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EXHIBIT 10.47
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iBASIS, INC.
iBASIS GLOBAL, INC.
iBASIS SECURITIES CORPORATION, INC.
SECURITY AGREEMENT
Dated as of February 21, 2003
U.S. BANK NATIONAL ASSOCIATION, AS COLLATERAL AGENT
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TABLE OF CONTENTS
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1. Reference to Exchange Agreement; Definitions; Certain Rules of Construction.............1
2. Certain Exhibits........................................................................2
2.1. Agreements Relating to Financing Debt, Real Property, etc......................2
2.2. Organization and Business......................................................3
2.3. Quarterly Updates..............................................................3
3. Security................................................................................4
3.1. Credit Security................................................................4
3.2. Additional Credit Security.....................................................7
3.3. Certain Covenants with Respect to Credit Security..............................7
3.4. Administration of Credit Security.............................................11
3.5. Right to Realize upon Credit Security.........................................12
3.6. Custody of Credit Security....................................................16
4. Defeasance.............................................................................16
5. Successors and Assigns.................................................................16
6. Notices................................................................................16
7. Reimbursement of Expenses..............................................................17
8. Venue; Service of Process. Each of the Borrower, the Guarantor and the Agent:..........17
9. WAIVER OF JURY TRIAL...................................................................18
10. General................................................................................18
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iBASIS, INC.
iBASIS GLOBAL, INC.
SECURITY AGREEMENT
This Agreement, dated as of February 21, 2003, is among iBasis, Inc., a
Delaware corporation (the "COMPANY"), iBasis Global, Inc., a Delaware
corporation, ("iBASIS GLOBAL", and collectively with the Company, the
"BORROWER"), iBasis Securities Corporation, a Massachusetts Corporation (the
"GUARANTOR") and U.S. Bank National Association, as Collateral Agent (the
"AGENT") for the Holders under the Exchange Agreement (as defined below). The
parties agree as follows:
1. REFERENCE TO EXCHANGE AGREEMENT; DEFINITIONS; CERTAIN RULES OF CONSTRUCTION.
Reference is made to the Securities Exchange Agreement dated as of the date
hereof, as from time to time in effect (the "EXCHANGE AGREEMENT"), among the
Borrower, the Guarantor, JMG Triton Offshore Fund Limited CITCO and each of the
other Exchanging Holders (as defined therein) and the Collateral Agent.
Capitalized terms defined in the Exchange Agreement and not otherwise defined
herein are used herein with the meanings so defined. Certain other capitalized
terms are used in this Agreement as specifically defined below in this Section
1. Except as the context otherwise explicitly requires, (a) the capitalized term
"Section" refers to sections of this Agreement, (b) the capitalized term
"Exhibit" refers to exhibits to this Agreement, (c) references to a particular
Section shall include all subsections thereof, (d) the word "including" shall be
construed as "including without limitation", (e) terms defined in the UCC and
not otherwise defined herein have the meaning provided under the UCC, (f)
references to a particular statute or regulation include all rules and
regulations thereunder and any successor statute, regulation or rules, in each
case as from time to time in effect and (g) references to a particular Person
include such Persons successors and assigns to the extent not prohibited by this
Agreement and the other Credit Documents. References to "the date hereof" mean
the date first set forth above.
"ACCOUNTS" is defined in Section 3.1.2.
"AGREEMENT" means this Security Agreement as from time to time in effect.
"FINANCING DEBT" means indebtedness (a) for borrowed money, (b) evidenced
by notes, debentures or similar instruments, (c) associated with capitalized
lease obligations and synthetic lease obligations, (d) associated with the
deferred purchase price of assets, services or securities, including related
noncompetition, consulting and stock repurchase obligations (other than ordinary
trade accounts payable on customary terms in the ordinary course of business),
and any long-term contractual obligations for the payment of money, (e)
associated with mandatory redemption, repurchase or dividend rights on capital
stock (or other equity), including provisions that require the exchange of such
capital stock (or other equity) for Indebtedness from the issuer, (f) associated
with reimbursement obligations, whether contingent or matured, with respect to
letters of credit, bankers acceptances, surety bonds, other financial
guarantees, foreign currency hedge agreements and interest rate protection
agreements (without duplication of other
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indebtedness supported or guaranteed thereby), and (g) any guarantees of any of
the foregoing items.
"INTELLECTUAL PROPERTY" is defined in Section 3.3.8.
"OBLIGATIONS" means any and all present and future liabilities, obligations
and Indebtedness of the Borrower and any of its Subsidiaries or any other
Obligor owing to the Collateral Agent or any Holder (or any Affiliate of a
Holder or Collateral Agent) under or in connection with the Exchange Agreement,
any other Credit Document or any other agreement executed in connection with a
Permitted Exchange, including, without limitation, obligations in respect of
principal, interest, prepayment premium and all other reimbursement obligations
under the Notes, all fees, charges, indemnities and expenses from time to time
owing hereunder, under any other Credit Document and under any other agreement
executed in connection with a Permitted Exchange (all whether accruing before or
after a Bankruptcy Default and regardless of whether allowed as a claim in
bankruptcy or similar proceedings).
"OBLIGORS" means the Borrower and the Guarantor.
"PLEDGED INDEBTEDNESS" is defined in Section 3.1.6.
"PLEDGED RIGHTS" is defined in Section 3.1.5.
"PLEDGED SECURITIES" means the Pledged Stock, the Pledged Rights and the
Pledged Indebtedness, collectively.
"PLEDGED STOCK" is defined in Section 3.1.4.
"UCC" means the Uniform Commercial Code as in effect in Massachusetts on
the date hereof; PROVIDED, HOWEVER, that with respect to the perfection of the
Agents Lien on the Credit Security and the effect of nonperfection thereof, the
term "UCC" means the Uniform Commercial Code as in effect in any jurisdiction
the laws of which are made applicable by section 9-301 of the Uniform Commercial
Code as in effect in Massachusetts.
2. CERTAIN EXHIBITS. In order to induce the Exchanging Holders to enter into the
Credit Documents, including this Agreement, each of the Obligors jointly and
severally represents and warrants as follows:
2.1. AGREEMENTS RELATING TO FINANCING DEBT, REAL PROPERTY, ETC.
Exhibit 2.1, as from time to time hereafter supplemented in accordance with
Section 2.3, sets forth, as of the later of the date hereof or the end of the
most recent fiscal quarter:
2.1.1 The amounts (as of the dates indicated in Exhibit 2.1, as so
supplemented) of all Financing Debt of the Company and its Subsidiaries and
all agreements, Liens and guarantees which relate to such Financing Debt.
2.1.2 All real property owned by the Company or any of its
Subsidiaries or leased from an Affiliate of the Company.
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2.1.3. Material license agreements with respect to the products of
the Company and its Subsidiaries, including the parties thereto and the
expiration dates thereof.
2.1.4. All trademarks, tradenames, service marks, service names and
patents owned by the Company and its Subsidiaries that are registered with
the federal Patent and Trademark Office (or with respect to which
applications for such registration have been filed).
2.1.5. All copyrights owned by the Company and its Subsidiaries that
are registered with the federal Copyright Office.
2.1.6. All internet domain names owned by the Company and its
Subsidiaries and the related registry information.
2.1.7. All commercial tort claims owned by the Company and its
Subsidiaries and related information with respect to the status of the
proceedings.
2.1.8. All bank and deposit accounts owned by the Company and its
Subsidiaries.
The Company has furnished to the Exchanging Holders correct and complete copies
of any agreements described above in this Section 2.1 requested by the
Exchanging Holders.
2.2. ORGANIZATION AND BUSINESS.
2.2.1. Exhibit 2.2, as from time to time hereafter supplemented in
accordance with Section 2.3, sets forth, as of the later of the date hereof
or the end of the most recent fiscal quarter, (i) the jurisdiction of
organization, the organizational identification number issued by such
jurisdiction and the federal taxpayer identification number of the
Borrower, (ii) the address of the Borrowers principal executive office and
chief place of business, (iii) each name, including any trade name, under
which the Borrower conducts its business and (iv) the jurisdictions in
which the Borrower owns real or tangible personal property and, in the case
of real property, whether such real property is owned or leased by the
Borrower.
2.2.2. Exhibit 2.2, as from time to time hereafter supplemented in
accordance with Section 2.3, sets forth, as of the later of the date hereof
or the end of the most recent fiscal quarter, (i) the name, jurisdiction of
organization, the organizational identification number issued by such
jurisdiction and the federal taxpayer identification number of each
Subsidiary of the Borrower, (ii) the address of the chief executive office
and principal place of business of each such Subsidiary, (iii) each name
under which each such Subsidiary conducts its business, (iv) each
jurisdiction in which each such Subsidiary owns real or tangible personal
property, and, in the case of real property, whether such real property is
owned or leased by such Subsidiary and (v) the number of authorized and
issued equity interests and ownership of each such Subsidiary.
2.3. QUARTERLY UPDATES. The Borrower shall furnish to the Holders as soon
as available, but in any event, within 45 days after the end of the fiscal
quarter of the Borrower in which any
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material changes in the information set forth in such exhibits occurs,
supplements to Exhibits 2.1 and 2.2 showing such changes in the information set
forth in such exhibits not previously furnished to the Holders in writing, which
supplements must be reasonably satisfactory to the Agent, as well as any changes
in the Charter, Bylaws or incumbency of officers of the Obligors from those
previously certified to the Agent.
3. SECURITY.
3.1. CREDIT SECURITY. As security for the payment and performance of the
Obligations, each Obligor party hereto mortgages, pledges and collaterally
grants and assigns to the Agent for the benefit of the Holders, and creates a
security interest in favor of the Agent for the benefit of the Holders in, all
of such Obligor's right, title and interest in and to (but none of its
obligations or liabilities with respect to) the items and types of present and
future property described in Sections 3.1.1 through 3.1.14 (subject, however, to
Section 3.1.15), whether now owned or hereafter acquired, all of which shall be
included in the term "CREDIT SECURITY":
3.1.1. TANGIBLE PERSONAL PROPERTY. All goods, machinery, equipment,
inventory and all other tangible personal property of any nature
whatsoever, wherever located, including raw materials, work in process,
finished parts and products, supplies, spare parts, replacement parts,
merchandise for resale, computers, tapes, disks and computer equipment.
3.1.2. RIGHTS TO PAYMENT OF MONEY. All rights to receive the payment
of money, including accounts and receivables, health care insurance
receivables, rights to receive the payment of money under contracts,
franchises, licenses, permits, subscriptions or other agreements (whether
or not earned by performance), and rights to receive payments from any
other source (all such rights, other than Financing Debt, being referred to
herein as "ACCOUNTS").
3.1.3. INTANGIBLES. All of the following (to the extent not included
in Section 3.1.2): (a) contracts, franchises, licenses, permits,
subscriptions and other agreements and all rights thereunder; (b) rights
granted by others which permit such Obligor to sell or market items of
personal property; (c) United States and foreign common law and statutory
copyrights and rights in literary property and rights and licenses
thereunder; (d) trade names, United States and foreign trademarks, service
marks, internet domain names, registrations of any of the foregoing and
related good will; (e) United States and foreign patents and patent
applications; (f) computer software, designs, models, know-how, trade
secrets, rights in proprietary information, formulas, customer lists,
backlog, orders, subscriptions, royalties, catalogues, sales material,
documents, good will, inventions and processes; (g) judgments, causes in
action, commercial tort claims set forth from time to time on Exhibit 2.1
or any supplements thereto provided pursuant to Section 2.3 or otherwise
and other claims, whether or not inchoate, and (h) all other general
intangibles, payment intangibles and intangible property and all rights
thereunder, including such items set forth from time to time on Exhibit 2.1
or any supplements thereto provided pursuant to Section 2.3 or otherwise.
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3.1.4. PLEDGED STOCK. (a) All shares of capital stock or other
evidence of beneficial interest in any corporation, business trust or
limited liability company, (b) all limited partnership interests in any
limited partnership, (c) all general partnership interests in any general
or limited partnership, (d) all joint venture interests in any joint
venture and (e) all options, warrants and similar rights to acquire such
capital stock or such interests. All such capital stock, interests,
options, warrants and other rights are collectively referred to as the
"PLEDGED STOCK".
3.1.5. PLEDGED RIGHTS. All rights to receive profits or surplus of,
or other distributions (including income, return of capital and liquidating
distributions) from, any partnership, joint venture or limited liability
company, including any distributions by any such Person to partners, joint
venturers or members. All such rights are collectively referred to as the
"PLEDGED RIGHTS".
3.1.6. PLEDGED INDEBTEDNESS. All Financing Debt from time to time
owing to such Obligor from any Person (all such Financing Debt being
referred to as the "PLEDGED INDEBTEDNESS").
3.1.7. CHATTEL PAPER, INSTRUMENTS, ETC. All chattel paper (whether
tangible or electronic), non-negotiable instruments, negotiable
instruments, documents, securities and investment property.
3.1.8. LEASES. All leases of personal property, whether such Obligor
is the lessor or the lessee thereunder.
3.1.9. DEPOSIT ACCOUNTS. All general or special deposit accounts,
including any demand, time, savings, passbook or similar account maintained
by such Obligor with any bank, trust company, savings and loan association,
credit union or similar organization, and all money, cash and cash
equivalents of such Obligor, whether or not deposited in any such deposit
account.
3.1.10. CREDIT SUPPORT. All collateral granted by third parties to,
or held by, such Obligor, and all letter of credit rights (whether or not
the letter of credit is evidenced in writing) and other supporting
obligations of such Obligor.
3.1.11. BOOKS AND RECORDS. All books and records, including books of
account and ledgers of every kind and nature, all electronically recorded
data (including all computer programs, disks, tapes, electronic data
processing media and software used in connection with maintaining such
Obligor's books and records), all files, correspondence and all containers
for the foregoing.
3.1.12. INSURANCE. All insurance policies which insure against any
loss or damage to any other Credit Security or which are otherwise owned by
such Obligor.
3.1.13. ALL OTHER PROPERTY. All other property, assets and items of
value of every kind and nature, tangible or intangible, absolute or
contingent, legal or equitable.
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3.1.14. PROCEEDS AND PRODUCTS. All proceeds, including insurance
proceeds, and products of the items of Credit Security described or
referred to in Sections 3.1.1 through 3.1.13 and, to the extent not
included in the foregoing, all distributions with respect to the Pledged
Securities.
3.1.15. EXCLUDED PROPERTY. Notwithstanding Sections 3.1.1 through
3.1.14, the payment and performance of the Obligations shall not be secured
by:
(a) any contract, license, permit or franchise that validly prohibits
the creation by such Obligor of a security interest in such contract,
license, permit or franchise (or in any rights or property obtained by such
Obligor under such contract, license, permit or franchise); PROVIDED,
HOWEVER, that the provisions of this Section 3.1.15 shall not prohibit the
security interests created by this Agreement from extending to the proceeds
of such contract, license, permit or franchise (or such rights or property)
or to the monetary value of the good will and other general intangibles of
the Obligors relating thereto;
(b) any rights or property to the extent that any valid and
enforceable law or regulation applicable to such rights or property
prohibits the creation of a security interest therein; PROVIDED, HOWEVER,
that the provisions of this Section 3.1.15 shall not prohibit the security
interests created by this Agreement from extending to the proceeds of such
rights or property or to the monetary value of the good will and other
general intangibles of the Obligors relating thereto;
(c) any rights or property to the extent that such rights or property
secure purchase money financing therefor permitted by the Exchange
Agreement and the agreements providing such purchase money financing
prohibit the creation of a further security interest therein; PROVIDED,
HOWEVER, that the provisions of this Section 3.1.15 shall not prohibit the
security interests created by this Agreement from extending to the proceeds
of such rights or property or to the monetary value of the good will and
other general intangibles of the Obligors relating thereto;
(d) more than 66% of the outstanding voting stock or other voting
equity in any Foreign Subsidiary to the extent that the pledge of voting
stock or other voting equity above such amount would result in a
repatriation of a material amount of foreign earnings under the Code
(including the "deemed dividend" provisions of section 956 of the Code);
(e) Margin Stock unless the applicable requirements of Regulations T,
U and X of the Board of Governors of the Federal Reserve System have been
satisfied; or
(f) the items described in Section 3.2 (but only in the event and to
the extent the Agent has not specified that such items be included in the
Credit Security pursuant thereto).
In addition, in the event any Obligor disposes of assets to third parties
in a transaction permitted by section 4.3 of the Exchange Agreement, such
assets, but not the proceeds or products thereof, shall be released from the
Lien of the Credit Security.
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3.2. ADDITIONAL CREDIT SECURITY. As additional Credit Security, each
Obligor covenants that it will mortgage, pledge and collaterally grant and
assign to the Agent for the benefit of the Holders, and will create a security
interest in favor of the Agent for the benefit of the Holders in all of its
right, title and interest in and to (but none of its obligations with respect
to) such of the following present or future items as the Agent may from time to
time specify by notice to such Obligor, whether now owned or hereafter acquired,
and the proceeds and products thereof, except to the extent consisting of rights
or property of the types referred to in Section 3.1.15(a) through (f), subject
only to Liens permitted by Section 3.3.3, all of which shall thereupon be
included in the term "CREDIT SECURITY":
3.2.1. MOTOR VEHICLES AND AIRCRAFT. All motor vehicles and aircraft.
3.3. CERTAIN COVENANTS WITH RESPECT TO CREDIT SECURITY. Each Obligor
covenants that:
3.3.1. PLEDGED STOCK. All shares of capital stock, limited
partnership interests, membership interests and similar securities included
in the Pledged Stock shall be at all times duly authorized, validly issued,
fully paid and (in the case of capital stock and limited partnership
interests) nonassessable. Subject to Section 3.3.13. each Obligor will
deliver to the Agent (or an agent on its behalf) certificates representing
any Pledged Stock held by such Obligor, accompanied by a stock transfer
power executed in blank, all in form and manner reasonably satisfactory to
the Agent. Pledged Stock that is not evidenced by a certificate held by
such Obligor will be described in appropriate control statements and UCC
financing statements provided to the Agent, all in form and substance
reasonably satisfactory to the Agent. In the event the Pledged Stock
includes uncertificated equity interests in a limited liability company,
limited partnership, general partnership or other entity, except with the
prior written consent of the Agent, which consent shall not be unreasonably
withheld, the Obligors shall use reasonable efforts to take all action
within their power to prevent such limited liability company, limited
partnership, general partnership or other entity from (a) opting to have
such uncertificated equity interests treated as "securities" for purposes
of Article 8 of the UCC or (b) issuing certificates for such uncertificated
equity interests. Upon the occurrence and during the continuance of an
Event of Default, the Agent may transfer into its name or the name of its
nominee any Pledged Stock. In the event the Pledged Stock includes any
Margin Stock, the Obligors will furnish to the Holders Federal Reserve Form
U-1 and take such other action as the Agent may reasonably request to
ensure compliance with applicable laws.
3.3.2. ACCOUNTS AND PLEDGED INDEBTEDNESS. Subject to Section 3.3.13.
each Obligor will, immediately upon the receipt thereof, deliver to the
Agent (or an agent on its behalf) any promissory note or similar instrument
representing any Account or Pledged Indebtedness, after having endorsed
such promissory note or instrument in blank.
3.3.3. NO LIENS OR RESTRICTIONS ON TRANSFER OR CHANGE OF CONTROL.
All Credit Security shall be free and clear of any Liens and restrictions
on the transfer thereof, including contractual provisions which prohibit
the assignment of rights under contracts,
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except for Permitted Liens (as such term is defined in the Exchange
Agreement) or by this Section 3.3.3. Without limiting the generality of the
foregoing, each Obligor will in good faith attempt to exclude from
agreements, instruments, deeds or leases to which it becomes a party after
the date hereof provisions that would prevent such Obligor from creating a
security interest in such agreement, instrument, deed or lease or any
rights or property acquired thereunder as contemplated hereby. None of the
Pledged Stock shall be subject to any option to purchase or similar rights
of any Person. Except with the written consent of the Required Holders,
which consent will not be unreasonably withheld, each Obligor will in good
faith attempt to exclude from any agreement, instrument, deed or lease
provisions that would restrict the change of control or ownership of the
Borrower or any of its Subsidiaries, or the creation of a security interest
in the ownership of the Borrower or any of its Subsidiaries.
3.3.4. JURISDICTION OF ORGANIZATION. Each Obligor shall at all times
maintain its jurisdiction of organization as set forth in Exhibit 2.2 as in
effect on the date hereof or, so long as such Obligor shall have taken all
steps reasonably necessary to perfect the Holders' security interest in the
Credit Security with respect to such new jurisdiction, in such other
jurisdiction as such Obligor may specify by notice delivered to the Agent
not less than 10 Business Days prior to such change of jurisdiction of
organization.
3.3.5. LOCATION OF CREDIT SECURITY. Each Obligor shall at all times
keep its records concerning the Accounts at its chief executive office and
principal place of business, which office and place of business shall be as
set forth in Exhibit 2.2 (as from time to time supplemented in accordance
with Section 2.3) or, so long as such Obligor shall have taken all steps
reasonably directed by the Agent to perfect the Holders' security interest
in the Credit Security with respect to such new address, at such other
address as such Obligor may specify by notice delivered to the Agent not
less than 10 Business Days prior to such change of address. No Obligor
shall at any time keep tangible personal property of the type referred to
in Section 3.1.1 in any jurisdiction other than the jurisdictions specified
in such Exhibit 2.2 (as so supplemented) or, so long as such Obligor shall
have taken all steps reasonably directed by the Agent to perfect the
Holders' security interest in the Credit Security with respect to such
other jurisdiction, other jurisdictions as such Obligor may specify by
notice delivered to the Agent not less than 10 Business Days prior to
moving such tangible personal property into such other jurisdiction.
3.3.6. TRADE NAMES. No Obligor will adopt or do business under any
name other than its name or names designated in Exhibit 2.2 (as from time
to time supplemented in accordance with Section 2.3) or any other name
specified by notice delivered to the Agent not less than 10 Business Days
prior to the conduct of business under such additional name. Since its
inception, no Obligor has changed its name or adopted or conducted business
under any trade name other than a name specified in such Exhibit 2.2 (as so
supplemented).
3.3.7. INSURANCE. Each insurance policy included in, or insuring
against loss or damage to, the Credit Security, or insuring against
liabilities of the Borrower and its
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Subsidiaries, shall name the Agent as additional insured party or as loss
payee, as the case may be. No such insurance policy shall be cancelable or
subject to termination or reduction in amount or scope of coverage until
after at least 30 days' prior written notice from the insurer to the Agent.
At least 10 days prior to the expiration of any such insurance policy for
any reason, each Obligor shall furnish the Agent with reasonably
satisfactory evidence of a renewal or replacement policy and payment of the
premiums therefor to the extent due. Each Obligor grants to the Agent full
power and authority as its attorney-in-fact, effective upon notice to such
Obligor after the occurrence and during the continuance of an Event of
Default, to obtain, cancel, transfer, adjust and settle any such insurance
policy and to endorse any drafts thereon. Any amounts that the Agent
receives under any such policy (including return of unearned premiums) when
no Event of Default has occurred and is continuing shall be delivered to
the Obligors for the replacement, restoration and maintenance of the Credit
Security in the case of property insurance or for reimbursing insured
liabilities in the case of liability insurance. Any such amounts that the
Agent receives after the occurrence and during the continuance of an Event
of Default shall, at the Agent's option, be applied to payment of the
Obligations or to the replacement, restoration and maintenance of the
Credit Security in the case of property insurance or to the reimbursement
of insured liabilities in the case of liability insurance. If any Obligor
fails to provide insurance as required by this Agreement, the Agent may, at
its option, purchase such insurance, and such Obligor will on demand pay to
the Agent the amount of any payments made by the Agent or the Holders for
such purpose, together with interest on the amounts so disbursed from five
Business Days after the date demanded until payment in full thereof at the
rate specified in section 3.2 of the Exchange Agreement.
3.3.8. INTELLECTUAL PROPERTY. Exhibit 2.1 (as supplemented from time
to time in accordance with Section 2.3) shall set forth the following items
(collectively, the "INTELLECTUAL PROPERTY"):
(a) all copyrights owned by the Obligors that are registered with the
United States Copyright Office (or any office maintaining registration of
copyrights in any foreign jurisdiction) and all applications for such
registration;
(b) all trademarks, tradenames, service marks, service names and
patents owned by the Obligors that are registered with the United States
Patent and Trademark Office (or any office maintaining registration of such
items in any state of the United States of America or any foreign
jurisdiction) and all applications for such registration; and
(c) all internet domain names owned by the Obligors and the registry
office on which such domain names are registered.
The Obligors shall duly authorize, execute and deliver to the Agent
separate memoranda of security interests with respect to the foregoing
Intellectual Property for filing in the offices described above. Upon the
registration of any additional Intellectual Property (or the filing of
applications therefor) in the offices described above, the Obligors shall
(at least quarterly, as contemplated by Section 2.3) notify the Agent and
duly authorize,
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execute and deliver to the Agent separate memoranda of security interests
covering such additional Intellectual Property for filing in such offices.
The Obligors hereby appoint and constitute the Agent as their attorney with
full power and authority, in their place and stead, after the occurrence
and during the continuance of an Event of Default, to register with the
Patent and Trademark Office, the U.S. Copyright Office or any other
applicable governmental authority the assignment by the Obligors to the
Agent of the Intellectual Property.
3.3.9. DEPOSIT ACCOUNTS. Each Obligor shall keep all its bank and
deposit accounts only with the Agent, Holders or the financial institutions
listed on Exhibit 2.1 (as from time to time supplemented in accordance with
Section 2.3). Each Obligor shall use reasonable efforts to cause such
financial institutions (other than the Holders and the Agent) to enter into
account control agreements with the Agent in form and substance reasonably
satisfactory to the Agent.
3.3.10. MODIFICATIONS TO CREDIT SECURITY. Except with the prior
written consent of the Agent, which consent will not be unreasonably
withheld, no Obligor shall amend or modify, or waive any of its material
rights under or with respect to, any material Accounts, general
intangibles, Pledged Securities or leases if the effect of such amendment,
modification or waiver would be to reduce the amount of any such items or
to extend the time of payment thereof, to waive any default by any other
party thereto, or to waive or impair any remedies of the Obligors or the
Holders under or with respect to any such Accounts, general intangibles,
Pledged Securities or leases, in each case other than consistent with past
practice in the ordinary course of business and on an arm's-length basis.
Each Obligor will promptly give the Agent written notice of any request by
any Person for any material credit or adjustment with respect to any
Account, general intangible, Pledged Securities or leases.
3.3.11. DELIVERY OF DOCUMENTS. Upon the Agent's reasonable request,
each Obligor shall deliver to the Agent, promptly upon such Obligor's
receipt thereof, copies of any agreements, instruments, documents or
invoices comprising or relating to the Credit Security. Pending such
request, such Obligor shall keep such items at its chief executive office
and principal place of business (as specified pursuant to Section 3.3.5).
3.3.12. PERFECTION OF CREDIT SECURITY.
(a) This Agreement creates and shall create in favor of the Agent,
for the benefit of the Holders, a legal, valid and enforceable second
priority security interest in the Credit Security described herein, subject
only to Permitted Liens.
(b) The Agent may at any time and from time to time execute and file
UCC financing statements, continuation statements and amendments thereto
that the Agent reasonably deems necessary to perfect or maintain its
security interest granted herein, which UCC financing statements,
continuation statements and amendments describe the Credit Security and
contain any information required by the UCC or the applicable filing
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office with respect to any such UCC financing statement, continuation
statement or amendment thereof.
(c) The Obligors shall execute and deliver all such instruments,
including UCC financing statements, collateral assignments of copyrights,
trademarks and patents, mortgages or deeds of trust, notations on
certificates of title and written confirmation of the grant of a security
interest in commercial tort claims, and will take all such other action,
all as may be necessary or desirable (including as the Agent may reasonably
request from time to time as the Agent deems reasonably necessary or
desirable) for perfecting or otherwise confirming to it the Credit Security
or to carry out any other purpose of this Agreement or any other Credit
Document.
(d) In furtherance of the foregoing, the Obligors shall use
reasonable efforts to obtain (i) a written acknowledgment, in form and
substance reasonably satisfactory to the Agent, from any bailee having
possession of any Credit Security that such bailee holds such Credit
Security for the benefit of the Agent and (ii) control of any investment
property, deposit accounts, letter of credit rights or electronic chattel
paper, with any agreements establishing such control to be in form and
substance reasonably satisfactory to the Agent.
3.3.13. POSSESSION OF CREDIT SECURITY. The Agent shall not take
possession of any Credit Security required to be delivered by the Obligors
hereunder that has been delivered to the lenders under the Senior Loan
Agreement unless and until the Senior Loan Agreement (as such term is
defined in the Exchange Agreement) has terminated. Upon termination of the
Senior Loan Agreement (as such term is defined in the Exchange Agreement),
the Obligors shall cause the senior lenders to deliver to the Agent such
Credit Security as is required to be delivered by this Agreement.
3.4. ADMINISTRATION OF CREDIT SECURITY. The Credit Security shall be
administered as follows, and if an Event of Default shall have occurred and be
continuing, Section 3.5 shall also apply.
3.4.1. USE OF CREDIT SECURITY. Until the Agent provides written
notice to the contrary, each Obligor may use, commingle and dispose of any
part of the Credit Security in the ordinary course of its business, all
subject to section 4.3 of the Exchange Agreement.
3.4.2. ACCOUNTS. To the extent specified by prior written notice
from the Agent after the occurrence and during the continuance of an Event
of Default, all sums collected or received and all property recovered or
possessed by any Obligor in connection with any Credit Security shall be
received and held by such Obligor in trust for and on the Holders' behalf,
shall be segregated from the assets and funds of such Obligor, and shall be
delivered to the Agent for the benefit of the Holders. Without limiting the
foregoing, upon the Agent's request after the occurrence and during the
continuance of an Event of Default, each Obligor shall institute depository
collateral accounts, lock-box receipts and similar credit procedures
providing for the direct receipt of payment on Accounts at a
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separate address, the segregation of such proceeds for direct payment to
the Agent and appropriate notices to Account debtors. Upon the Agent's
request after the occurrence and during the continuance of an Event of
Default, each Obligor will cause its accounting books and records to be
marked with such legends and segregated in such manner as the Agent may
specify.
3.4.3. DISTRIBUTIONS ON PLEDGED SECURITIES.
(a) Until an Event of Default shall occur and be continuing, the
respective Obligors shall be entitled, to the extent permitted by the
Credit Documents, to receive all distributions on or with respect to the
Pledged Securities (other than distributions constituting additional
Pledged Securities or liquidating distributions). All distributions
constituting additional Pledged Securities or liquidating distributions
will be retained by the Agent (or if received by any Obligor shall be held
by such Person in trust and shall be immediately delivered by such Person
to the Agent in the original form received, endorsed in blank) and held by
the Agent as part of the Credit Security.
(b) If an Event of Default shall have occurred and be continuing, all
distributions on or with respect to the Pledged Securities shall be
retained by the Agent (or if received by any Obligor shall be held by such
Person in trust and shall be promptly delivered by it to the Agent in the
original form received, endorsed in blank) and held by the Agent as part of
the Credit Security or applied by the Agent to the payment of the
Obligations in accordance with Section 3.5.6.
3.4.4. VOTING PLEDGED SECURITIES.
(a) Until an Event of Default shall occur and be continuing and the
Agent shall have delivered a notice contemplated by clause (b) below, the
respective Obligors shall be entitled to vote or consent with respect to
the Pledged Securities in any manner not inconsistent with the terms of any
Credit Document, and the Agent will, if so requested, execute appropriate
revocable proxies therefor.
(b) If an Event of Default shall have occurred and be continuing, if
and to the extent that the Agent shall so notify in writing the Obligor
pledging the Pledged Securities in question, only the Agent shall be
entitled to vote or consent or take any other action with respect to the
Pledged Securities (and any Obligor will, if so requested, execute
appropriate proxies therefor).
3.5. RIGHT TO REALIZE UPON CREDIT SECURITY. Except to the extent prohibited
by applicable law that cannot be waived, this Section 3.5 shall govern the
Holders' and the Agent's rights to realize upon the Credit Security if any Event
of Default shall have occurred and be continuing. The provisions of this Section
3.5 are in addition to any rights and remedies available at law or in equity and
in addition to the provisions of any other Credit Document. In the case of a
conflict between this Section 3.5 and any other Credit Document, this Section
3.5 shall govern.
3.5.1. ASSEMBLY OF CREDIT SECURITY; RECEIVER. Each Obligor shall,
upon the Agent's request, assemble the Credit Security and otherwise make
it available to the
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Agent. The Agent may have a receiver appointed for all or any portion of
the Obligors' assets or business which constitutes the Credit Security in
order to manage, protect, preserve, sell and otherwise dispose of all or
any portion of the Credit Security in accordance with the terms of the
Credit Documents, to continue the operations of the Obligors and to collect
all revenues and profits therefrom to be applied to the payment of the
Obligations, including the compensation and expenses of such receiver.
3.5.2. GENERAL AUTHORITY. To the extent specified in written notice
from the Agent to the Obligor in question, each Obligor grants the Agent
full and exclusive power and authority, subject to the Agent's commercially
reasonable judgment and the terms hereof and applicable law, to take any of
the following actions (for the sole benefit of the Agent on behalf of the
Holders, the reasonable expenses of which shall be at such Obligor's
expense):
(a) To ask for, demand, take, collect, sue for and receive all
payments in respect of any Accounts, general intangibles, Pledged
Securities or leases which such Obligor could otherwise ask for, demand,
take, collect, sue for and receive for its own use.
(b) To extend the time of payment of any Accounts, general
intangibles, Pledged Securities or leases and to make any allowance or
other adjustment with respect thereto.
(c) To settle, compromise, prosecute or defend any action or
proceeding with respect to any Accounts, general intangibles, Pledged
Securities or leases and to enforce all rights and remedies thereunder
which such Obligor could otherwise enforce.
(d) To enforce the payment of any Accounts, general intangibles,
Pledged Securities or leases, either in the name of such Obligor or in its
own name, and to endorse the name of such Obligor on all checks, drafts,
money orders and other instruments tendered to or received in payment of
any Credit Security.
(e) To notify the third party payor with respect to any Accounts,
general intangibles, Pledged Securities or leases of the existence of the
security interest created hereby and to cause all payments in respect
thereof thereafter to be made directly to the Agent; PROVIDED, HOWEVER,
that whether or not the Agent shall have so notified such payor, such
Obligor will at its expense render all reasonable assistance to the Agent
in collecting such items and in enforcing claims thereon.
(f) To use, operate, sell, transfer, assign or otherwise deal in or
with any Credit Security or the proceeds thereof, as fully as such Obligor
otherwise could do.
3.5.3. MARSHALING, ETC. Neither the Agent nor the Holders shall be
required to make any demand upon, or pursue or exhaust any of their rights
or remedies against, any Obligor or any other guarantor, pledgor or any
other Person with respect to the payment of the Obligations or to pursue or
exhaust any of their rights or remedies with respect to any collateral
therefor or any direct or indirect guarantee thereof. Neither the Agent nor
the Holders shall be required to marshal the Credit Security or any
guarantee of the Obligations or to resort to the Credit Security or any
such guarantee in any particular
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order, and all of its and their rights hereunder or under any other Credit
Document shall be cumulative. To the extent it may lawfully do so, each
Obligor absolutely and irrevocably waives and relinquishes the benefit and
advantage of, and covenants not to assert against the Agent or the Holders,
any valuation, stay, appraisement, extension, redemption or similar laws
now or hereafter existing which, but for this provision, might be
applicable to the sale of any Credit Security made under the judgment,
order or decree of any court, or privately under the power of sale
conferred by this Agreement, or otherwise. Without limiting the generality
of the foregoing, each Obligor (a) agrees that it will not invoke or
utilize any law which might prevent, cause a delay in or otherwise impede
the enforcement of the rights of the Agent or any Holder in the Credit
Security, (b) waives its rights under all such laws, and (c) agrees that it
will not invoke or raise as a defense to any enforcement by the Agent or
any Holder of any rights and remedies relating to the Credit Security or
the Obligations any legal or contractual requirement with which the Agent
or any Holder may have in good faith failed to comply. In addition, each
Obligor waives any right to prior notice (except to the extent expressly
required by this Agreement) or judicial hearing in connection with
foreclosure on or disposition of any Credit Security, including any such
right which such Obligor would otherwise have under the Constitution of the
United States of America, any state or territory thereof or any other
jurisdiction.
3.5.4. SALES OF CREDIT SECURITY. All or any part of the Credit
Security may be sold for cash or other value in any number of lots at
public or private sale, without demand, advertisement or notice; PROVIDED,
HOWEVER, that the Agent shall give the Obligor granting the security
interest in such Credit Security 10 days' prior written notice of the time
and place of any public sale, or the time after which a private sale may be
made, which notice each of the Obligors and the Agent agrees to be
reasonable; and PROVIDED, FURTHER, that any such sale shall otherwise be
conducted in a commercially reasonable manner. At any sale or sales of
Credit Security, any Holder or any of its respective officers acting on its
behalf, or such Holder's assigns, may bid for and purchase all or any part
of the property and rights so sold, may use all or any portion of the
Obligations owed to such Holder as payment for the property or rights so
purchased, and upon compliance with the terms of such sale may hold and
dispose of such property and rights without further accountability to the
respective Obligors, except for the proceeds of such sale or sales pursuant
to Section 3.5.6. The Obligors acknowledge that any such sale will be made
by the Agent on an "as is" basis with disclaimers of all warranties,
whether express or implied (including warranties with respect to title,
possession, quiet enjoyment and other similar warranties). The respective
Obligors will execute and deliver or cause to be executed and delivered
such instruments, documents, assignments, waivers, certificates and
affidavits, will supply or cause to be supplied such further information
and will take such further action, as the Agent shall reasonably request in
connection with any such sale.
3.5.5. SALE WITHOUT REGISTRATION. If, at any time when the Agent
shall determine to exercise its rights hereunder to sell all or part of the
securities included in the Credit Security, the securities in question
shall not be effectively registered under the Securities Act (or other
applicable law), the Agent may sell such securities by private or other
sale
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not requiring such registration in such manner and in such circumstances as
the Agent may reasonably deem necessary or advisable in order that such
sale may be effected in accordance with applicable securities laws without
such registration and the related delays, uncertainty and expense. Without
limiting the generality of the foregoing, in any event the Agent may, in
its reasonable discretion, (a) approach and negotiate with a single
purchaser or one or more possible purchasers to effect such sale, (b)
restrict such sale to one or more purchasers each of whom will represent
and agree that such purchaser is purchasing for its own account, for
investment and not with a view to the distribution or sale of such
securities and (c) cause to be placed on certificates representing the
securities in question a legend to the effect that such securities have not
been registered under the Securities Act (or other applicable law) and may
not be disposed of in violation of the provisions thereof. Each Obligor
agrees that such manner of disposition is commercially reasonable, that it
will upon the Agent's request give any such purchaser access to such
information regarding the issuer of the securities in question as the Agent
may reasonably request and that the Agent and the Holders shall not incur
any responsibility for selling all or part of the securities included in
the Credit Security at any private or other sale not requiring such
registration, notwithstanding the possibility that a substantially higher
price might be realized if the sale were deferred until after registration
under the Securities Act (or other applicable law) or until made in
compliance with certain other rules or exemptions from the registration
provisions under the Securities Act (or other applicable law). Each Obligor
acknowledges that no adequate remedy at law exists for breach by it of this
Section 3.5.5 and that such breach would not be adequately compensable in
damages and therefore agrees that this Section 3.5.5 may be specifically
enforced.
3.5.6. APPLICATION OF PROCEEDS. The proceeds of all sales and
collections in respect of any Credit Security or other assets of any
Obligor, all funds collected from the Obligors and any cash contained in
the Credit Security, the application of which is not otherwise specifically
provided for in the Subordination Agreement (as defined in the Exchange
Agreement) or herein, shall be applied as follows:
(a) First, to the payment of the costs and expenses of such sales and
collections, the reasonable fees and expenses of the Agent then outstanding
and the reasonable fees and expenses of its special counsel;
(b) Second, any surplus then remaining to the payment of the
Obligations in such order and manner as the Agent may in its reasonable
discretion determine; PROVIDED, HOWEVER, that any such payment shall be
distributed to the Holders in accordance with the Exchange Agreement and
the other Credit Documents; and
(c) Third, any surplus then remaining shall be paid to the Obligors,
subject, however, to any rights of the holder of any then existing Lien who
has duly presented to the Agent an authenticated demand for proceeds before
the Agent's distribution of the proceeds is completed.
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3.6. CUSTODY OF CREDIT SECURITY. Except as provided by applicable law that
cannot be waived, the Agent will have no duty as to the custody and protection
of the Credit Security, the collection of any part thereof or of any income
thereon or the preservation or exercise of any rights pertaining thereto,
including rights against prior parties, except for the use of due care in the
custody and physical preservation of any Credit Security in its possession.
Absent gross negligence or willful misconduct, the Holders will not be liable or
responsible for any loss or damage to any Credit Security, or for any diminution
in the value thereof, by reason of the act or omission of any agent selected by
the Agent acting in good faith.
3.6.1. In entering into this Agreement, and in performing or
observing any of the terms of this Agreement, and otherwise in respect of
any matter arising under or in respect of this Agreement, the Agent shall
enjoy and shall be protected by each of the rights, immunities, indemnities
and other protections set forth in the Exchange Agreement; and any
obligations, duties or liabilities to which the Agent may be or become
subject under or in respect of this Agreement shall be subject to and
limited by the terms of the Exchange Agreement (including, without
limitation, the terms of Section 11 thereof). In no event shall the Agent
have any liability hereunder that it would not have, nor shall the Agent be
obligated to take any action hereunder that it would not be required to
take, under the terms of the Exchange Agreement.
3.6.2. The Agent is entering into this Agreement pursuant to the
terms of the Exchange Agreement and the Agent has no responsibility for the
terms of this Agreement or its sufficiency for any purpose.
4. DEFEASANCE. When all Obligations have been paid, performed and reasonably
determined by the Holders to have been indefeasibly discharged in full, and if
at the time no Holder continues to be committed to extend any credit to the
Borrower under the Exchange Agreement or any other Credit Document, this
Agreement shall terminate and, at the Borrower's written request, the Credit
Security shall immediately revert to the Borrower and the right, title and
interest of the Holders therein shall terminate. Thereupon, on the Borrower's
demand and at its cost and expense, the Agent shall execute proper instruments,
acknowledging satisfaction of and discharging this Agreement, and shall
immediately deliver to the Borrower any Credit Security then in its possession.
5. SUCCESSORS AND ASSIGNS. The provisions of this Agreement shall inure to the
benefit of the Holders and their successors and assigns and shall be binding
upon the Borrower and its respective successors and assigns. The Borrower may
not assign its rights or obligations under this Agreement without the written
consent of the Agent.
6. NOTICES. Except as otherwise expressly provided herein, all notices,
requests, consents, and other communications under this Agreement shall be in
writing and shall be deemed delivered (a) two business days after being sent by
registered or certified mail, return receipt requested, postage prepaid or (b)
one business day after being sent via a reputable nationwide overnight courier
service guaranteeing next business day delivery, in each case to the intended
recipient as set forth below:
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If to the Borrower or an other Obligor, at 20 Second Avenue, Burlington, MA
01803, Attention: Chief Financial Officer, or at such other address or addresses
as may have been furnished in writing by the Borrower to the Holders, with a
copy to Johan V. Brigham, Bingham McCutchen LLP, 1900 University Avenue, East
Palo Alto, CA 94303-2223; and
If to the Agent, to it at its address specified in or pursuant to section
13.2 of the Exchange Agreement.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including personal delivery,
messenger service, facsimile, first class mail or electronic mail), but no such
notice, request, consent or other communication shall be deemed to have been
duly given unless and until it is actually received by the party for whom it is
intended. Any party may change the address to which notices, requests, consents
or other communications hereunder are to be delivered by giving the other
parties notice in the manner set forth in this Section 6.
7. REIMBURSEMENT OF EXPENSES. The Borrower shall promptly pay on demand all
reasonable expenses of the Agent and the Holders (including reasonable attorney
fees and expenses) in connection with the preparation of this Agreement,
operations hereunder and enforcement and collection hereof, whether before or
after bankruptcy or similar proceedings (and whether or not allowed as a claim
therein).
8. VENUE; SERVICE OF PROCESS. Each of the Borrower, the Guarantor and the Agent:
(a) Irrevocably submits to the nonexclusive jurisdiction of the state
courts of the Commonwealth of Massachusetts and to the nonexclusive
jurisdiction of the United States District Court for the District of
Massachusetts for the purpose of any suit, action or other proceeding
arising out of or based upon this Agreement or any other Credit Document or
the subject matter hereof or thereof;
(b) Waives to the extent not prohibited by applicable law, and agrees
not to assert, by way of motion, as a defense or otherwise, in any such
proceeding brought in any of the above-named courts, any claim that it is
not subject personally to the jurisdiction of such court, that its property
is exempt or immune from attachment or execution, that such proceeding is
brought in an inconvenient forum, that the venue of any such proceeding is
improper, or that this Agreement or any other Credit Document, or the
subject matter hereof or thereof, may not be enforced in or by such court;
(c) Irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of
copies thereof by registered or certified mail, postage prepaid, to each
Obligor at its address for notices pursuant to Section 6, such service to
become effective 15 days after such mailing. Nothing herein shall affect
the right of any Holder to serve process in any other manner permitted by
law or to commence legal proceedings or otherwise proceed against any
Obligor in any other jurisdiction; and
(d) Waives to the extent not prohibited by applicable law that cannot
be waived
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any right it may have to claim or recover in any such proceeding any
special, exemplary, punitive or consequential damages.
9. WAIVER OF JURY TRIAL. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT
CANNOT BE WAIVED, EACH OF THE PARTIES HERETO WAIVES, AND COVENANTS THAT IT WILL
NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF
THIS AGREEMENT OR ANY OTHER DOCUMENT OR THE SUBJECT MATTER HEREOF OR THEREOF OR
ANY OBLIGATION OR IN ANY WAY CONNECTED WITH THE DEALINGS OF THE HOLDERS OR THE
COLLATERAL AGENT, THE BORROWER OR ANY OTHER OBLIGOR IN CONNECTION WITH ANY OF
THE ABOVE, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER IN
CONTRACT, TORT OR OTHERWISE. Each of the parties hereto acknowledges that the
foregoing waiver constitutes a material inducement upon which each of the
parties has relied and will rely in entering into this Agreement and any other
Credit Document. Any party hereto may file an original counterpart or a copy of
this Agreement with any court as written evidence of the consent of each of the
parties hereto to the waiver of their rights to trial by jury.
10. GENERAL. All covenants, agreements, representations and warranties made in
this Agreement or any other Credit Document or in certificates delivered
pursuant hereto or thereto shall be deemed to have been relied on by each
Exchanging Holder, notwithstanding any investigation made by the Agent on its
behalf, and shall survive the execution and delivery to the Exchanging Holders
and the Holders hereof and thereof. The invalidity or unenforceability of any
provision hereof shall not affect the validity or enforceability of any other
provision hereof, and any invalid or unenforceable provision shall be modified
so as to be enforced to the maximum extent of its validity or enforceability.
The headings in this Agreement are for convenience of reference only and shall
not limit, alter or otherwise affect the meaning hereof. This Agreement and the
other Credit Documents constitute the entire understanding of the parties with
respect to the subject matter hereof and thereof and supersede all prior and
current understandings and agreements, whether written or oral. This Agreement
is a Credit Document and may be executed in any number of counterparts, which
together shall constitute one instrument. This Agreement shall be governed by
and construed in accordance with the laws (other than the conflict of laws
rules) of the Commonwealth of Massachusetts, except as may be required by the
UCC of other jurisdictions with respect to matters involving the perfection of
the Agent's Lien on the Credit Security located in such other jurisdictions.
Each beneficial holder of the Obligations shall be entitled to the benefits of a
Holder under this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Each of the undersigned has caused this Agreement to be executed and
delivered by its duly authorized officer as an agreement under seal as of the
date first written above.
iBASIS, INC.
By /s/ Ofer Gneezy
-------------------------------------
Title: President & CEO
iBASIS GLOBAL, INC.
By /s/ Richard Tennant
-------------------------------------
Title: Treasurer & CFO
iBASIS SECURITES CORPORATION
By /s/ Gordon VanderBrug
-------------------------------------
Title: Executive Vice President
U.S. BANK NATIONAL ASSOCIATION,
as Collateral Agent
By /s/ John A. Brennan
-------------------------------------
Title: Trust Officer