Nautilus 2007 Annual Report Download - page 84

LOAN AND SECURITY AGREEMENT
THIS LOAN AND SECURITY AGREEMENT is dated as of January 16, 2008, among NAUTILUS, INC. , a Washington corporation
(“ US Borrower ”), NAUTILUS INTERNATIONAL S.A. , a Swiss private share company (“ Swiss Borrower ”, and together with US
Borrower, collectively, “ Borrowers ”), the financial institutions party to this Agreement from time to time as lenders (collectively, “ Lenders ”),
and BANK OF AMERICA, N.A. , a national banking association, as agent for the Lenders (“ Agent ”).
R E C I T A L S :
Borrowers have requested that Lenders provide a credit facility to Borrowers to finance their mutual and collective business enterprise.
Lenders are willing to provide the credit facility on the terms and conditions set forth in this Agreement.
NOW, THEREFORE , for valuable consideration hereby acknowledged, the parties agree as follows:
SECTION 1. DEFINITIONS; RULES OF CONSTRUCTION
1.1 Definitions . As used herein, the following terms have the meanings set forth below:
Account : as defined in the UCC, including all rights to payment for goods sold or leased, or for services rendered.
Account Debtor : a Person who is obligated under an Account, Chattel Paper or General Intangible.
Accounts Formula Amount : 85% of the Value of Eligible Accounts of US Borrower and DashAmerica; provided , however , that such
percentage shall be reduced by 1.0% for each whole percentage point (or portion thereof) that the Dilution Percent exceeds 5%.
Acquisition : any transaction, or any series of related transactions, consummated on or after the Closing Date, by which any Obligor
(a) acquires any going business or all or substantially all of the assets of any Person, whether through purchase of assets, merger or otherwise, or
(b) directly or indirectly acquires (in one transaction or as the most recent transaction in a series of transactions) at least a majority (in number of
votes) of the Equity Interests of a Person which has ordinary voting power for the election of directors or other similar management personnel of
a Person (other than Equity Interests having such power only by reason of the happening of a contingency) or a majority of the outstanding
Equity Interests of a Person.
Affiliate : with respect to any Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified; provided that with respect to Borrowers, Affiliate will not include Persons
that would otherwise be Affiliates solely because of common Control by US Borrower’s shareholders if such Persons are portfolio companies
independently operated by such shareholders, in each case unless objected to by Agent in writing. “ Control ” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting
power, by contract or otherwise. “ Controlling ” and “ Controlled ” have correlative meanings.
Agent Indemnitees
: Agent and its officers, directors, employees, Affiliates, agents and attorneys.