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EXHIBIT 10.72
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CREDIT AGREEMENT
dated as of
January 7, 2000
among
iXL ENTERPRISES, INC.,
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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CHASE SECURITIES INC.,
as Lead Arranger and Book Manager
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First Union National Bank
as Syndication Agent
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
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SECTION 1.01. Defined Terms.............................................................................1
SECTION 1.02. Classification of Loans and Borrowings...................................................25
SECTION 1.03. Terms Generally..........................................................................25
SECTION 1.04. Accounting Terms; GAAP...................................................................25
ARTICLE II
The Credits
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SECTION 2.01. Commitments..............................................................................26
SECTION 2.02. Loans and Borrowings.....................................................................26
SECTION 2.03. Requests for Borrowings..................................................................26
SECTION 2.04. Letters of Credit........................................................................27
SECTION 2.05. Funding of Borrowings....................................................................32
SECTION 2.06. Interest Elections.......................................................................33
SECTION 2.07. Termination and Reduction of Commitments.................................................34
SECTION 2.08. Repayment of Loans; Evidence of Debt.....................................................35
SECTION 2.09. Prepayment of Loans......................................................................36
SECTION 2.10. Fees.....................................................................................37
SECTION 2.11. Interest.................................................................................38
SECTION 2.12. Alternate Rate of Interest...............................................................39
SECTION 2.13. Increased Costs..........................................................................39
SECTION 2.14. Break Funding Payments...................................................................40
SECTION 2.15. Taxes....................................................................................41
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.........................................................42
SECTION 2.17. Mitigation Obligations; Replacement of Lenders...........................................44
ARTICLE III
Representations and Warranties
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SECTION 3.01. Organization; Powers.....................................................................45
SECTION 3.02. Authorization; Enforceability............................................................45
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SECTION 3.03. Governmental Approvals; No Conflicts.....................................................46
SECTION 3.04. Financial Condition; No Material Adverse Change..........................................46
SECTION 3.05. Properties...............................................................................47
SECTION 3.06. Litigation and Environmental Matters.....................................................47
SECTION 3.07. Compliance with Laws and Agreements......................................................48
SECTION 3.08. Investment and Holding Company Status....................................................48
SECTION 3.09. Taxes....................................................................................48
SECTION 3.10. ERISA....................................................................................48
SECTION 3.11. Disclosure...............................................................................49
SECTION 3.12. Subsidiaries.............................................................................49
SECTION 3.13. Insurance................................................................................49
SECTION 3.14. Labor Matters............................................................................49
SECTION 3.15. Solvency.................................................................................49
SECTION 3.16. Security Documents.......................................................................50
SECTION 3.17. Year 2000................................................................................51
ARTICLE IV
Conditions
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SECTION 4.01. Effective Date...........................................................................51
SECTION 4.02. Each Credit Event........................................................................54
ARTICLE V
Affirmative Covenants
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SECTION 5.01. Financial Statements and Other Information...............................................55
SECTION 5.02. Notices of Material Events...............................................................57
SECTION 5.03. Information Regarding Collateral.........................................................58
SECTION 5.04. Existence; Conduct of Business...........................................................59
SECTION 5.05. Payment of Obligations...................................................................59
SECTION 5.06. Maintenance of Properties................................................................59
SECTION 5.07. Insurance................................................................................59
SECTION 5.08. Books and Records; Inspection and Collateral
Review Rights...............................................................59
SECTION 5.09. Compliance with Laws.....................................................................60
SECTION 5.10. Use of Proceeds and Letters of Credit....................................................60
SECTION 5.11. Additional Subsidiaries..................................................................61
SECTION 5.12. Further Assurances.......................................................................61
SECTION 5.13. Federal Reserve Regulations..............................................................62
SECTION 5.14. Bank Account.............................................................................62
ARTICLE VI
Negative Covenants
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SECTION 6.01. Indebtedness and Preferred Stock.........................................................63
SECTION 6.02. Liens....................................................................................64
SECTION 6.03. Fundamental Changes......................................................................65
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions................................................................66
SECTION 6.05. Asset Sales..............................................................................68
SECTION 6.06. Sale and Lease-Back Transactions.........................................................68
SECTION 6.07. Hedging Agreements.......................................................................69
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness................................................................69
SECTION 6.09. Transactions with Affiliates.............................................................70
SECTION 6.10. Restrictive Agreements...................................................................70
SECTION 6.11. Amendment of Material Documents..........................................................71
SECTION 6.12. Subsidiaries.............................................................................71
SECTION 6.13. Capital Expenditures.....................................................................71
SECTION 6.14. Minimum Consolidated EBITDA..............................................................71
SECTION 6.15. Total Debt to Consolidated Net Worth.....................................................72
SECTION 6.16. Fiscal Year..............................................................................72
ARTICLE VII
Events of Default.......................................................................................71
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ARTICLE VIII
The Administrative Agent................................................................................74
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ARTICLE IX
Miscellaneous
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SECTION 9.01. Notices..................................................................................78
SECTION 9.02. Waivers; Amendments......................................................................78
SECTION 9.03. Expenses; Indemnity; Damage Waiver.......................................................79
SECTION 9.04. Successors and Assigns...................................................................81
SECTION 9.05. Survival.................................................................................84
SECTION 9.06. Counterparts; Integration; Effectiveness.................................................84
SECTION 9.07. Severability.............................................................................84
SECTION 9.08. Right of Set-off.........................................................................84
SECTION 9.09. Governing Law; Jurisdiction; Consent to Service
of Process..................................................................85
SECTION 9.10. WAIVER OF JURY TRIAL.....................................................................86
SECTION 9.11. Headings.................................................................................86
SECTION 9.12. Confidentiality..........................................................................86
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SECTION 9.13. Interest Rate Limitation.................................................................87
SCHEDULES:
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Schedule 2.01 -- Commitments
Schedule 3.04 -- Contingent Liabilities
Schedule 3.05 -- Real Property
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 3.13 -- Insurance
Schedule 4.01 -- Non-Pledgor Subsidiary Loan Parties
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.04 -- Existing Investments
Schedule 6.05 -- Asset Sales
Schedule 6.10 -- Existing Restrictions
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of Xxxxxxxxx & Xxxxxxx, Counsel to the Loan Parties
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Indemnity, Subrogation and Contribution Agreement
Exhibit E -- Form of Pledge Agreement
Exhibit F -- Form of Security Agreement
Exhibit G -- Form of Borrowing Base Certificate
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CREDIT AGREEMENT dated as of January 7,
2000, among iXL ENTERPRISES, INC., the LENDERS party
hereto, THE CHASE MANHATTAN BANK, as Administrative
Agent and Collateral Agent and FIRST UNION NATIONAL
BANK as Syndication Agent.
The Borrower (such term and each other capitalized term used
herein having the meaning given in Article I) has requested that the Lenders
extend credit to the Borrower in the form of Revolving Loans at any time, and
from time to time prior to the Revolving Maturity Date, in an aggregate
principal amount not in excess of $50,000,000. The proceeds of the Revolving
Loans will be used to refinance outstanding indebtedness of the Borrower and
for other general purposes of the Borrower including Permitted Acquisitions and
capital expenditures permitted hereunder.
The Lenders are willing to extend such credit to the Borrower
on the terms and subject to the conditions set forth herein. Accordingly, the
parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
bearing interest at a rate determined by reference to the Alternate Base Rate.
"Account" means any right to payment for goods sold or leased
or for services rendered, whether or not earned by performance.
"Account Debtor" means, with respect to any Account, the
obligor with respect to such Account.
"Accounts Receivable Subsidiary" means any active, wholly
owned operating Subsidiary of the Borrower that is also a Subsidiary Loan Party
and is organized under the laws of any state of the United States or any
territory thereof or the District of Columbia.
"Adjusted LIBO Rate" means, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%)
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equal to (a) the LIBO Rate for such Interest Period multiplied by (b) the
Statutory Reserve Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its
capacity as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person,
another Person that directly, or indirectly through one or more intermediaries,
Controls or is Controlled by or is under common Control with the Person
specified.
"Alternate Base Rate" means, for any day, a rate per annum
equal to the greater of (a) the Prime Rate in effect on such day, and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. Any change
in the Alternate Base Rate due to a change in the Prime Rate or the Federal
Funds Effective Rate shall be effective from and including the effective date
of such change in the Prime Rate or the Federal Funds Effective Rate,
respectively.
"AppGeneSys" means AppGeneSys, Inc., a wholly owned
subsidiary of iXL Memphis, Inc.
"Applicable Percentage" means, with respect to any Revolving
Lender, the percentage of the total Revolving Commitments represented by such
Lender's Revolving Commitment. If the Revolving Commitments have terminated or
expired, the Applicable Percentages shall be determined based upon the
Revolving Commitments most recently in effect, giving effect to any
assignments.
"Applicable Rate" means, for any day a rate of (a) 1.75% per
annum, in the case of an ABR Loan, or (b) 2.75% per annum, in the case of a
Eurodollar Loan; provided that if, on the most recent determination date (as
set forth below)(i) Consolidated EBITDA for the period of four consecutive
fiscal quarters ending on the last day of the fiscal quarter most recently
ended is equal to or greater than $75,000,000 and (ii) the ratio of Total Debt
to Consolidated Net Worth on the last day of such fiscal quarter is equal to or
less than .05 to 1.00, the "Applicable Rate" shall be a rate of (A) 1.50% per
annum, in the case of an ABR Loan, or (B) 2.50% per annum, in the case of a
Eurodollar Loan, as set forth below.
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For purposes of the foregoing, (i) the ratio of Total Debt to
Consolidated Net Worth and the amount of Consolidated EBITDA for a period of
four consecutive fiscal quarters shall be determined as of the end of each
fiscal quarter of the Borrower's fiscal year based upon the Borrower's
consolidated financial statements delivered pursuant to Section 5.01(a) or (b)
and (ii) any change in the Applicable Rate resulting from a change in
Consolidated EBITDA and the ratio of Total Debt to Consolidated Net Worth shall
be effective during the period commencing on and including the date of delivery
to the Administrative Agent of such consolidated financial statements
indicating such change and ending on the date immediately preceding the
effective date of the next such change; provided that the Applicable Rate shall
be deemed to be the rate set forth in clause(a) or (b) above, as the case may
be, (A) at any time that an Event of Default has occurred and is continuing or
(B) at the option of the Administrative Agent or at the request of the Required
Lenders if the Borrower fails to deliver the consolidated financial statements
required to be delivered by it pursuant to Section 5.01(a) or (b), during the
period from the expiration of the time for delivery thereof until such
consolidated financial statements are delivered.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 9.04), and accepted by the
Administrative Agent, in the form of Exhibit A or any other form approved by
the Administrative Agent.
"Attributable Debt" means, on any date, in respect of any
lease of the Borrower or any Subsidiary entered into as part of a sale and
leaseback transaction subject to Section 6.06, (i) if such lease is a Capital
Lease Obligation, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, and (ii)
if such lease is not a Capital Lease Obligation, the capitalized amount of the
remaining lease payments under such lease that would appear on a balance sheet
of such Person prepared as of such dated in accordance with GAAP if such lease
were accounted for as a Capital Lease Obligation.
"Billed Receivable Availability" means 75% of Eligible Billed
Accounts Receivable.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means iXL Enterprises, Inc., a Delaware
corporation.
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"Borrowing" means Loans of the same Type, made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"Borrowing Base" means, an amount equal to the sum, without
duplication of (i) the Billed Receivable Availability, (ii) the Unbilled
Receivable Availability, and (iii) 25% of the Video Equipment Valuation. The
Borrowing Base shall be computed as of the end of each fiscal month and at such
other times as may be reasonably requested by the Collateral Agent; provided
that the Borrowing Base in effect at any time shall be determined by reference
to the most recent Borrowing Base Certificate delivered to the Administrative
Agent, absent any error in such Borrowing Base Certificate. Standards for
calculation of the Borrowing Base may be fixed from time to time solely by the
Administrative Agent in the exercise of its reasonable judgment, with any
changes in such standards to be effective 30 days after delivery of notice
thereof to the Borrower; provided, however that the Administrative Agent shall
obtain the prior written consent of the Required Lenders to any such change
with has the effect of increasing the amount of the Borrowing Base.
"Borrowing Base Certificate" means a certificate in the form
of Exhibit G or any other form approved by the Administrative Agent, together
with all attachments contemplated thereby.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Budgeted Amount" means $75,000,000.
"Business Day" means any day that is not a Saturday, Sunday
or other day on which commercial banks in New York City are authorized or
required by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
"Capital Expenditures" means, for any period, (a) the
additions to property, plant and equipment and other capital expenditures of
the Borrower and its consolidated Subsidiaries (other than the CFN
Subsidiaries, the iXL Ventures Subsidiaries and the Joint Venture Subsidiaries)
that are (or would be) set forth in a consolidated statement of cash flows of
the Borrower for such period prepared in accordance with GAAP and (b) Capital
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Lease Obligations incurred by the Borrower and its consolidated Subsidiaries
(other than the CFN Subsidiaries, the iXL Ventures Subsidiaries and the Joint
Venture Subsidiaries) during such period.
"Capital Lease Obligations" of any Person means the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"CB Capital" means CB Capital Investors, L.P.
"CERCLA" means the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. ' 9601 et seq.
"Change in Control" means, (a) the acquisition of ownership,
directly or indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the rules of the
Securities and Exchange Commission thereunder as in effect on the date hereof)
other than the Equity Interest Holders of Equity Interests representing more
than 25% of the aggregate ordinary voting power represented by the issued and
outstanding Equity Interests of the Borrower or (b) occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Borrower
by Persons who were neither (i) nominated by the board of directors of the
Borrower nor (ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Effective Date or (c) compliance by any Lender or the
Issuing Bank (or, for purposes of Section 2.13(b), by any lending office of
such Lender or by such Lender's or the Issuing Bank's holding company, if any)
with any request, guideline or directive (whether or not having the force of
law) of any Governmental Authority made or issued after the Effective Date.
"Chase Account" means the Collateral Proceeds Account,
account number 323142168, held at The Chase Manhattan Bank.
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"CFN" means Consumer Financial Network, Inc., a Delaware
corporation, 77% of the outstanding Equity Interests of which are, on the date
hereof, owned by the Borrower.
"CFN Subsidiaries" means CFN and its subsidiaries.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time.
"Collateral" means any and all "Collateral", as defined in
any applicable Security Document.
"Collateral Agent" means The Chase Manhattan Bank, in its
capacity as collateral agent for the Secured Parties.
"Collateral Proceeds Account" means the account held at The
Chase Manhattan Bank, as defined in the Security Agreement.
"Commitment" means a Revolving Commitment.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period, plus, without duplication and to the extent deducted
from revenues in determining Consolidated Net Income, the sum of (a) the
aggregate amount of Consolidated Interest Expense for such period, (b) the
aggregate amount of letter of credit fees paid during such period, (c) the
aggregate amount of income tax expense for such period, (d) all amounts
attributable to depreciation and amortization for such period, (e) all
extraordinary charges during such period, (f) all non-cash expenses resulting
from the grant of stock options to management personnel of the Borrower
pursuant to a written plan or agreement and (g) all non-cash expenses resulting
from the write-off of in-process research and development incurred as a result
of the consummation of a Permitted Acquisition, and minus, without duplication
and to the extent added to revenues in determining Consolidated Net Income for
such period, all extraordinary gains during such period, all as determined on a
consolidated basis with respect to the Borrower and its Subsidiaries in
accordance with GAAP.
"Consolidated Interest Expense" means, for any period, the
interest expense, both expensed and capitalized (including the interest
component in respect of Capital Lease Obligations), accrued or paid by the
Borrower and its Subsidiaries (other than the CFN Subsidiaries, the iXL
Ventures Subsidiaries and the Joint Venture Subsidiaries) during such period,
determined on a consolidated basis in accordance with GAAP.
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"Consolidated Net Worth" means, at any date, on a
consolidated basis for the Borrower and its Subsidiaries, (a) the sum of (i)
common stock taken at par or stated value, (ii) preferred stock taken at its
liquidation value, (iii) capital surplus relating to common stock, (iv)
retained earnings (or deficit) minus (b) the sum of (i) treasury stock and (ii)
any write-up in the book value of any asset resulting from a revaluation
thereof, all determined in accordance with GAAP and after giving effect to all
adjustments required thereby.
"Consolidated Net Income" means, for any period, net income
or loss of the Borrower and its Subsidiaries (other than the CFN Subsidiaries,
the iXL Ventures Subsidiaries and the Joint Venture Subsidiaries) for such
period determined on a consolidated basis in accordance with GAAP; provided
that there shall be excluded (a) the income (or non-cash loss to the extent
recorded as a loss on the books of the Borrower) of any Person in which any
other Person (other than the Borrower or any Subsidiary or any director holding
qualifying shares in compliance with applicable law) has a joint interest,
except to the extent of the amount of dividends or other distributions actually
paid in cash to the Borrower or any Subsidiary (other than the CFN
Subsidiaries, the iXL Ventures Subsidiaries and the Joint Venture Subsidiaries)
by such Person (or any cash losses incurred by such Person) during such period
and (b) the income (or loss) of any Person accrued prior to the date it becomes
a Subsidiary (other than the CFN Subsidiaries, the iXL Ventures Subsidiaries
and the Joint Venture Subsidiaries) or is merged into or consolidated with the
Borrower or any Subsidiary (other than the CFN Subsidiaries, the iXL Ventures
Subsidiaries and the Joint Venture Subsidiaries) or the date that Person's
assets are acquired by the Borrower or any Subsidiary (other than the CFN
Subsidiaries, the iXL Ventures Subsidiaries and the Joint Venture
Subsidiaries).
"Control" means the possession, directly or indirectly, of
the power to direct or cause the direction of the management or policies of a
Person, whether through the ability to exercise voting power, by contract or
otherwise. "Controlling" and "Controlled" have meanings correlative thereto.
"Creative Video Library" means Creative Video Library, Inc.,
a wholly owned subsidiary of the Borrower.
"Cyberstarts" means Cyberstarts, Inc., a wholly owned
subsidiary of iXL Ventures.
"Default" means any event or condition that constitutes an
Event of Default or that upon notice, lapse of
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time or both would, unless cured or waived, become an Event of Default.
"Designated Affiliates" means Xxxxx Investment Associates
V, L.P., Xxxxx Equity Partners V, L.P., 1996 Xxxxxxx Family Trust, Xxxxxxx X.
Xxxxx, Xxxxx and Xxxxxxxx Xxxxx Trust, Xxxxxxxx Family Partnership, LTD, Xxxx
X. XxXxxxxxxxxx, Xxxxx X. Xxxxxxx Retained Annuity Trust 1296-C-IXL, Xxxxxx
Xxxxxxxx, Xxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxxxxxxxx Family Trust and 1996
Xxxxxxxxxx Family Trust.
"Disclosed Matters" means the actions, suits and proceedings
and the environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States
of America.
"Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02).
"Eligible Billed Accounts Receivable" means, at the time of
any determination thereof, each Account that satisfies the following criteria
at the time of creation and continues to meet the same at the time of such
determination: such Account (i) has been invoiced to, and represents the bona
fide amounts due to the Borrower or an Accounts Receivable Subsidiary from, the
purchaser of merchandise or services, in each case originated in the ordinary
course of business of the Borrower or an Accounts Receivable Subsidiary in
connection with its trade operations and (ii) is not ineligible for inclusion
in the calculation of the Borrowing Base pursuant to any of clauses (a) through
(l) below or otherwise deemed by the Collateral Agent in good faith to be
ineligible for inclusion in the calculation of the Borrowing Base as described
below. Without limiting the foregoing, to qualify as an Eligible Billed Account
Receivable, an Account shall indicate as sole payee and as sole remittance
party the Borrower or any of the Accounts Receivable Subsidiaries. In
determining the amount to be so included, the face amount of an Account shall
be reduced by, without duplication, to the extent not reflected in such face
amount, (i) the amount of all accrued and actual returns, discounts, claims,
credits or credits pending, charges, price adjustments, freight or finance
charges or other allowances (including any amount that the Borrower or an
Accounts Receivable Subsidiary, as applicable, may be obligated to rebate to a
customer pursuant to the terms of any agreement or understanding (written or
oral)), (ii) the aggregate amount of all limits and deductions provided for in
this definition and elsewhere in this
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Agreement and (iii) the aggregate amount of all cash received in respect of
such Account and, without duplication, all other Accounts of the Account Debtor
on such Account but not yet applied by the Borrower or the applicable
Subsidiary to reduce the amount of such Account or other Accounts of the
Account Debtor on such Account. Unless otherwise approved from time to time in
writing by the Administrative Agent, no Account shall be an Eligible Billed
Account Receivable if, without duplication:
(a) the Borrower or an Accounts Receivable Subsidiary
does not have sole lawful and absolute title to such Account; or
(b) it arises out of a billing made by the Borrower or
an Accounts Receivable Subsidiary to (i) any Affiliate of the Borrower
or any Accounts Receivable Subsidiary, (ii) any Person in which the
Borrower or any Accounts Receivable Subsidiary owns an Equity Interest
of 30% or greater or (iii) any Person that owns an Equity Interest in
the Borrower or any Accounts Receivable Subsidiary of 5% or greater,
except for General Electric and CB Capital; or
(c) (i) it is unpaid more than 90 days from the original
date of invoice or 60 days from the original due date or (ii) it has
been written off the books of the Borrower or an Accounts Receivable
Subsidiary or has been otherwise designated on such books as
uncollectible; or
(d) more than 50% in face amount of all Accounts of the
same Account Debtor are ineligible pursuant to clause (c) above; or
(e) the Account Debtor (i) has a potential offset in the
form of deferred revenue, with the ineligible portion being equal to
the lesser of the Account Debtor's (x) deferred revenue balance
(calculated in the aggregate and in accordance with GAAP on a basis
consistent with the Borrower's historical and current accounting
practices) and (y) accounts receivable balance (calculated in the
aggregate), (ii) is a creditor of any Loan Party, (iii) has or has
asserted a right of set-off against any Loan Party (unless such
Account Debtor has entered into a written agreement reasonably
acceptable to the Administrative Agent to waive such set-off rights)
or (iv) has disputed its liability (whether by chargeback or
otherwise) or made any claim with respect to the Account or any other
Account of any Loan Party which has not been resolved, in each case,
without duplication, to the extent of the amount owed by such Loan
Party to the Account
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Debtor, the amount of such actual or asserted right of set-off, or the
amount of such dispute or claim, as the case may be; or
(f) the Account Debtor is insolvent or the subject of
any bankruptcy case or insolvency proceeding of any kind; or
(g) the Account is not payable in Dollars or the Account
Debtor is either not incorporated under the laws of the United States
of America, any state thereof or the District of Columbia or is
located outside or has its principal place of business or
substantially all of its assets outside the United States, except to
the extent the Account is supported by an irrevocable letter of credit
reasonably satisfactory to the Administrative Agent (as to form,
substance and issuer) and assigned to and directly drawable by the
Collateral Agent; or
(h) the sale to the Account Debtor is on a xxxx-and-
hold, guaranteed sale, sale-and-return, ship-and-return, extended
terms or consignment or other similar basis or made pursuant to any
other agreement providing for repurchase or return of any merchandise
which has been claimed to be defective or otherwise unsatisfactory; or
(i) the Account Debtor is the United States of America
or any department, agency or instrumentality thereof, unless the
Borrower or the relevant Accounts Receivable Subsidiary duly assigns
its rights to payment of such Account to the Collateral Agent pursuant
to the Assignment of Claims Act of 1940, as amended, which assignment
and related documents and filings shall be in form and substance
reasonably satisfactory to the Collateral Agent; or
(j) the Account does not comply in all material respects
with the requirements of all applicable laws and regulations, whether
Federal, state or local, including the Federal Consumer Credit
Protection Act, the Federal Truth in Lending Act and Regulation Z of
the Board; or
(k) the aggregate Accounts of the Account Debtor are
subject to any adverse security deposit, retainage or other similar
advance made by or for the benefit of the Account Debtor, in each case
to the extent thereof; or
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(l) (i) it is not subject to a valid and perfected first
priority Lien in favor of the Collateral Agent for the benefit of the
Secured Parties, subject to no other Liens other than the Liens (if
any) permitted by the Loan Documents or (ii) it does not otherwise
conform in all material respects to the representations and warranties
contained in the Loan Documents relating to Accounts; or
(m) such account is evidenced by a judgment, an
instrument or an item of chattel paper.
Notwithstanding the foregoing, all Accounts of any single
Account Debtor and its Affiliates which, in the aggregate (after
subtracting the relevant Account Debtor's deferred revenue balance),
exceed 25% of the total amount of all Eligible Billed Accounts
Receivable at the time of any determination shall be deemed not to be
Eligible Billed Accounts Receivable to the extent of such excess. In
determining the aggregate amount of Accounts from the same Account
Debtor that are unpaid more than 90 days from the date of invoice or
more than 60 days from the due date pursuant to clause (c) above,
there shall be excluded the amount of any net credit balances relating
to Accounts with invoice dates more than 90 days prior to the date of
determination or more than 60 days from the due date.
"Eligible Unbilled Accounts" means, at the time of any
determination thereof, all unbilled Accounts that meet the criteria for
Eligible Billed Accounts Receivable (other than that an invoice therefor has
not been sent to the applicable Account Debtors), with the exception that (x)
unbilled Accounts will not be considered Eligible Unbilled Accounts if aged
over 90 days from the date of creation and (y) the "extended terms" provision
in clause (h) of the definition of Eligible Billed Accounts Receivable shall
not apply.
"Environmental Laws" means all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the handling, treatment, storage, disposal Release or
threatened Release of any Hazardous Material or to health and safety matters.
"Environmental Liability" means any liability, contingent or
otherwise (including, but not limited to, any liability for damages, natural
resource damage, costs of environmental remediation, administrative oversight
costs fines,
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penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"Equity Interest Holders" means the Designated Affiliates,
CB Capital, U. Xxxxxxx Xxxxx, Xx. and Xxxxxxx X. Xxxxxx.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b)
the existence with respect to any Plan of an "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f)
the incurrence by the Borrower or any of its ERISA Affiliates of any liability
with respect to the withdrawal or partial withdrawal from any Plan or
Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate
of any notice, or the receipt by any Multiemployer Plan from the Borrower or
any ERISA Affiliate of
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any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or
Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing,
are bearing interest at a rate determined by reference to the Adjusted LIBO
Rate.
"Event of Default" has the meaning assigned to such term in
Article VII.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income
or franchise taxes imposed on (or measured by) its net income by the United
States of America, or by the jurisdiction under the laws of which such
recipient is organized or in which its principal office is located or, in the
case of any Lender, in which its applicable lending office is located, (b) any
branch profits taxes imposed by the United States of America or any similar tax
imposed by any other jurisdiction described in clause (a) above and (c) in the
case of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.17(b)), any withholding tax that (i) is in effect and
would apply to amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party to this Agreement (or designates a new lending office),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment),
to receive additional amounts from the Borrower with respect to any withholding
tax pursuant to Section 2.15(a), or (ii) is attributable to such Foreign
Lender's failure to comply with Section 2.15(e).
"Federal Funds Effective Rate" means, for any day, the
weighted average (rounded upwards, if necessary, to the next 1/100 of 1%) of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
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"Financial Officer" means the chief financial officer,
principal accounting officer, treasurer or controller of the Borrower.
"FootageNow" means FootageNow, Inc., a wholly owned
subsidiary of Creative Video Library, Inc.
"Foreign Lender" means any Lender that is organized under the
laws of a jurisdiction other than that in which the Borrower is located. For
purposes of this definition, the United States of America, each State thereof
and the District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized
under the laws of a jurisdiction other than the United States of America or any
State thereof or the District of Columbia.
"GAAP" means generally accepted accounting principles in the
United States of America.
"General Electric" means General Electric Company and its
Affiliates.
"Governmental Authority" means the government of the United
States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued
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to support such Indebtedness or obligation; provided, that the term "Guarantee"
shall not include endorsements for collection or deposit in the ordinary course
of business.
"Guarantee Agreement" means the Guarantee Agreement,
substantially in the form of Exhibit C, made by the Subsidiary Loan Parties in
favor of the Administrative Agent for the benefit of the Secured Parties.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law, including any material listed as a hazardous
substance under Section 101(14) of CERCLA.
"Hedging Agreement" means any interest rate protection
agreement, foreign currency exchange agreement, commodity price protection
agreement or other interest or currency exchange rate or commodity price
hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder
of such Indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien on property owned or acquired by such Person, whether or
not the Indebtedness secured thereby has been assumed, (f) all Guarantees by
such Person of Indebtedness of others, (g) all Capital Lease Obligations of
such Person, (h) all obligations, contingent or otherwise, of such Person as an
account party in respect of letters of credit and letters of guaranty and (i)
all obligations, contingent or otherwise, of such Person in respect of bankers'
acceptances. The Indebtedness of any Person shall include the Indebtedness of
any other entity (including any partnership in which such Person is a general
partner) to the extent such Person is liable therefor as a result of such
Person's ownership interest in or other relationship with such entity, except
to the extent the terms of such Indebtedness provide that such Person is not
liable therefor.
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"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Indemnity, Subrogation and Contribution Agreement" means the
Indemnity, Subrogation and Contribution Agreement substantially in the form of
Exhibit D.
"Information Memorandum" means the Confidential Information
Memorandum dated November, 1999 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower
to convert or continue a Borrowing in accordance with Section 2.06.
"Interest Payment Date" means (a) with respect to any ABR
Loan, the last day of each March, June, September and December, and (b) with
respect to any Eurodollar Loan, the last day of the Interest Period applicable
to the Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months' duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months' duration after the first day of such Interest Period.
"Interest Period" means, with respect to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing and ending on
the numerically corresponding day in the calendar month that is one, two, three
or six months thereafter, as the Borrower may elect; provided, that (a) if any
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless such next
succeeding Business Day would fall in the next calendar month, in which case
such Interest Period shall end on the next preceding Business Day and (b) any
Interest Period that commences on the last Business Day of a calendar month (or
on a day for which there is no numerically corresponding day in the last
calendar month of such Interest Period) shall end on the last Business Day of
the last calendar month of such Interest Period. For purposes hereof, the date
of a Borrowing initially shall be the date on which such Borrowing is made and
thereafter shall be the effective date of the most recent conversion or
continuation of such Borrowing.
"Issuing Bank" means The Chase Manhattan Bank, in its
capacity as the issuer of Letters of Credit hereunder, and its successors in
such capacity as provided in Section 2.04(i). The Issuing Bank may, in its
discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank,
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in which case the term "Issuing Bank" shall include any such Affiliate with
respect to Letters of Credit issued by such Affiliate.
"iXL Live" means iXL Live, Inc. a Delaware corporation, a
wholly owned subsidiary of iXL, Inc.
"iXL Ventures" means iXL Ventures, Inc. a Delaware
corporation, a wholly owned subsidiary of the Borrower.
"iXL Ventures Subsidiaries" means iXL Ventures and its
subsidiaries.
"iVisit" means iVisit, Inc., a wholly owned subsidiary of
iXL, Inc.
"Joint Venture" means, as to a Person, any corporation,
partnership or other legal entity or arrangement in which such Person has any
direct or indirect equity interest (or owns securities convertible into such an
equity interest) and that is not a subsidiary of such Person.
"Joint Venture Subsidiaries" means (a) each of (i)
Cyberstarts, (ii) FootageNow, (iii) iXL Live, (iv) AppGeneSys, (v) Creative
Video Library and (vi) iVisit and (b) any Subsidiary of the Borrower (i) that
is newly organized to act as a vehicle for the conduct of a joint venture
between the Borrower and one or more entities that are not Affiliates of the
Borrower, (ii) that engages only in internet or media related businesses and
(iii) not more than 80% of the outstanding Equity Interests and not more than
80% of the voting securities of which are owned, directly or indirectly, by the
Borrower and its Subsidiaries. No Subsidiary of the Borrower (other than those
referred to in clause (a) above) existing on the date of this Agreement shall
be a Joint Venture Subsidiary.
"Xxxxx" means Xxxxx & Company, L.P., a Delaware limited
partnership.
"LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the
aggregate undrawn amount of all outstanding Letters of Credit at such time plus
(b) the aggregate amount of all LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The LC Exposure of any
Revolving Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
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"Lenders" means the Persons listed on Schedule 2.01 and any
other Person that shall have become a party hereto pursuant to an Assignment
and Acceptance, other than any such Person that ceases to be a party hereto
pursuant to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant
to this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, the rate appearing on Page 3750 of the Dow Xxxxx
Market Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the "LIBO Rate"
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means, with respect to any asset, (a) any mortgage,
deed of trust, lien, pledge, hypothecation, encumbrance, charge or security
interest in, on or of such asset, (b) the interest of a vendor or a lessor
under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect
as any of the foregoing) relating to such asset and (c) in the case of
securities, any purchase option, call or similar right of a third party with
respect to such securities.
"Loan Documents" means this Agreement, the Guarantee
Agreement, the Indemnity, Subrogation and Contribution Agreement and the
Security Documents.
"Loan Parties" means the Borrower and the Subsidiary Loan
Parties.
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"Loans" means the loans made by the Lenders to the Borrower
pursuant to this Agreement.
"Margin Stock" has the meaning assigned to such term in
Regulation U.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole, (b) the
ability of any Loan Party to perform any of its obligations under any Loan
Document or (c) the rights of or benefits available to the Lenders under any
Loan Document.
"Material Indebtedness" means Indebtedness (other than the
Loans and Letters of Credit), or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and its Subsidiaries in an
aggregate principal amount exceeding $2,500,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the
Borrower or of its Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Subsidiary would be required to pay if such Hedging
Agreement were terminated at such time.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Net Proceeds" means, with respect to any event (a) the cash
proceeds received by the Borrower and the Subsidiary Loan Parties in respect of
such event, including any cash received in respect of any non-cash proceeds,
but only as and when received, net of (b) the sum of (i) all reasonable fees
and out-of-pocket expenses paid by the Borrower and the Subsidiary Loan Parties
to third parties (other than to the Borrower or a Subsidiary) in connection
with such event, (ii) the amount of all payments required to be made by the
Borrower and the Subsidiary Loan Parties as a result of such event to repay
Indebtedness (other than Loans) secured by such asset or otherwise subject to
mandatory prepayment as a result of such event and (iii) the amount of all
taxes paid (or reasonably estimated to be payable) by the Borrower and the
Subsidiary Loan Parties, and the amount of any reserves established by the
Borrower and its Subsidiaries to fund contingent liabilities reasonably
estimated to be payable, in each case during the year that such event occurred
or the next succeeding year and that are directly attributable to
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such event (as determined reasonably and in good faith by the chief financial
officer of the Borrower). In the case of Net Proceeds denominated in a currency
other than dollars, the amount of such Net Proceeds shall be the dollar
equivalent thereof based upon the exchange rates prevailing at the time.
"Obligations" has the meaning assigned to such term in the
Security Agreement.
"Other Taxes" means any and all current or future recording,
stamp, documentary, excise, transfer, sales, property or similar taxes, charges
or levies arising from any payment made under any Loan Document or from the
execution, delivery or enforcement of, or otherwise with respect to, any Loan
Document.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA and any successor entity performing similar
functions.
"Perfection Certificate" means a certificate in the form of
Annex 1 to the Security Agreement or any other form approved by the Collateral
Agent.
"Permitted Acquisition" means any acquisition of all or
substantially all the assets of, or all the shares or other Equity Interests
in, a Person or division or line of business of a Person if, immediately after
giving effect thereto, (a) no Default has occurred and is continuing or would
result therefrom, (b) all transactions related thereto are consummated in
accordance with applicable laws, (c) in the case of an acquisition of shares or
other Equity Interests in a Person, 100% of the Equity Interests in such
Person, and of any other Subsidiary resulting from such acquisition, shall be
owned directly by the Borrower or a Subsidiary Loan Party and all actions
required to be taken, if any, with respect to each Subsidiary resulting from
such acquisition under Sections 5.11 and 5.12 have been taken, (d) the Borrower
and its consolidated Subsidiaries are in compliance, on a pro forma basis after
giving effect to such acquisition, with the covenants contained in Sections
6.13, 6.14 and 6.15 recomputed as at the last day of the most recently ended
fiscal quarter of the Borrower for which financial statements are available as
if such acquisition had occurred on the first day of each relevant period for
testing such compliance and (e) the Borrower has delivered to the
Administrative Agent an officer's certificate to the effect set forth in
clauses (a), (b), (c) and (d) above, together with all relevant financial
information for the business or entity being acquired.
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"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or
are being contested in compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the
ordinary course of business and securing obligations that are not
overdue by more than 30 days or are being contested in compliance with
Section 5.05;
(c) pledges and deposits made in the ordinary course of
business in compliance with workers' compensation, unemployment
insurance and other social security laws or regulations and deposits
made in the ordinary course of business and securing liability to
insurance providers;
(d) deposits to secure the performance of bids, trade
contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case
in the ordinary course of business;
(e) judgment liens in respect of judgments that do not
constitute an Event of Default under clause (k) of Article VII;
(f) easements, zoning restrictions, rights-of-way and
similar encumbrances on real property imposed by law or arising in the
ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of business
of the Borrower or any Subsidiary;
(g) any interest of a landlord in or to property of the
tenant imposed by law, arising in the ordinary course of business and
securing lease obligations that are not overdue by more than 60 days
or are being contested in compliance with Section 5.05, or any
possessory rights of a lessee to the leased property under the
provisions of any lease permitted by the terms of this Agreement; and
(h) Liens of a collection bank arising in the ordinary
course of business under ' 4-208 of the Uniform Commercial Code in
effect in the relevant jurisdiction;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
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"Permitted Investments" means:
(a) direct obligations of, or obligations the principal of
and interest on which are unconditionally guaranteed by, the United
States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United
States of America), in each case maturing within one year from the
date of acquisition thereof;
(b) investments in commercial paper maturing within 270 days
from the date of acquisition thereof and having, at such date of
acquisition, the highest credit rating obtainable from S&P or from
Xxxxx'x;
(c) investments in certificates of deposit, banker's
acceptances and time deposits maturing within 365 days from the date
of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any domestic
office of any commercial bank organized under the laws of the United
States of America or any State thereof which has a combined capital
and surplus and undivided profits of not less than $500,000,000;
(d) fully collateralized repurchase agreements with a term
of not more than 30 days for securities described in clause (a) above
and entered into with a financial institution satisfying the criteria
described in clause (c) above; and
(e) shares of funds registered under the Investment Company
Act of 1940, as amended, that have assets of at least $500,000,000 and
invest only in obligations described in clauses (a) through (c) above
to the extent that such shares are rated by Xxxxx'x or S&P in one of
the two highest rating categories assigned by such agency for shares
of such nature.
"Permitted Preferred Stock" means any class of preferred
stock of the Borrower (a) the amounts, terms and conditions of which are
reasonably satisfactory in all material respects to the Required Lenders or (b)
that does not materially conflict with and is not more restrictive than the
terms under the Loan Documents and does not include any of the following terms:
(i) current pay dividend requirements prior to the date six months following
the Revolving Maturity Date, (ii) repayment or redemption requirements (other
than at the sole option of the Borrower) prior to the date six months following
the Revolving
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Maturity Date, (iii) provisions that provide for the exchange or conversion of
such preferred stock with or into Indebtedness prior to the date six months
following the Revolving Maturity Date or (iv) other terms similar to or
consistent with terms included in documents, instruments or agreements in
respect of Indebtedness.
"Permitted Subordinated Indebtedness" means unsecured
Indebtedness of the Borrower in respect of debt securities that (a) mature at
least one year after, and do not require any scheduled payment of principal or
any mandatory redemption or prepayment (or any right on the part of the holder
thereof to require any payment) of principal, in each case prior to the date
one year after the Revolving Maturity Date, (b) are not Guaranteed by any
Subsidiary Loan Party or any Foreign Subsidiary, (c) are subordinated to the
Borrower's Obligations on terms and conditions reasonably satisfactory to the
Required Lenders, (d) are issued for cash consideration, the net proceeds of
which are invested in the Borrower and (e) are in amounts and have terms and
conditions that are reasonably satisfactory in all material respects to the
Required Lenders.
"Person" means any natural person, corporation, limited
liability company, trust, joint venture, association, company, partnership,
Governmental Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower
or any of its ERISA Affiliates is (or, if such plan were terminated, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
"Pledge Agreement" means the Pledge Agreement substantially
in the form of Exhibit E among the Loan Parties and the Collateral Agent for
the benefit of the Secured Parties.
"Prepayment Event" means (a) any sale, transfer or other
disposition (including pursuant to a sale and lease-back transaction) of any
property or asset of the Borrower or any of the Subsidiary Loan Parties, other
than (i) dispositions described in clauses (a), (b) and (c) of Section 6.05 and
(ii) any sale, transfer or other dispositions of property or assets by the
Borrower or any of the Subsidiary Loan Parties resulting in aggregate Net
Proceeds not exceeding $2,500,000 during any fiscal year of the Borrower, (b)
any dividend, distribution, liquidation or dissolution of any CFN Subsidiary,
iXL Ventures Subsidiary or any Joint Venture Subsidiary; provided
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that, if the Borrower shall deliver a certificate of a Financial Officer to the
Administrative Agent at the time of any such event described in clause (a) or
(b) above (x) setting forth the intent of the Borrower or one of the Subsidiary
Loan Parties to use the Net Proceeds of such event to acquire other assets to
be used in a line of business of the type conducted by the Borrower and the
Subsidiary Loan Parties as of the Effective Date within 365 days of receipt of
such Net Proceeds and (y) certifying that no Default has occurred and is
continuing, then such event shall not constitute a Prepayment Event except to
the extent the Net Proceeds therefrom are not so used at the end of such
365-day period, at which time such event shall be deemed a Prepayment Event
with Net Proceeds equal to the Net Proceeds so remaining unused, (c) the
incurrence by the Borrower or any of the Subsidiary Loan Parties of (i)
Permitted Subordinated Indebtedness or (ii) any other Indebtedness not
permitted under Section 6.01 and (d) any casualty or other insured damage to,
or any taking under power of eminent domain or by condemnation or similar
proceeding of, any property or asset of the Borrower or Subsidiary Loan Party,
but only to the extent that the Net Proceeds therefrom have not been applied to
repair, restore or replace such property or asset within 270 days of the
receipt thereof (or within 6 months of a binding commitment entered into during
such 270 day period).
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by The Chase Manhattan Bank as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly
announced as being effective.
"Register" has the meaning set forth in Section 9.04.
"Regulation U" means Regulation U of the Board as in effect
from time to time and all official rulings and interpretations thereunder or
thereof.
"Related Parties" means, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Release" has the meaning set forth in Section 101(22) of
CERCLA.
"Required Lenders" means, at any time, Lenders having
Revolving Exposures and unused Commitments representing more than
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50% of the sum of the total Revolving Exposures and unused Commitments at such
time.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interests of the Borrower or any Subsidiary, or any payment (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Equity Interests of the Borrower or any Subsidiary or of any
option, warrant or other right to acquire any such Equity Interests of the
Borrower or any Subsidiary.
"Revolving Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the Revolving
Maturity Date and the date of termination of the Revolving Commitments.
"Revolving Commitment" means, with respect to each Lender,
the commitment, if any, of such Lender to make Revolving Loans and to acquire
participations in Letters of Credit hereunder, expressed as an amount
representing the maximum aggregate amount of such Lender's Revolving Exposure
hereunder, as such commitment may be (a) reduced from time to time pursuant to
Section 2.07 and (b) reduced or increased from time to time pursuant to
assignments by or to such Lender pursuant to Section 9.04. The initial amount
of each Lender's Revolving Commitment is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to which such Lender shall have assumed its
Revolving Commitment, as applicable. The initial aggregate amount of the
Lenders' Revolving Commitments is $50,000,000.
"Revolving Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure at such time.
"Revolving Lender" means a Lender with a Revolving Commitment
or, if the Revolving Commitments have terminated or expired, a Lender with
Revolving Exposure.
"Revolving Loan" means a Loan made pursuant to Section 2.01.
"Revolving Maturity Date" means December 31, 2002.
"S&P" means Standard & Poor's Ratings Group, a division of
The XxXxxx-Xxxx Companies, Inc.
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"Secured Parties" has the meaning assigned to such term in
the Security Agreement.
"Security Agreement" means the Security Agreement,
substantially in the form of Exhibit F, among the Loan Parties and the
Collateral Agent for the benefit of the Secured Parties.
"Security Documents" means the Security Agreement, the Pledge
Agreement and each other security agreement or other instrument or document
executed and delivered pursuant to Section 4.01 or to secure any of the
Obligations.
"Statutory Reserve Rate" means a fraction (expressed as a
decimal), the numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve percentages
(including any marginal, special, emergency or supplemental reserves) expressed
as a decimal established by the Board to which the Administrative Agent is
subject with respect to the Adjusted LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). Such reserve percentages shall include those imposed pursuant to such
Regulation D. Eurodollar Loans shall be deemed to constitute eurocurrency
funding and to be subject to such reserve requirements without benefit of or
credit for proration, exemptions or offsets that may be available from time to
time to any Lender under such Regulation D or any comparable regulation. The
Statutory Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent")
at any date, any corporation, limited liability company, partnership,
association or other entity the accounts of which would be consolidated with
those of the parent in the parent's consolidated financial statements if such
financial statements were prepared in accordance with GAAP as of such date, as
well as any other corporation, limited liability company, partnership,
association or other entity (a) of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power or, in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, owned, controlled or held,
or (b) that is, as of such date, otherwise Controlled, by the parent or one or
more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Subsidiary" means any subsidiary of the Borrower.
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"Subsidiary Loan Party" means any Subsidiary other than (a)
the CFN Subsidiaries, (b) the iXL Ventures Subsidiaries, (c) any Foreign
Subsidiary and (d) any Joint Venture Subsidiary.
"Syndication Agent" means First Union National Bank in its
capacity as syndication agent for the Lenders.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Tax Allocation Agreement" means, the Tax Allocation
Agreement dated the date hereof between the Borrower and its direct or indirect
Subsidiaries to the effect that such parties will make payments between
themselves such that, with respect to any period, the amount of taxes to be
paid by such Person generally will be determined as though such Person were to
file separate federal, state and local income tax returns.
"Total Debt" means, as of any date of determination, without
duplication, the aggregate principal amount of Indebtedness of the Borrower and
its Subsidiaries (other than the CFN Subsidiaries, the iXL Ventures
Subsidiaries and the Joint Venture Subsidiaries) outstanding as of such date
and net of any cash or cash equivalents held by the Borrower and such
Subsidiaries (other than the CFN Subsidiaries, the iXL Ventures Subsidiaries
and the Joint Venture Subsidiaries), determined on a consolidated basis in
accordance with GAAP (other than Indebtedness of the type referred to in clause
(h) of the definition of the term "Indebtedness", except to the extent of any
unreimbursed drawings thereunder).
"Transactions" means the execution, delivery and performance
by each Loan Party of the Loan Documents to which it is to be a party, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing,
refers to whether the rate of interest on such Loan, or on the Loans comprising
such Borrowing, is determined by reference to the Adjusted LIBO Rate or the
Alternate Base Rate.
"Unbilled Receivable Availability" means the lesser of (a)
60% of Eligible Unbilled Accounts and (b) 75% of the Billed Receivable
Availability.
"Video Equipment Valuation" means, at the time of any
determination thereof, the net book value of the Borrower's and its Accounts
Receivable Subsidiaries' video equipment
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(depreciated on a straight-line basis), determined in accordance with GAAP on a
basis consistent with the Borrower's historical and current accounting
practices. Upon the Borrower's prior consent, which consent shall not be
unreasonably withheld, professionals retained by the Collateral Agent may
conduct annual appraisals of such video equipment, provided each such annual
appraisal shall utilize appraisal techniques consistent with the appraisal of
such video equipment conducted on behalf of the Collateral Agent prior to the
Effective Date. The Borrower shall pay the fees and expenses of such
professionals. For purposes of calculating the Borrowing Base, no video
equipment may be included in the Video Equipment Valuation unless (i) the
Borrower or an Accounts Receivable Subsidiary has good and unencumbered title
thereto (subject to Permitted Encumbrances), (ii) the Collateral Agent on
behalf of the Secured Parties possesses a valid first priority perfected
security interest therein pursuant to the Security Documents, (iii) such
equipment is in service at the end of the month for which the Borrowing Base is
being determined and is not construction-in-progress and (iv) such equipment is
located in the United States of America and is owned by an Accounts Receivable
Subsidiary that is incorporated under the laws of the United States of America,
any state thereof or the District of Columbia or has its principal place of
business or substantially all of its assets located in the United States of
America.
"Withdrawal Liability" means liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For
purposes of this Agreement, Loans may be classified and referred to by Type
(e.g., a "Eurodollar Loan"). Borrowings also may be classified and referred to
by Type (e.g., a "Eurodollar Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms
herein shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms. The words "include",
"includes" and "including" shall be deemed to be followed by the phrase
"without limitation". The word "will" shall be construed to have the same
meaning and effect as the word "shall". Unless the context requires otherwise
(a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified
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(subject to any restrictions on such amendments, supplements or modifications
set forth herein), (b) any reference herein to any Person shall be construed to
include such Person's successors and assigns, (c) the words "herein", "hereof"
and "hereunder", and words of similar import, shall be construed to refer to
this Agreement in its entirety and not to any particular provision hereof, (d)
all references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise
expressly provided herein, all terms of an accounting or financial nature shall
be construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have
been withdrawn or such provision amended in accordance herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. Subject to the terms and
conditions set forth herein, each Lender agrees to make Revolving Loans to the
Borrower from time to time during the Revolving Availability Period in an
aggregate principal amount that will not result in (i) such Lender's Revolving
Exposure exceeding such Lender's Revolving Commitment or (ii) the sum of the
Revolving Exposures exceeding the Borrowing Base then in effect. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Loan shall be
made as part of a Borrowing consisting of Loans of the
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same Type made by the Lenders ratably in accordance with their respective
Commitments. The failure of any Lender to make any Loan required to be made by
it shall not relieve any other Lender of its obligations hereunder; provided
that the Commitments of the Lenders are several and no Lender shall be
responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.14, each Revolving Borrowing shall
be comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may
request in accordance herewith. Each Lender at its option may make any
Eurodollar Loan by causing any domestic or foreign branch or Affiliate of such
Lender to make such Loan; provided that any exercise of such option shall not
affect the obligation of the Borrower to repay such Loan in accordance with the
terms of this Agreement.
(c) At the commencement of each Interest Period for any
Eurodollar Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $1,000,000. At the time that
each ABR Borrowing is made, such Borrowing shall be in an aggregate amount that
is an integral multiple of $100,000 and not less than $100,000; provided that
an ABR Revolving Borrowing may be in an aggregate amount that is equal to the
entire unused balance of the total Revolving Commitments or that is required to
finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Type may be outstanding at the same time;
provided that there shall not at any time be more than a total of 5 Eurodollar
Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement,
the Borrower shall not be entitled to request, or to elect to convert or
continue, any Borrowing if the Interest Period requested with respect thereto
would end after the Revolving Maturity Date.
SECTION 2.03. Requests for Borrowings. To request a
Borrowing the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m.,
New York City time, one Business Day before the date of the proposed Borrowing;
provided that any such notice of an ABR Borrowing to finance the reimbursement
of an LC Disbursement as contemplated by Section 2.04(e) may be given not later
than 10:00 a.m., New York City time, on the date of the proposed Borrowing.
Each such telephonic Borrowing Request shall be irrevocable and shall be
confirmed promptly by hand delivery or telecopy to the
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Administrative Agent of a written Borrowing Request in a form approved by the
Administrative Agent and signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.02:
(i) the aggregate amount of such Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to
which funds are to be disbursed, which shall comply with the
requirements of Section 2.05.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing. If no Interest Period is specified with
respect to any requested Eurodollar Borrowing, then the Borrower shall be
deemed to have selected an Interest Period of one month's duration. Promptly
following receipt of a Borrowing Request in accordance with this Section, the
Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Letters of Credit. (a) General. Subject to the
terms and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Revolving Availability Period. In the event of any inconsistency
between the terms and conditions of this Agreement and the terms and conditions
of any form of letter of credit application or other agreement submitted by the
Borrower to, or entered into by the Borrower with, the Issuing Bank relating to
any Letter of Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of Credit (or the
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall hand deliver or
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telecopy (or transmit by electronic communication, if arrangements for doing so
have been approved by the Issuing Bank) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date of issuance,
amendment, renewal or extension) a notice requesting the issuance of a Letter
of Credit, or identifying the Letter of Credit to be amended, renewed or
extended, and specifying the date of issuance, amendment, renewal or extension
(which shall be a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section), the amount of
such Letter of Credit, the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit. If requested by the Issuing Bank, the Borrower also shall
submit a letter of credit application on the Issuing Bank's standard form in
connection with any request for a Letter of Credit. A Letter of Credit shall be
issued, amended, renewed or extended only if (and upon issuance, amendment,
renewal or extension of each Letter of Credit the Borrower shall be deemed to
represent and warrant that), after giving effect to such issuance, amendment,
renewal or extension (i) the LC Exposure shall not exceed $10,000,000 and (ii)
the total Revolving Exposures shall not exceed the lesser of the total
Revolving Commitments and the Borrowing Base then in effect.
(c) Expiration Date. Each Letter of Credit shall expire at
or prior to the close of business on the earlier of (i) the date one year after
the date of the issuance of such Letter of Credit (or, in the case of any
renewal or extension thereof, one year after such renewal or extension) and
(ii) the date that is five Business Days prior to the Revolving Maturity Date.
(d) Participations. By the issuance of a Letter of Credit
(or an amendment to a Letter of Credit increasing the amount thereof) and
without any further action on the part of the Issuing Bank or the Lenders, the
Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender
hereby acquires from the Issuing Bank, a participation in such Letter of Credit
equal to such Lender's Applicable Percentage of the aggregate amount available
to be drawn under such Letter of Credit. In consideration and in furtherance of
the foregoing, each Revolving Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender's Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment required to be
refunded to the Borrower for any reason. Each Lender acknowledges and agrees
that its
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obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by
any circumstance whatsoever, including any amendment, renewal or extension of
any Letter of Credit or the occurrence and continuance of a Default or
reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse
such LC Disbursement by paying to the Administrative Agent an amount equal to
such LC Disbursement not later than 12:00 noon, New York City time, on the date
that such LC Disbursement is made, if the Borrower shall have received notice
of such LC Disbursement prior to 10:00 a.m., New York City time, on such date,
or, if such notice has not been received by the Borrower prior to such time on
such date, then not later than 12:00 noon, New York City time, on (i) the
Business Day that the Borrower receives such notice, if such notice is received
prior to 10:00 a.m., New York City time, on the day of receipt, or (ii) the
Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of
receipt; provided that, if such LC Disbursement is not less than $1,000,000,
the Borrower may, subject to the conditions to borrowing set forth herein,
request in accordance with Section 2.03 that such payment be financed with an
ABR Borrowing in an equivalent amount and, to the extent so financed, the
Borrower's obligation to make such payment shall be discharged and replaced by
the resulting ABR Revolving Borrowing. If the Borrower fails to make such
payment when due, the Administrative Agent shall notify each Revolving Lender
of the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Revolving Lender shall pay to the
Administrative Agent its Applicable Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.05 with respect to Loans
made by such Lender (and Section 2.05 shall apply, mutatis mutandis, to the
payment obligations of the Revolving Lenders), and the Administrative Agent
shall promptly pay to the Issuing Bank the amounts so received by it from the
Revolving Lenders. Promptly following receipt by the Administrative Agent of
any payment from the Borrower pursuant to this paragraph, the Administrative
Agent shall distribute such payment to the Issuing Bank or, to the extent that
Revolving Lenders have made payments pursuant to this paragraph to reimburse
the Issuing Bank, then to such Lenders and the Issuing Bank as their interests
may appear. Any payment made by a Revolving Lender pursuant to this paragraph
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to reimburse the Issuing Bank for any LC Disbursement (other than the funding
of ABR Loans as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to
reimburse LC Disbursements as provided in paragraph (e) of this Section shall
be absolute, unconditional and irrevocable, and shall be performed strictly in
accordance with the terms of this Agreement under any and all circumstances
whatsoever and irrespective of (i) any lack of validity or enforceability of
any Letter of Credit or this Agreement, or any term or provision therein, (ii)
any draft or other document presented under a Letter of Credit proving to be
forged, fraudulent or invalid in any respect or any statement therein being
untrue or inaccurate in any respect, (iii) payment by the Issuing Bank under a
Letter of Credit against presentation of a draft or other document that does
not comply with the terms of such Letter of Credit, or (iv) any other event or
circumstance whatsoever, whether or not similar to any of the foregoing, that
might, but for the provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of set-off against, the Borrower's obligations
hereunder. Neither the Administrative Agent, the Lenders nor the Issuing Bank,
nor any of their Related Parties, shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of
Credit or any payment or failure to make any payment thereunder (irrespective
of any of the circumstances referred to in the preceding sentence), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank's
failure to exercise care when determining whether drafts and other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence or wilful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be
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in substantial compliance with the terms of a Letter of Credit, the Issuing
Bank may, in its sole discretion, either accept and make payment upon such
documents without responsibility for further investigation, regardless of any
notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. The Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether the Issuing Bank
has made or will make an LC Disbursement thereunder; provided that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse the Issuing Bank and the Revolving Lenders with respect
to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans; provided
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 2.11(c) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing
Bank, except that interest accrued on and after the date of payment by any
Revolving Lender pursuant to paragraph (e) of this Section to reimburse the
Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(i) Replacement of the Issuing Bank. The Issuing Bank may be
replaced at any time by written agreement among the Borrower, the
Administrative Agent, the replaced Issuing Bank and the successor Issuing Bank.
The Administrative Agent shall notify the Lenders of any such replacement of
the Issuing Bank. At the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the replaced
Issuing Bank pursuant to Section 2.10(b). From and after the effective date of
any such replacement, (i) the successor Issuing Bank shall have all the rights
and obligations of the Issuing Bank under this Agreement with respect to
Letters of Credit to be issued thereafter and (ii) references herein to the
term "Issuing Bank" shall be deemed to refer to such
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successor or to any previous Issuing Bank, or to such successor and all
previous Issuing Banks, as the context shall require. After the replacement of
an Issuing Bank hereunder, the replaced Issuing Bank shall remain a party
hereto and shall continue to have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit issued by it prior
to such replacement, but shall not be required to issue additional Letters of
Credit.
(j) Cash Collateralization. If any Event of Default shall
occur and be continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Lenders (or, if the maturity of
the Loans has been accelerated, Revolving Lenders with LC Exposure representing
greater than 50% of the total LC Exposure) demanding the deposit of cash
collateral pursuant to this paragraph, the Borrower shall deposit in an account
with the Administrative Agent, in the name of the Administrative Agent and for
the benefit of the Lenders, an amount in cash equal to the LC Exposure as of
such date attributable to all Letters of Credit issued for the account of the
Borrower plus any accrued and unpaid interest thereon; provided that the
obligation to deposit such cash collateral shall become effective immediately,
and such deposit shall become immediately due and payable, without demand or
other notice of any kind, upon the occurrence of any Event of Default with
respect to the Borrower described in clause (h) or (i) of Article VII. The
Borrower also shall deposit cash collateral pursuant to this paragraph as and
to the extent required by Section 2.09(b), and any such cash collateral so
deposited and held by the Administrative Agent hereunder shall constitute part
of the Borrowing Base for purposes of determining compliance with Section
2.09(b). Each such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion
and control, including the exclusive right of withdrawal, over such account.
Other than any interest earned on the investment of such deposits, which
investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower's risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Revolving Lenders with LC Exposure
representing greater than 50% of the total LC
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Exposure), be applied to satisfy other obligations of the Borrower under this
Agreement. If the Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default, such amount (to
the extent not applied as aforesaid) shall be returned to the Borrower within
three Business Days after all Events of Default have been cured or waived. If
the Borrower is required to provide an amount of cash collateral hereunder
pursuant to Section 2.09(b), such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower as and to the extent that, after
giving effect to such return, the Borrower would remain in compliance with
Section 2.09(b) and no Default shall have occurred and be continuing.
SECTION 2.05. Funding of Borrowings. (a) Each Lender shall
make each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in
like funds, to an account of the Borrower maintained with the Administrative
Agent in New York City and designated by the Borrower in the applicable
Borrowing Request; provided that ABR Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.04(e) shall be remitted by the
Administrative Agent to the Issuing Bank.
(b) Unless the Administrative Agent shall have received
notice from a Lender prior to the proposed date of any Borrowing that such
Lender will not make available to the Administrative Agent such Lender's share
of such Borrowing, the Administrative Agent may assume that such Lender has
made such share available on such date in accordance with paragraph (a) of this
Section and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact
made its share of the applicable Borrowing available to the Administrative
Agent, then the applicable Lender and the Borrower severally agree to pay to
the Administrative Agent forthwith on demand such corresponding amount with
interest thereon, for each day from and including the date such amount is made
available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of such Lender, the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation or (ii) in
the case of the Borrower, the interest rate applicable to ABR Loans. If such
Lender pays such amount to
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the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.06. Interest Elections. (a) Each Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Borrowing, shall have an initial Interest
Period as specified in such Borrowing Request. Thereafter, the Borrower may
elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Borrowing, may elect Interest
Periods therefor, all as provided in this Section. The Borrower may elect
different options with respect to different portions of the affected Borrowing,
in which case each such portion shall be allocated ratably among the Lenders
holding the Loans comprising such Borrowing, and the Loans comprising each such
portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the
Borrower shall notify the Administrative Agent of such election by telephone by
the time that a Borrowing Request would be required under Section 2.03 if the
Borrower were requesting a Borrowing of the Type resulting from such election
to be made on the effective date of such election. Each such telephonic
Interest Election Request shall be irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the Administrative Agent of a written Interest
Election Request in a form approved by the Administrative Agent and signed by
the Borrower.
(c) Each telephonic and written Interest Election Request
shall specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be specified
for each resulting Borrowing);
(ii) the effective date of the election made pursuant to
such Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
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(iv) if the resulting Borrowing is a Eurodollar Borrowing,
the Interest Period to be applicable thereto after giving effect to
such election, which shall be a period contemplated by the definition
of the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election
Request, the Administrative Agent shall advise each Lender of the details
thereof and of such Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest
Election Request with respect to a Eurodollar Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Borrowing shall be converted to an ABR Borrowing at the end of
the Interest Period applicable thereto.
SECTION 2.07. Termination and Reduction of Commitments. (a)
Unless previously terminated, the Revolving Commitments shall terminate on the
Revolving Maturity Date.
(b) The Borrower may at any time terminate, or from time to
time reduce, the Commitments; provided that (i) each reduction of the
Commitments shall be in an amount that is an integral multiple of $1,000,000
and not less than $1,000,000 and (ii) the Borrower shall not terminate or
reduce the Commitments if, after giving effect to any concurrent prepayment of
the Revolving Loans in accordance with Section 2.09, the sum of the Revolving
Exposures would exceed the total Commitments.
(c) In the event and on each occasion that any Net Proceeds
are received by or on behalf of the Borrower or any Subsidiary Loan Party in
respect of any Prepayment Event, the Revolving Commitments shall automatically
be reduced by an aggregate amount equal to the amount of such Net Proceeds and
the
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Borrower shall make any related prepayment of Loans required by Section
2.09(b).
(d) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section and of any mandatory reduction of Commitments under paragraph (c) of
this Section at least three Business Days prior to the effective date of such
termination or reduction, specifying such election or event giving rise to a
mandatory reduction and the effective date thereof, and providing a reasonably
detailed calculation of the amount of any such mandatory reduction of
Commitments. Promptly following receipt of any notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Revolving Commitments delivered by the Borrower may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Borrower (by notice
to the Administrative Agent on or prior to the specified effective date) if
such condition is not satisfied. Any termination or reduction of the
Commitments shall be permanent. Each reduction of the Commitments shall be made
ratably among the Lenders in accordance with their respective Commitments.
SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Lender the then unpaid principal amount of each Loan of
such Lender on the Revolving Maturity Date.
(b) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in
which it shall record (i) the amount of each Loan made hereunder, the Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall be prima
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facie evidence of the existence and amounts of the obligations recorded
therein; provided that the failure of any Lender or the Administrative Agent to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with the terms of
this Agreement.
(e) Any Lender may request that Loans made by it be
evidenced by a promissory note. In such event, the Borrower shall prepare,
execute and deliver to such Lender a promissory note payable to the order of
such Lender (or, if requested by such Lender, to such Lender and its registered
assigns) and in a form approved by the Administrative Agent. Thereafter, the
Loans evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).
SECTION 2.09. Prepayment of Loans. (a) The Borrower shall
have the right at any time and from time to time to prepay any Borrowing in
whole or in part, subject to the requirements of this Section.
(b) In the event and on such occasion that the sum of the
Revolving Exposures exceeds the lesser of the Borrowing Base and the total
Revolving Commitments, the Borrower shall prepay Borrowings (or, if no such
Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.04(j)) in an aggregate amount equal
to such excess.
(c) Prior to any optional or mandatory prepayment of
Borrowings hereunder, the Borrower shall select the Borrowing or Borrowings to
be prepaid and shall specify such selection in the notice of such prepayment
pursuant to paragraph (d) of this Section.
(d) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the case
of prepayment of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, three Business Days before the date of prepayment, or (ii) in the
case of prepayment of an ABR Borrowing, not later than 11:00 a.m., New York
City time, one Business Day before the date of prepayment. Each such notice
shall be irrevocable and shall specify the prepayment date, the principal
amount of each Borrowing or portion thereof to be prepaid and, in the case of a
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mandatory prepayment, a reasonably detailed calculation of the amount of such
prepayment; provided that, if a notice of optional prepayment is given in
connection with a conditional notice of termination of the Revolving
Commitments as contemplated by Section 2.07, then such notice of prepayment may
be revoked if such notice of termination is revoked in accordance with Section
2.07. Promptly following receipt of any such notice, the Administrative Agent
shall advise the Lenders of the contents thereof. Each partial prepayment of
any Borrowing shall be in an amount that would be permitted in the case of an
advance of a Borrowing of the same Type as provided in Section 2.02, except as
necessary to apply fully the required amount of a mandatory prepayment. Each
prepayment of a Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.11.
SECTION 2.10. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee, which
shall accrue on the daily unused amount of the Revolving Commitment of such
Lender during the period from and including the Effective Date to but excluding
the date on which such Commitment terminates at a rate of (a) .75% per annum in
respect of any day when the outstanding principal amount of the Loans is less
than 50% of the Commitments and (b) .50% per annum in respect of any day when
the outstanding principal amount of the Loans is equal to or greater than 50%
of the Commitments. Accrued commitment fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the date on
which the Revolving Commitments terminate, commencing on the first such date to
occur after the Effective Date. All commitment fees shall be computed on the
basis of a year of 360 days and shall be payable for the actual number of days
elapsed (including the first day but excluding the last day). For purposes of
computing commitment fees with respect to Revolving Commitments, a Revolving
Commitment of a Lender shall be deemed to be used to the extent of the
outstanding Revolving Loans and LC Exposure of such Lender.
(b) The Borrower agrees to pay (i) to the Administrative
Agent for the account of each Revolving Lender a participation fee with respect
to its participations in Letters of Credit, which shall accrue at the same
Applicable Rate as would apply to interest on Eurodollar Loans on the daily
amount of such Lender's LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Revolving Commitment terminates and the date on which such Lender ceases to
have any
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LC Exposure, and (ii) to the Issuing Bank a fronting fee, which shall accrue at
the rate of 0.25% per annum on the average daily amount of the LC Exposure
(excluding any portion thereof attributable to unreimbursed LC Disbursements)
during the period from and including the Effective Date to but excluding the
later of the date of termination of the Revolving Commitments and the date on
which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder. Participation fees
and fronting fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the third Business Day
following such last day, commencing on the first such date to occur after the
Effective Date; provided that all such fees shall be payable on the date on
which the Revolving Commitments terminate and any such fees accruing after the
date on which the Revolving Commitments terminate shall be payable on demand.
Any other fees payable to the Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and fronting fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay to the Administrative Agent,
for its own account, fees payable in the amounts and at the times separately
agreed upon between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates
due, in immediately available funds, to the Administrative Agent (or to the
Issuing Bank, in the case of fees payable to it) for distribution, in the case
of commitment fees and participation fees, to the Lenders entitled thereto.
Fees paid shall not be refundable under any circumstances.
SECTION 2.11. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at the Alternate Base Rate plus the Applicable
Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate.
(c) Notwithstanding the foregoing, if any principal of or
interest on any Loan or any fee or other amount payable by the Borrower
hereunder is not paid when due, whether at stated maturity, upon acceleration
or otherwise, such overdue amount shall bear interest, after as well as before
judgment, at a rate
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per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Revolving Loans as provided in paragraph (a) of this
Section.
(d) Accrued interest on each Loan shall be payable in
arrears on each Interest Payment Date for such Loan and upon termination of the
Revolving Commitments; provided that (i) interest accrued pursuant to paragraph
(c) of this Section shall be payable on demand, (ii) in the event of any
repayment or prepayment of any Loan (other than a prepayment of an ABR Loan
prior to the end of the Revolving Availability Period), accrued interest on the
principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Loan prior to the end of the current Interest Period therefor,
accrued interest on such Loan shall be payable on the effective date of such
conversion.
(e) All interest hereunder shall be computed on the basis of
a year of 360 days, except that interest computed by reference to the Alternate
Base Rate at times when the Alternate Base Rate is based on the Prime Rate
shall be computed on the basis of a year of 365 days (or 366 days in a leap
year), and in each case shall be payable for the actual number of days elapsed
(including the first day but excluding the last day). The applicable Alternate
Base Rate or Adjusted LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.12. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and
reasonable means do not exist for ascertaining the Adjusted LIBO Rate
for such Interest Period; or
(b) the Administrative Agent is advised by the Required
Lenders that the Adjusted LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders of making or
maintaining their Loans included in such Borrowing for such Interest
Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as
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practicable thereafter and, until the Administrative Agent notifies the
Borrower and the Lenders that the circumstances giving rise to such notice no
longer exist, (i) any Interest Election Request that requests the conversion of
any Borrowing to, or continuation of any Borrowing as, a Eurodollar Borrowing
shall be ineffective and (ii) if any Borrowing Request requests a Eurodollar
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.13. Increased Costs. (a) If any Change in Law
shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower agrees to pay to such Lender or the Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank determines that any
Change in Law regarding capital requirements has or would have the effect of
reducing the rate of return on such Lender's or the Issuing Bank's capital or
on the capital of such Lender's or the Issuing Bank's holding company, if any,
as a consequence of this Agreement or the Loans made by, or participations in
Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Bank, to a level below that which such Lender or the Issuing Bank or
such Lender's or the Issuing Bank's holding company could have achieved but for
such Change in Law (taking into consideration such Lender's or the Issuing
Bank's policies and the policies of such Lender's or the Issuing Bank's holding
company with respect to capital adequacy), then from time
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to time the Borrower agrees to pay to such Lender or the Issuing Bank, as the
case may be, such additional amount or amounts as will compensate such Lender
or the Issuing Bank or such Lender's or the Issuing Bank's holding company for
any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or its holding company, as the case may be, as specified in paragraph (a)
or (b) of this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender or the
Issuing Bank, as the case may be, the amount shown as due on any such
certificate within 10 days after receipt thereof by the Borrower.
(d) Failure or delay on the part of any Lender or the
Issuing Bank to demand compensation pursuant to this Section shall not
constitute a waiver of such Lender's or the Issuing Bank's right to demand such
compensation; provided that the Borrower shall not be required to compensate a
Lender or the Issuing Bank pursuant to this Section for any increased costs or
reductions incurred more than 180 days prior to the date that such Lender or
the Issuing Bank, as the case may be, notifies the Borrower of the Change in
Law giving rise to such increased costs or reductions and of such Lender's or
the Issuing Bank's intention to claim compensation therefor; provided further
that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 180-day period referred to above shall be extended to
include the period of retroactive effect thereof.
SECTION 2.14. Break Funding Payments. In the event of (a)
the payment of any principal of any Eurodollar Loan other than on the last day
of an Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Loan on the date specified in any notice delivered
pursuant hereto (regardless of whether such notice may be revoked under Section
2.09(e) and is revoked in accordance therewith), or (d) the assignment of any
Eurodollar Loan other than on the last day of the Interest Period applicable
thereto as a result of a request by the Borrower pursuant to Section 2.17,
then, in any such event, the Borrower shall compensate each Lender for the
loss, cost and expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense to any Lender shall be deemed to include an
amount determined by such Lender to be the excess, if
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any, of (i) the amount of interest which would have accrued on the principal
amount of such Loan had such event not occurred, at the Adjusted LIBO Rate that
would have been applicable to such Loan, for the period from the date of such
event to the last day of the then current Interest Period therefor (or, in the
case of a failure to borrow, convert or continue, for the period that would
have been the Interest Period for such Loan), over (ii) the amount of interest
which would accrue on such principal amount for such period at the interest
rate which such Lender would bid were it to bid, at the commencement of such
period, for dollar deposits of a comparable amount and period from other banks
in the eurodollar market. A certificate of any Lender setting forth any amount
or amounts that such Lender is entitled to receive pursuant to this Section
shall be delivered to the Borrower and shall be conclusive absent manifest
error. The Borrower shall pay such Lender the amount shown as due on any such
certificate within 10 days after receipt thereof by the Borrower.
SECTION 2.15. Taxes. (a) Any and all payments by or on
account of any obligation of the Borrower hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided that if the Borrower shall be
required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, Lender or Issuing Bank
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make such deductions
and (iii) the Borrower shall pay the full amount deducted to the relevant
Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to
the relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within 10 days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder or under any other Loan Document (including Indemnified
Taxes or Other Taxes imposed or asserted on or attributable to amounts payable
under this Section) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
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Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower
shall deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Each Foreign Lender, and any Issuing Bank that is not a
"United States person" within the meaning of Section 7701(a)(30) of the Code
(together with the Foreign Lenders, the "Non-U.S. Lenders"), shall deliver to
the Borrower (with a copy to the Administrative Agent) two copies of either
United States Internal Revenue Service Form 1001 or Form 4224, or, in the case
of a Non-U.S. Lender claiming exemption from U.S. Federal withholding tax under
Section 871(h) or 881(c) of the Code with respect to payments of "portfolio
interest", a Form W-8, or any subsequent versions thereof or successors thereto
(and, if such Non-U.S. Lender delivers a Form W-8, a certificate representing
that such Non-U.S. Lender is not a bank for purposes of Section 881(c) of the
Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the Borrower and is not a controlled foreign
corporation related to the Borrower (within the meaning of Section 864(d)(4) of
the Code)), properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or reduced rate of, U.S. Federal withholding
tax on payments by the Borrower under this Agreement or any other Loan
Document. Such forms shall be delivered by each Non-U.S. Lender on or before
the date it becomes a party to this Agreement or designates a new lending
office. In addition, each Non-U.S. Lender shall deliver such forms promptly
upon the obsolescence, expiration or invalidity of any form previously
delivered by such Non-U.S. Lender. Notwithstanding any other provision of this
Section 2.14, a Non-U.S. Lender shall not be required to deliver any form
pursuant to this Section 2.14(e) that such Non-U.S. Lender is not legally able
to deliver.
SECTION 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs. (a) The Borrower shall make each payment required to be
made by it hereunder or under any other Loan Document (whether of principal,
interest, fees or reimbursement
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of LC Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15, or
otherwise) prior to the time expressly required hereunder or under such other
Loan Document for such payment (or, if no such time is expressly required,
prior to 12:00 noon, New York City time), on the date when due, in immediately
available funds, without set-off or counterclaim. Any amounts received after
such time on any date may, in the discretion of the Administrative Agent, be
deemed to have been received on the next succeeding Business Day for purposes
of calculating interest thereon. All such payments shall be made to the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except payments to be made directly to the Issuing Bank as expressly provided
herein and except that payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03
shall be made directly to the Persons entitled thereto and payments pursuant to
other Loan Documents shall be made to the Persons specified therein. The
Administrative Agent shall distribute any such payments received by it for the
account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment under any Loan Document shall be due on a day
that is not a Business Day, the date for payment shall be extended to the next
succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be payable for the period of such extension. All
payments under each Loan Document shall be made in dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off
or counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Loans or participations in LC Disbursements resulting in
such Lender receiving payment of a greater proportion of the aggregate amount
of its Loans and participations in LC Disbursements and accrued interest
thereon than the proportion received by any other Lender, then the Lender
receiving such greater proportion shall purchase (for cash at face value)
participations in the Loans and participations in LC Disbursements of other
Lenders to the extent necessary so that the benefit of all such payments shall
be
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shared by the Lenders ratably in accordance with the aggregate amount of
principal of and accrued interest on their respective Loans and participations
in LC Disbursements; provided that (i) if any such participations are purchased
and all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative
Agent may assume that the Borrower has made such payment on such date in
accordance herewith and may, in reliance upon such assumption, distribute to
the Lenders or the Issuing Bank, as the case may be, the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders or the Issuing Bank, as the case may be, severally agrees to repay to
the Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.04(d) or (e), 2.05(b), 2.16(d) or 9.03(c),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy
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such Lender's obligations under such Sections until all such unsatisfied
obligations are fully paid.
SECTION 2.17. Mitigation Obligations; Replacement of
Lenders. (a) If any Lender requests compensation under Section 2.13, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.15,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the judgment of such Lender, such designation or assignment (i) would eliminate
or reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any
Lender in connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.13,
or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section
2.15, or if any Lender defaults in its obligation to fund Loans hereunder, then
the Borrower may, at its sole expense and effort, upon notice to such Lender
and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04), all its interests, rights and obligations under this
Agreement to an assignee that shall assume such obligations (which assignee may
be another Lender, if a Lender accepts such assignment); provided that (i) the
Borrower shall have received the prior written consent of the Administrative
Agent and the Issuing Bank, which consent shall not unreasonably be withheld,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in LC Disbursements,
accrued interest thereon, accrued fees and all other amounts payable to it
hereunder, from the assignee (to the extent of such outstanding principal and
accrued interest and fees) or the Borrower (in the case of all other amounts)
and (iii) in the case of any such assignment resulting from a claim for
compensation under Section 2.13 or payments required to be made pursuant to
Section 2.15, such assignment will result in a material reduction in such
compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
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ARTICLE III
Representations and Warranties
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Organization; Powers. Each of the Borrower and
its Subsidiaries is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions
to be entered into by each Loan Party are within such Loan Party's corporate
powers and have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by the Borrower and constitutes, and each other Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of the Borrower
or such Loan Party (as the case may be), enforceable in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium
or other laws affecting creditors' rights generally and subject to general
principles of equity, regardless of whether considered in a proceeding in
equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such as
have been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Loan Documents, (b) will not
violate any applicable law or regulation or the charter, by-laws or other
organizational documents of the Borrower or any of its Subsidiaries or any
order of any Governmental Authority, (c) will not violate or result in a
default under any indenture, agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or its assets, except such violations or
defaults which individually and in the aggregate, would not be reasonably
likely to result in a Material Adverse Effect or give rise to a right
thereunder to require any payment to be made by the
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Borrower or any of its Subsidiaries, and (d) will not result in the creation or
imposition of any Lien on any asset of the Borrower or any of its Subsidiaries,
except Liens created under the Loan Documents.
SECTION 3.04. Financial Condition; No Material Adverse
Change. (a) The Borrower has heretofore furnished to the Lenders its (i)
audited consolidated balance sheet and statements of income, stockholders
equity and cash flows (A) as of and for the fiscal year ended December 31,
1998, reported on by PricewaterhouseCoopers LLP, independent public
accountants, (B) as of and for the fiscal quarter and the portion of the fiscal
year ended September 30, 1999, certified by its chief financial officer and
(ii) consolidated balance sheet and statements of income and stockholders
equity as of and for any month and the portion of the fiscal year ended on the
last day of such month that has been completed during the fiscal quarter ended
December 31, 1999, certified by its chief financial officer. Such financial
statements present fairly, in all material respects, the financial position and
results of operations and cash flows of the Borrower and its consolidated
Subsidiaries as of such dates and for such periods in accordance with GAAP,
subject to year-end audit adjustments and the absence of footnotes in the case
of the statements referred to in clauses (ii) and (iii) above.
(b) The Borrower has heretofore furnished to the Lenders its
pro forma consolidated balance sheet as of September 30, 1999, prepared giving
effect to the Transactions as if the Transactions had occurred on such date.
Such pro forma consolidated balance sheet (i) has been prepared in good faith
based on the same assumptions used to prepare the pro forma financial
statements included in the Information Memorandum (which assumptions are
believed by the Borrower to be reasonable), (ii) is based on the best
information available to the Borrower after due inquiry, (iii) accurately
reflects all material adjustments necessary to give effect to the Transactions
and (iv) presents fairly, in all material respects, the pro forma financial
position of the Borrower and its consolidated Subsidiaries as of September 30,
1999 as if the Transactions had occurred on such date.
(c) Except as disclosed on Schedule 3.04, in the financial
statements referred to above or the notes thereto or in the Information
Memorandum and except for the Disclosed Matters, after giving effect to the
Transactions, none of the Borrower or its Subsidiaries has, as of the Effective
Date, any material contingent liabilities, unusual long-term commitments or
unrealized losses.
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(d) Since December 31, 1998, there has been no material
adverse change in the business, assets, operations, prospects or condition,
financial or otherwise, of the Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Schedule 3.05 sets forth the address of each real
property that is owned or leased by the Borrower or any of its Subsidiaries as
of the Effective Date after giving effect to the Transactions.
SECTION 3.06. Litigation and Environmental Matters. (a) There
are no actions, suits or proceedings by or before any arbitrator or
Governmental Authority pending against or, to the knowledge of the Borrower,
threatened against or affecting the Borrower or any of its Subsidiaries (i) as
to which there is a reasonable possibility of an adverse determination and
that, if adversely determined, could reasonably be expected, individually or in
the aggregate, to result in a Material Adverse Effect (other than the Disclosed
Matters) or (ii) that involve any of the Loan Documents or the Transactions.
(b) Except for the Disclosed Matters and except with respect
to any other matters that, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect, none of the
Borrower or its Subsidiaries (i) has failed to comply with any Environmental
Law or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect to
any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
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(c) Since the Effective Date of this Agreement, there has
been no change in the status of the Disclosed Matters that, individually or in
the aggregate, has resulted in, or materially increased the likelihood of, a
Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of
the Borrower and its Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. None of
the Borrower or any of its Subsidiaries is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Borrower and its
Subsidiaries has timely filed or caused to be filed all Tax returns or
extensions and reports required to have been filed and has paid or caused to be
paid all Taxes required to have been paid by it, except (a) any Taxes that are
being contested in good faith by appropriate proceedings and for which the
Borrower or such Subsidiary, as applicable, has set aside on its books adequate
reserves or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards
No. 87) did not, as of the date of the most recent financial statements
reflecting such amounts, exceed by more than $500,000 the fair market value of
the assets of such Plan, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of
the date of the most recent financial statements reflecting such amounts,
exceed by more than $500,000 the fair market value of the assets of all such
underfunded Plans.
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SECTION 3.11. Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments and corporate or other restrictions to
which the Borrower or any of its Subsidiaries is subject, and all other matters
known to any of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. None of the Information
Memorandum or any of the other reports, financial statements, certificates or
other information furnished by or on behalf of any Loan Party to the
Administrative Agent or any Lender in connection with the negotiation of this
Agreement or any other Loan Document or delivered hereunder or thereunder (as
modified or supplemented by other information so furnished) contains any
material misstatement of fact or omits to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading; provided that, with respect to projected financial
information, the Borrower represents only that such information was prepared in
good faith based upon assumptions believed to be reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name
of, and the ownership interest of the Borrower in, each direct and indirect
Subsidiary of the Borrower and identifies each such Subsidiary that is a
Subsidiary Loan Party, in each case as of the Effective Date.
SECTION 3.13. Insurance. Schedule 3.13 sets forth a
description of all insurance maintained by or on behalf of the Borrower and its
Subsidiaries as of the Effective Date. As of the Effective Date, all premiums
in respect of such insurance have been paid in accordance with their terms. The
Borrower believes that the insurance maintained by or on behalf of the Borrower
and its Subsidiaries is adequate.
SECTION 3.14. Labor Matters. As of the Effective Date, there
are no strikes, lockouts or slowdowns against the Borrower or any of its
Subsidiaries pending or, to the knowledge of the Borrower, threatened. The
hours worked by and payments made to employees of the Borrower and its
Subsidiaries have not been in violation of the Fair Labor Standards Act or any
other applicable Federal, state, local or foreign law dealing with such
matters, except where any such violations, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. All
payments due from the Borrower or any Subsidiary, or for which any claim may be
made against the Borrower or any Subsidiary, on account of wages and employee
health and welfare insurance and other benefits, have been paid or accrued as a
liability on the books of the Borrower or such Subsidiary. The consummation of
the Transactions will not give
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rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which the Borrower or any
Subsidiary is bound.
SECTION 3.15. Solvency. Immediately after the consummation of
the Transactions to occur on the Effective Date and immediately following the
making of each Loan made on the Effective Date and after giving effect to the
application of the proceeds of such Loans, (a) the fair value of the assets of
each Loan Party, at a fair valuation, will exceed its debts and liabilities,
subordinated, contingent or otherwise; (b) the present fair saleable value of
the property of each Loan Party will be greater than the amount that will be
required to pay the probable liability of its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each Loan Party will be able to pay its debts
and liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and (d) each Loan Party will not have
unreasonably small capital with which to conduct the business in which it is
engaged as such business is now conducted and is proposed to be conducted
following the Effective Date.
SECTION 3.16. Security Documents. (a) The Pledge Agreement is
effective to create in favor of the Collateral Agent, for the ratable benefit
of the Secured Parties, a legal, valid and enforceable security interest in the
Collateral (as defined in the Pledge Agreement) and, when the Collateral is
delivered to the Collateral Agent, the Pledge Agreement shall constitute a
fully perfected first priority Lien on, and security interest in, all right,
title and interest of the pledgor thereunder in such Collateral, in each case
prior and superior in right to any other person.
(b) The Security Agreement is effective to create in favor of
the Collateral Agent, for the ratable benefit of the Secured Parties, a legal,
valid and enforceable security interest in the Collateral (as defined in the
Security Agreement) and, when financing statements in appropriate form are
filed in the offices specified pursuant to the Perfection Certificate, the
Security Agreement shall constitute a fully perfected Lien on, and security
interest in, all right, title and interest of the grantors thereunder in such
Collateral (other than the Intellectual Property (as defined in the Security
Agreement), in each case prior and superior in right to any other person, other
than with respect to Liens expressly permitted by Section 6.02.
(c) When the Security Agreement is filed in the United States
Patent and Trademark Office and the United States
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Copyright Office, the Security Agreement shall constitute a fully perfected
Lien on, and security interest in, all right, title and interest of the Loan
Parties in the Intellectual Property (as defined in the Security Agreement) in
which a security interest may be perfected by filing, recording or registering
a security agreement, financing statement or analogous document in the United
States Patent and Trademark Office or the United States Copyright Office, as
applicable, in each case prior and superior in right to any other person (it
being understood that subsequent recordings in the United States Patent and
Trademark Office and the United States Copyright Office may be necessary to
perfect a lien on registered trademarks, trademark applications and copyrights
acquired by the Loan Parties after the Effective Date).
SECTION 3.17. Year 2000. Any reprogramming required to permit
the proper functioning, in and following the year 2000, of (i) the computer
systems of the Borrower and its Subsidiaries and (ii) equipment containing
embedded microchips (including, to the Borrower's knowledge, systems and
equipment supplied by others or, such material systems or equipment with which
the systems of the Borrower and its Subsidiaries interface) and the testing of
all such systems and equipment, as so reprogrammed, was completed in all
material respects by November 30, 1999. The cost to the Borrower and its
Subsidiaries of such reprogramming and testing and of the reasonably
foreseeable consequences of year 2000 to the Borrower and its Subsidiaries
(including reprogramming errors and, to the Borrower's knowledge, the failure
of the systems or equipment of others material to the Borrower or its
Subsidiaries) will not result in a Default or a Material Adverse Effect. Except
for such of the reprogramming referred to in the preceding sentence as may be
necessary, the computer and management information systems of the Borrower and
its Subsidiaries are and, with ordinary course upgrading and maintenance, will
continue for the term of this Agreement to be sufficient to permit the Borrower
to conduct its business without a Material Adverse Effect.
ARTICLE IV
Conditions
SECTION 4.01. Effective Date. The obligations of the Lenders
to make Loans and of the Issuing Bank to issue Letters of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 9.02):
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(a) The Administrative Agent (or its counsel) shall have
received from each party hereto either (i) a counterpart of this
Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement) that such
party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable
written opinion (addressed to the Administrative Agent and the Lenders
and dated the Effective Date) of Xxxxxxxxx & Xxxxxxx, counsel for the
Borrower and the Loan Parties, substantially in the form of Exhibit
B-1, and covering such other matters relating to the Loan Parties, the
Loan Documents or the Transactions as the Required Lenders shall
reasonably request. The Borrower hereby requests such counsel to
deliver such opinions.
(c) The Administrative Agent shall have received such
documents and certificates as the Administrative Agent or its counsel
may reasonably request relating to the organization, existence and
good standing of each Loan Party, the authorization of the
Transactions and any other legal matters relating to the Loan Parties,
the Loan Documents or the Transactions, all in form and substance
satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a
certificate, dated the Effective Date and signed by the President, a
Vice President or a Financial Officer of the Borrower, confirming
compliance with the conditions set forth in paragraphs (a) and (c) of
Section 4.02.
(e) The Administrative Agent shall have received all fees and
other amounts invoiced on or prior to the Effective Date, including,
to the extent invoiced, reimbursement or payment of all out-of-pocket
expenses (including fees, charges and disbursements of counsel)
required to be reimbursed or paid by any Loan Party hereunder or under
any other Loan Document.
(f) The Administrative Agent shall have received counterparts
of the Security Documents signed on behalf of each Loan Party,
together with the following:
(i) stock certificates representing all the
outstanding shares of capital stock or other Equity Interests
of (a) each Subsidiary of the Borrower, including CFN, iXL
Ventures and any Joint Venture
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Subsidiary and (b) any other Joint Venture (other than those
included in Schedule 4.01), in each case owned by or on
behalf of any Loan Party as of the Effective Date after
giving effect to the Transactions (except that such delivery
of stock certificates representing shares of common stock of
a Foreign Subsidiary may be limited to 65% of the outstanding
shares of common stock of such Foreign Subsidiary),
promissory notes evidencing all intercompany Indebtedness
owed to any Loan Party by the Borrower or any Subsidiary as
of the Effective Date after giving effect to the Transactions
and stock powers and instruments of transfer, endorsed in
blank, with respect to such stock certificates and promissory
notes;
(ii) all documents and instruments, including
Uniform Commercial Code financing statements, required by law
or reasonably requested by the Administrative Agent to be
filed, registered or recorded to create or perfect the Liens
intended to be created under the Security Agreement; and
(iii) a completed Perfection Certificate dated the
Effective Date and signed by a Financial Officer and Legal
Officer of the Borrower, together with all attachments
contemplated thereby, including the results of a search of
the Uniform Commercial Code (or equivalent) filings made with
respect to the Loan Parties in the jurisdictions contemplated
by the Perfection Certificate and copies of the financing
statements (or similar documents) disclosed by such search
and evidence reasonably satisfactory to the Administrative
Agent that the Liens indicated by such financing statements
(or similar documents) are permitted by Section 6.02 or have
been released.
(g) The Administrative Agent shall have received (i)
counterparts of the Guarantee Agreement signed on behalf of each
Subsidiary Loan Party and (ii) counterparts of the Indemnity,
Subrogation and Contribution Agreement signed on behalf of each
Subsidiary Loan Party.
(h) Each Loan Party shall have obtained all consents and
approvals required to be obtained by it in connection with the
execution and delivery of all Security Documents to which it is a
party, the performance of its obligations thereunder and the granting
by it of the Liens thereunder.
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(i) The Administrative Agent shall have received evidence
satisfactory to it that the insurance required by Section 5.07 is in
effect.
(j) The Lenders shall be reasonably satisfied as to the
amount and nature of any Environmental Liabilities and the employee
health and safety liabilities to which the Borrower and its
Subsidiaries may be subject, and the plans of the Borrower with
respect thereto, after giving effect to the Transactions and the
consummation of the other transactions contemplated hereby.
(k) The Borrower's Credit Agreement dated as of July 29,
1998, as amended and restated as of November 30, 1998, shall have been
terminated, all obligations thereunder (including obligations related
to the reimbursement of expenses and indemnities and invoiced legal
fees and disbursements) shall have been paid in full and all liens
securing such obligations shall have been released. After giving
effect to the Transactions, none of the Borrower or its Subsidiaries
(other than the CFN Subsidiaries, the iXL Ventures Subsidiaries and
the Joint Venture Subsidiaries) shall have outstanding any shares of
preferred stock or any Indebtedness, other than Indebtedness incurred
or otherwise permitted under the Loan Documents.
(l) The Administrative Agent shall have received a completed
Borrowing Base Certificate calculating and certifying as to the
Borrowing Base as of the end of the most recent calendar month ended
prior to the Effective Date, with supporting documentation (including,
without limitation, the documentation described in Schedule 1 to the
Borrowing Base Certificate), in each case signed on behalf of the
Borrower by a Financial Officer thereof and certified as being
complete and correct in all material respects;
(m) The Borrower shall have established the Chase Account and
a cash management system to the reasonable satisfaction of the
Administrative Agent.
(n) The Lenders shall have received audited consolidated
balance sheets and related statements of income, stockholder's or
member's equity as applicable and cash flows for Borrower for the
fiscal year ended December 31, 1998 reported on by
PricewaterhouseCoopers LLP, independent public accountants, and for
the 1999
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fiscal quarters prior to the Effective Date, and for all full fiscal
months since the end of the most recent fiscal quarter, and such
quarterly and monthly financial statements shall not (i) reflect any
material adverse change in the consolidated financial condition or
results of operations of the Borrower since December 31, 1998 or (ii)
be materially inconsistent with the financial statements or forecasts
previously provided to the Lenders.
(o) The Lenders shall have received financial projections of
the Borrower and the Subsidiary Loan Parties for the fiscal years 2000
through 2002 in form and substance satisfactory to the Administrative
Agent.
(p) All governmental and third party approvals and consents
necessary or, in the opinion of the Administrative Agent, advisable in
connection with the Transactions shall have been obtained by the
relevant Loan Party, all applicable appeal periods shall have expired,
there shall be no governmental or judicial action, actual or
threatened, that could reasonably be expected to have a Material
Adverse Effect.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
January 7, 2000 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of the Issuing Bank
to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of the Borrower and
each Subsidiary set forth in the Loan Documents shall be true and
correct on and as of the date of such Borrowing or the date of
issuance, amendment, renewal or extension of such Letter of Credit, as
applicable, except to the extent such representations and warranties
expressly relate to an earlier date in which case such representations
and warranties shall be true and correct as of such earlier date.
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(b) The Administrative Agent shall have received counterparts
of the depository agreement (in agreed form) signed on behalf of the
Borrower and First Union National Bank.
(c) Pursuant to Section 5.14, the Borrower has caused each of
the banks referred to therein to enter into a depository agreement (in
agreed form), unless otherwise agreed by the Administrative Agent.
(d) Pursuant to Section 5.03 of the Securities Agreement, the
Borrower has caused each Securities Intermediary (as defined therein)
to enter into a control agreement in agreed form.
(e) At the time of and immediately after giving effect to
such Borrowing or the issuance, amendment, renewal or extension of
such Letter of Credit, as applicable, no Default shall have occurred
and be continuing.
(f) After giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable, the aggregate Revolving Exposures will not exceed the
Borrowing Base.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter
of Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a), (b)
and (c) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the
principal of and interest on each Loan and all fees payable hereunder shall
have been paid in full and all Letters of Credit shall have expired or
terminated and all LC Disbursements shall have been reimbursed, the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The
Borrower will furnish to the Administrative Agent and each Lender:
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(a) within 90 days after the end of each fiscal year of the
Borrower, its audited consolidated and unaudited consolidating balance
sheets and related statements of operations, stockholders' equity and
cash flows as of the end of and for such year, setting forth in each
case in comparative form the figures for the previous fiscal year, all
reported on by PricewaterhouseCoopers LLP or other independent public
accountants of recognized national standing (without a "going concern"
or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material
respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower, its consolidated
and consolidating balance sheets and related statements of operations,
stockholders' equity and cash flows as of the end of and for such
fiscal quarter and the then elapsed portion of the fiscal year,
setting forth in each case in comparative form the figures for the
corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by
one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of the
Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes;
(c) within 30 days after the end of each of the first two
fiscal months of each fiscal quarter of the Borrower, its consolidated
balance sheet and related statements of operations, stockholders'
equity and cash flows as of the end of and for such fiscal month and
the then elapsed portion of the fiscal year, all certified by one of
its Financial Officers as presenting in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with
GAAP consistently applied, subject to normal year-end audit
adjustments and the absence of footnotes;
(d) concurrently with any delivery of financial statements
under clause (a) or (b) above, a certificate of
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a Financial Officer of the Borrower (i) certifying as to whether a
Default has occurred and, if a Default has occurred, specifying the
details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.13, 6.14 and 6.15 and (iii)
stating whether any change in GAAP or in the application thereof has
occurred since the date of the Borrower's audited financial statements
referred to in Section 3.04 and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
(e) concurrently with any delivery of financial statements
under clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained
knowledge during the course of their examination of such financial
statements of any Default (which certificate may be limited to the
extent required by accounting rules or guidelines);
(f) within 20 days after the end of each calendar month ended
after the Effective Date (and, if requested by the Administrative
Agent at any other time when the Administrative Agent reasonably
believes that the then-existing Borrowing Base is materially
inaccurate, as soon as reasonably available but no later than 10 days
after the request), a completed Borrowing Base Certificate in the form
of Exhibit G calculating and certifying the Borrowing Base as of the
last day of such calendar month (or as of such other requested date,
as the case may be), with supporting documentation (including, without
limitation, the documentation described in Schedule 1 to the Borrowing
Base Certificate), in each case signed on behalf of the Borrower by a
Financial Officer thereof and certified as being complete and correct
in all material respects;
(g) at least 30 days prior to the commencement of each fiscal
year of the Borrower, a detailed consolidated budget for such fiscal
year (including a projected consolidated balance sheet and related
statements of projected operations and cash flow as of the end of and
for such fiscal year) and, promptly when available, any significant
revisions of such budget;
(h) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other
materials filed by the Borrower or any of its Subsidiaries with the
Securities and Exchange Commission,
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or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders
generally, as the case may be; and
(i) promptly following any request therefor, such other
information regarding the operations, properties, business affairs and
financial condition of the Borrower or any of its Subsidiaries, or
compliance with the terms of any Loan Document, as the Administrative
Agent or any Lender may reasonably request.
SECTION 5.02. Notices of Material Events. The Borrower will
furnish to the Administrative Agent and each Lender prompt written notice of
the following:
(a) the occurrence of any default with respect to Permitted
Preferred Stock or any other Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority
against or affecting the Borrower or any Affiliate thereof that, if
adversely determined, could reasonably be expected to result in a
Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in liability of the Borrower and its Subsidiaries
in an aggregate amount exceeding $1,000,000; and
(d) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.
SECTION 5.03. Information Regarding Collateral. (a) The
Borrower will furnish to the Administrative Agent prompt written notice of any
change (i) in any Loan Party's corporate name or in any trade name used to
identify it in the conduct of its business or in the ownership of its
properties, (ii) in the location of any Loan Party's chief executive office,
its principal place of business, any office in which it maintains
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books or records relating to Collateral owned by it or any office or facility
at which Collateral owned by it is located (including the establishment of any
such new office or facility), (iii) in any Loan Party's identity or corporate
structure or (iv) in any Loan Party's Federal Taxpayer Identification Number.
The Borrower agrees not to effect or permit any change referred to in the
preceding sentence unless all filings have been made under the Uniform
Commercial Code or otherwise that are required in order for the Administrative
Agent to continue at all times following such change to have a valid, legal and
perfected security interest in all the Collateral. The Borrower also agrees
promptly to notify the Administrative Agent if any material portion of the
Collateral is damaged or destroyed.
(b) Each year, at the time of delivery of annual financial
statements with respect to the preceding fiscal year pursuant to clause (a) of
Section 5.01, the Borrower shall deliver to the Administrative Agent a
certificate of a Financial Officer (i) setting forth the information required
pursuant to Section 2 of the Perfection Certificate or confirming that there
has been no change in such information since the date of the Perfection
Certificate delivered on the Effective Date or the date of the most recent
certificate delivered pursuant to this Section and (ii) certifying that all
Uniform Commercial Code financing statements (including fixture filings, as
applicable) or other appropriate filings, recordings or registrations,
including all refilings, rerecordings and reregistrations, containing a
description of the Collateral have been filed of record in each governmental,
municipal or other appropriate office in each jurisdiction identified pursuant
to clause (i) above to the extent necessary to protect and perfect the security
interests under the Security Agreement for a period of not less than 18 months
after the date of such certificate (except as noted therein with respect to any
continuation statements to be filed within such period).
SECTION 5.04. Existence; Conduct of Business. (a) The
Borrower will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business; provided that the foregoing shall not prohibit any merger,
consolidation, liquidation or dissolution permitted under Section 6.03.
(b) The Borrower will, and will cause each of its
Subsidiaries to, conduct its business without infringement of any trademarks,
trade names, copyrights, patents or other
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intellectual property of any other Person that could reasonably be expected to
result in a Material Adverse Effect.
SECTION 5.05. Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay its Indebtedness and other
obligations, including Tax liabilities, before the same shall become delinquent
or in default, except where (a) the validity or amount thereof is being
contested in good faith by appropriate proceedings, (b) the Borrower or such
Subsidiary has set aside on its books adequate reserves with respect thereto in
accordance with GAAP, (c) such contest effectively suspends collection of the
contested obligation and the enforcement of any Lien securing such obligation
and (d) the failure to make payment pending such contest could not reasonably
be expected to result in a Material Adverse Effect.
SECTION 5.06. Maintenance of Properties. The Borrower will,
and will cause each of its Subsidiaries to, keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted.
SECTION 5.07. Insurance. The Borrower will, and will cause
each of its Subsidiaries to, maintain, with financially sound and reputable
insurance companies (i) adequate insurance for its insurable properties, all to
such extent and against such risks, including fire, casualty and other risks
insured against by extended coverage, as is customary with companies in the
same or similar businesses operating in the same or similar locations and (ii)
such other insurance as is required pursuant to the terms of any Security
Document.
SECTION 5.08. Books and Records; Inspection and Collateral
Review Rights. (a) The Borrower will, and will cause each of its Subsidiaries
to, keep proper books of record and account in which full, true and correct
entries in conformity with GAAP in all material respects and all requirements
of law are made of all dealings and transactions in relation to its business
and activities. The Borrower will, and will cause each of its Subsidiaries to,
permit any representatives designated by the Administrative Agent or any
Lender, upon reasonable prior notice, to visit and inspect its financial
records and properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all at such reasonable times and as often as
reasonably requested.
(b) From time to time upon the reasonable request of the
Administrative Agent, the Borrower will, and will cause each
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of its Subsidiaries to, permit the Administrative Agent or professionals
(including investment bankers, consultants, accountants, lawyers and
appraisers) retained by the Administrative Agent to conduct evaluations and
appraisals of (i) the Borrower's practices in the computation of the Borrowing
Base, (ii) the assets included in the Collateral and (iii) other related
financial information, and pay the reasonable fees (including in the case of
the Administrative Agent reasonable and customary fees) and expenses in
connection therewith, including without limitation, the fees (including in the
case of the Administrative Agent reasonable and customary fees) and expenses
associated with collateral monitoring services performed by the Collateral
Agent Services Group. In connection with any evaluation and appraisal relating
to the computation of the Borrowing Base, the Borrower also agrees to make such
other adjustments to the Borrowing Base as the Administrative Agent shall
reasonably require based upon the results of such evaluation and appraisal
(which may include maintaining additional reserves, modifying the advance rates
or modifying the eligibility criteria for the components of the Borrowing
Base).
(c) In the event that historical accounting practices,
systems or reserves relating to the components of the Borrowing Base are
modified in a manner that is adverse to the Lenders in any material respect,
the Borrower will agree to maintain such additional reserves (for purposes of
computing the Borrowing Base) in respect of the components of the Borrowing
Base and make such other adjustments to its parameters for including the
components of the Borrowing Base as the Collateral Agent or the Administrative
Agent, on behalf of the Required Lenders, shall reasonably require based upon
such modifications.
SECTION 5.09. Compliance with Laws. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.10. Use of Proceeds and Letters of Credit. The
proceeds of the Loans will be used only for general corporate purposes,
including working capital, acquisitions approved by the board of directors (or
other comparable governing body) of the Person to be acquired prior to the
initial public announcement thereof and capital expenditures. No part of the
proceeds of any Loan will be used, whether directly or indirectly, and whether
immediately, incidentally or ultimately, for any purpose that entails a
violation of, or that is inconsistent with, any of the Regulations of the
Board, including Regulations U and X. Letters of Credit will be issued only to
support obligations incurred by
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the Borrower in the ordinary course of its businesses, including operating
leases with respect to premises used by the Borrower and its Subsidiaries
(other than any CFN Subsidiary, any iXL Ventures Subsidiary and any Joint
Venture Subsidiary) in the conduct of its business.
SECTION 5.11. Additional Subsidiaries. If any additional
Subsidiary of the Borrower or any Joint Venture (other than any Subsidiary or
Joint Venture not owned by or on behalf of any Loan Party) is formed or
acquired after the Effective Date, the Borrower will notify the Administrative
Agent and the Lenders thereof and (a) will cause such Subsidiary (other than a
Foreign Subsidiary or a Joint Venture Subsidiary) to become a party to the
Guarantee Agreement, the Indemnity, Subrogation and Contribution Agreement and
each applicable Security Document in the manner provided therein within 10 Days
after such Subsidiary is formed or acquired and promptly take such actions to
create and perfect Liens on such Subsidiary's assets to secure the Obligations
as the Administrative Agent or the Required Lenders shall reasonably request
and (b) if any Equity Interests or Indebtedness of such Subsidiary or Joint
Venture are owned by or on behalf of any Loan Party, will cause such Equity
Interests and promissory notes evidencing such Indebtedness to be pledged
pursuant to the Pledge Agreement within 10 days after such Subsidiary or Joint
Venture is formed or acquired (except that, if such Subsidiary is a Foreign
Subsidiary, shares of common stock of such Subsidiary that are owned by or on
behalf of any Loan Party and that are to be pledged pursuant to the Pledge
Agreement may be limited to 65% of the outstanding shares of common stock of
such Subsidiary).
SECTION 5.12. Further Assurances. (a) The Borrower will, and
will cause each Subsidiary Loan Party to, execute any and all further
documents, financing statements, agreements and instruments, and take all such
further actions (including the filing and recording of financing statements,
fixture filings, mortgages, deeds of trust and other documents), that may be
required under any applicable law, or which the Administrative Agent or the
Required Lenders may reasonably request, to effectuate the transactions
contemplated by the Loan Documents or to grant, preserve, protect or perfect
the Liens created or intended to be created by the Security Documents or the
validity or priority of any such Lien, all at the expense of the Loan Parties.
The Borrower also agrees to provide to the Administrative Agent, from time to
time upon request, evidence reasonably satisfactory to the Administrative Agent
as to the perfection and priority of the Liens created or intended to be
created by the Security Documents.
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(b) If any material assets (including any real property or
improvements thereto or any interest therein but excluding real property
leases) are acquired by the Borrower or any Subsidiary Loan Party after the
Effective Date (other than assets constituting Collateral under the Security
Agreement that become subject to the Lien of the Security Agreement upon
acquisition thereof), the Borrower will notify the Administrative Agent and the
Lenders thereof, and, if requested by the Administrative Agent or the Required
Lenders, the Borrower will cause such assets to be subjected to a Lien securing
the Obligations and will take, and cause the Subsidiary Loan Parties to take,
such actions as shall be necessary or reasonably requested by the
Administrative Agent to grant and perfect such Liens, including actions
described in paragraph (a) of this Section, all at the expense of the Loan
Parties.
(c) The Borrower will as soon as practicable and in no event
later than 120 days after the date hereof, execute a pledge agreement,
representing the pledge of 65% of the shares of capital stock of iXL-Germany
GmbH in the form substantially identical to the Pledge Agreement dated as of
June 9, 1999 among the Borrower, iXL-Germany GmbH and The Chase Manhattan Bank.
(d) The Borrower will deliver, no later than 10 days
following the date hereof, an executed depository agreement among the Borrower,
The Chase Manhattan Bank, as Collateral Agent and First Union National Bank, as
Sub-Agent, substantially in the form of Exhibit H attached hereto, or otherwise
agreed by the Administrative Agent.
SECTION 5.13. Federal Reserve Regulations. Neither the
Borrower nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
SECTION 5.14. Bank Account. The Borrower will, and the
Borrower will cause each of its Subsidiaries (other than the CFN Subsidiaries,
the iXL Ventures Subsidiaries and the Joint Venture Subsidiaries) to, transfer
to the Chase Account on a daily basis all of its cash pursuant to the terms and
conditions contained in the Security Agreement; provided that (i) the Borrower
will cause each of the banks (other than Chase) holding accounts of the
Borrower or its Subsidiaries in the ten locations in the United States which
generate the greatest percentage of revenues for the Borrower and its
Subsidiaries, taken as a whole, and any other bank, in the discretion of the
Administrative Agent, to enter into a depository agreement, in a form to be
mutually agreed upon between the Administrative Agent and the Borrower, as soon
as practicable and in no event later than March 31, 2000, (ii) the Borrower
will cause each of the banks holding accounts of the Borrower or its
Subsidiaries established after the Closing Date to enter into a depository
agreement, in a form to be mutually agreed upon between the Administrative
Agent and the
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Borrower, as soon as practicable and in no event later than 90 days after such
account has been established and (iii) if an Event of Default has occurred and
is continuing, the Collateral Agent may, at its election, (A) apply the funds
then held in the Chase Account pursuant to the terms of the Security Agreement
and (B) review the cash management system of the Borrowers and its Subsidiaries
and require the Borrower to institute a new cash management system (including,
without limitation, the use of a lockbox system).
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the
principal of and interest on each Loan and all fees payable hereunder have been
paid in full and all Letters of Credit have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees
with the Lenders that:
SECTION 6.01. Indebtedness and Preferred Stock.
(a) The Borrower will not, nor will it permit any of its Subsidiaries (other
than the CFN Subsidiaries, the iXL Ventures Subsidiaries or the Joint Venture
Subsidiaries, except at any time that loans or advances by the Borrower to any
of the CFN Subsidiaries, the iXL Ventures Subsidiaries or the Joint Venture
Subsidiaries, as applicable, pursuant to Section 6.04(d) shall remain
outstanding) to, create, incur, assume or permit to exist any Indebtedness,
except:
(i) Indebtedness created under the Loan Documents;
(ii) Indebtedness existing on the Effective Date and set
forth in Schedule 6.01, and any extensions, renewals or replacements
of any such Indebtedness that (A) do not increase the outstanding
principal amount thereof, (B) do not result in an earlier maturity
date or decreased weighted average life thereof and (C) are
consummated on terms and subject to conditions no more restrictive
than are in existence with respect to such Indebtedness as of the
Effective Date; provided, that any Indebtedness owed by any of the CFN
Subsidiaries, the iXL Ventures Subsidiaries
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or the Joint Venture Subsidiaries to the Borrower or any Subsidiary
Loan Party shall not be reborrowed following repayment thereof;
(iii) Indebtedness of any Loan Party to any other Loan Party;
(iv) Guarantees by the Borrower of Indebtedness of any other
Subsidiary Loan Party permitted hereunder;
(v) Indebtedness of the Borrower or any Subsidiary Loan
Party incurred to finance the acquisition, construction or improvement
of any fixed or capital assets, including Capital Lease Obligations
and any Indebtedness assumed in connection with the acquisition of any
such assets or secured by a Lien on any such assets prior to the
acquisition thereof, and extensions, renewals and replacements of any
such Indebtedness that do not increase the outstanding principal
amount thereof; provided that (A) such Indebtedness is incurred prior
to or within 90 days after such acquisition or the completion of such
construction or improvement and (B) the aggregate principal amount of
Indebtedness permitted by this clause (v) shall not exceed $15,000,000
at any time outstanding;
(vi) Indebtedness of any Person that becomes a Subsidiary
after the Effective Date; provided that (A) such Indebtedness exists
at the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a
Subsidiary and (B) the aggregate principal amount of Indebtedness
permitted by this clause (vi) shall not exceed $4,000,000 at any time
outstanding; and
(vii) Indebtedness not yet due that arises pursuant to
provisions in acquisition agreements relating to minimal contingent
purchase price adjustments in connection with Permitted Acquisitions;
and
(viii) Permitted Subordinated Indebtedness.
(b) The Borrower will not, nor will it permit any of its
Subsidiaries (other than the CFN Subsidiaries, the iXL Ventures Subsidiaries
and the Joint Venture Subsidiaries) to issue or permit to exist any shares of
preferred stock, except shares of Permitted Preferred Stock.
SECTION 6.02. Liens. The Borrower will not, nor will the
Borrower permit any of its Subsidiaries (other than the CFN
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Subsidiaries, the iXL Ventures Subsidiaries and the Joint Venture Subsidiaries,
except at any time that loans or advances by the Borrower to any of the CFN
Subsidiaries, the iXL Ventures Subsidiaries or the Joint Venture Subsidiaries,
as applicable, pursuant to Section 6.04(d) shall remain outstanding) to,
create, incur, assume or permit to exist any Lien on any property or asset now
owned or hereafter acquired by it, or assign or sell any income or revenues
(including accounts receivable) or rights in respect of any thereof, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Encumbrances;
(iii) any Lien on any property or asset of any Subsidiary
of the Borrower existing on the Effective Date and set forth in
Schedule 6.02; provided that (A) such Lien shall not apply to any
other property or asset of any Subsidiary of the Borrower and (B) such
Lien shall secure only those obligations that it secures on the
Effective Date and extensions, renewals and replacements thereof that
do not increase the outstanding principal amount thereof.
(iv) any Lien existing on any property or asset prior to
the acquisition thereof by the Borrower or any Subsidiary or existing
on any property or asset of any Person that becomes a Subsidiary after
the Effective Date hereof prior to the time such Person becomes a
Subsidiary; provided that (A) such Lien is not created in
contemplation of or in connection with such acquisition or such Person
becoming a Subsidiary, as the case may be, (B) such Lien shall not
apply to any other property or assets of the Borrower or any
Subsidiary, (C) such Lien shall not exist on any such acquired assets
intended to be included in the Borrowing Base and (D) such Lien shall
secure only those obligations that it secures on the date of such
acquisition or the date such Person becomes a Subsidiary, as the case
may be, and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(v) Liens on fixed or capital assets acquired,
constructed or improved by the Borrower or any Subsidiary; provided
that (A) such security interests secure Indebtedness permitted by
clause (v) of Section 6.01, (B) such security interests and the
Indebtedness secured thereby are incurred prior to or within 90 days
after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not
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exceed 100% of the cost of acquiring, constructing or improving such
fixed or capital assets and (D) such security interests shall not
apply to any other property or assets of the Borrower or any
Subsidiary; and
(vi) Liens (other than those permitted by paragraphs (i)
through (v) above and other than Liens on Collateral) securing
liabilities permitted hereunder in an aggregate amount not exceeding
$500,000 at any time outstanding.
SECTION 6.03. Fundamental Changes. (a) The Borrower will not,
nor will the Borrower permit any of its Subsidiaries (other than the CFN
Subsidiaries, the iXL Ventures Subsidiaries and the Joint Venture Subsidiaries)
to, merge into or consolidate with any other Person, or permit any other Person
to merge into or consolidate with it, or liquidate or dissolve, except that, if
at the time thereof and immediately after giving effect thereto no Default
shall have occurred and be continuing (i) any Subsidiary (other than a CFN
Subsidiary, an iXL Ventures Subsidiary or a Joint Venture Subsidiary) may merge
into the Borrower in a transaction in which the Borrower is the surviving
corporation, (ii) any Subsidiary may merge into any Subsidiary Loan Party in a
transaction in which the surviving entity is a Subsidiary Loan Party, (iii) any
Foreign Subsidiary may merge into any other Foreign Subsidiary and (iv) any
Subsidiary of the Borrower may liquidate or dissolve if the Borrower determines
in good faith that such liquidation or dissolution is in the best interests of
the Borrower and is not materially disadvantageous to the Lenders; provided
that any such merger involving a Person that is not a wholly owned Subsidiary
immediately prior to such merger shall not be permitted unless also permitted
by Section 6.04.
(b) The Borrower will not, nor will the Borrower permit any
of its Subsidiaries to, engage to any material extent in any business other
than internet or media related businesses.
(c) The Borrower will not engage in any business or activity
other than (i) the ownership of all the outstanding shares of capital stock of
the Subsidiary Loan Parties and any Foreign Subsidiaries, (ii) the maintenance
of investments permitted under Section 6.04 and (iii) activities incidental
thereto. The Borrower will not own or acquire any assets (other than shares of
capital stock of the Subsidiary Loan Parties, CFN, iXL Ventures, any Joint
Venture Subsidiary or any Foreign Subsidiaries, cash and Permitted Investments)
or incur any liabilities (other than Indebtedness permitted by Section 6.01,
liabilities under the Loan Documents, liabilities imposed by law,
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including tax liabilities, and other liabilities incidental to its existence
and permitted business and activities).
SECTION 6.04. Investments, Loans, Advances, Guarantees and
Acquisitions. The Borrower will not, nor will the Borrower permit any of its
Subsidiaries (other than the CFN Subsidiaries, the iXL Ventures Subsidiaries
and the Joint Venture Subsidiaries) to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly owned Subsidiary
prior to such merger) any capital stock, evidences of indebtedness or other
securities (including any option, warrant or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guarantee any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person, or purchase or otherwise acquire (in one transaction or a
series of transactions) any assets of any other Person constituting a business
unit, except:
(a) Permitted Investments;
(b) investments existing on the Effective Date and set forth
on Schedule 6.04, to the extent such investments would not be
permitted under any other clause of this Section;
(c) investments by the Borrower in the capital stock of the
CFN Subsidiaries, the iXL Ventures Subsidiaries, any Joint Venture
Subsidiary, the Subsidiary Loan Parties and any Foreign Subsidiaries
and investments by any Subsidiary Loan Party, CFN Subsidiary or iXL
Ventures Subsidiary in the capital stock of its Subsidiaries; provided
that (i) any such shares of capital stock owned by or on behalf of a
Loan Party shall be pledged pursuant to the Pledge Agreement (subject
to the limitations applicable to common stock of a Foreign Subsidiary
referred to in Section 5.12), and (ii) the aggregate amount of
investments by the Borrower in, loans and advances by the Borrower to,
and Guarantees by the Borrower of Indebtedness of the Subsidiary Loan
Parties, the CFN Subsidiaries, the iXL Ventures Subsidiaries and any
Joint Venture Subsidiary shall not exceed $10,000,000 at any time
outstanding plus the amount of any investment by the Borrower in the
CFN Subsidiaries, the iXL Subsidiaries and the Joint Venture
Subsidiaries permitted under clause (b) above; notwithstanding the
foregoing, as of any date, in the event the aggregate amount of
investments by the Borrower pursuant to this clause (c) is equal to
$10,000,000, the Borrower may make additional investments in, loans
and advances to and Guarantees of Indebtedness of any Person
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described in (ii) above in an aggregate amount not in excess of an
additional $15,000,000; provided that (i) cash and cash equivalents of
the Borrower total at least $50,000,000 in the aggregate and (ii) no
Loans are outstanding;
(d) loans or advances made by (i) any Subsidiary Loan Party
to any other Subsidiary Loan Party, (ii) any Foreign Subsidiary to any
other Foreign Subsidiary and (iii) subject to the limitations set
forth in clause (c) above, the Borrower to any CFN Subsidiary, any iXL
Ventures Subsidiary or any Joint Venture Subsidiary; provided that any
such loans and advances by a Loan Party shall be evidenced by a
promissory note pledged pursuant to the Pledge Agreement;
(e) Guarantees by the Borrower constituting Indebtedness
permitted by Section 6.01; provided that no Loan Party may enter into
any Guarantee in respect of a CFN Subsidiary, an iXL Subsidiary or any
Joint Venture Subsidiary;
(f) Guarantees by the Borrower of operating lease obligations
of any Subsidiary Loan Party; provided that such operating leases are
entered into in the ordinary course of business;
(g) Guarantees by the Borrower of credit card Indebtedness
incurred by employees of the Borrower or any Subsidiary Loan Parties;
provided that the aggregate amount of such Guarantee permitted by this
clause (g) shall not exceed $250,000 at any time outstanding;
(h) investments received in connection with the bankruptcy or
reorganization of, or settlement of delinquent accounts and disputes
with, customers and suppliers, in each case in the ordinary course of
business;
(i) Permitted Acquisitions;
(j) prepaid expenses in the ordinary course of business;
(k) loans to employees of the Borrower and the Subsidiaries
in their capacity as such, in an aggregate principal amount not to
exceed $250,000 at any time outstanding;
(l) Hedging Agreements permitted under Section 6.07;
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(m) promissory notes received upon a sale of assets permitted
under Section 6.05;
(n) investments in an executive employee benefit fund;
provided that such investments do not exceed $7,500,000 during any
fiscal year and $15,000,000 in the aggregate;
(o) Loans by the Borrower to Foreign Subsidiaries in an
aggregate amount not to exceed $20,000,000; provided that any such
loans shall be evidenced by a promissory note pledged pursuant to the
Pledge Agreement;
(p) other investments in an aggregate amount not to exceed
$2,000,000 at any time outstanding; and
(q) non-recourse loans made by the Borrower to any of its
employees in connection with the purchase of stock of the Borrower by
such employee; provided that (i) such employee pledges such purchased
stock as collateral with respect to such non-recourse loan, (ii) any
such transaction does not involve the payment of cash by the Borrower
to such employee and (iii) the aggregate amount of such loans does not
exceed $5,000,000 at any time outstanding.
SECTION 6.05. Asset Sales. The Borrower will not, nor will
the Borrower permit any of its Subsidiaries (other than the CFN Subsidiaries,
the iXL Ventures Subsidiaries and the Joint Venture Subsidiaries) to, sell,
transfer, lease or otherwise dispose of any asset, including any capital stock
owned by any of them, nor will the Borrower permit any of its Subsidiaries
(other than the CFN Subsidiaries, the iXL Ventures Subsidiaries and the Joint
Venture Subsidiaries) to issue any additional shares of its capital stock or
other ownership interest in such Subsidiary, except:
(a) sales of inventory, used or surplus equipment and
Permitted Investments in the ordinary course of business;
(b) sales, transfers and dispositions by any Subsidiary of
the Borrower to any other Subsidiary of the Borrower; provided that
(i) capital stock of a Subsidiary Loan Party shall not be sold or
transferred to a Subsidiary that is not a Subsidiary Loan Party and
(ii) any such sales, transfers or dispositions involving a Subsidiary
that is not a Subsidiary Loan Party shall be made in compliance with
Section 6.09;
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(c) sales, transfers and dispositions of any asset by the
Borrower or any Subsidiary for which the aggregate fair market value
of all consideration payable for such asset sold, transferred or
otherwise disposed of does not exceed $250,000; and
(d) sales, transfers and dispositions of assets by
Subsidiaries of the Borrower (other than capital stock of a
Subsidiary) that are not permitted by any other clause of this
Section; provided that the aggregate fair market value of all assets
sold, transferred or otherwise disposed of in reliance upon this
clause (d) shall not exceed $5,000,000 in the aggregate;
provided that all sales, transfers, leases and other dispositions permitted
hereby shall be made for fair value and for at least 80% cash consideration
except to the extent set forth on Schedules 6.05 and 6.09.
SECTION 6.06. Sale and Lease-Back Transactions. The Borrower
will not, nor will the Borrower permit any of its Subsidiaries (other than the
CFN Subsidiaries, the iXL Ventures Subsidiaries and the Joint Venture
Subsidiaries) to, enter into any arrangement, directly or indirectly, with any
Person whereby it shall sell or transfer any property, real or personal, used
or useful in its business, whether now owned or hereafter acquired, and
thereafter rent or lease such property or other property which it intends to
use for substantially the same purpose or purposes as the property being sold
or transferred, except for any such sale of fixed or capital assets that is
consummated within 90 days after the date the Borrower or any such Subsidiary,
acquires or finished construction of such fixed or capital asset; provided that
the sum of the aggregate amount of Attributable Debt in respect of all such
sale and leaseback transactions shall not exceed $1,000,000 at any time
outstanding.
SECTION 6.07. Hedging Agreements. The Borrower will not, nor
will the Borrower permit any of its Subsidiaries (other than the CFN
Subsidiaries, the iXL Ventures Subsidiaries and the Joint Venture Subsidiaries)
to, enter into any Hedging Agreement, other than nonspeculative Hedging
Agreements entered into by the Borrower in the ordinary course of business to
hedge or mitigate risks to which the Borrower or its Subsidiaries (other than
the CFN Subsidiaries, the iXL Ventures Subsidiaries and the Joint Venture
Subsidiaries) is exposed in the conduct of its business or the management of
its liabilities.
SECTION 6.08. Restricted Payments; Certain Payments of
Indebtedness. (a) The Borrower will not, nor will the
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Borrower permit any of its Subsidiaries (other than the CFN Subsidiaries, the
iXL Ventures Subsidiaries and the Joint Venture Subsidiaries) to, declare or
make, or agree to pay or make, directly or indirectly, any Restricted Payment,
or incur any obligation (contingent or otherwise) to do so, except (i) the
Borrower may declare and pay dividends ratably with respect to its capital
stock payable solely in additional shares of its common stock, (ii) any
Subsidiary Loan Party may declare and pay dividends ratably with respect to its
capital stock to the Borrower; (iii) any Subsidiary of a Subsidiary Loan Party
may declare and pay dividends ratably with respect to its capital stock to a
Subsidiary Loan Party or the Borrower, (iv) the Borrower's Subsidiaries may
make payments to the Borrower pursuant to and in accordance with the Tax
Allocation Agreement dated the date hereof between the Borrower and its
Subsidiaries and (v) the Borrower may, pursuant to and in accordance with stock
option plans, warrant plans or other benefit plans for management or employees
of the Borrower and its Subsidiaries, make Restricted Payments not exceeding
$3,000,000 during any fiscal year so long as no Event of Default has occurred
and is continuing. The Borrower will not permit any CFN Subsidiary, iXL
Ventures Subsidiary or any Joint Venture Subsidiary to make any payment
(whether in cash, securities or other property) on account of the purchase,
redemption, retirement, acquisition, cancelation or termination of any shares
of capital stock of the Borrower or any option, warrant or other right to
acquire any such shares.
(b) The Borrower will not, nor will the Borrower permit any
of its Subsidiaries (other than the CFN Subsidiaries, the iXL Ventures
Subsidiaries and the Joint Venture Subsidiaries) to, make or agree to pay or
make, directly or indirectly, any payment or other distribution (whether in
cash securities or other property) of or in respect of principal of or interest
on any Indebtedness, or any payment or other distribution (whether in cash,
securities or other property), including any sinking fund or similar deposit,
on account of the purchase, redemption, retirement, acquisition, cancelation or
termination of any Indebtedness, except:
(i) payment of Indebtedness created under the Loan
Documents;
(ii) payment of regularly scheduled interest and principal
payments as and when due in respect of any Indebtedness (to the extent
not prohibited by applicable subordination provisions, if any);
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(iii) refinancings of Indebtedness to the extent permitted
by Section 6.01; and
(iv) payment of Indebtedness permitted by Section 6.01
(iii) or (vi).
SECTION 6.09. Transactions with Affiliates. Except as set
forth in Schedule 6.09, the Borrower will not nor will the Borrower permit any
of its Subsidiaries to, sell, lease or otherwise transfer any property or
assets to, or purchase, lease or otherwise acquire any property or assets from,
or otherwise engage in any other transactions with, any of its Affiliates,
except (a) transactions in the ordinary course of business that are at prices
and on terms and conditions not less favorable to any Subsidiary of the
Borrower than could be obtained on an arm's-length basis from unrelated third
parties, (b) transactions between or among the Loan Parties not involving any
other Affiliate and (c) any Restricted Payment permitted by Section 6.08.
SECTION 6.10. Restrictive Agreements. The Borrower will not,
nor will the Borrower permit any Subsidiary Loan Party to, directly or
indirectly, enter into, incur or permit to exist any agreement or other
arrangement that prohibits, restricts or imposes any condition upon (a) the
ability of the Borrower or any Subsidiary Loan Party to create, incur or permit
to exist any Lien upon any of its property or assets, or (b) the ability of any
Subsidiary Loan Party to pay dividends or other distributions with respect to
any shares of its capital stock or to make or repay loans or advances to any
other Subsidiary Loan Party or to Guarantee Indebtedness of any other
Subsidiary Loan Party; provided that (i) the foregoing shall not apply to
restrictions and conditions imposed by law or by any Loan Document, (ii) the
foregoing shall not apply to restrictions and conditions existing on the
Effective Date identified on Schedule 6.10 (but shall apply to any extension or
renewal of, or any amendment or modification expanding the scope of, any such
restriction or condition), (iii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale; provided such restrictions and conditions apply
only to the Subsidiary that is to be sold and such sale is permitted hereunder,
(iv) clause (a) of the foregoing shall not apply to restrictions or conditions
imposed by any agreement relating to secured Indebtedness permitted by this
Agreement if such restrictions or conditions apply only to the property or
assets securing such Indebtedness and (v) clause (a) of the foregoing shall not
apply to customary provisions in leases restricting the assignment thereof.
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SECTION 6.11. Amendment of Material Documents. The Borrower
will not, nor will the Borrower permit any of its Subsidiaries to, amend,
modify or waive any of its rights under (a) its certificate of incorporation,
by-laws or other organizational documents (other than of the CFN Subsidiaries),
(b) the Tax Sharing Agreement or (c) any of the instruments, agreements or
documents evidencing or related to the Borrower's Permitted Preferred Stock and
any Permitted Subordinated Indebtedness; provided that the Borrower or any
Subsidiary may amend, modify or waive any of its rights under clause (c) above
if such amendment, modification or waiver (i) is on terms no less favorable to
the Borrower and its Subsidiaries than would be obtained on an arm's length
basis from unrelated third parties and (ii) is not, individually or in the
aggregate, in any manner adverse to the Lenders in any material respect.
SECTION 6.12. Subsidiaries. The Borrower will not have any
Subsidiary (other than the CFN Subsidiaries, the iXL Ventures Subsidiaries and
the Joint Venture Subsidiaries) unless such Subsidiary is wholly owned,
directly or indirectly, by the Borrower, and the Borrower will not take any
action that would result in any Subsidiary (other than the CFN Subsidiaries,
the iXL Subsidiaries and the Joint Venture Subsidiaries) ceasing to be a wholly
owned Subsidiary of the Borrower; provided that the Borrower may permit the
sale of up to 10% of the outstanding capital stock of iXL - Madrid, S.A.
SECTION 6.13. Capital Expenditures. The Borrower will not
permit the aggregate amount of Capital Expenditures in any fiscal year to
exceed the Budgeted Amount. Notwithstanding the foregoing, in the event the
Borrower has made Capital Expenditures in an amount less than the Budgeted
Amount during any fiscal year, the Borrower may carry over into the following
fiscal year the lesser of (i) $37,500,000 or (ii) such amount of the Budgeted
Amount to the extent not utilized; provided that the Borrower first utilizes
the Budgeted Amount during such subsequent fiscal year.
SECTION 6.14. Minimum Consolidated EBITDA. The Borrower will
not permit Consolidated EBITDA for any of the following periods ending on any
date set forth below to be less than the amount set forth below opposite such
date:
Date Amount
---- ------
Twelve Months Ending March 31, 2000 $ 8,000,000
Twelve Months Ending June 30, 2000 15,000,000
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Date Amount
---- ------
Twelve Months Ending September 30, 2000 22,500,000
Twelve Months Ending December 31, 2000 27,500,000
Twelve Months Ending March 31, 2001 32,500,000
Twelve Months Ending June 30, 2001 35,000,000
Twelve Months Ending September 30, 2001 37,500,000
Twelve Months Ending December 31, 2001 40,000,000
Twelve Months Ending March 31, 2002 40,000,000
Twelve Months Ending June 30, 2002 40,000,000
Twelve Months Ending September 30, 2002 40,000,000
Twelve Months Ending December 31, 2002 55,000,000
SECTION 6.15. Total Debt to Consolidated Net Worth. The
Borrower will not permit the ratio of Total Debt to Consolidated Net Worth as
of any date to be in excess of .15 to 1.00.
SECTION 6.16. Fiscal Year. The Borrower will not change the
end of its fiscal year from December 31 to any other date.
ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall
occur:
(a) the Borrower shall fail to pay any principal of any Loan
or any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and
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payable, whether at the due date thereof or at a date fixed for
prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan
or any fee or any other amount (other than an amount referred to in
clause (a) of this Article) payable under this Agreement or any other
Loan Document, when and as the same shall become due and payable, and
such failure shall continue unremedied for a period of three Business
Days;
(c) any representation or warranty made or deemed made by or
on behalf of any Loan Party in or in connection with any Loan Document
or any amendment or modification thereof or waiver thereunder, or in
any report, certificate, financial statement or other document
furnished pursuant to or in connection with any Loan Document or any
amendment or modification thereof or waiver thereunder, shall prove to
have been incorrect (in the case of any representation or warranty
that is not qualified as to materiality, in any material respect) when
made or deemed made;
(d) the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.01(f), 5.02,
5.04 (with respect to the existence of the Borrower), 5.10, or in
Article VI;
(e) any Loan Party shall fail to observe or perform any
covenant, condition or agreement contained (a) in Section 5.11, and
such failure shall continue unremedied for a period of 10 days or (b)
in any Loan Document (other than those specified in clause (a), (b),
(c) or (d) of this Article), and such failure shall continue
unremedied for a period of 30 days, in each case after notice thereof
from the Administrative Agent to the Borrower (which notice will be
given at the request of any Lender);
(f) the Borrower or any of its Subsidiaries shall fail to
make any payment (whether of principal or interest and regardless of
amount) in respect of any Material Indebtedness, when and as the same
shall become due and payable;
(g) any event or condition occurs that results in any
Material Indebtedness becoming due prior to its scheduled maturity or
that enables or permits (with or without the giving of notice, the
lapse of time or both) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause
any Material Indebtedness to become due, or to require the prepayment,
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repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation,
reorganization or other relief in respect of the Borrower or any of
its Subsidiaries or its debts, or of a substantial part of its assets,
under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its
Subsidiaries or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60
days or an order or decree approving or ordering any of the foregoing
shall be entered;
(i) the Borrower or any of its Subsidiaries shall (i)
voluntarily commence any proceeding or file any petition seeking
liquidation, reorganization or other relief under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to
contest in a timely and appropriate manner, any proceeding or petition
described in clause (h) of this Article, (iii) apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator,
conservator or similar official for the Borrower or any of its
Subsidiaries or for a substantial part of its assets, (iv) file an
answer admitting the material allegations of a petition filed against
it in any such proceeding, (v) make a general assignment for the
benefit of creditors or (vi) take any action for the purpose of
effecting any of the foregoing;
(j) the Borrower or any of its Subsidiaries shall become
unable, admit in writing its inability or fail generally to pay its
debts as they become due;
(k) one or more judgments for the payment of money in an
aggregate amount in excess of $1,000,000 shall be rendered against the
Borrower, any of its Subsidiaries or any combination thereof and the
same shall remain undischarged for a period of 30 consecutive days
during which execution shall not be effectively stayed, or any
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action shall be legally taken by a judgment creditor to attach or levy
upon any assets of the Borrower or any of its Subsidiaries to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion
of the Required Lenders, when taken together with all other ERISA
Events that have occurred, could reasonably be expected to result in a
Material Adverse Effect;
(m) any Lien purported to be created under any Security
Document shall cease to be, or shall be asserted by any Loan Party not
to be, a valid and perfected Lien on any Collateral, with the priority
required by the applicable Security Document, except (i) as a result
of the sale or other disposition of the applicable Collateral in a
transaction permitted under the Loan Documents or (ii) as a result of
the Administrative Agent's failure to maintain possession of any stock
certificates, promissory notes or other instruments delivered to it
under the Pledge Agreement; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i) terminate
the Commitments, and thereupon the Commitments shall terminate immediately, and
(ii) declare the Loans then outstanding to be due and payable in whole (or in
part, in which case any principal not so declared to be due and payable may
thereafter be declared to be due and payable), and thereupon the principal of
the Loans so declared to be due and payable, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
and in case of any event with respect to the Borrower described in clause (h)
or (i) of this Article, the Commitments shall automatically terminate and the
principal of the Loans then outstanding, together with accrued interest thereon
and all fees and other obligations of the Borrower accrued hereunder, shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
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ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably
appoints the Administrative Agent as its agent and authorizes the
Administrative Agent to take such actions on its behalf and to exercise such
powers as are delegated to the Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto.
The bank serving as the Administrative Agent hereunder shall
have the same rights and powers in its capacity as a Lender as any other Lender
and may exercise the same as though it were not the Administrative Agent, and
such bank and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of business with the Borrower or any of its
Subsidiaries or other Affiliate thereof as if it were not the Administrative
Agent hereunder.
The Administrative Agent shall not have any duties or
obligations except those expressly set forth in the Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall
not be subject to any fiduciary or other implied duties, regardless of whether
a Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated by the Loan Documents that the Administrative Agent is required to
exercise in writing by the Required Lenders (or such other number or percentage
of the Lenders as shall be necessary under the circumstances as provided in
Section 9.02), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by
it with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or wilful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any
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duty to ascertain or inquire into (i) any statement, warranty or representation
made in or in connection with any Loan Document, (ii) the contents of any
certificate, report or other document delivered thereunder or in connection
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth in any Loan Document, (iv)
the validity, enforceability, effectiveness or genuineness of any Loan Document
or any other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere in any Loan Document, other than
to confirm receipt of items expressly required to be delivered to the
Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and
shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing believed
by it to be genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.
The Administrative Agent may perform any and all its duties
and exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of each Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor the
Administrative Agent as provided in this paragraph, the Administrative Agent
may resign at any time by notifying the Lenders, the Issuing Bank and the
Borrower. Upon any such resignation, the Required Lenders shall have the right,
in consultation with the Borrower (provided that no Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative
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Agent gives notice of its resignation, then the retiring Administrative Agent
may, on behalf of the Lenders and the Issuing Bank, appoint a successor
Administrative Agent that shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
Each Lender acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Lender and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make
its own decisions in taking or not taking action under or based upon this
Agreement, any other Loan Document or related agreement or any document
furnished hereunder or thereunder.
The provisions of this Article applicable to the
Administrative Agent also shall apply to the Collateral Agent in its capacity
as such. The Syndication Agent shall not have any duties or obligations
pursuant to this Agreement.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. Except in the case of notices and
other communications expressly permitted to be given by telephone, all notices
and other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
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(a) if to the Borrower, to iXL Enterprises, Inc., 0000 Xxxxx
Xxxxxx, X.X., Xxxxxxx, XX 00000, Attention of Xxxxx Xxxxxxxx (Telecopy
No. 404-267-3801);
(b) if to the Administrative Agent, to The Chase Manhattan
Bank, Loan and Agency Services Group, One Chase Xxxxxxxxx Xxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxxx Xxxxxx (Telecopy
No. (000) 000-0000), with a copy to The Chase Manhattan Bank, 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx Xxxxxx (Telecopy
No. 212-270-4164);
(c) if to the Issuing Bank, to The Chase Manhattan Bank, 000
Xxxx Xxxxxx 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxxx
Xxxxxx (Telecopy No. 212-270-4164); and
(d) if to any other Lender, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and
other communications hereunder by notice to the other parties hereto. All
notices and other communications given to any party hereto in accordance with
the provisions of this Agreement shall be deemed to have been given on the date
of receipt.
SECTION 9.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent, the Issuing Bank or any Lender in exercising any
right or power hereunder or under any other Loan Document shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent, the
Issuing Bank and the Lenders hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent to
any departure by any Loan Party therefrom shall in any event be effective
unless the same shall be permitted by paragraph (b) of this Section, and then
such waiver or consent shall be effective only in the specific instance and for
the purpose for which given. Without limiting the generality of the foregoing,
the making of a Loan or issuance of a Letter of Credit shall not be construed
as a waiver of any Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default at
the time.
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(b) Neither this Agreement nor any other Loan Document nor
any provision hereof or thereof may be waived, amended or modified except, in
the case of this Agreement, pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or, in the case of any
other Loan Document, pursuant to an agreement or agreements in writing entered
into by the Administrative Agent and the Loan Party or Loan Parties that are
parties thereto, in each case with the consent of the Required Lenders;
provided that no such agreement shall (i) increase the Commitment of any Lender
without the written consent of such Lender, (ii) reduce the principal amount of
any Loan or LC Disbursement or reduce the rate of interest thereon, or reduce
any fees payable hereunder, without the written consent of each Lender affected
thereby, (iii) postpone the Revolving Maturity Date or the scheduled date of
payment of the principal amount of any LC Disbursement, or any interest
thereon, or any fees payable hereunder, or reduce the amount of, waive or
excuse any such payment, or postpone the scheduled date of expiration of any
Commitment, without the written consent of each Lender affected thereby, (iv)
change Section 2.16(b) or (c) in a manner that would alter the pro rata sharing
of payments required thereby, without the written consent of each Lender, (v)
change any of the provisions of this Section or the definition of the term
"Required Lenders" or any other provision of any Loan Document specifying the
number or percentage of Lenders (or Lenders of any Class) required to waive,
amend or modify any rights thereunder or make any determination or grant any
consent thereunder, without the written consent of each Lender (or each Lender
of such Class, as the case may be), (vi) release any Loan Party from its
Guarantee under the Guarantee Agreement (except as expressly provided in the
Guarantee Agreement), or limit its liability in respect of such Guarantee,
without the written consent of each Lender, or (vii) release all or
substantially all of the Collateral from the Liens of the Security Documents,
without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or the Issuing Bank without the prior written consent of
the Administrative Agent or the Issuing Bank, as the case may be.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower agrees to pay (i) all reasonable out-of-pocket expenses incurred by
the Administrative Agent, the Collateral Agent and their Affiliates, including
the reasonable fees, charges and disbursements of counsel for the
Administrative Agent and the Collateral Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of the Loan Documents or any amendments, modifications or
waivers of the provisions thereof (whether or
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not the transactions contemplated hereby or thereby shall be consummated), (ii)
all reasonable out-of-pocket expenses incurred by the Issuing Bank in
connection with the issuance, amendment, renewal or extension of any Letter of
Credit or any demand for payment thereunder and (iii) all out-of-pocket
expenses incurred by the Administrative Agent, the Collateral Agent, the
Issuing Bank or any Lender, including the fees, charges and disbursements of
any counsel for the Administrative Agent, the Collateral Agent, the Issuing
Bank or any Lender, in connection with the enforcement or protection of its
rights in connection with the Loan Documents, including its rights under this
Section, or in connection with the Loans made or Letters of Credit issued
hereunder, including all such out-of-pocket expenses incurred during any
workout, restructuring or negotiations in respect of such Loans or Letters of
Credit.
(b) The Borrower agrees to indemnify the Administrative
Agent, the Collateral Agent, the Issuing Bank and each Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties to
the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under
a Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
currently or formerly owned or operated by the Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to the Borrower
or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the
gross negligence or wilful misconduct of such Indemnitee.
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(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent or the Issuing Bank under
paragraph (a) or (b) of this Section, each Lender severally agrees to pay to
the Administrative Agent or the Issuing Bank, as the case may be, such Lender's
pro rata share (determined as of the time that the applicable unreimbursed
expense or indemnity payment is sought) of such unpaid amount; provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or
related expense, as the case may be, was incurred by or asserted against the
Administrative Agent or the Issuing Bank in its capacity as such. For purposes
hereof, a Lender's "pro rata share" shall be determined based upon its share of
the sum of the total Revolving Exposures and unused Commitments at the time.
(d) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to direct or actual damages) arising out of, in connection with, or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the Transactions, any Loan or Letter of Credit or the use of the
proceeds thereof.
(e) All amounts due under this Section shall be payable
promptly after written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of
this Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns permitted hereby (including
any Affiliate of the Issuing Bank that issues any Letter of Credit), except
that the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
the Issuing Bank that issues any Letter of Credit) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
the Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a
portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans at the time owing to it); provided that
(i) except in the
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case of an assignment to a Lender or an Affiliate of a Lender, each of the
Borrower and the Administrative Agent (and, in the case of an assignment of all
or a portion of a Revolving Commitment or any Lender's obligations in respect of
its LC Exposure, the Issuing Bank) must give their prior written consent to such
assignment (which consent shall not be unreasonably withheld), (ii) except in
the case of an assignment to a Lender or an Affiliate of a Lender or an
assignment of the entire remaining amount of the assigning Lender's Commitment
or Loans, the amount of the Commitment or Loans of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $2,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iii) shall not be
construed to prohibit the assignment of a proportionate part of all the
assigning Lender's rights and obligations in respect of one Class of Commitments
or Loans, (iv) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $3,500, and (v) the assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire; provided further that any consent of the Borrower otherwise
required under this paragraph shall not be required if an Event of Default under
clause (h) or (i) of Article VII has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender under this Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.12, 2.13, 2.14 and 9.03). Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices
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in The City of New York a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the
Lenders, and the Commitment of, and principal amount of the Loans and LC
Disbursements owing to, each Lender pursuant to the terms hereof from time to
time (the "Register"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, the Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary. The Register shall be available for inspection by any
of the Borrower, the Issuing Bank and any Lender, at any reasonable time and
from time to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and
Acceptance executed by an assigning Lender and an assignee, the assignee's
completed Administrative Questionnaire (unless the assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b) of this Section and any written consent to such assignment required by
paragraph (b) of this Section, the Administrative Agent shall accept such
Assignment and Acceptance and record the information contained therein in the
Register. No assignment shall be effective for purposes of this Agreement
unless it has been recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or the Issuing Bank, sell participations to one or more
banks or other entities (a "Participant") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (i) such Lender's
obligations under this Agreement shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent, the Issuing
Bank and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce the Loan Documents and to approve any amendment, modification or waiver
of any provision of the Loan Documents; provided that such agreement or
instrument may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver described in the
first proviso to Section 9.02(b) that affects such Participant. Subject to
paragraph (f) of this Section, the Borrower agrees that each Participant shall
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be entitled to the benefits of Sections 2.13, 2.14 and 2.15 to the same extent
as if it were a Lender and had acquired its interest by assignment pursuant to
paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 9.08 as though it were a
Lender; provided such Participant agrees to be subject to Section 2.16(c) as
though it were a Lender.
(f) A Participant shall not be entitled to receive any
greater payment under Section 2.13 or 2.15 than the applicable Lender would
have been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.15 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.15(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 9.05. Survival. All covenants, agreements,
representations and warranties made by the Loan Parties in the Loan Documents
and in the certificates or other instruments delivered in connection with or
pursuant to this Agreement or any other Loan Document shall be considered to
have been relied upon by the other parties hereto and shall survive the
execution and delivery of the Loan Documents and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.13, 2.14, 2.15 and 9.03 and Article VIII shall
survive and remain in full force and effect regardless of
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the consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement,
the other Loan Document and any separate letter agreements with respect to fees
payable to the Administrative Agent constitute the entire contract among the
parties relating to the subject matter hereof and supersede any and all
previous agreements and understandings, oral or written, relating to the
subject matter hereof. Except as provided in Section 4.01, this Agreement shall
become effective when it shall have been executed by the Administrative Agent
and when the Administrative Agent shall have received counterparts hereof that,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement
held to be invalid, illegal or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such invalidity, illegality
or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof; and the invalidity of a particular
provision in a particular jurisdiction shall not invalidate such provision in
any other jurisdiction.
SECTION 9.08. Right of Set-off. If an Event of Default shall
have occurred and be continuing, each Lender and each of its Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by law, to set-off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
obligations at any time owing by such Lender or Affiliate to or for the credit
or the account of the Borrower against any of and all the obligations of the
Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under
this Agreement and although such obligations may be unmatured. The rights of
each Lender under this Section are in addition to other
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rights and remedies (including other rights of set-off) that such Lender may
have.
SECTION 9.09. Governing Law; Jurisdiction; Consent to
Service of Process. (a) This Agreement shall be construed in accordance with
and governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to any Loan Document, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in such New York State or, to the extent permitted by law, in
such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right
that the Administrative Agent, the Issuing Bank or any Lender may otherwise
have to bring any action or proceeding relating to this Agreement or any other
Loan Document against the Borrower or its respective properties in the courts
of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any other
Loan Document in any court referred to in paragraph (b) of this Section. Each
of the parties hereto hereby irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 9.01. Nothing
in this Agreement or any other Loan Document will affect the right of any party
to this Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN ANY
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LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION.
SECTION 9.11. Headings. Article and Section headings and the
Table of Contents used herein are for convenience of reference only, are not
part of this Agreement and shall not affect the construction of, or be taken
into consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative
Agent, the Issuing Bank and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be disclosed
(a) to its and its Affiliates' directors, officers, employees and agents,
including accountants, legal counsel and other advisors (it being understood
that the Persons to whom such disclosure is made will be informed of the
confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant
in, any of its rights or obligations under this Agreement, (g) with the consent
of the Borrower or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis from a source other than the Borrower. For the purposes
of this Section, "Information" means all information received from the Borrower
relating to the Borrower or its business, other than any such information that
is available to the Administrative Agent, the Issuing Bank or any Lender on a
nonconfidential basis prior to disclosure by the Borrower; provided that, in
the case of information received from the Borrower after the Effective Date,
such information is clearly identified at the time of delivery as confidential.
Any Person
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required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts that are treated as
interest on such Loan under applicable law (collectively the "Charges"), shall
exceed the maximum lawful rate (the "Maximum Rate") that may be contracted for,
charged, taken, received or reserved by the Lender holding such Loan in
accordance with applicable law, the rate of interest payable in respect of such
Loan hereunder, together with all Charges payable in respect thereof, shall be
limited to the Maximum Rate and, to the extent lawful, the interest and Charges
that would have been payable in respect of such Loan but were not payable as a
result of the operation of this Section shall be cumulated and the interest and
Charges payable to such Lender in respect of other Loans or periods shall be
increased (but not above the Maximum Rate therefor) until such cumulated
amount, together with interest thereon at the Federal Funds Effective Rate to
the date of repayment, shall have been received by such Lender.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
iXL ENTERPRISES, INC.,
by /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx
Title: SVP Finance
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
by /s/ Xxxxx X. Xxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
FIRST HAWAIIAN BANK,
by /s/ Xxxxxx X. Xxxxx
-------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION,
by /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Duly Authorized Signatory
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ABN AMRO,
by /s/ Xxxxxx X. Xxxxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: GVP
/s/ Xxxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: AVP
