Nautilus 2008 Annual Report Download - page 89

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Borrowers and certified by a Senior Officer, provided that Agent may from time to time review and adjust any such calculation (a) to
reflect its reasonable estimate of declines in value of any Collateral, due to collections received in the Dominion Account or
otherwise; (b) to adjust advance rates to reflect changes in dilution (without duplication of dilution reserves), quality, mix and other
factors affecting Collateral; and (c) to the extent the calculation is not made in accordance with this Agreement or does not accurately
reflect the Availability Reserve. Notwithstanding the foregoing, Agent will not use a single basis for adjustment to both establish new
Availability Reserves and to reduce advance rates.”
(p) Section 8.2.1 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“ Records and Schedules of Accounts . Each Borrower shall keep accurate and complete records of its Accounts, including all
payments and collections thereon, and shall submit to Agent on or before (i) the fourth business day of each week sales, collection,
reconciliation and other reports in form reasonably satisfactory to Agent and (ii) the 15
th
day of each month (or more frequently as
agreed to by Agent in its reasonable discretion) a detailed aged trial balance of all Accounts as of the end of the preceding month,
specifying each Account’s Account Debtor name and address, amount, invoice date and due date, showing any discount, allowance,
credit, authorized return or dispute, and including such proof of delivery, copies of invoices and invoice registers, copies of related
documents, repayment histories, status reports and other information as Agent may reasonably request. If Accounts in an aggregate
face amount of $5,000,000 or more cease to be Eligible Accounts, Borrowers shall notify Agent of such occurrence promptly (and in
any event within one Business Day) after any Borrower has knowledge thereof.”
(q) Section 8.2.4 of the Loan Agreement is hereby amended and restated in its entirety to read as follows:
“ Maintenance of Dominion Account . Borrowers shall maintain Dominion Accounts pursuant to lockbox or other arrangements
acceptable to Agent. US Borrower shall obtain an agreement (in form and substance satisfactory to Agent) from each lockbox
servicer and Dominion Account bank, establishing Agent’s control over and Lien in the lockbox or Dominion Account, requiring
immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or
bank, except for customary administrative charges. If a Dominion Account is not maintained with Bank of America, Agent may
require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. Neither Agent nor
Lenders assume any responsibility to Borrowers for any lockbox arrangement or Dominion Account, including any claim of accord
and satisfaction or release with respect to any Payment Items accepted by any bank. Collections on Swiss Borrower’s Accounts will
be deposited into a deposit account in Switzerland over which Agent has been granted a Lien pursuant to an assignment agreement in
form and substance satisfactory to Agent and acknowledged by Swiss Borrower’
s depository bank maintaining such Swiss Dominion
Account. Agent will have the authority to direct collections received in the Swiss Borrower’s Dominion Account to US Borrower’s
main Dominion Account.”
5