Exhibit 99.2
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CREDIT FACILITY AGREEMENT
BY AND AMONG
XXXXXXXXXXXXX.XXX, INC.
AND
EACH OF ITS DIRECT AND INDIRECT SUBSIDIARIES
AND
MCG FINANCE CORPORATION
(AS AGENT FOR ITSELF AND ANY OTHER LENDER)
Executed and Effective as of March 16, 2000
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TABLE OF CONTENTS
ARTICLE 1: THE CREDIT FACILITIES.........................................1
1.1. Term Loan Facility.............................................1
1.1.1. Establishment of Credit Facility.......................1
1.1.2. Facility Maturity......................................1
1.1.3. Use of Proceeds........................................2
1.1.4. Term Loan Notes........................................2
1.1.5. Interest...............................................2
1.1.5.1. Intentionally Blank............................2
1.1.5.2. Establishment of Portions......................3
1.1.5.3. Interest Rate Determination....................3
1.1.5.4. Selection of Rate Index........................3
1.1.5.5. Applicable Rate Margins........................3
1.1.5.6. Calculation of Interest........................4
1.1.5.7. Special LIBO Rate Provisions...................4
1.1.6. Repayment and Prepayment...............................5
1.1.6.1. Interest Payments..............................6
1.1.6.2. Principal Payments -- Amortization.............6
1.1.6.3. Intentionally Blank............................6
1.1.6.4. Payments at Maturity...........................6
1.1.6.5. Prepayments....................................6
1.1.6.6. Availability for Reborrowing...................7
1.2. Intentionally Blank............................................7
1.3. Determination of Commitment Amounts............................7
1.3.1. Initial Commitment.....................................7
1.3.2. Available Credit Portion...............................7
1.3.3. Voluntary Reduction of Commitment......................8
1.4. Advances.......................................................8
1.4.1. Requesting Advances....................................8
1.4.2. Funding Advances.......................................8
1.4.3. Indemnification for Revocation or Failure to Satisfy
Conditions....................................................9
1.4.4. Obligation to Advance..................................9
1.5. Payments in General............................................9
1.5.1. Xxxxxx and Place of Payments...........................9
1.5.2. Special Payment Timing Issues..........................9
1.5.3. Application of Payments................................9
1.5.4. LIBO Rate Payments Not at End of Interest Period......10
1.5.5. Capital Adequacy, Taxes and Other Adjustments.........10
1.5.6. Payment of Expenses, Indemnities and Protective
Advances..............................................10
1.5.7. Payments upon Termination.............................10
1.5.8. Late Payments.........................................10
1.5.9. Default Interest......................................11
1.5.10. Usury Savings Provision..............................11
1.6. Release of Security...........................................11
1.7. Fees and Other Compensation...................................11
1.7.1. Origination Fee.......................................11
1.7.2. Issuance of Warrants..................................12
1.7.3. Success Fee...........................................12
1.7.4. Other Fees............................................12
ARTICLE 2: CONDITIONS PRECEDENT.........................................13
2.1. Closing Conditions............................................13
2.1.1. Compliance............................................13
2.1.1.1. Fees and Expenses.............................13
2.1.1.2. Representations...............................13
2.1.1.3. No Default....................................13
2.1.1.4. No Material Change............................13
2.1.2. Documents.............................................13
2.1.3. Telecon Acquisition...................................16
2.2. Future Term Loan Advances.....................................17
2.2.1. Advance Request.......................................17
2.2.2. Cash Flow Leverage....................................17
2.2.3. Other Documents.......................................17
2.2.4. Additional Acquisitions...............................17
2.2.5. Compliance............................................17
2.2.5.1. Fees and Expenses.............................17
2.2.5.2. Representations...............................17
2.2.5.3. No Default....................................17
2.2.6. No Material Change....................................18
ARTICLE 3: REPRESENTATIONS AND WARRANTIES...............................18
3.1. Organization and Good Standing................................18
3.2. Power and Authority...........................................18
3.3. Validity and Legal Effect.....................................18
3.4. No Violation of Laws or Agreements............................18
3.5. Title to Assets; Existing Encumbrances; Identification of
Intellectual and Real Property.....................................18
3.6. Capital Structure and Equity Ownership........................19
3.7. Subsidiaries, Affiliates and Investments......................19
3.8. Material Contracts............................................19
3.9. Licenses and Authorizations...................................20
3.10. Taxes and Assessments........................................20
3.11. Litigation and Legal Proceedings.............................20
3.12. Accuracy of Financial Information............................21
3.13. Accuracy of Other Information................................21
3.14. Compliance with Laws Generally...............................21
3.15. ERISA Compliance.............................................21
3.16. Environmental Compliance.....................................21
3.17. Margin Rule Compliance.......................................21
3.18. Fees and Commissions.........................................21
3.19. Solvency.....................................................22
3.20. Additional FCC and Other Regulatory Representations..........22
3.20.1. General Compliance...................................22
3.20.2. No Unresolved Application, Complaint or Proceeding...22
3.20.3. Status and Renewal of Licenses.......................22
ARTICLE 4: AFFIRMATIVE COVENANTS........................................22
4.1. Financial and Operating Covenants and Ratios..................23
4.1.1. Interest Coverage Ratio...............................23
4.1.2. Total Charge Coverage Ratio...........................23
4.1.3. Cash Flow Leverage Ratio..............................23
4.2. Periodic Financial Statements and Compliance Certificates.....23
4.2.1. Monthly Financial Statements..........................23
4.2.2. Quarterly Financial Statements........................23
4.2.3. Annual Financial Statements...........................24
4.3. Other Financial and Specialized Reports.......................24
4.3.1. Financial Forecasts; Operating Budgets................24
4.3.2. Additional Material Contracts, Licenses and
Authorizations........................................24
4.3.3. Tax Returns...........................................24
4.3.4. SEC Filings and Press Releases........................25
4.3.5. Operating Reports.....................................25
4.4. Fiscal Year...................................................25
4.5. Books and Records; Maintenance of Properties..................26
4.6. Existence and Good Standing...................................26
4.7. Deposit Accounts..............................................26
4.8. Insurance; Disaster Contingency...............................26
4.8.1. General Insurance Provisions..........................26
4.8.2. Disaster Recovery and Contingency Program.............26
4.9. Loan Purpose..................................................27
4.10. Taxes........................................................27
4.11. Management Changes...........................................27
4.12. Litigation and Administrative Proceedings....................27
4.13. Monitoring Compliance; Occurrence of Certain Events..........27
4.14. Compliance with Laws.........................................27
4.15. Further Actions..............................................27
4.15.1. Additional Collateral................................28
4.15.2. Further Assurances...................................28
4.15.3. Estoppel Certificates................................28
4.15.4. Xxxxxxx and Consents.................................28
4.15.5. Access and Audits....................................28
4.15.6. Attendance at Board of Directors Meetings............29
4.16. Costs and Expenses...........................................29
4.17. Other Information............................................29
4.18. Additional FCC and Other Regulatory Affirmative Covenants....29
4.18.1. Service Interruption.................................29
4.18.2. Correspondence, Orders and Filings...................30
4.19. Billing System Integration...................................30
4.20. Post-Closing Items...........................................30
ARTICLE 5: NEGATIVE COVENANTS...........................................31
5.1. Capital Expenditures..........................................31
5.2. Additional Indebtedness.......................................31
5.3. Guaranties....................................................32
5.4. Loans.........................................................32
5.5. Liens and Encumbrances; Negative Pledge.......................32
5.6. Transfer of Assets............................................34
5.7. Acquisitions and Investments..................................34
5.8. New Ventures; Mergers.........................................35
5.9. Transactions with Affiliates..................................35
5.10. Distributions or Dividends...................................35
5.11. Payment of Subordinated Indebtedness.........................36
5.12. Payment of Management Fees and Other Compensation............36
5.13. Issuance of Additional Equity................................36
5.14. Removal of Assets............................................36
5.15. Modifications to Organic Documents...........................37
5.16. Terms of and Modifications to Material Relationships.........37
5.17. Margin Stock Restrictions; Other Federal Statutes............37
5.18. Holding Company Structure....................................37
ARTICLE 6: ADDITIONAL COLLATERAL AND RIGHT OF SET OFF...................37
6.1. Additional Collateral.........................................37
6.2. Right of Set-Off..............................................38
6.3. Additional Rights.............................................38
ARTICLE 7: DEFAULT AND REMEDIES.........................................38
7.1. Events of Default.............................................38
7.1.1. Payment Obligations...................................38
7.1.2. Representations and Warranties........................38
7.1.3. Financial Covenants...................................38
7.1.4. Other Covenants in Loan Documents.....................38
7.1.5. Default Under Other Agreements with Administrative
Agent or Lenders......................................39
7.1.6. Default Under Material Agreements with Other Parties..39
7.1.7. Security Interest.....................................39
7.1.8. Change of Control.....................................39
7.1.9. Government Action.....................................40
7.1.10. Insolvency...........................................40
7.1.11. Additional Liabilities...............................40
7.1.12. Business Interruption................................40
7.1.13. FCC and Other Regulatory-Action Defaults.............40
7.1.14. Material Adverse Change..............................41
7.2. Remedies......................................................41
7.2.1. Acceleration, Termination and Pursuit of Collateral...41
7.2.2. Other Remedies........................................41
7.2.3. Special Regulatory-Related Remedies...................41
ARTICLE 8: RELATIONSHIP AMONG LENDERS...................................43
8.1. Appointment, Authorization and Grant of Authority.............43
8.2. Acceptance of Appointment.....................................43
8.3. Administrative Agent's Relationship with Borrowers............43
8.4. Non-Reliance on Administrative Agent and Other Lenders........43
8.5. Reliance by Administrative Agent..............................44
8.6. Delegation of Duties; Additional Reliance by Administrative
Agent.........................................................44
8.7. Acting on Instructions of Lenders.............................45
8.8. Actions Upon Occurrence of Default or Event of Default........45
8.9. Administrative Agent's Rights as Lender in Individual
Capacity......................................................45
8.10. Advances By Administrative Agent.............................46
8.11. Payments to Lenders..........................................46
8.12. Pro-Rata Sharing of Setoff Proceeds..........................46
8.13. Limitation on Liability of Administrative Agent..............46
8.14. Indemnification..............................................47
8.15. Resignation; Successor Administrative Agent..................47
ARTICLE 9: DEFINITIONS AND RULES OF CONSTRUCTION........................48
9.1. Definitions...................................................48
9.2. Rules of Interpretation and Construction......................60
9.2.1. Plural; Gender........................................60
9.2.2. Section and Schedule References.......................60
9.2.3. Titles and Headings...................................61
9.2.4........................................................61
9.2.5."Shall", "Will", "Must", "Can" and "May" References....61
9.2.6. Time of Day References................................61
9.2.7........................................................61
9.2.8. Successors and Assigns................................61
9.2.9. Modifications to Documents............................61
9.2.10. References to Laws and Regulations...................62
9.2.11. Financial and Accounting Terms.......................62
9.2.12. Conflicts Among Loan Documents.......................62
9.2.13. Independence of Covenants and Defaults...............62
9.2.14. Administrative Agent.................................62
ARTICLE 10: MISCELLANEOUS...............................................63
10.1. Indemnification, Reliance and Assumption of Risk.............63
10.2. Assignments and Participations...............................63
10.3. No Waiver; Delay.............................................64
10.4. Modifications and Amendments.................................64
10.5. Disclosure of Information to Third Parties...................65
10.6. Binding Effect and Governing Law.............................66
10.7. Notices......................................................66
10.8. Relationship with Prior Agreements...........................67
10.9. Severability.................................................68
10.10. Termination and Survival....................................68
10.11. Reinstatement...............................................68
10.12. Counterparts................................................68
10.13. Waiver of Suretyship Defenses...............................68
10.14. WAIVER OF LIABILITY.........................................69
10.15. FORUM SELECTION; CONSENT TO JURISDICTION....................69
10.16. WAIVER OF JURY TRIAL........................................70
SCHEDULES:
Schedule A List of Borrowers
Schedule 1.1.3 Indebtedness Being Satisfied
Schedule 1.4.2 Funding Instructions
Schedule 3.1 Good Standing / Foreign Qualification Jurisdictions
Schedule 3.2 Missing Consents
Schedule 3.5A Intellectual Property
Schedule 3.5B Real Property Interests
Schedule 3.5C Operating Names / Trade Names
Schedule 3.6 Capital Structure / Equity Ownership
Schedule 3.7 Subsidiaries, Affiliates & Investments
Schedule 3.8 Material Contracts
Schedule 3.9 Licenses and Authorizations
Schedule 3.10 Taxes and Assessments
Schedule 3.11 Material Litigation
Schedule 3.18 Fees and Commissions
Schedule 3.20 Pending Regulatory Matters
Schedule 4.7 Existing Deposit Accounts
Schedule 5.2 Permitted Additional Indebtedness
Schedule 5.3 Permitted Additional Guaranties
Schedule 5.4 Permitted Additional Loans
Schedule 5.5 Permitted Additional Liens
Schedule 5.7 Permitted Additional Investments
EXHIBITS:
Exhibit 1.4.1 Form of Advance Request
Exhibit 4.2 Form of Periodic Compliance Certificate
Exhibit 10.2 Form of Assignment and Assumption Agreement
CREDIT FACILITY AGREEMENT
THIS CREDIT FACILITY AGREEMENT (as defined in Article 9, along with
all other defined terms, this "Agreement") is made and effective as of
March 16, 2000, by and among XXXXXXXXXXXXX.XXX, INC. ("BiznessOnline") and
EACH DIRECT AND INDIRECT SUBSIDIARY OF BIZNESSONLINE (WHICH EITHER ARE
LISTED ON SCHEDULE A WITH THE CONSENT OF LENDERS OR ARE HEREAFTER ADDED AS
BORROWING SUBSIDIARIES PURSUANT TO THE TERMS HEREOF) (as more fully defined
in Article 9, BiznessOnline and each such Subsidiary are referred to
individually as a "Borrower" and collectively as the "Borrowers"), and EACH
FINANCIAL INSTITUTION THAT FROM TIME TO TIME IS A "LENDER" HEREUNDER (as
more fully defined in Article 9, each, a "Lender"; collectively, the
"Lenders"), and MCG FINANCE CORPORATION (as more fully defined in Article
9, "MCG" or "Administrative Agent").
R E C I T A L S
WHEREAS, Borrowers desire and have applied to Lenders and
Administrative Agent for a credit facility consisting of a term loan
pursuant to which $15.0 million can be borrowed from time to time on a
senior secured basis; and
WHEREAS, Xxxxxxx and Administrative Agent are each willing to
accommodate the request for credit upon and subject to the terms,
conditions and provisions of the Loan Documents;
NOW, THEREFORE, for good and valuable consideration (receipt and
sufficiency of which are hereby acknowledged), and intending to be legally
bound hereby, Borrowers (jointly and severally) and each Lender and
Administrative Agent hereby agree as follows:
ARTICLE 1: THE CREDIT FACILITIES
1.1. Term Loan Facility.
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1.1.1. Establishment of Credit Facility. Subject to the terms and
conditions of and in reliance upon the representations and warranties in
the Loan Documents, each Lender (severally and on a Pro Rata basis with the
other Lenders) will lend funds to Borrowers on a senior secured basis
through Advances from time to time prior to September 16, 2000 (the "Final
Term Draw Date") in an aggregate principal amount advanced not to exceed
the Available Credit Portion (as determined in accordance with Section 1.3.
1.1.2. Facility Maturity. The Term Loan Facility will mature on
February 28, 2001 (as may be extended from time to time in Lenders' sole
and absolute discretion, "Term Loan Maturity Date"). Notwithstanding the
foregoing, Borrowers (at their election) shall have the option (upon
delivery of written notice to Administrative Agent at any time prior to the
then effective Term Loan Maturity Date) of (a) extending such Term Loan
Maturity Date for additional successive periods of 364 calendar days from
the date of such notice but in no event beyond February 28, 2005 and/or (b)
extending the then effective Term Loan Maturity Date until February 28,
2005 upon delivery to Administrative Agent of evidence satisfactory to
Administrative Agent that Borrowers have obtained all necessary final
regulatory approvals for the incurrence of indebtedness having a term with
such a maturity date.
1.1.3. Use of Proceeds. The funds advanced under this Term Loan
Facility may be used exclusively as follows:
a. Up to $100,000 to satisfy and refinance the indebtedness
owed by Borrowers to the various Persons set forth on Schedule 1.1.3 (which
Schedule shall identify each payee, the corresponding amounts being
satisfied, and the purpose for which such indebtedness being satisfied was
initially incurred), and
b. Up to $5,000,000 to fund acquisitions that have been
approved by Required Lenders (in their sole and reasonable discretion), and
c. Up to $10,000,000 to fund the Telecon Acquisition, and
d. The balance of the Term Loan Commitment (if any) to pay
(i) for fees and expenses associated with consummating and documenting the
transactions contemplated by this Agreement, and (ii) to fund the costs
associated with the development of additional Internet data centers and
integration of acquired networks and services such as salaries, promotional
expenses, advertising expenses and professional fees, and (iii) for such
other purposes as specifically authorized hereunder or in writing by
Required Lenders (in their sole and absolute discretion).
1.1.4. Term Loan Notes. The indebtedness under the Term Loan
Facility and the corresponding (joint and several) obligation of Borrowers
to repay each Lender with interest in accordance with the terms hereof will
be evidenced by one or more Term Loan Notes (as amended, restated,
replaced, supplemented, extended or renewed from time to time, each, a
"Term Loan Note"; collectively, the "Term Loan Notes") payable to the order
of each Lender. The Term Loan Notes will be due and payable in full on the
Term Loan Maturity Date. The aggregate stated principal amount of the Term
Loan Notes will be the Term Loan Commitment established as of the Closing
Date pursuant to Section 1.3; provided, however, that the maximum liability
under such Term Loan Notes will be limited at all times to the actual
amount of indebtedness (including principal, interest, fees, expenses and
indemnities) then outstanding under the Term Loan Facility. Each Lender is
authorized to note or endorse the date and amount of each Advance and each
payment under the Term Loan Facility on a schedule annexed to and
constituting a part of the Term Loan Notes. Such notations or endorsements,
if made, will constitute prima facie evidence of the information noted or
endorsed on such schedule, but the absence of any such notation or
endorsement will not limit or otherwise affect the obligations or
liabilities of Borrowers thereunder and hereunder.
1.1.5. Interest. Interest under the Term Loan Facility (and with
respect to any other amounts advanced to or on behalf of Borrowers or
otherwise outstanding under the Loan Documents) will be determined and
imposed in accordance with the following provisions (and, as applicable,
Sections 1.5 and 1.7):
1.1.5.1. Intentionally Blank.
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1.1.5.2. Establishment of Portions. For purposes of
determining interest, Borrowers may designate and subdivide the outstanding
balance under the Term Loan Facility (including any other amounts advanced
to or on behalf of Borrowers under the Loan Documents) into a maximum of
two (2) Portions accruing interest at an Adjusted LIBO Rate and one (1)
Portion accruing interest at the Prime Rate. No Portion accruing interest
at an Adjusted LIBO Rate may be less than $100,000, and all Portions under
the Term Loan Facility collectively must total the outstanding balance
under the Term Loan Facility.
1.1.5.3. Interest Rate Determination. The outstanding
principal balance under each Portion will bear interest (computed daily
until paid in immediately available funds, whether prior to or after the
Term Loan Maturity Date) at the applicable Rate Index (as determined in
accordance with Section 1.1.5.4) plus the applicable Rate Margin (as
determined in accordance with Section 1.1.5.5). If the Prime Rate is the
applicable Rate Index for a Portion, then the interest rate on such Portion
will change when and as the Prime Rate or Rate Margin changes; and if an
Adjusted LIBO Rate is the applicable Rate Index for a Portion, then the
interest rate on such Portion will be established on the first day of each
Interest Period for such Portion and will not change during such Interest
Period (except as otherwise permitted under Section 1.1.5). Notwithstanding
the foregoing, the applicable interest rate for the outstanding balance
under the Term Loan Facility from the Closing Date until the first date on
which the Rate Index or Rate Margin may be changed will be 13.91% per annum
(i.e., the Adjusted LIBO Rate applicable for a 3-month period as of the
Closing Date plus a Rate Margin of 7.75% per annum).
1.1.5.4. Selection of Rate Index. The applicable Rate Index
for each Portion will be either the Prime Rate or an Adjusted LIBO Rate.
The applicable Rate Index for each Portion may be changed by Borrowers as
of the first calendar day after the end of the applicable Interest Period
for such Portion. At least 3 Business Days (but not more than 10 Business
Days) before any day on which the Rate Index may be changed, Borrowers must
notify Administrative Agent in writing of (a) the dollar amount of each
Portion (if more than one exists) and (b) the selected Rate Index for each
Portion during the subsequent rate period (including, if applicable, the
selected length of the Interest Period for balances accruing interest at an
Adjusted LIBO Rate). If Administrative Agent does not timely receive such
written notification as to any Portion, then the then-current Rate Index
will be the applicable Rate Index for the outstanding balance of such
unspecified Portion during the subsequent Interest Period. With respect to
the proceeds of each Advance under the Term Loan Facility, unless Borrowers
request a particular Rate Index at the time of such Advance, then
Administrative Agent may select the applicable Rate Index from the
corresponding Settlement Date for such Advance until the next date on which
the Rate Index may be changed hereunder.
1.1.5.5. Applicable Rate Margins. The Rate Margin applicable
to the Term Loan Facility will be established as of the Closing Date and as
of the first calendar day of each Interest Period after the date that
Administrative Agent and Lenders receive or should have received the most
recent periodic financial statements of Xxxxxxxxx delivered in accordance
with Section 4.2. The Rate Margin will be based upon the Leverage Ratio of
(a) Funded Debt as of the date of establishment of such Rate Margin to (b)
OCF as of the last day of the fiscal quarter reflected on the most recent
quarterly financial statements delivered to Administrative Agent and
Lenders in accordance with Section 4.2, and will be determined according to
the following schedule:
Prime Rate Adjusted LIBO
Leverage Ratio Margin Rate Margin
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<3 3.25% 4.75%
>3.0 but <4.0 3.75% 5.25%
-
>4.0 but <5.0 4.25% 5.75%
-
>5.0 but <6.0 5.00% 6.50%
-
>6.0 6.25% 7.75%
-
If Administrative Agent and Lenders do not timely receive acceptable
quarterly financial statements prepared and delivered in accordance with
Section 4.2, then Administrative Agent (in its sole and absolute
discretion) may deem the applicable Rate Margin for each Portion to be the
highest Rate Margin for the applicable Rate Index reflected in the chart
above, either prospectively or retroactive to the first calendar day of the
then-current fiscal quarter and continuing at such rate until
Administrative Agent and Lenders have received acceptable quarterly
financial statements prepared and delivered in accordance with Section 4.2.
Upon the funding of any Advance after the Closing Date in excess of
$250,000, then Administrative Agent (in its sole and absolute discretion)
may elect to prospectively adjust the Rate Margin applicable to each
Portion to reflect the additional amount of Funded Debt thereby
outstanding. Even though the pricing schedule above may contemplate Rate
Margins for Leverage Ratios in excess of the Leverage Ratios from time to
time permitted under Section 4.1: (1) the existence of such pricing in the
above schedule (or the effectiveness thereof) does not amend any of the
requirements under Section 4.1 or waive any Default or Event of Default
caused by any non-compliance therewith from time to time and (2)
Administrative Agent and Lenders may nevertheless exercise from time to
time during the occurrence of an Event of Default any and all rights and
remedies that are permitted by any Loan Document or applicable law.
1.1.5.6. Calculation of Interest. Interest under the Term
Loan Facility will be calculated, accrued, imposed and payable on the basis
of a 360-day year for the actual number of days elapsed. Interest will
begin to accrue on any amounts advanced to or on behalf of Borrowers under
the Loan Documents on and as of the date such funds are advanced. Unless
prohibited by applicable law, interest will be compounded on a monthly
basis and added to the outstanding principal balance.
1.1.5.7. Special LIBO Rate Provisions. The following
provisions apply with respect to Adjusted LIBO Rates (notwithstanding any
other provision hereof).
a. Change in Adjusted LIBO Rate. Any Adjusted LIBO Rate
may be prospectively adjusted by a particular Lender from time to time to
account for any additional or increased cost of maintaining any necessary
reserves for Eurodollar deposits (including any increase in the Reserve
Percentage) or any increased costs due to changes in the applicable law
occurring subsequent to the commencement of the then-applicable Interest
Period. Such Lender will give Administrative Agent notice of any such
determination and adjustment within a reasonable period of time thereafter.
Upon receipt of such notice, Administrative Agent will provide a copy
thereof to Borrowers, and (upon written request) such Lender will furnish a
statement to Administrative Agent and Borrowers setting forth the basis and
the method for determining the amount of such adjustment. A determination
by any Lender hereunder will be conclusive absent manifest error. If any
Lender provides any such notice of adjustment, then Borrowers may elect to
change the then-applicable Rate Index (using the same Rate Margin category)
to the Prime Rate for any Portion then subject to an Adjusted LIBO Rate.
Such election to change the Rate Index must be made by providing
Administrative Agent written notice thereof at any time within 10 Business
Days after receipt of such notice of adjustment (notwithstanding any
restriction hereunder limiting Rate Index changes to certain dates, but
subject to the requirement to pay all associated costs therewith). Upon
Administrative Agent's receipt of any such written election, the identified
Portion will thereupon begin to accrue interest at the Prime Rate plus the
Rate Margin (as applicable for the same Leverage Ratio as previously was
applicable for the Adjusted LIBO Rate) for the remainder of the
then-current Interest Period for such Portion.
b. Unavailability of Eurodollar Funds. An Adjusted LIBO
Rate will not be available for the Term Loan Facility if a particular
Lender at any time determines or reasonably believes that (1) Eurodollar
deposits equal to the amount of principal under the Term Loan Facility for
the applicable Interest Period are unavailable, or (2) an Adjusted LIBO
Rate will not adequately and fairly reflect the cost of maintaining
balances under the Term Loan Facility, or (3) by reason of circumstances
affecting Eurodollar markets, adequate and reasonable means do not then
exist for ascertaining an Adjusted LIBO Rate. Such Lender will give
Administrative Agent notice of any such determination and adjustment within
a reasonable period of time thereafter. Upon receipt of such notice,
Administrative Agent will provide a copy thereof to Borrowers, and (upon
written request) such Xxxxxx will furnish to Administrative Agent and
Borrowers a statement setting forth the basis for such determination or
reasonable belief. A determination or belief by any Lender hereunder will
be conclusive absent manifest error.
c. Illegality. An Adjusted LIBO Rate also will not be
available under the Term Loan Facility if a particular Lender at any time
determines or reasonably believes that it is unlawful or impossible to fund
or maintain sufficient Eurodollar liabilities for the Term Loan Facility
under an Adjusted LIBO Rate. Such Lender will give Administrative Agent
notice of any such determination and adjustment within a reasonable period
of time thereafter. Upon receipt of such notice, Administrative Agent will
provide a copy thereof to Borrowers, and (upon written request) such Xxxxxx
will furnish to Administrative Agent and Borrowers a statement setting
forth the basis for such determination or reasonable belief. A
determination or belief by any Lender hereunder will be conclusive absent
manifest error.
d. Continuance of a Default. An Adjusted LIBO Rate,
unless Required Lenders otherwise consent, also will not be available under
the Term Loan Facility during the existence of any Default or Event of
Default under the Loan Documents.
e. Alternative Rate. During the occurrence of any event
described in either Clauses "b," "c" or "d" of this Subsection, each
Lender's obligation hereunder to fund or maintain balances under an
Adjusted LIBO Rate will be suspended, and during such period, the
outstanding balance under the Term Loan Facility will bear interest at the
Prime Rate plus the appropriate Rate Margin (determined in accordance with
Section 1.1.5.5).
1.1.6. Repayment and Prepayment. Each Borrower (jointly and
severally) hereby promises to pay Administrative Agent the aggregate
indebtedness under the Term Loan Facility (and other Loan Documents) in
accordance with the following provisions (and, as applicable, Sections 1.3,
1.5 and 1.7):
1.1.6.1. Interest Payments. Interest accrued under the Term
Loan Facility is due and payable monthly in arrears on the last calendar
day of each month and also, at the option of Administrative Agent, on the
last calendar day of each Interest Period for any Portion accruing interest
at an Adjusted LIBO Rate. Such payments shall commence on the first such
date after the Closing Date. Upon prior written notice of at least 30
calendar days from Administrative Agent to Borrowers, Administrative Agent
may change the date during a month on which such payments are due and
payable.
1.1.6.2. Principal Payments -- Amortization. Subject to the
earlier occurrence of the Term Loan Maturity Date pursuant to Section
1.1.2, on the last calendar day of each May, August, November and February,
beginning with May 31, 2001, a payment of principal equal to the applicable
percentage set forth below of the principal balance under the Term Loan
Facility after accounting for all Advances is due and payable in its
entirety. Upon prior written notice of at least 30 calendar days from
Administrative Agent to Borrowers, Administrative Agent may change the date
during a quarter on which such payments are due and payable.
Date Percentage
---- ----------
May 31, 2001 through
May 30, 2002 3.75% each
May 31, 2002 through
May 30, 2003 6.25% each
May 31, 2003 through
May 30, 2005 7.50% each
1.1.6.3. Intentionally Blank.
-------------------
1.1.6.4. Payments at Maturity. The outstanding indebtedness
under the Term Loan Facility (including all principal, interest, fees,
expenses and indemnities) is due and payable in its entirety on the Term
Loan Maturity Date.
1.1.6.5. Prepayments.
-----------
a. Voluntary Prepayments. At any time, upon prior
written notice to Administrative Agent of at least five (5) Business Days,
the outstanding principal balance under the Term Loan Facility may be
prepaid in whole or in part without premium or penalty, except as provided
in Section 1.1.6 or Section 1.5. Any voluntary partial prepayment must be
in an amount of not less than $100,000 or in an integral multiple thereof.
b. Mandatory Prepayments -- Excessive Balance. If the
outstanding indebtedness under the Term Loan Facility at any time exceeds
the Available Credit Portion as determined in accordance with Section 1.3,
then such excess amount outstanding must be re-paid to Administrative Agent
in its entirety immediately upon the earlier of (1) awareness by Borrowers
of the advance or incurrence thereof or (2) demand by Administrative Agent
for payment thereof.
c. Mandatory Prepayments -- Equity Issuances and Asset
Sales. If any Borrower issues any equity securities (other than equity
securities to another Borrower and/or in connection with an acquisition
that is otherwise permitted hereunder) the proceeds of which are less than
$5,000,000 or greater than $30,000,000, or if Borrowers collectively sell,
lease, license, transfer or otherwise dispose of any assets (other than
inventory or other assets either sold in the ordinary course of business
with the proceeds thereof promptly reinvested in similar assets at similar
locations or sold to another Borrower) exceeding an aggregate fair market
value of $1,000,000 in any 12 consecutive calendar months, then a
prepayment must be immediately made on the outstanding indebtedness under
the Term Loan Facility, unless Required Lenders otherwise consent. The
amount of any such mandatory prepayment will be the higher of the cash
proceeds or the cash equivalent of the fair market value of any such equity
issuance or asset dispositions net of (1) reasonable commissions and
expenses actually paid to unrelated third parties in connection with such
transactions and (2) taxes actually due as a direct result of such
transactions (as such taxes are estimated and certified to Administrative
Agent by an acceptable certified public accountant or Borrowers' chief
financial officer).
d. Mandatory Prepayment - Telecon Acquisition. If the
proceeds of the initial Advance placed in the Escrow Account have not been
released on or prior to April 30, 2000, then on May 1, 2000 such funds
shall be returned to Lenders and shall constitute a prepayment on the
outstanding indebtedness under the Term Loan Facility, unless Required
Lenders otherwise consent.
e. In General. Any prepayments under the Term Loan
Facility must include all accrued but unpaid interest under the Term Loan
Facility allocable to the amount prepaid through the date of such
prepayment.
1.1.6.6. Availability for Reborrowing. Principal amounts
repaid or prepaid under the Term Loan Facility prior to the Term Loan
Maturity Date will not be available for reborrowing hereunder.
1.2. Intentionally Blank.
-------------------
1.3. Determination of Commitment Amounts.
-----------------------------------
1.3.1. Initial Commitment. Upon the execution of this Agreement
and satisfaction of the conditions precedent set forth in Section 2.1, the
Term Loan Commitment established hereunder will be $15.0 million ("Term
Loan Commitment").
1.3.2. Available Credit Portion. The maximum amount of credit
available at any time under the Term Loan Facility may not exceed the
amount resulting from the following formula:
a. The Term Loan Commitment, and
b. Minus the aggregate amount of Advances previously made to
Xxxxxxxxx, and
c. Minus such portion of the Term Loan Commitment as is
reserved for future acquisitions under Section 1.1.3 (until such time as
such acquisitions occur), and
d. Minus the then-aggregate amount of all prepayments
relating to equity issuances and asset sales required to have been paid
since the Closing Date under Section 1.1.6.5.c, and
e. Minus the aggregate amount of all voluntary commitment
reductions requested under Section 1.3.3.
(Collectively, the amount resulting from the equation under categories "a"
through "e" above is referred to as the "Available Credit Portion".) On the
effective date of any such reduction in the Available Credit Portion, a
prepayment must be made to the extent required under Section 1.1.6.5.b.
1.3.3. Voluntary Reduction of Commitment. Upon giving
Administrative Agent prior written notice of at least five (5) Business
Days, Borrowers at any time and from time to time may reduce the Term Loan
Commitment in multiples of $100,000. On the effective date of any such
reduction, a prepayment must be made to the extent required under Section
1.1.6.5.b. Any such reduction in the Term Loan Commitment will be
permanent, and such Commitment cannot thereafter be increased without the
written consent of Lenders.
1.4. Advances.
--------
1.4.1. Requesting Advances. To request an Advance (other than the
initial Advances on the Closing Date) under the Term Loan Facility,
Borrowers must give Administrative Agent written notice (or verbal notice
by telephone with immediate written confirmation to follow) at least three
(3) Business Days (but not more than ten (10) Business Days) prior to the
requested Settlement Date for such Advance (such notice, an "Advance
Request"). Such Advance Request, together with certain certifications, must
be substantially in the form of Exhibit 1.4.1 or such other form as
Administrative Agent may reasonably request. Each Advance under the Term
Loan Facility pursuant to an Advance Request (unless Administrative Agent
otherwise consents) must be in an amount of at least $100,000 and may not
be greater than the un-borrowed balance of the Available Credit Portion.
Unless Administrative Agent otherwise consents, Borrowers may only request
up to three (3) Advances after the Closing Date.
1.4.2. Funding Advances. Subject to the satisfaction of and
compliance with the terms and conditions hereof (including, as applicable,
the conditions precedent specified in Article 2), Administrative Agent will
make each Lender's Pro Rata portion of each requested Advance (to the
extent such funds are received by Administrative Agent) available by
crediting such amount to the Account with Administrative Agent (or by such
other means as Administrative Agent may consider reasonable). At the
written request and expense of Borrowers, Administrative Agent will wire
transfer all or any portion of an Advance in accordance with such written
instructions therefor. By executing this Agreement, each Borrower (jointly
and severally) hereby requests Administrative Agent and each Lender to make
and fund the initial Advances (to the extent that Administrative Agent
receives each Lender's Pro Rata portion of the initial Advances) in
accordance with the funding instructions attached as Schedule 1.4.2
(including placing $10,000,000 in the Escrow Account). MCG acknowledges
that it is the only Lender as of the Closing Date.
1.4.3. Indemnification for Revocation or Failure to Satisfy
Conditions. Each Borrower (jointly and severally) will indemnify each
Lender and Administrative Agent against all losses and costs incurred by
such Lender and Administrative Agent as a result of any revocation of any
requested Advance or any failure to fulfill the applicable conditions
precedent to such Advance on or before the requested Settlement Date
specified in an Advance Request. Such indemnification will include (among
other things) all losses and costs incurred by reason of the liquidation or
reemployment of funds required by such Lender or Administrative Agent to
fund the Advance when such Advance, as a result of such failure, is not
made on the requested Settlement Date. Such Lender's or Administrative
Agent's (as applicable) calculation of such losses and costs will be
conclusive absent manifest error.
1.4.4. Obligation to Advance. No Lender will be obligated to make
any Advance under the following circumstances: (a) if the principal amount
of such Advance plus the aggregate amount outstanding under the Term Loan
Facility would exceed the Available Credit Portion, or (b) during the
existence of a Default or an Event of Default hereunder, or (c) if such
Advance would cause a Default or Event of Default hereunder, or (d) after
the Final Term Draw Date.
1.5. Payments in General.
-------------------
1.5.1. Manner and Place of Payments. All payments of principal,
interest, fees, expenses, indemnities and other amounts due under the Loan
Documents must be received by Administrative Agent by wire transfer (unless
Administrative Agent otherwise consents) in immediately available funds in
U.S. dollars (and without any deduction, offset, netting, reservation of
rights or counterclaim) on or before Two O'clock (2:00) p.m. Eastern Time
("ET") on the due date therefor at the principal office of Administrative
Agent set forth in Notice Section hereof or at such other place as
Administrative Agent may designate from time to time.
1.5.2. Special Payment Timing Issues. Whenever any payment to be
made under any Loan Document is due on a day that is not a Business Day,
then such payment may be made on the next succeeding Business Day, and such
extension of time will be included in the computation of interest under
such Loan Document. Any funds received by Administrative Agent after 2:00
p.m. ET on any day will be deemed to be received on the next succeeding
Business Day.
1.5.3. Application of Payments. All payments and other funds
received by Administrative Agent under the Loan Documents will be applied
in the following order: (a) first to the payment of any fees and charges
due under the Loan Documents, and (b) then to any obligations for the
payment of expenses, costs and indemnities due under the Loan Documents,
and (c) then to the payment of interest due and owing under the Loan
Documents, and (d) then to the principal indebtedness due under the Term
Loan Facility, and (e) then to principal outstanding (but not yet due)
under the Term Loan Facility, and (f) then to any other interest accrued
under the Loan Documents, and (g) then to any other indebtedness of any
Borrower or other Obligor to any Lender. Notwithstanding the foregoing,
payments allocable to principal (other than scheduled periodic payments)
will be applied to reduce future scheduled payments in the inverse order of
maturity.
1.5.4. LIBO Rate Payments Not at End of Interest Period. Upon
payment of any amount accruing interest based upon an Adjusted LIBO Rate on
any day other than the last day of the corresponding Interest Period
(whether such payment is voluntary, mandatory, by demand, acceleration or
otherwise), then Borrowers must pay Administrative Agent the greater of (a)
$500 or (b) all costs and losses (including funding costs and any losses
associated with the re-deployment of such funds for the balance of such
Interest Period) that may arise or be incurred as a result of or in
connection with such payment (as such costs and losses may be calculated by
Xxxxxxx). Upon written request, Xxxxxxx (through Administrative Agent) will
furnish a statement setting forth the basis for such calculation. A
determination or calculation by any Lender hereunder will be conclusive
absent manifest error.
1.5.5. Capital Adequacy, Taxes and Other Adjustments. If any
Lender determines that (a) the adoption, implementation or interpretation
after the Closing Date of any law, treaty, governmental (or
quasi-governmental) rule, regulation, guideline, directive, policy or order
regarding capital adequacy, reserve requirements, taxes or similar
requirements, or (b) compliance by such Lender or any entity controlling or
funding the operations of such Lender with any request or directive
regarding capital adequacy, reserve requirements, taxes or similar
requirements (whether or not having the force of law and whether or not
failure to comply therewith would be unlawful) from any central bank,
governmental agency, controlling entity, funding source or body having
jurisdiction would, in either instance, have the effect of increasing the
amount of capital, reserves, taxes (other than income taxes of
Administrative Agent or any Lender), funding costs or other funds required
to be maintained or paid by such Lender and thereby reducing the rate of
return on such Lender's capital as a consequence of its obligations under
the Loan Documents, then Borrowers must pay to such Lender additional
amounts sufficient to compensate such Lender for such reduction. Such
Lender will give Administrative Agent notice of any such determination and
payment amount within a reasonable period of time thereafter. Upon receipt
of such notice, Administrative Agent will provide a copy thereof to
Borrowers, and (upon written request) such Xxxxxx will furnish a statement
to Administrative Agent and Borrowers setting forth the basis and the
method for determining the amount of such payment. A determination by any
Lender hereunder will be conclusive absent manifest error.
1.5.6. Payment of Expenses, Indemnities and Protective Advances.
If any funds are advanced or costs are incurred by Administrative Agent or
any Lender to or on behalf of Borrowers or otherwise as permitted under the
Loan Documents (including as protective advances), other than Advances
pursuant to Section 1.4, then such advances or costs must be re-paid to
Administrative Agent in their entirety immediately upon the earlier of (a)
awareness by Borrowers of the advance or incurrence thereof or (b) demand
by Administrative Agent for payment thereof.
1.5.7. Payments upon Termination. Notwithstanding any other
provision hereof, the entire outstanding indebtedness under each Facility
(including all principal, interest, fees, expenses and indemnities) is due
and payable in its entirety upon any termination of such Facility, the
corresponding Commitment therefor, or this Agreement.
1.5.8. Late Payments. If any payment (of principal, interest,
fees, expenses, indemnities or other amounts) due under any Loan Document
is not received by Administrative Agent in immediately available funds on
or before the 7th calendar day after the due date therefor, then each
Borrower (jointly and severally) hereby agrees (to the maximum extent not
prohibited by applicable law) to pay to Lenders (through Administrative
Agent and upon Administrative Agent's request) a late payment charge equal
to 5% of the amount of such late payment. Additional and separate late
payment charges (to the maximum extent not prohibited by applicable law)
may be subsequently imposed hereunder by Administrative Agent from time to
time (a) if any late payment or late payment charge is not received by
Administrative Agent in immediately available funds on or before the 30th
calendar day after any demand therefor, and (b) if any other payment due
under any Loan Document is not received by Administrative Agent in
immediately available funds on or before the 7th calendar day after the due
date therefor. The late payment charges due under this Section are in
addition to any other interest, fees, charges, expenses or indemnities due
under the Loan Documents.
1.5.9. Default Interest. During the existence of a Default or an
Event of Default hereunder, each Borrower (jointly and severally) hereby
agrees (to the maximum extent not prohibited by applicable law) to pay to
Lenders (through Administrative Agent and upon Administrative Agent's
request but commencing on the date of occurrence of such Default or Event
of Default) interest on any indebtedness outstanding hereunder at the rate
of THREE PERCENT (3%) per annum in excess of the rate then otherwise
applicable to such indebtedness. Notwithstanding the foregoing, if the
relevant Default is under Section 7.1.10, then such rate increase (to the
maximum extent not prohibited by applicable law) will occur automatically
without any request by Administrative Agent.
1.5.10. Usury Savings Provision. Notwithstanding any provision of
any Loan Document, Borrowers (individually and collectively) are not and
will not be required to pay interest at a rate or any fee or charge in an
amount prohibited by applicable law. If interest or any fee or charge
payable on any date would be in a prohibited amount, then such interest,
fee or charge will be automatically reduced to the maximum amount that is
not prohibited, and any interest, fee or charge for subsequent periods (to
the extent not prohibited by applicable law) will be increased accordingly
until Administrative Agent and each Lender receives payment of the full
amount of each such reduction. To the extent that any prohibited amount is
actually received by Administrative Agent or any Lender, then such amount
will be automatically deemed to constitute a repayment of principal
indebtedness hereunder.
1.6. Release of Security. Upon termination of the Loan Documents in
accordance with Section 10.10, then Administrative Agent (at the written
request and expense of Borrowers) (i) will release the Obligors and the
property serving as Collateral under the Loan Documents (without
representation, warranty, recourse, liability or indemnification of any
kind by or to Administrative Agent or any Lender), and (ii) will execute
and deliver such UCC termination statements, mortgage releases, deed of
trust releases, and other documentation and instruments (all in form and
substance reasonably acceptable to Administrative Agent) as may be
reasonably requested and provided to Administrative Agent to effect such
releases and terminations, and (iii) will terminate and cancel all
Commitments and all Facilities under the Loan Documents.
1.7. Fees and Other Compensation.
---------------------------
1.7.1. Origination Fee.
---------------
1.7.1.1. On the Closing Date, Borrowers will pay
Administrative Agent an Origination Fee in the amount of $300,000, which
amount is treated as prepaid non-refundable interest.
1.7.1.2. If (a) the Advance made on the Closing Date is
greater than $10 million, or (b) after the Closing Date, Lenders make an
Advance(s) the proceeds of which are not used to fund one or more
acquisitions that have been approved by Required Lenders (other than either
the Telecon Acquisition or the Additional Acquisitions), then, as an
additional Origination Fee, BiznessOnline will issue to Lenders entitled
thereto (or their designated Affiliates) such number of shares of the
common stock of BiznessOnline resulting from the following formula:
$500,000 divided by the "Block A Exercise Price" (as defined in the Warrant
Agreement) applicable on the Settlement Date for such Advance. provided,
however, in no event shall the actual number of shares to be issued under
this subsection (if any) be equal to or greater than 20% of the outstanding
shares of BiznessOnline immediately prior to such issuance, or such lesser
percentage that is adopted by the Nasdaq from time to time which would give
rise to a shareholder approval requirement for this financing transaction
or such issuance of shares under Nasdaq marketplace rules and regulations
in force from time to time (the "Nasdaq Limit"). If the number of shares to
be issued under this Section 1.7.1.2 exceeds the Nasdaq Limit then
BiznessOnline shall pay to Lenders entitled thereto (or their designated
Affiliates) cash equal to the fair market value of the shares in excess of
the Nasdaq Limit in lieu of issuing such shares that exceed the Nasdaq
Limit.
1.7.2. Issuance of Warrants. As additional compensation for the
cost and risk incurred associated with underwriting and establishing the
Term Loan Facility including but not limited to funding the initial Advance
(but in no way affecting or relieving any Borrower of any of its
obligations to fully and timely perform and to repay the entire
indebtedness due under the Loan Documents), BiznessOnline will issue and
grant to Lenders entitled thereto (or their designated Affiliates) warrants
exercisable into shares of common stock of BiznessOnline sufficient to
represent approximately 7.5% of its issued and outstanding shares of common
stock as of the Closing Date, on a fully diluted basis pursuant to the
Warrant Agreement ("Warrants"). The Warrants will be fully earned by such
Lenders (or their Affiliates) as of the Closing Date. The Warrants (and all
of Lenders' rights in connection therewith) are freely assignable and
transferable at any time and from time to time by any Lender entitled
thereto (or any of its Affiliates or assignees) to any other Person,
provided that such Lender complies with any applicable restrictions thereon
(and obtains any necessary approvals in connection therewith) required by
any applicable State PUC (but only to the extent non-compliance therewith
could reasonably be expected to have or cause a Material Adverse Effect),
the FCC, the SEC or the Warrant Agreement itself.
1.7.3. Success Fee. If on or before April 1, 2001, the Borrowers
prepay the Term Loan Facility such that the remaining principal balance of
the Term Loan Facility after application of such prepayment is $3,000,000
or less, then Borrowers shall also pay to Lenders a Success Fee in the
amount of $400,000 on the date of such prepayment.
1.7.4. Other Fees. Other fees and charges may be imposed by
Administrative Agent or any Lender for services rendered under and in
accordance with other agreements with Administrative Agent or such Lender.
ARTICLE 2: CONDITIONS PRECEDENT
2.1. Closing Conditions. The obligation of Administrative Agent or any
Lender to execute and perform the Loan Documents, and to establish the Term
Loan Facility, and to fund the Advances listed on Schedule 1.4.2 are
subject to the following conditions precedent (unless and except to the
extent expressly waived by Administrative Agent and each Lender in their
sole and absolute discretion):
2.1.1. Compliance.
----------
2.1.1.1. Fees and Expenses. Borrowers must have paid (or
made acceptable arrangements with Administrative Agent to pay or authorize
Administrative Agent to deduct from the Term Loan proceeds) all fees and
expenses due and payable hereunder, including all fees due and payable
under Section 1.7 and the reasonable fees and expenses of Administrative
Agent's and each Xxxxxx's attorneys and in-house documentation personnel
with respect to the preparation, negotiation and execution of the Loan
Documents.
2.1.1.2. Representations. Each, and all, representations and
warranties contained in this Agreement (including those in Article 3) and
in each other Loan Document, certificate or other writing delivered to
Administrative Agent or any Lender pursuant hereto or thereto on or prior
to the Closing Date must be true, correct and complete in all material
respects on and as of the Closing Date, except for such deviations
disclosed in writing and acceptable to Administrative Agent and each
Lender.
2.1.1.3. No Default. There must not be any Default or Event
of Default hereunder or any default under any other Loan Document on the
Closing Date, and there must not be any such Default or Event of Default
occurring as a result of executing or advancing funds under the Loan
Documents, except for such defaults disclosed in writing and acceptable to
Administrative Agent and each Lender.
2.1.1.4. No Material Change. There must not have been (in
Administrative Agent's or Lenders' reasonable opinion) any Material Adverse
Change between the date for the most recent financial statements delivered
to Administrative Agent and the Closing Date.
2.1.2. Documents. Administrative Agent must have received the
following documents, agreements and certificates (together with all
exhibits and schedules thereto), each duly executed, in form, substance and
amount satisfactory to Administrative Agent and, when applicable, recorded
or filed in the appropriate public office:
2.1.2.1. Credit Agreement. This Agreement.
2.1.2.2. Promissory Notes. The Term Loan Notes as described
in Section 1.1.4.
2.1.2.3. Security Agreement, Collateral Assignment and
Pledge. A master security agreement, collateral assignment and pledge by
EACH BORROWER in favor of Administrative Agent granting Administrative
Agent a security interest in and collaterally assigning to Administrative
Agent all of such grantor's tangible and intangible personal property
assets (including fixtures), whether now owned or hereafter acquired, and
the proceeds and products thereof, as collateral security for the
indebtedness and obligations hereunder, together with all necessary
financing statements and termination statements (each as filed), stock
certificates and powers executed in blank, waivers and consents, and
evidence of any other recordations required by applicable law or by
Administrative Agent to perfect such security interests in a manner that
will be subject only to Permitted Liens.
2.1.2.4. Intellectual Property Security Agreements. One or
more separate intellectual property security agreements by EACH BORROWER in
favor of Administrative Agent encumbering all of such grantor's copyrights,
patents, trade names, trademarks, service names, service marks and other
intellectual property (including any and all applications and licenses
therefor), all as now owned or hereafter acquired, and the proceeds and
goodwill thereof, together with all appropriate financing statements and
termination statements (each as filed), waivers and consents, and any other
documents or recordations required by applicable law or by Administrative
Agent to perfect such interests.
2.1.2.5. Estoppel and Consent Agreements. One or more
estoppel and consent agreements in favor of Administrative Agent by each
party to any real property lease with any Borrower and/or any other
Material Contract with any Borrower consenting to the encumbrance of such
property and/or the collateral assignment of the rights with respect
thereto in favor of Administrative Agent and granting to Administrative
Agent certain other rights pursuant thereto.
2.1.2.6. Warrants. One or more separate warrant agreements
by BiznessOnline issuing and granting to each Lender entitled thereto (or
its designated Affiliate) the Warrants, together with all underlying
warrant certificates and evidence of necessary actions by BiznessOnline to
authorize and issue such warrants and related warrant shares.
2.1.2.7. Escrow Agreement. An escrow agreement among
Borrowers to Escrow Agent and Administrative Agent pursuant to which
$10,000,000 is placed in escrow pending closing on the Telecon Acquisition
and satisfaction of the conditions to release of such $10,000,000.
2.1.2.8. Insurance. Current proof of insurance with an
indication of loss payee and additional insured endorsements in favor of
Administrative Agent with respect to all of the coverages required under
Section 4.8. Such proof of insurance must be indicated pursuant to one or
more certificates on (a) an XXXXX 27 form (3/93) for property-related
insurance coverages and (b) a modified version of an XXXXX 25-S form
(3/93), in each instance permitting reliance by Administrative Agent and
requiring cancellation notification.
2.1.2.9. Compliance Certificates. A certificate from an
Authorized Officer of each Borrower dated as of the Closing Date certifying
as to compliance with the matters described under Section 2.1.1.
2.1.2.10. Opinions of Counsel. One or more written opinions
from legal counsel to Xxxxxxxxx addressed to Administrative Agent and each
Xxxxxx and Administrative Agent's counsel and dated as of the Closing Date
opining as to such matters as Administrative Agent may request.
2.1.2.11. Payoff Instructions for Prior Indebtedness. A
letter from Borrowers to Administrative Agent, consistent with the
requirements of Section 1.1.3, Section 1.4 and Section 2.1.1, instructing
Administrative Agent how to disburse the proceeds of the initial Advance,
together with payoff and release letters from each Person receiving any
such proceeds.
2.1.2.12. Authorization Documents. A certificate of an
Authorized Officer of each Borrower and each other non-natural person
executing any Loan Document delivering true, accurate and complete versions
of (a) its Articles of Incorporation, Articles of Organization or
Certificate of Partnership (as applicable) and all amendments thereto, and
(b) its Bylaws, Operating Agreements or Partnership Agreements (as
applicable) and all amendments thereto, and (c) the resolutions authorizing
its execution, delivery and full performance of the Loan Documents and all
other documents, certificates and actions required hereunder or in
connection herewith, and (d) an incumbency certificate setting forth its
officers (together with the corresponding signatures), and (e) a long-form
good standing and qualification certificate (issued within 15 calendar days
before the Closing Date) with respect to each jurisdiction listed on
Schedule 3.1, and (f) a copy of each License (or renewal thereof) issued to
it by the FCC (and/or, if applicable, any State PUC).
2.1.2.13. Officer's Certificates. One or more certificates
of an Authorized Officer of each Borrower delivering true, accurate and
complete copies of the following documents (together with all amendments,
exhibits and schedules thereto):
a. Lien Searches -- Searches (conducted within
15 calendar days before the Closing Date)
satisfactory to Administrative Agent with
respect to consensual liens, tax liens,
judgments and bankruptcy, listing
respectively (1) all effective UCC financing
statements that name any Borrower (including
any predecessor thereto and any operating or
tradenames thereof) as "debtor" that are
filed in the States of New York, Connecticut,
New Jersey, Massachusetts or any other U.S.
jurisdiction in which such debtor currently
operates or has had assets at any time within
the immediately preceding 12 calendar months
(together with copies of such financing
statements), and (2) all tax liens against
any Obligor (or the assets thereof), and (3)
all outstanding judgments against any Obligor
(or the assets thereof), and (4) whether any
Obligor has filed bankruptcy within the
preceding 5 years.
b. Financial Statements -- A set of the monthly
financial statements of Borrowers for the
month ending January 31, 2000.
c. Equityholder Agreements -- Each shareholder
agreement, member agreement, partner
agreement, voting agreement, buy-sell
agreement, option, warrant, put, call, right
of first refusal, and any other agreement or
instrument with conversion rights into equity
of any Borrower either (1) between any
Borrower and any holder or prospective holder
of any equity interest of any Borrower
(including interests convertible into such
equity) or (2) otherwise between any two or
more such holders of equity interests.
d. Employment and Non-Compete Agreements -- Each
employment agreement, consulting agreement
and non-compete agreement to which
BiznessOnline is a party.
e. Inter-Affiliate Agreements -- Each written
agreement between any Borrower and any
Affiliate of any Borrower.
f. Disaster Recovery and Contingency Program --
A description of the currently effective
disaster recovery and contingency program of
each Borrower, as required to be delivered
under Section 4.8.
g. Leases as Lessee -- Each lease between any
Borrower and any owner or landlord of real or
personal property used in connection with
such Borrower's business either (1) for which
it has an annual rent obligation in excess of
$36,000 or (2) for a switch site or call
center or for a location at which a Borrower
has application hosting servers, routing
equipment or other critical systems.
h. Leases as Lessor -- Each lease between any
Borrower and any lessee of real or personal
property owned or leased by any Borrower, but
only to the extent the lessee thereunder has
an annual rent obligation in excess of
$36,000.
i. Other Agreement -- Such other agreements and
documents as Lender may reasonably request,
including a complete set of the executed
asset purchase agreements and/or merger
agreements governing the Additional
Acquisitions.
2.1.2.14. Other Documents. Administrative Agent must have
received any additional agreements, documents and certificates as
Administrative Agent or its counsel may reasonably request.
2.1.3. Telecon Acquisition. All conditions precedent to closing
the Telecon Acquisition other than final approval for such acquisition from
the New York Public Service Commission (and such other conditions as have
been disclosed and are acceptable to Required Lenders) shall have been
satisfied or waived under terms and conditions reasonably acceptable to
Required Lenders. In addition, the due diligence program conducted by
Borrowers in connection with such acquisition separately must be reasonably
acceptable to Required Lenders in form, content and results.
2.2. Future Term Loan Advances. The obligation of Administrative Agent
and each Lender to fund any request for an Advance under the Term Loan
Facility is subject to the following conditions precedent (unless and
except to the extent expressly waived by Administrative Agent in its sole
and absolute discretion, but with the concurrence of the Required Lenders):
2.2.1. Advance Request. Administrative Agent must have received
an Advance Request under and in accordance with Section 1.4.1.
2.2.2. Cash Flow Leverage. As of the Settlement Date for such
Advance (and in addition to any other requirements and covenants
hereunder), Borrowers must be in compliance with the Pro Forma Leverage
Ratio requirement under Section 4.1 using an amount for Funded Debt that is
as of such Settlement Date and inclusive of the proposed Advance, provided
that the $10,000,000 held in the Escrow Account shall be excluded from such
calculation while it is held in the Escrow Account.
2.2.3. Other Documents. Administrative Agent must have received
any additional documents, certificates and opinions as Administrative Agent
or its counsel may reasonably request, including UCC-1 financing
statements, fixture filings and leasehold mortgages regarding new locations
for other assets of any Borrower.
2.2.4. Additional Acquisitions. Borrowers must have already
consummated or must simultaneously consummate and complete the Additional
Acquisitions under terms and conditions reasonably acceptable to Required
Lenders. In addition, the due diligence program conducted by Borrowers in
connection with such acquisitions separately must be reasonably acceptable
to Required Lenders in form, content and results.
2.2.5. Compliance.
----------
2.2.5.1. Fees and Expenses. Borrowers must have paid (or
made acceptable arrangements with Administrative Agent to pay) all fees and
expenses due and payable hereunder, including all reasonable expenses
incurred in connection with or as a result of reviewing and funding such
Advance Request.
2.2.5.2. Representations. Each, and all, representations and
warranties contained in the Loan Documents (including those in Article 3)
and in each other certificate or other writing delivered to Administrative
Agent pursuant hereto or thereto on or prior to the Settlement Date must be
true, correct and complete in all material respects on and as of the
Settlement Date, except for such deviations disclosed in writing and
acceptable to Administrative Agent and each Lender (which disclosure will
not constitute Lenders' waiver or acceptance thereof).
2.2.5.3. No Default. There must not be any Default or Event
of Default hereunder or any default under any other Loan Document on the
Settlement Date, and there must not be any such Default or Event of Default
occurring as a result of funding such Advance, except for such defaults
disclosed in writing and acceptable to Administrative Agent and each Lender
(which disclosure will not constitute Lenders' waiver or acceptance
thereof).
2.2.6. No Material Change. There must not have been (in
Administrative Agent's or Lenders' reasonable opinion) any Material Adverse
Change between the Closing Date and the Settlement Date.
ARTICLE 3: REPRESENTATIONS AND WARRANTIES
Each Borrower, as of the Closing Date and the Settlement Date for each
Advance hereunder, hereby (jointly and severally) represents and warrants
as follows:
3.1. Organization and Good Standing. Each Borrower (a) is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and (b) has all requisite power and authority
(corporate, partnership, LLC and otherwise) to own its properties and to
conduct its business as now conducted and as currently proposed to be
conducted, and (c) is duly qualified to conduct business as a foreign
organization and is currently in good standing in each state and
jurisdiction in which it conducts business, except where failure to be duly
qualified and in good standing could not have a Material Adverse Effect.
Each state and jurisdiction in which any Borrower is organized or is (or
should be) qualified to conduct business under applicable law is listed on
Schedule 3.1.
3.2. Power and Authority. Each Borrower has all requisite power and
authority under applicable law and under its Organic Documents,
Authorizations and Licenses to execute, deliver and perform the obligations
under the Loan Documents to which it is a party. Except as disclosed on
Schedule 3.2, all actions, waivers and consents (corporate, regulatory and
otherwise) necessary or appropriate for any Borrower to execute, deliver
and perform the Loan Documents to which it is a party have been taken
and/or received.
3.3. Validity and Legal Effect. This Agreement constitutes, and the
other Loan Documents to which any Borrower is a party constitute (or will
constitute when executed and delivered), the legal, valid and binding
obligations of each Borrower (jointly and severally) enforceable against it
in accordance with the terms thereof.
3.4. No Violation of Laws or Agreements. The execution, delivery and
performance of the Loan Documents (a) will not violate or contravene any
material provision of any material law, rule, regulation, administrative
order or judicial decree (federal, state or local), and (b) will not
violate or contravene any provision of the Organic Documents of any
Borrower, and (c) will not result in any material breach or violation of
(or constitute a material default under) any material agreement or
instrument by which any Borrower or any of its property may be bound, and
(d) will not result in or require the creation of any Lien (other than
pursuant to the Loan Documents) upon or with respect to any properties of
any Borrower, whether such properties are now owned or hereafter acquired.
3.5. Title to Assets; Existing Encumbrances; Identification of
Intellectual and Real Property.
---------------------------------------------------------
3.5.1. Each Borrower has good and marketable title to all of its
owned real and personal property assets and the right to possess and use
all of its leased or licensed real and personal property assets. All such
property interests are free and clear of any Liens, except for Permitted
Liens (as defined in Section 5.5). Each such property and asset owned,
leased or licensed by any Borrower is titled, leased or licensed in the
current legal name of such Borrower.
3.5.2. Intellectual Property -- Schedule 3.5A lists each
trademark, service mark, copyright, patent, database, customized
application software and systems integration software, trade secret and
other intellectual property owned, licensed, leased, controlled or applied
for by any Borrower, whether or not such intellectual property is recorded
with the Copyright Office or the Patent and Trademark Office, together with
relevant identifying information with respect to such intellectual property
describing (among other things) the date of creation, the method of
protection against adverse claims and the registration number.
3.5.3. Real Property -- Schedule 3.5B lists each real property
interest owned, leased or otherwise used by any Borrower, together with
relevant identifying information describing (among other things) the use of
each such real property interest, the location and mailing address for each
such real property, a legal description for each such real property, an
indication of whether such interest is owned or leased (and, if leased, the
lessor and record owner thereof), and the estimated appraised value
thereof. Each such property and asset is in good order and repair (ordinary
wear and tear excepted) and is covered by the insurance required under
Section 4.8.
3.5.4. Schedule 3.5C identifies each legal, operating and trade
name that any Borrower has used (or permitted the filing of a UCC financing
statement under) at any time during the twelve (12) consecutive calendar
years immediately preceding the Closing Date.
3.6. Capital Structure and Equity Ownership. Schedule 3.6 accurately
and completely discloses (a) the number of shares and classes of equity
ownership rights and interests of each Borrower authorized and/or
outstanding (whether existing as common or preferred stock, general or
limited partnership interests, or LLC membership interests, or warrants,
options or other instruments convertible into such equity), and (b) the
ownership thereof (except BiznessOnline which is publicly traded) and the
price per share or interest paid therefor, and (c) the existence of
preferential returns or liquidation rights with respect to any such class
of equity, and (d) the existence of any enhanced voting rights, veto rights
or director designation rights with respect to any such class of equity,
and with respect to options, warrants and convertible instruments, the
price, duration and conversion factor thereof. All such shares and
interests are validly existing, fully paid and non-assessable.
3.7. Subsidiaries, Affiliates and Investments. Schedule 3.7 accurately
and completely discloses (a) each Subsidiary and Affiliate of each Borrower
(other than its officers and directors) and (b) each investment in or loan
to any other Person by any Borrower in excess of $25,000.
3.8. Material Contracts. Schedule 3.8 (a) accurately and completely
discloses each Material Contract (as defined below) of each Borrower, and
(b) also indicates the following information with respect to each such
contract: (1) the contract parties thereunder, and (2) the contract term
and any options or renewals thereto, and (3) the monthly payment required
thereunder, and (4) any restrictions on assignments, and (5) any
restrictions on disclosure of the terms thereof, and (6) the existence of
any breaches or defaults thereunder. No Borrower has committed any unwaived
breach or default under any Material Contract (whether or not listed on
Schedule 3.8), and after due inquiry and investigation, no Borrower has any
knowledge or reason to believe that any other party to any such Material
Contract (whether or not listed on Schedule 3.8) has or might have
committed any unwaived breach or default thereof. For purposes of this
Section 3.8, a "Material Contract" of a Borrower includes the following
types of agreements to which a Borrower is a party: (1) any contract either
with annual compensation, consideration or payments in excess of $250,000
or with aggregate compensation, consideration or payments in excess of
$500,000, and (2) any lease of real estate or office space from which a
Borrower conducts its primary business operations or from which a Borrower
conducts retail operations, and (3) any lease of real estate or space at
which a Borrower has application hosting servers, routing equipment, or
other systems (including backups) critical to the operation of such
Borrower's business, and (4) any contract, agreement or lease under the
terms of which a Borrower obtains the right to own, use or operate a switch
Internet connectivity equipment or telecommunications equipment for
consideration or payments in excess of $250,000 (including, without
limitation, the master lease agreement with Cisco Systems), and (5) leased
line agreements with Quest, Frontier and UUNet, and (6) any carrier
agreement which has a term longer than one year and has annual
consideration or payments in excess of $25,000, and (7) any interconnection
agreement which has a term longer than one year, and (8) any software
development agreements for consideration or payments in excess of $100,000,
and (9) any contract relating to any Borrower's billing or provisioning
system, and (10) any other agreement or contract the loss or breach of
which could reasonably be expected to have or cause a Material Adverse
Effect.
3.9. Licenses and Authorizations. Each Borrower possesses all Licenses
and other Authorizations necessary or required in the conduct of its
businesses and/or the operation of its properties. Each material
Authorization is valid, binding and enforceable on, against and by such
Borrower. Each material Authorization is subsisting without any defaults
thereunder or enforceable adverse limitations thereon, and no Authorization
is subject to any proceedings or claims opposing the issuance, continuance,
renewal, development or use thereof or contesting the validity or seeking
the revocation thereof. Schedule 3.9 accurately and completely lists each
material Authorization of each Borrower (including, whether or not
otherwise "material", each License and other Authorization issued by the
FCC or any State PUC, and further including all pending applications and
renewals therefor), together with relevant identifying information
describing such Authorizations. With respect to each License issued by the
FCC or any State PUC listed on Schedule 3.9, the description includes (to
the extent applicable) the call sign, frequency, class, location, file
number, issuance date (original or most recent renewal), and expiration
date. For purposes of this Section 3.9, each Authorization issued by the
FCC or any State PUC will be deemed to be "material".
3.10. Taxes and Assessments. Except as disclosed on Schedule 3.10,
each Borrower has timely filed all required tax returns and reports
(federal, state and local) or has properly and timely filed for extensions
of the time for the filing thereof. No Borrower has knowledge of any
deficiency, penalty or additional assessment due or appropriate in
connection with any such taxes. All taxes (federal, state and local)
imposed upon any Borrower or any of its properties, operations or income
have been paid and discharged prior to the date when any interest or
penalty would accrue for the nonpayment thereof, except for those taxes
being contested in good faith by appropriate proceedings diligently
prosecuted and with adequate reserves reflected on the financial statements
in accordance with GAAP (all as also disclosed on Schedule 3.10).
3.11. Litigation and Legal Proceedings. Except as disclosed on
Schedule 3.11, there is no litigation, claim, investigation, administrative
proceeding, labor controversy or similar action that is pending or (to the
best of each Borrower's knowledge and information after due inquiry)
threatened against any Borrower or its properties that, if adversely
resolved, could reasonably be expected to have or cause a Material Adverse
Effect.
3.12. Accuracy of Financial Information. All financial statements
previously furnished to Administrative Agent or any Lender concerning the
financial condition and operations of any one or more Borrowers (a) have
been prepared in accordance with GAAP consistently applied, and (b) fairly
present the financial condition of the organization covered thereby as of
the dates and for the periods covered thereby (but, with respect to interim
periodic financial statements, subject to normal and customary year end
audit adjustments), and (c) disclose all material liabilities (contingent
and otherwise) of each Borrower. In addition, all written information
previously furnished to Administrative Agent or any Lender concerning the
financial condition and operations of any Borrower are true, accurate and
complete in all material respects.
3.13. Accuracy of Other Information. All written information contained
in any application, schedule, report, certificate, or any other document
furnished to Administrative Agent or any Lender by any Borrower or any
other Person (on behalf of any Borrower) in connection with the Loan
Documents is in all material respects true, accurate and complete, and no
such Person (including Borrowers) has omitted to state therein (or failed
to include in any such document) any material fact or any fact necessary to
make such information not misleading. All written projections furnished to
Administrative Agent or any Lender by any Borrower or any other Person on
behalf of any Borrower have been prepared with a reasonable basis and in
good faith, making use of such information as was available at the date
such projection was made.
3.14. Compliance with Laws Generally. Each Borrower is in compliance
in all material respects with all material laws, rules, regulations,
administrative orders and judicial decrees (federal, state, local and
otherwise) applicable to it, its operations and its properties.
3.15. ERISA Compliance. Each Borrower is in compliance in all material
respects with all applicable provisions of ERISA.
3.16. Environmental Compliance. Each Borrower has received all permits
and filed all notifications necessary under and is otherwise in compliance
in all material respects with the Environmental Control Statutes.
3.17. Margin Rule Compliance. No Borrower owns or has any present
intention of acquiring any "Margin Stock" within the meaning of the
following Margin Regulations of the FRB: Regulation T at 12 C.F.R. Pt. 220,
and Regulation U at 12 C.F.R. Pt. 221, and Regulation X at 12 C.F.R. Pt.
224. The credit extended under this Agreement does not constitute "Purpose
Credit" within the meaning of the FRB's Margin Regulations.
3.18. Fees and Commissions. Except as disclosed on Schedule 3.18 or as
required by Section 1.7, no Borrower owes any fees or commissions of any
kind in connection with this Agreement or the transactions contemplated
hereby, and no Borrower knows of any claim (or any basis for any claim) for
any fees or commissions in connection with this Agreement or the
transactions contemplated hereby.
3.19. Solvency. No Borrower is "insolvent," as such term is defined in
Section 101(32) of the Bankruptcy Code (11 U.S.C. ss. 101(32)). No
Borrower, by virtue of its obligations and actions in connection with the
Loan Documents, has engaged or is engaging in any transaction that
constitutes a fraudulent transfer or fraudulent conveyance under applicable
federal or state law (including under Section 548 of the Bankruptcy Code or
under the Uniform Fraudulent Transfer Act or the Uniform Fraudulent
Conveyance Act).
3.20. Additional FCC and Other Regulatory Representations. Without
limiting the generality of the foregoing representations and warranties,
each Borrower further represents and warrants as follows:
3.20.1. General Compliance. Each Borrower is in compliance in all
material respects with all material laws, rules, regulations,
administrative orders, policies and procedures issued, implemented or
administered by the FCC and/or any State PUC applicable to such Borrower,
its operations and its properties.
3.20.2. No Unresolved Application, Complaint or Proceeding.
Except as described on Schedule 3.20, there is no outstanding or unresolved
(a) application by any Borrower for any FCC or State PUC Authorization
(including any renewal of any License), or (b) material complaint to the
FCC or any State PUC regarding any Borrower or any of its Authorizations,
or (c) litigation, investigation or other inquiry by or before the FCC or
any State PUC involving any Borrower or any of its Authorizations, or (d)
FCC or State PUC enforcement proceeding against any Borrower or any of its
Authorizations (including any notice of violation, any notice of apparent
liability for forfeiture, or any forfeiture).
3.20.3. Status and Renewal of Licenses. The Licenses identified
on Schedule 3.9 constitute all of the Licenses currently required by the
Federal Communications Act or any State Communications Act for the
operation of each Borrower's business as it is currently being operated.
Each such License is validly outstanding and effective and has been renewed
by the FCC or a State PUC without condition for a full term in accordance
with the Federal Communications Act or a State Communications Act. There
are no modifications, amendments or revocations (pending or, to the best of
the knowledge of each Borrower after due inquiry, threatened) that could
adversely affect the operations or financial condition of any Borrower.
After due inquiry, no Borrower knows of any reason why the FCC or any State
PUC would not routinely grant (for a full term and without condition) the
application by such Borrower for the renewal of each such License over
which the FCC or such State PUC has jurisdiction, when and as such
application shall become due to be filed with the FCC or such State PUC.
ARTICLE 4: AFFIRMATIVE COVENANTS
Each Borrower (jointly and severally) hereby covenants and agrees
that, so long as any indebtedness remains outstanding hereunder, each
Borrower will comply with the following affirmative covenants:
4.1. Financial and Operating Covenants and Ratios. As of the end of
each fiscal quarter, beginning with the fiscal quarter ending September 30,
2000, Borrowers will satisfy each of the following financial and operating
ratios and characteristics, each of which will be determined (as
applicable) using GAAP consistently applied, except as otherwise expressly
provided:
4.1.1. Interest Coverage Ratio. A ratio of Pro Forma OCF to
Interest Expense of not less than the following:
a. 1.5-to-1.0, from September 30, 2000 through December 31,
2000; and
b. 2.0-to-1.0, after December 31, 2000.
4.1.2. Total Charge Coverage Ratio. A ratio of Pro Forma OCF to
Total Charges of not less than 1.1-to-1.0.
4.1.3. Cash Flow Leverage Ratio. A ratio of Funded Debt to Pro
Forma OCF of not more than the following:
a. 5.0-to-1.0, from July 1, 2000 through December 31, 2000;
and
b. 4.0-to-1.0, from January 1, 2001 through June 30, 2001;
and
c. 3.0-to-1.0, from July 1, 2001 through December 31, 2001;
and
d. 2.0-to-1.0, after January 1, 2002.
4.2. Periodic Financial Statements and Compliance Certificates.
---------------------------------------------------------
4.2.1. Monthly Financial Statements. Within 30 calendar days
after the end of each calendar month (including the last calendar month of
each year), Borrowers must prepare and deliver to Lender a complete set of
unaudited internal monthly financial statements, in form and substance as
required by and acceptable to Administrative Agent. Together with the
monthly financial statements, Administrative Agent and each Lender must
also receive a certificate executed by the chief financial officer or such
other senior executive officer of each Borrower as is acceptable to
Administrative Agent (a) stating that the financial statements fairly
present the financial condition of each Borrower as of the date thereof and
for the periods covered thereby and (b) calculating, as of the end of such
monthly period, the then current amount for the Available Credit Portion,
and (c) certifying that as of the date of such certificate there is not any
existing Default or Event of Default.
4.2.2. Quarterly Financial Statements. Within thirty (30)
calendar days after the end of each fiscal quarter (including the fourth
fiscal quarter of each year), Borrowers must prepare and deliver to
Administrative Agent and each Lender unaudited quarterly financial
statements, in form and substance as required by and acceptable to
Administrative Agent. Such financial statements must include a balance
sheet and an income statement (with appropriate notes and schedules). Such
financial statements must be prepared in accordance with GAAP consistently
applied (except as approved by Administrative Agent in its sole and
absolute discretion). Together with the quarterly financial statements,
Administrative Agent and each Lender must also receive a certificate
executed by the chief financial officer or such other senior executive
officer of each Borrower as is acceptable to Administrative Agent (a)
stating that the financial statements fairly present the financial
condition of each Borrower as of the date thereof and for the periods
covered thereby, and (b) calculating, as of the end of such quarterly
period, the then-current amount for the Available Credit Portion, and (c)
providing a reconciled calculation demonstrating compliance with each
financial covenant and ratio under Section 4.1 (using the form attached as
Exhibit 4.2), and (d) certifying that as of the date of such certificate
there is not any existing Default or Event of Default.
4.2.3. Annual Financial Statements. Within one hundred twenty
(120) calendar days after the close of each fiscal year, Xxxxxxxxx must
prepare and deliver to Administrative Agent and each Lender a complete set
of audited annual consolidated financial statements (with accompanying
notes and consolidating schedules). Such financial statements (a) must
include the types of financial statements and information required on a
quarterly basis under this Section 4.2 as well as a cash flow statement and
a reconciliation of consolidated net worth, and (b) must be prepared in
accordance with GAAP consistently applied, and (c) must be certified
without qualification by an independent certified public accounting firm
satisfactory to Administrative Agent. Together with the annual financial
statements, Administrative Agent and each Lender must also receive all
related management letters prepared by such accountants and a certificate
signed by such accountants, (a) stating that the financial statements
fairly present the consolidated financial condition of each Borrower as of
the date thereof and for the periods covered thereby, and (b) providing a
reconciled calculation demonstrating compliance with each financial
covenant and ratio under Section 4.1, and (c) calculating, as of the end of
such fiscal year, the then-current amount for the Available Credit Portion,
and (d) certifying that as of the date of such certificate, to the best of
such accountant's knowledge (after due inquiry), there is not any existing
Default or Event of Default.
4.3. Other Financial and Specialized Reports.
---------------------------------------
4.3.1. Financial Forecasts; Operating Budgets. Within 10 Business
Days after receiving, preparing, materially revising or otherwise
assembling any periodic budgets or financial forecasts, Borrowers must
deliver a complete copy thereof to Administrative Agent and each Lender,
provided, however, that such recipients agree to abide by the
confidentiality/non-use provisions of Section 10.5 for purposes of
complying with federal securities laws and restrictions on the use of
non-public information. In addition, Xxxxxxxxx must prepare and deliver to
Administrative Agent and each Lender a final annual operating budget (in
form and substance satisfactory to Administrative Agent) at least 30
calendar days prior to the beginning of each fiscal year.
4.3.2. Additional Material Contracts, Licenses and
Authorizations. Each Borrower (a) will notify Administrative Agent in
writing within 90 calendar days after executing or becoming bound by any
contract, agreement, License or other Authorization that should have been
listed on Schedule 3.5A, Schedule 3.8 or Schedule 3.9 if it had existed as
of the Closing Date, and (b) will concurrently update Schedule 3.5A,
Schedule 3.8 or Schedule 3.9 (as appropriate).
4.3.3. Tax Returns. Within 10 Business Days after the date that
any Borrower makes any filing with the Internal Revenue Service relating to
its liability for income taxes (or otherwise delivers to any equity owner
of such Borrower annual tax and capital information on Form K-1), such
Borrowers must deliver a complete copy thereof to Administrative Agent and
each Lender.
4.3.4. SEC Filings and Press Releases. Within 10 Business Days
after the date that any Borrower or any organization that owns or controls
at least 50% of any class of equity interests of any Borrower makes any
filing with the Securities Exchange Commission (whether as a registration
statement or a filing on Form 8-K, Form 10-K, Form 10-Q, or otherwise) or
issues any press release, Borrowers must deliver a complete copy thereof to
Administrative Agent and each Lender.
4.3.5. Operating Reports. Within 30 calendar days after the end
of each calendar month, Xxxxxxxxx must prepare and deliver to Lender
reports containing the following information and data with respect to such
month reported for each Borrower (and division, as applicable), in form and
substance as required by and acceptable to Administrative Agent:
a. the total number of customers at the end of such month;
; and
b. the total number of dial-up customers at the end of
such month; and
c. the total number of dedicated customers at the end of
such month; and
d. the total number of web-hosting and co-location
customers at the end of such month; and
e. the total number of non-classified accounts at the end
of such month; and
f. the average revenue per class of accounts for such
month; and
g. the total number of residential customers at the end of
such month; and
h. the total number of new residential customers and the
total number of discontinued residential customers for
such month; and
i. the total number of commercial customers at the end of
such month; and
j. the total number of new commercial customers and the
total number of discontinued commercial customers for
such month.
4.4. Fiscal Year. Each Borrower will maintain a fiscal year that has a
December 31st year end.
4.5. Books and Records; Maintenance of Properties. Each Borrower will
keep and maintain satisfactory and adequate books and records of account in
accordance with GAAP. Each Borrower will also keep, maintain and preserve
all of its property and assets in good order and repair (ordinary wear and
tear excepted).
4.6. Existence and Good Standing. Each Borrower will preserve and
maintain (a) its existence as a corporation under the laws of its
jurisdiction of organization, and (b) its good standing in all
jurisdictions where it conducts business, and (c) the validity of all its
Authorizations and Licenses required or otherwise appropriate in the
conduct of its businesses.
4.7. Deposit Accounts. Borrowers (a) will maintain commercial deposit
accounts only at federally insured depository institutions rated as "well
capitalized" by their primary federal regulator and (b) will provide
Administrative Agent with written notice of the institution's name and
location and the account name and number with respect to each such account
within twenty (20) calendar days after opening or acquiring any such
account. The institution's name and location and the account name and
number for each such account currently in existence, as well as an
approximate current balance (i.e., a current balance at any time within the
preceding thirty (30) calendar days), are listed on Schedule 4.7.
4.8. Insurance; Disaster Contingency.
-------------------------------
4.8.1. General Insurance Provisions. Each Borrower will keep all
of its property and assets fully covered by insurance with reputable and
financially sound insurance companies (reasonably acceptable to
Administrative Agent). Each Borrower must also maintain such protection
against such hazards and liability (including casualty, liability, fire,
flood, business interruption, earthquake, workmen's compensation, and other
material risks to its property and business), in such amounts and with such
deductibles as is customary in the relevant industry and appropriate under
the relevant circumstances (and, in each instance, as is reasonably
acceptable to Administrative Agent). If any Borrower fails or refuses to
obtain or maintain any such insurance coverage, then Administrative Agent
(at its election) may (but is not obligated to) obtain and maintain such
insurance coverage on behalf of such Borrower, and the premiums and other
costs thereof (a) will be included in the indebtedness hereunder secured by
the Collateral and (b) will be due and payable by such Borrower to
Administrative Agent immediately upon demand. Each such policy for
liability insurance must name Administrative Agent as loss payee, and each
such other policy for insurance must name Administrative Agent as loss
payee and as additional insured. Each such policy must also require the
insurer to furnish Administrative Agent with written notice at least 25
calendar days prior to any termination, cancellation or lapse of coverage
and must provide Administrative Agent with the right (but not the
obligation) to cure any non-payment of premium. Upon Administrative Agent's
request, each Borrower (from time to time) will furnish Administrative
Agent with proof of such insurance (in form and substance acceptable to
Administrative Agent) and a copy of the related policy.
4.8.2. Disaster Recovery and Contingency Program. Each Borrower
will maintain (and at least annually review the sufficiency of) a disaster
recovery and contingency plan that addresses each Borrower's plans for
continuing operations upon the occurrence of a natural disaster or other
event that destroys or prevents the use of or access to such Borrower's
primary computer systems, information databases, software applications,
business records and operations facility and/or such Borrower's switch
sites and call centers. Such contingency plan at all times must be in form
and substance reasonably acceptable to Administrative Agent. Upon request,
each Borrower will provide Administrative Agent with a current copy of such
plan.
4.9. Loan Purpose. Borrowers will use the proceeds of each Advance
hereunder exclusively as set forth in Section 1.1.3.
4.10. Taxes. Each Borrower will pay and discharge all taxes,
assessments or other governmental charges or levies imposed on it or any of
its property or assets prior to the date upon which any penalty for
non-payment or late payment is incurred, unless (a) the same are then being
contested in good faith by appropriate proceedings diligently prosecuted,
and (b) adequate reserves therefor acceptable to Administrative Agent have
been established, and (c) Administrative Agent has been notified thereof in
writing, and (d) the consequences of such non-payment (in Administrative
Agent's reasonable judgment) will not have a Material Adverse Effect.
4.11. Management Changes. Borrowers will notify Administrative Agent
in writing within thirty (30) calendar days after any change (including any
dismissal or material change in title or status) in the senior management
personnel of any Borrower.
4.12. Litigation and Administrative Proceedings. Each Borrower will
notify Administrative Agent in writing immediately upon the institution or
commencement of any litigation, legal or administrative proceeding, or
labor controversy (a) with a purported amount in controversy in excess of
$100,000, or (b) that could otherwise reasonably be expected to have or
cause a Material Adverse Effect.
4.13. Monitoring Compliance; Occurrence of Certain Events. Each
Borrower at all times will maintain (and comply with) commercially
reasonable procedures and systems designed to monitor compliance and to
detect instances of non-compliance with the Loan Documents. Each Borrower
will notify Administrative Agent in writing immediately upon (a) the
occurrence of any Default or Event of Default hereunder, or (b) the
occurrence of any Default or Event of Default under any other Loan
Document, or (c) the happening of any event or the assertion or threat of
any claim that could reasonably be expected to have or cause a Material
Adverse Effect.
4.14. Compliance with Laws. Each Borrower will comply in all material
respects (a) with all material laws, rules, regulations and orders
(federal, state, local and otherwise) applicable to its business, and (b)
with the provisions and requirements of all Authorizations. Each Borrower
will notify Administrative Agent immediately in detail of any actual or
alleged material failure to comply with or violation of any such laws,
rules, regulations or orders, or under the terms of any of such
Authorizations, or of the occurrence or existence of any facts or
circumstances that with the passage of time, the giving of notice or
otherwise could create such a failure to comply or violation or could
reasonably be expected to occasion the termination of any of such
Authorization. Such "material" laws, rules, regulations and orders shall
include, as applicable, (i) the Federal Communications Act and each State
Communications Act and the rules, regulations, policies, procedures and
orders of the FCC and each such State PUC, and (ii) the Environmental
Control Statutes, and (iii) ERISA.
4.15. Further Actions.
---------------
4.15.1. Additional Collateral. Each Borrower will execute,
deliver and record (or, as appropriate, cause the execution, delivery and
recordation) at any time upon Administrative Agent's request and in form
and substance reasonably satisfactory to Administrative Agent, any of the
following instruments in favor of Administrative Agent as additional
Collateral hereunder: (a) mortgages, deeds of trust and/or assignments on
or of any real or personal property owned, leased or licensed by it, and
(b) certificates of title encumbrances against any of its titled vehicles,
and (c) any other like assignments or agreements specifically covering any
of its properties or assets (including assignments of any patents,
trademarks, copyrights, databases, trade secrets and other forms of
intellectual property and deposit account control agreements), and (d) any
financing or continuation statements requested by Administrative Agent.
4.15.2. Further Assurances. From time to time, each Borrower will
execute and deliver (or will cause to be executed and delivered) such
supplements, amendments, modifications to and/or replacements of the Loan
Documents and such further instruments as may be reasonably required to
effectuate the intention of the parties to (or to otherwise facilitate the
performance of) the Loan Documents.
4.15.3. Estoppel Certificates. Upon Administrative Agent's
request, each Borrower will execute, acknowledge and deliver (or, as
appropriate, cause the execution, acknowledgment and delivery) to such
Persons as Administrative Agent may request a statement in writing
certifying as follows (to the best of its knowledge, after diligent
inquiry): (a) that the Loan Documents (as amended, if applicable) are
unmodified and in full force and effect, and (b) that the payments under
the Loan Documents required to be paid by Borrowers have been paid, and (c)
the then unpaid principal balance of Facilities hereunder, and (d) whether
or not any Default is then occurring under any of the Loan Documents and,
if so, specifying each such Default of which the signer may have knowledge,
and (e) whether or not any Borrower is then entitled to assert any claims,
defenses or causes of action that would impose any liability upon
Administrative Agent or any Lender or that would otherwise challenge the
enforceability any Loan Document or any provision thereof (including, the
existence of any so-called "Lender Liability" claims or defenses). Unless
such Borrower otherwise consents (which consent will not be unreasonably
withheld, delayed or conditioned), Administrative Agent must give such
Borrower at least ten (10) Business Days to complete and deliver any such
certificate. Each Borrower understands and agrees that any such certificate
delivered pursuant to this Section may be relied upon by Administrative
Agent, each Lender, and, if different, by the recipient thereof.
4.15.4. Waivers and Consents. At any time upon Administrative
Agent's request, each Borrower will use its best efforts to obtain and
deliver (in form and substance reasonably satisfactory to Administrative
Agent) a waiver or consent to the assignment to Administrative Agent of any
contract, lease, Authorization or other agreement to which it is a party.
4.15.5. Access and Audits. Administrative Agent and each Lender
(from time to time at its discretion) may conduct audits of the Collateral
and of the performance and operations of any Borrower. Each Borrower (upon
Administrative Agent's request from time to time) will use its best efforts
to provide Administrative Agent and each Lender (and their representatives
and agents) with reasonable access to such Borrower's management personnel,
books and records, property and operations (including its financial
records), whether such property, books and records are in the possession of
such Borrower or are in the possession of a third party (including the
possession of such Xxxxxxxx's Affiliates, accountants and legal counsel).
In connection with any such audit, Administrative Agent and each Lender may
also make notes and copies of (and extracts from) relevant records.
4.15.6. Attendance at Board of Directors Meetings. Any Lender
(from time to time at its discretion and at its sole cost and expense) may
attend any or all meetings of the board of directors of any Borrower
(including the meetings of any committees or sub-committees thereof)
provided, however, that such recipients agree to abide by the
confidentiality/non-use provisions of Section 10.5 for purposes of
complying with federal securities laws and restrictions on the use of
non-public information. Borrowers will provide Administrative Agent with
written notice thereof at least ten (10) Business Days prior to each such
meeting and also will provide Administrative Agent with a copy of all
written communications, minutes and materials distributed in connection
therewith. Notwithstanding the foregoing, at the request of Borrowers,
representatives of such Xxxxxxx will temporarily leave a meeting of the
board of directors if such action is necessary to preserve the Borrowers'
attorney-client privilege with respect to such meetings or the information
disseminated therein.
4.16. Costs and Expenses. Borrowers will pay or reimburse
Administrative Agent and each Lender for all fees and costs (including all
reasonable attorneys' fees and disbursements and the reasonable fees and
disbursements of in-house counsel and documentation personnel) that
Administrative Agent or any Lender may pay or incur in connection with (a)
the preparation, negotiation and review of the Loan Documents, any waivers,
consents and amendments in connection herewith or therewith and all other
documentation related hereto or thereto, and (b) the funding of the
indebtedness or any Advance hereunder, and (c) the initial and continuing
perfection or protection of Administrative Agent's or any Lender's interest
in any of the Collateral, and (d) the collection or enforcement of any of
the Loan Documents, and (e) the periodic examination and auditing of the
Collateral and the books, records and operations of Borrowers, and (f)
Administrative Agent's release of its interests in the Collateral in
accordance with the terms of the Loan Documents. Borrowers will pay any and
all recordation taxes or other fees due upon the filing of the financing
statements or documents of similar effect required to be filed under the
Loan Documents, and will provide Administrative Agent with a copy of any
receipt or other evidence reflecting such payments. All obligations
provided for in this Section shall survive the termination of this
Agreement and/or the repayment of indebtedness hereunder.
4.17. Other Information. Each Borrower will provide Administrative
Agent with any other documents and information (financial or otherwise)
reasonably requested by Administrative Agent or its counsel from time to
time.
4.18. Additional FCC and Other Regulatory Affirmative Covenants.
Without limiting the generality of the foregoing affirmative covenants,
each Borrower further covenants and agrees as follows:
4.18.1. Service Interruption. Each Borrower will notify
Administrative Agent in writing within 36 hours after any period during
which the transmission at any internet data center or call center owned or
used by any Borrower is interrupted or curtailed for an aggregate of 24
hours or more (whether or not consecutive) during any period of 48
consecutive hours. Each Borrower will make every effort to restore such
transmission as soon as possible to the level that was obtained prior to
such interruption or curtailment.
4.18.2. Correspondence, Orders and Filings. Within 5 Business
Days after mailing or receipt (as applicable), each Borrower will provide
Administrative Agent with a copy of each significant or material
correspondence, application or filing with, to or from the FCC or any State
PUC. Within 5 Business Days after the release of any order of the FCC or
any State PUC (a) designating or proposing to designate an application by
any Borrower to the FCC or a State PUC for an evidentiary hearing, or
designating or proposing to designate for an evidentiary hearing the
possible non-renewal, revocation or modification of any License or
Authorization issued to it by the FCC or a State PUC, or (b) imposing a
fine, penalty or other forfeiture upon any Borrower, or (c) initiating any
other enforcement action against any Borrower, or as soon as any Borrower
ascertains that any such order will be forthcoming from the FCC or any
State PUC, then such Borrower must notify Administrative Agent of the same
and, if any such order has been issued by the FCC or a State PUC, must
provide a copy of such order to Administrative Agent.
4.19. Billing System Integration. On or before June 30, 2000 Borrowers
shall fully integrate the billing systems for all Borrowers into one
consolidated and comprehensive billing system. Borrowers shall provide
Administrative Agent satisfactory evidence of compliance with this Section
4.19.
4.20. Post-Closing Items. Notwithstanding anything to the contrary
contained in this Agreement or the other Loan Documents, the Borrowers
shall deliver the following documents, agreements and certificates, each
duly executed, in form and substance satisfactory to Administrative Agent
and, when applicable, recorded or filed in the appropriate public office,
within the time periods set forth below:
a. A mortgage or deed of trust, as appropriate, in a form
provided by the Lenders, covering the those certain premises with an
address at 000 Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, as acquired by
the Borrowers in the Telecon Acquisition within 20 Calendar Days of the
closing date of the Telecon Acquisition.
b. Amended articles of incorporation and executed UCC-1 financing
statements with respect to the surviving companies in the Telecon
Acquisition, whose names shall be "Telecon Communications Corp." and
"Telesupport, Inc." within 10 calendar days of the closing date of the
Telecon Acquisition.
x. Xxxx releases on all companies acquired pursuant to, or
certain assets of which are acquired pursuant to, the Additional
Acquisitions, including, but not limited to, Supernet, Inc. and I-Conn,
Inc., on the closing date, from time to time, of the Additional
Acquisitions.
x. Xxxx releases on Ulsternet, Inc. and Webway, LLC within 30
calendar days of the Closing Date. However, Borrowers will use their best
efforts to obtain such lien releases at the earliest possible date.
e. Copies of the referenced and scheduled leases for the Landlord
Estoppel and Consent Agreements on the premises occupied by (i)
XxxxxxxXxxxxx.xxx, Inc.; (ii) Borg Internet Services, Inc.; (iii) Caravela
Software, Inc.; and (iv) Ulsternet, Inc. within 10 calendar days of the
Closing Date.
f. An Estoppel and Consent Agreement in a form provided by the
Lenders from Cisco Systems Capital Corporation regarding the Master Lease
Agreement #2581 entered into by Global 2000 Communications, Inc. within 30
days of the Closing Date.
ARTICLE 5: NEGATIVE COVENANTS
Each Borrower (jointly and severally) hereby covenants and agrees
that, so long as any indebtedness remains outstanding hereunder, each
Borrower will comply with the following negative covenants (unless Required
Lenders through Administrative Agent otherwise consent in writing, which
consent will not be unreasonably withheld while no Default is occurring):
5.1. Capital Expenditures. Borrowers (on a consolidated basis) will
not incur (a) Capital Expenditures in connection with the design and
construction of Internet data centers in their fiscal year ending December
31, 2000 in excess of $4,000,000 and (b) Capital Expenditures for other
items in their fiscal year ending December 31, 2000 in excess of
$2,500,000; and, (c) Capital Expenditures in any fiscal year thereafter in
excess of $2,500,000.
5.2. Additional Indebtedness. No Borrower will borrow any monies or
create, incur, assume or permit to exist any additional indebtedness,
obligations or liabilities (including monitory obligations evidenced by a
promissory note and monetary obligations under non-compete and consulting
arrangements) except as follows (collectively, the "Permitted
Indebtedness"):
a. Borrowings from Lenders hereunder; and
b. Trade indebtedness, if and to the extent (i) such indebtedness
is incurred in the normal and ordinary course of business for value
received and (ii) such indebtedness (to the extent it exceeds $10,000 to
any single vendor) is paid on a current basis or is less than 60 calendar
days past due; and
c. Indebtedness and obligations incurred TO PURCHASE FIXED OR
CAPITAL ASSETS, consistent with the restrictions in Section 5.1 and Section
5.5, provided, however, that (1) the aggregate amount of such asset
acquisition indebtedness outstanding at any time (together with the
aggregate amount of Capital Lease indebtedness outstanding under Subsection
5.2.d) may not exceed $3,000,000, and (2) such indebtedness must be
immediately included in the calculation of Funded Debt, and (3) such fixed
or capital assets being purchased may not constitute (a) customized
application software or systems integration software unless Borrowers have
furnished Administrative Agent with an estoppel and consent from the holder
of the Lien in form and substance satisfactory to Lenders, or (b) equity
interests in or substantially all of the assets of another enterprise other
than Permitted Investments, or (c) any other asset the loss of which could
reasonably be expected to have or cause a Material Adverse Effect unless
Borrowers have furnished Administrative Agent with an estoppel and consent
from the holder of the Lien in form and substance satisfactory to Lenders,
and (4) if such asset acquisition indebtedness is secured, and if the
agreement giving rise to such indebtedness is a Material Contract, Borrower
shall have furnished Administrative Agent with an estoppel and consent from
the holder of the Lien in form and substance satisfactory to Lenders; and
d. Indebtedness and obligations incurred UNDER CAPITAL LEASES,
consistent with the restrictions in Section 5.1 and Section 5.5, provided,
however, that (1) the aggregate amount of such Capital Lease indebtedness
outstanding at any time (together with the aggregate amount of asset
acquisition indebtedness outstanding under Subsection 5.2.c) may not exceed
$3,000,000, and (2) such indebtedness must be immediately included in the
calculation of Funded Debt, and (3) such fixed or capital assets being
leased may not constitute (a) customized application software or systems
integration software unless Borrowers have furnished Administrative Agent
with an estoppel and consent from the lessor in form and substance
satisfactory to Lenders, or (b) any asset the loss of which could
reasonably be expected to have or cause a Material Adverse Effect unless
Borrowers have furnished Administrative Agent with an estoppel and consent
from the lessor in form and substance satisfactory to Lenders, and (4) if
the Capital Lease is a Material Contract, Borrower shall have furnished
Administrative Agent with an estoppel and consent from the lessor in form
and substance satisfactory to Lenders; and
e. Indebtedness in favor of another Borrower if and to the extent
permitted under Section 5.4(b); and
f. Subordinated Indebtedness if and to the extent permitted under
Section 5.11; and
g. Such indebtedness listed on Schedule 5.2 with the prior
written consent of Xxxxxxx through Administrative Agent (which consent will
not be unreasonably withheld while no Default is occurring). Unless Lenders
through Administrative Agent otherwise expressly consent in writing (or
unless otherwise specified on Schedule 5.2), all indebtedness listed on
Schedule 5.2 must be included in the calculation of Funded Debt.
5.3. Guaranties. No Borrower will guarantee, assume or otherwise be or
agree to become liable in any way, either directly or indirectly, for any
additional indebtedness or liability of any other Person, except as follows
(collectively, the "Permitted Guaranties"): (a) in favor of Lenders or
Administrative Agent, or (b) to endorse checks, drafts and negotiable
instruments for collection in the ordinary course of business, or (c) as
listed on Schedule 5.3 with the consent of Lenders, or (d) to the extent
that Lenders through Administrative Agent otherwise consent in writing.
5.4. Loans. No Borrower will make any loans or advances to any other
Person, except as follows (collectively, the "Permitted Loans"): (a) loans
to employees that do not exceed $25,000 to any individual employee and do
not at any time in the aggregate outstanding exceed $150,000 among all such
loans to all such employees, and (b) as listed on Schedule 5.4 with the
consent of Lenders through Administrative Agent, and (c) demand loans to
other Borrowers that are appropriately reflected on each Borrower's
financial records and evidenced by a written promissory note assigned to
Administrative Agent as additional Collateral.
5.5. Liens and Encumbrances; Negative Pledge. No Borrower will create,
permit or suffer the creation or existence of any Liens on any of its
property or assets (real or personal, tangible or intangible), except as
follows (collectively, the "Permitted Liens"):
a. Liens in favor of Administrative Agent as security for the
Obligations under the Loan Documents; and
b. Liens arising in favor of sellers or lessors for indebtedness
and obligations incurred to purchase or lease fixed or capital assets as
permitted under Section 5.2.c or Section 5.2.d, provided, that (1) such
Liens secure only the indebtedness and obligations created thereunder (but
not any related monetary obligations under non-compete and consulting
arrangements) and are limited to the assets purchased or leased pursuant
thereto, and (2) such fixed or capital assets do not constitute (a)
customized application software or systems integration software unless
Borrowers have furnished Administrative Agent with an estoppel and consent
from the holder of such Lien in form and substance satisfactory to Lenders,
or (b) equity interests in or substantially all of the assets of another
enterprise, or (c) any other asset the loss of which could reasonably be
expected to have or cause a Material Adverse Effect unless Borrowers have
furnished Administrative Agent with an estoppel and consent from the holder
of such Lien in form and substance satisfactory to Lenders, and, (3) if the
agreement giving rise to such Lien constitutes a Material Contract,
Borrower shall have furnished Administrative Agent with an estoppel and
consent from the holder of such Lien in form and substance satisfactory to
Lenders; and
c. Liens for taxes, assessments or other governmental charges
(federal, state or local) that are not yet delinquent or that are then
being currently contested in good faith by appropriate proceedings
diligently prosecuted, provided, however, that (1) the existence of such
Liens and challenge of such charges must have been fully disclosed to
Administrative Agent, and (2) adequate reserves therefor in accordance with
GAAP must have been established, and (3) such Liens (in Administrative
Agent's reasonable opinion) could not reasonably be expected to have or
cause a Material Adverse Effect; and
d. Deposits in the ordinary course of business to secure
obligations under workmen's compensation, unemployment insurance or social
security laws or similar legislation; and
e. Deposits to secure performance or payment bonds, bids,
tenders, contracts, leases, franchises or public and statutory obligations
required in the ordinary course of business; and
f. Deposits to secure surety, appeal or custom bonds required in
the ordinary course of business; and
g. Liens of carriers, warehousemen, mechanics, materialmen and
landlords incurred in the ordinary course of business for sums not past due
or for sums being currently contested in good faith by appropriate
proceedings diligently prosecuted, provided, however, that (1) the
existence of such Liens and challenge of such sums allegedly due must have
been fully disclosed to Administrative Agent, and (2) adequate reserves
therefor in accordance with GAAP must have been established, and (3) such
Liens (in Administrative Agent's reasonable opinion) could not reasonably
be expected to have or cause a Material Adverse Effect; and
h. Easements, rights-of-way, restrictions and other similar
encumbrances on real property of a Borrower that, independently and in the
aggregate, do not (1) materially interfere with the occupation, use or
enjoyment by such Borrower of the property or assets encumbered thereby in
the normal course of business or (2) materially impair the value of the
property subject thereto; and
i. Liens listed on Schedule 5.5 with the consent of Required
Lenders through Administrative Agent (which consent will not be
unreasonably withheld while no Default is occurring).
No Borrower will similarly covenant to or in favor of any other Person that
it will not create, permit or suffer the creation or existence of any Liens
on any of its property or assets. In addition, no Borrower will purchase or
otherwise acquire any additional assets (including any leasehold interest
therefor) unless Administrative Agent's interest in such property either
(a) is already covered and perfected pursuant to an existing and effective
UCC-1 financing statement, fixture filing, mortgage and/or leasehold
mortgage (as appropriate) in favor of Administrative Agent or (b) otherwise
becomes properly perfected within 5 calendar days after any such
acquisition by such Borrower's filing (at its expense) all necessary UCC-1
financing statements, fixture filings, mortgages and/or leasehold mortgages
(as appropriate, and in form and substance reasonably acceptable to
Administrative Agent). Moreover, no Borrower will establish or maintain any
"securities account" with any "securities intermediary" (as such terms are
defined in Article 8 of the UCC) except as permitted under Section 5.7.
5.6. Transfer of Assets. No Borrower will sell, lease, license,
transfer or otherwise dispose of all or substantially all of its assets. In
addition, no Borrower will sell, lease, license, transfer or otherwise
dispose of ANY of its assets other than as follows (collectively, the
"Permitted Transfers"): (a) pursuant to a transaction with an unrelated
third party in the normal and ordinary course of business for value
received and otherwise in accordance with the terms hereof (including
Section 1.1.6.5.c) provided that proceeds received by the Borrower for such
transactions shall, singly or in the aggregate, be less than $250,000, or
(b) with respect to obsolete or replaced equipment no longer useful in the
operation of any Borrower's business, pursuant to a reasonable and
customary transaction with an unrelated third party and otherwise in
accordance with the terms hereof, and (c) pursuant to a reasonable and
customary transaction with another Borrower that is appropriately reflected
on each Borrower's financial records.
5.7. Acquisitions and Investments. No Borrower will purchase or
otherwise acquire (including by way of share exchange) any part or amount
of the equity ownership or assets of, or make any investments in, any other
corporation, partnership, limited liability company or other venture or
enterprise. Notwithstanding the foregoing, Borrowers may acquire or invest
in the following (collectively, the "Permitted Investments"):
a. Government and agency securities backed by the full faith and
credit of the U.S. federal government; and
b. Commercial paper of a U.S. domestic issuer rated A-1+ or A-1
by Standard & Poor's Ratings Group or P-1 by Xxxxx'x Investor Services,
Inc. and maturing not more than 90 calendar days from the date of
acquisition thereof; and
c. Certificates of deposit (maturing within 12 calendar months
after the date of issuance), time deposits, other deposits and bankers'
acceptances issued by or established with U.S. federally insured commercial
banks rated as "well capitalized" by their primary federal regulators, and
having unimpaired capital and unimpaired surplus (collectively) of at least
$250 million, and whose commercial paper (or commercial paper that is
supported by such bank's letter of credit or commitment to lend) is rated
as A-1+ or A-1 by Standard & Poor's Ratings Group or P-1 by Xxxxx'x
Investor Services, Inc.; and
d. Assets acquired pursuant to transactions permitted under
Section 5.1 or Section 5.2; and
e. Inventory sold in the ordinary course of business for value
received; and
f. Equity interests in other Borrowers; and
g. Investments listed on Schedule 5.7 with the consent of
Required Lenders through Administrative Agent (which consent will not be
unreasonably withheld while no Default is occurring).
No Borrower will establish or maintain any "securities account" with any
"securities intermediary" (as such terms are defined in Article 8 of the
UCC), unless a control agreement acceptable in form and substance to
Administrative Agent is first executed by such "securities intermediary"
securing Administrative Agent's first priority interest and rights in and
to all "financial assets" and "security entitlements" associated with such
"securities account."
5.8. New Ventures; Mergers. No Borrower will (a) enter into any new
business activities or ventures not directly related to its current
business, or (b) merge or consolidate with or into any other corporation,
partnership, limited liability company or other organization, or (c) create
or acquire (or cause or permit the creation or acquisition of) any
Subsidiary or Affiliate (except the hiring of officers and directors).
Notwithstanding the foregoing, Borrowers may create or acquire (or cause or
permit the creation or acquisition of) one or more wholly-owned
Subsidiaries provided that (1) each such Subsidiary (at Required Lenders'
sole discretion) becomes a "Borrower," "Guarantor" and/or "Obligor" under
the Loan Documents, and (2) a first priority security interest in and
pledge of 100% of the assets and equity of each such Subsidiary is
perfected in favor of Administrative Agent as additional Collateral under
the Loan Documents (except as otherwise permitted under Section 5.5).
5.9. Transactions with Affiliates. No Borrower will enter into any
transaction or agreement with any Subsidiary, Affiliate or other related
enterprise except as follows: (a) reasonable and customary compensation
arrangements in the ordinary course of business with its officers and
directors, and (b) guaranties (if any) to the extent permitted by Section
5.3, and (c) employee loans (if any) to the extent permitted under Section
5.4, and (d) reasonable and customary asset transfers among Borrowers (if
any) to the extent permitted under Section 5.6, and (e) reasonable
dividends and distributions (if any) to the extent permitted by Section
5.10, and (f) reasonable and customary management fees (if any) to the
extent permitted under Section 5.12, and (g) transactions in the ordinary
course of business between Borrowers.
5.10. Distributions or Dividends. No Borrower will declare or make
(directly or indirectly) any payment or distribution with respect to, or
incur any liability for the purchase, acquisition, redemption or retirement
of, any of its equity interests (including warrants therefor) or as a
dividend, return of capital or other payment or distribution of any kind to
any holder of any such equity interest. Notwithstanding the foregoing, so
long as no Default then exists under the Loan Documents or would otherwise
be caused by the payment of such dividend, then any Borrower may declare
and distribute reasonable and lawful dividends to any of its owners that
are also a Borrower. Notwithstanding the foregoing, BiznessOnline will make
all payments and distributions to the Lenders entitled thereto required
under Section 1.7.1.2 or under or in connection with the Warrant Agreement,
the Warrants and/or any related warrant shares.
5.11. Payment of Subordinated Indebtedness. No Borrower will incur or
make any payments on Subordinated Indebtedness except as subsequently
permitted by this Section or by a separate intercreditor or subordination
agreement executed between such other creditor and Administrative Agent.
Notwithstanding the foregoing, if any Subordinated Indebtedness is
subsequently authorized by Lenders and if any Default occurs under the Loan
Documents, then no Borrower will make any further payments in connection
with its Subordinated Indebtedness unless and until such Default has been
waived or cured to Administrative Agent's and Xxxxxxx' satisfaction.
5.12. Payment of Management Fees and Other Compensation. No Borrower
will pay any funds or otherwise incur or accrue any liabilities for any
management or related services except (a) reasonable and customary
compensation to bona fide resident employees of such Borrower and (b) as
otherwise permitted by this Section.
5.13. Issuance of Additional Equity. No Borrower other than
BiznessOnline will permit the issuance, reissuance, conversion or exercise
of any equity interests (common stock, preferred stock, partnership
interests, member interests or otherwise) or any options, warrants,
convertible securities or other rights to purchase such beneficial or
equity interest. Notwithstanding the foregoing, a Borrower may issue
additional equity interests provided that: (a) such Xxxxxxxx has provided
written notice thereof to Administrative Agent at least 15 Business Days
prior to such issuance (which notice must at least describe the type and
amount of equity interests being purchased, the consideration to be
received by such Borrower in exchange for such issuance, and the identity
of the purchaser), and (b) such equity interests are pledged to
Administrative Agent (with a first lien priority) as additional Collateral
hereunder at the time of issuance thereof using documentation that is in
form and substance reasonably acceptable to Administrative Agent, and (c)
the proceeds thereof are utilized in a manner in compliance with Section
1.1.6.5.c, and (d) no Default or Event of Default then exists under the
Loan Documents or would otherwise result from the issuance of such equity
interest (including a Default under the change in control restrictions set
forth in Section 7.1.8).
5.14. Removal of Assets. No Borrower will remove or permit the removal
of any asset or group of assets (with a collective fair market value
exceeding $10,000) to a jurisdiction or a county in which no financing
statement on Form UCC-1 has been filed naming Administrative Agent as
"secured party" with respect to such assets. Notwithstanding the foregoing,
a Borrower may remove the following types of assets under the following
conditions: (a) temporary removal of equipment for repair or replacement
provided that Administrative Agent has received prior written notice
thereof indicating the type of equipment, its approximate fair market
value, the destination location and an estimate of the length of time that
such equipment will be removed from the relevant jurisdiction, and (b)
booths, displays, marketing materials and related accompanying equipment of
a Borrower being used temporarily in connection with marketing such
Borrower's business at trade shows or otherwise (provided that the
aggregate fair market value thereof does not exceed $25,000), and (c)
portable computers and related accompanying equipment being used by the
officers, employees and independent representatives of a Borrower in
connection with accomplishing such Borrower's business activities at home
offices or otherwise (provided that the aggregate fair market value thereof
does not exceed $25,000). Moreover, no Borrower will move the location of
its chief executive office (or change its official mailing address) without
providing Administrative Agent with prior written notice thereof.
5.15. Modifications to Organic Documents. No Borrower will (a) amend
or otherwise modify any of its Organic Documents, or (b) change its
official name, its operating names or the names under which it executes
contracts and conducts business.
5.16. Terms of and Modifications to Material Relationships. No
Borrower will (and will not permit any other party to) cancel, terminate,
amend, modify or otherwise alter (a) any Subordinated Indebtedness, or (b)
any agreement regarding the provision of management services to any
Borrower, or (c) any Material Contract listed (or contract that should be
listed) on Schedule 3.8. In addition, each Borrower will use commercially
reasonable efforts to ensure that no Material Contract entered into by any
Borrower after the Closing Date (including the renewal or extension of any
Material Contract existing as of the Closing Date) will restrict any
Borrower's ability to collaterally assign or encumber such Material
Contract in favor of Administrative Agent.
5.17. Margin Stock Restrictions; Other Federal Statutes. No Borrower
will use any of the proceeds hereunder, directly or indirectly, to purchase
or carry, or to reduce or retire any indebtedness that was originally
incurred to purchase or carry, any Margin Stock or for any other purpose
that might constitute the transactions contemplated hereby as a "Purpose
Credit" within the meaning of the FRB's Margin Regulations. In addition, no
Borrower will engage as its principal business in the extension of credit
for purchasing or carrying Margin Stock. No Borrower will cause or permit
any Loan Document to violate any other regulation of the FRB or the SEC or
any provision of the Securities Act of 1933, the Securities Exchange Act of
1934, the Investment Company Act of 1940 or the Small Business Investment
Act of 1958, each as amended, or any rules or regulations promulgated under
any of such statutes.
5.18. Holding Company Structure. BiznessOnline shall not conduct any
business operations (other than as a holding company of the other
Borrowers). BiznessOnline shall not own, hold or lease any operating
assets, excluding the leasing of its corporate headquarters and related
office furniture and office equipment and the employment of senior
management and administrative staff.
ARTICLE 6: ADDITIONAL COLLATERAL AND RIGHT OF SET OFF
6.1. Additional Collateral. As additional collateral for the payment
of any and all indebtedness and obligations of each Borrower to
Administrative Agent or any Lender (whether matured or unmatured, and
whether now existing or hereafter incurred or created hereunder or
otherwise), each Borrower hereby grants Administrative Agent and each
Lender a security interest in and a lien upon all funds, balances and other
property of any kind of such Borrower, or in which such Borrower has any
interest (limited to the interest of such Borrower therein), now or
hereafter in the possession, custody or control of Administrative Agent or
such Lender or any Affiliate of Administrative Agent or such Lender.
6.2. Right of Set-Off. Administrative Agent and each Lender are hereby
authorized at any time and from time to time during the existence of an
Event of Default hereunder (unless expressly prohibited by applicable law)
to set-off and apply any and all deposits (general or special, time or
demand, provisional or final) and other indebtedness at any time held or
owing by Administrative Agent or any Lender (or any of their Affiliates) to
or for the credit or the account of any Borrower against any and all of the
indebtedness and monetary obligations of any Borrower now or hereafter
existing under the Loan Documents or any other evidence of indebtedness
originated, acquired or otherwise held by Administrative Agent or any
Lender, irrespective of whether Administrative Agent or such Lender shall
have made any demand under the Loan Documents or other indebtedness and
although such obligations may be unmatured. Administrative Agent or such
Xxxxxx agrees to notify Borrowers within a commercially reasonable time
after any such set-off and application made by Administrative Agent or such
Lender; provided, however, that the failure to give such notice shall not
in any way affect the validity of such set-off and application.
6.3. Additional Rights. The rights of Administrative Agent and each
Lender under this Article 6 are in addition to the other rights and
remedies (including other rights of set-off) that Administrative Agent and
Lenders may have by contract, at law, or otherwise.
ARTICLE 7: DEFAULT AND REMEDIES
7.1. Events of Default. Each of the following events separately
constitutes an independent Event of Default hereunder:
7.1.1. Payment Obligations. If any payment of principal,
interest, fees, expenses, indemnities or other sums payable to
Administrative Agent or any Lender under any Loan Document (including under
any Note) is not received by Administrative Agent in immediately available
funds on the date such payment is due and payable and such failure to
receive payment in immediately available funds continues for a period of
five (5) Business Days after the due date therefor.
7.1.2. Representations and Warranties. If any representation,
warranty or other statement made in any Loan Document, or in any written
report, schedule, exhibit, certificate, agreement, or other document given
by or on behalf of any Borrower or any other Obligor (or otherwise
furnished in connection herewith) when made was misleading or incorrect in
any material respect.
7.1.3. Financial Covenants. If Borrowers default in or fail to
observe at any time any of the covenants set forth in Section 4.1.
7.1.4. Other Covenants in Loan Documents. If any Borrower or any
other Obligor defaults in the full and timely performance when due of any
other covenant or agreement contained in any Loan Document (or in any other
document or agreement now or hereafter executed or delivered in connection
herewith), and such default remains uncured for a period of ten (10)
Business Days after the earlier of the date that Administrative Agent or
any Lender notifies any Borrower thereof or the date that any Borrower
otherwise acquires knowledge or should have acquired knowledge thereof.
7.1.5. Default Under Other Agreements with Administrative Agent
or Lenders. If any event of default (as described or defined therein, which
term shall include any notice and cure periods provided therein) occurs or
exists under the provisions of any other credit agreement, security
agreement, mortgage, deed of trust, indenture, debenture, cash management
or account agreement, contract, lease or other agreement between any
Borrower, any Affiliate of any Borrower or any other Obligor and
Administrative Agent or any Lender (or any Affiliate of Administrative
Agent or any Lender), unless such default is waived by Administrative Agent
or such Lender or cured to Administrative Agent's or such Xxxxxx's
satisfaction.
7.1.6. Default Under Material Agreements with Other Parties. (a)
If any Borrower fails or refuses to make any required payment (whether
principal, interest or otherwise) with respect to any Funded Debt (or with
respect to any guaranty or reimbursement obligation of any such
indebtedness) prior to the expiration of any applicable grace period with
respect to such payment, OR (b) if any such indebtedness for borrowed money
is accelerated prior to its express maturity as a result of any default
thereunder, OR (c) if any event of default (as described or defined
therein, which term shall include any notice and cure periods provided
therein) occurs or exists under the provisions of any Material Contract
listed on Schedule 3.8 (or a contract that should be listed on Schedule 3.8
under the terms hereof).
7.1.7. Security Interest. If the security interest or lien in any
of the Collateral (with a fair market value exceeding collectively
$25,000), other than Collateral consisting of equity ownership interest in
Borrowers or in subsidiaries or other securities of Borrowers (for which
there is no permissible threshold for non-compliance), at any time does not
constitute a legal, valid and enforceable security interest or lien in
favor of Administrative Agent. Notwithstanding the foregoing, the
occurrence of such an event involving Collateral (other than Collateral
consisting of equity ownership interests or other securities) with a fair
market value of less than $100,000 will not constitute an Event of Default
hereunder if and so long as (1) Lender was notified of such Default in
writing within 10 Business Days after the occurrence thereof, and (2) such
Lien is subsequently created and/or perfected in an legal, valid and
enforceable manner to Lender's satisfaction (and without in any way
adversely affecting Lender's rights in or to such Collateral) within 30
calendar days after such event occurs.
7.1.8. Change of Control.
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a. If there occurs any direct or indirect change in the
ownership (i.e. any change exceeding 50% of the voting or beneficial
interest for such structure as of the Closing Date) or in the control of
BiznessOnline.
b. If BiznessOnline ceases to own and control 100% of each
class of securities of each other Borrower.
c. If Xxxx Xxxxx ceases to hold a senior management position
with active involvement in the management and operations of each Borrower,
unless (1) such event is by reason of his or her death or disability and
(2) replacement management arrangements satisfactory to Required Lenders
(in their sole and absolute discretion) are made within 60 calendar days
after such death or within 120 calendar days after the commencement of such
period of disability.
7.1.9. Government Action.
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a. If custody or control of any substantial part of the
property of any Borrower is assumed by any governmental agency or any court
of competent jurisdiction at the instance of any governmental agency.
b. If any governmental regulatory authority or judicial body
makes any other final non-appealable determination that (in Required
Lenders' reasonable judgment) could reasonably be expected to have or cause
a Material Adverse Effect.
7.1.10. Insolvency. If any Borrower or any holder of equity
interests of any Borrower other than BiznessOnline (whether as common
stock, preferred stock, partnership interest, membership interest or
otherwise) (a) becomes insolvent, bankrupt or generally fails to pay its,
his or her debts as such debts become due; or (b) is adjudicated insolvent
or bankrupt in any proceeding; or (c) admits in writing an inability to pay
its, his or her debts; or (d) comes under the authority of a custodian,
receiver or trustee (or one is appointed for substantially all of its, his
or her property); or (e) makes an assignment for the benefit of creditors;
or (f) has commenced against it, him or her any proceedings under any law
related to bankruptcy, insolvency, liquidation, dissolution or the
reorganization, readjustment or release of debtors that is either not
contested or if contested is not dismissed or stayed within thirty (30)
calendar days after the commencement thereof; or (g) commences or
institutes any proceedings under any law related to bankruptcy, insolvency,
liquidation, dissolution or the reorganization, readjustment or release of
debtors; or (h) calls a meeting of creditors with a view to arranging a
composition or adjustment of debt; or (i) by any act or failure to act that
indicates consent to, approval of or acquiescence in any of the foregoing.
7.1.11. Additional Liabilities. If any judgment, writ, warrant,
attachment or execution or similar process that calls for payment or
presents liability in excess of $250,000 is rendered, issued or levied
against any Borrower or any of its properties or assets and such liability
is not paid, waived, stayed, vacated, discharged, settled, satisfied or
fully bonded within thirty (30) calendar days after it is rendered, issued
or levied.
7.1.12. Business Interruption. If the operations of any internet
backbone connection used, owned or controlled by any Borrower is
interrupted or curtailed at any time for a period in excess of 48 hours
(whether or not consecutive) during any period of 10 consecutive calendar
days.
7.1.13. FCC and Other Regulatory-Action Defaults. In addition to
the events described in Section 7.1.9, (a) if any Official Body terminates,
revokes or substantially and adversely modifies any material Authorization
of any Borrower (or any Affiliate thereof), or (b) if any Official Body
commences an action or proceeding seeking the termination, suspension,
revocation, non-renewal or substantial and adverse modification of any
material Authorization, or (c) if any material Authorization expires by its
terms and is not renewed in a timely manner, or any material agreement
which is necessary to the operation of any broadcast facility, transmission
site or switch facility expires or is revoked or terminated and is not
replaced by a comparable substitute or a substitute reasonably acceptable
to Required Lenders. For purposes of this Section 7.1.13, a "material"
Authorization is (1) any License or other Authorization issued by the FCC
or any State PUC, and (2) any other License or other Authorization (alone
or in conjunction with other Licenses and Authorizations then subject to
any of the circumstances described in this Section) the loss of which (in
Required Lenders' reasonable judgment) could reasonably be expected to have
or cause a Material Adverse Effect.
7.1.14. Material Adverse Change. If Required Lenders determine in
good faith that a Material Adverse Change has occurred with respect to any
Borrower from the condition set forth in the financial statements furnished
to Administrative Agent and each Lender for the fiscal year ended
immediately prior to the Closing Date, or from the condition of any
Borrower most recently disclosed to Administrative Agent or any Lender in
any other manner.
7.2. Remedies.
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7.2.1. Acceleration, Termination and Pursuit of Collateral. At
any time during the existence of any Event of Default, at the election of
Required Lenders but with notice thereof to a Borrower (unless an Event of
Default described in Section 7.1.10 has occurred, in which case
acceleration will occur automatically with respect to the entire
indebtedness and without any notice), then Lenders (a) may terminate any or
all Commitments and/or Facilities, and/or (b) may accelerate the Term Loan
Maturity Date, and/or (c) may declare all or any portion of the
indebtedness of any or all Borrowers to Lenders (hereunder or otherwise,
and including all principal, interest, fees, expenses and indemnities
hereunder) to be immediately due and payable. At any time during the
existence of any Event of Default, Xxxxxxx and Administrative Agent will
also have the immediate right to enforce and realize upon any collateral
security granted under any Loan Document in any manner or order that
Required Lenders or Administrative Agent (at the direction of Required
Lenders) deems expedient without regard to any equitable principles of
marshaling or otherwise.
7.2.2. Other Remedies. In addition to the rights and remedies
expressly granted in the Loan Documents, each Lender and Administrative
Agent also will have all other legal and equitable rights and remedies
granted by or available under all applicable law (including the "self help"
and other rights of a secured party under the UCC), and all rights and
remedies will be cumulative in nature.
7.2.3. Special Regulatory-Related Remedies.
-----------------------------------
a. Each Borrower and Administrative Agent hereby acknowledge
their intent that, during the existence of an Event of Default, to the
fullest extent permitted by applicable law and governmental policy
(including the rules, regulations and policies of the FCC and each State
PUC), Administrative Agent will have all rights necessary or desirable to
obtain, use and/or sell the assets and operations of each Borrower and the
other Collateral, and to exercise all remedies available to Administrative
Agent and each Lender under the Loan Documents, the Uniform Commercial Code
or other applicable law. Each Borrower and Administrative Agent agree that,
if any applicable law or governmental policy changes subsequent to the date
hereof that affects in any manner Administrative Agent's rights of access
to, or use or sale of, any Borrower's assets or other Collateral (including
Authorizations) or the procedures necessary to enable Administrative Agent
to obtain such rights of access, use or sale during an Event of Default,
then Administrative Agent and each Borrower will amend the Loan Documents
(in such manner as Administrative Agent reasonably requests) in order to
provide Administrative Agent with all such rights to the greatest extent
possible consistent with then-applicable law and governmental policy.
b. Each Borrower hereby agrees (during the existence of a
Default) to take any actions that Administrative Agent may reasonably
request in order to enable Administrative Agent to receive the full rights
and benefits granted to Administrative Agent and each Lender by the Loan
Documents. Without limiting the generality of the foregoing, at any time
during the existence of an Event of Default, at the cost and expense of
Borrowers (jointly and severally), each Borrower will use its best efforts
to assist and cooperate in obtaining all approvals (including all FCC and
State PUC approvals) which are then required by applicable law or contract
for or in connection with any action or transaction contemplated by the
Loan Documents or the Uniform Commercial Code. Each Borrower further
agrees, upon Administrative Agent's request and at the expense of Xxxxxxxxx
(jointly and severally), at any time during the existence of an Event of
Default, to prepare, sign, file and diligently prosecute (and to use its
best efforts to cause the preparation, execution, filing and diligent
prosecution by others) with the FCC the assignor's or transferor's portion
of any applications for consent to the assignment of Authorizations or
transfer of control thereof necessary or appropriate under the rules of
each Official Body for approval of any sale or transfer of any Collateral
or any Authorization pursuant to the exercise of Administrative Agent's and
Xxxxxxx' remedies under the Loan Documents. Each Borrower further agrees
that, during the existence of a Default, each Borrower will assist and
cooperate with Administrative Agent and each Lender (and will use its best
efforts to cause others to assist and cooperate with Administrative Agent
and each Lender) to ensure that each Borrower continues (a) to operate in
the normal course of business, and (b) to fulfill all of its legal,
regulatory and contractual obligations, and (c) to otherwise be properly
and professionally managed. At Administrative Agent's request and the
expense of Xxxxxxxxx (jointly and severally), at any time during the
existence of an Event of Default, such assistance and cooperation may
include the employment of (and, to the maximum extent not prohibited by the
rules, regulations and orders of the FCC, delegation of appropriate
management authority to) one or more qualified and independent consultants
and professional managers acceptable to Administrative Agent to assist in
the interim operations of Borrowers; all of which each Borrower hereby
agrees not to challenge. Each Borrower further consents to (and agrees that
it will not challenge), at any time during the existence of an Event of
Default, the transfer of control or assignment of Authorizations and other
assets to a receiver, trustee, transferee, or similar official or to any
purchaser of the Collateral pursuant to any public or private sale,
judicial sale, foreclosure or exercise of other remedies available to
Administrative Agent or any Lender as permitted by applicable law.
c. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN ANY
LOAN DOCUMENT, neither Administrative Agent nor any Lender nor any Borrower
will take any action pursuant to the Loan Documents that would constitute
or result in any assignment of an Authorization or any transfer of control
of any Borrower if such assignment of Authorization or transfer of control
would require under then existing law (including the written rules and
regulations promulgated by the FCC) the prior approval of the FCC or any
State PUC, unless such approval has been obtained (as applicable) from such
State PUC (to the extent failure to obtain such approval by Administrative
Agent could reasonably be expected to have or cause a Material Adverse
Effect) or from the FCC. Without limiting the generality of the foregoing,
Administrative Agent and each Lender each specifically agrees that (a)
voting rights with respect to the pledged equity interests of each Borrower
will remain with the holders of such voting rights during the existence of
an Event of Default unless and until any required prior approvals to the
transfer of such voting rights have been obtained (as applicable) from such
State PUC (to the extent failure to obtain such approval by Administrative
Agent could reasonably be expected to have or cause a Material Adverse
Effect) or from the FCC, and (b) during the existence of any Event of
Default and foreclosure upon the Collateral by Administrative Agent, there
will be either a private or public sale of the Collateral, and (c) prior to
the exercise of voting rights by the purchaser at any such sale, any
consent of any State PUC or the FCC required pursuant to any State
Communications Act (to the extent failure to obtain such consent could
reasonably be expected to have or cause a Material Adverse Effect) or the
Federal Communications Act (respectively) will be obtained.
ARTICLE 8: ADMINISTRATIVE AGENT AND RELATIONSHIP AMONG LENDERS
8.1. Appointment, Authorization and Grant of Authority. Each Lender
hereby irrevocably designates and appoints MCG as the Administrative Agent
of such Lender to act as specified in this Agreement and the other Loan
Documents, and each such Lender hereby irrevocably authorizes MCG (in its
capacity as Administrative Agent) to take actions on behalf of such Lender,
to exercise such powers and to perform such other duties as are expressly
delegated to the Administrative Agent by the terms of this Agreement and
the other Loan Documents, together with all such other powers and authority
as are reasonably incidental thereto. Without limiting the generality of
the foregoing, the Administrative Agent (on behalf of each Lender) is
authorized (a) to execute each Loan Document (other than this Agreement,
but including, without limitation, all financing statements, continuation
statements and other collateral agreements and documents) for and on behalf
of each Lender, and (b) to accept each Loan Document and all other
agreements, documents, instruments, certificates and opinions reasonably
required to implement the intent of the parties to this Agreement, and (c)
to file and record all financing statements, continuation statements and
other collateral agreements and documents, and (d) to receive and deliver
communications and notifications to Lenders and to Borrowers, and (e) to
receive and distribute payments and Advances between Xxxxxxx and Borrowers.
The duties and responsibilities of the Administrative Agent shall be
ministerial and administrative in nature. Notwithstanding any provision to
the contrary in any Loan Document, the Administrative Agent (a) shall not
have any duties or responsibilities other than those expressly set forth in
the Loan Documents (which duties and responsibilities shall be subject to
the limitations and qualifications set forth in this Article), and (b)
shall not have any fiduciary relationship with any Lender; and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into the Loan Documents or otherwise exist against the
Administrative Agent.
8.2. Acceptance of Appointment. XXX hereby accepts such appointment
and agrees to act as such Administrative Agent upon the express terms and
conditions (but subject to the limitations and qualifications) set forth in
this Article.
8.3. Administrative Agent's Relationship with Borrowers. The
provisions of this Article are solely for the benefit of the Administrative
Agent and Lenders, and no Borrower shall have any rights as a third party
beneficiary (or otherwise) under this Article. In performing its functions
and duties under the Loan Documents, the Administrative Agent shall act
solely as an agent of the Lenders, and the Administrative Agent does not
assume (and shall not be deemed to have assumed) any obligation or
relationship of agency or trust with or for any Borrower.
8.4. Non-Reliance on Administrative Agent and Other Lenders. Each
Lender expressly acknowledges and agrees (a) that the Administrative Agent
(and its directors, officers, employees, agents, attorneys-in-fact and
Affiliates) have not made any representations or warranties to such Lender
and (b) that no act by the Administrative Agent hereinafter taken
(including, without limitation, any review of the affairs of any Borrower
or other Obligor) shall be deemed to constitute any representation or
warranty by the Administrative Agent to any Lender. Each Lender represents
to the Administrative Agent that it (independently and without any reliance
upon the Administrative Agent or any other Lender, and based upon such
documents and information as it has deemed necessary or appropriate) has
made its own appraisal, investigation and credit analysis of the business,
assets, operations, properties, financial and other condition, prospects
and creditworthiness of each Borrower and each other Obligor and has made
its own decision to make its Loans hereunder and to enter into this
Agreement. Each Lender also covenants and represents that it (independently
and without any reliance upon the Administrative Agent or any other Lender,
and based upon such documents and information as it shall deem necessary or
appropriate) will continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Agreement, and will
continue to make such investigations as it deems necessary or appropriate
to inform itself as to the business, assets, operations, properties,
financial and other condition, prospects and creditworthiness of each
Borrower and each other Obligor. Except as otherwise expressly provided in
the Loan Documents, the Administrative Agent shall not have any duty or
responsibility (a) to keep any Lender informed as to the performance or
observance by any Borrower or any other Obligor of its obligations under
the Loan Documents, or (b) to inspect the books or properties of any
Borrower or any other Obligor, or (c) to provide any Lender with any credit
or other information concerning the business, operations, assets,
properties, financial and other condition, prospects or creditworthiness of
any Borrower or any other Obligor which may come into the possession of the
Administrative Agent (or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates). The Administrative Agent will make
reasonable efforts to furnish to the Lenders material information
concerning Borrowers of which the Administrative Agent has actual
knowledge; however, in the absence of gross negligence, willful misconduct
or fraud, the Administrative Agent shall not be liable to any Lender for
any failure to relay or furnish to such Lender any such information.
8.5. Reliance by Administrative Agent. The Administrative Agent shall
be entitled to rely and act (and shall be fully protected in relying and
acting) upon any note, writing, resolution, instrument, report, notice,
consent, certificate, affidavit, letter, request, electronic transmission
or any other message, statement, instruction, notice, order or other
writing, conversation or communication believed by Administrative Agent in
good faith to be genuine and correct and to have been signed, sent or made
by the proper Person. The Administrative Agent shall not be bound to
ascertain or inquire as to the satisfaction, performance or observance of
any of the terms, provisions, covenants or conditions of or the accuracy of
any statements or representations in any Loan Document by any Borrower or
any other Obligor. The Administrative Agent may deem and treat the stated
payee of any Note as the holder thereof for all purposes under the Loan
Documents unless and until Administrative Agent has received and accepted
an assignment and assumption agreement relating thereto in form and
substance acceptable to the Administrative Agent.
8.6. Delegation of Duties; Additional Reliance by Administrative
Agent. The Administrative Agent may consult with, employ and perform any of
its duties under the Loan Document by or through agents, attorneys-in-fact,
legal counsel, independent public accountants and other experts. The
Administrative Agent shall not be responsible for the negligence or
misconduct of any such Persons selected by Administrative Agent with
reasonable care, and the Administrative Agent shall be fully protected in
any action or inaction taken by it in good faith in reliance upon or in
accordance with the advice or statements of legal counsel (including,
without limitation, counsel to Borrowers), independent accountants and
other experts selected by Administrative Agent.
8.7. Acting on Instructions of Lenders. The Administrative Agent shall
be entitled to act or refrain from acting (and shall be fully protected in
acting or refraining from acting) under the Loan Documents in accordance
with a written request of or written instructions from the Required
Lenders. The Administrative Agent shall also be entitled to refrain from
acting (and shall be fully protected in refraining from acting) under the
Loan Documents unless Administrative Agent first (a) receives such advice
or concurrence of the Required Lenders as Administrative Agent deems
appropriate or (b) is indemnified to its satisfaction by the Lenders
against any and all liability and expense which it may incur by reason of
taking or continuing to take any such action. Except as otherwise expressly
stated in the Loan Documents, any requests or instructions by the Required
Lenders (and any action or inaction by Administrative Agent pursuant
thereto) shall be binding upon all the Lenders.
8.8. Actions Upon Occurrence of Default or Event of Default. Each
Lender will use its best efforts to notify the Administrative Agent
immediately in writing upon becoming aware of the occurrence of any Default
or Event of Default. The Administrative Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender
or a Borrower referring to this Agreement, describing such Default or Event
of Default, and stating that such notice is a "notice of default". If the
Administrative Agent receives any such notice of default, then the
Administrative Agent shall use its best efforts to give notice thereof to
each Lender as soon as reasonably practical. Upon the occurrence of any
Default or Event of Default, the Lenders shall promptly consult with one
another in an attempt to agree upon a mutually acceptable course of
conduct. In the absence of unanimous agreement among the Lenders as to the
appropriate course of conduct, the Administrative Agent shall exercise
rights and take such other action on behalf of all Lenders with respect to
such Default or Event of Default as directed by the Required Lenders.
Unless and until the Administrative Agent shall have received such
directions from the Lenders (or, as applicable, the Required Lenders), the
Administrative Agent may take (but shall not be obligated to take) such
action (or may refrain from taking such action) with respect to such
Default or Event of Default as Administrative Agent shall deem advisable in
the best interest of the Lenders.
8.9. Administrative Agent's Rights as Lender in Individual Capacity.
The Administrative Agent (and its Affiliates) may make loans to, may have
cash management agreements with, may accept deposits from, may issue letter
of credit on behalf of, and may otherwise generally engage (and continue to
engage) in any kind of business with any Borrower or other Obligor as
though the Administrative Agent were not the Administrative Agent under the
Loan Documents. With respect to any Loans made by Administrative Agent as a
Lender hereunder and all obligations owing to it as a Lender under the Loan
Documents, the Administrative Agent shall have the same rights, powers
duties and obligations under the Loan Documents as any other Lender and may
exercise such rights, powers, duties and obligations as though it were not
the Administrative Agent hereunder. To the extent that the Administrative
Agent is a Lender hereunder, the terms "Lender", "Lenders" and "Required
Lenders" shall include the Administrative Agent in its individual capacity.
8.10. Advances By Administrative Agent. Unless the Administrative
Agent has been notified in writing by a Lender prior to the Settlement Date
for any Advance or Loan that such Lender will not make the amount
constituting its Pro Rata share of such Advance or Loan available to the
Administrative Agent on or prior to such applicable Settlement Date, then
the Administrative Agent may assume (but shall not be required to assume)
that such Lender will make such amount available to the Administrative
Agent in immediately available funds on or before such Settlement Date, and
in reliance upon such assumption, the Administrative Agent may make
available to Borrowers a corresponding amount on behalf of such Lender. If
the amount of such Pro Rata share is not made available to the
Administrative Agent in immediately available funds by a Lender until after
the applicable Settlement Date, then such Lender shall pay to the
Administrative Agent on demand and in immediately available funds an amount
equal to the result of the following equation (which shall be in addition
to the amount of such Xxxxxx's Pro Rata share of such Advance or Loan): the
product of (a) the average (computed for the period determined under clause
(c) below) of the weighted average interest rate for Federal Funds as
determined by the Administrative Agent during each day included in such
period, multiplied by (b) the amount of such Lender's Pro Rata share of
such Advance or Loan, multiplied by (c) a fraction (i) the numerator of
which is the number of days that elapsed from and including such Settlement
Date to and including the date on which such Xxxxxx's Pro Rata share of
such Advance or Loan is actually received by the Administrative Agent in
immediately available funds and (ii) the denominator of which is 360. A
statement from the Administrative Agent submitted to any Lender with
respect to any amounts owing under this Section shall be conclusive (absent
manifest error) as to the amount owed to the Administrative Agent by such
Xxxxxx. If such Xxxxxx's Pro Rata share is not actually received by the
Administrative Agent in immediately available funds within three (3)
Business Days after the applicable Settlement Date for such Advance or
Loan, then the Administrative Agent shall be entitled to recover from such
Lender, on demand, the amount of such Pro Rata share with interest thereon
for the entire such period since such Settlement Date at the highest
interest rate per annum then applicable under the Facilities.
8.11. Payments to Lenders. Promptly after receipt in immediately
available funds from Borrowers of any payment of principal, interest or any
fees or other amounts due to any Lender under the Loan Documents, the
Administrative Agent shall distribute to each Lender that Xxxxxx's Pro Rata
share of such funds so received.
8.12. Pro-Rata Sharing of Setoff Proceeds. Any sums obtained by the
Administrative Agent or any Lender from any Borrower or other Obligor by
reason of any exercise of a right of setoff or banker's lien shall be
shared Pro Rata among Lenders. Notwithstanding the foregoing, neither the
Administrative Agent nor any Lender shall be required to so share with any
other Lender collections from any Borrower or other Obligor specifically
relating to (or the proceeds of any item of collateral that is not subject
to the Loan Documents) any other indebtedness (i.e. other than indebtedness
under the Loan Documents) of such Borrower or other Obligor to the
Administrative Agent or such Lender.
8.13. Limitation on Liability of Administrative Agent. The
Administrative Agent (and its directors, officers, employees, agents,
attorneys-in-fact and Affiliates) shall not be liable to any Lender for any
action taken or inaction by Administrative Agent or such Person under or in
connection with any Loan Document, except to the extent of foreseeable
actual loses resulting directly and exclusively from Administrative Agent's
own gross negligence, willful misconduct or fraud. Without limiting the
generality of the foregoing, the Administrative Agent (and its directors,
officers, employees, agents, attorneys-in-fact and Affiliates) shall not be
liable, responsible or have any duty with respect to any of the following:
(a) the genuineness, execution, authorization, validity, effectiveness,
enforceability, collectibility, value or sufficiency of any Loan Document,
or (b) the collectibility of any amount owed by any Obligor to any Lender,
or (c) the accuracy, completeness or truthfulness of any recital,
statement, representation or warranty made to the Administrative Agent or
to any Lender in connection with any Loan Document or other certificate,
affidavit, report, opinion, financial statement, document or instrument
executed or furnished pursuant to or in connection with any Loan Document,
or (d) any failure of any Person to receive any notice or communication due
such Person under any Loan Document or applicable law, or (e) the assets,
liabilities, financial condition, results of operations, business,
prospects or creditworthiness of any Borrower or any other Obligor, or (f)
ascertaining or inquiring into the satisfaction, observance or performance
of any condition, covenant or agreement in any Loan Document (including,
without limitation, the use of proceeds by any Borrower), or (g) the
inspection of any books, records or properties of any Obligor, or (h) the
existence or possible existence of any Default or Event of Default.
8.14. Indemnification. To the extent that Borrowers do not actually
reimburse, indemnify or hold harmless Administrative Agent (in accordance
with Section 10.1 hereof), then each Lender hereby agrees on a Pro Rata
basis to indemnify and hold harmless the Administrative Agent (and its
directors, officers, employees, agents, attorneys-in-fact and Affiliates)
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, reasonable expenses or
disbursements of any kind whatsoever that at any time (including, without
limitation, at any time following the payment of the Obligations of
Borrowers hereunder) may be imposed upon, incurred by or asserted against
the Administrative Agent (or its directors, officers, employees, agents,
attorneys-in-fact or Affiliates) in its capacity as such in any way
relating to or arising out of any Loan Document, or the transactions
contemplated hereby or any action or inaction taken by the Administrative
Agent under or in connection with any of the foregoing; provided that no
Lender shall be liable to the Administrative Agent (or its directors,
officers, employees, agents, attorneys-in-fact or Affiliates) for the
payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements
resulting directly and exclusively from the gross negligence, willful
misconduct or fraud of the Administrative Agent. If any indemnity furnished
to the Administrative Agent (or its directors, officers, employees, agents,
attorneys-in-fact or Affiliates) for any purpose (in the opinion of the
Administrative Agent) shall be insufficient or become impaired, then the
Administrative Agent may require additional indemnity and cease (or not
commence) to do the acts indemnified against until such additional
indemnity is furnished to the satisfaction of the Administrative Agent. The
agreement in this Section shall survive the payment of all Advances, Loans,
fees and other Obligations of each Borrower arising hereunder.
8.15. Resignation; Successor Administrative Agent. The Administrative
Agent at any time may resign as the Administrative Agent under the Loan
Documents by giving the Lenders and Borrowers written notice thereof at
least 10 Business Days prior to the effective date of such resignation.
During such notice period, the Required Lenders shall appoint (from among
the Lenders) a successor Administrative Agent for the Lenders, subject to
the consent of each Lender (such approval or consent, as the case may be,
not to be unreasonably withheld, delayed or conditioned) and concurrent
notice to the Borrowers. Upon acceptance of such appointment by such
successor agent, (a) such successor agent shall succeed to the rights,
powers and duties of the Administrative Agent, and (b) the term
"Administrative Agent" shall include such successor agent effective upon
its appointment, and (c) the resigning Administrative Agent's rights,
powers and duties as the Administrative Agent shall be terminated, all
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to the Loan Documents.
Notwithstanding the foregoing, after the effectiveness of the resigning
Administrative Agent's resignation hereunder as the Administrative Agent,
the provisions of this Article shall continue to inure to its benefit as to
any actions taken or omitted to be taken by it while it was Administrative
Agent under the Loan Documents.
ARTICLE 9: DEFINITIONS AND RULES OF CONSTRUCTION
9.1. Definitions. When used in this Agreement, the following terms
shall have the respective meanings set forth below:
9.1.1. "Account" means, at any relevant time, the designated or
principal deposit account of Borrowers at Administrative Agent for purposes
of effecting transactions hereunder.
9.1.2. "Additional Acquisitions" means the acquisition by one or
more of the Borrowers of substantially all the assets or 100% of the stock
of each of the entities listed on Schedule 5.7. ---
9.1.3. "Adjusted LIBO Rate" means the rate per annum (rounded
upwards, if necessary, to the next 1/100th of 1%) determined by
Administrative Agent pursuant to the following formula:
Adjusted LIBO Rate = LIBO Rate
-----------------------
1 - Reserve Percentage
For purposes of this calculation, "LIBO Rate" means the London Interbank
Offered Rate per annum (determined by Administrative Agent) two (2)
Business Days prior to the first day of any Interest Period for which the
Adjusted LIBO Rate is applicable as published by Reuters Monitor Money Rate
Service and displayed on the LIBO page as the "Libo Rate" (or, if Reuters
is not available, then as published by Bloomberg or Dow Xxxxx-Telerate and
displayed on page 3750 as the BBA LIBOR) (or, in any such instance, as
published by such other service or displayed on such other page as may
replace such service or page for the purpose of displaying rates or prices
comparable to the designated rate) for the offering of dollar deposits by
leading banks in the London interbank market for a period of approximately
3 months and in an amount approximately equal to the amount outstanding
hereunder to which such LIBO Rate will be applicable. If more than one such
rate is displayed on such page or its replacement, then the LIBO Rate will
be the arithmetic mean of such displayed rates. If the first day of the
applicable Interest Period is not a Business Day, then the applicable LIBO
Rate will be the rate in effect on the immediately preceding Business Day.
For purposes of this calculation, "Reserve Percentage" means that
percentage (expressed as a decimal) prescribed by the FRB (or any other
governmental or administrative agency or funding source to which
Administrative Agent is subject) for determining the reserve requirements
(including any basic, supplemental, marginal or emergency reserves) for
deposits of U.S. Dollars with maturities of comparable duration in a
non-U.S. or an international banking office.
9.1.4. "Administrative Agent" means MCG Finance Corporation or
any successor, assignee, pledgee or other transferee of Administrative
Agent.
9.1.5. "Advance" means any advance of funds under any Facility.
9.1.6. "Advance Request" has the meaning set forth in Section
1.4.1.
9.1.7. "Affiliate" of any Person means any other Person that
directly or indirectly controls, is controlled by or is under direct or
indirect common control with such Person. A Person shall be deemed to
"control" another Person if such first Person directly or indirectly
possesses the power to direct (or to cause the direction of or to
materially influence) the management and policies of the second Person,
whether through the ownership of voting securities, by contract or
otherwise. Without limiting the generality of the foregoing, each of the
following Persons will be deemed to be an Affiliate of a Person: (a) each
Person who owns or controls 5% or more of any class or series of any equity
interest of such Person, and (b) each member, manager, partner, director
and/or senior executive officer of such Person or any Affiliate thereof,
and (c) any family member or other relative of such Person or any Affiliate
thereof, and (d) any trust of which any Person or Affiliate thereof is
either a trustee or beneficiary. Notwithstanding the foregoing, neither any
Lender nor Administrative Agent shall be deemed to be an Affiliate of any
Obligor.
9.1.8. "Agreement" means this Credit Facility Agreement and all
the exhibits and schedules hereto, all as may be amended and otherwise
modified from time to time hereafter.
9.1.9. "Authorized Officer" means any officer, employee or
representative of such organization who is expressly designated as such or
is otherwise authorized to borrow funds hereunder or, as appropriate, to
sign loan documents and/or deliver certificates on behalf of such
organization pursuant to the provisions of such organization's most recent
resolution on file with Administrative Agent.
9.1.10. "Authorization" means any License or other governmental
permit, certificate and/or approval issued by or any Tariff filed with any
Official Body.
9.1.11. "Available Credit Portion" means that portion of the Term
Loan Commitment that is generally available in the ordinary course for
borrowing at any time under the Term Loan Facility, as such amount is
determined in accordance with Section 1.3.
9.1.12. "Borrower" means, individually and collectively, the
following:
a. XxxxxxxXxxxxx.xxx, Inc., a Delaware corporation,
having its principal and chief executive office at
the address specified in the Notice Section
hereof, or any successor or authorized assignee
thereof, and
b. Global 2000 Communications, Inc., a New York
corporation, having its principal and chief
executive office at the address specified in
Schedule 9.1.12, or any successor or authorized
assignee thereof, and
c. AlbanyNet, Inc., a New York corporation, having
its principal and chief executive office at the
address specified in Schedule 9.1.12, or any
successor or authorized assignee thereof, and
d. WebWay Internet, Inc., a New York corporation,
having its principal and chief executive office at
the address specified in Schedule 9.1.12, or any
successor or authorized assignee thereof, and
e. Ascent Networking, Inc., a New York corporation,
having its principal and chief executive office at
the address specified in Schedule 9.1.12, or any
successor or authorized assignee thereof, and
f. Cyberzone, Inc., a Connecticut corporation, having
its principal and chief executive office at the
address specified in Schedule 9.1.12, or any
successor or authorized assignee thereof, and
x. Xxxxxxxx Software, Inc., a Connecticut
corporation, having its principal and chief
executive office at the address specified in
Schedule 9.1.12, or any successor or authorized
assignee thereof, and
h. NECAnet, Inc., a Connecticut corporation, having
its principal and chief executive office at the
address specified in Schedule 9.1.12, or any
successor or authorized assignee thereof, and
i. Prime Communications Systems, Inc., a New York
corporation, having its principal and chief
executive office at the address specified in
Schedule 9.1.12, or any successor or authorized
assignee thereof, and
j. Infoboard, Inc., a Massachusetts corporation,
having its principal and chief executive office at
the address specified in Schedule 9.1.12, or any
successor or authorized assignee thereof, and
x. Xxxx Internet Services, Inc., a New York
corporation, having its principal and chief
executive office at the address specified in
Schedule 9.1.12, or any successor or authorized
assignee thereof, and
l. Ulsternet, Inc., a New York corporation, having
its principal and chief executive office at the
address specified in Schedule 9.1.12, or any
successor or authorized assignee thereof, and
m. BOL Acquisition Co. III, Inc., a New York
corporation, having its principal and chief
executive office at the address specified in
Schedule 9.1.12, or any successor or authorized
assignee thereof, and
n. BOL Acquisition Co. II, Inc., a New York
corporation, having its principal and chief
executive office at the address specified in
Schedule 9.1.12, or any successor or authorized
assignee thereof, and
o. BOL Acquisition Co. VIII, Inc., a Connecticut
corporation, having its principal and chief
executive office at the address specified in
Schedule 9.1.12, or any successor or authorized
assignee thereof, and
p. Any other entity subsequently added hereto as a
Borrower hereunder, or any successor or authorized
assignee thereof.
9.1.13. "Business Day" means any day that is not a Saturday, a
Sunday or a day on which banks under the laws of the Commonwealth of
Virginia (or, with respect to certain LIBO Rate matters, banks in London,
England) are authorized or required to be closed.
9.1.14. "Capital Expenditures" means expenditures (a) for any
fixed assets or improvements, replacements, substitutions or additions
thereto that have a useful life of more than one (1) year, including direct
or indirect acquisition of such assets or (b) for any Capital Leases.
9.1.15. "Capital Leases" means capital leases and subleases as
defined in the Financial Accounting Standards Board Statement of Financial
Accounting Standards No. 13 dated November 1976 (as amended and updated
from time to time).
9.1.16. "Closing Date" means the date on which all conditions
precedent to the effectiveness of this Agreement under Section 2.1 have
been satisfied or waived by Xxxxxxx.
9.1.17. "Code" means the Internal Revenue Code of 1986, as
amended.
9.1.18. "Collateral" means the collateral security committed to
Administrative Agent under the Collateral Security Documents executed by
any Borrower or any other Obligor in favor of Administrative Agent pursuant
to this Agreement from time to time and/or pursuant to all similar or
related documents and agreements from time to time, all as amended from
time to time.
9.1.19. "Collateral Security Documents" means, individually and
collectively, (a) the Security Agreements and the financing statements
filed pursuant thereto, and (b) the Pledge and Security Agreements, and (c)
any additional documents guaranteeing indebtedness, assuring performance of
obligations, subordinating indebtedness, or granting security or Collateral
to Administrative Agent hereunder, all as amended from time to time.
9.1.20. "Commitment" means any commitment for credit pursuant to
a Facility established hereunder.
9.1.21. "Commitment Percentage" means, with respect to each
Lender, that portion of the total Commitments as to which such Lender is
obligated.
9.1.22. "Default" means any event or circumstance that with the
giving of notice or the passage of time would constitute an Event of
Default. The term Default shall include any Event of Default arising
therefrom.
9.1.23. "Dollar" or "$" means U.S. dollars.
9.1.24. "EBITDA" means, at the time of any determination, the sum
of the following items for Borrowers during the relevant fiscal period:
a. Net income from continuing operations (on a
consolidated basis) during such period -- i.e.,
excluding extraordinary gains and income items and
the cumulative effect of accounting changes, and
income associated with transactions with
Affiliates for which payment is received in a form
other than cash or cash equivalents -- determined
in accordance with GAAP, and
b. Plus Interest Expense during such period, but
subtract interest income accrued during such
period, and
c. Plus federal and state income taxes paid or
required to be paid during such period and, and
d. Plus depreciation permitted under GAAP during such
period, and
e. Plus amortization expense permitted under GAAP
during such period.
For purposes of this calculation, interest shall include interest accrued
under Capital Leases, determined in accordance with GAAP.
9.1.25. "Environmental Control Statutes" means all federal, state
and local laws, rules, ordinances and regulations (as implemented and as
interpreted) governing the control, removal, storage, transportation,
spill, release or discharge of hazardous or toxic wastes, substances and
petroleum products, including as provided in the provisions of (a) the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended by the Superfund Amendment and Reauthorization Act of
1986, and (b) the Solid Waste Disposal Act, and (c) the Clean Water Act,
and (d) the Clean Air Act, and (e) the Hazardous Materials Transportation
Act, and (f) the Resource Conservation and Recovery Act of 1976, and (g)
the Federal Water Pollution Control Act Amendments of 1972, and (h) the
rules, regulations and ordinances of the EPA, and any departments of health
services, regional water quality control boards, state water resources
control boards, and/or cities in which any of such Borrower's assets are
located.
9.1.26. "EPA" means the United States Environmental Protection
Agency or any other entity that succeeds to its responsibilities and
powers.
9.1.27. "ERISA" means the Employee Retirement Income Security Act
of 1974, as amended, and as implemented and interpreted.
9.1.28. "ERISA Affiliate" means any company, whether or not
incorporated, which is considered a single employer with Borrower under
Titles I, II and IV of ERISA.
9.1.29. "Escrow Account" means the escrow account created
pursuant to the Escrow Agreement.
9.1.30. "Escrow Agent" means Xxxxx Bank, N.A. or any successor or
assignee.
9.1.31. "Escrow Agreement" means the escrow agreement among
Borrowers, Escrow Agent and Administrative Agent pursuant to which
$10,000,000 is placed in escrow on the Closing Date.
9.1.32. "Event of Default" means each of the events described in
Section 7.1.
9.1.33. "Facility" means any credit facility established under
Article 1.
9.1.34. "FCC" means the Federal Communications Commission or any
other entity or agency that succeeds to its responsibilities and powers.
9.1.35. "Federal Communications Act" means the Communications Act
of 1934, as amended, and as implemented by the FCC and interpreted by the
FCC or any court of competent jurisdiction.
9.1.36. "Final Term Draw Date" has the meaning set forth in
Section 1.1.1, as may be extended from time to time in Lenders' sole and
absolute discretion.
9.1.37. "Fixed Charges" means, at the time of any determination,
the sum of the following items (without duplication) for Borrowers during
the relevant four consecutive fiscal quarter period:
a. The amount of principal required to be paid under this
Agreement during such period, and
b. Plus the amount of principal paid or required to be
paid and mandatory commitment reductions on other
Funded Debt (i.e., Funded Debt other than under this
Agreement) during such period, and
c. Plus Interest Expense during such period, and
d. Plus the amount of cash Capital Expenditures during
such period.
9.1.38. "FRB" means the Board of Governors of the Federal Reserve
System or any other entity or agency that succeeds to its responsibilities
and powers.
9.1.39. "Funded Debt" means, at the time of any determination,
the aggregate principal amount of indebtedness of all Borrowers (on a
consolidated basis) for the following:
a. Borrowed money (including the indebtedness under the
Loan Documents, but not including trade indebtedness
permitted under Section 5.2.b), and
b. Installment purchases of real or personal property, and
c. Subordinated Indebtedness, and
d. Capital Leases, and
e. Deferred purchase price in connection with
acquisitions, and
f. Reimbursement obligations under letters of credit, and
g. Any indebtedness evidenced by a promissory note, and
h. Guaranties of indebtedness and obligations that would
constitute Funded Debt hereunder if the primary obligor
thereof were a Borrower, and
i. Indebtedness otherwise required to be included as part
of "Funded Debt" under Section 5.2.
9.1.40. "GAAP" means generally accepted accounting principles
applied on a consistent basis set forth in the Opinions of the Accounting
Principles Board of the American Institute of Certified Public Accountants
and/or in statements of the Financial Accounting Standards Board and/or in
such other statements by such other entity as Administrative Agent may
reasonably approve, which are applicable in the circumstances as of the
date in question, and the requirement that such principles be applied on a
consistent basis shall mean that the accounting principles observed in a
current period are comparable in all material respects to those applied in
preceding periods.
9.1.41. "Hazardous Materials" includes (a) any "hazardous waste"
as defined by the Resource Conservation and Recovery Act of 1976 (42 U.S.C.
ss. 6901 et seq.), as amended from time to time, and regulations
promulgated thereunder; or (b) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980 (42 U.S.C. ss. 9601 et seq.), as amended from time to time, and
regulations promulgated thereunder; or (c) any other substance the use or
presence of which on, in, under or above any real property ever owned,
controlled or used by Borrower is similarly regulated or prohibited by any
federal, state or local law, rule, ordinance, regulation or decree of any
court or governmental authority as a hazardous material.
9.1.42. "Interest Coverage Ratio" means, at any time such ratio
is being computed, the ratio of "Pro Forma OCF" to "Interest Expense" (for
the immediately preceding four fiscal quarters).
9.1.43. "Interest Expense" means, at the time of any
determination, the amount of interest and other finance charges of
Borrowers (on a consolidated basis) required to be charged as an expense
under GAAP during the immediately preceding four consecutive fiscal quarter
period (including the fees under Section 1.7 and any other such charges
with respect to any Funded Debt). For purposes of this calculation,
interest includes interest accrued under Capital Leases.
9.1.44. "Interest Period" means (a) with respect to the Prime
Rate, a period of one (1) Business Day, and (b) with respect to the
Adjusted LIBO Rate, a period of 3 months duration commencing initially on
the date of the relevant Advance and ending 3 months thereafter and (after
such initial Interest Period) commencing on the day immediately following
the last day of the preceding Interest Period and ending on the
corresponding day 3 months thereafter.
9.1.45. "Lender" means, individually and collectively, the
following:
a. MCG Finance Corporation or any successor,
assignee, participant, pledgee or other transferee
of such Xxxxxx xxxxxxxxx, and ---
b. Any other entity subsequently added hereto as a
Lender hereunder, or any successor, assignee,
participant or other transferee thereof.
9.1.46. "Leverage Ratio" means, at any time such ratio is being
computed, the ratio of "Funded Debt" to "OCF" (for the immediately
preceding four fiscal quarters).
9.1.47. "LIBO Rate" has the meaning set forth in the definition
of "Adjusted LIBO Rate".
9.1.48. "License" means any authorization, construction or other
permit, consent, franchise, ordinance, registration, certificate, license,
call sign, frequency designation, agreement or other right filed with,
granted by, issued by or entered into with any Official Body.
9.1.49. "Lien" means any security interest, mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or otherwise), reversionary or reclamation interest, charge
against or interest in property to secure payment of a debt or performance
of an obligation or other priority or preferential arrangement of any kind
or nature whatsoever.
9.1.50. "LLC" means a limited liability company.
9.1.51. "Loan" means any loan or Advance of funds under any
Facility as well as any other credit extended by Administrative Agent or
any Lender to any Borrower under this Agreement.
9.1.52. "Loan Documents" means this Agreement, any Notes, the
Collateral Security Documents and any other documents, agreements and
certificates entered into or delivered in connection herewith or therewith
or pursuant hereto or thereto, all as may be amended, modified and
supplemented from time to time.
9.1.53. "Local Authorities" means, individually and collectively,
the state and local governmental authorities that govern the activities of
any Borrower.
9.1.54. "Margin Regulation" has the meaning set forth in Section
3.17.
9.1.55. "Margin Stock" has the meaning set forth in Section 3.17.
9.1.56. "Material Adverse Change" means any change that has or
causes or could reasonably be expected to have or cause a Material Adverse
Effect.
9.1.57. "Material Adverse Effect" means, relative to any
occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), a
material adverse change to, or, as the case may be, a materially adverse
effect on:
a. The business, assets, revenues, financial
condition, operations, Collateral or prospects of
any Borrower or other Obligor; or
b. The ability of any Borrower to perform any of its
payment obligations when due or to perform any
other material obligations under any Loan
Document; or
c. Any right, remedy or benefit of Administrative
Agent or any Lender under any Loan Document.
9.1.58. "Material Contract" has the meaning set forth in Section
3.8.
9.1.59. "MCG" means MCG Finance Corporation, a Delaware
corporation, or any successor or assignee thereof, having an office at the
address specified in the Notice Section hereof, and which is Administrative
Agent and a Lender hereunder at the time of execution hereof.
9.1.60. "Notes" means, individually and collectively, each
promissory note delivered to each Lender pursuant to any Loan Document and
evidencing any indebtedness to such Lender under the Loan Documents (each
as may be amended, modified, supplemented, restated, extended, renewed or
replaced from time to time).
9.1.61. "Obligations" means all of the indebtedness and
obligations (monetary or otherwise) of any Borrower and any other Obligor
arising under or in connection with any Loan Document as well as all
indebtedness and obligations (monetary or otherwise) of any Affiliate of
any Borrower or other Obligor arising under or in connection with any
agreement between any such Affiliate and Administrative Agent or any Lender
(or any Affiliate of Administrative Agent or any Lender).
9.1.62. "Obligor" means each Borrower or any other Person (other
than Administrative Agent and Lenders) obligated under any Loan Document.
9.1.63. "OCF" (or "Operating Cash Flow") has the meaning set
forth in the definition of EBITDA determined for the immediately preceding
four fiscal quarter period.
9.1.64. "Official Body" means any federal, state, local, or other
government (or any political subdivision, agency, authority, bureau,
commission, department or instrumentality thereof) and any court, tribunal,
grand jury or arbitrator, in each instance whether foreign or domestic.
9.1.65. "Operating Agreement" means any consulting agreement,
management agreement, employment agreement, cost allocation agreement, or
other similar agreement relating to the operations of any Borrower.
9.1.66. "Option" has the meaning set forth in Section 1.7.
9.1.67. "Organic Document" means, relative to any entity, its
certificate and articles of incorporation or organization, its by-laws or
operating agreements, and all equityholder agreements, voting agreements
and similar arrangements applicable to any of its authorized shares of
capital stock, its partnership interests or its member interests, and any
other arrangements relating to the control or management of any such entity
(whether existing as a corporation, a partnership, an LLC or otherwise).
9.1.68. "PBGC" means the Pension Benefits Guaranty Corporation or
any other entity that succeeds to its responsibilities and powers under
ERISA.
9.1.69. "Permitted Guaranties" has the meaning set forth in
Section 5.3.
9.1.70. "Permitted Indebtedness" has the meaning set forth in
Section 5.2.
9.1.71. "Permitted Investments" has the meaning set forth in
Section 5.7.
9.1.72. "Permitted Liens" has the meaning set forth in Section
5.5.
9.1.73. "Permitted Loans" has the meaning set forth in Section
5.4.
9.1.74. "Permitted Transfers" has the meaning set forth in
Section 5.6.
9.1.75. "Person" means any natural person, corporation, LLC,
partnership, firm, association, trust, government, governmental agency or
any other entity, whether acting in an individual, fiduciary or other
capacity.
9.1.76. "Plan" means any pension benefit or welfare benefit plan
as defined in Sections 3(1), (2) or (3) of ERISA covering employees of any
Borrower or any ERISA Affiliate of any Borrower.
9.1.77. "Pledge and Security Agreements" means, individually and
collectively, each pledge and security agreement relating to a pledge of an
equity interest in an enterprise (all as may be amended, modified and
supplemented from time to time) required to be executed and delivered in
favor of Administrative Agent pursuant to the Loan Documents.
9.1.78. "Portion" means a designated portion of the indebtedness
hereunder as to which a specified Rate Index (and a corresponding Rate
Margin) has been selected or deemed to be applicable.
9.1.79. "Prime Rate" means a variable rate of interest per annum
equal to the rate of interest from time to time published by the Board of
Governors of the Federal Reserve System in Federal Reserve statistical
release H.15 (519) entitled "Selected Interest Rates" as the Bank prime
loan rate. The Prime Rate also includes rates published in any successor
publications of the Federal Reserve System reporting the Bank prime loan
rate or its equivalent. In the event that the Board of Governors of the
Federal Reserve System ceases to publish a Bank prime loan rate or
equivalent, the term "Prime Rate" shall mean a variable rate of interest
per annum equal to the highest of the "prime rate," "reference rate," "base
rate" or other similar rate as determined by Administrative Agent announced
from time to time by any of First Union National Bank, NationsBank, the
Chase Manhattan Bank or Citibank, N.A. Such term, however, does not
necessarily mean Administrative Agent's best or lowest rate available.
9.1.80. "Pro Forma Leverage Ratio" means, at any time such ratio
is being computed, the ratio of "Funded Debt" to "Pro forma OCF."
9.1.81. "Pro Forma OCF" means, at the time of any determination,
the sum of the following items (without duplication) for Borrowers during
the relevant single fiscal quarter period (multiplied by four):
a. EBITDA during such period, and
b. Plus or minus such adjustments as set forth on
Schedule 9.1.81 which Schedule will be updated
from time to time as approved in Lenders' sole and
absolute discretion.
9.1.82. "Pro Rata" means from or to each Lender in proportion to
its Commitment Percentage.
9.1.83. "Rate Index" has the meaning set forth in Section 1.1.5.
9.1.84. "Rate Margin" has the meaning set forth in Section 1.1.5.
9.1.85. "Required Lender" means Lenders holding at least 66% of
the aggregate outstanding principal amount of the Loans (or, if no Loans at
the time of such determination are outstanding, then Lenders obligated with
respect to at least 66% of the Commitments).
9.1.86. "Reserve Percentage" has the meaning set forth in the
definition of "Adjusted LIBO Rate".
9.1.87. "Revenue" means revenue of Borrowers (on a consolidated
basis) as determined in accordance with GAAP.
9.1.88. "SEC" means the Securities and Exchange Commission or any
other entity that succeeds to its responsibilities and powers.
9.1.89. "Securities Acts" means, collectively, the Securities Act
of 1933 and the Securities Exchange Act of 1934, each as amended, and as
implemented by the SEC and interpreted by the SEC or any court of competent
jurisdiction.
9.1.90. "Security Agreements" means, collectively, each security
agreement (as may be amended, modified and supplemented from time to time)
required to be executed and delivered in favor of Administrative Agent
pursuant to Article 2, and any other security agreement required or
delivered in connection with the Loan Documents, including any intellectual
property assignments or security agreements required to be delivered
pursuant to Article 2.
9.1.91. "Settlement Date" means, with respect to any Advance
hereunder, the date on which funds are advanced by Administrative Agent.
9.1.92. "State Communications Acts" means the laws of any state
in which any Borrower does business that govern the provision of
communications services offered or performed by any Borrower within such
state and are applicable to such Borrower, as amended from time to time,
and as implemented by the rules, regulations, and orders of the applicable
State PUC or any court of competent jurisdiction.
9.1.93. "State PUC" means the public utility commission or other
regulatory agency of any state in which any Borrower does business that is
vested with jurisdiction over such Borrower and over State Communications
Acts or the provision of communication services within such state.
9.1.94. "Subordinated Indebtedness" means all indebtedness and
monetary obligations of any Borrower (other than indebtedness in favor of
Administrative Agent or any Lender or indebtedness and obligations
expressly excluded therefrom by Required Lenders), including all
indebtedness treated or defined as "Subordinated Indebtedness" under any
separate Subordination Agreement by and among a Borrower, Administrative
Agent and another Person. Notwithstanding the foregoing, the term
"Subordinated Indebtedness" (unless Required Lenders otherwise require)
does not include indebtedness permitted under Section 5.2.a or 5.2.b or (to
the extent consistent with Section 5.5.b) under Section 5.2.c or 5.2.d.
9.1.95. "Subsidiary" of any Person or entity means any Person as
to which such other Person or entity (a) directly or indirectly owns,
controls or holds 25% or more of the outstanding beneficial interest or (b)
is otherwise required in accordance with GAAP to be considered as part of a
consolidated organization.
9.1.96. "Tariff" means any tariff, rate schedule or similar
document that is either (a) required by law or applicable regulation to be
filed with the FCC or a State PUC or (b) permitted by law or applicable
regulation so to be filed and actually filed by any Borrower.
9.1.97. "Telecon Acquisition" means collectively, (a) the
acquisition by BOL Acquisition Co. III, Inc. of substantially all of the
assets of Telecon Communications Corporation, a New York corporation
("Telecon"), pursuant to the Asset Purchase Agreement dated December 5,
1999 by and among BiznessOnline, BOL Acquisition Co. III, Inc., Telecon and
the shareholders of Telecon, and (b) the simultaneous merger of
Telesupport, Inc., a New York corporation, into BOL Acquisition Co. II,
Inc. pursuant to the Agreement and Plan of Merger and Reorganization dated
December 5, 1999 by and among BiznessOnline, BOL Acquisition Co. II, Inc.,
Telesupport and the shareholders of Telesupport, each under the terms and
conditions set forth in such agreements (other than the provisions
permitting payment of $5,000,000 of the purchase price of Telecon by
promissory notes) and such other terms and conditions reasonably acceptable
to Lender.
9.1.98. "Term Loan Commitment" means the Commitment established
pursuant to Section 1.1 and Section 1.3.
9.1.99. "Term Loan Commitment Percentage" means, with respect to
each Lender, that portion of the total Term Loan Commitment as to which
such Lender is obligated.
9.1.100. "Term Loan Facility" means the term loan Facility as
described in Article 1.
9.1.101. "Term Loan Maturity Date" has the meaning set forth in
Section 1.1.2, as may be extended from time to time in Lenders' sole and
absolute discretion.
9.1.102. "Term Loan Note" means any Note payable to the order of
a Lender prepared in accordance with Section 1.1.4, as may be amended,
modified, restated, replaced, supplemented, extended or renewed from time
to time hereafter.
9.1.103. "Total Charges" means, at the time of any determination,
the sum of the following items (without duplication) for Borrowers during
the relevant four consecutive fiscal quarter period:
a. The amount of Fixed Charges during such period,
and
b. Plus the amount of all payments (principal,
interest and otherwise) made or required to be
made on the Subordinated Indebtedness during such
period (but only to the extent not already
included under one of the other categories of
Total Charges), and
c. Plus the amount of federal and state income taxes
paid or required to be paid during such period
(but only to the extent not already included under
one of the other categories of Total Charges).
For purposes of this calculation, interest includes interest accrued under
Capital Leases, and principal includes principal obligations under Capital
Leases.
9.1.104. "Total Charge Coverage Ratio" means, at any time such
ratio is being computed, the ratio of "Pro Forma OCF" to "Total Charges"
(for the immediately preceding four fiscal quarters).
9.1.105. "UCC" means the Uniform Commercial Code as in effect in
the applicable jurisdiction.
9.1.106. "Warrant Agreement" means that certain Warrant Agreement
between BiznessOnline and MCG dated as of the date hereof, as amended from
time to time.
9.1.107. "Warrants" has the meaning set forth in Section 1.7.
9.2. Rules of Interpretation and Construction.
----------------------------------------
9.2.1. Plural; Gender. Unless otherwise expressly stated or the
context clearly indicates a different intention, then (as may be
appropriate in the particular context) (a) a singular number or noun used
in any Loan Document includes the plural, and a plural number or noun
includes the singular, and (b) the use of the masculine, feminine or neuter
gender pronouns in any Loan Document includes each and all genders.
9.2.2. Section and Schedule References. Unless otherwise
expressly stated or the context clearly indicates a different intention,
then all references to sections, paragraphs, clauses, schedules and
exhibits in any Loan Document are to be interpreted as references to
sections, paragraphs, clauses, schedules and exhibits of such Loan Document
(rather than of some other Loan Document). In addition, the words "herein",
"hereof", "hereunder", "hereto" and other words of similar import in any
Loan Document refer to such Loan Document as a whole, and not to any
particular section, paragraph or clause in such Loan Document.
9.2.3. Titles and Headings. Unless otherwise expressly stated or
the context clearly indicates a different intention, then the various
titles and headings in the Loan Documents are inserted for convenience only
and do not affect the meaning or interpretation of such Loan Document or
any provision thereof.
9.2.4. "Including" and "Among Other" References. Unless otherwise
expressly stated or the context clearly indicates a different intention,
then all references in the Loan Documents to phrases containing or list
preceded by the words "include", "includes", "including", "among other",
"among other things" or other words or phrases of similar import are to be
interpreted to mean such "without limitation" (whether or not such
additional phrase is actually added). In other words, such words and
phrases connote an illustrative example or list rather than an exclusive
example or list.
9.2.5. "Shall", "Will", "Must", "Can" and "May" References.
Unless otherwise expressly stated or the context clearly indicates a
different intention, then all references in the Loan Documents to the words
"shall", "will" and "must" (including, when modified by "not") are to be
interpreted to indicate mandatory actions or restrictions (as applicable),
and all references in the Loan Documents to the words "may" and "can"
(unless modified by "not") are to be interpreted to indicate permissive
actions.
9.2.6. Time of Day References. Unless otherwise expressly stated
or the context clearly indicates a different intention, then all time of
day references in and restrictions imposed under the Loan Documents are to
be calculated using Eastern Time.
9.2.7. "Knowledge" of a Person. Unless otherwise expressly stated
or the context clearly indicates a different intention, then (a) all
references to the "knowledge," "awareness" or "belief" of any Person that
is not a natural person are to be interpreted to mean the knowledge,
awareness or belief of senior and executive management of such Person (and
including the knowledge or awareness of managers of limited liability
companies and general partners of partnerships), and (b) all
representations qualified by the "knowledge," "awareness" or "belief" of a
Person are to be interpreted to mean (unless a different standard is
specified) that such Person has conducted a commercially reasonable inquiry
and investigation prior to making such representation.
9.2.8. Successors and Assigns. Unless otherwise expressly stated
or the context clearly indicates a different intention, then all references
to any Person (including any Official Body) in any Loan Document are to be
interpreted as including (as applicable) such Person's successors, assigns,
estate, heirs, executors, administrators and personal representatives.
Notwithstanding the foregoing, no Borrower or other Obligor may assign or
delegate any Loan Document (or any right or obligation thereunder) except
to the extent expressly permitted hereunder or under such other Loan
Document.
9.2.9. Modifications to Documents. Unless otherwise expressly
stated or the context clearly indicates a different intention, then all
references to any Loan Document or other agreement or instrument in any
Loan Document are to be interpreted as including all extensions, renewals,
amendments, supplements, substitutions, replacements and waivers thereto
and thereof from time to time.
9.2.10. References to Laws and Regulations. Unless otherwise
expressly stated or the context clearly indicates a different intention,
then all references to any law, regulation, rule, order or policy in any
Loan Document are to be interpreted references to such law, regulation,
rule or policy (a) as implemented and interpreted from time to time by
Official Bodies with appropriate jurisdiction therefor, and (b) as amended,
modified, supplemented, replaced and repealed from time to time.
9.2.11. Financial and Accounting Terms. Unless otherwise
expressly stated or the context clearly indicates a different intention,
financial and accounting terms used in the foregoing definitions or
elsewhere in the Loan Documents shall be defined and determined in
accordance with GAAP.
9.2.12. Conflicts Among Loan Documents. Unless otherwise
expressly stated or the context clearly indicates a different intention,
then any irreconcilable conflict between the terms and conditions of this
Agreement and the terms and conditions of any other Loan Document (other
than a Note or any warrant issued to any Lender) are to be resolved by
having the terms and conditions of this Agreement govern.
9.2.13. Independence of Covenants and Defaults. All covenants and
defaults contained in the Loan Documents shall be given independent effect.
If a particular action or condition is not permitted by any covenant in the
Loan Documents, then the fact that such action or condition would be
permitted by an exception to (or would otherwise be within the limitations
of) another covenant in the Loan Documents shall not avoid the occurrence
or existence of a Default if such action is taken or if such condition
exists.
9.2.14. Administrative Agent. References in this Agreement and
the other Loan Documents to Administrative Agent shall mean either to
Administrative Agent in such capacity or (where appropriate) to
Administrative Agent for the benefit of Lenders. Unless otherwise indicated
in this Agreement or another Loan Document, all Collateral held and all
payments received by Administrative Agent are deemed to be held and
received, respectively, for the benefit of Lenders.
ARTICLE 10: MISCELLANEOUS
10.1. Indemnification, Reliance and Assumption of Risk. Without
limiting any other indemnification in any Loan Document, each Borrower
(jointly and severally) hereby agrees to defend Administrative Agent and
each Lender (and their directors, officers, employees, agents, counsels and
Affiliates) from, and hold each of them harmless against, any and all
losses, liabilities, claims, damages, interests, judgments, or costs
(including fees and disbursements of counsel) incurred by any of them
arising out of or in any way connected with any Loan Document, except for
losses resulting directly and exclusively from Administrative Agent's or
any Xxxxxx's own gross negligence, willful misconduct or fraud. In
addition, each Borrower will reimburse and (jointly and severally)
indemnify Administrative Agent and each Lender for all costs and losses
resulting from the following: (1) any failure or refusal by any Borrower or
by any Affiliate of any Borrower to provide any requested assistance or
cooperation in connection with any attempt by Administrative Agent or any
Lender to liquidate any Collateral in the event of any Event of Default
and/or any attempt by Administrative Agent or any Lender to otherwise
exercise its rights hereunder, and (2) any misrepresentation, gross
negligence, fraud or willful misconduct by any Borrower (or any of its
employees or officers), or any other person or entity pledging Collateral
hereunder. Moreover, with respect to any Advance Request or other
communication between any Borrower and Administrative Agent and/or Xxxxxxx
hereunder and all other matters and transactions in connection therewith,
each Borrower hereby irrevocably authorizes Administrative Agent and each
Lender to accept, rely upon, act upon and comply with any verbal or written
instructions, requests, confirmations and orders of any Authorized Officer
of any Borrower. Each Borrower acknowledges that the transmissions of any
such instruction, request, confirmation, order or other communication
involves the possibility of errors, omissions, mistakes and discrepancies,
and each Borrower agrees to adopt such internal measures and operational
procedures to protect its interest. By reason thereof, each Borrower hereby
assumes all risk of loss and responsibility for -- and hereby releases and
discharges Administrative Agent and each Lender from any and all risk of
loss and responsibility for, and agrees to indemnify, reimburse on demand
and hold Administrative Agent and each Lender harmless from -- any and all
claims, actions, damages, losses, liability and costs by reason of or in
any way related to (a) Administrative Agent's or any Lender's accepting,
relying and acting upon, complying with or observing any such instructions,
requests, confirmations or orders from or on behalf of any such Authorized
Officer, and (b) any such errors, omissions, mistakes and discrepancies by
(or otherwise resulting from or attributable to the actions or inactions
of) any Authorized Officer or any Borrower; provided, however, no Borrower
assumes hereby the risk of any foreseeable actual loss resulting directly
and exclusively from Administrative Agent's or any Xxxxxx's own gross
negligence, fraud or willful misconduct. Each Borrower's obligations
provided for in this Section will survive any termination of this
Agreement, and the repayment of the outstanding balances hereunder.
10.2. Assignments and Participations. No Loan Document may be assigned
(in whole or in part) by any Borrower without the prior written consent of
each Lender. Notwithstanding any other provision of any Loan Document,
without receiving any consent of any Borrower, each Lender at any time and
from time to time may syndicate, participate or otherwise transfer, pledge
or assign all (or any proportionate part of) its rights and obligations
under any of the Loan Documents (or any indebtedness evidenced thereby) to
any Person. Xxxxxxx (through Administrative Agent) will make reasonable
efforts to notify Borrowers of any such absolute transfer or assignment
within twenty (20) Business Days thereafter; however, a failure to so
notify will in no way impair any rights of Administrative Agent or Lenders
or any participant, transferee or assignee. Upon execution and delivery of
an appropriate instrument between any such participant, transferee or
assignee and an assigning Lender, then (at Administrative Agent's request)
such participant, transferee or assignee will become a Lender party to this
Agreement and will have all the rights and obligations of a Lender as set
forth in such instrument. At Administrative Agent's request, each Borrower
will execute (or re-execute) and deliver (or otherwise obtain) any
documents necessary to reflect or implement any such participation,
transfer or assignment (including replacement promissory notes and any
requested letters authorizing such participant, transferee or assignee to
rely on existing certificates and opinions) and will otherwise fully
cooperate in any such syndication process. Attached as Exhibit 10.2 is a
form of Assignment and Assumption Agreement, a substantially similar
version of which is to be used in connection with assignment of Lenders
hereunder.
10.3. No Waiver; Delay. To be effective, any waiver by Xxxxxxx must be
expressed in a writing executed by Administrative Agent (with the approval
of Required Lenders). Once a Default occurs under the Loan Documents, then
such Default will continue to exist until it either is cured (to the extent
specifically permitted) in accordance with the Loan Documents or is
otherwise expressly waived by Lenders (in their sole and absolute
discretion) in writing; and once an Event of Default occurs under the Loan
Documents, then such Event of Default will continue to exist until it is
expressly waived by Lenders (in their sole and absolute discretion) in
writing. If Administrative Agent or any Lender waives any power, right or
remedy arising hereunder or under any applicable law, then such waiver will
not be deemed to be a waiver (a) upon the later occurrence or recurrence of
any events giving rise to the earlier waiver or (b) as to any other
Obligor. No failure or delay by Administrative Agent or any Lender to
insist upon the strict performance of any term, condition, covenant or
agreement of any of the Loan Documents, or to exercise any right, power or
remedy hereunder, will constitute a waiver of compliance with any such
term, condition, covenant or agreement, or preclude Administrative Agent or
any Lender from exercising any such right, power, or remedy at any later
time or times. By accepting payment after the due date of any amount
payable under this Agreement or any other Loan Document, neither
Administrative Agent nor any Lender will be deemed to waive the right
either to require prompt payment when due of all other amounts payable
under this Agreement or any other Loan Document or to declare an Event of
Default for failure to effect such prompt payment of any such other amount.
The remedies provided herein are cumulative and not exclusive of each
other, the remedies provided by law, and the remedies provided by the other
Loan Documents.
10.4. Modifications and Amendments. Except as otherwise expressly
provided in this Agreement, no modification or amendment to any Loan
Document will be effective unless made in a writing signed by appropriate
officers of Administrative Agent (with the consent of the Required Lenders)
and each Borrower. Notwithstanding the foregoing, to the extent that any
such modification or amendment attempts to implement any of the following,
then such amendment or modification must approved by all Lenders:
a. Increase the Commitment Percentage of any Lender, or
b. Alter any provision that effectively reduces that interest
rate applicable to the Loans, or
c. Reduce the amount of any fees due to Lenders under any Loan
Document (other than fees payable to the Administrative Agent for its own
account), or
d. Reduce the amount of any payment (whether for principal,
interest or any fee, other than a fee payable to the Administrative Agent
for its own account), or
e. Postpone or extend the Maturity Date for any Facility or any
scheduled payment date (whether for principal, interest or any fee, other
than a fee payable to the Administrative Agent for its own account), or
f. Change the definition of "Pro Rata" or "Required Lenders" or
otherwise change the number or percentage of Lenders that are required to
take or approve (or direct the Administrative Agent to take) any action
under the Loan Documents, or
g. Release or discharge any Borrower as a "Borrower" under the
Loan Documents or permit any Borrower to assign to another Person any of
its rights or obligations under the Loan Documents, or
h. Release all or any part of any guaranty of any part of the
Indebtedness under the Loan Documents or any security interest in or pledge
of any Collateral (except as otherwise already expressly authorized under
the Loan Documents), or
i. Amend this Section.
In addition, no provision of any Loan Document relating to the rights or
obligations of the Administrative Agent may be modified or amended without
the consent of the Administrative Agent.
10.5. Disclosure of Information to Third Parties. Administrative Agent
and each Lender will employ reasonable procedures to treat as confidential
all written, non-public information delivered to Administrative Agent or
such Lender pursuant to this Agreement concerning the performance,
operations, assets, structure and business plans of Borrowers that is
conspicuously designated by Borrowers as confidential information. While
other or different confidentiality procedures may be employed by
Administrative Agent or any Lender, the actual procedures employed by
Administrative Agent and each Lender for this purpose will be conclusively
deemed to be reasonable if they are at least as protective of such
information as the procedures generally employed by Administrative Agent
and such Lender to safeguard the confidentiality of Administrative Agent's
and Xxxxxxx' own confidential information. Notwithstanding the foregoing,
Administrative Agent and each Lender may disclose any information
concerning any Borrower in Administrative Agent's or such Xxxxxx's
possession from time to time (a) to permitted participants, transferees,
assignees, pledgees and investors (including prospective participants,
transferees, assignees, pledgees and investors), but subject to a
reasonable confidentiality agreement regarding any non-public confidential
information thereby disclosed, and (b) in response to credit inquiries
consistent with general banking practices, and (c) to any federal or state
regulator of Administrative Agent or such Lender, and (d) to Administrative
Agent's or such Xxxxxx's Affiliates, employees, legal counsel, appraisers,
accountants, agents and investors, and (e) to any Person pursuant to
compulsory judicial process, and (f) to any judicial or arbitration forum
in connection with enforcing the Loan Documents or defending any action
based upon the Loan Documents or the relationship between Administrative
Agent, Xxxxxxx, and Xxxxxxxxx, and (g) to any other Person with respect to
the public or non-confidential portions of any such information. Moreover,
Administrative Agent and each Lender (without any compensation,
remuneration or notice to Borrowers) may also include operational and
performance and structural information and data relating to Borrowers in
compilations, reports and data bases assembled by Administrative Agent or
such Lender (or their Affiliates) and used to conduct, support, assist in
and validate portfolio, industry and credit research and analysis for
itself and other Persons; provided, however, that neither Administrative
Agent nor any Lender may thereby disclose to other Persons any information
relating to Borrowers in a manner that is attributable to Borrowers unless
(1) such disclosure is permitted under the standards outlined above in this
Section or (2) Borrowers otherwise separately consent thereto (which
consent may not be unreasonably withheld). Notwithstanding the foregoing,
Administrative Agent and Lenders agree to comply with applicable federal
securities laws and regulations regarding dissemination, use and/or
disclosure of non-public information.
10.6. Binding Effect and Governing Law. This Agreement and the other
Loan Documents have been delivered by Borrowers and the other Obligors and
have been received by Administrative Agent in the Commonwealth of Virginia.
This Agreement and all documents executed hereunder are binding upon and
inure to the benefit of the parties hereto and their respective successors
and assigns. This Agreement and all documents executed hereunder are
governed as to their validity, interpretation, construction and effect by
the laws of the Commonwealth of Virginia (without giving effect to the
conflicts of law rules of Virginia).
10.7. Notices. Any notice, request, consent, waiver or other
communication required or permitted under or in connection with the Loan
Documents will be deemed satisfactorily given if it is in writing and is
delivered either personally to the addressee thereof, or by prepaid
registered or certified U.S. mail (return receipt requested), or by a
nationally recognized commercial courier service with next-day delivery
charges prepaid, or by telegraph, or by facsimile (voice confirmed), or by
any other reasonable means of personal delivery to the party entitled
thereto at its respective address set forth below:
If to any Borrower [Party Entitled to Notice]
or its Affiliates: c/o XxxxxxxXxxxxx.xxx, Inc.
----------------- 1720 Route 34
P.O. Box 1347
Wall, New Jersey 07719
Attention: President
Xxxxxxxxx: (000) 000-0000
With a copy to the following listed counsel or such other counsel as
may be designated by Borrowers from time to time (and which notice
shall not constitute notice to Borrowers and failure to give such
notice shall not affect the effectiveness of notice to Borrowers):
Xxxxx & Xxxxxxx Ltd.
000 Xxxxx Xxxx Xxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 02903
Attention: Xxxxxxx Xxxxxxx, Esquire
Facsimile: (000) 000-0000
If to Administrative: MCG Finance Corporation
Agent or Lenders: 0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
---------------- Arlington, VA 22209
Attention: Loan Administration
Facsimile: (000) 000-0000
With a copy to the following listed counsel or such other counsel as
may be designated by Administrative Agent from time to time (and which
notice shall not constitute notice to Administrative Agent or any
Lender and failure to give such notice shall not affect the
effectiveness of notice to Administrative Agent or Lenders):
Xxxxx X. Xxxxx, Esquire
Xxxxx Xxxx LLP
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Any party to a Loan Document may change its address or facsimile number for
notice purposes by giving notice thereof to the other parties to such Loan
Document in accordance with this Section, provided that such change shall
not be effective until 2 calendar days after notice of such change. All
such notices and other communications will be deemed given and effective
(a) if by mail, then upon actual receipt or 5 calendar days after mailing
as provided above (whichever is earlier), or (b) if by facsimile, then upon
successful transmittal to such party's designated number, or (c) if by
telegraph, then upon actual receipt or 2 Business Days after delivery to
the telegraph company (whichever is earlier), or (d) if by nationally
recognized commercial courier service, then upon actual receipt or 2
Business Days after delivery to the courier service (whichever is earlier),
or (e) if otherwise delivered, then upon actual receipt. For any and all
purposes related to giving and receiving notices and communications between
any Borrower and Administrative Agent and Lenders under any Loan Document,
each Borrower hereby irrevocably appoints BiznessOnline (and each
Authorized Officer thereof ) as its agent to whom Administrative Agent and
each Lender may give and from whom Administrative Agent and each Lender may
receive all such notices and communications, and Administrative Agent and
each Lender is entitled to rely upon (and treat as being properly
authorized by Borrowers) any verbal or written notices or communications
purportedly received from (or that Administrative Agent or such Xxxxxx
believes in good faith to be received from) such Authorized Officer.
10.8. Relationship with Prior Agreements. This Agreement completely
and fully supersedes all oral agreements and all other and prior written
agreements by and among Borrowers and Administrative Agent and any Lender
concerning the terms and conditions of this credit arrangement.
10.9. Severability. If fulfillment of any provision of or any
transaction related to any Loan Document at the time performance is due
involves transcending the limit of validity prescribed by applicable law,
then ipso facto, the obligation to be fulfilled shall be reduced to the
limit of such validity. If any clause or provision of this Agreement
operates or would prospectively operate to invalidate this Agreement or any
other Loan Document in whole or in part, then such clause or provision only
shall be void (as though not contained herein or therein), and the
remainder of this Agreement or such other Loan Document shall remain
operative and in full force and effect; provided, however, if any such
clause or provision pertains to the repayment of any indebtedness
hereunder, then the occurrence of any such invalidity shall constitute an
immediate Event of Default hereunder.
10.10. Termination and Survival. All representations, warranties,
covenants and other agreements of any Obligor contained in any Loan
Document or any other documentation required thereunder will survive the
execution and delivery of the Loan Documents and the funding of the
Advances hereunder and will continue in full force and effect until
terminated in accordance with this Agreement. Upon (a) indefeasible receipt
by Administrative Agent of the entire indebtedness and all other amounts
then due or owing to Administrative Agent or any Lender under the Loan
Documents (without any condition, deduction, offset, netting, counterclaim
or reservation of rights), and (b) receipt by Administrative Agent of an
instruction from Borrowers to terminate and cancel the Loan Documents, all
Commitments and all Facilities thereunder (together with an acknowledgment
that neither Administrative Agent nor any Lender will have any further
obligations or liabilities under or in connection with any Loan Document),
then Administrative Agent (at the written request and expense of Borrowers)
will terminate and cancel all Loan Documents (other than the waivers,
reinstatement rights, and reimbursement and indemnification protections in
favor of Administrative Agent and each Lender under the Loan Documents,
which provisions shall survive any such termination of the Loan Documents).
10.11. Reinstatement. To the maximum extent not prohibited by
applicable law, this Agreement and the other Loan Documents (and the
indebtedness hereunder and Collateral therefor) will be reinstated and the
indebtedness correspondingly increased (as though such payment(s) had not
been made) if at any time any amount received by Administrative Agent or
any Lender in respect of any Loan Document is rescinded or must otherwise
be restored, refunded or returned by Administrative Agent or such Lender to
Borrower or any other Person (a) upon or as a result of the insolvency,
bankruptcy, dissolution, liquidation or reorganization of any Borrower or
any other Person, or (b) upon or as a result of the appointment of any
receiver, intervenor, conservator, trustee or similar official for any
Borrower or any other Person or for any substantial part of the assets of
any Borrower or any other Person, or (c) for any other reason.
10.12. Counterparts. This Agreement may be executed in any number of
counterparts with the same effect as if all the signatures on such
counterparts appeared on one document. Each such counterpart will be deemed
to be an original but all counterparts together will constitute one and the
same instrument.
10.13. Waiver of Suretyship Defenses. Each Borrower hereby waives any
and all defenses and rights of discharge based upon suretyship or
impairment of collateral (including lack of attachment or perfection with
respect thereto) that it may now have or may hereafter acquire with respect
to Administrative Agent or any Lender or any of its obligations hereunder,
under any Loan Document or under any other agreement that it may have or
may hereafter enter into with Administrative Agent or any Lender.
10.14. WAIVER OF LIABILITY. EACH BORROWER (A) AGREES THAT NEITHER
ADMINISTRATIVE AGENT NOR ANY LENDER (NOR ANY OF THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS) SHALL HAVE ANY LIABILITY TO ANY BORROWER (WHETHER
SOUNDING IN TORT, CONTRACT OR OTHERWISE) FOR LOSSES OR COSTS SUFFERED OR
INCURRED BY ANY BORROWER IN CONNECTION WITH OR IN ANY WAY RELATED TO THE
TRANSACTIONS CONTEMPLATED OR THE RELATIONSHIP ESTABLISHED BY ANY LOAN
DOCUMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH OR
THEREWITH, EXCEPT FOR FORESEEABLE ACTUAL LOSSES RESULTING DIRECTLY AND
EXCLUSIVELY FROM ADMINISTRATIVE AGENT'S OR SUCH XXXXXX'S OWN GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD AND (B) WAIVES, RELEASES AND AGREES
NOT TO SUE UPON ANY CLAIM AGAINST ADMINISTRATIVE AGENT OR ANY LENDER (OR
THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS) WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE, EXCEPT FOR CLAIMS FOR FORESEEABLE ACTUAL LOSSES
RESULTING DIRECTLY AND EXCLUSIVELY FROM ADMINISTRATIVE AGENT'S OR SUCH
XXXXXX'S OWN GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD. MOREOVER,
WHETHER OR NOT SUCH DAMAGES ARE RELATED TO A CLAIM THAT IS SUBJECT TO THE
WAIVER EFFECTED ABOVE AND WHETHER OR NOT SUCH WAIVER IS EFFECTIVE, NEITHER
ADMINISTRATIVE AGENT NOR ANY LENDER (NOR THEIR DIRECTORS, OFFICERS,
EMPLOYEES OR AGENTS) SHALL HAVE ANY LIABILITY WITH RESPECT TO (AND EACH
BORROWER HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR)
ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR NON-FORESEEABLE DAMAGES
SUFFERED BY ANY BORROWER IN CONNECTION WITH OR IN ANY WAY RELATED TO THE
TRANSACTIONS CONTEMPLATED OR THE RELATIONSHIP ESTABLISHED BY ANY LOAN
DOCUMENT, OR ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH OR
THEREWITH.
10.15. FORUM SELECTION; CONSENT TO JURISDICTION. ANY LITIGATION IN
CONNECTION WITH OR IN ANY WAY RELATED TO ANY LOAN DOCUMENT, OR ANY COURSE
OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN),
ACTIONS OR INACTIONS OF ADMINISTRATIVE AGENT, ANY LENDER OR ANY BORROWER
WILL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE COURTS OF THE
COMMONWEALTH OF VIRGINIA OR IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY BORROWER, ANY COLLATERAL OR ANY OTHER PROPERTY MAY
ALSO BE BROUGHT (AT ADMINISTRATIVE AGENT'S AND LENDERS' OPTION) IN THE
COURTS OF ANY OTHER JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY
MAY BE FOUND OR WHERE ADMINISTRATIVE AGENT OR ANY LENDER MAY OTHERWISE
OBTAIN PERSONAL JURISDICTION OVER SUCH BORROWER. EACH BORROWER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
COMMONWEALTH OF VIRGINIA AND OF THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET
FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY FINAL AND
NON-APPEALABLE JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH
LITIGATION. EACH BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, OR BY PERSONAL
SERVICE WITHIN OR OUTSIDE THE COMMONWEALTH OF VIRGINIA. EACH BORROWER
HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF
VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE
AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM. TO THE EXTENT THAT ANY BORROWER HAS OR HEREAFTER MAY ACQUIRE ANY
IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER
THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID
OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, THEN
SUCH BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS
OBLIGATIONS UNDER THIS AGREEMENT.
10.16. WAIVER OF JURY TRIAL. ADMINISTRATIVE AGENT, EACH LENDER AND
EACH BORROWER EACH HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES
ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
(WHETHER AS CLAIM, COUNTER-CLAIM, AFFIRMATIVE DEFENSE OR OTHERWISE) IN
CONNECTION WITH OR IN ANY WAY RELATED TO ANY OF THE LOAN DOCUMENTS, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR
WRITTEN), ACTIONS OR INACTIONS OF ADMINISTRATIVE AGENT, ANY LENDER OR ANY
BORROWER. EACH BORROWER ACKNOWLEDGES AND AGREES (A) THAT IT HAS RECEIVED
FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER
PROVISION OF EACH OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY), AND (B) THAT
IT HAS BEEN ADVISED BY LEGAL COUNSEL IN CONNECTION HEREWITH, AND (C) THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR ADMINISTRATIVE AGENT AND EACH
LENDER ENTERING INTO THE LOAN DOCUMENTS AND FUNDING ADVANCES THEREUNDER.
[BALANCE OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, the undersigned, by their duly authorized
officers, have executed this Credit Facility Agreement, as an instrument
under seal (whether or not any such seals are physically attached hereto),
as of the day and year first above written.
ATTEST: XXXXXXXXXXXXX.XXX, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: GLOBAL 2000 COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ALBANYNET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: WEBWAY INTERNET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ASCENT NETWORKING, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: CYBERZONE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: CARAVELA SOFTWARE, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: NECANET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: PRIME COMMUNICATION
SYSTEMS, INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: INFOBOARD, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BORG INTERNET SERVICES, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ULSTERNET, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. II, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. III, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. VIII, INC.
By: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
WITNESS: MCG FINANCE CORPORATION
(Administrative Agent)
/s/ Xxxx X. Xxxxxx By: /s/ Xxxxxx Xxxxxx
------------------------------- --------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Operating Officer
and Chief Financial Officer
