EXHIBIT 10.13
IMPERIAL BANK
Member FDIC
LOAN AGREEMENT
DATED AS OF: JUNE 19, 1998
This Loan Agreement (as amended or supplemented from time to time, "this
Agreement"), dated as of June 19, 1998, is entered into between ROWECOM INC., a
Delaware corporation (herein called "Borrower"), and IMPERIAL BANK, a California
bank (herein called "Bank").
1. EQUIPMENT LOANS.
a. COMMITMENT TO MAKE EQUIPMENT LOANS. Bank hereby commits, subject
to all the terms and conditions of this Agreement (including, without
limitation, the limitations set forth in Section 2 hereof), and prior to the
termination of Bank's commitment to make Equipment Loans hereunder as
hereinafter provided, to make loans to Borrower from time to time ("Equipment
Loans"). The proceeds of each Equipment Loan shall be used by Borrower on the
date of such Equipment Loan to purchase Qualified Equipment or reimburse
Borrower for the purchase of Qualified Equipment (provided that any such
reimbursement shall be for Qualified Equipment purchased within six (6) months
prior to the date hereof). The amount of any Equipment Loan for any Qualified
Equipment shall not exceed the full invoice purchase price of such Qualified
Equipment, less (to the extent included in such invoice purchase price) the
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amount of any sales taxes and freight charges payable in respect of the purchase
of such Qualified Equipment or the delivery thereof to the location specified by
Borrower.
b. REQUESTS FOR EQUIPMENT LOANS. Requests for Equipment Loans
hereunder shall be in writing duly executed by Borrower in a form satisfactory
to Bank and shall contain a certification (i) setting forth, in reasonable
detail, (a) the amount of the requested Equipment Loan, (b) a reasonably
detailed description of the equipment purchased or to be purchased with the
proceeds of such Equipment Loan (including the serial number, model and make of
such equipment, if applicable), and the location at which the equipment will be
located, and (c) a copy of the invoices for the equipment to be financed with
such Equipment Loan, (ii) that, upon the purchase thereof by Borrower, such
equipment will constitute Qualified Equipment, and (iii) that no Default or
Event of Default shall be continuing on the date of such requested Equipment
Loan or after giving effect thereto and to the use of proceeds thereof.
Anything herein to the contrary notwithstanding, Bank shall not be obligated to
make any Equipment Loan to Borrower while any Default or Event of Default shall
be continuing, or if any Default or Event of Default would arise from the making
of such Equipment Loan or the use of the proceeds thereof. Bank shall not be
required to make any Equipment Loan requested by Borrower hereunder unless the
amount of such Equipment Loan (it being understood that the Equipment Loan may
finance several pieces of Qualified Equipment) is equal to at least $10,000, or,
if less, the entire unused amount of Bank's commitment to make Equipment Loans
hereunder.
c. TERMINATION OF EQUIPMENT LOAN COMMITMENT; REPAYMENTS AND
PREPAYMENTS OF EQUIPMENT LOANS. Bank's commitment to make Equipment Loans
hereunder shall terminate on December 19, 1998, and Bank shall have no
obligation hereunder to make any additional Equipment Loans to Borrower after
that date. Bank's commitment to make Equipment Loans hereunder may terminate
prior to December 19, 1998 in accordance with Section 11 or 12 hereof. Bank's
commitment to make Equipment Loans hereunder shall also terminate on the date on
which any mandatory prepayment shall be required pursuant to Section 2 hereof.
Borrower promises to pay to Bank the aggregate principal of all Equipment
Loans outstanding on December 19, 1998 in thirty (30) equal monthly installments
on the last day of each calendar month commencing with the first such
installment payment on December 31, 1998. Borrower promises to pay to Bank the
aggregate principal of all Equipment Loans made after December 31, 1998 and
still outstanding on December 31, 1998 in thirty (30) equal monthly installments
on the last day of each calendar month commencing with the first such
installment payment on December 31, 1998. The outstanding principal amount of
Equipment Loans may be prepaid by Borrower at any time without premium or
penalty. If any Qualified Equipment purchased (or refinanced) with the proceeds
of any Equipment Loan is at any time sold, assigned or otherwise transferred,
Borrower will prepay the outstanding principal of the Equipment Loans, on the
date of such sale, assignment or transfer, in an amount equal to the fair market
value of the net proceeds received by Borrower on the date of such sale,
assignment or transfer after payment of any costs
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associated therewith. Any such optional or mandatory prepayments shall reduce
each of the remaining installment payments of principal on the Equipment Loans
in the inverse order of the maturities hereof.
Notwithstanding anything to the contrary set forth herein, Borrower
promises to pay to Bank the aggregate unpaid principal amount of all Equipment
Loans on June 19, 2001, or such earlier date on which the outstanding principal
of the Equipment Loans shall be declared to be or shall otherwise become due and
payable pursuant to Section 2, 11 or 12 hereof (June 19, 2001 or such earlier
date being called the "Equipment Loan Maturity Date".)
d. EQUIPMENT NOTE. The obligations of Borrower in respect of the
Equipment Loans and any interest accrued thereon shall be evidenced by a
Promissory Note executed and delivered to Bank on the date hereof, in the face
amount of $500,000 ("Equipment Note"). Borrower hereby irrevocably authorizes
Bank to make appropriate notations on any Schedule attached to the Equipment
Note, which notations, if made, shall evidence the date of, the outstanding
principal of, and payments on the Equipment Loans evidenced thereby. Bank's
notations on any Schedule attached to the Equipment Note shall constitute
rebuttable presumptive evidence of the principal amount of Equipment Loans
outstanding, but any failure to record any information on any such Schedule
shall not limit or affect the obligations of Borrower hereunder or under the
Equipment Note to make payments of principal or interest on the Equipment Loans
when due.
2. SPECIAL PAYMENT OBLIGATION. Borrower will prepay all of its
outstanding obligations under this Agreement and the other Loan Documents on the
date that is three business days prior to the date on which Borrower shall pay
or be required to pay any dividend on, or make or be required to make any
distribution on or in respect of, any of its capital stock, or shall make or be
required to make any payment or distribution in respect of the purchase,
repurchase, redemption or other acquisition of any of its capital stock.
3. INTEREST. Borrower promises to pay to Bank interest on the aggregate
outstanding principal amount of Equipment Loans at the rate of one percent
(1.0%) per annum in excess of the Prime Rate. Interest shall be computed at the
above rates on the basis of the actual number of days elapsed divided by 365,
which shall for interest computation purposes be considered one year. Interest
accrued on the outstanding principal of the Equipment Loans shall be payable in
arrears on the first day of each calendar month.
4. DEFAULT INTEREST. Upon the occurrence and during the continuance of
any Event of Default, the entire unpaid principal of the Equipment Note, and, to
the extent permitted by applicable law, all interest, fees, charges and other
sums that may be due and payable under this Agreement or any other Loan
Document, shall bear interest at the rate of five percent (5%) per year in
excess of the rate otherwise applicable to such principal, as it may vary from
time to time, and shall be payable upon demand by Bank.
5. PAYMENTS. All payments required to be made by Borrower to Bank
hereunder or under any of the Loan Documents shall be made at the SANTA ▇▇▇▇▇
REGIONAL OFFICE OF BANK AT ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, on or
prior to 11:00 a.m., San ▇▇▇▇ time, on the due date of such payment, without any
set-off or counterclaim, and in immediately available funds. Any partial
payments of the obligations of Borrower hereunder or under any of the other Loan
Documents, except where this Agreement or any other Loan Document otherwise
specifies, shall be applied first, to any charges, sums or other amounts (other
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than principal or interest) due and payable under the Loan Documents, second, to
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accrued and unpaid interest, and third, to the principal of the Equipment Note.
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6. SECURITY. All of the obligations of Borrower to Bank under this
Agreement, the Equipment Note, and the other Loan Documents shall be secured by
and entitled to the benefit of certain Collateral. Reference is made to the
Loan Documents for a complete description of the Collateral, and of the rights
of Bank with respect thereto.
7. DEFINITIONS. As used in this Agreement, the following terms shall
have the following meanings:
"Accounts" means any right to payment for goods sold or leased, or to
be sold or to be leased, or for services rendered or to be rendered, no matter
how evidenced, including accounts receivable, contract rights, chattel paper,
instruments, purchase orders, notes, drafts, acceptances, general intangibles
and other forms of obligations and receivables. The "amount" of any Accounts
shall be determined in accordance with generally accepted accounting principles.
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"Ancillary Documents" means, collectively, (i) Borrower's Certificate
of Incorporation, as amended and in effect from time to time, and (ii) each
other agreement designated by Borrower and Bank from time to time as an
"Ancillary Document" for purposes of this Agreement and the other Loan
Documents.
"Associated Person" means (i) any person that is an affiliate of
Borrower (including, without limitation, any officer or director of Borrower),
(ii) any Family Member of any individual Associated Person described in clause
(i), (iii) any corporation, partnership, limited liability company or other
entity (other than Borrower) that controls or is controlled by any Associated
Person described in clause (i) or (ii), (iv) any Investor, and (v) any
corporation, partnership, limited liability company or other entity (other than
Borrower) that controls or is controlled by any Investor.
"Cash Proceeds" means, with respect to any Financing, the aggregate
amount of cash proceeds actually received by Borrower from and upon the
completion of the issuance and sale by Borrower of securities in such Financing.
"Change of Control" means any event or series of events (including,
without limitation, any consolidation, merger, issue or sale of capital stock or
other securities, reorganization, voting agreement or otherwise) by which the
holders of Borrower's outstanding capital stock as of the date of this Agreement
shall cease to own and control, both legally and beneficially, with full power
to vote, shares of capital stock of Borrower having voting power equal to at
least sixty percent (60%) of the voting power of all outstanding shares of
capital stock of Borrower having voting power under ordinary circumstances to
elect the Board of Directors of Borrower.
"Collateral" means any and all property of Borrower which is or shall
be assigned to Bank as security or in which Bank now has or hereafter acquires a
security interest to secure the payment and performance of any of the
obligations of Borrower to Bank under this Agreement or any of the other Loan
Documents.
"Default" means any of the events specified in Section 11(i) through
11(xi) hereof, whether or not any requirement for the giving of notice, the
lapse of time, or both, or any other condition has been satisfied.
"Event of Default" is defined in Section 11 hereof.
"Family Member" means, in relation to any individual, any spouse,
parent, grandparent, aunt, uncle, child, grandchild, brother or sister of such
individual, the spouse of any of the foregoing, or any trust established
exclusively for the benefit of any of such persons.
"Financing" means any transaction or series of related transactions
involving the issuance and sale by Borrower at any time after the date hereof of
equity securities of Borrower or securities convertible into, exercisable for or
carrying any rights to purchase or acquire any equity securities of Borrower,
excluding, however, the issuance and sale of capital stock, or options to
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purchase capital stock, to officers, directors or employees of, or consultants
to, Borrower in their respective capacities as such, and the issuance of capital
stock of Borrower pursuant to warrants described in Schedule 9(f) attached
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hereto.
"Indebtedness for Borrowed Money" means, in relation to any person at
any time, (i) all indebtedness of such person for borrowed money (including all
notes payable and drafts accepted representing extensions of credit and all
obligations evidenced by bonds, debentures, notes or other similar instruments
on which interest charges are customarily paid), all indebtedness of such person
relative to the face amount of all letters of credit, whether or not drawn, all
indebtedness of such person constituting capitalized lease obligations, and all
other obligations of such person for the deferred purchase price of property or
services (other than in the ordinary course of business), and (ii) all
contingent obligations of such person in respect of any indebtedness of any
other persons of the kind described in clause (i) of this definition.
"Loan Documents" means, collectively, (i) this Agreement, (ii) each of
the following documents or instruments executed by Borrower and delivered to
Bank in connection with the financing arrangements contemplated hereby: the
Equipment Note and the Security Agreement, and (iii) each other instrument or
agreement, including each of the Subordination Agreements, evidencing,
guarantying or securing any of the obligations of Borrower to Bank under this
Agreement or any other Loan Document, in each case, as amended and in effect
from time to time.
"Materially Adverse Effect" means, in relation to any event,
occurrence or development, (i) a material adverse effect on the business,
property, operations or financial condition of Borrower, (ii) a material adverse
effect on
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the ability of Borrower to perform any of its or his obligations, covenants or
agreements under this Agreement or any other Loan Document, or (iii) a material
impairment of the validity or enforceability of any Loan Document, or a material
impairment of the rights, remedies or benefits available to Bank under any Loan
Document.
"Qualified Equipment" means equipment used or useful in the ordinary
course of business of Borrower that will be owned by Borrower free and clear of
any liens, security interests or other encumbrances, other than security
interests in favor of Bank or otherwise permitted hereunder.
"Qualified Financing" means a Financing involving exclusively the
issuance and sale by Borrower of shares of Borrower's convertible preferred
stock, for or in consideration of Cash Proceeds actually received by Borrower at
the initial closing thereof of $2,000,000 or more.
"Quick Ratio" means, as at any time, the ratio equal to (i) the sum of
(A) all cash and cash equivalents of Borrower and its subsidiaries, plus (B) the
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amount of all of Borrower's Accounts (excluding Accounts from affiliates and
other Accounts which in Borrower's reasonable judgment are not collectable),
divided by (ii) the consolidated current liabilities of Borrower and its
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subsidiaries.
"Subordination Agreements" means the Subordination Agreement, dated as
of the date hereof, executed by ▇▇▇▇ Communications Ltd. in favor of the Bank.
8. FINANCIAL INFORMATION. All financial covenants and financial
information referenced herein shall be interpreted and prepared in accordance
with generally accepted accounting principles applied on a basis consistent with
previous years.
9. WARRANTIES. In order to induce Bank to make loans to Borrower under
this Agreement, Borrower represents and warrants to Bank that (each of which
representations will be deemed repeated as of the date of any Equipment Loan
hereunder as if made on such date):
a. ORGANIZATION; POWER AND AUTHORITY. Borrower is duly organized
and existing in the State of its incorporation; this Agreement and each of the
other Loan Documents has been duly and validly executed and delivered by
Borrower; and the execution, delivery and performance by Borrower of this
Agreement and each other Loan Document are within Borrower's corporate powers,
have been duly authorized by Borrower, and are not in conflict with any
applicable law or with the terms of Borrower's Certificate of Incorporation or
by-laws, as amended, or any indenture, material agreement or undertaking to
which Borrower is a party or by which Borrower is bound or affected. The
obligations of Borrower set forth in the Loan Documents constitute legal, valid
and binding obligations of Borrower, enforceable against Borrower in accordance
with their respective terms, subject, however, to any applicable bankruptcy or
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insolvency laws affecting generally the enforcement of creditors' rights against
Borrower, and to the discretion of any court with respect to the enforcement of
any equitable remedies.
b. LITIGATION. There is no litigation or other proceeding pending
or threatened against or affecting Borrower that could reasonably be expected to
have a Materially Adverse Effect, and Borrower is not in default with respect to
any order, writ, injunction, decree or demand of any court or other governmental
or regulatory authority.
c. FINANCIAL CONDITION.
i. The unaudited balance sheet of Borrower as of September 30, 1997, and
the related unaudited income statement and cash flows of Borrower, and the
unaudited balance sheet of Borrower as of December 31, 1997, and the related
unaudited income statement and cash flows of Borrower (collectively,
"Financials"), copies of which have heretofore been delivered to Bank by
Borrower, and all other statements and data submitted in writing by Borrower to
Bank in connection with this request for credit, and not subsequently
supplemented, modified or amended in writing to Bank, fairly present the
financial condition of Borrower as of the dates thereof and the results of the
operations of Borrower for the periods covered thereby, and have been prepared
in accordance with generally accepted accounting principles on a basis
consistently maintained, subject to the absence of footnotes and to normal end-
of-period adjustments. Since December 31, 1997, there have been no events or
occurrences which, individually or in the aggregate, have had or are reasonably
likely to have a Materially Adverse Effect. Borrower has no knowledge of any
liabilities, contingent or otherwise, at such date not reflected in said balance
sheet which are required under generally accepted accounting principles to be so
reflected, and Borrower has not entered into any special commitments or
substantial contracts since the date of such balance sheet, other than
commitments or contracts entered into in the ordinary and normal course of its
business which could not reasonably be expected to
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have a Materially Adverse Effect. Except for Borrower's obligations under the
Loan Documents, and the Indebtedness for Borrowed Money reflected in Schedule
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10(b)(iv) attached hereto, Borrower has no Indebtedness for Borrowed Money.
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ii. The projected consolidated financial statements of Borrower and its
subsidiaries for the fiscal years ending December 31, 1998, ("Projections"),
copies of which have heretofore been delivered by Bank to Borrower, as the same
have been updated by Borrower verbally or in writing to Bank prior to the date
hereof, have been prepared on the basis of the assumptions accompanying them and
reflect the best good faith estimates by Borrower of the performance of Borrower
for the periods covered thereby, and the financial condition of Borrower as of
the dates thereof, based on such assumptions.
d. TRADEMARKS, PATENTS, COPYRIGHTS. Borrower, as of the date
hereof, possesses all trademarks, service marks, trade names, copyrights,
patents, patent rights, and licenses that are necessary to conduct its business
as now operated, without any known conflict with any trademarks, trade names,
copyrights, patents or license rights of others. Schedule 9(d) sets forth a
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true and complete list and description of each (i) patent or patent application
held or filed by Borrower, (ii) registered trademark or service ▇▇▇▇, or
trademark or service ▇▇▇▇ registration application, held or filed by Borrower,
and (iii) material copyright of Borrower, and, with respect to each such
copyright, whether such copyright has been registered by Borrower or whether
Borrower has applied for any such registration.
e. TAX STATUS. Borrower has no liability for any delinquent state,
local or federal taxes.
f. SUBSIDIARIES; CAPITALIZATION: Schedule 9(f) sets forth a true
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and complete list of authorized capital stock of Borrower of each series or
class, the number of shares of capital stock of each series or class of Borrower
outstanding as of the date hereof, and the holder of such capital stock. Except
as set forth on Schedule 9(f), there are no outstanding options, warrants,
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subscription rights or other rights to purchase or acquire any capital stock of
Borrower, and there are no outstanding securities convertible into or
exchangeable for any capital stock of Borrower. The Borrower has no
subsidiaries.
g. PROPERTIES. Schedule 9(g) sets forth a true and complete list of
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all real property owned or leased by Borrower, the address of such property and
the business conducted by Borrower at such property.
h. AFFILIATE TRANSACTIONS. Except as described in Schedule 9(h)
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attached hereto, Borrower is not a party to or otherwise bound by any written or
oral contracts with any Associated Person. Except as described on Schedule
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9(h), there is no Indebtedness for Borrowed Money owing by Borrower to any
Associated Person, and there is no Indebtedness for Borrowed Money owing by any
Associated Person to Borrower. Borrower has delivered to Bank a true and
complete copy of each contract (or, where such contract is oral, a true and
complete description thereof) described in Schedule 9(h).
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i. OTHER REPRESENTATIONS. Each of the representations and
warranties of Borrower in any of the other Loan Documents is true and correct.
10. COVENANTS.
a. CERTAIN AFFIRMATIVE COVENANTS. Borrower affirmatively covenants
that so long as any obligations of Borrower to Bank under this Agreement or any
other Loan Document remain outstanding or any commitment of Bank to make loans
to Borrower hereunder remains outstanding, Borrower will:
i. BANKING RELATIONSHIPS. Maintain with Bank all of its primary banking
and transaction accounts, including accounts to hold cash or cash equivalent
balances from the proceeds of the issuance of Borrower's securities, upon terms
which are reasonably similar to terms provided to other customers of Bank
similarly situated. Notwithstanding the foregoing, Borrower may use the
transaction accounts currently maintained by Borrower with Bank One for the
Borrower's business consistent with past practices.
ii. REPORTING.
(A) Within 30 days after each month-end, deliver to Bank an accounts
receivable aging reconciled to the general ledger of Borrower, a detailed
accounts payable aging reconciled to Borrower's general ledger, and an inventory
certification outlining both inventory composition and activity for the month.
All the foregoing will be in form satisfactory to Bank.
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(B) Within 30 days after each month-end, deliver to Bank a balance
sheet of Borrower as at the end of such month, together with related statements
of operations and cash flows for such month, in form satisfactory to Bank, all
certified as to fairness of presentation by the chief financial officer of
Borrower.
(C) Within 90 days after the end of each fiscal year of Borrower,
deliver to Bank a balance sheet of Borrower as at the end of such fiscal year,
together with the related statements of operations and cash flows for such
fiscal year, and together with a Cash Flow Statement, prepared on an audited
basis with an unqualified opinion by an independent certified public accountant
selected by Borrower but reasonably acceptable to Bank.
(D) Promptly upon completion thereof, and in any event not later than
March 1 of each fiscal year, deliver to Bank a copy of the annual business plan
and budget for such fiscal year, including budgeted results for each fiscal
quarter and for the fiscal year as a whole, and upon the delivery of any
financial statements relating to any period included in such budget, a summary
comparing the actual financial performance of Borrower during such period to
that shown in the budget.
(E) Deliver to Bank, promptly upon Bank's request, all other
information relating to the affairs or business of Borrower as Bank may
reasonably request.
iii. OTHER NOTICES.
(A) Promptly upon obtaining knowledge thereof, deliver to Bank written
notice of the occurrence of any Default or Event of Default, or of any event
which has had, or is reasonably likely to have, a Materially Adverse Effect.
(B) Until completion of the Qualified Financing, deliver to Bank at
least ten (10) days prior written notice of each Financing and the anticipated
closing date therefor; and promptly upon Borrower's receipt thereof, deliver to
Bank true and complete copies of all term sheets, expressions of interest or
commitment letters for any proposed Financing, including any draft versions
thereof, and any documents or instruments governing any proposed Financing,
including any draft versions thereof, and promptly notify Bank of any material
development (whether positive or negative) in Borrower's discussions with
investors or strategic partners with respect to any Financing (provided that
Borrower shall not be required to disclose any information related to trade
secrets or other confidential technical information of third parties which
Borrower has agreed to keep confidential).
iv. COMPLIANCE CERTIFICATE. Together with the financial statements
described in paragraph (ii)(A) for any month, deliver to Bank a certificate,
prepared and signed by the chief financial officer of Borrower, certifying as to
(A) compliance by Borrower with the covenants set forth in paragraphs 10(b)(i)
and (ii) hereof for the relevant period most recently ended, and showing, in
reasonable detail, the calculations necessary to demonstrate such compliance and
(B) the absence of any Default or Event of Default.
v. RIGHTS AND FACILITIES. Maintain and preserve all rights, franchises,
licenses and other authorities adequate for the conduct of its business;
maintain its properties, equipment and facilities in good order and repair;
conduct its business in an orderly manner without voluntary interruption and
maintain and preserve its corporate existence and good standing.
vi. INSURANCE. Maintain public liability, property damage and workers'
compensation insurance and insurance on all its insurable property including,
but not limited to, the Collateral against fire and other hazards with
responsible insurance carriers to the extent usually maintained by similar
businesses. At the request of Bank, Borrower will provide evidence of property
and casualty and general liability insurance in amounts and types reasonably
acceptable to Bank. Bank will be named as Loss Payee and Additional Insured on
such policies.
vii. TAXES AND OTHER LIABILITIES. Pay and discharge, before the same
become delinquent and before penalties accrue thereon, all taxes, assessments
and governmental charges upon or against it or any of its properties, and all of
its indebtedness and other liabilities, except to the extent and so long as:
(A) the same are being contested in good faith and by appropriate
proceedings in such manner as not to cause any material adverse effect upon its
financial condition or the loss of any right of redemption from any sale
thereunder; and
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(B) it shall have set aside on its books reserves segregated (to the
extent required by generally accepted accounting practice) and adequate with
respect thereto.
viii. RECORDS AND REPORTS. Maintain a system of accounting in accordance
with generally accepted accounting principles on a basis consistently
maintained; and permit Bank's representatives to have access to, and to examine,
its properties, books and records on Borrower's site at all reasonable times.
ix. FURTHER ASSURANCES. Borrower hereby agrees that it will, upon the
request of Bank from time to time at its own expense, promptly execute and
deliver all such further instruments including, documents or agreements that
Bank shall require, and take all such further action that may be necessary or
appropriate, or that Bank may reasonably request, in order to perfect, preserve
or protect any liens granted or purported to be granted under the Loan
Documents, to enable Bank to exercise and enforce any of its rights or remedies
under this Agreement or any of the other Loan Documents or otherwise to carry
out the intent of this Agreement or any of the other Loan Documents.
b. CERTAIN NEGATIVE COVENANTS. Borrower agrees that so long as any
obligations of Borrower to Bank under this Agreement or any of the Loan
Documents remain outstanding, or any commitment of Bank to make any loans to
Borrower remains outstanding, Borrower will not without Bank's written consent:
i. QUICK RATIO. Permit the Quick Ratio, as at the last day of any
month (i) through December 31, 1998, to be less than 1.50:1 and (ii) after
December 31, 1998, to be less than 1.10:1.
ii. CONSOLIDATED NET OPERATING LOSSES. Permit the consolidated net
operating losses for the Borrower and its subsidiaries for any month to exceed
120% of Borrower's consolidated net operating loss for such month reflected in
Borrower's budget, dated April 1998, delivered to Bank prior to the date of this
Agreement.
iii. TYPE OF BUSINESS. Make any material change in the character of its
business.
iv. OUTSIDE INDEBTEDNESS. Create, incur, assume or permit to exist any
Indebtedness for Borrowed Money other than (A) loans from Bank, (B) obligations
existing on the date hereof set forth on Schedule 10(b)(iv), or (C) Indebtedness
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for Borrowed Money of Borrower incurred after the date of this Agreement in the
form of capitalized lease obligations, provided, however, that the aggregate
amount of such capitalized lease obligations shall not exceed $500,000.
v. LIENS AND ENCUMBRANCES. Create, incur, assume or permit to exist any
mortgage, pledge, encumbrance, lien (except for liens for taxes not yet due and
payable or other similar liens incurred in the ordinary course of Borrower's
business) or charge of any kind upon any asset now owned or hereafter acquired
by it, other than (A) liens in Bank's favor, (B) existing liens set forth on
Schedule 10(b)(v), (C) liens of mechanics, warehousemen and other similar liens
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which are either (1) in existence less than 120 days from the date of creation
in respect of obligations not yet due, or (2) being contested in good faith by
Borrower and bonded pending the resolution of such dispute, and (D) liens over
leased equipment securing capitalized lease obligations of Borrower permitted by
Section 10(b)(iv).
vi. LOANS, INVESTMENTS, SECONDARY LIABILITIES. Except as otherwise set
forth below, make any loans or advances to any person or other entity, other
than to employees for relocation, travel or other business expenses in the
normal and ordinary course of its business; or make any investment in the
securities of any person or other entity, other than the United States
Government; or guarantee or otherwise become liable upon the obligations of any
other person or entity, except by endorsement of negotiable instruments for
deposit or collection in the ordinary and normal course of its business; or make
any other investments.
vii. ACQUISITION OR SALE OF BUSINESS; MERGER OR CONSOLIDATION. Purchase or
otherwise acquire the assets or business of any person or other entity; or
liquidate, dissolve, merge or consolidate, or commence any proceedings
therefore; or, except in the ordinary and normal course of its business, sell
(including without limitation the selling of any property or other asset
accompanied by leasing back of same, other than obsolete assets or assets no
longer used or useful in Borrower's business) any property or assets. Upon any
sale of any property or assets not permitted hereunder, Borrower shall pay to
Bank, immediately upon receipt by Borrower, all of the net proceeds of such
sale, for application by Bank to the outstanding obligations of Borrower under
the Loan Documents in such manner as Bank shall deem appropriate.
Page 7
viii. DIVIDENDS, DISTRIBUTIONS, RESTRICTED PAYMENTS. Declare or pay any
dividend or make any other distribution on or in respect of any capital stock of
Borrower or any other securities convertible or exchangeable for any capital
stock of Borrower; make any payment in respect of the purchase, repurchase,
redemption or retirement of any of such capital stock or other securities; or
make any payment, prepayment or other distribution on, or payment or
distribution in respect of the purchase, repurchase, retirement or other
acquisition of, any Indebtedness for Borrowed Money or other liability, of
Borrower to any Associated Person. This paragraph (vii) shall not prohibit the
payment by Borrower of any salaries or bonuses to employees, or the making by
Borrower of any loans or advances to employees, in each case in the normal and
ordinary course of business of Borrower consistent with past practices.
ix. TRANSACTIONS WITH ASSOCIATED PERSONS. Engage in any transactions
with any Associated Person, except transactions in the ordinary and normal
------
course of business which (A) include only terms and conditions that are fair and
equitable to Borrower, (B) do not violate or otherwise conflict with any of the
terms and provisions of this Agreement or any of the Loan Documents, (C) require
the payment of no fees, charges or commissions by Borrower to any Associated
Person, and (D) involve terms no less favorable to Borrower than would be the
terms of a similar transaction with any person other than an Associated Person.
x. CHANGE OF CONTROL TRIGGERING EVENTS. Enter into or undertake any
transaction, arrangement or agreement (whether a consolidation, merger, issue or
sale of capital stock or other securities, reorganization, voting agreement or
otherwise) that will or could reasonably be expected to result in a Change of
Control.
xi FORMATION OF NEW SUBSIDIARIES. Create any new subsidiaries.
xii. AMENDMENT OF CERTAIN DOCUMENTS. Amend, restate or otherwise modify,
or waive any of its rights under, (A) any agreements, instruments or contracts
(whether written or oral) between Borrower and any Associated Person, or (B) any
Ancillary Documents (except for amendments to Borrower's Certificate of
Incorporation upon and in connection with the closing of the Qualified
Financing).
11. EVENTS OF DEFAULT; REMEDIES. Should any of the following events occur
(any such event being referred to as an "Event of Default"): (i) Default by
Borrower in the payment of any obligation of Borrower under this Agreement or
any of the other Loan Documents; (ii) default by Borrower of any agreement,
promise or covenant of Borrower under Section 10.a(iii) or (vi) or 10.b; (iii)
default by Borrower in the due performance or observance of any of the
agreements, promises or covenants of Borrower under any of the Loan Documents,
other than any such agreements, promises or covenants described in clause (i) or
(ii) above, which default shall continue unremedied for ten or more days
following written notice thereof from Bank to Borrower; (iv) any default or
event of default by Borrower under any Ancillary Document; (v) any material
representation or warranty of Borrower set forth in any of the Loan Documents,
or in any certificate, instrument or statement delivered to Bank pursuant to any
Loan Documents, shall be untrue or incorrect in any material respect when made;
(vi) Borrower shall default in the payment when due (whether at stated maturity,
by acceleration or otherwise) of $50,000 or more of any Indebtedness for
Borrowed Money; (vii) Borrower shall default in the observance or performance of
any term, covenant or agreement contained in any instrument governing or
evidencing any Indebtedness for Borrowed Money, and such default shall permit
the holders of such Indebtedness for Borrower Money to declare immediately due
and payable or otherwise accelerate Indebtedness for Borrowed Money in an
aggregate amount exceeding $50,000; (viii) any Change of Control shall occur;
(ix) Borrower shall become insolvent or make an assignment for the benefit of
creditors; (x) Borrower shall apply for or consent to or shall permit or suffer
to exist the voluntary or involuntary appointment of a trustee, receiver,
custodian, or liquidator of all or any material part of its or his property; or
(xi) Borrower shall have commenced against it, or shall voluntarily commence,
any bankruptcy, reorganization or other similar proceeding under bankruptcy or
insolvency laws or any dissolution, winding up or liquidation proceeding, which,
in the case of any such involuntary proceeding, shall have been consented to by
Borrower, as applicable, shall have resulted in entry of an order for relief
against Borrower, as applicable, or shall have remained undismissed,
undischarged or unbonded for a period of more than 60 days; then, in any such
----
event, Bank may, at its option and without demand first made and without further
notice to Borrower, do any one or more of the following: (a) terminate its
obligation to make loans (including, without limitation, any Equipment Loans) to
Borrower; (b) declare all obligations of Borrower to Bank under this Agreement
and the other Loan Documents immediately due and payable; and (c) proceed to
enforce all or any of its rights under any of the Loan Documents or available at
law or in equity. In the event Bank sells or disposes of any Collateral, and a
sufficient sum is not realized from any such sale or disposition to pay all
obligations of Borrower to Bank under this Agreement, any of the other Loan
Documents or otherwise, Borrower shall be liable to Bank for any deficiency.
12. ATTACHMENT, ETC. If any writ of attachment, garnishment, execution or
other legal process be issued against any property of Borrower, or if any
assessment for taxes against Borrower, other than real property,
Page 8
is made by any Federal or State government or any department thereof relating to
an amount unpaid or in dispute in excess of $50,000 and is not withdrawn or
discharged within ten days following knowledge thereof by Borrower, the
commitment of Bank to make loans (including, without limitation, any Equipment
Loans) to Borrower hereunder shall immediately terminate and all obligations
hereunder or under any of the Loan Documents shall immediately become due and
payable without demand, presentment or notice of any kind.
13. SETOFF. Regardless of the adequacy of any Collateral, during the
continuance of any Event of Default, any deposits or other sums credited by or
due from Bank to Borrower, and any securities or other investments or property
of Borrower in the possession of Bank, may be applied to or set off against any
obligations of Borrower to Bank under this Agreement or any other Loan Document.
14. FEES. Borrower shall pay to Bank on the date of the first Equipment
Loan hereunder, a non-refundable arrangement fee in an amount equal to $2000.
15. REIMBURSEMENT OBLIGATIONS. Reimburse Bank upon demand for any and all
legal costs, including reasonable attorneys' fees, and other expenses incurred
in connection with the enforcement of any term or provision of this Agreement,
any of the other Loan Documents and the consideration and/or conduct of any
proposed or actual "workout" of any of the obligations of Borrower under this
Agreement or any of the other Loan Documents, and the structuring, preparation,
negotiation, review, execution, or delivery of this Agreement, any of the other
Loan Documents or amendments or waivers hereunder or thereunder, or any related
documents (whether or not any of the same become effective). ALL SUCH COSTS AND
EXPENSES ACCRUED UNDER THIS AGREEMENT, THE OTHER LOAN DOCUMENTS THROUGH THE DATE
OF THIS AGREEMENT SHALL BE PAID BY BORROWER UPON AND IN CONNECTION WITH BANK'S
EXECUTION AND DELIVERY OF THIS AGREEMENT.
16. INDEMNIFICATION. Indemnify and hold free and harmless Bank and each
of its shareholders, officers, directors, employees, agents, subsidiaries and
affiliates ("Indemnified Parties"), upon demand, from and against any and all
actions, causes of action, suits, losses, costs, liabilities, damages and
expenses (collectively, "Claims") actually incurred in connection with any of
the financing transactions contemplated by any of the Loan Documents
(irrespective of whether such Indemnified Party is a party to the action for
which indemnification is sought), including all reasonable fees and
disbursements of counsel, all amounts paid in settlement (provided that Borrower
will not be responsible for any such amounts paid in any settlement that was not
consented to by Borrower in advance) and all court costs incurred from time to
time by the Indemnified Parties or any of them, and all liabilities and expenses
that may arise under any environmental laws in respect of the Borrower's
properties or operations, provided that Borrower shall not be responsible
--------
hereunder for any Claims arising out of the gross negligence or willful
misconduct of any Indemnified Party.
17. FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of
Bank, in the exercise of any power, right or privilege hereunder or under any
Loan Document, shall operate as a waiver thereof, nor shall any single or
partial exercise thereof or of any other right, power or privilege preclude
other or further exercise thereof or of any other right, power or privilege.
All rights and remedies existing hereunder are cumulative to, not exclusive of,
any other rights or remedies provided in any of the Loan Documents or at law or
in equity.
18. CHOICE OF LAW; WAIVER OF JURY TRIAL. THIS AGREEMENT AND EACH OF THE
OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF CALIFORNIA. BORROWER AGREES THAT ANY SUIT FOR THE
ENFORCEMENT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS MAY BE BROUGHT
IN THE COURTS OF THE STATE OF CALIFORNIA OR ANY FEDERAL COURT SITTING THEREIN,
AND CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF SUCH COURTS AND TO SERVICE OF
PROCESS IN ANY SUCH SUIT BEING MADE UPON BORROWER IN ANY MANNER PERMITTED BY
CALIFORNIA LAW. EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
ACTION OR CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT OR
ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER OR THE PERFORMANCE OF ANY SUCH RIGHTS OR OBLIGATIONS.
19. AMENDMENT AND WAIVER. This Agreement is subject to modification only
by a writing signed by Bank and Borrower. Bank shall not be deemed to have
waived any right hereunder unless such waiver shall be in writing and signed by
Bank. A waiver on any one occasion shall not be construed as a bar to or waiver
of any right on any future occasion.
Page 9
20. DATE OF AGREEMENT. This Agreement is executed by and on behalf of the
parties as of June 19, 1998.
ROWECOM INC. IMPERIAL BANK
"BORROWER" "BANK"
By:_______________________________ By:_______________________________
Title:____________________________ Title:____________________________
By:_______________________________
Title:____________________________
Page 10
AMENDMENT NO. 1 TO LOAN AGREEMENT
---------------------------------
AMENDMENT NO. 1, dated as of September 23, 1998, to the Loan
Agreement, dated as of June 19, 1998 (the "Loan Agreement"), between (i)
--------------
ROWECOM, INC., a Delaware corporation, ("Borrower"), and (ii) IMPERIAL BANK, a
--------
bank organized under the laws of the State of California ("Bank").
----
RECITALS
--------
The Borrower and the Bank have agreed to amend certain of the
provisions contained in the Loan Agreement, all as set forth in this Amendment
No. 1 ("this Agreement").
--------------
Accordingly, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
-----------
SECTION 1.1. DEFINITIONS. Unless otherwise defined herein, terms defined
-----------
in the Loan Agreement are used herein as therein defined.
ARTICLE II
AMENDMENTS
-----------
Effective on and as of September 23, 1998 ("Effective Date"), subject
--------------
always to the provisions of Article III, the Loan Agreement is hereby amended in
-----------
each of the following respects:
SECTION 2.1. REVOLVING LOANS. The following new Section 1A is hereby
--------------- ----------
inserted in the Loan Agreement immediately following Section 1 thereof:
---------
1A. REVOLVING LOANS.
a. COMMITMENT TO MAKE REVOLVING LOANS. Bank hereby commits,
subject to all the terms and conditions of this Agreement, and prior to the
termination of Bank's commitment to make Revolving Loans hereunder as
hereinafter provided, to make loans to Borrower from time to time
("Revolving Loans") in such amounts up to, but not exceeding in the
aggregate unpaid principal balance at any time, the Commitment Amount at
such time. Bank's commitment to make Revolving Loans
-2-
hereunder shall terminate on September 23, 1999, and Bank shall have no
obligation hereunder to make any Revolving Loans to Borrower after that
date. Bank's commitment to make Revolving Loans hereunder may terminate
prior to September 23, 1999 in accordance with Section 11 or 12 hereof.
Bank's commitment to make Revolving Loans hereunder shall also terminate on
the date on which any mandatory prepayment shall be required pursuant to
Section 2 hereof.
---------
b. REQUESTS FOR REVOLVING LOANS. Each request for a Revolving
Loan hereunder shall be in writing duly executed by Borrower in a form
satisfactory to Bank and shall contain a certification (i) setting forth,
in reasonable detail, a list of the Eligible Accounts that will be financed
with the proceeds of such Revolving Loan, and evidence based on the
definition of Eligible Accounts and the Borrowing Base establishing to the
reasonable satisfaction of Bank that Borrower is entitled to the amount of
such Revolving Loan based solely on the listed Eligible Accounts, (ii) that
on the date of such Revolving Loan, and before and after giving effect to
such Revolving Loan, all representations and warranties of Borrower set
forth herein and in the other Loan Documents will be true and correct, and
(iii) that no Default or Event of Default shall be continuing on the date
of such Revolving Loan, either before or after giving effect to such
Revolving Loan or the application by Borrower of the proceeds thereof.
Anything herein to the contrary notwithstanding, Bank shall not be
obligated to make any Revolving Loan to Borrower while any Default or Event
of Default shall be continuing, or if any Default or Event of Default would
arise from the making of such Revolving Loan or the application of the
proceeds thereof. All proceeds of Revolving Loans shall be used by Borrower
for working capital purposes.
c. REPAYMENT OF REVOLVING LOANS. Borrower promises to pay to
Bank the aggregate outstanding principal of each Revolving Loan on the
earliest to occur of (i) the 85/th/ day after the date of such Revolving
Loan, (ii) September 23, 1999, or (iii) such earlier date on which the
outstanding principal of the Revolving Loans shall be declared to be or
shall otherwise become due and payable pursuant to Section 11, 12 or 2
---------- -- -
hereof (September 23, 1999 or such earlier date described in clause (iii)
being called the "Revolving Loan Maturity Date"). The outstanding principal
amount of the Revolving Loans may be prepaid by Borrower at any time.
If the outstanding principal of Revolving Loans at any time exceeds
the Borrowing Base (based on the most recently furnished list of Eligible
Accounts), Borrower will immediately prepay the outstanding Revolving Loans
by the amount of such excess. Borrower and Bank acknowledge that in order
to comply with the provisions of this paragraph, the Borrower will
-3-
be required to pay to Bank approximately eighty percent (80%) of the
proceeds of each Eligible Account, upon receipt thereof by Borrower.
d. REVOLVING NOTE. The obligations of Borrower in respect of
the Revolving Loans and any interest accrued thereon shall be evidenced by
a Promissory Note executed and delivered to Bank on the effective date of
Amendment No. 1, in the face amount of $4,000,000 ("Revolving Note").
Borrower hereby irrevocably authorizes Bank to make appropriate notations
on any Schedule attached to the Revolving Note, which notations, if made,
shall evidence the date of, the outstanding principal of, and payments on
the Revolving Loans evidenced thereby. Bank's notations on any Schedule
attached to the Revolving Note shall constitute rebuttable presumptive
evidence of the aggregate principal amount of the Revolving Loans
outstanding, but any failure to record any information on any such Schedule
shall not limit or affect the obligations of Borrower hereunder or under
the Revolving Note to make payments of principal or interest on the
Revolving Loans when due."
SECTION 2.2. INTEREST. Section 3 of the Loan Agreement is hereby
-------- ---------
amended in each of the following respects:
(a) by adding the following new sentence immediately after the second
sentence of such Section 3:
---------
"Borrower promises to pay to Bank interest on the outstanding
principal amount of each Revolving Loan at the rate of one-half
percent (.5%) per annum in excess of the Prime Rate."; and
(b) by adding the following phrase immediately after the term
"Equipment Loans" in the last sentence of such Section 3:
"and on the outstanding principal of Revolving Loans"
SECTION 2.3. DEFAULT INTEREST. Section 4 of the Loan Agreement is hereby
---------------- ---------
amended by adding the following phrase immediately after the term "Equipment
Loans", in each case where such term is used in Section 4: ", the entire
---------
outstanding principal amount of Revolving Loans".
SECTION 2.4. PARTIAL PAYMENTS. Section 5 of the Loan Agreement is hereby
---------------- ---------
amended by adding the following phrase to the end of the last sentence of such
Section 5: "and the unpaid principal of the Revolving Loans, in such order as
---------
Bank shall determine."
SECTION 2.5. DEFINED TERMS. Section 7 of the Loan Agreement is hereby
------------- ---------
amended in each of the following respects:
-4-
(a) NEW DEFINED TERMS. The following new defined terms are hereby
-----------------
added to such Section 7 in appropriate alphabetical order:
---------
"Accounts" means any right to payment for goods sold or leased,
or to be sold or to be leased, or for services rendered or to be rendered,
no matter how evidenced, including accounts receivable, contract rights,
chattel paper, instruments, purchase orders, notes, drafts, acceptances,
general intangibles and other forms of obligations and receivables.
"Amendment No. 1" means Amendment No. 1 to the Loan Agreement,
dated as of September 23, 1998.
"Borrowing Base" means, at any time, 80% Eligible Accounts at
such time.
"Commitment Amount" means an amount equal to the lesser of the
Maximum Revolving Credit Commitment or the Borrowing Base.
"Eligible Accounts" means all of Borrower's Accounts that (A) are
approved by Bank, and (B) do not include (i) Account balances over seventy-
five (75) days from invoice date, (ii) all Accounts against which the
account debtor or any other person obligated to make payment thereon shall
have asserted any defense, offset, counterclaim or other right to avoid or
reduce the liability represented by the Account (but only to the extent of
such claim, defense or offset), (iii) fifty percent (50%) of otherwise
Eligible Accounts with respect to which 25% or more of the account debtor's
total accounts or obligations outstanding to Borrower are more than 90 days
from invoice date, (iv) for Accounts representing more than 25% of
Borrower's total Accounts, the balance in excess of the 25%, (v) Accounts
with respect to international transactions, unless Bank shall have given
its written consent, in each case, or unless such Account is insured by an
insurance company acceptable to Bank or covered by letters of credit issued
or confirmed by a bank acceptable to Bank, (vi) Accounts with respect to
which the account debtor is an officer, director, shareholder, employee,
subsidiary or affiliate of Borrower, (vii) Accounts where the account
debtor is a seller to Borrower, whereby a potential offset (contra) exists,
(viii) Accounts for consignment or guaranteed sales, (ix) ▇▇▇▇ and hold
Accounts, (x) collection Accounts, (xi) distributor sample Accounts,
whereby accounts are offset by commissions payable, (xii) government
receivables, unless formally assigned to Bank in accordance with the
Federal Assignment of Claims Act or applicable state law, (xiii) Accounts
for pre-▇▇▇▇▇▇▇▇, and (xiv) any Accounts if the account debtor or any other
person liable in connection therewith is insolvent, subject to bankruptcy
or receivership proceedings or has made an assignment for the benefit of
creditors. Eligible Accounts will be designated by Bank and Borrower each
month promptly upon releasing of the Account information
-5-
required by this Agreement, and verified or updated at the time of each
request for Revolving Loans with respect to the Accounts that will be
financed with the proceeds of such Revolving Loan."
"Maximum Revolving Credit Commitment" means $4,000,000.
(b) LOAN DOCUMENTS. The term "Loan Documents" shall include the
--------------
Revolving Note and Amendment No. 1.
SECTION 2.6. ACCOUNTS RECEIVABLE. The first sentence of Section
------------------- -------
10.a.ii.(A) is hereby amended to read in its entirety as follows:
-----------
"(A) Within two business days after the end of each week, deliver to
Bank an aging of Borrower's Eligible Accounts, itemized for each Eligible
Account financed hereunder; and within 30 days after each month-end,
deliver to Bank an accounts receivable aging reconciled to the general
ledger of Borrower, and a detailed accounts payable aging reconciled to
Borrower's general ledger.
SECTION 2.7. INSPECTION. The following new Section 10.a.x is hereby
---------- --------------
added to the Loan Agreement immediately after Section 10.a.ix:
----------------
"x. INSPECTION. Permit, and cause each of its subsidiaries to
----------
permit, Bank or any of its representatives, at reasonable times and
intervals during ordinary business hours and with reasonable advance
notice, to visit any of its offices and properties, discuss financial
matters relating to Borrower or any of its subsidiaries with its officers
and independent public accountants (and the Borrower hereby authorizes its
independent public accountants to discuss its financial matters with Bank
or any of its representatives), and examine and make abstracts or
photocopies from any of its books or other corporate records, all at the
expense of Borrower for any charges imposed by such accountants or for
making such abstracts or photocopies. In furtherance of the foregoing, from
time to time at Bank's request (and as often as the occasion may arise),
Borrower will deliver to its independent public accountants written
authorization and instruction to discuss the financial affairs of Borrower
and its subsidiaries with Bank or any of its representatives."
ARTICLE III
CONDITIONS PRECEDENT
---------------------
Each of the amendments and waivers under the Loan Agreement set forth in
Article II of this Agreement shall be effective and in full force and effect
----------
from and after the Effective Date, provided that each of the following
--------
conditions precedent shall first be satisfied:
-6-
SECTION 3.1. PROMISSORY NOTE. The Bank shall have received a Promissory
---------------
Note, in the form attached hereto as Exhibit A (the "Revolving Note"), duly
------- - ---------
executed by the Borrower.
SECTION 3.2. REPRESENTATIONS AND WARRANTIES. Each of the representations
------------------------------
and warranties made by the Borrower in or pursuant to this Agreement or any of
the other Amendment Documents (as defined below) shall be true and correct in
all material respects on and as of the Effective Date with the same full force
and effect as if made and repeated on and as of such date.
SECTION 3.3. AMENDMENT FEE. The Bank shall have received an amendment fee
-------------
in the amount of $3,000.
SECTION 3.4. CONSENTS AND WAIVERS. The Bank shall have received consents
--------------------
from the holders of subordinated indebtedness to permit the transactions and
arrangements contemplated by this Agreement and the other Amendment Documents,
and an acknowledgement that all Indebtedness under the Loan Document constitutes
Senior Indebtedness under all applicable subordination agreements.
SECTION 3.5. COSTS AND EXPENSES. Borrower shall have paid directly to
------------------
▇▇▇▇▇▇▇ ▇▇▇▇ LLP, in accordance with the Loan Agreement, the legal fees and
expenses incurred by the Bank in connection with the preparation, negotiation
and execution and delivery of this Agreement and the other Amendment Documents,
and the implementation of the transactions contemplated hereby and thereby.
The term "AMENDMENT DOCUMENTS," as used herein, shall mean this Agreement, and
-------------------
the Revolving Note.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND COVENANTS
-----------------------------------------
The Borrower represents and warrants to and covenants with the Bank as
follows:
SECTION 4.1. REPRESENTATIONS IN LOAN DOCUMENTS. Each of the
---------------------------------
representations and warranties made by or on behalf of the Borrower to the Bank
in the Loan Documents was true and correct in all material respects when made
and is true and correct in all material respects on and as of the date hereof,
except (a) as affected by the consummation of the transactions contemplated by
the Loan Documents (including this Agreement) and (b) to the extent that any
such representation or warranty relates by its express terms solely to a prior
date.
-7-
SECTION 4.2. CORPORATE AUTHORITY, ETC. The execution and delivery by the
-------------------------
Borrower of this Agreement and the other Amendment Documents and the performance
by the Borrower of its agreements and obligations under this Agreement and the
other Amendment Documents have been duly and properly authorized by all
necessary action on the part of the Borrower, and do not and will not conflict
with, result in any violation of, or constitute any default under (a) any
provision of any governing document of the Borrower, (b) any contractual
obligation of the Borrower, or (c) any applicable law. The Borrower has
delivered to the Bank true and complete copies of resolutions of its Board of
Directors and all necessary consents of stockholders with respect to the
transactions contemplated by the Amendment Documents.
SECTION 4.3. VALIDITY, ETC. This Agreement and each of the other
-------------
Amendment Documents has been duly executed and delivered by the Borrower and
constitutes the legal, valid and binding obligation of the Borrower, enforceable
in accordance with its terms, except as such enforceability may be limited by
bankruptcy, reorganization, insolvency, moratorium or other similar laws at the
time in effect affecting the enforceability of the rights of creditors generally
and to general equitable principles. The Borrower hereby ratifies and confirms
all of its obligations to the Bank in all respects.
SECTION 4.4. NO DEFAULTS. After giving effect to this Agreement, no
-----------
Defaults or Events of Default are or will be continuing under the Loan
Agreement.
ARTICLE V
PROVISIONS OF GENERAL APPLICATION
---------------------------------
Except as otherwise expressly provided by this Agreement, all of the terms,
conditions and provisions of the Loan Agreement and each of the other Loan
Documents, and all rights and remedies of the Bank under the Loan Agreement and
the other Loan Documents, shall remain unaltered. This Agreement is a Loan
Document for all purposes of the Loan Agreement. This Agreement and the rights
and obligations hereunder of each of the parties hereto shall in all respects be
construed in accordance with and governed by the internal laws of the State of
California. This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, but all of such counterparts
shall together constitute but one and the same agreement. In making proof of
this Agreement, it shall not be necessary to produce or account for more than
one counterpart hereof signed by each of the parties hereto.
-8-
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT NO.
1 to be executed by their respective authorized officers as of the date first
above written.
THE BORROWER:
------------
ROWECOM, INC.
By:____________________________
Name:
Title:
THE BANK:
--------
IMPERIAL BANK
By:____________________________
Name:
Title: