1
Exhibit 10.1
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CREDIT AGREEMENT
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders referred to herein,
FIRST UNION CAPITAL MARKETS CORP.,
as Arranger
and
FIRST UNION NATIONAL BANK,
as Administrative Agent
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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SECTION 1.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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SECTION 1.2 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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SECTION 1.3 Other Definitions and Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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ARTICLE II REVOLVING CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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SECTION 2.1 Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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SECTION 2.2 Procedure for Advances of Revolving Credit and Swingline Loans . . . . . . . . . . . . 13
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SECTION 2.3 Repayment of Loans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
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SECTION 2.4 Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
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SECTION 2.5 Permanent Reduction of the Aggregate Commitment . . . . . . . . . . . . . . . . . . . 15
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SECTION 2.6 Termination of Credit Facility . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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SECTION 2.7 Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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SECTION 2.8 Increase in Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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ARTICLE III LETTER OF CREDIT FACILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 3.1 L/C Commitment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 3.2 Procedure for Issuance of Letters of Credit . . . . . . . . . . . . . . . . . . . . . 17
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SECTION 3.3 Commissions and Other Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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SECTION 3.4 L/C Participations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
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SECTION 3.5 Reimbursement Obligation of the Borrower . . . . . . . . . . . . . . . . . . . . . . . 19
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SECTION 3.6 Obligations Absolute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
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SECTION 3.7 Effect of Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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ARTICLE IV GENERAL LOAN PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 4.1 Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
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SECTION 4.2 Notice and Manner of Conversion or Continuation of Loans . . . . . . . . . . . . . . . 22
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SECTION 4.3 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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SECTION 4.4 Manner of Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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SECTION 4.5 Crediting of Payments and Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 4.6 Adjustments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions of Credit; Assumption
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by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
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SECTION 4.8 Changed Circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
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SECTION 4.9 Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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SECTION 4.10 Capital Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
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SECTION 4.11 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
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SECTION 4.12 Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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SECTION 4.13 Change in Lending Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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ARTICLE V CLOSING; CONDITIONS OF CLOSING AND BORROWING . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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SECTION 5.1 Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
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SECTION 5.2 Conditions to Closing and Initial Extensions of Credit . . . . . . . . . . . . . . . . 30
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SECTION 5.3 Conditions to All Extensions of Credit . . . . . . . . . . . . . . . . . . . . . . . . 34
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ARTICLE VI REPRESENTATIONS AND WARRANTIES OF THE BORROWER . . . . . . . . . . . . . . . . . . . . . . . . 35
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SECTION 6.1 Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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SECTION 6.2 Survival of Representations and Warranties, Etc . . . . . . . . . . . . . . . . . . . 42
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ARTICLE VII FINANCIAL INFORMATION AND NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
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SECTION 7.1 Financial Statements and Projections . . . . . . . . . . . . . . . . . . . . . . . . . 42
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SECTION 7.2 Officer's Compliance Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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SECTION 7.3 Accountants' Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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SECTION 7.4 Other Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
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SECTION 7.5 Notice of Litigation and Other Matters . . . . . . . . . . . . . . . . . . . . . . . . 44
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SECTION 7.6 Accuracy of Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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ARTICLE VIII AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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SECTION 8.1 Preservation of Corporate Existence and Related Matters . . . . . . . . . . . . . . . 45
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SECTION 8.2 Maintenance of Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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SECTION 8.3 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
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SECTION 8.4 Accounting Methods and Financial Records . . . . . . . . . . . . . . . . . . . . . . . 45
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SECTION 8.5 Payment and Performance of Obligations . . . . . . . . . . . . . . . . . . . . . . . . 46
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SECTION 8.6 Compliance With Laws and Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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SECTION 8.7 Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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SECTION 8.8 Compliance with ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
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SECTION 8.9 Compliance With Material Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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SECTION 8.10 Conduct of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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SECTION 8.11 Visits and Inspections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
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SECTION 8.12 Guarantors and Additional Collateral . . . . . . . . . . . . . . . . . . . . . . . . . 47
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SECTION 8.13 Year 2000 Compatibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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SECTION 8.14 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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ARTICLE IX FINANCIAL COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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SECTION 9.1 Leverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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SECTION 9.2 Interest Coverage Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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SECTION 9.3 Minimum Net Worth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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ARTICLE X NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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SECTION 10.1 Limitations on Debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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SECTION 10.2 Limitations on Guaranty Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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SECTION 10.3 Limitations on Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
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SECTION 10.4 Limitations on Loans, Advances, Investments and Acquisitions . . . . . . . . . . . . . 51
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SECTION 10.5 Limitations on Mergers and Liquidation . . . . . . . . . . . . . . . . . . . . . . . . 53
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SECTION 10.6 Limitations on Sale of Assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
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SECTION 10.7 Limitations on Dividends and Distributions . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 10.8 Limitations on Exchange and Issuance of Capital Stock . . . . . . . . . . . . . . . . . 54
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SECTION 10.9 Transactions with Affiliates. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 10.10 Certain Accounting Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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SECTION 10.11 Amendments; Payments and Prepayments of Subordinated Debt . . . . . . . . . . . . . . . 54
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SECTION 10.12 Restrictive Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
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ARTICLE XI DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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SECTION 11.1 Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
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SECTION 11.2 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
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SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc . . . . . . . . . . . . . . . . . . . . 58
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ARTICLE XII THE ADMINISTRATIVE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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SECTION 12.1 Appointment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
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SECTION 12.2 Delegation of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 12.3 Exculpatory Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 12.4 Reliance by the Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . 59
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SECTION 12.5 Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
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SECTION 12.6 Non-Reliance on the Administrative Agent and Other Lenders . . . . . . . . . . . . . . 60
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SECTION 12.7 Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
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SECTION 12.8 The Administrative Agent in Its Individual Capacity . . . . . . . . . . . . . . . . . . 61
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SECTION 12.9 Resignation of the Administrative Agent; Successor Administrative Agent . . . . . . . . 61
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SECTION 12.10 The Administrative Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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ARTICLE XIII MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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SECTION 13.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
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SECTION 13.2 Expenses; Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
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SECTION 13.3 Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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SECTION 13.4 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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SECTION 13.5 Consent to Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
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SECTION 13.6 Binding Arbitration; Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . 64
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SECTION 13.7 Reversal of Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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SECTION 13.8 Injunctive Relief; Punitive Damages . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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SECTION 13.9 Accounting Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
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SECTION 13.10 Successors and Assigns; Participations . . . . . . . . . . . . . . . . . . . . . . . . 67
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SECTION 13.11 Amendments, Waivers and Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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SECTION 13.12 Performance of Duties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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SECTION 13.13 All Powers Coupled with Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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SECTION 13.14 Survival of Indemnities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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SECTION 13.15 Titles and Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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SECTION 13.16 Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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SECTION 13.17 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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SECTION 13.18 Term of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
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SECTION 13.19 Inconsistencies with Other Documents; Independent Effect of Covenants . . . . . . . . . 71
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EXHIBITS
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Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Guaranty and Collateral Agreement
Exhibit I-1 - Form of Commitment Increase Supplement
Exhibit I-2 - Form of New Lender Supplement
SCHEDULES
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Schedule 1.1 - Lenders and Commitments
Schedule 6.1(a) - Jurisdictions of Organization and Qualification
Schedule 6.1(b) - Subsidiaries and Capitalization
Schedule 6.1(i) - ERISA Plans
Schedule 6.1(l) - Material Contracts
Schedule 6.1(m) - Labor and Collective Bargaining Agreements
Schedule 6.1(t) - Debt and Guaranty Obligations
Schedule 6.1(u) - Litigation
Schedule 6.1(w) - Communications Licenses
Schedule 8.12(c) - Leased Sites
Schedule 10.3 - Existing Liens
Schedule 10.4 - Existing Loans, Advances and Investments
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CREDIT AGREEMENT, dated as of the 17th day of February, 1999, by and among
MINDSPRING ENTERPRISES, INC., a Delaware corporation (the "Borrower"), the
Lenders who are or may become a party to this Agreement, FIRST UNION CAPITAL
MARKETS CORP., as Arranger, and FIRST UNION NATIONAL BANK, as Administrative
Agent for the Lenders.
STATEMENT OF PURPOSE
The Borrower has requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrower on the terms and conditions of this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such
parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used
in this Agreement shall have the meanings assigned to them below:
"Administrative Agent" means First Union in its capacity as
Administrative Agent hereunder, and any successor thereto appointed pursuant to
Section 12.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
13.1(c).
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary) which directly or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control with,
such first Person or any of its Subsidiaries. The term "control" means (a) the
power to vote five percent (5%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or modified at any time or
from time to time pursuant to Section 8.12(d) or the other applicable terms
hereof. On the Closing Date, the Aggregate Commitment shall be One Hundred
Million Dollars ($100,000,000).
"Agreement" means this Credit Agreement, as amended, restated or
otherwise modified.
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of
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courts or Governmental Authorities and all orders and decrees of all courts and
arbitrators including Communications Law.
"Applicable Margin" shall have the meaning assigned thereto in Section
4.1(c).
"Application" means an application, in the form specified by the Issuing
Lender from time to time, requesting the Issuing Lender to issue a Letter of
Credit.
"Arranger" means First Union Capital Markets Corp., as arranger
hereunder.
"Asset Purchase Agreement" means the Asset Purchase Agreement between
the Borrower, as buyer, and Netcom, as seller dated January 5, 1999, and as in
effect on the Closing Date and any subsequent material modifications thereto
which have been approved by the Administrative Agent in its reasonable
discretion.
"Assignment and Acceptance" shall have the meaning assigned thereto in
Section 13.10.
"Available Commitment" shall equal the lesser of (a) $85,000,000 or
(b) the Aggregate Commitment, until the earlier to occur of (i) the date on
which the Borrower complies with the requirements of Section 8.12(c) or (ii)
the date which is the ninety-first (91st) day after the Closing Date, at which
time the Available Commitment shall equal the Aggregate Commitment.
"Base Rate" means, at any time, the higher of (a) the Prime Rate and
(b) the sum of (i) the Federal Funds Rate plus (ii) 1/2 of 1%; each change in
the Base Rate shall take effect simultaneously with the corresponding change or
changes in the Prime Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 4.1(a).
"Borrower" means MindSpring Enterprises, Inc., a Delaware corporation,
in its capacity as borrower hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
"Capital Asset" means, with respect to the Borrower and its Subsidiaries,
any asset that should, in accordance with GAAP, be classified and accounted for
as a capital asset on a Consolidated balance sheet of the Borrower and its
Subsidiaries.
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"Capital Lease" means, with respect to the Borrower and its Subsidiaries,
any lease of any property that should, in accordance with GAAP, be classified
and accounted for as a capital lease on a Consolidated balance sheet of the
Borrower and its Subsidiaries.
"Change in Control" shall have the meaning assigned thereto in Section
11.1(i).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 5.2 shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion or as provided therein.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended, supplemented or otherwise modified.
"Collateral" shall have the meaning assigned thereto in the Guaranty and
Collateral Agreement.
"Commitment" means, as to any Lender, the obligation of such Lender to
make Loans to and issue or participate in Letters of Credit issued for the
account of the Borrower hereunder in an aggregate principal or face amount at
any time outstanding not to exceed the amount set forth opposite such Lender's
name on Schedule 1.1 hereto, as the same may be reduced or modified at any time
or from time to time pursuant to the terms hereof.
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all of the Lenders.
"Communications Law" means the Communications Act of 1934, as amended,
and all rules and regulations thereunder, or any successor statute or statutes
thereto (including, without limitation, the Telecommunications Act of 1996) and
all rules and regulations issued by the FCC thereunder, as amended or
supplemented from time to time.
"Communications License" means any local telecommunications, long
distance telecommunications, or other license, permit, consent, certificate of
compliance, franchise, approval, waiver or authorization granted or issued by
the FCC or other applicable federal Governmental Authority or any state,
provincial or other regulatory agency pertaining to the provision of internet
service, including, without limitation, any of the foregoing authorizing or
permitting the acquisition, construction or operation of any network
facilities.
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Borrower and its Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
"Credit Facility" means the collective reference to the Revolving
Credit Facility and the L/C Facility.
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"Debt" means, with respect to the Borrower and its Subsidiaries at any
date and without duplication, the sum of the following calculated in accordance
with GAAP: (a) all liabilities, obligations and indebtedness for borrowed
money including but not limited to obligations evidenced by bonds including any
accrued interest arising as a result of interest deferrals, debentures, notes
or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person, except
trade payables arising in the ordinary course of business not more than ninety
(90) days past due (excluding such trade payables which are being contested in
good faith and for which adequate reserves are maintained to the extent
required by GAAP), (c) all obligations of any such Person as lessee under
Capital Leases, (d) all Debt of any other Person secured by a Lien on any asset
of any such Person, (e) all Guaranty Obligations of any such Person, (f) all
obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including without limitation
any Reimbursement Obligation, and banker's acceptances issued for the account
of any such Person, (g) all obligations of any such Person to redeem,
repurchase, exchange, defease or otherwise make payments in respect of capital
stock or other securities of such Person and (h) all obligations incurred by
any such Person pursuant to Hedging Agreements.
"Default" means any of the events specified in Section 11.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"EBITDA" means, for any period, the sum of the following determined on
a consolidated basis, without duplication, for the Borrower and its
Subsidiaries in accordance with GAAP: (a) net income for such period plus (b)
the sum of the following to the extent deducted in determining net income: (i)
income and franchise taxes, (ii) interest expense, (iii) amortization,
depreciation and other non-cash charges less (c) interest income and any
extraordinary gains. EBITDA shall be adjusted in a manner reasonably
satisfactory to the Administrative Agent to include on a pro forma basis as of
the first day of any calculation period any acquisition consummated during such
period in accordance with this Agreement and exclude on a pro forma basis as of
the first day of any calculation any Subsidiary or assets sold during such
period in accordance with this Agreement.
"Eligible Assignee" means, with respect to any assignment of the rights,
interest and obligations of a Lender hereunder, a Person that is at the time of
such assignment (a) a commercial bank organized under the laws of the United
States or any state thereof, having combined capital and surplus in excess of
$500,000,000, (b) a commercial bank organized under the laws of any other
country that is a member of the Organization of Economic Cooperation and
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an
original party to this Agreement or as the assignee of another Lender), (e) the
successor (whether by transfer of assets, merger or otherwise) to all or
substantially all of the commercial
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lending business of the assigning Lender, or (f) any other Person that has been
approved in writing as an Eligible Assignee by the Borrower and the
Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
years been maintained for the employees of the Borrower or any current or
former ERISA Affiliate.
"Environmental Laws" means any and all federal, state and local laws,
statutes, ordinances, rules, regulations, permits, licenses, approvals,
interpretations and orders of courts or Governmental Authorities, relating to
the protection of human health or the environment, including, but not limited
to, requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended, supplemented or
otherwise modified.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve
requirement (including without limitation any basic, supplemental or emergency
reserves) in respect of eurocurrency liabilities or any similar category of
liabilities for a member bank of the Federal Reserve System in New York City.
"Event of Default" means any of the events specified in Section 11.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Extensions of Credit" means, as to any Lender at any time, an amount
equal to the sum of (a) the aggregate principal amount of all Loans made by
such Lender then outstanding and (b) such Lender's Commitment Percentage of the
L/C Obligations then outstanding.
"FCC" means the Federal Communications Commission or any successor
Governmental Authority.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any
reason, such rate is not available, then "Federal Funds Rate" shall mean a daily
rate which is determined,
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in the opinion of the Administrative Agent, to be the rate at which federal
funds are being offered for sale in the national federal funds market at 9:00
a.m. (Charlotte time). Rates for weekends or holidays shall be the same as the
rate for the most immediate preceding Business Day.
"First Union" means First Union National Bank, a national banking
association, and its successors.
"Fiscal Year" means the fiscal year of the Borrower and its Subsidiaries
ending on December 31.
"GAAP" means generally accepted accounting principles, as recognized
by the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
consistent with the prior financial practice of the Borrower and its
Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guarantors" means the Subsidiaries of the Borrower who have executed
or joined the Guaranty and Collateral Agreement; "Guarantor" means any of such
Guarantors.
"Guaranty and Collateral Agreement" means that certain Guaranty and
Collateral Agreement of even date executed by the Borrower substantially in the
form of Exhibit H hereto, as amended, restated or otherwise modified, including
all joinders thereto executed by any Guarantors after the Closing Date.
"Guaranty Obligation" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for
the purpose of assuring in any other manner the obligee of such Debt or other
obligation of the payment thereof or to protect such obligee against loss in
respect thereof (in whole or in part); provided, that the term Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
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"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Applicable Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Applicable Law, (d) the discharge or emission or release of which requires
a permit or license under any Applicable Law or other Governmental Approval,
(e) which are deemed to constitute a nuisance, a trespass or pose a health or
safety hazard to persons or neighboring properties, (f) which consist of
underground or aboveground storage tanks, whether empty, filled or partially
filled with any substance, or (g) which contain, without limitation, asbestos,
polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum
hydrocarbons, petroleum derived substances or waste, crude oil, nuclear fuel,
natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to an interest
rate swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection
with hedging the interest rate exposure of the Borrower, and any confirming
letter executed pursuant to such hedging agreement, all as amended, restated or
otherwise modified.
"Intercompany Debt" means any Debt among (a) the Borrower and its
Subsidiaries or (b) any Subsidiaries of the Borrower.
"Interest Expense" means, for any period, total interest expense
(including, without limitation, interest expense attributable to Capital
Leases) determined on a consolidated basis, without duplication, for the
Borrower and its Subsidiaries in accordance with GAAP.
"Interest Period" shall have the meaning assigned thereto in Section
4.1(b).
"Issuing Lender" means any Lender hereunder, in its capacity as issuer
of any Letter of Credit, or any successor thereto.
"L/C Commitment" means the lesser of (a) Ten Million Dollars
($10,000,000) and (b) the Aggregate Commitment.
"L/C Facility" means the letter of credit facility established pursuant
to Article III hereof.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
other than the Issuing Lender.
"Leased Sites" shall have the meaning assigned thereto in Section
8.12(c).
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"Lender" means each Person executing this Agreement as a Lender set
forth on the signature pages hereto and each Person that hereafter becomes a
party to this Agreement as a Lender pursuant to Section 13.10(b).
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Loans.
"Letters of Credit" shall have the meaning assigned thereto in Section
3.1.
"Leverage Ratio" shall have the meaning assigned thereto in Section
9.1.
"LIBOR" means the rate of interest per annum determined on the basis
of the rate for deposits in Dollars in minimum amounts of at least $5,000,000
for a period equal to the applicable Interest Period which appears on the
Telerate Page 3750 at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period. If, for any
reason, such rate does not appear on Telerate Page 3750, then "LIBOR" shall be
determined by the Administrative Agent to be the arithmetic average of the rate
per annum at which deposits in Dollars would be offered by first class banks in
the London interbank market to the Administrative Agent approximately 11:00
a.m. (London time) two (2) Business Days prior to the first day of the
applicable Interest Period for a period equal to such Interest Period and in an
amount substantially equal to the amount of the applicable Loan.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
------------------------------
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 4.1(a).
"Lien" means, with respect to any asset, any mortgage, lien pledge,
charge, security interest or encumbrance of any kind in respect of such asset.
For the purposes of this Agreement, a Person shall be deemed to own subject to
a Lien any asset which it has acquired or holds subject to the interest of a
vendor or lessor under any conditional sale agreement, Capital Lease or other
title retention agreement relating to such asset.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, any Hedging Agreement with any Lender (which such Hedging
Agreement is permitted or required hereunder), the Guaranty and Collateral
Agreement and each other document, instrument, certificate and agreement
executed and delivered by the Borrower or its Subsidiaries in connection with
this Agreement or otherwise referred to herein or contemplated hereby, all as
may be amended, restated or otherwise modified.
"Loan Parties" means the collective reference to the Borrower and the
Guarantors.
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"Loans" means any revolving loan made to the Borrower pursuant to Section
2.1, and all such revolving loans collectively as the context requires.
"Material Adverse Effect" means, with respect to the Borrower and its
Subsidiaries, taken as a whole, a material adverse effect on the properties,
business, prospects, operations or condition (financial or otherwise) of such
Persons or the ability of such Persons to perform their respective obligations
under the Loan Documents or Material Contracts, in each case to which they are
a party.
"Material Contract" means (a) any contract or other agreement, written
or oral, of the Borrower or any of its Subsidiaries involving monetary
liability of or to any such Person in an amount in excess of $1,000,000 per
annum, or (b) any other contract or agreement, written or oral, of the Borrower
or any of its Subsidiaries the failure to comply with which could reasonably be
expected to have a Material Adverse Effect.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, contributions within the preceding six
years.
"Net Cash Proceeds" means, as applicable, (a) with respect to any sale
or other disposition of assets, the gross cash proceeds received by the
Borrower or any of its Subsidiaries from such sale less the sum of (i) all
income taxes and other taxes assessed by a Governmental Authority as a result
of such sale and any other fees and expenses incurred in connection therewith
and (ii) the principal amount of, premium, if any, and interest on any Debt
secured by a Lien on the asset (or a portion thereof) sold, which Debt is
required to be repaid in connection with such sale, (b) with respect to any
offering of capital stock or issuance of Debt, the gross cash proceeds received
by the Borrower or any of its Subsidiaries therefrom less all legal,
underwriting and other fees and expenses incurred in connection therewith and
(c) with respect to any payment under an insurance policy or in connection with
a condemnation proceeding, the amount of cash proceeds received by the Borrower
or its Subsidiaries from an insurance company or Governmental Authority, as
applicable, net of all expenses of collection.
"Netcom" means NETCOM On-Line Communications Services, Inc., a
Delaware corporation.
"Netcom Acquisition" means the acquisition by the Borrower of certain
assets of Netcom in accordance with the Asset Purchase Agreement.
"Net Worth" means, at any date of determination, the total shareholders'
equity (including capital stock, additional paid-in capital and retained
earnings after deducting the treasury stock) of the Borrower and its
Subsidiaries as set forth on the Consolidated balance sheet thereof, in each
case, as determined and prepared in accordance with GAAP.
"Notes" means the collective reference to the Notes made by the Borrower
payable to the order of each Lender, substantially in the form of Exhibit A
hereto, evidencing the Revolving
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Credit Facility, and any amendments and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part; "Note" means any of such Notes.
"Notice of Account Designation" shall have the meaning assigned thereto
in Section 2.2(b).
"Notice of Borrowing" shall have the meaning assigned thereto in Section
2.2(a).
"Notice of Conversion/Continuation" shall have the meaning assigned
thereto in Section 4.2.
"Notice of Prepayment" shall have the meaning assigned thereto in Section
2.3(c).
"Obligations" means, in each case, whether now in existence or hereafter
arising: (a) the principal of and interest on (including interest accruing
after the filing of any bankruptcy or similar petition) the Loans, (b) the L/C
Obligations, (c) all payment and other obligations owing by the Borrower to any
Lender or the Administrative Agent under any Hedging Agreement with any Lender
(which Hedging Agreement is permitted or required hereunder), and (d) all other
fees and commissions (including attorney's fees), charges, indebtedness, loans,
liabilities, financial accommodations, obligations, covenants and duties owing
by the Borrower to the Lenders or the Administrative Agent, of every kind,
nature and description, direct or indirect, absolute or contingent, due or to
become due, contractual or tortious, liquidated or unliquidated, and whether or
not evidenced by any note, in each case under or in respect of this Agreement,
any Note, any Letter of Credit or any of the other Loan Documents.
"Officer's Compliance Certificate" shall have the meaning assigned
thereto in Section 7.2.
"Other Taxes" shall have the meaning assigned thereto in Section 4.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding
six years been maintained for the employees of the Borrower or any of its
current or former ERISA Affiliates.
"Permitted Acquisition" shall have the meaning assigned thereto in
Section 10.4(c).
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
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"Prime Rate" means, at any time, the rate of interest per annum publicly
announced from time to time by First Union as its prime rate. Each change in
the Prime Rate shall be effective as of the opening of business on the day such
change in the Prime Rate occurs. The parties hereto acknowledge that the rate
announced publicly by First Union as its Prime Rate is an index or base rate
and shall not necessarily be its lowest or best rate charged to its customers
or other banks.
"Register" shall have the meaning assigned thereto in Section 13.10(d).
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Required Lenders" means, at any date, any combination of holders of at
least fifty-one percent (51%) of the aggregate unpaid principal amount of the
Notes, or if no amounts are outstanding under the Notes, any combination of
Lenders whose Commitment Percentages aggregate at least fifty-one percent
(51%).
"Responsible Officer" means any of the following: the chief executive
officer or chief financial officer of the Borrower or any other officer of the
Borrower reasonably acceptable to the Administrative Agent.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II hereof.
"Security Documents" means the collective reference to the Guaranty and
Collateral Agreement and each other agreement or writing pursuant to which the
Borrower or any Subsidiary thereof purports to pledge or grant a security
interest in any property or assets securing the Obligations or any such Person
purports to guaranty the payment and/or performance of the Obligations.
"Solvent" means, as to the Borrower and its Subsidiaries, taken as a
whole, on a particular date, that such Persons (a) have capital sufficient to
carry on their business and transactions and all business and transactions in
which they are about to engage and are able to pay their debts as they mature,
(b) own property having a value, both at fair valuation and at present fair
saleable value, greater than the amount required to pay their probable
liabilities (including contingencies), and (c) do not believe that they will
incur debts or liabilities beyond their ability to pay such debts or
liabilities as they mature.
"Subordinated Debt" means the collective reference to Debt on Schedule
6.1(t) hereof designated as Subordinated Debt and any other Debt of the
Borrower or any Subsidiary contractually subordinated in right and time of
payment to the Obligations on terms and conditions (including, without
limitation, amount, interest rate, amortization and maturity) satisfactory to
the Required Lenders.
"Subsidiary" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent
(50%) of the outstanding capital stock
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or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other managers of such corporation, partnership,
limited liability company or other entity is at the time, directly or
indirectly, owned by or the management is otherwise controlled by such Person
(irrespective of whether, at the time, capital stock or other ownership
interests of any other class or classes of such corporation, partnership,
limited liability company or other entity shall have or might have voting power
by reason of the happening of any contingency). Unless otherwise qualified
references to "Subsidiary" or "Subsidiaries" herein shall refer to those of the
Borrower.
"Taxes" shall have the meaning assigned thereto in Section 4.11(a).
"Termination Date" means the earliest of the dates referred to in Section
2.6.
"Termination Event" means: (a) a "Reportable Event" described in Section
4043 of ERISA, or (b) the withdrawal of the Borrower or any ERISA Affiliate
from a Pension Plan during a plan year in which it was a "substantial employer"
as defined in Section 4001(a)(2) of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the
treatment of a Pension Plan amendment as a termination under Section 4041 of
ERISA, or (d) the institution of proceedings to terminate, or the appointment
of a trustee with respect to, any Pension Plan by the PBGC, or (e) any other
event or condition which would constitute grounds under Section 4042(a) of
ERISA for the termination of, or the appointment of a trustee to administer,
any Pension Plan, or (f) the partial or complete withdrawal of the Borrower or
any ERISA Affiliate from a Multiemployer Plan, or (g) the imposition of a Lien
pursuant to Section 412 of the Code or Section 302 of ERISA, or (h) any event
or condition which results in the reorganization or insolvency of a
Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i) any event or
condition which results in the termination of a Multiemployer Plan under
Section 4041A of ERISA or the institution by PBGC of proceedings to terminate a
Multiemployer Plan under Section 4042 of ERISA.
"Total Debt" means, as of any date of determination with respect to the
Borrower and its Subsidiaries on a Consolidated basis without duplication, the
sum of all Debt of the Borrower and its Subsidiaries.
"Uniform Customs" the Uniform Customs and Practice for Documentary
Credits (1994 Revision), International Chamber of Commerce Publication No. 500.
"UCC" means the Uniform Commercial Code as in effect in the State of
North Carolina, as amended, restated or otherwise modified.
"United States" means the United States of America.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by the Borrower and/or one or more
of its Wholly-Owned Subsidiaries.
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SECTION 1.2 General. Unless otherwise specified, a reference in
this Agreement to a particular section, subsection, Schedule or Exhibit is a
reference to that section, subsection, Schedule or Exhibit of this Agreement.
Wherever from the context it appears appropriate, each term stated in either
the singular or plural shall include the singular and plural, and pronouns
stated in the masculine, feminine or neuter gender shall include the masculine,
the feminine and the neuter. Any reference herein to "Charlotte time" shall
refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings
when used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Loans. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make Loans to the Borrower from time
to time from the Closing Date through the Termination Date as requested by the
Borrower in accordance with the terms of Section 2.2; provided, that (a) the
aggregate principal amount of all outstanding Loans (after giving effect to any
amount requested) shall not exceed the lesser of (i) the Available Commitment
or (ii) the Aggregate Commitment, in each case, less the sum of all outstanding
L/C Obligations and (b) the principal amount of outstanding Loans from any
Lender to the Borrower shall not at any time exceed such Lender's Commitment
less such Lender's Commitment Percentage of outstanding L/C Obligations. Each
Loan by a Lender shall be in a principal amount equal to such Lender's
Commitment Percentage of the aggregate principal amount of Loans requested on
such occasion. Subject to the terms and conditions hereof, the Borrower may
borrow, repay and reborrow Loans hereunder until the Termination Date.
SECTION 2.2 Procedure for Advances of Revolving Credit and
Swingline Loans.
(a) Requests for Borrowing. The Borrower shall give the
Administrative Agent irrevocable prior written notice in the form attached
hereto as Exhibit B (a "Notice of Borrowing") not later than 11:00 a.m.
(Charlotte time) (i) on the same Business Day as each Base Rate Loan and (ii)
at least three (3) Business Days before each LIBOR Rate Loan, of its intention
to borrow, specifying (A) the date of such borrowing, which shall be a Business
Day, (B) the amount of such borrowing, which shall be in an amount equal to the
maximum amount then available to the Borrower pursuant to Section 2.1, or if
less, (x) with respect to Base Rate
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Loans in an aggregate principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof and (y) with respect to LIBOR Rate Loans in an
aggregate principal amount of $3,000,000 or a whole multiple of $1,000,000 in
excess thereof, (C) whether the Loans are to be LIBOR Rate Loans or Base Rate
Loans, and (E) in the case of a LIBOR Rate Loan, the duration of the Interest
Period applicable thereto. Notices received after 11:00 a.m. (Charlotte time)
shall be deemed received on the next Business Day. The Administrative Agent
shall promptly notify the Lenders of each Notice of Borrowing.
(b) Disbursement of Loans. Not later than 2:00 p.m. (Charlotte time)
on the proposed borrowing date, each Lender will make available to the
Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative
Agent, such Lender's Commitment Percentage of the Loans to be made on such
borrowing date. The Borrower hereby irrevocably authorizes the Administrative
Agent to disburse the proceeds of each borrowing requested pursuant to this
Section 2.2 in immediately available funds by crediting or wiring such proceeds
to the deposit account of the Borrower identified in the most recent notice
substantially in the form of Exhibit C hereto (a "Notice of Account
Designation") delivered by the Borrower to the Administrative Agent or may be
otherwise agreed upon by the Borrower and the Administrative Agent from time to
time. Subject to Section 4.7 hereof, the Administrative Agent shall not be
obligated to disburse the portion of the proceeds of any Loan requested
pursuant to this Section 2.2 to the extent that any Lender has not made
available to the Administrative Agent its Commitment Percentage of such Loan.
SECTION 2.3 Repayment of Loans.
(a) Repayment on Termination Date. The Borrower shall repay the
outstanding principal amount of all Loans in full on the Termination Date, with
all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Excess Loans. If at any time the
outstanding principal amount of all Loans exceeds the lesser of (i) the
Available Commitment or (ii) the Aggregate Commitment, less, in each case, the
sum of all outstanding L/C Obligations, the Borrower shall (i) repay the Loans
immediately upon notice from the Administrative Agent, by payment to the
Administrative Agent for the account of the Lenders or (ii) furnish cash
collateral reasonably satisfactory to the Administrative Agent and/or repay the
L/C Obligations in an amount equal to such excess. Such cash collateral shall
be applied in accordance with Section 11.2(b). Each such repayment shall be
accompanied by any amount required to be paid pursuant to Section 4.9 hereof.
(c) Optional Repayments. The Borrower may at any time and from time
to time repay the Loans, in whole or in part, upon at least three (3) Business
Days' irrevocable notice to the Administrative Agent with respect to LIBOR Rate
Loans and one (1) Business Day irrevocable notice with respect to Base Rate
Loans in the form attached hereto as Exhibit D (a "Notice of Prepayment")
specifying the date and amount of repayment and whether the repayment is of
LIBOR Rate Loans or Base Rate Loans or a combination thereof, and, if of a
combination thereof, the amount allocable to each. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender. If any
such notice is given, the amount
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specified in such notice shall be due and payable on the date set forth in such
notice. Partial repayments shall be in an aggregate amount of $1,000,000 or a
whole multiple of $500,000 in excess thereof with respect to Base Rate Loans and
$3,000,000 or a whole multiple of $1,000,000 in excess thereof with respect to
LIBOR Rate Loans. Each such repayment shall be accompanied by any amount
required to be paid pursuant to Section 4.9 hereof.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrower may
not repay any LIBOR Rate Loan on any day other than on the last day of the
Interest Period applicable thereto unless such repayment is accompanied by any
amount required to be paid pursuant to Section 4.9 hereof.
SECTION 2.4 Notes. Each Lender's Loans and the obligation of the
Borrower to repay such Loans shall be evidenced by a separate Note executed by
the Borrower payable to the order of such Lender representing the Borrower's
obligation to pay such Lender's Commitment or, if less, the aggregate unpaid
principal amount of all Loans made and to be made by such Lender to the
Borrower hereunder, plus interest and all other fees, charges and other amounts
due thereon. Each Note shall be dated the date hereof and shall bear interest
on the unpaid principal amount thereof at the applicable interest rate per
annum specified in Section 4.1.
SECTION 2.5 Permanent Reduction of the Aggregate Commitment.
(a) Voluntary Permanent Reduction. The Borrower shall have the right
at any time and from time to time, upon at least five (5) Business Days prior
written notice to the Administrative Agent, to permanently reduce, without
premium or penalty, (i) the entire Aggregate Commitment at any time or (ii)
portions of the Aggregate Commitment, from time to time, in an aggregate
principal amount not less than $3,000,000 or any whole multiple of $1,000,000
in excess thereof.
(b) Mandatory Permanent Reductions. The Aggregate Commitment and the
Available Commitment shall be permanently reduced by the following amounts on
the corresponding dates as follows:
(i) Insurance Proceeds. One hundred percent (100%) of Net
Cash Proceeds received by the Borrower or any Subsidiary thereof in excess of
$1,000,000 in the aggregate during any twelve (12) month period or $5,000,000 in
the aggregate during the term of this Agreement under any policy of insurance;
provided, that so long as no Default or Event of Default then exists, such Net
Cash Proceeds may be used to finance the repair or replacement of damaged assets
or to purchase like assets within one hundred and twenty days (120) after
receipt thereof;
(ii) Sale of Assets. One hundred percent (100%) of Net Cash
Proceeds received by the Borrower or any Subsidiary thereof in connection with
the sale of assets (other than a sale of assets permitted pursuant to Sections
10.6(a)-(d)); provided, that so long as no Default or Event of Default then
exists, such Net Cash Proceeds may be used to purchase like assets within one
hundred and twenty (120) days after receipt thereof; and
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(iii) Proceeds from Debt Offerings. One hundred percent
(100%) of Net Cash Proceeds from any Debt issued by the Borrower or any
Subsidiary thereof within three (3) Business Days of receipt thereof by the
Borrower or such Subsidiary.
(c) Additional Payments. Each permanent reduction permitted or
required pursuant to this Section 2.5 shall be accompanied by a payment of
principal sufficient to reduce the aggregate outstanding Extensions of Credit
of the Lenders after such reduction to the Aggregate Commitment as so reduced
and if the Aggregate Commitment as so reduced is less than the aggregate amount
of all outstanding Letters of Credit, the Borrower shall be required to deposit
in a cash collateral account opened by the Administrative Agent an amount equal
to the aggregate then undrawn and unexpired amount of such Letters of Credit.
Any reduction of the Aggregate Commitment to zero shall be accompanied by
payment of all outstanding Obligations (and furnishing of cash collateral
satisfactory to the Administrative Agent for all L/C Obligations) and shall
result in the termination of the Commitments and Credit Facility. Such cash
collateral shall be applied in accordance with Section 11.2(b). If the
reduction of the Aggregate Commitment requires the repayment of any LIBOR Rate
Loan, such repayment shall be accompanied by any amount required to be paid
pursuant to Section 4.9 hereof.
SECTION 2.6 Termination of Credit Facility. The Credit Facility
shall terminate on the earliest of (a) February 17, 2002, (b) the date of
termination by the Borrower pursuant to Section 2.5, and (c) the date of
termination by the Administrative Agent on behalf of the Lenders pursuant to
Section 11.2(a).
SECTION 2.7 Use of Proceeds. The Borrower shall use the proceeds
of the Extensions of Credit (a) to finance Permitted Acquisitions pursuant to
Section 10.4(c), (b) to finance the Netcom Acquisition, and (c) for working
capital and general corporate requirements of the Borrower and its
Subsidiaries, including the payment of certain fees and expenses incurred in
connection with the transactions contemplated herein.
SECTION 2.8 Increase in Commitments. Subject to Section 8.12(d),
the Borrower shall have the right, on thirty (30) calendar days' prior written
notice to the Administrative Agent, so long as no Default or Event of Default
shall have occurred and be continuing (or would result therefrom), with the
consent of the Required Lenders to increase the total amount of the Aggregate
Commitments hereunder by (a) first, accepting the offer of any existing Lender
or Lenders to increase its (or their) Commitment (or Commitments) up to the
amount of any such increase (which increase shall be offered first to the
Administrative Agent, then (to the extent any such increase is not fully
underwritten by the Administrative Agent) to the existing other Lenders); and/or
(b) second, accepting the offer or offers of any Person or Persons (not then a
Lender) constituting an Eligible Assignee to become a new Lender hereto with a
Commitment or Commitments up to the amount (or aggregate amount) of any such
increase to the extent any such increase is not fully underwritten by the
Administrative Agent or existing Lenders; provided, that (i) in no event shall
any Lender's Commitment be increased without the consent of such Lender, (ii) if
any Loans are outstanding hereunder on the date that any such increase is to
become effective, the Administrative Agent shall make such transfers of funds as
are necessary in order that the outstanding balance of such Loans reflect the
Commitment Percentages of the Lenders after giving effect to any increase
pursuant to this Section 2.8, (iii)
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each such increase shall be in minimum amounts of at least Five Million Dollars
($5,000,000) and (iv) in no event shall any such increase result in the amount
of the Aggregate Commitment exceeding $200,000,000. Any increase to the
Aggregate Commitment pursuant to clause (a) of the first sentence of this
Section 2.8 shall become effective upon the execution of a Commitment Increase
Supplement in the form of Exhibit I-1 hereto, executed by the Borrower, the
Administrative Agent and the increasing Lender or Lenders and any increase to
the Aggregate Commitment pursuant to clause (b) of the first sentence of this
Section 2.8 shall become effective upon the execution of a New Lender Supplement
in the form of Exhibit I-2 hereto by the Borrower, the Administrative Agent and
relevant new Lender or Lenders. The Administrative Agent shall forward copies
of any such supplement to the Lenders promptly upon receipt thereof.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions
hereof, the Issuing Lender, in reliance on the agreements of the other Lenders
set forth in Section 3.4(a), agrees to issue standby letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day from
the Closing Date through but not including the Termination Date in such form as
may be approved from time to time by the Issuing Lender; provided, that the
Issuing Lender shall have no obligation to issue any Letter of Credit if, after
giving effect to such issuance, (a) the L/C Obligations would exceed the L/C
Commitment or (b) the principal amount of outstanding Loans from any Lender to
the Borrower would exceed such Lender's Commitment less such Lender's
Commitment Percentage of outstanding Letter of Credit obligations. Each Letter
of Credit shall (i) be denominated in Dollars in a minimum amount of $500,000,
(ii) be a standby letter of credit issued to support obligations of the
Borrower or any of its Subsidiaries, contingent or otherwise, incurred in the
ordinary course of business, (iii) expire on a date reasonably satisfactory to
the Issuing Lender, which date shall be no later than the Termination Date and
(iv) be subject to the Uniform Customs and, to the extent not inconsistent
therewith, the laws of the State of North Carolina. The Issuing Lender shall
not at any time be obligated to issue any Letter of Credit hereunder if such
issuance would conflict with, or cause the Issuing Lender or any L/C Participant
to exceed any limits imposed by any Applicable Law. References herein to
"issue" and derivations thereof with respect to Letters of Credit shall also
include extensions or modifications of any existing Letters of Credit, unless
the context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The
Borrower may from time to time request that the Issuing Lender issue a Letter
of Credit by delivering to the Issuing Lender at the Administrative Agent's
Office an Application therefor, completed to the satisfaction of the Issuing
Lender, and such other certificates, documents and other papers and information
as the Issuing Lender may request. Upon receipt of any Application, the
Issuing Lender shall process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall, subject to Section 3.1 and
Article V hereof, promptly issue the Letter of Credit
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requested thereby (but in no event shall the Issuing Lender be required to issue
any Letter of Credit earlier than three (3) Business Days after its receipt of
the Application therefor and all such other certificates, documents and other
papers and information relating thereto) by issuing the original of such Letter
of Credit to the beneficiary thereof or as otherwise may be agreed by the
Issuing Lender and the Borrower. The Issuing Lender shall promptly furnish to
the Borrower a copy of such Letter of Credit and promptly notify each Lender of
the issuance and upon request by any Lender, furnish to such Lender a copy of
such Letter of Credit and the amount of such Lender's participation therein.
SECTION 3.3 Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for the
account of the Issuing Lender and the L/C Participants, a letter of credit
commission with respect to each Letter of Credit in an amount equal to the face
amount of such Letter of Credit multiplied by the Applicable Margin for LIBOR
Rate Loans (determined on a per annum basis). Such commission shall be payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Termination Date.
(b) In addition to the foregoing commission, the Borrower shall pay
the Issuing Lender and the Letter of Credit Participants an issuance fee of
0.125% percent per annum on the face amount of each Letter of Credit, payable
quarterly in arrears on the last Business Day of each calendar quarter and on
the Termination Date.
(c) The Administrative Agent shall, promptly following its receipt
thereof, distribute to the Issuing Lender and the L/C Participants all
commissions received by the Administrative Agent in accordance with their
respective Commitment Percentages.
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Commitment Percentage in
the Issuing Lender's obligations and rights under each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Lender thereunder.
Each L/C Participant unconditionally and irrevocably agrees with the Issuing
Lender that, if a draft is paid under any Letter of Credit for which the Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms of
this Agreement, such L/C Participant shall pay to the Issuing Lender upon demand
at the Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Commitment Percentage of the amount of such draft, or any
part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify
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each L/C Participant of the amount and due date of such required payment and
such L/C Participant shall pay to the Issuing Lender the amount specified on the
applicable due date. If any such amount is paid to the Issuing Lender after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand, in addition to such amount, the product of (i) such amount, times
(ii) the daily average Federal Funds Rate as determined by the Administrative
Agent during the period from and including the date such payment is due to the
date on which such payment is immediately available to the Issuing Lender, times
(iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. A certificate of the Issuing
Lender with respect to any amounts owing under this Section 3.4(b) shall be
conclusive in the absence of manifest error. With respect to payment to the
Issuing Lender of the unreimbursed amounts described in this Section 3.4(b), if
the L/C Participants receive notice that any such payment is due (A) prior to
1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due that
Business Day, and (B) after 1:00 p.m. (Charlotte time) on any Business Day, such
payment shall be due on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Commitment Percentage of such payment in accordance with this Section 3.4, the
Issuing Lender receives any payment related to such Letter of Credit (whether
directly from the Borrower or otherwise) or any payment of interest on account
thereof, the Issuing Lender will distribute to such L/C Participant its pro
rata share thereof; provided, that in the event that any such payment received
by the Issuing Lender shall be required to be returned by the Issuing Lender,
such L/C Participant shall return to the Issuing Lender the portion thereof
previously distributed by the Issuing Lender to it.
SECTION 3.5 Reimbursement Obligation of the Borrower. The Borrower
agrees to reimburse the Issuing Lender on each date on which the Issuing Lender
notifies the Borrower of the date and amount of a draft paid under any Letter
of Credit for the amount of (a) such draft so paid and (b) any taxes, fees,
charges or other costs or expenses incurred by the Issuing Lender in connection
with such payment. Each such payment shall be made to the Issuing Lender at
its address for notices specified herein in lawful money of the United States
and in immediately available funds. Interest shall be payable on any and all
amounts remaining unpaid by the Borrower under this Article III from the date
such amounts become payable (whether at stated maturity, by acceleration or
otherwise) until payment in full at the rate which would be payable on any
outstanding Base Rate Loans which were then overdue. If the Borrower fails to
timely reimburse the Issuing Lender on the date the Borrower receives the notice
referred to in this Section 3.5, the Borrower shall be deemed to have timely
given a Notice of Borrowing hereunder to the Administrative Agent requesting the
Lenders to make a Base Rate Loan on such date in an amount equal to the amount
of such drawing and, regardless of whether or not the conditions precedent
specified in Article V have been satisfied, the Lenders shall make Base Rate
Loans in such amount, the proceeds of which shall be applied to reimburse the
Issuing Lender for the amount of the related drawing and costs and expenses.
SECTION 3.6 Obligations Absolute. The Borrower's obligations under
this Article III (including without limitation the Reimbursement Obligation)
shall be absolute and unconditional under any and all circumstances and
irrespective of any set-off, counterclaim or defense to payment which the
Borrower may have or have had against the Issuing Lender or any
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beneficiary of a Letter of Credit. The Borrower also agrees with the Issuing
Lender that the Issuing Lender shall not be responsible for, and the Borrower's
Reimbursement Obligation under Section 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon,
even though such documents shall in fact prove to be invalid, fraudulent or
forged, or any dispute between or among the Borrower and any beneficiary of any
Letter of Credit or any other party to which such Letter of Credit may be
transferred or any claims whatsoever of the Borrower against any beneficiary of
such Letter of Credit or any such transferee. The Issuing Lender shall not be
liable for any error, omission, interruption or delay in transmission, dispatch
or delivery of any message or advice, however transmitted, in connection with
any Letter of Credit, except for errors or omissions caused by the Issuing
Lender's gross negligence or willful misconduct. The Borrower agrees that any
action taken or omitted by the Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct and in accordance with the standards of
care specified in the Uniform Customs and, to the extent not inconsistent
therewith, the UCC shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender to the Borrower. The responsibility of the
Issuing Lender to the Borrower in connection with any draft presented for
payment under any Letter of Credit shall, in addition to any payment obligation
expressly provided for in such Letter of Credit, be limited to determining that
the documents (including each draft) delivered under such Letter of Credit in
connection with such presentment are in conformity with such Letter of Credit.
SECTION 3.7 Effect of Application. To the extent that
any provision of any Application related to any Letter of Credit is
inconsistent with the provisions of this Article III, the provisions of this
Article III shall apply.
ARTICLE IV
GENERAL LOAN PROVISIONS
SECTION 4.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
4.1, at the election of the Borrower, the aggregate principal balance of the
Notes or any portion thereof shall bear interest at (A) the Base Rate plus the
Applicable Margin as set forth in Section 4.1(c) or (B) the LIBOR Rate plus the
Applicable Margin as set forth in Section 4.1(c); provided that the LIBOR Rate
shall not be available until three (3) Business Days after the Closing Date.
The Borrower shall select the rate of interest and Interest Period, if any,
applicable to any Loan at the time a Notice of Borrowing is given pursuant to
Section 2.2 or at the time a Notice of Conversion/Continuation is given
pursuant to Section 4.2. Each Loan or portion thereof bearing interest based
on the Base Rate shall be a "Base Rate Loan", each Loan or portion thereof
bearing interest based on the LIBOR Rate shall be a "LIBOR Rate Loan." Any
Loan or any portion thereof as to which the Borrower has not duly specified an
interest rate as provided herein shall be deemed a Base Rate Loan.
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(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 4.1(a), shall
elect an interest period (each, an "Interest Period") to be applicable to such
Loan, which Interest Period shall be a period of one (1), two (2), three (3),
or six (6) months with respect to each LIBOR Rate Loan; provided that:
(i) the Interest Period shall commence on the date of
advance of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence on
the date on which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a
day that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with respect to
a LIBOR Rate Loan would otherwise expire on a day that is not a Business Day
but is a day of the month after which no further Business Day occurs in such
month, such Interest Period shall expire on the next preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate
Loan that begins on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of the relevant
calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the
Termination Date; and
(v) there shall be no more than five (5) Interest
Periods outstanding at any time.
(c) Applicable Margin. The Applicable Margin provided for in Section
4.1(a) with respect to the Loans (the "Applicable Margin") shall (i) from the
Closing Date until the delivery of the Officer's Compliance Certificate and
related financial statements for the fiscal quarter ending on March 31, 1999,
equal Level I pricing and (ii) for each fiscal quarter thereafter be determined
by reference to the Leverage Ratio as of the end of the fiscal quarter
immediately preceding the delivery of the applicable Officer's Compliance
Certificate as follows:
Total Xxxx/ Xxxxxxxxxx Xxxxxxxxxx Xxxx
Xxxxx XXXXXX XXXXX Margin Rate Margin
----- ------ ------------ -----------
Level I >2.50 2.00% 1.00%
-
Level II >2.00 1.75% 0.75%
-
Level III >1.50 1.50% 0.50%
-
Level IV <1.50 1.25% 0.25%
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent on the fifth (5th) Business Day after receipt by the
Administrative Agent of quarterly financial statements for the Borrower and its
Subsidiaries and the accompanying Officer's Compliance Certificate setting
forth the Leverage Ratio of the Borrower and its Subsidiaries as of the most
recent fiscal quarter end. Subject to Section 4.1(d), in the event the
Borrower fails to deliver such financial statements and certificate within the
time required by Sections 7.1 and 7.2, the Applicable Margin shall be the
highest Applicable Margin set forth above until the delivery of such financial
statements and certificate.
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(d) Default Rate. Subject to Section 11.3, at the discretion of the
Administrative Agent and the Required Lenders, upon the occurrence and during
the continuance of an Event of Default, (i) the Borrower shall no longer have
the option to request LIBOR Rate Loans, (ii) all outstanding LIBOR Rate Loans
shall bear interest at a rate per annum two percent (2%) in excess of the rate
then applicable to LIBOR Rate Loans, as applicable, until the end of the
applicable Interest Period and thereafter at a rate equal to two percent (2%)
in excess of the rate then applicable to Base Rate Loans, and (iii) all
outstanding Base Rate Loans shall bear interest at a rate per annum equal to
two percent (2%) in excess of the rate then applicable to Base Rate Loans.
Interest shall continue to accrue on the Notes after the filing by or against
the Borrower of any petition seeking any relief in bankruptcy or under any act
or law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
(e) Interest Payment and Computation. Interest on each Base Rate
Loan shall be payable in arrears on the last Business Day of each calendar
quarter commencing March 31, 1999; and interest on each LIBOR Rate Loan shall
be payable on the last day of each Interest Period applicable thereto, and if
such Interest Period extends over three (3) months, at the end of each three
(3) month interval during such Interest Period. Interest on LIBOR Rate Loans
and all fees payable hereunder shall be computed on the basis of a 360-day year
and assessed for the actual number of days elapsed and interest on Base Rate
Loans shall be computed on the basis of a 365/66-day year and assessed for the
actual number of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrower any interest received by
Lenders in excess of the maximum lawful rate or (ii) shall apply such excess to
the principal balance of the Obligations. It is the intent hereof that the
Borrower not pay or contract to pay, and that neither the Administrative Agent
nor any Lender receive or contract to receive, directly or indirectly in any
manner whatsoever, interest in excess of that which may be paid by the Borrower
under Applicable Law.
SECTION 4.2 Notice and Manner of Conversion or Continuation
of Loans. Provided that no Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time
following the third Business Day after the Closing Date all or any portion of
its outstanding Base Rate Loans in a principal amount equal to $3,000,000 or
any whole multiple of $1,000,000 in excess thereof into one or more LIBOR Rate
Loans and (b) upon the expiration of any Interest Period, (i) convert all or
any part of its outstanding LIBOR Rate Loans in a principal amount equal to
$1,000,000 or a whole multiple of $500,000 in excess thereof into Base Rate
Loans or (ii) continue such LIBOR Rate Loans as LIBOR Rate Loans. Whenever the
Borrower desires to convert or continue Loans as provided above, the Borrower
shall give the Administrative Agent irrevocable prior written notice in the
form attached as
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Exhibit E (a "Notice of Conversion/ Continuation") not later than 11:00 a.m.
(Charlotte time) three (3) Business Days before the day on which a proposed
conversion or continuation of such Loan is to be effective specifying (A) the
Loans to be converted or continued, and, in the case of any LIBOR Rate Loan to
be converted or continued, the last day of the Interest Period therefor, (B) the
effective date of such conversion or continuation (which shall be a Business
Day), (C) the principal amount of such Loans to be converted or continued, and
(D) the Interest Period to be applicable to such converted or continued LIBOR
Rate Loan. The Administrative Agent shall promptly notify the Lenders of such
Notice of Conversion/Continuation.
SECTION 4.3 Fees.
(a) Commitment Fee. The Borrower shall pay to the Administrative
Agent, for the account of the Lenders, a non-refundable commitment fee on the
average monthly un-utilized portion of the Aggregate Commitment, such
commitment fee equal to (i) 0.50% per annum if the average monthly utilized
portion of the Aggregate Commitment equals or exceeds fifty percent (50%) of
the Credit Facility or (ii) 0.75% per annum if the average monthly utilized
portion of the Aggregate Commitment is less than fifty percent (50%) of the
Credit Facility. The commitment fee shall be payable in arrears on the last
Business Day of each calendar quarter during the term of this Agreement
commencing March 31, 1999, and on the Termination Date. Such commitment fee
shall be distributed by the Administrative Agent to the Lenders pro rata in
accordance with the Lenders' respective Commitment Percentages.
(b) Administrative Agent's and Other Fees. In order to compensate
the Administrative Agent for structuring and syndicating the Loans and for its
obligations hereunder, the Borrower agrees to pay to the Administrative Agent,
for its account, the fees set forth in the separate fee letter agreement
executed by the Borrower, the Arranger and the Administrative Agent and dated
January 9, 1999.
SECTION 4.4 Manner of Payment. Each payment by the Borrower on
account of the principal of or interest on the Loans or of any fee, commission
or other amounts (including the Reimbursement Obligation) payable to the
Lenders under this Agreement or any Note shall be made not later than 1:00 p.m.
(Charlotte time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account of
the Lenders (other than as set forth below) pro rata in accordance with their
respective Commitment Percentages (except as specified below), in Dollars, in
immediately available funds and shall be made without any set-off, counterclaim
or deduction whatsoever. Any payment received after such time but before 2:00
p.m. (Charlotte time) on such day shall be deemed a payment on such date for
the purposes of Section 11.1, but for all other purposes shall be deemed to
have been made on the next succeeding Business Day. Any payment received after
2:00 p.m. (Charlotte time) shall be deemed to have been made on the next
succeeding Business Day for all purposes. Upon receipt by the Administrative
Agent of each such payment, the Administrative Agent shall distribute to each
Lender at its address for notices set forth herein its pro rata share of such
payment in accordance with such Lender's Commitment Percentage (except as
specified below) and shall wire advice of the amount of such credit to each
Lender. Each payment to the Administrative Agent of the Issuing Lender's fees
or L/C Participants' commissions shall be
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made in like manner, but for the account of the Issuing Lender or the L/C
Participants, as the case may be. Each payment to the Administrative Agent of
Administrative Agent's fees or expenses shall be made for the account of the
Administrative Agent and any amount payable to any Lender under Sections 4.8,
4.9, 4.10, 4.11 or 13.2 shall be paid to the Administrative Agent for the
account of the applicable Lender. Subject to Section 4.1(b)(ii) if any payment
under this Agreement or any Note shall be specified to be made upon a day which
is not a Business Day, it shall be made on the next succeeding day which is a
Business Day and such extension of time shall in such case be included in
computing any interest if payable along with such payment.
SECTION 4.5 Crediting of Payments and Proceeds. In the event that
the Borrower shall fail to pay any of the Obligations when due and the
Obligations have been accelerated pursuant to Section 11.2, all payments
received by the Lenders upon the Notes and the other Obligations and all net
proceeds from the enforcement of the Obligations shall be applied first to all
expenses then due and payable by the Borrower hereunder, then to all indemnity
obligations then due and payable by the Borrower hereunder, then to all
Administrative Agent's and Issuing Lender's fees then due and payable, then to
all commitment and other fees and commissions then due and payable, then to
accrued and unpaid interest on the Notes, the Reimbursement Obligations and any
termination payments due in respect of a Hedging Agreement with any Lender
(which Hedging Agreement is permitted or required hereunder) (pro rata in
accordance with all such amounts due), then to the principal amount of the
Notes and Reimbursement Obligations (pro rata in accordance with all such
amounts due) and then to the cash collateral account described in Section
11.2(b) hereof to the extent of any L/C Obligations then outstanding, in that
order.
SECTION 4.6 Adjustments. If any Lender (a "Benefitted Lender")
shall at any time receive any payment of all or part of the Obligations owing
to it, or interest thereon, or if any Lender shall at any time receive any
collateral in respect to the Obligations owing to it (whether voluntarily or
involuntarily, by set-off or otherwise) in a greater proportion than any such
payment to and collateral received by any other Lender, if any, in respect of
the Obligations owing to such other Lender, or interest thereon, such Benefitted
Lender shall purchase for cash from the other Lenders such portion of each such
other Lender's Extensions of Credit, or shall provide such other Lenders with
the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, that if all or any portion of such excess payment or benefits is
thereafter recovered from such Benefitted Lender, such purchase shall be
rescinded, and the purchase price and benefits returned to the extent of such
recovery, but without interest. The Borrower agrees that each Lender so
purchasing a portion of another Lender's Extensions of Credit may exercise all
rights of payment (including, without limitation, rights of set-off) with
respect to such portion as fully as if such Lender were the direct holder of
such portion.
SECTION 4.7 Nature of Obligations of Lenders Regarding Extensions
of Credit; Assumption by the Administrative Agent. The obligations of the
Lenders under this Agreement to make the Loans and issue or participate in
Letters of Credit are several and are not joint or joint and several. Unless
the Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
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Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Section 2.2(b) and the Administrative Agent may, in reliance
upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, times (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, times (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in
accordance with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section shall
be conclusive, absent manifest error. If such Lender's Commitment Percentage
of such borrowing is not made available to the Administrative Agent by such
Lender within three (3) Business Days of such borrowing date, the
Administrative Agent shall be entitled to recover such amount made available by
the Administrative Agent with interest thereon at the rate per annum applicable
to Base Rate Loans hereunder, on demand, from the Borrower. The failure of any
Lender to make available its Commitment Percentage of any Loan requested by the
Borrower shall not relieve it or any other Lender of its obligation, if any,
hereunder to make its Commitment Percentage of such Loan available on the
borrowing date, but no Lender shall be responsible for the failure of any other
Lender to make its Commitment Percentage of such Loan available on the
borrowing date.
SECTION 4.8 Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. If with respect
to any Interest Period the Administrative Agent or any Lender (after
consultation with Administrative Agent) shall determine that, by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars, in the applicable amounts are not being quoted via
Telerate Page 3750 or offered to the Administrative Agent or such Lender for
such Interest Period, then the Administrative Agent shall forthwith give notice
thereof to the Borrower. Thereafter, until the Administrative Agent notifies
the Borrower that such circumstances no longer exist (which notification shall
be given promptly, but in any event within thirty (30) days after the
Administrative Agent obtains actual knowledge that such circumstances no longer
exist), the obligation of the Lenders to make LIBOR Rate Loans and the right of
the Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan
shall be suspended, and the Borrower shall repay in full (or cause to be repaid
in full) the then outstanding principal amount of each such LIBOR Rate Loan
together with accrued interest thereon, on the last day of the then current
Interest Period applicable to such LIBOR Rate Loan or convert the then
outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan
as of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date
hereof, the introduction of, or any change in, any Applicable Law or any change
in the interpretation or
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administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by any Lender (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of any such Authority,
central bank or comparable agency, shall make it unlawful or impossible for any
of the Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any LIBOR Rate Loan, such Lender shall
promptly give notice thereof to the Administrative Agent and the Administrative
Agent shall promptly give notice to the Borrower and the other Lenders.
Thereafter, until the Administrative Agent notifies the Borrower that such
circumstances no longer exist (which notification shall be given promptly, but
in any event within thirty (30) days after the Administrative Agent obtains
actual knowledge that such circumstances no longer exist), (i) the obligations
of the Lenders to make LIBOR Rate Loans and the right of the Borrower to convert
any Loan or continue any Loan as a LIBOR Rate Loan shall be suspended and
thereafter the Borrower may select only Base Rate Loans hereunder, and (ii) if
any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan to
the end of the then current Interest Period applicable thereto as a LIBOR Rate
Loan, the applicable LIBOR Rate Loan shall immediately be converted to a Base
Rate Loan for the remainder of such Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of,
or any change in, any Applicable Law, or in the interpretation or
administration thereof by any Governmental Authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by any of the Lenders (or any of their respective Lending Offices)
with any request or directive (whether or not having the force of law) of such
Authority, central bank or comparable agency:
(i) shall subject any of the Lenders (or any of their
respective Lending Offices) to any tax, duty or other charge with respect to
any Note, Letter of Credit or Application or shall change the basis of taxation
of payments to any of the Lenders (or any of their respective Lending Offices)
of the principal of or interest on any Note, Letter of Credit or Application or
any other amounts due under this Agreement in respect thereof (except for
changes in the rate of tax on the overall net income of any of the Lenders or
any of their respective Lending Offices imposed by the jurisdiction in which
such Lender is organized or is or should be qualified to do business or such
Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
Note;
and the result of any of the foregoing is to increase the costs to any of the
Lenders of maintaining any LIBOR Rate Loan or issuing or participating in
Letters of Credit or to reduce the yield or amount of any sum received or
receivable by any of the Lenders under this Agreement or under the Notes in
respect of a LIBOR Rate Loan or Letter of Credit or Application, then such
Lender shall promptly notify the Administrative Agent, and the Administrative
Agent shall promptly
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notify the Borrower of such fact and demand compensation therefor and, within
fifteen (15) days after such notice by the Administrative Agent, the Borrower
shall pay to such Lender such additional amount or amounts as will compensate
such Lender or Lenders for such increased cost or reduction. The Administrative
Agent will promptly notify the Borrower of any event of which it has knowledge
which will entitle such Lender to compensation pursuant to this Section 4.8(c);
provided, that the Administrative Agent shall incur no liability whatsoever to
the Lenders or the Borrower in the event it fails to do so. The amount of such
compensation shall be determined, in the applicable Lender's sole discretion,
based upon the assumption that such Lender funded its Commitment Percentage of
the LIBOR Rate Loans in the London interbank market and using any reasonable
attribution or averaging methods which such Lender deems appropriate and
practical. A certificate of such Lender setting forth the basis for determining
such amount or amounts necessary to compensate such Lender shall be forwarded to
the Borrower through the Administrative Agent and shall be conclusively presumed
to be correct save for manifest error.
SECTION 4.9 Indemnity. The Borrower hereby indemnifies
each of the Lenders against any loss or expense which may arise or be
attributable to each Lender's obtaining, liquidating or employing deposits or
other funds acquired to effect, fund or maintain any Loan (a) as a consequence
of any failure by the Borrower to make any payment when due of any amount due
hereunder in connection with a LIBOR Rate Loan, (b) due to any failure of the
Borrower to borrow on a date specified therefor in a Notice of Borrowing or
Notice of Continuation/Conversion or (c) due to any payment, prepayment or
conversion of any LIBOR Rate Loan on a date other than the last day of the
Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Commitment Percentage of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or
averaging methods which such Lender deems appropriate and practical. A
certificate of such Lender setting forth the basis for determining such amount
or amounts necessary to compensate such Lender shall be forwarded to the
Borrower through the Administrative Agent and shall be conclusively presumed to
be correct save for manifest error.
SECTION 4.10 Capital Requirements. If either (a) the introduction
of, or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of
law), has or would have the effect of reducing the rate of return on the
capital of, or has affected or would affect the amount of capital required to
be maintained by, any Lender or any corporation controlling such Lender as a
consequence of, or with reference to the Commitments and other commitments of
this type, below the rate which the Lender or such other corporation could have
achieved but for such introduction, change or compliance, then within five (5)
Business Days after written demand by any such Lender, the Borrower shall pay
to such Lender from time to time as specified by such Lender additional amounts
sufficient to compensate such Lender or other corporation for such reduction.
A certificate as to such amounts submitted to the Borrower and the
Administrative Agent by such Lender, shall, in the absence of manifest error,
be presumed to be correct and binding for all purposes.
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SECTION 4.11 Taxes.
(a) Payments Free and Clear. Any and all payments by the Borrower
hereunder or under the Notes or the Letters of Credit shall be made free and
clear of and without deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholding, and all liabilities with respect
thereto excluding, (i) in the case of each Lender and the Administrative Agent,
income and franchise taxes imposed by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or is
or should be qualified to do business or any political subdivision thereof and
(ii) in the case of each Lender, income and franchise taxes imposed by the
jurisdiction of such Lender's Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder or under any Note or Letter of Credit to any Lender or
the Administrative Agent, (A) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 4.11) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
amount such party would have received had no such deductions been made, (B) the
Borrower shall make such deductions, (C) the Borrower shall pay the full amount
deducted to the relevant taxing authority or other authority in accordance with
Applicable Law, and (D) the Borrower shall deliver to the Administrative Agent
evidence of such payment to the relevant taxing authority or other authority in
the manner provided in Section 4.11(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit, the other Loan Documents, or the perfection of
any rights or security interest in respect thereto (hereinafter referred to as
"Other Taxes").
(c) Indemnity. The Borrower shall indemnify each Lender and the
Administrative Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes and Other Taxes imposed by any jurisdiction on
amounts payable under this Section 4.11) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Such indemnification shall be made within thirty (30) days from the date such
Lender or the Administrative Agent (as the case may be) makes written demand
therefor. The Administrative Agent and the Lenders hereby agree to use
reasonable efforts, at the expense of the Borrower, to obtain a refund of any
such Taxes or Other Taxes which are not correctly or legally asserted.
(d) Evidence of Payment. Within thirty (30) days after the date of
any payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent, at its address referred to in Section 13.1, the original
or a certified copy of a receipt evidencing payment thereof or other evidence
of payment satisfactory to the Administrative Agent.
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(e) Delivery of Tax Forms. Each Lender organized under the laws of a
jurisdiction other than the United States or any state thereof shall deliver to
the Borrower, with a copy to the Administrative Agent, on the Closing Date or
concurrently with the delivery of the relevant Assignment and Acceptance, as
applicable, (i) two United States Internal Revenue Service Forms 4224 or Forms
1001, as applicable (or successor forms) properly completed and certifying in
each case that such Lender is entitled to a complete exemption from withholding
or deduction for or on account of any United States federal income taxes, and
(ii) an Internal Revenue Service Form W-8 or W-9 or successor applicable form,
as the case may be, to establish an exemption from United States backup
withholding taxes. Each such Lender further agrees to deliver to the Borrower,
with a copy to the Administrative Agent, a Form 1001 or 4224 and Form W-8 or
W-9, or successor applicable forms or manner of certification, as the case may
be, on or before the date that any such form expires or becomes obsolete or
after the occurrence of any event requiring a change in the most recent form
previously delivered by it to the Borrower, certifying in the case of a Form
1001 or 4224 that such Lender is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes (unless in any such case an event (including without limitation any change
in treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders such forms inapplicable or
the exemption to which such forms relate unavailable and such Lender notifies
the Borrower and the Administrative Agent that it is not entitled to receive
payments without deduction or withholding of United States federal income taxes)
and, in the case of a Form W-8 or W-9, establishing an exemption from United
States backup withholding tax.
(f) Survival. Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and obligations of the
Borrower contained in this Section 4.11 shall survive the payment in full of
the Obligations and the termination of the Commitments.
SECTION 4.12 Security. The Obligations of the Borrower shall be
secured as provided in the Security Documents.
SECTION 4.13 Change in Lending Office. Each Lender agrees that,
upon the occurrence of any event giving rise to the operation of Section 4.8,
4.9, 4.10 or 4.11 with respect to such Lender, it will use its best efforts to
designate another lending office as its Lending Office for any Loans affected
by such event with the intent of avoiding the consequence of the event giving
rise to the operation of any such Section; provided, that such designation is
made on such terms that such Lender and its Lending Office suffer no economic,
legal or regulatory disadvantage as a consequence thereof.
ARTICLE V
CLOSING; CONDITIONS OF CLOSING AND BORROWING
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SECTION 5.1 Closing. The closing shall take place at the offices of
Kennedy, Covington, Xxxxxxx & Xxxxxxx, L.L.P. at 10:00 a.m. on February 17,
1999 or on such other date as the parties hereto shall mutually agree.
SECTION 5.2 Conditions to Closing and Initial Extensions of Credit.
The obligation of the Lenders to close this Agreement and to make the initial
Loan or issue the initial Letter of Credit is subject to the satisfaction of
each of the following conditions:
(a) Executed Loan Documents. This Agreement, the Notes, and the
Guaranty and Collateral Agreement shall have been duly authorized, executed and
delivered to the Administrative Agent by the parties thereto, shall be in full
force and effect and no default shall exist thereunder, and the Borrower shall
have delivered original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Borrower. The
Administrative Agent shall have received a certificate from a Responsible
Officer, in form and substance satisfactory to the Administrative Agent, to the
effect that all representations and warranties of the Borrower contained in
this Agreement and the other Loan Documents are true, correct and complete;
that the Borrower is not in violation of any of the covenants contained in this
Agreement and the other Loan Documents; that, after giving effect to the
transactions contemplated by this Agreement, no Default or Event of Default has
occurred and is continuing; and that the Borrower has satisfied each of the
closing conditions.
(ii) Certificate of Secretary of the Borrower. The
Administrative Agent shall have received a certificate of the secretary or
assistant secretary of the Borrower certifying as to the incumbency and
genuineness of the signature of each officer of the Borrower executing Loan
Documents to which it is a party and certifying that attached thereto is a
true, correct and complete copy of (A) the certificate of incorporation of the
Borrower and all amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of incorporation, (B)
the bylaws of the Borrower as in effect on the date of such certification, (C)
resolutions duly adopted by the Board of Directors of the Borrower authorizing
the borrowings contemplated hereunder and the execution, delivery and
performance of this Agreement and the other Loan Documents to which it is a
party, and (D) each certificate required to be delivered pursuant to Section
5.2(b)(iii).
(iii) Certificates of Good Standing. To the extent
requested by the Administrative Agent, the Administrative Agent shall have
received long-form certificates as of a recent date of the good standing of the
Borrower under the laws of its jurisdiction of organization and each other
jurisdiction where the Borrower is qualified to do business and a certificate
of the relevant taxing authorities of such jurisdictions certifying that the
Borrower has filed required tax returns and owes no delinquent taxes.
(iv) Opinions of Counsel. The Administrative Agent shall
have received favorable opinions of counsel to the Borrower addressed to the
Administrative Agent
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and the Lenders with respect to the Borrower, the Loan Documents and such other
matters as the Lenders shall reasonably request.
(v) Tax Forms. The Administrative Agent shall have
received copies of the United States Internal Revenue Service forms required by
Section 4.11(e) hereof.
(c) Collateral.
(i) Filings and Recordings. All filings and
recordations that are necessary to perfect the security interests of the
Lenders in the collateral described in the Security Documents (other than the
documents, instruments and filings to be delivered after the Closing Date
pursuant to Section 8.12, leased sites not listed on Schedule 8.12(c), or as
set forth in the Security Documents) shall have been received by the
Administrative Agent and the Administrative Agent shall have received evidence
satisfactory to the Administrative Agent that upon such filings and recordations
such security interests constitute valid and perfected first priority Liens
therein subject to Liens permitted pursuant to Section 10.3.
(ii) Lien Search. The Administrative Agent shall have
received the results of a Lien search (including a search as to judgments,
pending litigation and tax matters) made against the Borrower under the Uniform
Commercial Code (or applicable judicial docket) as in effect in any state in
which any of Borrower's assets are located, indicating among other things that
its assets are free and clear of any Lien except for Liens permitted hereunder.
(iii) Hazard and Liability Insurance. The Administrative
Agent shall have received certificates of insurance, evidence of payment of all
insurance premiums for the current policy year, and, if requested by the
Administrative Agent, copies (certified by a Responsible Officer) of insurance
policies in the form required under the Security Documents and including
business interruption coverage as reasonably satisfactory to the Administrative
Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. The
Borrower shall have obtained all necessary approvals, authorizations and
consents (other than (i) the approvals, authorizations and consents to be
delivered after the Closing Date pursuant to Section 8.12, (ii) any approval,
authorization, or consent relating to leased sites not listed on Schedule
8.12(c), (iii) any approval, authorization, or consent not required to be
delivered pursuant to the Security Documents, and (iv) consents under the PSI
Net and GTE Network Services Agreements) of any Person and of all Governmental
Authorities and courts having jurisdiction with respect to the transactions
contemplated by this Agreement and the other Loan Documents.
(ii) Permits and Licenses. All material permits and
licenses required under Applicable Laws, necessary to the conduct of the
Borrower's business, including, without limitation, if applicable, all
Communications Licenses shall have been obtained.
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(iii) No Injunction, Etc. No action, proceeding,
investigation, regulation or legislation shall have been instituted, threatened
or proposed before any Governmental Authority to enjoin, restrain, or prohibit,
or to obtain substantial damages in respect of, or which is related to or
arises out of this Agreement or the other Loan Documents or the consummation of
the transactions contemplated hereby or thereby.
(iv) No Event of Default. No Default or Event of
Default shall have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent
shall have received (A) audited Consolidated financial statements (including
balance sheets, related statements of income and retained earnings and cash
flows) of the Borrower and its Subsidiaries (excluding the Netcom Acquisition)
for Fiscal Year 1997 and 1998, (B) audited Consolidated financial statements
(including balance sheets, related statements of income and retained earnings
and cash flows) for Netcom, as prepared by Xxxxxx Xxxxxxxx, L.L.P., for Fiscal
Year 1997 and 1998 and (C) unaudited pro forma Consolidated financial statements
(including balance sheets, related statements of income and retained earnings
and cash flows) of the Borrower and its Subsidiaries (after giving effect to the
Netcom Acquisition) as of December 31, 1998, all of the foregoing in form and
substance reasonably satisfactory to the Administrative Agent.
(ii) Financial Condition Certificate. The Borrower shall
have delivered to the Administrative Agent a certificate, in form and substance
reasonably satisfactory to the Administrative Agent, and certified as accurate
by a Responsible Officer, that (A) the Borrower and its Subsidiaries are
Solvent, (B) the Borrower's material payables are current and not past due, (C)
attached thereto is a pro forma balance sheet of the Borrower and its
Subsidiaries setting forth on a pro forma basis the financial condition of the
Borrower and its Subsidiaries on a Consolidated basis as of that date,
reflecting a pro forma basis the effect of the transactions contemplated herein
including the Netcom Acquisition as well as all fees and expenses in connection
therewith, and evidencing compliance on a pro forma basis with the covenants
contained in Articles IX and X hereof, and (D) attached thereto are the
financial projections previously delivered to the Administrative Agent
representing the good faith opinions of the Borrower and senior management
thereof as to the projected results contained therein.
(iii) Payment at Closing; Fee Letters. The Borrower shall
have paid the fees set forth or referenced in Section 4.3 and any other accrued
and unpaid fees or commissions due hereunder (including, without limitation,
reasonable legal fees and expenses) to the Administrative Agent and Lenders,
and to any other Person such amount as may be due thereto in connection with
the transactions contemplated hereby, including all taxes, fees and other
charges in connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents. The Administrative Agent shall have
received duly authorized and executed copies of the fee letter agreement
referred to in Section 4.3(b).
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(f) Conditions to Funding the Netcom Acquisition.
(i) Asset Purchase Agreement. There shall not have been
any material modification, amendment, supplement or waiver to the Asset
Purchase Agreement without the prior written consent of the Administrative
Agent, including any modification, amendment, supplement or waiver relating to
the amount or type of consideration to be paid in connection with the
transactions contemplated by the Asset Purchase Agreement or the contents of
any disclosure schedules and exhibits; all representations and warranties set
forth therein shall be true and correct in all material respects as of the
Closing Date and all conditions set forth in the Asset Purchase Agreement shall
have been fulfilled to the reasonable satisfaction of the Administrative Agent,
including the receipt by the Borrower of all necessary consents (without any
waiver or amendment, except as consented to by the Administrative Agent); the
transactions contemplated by the Asset Purchase Agreement shall be consummated
simultaneously with or prior to the initial borrowing under this Agreement;
(ii) Network Services Agreement. The Borrower shall have
entered into the Network Services Agreement (as defined in the Asset Purchase
Agreement) on terms reasonably satisfactory to the Administrative Agent; there
shall not have been any material modification, amendment, supplement or waiver
to the Network Services Agreement without the prior written consent of the
Administrative Agent, including any modification, amendment, supplement or
waiver relating to the amount or type of consideration to be paid in connection
with the transactions contemplated therein or the contents of any disclosure
schedules and exhibits; and
(iii) Deliveries to the Administrative Agent. The
Administrative Agent shall have received a certificate. signed by a Responsible
Officer of the Borrower, in form and substance satisfactory to the
Administrative Agent confirming that the Netcom Acquisition has closed
contemporaneously with the closing of this Agreement and attaching copies of
the following final, executed documents (each as defined in the Asset Purchase
Agreement):
(A) the Asset Purchase Agreement and all
exhibits and schedules thereto;
(B) the Xxxx of Sale;
(C) the Assignment and Assumption of
Contracts and Leases;
(D) the Assumption Agreement;
(E) the Network Services Agreement and all
exhibits and schedules thereto;
(F) the opinions of Xxxxxxx & Xxxxxx,
L.L.C. and Xxxxx & Xxxxxxx, L.L.P.
(which such opinions shall expressly
provide for reliance thereon by the
Administrative Agent and Lenders);
and
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(G) the resolutions, certificates and
other instruments, as requested by
the Administrative Agent, set forth
in Section 2.6.1 and 2.6.2 of the
Asset Purchase Agreement.
(g) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall
have received a Notice of Borrowing from the Borrower in accordance with
Section 2.2(a), and a Notice of Account Designation specifying the account or
accounts to which the proceeds of any Loans made after the Closing Date are to
be disbursed.
(ii) Proceedings and Documents. All opinions,
certificates and other instruments and all proceedings in connection with the
transactions contemplated by this Agreement shall be reasonably satisfactory in
form and substance to the Lenders. The Lenders shall have received copies of
all other instruments and other evidence as the Lender may reasonably request,
in form and substance reasonably satisfactory to the Lenders, with respect to
the transactions contemplated by this Agreement and the taking of all actions
in connection therewith.
(iii) Due Diligence and Other Documents. The Borrower
shall have delivered to the Administrative Agent such other documents,
certificates and opinions as the Administrative Agent may reasonably request.
SECTION 5.3 Conditions to All Extensions of Credit. The
obligations of the Lenders to make any Extensions of Credit is subject to the
satisfaction of the following conditions precedent on the relevant borrowing or
issue date, as applicable:
(a) Continuation of Representations and Warranties. The
representations and warranties contained in Article VI shall be true and
correct on and as of such borrowing or issuance date with the same effect as if
made on and as of such date; except for any representation and warranty made as
of an earlier date, which representation and warranty shall remain true and
correct as of such earlier date.
(b) No Existing Default. No Default or Event of Default
shall have occurred and be continuing hereunder (i) on the borrowing date with
respect to such Loan or after giving effect to the Loans to be made on such
date or (ii) or the issue date with respect to such Letter of Credit or after
giving affect to such Letters of Credit on such date.
(c) Officer's Compliance Certificate; Additional Documents.
The Administrative Agent shall have received the current Officer's Compliance
Certificate and each additional document, instrument, legal opinion or other
item of information reasonably requested by it.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 6.1 Representations and Warranties. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Extensions of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and Lenders both before and after giving
effect to the transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its incorporation or formation, has the power and
authority to own its properties and to carry on its business as now being
conducted (and as hereafter conducted at the time of any supplement to Schedule
6.1(a) required pursuant to Section 8.12) and is duly qualified and authorized
to do business in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification and authorization,
except where the failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect. The jurisdictions in which the Borrower and
its Subsidiaries are organized and qualified to do business as of the Closing
Date or any date on which Schedule 6.1(a) is supplemented in accordance with
Section 8.12, as applicable, are described on Schedule 6.1(a).
(b) Ownership. Each Subsidiary of the Borrower as of the Closing
Date or any date on which Schedule 6.1(b) is supplemented in accordance with
Section 8.12, as applicable, is listed on Schedule 6.1(b). As of the Closing
Date, the Borrower has no Subsidiaries. As of the Closing Date, or any date on
which Schedule 6.1(b) is supplemented in accordance with Section 8.12, as
applicable, the capitalization of the Borrower and its Subsidiaries consists of
the number of shares, authorized, issued and outstanding, of such classes and
series, with or without par value, described on Schedule 6.1(b). All
outstanding shares have been duly authorized and validly issued and are fully
paid and nonassessable. The shareholders of the Subsidiaries of the Borrower
and the number of shares owned by each as of the Closing Date or any date on
which Schedule 6.1(b) is supplemented in accordance with Section 8.12, as
applicable, are described on Schedule 6.1(b). As of the Closing Date or any
date on which Schedule 6.1(b) is supplemented in accordance with Section 8.12,
there are no outstanding stock purchase warrants, subscriptions, options,
securities, instruments or other rights of any type or nature whatsoever, which
are convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of the Borrower or its Subsidiaries, except as
described on Schedule 6.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
the Borrower and its Subsidiaries has the right, power and authority and has
taken all necessary corporate and other action to authorize the execution,
delivery and performance of this Agreement and each of the other Loan Documents
to which it is a party in accordance with their respective terms. This
Agreement and each of the other Loan Documents have been duly executed and
delivered by the duly authorized officers of the Borrower and each of its
Subsidiaries party thereto, and each such document constitutes the legal, valid
and binding obligation of the Borrower or its Subsidiary party thereto,
enforceable in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency, reorganization,
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moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by the Borrower and its
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the borrowings hereunder and the
transactions contemplated hereby do not and will not, by the passage of time,
the giving of notice or otherwise, (i) require any Governmental Approval or
violate any Applicable Law relating to the Borrower or any of its Subsidiaries,
(ii) conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws or other organizational documents of the
Borrower or any of its Subsidiaries or any Material Contract to which such
Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person, or (iii) result in or require
the creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens arising under the
Loan Documents.
(e) Compliance with Law; Governmental Approvals. Each of the
Borrower and its Subsidiaries (i) has all material Governmental Approvals
including any necessary Communications Licenses required by any Applicable Law
for it to conduct its business, each of which is in full force and effect, is
final and not subject to review on appeal and is not the subject of any pending
or, to the best of its knowledge, threatened attack by direct or collateral
proceeding, and (ii) is in material compliance with each material Governmental
Approval applicable to it and in material compliance with all other material
Applicable Laws relating to it or any of its respective properties.
(f) Tax Returns and Payments. Each of the Borrower and its Subsidies
has duly filed or caused to be filed all federal, state, local and other tax
returns required by Applicable Law to be filed, and has paid, or made adequate
provision for the payment of, all federal, state, local and other taxes,
assessments and governmental charges or levies upon it and its property,
income, profits and assets which are due and payable, except where the payment
of such tax is being disputed in good faith and adequate reserves have been
established in accordance with GAAP. No Governmental Authority has asserted
any Lien or other claim against the Borrower or Subsidiary thereof with respect
to material unpaid taxes which has not been discharged or resolved or is not
being contested in good faith and for which adequate reserves have been
established in accordance with GAAP. The charges, accruals and reserves on the
books of the Borrower and any of its Subsidiaries in respect of federal, state,
local and other taxes for all Fiscal Years and portions thereof since the
organization of the Borrower and any of its Subsidiaries are in the judgment of
the Borrower adequate, and the Borrower does not anticipate any additional
material taxes or assessments for any of such years.
(g) Intellectual Property Matters. Each of the Borrower and its
Subsidiaries owns or possesses rights to use all material franchises, licenses,
copyrights, copyright applications, patents, patent rights or licenses, patent
applications, trademarks, trademark rights, trade names, trade name rights,
copyrights and rights with respect to the foregoing which are required to
conduct its business. No event has occurred which permits, or after notice or
lapse of time or both would permit, the revocation or termination of any such
rights (except where such
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revocation or termination could not reasonably be expected to have a Material
Adverse Effect), and neither the Borrower nor any Subsidiary thereof is liable
to any Person for infringement under Applicable Law with respect to any such
rights as a result of its business operations.
(h) Environmental Matters.
(i) The properties owned, leased or operated by
the Borrower anubsidiaries do not contain, and to the Borrower's knowledge have
not previously contained, any Hazardous Materials in amounts or concentrations
which (A) constitute or constituted a violation of applicable Environmental
Laws or (B) could give rise to liability under applicable Environmental Laws,
except where such violation or liability could not reasonably be expected to
result in a Material Adverse Effect;
(ii) The Borrower, each Subsidiary and such properties
and all operations conducted in connection therewith are in compliance, and
have been in compliance, with all applicable Environmental Laws, and there is
no contamination at, under or about such properties or such operations which
could interfere with the continued operation of such properties or impair the
fair saleable value thereof, except where any such event could not reasonably
be expected to result in a Material Adverse Effect;
(iii) Neither the Borrower nor any Subsidiary
thereof has received any notice of violation, alleged violation,
non-compliance, liability or potential liability regarding environmental
matters, Hazardous Materials, or compliance with Environmental Laws, nor does
the Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened, except where such notice could not reasonably
be expected to result in a Material Adverse Effect;
(iv) To the Borrower's knowledge, Hazardous Materials
have not been transported or disposed of to or from the properties owned,
leased or operated by the Borrower and its Subsidiaries in violation of, or in
a manner or to a location which could give rise to liability under,
Environmental Laws, nor since the date of acquisition of such property by the
Borrower or its Subsidiaries have any Hazardous Materials been generated,
treated, stored or disposed of at, on or under any of such properties in
violation of, or in a manner that could give rise to liability under, any
applicable Environmental Laws, except where the failure to so comply or the
existence of such contamination could not reasonably be expected to result in a
Material Adverse Effect;
(v) No judicial proceedings or governmental or
administrative action is pending, or, to the knowledge of the Borrower,
threatened, under any Environmental Law to which the Borrower or any Subsidiary
thereof is or is expected to be named as a party with respect to such
properties or operations conducted in connection therewith, nor are there any
consent decrees or other decrees, consent orders, administrative orders or
other orders, or other administrative or judicial requirements outstanding
under any Environmental Law with respect to Borrower, any Subsidiary or such
properties or operations, except where any such event could not reasonably be
expected to result in a Material Adverse Effect; and
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(vi) Since the date of the acquisition of any property,
there has been no release or to the Borrower's knowledge, threat of release of
Hazardous Materials at or from properties owned, leased or operated by the
Borrower or any Subsidiary, now or in the past, in violation of or in amounts
or in a manner that could give rise to liability under Environmental Laws,
except where such release could not reasonably be expected to result in a
Material Adverse Effect.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any
ERISA Affiliate maintains or contributes to, or has any obligation under, any
Employee Benefit Plans other than those identified on Schedule 6.1(i);
(ii) The Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. Each Employee
Benefit Plan that is intended to be qualified under Section 401(a) of the Code
(A) has been determined by the Internal Revenue Service to be so qualified, and
each trust related to such plan has been determined to be exempt under Section
501(a) of the Code or (B) is within the remedial amendment period as defined in
Section 401(b) of the Code as of the initial adoption of such Employee Benefit
Plan. No liability has been incurred by the Borrower or any ERISA Affiliate
which remains unsatisfied for any taxes or penalties with respect to any
Employee Benefit Plan or any Multiemployer Plan;
(iii) No Pension Plan has been terminated, nor has
any accumulated funding deficiency (as defined in Section 412 of the Code) been
incurred (without regard to any waiver granted under Section 412 of the Code),
nor has any funding waiver from the Internal Revenue Service been received or
requested with respect to any Pension Plan, nor has the Borrower or any ERISA
Affiliate failed to make any contributions or to pay any amounts due and owing
as required by Section 412 of the Code, Section 302 of ERISA or the terms of
any Pension Plan prior to the due dates of such contributions under Section 412
of the Code or Section 302 of ERISA, nor has there been any event requiring any
disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with respect to any
Pension Plan;
(iv) Neither the Borrower nor any ERISA Affiliate has:
(A) engaged in a nonexempt prohibited transaction described in Section 406 of
the ERISA or Section 4975 of the Code, (B) incurred any liability to the PBGC
which remains outstanding other than the payment of premiums and there are no
premium payments which are due and unpaid, (C) failed to make a required
contribution or payment to a Multiemployer Plan, or (D) failed to make a
required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably
expected to occur; and
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(vi) No material proceeding, claim, lawsuit and/or
investigation is existing or, to the best knowledge of the Borrower after due
inquiry, threatened concerning or involving any (A) employee welfare benefit
plan (as defined in Section 3(1) of ERISA) currently maintained or contributed
to by the Borrower or any ERISA Affiliate, (B) Pension Plan or (C)
Multiemployer Plan.
(j) Margin Stock. Neither the Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as
each such term is defined or used in Regulation U of the Board of Governors of
the Federal Reserve System). No part of the proceeds of any of the Loans or
Letters of Credit will be used for purchasing or carrying margin stock or for
any purpose which violates, or which would be inconsistent with, the provisions
of Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company Act of
1940, as amended) and neither the Borrower nor any Subsidiary thereof is, or
after giving effect to any Extension of Credit will be, subject to regulation
under the Public Utility Holding Company Act of 1935 or the Interstate Commerce
Act, each as amended, or any other Applicable Law which limits its ability to
incur or consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 6.1(l) sets forth a complete and
accurate list of all Material Contracts of the Borrower and its Subsidiaries
including all network services agreements in effect as of the Closing Date not
listed on any other Schedule hereto; other than as set forth in Schedule
6.1(l), each such Material Contract is, and after giving effect to the
consummation of the transactions contemplated by the Loan Documents will be, in
full force and effect in accordance with the terms thereof. The Borrower has
delivered to the Administrative Agent a true and complete copy of each Material
Contract required to be listed on Schedule 6.1(l) or any other Schedule hereto.
(m) Employee Relations. Each of the Borrower and its Subsidiaries has
a stable work force in place and is not, as of the Closing Date, party to any
collective bargaining agreement nor has any labor union been recognized as the
representative of its employees except as set forth on Schedule 6.1(m). The
Borrower knows of no pending, threatened or contemplated strikes, work stoppage
or other collective labor disputes involving its employees or those of its
Subsidiaries.
(n) Burdensome Provisions. Neither the Borrower nor any Subsidiary
thereof is a party to any indenture, agreement, lease or other instrument, or
subject to any corporate or partnership restriction, Governmental Approval or
Applicable Law which is so unusual or burdensome as in the foreseeable future
could be reasonably expected to have a Material Adverse Effect. The Borrower
does not presently anticipate that future expenditures needed to meet the
provisions of any statutes, orders, rules or regulations of a Governmental
Authority will be so burdensome as to have a Material Adverse Effect.
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(o) Financial Statements. The financial statements required to be
provided to the Administrative Agent pursuant to Section 5.2(e)(i)(A) are
complete and correct and fairly present the assets, liabilities and financial
position of the Borrower and its Subsidiaries as at such dates, and the results
of the operations and changes of financial position for the periods then ended
(except in the case of unaudited statement to changes resulting from normal
year-end adjustments and items that would be disclosed in footnotes to the
audited statements). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP. The
Borrower and its Subsidiaries have no Debt, material obligation or other
unusual material forward or long-term commitment which is not fairly reflected
in the foregoing financial statements or in the notes thereto.
(p) No Material Adverse Change. Since December 31, 1997, there has
been no material adverse change in the properties, business, operations,
prospects, or condition (financial or otherwise) of the Borrower and its
Subsidiaries and no event has occurred or condition arisen that could
reasonably be expected to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Borrower and its Subsidiaries, taken as
a whole, will be Solvent.
(r) Titles to Properties. Each of the Borrower and its Subsidiaries
has such title to the real property owned by it as is necessary or desirable to
the conduct of its business and valid and legal title to all of its personal
property and assets, including, but not limited to, those reflected on the
balance sheets of the Borrower and its Subsidiaries delivered pursuant to
Section 6.1(o), except those which have been disposed of by the Borrower or its
Subsidiaries subsequent to such date which dispositions have been in the
ordinary course of business or as otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Borrower or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
Section 10.3. No financing statement under the Uniform Commercial Code of any
state which names the Borrower or any Subsidiary thereof or any of their
respective trade names or divisions as debtor and which has not been
terminated, has been filed in any state or other jurisdiction and neither the
Borrower nor any Subsidiary thereof has signed any such financing statement or
any security agreement authorizing any secured party thereunder to file any
such financing statement, except to perfect those Liens permitted by Section
10.3 hereof.
(t) Debt and Guaranty Obligations. Schedule 6.1(t) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrower and its
Subsidiaries as of the Closing Date in excess of $500,000. The Borrower and
its Subsidiaries have performed and are in compliance with all of the material
terms of such Debt and Guaranty Obligations and all instruments and agreements
relating thereto, and no default or event of default, or event or condition
which with notice or lapse of time or both would constitute such a default or
event of default on the part of the Borrower or its Subsidiaries exists with
respect to any such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and
set forth on Schedule 6.1(u), there are no actions, suits or proceedings
pending nor, to the knowledge of the
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Borrower, threatened against or in any other way relating adversely to or
affecting the Borrower or any Subsidiary thereof or any of their respective
properties in any court or before any arbitrator of any kind or before or by
any Governmental Authority which is reasonably likely to have a Material
Adverse Effect.
(v) Absence of Defaults. No event has occurred or is continuing (i)
which constitutes a Default or an Event of Default, or (ii) which constitutes,
or which with the passage of time or giving of notice or both would constitute,
a default or event of default by the Borrower or any Subsidiary thereof under
any Material Contract or judgment, decree or order to which the Borrower or its
Subsidiaries is a party or by which the Borrower or its Subsidiaries or any of
their respective properties may be bound or which would require the Borrower or
its Subsidiaries to make any payment thereunder prior to the scheduled maturity
date therefor which, with respect to the matters set forth in clause (ii) could
reasonably be expected to result in a Material Adverse Effect.
(w) Telecommunications Matters
(i) Communications Licenses. Schedule 6.1(w)(i) hereto
sets forth, as of the Closing Date and each subsequent date required pursuant
to Section 8.12, a true and complete list of all Communications Licenses (and
the expiration dates thereof) of the Borrower and its Subsidiaries pertaining
to the provision of internet services, and, if applicable, the jurisdiction
served thereby.
(ii) Condition of Systems. All of the properties,
equipment and systems of the Borrower and its Subsidiaries are in good repair,
working order and condition, ordinary wear and tear excepted.
(iii) Subscribers. As of the Closing Date, (A) the number
of dial-up, Web-hosting and dedicated access subscribers that are being
acquired pursuant to the Netcom Acquisition is not less than 395,000 and the
average revenue per such subscriber for the fiscal quarter ending December 31,
1998 was not less than $28.00; and (B) the number of dial-up, Web-hosting and
dedicated access subscribers on a Consolidated basis, including the acquired
Netcom subscribers, for the Borrower is not less than 1,100,000.
(x) Accuracy and Completeness of Information. All written
information, reports and other papers and data produced by or on behalf of the
Borrower or any Subsidiary thereof and furnished to the Lenders were, at the
time the same were so furnished, complete and correct in all material respects
to the extent necessary to give the recipient a true and accurate knowledge of
the subject matter. No document furnished or written statement made to the
Administrative Agent or the Lenders by the Borrower or any Subsidiary thereof
in connection with the negotiation, preparation or execution of this Agreement
or any of the Loan Documents contains or will contain any untrue statement of a
material fact to the creditworthiness of the Borrower or its Subsidiaries or
omits or will omit to state a material fact necessary in order to make the
statements contained therein not misleading. The Borrower is not aware of any
facts which it has not disclosed in writing to the Administrative Agent having
a Material Adverse Effect, or
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insofar as the Borrower can now foresee, could reasonably be expected to have a
Material Adverse Effect.
SECTION 6.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including but not limited to any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date, shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement, any investigation made
by or on behalf of the Lenders or any borrowing hereunder.
ARTICLE VII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.11 hereof, the Borrower will furnish or cause to be
furnished to the Administrative Agent and to the Lenders at their respective
addresses as set forth on Schedule 1, or such other office as may be designated
by the Administrative Agent and Lenders from time to time:
SECTION 7.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in
any event within forty-five (45) days after the end of the first three (3)
fiscal quarters on each Fiscal Year, an unaudited Consolidated and
consolidating balance sheet of the Borrower and its Subsidiaries as of the
close of such fiscal quarter and unaudited Consolidated and consolidating
statements of income, retained earnings and cash flows for the fiscal quarter
then ended and that portion of the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by the
Borrower in accordance with GAAP and, if applicable, containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the period, and
certified by the chief financial officer of the Borrower to present fairly in
all material respects the financial condition of the Borrower and its
Subsidiaries as of their respective dates and the results of operations of the
Borrower and its Subsidiaries for the respective periods then ended, subject to
normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year, an audited
Consolidated balance sheet of the Borrower and its Subsidiaries as of the close
of such Fiscal Year and audited Consolidated statements of income, retained
earnings and cash flows for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared by an
independent certified public accounting
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firm of nationally recognized standing in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial position or
results of operation of any change in the application of accounting principles
and practices during the year, and accompanied by a report thereon by such
certified public accountants that is not qualified with respect to scope
limitations imposed by the Borrower or any of its Subsidiaries or with respect
to accounting principles followed by the Borrower or any of its Subsidiaries
not in accordance with GAAP.
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within thirty (30) days after the beginning of
each Fiscal Year, commencing with Fiscal Year 2000, a business plan of the
Borrower and its Subsidiaries for the ensuing four (4) fiscal quarters, such
plan to be prepared in accordance with GAAP and to include, on a quarterly
basis, the following: a quarterly operating and capital budget, a projected
income statement, statement of cash flows and balance sheet and a report
containing management's discussion and analysis of such projections,
accompanied by a certificate from the chief financial officer of the Borrower
to the effect that, to the best of such officer's knowledge, such projections
are good faith estimates of the financial condition and operations of the
Borrower and its Subsidiaries for such four (4) quarter period.
SECTION 7.2 Officer's Compliance Certificate. At each time
financial statements are delivered pursuant to Section 7.1 (a) or (b) and at
such other times as the Administrative Agent shall reasonably request, a
certificate of the chief financial officer or the treasurer of the Borrower in
the form of Exhibit F attached hereto (an "Officer's Compliance Certificate").
SECTION 7.3 Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 7.1(b), a certificate of the
independent public accountants certifying such financial statements addressed
to the Administrative Agent for the benefit of the Lenders:
(a) stating that in making the examination necessary for the
certification of such financial statements, they obtained no knowledge of any
Default or Event of Default or, if such is not the case, specifying such
Default or Event of Default and its nature and period of existence; and
(b) including the calculations prepared by such accountants required
to establish whether or not the Borrower and its Subsidiaries are in compliance
with the financial covenants set forth in Article IX hereof as at the end of
each respective period.
SECTION 7.4 Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto; and
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(b) Such other information regarding the operations, business
affairs and financial condition of the Borrower or any of its Subsidiaries as
the Administrative Agent or any Lender may reasonably request.
SECTION 7.5 Notice of Litigation and Other Matters. Prompt (but
in no event later than ten (10) days after a senior officer of the Borrower
obtains knowledge thereof) telephonic and written notice of:
(a) the commencement of all material proceedings and investigations
by or before any Governmental Authority and all material actions and
proceedings in any court or before any arbitrator against or involving the
Borrower or any Subsidiary thereof or any of their respective properties,
assets or businesses;
(b) any notice of any material violation received by the Borrower or
any Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of material violation of Environmental Laws which in any
such case could reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens to
result in, a strike or other work action against the Borrower or any Subsidiary
thereof;
(d) any attachment, judgment, lien, levy or order exceeding
$1,000,000 that may be assessed against or threatened against the Borrower or
any Subsidiary thereof;
(e) (i) any Default or Event of Default or (ii) any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default under any Material Contract to which
the Borrower or any of its Subsidiaries is a party or by which the Borrower or
any Subsidiary thereof or any of their respective properties may be bound or
(iii) any cancellation or material amendment or modification of any network
services agreements that are Material Contracts (other than the PSI Network
Services Agreement and the GTE Network Services Agreement);
(f) (i) any unfavorable determination letter from the Internal
Revenue Service regarding the qualification of an Employee Benefit Plan under
Section 401(a) of the Code (along with a copy thereof), (ii) all notices
received by the Borrower or any ERISA Affiliate of the PBGC's intent to
terminate any Pension Plan or to have a trustee appointed to administer any
Pension Plan, (iii) all notices received by the Borrower or any ERISA Affiliate
from a Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA and (iv) the Borrower
obtaining knowledge or reason to know that the Borrower or any ERISA Affiliate
has filed or intends to file a notice of intent to terminate any Pension Plan
under a distress termination within the meaning of Section 4041(c) of ERISA;
and
(g) any event which makes any of the representations set forth in
Section 6.1 inaccurate in any material respect.
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SECTION 7.6 Accuracy of Information. All written information,
reports, statements and other papers and data furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender (other than financial
forecasts) whether pursuant to this Article VII or any other provision of this
Agreement, or any of the Security Documents, shall be, at the time the same is
so furnished, complete and correct in all material respects to the extent
necessary to give the Administrative Agent or any Lender complete, true and
accurate knowledge of the subject matter based on the Borrower's knowledge
thereof.
ARTICLE VIII
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 13.11, the Borrower will, and will cause each of its
Subsidiaries to:
SECTION 8.1 Preservation of Corporate Existence and Related
Matters. Except as permitted by Section 10.5, preserve and maintain its
separate corporate existence and all rights, franchises, licenses and
privileges necessary to the conduct of its business, and qualify and remain
qualified as a foreign corporation and authorized to do business in each
jurisdiction where the nature and scope of its activities require it to so
qualify under Applicable Law in which the failure to so qualify would have a
Material Adverse Effect.
SECTION 8.2 Maintenance of Property. In addition to the
requirements of any of the Security Documents, protect and preserve all
properties useful in and material to its business, including material
copyrights, patents, trade names and trademarks; maintain in good working order
and condition (reasonable wear and tear and obsolescence excepted) all
buildings, equipment and other tangible real and personal property; and from
time to time make or cause to be made all renewals, replacements and additions
to such property necessary for the conduct of its business, so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times.
SECTION 8.3 Insurance. Maintain insurance with financially sound
and reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses, including hazard and business
interruption coverage, and as may be required by Applicable Law and as are
required by any Security Documents, and on the Closing Date and from time to
time thereafter deliver to the Administrative Agent upon its request a detailed
list of the insurance then in effect, stating the names of the insurance
companies, the amounts and rates of the insurance, the dates of the expiration
thereof and the properties and risks covered thereby.
SECTION 8.4 Accounting Methods and Financial Records. Maintain a
system of accounting, and keep such books, records and accounts (which shall be
true and complete in all material respects) as may be required or as may be
necessary to permit the preparation of
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financial statements in accordance with GAAP and in compliance with the
regulations of any Governmental Authority having jurisdiction over it or any of
its properties.
SECTION 8.5 Payment and Performance of Obligations. Pay and
perform all Obligations under this Agreement and the other Loan Documents, and
pay or perform (a) all taxes, assessments and other governmental charges that
may be levied or assessed upon it or any of its property, and (b) all other
indebtedness, obligations and liabilities in accordance with customary trade
practices; provided, that the Borrower or any Subsidiary thereof may contest
any item described in clauses (a) or (b) of this Section 8.5 in good faith so
long as adequate reserves are maintained with respect thereto in accordance
with GAAP.
SECTION 8.6 Compliance With Laws and Approvals. Observe and remain
in material compliance with all Applicable Laws and maintain in full force and
effect all material Governmental Approvals, in each case applicable to the
conduct of its business.
SECTION 8.7 Environmental Laws. In addition to and without
limiting the generality of Section 8.6, (a) comply in all material respects
with, and use its best efforts to ensure such compliance by all of its tenants
and subtenants with all applicable Environmental Laws and obtain and comply
with and maintain, and use its best efforts to ensure that all of its tenants
and subtenants obtain and comply with and maintain, any and all material
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, (b) conduct and complete all investigations,
studies, sampling and testing, and all remedial, removal and other actions
required under Environmental Laws, and promptly comply with all lawful orders
and directives of any Governmental Authority regarding Environmental Laws, and
(c) defend, indemnify and hold harmless the Administrative Agent and the
Lenders, and their respective parents, Subsidiaries, Affiliates, employees,
agents, officers and directors, from and against any claims, demands,
penalties, fines, liabilities, settlements, damages, costs and expenses of
whatever kind or nature known or unknown, contingent or otherwise, arising out
of, or in any way relating to the presence of Hazardous Materials, or the
violation of, noncompliance with or liability under any Environmental Laws
applicable to the operations of the Borrower or such Subsidiary, or any orders,
requirements or demands of Governmental Authorities related thereto, including,
without limitation, reasonable attorney's and consultant's fees, investigation
and laboratory fees, response costs, court costs and litigation expenses,
except to the extent that any of the foregoing directly result from the gross
negligence or willful misconduct of the party seeking indemnification therefor.
SECTION 8.8 Compliance with ERISA. In addition to and without
limiting the generality of Section 8.6, (a) comply with all applicable
provisions of ERISA and the regulations and published interpretations
thereunder with respect to all Employee Benefit Plans, (b) not take any action
or fail to take action the result of which could be a liability to the PBGC or
to a Multiemployer Plan, (c) not participate in any prohibited transaction that
could result in any civil penalty under ERISA or tax under the Code, (d)
operate each Employee Benefit Plan in such a manner that will not incur any tax
liability under Section 4980B of the Code or any liability (other than for
benefits in accordance with the terms of such Employee Benefit Plan) to any
qualified beneficiary as defined in Section 4980B of the Code and (e) furnish
to the
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Administrative Agent upon the Administrative Agent's request such additional
information about any Employee Benefit Plan as may be reasonably requested by
the Administrative Agent.
SECTION 8.9 Compliance With Material Contracts . Comply in all
material respects with each term, condition and provision of all Material
Contracts; provided, that the Borrower or such Subsidiary may contest any such
Material Contract in good faith through applicable proceedings so long as
adequate reserves are maintained in accordance with GAAP.
SECTION 8.10 Conduct of Business. Engage only in businesses in
substantially the same fields as the businesses conducted on the Closing Date
and in lines of business reasonably related thereto.
SECTION 8.11 Visits and Inspections. Upon reasonable notice and
during normal business hours, permit representatives of the Administrative
Agent or any Lender, from time to time, to visit and inspect its properties;
inspect, audit and make extracts from its books, records and files, including,
but not limited to, management letters prepared by independent accountants; and
discuss with its principal officers, and its independent accountants, its
business, assets, liabilities, financial condition, results of operations and
business prospects.
SECTION 8.12 Guarantors and Additional Collateral.
(a) Simultaneously with any Subsidiary of the Borrower (which is
not then a Guarantor) owning assets in excess of $1,000 or conducting business
or consummating any Permitted Acquisition, cause to be executed and delivered
to the Administrative Agent, (i) a Guaranty and Collateral Agreement Supplement
substantially in the form of Annex I of the Guaranty and Collateral Agreement,
(A) duly executed by such Subsidiary in favor of the Administrative Agent for
the ratable benefit of itself and the Lenders to securing the Guarantor
Obligations (as defined therein) and (B) duly executed by the Borrower pledging
100% of its equity interests in such Subsidiary in favor of the Administrative
Agent for the ratable benefit of the itself and the Lenders with such changes
therein to reflect the pledge by the Borrower of such equity interests as may
be reasonably requested by the Administrative Agent or Required Lenders, (ii)
any stock certificates or other documents evidencing the Borrower's pledged
equity interests in such Subsidiary and (iii) such other Security Documents,
closing items and legal opinions reasonably requested by the Administrative
Agent and consistent with the requirements of Section 5.2(b), Section 5.2(c)
and Section 5.2(d) in order to confirm that such Subsidiary is a Guarantor.
(b) Upon the delivery of any Guaranty and Collateral Agreement
Supplement, additional Security Documents and Collateral pursuant to this
Section 8.12, cause to be delivered to the Administrative Agent (i) favorable
legal opinions addressed to the Administrative Agent and Lenders in form and
substance reasonably satisfactory thereto with respect to such Security
Documents and additional Collateral, (ii) updated versions of Schedule 6.1(a),
Schedule 6.1(b) and Schedule 6.1(w)(i) and (iii) such other documents and
closing certificates as may be reasonably requested by the Administrative Agent
or Required Lenders consistent with the terms of Article V in order to confirm
that such Subsidiary is a Guarantor hereunder and all of the Borrower's equity
interest in such Subsidiary has been pledged as Collateral.
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(c) Subject to Section 8.12(d), within ninety (90) days after the
Closing Date, cause to be delivered to the Administrative Agent, the following
with regard to each leased site location identified in the "Location" column
set forth in Schedule 8.12(c) (the "Leased Sites"): (i) collateral assignments
of leases in a form appropriate for recording in the applicable jurisdiction
and otherwise in form and substance reasonably satisfactory to the
Administrative Agent and including any changes reasonably acceptable to the
Administrative Agent, (ii) landlord subordination and non-disturbance
agreements in form and substance reasonably satisfactory to the Administrative
Agent and including any changes reasonably acceptable to the Administrative
Agent, (iii) favorable legal opinions addressed to the Administrative Agent and
Lenders in form and substance reasonably satisfactory thereto with respect to
such recordable collateral assignments of leases and (iv) such other documents
and certificates reasonably requested by the Administrative Agent and Required
Lenders.
(d) In the event that the Borrower does not comply with each of the
requirements set forth in Section 8.12(c) above for each of the Leased Sites
within ninety (90) days after the Closing Date, then on the ninety-first (91st)
day after the Closing Date, (i) the Borrower's right to request a Commitment
increase pursuant to Section 2.8 shall be terminated, (ii) the Aggregate
Commitment shall be automatically and permanently reduced to Twenty Million
Dollars ($20,000,000) plus the aggregate amount of the incremental commitment
increases set forth on Schedule 8.12(c) (each, an "Incremental Commitment
Increase") corresponding to each Leased Site for which the Borrower has fully
complied with the provisions of Section 8.12(c); provided that, if the Borrower
does not fully comply with the provisions of Section 8.12(c) for the Atlanta,
Georgia Leased Site, no Incremental Commitment Increase shall be allowed, (iii)
the Applicable Margin shall be deemed to equal the pricing calculated pursuant
to Section 4.1(c) for such period plus an additional incremental margin
increase (the "Incremental Margin Increase") corresponding to the Aggregate
Commitment as reduced pursuant to the terms hereof and reflected in the pricing
grid set forth on Schedule 8.12(c) for both LIBOR Rate Loans and Base Rate
Loans, and (iv) the Borrower shall deliver a certificate setting forth (x) the
Leased Sites for which the Borrower has fully complied with Section 8.12(c),
(y) a calculation of the Aggregate Commitment pursuant to Section 8.12(d), and
(z) a calculation of the Incremental Margin Increase pursuant to Section
8.12(d).
SECTION 8.13 Year 2000 Compatibility. Take all actions reasonably
necessary to assure that the Borrower's computer based systems are able to
operate and effectively process data which includes dates on and after January
1, 2000. At the request of the Administrative Agent, the Borrower shall
provide reasonable assurances satisfactory to the Administrative Agent of the
Borrower's Year 2000 compatibility.
SECTION 8.14 Further Assurances. Make, execute and deliver all
such additional and further acts, things, deeds and instruments as the
Administrative Agent or any Lender may reasonably require to document and
consummate the transactions contemplated hereby and to vest completely in and
insure the Administrative Agent and the Lenders their respective rights under
this Agreement, the Notes, the Letters of Credit and the other Loan Documents.
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ARTICLE IX
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.11 hereof, the Borrower and its Subsidiaries on a
Consolidated basis will not:
SECTION 9.1 Leverage Ratio: As of any fiscal quarter end, permit
the ratio (the "Leverage Ratio") of (a) Total Debt as of such date to (b)
EBITDA to be greater than 3.0 to 1.0.
SECTION 9.2 Interest Coverage Ratio: As of any fiscal quarter end,
permit the ratio of (a) EBITDA to (b) Interest Expense for the period of four
(4) consecutive fiscal quarters ending on or immediately prior to such date to
be less than 3.0 to 1.0.
For purposes of calculating the financial covenants set forth in Sections
9.1 and 9.2, (i) as of the Closing Date, EBITDA shall be equal to $8,858,000
times four (4), (ii) as of the fiscal quarter ending on March 31, 1999, EBITDA
shall be equal to the EBITDA for the fiscal quarter ending on such date times
four (4) plus one time transaction costs and cost savings attributable to the
Netcom Acquisition, not to exceed $2,000,000 which such costs and cost savings
are reasonably acceptable to the Administrative Agent, and (iii) for any fiscal
quarter thereafter, EBITDA shall be equal to the EBITDA for the preceding two
(2) consecutive fiscal quarters ending on such date times two (2).
SECTION 9.3 Minimum Net Worth: As of any fiscal quarter end,
permit the Net Worth of the Borrower and its Subsidiaries to be less than
$175,000,000 plus fifty percent (50%) of net income (to the extent positive)
plus seventy-five percent (75%) of the net cash proceeds of any equity
issuances after the Closing Date.
ARTICLE X
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 13.11 hereof, the Borrower will not and will not permit any of
its Subsidiaries to:
SECTION 10.1 Limitations on Debt. Create, incur, assume or suffer
to exist any Debt except:
(a) the Obligations;
(b) Debt incurred in connection with a Hedging Agreement with a
counterparty reasonably satisfactory to the Administrative Agent (unless such
counterparty is (i) a Lender, (ii)
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an affiliate of a Lender or (iii) any third party who would qualify as an
Eligible Assignee) and upon terms and conditions reasonably satisfactory to the
Administrative Agent;
(c) Subordinated Debt not otherwise permitted under this Section
10.1;
(d) Debt existing on the Closing Date and not otherwise permitted
under this Section 10.1, as set forth on Schedule 6.1(t) (or specifically
permitted to be excluded from Schedule 6.1(t)) and the renewal and refinancing
(but not the increase of the aggregate principal amount thereof) thereof;
(e) Debt of the Borrower and its Subsidiaries incurred in connection
with Capitalized Leases in an aggregate amount not to exceed $10,000,000 on any
date of determination;
(f) purchase money Debt of the Borrower and its Subsidiaries in an
aggregate amount not to exceed $10,000,000 on any date of determination;
(g) Debt consisting of Guaranty Obligations permitted by Section
10.2;
(h) Intercompany Debt not otherwise permitted under this Section
10.1; and
(i) Debt in respect of performance, surety, or appeal bonds provided
in the ordinary course of business or in respect of indemnification or other
obligations incurred in connection with the disposition of any assets pursuant
to Section 10.6.
provided, that no agreement or instrument with respect to Debt permitted to be
incurred by this Section shall restrict, limit or otherwise encumber (by
covenant or otherwise) the ability of any Subsidiary of the Borrower to make
any payment to the Borrower or any other Subsidiaries (in the form of
dividends, intercompany advances or otherwise) for the purpose of enabling the
Borrower to pay the Obligations.
SECTION 10.2 Limitations on Guaranty Obligations. Create, incur,
assume or suffer to exist any Guaranty Obligations except:
(a) Guaranty Obligations in favor of the Administrative Agent for the
benefit of the Administrative Agent and the Lenders;
(b) Guaranty Obligations existing on the Closing Date and not
otherwise permitted under this Section 10.2, as set forth on Schedule 6.1(t)
(or specifically permitted to be excluded from Schedule 6.1(t)) and the renewal
and refinancing (but not the increase of the aggregate principal amount
thereof) thereof; and
(c) Guaranty Obligations of the Borrower or any of its Subsidiaries
of (i) Debt of the Borrower or any of its Subsidiary or (ii) contract
performance obligations of the Borrower or any of its Subsidiaries which do not
constitute Debt.
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SECTION 10.3 Limitations on Liens. Create, incur, assume or suffer
to exist, any Lien on or with respect to any of its assets or properties
(including without limitation shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies (excluding any Lien imposed pursuant to any of the provisions of ERISA
or Environmental Laws) not yet due or as to which the period of grace (not to
exceed thirty (30) days), if any, related thereto has not expired or which are
being contested in good faith and by appropriate proceedings if adequate
reserves are maintained to the extent required by GAAP;
(b) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (i) which are not overdue for a period of more
than thirty (30) days or (ii) which are being contested in good faith and by
appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary
course of business in connection with, or to secure payment of, obligations
under workers' compensation, unemployment insurance or similar legislation or
obligations (not to exceed $250,000) under customer service contracts,
statutory or regulatory obligations, bank acceptances, surety and appeal bonds,
government contracts, performance bonds, and other obligations of a similar
nature incurred in the ordinary course of business;
(d) Liens constituting encumbrances in the nature of municipal
ordinances, zoning restrictions, easements and rights or restrictions of record
on the use of real property, title defects or other irregularities, which in
the aggregate are not substantial in amount and which do not, in any case,
materially detract from the value of such property or impair the use thereof in
the ordinary conduct of business;
(e) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(f) Liens not otherwise permitted by this Section 10.3 and in
existence on the Closing Date and described on Schedule 10.3;
(g) Liens securing Debt permitted under Sections 10.1(e) and 10.1(f);
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition or lease of the related asset, (ii) such Liens do not at any
time encumber any property other than the property financed by such Debt, (iii)
the amount of Debt secured thereby is not increased and (iv) the principal
amount of Debt secured by any such Lien shall at no time exceed the original
purchase price or lease payment amount of such property at the time it was
acquired or leased; and
(h) Liens securing Debt permitted pursuant to Section 10.1(h).
SECTION 10.4 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in
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any partnership or joint venture (including without limitation the creation or
capitalization of any Subsidiary), evidence of Debt or other obligation or
security, substantially all or a material portion of the business or assets of
any other Person or any other investment or interest whatsoever in any other
Person, or make or permit to exist, directly or indirectly, any loans, advances
or extensions of credit to, or any investment in cash or by delivery of
property in, any Person except:
(a) investments not otherwise permitted by this Section 10.4 in
Subsidiaries (including without limitation, the creation or capitalization of
any Subsidiary) and the other existing loans, advances and investments not
otherwise permitted by this Section 10.4 described on Schedule 10.4;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency
thereof maturing within 120 days from the date of acquisition thereof, (ii)
commercial paper maturing no more than 120 days from the date of creation
thereof and currently having the highest rating obtainable from either Standard
& Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc. or
Xxxxx'x Investors Service, Inc., (iii) certificates of deposit maturing no more
than 120 days from the date of creation thereof issued by commercial banks
incorporated under the laws of the United States of America, each having
combined capital, surplus and undivided profits of not less than $500,000,000
and having a rating of "A" or better by a nationally recognized rating agency;
provided, that the aggregate amount invested in such certificates of deposit
shall not at any time exceed $5,000,000 for any one such certificate of deposit
and $10,000,000 for any one such bank, or (iv) time deposits maturing no more
than 30 days from the date of creation thereof with commercial banks or savings
banks or savings and loan associations each having membership either in the
FDIC or the deposits of which are insured by the FDIC and in amounts not
exceeding the maximum amounts of insurance thereunder;
(c) investments by the Borrower or any Subsidiary thereof in the form
of acquisitions of all or substantially all of the business or a line of
business of any other Person (whether by the acquisition of capital stock or
other equity ownership interests, assets or any combination thereof) which are
consummated in accordance with the following requirements of this Section
10.4(c) (any such acquisition, a "Permitted Acquisition"): (i) the acquired
Person shall be and substantially all of the acquired assets shall be utilized
in a substantially similar business as the Borrower or any Subsidiary thereof,
(ii) with regard to any proposed acquisition or series of related acquisitions
having total aggregate consideration in excess of $5,000,000, a description of
the relevant proposed acquisition or series of related acquisitions in
reasonable detail and the corresponding documentation shall be furnished by the
Borrower to the Lenders at least fifteen (15) Business Days prior to the
closing date thereof (to be followed by any changed pages and fully executed
copies promptly after the creation thereof), (iii) after giving effect to the
proposed acquisition, no Default or Event of Default shall have occurred and be
continuing (which, for any proposed acquisition or series of related
acquisitions having total aggregate consideration in excess of $5,000,000,
shall be evidenced by a certificate of the Borrower delivered on the closing
date thereof to the Administrative Agent and the Required Lenders in form and
substance reasonably satisfactory to the Administrative Agent and demonstrating
pro forma compliance with the financial covenants set forth in Article IX and
the other terms of the Loan Documents),
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and (iv) the aggregate cash or any other consideration for any such proposed
acquisition and all prior Permitted Acquisitions consummated during the term
hereof does not exceed Twenty-Five Million Dollars ($25,000,000);
(d) investments in the form of deposits for utilities, security
deposits, deposits for leases, and similar prepaid expenses incurred in the
ordinary course of business;
(e) loans or advances to employees of the Borrower or any Subsidiary
thereof made in the ordinary course of business that do not in the aggregate
exceed $1,000,000 at any time outstanding; and
(f) investments in the form of trade accounts created in the ordinary
course of business.
SECTION 10.5 Limitations on Mergers and Liquidation. Merge,
consolidate or enter into any similar combination with any other Person or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution) except:
(a) any Wholly-Owned Subsidiary of the Borrower may merge with the
Borrower or any other Wholly-Owned Subsidiary of the Borrower;
(b) any Wholly-Owned Subsidiary may merge into the Person such
Wholly-Owned Subsidiary was formed to acquire in connection with an acquisition
permitted by Section 10.4(c); and
(c) any Wholly-Owned Subsidiary of the Borrower may wind-up into the
Borrower or any other Wholly-Owned Subsidiary of the Borrower.
SECTION 10.6 Limitations on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or
assets (including, without limitation, the sale of any receivables and
leasehold interests and any sale-leaseback or similar transaction), whether now
owned or hereafter acquired except:
(a) the sale of inventory in the ordinary course of business;
(b) the sale of assets no longer used or usable in the business of
the Borrower or any of its Subsidiaries;
(c) the transfer, sale, lease, assignment or other disposition of
assets to the Borrower or any Wholly-Owned Subsidiary of the Borrower;
(d) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof; and
(e) the transfer, sale, lease, assignment or other disposition of
assets not otherwise permitted pursuant to this Section 10.6; provided that,
(i) the fair market value of all assets
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transferred, sold, leased, assigned or otherwise disposed of, pursuant to this
Section 10.6(e), shall not exceed $5,000,000 during the term hereof and (ii)
the Net Cash Proceeds received from any such disposition shall be applied in
the manner set forth in Section 2.5(b)(ii).
SECTION 10.7 Limitations on Dividends and Distributions. Declare
or pay any dividends upon any of its capital stock; purchase, redeem, retire or
otherwise acquire, directly or indirectly, any shares of its capital stock, or
make any distribution of cash, property or assets among the holders of shares
of its capital stock, or make any change in its capital structure that could
reasonably be expected to have a Material Adverse Effect; provided that:
(a) the Borrower or any Subsidiary may pay dividends in shares of its
own capital stock; and
(b) any Subsidiary may pay cash dividends or make distributions to
the Borrower.
SECTION 10.8 Limitations on Exchange and Issuance of Capital
Stock. Issue, sell or otherwise dispose of any class or series of capital
stock that, by its terms or by the terms of any security into which it is
convertible or exchangeable, is, or upon the happening of an event or passage
of time would be, (a) convertible or exchangeable into Debt or (b) required to
be redeemed or repurchased, including at the option of the holder, in whole or
in part, for cash or other property other than capital stock, or has, or upon
the happening of an event or passage of time would have, a redemption or
similar payment due.
SECTION 10.9 Transactions with Affiliates. Except as otherwise
provided herein, directly or indirectly (a) make any loan or advance to, or
purchase or assume any note or other obligation to or from, any of its
officers, directors, shareholders or other Affiliates, or to or from any member
of the immediate family of any of its officers, directors, shareholders or
other Affiliates, or subcontract any operations to any of its Affiliates or (b)
enter into, or be a party to, any other transaction with any of its Affiliates,
except pursuant to the reasonable requirements of its business which are no
less favorable to it than it would obtain in a comparable arm's length
transaction with a Person not its Affiliate.
SECTION 10.10 Certain Accounting Changes. Change its Fiscal Year
end, or make any material change in its accounting treatment and reporting
practices except as required by GAAP.
SECTION 10.11 Amendments; Payments and Prepayments of Subordinated
Debt. Amend or modify (or permit the modification or amendment of) any of the
terms or provisions of any Subordinated Debt, or cancel or forgive, make any
voluntary or optional payment or prepayment on, or redeem or acquire for value
(including without limitation by way of depositing with any trustee with
respect thereto money or securities before due for the purpose of paying when
due) any Subordinated Debt.
SECTION 10.12 Restrictive Agreements. Enter into any Debt which
contains any negative pledge on assets or any covenants more restrictive than
the provisions of Articles VIII, IX and X hereof, or which restricts, limits or
otherwise encumbers its ability to incur Liens on or
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with respect to any of its assets or properties other than the assets or
properties securing such Debt.
ARTICLE XI
DEFAULT AND REMEDIES
SECTION 11.1 Events of Default. Each of the following shall
constitute an Event of Default, whatever the reason for such event and whether
it shall be voluntary or involuntary or be effected by operation of law or
pursuant to any judgment or order of any court or any order, rule or regulation
of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrower shall default in any payment of principal of any
Loan, Note or Reimbursement Obligation when and as due (whether at maturity, by
reason of acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise)
of interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue unremedied for three (3)
Business Days.
(c) Misrepresentation. Any representation or warranty made or deemed
to be made by the Borrower or any of its Subsidiaries under this Agreement, any
Loan Document or any amendment hereto or thereto, shall at any time prove to
have been incorrect or misleading in any material respect when made or deemed
made.
(d) Default in Performance of Certain Covenants. The Borrower shall
default in the performance or observance of any covenant or agreement contained
(i) in Section 7.1 or 7.2 of this Agreement and such default shall continue
unremedied for a period of three (3) Business Days after written notice thereof
from the Administrative Agent or any Lender or (ii) in Section 7.5(e)(i) or
Articles IX or X of this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The
Borrower or any Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
11.1) or any other Loan Document and such default shall continue for a period
of thirty (30) days after written notice thereof has been given to the Borrower
by the Administrative Agent.
(f) Hedging Agreement. Any termination payment shall be due by the
Borrower under any Hedging Agreement and such amount is not paid within thirty
(30) Business Days of the due date thereof.
(g) Debt Cross-Default. The Borrower or any of its Subsidiaries
shall (i) default in the payment of any Debt (other than the Notes or any
Reimbursement Obligation) the aggregate
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outstanding amount of which Debt is in excess of $1,000,000 beyond the period
of grace if any, provided in the instrument or agreement under which such Debt
was created, or (ii) default in the observance or performance of any other
agreement or condition relating to any Debt (other than the Notes or any
Reimbursement Obligation) the aggregate outstanding amount of which Debt is in
excess of $1,000,000 or contained in any instrument or agreement evidencing,
securing or relating thereto or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to
permit the holder or holders of such Debt (or a trustee or agent on behalf of
such holder or holders) to cause, with the giving of notice if required, any
such Debt to become due prior to its stated maturity (any applicable grace
period having expired).
(h) Other Cross-Defaults. The Borrower or any of its Subsidiaries
shall default in the payment when due, or in the performance or observance, of
any material obligation or material condition of any Material Contract unless,
but only as long as, the existence of any such default is being contested by
the Borrower or such Subsidiary in good faith by appropriate proceedings and
adequate reserves in respect thereof have been established on the books of the
Borrower or such Subsidiary to the extent required by GAAP.
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
(other than ITC Holding Company, Inc. and its Affiliates) shall obtain
ownership or control in one or more series of transactions of more than
twenty-five percent (25%) of the common stock or twenty-five percent (25%) of
the voting power of the Borrower entitled to vote in the election of members of
the board of directors of the Borrower or there shall have occurred under any
indenture or other instrument evidencing any Debt in excess of $1,000,000 any
"change in control" (as defined in such indenture or other evidence of Debt)
obligating the Borrower to repurchase, redeem or repay all or any part of the
Debt or capital stock provided for therein (any such event, a "Change in
Control").
(j) Voluntary Bankruptcy Proceeding. The Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (ii) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii)
consent to or fail to contest within sixty (60) days after the filing thereof
any petition filed against it in an involuntary case under such bankruptcy laws
or other laws, (iv) apply for or consent to, or fail to contest in a timely and
appropriate manner, the appointment of, or the taking of possession by, a
receiver, custodian, trustee, or liquidator of itself or of a substantial part
of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of
creditors, or (vii) take any corporate action for the purpose of authorizing
any of the foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding
shall be commenced against the Borrower or any Subsidiary thereof in any court
of competent jurisdiction seeking (i) relief under the federal bankruptcy laws
(as now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian,
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liquidator or the like for the Borrower or any Subsidiary thereof or for all or
any substantial part of their respective assets, domestic or foreign, and such
case or proceeding shall continue without dismissal or stay for a period of
sixty (60) consecutive days, or an order granting the relief requested in such
case or proceeding (including, but not limited to, an order for relief under
such federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of this Agreement or of any
other Loan Document shall for any reason cease to be valid and binding on the
Borrower or Subsidiary party thereto or any such Person shall so state in
writing, or this Agreement or any other Loan Document shall for any reason
cease to create a valid and perfected first priority Lien on, or security
interest in, any of the collateral purported to be covered thereby, in each
case other than in accordance with the express terms hereof or thereof.
(m) Termination Event. The occurrence of any of the following
events: (i) the Borrower or any ERISA Affiliate fails to make full payment
when due of all amounts which, under the provisions of any Pension Plan or
Section 412 of the Code, the Borrower or any ERISA Affiliate is required to pay
as contributions thereto, (ii) an accumulated funding deficiency in excess of
$500,000 occurs or exists, whether or not waived, with respect to any Pension
Plan, (iii) a Termination Event or (iv) the Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plan makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$500,000.
(n) Judgment. A judgment or order for the payment of money which
causes the aggregate amount of all such judgments to exceed $1,000,000 in any
Fiscal Year shall be entered against the Borrower or any of its Subsidiaries by
any court and such judgment or order shall continue without discharge or stay
for a period of thirty (30) days.
SECTION 11.2 Remedies. Upon the occurrence of an Event of
Default, with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal
of and interest on the Loans, the Notes and the Reimbursement Obligations at
the time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(other than any Hedging Agreement) (including, without limitation, all L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters
of Credit shall have presented the documents required thereunder) and all other
Obligations (other than obligations owing under any Hedging Agreement), to be
forthwith due and payable, whereupon the same shall immediately become due and
payable without presentment, demand, protest or other notice of any kind, all
of which are expressly waived, anything in this Agreement or the other Loan
Documents to the contrary notwithstanding, and terminate the Credit Facility
and any right of the Borrower to request borrowings or Letters of Credit
thereunder; provided, that upon the occurrence of an Event of Default specified
in Section 11.1(j) or (k), the Credit Facility shall
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be automatically terminated and all Obligations (other than obligations owing
under any Hedging Agreement) shall automatically become due and payable.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which presentment for honor shall not have occurred at the time of
an acceleration pursuant to the preceding paragraph, require the Borrower at
such time to deposit in a cash collateral account opened by the Administrative
Agent an amount equal to the aggregate then undrawn and unexpired amount of
such Letters of Credit. Amounts held in such cash collateral account shall be
applied by the Administrative Agent to the payment of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay the other Obligations. After all such Letters of Credit shall have
expired or been fully drawn upon, the Reimbursement Obligation shall have been
satisfied and all other Obligations shall have been paid in full, the balance,
if any, in such cash collateral account shall be returned to the Borrower.
(c) Rights of Collection. Exercise on behalf of the Lenders all of
its other rights and remedies under this Agreement, the other Loan Documents
and Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 11.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy
given hereunder or under the Loan Documents or that may now or hereafter exist
in law or in equity or by suit or otherwise. No delay or failure to take
action on the part of the Administrative Agent or any Lender in exercising any
right, power or privilege shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or privilege preclude other
or further exercise thereof or the exercise of any other right, power or
privilege or shall be construed to be a waiver of any Event of Default. No
course of dealing between the Borrower, the Administrative Agent and the
Lenders or their respective agents or employees shall be effective to change,
modify or discharge any provision of this Agreement or any of the other Loan
Documents or to constitute a waiver of any Event of Default.
ARTICLE XII
THE ADMINISTRATIVE AGENT
SECTION 12.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints First Union as Administrative Agent of such Lender
under this Agreement and the other Loan Documents for the term hereof and each
such Lender irrevocably authorizes First Union as Administrative Agent for such
Lender, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to the Administrative Agent by the terms
of this Agreement and such other Loan Documents, together with such other
powers as are reasonably
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incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein
and therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or the other Loan Documents or otherwise
exist against the Administrative Agent. Any reference to the Administrative
Agent in this Article XII shall be deemed to refer to the Administrative Agent
solely in its capacity as Administrative Agent and not in its capacity as a
Lender.
SECTION 12.2 Delegation of Duties. The Administrative Agent may
execute any of its respective duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. The
Administrative Agent shall not be responsible for the negligence or misconduct
of any agents or attorneys-in-fact selected by the Administrative Agent with
reasonable care.
SECTION 12.3 Exculpatory Provisions. Neither the Administrative
Agent nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned solely by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any of its Subsidiaries
or any officer thereof contained in this Agreement or the other Loan Documents
or in any certificate, report, statement or other document referred to or
provided for in, or received by the Administrative Agent under or in connection
with, this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of the Borrower or any of its
Subsidiaries to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries.
SECTION 12.4 Reliance by the Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, consent, certificate,
affidavit, letter, cablegram, telegram, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Borrower), independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless such
Note shall have been transferred in accordance with Section 13.10 hereof. The
Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement and the other Loan Documents unless it shall
first receive such advice or concurrence of the Required Lenders (or, when
expressly required hereby or by the relevant other Loan Document, all the
Lenders) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by
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it by reason of taking or continuing to take any such action except for its own
gross negligence or willful misconduct. The Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement and the Notes in accordance with a request of the Required Lenders
(or, when expressly required hereby, all the Lenders), and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Notes.
SECTION 12.5 Notice 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 it has received notice from a Lender or the
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event
that the Administrative Agent receives such a notice, it shall promptly give
notice thereof to the Lenders. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably
directed by the Required Lenders; provided that unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders, except to the extent
that other provisions of this Agreement expressly require that any such action
be taken or not be taken only with the consent and authorization or the request
of the Lenders or Required Lenders, as applicable.
SECTION 12.6 Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of the Borrower or any of its Subsidiaries,
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 has, independently and without reliance upon the
Administrative Agent or any other Lender, and based on such documents and
information as it has deemed appropriate, made its own appraisal of and
investigation into the business, operations, property, financial and other
condition and creditworthiness of the Borrower and its Subsidiaries and made
its own decision to make its Loans and issue or participate in Letter of Credit
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent hereunder or by the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
operations, property, financial and other condition or creditworthiness of the
Borrower or any of its Subsidiaries which may come into the possession of the
Administrative Agent or any of its respective officers, directors, employees,
agents, attorneys-in-fact, Subsidiaries or Affiliates.
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SECTION 12.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the respective amounts of their Commitment Percentages,
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind whatsoever which may at any time (including, without limitation, at any
time following the payment of the Notes or any Reimbursement Obligation) be
imposed on, incurred by or asserted against the Administrative Agent in any way
relating to or arising out of this Agreement or the other Loan Documents, or
any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the
Administrative Agent's bad faith, gross negligence or willful misconduct. The
agreements in this Section 12.7 shall survive the payment of the Notes, any
Reimbursement Obligation and all other amounts payable hereunder and the
termination of this Agreement.
SECTION 12.8 The Administrative Agent in Its Individual Capacity.
The Administrative Agent and its respective Subsidiaries and Affiliates may
make loans to, accept deposits from and generally engage in any kind of
business with the Borrower as though the Administrative Agent were not an
Administrative Agent hereunder. With respect to any Loans made or renewed by it
and any Note issued to it and with respect to any Letter of Credit issued by it
or participated in by it, the Administrative Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Administrative Agent, and the
terms "Lender" and "Lenders" shall include the Administrative Agent in its
individual capacity.
SECTION 12.9 Resignation of the Administrative Agent; Successor
Administrative Agent. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000 and, so long as no Default or Event of Default has occurred and is
continuing, such appointment shall be consented to by the Borrower (which
consent shall not be unreasonably withheld or delayed). If no successor
Administrative Agent shall have been so appointed by the Required Lenders and
shall have accepted such appointment within thirty (30) days after the
Administrative Agent's giving of notice of resignation, then the Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which successor shall have minimum capital and surplus of at least $500,000,000
and, so long as no Default or Event of Default has occurred and is continuing,
such appointment shall be consented to by the Borrower (which consent shall not
be unreasonably withheld or delayed). Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent, such
successor Administrative Agent shall thereupon succeed to and become vested
with all rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder. After any
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retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Section 12.9 shall continue in effect for its benefit in
respect of any actions taken or omitted to be taken by it while it was acting
as Administrative Agent.
SECTION 12.10 The Administrative Agent. The Administrative Agent
hereby agrees that with respect to any amendment, modification or waiver of
this Agreement and the other Loan Documents, the Administrative Agent shall be
responsible for the preparation, documentation and execution thereof. In
addition, with respect to any action or decision requiring consent or approval
of any Lenders, the Administrative Agent shall be responsible for requesting
such consent or approval from the Lenders.
ARTICLE XIII
MISCELLANEOUS
SECTION 13.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing, or by
telephone subsequently confirmed in writing. Any notice shall be effective if
delivered by hand delivery or sent via telecopy, recognized overnight courier
service or certified mail, return receipt requested, and shall be presumed to be
received by a party hereto (i) on the date of delivery if delivered by hand or
sent by telecopy, (ii) on the next Business Day if sent by recognized overnight
courier service and (iii) on the third Business Day following the date sent by
certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to it at the
following addresses, or any other address as to which all the other parties are
notified in writing.
If to the Borrower: MindSpring Enterprises, Inc.
0000 Xxxx Xxxxxxxxx Xx., XX, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Mr. Xxxxxxx Xxxxxx, Chief Executive Officer
Telephone No.: (000) 000-0000 (ext. 2200)
Telecopy No.: (000) 000-0000
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With copies to: Xxxxx & Xxxxxxx, L.L.P.
(which shall 000 00xx Xxxxxx, X.X.
not constitute notice) Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to First Union as First Union National Bank
Administrative Agent: Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to any Lender: To the Address set forth on Schedule 1 hereto
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued.
SECTION 13.2 Expenses; Indemnity. The Borrower will (a) pay all
out-of-pocket expenses of the Administrative Agent in connection with (i) the
preparation, execution and delivery of this Agreement and each other Loan
Document, whenever the same shall be executed and delivered, including without
limitation all out-of-pocket syndication and due diligence expenses and
reasonable fees and disbursements of counsel for the Administrative Agent and
(ii) the preparation, execution and delivery of any waiver, amendment or
consent by the Administrative Agent or the Lenders relating to this Agreement
or any other Loan Document, including without limitation reasonable fees and
disbursements of counsel for the Administrative Agent, (b) pay all reasonable
out-of-pocket expenses of the Administrative Agent and each Lender actually
incurred in connection with the enforcement of any rights and remedies of the
Administrative Agent and Lenders under the Credit Facility, including
consulting with appraisers, accountants, engineers, attorneys and other Persons
concerning the nature, scope or value of any right or remedy of the
Administrative Agent or any Lender hereunder or under any other Loan Document
or any factual matters in connection therewith, which expenses shall include
without limitation the reasonable fees and disbursements of such Persons, and
(c) indemnify and hold harmless the Administrative Agent and the Lenders, and
their respective parents, Subsidiaries, Affiliates, employees, agents, officers
and directors (each such Person referred to hereafter in this paragraph as an
"Indemnified Party"), from and against any losses, penalties, fines,
liabilities, damages, costs and expenses, for which any Indemnified Party may
become liable to any third party in connection with any claim, investigation,
litigation or other proceeding (whether or not the Administrative Agent or any
Lender is a party thereto) and the
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prosecution and defense thereof, arising out of or in any way connected with
this Agreement, any other Loan Document or the Loans, including without
limitation reasonable attorney's and consultant's fees, except to the extent
that any of the foregoing result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
SECTION 13.3 Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the
continuance thereof, the Lenders and any assignee or participant of a Lender in
accordance with Section 13.10 are hereby authorized by the Borrower at any time
or from time to time, without notice to the Borrower or to any other Person,
any such notice being hereby expressly waived, to set off and to appropriate
and to apply any and all deposits (general or special, time or demand,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured) and any other indebtedness at any time
held or owing by the Lenders, or any such assignee or participant to or for the
credit or the account of the Borrower against and on account of the Obligations
irrespective of whether or not (a) the Lenders shall have made any demand under
this Agreement or any of the other Loan Documents or (b) the Administrative
Agent shall have declared any or all of the Obligations to be due and payable
as permitted by Section 11.2 and although such Obligations shall be contingent
or unmatured.
SECTION 13.4 Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of North
Carolina, without reference to the conflicts or choice of law principles
thereof.
SECTION 13.5 Consent to Jurisdiction. The Borrower hereby
irrevocably consents to the personal jurisdiction of the state and federal
courts located in Mecklenburg County, North Carolina, in any action, claim or
other proceeding arising out of any dispute in connection with this Agreement,
the Notes and the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations. The Borrower
hereby irrevocably consents to the service of a summons and complaint and other
process in any action, claim or proceeding brought by the Administrative Agent
or any Lender in connection with this Agreement, the Notes or the other Loan
Documents, any rights or obligations hereunder or thereunder, or the
performance of such rights and obligations, on behalf of itself or its
property, in the manner specified in Section 13.1. Nothing in this Section 13.5
shall affect the right of the Administrative Agent or any Lender to serve legal
process in any other manner permitted by Applicable Law or affect the right of
the Administrative Agent or any Lender to bring any action or proceeding
against the Borrower or its properties in the courts of any other
jurisdictions.
SECTION 13.6 Binding Arbitration; Waiver of Jury Trial.
(a) Binding Arbitration. Upon demand of any party, whether made before or
after institution of any judicial proceeding, any dispute, claim or controversy
arising out of, connected with or relating to the Notes or any other Loan
Documents ("Disputes"), between or among parties to the Notes or any other Loan
Document shall be resolved by binding arbitration as
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provided herein. Institution of a judicial proceeding by a party does not waive
the right of that party to demand arbitration hereunder. Disputes may include,
without limitation, tort claims, counterclaims, claims brought as class
actions, claims arising from Loan Documents executed in the future, disputes as
to whether a matter is subject to arbitration, or claims concerning any aspect
of the past, present or future relationships arising out of or connected with
the Loan Documents. Arbitration shall be conducted under and governed by the
Commercial Financial Disputes Arbitration Rules (the "Arbitration Rules") of
the American Arbitration Association and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Charlotte, North Carolina. The
expedited procedures set forth in Rule 51, et seq. of the Arbitration Rules
shall be applicable to claims of less than $1,000,000. All applicable statutes
of limitation shall apply to any Dispute. A judgment upon the award may be
entered in any court having jurisdiction. Notwithstanding anything foregoing to
the contrary, any arbitration proceeding demanded hereunder shall begin within
ninety (90) days after such demand thereof and shall be concluded within
one-hundred and twenty (120) days after such demand. These time limitations may
not be extended unless a party hereto shows cause for extension and then such
extension shall not exceed a total of sixty (60) days. The panel from which all
arbitrators are selected shall be comprised of licensed attorneys. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where the
hearing will be conducted. The parties hereto do not waive any applicable
Federal or state substantive law except as provided herein. Notwithstanding the
foregoing, this paragraph shall not apply to any Hedging Agreement that is a
Loan Document.
(b) Jury Trial. THE ADMINISTRATIVE AGENT, EACH LENDER AND THE BORROWER
HEREBY ACKNOWLEDGE THAT BY AGREEING TO BINDING ARBITRATION THEY HAVE IRREVOCABLY
WAIVED THEIR RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM
OR OTHER PROCEEDING ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS
AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS
HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS.
(c) Preservation of Certain Remedies. Notwithstanding the preceding
binding arbitration provisions, the parties hereto and the other Loan Documents
preserve, without diminution, certain remedies that such Persons may employ or
exercise freely, either alone, in conjunction with or during a Dispute. Each
such Person shall have and hereby reserves the right to proceed in any court of
proper jurisdiction or by self help to exercise or prosecute the following
remedies: (i) all rights to foreclose against any real or personal property or
other security by exercising a power of sale granted in the Loan Documents or
under Applicable Law or by judicial foreclosure and sale, (ii) all rights of
self help including peaceful occupation of property and collection of rents, set
off, and peaceful possession of property, (iii) obtaining provisional or
ancillary remedies including injunctive relief, sequestration, garnishment,
attachment, appointment of receiver and in filing an involuntary bankruptcy
proceeding, and (iv) when applicable, a judgment by confession of judgment.
Preservation of these remedies does not limit the power of an arbitrator to
grant similar remedies that may be requested by a party in a Dispute.
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SECTION 13.7 Reversal of Payments. To the extent the Borrower makes
a payment or payments to the Administrative Agent for the ratable benefit of
the Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and
effect as if such payment or proceeds had not been received by the
Administrative Agent.
SECTION 13.8 Injunctive Relief; Punitive Damages.
(a) The Borrower recognizes that, upon an Event of Default, any remedy of
law may prove to be inadequate relief to the Lenders. Therefore, the Borrower
agrees that the Lenders, at the Lenders' option, shall be entitled to temporary
and permanent injunctive relief in any such case without the necessity of
proving actual damages.
(b) The Administrative Agent, Lenders and the Borrower (on behalf of
itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
(c) The parties agree that they shall not have a remedy of punitive or
exemplary damages against any other party in any Dispute and hereby waive any
right or claim to punitive or exemplary damages they have now or which may arise
in the future in connection with any Dispute whether the Dispute is resolved by
arbitration or judicially.
SECTION 13.9 Accounting Matters. All financial and accounting
calculations, measurements and computations made for any purpose relating to
this Agreement, including, without limitation, all computations utilized by the
Borrower or any Subsidiary thereof to determine compliance with any covenant
contained herein, shall, except as otherwise expressly contemplated hereby or
unless there is an express written direction by the Administrative Agent to the
contrary agreed to by the Borrower, be performed in accordance with GAAP as in
effect on the Closing Date. In the event that changes in GAAP shall be mandated
by the Financial Accounting Standards Board, or any similar accounting body of
comparable standing, or shall be recommended by the Borrower's certified public
accountants, to the extent that such changes would modify such accounting terms
or the interpretation or computation thereof, such changes shall be followed in
defining such accounting terms only from and after the date the Borrower and
the Lenders shall have amended this Agreement to the extent necessary to
reflect any such changes in the financial covenants and other terms and
conditions of this Agreement.
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SECTION 13.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and inure
to the benefit of the Borrower, the Administrative Agent and the Lenders, all
future holders of the Notes, and their respective successors and assigns, except
that the Borrower shall not assign or transfer any of its rights or obligations
under this Agreement without the prior written consent of each Lender.
(b) Assignment by Lenders. Each Lender may, with the consent of the
Borrower (so long as no Default or Event of Default has occurred and is
continuing) and the consent of the Administrative Agent, which consents shall
not be unreasonably withheld, assign to one or more Eligible Assignees all or a
portion of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of the Extensions of Credit at
the time owing to it and the Notes held by it); provided that:
(i) each such assignment shall be of a constant, and not a
varying, percentage of all the assigning Lender's rights and obligations under
this Agreement;
(ii) if less than all of the assigning Lender's Commitment is to
be assigned, the Commitment so assigned shall not be less than $5,000,000;
(iii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance in the form of Exhibit G attached hereto (an
"Assignment and Acceptance"), together with any Note or Notes subject to such
assignment;
(iv) such assignment shall not, without the consent of the
Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the Notes
under the blue sky laws of any state; and
(v) the assigning Lender shall pay to the Administrative Agent an
assignment fee of $3,000 upon the execution by such Lender of the Assignment and
Acceptance; provided that no such fee shall be payable upon any assignment by a
Lender to an Affiliate thereof.
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof, (A) the
assignee thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the assignee
thereunder confirm to and
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73
agree with each other and the other parties hereto as set forth in such
Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and an Eligible Assignee together
with any Note or Notes subject to such assignment and the written consent to
such assignment as provided in Section 13.10(b), the Administrative Agent shall,
if such Assignment and Acceptance has been completed and is substantially in the
form of Exhibit G:
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the Register;
(iii) give prompt notice thereof to the Lenders and the Borrower;
and
(iv) promptly deliver a copy of such Assignment and Acceptance to
the Borrower.
Within five (5) Business Days after receipt of a copy of such Assignment and
Acceptance, the Borrower shall execute and deliver to the Administrative Agent,
in exchange for the surrendered Note or Notes, a new Note or Notes to the order
of such Eligible Assignee in amounts equal to the Commitment assumed by it
pursuant to such Assignment and Acceptance and a new Note or Notes to the order
of the assigning Lender in an amount equal to the Commitment retained by it
hereunder. Such new Note or Notes shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered Note or Notes,
shall be dated the effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of the assigned Notes delivered to the
assigning Lender. Each surrendered Note or Notes shall be canceled and returned
to the Borrower.
(f) Participations. Each Lender may sell participations to one or more
banks or other entities in all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Extensions of Credit and the Notes held by it); provided that:
(i) each such participation shall be in an amount not less than
$5,000,000;
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74
(ii) such Lender's obligations under this Agreement (including,
without limitation, its Commitment) shall remain unchanged;
(iii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations;
(iv) such Lender shall remain the holder of the Notes held by it
for all purposes of this Agreement;
(v) the Borrower, the Administrative Agent and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such participant the right to
approve any waivers, amendments or other modifications to this Agreement or any
other Loan Document other than waivers, amendments or modifications which would
reduce the principal of or the interest rate on any Loan or Reimbursement
Obligation, extend the term or increase the amount of the Commitment (except as
expressly permitted pursuant to Section 2.8), reduce the amount of any fees to
which such participant is entitled, extend any scheduled payment date for
principal of any Loan or, except as expressly contemplated hereby or thereby,
release substantially all of the Collateral; and
(vii) any such disposition shall not, without the consent of the
Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission to apply to qualify the Loans or the Notes
under the blue sky law of any state.
(g) Disclosure of Information; Confidentiality. The Administrative Agent
and the Lenders shall hold all non-public information with respect to the
Borrower or any Subsidiary thereof obtained pursuant to the Loan Documents in
accordance with their customary procedures for handling confidential
information; provided, that the Administrative Agent may disclose information
relating to this Agreement to Gold Sheets and other similar bank trade
publications, such information to consist of deal terms and other information
customarily found in such publications and provided further, that the
Administrative Agent and Lenders may disclose any such information to the
extent such disclosure is required by law or requested by any regulatory
authority. Any Lender may, in connection with any assignment, proposed
assignment, participation or proposed participation pursuant to this Section
13.10, disclose to the assignee, participant, proposed assignee or proposed
participant, any information relating to the Borrower, or any Subsidiary
thereof, furnished to such Lender by or on behalf of the Borrower or any
Subsidiary thereof; provided, that prior to any such disclosure, each such
assignee, proposed assignee, participant or proposed participant shall agree
with the Borrower or such Lender (which in the case of an agreement with only
such Lender, the Borrower shall be recognized as a third party beneficiary
thereof) to preserve the confidentiality of any confidential information
relating to the Borrower or any Subsidiary thereof received from such Lender.
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(h) Certain Pledges or Assignments. Nothing herein shall prohibit any
Lender from pledging or assigning any Note to any Federal Reserve Bank in
accordance with Applicable Law.
SECTION 13.11 Amendments, Waivers and Consents. Except as set forth
below, any term, covenant, agreement or condition of this Agreement or any of
the other Loan Documents (other than any Hedging Agreement, the terms and
conditions of which may be amended, modified or waived by the parties thereto)
may be amended or waived by the Lenders, and any consent given by the Lenders,
if, but only if, such amendment, waiver or consent is in writing signed by the
Required Lenders (or by the Administrative Agent with the consent of the
Required Lenders) and delivered to the Administrative Agent and, in the case of
an amendment, signed by the Borrower; provided, that no amendment, waiver or
consent shall (a) increase the amount or extend the time of the obligation of
the Lenders to make Loans or issue or participate in Letters of Credit (except
as expressly permitted pursuant to Section 2.8), including, without limitation,
any waiver or modification of Section 8.12(c) or 8.12(d), (b) extend the
originally scheduled time or times of payment of the principal of any Loan or
Reimbursement Obligation (other than the waiver of prepayments required
pursuant to Section 2.5(b)(iii)) or the time or times of payment of interest on
any Loan or Reimbursement Obligation, (c) reduce the rate of interest or fees
payable on any Loan or Reimbursement Obligation, (d) reduce the principal
amount of any Loan or Reimbursement Obligation, (e) permit any subordination of
the principal or interest on any Loan or Reimbursement Obligation, (f) permit
any assignment (other than as specifically permitted or contemplated in this
Agreement) of any of the Borrower's rights and obligations hereunder, (g)
release any material portion of the Collateral or release any Security Document
(other than as specifically permitted or contemplated in this Agreement or the
applicable Security Document) or (h) amend the provisions of this Section 13.11
or the definition of Required Lenders, without the prior written consent of
each Lender. In addition, no amendment, waiver or consent to the provisions of
(a) Article XII shall be made without the written consent of the Administrative
Agent and (b) Article III without the written consent of the Issuing Lender
affected thereby.
SECTION 13.12 Performance of Duties. The Borrower's obligations under
this Agreement and each of the Loan Documents shall be performed by the
Borrower at its sole cost and expense.
SECTION 13.13 All Powers Coupled with Interest. All powers of
attorney and other authorizations granted to the Lenders, the Administrative
Agent and any Persons designated by the Administrative Agent or any Lender
pursuant to any provisions of this Agreement or any of the other Loan Documents
shall be deemed coupled with an interest and shall be irrevocable so long as
any of the Obligations remain unpaid or unsatisfied or the Credit Facility has
not been terminated.
SECTION 13.14 Survival of Indemnities. Notwithstanding any
termination of this Agreement, the indemnities to which the Administrative
Agent and the Lenders are entitled under the provisions of this Article XIII
and any other provision of this Agreement and the Loan Documents shall continue
in full force and effect and shall protect the Administrative Agent and the
Lenders against events arising after such termination as well as before.
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76
SECTION 13.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in this Agreement are for convenience only, and
neither limit nor amplify the provisions of this Agreement.
SECTION 13.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective only to the
extent of such prohibition or unenforceability without invalidating the
remainder of such provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 13.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and shall be binding upon all parties, their successors and assigns, and all of
which taken together shall constitute one and the same agreement.
SECTION 13.18 Term of Agreement. This Agreement shall remain in
effect from the Closing Date through and including the date upon which all
Obligations shall have been indefeasibly and irrevocably paid and satisfied in
full. The Administrative Agent is hereby permitted to release all Liens on the
Collateral in favor of the Administrative Agent, for the ratable benefit of
itself and the Lenders, upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses
hereunder and the termination of the Lender's Commitments. No termination of
this Agreement shall affect the rights and obligations of the parties hereto
arising prior to such termination.
SECTION 13.19 Inconsistencies with Other Documents; Independent Effect
of Covenants. (a) In the event there is a conflict or inconsistency between
this Agreement and any other Loan Document, the terms of this Agreement shall
control; provided, that any provision of the Security Documents which imposes
additional burdens on the Borrower or its Subsidiaries or further restricts the
rights of the Borrower or its Subsidiaries or gives the Administrative Agent or
Lenders additional rights shall not be deemed to be in conflict or inconsistent
with this Agreement and shall be given full force and effect.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles VIII, IX, or X hereof shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles VIII, IX, or X if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles VIII, IX, or X.
[Signature pages to follow]
71
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
[CORPORATE SEAL] MINDSPRING ENTERPRISES, INC., as Borrower
By: /s/ XXXXXXX XXXXXXXX
--------------------------------------
Name: Xxxxxxx Xxxxxxxx
---------------------------------
Title: CFO
---------------------------------
[Signature Pages Continue]
[Credit Agreement]
78
FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: /s/ C. XXXX XXXXXXX
--------------------------------------
Name: C. Xxxx Xxxxxxx
---------------------------------
Title: Vice President
--------------------------------
FIRST UNION CAPITAL MARKETS CORP.,
as Arranger
By: /s/ C. XXXX XXXXXXX
--------------------------------------
Name: C. Xxxx Xxxxxxx
---------------------------------
Title: Director
--------------------------------
[Credit Agreement]
79
XXXXXXX XXXXX CREDIT PARTNERS L.P.,
as Lender
By: /s/ XX XXXXX
--------------------------------------
Name: Xx Xxxxx
---------------------------------
Title: Managing Director
--------------------------------
[Credit Agreement]
80
ING (US) CAPITAL LLC, as Lender
By: /s/ XXXX XXXXXXXXXXX
--------------------------------------
Name: Xxxx Xxxxxxxxxxx
---------------------------------
Title: Managing Director
--------------------------------
[Credit Agreement]
81
NATIONSBANK, N.A., as Lender
By: /s/ XXXX X. XXXXXXX
--------------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title: Senior Vice President
--------------------------------
[Credit Agreement]
82
Schedule 1.1
(Lenders and Commitments)
--------------------------------------------------------------------------------
LENDER COMMITMENT COMMITMENT
PERCENTAGE
--------------------------------------------------------------------------------
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000 25% $25,000,000
Attention: Syndication Agency Services
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
--------------------------------------------------------------------------------
Xxxxxxx Sachs Credit Partners L.P.
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000 25% $25,000,000
Attention: Xxxx Xxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
--------------------------------------------------------------------------------
ING (US) Capital LLC
00 X. 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000 25% $25,000,000
Attention: Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
--------------------------------------------------------------------------------
NationsBank, N.A.
000 Xxxxxxxxx Xxxxxx XX
00xx Xxxxx
Xxxxxxx, XX 00000 25% $25,000,000
Attention: Xxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
--------------------------------------------------------------------------------
83
EXHIBIT A
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF REVOLVING CREDIT NOTE
84
NOTE
$ February , 1999
---------- --
FOR VALUE RECEIVED, the undersigned, MINDSPRING ENTERPRISES, INC., a
Delaware corporation, as borrower (the "Borrower"), promises to pay to the order
of _________________________________ (the "Lender"), at the place and times
provided in the Credit Agreement referred to below, the principal sum of
_________________ Dollars ($__________) or, if less, the aggregate unpaid
principal amount of all Loans made by the Lender to the Borrower from time to
time pursuant to that certain Credit Agreement, dated as of even date herewith
(as amended, restated or otherwise modified, the "Credit Agreement") among the
Borrower, the Lenders who are or may become a party thereto (collectively, the
"Lenders"), First Union Capital Markets Corp., as Arranger, and First Union
National Bank, as Administrative Agent. Capitalized terms used herein and not
defined herein shall have the meanings assigned thereto in the Credit Agreement.
The unpaid principal amount of this Note from time to time outstanding is
subject to mandatory repayment from time to time as provided in the Credit
Agreement and shall bear interest as provided in Section 4.1 of the Credit
Agreement. All payments of principal and interest on this Note shall be payable
in lawful currency of the United States of America in immediately available
funds to the account designated in the Credit Agreement.
This Note is entitled to the benefits of, and evidences Obligations
incurred under, the Credit Agreement, to which reference is made for a
description of the security for this Note and for a statement of the terms and
conditions on which the Borrower is permitted and required to make prepayments
and repayments of principal of the Obligations evidenced by this Note and on
which such Obligations may be declared to be immediately due and payable.
THIS NOTE SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ACCORDANCE WITH
THE LAWS OF NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF
LAW PRINCIPLES THEREOF.
The Debt evidenced by this Note is senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
The Borrower hereby waives all requirements as to diligence, presentment,
demand of payment, protest and (except as required by the Credit Agreement)
notice of any kind with respect to this Note.
85
IN WITNESS WHEREOF, the undersigned has executed this Note under seal as
of the day and year first above written.
MINDSPRING ENTERPRISES, INC.
[CORPORATE SEAL]
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Revolving Credit Note]
86
EXHIBIT B
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF BORROWING
87
NOTICE OF BORROWING
Dated as of:
--------
First Union National Bank,
as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you under Section
2.2(a) of the Credit Agreement dated as of February __, 1999 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among MINDSPRING ENTERPRISES, INC., a Delaware corporation, as borrower (the
"Borrower"), the lenders party thereto (the "Lenders"), First Union Capital
Markets Corp., as Arranger, and First Union National Bank, as Administrative
Agent.
1. The Borrower hereby requests that the Lenders make a Loan to the
Borrower in the aggregate principal amount of $___________. (Complete with an
amount in accordance with Section 2.2(a) of the Credit Agreement.)
2. The Borrower hereby requests that such Loan be made on the following
Business Day: _____________________. (Complete with a Business Day in accordance
with Section 2.2(a) of the Credit Agreement).
3. The Borrower hereby requests that the Loan bear interest at the
following interest rate, plus the Applicable Margin, as set forth below:
Principal Interest Period Termination Date for
Component (LIBOR Interest Period
of Loan Interest Rate Rate only) (if applicable)
[Base Rate or LIBOR
Rate]
4. The principal amount of all Loans and L/C Obligations outstanding as of
the date hereof (including the requested Loan) does not exceed the maximum
amount permitted to be outstanding pursuant to the terms of the Credit
Agreement.
88
5. All of the conditions applicable to the Loan requested herein as set
forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
6. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
89
IN WITNESS WHEREOF, the undersigned has executed this Notice of Borrowing
on this ____ day of _______, ____.
MINDSPRING ENTERPRISES, INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Notice of Borrowing]
90
EXHIBIT C
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF ACCOUNT DESIGNATION
91
NOTICE OF ACCOUNT DESIGNATION
Dated as of:
---------
First Union National Bank, as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you under Section
2.2(b) of the Credit Agreement dated as of February __, 1999 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement") by and
among MINDSPRING ENTERPRISES, INC., a Delaware corporation, as borrower (the
"Borrower"), the lenders party thereto (the "Lenders"), First Union Capital
Markets Corp., as Arranger, and First Union National Bank, as Administrative
Agent.
1. The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
-----------------------------
ABA Routing Number:
---------
Account Number:
-------------
2. This authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided to the Administrative
Agent.
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation this _____ day of _______, ____.
MINDSPRING ENTERPRISES, INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
92
EXHIBIT D
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF PREPAYMENT
93
NOTICE OF PREPAYMENT
Dated as of:
-------------
First Union National Bank,
as Administrative Agent
One First Union Center
000 Xxxxx Xxxxxxx Xxxxxx, XX-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you under Section
2.3(c) of the Credit Agreement dated as of February __, 1999 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement"), by and
among MINDSPRING ENTERPRISES, INC., a Delaware corporation, as borrower (the
"Borrower"), the lenders party thereto (the "Lenders"), First Union Capital
Markets Corp., as Arranger, and First Union National Bank, as Administrative
Agent.
1. The Borrower hereby provides notice to the Administrative Agent that it
shall repay the following [Base Rate Loans] and/or [LIBOR Rate Loans]:
____________________. (Complete with an amount in accordance with Section 2.3 of
the Credit Agreement.)
2. The Borrower shall repay the above-referenced Loans on the following
Business Day: _______________. (Complete with a Business Day no later than at
least one (1) Business Day subsequent to the date of this Notice of Prepayment
with respect to any Base Rate Loan and three (3) Business Days subsequent to
date of this Notice of Prepayment with respect to any LIBOR Rate Loan.)
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
94
IN WITNESS WHEREOF, the undersigned has executed this Notice of Prepayment
this ____ day of _______, ____.
MINDSPRING ENTERPRISES, INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Notice of Prepayment]
95
EXHIBIT E
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF NOTICE OF CONVERSION/CONTINUATION
96
NOTICE OF CONVERSION/CONTINUATION
Dated as of:
--------------
First Union National Bank, as Administrative Agent
Xxx Xxxxx Xxxxx Xxxxxx, XX-00
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (the "Notice") is
delivered to you under Section 4.2 of the Credit Agreement dated as of February
__, 1999 (as amended, restated, supplemented or otherwise modified, the "Credit
Agreement"), by and among MINDSPRING ENTERPRISES, INC., a Delaware corporation,
as borrower (the "Borrower"), the lenders party thereto (the "Lenders"), First
Union Capital Markets Corp., as Arranger, and First Union National Bank, as
Administrative Agent.
1. This Notice is submitted for the purpose of: (Check one and
complete applicable information in accordance with the Credit Agreement.)
[ ] Converting all or a portion of a Base Rate Loan into a
LIBOR Rate Loan
(a) The aggregate outstanding principal balance of such Loan is
$ .
---------------
(b) The principal amount of such Loan to be converted is
$ .
---------------
(c) The requested effective date of the conversion of such Loan is
.
---------------
(d) The requested Interest Period applicable to the converted Loan
is .
---------------
[ ] Converting a portion of LIBOR Rate Loan into a Base Rate
Loan
(a) The aggregate outstanding principal balance of such Loan is
$ .
---------------
(b) The last day of the current Interest Period for such Loan is
.
---------------
97
(c) The principal amount of such Loan to be converted is
$ .
---------------
(d) The requested effective date of the conversion of such Loan is
.
---------------
[ ]Continuing all or a portion of a LIBOR Rate Loan as a LIBOR Rate
Loan
(a) The aggregate outstanding principal balance of such Loan is
$ .
---------------
(b) The last day of the current Interest Period for such Loan is
.
---------------
(c) The principal amount of such Loan to be continued is
$ .
---------------
(d) The requested effective date of the continuation of such Loan
is .
---------------
(e) The requested Interest Period applicable to the continued Loan
is .
---------------
2. The principal amount of all Loans and L/C Obligations outstanding as
of the date hereof does not exceed the maximum amount permitted to be
outstanding pursuant to the terms of the Credit Agreement.
3. All of the conditions applicable to the conversion or continuation
of the Loan requested herein as set forth in the Credit Agreement have been
satisfied or waived as of the date hereof and will remain satisfied or waived to
the date of such Loan.
4. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
2
98
IN WITNESS WHEREOF, the undersigned has executed this Notice of
Conversion/Continuation this ____ day of __________, ____.
MINDSPRING ENTERPRISES, INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Notice of Conversion/Continuation]
99
EXHIBIT F
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
100
OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of MINDSPRING ENTERPRISES, INC. (the
"Borrower"), hereby certifies to the Administrative Agent and the Lenders (each
as defined in the Credit Agreement referred to below), as follows:
1. This Certificate is delivered to you pursuant to Section 7.2 of the
Credit Agreement dated as of February __, 1999 (as amended, restated,
supplemented or otherwise modified, the "Credit Agreement"), by and among the
Borrower, the lenders party thereto (the "Lenders"), First Union Capital Markets
Corp., as Arranger, and First Union National Bank, as Administrative Agent.
Capitalized terms used herein and not defined herein shall have the meanings
assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of the Borrower [and its
Subsidiaries] dated as of _______________ and for the _______________ PERIOD[S]
then ended and such statements fairly present in all material respects the
financial condition of the Borrower [and its Subsidiaries] as of the dates
indicated and the results of [their] [its] operations and cash flows for the
period[s] indicated.
3. I have reviewed the terms of the Credit Agreement, and the related Loan
Documents and have made, or caused to be made under my supervision, a review in
reasonable detail of the transactions and the condition of the Borrower [and its
Subsidiaries] during the accounting period covered by the financial statements
referred to in Paragraph 2 above. Such review has not disclosed the existence
during or at the end of such accounting period of any condition or event that
constitutes a Default or an Event of Default, nor do I have any knowledge of the
existence of any such condition or event as at the date of this Certificate
[except, if such condition or event existed or exists, describe the nature and
period of existence thereof and what action the Borrower has taken, is taking
and proposes to take with respect thereto].
4. The Applicable Margin and calculations determining such figure are set
forth on the attached Schedule 1 and the Borrower [and its Subsidiaries]
[is/are] in compliance with the financial covenants contained in Article IX of
the Credit Agreement as shown on such Schedule 1.
[Signature Page Follows]
101
WITNESS the following signature as of the _____ day of _________, ____.
MINDSPRING ENTERPRISES, INC.
By:
--------------------------------------
Name:
---------------------------------
Title:
--------------------------------
[Officer's Compliance Certificate]
102
Schedule 1
to
Officer's Compliance Certificate
103
EXHIBIT G
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF ASSIGNMENT AND ACCEPTANCE
104
ASSIGNMENT AND ACCEPTANCE
Dated as of:
---------
Reference is made to the Credit Agreement dated as of February __, 1999
(as amended, restated, supplemented or otherwise modified, the "Credit
Agreement") by and among MINDSPRING ENTERPRISES, INC., a Delaware corporation
(the "Borrower"), the lenders party thereto (the "Lenders"), First Union Capital
Markets Corp., as Arranger, and First Union National Bank, as Administrative
Agent. Capitalized terms used herein which are not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
_____________ (the "Assignor") and _____________ (the "Assignee") agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, as of the Effective Date (as
defined below), a ____% interest in and to all of the Assignor's interest,
rights and obligations with respect to its Commitment and Loans (including such
percentage of the outstanding L/C Obligations) and the Assignor thereby retains
____% of its interest therein. This Assignment and Acceptance is entered
pursuant to, and authorized by, Section 13.10(b) of the Credit Agreement.
2. The Assignor (i) represents that, as of the date hereof, its Commitment
Percentage (without giving effect to assignments thereof which have not yet
become effective) under the Credit Agreement is ____%, the outstanding balances
of its Loans (including its Commitment Percentage of the outstanding L/C
Obligations) (unreduced by any assignments thereof which have not yet become
effective) under the Credit Agreement is $__________; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement or any other instrument or document furnished pursuant thereto, other
than that the Assignor is the legal and beneficial owner of the interest being
assigned by it hereunder and that such interest is free and clear of any adverse
claim; (iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or its Subsidiaries or
the performance or observance by the Borrower or its Subsidiaries of any of
their respective obligations under the Credit Agreement or any other instrument
or document furnished or executed pursuant thereto; and (iv) attaches the Note
delivered to it under the Credit Agreement and requests that the Borrower
exchange such Note for new Notes payable to each of the Assignor and the
Assignee as follows:
[Assignment and Acceptance]
105
Note Payable to the Order of: Principal Amount of Note:
$
--------- ---------
$
--------- ---------
3. The Assignee (i) represents and warrants that it is legally authorized
to enter into this Assignment and Acceptance; (ii) confirms that it has received
a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 7.1 thereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (iii) agrees
that it will, independently and without reliance upon the Assignor or any other
Lender or Administrative Agent and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iv) confirms that it is
an Eligible Assignee; (v) appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (vi) agrees that it will perform in accordance
with their terms all the obligations which by the terms of the Credit Agreement
and the other Loan Documents are required to be performed by it as a Lender;
(vii) agrees to hold all confidential information in a manner consistent with
the provisions of Section 13.10(g) of the Credit Agreement; and (viii) includes
herewith for the Administrative Agent the two forms required by Section 4.11(e)
of the Credit Agreement (if not previously delivered).
4. The effective date for this Assignment and Acceptance shall be as set
forth in Section 1 of Schedule 1 hereto (the "Effective Date"). Following the
execution of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for, to the extent required by the Credit Agreement,
consent by the Borrower and the Administrative Agent and acceptance and
recording in the Register.
5. Upon such consents, acceptance and recording, from and after the
Effective Date, (i) the Assignee shall be a party to the Credit Agreement and
the other Loan Documents to which Lenders are parties and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Lender under each such agreement, and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement and the other Loan
Documents; provided, that to the extent that the Assignor retains any portion
of its Commitment, its rights and obligations under the Credit Agreement and
the other Loan Documents with respect to such retained portion of its
Commitment shall continue to be of full force and effect.
6. Upon such consents, acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments in respect of
the interest assigned hereby (including payments of principal, interest, fees
and other amounts) to the Assignee. The Assignor and
2
[Assignment and Acceptance]
106
Assignee shall make all appropriate adjustments in payments for periods prior
to the Effective Date or with respect to the making of this assignment directly
between themselves.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE DEEMED TO BE A CONTRACT UNDER
SEAL AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NORTH CAROLINA, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
WITNESS the following signatures as of the ______ day of _____________,
_____.
ASSIGNOR:
------------------------------------------
By:
--------------------------------------
Title:
-----------------------------------
ASSIGNEE:
------------------------------------------
By:
--------------------------------------
Title:
-----------------------------------
3
[Assignment and Acceptance]
107
Acknowledged and Consented to:(1)
MINDSPRING ENTERPRISES, INC.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
Consented to and Accepted by:
FIRST UNION NATIONAL BANK,
as Administrative Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
------------------------------
(1) If applicable pursuant to Section 13.10.
4
[Assignment and Acceptance]
108
Schedule 1
to
Assignment and Acceptance
1. Effective Date ,
------------ ----
2. Assignor's Interest
Prior to Assignment
(a) Commitment Percentage %
(b) Outstanding balance of Commitment Percentage of Loans $
--------------
(c) Outstanding balance of Assignor's Commitment
Percentage of the L/C Obligations $
--------------
3. Assigned Interest (from Section 1) of Loans %
-----
4. Assignee's Extensions of Credit
After Effective Date
(a) Total outstanding balance of
Assignee's Commitment Percentage of Loans
(line 2(b) times line 3) $
--------------
(b) Total outstanding balance of
Assignee's Commitment Percentage
of the L/C Obligations
(line 2(c) times line 3) $
--------------
5. Retained Interest of Assignor after
Effective Date
(a) Retained Interest (from Section 1) of
Commitment Percentage %
-----
(b) Outstanding balance of Assignor's
Commitment Percentage of Loans
(line 2(b) times line 5(a)) $
--------------
(c) Outstanding balance of Assignor's
109
Commitment Percentage of L/C Obligations
(line 2(c) times line 5(a)) $
--------------
6. Payment Instructions
(a) If payable to Assignor,
to the account of Assignor to:
-----------------------------------
-----------------------------------
ABA No.:
--------------------------
Account Name:
---------------------
Account No.:
----------------------
Attn:
-----------------------------
Ref:
------------------------------
(b) If payable to Assignee, to the account
of Assignee to:
-----------------------------------
-----------------------------------
ABA No.:
--------------------------
Account Name:
---------------------
Account No.:
----------------------
Attn:
-----------------------------
Ref:
------------------------------
2
110
EXHIBIT H
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF GUARANTY AND COLLATERAL AGREEMENT
111
[Insert]
G & C Agreement
112
EXHIBIT I-1
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF COMMITMENT INCREASE SUPPLEMENT
113
COMMITMENT INCREASE SUPPLEMENT
THIS COMMITMENT INCREASE SUPPLEMENT, dated as of ____________, ____ (this
"Commitment Increase Supplement"), to the Credit Agreement referred to below is
entered into by and among MINDSPRING ENTERPRISES, INC., a Delaware corporation,
as borrower (the "Borrower"), FIRST UNION NATIONAL BANK, as Administrative Agent
(the "Administrative Agent"), and ____________________________ (the "Increasing
Lender").
Statement of Purpose
The Borrower is party to a Credit Agreement dated as of February ___, 1999
(as supplemented hereby and as further amended, supplemented or otherwise
modified, the "Credit Agreement"), by and among the Borrower, the Increasing
Lender, the other Lenders who are or may become party thereto and the
Administrative Agent.
Pursuant to Section 2.8 of the Credit Agreement, the Borrower is entitled
to increase the total amount of the Aggregate Commitment thereunder by accepting
the offer of a Lender to increase its Aggregate Commitment thereunder. Pursuant
to Section 2.8 of the Credit Agreement, the Increasing Lender, the Borrower, and
the Administrative Agent hereby agree that the Aggregate Commitment of the
Increasing Lender under the Credit Agreement shall be increased as set forth
herein and in connection therewith shall execute this Commitment Increase
Supplement. All capitalized terms used and not defined herein shall have the
meanings given thereto in the Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. Aggregate Commitment Increase.
Section 1.1 Aggregate Commitment Increase. Pursuant to Section 2.8 of the
Credit Agreement, the Increasing Lender hereby agrees that its Aggregate
Commitment under the Credit Agreement shall be increased to $___________.
Section 1.2 Commitment Adjustment. If any Loans are outstanding on the
date hereof, the Administrative Agent shall make such transfer of funds as are
necessary in order that the outstanding balance of such Loans reflects the
Commitment Percentages of the Lenders after giving effect to the increase in the
Aggregate Commitment of the Increasing Lender and the corresponding increase in
the Aggregate Commitments pursuant hereto.
Section 1.3 Updated Schedule. Attached hereto is an updated Schedule 1 to
the Credit Agreement revised to include the increase in the Increasing Lender's
Commitment thereunder and the corresponding increase in the total amount of the
Aggregate Commitments.
114
SECTION 2. Representations and Warranties of the Borrower.
The Borrower hereby confirms that each of the representations and
warranties under the Loan Documents is true and correct in all material respects
as of the date hereof unless such representation or warranty relates to an
earlier date, in which such case it was true and correct as of such earlier
date, and that no Default or Event of Default has occurred or is continuing
under the Credit Agreement.
SECTION 3. General Provisions.
Section 3.1 Limited Effect. Except as supplemented hereby, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This Commitment Increase Supplement shall not be
deemed (i) to be a waiver of, or consent to, or a modification or amendment of,
any other term or condition of the Credit Agreement or (ii) to prejudice any
right or rights which the Administrative Agent or the Lenders may now have or
may have in the future under or in connection with the Credit Agreement or the
Loan Documents or any of the instruments or agreements referred to therein, as
the same may be amended or modified from time to time.
Section 3.2 Costs and Expenses. The Borrower hereby agrees to pay or
reimburse the Administrative Agent for all reasonable and customary
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of this Commitment Increase Supplement including,
without limitation, the reasonable fees and disbursements of counsel.
Section 3.3 Counterparts. This Commitment Increase Supplement may be
executed by one or more of the parties hereto in any number of separate
counterparts and all of said counterparts taken together shall be deemed to
constitute one and the same instrument.
Section 3.4 Governing Law. THIS COMMITMENT INCREASE SUPPLEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW
PRINCIPLES THEREOF.
[SIGNATURE PAGES FOLLOW]
115
IN WITNESS WHEREOF the undersigned have duly executed this Commitment
Increase Supplement as of the date first above written.
MINDSPRING ENTERPRISES, INC., as Borrower
[CORPORATE SEAL]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[SIGNATURE PAGES CONTINUE]
[Commitment Increase Supplement]
116
FIRST UNION NATIONAL BANK, as
Administrative Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[SIGNATURE PAGES CONTINUE]
[Commitment Increase Supplement]
117
[INCREASING LENDER]
[CORPORATE SEAL]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[Commitment Increase Supplement]
118
EXHIBIT I-2
to
Credit Agreement
dated as of February 17, 1999
by and among
MINDSPRING ENTERPRISES, INC.,
as Borrower,
the Lenders party thereto,
First Union Capital Markets Corp.,
as Arranger,
and
First Union National Bank,
as Administrative Agent
FORM OF NEW LENDER SUPPLEMENT
119
NEW LENDER SUPPLEMENT
THIS NEW LENDER SUPPLEMENT dated as of the ____ day of __________, 19___
(this "New Lender Supplement"), to the Credit Agreement referred to below is
entered into by and among MINDSPRING ENTERPRISES, INC., a Delaware corporation,
as borrower (the "Borrower"), FIRST UNION NATIONAL BANK, as Administrative
Agent (the "Administrative Agent"), and ____________________________ (the "New
Lender").
Statement of Purpose
The Borrower is party to a Credit Agreement dated as of February ____,
1999 (as supplemented hereby and as further amended, restated, supplemented or
otherwise modified, the "Credit Agreement"), by and among the Borrower, the
Lenders who are or may become party thereto and the Administrative Agent.
Pursuant to Section 2.8 of the Credit Agreement, the Borrower is entitled
to increase the total amount of the Aggregate Commitment thereunder by accepting
the offer of any Person (not then a Lender) constituting an Eligible Assignee to
become a new Lender thereunder. Pursuant to Section 2.8 of the Credit Agreement,
the New Lender, the Borrower and the Administrative Agent hereby agree that the
New Lender shall be a Lender under the Credit Agreement and in connection
therewith execute this New Lender Supplement. All capitalized terms used and not
defined herein shall have the meanings given thereto in the Credit Agreement.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the parties hereto hereby agree as follows:
SECTION 1. Joinder of New Lender.
Section 1.1 Joinder. Pursuant to Section 2.8 of the Credit Agreement, the
New Lender hereby agrees that it is a Lender under the Credit Agreement as if a
signatory thereto on the Closing Date, and the New Lender shall comply with and
be subject to and have the benefit of all of the terms, conditions, covenants,
agreements and obligations set forth therein. The New Lender hereby agrees that
each reference to a "Lender" or the "Lenders" in the Credit Agreement shall
include the New Lender. The New Lender acknowledges that it has received a copy
of the Credit Agreement and that it has read and understands the terms thereof.
Section 1.2 Commitment Adjustment. If any Loans are outstanding on the
date hereof, the Administrative Agent shall make such transfers of funds as are
necessary in order that the outstanding balance of such Loans reflects the
Commitment Percentages of the Lenders after giving effect to the joinder of the
New Lender pursuant to this New Lender Supplement and any increase in the
Aggregate Commitments pursuant hereto.
Section 1.3 Updated Schedule. Attached hereto is an updated Schedule 1 to
the Credit Agreement revised to include the joinder of the New Lender as a
Lender and its Commitment thereunder and the corresponding increase in the total
amount of the Aggregate Commitments.
120
SECTION 2. Representations and Warranties.
Section 2.1 Representations and Warranties of the Borrower. The Borrower
hereby confirms that each representation and warranty under the Loan Documents
is true and correct in all material respects as of the date hereof unless such
representation or warranty relates to an earlier date, in which case it was true
and correct as of such earlier date and that no Default or Event of Default has
occurred or is continuing under the Credit Agreement.
Section 2.2 Representations and Warranties of the New Lender. The New
Lender hereby represents and warrants that it is an Eligible Assignee, and it
has complied with the provisions of Section 4.11(e) of the Credit Agreement if
applicable thereto.
SECTION 3 General Provisions.
Section 3.1 Limited Effect. Except as supplemented hereby, the Credit
Agreement and each other Loan Document shall continue to be, and shall remain,
in full force and effect. This New Lender Supplement shall not be deemed (i) to
be a waiver of, or consent to, or a modification or amendment of, any other term
or condition of the Credit Agreement or (ii) to prejudice any right or rights
which the Administrative Agent or the Lenders may now have or may have in the
future under or in connection with the Credit Agreement or the Loan Documents or
any of the instruments or agreements referred to therein, as the same may be
amended or modified from time to time.
Section 3.2 Costs and Expenses. The Borrower hereby agrees to pay or
reimburse the Administrative Agent for all reasonable and customary
out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of this New Lender Supplement including, without
limitation, the reasonable fees and disbursements of counsel.
Section 3.3 Counterparts. This New Lender Supplement may be executed by
one or more of the parties hereto in any number of separate counterparts and all
of said counterparts taken together shall be deemed to constitute one and the
same instrument.
Section 3.4 Governing Law. THIS NEW LENDER SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NORTH CAROLINA, WITHOUT REFERENCE TO THE CONFLICTS OR CHOICE OF LAW PRINCIPLES
THEREOF.
[SIGNATURE PAGES FOLLOW]
121
IN WITNESS WHEREOF the undersigned have duly executed this New Lender
Supplement as of the date first above written.
MINDSPRING ENTERPRISES, INC., as Borrower
[CORPORATE SEAL]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[SIGNATURE PAGES CONTINUE]
[New Lender Supplement]
122
FIRST UNION NATIONAL BANK, as
Administrative Agent
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[SIGNATURE PAGES CONTINUE]
[New Lender Supplement]
123
[NEW LENDER]
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
[New Lender Supplement]
