not exceed $500,000 in the aggregate any one time outstanding.
6.5 Restricted Junior Payments.
Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly,
declare, order, pay, make or set apart any sum for any Restricted Junior Payment; provided
that Company may (i) make regularly scheduled payments of interest in respect of any Subordinated
Indebtedness in accordance with the terms of, and only to the extent required by, and subject to
the subordination provisions contained in, the indenture or other agreement pursuant to which such
Subordinated Indebtedness was issued, as such indenture or other agreement may be amended from time
to time to the extent permitted under subsection 6.9B, (ii) so long as no Event of Default or
Potential Event of Default shall have occurred and be continuing or shall be caused thereby, make
Restricted Junior Payments to any of the Sellers in respect of the “Contingent Payment” (as defined
in the Acquisition Agreement) in accordance with the terms and conditions of the Acquisition
Agreement, and (iii) purchase, redeem, retire or otherwise acquire for value such warrants, options
or rights held by employees or former employees of Company (or their estates or beneficiaries of
their estates) upon death, disability, retirement or termination of employment or pursuant to the
terms of any agreement under which such warrants, options or rights were issued in an aggregate
amount not to exceed $1,000,000 in any Fiscal Year.
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6.6 Restriction on Fundamental Changes; Asset Sales.
Company shall not, and shall not permit any of its Subsidiaries to, alter the corporate,
capital or legal structure of Company or any of its Subsidiaries, or enter into any transaction of
merger or consolidation, or liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor), transfer or otherwise
dispose of, in one transaction or a series of transactions, all or any part of its business,
property or assets (including its notes or receivables and Capital Stock of a Subsidiary, whether
newly issued or outstanding), whether now owned or hereafter acquired, except:
(i) any Subsidiary of Company may be merged with or into Company or any other
Subsidiary, or be liquidated, wound up or dissolved, or all or any part of its business,
property or assets may be conveyed, sold, leased, transferred or otherwise disposed of, in
one transaction or a series of transactions, to Company or any other Subsidiary;
provided that, in the case of such a merger involving Company, Company shall be the
continuing or surviving Person;
(ii) Company and its Subsidiaries may sell or otherwise dispose of assets in
transactions that do not constitute Asset Sales; provided that the consideration
received for such assets shall be in an amount at least equal to the fair market value
thereof;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or surplus
property in the ordinary course of business;
(iv) Company and its Subsidiaries may dispose of equipment having a fair market value
not to an exceed an aggregate amount of $3,000,000 in any Fiscal Year in connection with a
sale and leaseback transaction permitted pursuant to subsection 6.8;
(v) Company and its Subsidiaries may make Asset Sales of assets having a fair market
value not in excess of $15,000,000; provided that (a) the consideration received for
such assets shall be in an amount at least equal to the fair market value thereof; (b) no
less than 90% of the consideration received shall be Cash; provided,
further, that, with respect to Asset Sales of assets having a fair market value not
in excess of $2,500,000 in the aggregate, the sole consideration for such Asset Sales may be
Intellectual Property so long as such the fair market value of such Intellectual Property is
equal to the value of the assets so sold or transferred; and (c) no Potential Event of
Default or Event of Default shall have occurred or be continuing after giving effect
thereto;
(vi) in order to resolve disputes that occur in the ordinary course of business,
Company and its Subsidiaries may discount or otherwise compromise for less than the face
value thereof, notes or accounts receivable;
(vii) Company or a Subsidiary may sell or dispose of shares of Capital Stock of any of
its Subsidiaries in order to qualify members of the Governing Body of the Subsidiary if
required by applicable law;
52
(viii) Any Subsidiary of Company may change its tax, charter or other organizational
identification number or change its form or jurisdiction of organization;
(ix) any Person may be merged with or into Company or any Subsidiary if the acquisition
of the Capital Stock of such Person by Company or such Subsidiary would have been permitted
pursuant to subsection 6.3; provided that (a) in the case of Company, Company shall
be the continuing or surviving Person, and (b) no Potential Event of Default or Event of
Default shall have occurred or be continuing after giving effect thereto.
6.7 Transactions with Affiliates.
Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale, lease or exchange of
any property or the rendering of any service) with any Affiliate of Company on terms that are less
favorable to Company or that Subsidiary, as the case may be, than those that might be obtained at
the time from Persons who are not such an Affiliate; provided that the foregoing
restriction shall not apply to (i) any transaction between Company and any of its wholly-owned
Subsidiaries or between any of its Subsidiaries, (ii) reasonable and customary fees (including
indemnities) paid to members of the Governing Bodies of Company and its Subsidiaries, (iii) payment
of customary compensation (including indemnities) to officers and employees for services actually
rendered, and loans and advances otherwise permitted hereunder, or (iv) transactions among Company
and its Subsidiaries made for transfer pricing in the ordinary course of business and year-end
adjustments to transfer pricing made in the ordinary course of business to maintain customary
distribution margins.
6.8 Sales and Lease-Backs.
Company shall not, and shall not permit any of its Subsidiaries to, directly or indirectly,
become or remain liable as lessee or as a guarantor or other surety with respect to any lease,
whether an Operating Lease or a Capital Lease, of any property (whether real, personal or mixed),
whether now owned or hereafter acquired, (i) that Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company or any of its
Subsidiaries) or (ii) that Company or any of its Subsidiaries intends to use for substantially the
same purpose as any other property that has been or is to be sold or transferred by Company or any
of its Subsidiaries to any Person (other than Company or any of its Subsidiaries) in connection
with such lease; provided that Company and its Subsidiaries may become and remain liable as
lessee, guarantor or other surety with respect to any such agreement if and to the extent that
Company or any of its Subsidiaries would be permitted to enter into, and remain liable under, such
agreement to the extent that the transaction would be permitted under subsection 6.1, assuming
(regardless of whether in fact such lease is an Operating Lease or a Capital Lease) if a sale and
lease back transaction, it would constitute Indebtedness in a principal amount equal to the gross
proceeds of the sale.
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6.9 Conduct of Business.
From and after the Execution Date, Company shall not, and shall not permit any of its
Subsidiaries to, engage in any business other than (i) the businesses engaged in by Company and its
Subsidiaries on the Execution Date and similar or related businesses and (ii) such other lines of
business as may be consented to by Administrative Agent (such consent not to be unreasonably
withheld).
6.10 Amendments or Waivers of Certain Agreements; Amendments of Documents
Relating to Subordinated Indebtedness.
A. Amendments or Waivers of Certain Agreements. Neither Company nor any of its Subsidiaries
will agree to any material amendment to, or waive any of its material rights under, any Related
Agreement after the Execution Date without in each case obtaining the prior written consent of
Requisite Lenders to such amendment or waiver.
B. Amendments of Documents Relating to Subordinated Indebtedness. Company shall not, and
shall not permit any of its Subsidiaries to, amend or otherwise change the terms of any
Subordinated Indebtedness, or make any payment consistent with an amendment thereof or change
thereto, if the effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which payments of principal or
interest are due thereon, change any event of default or condition to an event of default with
respect thereto (other than to eliminate any such event of default or increase any grace period
related thereto), change the redemption, prepayment or defeasance provisions thereof, change the
subordination provisions thereof (or of any guaranty thereof), or change any collateral therefor
(other than to release such collateral), or if the effect of such amendment or change, together
with all other amendments or changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such Subordinated Indebtedness (or
a trustee or other representative on their behalf) which would be adverse to Company or Lenders.
6.11 Fiscal Year.
Company shall not change its Fiscal Year-end from December 31.
Section 7. EVENTS OF DEFAULT
If any of the following conditions or events (“Events of Default”) shall occur:
7.1 Failure to Make Payments When Due.
Failure by Company to pay any installment of principal of any Loan when due, whether at stated
maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise;
or failure by Company to pay any interest on any Loan or any fee or any other amount due under this
Agreement within five days after the date due; or
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7.2 Default in Other Agreements.
(i) Failure of Company or any of its Subsidiaries to pay when due any principal of or
interest on or any other amount payable in respect of one or more items of Indebtedness
(other than Indebtedness referred to in subsection 7.1) or Contingent Obligations in an
individual principal amount of $3,000,000 or more or with an aggregate principal amount of
$3,000,000 or more, in each case beyond the end of any grace period provided therefor; or
(ii) breach or default by Company or any of its Subsidiaries with respect to any other
material term of (a) one or more items of Indebtedness or Contingent Obligations in the
individual or aggregate principal amounts referred to in clause (i) above or (b) any loan
agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness
or Contingent Obligation(s), if the effect of such breach or default is to cause, or to
permit the holder or holders of that Indebtedness or Contingent Obligation(s) (or a trustee
on behalf of such holder or holders) to cause, that Indebtedness or Contingent Obligation(s)
to become or be declared due and payable prior to its stated maturity or the stated maturity
of any underlying obligation, as the case may be (upon the giving or receiving of notice,
lapse of time, both, or otherwise); or
7.3 Breach of Certain Covenants.
Failure of Company to perform or comply with any term or condition contained in subsection 2.5
or 5.2 or Section 6 of this Agreement; or
7.4 Breach of Warranty.
Any representation, warranty, certification or other statement made by Company or any of its
Subsidiaries in any Loan Document or in any statement or certificate at any time given by Company
or any of its Subsidiaries in writing pursuant hereto or thereto or in connection herewith or
therewith shall be false in any material respect on the date as of which made; or
7.5 Other Defaults Under Loan Documents
Company shall default in the performance of or compliance with any term contained in this
Agreement or any of the other Loan Documents, other than any such term referred to in any other
subsection of this Section 7, and such default shall not have been remedied or waived within 30
days after the earlier of (i) an Officer of Company becoming aware of such default or (ii) receipt
by Company of notice from Administrative Agent or any Lender of such default; or
7.6 Involuntary Bankruptcy; Appointment of Receiver, etc.
(i) A court having jurisdiction in the premises shall enter a decree or order for
relief in respect of Company or any of its Subsidiaries in an involuntary case under the
Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar law
55
now or hereafter in effect, which decree or order is not stayed; or any other similar
relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case shall be commenced against Company or any of its Subsidiaries
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency or similar
law now or hereafter in effect; or a decree or order of a court having jurisdiction in the
premises for the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its Subsidiaries, or over all or
a substantial part of its property, shall have been entered; or there shall have occurred
the involuntary appointment of an interim receiver, trustee or other custodian of Company or
any of its Subsidiaries for all or a substantial part of its property; or a warrant of
attachment, execution or similar process shall have been issued against any substantial part
of the property of Company or any of its Subsidiaries, and any such event described in this
clause (ii) shall continue for 60 days unless dismissed, bonded or discharged; or
7.7 Voluntary Bankruptcy; Appointment of Receiver, etc..
(i) Company or any of its Subsidiaries shall have an order for relief entered with
respect to it or commence a voluntary case under the Bankruptcy Code or under any other
applicable bankruptcy, insolvency or similar law now or hereafter in effect, or shall
consent to the entry of an order for relief in an involuntary case, or to the conversion of
an involuntary case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian for all or a
substantial part of its property; or Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or
(ii) Company or any of its Subsidiaries shall be unable, or shall fail generally, or
shall admit in writing its inability, to pay its debts as such debts become due; or the
Governing Body of Company or any of its Subsidiaries (or any committee thereof) shall adopt
any resolution or otherwise authorize any action to approve any of the actions referred to
in clause (i) above or this clause (ii); or
7.8 Judgments and Attachments.
Any money judgment, writ or warrant of attachment or similar process involving in the
aggregate at any time an amount in excess of $3,000,000, to the extent not (i) adequately covered
by insurance as to which a solvent and unaffiliated insurance company has acknowledged coverage or
(ii) pursuant to any claims which are the subject of an indemnity agreement made by Francisco
Partners in favor of Company, shall be entered or filed against Company or any of its Subsidiaries
or any of their respective assets and shall remain undischarged, unvacated, unbonded or unstayed
for a period of 60 days (or in any event later than five days prior to the date of any proposed
sale thereunder); or
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7.9 Dissolution.
Any order, judgment or decree shall be entered against Company or any of its material
Subsidiaries decreeing the dissolution or split up of Company or such Subsidiary and such order
shall remain undischarged or unstayed for a period in excess of 30 days; or
7.10 Employee Benefit Plans.
There shall occur one or more ERISA Events or similar events in respect of any Foreign Plans,
that individually or in the aggregate result in or might reasonably be expected to result in
liability of Company, any of its Subsidiaries or any of their respective ERISA Affiliates in excess
of $5,000,000 during the term of this Agreement; or there shall exist an amount of unfunded benefit
liabilities (as defined in Section 4001(a)(18) of ERISA) in respect of any Pension Plan and
unfunded liabilities in respect of Foreign Plans (excluding any Foreign Plans applicable to Targets
and their Subsidiaries), individually or in the aggregate for all such Pension Plans and Foreign
Plans (excluding for purposes of such computation any Pension Plans and any Foreign Plans with
respect to which assets exceed benefit liabilities), which exceeds $5,000,000; or there shall exist
unfunded liabilities in respect of Foreign Plans applicable to Targets and their Subsidiaries,
individually or in the aggregate for all such Foreign Plans (excluding for purposes of such
computation any Foreign Plans with respect to which assets exceed benefit liabilities), which
exceeds €5,000,000; or
7.11 Change in Control.
A Change in Control shall have occurred; or
7.12 Invalidity of Loan Documents; Repudiation of Obligations.
At any time after the execution and delivery thereof, (i) any Loan Document or any provision
thereof, for any reason other than the satisfaction in full of all Obligations, shall cease to be
in full force and effect (other than in accordance with its terms) or shall be declared (other than
by Administrative Agent or any Lender) to be null and void or (ii) Company shall contest the
validity or enforceability of any Loan Document or any provision thereof in writing or deny in
writing that it has any further liability, including with respect to future advances by Lenders,
under any Loan Document or any provision thereof; or
7.13 Failure to Consummate Acquisition.
The Acquisition shall not be consummated in accordance with this Agreement and the applicable
Related Agreements concurrently with the making of the Loans, or the Acquisition shall be unwound,
reversed or otherwise rescinded in whole or in part for any reason:
THEN (i) upon the occurrence of any Event of Default described in subsection 7.6 or 7.7, each
of (a) the unpaid principal amount of and accrued interest on the Loans, and (b) all other
Obligations shall automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly waived by
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Company, and the obligation of each Lender to make any Loan hereunder shall thereupon
terminate, and (ii) upon the occurrence and during the continuation of any other Event of Default,
Administrative Agent shall, upon the written request or with the written consent of Requisite
Lenders, by written notice to Company, declare all or any portion of the amounts described in
clauses (a) and (b) above to be, and the same shall forthwith become, immediately due and payable,
and the obligation of each Lender to make any Loan hereunder shall thereupon terminate.
Section 8. ADMINISTRATIVE AGENT
8.1 Appointment of Administrative Agent.
Francisco Partners is hereby appointed Administrative Agent hereunder and under the other Loan
Documents. Each Lender hereby authorizes Administrative Agent to act as its agent in accordance
with the terms of this Agreement and the other Loan Documents. Francisco Partners agrees to act
upon the express conditions contained in this Agreement and the other Loan Documents, as
applicable. The provisions of this Section 8 are solely for the benefit of Administrative Agent
and Lenders and Company shall have no rights as a third party beneficiary of any of the provisions
thereof. In performing its functions and duties under this Agreement, Administrative Agent (other
than as provided in subsection 2.1D) shall act solely as an agent of Lenders and does not assume
and shall not be deemed to have assumed any obligation towards or relationship of agency or trust
with or for Company.
Administrative Agent may execute any of its duties under this Agreement or any other Loan
Document by or through agents, employees or attorneys-in-fact appointed by Administrative Agent in
its sole discretion. Administrative Agent and any such sub-agent may perform any and all of the
duties of Administrative Agent and exercise the rights and powers of Administrative Agent by or
through their respective Affiliates and the partners, directors, officers, employees, agents and
advisors of such Person and of such Person’s Affiliates (“Related Parties”). The exculpatory
provisions of this Section shall apply to any such sub-agent and to the Related Parties of
Administrative Agent and any such sub-agent.
8.2 Powers and Duties; General Immunity.
X. Xxxxxx; Duties Specified. Each Lender irrevocably authorizes Administrative Agent to take
such action on such Lender’s behalf and to exercise such powers, rights and remedies hereunder and
under the other Loan Documents as are specifically delegated or granted to Administrative Agent by
the terms hereof and thereof, together with such powers, rights and remedies as are reasonably
incidental thereto. Administrative Agent shall have only those duties and responsibilities that
are expressly specified in this Agreement and the other Loan Documents. Administrative Agent may
exercise such powers, rights and remedies and perform such duties by or through its agents or
employees. Administrative Agent shall not have, by reason of this Agreement or any of the other
Loan Documents, a fiduciary relationship in respect of any Lender or Company; and nothing in this
Agreement or any of the other Loan Documents, expressed or implied, is intended to or shall be so
construed as to impose upon Administrative Agent any obligations in respect of this Agreement or any of the other Loan
Documents except as expressly set forth herein or therein.
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B. No Responsibility for Certain Matters. Administrative Agent shall have no responsibility
to any Lender for the execution, effectiveness, genuineness, validity, enforceability,
collectibility or sufficiency of this Agreement or any other Loan Document or for any
representations, warranties, recitals or statements made herein or therein or made in any written
or oral statements or in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by Administrative Agent to Lenders or by or on behalf of
Company to Administrative Agent or any Lender in connection with the Loan Documents and the
transactions contemplated thereby or for the financial condition or business affairs of Company or
any other Person liable for the payment of any Obligations, nor shall Administrative Agent be
required to ascertain or inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained in any of the Loan Documents or as to the
use of the proceeds of the Loans or as to the existence or possible existence of any Event of
Default or Potential Event of Default. Anything contained in this Agreement to the contrary
notwithstanding, Administrative Agent shall not have any liability arising from confirmations of
the amount of outstanding Loans or the component amounts thereof.
C. Exculpatory Provisions. Neither Administrative Agent nor any of its officers, directors,
employees or agents shall be liable to Lenders for any action taken or omitted by Administrative
Agent under or in connection with any of the Loan Documents except to the extent caused by
Administrative Agent’s gross negligence or willful misconduct. Administrative Agent shall be
entitled to refrain from any act or the taking of any action (including the failure to take an
action) in connection with this Agreement or any of the other Loan Documents or from the exercise
of any power, discretion or authority vested in it hereunder or thereunder unless and until
Administrative Agent shall have received instructions in respect thereof from Requisite Lenders (or
such other Lenders as may be required to give such instructions under subsection 9.6) and, upon
receipt of such instructions from Requisite Lenders (or such other Lenders, as the case may be),
Administrative Agent shall be entitled to act or (where so instructed) refrain from acting, or to
exercise such power, discretion or authority, in accordance with such instructions;
provided that Administrative Agent shall not be required to take any action that, in its
opinion or the opinion of its counsel, may expose Administrative Agent to liability or that is
contrary to any Loan Document or applicable law. Without prejudice to the generality of the
foregoing, (i) Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication (including any electronic message, Internet or intranet website
posting or other distribution), instrument or document believed by it to be genuine and correct and
to have been signed or sent by the proper person or persons, and shall be entitled to rely and
shall be protected in relying on opinions and judgments of attorneys (who may be attorneys for
Company and its Subsidiaries), accountants, experts and other professional advisors selected by it;
and (ii) no Lender shall have any right of action whatsoever against Administrative Agent as a
result of Administrative Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions of Requisite
Lenders (or such other Lenders as may be required to give such instructions under subsection
9.6).
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D. Administrative Agent Entitled to Act as Lender. The agency hereby created shall in no way
impair or affect any of the rights and powers of, or impose any duties or obligations upon,
Administrative Agent in its individual capacity as a Lender hereunder. With respect to its
participation in the Loans, Administrative Agent shall have the same rights and powers hereunder as
any other Lender and may exercise the same as though it were not performing the duties and
functions delegated to it hereunder, and the term “Lender” or “Lenders” or any similar term shall,
unless the context clearly otherwise indicates, includes Administrative Agent in its individual
capacity. Administrative Agent and its Affiliates may accept deposits from, lend money to, acquire
equity interests in and generally engage in any kind of commercial banking, investment banking,
trust, financial advisory or other business with Company or any of its Affiliates as if it were not
performing the duties specified herein, and may accept fees and other consideration from Company
for services in connection with this Agreement and otherwise without having to account for the same
to Lenders.
8.3 Independent Investigation by Lenders; No Responsibility For Appraisal of
Creditworthiness.
Each Lender agrees that it has made its own independent investigation of the financial
condition and affairs of Company and its Subsidiaries in connection with the making of the Loans
hereunder and that it has made and shall continue to make its own appraisal of the creditworthiness
of Company and its Subsidiaries. Administrative Agent shall have no duty or responsibility, either
initially or on a continuing basis, to make any such investigation or any such appraisal on behalf
of Lenders or to provide any Lender with any credit or other information with respect thereto,
whether coming into its possession before the making of the Loans or at any time or times
thereafter, and Administrative Agent shall have no responsibility with respect to the accuracy of
or the completeness of any information provided to Lenders.
8.4 Right to Indemnity.
Each Lender, in proportion to its Pro Rata Share, severally agrees to indemnify Administrative
Agent and its officers, directors, employees, agents, attorneys, professional advisors and
Affiliates to the extent that any such Person shall not have been reimbursed by Company, for and
against any and all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses (including counsel fees and disbursements and fees and disbursements of any
financial advisor engaged by Administrative Agent) or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by or asserted against Administrative Agent or such
other Person in exercising the powers, rights and remedies of Administrative Agent or performing
duties of Administrative Agent hereunder or under the other Loan Documents or otherwise in its
capacity as Agent in any way relating to or arising out of this Agreement or the other Loan
Documents; provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of Administrative Agent resulting solely from Administrative Agent’s gross negligence
or willful misconduct as determined by a final judgment of a court of
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competent jurisdiction. If any indemnity furnished to Administrative Agent or any other such
Person for any purpose shall, in the opinion of Administrative Agent, be insufficient or become
impaired, Administrative Agent may call for additional indemnity and cease, or not commence, to do
the acts indemnified against until such additional indemnity is furnished.
8.5 Resignation of Administrative Agent; Successor Administrative Agent.
Administrative Agent may resign at any time by giving 30 days’ prior written notice thereof to
Lenders and Company. Upon any such notice of resignation by Administrative Agent, Requisite
Lenders shall have the right, upon (a) five Business Days’ notice to Company and (b) so long as no
Event of Default has occurred and is continuing, the consent of Company, to appoint a successor
Administrative Agent; provided that the consent of Company shall not be required if such
successor Administrative Agent is an Affiliate of the retiring Administrative Agent. If no such
successor shall have been so appointed by Requisite Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice of its resignation,
the retiring Administrative Agent may, on behalf of Lenders and with consultation of Company,
appoint a successor Administrative Agent. If Administrative Agent shall notify Lenders and Company
that no Person has accepted such appointment as successor Administrative Agent, such resignation
shall nonetheless become effective in accordance with Administrative Agent’s notice and (i) the
retiring Administrative Agent shall be discharged from its duties and obligations under the Loan
Documents and (ii) all payments, communications and determinations provided to be made by, to or
through Administrative Agent shall instead be made by, to or through each Lender directly, until
such time as Requisite Lenders appoint a successor Administrative Agent in accordance with this
subsection 8.5A. Upon the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the retiring Administrative
Agent and the retiring Administrative Agent shall be discharged from its duties and obligations
under this Agreement (if not already discharged as set forth above). After any retiring Agent’s
resignation hereunder, the provisions of this Section 8 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent under this Agreement.
8.6 Administrative Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to
Company or any of the Subsidiaries of Company, Administrative Agent (irrespective of whether the
principal of any Loan shall then be due and payable as herein expressed or by declaration or
otherwise and irrespective of whether Administrative Agent shall have made any demand on Company)
shall be entitled and empowered, by intervention in such proceeding or otherwise
(i) to file and prove a claim for the whole amount of principal and interest owing and
unpaid in respect of the Loans and any other Obligations that are owing and unpaid and to
file such other papers or documents as may be necessary or advisable in order to have the
claims of Lenders and Administrative Agent (including any claim for the reasonable
compensation, expenses, disbursements and advances of Lenders and
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Administrative Agent and their agents and counsel and all other amounts due Lenders and
Administrative Agent under subsections 2.3 and 9.2) allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to
Administrative Agent and, in the event that Administrative Agent shall consent to the making of
such payments directly to Lenders, to pay to Administrative Agent any amount due for the reasonable
compensation, expenses, disbursements and advances of Administrative Agent and their agents and
counsel, and any other amounts due Administrative Agent under subsections 2.3 and 9.2.
Nothing herein contained shall be deemed to authorize Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lenders or to authorize
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
Section 9. MISCELLANEOUS
9.1 Successors and Assigns; Assignments and Participations in Loans.
A. General. This Agreement shall be binding upon the parties hereto and their respective
successors and assigns and shall inure to the benefit of the parties hereto and the successors and
assigns of Lenders (it being understood that Lenders’ rights of assignment are subject to the
further provisions of this subsection 9.1). Neither Company’s rights or obligations hereunder nor
any interest therein may be assigned or delegated by Company without the prior written consent of
all Lenders (and any attempted assignment or transfer by Company without such consent shall be null
and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Affiliates of each of Administrative Agent
and Lenders and Indemnitees) any legal or equitable right, remedy or claim under or by reason of
this Agreement. In addition, no sale, assignment, transfer or participation of any Loan by any
Lender shall, without consent of Company, require Company to file a registration statement with the
Securities and Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state.
B. Assignments.
(i) Amounts and Terms of Assignments. Any Lender may assign to one or more
Eligible Assignees all or any portion of its rights and obligations under this Agreement;
provided that (a), except (1) in the case of an assignment of the entire remaining
amount of the assigning Lender’s rights and obligations under this Agreement or (2) in the
case of an assignment to a Lender or an Affiliate of a Lender or an Approved
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Fund of a Lender, Loan Exposure of the assigning Lender and the assignee subject to
each such assignment shall not be less than $5,000,000 (aggregating concurrent assignments
to two or more Affiliated Funds for purposes of determining such minimum amount), unless
Administrative Agent otherwise consents (such consent not to be unreasonably withheld or
delayed), (b) each partial assignment shall be made as an assignment of a proportionate part
of all the assigning Lender’s rights and obligations under this Agreement with respect to
the Loan or the Commitment assigned, (c) the parties to each assignment shall execute and
deliver to Administrative Agent an Assignment Agreement, together with a processing and
recordation fee of $3,500 (unless the assignee is an Affiliate or an Approved Fund of the
assignor, in which case no fee shall be required, and provided that only one such processing
and recordation fee shall be required in connection with concurrent assignments to two or
more Affiliated Funds), and the Eligible Assignee, if it shall not be a Lender, shall
deliver to Administrative Agent information reasonably requested by Administrative Agent,
including such forms, certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such Assignment Agreement may
be required to deliver to Administrative Agent pursuant to subsection 2.6B(iv) and (d),
except in the case of an assignment to another Lender, an Affiliate of a Lender or an
Approved Fund of a Lender, the Administrative Agent shall have consented thereto.
Upon such execution, delivery and consent, from and after the effective date specified
in such Assignment Agreement, (y) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it pursuant to such
Assignment Agreement, shall have the rights and obligations of a Lender hereunder and (z)
the assigning Lender thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment Agreement, relinquish its rights (other
than any rights which survive the termination of this Agreement under subsection 9.9B) and
be released from its obligations under this Agreement (and, in the case of an Assignment
Agreement covering all or the remaining portion of an assigning Lender’s rights and
obligations under this Agreement, such Lender shall cease to be a party hereto). The
assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter
as practicable, surrender its Notes, if any, to Administrative Agent for cancellation, and
thereupon new Notes shall, if so requested by the assignee and/or the assigning Lender in
accordance with subsection 2.1E, be issued to the assignee and/or to the assigning Lender,
substantially in the form of Exhibit II annexed hereto, as the case may be, with
appropriate insertions, to reflect the amounts of the outstanding Loans of the assignee
and/or the assigning Lender. Other than as provided in subsection 9.5, any assignment or
transfer by a Lender of rights or obligations under this Agreement that does not comply with
this subsection 9.1B shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with subsection 9.1C.
(ii) Acceptance by Administrative Agent; Recordation in Register. Upon its
receipt of an Assignment Agreement executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with the processing and recordation
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fee referred to in subsection 9.1B(i) and any forms, certificates or other evidence
with respect to United States federal income tax withholding matters that such assignee may
be required to deliver to Administrative Agent pursuant to subsection 2.6B(iv),
Administrative Agent shall, if Administrative Agent has consented to the assignment
evidenced thereby (to the extent such consent is required pursuant to subsection 9.1B(i)),
(a) accept such Assignment Agreement by executing a counterpart thereof as provided therein
(which acceptance shall evidence any required consent of Administrative Agent to such
assignment), (b) record the information contained therein in the Register, and (c) give
prompt notice thereof to Company. Administrative Agent shall maintain a copy of each
Assignment Agreement delivered to and accepted by it as provided in this subsection
9.1B(ii).
C. Participations. Any Lender may, without the consent of, or notice to, Company or
Administrative Agent, sell participations to one or more Persons (other than a natural Person or
Company or any of its Affiliates) in all or a portion of such Lender’s rights and/or obligations
under this Agreement; provided that (i) such Lender’s obligations under this Agreement
shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) Company, Administrative Agent and Lenders
shall continue to deal solely and directly with such Lender in connection with such Lender’ s
rights and obligations under this Agreement. Any agreement or instrument pursuant to which a
Lender sells such a participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of any provision of
this Agreement; provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any amendment, modification or waiver
directly affecting (i) an extension of the scheduled final maturity date of any Loan allocated to
such participation, (ii) a reduction of the principal amount of or the rate of interest payable on
any Loan allocated to such participation or (iii) an increase in the Commitment allocated to such
participation. Subject to the further provisions of this subsection 9.1C, Company agrees that each
Participant shall be entitled to the benefits of subsection 2.6 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection 9.1B. To the extent
permitted by law, each Participant also shall be entitled to the benefits of subsection 9.4 as
though it were a Lender, provided such Participant agrees to be subject to subsection 9.5 as though
it were a Lender. A Participant shall not be entitled to receive any greater payment under
subsection 2.6 than the applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant unless the sale of the participation to such Participant is
made with Company’s prior written consent. No Participant shall be entitled to the benefits of
subsection 2.6 unless Company is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of Company, to comply with subsection 2.6B(iv) as though it
were a Lender.
D. Pledges and Assignments. Any Lender may at any time pledge or assign a security interest
in all or any portion of its Loans, and the other Obligations owed to such Lender, to secure
obligations of such Lender, including without limitation any pledge or assignment to secure
obligations to any Federal Reserve Bank; provided that (i) no Lender shall be relieved of
any of its obligations hereunder as a result of any such assignment or pledge and
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(ii) in no event shall any assignee or pledgee be considered to be a “Lender” or be entitled
to require the assigning Lender to take or omit to take any action hereunder.
E. Information. Each Lender may furnish any information concerning Company and its
Subsidiaries in the possession of that Lender from time to time to assignees and participants
(including prospective assignees and participants), subject to subsection 9.18. Notwithstanding
any other provision hereof, under no circumstance may Administrative Agent or any Lender provide
any confidential or non-public information relating to Company to any of Company’s competitors,
including but not limited to, Ingenico, NCR, VeriFone and Motorola except as otherwise required by
law.
F. Agreements of Lenders. Each Lender listed on the signature pages hereof hereby agrees, and
each Lender that becomes a party hereto pursuant to an Assignment Agreement shall be deemed to
agree, (i) that it is an Eligible Assignee described in clause (ii) of the definition thereof; (ii)
that it has experience and expertise in the making of or purchasing loans such as the Loans; and
(iii) that it will make or purchase Loans for its own account in the ordinary course of its
business and without a view to distribution of such Loans within the meaning of the Securities Act
or the Exchange Act or other federal securities laws (it being understood that, subject to the
provisions of this subsection 9.1, the disposition of such Loans or any interests therein shall at
all times remain within its exclusive control).
9.2 Expenses.
Whether or not the transactions contemplated hereby shall be consummated, Company agrees to
pay promptly: (i) all reasonable costs and documented expenses of counsel to Company in connection
with the negotiation, preparation and execution of the Loan Documents and any consents, amendments,
waivers or other modifications thereto; (ii) all costs and expenses of furnishing all opinions by
counsel for Company (including any opinions requested by Administrative Agent or Lenders as to any
legal matters arising hereunder) and of Company’s performance of and compliance with all agreements
and conditions on its part to be performed or complied with under this Agreement and the other Loan
Documents including with respect to confirming compliance with environmental, insurance and
solvency requirements; (iii) all reasonable fees, expenses and disbursements of one external
counsel to Administrative Agent in connection with the negotiation, preparation, execution and
administration of the Loan Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by Company; (iv) all other costs and
reasonable expenses incurred by Administrative Agent in connection with the syndication of the
Commitments; (v) all costs and expenses, including reasonable attorneys’ fees and reasonable fees,
costs and expenses of accountants, advisors and consultants, incurred by Administrative Agent and
its counsel relating to efforts to evaluate or assess Company, its business or financial condition;
and (vi) all costs and expenses, including attorneys’ fees, fees, costs and expenses of
accountants, advisors and consultants and costs of settlement, incurred by Administrative Agent and
Lenders in enforcing any Obligations of or in collecting any payments due from Company hereunder or
under the other Loan Documents (including in connection with the enforcement of the Loan Documents)
or in connection with any refinancing or restructuring of the credit arrangements
provided under this Agreement in the nature of a “work-out” or pursuant to any insolvency or
bankruptcy proceedings.
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9.3 Indemnity.
In addition to the payment of expenses pursuant to subsection 9.2, whether or not the
transactions contemplated hereby shall be consummated, Company agrees to defend (subject to
Indemnitees’ selection of counsel), indemnify, pay and hold harmless Administrative Agent and
Lenders, and the officers, directors, trustees, employees, agents, advisors and Affiliates of
Administrative Agent and Lenders (collectively called the “Indemnitees”), from and against any and
all Indemnified Liabilities (as hereinafter defined); provided that Company shall not have
any obligation to any Indemnitee hereunder with respect to any Indemnified Liabilities to the
extent such Indemnified Liabilities arise solely from the gross negligence or willful misconduct of
that Indemnitee as determined by a final judgment of a court of competent jurisdiction.
As used herein, “Indemnified Liabilities” means, collectively, any and all liabilities,
obligations, losses, damages (including natural resource damages), penalties, actions, judgments,
suits, claims (including Environmental Claims), costs (including the costs of any investigation,
study, sampling, testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or xxxxx any Hazardous Materials Activity), expenses and
disbursements of any kind or nature whatsoever (including the reasonable fees and disbursements of
counsel for Indemnitees in connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall be designated as a
party or a potential party thereto, and any fees or expenses incurred by Indemnitees in enforcing
this indemnity), whether direct or indirect and whether based on any federal, state or foreign
laws, statutes, rules or regulations (including securities and commercial laws, statutes, rules or
regulations and Environmental Laws), on common law or equitable cause or on contract or otherwise,
that may be imposed on, incurred by, or asserted against any such Indemnitee, in any manner
relating to or arising out of (i) this Agreement, the other Loan Documents, the Related Agreements,
the commitment letter delivered by Francisco Partners to Company with respect thereto or the
transactions contemplated hereby or thereby (including Lenders’ agreement to make the Loans
hereunder or the use or intended use of the proceeds thereof or any enforcement of any of the Loan
Documents), or (ii) any Environmental Claim or any Hazardous Materials Activity relating to or
arising from, directly or indirectly, any past or present activity, operation, land ownership, or
practice of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and hold harmless set forth in
this subsection 9.3 may be unenforceable in whole or in part because they are violative of any law
or public policy, Company shall contribute the maximum portion that it is permitted to pay and
satisfy under applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
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9.4 Set-Off.
In addition to any rights now or hereafter granted under applicable law and not by way of
limitation of any such rights, upon the occurrence and during the continuation of any Event of
Default each of Lenders and their Affiliates is hereby authorized by Company at any time or from
time to time, without notice to Company or to any other Person, any such notice being hereby
expressly waived, to set off and to appropriate and to apply (to the extent permitted by any
applicable intercreditor agreement) any and all deposits (general or special, time or demand,
provisional or final, including Indebtedness evidenced by certificates of deposit, whether matured
or unmatured, but not including trust accounts) and any other Indebtedness at any time held or
owing by that Lender or any Affiliate of that Lender to or for the credit or the account of Company
against and on account of the Obligations of Company to that Lender (or any Affiliate of that
Lender) or to any other Lender (or any Affiliate of any other Lender) under this Agreement and the
other Loan Documents, including all claims of any nature or description arising out of or connected
with this Agreement or any other Loan Document, irrespective of whether or not (i) that Lender
shall have made any demand hereunder or (ii) the principal of or the interest on the Loans or any
other amounts due hereunder shall have become due and payable pursuant to Section 7 and although
said obligations and liabilities, or any of them, may be contingent or unmatured.
9.5 Ratable Sharing.
Lenders hereby agree among themselves that if any of them shall, whether by voluntary or
mandatory payment (other than a payment or prepayment of Loans made and applied in accordance with
the terms of this Agreement), by realization upon security, through the exercise of any right of
set-off or banker’s lien, by counterclaim or cross action or by the enforcement of any right under
the Loan Documents or otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the aggregate amount of
principal, interest, fees and other amounts then due and owing to that Lender hereunder or under
the other Loan Documents (collectively, the “Aggregate Amounts Due” to such Lender) that is greater
than the proportion received by any other Lender in respect of the Aggregate Amounts Due to such
other Lender, then the Lender receiving such proportionately greater payment shall, unless such
proportionately greater payment is required by the terms of this Agreement, (i) notify
Administrative Agent and each other Lender of the receipt of such payment and (ii) apply a portion
of such payment to purchase assignments (which it shall be deemed to have purchased from each
seller of an assignment simultaneously upon the receipt by such seller of its portion of such
payment) of the Aggregate Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate Amounts Due to them;
provided that (a) if all or part of such proportionately greater payment received by such
purchasing Lender is thereafter recovered from such Lender upon the bankruptcy or reorganization of
Company or otherwise, those purchases shall be rescinded and the purchase prices paid for such
assignments shall be returned to such purchasing Lender ratably to the extent of such recovery, but
without interest and (b) the foregoing provisions shall not apply to (1) any payment made by
Company pursuant to and in accordance with the express terms of this Agreement or (2) any payment
obtained by a Lender as consideration for the assignment (other than an assignment pursuant to this
subsection 9.5) of or the sale of a participation in any of its Obligations to any Eligible
Assignee or Participant pursuant to subsection 9.1B. Company expressly consents to the foregoing
arrangement and
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agrees that any purchaser of an assignment so purchased may exercise any and all rights of a
Lender as to such assignment as fully as if that Lender had complied with the provisions of
subsection 9.1B with respect to such assignment. In order to further evidence such assignment (and
without prejudice to the effectiveness of the assignment provisions set forth above), each
purchasing Lender and each selling Lender agree to enter into an Assignment Agreement at the
request of a selling Lender or a purchasing Lender, as the case may be, in form and substance
reasonably satisfactory to each such Lender.
9.6 Amendments and Waivers.
No amendment, modification, termination or waiver of any provision of this Agreement or of the
Notes, and no consent to any departure by Company therefrom, shall in any event be effective
without the written concurrence of Requisite Lenders; provided that no such amendment,
modification, termination, waiver or consent shall, without the consent of:
(a) each Lender with Obligations directly affected (whose consent shall be
required for any such amendment, modification, termination or waiver in addition to
that of Requisite Lenders) (1) reduce the principal amount of any Loan, (2) postpone
the scheduled final maturity date of any Loan or reduce the amount of any scheduled
payment (but not prepayment) of principal of any Loan, (3) postpone the date on
which any interest or any fees are payable, or (4) decrease the interest rate borne
by any Loan (other than any waiver of any increase in the interest rate applicable
to any of the Loans pursuant to subsection 2.2C) or the amount of any fees payable
hereunder;
(b) each Lender, (1) change in any manner the definition of “Pro Rata Share”
or the definition of “Requisite Lenders” (except for any changes resulting solely
from an increase in the aggregate amount of the Commitments approved by Requisite
Lenders), (2) change in any manner any provision of this Agreement that, by its
terms, expressly requires the approval or concurrence of all Lenders, or (3) change
in any manner or waive the provisions contained in subsection 2.4D, subsection 7.1,
subsection 9.5 or this subsection 9.6.
In addition, no amendment, modification, termination or waiver of any provision (i) of any
Note shall be effective without the written concurrence of the Lender which is the holder of that
Note, and (ii) of Section 8 or of any other provision of this Agreement which, by its terms,
expressly requires the approval or concurrence of Administrative Agent shall be effective without
the written concurrence of Administrative Agent.
Administrative Agent may, but shall have no obligation to, with the concurrence of any Lender,
execute amendments, modifications, waivers or consents on behalf of that Lender. Any waiver or
consent shall be effective only in the specific instance and for the specific purpose for which it
was given. No notice to or demand on Company in any case shall entitle Company to any other or
further notice or demand in similar or other circumstances. Any amendment, modification,
termination, waiver or consent effected in accordance with this subsection 9.6 shall be binding
upon each Lender at the time outstanding, each future Lender and, if signed by Company, on Company.
68
9.7 Independence of Covenants.
All covenants hereunder shall be given independent effect so that if a particular action or
condition is not permitted by any of such covenants, the fact that it would be permitted by an
exception to, or would otherwise be within the limitations of, another covenant shall not avoid the
occurrence of an Event of Default or Potential Event of Default if such action is taken or
condition exists.
9.8 Notices; Effectiveness of Signatures.
Unless otherwise specifically provided herein, any notice or other communication herein
required or permitted to be given shall be in writing and may be personally served, or sent by
telefacsimile or United States mail or courier service and shall be deemed to have been given when
delivered in person or by courier service, upon receipt of telefacsimile in complete and legible
form, or three Business Days after depositing it in the United States mail with postage prepaid and
properly addressed; provided that notices to Administrative Agent shall not be effective
until received. For the purposes hereof, the address of each party hereto shall be as set forth
under such party’s name on the signature pages hereof or (i) as to Company and Administrative
Agent, such other address as shall be designated by such Person in a written notice delivered to
the other parties hereto and (ii) as to each other party, such other address as shall be designated
by such party in a written notice delivered to Administrative Agent. Electronic mail and Internet
and intranet websites may be used to distribute routine communications, such as financial
statements and other information. Administrative Agent or Company may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.
Loan Documents and notices under the Loan Documents may be transmitted and/or signed by
telefacsimile and by signatures delivered in ‘PDF’ format by electronic mail. The effectiveness of
any such documents and signatures shall, subject to applicable law, have the same force and effect
as an original copy with manual signatures and shall be binding on Company, Administrative Agent
and Lenders. Administrative Agent may also require that any such documents and signature be
confirmed by a manually-signed copy thereof; provided, however, that the failure to
request or deliver any such manually-signed copy shall not affect the effectiveness of any
facsimile document or signature.
9.9 Survival of Representations, Warranties and Agreements.
A. All representations, warranties and agreements made herein shall survive the execution and
delivery of this Agreement and the making of the Loans hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the contrary, the
agreements of Company set forth in subsections 2.6, 9.2, 9.3, 9.4, 9.14, 9.16 and 9.17 and the
agreements of the Administrative Agent and the Lenders set forth in subsections 8.2C, 8.4, 9.3, 9.14,
9.17 and 9.18 shall survive the payment of the Loans and the termination of this Agreement.
69
9.10 Failure or Indulgence Not Waiver; Remedies Cumulative.
No failure or delay on the part of Administrative Agent or any Lender in the exercise of any
power, right or privilege hereunder or under any other Loan Document shall impair such power, right
or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude other or further exercise
thereof or of any other power, right or privilege. All rights and remedies existing under this
Agreement and the other Loan Documents are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
9.11 Marshalling; Payments Set Aside.
Neither Administrative Agent nor any Lender shall be under any obligation to marshal any
assets in favor of Company or any other party or against or in payment of any or all of the
Obligations. To the extent that Company makes a payment or payments to Administrative Agent or
Lenders (or to Administrative Agent for the benefit of Lenders), or Administrative Agent or Lenders
enforce any security interests or exercise their rights of setoff, and such payment or payments or
the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be repaid to a trustee,
receiver or any other party under any bankruptcy law, any other state or federal law, common law or
any equitable cause, then, to the extent of such recovery, the obligation or part thereof
originally intended to be satisfied, and all Liens, rights and remedies therefor or related
thereto, shall be revived and continued in full force and effect as if such payment or payments had
not been made or such enforcement or setoff had not occurred.
9.12 Severability.
In case any provision in or obligation under this Agreement or the Notes shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.
9.13 Obligations Several; Independent Nature of Lenders’ Rights; Damage
Waiver.
The obligations of Lenders hereunder are several and no Lender shall be responsible for the
obligations or Commitments of any other Lender hereunder. Nothing contained herein or in any other
Loan Document, and no action taken by Lenders pursuant hereto or thereto, shall be deemed to
constitute Lenders, or Lenders and Company, as a partnership, an association, a Joint Venture or
any other kind of entity. The amounts payable at any time hereunder to each Lender shall be a
separate and independent debt, and each Lender shall be entitled to protect and enforce its rights
arising out of this Agreement and it shall not be necessary for any other Lender to be joined as an
additional party in any proceeding for such purpose.
70
To the extent permitted by law, Company shall not assert, and hereby waives, any claim against
any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive
damages (as opposed to direct or actual damages) arising out of, in connection with or as a result
of this Agreement (including, without limitation, subsection 2.1C hereof), any other Loan Document,
any transaction contemplated by the Loan Documents, any Loan or the use of proceeds thereof. No
Indemnitee shall be liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications, electronic or other
information transmission systems in connection with the Loan Documents or the transactions
contemplated thereby.
9.14 Applicable Law.
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN ANY
SUCH LOAN DOCUMENT), AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL
BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES THAT WOULD REQUIRE APPLICATION OF ANOTHER
LAW.
9.15 Construction of Agreement; Nature of Relationship.
Each of the parties hereto acknowledges that (i) it has been represented by counsel in the
negotiation and documentation of the terms of this Agreement, (ii) it has had full and fair
opportunity to review and revise the terms of this Agreement, (iii) this Agreement has been drafted
jointly by all of the parties hereto, and (iv) neither Administrative Agent nor any Lender or other
Agent has any fiduciary relationship with or duty to Company arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between Administrative
Agent and Lenders, on one hand, and Company, on the other hand, in connection herewith or therewith
is solely that of debtor and creditor. Accordingly, each of the parties hereto acknowledges and
agrees that the terms of this Agreement shall not be construed against or in favor of another
party.
9.16 Consent to Jurisdiction and Service of Process.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS HEREUNDER AND THEREUNDER, MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX XX XXX XXXX. BY
EXECUTING AND DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES,
IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND VENUE OF
SUCH COURTS;
71
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH COURT MAY
BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO COMPANY AT ITS ADDRESS
PROVIDED IN ACCORDANCE WITH SUBSECTION 9.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (iii) ABOVE IS SUFFICIENT TO CONFER
PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH COURT, AND OTHERWISE
CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 9.16 RELATING TO JURISDICTION AND
VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE UNDER NEW YORK
GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
9.17 Waiver of Jury Trial.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE RIGHTS TO A JURY
TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN
TRANSACTION OR THE LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. Each party hereto
acknowledges that this waiver is a material inducement to enter into a business relationship, that
each has already relied on this waiver in entering into this Agreement, and that each will continue
to rely on this waiver in their related future dealings. Each party hereto further warrants and
represents that it has reviewed this waiver with its legal counsel and that it knowingly and
voluntarily waives its jury trial rights following consultation with legal counsel. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 9.17 AND EXECUTED BY EACH OF THE
PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR
MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR
AGREEMENTS RELATING
72
TO THE LOANS MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
9.18 Confidentiality.
Each Lender shall hold all non-public information obtained pursuant to the requirements of
this Agreement that has been identified in writing as confidential by Company in accordance with
such Lender’s customary procedures for handling confidential information of this nature, it being
understood and agreed by Company that in any event a Lender may make disclosures (a) to its and its
Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such information and instructed to keep such information
confidential), (b) to the extent requested by any Government Authority, (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other
party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject
to an agreement containing provisions substantially the same as those of this subsection 9.18, to
(i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or
Participant in, any of its rights or obligations under this Agreement or (ii) any direct or
indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s
or prospective counterparty’s professional advisor) to any credit derivative transaction relating
to obligations of Company, (g) with the consent of Company, (h) to the extent such information (i)
becomes publicly available other than as a result of a breach of this subsection 9.18 or (ii)
becomes available to Administrative Agent or any Lender on a nonconfidential basis from a source
other than Company so long as Administrative Agent or such Lender had no knowledge that such other
source provided such information in violation of any confidentiality agreement with Company or (i)
to the National Association of Insurance Commissioners or any other similar organization or any
nationally recognized rating agency that requires access to information about a Lender’s or its
Affiliates’ investment portfolio in connection with ratings issued with respect to such Lender or
its Affiliates and that no written or oral communications from counsel to Administrative Agent and
no information that is or is designated as privileged or as attorney work product may be disclosed
to any Person unless such Person is a Lender or a Participant hereunder; provided that,
unless specifically prohibited by applicable law or court order, each Lender shall notify Company
of any request by any Government Authority or representative thereof (other than any such request
in connection with any examination of the financial condition of such Lender by such Government
Authority) for disclosure of any such non-public information prior to disclosure of such
information; and provided, further that in no event shall any Lender be obligated
or required to return any materials furnished by Company or any of its Subsidiaries. In addition,
Administrative Agent and Lenders may disclose the existence of this Agreement and information about
this Agreement to market data collectors, similar service providers to the lending industry, and
service providers to Administrative Agent and Lenders, and Administrative Agent or any of its
Affiliates may place customary “tombstone” advertisements relating hereto in publications
(including publications circulated or otherwise made available in electronic form) of its choice at
its own expense.
73
9.19 Counterparts; Effectiveness.
This Agreement and any amendments, waivers, consents or supplements hereto or in connection
herewith may be executed in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an original, but all
such counterparts together shall constitute but one and the same instrument; signature pages may be
detached from multiple separate counterparts and attached to a single counterpart so that all
signature pages are physically attached to the same document. This Agreement shall become
effective upon the execution of a counterpart hereof by each of the parties hereto.
9.20 Intercreditor Agreement.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE EXERCISE OF ANY RIGHT OR REMEDY BY
FRANCSICO PARTNERS II, L.P. HEREUNDER ARE SUBJECT TO THE PROVISIONS OF THAT CERTAIN INTERCREDITOR
AGREEMENT, DATED ON OR PRIOR TO THE FUNDING DATE (THE “INTERCREDITOR AGREEMENT”), AMONG BANK OR
AMERICA, N.A. AND FRANCSICO PARTNERS II, L.P. IN THE EVENT OF ANY CONFLICT BETWEEN THE TERMS OF
THE INTERCREDITOR AGREEMENT AND THIS AGREEMENT, THE TERMS OF THE INTERCREDITOR AGREEMENT SHALL
GOVERN AND CONTROL.
[Remainder of page intentionally left blank.]
74
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.
COMPANY:
HYPERCOM CORPORATION | ||||
By: /s/ Xxxxxxxx Xxxxxxxxx | ||||
Title: CEO and President
|
Notice Address: 0000 Xxxx Xxxxxxxx Xxxx Xxxxxxx, Xxxxxxx 00000 Attention: General Counsel Fax: (000) 000-0000 |
||||
S-1
LENDER:
FRANCISCO PARTNERS II, L.P., individually and as Administrative Agent |
||
By: FRANCISCO PARTNERS XX XX, L.P., its General Partner |
||
By: FRANCISCO PARTNERS XX XX MANAGEMENT, LLC, its General Partner |
By: /s/ Xxxxx X. Xxxxxxx | ||||
Title: Managing Member | ||||
Notice Address: | ||||
Xxx Xxxxxxxxx Xxxxx | ||||
Xxxxxxxx X, Xxxxx 000 | ||||
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||
Attention: Xxx Xxxxxx | ||||
Fax: (000) 000-0000 |
S-2
DATED AS OF FEBRUARY 13, 2008
AMONG
HYPERCOM CORPORATION,
as Borrower,
as Borrower,
THE LENDERS LISTED HEREIN,
as Lenders,
as Lenders,
FRANCISCO PARTNERS II, L.P.,
as Administrative Agent
as Administrative Agent
TABLE OF CONTENTS
Page No. | ||||||||
Section 1. | DEFINITIONS |
1 | ||||||
1.1 | Certain Defined Terms |
1 | ||||||
1.2 | Accounting Terms; Utilization of GAAP for Purposes of Calculations
Under Agreement |
18 | ||||||
1.3 | Other Definitional Provisions and Rules of Construction |
18 | ||||||
Section 2. | AMOUNTS AND TERMS OF COMMITMENTS AND LOANS |
19 | ||||||
2.1 | Commitments; Making of Loans; the Register; Optional Notes |
19 | ||||||
2.2 | Interest on the Loans |
20 | ||||||
2.3 | Fees |
21 | ||||||
2.4 | Repayments, Prepayments, General Provisions Regarding Payments |
21 | ||||||
2.5 | Use of Proceeds |
23 | ||||||
2.6 | Increased Costs; Taxes; Capital Adequacy |
23 | ||||||
2.7 | Statement of Lenders; Obligation of Lenders to Mitigate |
28 | ||||||
2.8 | Replacement of a Lender |
28 | ||||||
Section 3. | CONDITIONS |
29 | ||||||
3.1 | Conditions to the Execution Date |
29 | ||||||
3.2 | Conditions to the Funding Date |
30 | ||||||
Section 4. | COMPANY’S REPRESENTATIONS AND WARRANTIES |
33 | ||||||
4.1 | Organization, Powers, Qualification, Good Standing, Business and
Subsidiaries |
33 | ||||||
4.2 | Authorization of Borrowing, etc |
34 | ||||||
4.3 | Financial Condition |
35 | ||||||
4.4 | No Material Adverse Change; No Restricted Junior Payments |
35 | ||||||
4.5 | Title to Properties; Liens; Real Property; Intellectual Property |
35 | ||||||
4.6 | Litigation; Adverse Facts |
36 | ||||||
4.7 | Payment of Taxes |
36 | ||||||
4.8 | Performance of Agreements |
37 | ||||||
4.9 | Governmental Regulation |
37 | ||||||
4.10 | Securities Activities |
37 | ||||||
4.11 | Employee Benefit Plans |
37 |
i
Page No. | ||||||||
4.12 | Certain Fees |
38 | ||||||
4.13 | Environmental Protection |
38 | ||||||
4.14 | Employee Matters |
39 | ||||||
4.15 | Solvency |
39 | ||||||
4.16 | Disclosure |
39 | ||||||
4.17 | Subordinated Indebtedness |
39 | ||||||
4.18 | Related Agreements |
40 | ||||||
Section 5. | COMPANY’S
AFFIRMATIVE COVENANTS |
40 | ||||||
5.1 | Financial Statements and Other Reports |
40 | ||||||
5.2 | Existence, etc |
43 | ||||||
5.3 | Payment of Taxes and Claims; Tax |
44 | ||||||
5.4 | Maintenance of Properties; Insurance |
44 | ||||||
5.5 | Inspection Rights; Lender Meeting |
44 | ||||||
5.6 | Compliance with Laws, etc |
45 | ||||||
5.7 | Environmental Matters |
45 | ||||||
Section 6. | COMPANY’S
NEGATIVE COVENANTS |
47 | ||||||
6.1 | Indebtedness |
47 | ||||||
6.2 | Liens and Related Matters |
48 | ||||||
6.3 | Investments; Acquisitions |
49 | ||||||
6.4 | Contingent Obligations |
50 | ||||||
6.5 | Restricted Junior Payments |
51 | ||||||
6.6 | Restriction on Fundamental Changes; Asset Sales |
52 | ||||||
6.7 | Transactions with Affiliates |
53 | ||||||
6.8 | Sales and LeaseBacks |
53 | ||||||
6.9 | Conduct of Business |
54 | ||||||
6.10 | Amendments or Waivers of Certain Agreements; Amendments of
Documents Relating to Subordinated Indebtedness |
54 | ||||||
6.11 | Fiscal Year |
54 | ||||||
Section 7. | EVENTS OF
DEFAULT |
54 | ||||||
7.1 | Failure to Make Payments When Due |
54 | ||||||
7.2 | Default in Other Agreements |
55 | ||||||
7.3 | Breach of Certain Covenants |
55 |
ii
Page No. | ||||||||
7.4 | Breach of Warranty |
55 | ||||||
7.5 | Other Defaults Under Loan Documents |
55 | ||||||
7.6 | Involuntary Bankruptcy; Appointment of Receiver, etc |
55 | ||||||
7.7 | Voluntary Bankruptcy; Appointment of Receiver, etc |
56 | ||||||
7.8 | Judgments and Attachments |
56 | ||||||
7.9 | Dissolution |
57 | ||||||
7.10 | Employee Benefit Plans |
57 | ||||||
7.11 | Change in Control |
57 | ||||||
7.12 | Invalidity of Loan Documents; Repudiation of Obligations |
57 | ||||||
7.13 | Failure to Consummate Acquisition |
57 | ||||||
Section 8. | ADMINISTRATIVE AGENT |
58 | ||||||
8.1 | Appointment of Administrative Agent |
58 | ||||||
8.2 | Powers and Duties; General Immunity |
58 | ||||||
8.3 | Independent Investigation by Lenders; No Responsibility For
Appraisal of Creditworthiness |
60 | ||||||
8.4 | Right to Indemnity |
60 | ||||||
8.5 | Resignation of Administrative Agent; Successor Administrative Agent |
61 | ||||||
8.6 | Administrative Agent May File Proofs of Claim |
61 | ||||||
Section 9. | MISCELLANEOUS |
62 | ||||||
9.1 | Successors and Assigns; Assignments and Participations in Loans |
62 | ||||||
9.2 | Expenses |
65 | ||||||
9.3 | Indemnity |
66 | ||||||
9.4 | SetOff |
66 | ||||||
9.5 | Ratable Sharing |
67 | ||||||
9.6 | Amendments and Waivers |
68 | ||||||
9.7 | Independence of Covenants |
69 | ||||||
9.8 | Notices; Effectiveness of Signatures |
69 | ||||||
9.9 | Survival of Representations, Warranties and Agreements |
69 | ||||||
9.10 | Failure or Indulgence Not Waiver; Remedies Cumulative |
70 | ||||||
9.11 | Marshalling; Payments Set Aside |
70 | ||||||
9.12 | Severability |
70 |
iii
Page No. | ||||||||
9.13 | Obligations Several; Independent Nature of Lenders’ Rights; Damage
Waiver |
70 | ||||||
9.14 | Applicable Law |
71 | ||||||
9.15 | Construction of Agreement; Nature of Relationship |
71 | ||||||
9.16 | Consent to Jurisdiction and Service of Process |
71 | ||||||
9.17 | Waiver of Jury Trial |
72 | ||||||
9.18 | Confidentiality |
73 | ||||||
9.19 | Counterparts; Effectiveness |
74 | ||||||
9.20 | Intercreditor Agreement |
74 | ||||||
Signature pages | S-1 |
iv
EXHIBITS
I
|
FORM OF NOTICE OF BORROWING | |
II
|
FORM OF NOTE | |
III
|
FORM OF OPINION OF COMPANY COUNSEL | |
IV
|
FORM OF ASSIGNMENT AGREEMENT | |
V
|
FORM OF SOLVENCY CERTIFICATE | |
VI
|
FORM OF ACQUISITION AGREEMENT | |
VII
|
FORM OF REGISTRATION RIGHTS AGREEMENT | |
VIII
|
FORM OF WARRANT |
v
SCHEDULES
2.1
|
LENDERS’ COMMITMENTS AND PRO RATA SHARES | |
3.1
|
CORPORATE AND CAPITAL STRUCTURE; OWNERSHIP; MANAGEMENT | |
4.1
|
SUBSIDIARIES OF COMPANY | |
4.5
|
INTELLECTUAL PROPERTY | |
4.5B
|
INTELLECTUAL PROPERTYRELATED CLAIMS | |
4.6
|
LITIGATION | |
6.1
|
CERTAIN EXISTING INDEBTEDNESS | |
6.2
|
CERTAIN EXISTING LIENS | |
6.3
|
CERTAIN EXISTING INVESTMENTS |
vi