“Dollars” or “$” means lawful currency of the United States of America.
“Drawing Fee” has the meaning ascribed to it inSection 2.2(c).
“Environmental Laws” means all applicable federal, state, local and foreign laws, statutes, ordinances, codes, rules, standards and regulations, now or hereafter in effect, and any applicable judicial or administrative interpretation thereof, including any applicable judicial or administrative order, consent decree, order or judgment, imposing liability or standards of conduct for or relating to the regulation and protection of human health, safety, the environment and natural resources (including ambient air, surface water, groundwater, wetlands, land surface or subsurface strata, wildlife, aquatic species and vegetation). Environmental Laws include the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. §§ 9601 et seq.) (“CERCLA”); the Hazardous Materials Transportation Authorization Act of 1994 (49 U.S.C. §§ 5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.); the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.); the Toxic Substance Control Act (15 U.S.C. §§ 2601 et seq.); the Clean Air Act (42 U.S.C. §§ 7401 et seq.); the Federal Water Pollution Control Act (33 U.S.C. §§ 1251 et seq.); the Occupational Safety and Health Act (29 U.S.C. §§ 651 et seq.); and the Safe Drinking Water Act (42 U.S.C. §§ 300(f) et seq.), and any and all regulations promulgated thereunder, and all analogous state, local and foreign counterparts or equivalents and any transfer of ownership notification or approval statutes.
“Environmental Permits” means all permits, licenses, authorizations, certificates, approvals or registrations required by any Governmental Authority under any Environmental Laws.
“Equipment” means all “equipment,” as such term is defined in the Code, now owned or hereafter acquired by any Borrower, wherever located and, in any event, including all of the Borrowers’ machinery and equipment, including processing equipment, conveyors, machine tools, data processing and computer equipment, including embedded software and peripheral equipment and all engineering, processing and manufacturing equipment, office machinery, furniture, materials handling equipment, tools, attachments, accessories, automotive equipment, trailers, trucks, forklifts, molds, dies, stamps, motor vehicles, rolling stock and other equipment of every kind and nature, trade fixtures and fixtures not forming a part of real property, together with all additions and accessions thereto, replacements therefor, all parts therefor, all substitutes for any of the foregoing, fuel therefor, and all manuals, drawings, instructions, warranties and rights with respect thereto, and all products and proceeds thereof and condemnation awards and insurance proceeds with respect thereto.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any regulations promulgated thereunder.
“ERISA Affiliate” means, with respect to any Borrower, any trade or business (whether or not incorporated) that, together with such Borrower, are treated as a single employer within the meaning of Sections 414(b), (c) or (m) of the IRC.
“ERISA Event” means, with respect to any Borrower or any ERISA Affiliate, (a) any event described in Section 4043(c) of ERISA with respect to a Title IV Plan; (b) the withdrawal
of any Borrower or ERISA Affiliate from a Title IV Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA; (c) the complete or partial withdrawal of any Borrower or any ERISA Affiliate from any Multiemployer Plan; (d) the filing of a notice of intent to terminate a Title IV Plan or the treatment of a plan amendment as a termination under Section 4041 of ERISA; (e) the institution of proceedings to terminate a Title IV Plan or Multiemployer Plan by the PBGC; (f) the failure by any Borrower or ERISA Affiliate to make when due required contributions to a Multiemployer Plan or Title IV Plan unless such failure is cured within 30 days; (g) any other event or condition that might reasonably be expected to constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan or Multiemployer Plan or for the imposition of liability under Section 4069 or 4212(c) of ERISA; (h) the termination of a Multiemployer Plan under Section 4041A of ERISA or the reorganization or insolvency of a Multiemployer Plan under Section 4241 or 4245 of ERISA; or (i) the final determination that a Qualified Plan’s qualification or tax exempt status should be revoked; or (j) the termination of a Plan described in Section 4064 of ERISA.
“Event of Default” has the meaning ascribed to it inSection 8.1.
“Facility Fee” has the meaning ascribed to it inSection 2.2(a).
“Fees” means any and all fees payable to Investment Manager or the L/C Guarantors pursuant to the Agreement or any of the other Loan Documents, including without limitation, the Facility Fees, Success Fee and Drawing Fee.
“Financial Statements” means the consolidated and consolidating income statements, statements of cash flows and balance sheets of the Borrowers and their Subsidiaries.
“Fixtures” means all “fixtures” as such term is defined in the Code, now owned or hereafter acquired by any Borrower.
“GAAP” means generally accepted accounting principles in the United States of America, consistently applied.
“General Intangibles” means “general intangibles,” as such term is defined in the Code, now owned or hereafter acquired by any Borrower, including all right, title and interest that any Borrower may now or hereafter have in or under any Contractual Obligation, all payment intangibles, customer lists, Licenses, Copyrights, Trademarks, Patents, and all applications therefor and reissues, extensions or renewals thereof, rights in Intellectual Property, interests in partnerships, joint ventures and other business associations, licenses, permits, copyrights, trade secrets, proprietary or confidential information, inventions (whether or not patented or patentable), technical information, procedures, designs, knowledge, know how, software, data bases, data, skill, expertise, experience, processes, models, drawings, materials and records, goodwill (including the goodwill associated with any Trademark or Trademark License), all rights and claims in or under insurance policies (including insurance for fire, damage, loss and casualty, whether covering personal property, real property, tangible rights or intangible rights, all liability, life, key man and business interruption insurance, and all unearned premiums), uncertificated securities, chooses in action, deposit, checking and other bank accounts, rights to receive tax refunds and other payments, rights to receive dividends, distributions, cash,
instruments and other property in respect of or in exchange for pledged Stock and Investment Property, rights of indemnification, all books and records, correspondence, credit files, invoices and other papers, including all tapes, cards, computer runs and other papers and documents in the possession or under the control of any Borrower or any computer bureau or service company from time to time acting for any Borrower.
“Governmental Authority” means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
“Guaranteed Indebtedness” means, as to any Person, any obligation of such Person guaranteeing, providing comfort or otherwise supporting any Indebtedness, lease, dividend, or other obligation (“primary obligation”) of any other Person (the “primary obligor”) in any manner, including any obligation or arrangement of such Person to (a) purchase or repurchase any such primary obligation, (b) advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency or any balance sheet condition of the primary obligor, (c) purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation, (d) protect the beneficiary of such arrangement from loss (other than product warranties given in the ordinary course of business) or (e) indemnify the owner of such primary obligation against loss in respect thereof. The amount of any Guaranteed Indebtedness at any time shall be deemed to be an amount equal to the lesser at such time of (x) the stated or determinable amount of the primary obligation in respect of which such Guaranteed Indebtedness is incurred and (y) the maximum amount for which such Person may be liable pursuant to the terms of the instrument embodying such Guaranteed Indebtedness, or, if not stated or determinable, the maximum reasonably anticipated liability (assuming full performance) in respect thereof.
“Hazardous Material” means any substance, material or waste that is regulated by, or forms the basis of liability now or hereafter under, any Environmental Laws, including any material or substance that is (a) defined as a “solid waste,” “hazardous waste,” “hazardous material,” “hazardous substance,” “extremely hazardous waste,” “restricted hazardous waste,” “pollutant,” “contaminant,” “hazardous constituent,” “special waste,” “toxic substance” or other similar term or phrase under any Environmental Laws, or (b) petroleum or any fraction or by product thereof, asbestos, polychlorinated biphenyls (PCB’s), or any radioactive substance.
“Indebtedness” means, with respect to any Person, without duplication (a) all indebtedness of such Person for borrowed money or for the deferred purchase price of property payment for which is deferred six (6) months or more, but excluding obligations to trade creditors incurred in the ordinary course of business that are unsecured and not overdue by more than six (6) months unless being contested in good faith, (b) all reimbursement and other obligations with respect to letters of credit, bankers’ acceptances and surety bonds, whether or not matured, (c) all obligations evidenced by notes, bonds, debentures or similar instruments, (d) all indebtedness created or arising under any conditional sale or other title retention agreement with respect to property acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of
such property), (e) all Capital Lease Obligations, (f) all obligations of such Person under commodity purchase or option agreements or other commodity price hedging arrangements, in each case whether contingent or matured, (g) all obligations of such Person under any foreign exchange contract, currency swap agreement, interest rate swap, cap or collar agreement or other similar agreement or arrangement designed to alter the risks of that Person arising from fluctuations in currency values or interest rates, in each case whether contingent or matured, (h) all Indebtedness referred to above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any Lien upon or in property or other assets (including accounts and contract rights) owned by such Person, even though such Person has not assumed or become liable for the payment of such Indebtedness, (i) “earnouts” and similar payment obligations, except for such obligations which are payable solely in Stock, (j) Contingent Obligations, and (k) the Obligations.
“Indemnitees” has the meaning ascribed to it inSection 10.1.
“Intellectual Property” means any and all Licenses, Patents, Copyrights, Trademarks, and the goodwill associated with such Trademarks.
“Intellectual Property Security Agreement” means the Intellectual Property Security Agreement made in favor of Investment Manager, for the benefit of itself and the L/C Guarantors, by the Borrowers.
“Inventory” means any “inventory,” as such term is defined in the Code, now owned or hereafter acquired by any Borrower, wherever located, including inventory, merchandise, goods and other personal property that are held by or on behalf of any Borrower for sale or lease or are furnished or are to be furnished under a contract of service, or that constitute raw materials, work in process, finished goods, returned goods, supplies or materials of any kind, nature or description used or consumed or to be used or consumed in Borrower’s business or in the processing, production, packaging, promotion, delivery or shipping of the same, including all supplies and embedded software.
“Investment Manager” means Columbia Partners, L.L.C. Investment Management in its capacity as Investment Manager for the L/C Guarantors or its successor appointed pursuant toSection 9.3.
“Investment Property” means all “investment property,” as such term is defined in the Code, now owned or hereafter acquired by any Borrower, wherever located, including: (i) all securities, whether certificated or uncertificated, including stocks, bonds, interests in limited liability companies, partnership interests, treasuries, certificates of deposit, and mutual fund shares; (ii) all securities entitlements of any Borrower, including the rights of any Borrower to any securities account and the financial assets held by a securities intermediary in such securities account and any free credit balance or other money owing by any securities intermediary with respect to that account; (iii) all securities accounts of any Borrower; (iv) all commodity contracts of any Borrower; and (v) all commodity accounts held by any Borrower.
“IRC” means the Internal Revenue Code of 1986, as amended, and all regulations promulgated thereunder.
“IRR” means, with respect to the calculation of a Drawing Fee then due or owing pursuant to the terms of this Agreement, a referenced interest rate that, when used as a discount rate, causes (a) the net present value (as of the date of a Drawing) of the aggregate payments made by the Borrowers of principal, any accrued interest and the applicable Drawing Fee from the date of such Drawing through the payment date to which the applicable Drawing Fee relates (excluding, for avoidance of doubt, all others payments, including the Facility Fee, Success Fee and other fees and expenses),to equal (b) the net present value (as of the date of such Drawing) of principal of the Letter(s) of Credit provided by the L/C Guarantor from the date of such Drawing through the payment date to which the applicable Drawing Fee relates.
“IRS” means the Internal Revenue Service.
“L/C Guarantor(s)” has the meaning set forth in thePreamble.
“Letters of Credit” has the meaning ascribed to it in theRecitals.
“License” means any Copyright License, Patent License, Trademark License or other license of rights or interests now held or hereafter acquired by any Borrower.
“Lien” means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the Code or comparable law of any jurisdiction).
“Liquidity Event” means the issuance after the Closing Date by any Borrower of indebtedness for borrowed money or the sale by any Borrower of equity securities in a public offering or in a private sale to a Person that is not a Borrower for cash in which such Borrower receives aggregate net proceeds in excess of Twenty-Five Million Dollars ($25,000,000); provided none of the following events shall constitute a Liquidity Event: (i) the issuance of equity securities in connection with MTM’s Series A Preferred Stock (including upon conversion of such stock, the payment of “in kind” dividends, the issuance of shares upon the exercise of warrants or the operation of anti-dilution provisions), (ii) the issuance, vesting or exercise of board, employee, management and consultant equity incentives, (iii) the incurrence by Borrowers of Senior Indebtedness, the Obligations, or short term inventory, receivables or vendor financing, (iv) the issuance of acquisition consideration and related earn-outs, notes and similar payments, or (v) the issuance of securities upon the exercise of any warrant issued by MTM on or prior to the Closing Date.
“Litigation” has the meaning ascribed to it inSection 7.1(d).
“Loan Documents” means the Agreement, the Collateral Documents and all other agreements, instruments, documents and certificates executed and delivered to, or in favor of, Investment Manager or the L/C Guarantors and including all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether now or hereafter executed by or on behalf of any Borrower and delivered to Investment Manager or the L/C
Guarantors in connection with the Agreement or the transactions contemplated hereby. Any reference in the Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to the Agreement or such Loan Document as the same may be in effect at any and all times such reference becomes operative.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, operations, prospects or financial or other condition of Borrowers taken as a whole, (b) the Borrowers’ ability to pay any of the Reimbursement Payments or pay, or perform any of the other Obligations in accordance with the terms of the Agreement and the other Loan Documents, (c) the Collateral or Investment Manager’s Liens, on behalf of itself and the L/C Guarantors, on the Collateral or the priority of such Liens, or (d) Investment Manager’s or the L/C Guarantors’ rights and remedies under the Agreement and the other Loan Documents.
“Material Agreement” means any written contract, agreement, instrument, commitment or other written arrangement to which any Borrower is a party, the absence of which would reasonably be expected to have a Material Adverse Effect (other than the Loan Documents).
“Multiemployer Plan” means a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA, and to which the Borrowers or any ERISA Affiliate is making, is obligated to make or has made or been obligated to make, contributions on behalf of participants who are or were employed by any of them.
“Obligations” means all loans, advances, debts, liabilities and obligations, for the performance of covenants, tasks or duties or for payment of monetary amounts (whether or not such performance is then required or contingent, or such amounts are liquidated or determinable), owing by any Borrower to Investment Manager or the L/C Guarantors, and all covenants and duties regarding such amounts, of any kind or nature, present or future, whether or not evidenced by any note, agreement or other instrument, in each case, arising under the Agreement or any of the other Loan Documents. This term includes all principal, interest (including all interest that accrues after the commencement of any case or proceeding by or against any Borrower in bankruptcy, whether or not allowed in such case or proceeding), Fees, Charges, expenses, attorneys’ fees and any other sum chargeable to any Borrower under the Agreement or any of the other Loan Documents.
“Patent License” means rights under any written agreement now owned or hereafter acquired by any Borrower granting any right with respect to any invention on which a Patent is in existence.
“Patents” means all of the following in which any Borrower now holds or hereafter acquires any interest: (a) all letters patent of the United States or any other country, all registrations and recordings thereof, and all applications for letters patent of the United States or of any other country, including registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any State or any other country, and (b) all reissues, continuations, continuations in part or extensions thereof.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means a Plan described in Section 3(2) of ERISA.
“Perfection Certificate” shall have the meaning ascribed to it in the Security Agreement.
“Permitted Distributions” shall mean (a) dividends declared and paid in cash by any subsidiary of MTM to MTM, and by any subsidiary of a Borrower (other than MTM) to such Borrower; (b) purchases, acquisitions, redemptions, retirements and dividends payable solely in stock or other equity interests of any Borrower and (c) cash dividends payable with respect to MTM’s Series A Preferred Stock.
“Permitted Encumbrances” means the following encumbrances: (a) all Liens existing on the Closing Date on Equipment and Real Estate; (b) Purchase Money Liens; (c) statutory Liens of landlords and Liens of carriers, warehousemen, bailees, mechanics, materialmen and other like Liens imposed by law, created in the ordinary course of business and securing amounts not yet due (or which are being contested in good faith, by appropriate proceedings or other appropriate actions which are sufficient to prevent imminent foreclosure of such Liens), and with respect to which adequate reserves or other appropriate provisions are being maintained by the applicable Borrower in accordance with GAAP; (d) deposits made (and the Liens thereon) in the ordinary course of business of the applicable Borrower (including, without limitation, security deposits for leases, indemnity bonds, surety bonds and appeal bonds) in connection with workers’ compensation, unemployment insurance and other types of social security benefits or to secure the performance of tenders, bids, contracts (other than for the repayment or guarantee of borrowed money or purchase money obligations), statutory obligations and other similar obligations arising as a result of progress payments under government contracts; (e) Liens granted to Investment Manager, for the benefit of Investment Manager and the L/C Guarantors, by each Borrower; (f) Liens of judgment creditors, provided that such Liens do not exceed $100,000 in the aggregate at any time (other than Liens bonded or insured to the reasonable satisfaction of Investment Manager); (g) Permitted Tax Liens; (h) easements (including, without limitation, reciprocal easement agreements and utility agreements), encroachments, minor defects or irregularities in title, variation and other restrictions, charges or encumbrances (whether or not recorded) affecting the Real Estate, if applicable, and which in the aggregate (i) do not materially interfere with the occupation, use or enjoyment by any Borrower of its business or property so encumbered and (ii) in the reasonable business judgment of Investment Manager, do not materially and adversely affect the value of such Real Estate; (i) Liens granted by one or more of the Borrowers on personal and/or real property to secure the payment and performance of Senior Indebtedness; (j) Liens granted by one or more of the Borrowers on personal and/or real property to secure the payment and performance of Subordinated Debt; and (k) bid and performance bonds and Liens in respect thereof in the ordinary course of business and in an aggregate amount not to exceed $5,000,000 outstanding at any time, on reasonable and customary terms.
“Permitted Indebtedness” means (a) current Indebtedness maturing in less than one year and incurred in the ordinary course of business for raw materials, supplies, equipment, services, Taxes or labor; (b) Indebtedness secured by Purchase Money Liens; (c) Indebtedness arising under this Agreement; (d) deferred Taxes and other expenses incurred in the ordinary course of business; (e) Subordinated Debt; (f) Senior Indebtedness; (g) other Indebtedness existing on the Closing Date and listed onSchedule 6.2 attached hereto; (h) guarantees of Capital Leases; and (i) unsecured guarantees by any Borrower of any Indebtedness or other obligation of any other
Borrower permitted hereunder or of obligations under any real property lease for premises occupied by any Borrower; (j) bid and performance bonds in the ordinary course of business and in an aggregate amount not to exceed $5,000,000 outstanding at any time, on reasonable and customary terms; and (k) all reimbursement and other obligations with respect to letters of credit, bankers’ acceptances and surety bonds, whether or not matured.
“Permitted Tax Liens” means liens for Taxes not due and payable and liens for Taxes that the applicable Borrower is contesting in good faith, by appropriate proceedings which are sufficient to prevent imminent foreclosure of such liens, and with respect to which adequate reserves are being maintained by such Borrower in accordance with GAAP;provided that in either case, such liens (a) are not filed of record in any public office, (b) other than with respect to Real Estate, are not senior in priority to the liens granted by such Borrower to Investment Manager, for the benefit of Investment Manager and the L/C Guarantors, or (c) do not secure taxes owed to the United States of America (or any department or agency thereof) or any State or State authority, if applicable State law provides for the priority of tax liens in a manner similar to the laws of the United States of America.
“Person” means any individual, sole proprietorship, partnership, joint venture, trust, unincorporated organization, association, corporation, limited liability company, institution, public benefit corporation, other entity or government (whether federal, state, county, city, municipal, local, foreign, or otherwise, including any instrumentality, division, agency, body or department thereof).
“Plan” means, at any time, an “employee benefit plan,” as defined in Section 3(3) of ERISA (other than a Title IV Plan), that any Borrower or any ERISA Affiliate maintains, contributes to or has an obligation to contribute to on behalf of participants who are or were employed by such Borrower.
“Pledge Agreements” means any pledge agreement in favor of Investment Manager or the L/C Guarantors, including without limitation, the Stock Pledge Agreement.
“Purchase Money Liens” shall mean (i) liens on any item of Equipment acquired by the applicable Borrower after the date of this Agreement,provided that (a) each such lien shall attach only to the Equipment acquired, (b) a description of the Equipment so acquired is furnished by such Borrower to Investment Manager, (ii) liens on any item of Equipment acquired by the applicable Borrower after the date of this Agreement arising in connection with a Capital Lease of such Equipment,provided, that each such lien shall attach only to the Equipment leased and (iii) any other liens incurred to secure the unpaid purchase price of assets and which the applicable Borrower is permitted to incur pursuant to the terms of its Senior Indebtedness.
“Qualified Plan” means a Pension Plan that is intended to be tax-qualified under Section 401(a) of the IRC.
“Real Estate” has the meaning ascribed to it inSection 4.9.
“Release” means any release, threatened release, spill, emission, leaking, pumping, pouring, emitting, emptying, escape, injection, deposit, disposal, discharge, dispersal, dumping, leaching or migration of Hazardous Material in the indoor or outdoor environment, including the
movement of Hazardous Material through or in the air, soil, surface water, ground water or property.
“Required Insurance” has the meaning ascribed to it inSection 5.3.
“Securities Act” means the Securities Act of 1933, as amended.
“Security Agreement” means the Security Agreement of even date herewith entered into by and among Investment Manager, on behalf of itself and the L/C Guarantors, and the Borrowers.
“Senior Indebtedness” means, collectively, Indebtedness to CDF and the other lenders named in the CDF Agreement and any renewals, refinancings or replacements of such Indebtedness so long as the aggregate principal amount of such Indebtedness does not at any time exceed $37,000,000.
“Senior Lenders” means each lender with respect to any Senior Indebtedness.
“Stock” means all shares, options, warrants, general or limited partnership interests, membership interests or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or equivalent entity whether voting or nonvoting, including common stock, preferred stock or any other “equity security” (as such term is defined in Rule 3a11 1 of the General Rules and Regulations promulgated by the Securities and Exchange Commission under the Securities Exchange Act of 1934).
“Stockholder” means, with respect to any Person, each holder of Stock of such Person.
“Stock Pledge Agreement” means that certain Stock Pledge Agreement dated of even date herewith, executed by MTM in favor of Investment Manager.
“Subordinated Debt” means any Indebtedness of any Borrower subordinated to the Obligations in a manner and form reasonably satisfactory to Investment Manager and the L/C Guarantors in their sole discretion, as to right and time of payment and as to any other rights and remedies thereunder.
“Subordination Agreement” means that certain Subordination Agreement dated as of the date hereof, executed by Investment Manager in favor of CDF, as administrative agent for certain lenders, as the same may be amended, modified, supplemented or restated from time to time, or any other subordination or intercreditor agreement entered into between Investment Manager and any holder of Senior Indebtedness in replacement thereof.
“Subsidiary” means, with respect to any Person, (a) any corporation of which an aggregate of more than 50% of the outstanding Stock having ordinary voting power to elect a majority of the board of directors of such corporation (irrespective of whether, at the time, Stock of any other class or classes of such corporation shall have or might have voting power by reason of the happening of any contingency) is at the time, directly or indirectly, owned legally or beneficially by such Person or one or more Subsidiaries of such Person, or with respect to which any such Person has the right to vote or designate the vote of more than 50% of such Stock whether by proxy, agreement, operation of law or otherwise, and (b) any partnership or limited
liability company in which such Person and/or one or more Subsidiaries of such Person shall have an interest (whether in the form of voting or participation in profits or capital contribution) of more than 50% or of which any such Person is a general partner or may exercise the powers of a general partner. Unless the context otherwise requires, each reference to a Subsidiary shall be a reference to a Subsidiary of a Borrower.
“Taxes” shall mean all federal, state, municipal and other governmental taxes, levies, charges, claims and assessments which are or may be owed or collected by each Borrower with respect to its business, operations, Collateral or otherwise.
“Termination Date” means the date on which both (a) the Reimbursement Payment and all Fees under this Agreement have been indefeasibly repaid in full, and (b) all other Obligations under this Agreement and the other Loan Documents have been completely discharged.
“Title IV Plan” means a Pension Plan including a Multiemployer Plan, that is covered by Title IV of ERISA.
“Trademark License” means rights under any written agreement now owned or hereafter acquired by any Borrower granting any right to use any Trademark.
“Trademarks” means all of the following now owned or hereafter adopted or acquired by any Borrower: (a) all trademarks, trade names, corporate names, business names, trade styles, service marks, logos, internet domain names, other source or business identifiers, prints and labels on which any of the foregoing have appeared or appear, designs and general intangibles of like nature (whether registered or unregistered), all registrations and recordings thereof, and all applications in connection therewith, including registrations, recordings and applications in the United States Patent and Trademark Office or in any similar office or agency of the United States, any state or territory thereof, or any other country or any political subdivision thereof; (b) all reissues, extensions or renewals thereof; and (c) all goodwill associated with or symbolized by any of the foregoing.
“Welfare Plan” means a Plan described in Section 3(1) of ERISA.
Rules of construction with respect to accounting terms used in the Agreement or the other Loan Documents shall be as set forth or referred to in thisAnnex A. All other undefined terms contained in any of the Loan Documents which are defined in Article 9 of the Code shall, unless the context indicates otherwise, have the meanings provided in Article 9 of the Code. Unless otherwise specified, references in the Agreement or any of the Appendices to a Section, subsection or clause refer to such Section, subsection or clause as contained in the Agreement. The words “herein,” “hereof” and “hereunder” and other words of similar import refer to the Agreement as a whole, including all Annexes, Exhibits and Schedules, as the same may from time to time be amended, restated, modified or supplemented, and not to any particular section, subsection or clause contained in the Agreement or any such Annex, Exhibit or Schedule.
Wherever from the context it appears appropriate, each term stated in either the singular or plural shall include the singular and the plural, and pronouns stated in the masculine, feminine or neuter gender shall include the masculine, feminine and neuter genders. The words “including”, “includes” and “include” shall be deemed to be followed by the words “without
limitation”; the word “or” is not exclusive; references to Persons include their respective successors and assigns (to the extent and only to the extent permitted by the Loan Documents) or, in the case of governmental Persons, Persons succeeding to the relevant functions of such Persons; and all references to statutes and related regulations shall include any amendments of the same and any successor statutes and regulations. Whenever any provision in any Loan Document refers to the knowledge (or an analogous phrase) of any Borrower or Borrowers, such words are intended to signify that any Borrower has actual knowledge or awareness of a particular fact or circumstance or that any Borrower, if it had exercised reasonable diligence, would have known or been aware of such fact or circumstance.
INDEX OF APPENDICES
| | |
Annexes | | |
| | |
Annex A | - | Definitions |
| | |
Exhibits | | |
| | |
Exhibit 3.1(d) | - | Opinion |
| | |
Schedules | | |
| | |
Schedule of L/Cs | | |
Schedule 4.3(a) | - | Jurisdictions of Organization and Qualifications |
Schedule 4.3(b) | - | Capitalization |
Schedule 4.6 | - | Investigations and Audits |
Schedule 4.7 | - | Litigation |
Schedule 4.13 | - | Material Agreements Defaults/Breaches |
Schedule 6.2 | - | Indebtedness |
Schedule 6.12 | - | Business Description |
