SECURITIES PURCHASE AGREEMENT dated as of February 8, 2008, among TRM CORPORATION, THE LENDERS PARTY HERETO and LAMPE, CONWAY & CO., LLC as Administrative Agent
Exhibit 10.11(a)
Execution Version
SECURITIES PURCHASE AGREEMENT
dated as of
dated as of
February 8, 2008,
among
TRM CORPORATION,
THE LENDERS PARTY HERETO
and
▇▇▇▇▇, ▇▇▇▇▇▇ & CO., LLC
as Administrative Agent
SECURITIES PURCHASE AGREEMENT dated as of February 8, 2008, among TRM CORPORATION, an Oregon
corporation (the “Borrower”), the Lenders (as defined in Article I), and ▇▇▇▇▇, ▇▇▇▇▇▇ & CO., LLC,
as administrative agent (in such capacity, the “Administrative Agent”) for the Lenders.
PRELIMINARY STATEMENT
The Borrower owes money to Notemachine Limited (“Notemachine”) pursuant to that certain
Settlement Agreement, dated as of November 20, 2007, by and between Notemachine and the Borrower
(the “Settlement Agreement”).
In connection with the Borrower’s obligations under the Settlement Agreement, the Borrower has
requested the Lenders to extend credit in the form of Loans on the Closing Date, in an aggregate
principal amount of $1,000,000. The proceeds of the Loans are to be used solely (a) to pay amounts
owed to Notemachine under the Settlement Agreement, (b) for working capital of the Loan Parties and
(c) to pay fees and expenses incurred in connection with the foregoing and the Loans.
Simultaneously with entering into this Agreement, the Borrower and the Lenders are entering
into that certain Registration Rights Agreement, dated as of the date hereof (the “Registration
Rights Agreement”) attached as Exhibit F hereto, relating to the Warrant Shares.
The Lenders are willing to extend such credit to the Borrower on the terms and subject to the
conditions set forth herein. Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:
“Acquisition” means the Borrower’s acquisition of all or substantially all of the assets of
LJR Consulting Corp., d/b/a Access to Money.
“Acquisition Agreement” means a definitive asset purchase agreement, merger agreement or other
agreement for the Acquisition (including all schedules, exhibits, amendments, supplements and
modifications thereto) and any other documents ancillary thereto, in each case, in form and
substance acceptable to the Administrative Agent.
“Adjusted LIBO Rate” shall mean, with respect to any Interest Period, an interest rate per
annum equal to the product of (a) the LIBO Rate in effect for such Interest Period and
(b) Statutory Reserves.
“Administrative Agent” shall have the meaning assigned to such term in the Preamble.
“Administrative Questionnaire” shall mean an Administrative Questionnaire in the form of
Exhibit A, or such other form as may be supplied from time to time by the Administrative Agent.
“Affiliate” shall mean, when used with respect to a specified person, another person that
directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is
under common Control with the person specified; provided, however, that, for purposes of
Section 6.07, the term “Affiliate” shall also include any person that directly or indirectly
owns 5% or more of any class of Equity Interests of the person specified or that is an officer or
director of the person specified.
“Agreement” shall mean this Securities Purchase Agreement.
“Applicable Cash Percentage” shall mean, for any day, with respect to any Loan, 5.00% per
annum.
“Applicable PIK Percentage” shall mean, for any day, with respect to any Loan, 15.00% per
annum.
“Asset Sale” shall mean the sale, transfer or other disposition (by way of acquisition,
casualty, condemnation or otherwise) by the Borrower or any Subsidiary to any person other than the
Borrower or any Subsidiary Guarantor of (a) any Equity Interests of the Borrower or any Subsidiary
(other than directors’ qualifying shares) or (b) any other assets of the Borrower or any Subsidiary
(other than (i) inventory, damaged, obsolete or worn out assets, scrap and Permitted Investments,
in each case disposed of in the ordinary course of business, (ii) dispositions between or among
Foreign Subsidiaries and (iii) any
sale, transfer or other disposition (including casualty losses
and condemnations) or series of related sales, transfers or other dispositions having a value not
in excess of $100,000).
“Assignment and Acceptance” shall mean an assignment and acceptance entered into by a Lender
and an assignee, and accepted by the Administrative Agent, in the form of Exhibit B or such other
form as shall be approved by the Administrative Agent.
“Board” shall mean the Board of Governors of the Federal Reserve System of the United States
of America.
“Borrower” shall have the meaning assigned to such term in the Preamble.
“Business Day” shall mean any day other than a Saturday, Sunday or day on which banks in New
York City are authorized or required by law to close and any day on which banks are not open for
dealings in dollar deposits in the London interbank market.
“Capital Lease Obligations” of any person shall mean the obligations of such person to pay
rent or other amounts under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such person under GAAP, and the amount of
such obligations shall be the capitalized amount thereof determined in accordance with GAAP.
“Change in Control” shall mean the occurrence of any of the following on or after the Closing
Date:
(a) the direct or indirect sale, lease, transfer conveyance or other disposition, in one or a
series of related transactions, of all or substantially all of the assets of the Borrower and its
Subsidiaries, taken as a whole;
(b) any “person” or “group” (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange
Act) becomes the “beneficial owner” (within the meaning of Rule 13d-3 of the SEC under the Exchange
Act) of more than 40% of the Equity Interests of the Borrower having the right to vote for the
election of members of the Board of Directors thereof;
(c) individuals who on the Closing Date constitute the Board of Directors of the Borrower
(together with any new directors whose appointment by the Board of Directors of the Borrower or
whose nomination by the Board of Directors of the Borrower for election by the Borrower’s
stockholders was approved by a vote of at least a majority of the members of the Board of Directors
then in office who either were members of the Board of Directors on the Closing Date or whose
appointment or nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the board of directors then in office; and
(d) any change in control (or similar event, however denominated) with respect to the Borrower
or any other Subsidiary shall occur under and as defined in any indenture or agreement in respect
of Material Indebtedness to which the Borrower or any other Subsidiary is a party.
“Change in Law” shall mean (a) the adoption of any law, rule or regulation after the date of
this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the date of this Agreement or
(c) compliance by any Lender (or, for purposes of Section 2.09, by any lending office of such
Lender or by such Lender’s holding company, if any) with any request, guideline or directive
(whether or not having the force of law) of any Governmental Authority made or issued after the
date of this Agreement.
“Charges” shall have the meaning assigned to such term in Section 10.09.
“Closing Date” shall mean February 8, 2008.
“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.
“Commitment” shall mean, with respect to each Lender, the commitment of such Lender to make
Loans hereunder as set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender assumed its Commitment, as applicable, as the same may be (a) reduced from time
to time pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 10.04. The initial aggregate amount of the
Lenders’ Commitments is $1,000,000.
“Common Stock” shall have the meaning assigned to such term in Section 2.16.
“Company Option Plan” shall have the meaning assigned to such term in Section 3.29.
“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 acceptance, letter of credit or surety
bond or similar facility issued for the account of that person or as to which that person is
otherwise liable for reimbursement of drawings, or (iii) under Hedging Agreements. Contingent
Obligations shall include (a) the direct or indirect Guarantee, 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 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 Hedging Agreement shall be the amount determined in respect thereof as of the end of
the then most recently ended fiscal quarter of such person, based on the assumption that such
Hedging Agreement had terminated at the end of such fiscal quarter, and in making such
determination, if any agreement relating to such Hedging Agreement provides for the netting of
amounts payable by and to such person thereunder or if any such agreement provides for the
simultaneous payment of amounts by and to such person, then in each such case, the amount of such
obligation shall be the net amount so determined. The amount of any other 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.
“Control” shall mean the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a person, whether through the ownership of voting
securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have
meanings correlative thereto.
“Credit Facilities” shall mean the loan facilities provided for by this Agreement.
“Default” shall mean any event or condition which upon notice, lapse of time or both would
constitute an Event of Default.
“Disqualified Stock” shall mean any Equity Interest that, by its terms (or by the terms of any
security into which it is convertible or for which it is exchangeable), or upon the happening of
any event, (a) matures (excluding any maturity as the result of an optional redemption by the
issuer thereof) or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise,
or is redeemable at the option of the holder thereof, in whole or in part, or requires the payment
of any cash dividend or any other scheduled payment constituting a return of capital, in each case
at any time on or prior to the first anniversary of the Stated Maturity, or (b) is convertible into
or exchangeable (unless at the sole option of the issuer thereof) for (i) debt securities or
(ii) any Equity Interest referred to in clause (a) above, in each case at any time prior to the
first anniversary of the Stated Maturity.
“dollars” or “$” shall mean lawful money of the United States of America.
“Domestic Subsidiary” shall mean any Subsidiary incorporated or organized under the laws of
the United States of America, any State thereof or the District of Columbia.
“Dormant Subsidiary” means each of S-3 Corporation, a Delaware corporation, TRM Services
Limited, a company organized under the laws of England and Wales, TRM (Canada) Corporation, a
corporation organized under the laws of Canada and registered as an extra provincial company under
the laws of British Columbia (with additional extra provincial registrations in Quebec and
Ontario), or FPC (France) Ltd., an Oregon corporation (in each case, as to which such designation
has not been withdrawn by the Borrower in a written notice to the Administrative Agent or deemed
withdrawn pursuant to Section 6.14).
“Employee” means any current officer, director, consultant, employee, independent contractor,
agent and other person, who renders services to the Borrower or any of its Subsidiaries.
“Environmental Laws” shall mean all former, current and future Federal, state, local and
foreign laws (including common law), treaties, regulations, rules, ordinances, codes, decrees,
judgments, directives, orders (including consent orders), and agreements in each case, relating to
protection of the environment, natural resources, human health and safety or the
presence, Release of, or exposure to, Hazardous Materials, or the generation, manufacture,
processing, distribution, use, treatment, storage, transport, recycling or handling of, or the
arrangement for such activities with respect to, Hazardous Materials.
“Environmental Liability” shall mean all liabilities, obligations, damages, losses, claims,
actions, suits, judgments, orders, fines, penalties, fees, expenses and costs (including
administrative oversight costs, natural resource damages and remediation costs), whether contingent
or otherwise, arising out of or relating to (a) compliance or non-compliance with any Environmental
Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release of any Hazardous
Materials or (e) any contract, agreement or other consensual arrangement pursuant to which
liability is assumed or imposed with respect to any of the foregoing.
“Equity Interests” shall mean shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a trust or other equity interests
in any person, and any option, warrant or other right entitling the holder thereof to purchase or
otherwise acquire any such equity interest.
“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as the same may be
amended from time to time.
“ERISA Affiliate” shall mean any trade or business (whether or not incorporated) that,
together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code, or solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a
single employer under Section 414 of the Code.
“ERISA Event” shall mean (a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder, with respect to a Plan (other than an event for which the 30-day
notice period is waived), (b) the existence with respect to any Plan of an “accumulated funding
deficiency” (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived,
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan, (d) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan or the withdrawal or partial withdrawal of the Borrower or any of its
ERISA Affiliates from any Plan or Multiemployer Plan, (e) the receipt by the Borrower or any of its
ERISA Affiliates from the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan, (f) the adoption of any
amendment to a Plan that would require the provision of security pursuant to Section 401(a)(29) of
the Code or Section 307 of ERISA, (g) the receipt by the Borrower or any of its ERISA Affiliates of
any notice, or the receipt by any Multiemployer Plan from the Borrower or any of its ERISA
Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that
a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning
of Title IV of ERISA, (h) the occurrence of a “prohibited transaction” with respect to which the
Borrower or any of the Subsidiaries is a “disqualified person” (within the meaning of Section 4975
of the Code) or with respect to which the Borrower or any such Subsidiary could otherwise be liable
or (i) any other event or condition with respect to a Plan or Multiemployer Plan that could result
in liability of the Borrower or any Subsidiary.
“Event of Default” shall have the meaning assigned to such term in Article VIII.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended.
“Excluded Taxes” shall mean, 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 the Borrower hereunder,
(a) income or franchise taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is organized or in which its
principal office is located or, in the case of any Lender, in which its applicable lending office
is located, (b) any branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above and (c) in the case of a Foreign
Lender, any withholding tax that is imposed on amounts payable to such Foreign Lender at the time
such Foreign Lender becomes a party to this Agreement (or designates a new lending office) or is
attributable to such Foreign Lender’s failure to comply with Section 2.14(a)(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 the Borrower with
respect to such withholding tax pursuant to Section 2.14(a).
“Expense Reimbursement Letter” shall mean that certain letter agreement re reimbursement of
fees and expenses, dated January 29, 2008, between the Borrower and the Administrative Agent.
“Federal Funds Effective Rate” shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal
funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a Business Day, the average of the
quotations for the day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
“Financial Officer” of any person shall mean the chief financial officer, principal accounting
officer, treasurer or controller of such person.
“Financing Documents” shall mean this Agreement, the Registration Rights Agreement, the
Subsidiary Guaranty, the Expense Reimbursement Letter, the promissory notes executed and delivered
pursuant to Section 2.03(a)(iii), and the Warrants executed and delivered pursuant to Section 2.16.
“Foreign Lender” shall mean any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is located. For purposes of this definition, the United
States of America, each State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
“Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.
“GAAP” shall mean United States generally accepted accounting principles applied on a
consistent basis.
“Governmental Authority” shall mean any Federal, state, local or foreign court or governmental
agency, authority, instrumentality, regulatory body, board or commission.
“Granting Lender” shall have the meaning assigned to such term in Section 10.04(i).
“GSO” shall mean, as the context requires, GSO Origination Funding Partners, LP, the other
Lenders from time to time party to the GSO Loan Documents and ▇▇▇▇▇ Fargo Foothill, Inc.
“GSO Loan Documents” shall mean the Amended and Restated Second Lien Loan Agreement, dated as
of November 20, 2006, the Borrower, TRM ATM Corporation and TRM Copy Centers (USA) Corporation, as
Borrower, the Subsidiaries of the Borrowers identified therein, as the Guarantors, ▇▇▇▇▇ Fargo
Foothill, Inc., as Administrative Agent, GSO Origination Funding Partners, LP, a Delaware limited
partnership, and the other Lenders from time to time party thereto (as the same may be amended,
supplemented, amended and restated or otherwise modified from time to time and including all
schedules, and supplements thereto) and any other documents ancillary thereto (as the same may be
amended, supplemented, amended and restated or otherwise modified from time to time).
“Guarantee” of or by any person shall mean any obligation, contingent or otherwise, of such
person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other
obligation of any other person (the “primary obligor”) in any manner, whether directly or
indirectly, and including any obligation of such person, direct or indirect, (a) to purchase or pay
(or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation
or to purchase (or to advance or supply funds for the purchase of) any security for the payment of
such Indebtedness or other obligation, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation of the payment of
such Indebtedness or other obligation or (c) to maintain working capital, equity capital or any
other financial statement condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation; provided, however, that the term “Guarantee”
shall not include endorsements for collection or deposit in the ordinary course of business.
“Hazardous Materials” shall mean (a) any petroleum products or by products and all other
hydrocarbons, coal ash, radon gas, asbestos, urea formaldehyde foam insulation, polychlorinated
biphenyls, chlorofluorocarbons and all other ozone-depleting substances and (b) any chemical,
material, substance or waste that is prohibited, limited or regulated by or pursuant to any
Environmental Law.
“Hedging Agreement” shall mean any interest rate protection agreement, foreign currency
exchange agreement, commodity price protection agreement or other interest or currency exchange
rate or commodity price hedging arrangement.
“Indebtedness” of any person shall mean, without duplication, (a) all obligations of such
person for borrowed money or with respect to deposits or advances of any kind, (b) all obligations
of such person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of
such person upon which interest charges are customarily paid, (d) all obligations of such person
under conditional sale or other title retention agreements relating to property or assets purchased
by such person, (e) all obligations of such person issued or assumed as the deferred purchase price
of property or services (excluding trade accounts payable and accrued obligations incurred in the
ordinary course of business), (f) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien on
property owned or acquired by such person, whether or not the obligations secured thereby have been
assumed, (g) all Guarantees by such person of Indebtedness of others, (h) all Capital Lease
Obligations of such person, (i) all obligations of such person as an account
party in respect of letters of credit and (j) all obligations of such person in respect of
bankers’ acceptances. The Indebtedness of any person shall include the Indebtedness of any
partnership in which such person is a general partner.
“Indemnified Taxes” shall mean Taxes other than Excluded Taxes.
“Indemnitee” shall have the meaning assigned to such term in Section 10.05(a)(i).
“Information” shall have the meaning assigned to such term in Section 10.16.
“Intellectual Property” shall mean (a) patents, patent applications, patent disclosures and
inventions, (b) trademarks, service marks, trade names, logos and corporate names and registrations
and applications for registration thereof, (c) copyrights (registered and unregistered) and
copyrightable works and registrations and applications for registration thereof, (d) mask works and
registrations and applications for registration thereof, (e) computer software, data, databases and
documentation thereof, (f) trade secrets and other confidential information (including, without
limitation, ideas, formulas, compositions, inventions (whether patentable or unpatentable and
whether or not reduced to practice), know-how, manufacturing and production processes and
techniques, research and development information, drawings, specifications, designs, plans,
proposals, technical data, financial and marketing plans and customer and supplier lists and
information) and (g) other intellectual property rights.
“Interest Payment Date” means the 8th day of each month, commencing May 8, 2008,
provided if any such day is not a Business Day, such Interest Payment Date shall be
extended to the next succeeding Business Day and interest shall accrue for each day of such
extension and (b) the date of any payment of principal in accordance with this Agreement.
“Interest Period” means a period commencing on an Interest Payment Date and ending on the next
succeeding Interest Payment Date determined under clause (a) of the definition thereof;
provided that (x) the first Interest Period for any Loan shall commence on the Closing Date
and end on the next succeeding Interest Payment Date, and (y) no Interest Period with respect to
any portion of the Loans shall extend beyond the Maturity Date. Interest shall accrue from and
including the first day of an Interest Period to but excluding the last day of such Interest
Period.
“Lenders” shall mean (a) the persons listed on Schedule 2.01 (other than any such person that
has ceased to be a party hereto pursuant to an Assignment and Acceptance) and (b) any person that
has become a party hereto pursuant to an Assignment and Acceptance.
“LIBO Rate” means, with respect to any Interest Period, the rate appearing on Reuters Page
LIBOR01 (or on any successor or substitute page or service providing rate quotations comparable to
those currently provided on such page, as determined by the Administrative Agent from time to time
for purposes of providing quotations of interest rates applicable to dollar deposits in the London
interbank market) at approximately 11:00 a.m., New York time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a three-month maturity
(rounded upward to the nearest 1/16 of one percent). In the event that such rate is not available
at such time for any reason, then the “LIBO Rate” with respect to such Interest Period shall be the
three-month London Interbank Offered Rate (rounded upward to the nearest 1/16 of one percent) as
published in The Wall Street Journal on such date of determination, and if this later index ceases
to exist or is no longer published or announced, then the term “LIBO Rate” means the Prime Rate
(rounded upward to the nearest 1/16 of one percent) as published in The Wall Street Journal on such
date of determination. The LIBO Rate shall be determined on any date of determination by the
Administrative Agent or, if no Administrative Agent then exists, by the Lender of the Loan on which
interest is owed.
“Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
encumbrance, charge or security interest in or on such asset, (b) the interest of a vendor or a
lessor under any conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the foregoing) relating to
such asset and (c) in the case of securities, any purchase option, call or similar right of a third
party with respect to such securities.
“Loan Parties” shall mean the Borrower and the Subsidiary Guarantors.
“Loans” shall mean the loans made by the Lenders to the applicable Borrower pursuant to
clause (a) of Section 2.02 and any PIK interest paid hereunder.
“Margin Stock” shall have the meaning assigned to such term in Regulation U.
“Material Adverse Change” shall mean a Material Adverse Effect or the existence of any action,
suit, investigation, litigation or proceeding pending or threatened that (i) would reasonably be
expected to (A) have a material adverse effect on the
assets, liabilities, customer or supplier relationships, financial condition, operations or
results of operations of the Borrower and its Subsidiaries taken as a whole, (B) materially
adversely affect the ability of the Borrower and its Subsidiaries to perform its obligations under
the Financing Documents or (ii) would reasonably be expected to materially adversely affect the
Transactions or prevent the anticipated use of the proceeds of the Loans.
“Material Adverse Effect” shall mean a material adverse change in the assets, liabilities,
customer or supplier relationships, financial condition, operations or results of operations of the
Borrower and its Subsidiaries, provided, however, in each case, not including any change that
(A) is generally applicable to the U.S. economy, (B) is generally applicable to automatic teller
machine service and product providers or (C) relates to changes in generally accepted accounting
principles generally applicable to companies serving as Internet protocol data and voice providers
occurring after the date of the Acquisition Agreement
“Material Indebtedness” shall mean Indebtedness (other than the Loans), or obligations in
respect of one or more Hedging Agreements, of any one or more of the Borrower or any Subsidiary in
an aggregate principal amount exceeding $250,000. For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate amount (giving effect
to any netting agreements) that the Borrower or such Subsidiary would be required to pay if such
Hedging Agreement were terminated at such time.
“Maturity Date” shall mean the earliest of (i) consummation of the Acquisition, (ii) the date
that the Borrower obtains proceeds from a debt issuance in an amount equal to or greater than the
amount of Indebtedness outstanding under the GSO Loan Documents (plus any accrued and unpaid
interest thereon) plus the principal amount of the Loans then outstanding (plus any accrued and
unpaid interest thereon), (iii) the date immediately following the Borrower’s repayment in full in
cash of the Indebtedness of the Borrower and certain of its Subsidiaries under the GSO Loan
Documents or (iv) Stated Maturity.
“Maximum Rate” shall have the meaning assigned to such term in Section 10.09.
“Moody’s” shall mean ▇▇▇▇▇’▇ Investors Service, Inc., or any successor thereto.
“Multiemployer Plan” shall mean a multiemployer plan as defined in Section 4001(a)(3) of
ERISA.
“Notemachine” shall have the meaning assigned to such term in the preliminary statement to
this Agreement.
“Obligations” shall mean all obligations of every nature of each Loan Party from time to time
owed to the Administrative Agent, the Lenders or any of them under the Financing Documents, whether
for principal, interest, fees, expenses, indemnification or otherwise.
“OFAC” shall have the meaning assigned to such term in Section 3.24(a)(iii).
“Organizational Documents” means with respect to any person, its charter, certificate or
articles of incorporation, bylaws, articles of organization, operating agreement, members
agreement, partnership agreement, voting trust, or similar agreement or instrument governing the
formation or operation of such person.
“Other Taxes” shall mean any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made under any
Financing Document or from the execution, delivery or enforcement of, or otherwise with respect to,
any Financing Document.
“PBGC” shall mean the Pension Benefit Guaranty Corporation referred to and defined in ERISA.
“Permitted Investments” shall mean:
(a) direct obligations of, or obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by any agency thereof to the extent
such obligations are backed by the full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days from the date of acquisition
thereof and having, at such date of acquisition, the highest credit rating obtainable from S&P or
from Moody’s;
(c) investments in certificates of deposit, banker’s acceptances and time deposits maturing
within one year from the date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by any
domestic office of any commercial bank organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and undivided profits of not
less than $500,000,000;
(d) fully collateralized repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial institution satisfying
the criteria of clause (c) above;
(e) investments in “money market funds” within the meaning of Rule 2a-7 of the Investment
Company Act of 1940, as amended, substantially all of whose assets are invested in investments of
the type described in clauses (a) through (d) above; and
(f) investments in so-called “auction rate” securities rated AAA or higher by S&P or Aaa or
higher by Moody’s and which have a reset date not more than 90 days from the date of acquisition
thereof.
“person” shall mean any natural person, corporation, business trust, joint venture,
association, company, limited liability company, partnership, Governmental Authority or other
entity.
“PIK” shall have the meaning assigned to such term in Section 2.04(b).
“Plan” shall mean any employee pension benefit plan (other than a Multiemployer Plan) subject
to the provisions of Title IV of ERISA or Section 412 of the Code or Section 307 of ERISA, and in
respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA.
“Qualified Capital Stock” of any person shall mean any Equity Interest of such person that is
not Disqualified Stock.
“Register” shall have the meaning assigned to such term in Section 10.04(a)(iii).
“Registration Rights Agreement” shall have the meaning assigned to such term in the
preliminary statement to this Agreement.
“Regulation T” shall mean Regulation T of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation U” shall mean Regulation U of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Regulation X” shall mean Regulation X of the Board as from time to time in effect and all
official rulings and interpretations thereunder or thereof.
“Related Fund” shall mean, with respect to any Lender that is a fund or commingled investment
vehicle that invests in bank loans, any other fund that invests in bank loans and is managed or
advised by the same investment advisor as such Lender or by an Affiliate of such investment
advisor.
“Related Parties” shall mean, with respect to any specified person, such person’s Affiliates
and the respective directors, trustees, officers, employees, agents and advisors of such person and
such person’s Affiliates.
“Release” shall mean any release, spill, emission, leaking, dumping, injection, pouring,
deposit, disposal, discharge, dispersal, leaching or migration into or through the environment or
within or upon any building, structure, facility or fixture.
“Required Lenders” shall mean, at any time, Lenders having Loans and Commitments representing
more than 50% of the sum of all Loans and Commitments at such time.
“Responsible Officer” of any person shall mean any executive officer or Financial Officer of
such person and any other officer or similar official thereof responsible for the administration of
the obligations of such person in respect of this Agreement.
“Restricted Indebtedness” shall mean Indebtedness of the Borrower or any Subsidiary, the
payment, prepayment, repurchase or defeasance of which is restricted under Section 6.09(a)(i).
“Restricted Payment” shall mean any dividend or other distribution (whether in cash,
securities or other property) with respect to any Equity Interests in the Borrower or any
Subsidiary, or any payment (whether in cash, securities or other property), including any sinking
fund or similar deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any Equity Interests in the Borrower or any Subsidiary.
“S&P” shall mean Standard & Poor’s Ratings Service, or any successor thereto.
“SEC” shall mean the United States Securities and Exchange Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended, and all of the rules and
regulations promulgated thereunder.
“Settlement Agreement” shall have the meaning assigned to such term in the preliminary
statement to this Agreement.
“Solvent” shall have the meaning assigned to such term in Section 3.21.
“SPC” shall have the meaning assigned to such term in Section 10.04(a)(viii).
“Stated Maturity” shall mean December 6, 2012.
“Statutory Reserves” shall mean a fraction (expressed as a decimal), the numerator of which is
the number one and the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board and any other banking authority, domestic or foreign, to
which the Administrative Agent or any Lender (including any branch, Affiliate or other fronting
office making or holding a Loan) is subject for Eurocurrency Liabilities (as defined in
Regulation D of the Board). Loans bearing interest at a rate determined by reference to the
Adjusted LIBO Rate shall be deemed to constitute Eurocurrency Liabilities as defined in
Regulation D of the Board and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to time to any Lender
under such Regulation D. Statutory Reserves shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
“Subsidiary” shall mean, with respect to any person (herein referred to as the “parent”), any
corporation, partnership, limited liability company, association or other business entity (a) of
which securities or other ownership interests representing more than 50% of the equity or more than
50% of the ordinary voting power or more than 50% of the general partnership interests are, at the
time any determination is being made, owned, Controlled or held, or (b) that is, at the time any
determination is made, otherwise Controlled, by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent. Unless the context otherwise
clearly requires, any reference to a “Subsidiary” is a reference to a Subsidiary of the Borrower
after giving effect to the Transactions.
“Subsidiary Guarantor” shall mean each Subsidiary listed on Schedule 1.01(a), and each other
Subsidiary that otherwise provides a guarantee in respect of the Obligations, in each case,
pursuant to the Subsidiary Guaranty.
“Subsidiary Guaranty” means the Subsidiary Guaranty in substantially the form attached hereto
as Exhibit G.
“Synthetic Purchase Agreement” shall mean any swap, derivative or other agreement or
combination of agreements pursuant to which the Borrower or any Subsidiary is or may become
obligated to make (a) any payment in connection with a purchase by any third party from a person
other than the Borrower or any Subsidiary of any Equity Interest or Restricted Indebtedness or
(b) any payment (other than on account of a permitted purchase by it of any Equity Interest or
Restricted Indebtedness) the amount of which is determined by reference to the price or value at
any time of any Equity Interest or Restricted Indebtedness; provided that no phantom stock or
similar plan providing for payments only to current or former directors, officers or employees of
the Borrower or the Subsidiaries (or to their heirs or estates) shall be deemed to be a Synthetic
Purchase Agreement.
“Taxes” shall mean any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Terrorism Order” shall have the meaning assigned to such term in Section 3.24.
“Transactions” shall mean, collectively, the transactions to occur on or about the Closing
Date pursuant to the Financing Documents, including (a) the execution and delivery of the Financing
Documents and the borrowings hereunder;
(b) the payment of certain amounts owed to Notemachine in accordance with the Settlement
Agreement; (c) the issuance of the Warrants as set forth herein and (d) the payment of related fees
and expenses.
“TRM SEC Documents” shall mean the Borrower’s (a) Form 10-Q for the quarterly period ended
September 30, 2007 and filed with the SEC on November 8, 2007, (b) Form 8-K filed with the SEC on
December 21, 2007 and (c) Form 8-K filed with the SEC on November 26, 2007.
“USA PATRIOT Act” shall mean The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).
“Warrants” means one or more warrants to purchase Common Stock, dated as of the date hereof,
issued by the Borrower to the Lenders, in substantially the form attached hereto as
Exhibit D.
“Warrant Shares” shall have the meaning assigned to such term in Section 2.16.
“wholly owned Subsidiary” of any person shall mean a subsidiary of such person of which
securities (except for directors’ qualifying shares) or other ownership interests representing 100%
of the Equity Interests are, at the time any determination is being made, owned, Controlled or held
by such person or one or more wholly owned Subsidiaries of such person or by such person and one or
more wholly owned Subsidiaries of such person.
“Withdrawal Liability” shall mean liability to a Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Terms Generally. The definitions in Section 1.01 shall apply equally to both
the singular and plural forms of the terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter forms. The words “include”,
“includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The
word “will” shall be construed to have the same meaning and effect as the word “shall”; and the
words “asset” and “property” shall be construed as having the same meaning and effect and to refer
to any and all tangible and intangible assets and properties, including cash, securities, accounts
and contract rights. All references herein to Articles, Sections, Exhibits and Schedules shall be
deemed references to Articles and Sections of, and Exhibits and Schedules to, this Agreement unless
the context shall otherwise require. Except as otherwise expressly provided herein, (a) any
reference in this Agreement to any Financing Document shall mean such document as amended,
restated, supplemented or otherwise modified from time to time and (b) all terms of an accounting
or financial nature shall be construed in accordance with GAAP, as in effect from time to time;
provided, however, that if the Borrower notifies the Administrative Agent that the Borrower wishes
to amend any covenant in Article VI or any related definition to eliminate the effect of any change
in GAAP occurring after the date of this Agreement on the operation of such covenant (or if the
Administrative Agent notifies the Borrower that the Required Lenders wish to amend Article VI or
any related definition for such purpose), then the Borrower’s compliance with such covenant shall
be determined on the basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Borrower and the Required Lenders.
SECTION 1.03. 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 as an exception to, or would otherwise be within the limitations
of, another covenant shall not avoid the occurrence of an Event of Default or Default if such
action is taken or condition exists.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and conditions and relying upon the
representations and warranties herein set forth, each Lender agrees, severally and not jointly, to
make a Loan to the Borrower on the Closing Date in a principal amount not to exceed its Commitment
at a purchase price of 100.0% of par. Amounts paid or prepaid in respect of Loans may not be
reborrowed.
SECTION 2.02. Loans. (a) The failure of any Lender to make any Loan shall not in itself
relieve any other Lender of its obligation to lend hereunder (it being understood, however, that no
Lender shall be responsible for the failure of any other Lender to make any Loan required to be
made by such other Lender).
(i) Each Lender shall make the Loan to be made by it hereunder on the Closing Date by
wire transfer of immediately available funds to such account in New York City as the
Borrower may designate not later than 1:00 p.m., New York City time.
SECTION 2.03. Evidence of Debt; Repayment of Loans. (a) The Borrower hereby unconditionally
promises to pay to each Lender the principal amount of each Loan of such Lender as provided in
Section 2.07.
(i) Each Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrower to such Lender resulting from the Loan
made by such Lender, including the amounts of principal and cash or PIK interest payable and
paid to such Lender from time to time under this Agreement.
(ii) The entries made in the accounts maintained pursuant to paragraph (b) above shall
be prima facie evidence of the existence and amounts of the obligations therein recorded;
provided, however, that the failure of any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligations of the Borrower to repay the Loans in
accordance with their terms.
(iii) On the Closing Date, the Borrower shall execute and deliver to each Lender a
promissory note payable to such Lender and its registered assigns in substantially the form
attached hereto as Exhibit C.
SECTION 2.04. Interest on Loans. (a) Subject to the provisions of Section 2.05, the Loans
shall bear interest (computed on the basis of the actual number of days elapsed over a year of
360 days) at a rate per annum equal to the Adjusted LIBO Rate then in effect plus (i) for each
Interest Period ending on an Interest Payment Date on which the Borrower pays all accrued and
unpaid interest on the Loans in cash, the Applicable Cash Percentage, and (ii) for each other
Interest Period, the Applicable PIK Percentage.
(i) Interest on each Loan shall be payable on the Interest Payment Dates, at the
Borrower’s option (i) in cash or (ii) in kind (“PIK”) in the form of additional Loans
(valued at 100% of the face amount thereof, which shall be rounded upward to the nearest
$1.00); provided, however, that the Borrower may not pay interest in cash until such time as
the Indebtedness of the Borrower and certain of its Subsidiaries under the GSO Loan
Documents has been paid in full. The applicable Adjusted LIBO Rate for each Interest Period
or day within an Interest Period, as the case may be, shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.05. Default Interest. While any Event of Default exists, to the extent permitted by
law, the Obligations shall bear cash (or, until such time as the Indebtedness of the Borrower and
certain of its Subsidiaries under the GSO Loan Documents has been paid in full, PIK) interest
(after as well as before judgment), payable on demand, at the rate otherwise applicable to a Loan
pursuant to Section 2.04 plus 2.00% per annum.
SECTION 2.06. Termination of Commitments. The Commitments shall automatically terminate upon
the making of the Loans on the Closing Date. Notwithstanding the foregoing, all the Commitments
shall automatically terminate at 5:00 p.m., New York City time, on February 15, 2008 if the Closing
Date shall not have occurred by such time.
SECTION 2.07. Repayment of Loans. To the extent not previously paid, all Loans (including
capitalized PIK interest) shall be due and payable on the Maturity Date together with accrued and
unpaid cash or PIK interest on the principal amount to be paid to but excluding the date of
payment. The Borrower shall pay all such amounts to the Lenders on the Maturity Date or, if the
Maturity Date is not a Business Day, on the next preceding Business Day. Notwithstanding anything
to the contrary in the foregoing or in the definition of “Maturity Date”, any repayment of the
Loans on the date of consummation of the Acquisition shall be deemed an optional prepayment of the
Loans pursuant to Section 2.08(a) hereof (but not subject to Section 2.08(b)) unless the Loans are
repaid with the proceeds of a debt financing provided by the Administrative Agent or its
Affiliates.
SECTION 2.08. Prepayment. (a) The Borrower shall have the right at any time and from time to
time to prepay any of the Loans, in whole or in part, at 100% of the principal amount so prepaid,
plus accrued and unpaid cash or PIK interest thereon, to but excluding the applicable prepayment
date (provided, however, that each partial prepayment shall be in an amount that is an integral
multiple of $100,000 and not less than $500,000). The Borrower will give at least 5 Business Days’
prior written notice of each optional prepayment under this Section 2.08(a) to the Administrative
Agent and the Lenders. Each such notice shall specify the prepayment date, the aggregate principal
amount of the Loans to be prepaid on such date, the principal amount of each Loan owned by such
Lender to be prepaid (determined in accordance with Section 2.11), and the interest to be paid on
the prepayment date with respect to such principal amount being prepaid. Such notice shall be
irrevocable and shall commit the Borrower to prepay the Loans by the amount stated therein on the
date stated therein.
(i) Upon the issuance or incurrence by the Borrower or any of its Subsidiaries of any
Indebtedness (other than Indebtedness permitted under Section 6.01), or the issuance by the
Borrower or any of its Subsidiaries of its or their Equity Interests, in either case
resulting in net proceeds to the Borrower or its Subsidiaries of $3,100,000 in the
aggregate, the Borrower shall promptly use 100% of all such proceeds received by the
Borrower or any of its Subsidiaries in excess of $3,100,000 to either (i) prepay the
existing Indebtedness of the Borrower or (ii) prepay the principal amount of the Loans plus
accrued and unpaid cash or PIK interest thereon. The provisions of this clause (b) shall
not be deemed to be implied consent to any such issuance or incurrence otherwise prohibited
by the terms and conditions of this Agreement.
(ii) All prepayments under this Section 2.08 shall be subject to Section 2.10.
SECTION 2.09. Reserve Requirements; Change in Circumstances. (a) Notwithstanding any other
provision of this Agreement, if any Change in Law shall impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits with or for the account
of or credit extended by any Lender (except any such reserve requirement which is reflected in the
Adjusted LIBO Rate) or shall impose on such Lender or the London interbank market any other
condition affecting this Agreement or Loans made by such Lender, and the result of any of the
foregoing shall be to increase the cost to such Lender of making or maintaining any Loan or to
reduce the amount of any sum received or receivable by such Lender hereunder (whether of principal,
interest or otherwise) by an amount deemed by such Lender to be material, then the Borrower will
pay to such Lender, upon demand, such additional amount or amounts as will compensate such Lender
for such additional costs incurred or reduction suffered.
(i) 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 such Lender’s
capital or on the capital of such Lender’s holding company, if any, as a consequence of this
Agreement or the Loans made by such Lender pursuant hereto to a level below that which such
Lender or such Lender’s holding company could have achieved but for such Change in Law
(taking into consideration such Lender’s policies and the policies of such Lender’s holding
company with respect to capital adequacy) by an amount deemed by such Lender to be material,
then from time to time the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender or such Lender’s holding company for any such
reduction suffered.
(ii) A certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as applicable, as specified in paragraph (a)
or (b) above shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such certificate
delivered by it within 10 days after its receipt of the same.
(iii) Failure or delay on the part of any Lender to demand compensation for any
increased costs or reduction in amounts received or receivable or reduction in return on
capital shall not constitute a waiver of such Lender’s right to demand such compensation;
provided that the Borrower shall not be under any obligation to compensate any Lender under
paragraph (a) or (b) above with respect to increased costs or reductions with respect to any
period prior to the date that is 120 days prior to such request if such Lender knew or could
reasonably have been expected to know of the circumstances giving rise to such increased
costs or reductions and of the fact that such circumstances would result in a claim for
increased compensation by reason of such increased costs or reductions; provided further
that the foregoing limitation shall not apply to any increased costs or reductions arising
out of the retroactive application of any Change in Law within such 120-day period. The
protection of this Section shall be available to each Lender and regardless of any possible
contention of the invalidity or inapplicability of the Change in Law that shall have
occurred or been imposed.
SECTION 2.10. Indemnity. The Borrower shall indemnify each Lender against any loss or expense
that such Lender may sustain or incur as a consequence of any default in the making of any payment
or prepayment required to be made hereunder. A certificate of any Lender setting forth any amount
or amounts which such Lender is entitled to receive pursuant to this Section 2.10 shall be
delivered to the Borrower and shall be conclusive absent manifest error.
SECTION 2.11. Pro Rata Treatment. Each payment or prepayment of principal of the Loans and
each payment of cash or PIK interest on the Loans shall be allocated pro rata among the Lenders in
accordance with the respective principal amounts of their outstanding Loans.
SECTION 2.12. Sharing of Setoffs. Each Lender agrees that if it shall, through the exercise
of a right of banker’s lien, setoff or counterclaim against the Borrower or any other Loan Party,
or pursuant to a secured claim under Section 506 of Title 11 of the United States Code or other
security or interest arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by any other means,
obtain payment (voluntary or involuntary) in respect of any Loan as a result of which the unpaid
principal portion of its Loans
shall be proportionately less than the unpaid principal portion of the Loans of any other
Lender, it shall be deemed simultaneously to have purchased from such other Lender at face value,
and shall promptly pay to such other Lender the purchase price for, a participation in the Loans of
such other Lender, so that the aggregate unpaid principal amount of the Loans and participations in
Loans held by each Lender shall be in the same proportion to the aggregate unpaid principal amount
of all Loans then outstanding as the principal amount of its Loans prior to such exercise of
banker’s lien, setoff or counterclaim or other event was to the principal amount of all Loans
outstanding prior to such exercise of banker’s lien, setoff or counterclaim or other event;
provided, however, that if any such purchase or purchases or adjustments shall be made pursuant to
this Section 2.12 and the payment giving rise thereto shall thereafter be recovered, such purchase
or purchases or adjustments shall be rescinded to the extent of such recovery and the purchase
price or prices or adjustment restored without interest. The Borrower expressly consents to the
foregoing arrangements and agrees that any Lender holding a participation in a Loan deemed to have
been so purchased may exercise any and all rights of banker’s lien, setoff or counterclaim with
respect to any and all moneys owing by the Borrower to such Lender by reason thereof as fully as if
such Lender had made a Loan directly to the Borrower in the amount of such participation.
SECTION 2.13. Payments. (a) The Borrower shall make each payment (including principal of or
interest on any Loan or any fees or other amounts but excluding PIK interest paid in accordance
with the terms hereof) hereunder and under any other Financing Document not later than 12:00
(noon), New York City time, on the date when due in immediately available dollars, without setoff,
defense or counterclaim. Each such payment that is payable to a Lender shall be paid directly to
such Lender at the office identified on Schedule 2.01 for such Lender or as otherwise directed by
such Lender in writing from time to time, and each such payment that is payable to the
Administrative Agent shall be paid directly to the Administrative Agent, at its office identified
on Schedule 2.01 or as otherwise directed by the Administrative Agent in writing from time to time.
(i) Except as otherwise expressly provided herein, whenever any payment (including
principal of or cash or PIK interest on any Loan or any fees or other amounts) hereunder or
under any other Financing Document shall become due, or otherwise would occur, on a day that
is not a Business Day, such payment may be made on the next succeeding Business Day, and
such extension of time shall in such case be included in the computation of interest or
fees, if applicable.
SECTION 2.14. Taxes. (a) Any and all payments by or on account of any obligation of the
Borrower or any other Loan Party hereunder or under any other Financing Document shall be made free
and clear of and without deduction for any Indemnified Taxes or Other Taxes; provided that, if the
Borrower or any other Loan Party shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums payable under this
Section) the Administrative Agent or Lender (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower or such Loan Party
shall make such deductions and (iii) the Borrower or such Loan Party shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable law.
(i) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.
(ii) The Borrower shall indemnify the Administrative Agent and each Lender, within
10 days after written demand therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent or such Lender, as the case may be, on or with
respect to any payment by or on account of any obligation of the Borrower or any other Loan
Party hereunder or under any other Financing Document (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender, or by the Administrative Agent
on behalf of itself, shall be conclusive absent manifest error.
(iii) As soon as practicable after any payment of Indemnified Taxes or Other Taxes by
the Borrower or any other Loan Party to a Governmental Authority, the Borrower shall deliver
to the Administrative Agent or the applicable Lender, as the case may be, the original or a
certified copy of a receipt issued by such Governmental Authority evidencing such payment, a
copy of the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent or the applicable Lender, as the case may be.
(iv) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is located, or any
treaty to which such jurisdiction is a party, with respect to payments under this Agreement
shall deliver to the Borrower (with a copy to the Administrative Agent), at the time or
times prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be made
without withholding or at a reduced rate.
(v) If the Administrative Agent or any Lender determines, in its sole discretion, that
it has received a refund of any Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid additional
amounts pursuant to this Section 2.14, it shall pay over such refund to the Borrower (but
only to the extent of indemnity payments made, or additional amounts paid, by the Borrower
under this Section 2.14 with respect to the Indemnified Taxes or Other Taxes giving rise to
such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender
and without interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of the
Administrative Agent or such Lender, agrees to repay the amount paid over to the Borrower
(plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the Administrative Agent
or such Lender is required to repay such refund to such Governmental Authority. This
paragraph shall not be construed to require the Administrative Agent or any Lender to make
available its tax returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other person.
SECTION 2.15. Assignment of Loans Under Certain Circumstances; Duty to Mitigate. If (a) any
Lender shall request compensation under Section 2.09 or (b) the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority on account of any Lender pursuant to
Section 2.14, then such Lender shall use reasonable efforts (which shall not require such Lender to
incur an unreimbursed loss or unreimbursed cost or expense or otherwise take any action
inconsistent with its internal policies or legal or regulatory restrictions or suffer any
disadvantage or burden deemed by it to be significant) (i) to file any certificate or document
reasonably requested in writing by the Borrower or (ii) to assign its rights and delegate and
transfer its obligations hereunder to another of its offices, branches or affiliates, if such
filing or assignment would reduce its claims for compensation under Section 2.09 or would reduce
amounts payable pursuant to Section 2.14, as the case may be, in the future. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such
filing or assignment, delegation and transfer.
SECTION 2.16. Issuance of Warrant. Subject to and upon the terms and conditions set forth in
this Agreement, the Borrower agrees to issue to the Lenders on the Closing Date, Warrants to
purchase in the aggregate 2,500,000 shares (the “Warrant Shares”) of the Borrower’s Common Stock,
no par value per share (“Common Stock”), at an exercise price initially equal to $0.40 per Warrant
Share, which shall be appropriately adjusted subsequently for any recapitalizations, stock
combinations, stock dividends, stock splits and the like which occur after the Closing Date as set
forth in the Form of Warrants.
ARTICLE III
Representations and Warranties of the Borrower
The Borrower represents and warrants to the Administrative Agent and each of the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Loan Parties (a) is duly organized, validly
existing and in good standing under the laws of the jurisdiction of its organization, (b) has all
requisite power and authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (c) is qualified to do business in, and is in good
standing in, every jurisdiction where such qualification is required, except where the failure so
to qualify could not reasonably be expected to result in a Material Adverse Effect, and (d) has the
power and authority to execute, deliver and perform its obligations under each of the Financing
Documents and each other agreement or instrument contemplated thereby to which it is or will be a
party and, in the case of the Borrower, to borrow hereunder.
SECTION 3.02. Authorization. Except as set forth in Schedule 3.02, the Transactions (a) have
been duly authorized by all requisite corporate and, if required, stockholder action and (b) will
not (i) violate (A) any provision of law, statute, rule or regulation, or of the certificate or
articles of incorporation or other constitutive documents or by-laws of the Borrower or any
Subsidiary, (B) any order of any Governmental Authority or (C) any provision of any indenture,
agreement or other instrument to which the Borrower or any Subsidiary is a party or by which any of
them or any of their property is or may be bound, (ii) be in conflict with, result in a breach of
or constitute (alone or with notice or lapse of time or both) a default under, or give rise to any
right to accelerate or to require the prepayment, repurchase or redemption of any obligation under
any such indenture, agreement or other instrument or (iii) result in the creation or imposition of
any Lien upon or with respect to any property or assets now owned or hereafter acquired by the
Borrower or any Subsidiary.
SECTION 3.03. Enforceability. This Agreement has been duly executed and delivered by the
Borrower and constitutes, and each other Financing Document when executed and delivered by each
Loan Party thereto will constitute, a legal, valid and binding obligation of such Loan Party
enforceable against such Loan Party in accordance with its terms.
SECTION 3.04. Governmental Approvals. No action, consent or approval of, registration or
filing with or any other action by any Governmental Authority is or will be required in connection
with the Transactions, except for such as have been made or obtained and are in full force and
effect.
SECTION 3.05. Financial Statements. The Borrower has heretofore furnished to the Lenders
(a) U.S. GAAP audited consolidated or combined, as applicable, balance sheets and related
statements of income, stockholders’ equity and cash flows of the Borrower for the 2004, 2005 and
2006 fiscal years, audited by and accompanied by the opinion of McGladrey & ▇▇▇▇▇▇ LLP or
PricewaterhouseCoopers, LLC, as applicable, independent public accountants and (b) U.S. GAAP
unaudited consolidated or combined, as applicable, balance sheets and related statements of income,
stockholders’ equity and cash flows of the Borrower for (i) each subsequent fiscal quarter ended
45 days before the Closing Date and (ii) to the extent available, each fiscal month after the most
recent fiscal quarter for which financial statements were received by the Lenders as described
above and ended 45 days before the Closing Date and, in each case, certified by the chief financial
officer of the Borrower. Such financial statements present fairly the financial condition and
results of operations and cash flows of the Borrower as of such dates and for such periods. Such
balance sheets and the notes thereto disclose all material liabilities, direct or contingent, of
the Borrower as of the dates thereof. Such financial statements were prepared in accordance with
GAAP applied on a consistent basis, subject, in the case of unaudited financial statements, to
year-end audit adjustments and the absence of footnotes.
SECTION 3.06. No Material Adverse Change. Except as disclosed in the TRM SEC Documents or on
Schedule 3.06, no Material Adverse Change has occurred since December 31, 2006.
SECTION 3.07. Title to Properties; Possession Under Leases; Intellectual Property.
(a) Except as would not reasonably be expected to have a Material Adverse Effect, each of the Loan
Parties has good and marketable title to, or valid leasehold interests in, all its properties and
assets, except for minor defects in title that do not interfere with its ability to conduct its
business as currently conducted or to utilize such properties and assets for their intended
purposes. All such properties and assets are free and clear of Liens, other than Liens expressly
permitted by Section 6.02.
(i) Except as would not reasonably be expected to have a Material Adverse Effect, each
of the Loan Parties (i) has complied with all obligations under all leases to which it is a
party and all such leases are in full force and effect and (ii) enjoys peaceful and
undisturbed possession under all such leases.
(ii) As of the Closing Date, the Borrower 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. 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 the Borrower 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 the Borrower 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.
SECTION 3.08. Subsidiaries. Schedule 3.08 sets forth as of the Closing Date a list of all
Subsidiaries and the percentage ownership interest of the Borrower or any other Subsidiary therein.
The shares of capital stock or other ownership interests so indicated on Schedule 3.08 are fully
paid and non-assessable and are owned by the Borrower or such other Subsidiary, directly or
indirectly, free and clear of all Liens other than Liens permitted by Section 6.02. Each Dormant
Subsidiary has no assets, liabilities or employees, and no Dormant Subsidiaries conducts any
business or generates any revenues.
SECTION 3.09. Litigation; Compliance with Laws. (a) Except as disclosed in Schedule 3.09 or
the TRM SEC Documents, there are no actions, suits or proceedings at law or in equity or by or
before any Governmental Authority now pending or, to the knowledge of the Borrower, threatened
against or affecting any of the Loan Parties or any business, property or rights of any such person
that could reasonably be expected, individually or in the aggregate, to result in a Material
Adverse Effect.
(i) Except as disclosed in Schedule 3.09 or the TRM SEC Documents, none of the Loan
Parties or any of their respective material properties or assets is in violation of, nor
will the continued operation of their material properties and assets as currently conducted
violate, any law, rule or regulation (including any zoning, building, Environmental Law,
ordinance, code or approval or any building permits), or is in default with respect to any
judgment, writ, injunction, decree or order of any Governmental Authority, where such
violation or default could reasonably be expected to result in a Material Adverse Effect.
(ii) None of the Loan Parties is, in any material respect, in conflict or default with
respect to or in violation of any applicable laws, regulations, orders or judgments.
SECTION 3.10. Agreements. (a) None of the Loan Parties is a party to any agreement or
instrument or subject to any corporate restriction that has resulted or could reasonably be
expected to result in a Material Adverse Effect.
(i) Except as disclosed in the TRM SEC Documents, none of the Loan Parties is or has
been in any material respect in default under or in violation of the performance of any of
its obligations under any material agreement, and, to the knowledge of the Loan Parties, no
other party thereto is in default under or in violation of the performance of any of its
obligations under any such material agreement.
SECTION 3.11. Federal Reserve Regulations. (a) None of the Loan Parties is engaged
principally, or as one of its important activities, in the business of extending credit for the
purpose of buying or carrying Margin Stock.
(i) No part of the proceeds of any Loan will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, the provisions of the Regulations of the Board,
including Regulation T, U or X.
SECTION 3.12. Government Regulation. None of the Loan Parties is an “investment company” as
defined in, or subject to regulation under, the Investment Company Act of 1940. None of the Loan
Parties is subject to regulation under the Federal Power Act, the Interstate Commerce Act, the ICC
Termination Act, as amended, or under any other federal or state statute or regulation which may
limit its ability to incur Indebtedness or Contingent Obligations or which may otherwise render all
or any portion of the Obligations unenforceable.
SECTION 3.13. Use of Proceeds. The Borrower will use the proceeds of the Loans only for the
purposes specified in the preliminary statement to this Agreement.
SECTION 3.14. Taxes. Each of the Loan Parties has filed or caused to be filed all Federal,
state, local and foreign tax returns or materials required to have been filed by it and has paid or
caused to be paid all taxes due and payable by it and all assessments received by it, except taxes
that are being contested in good faith by appropriate proceedings and for which the applicable Loan
Party shall have set aside on its books adequate reserves.
SECTION 3.15. Disclosure. All factual information (taken as a whole) furnished by or on
behalf of the Borrower and its Subsidiaries in writing to the Administrative Agent or any Lender
(including all information contained in the Schedules hereto or in the other Financing Documents)
for purposes of or in connection with this Agreement, the other Financing Documents, or any
transaction contemplated herein or therein is, and all other such factual information (taken as a
whole) hereafter furnished by or on behalf of the Borrower or its Subsidiaries in writing to the
Administrative Agent or any Lender will be, true and accurate in all material respects on the date
as of which such information is dated or certified and not incomplete by omitting to state any fact
necessary to make such information (taken as a whole) not misleading in any material respect at
such time in light of the circumstances under which such information was provided. No
representation or warranty of any Loan Party contained in any Financing Document or in any other
document, certificate or written statement furnished to the Agent or the Lenders by or on behalf of
the Borrower or any of its Subsidiaries for use in connection with the transactions contemplated by
this Agreement contains any untrue statement of a material fact. There are no facts known (or
which should upon the reasonable exercise of diligence be known) to the Loan Parties (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 the Administrative Agent and the Lenders
for use in connection with the transactions contemplated hereby.
SECTION 3.16. Employee Benefit Plans. Each of the Borrower and its ERISA Affiliates is in
compliance in all material respects with the applicable provisions of ERISA and the Code and the
regulations and published interpretations thereunder. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events, could reasonably be
expected to result in material liability of the Borrower or any of its ERISA Affiliates. The
present value of all benefit liabilities under each Plan (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual
valuation date applicable thereto, exceed the fair market value of the assets of such Plan, and the
present value of all benefit liabilities of all underfunded Plans (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the last annual
valuation dates applicable thereto, exceed the fair market value of the assets of all such
underfunded Plans.
SECTION 3.17. Environmental Matters. Except as set forth in Schedule 3.17, none of the Loan
Parties (i) has failed to comply with any Environmental Law or to obtain, maintain or comply with
any permit, license or other approval required under any Environmental Law, (ii) has become subject
to any Environmental Liability, (iii) has received notice of any claim with respect to any
Environmental Liability or (iv) knows of any basis for any Environmental Liability.
SECTION 3.18. Insurance. Schedule 3.18 sets forth a true, complete and correct description of
all insurance maintained by the Loan Parties and the Closing Date. As of the Closing Date, all
insurance maintained by the Loan Parties is in full force and effect and all premiums have been
duly paid. Such insurance maintained by the Loan Parties is in such amounts and covers such risks
and liabilities as are in accordance with normal industry practice.
SECTION 3.19. Location of Real Property and Leased Premises. The Borrower and its
Subsidiaries do not own any real property. The Borrower and the Subsidiaries have valid leases in
all the real property leased by the Borrower and the Subsidiaries.
SECTION 3.20. Labor Matters. As of the Closing Date, there are no strikes, lockouts or
slowdowns against any of the Loan Parties pending or, to the knowledge of the Borrower, threatened.
The hours worked by and payments made to employees of the Loan Parties have not been in violation
of the Fair Labor Standards Act or any other applicable Federal, state, local or foreign law
dealing with such matters. All payments due from any of the Loan Parties, or for which any claim
may be made against any of the Loan Parties, on account of wages and employee health and welfare
insurance and other benefits, have been paid or accrued as a liability on the books of any of the
Loan Parties. The consummation of the Transactions will not give rise to any right of termination
or right of renegotiation on the part of any union under any collective bargaining agreement to
which any of the Loan Parties is bound.
SECTION 3.21. Solvency. Immediately after the consummation of the Transactions to occur on
the Closing Date and immediately following the making of the Loans and after giving effect to the
application of the proceeds of the Loans, each Loan Party will be Solvent. As used herein with
respect to any Loan Party, “Solvent” shall mean (a) the fair value of the assets of such Loan
Party, at a fair valuation, will exceed its debts and liabilities, subordinated, contingent or
otherwise; (b) the present fair saleable value of the property of such Loan Party will be greater
than the amount that will be required to pay the probable liability of its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and other liabilities become
absolute and matured; (c) such Loan Party will be able to pay its debts and liabilities,
subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured;
and (d) such Loan Party will not have unreasonably small capital with which to conduct the business
in which it is engaged as such business is now conducted and is proposed to be conducted following
the Closing Date.
SECTION 3.22. Transactions. The Borrower has delivered to the Administrative Agent a complete
and correct copy of the Settlement Agreement (including all schedules, exhibits, amendments,
supplements and modifications thereto). No Loan Party or, to the knowledge of the Borrower, any
other person party thereto is in default in the performance or compliance with any material
provisions thereof. The Settlement Agreement complies in all material respects with all applicable
laws. All representations and warranties set forth in the Settlement Agreement were true and
correct in all material respects at the time as of which such representations and warranties were
made (or deemed made).
SECTION 3.23. Financial Advisors. Except as set forth in Schedule 3.23, no agent, broker,
investment banker, finder, financial advisor or other person is or will be entitled to any broker’s
or finder’s fee or any other commission or similar fee from the Borrower with respect to this
Agreement or any of the other Financing Documents or any of the transactions contemplated hereby,
and the Borrower hereby indemnifies the Lenders and the Administrative Agent against, and agrees
that it will hold the Lenders and the Administrative Agent 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.
SECTION 3.24. Foreign Assets Control Regulations, Etc. (a) Neither the borrowing of the
Loans by the Borrower hereunder nor its use of the proceeds thereof will violate (i) the United
States Trading with the Enemy Act, as amended, (ii) any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended) or any
enabling legislation or executive order relating thereto, (iii) Executive Order No. 13,224, 66 Fed
Reg 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property
and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) (the
“Terrorism Order”) or (iv) the USA PATRIOT ACT. No part of the proceeds from the Loans will be
used, directly or indirectly, for any payments to any governmental official or employee, political
party, official of a political party, candidate for political office, or anyone else acting in an
official capacity, in order to obtain, retain or direct business or obtain any improper advantage,
in violation of the United States Foreign Corrupt Practices Act of 1977, as amended.
(i) No Loan Party (i) is or will become a “blocked person” as described in Section 1 of
the Terrorism Order or (ii) engages or will engage in any dealings or transactions, or is
otherwise associated, with any such blocked person or any such person.
(ii) Each of the Loan Parties and its Affiliates are in compliance, in all material
respects, with the Uniting And Strengthening America By Providing Appropriate Tools Required
To Intercept And Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Public Law 107-56
(October 26, 2001).
(iii) None of the Loan Parties nor, to the knowledge of the Borrower, any director,
officer, agent, employee or Affiliate of any of the Loan Parties is currently subject to any
U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); the Borrower will not directly or indirectly use the proceeds of the
Loans or otherwise make available such proceeds to any person, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions administered by OFAC.
SECTION 3.25. Representations of other Loan Parties. The representations and warranties of
each Subsidiary Guarantor contained in the Financing Documents to which it is a party are true and
correct as of the date they are made and shall be true and correct at the time of the Closing Date.
SECTION 3.26. Loans to Officers and Directors. There are no outstanding loans made by the
Borrower or any of its Subsidiaries to any of their officers, directors or shareholders (directly
or indirectly) or any of such persons’ Affiliates.
SECTION 3.27. Internal Controls. The Borrower and its Subsidiaries maintain a system of
internal control over financial reporting. Such internal controls over financial reporting provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with GAAP. There are no significant
deficiencies or material weaknesses in the design or operation of the Borrower’s and its
Subsidiaries’ ability to record, process, summarize and report financial data. Except as disclosed
in the TRM SEC Documents, there is and has been no fraud, whether or not material, that involves
management or other Employees who have a significant role in the Borrower’s and/or its
Subsidiaries’ internal controls.
SECTION 3.28. Subordinated Indebtedness; Ranking. The Obligations constitute senior
indebtedness that is entitled to the benefits of the subordination provisions, if any, of all
unsecured Indebtedness and Contingent Obligations of the Borrower and its Subsidiaries. All
liabilities of the Borrower and its Subsidiaries under the Financing Documents constitute direct,
unconditional and general obligations of the Borrower and its Subsidiaries and rank in right of
payment either pari passu or senior to all other unsecured Indebtedness and Contingent Obligations
of the Borrower and its Subsidiaries.
SECTION 3.29. Capitalization and Voting Rights.
(i) Authorized Stock. 50,000,000 shares of Common Stock, of which 17,213,226
shares are issued and outstanding as of the date hereof, and no shares are held in treasury
as of the date hereof.
(ii) Valid Issuance. The outstanding shares of Common Stock are all duly and
validly authorized and issued, fully paid and nonassessable, and were issued in compliance
with all applicable state and federal laws concerning the issuance of securities.
(iii) Rights to Acquire. Except for (i) restricted stock and options to
purchase an aggregate of 963,081 shares of Common Stock granted and outstanding under the
Borrower’s Omnibus Stock Incentive Plan (the “Company Option Plan”) and (ii) warrants to
purchase an aggregate of 3,072,074 shares of Common Stock granted and outstanding, there are
not outstanding any options, warrants, rights (including conversion or preemptive rights) or
agreements for the purchase or acquisition from the Borrower of any shares of its capital
stock as of the date hereof. The Borrower has reserved a total of 3,700,000 shares of
Common Stock for issuance under the Company Option Plan (including the shares described
above).
(iv) Other than the Registration Rights Agreement, the Borrower is not a party or
subject to any agreement or understanding and, to the Borrower’s knowledge, there is no
agreement or understanding between any persons and/or entities which affects or relates to
the voting or giving of written consents with respect to any security of the Borrower.
SECTION 3.30. Valid Issuance of the Warrant Shares. The Warrants and the Warrant Shares have
been duly authorized, and the Warrant Shares, upon issuance pursuant to the terms of the Warrants,
will be validly issued, fully paid and nonassessable and not subject to any encumbrances,
preemptive rights or any other similar contractual rights of the stockholders of the Borrower or
any other person. The Borrower has reserved from its duly authorized capital stock the number of
shares of Common Stock issuable upon the exercise in full of the Warrants.
ARTICLE IV
Conditions of Lending
The obligations of the Lenders to make Loans hereunder are subject to the satisfaction of the
following conditions on the Closing Date:
SECTION 4.01. Representations and Warranties. The representations and warranties set forth in
Article III of this Agreement and in each other Financing Document shall be true and correct.
SECTION 4.02. Default; Event of Default. Except as set forth in Schedule 4.02, at the time of
and immediately after the Closing Date, no Default or Event of Default shall have occurred and be
continuing.
SECTION 4.03. Opinion of Counsel. The Administrative Agent shall have received, on behalf of
itself and the Lenders, a favorable written opinion of (i) Ledgewood, counsel for the Loan Parties,
substantially to the effect set forth in Exhibit E-1, and (ii) ▇▇▇▇▇▇▇ Coie with respect to
matters of Oregon law, substantially to the effect set forth in Exhibit E-2, in each case,
(A) dated the Closing Date, (B) addressed to the Administrative Agent and the Lenders, and
(C) covering such other matters relating to the Financing Documents and the Transactions as the
Administrative Agent shall reasonably request, and the Borrower hereby requests such counsel to
deliver such opinions.
SECTION 4.04. Legal Matters. All legal matters incident to this Agreement, the extensions of
credit hereunder and the other Financing Documents shall be satisfactory to the Lenders and to the
Administrative Agent.
SECTION 4.05. Secretary Certificates; Other Documents. The Administrative Agent shall have
received the following from or with respect to each Loan Party:
(i) a copy of the certificate or articles of incorporation or other such Organizational
Document, including all amendments thereto, certified as of a recent date by either the
Secretary of State of the state of its organization or such Governmental Authority, and a
certificate certifying that such Loan Party has paid all franchise taxes due and payable on
or prior to the date of such certificate and such Loan Party is duly organized and in good
standing under the laws of such jurisdiction;
(ii) a certificate of the Secretary of each Loan Party dated the Closing Date and
certifying (A) that attached thereto are true and complete copies of the Organizational
Documents of such Loan Party as in effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B) below, (B) that attached
thereto is a true and complete copy of resolutions duly adopted by the Board of Directors of
such Loan Party authorizing the execution, delivery and performance of the Financing
Documents to which such person is a party and, in the case of the Borrower, the borrowings
hereunder, and that such resolutions have not been modified, rescinded or amended and are in
full force and effect, (C) that the certificate or articles of incorporation or other such
Organizational Document of such Loan Party have not been amended since the date of the last
amendment thereto shown on the certificate of good standing furnished pursuant to clause (i)
above, and (D) as to the incumbency and specimen signature of each officer executing any
Financing Document or any other document delivered in connection herewith on behalf of such
Loan Party;
(iii) a certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to clause (ii)
above; and
(iv) such other documents as the Lenders or the Administrative Agent may reasonably
request.
SECTION 4.06. Officer Certificate. The Administrative Agent shall have received a
certificate, dated the Closing Date and signed by a Financial Officer of the Borrower, confirming
compliance with the conditions precedent set forth in paragraphs (a) and (b) of this Article IV.
SECTION 4.07. Closing Fees, Expenses. The Administrative Agent shall have received all fees
and other amounts due and payable on or prior to the Closing Date, including, to the extent
invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid
by the Borrower hereunder or under any other Financing Document.
SECTION 4.08. Insurance Policies. The Administrative Agent shall have received a copy of, or
a certificate as to coverage under, the insurance policies required by Section 5.02.
SECTION 4.09. Consummation of Transactions. The Transactions shall have been, or
substantially simultaneously with the funding of the Loans on the Closing Date shall be,
consummated in accordance with applicable law and on the terms described herein and all other
material related documentation, in each case in the form provided to the Administrative Agent.
SECTION 4.10. No Poison Pills. No stockholder rights plan or “poison pill” shall have been
triggered or otherwise become exercisable in connection with the Transactions.
SECTION 4.11. Financing Statements. The Lenders shall have received the financial statements
and opinions referred to in Section 3.05.
SECTION 4.12. Solvency Certificate. The Administrative Agent shall have received a
certificate from the chief financial officer of the Borrower, in form and substance satisfactory to
the Administrative Agent, to the effect that each of the Loan Parties, in each case after giving
effect to the Transactions and the other transactions contemplated hereby, is Solvent.
SECTION 4.13. Consents. All requisite Governmental Authorities and other material third
parties, including without limitation GSO, shall have approved or consented to the Transactions and
the other transactions contemplated hereby to the extent required, all applicable appeal periods
shall have expired and there shall not be any pending or threatened litigation, governmental,
administrative or judicial action, actual or threatened, that could reasonably be expected to
restrain, prevent or impose materially burdensome conditions on the Transactions.
SECTION 4.14. Patriot Act. The Administrative Agent and the Lenders shall have received, to
the extent requested, all documentation and other information required by regulatory authorities
under applicable “know your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act.
SECTION 4.15. Proceedings. All corporate and other proceedings in connection with the
transactions contemplated by this Agreement and the other Financing Documents shall be reasonably
satisfactory to the Lenders and the Administrative Agent, and the Lenders and the Administrative
Agent shall have received all such counterpart originals or certified or other copies of such
documents as the Lenders or Agent may reasonably request.
ARTICLE V
Affirmative Covenants
The Borrower covenants and agrees with each Lender that so long as this Agreement shall remain
in effect and until the Commitments have been terminated and the principal of and interest on each
Loan, all fees and all other expenses or amounts payable under any Financing Document shall have
been paid in full, unless the Required Lenders (or the Administrative Agent acting at the written
direction of the Required Lenders) shall otherwise consent in writing, the Borrower will, and will
cause each of the Subsidiaries to:
SECTION 5.01. Existence; Compliance with Laws; Businesses and Properties. (a) Do or cause to
be done all things necessary to preserve, renew and keep in full force and effect its legal
existence, except as otherwise expressly permitted under Section 6.05.
(i) Do or cause to be done all things necessary to obtain, preserve, renew, extend and
keep in full force and effect the rights, licenses, permits, franchises, authorizations,
patents, copyrights, trademarks and trade names material to the conduct of its business;
maintain and operate such business in substantially the manner in which it is presently
conducted and operated; comply in all material respects with all applicable laws, rules,
regulations and decrees and orders of any Governmental Authority, whether now in effect or
hereafter enacted; and at all times maintain and preserve all property material to the
conduct of such business and keep such property in good repair, working order and condition
and from time to time make, or cause to be made, all needful and proper repairs, renewals,
additions, improvements and replacements thereto necessary in order that the business
carried on in connection therewith may be properly conducted at all times.
SECTION 5.02. Insurance. Keep its insurable properties adequately insured at all times by
financially sound and reputable insurers; maintain such other insurance, to such extent and against
such risks, including fire and other risks insured against by extended coverage, as is customary
with companies in the same or similar businesses operating in the same or similar
locations, including public liability insurance against claims for personal injury or death or
property damage occurring upon, in, about or in connection with the use of any properties owned,
occupied or controlled by it; and maintain such other insurance as may be required by law.
SECTION 5.03. Obligations and Taxes. Pay its Indebtedness and other obligations promptly and
in accordance with their terms (provided that, with respect to overdue accounts payable as of the
Closing Date disclosed as Defaults on Schedule 4.02, the Borrower shall not be required to
discharge such accounts payable until the date that is 90 days after the Closing Date) and pay and
discharge promptly when due, all taxes, assessments and governmental charges or levies imposed upon
it or upon its income or profits or in respect of its property, before the same shall become
delinquent or in default, as well as all lawful claims for labor, materials and supplies or
otherwise that, if unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that such payment and discharge shall not be required with respect to any such
tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested
in good faith by appropriate proceedings and the Borrower shall have set aside on its books
adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend
collection of the contested obligation, tax, assessment or charge and enforcement of a Lien.
SECTION 5.04. Financial Statements, Reports, etc. In the case of the Borrower, furnish to the
Administrative Agent and each Lender:
(i) within 90 days after the end of each fiscal year, its consolidated and
consolidating balance sheet and related statements of income, stockholders’ equity and cash
flows showing the financial condition of the Borrower and its consolidated Subsidiaries as
of the close of such fiscal year and the results of its operations and the operations of
such Subsidiaries during such year, together with comparative figures for the immediately
preceding fiscal year, all audited by McGladrey & ▇▇▇▇▇▇ LLP or other independent public
accountants of recognized national standing reasonably acceptable to the Administrative
Agent and accompanied by an opinion of such accountants (which opinion shall be without a
“going concern” or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such consolidated financial
statements fairly present the financial condition and results of operations of the Borrower
and its consolidated Subsidiaries on a consolidated and consolidating basis in accordance
with GAAP consistently applied;
(ii) within 45 days after the end of each of the first three fiscal quarters of each
fiscal year, its consolidated and consolidating balance sheet and related statements of
income, stockholders’ equity and cash flows showing the financial condition of the Borrower
and its consolidated Subsidiaries as of the close of such fiscal quarter and the results of
its operations and the operations of such Subsidiaries during such fiscal quarter and the
then elapsed portion of the fiscal year, together with comparative figures for the same
periods in the immediately preceding fiscal year, all certified by one of the Financial
Officers of the Borrower as fairly presenting the financial condition and results of
operations of the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end audit adjustments;
(iii) concurrently with any delivery of financial statements under paragraph (a) or
(b) above, a certificate of the accounting firm (in the case of paragraph (a)) or Financial
Officer (in the case of paragraph (b)) opining on or certifying such statements (which
certificate, when furnished by an accounting firm, may be limited to accounting matters and
disclaim responsibility for legal interpretations) certifying that no Event of Default or
Default has occurred or, if such an Event of Default or Default has occurred, specifying the
nature and extent thereof and any corrective action taken or proposed to be taken with
respect thereto;
(iv) within 90 days after the beginning of each fiscal year of the Borrower, a detailed
consolidated budget for such fiscal year (including a projected consolidated balance sheet
and related statements of projected operations and cash flows as of the end of and for such
fiscal year and setting forth the assumptions used for purposes of preparing such budget)
and, promptly when available, any significant revisions of such budget;
(v) promptly after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by the Borrower or any Subsidiary with
any Governmental Authority or securities exchange, or distributed to its shareholders, as
the case may be;
(vi) promptly after the receipt thereof by the Borrower or any of its Subsidiaries, a
copy of any “management letter” received by any such person from its certified public
accountants and the management’s response thereto;
(vii) promptly after the request by any Lender, all documentation and other information
that such Lender reasonably requests in order to comply with its ongoing obligations under
applicable “know your customer” and anti-money laundering rules and regulations, including
the USA PATRIOT Act; and
(viii) promptly, from time to time, such other information regarding the operations,
business affairs and financial condition of the Borrower or any Subsidiary, or compliance
with the terms of any Financing Document, as the Administrative Agent or any Lender may
reasonably request.
SECTION 5.05. Litigation and Other Notices. Furnish to the Administrative Agent and each
Lender prompt written notice of the following:
(i) any Event of Default or Default, specifying the nature and extent thereof and the
corrective action (if any) taken or proposed to be taken with respect thereto;
(ii) the filing or commencement of, or any threat or notice of intention of any person
to file or commence, any action, suit or proceeding, whether at law or in equity or by or
before any Governmental Authority, against the Borrower or any Affiliate thereof that could
reasonably be expected to result in a Material Adverse Effect;
(iii) the occurrence of any ERISA Event that, alone or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability of the
Borrower and the Subsidiaries in an aggregate amount exceeding $100,000; and
(iv) any development that has resulted in, or could reasonably be expected to result
in, a Material Adverse Effect.
SECTION 5.06. Maintaining Records; Access to Properties and Inspections; Maintenance of
Ratings. Keep proper books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law are made of all dealings and transactions in
relation to its business and activities. Each Loan Party will, and will cause each of its
Subsidiaries to, permit any representatives designated by the Administrative Agent or any Lender to
visit and inspect the financial records and the properties of such person at reasonable times and
as often as reasonably requested and to make extracts from and copies of such financial records,
and permit any representatives designated by the Administrative Agent or any Lender to discuss the
affairs, finances and condition of such person with the officers thereof and independent
accountants therefor.
SECTION 5.07. Use of Proceeds. Use the proceeds of the Loans only for the purposes specified
in the preliminary statement to this Agreement.
SECTION 5.08. Employee Benefits. Comply in all material respects with the applicable
provisions of ERISA and the Code.
SECTION 5.09. Compliance with Environmental Laws. Comply, and cause all lessees and other
persons occupying its properties to comply, in all material respects with all Environmental Laws
applicable to its operations and properties; obtain and renew all material environmental permits
necessary for its operations and properties; and conduct any remedial action in accordance with
Environmental Laws; provided, however, that neither the Borrower nor any Subsidiary shall be
required to undertake any remedial action required by Environmental Laws to the extent that its
obligation to do so is being contested in good faith and by proper proceedings and appropriate
reserves are being maintained with respect to such circumstances in accordance with GAAP.
SECTION 5.10. Preparation of Environmental Reports. If a Default caused by reason of a breach
of Section 3.17 or Section 5.09 shall have occurred and be continuing for more than 20 days without
the Borrower or any Subsidiary commencing activities reasonably likely to cure such Default, at the
written request of the Required Lenders through the Administrative Agent, provide to the Lenders
within 45 days after such request, at the expense of the Loan Parties, an environmental site
assessment report regarding the matters which are the subject of such Default prepared by an
environmental consulting firm reasonably acceptable to the Administrative Agent and indicating the
presence or absence of Hazardous Materials and the estimated cost of any compliance or remedial
action in connection with such Default.
SECTION 5.11. Further Assurances.
(i) Upon the consummation of any acquisition of any person by any of the Loan Parties,
upon the formation by any of the Loan Parties of any Subsidiary, or upon any Subsidiary
ceasing to be a Dormant Subsidiary (either because the Borrower voluntarily withdraws such
designation or because such designation is deemed withdrawn pursuant to Section
6.14), the Borrower shall cause the person so acquired or formed, or such Subsidiary
that is no longer a Dormant Subsidiary, as the case may be, at the election of the
Administrative Agent or Required Lenders, to be designated as a Subsidiary Guarantor of the
Obligations. Such person shall become a Loan Party by executing and delivering a joinder to
the Guaranty Agreement, in form and substance satisfactory to the Administrative Agent.
(ii) Notwithstanding anything to the contrary in paragraph (a) of this Section
5.11, no Foreign Subsidiary shall be required to guarantee the Obligations to the extent
making such guarantee (i) would result in adverse tax consequences to the Borrower (as
certified to the Administrative Agent by a Financial Officer of the Borrower) or (ii) is
prohibited by applicable law.
SECTION 5.12. Ranking. Ensure that, at all times, all liabilities of the Borrower and its
Subsidiaries under this Agreement or the other Financing Documents shall rank in right of payment
either pari passu or senior to all other unsecured Indebtedness and Contingent Obligations of the
Borrower and its Subsidiaries.
SECTION 5.13. Post-Closing Covenants. Within 10 Business Days of the Closing Date, the
Borrower shall take all necessary corporate action to appoint to its board of directors a nominee
selected by the Administrative Agent and identified by the Administrative Agent to the Borrower.
ARTICLE VI
Negative Covenants
The Borrower covenants and agrees with each Lender that, so long as this Agreement shall
remain in effect and until the Commitments have been terminated and the principal of and interest
on each Loan, all fees and all other expenses or amounts payable under any Financing Document have
been paid in full, unless the Required Lenders (or the Administrative Agent acting at the written
direction of the Required Lenders) shall otherwise consent in writing, the Borrower will not, nor
will it cause or permit any of the Subsidiaries to:
SECTION 6.01. Indebtedness. Incur, create, assume or permit to exist any Indebtedness,
except:
(1) Indebtedness existing on the date hereof and set forth in Schedule 6.01 and any
extensions, renewals or replacements of such Indebtedness to the extent the principal amount of
such Indebtedness is not increased (other than Indebtedness extended to the Borrower and certain of
its Subsidiaries under the GSO Loan Documents, the principal amount of which Indebtedness may be
increased by an aggregate amount not to exceed the sum of $1,000,000 plus the amount of accrued but
unpaid interest on such Indebtedness), neither the final maturity nor the weighted average life to
maturity of such Indebtedness is decreased, such Indebtedness, if subordinated to the Obligations,
remains so subordinated on terms no less favorable to the Lenders, and the original obligors in
respect of such Indebtedness remain the only obligors thereon;
(2) Indebtedness created hereunder and under the other Financing Documents;
(3) intercompany Indebtedness of the Borrower and the Subsidiaries to the extent permitted by
Section 6.04(3);
(4) Capital Lease Obligations in an aggregate principal amount not in excess of $100,000 at
any time outstanding;
(5) Indebtedness of the Borrower incurred substantially simultaneously with the closing of the
Acquisition for purposes of financing the Acquisition not to exceed $15,000,000 in the aggregate;
(6) Indebtedness under performance bonds or with respect to workers’ compensation claims, in
each case incurred in the ordinary course of business; and
(7) accounts payable and accrued expenses, liabilities or other obligations to pay the
deferred purchase price of property or services, from time to time incurred in the ordinary course
of business which are not greater than ninety (90) days past the date of invoice or which are being
contested in good faith by appropriate action and for which adequate reserves have been maintained
in accordance with GAAP.
SECTION 6.02. Liens. Create, incur, assume or permit to exist any Lien on any property or
assets (including Equity Interests or other securities of any person, including the Borrower or any
Subsidiary) now owned or hereafter acquired by it or on any income or revenues or rights in respect
of any thereof, except:
(1) Liens on property or assets of the Borrower and the Subsidiaries existing on the date
hereof and set forth in Schedule 6.02; provided that such Liens shall secure only those obligations
which they secure on the date hereof and extensions, renewals and replacements thereof permitted
hereunder;
(2) Liens on property or assets of the Borrower and its Subsidiaries securing obligations
under the GSO Loan Documents;
(3) any Lien existing on any property or asset prior to the acquisition thereof by the
Borrower or any Subsidiary or existing on any property or assets of any person that becomes a
Subsidiary after the date hereof prior to the time such person becomes a Subsidiary, as the case
may be; provided that (i) such Lien is not created in contemplation of or in connection with such
acquisition or such person becoming a Subsidiary, (ii) such Lien does not apply to any other
property or assets of the Borrower or any Subsidiary and (iii) such Lien secures only those
obligations which it secures on the date of such acquisition or the date such person becomes a
Subsidiary, as the case may be;
(4) Liens for taxes not yet due or which are being contested in compliance with Section 5.03;
(5) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens
arising in the ordinary course of business and securing obligations that are not due and payable or
which are being contested in compliance with Section 5.03;
(6) pledges and deposits made in the ordinary course of business in compliance with workmen’s
compensation, unemployment insurance and other social security laws or regulations;
(7) deposits to secure the performance of bids, trade contracts (other than for Indebtedness),
leases (other than Capital Lease Obligations), statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature incurred in the ordinary course of
business;
(8) zoning restrictions, easements, rights-of-way, restrictions on use of real property and
other similar encumbrances incurred in the ordinary course of business which, in the aggregate, are
not substantial in amount and do not materially detract from the value of the property subject
thereto or interfere with the ordinary conduct of the business of the Borrower or any of its
Subsidiaries; and
(9) purchase money security interests in real property, improvements thereto or equipment
hereafter acquired (or, in the case of improvements, constructed) by the Borrower or any
Subsidiary; provided that (i) such security interests secure Indebtedness permitted by
Section 6.01, (ii) such security interests are incurred, and the Indebtedness secured thereby is
created, within 90 days after such acquisition (or construction), (iii) the Indebtedness secured
thereby does not exceed 100% of the lesser of the cost or the fair market value of such real
property, improvements or equipment at the time of such acquisition (or construction) and (iv) such
security interests do not apply to any other property or assets of the Borrower or any Subsidiary.
SECTION 6.03. Sale and Lease-Back Transactions. Enter into any arrangement, directly or
indirectly, with any person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property which it intends to use for substantially the same purpose or
purposes as the property being sold or transferred unless (a) the sale or transfer of such property
is permitted by Section 6.05 and (b) any Capital Lease Obligations or Liens arising in connection
therewith are permitted by Section 6.01 and 6.02, as the case may be.
SECTION 6.04. Investments, Loans and Advances. Purchase, hold or acquire any Equity
Interests, evidences of indebtedness or other securities of, make or permit to exist any loans or
advances to, or make or permit to exist any investment or any other interest in, any other person,
except:
(1) (i) investments by the Borrower and the Subsidiaries existing on the date hereof in the
Equity Interests of the Borrower and the Subsidiaries and (ii) additional investments by the
Borrower and the Subsidiaries in the Equity Interests of the Borrower and the Subsidiaries;
provided that the aggregate amount of investments by Loan Parties in, and loans and advances by
Loan Parties to, Subsidiaries that are not Loan Parties (determined without regard to any
write-downs or write-offs of such investments, loans and advances) shall not exceed $100,000 at any
time outstanding;
(2) Permitted Investments;
(3) loans or advances made by the Borrower to any Subsidiary and made by any Subsidiary to the
Borrower or any other Subsidiary; provided that the aggregate amount of such loans and advances
made by Loan Parties to Subsidiaries that are not Loan Parties (determined without regard to any
write-downs or write-offs of such investments, loans and advances) shall not exceed $100,000 at any
time outstanding;
(4) the Borrower and the Subsidiaries may make loans and advances in the ordinary course of
business to their respective employees so long as the aggregate principal amount thereof at any
time outstanding (determined without regard to any write-downs or write-offs of such loans and
advances) shall not exceed $250,000; and
(5) the Borrower and the Subsidiaries may enter into Hedging Agreements that are not
speculative in nature.
SECTION 6.05. Acquisitions, Consolidations, Sales of Assets and Acquisitions. (a)Merge into
or consolidate with any other person, or permit any other person to merge into or consolidate with
it, or sell, transfer, lease or otherwise dispose of (in one transaction or in a series of
transactions) all or substantially all the assets (whether now owned or hereafter acquired) of the
Borrower or less than all the Equity Interests of any Subsidiary, or purchase, lease or otherwise
acquire (in one transaction or a series of transactions) all or any substantial part of the assets
of any other person, except that (i) the Borrower and any Subsidiary may purchase and sell
inventory in the ordinary course of business, (ii) the Borrower or another Loan Party may enter
into the Acquisition Agreement (but not close the Acquisition until the (A) Loans have been repaid
in full in accordance with this Agreement and (B) the Indebtedness of the Borrower and certain of
its Subsidiaries under the GSO Loan Documents has been repaid in full in cash) and (iii) if at the
time thereof and immediately after giving effect thereto no Event of Default or Default shall have
occurred and be continuing any wholly owned Subsidiary of the Borrower may merge into or
consolidate with any other wholly owned Subsidiary of the Borrower in a transaction in which the
surviving entity is a wholly owned Subsidiary of the Borrower and no person other than the Borrower
or a wholly owned Subsidiary receives any consideration (provided that if any party to any such
transaction is a Loan Party, the surviving entity of such transaction shall be a Loan Party).
(i) Make any Asset Sale otherwise permitted under paragraph (a) above unless (i) such
Asset Sale is for consideration at least 75% of which is cash, (ii) such consideration is at
least equal to the fair market value of the assets being sold, transferred, leased or
disposed of and (iii) the fair market value of all assets sold, transferred, leased or
disposed of pursuant to this paragraph (b) shall not exceed $500,000 in the aggregate.
SECTION 6.06. Restricted Payments; Restrictive Agreements. (a) Declare or make, or agree to
declare or make, directly or indirectly, any Restricted Payment (including pursuant to any
Synthetic Purchase Agreement), or incur any obligation (contingent or otherwise) to do so;
provided, however, that (i) any Subsidiary of the Borrower may declare and pay dividends or make
other distributions ratably to its equity holders and (ii) the Borrower and the Subsidiaries may
make Restricted Payments in the form of distributions payable solely in the common stock or other
common Equity Interests of such person;
(i) Enter into, incur or permit to exist any agreement or other arrangement that
prohibits, restricts or imposes any condition upon (i) the ability of the Borrower or any
Subsidiary to create, incur or permit to exist any Lien upon any of its property or assets,
or (ii) the ability of any Subsidiary to pay dividends or other distributions with respect
to any of its Equity Interests or to make or repay loans or advances to the Borrower or any
other Subsidiary or to Guarantee Indebtedness of the Borrower or any other Subsidiary;
provided that (A) the foregoing shall not apply to restrictions and conditions imposed by
the GSO Loan Documents, (B) the foregoing shall not apply to restrictions and conditions
imposed by law or by any Financing Document, (C) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a Subsidiary
pending such sale, provided such restrictions and conditions apply only to the Subsidiary
that is to be sold and such sale is permitted hereunder, (D) clause (i) of the foregoing
shall not apply to restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions apply only to
the property or assets securing such Indebtedness and (E) subject to Section 5.12,
clause (i) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
SECTION 6.07. Transactions with Affiliates. Except for transactions between or among Loan
Parties or between the Lenders or the Administrative Agent, on the one hand, and the Loan Parties,
on the other hand, sell or transfer any property or assets to, or purchase or acquire any property
or assets from, or otherwise engage in any other transactions with, any of its Affiliates, except
that the Borrower or any Subsidiary may engage in any of the foregoing transactions in the ordinary
course of business at prices and on terms and conditions not less favorable to the Borrower or such
Subsidiary than could be obtained on an arm’s-length basis from unrelated third parties.
SECTION 6.08. Business of the Borrower and its Subsidiaries. With respect to the Borrower and
each of its Subsidiaries, engage at any time in any business or business activity other than the
business currently conducted by it and business activities reasonably incidental thereto.
SECTION 6.09. Other Indebtedness and Agreements. (a) Permit (i) any waiver, supplement,
modification, amendment (other than with respect to the GSO Loan Documents, but only to the extent
such waiver, supplement, modification or amendment is not prohibited by Section 6.01 hereof),
termination or release of any indenture, instrument or agreement
pursuant to which any Material Indebtedness of the Borrower or any of the Subsidiaries is
outstanding if the effect of such waiver, supplement, modification, amendment, termination or
release would materially increase the obligations of the obligor or confer additional material
rights on the holder of such Indebtedness in a manner adverse to the Borrower, any of the
Subsidiaries or the Lenders or (ii) any waiver, supplement, modification or amendment of its
certificate of incorporation, by-laws, operating, management or partnership agreement or other
organizational documents.
(i) (i) Make any distribution, whether in cash, property, securities or a combination
thereof, other than regular scheduled payments of principal and interest as and when due (to
the extent not prohibited by applicable subordination provisions), in respect of, or pay, or
commit to pay, or directly or indirectly (including pursuant to any Synthetic Purchase
Agreement) redeem, repurchase, retire or otherwise acquire for consideration, or set apart
any sum for the aforesaid purposes, any Indebtedness (other than the Loans) or (ii) pay in
cash any amount in respect of any Indebtedness or preferred Equity Interests that may at the
obligor’s option be paid in kind or in other securities; provided, however, that the
Borrower may make payments of principal and interest on the Indebtedness of the Borrower and
certain of its Subsidiaries under the GSO Loan Documents prior to such payments becoming
due.
SECTION 6.10. Fiscal Year. With respect to the Borrower and each Subsidiary, change their
fiscal year-end to a date other than December 31.
SECTION 6.11. Certain Equity Securities. Issue any Equity Interest that is not Qualified Capital Stock.
SECTION 6.12. Amendments or Waivers of Documents Relating to Indebtedness.
(i) Amendments of Documents Relating to Indebtedness. The Borrower will not, and will
not permit any of its Subsidiaries to, amend or otherwise change the terms of any
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
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 Indebtedness (or a trustee or other representative on their behalf)
which would be adverse to any of the Loan Parties, the Lenders or the Administrative Agent,
provided that the foregoing shall not prohibit the Borrower or any of its Subsidiaries from
amending or otherwise changing the terms of the GSO Loan Documents to the extent such
amendment or change is not prohibited by Section 6.1 hereof.
(ii) Amendments of Organizational Documents. The Borrower will not, and will not
permit any of its Subsidiaries to, make any amendment, restatement, supplement or other
modification to such person’s Organizational Documents in any manner adverse to the Lenders
or the Administrative Agent without obtaining the prior written consent of the Required
Lenders to such amendment, restatement, supplement or other modification.
SECTION 6.13. Wholly-Owned Subsidiaries. Neither the Borrower nor any Subsidiary of the
Borrower will own, form or acquire any Subsidiary other than Subsidiaries that are wholly owned
Subsidiaries of the Borrower.
SECTION 6.14. Dormant Subsidiaries. The Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly, permit (a) the combined gross revenue of all Dormant
Subsidiaries for the period of four fiscal consecutive quarters most recently ended to exceed $500,
(b) the combined total assets of the Dormant Subsidiaries at any time to be more than $500 or (c)
any Dormant Subsidiary to own, or possess the right to use, any Intellectual Property or other
assets that individually or in the aggregate are material to the business of the Borrower and its
Subsidiaries, taken as a whole. The Borrower may withdraw the designation of any Subsidiary as a
Dormant Subsidiary at any time in a written notice to the Administrative Agent. If, at any time,
the Borrower is not in compliance with clauses (a) through (c) above, unless the Borrower has
notified the Administrative Agent in writing (1) within 5 Business Days after the date the Borrower
is required to deliver financial statements for the applicable fiscal quarter or year pursuant to
Section 5.04(a) or (b) (in the case of clause (a) of this Section 6.14) or (2) within 5 Business
Days of such occurrence (in the case of clause (b) or (c) of this Section 6.14) that such
designation has been withdrawn for one or more Dormant Subsidiaries sufficient to comply with this
Section 6.14, then such designation shall be deemed to have been withdrawn as to all such
Subsidiaries (in the case of clause (a) or (b)) or the applicable Subsidiary (in the case of clause
(c)) and each such Subsidiary as to which such designation is deemed to have been withdrawn shall
thereupon be deemed to have ceased to be a Dormant Subsidiary. Any Subsidiary for which such
designation has been withdrawn or deemed withdrawn may not be re-designated as a Dormant
Subsidiary. Nothing contained herein shall prohibit the Dormant Subsidiaries from engaging in any
dissolution, liquidation, consolidation or merger, and such action shall not be deemed a Default or
Event of Default.
ARTICLE VII
Representations and Warranties of the Lenders
Each Lender represents and warrants, severally and not jointly, to the Borrower that:
SECTION 7.01. Authorization. All action on the part of the Lenders and, if applicable, its
officers, directors, managers, members, shareholders and/or partners necessary for the
authorization, execution, delivery and performance of this Agreement and the Registration Rights
Agreement and the consummation of the transactions contemplated herein and therein, has been taken.
When executed and delivered, each of this Agreement and the Registration Rights Agreement will
constitute the legal, valid and binding obligation of each Lender, enforceable against each Lender
in accordance with its terms, except as such may be limited by bankruptcy, insolvency,
reorganization or other laws affecting creditors’ rights generally and by general equitable
principles. Each Lender has all requisite corporate power and authority to enter into each of this
Agreement and the Registration Rights Agreement, and to carry out and perform its obligations under
the terms hereof and thereof.
SECTION 7.02. Purchase Entirely for Own Account. Each Lender is acquiring the Loans, the
Warrant Shares and the Warrants for its own account for investment and not for resale or with a
view to distribution thereof in violation of the Securities Act.
SECTION 7.03. Investor Status; Etc. Each Lender certifies and represents to the Borrower that
it is an “accredited investor” as defined in Rule 501 of Regulation D promulgated under the
Securities Act and was not organized for the purpose of acquiring any of the Loans, the Warrants or
the Warrant Shares. Each Lender’s financial condition is such that it is able to bear the risk of
holding the Loans, the Warrants and Warrant Shares for an indefinite period of time and the risk of
loss of its entire investment. Each Lender has sufficient knowledge and experience in investing in
companies similar to the Borrower so as to be able to evaluate the risks and merits of its
investment in the Borrower.
SECTION 7.04. No Conflict. The execution and delivery of this Agreement and the Registration
Rights Agreement by each Lender, and the consummation of the transactions contemplated hereby and
thereby, will not conflict with or result in any violation of or default by such Lender (with or
without notice or lapse of time, or both) under any provision of the organizational documents of
such Lender.
SECTION 7.05. Brokers. Each Lender has not retained, utilized or been represented by any
broker or finder in connection with the transactions contemplated by this Agreement.
ARTICLE VIII
Events of Default
In case of the happening of any of the following events (“Events of Default”):
(1) any representation or warranty made or deemed made in or in connection with any Financing
Document or the Loans made hereunder, or any representation, warranty, statement or information
contained in any report, certificate, financial statement or other instrument furnished in
connection with or pursuant to any Financing Document, shall prove to have been false or misleading
in any material respect when so made, deemed made or furnished;
(2) default shall be made in the payment of any principal of any Loan when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed for prepayment
thereof or by acceleration thereof or otherwise;
(3) default shall be made in the payment of any interest on any Loan or any fee or any other
amount (other than an amount referred to in (b) above) due under any Financing Document, when and
as the same shall become due and payable, and such default shall continue unremedied for a period
of three Business Days;
(4) default shall be made in the due observance or performance by the Borrower or any
Subsidiary of any covenant, condition or agreement contained in Section 5.01(a), 5.05(i) or 5.08 or
in Article VI;
(5) default shall be made in the due observance or performance by the Borrower or any
Subsidiary of any covenant, condition or agreement contained in any Financing Document (other than
those
specified in (b), (c) or (d) above) and such default shall continue unremedied for a period of
20 days after notice thereof from the Administrative Agent or any Lender to the Borrower;
(6) (i) the Borrower or any Subsidiary shall fail to pay any principal or interest, regardless
of amount, due in respect of any Material Indebtedness, when and as the same shall become due and
payable; provided that this clause (i) shall not apply to any Default or Event of Default disclosed
in Schedule 4.02 and existing on the date hereof, or (ii) any other event or condition occurs that
enables or permits (with or without the giving of notice, the lapse of time or both) the holder or
holders of any Material Indebtedness or any trustee or agent on its or their behalf to cause any
Material Indebtedness to become due, or to require the prepayment, repurchase, redemption or
defeasance thereof, prior to its scheduled maturity; provided that this clause (ii) shall not apply
to (A) secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness or (B) any Default or Event of Default disclosed in
Schedule 4.02; and provided further that with respect to any default under the GSO Loan Documents,
such default shall only constitute an Event of Default under this clause (f) if such default
continues for 180 days without cure or waiver;
(7) any event or condition occurs that results in any Material Indebtedness coming due prior
to its scheduled maturity date or the holder or holders of any Material Indebtedness or any trustee
or agent on its or their behalf cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity; provided
that this clause (g) shall not apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such Indebtedness; provided further
that with respect to an event resulting in the Indebtedness under the GSO Loan Documents becoming
due, or requiring the prepayment, repurchase, redemption or defeasance of such Indebtedness, such
event shall only constitute an Event of Default under this clause (g) if such event continues for
180 days without being rescinded or waived by the holders of such Indebtedness;
(8) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in
a court of competent jurisdiction seeking (i) relief in respect of the Borrower or any Subsidiary,
or of a substantial part of the property or assets of the Borrower or a Subsidiary, under Title 11
of the United States Code, as now constituted or hereafter amended, or any other Federal, state or
foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver,
trustee, custodian, sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of the property or assets of the Borrower or a Subsidiary or
(iii) the winding-up or liquidation of the Borrower or any Subsidiary; and such proceeding or
petition shall continue undismissed for 60 days or an order or decree approving or ordering any of
the foregoing shall be entered;
(9) the Borrower or any Subsidiary shall (i) voluntarily commence any proceeding or file any
petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other Federal, state or foreign bankruptcy, insolvency, receivership or similar
law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding or the filing of any petition described in (g) above, (iii) apply for or consent to the
appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
the Borrower or any Subsidiary or for a substantial part of the property or assets of the Borrower
or any Subsidiary, (iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit of creditors,
(vi) become unable, admit in writing its inability or fail generally to pay its debts as they
become due or (vii) take any action for the purpose of effecting any of the foregoing;
(10) one or more judgments shall be rendered against the Borrower, any Subsidiary or any
combination thereof and the same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Borrower or any Subsidiary to enforce
any such judgment and such judgment is for the payment of money in an aggregate amount in excess of
$250,000;
(11) an ERISA Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other such ERISA Events, could reasonably be expected to result in
liability of the Borrower and its ERISA Affiliates in an aggregate amount exceeding $250,000;
(12) any Subsidiary Guarantor shall deny in writing that it has any further liability under
the Subsidiary Guaranty (other than as a result of the discharge of such Subsidiary Guarantor in
accordance with the terms of the Financing Documents);
(13) any material subordinated Indebtedness of the Borrower and the Subsidiaries constituting
Material Indebtedness shall cease (or any Loan Party or an Affiliate of any Loan Party shall so
assert), for any reason, to be validly subordinated to the Obligations as provided in the
agreements evidencing such subordinated Indebtedness;
(14) the Borrower or any of its Subsidiaries shall be convicted under any criminal law that
could lead to a forfeiture of any material property of such person;
(15) there shall have occurred a Change in Control;
then, and in every such event (other than an event with respect to the Loan Parties described in
paragraph (g) or (h) above), and at any time thereafter during the continuance of such event, the
Administrative Agent may, and at the request of the Required Lenders shall, by notice to the
Borrower, take either or both of the following actions, at the same or different times:
(i) terminate forthwith the Commitments and (ii) declare the Loans then outstanding to be forthwith
due and payable in whole or in part, whereupon the principal of the Loans so declared to be due and
payable (and accrued cash or PIK interest thereon) and any unpaid accrued fees and all other
liabilities of the Loan Parties accrued hereunder and under any other Financing Document, shall
become forthwith due and payable, without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived by the Borrower, anything contained herein or in any
other Financing Document to the contrary notwithstanding; and in any event with respect to the Loan
Parties described in paragraph (g) or (h) above, the Commitments shall automatically terminate and
the principal of the Loans then outstanding (and accrued cash or PIK interest thereon) and any
unpaid accrued fees and all other liabilities of the Borrower accrued hereunder and under any other
Financing Document, shall automatically become due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly waived the Borrower,
anything contained herein or in any other Financing Document to the contrary notwithstanding.
ARTICLE IX
The Administrative Agent
Each of the Lenders hereby irrevocably appoints the Administrative Agent its agent and
authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers
as are delegated to the Administrative Agent by the terms of the Financing Documents, together with
such actions and powers as are reasonably incidental thereto. Without limiting the generality of
the foregoing, the Administrative Agent is hereby expressly authorized to execute any and all
documents (including releases) as contemplated by and in accordance with the provisions of this
Agreement.
The person serving as the Administrative Agent hereunder shall have the same rights and powers
in its capacity as a Lender as any other Lender and may exercise the same as though it were not the
Administrative Agent, and such person and its affiliates may provide debt financing, equity capital
or other services (including financial advisory services) to any of the Loan Parties (or any person
engaged in similar business as that engaged in by any of the Loan Parties) as if such person was
not performing the duties specified herein, and may accept fees and other consideration from any of
the Loan Parties for services in connection with this Agreement and otherwise without having to
account for the same to the Lenders.
The Administrative Agent shall not have any duties or obligations except those expressly set
forth in the Financing Documents. Without limiting the generality of the foregoing, (a) the
Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of
whether a Default has occurred and is continuing, (b) the Administrative Agent shall not have any
duty to take any discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is instructed in
writing to exercise by the Required Lenders (or such other number or percentage of the Lenders as
shall be necessary under the circumstances as provided in Section 10.08), and (c) except as
expressly set forth in the Financing Documents, the Administrative Agent shall not have any duty to
disclose, nor shall it be liable for the failure to disclose, any information relating to the
Borrower or any of the Subsidiaries that is communicated to or obtained by the person serving as
Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not
be liable for any action taken or not taken by it with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 10.08) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have knowledge of any Default
or Event of Default unless and until written notice thereof is given to the Administrative Agent by
the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any
duty to ascertain or inquire into (i) any statement, warranty or representation made in or in
connection with any Financing Document, (ii) the contents of any certificate, report or other
document delivered thereunder or in connection therewith, (iii) the performance or observance of
any of the covenants, agreements or other terms or conditions set forth in any Financing Document,
(iv) the validity, enforceability, effectiveness or genuineness of any Financing Document or any
other agreement, instrument or document, or (v) the satisfaction of any condition set forth in
Article IV or elsewhere in any Financing Document, other than to confirm receipt of items expressly
required to be delivered to such Agent.
The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument, document or other
writing believed by it to be genuine and to have been signed or sent by the proper person. The
Administrative Agent may also rely upon any statement made to it orally or by
telephone and believed by it to have been made by the proper person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected by it, and shall not
be liable for any action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and exercise its rights and powers
by or through any one or more sub-agents appointed by it. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers by or through their
respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to
any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent,
and shall apply to their respective activities in connection with the syndication of the Credit
Facilities as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by notifying the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall 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 hereunder. The
fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent’s resignation hereunder, the provisions of this Article and Section 10.05
shall continue in effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to be taken by any of
them while acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each
Lender also acknowledges that it will, independently and without reliance upon the Agents or any
other Lender and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement or any other Financing Document, any related agreement or any document furnished
hereunder or thereunder.
ARTICLE X
Miscellaneous
SECTION 10.01. Notices. Notices and other communications provided for herein shall be in
writing and shall be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by fax, as follows:
(i) if to the Borrower, to it at ▇▇▇▇ ▇. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention
of ▇▇▇▇▇▇▇ ▇▇▇▇▇, President and Chief Executive Officer (Fax No. ▇▇▇-▇▇▇-▇▇▇▇), with a copy
(which shall not constitute notice) to Ledgewood, PC, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ (Fax No. ▇▇▇-▇▇▇-▇▇▇▇);
(ii) if to the Administrative Agent, to ▇▇▇▇▇, ▇▇▇▇▇▇ & Co., LLC, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, with a copy (which shall not
constitute notice) to Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (Fax No. ▇▇▇-▇▇▇-▇▇▇▇); and
(iii) if to a Lender, to it at its address (or fax number) set forth on Schedule 2.01
or in the Assignment and Acceptance pursuant to which such Lender shall have become a party
hereto.
All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service or sent by fax or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 10.01 or in accordance with the
latest unrevoked direction from such party given in accordance with this Section 10.01. As agreed
to among the Borrower, the Administrative Agent and the applicable Lenders from time to time,
notices and other communications may also be delivered by e-mail to the e-mail address of a
representative of the applicable person provided from time to time by such person.
SECTION 10.02. Survival of Agreement. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other instruments prepared or
delivered in connection with or pursuant to this Agreement or any other Financing Document shall be
considered to have been relied upon by the Lenders and shall survive the making by the Lenders of
the Loans, regardless of any investigation made by the Lenders or on their behalf, and shall
continue in full force and effect as long as the principal of or any accrued interest on any Loan
or fee or any other amount payable under this Agreement or any other Financing Document is
outstanding and unpaid and so long as the Commitments have not been terminated. The provisions of
Section 2.09, 2.10, 2.14 and 10.05 shall remain operative and in full force and effect regardless
of the expiration of the term of this Agreement, the consummation of the transactions contemplated
hereby, the repayment of any of the Loans, the expiration of the Commitments or unenforceability of
any term or provision of this Agreement or any other Financing Document, or any investigation made
by or on behalf of the Administrative Agent or any Lender.
SECTION 10.03. Binding Effect. This Agreement shall become effective when it shall have been
executed by the Borrower, the Administrative Agent and each of the Lenders party hereto as of the
date hereof and when the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto.
SECTION 10.04. Successors and Assigns. (a) Whenever in this Agreement any of the parties
hereto is referred to, such reference shall be deemed to include the permitted successors and
assigns of such party; and all covenants, promises and agreements by or on behalf of the Borrower,
the Administrative Agent or the Lenders that are contained in this Agreement shall bind and inure
to the benefit of their respective successors and assigns.
(i) Each Lender may assign to one or more assignees all or a portion of its interests,
rights and obligations under this Agreement (including all or a portion of its Commitment
and the Loans at the time owing to it), with the prior written consent of the Borrower and
the Administrative Agent (such consents not to be unreasonably withheld or delayed);
provided, however, that (i) the consent of the Borrower shall not be required to any such
assignment made (A) to another Lender or an Affiliate of a Lender, (B) during the primary
syndication of the Loans and the Commitments to persons identified to the Borrower prior to
the Closing Date or (C) after the occurrence and during the continuance of any Event of
Default, (ii) the amount of the Commitment or Loans of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with respect to
such assignment is delivered to the Administrative Agent) shall be in an integral multiple
of, and not less than, $500,000 (or, if less, the entire remaining amount of such Lender’s
Commitment or Loans), (iii) the parties to each such assignment shall manually execute and
deliver to the Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500 (provided that only one such fee shall be payable in the case
of concurrent assignments to persons that, after giving effect to such assignments, will be
Related Funds), and (iv) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire and all applicable tax forms. Upon
acceptance and recording pursuant to paragraph (e) of this Section 10.04, from and after the
effective date specified in each Assignment and Acceptance, (A) the assignee thereunder
shall be a party hereto and, to the extent of the interest assigned by such Assignment and
Acceptance, have the rights and obligations of a Lender under this Agreement and (B) the
assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment
and Acceptance, be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance 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
but shall continue to be entitled to the benefits of Section 2.09, 2.10, 2.14 and 10.05).
(ii) By executing and delivering an Assignment and Acceptance, the assigning Lender
thereunder and the assignee thereunder shall be deemed to confirm to and agree with each
other and the other parties hereto as follows: (i) such assigning Lender warrants that it
is the legal and beneficial owner of the interest being assigned thereby free and clear of
any adverse claim and that its Commitment, and the outstanding balance of its Loans, without
giving effect to assignments thereof which have not become effective, are as set forth in
such Assignment and Acceptance; (ii) except as set forth in (i) above, such assigning Lender
makes no representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this Agreement, or
the execution, legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, any other Financing Document or any other instrument or document furnished
pursuant hereto, or the financial condition of the Borrower or any Subsidiary or the
performance or observance by the Borrower or any Subsidiary of any of its obligations under
this Agreement, any other Financing Document or any other instrument or document furnished
pursuant hereto; (iii) such assignee represents and warrants that it is legally authorized
to enter into such Assignment and Acceptance; (iv) such assignee confirms that it has
received a copy of this Agreement, together with copies of the most recent financial
statements referred to in Section 3.05 or delivered pursuant to Section 5.04 and such other
documents and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (v) such assignee will independently
and without reliance upon the Administrative Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under this
Agreement; (vi) such
assignee appoints and authorizes the Administrative Agent to take such action as agent
on its behalf and to exercise such powers under this Agreement as are delegated to the
Administrative Agent, by the terms hereof, together with such powers as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this Agreement are required to be
performed by it as a Lender.
(iii) The Borrower shall maintain at its principal executive offices in Portland,
Oregon a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of, and principal
amount of the Loans owing to, each Lender pursuant to the terms hereof from time to time
(the “Register”). The Borrower, the Administrative Agent and the Lenders may treat each
person whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Administrative Agent and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(iv) Upon its receipt of, and consent to, a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, an Administrative Questionnaire completed
in respect of the assignee (unless the assignee shall already be a Lender hereunder), the
processing and recordation fee referred to in paragraph (b) above, if applicable, and the
written consent of the Administrative Agent and, if required, the Borrower to such
assignment and any applicable tax forms, the Administrative Agent shall (i) accept such
Assignment and Acceptance and (ii) notify the Borrower of such acceptance. The Borrower
shall promptly record the information contained therein in the Register. No assignment
shall be effective unless it has been recorded in the Register as provided in this
paragraph (e).
(v) Each Lender may without the consent of the Borrower or the Administrative Agent
sell participations to one or more banks or other persons in all or a portion of its rights
and obligations under this Agreement (including all or a portion of its Commitment and the
Loans owing to it); provided, however, 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, (iii) the participating banks
or other persons shall be entitled to the benefit of the cost protection provisions
contained in Section 2.09 and 2.14 to the same extent as if they were Lenders (but, with
respect to any particular participant, to no greater extent than the Lender that sold the
participation to such participant) and (iv) the Borrower, the Administrative Agent and the
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, and such Lender shall retain the sole
right to enforce the obligations of the Borrower relating to the Loans and to approve any
amendment, modification or waiver of any provision of this Agreement (other than amendments,
modifications or waivers decreasing any fees payable to such participating bank or person
hereunder or the amount of principal of or the rate at which interest is payable on the
Loans in which such participating bank or person has an interest, extending any scheduled
principal payment date or date fixed for the payment of interest on the Loans in which such
participating bank or person has an interest, increasing or extending the Commitments in
which such participating bank or person has an interest or releasing any Subsidiary
Guarantor (other than in connection with the sale of such Subsidiary Guarantor in a
transaction permitted by Section 6.05).
(vi) Any Lender or participant may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 10.04, disclose to the
assignee or participant or proposed assignee or participant any information relating to the
Borrower furnished to such Lender by or on behalf of the Borrower; provided that, prior to
any such disclosure of information designated by the Borrower as confidential, each such
assignee or participant or proposed assignee or participant shall execute an agreement
whereby such assignee or participant shall agree (subject to customary exceptions) to
preserve the confidentiality of such confidential information on terms no less restrictive
than those applicable to the Lenders pursuant to Section 10.16.
(vii) Any Lender may at any time assign all or any portion of its rights under this
Agreement to secure extensions of credit to such Lender or in support of obligations owed by
such Lender; provided that no such assignment shall release a Lender from any of its
obligations hereunder or substitute any such assignee for such Lender as a party hereto.
(viii) Notwithstanding anything to the contrary contained herein, any Lender (a
“Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as
such in writing from time to time by the Granting Lender to the Administrative Agent and the
Borrower, the option to provide to the Borrower all or any part of any Loan that such
Granting Lender would otherwise be obligated to make to the Borrower pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make
any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide
all or any part of such Loan, the Granting Lender shall be obligated to make such Loan
pursuant to the terms hereof. The making of a Loan by an SPC hereunder shall utilize the
Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this
Agreement (all liability for which shall remain with the Granting Lender). In
furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive
the termination of this Agreement) that, prior to the date that is one year and one day
after the payment in full of all outstanding commercial paper or other senior indebtedness
of any SPC, it will not institute against, or join any other person in instituting against,
such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
under the laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 10.04, any SPC may (i) with notice to,
but without the prior written consent of, the Borrower and the Administrative Agent and
without paying any processing fee therefor, assign all or a portion of its interests in the
Loans to the Granting Lender or to any financial institutions (consented to by the Borrower
and Administrative Agent) providing liquidity and/or credit support to or for the account of
such SPC to support the funding or maintenance of Loans and (ii) disclose on a confidential
basis any non-public information relating to its Loans to any rating agency, commercial
paper dealer or provider of any surety, guarantee or credit or liquidity enhancement to such
SPC.
(ix) The Borrower shall not assign or delegate any of its rights or duties hereunder
without the prior written consent of the Administrative Agent and each Lender, and any
attempted assignment without such consent shall be null and void.
SECTION 10.05. Expenses; Indemnity. (a) The Borrower agrees to pay all out-of-pocket
expenses incurred by the Administrative Agent in connection with the syndication of the Credit
Facilities and the preparation and administration of this Agreement and the other Financing
Documents or in connection with any amendments, modifications or waivers of the provisions hereof
or thereof (whether or not the transactions hereby or thereby contemplated shall be consummated) or
incurred by the Administrative Agent or any Lender in connection with the enforcement or protection
of its rights in connection with this Agreement and the other Financing Documents or in connection
with the Loans made hereunder, including the fees, charges and disbursements of Milbank, Tweed,
▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the Administrative Agent, and, in connection with any such
enforcement or protection, the fees, charges and disbursements of any other counsel for the
Administrative Agent or any Lender.
(i) The Borrower agrees to indemnify the Administrative Agent, each Lender and each
Related Party of any of the foregoing persons (each such person being called an
“Indemnitee”) against, and to hold each Indemnitee harmless from, any and all losses,
claims, damages, liabilities and related expenses, including reasonable counsel fees,
charges and disbursements, incurred by or asserted against any Indemnitee arising out of, in
any way connected with, or as a result of (i) the execution or delivery of this Agreement or
any other Financing Document or any agreement or instrument contemplated thereby, the
performance by the parties thereto of their respective obligations thereunder or the
consummation of the Transactions and the other transactions contemplated thereby (including
the syndication of the Credit Facilities), (ii) the use of the proceeds of the Loans,
(iii) any claim, litigation, investigation or proceeding relating to any of the foregoing,
whether or not any Indemnitee is a party thereto (and regardless of whether such matter is
initiated by a third party or by the Borrower, any other Loan Party or any of their
respective Affiliates), or (iv) any actual or alleged presence or Release of Hazardous
Materials on any property currently or formerly owned or operated by the Borrower or any of
the Subsidiaries, or any Environmental Liability related in any way to the Borrower or the
Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses are determined
by a court of competent jurisdiction by final and nonappealable judgment to have resulted
primarily from the gross negligence or willful misconduct of such Indemnitee.
(ii) To the extent that the Borrower fails to pay any amount required to be paid by
them to the Administrative Agent under paragraph (a) or (b) of this Section, each Lender
severally agrees to pay to the Administrative Agent such Lender’s pro rata share (determined
as of the time that the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim,
damage, liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent in its capacity as such. For purposes hereof, a Lender’s
“pro rata share” shall be determined based upon its share of the sum of the outstanding
Loans and unused Commitments at the time.
(iii) To the extent permitted by applicable law, the Borrower 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 or any agreement or instrument
contemplated hereby, the Transactions, any Loan or the use of the proceeds thereof.
(iv) The provisions of this Section 10.05 shall remain operative and in full force and
effect regardless of the expiration of the term of this Agreement, the consummation of the
transactions contemplated hereby, the repayment of any of the Loans, the expiration of the
Commitments, the invalidity or unenforceability of any term or provision of this Agreement
or any other Financing Document, or any investigation made by or on behalf of the
Administrative Agent or any Lender. All amounts due under this Section 10.05 shall be
payable on written demand therefor.
SECTION 10.06. Right of Setoff. If an Event of Default shall have occurred and be continuing,
each Lender is hereby authorized at any time and from time to time, except to the extent prohibited
by law, to set off and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of the Borrower against any of and all the obligations of the Borrower now or
hereafter existing under this Agreement and other Financing Documents held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this Agreement or such
other Financing Document and although such obligations may be unmatured. The rights of each Lender
under this Section 10.06 are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.
SECTION 10.07. Applicable Law. THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS (OTHER THAN
AS EXPRESSLY SET FORTH IN OTHER FINANCING DOCUMENTS) SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
SECTION 10.08. Waivers; Amendment. (a) No failure or delay of the Administrative Agent or
any Lender in exercising any power or right hereunder or under any other Financing Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other
or further exercise thereof or the exercise of any other right or power. The rights and remedies
of the Administrative Agent and the Lenders hereunder and under the other Financing Documents are
cumulative and are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or any other Financing Document or consent to any
departure by the Borrower or any other Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) below, and then such waiver or consent shall be
effective only in the specific instance and for the purpose for which given. No notice or demand
on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances.
(i) Neither this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the Borrower and
the Required Lenders (or the Administrative Agent acting at the written direction of the
Required Lenders); provided, however, that no such agreement shall (i) decrease the
principal amount of, or extend the maturity of or any scheduled principal payment date or
date for the payment of any interest on any Loan, or waive or excuse any such payment or any
part thereof, or decrease the rate of interest on any Loan, without the prior written
consent of each Lender directly adversely affected thereby (other than any waiver of any
increase in the interest rate applicable to the Loans as a result of the occurrence of a
Default or an Event of Default), (ii) increase or extend the Commitment or decrease or
extend the date for payment of any fees of any Lender without the prior written consent of
such Lender, (iii) amend or modify the pro rata requirements of Section 2.11, the provisions
of Section 10.04(a)(ix) or the provisions of this Section or release any Subsidiary
Guarantor (other than in connection with the sale of such Subsidiary Guarantor in a
transaction permitted by Section 6.05), without the prior written consent of each Lender,
(iv) modify the protections afforded to an SPC pursuant to the provisions of
Section 10.04(a)(viii) without the written consent of such SPC or (vi) reduce the percentage
contained in the definition of the term “Required Lenders” without the prior written consent
of each Lender (it being understood that with the consent of the Required Lenders,
additional extensions of credit pursuant to this Agreement may be included in the
determination of the Required Lenders on substantially the same basis as the Commitments on
the date hereof); provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder or under any other
Financing Document without the prior written consent of the Administrative Agent.
SECTION 10.09. Interest Rate Limitation. Notwithstanding anything herein to the contrary, if
at any time the interest rate applicable to any Loan, together with all fees, charges and other
amounts which are treated as interest on such Loan under applicable law (collectively the
“Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable
law, the rate of interest payable in respect of such Loan hereunder, together with all Charges
payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section 10.09 shall be cumulated and the interest and Charges
payable to such Lender in respect of other periods shall be increased (but not above the Maximum
Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds
Effective Rate to the date of repayment, shall have been received by such Lender.
SECTION 10.10. Entire Agreement. This Agreement and the other Financing Documents constitute
the entire contract between the parties relative to the subject matter hereof. Any other previous
agreement among the parties with respect to the subject matter hereof is superseded by this
Agreement and the other Financing Documents. Nothing in this Agreement or in the other Financing
Documents, expressed or implied, is intended to confer upon any person (other than the parties
hereto and thereto, their respective successors and assigns permitted hereunder and, to the extent
expressly contemplated hereby, the Related
Parties of each of the Administrative Agent and the Lenders) any rights, remedies, obligations
or liabilities under or by reason of this Agreement or the other Financing Documents.
SECTION 10.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
OTHER FINANCING DOCUMENTS. EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER FINANCING
DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.11
SECTION 10.12. Severability. In the event any one or more of the provisions contained in this
Agreement or in any other Financing Document should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining provisions contained herein
and therein shall not in any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties shall endeavor in
good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of the invalid, illegal
or unenforceable provisions.
SECTION 10.13. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 10.03. Delivery of an executed signature page to this Agreement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart of this Agreement.
SECTION 10.14. Headings. Article and Section headings and the Table of Contents used herein
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.
SECTION 10.15. Jurisdiction; Consent to Service of Process. (a) The Borrower hereby
irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction
of any New York State court or Federal court of the United States of America sitting in New York
City, and any appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Financing Documents, or for recognition or enforcement of
any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees
that a final judgment in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in
this Agreement shall affect any right that the Administrative Agent or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or the other Financing Documents
against the Borrower, or their respective properties in the courts of any jurisdiction.
(i) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this
Agreement or the other Financing Documents in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or proceeding in any such
court.
(ii) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 10.01. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner permitted by law.
SECTION 10.16. Confidentiality. Each of the Administrative Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that Information may be
disclosed (a) to its and its Affiliates’ officers, directors, 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 regulatory authority or
quasi-regulatory authority (such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or similar legal process,
(d) in connection with the exercise of any remedies hereunder or under the other Financing
Documents or any suit, action or proceeding relating to the enforcement of its rights hereunder or
thereunder, (e) subject to an agreement containing provisions substantially the same as those of
this Section 10.16, to (i) any actual or prospective assignee of or participant in any of its
rights or obligations under this Agreement and the other Financing Documents or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative transaction relating to
the Borrower or any Subsidiary or any of their respective obligations, (f) with the consent of the
Borrower or (g) to the extent such Information becomes publicly available other than as a result of
a breach of this Section 10.16. For the purposes of this Section, “Information” shall mean all
information received from the Borrower or any Subsidiary and related to the Borrower or any
Subsidiary or their business, other than any such information that was available to the
Administrative Agent or any Lender on a nonconfidential basis prior to its disclosure by the
Borrower or any Subsidiary; provided that, in the case of Information received from the Borrower or
any Subsidiary after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any person required to maintain the confidentiality of Information as
provided in this Section 10.16 shall be considered to have complied with its obligation to do so if
such person has exercised the same degree of care to maintain the confidentiality of such
Information as such person would accord its own confidential information.
SECTION 10.17. USA PATRIOT Act Notice. Each Lender and the Administrative Agent (for itself
and not on behalf of any Lender) hereby notifies the Borrower and the Subsidiary Guarantors that
pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record
information that identifies the Borrower and the Subsidiary Guarantors, which information includes
the name and address of the Borrower and the Subsidiary Guarantors and other information that will
allow such Lender or the Administrative Agent, as applicable, to identify the Borrower and the
Subsidiary Guarantors in accordance with the USA PATRIOT Act.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.
| TRM CORPORATION, as the Borrower |
||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
| Title: | President and Chief Executive Officer | |||
| ▇▇▇▇▇, ▇▇▇▇▇▇ & CO., LLC, as Administrative Agent | ||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Managing Member | |||
| LC CAPITAL MASTER FUND, LTD., as a Lender |
||||
| By | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Name: | ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ | |||
| Title: | Director | |||
Schedules and Exhibits List (1)
SCHEDULES |
||||
Schedule 1.01(a)
|
- | Subsidiary Guarantors | ||
Schedule 2.01
|
- | Lenders and Commitments | ||
Schedule 3.02
|
- | Authorization | ||
Schedule 3.06
|
- | Material Adverse Change | ||
Schedule 3.08
|
- | Subsidiaries | ||
Schedule 3.09
|
- | Litigation; Compliance with Laws | ||
Schedule 3.17
|
- | Environmental Matters | ||
Schedule 3.18
|
- | Insurance | ||
Schedule 3.23
|
- | Financial Advisors | ||
Schedule 4.02
|
- | Default; Event of Default | ||
Schedule 6.01
|
- | Existing Indebtedness | ||
Schedule 6.02
|
- | Existing Liens | ||
EXHIBITS |
||||
Exhibit A
|
- | Form of Administrative Questionnaire | ||
Exhibit B
|
- | Form of Assignment and Acceptance | ||
Exhibit C
|
- | Form of Promissory Note | ||
Exhibit D
|
- | Form of Warrant | ||
Exhibit E-1
|
- | Form of Opinion of Ledgewood | ||
Exhibit E-2
|
- | Form of Opinion of ▇▇▇▇▇▇▇ Coie | ||
Exhibit F
|
- | Form of Registration Rights Agreement | ||
Exhibit G
|
- | Form of Subsidiary Guaranty |
| (1) | Pursuant to Regulation S-K Item 601(b)(2), the Company agrees to furnish supplementally a copy of any omitted schedule to the Securities and Exchange Commission upon request. |