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IGN ENTERTAINMENT INC
·
S-1
Jul 13, 4:17 PM ET
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IGN ENTERTAINMENT INC S-1
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Contents
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Section 1.1 Issue of Notes
Section 1.2 Sale and Purchase of the Notes; the Closing
Section 1.3 Purchaser’s Representations and Warranties
(a) Each Purchaser represents that it is purchasing the Notes to be purchased by it solely for its own account and not as nominee or agent for any other Person and not with a view to, or for offer or sale in connection with, any distribution thereof (within the meaning of the Securities Act) that would be in violation of the securities laws of the United States of America or any state thereof, without prejudice, however, to each Purchaser’s right at all times to sell or otherwise dispose of all or any part of such Notes pursuant to a registration statement under the Securities Act or pursuant to an exemption from the registration requirements of the Securities
Act, and subject, nevertheless, to the disposition of each Purchaser’s property being at all times within its control.
(i) is knowledgeable, sophisticated and experienced in business and financial matters;
(ii) has previously invested in securities similar to the Notes and fully understand the limitations on transfer described in Section 1.3(b) and the restrictions on sales and other dispositions in the Note Documents;
(iii) is able to bear the economic risk of its investment in the Notes and is currently able to afford the complete loss of such investment;
(iv) is an “accredited investor” as defined in Regulation D promulgated under the Securities Act;
(v) understands that:
(A) the Notes have not been registered under the Securities Act and are being issued by the Company in transactions exempt from the registration requirements of the Securities Act; and
(B) the Notes may not be offered or sold except pursuant to an effective registration statement under the Securities Act or pursuant to an applicable exemption from registration under the Securities Act; and
(C) the exemption from registration afforded by Rule 144 (the provisions of which are known to such Purchaser) promulgated under the Securities Act depends on the satisfaction of various conditions, and that, if applicable, Rule 144 may afford the basis for sales only in limited amounts.
(b) If any Purchaser desires to sell or otherwise dispose of all or any part of the Notes (other than to a Permitted Transferee or pursuant to Rule 144 or Rule 144A or an effective registration statement under the Securities Act), if requested by the Company, it will deliver to the Company an opinion of counsel, reasonably satisfactory in form and substance to the Company, that an exemption from registration under the Securities Act is available. Upon original issuance thereof, and until such time as the same is no longer required under the applicable requirements of the Securities Act, the Notes (and all securities issued in exchange therefor or substitution thereof) shall bear the following legend:
Section 1.4 Outside Closing Date
Section 1.5 Interest
(a) The Company shall pay interest on the principal amount of the Notes (measured on the date immediately preceding the date such interest payment is due) at a variable rate that will be reset quarterly commencing March 31, 2004, from the date of this Agreement until maturity. The interest rate for any period beginning from and including a LIBOR Reset Date to but excluding the next LIBOR Reset Date will be equal to the 3-Month LIBOR Rate plus the Applicable Spread per annum. The initial interest rate for the Notes for the period from and including the Closing Date to but excluding the first LIBOR Reset Date will be calculated using 3-Month LIBOR as determined by the Company on the second London Banking Day preceding the Closing Date.
(b) The Company will determine, and notify to the Holders its determination of, 3-Month LIBOR on the second London Banking Day preceding the related LIBOR Reset Date (the “LIBOR Determination Date”). The initial LIBOR Determination Date for the initial interest period will be the second London Banking Day preceding the Closing Date.
(c) The Company will pay interest quarterly in arrears on each March 31, June 30, September 30, and December 31 of each year (each, an “Interest Payment Date”). Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from the Closing Date, at the rate in effect for such period; provided that if there is no existing Default in the payment of interest, and if a Note is authenticated between a record date referred to in the Note and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date. Interest will be computed on the basis of a 360 day year and actual days elapsed in each relevant interest period.
(d) So long as any Event of Default shall have occurred and be continuing, the unpaid principal amount of each Note and, to the extent not paid when due, each other amount payable hereunder and under the Notes (provided that the Company shall have received notice that such other amount is payable), shall bear interest (including post-petition interest in any proceeding under any Bankruptcy Law) at a rate per annum equal to 2% in excess of the rate then in effect.
(e) Notwithstanding anything to the contrary set forth in this Agreement and the Notes, if a court of competent jurisdiction determines in a final order that the rate of interest payable hereunder exceeds the highest rate of interest permissible under law (the “Maximum Lawful Rate”), then so long as the Maximum Lawful Rate would be so exceeded, the rate of interest payable hereunder shall be equal to the Maximum Lawful Rate; provided, that if at any time thereafter the rate of interest payable hereunder is less than the Maximum Lawful Rate, the Company shall continue to pay interest hereunder at the Maximum Lawful Rate until such time as the total interest received by the Holders is equal to the total interest which would have been received had the interest rate payable hereunder been (but for the operation of this paragraph) the interest rate payable since the Closing Date as otherwise provided in this Agreement. Thereafter, interest hereunder shall be paid at the rate(s) of interest and in the manner provided in this Agreement and the Notes, unless and until the rate of interest again exceeds the Maximum Lawful Rate, and at that time this paragraph shall again apply. In the event that a court determines that the Holders have received interest hereunder in excess of the Maximum Lawful Rate, the amount of such excess interest shall be applied against (i) any accrued and unpaid interest on the Notes, (ii) the principal amount and premium, if any, then outstanding under the Notes, and (iii) any such excess interest payments remaining with the Holders after such application shall be refunded to the Company. In no event shall the total interest received by any Holder pursuant to the terms hereof exceed the amount which such Holder could lawfully have received had the interest due hereunder been calculated for the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is calculated pursuant to this paragraph, such interest shall be calculated at a daily rate equal to the Maximum Lawful Rate divided by the number of days in the year in which such calculation is made.
Section 1.6 Expenses
(i) to pay or reimburse each Holder and the Collateral Agent for their respective reasonable out-of-pocket costs and expenses incurred in connection with the development, preparation and execution of, and any amendment, supplement or modification to, this Agreement and the other Note Documents and any other documents prepared in connection herewith or therewith, and the consummation and administration of the transactions contemplated hereby and thereby, including (A) the reasonable fees and disbursements and other charges of one counsel to the Holders (plus any local counsel) and one counsel to the Collateral Agent
(plus any local counsel), (B) all reasonable out-of-pocket expenses incurred by each Holder and the Collateral Agent and or their respective general partners, if applicable, in connection with the transactions contemplated by this Agreement and the other documents referred to herein, including travel and lodging expenses and (C) all costs incurred in connection with its review of the Company’s business and operations;
(ii) to pay or reimburse each Holder and the Collateral Agent for all of their respective costs and expenses incurred in connection with the enforcement or preservation of any rights under this Agreement, the other Note Documents and any other documents prepared in connection herewith or therewith, including the fees and disbursements of counsel (including the allocated fees and disbursements and other charges of in-house counsel) to each Holder and of counsel to the Collateral Agent;
(iii) to pay, indemnify, or reimburse each Holder and the Collateral Agent for, and hold each Holder and the Collateral Agent harmless from, any and all recording and filing fees and any and all liabilities with respect to, or resulting from any delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to be payable in connection with the execution and delivery of, or consummation or administration of any of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver or consent under or in respect of, this Agreement, the other Note Documents and any such other documents, and;
(iv) to pay all other reasonable out-of-pocket expenses, including reasonable fees and expenses of one counsel (plus any local counsel), incurred by the Company in connection with the transactions contemplated by this Agreement; and
(v) to pay such fees of the Collateral Agent as are agreed from time to time and the reasonable out-of-pocket expenses of the Collateral Agent.
Section 1.7 Indemnification
(i) any Losses arising from the use by unauthorized Persons of Information or other materials sent through electronic, telecommunications or other information transmissions systems that are intercepted by such Persons;
(ii) any special, indirect, consequential or punitive damages arising out of or in connection with the Note Documents or the transactions contemplated hereby or thereby (or any other document or instrument executed herewith or pursuant hereto or thereto); or
(iii) any other Losses except to the extent, and only to the extent, that any Losses directly result from action or failure to act on the part of any Indemnified Party which is finally judicially determined to arise primarily from such Indemnified Party’s either gross negligence or willful misconduct.
(i) the Indemnifying Parties have agreed in writing to pay such expenses;
(ii) the Indemnifying Parties have failed to assume the defense and employ counsel; or
(iii) the named parties to any such action (including any impleaded parties) include any Indemnified Party and any Indemnifying Party, and such Indemnified Party shall have been advised by outside counsel that there
may be one or more legal defenses available to it which are inconsistent with or additional to those available to the Indemnifying Party;
Section 1.8 Contribution
Section 1.9 Register of Notes; etc.
(a) The Company will maintain a register for the Notes in which it will provide for the registration and transfer of the Notes. The name and address of each Holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. Prior to due presentment for registration of transfer, the Person in whose name any Note shall be registered shall be deemed and treated as the owner and Holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary.
(b) Upon surrender for registration of transfer of any Note, the Company, at its expense, will execute and deliver, in the name of the designated transferee or transferees, one or more new Note certificates of the same type, and of a like aggregate principal amount.
(c) Note certificates may be exchanged at the option of any Holder thereof for Note certificates of a like aggregate principal amount. Whenever any Note certificates are so surrendered for exchange, the Company, at its expense, will execute and deliver the Note certificates that the Holder making the exchange is entitled to receive.
(d) All Note certificates issued upon any registration of transfer or exchange of such Note will be the legal and valid obligations of the Company, evidencing the same interests, and entitled to the same benefits, as the Notes surrendered upon such registration of transfer or exchange.
(e) Every Note certificate presented or surrendered for registration of transfer or exchange will (if so required by the Company) be duly endorsed or will be accompanied by a written instrument of transfer in form satisfactory to the Company duly executed by the Holder thereof or its attorney duly authorized in writing.
Section 1.10 Further Action
Section 1.11 Taxes
(a) All payments made by the Company under this Agreement or any other Note Document shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding net income taxes and franchise taxes (imposed in lieu of net income taxes) imposed on the Collateral Agent or any Holder as a result of a present or former connection between the Collateral Agent or such Holder and the jurisdiction of the Governmental Authority imposing such tax or any political subdivision or taxing authority thereof or therein (other than any such connection arising solely from the Collateral Agent’s or such Holder’s having executed, delivered or performed its obligations or received a payment under, or enforced, this Agreement or any other Note Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) or any Other Taxes are required to be withheld from any amounts payable to the Collateral Agent or any Holder hereunder, the amounts so payable to the Collateral Agent or such Holder shall be increased to the extent necessary to yield to the Collateral Agent or such Holder (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, however, that the Company or any Guarantor shall not be required to increase any such amounts payable to the Collateral Agent or any Holder with respect to any Non-Excluded Taxes (i) that are attributable to such Holder’s failure to comply with the
requirements of paragraph (d) or (e) of this Section 1.11 in the case of any Non-U.S. Holder, that are United States withholding taxes imposed on amounts payable to the Collateral Agent or such Holder at the time the Collateral Agent or such Holder becomes a party to this Agreement, except to the extent that the Collateral Agent’s or such Holder’s assignor (if any) was entitled, at the time of assignment, to receive additional amounts from the Company with respect to such Non-Excluded Taxes pursuant to this Section 1.11(a). The Company or the applicable Guarantor shall make any required withholding and pay the full amount withheld to the relevant tax authority or other Governmental Authority in accordance with applicable Requirements of Law.
(b) In addition, the Company shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Company, as promptly as possible thereafter the Company shall send to the Collateral Agent for the account of the Collateral Agent or relevant Holder, as the case may be, a certified copy of an original official receipt received by the Company showing payment thereof. If the Company fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to the Collateral Agent the required receipts or other required documentary evidence, the Company shall indemnify the Collateral Agent and the Holders for any incremental taxes, interest or penalties that may become payable by the Collateral Agent or any Holder as a result of any such failure. The agreements in this Section 1.11 shall survive the termination of this Agreement and the payment of the Notes and all other amounts payable hereunder.
(d) Each Holder that is not a citizen or resident of the United States of America, a corporation, partnership or other entity created or organized in or under the laws of the United States of America (or any jurisdiction thereof), or any estate or trust that is subject to federal income taxation regardless of the source of its income (a “Non-U.S. Holder”) shall deliver to the Company two copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Holder claiming exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with respect to payments of “portfolio interest” a statement substantially in the form of Exhibit B to the effect that such Holder is eligible for a complete exemption from withholding of U.S. taxes under Section 871(h) or 881(c) of the Code and a Form W-8BEN, or any subsequent versions thereof or successors thereto properly completed and duly executed by such Non-U.S. Holder claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all payments by the Company under this Agreement and the other Note Documents. Such forms shall be delivered by each Non-U.S. Holder on or before the date it becomes a party to this Agreement. In addition, each Non-U.S. Holder shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Holder. Each Non-U.S. Holder shall promptly notify the Company at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Company (or any other form of certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other provision of this paragraph, a Non-U.S. Holder shall not be required to deliver any form pursuant to this paragraph that such Non-U.S. Holder is not legally able to deliver.
(e) A Holder that is entitled to an exemption from or reduction of non-U.S. withholding tax under the law of the jurisdiction in which the Holder is located, or any treaty to which such jurisdiction is a party, with respect to payments under this Agreement shall deliver to the Holder, at the time or times prescribed by applicable law or reasonably requested by the Holder, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate, provided that such Holder is legally entitled to complete, execute and deliver such documentation and in such Holder’s reasonable judgment such completion, execution or submission would not materially prejudice the legal position of such Holder.
Section 2.1 Representations and Warranties True; No Event of Default
Section 2.2 Compliance with this Agreement
Section 2.3 GameSpy Acquisition
Section 2.4 Compliance Certificates
(a) Officer’s Certificate. Each Purchaser and the Collateral Agent shall have received a certificate dated the Closing Date and signed by each of (i) the Chief Executive Officer of the Company and (ii) the Chief Financial Officer or Controller of the Company, certifying that the conditions set forth in Sections 2.1, 2.2, 2.3, 2.7, 2.8(b), 2.9, 2.11 and 2.19 have been satisfied on and as of such date and further certifying as to such other matters as any Purchaser may request in the exercise of its reasonable discretion.
(b) Secretary’s Certificate. Each Purchaser and the Collateral Agent shall have received a certificate, dated the Closing Date and signed by the Secretary of the Company and each Guarantor (other than Two Cents, Inc.), certifying as to (i) the board resolutions and Charter Documents attached thereto, (ii) the incumbency of the Company’s or Guarantors, as applicable, officers executing the Note Documents, and (iii) all other corporate proceedings relating to the authorization, execution and delivery of the Notes and the Note Documents.
Section 2.5 Opinion of Counsel
Section 2.6 Issuance of the Notes
Section 2.7 Sources and Uses of Funds
Section 2.8 Financial Statements
(a) The Company shall have delivered to each Purchaser (i) audited financial statements for the Company and GameSpy for fiscal year 2003, and (ii) internal consolidated financial statements of the Company and GameSpy for (A) each fiscal quarter occurring in fiscal year 2001, and (B) each month since January 1, 2002, and each such internal financial statement must be satisfactory to each of the Purchasers. The Company shall have delivered to each Purchaser (i) a pro forma consolidated balance sheet of the Company and its Subsidiaries as of January 31, 2004, prepared in accordance with Regulation S-X, that gives pro forma effect to the GameSpy Acquisition and the transactions contemplated by this Agreement as if they had occurred on such date, and (ii) a pro forma consolidated income statement and pro forma
consolidated statement of cash flows of the Company and its Subsidiaries for the twelve months ending January 31, 2004, prepared in accordance with Regulation S-X, that gives pro forma effect to the GameSpy Acquisition and the transactions contemplated by this Agreement as if they had occurred on February 1, 2003.
(b) On a combined basis after giving effect to the GameSpy Acquisition and the transactions contemplated by this Agreement as if they had occurred on February 1, 2003, (i) the Consolidated EBITDA of the Company and its Subsidiaries for the twelve months ending December 31, 2003, shall be at least $5.6 million and (ii) the consolidated revenue of the Company and its Subsidiaries for the twelve months ending December 31, 2003, shall be at least $36.5 million. On a combined basis after giving effect to the GameSpy Acquisition and the transactions contemplated by this Agreement as if they had occurred on December 31, 2003, the total Funded Indebtedness (excluding accounts payable and accrued expenses) of the Company and its Subsidiaries as of such date shall not exceed $42.5 million.
Section 2.9 Assets and Liabilities
Section 2.10 Proceedings Satisfactory
Section 2.11 Consents and Permits
Section 2.12 Solvency Certificate
Section 2.13 Note Documents
(i) this Agreement;
(ii) one or more Notes in the aggregate amount set forth opposite such Purchaser name on the signature pages hereto; and
(iii) the Security Documents.
Section 2.14 Security
(i) certificates representing all Pledged Securities (as defined in the Security Agreement), together with executed and undated stock powers and/or assignments in blank;
(ii) instruments representing all intercompany Indebtedness that would be required to be evidenced by a demand promissory note if incurred after the Closing Date, together with executed and undated instruments of assignment in blank;
(iii) certificate of insurance required pursuant to Section 5.3(b) of the Guarantee and Collateral Agreement;
(iv) appropriate financing statements or comparable documents of, and executed by, the appropriate entities in proper form for filing under the provisions of the UCC and applicable domestic or local laws, rules or regulations in each of the offices where such filing is necessary or appropriate, in the Collateral Agent’s sole discretion, to grant to the Holders a perfected priority Lien on such Collateral superior to and prior to the rights of all third persons other than the holders of Permitted Liens;
(v) UCC, judgment and tax lien search reports listing all effective financing statements or comparable documents which name the Company or any Guarantor as debtor and which are filed in those jurisdictions in which any of such Collateral is located and the jurisdictions in which the Company’s or any Guarantor’s principal place of business is located in the United States, together with copies of such existing financing statements, none of which shall encumber such Collateral covered or intended or purported to be covered by the Security Documents other than Permitted Liens;
(vi) evidence of the completion of all filings of each such Security Document, including with the United States Patent and Trademark Office and the United States Copyright Office, and delivery, recordation and filing, if necessary, of such other security and other documents, including UCC-3 termination statements with respect to UCC filings that do not constitute Permitted Liens, as may be necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the Liens created, or purported or intended to be created, by such Security Documents; and
(vii) evidence that all other actions necessary or, in the reasonable opinion of the Collateral Agent, desirable to perfect the security interest created by the Security Documents have been taken.
Section 2.15 Payment of Fees and Expenses
Section 2.16 No New Information
Section 2.17 Purchase Permitted by Applicable Laws; Legal Investment
(a) shall not be prohibited by any applicable law or governmental regulation;
(b) shall not subject it to any material penalty under or pursuant to any applicable law or governmental regulation; and
(c) shall be permitted by the laws and regulations of the jurisdictions to which it is subject.
Section 2.18 No Material Adverse Change
(a) since December 31, 2003, no material adverse change and no event, condition, occurrence or development that, individually or in the aggregate, could reasonably be expected to result in a material adverse change, in:
(i) the business, results of operations, cash flows, property, assets, liabilities, condition (financial or otherwise), management or prospects of the Company and GameSpy and their respective Subsidiaries taken as a whole,
(ii) the industry of the Company or GameSpy,
(iii) the projections of the Company and its Subsidiaries (including after the GameSpy Acquisition) or the assumptions underlying such projections as delivered to the Purchasers in the bound volume entitled “IGN.com Finance Review, dated January 23, 2004,” and
(b) no litigation, investigation or other proceeding pending or threatened that, (i) if adversely determined, could reasonably be expected to result in material adverse impact on the Company, GameSpy and their respective Subsidiaries taken as a whole, or their respective businesses, or the ability of any of them to repay the Notes or otherwise perform any of their respective obligations under the Acquisition Documents (including the GameSpy Financing Documents, or (ii) challenges or purports to challenge any of the transactions contemplated by this Agreement or the Acquisition Documents or on any of the rights or remedies of the Purchasers under the Note Documents or the GameSpy Financing Documents.
Section 2.19 Disbursement Instructions
Section 2.20 Other Assurances
Section 3.1 Service Charges
Section 3.2 Direct Payment
(a) The Company will pay or cause to be paid all amounts payable with respect to any Note (without any presentment of such Note and without any notation of such payment being made thereon) by crediting (before 1:00 p.m., New York time), by intra-bank or federal funds wire transfer to each Holder’s account in any bank in the United States as may be designated and specified in writing by such Holder on the day of the applicable payment. Each Purchaser’s initial bank account for this purpose is on its signature page hereto.
(b) Notwithstanding anything to the contrary contained in the Notes, if any principal amount payable with respect to a Note is payable on a Legal Holiday, then the Company will pay such amount on the next succeeding Business Day, and interest will accrue on such amount until the date on which such amount is paid and payment of such accrued interest will be made concurrently with the payment of such amount; provided that the Company may elect to pay in full (but not in part) any such amount on the last Business Day prior to the date such payment otherwise would be due, and no such additional interest will accrue on such amount.
(c) Notwithstanding anything to the contrary contained in the Notes, if any interest amount payable with respect to a Note is payable on a Legal Holiday, then the Company will pay such amount on the next succeeding Business Day. The interest amount payable will include interest calculated from the last scheduled interest payment date up to and including the current scheduled interest payment date.
Section 3.3 Lost, etc. Notes
(a) evidence to its satisfaction of the destruction, loss or theft of any Note; and
(b) such security or indemnity as may be reasonably required by the Company and any agent to save each of the Company and such agent harmless,
Section 3.4 Inspection
Section 3.5 Private Placement Number
Section 4.1 Organization, Standing and Qualification
(a) Each of the Company and its Subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; has all requisite corporate and authority to own or lease and operate its properties and to carry on its business as now conducted and as proposed to be conducted; and is duly qualified or licensed to do business as a foreign corporation in good standing in all jurisdictions in which it owns or leases property or in which the conduct of its business requires it so to qualify or be licensed, except where the failure to be so qualified or licensed would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has heretofore delivered to Latham & Watkins LLP complete and correct copies of the Charter Documents of the Company and each of its Subsidiaries as currently in effect and has identified on Schedule 4.1(a) all jurisdictions in which the Company and each of its Subsidiaries is qualified or licensed to do business as a foreign corporation.
(b) Each of the Note Parties has all requisite corporate power and authority to enter into and perform all of its obligations under the Note Documents to which it is a party and to carry out the transactions contemplated hereby and thereby.
(c) The Company has identified on Schedule 4.1(c):
(i) the name and jurisdiction of incorporation or organization of each of its Subsidiaries; and
(ii) the percentage of the issued and outstanding Capital Stock and other equity securities (including rights, warrants and options to acquire, and all securities convertible into or exchangeable for, such Capital Stock) of each such Subsidiary owned by the Company or any of its Wholly Owned Subsidiaries.
(d) No Subsidiary of the Company is a party to, or otherwise subject to, any law, restriction or any agreement (other than this Agreement and the agreements listed on Schedule 4.1(d) and customary limitations imposed by the applicable law) restricting the ability of such Subsidiary to pay dividends out of profits or make any other similar distributions of profits to the Company or any of its Subsidiaries that owns outstanding shares of Capital Stock or similar equity securities of such Subsidiary, except for such restrictions that would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4.2 Capitalization
(i) 1,500,000 shares of Common Stock, of which (A) 1,000,000 shares are issued and outstanding and (B) 25,200 shares have been reserved for issuance pursuant to various employee stock option plans, and
(ii) 70,500,000 million shares of Preferred Stock, of which (A) 70,273,074 shares are designated Series A Preferred Stock, of which 34,923,565 shares are issued and outstanding, and (B) 226,926 shares of Series B Preferred Stock, none of which are issued and outstanding.
(i) 1,400,000 shares of Common Stock, of which (A) 1,035,631 shares will be issued and outstanding, owned of record by the Persons in the respective amounts set forth on Schedule 5.03(b) to the Securities Purchase Agreement, (B) 56,298 shares of which are reserved for issuance upon
conversion of the Series B Preferred Stock, (C) 56,298 shares of which are reserved for issuance upon exercise of the Warrant issued pursuant to the Securities Purchase Agreement, and (D) 37,000 shares of which are reserved for issuance pursuant to the Equity Incentive Plan; and
(ii) 40,000,000 shares of Preferred Stock, of which (A) 39,922,957 shares will be designated as Series A Preferred Stock, all of which are issued and outstanding, owned of record by the Persons in the respective amounts set forth on Schedule 5.03(b) to the Securities Purchase Agreement, (B) 56,298 shares are designated as Series B Preferred Stock, all of which are issued and outstanding, owned of record by the Persons in the respective amounts set forth on Schedule 5.03(b) to the Securities Purchase Agreement, and (C) 20,745 shares shall be undesignated preferred stock, none of which are outstanding.
(i) there are no outstanding subscriptions, warrants, options, calls or commitments of any character relating to or entitling any Person to purchase or otherwise acquire any Capital Stock or other equity securities of the Company or any of its Subsidiaries;
(ii) there are no obligations or securities convertible into or exchangeable or exercisable for shares of any Capital Stock or other equity securities of the Company or any of its Subsidiaries or any commitments of any character relating to or entitling any Person to purchase or otherwise acquire any such obligations or securities; and
(iii) there are no preemptive or similar rights to subscribe for or to purchase any Capital Stock or other equity securities of the Company or any of its Subsidiaries;
(i) all holders of Capital Stock of the Company, all holders of outstanding rights, warrants and options to acquire Capital Stock of the Company and all holders of any other obligations or securities convertible into or exchangeable or exercisable for shares of Capital Stock;
(ii) the title of the class and series, and amount, of securities held by each of such holders;
(iii) the number of shares of Common Stock into which the securities held by each of such holders may be exchanged, exercised or converted; and
(iv) the total number of shares of Common Stock that are reserved for future issuance for any purpose.
Section 4.3 Directors, Owners and Affiliates of the Company
(i) of the Affiliates controlled by the Company, other than its Subsidiaries; and
(ii) of the Company’s directors and senior officers.
Section 4.4 Authorization of the Note Documents
(i) to enter into and perform all of its obligations under each of the Note Documents and the Acquisition Documents; and
(ii) to issue and perform all of its obligations with respect to the Notes,
(i) to enter into and perform all of its obligations under this Agreement; and
(ii) to perform all of its Obligations pursuant to its Guarantee of the Notes,
Section 4.5 No Violation
(i) violate any provision of the Charter Documents of the Company or any of its Subsidiaries;
(ii) violate any statute, law, rule or regulation or any judgment, decree, order, regulation or rule of any court or governmental authority to which the Company or any of its Subsidiaries or any of their respective assets or properties may be subject, except for such violations as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
(iii) permit or cause the acceleration of the maturity of any Indebtedness or other obligation of the Company or any of its Subsidiaries; or
(iv) violate, or conflict with, or constitute a default under, or permit the termination of, or require the consent of any Person under, or result in the creation of any Lien upon any asset or property of the Company or any of its Subsidiaries under any mortgage, indenture, loan agreement, note, debenture or other agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries (or the respective assets or properties of any of them) may be bound, other than such violations, conflicts, defaults, terminations and Liens, or such failures to obtain consents, as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 4.6 No Defaults
(i) a default or event of default (or that would constitute a default or event of default with the giving of notice or the passage of time or both) under this Agreement or any other GameSpy Financing Document; or
(ii) an event of default under any other agreement for borrowed money, and
Section 4.7 Use of Proceeds
Section 4.8 Outstanding Indebtedness; Liens
Section 4.9 Financial Statements; Projections; No Undisclosed Liabilities
(a) The Company has delivered to each Purchaser copies of the financial statements of the Company and its Subsidiaries listed on Schedule 4.9(a). All such financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Company and its Subsidiaries as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject to the normal year-end adjustments and the absence of footnotes in the case of the unaudited financial statements).
(b) The Company has delivered to each Purchaser copies of the financial projections listed on Schedule 4.9(b) (the “Projections”). All of those financial projections were prepared by the Company in good faith based upon reasonable assumptions. It is understood and agreed that the Projections are estimates and not a guarantee of actual results.
(c) Except as set forth on Schedule 4.9(c), neither the Company nor any of its Subsidiaries has any liability (absolute or contingent) except:
(i) those shown on the most recent balance sheets described in Section 4.9(a) hereof;
(ii) those incurred in the ordinary course of business since the date of such balance sheets;
(iii) those incurred under the Note Documents and the Acquisition Documents; and
(iv) those that would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(d) The pro forma financial statements of the Company and its Subsidiaries to be delivered pursuant to Section 2.8 will be prepared in accordance with the accounting requirements of Rule 11-02 of Regulation S-X and other accounting requirements of the Exchange Act and the related published rules and regulations thereunder that would be applicable to a registration statement filed under the Securities Act. The assumptions used in preparing the pro forma financial statements delivered hereby provide a reasonable basis for presenting the significant effects directly attributable to the transactions or events described therein, the related pro forma adjustments give appropriate effect to those assumptions, and the pro forma columns therein reflect the proper application of those adjustments to the corresponding historical financial statement amounts
Section 4.10 No Material Adverse Change
Section 4.11 Litigation
Section 4.12 Title to and Condition of Properties
Section 4.13 Environmental Compliance
(a) Except as disclosed on Schedule 4.13 and except as would not, either individually or in the aggregate, reasonably be expected to have a Material Adverse Effect:
(i) each of the Company and its Subsidiaries:
(A) is in compliance with the provisions of all Environmental Laws relating to its business, properties and assets, including to the Real Property owned, leased or operated by any of them or the ownership, use, control, management, operation or occupancy thereof; and
(B) possesses all Environmental Permits that may be necessary for such ownership, use, control, management, operation or occupancy as may otherwise be necessary for the operation of its business;
(ii) none of the Company or any of its Subsidiaries has violated any provision of any applicable Environmental Laws; and
(iii) none of the Company or any of its Subsidiaries has any liability, absolute or contingent, under any Environmental Law, including, any liability related to the “release” (as defined in CERCLA) of, or any containment caused by, any Hazardous Materials.
(b) To the knowledge of the Company, there have been no discharges, emissions, or releases of Hazardous Material on, upon, under, into or from any Real Property, or any real property owned, leased or operated by any predecessor in interest of the Company and any of its Subsidiaries.
(c) To the knowledge of the Company, no current or former Real Property of the Company or any of its Subsidiaries or any current or former Real Property of any predecessor in interest of the Company or any of its Subsidiaries is listed or proposed for listing on the National Priorities List or the Comprehensive Environmental Response, Compensation, and Liability Information System, both as promulgated under CERCLA, or any comparable state list, and none of the Company or any of its Subsidiaries has received any written notification of potential or actual liability, or any written request for information, with respect to any current or former Real Property pursuant to CERCLA or any comparable state or local Environmental Laws.
Section 4.14 Intellectual Property
(i) the Company and its Subsidiaries own, possess or license all right, title and interest in and to all licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks, trade dress, trade secrets, know-how, computer software, data source code, object code and documentation thereof, trade names, domain names and corporate names and registrations or rights thereto (“Intellectual Property Rights”), that are required to conduct its business as currently being conducted and as proposed to be conducted in the future, free and clear of all Liens and of claims of others;
(ii) there have been no claims made or threatened against the Company or any of its Subsidiaries asserting the invalidity, misuse or unenforceability of any of the Intellectual Property Rights owned, possessed or licensed by them, and no product of the Company or any of its Subsidiaries infringes, in any material respect, any license, permit, franchise, authorization, patent, copyright, service mark, trademark, trade name or other right owned by any other Person; and
(iii) the Company and its Subsidiaries have taken all necessary actions to maintain the Intellectual Property Rights that they own, possess and license, and there is no material violation by any Person of any right of the Company or any of its Subsidiaries with respect to Intellectual Property Rights owned, possessed, licensed or used by the Company or any of its Subsidiaries.
Section 4.15 Taxes
(i) all tax returns required to be filed by the Company or any of its Subsidiaries in any jurisdiction (including foreign jurisdictions) have been timely filed, and all such tax returns are true, correct and are complete;
(ii) all taxes, assessments, fees and other charges due from the Company or any of its Subsidiaries that are due and payable have been paid other than any taxes being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and for which adequate reserves or other appropriate provisions have been made in accordance with GAAP;
(iii) the Company knows of no actual or proposed material additional tax assessments for any fiscal period against the Company or any of its Subsidiaries;
(iv) none of the Company’s or any of its Subsidiaries’ tax returns are under audit, and no waivers of the statute of limitations or extensions of time with respect to any tax returns have been granted by the Company or any of its Subsidiaries;
(v) neither the Company nor any of its Subsidiaries has received written notice from any governmental agency in a jurisdiction in which such entity does not file a tax return stating that such entity is or may be subject to taxation by that jurisdiction; and
(vi) the charges, accruals and reserves on the books of the Company and its Subsidiaries in respect of federal, state or other taxes for all fiscal periods are adequate in accordance with GAAP.
Section 4.16 ERISA
Section 4.17 Material Contracts
Section 4.18 Compliance with Laws; Charter Documents; Material Contracts
Section 4.19 Labor Relations
(i) no unfair labor practice complaint pending or to the best knowledge of the Company threatened against the Company or any of its Subsidiaries before the National Labor Relations Board and no grievance or arbitration proceeding arising out of or under collective bargaining agreements is so pending or known to be threatened;
(ii) no strike, labor dispute, slowdown or stoppage pending or to the best knowledge of the Company threatened against the Company or any of its Subsidiaries; and
(iii) no union representation question existing with respect to the employees of the Company or any of its Subsidiaries and no union organizing activities are taking place.
Section 4.20 No Violation of Regulations of Board of Governors of Federal Reserve System
Section 4.21 Private Offering
Section 4.22 Governmental Regulations
Section 4.23 Brokers
Section 4.24 Solvency
Section 4.25 Full Disclosure
Section 4.26 Representations in Securities Purchase Agreement
Section 4.27 Survival of Representations and Warranties
Section 4.28 Security Interests
Section 4.29 Real Property
Section 5.1 Payment of Notes
Section 5.2 Delivery of Financial and Other Statements and Reports
(a) The Company will deliver to each Holder the following:
(i) Monthly Financial Statements. As soon as available, but in any event not later than 30 days after the last day of each month (except for the last month of each fiscal quarter), a consolidated balance sheet of the Company and its Subsidiaries as of the end of such month and related consolidated statements of operations and cash flows, of the Company and its Subsidiaries for such month and for the portion of the fiscal year through the end of such month, together with related consolidating statements for such periods (provided that such consolidating statements are being prepared for the Company’s management or other creditors), all
in reasonable detail and prepared in accordance with GAAP consistently applied, and accompanied by a comparison of current month and year-to-date results as reported in such consolidated statements to (A) results for the corresponding periods of the prior fiscal year and (B) results projected for such periods in the budget and business plans delivered to Holders pursuant to Section 5.2(a)(iv) at the commencement of the then current fiscal year;
(ii) Quarterly Financial Statements. As soon as available, but in any event not later than 45 days after the last day of each fiscal quarter (except for the last fiscal quarter of each fiscal year), a consolidated balance sheet of the Company and its Subsidiaries as of the end of such quarter and related consolidated statements of operations, stockholders’ equity and cash flows, of the Company and its Subsidiaries for such quarter and for the portion of the fiscal year through the end of such quarter, together with related consolidating statements for such periods (provided that such consolidating statements are being prepared for the Company’s management or other creditors), all in reasonable detail and prepared in accordance with GAAP consistently applied, and accompanied by a comparison of current quarter and year-to-date results as reported in such consolidated statements to (A) results for the corresponding periods of the prior fiscal year and (B) results projected for such periods in the budget and business plans delivered to Holders pursuant to Section 5.2(a)(iv) at the commencement of the then current fiscal year;
(iii) Annual Financial Statements. As soon as available, but in any event not later than 90 days after the close of each fiscal year, an audited consolidated balance sheet of the Company and its Subsidiaries as of the close of such fiscal year, and related audited consolidated statements of operations, cash flows and changes in stockholder’s equity of the Company and its Subsidiaries for such fiscal year, reported on (without any material qualification arising from the scope of the audit or with respect to the continuance of the Company and its Subsidiaries as going concerns) by a nationally recognized firm of independent certified public accountants and prepared in accordance with GAAP consistently applied;
(iv) Budgets. As soon as available, but in any event not later than 60 days after the first day of each fiscal year, a reasonably detailed consolidated monthly budget for the Company and its Subsidiaries for the immediately forthcoming fiscal year, which plan shall have been approved by the Company’s board of directors;
(v) Auditor Reports. Promptly upon receipt thereof (unless restricted by applicable professional standards), copies of all material reports submitted to the Company by independent certified public accountants in connection with each annual, interim or special audit of the financial statements of the Company and its Subsidiaries made by such accountants, including any
comment letter submitted by such accountants to management in connection with their annual audit;
(vi) Information Provided to Other Securityholders. Concurrently with the provision of the same to or by the holders of Senior Subordinated Notes, Common Stock, Series A Preferred Stock or Series B Preferred Stock copies of any financial or other report or notice delivered to, or received from, any such holders, in each case as a class; and
(vii) Other Information. On an as requested basis, any other information reasonably requested by any Holder.
(b) Compliance Certificates. The Company will deliver to each Holder, together with the financial statements under Section 5.2(a)(ii), within 45 days after the end of each fiscal quarter, an Officers’ Certificate stating that a review of the activities of the Company and its Subsidiaries during the preceding fiscal quarter has been made under the supervision of the signing officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Agreement, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Agreement and is not in Default in the performance or observance of any of the terms, provisions and conditions of this Agreement (or, if a Default or Event of Default has occurred, describing all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments on account of the principal of, or interest and premium, if any, on the Notes is prohibited or if such event has occurred, a description of the event and what action the Company is taking or proposes to take with respect thereto.
(c) Accountant Letters. So long as not contrary to the then current recommendations of the American Institute of Certified Public Accountants, the year-end financial statements delivered pursuant to Section 5.2(iii) will be accompanied by a written statement of the Company’s independent public accountants (who shall be a firm of established national reputation or otherwise approved by the Majority Holders) that in making the examination necessary for certification of such financial statements, nothing has come to their attention that would cause them to believe that any Default or Event of Default has occurred or, if any such Default or Event of Default has occurred, specifying the nature and period of existence thereof, it being understood that such accountants shall not be liable directly or indirectly to any Person for any failure to obtain knowledge of any such Default or Event of Default. The Majority Holders hereby approve Burr, Pilger & Mayer as the independent public accountants of the Company for purposes of delivering the first report to be delivered pursuant to this Section 5.2(c).
(d) Notice of Defaults. So long as any of the Notes are outstanding, the Company will deliver to each Holder, forthwith upon any officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 5.3 Taxes
Section 5.4 Insurance
Section 5.5 Corporate Existence
Section 5.6 Books and Records
Section 5.7 Compliance with Laws
Section 5.8 Use of Proceeds
Section 5.9 Offer to Purchaser with Excess Cash and Net Financing Proceeds
Section 5.10 Additional Collateral, etc.
(a) With respect to any Property acquired after the Closing Date by the Company or any of its Subsidiaries (other than (i) any Property described in Section 5.10(b) or Section 5.10(c) and (ii) Property acquired by an Excluded Foreign Subsidiary) as to which the Collateral Agent, for the benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as may be required under any applicable law or as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a security interest in such Property and (ii) take all actions necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in such Property subject only to Permitted Liens, including the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Collateral Agent.
(b) With respect to any new Subsidiary (other than an Excluded Foreign Subsidiary) created or acquired after the Closing Date (which, for the purposes of this paragraph, shall include any existing Subsidiary that ceases to be an Excluded Foreign Subsidiary), by the Company or any of its Subsidiaries, promptly (i) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement as may be required under any applicable law or as the Collateral Agent deems necessary or advisable to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Company or any of its Subsidiaries, (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a party to the Guarantee and Collateral Agreement and (B) to take such actions necessary or advisable to grant to the Collateral Agent for the benefit of the Secured Parties a perfected first priority security interest in the Collateral described in the Guarantee and Collateral Agreement with respect to such new Subsidiary, including the recording of instruments in the United States Patent and Trademark Office and the United States Copyright Offices, the execution and delivery by all
necessary persons of control agreements, and the filing of UCC financing statements in such jurisdictions as may be required by the Guarantee and Collateral Agreement or by law or as may be requested by the Collateral Agent, and (iv) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.
(c) With respect to any new Excluded Foreign Subsidiary created or acquired after the Closing Date by the Company or any of its Subsidiaries (other than any Excluded Foreign Subsidiaries), promptly (i) execute and deliver to the Collateral Agent such amendments to the Guarantee and Collateral Agreement or such other documents as may be required under any applicable law or as the Collateral Agent deems necessary or advisable in order to grant to the Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Capital Stock of such new Subsidiary that is owned by the Company or any of its Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided that in no event shall more than 65% of the total outstanding Capital Stock of any such new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to the Collateral Agent the certificates representing such Capital Stock, together with undated stock powers, in blank, executed and delivered by a duly authorized officer of the Company or such Subsidiary, as the case may be, and take such other action as may be necessary or, in the opinion of the Collateral Agent, desirable to perfect the Lien of the Collateral Agent thereon, and (iii) if requested by the Collateral Agent, deliver to the Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.
(d) Notwithstanding anything to the contrary in this Section 5.10, paragraphs (a), (b), (c) and (e) of this Section 5.10 shall not apply to any Property, new Subsidiary or new Excluded Foreign Subsidiary created or acquired after the Closing Date, as applicable, as to which the Collateral Agent has determined in its sole discretion that the collateral value thereof is insufficient to justify the difficulty, time and/or expense of obtaining a perfected security interest therein.
(e) With respect to any fee interest (or leasehold interest, to the extent such leasehold is created under a triple net ground lease or similar transaction) in any real property having a value (together with improvements thereof) of at least $100,000 acquired after the Closing Date by the Company or any of its Subsidiaries (other than any such real property owned by an Excluded Foreign Subsidiary), promptly (i) execute and deliver a first priority Mortgage in favor of the Collateral Agent, for the benefit of the Secured Parties, covering such real property, (ii) if requested by the Collateral Agent, provide the Holders with (A) title and extended coverage insurance, complying with the provisions of Section 5.10(f), covering such real property in an amount at least equal to the purchase price of such real property (or such other amount as shall be reasonably specified by the Collateral Agent) as well as a current ALTA survey thereof complying with the provisions of Section 5.10(g) together with a surveyor’s certificate, (B) flood insurance complying with the provisions of Section 5.10(h) and (C) any consents or estoppels reasonably deemed necessary or advisable by the Collateral Agent in connection with such Mortgage, each of the foregoing in form and substance reasonably satisfactory to the Collateral Agent and (iii) if requested by the Collateral Agent, deliver to the
Collateral Agent legal opinions relating to the matters described above, which opinions shall be in form and substance, and from counsel, reasonably satisfactory to the Collateral Agent.
(f) If requested by the Collateral Agent pursuant to Section 5.10(e), the Collateral Agent shall receive in respect of each mortgaged property a mortgagee’s title insurance policy (or policies) or marked up unconditional binder for such insurance. Each such policy shall (A) be in an amount satisfactory to the Collateral Agent; (B) be issued at ordinary rates; (C) insure that the Mortgage insured thereby creates a valid first Lien on, and security interest in, such Mortgaged Property free and clear of all defects and encumbrances, except for Permitted Liens disclosed therein; (D) name the Collateral Agent for the benefit of the Secured Parties as the insured thereunder; (E) be in the form of ALTA Loan Policy - 1970 form B (Amended 10/17/70 and 10/17/84) (or equivalent policies); (F) contain such endorsements and affirmative coverage as the Collateral Agent may reasonably request in form and substance acceptable to the Collateral Agent, including (to the extent applicable with respect to such mortgaged property and available in the jurisdiction in which such mortgaged property is located), the following: variable rate endorsement; survey endorsement; comprehensive endorsement; zoning (ALTA 3.1 with parking added) endorsement; first loss, last dollar and tie-in endorsement; access coverage; separate tax parcel coverage; contiguity coverage; usury; closing business; subdivision; environmental protection lien; CLTA 119.2 and CLTA 119.3 (for leased Real Estate, only); and such other endorsements as the Collateral Agent shall reasonably require in order to provide insurance against specific risks identified by the Collateral Agent in connection with such mortgaged property, and (G) be issued by title companies satisfactory to the Collateral Agent (including any such title companies acting as co-insurers or reinsurers, at the option of the Collateral Agent). Also, the Collateral Agent shall receive (i) evidence satisfactory to it that all premiums in respect of each such policy, all charges for mortgage recording tax, and all related expenses, if any, have been paid and (ii) a copy of all recorded documents referred to, or listed as exceptions to title in, the title policy or policies referred to above and a copy of all other material documents affecting the mortgaged properties.
(g) If requested by the Collateral Agent pursuant to Section 5.10(e), the Collateral Agent shall receive, and the title insurance company issuing the policy referred to in Section 5.10(e) (the “Title Insurance Company”) shall have received, maps or plats of an as-built survey of the sites of the Mortgaged Properties certified to the Collateral Agent and the Title Insurance Company in a manner satisfactory to them, dated not more than 30 days prior to the acquisition of an interest in such property unless the Title Insurance Company has agreed to delete its survey disclosure exception on the basis of an earlier survey and such survey is, in any event, dated not more than 2 years prior to such date by an independent professional licensed land surveyor satisfactory to the Collateral Agent and the Title Insurance Company, which maps or plats and the surveys on which they are based shall be made in accordance with the Minimum Standard Detail Requirements for Land Title Surveys jointly established and adopted by the American Land Title Association and the American Congress on Surveying and Mapping in 1997 or 1999 and meeting the accuracy requirements as defined therein, and, without limiting the generality of the foregoing, there shall be surveyed and shown on such maps, plats or surveys the following: each survey shall (A) be a current “as-built” survey showing the location of any adjoining streets (including their widths and any pavement or other improvements), easements (including the recorded information with respect to all recorded instruments), the mean high water base line or other legal boundary lines of any adjoining bodies of water, fences, zoning or
restriction setback lines, rights-of-way, utility lines to the points of connection and any encroachments; (B) locate all means of ingress and egress, certifying the amount of acreage and square footage, indicate the address of the property, contain the legal description of the property, and also contain a location sketch of the property; (C) show the location of all improvements as constructed on the property, all of which shall be within the boundary lines of the property and conform to all applicable zoning ordinances, set-back lines and restrictions and the surveyor shall certify compliance with the foregoing; (D) indicate the location of any improvements on the property with the dimensions in relations to the lot and building lines; (E) show measured distances from the improvements to be set back and specified distances from street or property lines in the event that deed restrictions, recorded plats or zoning ordinances require same; (F) designate all courses and distances referred to in the legal description, and indicate the names of all adjoining owners on all sides of the property, to the extent available; and (G) indicate the flood zone designation, if any, in which the property is located. The legal description of the applicable property shall be shown on the face of each survey, and the same shall conform to the legal description contained in the title policy described below.
(h) If requested by the Collateral Agent pursuant to Section 5.10(e), the Collateral Agent shall receive, (A) a policy of flood insurance that (1) covers any parcel of improved real property that is encumbered by any Mortgage (2) is written in an amount not less than the outstanding principal amount of the indebtedness secured by such Mortgage that is reasonably allocable to such real property or the maximum limit of coverage made available with respect to the particular type of property under the National Flood Insurance Act of 1968, whichever is less, and (3) has a term ending not later than the maturity of the indebtedness secured by such Mortgage or that may be extended to such maturity date and (B) confirmation that the Company has received the notice required pursuant to Section 208(e)(3) of Regulation H of the Board.
Section 5.11 Security Interests
Section 5.12 Post Closing Security Interest Matters
(a) No later than 30 days following the date of this Agreement, each Obligor shall deliver to each Holder and the Collateral Agent, either
(i) a fully executed Control Agreement (in the form of either (1) Exhibit E to the Guarantee and Collateral Agreement or (2) a Control Agreement
delivered to the Collateral Agent on the Closing Date, or otherwise approved by the Majority Holders) with respect to each of its Deposit Accounts (as such term is defined in the Guarantee and Collateral Agreement), or
(ii) an Officer’s Certificate certifying that such Obligor is in compliance with Section 5.2(d) of the Guarantee and Collateral Agreement.
(b) No later than 15 days following the date of this Agreement, each Obligor shall file all documents and take all reasonable steps necessary to cause all their intellectual property rights registered with each Governmental Authority (including but not limited to the United States Patent and Trademark Office and the European Union) to be registered in the name of either the Company or GameSpy, to the reasonable satisfaction of the Collateral Agent.
(c) No later than 30 days following the date of this Agreement, the Company shall, either
(i) consummate the dissolution Two Cents, Inc. pursuant to the applicable laws of the State of New Jersey, or
(ii) cause Two Cents, Inc. to deliver (1) a duly executed counterpart signature page to the Guarantee and Collateral Agreement and the Intellectual Property Security Agreement attached as an exhibit to the Guarantee and Collateral Agreement, (2) a Secretary’s Certificate in substantially the form of the Secretary’s Certificate delivered pursuant to Section 2.4, and (3) an opinion of counsel covering the matters set forth in the opinions delivered pursuant to Section 2.5.
Section 6.1 Incurrence of Indebtedness and Issuance of Preferred Stock
(a) The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create, incur, issue, assume, Guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur”) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Subsidiaries to issue any shares of preferred stock.
(b) The provisions of Section 6.1(a) hereof will not prohibit the incurrence of, or prohibit the Company and its Subsidiaries from remaining liable with respect to, any of the following items of Indebtedness (collectively, “Permitted Debt”):
(i) Existing Debt, excluding the Notes and the Senior Subordinated Notes;
(ii) the incurrence by the Company of Indebtedness represented by the Notes to be issued on the date of this Agreement;
(iii) the incurrence by the Company of Indebtedness represented by the Senior Subordinated Notes issued on the date of this Agreement pursuant to the Securities Purchase Agreement;
(iv) the incurrence by the Company of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness that is described in Section 6.1(b)(ii) and Section 6.1(b)(iv);
(v) the incurrence by the Company or any of its Subsidiaries of intercompany Indebtedness owed to the Company or any of its Wholly Owned Subsidiaries; provided, however, that:
(A) if the Company or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be unsecured and expressly subordinated to the prior payment in full in cash of all Obligations with respect to the Notes, in the case of the Company, or the Note Guarantee, in the case of a Guarantor;
(B) in each case where the Company or any Guarantor is the creditor, such Indebtedness is evidenced by a demand promissory note pledged to the Collateral Agent for the ratable benefit of the Holders pursuant to the Security Agreement;
(C) the following will be deemed, in each case, to constitute an incurrence of Indebtedness by the Company or one of its Subsidiaries, as the case may be, that was not permitted by this Section 6.1(b)(iv);
(1) any subsequent issuance or transfer of Equity Interests that result in any Indebtedness originally incurred pursuant to this Section 6.1(b)(iv) being held by a Person other than the Company or a Subsidiary thereof, and
(2) any sale or other transfer of any Indebtedness originally incurred pursuant to this Section 6.1(b)(iv) to a Person that is not either the Company or a Wholly Owned Subsidiary thereof,
(vi) the issuance by any of the Company’s Subsidiaries to the Company or to any of its Wholly Owned Subsidiaries of shares of preferred stock; provided, however, that the following will be deemed, in each case, to constitute an issuance of preferred stock by such Subsidiary that was not permitted by this Section 6.1(b)(vi):
(A) any subsequent issuance or transfer of Equity Interests that results in any preferred stock originally issued pursuant to this Section 6.1(b)(vi) being held by a Person other than the Company or a Wholly Owned Subsidiary of the Company; and
(B) any sale or transfer of any preferred stock originally issued pursuant to this Section 6.1(b)(vi) to a Person that is not either the Company or a Wholly-Owned Subsidiary of the Company;
(vii) the incurrence by the Company or any of its Subsidiaries of Hedging Obligations in the ordinary course of business;
(viii) the Guarantee by the Company or any of its Subsidiaries of Indebtedness of the Company or a Subsidiary of the Company that was permitted to be incurred by another provision of this Section 6.1; provided that if the Indebtedness being guaranteed is subordinated to or pari passu with the Notes, then the Guarantee shall be subordinated or pari passu, as applicable, to the same extent as the Indebtedness guaranteed;
(ix) the incurrence by the Company or any of its Subsidiaries of Indebtedness in respect of workers’ compensation claims, self-insurance obligations, bankers’ acceptances, performance and surety bonds in the ordinary course of business;
(x) the incurrence by the Company of any Indebtedness represented by the Series A Preferred Stock and Series B Preferred Stock outstanding or issued on the Closing Date; and
(xi) the incurrence by the Company or any of its Subsidiaries of Indebtedness arising from the honoring by a bank or other financial institution of a check, draft or similar instrument inadvertently drawn against insufficient funds, so long as such Indebtedness is covered within five Business Days.
Section 6.2 No Layering.
Section 6.3 Restrictions on Liens
Section 6.4 Limitation on Restricted Payments
(i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Subsidiaries’ Equity Interests (including any payment in connection with any merger or consolidation involving the Company or any of its Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company or to the Company or a Subsidiary of the Company);
(ii) purchase, redeem or otherwise acquire or retire for value (including in connection with any merger or consolidation involving the Company or any of its Subsidiaries) any Equity Interests of the Company or any direct or indirect parent of the Company;
(iii) make any payment (whether or not in cash) on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is pari passu with or subordinated to the Notes or any of the Note Guarantees (collectively “Junior Debt”); or
(iv) make any Restricted Investment,
(i) so long as (A) no bankruptcy, insolvency or liquidation proceeding is pending and (B) no Default in the payment of an amount due under the Note Documents has occurred and is continuing or would be caused thereby, the payment of regularly scheduled interest payments on the Senior Subordinated Notes pursuant to their terms on the date hereof;
(ii) so long as no Default has occurred and is continuing or would be caused thereby, the payment of any dividend (or, in the case of any partnership or
limited liability company, any similar distribution) by a Subsidiary of the Company to the holders of its Equity Interests on a pro rata basis;
(iii) so long as no Default has occurred and is continuing or would be caused thereby, the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Subsidiary of the Company held by any current or former officer, director or employee of the Company or any of its Subsidiaries pursuant to any equity subscription agreement, stock option agreement, shareholders’ agreement or similar agreement; provided, that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $750,000; provided further that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $250,000 in any twelve-month period;
(iv) so long as no Default has occurred and is continuing or would be caused thereby, and so long as the Holders have waived in writing, pursuant to Section 12.4, any Default or Event of Default that would result from such Change of Control or Initial Public Offering (such waiver to be in the Holders’ sole and absolute discretion), the redemption of the Senior Subordinated Notes upon a Change of Control or Initial Public Offering pursuant to the terms of the Senior Subordinated Notes as in effect on the date hereof; and
(v) so long as no Default has occurred and is continuing or would be caused thereby, the repurchase of Equity Interests deemed to occur upon the exercise of stock options to the extent such Equity Interests represent a portion of the exercise price of those stock options.
Section 6.5 No Amendment to Senior Subordinated Notes or Preferred Stock.
(i) alter the terms of any of the Company’s Equity Securities, if, pursuant to the terms of the Company’s Equity Securities, as altered, the Company or any of its Subsidiaries could be required to take an action, whether upon the occurrence of an event, delivery of notice, on any date, or otherwise,
that would, directly or indirectly, result in a Default or Event of Default or entitle the holder or holders of any Indebtedness of the Company or any of its Subsidiaries (with or without the giving of notice or lapse of time) to accelerate the maturity of such Indebtedness;
(ii) increase the rate of or change the time for payment of interest on any Senior Subordinated Notes or any Permitted Refinancing Indebtedness;
(iii) increase the principal of, advance the final maturity date of or shorten the Weighted Average Life to Maturity of the Senior Subordinated Notes or any Permitted Refinancing Indebtedness;
(iv) tighten the redemption provisions or increase the price or terms at which the Company is required to offer to purchase any Senior Subordinated Notes or any Permitted Refinancing Indebtedness;
(v) amend the provisions of Article XI of the Securities Purchase Agreement; or
(vi) amend, restate, or modify (a “Financing Change”) any document related to the Senior Subordinated Notes (collectively, the “Subordinated Debt Documents”) in a manner that imposes covenants or events of default upon the Company or its Subsidiaries which are more restrictive than the covenants contained in such documents prior to such Financing Change, unless the Company and the Majority Holders shall, within 10 Business Days after such Financing Change, execute and deliver an amendment to this Agreement or any other applicable Note Document for the purpose of effecting a change similar and in proportion to the changes to the Subordinated Debt Documents; provided, that upon any failure of the Company or the Majority Holders to do so, this Agreement shall be deemed automatically amended to effect such similar and proportionate amendment.
Section 6.6 Asset Sales; Casualty Proceeds
(a) The Company will not, and will not permit any of its Subsidiaries to, consummate any other Asset Sale unless:
(i) the Company (or the Subsidiary, as the case may be) receives consideration at the time of such Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of;
(ii) the fair market value is determined by the Company’s board of directors and evidenced by a resolution of the board of directors set forth in an Officers’ Certificate delivered to the Holders; and
(iii) at least 80% of the consideration therefor received by the Company or such Subsidiary is in the form of cash. For purposes of this provision, any securities, notes or other obligations received by the Company or any such Subsidiary from such transferee that are substantially contemporaneously (subject to ordinary settlement periods) converted by the Company or such Subsidiary into cash (to the extent of the cash received in that conversion) shall be deemed to be cash.
(b) Within 120 days after the receipt of any Net Asset Sale Proceeds from an Asset Sale or any Casualty Proceeds, the Company may apply such Net Asset Sale Proceeds or Casualty Proceeds at its option:
(i) to acquire all or substantially all of the assets of, or a majority of the voting stock of, another Permitted Business, if such assets or voting stock constitute Collateral;
(ii) to make a capital expenditure;
(iii) to reinvest in equipment or other productive assets of the general type that are used or useful in a Permitted Business, if such equipment or assets constitute Collateral;
(iv) to repay Indebtedness ranking pari passu with the Notes that is secured by a Permitted Lien having priority over the Liens securing the Notes; provided that (a) such Indebtedness was permitted pursuant to the terms of this Agreement to be incurred, (b) the aggregate amount of such repayment does not exceed the fair market value of the Property subject to the Permitted Lien, as determined in good faith by the Company’s Board of Directors, and (c) no Default or Event of Default has occurred and is continuing; or
(v) in the case of Casualty Proceeds, to restore or replace damaged or destroyed assets.
Section 6.7 Limitation on Sale and Leaseback Transactions
Section 6.8 Limitation on Issuances and Sales of Capital Stock of Wholly Owned Subsidiaries
(i) such transfer, conveyance, sale, lease or other disposition is of all the Equity Interests in such Wholly Owned Subsidiary; and
(ii) the Net Proceeds from such transfer, conveyance, sale, lease or other disposition are applied in accordance with Section 6.6.
Section 6.9 Business Activities
Section 6.10 Stay, Extension and Usury Laws
Section 6.11 Investment Company Act; United States Real Property Holding Corporation
Section 6.12 No Merger, etc.
(a) either:
(i) the Company is the surviving corporation; or
(ii) the Person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia;
(b) the Person formed by or surviving any such consolidation or merger (if other than the Company) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of the Company under the Notes, this Agreement and the other Note Documents pursuant to agreements reasonably satisfactory to the Holders;
(c) immediately after such transaction, no Default or Event of Default exists; and
(d) the Leverage Ratio of (i) the Company, (ii) the Person formed by or surviving any such consolidation or merger (if other than the Company), or (iii) to which such sale, assignment, transfer, conveyance or other disposition has been made, as applicable, for its most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such transaction is consummated would have been no more than 80% of the Required Leverage Ratio for such period, determined on a pro forma basis (in accordance with the accounting requirements of Rule 11-02 of Regulation S-X), as if such transaction (including any related incurrence of Indebtedness) had occurred at the beginning of such four-quarter period.
(i) a merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction; and
(ii) any sale, transfer, assignment, conveyance, lease or other disposition of assets between or among the Company and its Subsidiaries.
Section 6.13 Limitation on Transactions With Affiliates
(a) The Company will not, and will not permit any of its Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each an “Affiliate Transaction”), unless:
(i) such Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Subsidiary with an unrelated Person; and
(ii) the Company delivers to the Holders:
(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $500,000, a resolution of the Board of Directors set forth in an Officers’ Certificate certifying that such Affiliate Transaction complies with clause (i) of this Section 6.13(a) and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and
(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $1.0 million, an opinion as to the fairness to the Company or such Subsidiary of such Affiliate Transaction from a financial
point of view issued by an accounting, appraisal or investment banking firm of national standing.
(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 6.13(a):
(i) any employment agreement, employee benefit plan, officer and director indemnification agreement or any similar arrangement entered into by the Company or any of its Subsidiaries in the ordinary course of business;
(ii) transactions between or among the Company and/or its Subsidiaries;
(iii) transactions with a Person that is an Affiliate of the Company solely because the Company owns, directly or through a Subsidiary, an Equity Interest in such Person;
(iv) payment of reasonable directors’ fees to Persons who are not otherwise Affiliates of the Company;
(v) any issuance of Equity Interests (other than Disqualified Stock) of the Company to Affiliates of the Company;
(vi) the payment to Great Hill on the Closing Date of the consulting fee set forth on Schedule 2.7, which shall be no more than $1,225,000; and
(vii) Restricted Payments (other than Permitted Investments) that do not violate Section 6.4.
Section 6.14 Limitation on Dividends and Other Payment Restrictions Affecting Subsidiaries
(a) The Company will not, and will not permit any of its Subsidiaries to, directly or indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Subsidiary to:
(i) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Subsidiaries or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to the Company or any of its Subsidiaries;
(ii) make loans or advances to the Company or any of its Subsidiaries; or
(iii) transfer any of its properties or assets to the Company or any of its Subsidiaries.
(b) The restrictions in Section 6.14(a) will not apply to encumbrances or restrictions existing under or by reason of:
(i) Existing Indebtedness as in effect on the date of this Agreement and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings thereof, provided that such amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in such Existing Indebtedness, as in effect on the date of this Agreement;
(ii) this Agreement, the Notes and the Note Guarantees;
(iii) applicable law, rule, regulation or order;
(iv) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;
(v) any agreement for the sale or other disposition of a Subsidiary that restricts distributions by that Subsidiary pending the sale or other disposition;
(vi) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;
(vii) Liens permitted to be incurred under the provisions of Section 6.3 that limit the right of the debtor to dispose of the assets subject to such Liens;
(viii) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements and other similar agreements entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements; and
(ix) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business.
Section 6.15 Payments for Consent
Section 6.16 Employee Plans
(i) terminate any Employee Pension Plan subject to Title IV of ERISA;
(ii) make a complete or partial withdrawal (within the meaning of Section 4201 of ERISA) from any Multiemployer Plan;
(iii) (A) adopt, establish, maintain or enter into any obligation to contribute to any new Plan or Multiemployer Plan, (B) modify any existing Plan so as to increase its obligations thereunder, or (C) increase a contribution obligation to any Multiemployer Plan;
(iv) engage in any “prohibited transaction” (as defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor;
(v) incur any “accumulated funding deficiency” (as defined in Section 302 of ERISA), whether or not waived, with respect to any Plan; or
(vi) incur a Reportable Event with respect to, or commence a proceeding to have a trustee appointed, or have a trustee appointed, to administer or to terminate, any Single Employer Plan.
Section 6.17 ERISA Notices
(i) gives or is required to give notice to the PBGC of any Reportable Event with respect to any Employee Pension Plan which might constitute grounds for a termination of such plan under Title IV of ERISA or the imposition of a tax under Section 4971 of the Code, or knows that the plan administrator of any such plan has given or is required to give notice of any such Reportable Event, a copy of the notice of such Reportable Event given or required to be given to the PBGC;
(ii) receives written notice of complete or partial Withdrawal Liability under Title IV of ERISA or written notice that any Multiemployer Plan is in Reorganization or has been terminated, a copy of such notice;
(iii) receives notice from the PBGC under Title IV of ERISA of an intent to terminate or appoint a trustee to administer any Employee Pension Plan, a copy of such notice;
(iv) applies for a waiver of the minimum funding standard under Section 412 of the Code, a copy of such application;
(v) gives notice of intent to terminate any Employee Pension Plan under Title IV of ERISA, a copy of such notice and, if reasonably requested by any of the Holders and permitted under applicable law, related financial information; or
(vi) fails to make any payment or contribution to any Employee Pension Plan (or Multiemployer Plan or in respect of any benefit arrangement) or makes any amendment to any Plan or benefit arrangement, in either case, which would reasonably be expected to result in the imposition of a Lien or the posting of a bond or other security, a certificate of the Chief Financial Officer or Controller of the Company setting forth details as to such occurrence and action, if any, which the Company is required or proposes to take.
Section 7.1 Minimum Consolidated EBITDA.
Section 7.2 Minimum EBITDA to Consolidated Interest Expense
Section 7.3 Limitation on Capital Expenditures.
Section 7.4 Leverage Ratio.
Section 8.1 Event of Default
(i) The Company defaults for two days in the payment when due of interest on the Notes;
(ii) The Company defaults in the payment when due (at maturity, upon redemption or otherwise) of the principal of, or premium, if any, on the Notes;
(iii) Any representation, warranty or statement made or deemed made by the Company or its respective Subsidiaries herein or in any other Note Document or in any statement or certificate delivered or required to be delivered pursuant hereto or thereto shall prove to be untrue in any material respect on the date as of which made or deemed made;
(iv) The Company or any of its Subsidiaries shall,
(A) default in the due performance or observance by it of any term, covenant or agreement contained in Section 5.9, Section 5.10, Section 5.11, Article VI or Article VII, or
(B) default in the due performance or observance by it of any other term, covenant or agreement contained in this Agreement or any Note Document (other than those referred to in Section 8.1(i),
8.1(ii) or 8.1(iii)(A)) and such default shall continue unremedied for a period of at least thirty days after the date of such default;
(v) A default occurs under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by the Company or any of its Subsidiaries (or the payment of which is Guaranteed by the Company or any of its Subsidiaries), whether such Indebtedness or Guarantee now exists, or is created after the date of this Agreement, if that default:
(A) is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default, which default has not been waived by the holders of such Indebtedness (a “Payment Default”);
(B) results in the acceleration of such Indebtedness prior to its express maturity, or
(C) entitles the holder or holders thereof (with or without the giving of notice or lapse of time) to accelerate the maturity of such Indebtedness,
(vi) Any Indebtedness described in Section 8.1(v) shall be declared to be due and payable, or required to be prepaid other than by a regularly scheduled required prepayment, prior to the stated maturity thereof;
(vii) A final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any of its Subsidiaries, which judgment or judgments are not paid, discharged or stayed for a period of 60 days; provided that the aggregate of all such undischarged judgments (exclusive of any applicable insurance coverage) exceeds $750,000;
(viii) The Company or any of its Significant Subsidiaries:
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an involuntary case;
(C) consents to the appointment of a custodian of it or for all or substantially all of its property;
(D) makes a general assignment for the benefit of its creditors; or
(E) generally is not paying its debts as they become due;
(ix) a court of competent jurisdiction enters an order or decree under any bankruptcy law that:
(A) is for relief against the Company or any of its Significant Subsidiaries;
(B) appoints a custodian of the Company or any of its Significant Subsidiaries or for all or substantially all of the property of the Company or any of its Subsidiaries; or
(C) orders the liquidation of the Company or any of its Significant Subsidiaries;
(x) The Company repudiates any of its material obligations under this Agreement or the Notes or this Agreement or the Notes are held to be unenforceable against the Company in any material respect for any reason;
(xi) Any Note Guarantee is held in any judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its Obligations under its Note Guarantee;
(xii) Any Security Document shall cease to be in full force and effect, or shall cease to give the Collateral Agent for the ratable benefit of the Secured Parties the Liens, rights, powers and privileges created thereby (including a perfected security interest in, and Lien on, all of the Collateral), in favor of the Holders, superior to and prior to the rights of all third Persons other than the holders of Permitted Liens and subject to no Liens other than Permitted Liens;
(xiii) A Change of Control or an Initial Public Offering shall occur; or
(xiv) The Company or any Commonly Controlled Entity shall incur any liability in connection with the Insolvency or Reorganization of a Multiemployer Plan.
Section 8.2 Acceleration
Section 8.3 Other Remedies
Section 8.4 Waiver of Past Defaults
Section 8.5 Rights of Holders of Notes to Receive Payment
Section 9.1 Appointment
Section 9.2 Delegation of Duties
Section 9.3 Exculpatory Provisions
Section 9.4 Reliance by Collateral Agent
Section 9.5 Notice of Default
Section 9.6 Non-Reliance on the Collateral Agent and Holders
Section 9.7 Indemnification
Section 9.8 Collateral Agent in its Individual Capacity
Section 9.9 Successor Collateral Agent
Section 9.10 Authorization to Release Liens and Guarantees
Section 9.11 Withholding Tax
(a) To the extent required by any applicable law, the Collateral Agent may withhold from any interest payment to any Holder an amount equivalent to any applicable withholding tax. If the forms or other documentation required by Section 1.11 are not delivered to the Collateral Agent, then the Collateral Agent may withhold from any interest payment to any Holder not providing such forms or other documentation, a maximum amount of the applicable withholding tax.
(b) If the Internal Revenue Service or any authority of the United States or other jurisdiction asserts a claim that the Collateral Agent did not properly withhold tax from amounts paid to or for the account of any Holder (because the appropriate form was not delivered, was not properly executed, or because such Holder failed to notify the Collateral Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding tax ineffective, or for any other reason), such Holder shall indemnify the Collateral Agent fully for all amounts
paid, directly or indirectly, by the Collateral Agent as tax or otherwise, including penalties and interest, together with all expenses incurred, including legal expenses, allocated staff costs and any out of pocket expenses.
Section 10.1 Optional Redemption
(a) At any time on or after to March 15, 2005, the Company may redeem all of the Notes, or any portion of the Notes, upon not less than 10 Business Days nor more than 60 days’ notice, at a redemption price equal to 100% of the principal amount of Notes redeemed, plus accrued and unpaid interest and premium, if any, to the date of redemption, plus the applicable prepayment premium shown below (expressed as a percentage of principal being redeemed and referred to herein as the “Prepayment Premium”):
(b) At any time prior to March 15, 2005, the Company may redeem all or a part of the Notes, upon not less than 10 Business Days nor more than 60 days’ prior notice, at a redemption price equal to 100% of the principal amount of Notes redeemed plus accrued and unpaid interest and premium, if any, to the date of redemption, plus the applicable Make Whole Premium as of the redemption date.
(c) Any redemption pursuant to this Section 10.1 shall be made pursuant to the provisions of Sections 10.3 through 10.7 hereof.
Section 10.2 Excess Proceeds Offers and Mandatory Repurchase Offers
(i) the Section of this Agreement pursuant to which the Repurchase Offer is being made and the length of time the Repurchase Offer will remain open;
(ii) the Offer Amount, the purchase price and the Purchase Date;
(iii) that any Note not tendered or accepted for payment will continue to accrue interest;
(iv) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Repurchase Offer will cease to accrue interest after the Purchase Date;
(v) that Holders electing to have a Note purchased pursuant to any Repurchase Offer will be required to deliver the form entitled “Option of Holder to Elect Purchase” on the reverse of the Note to the Company at the address specified in the notice at least three days before the Purchase Date;
(vi) that Holders will be entitled to withdraw their election if the Company receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing his election to have such Note purchased;
(vii) that, if the aggregate principal amount of Notes surrendered by Holders exceeds the Offer Amount, the Company will select the Notes to be purchased on a pro rata basis based on the principal amount of Notes surrendered; and
(viii) that any Holder whose Notes were purchased only in part will, upon the request of such Holder, be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered.
Section 10.3 Selection of Notes to Be Redeemed or Purchased
Section 10.4 Notice of Redemption
(i) the redemption date;
(ii) the redemption price;
(iii) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the redemption date upon surrender of such Note, a new Note or Notes in principal amount equal to the unredeemed portion will be issued upon cancellation of the original Note;
(iv) that Notes redeemed in full must be surrendered to the Company to collect the redemption price;
(v) that, unless the Company defaults in making such redemption payment, interest on Notes called for redemption ceases to accrue on and after the redemption date; and
(vi) the Section of this Agreement pursuant to which the Notes called for redemption are being redeemed.
Section 10.5 Effect of Notice of Redemption
Section 10.6 Deposit of Redemption or Purchase Price
Section 10.7 Notes Redeemed or Purchased in Part
(i) the rate for three-month deposits in United States dollars, that appears on the Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the applicable LIBOR Determination Date; or
(ii) if no rate appears on the particular LIBOR Determination Date on the Moneyline Telerate Page 3750, the rate calculated by the Lead Investor as the arithmetic mean of at least two offered quotations obtained after requesting the principal London offices of each of four major reference banks in the London interbank market to provide the Lead Investor with its offered quotation for deposits in United States dollars for the period of three months to prime banks in the London interbank market at approximately 11:00 A.M., London time, on that LIBOR Determination
Date and in a principal amount that is representative for a single transaction in United States dollars in that market at that time; or
(iii) if fewer than two offered quotations referred to in clause (ii) are provided as requested, the rate calculated by the Lead Investor as the arithmetic mean of the rates quoted at approximately 11:00 A.M., New York time, on the particular LIBOR Determination Date by three major banks in The City of New York selected by the Lead Investor for loans in United States dollars to leading European banks for a period of three months and in a principal amount that is representative for a single transaction in United States dollars in that market at that time; or
(iv) if the banks so selected by the Lead Investor are not quoting as mentioned in clause (iii) above, 3-Month LIBOR in effect on the preceding LIBOR Determination Date.
(i) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and
(ii) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
(i) the sale, lease, conveyance or other disposition of any assets or rights; provided that the sale, lease, conveyance or other disposition of all or substantially all of the assets of the Company and its Subsidiaries taken as a whole will be governed by the provisions of Section 6.12 and not by the provisions of Section 6.6,
(ii) the issuance of Equity Interests in any of the Company’s Subsidiaries or the sale of Equity Interests in any of its Subsidiaries.
(i) any single transaction or series of related transactions that involves assets having a fair market value of less than $100,000;
(ii) a transfer of assets between or among the Company and its Wholly Owned Subsidiaries;
(iii) the sale or lease of products, services or accounts receivable in the ordinary course of business and any sale or other disposition of damaged, worn-out or obsolete assets in the ordinary course of business;
(iv) an issuance of Equity Interests by a Subsidiary to the Company or to another Wholly Owned Subsidiary;
(v) a Restricted Payment that does not violate Section 6.4 or a Permitted Investment; and
(vi) the sale or other disposition of Cash Equivalents.
(i) marketable direct obligations issued or unconditionally Guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States, in each case maturing within one year from the date of acquisition thereof;
(ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within six months from the date of acquisition thereof and, at the time of acquisition, having the highest ratings obtainable from Standard & Poor’s Corporation, Moody’s Investors Service, Inc. or another nationally recognized rating agency;
(iii) commercial paper maturing no more than one year from the date of issuance thereof and, at the time of issuance, having at least A-1 ratings from Standard & Poor’s Corporation, and P-1 ratings for Moody’s Investors Service, Inc. or equivalent ratings from another nationally recognized rating agency;
(iv) certificates of deposit or bankers’ acceptances maturing within one year from the date of acquisition thereof issued by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia having combined capital and surplus of not less than $100.0 million and having a rating of at least Aa from Moody’s Investors Service, Inc. or a rating of at least AA from Standard and Poor’s Corporation; and
(v) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition.
(i) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole to any “person” (as that term is used in Section 13(d) of the Exchange Act);
(ii) the adoption of a plan relating to the liquidation or dissolution of the Company;
(iii) the consummation of the first transaction (including any merger or consolidation) the result of which is that any “person” (as defined above), other than a Great Hill or any of its Affiliates, becomes the Beneficial Owner, directly or indirectly, of more of the Voting Stock of the Company (measured by voting power rather than number of shares) than is at the time Beneficially Owned by Great Hill and its Affiliates; or
(iv) the Company consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction in which any of the outstanding Voting Stock of the Company or such other Person is converted into or
exchanged for cash, securities or other property, other than any such transaction where the Voting Stock of the Company outstanding immediately prior to such transaction is converted into or exchanged for Voting Stock (other than Disqualified Stock) of the surviving or transferee Person constituting a majority of the outstanding shares of such Voting Stock of such surviving or transferee Person (immediately after giving effect to such issuance);
(v) after an initial public offering of the Company or any direct or indirect parent of the Company, the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors; or
(vi) Great Hill, Affiliates of Great Hill, Liberty Mutual Insurance Company and BACI collectively shall cease to own and control a majority of the Voting Stock of the Company (measured by voting power rather than number of shares); provided, that in no event shall Liberty Mutual Insurance Company or any of its Affiliates be deemed to be an Affiliate of Great Hill for purposes of this definition.
(i) expenditures made in connection with the replacement, substitution or restoration of assets (including any expenditures made pursuant to Section 6.6(b)),
(A) to the extent financed from Casualty Proceeds received on account of the loss, destruction or condemnation of the assets being replaced or restored; and
(B) to the extent such expenditure is attributable to a credit granted by the seller of property, plant or equipment purchased with the trade-in of existing property, plant or equipment;
(ii) the purchase price paid in connection with the acquisition of any other Person (including through the purchase of all of the Capital Stock of such Person or through merger or consolidation) to the extent allocable to property, plant and equipment of such Person or its Subsidiaries.
(i) the Consolidated Interest Expense of such Person and its Subsidiaries for such period, to the extent that such Consolidated Interest Expense was deducted in computing such Consolidated Net Income; plus
(ii) provision for taxes based on income or profits of such Person and its Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; plus
(iii) depreciation, amortization (including amortization of intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; minus
(iv) non-cash items increasing such Consolidated Net Income for such period, other than the accrual of revenue in the ordinary course of business,
(i) the consolidated interest expense of such Person and its Subsidiaries for such period, whether paid or accrued, including amortization of debt issuance costs, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers’ acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations in respect of interest rates (but excluding amortization of original issue discount); plus
(ii) the consolidated interest expense of such Person and its Subsidiaries that was capitalized during such period; plus
(iii) any interest paid during such period on Indebtedness of another Person that is guaranteed by such Person or one of its Subsidiaries or secured by a Lien on assets of such Person or one of its Subsidiaries, whether or not such Guarantee or Lien is called upon; plus
(iv) the product of (a) all dividends paid and whether or not in cash, on any series of preferred stock of such Person or any of its Subsidiaries, other than dividends on Equity Interests payable solely in Equity Interests of the Company (other than Disqualified Stock) or to the Company or a Subsidiary of the Company, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined federal, state and local statutory tax rate of such Person, expressed as a decimal, in each case, determined on a consolidated basis in accordance with GAAP.
(i) the Net Income (but not loss) of any Person that is not a Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or similar distributions paid in cash to the specified Person or a Wholly-Owned Subsidiary of the Person; and
(ii) the Net Income of any Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or,
directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Subsidiary or its stockholders.
(i) was a member of such Board of Directors on the date of this Agreement; or
(ii) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination or election.
(i) the guarantors listed on the signature pages hereto; and
(ii) any other Subsidiary of the Company that executes a Note Guarantee or grants a Lien in favor of the Collateral Agent in accordance with the provisions of this Agreement,
(i) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; and
(ii) other agreements or arrangements designed to protect such Person against fluctuations in interest rates.
(i) in respect of borrowed money;
(ii) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(iii) in respect of banker’s acceptances;
(iv) representing Capital Lease Obligations;
(v) representing the balance deferred and unpaid of the purchase price of any property or services due more than six months after such property is acquired or such services are completed, except (i) any such balance that constitutes an accrued expense or trade payable not overdue by more than 90 days incurred in the ordinary course of such Person’s business, (ii) any such balance due that is being contested in good faith by appropriate proceedings promptly instituted and diligently conducted and for which adequate reserves or other appropriate provisions have been made in accordance with GAAP, and (iii) any such obligation incurred under ERISA; or
(vi) representing any Hedging Obligations;
(i) 1.0% of the principal amount of the Note; or
(ii) the excess of (a) the present value at such redemption date of (i) the redemption price of the Notes on March 15, 2005 (as set forth in Section 10.1(a)), plus (ii) all required interest payments due on the principal amount of Notes being redeemed through March 15, 2005 (including any accrued interest resulting from the Notes being initially
issued at less than par), assuming no change in 3-Month LIBOR rate and the Applicable Spread from the 3-Month LIBOR and the Applicable Spread on the immediately prior LIBOR Reset Date), computed using a discount rate equal to the Treasury Rate as of such redemption date plus 50 basis points; over (b) the principal amount of the Note, if greater
(i) any material adverse effect on the business results of operations, cash flows, properties, assets, liabilities or condition (financial or otherwise) of the Company and GameSpy and their respective Subsidiaries taken as a whole; or
(ii) any material adverse effect on the ability of the Company, GameSpy or any Guarantor, as applicable, to fulfill their respective obligations under the Note Documents, the GameSpy Financing Documents or the Acquisition Documents or any document contemplated hereby or thereby.
(iii) any material adverse effect on the ability of the Holders or the Collateral Agent to enforce in any material respect their rights purported to be granted hereunder or under any of the other Note Documents or the Obligations of the Company or any Guarantor under a Note Document (including realizing on the Collateral).
(i) cash (freely convertible into United States dollars) received by the Company or any of its Subsidiaries from such sale or other disposition, after:
(A) provision for all income or other taxes measured by or resulting from such sale or other disposition,
(B) payment of all brokerage commissions and other fees and expenses related to such sale or other disposition, and
(C) deduction of appropriate amounts as a reserve, in accordance with GAAP, against any liabilities associated with such assets or stock and retained by the Company or any of its Subsidiaries after such sale or other disposition thereof, including, without limitation, pension and other post-employment benefit liabilities and liabilities related to environmental matters or against any indemnification obligations associated with the sale or other disposition of such assets or stock; and
(ii) any non-cash consideration received by the Company or any of its Subsidiaries from such sale or other disposition upon the liquidation or conversion of such non-cash consideration into cash.
(i) any gain or loss, together with any related provision for taxes on such gain or loss, realized in connection with: (a) any Asset Sale; or (b) the disposition of any securities by such Person or any of its Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Subsidiaries;
(ii) any extraordinary gain or loss, together with any related provision for taxes on such extraordinary gain or loss;
(iii) the cumulative effect of a change in accounting principles.
(i) any Investment in the Company or in a Wholly Owned Domestic Subsidiary of the Company;
(ii) any Investment in Cash Equivalents;
(iii) any Investment by the Company or any of its Subsidiaries in a Person that is engaged in a Permitted Business after September 30, 2004, if as a result of such Investment:
(A) such Person becomes a Wholly Owned Domestic Subsidiary of the Company; or
(B) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, the Company or a Wholly Owned Domestic Subsidiary of the Company,
(A) the aggregate amount of such Investments does not exceed the lesser of (1) $3.5 million plus 50% of the Excess Cash Flow of the Company generated after December 31, 2004, that was not required to be applied to make a Mandatory Repurchase Offer pursuant to Section 5.9 and (2) $7.5 million;
(B) the aggregate amount of all such Investments does not exceed (1) $2.0 million in any fiscal year commencing January 1, 2005; and (2) $500,000 for the fiscal quarter ending December 31, 2004; and
(C) on a pro forma basis, giving effect to such Investment as if it were made on the first day of the four consecutive completed fiscal quarters of the Company ended immediately preceding such Investment, the Senior Leverage Ratio for the Company would be no more than,
(iv) any Investment made as a result of the receipt of non-cash consideration from an Asset Sale that was made pursuant to and in compliance with Section 6.5;
(v) any acquisition of assets that constitute Collateral solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of the Company;
(vi) any Investments received in compromise of obligations of such Persons incurred in the ordinary course of trade creditors or customers that were incurred in the ordinary course of business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer;
(vii) Hedging Obligations otherwise permitted to be incurred pursuant to this Agreement;
(viii) Investments of a Person or any of its Subsidiaries existing at the time such Person becomes a Subsidiary of the Company or at the time such Person merges or consolidates with the Company or any of its Subsidiaries, in either case in compliance with this Agreement; provided that such Investments were not made by such Person in connection with, or in anticipation or contemplation of, such Person becoming a Subsidiary of the Company or such merger or consolidation;
(ix) Investments made by the Company or any Subsidiary in connection with purchase price adjustments, contingent purchase price payments or other earn-out payments required in connection with Investments otherwise permitted under this Agreement;
(x) negotiable instruments held for deposit or collection in the ordinary course of business;
(xi) prepaid expenses and workers compensation, utility, and similar deposits in the ordinary course of business; and
(xii) intercompany loans that constitute Permitted Debt.
(i) Liens on assets owned by the Company or any of its Subsidiaries in favor of any Holder securing Obligations under the Note Documents;
(ii) pledges or deposits by such Person under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory, contractual or warranty obligations of such Person or deposits of cash or United States Government bonds to secure surety or appeal bonds to which such Person is a party, or deposits as security for contested taxes or import duties or for the payment of rent;
(iii) Liens imposed by law, such as carriers, warehousemen’s and mechanics’ Liens or Liens arising out of judgments or awards against such Person with respect to which such Person shall then be prosecuting appeal or other proceedings for review;
(iv) Liens securing the payment of taxes, assessments and governmental charges or levies which are not yet subject to penalties for non-payment or which are being contested in good faith and by appropriate proceedings;
(v) Liens in favor of issuers of surety bonds or letters of credit issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(vi) minor survey exceptions, minor encumbrances, easements or reservations of, or rights of others for, rights of way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning of other restrictions as to the use of real properties or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which were not incurred in connection with Indebtedness or other extensions of credit and which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(vii) judgment Liens not giving rise to an Event of Default;
(viii) Liens arising from filing Uniform Commercial Code financing statements regarding leases and contractual landlord’s Liens not securing Indebtedness;
(ix) Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
(x) Liens listed on Schedule 4.8.
(i) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness renewed, refunded, refinanced, replaced, defeased or discharged (plus all accrued interest on the Indebtedness and the amount of all fees and expenses, including premiums, incurred in connection therewith);
(ii) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged;
(iii) if the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged is subordinated in right of payment to the Notes, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and is subordinated in right of payment to, the Notes on terms at least as favorable to the holders of Notes as those contained in the documentation governing the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged;
(iv) such Indebtedness is incurred either by the Company or by the Subsidiary who is the obligor on the Indebtedness being renewed, refunded, refinanced, replaced, defeased or discharged; and
(v) after giving effect to the incurrence of such Indebtedness, the Company would be in compliance on a pro-forma basis with the covenants in Article VII.
(i) for periods prior to the Closing Date the financial results of the Company and GameSpy shall be measured on a combined basis; and
(ii) for purposes of calculating Consolidated Interest Expense of the Company for any four consecutive completed fiscal quarters ending on or before March 31, 2005, Consolidated Interest Expense of the Company for the period from April 1, 2004 to the date of measurement shall be annualized.
(i) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by
(ii) the then outstanding principal amount of such Indebtedness.
Section 12.1 Notices
(c) if to any Purchaser, to such Purchaser’s address as set forth on such Purchaser’s signature page hereto;
(d) if to any Holder that is not a Purchaser, to such Holder’s address as set forth in the Note Register.
Section 12.2 Survival of Agreement
Section 12.3 Successors and Assigns
Section 12.4 Amendment and Waiver
(i) amend, modify or waive any provision of this Section 12.4,
(ii) reduce any percentage specified in the definition of Majority Holders,
(iii) consent to the assignment or transfer by the Company of any of its rights and obligations under this Agreement and the other Note Documents,
(iv) release all or substantially all of the Collateral or release all or substantially all of the Guarantors from their guarantee obligations under the Guarantee and Collateral Agreement,
(v) make or propose to make any Note payable in money or property other than that stated in the Note, or make or propose to make any change in Sections 5.9, 5.10, 5.11, 6.6, 8.4, 8.5 or 12.4 (or any related defined terms), or
(vi) affects or proposes to affect the rate or time for payment of interest on any Note (including default interest) or the amount of premium or principal or the principal maturity date of any Note or the redemption or prepayment provisions,
Section 12.5 Release of Collateral and Guarantee Obligations.
(a) Notwithstanding anything to the contrary contained herein or in any other Note Document, upon request of the Company in connection with any Disposition of Property permitted by the Note Documents, the Collateral Agent shall (without notice to, or vote or consent of, any Holder) take such actions as shall be required to release its security interest in any Collateral being Disposed of in such Disposition, and to release any guarantee obligations under any Note Document of any Person being Disposed of in such Disposition, to the extent necessary to permit consummation of such Disposition in accordance with the Note Documents; provided that the Company shall have delivered to the Collateral Agent, at least ten Business Days prior to the date of the proposed release (or such shorter period agreed to by the Collateral Agent), a written request for release identifying the relevant Collateral being Disposed of in such Disposition and the terms of such Disposition in reasonable detail, including the date thereof, the price thereof and any expenses in connection therewith, together with a certification by the Company stating that such transaction is in compliance with this Agreement and the other Note Documents and that the proceeds of such Disposition will be applied in accordance with this Agreement and the other Note Documents.
(b) Notwithstanding anything to the contrary contained herein or any other Note Document, when all Obligations under this Agreement and the other Note Documents have been paid in full, upon request of the Company, the Collateral Agent shall (without notice to, or vote or consent of, any Holder) take such actions as shall be required to release its security interest in all Collateral, and to release all guarantee obligations provided for in any Note Document. Any such release of guarantee obligations shall be deemed subject to the provision that such guarantee obligations shall be reinstated if after such release any portion of any payment in respect of the Obligations guaranteed thereby shall be rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Company or any Guarantor, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for, the Company or any Guarantor or any substantial part of its property, or otherwise, all as though such payment had not been made.
Section 12.6 Independence of Covenants
Section 12.7 No Fiduciary Relationship
Section 12.8 No Duty
Section 12.9 Counterparts
Section 12.10 Calculations; Computations
Section 12.11 Interpretation
Section 12.12 GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
Section 12.13 Entire Agreement
Section 12.14 Severability
SECTION 1. AMENDMENTS TO THE NOTE PURCHASE AGREEMENT
1.1. Section 6.1(b)(xii) is hereby amended and restated in its entirety as follows:
1.2. The first paragraph of Section 6.5 is hereby amended and restated in its entirety as follows:
1.3. Section 6.5(vii) is hereby amended and restated in its entirety as follows:
1.4. Sections 8.1(xv) and 8.1(xvi) are hereby amended and restated in their entirety as follows:
1.5. Clause (xiii) of the definition of “Permitted Investments” is hereby amended and restated in its entirety as follows
1.6. Article XI is further amended by inserting the following defined terms in appropriate alphabetical order in such Article:
SECTION 2. CONDITIONS PRECEDENT
(a) counterparts hereof duly executed by the Company, the Guarantors, the Collateral Agent and the Majority Holders;
(b) evidence reasonable satisfactory to the Majority Holders that (i) financing statements have previously been duly filed under the Uniform Commercial Code of all jurisdictions as may be necessary or, in the opinion of the Collateral Agent or the Majority Holders, desirable or appropriate to perfect the security interests and liens created by each Security Document and (ii) that all other actions necessary or, in the reasonable opinion of the Collateral Agent or the Majority Holders, desirable or appropriate to ensure the validity, perfection and priority of the security interests and liens, created by, or intended to be created by, and to reflect the fact that the Collateral Agent is the secured party, mortgagee, beneficiary or grantee, under each Security Document has been taken;
(c) an amendment to the Securities Purchase Agreement in the form of Exhibit A hereto, duly executed by the holders of the requisite principal amount of Senior Subordinated Notes and the holders of the requisite number of shares of Series B Preferred Stock;
(d) the 3D Gamers Asset Purchase Agreement and each document delivered pursuant thereto, duly executed by each party thereto; and
(e) all costs, fees and expenses payable to the Collateral Agent and the Majority Holders by the Company pursuant to Section 1.6 of the Note Purchase Agreement, including
without limitation the reasonable fees and disbursements of Latham & Watkins LLP.
SECTION 3. COUNTERPARTS
SECTION 4. RATIFICATION OF AGREEMENT
4.1. To induce the Majority Holders to enter into this Amendment, the Company and the Guarantors jointly and severally represent and warrant that after giving effect to this Amendment no violation of the terms of the Note Purchase Agreement or any Security Document exist and all representations and warranties contained in the Note Purchase Agreement and each Security Document are true, correct and complete in all material respects on and as of the date hereof except to the extent such representations and warranties specifically relate to an earlier date in which case they were true, correct and complete in all material respects on and as of such earlier date.
4.2. Except as expressly set forth in this Amendment and as amended on July 9, 2004, the terms, provisions and conditions of the Note Purchase Agreement, each Security Document and the other Note Documents are unchanged, and said agreements, as amended, shall remain in full force and effect and are hereby confirmed and ratified.
SECTION 5. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
SECTION 6. ACKNOWLEDGMENT AND CONSENT BY THE GUARANTORS
SECTION 7. DIRECTION TO COLLATERAL AGENT
SECTION 1. WAIVER AND CONSENT
SECTION 2. AMENDMENTS TO THE NOTE PURCHASE AGREEMENT
2.1. Section 5.2(a)(iii) of the Note Purchase Agreement is amended and restated in its entirety as follows:
SECTION 3. CONDITIONS PRECEDENT
(a) counterparts hereof duly executed by the Company, the Guarantors, the Collateral Agent and the Majority Holders;
(b) an amendment to the Securities Purchase Agreement in the form of Exhibit A hereto, duly executed by the holders of the requisite principal amount of Senior Subordinated Notes and the holders of the requisite number of shares of Series B Preferred Stock; and
(c) all costs, fees and expenses payable to the Collateral Agent and the Majority Holders by the Company pursuant to Section 1.6 of the Note Purchase Agreement, including without limitation the reasonable fees and disbursements of Latham & Watkins LLP.
SECTION 4. COUNTERPARTS
SECTION 5. RATIFICATION OF AGREEMENT
5.1. To induce the Majority Holders to enter into this Amendment, the Company and the Guarantors jointly and severally represent and warrant that after giving effect to this Amendment no violation of the terms of the Note Purchase Agreement or any Security Document exist and all representations and warranties contained in the Note Purchase Agreement and each Security Document are true, correct and complete in all material respects on and as of the date hereof except to the extent such representations and warranties specifically relate to an earlier date in which case they were true, correct and complete in all material respects on and as of such earlier date.
5.2. Except as expressly set forth in this Amendment, the terms, provisions and conditions of the Note Purchase Agreement, each Security Document and the other Note Documents are unchanged, and said agreements, as amended, shall remain in full force and effect and are hereby confirmed and ratified.
SECTION 6. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
SECTION 7. ACKNOWLEDGMENT AND CONSENT BY THE GUARANTORS
SECTION 1. WAIVER
The Majority Holders hereby waive any and all rights and remedies of the Holders it may have, including those pursuant to Article VIII of the Note Purchase Agreement and Section 1.5(d) of the Note Purchase Agreement arising directly from the Defaults and Events of Default described on Exhibit B hereto and hereby waive any rights to notice required in the Note Purchase Agreement with respect to such Defaults.
SECTION 2. AMENDMENTS TO THE NOTE PURCHASE AGREEMENT
2.1. Section 4.8 of the Note Purchase Agreement is amended by replacing the first sentence of Section 4.8 and replacing it with the following:
“The capitalization table on Schedule 4.8 sets forth and identifies in reasonable detail all outstanding short-term and long-term Indebtedness of the Company and its Subsidiaries as of the Closing Date (other than under this Agreement and pursuant to the Team Xbox Agreement provided that such Indebtedness does not exceed $350,000), including all notes issued by the Company to finance the acquisition of real or personal property, prior to and after giving effect to the GameSpy Acquisition and the other transactions contemplated by this Agreement.”
2.2. Section 5.2(a)(iii) of the Note Purchase Agreement is amended and restated in its entirety as follows:
“(iii) Annual Financial Statements. As soon as available, but in any event not later than 90 days after the close of each fiscal year (or, with respect to the close of fiscal year 2004, not later than June 7, 2005), an audited consolidated balance sheet of the Company and its Subsidiaries as of the close of such fiscal year, and related audited consolidated statements of operations, cash flows and changes in stockholders’ equity of the Company and its Subsidiaries for such fiscal year, reported on (without any material qualification arising from the scope of the audit or with respect to the continuance of the Company and its Subsidiaries as going concerns) by a nationally recognized firm of independent certified public accountants and prepared in accordance with GAAP consistently applied;”
2.3. Section 5.9 is amended and restated in its entirety as follows:
If any Net Financing Proceeds or Excess Cash Flow remains after completion of a Mandatory Repurchase Offer or the mandatory prepayment of any other Series of First Lien Debt, the Company may use such Net Financing Proceeds or Excess Cash Flow for any purpose not otherwise prohibited by this Agreement. Other than as specifically provided in this Section 5.9 any Mandatory
Repurchase Offer or purchase of Notes pursuant to this Section 5.9 shall be made pursuant to the provisions of Sections 10.2 through 10.6.”
2.4. Section 6.1(b) is amended by deleting the “and” at the end of clause (xi), deleting the “.” at the end of clause (xii) and replacing it with “; and” and inserting the following immediately thereafter:
2.5. The first clause (iii) of Section 6.4 is amended and restated in its entirety as follows:
“(iii) make any payment (whether or not in cash) on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any unsecured Indebtedness or Indebtedness that is subordinated in right of payment to the Notes or any of the Note Guarantees (collectively “Junior Debt”); or”
2.6. Section 6.4 is amended by deleting the “and” at the end of the second clause (iv), deleting the “.” at the end of clause (v) and replacing it with “; and” and inserting the following immediately thereafter:
“(vi) regularly scheduled payments of interest and principal on the Senior Subordinated Notes.”
2.7. The last paragraph of Section 6.6 is amended and restated in its entirety as follows:
The offer price in any Excess Proceeds Offer will be equal to the principal amount thereof plus accrued and unpaid interest to the date of purchase, and will be payable in cash. If any
Excess Proceeds remain after completion of an Excess Proceeds Offer, the Company may use such Excess Proceeds for any purpose not otherwise prohibited by this Agreement and the amount of Excess Proceeds will be reset to zero.”
2.8. Section 7.1 is amended and restated in its entirety as follows:
2.9. Section 7.2 is amended and restated in its entirety as follows:
2.10. Section 7.3 is amended and restated in its entirety as follows:
In addition, the amount of Consolidated Capital Expenditures permitted by this Section 7.3 for any fiscal year shall be increased by an amount equal to the excess of (a) the permitted Consolidated Capital Expenditures for the immediately preceding fiscal year (without giving effect to this sentence) over (b) the amount of Consolidated Capital Expenditures permitted by the applicable clause actually made in such immediately preceding fiscal year; provided the aggregate amount of such excess does not exceed $250,000 in any fiscal year; provided further that any amount that is carried forward to any subsequent fiscal year which is not so expended shall not be available for any further subsequent fiscal year and the amount of Consolidated Capital Expenditures made in any fiscal year shall first be applied against the permitted amount set forth on the schedule above and thereafter applied to the amount available from the prior year.
2.11. Section 7.4 of the Note Purchase Agreement is amended and restated in its entirety as follows:
2.12. Section 8.1 is amended by deleting the “or” at the end of clause (xiii), deleting the “.” at the end of clause (xiv) and replacing it with “; or” and inserting the following immediately thereafter:
“(xv) A default occurs under the Credit Agreement or any other First Lien Document (as defined in the Collateral Trust Agreement).”
2.13. Section 10.1 is amended by inserting the following immediately after subsection (c):
“(d) For purposes of this Section 10.1, a repurchase pursuant to a Repurchase Offer as provided in Section 10.2 hereof shall not be considered a redemption requiring payment of the Prepayment Premium.”
2.14. Article XI of the Note Purchase Agreement is amended by inserting the following defined terms in appropriate alphabetical order in such Article:
““Aggregate Required Prepayment Amount” means for any mandatory prepayment to be prepaid pursuant to Section 5.9, the applicable amount of Net Financing Proceeds or the Applicable Percentage of Excess Cash Flow, as applicable.”
““AskMen Agreement” means the Share Transfer Agreement dated as of May 27, 2005 by and among the Company, 4293746 CANADA Inc., Venture Link Limited, 4205235 Canada Inc., 4205219 Canada Inc., 4205227 Canada Inc., and New Freedom Corporation.”
““AskMen Collateral Agreement” means the Guarantee and Collateral Agreement dated as of May 27, 2005 by and among the Company and certain of its subsidiaries in favor of US Bank National Association, and each certificate, document, agreement or instrument delivered pursuant thereto or in connection therewith, as such may be amended, supplemented or otherwise modified from time to time in accordance with its terms and the terms hereof.”
““AskMen Credit Agreement” means the Credit Agreement by and among the Company, the Lenders (as defined therein) and the US Bank National Association dated as of May 27, 2005, and each certificate, document, agreement or instrument delivered pursuant thereto or in connection
therewith, as such may be amended, supplemented or otherwise modified from time to time in accordance with its terms and the terms hereof.”
““AskMen Note Documents” means the AskMen Credit Agreement and the AskMen Collateral Agreement.”
““AskMen Merger Documents” means the AskMen Agreement and each certificate, document, agreement or instrument delivered pursuant thereto or in connection therewith.”“
““Collateral Trust Agreement” means that certain Collateral Trust Agreement, dated as of May 27, 2005 by and, among the Company, the Guarantors, the Collateral Agent, US Bank National Association, as collateral agent under the Credit Agreement, and US Bank National Association, as collateral trustee thereunder.”
““Credit Agreement” means that certain Credit Agreement, dated as of May 27, 2005 by and among the Company, the Lenders (as defined therein), and US Bank National Association as administrative agent and as collateral agent.”
“First Lien Debt” has the meaning given to such term in the Collateral Trust Agreement.”
““First Lien Percentage” means at any time of measurement with respect to any single Series of First Lien Debt, the percentage that the aggregate outstanding principal amount of such Series of First Lien Debt bears to the aggregate outstanding principal amount of all Series of First Lien Debt.”
“Series of First Lien Debt” has the meaning given to such term in the Collateral Trust Agreement.”
““Team Xbox Agreement” means the Asset Purchase Agreement dated October 20, 2003 by and between Team Xbox LLC and the Company.”“
2.15. Article XI of the Note Purchase Agreement is further amended by adding the following row in the proper chronological order in the table following clause (b) of the definition of “Consolidated EBITDA”:
2.16. Article XI of the Note Purchase Agreement is further amended by inserting the following sentence to the end of the definition of “Financing Proceeds”:
“For the avoidance of doubt, Financing Proceeds shall not include revenue received from licensing of Company’s Intellectual Property on a non-exclusive basis in the ordinary course of business.”
2.17. Article XI of the Note Purchase Agreement is further amended by deleting the “.” at end of clause (x) of the definition of “Permitted Liens” and replacing it with “; and” and inserting the following immediately thereafter:
“(xi) Liens on assets owned by the Company or any of its Subsidiaries securing Obligations under the AskMen Note Documents; and
“(xii) Liens in favor of Silicon Valley Bank or replacement arrangements for the same purpose arising in connection with two blocked accounts with the bank to secure certain obligations as set forth below:
2.18. Article XI of the Note Purchase Agreement is further amended by amending and restating the following defined terms in such Article:
““Acquisition Consideration” means the “Merger Consideration” (as defined in the Rotten Tomatoes Merger Document), and the “Purchase Price” (as defined in the 3D Gamers Agreement and the AskMen Agreement, as appropriate).”
““Acquisition Documents” means each 3D Gamers Merger Document, each Rotten Tomatoes Merger Document and each AskMen Merger Document.”
““Subsequent Investment Cap” means, with respect to the Rotten Tomatoes Merger Agreement, $9,300,000 plus up to $100,000 of working capital adjustments made pursuant to Section 1.11 of the Rotten Tomatoes Merger Agreement, with respect to the 3D Gamers Agreement, $2,000,000, and with respect to the AskMen Agreement, $13,500,000.”“
SECTION 3. CONSENT
3.1. The Majority Holders hereby consent to the amendment to the Securities Purchase Agreement in the form of Exhibit A hereto pursuant to Section 6.5 of the Note Purchase Agreement.
3.2. The Majority Holders and the Collateral Agent hereby consent to the amendment and restatement of the Guarantee and Collateral Agreement, dated March 3, 2004, made by the Company in favor of the Holders, in the form attached hereto as Exhibit C.
3.3. The Majority Holders and the Collateral Agent hereby consent to the Collateral Trust Agreement, dated as of May 27, 2005, by and among the Company, the Guarantors, the Collateral Agent, US Bank National Association, as collateral agent under the Credit Agreement, and US Bank National Association, as collateral trustee thereunder, in the form attached hereto as Exhibit D.
SECTION 4. CONDITIONS PRECEDENT
(a) counterparts hereof duly executed by the Company, the Guarantors, the Collateral Agent and the Majority Holders;
(b) an amendment to the Securities Purchase Agreement in the form of Exhibit A hereto, duly executed by the holders of the requisite principal amount of Senior Subordinated Notes and the holders of the requisite number of shares of Series B Preferred Stock; and
(c) the AskMen Merger Documents, the AskMen Note Documents and each document delivered pursuant thereto, duly executed by each party thereto; and
(d) all costs, fees and expenses payable to the Collateral Agent and the Majority Holders by the Company pursuant to Section 1.6 of the Note Purchase Agreement, including without limitation the reasonable fees and disbursements of Latham & Watkins LLP.
SECTION 5. COUNTERPARTS
SECTION 6. RATIFICATION OF AGREEMENT
6.1. To induce the Majority Holders to enter into this Amendment, the Company and the Guarantors jointly and severally represent and warrant that after giving effect to this Amendment no violation of the terms of the Note Purchase Agreement or any Security Document exists and all representations and warranties contained in this Amendment and in Sections 4.1(a), 4.1(b), and 4.4 of the Note Purchase Agreement, as amended by this Amendment, are true, correct and complete in all material respects on and as of the date hereof except to the extent such representations and warranties specifically relate to an earlier date in which case they were true, correct and complete in all material respects on and as of such earlier date.
6.2. Except as expressly set forth in this Amendment, the terms, provisions and conditions of the Note Purchase Agreement, each Security Document and the other Note Documents are unchanged, and said agreements, as amended, shall remain in full force and effect and are hereby confirmed and ratified.
SECTION 7. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
SECTION 8. ACKNOWLEDGMENT AND CONSENT BY THE GUARANTORS
SECTION 1. WAIVER
The Majority Holders hereby waive any and all rights and remedies of the Holders it may have, including those pursuant to Article VIII of the Note Purchase Agreement and Section 1.5(d) of the Note Purchase Agreement, arising directly from the Defaults and Events of Default described on Exhibit C hereto and hereby waive any rights to notice required in the Note Purchase Agreement with respect to such Defaults.
SECTION 2. AMENDMENTS TO THE NOTE PURCHASE AGREEMENT
2.1. Section 7.2 of the Note Purchase Agreement is amended and restated in its entirety as follows:
2.2. Section 7.4 of the Note Purchase Agreement is amended and restated in its entirety as follows:
SECTION 3. CONSENT
SECTION 4. CONDITIONS PRECEDENT
(a) counterparts hereof duly executed by the Company, the Guarantors, the Collateral Agent and the Majority Holders;
(b) an amendment to the Securities Purchase Agreement in the form of Exhibit A hereto (the “SPA Amendment”), duly executed by the holders of the requisite principal amount of Senior Subordinated Notes and the holders of the requisite number of shares of Series B Preferred Stock; and
(c) an amendment to the Credit Agreement in the form of Exhibit B hereto (the “NPA Amendment”), duly executed by the Majority Lenders (as defined therein) and each Agent (as defined therein); and
(d) all costs, fees and expenses payable to the Collateral Agent and the Majority Holders by the Company pursuant to Section 1.6 of the Note Purchase Agreement, including without limitation the reasonable fees and disbursements of Latham & Watkins LLP.
SECTION 5. COUNTERPARTS
SECTION 6. RATIFICATION OF AGREEMENT
6.1. To induce the Majority Holders to enter into this Amendment, the Company and the Guarantors jointly and severally represent and warrant that after giving effect to this Amendment no violation of the terms of the Note Purchase Agreement or any Security Document exists and all representations and warranties contained in this Amendment and in Sections 4.1(a), 4.1(b), and 4.4 of the Note Purchase Agreement, as amended by this Amendment, are true, correct and complete in all material respects on and as of the date hereof except to the extent such representations and warranties specifically relate to an earlier date in which case they were true, correct and complete in all material respects on and as of such earlier date.
6.2. Except as expressly set forth in this Amendment, the terms, provisions and conditions of the Note Purchase Agreement, each Security Document and the other Note Documents are unchanged, and said agreements, as amended, shall remain in full force and effect and are hereby confirmed and ratified.
SECTION 7. GOVERNING LAW; JURISDICTION; VENUE; WAIVER OF JURY TRIAL.
SECTION 8. ACKNOWLEDGMENT AND CONSENT BY THE GUARANTORS
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