EXHIBIT 99.2
THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AND
INTERCREDITOR AGREEMENT (THE "SUBORDINATION AGREEMENT") DATED AS OF SEPTEMBER
28, 2001 BY AND AMONG PROQUEST COMPANY, A DELAWARE CORPORATION, FILEMASTER
HOLDINGS, INC., A DELAWARE CORPORATION (THE "COMPANY") AND XXXXXX FINANCIAL,
INC. ("AGENT"), TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY THE COMPANY
PURSUANT TO THAT CERTAIN CREDIT AGREEMENT DATED AS OF SEPTEMBER 28, 2001 BY AND
AMONG BH ACQUISITION, INC., AGENT AND THE LENDERS FROM TIME TO TIME PARTY
THERETO, AS SUCH CREDIT AGREEMENT HAS BEEN AND HEREAFTER MAY BE AMENDED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME AND TO INDEBTEDNESS
REFINANCING THE INDEBTEDNESS UNDER THAT AGREEMENT AS CONTEMPLATED BY THE
SUBORDINATION AGREEMENT; AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE
HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT.
UNSECURED SUBORDINATED PROMISSORY NOTE
$21,750,000 September 28, 2001
ARTICLE I
TERMS
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FOR VALUE RECEIVED, the undersigned Filemaster Holdings, Inc., a
Delaware corporation (the "Company"), promises to pay to the order of ProQuest
Company and its successors and assigns (collectively, the "Holder") the
principal sum of Twenty One Million Seven Hundred Fifty Thousand Dollars
($21,750,000). The principal amount, together with accrued and unpaid interest,
shall be paid in legal tender of the United States upon the earlier of March 31,
2010, the occurrence of a Mandatory Prepayment Event or as otherwise provided
herein upon the occurrence of an Event of Default (as applicable, the "Maturity
Date"). Interest will accrue on the unpaid principal balance at a rate of seven
and one-half percent (7 1/2%) per annum for the period beginning on the date
hereof and ending on the March 2005 Interest Payment Date (as defined below) and
thereafter interest will accrue at a rate of fifteen percent (15%) per annum, in
each case, computed on the basis of a 360-day year compounded semi-annually;
provided that if an Event of Default shall occur, the interest rate shall be
three percent (3%) per annum over the then applicable interest rate for the
period after the occurrence of the Event of Default until the Event of Default
is cured or the unpaid principal amount hereof is paid in full, whether or not
the Holder accelerates payment; and provided further, that in certain events
Additional Interest as specified in Article II hereof will accrue on this Note.
Accrued interest will be payable semiannually in arrears on the last business
day of March and September commencing on the last business day of March, 2002
(each an "Interest Payment Date"); provided, that for the Interest Payment Dates
commencing on March 2002 and ending on September 2006, such accrued interest
shall be deemed not then due and payable hereunder but instead shall continue to
accrue. All accrued and unpaid interest under this Note shall be due and payable
on the March 2007 Interest Payment Date. Thereafter, all interest hereunder
shall be paid in cash. To the extent that any interest hereunder is not paid in
cash, such interest shall continue to accrue and shall bear interest at the
rates (including any default rates and any Additional Interest) specified
herein. Notwithstanding any other provision contained in this Note, the
aggregate annual interest rate charged hereunder (including all charges and fees
deemed to be interest pursuant to applicable law) shall not exceed the maximum
annual rate permitted by applicable law. In the event that the aggregate annual
interest rate payable hereunder (including all charges and fees deemed to be
interest under applicable laws) exceeds the maximum legal rate, the Company
shall only pay the Holder interest at the maximum permitted rate, and the
Company shall continue to make such interest payments at the maximum permitted
rate until all amounts, fees and obligations payable hereunder have been paid in
full.
This Note was issued pursuant to the Purchase and Sale Agreement
between the Holder and BH Acquisition, Inc. dated September 20, 2001 (the
"Agreement"). This Note evidences the Company's obligation to pay a portion of
the purchase price for the stock and assets described therein and the principal
amount hereof may be subject to adjustment pursuant to the terms of Article III
thereof. This Note may be prepaid in whole or in part at any time without
premium or penalty.
All payments hereunder shall be made in lawful currency of the United
States by wire transfer of immediately available funds to an account specified
by the Holder, or, at the option of the Holder, in such manner and at such other
place in the United States of America as the Holder shall have designated to the
Company in writing. All payments hereunder shall be applied first to any fees
and expenses due hereunder, then to accrued (but not yet capitalized) interest
and then to principal (including any capitalized interest).
ARTICLE II
COVENANTS
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The Company covenants and agrees that so long as any principal,
interest, fees or other amounts payable under this Note remain outstanding:
2.1 Senior Indebtedness. The Company will not, and will not permit any
of its Subsidiaries to, enter into a Senior Credit Agreement that prohibits cash
interest payments on this Note (or prohibits dividends to make such payments) in
accordance with the terms hereof, except as the Holder has otherwise agreed
pursuant to the terms of the Subordination Agreement.
2.2 Restricted Payments. The Company will not, and will not permit any
Subsidiary to, directly or indirectly, declare, order, pay, make or set apart
any sum for any Restricted Payment except (a) dividends to members of management
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and repurchases and redemptions from management, in each case to the extent
provided in any employment agreement, executive stock agreement or similar
arrangement between the Company (or its Subsidiaries) and management of the
Company and its Subsidiaries and (b) the Tax Distributions described in Section
2.3 below.
2.3 Tax Payments. Unless and until interest under this Note is paid in
cash, so long as BH Acquisition, Inc. is in compliance with its Fixed Charge
Coverage Ratio (as defined in the Senior Credit Agreement) and no default is
continuing thereunder or would occur as a result of the payment described below,
the Company will, and will cause its Subsidiaries to, make a payment or other
distribution (a "Tax Distribution") to the Holder to enable the Holder to pay
income taxes with respect to the accrued interest on this Note. Such Tax
Distribution shall be made on April 10 of each year and shall be equal to 40% of
the accrued interest for the preceding calendar year. Any Tax Distribution made
pursuant to this Section 2.3 shall be credited to accrued interest, thus
reducing the amount of accrued interest by the amount of the Tax Distribution.
2.4 Failure to Comply With Covenants. In the event that the Company
fails to comply with any of the covenants set forth in this Article II,
additional interest ("Additional Interest") will accrue on the unpaid principal
and interest of this Note at a rate of three percent (3%) per annum for the
period beginning on the date such failure to comply occurs and continuing until
the Company is in compliance or the unpaid principal and interest hereunder is
paid in full.
ARTICLE III
EVENTS OF DEFAULT
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3.1 The occurrence of one or more of the following events shall
constitute an "Event of Default" under this Note;
(a) Nonpayment. (i) Nonpayment when due of the principal
amount of this Note or (ii) nonpayment of any interest due hereunder within
fifty (50) days following the due date; or
(b) Cross-Acceleration. Payment of the Senior Indebtedness
shall be accelerated; or
(c) Insolvency Events. With respect to the Company or any of
its Subsidiaries:
(1) such Person shall be adjudicated insolvent or bankrupt or
shall generally fail to pay or admit in writing its inability to pay
its debts as they become due;
(2) such Person shall seek dissolution or reorganization or
the appointment of a receiver, trustee, custodian or liquidator for it
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or a substantial portion of its property, assets or business or to
effect a plan or other arrangement with its creditors;
(3) such Person shall make a general assignment for the
benefit of its creditors or consent to, or acquiesce in the appointment
of, a receiver, trustee, custodian or liquidator for a substantial
portion of its property, assets or business;
(4) such Person shall file a voluntary petition under any
bankruptcy, insolvency or similar law; or
(5) such Person, or a substantial portion of its property,
assets or business, shall become the subject of an involuntary
proceeding or petition for its dissolution or reorganization or the
appointment of a receiver, trustee, custodian or liquidator and any
such proceeding or petition shall not be dismissed within forty-five
(45) days after commencement or filing, as the case may be, or any
order for relief shall be entered in any such proceeding.
3.2 Consequences of Events of Default. Upon the occurrence of any Event
of Default described in the foregoing clause 3.1(c), the unpaid principal amount
owing under this Note, together with all accrued and unpaid interest thereon and
all other amounts due and payable with respect thereto, shall automatically
become immediately due and payable, without presentment, demand, protest, notice
of intent to accelerate, notice of acceleration or other requirements of any
kind, all of which are hereby expressly waived by the Company and the Company
will immediately pay to the Holder all amounts due and payable with respect to
this Note. Upon the occurrence and during the continuance of any other Event of
Default, the Holder of this Note may, by written notice to the Company, declare
all or any portion of the unpaid principal amount owing under this Note to be
due and payable, whereupon such unpaid principal amount (together with all
accrued and unpaid interest thereon and all other amounts due and payable with
respect thereto) shall automatically become immediately due and payable, without
any other notice of any kind and without presentment, demand, protest or other
requirements of any kind, all of which are hereby expressly waived by the
Company and the Company will immediately pay to the Holder of this Note all such
amounts declared to be due and payable with respect to this Note. The provisions
of this Section 3.2 are subject to the terms of the Subordination Agreement.
ARTICLE IV
DEFINITIONS
-----------
For purposes of this Note, the following terms shall have the meanings
set forth below:
"Indebtedness" of any Person shall mean all indebtedness of such person
for borrowed money (whether by loan or the issuance and sale of debt
securities).
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"Mandatory Prepayment Event" shall mean any event, transaction or
occurrence as a result of which (a) the Original Investors shall cease to own
and control all of the economic and voting rights associated with ownership of
at least fifty-one percent (51%) of the outstanding capital stock of all classes
of the Company on a fully diluted basis, or (b) either of the Company or BH
Acquisition, Inc. shall sell more than 50% of its assets in any one transaction
or in a series of transactions, or (c) the Company shall dissolve, wind up or
otherwise cease to do business or (d) the Company makes any Restricted Payment
to any of the Original Investors, except to the extent provided in any
employment agreement, executive stock agreement or similar arrangement between
Original Investors that are part of management of the Company and its
Subsidiaries, or (e) the Company shall cease to hold 100% of the stock of BH
Acquisition, Inc.
"Original Investors" shall mean the Glencoe Funds and the Co-Investors.
"Glencoe Funds" shall mean BH Equity Holdings, LLC, a Delaware limited liability
company, Glencoe Capital Partners II, L.P., a Delaware limited partnership,
Glencoe Capital Partners III, a Delaware limited partnership in process of
formation, Glencoe Capital Institutional Partners III, L.P., a limited
partnership in process of formation, and such other funds as may be established
which are managed directly or indirectly by the Managing Directors of Glencoe
Capital, L.L.C. Co-Investors shall mean State of Michigan Retirement System,
Massachusetts Mutual Life Insurance Company and limited partners in any Glencoe
Funds.
"Person" shall mean an individual, partnership, corporation, limited
liability company, joint stock company, land trust, business trust or
unincorporated organization.
"Restricted Payment" shall mean (a) any dividend or other redemption,
direct or indirect, on account of any capital stock, partnership interests or
limited liability company interests (collectively, "Equity Interests") of the
Company, (b) any redemption, retirement, sinking fund or similar payment,
purchase or other acquisition for value of any Equity Interests of the Company,
or (c) any payment or prepayment of principal, premium, interest, fees or other
charges on, or redemption, purchase, retirement, defeasance, sinking fund or
similar payment with respect to any Indebtedness (including, without limitation,
any indebtedness evidenced by a note, bond, debenture or similar instrument) of
the Company or any of its Subsidiaries to any holder of Equity Interests of the
Company (other than to holders of any Specified Equity Interests).
"Senior Credit Agreement" shall mean, with respect to the Company or
any Subsidiary, any agreement or instrument evidencing Indebtedness which is
intended to constitute "Senior Indebtedness" hereunder and under the
Subordination Agreement, as the same may be amended, restated or refinanced from
time to time.
"Senior Indebtedness" shall mean Indebtedness and other monetary
obligations of the Company and/or any Subsidiary under or in respect of a Senior
Credit Agreement, as such Senior Credit Agreement may be amended, restated or
refinanced from time to time.
"Specified Equity Interests" shall mean Equity Interests acquired by a
Person in connection with the issuance of Indebtedness of the Company (or any
Subsidiary) to any such Person, including any additional Equity Interests issued
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in connection with amendments, extensions and refinancings thereof; provided
that neither such Person nor any of such Person's Affiliates (as defined in the
Agreement) shall be holders of any Equity Interests immediately prior to the
original issuance of such Indebtedness.
"Subordination Agreement" shall mean an agreement by and among the
holders of Senior Indebtedness (or an agent on their behalf) and the Holder in
such form as is reasonably satisfactory to each of the holders of Senior
Indebtedness from time to time, the Company and the Holder.
"Subsidiary" shall mean any corporation, partnership or limited
liability company of which a Person owns, directly or indirectly through one or
more intermediaries, more than 50% of the Voting Stock, partnership interests or
membership interests at any time of determination.
"Voting Stock" shall mean securities of any class or classes of a
corporation the holders of which are ordinarily, in the absence of
contingencies, entitled to elect a majority of the corporate directors (or
Persons performing similar functions).
ARTICLE V
GENERAL
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5.1 Descriptive Headings; Interpretation. The descriptive headings of
this Note are inserted for convenience only and do not constitute a substantive
part of this Note. The use of the word "including" in this Note will be by way
of example rather than by limitation.
5.2 Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Note will be in
writing and will be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications will be sent to the Company and the Holder at their respective
addresses indicated in the Agreement or to such other address or to the
attention of such other person as the recipient party has specified by prior
written notice to the sending party.
5.3 No Waiver, Remedies Cumulative. No delay on the part of the Holder
in exercising any right, power or privilege under this Note shall operate as a
waiver thereof, nor shall any single or partial exercise of any right, power or
privilege hereunder or thereunder preclude other or further exercise thereof, or
the exercise of any other right, power or privilege. The rights and remedies
provided in this Note are cumulative and are in addition to all rights or
remedies which the Holder otherwise may have in law or in equity or by statute
or otherwise. Without limiting the generality of the foregoing, nothing in this
Note shall be deemed to preclude or be in lieu of any right or remedy which the
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Holder may have in law or in equity or by statute or otherwise against the
Company or any other person based upon any fraud.
5.4 Amendments and Waivers. This Note may not be changed or amended
orally, and no waiver hereunder may be oral, but any change or amendment hereto
or any waiver hereunder must be in writing and signed by the Holder and the
Company.
5.5 Divisibility and Replacement of Note. This Note may be divided into
multiple notes in such denominations as the Holder and any subsequent Holders
may request upon surrender of such instrument at the principal office of the
Company. In case any Note shall be mutilated, lost, stolen, or destroyed, the
Company shall issue and deliver in exchange and substitution for, and upon
cancellation of the mutilated instrument or in lieu of and substitution for the
instrument lost, stolen or destroyed, a new note or other document of like tenor
and representing an equivalent right or interest, but only upon receipt of
evidence satisfactory to the Company of such loss, theft or destruction; the
affidavit of the Holder, without bond but with promise of indemnity, shall be
satisfactory.
5.6 Governing law; Waivers; Personal Jurisdiction.
(a) THIS NOTE AND RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO
SHALL BE DEEMED TO BE CONTRACTS UNDER THE LAWS OF THE STATE OF ILLINOIS AND FOR
ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT PROVISION OR RULE (WHETHER OF THE STATE OF ILLINOIS OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF ILLINOIS.
(b) Waiver. THE COMPANY HEREBY WAIVES PERSONAL SERVICE OF ANY
AND ALL PROCESS UPON IT AND CONSENTS THAT ALL SUCH SERVICE OF PROCESS MAY BE
MADE BY CERTIFIED MAIL--RETURN RECEIPT REQUESTED, DIRECTED TO THE COMPANY AT THE
ADDRESS INDICATED IN THE AGREEMENT, AND SERVICE SO MADE SHALL BE DEEMED TO BE
COMPLETED TWO BUSINESS DAYS AFTER THE SAME SHALL HAVE BEEN DEPOSITED IN THE U.S.
MAILS, POSTAGE PREPAID. THE COMPANY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL,
ANY OBJECTION BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE IN
CONNECTION WITH ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF
THIS NOTE OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND ALL OTHER COMMON LAW OR STATUTORY
CLAIMS. THE COMPANY REPRESENTS THAT IT HAS REVIEWED THIS WAIVER AND KNOWINGLY
AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL
COUNSEL. IN THE EVENT OF LITIGATION, A COPY OF THIS AGREEMENT MAY BE FILED AS A
WRITTEN CONSENT TO A TRIAL BY THE COURT.
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(c) Exclusive Jurisdiction. EXCEPT AS PROVIDED IN SUBSECTION
(d) HEREOF, THE HOLDER AND THE COMPANY AGREE THAT ALL DISPUTES AMONG OR BETWEEN
THEM ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG OR BETWEEN THEM IN CONNECTION WITH THIS NOTE, AND
WHETHER ARISING IN CONTRACT, TORT, EQUITY, OR OTHERWISE, SHALL BE RESOLVED ONLY
BY STATE OR FEDERAL COURTS LOCATED IN XXXX COUNTY, ILLINOIS AND THE COMPANY
HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY LOCAL, STATE OR FEDERAL
COURT LOCATED WITHIN SAID COUNTY AND SAID STATE. THE HOLDER AND THE COMPANY
ACKNOWLEDGE, HOWEVER, THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY
A COURT LOCATED OUTSIDE OF XXXX COUNTY, ILLINOIS OR SUCH OTHER COUNTY (AS THE
CASE MAY BE). THE COMPANY WAIVES IN ALL DISPUTES ANY OBJECTION THAT IT MAY HAVE
TO THE LOCATION OF THE COURT CONSIDERING THE DISPUTE. NOTHING IN THIS SECTION
SHALL AFFECT THE RIGHT OF THE HOLDER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR AFFECT THE RIGHT OF THE HOLDER TO BRING ANY ACTON OR
PROCEEDING AGAINST THE COMPANY OR ITS PROPERTY IN THE COURTS OF ANY OTHER
JURISDICTION.
(d) Other jurisdictions. WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, THE COMPANY AGREES THAT THE HOLDER SHALL HAVE THE RIGHT TO
PROCEED AGAINST THE COMPANY IN A COURT IN ANY LOCATION TO ENABLE THE HOLDER TO
ENFORCE A JUDGMENT OR OTHER COURT ORDER ENTERED IN FAVOR OF THE HOLDER. THE
COMPANY WAIVES ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN
WHICH THE HOLDER HAS COMMENCED A PROCEEDING DESCRIBED IN THIS SECTION.
5.7 Expenses. The Company agrees to pay the reasonable fees, expenses
and disbursements of the Holder's counsel incurred in connection with the
amendment, interpretation or, during the continuance of an Event or Default, the
enforcement of this Note and/or the Subordination Agreement.
5.8 Indemnification.
(a) In addition to all of the Company's other obligations
under this Note, the Company agrees to defend, protect, indemnify and hold
harmless the Holder, its assignees and all of their respective officers,
directors, shareholders, partners, employees, consultants and agents (including,
without limitation, those retained in connection with the satisfaction or
attempted satisfaction of any of the conditions set forth in this Note)
(collectively, the "Indemnitees") from and against any and all losses, damages,
liabilities, obligations, penalties, fees, costs and expenses (including,
without limitation, reasonable attorneys' and paralegals' fees, costs and
expenses) (collectively, "Losses") incurred by such Indemnitees, whether prior
to or from and after the date of this Note, whether direct, or consequential, as
a result of or arising from or relating to any suit, investigation, action or
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proceeding by any person, either threatened or initiated, asserting a claim for
any legal or equitable remedy against any person under any statute or regulation
(other than suits or other actions by the Company against an Indemnitee where
the Company is successful on the merits), regardless of whether the Indemnitee
seeking indemnification is a party to the action or proceeding for which
indemnification is sought, including, without limitation, any federal or state
securities or labor laws, or under any environmental and safety requirements or
common law principles arising from or in connection with any matter relating to
the financing transactions contemplated by this Note, the Holder's relationship
with the Company or any of its Subsidiaries or by any document, agreement,
certificate or instrument executed or delivered in connection with the
transactions contemplated hereby (including, without limitation, any transaction
financed by the Note, (collectively, "Indemnified Matters"); provided, however,
the Company shall not be obligated to indemnify an Indemnitee to the extent that
the Losses resulted from the willful misconduct or gross negligence of the
Holder. In no event shall the Holder be liable to the Company or any of its
affiliates for indirect, special, consequential or punitive damages. To the
extent that this undertaking to indemnify, pay and hold harmless may be
unenforceable for any reason, the Company shall contribute the maximum portion
which it is permitted to pay and satisfy under applicable law, to the payment
and satisfaction of all Indemnified Matters incurred by Indemnitees.
(b) If an Indemnitee intends to seek indemnification pursuant
to this Section 5.8, such Indemnitee shall promptly notify the Company in
writing of such claim describing such claim in reasonable detail; provided, that
the failure to provide such notice shall not affect the obligations of the
Company except to the extent that it is actually prejudiced thereby. In the
event that such claim involves a claim by a third party against the Indemnitee,
the Company shall have 30 days after receipt of such notice to decide whether it
will undertake, conduct and control, through counsel of its own choosing and at
its own expense, the settlement or defense thereof, and if it so decides, the
Indemnitee shall cooperate with it in connection therewith; provided, that the
Indemnitee may participate in such settlement or defense through counsel chosen
by it; and provided further, that the fees and expenses of such counsel shall be
borne by the Indemnitee.
(c) The Company shall not, without the written consent of the
Indemnitee, settle or compromise any action in any manner, other than a
settlement consisting solely of monetary damages.
(d) If the Company does not notify the Indemnitee within 30
days after the receipt of the Indemnitee's notice of a claim of indemnity
hereunder that it elects to undertake the defense thereof, the Indemnitee shall
have the right to conduct and control, through counsel of its own choosing and
at the Company's expense, the contest, settlement or compromise of the claim,
but the Indemnitee shall not thereby waive any right to indemnity therefor
pursuant to this Agreement.
(e) As long as the Company is contesting any such claim in
good faith, the Indemnitee shall not pay or settle any such claim.
Notwithstanding the foregoing, the Indemnitee shall have the right to pay or
settle any such claim, provided that (i) as long as the Company is contesting
such claim in good faith, any such settlement shall include as an unconditional
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term thereof the delivery by the claimant or plaintiff to the Company of a duly
executed written release of the Company from all liability and obligation in
respect of such action, (ii) in such event Indemnitee shall waive any right to
indemnity therefor by the Company; and (iii) the Indemnitee shall provide the
Company reasonable advance notice of any proposed settlement or payment and
shall not pay or settle any claim if the Company shall reasonably object.
(f) The Indemnitee shall cooperate fully in all aspects of any
investigation, defense, pretrial activities, trial, compromise, settlement or
discharge of any claim in respect of which indemnity is sought pursuant to this
Section 5.8, including, but not limited to, by providing the other party with
reasonable access to employees and officers (including as witnesses) and other
information.
(g) The Indemnitee shall take reasonable steps to mitigate
indemnifiable Losses upon and after becoming aware of any event which could
reasonably be expected to give rise to any Losses that are indemnifiable
hereunder.
5.9 Severability. The provisions of this Note are severable and if any
one clause or provision, or part thereof, in such jurisdiction, then such
invalidity or unenforceability shall affect only such clause or provision, or
part thereof, in such jurisdiction, and shall not in any manner affect such
clause or provision in any other jurisdiction, or any other clause or provision
of this Note in any other jurisdiction.
5.10 Assignment. This Note may not be sold, transferred, assigned or
otherwise negotiated prior to the date that is three years after the date
hereof, other than to an affiliate of the Holder. On and after the date that is
three years and one day after the date hereof, the Holder may assign, sell,
transfer or otherwise negotiate all or a portion of this Note to any other
Person.
* * *
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IN WITNESS WHEREOF, the Company has executed and delivered this Note in
the date first written above.
FILEMASTER HOLDINGS, INC.
/s/ Xxxxxxx X. XxXxxxx
------------------------------------
By: Xxxxxxx X. XxXxxxx
---------------------------------
Its: Assistant Secretary
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