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EXHIBIT 4
REPAYMENT AGREEMENT
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REPAYMENT AGREEMENT
AGREEMENT made March 22 2001, between Xxxxxxx Xxxxxxxxxx (the
"Obligor"), and Interland, Inc., a Georgia corporation (together with any of its
successors or assigns, the "Guarantor").
RECITALS:
a. Obligor is obligated to repay a $3,400,000 loan to certain
subsidiaries of The Bear Xxxxxxx Companies, Inc. (the "Guaranteed Obligations").
b. Guarantor has guaranteed Obligor's Guaranteed Obligations to Bear
Xxxxxxx pursuant to that certain Guarantee dated March 22, 2001 by Guarantor in
favor of Bear Xxxxxxx (the "Guarantee").
c. Guarantor is willing to guarantee Obligor's Guaranteed Obligations
pursuant to the Guarantee on the terms set forth below.
It is therefore agreed:
1. DEFINITIONS. Capitalized terms used herein and not defined herein
shall have the meanings ascribed to such terms in the Guarantee.
2. REPAYMENT. Obligor shall promptly repay to Guarantor any and all
amounts paid by Guarantor by reason of its obligations under the Guarantee.
3. COLLATERAL. In order to secure Guarantor against loss by reason of
any breach of the foregoing covenant of repayment by Obligor, Obligor hereby
grants Guarantor a continuing security interest in all shares of the common
stock, no par value per share, of Guarantor that secure Obligor's Guaranteed
Obligations to Bear Xxxxxxx ("Obligor Collateral"). Guarantor's security
interest in the Obligor Collateral shall be subordinated and junior in right
only to the security interest of Bear Xxxxxxx in the Obligor Collateral.
Guarantor shall have such a security interest in all Obligor Collateral until
receipt by Guarantor of satisfactory evidence of the termination of its
liability as Guarantor under the Guarantee.
4. RIGHT TO OFFSET. In addition to its other rights hereunder,
Guarantor shall have the right to withhold from any salary, bonus, severance
payment or other compensation otherwise payable by Guarantor to Obligor by
reason of Obligor's employment by Guarantor (or termination thereof) amounts
equal to any amounts paid by Guarantor pursuant to Section 1 above, and offset
such withheld amounts against such losses.
5. SALE OF OBLIGOR COLLATERAL. If Obligor defaults under Section 1
above, Guarantor shall have with respect to the Obligor Collateral the rights
and remedies provided in the Uniform
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Commercial Code, common law and any other applicable law, subject only to the
prior security interest of Bear Xxxxxxx.
6. COMPROMISES. Guarantor may adjust, settle, or compromise any claim,
suit, or judgment in respect of any Guaranteed Obligation after notice to
Obligor, unless Obligor desires to litigate such claim, defend such suit, or
appeal such judgment, and simultaneously therewith deposits with Guarantor
additional collateral security sufficient to pay any judgment rendered, with
interest, costs, and expenses. Guarantor's right to repayment under this
agreement shall extend to any money paid by it in settlement or compromise of
any such claims, suits, and judgments in good faith, after notice to Obligor.
7. LEGAL ACTIONS. If any suit, action, or other proceeding is brought
by or against a creditor, or an assignee of a creditor, of Obligor in connection
with any of the Guaranteed Obligations, Guarantor may, at Obligor's expense,
either participate in or, at its election, assume the defense or prosecution of
such suit, action, or proceeding. In the latter event, Obligor may employ
counsel and participate therein. If any suit, action, or other proceeding is
brought by Guarantor against Obligor for breach of Section 1 above, separate
suits may be brought as causes of action accrue, without prejudice or bar to the
bringing of subsequent suits on any other cause or causes of action, whether
theretofore or thereafter accruing.
8. LIABILITY BETWEEN PARTIES. As between Obligor and Guarantor, the
former shall be primarily liable for the payment of all of the Guaranteed
Obligations. Nothing in this agreement shall be construed to waive, abridge, or
diminish any right or remedy which Guarantor might otherwise have against
Obligor.
9. TERM. This Agreement shall be and remain effective until receipt by
Guarantor of satisfactory evidence of the termination of its liability as
Guarantor under the Guarantee.
10. BINDING EFFECT. This agreement shall be binding upon and inure to
the benefit of the parties and their legal representatives and successors by
operation of law, but it shall not inure to the assigns of either party unless
the other party gives written consent thereto.
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In witness whereof the parties have signed this agreement.
OBLIGOR: /s/ Xxx Xxxxxxxxxx
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Xxxxxxx Xxxxxxxxxx
GUARANTOR: INTERLAND, INC.
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President and Chief Operating Officer
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