Exhibit 10.28
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CREDIT FACILITY AGREEMENT
BY AND AMONG
XXXXXXXXXXXXX.XXX, INC.
AND
EACH OF ITS DIRECT AND INDIRECT SUBSIDIARIES
AND
MCG FINANCE CORPORATION
(AS AGENT FOR ITSELF AND ANY OTHER LENDER)
Executed and Effective as of March 16, 2000
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TABLE OF CONTENTS
ARTICLE 1: THE CREDIT FACILITIES..............................................1
1.1. Term Loan Facility..................................................1
1.1.1. Establishment of Credit Facility............................1
1.1.2. Facility Maturity...........................................1
1.1.3. Use of Proceeds.............................................2
1.1.4. Term Loan Notes.............................................2
1.1.5. Interest....................................................2
1.1.5.1. Intentionally Blank.................................2
1.1.5.2. Establishment of Portions...........................3
1.1.5.3. Interest Rate Determination.........................3
1.1.5.4. Selection of Rate Index.............................3
1.1.5.5. Applicable Rate Margins.............................3
1.1.5.6. Calculation of Interest.............................4
1.1.5.7. Special LIBO Rate Provisions........................4
1.1.6. Repayment and Prepayment....................................5
1.1.6.1. Interest Payments...................................6
1.1.6.2. Principal Payments -- Amortization..................6
1.1.6.3. Intentionally Blank.................................6
1.1.6.4. Payments at Maturity................................6
1.1.6.5. Prepayments.........................................6
1.1.6.6. Availability for Reborrowing........................7
1.2. Intentionally Blank.................................................7
1.3. Determination of Commitment Amounts.................................7
1.3.1. Initial Commitment..........................................7
1.3.2. Available Credit Portion....................................7
1.3.3. Voluntary Reduction of Commitment...........................8
1.4. Advances............................................................8
1.4.1. Requesting Advances.........................................8
1.4.2. Funding Advances............................................8
1.4.3. Indemnification for Revocation or Failure to Satisfy
Conditions..................................................9
1.4.4. Obligation to Advance.......................................9
1.5. Payments in General.................................................9
1.5.1. Manner and Place of Payments................................9
1.5.2. Special Payment Timing Issues...............................9
1.5.3. Application of Payments.....................................9
1.5.4. LIBO Rate Payments Not at End of Interest Period...........10
1.5.5. Capital Adequacy, Taxes and Other Adjustments..............10
1.5.6. Payment of Expenses, Indemnities and Protective Advances...10
1.5.7. Payments upon Termination..................................10
1.5.8. Late Payments..............................................10
1.5.9. Default Interest...........................................11
1.5.10. Usury Savings Provision...................................11
1.6. Release of Security................................................11
1.7. Fees and Other Compensation........................................11
1.7.1. Origination Fee............................................11
1.7.2. Issuance of Warrants.......................................12
1.7.3. Success Fee................................................12
1.7.4. Other Fees.................................................12
ARTICLE 2: CONDITIONS PRECEDENT..............................................13
2.1. Closing Conditions.................................................13
2.1.1. Compliance.................................................13
2.1.1.1. Fees and Expenses..................................13
2.1.1.2. Representations....................................13
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2.1.1.3. No Default.........................................13
2.1.1.4. No Material Change.................................13
2.1.2. Documents..................................................13
2.1.3. Telecon Acquisition........................................16
2.2. Future Term Loan Advances..........................................17
2.2.1. Advance Request............................................17
2.2.2. Cash Flow Leverage.........................................17
2.2.3. Other Documents............................................17
2.2.4. Additional Acquisitions....................................17
2.2.5. Compliance.................................................17
2.2.5.1. Fees and Expenses..................................17
2.2.5.2. Representations....................................17
2.2.5.3. No Default.........................................17
2.2.6. No Material Change.........................................18
ARTICLE 3: REPRESENTATIONS AND WARRANTIES....................................18
3.1. Organization and Good Standing.....................................18
3.2. Power and Authority................................................18
3.3. Validity and Legal Effect..........................................18
3.4. No Violation of Laws or Agreements.................................18
3.5. Title to Assets; Existing Encumbrances; Identification of
Intellectual and Real Property.....................................18
3.6. Capital Structure and Equity Ownership.............................19
3.7. Subsidiaries, Affiliates and Investments...........................19
3.8. Material Contracts.................................................19
3.9. Licenses and Authorizations........................................20
3.10. Taxes and Assessments.............................................20
3.11. Litigation and Legal Proceedings..................................20
3.12. Accuracy of Financial Information.................................21
3.13. Accuracy of Other Information.....................................21
3.14. Compliance with Laws Generally....................................21
3.15. ERISA Compliance..................................................21
3.16. Environmental Compliance..........................................21
3.17. Margin Rule Compliance............................................21
3.18. Fees and Commissions..............................................21
3.19. Solvency..........................................................22
3.20. Additional FCC and Other Regulatory Representations...............22
3.20.1. General Compliance........................................22
3.20.2. No Unresolved Application, Complaint or Proceeding........22
3.20.3. Status and Renewal of Licenses............................22
ARTICLE 4: AFFIRMATIVE COVENANTS.............................................22
4.1. Financial and Operating Covenants and Ratios.......................23
4.1.1. Interest Coverage Ratio....................................23
4.1.2. Total Charge Coverage Ratio................................23
4.1.3. Cash Flow Leverage Ratio...................................23
4.2. Periodic Financial Statements and Compliance Certificates..........23
4.2.1. Monthly Financial Statements...............................23
4.2.2. Quarterly Financial Statements.............................23
4.2.3. Annual Financial Statements................................24
4.3. Other Financial and Specialized Reports............................24
4.3.1. Financial Forecasts; Operating Budgets.....................24
4.3.2. Additional Material Contracts, Licenses and
Authorizations.............................................24
4.3.3. Tax Returns................................................24
4.3.4. SEC Filings and Press Releases.............................25
4.3.5. Operating Reports..........................................25
4.4. Fiscal Year........................................................25
4.5. Books and Records; Maintenance of Properties.......................26
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4.6. Existence and Good Standing........................................26
4.7. Deposit Accounts...................................................26
4.8. Insurance; Disaster Contingency....................................26
4.8.1. General Insurance Provisions...............................26
4.8.2. Disaster Recovery and Contingency Program..................26
4.9. Loan Purpose.......................................................27
4.10. Taxes.............................................................27
4.11. Management Changes................................................27
4.12. Litigation and Administrative Proceedings.........................27
4.13. Monitoring Compliance; Occurrence of Certain Events...............27
4.14. Compliance with Laws..............................................27
4.15. Further Actions...................................................27
4.15.1. Additional Collateral.....................................28
4.15.2. Further Assurances........................................28
4.15.3. Estoppel Certificates.....................................28
4.15.4. Waivers and Consents......................................28
4.15.5. Access and Audits.........................................28
4.15.6. Attendance at Board of Directors Meetings.................29
4.16. Costs and Expenses................................................29
4.17. Other Information.................................................29
4.18. Additional FCC and Other Regulatory Affirmative Covenants.........29
4.18.1. Service Interruption......................................29
4.18.2. Correspondence, Orders and Filings........................30
4.19. Billing System Integration........................................30
4.20. Post-Closing Items................................................30
ARTICLE 5: NEGATIVE COVENANTS................................................31
5.1. Capital Expenditures...............................................31
5.2. Additional Indebtedness............................................31
5.3. Guaranties.........................................................32
5.4. Loans..............................................................32
5.5. Liens and Encumbrances; Negative Pledge............................32
5.6. Transfer of Assets.................................................34
5.7. Acquisitions and Investments.......................................34
5.8. New Ventures; Mergers..............................................35
5.9. Transactions with Affiliates.......................................35
5.10. Distributions or Dividends........................................35
5.11. Payment of Subordinated Indebtedness..............................36
5.12. Payment of Management Fees and Other Compensation.................36
5.13. Issuance of Additional Equity.....................................36
5.14. Removal of Assets.................................................36
5.15. Modifications to Organic Documents................................37
5.16. Terms of and Modifications to Material Relationships..............37
5.17. Margin Stock Restrictions; Other Federal Statutes.................37
5.18. Holding Company Structure.........................................37
ARTICLE 6: ADDITIONAL COLLATERAL AND RIGHT OF SET OFF........................37
6.1. Additional Collateral..............................................37
6.2. Right of Set-Off...................................................38
6.3. Additional Rights..................................................38
ARTICLE 7: DEFAULT AND REMEDIES..............................................38
7.1. Events of Default..................................................38
7.1.1. Payment Obligations........................................38
7.1.2. Representations and Warranties.............................38
7.1.3. Financial Covenants........................................38
7.1.4. Other Covenants in Loan Documents..........................38
7.1.5. Default Under Other Agreements with Administrative
Agent or Lenders...........................................39
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7.1.6. Default Under Material Agreements with Other Parties.......39
7.1.7. Security Interest..........................................39
7.1.8. Change of Control..........................................39
7.1.9. Government Action..........................................40
7.1.10. Insolvency................................................40
7.1.11. Additional Liabilities....................................40
7.1.12. Business Interruption.....................................40
7.1.13. FCC and Other Regulatory-Action Defaults..................40
7.1.14. Material Adverse Change...................................41
7.2. Remedies...........................................................41
7.2.1. Acceleration, Termination and Pursuit of Collateral........41
7.2.2. Other Remedies.............................................41
7.2.3. Special Regulatory-Related Remedies........................41
ARTICLE 8: RELATIONSHIP AMONG LENDERS........................................43
8.1. Appointment, Authorization and Grant of Authority..................43
8.2. Acceptance of Appointment..........................................43
8.3. Administrative Agent's Relationship with Borrowers.................43
8.4. Non-Reliance on Administrative Agent and Other Lenders.............43
8.5. Reliance by Administrative Agent...................................44
8.6. Delegation of Duties; Additional Reliance by Administrative Agent..44
8.7. Acting on Instructions of Lenders..................................45
8.8. Actions Upon Occurrence of Default or Event of Default.............45
8.9. Administrative Agent's Rights as Lender in Individual Capacity.....45
8.10. Advances By Administrative Agent..................................46
8.11. Payments to Lenders...............................................46
8.12. Pro-Rata Sharing of Setoff Proceeds...............................46
8.13. Limitation on Liability of Administrative Agent...................46
8.14. Indemnification...................................................47
8.15. Resignation; Successor Administrative Agent.......................47
ARTICLE 9: DEFINITIONS AND RULES OF CONSTRUCTION.............................48
9.1. Definitions........................................................48
9.2. Rules of Interpretation and Construction...........................60
9.2.1. Plural; Gender.............................................60
9.2.2. Section and Schedule References............................60
9.2.3. Titles and Headings........................................61
9.2.4.............................................................61
9.2.5."Shall", "Will", "Must", "Can" and "May" References.........61
9.2.6. Time of Day References.....................................61
9.2.7.............................................................61
9.2.8. Successors and Assigns.....................................61
9.2.9. Modifications to Documents.................................61
9.2.10. References to Laws and Regulations........................62
9.2.11. Financial and Accounting Terms............................62
9.2.12. Conflicts Among Loan Documents............................62
9.2.13. Independence of Covenants and Defaults....................62
9.2.14. Administrative Agent......................................62
ARTICLE 10: MISCELLANEOUS....................................................63
10.1. Indemnification, Reliance and Assumption of Risk..................63
10.2. Assignments and Participations....................................63
10.3. No Waiver; Delay..................................................64
10.4. Modifications and Amendments......................................64
10.5. Disclosure of Information to Third Parties........................65
10.6. Binding Effect and Governing Law..................................66
10.7. Notices...........................................................66
10.8. Relationship with Prior Agreements................................67
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10.9. Severability......................................................68
10.10. Termination and Survival.........................................68
10.11. Reinstatement....................................................68
10.12. Counterparts.....................................................68
10.13. Waiver of Suretyship Defenses....................................68
10.14. Waiver of Liability..............................................69
10.15. Forum Selection; Consent to Jurisdiction.........................69
10.16. Waiver of Jury Trial.............................................70
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SCHEDULES:
Schedule A List of Borrowers
Schedule 1.1.3 Indebtedness Being Satisfied
Schedule 1.4.2 Funding Instructions
Schedule 3.1 Good Standing / Foreign Qualification Jurisdictions
Schedule 3.2 Missing Consents
Schedule 3.5A Intellectual Property
Schedule 3.5B Real Property Interests
Schedule 3.5C Operating Names / Trade Names
Schedule 3.6 Capital Structure / Equity Ownership
Schedule 3.7 Subsidiaries, Affiliates & Investments
Schedule 3.8 Material Contracts
Schedule 3.9 Licenses and Authorizations
Schedule 3.10 Taxes and Assessments
Schedule 3.11 Material Litigation
Schedule 3.18 Fees and Commissions
Schedule 3.20 Pending Regulatory Matters
Schedule 4.7 Existing Deposit Accounts
Schedule 5.2 Permitted Additional Indebtedness
Schedule 5.3 Permitted Additional Guaranties
Schedule 5.4 Permitted Additional Loans
Schedule 5.5 Permitted Additional Liens
Schedule 5.7 Permitted Additional Investments
EXHIBITS:
Exhibit 1.4.1 Form of Advance Request
Exhibit 4.2 Form of Periodic Compliance Certificate
Exhibit 10.2 Form of Assignment and Assumption Agreement
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CREDIT FACILITY AGREEMENT
THIS CREDIT FACILITY AGREEMENT (as defined in Article 9, along with all
other defined terms, this "Agreement") is made and effective as of March 16,
2000, by and among XXXXXXXXXXXXX.XXX, INC. ("BiznessOnline") and each direct and
indirect Subsidiary of BiznessOnline (which either are listed on Schedule A with
the consent of Lenders or are hereafter added as borrowing Subsidiaries pursuant
to the terms hereof) (as more fully defined in Article 9, BiznessOnline and each
such Subsidiary are referred to individually as a "Borrower" and collectively as
the "Borrowers"), and each financial institution that from time to time is a
"Lender" hereunder (as more fully defined in Article 9, each, a "Lender";
collectively, the "Lenders"), and MCG FINANCE CORPORATION (as more fully defined
in Article 9, "MCG" or "Administrative Agent").
R E C I T A L S
WHEREAS, Borrowers desire and have applied to Lenders and Administrative
Agent for a credit facility consisting of a term loan pursuant to which $15.0
million can be borrowed from time to time on a senior secured basis; and
WHEREAS, Lenders and Administrative Agent are each willing to accommodate
the request for credit upon and subject to the terms, conditions and provisions
of the Loan Documents;
NOW, THEREFORE, for good and valuable consideration (receipt and
sufficiency of which are hereby acknowledged), and intending to be legally bound
hereby, Borrowers (jointly and severally) and each Lender and Administrative
Agent hereby agree as follows:
ARTICLE 1: THE CREDIT FACILITIES
1.1. Term Loan Facility.
1.1.1. Establishment of Credit Facility. Subject to the terms and
conditions of and in reliance upon the representations and warranties in the
Loan Documents, each Lender (severally and on a Pro Rata basis with the other
Lenders) will lend funds to Borrowers on a senior secured basis through Advances
from time to time prior to September 16, 2000 (the "Final Term Draw Date") in an
aggregate principal amount advanced not to exceed the Available Credit Portion
(as determined in accordance with Section 1.3.
1.1.2. Facility Maturity. The Term Loan Facility will mature on
February 28, 2001 (as may be extended from time to time in Lenders' sole and
absolute discretion, "Term Loan Maturity Date"). Notwithstanding the foregoing,
Borrowers (at their election) shall have the option (upon delivery of written
notice to Administrative Agent at any time prior to the then effective Term Loan
Maturity Date) of (a) extending such Term Loan Maturity Date for additional
successive periods of 364 calendar days from the date of such notice but in no
event beyond February 28, 2005 and/or (b) extending the then effective Term Loan
Maturity Date until February 28, 2005 upon
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delivery to Administrative Agent of evidence satisfactory to Administrative
Agent that Borrowers have obtained all necessary final regulatory approvals for
the incurrence of indebtedness having a term with such a maturity date.
1.1.3. Use of Proceeds. The funds advanced under this Term Loan
Facility may be used exclusively as follows:
a. Up to $100,000 to satisfy and refinance the indebtedness
owed by Borrowers to the various Persons set forth on Schedule 1.1.3 (which
Schedule shall identify each payee, the corresponding amounts being satisfied,
and the purpose for which such indebtedness being satisfied was initially
incurred), and
b. Up to $5,000,000 to fund acquisitions that have been
approved by Required Lenders (in their sole and reasonable discretion), and
c. Up to $10,000,000 to fund the Telecon Acquisition, and
d. The balance of the Term Loan Commitment (if any) to pay (i)
for fees and expenses associated with consummating and documenting the
transactions contemplated by this Agreement, and (ii) to fund the costs
associated with the development of additional Internet data centers and
integration of acquired networks and services such as salaries, promotional
expenses, advertising expenses and professional fees, and (iii) for such other
purposes as specifically authorized hereunder or in writing by Required Lenders
(in their sole and absolute discretion).
1.1.4. Term Loan Notes. The indebtedness under the Term Loan
Facility and the corresponding (joint and several) obligation of Borrowers to
repay each Lender with interest in accordance with the terms hereof will be
evidenced by one or more Term Loan Notes (as amended, restated, replaced,
supplemented, extended or renewed from time to time, each, a "Term Loan Note";
collectively, the "Term Loan Notes") payable to the order of each Lender. The
Term Loan Notes will be due and payable in full on the Term Loan Maturity Date.
The aggregate stated principal amount of the Term Loan Notes will be the Term
Loan Commitment established as of the Closing Date pursuant to Section 1.3;
provided, however, that the maximum liability under such Term Loan Notes will be
limited at all times to the actual amount of indebtedness (including principal,
interest, fees, expenses and indemnities) then outstanding under the Term Loan
Facility. Each Lender is authorized to note or endorse the date and amount of
each Advance and each payment under the Term Loan Facility on a schedule annexed
to and constituting a part of the Term Loan Notes. Such notations or
endorsements, if made, will constitute prima facie evidence of the information
noted or endorsed on such schedule, but the absence of any such notation or
endorsement will not limit or otherwise affect the obligations or liabilities of
Borrowers thereunder and hereunder.
1.1.5. Interest. Interest under the Term Loan Facility (and with
respect to any other amounts advanced to or on behalf of Borrowers or otherwise
outstanding under the Loan Documents) will be determined and imposed in
accordance with the following provisions (and, as applicable, Sections 1.5 and
1.7):
1.1.5.1. Intentionally Blank.
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1.1.5.2. Establishment of Portions. For purposes of
determining interest, Borrowers may designate and subdivide the outstanding
balance under the Term Loan Facility (including any other amounts advanced to or
on behalf of Borrowers under the Loan Documents) into a maximum of two (2)
Portions accruing interest at an Adjusted LIBO Rate and one (1) Portion accruing
interest at the Prime Rate. No Portion accruing interest at an Adjusted LIBO
Rate may be less than $100,000, and all Portions under the Term Loan Facility
collectively must total the outstanding balance under the Term Loan Facility.
1.1.5.3. Interest Rate Determination. The outstanding
principal balance under each Portion will bear interest (computed daily until
paid in immediately available funds, whether prior to or after the Term Loan
Maturity Date) at the applicable Rate Index (as determined in accordance with
Section 1.1.5.4) plus the applicable Rate Margin (as determined in accordance
with Section 1.1.5.5). If the Prime Rate is the applicable Rate Index for a
Portion, then the interest rate on such Portion will change when and as the
Prime Rate or Rate Margin changes; and if an Adjusted LIBO Rate is the
applicable Rate Index for a Portion, then the interest rate on such Portion will
be established on the first day of each Interest Period for such Portion and
will not change during such Interest Period (except as otherwise permitted under
Section 1.1.5). Notwithstanding the foregoing, the applicable interest rate for
the outstanding balance under the Term Loan Facility from the Closing Date until
the first date on which the Rate Index or Rate Margin may be changed will be
13.91% per annum (i.e., the Adjusted LIBO Rate applicable for a 3-month period
as of the Closing Date plus a Rate Margin of 7.75% per annum).
1.1.5.4. Selection of Rate Index. The applicable Rate Index
for each Portion will be either the Prime Rate or an Adjusted LIBO Rate. The
applicable Rate Index for each Portion may be changed by Borrowers as of the
first calendar day after the end of the applicable Interest Period for such
Portion. At least 3 Business Days (but not more than 10 Business Days) before
any day on which the Rate Index may be changed, Borrowers must notify
Administrative Agent in writing of (a) the dollar amount of each Portion (if
more than one exists) and (b) the selected Rate Index for each Portion during
the subsequent rate period (including, if applicable, the selected length of the
Interest Period for balances accruing interest at an Adjusted LIBO Rate). If
Administrative Agent does not timely receive such written notification as to any
Portion, then the then-current Rate Index will be the applicable Rate Index for
the outstanding balance of such unspecified Portion during the subsequent
Interest Period. With respect to the proceeds of each Advance under the Term
Loan Facility, unless Borrowers request a particular Rate Index at the time of
such Advance, then Administrative Agent may select the applicable Rate Index
from the corresponding Settlement Date for such Advance until the next date on
which the Rate Index may be changed hereunder.
1.1.5.5. Applicable Rate Margins. The Rate Margin applicable
to the Term Loan Facility will be established as of the Closing Date and as of
the first calendar day of each Interest Period after the date that
Administrative Agent and Lenders receive or should have received the most recent
periodic financial statements of Borrowers delivered in accordance with Section
4.2. The Rate Margin will be based upon the Leverage Ratio of (a) Funded Debt as
of the date of establishment of such Rate Margin to (b) OCF as of the last day
of the fiscal quarter reflected on the most recent quarterly financial
statements delivered to Administrative Agent and Lenders in accordance with
Section 4.2, and will be determined according to the following schedule:
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Prime Rate Adjusted LIBO
Leverage Ratio Margin Rate Margin
-------------- ---------- -------------
--LESS THAN--3 3.25% 4.75%
--GREATER THAN OR EQUAL
TO--3.0 but --LESS THAN--4.0 3.75% 5.25%
--GREATER THAN OR EQUAL
TO--4.0 but --LESS THAN--5.0 4.25% 5.75%
--GREATER THAN OR EQUAL
TO--5.0 but --LESS THAN--6.0 5.00% 6.50%
--GREATER THAN OR EQUAL TO--6.0 6.25% 7.75%
If Administrative Agent and Lenders do not timely receive acceptable quarterly
financial statements prepared and delivered in accordance with Section 4.2, then
Administrative Agent (in its sole and absolute discretion) may deem the
applicable Rate Margin for each Portion to be the highest Rate Margin for the
applicable Rate Index reflected in the chart above, either prospectively or
retroactive to the first calendar day of the then-current fiscal quarter and
continuing at such rate until Administrative Agent and Lenders have received
acceptable quarterly financial statements prepared and delivered in accordance
with Section 4.2. Upon the funding of any Advance after the Closing Date in
excess of $250,000, then Administrative Agent (in its sole and absolute
discretion) may elect to prospectively adjust the Rate Margin applicable to each
Portion to reflect the additional amount of Funded Debt thereby outstanding.
Even though the pricing schedule above may contemplate Rate Margins for Leverage
Ratios in excess of the Leverage Ratios from time to time permitted under
Section 4.1: (1) the existence of such pricing in the above schedule (or the
effectiveness thereof) does not amend any of the requirements under Section 4.1
or waive any Default or Event of Default caused by any non-compliance therewith
from time to time and (2) Administrative Agent and Lenders may nevertheless
exercise from time to time during the occurrence of an Event of Default any and
all rights and remedies that are permitted by any Loan Document or applicable
law.
1.1.5.6. Calculation of Interest. Interest under the Term Loan
Facility will be calculated, accrued, imposed and payable on the basis of a
360-day year for the actual number of days elapsed. Interest will begin to
accrue on any amounts advanced to or on behalf of Borrowers under the Loan
Documents on and as of the date such funds are advanced. Unless prohibited by
applicable law, interest will be compounded on a monthly basis and added to the
outstanding principal balance.
1.1.5.7. Special LIBO Rate Provisions. The following
provisions apply with respect to Adjusted LIBO Rates (notwithstanding any other
provision hereof).
a. Change in Adjusted LIBO Rate. Any Adjusted LIBO Rate
may be prospectively adjusted by a particular Lender from time to time to
account for any additional or increased cost of maintaining any necessary
reserves for Eurodollar deposits (including any increase in the Reserve
Percentage) or any increased costs due to changes in the applicable law
occurring subsequent to the commencement of the then-applicable Interest Period.
Such Lender will give Administrative Agent notice of any such determination and
adjustment within a reasonable period of time thereafter. Upon receipt of such
notice, Administrative Agent will provide a copy thereof to Borrowers, and (upon
written request) such Lender will furnish a statement to Administrative Agent
and Borrowers setting forth the basis and the method for determining the amount
of such adjustment. A determination by any Lender hereunder will be conclusive
absent manifest error. If any Lender
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provides any such notice of adjustment, then Borrowers may elect to change the
then-applicable Rate Index (using the same Rate Margin category) to the Prime
Rate for any Portion then subject to an Adjusted LIBO Rate. Such election to
change the Rate Index must be made by providing Administrative Agent written
notice thereof at any time within 10 Business Days after receipt of such notice
of adjustment (notwithstanding any restriction hereunder limiting Rate Index
changes to certain dates, but subject to the requirement to pay all associated
costs therewith). Upon Administrative Agent's receipt of any such written
election, the identified Portion will thereupon begin to accrue interest at the
Prime Rate plus the Rate Margin (as applicable for the same Leverage Ratio as
previously was applicable for the Adjusted LIBO Rate) for the remainder of the
then-current Interest Period for such Portion.
b. Unavailability of Eurodollar Funds. An Adjusted LIBO
Rate will not be available for the Term Loan Facility if a particular Lender at
any time determines or reasonably believes that (1) Eurodollar deposits equal to
the amount of principal under the Term Loan Facility for the applicable Interest
Period are unavailable, or (2) an Adjusted LIBO Rate will not adequately and
fairly reflect the cost of maintaining balances under the Term Loan Facility, or
(3) by reason of circumstances affecting Eurodollar markets, adequate and
reasonable means do not then exist for ascertaining an Adjusted LIBO Rate. Such
Lender will give Administrative Agent notice of any such determination and
adjustment within a reasonable period of time thereafter. Upon receipt of such
notice, Administrative Agent will provide a copy thereof to Borrowers, and (upon
written request) such Lender will furnish to Administrative Agent and Borrowers
a statement setting forth the basis for such determination or reasonable belief.
A determination or belief by any Lender hereunder will be conclusive absent
manifest error.
c. Illegality. An Adjusted LIBO Rate also will not be
available under the Term Loan Facility if a particular Lender at any time
determines or reasonably believes that it is unlawful or impossible to fund or
maintain sufficient Eurodollar liabilities for the Term Loan Facility under an
Adjusted LIBO Rate. Such Lender will give Administrative Agent notice of any
such determination and adjustment within a reasonable period of time thereafter.
Upon receipt of such notice, Administrative Agent will provide a copy thereof to
Borrowers, and (upon written request) such Lender will furnish to Administrative
Agent and Borrowers a statement setting forth the basis for such determination
or reasonable belief. A determination or belief by any Lender hereunder will be
conclusive absent manifest error.
d. Continuance of a Default. An Adjusted LIBO Rate,
unless Required Lenders otherwise consent, also will not be available under the
Term Loan Facility during the existence of any Default or Event of Default under
the Loan Documents.
e. Alternative Rate. During the occurrence of any event
described in either Clauses "b," "c" or "d" of this Subsection, each Lender's
obligation hereunder to fund or maintain balances under an Adjusted LIBO Rate
will be suspended, and during such period, the outstanding balance under the
Term Loan Facility will bear interest at the Prime Rate plus the appropriate
Rate Margin (determined in accordance with Section 1.1.5.5).
1.1.6. Repayment and Prepayment. Each Borrower (jointly and
severally) hereby promises to pay Administrative Agent the aggregate
indebtedness under the Term Loan Facility (and
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other Loan Documents) in accordance with the following provisions (and, as
applicable, Sections 1.3, 1.5 and 1.7):
1.1.6.1. Interest Payments. Interest accrued under the Term
Loan Facility is due and payable monthly in arrears on the last calendar day of
each month and also, at the option of Administrative Agent, on the last calendar
day of each Interest Period for any Portion accruing interest at an Adjusted
LIBO Rate. Such payments shall commence on the first such date after the Closing
Date. Upon prior written notice of at least 30 calendar days from Administrative
Agent to Borrowers, Administrative Agent may change the date during a month on
which such payments are due and payable.
1.1.6.2. Principal Payments -- Amortization. Subject to the
earlier occurrence of the Term Loan Maturity Date pursuant to Section 1.1.2, on
the last calendar day of each May, August, November and February, beginning with
May 31, 2001, a payment of principal equal to the applicable percentage set
forth below of the principal balance under the Term Loan Facility after
accounting for all Advances is due and payable in its entirety. Upon prior
written notice of at least 30 calendar days from Administrative Agent to
Borrowers, Administrative Agent may change the date during a quarter on which
such payments are due and payable.
Date Percentage
---- ----------
May 31, 2001 through
May 30, 2002 3.75% each
May 31, 2002 through
May 30, 2003 6.25% each
May 31, 2003 through
May 30, 2005 7.50% each
1.1.6.3. Intentionally Blank.
1.1.6.4. Payments at Maturity. The outstanding indebtedness
under the Term Loan Facility (including all principal, interest, fees, expenses
and indemnities) is due and payable in its entirety on the Term Loan Maturity
Date.
1.1.6.5. Prepayments.
a. Voluntary Prepayments. At any time, upon prior
written notice to Administrative Agent of at least five (5) Business Days, the
outstanding principal balance under the Term Loan Facility may be prepaid in
whole or in part without premium or penalty, except as provided in Section 1.1.6
or Section 1.5. Any voluntary partial prepayment must be in an amount of not
less than $100,000 or in an integral multiple thereof.
b. Mandatory Prepayments -- Excessive Balance. If the
outstanding indebtedness under the Term Loan Facility at any time exceeds the
Available Credit
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Portion as determined in accordance with Section 1.3, then such excess amount
outstanding must be re-paid to Administrative Agent in its entirety immediately
upon the earlier of (1) awareness by Borrowers of the advance or incurrence
thereof or (2) demand by Administrative Agent for payment thereof.
c. Mandatory Prepayments -- Equity Issuances and Asset
Sales. If any Borrower issues any equity securities (other than equity
securities to another Borrower and/or in connection with an acquisition that is
otherwise permitted hereunder) the proceeds of which are less than $5,000,000 or
greater than $30,000,000, or if Borrowers collectively sell, lease, license,
transfer or otherwise dispose of any assets (other than inventory or other
assets either sold in the ordinary course of business with the proceeds thereof
promptly reinvested in similar assets at similar locations or sold to another
Borrower) exceeding an aggregate fair market value of $1,000,000 in any 12
consecutive calendar months, then a prepayment must be immediately made on the
outstanding indebtedness under the Term Loan Facility, unless Required Lenders
otherwise consent. The amount of any such mandatory prepayment will be the
higher of the cash proceeds or the cash equivalent of the fair market value of
any such equity issuance or asset dispositions net of (1) reasonable commissions
and expenses actually paid to unrelated third parties in connection with such
transactions and (2) taxes actually due as a direct result of such transactions
(as such taxes are estimated and certified to Administrative Agent by an
acceptable certified public accountant or Borrowers' chief financial officer).
d. Mandatory Prepayment - Telecon Acquisition. If the
proceeds of the initial Advance placed in the Escrow Account have not been
released on or prior to April 30, 2000, then on May 1, 2000 such funds shall be
returned to Lenders and shall constitute a prepayment on the outstanding
indebtedness under the Term Loan Facility, unless Required Lenders otherwise
consent.
e. In General. Any prepayments under the Term Loan
Facility must include all accrued but unpaid interest under the Term Loan
Facility allocable to the amount prepaid through the date of such prepayment.
1.1.6.6. Availability for Reborrowing. Principal amounts
repaid or prepaid under the Term Loan Facility prior to the Term Loan Maturity
Date will not be available for reborrowing hereunder.
1.2. Intentionally Blank.
1.3. Determination of Commitment Amounts.
1.3.1. Initial Commitment . Upon the execution of this Agreement and
satisfaction of the conditions precedent set forth in Section 2.1, the Term Loan
Commitment established hereunder will be $15.0 million ("Term Loan Commitment").
1.3.2. Available Credit Portion. The maximum amount of credit
available at any time under the Term Loan Facility may not exceed the amount
resulting from the following formula:
a. The Term Loan Commitment, and
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b. Minus the aggregate amount of Advances previously made to
Borrowers, and
c. Minus such portion of the Term Loan Commitment as is
reserved for future acquisitions under Section 1.1.3 (until such time as such
acquisitions occur), and
d. Minus the then-aggregate amount of all prepayments relating
to equity issuances and asset sales required to have been paid since the Closing
Date under Section 1.1.6.5.c, and
e. Minus the aggregate amount of all voluntary commitment
reductions requested under Section 1.3.3.
(Collectively, the amount resulting from the equation under categories "a"
through "e" above is referred to as the "Available Credit Portion".) On the
effective date of any such reduction in the Available Credit Portion, a
prepayment must be made to the extent required under Section 1.1.6.5.b.
1.3.3. Voluntary Reduction of Commitment. Upon giving Administrative
Agent prior written notice of at least five (5) Business Days, Borrowers at any
time and from time to time may reduce the Term Loan Commitment in multiples of
$100,000. On the effective date of any such reduction, a prepayment must be made
to the extent required under Section 1.1.6.5.b. Any such reduction in the Term
Loan Commitment will be permanent, and such Commitment cannot thereafter be
increased without the written consent of Lenders.
1.4. Advances.
1.4.1. Requesting Advances. To request an Advance (other than the
initial Advances on the Closing Date) under the Term Loan Facility, Borrowers
must give Administrative Agent written notice (or verbal notice by telephone
with immediate written confirmation to follow) at least three (3) Business Days
(but not more than ten (10) Business Days) prior to the requested Settlement
Date for such Advance (such notice, an "Advance Request"). Such Advance Request,
together with certain certifications, must be substantially in the form of
Exhibit 1.4.1 or such other form as Administrative Agent may reasonably request.
Each Advance under the Term Loan Facility pursuant to an Advance Request (unless
Administrative Agent otherwise consents) must be in an amount of at least
$100,000 and may not be greater than the un-borrowed balance of the Available
Credit Portion. Unless Administrative Agent otherwise consents, Borrowers may
only request up to three (3) Advances after the Closing Date.
1.4.2. Funding Advances. Subject to the satisfaction of and
compliance with the terms and conditions hereof (including, as applicable, the
conditions precedent specified in Article 2), Administrative Agent will make
each Lender's Pro Rata portion of each requested Advance (to the extent such
funds are received by Administrative Agent) available by crediting such amount
to the Account with Administrative Agent (or by such other means as
Administrative Agent may consider reasonable). At the written request and
expense of Borrowers, Administrative Agent will wire transfer all or any portion
of an Advance in accordance with such written instructions therefor. By
executing this Agreement, each Borrower (jointly and severally) hereby requests
Administrative Agent and each Lender to make and fund the initial Advances (to
the extent that Administrative
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Agent receives each Lender's Pro Rata portion of the initial Advances) in
accordance with the funding instructions attached as Schedule 1.4.2 (including
placing $10,000,000 in the Escrow Account). MCG acknowledges that it is the only
Lender as of the Closing Date.
1.4.3. Indemnification for Revocation or Failure to Satisfy
Conditions. Each Borrower (jointly and severally) will indemnify each Lender and
Administrative Agent against all losses and costs incurred by such Lender and
Administrative Agent as a result of any revocation of any requested Advance or
any failure to fulfill the applicable conditions precedent to such Advance on or
before the requested Settlement Date specified in an Advance Request. Such
indemnification will include (among other things) all losses and costs incurred
by reason of the liquidation or reemployment of funds required by such Lender or
Administrative Agent to fund the Advance when such Advance, as a result of such
failure, is not made on the requested Settlement Date. Such Lender's or
Administrative Agent's (as applicable) calculation of such losses and costs will
be conclusive absent manifest error.
1.4.4. Obligation to Advance. No Lender will be obligated to make
any Advance under the following circumstances: (a) if the principal amount of
such Advance plus the aggregate amount outstanding under the Term Loan Facility
would exceed the Available Credit Portion, or (b) during the existence of a
Default or an Event of Default hereunder, or (c) if such Advance would cause a
Default or Event of Default hereunder, or (d) after the Final Term Draw Date.
1.5. Payments in General.
1.5.1. Manner and Place of Payments. All payments of principal,
interest, fees, expenses, indemnities and other amounts due under the Loan
Documents must be received by Administrative Agent by wire transfer (unless
Administrative Agent otherwise consents) in immediately available funds in U.S.
dollars (and without any deduction, offset, netting, reservation of rights or
counterclaim) on or before Two O'clock (2:00) p.m. Eastern Time ("ET") on the
due date therefor at the principal office of Administrative Agent set forth in
Notice Section hereof or at such other place as Administrative Agent may
designate from time to time.
1.5.2. Special Payment Timing Issues. Whenever any payment to be
made under any Loan Document is due on a day that is not a Business Day, then
such payment may be made on the next succeeding Business Day, and such extension
of time will be included in the computation of interest under such Loan
Document. Any funds received by Administrative Agent after 2:00 p.m. ET on any
day will be deemed to be received on the next succeeding Business Day.
1.5.3. Application of Payments. All payments and other funds
received by Administrative Agent under the Loan Documents will be applied in the
following order: (a) first to the payment of any fees and charges due under the
Loan Documents, and (b) then to any obligations for the payment of expenses,
costs and indemnities due under the Loan Documents, and (c) then to the payment
of interest due and owing under the Loan Documents, and (d) then to the
principal indebtedness due under the Term Loan Facility, and (e) then to
principal outstanding (but not yet due) under the Term Loan Facility, and (f)
then to any other interest accrued under the Loan Documents, and (g) then to any
other indebtedness of any Borrower or other Obligor to any Lender.
Notwithstanding the foregoing, payments allocable to principal (other than
scheduled periodic payments) will be applied to reduce future scheduled payments
in the inverse order of maturity.
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1.5.4. LIBO Rate Payments Not at End of Interest Period. Upon
payment of any amount accruing interest based upon an Adjusted LIBO Rate on any
day other than the last day of the corresponding Interest Period (whether such
payment is voluntary, mandatory, by demand, acceleration or otherwise), then
Borrowers must pay Administrative Agent the greater of (a) $500 or (b) all costs
and losses (including funding costs and any losses associated with the
re-deployment of such funds for the balance of such Interest Period) that may
arise or be incurred as a result of or in connection with such payment (as such
costs and losses may be calculated by Lenders). Upon written request, Lenders
(through Administrative Agent) will furnish a statement setting forth the basis
for such calculation. A determination or calculation by any Lender hereunder
will be conclusive absent manifest error.
1.5.5. Capital Adequacy, Taxes and Other Adjustments. If any Lender
determines that (a) the adoption, implementation or interpretation after the
Closing Date of any law, treaty, governmental (or quasi-governmental) rule,
regulation, guideline, directive, policy or order regarding capital adequacy,
reserve requirements, taxes or similar requirements, or (b) compliance by such
Lender or any entity controlling or funding the operations of such Lender with
any request or directive regarding capital adequacy, reserve requirements, taxes
or similar requirements (whether or not having the force of law and whether or
not failure to comply therewith would be unlawful) from any central bank,
governmental agency, controlling entity, funding source or body having
jurisdiction would, in either instance, have the effect of increasing the amount
of capital, reserves, taxes (other than income taxes of Administrative Agent or
any Lender), funding costs or other funds required to be maintained or paid by
such Lender and thereby reducing the rate of return on such Lender's capital as
a consequence of its obligations under the Loan Documents, then Borrowers must
pay to such Lender additional amounts sufficient to compensate such Lender for
such reduction. Such Lender will give Administrative Agent notice of any such
determination and payment amount within a reasonable period of time thereafter.
Upon receipt of such notice, Administrative Agent will provide a copy thereof to
Borrowers, and (upon written request) such Lender will furnish a statement to
Administrative Agent and Borrowers setting forth the basis and the method for
determining the amount of such payment. A determination by any Lender hereunder
will be conclusive absent manifest error.
1.5.6. Payment of Expenses, Indemnities and Protective Advances. If
any funds are advanced or costs are incurred by Administrative Agent or any
Lender to or on behalf of Borrowers or otherwise as permitted under the Loan
Documents (including as protective advances), other than Advances pursuant to
Section 1.4, then such advances or costs must be re-paid to Administrative Agent
in their entirety immediately upon the earlier of (a) awareness by Borrowers of
the advance or incurrence thereof or (b) demand by Administrative Agent for
payment thereof.
1.5.7. Payments upon Termination. Notwithstanding any other
provision hereof, the entire outstanding indebtedness under each Facility
(including all principal, interest, fees, expenses and indemnities) is due and
payable in its entirety upon any termination of such Facility, the corresponding
Commitment therefor, or this Agreement.
1.5.8. Late Payments. If any payment (of principal, interest, fees,
expenses, indemnities or other amounts) due under any Loan Document is not
received by Administrative Agent in immediately available funds on or before the
7th calendar day after the due date therefor, then each Borrower (jointly and
severally) hereby agrees (to the maximum extent not prohibited by
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applicable law) to pay to Lenders (through Administrative Agent and upon
Administrative Agent's request) a late payment charge equal to 5% of the amount
of such late payment. Additional and separate late payment charges (to the
maximum extent not prohibited by applicable law) may be subsequently imposed
hereunder by Administrative Agent from time to time (a) if any late payment or
late payment charge is not received by Administrative Agent in immediately
available funds on or before the 30th calendar day after any demand therefor,
and (b) if any other payment due under any Loan Document is not received by
Administrative Agent in immediately available funds on or before the 7th
calendar day after the due date therefor. The late payment charges due under
this Section are in addition to any other interest, fees, charges, expenses or
indemnities due under the Loan Documents.
1.5.9. Default Interest. During the existence of a Default or an
Event of Default hereunder, each Borrower (jointly and severally) hereby agrees
(to the maximum extent not prohibited by applicable law) to pay to Lenders
(through Administrative Agent and upon Administrative Agent's request but
commencing on the date of occurrence of such Default or Event of Default)
interest on any indebtedness outstanding hereunder at the rate of Three Percent
(3%) per annum in excess of the rate then otherwise applicable to such
indebtedness. Notwithstanding the foregoing, if the relevant Default is under
Section 7.1.10, then such rate increase (to the maximum extent not prohibited by
applicable law) will occur automatically without any request by Administrative
Agent.
1.5.10. Usury Savings Provision. Notwithstanding any provision of
any Loan Document, Borrowers (individually and collectively) are not and will
not be required to pay interest at a rate or any fee or charge in an amount
prohibited by applicable law. If interest or any fee or charge payable on any
date would be in a prohibited amount, then such interest, fee or charge will be
automatically reduced to the maximum amount that is not prohibited, and any
interest, fee or charge for subsequent periods (to the extent not prohibited by
applicable law) will be increased accordingly until Administrative Agent and
each Lender receives payment of the full amount of each such reduction. To the
extent that any prohibited amount is actually received by Administrative Agent
or any Lender, then such amount will be automatically deemed to constitute a
repayment of principal indebtedness hereunder.
1.6. Release of Security. Upon termination of the Loan Documents in
accordance with Section 10.10, then Administrative Agent (at the written request
and expense of Borrowers) (i) will release the Obligors and the property serving
as Collateral under the Loan Documents (without representation, warranty,
recourse, liability or indemnification of any kind by or to Administrative Agent
or any Lender), and (ii) will execute and deliver such UCC termination
statements, mortgage releases, deed of trust releases, and other documentation
and instruments (all in form and substance reasonably acceptable to
Administrative Agent) as may be reasonably requested and provided to
Administrative Agent to effect such releases and terminations, and (iii) will
terminate and cancel all Commitments and all Facilities under the Loan
Documents.
1.7. Fees and Other Compensation.
1.7.1. Origination Fee.
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1.7.1.1. On the Closing Date, Borrowers will pay
Administrative Agent an Origination Fee in the amount of $300,000, which amount
is treated as prepaid non-refundable interest.
1.7.1.2. If (a) the Advance made on the Closing Date is
greater than $10 million, or (b) after the Closing Date, Lenders make an
Advance(s) the proceeds of which are not used to fund one or more acquisitions
that have been approved by Required Lenders (other than either the Telecon
Acquisition or the Additional Acquisitions), then, as an additional Origination
Fee, BiznessOnline will issue to Lenders entitled thereto (or their designated
Affiliates) such number of shares of the common stock of BiznessOnline resulting
from the following formula: $500,000 divided by the "Block A Exercise Price" (as
defined in the Warrant Agreement) applicable on the Settlement Date for such
Advance. provided, however, in no event shall the actual number of shares to be
issued under this subsection (if any) be equal to or greater than 20% of the
outstanding shares of BiznessOnline immediately prior to such issuance, or such
lesser percentage that is adopted by the Nasdaq from time to time which would
give rise to a shareholder approval requirement for this financing transaction
or such issuance of shares under Nasdaq marketplace rules and regulations in
force from time to time (the "Nasdaq Limit"). If the number of shares to be
issued under this Section 1.7.1.2 exceeds the Nasdaq Limit then BiznessOnline
shall pay to Lenders entitled thereto (or their designated Affiliates) cash
equal to the fair market value of the shares in excess of the Nasdaq Limit in
lieu of issuing such shares that exceed the Nasdaq Limit.
1.7.2. Issuance of Warrants. As additional compensation for the cost
and risk incurred associated with underwriting and establishing the Term Loan
Facility including but not limited to funding the initial Advance (but in no way
affecting or relieving any Borrower of any of its obligations to fully and
timely perform and to repay the entire indebtedness due under the Loan
Documents), BiznessOnline will issue and grant to Lenders entitled thereto (or
their designated Affiliates) warrants exercisable into shares of common stock of
BiznessOnline sufficient to represent approximately 7.5% of its issued and
outstanding shares of common stock as of the Closing Date, on a fully diluted
basis pursuant to the Warrant Agreement ("Warrants"). The Warrants will be fully
earned by such Lenders (or their Affiliates) as of the Closing Date. The
Warrants (and all of Lenders' rights in connection therewith) are freely
assignable and transferable at any time and from time to time by any Lender
entitled thereto (or any of its Affiliates or assignees) to any other Person,
provided that such Lender complies with any applicable restrictions thereon (and
obtains any necessary approvals in connection therewith) required by any
applicable State PUC (but only to the extent non-compliance therewith could
reasonably be expected to have or cause a Material Adverse Effect), the FCC, the
SEC or the Warrant Agreement itself.
1.7.3. Success Fee. If on or before April 1, 2001, the Borrowers
prepay the Term Loan Facility such that the remaining principal balance of the
Term Loan Facility after application of such prepayment is $3,000,000 or less,
then Borrowers shall also pay to Lenders a Success Fee in the amount of $400,000
on the date of such prepayment.
1.7.4. Other Fees. Other fees and charges may be imposed by
Administrative Agent or any Lender for services rendered under and in accordance
with other agreements with Administrative Agent or such Lender.
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ARTICLE 2: CONDITIONS PRECEDENT
2.1. Closing Conditions. The obligation of Administrative Agent or any
Lender to execute and perform the Loan Documents, and to establish the Term Loan
Facility, and to fund the Advances listed on Schedule 1.4.2 are subject to the
following conditions precedent (unless and except to the extent expressly waived
by Administrative Agent and each Lender in their sole and absolute discretion):
2.1.1. Compliance.
2.1.1.1. Fees and Expenses. Borrowers must have paid (or made
acceptable arrangements with Administrative Agent to pay or authorize
Administrative Agent to deduct from the Term Loan proceeds) all fees and
expenses due and payable hereunder, including all fees due and payable under
Section 1.7 and the reasonable fees and expenses of Administrative Agent's and
each Lender's attorneys and in-house documentation personnel with respect to the
preparation, negotiation and execution of the Loan Documents.
2.1.1.2. Representations. Each, and all, representations and
warranties contained in this Agreement (including those in Article 3) and in
each other Loan Document, certificate or other writing delivered to
Administrative Agent or any Lender pursuant hereto or thereto on or prior to the
Closing Date must be true, correct and complete in all material respects on and
as of the Closing Date, except for such deviations disclosed in writing and
acceptable to Administrative Agent and each Lender.
2.1.1.3. No Default. There must not be any Default or Event of
Default hereunder or any default under any other Loan Document on the Closing
Date, and there must not be any such Default or Event of Default occurring as a
result of executing or advancing funds under the Loan Documents, except for such
defaults disclosed in writing and acceptable to Administrative Agent and each
Lender.
2.1.1.4. No Material Change. There must not have been (in
Administrative Agent's or Lenders' reasonable opinion) any Material Adverse
Change between the date for the most recent financial statements delivered to
Administrative Agent and the Closing Date.
2.1.2. Documents. Administrative Agent must have received the
following documents, agreements and certificates (together with all exhibits and
schedules thereto), each duly executed, in form, substance and amount
satisfactory to Administrative Agent and, when applicable, recorded or filed in
the appropriate public office:
2.1.2.1. Credit Agreement. This Agreement.
2.1.2.2. Promissory Notes. The Term Loan Notes as described in
Section 1.1.4.
2.1.2.3. Security Agreement, Collateral Assignment and Pledge.
A master security agreement, collateral assignment and pledge by each Borrower
in favor of Administrative Agent granting Administrative Agent a security
interest in and collaterally assigning
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to Administrative Agent all of such grantor's tangible and intangible personal
property assets (including fixtures), whether now owned or hereafter acquired,
and the proceeds and products thereof, as collateral security for the
indebtedness and obligations hereunder, together with all necessary financing
statements and termination statements (each as filed), stock certificates and
powers executed in blank, waivers and consents, and evidence of any other
recordations required by applicable law or by Administrative Agent to perfect
such security interests in a manner that will be subject only to Permitted
Liens.
2.1.2.4. Intellectual Property Security Agreements. One or
more separate intellectual property security agreements by each Borrower in
favor of Administrative Agent encumbering all of such grantor's copyrights,
patents, trade names, trademarks, service names, service marks and other
intellectual property (including any and all applications and licenses
therefor), all as now owned or hereafter acquired, and the proceeds and goodwill
thereof, together with all appropriate financing statements and termination
statements (each as filed), waivers and consents, and any other documents or
recordations required by applicable law or by Administrative Agent to perfect
such interests.
2.1.2.5. Estoppel and Consent Agreements. One or more estoppel
and consent agreements in favor of Administrative Agent by each party to any
real property lease with any Borrower and/or any other Material Contract with
any Borrower consenting to the encumbrance of such property and/or the
collateral assignment of the rights with respect thereto in favor of
Administrative Agent and granting to Administrative Agent certain other rights
pursuant thereto.
2.1.2.6. Warrants. One or more separate warrant agreements by
BiznessOnline issuing and granting to each Lender entitled thereto (or its
designated Affiliate) the Warrants, together with all underlying warrant
certificates and evidence of necessary actions by BiznessOnline to authorize and
issue such warrants and related warrant shares.
2.1.2.7. Escrow Agreement. An escrow agreement among Borrowers
to Escrow Agent and Administrative Agent pursuant to which $10,000,000 is placed
in escrow pending closing on the Telecon Acquisition and satisfaction of the
conditions to release of such $10,000,000.
2.1.2.8. Insurance. Current proof of insurance with an
indication of loss payee and additional insured endorsements in favor of
Administrative Agent with respect to all of the coverages required under Section
4.8. Such proof of insurance must be indicated pursuant to one or more
certificates on (a) an XXXXX 27 form (3/93) for property-related insurance
coverages and (b) a modified version of an XXXXX 25-S form (3/93), in each
instance permitting reliance by Administrative Agent and requiring cancellation
notification.
2.1.2.9. Compliance Certificates. A certificate from an
Authorized Officer of each Borrower dated as of the Closing Date certifying as
to compliance with the matters described under Section 2.1.1.
2.1.2.10. Opinions of Counsel. One or more written opinions
from legal counsel to Borrowers addressed to Administrative Agent and each
Lender and Administrative Agent's counsel and dated as of the Closing Date
opining as to such matters as Administrative Agent may request.
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2.1.2.11. Payoff Instructions for Prior Indebtedness. A letter
from Borrowers to Administrative Agent, consistent with the requirements of
Section 1.1.3, Section 1.4 and Section 2.1.1, instructing Administrative Agent
how to disburse the proceeds of the initial Advance, together with payoff and
release letters from each Person receiving any such proceeds.
2.1.2.12. Authorization Documents. A certificate of an
Authorized Officer of each Borrower and each other non-natural person executing
any Loan Document delivering true, accurate and complete versions of (a) its
Articles of Incorporation, Articles of Organization or Certificate of
Partnership (as applicable) and all amendments thereto, and (b) its Bylaws,
Operating Agreements or Partnership Agreements (as applicable) and all
amendments thereto, and (c) the resolutions authorizing its execution, delivery
and full performance of the Loan Documents and all other documents, certificates
and actions required hereunder or in connection herewith, and (d) an incumbency
certificate setting forth its officers (together with the corresponding
signatures), and (e) a long-form good standing and qualification certificate
(issued within 15 calendar days before the Closing Date) with respect to each
jurisdiction listed on Schedule 3.1, and (f) a copy of each License (or renewal
thereof) issued to it by the FCC (and/or, if applicable, any State PUC).
2.1.2.13. Officer's Certificates. One or more certificates of
an Authorized Officer of each Borrower delivering true, accurate and complete
copies of the following documents (together with all amendments, exhibits and
schedules thereto):
a. Lien Searches -- Searches (conducted within 15
calendar days before the Closing Date)
satisfactory to Administrative Agent with respect
to consensual liens, tax liens, judgments and
bankruptcy, listing respectively (1) all effective
UCC financing statements that name any Borrower
(including any predecessor thereto and any
operating or tradenames thereof) as "debtor" that
are filed in the States of New York, Connecticut,
New Jersey, Massachusetts or any other U.S.
jurisdiction in which such debtor currently
operates or has had assets at any time within the
immediately preceding 12 calendar months (together
with copies of such financing statements), and (2)
all tax liens against any Obligor (or the assets
thereof), and (3) all outstanding judgments
against any Obligor (or the assets thereof), and
(4) whether any Obligor has filed bankruptcy
within the preceding 5 years.
b. Financial Statements -- A set of the monthly
financial statements of Borrowers for the month
ending January 31, 2000.
c. Equityholder Agreements -- Each shareholder
agreement, member agreement, partner agreement,
voting agreement, buy-sell agreement, option,
warrant, put, call, right of first refusal, and
any other agreement or instrument with conversion
rights into equity of any Borrower either
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(1) between any Borrower and any holder or
prospective holder of any equity interest of any
Borrower (including interests convertible into
such equity) or (2) otherwise between any two or
more such holders of equity interests.
d. Employment and Non-Compete Agreements -- Each
employment agreement, consulting agreement and
non-compete agreement to which BiznessOnline is a
party.
e. Inter-Affiliate Agreements -- Each written
agreement between any Borrower and any Affiliate
of any Borrower.
f. Disaster Recovery and Contingency Program -- A
description of the currently effective disaster
recovery and contingency program of each Borrower,
as required to be delivered under Section 4.8.
g. Leases as Lessee -- Each lease between any
Borrower and any owner or landlord of real or
personal property used in connection with such
Borrower's business either (1) for which it has an
annual rent obligation in excess of $36,000 or (2)
for a switch site or call center or for a location
at which a Borrower has application hosting
servers, routing equipment or other critical
systems.
h. Leases as Lessor -- Each lease between any
Borrower and any lessee of real or personal
property owned or leased by any Borrower, but only
to the extent the lessee thereunder has an annual
rent obligation in excess of $36,000.
i. Other Agreement -- Such other agreements and
documents as Lender may reasonably request,
including a complete set of the executed asset
purchase agreements and/or merger agreements
governing the Additional Acquisitions.
2.1.2.14. Other Documents. Administrative Agent must have
received any additional agreements, documents and certificates as Administrative
Agent or its counsel may reasonably request.
2.1.3. Telecon Acquisition. All conditions precedent to closing the
Telecon Acquisition other than final approval for such acquisition from the New
York Public Service Commission (and such other conditions as have been disclosed
and are acceptable to Required Lenders) shall have been satisfied or waived
under terms and conditions reasonably acceptable to Required Lenders. In
addition, the due diligence program conducted by Borrowers in connection with
such acquisition separately must be reasonably acceptable to Required Lenders in
form, content and results.
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2.2. Future Term Loan Advances. The obligation of Administrative Agent and
each Lender to fund any request for an Advance under the Term Loan Facility is
subject to the following conditions precedent (unless and except to the extent
expressly waived by Administrative Agent in its sole and absolute discretion,
but with the concurrence of the Required Lenders):
2.2.1. Advance Request. Administrative Agent must have received an
Advance Request under and in accordance with Section 1.4.1.
2.2.2. Cash Flow Leverage. As of the Settlement Date for such
Advance (and in addition to any other requirements and covenants hereunder),
Borrowers must be in compliance with the Pro Forma Leverage Ratio requirement
under Section 4.1 using an amount for Funded Debt that is as of such Settlement
Date and inclusive of the proposed Advance, provided that the $10,000,000 held
in the Escrow Account shall be excluded from such calculation while it is held
in the Escrow Account.
2.2.3. Other Documents. Administrative Agent must have received any
additional documents, certificates and opinions as Administrative Agent or its
counsel may reasonably request, including UCC-1 financing statements, fixture
filings and leasehold mortgages regarding new locations for other assets of any
Borrower.
2.2.4. Additional Acquisitions. Borrowers must have already
consummated or must simultaneously consummate and complete the Additional
Acquisitions under terms and conditions reasonably acceptable to Required
Lenders. In addition, the due diligence program conducted by Borrowers in
connection with such acquisitions separately must be reasonably acceptable to
Required Lenders in form, content and results.
2.2.5. Compliance.
2.2.5.1. Fees and Expenses. Borrowers must have paid (or made
acceptable arrangements with Administrative Agent to pay) all fees and expenses
due and payable hereunder, including all reasonable expenses incurred in
connection with or as a result of reviewing and funding such Advance Request.
2.2.5.2. Representations. Each, and all, representations and
warranties contained in the Loan Documents (including those in Article 3) and in
each other certificate or other writing delivered to Administrative Agent
pursuant hereto or thereto on or prior to the Settlement Date must be true,
correct and complete in all material respects on and as of the Settlement Date,
except for such deviations disclosed in writing and acceptable to Administrative
Agent and each Lender (which disclosure will not constitute Lenders' waiver or
acceptance thereof).
2.2.5.3. No Default. There must not be any Default or Event of
Default hereunder or any default under any other Loan Document on the Settlement
Date, and there must not be any such Default or Event of Default occurring as a
result of funding such Advance, except for such defaults disclosed in writing
and acceptable to Administrative Agent and each Lender (which disclosure will
not constitute Lenders' waiver or acceptance thereof).
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2.2.6. No Material Change. There must not have been (in
Administrative Agent's or Lenders' reasonable opinion) any Material Adverse
Change between the Closing Date and the Settlement Date.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES
Each Borrower, as of the Closing Date and the Settlement Date for each
Advance hereunder, hereby (jointly and severally) represents and warrants as
follows:
3.1. Organization and Good Standing. Each Borrower (a) is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, and (b) has all requisite power and authority (corporate,
partnership, LLC and otherwise) to own its properties and to conduct its
business as now conducted and as currently proposed to be conducted, and (c) is
duly qualified to conduct business as a foreign organization and is currently in
good standing in each state and jurisdiction in which it conducts business,
except where failure to be duly qualified and in good standing could not have a
Material Adverse Effect. Each state and jurisdiction in which any Borrower is
organized or is (or should be) qualified to conduct business under applicable
law is listed on Schedule 3.1.
3.2. Power and Authority. Each Borrower has all requisite power and
authority under applicable law and under its Organic Documents, Authorizations
and Licenses to execute, deliver and perform the obligations under the Loan
Documents to which it is a party. Except as disclosed on Schedule 3.2, all
actions, waivers and consents (corporate, regulatory and otherwise) necessary or
appropriate for any Borrower to execute, deliver and perform the Loan Documents
to which it is a party have been taken and/or received.
3.3. Validity and Legal Effect. This Agreement constitutes, and the other
Loan Documents to which any Borrower is a party constitute (or will constitute
when executed and delivered), the legal, valid and binding obligations of each
Borrower (jointly and severally) enforceable against it in accordance with the
terms thereof.
3.4. No Violation of Laws or Agreements. The execution, delivery and
performance of the Loan Documents (a) will not violate or contravene any
material provision of any material law, rule, regulation, administrative order
or judicial decree (federal, state or local), and (b) will not violate or
contravene any provision of the Organic Documents of any Borrower, and (c) will
not result in any material breach or violation of (or constitute a material
default under) any material agreement or instrument by which any Borrower or any
of its property may be bound, and (d) will not result in or require the creation
of any Lien (other than pursuant to the Loan Documents) upon or with respect to
any properties of any Borrower, whether such properties are now owned or
hereafter acquired.
3.5. Title to Assets; Existing Encumbrances; Identification of
Intellectual and Real Property.
3.5.1. Each Borrower has good and marketable title to all of its
owned real and personal
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property assets and the right to possess and use all of its leased or licensed
real and personal property assets. All such property interests are free and
clear of any Liens, except for Permitted Liens (as defined in Section 5.5). Each
such property and asset owned, leased or licensed by any Borrower is titled,
leased or licensed in the current legal name of such Borrower.
3.5.2. Intellectual Property -- Schedule 3.5A lists each trademark,
service xxxx, copyright, patent, database, customized application software and
systems integration software, trade secret and other intellectual property
owned, licensed, leased, controlled or applied for by any Borrower, whether or
not such intellectual property is recorded with the Copyright Office or the
Patent and Trademark Office, together with relevant identifying information with
respect to such intellectual property describing (among other things) the date
of creation, the method of protection against adverse claims and the
registration number.
3.5.3. Real Property -- Schedule 3.5B lists each real property
interest owned, leased or otherwise used by any Borrower, together with relevant
identifying information describing (among other things) the use of each such
real property interest, the location and mailing address for each such real
property, a legal description for each such real property, an indication of
whether such interest is owned or leased (and, if leased, the lessor and record
owner thereof), and the estimated appraised value thereof. Each such property
and asset is in good order and repair (ordinary wear and tear excepted) and is
covered by the insurance required under Section 4.8.
3.5.4. Schedule 3.5C identifies each legal, operating and trade name
that any Borrower has used (or permitted the filing of a UCC financing statement
under) at any time during the twelve (12) consecutive calendar years immediately
preceding the Closing Date.
3.6. Capital Structure and Equity Ownership. Schedule 3.6 accurately and
completely discloses (a) the number of shares and classes of equity ownership
rights and interests of each Borrower authorized and/or outstanding (whether
existing as common or preferred stock, general or limited partnership interests,
or LLC membership interests, or warrants, options or other instruments
convertible into such equity), and (b) the ownership thereof (except
BiznessOnline which is publicly traded) and the price per share or interest paid
therefor, and (c) the existence of preferential returns or liquidation rights
with respect to any such class of equity, and (d) the existence of any enhanced
voting rights, veto rights or director designation rights with respect to any
such class of equity, and with respect to options, warrants and convertible
instruments, the price, duration and conversion factor thereof. All such shares
and interests are validly existing, fully paid and non-assessable.
3.7. Subsidiaries, Affiliates and Investments. Schedule 3.7 accurately and
completely discloses (a) each Subsidiary and Affiliate of each Borrower (other
than its officers and directors) and (b) each investment in or loan to any other
Person by any Borrower in excess of $25,000.
3.8. Material Contracts. Schedule 3.8 (a) accurately and completely
discloses each Material Contract (as defined below) of each Borrower, and (b)
also indicates the following information with respect to each such contract: (1)
the contract parties thereunder, and (2) the contract term and any options or
renewals thereto, and (3) the monthly payment required thereunder, and (4) any
restrictions on assignments, and (5) any restrictions on disclosure of the terms
thereof, and (6) the existence of any breaches or defaults thereunder. No
Borrower has committed any unwaived breach or default under any Material
Contract (whether or not listed on Schedule 3.8), and after due inquiry and
investigation, no Borrower has any knowledge or reason to believe that any
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other party to any such Material Contract (whether or not listed on Schedule
3.8) has or might have committed any unwaived breach or default thereof. For
purposes of this Section 3.8, a "Material Contract" of a Borrower includes the
following types of agreements to which a Borrower is a party: (1) any contract
either with annual compensation, consideration or payments in excess of $250,000
or with aggregate compensation, consideration or payments in excess of $500,000,
and (2) any lease of real estate or office space from which a Borrower conducts
its primary business operations or from which a Borrower conducts retail
operations, and (3) any lease of real estate or space at which a Borrower has
application hosting servers, routing equipment, or other systems (including
backups) critical to the operation of such Borrower's business, and (4) any
contract, agreement or lease under the terms of which a Borrower obtains the
right to own, use or operate a switch Internet connectivity equipment or
telecommunications equipment for consideration or payments in excess of $250,000
(including, without limitation, the master lease agreement with Cisco Systems),
and (5) leased line agreements with Quest, Frontier and UUNet, and (6) any
carrier agreement which has a term longer than one year and has annual
consideration or payments in excess of $25,000, and (7) any interconnection
agreement which has a term longer than one year, and (8) any software
development agreements for consideration or payments in excess of $100,000, and
(9) any contract relating to any Borrower's billing or provisioning system, and
(10) any other agreement or contract the loss or breach of which could
reasonably be expected to have or cause a Material Adverse Effect.
3.9. Licenses and Authorizations. Each Borrower possesses all Licenses and
other Authorizations necessary or required in the conduct of its businesses
and/or the operation of its properties. Each material Authorization is valid,
binding and enforceable on, against and by such Borrower. Each material
Authorization is subsisting without any defaults thereunder or enforceable
adverse limitations thereon, and no Authorization is subject to any proceedings
or claims opposing the issuance, continuance, renewal, development or use
thereof or contesting the validity or seeking the revocation thereof. Schedule
3.9 accurately and completely lists each material Authorization of each Borrower
(including, whether or not otherwise "material", each License and other
Authorization issued by the FCC or any State PUC, and further including all
pending applications and renewals therefor), together with relevant identifying
information describing such Authorizations. With respect to each License issued
by the FCC or any State PUC listed on Schedule 3.9, the description includes (to
the extent applicable) the call sign, frequency, class, location, file number,
issuance date (original or most recent renewal), and expiration date. For
purposes of this Section 3.9, each Authorization issued by the FCC or any State
PUC will be deemed to be "material".
3.10. Taxes and Assessments. Except as disclosed on Schedule 3.10, each
Borrower has timely filed all required tax returns and reports (federal, state
and local) or has properly and timely filed for extensions of the time for the
filing thereof. No Borrower has knowledge of any deficiency, penalty or
additional assessment due or appropriate in connection with any such taxes. All
taxes (federal, state and local) imposed upon any Borrower or any of its
properties, operations or income have been paid and discharged prior to the date
when any interest or penalty would accrue for the nonpayment thereof, except for
those taxes being contested in good faith by appropriate proceedings diligently
prosecuted and with adequate reserves reflected on the financial statements in
accordance with GAAP (all as also disclosed on Schedule 3.10).
3.11. Litigation and Legal Proceedings. Except as disclosed on Schedule
3.11, there is no litigation, claim, investigation, administrative proceeding,
labor controversy or similar action that is
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pending or (to the best of each Borrower's knowledge and information after due
inquiry) threatened against any Borrower or its properties that, if adversely
resolved, could reasonably be expected to have or cause a Material Adverse
Effect.
3.12. Accuracy of Financial Information. All financial statements
previously furnished to Administrative Agent or any Lender concerning the
financial condition and operations of any one or more Borrowers (a) have been
prepared in accordance with GAAP consistently applied, and (b) fairly present
the financial condition of the organization covered thereby as of the dates and
for the periods covered thereby (but, with respect to interim periodic financial
statements, subject to normal and customary year end audit adjustments), and (c)
disclose all material liabilities (contingent and otherwise) of each Borrower.
In addition, all written information previously furnished to Administrative
Agent or any Lender concerning the financial condition and operations of any
Borrower are true, accurate and complete in all material respects.
3.13. Accuracy of Other Information. All written information contained in
any application, schedule, report, certificate, or any other document furnished
to Administrative Agent or any Lender by any Borrower or any other Person (on
behalf of any Borrower) in connection with the Loan Documents is in all material
respects true, accurate and complete, and no such Person (including Borrowers)
has omitted to state therein (or failed to include in any such document) any
material fact or any fact necessary to make such information not misleading. All
written projections furnished to Administrative Agent or any Lender by any
Borrower or any other Person on behalf of any Borrower have been prepared with a
reasonable basis and in good faith, making use of such information as was
available at the date such projection was made.
3.14. Compliance with Laws Generally. Each Borrower is in compliance in
all material respects with all material laws, rules, regulations, administrative
orders and judicial decrees (federal, state, local and otherwise) applicable to
it, its operations and its properties.
3.15. ERISA Compliance. Each Borrower is in compliance in all material
respects with all applicable provisions of ERISA.
3.16. Environmental Compliance. Each Borrower has received all permits and
filed all notifications necessary under and is otherwise in compliance in all
material respects with the Environmental Control Statutes.
3.17. Margin Rule Compliance. No Borrower owns or has any present
intention of acquiring any "Margin Stock" within the meaning of the following
Margin Regulations of the FRB: Regulation T at 12 C.F.R. Pt. 220, and Regulation
U at 12 C.F.R. Pt. 221, and Regulation X at 12 C.F.R. Pt. 224. The credit
extended under this Agreement does not constitute "Purpose Credit" within the
meaning of the FRB's Margin Regulations.
3.18. Fees and Commissions. Except as disclosed on Schedule 3.18 or as
required by Section 1.7, no Borrower owes any fees or commissions of any kind in
connection with this Agreement or the transactions contemplated hereby, and no
Borrower knows of any claim (or any basis for any claim) for any fees or
commissions in connection with this Agreement or the transactions contemplated
hereby.
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3.19. Solvency. No Borrower is "insolvent," as such term is defined in
Section 101(32) of the Bankruptcy Code (11 U.S.C. ss. 101(32)). No Borrower, by
virtue of its obligations and actions in connection with the Loan Documents, has
engaged or is engaging in any transaction that constitutes a fraudulent transfer
or fraudulent conveyance under applicable federal or state law (including under
Section 548 of the Bankruptcy Code or under the Uniform Fraudulent Transfer Act
or the Uniform Fraudulent Conveyance Act).
3.20. Additional FCC and Other Regulatory Representations. Without
limiting the generality of the foregoing representations and warranties, each
Borrower further represents and warrants as follows:
3.20.1. General Compliance. Each Borrower is in compliance in all
material respects with all material laws, rules, regulations, administrative
orders, policies and procedures issued, implemented or administered by the FCC
and/or any State PUC applicable to such Borrower, its operations and its
properties.
3.20.2. No Unresolved Application, Complaint or Proceeding. Except
as described on Schedule 3.20, there is no outstanding or unresolved (a)
application by any Borrower for any FCC or State PUC Authorization (including
any renewal of any License), or (b) material complaint to the FCC or any State
PUC regarding any Borrower or any of its Authorizations, or (c) litigation,
investigation or other inquiry by or before the FCC or any State PUC involving
any Borrower or any of its Authorizations, or (d) FCC or State PUC enforcement
proceeding against any Borrower or any of its Authorizations (including any
notice of violation, any notice of apparent liability for forfeiture, or any
forfeiture).
3.20.3. Status and Renewal of Licenses. The Licenses identified on
Schedule 3.9 constitute all of the Licenses currently required by the Federal
Communications Act or any State Communications Act for the operation of each
Borrower's business as it is currently being operated. Each such License is
validly outstanding and effective and has been renewed by the FCC or a State PUC
without condition for a full term in accordance with the Federal Communications
Act or a State Communications Act. There are no modifications, amendments or
revocations (pending or, to the best of the knowledge of each Borrower after due
inquiry, threatened) that could adversely affect the operations or financial
condition of any Borrower. After due inquiry, no Borrower knows of any reason
why the FCC or any State PUC would not routinely grant (for a full term and
without condition) the application by such Borrower for the renewal of each such
License over which the FCC or such State PUC has jurisdiction, when and as such
application shall become due to be filed with the FCC or such State PUC.
ARTICLE 4: AFFIRMATIVE COVENANTS
Each Borrower (jointly and severally) hereby covenants and agrees that, so
long as any indebtedness remains outstanding hereunder, each Borrower will
comply with the following affirmative covenants:
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4.1. Financial and Operating Covenants and Ratios. As of the end of each
fiscal quarter, beginning with the fiscal quarter ending September 30, 2000,
Borrowers will satisfy each of the following financial and operating ratios and
characteristics, each of which will be determined (as applicable) using GAAP
consistently applied, except as otherwise expressly provided:
4.1.1. Interest Coverage Ratio. A ratio of Pro Forma OCF to Interest
Expense of not less than the following:
a. 1.5-to-1.0, from September 30, 2000 through December 31,
2000; and
b. 2.0-to-1.0, after December 31, 2000.
4.1.2. Total Charge Coverage Ratio. A ratio of Pro Forma OCF to
Total Charges of not less than 1.1-to-1.0.
4.1.3. Cash Flow Leverage Ratio. A ratio of Funded Debt to Pro Forma
OCF of not more than the following:
a. 5.0-to-1.0, from July 1, 2000 through December 31, 2000;
and
b. 4.0-to-1.0, from January 1, 2001 through June 30, 2001; and
c. 3.0-to-1.0, from July 1, 2001 through December 31, 2001;
and
d. 2.0-to-1.0, after January 1, 2002.
4.2. Periodic Financial Statements and Compliance Certificates.
4.2.1. Monthly Financial Statements. Within 30 calendar days after
the end of each calendar month (including the last calendar month of each year),
Borrowers must prepare and deliver to Lender a complete set of unaudited
internal monthly financial statements, in form and substance as required by and
acceptable to Administrative Agent. Together with the monthly financial
statements, Administrative Agent and each Lender must also receive a certificate
executed by the chief financial officer or such other senior executive officer
of each Borrower as is acceptable to Administrative Agent (a) stating that the
financial statements fairly present the financial condition of each Borrower as
of the date thereof and for the periods covered thereby and (b) calculating, as
of the end of such monthly period, the then current amount for the Available
Credit Portion, and (c) certifying that as of the date of such certificate there
is not any existing Default or Event of Default.
4.2.2. Quarterly Financial Statements. Within thirty (30) calendar
days after the end of each fiscal quarter (including the fourth fiscal quarter
of each year), Borrowers must prepare and deliver to Administrative Agent and
each Lender unaudited quarterly financial statements, in form and substance as
required by and acceptable to Administrative Agent. Such financial statements
must include a balance sheet and an income statement (with appropriate notes and
schedules). Such financial statements must be prepared in accordance with GAAP
consistently applied (except as approved by Administrative Agent in its sole and
absolute discretion). Together with the quarterly financial statements,
Administrative Agent and each Lender must also receive a
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certificate executed by the chief financial officer or such other senior
executive officer of each Borrower as is acceptable to Administrative Agent (a)
stating that the financial statements fairly present the financial condition of
each Borrower as of the date thereof and for the periods covered thereby, and
(b) calculating, as of the end of such quarterly period, the then-current amount
for the Available Credit Portion, and (c) providing a reconciled calculation
demonstrating compliance with each financial covenant and ratio under Section
4.1 (using the form attached as Exhibit 4.2), and (d) certifying that as of the
date of such certificate there is not any existing Default or Event of Default.
4.2.3. Annual Financial Statements. Within one hundred twenty (120)
calendar days after the close of each fiscal year, Borrowers must prepare and
deliver to Administrative Agent and each Lender a complete set of audited annual
consolidated financial statements (with accompanying notes and consolidating
schedules). Such financial statements (a) must include the types of financial
statements and information required on a quarterly basis under this Section 4.2
as well as a cash flow statement and a reconciliation of consolidated net worth,
and (b) must be prepared in accordance with GAAP consistently applied, and (c)
must be certified without qualification by an independent certified public
accounting firm satisfactory to Administrative Agent. Together with the annual
financial statements, Administrative Agent and each Lender must also receive all
related management letters prepared by such accountants and a certificate signed
by such accountants, (a) stating that the financial statements fairly present
the consolidated financial condition of each Borrower as of the date thereof and
for the periods covered thereby, and (b) providing a reconciled calculation
demonstrating compliance with each financial covenant and ratio under Section
4.1, and (c) calculating, as of the end of such fiscal year, the then-current
amount for the Available Credit Portion, and (d) certifying that as of the date
of such certificate, to the best of such accountant's knowledge (after due
inquiry), there is not any existing Default or Event of Default.
4.3. Other Financial and Specialized Reports.
4.3.1. Financial Forecasts; Operating Budgets. Within 10 Business
Days after receiving, preparing, materially revising or otherwise assembling any
periodic budgets or financial forecasts, Borrowers must deliver a complete copy
thereof to Administrative Agent and each Lender, provided, however, that such
recipients agree to abide by the confidentiality/non-use provisions of Section
10.5 for purposes of complying with federal securities laws and restrictions on
the use of non-public information. In addition, Borrowers must prepare and
deliver to Administrative Agent and each Lender a final annual operating budget
(in form and substance satisfactory to Administrative Agent) at least 30
calendar days prior to the beginning of each fiscal year.
4.3.2. Additional Material Contracts, Licenses and Authorizations.
Each Borrower (a) will notify Administrative Agent in writing within 90 calendar
days after executing or becoming bound by any contract, agreement, License or
other Authorization that should have been listed on Schedule 3.5A, Schedule 3.8
or Schedule 3.9 if it had existed as of the Closing Date, and (b) will
concurrently update Schedule 3.5A, Schedule 3.8 or Schedule 3.9 (as
appropriate).
4.3.3. Tax Returns. Within 10 Business Days after the date that any
Borrower makes any filing with the Internal Revenue Service relating to its
liability for income taxes (or otherwise delivers to any equity owner of such
Borrower annual tax and capital information on Form
-24-
K-1), such Borrowers must deliver a complete copy thereof to Administrative
Agent and each Lender.
4.3.4. SEC Filings and Press Releases. Within 10 Business Days after
the date that any Borrower or any organization that owns or controls at least
50% of any class of equity interests of any Borrower makes any filing with the
Securities Exchange Commission (whether as a registration statement or a filing
on Form 8-K, Form 10-K, Form 10-Q, or otherwise) or issues any press release,
Borrowers must deliver a complete copy thereof to Administrative Agent and each
Lender.
4.3.5. Operating Reports. Within 30 calendar days after the end of
each calendar month, Borrowers must prepare and deliver to Lender reports
containing the following information and data with respect to such month
reported for each Borrower (and division, as applicable), in form and substance
as required by and acceptable to Administrative Agent:
a. the total number of customers at the end of such month;
; and
b. the total number of dial-up customers at the end of such
month; and
c. the total number of dedicated customers at the end of
such month; and
d. the total number of web-hosting and co-location
customers at the end of such month; and
e. the total number of non-classified accounts at the end
of such month; and
f. the average revenue per class of accounts for such
month; and
g. the total number of residential customers at the end of
such month; and
h. the total number of new residential customers and the
total number of discontinued residential customers for
such month; and
i. the total number of commercial customers at the end of
such month; and
j. the total number of new commercial customers and the
total number of discontinued commercial customers for
such month.
4.4. Fiscal Year. Each Borrower will maintain a fiscal year that has a
December 31st year end.
4.5. Books and Records; Maintenance of Properties. Each Borrower will keep
and maintain satisfactory and adequate books and records of account in
accordance with GAAP. Each
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Borrower will also keep, maintain and preserve all of its property and assets in
good order and repair (ordinary wear and tear excepted).
4.6. Existence and Good Standing. Each Borrower will preserve and maintain
(a) its existence as a corporation under the laws of its jurisdiction of
organization, and (b) its good standing in all jurisdictions where it conducts
business, and (c) the validity of all its Authorizations and Licenses required
or otherwise appropriate in the conduct of its businesses.
4.7. Deposit Accounts. Borrowers (a) will maintain commercial deposit
accounts only at federally insured depository institutions rated as "well
capitalized" by their primary federal regulator and (b) will provide
Administrative Agent with written notice of the institution's name and location
and the account name and number with respect to each such account within twenty
(20) calendar days after opening or acquiring any such account. The
institution's name and location and the account name and number for each such
account currently in existence, as well as an approximate current balance (i.e.,
a current balance at any time within the preceding thirty (30) calendar days),
are listed on Schedule 4.7.
4.8. Insurance; Disaster Contingency.
4.8.1. General Insurance Provisions. Each Borrower will keep all of
its property and assets fully covered by insurance with reputable and
financially sound insurance companies (reasonably acceptable to Administrative
Agent). Each Borrower must also maintain such protection against such hazards
and liability (including casualty, liability, fire, flood, business
interruption, earthquake, workmen's compensation, and other material risks to
its property and business), in such amounts and with such deductibles as is
customary in the relevant industry and appropriate under the relevant
circumstances (and, in each instance, as is reasonably acceptable to
Administrative Agent). If any Borrower fails or refuses to obtain or maintain
any such insurance coverage, then Administrative Agent (at its election) may
(but is not obligated to) obtain and maintain such insurance coverage on behalf
of such Borrower, and the premiums and other costs thereof (a) will be included
in the indebtedness hereunder secured by the Collateral and (b) will be due and
payable by such Borrower to Administrative Agent immediately upon demand. Each
such policy for liability insurance must name Administrative Agent as loss
payee, and each such other policy for insurance must name Administrative Agent
as loss payee and as additional insured. Each such policy must also require the
insurer to furnish Administrative Agent with written notice at least 25 calendar
days prior to any termination, cancellation or lapse of coverage and must
provide Administrative Agent with the right (but not the obligation) to cure any
non-payment of premium. Upon Administrative Agent's request, each Borrower (from
time to time) will furnish Administrative Agent with proof of such insurance (in
form and substance acceptable to Administrative Agent) and a copy of the related
policy.
4.8.2. Disaster Recovery and Contingency Program. Each Borrower will
maintain (and at least annually review the sufficiency of) a disaster recovery
and contingency plan that addresses each Borrower's plans for continuing
operations upon the occurrence of a natural disaster or other event that
destroys or prevents the use of or access to such Borrower's primary computer
systems, information databases, software applications, business records and
operations facility and/or such Borrower's switch sites and call centers. Such
contingency plan at all times must
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be in form and substance reasonably acceptable to Administrative Agent. Upon
request, each Borrower will provide Administrative Agent with a current copy of
such plan.
4.9. Loan Purpose. Borrowers will use the proceeds of each Advance
hereunder exclusively as set forth in Section 1.1.3.
4.10. Taxes. Each Borrower will pay and discharge all taxes, assessments
or other governmental charges or levies imposed on it or any of its property or
assets prior to the date upon which any penalty for non-payment or late payment
is incurred, unless (a) the same are then being contested in good faith by
appropriate proceedings diligently prosecuted, and (b) adequate reserves
therefor acceptable to Administrative Agent have been established, and (c)
Administrative Agent has been notified thereof in writing, and (d) the
consequences of such non-payment (in Administrative Agent's reasonable judgment)
will not have a Material Adverse Effect.
4.11. Management Changes. Borrowers will notify Administrative Agent in
writing within thirty (30) calendar days after any change (including any
dismissal or material change in title or status) in the senior management
personnel of any Borrower.
4.12. Litigation and Administrative Proceedings. Each Borrower will notify
Administrative Agent in writing immediately upon the institution or commencement
of any litigation, legal or administrative proceeding, or labor controversy (a)
with a purported amount in controversy in excess of $100,000, or (b) that could
otherwise reasonably be expected to have or cause a Material Adverse Effect.
4.13. Monitoring Compliance; Occurrence of Certain Events. Each Borrower
at all times will maintain (and comply with) commercially reasonable procedures
and systems designed to monitor compliance and to detect instances of
non-compliance with the Loan Documents. Each Borrower will notify Administrative
Agent in writing immediately upon (a) the occurrence of any Default or Event of
Default hereunder, or (b) the occurrence of any Default or Event of Default
under any other Loan Document, or (c) the happening of any event or the
assertion or threat of any claim that could reasonably be expected to have or
cause a Material Adverse Effect.
4.14. Compliance with Laws. Each Borrower will comply in all material
respects (a) with all material laws, rules, regulations and orders (federal,
state, local and otherwise) applicable to its business, and (b) with the
provisions and requirements of all Authorizations. Each Borrower will notify
Administrative Agent immediately in detail of any actual or alleged material
failure to comply with or violation of any such laws, rules, regulations or
orders, or under the terms of any of such Authorizations, or of the occurrence
or existence of any facts or circumstances that with the passage of time, the
giving of notice or otherwise could create such a failure to comply or violation
or could reasonably be expected to occasion the termination of any of such
Authorization. Such "material" laws, rules, regulations and orders shall
include, as applicable, (i) the Federal Communications Act and each State
Communications Act and the rules, regulations, policies, procedures and orders
of the FCC and each such State PUC, and (ii) the Environmental Control Statutes,
and (iii) ERISA.
4.15. Further Actions.
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4.15.1. Additional Collateral. Each Borrower will execute, deliver
and record (or, as appropriate, cause the execution, delivery and recordation)
at any time upon Administrative Agent's request and in form and substance
reasonably satisfactory to Administrative Agent, any of the following
instruments in favor of Administrative Agent as additional Collateral hereunder:
(a) mortgages, deeds of trust and/or assignments on or of any real or personal
property owned, leased or licensed by it, and (b) certificates of title
encumbrances against any of its titled vehicles, and (c) any other like
assignments or agreements specifically covering any of its properties or assets
(including assignments of any patents, trademarks, copyrights, databases, trade
secrets and other forms of intellectual property and deposit account control
agreements), and (d) any financing or continuation statements requested by
Administrative Agent.
4.15.2. Further Assurances. From time to time, each Borrower will
execute and deliver (or will cause to be executed and delivered) such
supplements, amendments, modifications to and/or replacements of the Loan
Documents and such further instruments as may be reasonably required to
effectuate the intention of the parties to (or to otherwise facilitate the
performance of) the Loan Documents.
4.15.3. Estoppel Certificates. Upon Administrative Agent's request,
each Borrower will execute, acknowledge and deliver (or, as appropriate, cause
the execution, acknowledgment and delivery) to such Persons as Administrative
Agent may request a statement in writing certifying as follows (to the best of
its knowledge, after diligent inquiry): (a) that the Loan Documents (as amended,
if applicable) are unmodified and in full force and effect, and (b) that the
payments under the Loan Documents required to be paid by Borrowers have been
paid, and (c) the then unpaid principal balance of Facilities hereunder, and (d)
whether or not any Default is then occurring under any of the Loan Documents
and, if so, specifying each such Default of which the signer may have knowledge,
and (e) whether or not any Borrower is then entitled to assert any claims,
defenses or causes of action that would impose any liability upon Administrative
Agent or any Lender or that would otherwise challenge the enforceability any
Loan Document or any provision thereof (including, the existence of any
so-called "Lender Liability" claims or defenses). Unless such Borrower otherwise
consents (which consent will not be unreasonably withheld, delayed or
conditioned), Administrative Agent must give such Borrower at least ten (10)
Business Days to complete and deliver any such certificate. Each Borrower
understands and agrees that any such certificate delivered pursuant to this
Section may be relied upon by Administrative Agent, each Lender, and, if
different, by the recipient thereof.
4.15.4. Waivers and Consents. At any time upon Administrative
Agent's request, each Borrower will use its best efforts to obtain and deliver
(in form and substance reasonably satisfactory to Administrative Agent) a waiver
or consent to the assignment to Administrative Agent of any contract, lease,
Authorization or other agreement to which it is a party.
4.15.5. Access and Audits. Administrative Agent and each Lender
(from time to time at its discretion) may conduct audits of the Collateral and
of the performance and operations of any Borrower. Each Borrower (upon
Administrative Agent's request from time to time) will use its best efforts to
provide Administrative Agent and each Lender (and their representatives and
agents) with reasonable access to such Borrower's management personnel, books
and records, property and operations (including its financial records), whether
such property, books and records are in the possession of such Borrower or are
in the possession of a third party (including the possession of
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such Borrower's Affiliates, accountants and legal counsel). In connection with
any such audit, Administrative Agent and each Lender may also make notes and
copies of (and extracts from) relevant records.
4.15.6. Attendance at Board of Directors Meetings. Any Lender (from
time to time at its discretion and at its sole cost and expense) may attend any
or all meetings of the board of directors of any Borrower (including the
meetings of any committees or sub-committees thereof) provided, however, that
such recipients agree to abide by the confidentiality/non-use provisions of
Section 10.5 for purposes of complying with federal securities laws and
restrictions on the use of non-public information. Borrowers will provide
Administrative Agent with written notice thereof at least ten (10) Business Days
prior to each such meeting and also will provide Administrative Agent with a
copy of all written communications, minutes and materials distributed in
connection therewith. Notwithstanding the foregoing, at the request of
Borrowers, representatives of such Lenders will temporarily leave a meeting of
the board of directors if such action is necessary to preserve the Borrowers'
attorney-client privilege with respect to such meetings or the information
disseminated therein.
4.16. Costs and Expenses. Borrowers will pay or reimburse Administrative
Agent and each Lender for all fees and costs (including all reasonable
attorneys' fees and disbursements and the reasonable fees and disbursements of
in-house counsel and documentation personnel) that Administrative Agent or any
Lender may pay or incur in connection with (a) the preparation, negotiation and
review of the Loan Documents, any waivers, consents and amendments in connection
herewith or therewith and all other documentation related hereto or thereto, and
(b) the funding of the indebtedness or any Advance hereunder, and (c) the
initial and continuing perfection or protection of Administrative Agent's or any
Lender's interest in any of the Collateral, and (d) the collection or
enforcement of any of the Loan Documents, and (e) the periodic examination and
auditing of the Collateral and the books, records and operations of Borrowers,
and (f) Administrative Agent's release of its interests in the Collateral in
accordance with the terms of the Loan Documents. Borrowers will pay any and all
recordation taxes or other fees due upon the filing of the financing statements
or documents of similar effect required to be filed under the Loan Documents,
and will provide Administrative Agent with a copy of any receipt or other
evidence reflecting such payments. All obligations provided for in this Section
shall survive the termination of this Agreement and/or the repayment of
indebtedness hereunder.
4.17. Other Information. Each Borrower will provide Administrative Agent
with any other documents and information (financial or otherwise) reasonably
requested by Administrative Agent or its counsel from time to time.
4.18. Additional FCC and Other Regulatory Affirmative Covenants. Without
limiting the generality of the foregoing affirmative covenants, each Borrower
further covenants and agrees as follows:
4.18.1. Service Interruption. Each Borrower will notify
Administrative Agent in writing within 36 hours after any period during which
the transmission at any internet data center or call center owned or used by any
Borrower is interrupted or curtailed for an aggregate of 24 hours or more
(whether or not consecutive) during any period of 48 consecutive hours. Each
Borrower will
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make every effort to restore such transmission as soon as possible to the level
that was obtained prior to such interruption or curtailment.
4.18.2. Correspondence, Orders and Filings. Within 5 Business Days
after mailing or receipt (as applicable), each Borrower will provide
Administrative Agent with a copy of each significant or material correspondence,
application or filing with, to or from the FCC or any State PUC. Within 5
Business Days after the release of any order of the FCC or any State PUC (a)
designating or proposing to designate an application by any Borrower to the FCC
or a State PUC for an evidentiary hearing, or designating or proposing to
designate for an evidentiary hearing the possible non-renewal, revocation or
modification of any License or Authorization issued to it by the FCC or a State
PUC, or (b) imposing a fine, penalty or other forfeiture upon any Borrower, or
(c) initiating any other enforcement action against any Borrower, or as soon as
any Borrower ascertains that any such order will be forthcoming from the FCC or
any State PUC, then such Borrower must notify Administrative Agent of the same
and, if any such order has been issued by the FCC or a State PUC, must provide a
copy of such order to Administrative Agent.
4.19. Billing System Integration. On or before June 30, 2000 Borrowers
shall fully integrate the billing systems for all Borrowers into one
consolidated and comprehensive billing system. Borrowers shall provide
Administrative Agent satisfactory evidence of compliance with this Section 4.19.
4.20. Post-Closing Items. Notwithstanding anything to the contrary
contained in this Agreement or the other Loan Documents, the Borrowers shall
deliver the following documents, agreements and certificates, each duly
executed, in form and substance satisfactory to Administrative Agent and, when
applicable, recorded or filed in the appropriate public office, within the time
periods set forth below:
a. A mortgage or deed of trust, as appropriate, in a form provided
by the Lenders, covering the those certain premises with an address at 000
Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, as acquired by the Borrowers in the
Telecon Acquisition within 20 Calendar Days of the closing date of the Telecon
Acquisition.
b. Amended articles of incorporation and executed UCC-1 financing
statements with respect to the surviving companies in the Telecon Acquisition,
whose names shall be "Telecon Communications Corp." and "Telesupport, Inc."
within 10 calendar days of the closing date of the Telecon Acquisition.
x. Xxxx releases on all companies acquired pursuant to, or certain
assets of which are acquired pursuant to, the Additional Acquisitions,
including, but not limited to, Supernet, Inc. and I-Conn, Inc., on the closing
date, from time to time, of the Additional Acquisitions.
x. Xxxx releases on Ulsternet, Inc. and Webway, LLC within 30
calendar days of the Closing Date. However, Borrowers will use their best
efforts to obtain such lien releases at the earliest possible date.
e. Copies of the referenced and scheduled leases for the Landlord
Estoppel and Consent Agreements on the premises occupied by (i)
XxxxxxxXxxxxx.xxx, Inc.; (ii) Borg Internet
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Services, Inc.; (iii) Caravela Software, Inc.; and (iv) Ulsternet, Inc. within
10 calendar days of the Closing Date.
f. An Estoppel and Consent Agreement in a form provided by the
Lenders from Cisco Systems Capital Corporation regarding the Master Lease
Agreement #2581 entered into by Global 2000 Communications, Inc. within 30 days
of the Closing Date.
ARTICLE 5: NEGATIVE COVENANTS
Each Borrower (jointly and severally) hereby covenants and agrees that, so
long as any indebtedness remains outstanding hereunder, each Borrower will
comply with the following negative covenants (unless Required Lenders through
Administrative Agent otherwise consent in writing, which consent will not be
unreasonably withheld while no Default is occurring):
5.1. Capital Expenditures. Borrowers (on a consolidated basis) will not
incur (a) Capital Expenditures in connection with the design and construction of
Internet data centers in their fiscal year ending December 31, 2000 in excess of
$4,000,000 and (b) Capital Expenditures for other items in their fiscal year
ending December 31, 2000 in excess of $2,500,000; and, (c) Capital Expenditures
in any fiscal year thereafter in excess of $2,500,000.
5.2. Additional Indebtedness. No Borrower will borrow any monies or
create, incur, assume or permit to exist any additional indebtedness,
obligations or liabilities (including monitory obligations evidenced by a
promissory note and monetary obligations under non-compete and consulting
arrangements) except as follows (collectively, the "Permitted Indebtedness"):
a. Borrowings from Lenders hereunder; and ---
b. Trade indebtedness, if and to the extent (i) such indebtedness is
incurred in the normal and ordinary course of business for value received and
(ii) such indebtedness (to the extent it exceeds $10,000 to any single vendor)
is paid on a current basis or is less than 60 calendar days past due; and
c. Indebtedness and obligations incurred to purchase fixed or
capital assets, consistent with the restrictions in Section 5.1 and Section 5.5,
provided, however, that (1) the aggregate amount of such asset acquisition
indebtedness outstanding at any time (together with the aggregate amount of
Capital Lease indebtedness outstanding under Subsection 5.2.d) may not exceed
$3,000,000, and (2) such indebtedness must be immediately included in the
calculation of Funded Debt, and (3) such fixed or capital assets being purchased
may not constitute (a) customized application software or systems integration
software unless Borrowers have furnished Administrative Agent with an estoppel
and consent from the holder of the Lien in form and substance satisfactory to
Lenders, or (b) equity interests in or substantially all of the assets of
another enterprise other than Permitted Investments, or (c) any other asset the
loss of which could reasonably be expected to have or cause a Material Adverse
Effect unless Borrowers have furnished Administrative Agent with an estoppel and
consent from the holder of the Lien in form and substance satisfactory to
Lenders, and (4) if such asset acquisition indebtedness is secured, and if the
agreement giving rise to such
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indebtedness is a Material Contract, Borrower shall have furnished
Administrative Agent with an estoppel and consent from the holder of the Lien in
form and substance satisfactory to Lenders; and
d. Indebtedness and obligations incurred under Capital Leases,
consistent with the restrictions in Section 5.1 and Section 5.5, provided,
however, that (1) the aggregate amount of such Capital Lease indebtedness
outstanding at any time (together with the aggregate amount of asset acquisition
indebtedness outstanding under Subsection 5.2.c) may not exceed $3,000,000, and
(2) such indebtedness must be immediately included in the calculation of Funded
Debt, and (3) such fixed or capital assets being leased may not constitute (a)
customized application software or systems integration software unless Borrowers
have furnished Administrative Agent with an estoppel and consent from the lessor
in form and substance satisfactory to Lenders, or (b) any asset the loss of
which could reasonably be expected to have or cause a Material Adverse Effect
unless Borrowers have furnished Administrative Agent with an estoppel and
consent from the lessor in form and substance satisfactory to Lenders, and (4)
if the Capital Lease is a Material Contract, Borrower shall have furnished
Administrative Agent with an estoppel and consent from the lessor in form and
substance satisfactory to Lenders; and
e. Indebtedness in favor of another Borrower if and to the extent
permitted under Section 5.4(b); and
f. Subordinated Indebtedness if and to the extent permitted under
Section 5.11; and
g. Such indebtedness listed on Schedule 5.2 with the prior written
consent of Lenders through Administrative Agent (which consent will not be
unreasonably withheld while no Default is occurring). Unless Lenders through
Administrative Agent otherwise expressly consent in writing (or unless otherwise
specified on Schedule 5.2), all indebtedness listed on Schedule 5.2 must be
included in the calculation of Funded Debt.
5.3. Guaranties. No Borrower will guarantee, assume or otherwise be or
agree to become liable in any way, either directly or indirectly, for any
additional indebtedness or liability of any other Person, except as follows
(collectively, the "Permitted Guaranties"): (a) in favor of Lenders or
Administrative Agent, or (b) to endorse checks, drafts and negotiable
instruments for collection in the ordinary course of business, or (c) as listed
on Schedule 5.3 with the consent of Lenders, or (d) to the extent that Lenders
through Administrative Agent otherwise consent in writing.
5.4. Loans. No Borrower will make any loans or advances to any other
Person, except as follows (collectively, the "Permitted Loans"): (a) loans to
employees that do not exceed $25,000 to any individual employee and do not at
any time in the aggregate outstanding exceed $150,000 among all such loans to
all such employees, and (b) as listed on Schedule 5.4 with the consent of
Lenders through Administrative Agent, and (c) demand loans to other Borrowers
that are appropriately reflected on each Borrower's financial records and
evidenced by a written promissory note assigned to Administrative Agent as
additional Collateral.
5.5. Liens and Encumbrances; Negative Pledge. No Borrower will create,
permit or suffer the creation or existence of any Liens on any of its property
or assets (real or personal, tangible or intangible), except as follows
(collectively, the "Permitted Liens"):
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a. Liens in favor of Administrative Agent as security for the
Obligations under the Loan Documents; and
b. Liens arising in favor of sellers or lessors for indebtedness and
obligations incurred to purchase or lease fixed or capital assets as permitted
under Section 5.2.c or Section 5.2.d, provided, that (1) such Liens secure only
the indebtedness and obligations created thereunder (but not any related
monetary obligations under non-compete and consulting arrangements) and are
limited to the assets purchased or leased pursuant thereto, and (2) such fixed
or capital assets do not constitute (a) customized application software or
systems integration software unless Borrowers have furnished Administrative
Agent with an estoppel and consent from the holder of such Lien in form and
substance satisfactory to Lenders, or (b) equity interests in or substantially
all of the assets of another enterprise, or (c) any other asset the loss of
which could reasonably be expected to have or cause a Material Adverse Effect
unless Borrowers have furnished Administrative Agent with an estoppel and
consent from the holder of such Lien in form and substance satisfactory to
Lenders, and, (3) if the agreement giving rise to such Lien constitutes a
Material Contract, Borrower shall have furnished Administrative Agent with an
estoppel and consent from the holder of such Lien in form and substance
satisfactory to Lenders; and
c. Liens for taxes, assessments or other governmental charges
(federal, state or local) that are not yet delinquent or that are then being
currently contested in good faith by appropriate proceedings diligently
prosecuted, provided, however, that (1) the existence of such Liens and
challenge of such charges must have been fully disclosed to Administrative
Agent, and (2) adequate reserves therefor in accordance with GAAP must have been
established, and (3) such Liens (in Administrative Agent's reasonable opinion)
could not reasonably be expected to have or cause a Material Adverse Effect; and
d. Deposits in the ordinary course of business to secure obligations
under workmen's compensation, unemployment insurance or social security laws or
similar legislation; and
e. Deposits to secure performance or payment bonds, bids, tenders,
contracts, leases, franchises or public and statutory obligations required in
the ordinary course of business; and
f. Deposits to secure surety, appeal or custom bonds required in the
ordinary course of business; and
g. Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not past due or
for sums being currently contested in good faith by appropriate proceedings
diligently prosecuted, provided, however, that (1) the existence of such Liens
and challenge of such sums allegedly due must have been fully disclosed to
Administrative Agent, and (2) adequate reserves therefor in accordance with GAAP
must have been established, and (3) such Liens (in Administrative Agent's
reasonable opinion) could not reasonably be expected to have or cause a Material
Adverse Effect; and
h. Easements, rights-of-way, restrictions and other similar
encumbrances on real property of a Borrower that, independently and in the
aggregate, do not (1) materially interfere with the occupation, use or enjoyment
by such Borrower of the property or assets encumbered thereby in the normal
course of business or (2) materially impair the value of the property subject
thereto; and
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i. Liens listed on Schedule 5.5 with the consent of Required Lenders
through Administrative Agent (which consent will not be unreasonably withheld
while no Default is occurring).
No Borrower will similarly covenant to or in favor of any other Person that it
will not create, permit or suffer the creation or existence of any Liens on any
of its property or assets. In addition, no Borrower will purchase or otherwise
acquire any additional assets (including any leasehold interest therefor) unless
Administrative Agent's interest in such property either (a) is already covered
and perfected pursuant to an existing and effective UCC-1 financing statement,
fixture filing, mortgage and/or leasehold mortgage (as appropriate) in favor of
Administrative Agent or (b) otherwise becomes properly perfected within 5
calendar days after any such acquisition by such Borrower's filing (at its
expense) all necessary UCC-1 financing statements, fixture filings, mortgages
and/or leasehold mortgages (as appropriate, and in form and substance reasonably
acceptable to Administrative Agent). Moreover, no Borrower will establish or
maintain any "securities account" with any "securities intermediary" (as such
terms are defined in Article 8 of the UCC) except as permitted under Section
5.7.
5.6. Transfer of Assets. No Borrower will sell, lease, license, transfer
or otherwise dispose of all or substantially all of its assets. In addition, no
Borrower will sell, lease, license, transfer or otherwise dispose of any of its
assets other than as follows (collectively, the "Permitted Transfers"): (a)
pursuant to a transaction with an unrelated third party in the normal and
ordinary course of business for value received and otherwise in accordance with
the terms hereof (including Section 1.1.6.5.c) provided that proceeds received
by the Borrower for such transactions shall, singly or in the aggregate, be less
than $250,000, or (b) with respect to obsolete or replaced equipment no longer
useful in the operation of any Borrower's business, pursuant to a reasonable and
customary transaction with an unrelated third party and otherwise in accordance
with the terms hereof, and (c) pursuant to a reasonable and customary
transaction with another Borrower that is appropriately reflected on each
Borrower's financial records.
5.7. Acquisitions and Investments. No Borrower will purchase or otherwise
acquire (including by way of share exchange) any part or amount of the equity
ownership or assets of, or make any investments in, any other corporation,
partnership, limited liability company or other venture or enterprise.
Notwithstanding the foregoing, Borrowers may acquire or invest in the following
(collectively, the "Permitted Investments"):
a. Government and agency securities backed by the full faith and
credit of the U.S. federal government; and
b. Commercial paper of a U.S. domestic issuer rated A-1+ or A-1 by
Standard & Poor's Ratings Group or P-1 by Xxxxx'x Investor Services, Inc. and
maturing not more than 90 calendar days from the date of acquisition thereof;
and
c. Certificates of deposit (maturing within 12 calendar months after
the date of issuance), time deposits, other deposits and bankers' acceptances
issued by or established with U.S. federally insured commercial banks rated as
"well capitalized" by their primary federal regulators, and having unimpaired
capital and unimpaired surplus (collectively) of at least $250 million, and
whose commercial paper (or commercial paper that is supported by such bank's
letter of credit or
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commitment to lend) is rated as A-1+ or A-1 by Standard & Poor's Ratings Group
or P-1 by Xxxxx'x Investor Services, Inc.; and
d. Assets acquired pursuant to transactions permitted under Section
5.1 or Section 5.2; and
e. Inventory sold in the ordinary course of business for value
received; and
f. Equity interests in other Borrowers; and
g. Investments listed on Schedule 5.7 with the consent of Required
Lenders through Administrative Agent (which consent will not be unreasonably
withheld while no Default is occurring).
No Borrower will establish or maintain any "securities account" with any
"securities intermediary" (as such terms are defined in Article 8 of the UCC),
unless a control agreement acceptable in form and substance to Administrative
Agent is first executed by such "securities intermediary" securing
Administrative Agent's first priority interest and rights in and to all
"financial assets" and "security entitlements" associated with such "securities
account."
5.8. New Ventures; Mergers. No Borrower will (a) enter into any new
business activities or ventures not directly related to its current business, or
(b) merge or consolidate with or into any other corporation, partnership,
limited liability company or other organization, or (c) create or acquire (or
cause or permit the creation or acquisition of) any Subsidiary or Affiliate
(except the hiring of officers and directors). Notwithstanding the foregoing,
Borrowers may create or acquire (or cause or permit the creation or acquisition
of) one or more wholly-owned Subsidiaries provided that (1) each such Subsidiary
(at Required Lenders' sole discretion) becomes a "Borrower," "Guarantor" and/or
"Obligor" under the Loan Documents, and (2) a first priority security interest
in and pledge of 100% of the assets and equity of each such Subsidiary is
perfected in favor of Administrative Agent as additional Collateral under the
Loan Documents (except as otherwise permitted under Section 5.5).
5.9. Transactions with Affiliates. No Borrower will enter into any
transaction or agreement with any Subsidiary, Affiliate or other related
enterprise except as follows: (a) reasonable and customary compensation
arrangements in the ordinary course of business with its officers and directors,
and (b) guaranties (if any) to the extent permitted by Section 5.3, and (c)
employee loans (if any) to the extent permitted under Section 5.4, and (d)
reasonable and customary asset transfers among Borrowers (if any) to the extent
permitted under Section 5.6, and (e) reasonable dividends and distributions (if
any) to the extent permitted by Section 5.10, and (f) reasonable and customary
management fees (if any) to the extent permitted under Section 5.12, and (g)
transactions in the ordinary course of business between Borrowers.
5.10. Distributions or Dividends. No Borrower will declare or make
(directly or indirectly) any payment or distribution with respect to, or incur
any liability for the purchase, acquisition, redemption or retirement of, any of
its equity interests (including warrants therefor) or as a dividend, return of
capital or other payment or distribution of any kind to any holder of any such
equity interest. Notwithstanding the foregoing, so long as no Default then
exists under the Loan
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Documents or would otherwise be caused by the payment of such dividend, then any
Borrower may declare and distribute reasonable and lawful dividends to any of
its owners that are also a Borrower. Notwithstanding the foregoing,
BiznessOnline will make all payments and distributions to the Lenders entitled
thereto required under Section 1.7.1.2 or under or in connection with the
Warrant Agreement, the Warrants and/or any related warrant shares.
5.11. Payment of Subordinated Indebtedness. No Borrower will incur or make
any payments on Subordinated Indebtedness except as subsequently permitted by
this Section or by a separate intercreditor or subordination agreement executed
between such other creditor and Administrative Agent. Notwithstanding the
foregoing, if any Subordinated Indebtedness is subsequently authorized by
Lenders and if any Default occurs under the Loan Documents, then no Borrower
will make any further payments in connection with its Subordinated Indebtedness
unless and until such Default has been waived or cured to Administrative Agent's
and Lenders' satisfaction.
5.12. Payment of Management Fees and Other Compensation. No Borrower will
pay any funds or otherwise incur or accrue any liabilities for any management or
related services except (a) reasonable and customary compensation to bona fide
resident employees of such Borrower and (b) as otherwise permitted by this
Section.
5.13. Issuance of Additional Equity. No Borrower other than BiznessOnline
will permit the issuance, reissuance, conversion or exercise of any equity
interests (common stock, preferred stock, partnership interests, member
interests or otherwise) or any options, warrants, convertible securities or
other rights to purchase such beneficial or equity interest. Notwithstanding the
foregoing, a Borrower may issue additional equity interests provided that: (a)
such Borrower has provided written notice thereof to Administrative Agent at
least 15 Business Days prior to such issuance (which notice must at least
describe the type and amount of equity interests being purchased, the
consideration to be received by such Borrower in exchange for such issuance, and
the identity of the purchaser), and (b) such equity interests are pledged to
Administrative Agent (with a first lien priority) as additional Collateral
hereunder at the time of issuance thereof using documentation that is in form
and substance reasonably acceptable to Administrative Agent, and (c) the
proceeds thereof are utilized in a manner in compliance with Section 1.1.6.5.c,
and (d) no Default or Event of Default then exists under the Loan Documents or
would otherwise result from the issuance of such equity interest (including a
Default under the change in control restrictions set forth in Section 7.1.8).
5.14. Removal of Assets. No Borrower will remove or permit the removal of
any asset or group of assets (with a collective fair market value exceeding
$10,000) to a jurisdiction or a county in which no financing statement on Form
UCC-1 has been filed naming Administrative Agent as "secured party" with respect
to such assets. Notwithstanding the foregoing, a Borrower may remove the
following types of assets under the following conditions: (a) temporary removal
of equipment for repair or replacement provided that Administrative Agent has
received prior written notice thereof indicating the type of equipment, its
approximate fair market value, the destination location and an estimate of the
length of time that such equipment will be removed from the relevant
jurisdiction, and (b) booths, displays, marketing materials and related
accompanying equipment of a Borrower being used temporarily in connection with
marketing such Borrower's business at trade shows or otherwise (provided that
the aggregate fair market value thereof does not exceed $25,000), and (c)
portable computers and related accompanying equipment being used by the
officers, employees and independent representatives of a Borrower in connection
with accomplishing such
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Borrower's business activities at home offices or otherwise (provided that the
aggregate fair market value thereof does not exceed $25,000). Moreover, no
Borrower will move the location of its chief executive office (or change its
official mailing address) without providing Administrative Agent with prior
written notice thereof.
5.15. Modifications to Organic Documents. No Borrower will (a) amend or
otherwise modify any of its Organic Documents, or (b) change its official name,
its operating names or the names under which it executes contracts and conducts
business.
5.16. Terms of and Modifications to Material Relationships. No Borrower
will (and will not permit any other party to) cancel, terminate, amend, modify
or otherwise alter (a) any Subordinated Indebtedness, or (b) any agreement
regarding the provision of management services to any Borrower, or (c) any
Material Contract listed (or contract that should be listed) on Schedule 3.8. In
addition, each Borrower will use commercially reasonable efforts to ensure that
no Material Contract entered into by any Borrower after the Closing Date
(including the renewal or extension of any Material Contract existing as of the
Closing Date) will restrict any Borrower's ability to collaterally assign or
encumber such Material Contract in favor of Administrative Agent.
5.17. Margin Stock Restrictions; Other Federal Statutes. No Borrower will
use any of the proceeds hereunder, directly or indirectly, to purchase or carry,
or to reduce or retire any indebtedness that was originally incurred to purchase
or carry, any Margin Stock or for any other purpose that might constitute the
transactions contemplated hereby as a "Purpose Credit" within the meaning of the
FRB's Margin Regulations. In addition, no Borrower will engage as its principal
business in the extension of credit for purchasing or carrying Margin Stock. No
Borrower will cause or permit any Loan Document to violate any other regulation
of the FRB or the SEC or any provision of the Securities Act of 1933, the
Securities Exchange Act of 1934, the Investment Company Act of 1940 or the Small
Business Investment Act of 1958, each as amended, or any rules or regulations
promulgated under any of such statutes.
5.18. Holding Company Structure. BiznessOnline shall not conduct any
business operations (other than as a holding company of the other Borrowers).
BiznessOnline shall not own, hold or lease any operating assets, excluding the
leasing of its corporate headquarters and related office furniture and office
equipment and the employment of senior management and administrative staff.
ARTICLE 6: ADDITIONAL COLLATERAL AND RIGHT OF SET OFF
6.1. Additional Collateral. As additional collateral for the payment of
any and all indebtedness and obligations of each Borrower to Administrative
Agent or any Lender (whether matured or unmatured, and whether now existing or
hereafter incurred or created hereunder or otherwise), each Borrower hereby
grants Administrative Agent and each Lender a security interest in and a lien
upon all funds, balances and other property of any kind of such Borrower, or in
which such Borrower has any interest (limited to the interest of such Borrower
therein), now or hereafter in the possession, custody or control of
Administrative Agent or such Lender or any Affiliate of Administrative Agent or
such Lender.
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6.2. Right of Set-Off. Administrative Agent and each Lender are hereby
authorized at any time and from time to time during the existence of an Event of
Default hereunder (unless expressly prohibited by applicable law) to set-off and
apply any and all deposits (general or special, time or demand, provisional or
final) and other indebtedness at any time held or owing by Administrative Agent
or any Lender (or any of their Affiliates) to or for the credit or the account
of any Borrower against any and all of the indebtedness and monetary obligations
of any Borrower now or hereafter existing under the Loan Documents or any other
evidence of indebtedness originated, acquired or otherwise held by
Administrative Agent or any Lender, irrespective of whether Administrative Agent
or such Lender shall have made any demand under the Loan Documents or other
indebtedness and although such obligations may be unmatured. Administrative
Agent or such Lender agrees to notify Borrowers within a commercially reasonable
time after any such set-off and application made by Administrative Agent or such
Lender; provided, however, that the failure to give such notice shall not in any
way affect the validity of such set-off and application.
6.3. Additional Rights. The rights of Administrative Agent and each Lender
under this Article 6 are in addition to the other rights and remedies (including
other rights of set-off) that Administrative Agent and Lenders may have by
contract, at law, or otherwise.
ARTICLE 7: DEFAULT AND REMEDIES
7.1. Events of Default. Each of the following events separately
constitutes an independent Event of Default hereunder:
7.1.1. Payment Obligations. If any payment of principal, interest,
fees, expenses, indemnities or other sums payable to Administrative Agent or any
Lender under any Loan Document (including under any Note) is not received by
Administrative Agent in immediately available funds on the date such payment is
due and payable and such failure to receive payment in immediately available
funds continues for a period of five (5) Business Days after the due date
therefor.
7.1.2. Representations and Warranties. If any representation,
warranty or other statement made in any Loan Document, or in any written report,
schedule, exhibit, certificate, agreement, or other document given by or on
behalf of any Borrower or any other Obligor (or otherwise furnished in
connection herewith) when made was misleading or incorrect in any material
respect.
7.1.3. Financial Covenants. If Borrowers default in or fail to
observe at any time any of the covenants set forth in Section 4.1.
7.1.4. Other Covenants in Loan Documents. If any Borrower or any
other Obligor defaults in the full and timely performance when due of any other
covenant or agreement contained in any Loan Document (or in any other document
or agreement now or hereafter executed or delivered in connection herewith), and
such default remains uncured for a period of ten (10) Business Days after the
earlier of the date that Administrative Agent or any Lender notifies any
Borrower thereof or the date that any Borrower otherwise acquires knowledge or
should have acquired knowledge thereof.
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7.1.5. Default Under Other Agreements with Administrative Agent or
Lenders. If any event of default (as described or defined therein, which term
shall include any notice and cure periods provided therein) occurs or exists
under the provisions of any other credit agreement, security agreement,
mortgage, deed of trust, indenture, debenture, cash management or account
agreement, contract, lease or other agreement between any Borrower, any
Affiliate of any Borrower or any other Obligor and Administrative Agent or any
Lender (or any Affiliate of Administrative Agent or any Lender), unless such
default is waived by Administrative Agent or such Lender or cured to
Administrative Agent's or such Lender's satisfaction.
7.1.6. Default Under Material Agreements with Other Parties. (a) If
any Borrower fails or refuses to make any required payment (whether principal,
interest or otherwise) with respect to any Funded Debt (or with respect to any
guaranty or reimbursement obligation of any such indebtedness) prior to the
expiration of any applicable grace period with respect to such payment, or (b)
if any such indebtedness for borrowed money is accelerated prior to its express
maturity as a result of any default thereunder, or (c) if any event of default
(as described or defined therein, which term shall include any notice and cure
periods provided therein) occurs or exists under the provisions of any Material
Contract listed on Schedule 3.8 (or a contract that should be listed on Schedule
3.8 under the terms hereof).
7.1.7. Security Interest. If the security interest or lien in any of
the Collateral (with a fair market value exceeding collectively $25,000), other
than Collateral consisting of equity ownership interest in Borrowers or in
subsidiaries or other securities of Borrowers (for which there is no permissible
threshold for non-compliance), at any time does not constitute a legal, valid
and enforceable security interest or lien in favor of Administrative Agent.
Notwithstanding the foregoing, the occurrence of such an event involving
Collateral (other than Collateral consisting of equity ownership interests or
other securities) with a fair market value of less than $100,000 will not
constitute an Event of Default hereunder if and so long as (1) Lender was
notified of such Default in writing within 10 Business Days after the occurrence
thereof, and (2) such Lien is subsequently created and/or perfected in an legal,
valid and enforceable manner to Lender's satisfaction (and without in any way
adversely affecting Lender's rights in or to such Collateral) within 30 calendar
days after such event occurs.
7.1.8. Change of Control.
a. If there occurs any direct or indirect change in the
ownership (i.e. any change exceeding 50% of the voting or beneficial interest
for such structure as of the Closing Date) or in the control of BiznessOnline.
b. If BiznessOnline ceases to own and control 100% of each
class of securities of each other Borrower.
c. If Xxxx Xxxxx ceases to hold a senior management position
with active involvement in the management and operations of each Borrower,
unless (1) such event is by reason of his or her death or disability and (2)
replacement management arrangements satisfactory to Required Lenders (in their
sole and absolute discretion) are made within 60 calendar days after such death
or within 120 calendar days after the commencement of such period of disability.
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7.1.9. Government Action.
a. If custody or control of any substantial part of the
property of any Borrower is assumed by any governmental agency or any court of
competent jurisdiction at the instance of any governmental agency.
b. If any governmental regulatory authority or judicial body
makes any other final non-appealable determination that (in Required Lenders'
reasonable judgment) could reasonably be expected to have or cause a Material
Adverse Effect.
7.1.10. Insolvency. If any Borrower or any holder of equity
interests of any Borrower other than BiznessOnline (whether as common stock,
preferred stock, partnership interest, membership interest or otherwise) (a)
becomes insolvent, bankrupt or generally fails to pay its, his or her debts as
such debts become due; or (b) is adjudicated insolvent or bankrupt in any
proceeding; or (c) admits in writing an inability to pay its, his or her debts;
or (d) comes under the authority of a custodian, receiver or trustee (or one is
appointed for substantially all of its, his or her property); or (e) makes an
assignment for the benefit of creditors; or (f) has commenced against it, him or
her any proceedings under any law related to bankruptcy, insolvency,
liquidation, dissolution or the reorganization, readjustment or release of
debtors that is either not contested or if contested is not dismissed or stayed
within thirty (30) calendar days after the commencement thereof; or (g)
commences or institutes any proceedings under any law related to bankruptcy,
insolvency, liquidation, dissolution or the reorganization, readjustment or
release of debtors; or (h) calls a meeting of creditors with a view to arranging
a composition or adjustment of debt; or (i) by any act or failure to act that
indicates consent to, approval of or acquiescence in any of the foregoing.
7.1.11. Additional Liabilities. If any judgment, writ, warrant,
attachment or execution or similar process that calls for payment or presents
liability in excess of $250,000 is rendered, issued or levied against any
Borrower or any of its properties or assets and such liability is not paid,
waived, stayed, vacated, discharged, settled, satisfied or fully bonded within
thirty (30) calendar days after it is rendered, issued or levied.
7.1.12. Business Interruption. If the operations of any internet
backbone connection used, owned or controlled by any Borrower is interrupted or
curtailed at any time for a period in excess of 48 hours (whether or not
consecutive) during any period of 10 consecutive calendar days.
7.1.13. FCC and Other Regulatory-Action Defaults. In addition to the
events described in Section 7.1.9, (a) if any Official Body terminates, revokes
or substantially and adversely modifies any material Authorization of any
Borrower (or any Affiliate thereof), or (b) if any Official Body commences an
action or proceeding seeking the termination, suspension, revocation,
non-renewal or substantial and adverse modification of any material
Authorization, or (c) if any material Authorization expires by its terms and is
not renewed in a timely manner, or any material agreement which is necessary to
the operation of any broadcast facility, transmission site or switch facility
expires or is revoked or terminated and is not replaced by a comparable
substitute or a substitute reasonably acceptable to Required Lenders. For
purposes of this Section 7.1.13, a "material" Authorization is (1) any License
or other Authorization issued by the FCC or any State PUC, and (2) any other
License or other Authorization (alone or in conjunction with other Licenses and
Authorizations then subject to any of the circumstances described in this
Section) the loss of which
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(in Required Lenders' reasonable judgment) could reasonably be expected to have
or cause a Material Adverse Effect.
7.1.14. Material Adverse Change. If Required Lenders determine in
good faith that a Material Adverse Change has occurred with respect to any
Borrower from the condition set forth in the financial statements furnished to
Administrative Agent and each Lender for the fiscal year ended immediately prior
to the Closing Date, or from the condition of any Borrower most recently
disclosed to Administrative Agent or any Lender in any other manner.
7.2. Remedies.
7.2.1. Acceleration, Termination and Pursuit of Collateral. At any
time during the existence of any Event of Default, at the election of Required
Lenders but with notice thereof to a Borrower (unless an Event of Default
described in Section 7.1.10 has occurred, in which case acceleration will occur
automatically with respect to the entire indebtedness and without any notice),
then Lenders (a) may terminate any or all Commitments and/or Facilities, and/or
(b) may accelerate the Term Loan Maturity Date, and/or (c) may declare all or
any portion of the indebtedness of any or all Borrowers to Lenders (hereunder or
otherwise, and including all principal, interest, fees, expenses and indemnities
hereunder) to be immediately due and payable. At any time during the existence
of any Event of Default, Lenders and Administrative Agent will also have the
immediate right to enforce and realize upon any collateral security granted
under any Loan Document in any manner or order that Required Lenders or
Administrative Agent (at the direction of Required Lenders) deems expedient
without regard to any equitable principles of marshaling or otherwise.
7.2.2. Other Remedies. In addition to the rights and remedies
expressly granted in the Loan Documents, each Lender and Administrative Agent
also will have all other legal and equitable rights and remedies granted by or
available under all applicable law (including the "self help" and other rights
of a secured party under the UCC), and all rights and remedies will be
cumulative in nature.
7.2.3. Special Regulatory-Related Remedies.
a. Each Borrower and Administrative Agent hereby acknowledge
their intent that, during the existence of an Event of Default, to the fullest
extent permitted by applicable law and governmental policy (including the rules,
regulations and policies of the FCC and each State PUC), Administrative Agent
will have all rights necessary or desirable to obtain, use and/or sell the
assets and operations of each Borrower and the other Collateral, and to exercise
all remedies available to Administrative Agent and each Lender under the Loan
Documents, the Uniform Commercial Code or other applicable law. Each Borrower
and Administrative Agent agree that, if any applicable law or governmental
policy changes subsequent to the date hereof that affects in any manner
Administrative Agent's rights of access to, or use or sale of, any Borrower's
assets or other Collateral (including Authorizations) or the procedures
necessary to enable Administrative Agent to obtain such rights of access, use or
sale during an Event of Default, then Administrative Agent and each Borrower
will amend the Loan Documents (in such manner as Administrative Agent reasonably
requests) in order to provide Administrative Agent with all such rights to the
greatest extent possible consistent with then-applicable law and governmental
policy.
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b. Each Borrower hereby agrees (during the existence of a
Default) to take any actions that Administrative Agent may reasonably request in
order to enable Administrative Agent to receive the full rights and benefits
granted to Administrative Agent and each Lender by the Loan Documents. Without
limiting the generality of the foregoing, at any time during the existence of an
Event of Default, at the cost and expense of Borrowers (jointly and severally),
each Borrower will use its best efforts to assist and cooperate in obtaining all
approvals (including all FCC and State PUC approvals) which are then required by
applicable law or contract for or in connection with any action or transaction
contemplated by the Loan Documents or the Uniform Commercial Code. Each Borrower
further agrees, upon Administrative Agent's request and at the expense of
Borrowers (jointly and severally), at any time during the existence of an Event
of Default, to prepare, sign, file and diligently prosecute (and to use its best
efforts to cause the preparation, execution, filing and diligent prosecution by
others) with the FCC the assignor's or transferor's portion of any applications
for consent to the assignment of Authorizations or transfer of control thereof
necessary or appropriate under the rules of each Official Body for approval of
any sale or transfer of any Collateral or any Authorization pursuant to the
exercise of Administrative Agent's and Lenders' remedies under the Loan
Documents. Each Borrower further agrees that, during the existence of a Default,
each Borrower will assist and cooperate with Administrative Agent and each
Lender (and will use its best efforts to cause others to assist and cooperate
with Administrative Agent and each Lender) to ensure that each Borrower
continues (a) to operate in the normal course of business, and (b) to fulfill
all of its legal, regulatory and contractual obligations, and (c) to otherwise
be properly and professionally managed. At Administrative Agent's request and
the expense of Borrowers (jointly and severally), at any time during the
existence of an Event of Default, such assistance and cooperation may include
the employment of (and, to the maximum extent not prohibited by the rules,
regulations and orders of the FCC, delegation of appropriate management
authority to) one or more qualified and independent consultants and professional
managers acceptable to Administrative Agent to assist in the interim operations
of Borrowers; all of which each Borrower hereby agrees not to challenge. Each
Borrower further consents to (and agrees that it will not challenge), at any
time during the existence of an Event of Default, the transfer of control or
assignment of Authorizations and other assets to a receiver, trustee,
transferee, or similar official or to any purchaser of the Collateral pursuant
to any public or private sale, judicial sale, foreclosure or exercise of other
remedies available to Administrative Agent or any Lender as permitted by
applicable law.
c. Notwithstanding anything to the contrary contained in any
Loan Document, neither Administrative Agent nor any Lender nor any Borrower will
take any action pursuant to the Loan Documents that would constitute or result
in any assignment of an Authorization or any transfer of control of any Borrower
if such assignment of Authorization or transfer of control would require under
then existing law (including the written rules and regulations promulgated by
the FCC) the prior approval of the FCC or any State PUC, unless such approval
has been obtained (as applicable) from such State PUC (to the extent failure to
obtain such approval by Administrative Agent could reasonably be expected to
have or cause a Material Adverse Effect) or from the FCC. Without limiting the
generality of the foregoing, Administrative Agent and each Lender each
specifically agrees that (a) voting rights with respect to the pledged equity
interests of each Borrower will remain with the holders of such voting rights
during the existence of an Event of Default unless and until any required prior
approvals to the transfer of such voting rights have been obtained (as
applicable) from such State PUC (to the extent failure to obtain such approval
by Administrative Agent could reasonably be expected to have or cause a Material
Adverse Effect) or
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from the FCC, and (b) during the existence of any Event of Default and
foreclosure upon the Collateral by Administrative Agent, there will be either a
private or public sale of the Collateral, and (c) prior to the exercise of
voting rights by the purchaser at any such sale, any consent of any State PUC or
the FCC required pursuant to any State Communications Act (to the extent failure
to obtain such consent could reasonably be expected to have or cause a Material
Adverse Effect) or the Federal Communications Act (respectively) will be
obtained.
ARTICLE 8: ADMINISTRATIVE AGENT AND RELATIONSHIP AMONG LENDERS
8.1. Appointment, Authorization and Grant of Authority. Each Lender hereby
irrevocably designates and appoints MCG as the Administrative Agent of such
Lender to act as specified in this Agreement and the other Loan Documents, and
each such Lender hereby irrevocably authorizes MCG (in its capacity as
Administrative Agent) to take actions on behalf of such Lender, to exercise such
powers and to perform such other duties as are expressly delegated to the
Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with all such other powers and authority as are reasonably
incidental thereto. Without limiting the generality of the foregoing, the
Administrative Agent (on behalf of each Lender) is authorized (a) to execute
each Loan Document (other than this Agreement, but including, without
limitation, all financing statements, continuation statements and other
collateral agreements and documents) for and on behalf of each Lender, and (b)
to accept each Loan Document and all other agreements, documents, instruments,
certificates and opinions reasonably required to implement the intent of the
parties to this Agreement, and (c) to file and record all financing statements,
continuation statements and other collateral agreements and documents, and (d)
to receive and deliver communications and notifications to Lenders and to
Borrowers, and (e) to receive and distribute payments and Advances between
Lenders and Borrowers. The duties and responsibilities of the Administrative
Agent shall be ministerial and administrative in nature. Notwithstanding any
provision to the contrary in any Loan Document, the Administrative Agent (a)
shall not have any duties or responsibilities other than those expressly set
forth in the Loan Documents (which duties and responsibilities shall be subject
to the limitations and qualifications set forth in this Article), and (b) shall
not have any fiduciary relationship with any Lender; and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into the Loan Documents or otherwise exist against the Administrative Agent.
8.2. Acceptance of Appointment. MCG hereby accepts such appointment and
agrees to act as such Administrative Agent upon the express terms and conditions
(but subject to the limitations and qualifications) set forth in this Article.
8.3. Administrative Agent's Relationship with Borrowers. The provisions of
this Article are solely for the benefit of the Administrative Agent and Lenders,
and no Borrower shall have any rights as a third party beneficiary (or
otherwise) under this Article. In performing its functions and duties under the
Loan Documents, the Administrative Agent shall act solely as an agent of the
Lenders, and the Administrative Agent does not assume (and shall not be deemed
to have assumed) any obligation or relationship of agency or trust with or for
any Borrower.
8.4. Non-Reliance on Administrative Agent and Other Lenders. Each Lender
expressly acknowledges and agrees (a) that the Administrative Agent (and its
directors, officers, employees,
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agents, attorneys-in-fact and Affiliates) have not made any representations or
warranties to such Lender and (b) that no act by the Administrative Agent
hereinafter taken (including, without limitation, any review of the affairs of
any Borrower or other Obligor) shall be deemed to constitute any representation
or warranty by the Administrative Agent to any Lender. Each Lender represents to
the Administrative Agent that it (independently and without any reliance upon
the Administrative Agent or any other Lender, and based upon such documents and
information as it has deemed necessary or appropriate) has made its own
appraisal, investigation and credit analysis of the business, assets,
operations, properties, financial and other condition, prospects and
creditworthiness of each Borrower and each other Obligor and has made its own
decision to make its Loans hereunder and to enter into this Agreement. Each
Lender also covenants and represents that it (independently and without any
reliance upon the Administrative Agent or any other Lender, and based upon such
documents and information as it shall deem necessary or appropriate) will
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement, and will continue to make such
investigations as it deems necessary or appropriate to inform itself as to the
business, assets, operations, properties, financial and other condition,
prospects and creditworthiness of each Borrower and each other Obligor. Except
as otherwise expressly provided in the Loan Documents, the Administrative Agent
shall not have any duty or responsibility (a) to keep any Lender informed as to
the performance or observance by any Borrower or any other Obligor of its
obligations under the Loan Documents, or (b) to inspect the books or properties
of any Borrower or any other Obligor, or (c) to provide any Lender with any
credit or other information concerning the business, operations, assets,
properties, financial and other condition, prospects or creditworthiness of any
Borrower or any other Obligor which may come into the possession of the
Administrative Agent (or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates). The Administrative Agent will make reasonable
efforts to furnish to the Lenders material information concerning Borrowers of
which the Administrative Agent has actual knowledge; however, in the absence of
gross negligence, willful misconduct or fraud, the Administrative Agent shall
not be liable to any Lender for any failure to relay or furnish to such Lender
any such information.
8.5. Reliance by Administrative Agent. The Administrative Agent shall be
entitled to rely and act (and shall be fully protected in relying and acting)
upon any note, writing, resolution, instrument, report, notice, consent,
certificate, affidavit, letter, request, electronic transmission or any other
message, statement, instruction, notice, order or other writing, conversation or
communication believed by Administrative Agent in good faith to be genuine and
correct and to have been signed, sent or made by the proper Person. The
Administrative Agent shall not be bound to ascertain or inquire as to the
satisfaction, performance or observance of any of the terms, provisions,
covenants or conditions of or the accuracy of any statements or representations
in any Loan Document by any Borrower or any other Obligor. The Administrative
Agent may deem and treat the stated payee of any Note as the holder thereof for
all purposes under the Loan Documents unless and until Administrative Agent has
received and accepted an assignment and assumption agreement relating thereto in
form and substance acceptable to the Administrative Agent.
8.6. Delegation of Duties; Additional Reliance by Administrative Agent.
The Administrative Agent may consult with, employ and perform any of its duties
under the Loan Document by or through agents, attorneys-in-fact, legal counsel,
independent public accountants and other experts. The Administrative Agent shall
not be responsible for the negligence or misconduct of any such Persons selected
by Administrative Agent with reasonable care, and the Administrative
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Agent shall be fully protected in any action or inaction taken by it in good
faith in reliance upon or in accordance with the advice or statements of legal
counsel (including, without limitation, counsel to Borrowers), independent
accountants and other experts selected by Administrative Agent.
8.7. Acting on Instructions of Lenders. The Administrative Agent shall be
entitled to act or refrain from acting (and shall be fully protected in acting
or refraining from acting) under the Loan Documents in accordance with a written
request of or written instructions from the Required Lenders. The Administrative
Agent shall also be entitled to refrain from acting (and shall be fully
protected in refraining from acting) under the Loan Documents unless
Administrative Agent first (a) receives such advice or concurrence of the
Required Lenders as Administrative Agent deems appropriate or (b) is indemnified
to its satisfaction by the Lenders against any and all liability and expense
which it may incur by reason of taking or continuing to take any such action.
Except as otherwise expressly stated in the Loan Documents, any requests or
instructions by the Required Lenders (and any action or inaction by
Administrative Agent pursuant thereto) shall be binding upon all the Lenders.
8.8. Actions Upon Occurrence of Default or Event of Default. Each Lender
will use its best efforts to notify the Administrative Agent immediately in
writing upon becoming aware of the occurrence of any Default or Event of
Default. The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless the
Administrative Agent has received notice from a Lender or a Borrower referring
to this Agreement, describing such Default or Event of Default, and stating that
such notice is a "notice of default". If the Administrative Agent receives any
such notice of default, then the Administrative Agent shall use its best efforts
to give notice thereof to each Lender as soon as reasonably practical. Upon the
occurrence of any Default or Event of Default, the Lenders shall promptly
consult with one another in an attempt to agree upon a mutually acceptable
course of conduct. In the absence of unanimous agreement among the Lenders as to
the appropriate course of conduct, the Administrative Agent shall exercise
rights and take such other action on behalf of all Lenders with respect to such
Default or Event of Default as directed by the Required Lenders. Unless and
until the Administrative Agent shall have received such directions from the
Lenders (or, as applicable, the Required Lenders), the Administrative Agent may
take (but shall not be obligated to take) such action (or may refrain from
taking such action) with respect to such Default or Event of Default as
Administrative Agent shall deem advisable in the best interest of the Lenders.
8.9. Administrative Agent's Rights as Lender in Individual Capacity. The
Administrative Agent (and its Affiliates) may make loans to, may have cash
management agreements with, may accept deposits from, may issue letter of credit
on behalf of, and may otherwise generally engage (and continue to engage) in any
kind of business with any Borrower or other Obligor as though the Administrative
Agent were not the Administrative Agent under the Loan Documents. With respect
to any Loans made by Administrative Agent as a Lender hereunder and all
obligations owing to it as a Lender under the Loan Documents, the Administrative
Agent shall have the same rights, powers duties and obligations under the Loan
Documents as any other Lender and may exercise such rights, powers, duties and
obligations as though it were not the Administrative Agent hereunder. To the
extent that the Administrative Agent is a Lender hereunder, the terms "Lender",
"Lenders" and "Required Lenders" shall include the Administrative Agent in its
individual capacity.
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8.10. Advances By Administrative Agent. Unless the Administrative Agent
has been notified in writing by a Lender prior to the Settlement Date for any
Advance or Loan that such Lender will not make the amount constituting its Pro
Rata share of such Advance or Loan available to the Administrative Agent on or
prior to such applicable Settlement Date, then the Administrative Agent may
assume (but shall not be required to assume) that such Lender will make such
amount available to the Administrative Agent in immediately available funds on
or before such Settlement Date, and in reliance upon such assumption, the
Administrative Agent may make available to Borrowers a corresponding amount on
behalf of such Lender. If the amount of such Pro Rata share is not made
available to the Administrative Agent in immediately available funds by a Lender
until after the applicable Settlement Date, then such Lender shall pay to the
Administrative Agent on demand and in immediately available funds an amount
equal to the result of the following equation (which shall be in addition to the
amount of such Lender's Pro Rata share of such Advance or Loan): the product of
(a) the average (computed for the period determined under clause (c) below) of
the weighted average interest rate for Federal Funds as determined by the
Administrative Agent during each day included in such period, multiplied by (b)
the amount of such Lender's Pro Rata share of such Advance or Loan, multiplied
by (c) a fraction (i) the numerator of which is the number of days that elapsed
from and including such Settlement Date to and including the date on which such
Lender's Pro Rata share of such Advance or Loan is actually received by the
Administrative Agent in immediately available funds and (ii) the denominator of
which is 360. A statement from the Administrative Agent submitted to any Lender
with respect to any amounts owing under this Section shall be conclusive (absent
manifest error) as to the amount owed to the Administrative Agent by such
Lender. If such Lender's Pro Rata share is not actually received by the
Administrative Agent in immediately available funds within three (3) Business
Days after the applicable Settlement Date for such Advance or Loan, then the
Administrative Agent shall be entitled to recover from such Lender, on demand,
the amount of such Pro Rata share with interest thereon for the entire such
period since such Settlement Date at the highest interest rate per annum then
applicable under the Facilities.
8.11. Payments to Lenders. Promptly after receipt in immediately available
funds from Borrowers of any payment of principal, interest or any fees or other
amounts due to any Lender under the Loan Documents, the Administrative Agent
shall distribute to each Lender that Lender's Pro Rata share of such funds so
received.
8.12. Pro-Rata Sharing of Setoff Proceeds. Any sums obtained by the
Administrative Agent or any Lender from any Borrower or other Obligor by reason
of any exercise of a right of setoff or banker's lien shall be shared Pro Rata
among Lenders. Notwithstanding the foregoing, neither the Administrative Agent
nor any Lender shall be required to so share with any other Lender collections
from any Borrower or other Obligor specifically relating to (or the proceeds of
any item of collateral that is not subject to the Loan Documents) any other
indebtedness (i.e. other than indebtedness under the Loan Documents) of such
Borrower or other Obligor to the Administrative Agent or such Lender.
8.13. Limitation on Liability of Administrative Agent. The Administrative
Agent (and its directors, officers, employees, agents, attorneys-in-fact and
Affiliates) shall not be liable to any Lender for any action taken or inaction
by Administrative Agent or such Person under or in connection with any Loan
Document, except to the extent of foreseeable actual loses resulting directly
and exclusively from Administrative Agent's own gross negligence, willful
misconduct or fraud. Without limiting the generality of the foregoing, the
Administrative Agent (and its directors,
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officers, employees, agents, attorneys-in-fact and Affiliates) shall not be
liable, responsible or have any duty with respect to any of the following: (a)
the genuineness, execution, authorization, validity, effectiveness,
enforceability, collectibility, value or sufficiency of any Loan Document, or
(b) the collectibility of any amount owed by any Obligor to any Lender, or (c)
the accuracy, completeness or truthfulness of any recital, statement,
representation or warranty made to the Administrative Agent or to any Lender in
connection with any Loan Document or other certificate, affidavit, report,
opinion, financial statement, document or instrument executed or furnished
pursuant to or in connection with any Loan Document, or (d) any failure of any
Person to receive any notice or communication due such Person under any Loan
Document or applicable law, or (e) the assets, liabilities, financial condition,
results of operations, business, prospects or creditworthiness of any Borrower
or any other Obligor, or (f) ascertaining or inquiring into the satisfaction,
observance or performance of any condition, covenant or agreement in any Loan
Document (including, without limitation, the use of proceeds by any Borrower),
or (g) the inspection of any books, records or properties of any Obligor, or (h)
the existence or possible existence of any Default or Event of Default.
8.14. Indemnification. To the extent that Borrowers do not actually
reimburse, indemnify or hold harmless Administrative Agent (in accordance with
Section 10.1 hereof), then each Lender hereby agrees on a Pro Rata basis to
indemnify and hold harmless the Administrative Agent (and its directors,
officers, employees, agents, attorneys-in-fact and Affiliates) from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, reasonable expenses or disbursements of any kind
whatsoever that at any time (including, without limitation, at any time
following the payment of the Obligations of Borrowers hereunder) may be imposed
upon, incurred by or asserted against the Administrative Agent (or its
directors, officers, employees, agents, attorneys-in-fact or Affiliates) in its
capacity as such in any way relating to or arising out of any Loan Document, or
the transactions contemplated hereby or any action or inaction taken by the
Administrative Agent under or in connection with any of the foregoing; provided
that no Lender shall be liable to the Administrative Agent (or its directors,
officers, employees, agents, attorneys-in-fact or Affiliates) for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting directly
and exclusively from the gross negligence, willful misconduct or fraud of the
Administrative Agent. If any indemnity furnished to the Administrative Agent (or
its directors, officers, employees, agents, attorneys-in-fact or Affiliates) for
any purpose (in the opinion of the Administrative Agent) shall be insufficient
or become impaired, then the Administrative Agent may require additional
indemnity and cease (or not commence) to do the acts indemnified against until
such additional indemnity is furnished to the satisfaction of the Administrative
Agent. The agreement in this Section shall survive the payment of all Advances,
Loans, fees and other Obligations of each Borrower arising hereunder.
8.15. Resignation; Successor Administrative Agent. The Administrative
Agent at any time may resign as the Administrative Agent under the Loan
Documents by giving the Lenders and Borrowers written notice thereof at least 10
Business Days prior to the effective date of such resignation. During such
notice period, the Required Lenders shall appoint (from among the Lenders) a
successor Administrative Agent for the Lenders, subject to the consent of each
Lender (such approval or consent, as the case may be, not to be unreasonably
withheld, delayed or conditioned) and concurrent notice to the Borrowers. Upon
acceptance of such appointment by such
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successor agent, (a) such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent, and (b) the term "Administrative Agent"
shall include such successor agent effective upon its appointment, and (c) the
resigning Administrative Agent's rights, powers and duties as the Administrative
Agent shall be terminated, all without any other or further act or deed on the
part of such former Administrative Agent or any of the parties to the Loan
Documents. Notwithstanding the foregoing, after the effectiveness of the
resigning Administrative Agent's resignation hereunder as the Administrative
Agent, the provisions of this Article shall continue to inure to its benefit as
to any actions taken or omitted to be taken by it while it was Administrative
Agent under the Loan Documents.
ARTICLE 9: DEFINITIONS AND RULES OF CONSTRUCTION
9.1. Definitions. When used in this Agreement, the following terms shall
have the respective meanings set forth below:
9.1.1. "Account" means, at any relevant time, the designated or
principal deposit account of Borrowers at Administrative Agent for purposes of
effecting transactions hereunder.
9.1.2. "Additional Acquisitions" means the acquisition by one or
more of the Borrowers of substantially all the assets or 100% of the stock of
each of the entities listed on Schedule 5.7.
9.1.3. "Adjusted LIBO Rate" means the rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) determined by Administrative
Agent pursuant to the following formula:
Adjusted LIBO Rate = LIBO Rate
----------------------
1 - Reserve Percentage
For purposes of this calculation, "LIBO Rate" means the London Interbank Offered
Rate per annum (determined by Administrative Agent) two (2) Business Days prior
to the first day of any Interest Period for which the Adjusted LIBO Rate is
applicable as published by Reuters Monitor Money Rate Service and displayed on
the LIBO page as the "Libo Rate" (or, if Reuters is not available, then as
published by Bloomberg or Dow Xxxxx-Telerate and displayed on page 3750 as the
BBA LIBOR) (or, in any such instance, as published by such other service or
displayed on such other page as may replace such service or page for the purpose
of displaying rates or prices comparable to the designated rate) for the
offering of dollar deposits by leading banks in the London interbank market for
a period of approximately 3 months and in an amount approximately equal to the
amount outstanding hereunder to which such LIBO Rate will be applicable. If more
than one such rate is displayed on such page or its replacement, then the LIBO
Rate will be the arithmetic mean of such displayed rates. If the first day of
the applicable Interest Period is not a Business Day, then the applicable LIBO
Rate will be the rate in effect on the immediately preceding Business Day. For
purposes of this calculation, "Reserve Percentage" means that percentage
(expressed as a decimal) prescribed by the FRB (or any other governmental or
administrative agency or funding source to which Administrative Agent is
subject) for determining the reserve requirements (including any
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basic, supplemental, marginal or emergency reserves) for deposits of U.S.
Dollars with maturities of comparable duration in a non-U.S. or an international
banking office.
9.1.4. "Administrative Agent" means MCG Finance Corporation or any
successor, assignee, pledgee or other transferee of Administrative Agent.
9.1.5. "Advance" means any advance of funds under any Facility.
9.1.6. "Advance Request" has the meaning set forth in Section 1.4.1.
9.1.7. "Affiliate" of any Person means any other Person that
directly or indirectly controls, is controlled by or is under direct or indirect
common control with such Person. A Person shall be deemed to "control" another
Person if such first Person directly or indirectly possesses the power to direct
(or to cause the direction of or to materially influence) the management and
policies of the second Person, whether through the ownership of voting
securities, by contract or otherwise. Without limiting the generality of the
foregoing, each of the following Persons will be deemed to be an Affiliate of a
Person: (a) each Person who owns or controls 5% or more of any class or series
of any equity interest of such Person, and (b) each member, manager, partner,
director and/or senior executive officer of such Person or any Affiliate
thereof, and (c) any family member or other relative of such Person or any
Affiliate thereof, and (d) any trust of which any Person or Affiliate thereof is
either a trustee or beneficiary. Notwithstanding the foregoing, neither any
Lender nor Administrative Agent shall be deemed to be an Affiliate of any
Obligor.
9.1.8. "Agreement" means this Credit Facility Agreement and all the
exhibits and schedules hereto, all as may be amended and otherwise modified from
time to time hereafter.
9.1.9. "Authorized Officer" means any officer, employee or
representative of such organization who is expressly designated as such or is
otherwise authorized to borrow funds hereunder or, as appropriate, to sign loan
documents and/or deliver certificates on behalf of such organization pursuant to
the provisions of such organization's most recent resolution on file with
Administrative Agent.
9.1.10. "Authorization" means any License or other governmental
permit, certificate and/or approval issued by or any Tariff filed with any
Official Body.
9.1.11. "Available Credit Portion" means that portion of the Term
Loan Commitment that is generally available in the ordinary course for borrowing
at any time under the Term Loan Facility, as such amount is determined in
accordance with Section 1.3.
9.1.12. "Borrower" means, individually and collectively, the
following:
a. XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation, having
its principal and chief executive office at the address
specified in the Notice Section hereof, or any successor
or authorized assignee thereof, and
b. Global 2000 Communications, Inc., a New York
corporation, having its principal and chief executive
office at the address specified in Schedule 9.1.12, or
any successor or authorized assignee thereof, and
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c. AlbanyNet, Inc., a New York corporation, having its
principal and chief executive office at the address
specified in Schedule 9.1.12, or any successor or
authorized assignee thereof, and
d. WebWay Internet, Inc., a New York corporation, having
its principal and chief executive office at the address
specified in Schedule 9.1.12, or any successor or
authorized assignee thereof, and
e. Ascent Networking, Inc., a New York corporation, having
its principal and chief executive office at the address
specified in Schedule 9.1.12, or any successor or
authorized assignee thereof, and
f. Cyberzone, Inc., a Connecticut corporation, having its
principal and chief executive office at the address
specified in Schedule 9.1.12, or any successor or
authorized assignee thereof, and
x. Xxxxxxxx Software, Inc., a Connecticut corporation,
having its principal and chief executive office at the
address specified in Schedule 9.1.12, or any successor
or authorized assignee thereof, and
h. NECAnet, Inc., a Connecticut corporation, having its
principal and chief executive office at the address
specified in Schedule 9.1.12, or any successor or
authorized assignee thereof, and
i. Prime Communications Systems, Inc., a New York
corporation, having its principal and chief executive
office at the address specified in Schedule 9.1.12, or
any successor or authorized assignee thereof, and
j. Infoboard, Inc., a Massachusetts corporation, having its
principal and chief executive office at the address
specified in Schedule 9.1.12, or any successor or
authorized assignee thereof, and
x. Xxxx Internet Services, Inc., a New York corporation,
having its principal and chief executive office at the
address specified in Schedule 9.1.12, or any successor
or authorized assignee thereof, and
l. Ulsternet, Inc., a New York corporation, having its
principal and chief executive office at the address
specified in Schedule 9.1.12, or any successor or
authorized assignee thereof, and
m. BOL Acquisition Co. III, Inc., a New York corporation,
having its principal and chief executive office at the
address specified in Schedule 9.1.12, or any successor
or authorized assignee thereof, and
n. BOL Acquisition Co. II, Inc., a New York corporation,
having its principal and chief executive office at the
address specified in Schedule 9.1.12, or any successor
or authorized assignee thereof, and
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o. BOL Acquisition Co. VIII, Inc., a Connecticut
corporation, having its principal and chief executive
office at the address specified in Schedule 9.1.12, or
any successor or authorized assignee thereof, and
p. Any other entity subsequently added hereto as a Borrower
hereunder, or any successor or authorized assignee
thereof.
9.1.13. "Business Day" means any day that is not a Saturday, a
Sunday or a day on which banks under the laws of the Commonwealth of Virginia
(or, with respect to certain LIBO Rate matters, banks in London, England) are
authorized or required to be closed.
9.1.14. "Capital Expenditures" means expenditures (a) for any fixed
assets or improvements, replacements, substitutions or additions thereto that
have a useful life of more than one (1) year, including direct or indirect
acquisition of such assets or (b) for any Capital Leases.
9.1.15. "Capital Leases" means capital leases and subleases as
defined in the Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 13 dated November 1976 (as amended and updated from
time to time).
9.1.16. "Closing Date" means the date on which all conditions
precedent to the effectiveness of this Agreement under Section 2.1 have been
satisfied or waived by Lenders.
9.1.17. "Code" means the Internal Revenue Code of 1986, as amended.
9.1.18. "Collateral" means the collateral security committed to
Administrative Agent under the Collateral Security Documents executed by any
Borrower or any other Obligor in favor of Administrative Agent pursuant to this
Agreement from time to time and/or pursuant to all similar or related documents
and agreements from time to time, all as amended from time to time.
9.1.19. "Collateral Security Documents" means, individually and
collectively, (a) the Security Agreements and the financing statements filed
pursuant thereto, and (b) the Pledge and Security Agreements, and (c) any
additional documents guaranteeing indebtedness, assuring performance of
obligations, subordinating indebtedness, or granting security or Collateral to
Administrative Agent hereunder, all as amended from time to time.
9.1.20. "Commitment" means any commitment for credit pursuant to a
Facility established hereunder.
9.1.21. "Commitment Percentage" means, with respect to each Lender,
that portion of the total Commitments as to which such Lender is obligated.
9.1.22. "Default" means any event or circumstance that with the
giving of notice or the passage of time would constitute an Event of Default.
The term Default shall include any Event of Default arising therefrom.
9.1.23. "Dollar" or "$" means U.S. dollars.
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9.1.24. "EBITDA" means, at the time of any determination, the sum of
the following items for Borrowers during the relevant fiscal period:
a. Net income from continuing operations (on a consolidated
basis) during such period -- i.e., excluding
extraordinary gains and income items and the cumulative
effect of accounting changes, and income associated with
transactions with Affiliates for which payment is
received in a form other than cash or cash equivalents
-- determined in accordance with GAAP, and
b. Plus Interest Expense during such period, but subtract
interest income accrued during such period, and
c. Plus federal and state income taxes paid or required to
be paid during such period and, and
d. Plus depreciation permitted under GAAP during such
period, and
e. Plus amortization expense permitted under GAAP during
such period.
For purposes of this calculation, interest shall include interest accrued under
Capital Leases, determined in accordance with GAAP.
9.1.25. "Environmental Control Statutes" means all federal, state
and local laws, rules, ordinances and regulations (as implemented and as
interpreted) governing the control, removal, storage, transportation, spill,
release or discharge of hazardous or toxic wastes, substances and petroleum
products, including as provided in the provisions of (a) the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by
the Superfund Amendment and Reauthorization Act of 1986, and (b) the Solid Waste
Disposal Act, and (c) the Clean Water Act, and (d) the Clean Air Act, and (e)
the Hazardous Materials Transportation Act, and (f) the Resource Conservation
and Recovery Act of 1976, and (g) the Federal Water Pollution Control Act
Amendments of 1972, and (h) the rules, regulations and ordinances of the EPA,
and any departments of health services, regional water quality control boards,
state water resources control boards, and/or cities in which any of such
Borrower's assets are located.
9.1.26. "EPA" means the United States Environmental Protection
Agency or any other entity that succeeds to its responsibilities and powers.
9.1.27. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and as implemented and interpreted.
9.1.28. "ERISA Affiliate" means any company, whether or not
incorporated, which is considered a single employer with Borrower under Titles
I, II and IV of ERISA.
9.1.29. "Escrow Account" means the escrow account created pursuant
to the Escrow Agreement.
9.1.30. "Escrow Agent" means Xxxxx Bank, N.A. or any successor or
assignee.
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9.1.31. "Escrow Agreement" means the escrow agreement among
Borrowers, Escrow Agent and Administrative Agent pursuant to which $10,000,000
is placed in escrow on the Closing Date.
9.1.32. "Event of Default" means each of the events described in
Section 7.1.
9.1.33. "Facility" means any credit facility established under
Article 1.
9.1.34. "FCC" means the Federal Communications Commission or any
other entity or agency that succeeds to its responsibilities and powers.
9.1.35. "Federal Communications Act" means the Communications Act of
1934, as amended, and as implemented by the FCC and interpreted by the FCC or
any court of competent jurisdiction.
9.1.36. "Final Term Draw Date" has the meaning set forth in Section
1.1.1, as may be extended from time to time in Lenders' sole and absolute
discretion.
9.1.37. "Fixed Charges" means, at the time of any determination, the
sum of the following items (without duplication) for Borrowers during the
relevant four consecutive fiscal quarter period:
a. The amount of principal required to be paid under this
Agreement during such period, and
b. Plus the amount of principal paid or required to be paid
and mandatory commitment reductions on other Funded Debt
(i.e., Funded Debt other than under this Agreement)
during such period, and
c. Plus Interest Expense during such period, and
d. Plus the amount of cash Capital Expenditures during such
period.
9.1.38. "FRB" means the Board of Governors of the Federal Reserve
System or any other entity or agency that succeeds to its responsibilities and
powers.
9.1.39. "Funded Debt" means, at the time of any determination, the
aggregate principal amount of indebtedness of all Borrowers (on a consolidated
basis) for the following:
a. Borrowed money (including the indebtedness under the
Loan Documents, but not including trade indebtedness
permitted under Section 5.2.b), and
b. Installment purchases of real or personal property, and
c. Subordinated Indebtedness, and
d. Capital Leases, and
e. Deferred purchase price in connection with acquisitions,
and
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f. Reimbursement obligations under letters of credit, and
g. Any indebtedness evidenced by a promissory note, and
h. Guaranties of indebtedness and obligations that would
constitute Funded Debt hereunder if the primary obligor
thereof were a Borrower, and
i. Indebtedness otherwise required to be included as part
of "Funded Debt" under Section 5.2.
9.1.40. "GAAP" means generally accepted accounting principles
applied on a consistent basis set forth in the Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
and/or in statements of the Financial Accounting Standards Board and/or in such
other statements by such other entity as Administrative Agent may reasonably
approve, which are applicable in the circumstances as of the date in question,
and the requirement that such principles be applied on a consistent basis shall
mean that the accounting principles observed in a current period are comparable
in all material respects to those applied in preceding periods.
9.1.41. "Hazardous Materials" includes (a) any "hazardous waste" as
defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C. ss.
6901 et seq.), as amended from time to time, and regulations promulgated
thereunder; or (b) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. ss.
9601 et seq.), as amended from time to time, and regulations promulgated
thereunder; or (c) any other substance the use or presence of which on, in,
under or above any real property ever owned, controlled or used by Borrower is
similarly regulated or prohibited by any federal, state or local law, rule,
ordinance, regulation or decree of any court or governmental authority as a
hazardous material.
9.1.42. "Interest Coverage Ratio" means, at any time such ratio is
being computed, the ratio of "Pro Forma OCF" to "Interest Expense" (for the
immediately preceding four fiscal quarters).
9.1.43. "Interest Expense" means, at the time of any determination,
the amount of interest and other finance charges of Borrowers (on a consolidated
basis) required to be charged as an expense under GAAP during the immediately
preceding four consecutive fiscal quarter period (including the fees under
Section 1.7 and any other such charges with respect to any Funded Debt). For
purposes of this calculation, interest includes interest accrued under Capital
Leases.
9.1.44. "Interest Period" means (a) with respect to the Prime Rate,
a period of one (1) Business Day, and (b) with respect to the Adjusted LIBO
Rate, a period of 3 months duration commencing initially on the date of the
relevant Advance and ending 3 months thereafter and (after such initial Interest
Period) commencing on the day immediately following the last day of the
preceding Interest Period and ending on the corresponding day 3 months
thereafter.
9.1.45. "Lender" means, individually and collectively, the
following:
a. MCG Finance Corporation or any successor, assignee,
participant, pledgee or other transferee of such Lender
hereunder, and
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b. Any other entity subsequently added hereto as a Lender
hereunder, or any successor, assignee, participant or
other transferee thereof.
9.1.46. "Leverage Ratio" means, at any time such ratio is being
computed, the ratio of "Funded Debt" to "OCF" (for the immediately preceding
four fiscal quarters).
9.1.47. "LIBO Rate" has the meaning set forth in the definition of
"Adjusted LIBO Rate".
9.1.48. "License" means any authorization, construction or other
permit, consent, franchise, ordinance, registration, certificate, license, call
sign, frequency designation, agreement or other right filed with, granted by,
issued by or entered into with any Official Body.
9.1.49. "Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
otherwise), reversionary or reclamation interest, charge against or interest in
property to secure payment of a debt or performance of an obligation or other
priority or preferential arrangement of any kind or nature whatsoever.
9.1.50. "LLC" means a limited liability company.
9.1.51. "Loan" means any loan or Advance of funds under any Facility
as well as any other credit extended by Administrative Agent or any Lender to
any Borrower under this Agreement.
9.1.52. "Loan Documents" means this Agreement, any Notes, the
Collateral Security Documents and any other documents, agreements and
certificates entered into or delivered in connection herewith or therewith or
pursuant hereto or thereto, all as may be amended, modified and supplemented
from time to time.
9.1.53. "Local Authorities" means, individually and collectively,
the state and local governmental authorities that govern the activities of any
Borrower.
9.1.54. "Margin Regulation" has the meaning set forth in Section
3.17.
9.1.55. "Margin Stock" has the meaning set forth in Section 3.17.
9.1.56. "Material Adverse Change" means any change that has or
causes or could reasonably be expected to have or cause a Material Adverse
Effect.
9.1.57. "Material Adverse Effect" means, relative to any occurrence
of whatever nature (including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding), a material adverse
change to, or, as the case may be, a materially adverse effect on:
a. The business, assets, revenues, financial condition,
operations, Collateral or prospects of any Borrower or
other Obligor; or
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b. The ability of any Borrower to perform any of its
payment obligations when due or to perform any other
material obligations under any Loan Document; or
c. Any right, remedy or benefit of Administrative Agent or
any Lender under any Loan Document.
9.1.58. "Material Contract" has the meaning set forth in Section
3.8.
9.1.59. "MCG" means MCG Finance Corporation, a Delaware corporation,
or any successor or assignee thereof, having an office at the address specified
in the Notice Section hereof, and which is Administrative Agent and a Lender
hereunder at the time of execution hereof.
9.1.60. "Notes" means, individually and collectively, each
promissory note delivered to each Lender pursuant to any Loan Document and
evidencing any indebtedness to such Lender under the Loan Documents (each as may
be amended, modified, supplemented, restated, extended, renewed or replaced from
time to time).
9.1.61. "Obligations" means all of the indebtedness and obligations
(monetary or otherwise) of any Borrower and any other Obligor arising under or
in connection with any Loan Document as well as all indebtedness and obligations
(monetary or otherwise) of any Affiliate of any Borrower or other Obligor
arising under or in connection with any agreement between any such Affiliate and
Administrative Agent or any Lender (or any Affiliate of Administrative Agent or
any Lender).
9.1.62. "Obligor" means each Borrower or any other Person (other
than Administrative Agent and Lenders) obligated under any Loan Document.
9.1.63. "OCF" (or "Operating Cash Flow") has the meaning set forth
in the definition of EBITDA determined for the immediately preceding four fiscal
quarter period.
9.1.64. "Official Body" means any federal, state, local, or other
government (or any political subdivision, agency, authority, bureau, commission,
department or instrumentality thereof) and any court, tribunal, grand jury or
arbitrator, in each instance whether foreign or domestic.
9.1.65. "Operating Agreement" means any consulting agreement,
management agreement, employment agreement, cost allocation agreement, or other
similar agreement relating to the operations of any Borrower.
9.1.66. "Option" has the meaning set forth in Section 1.7.
9.1.67. "Organic Document" means, relative to any entity, its
certificate and articles of incorporation or organization, its by-laws or
operating agreements, and all equityholder agreements, voting agreements and
similar arrangements applicable to any of its authorized shares of capital
stock, its partnership interests or its member interests, and any other
arrangements relating to the control or management of any such entity (whether
existing as a corporation, a partnership, an LLC or otherwise).
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9.1.68. "PBGC" means the Pension Benefits Guaranty Corporation or
any other entity that succeeds to its responsibilities and powers under ERISA.
9.1.69. "Permitted Guaranties" has the meaning set forth in Section
5.3.
9.1.70. "Permitted Indebtedness" has the meaning set forth in
Section 5.2.
9.1.71. "Permitted Investments" has the meaning set forth in Section
5.7.
9.1.72. "Permitted Liens" has the meaning set forth in Section 5.5.
9.1.73. "Permitted Loans" has the meaning set forth in Section 5.4.
9.1.74. "Permitted Transfers" has the meaning set forth in Section
5.6.
9.1.75. "Person" means any natural person, corporation, LLC,
partnership, firm, association, trust, government, governmental agency or any
other entity, whether acting in an individual, fiduciary or other capacity.
9.1.76. "Plan" means any pension benefit or welfare benefit plan as
defined in Sections 3(1), (2) or (3) of ERISA covering employees of any Borrower
or any ERISA Affiliate of any Borrower.
9.1.77. "Pledge and Security Agreements" means, individually and
collectively, each pledge and security agreement relating to a pledge of an
equity interest in an enterprise (all as may be amended, modified and
supplemented from time to time) required to be executed and delivered in favor
of Administrative Agent pursuant to the Loan Documents.
9.1.78. "Portion" means a designated portion of the indebtedness
hereunder as to which a specified Rate Index (and a corresponding Rate Margin)
has been selected or deemed to be applicable.
9.1.79. "Prime Rate" means a variable rate of interest per annum
equal to the rate of interest from time to time published by the Board of
Governors of the Federal Reserve System in Federal Reserve statistical release
H.15 (519) entitled "Selected Interest Rates" as the Bank prime loan rate. The
Prime Rate also includes rates published in any successor publications of the
Federal Reserve System reporting the Bank prime loan rate or its equivalent. In
the event that the Board of Governors of the Federal Reserve System ceases to
publish a Bank prime loan rate or equivalent, the term "Prime Rate" shall mean a
variable rate of interest per annum equal to the highest of the "prime rate,"
"reference rate," "base rate" or other similar rate as determined by
Administrative Agent announced from time to time by any of First Union National
Bank, NationsBank, the Chase Manhattan Bank or Citibank, N.A. Such term,
however, does not necessarily mean Administrative Agent's best or lowest rate
available.
9.1.80. "Pro Forma Leverage Ratio" means, at any time such ratio is
being computed, the ratio of "Funded Debt" to "Pro forma OCF."
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9.1.81. "Pro Forma OCF" means, at the time of any determination, the
sum of the following items (without duplication) for Borrowers during the
relevant single fiscal quarter period (multiplied by four):
a. EBITDA during such period, and
b. Plus or minus such adjustments as set forth on Schedule
9.1.81 which Schedule will be updated from time to time
as approved in Lenders' sole and absolute discretion.
9.1.82. "Pro Rata" means from or to each Lender in proportion to its
Commitment Percentage.
9.1.83. "Rate Index" has the meaning set forth in Section 1.1.5.
9.1.84. "Rate Margin" has the meaning set forth in Section 1.1.5.
9.1.85. "Required Lender" means Lenders holding at least 66% of the
aggregate outstanding principal amount of the Loans (or, if no Loans at the time
of such determination are outstanding, then Lenders obligated with respect to at
least 66% of the Commitments).
9.1.86. "Reserve Percentage" has the meaning set forth in the
definition of "Adjusted LIBO Rate".
9.1.87. "Revenue" means revenue of Borrowers (on a consolidated
basis) as determined in accordance with GAAP.
9.1.88. "SEC" means the Securities and Exchange Commission or any
other entity that succeeds to its responsibilities and powers.
9.1.89. "Securities Acts" means, collectively, the Securities Act of
1933 and the Securities Exchange Act of 1934, each as amended, and as
implemented by the SEC and interpreted by the SEC or any court of competent
jurisdiction.
9.1.90. "Security Agreements" means, collectively, each security
agreement (as may be amended, modified and supplemented from time to time)
required to be executed and delivered in favor of Administrative Agent pursuant
to Article 2, and any other security agreement required or delivered in
connection with the Loan Documents, including any intellectual property
assignments or security agreements required to be delivered pursuant to Article
2.
9.1.91. "Settlement Date" means, with respect to any Advance
hereunder, the date on which funds are advanced by Administrative Agent.
9.1.92. "State Communications Acts" means the laws of any state in
which any Borrower does business that govern the provision of communications
services offered or performed by any Borrower within such state and are
applicable to such Borrower, as amended from time to time, and as implemented by
the rules, regulations, and orders of the applicable State PUC or any court of
competent jurisdiction.
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9.1.93. "State PUC" means the public utility commission or other
regulatory agency of any state in which any Borrower does business that is
vested with jurisdiction over such Borrower and over State Communications Acts
or the provision of communication services within such state.
9.1.94. "Subordinated Indebtedness" means all indebtedness and
monetary obligations of any Borrower (other than indebtedness in favor of
Administrative Agent or any Lender or indebtedness and obligations expressly
excluded therefrom by Required Lenders), including all indebtedness treated or
defined as "Subordinated Indebtedness" under any separate Subordination
Agreement by and among a Borrower, Administrative Agent and another Person.
Notwithstanding the foregoing, the term "Subordinated Indebtedness" (unless
Required Lenders otherwise require) does not include indebtedness permitted
under Section 5.2.a or 5.2.b or (to the extent consistent with Section 5.5.b)
under Section 5.2.c or 5.2.d.
9.1.95. "Subsidiary" of any Person or entity means any Person as to
which such other Person or entity (a) directly or indirectly owns, controls or
holds 25% or more of the outstanding beneficial interest or (b) is otherwise
required in accordance with GAAP to be considered as part of a consolidated
organization.
9.1.96. "Tariff" means any tariff, rate schedule or similar document
that is either (a) required by law or applicable regulation to be filed with the
FCC or a State PUC or (b) permitted by law or applicable regulation so to be
filed and actually filed by any Borrower.
9.1.97. "Telecon Acquisition" means collectively, (a) the
acquisition by BOL Acquisition Co. III, Inc. of substantially all of the assets
of Telecon Communications Corporation, a New York corporation ("Telecon"),
pursuant to the Asset Purchase Agreement dated December 5, 1999 by and among
BiznessOnline, BOL Acquisition Co. III, Inc., Telecon and the shareholders of
Telecon, and (b) the simultaneous merger of Telesupport, Inc., a New York
corporation, into BOL Acquisition Co. II, Inc. pursuant to the Agreement and
Plan of Merger and Reorganization dated December 5, 1999 by and among
BiznessOnline, BOL Acquisition Co. II, Inc., Telesupport and the shareholders of
Telesupport, each under the terms and conditions set forth in such agreements
(other than the provisions permitting payment of $5,000,000 of the purchase
price of Telecon by promissory notes) and such other terms and conditions
reasonably acceptable to Lender.
9.1.98. "Term Loan Commitment" means the Commitment established
pursuant to Section 1.1 and Section 1.3.
9.1.99. "Term Loan Commitment Percentage" means, with respect to
each Lender, that portion of the total Term Loan Commitment as to which such
Lender is obligated.
9.1.100. "Term Loan Facility" means the term loan Facility as
described in Article 1.
9.1.101. "Term Loan Maturity Date" has the meaning set forth in
Section 1.1.2, as may be extended from time to time in Lenders' sole and
absolute discretion.
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9.1.102. "Term Loan Note" means any Note payable to the order of a
Lender prepared in accordance with Section 1.1.4, as may be amended, modified,
restated, replaced, supplemented, extended or renewed from time to time
hereafter.
9.1.103. "Total Charges" means, at the time of any determination,
the sum of the following items (without duplication) for Borrowers during the
relevant four consecutive fiscal quarter period:
a. The amount of Fixed Charges during such period, and
b. Plus the amount of all payments (principal, interest and
otherwise) made or required to be made on the
Subordinated Indebtedness during such period (but only
to the extent not already included under one of the
other categories of Total Charges), and
c. Plus the amount of federal and state income taxes paid
or required to be paid during such period (but only to
the extent not already included under one of the other
categories of Total Charges).
For purposes of this calculation, interest includes interest accrued under
Capital Leases, and principal includes principal obligations under Capital
Leases.
9.1.104. "Total Charge Coverage Ratio" means, at any time such ratio
is being computed, the ratio of "Pro Forma OCF" to "Total Charges" (for the
immediately preceding four fiscal quarters).
9.1.105. "UCC" means the Uniform Commercial Code as in effect in the
applicable jurisdiction.
9.1.106. "Warrant Agreement" means that certain Warrant Agreement
between BiznessOnline and MCG dated as of the date hereof, as amended from time
to time.
9.1.107. "Warrants" has the meaning set forth in Section 1.7.
9.2. Rules of Interpretation and Construction.
9.2.1. Plural; Gender. Unless otherwise expressly stated or the
context clearly indicates a different intention, then (as may be appropriate in
the particular context) (a) a singular number or noun used in any Loan Document
includes the plural, and a plural number or noun includes the singular, and (b)
the use of the masculine, feminine or neuter gender pronouns in any Loan
Document includes each and all genders.
9.2.2. Section and Schedule References. Unless otherwise expressly
stated or the context clearly indicates a different intention, then all
references to sections, paragraphs, clauses, schedules and exhibits in any Loan
Document are to be interpreted as references to sections, paragraphs, clauses,
schedules and exhibits of such Loan Document (rather than of some other Loan
Document). In addition, the words "herein", "hereof", "hereunder", "hereto" and
other words of
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similar import in any Loan Document refer to such Loan Document as a whole, and
not to any particular section, paragraph or clause in such Loan Document.
9.2.3. Titles and Headings. Unless otherwise expressly stated or the
context clearly indicates a different intention, then the various titles and
headings in the Loan Documents are inserted for convenience only and do not
affect the meaning or interpretation of such Loan Document or any provision
thereof.
9.2.4. "Including" and "Among Other" References. Unless otherwise
expressly stated or the context clearly indicates a different intention, then
all references in the Loan Documents to phrases containing or list preceded by
the words "include", "includes", "including", "among other", "among other
things" or other words or phrases of similar import are to be interpreted to
mean such "without limitation" (whether or not such additional phrase is
actually added). In other words, such words and phrases connote an illustrative
example or list rather than an exclusive example or list.
9.2.5. "Shall", "Will", "Must", "Can" and "May" References. Unless
otherwise expressly stated or the context clearly indicates a different
intention, then all references in the Loan Documents to the words "shall",
"will" and "must" (including, when modified by "not") are to be interpreted to
indicate mandatory actions or restrictions (as applicable), and all references
in the Loan Documents to the words "may" and "can" (unless modified by "not")
are to be interpreted to indicate permissive actions.
9.2.6. Time of Day References. Unless otherwise expressly stated or
the context clearly indicates a different intention, then all time of day
references in and restrictions imposed under the Loan Documents are to be
calculated using Eastern Time.
9.2.7. "Knowledge" of a Person. Unless otherwise expressly stated or
the context clearly indicates a different intention, then (a) all references to
the "knowledge," "awareness" or "belief" of any Person that is not a natural
person are to be interpreted to mean the knowledge, awareness or belief of
senior and executive management of such Person (and including the knowledge or
awareness of managers of limited liability companies and general partners of
partnerships), and (b) all representations qualified by the "knowledge,"
"awareness" or "belief" of a Person are to be interpreted to mean (unless a
different standard is specified) that such Person has conducted a commercially
reasonable inquiry and investigation prior to making such representation.
9.2.8. Successors and Assigns. Unless otherwise expressly stated or
the context clearly indicates a different intention, then all references to any
Person (including any Official Body) in any Loan Document are to be interpreted
as including (as applicable) such Person's successors, assigns, estate, heirs,
executors, administrators and personal representatives. Notwithstanding the
foregoing, no Borrower or other Obligor may assign or delegate any Loan Document
(or any right or obligation thereunder) except to the extent expressly permitted
hereunder or under such other Loan Document.
9.2.9. Modifications to Documents. Unless otherwise expressly stated
or the context clearly indicates a different intention, then all references to
any Loan Document or other agreement or instrument in any Loan Document are to
be interpreted as including all extensions,
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renewals, amendments, supplements, substitutions, replacements and waivers
thereto and thereof from time to time.
9.2.10. References to Laws and Regulations. Unless otherwise
expressly stated or the context clearly indicates a different intention, then
all references to any law, regulation, rule, order or policy in any Loan
Document are to be interpreted references to such law, regulation, rule or
policy (a) as implemented and interpreted from time to time by Official Bodies
with appropriate jurisdiction therefor, and (b) as amended, modified,
supplemented, replaced and repealed from time to time.
9.2.11. Financial and Accounting Terms. Unless otherwise expressly
stated or the context clearly indicates a different intention, financial and
accounting terms used in the foregoing definitions or elsewhere in the Loan
Documents shall be defined and determined in accordance with GAAP.
9.2.12. Conflicts Among Loan Documents. Unless otherwise expressly
stated or the context clearly indicates a different intention, then any
irreconcilable conflict between the terms and conditions of this Agreement and
the terms and conditions of any other Loan Document (other than a Note or any
warrant issued to any Lender) are to be resolved by having the terms and
conditions of this Agreement govern.
9.2.13. Independence of Covenants and Defaults. All covenants and
defaults contained in the Loan Documents shall be given independent effect. If a
particular action or condition is not permitted by any covenant in the Loan
Documents, then the fact that such action or condition would be permitted by an
exception to (or would otherwise be within the limitations of) another covenant
in the Loan Documents shall not avoid the occurrence or existence of a Default
if such action is taken or if such condition exists.
9.2.14. Administrative Agent. References in this Agreement and the
other Loan Documents to Administrative Agent shall mean either to Administrative
Agent in such capacity or (where appropriate) to Administrative Agent for the
benefit of Lenders. Unless otherwise indicated in this Agreement or another Loan
Document, all Collateral held and all payments received by Administrative Agent
are deemed to be held and received, respectively, for the benefit of Lenders.
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ARTICLE 10: MISCELLANEOUS
10.1. Indemnification, Reliance and Assumption of Risk. Without limiting
any other indemnification in any Loan Document, each Borrower (jointly and
severally) hereby agrees to defend Administrative Agent and each Lender (and
their directors, officers, employees, agents, counsels and Affiliates) from, and
hold each of them harmless against, any and all losses, liabilities, claims,
damages, interests, judgments, or costs (including fees and disbursements of
counsel) incurred by any of them arising out of or in any way connected with any
Loan Document, except for losses resulting directly and exclusively from
Administrative Agent's or any Lender's own gross negligence, willful misconduct
or fraud. In addition, each Borrower will reimburse and (jointly and severally)
indemnify Administrative Agent and each Lender for all costs and losses
resulting from the following: (1) any failure or refusal by any Borrower or by
any Affiliate of any Borrower to provide any requested assistance or cooperation
in connection with any attempt by Administrative Agent or any Lender to
liquidate any Collateral in the event of any Event of Default and/or any attempt
by Administrative Agent or any Lender to otherwise exercise its rights
hereunder, and (2) any misrepresentation, gross negligence, fraud or willful
misconduct by any Borrower (or any of its employees or officers), or any other
person or entity pledging Collateral hereunder. Moreover, with respect to any
Advance Request or other communication between any Borrower and Administrative
Agent and/or Lenders hereunder and all other matters and transactions in
connection therewith, each Borrower hereby irrevocably authorizes Administrative
Agent and each Lender to accept, rely upon, act upon and comply with any verbal
or written instructions, requests, confirmations and orders of any Authorized
Officer of any Borrower. Each Borrower acknowledges that the transmissions of
any such instruction, request, confirmation, order or other communication
involves the possibility of errors, omissions, mistakes and discrepancies, and
each Borrower agrees to adopt such internal measures and operational procedures
to protect its interest. By reason thereof, each Borrower hereby assumes all
risk of loss and responsibility for -- and hereby releases and discharges
Administrative Agent and each Lender from any and all risk of loss and
responsibility for, and agrees to indemnify, reimburse on demand and hold
Administrative Agent and each Lender harmless from -- any and all claims,
actions, damages, losses, liability and costs by reason of or in any way related
to (a) Administrative Agent's or any Lender's accepting, relying and acting
upon, complying with or observing any such instructions, requests, confirmations
or orders from or on behalf of any such Authorized Officer, and (b) any such
errors, omissions, mistakes and discrepancies by (or otherwise resulting from or
attributable to the actions or inactions of) any Authorized Officer or any
Borrower; provided, however, no Borrower assumes hereby the risk of any
foreseeable actual loss resulting directly and exclusively from Administrative
Agent's or any Lender's own gross negligence, fraud or willful misconduct. Each
Borrower's obligations provided for in this Section will survive any termination
of this Agreement, and the repayment of the outstanding balances hereunder.
10.2. Assignments and Participations. No Loan Document may be assigned (in
whole or in part) by any Borrower without the prior written consent of each
Lender. Notwithstanding any other provision of any Loan Document, without
receiving any consent of any Borrower, each Lender at any time and from time to
time may syndicate, participate or otherwise transfer, pledge or assign all (or
any proportionate part of) its rights and obligations under any of the Loan
Documents (or any indebtedness evidenced thereby) to any Person. Lenders
(through Administrative Agent) will make reasonable efforts to notify Borrowers
of any such absolute transfer or assignment within twenty (20) Business Days
thereafter; however, a failure to so notify will in no way impair any rights of
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Administrative Agent or Lenders or any participant, transferee or assignee. Upon
execution and delivery of an appropriate instrument between any such
participant, transferee or assignee and an assigning Lender, then (at
Administrative Agent's request) such participant, transferee or assignee will
become a Lender party to this Agreement and will have all the rights and
obligations of a Lender as set forth in such instrument. At Administrative
Agent's request, each Borrower will execute (or re-execute) and deliver (or
otherwise obtain) any documents necessary to reflect or implement any such
participation, transfer or assignment (including replacement promissory notes
and any requested letters authorizing such participant, transferee or assignee
to rely on existing certificates and opinions) and will otherwise fully
cooperate in any such syndication process. Attached as Exhibit 10.2 is a form of
Assignment and Assumption Agreement, a substantially similar version of which is
to be used in connection with assignment of Lenders hereunder.
10.3. No Waiver; Delay. To be effective, any waiver by Lenders must be
expressed in a writing executed by Administrative Agent (with the approval of
Required Lenders). Once a Default occurs under the Loan Documents, then such
Default will continue to exist until it either is cured (to the extent
specifically permitted) in accordance with the Loan Documents or is otherwise
expressly waived by Lenders (in their sole and absolute discretion) in writing;
and once an Event of Default occurs under the Loan Documents, then such Event of
Default will continue to exist until it is expressly waived by Lenders (in their
sole and absolute discretion) in writing. If Administrative Agent or any Lender
waives any power, right or remedy arising hereunder or under any applicable law,
then such waiver will not be deemed to be a waiver (a) upon the later occurrence
or recurrence of any events giving rise to the earlier waiver or (b) as to any
other Obligor. No failure or delay by Administrative Agent or any Lender to
insist upon the strict performance of any term, condition, covenant or agreement
of any of the Loan Documents, or to exercise any right, power or remedy
hereunder, will constitute a waiver of compliance with any such term, condition,
covenant or agreement, or preclude Administrative Agent or any Lender from
exercising any such right, power, or remedy at any later time or times. By
accepting payment after the due date of any amount payable under this Agreement
or any other Loan Document, neither Administrative Agent nor any Lender will be
deemed to waive the right either to require prompt payment when due of all other
amounts payable under this Agreement or any other Loan Document or to declare an
Event of Default for failure to effect such prompt payment of any such other
amount. The remedies provided herein are cumulative and not exclusive of each
other, the remedies provided by law, and the remedies provided by the other Loan
Documents.
10.4. Modifications and Amendments. Except as otherwise expressly provided
in this Agreement, no modification or amendment to any Loan Document will be
effective unless made in a writing signed by appropriate officers of
Administrative Agent (with the consent of the Required Lenders) and each
Borrower. Notwithstanding the foregoing, to the extent that any such
modification or amendment attempts to implement any of the following, then such
amendment or modification must approved by all Lenders:
a. Increase the Commitment Percentage of any Lender, or
b. Alter any provision that effectively reduces that interest
rate applicable to the Loans, or
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c. Reduce the amount of any fees due to Lenders under any Loan
Document (other than fees payable to the Administrative Agent
for its own account), or
d. Reduce the amount of any payment (whether for principal,
interest or any fee, other than a fee payable to the
Administrative Agent for its own account), or
e. Postpone or extend the Maturity Date for any Facility or any
scheduled payment date (whether for principal, interest or any
fee, other than a fee payable to the Administrative Agent for
its own account), or
f. Change the definition of "Pro Rata" or "Required Lenders" or
otherwise change the number or percentage of Lenders that are
required to take or approve (or direct the Administrative
Agent to take) any action under the Loan Documents, or
g. Release or discharge any Borrower as a "Borrower" under the
Loan Documents or permit any Borrower to assign to another
Person any of its rights or obligations under the Loan
Documents, or
h. Release all or any part of any guaranty of any part of the
Indebtedness under the Loan Documents or any security interest
in or pledge of any Collateral (except as otherwise already
expressly authorized under the Loan Documents), or
i. Amend this Section.
In addition, no provision of any Loan Document relating to the rights or
obligations of the Administrative Agent may be modified or amended without the
consent of the Administrative Agent.
10.5. Disclosure of Information to Third Parties. Administrative Agent and
each Lender will employ reasonable procedures to treat as confidential all
written, non-public information delivered to Administrative Agent or such Lender
pursuant to this Agreement concerning the performance, operations, assets,
structure and business plans of Borrowers that is conspicuously designated by
Borrowers as confidential information. While other or different confidentiality
procedures may be employed by Administrative Agent or any Lender, the actual
procedures employed by Administrative Agent and each Lender for this purpose
will be conclusively deemed to be reasonable if they are at least as protective
of such information as the procedures generally employed by Administrative Agent
and such Lender to safeguard the confidentiality of Administrative Agent's and
Lenders' own confidential information. Notwithstanding the foregoing,
Administrative Agent and each Lender may disclose any information concerning any
Borrower in Administrative Agent's or such Lender's possession from time to time
(a) to permitted participants, transferees, assignees, pledgees and investors
(including prospective participants, transferees, assignees, pledgees and
investors), but subject to a reasonable confidentiality agreement regarding any
non-public confidential information thereby disclosed, and (b) in response to
credit inquiries consistent with general banking practices, and (c) to any
federal or state regulator of Administrative Agent or such Lender, and (d) to
Administrative Agent's or such Lender's Affiliates, employees, legal counsel,
appraisers, accountants, agents and investors, and (e) to any Person pursuant to
compulsory judicial process, and (f) to any judicial or arbitration forum in
connection with enforcing the Loan Documents or defending any action based upon
the Loan Documents or the relationship
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between Administrative Agent, Lenders, and Borrowers, and (g) to any other
Person with respect to the public or non-confidential portions of any such
information. Moreover, Administrative Agent and each Lender (without any
compensation, remuneration or notice to Borrowers) may also include operational
and performance and structural information and data relating to Borrowers in
compilations, reports and data bases assembled by Administrative Agent or such
Lender (or their Affiliates) and used to conduct, support, assist in and
validate portfolio, industry and credit research and analysis for itself and
other Persons; provided, however, that neither Administrative Agent nor any
Lender may thereby disclose to other Persons any information relating to
Borrowers in a manner that is attributable to Borrowers unless (1) such
disclosure is permitted under the standards outlined above in this Section or
(2) Borrowers otherwise separately consent thereto (which consent may not be
unreasonably withheld). Notwithstanding the foregoing, Administrative Agent and
Lenders agree to comply with applicable federal securities laws and regulations
regarding dissemination, use and/or disclosure of non-public information.
10.6. Binding Effect and Governing Law. This Agreement and the other Loan
Documents have been delivered by Borrowers and the other Obligors and have been
received by Administrative Agent in the Commonwealth of Virginia. This Agreement
and all documents executed hereunder are binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns. This
Agreement and all documents executed hereunder are governed as to their
validity, interpretation, construction and effect by the laws of the
Commonwealth of Virginia (without giving effect to the conflicts of law rules of
Virginia).
10.7. Notices. Any notice, request, consent, waiver or other communication
required or permitted under or in connection with the Loan Documents will be
deemed satisfactorily given if it is in writing and is delivered either
personally to the addressee thereof, or by prepaid registered or certified U.S.
mail (return receipt requested), or by a nationally recognized commercial
courier service with next-day delivery charges prepaid, or by telegraph, or by
facsimile (voice confirmed), or by any other reasonable means of personal
delivery to the party entitled thereto at its respective address set forth
below:
If to any Borrower [Party Entitled to Notice]
or its Affiliates: c/o XxxxxxxXxxxxx.xxx, Inc.
0000 Xxxxx 00
X.X. Xxx 0000
Xxxx, Xxx Xxxxxx 00000
Attention: President
Facsimile: (000) 000-0000
With a copy to the following listed counsel or such other counsel as may
be designated by Borrowers from time to time (and which notice shall not
constitute notice to Borrowers and failure to give such notice shall not
affect the effectiveness of notice to Borrowers):
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Xxxxx & Xxxxxxx Ltd.
000 Xxxxx Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxx Xxxxxxx, Esquire
Facsimile: (000) 000-0000
If to Administrative: MCG Finance Corporation
Agent or Lenders: 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: Loan Administration
Facsimile: (000) 000-0000
With a copy to the following listed counsel or such other counsel as may
be designated by Administrative Agent from time to time (and which notice
shall not constitute notice to Administrative Agent or any Lender and
failure to give such notice shall not affect the effectiveness of notice
to Administrative Agent or Lenders):
Xxxxx X. Xxxxx, Esquire
Xxxxx Xxxx LLP
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Any party to a Loan Document may change its address or facsimile number for
notice purposes by giving notice thereof to the other parties to such Loan
Document in accordance with this Section, provided that such change shall not be
effective until 2 calendar days after notice of such change. All such notices
and other communications will be deemed given and effective (a) if by mail, then
upon actual receipt or 5 calendar days after mailing as provided above
(whichever is earlier), or (b) if by facsimile, then upon successful transmittal
to such party's designated number, or (c) if by telegraph, then upon actual
receipt or 2 Business Days after delivery to the telegraph company (whichever is
earlier), or (d) if by nationally recognized commercial courier service, then
upon actual receipt or 2 Business Days after delivery to the courier service
(whichever is earlier), or (e) if otherwise delivered, then upon actual receipt.
For any and all purposes related to giving and receiving notices and
communications between any Borrower and Administrative Agent and Lenders under
any Loan Document, each Borrower hereby irrevocably appoints BiznessOnline (and
each Authorized Officer thereof ) as its agent to whom Administrative Agent and
each Lender may give and from whom Administrative Agent and each Lender may
receive all such notices and communications, and Administrative Agent and each
Lender is entitled to rely upon (and treat as being properly authorized by
Borrowers) any verbal or written notices or communications purportedly received
from (or that Administrative Agent or such Lender believes in good faith to be
received from) such Authorized Officer.
10.8. Relationship with Prior Agreements. This Agreement completely and
fully supersedes all oral agreements and all other and prior written agreements
by and among Borrowers and Administrative Agent and any Lender concerning the
terms and conditions of this credit arrangement.
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10.9. Severability. If fulfillment of any provision of or any transaction
related to any Loan Document at the time performance is due involves
transcending the limit of validity prescribed by applicable law, then ipso
facto, the obligation to be fulfilled shall be reduced to the limit of such
validity. If any clause or provision of this Agreement operates or would
prospectively operate to invalidate this Agreement or any other Loan Document in
whole or in part, then such clause or provision only shall be void (as though
not contained herein or therein), and the remainder of this Agreement or such
other Loan Document shall remain operative and in full force and effect;
provided, however, if any such clause or provision pertains to the repayment of
any indebtedness hereunder, then the occurrence of any such invalidity shall
constitute an immediate Event of Default hereunder.
10.10. Termination and Survival. All representations, warranties,
covenants and other agreements of any Obligor contained in any Loan Document or
any other documentation required thereunder will survive the execution and
delivery of the Loan Documents and the funding of the Advances hereunder and
will continue in full force and effect until terminated in accordance with this
Agreement. Upon (a) indefeasible receipt by Administrative Agent of the entire
indebtedness and all other amounts then due or owing to Administrative Agent or
any Lender under the Loan Documents (without any condition, deduction, offset,
netting, counterclaim or reservation of rights), and (b) receipt by
Administrative Agent of an instruction from Borrowers to terminate and cancel
the Loan Documents, all Commitments and all Facilities thereunder (together with
an acknowledgment that neither Administrative Agent nor any Lender will have any
further obligations or liabilities under or in connection with any Loan
Document), then Administrative Agent (at the written request and expense of
Borrowers) will terminate and cancel all Loan Documents (other than the waivers,
reinstatement rights, and reimbursement and indemnification protections in favor
of Administrative Agent and each Lender under the Loan Documents, which
provisions shall survive any such termination of the Loan Documents).
10.11. Reinstatement. To the maximum extent not prohibited by applicable
law, this Agreement and the other Loan Documents (and the indebtedness hereunder
and Collateral therefor) will be reinstated and the indebtedness correspondingly
increased (as though such payment(s) had not been made) if at any time any
amount received by Administrative Agent or any Lender in respect of any Loan
Document is rescinded or must otherwise be restored, refunded or returned by
Administrative Agent or such Lender to Borrower or any other Person (a) upon or
as a result of the insolvency, bankruptcy, dissolution, liquidation or
reorganization of any Borrower or any other Person, or (b) upon or as a result
of the appointment of any receiver, intervenor, conservator, trustee or similar
official for any Borrower or any other Person or for any substantial part of the
assets of any Borrower or any other Person, or (c) for any other reason.
10.12. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all the signatures on such counterparts
appeared on one document. Each such counterpart will be deemed to be an original
but all counterparts together will constitute one and the same instrument.
10.13. Waiver of Suretyship Defenses. Each Borrower hereby waives any and
all defenses and rights of discharge based upon suretyship or impairment of
collateral (including lack of attachment or perfection with respect thereto)
that it may now have or may hereafter acquire with respect to Administrative
Agent or any Lender or any of its obligations hereunder, under any Loan
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Document or under any other agreement that it may have or may hereafter enter
into with Administrative Agent or any Lender.
10.14. Waiver of Liability. Each Borrower (a) agrees that neither
Administrative Agent nor any Lender (nor any of their directors, officers,
employees or agents) shall have any liability to any Borrower (whether sounding
in tort, contract or otherwise) for losses or costs suffered or incurred by any
Borrower in connection with or in any way related to the transactions
contemplated or the relationship established by any Loan Document, or any act,
omission or event occurring in connection herewith or therewith, except for
foreseeable actual losses resulting directly and exclusively from Administrative
Agent's or such Lender's own gross negligence, willful misconduct or fraud and
(b) waives, releases and agrees not to xxx upon any claim against Administrative
Agent or any Lender (or their directors, officers, employees or agents) whether
sounding in tort, contract or otherwise, except for claims for foreseeable
actual losses resulting directly and exclusively from Administrative Agent's or
such Lender's own gross negligence, willful misconduct or fraud. Moreover,
whether or not such damages are related to a claim that is subject to the waiver
effected above and whether or not such waiver is effective, neither
Administrative Agent nor any Lender (nor their directors, officers, employees or
agents) shall have any liability with respect to (and each Borrower hereby
waives, releases and agrees not to xxx upon any claim for) any special,
indirect, consequential, punitive or non-foreseeable damages suffered by any
Borrower in connection with or in any way related to the transactions
contemplated or the relationship established by any Loan Document, or any act,
omission or event occurring in connection herewith or therewith.
10.15. Forum Selection; Consent to Jurisdiction. Any litigation in
connection with or in any way related to any Loan Document, or any course of
conduct, course of dealing, statements (whether verbal or written), actions or
inactions of Administrative Agent, any Lender or any Borrower will be brought
and maintained exclusively in the courts of the Commonwealth of Virginia or in
the United States District Court for the Eastern District of Virginia; provided,
however, that any suit seeking enforcement against any Borrower, any Collateral
or any other property may also be brought (at Administrative Agent's and
Lenders' option) in the courts of any other jurisdiction where such Collateral
or other property may be found or where Administrative Agent or any Lender may
otherwise obtain personal jurisdiction over such Borrower. Each Borrower hereby
expressly and irrevocably submits to the jurisdiction of the courts of the
Commonwealth of Virginia and of the United States District Court for the Eastern
District of Virginia for the purpose of any such litigation as set forth above
and irrevocably agrees to be bound by any final and non-appealable judgment
rendered thereby in connection with such litigation. Each Borrower further
irrevocably consents to the service of process by registered or certified mail,
postage prepaid, or by personal service within or outside the Commonwealth of
Virginia. Each Borrower hereby expressly and irrevocably waives, to the fullest
extent permitted by law, any objection which it may have or hereafter may have
to the laying of venue of any such litigation brought in any such court referred
to above and any claim that any such litigation has been brought in an
inconvenient forum. To the extent that any Borrower has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution or otherwise) with respect
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to itself or its property, then such Borrower hereby irrevocably waives such
immunity in respect of its obligations under this Agreement.
10.16. Waiver of Jury Trial. Administrative Agent, each Lender and each
Borrower each hereby knowingly, voluntarily and intentionally waives any rights
it may have to a trial by jury in respect of any litigation (whether as claim,
counter-claim, affirmative defense or otherwise) in connection with or in any
way related to any of the Loan Documents, or any course of conduct, course of
dealing, statements (whether verbal or written), actions or inactions of
Administrative Agent, any Lender or any Borrower. Each Borrower acknowledges and
agrees (a) that it has received full and sufficient consideration for this
provision (and each other provision of each other Loan Document to which it is a
party), and (b) that it has been advised by legal counsel in connection
herewith, and (c) that this provision is a material inducement for
Administrative Agent and each Lender entering into the Loan Documents and
funding Advances thereunder.
[BALANCE OF PAGE INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the undersigned, by their duly authorized
officers, have executed this Credit Facility Agreement, as an instrument under
seal (whether or not any such seals are physically attached hereto), as of the
day and year first above written.
ATTEST: XXXXXXXXXXXXX.XXX, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: GLOBAL 2000 COMMUNICATIONS, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ALBANYNET, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: WEBWAY INTERNET, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ASCENT NETWORKING, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: CYBERZONE, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: CARAVELA SOFTWARE, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: NECANET, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: PRIME COMMUNICATION
SYSTEMS, INCORPORATED
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: INFOBOARD, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BORG INTERNET SERVICES, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ULSTERNET, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. II, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. III, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. VIII, INC.
By: By: /s/ Xxxx X. Xxxxx
-------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
WITNESS: MCG FINANCE CORPORATION
(Administrative Agent)
By: /s/ Xxxxxx Xxxxxx
----------------------------------- -------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Operating Officer and
Chief Financial Officer
