Exhibit 10.32
ESCROW AND ACCOUNT COLLATERAL AGREEMENT
THIS ESCROW AND ACCOUNT COLLATERAL AGREEMENT (as may be amended from time
to time, this "Agreement" or "Escrow Agreement") is made and effective as of
March 16, 2000, by and among XXXXX BANK, N.A. (including successors and
permitted assignees thereof, "Escrow Agent"), and XXXXXXXXXXXXX.XXX, INC.
("BiznessOnline") and each of its direct and indirect Subsidiaries (including
successors and permitted assignees thereof, each, a "Borrower"; collectively,
the "Borrowers"), and MCG FINANCE CORPORATION, in its capacity as Administrative
Agent for Lenders under the Credit Agreement defined below (including
successors, assignees, transferees, and pledgees thereof, "Lender Agent").
Unless otherwise defined herein, capitalized terms used herein have the meaning
ascribed thereto in the Credit Agreement defined below.
R E C I T A L S:
WHEREAS, Borrowers, Lenders and Lender Agent have entered into (or
substantially contemporaneously herewith are entering into) a Credit Facility
Agreement (as amended from time to time, the "Credit Agreement") and various
other Loan Documents as defined therein pursuant to which Lenders are extending
credit to Borrowers on a senior secured basis; and
WHEREAS, a portion of the Advances under the Credit Agreement will be used
by Borrowers to acquire various assets and assume various liabilities pursuant
to a certain Asset Purchase Agreement dated as of December 5, 1999 (including
all exhibits and schedules thereto and as amended from time to time (but only
with the consent of Lender Agent), the "Purchase Agreement"), by and among
BiznessOnline, BOL Acquisition Co., III, Inc., Telecon Communications
Corporation, a New York corporation ("Telecon"), and the shareholders of Telecon
(the "Acquisition"); and
WHEREAS, Borrowers, Lenders and Lender Agent have determined that it is
advisable to fund a portion of the Advances under the Credit Agreement into a
pledged escrow account prior to the effectiveness, consummation and closing
under the Purchase Agreement (the "Acquisition Closing"); and
NOW, THEREFORE, for other good and valuable consideration (the receipt and
sufficiency of which are hereby acknowledged), the parties hereby agree as
follows:
1. Account Identification; Borrower Authority. This Agreement applies to
the accounts identified below that have been established at Escrow Agent on
behalf of Borrowers, and to each other account hereafter established at Escrow
Agent on behalf of Borrowers during the effectiveness of this Agreement
(collectively, the "Accounts" or "Escrow Accounts"):
Description of Accounts Account Numbers
----------------------- ---------------
MCG/XXXXXXXXXXXXX.XXX ESCROW 0227 8701
Escrow Agent hereby agrees to deliver written notice to Lender Agent of the
establishment of any additional accounts by any Borrower. Each Borrower hereby
requests and instructs the Escrow Agent to open and establish the Accounts in
the name of Borrowers but with a designation that such Accounts are collateral
for and pledged to Lender Agent. Each Borrower (and each officer executing this
Agreement on behalf of a Borrower) hereby represents and warrants to Escrow
Agent and Lender Agent that such Borrower (and each such officer) has all
appropriate power and authority to execute, deliver and perform under this
Agreement (including the power and authority to make and give all requests,
instructions, appointments, consents and notifications given hereunder).
2. Transfer and Pledge of Accounts and Covered Property. Each Borrower
hereby grants a security interest in, collaterally assigns, transfers, pledges
and sets over unto Lender Agent all of such Borrower's right, title and interest
in and to the Accounts and all funds, items, instruments, investments,
securities and other things of value, and all proceeds thereof (collectively,
the "Covered Property"), at any time paid, deposited, credited or held in or in
transit to any Account. Lender Agent (subject to the terms of this Agreement)
hereafter shall have and be entitled to exercise sole and exclusive dominion and
control of the Accounts and all of the Covered Property, and each Borrower
(subject to the terms of this Agreement) hereby relinquishes all rights of
withdrawal or access to the Accounts and the Covered Property. Each Borrower
hereby agrees and covenants that it will not similarly grant, assign, transfer
or pledge to any other Person any interest in the Accounts or the Covered
Property. Escrow Agent hereby represents and warrants to Lender Agent that no
other notices of assignment with respect to any Account or any Covered Property
has been received by Escrow Agent.
3. Appointment and Acceptance of Agency. Each Borrower and Lender Agent
each hereby appoints, designates and constitutes Escrow Agent as the "Escrow
Agent" with respect to the Accounts and the Covered Property with full power and
authority to take such actions, to exercise such powers and to perform such
other duties as are expressly delegated and assigned to Escrow Agent by the
terms of this Agreement. Escrow Agent hereby accepts such appointment and agrees
to act as such Escrow Agent upon the express terms and conditions (but subject
to the limitations and qualifications) set forth in this Agreement.
4. Disbursement of Funds from Accounts.
a. Except as provided in this Section, Escrow Agent shall not permit
any withdrawal or disbursement of funds or other property from the Accounts
without the prior written consent of and instruction from Lender Agent.
b. Upon (i) receipt by Lender Agent of an escrow advance request
from Borrowers (such request, an "Escrow Advance Request", which shall contain
the information described below) and (ii) a determination by Lender Agent that
the Escrow Advance Request is accurate and complete and (iii) delivery to Lender
Agent of satisfactory evidence of final approval by the New York Public Service
Commission of the Acquisition and (iv) delivery to Lender Agent of satisfactory
evidence that none of the Borrowers has commenced or is then subject to a
proceeding under Title 11 of the United States Code or under any other law
related to bankruptcy, insolvency, liquidation, dissolution or reorganization,
readjustment or release of debtors, (v) a determination by
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Lender Agent that there does not then exist under the Loan Documents a payment
Default or payment Event of Default, then Lender Agent shall instruct Escrow
Agent to release and remit the Covered Property as directed by such instruction
from Borrowers. The Escrow Advance Request (1) shall certify to Lender Agent
that the Purchase Agreement is then effective and that all conditions to the
Acquisition Closing under the Purchase Agreement (other than the payment of the
purchase price thereunder) have been satisfied, and (2) shall certify to Lender
Agent that the Covered Property consisting of cash and immediately available
funds in the Accounts exceed the purchase price due under the Purchase
Agreement, and (3) shall instruct Lender Agent as to the amounts and wiring
information for the Covered Property being released from the Accounts, and (4)
shall authorize Lender Agent to instruct Escrow Agent to sell and liquidate all
investments in the Accounts and to transfer such funds in accordance with such
instructions received from Borrowers.
c. Notwithstanding any other provision of this Agreement, upon
receipt of a written request, instruction and authorization from Borrowers at
any time prior to the Acquisition Closing, then Lender Agent shall instruct
Escrow Agent (i) to sell and liquidate all investments in the Accounts and (ii)
to transfer all such funds in the Accounts to Lender Agent to be applied to the
outstanding balance under the Loan Documents in accordance with the terms
thereof. Further notwithstanding any other provision of this Agreement, (1) at
any time during the occurrence of a payment Default or payment Event of Default
under the Loan Documents and/or (2) at any time after April 30, 2000 (as such
date may be extended from time to time in the sole and absolute discretion of
Lender Agent, the "Escrow Advance Deadline") and/or (3) at any time after the
Lender Agent has received notice from the Escrow Agent that Escrow Agent is
terminating this Agreement under Section 12 hereof, then Lender Agent may (and
each Borrower hereby consents and authorizes Lender Agent to) instruct Escrow
Agent (y) to sell and liquidate all investments in the Accounts and (z) to
transfer all such funds in the Accounts to Lender Agent to be applied to the
outstanding balance under the Loan Documents in accordance with the terms
thereof.
5. Investment of Funds Pending Disbursement.
a. Each Borrower hereby instructs Escrow Agent to invest and
re-invest all of the funds in the Accounts in the "Xxxxx U.S. Treasury Fund" (a
money market account maintained in the Trust Department of Escrow Agent). Lender
Agent hereby consents to such investment and re-investment of the funds in the
Accounts. The investment election under this Clause may be changed only by
written instruction delivered to Escrow Agent by Borrowers with the prior
consent of Lender Agent (which consent shall not be unreasonably withheld while
no Default is occurring).
b. Each Borrower and Lender Agent each hereby agrees and consents
that Xxxxx & Co. and/or other affiliates of Escrow Agent from time to time (i)
may provide investment advisory and other services to the "Xxxxx U.S. Treasury
Fund" and (ii) may receive fees and other remuneration for such services in
accordance with applicable law.
c. All interest and other income earned on investments in the
Accounts shall be for the benefit of XxxxxxxXxxxxx.xxx, Inc., whose Federal Tax
Identification Number is as follows: 00-0000000.
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6. Waiver of Set-off Rights by Escrow Agent. Escrow Agent hereby waives
(with respect to all existing and future claims that it may have against any
Borrower) all rights of set-off and banker's liens that Escrow Agent may now or
hereafter have against the Accounts and the Covered Property that come into the
possession of Escrow Agent in connection with the Accounts.
7. Information Regarding Accounts and Investments. Escrow Agent shall
provide Lender Agent and Borrowers with such information with respect to the
Accounts and Covered Property as Lender Agent or Borrowers from time to time may
reasonably request.
8. Lender Agent Rights upon Default. Subject to the provisions of Section
4 above, in addition to the rights and remedies expressly granted in this
Agreement, upon and during the occurrence of a Default or an Event of Default
under the Loan Documents, Lender Agent shall also have all other legal and
equitable rights and remedies granted by or available under the other Loan
Documents and/or applicable law (including the "self help" and other rights of a
secured party under the UCC), all of which rights and remedies shall be
cumulative in nature.
9. Notices. All notices, requests or other communications given to any
Borrower, Lender Agent or Escrow Agent shall be given in writing (including by
facsimile transmission or similar writing), at the address specified below:
Lender Agent: MCG Finance Corporation
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Loan Administration
Facsimile: 000-000-0000
Telephone: 000-000-0000
Escrow Agent: Xxxxx Bank, N.A. / Xxxxx & Co.
000 00xx Xxxxxx, XX, 00xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx or Xx Xxxxx
Facsimile: 000-000-0000
Telephone: 000-000-0000
Borrowers: XxxxxxxXxxxxx.xxx, Inc.
0000 Xxxxx 00
X.X. Xxx 0000
Xxxx, Xxx Xxxxxx 00000
Attn: President
Facsimile: 000-000-0000
Telephone: 000-000-0000
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with a copy to: Xxxxx & Xxxxxxx Ltd.
000 Xxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attn: Xxxxxxx Xxxxxxx, Esquire
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may change its address for notices hereunder by notice to each other
party hereunder, 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), (e) or if otherwise delivered, then upon actual receipt.
10. Miscellaneous (Including, Governing Law, Modifications, and
Counterparts). This Agreement shall supersede any other agreement (to the extent
conflicting herewith) relating to the matters referred to herein (other than the
Credit Agreement and other Loan Documents), including any other account
agreement between any Borrower and Escrow Agent. This Agreement is binding upon
the parties hereto and their respective successors and assigns and shall inure
to their benefit. This Agreement may not be changed, amended, modified or waived
orally, but only by an instrument in writing signed by each of the parties
hereto. Any provision of this Agreement that may prove unenforceable under any
law or regulation shall not affect the validity of any other provision hereof.
This Agreement shall be governed by, and interpreted in accordance with, the
laws of the Commonwealth of Virginia without reference to principles of
conflicts of law, provided, however, that the provisions of this Section shall
not effect the relative rights and obligations as between Escrow Agent and any
Borrower arising or existing under any document establishing and otherwise
governing the administration of the Accounts (the "Account Agreement"), the
relationship of any Borrower and Escrow Agent, or the interpretation and
adjudication of disputes between any Borrower and Escrow Agent that may arise in
connection with the Account Agreement. This Agreement may be executed in any
number of counterparts which together shall constitute one and the same
instrument.
11. Indemnity; Limitation on Liability. Each Borrower hereby agrees to
indemnify and hold Escrow Agent and Lender Agent harmless from and against any
and all claims, losses, and liabilities (including the reasonable fees and
disbursements of its counsel and of any experts and agents) arising out of or
resulting from any of the following events: (a) any Borrower's failure to
perform or otherwise observe any of the provisions hereof, or (b) enforcement of
any of the provisions hereof by Escrow Agent or Lender Agent, or (c) any
Borrower's gross negligence, willful misconduct or fraud. Moreover, neither
Escrow Agent nor Lender Agent (nor any director, officer, employee or agent of
either thereof) shall have any liability to any Borrower or to Lender Agent
(whether sounding in tort, contract or otherwise) for any losses or costs
suffered by any such Borrower or Lender Agent that is in any way related to the
transactions under or the relationship
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established by this Agreement, or any course of conduct, course of dealing,
statement (whether verbal or written), action or inaction occurring in
connection herewith, except to the extent such losses result from its own gross
negligence, willful misconduct or fraud. Moreover, any such liability shall be
limited to actual, direct, foreseeable losses and shall not include any special,
indirect, consequential, punitive or non-foreseeable damages.
12. Term and Termination. This Agreement shall remain in full force and
effect until the earliest to occur of the following: (a) the date on which all
Covered Property has been transferred out of the Accounts in accordance with the
terms hereof and the Accounts have been terminated, or (b) the date on which
Lender Agent shall have delivered written notice to Escrow Agent that the Loan
Documents have been satisfied and terminated in accordance with their terms, or
(c) the date on which Borrowers and Lender Agent jointly instruct Escrow Agent
in writing that this Agreement is terminated, or (d) 45 calendar days after the
date on which Escrow Agent provides written notice to Lender Agent and Borrowers
that Escrow Agent intends to terminate its obligations hereunder, or (e) 10
Business Days after the date on which Escrow Agent provides written notice to
Lender Agent and Borrowers that Escrow Agent intends to terminate its
obligations hereunder as a result of a material violation by a Borrower under an
Account Agreement (provided that, prior to any such termination under this
Clause "(e)", Escrow Agent shall deliver all of the Covered Property either to
another escrow agent designated by Lender Agent or to Lender Agent to be applied
to the outstanding balance under the Loan Documents in accordance with the terms
thereof).
13. Forum Selection and Consent to Jurisdiction. Any litigation in any way
related to this Agreement, or any course of conduct, course of dealing,
statements (whether verbal or written), actions or inactions of Escrow Agent,
Lender Agent or any Borrower shall 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 may also be brought (at Escrow Agent's or
Lender Agent's option) in the courts of any jurisdiction where any Account or
any Covered Property may be found or where such Borrower is otherwise subject to
personal jurisdiction. 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 that
such Borrower 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.
14. Jury Trial Waiver. Each Borrower, Escrow Agent and Lender Agent each
hereby knowingly, voluntarily and intentionally waive any rights such Person may
have to a trial by jury in respect of any litigation (whether as claim,
counter-claim, affirmative defense or otherwise) in any way related to this
Agreement, or any course of conduct, course of dealing, statements (whether
verbal or written), actions or inactions of any such Person. Each
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Borrower acknowledges and agrees (a) that such Borrower has received full and
sufficient consideration for this provision (and each other provision of this
Agreement), and (b) that such Borrower has been advised by (or has had ample
opportunity to consult with) legal counsel in connection herewith, and (c) that
this provision is a material inducement for Escrow Agent and Lender Agent
performing under this Agreement.
[Balance of Page Intentionally Blank...Signatures on Following Page]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed by duly authorized representatives as of the day and year first above
written.
MCG FINANCE CORPORATION
(Lender Agent)
/s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Chief Operating Officer and
Chief Financial Officer
XXXXX BANK, N.A. (Escrow Agent)
/s/ O. Xxxxxxx Xxxxx, III
-----------------------------------
Name: O. Xxxxxxx Xxxxx, III
Title: Vice President
ATTEST: XXXXXXXXXXXXX.XXX, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: GLOBAL 2000 COMMUNICATIONS, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ALBANYNET, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: WEBWAY INTERNET, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ASCENT NETWORKING, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: CYBERZONE, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: CARAVELA SOFTWARE, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: NECANET, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: PRIME COMMUNICATION
SYSTEMS, INCORPORATED
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: INFOBOARD, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BORG INTERNET SERVICES, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: ULSTERNET, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. II, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. III, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
ATTEST: BOL ACQUISITION CO. VIII, INC.
By: By: /s/ Xxxx X. Xxxxx
------------------------------ --------------------------------
Name: Xxxxxx X. Xxxxxxxx Name: Xxxx X. Xxxxx
Title: Vice President Title: President and Treasurer
[CORPORATE SEAL]
