July 29, 1999
Xxxxx International Networks, Ltd.
0000 X. Xxxxxxx Xxxxxx
Xxxxxxxxx XX 00000
Attn: Xxx X. Xxxxx
Re: REVOLVING CREDIT FACILITY
Ladies/Gentlemen:
Bank of America, N.A. ("LENDER") is pleased to make available to Xxxxx
International Networks, Ltd., a Colorado corporation, ("BORROWER") a
revolving credit facility on the terms and subject to the conditions set
forth below. Terms not defined herein have the meanings assigned to them in
EXHIBIT A hereto.
1. THE FACILITY.
(a) Subject to the terms and conditions set forth herein, Xxxxxx
agrees to make available to Borrower until the Maturity Date a
revolving line of credit providing for loans ("LOANS") in an
aggregate principal amount not exceeding at any time $20,000,000
(the "COMMITMENT"). Within the foregoing limit, Borrower may
borrow, repay and reborrow Loans until the Maturity Date.
(b) Borrower may, upon 5 Business Days' notice, reduce or cancel the
undrawn portion of the Commitment, PROVIDED, that the amount of
such reduction is not less than $1,000,000 or a whole multiple
thereof.
(c) Xxxxxxxx promises to pay all Loans then outstanding on the
Maturity Date.
(d) Borrower may prepay Loans in full or in part at any time.
Borrower will give Lender irrevocable written notice of
Xxxxxxxx's intention to make the prepayment, specifying the date
and amount of the prepayment. The notice must be received by
Xxxxxx at least 5 Business Days in advance of the prepayment.
Each prepayment, whether voluntary, by reason of acceleration or
otherwise, will be accompanied by the amount of accrued interest
on the amount prepaid and the prepayment fee described below.
2. INTEREST RATES AND COMMITMENT FEE.
(a) REFERENCE RATE. Unless Borrower elects the Fixed Rate as
described below, the interest rate shall be Lender's Reference
Rate MINUS 2% per annum. The Reference Rate is the rate of
interest publicly announced from time to time by Xxxxxx as its
Reference Rate. The Reference Rate is set by Lender based on
various factors, including Xxxxxx's costs and desired return,
general economic conditions and other factors, and is used as a
reference point for pricing some loans. Lender may price loans to
its customers at, above, or below the Reference Rate. Any change
in the Reference Rate shall take effect at the opening of
business on the day specified in the public announcement of a
change in Lender's Reference Rate.
(b) FIXED RATE. Instead of the interest rate based on Xxxxxx's
Reference Rate, Borrower may elect the Fixed Rate PLUS 50 basis
points per annum. Any principal amount bearing interest at an
optional rate under this Agreement is referred to as a "PORTION."
(i) The "FIXED RATE" means the fixed interest rate Lender
and Borrower agree will apply during the applicable
interest period. The interest period during which the
Fixed Rate will be in effect will be between 7 days and
180 days, and each Fixed Rate Portion will be for an
amount not less than $1,000,000.
(ii) Interest shall be payable quarterly in arrears on the
last day of each calendar quarter and on the date of
any prepayment of a Fixed Rate Portion. At the end of
any interest period, the interest rate will revert to
the rate based on the Reference Rate, unless Borrower
has designated another Fixed Rate Portion. No Fixed
Rate Portion may be converted to a different interest
rate during the applicable interest period. Upon the
occurrence of an Event of Default, Lender may terminate
the availability of the Fixed Rate for interest periods
commencing after an Event of Default occurs.
(iii) In addition to the amount of accrued interest on the
amount prepaid, each prepayment of a Fixed Rate Portion
will be accompanied by a prepayment fee equal to the
amount (if any) by which (x)the additional interest
which would have been payable during the interest
period on the amount prepaid had it not been prepaid,
exceeds (y) the interest which would have been
recoverable by Lender by placing the amount prepaid on
deposit in the domestic certificate of deposit market,
the eurodollar deposit market, or other appropriate
money market selected by Lender for a period starting
on the date on which it was prepaid and ending on the
last day of the interest period for such Portion (or
the scheduled payment date for the amount prepaid, if
earlier).
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(c) DEFAULT INTEREST. After the date any principal amount of any Loan
is due and payable (whether on the Maturity Date, upon
acceleration or otherwise), or after any other monetary
obligation hereunder shall have become due and payable, Borrower
shall pay, but only to the extent permitted by law, interest
(after as well as before judgment) on such amounts at a rate per
annum equal to the Reference Rate plus 2%. Such interest shall be
payable on demand.
(d) COMMITMENT FEE. Xxxxxxxx promises to pay a commitment fee of 3/8%
per annum on the actual daily unused portion of the Commitment,
payable in arrears on the last Business Day of each calendar
quarter and on the Maturity Date.
(e) CALCULATION. Interest on Loans when bearing interest at the
Reference Rate shall be calculated on the basis of a year of 365
or 366 days and actual days elapsed. All other interest and fees
hereunder shall be calculated on the basis of a year of 360 days
and actual days elapsed.
3. DISBURSEMENTS AND PAYMENTS.
(a) Each request for a Loan will be made in writing in a manner
acceptable to Lender, or by another means acceptable to Lender.
Lender shall make Loan proceeds available to Borrower by wire
transfer to US Bank, ABA No. 000000000 for credit to Xxxxx
International Networks Ltd. Account No. 103655127605 or such
other accounts from time to time designated by Borrower in
writing to Lender.
(b) Borrower shall make all payments required hereunder on the date
due in same day funds in United States Dollars at the office and
account of Lender designated by Xxxxxx from time to time in
writing. If a due date does not fall on a Business Day, Borrower
will make any payment due hereunder on the first Business Day
following the due date.
(c) Each disbursement by Xxxxxx and each payment by Borrower will be
(i) made in immediately available funds, or such other type of
funds selected by Xxxxxx and (ii) evidenced by records kept by
Xxxxxx. In addition, Lender may, at its discretion, require
Borrower to sign one or more promissory notes.
(d) Lender may honor telephone or telefax instructions for Loans or
repayments or for the designation of optional interest rates
given by any one of the individuals authorized to sign loan
agreements on behalf of Borrower, or any other individual
designated by any one of such authorized signers. Lender will
provide written confirmation to Borrower of transactions made
based on telephone or telefax instructions. Xxxxxxxx agrees to
notify Xxxxxx promptly of any discrepancy between the
confirmation and the telephone or telefax instructions. Borrower
indemnifies and excuses Lender (including its officers,
employees, and agents) from all liability, loss, and costs in
connection with any act resulting from telephone or telefax
instructions Lender reasonably believes
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are made by any individual authorized by Borrower to give such
instructions. This indemnity and excuse will survive this
Agreement's termination.
(e) All payments by Borrower to Lender hereunder shall be made to
Lender in full without set-off or counterclaim and free and clear
of and exempt from, and without deduction or withholding for or
on account of, any present or future taxes, levies, imposts,
duties or charges of whatsoever nature imposed by any government
or any political subdivision or taxing authority thereof.
Xxxxxxxx shall reimburse Lender for any taxes imposed on or
withheld from such payments (other than taxes imposed on Xxxxxx's
income, and franchise taxes imposed on Lender, by the
jurisdiction under the laws of which Xxxxxx is organized or any
political subdivision thereof).
4. (a) CONDITIONS PRECEDENT TO INITIAL LOAN. As a condition
precedent to the initial Loan hereunder, Xxxxxx must receive
the following from Borrower in form satisfactory to Lender:
(i) the enclosed duplicate of this Agreement duly
executed and delivered on behalf of Xxxxxxxx;
(ii) the Guaranty duly executed and delivered by Guarantor;
(iii) the Security Agreement duly executed and delivered by
Guarantor, together with delivery of cash collateral
thereunder in an amount not less than $21,500,000;
(iv) a certified borrowing resolution or other evidence of
Xxxxxxxx's authority to borrow; together with a
certificate of incumbency;
(v) a certified resolution or other evidence of
Guarantor's authority to enter into the Guaranty;
together with a certificate of incumbency; and
(vi) such other documents as Lender may reasonably
request.
(b) CONDITIONS TO EACH BORROWING. As a condition precedent to each
borrowing (including the initial borrowing) of any Loan and
the designation of a Fixed Rate Portion:
(i) the request shall comply with Paragraph 3;
(ii) each representation and warranty set forth in
PARAGRAPH 5 below shall be true and correct in all
material respects as if made on the date of such
borrowing or designation; and
(iii) no Default or Event of Default shall have occurred
and be continuing on the date of such borrowing or
designation.
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Each notice of borrowing or designation shall be deemed a
representation and warranty by Borrower that the conditions
referred to in clauses (ii) and (iii) above have been met.
5. REENTATIONS AND WARRANTIES. Borrower represents and warrants that:
(a) EXISTENCE AND QUALIFICATION; POWER; COMPLIANCE WITH LAWS. It
is a corporation duly organized or formed, validly existing
and in good standing under the laws of the state of its
organization or formation, has the power and authority and the
legal right to own and operate its properties, to lease the
properties it operates and to conduct its business, is duly
qualified and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of
properties or the conduct of its business requires such
qualification, and is in compliance with all laws except to
the extent that noncompliance does not have a Material Adverse
Effect.
(b) POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. The execution,
delivery and performance of this Agreement and the other Loan
Documents by Borrower are within its powers and have been duly
authorized by all necessary action, and this Agreement is and the
other Loan Documents, when executed, will be legal, valid and
binding obligations of Borrower and Guarantor, enforceable in
accordance with their respective terms. The execution, delivery
and performance of this Agreement and the other Loan Documents are
not in contravention of law or of the terms of Xxxxxxxx's or
Guarantor's organic documents and will not result in the breach of
or constitute a default under, or result in the creation of a lien
under any indenture, agreement or undertaking to which Borrower is
a party or by which it or its property may be bound or affected.
(c) FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT. The audited
consolidated balance sheet and statements of earnings and cash
flow of Borrower and its Subsidiaries as of December 31, 1998
present fairly the consolidated financial condition of
Borrower and its Subsidiaries as of such date in accordance
with generally accepted accounting principles applied on a
consistent basis, and since such date, there has been no event
or circumstance that has a Material Adverse Effect.
(d) NO MATERIAL LITIGATION. No litigation or governmental
proceeding is pending or, to the best knowledge of Borrower,
threatened by or against Borrower which, if adversely
determined, has a Material Adverse Effect.
(e) NO DEFAULT. No Default or Event of Default has occurred and is
continuing.
(f) USE OF PROCEEDS. The proceeds of the Loans will be used solely
for general corporate purposes, and not in contravention of
Regulation U of the Board of Governors of the Federal Reserve
Bank or any other requirement of law.
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(g) ERISA. Each Plan is in compliance in all material respects
with the applicable provisions of ERISA, the Code, and other
Federal or state law, including all requirements under the
Code or ERISA for filing reports, and benefits have been paid
in accordance with the provisions of such Plan except where
the failure to be in compliance in all material respects does
not have a Material Adverse Effect.
(h) ENVIRONMENTAL MATTERS. All facilities owned or leased by
Borrower or its Subsidiaries have been and continue to be in
material compliance with all material environmental laws and
regulations.
(i) YEAR 2000. Borrower has (i) initiated a review and assessment of
all areas within its and each of its Subsidiaries' business and
operations (including those affected by customers and vendors)
that could be adversely affected by the "Year 2000 Problem" (that
is, the risk that computer applications and devices containing
imbedded computer chips used by Borrower or any of its
Subsidiaries (or their respective customers and vendors) may be
unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31,
1999), (ii) developed a plan and timeline for addressing the Year
2000 Problem on a timely basis, and (iii) to date, implemented
that plan in accordance with that timetable. Based on the
foregoing, Xxxxxxxx believes that all computer applications and
devices containing imbedded computer chips (including those of its
and its Subsidiaries' customers and vendors) that are material to
its or any of its Subsidiaries' business and operations are
reasonably expected on a timely basis to be able to perform
properly date-sensitive functions for all dates before and after
January 1, 2000 (that is, be "Year 2000 compliant"), except to the
extent that a failure to do so does not have a Material Adverse
Effect.
(j) FULL DISCLOSURE. No written statement made by Borrower to
Lender in connection with this Agreement, or in connection
with any Loan, contains any untrue statement of a material
fact or omits a material fact necessary to make the statement
made not misleading.
6. COVENANTS. So long as principal of and interest on any Loan or any
other amount payable hereunder or under any other Loan Document remains
unpaid or unsatisfied and the Commitment has not been terminated:
(a) INFORMATION. Borrower shall deliver to Lender:
(i) as soon as available and in any event within 90 days
after the end of each fiscal year of Borrower a
consolidated balance sheet of Borrower and its
Subsidiaries as of the end of such fiscal year and
the related consolidated statements of income and
cash flows for such fiscal year, setting forth in
each case in comparative form the figures for the
previous fiscal year, all prepared in accordance with
generally accepted
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accounting principles applied on a consistent basis and
certified by independent public accountants of nationally
recognized standing;
(ii) promptly upon Xxxxxxxx's obtaining knowledge of any
Default or Event of Default, a certificate of the
chief financial officer of Borrower setting forth the
details thereof and any action that Borrower is
taking or proposes to take with respect thereto;
(iii) promptly of any discovery or determination that any
computer application (including those of its
suppliers and vendors) that is material to Borrower's
or any of its Subsidiaries' businesses and operations
will not be Year 2000 compliant on a timely basis,
except to the extent that such failure does not have
a Material Adverse Effect; and
(iv) from time to time such additional information
regarding the financial condition or business of
Borrower and its Subsidiaries as Lender may
reasonably request.
(b) OTHER AFFIRMATIVE COVENANTS. Borrower shall, and shall cause each
of its Subsidiaries to:
(i) preserve and maintain all of its rights, privileges, and
franchises necessary or desirable in the normal conduct of
its business;
(ii) comply with the requirements of all applicable laws,
rules, regulations, and orders of governmental
authorities;
(iii) pay and discharge when due all taxes, assessments,
and governmental charges or levies imposed on it or
on its income or profits or any of its property,
except for any such tax, assessment, charge, or levy
the payment of which is being contested in good faith
and by proper proceedings and against which adequate
reserves are being maintained;
(iv) maintain all of its properties owned or used in its
business in good working order and condition ordinary
wear and tear excepted;
(v) permit representatives of Lender, during normal
business hours, to examine, copy, and make extracts
from its books and records, to inspect its
properties, and to discuss its business and affairs
with its officers, directors, and accountants; and
(vi) maintain insurance in such amounts, with such
deductibles, and against such risks as is customary
for similarly situated businesses.
(c) Negative Covenants. Borrower shall not, nor shall it permit any of
its Subsidiaries to merge or consolidate with or into any Person
or liquidate, wind-
7
up or dissolve itself, or permit or suffer any liquidation or
dissolution, or sell all or substantially all of its assets,
except, that so long as no Default or Event of Default exists or
would result therefrom:
(i) any Subsidiary of Borrower may merge with (1) Borrower
provided that Borrower shall be the continuing or surviving
corporation, (2) with any one or more Subsidiaries of
Borrower, and (3) with any joint ventures, partnerships and
other Persons, so long as such joint ventures, partnerships
and other Persons will, as a result of making such merger
and all other contemporaneous related transactions, become a
Subsidiary of Borrower; PROVIDED that when any wholly-owned
Subsidiary of Borrower is merging into another Subsidiary of
Borrower, the wholly-owned Subsidiary of Borrower shall be
the continuing or surviving Person; and
(ii) any Subsidiary of Borrower may sell all or substantially all
of its assets (upon voluntary liquidation or otherwise), to
Borrower or any of its Subsidiaries; PROVIDED that when any
wholly-owned Subsidiary of Borrower is selling all or
substantially all of its assets to another Subsidiary of
Borrower, the Subsidiary acquiring such assets shall be a
wholly-owned Subsidiary of Borrower.
7. EVENTS OF DEFAULT. The following are "EVENTS OF DEFAULT:"
(a) Borrower fails to pay any principal of any Loan as and on the
date when due; or
(b) Borrower fails to pay any interest on any Loan, or any commitment
fees due hereunder, or any portion thereof, within three days
after the date when due; or Borrower fails to pay any other fees
or amount payable to Lender under any Loan Document, or any
portion thereof, within five days after the date due; or
(c) Any default occurs in the observance or performance of any
agreement contained in PARAGRAPH 6(a) or 6(c) hereof; or
(d) Borrower or Guarantor fails to perform or observe any other
covenant or agreement (not specified above) contained in any Loan
Document on its part to be performed or observed and such failure
continues for 30 days; or
(e) Any representation or warranty in any Loan Document or in any
certificate, agreement, instrument or other document made or
delivered by Borrower or Guarantor pursuant to or in connection
with any Loan Document proves to have been incorrect when made or
deemed made; or
(f) Borrower or Guarantor (i) fails to make any payment in respect of
any indebtedness (other than indebtedness hereunder) or guaranty
obligation having an aggregate principal amount (including
undrawn committed or available amounts and including amounts
owing to all creditors under any combined or
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syndicated credit arrangement) in excess of the Threshold Amount
when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise), or (ii) defaults in the
observance or performance of any other agreement or condition
relating to any such indebtedness or guaranty obligation or
contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event shall occur, the effect of
which default or other event is to cause, or to permit the holder
or holders of such indebtedness or beneficiary or beneficiaries of
such guaranty obligation (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause, with
the giving of notice if required, such indebtedness to be
demanded or become due (automatically or otherwise) prior to its
stated maturity, or such guaranty obligation to become payable or
cash collateral in respect thereof to be demanded, or (iii) is
unable or admits in writing its inability to pay its debts as
they mature; or
(g) Any Loan Document, at any time after its execution and delivery
and for any reason other than the agreement of Lender or
satisfaction in full of all the indebtedness hereunder, ceases to
be in full force and effect or is declared by a court of
competent jurisdiction to be null and void, invalid or
unenforceable in any respect; or Borrower or Guarantor denies
that it has any or further liability or obligation under any Loan
Document, or purports to revoke, terminate or rescind any Loan
Document; or
(h) A final judgment against Xxxxxxxx or Guarantor is entered for the
payment of money in excess of the Threshold Amount and such
judgment remains unsatisfied without procurement of a stay of
execution within 30 calendar days after the date of entry of
judgment; or
(i) Guarantor, Borrower or any of their Subsidiaries institutes or
consents to the institution of any proceeding under Debtor Relief
Laws, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its
property; or any receiver, trustee, custodian, conservator,
liquidator, rehabilitator or similar officer is appointed without
the application or consent of Guarantor, Borrower or such
Subsidiary and the appointment continues undischarged or unstayed
for 60 calendar days; or any proceeding under Debtor Relief Laws
relating to Guarantor, Borrower or any Subsidiary or to all or
any part of Guarantor, Borrower's or such Subsidiary's property
is instituted without the consent of Guarantor, Borrower or such
Subsidiary and continues undismissed or unstayed for 60 calendar
days, or an order for relief is entered in any such proceeding;
or
(j) A Change of Control occurs; or
(k) Any event occurs which has a Material Adverse Effect.
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Upon the occurrence of an Event of Default, Xxxxxx may declare the
Commitment to be terminated, whereupon the Commitment shall be
terminated, and/or declare all sums outstanding hereunder and
under the other Loan Documents, including all interest thereon,
to be immediately due and payable, whereupon the same shall
become and be immediately due and payable, without notice of
default, presentment or demand for payment, protest or notice of
nonpayment or dishonor, or other notices or demands of any kind
or character, all of which are hereby expressly waived; PROVIDED,
HOWEVER, that upon the occurrence of any event specified in
PARAGRAPH 7(i) above, the Commitment shall automatically
terminate, and all sums outstanding hereunder and under each
other Loan Document, including all interest thereon, shall become
and be immediately due and payable, without notice of default,
presentment or demand for payment, protest or notice of
nonpayment or dishonor, or other notices or demands of any kind
or character, all of which are hereby expressly waived.
8. MISCELLANEOUS.
(a) All financial computations required under this Agreement shall be
made, and all financial information required under this Agreement
shall be prepared, in accordance with generally accepted
accounting principles consistently applied.
(b) All references herein and in the other Loan Documents to any time
of day shall mean the local (standard or daylight, as in effect)
time of California.
(c) Borrower shall reimburse or compensate Lender, upon demand, for
all costs incurred, losses suffered or payments made by Lender
which are applied or reasonably allocated by Lender to the
transactions contemplated herein (all as determined by Lender in
its reasonable discretion) by reason of any and all future
reserve, deposit, capital adequacy or similar requirements
against (or against any class of or change in or in the amount
of) assets, liabilities or commitments of, or extensions of
credit by, Lender; and compliance by Lender with any directive,
or requirements from any regulatory authority, whether or not
having the force of law.
(d) No amendment or waiver of any provision of this Agreement or of
any other Loan Document and no consent by Lender to any departure
therefrom by Borrower shall be effective unless such amendment,
waiver or consent shall be in writing and signed by a duly
authorized officer of Lender, and any such amendment, waiver or
consent shall then be effective only for the period and on the
conditions and for the specific instance specified in such
writing. No failure or delay by Xxxxxx in exercising any right,
power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other
rights, power or privilege.
(e) Except as otherwise expressly provided herein, notices and other
communications to each party provided for herein shall be in
writing and shall be delivered by hand or overnight courier
service, mailed or sent by telecopy or
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electronic mail to the address provided from time to time by such
party. Any such notice or other communication sent by overnight
courier service, mail or telecopy shall be effective on the
earlier of actual receipt and (i) if sent by overnight courier
service, the scheduled delivery date, (ii) if sent by mail, the
fourth Business Day after deposit in the U.S. mail first class
postage prepaid, and (iii) if sent by telecopy, when transmission
in legible form is complete. All notices and other communications
sent by the other means listed in the first sentence of this
paragraph shall be effective upon receipt. Notwithstanding
anything to the contrary contained herein, all notices (by
whatever means) to Lender pursuant to PARAGRAPH 3 hereof shall be
effective only upon receipt.
(f) This Agreement shall inure to the benefit of the parties hereto and
their respective successors and assigns, except that Borrower may
not assign its rights and obligations hereunder. Lender may at any
time (i) assign all or any part of its rights and obligations
hereunder to any other Person with the consent of Xxxxxxxx, such
consent not to be unreasonably withheld, PROVIDED that no such
consent shall be required if the assignment is to an affiliate of
Lender or if a Default or Event of Default exists, and (ii) grant
to any other Person participating interests in all or part of its
rights and obligations hereunder without notice to Borrower.
Xxxxxxxx agrees to execute any documents reasonably requested by
Xxxxxx in connection with any such assignment. All information
provided by or on behalf of Borrower to Lender or its affiliates
may be furnished by Lender to its affiliates and to any actual or
proposed assignee or participant.
(g) Borrower shall pay Lender, on demand, all reasonable out-of-pocket
expenses and legal fees (including the allocated costs for
in-house legal services) incurred by Lender in connection with the
enforcement of this Agreement or any instruments or agreements
executed in connection herewith.
(h) Borrower agrees to indemnify, save and hold harmless Lender, its
affiliates, and their respective directors, officers, agents,
attorneys and employees (collectively the "INDEMNITEES") from and
against: (i) any and all claims, demands, actions or causes of
action that are asserted against any Indemnitee by any Person
relating directly or indirectly to a claim, demand, action or
cause of action that such Person asserts or may assert against
Borrower or any of its affiliates, officers or directors; (ii) any
and all claims, demands, actions or causes of action arising out
of or relating to, the Loan Documents, any predecessor loan
documents, the Commitment, the use or contemplated use of the
proceeds of any Loan, or the relationship of Borrower and Lender
under this Agreement; (iii) any administrative or investigative
proceeding by any governmental authority arising out of or related
to a claim, demand, action or cause of action described in clause
(i) or (ii) above; and (iv) any and all liabilities, losses, costs
or expenses (including legal fees, which shall include the
allocated costs for in-house legal services) that any Indemnitee
suffers or incurs as a result of the assertion of any foregoing
claim, demand, action, cause of action or proceeding,
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or as a result of the preparation of any defense in connection
with any foregoing claim, demand, action, cause of action or
proceeding, in all cases, whether or not an Indemnitee is a party
to such claim, demand, action, cause of action or proceeding,
including those liabilities caused by an Indemnitee's own
negligence; PROVIDED that no Indemnitee shall be entitled to
indemnification for any loss caused by its own gross negligence or
willful misconduct or for any loss asserted against it by another
Indemnitee.
(i) If any provision of this Agreement or any other Loan Document
shall be held invalid or unenforceable in whole or in part, such
invalidity or unenforceability shall not affect the remaining
provisions hereof or thereof. This Agreement supersedes all prior
agreements and oral negotiations with respect to the subject
matter hereof.
(j) This Agreement may be executed in one or more counterparts, and
each counterpart, when so executed, shall be deemed an original
but all such counterparts shall constitute but one and the same
instrument.
(k) This Agreement and the other Loan Documents are governed by, and
shall be construed in accordance with, the laws of the State of
California and the applicable laws of the United States of
America. Borrower hereby submits to the nonexclusive jurisdiction
of the United States District Court and each state court in the
City of Los Angeles for the purposes of all legal proceedings
arising out of or relating to any of the Loan Documents or the
transactions contemplated thereby. Borrower irrevocably consents
to the service of any and all process in any such action or
proceeding by the mailing of copies of such process to Borrower at
its address set forth beneath its signature hereto. Borrower
irrevocably waives, to the fullest extent permitted by law, any
objection which it may now or hereafter have to the laying of the
venue of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been brought
in an inconvenient forum.
(l) BORROWER AND XXXXXX EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL
BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
(m) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL
AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
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Please indicate your acceptance of the Commitment on the foregoing terms and
conditions by returning an executed copy of this Agreement to the undersigned
not later than July 31, 1999.
BANK OF AMERICA, N.A.
By: /s/ Xxxxx XxXxxxx
Name: Xxxxx XxXxxxx
Title: Vice President
ACCEPTED AND AGREED TO AS OF
THE DATE FIRST WRITTEN ABOVE:
XXXXX INTERNATIONAL NETWORKS, LTD.
By: /s/ Xxx X. Xxxxx
Name: Xxx X. Xxxxx
Title: Group Vice President
Date: July 29, 1999
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