EXHIBIT 10.50
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$150,000,000
CREDIT AGREEMENT
Dated as of December 17, 1997
As Amended and Restated as of December 16, 1998
Among
XPEDITE SYSTEMS, INC.
and
XPEDITE SYSTEMS HOLDINGS (UK) LIMITED,
as Borrowers,
the GUARANTORS party hereto,
the BANKS listed on the signature pages hereof,
NATIONSBANK, N.A.,
as Documentation Agent,
and
THE BANK OF NEW YORK,
as Administrative Agent
Arranged by
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC,
as Sole Lead Arranger
and
BNY CAPITAL MARKETS, INC.
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TABLE OF CONTENTS
Page
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ARTICLE 1
CREDIT FACILITY
Section 1.01 Commitment to Lend.................................. 7
Section 1.02 Manner of Borrowing................................. 8
Section 1.03 Interest............................................ 9
(a) Rates......................................... 9
(b) Payment....................................... 9
(c) Conversion and Continuation................... 9
(d) Maximum Interest Rate......................... 10
Section 1.04 Repayment........................................... 11
Section 1.05 Prepayments......................................... 11
(a) Optional Prepayments.......................... 11
(b) Mandatory Prepayments......................... 11
(c) Application to Types of Loans................. 11
Section 1.06 Limitation on Types of Loans........................ 12
Section 1.07 Reduction of Commitments............................ 12
(a) Mandatory Reductions.......................... 12
(b) Optional Reductions........................... 12
Section 1.08 Fees................................................ 13
(a) Commitment Fees............................... 13
(b) Agents' Fees................................. 13
(c) Fees Non-Refundable........................... 13
Section 1.09 Computation of Interest and Fees.................... 13
Section 1.10 Evidence of Indebtedness............................ 13
Section 1.11 Payments by the Borrowers........................... 13
(a) Time, Place and Manner........................ 13
(b) No Reductions................................. 14
(c) Extension of Payment Dates.................... 14
Section 1.12 Distribution of Payments by the Administrative Agent 14
Section 1.13 Taxes............................................... 15
(a) Taxes Payable by the Borrowers................ 15
(b) Credits and Deductions........................ 17
Section 1.14 Pro Rata Treatment.................................. 17
ARTICLE 2
CONDITIONS TO LOANS
Section 2.01 Conditions to Effectiveness of Amendment and
Restatement.......................................... 17
Section 2.02 Conditions to Each Loan.............................. 19
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
Section 3.01 Organization; Power; Qualification..................................... 20
Section 3.02 Subsidiaries........................................................... 20
Section 3.03 Authorization; Enforceability; Required Consents; Absence of Conflicts. 20
Section 3.04 Taxes.................................................................. 21
Section 3.05 Litigation............................................................. 21
Section 3.06 No Adverse Change or Event............................................. 21
Section 3.07 Additional Adverse Facts............................................... 22
Section 3.08 Investment Company Act................................................. 22
Section 3.09 Compliance With Applicable Law and Contracts........................... 22
Section 3.10 Substance Release and Disposal......................................... 22
Section 3.11 Senior Obligations..................................................... 22
ARTICLE 4
CERTAIN COVENANTS
Section 4.01 Preservation of Existence and Properties, Scope of Business,
Compliance With Law, Preservation of Enforceability.................... 23
Section 4.02 Insurance.............................................................. 23
Section 4.03 Additional Significant Subsidiaries.................................... 23
Section 4.04 Use of Proceeds........................................................ 24
Section 4.05 Indebtedness........................................................... 24
Section 4.06 Guaranties............................................................. 24
Section 4.07 Liens.................................................................. 25
Section 4.08 Merger or Consolidation; Acquisitions.................................. 25
Section 4.09 Disposition of Assets.................................................. 25
Section 4.10 Restricted Payments.................................................... 26
Section 4.11 Limitation on Restrictive Covenants.................................... 26
Section 4.12 Issuance or Disposition of Capital Securities.......................... 26
Section 4.13 Investments............................................................ 26
Section 4.14 Taxes of Other Persons................................................. 27
Section 4.15 Benefit Plans.......................................................... 27
Section 4.16 Transactions With Affiliates........................................... 27
Section 4.17 Substance Storage and Disposal......................................... 27
Section 4.18 Capital Expenditures................................................... 27
Section 4.19 Premiere Leverage Ratio................................................ 28
Section 4.20 Premiere Interest Coverage Ratio....................................... 28
Section 4.21 Minimum Consolidated Revenues.......................................... 28
Section 4.22 Xpedite Leverage Ratio................................................. 28
Section 4.23 Xpedite Interest Coverage Ratio........................................ 28
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ARTICLE 5
INFORMATION
Section 5.01 Information to Be Furnished........................................ 28
(a) Quarterly Financial Statements................................. 28
(b) Year-End Financial Statements; Accountants' Certificate........ 29
(c) Monthly Financial Statements................................... 29
(d) Officer's Certificate as to Financial Statements and Defaults.. 30
(e) Reports and Filings............................................ 30
(f) Requested Information.......................................... 30
(g) Notice of Defaults, Material Adverse Changes and Other
Matters........................................................ 30
Section 5.02 Accuracy of Financial Statements and Information.................. 31
(a) Financial Statements........................................... 31
(b) Other Information.............................................. 32
Section 5.03 Additional Covenants Relating to Disclosure........................ 33
(a) Accounting Methods and Financial Records....................... 33
(b) Fiscal Year.................................................... 33
(c) Visits, Inspections and Discussions............................ 33
Section 5.04 Authorization of Third Parties to Deliver Information.............. 33
ARTICLE 6
DEFAULT
Section 6.01 Events of Default................................................. 33
Section 6.02 Remedies Upon Event of Default.................................... 36
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
Section 7.01 Mandatory Suspension and Conversion of Eurocurrency Rate Loans.... 37
Section 7.02 Regulatory Changes................................................ 38
Section 7.03 Funding Losses.................................................... 38
Section 7.04 Certain Determinations............................................ 39
Section 7.05 Change of Lending Office.......................................... 39
Section 7.06 Replacement of Banks.............................................. 39
ARTICLE 8
GUARANTY
Section 8.01 Guaranty of Payment and Performance; Limitation of Guaranty...... 40
Section 8.02 Continuance and Acceleration of Guaranteed Obligations Upon
Certain Events................................................... 41
Section 8.03 Recovered Payments............................................... 41
Section 8.04 Nature of Guarantors' Obligations................................ 41
Section 8.05 No Release of Guarantors......................................... 42
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Section 8.06 Certain Waivers.................................................. 43
Section 8.07 Subordination of Rights Against the Borrowers and Collateral..... 44
ARTICLE 9
THE AGENTS
Section 9.01 Appointment and Powers............................................ 44
Section 9.02 Limitation on Administrative Agent's Liability.................... 44
Section 9.03 Defaults.......................................................... 45
Section 9.04 Rights as a Bank.................................................. 45
Section 9.05 Indemnification................................................... 46
Section 9.06 Non-Reliance on Administrative Agent and Other Banks.............. 46
Section 9.07 Resignation of the Administrative Agent........................... 46
Section 9.08 Execution and Amendment of Loan Documents on Behalf of the Banks.. 47
ARTICLE 10
MISCELLANEOUS
Section 10.01 Notices and Deliveries............................................ 47
Section 10.02 Expenses; Indemnification......................................... 49
Section 10.03 Amounts Payable Due Upon Request for Payment...................... 50
Section 10.04 Remedies of the Essence........................................... 50
Section 10.05 Rights Cumulative................................................. 50
Section 10.06 Confidentiality and Disclosures................................... 50
Section 10.07 Amendments; Waivers............................................... 51
Section 10.08 Set-Off; Suspension of Payment and Performance.................... 51
Section 10.09 Sharing of Recoveries............................................. 52
Section 10.10 Assignments and Participations.................................... 52
(a) Assignments.................................................. 52
(b) Participations............................................... 53
Section 10.11 Governing Law..................................................... 54
Section 10.12 Judicial Proceedings; Waiver of Jury Trial........................ 54
Section 10.13 Reference Bank.................................................... 55
Section 10.14 Severability of Provisions........................................ 55
Section 10.15 Counterparts...................................................... 55
Section 10.16 Survival of Obligations........................................... 55
Section 10.17 Entire Agreement.................................................. 55
Section 10.18 Successors and Assigns............................................ 55
Section 10.19 No Fiduciary Relationship Established by Loan Documents........... 55
Section 10.20 Judgment Currency................................................. 56
Section 10.21 Worldwide UK Security Agreement................................... 56
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ARTICLE 11
INTERPRETATION
Section 11.01 Defined Terms........................................... 56
Section 11.02 Other Interpretive Provisions........................... 72
Section 11.03 Accounting Matters...................................... 72
Section 11.04 Representations and Warranties.......................... 73
Section 11.05 Captions................................................ 73
Section 11.06 Interpretation and Related Documents.................... 73
Section 11.07 Undertaking by Premiere................................. 73
ANNEX A BANKS, LENDING OFFICES AND NOTICE ADDRESSES
Schedule 1.02 NOTICE OF BORROWING FOR LOANS
Schedule 1.03(c)(iv) NOTICE OF CONVERSION OR CONTINUATION
Schedule 1.05(a) NOTICE OF PREPAYMENT
Schedule 2.01(a)(i) CERTIFICATE AS TO RESOLUTIONS, ETC.
Schedule 2.01(a)(iv) FORM OF OPINION OF COUNSEL FOR THE LOAN PARTIES
Schedule 2.01(a)(v) FORM OF OPINION OF ENGLISH COUNSEL FOR XPEDITE
SYSTEMS HOLDINGS (UK) LIMITED
Schedule 2.01(a)(vi) FORM OF OPINION OF WINTHROP, STIMSON, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
Schedule 3.02 SCHEDULE OF SUBSIDIARIES
Schedule 3.03 SCHEDULE OF REQUIRED CONSENTS AND
GOVERNMENTAL APPROVALS
Schedule 3.10 SCHEDULE OF ENVIRONMENTAL MATTERS
Schedule 4.03 FORM OF SUBSIDIARY GUARANTY SUPPLEMENT
Schedule 4.05 SCHEDULE OF EXISTING INDEBTEDNESS
Schedule 4.06 SCHEDULE OF EXISTING GUARANTIES
Schedule 4.07 SCHEDULE OF EXISTING LIENS
Schedule 4.11 SCHEDULE OF PERMITTED RESTRICTIVE COVENANTS
Schedule 4.13 SCHEDULE OF EXISTING INVESTMENTS
Schedule 4.15 SCHEDULE OF EXISTING BENEFIT PLANS
Schedule 5.02(a) SCHEDULE OF HISTORICAL FINANCIAL INFORMATION
Schedule 10.10(a) NOTICE OF ASSIGNMENT
Schedule 11.01(a) SCHEDULE OF SUBSIDIARIES THAT ARE GUARANTORS AS OF THE
AGREEMENT DATE
Schedule 11.01(b) SECURITIES AND EXCHANGE COMMISSION FILINGS
Schedule 11.01(c) CALCULATION OF ADDITIONAL STERLING COST
EXHIBIT A FORM OF NOTE
EXHIBIT B FORM OF SECURITY AGREEMENT
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CREDIT AGREEMENT
Dated as of December 17, 1997
As Amended and Restated as of December 16, 1998
XPEDITE SYSTEMS, INC., a Delaware corporation (the "Company"), XPEDITE
SYSTEMS HOLDINGS (UK) LIMITED, an English corporation ("Xpedite UK", with each
of the Company and Xpedite UK individually a "Borrower" and collectively the
"Borrowers"), the GUARANTORS party hereto, the BANKS listed on the signature
pages hereof, NATIONSBANK, N.A., as Documentation Agent, and THE BANK OF NEW
YORK, as Administrative Agent, agree that the Credit Agreement among them dated
as of December 17, 1997, as amended by Amendment No. 1 dated as of February 27,
1998, shall be amended and restated as of December 16, 1998, subject to the
conditions to effectiveness set forth in Section 2.01, to read in its entirety
as follows (with certain terms used herein being defined in Article 11):
ARTICLE 1
CREDIT FACILITY
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Section 1.01 Commitment to Lend.
------------------
(a) Upon the terms and subject to the conditions of this Agreement,
each Bank agrees to make, from time to time during the period from the Restated
Agreement Date through the Commitment Termination Date, one or more Loans to
either Borrower in an aggregate unpaid principal amount (with respect to all
Loans made by such Bank to either Borrower and with the outstanding principal
amount of each Loan to Xpedite UK being, for these purposes, the Dollar
Equivalent thereof at such time) not exceeding at any time such Bank's
Commitment at such time; provided, however, that the Banks shall not make Loans
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to Xpedite UK if, after giving effect to such Loans, the Dollar Equivalent at
such time of the aggregate principal amount of all Loans to Xpedite UK then
outstanding would exceed the Sterling Sub-limit. Loans made to the Company
shall be denominated in Dollars and Loans made to Xpedite UK shall be
denominated in Sterling. Subject to Section 1.03 and the other terms and
conditions of this Agreement, (i) the Loans may, at the option of the applicable
Borrower, be made as, and from time to time continued as or converted into,
Eurocurrency Rate Loans of any permitted Type, or any combination thereof and
(ii) Loans made to the Company may, at the option of the Company, be made as,
and from time to time continued as or converted into, Base Rate Loans. The
aggregate amount of the Commitments on the Restated Agreement Date is
$150,000,000 and the Sterling Sub-limit on the Restated Agreement Date is
$70,000,000.
(b) Prior to April 30, 1999, the aggregate amount of the Commitments
may be increased to an amount not in excess of $200,000,000 (less the amount of
any mandatory reduction of the aggregate amount of the Commitments pursuant to
Section 1.07(a)) so long as additional lending commitments in respect of this
Agreement from lenders and in amounts
1
satisfactory to the Banks and the Managing Agents have been obtained, subject to
the agreement related thereto among the Company and the Managing Agents.
Section 1.02 Manner of Borrowing. (a) The applicable Borrower shall give
-------------------
the Administrative Agent notice (which shall be irrevocable) no later than 11:00
a.m. (New York City time) on (1) in the case of Eurocurrency Rate Loans to be
made to the Company, the third Eurocurrency Business Day, (2) in the case of
Eurocurrency Rate Loans to be made to Xpedite UK, the fourth Eurocurrency
Business Day and (3) in the case of Base Rate Loans to be made to the Company,
the Business Day, before the requested date for the making of Loans. Each such
notice shall be in the form of Schedule 1.02 and shall specify (i) the requested
-------------
date for the making of the requested Loans, which shall be a Eurocurrency
Business Day (or, in the case of Base Rate Loans to be made to the Company, a
Business Day), (ii) the Type or Types of Loans requested and (iii) the amount of
each such Type of Loan, the aggregate of which amounts for all Types of Loans
requested shall be, in the case of Loans made to the Company, $1,000,000 or any
integral multiple of $1,000,000 in excess thereof, or, if less than $1,000,000,
the aggregate amount of the unused Commitments and, in the case of Loans made to
Xpedite UK, (Pounds)500,000 or any integral multiple of (Pounds)500,000 in
excess thereof, or, if less than (Pounds)500,000, the aggregate amount of the
unused Sterling Sub-limit. Upon receipt of any such notice, the Administrative
Agent shall promptly notify each Bank of the contents thereof and of the amount
and Type of each Loan to be made by such Bank on the requested date specified
therein.
(b) Not later than 11:00 a.m. (New York City time) on each requested
date for the making of Loans, each Bank shall make available to the
Administrative Agent, in Dollars or Sterling, as the case may be, in funds
immediately available to the Administrative Agent (or, in the case of Loans
disbursed in Sterling, in funds as may then be customary for the settlement of
international transactions in Sterling) at the Administrative Agent's Office,
the Loans to be made by such Bank on such date. Any Bank's failure to make any
Loan to be made by it on the requested date therefor shall not relieve any other
Bank of its obligation to make any Loan to be made by such other Bank on such
date, but such other Bank shall not be liable for such failure.
(c) Unless the Administrative Agent shall have received notice from a
Bank prior to 10:00 a.m. (New York City time) on the requested date for the
making of any Loans that such Bank will not make available to the Administrative
Agent the Loans requested to be made by such Bank on such date, the
Administrative Agent may assume that such Bank has made such Loans available to
the Administrative Agent on such date in accordance with Section 1.02(b) and the
Administrative Agent in its sole discretion may, in reliance upon such
assumption, make available to the applicable Borrower on such date a
corresponding amount on behalf of such Bank. If and to the extent such Bank
shall not have so made available to the Administrative Agent the Loans requested
to be made by such Bank on such date and the Administrative Agent shall have so
made available to the applicable Borrower a corresponding amount on behalf of
such Bank, such Bank shall, on demand, pay to the Administrative Agent such
corresponding amount together with interest thereon, for each day from the date
such amount shall have been so made available by the Administrative Agent to the
applicable Borrower until the date such amount shall have been repaid to the
Administrative Agent, at a rate per annum equal to, in the case of Loans
denominated in Dollars, the Federal Funds Rate until (and including) the third
Business Day after demand is made and thereafter at the Base Rate and, in the
case of Loans denominated in Sterling, the overnight London interbank Sterling
rate, as determined by the
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Administrative Agent. If such Bank does not pay such corresponding amount
promptly upon the Administrative Agent's demand therefor, the Administrative
Agent shall promptly notify the applicable Borrower and such Borrower shall
immediately repay such corresponding amount to the Administrative Agent together
with accrued interest thereon at the applicable rate or rates provided in
Section 1.03(a). Nothing in this Section 1.02(c) shall be deemed to limit the
obligation of any Bank to make Loans hereunder or to limit the rights that the
Borrowers may have against any Bank for its failure to make any Loans hereunder.
(d) All Loans made available to the Administrative Agent in accordance
with Section 1.02(b) shall be disbursed by the Administrative Agent not later
than 12:00 noon (New York City time) on the requested date therefor in Dollars
or Sterling, as the case may be, in funds immediately available to the
applicable Borrower (or, in the case of Loans disbursed in Sterling, in funds as
may then be customary for the settlement of international transactions in
Sterling) by credit to an account of such Borrower at the Administrative Agent's
Office or in such other manner as may have been specified in the applicable
notice of borrowing and as shall be acceptable to the Administrative Agent.
Section 1.03 Interest.
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(a) Rates.
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(i) Subject to Section 1.03(a)(ii), each Loan shall bear interest
on the outstanding principal amount thereof at a rate per annum equal
to (A) in the case of Loans made to the Company, for so long as it is
a Base Rate Loan, the Base Rate as in effect from time to time plus 2.125%
----
and (B) for so long as it is a Eurocurrency Rate Loan, the applicable
Eurocurrency Rate plus 3.250%.
----
(ii) If all or any part of a Loan or any other amount due and payable
under the Loan Documents is not paid when due (whether at maturity, by reason of
notice of prepayment or acceleration or otherwise), such unpaid amount shall, to
the maximum extent permitted by Applicable Law, bear interest for each day
during the period from the date such amount became so due until it shall be paid
in full (whether before or after judgment) at a rate per annum equal to the
applicable Post-Default Rate.
(b) Payment.
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Interest shall be payable, in the case of Loans that are (i) Base Rate
Loans, on each Interest Payment Date, (ii) Eurocurrency Rate Loans, on the last
day of each applicable Interest Period (and, if an Interest Period is longer
than three months, at intervals of three months after the first day of such
Interest Period), (iii) any Loan, when such Loan shall be due (whether at
maturity, by reason of notice of prepayment or acceleration or otherwise) or
converted, but only to the extent then accrued on the amount then so due or
converted. Interest at the Post-Default Rate shall be payable on demand.
Interest on Loans denominated in Sterling shall be paid in Sterling.
(c) Conversion and Continuation.
---------------------------
(i) Subject to Section 7.03, all or any part of the principal amount
of Loans of any Type may, on any Business Day, be converted into any other Type
or Types of Loans (except that Loans made to Xpedite UK may not be converted
into Base Rate Loans), except that Base Rate Loans may be converted into
Eurocurrency Rate Loans only on a Eurocurrency Business Day.
(ii) Base Rate Loans shall continue as Base Rate Loans unless and
until such Loans are converted into Loans of another Type. Eurocurrency Rate
Loans of any Type shall
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continue as Loans of such Type until the end of the then current Interest Period
therefor, at which time they shall be automatically converted into, in the case
of Loans made to the Company, Base Rate Loans and, in the case of Loans made to
Xpedite UK, Eurocurrency Rate Loans having a one month Interest Period unless,
in either case, the applicable Borrower shall have given the Administrative
Agent notice in accordance with Section 1.03(c)(iv) requesting either that such
Loans continue as Loans of such Type for another Interest Period or that such
Loans be converted into Loans of another Type at the end of such Interest
Period.
(iii) Notwithstanding anything to the contrary contained in Section
1.03(c)(i) or (ii), during a Default, the Administrative Agent may notify the
Borrowers that Loans may only be converted into or continued as Loans of certain
specified Types and, thereafter, until no Default shall continue to exist, Loans
may not be converted into or continued as Loans of any Type other than one or
more of such specified Types.
(iv) The applicable Borrower shall give the Administrative Agent
notice (which shall be irrevocable) of each conversion of Loans or continuation
of Eurocurrency Rate Loans no later than 11:00 a.m. (New York City time) on, in
the case of a conversion of Loans made to the Company into Base Rate Loans, the
Business Day before, and, in the case of a conversion into or continuation of
Eurocurrency Rate Loans, the third Eurocurrency Business Day before, the
requested date of such conversion or continuation. Each notice of conversion or
continuation shall be in the form of Schedule 1.03(c)(iv) and shall specify (A)
--------------------
the requested date of such conversion or continuation, (B) the amount and Type
and, in the case of Eurocurrency Rate Loans, the last day of the applicable
Interest Period of the Loans to be converted or continued and (C) the amount and
Type or Types of Loans into which such Loans are to be converted or as which
such Loans are to be continued. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Bank of (x) the contents
thereof, (y) the amount and Type and, in the case of Eurocurrency Rate Loans,
the last day of the applicable Interest Period of each Loan to be converted or
continued by such Bank and (z) the amount and Type or Types of Loans into which
such Loans are to be converted or as which such Loans are to be continued.
(d) Maximum Interest Rate.
---------------------
Nothing contained in the Loan Documents shall require either Borrower
at any time to pay interest at a rate exceeding the Maximum Permissible Rate.
If interest payable by either Borrower on any date would exceed the maximum
amount permitted by the Maximum Permissible Rate, such interest payment shall
automatically be reduced to such maximum permitted amount, and interest for any
subsequent period, to the extent less than the maximum amount permitted for such
period by the Maximum Permissible Rate, shall be increased by the unpaid amount
of such reduction. Any interest actually received from a Borrower for any
period in excess of such maximum amount permitted for such period shall be
deemed to have been applied as a prepayment of the Loans of such Borrower.
Section 1.04 Repayment.
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The Loans shall mature and become due and payable, and shall be repaid by
the applicable Borrower in full, on the Commitment Termination Date.
Section 1.05 Prepayments.
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(a) Optional Prepayments.
--------------------
Either Borrower may, at any time and from time to time, prepay the Loans
made to it in whole or in part, without premium or penalty (but subject to
Section 7.03), except that any partial prepayment of Loans shall be in an
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aggregate principal amount of, in the case of Loans denominated in Dollars,
$1,000,000 or any integral multiple of $1,000,000 in excess thereof and, in the
case of Loans denominated in Sterling, (Pounds)500,000 or any integral multiple
of (Pounds)500,000 in excess thereof. The applicable Borrower shall give the
Administrative Agent notice of each prepayment pursuant to this Section 1.05(a)
no later than 11:00 a.m. (New York City time) on, in the case of a prepayment of
Base Rate Loans, the Business Day before, and, in the case of a prepayment of
Eurocurrency Rate Loans, the third Eurocurrency Business Day before, the date of
such prepayment. Each such notice of prepayment shall be in the form of
Schedule 1.05(a) and shall specify (i) the date such prepayment is to be made
----------------
and (ii) the amount and Type and, in the case of Eurocurrency Rate Loans, the
last day of the applicable Interest Period of the Loans to be prepaid. Upon
receipt of any such notice, the Administrative Agent shall promptly notify each
Bank of the contents thereof and the amount and Type and, in the case of
Eurocurrency Rate Loans, the last day of the applicable Interest Period of each
Loan of such Bank to be prepaid. Amounts to be prepaid pursuant to this Section
1.05(a) shall irrevocably be due and payable on the date specified in the
applicable notice of prepayment, together with interest thereon as provided in
Section 1.03(b). Any Loan that shall have been prepaid prior to the Commitment
Termination Date may, subject to the terms and conditions hereof, be reborrowed
prior to the Commitment Termination Date.
(b) Mandatory Prepayments.
---------------------
If, after giving effect to any partial or total reduction of the
Commitments pursuant to Section 1.07, the aggregate unpaid principal amount of
the Loans (with the unpaid principal amount of the Loans made to Xpedite UK
being, for these purposes, the Dollar Equivalent thereof at such time) exceeds
the aggregate Commitments, either or both of the Borrowers shall prepay the
Loans on the date of such reduction in an aggregate amount (with the amount of
any such prepayment of the Loans made to Xpedite UK being, for these purposes,
the Dollar Equivalent thereof at such time) equal to the amount of such excess,
together with interest thereon as provided in Section 1.03.
(c) Application to Types of Loans.
-----------------------------
Amounts prepaid by either Borrower pursuant to this Section 1.05 shall
be applied, unless otherwise specified by such Borrower, to prepay (i) in the
case of prepayments by the Company, Base Rate Loans of the Company, and (ii) (in
the case of the Company, to the extent that the amount of any such prepayment
exceeds the then outstanding aggregate principal amount of such Base Rate Loans)
the Eurocurrency Rate Loans of such Borrower in the order that the Interest
Periods for such Loans end. Amounts to be prepaid pursuant to this Section 1.05
shall be paid on the day specified therefor, whether or not such payment would
require a prepayment of Eurocurrency Rate Loans prior to the last day of an
applicable Interest Period or would result in losses, costs or expenses
compensable under Section 7.03.
Section 1.06 Limitation on Types of Loans.
----------------------------
Notwithstanding anything to the contrary contained in this Agreement, the
Borrowers shall borrow, prepay, convert and continue Loans in a manner such that
(a) the aggregate principal amount of Eurocurrency Rate Loans of the same Type
and having the same Interest Period shall at all times be not less than, in the
case of Loans denominated in Dollars, $1,000,000 and, in the case of Loans
denominated in Sterling, (Pounds)500,000, (b) there shall not be, at any one
time, more than six Interest Periods in effect with respect to Eurocurrency Rate
Loans of all Types and (c) no payment of Eurocurrency Rate Loans will have to be
made prior to the last day of an applicable Interest Period in order to repay
the Loans (subject to Section 1.11(c)) on the date specified in Section 1.04.
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Section 1.07 Reduction of Commitments.
------------------------
(a) Mandatory Reductions.
--------------------
In the event of any sale or disposition of investment securities by
Premiere or any Subsidiary permitted pursuant to Section 4.09(d)(i) (other than
any sale or disposition the Net Proceeds of which, together with the Net
Proceeds of all other such sales or dispositions since the Restated Agreement
Date, are not in excess of $5,000,000) (the Net Proceeds of such sale or
disposition in excess of $5,000,000 being hereinafter referred to for the
purposes of this Section 1.07(a) as "Recapture Proceeds"), the aggregate
Commitments shall, on the first Business Day following such sale or disposition,
be automatically reduced by an amount equal to (i) 100% of the first $10,000,000
of Recapture Proceeds and (ii) 50% of all other Recapture Proceeds.
(b) Optional Reductions.
-------------------
The Company may reduce the Commitments by giving the Administrative
Agent notice (which shall be irrevocable) thereof no later than 11:00 a.m. (New
York City time) on the third Business Day before the requested date of such
reduction, except that no reduction may reduce the Commitments to an amount less
than the aggregate unpaid principal amount of the Loans at such time (with the
amount of the unpaid Loans made to Xpedite UK being, for these purposes, the
Dollar Equivalent thereof at such time) and no partial reduction of the
Commitments shall be in an aggregate amount other than $1,000,000 or any
integral multiple of $1,000,000 in excess thereof. Upon receipt of any such
notice, the Administrative Agent shall promptly notify each Bank of the contents
thereof and the amount to which such Bank's Commitment is to be reduced. No
reduction of the Commitments shall reduce the Sterling Sub-limit except that if,
after giving effect to any such reduction of the Commitments, the aggregate
amount of the remaining Commitments would be less than the Sterling Sub-limit,
the Sterling Sub-limit thenceforth shall be such lesser amount.
Section 1.08 Fees.
----
(a) Commitment Fees.
---------------
The Borrowers shall pay to the Administrative Agent for the account of
each Bank a commitment fee on the daily amount of the unused Commitments (with
the amount of the utilization thereof consisting of Loans made to Xpedite UK
being, for these purposes, the Dollar Equivalent thereof on each such day) for
each day from the Restated Agreement Date through the Commitment Termination
Date at a rate per annum of 0.375%, payable in arrears on successive Quarterly
Dates and on the Commitment Termination Date. To the extent accrued and unpaid
prior to the Restated Agreement Date, the commitment fee payable pursuant to
this Section 1.08 prior to the amendment and restatement of this Agreement as of
the Restated Agreement Date shall be paid on the Restated Agreement Date.
(b) Agents' Fees.
------------
The Company or Premiere shall pay the fees payable pursuant to the
Agents' Fee Letters. Such fees shall be paid to the Persons, in the amounts and
at the times provided therein.
(c) Fees Non-Refundable.
-------------------
None of the fees payable under this Section 1.08 shall be refundable
in whole or in part.
Section 1.09 Computation of Interest and Fees.
--------------------------------
Interest calculated on the basis of the Eurocurrency Rate or the Federal
Funds Rate and the commitment fees shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed. Interest calculated on
the basis of the Prime Rate shall be computed on the basis of a year of 365 or
366 days, as
-6-
applicable, and paid for the actual number of days elapsed. Interest for any
period shall be calculated from and including the first day thereof to but
excluding the last day thereof.
Section 1.10 Evidence of Indebtedness.
------------------------
Each Bank's Loans and each Borrower's obligation to repay such Loans with
interest in accordance with the terms of this Agreement shall be evidenced by
this Agreement, the records of such Bank and a single Note of each Borrower
payable to the order of such Bank. The records of each Bank shall be prima
facie evidence of such Bank's Loans, and of accrued interest thereon and of all
payments made in respect thereof.
Section 1.11 Payments by the Borrowers.
-------------------------
(a) Time, Place and Manner.
----------------------
All payments due to the Administrative Agent under the Loan Documents
shall be made to the Administrative Agent at the Administrative Agent's Office
or at such other address as the Administrative Agent may designate by notice to
the applicable Borrower. All payments due to any Bank under the Loan Documents
shall, in the case of payments on account of principal of or interest on the
Loans or fees, be made to the Administrative Agent at the Administrative Agent's
Office and, in the case of all other payments, be made directly to such Bank at
its Domestic Lending Office or at such other address as such Bank may designate
by notice to the applicable Borrower. All payments due to any Bank under the
Loan Documents, whether made to the Administrative Agent or directly to such
Bank, shall be made for the account of, in the case of payments in respect of
Eurocurrency Rate Loans, such Bank's Eurocurrency Lending Office and, in the
case of all other payments, such Bank's Domestic Lending Office. A payment
shall not be deemed to have been made on any day unless such payment has been
received by the required Person, at the required place of payment, in Dollars
(or, in the case of the principal of and interest on the Loans made to Xpedite
UK, in Sterling) in funds immediately available to such Person at such place, no
later than 2:00 p.m. (New York City time) on such day.
(b) No Reductions.
-------------
All payments due to the Administrative Agent or any Bank under the
Loan Documents shall be made by the applicable Borrower without any reduction or
deduction whatsoever, including any reduction or deduction for any set-off,
recoupment, counterclaim or Tax, except, subject to Section 1.13, for any
withholding or deduction for Taxes required to be withheld or deducted under
Applicable Law.
(c) Extension of Payment Dates.
--------------------------
Whenever any payment to the Administrative Agent or any Bank under the
Loan Documents would otherwise be due on a day that is not a Business Day, or,
in the case of payments of the principal of Eurocurrency Rate Loans, a
Eurocurrency Business Day, such payment shall instead be due on the next
succeeding Business or Eurocurrency Business Day, as the case may be, unless, in
the case of a payment of the principal of Eurocurrency Rate Loans, such
extension would cause payment to be due in the next succeeding calendar month,
in which case such due date shall be advanced to the next preceding Eurocurrency
Business Day. If the date any payment under the Loan Documents is due is
extended (whether by operation of any Loan Document, Applicable Law or
otherwise), such payment shall bear interest for such extended time at the rate
of interest applicable hereunder.
Section 1.12 Distribution of Payments by the Administrative Agent.
----------------------------------------------------
(a) The Administrative Agent shall promptly distribute to each Bank
its ratable share of each payment received by the Administrative Agent under the
Loan Documents for the account of the Banks by
-7-
credit to an account of such Bank at the Administrative Agent's Office or by
wire transfer to an account of such Bank at an office of any other commercial
bank located in the United States.
(b) Unless the Administrative Agent shall have received notice from
the applicable Loan Party prior to the date on which any payment is due to the
Banks under the Loan Documents that such Loan Party will not make such payment
in full, the Administrative Agent may assume that such Loan Party has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent in its sole discretion may, in reliance upon such assumption, cause to be
distributed to each Bank on such due date a corresponding amount with respect to
the amount then due such Bank. If and to the extent such Loan Party shall not
have so made such payment in full to the Administrative Agent and the
Administrative Agent shall have so distributed to any Bank a corresponding
amount, such Bank shall, on demand, repay to the Administrative Agent the amount
so distributed together with interest thereon, for each day from the date such
amount is distributed to such Bank until the date such Bank repays such amount
to the Administrative Agent, at, in the case of any such payment denominated in
Sterling, the overnight London interbank Sterling rate, as determined by the
Administrative Agent, or, in all other cases, the Federal Funds Rate until (and
including) the third Business Day after demand is made and thereafter at the
Base Rate.
Section 1.13 Taxes.
-----
(a) Taxes Payable by the Borrowers.
------------------------------
If under Applicable Law any Tax (other than a Bank Tax) is required to be
withheld or deducted by either Borrower from, or is otherwise payable by such
Borrower in connection with, any payment to the Administrative Agent or any Bank
under the Loan Documents, such Borrower shall, subject to Section 1.13(a)(ii),
pay to the Administrative Agent or such Bank, as applicable, such additional
amounts as may be necessary so that the net amount received by the
Administrative Agent, or such Bank with respect to such payment, after
withholding or deducting all Taxes (other than Bank Taxes) required to be
withheld or deducted by the Borrower, is equal to the full amount payable under
the Loan Documents.
(i) Taxes Payable by the Administrative Agent or any Bank.
-----------------------------------------------------
The applicable Borrower shall, promptly upon request by the
Administrative Agent or any Bank for the payment thereof, but subject to
Section 1.13(a)(ii), pay to the Administrative Agent or such Bank, as the
case may be, (A) all Taxes (other than Bank Taxes, payable by the
Administrative Agent or such Bank, as the case may be) with respect to any
payment due to the Administrative Agent or such Bank under the Loan
Documents from such Borrower and (B) all Taxes payable by the
Administrative Agent or such Bank as a result of payments made by such
Borrower (whether made to a taxing authority or to the Administrative Agent
or such Bank) pursuant to this Section 1.13(a)(i).
(ii) Limitations.
-----------
Notwithstanding anything to the contrary contained herein, neither
Borrower shall be required to pay any additional amount in respect of any
Taxes pursuant to this Section 1.13 to any Bank (A) except to the extent
such Taxes are required to be withheld as a result of (1) in the case of a
Person that is a Bank on the Restated Agreement Date, a Regulatory Change
Enacted after the Restated Agreement Date and (2) in the case of a Person
that becomes a Bank after the Restated Agreement Date, a Regulatory Change
Enacted after such Person becomes a Bank or (B) to the extent such
withholding is required because such Bank (including any Person that
becomes a Bank or
-8-
a participant pursuant to Section 10.10) has failed to submit or submitted
incorrectly any form or certificate that it is entitled to so submit under
Applicable Law or required to submit pursuant to Section 1.13(a)(iii).
(iii) Exemption From U.S. Withholding Taxes.
-------------------------------------
There shall be submitted to the Company and the Administrative
Agent, (A) on or before the first date that interest or fees are payable to
a Bank (including any Person that becomes a Bank or a participant pursuant
to Section 10.10) under the Loan Documents, (or at any other time upon the
reasonable written request of the Company or the Administrative Agent) (1)
if at the time the same are applicable, by each Bank that is not a United
States Person, (aa) two duly completed and signed copies of Internal
Revenue Service Form 1001 or 4224, entitling such Bank to a complete
exemption from withholding of any United States federal income taxes on all
amounts to be received by such Bank under the Loan Documents, and (bb) two
duly completed and signed copies of Internal Revenue Service Form W-8
establishing a full exemption from U.S. backup withholding in respect of
amounts to be received by such Bank under the Loan Documents, or (2) if at
the time any of the foregoing are inapplicable, duly completed and signed
copies of such form, if any, as entitles such Bank to exemption from
withholding of United States federal income taxes to the maximum extent to
which such Bank is then entitled under Applicable Law, and (B) from time to
time thereafter, prior to the expiration or obsolescence of any previously
delivered form or upon any previously delivered form becoming inaccurate or
inapplicable, such further duly completed and signed copies of such form,
if any, as entitles such Bank to exemption from withholding of United
States federal income taxes to the maximum extent to which such Bank is
then entitled under Applicable Law. Each Bank (including any Person that
becomes a Bank or a participant pursuant to Section 10.10) shall promptly
notify the Company and the Administrative Agent if (A) it is required to
withdraw or cancel any form or certificate previously submitted by it or
any such form or certificate has otherwise become ineffective or inaccurate
or (B) payments to it are or will be subject to withholding of United
States federal income taxes (or any other Taxes (other than Bank Taxes)) to
a greater extent than the extent to which payments to it were previously
subject. On or before the first date that interest or fees are payable to
a Bank (including any Person that becomes a Bank or a participant pursuant
to Section 10/10), or upon the request of the Company or the Administrative
Agent, each Bank that is a United States Person shall from time to time
submit to the Company and the Administrative Agent a certificate to the
effect that it is such a United States Person and a duly completed Internal
Revenue Service Form W-9. A Borrower shall be entitled to rely upon the
accuracy of any such forms, documents, certificates or other information
furnished to it by any Bank pursuant to this Section 1.13(a)(iii) and shall
have no obligation to make any additional payments or indemnify the
Administrative Agent or any Bank for any Taxes under Section 1.13(a)(i)
that would not have become payable by such Person had such documentation
been accurate.
(b) Credits and Deductions.
----------------------
If the Administrative Agent or any Bank (i) is, in its sole,
reasonable, good-faith opinion, able to apply for any credit, refund, deduction
or other reduction in Taxes in respect of any payment made by a Borrower under
Section 1.13(a)(i), the Administrative Agent or such Bank, as the case may be,
shall use reasonable efforts to obtain such credit, refund, deduction or other
reduction or, (ii) realizes a Tax benefit (whether by way
-9-
of credit, deduction or otherwise) in respect of or receives a refund of, or in
respect of, any Taxes for which a Borrower has made any payments to or on behalf
of such Administrative Agent or Bank pursuant to Section 1.13(a)(i), then, upon
receipt or realization thereof, the Administrative Agent or such Bank will pay
to such Borrower, as promptly as practicable after the receipt or realization
thereof, such amount, not exceeding the increased amount paid by such Borrower,
as is equal to the net after-tax value to the Administrative Agent or such Bank,
in its sole, reasonable and good-faith opinion, of such part of such credit,
deduction or other reduction as it reasonably considers to be allocable to such
payment by such Borrower, having regard to all of the Administrative Agent's or
such Bank's dealings giving rise to similar credits, refunds, deductions or
other reductions in relation to the same tax period and to the cost of obtaining
the same; provided, however, that (i) the Administrative Agent or such Bank, as
-------- -------
the case may be, shall not be obligated to disclose to the Borrowers any
information regarding its tax affairs or computations and (ii) nothing in this
Section 1.13(b) shall interfere with the right of the Administrative Agent or
such Bank to arrange its tax affairs as it deems appropriate.
Section 1.14 Pro Rata Treatment.
------------------
Except to the extent otherwise provided herein, (a) Loans of each Type to
be made on any day shall be made by the Banks pro rata in accordance with their
respective Commitments, (b) Loans of the Banks shall be converted and continued
pro rata in accordance with their respective amounts of Loans of the Type and,
in the case of Eurocurrency Rate Loans, having the Interest Period being so
converted or continued, (c) each reduction in the Commitments shall be made pro
rata in accordance with the respective amounts thereof and (d) each payment of
the principal of or interest on the Loans or of fees shall be made for the
account of the Banks pro rata in accordance with the respective amounts thereof
then due and payable.
ARTICLE 2
CONDITIONS TO LOANS
-------------------
Section 2.01 Conditions to Effectiveness of Amendment and Restatement.
--------------------------------------------------------
The effectiveness of the amendment and restatement of this Agreement as of
the Restated Agreement Date is subject to the determination of each Bank in its
sole and absolute discretion, that each of the following conditions has been
fulfilled:
(a) the Administrative Agent shall have received each of the
following, in form and substance and, in the case of the materials referred to
in clauses (i), (ii), (iii), (vii), (viii) and (xiv), certified in a manner
satisfactory to the Managing Agents:
(i) a certificate of the Secretary or an Assistant Secretary of
each Loan Party, dated the Restated Agreement Date, substantially in the
form of Schedule 2.01(a)(i), to which shall be attached copies of the
-------------------
resolutions and by-laws (or equivalent corporate governing document)
referred to in such certificate;
(ii) a copy of the certificate of incorporation (or other
constitutive document) of each Loan Party, certified, as of a recent date,
by the Secretary of State or other appropriate official of such Loan
Party's jurisdiction of organization;
-10-
(iii) a good standing certificate (or other analogous document)
with respect to each Loan Party, issued as of a recent date by the
Secretary of State or other appropriate official of such Person's
jurisdiction of organization;
(iv) an opinion of counsel for the Loan Parties, dated the
Restated Agreement Date, substantially in the form of Schedule 2.01(a)(iv);
--------------------
(v) an opinion of English counsel for Xpedite UK, dated the
Restated Agreement Date, substantially in the form of Schedule 2.01(a)(v);
-------------------
(vi) an opinion of Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, special
counsel for the Administrative Agent, dated the Restated Agreement Date,
substantially in the form of Schedule 2.01(a)(vi);
--------------------
(vii) a copy of each Governmental Approval and other consent or
approval, and each Governmental Registration, listed on Schedule 3.03;
-------------
(viii) a certificate of the chief financial officer of
Premiere, dated the Restated Agreement Date, with respect to the conditions
set forth in Sections 2.02(b) and (c) and setting forth the calculation of
the Premiere Leverage Ratio and the Xpedite Leverage Ratio in effect on the
Restated Agreement Date (and giving effect to the making of any Loans and
the application of the proceeds thereof on such day);
(ix) duly executed copies of the Security Agreements to which
Premiere, Voice-Tel and American Teleconferencing are party;
(x) either (A) such duly executed UCC-1 financing statements and
other documents as the Administrative Agent may request, the filing or
recordation of which is necessary or appropriate in the Administrative
Agent's reasonable determination to create or perfect a security interest
in the Collateral under Applicable Law, or (B) evidence of the filing or
recordation of the same in such offices as the Administrative Agent shall
have reasonably specified;
(xi) such instruments and other documents as the Administrative
Agent may reasonably request, the execution, delivery, filing or possession
of which is necessary or appropriate in the Administrative Agent's
determination to create or perfect a security interest in the Collateral
under Applicable Law, including but not limited to share certificates and
stock powers executed in blank with respect to the Capital Securities
subject to the Security Interest;
(xii) such instruments of termination, release and discharge and
other documents, including UCC-3 financing statements, as the
Administrative Agent may request, the delivery of which is necessary or
appropriate in the Administrative Agent's determination to effect the
termination of all Liens other than Permitted Liens;
(xiii) to the extent not previously delivered to the Banks
pursuant to this Agreement certificates of insurance and loss payee
endorsements with respect to all
-11-
insurance policies required under the Security Agreements and the UK
Security Agreements.
(b) all fees payable on or prior to the Restated Agreement Date
pursuant to Section 1.08, and all amounts payable pursuant to Section 10.02 for
which invoices (in reasonable detail) have been delivered to the Company on or
prior to such date, shall have been paid in full or arrangements satisfactory to
the Managing Agents shall have been made to cause them to be paid in full
concurrently with the disbursement of the proceeds of the Loans to be made on
such date.
Section 2.02 Conditions to Each Loan.
-----------------------
The obligation of each Bank to make each Loan requested to be made by it is
subject to the fulfillment of each of the following conditions:
(a) the Administrative Agent shall have received a notice of borrowing
with respect to such Loan complying with the requirements of Section 1.02;
(b) each Loan Document Representation and Warranty shall be true and
correct at and as of the time such Loan is to be made, both with and without
giving effect to such Loan and all other Loans to be made or issued at such time
and to the application of the proceeds thereof; and
(c) no Default shall have occurred and be continuing at the time such
Loan is to be made or would result from the making of such Loan and all other
Loans to be made at such time or from the application of the proceeds thereof.
Except to the extent that the applicable Borrower shall have disclosed in
the notice of borrowing or in a subsequent notice given to the Banks prior to
5:00 p.m. (New York City time) on the Business Day before the requested date for
the making of the requested Loans, that a condition specified in clause (b) or
(c) above will not be fulfilled as of the requested time for the making of such
Loans, such Borrower shall be deemed to have made a Representation and Warranty
as of the time of the making of such Loans that the conditions specified in such
clauses have been fulfilled as of such time.
ARTICLE 3
CERTAIN REPRESENTATIONS AND WARRANTIES
--------------------------------------
In order to induce the Administrative Agent and each Bank to enter into
this Agreement and to make each Loan requested to be made by it, Premiere
represents and warrants as follows:
Section 3.01 Organization; Power; Qualification.
----------------------------------
Premiere and each Subsidiary are Persons duly organized, validly existing
and, where applicable, in good standing under the laws of their respective
jurisdictions of organization, have the corporate or legal power and authority
to own their respective properties and to carry on their respective businesses
as now being and hereafter proposed to be conducted and, where applicable, are
duly qualified and in good standing as foreign corporations, and are authorized
to do business, in all jurisdictions in which the character of their respective
properties or the nature of their respective businesses requires
-12-
such qualification or authorization, except for qualifications and
authorizations the lack of which, singly or in the aggregate, has not had and
will not have a Materially Adverse Effect on (x) Premiere and its Consolidated
Subsidiaries taken as a whole, (y) any Loan Document or (z) the Collateral.
Section 3.02 Subsidiaries.
------------
Schedule 3.02 sets forth, as of the Restated Agreement Date, all of the
-------------
Subsidiaries, their jurisdictions of organization and the percentages of the
various classes of their Capital Securities owned by Premiere or another
Subsidiary and indicates which Subsidiaries are Consolidated Subsidiaries of
Premiere, which Subsidiaries are Consolidated Subsidiaries of the Company and
which Subsidiaries are Significant Subsidiaries. Except as otherwise set forth
on Schedule 3.02, Premiere or another Subsidiary, as the case may be, has the
-------------
unrestricted right to vote, and (subject to limitations imposed by Applicable
Law) to receive dividends and distributions on, all Capital Securities of the
Subsidiaries indicated on Schedule 3.02 as owned by Premiere or such Subsidiary.
-------------
All such Capital Securities have been duly authorized and issued and are fully
paid and nonassessable.
Section 3.03 Authorization; Enforceability; Required Consents; Absence of
------------------------------------------------------------
Conflicts.
---------
Each of the Loan Parties has the power, and has taken all necessary
action (including, if a corporation, any necessary stockholder action) to
authorize it, to execute, deliver and perform in accordance with their
respective terms the Loan Documents and, in the case of the Company, to borrow
hereunder in the amount of the unused Commitments and, in the case of Xpedite
UK, to borrow hereunder in the amount of the Sterling Sub-limit. This Agreement
has been, and each of the other Loan Documents when delivered to the
Administrative Agent will have been, duly executed and delivered by each of the
Loan Parties and is, or when so delivered will be, a legal, valid and binding
obligation of each such Person, enforceable against such Person in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity.
The execution, delivery and performance in accordance with their respective
terms by each Loan Party of the Loan Documents, and each borrowing hereunder,
whether or not in the amount of the unused Commitments, do not and (absent any
change in any Applicable Law or applicable Contract) will not (a) require any
Governmental Approval or any other consent or approval, including any consent or
approval of the stockholders of any such Person, to have been obtained or any
Governmental Registration to have been made, by any such Person, other than
Governmental Approvals and other consents and approvals and Governmental
Registrations that have been obtained or made, as the case may be, are final and
not subject to review on appeal or to collateral attack, are in full force and
effect and, in the case of any such required under any Applicable Law or
Contract as in effect on the Restated Agreement Date, are listed on Schedule
--------
3.03, or (b) violate, conflict with, result in a breach of, constitute a default
----
under, or result in or require the creation of any Lien upon any assets of any
such Person or any Subsidiary under, (i) any Contract to which any such Person
or any Subsidiary is a party or by which any such Person or any Subsidiary or
any of their respective properties may be bound or (ii) any Applicable Law
binding on such Person.
Section 3.04 Taxes.
-----
Premiere and each Subsidiary have (a) filed all material Tax returns
required to have been filed by it under Applicable Law, (b) paid all Taxes
indicated on such returns as due and payable by it or have been assessed against
it except for (i) Taxes the
-13-
failure to have paid which does not contravene Section 4.01; or (ii) Taxes which
are being contested in good faith by appropriate proceedings and for which
adequate reserves have been established in accordance with Generally Accepted
Accounting Principles, and (c) to the extent required by Generally Accepted
Accounting Principles, reserved against all Taxes that are payable by it but are
not yet due or that are due and payable by it or have been assessed against it
but have not yet been paid.
Section 3.05 Litigation.
----------
Except for the Disclosed Matters, there are not, in any court or before any
arbitrator of any kind or before or by any governmental or non-governmental
body, any actions, suits or proceedings pending or (to the knowledge of
Premiere) threatened against (a) Premiere or any Subsidiary or any of their
respective businesses or properties or (b) any Loan Document, except actions,
suits or proceedings that, if adversely determined, would not, singly or in the
aggregate, reasonably be expected to have a Materially Adverse Effect on (x)
Premiere and the Consolidated Subsidiaries taken as a whole, (y) any Loan
Document or (z) the Collateral.
Section 3.06 No Adverse Change or Event.
--------------------------
Except for the Disclosed Matters, since December 31, 1997 no change in the
business, assets, Liabilities, financial condition, results of operations or
business prospects of Premiere or any Subsidiary has occurred, and no event has
occurred or failed to occur, that has had or could reasonably be expected to
have, either alone or in conjunction with all other such changes, events and
failures, a Materially Adverse Effect on (a) Premiere and the Consolidated
Subsidiaries taken as a whole, (b) any Loan Document or (c) the Collateral.
Such an adverse change may have occurred, and such an event may have occurred or
failed to occur, at any particular time notwithstanding the fact that at such
time no Default shall have occurred and be continuing.
Section 3.07 Additional Adverse Facts.
------------------------
Except for the Disclosed Matters, no fact or circumstance is known to
Premiere, as of the Restated Agreement Date, that, either alone or in
conjunction with all other such facts and circumstances, has had or could
reasonably be expected to have (so far as Premiere and the Subsidiaries can
foresee) a Materially Adverse Effect on (a) Premiere and the Consolidated
Subsidiaries taken as a whole, (b) any Loan Document or (c) the Collateral. If
a fact or circumstance disclosed on such Schedules or in such notes should in
the future have a Materially Adverse Effect on (x) Premiere and the Consolidated
Subsidiaries taken as a whole, (y) any Loan Document or (z) the Collateral, such
Materially Adverse Effect shall be a change or event subject to Section 3.06
notwithstanding such disclosure.
Section 3.08 Investment Company Act.
----------------------
Neither Premiere nor any Subsidiary is an "investment company" or a Person
"controlled" by an "investment company", within the meaning of the Investment
Company Act of 1940.
Section 3.09 Compliance With Applicable Law and Contracts.
--------------------------------------------
Premiere and each Subsidiary is, to the best of Premiere's knowledge, in
compliance with all Applicable Law and the terms of all Contracts to which such
Person is a party or by which it or any of its properties may be bound, except
for non-compliances that, either singly or in the aggregate, would not
reasonably be expected to have a Materially Adverse Effect on (a) Premiere and
its Consolidated Subsidiaries taken as a whole, (b) any Loan Document or (c) the
Collateral.
-14-
Section 3.10 Substance Release and Disposal.
------------------------------
Except as set forth on Schedule 3.10, there have been no releases or
-------------
disposals of hazardous wastes, environmental contaminants or other substances in
quantities or locations that, singly or in the aggregate, could result in the
incurrence by Premiere or any Subsidiary of remedial obligations under
Applicable Law that would reasonably be expected to have a Materially Adverse
Effect on Premiere and the Consolidated Subsidiaries taken as a whole. Except
as set forth on Schedule 3.10, neither Premiere nor any Subsidiary has received
-------------
any notice or order advising it that it has or may have any remedial obligation
with respect to any such releases or disposals or that it is or may be
responsible for the costs of any remedial action taken or to be taken by any
other Persons with respect to any such releases or disposals that, singly or in
the aggregate, could reasonably be expected to have a Materially Adverse Effect
on Premiere and the Consolidated Subsidiaries taken as a whole.
Section 3.11 Senior Obligations.
------------------
The obligations of Premiere under the Loan Documents constitute "Senior
Indebtedness" within the meaning and pursuant to the terms of the Indenture
dated as of June 15, 1997 between Premiere and IBJ ▇▇▇▇▇▇▇▇ Bank and Trust
Company, as Trustee. The obligations of Premiere under the Loan Documents are
hereby designated to constitute "Designated Senior Indebtedness" within the
meaning and pursuant to the terms of such Indenture. Premiere hereby agrees to
give written notice to such Trustee of such designation, such notice to be given
promptly following the Restated Agreement Date and in no event later than
December 31, 1998. Premiere shall give a copy of such notice to the
Administrative Agent, together with evidence reasonably satisfactory to the
Administrative Agent of the giving of such notice to such Trustee.
ARTICLE 4
CERTAIN COVENANTS
-----------------
From the Restated Agreement Date and until the Repayment Date,
A. Premiere shall and shall cause each Subsidiary to:
-------------------------------------------------
Section 4.01 Preservation of Existence and Properties, Scope of Business,
------------------------------------------------------------
Compliance With Law, Preservation of Enforceability.
---------------------------------------------------
(a) Preserve and maintain its corporate existence (except as contemplated
by Section 4.08) and all of its other franchises, licenses, rights and
privileges, (b) preserve, protect and obtain all Intellectual Property, and
preserve and maintain in good repair, working order and condition all other
properties, required for the conduct of its business, (c) engage only in
businesses in substantially the same fields as the businesses conducted on the
Restated Agreement Date and in businesses directly related thereto, (d) comply
with Applicable Law and (e) take all action and obtain all consents and
Governmental Approvals and make all Governmental Registrations required so that
its obligations under the Loan Documents will at all times be legal, valid and
binding and enforceable in accordance with their respective terms, except that
this Section 4.01 (other than clauses (a), insofar as it requires any Loan Party
to preserve its corporate existence, (c) and (e)) shall not apply in any
circumstance where noncompliance, together with all other noncompliances with
this Section 4.01, will not have a Materially Adverse Effect on
-15-
(x) Premiere and the Consolidated Subsidiaries taken as a whole, (y) any Loan
Document or (z) the Collateral.
Section 4.02 Insurance.
---------
Maintain insurance with responsible insurance companies against at least
such risks and in at least such amounts as is customarily maintained by similar
businesses, or, if greater in scope or coverage, as may be required by
Applicable Law.
Section 4.03 Additional Significant Subsidiaries.
-----------------------------------
Not later than the tenth day after the date it forms or acquires any new
Significant Subsidiary or any Subsidiary becomes a Significant Subsidiary (as
determined on the basis of the most recent financial statements of Premiere and
the Consolidated Subsidiaries furnished to the Banks pursuant to Section 5.01),
deliver to the Administrative Agent (i) certificates representing all (or, in
the case of any such new Significant Subsidiary that is not a United States
Person and that is not a Subsidiary of Xpedite UK, such lesser amount as is the
maximum amount that can be subjected to the Security Interest without, in the
reasonable opinion of Premiere, resulting in a material adverse tax consequence
to Premiere) of the issued and outstanding shares of capital stock of such new
Significant Subsidiary held by Premiere and the Subsidiaries (other than
directors' qualifying shares), together with appropriate stock powers, duly
endorsed in blank, (ii) if the owner or owners of such shares of capital stock
have not executed and delivered a Security Agreement or UK Security Agreement
that subjects such shares of capital stock to the Security Interest, a Security
Agreement in the form of Exhibit B or a UK Security Agreement in the form of
---------
Exhibit E, as the case may be, duly executed by the owner or owners of such
---------
shares of capital stock, (iii) a Security Agreement in the form of Exhibit B if
---------
such new Significant Subsidiary is a United States Person, or a UK Security
Agreement in the form of Exhibit E if such new Significant Subsidiary is
---------
created, incorporated or organized under the laws of the United Kingdom or any
jurisdiction therein, or, in any other case, a security agreement substantially
similar in purpose and effect as the UK Security Agreements and in form
reasonably satisfactory to the Managing Agents, as the case may be, duly
executed by such new Significant Subsidiary, (iv) a Subsidiary Guaranty
Supplement in the form of Schedule 4.03, duly executed by such new Significant
-------------
Subsidiary and (v) such certificates, resolutions, legal opinions, copies of
filings and notices, and other materials, relating to such new Significant
Subsidiary or such owner or owners, the documents referred to above and the
actions required thereunder, as the Administrative Agent may reasonably request;
provided however, that so long as Premiere Communications and VoiceCom would be
-------- -------
required to obtain a Governmental Approval in order for it to lawfully execute
and deliver a Security Agreement, such Persons shall not be required to execute
and deliver a Security Agreement.
Section 4.04 Use of Proceeds.
---------------
Use the proceeds of the Loans for general corporate purposes of Premiere
and its Subsidiaries, including the payment of transaction fees and expenses.
None of the proceeds of any of the Loans shall be used (i) to purchase or carry,
or to reduce or retire or refinance any credit incurred to purchase or carry,
any margin stock (within the meaning of Regulations U and X of the Board of
Governors of the Federal Reserve System) or to extend credit to others for the
purpose of purchasing or carrying any such margin stock or (ii) for the purpose
of reducing or discharging, directly or indirectly, any existing liability of
Worldwide in relation to the acquisition of shares in Xpedite UK. If requested
by any Bank, the Borrowers shall complete and sign Part I of a copy of Federal
Reserve Form U-1 referred to in Regulation U and deliver such copy to such Bank.
-16-
B. Premiere shall not, and shall not permit any Subsidiary to, directly or
-----------------------------------------------------------------------
indirectly:
----------
Section 4.05 Indebtedness.
------------
Have any Indebtedness at any time, except that this Section 4.05 shall not
apply to (a) the Loans, (b) Guaranties permitted pursuant to Section 4.06(a),
(c) Existing Indebtedness, (d) Intercompany Indebtedness, (e) Indebtedness of
Premiere or any Subsidiary owed to Premiere or any Subsidiary and incurred in
the ordinary course of business pursuant to customary cash management practices
of Premiere and the Subsidiaries, (f) Purchase Money Indebtedness in an
aggregate outstanding amount not in excess of $10,000,000 at any time and (g)
other Indebtedness in an aggregate outstanding amount not in excess of
$15,000,000 at any time.
Section 4.06 Guaranties.
----------
Be obligated, at any time, in respect of any Guaranty, except that this
Section 4.06 shall not apply to (a) Existing Guaranties and (b) Permitted
Guaranties.
Section 4.07 Liens.
-----
Permit to exist, at any time, any Lien upon any of its properties or
assets of any character, whether now owned or hereafter acquired, or upon any
income or profits therefrom, except that this Section 4.07 shall not apply to
Permitted Liens; provided, however, that if, notwithstanding this Section 4.07,
-------- -------
any Lien to which this Section is applicable shall be created or arise, the
Liabilities of the Loan Parties under the Loan Documents shall, to the extent
such Lien attaches to any asset that does not constitute Collateral or to any
asset with respect to which such Lien would be prior to the Security Interest,
automatically be secured by such Lien equally and ratably with the other
Liabilities secured thereby, and the holder of such other Liabilities, by
accepting such Lien, shall be deemed to have agreed thereto and to share with
the Banks, on that basis, the proceeds of such Lien, whether or not the Banks'
security interest shall be perfected; provided further, however, that
-------- ------- -------
notwithstanding such equal and ratable securing and sharing, the existence of
such Lien shall constitute a default by the Borrower in the performance or
observance of this Section 4.07.
Section 4.08 Merger or Consolidation; Acquisitions.
-------------------------------------
Merge or consolidate with any Person, or acquire any assets or business
from or Capital Securities of any Person, except that, if after giving effect
thereto no Default would exist, this Section 4.08 shall not apply to (a) any
merger or consolidation of Premiere or any Subsidiary (other than Xpedite UK or
XSL) with Premiere or any Subsidiary (other than Xpedite UK or XSL), provided
that, in the case of a merger to which the Company is party, the Company shall
be the continuing Person and, in the case of any merger to which any Guarantor
that is a United States Person and any Subsidiary that is not a Guarantor or is
not a United States Person are party, the Guarantor that is a United States
Person shall be the continuing Person, (b) any acquisition of assets in the
ordinary course of business, (c) any other acquisition, so long as the aggregate
consideration paid or otherwise provided by Premiere and its Subsidiaries for
all such other acquisitions since the Restated Agreement Date (excluding any
such consideration paid in the form of common stock of Premiere) does not exceed
$10,000,000 plus the lesser of (i) $5,000,000 and (ii) the amount by which
$35,000,000 exceeds the aggregate consideration actually expended for the
acquisitions referred to in clause (d) below, (d) the acquisition of the Capital
Securities of Xpedite Systems S.A. or Xpedite International Hong Kong Limited
not owned by Premiere or any of its Subsidiaries on the Restated Agreement Date,
so long as the aggregate consideration therefor is
-17-
not in excess of $35,000,000 and (e) acquisitions constituting Investments
permitted pursuant to Section 4.13.
Section 4.09 Disposition of Assets.
---------------------
Sell, lease, license, transfer or otherwise dispose of any asset or any
interest therein, except that this Section 4.09 shall not apply to (a) any
disposition of any asset or any interest therein in the ordinary course of
business, (b) any disposition of any obsolete or retired property not used or
useful in its business, (c) any disposition of any asset or any interest therein
to Premiere or a Guarantor that is a United States Person, (d) other
dispositions subsequent to the Restated Agreement Date for cash in an aggregate
amount with respect to (i) all such dispositions of investment securities listed
on Schedule 4.13 not in excess of $30,000,000 or (ii) all other such
-------------
dispositions not in excess of $10,000,000 and (e) any transaction to which any
of the other provisions of this Agreement (other than Section 4.16) is by its
express terms inapplicable.
Section 4.10 Restricted Payments.
-------------------
Make or declare or otherwise become obligated to make any Restricted
Payment, except that this Section 4.10 shall not apply to any Restricted Payment
(a) made by any Subsidiary in the ordinary course of business pursuant to
customary cash management practices of Premiere and the Subsidiaries, (b)
consisting of purchases of common stock of Premiere in an aggregate amount not
in excess of $1,000,000 for use in connection with Premiere's employee benefit
programs or (c) made by any Subsidiary to Premiere or any Guarantor that is a
United States Person, so long as, in the case of any such Restricted Payment
made by the Company or any of its Subsidiaries pursuant to this clause (c), no
Default shall have occurred and be continuing either before or after giving
effect to such Restricted Payment.
Section 4.11 Limitation on Restrictive Covenants.
-----------------------------------
Permit to exist, at any time, any consensual restriction limiting the
ability (whether by covenant, event of default, subordination or otherwise) of
any Subsidiary to (a) pay dividends or make any other distributions on shares of
its capital stock held by Premiere or any other Subsidiary, (b) pay any
obligation owed to Premiere or any other Subsidiary, (c) make any loans or
advances to or investments in Premiere or in any other Subsidiary, (d) transfer
any of its property or assets to Premiere or any other Subsidiary or (e) create
any Lien upon its property or assets whether now owned or hereafter acquired or
upon any income or profits therefrom unless such restriction permits the
creation of such a Lien to secure the obligations of the Loan Parties with
respect to the Loans and all other amounts payable under the Loan Documents,
except that this Section 4.11 shall not apply to Permitted Restrictive
Covenants.
Section 4.12 Issuance or Disposition of Capital Securities.
---------------------------------------------
Issue any of its Capital Securities or sell, transfer or otherwise dispose
of any Capital Securities of any Significant Subsidiary, except that this
Section 4.12 shall not apply to (a) any issuance of Capital Securities of a
Significant Subsidiary (i) that are subjected to the Security Interest in a
manner reasonably satisfactory to the Managing Agents or (ii) for the purpose of
effecting a disposition contemplated or permitted by Section 4.09(d), (b) any
issuance by Premiere of its capital stock to any present or former employee of
Premiere or other Persons pursuant to any stock plan of Premiere in effect on
the Restated Agreement Date or (c) any issuance, sale, transfer or other
disposition of such Capital Securities as consideration for an acquisition
permitted by Section 4.08(c).
-18-
Section 4.13 Investments.
-----------
Make or acquire any Investment or have any Investment outstanding, except
that this Section 4.13 shall not apply to (a) Money Market Investments, (b)
Investments constituting acquisitions permitted under Section 4.08, (c)
Investments by Premiere or any Subsidiary in Premiere or any Guarantor that is a
United States Person, (d) Investments existing on the Restated Agreement Date
and set forth on Schedule 4.13, (e) Investments by Premiere or any Subsidiary in
-------------
Premiere or any Subsidiary made in the ordinary course of business of Premiere
or any Subsidiary pursuant to customary cash management practices of Premiere
and the Subsidiaries, (f)(i) loans to ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ to fund tax liabilities
incurred by ▇▇. ▇▇▇▇▇ arising from his exercise of employee stock options in an
aggregate amount with respect to all such loans not in excess of $15,000,000 at
any time and (ii) other Investments in an aggregate amount with respect to all
such Investments not in excess of $15,000,000 at any time, in each case with
respect to clause (f)(i) and (f)(ii) for so long as (x) no Default shall have
occurred and be continuing or would result therefrom and (y) after giving effect
thereto, Premiere and the Company and/or any of their respective Subsidiaries
would collectively be entitled to incur not less than $10,000,000 of additional
Indebtedness and remain in compliance with Sections 4.19 and 4.22, respectively.
Section 4.14 Taxes of Other Persons.
----------------------
(a) File a consolidated, combined, unitary or similar group tax return
with any other Person other than, in the case of Premiere, a Consolidated
Subsidiary and, in the case of any such Subsidiary, Premiere or a Consolidated
Subsidiary, or (b) enter into any tax sharing agreement or similar Contract to
pay, or make payments with respect to, any Taxes owing by any Person other than
Premiere or a Consolidated Subsidiary.
Section 4.15 Benefit Plans.
-------------
Have, or permit any of its ERISA Affiliates to have, any Benefit Plan other
than an Existing Benefit Plan.
Section 4.16 Transactions With Affiliates.
----------------------------
Effect any transaction (or series of related transactions) with any
Affiliate (other than Premiere and any Guarantor that is a United States Person)
that is on a basis less favorable than would at the time be obtainable with an
unrelated third party in a commercially reasonable transaction, except that this
Section 4.16 shall not apply to (a) the provision of customary overhead and
corporate managerial services by Premiere or a Subsidiary to Premiere or to any
of the Subsidiaries and (b) transactions in the ordinary course of business of
Premiere or any Subsidiary pursuant to customary cash management practices of
Premiere and the Subsidiaries.
Section 4.17 Substance Storage and Disposal.
------------------------------
Permit any hazardous wastes, environmental contaminants or other substances
the improper release or disposal of which could result in the incurrence by
Premiere or any Subsidiary of remedial obligations under Applicable Law, to be
brought onto or stored on the properties owned or leased by it if such remedial
obligations could reasonably be expected to have a Materially Adverse Effect on
Premiere and the Consolidated Subsidiaries taken as a whole.
Section 4.18 Capital Expenditures.
--------------------
Make or be obligated at any time to make Capital Expenditures in an amount,
together with the aggregate amount of all other Capital Expenditures made or
obligated to be made since January 1, 1999, in excess of $70,000,000.
-19-
C. Premiere shall not:
------------------
Section 4.19 Premiere Leverage Ratio.
-----------------------
Permit the Premiere Leverage Ratio to be greater than 4.10 to 1 at any time
prior to June 30, 1999, or 3.25 to 1 at any time on or after June 30, 1999.
Section 4.20 Premiere Interest Coverage Ratio.
--------------------------------
Permit the Premiere Interest Coverage Ratio to be less than 3.00 to 1 at
any time.
Section 4.21 Minimum Consolidated Revenues.
-----------------------------
Permit Consolidated Revenues to be less than (i) $105,000,000 with respect
to the fiscal quarter of Premiere ending December 31, 1998, (ii) $111,000,000
with respect to the fiscal quarter of Premiere ending ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇▇▇)
$117,000,000 with respect to the fiscal quarter of Premiere ending June 30,
1999, and (iv) $125,000,000 with respect to the fiscal quarter of Premiere
ending September 30, 1999.
D. The Company shall not:
---------------------
Section 4.22 Xpedite Leverage Ratio.
----------------------
Permit the Xpedite Leverage Ratio to be greater than 3.00 to 1 at any time
prior to June 30, 1999, or 2.75 to 1 at any time on or after June 30, 1999.
Section 4.23 Xpedite Interest Coverage Ratio.
-------------------------------
Permit the Xpedite Interest Coverage Ratio to be less than 3.00 to 1 at any
time.
ARTICLE 5
INFORMATION
-----------
Section 5.01 Information to Be Furnished.
---------------------------
From the Restated Agreement Date and until the Repayment Date, Premiere and
the Company shall furnish to each Bank:
(a) Quarterly Financial Statements.
------------------------------
As soon as available and in any event within 55 days after the close
of each of the first three quarterly accounting periods in each fiscal year of
Premiere or the Company, as the case may be, commencing with the quarterly
period ending March 31, 1999:
(i) a consolidated balance sheet of Premiere and the
Consolidated Subsidiaries as at the end of such quarterly period and the
related consolidated statements of income, retained earnings and cash flows
of Premiere and the Consolidated Subsidiaries for such quarterly period and
for the elapsed portion of the fiscal year ended with the last day of such
quarterly period, setting forth in each case in comparative form the
figures for the corresponding periods of the previous fiscal year; and
(ii) a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at the end of such quarterly period and the
related consolidated statements of income, retained earnings and cash flows
of the Company and its Consolidated Subsidiaries for such quarterly period
and for the elapsed portion of the fiscal year ended
-20-
with the last day of such quarterly period, setting forth in each case in
comparative form the figures for the corresponding periods of the previous
fiscal year.
(b) Year-End Financial Statements; Accountants' Certificate.
-------------------------------------------------------
As soon as available and in any event within 105 days after the end of
each fiscal year of Premiere or the Company, as the case may be, commencing with
the fiscal year ending December 31, 1998:
(i) a consolidated balance sheet of Premiere and the Consolidated
Subsidiaries as at the end of such fiscal year and the related consolidated
statements of income, retained earnings and cash flows of Premiere and the
Consolidated Subsidiaries for such fiscal year, setting forth in
comparative form the figures as at the end of and for the previous fiscal
year;
(ii) a consolidated balance sheet of the Company and its
Consolidated Subsidiaries as at the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows of the
Company and its Consolidated Subsidiaries for such fiscal year, setting
forth in comparative form the figures as at the end of and for the previous
fiscal year; and
(iii) audit reports of Ernst & Young, or other independent
certified public accountants of recognized standing reasonably satisfactory
to the Required Banks, with respect to the financial statements delivered
pursuant to clauses (i) and (ii) above.
(c) Monthly Financial Statements.
----------------------------
As soon as available and in any event within 45 days after the end of
each month, financial statements and other financial information with respect to
Premiere and the Consolidated Subsidiaries satisfactory in form and content to
the Managing Agents. The Managing Agents acknowledge that Premiere's current
monthly statements are satisfactory in form.
(d) Officer's Certificate as to Financial Statements and Defaults.
-------------------------------------------------------------
At the time that financial statements are furnished pursuant to
Section 5.01(a) or (b), a certificate of the president or chief financial
officer of Premiere or the Company, as the case may be, stating that to the best
of his or her knowledge after due inquiry, no Default or Event of Default exists
or, if one exists, the actions being taken to remedy it. At the time that
financial statements are furnished pursuant to Section 5.01(a) and (b), a
certificate of the president or chief financial officer of Premiere calculating
the Premiere Leverage Ratio and the Xpedite Leverage Ratio.
(e) Reports and Filings.
-------------------
(i) As soon as practicable upon receipt thereof, copies of all
material reports, if any, submitted to Premiere or any Subsidiary, or the Board
of Directors of Premiere or any Subsidiary, by its independent certified public
accountants, including any management letter; (ii) as soon as practicable,
copies of all such financial statements and reports as Premiere or any
Subsidiary shall send to its public stockholders, if any, and of all
registration statements and all regular or periodic reports that Premiere or any
Subsidiary shall file with the Securities and Exchange Commission or any
successor commission.
(f) Requested Information.
---------------------
From time to time and promptly upon request of any Bank, such
Information regarding the Loan Documents, the Loans or the business, assets,
-21-
Liabilities, financial condition, results of operations or business prospects of
Premiere and the Subsidiaries as such Bank through the Administrative Agent may
reasonably request.
(g) Notice of Defaults, Material Adverse Changes and Other Matters.
--------------------------------------------------------------
Prompt notice, after a senior officer of any Loan Party shall have
become aware thereof, of:
(i) any Default,
(ii) the acquisition or formation of a new Subsidiary and, in the
case of each such new Subsidiary, its name, jurisdiction of incorporation,
the percentages of the various classes of its Capital Securities owned by
Premiere or another Subsidiary and whether or not such new Subsidiary is a
Consolidated Subsidiary or a Significant Subsidiary,
(iii) any change in the name of any Subsidiary, its jurisdiction
of incorporation, the percentages of the various classes of its Capital
Securities owned by Premiere or another Subsidiary or its status as a
Consolidated or non-Consolidated Subsidiary,
(iv) the threatening or commencement of, or the occurrence or
nonoccurrence of any change or event relating to, any action, suit or
proceeding that would cause the Representation and Warranty contained in
Section 3.05 to be incorrect if made at such time,
(v) the occurrence or nonoccurrence of any change or event that
would cause the Representation and Warranty contained in Section 3.06 or
Section 3.10 to be incorrect if made at such time,
(vi) any event or condition referred to in clauses (i) through
(vi) of Section 6.01(g), whether or not such event or condition shall
constitute an Event of Default, and
(vii) any amendment of the certificate of incorporation or by-
laws of Premiere or any Subsidiary that is a Loan Party.
Section 5.02 Accuracy of Financial Statements and Information.
-------------------------------------------------
(a) Financial Statements.
--------------------
(i) Premiere hereby represents and warrants that (A) Schedule 5.02(a)
----------------
sets forth a complete and correct list of the financial statements
submitted by Premiere to the Banks in order to induce them to execute and
deliver this Agreement, (B) such financial statements are complete and
correct and fairly present in all material respects, in accordance with
Generally Accepted Accounting Principles, the consolidated financial
position of Premiere and the Consolidated Subsidiaries as at their
respective dates and the consolidated results of operations, retained
earnings and, as applicable, changes in financial position or cash flows of
Premiere and such Subsidiaries for the respective periods to which such
statements relate (except that the interim financial statements included
therein may omit footnotes and are subject to year-end adjustments), (C)
except for the Disclosed Matters, neither Premiere nor any Subsidiary had
any Liability, contingent or otherwise, or any unrealized or anticipated
loss, that,
-22-
singly or in the aggregate, has had or could reasonably be expected to have
a Materially Adverse Effect on Premiere and the Consolidated Subsidiaries
taken as a whole, and (D) the financial statements furnished pursuant to
Section 5.01(a)(i) or (b)(i) will fairly present in all material respects,
in accordance with Generally Accepted Accounting Principles except for
changes therein or departures therefrom that are described in the
certificate or report accompanying such statements and that have been
approved in writing by Premiere's then current independent certified public
accountants), the consolidated financial position of Premiere and the
Consolidated Subsidiaries as at their respective dates and the consolidated
results of operations, retained earnings and (in the case of audited
financial statements included therein) cash flows of Premiere and such
Subsidiaries for the respective periods to which such statements relate
(except that the interim financial statements included therein may omit
footnotes and are subject to year-end adjustments) and the furnishing of
the same to the Banks shall constitute a representation and warranty by
Premiere made on the date the same are furnished to the Banks to that
effect and to the further effect that, except as disclosed or reflected in
such financial statements, as at the respective dates thereof, neither
Premiere nor any Subsidiary had any Liability, contingent or otherwise, or
any unrealized or anticipated loss, that, singly or in the aggregate, has
had or could reasonably be expected to have a Materially Adverse Effect on
Premiere and the Consolidated Subsidiaries taken as a whole.
(ii) The Company hereby represents and warrants that (A) Schedule
--------
5.02(a) sets forth a complete and correct list of the financial statements
-------
submitted by the Company to the Banks in order to induce them to execute
and deliver this Agreement, (B) such financial statements are complete and
correct and fairly present in all material respects, in accordance with
Generally Accepted Accounting Principles, the consolidated financial
position of the Company and its Consolidated Subsidiaries as at their
respective dates and the consolidated results of operations, retained
earnings and, as applicable, changes in financial position or cash flows of
the Company and such Subsidiaries for the respective periods to which such
statements relate (except that the interim financial statements included
therein may omit footnotes and are subject to year-end adjustments), (C)
except as disclosed or reflected in such financial statements, as at
September 30, 1998, neither the Company nor any Subsidiary of the Company
had any Liability, contingent or otherwise, or any unrealized or
anticipated loss, that, singly or in the aggregate, has had or could
reasonably be expected to have a Materially Adverse Effect on the Company
and its Consolidated Subsidiaries taken as a whole, and (D) the financial
statements furnished pursuant to Section 5.01(a)(i) or (b)(i) will fairly
present in all material respects, in accordance with Generally Accepted
Accounting Principles except for changes therein or departures therefrom
that are described in the certificate or report accompanying such
statements and that have been approved in writing by Premiere's then
current independent certified public accountants), the consolidated
financial position of the Company and its Consolidated Subsidiaries as at
their respective dates and the consolidated results of operations, retained
earnings and (in the case of audited financial statements included therein)
cash flows of the Company and such Subsidiaries for the respective periods
to which such statements relate (except that the interim financial
statements included therein may omit footnotes and are subject to year-end
adjustments) and the furnishing of the same to the Banks shall constitute a
representation and warranty
-23-
by the Company made on the date the same are furnished to the Banks to that
effect and to the further effect that, except for the Disclosed Matters,
neither the Company nor any Subsidiary had any Liability, contingent or
otherwise, or any unrealized or anticipated loss, that, singly or in the
aggregate, has had or could reasonably be expected to have a Materially
Adverse Effect on the Company and its Consolidated Subsidiaries taken as a
whole.
(b) Other Information.
-----------------
Premiere or the Company, as the case may be, hereby represents and
warrants that the Information furnished to the Administrative Agent or the Banks
by or on behalf of Premiere or the Company, as the case may be, on or prior to
the Restated Agreement Date (other than the financial statements referred to in
Section 5.02(a)), and the Information furnished to the Administrative Agent or
the Banks by or on behalf of Premiere or the Company, as the case may be, after
the Restated Agreement Date (other than the financial statements referred to in
Section 5.02(a)), in the case of any Information prepared in the ordinary course
of business, was or shall be, as the case may be, complete and correct in all
material respects in the light of the purpose prepared, and, in the case of any
Information the preparation of which was requested by any Bank, was or shall be,
as the case may be, complete and correct in all material respects to the extent
necessary to give such Bank true and accurate knowledge of the subject matter
thereof and, in each case, did not or will not, as the case may be, contain any
untrue statement of a material fact.
Section 5.03 Additional Covenants Relating to Disclosure.
-------------------------------------------
From the Restated Agreement Date and until the Repayment Date, Premiere
shall and shall cause each Subsidiary to:
(a) Accounting Methods and Financial Records.
----------------------------------------
Maintain a system of accounting, and keep such books, records and
accounts, as may be required or necessary to permit (i) the preparation of
financial statements required to be delivered pursuant to Section 5.01(a) and
(b) and (ii) the determination of the compliance of Premiere and the
Subsidiaries with the terms of the Loan Documents.
(b) Fiscal Year.
-----------
Maintain the same opening and closing date for each fiscal year as for
the fiscal year reflected in the Base Financial Statements.
(c) Visits, Inspections and Discussions.
-----------------------------------
Subject to Section 10.06, permit representatives of any Bank, from
time to time during normal business hours, as often as may be reasonably
requested, upon reasonable prior notice, to (i) visit any of its premises or
property, (ii) inspect, and verify the amount, character and condition of, any
of its property, (iii) review and make copies from its books and records,
including management letters prepared by its independent certified public
accountants, and (iv) discuss with its senior financial officers its business,
assets, Liabilities, financial condition, results of operation and business
prospects.
Section 5.04 Authorization of Third Parties to Deliver Information.
-----------------------------------------------------
Premiere and the Company hereby authorize and direct each Person whose
preparation or delivery to the Administrative Agent or the Banks of any opinion,
report or other Information is a condition or covenant under the Loan Documents
(including under Article 2 or this Article 5) to so prepare or deliver such
Information for the benefit of the Administrative Agent and the Banks. Premiere
-24-
and the Company agree to promptly execute and deliver from time to time such
further authorizations to effect the purposes of this Section 5.04 as the
Administrative Agent or any Bank may reasonably request.
ARTICLE 6
DEFAULT
-------
Section 6.01 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
within or without the control of Premiere, any Subsidiary or any other Loan
Party, 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 or
nongovernmental body:
(a) Any payment of principal of or interest on any of the Loans or the
Notes, or any payment of any fees shall not be made (i) in the case of principal
of Loans when and as due (whether at maturity, by reason of notice of prepayment
or acceleration or otherwise) and in any case in accordance with the terms of
this Agreement and the Notes and (ii) in all other cases, within 5 days of the
date on which such payment is due;
(b) Any Loan Document Representation and Warranty shall at any time
prove to have been incorrect or misleading in any material respect when made;
(c) (i) Premiere or the Company, as the case may be, shall default in
the performance or observance of:
(A) any term, covenant, condition or agreement contained in
Section 4.01(a) (insofar as such Section requires the preservation of the
corporate existence of each of the Loan Parties), 4.01(e), 4.04 through
4.23, 5.01(g)(i) or 11.07; or
(B) any term, covenant, condition or agreement contained in this
Agreement (other than a term, covenant, condition or agreement a default in
the performance or observance of which is elsewhere in this Section
specifically dealt with) and, if capable of being remedied, such default
shall continue unremedied for a period of 30 days after notice of such
default from the Administrative Agent; or
(ii) Any Loan Party shall default in the performance or
observance of:
(A) any term, covenant, condition or agreement contained in
Section 8.01 hereof or in Sections 1.02, 2.01(a)(i), 2.01(a)(iii)(B),
2.01(a)(vii), 2.01(b)(i), 2.01(b)(ii), 2.01(b)(iv) or 2.01(c)(v) of any
Security Agreement to which such Loan Party is a party, or, in the case of
Xpedite UK, Sections 6.1.2(A), 9.1.1(A), 9.1.1(B), 9.1.2, 23.3.1 of the
Xpedite UK Security Agreement, or, in the case of XSL or any Significant
Subsidiary of Xpedite UK other than XSL, Sections 6.1.2(A), 9.1.1(A),
9.1.1(B), 9.1.2, 21.3.1 of the XSL Security Agreement or the UK Security
Agreement to which such Significant Subsidiary is a party, as the case may
be, or, in the case of any other security
-25-
agreement executed and delivered pursuant to Section 4.03(iii), the
sections thereof directly analogous to such Sections in the UK Security
Agreements; or
(B) any term, covenant, condition or agreement contained in any
Loan Document (other than any term, covenant, condition or agreement a
default in the performance or observance of which is elsewhere in this
Section specifically dealt with) and, if capable of being remedied, such
default shall continue unremedied for a period of 30 days after notice of
such default from the Administrative Agent;
(d) (i) Premiere, any Subsidiary or any other Loan Party shall fail
to pay, in accordance with its terms and when due and payable (after giving
effect to applicable grace periods), any of the principal of or interest on any
of its Indebtedness having a then outstanding principal amount in excess of
$2,500,000, (ii) the maturity of any such Indebtedness shall, in whole or in
part, have been accelerated, or any such Indebtedness shall, in whole or in
part, have been required to be prepaid prior to the stated maturity thereof, in
accordance with the provisions of any Contract evidencing, providing for the
creation of or concerning such Indebtedness, or (iii) any event shall have
occurred and be continuing that permits any holder or holders of any
Indebtedness of any such Person (other than the Loans), any trustee or
Administrative Agent acting on behalf of such holder or holders or any other
Person so to accelerate such maturity or require any such prepayment;
(e) (i) Premiere, any Subsidiary or any other Loan Party shall (A)
commence a voluntary case under the Federal bankruptcy laws (as now or hereafter
in effect), (B) file a petition seeking to take advantage of any other laws,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding
up or composition or adjustment of debts, (C) consent to or fail to contest in a
timely and appropriate manner any petition filed against it in an involuntary
case under such bankruptcy laws or other laws, (D) 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, liquidator or the like
of itself or of a substantial part of its assets, domestic or foreign, (E) admit
in writing its inability to pay, or generally not be paying, its debts (other
than those that are the subject of bona fide disputes) as they become due, (F)
make a general assignment for the benefit of creditors, or (G) take any
corporate action for the purpose of authorizing any of the foregoing;
(ii) (A) A case or other proceeding shall be commenced against
Premiere, any Subsidiary or any other Loan Party seeking (1) 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 composition or adjustment of debts, or (2) the appointment of a trustee,
receiver, custodian, liquidator or the like of Premiere, any Subsidiary or any
other Loan Party, or of all or any substantial part of the assets, domestic or
foreign, of Premiere, any Subsidiary or any other Loan Party, and, with respect
to both clauses (1) and (2), such case or proceeding shall continue undismissed
and unstayed for a period of 60 days, or (B) an order granting the relief
requested in such case or proceeding against Premiere, any Subsidiary or any
other Loan Party (including an order for relief under such Federal bankruptcy
laws) shall be entered;
-26-
(f) A judgment or order shall be entered against Premiere, any
Subsidiary or any other Loan Party by any court, and shall continue
undischarged, unbonded or unstayed for a period of 45 days (i) in which the
aggregate amount of all such judgments and orders in excess of Premiere's
applicable insurance coverage (so long as the insurer in respect thereof is not
disputing, and could not reasonably be expected to dispute, the applicability of
such insurance coverage) exceeds $2,500,000 or (ii) in the case of any judgment
or order for other than the payment of money, such judgment or order could, in
the reasonable judgment of the Required Banks, together with all other such
judgments or orders, have a Materially Adverse Effect on (A) Premiere and the
Consolidated Subsidiaries taken as a whole, (B) any Loan Document or (C) the
Collateral; or
(g) (i) any Termination Event shall occur with respect to any Benefit
Plan of Premiere, any Subsidiary, any other Loan Party or any of their
respective ERISA Affiliates, (ii) any Accumulated Funding Deficiency, whether or
not waived, shall exist with respect to any such Benefit Plan, (iii) any Person
shall engage in any Prohibited Transaction involving any such Benefit Plan, (iv)
Premiere, any Subsidiary, any other Loan Party or any of their respective ERISA
Affiliates shall be in "default" (as defined in ERISA Section 4219(c)(5)) with
respect to payments owing to any such Benefit Plan that is a Multiemployer
Benefit Plan as a result of such Person's complete or partial withdrawal (as
described in ERISA Section 4203 or 4205) therefrom, (v) Premiere, any
Subsidiary, any other Loan Party or any of their respective ERISA Affiliates
shall fail to pay when due an amount that is payable by it to the PBGC or to any
such Benefit Plan under Title IV of ERISA or (vi) a proceeding shall be
instituted by a fiduciary of any such Benefit Plan against Premiere, any
Subsidiary, any other Loan Party or any of their respective ERISA Affiliates to
enforce ERISA Section 515 and such proceeding shall not have been dismissed
within 30 days thereafter, except that no event or condition referred to in
clauses (i) through (vi) shall constitute an Event of Default if it, together
with all other such events or conditions at the time existing, has not
subjected, and in the reasonable determination of the Required Banks will not
subject, Premiere, any Subsidiary or any other Loan Party to any Liability that,
alone or in the aggregate with all such Liabilities for all such Persons,
exceeds $1,000,000; or
(h) Any Loan Party or any Affiliate of any Loan Party asserts, or any
Loan Party or any Affiliate of any Loan Party institutes any proceedings seeking
to establish, that (i) any provision of the Loan Documents is invalid, not
binding or unenforceable or (ii) the Security Interest is not a valid and
perfected first priority security interest in the Collateral subject only to
Permitted Liens; or
(i) (i) Premiere shall at any time cease to own and control all of
the Capital Securities of the Company outstanding at such time or (ii) any
person or group of persons acting together (within the meaning of Section 13 or
14 of the Securities Exchange Act of 1934) shall have or acquire at any time
after the Agreement Date beneficial ownership (within the meaning of rule 13d-3
promulgated by the Securities and Exchange Commission under said Act) of, or the
right to exercise voting power with respect to, more than 30% of the Capital
Securities of Premiere outstanding at such time.
Section 6.02 Remedies Upon Event of Default.
------------------------------
During the continuance of any Event of Default (other than one specified in
Section 6.01(e)) and in every such event, the
-27-
Administrative Agent may and, if the Required Banks shall so request, shall,
upon notice to Premiere, do either or both of the following: (a) declare, in
whole or, from time to time, in part, the principal of and interest on the Loans
and the Notes and all other amounts owing under the Loan Documents to be, and
the Loans and the Notes and all such other amounts shall thereupon and to that
extent become, immediately due and payable or (b) terminate, in whole or, from
time to time, in part, the Commitments. Upon the occurrence of an Event of
Default specified in Section 6.01(e), automatically and without any notice to
the Borrower or the Guarantor, (a) the principal of and interest on the Loans
and the Notes and all other amounts owing under the Loan Documents shall be
immediately due and payable and (b) the Commitments shall terminate.
Presentment, demand, protest or notice of any kind (other than the notice
provided for in the first sentence of this Section 6.02) are hereby expressly
waived.
ARTICLE 7
ADDITIONAL CREDIT FACILITY PROVISIONS
-------------------------------------
Section 7.01 Mandatory Suspension and Conversion of Eurocurrency Rate
--------------------------------------------------------
Loans.
-----
A Bank's obligations to make, continue or convert into Eurocurrency Rate
Loans of any Type shall be suspended, all such Bank's outstanding Loans of that
Type shall be converted (or, in the case of Loans to Xpedite UK, shall be repaid
(unless Xpedite UK and such Bank shall have agreed to an alternative interest
rate on such Bank's Loans to Xpedite UK, which alternative interest rate they
agree to negotiate in good faith)) on the last day of their applicable Interest
Periods (or, if earlier, in the case of clause (c) below, (or, in the case of
Loans to Xpedite UK, shall be repaid) on the last day such Bank may lawfully
continue to maintain Loans of that Type or, in the case of clause (d) below, on
the day determined by such Bank to be the last Business Day before the effective
date of the applicable restriction) into, and all pending requests for the
making or continuation of or conversion into Loans of such Type by such Bank
shall be deemed requests for, Base Rate Loans (or, in the case of Loans to
Xpedite UK, shall be deemed withdrawn (unless Xpedite UK and such Bank shall
have agreed to an alternative interest rate on such Bank's Loans to Xpedite
UK)), if:
(a) on or prior to the determination of an interest rate for a
Eurocurrency Rate Loan of that Type for any Interest Period, the Administrative
Agent reasonably determines that for any reason appropriate information is not
available to it for purposes of determining the Eurocurrency Rate for such
Interest Period;
(b) on or prior to the first day of any Interest Period for a
Eurocurrency Rate Loan of that Type, the Required Banks have informed the
Administrative Agent of their determination that the Eurocurrency Rate as
determined by the Administrative Agent for such Interest Period would not
accurately reflect the cost to such Banks of making, continuing or converting
into a Eurocurrency Rate Loan of such Type for such Interest Period; or
(c) at any time such Bank reasonably determines that any Regulatory
Change Enacted after the Restated Agreement Date makes it unlawful or
impracticable for such Bank or its applicable Lending Office to make, continue
or convert into, or fund, any Eurocurrency Rate Loan of that Type, or to comply
with its obligations hereunder in respect thereof.
-28-
If, as a result of this Section 7.01, any Loan of any Bank that would otherwise
be made or maintained as or converted into a Eurocurrency Rate Loan of any Type
for any Interest Period is instead made or maintained as or converted into a
Base Rate Loan (or, in the case of Loans to Xpedite UK, if such Bank and Xpedite
UK have agreed to an alternative interest rate on such Bank's Loans to Xpedite
UK), then, unless the corresponding Loan of each of the other Banks is also to
be made or maintained as or converted into a Base Rate Loan, such Loan shall be
treated as being a Eurocurrency Rate Loan of such Type for such Interest Period
for all purposes of this Agreement (including the timing, application and
proration among the Banks of interest payments, conversions and prepayments)
except for the calculation of the interest rate borne by such Loan. The
Administrative Agent shall promptly notify the applicable Borrower and each Bank
of the existence or occurrence of any condition or circumstance specified in
clause (a) or (b) above, and each Bank shall promptly notify the applicable
Borrower and the Administrative Agent of the existence or occurrence of any
condition or circumstance specified in clause (c) above applicable to such
Bank's Loans, but the failure by the Administrative Agent or such Bank to give
any such notice shall not affect such Bank's rights hereunder.
Section 7.02 Regulatory Changes.
------------------
If in the reasonable determination of any Bank, (a) any Regulatory Change
Enacted after the Restated Agreement Date shall directly or indirectly (i)
reduce the amount of any sum received or receivable by such Bank with respect to
any Loan, (ii) impose a cost on such Bank or any Affiliate of such Bank that is
attributable to the making, funding or maintaining of, or such Bank's commitment
to make or acquire, any Loan, including any reserve requirement, whether under
Regulation D or otherwise, (iii) require such Bank or any Affiliate of such Bank
to make any payment on or calculated by reference to the gross amount of any
amount received by such Bank under any Loan Document in respect of its Loans or
its obligations to make Loans or (iv) reduce, or have the effect of reducing,
the rate of return on any capital of such Bank or any Affiliate of such Bank
that such Bank or such Affiliate is required to maintain on account of any Loan
or such Bank's commitment to make or acquire any Loan and (b) such reduction,
increased cost or payment shall not result from a Tax to which Section 1.13 is
applicable, then the applicable Borrower shall pay to such Bank such additional
amounts as such Bank reasonably determines will, together with any adjustment in
the applicable rates of interest payable hereunder, fully compensate for such
reduction, increased cost or payment. Such additional amounts shall be payable,
in the case of those applicable to prior periods, within 15 days after request
by such Bank for such payment and, in the case of those applicable to future
periods, on the dates specified, or determined in accordance with a method
specified, by such Bank. Each Bank will promptly notify the applicable Borrower
of any determination made by it referred to in clauses (a) and (b) above, but
the failure to give such notice shall not affect such Bank's right to
compensation; provided, however, that the applicable Borrower shall not be
-------- -------
required to pay such additional amounts in respect of any Regulatory Change for
any period ending prior to the date that is 90 days prior to the giving of the
notice of the determination of such additional amounts (unless such period shall
have commenced after the date that such Bank notified the applicable Borrower of
the possibility that additional amounts may be payable as a result of such
Regulatory Change), except, if such Regulatory Change shall have been imposed
retroactively, for the period from the effective date of such Regulatory Change
to the date that is 90 days after the first date on which such Bank reasonably
should have had knowledge of such Regulatory Change.
-29-
Section 7.03 Funding Losses.
--------------
The applicable Borrower shall pay to each Bank, upon request, such amount
or amounts as such Bank reasonably determines are necessary to compensate it for
any loss, cost or expense (excluding loss of the Applicable Margin) incurred by
it as a result of (a) any payment, prepayment or conversion of a Eurocurrency
Rate Loan on a date other than the last day of an Interest Period for such
Eurocurrency Rate Loan or (b) a Eurocurrency Rate Loan for any reason not being
made or converted, or any payment of principal thereof or interest thereon not
being made, on the date therefor determined in accordance with the applicable
provisions of this Agreement. At the election of such Bank, and without
limiting the generality of the foregoing, but without duplication, such
compensation on account of losses may include an amount equal to the excess of
(i) the interest that would have been received from the applicable Borrower
under this Agreement (excluding the Applicable Margin) on any amounts to be
reemployed during an Interest Period or its remaining portion over (ii) the
interest component of the return that such Bank determines it could have
obtained had it placed such amount on deposit in the interbank Dollar or
Sterling market, as the case may be, selected by it for a period equal to such
Interest Period or its remaining portion.
Section 7.04 Certain Determinations.
----------------------
In making the determinations contemplated by Sections 7.01, 7.02 and 7.03,
each Bank may make such estimates, assumptions, allocations and the like that
such Person reasonably determines to be appropriate, and such Person's selection
thereof in accordance with this Section 7.04, and the determinations made by
such Person on the basis thereof, shall be final, binding and conclusive upon
the Borrowers, except, in the case of such determinations, for manifest errors
in computation or transmission. Each Bank shall furnish to the applicable
Borrower a certificate outlining in reasonable detail the computation of any
amounts claimed by it under Sections 7.02 and 7.03 and the assumptions
underlying such computations.
Section 7.05 Change of Lending Office.
------------------------
If an event occurs with respect to a Lending Office of any Bank that
obligates either Borrower to pay any amount under Section 1.13, makes operable
the provisions of clause (c) of Section 7.01 or would, absent this Section 7.05,
entitle such Bank to make a claim under Section 1.13(a) or 7.02, such Bank
shall, if requested by the applicable Borrower, use reasonable efforts to
designate another Lending Office or Offices the designation of which will reduce
the amount the Borrowers are so obligated to pay, eliminate such operability or
reduce the amount such Bank is so entitled to claim, provided that such
designation would not, in the sole and absolute discretion of such Bank be
disadvantageous to such Bank in any manner or contrary to such Bank's policies.
Each Bank may at any time and from time to time change any Lending Office and
shall give notice of any such change to the Administrative Agent and the
Borrowers. Except in the case of a change in Lending Offices made at the
request of a Borrower, the designation of a new Lending Office by any Bank shall
not obligate the Borrowers to pay any amount to such Bank under Section 1.13,
make operable the provisions of clause (c) of Section 7.01 or entitle such Bank
to make a claim under Section 1.13(a) or 7.02 if such obligation, the
operability of such clause or such claim results directly from such designation
and not from a Regulatory Change Enacted thereafter.
Section 7.06 Replacement of Banks.
--------------------
If any Bank requests compensation pursuant to Section 1.13 or 7.02, or such
Bank's obligation to make or continue, or to convert Loans of any other Type
into, any Type of Eurocurrency Rate Loan shall be suspended pursuant to Section
7.01, Premiere, upon three Business Days' notice, may require that such Bank
transfer all of its
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right, title and interest under this Agreement and such Bank's Notes to any bank
or financial institution identified by Premiere with the consent of the
Administrative Agent (a) if such proposed transferee agrees to assume all of the
obligations of such Bank for consideration equal to the outstanding principal
amount of such Bank's Loans, together with interest thereon to the date of such
transfer, and satisfactory arrangements are made for payment to such Bank of all
other amounts payable hereunder to such Bank on or prior to the date of such
transfer (including any fees accrued hereunder and any amounts that would be
payable under Section 7.03 as if all of such Bank's Loans were being prepaid in
full on such date) and (b) if such Bank being replaced has requested
compensation pursuant to Section 1.13 or 7.02, such proposed transferee's
aggregate requested compensation, if any, pursuant to Section 1.13 or 7.02 with
respect to such replaced Bank's Loans is lower than that of the Bank replaced.
Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements of the Borrowers contained in Sections 1.13, 7.02,
7.03 and 10.02) shall survive for the benefit of any Bank replaced under this
Section 7.06 with respect to the time prior to such replacement.
ARTICLE 8
GUARANTY
--------
Section 8.01 Guaranty of Payment and Performance; Limitation of Guaranty.
-----------------------------------------------------------
(a) Each of the Guarantors hereby (a) absolutely, unconditionally and
irrevocably guarantees to the Guaranteed Parties the due and punctual payment
and performance of all of the Guaranteed Obligations in accordance with their
respective terms and when and as due (whether at maturity, by reason of
acceleration or otherwise, but giving effect to any applicable grace period set
forth in Section 6.01(a)), or deemed to be due pursuant to Section 8.02, and (b)
agrees so to pay the same when so due, or deemed to be due, upon demand.
(b) It is the intention of the Guarantors and the Guaranteed Parties
that the obligations of the Guarantors under this Article 8 shall be in, but not
in excess of, the maximum amount permitted by Applicable Law. To that end, but
only to the extent such obligations would otherwise be avoidable, the
obligations of each Guarantor under this Article 8 shall be limited to the
maximum amount that, after giving effect to the incurrence thereof, would not
render such Guarantor insolvent or unable to pay its debts as they mature or
leave such Guarantor with an unreasonably small capital. The need for any such
limitation shall be determined, and any such needed limitation shall be
effective, with respect to each Guarantor at the time or times that such
Guarantor is deemed, under Applicable Law, to incur obligations thereunder. Any
such limitation shall be apportioned amongst the Guaranteed Obligations of the
Guaranteed Parties pro rata in accordance with their respective amounts thereof.
This Section 8.01(b) is intended solely to preserve the rights of the Guaranteed
Parties under this Article 8 to the maximum extent permitted by Applicable Law,
and none of the Guarantors or any other Person shall have any right under this
Section 8.01(b) that it would not otherwise have under Applicable Law. For the
purposes of this Section 8.01(b), "insolvency", "unreasonably small capital" and
"inability to pay debts as they mature" shall be determined in accordance with
Applicable Law.
Section 8.02 Continuance and Acceleration of Guaranteed Obligations Upon
-----------------------------------------------------------
Certain Events. If:
--------------
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(a) any Event of Default resulting in the automatic acceleration of
any Guaranteed Obligations shall occur;
(b) any injunction, stay or the like that enjoins any acceleration, or
demand for the payment of any Guaranteed Obligations that would otherwise be
required or permitted under the Loan Documents shall become effective; or
(c) any Guaranteed Obligations shall be or be determined to be or
become discharged (other than by payment or performance in full), disallowed,
invalid, illegal, void or otherwise unenforceable (whether by operation of any
present or future law or by order of any court or governmental agency) against
the applicable Borrower;
then (i) such Guaranteed Obligations shall, for all purposes hereunder, be
deemed (A) in the case of clause (c), to continue to be outstanding and in full
force and effect notwithstanding the unenforceability thereof against the
applicable Borrower and (B) if such is not already the case, to have thereupon
become immediately due and payable and to have commenced bearing interest at the
Post-Default Rate and (ii) the Guaranteed Parties may exercise all of the rights
and remedies hereunder that would be available to them during an Event of
Default.
Section 8.03 Recovered Payments.
------------------
The Guaranteed Obligations shall be deemed not to have been paid, observed
or performed, and the Guarantor's obligations hereunder in respect thereof shall
continue and not be discharged, to the extent that any payment thereof by either
Borrower or any Guarantor, or out of the proceeds of any collateral, is
recovered from or paid over by or for the account of the Guaranteed Parties for
any reason, including as a preference or fraudulent transfer or by virtue of any
subordination (whether present or future or contractual or otherwise) of the
Guaranteed Obligations, whether such recovery or payment over is effected by any
judgment, decree or order of any court or governmental agency, by any plan of
reorganization or by settlement or compromise by the Guaranteed Parties (whether
or not consented to by either Borrower, any of the Guarantors or any other
guarantor) of any claim for any such recovery or payment over. Each of the
Guarantors hereby expressly waives the benefit of any applicable statute of
limitations and agrees that it shall be liable hereunder whenever such a
recovery or payment over occurs.
Section 8.04 Nature of Guarantors' Obligations.
---------------------------------
The Guarantors' obligations under the Loan Documents (a) are absolute and
unconditional, (b) constitute a guaranty of payment and not a guaranty of
collection, (c) are as primary obligor and not as a surety only, (d) shall be a
continuing guaranty of all present and future Guaranteed Obligations and all
promissory notes and other documentation given in extension or renewal or
substitution for any of the Guaranteed Obligations and (e) shall be irrevocable.
Section 8.05 No Release of Guarantors.
------------------------
THE OBLIGATIONS OF EACH OF THE GUARANTORS HEREUNDER SHALL NOT BE REDUCED,
LIMITED OR TERMINATED, NOR SHALL ANY GUARANTOR BE DISCHARGED FROM ANY THEREOF,
FOR ANY REASON WHATSOEVER (other than, subject to Sections 8.03, the payment,
observance and performance of the Guaranteed Obligations and except in the event
such Guarantor is not a Significant Subsidiary and is disposed of in accordance
with Section 4.09(d)), including (and
-32-
whether or not the same shall have occurred or failed to occur once or more than
once and whether or not any Guarantor shall have received notice thereof):
(a) (i) any increase in the principal amount of, or interest rate
applicable to, (ii) any extension of the time of payment, observance or
performance of, (iii) any other amendment or modification of any of the other
terms and provisions of, (iv) any release, composition or settlement (whether by
way of acceptance of a plan of reorganization or otherwise) of, (v) any
subordination (whether present or future or contractual or otherwise) of, or
(vi) any discharge, disallowance, invalidity, illegality, voidness or other
unenforceability of, the Guaranteed Obligations;
(b) (i) any failure to obtain, (ii) any release, composition or
settlement of, (iii) any amendment or modification of any of the terms and
provisions of, (iv) any subordination of, or (v) any discharge, disallowance,
invalidity, illegality, voidness or other unenforceability of, any other
guaranties of the Guaranteed Obligations;
(c) (i) any failure to obtain or any release of, (ii) any failure to
protect or preserve, (iii) any release, compromise, settlement or extension of
the time of payment of any obligations constituting, (iv) any failure to perfect
or maintain the perfection or priority of any Lien upon, (v) any subordination
of any Lien upon, or (vi) any discharge, disallowance, invalidity, illegality,
voidness or other unenforceability of any Lien or intended Lien upon, any
collateral now or hereafter securing the Guaranteed Obligations or any other
guaranties thereof;
(d) any termination of or change in any relationship between any
Guarantor and any other Loan Party including any such termination or change
resulting from a change in the ownership of any Guarantor or any other Loan
Party or from the cessation of any commercial relationship between any Guarantor
and any other Loan Party;
(e) any exercise of, or any election not to exercise or failure to
exercise, delay in the exercise of, waiver of, or forbearance or other
indulgence with respect to, any right, remedy or power available to the
Guaranteed Parties, including (i) any election not to exercise or failure to
exercise any right of setoff, recoupment or counterclaim, (ii) any election of
remedies effected by the Guaranteed Parties, including the foreclosure upon any
real estate constituting election of remedies effected by the Guaranteed
Parties, including the foreclosure upon any real estate constituting collateral,
whether or not such election affects the right to obtain a deficiency judgment,
and (iii) any election by the Guaranteed Parties in any proceeding under the
Bankruptcy Code of the application of Section 1111(b)(2) of such Bankruptcy
Code; and
(f) ANY OTHER ACT OR FAILURE TO ACT OR ANY OTHER EVENT OR CIRCUMSTANCE
THAT (i) VARIES THE RISK OF ANY GUARANTOR HEREUNDER OR (ii) BUT FOR THE
PROVISIONS HEREOF, WOULD, AS A MATTER OF STATUTE OR RULE OF LAW OR EQUITY,
OPERATE TO REDUCE, LIMIT OR TERMINATE THE OBLIGATIONS OF ANY GUARANTOR HEREUNDER
OR DISCHARGE ANY GUARANTOR FROM ANY THEREOF.
Section 8.06 Certain Waivers.
---------------
Each of the Guarantors waives:
-33-
(a) any requirement, and any right to require, that any right or power
be exercised or any action be taken against either Borrower or any collateral
for the Guaranteed Obligations;
(b) all defenses to, and all setoffs, counterclaims and claims of
recoupment against, the Guaranteed Obligations that may at any time be available
to any other Guarantor (and agrees that payments due from such Guarantor
hereunder shall be made without any reduction or deduction whatsoever, including
any reduction or deduction for any setoff, counterclaim or claim of recoupment
otherwise available to such Guarantor or to either Borrower);
(c) (i) notice of acceptance of and intention to rely hereunder, (ii)
notice of the making or renewal of any Loans or other extensions of credit
hereunder and of the incurrence or renewal of any other Guaranteed Obligations,
(iii) notice of any of the matters referred to in Section 8.05 and (iv) all
other notices that may be required by Applicable Law or otherwise to preserve
any rights against any Guarantor hereunder, including any notice of default,
demand, dishonor, presentment and protest;
(d) diligence;
(e) any defense based upon, arising out of or in any way related to
(i) any claim that any sale or other disposition of any collateral for the
Guaranteed Obligations was not conducted in a commercially reasonable fashion or
that a public sale, should the Guaranteed Parties have elected so to proceed,
was, in and of itself, not a commercially reasonable method of sale, (ii) any
claim that any election of remedies by the Guaranteed Parties, including the
exercise by the Guaranteed Parties of any rights against any collateral,
impaired, reduced, released or otherwise extinguished any right that any
Guarantor might otherwise have had against either Borrower or against any
collateral, including any right of subrogation, exoneration, reimbursement or
contribution or right to obtain a deficiency judgment, (iii) any claim based
upon, arising out of or in any way related to any of the matters referred to in
Section 8.06 and (iv) any claim that the Loan Documents should be strictly
construed against the Guaranteed Parties; and
(f) ALL OTHER DEFENSES UNDER ANY APPLICABLE LAW THAT WOULD, BUT FOR
THIS CLAUSE (f), BE AVAILABLE TO ANY GUARANTOR AS A DEFENSE AGAINST OR A
REDUCTION OR LIMITATION OF ITS LIABILITIES AND OBLIGATIONS HEREUNDER.
Section 8.07 Subordination of Rights Against the Borrowers and Collateral.
------------------------------------------------------------
All rights that any Guarantor may at any time have against either Borrower
or any collateral for the Guaranteed Obligations (including rights of
subrogation, exoneration, reimbursement and contribution and whether arising
under Applicable Law or otherwise), and all obligations that either Borrower may
at any time have to any Guarantor, arising by virtue of such Guarantor's
obligations to pay principal, interest or other amounts payable to Guaranteed
Parties hereunder, any payment made pursuant thereto or the exercise by the
Guaranteed Parties of their rights with respect to any collateral are hereby
expressly subordinated to the prior payment, observance and performance in full
of the Guaranteed Obligations. No Guarantor shall enforce any of the rights,
-34-
or attempt to obtain payment or performance of any of the obligations,
subordinated pursuant to this Section 8.07 until the Guaranteed Obligations have
been paid, observed and performed in full, except that such prohibition shall
not apply to routine acts, such as the giving of notices and the filing of
continuation statements, necessary to preserve any such rights. If any amount
shall be paid to or recovered by any Guarantor (whether directly or by way of
setoff, recoupment or counterclaim) on account of any right or obligation
subordinated pursuant to this Section 8.07, such amount shall be held by such
Guarantor for the benefit of the Guaranteed Parties.
ARTICLE 9
THE AGENTS
----------
Section 9.01 Appointment and Powers.
----------------------
Each Bank hereby irrevocably appoints and authorizes The Bank of New York,
and The Bank of New York hereby agrees, to act as the Administrative Agent for
such Bank under the Loan Documents with such powers as are delegated to the
Administrative Agent and the Secured Party by the terms thereof, together with
such other powers as are reasonably incidental thereto. The Administrative
Agent's duties shall be purely ministerial and it shall have no duties or
responsibilities except those expressly set forth in the Loan Documents. The
Administrative Agent shall not be required under any circumstances to take any
action that, in its judgment, (a) is contrary to any provision of the Loan
Documents or Applicable Law or (b) would expose it to any Liability or expense
against which it has not been indemnified to its satisfaction. The
Administrative Agent shall not, by reason of its serving as the Administrative
Agent, be a trustee or other fiduciary for any Bank. NationsBank, N.A., as
Documentation Agent, shall have no rights or duties under, and no liability
arising out of, the Loan Documents in its capacity as Documentation Agent.
Section 9.02 Limitation on Administrative Agent's Liability.
----------------------------------------------
Neither the Administrative Agent nor any of its directors, officers,
employees or agents shall be liable or responsible for any action taken or
omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
The Administrative Agent shall not be responsible to any Bank for (a) any
recitals, statements, representations or warranties contained in the Loan
Documents or in any certificate or other document referred to or provided for
in, or received by any of the Banks under, the Loan Documents, (b) the validity,
effectiveness or enforceability of the Loan Documents or any such certificate or
other document or the value or sufficiency of the Collateral or (c) any failure
by the Loan Parties to perform any of their obligations under the Loan
Documents. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact so long as the Administrative Agent was not grossly negligent
in selecting or directing such agents or attorneys-in-fact. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telex, telecopier, telegram
or cable) believed by it to be genuine and correct and to have been signed or
given by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Administrative Agent. As to any matters not expressly provided for by
the Loan Documents, the Administrative Agent shall in all cases be fully
protected in acting, or in refraining from acting, under the Loan Documents in
accordance with instructions signed by the
-35-
Required Banks, and such instructions of the Required Banks and any action taken
or failure to act pursuant thereto shall be binding on all of the Banks.
Section 9.03 Defaults.
--------
The Administrative Agent shall not be deemed to have knowledge of the
occurrence of a Default (other than the non-payment to it of principal of or
interest on Loans or fees) unless the Administrative Agent has received notice
from a Bank or a Borrower specifying such Default and stating that such notice
is a "Notice of Default". In the event that the Administrative Agent has
knowledge of such a non-payment or receives such a notice of the occurrence of a
Default, the Administrative Agent shall give prompt notice thereof to the Banks.
In the event of any Default, the Administrative Agent shall (a) in the case of a
Default that constitutes an Event of Default, take either or both of the actions
referred to in clauses (a) and (b) of the first sentence of Section 6.02 if so
directed by the Required Banks and (b) in the case of any Default, take such
other action with respect to such Default as shall be reasonably directed by the
Required Banks. Unless and until the Administrative Agent shall have received
such directions, in the event of any Default, the Administrative Agent may (but
shall not be obligated to) take such action, or refrain from taking such action,
with respect to such Default as it shall deem advisable in the best interests of
the Banks.
Section 9.04 Rights as a Bank.
----------------
Each Person acting as the Administrative Agent that is also a Bank shall,
in its capacity as a Bank, have the same rights and powers under the Loan
Documents as any other Bank and may exercise the same as though it were not
acting as the Administrative Agent, and the term "Bank" or "Banks" shall include
such Person in its individual capacity. Each Person acting as the
Administrative Agent (whether or not such Person is a Bank) and its Affiliates
may (without having to account therefor to any Bank) accept deposits from, lend
money to and generally engage in any kind of banking, trust or other business
with the Loan Parties and their Affiliates as if it were not acting as the
Administrative Agent, and such Person and its Affiliates may accept fees and
other consideration from the Loan Parties and their Affiliates for services in
connection with the Loan Documents or otherwise without having to account for
the same to the Banks.
Section 9.05 Indemnification.
---------------
The Banks agree to indemnify the Administrative Agent (to the extent not
reimbursed by the Loan Parties under the Loan Documents), ratably on the basis
of the respective principal amounts of the Loans outstanding made by the Banks
(or, if no Loans are at the time outstanding, ratably on the basis of their
respective Commitments), for any and all Liabilities, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against the Administrative Agent (including the costs and expenses that the Loan
Parties are obligated to pay under the Loan Documents) in any way relating to or
arising out of the Loan Documents or any other documents contemplated thereby or
referred to therein or the transactions contemplated thereby or the enforcement
of any of the terms thereof or of any such other documents, provided that no
Bank shall be liable for any of the foregoing to the extent (a) they are subject
to the indemnity contemplated by the last sentence of Section 10.10(b) or (b)
they arise from gross negligence or willful misconduct by the Administrative
Agent.
Section 9.06 Non-Reliance on Administrative Agent and Other Banks.
----------------------------------------------------
Each Bank agrees that it has made and will continue to make, independently
and without reliance on the Administrative Agent or any other Bank, and based on
such documents and information as it
-36-
deems appropriate, its own credit analysis of the Loan Parties and its own
decision to enter into the Loan Documents and to take or refrain from taking any
action in connection therewith. The Administrative Agent shall not be required
to keep itself informed as to the performance or observance by the Loan Parties
of the Loan Documents or any other document referred to or provided for therein
or to inspect the properties or books of any Loan Party or any Subsidiary
thereof. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
under the Loan Documents, the Administrative Agent shall have no obligation to
provide any Bank with any information concerning the business, status or
condition of any Loan Party or any Subsidiary thereof or the Loan Documents that
may come into the possession of the Administrative Agent or any of its
Affiliates.
Section 9.07 Resignation of the Administrative Agent.
---------------------------------------
The Administrative Agent may at any time give notice of its resignation to
the Banks and the Borrowers. Upon receipt of any such notice of resignation,
the Required Banks may, with the consent of Premiere (which consent shall not be
unreasonably withheld), appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Banks and shall have accepted such appointment within 30 days after the retiring
Administrative Agent's giving of notice of resignation, then the retiring
Administrative Agent may, on behalf of the Banks and with the consent of
Premiere (which consent shall not be unreasonably withheld), appoint a successor
Administrative Agent. Upon the acceptance by any Person of its appointment as a
successor Administrative Agent, such Person shall thereupon succeed to and
become vested with all the rights, powers, privileges, duties and obligations of
the retiring Administrative Agent and the retiring Administrative Agent shall be
discharged from its duties and obligations as Administrative Agent under the
Loan Documents. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Article 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 the Administrative Agent.
Section 9.08 Execution and Amendment of Loan Documents on Behalf of the
----------------------------------------------------------
Banks.
-----
Each Bank hereby authorizes the Administrative Agent to (a) execute and
deliver, in the name of and on behalf of such Bank, (i) the Security Agreements
and the UK Security Agreements, (ii) all UCC financing and continuation
statements and other documents the filing or recordation of which are, in the
determination of the Administrative Agent, necessary or appropriate to create,
perfect or maintain the existence or perfected status of the Security Interest
and (iii) any other Loan Document requiring execution by or on behalf of such
Bank, and (b) release Collateral from the Security Interest to the extent that
such Collateral has been disposed of in accordance with Section 4.09. The
Administrative Agent shall consent to any amendment of any term, covenant,
agreement or condition of the Security Agreements and the UK Security
Agreements, or to any waiver of any right thereunder, if, but only if, the
Administrative Agent is directed to do so in writing by the Required Banks;
provided, however, that (i) the Administrative Agent shall not be required to
-------- -------
consent to any such amendment or waiver that affects its rights or duties and
(ii) the Administrative Agent shall not, unless directed to do so in writing by
each Bank, (A) consent to any assignment by any Loan Party of any of its rights
or obligations under any such agreement or (B) release any Collateral from the
Security Interest, except as specified in clause (b) above.
-37-
ARTICLE 10
MISCELLANEOUS
-------------
Section 10.01 Notices and Deliveries.
----------------------
Except as otherwise expressly provided, all notices, communications and
materials to be given or delivered pursuant to the Loan Documents shall be given
or delivered in writing (which shall include telecopy transmissions) at the
following respective addresses and telecopier numbers and to the attention of
the following individuals or departments or at such other address or telecopier
or telephone number or to the attention of such other individual or department
as the party to which such information pertains may hereafter specify:
(a) if to Premiere, or the Company, to Premiere at:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Lenox Building, Suite 600
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.:
Telecopier No.:
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
(b) if to any other Loan Party, to it at:
c/o Premiere Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Lenox Building, Suite 400
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.:
Telecopier No.:
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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(c) if to the Administrative Agent, to it at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇ (6,7)
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇ ▇▇▇▇▇
(▇) if to any Bank, to it at the address or telecopier number and to
the attention of the individual or department, set forth below such Bank's name
under the heading "Notice Address" on Annex A or, in the case of a Bank that
-------
becomes a Bank pursuant to an assignment, set forth under the heading "Notice
Address" in the Notice of Assignment given to the Borrowers and the
Administrative Agent with respect to such assignment.
Notices, communications and materials shall be deemed given or delivered
when delivered or received at the appropriate address or telecopy number to the
attention of the appropriate individual or department except that notices to be
given or items of Collateral to be delivered to the Administrative Agent or any
Bank pursuant to Sections 1.02, 1.03(c), 1.05, 1.07 and 1.12(b) or pursuant to
any Collateral Document shall not be deemed given or delivered until received by
the officer of the Administrative Agent or, in the case of such notices, such
Bank responsible, at the time, for the administration of the Loan Documents.
Section 10.02 Expenses; Indemnification.
-------------------------
Whether or not any Loans are made hereunder, Premiere shall:
(a) pay or reimburse the Administrative Agent and each Bank for all
transfer, documentary, stamp and similar taxes, and all recording and filing
fees and taxes, payable in connection with, arising out of, or in any way
related to, the execution, delivery and performance of the Loan Documents or the
making of the Loans;
(b) pay or reimburse the Administrative Agent for all reasonable costs
and expenses (including reasonable fees and disbursements of legal counsel,
appraisers, accountants and other experts employed or retained by the
Administrative Agent) incurred by the Administrative Agent in connection with,
arising out of, or in any way related to (i) the
-39-
negotiation, preparation, execution and delivery of (A) the Loan Documents and
(B) whether or not executed, any waiver, amendment or consent thereunder or
thereto, (ii) the administration of and any operations under the Loan Documents,
including (A) the protection or preservation of the Collateral, (B) the
protection, preservation, exercise or enforcement of any of the rights of the
Administrative Agent or the Banks in, under or related to the Collateral or the
Loan Documents or (C) the performance of any of the obligations of the
Administrative Agent or the Banks under or related to the Loan Documents, (iii)
protecting or preserving the Collateral or (iv) protecting, preserving,
exercising or enforcing any of the rights of the Administrative Agent or the
Banks in, under or related to the Collateral or the Loan Documents, including
defending the Security Interest as a valid, perfected, first priority security
interest in the Collateral subject to Permitted Liens;
(c) pay or reimburse each of the Banks for all reasonable costs and
expenses (including reasonable fees and disbursements of legal counsel and other
experts employed or retained by such Bank) incurred by such Bank after the
occurrence of an Event of Default in connection with, arising out of, or in any
way related to protecting, preserving, exercising or enforcing any of its rights
in, under or related to the Collateral or the Loan Documents; and
(d) indemnify and hold each Indemnified Person harmless from and
against all losses (including judgments, penalties and fines) suffered, and pay
or reimburse each Indemnified Person for all reasonable costs and expenses
(including reasonable fees and disbursements of legal counsel and other experts
employed or retained by such Indemnified Person) incurred, by such Indemnified
Person in connection with, arising out of, or in any way related to (i) any Loan
Document Related Claim (whether asserted by such Indemnified Person, a Borrower,
any Guarantor or any other Person), including the prosecution or defense thereof
and any litigation or proceeding with respect thereto (whether or not, in the
case of any such litigation or proceeding, such Indemnified Person is a party
thereto), or (ii) any investigation, governmental or otherwise, arising out of,
related to, or in any way connected with, the Loan Documents or the
relationships established thereunder, except that the foregoing indemnity shall
not be applicable to any loss suffered by any Indemnified Person to the extent
such loss is determined by a judgment of a court that is binding on the
applicable Borrower and such Indemnified Person, to be the result of acts or
omissions on the part of such Indemnified Person constituting (x) gross
negligence or (y) willful misconduct.
Section 10.03 Amounts Payable Due Upon Request for Payment.
--------------------------------------------
All amounts payable by the Borrowers under Section 10.02 and under the
other provisions of the Loan Documents shall, except as otherwise expressly
provided, be due within five Business Days following written request for the
payment thereof.
Section 10.04 Remedies of the Essence.
-----------------------
The various rights and remedies of the Administrative Agent and the Banks
under the Loan Documents are of the essence of those agreements.
Section 10.05 Rights Cumulative.
-----------------
Each of the rights and remedies of the Administrative Agent, and the Banks
under the Loan Documents shall be in addition to all of their other rights and
remedies under the Loan Documents and Applicable Law, and nothing in the Loan
Documents shall be construed as limiting any such rights or remedies.
-40-
Section 10.06 Confidentiality and Disclosures.
-------------------------------
The Administrative Agent and each Bank agrees to take normal and reasonable
precautions and exercise due care to maintain the confidentiality of all non-
public information provided to it by the Borrowers or any Guarantor in
connection with any Loan Document, provided that the Administrative Agent and
--------
the Banks may disclose to, and exchange and discuss with, any other Person who
has agreed (to the extent that obtaining such agreement is reasonably
practicable) to be bound by the provisions of this Section 10.06 (the
Administrative Agent, the Banks and each such other Person being hereby
authorized to do so) any information concerning Premiere or any Subsidiary
(whether received by the Administrative Agent, the Banks or such other Person in
connection with or pursuant to the Loan Documents or otherwise) (a) if such
Person is an Affiliate of the Administrative Agent or such Bank or (b) for the
purpose of (i) complying with Applicable Law, (ii) protecting or preserving the
Collateral or protecting, preserving, exercising or enforcing any of their
rights in, under or related to the Collateral or the Loan Documents, (iii)
performing any of their obligations under or related to the Loan Documents or
(iv) consulting with respect to any of the foregoing matters.
Section 10.07 Amendments; Waivers.
-------------------
Any term, covenant, agreement or condition of the Loan Documents may be
amended, and any right under the Loan Documents may be waived, if, but only if,
such amendment or waiver is in writing and is signed by (a) in the case of an
amendment or waiver with respect to the Loan Documents referred to in Section
9.08(a), the Administrative Agent, (b) in the case of an amendment or waiver
with respect to any other Loan Document, the Required Banks and, if the rights
and duties of the Administrative Agent are affected thereby, by the
Administrative Agent and (c) in the case of an amendment with respect to any
Loan Document, by the Borrowers and, if such amendment amends Article 8 hereof,
the Guarantors; provided, however, that no amendment or waiver shall be
-------- -------
effective, unless in writing and signed by each Bank affected thereby, to the
extent it (i) changes the amount of such Bank's Commitment, (ii) reduces the
principal of or the rate of interest on such Bank's Loans or Notes or any fees
payable to such Bank hereunder, (iii) postpones any date fixed for any payment
of principal of or interest on such Bank's Loans, Notes or any fees payable to
such Bank hereunder, (iv) releases any Guarantor from its obligations under
Section 8.01 or releases any Collateral from the Security Interest except to the
extent that such Collateral has been disposed of in accordance with Section
4.09, or (v) amends Section 1.01(b), Section 1.14, this Section 10.07, the
definition of "Required Banks" contained in Section 11.01 or any other provision
of this Agreement requiring the consent or other action of all of the Banks.
Unless otherwise specified in such waiver, a waiver of any right under the Loan
Documents shall be effective only in the specific instance and for the specific
purpose for which given. No election not to exercise, failure to exercise or
delay in exercising any right, nor any course of dealing or performance, shall
operate as a waiver of any right of the Administrative Agent or any Bank under
the Loan Documents or Applicable Law, nor shall any single or partial exercise
of any such right preclude any other or further exercise thereof or the exercise
of any other right of the Administrative Agent or any Bank under the Loan
Documents or Applicable Law. Upon any disposition of assets (including Capital
Securities) permitted by Section 4.09, the Administrative Agent shall, and the
Banks hereby so direct it to, release its Lien in such assets and shall execute
and record, at Premiere's expense, such release documents as Premiere shall
reasonably request.
Section 10.08 Set-Off; Suspension of Payment and Performance.
----------------------------------------------
The Administrative Agent and each Bank are hereby authorized by the
Borrowers, at any time and from time to time, without notice, during any Event
of Default under Section 6.01(a) or at any time after amounts
-41-
payable hereunder shall have been declared immediately due and payable pursuant
to Section 6.02, to set off against, and to appropriate and apply to the payment
of, the Liabilities of any Loan Party under the Loan Documents (whether owing to
such Person or to any other Person that is the Administrative Agent or a Bank
and whether matured or unmatured, fixed or contingent) any and all Liabilities
owing by such Person or any of its Affiliates to any Loan Party (whether payable
in Dollars, Sterling or any other currency, whether matured or unmatured and, in
the case of Liabilities that are deposits, whether general or special, time or
demand and however evidenced and whether maintained at a branch or office
located within or without the United States).
Section 10.09 Sharing of Recoveries.
---------------------
Each Bank agrees that, if, for any reason, including as a result of (i) the
exercise of any right of counterclaim, set-off, banker's lien or similar right,
(ii) its claim in any applicable bankruptcy, insolvency or other similar law
being deemed secured by a "debt" under Section 101(11) of the Bankruptcy Code
owed by it to any Loan Party, including a claim deemed secured under Section 506
of the Bankruptcy Code, or (iii) the allocation of payments by the
Administrative Agent or any Loan Party in a manner contrary to the provisions of
Section 1.14, such Bank shall receive payment of a proportion of the aggregate
amount due and payable to it hereunder as principal of or interest on the Loans
or fees that is greater than the proportion received by any other Bank in
respect of the aggregate of such amounts due and payable to such other Bank
hereunder, then the Bank receiving such proportionately greater payment shall
purchase participations (which it shall be deemed to have done simultaneously
upon the receipt of such payment) in the rights of the other Banks hereunder so
that all such recoveries with respect to such amounts due and payable hereunder
(net of costs of collection) shall be pro rata; provided that if all or part of
such proportionately greater payment received by the purchasing Bank is
thereafter recovered by or on behalf of any Loan Party from such Bank, such
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such Bank to the extent of such recovery,
but without interest (unless the purchasing Bank is required to pay interest on
the amount recovered to the Person recovering such amount, in which case the
selling Bank shall be required to pay interest at a like rate). Each of the
Borrowers and the Guarantors expressly consents to the foregoing arrangements
and agrees that any holder of a participation in any rights hereunder so
purchased or acquired pursuant to this Section 10.09 shall, with respect to such
participation, be entitled to all of the rights of a Bank under Sections 7.02,
10.02 and 10.08 (subject to any condition imposed on a Bank hereunder with
respect thereto) and may exercise any and all rights of set-off with respect to
such participation as fully as though the Loan Parties were directly indebted to
the holder of such participation for Loans in the amount of such participation.
Section 10.10 Assignments and Participations.
------------------------------
(a) Assignments.
-----------
(i) None of the Loan Parties may assign any of its rights or
obligations under the Loan Documents without the prior written consent of each
Bank, and no assignment of any such obligation shall release such Loan Party
therefrom unless each Bank shall have consented to such release in a writing
specifically referring to the obligation from which such Loan Party is to be
released.
(ii) Each Bank may from time to time assign any or all of its rights
and obligations under the Loan Documents to one or more Persons, provided that,
--------
except in the case of the grant of a security interest to a Federal Reserve Bank
(which may be made without condition or restriction) no such assignment shall be
effective unless (A) the assignment is consented to by
-42-
Premiere (unless an Event of Default exists at such time or such assignment is
to an Affiliate of such Bank) and the Administrative Agent, (B) a Notice of
Assignment with respect to the assignment, duly executed by the assignor and the
assignee, shall have been given to the Borrowers and the Administrative Agent
and (C) except in the case of an assignment by the Bank that is the
Administrative Agent, the Administrative Agent shall have been paid an
assignment fee of $3,500. Upon any effective assignment, (1) the assignor shall
be released from the obligations so assigned and, in the case of an assignment
of all of its Loans and Commitment, shall cease to be a Bank and (2) the
assignee shall have all of the rights and shall be obligated to perform all of
the obligations of a Bank; provided, however, that no assignee shall be entitled
-----------------
to any amounts that would otherwise be payable to it with respect to its
assignment under Section 1.13 or 7.02 unless (x) such amounts are payable in
respect of a Regulatory Change Enacted after the date the applicable assignment
agreement became effective or (y) such amounts would have been payable to the
Bank that made such assignment if such assignment had not been made. In the
event of any effective assignment by a Bank, each of the Borrowers shall,
against (except in the case of a partial assignment) receipt of the existing
Note of the assignor Bank, issue a new Note to the assignee Bank.
(b) Participations.
--------------
Each Bank may from time to time sell or otherwise grant participations in
any or all of its rights and obligations under the Loan Documents without the
consent of the Borrowers, any Guarantor, the Administrative Agent or any other
Bank. In the event of any such grant by a Bank of a participation, such Bank's
obligations under the Loan Documents to the other parties thereto shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, and the Loan Parties, the Administrative Agent and the other Banks may
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations thereunder. Each holder of a participation in any
rights under the Loan Documents, except to the extent the applicable
participation agreement provides to the contrary, shall, with respect to such
participation, be entitled to all of the rights of a Bank as fully as though it
were a Bank under Sections 1.13, 7.02, 7.03, 10.02(d) and 10.07 (subject to any
conditions imposed on a Bank hereunder with respect thereto, including delivery
of the forms and certificates required under Section 1.13(a)(iii)) and may
exercise any rights of set-off with respect to such participation as fully as
though the Loan Parties were directly indebted to the holder of such
participation for Loans in the amount of such participation; provided, however,
-------- -------
that no holder of a participation shall be entitled to any amounts that would
otherwise be payable to it with respect to its participation under Section 1.13
or 7.02 unless such amounts would have been payable to the Bank that granted
such participation if such participation had not been granted. In connection
with the sale of any participation hereunder, each participant (i) shall
represent to the granting Bank for the benefit of the Administrative Agent and
the Borrowers that under Applicable Law and treaties no Taxes (other than Bank
Taxes) will be required to be withheld by the Administrative Agent or any
Borrower with respect to any payments to be made with respect to such
participant under this Agreement, (ii) shall furnish to the granting Bank (which
Bank shall promptly forward to the Borrowers and the Administrative Agent) all
of the forms and statements required by Section 1.13(a)(iii), and (iii) shall
covenant to comply with all of the requirements of Section 1.13(a)(iii),
provided that any required forms and statements shall be provided to the
granting Bank, which Bank shall promptly forward such required forms and
statements to the Administrative Agent and the Borrowers. Notwithstanding the
above, in the event any Taxes are required to be withheld or deducted by any
taxing authority from any payment made to any participant, the Bank that grants
such participation shall (A) withhold or
-43-
deduct from each payment to the participant the amount of any Tax required under
applicable law to be withheld or deducted from such payment, and (B) pay any Tax
so withheld or deducted by it to the appropriate taxing authority in accordance
with Applicable Law. Each Bank selling or granting a participation shall
indemnify the Loan Parties and the Administrative Agent for any Taxes (including
without limitation, any interest, penalties, additions to tax and additional
amounts incurred in connection therewith) and Liabilities that they may sustain
as a result of such Bank's failure to withhold and pay any Taxes applicable to
payments by such Bank to its participant in respect of such participation.
Section 10.11 Governing Law.
-------------
The rights and duties of the Borrowers, the Guarantors, the Administrative
Agent and the Banks under this Agreement and the Notes shall, pursuant to New
York General Obligations Law, Section 5-1401, be governed by the law of the
State of New York.
Section 10.12 Judicial Proceedings; Waiver of Jury Trial.
------------------------------------------
Any judicial proceeding brought against a Borrower or any Guarantor with
respect to any Loan Document Related Claim may be brought in any court of
competent jurisdiction in the City of New York, and, by execution and delivery
of this Agreement, each of the Borrowers and the Guarantors (a) accepts,
generally and unconditionally, the nonexclusive jurisdiction of such courts and
any related appellate court and irrevocably agrees to be bound by any judgment
rendered thereby in connection with any Loan Document Related Claim and (b)
irrevocably waives any objection it may now or hereafter have as to the venue of
any such proceeding brought in such a court or that such a court is an
inconvenient forum. Each of the Borrowers and the Guarantors hereby waives
personal service of process and consents that service of process upon it may be
made by certified or registered mail, return receipt requested, at its address
specified or determined in accordance with the provisions of Section 10.01, and
service so made shall be deemed completed on the third Business Day after such
service is deposited in the mail so long as such service is also delivered to
Premiere by overnight courier. Nothing herein shall affect the right of any
Administrative Agent, any Bank or any other Indemnified Person to serve process
in any other manner permitted by law or shall limit the right of any
Administrative Agent, any Bank or any other Indemnified Person to bring
proceedings against a Borrower or any Guarantor in the courts of any other
jurisdiction. To the extent permitted in accordance with Applicable Law
relating to jurisdiction and venue, any judicial proceeding by a Borrower or any
Guarantor against the Administrative Agent or any Bank involving any Loan
Document Related Claim shall be brought only in a court located in the City and
State of New York. THE BORROWERS, THE GUARANTORS, THE ADMINISTRATIVE AGENT AND
EACH BANK HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY
LOAN DOCUMENT RELATED CLAIM.
Section 10.13 Reference Bank.
--------------
The Reference Bank shall furnish to the Administrative Agent timely
information for the purpose of determining the applicable Eurocurrency Rate. If
the Reference Bank shall notify the Administrative Agent that thenceforth it
shall not be able to furnish such information in a timely manner or shall assign
all of its Loans or Commitment to a Person that is not an Affiliate of the
Reference Bank, the Administrative Agent shall, with the consent of the Required
Banks and Premiere, appoint another Bank as the Reference Bank in place of such
Reference Bank.
-44-
Section 10.14 Severability of Provisions.
--------------------------
Any provision of the Loan Documents that is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions thereof or affecting the validity or enforceability of such provision
in any other jurisdiction. To the extent permitted by Applicable Law, each of
the Borrowers and the Guarantors hereby waives any provision of Applicable Law
that renders any provision of the Loan Documents prohibited or unenforceable in
any respect.
Section 10.15 Counterparts.
------------
This Agreement may be signed in any number of counterparts, each of which
shall be an original, with the same effect as if the signatures thereto were
upon the same instrument.
Section 10.16 Survival of Obligations.
-----------------------
Except as otherwise expressly provided therein, the rights and obligations
of the Borrowers, the Guarantors, the Administrative Agent, the Banks and the
other Indemnified Persons under the Loan Documents shall survive the Repayment
Date and the termination of the Security Interest.
Section 10.17 Entire Agreement.
----------------
This Agreement, the Notes and the other Loan Documents embody the entire
agreement among the Borrowers, the Guarantors, the Administrative Agent and the
Banks relating to the subject matter hereof and supersede all prior agreements,
representations and understandings, if any, relating to the subject matter
hereof.
Section 10.18 Successors and Assigns.
----------------------
All of the provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns.
Section 10.19 No Fiduciary Relationship Established by Loan Documents.
-------------------------------------------------------
The relationship between each Borrower and the Banks is that of debtor and
creditor. The Loan Documents are not intended to, and do not, establish a
fiduciary relationship, nor does a fiduciary relationship otherwise exist,
between the Loan Parties, on the one hand, and the Administrative Agent and the
Banks, on the other hand. The parties hereto have acted at arm's-length in
negotiating the Loan Documents.
Section 10.20 Judgment Currency.
-----------------
If in connection with determining the amount of a judgment to be rendered
in a currency (a "Judgment Currency") other than the currency in which the
-----------------
relevant amount was due under this Agreement or a Note, it is necessary to
convert a sum payable by a Borrower or any other Loan Party under this
Agreement, the Notes or any other Loan Document in a currency other than such
Judgment Currency into such Judgment Currency, then, unless another rate of
exchange is required under Applicable Law, the rate of exchange used shall be
the Administrative Agent's spot rate of exchange in New York City on the
Business Day preceding the day on which final judgment is to be rendered. The
obligations of the applicable Loan Party in respect of any such sum payable by
it under the Loan Documents in a currency other than such Judgment Currency
shall, notwithstanding any such judgment in such Judgment Currency, be
discharged only to the extent that on the Business Day following actual receipt
by the Administrative Agent or Banks of the amount of the judgment in such
Judgment Currency, such Person is able to purchase the relevant currency in New
York City with such sum of Judgment Currency, whether or not at the
Administrative Agent's spot rate of exchange. As a
-45-
separate obligation and notwithstanding any such judgment, the applicable Loan
Party shall pay such Person on demand in the relevant currency any difference
between the amount originally payable by such Loan Party to such Person in the
relevant currency and the amount of the relevant currency that may be so
purchased. In the event that the amount that may be so purchased exceeds the
amount originally payable, such Person shall promptly remit such excess to the
applicable Loan Party.
Section 10.21 Worldwide UK Security Agreement.
-------------------------------
Notwithstanding anything to the contrary in the Worldwide UK Security
Agreement, the Administrative Agent and the Banks hereby agree that no more than
65% (or such other percentage as is the maximum amount that can be subjected to
the Security Interest without, in the reasonable opinion of the Company,
resulting in any adverse tax consequence to the Company) of the shares of
capital stock of Xpedite UK pledged by Worldwide pursuant thereto shall secure
the liabilities of the Company or any Subsidiary that is a United States Person
under the Loan Documents.
ARTICLE 11
INTERPRETATION
--------------
Section 11.01 Defined Terms.
-------------
For the purposes of this Agreement:
"Accumulated Funding Deficiency" has the meaning ascribed to that term in
------------------------------
Section 302 of ERISA.
"Additional Sterling Cost" means, with respect to Eurocurrency Rate Loans
------------------------
made to Xpedite UK, for any Interest Period, the rate per annum for such
Interest Period determined in accordance with Schedule 11.01(c).
-----------------
"Administrative Agent" means The Bank of New York, as Administrative Agent
--------------------
for the Banks under the Loan Documents, and any successor Administrative Agent
appointed pursuant to Section 9.07.
"Administrative Agent's Office" means the address of the Administrative
-----------------------------
Agent specified in or determined in accordance with the provisions of Section
10.01.
"Affiliate" means, with respect to a Person, any other Person that,
---------
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person; unless
otherwise specified, "Affiliate" means an Affiliate of Premiere.
"Agents' Fee Letters" means the letter agreements providing for the payment
-------------------
of certain fees in connection with this Agreement among Premiere and the Company
and (i) The Bank of New York and BNY Capital Markets, Inc., and (ii)
NationsBank, N.A. and NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, respectively.
"Agreement" means this Credit Agreement, including all schedules, annexes
---------
and exhibits hereto.
-46-
"American Teleconferencing" means American Teleconferencing Services, Ltd.,
-------------------------
a Missouri corporation.
"Annualized Consolidated EBITDA" means, with respect to any Person, at any
------------------------------
time, Consolidated EBITDA of such Person for the fiscal quarter ending on, or
most recently ended prior to, such date of determination, times four; provided
--------
however, that any non-recurring cash charge included in such Consolidated EBITDA
-------
shall not be multiplied by four in determining Annualized Consolidated EBITDA
unless such annualization properly reflects the relevant circumstances in the
judgement of the Managing Agents.
"Applicable Law" means, anything in Section 10.11 to the contrary
--------------
notwithstanding, (a) all applicable common law and principles of equity and (b)
all applicable provisions of all (i) constitutions, statutes, rules, regulations
and orders of governmental bodies, (ii) Governmental Approvals and Governmental
Registrations and (iii) orders, decisions, judgments and decrees.
"Bank" means (a) any Person listed on the signature pages hereof following
----
the Administrative Agent and (b) any Person (other than the Borrower or any of
it's Affiliates) that has been assigned any or all of the rights or obligations
of a Bank pursuant to Section 10.10(a).
"Bank Tax" means any income (including net income), franchise, gains or
--------
profits Taxes (or similar Taxes imposed in lieu of such Taxes) that are imposed
by any taxing authority in any jurisdiction (including any political subdivision
thereof) in which the relevant Bank (or its Lending Office) or the
Administrative Agent (as the case may be) is organized, managed or controlled or
doing business or would not otherwise be subject to such Taxes but for a present
or former connection between such jurisdictions or the taxing authority imposing
such Taxes and the Bank or any Person affiliated with such Bank (including,
without limitation, a connection arising from such Bank or affiliated Person
being or having been a citizen or resident of such jurisdiction, or being or
having been, organized, present or engaged in a trade or business in such
jurisdiction, or having or having had a permanent establishment or fixed place
or business in such jurisdiction).
"Bankruptcy Code" means Title 11 of the United States Code.
---------------
"Base Financial Statements" means the most recent, audited, consolidated
-------------------------
balance sheet of Premiere and the Consolidated Subsidiaries referred to in
Section 5.02(a)(i) and the related statements of income, retained earnings and,
as applicable, changes in financial position or cash flows for the fiscal year
ended with the date of such balance sheet.
"Base Rate" means, for any day, a rate per annum equal to the higher of (i)
---------
the Prime Rate in effect on such day and (ii) the sum of the Federal Funds Rate
in effect on such day plus 1/2%.
----
"Base Rate Loan" means any Loan the interest on which is, or is to be, as
--------------
the context may require, computed on the basis of the Base Rate.
"Benefit Plan" of any Person, means, at any time, any employee benefit plan
------------
(including a Multiemployer Benefit Plan), the funding requirements of which
(under Section 302 of ERISA
-47-
or Section 412 of the Code) are, or at any time within six years immediately
preceding the time in question were, in whole or in part, the responsibility of
such Person.
"Borrower" has the meaning ascribed thereto in the preamble hereof.
--------
"Business Day" means any day other than a Saturday, Sunday or other day on
------------
which banks in New York City are authorized to close.
"Capital Expenditures" means any expenditures in respect of the purchase or
--------------------
other acquisition (by way of the acquisition of securities of a Person or
otherwise) of fixed or capital assets (excluding any such asset acquired in
connection with normal replacement and maintenance programs properly charged to
current operations or acquired with proceeds of insurance for the purpose of
replacement thereof) and excluding Investments to which Section 4.13 is by its
express terms inapplicable.
"Capital Security" means, with respect to any Person, (a) any share of
----------------
capital stock of such Person or (b) any security convertible into, or any
option, warrant or other right to acquire, any share of capital stock of such
Person.
"Code" means the Internal Revenue Code of 1986, as amended.
----
"Collateral" means all property in which a Lien is created pursuant to the
----------
Collateral Documents.
"Collateral Documents" means the Security Agreements, the UK Security
--------------------
Agreements and any other Loan Documents evidencing, governing or perfecting the
Security Interest.
"Commitment" of any Bank means (a) the amount set forth opposite such
----------
Bank's name under the heading "Commitment" on Annex A or, in the case of a Bank
that becomes a Bank pursuant to an assignment, the amount of the assignor's
Commitment assigned to such Bank, in either case, as the same may be reduced
from time to time pursuant to Section 1.07 or increased or reduced from time to
time pursuant to assignments in accordance with Section 10.10(a), or (b) as the
context may require, the obligation of such Bank to make Loans in an aggregate
unpaid principal amount not exceeding such amount.
"Commitment Termination Date" means the 364th day following the Restated
---------------------------
Agreement Date.
"Company" has the meaning ascribed thereto in the preamble hereof.
-------
"Consolidated EBITDA" means, with respect to any Person for any period, the
-------------------
sum of (a) Consolidated Net Income of such Person for such period and (b) to the
extent deducted in determining such Consolidated Net Income for such period,
interest expense, income tax expense, depreciation expense, amortization
expense, non-cash charges relating to Premiere's relationship with Digitek,
Premiere Network and WorldCom arising from write-offs and other non-cash
charges, if any, as agreed to by the Managing Agents. Notwithstanding the
foregoing, Consolidated EBITDA for any period shall be calculated after giving
effect on a pro forma basis for the period of such calculation to (x) the sale
or other disposition of any Subsidiary or of all or
-48-
substantially all of the assets of any Subsidiary during such period and up to
and including the date of determination (the "Reference Period") and (y) the
acquisition by Premiere or any Subsidiary during the Reference Period of any
other Person which, as a result of such acquisition, becomes a Subsidiary, or
the acquisition of assets during the Reference Period from any Person which
constitutes all or substantially all of an operating unit or business of such
Person, as if such sale or disposition or acquisition occurred on the first day
of the period of such calculation.
"Consolidated Indebtedness" means, with respect to any Person, at any time,
-------------------------
the consolidated Indebtedness of such Person and its Consolidated Subsidiaries
as of such time.
"Consolidated Net Income" means, with respect to any Person, for any
-----------------------
period, the amount of consolidated net income (or loss) of such Person and its
Consolidated Subsidiaries for such period (taken as a cumulative whole) provided
that there shall be excluded: (a) any net income (or net loss) of a
Consolidated Subsidiary (i) for any period during which it was not a
Consolidated Subsidiary or (ii), in case of any such net income, to the extent
that the declaration or payment of dividends or similar distributions by that
Consolidated Subsidiary is not at the time permitted by operation of the terms
of any Contract or Applicable Law; (b) any net income (or net loss) of any
Person (other than a Consolidated Subsidiary) in which such first Person or any
Consolidated Subsidiary has an ownership interest, except to the extent that any
such income has actually been received by such first Person or such Subsidiary
in the form of cash dividends or similar distributions or, in the case of any
Person not less than 50% of the Capital Securities or other ownership interests
of which is owned by such first Person or such Subsidiary, to the extent that
such first Person or such Subsidiary has the contractual right to cause such
Person to pay or declare such dividends or other distributions; (c) any
restoration of any contingency reserve, except to the extent that provision for
such reserve was made out of income during such period; (d) any net gains or
losses on the sale or other disposition of investments and other capital assets
other than in the ordinary course of business, provided that there shall also be
excluded any related charges for taxes thereon; (e) any net gains or losses
resulting from the extinguishment or defeasance of any Indebtedness; (f) any
earnings from discontinued businesses; (g) any extraordinary gains or losses;
(h) any interest income; and (i) all cash and non-cash nonrecurring charges or
gain related to an acquisition by such first Person and the Consolidated
Subsidiaries for such period and recorded on such first Person's consolidated
statements of operations.
"Consolidated Revenues" means, with respect to Premiere and the
---------------------
Subsidiaries, for any period, the consolidated revenue of Premiere and the
Subsidiaries for such period.
"Consolidated Subsidiary" means, with respect to any Person at any time,
-----------------------
any Subsidiary or other Person the accounts of which would be consolidated with
those of such first Person in its consolidated financial statements as of such
time; unless otherwise specified, "Consolidated Subsidiary" means a Consolidated
Subsidiary of Premiere.
"Contract" means (a) any agreement, including an indenture, lease or
--------
license, (b) any deed or other instrument of conveyance, (c) any certificate of
incorporation or charter and (d) any by-law.
-49-
"Default" means any condition or event that constitutes an Event of Default
-------
or that with the giving of notice or lapse of time or both would, unless cured
or waived, become an Event of Default.
"Disclosed Matters" means the facts and circumstances expressly disclosed
-----------------
in Premiere's filings with the Securities and Exchange Commission listed on
Schedule 11.01(b); provided, however, that material adverse developments
----------------- -------- -------
relating to any such facts or circumstances subsequent to such disclosure
thereof, or any ancillary effects thereof occurring subsequent to such
disclosure that could have a Material Adverse Effect on (x) Premiere and the
Consolidated Subsidiaries taken as a whole, (y) any Loan Document or (z) the
Collateral, shall not constitute Disclosed Matters.
"Dollar Equivalent" means, on any date, with respect to an amount of
-----------------
Sterling, the amount of Dollars that the Administrative Agent determines (which
determination shall be conclusive and binding absent manifest error) could then
be purchased by it, on a spot basis and in accordance with its customary banking
practices, with such amount of Sterling.
"Dollars" and the sign "$" mean lawful currency of the United States of
------- -
America.
"Domestic Lending Office" of any Bank means (a) the branch or office of
-----------------------
such Bank set forth below such Bank's name under the heading "Domestic Lending
Office" on Annex A or, in the case of a Bank that becomes a Bank pursuant to an
-------
assignment, the branch or office of such Bank set forth under the heading
"Domestic Lending Office" in the Notice of Assignment given to the Borrower and
the Administrative Agent with respect to such assignment or (b) such other
branch or office of such Bank designated by such Bank from time to time as the
branch or office at which its Base Rate Loans are to be made or maintained.
"Enacted", as applied to a Regulatory Change, means the date such
-------
Regulatory Change first becomes effective or is implemented or first required or
expected to be complied with, whether the same is the result of an enactment by
a government or any agency or political subdivision thereof, a determination of
a court or regulatory authority, or otherwise.
"ERISA" means the Employee Retirement Income Security Act of 1974.
-----
"ERISA Affiliate" means, with respect to any Person, any other Person,
---------------
including a Subsidiary or other Affiliate of such first Person, that is a member
of any group of organizations within the meaning of Code Sections 414(b), (c),
(m) or (o) of which such first Person is a member.
"Eurocurrency Business Day" means any Business Day on which dealings in
-------------------------
Dollar and Sterling deposits are carried on in the London interbank market and
on which commercial banks are open for domestic and international business
(including dealings in Dollar and Sterling deposits) in London, England.
"Eurocurrency Lending Office" of any Bank means (a) the branch or office of
---------------------------
such Bank set forth below such Bank's name under the heading "Eurocurrency
Lending Office" on Annex A or, in the case of a Bank that becomes a Bank
-------
pursuant to an assignment, the branch or office of such Bank set forth under the
heading "Eurocurrency Lending Office" in the Notice of
-50-
Assignment given to the Borrower and the Administrative Agent with respect to
such assignment or (b) such other branch or office of such Bank designated by
such Bank from time to time as the branch or office at which its Eurocurrency
Rate Loans are to be made or maintained.
"Eurocurrency Rate" means, for any Interest Period, the sum of (i) the rate
-----------------
per annum determined by the Administrative Agent to be the rate per annum
(rounded upward, if necessary, to the next higher 1/16 of 1%) at which the
Reference Bank offered or would have offered to place with first-class banks in
the London interbank market deposits in Dollars or Sterling, as the case may be,
in amounts comparable to the Eurocurrency Rate Loan of the Reference Bank to
which such Interest Period applies, for a period equal to such Interest Period,
at 11:00 a.m. (London time) on the second Eurocurrency Business Day (or such
other day as is customary for eurocurrency loans denominated in Sterling) before
the first day of such Interest Period plus (ii) in the case of Eurocurrency Rate
----
Loans made to Xpedite UK, the Additional Sterling Cost for such Interest Period.
"Eurocurrency Rate Loan" means any Loan the interest on which is, or is to
----------------------
be, as the context may require, computed on the basis of the Eurocurrency Rate.
"Event of Default" means any of the events specified in Section 6.01.
----------------
"Existing Benefit Plan" means any Benefit Plan listed on Schedule 4.15.
--------------------- -------------
"Existing Guaranty" means (a) any Guaranty outstanding on the Restated
-----------------
Agreement Date, to the extent set forth on Schedule 4.06, and (b) any Guaranty
-------------
that constitutes a renewal, extension or replacement of an Existing Guaranty,
but only if (i) at the time such Guaranty is entered into and immediately after
giving effect thereto, no Default would exist, (ii) such Guaranty is binding
only on the obligor or obligors under the Guaranty so renewed, extended or
replaced, (iii) the principal amount of the obligations Guaranteed by such
Guaranty does not exceed the principal amount of the obligations Guaranteed by
the Guaranty so renewed, extended or replaced at the time of such renewal,
extension or replacement and (iv) the obligations Guaranteed by such Guaranty
bear interest at a rate per annum not exceeding the rate borne by the
obligations Guaranteed by the Guaranty so renewed, extended or replaced except
for any increase that is commercially reasonable at the time of such increase.
"Existing Indebtedness" means (a) any Indebtedness of Premiere or any
---------------------
Subsidiary outstanding on the Restated Agreement Date, to the extent set forth
on Schedule 4.05, and (b) any Indebtedness of Premiere or such Subsidiary
-------------
constituting a renewal, extension or refunding of any Existing Indebtedness of
Premiere or such Subsidiary, but only if (i) at the time such Indebtedness is
incurred and immediately after giving effect thereto, no Default would exist,
(ii) the principal amount of such Indebtedness does not exceed the principal
amount of the Indebtedness so renewed, extended or refunded (plus accrued
interest, fees and transaction costs) and (iii) such Indebtedness bears interest
at a rate per annum not exceeding the rate borne by the Indebtedness so renewed,
extended or refunded except for any increase that is commercially reasonable at
the time such Indebtedness is incurred.
"Federal Funds Rate" means, for any day, the weighted average of the rates
------------------
on overnight Federal funds transactions with members of the Federal
-51-
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York or, if such rate is not so published for any
day that is a Business Day, the average of quotations for such day on such
transactions received by The Bank of New York from three Federal funds brokers
of recognized standing selected by such bank.
"Generally Accepted Accounting Principles" means (a) in the case of the
----------------------------------------
Base Financial Statements, generally accepted accounting principles at the time
of the issuance of the Base Financial Statements and (b) in all other cases, the
accounting principles followed in the preparation of the Base Financial
Statements.
"Governmental Approval" means any authority, consent, approval, license (or
---------------------
the like) or exemption (or the like) of any governmental unit.
"Governmental Registration" means any registration or filing (or the like)
-------------------------
with, or report or notice (or the like) to, any governmental unit.
"Guaranteed Obligations" means all Liabilities of the Borrowers and the
----------------------
other Loan Parties (including in its capacity as a "debtor in possession" under
the Bankruptcy Code) due or owing to, or in favor or for the benefit of, the
Guaranteed Parties under the Loan Documents, of every kind, nature and
description, direct or indirect, absolute or contingent, due or not due, now
existing or hereafter arising, and whether or not (a) due or owing to, or in
favor or for the benefit of, Persons that are Guaranteed Parties as of the
Restated Agreement Date or that become Guaranteed Parties by reason of any
succession or assignment at any time thereafter, (b) ARISING OR ACCRUING BEFORE
OR AFTER THE FILING BY OR AGAINST ANY LOAN PARTY OF A PETITION UNDER THE
BANKRUPTCY CODE OR (c) ALLOWABLE UNDER SECTION 502(b)(2) OF THE BANKRUPTCY CODE;
provided, however, that (i) the Guaranteed Obligations of the Company in its
-------- -------
capacity as a Guarantor shall not include any of such Liabilities of the Company
in its capacity as a Borrower and (ii) solely with respect to the obligations of
XSL as a Guarantor hereunder or any other Guarantor that is not a United States
Person, Guaranteed Obligations shall not include any such Liabilities of the
Company or any Subsidiary that is a United States Person under the Loan
Documents.
"Guaranteed Parties" means all Persons that are, or at any time were, the
------------------
Administrative Agent, or a Bank.
"Guarantor" means Premiere, the Company, all Subsidiaries listed on
---------
Schedule 11.01(a) and all Subsidiaries that shall have executed and delivered a
-----------------
Subsidiary Guaranty Supplement pursuant to Section 4.03 at any time after the
Restated Agreement Date.
"Guaranty" of any Person means any obligation, contingent or otherwise, of
--------
such Person (a) to pay any Liability of any other Person or to otherwise
protect, or having the practical effect of protecting, the holder of any such
Liability against loss (whether such obligation arises by virtue of such Person
being a partner of a partnership or participant in a joint venture or by
agreement to pay, to keep well, to purchase assets, goods, securities or
services or to take or pay, or otherwise) or (b) incurred in connection with the
issuance by a third Person of a Guaranty of any Liability of any other Person
(whether such obligation arises by agreement to reimburse or
-52-
indemnify such third Person or otherwise). The word "Guarantee" when used as a
---------
verb has the correlative meaning.
"Indebtedness" of any Person means (a) any obligation of such Person for
------------
borrowed money, (b) any obligation of such Person evidenced by a bond,
debenture, note or other similar instrument, (c) any obligation of such Person
to pay the deferred purchase price of property or services, except a trade
account payable that arises in the ordinary course of business, (d) any
obligation of such Person as lessee under a capital lease, (e) any Mandatorily
Redeemable Stock of such Person, (f) any obligation of such Person to purchase
securities or other property that arises out of or in connection with the sale
of the same or substantially similar securities or property, (g) any obligation,
whether or not contingent, of such Person to reimburse any other Person in
respect of amounts paid under a letter of credit or other Guaranty issued by
such other Person, (h) any Indebtedness of others secured by a Lien on any asset
of such Person and (i) any Indebtedness of others Guaranteed by such Person.
"Indemnified Person" means any Person that is, or at any time was, the
------------------
Administrative Agent, a Bank, an Affiliate of the Administrative Agent or a Bank
or a director, officer, employee or Administrative Agent of any such Person.
"Information" means data, certificates, reports, statements (including
-----------
financial statements), documents and other information.
"Intellectual Property" means (a) (i) patents and patent rights, (ii)
---------------------
trademarks, trademark rights, trade names, trade name rights, corporate names,
business names, trade styles, service marks, logos and general intangibles of
like nature and (iii) copyrights, in each case whether registered, unregistered
or under pending registration and, in the case of any such that are registered
or under pending registration, whether registered or under pending registration
under the laws of the United States or any other country, (b) reissues,
continuations, continuations-in-part and extensions of any Intellectual Property
referred to in clause (a), and (c) rights relating to any Intellectual Property
referred to in clause (a) or (b), including rights under applications (whether
pending under the laws of the United States or any other country) or licenses
relating thereto.
"Intercompany Indebtedness" means Indebtedness owed by Premiere or any
-------------------------
other Guarantor to Premiere or any other Guarantor.
"Interest Expense" means, with respect to any Person, for any period,
----------------
without duplication, the sum of all interest expense of such Person and its
Consolidated Subsidiaries.
"Interest Payment Date" means the last day of each month of each year.
---------------------
"Interest Period" means a period commencing, in the case of the first
---------------
Interest Period applicable to a Eurocurrency Rate Loan, on the date of the
making of, or conversion into, such Loan, and, in the case of each subsequent,
successive Interest Period applicable thereto, on the last day of the
immediately preceding Interest Period, and ending, depending on the Type of
Loan, on the same day, so long as such day is not later than the Commitment
Termination Date, in the first, second, third or sixth calendar month thereafter
or, in the case of Eurocurrency Rate Loans made to Xpedite UK, or made
previously and which have an Interest Period ending, on
-53-
any day that is less than one month prior to the Commitment Termination Date,
ending on the Commitment Termination Date, except that (a) any Interest Period
that would otherwise end on a day that is not a Eurocurrency Business Day shall
be extended to the next succeeding Eurocurrency Business Day unless such
Eurocurrency Business Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Eurocurrency Business Day and
(b) any Interest Period that begins on the last Eurocurrency Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month in which such Interest Period ends) shall end on the last
Eurocurrency Business Day of a calendar month.
"Investment" of any Person means (a) any Capital Security, evidence of
----------
Indebtedness or other security or instrument issued by any other Person or (b)
any loan, advance or extension of credit to, or any contribution to the capital
of, any other Person.
"Lending Office" of any Bank means the Domestic Lending Office or the
--------------
Eurocurrency Lending Office of such Bank.
"Liability" of any Person means (in each case, whether with full or limited
---------
recourse) any indebtedness, liability, obligation, covenant or duty of or
binding upon, or any term or condition to be observed by or binding upon, such
Person or any of its assets, of any kind, nature or description, direct or
indirect, absolute or contingent, due or not due, contractual or tortious,
liquidated or unliquidated, whether arising under Contract, Applicable Law, or
otherwise, whether now existing or hereafter arising, and whether for the
payment of money or the performance or non-performance of any act.
"Lien" means, with respect to any property or asset (or any income or
----
profits therefrom) of any Person (in each case whether the same is consensual or
nonconsensual or arises by Contract, operation of law, legal process or
otherwise), any mortgage, lien, pledge, attachment, levy or other security
interest of any kind thereupon or in respect thereof. For the purposes of this
Agreement, a Person shall be deemed to own subject to a Lien any asset that 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" means any amount advanced by a Bank pursuant to Section 1.01.
----
"Loan Document Related Claim" means any claim or dispute (whether arising
---------------------------
under Applicable Law, including any "environmental" or similar law, under
Contract or otherwise and, in the case of any proceeding relating to any such
claim or dispute, whether civil, criminal, administrative or otherwise) in any
way arising out of, related to, or connected with, the Loan Documents, the
relationships established thereunder or any actions or conduct thereunder or
with respect thereto, whether such claim or dispute arises or is asserted before
or after the Restated Agreement Date or before or after the Repayment Date.
"Loan Document Representation and Warranty" means any "Representation and
-----------------------------------------
Warranty" as defined in any Loan Document and any other representation or
warranty made or deemed made under any Loan Document.
-54-
"Loan Documents" means (a) this Agreement, the Notes, the Security
--------------
Agreements and the UK Security Agreements and (b) all other agreements,
documents and instruments executed or delivered under or in connection with (i)
any agreement, document or instrument referred to in clause (a), (ii) any other
agreement, document or instrument referred to in this clause (b) or (iii) any of
the transactions contemplated by any agreement, document or instrument referred
to in clause (a) or in this clause (b).
"Loan Party" means any Person (other than the Administrative Agent or a
----------
Bank) that is a party to a Loan Document.
"Managing Agents" means The Bank of New York and NationsBank, N.A.
---------------
"Mandatorily Redeemable Stock" means, with respect to any Person, any share
----------------------------
of such Person's capital stock to the extent that it is (a) redeemable, payable
or required to be purchased or otherwise retired or extinguished, or convertible
into any Indebtedness or other Liability of such Person, (i) at a fixed or
determinable date, whether by operation of a sinking fund or otherwise, (ii) at
the option of any Person other than such Person or (iii) upon the occurrence of
a condition not solely within the control of such Person, such as a redemption
required to be made out of future earnings or (b) convertible into Mandatorily
Redeemable Stock.
"Materially Adverse Effect" means, (a) with respect to a group of Persons
-------------------------
"taken as a whole", any materially adverse effect on such Persons' business,
assets, Liabilities, financial conditions, results of operations or business
prospects taken as a whole on a consolidated basis in accordance with Generally
Accepted Accounting Principles, (b) with respect to any Loan Document, any
materially adverse effect, on the binding nature, validity or enforceability
thereof as an obligation of any Loan Party that is a party thereto and (c) with
respect to any Collateral, or any category of Collateral, pledged by any Loan
Party, a materially adverse effect on the validity, perfection, priority or
enforceability of the Security Interest therein.
"Maximum Permissible Rate" means, with respect to interest payable on any
------------------------
amount, the rate of interest on such amount that, if exceeded, could, under
Applicable Law, result in (a) civil or criminal penalties being imposed on the
payee or (b) the payee's being unable to enforce payment of (or, if collected,
to retain) all or any part of such amount or the interest payable thereon.
"Money Market Investment" means (a) any security issued or directly and
-----------------------
fully guaranteed or insured by the United States government or any agency or
instrumentality thereof having a remaining maturity of not more than one year,
(b) any certificate of deposit, eurodollar time deposit and bankers' acceptance
with remaining maturity of not more than one year, any overnight bank deposit,
and any demand deposit account, in each case with any Bank or with any United
States or United Kingdom commercial bank having capital and surplus in excess of
$500,000,000 or (Pounds)500,000,000, (c) any repurchase obligation with a term
of not more than seven days for underlying securities of the types described in
clauses (a) and (b) above entered into with any financial institution meeting
the qualifications specified in clause (b) above, (d) any commercial paper
issued by any Bank or the parent corporation of any Bank and any other
commercial paper rated A-1 or higher by Standard & Poor's, a division of the
McGraw Hill Companies, Inc., or Prime-1 by ▇▇▇▇▇'▇ Investors Service, Inc. and
in any case having a
-55-
remaining maturity of not more than one year, (e) any money market fund that
invests solely in any or all of the Money Market Investments described in
clauses (a) through (d) of this definition and (f) foreign currency investments
of credit quality similar to the foregoing by any Subsidiary that is not a
United States Person made in the ordinary course of business and reasonably
related to the business needs of such Subsidiary.
"Multiemployer Benefit Plan" means any Benefit Plan that is a multiemployer
--------------------------
plan as defined in Section 4001(a)(3) of ERISA.
"Net Consolidated Indebtedness" means, at any time, Consolidated
-----------------------------
Indebtedness of Premiere at such time less the amount of cash and cash-
equivalents owned and held by Premiere and the Consolidated Subsidiaries at such
time in excess of $10,000,000.
"Net Proceeds" means proceeds received by Premiere or any of its
------------
Subsidiaries in cash from the sale or other disposition of any investment
security in any calendar year permitted pursuant to Section 4.09(d)(i), net of
the amount of (i) brokers' and advisors' fees and commissions payable in
connection with such sale or other disposition, (ii) all Federal, state and
local taxes payable as a direct consequence of such sale or other disposition
and (iii) the fees and expenses attributable to such sale or other disposition,
to the extent not included in clause (i), except to the extent payable to any
Affiliate of Premiere.
"Note" means any promissory note in the form of Exhibit A.
---- ---------
"Notice of Assignment" means any notice to the Borrowers and the
--------------------
Administrative Agent with respect to an assignment pursuant to Section 10.10(a)
in the form of Schedule 10.10(a).
-----------------
"PBGC" means the Pension Benefit Guaranty Corporation.
----
"Permitted Guaranty" means any Guaranty that is (a) an endorsement for
------------------
deposit or collection in the ordinary course of business, (b) a Guaranty of and
only of the obligations of the Loan Parties under the Loan Documents, (c) a
Guaranty of obligations of Premiere or any Subsidiary not constituting
Indebtedness of such Person and not otherwise prohibited by this Agreement, (d)
a Guaranty of Indebtedness permitted pursuant to Section 4.05 (other than
Premiere's 5-3/4% Convertible Subordinated Notes due 2004) or (e) Guaranties by
Premiere of obligations and Indebtedness of its Subsidiaries (including real
property leases and other ordinary course obligations) not prohibited to be
incurred hereunder.
"Permitted Lien" means (a) with respect to any asset that does not
--------------
constitute Collateral, (i) any Lien existing on the Restated Agreement Date, to
the extent set forth on Schedule 4.07; (ii) any Lien existing on any asset of
--------------
any Person at the time such Person becomes a Subsidiary or on any asset at the
time such asset is acquired by Premiere or a Subsidiary, but only, in either
case, if such Lien was not created in contemplation of such Person becoming a
Subsidiary or such asset being acquired and such Lien secures only the
obligation secured thereby at the time such Person becomes a Subsidiary or such
asset is acquired; (iii) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring
such asset, provided that such Lien attaches to such asset concurrently with or
--------
within 30 days after the acquisition thereof; (iv) any Lien arising out of the
refinancing, extension, renewal or refunding of any Liability secured by any
Lien permitted by any of the foregoing
-56-
clauses of this Section, provided that such Liability is not increased and is
--------
not secured by any additional assets; (v) Liens on the assets of Premiere or any
Subsidiary incidental to conduct of its business or the ownership of its assets
that do not secure Indebtedness; (vi) any Lien securing and only securing the
obligations of the Loan Parties under the Loan Documents; (vii) Liens securing
Indebtedness of Premiere or any Subsidiary under a capital lease to the extent
that such Liens attach solely to the assets subject to such capital lease or
acquired with the proceeds of such Indebtedness; (viii) other Liens securing
Indebtedness of Premiere and its Subsidiaries not prohibited by this Agreement
in an aggregate principal amount outstanding at any time not in excess of
$1,000,000 and (b) with respect to any asset that constitutes Collateral, any
Lien that constitutes a "Permitted Lien" under the applicable Security Agreement
or UK Security Agreements; and (ix) any Liens for Taxes which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with Generally Accepted Accounting
Principles.
"Permitted Restrictive Covenants" means (a) any covenant or restriction
-------------------------------
contained in any Loan Document, (b) any covenant or restriction described in
Schedule 4.11, but only to the extent that such covenant or restriction is there
-------------
identified by specific reference to the provision of the Contract in which such
covenant or restriction is contained, or (c) any covenant or restriction that
(i) is not more burdensome than an existing Permitted Restrictive Covenant that
is such by virtue of clause (b), (ii) is contained in a Contract constituting a
renewal, extension or replacement of the Contract in which such existing
Permitted Restrictive Covenant is contained and (iii) is binding only on the
Person or Persons bound by such existing Permitted Restrictive Covenant.
"Person" means any individual, sole proprietorship, corporation,
------
partnership, limited liability company, trust, unincorporated organization,
mutual company, joint stock company, estate, union, employee organization,
government or any agency or political subdivision thereof or, for the purpose of
the definition of "ERISA Affiliate", any trade or business.
"Post-Default Rate" means the rate otherwise applicable under Section
-----------------
1.03(a)(i) plus 2.00%.
"Premiere" means Premiere Technologies, Inc., a Georgia corporation.
--------
"Premiere Communications" means Premiere Communications, Inc., a Florida
-----------------------
corporation.
"Premiere Interest Coverage Ratio" means, at any time, the ratio of (x)
--------------------------------
Consolidated EBITDA of Premiere for the fiscal quarter of Premiere ending on, or
most recently ended prior to, such date of determination to (y) Interest Expense
of Premiere minus interest income and minus, to the extent included in Interest
----- -----
Expense, amortization of financing costs of Premiere and the Consolidated
Subsidiaries for such period.
"Premiere Leverage Ratio" means, at any time, the ratio of Net Consolidated
-----------------------
Indebtedness of Premiere at such time to Annualized Consolidated EBITDA of
Premiere at such time.
-57-
"Prime Rate" means the prime commercial lending rate of The Bank of New
----------
York, as publicly announced to be in effect from time to time. The Prime Rate
shall be adjusted automatically, without notice, on the effective date of any
change in such prime commercial lending rate. The Prime Rate is not necessarily
The Bank of New York's lowest rate of interest.
"Prohibited Transaction" means any transaction that is prohibited under
----------------------
Code Section 4975 or ERISA Section 406 and not exempt under Code Section 4975 or
ERISA Section 408.
"Purchase Money Indebtedness" means (a) Indebtedness that is incurred to
---------------------------
finance part or all of (but not more than) the purchase price of a tangible
asset, provided that (i) neither Premiere nor any Subsidiary had at any time
--------
prior to such purchase any interest in such asset other than a security interest
or an interest as lessee under an operating lease and (ii) such Indebtedness is
incurred within 30 days after such purchase, or (b) Indebtedness that (i)
constitutes a renewal, extension or refunding of, but not an increase in the
principal amount of, Purchase Money Indebtedness that is such by virtue of
clause (a) or (b) and (ii) bears interest at a rate per annum that is
commercially reasonable at the time such Indebtedness is incurred.
"Quarterly Date" means the last day of each March, June, September and
--------------
December of each year.
"Reference Bank" means The Bank of New York and any replacement Reference
--------------
Bank appointed pursuant to Section 10.13.
"Regulation D" means Regulation D of the Board of Governors of the Federal
------------
Reserve System.
"Regulation U" means Regulation U of the Board of Governors of the Federal
------------
Reserve System.
"Regulatory Change" means any Applicable Law, interpretation, directive,
-----------------
request or guideline (whether or not having the force of law), or any change
therein or in the administration or enforcement thereof, that is Enacted after
the Restated Agreement Date, including any such that imposes, increases or
modifies any Tax, reserve requirement, insurance charge, special deposit
requirement, assessment or capital adequacy requirement, but excluding any such
that imposes, increases or modifies any Bank Tax.
"Repayment Date" means the later of (a) the termination of the Commitments
--------------
(whether as a result of the occurrence of the Commitment Termination Date,
reduction to zero pursuant to Section 1.07 or termination pursuant to Section
6.02) and (b) the payment in full of all principal of and interest on the Loans
and all other amounts payable or accrued hereunder.
"Reportable Event" means, with respect to any Benefit Plan of any Person,
----------------
(a) the occurrence of any of the events set forth in ERISA Sections 4043(c),
other than an event as to which the requirement of 30 days' notice, or the
penalty for failure to provide such notice, has been waived by the PBGC, (b) the
existence of conditions sufficient to require advance notice to the PBGC
pursuant to ERISA Section 4043(b), (c) the occurrence of any of the events set
forth in ERISA Sections 4062(e) or 4063(a) or the regulations thereunder, (d)
any event requiring such Person or any of its ERISA Affiliates to provide
security to such Benefit Plan under Code
-58-
Section 401(a)(29) or (e) any failure to make a payment required by Code Section
412(m) with respect to such Benefit Plan.
"Representation and Warranty" means any representation or warranty made
---------------------------
pursuant to or under (a) Section 2.02, Article 3, Section 5.02 or any other
provision of this Agreement or (b) any amendment to, or waiver of rights under,
this Agreement.
"Required Banks" means, at any time, Banks having more than 75% of the
--------------
aggregate amount of the Commitments or, if the Commitments shall have expired or
been terminated, Banks having more than 75% of the aggregate amount of the Loans
outstanding.
"Restated Agreement Date" means the date set forth as such on the signature
-----------------------
pages hereof, which date is the date the executed copies of this Agreement, as
amended and restated, were delivered by all parties hereto and, accordingly,
this Agreement, as amended and restated, became effective. If no such date is
there set forth, the Restated Agreement Date shall be the date as of which this
Agreement is dated.
"Restricted Payment" means (a) any payment with respect to or on account of
------------------
any of Premiere's or any Subsidiary's Capital Securities, including any dividend
or other distribution on any such Capital Securities or (b) any payment on
account of any purchase, redemption, retirement, exchange, defeasance or
conversion of, or on account of any claim relating to or arising out of the
offer, sale or purchase of, any such Capital Security, other than any such
payment with respect to Premiere's 5-3/4% Convertible Subordinated Notes due
2004 required to be made in accordance with the terms thereof as in effect on
the Restated Agreement Date. For the purposes of this definition, a "payment"
shall include the transfer of any asset or the incurrence of any Indebtedness or
other Liability (the amount of any such payment to be the fair market value of
such asset or the amount of such obligation, respectively) but shall not include
the issuance of any capital stock of Premiere or any Subsidiary other than
Mandatorily Redeemable Stock.
"Secured Party" has the meaning ascribed to such term in the Security
-------------
Agreements and to the term "Agent" in the UK Security Agreements and to any
analogous term in any other security agreement executed and delivered pursuant
to Section 4.03(iii).
"Security Agreements" means collectively (a) each of the Security
-------------------
Agreements between Premiere and the Administrative Agent, American
Teleconferencing and the Administrative Agent, Voice-Tel and the Administrative
Agent, Worldwide and the Administrative Agent and the Company and the
Administrative Agent, in each case in substantially the form of Exhibit B and
---------
(b) any other security agreement entered into by a Significant Subsidiary and
the Administrative Agent pursuant to Section 4.03, in each case in substantially
the form of Exhibit B.
---------
"Security Interest" means the Liens created, or purported to be created, by
-----------------
the Loan Documents.
"Significant Subsidiary" means, at any time, any Subsidiary whose assets
----------------------
(after elimination of intercompany items) equal or exceed [5%] of the total
consolidated assets of Premiere and the Consolidated Subsidiaries, or whose
revenues (after elimination of
-59-
intercompany items) equal or exceed [5%] of the total consolidated revenues of
Premiere and the Consolidated Subsidiaries, in each case as shown on the most
recent financial statements of Premiere and its Consolidated Subsidiaries
furnished to the Banks pursuant to Section 5.01.
"Sterling" and the sign "(Pounds)" mean lawful currency of the United
-------- --------
Kingdom.
"Sterling Sub-limit" means $70,000,000, as such amount may be decreased
------------------
from time to time pursuant to Section 1.07.
"Subsidiary" means, with respect to any Person, any other Person (a)
----------
securities of which having ordinary voting power to elect a majority of the
board of directors (or other persons having similar functions) or (b) other
ownership interests of which ordinarily constituting a majority voting interest,
are at the time, directly or indirectly, owned or controlled by such first
Person, or by one or more of its Subsidiaries, or by such first Person and one
or more of its Subsidiaries; unless otherwise specified, "Subsidiary" means a
Subsidiary of Premiere.
"Tax" means any Federal, State or foreign tax, assessment or other
---
governmental charge (including any withholding tax) upon a Person or upon its
assets, revenues, income or profits.
"Termination Event" means, with respect to any Benefit Plan, (a) any
-----------------
Reportable Event with respect to such Benefit Plan, (b) the termination of such
Benefit Plan, or the filing of a notice of intent to terminate such Benefit
Plan, or the treatment of any amendment to such Benefit Plan as a termination
under ERISA Section 4041(c), (c) the institution of proceedings to terminate
such Benefit Plan under ERISA Section 4042 or (d) the appointment of a trustee
to administer such Benefit Plan under ERISA Section 4042.
"Type" means, with respect to Loans, any of the following, each of which
----
shall be deemed to be a different "Type" of Loan: Base Rate Loans, Eurocurrency
Rate Loans having a one-month Interest Period, Eurocurrency Rate Loans having a
two-month Interest Period, Eurocurrency Rate Loans having a three-month Interest
Period, and Eurocurrency Rate Loans having a six-month Interest Period. Any
Eurocurrency Rate Loan having an Interest Period that differs from the duration
specified for a Type of Eurocurrency Rate Loan listed above solely as a result
of the operation of clauses (a) and (b) of the definition of "Interest Period"
shall be deemed to be a Loan of such above-listed Type notwithstanding such
difference in duration of Interest Periods.
"UK Security Agreements" means collectively (a) the Worldwide UK Security
----------------------
Agreement, (b) the Xpedite UK Security Agreement, (c) the XSL Security Agreement
and (d) any other security agreement entered into by a Subsidiary of Xpedite UK
that is a Significant Subsidiary and the Administrative Agent pursuant to
Section 4.03, in each case in substantially the form of Exhibit E.
---------
"United States Person" means a corporation, partnership or other entity
--------------------
created, organized or incorporated under the laws of the United States of
America or a State thereof (including the District of Columbia).
"VoiceCom" means VoiceCom Systems, Inc., a Washington corporation.
--------
-60-
"Voice-Tel" means Voice-Tel Enterprises, Inc., a Delaware corporation.
---------
"Worldwide" means Xpedite Systems Worldwide, Inc.
---------
"Worldwide UK Security Agreement" means the Deed of Charge over Shares and
-------------------------------
Securities dated December 17, 1997 between Worldwide, as Chargor, and The Bank
of New York, as Agent.
"Xpedite Interest Coverage Ratio" means, at any time, the ratio of (x)
-------------------------------
Consolidated EBITDA for the fiscal quarter of the Company ending on, or most
recently ended prior to, such date of determination to (y) Interest Expense of
the Company minus interest income and minus, to the extent included in Interest
----- -----
Expense, amortization of financing costs of the Company and its Consolidated
Subsidiaries for such period.
"Xpedite Leverage Ratio" means, at any time, the ratio of Consolidated
----------------------
Indebtedness of Xpedite at such time to Annualized Consolidated EBITDA of
Xpedite at such time.
"Xpedite UK" has the meaning ascribed thereto in the preamble hereto.
----------
"Xpedite UK Security Agreement" means the Fixed and Floating Charge dated
-----------------------------
December 17, 1997 between Xpedite UK and The Bank of New York, as Agent.
"XSL" means Xpedite Systems Limited., an English corporation.
---
"XSL Security Agreement" means the Fixed and Floating Charge dated December
----------------------
17, 1997 between XSL and The Bank of New York, as Agent.
Section 11.02 Other Interpretive Provisions.
-----------------------------
(a) Except as otherwise specified herein, all references herein or in
any other Loan Document (i) to any Person shall be deemed to include such
Person's successors and assigns, (ii) to any Applicable Law defined or referred
to herein shall be deemed references to such Applicable Law or any successor
Applicable Law as the same may have been or may be amended or supplemented from
time to time and (iii) to any Loan Document or Contract defined or referred to
herein shall be deemed references to such Loan Document or Contract (and, in the
case of any Note or any other instrument, any instrument issued in substitution
therefor) as the terms thereof may have been or may be amended, supplemented,
waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Annex", "Schedule" and "Exhibit" shall refer to Articles and Sections of, and
Annexes, Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
-61-
(d) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are "included", such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are "included" are limited to such items or to items similar
to such items.
(e) Except as otherwise specified herein, all references herein to the
Agent, any Bank or any Loan Party shall be deemed to refer to such Person
however designated in Loan Documents, so that (i) a reference to rights or
duties of the Administrative Agent under the Loan Documents shall be deemed to
include the rights or duties of such Person as the Security Party under the
Security Agreements and the UK Security Agreements, (ii) a reference to costs
incurred by a Bank in connection with the Loan Documents shall be deemed to
include costs incurred by such Person as a Principal under (and as defined in)
the Security Agreements and the UK Security Agreements, and (iii) a reference to
the obligations of the Borrowers or any other Loan Party under the Loan
Documents shall be deemed to include the obligations of such Person in any
capacity under the Loan Documents.
Section 11.03 Accounting Matters.
------------------
All accounting determinations hereunder and all computations utilized by
Premiere or the Company in complying with the covenants contained herein shall
be made, all accounting terms used herein shall be interpreted, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with Generally Accepted Accounting Principles, except, in the case of
such financial statements, for changes in Generally Accepted Accounting
Principles that may from time to time be approved by a significant segment of
the accounting profession.
Section 11.04 Representations and Warranties.
------------------------------
All Representations and Warranties shall be deemed made (a) in the case of
any Representations and Warranties contained in this Agreement at the time of
its initial execution and delivery, at and as of the Restated Agreement Date and
(b) in the case of any particular Representation and Warranty, wherever
contained, at such other time or times as such Representation and Warranty is
made or deemed made in accordance with the provisions of this Agreement or the
document pursuant to, under or in connection with which such Representation and
Warranty is made or deemed made.
Section 11.05 Captions.
--------
Captions to Articles, Sections and subsections of, and Annexes, Schedules
and Exhibits to, this Agreement are included for convenience of reference only
and shall not constitute a part of this Agreement for any other purpose or in
any way affect the meaning or construction of any provision of this Agreement.
Section 11.06 Interpretation and Related Documents.
------------------------------------
Except as otherwise specified therein, terms that are defined herein that
are used in Notes, certificates, opinions and other documents delivered in
connection herewith shall have the meanings ascribed to them herein and such
documents shall be otherwise interpreted in accordance with the provisions of
this Article 11.
Section 11.07 Undertaking by Premiere.
------------------------
Notwithstanding the provisions of Section 2.01(a) hereto, the amendment and
restatement of this Agreement as of the Restated Agreement
-62-
Date shall be effective notwithstanding that the Administrative Agent shall not
have received the following, and Premiere agrees to deliver or cause to be
delivered each of the following to the Administrative Agent, no later than the
date that is, in the case of items (i) and (ii) below, 30 days and, in the case
of item (iii) below, 10 days, after the Restated Agreement Date:
(i) opinions of local counsel for the Loan Parties in Florida,
Missouri, Washington and each other state, if any, in which the chief
executive office of any Loan Party or any substantial portion of Collateral
is located or deemed located, in form and substance reasonably satisfactory
to the Managing Agents;
(ii) Uniform Commercial Code, tax and judgement lien searches for
each of the Loan Parties that are United States Persons, in such
jurisdictions as shall have been reasonably requested by the Administrative
Agent; and
(iii) the items referred to in Section 2.01(a)(x).
-63-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized officers all as of the Restated Agreement
Date.
PREMIERE TECHNOLOGIES, INC.
By /s/
------------------------------------
Name:
Title:
XPEDITE SYSTEMS, INC.
By /s/
------------------------------------
Name:
Title:
XPEDITE SYSTEMS HOLDINGS (UK) LIMITED
By /s/
------------------------------------
Name:
Title:
XPEDITE SYSTEMS WORLDWIDE, INC.
By /s/
------------------------------------
Name:
Title:
i
XPEDITE SYSTEMS LIMITED
By /s/
------------------------------------
Name:
Title:
AMERICAN TELECONFERENCING
SERVICES, LTD.
By /s/
------------------------------------
Name:
Title:
PREMIERE COMMUNICATIONS, INC
By /s/
------------------------------------
Name:
Title:
VOICECOM SYSTEMS, INC.
By /s/
------------------------------------
Name:
Title:
ii
VOICE-TEL ENTERPRISES, INC.
By /s/
------------------------------------
Name:
Title:
iii
THE BANK OF NEW YORK,
as Administrative Agent and as a Bank
By /s/
------------------------------------
Name:
Title:
NATIONSBANK, N.A.,
as Documentation Agent and as a Bank
By /s/
------------------------------------
Name:
Title:
Agreement Date:
iv
ANNEX A
-------
BANKS, LENDING OFFICES
AND NOTICE ADDRESSES COMMITMENTS
--------------------- -----------
THE BANK OF NEW YORK $50,000,000
Domestic Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurocurrency Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice Address:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
BANKS, LENDING OFFICES
AND NOTICE ADDRESSES COMMITMENTS
--------------------- -----------
NATIONSBANK, N.A. $100,000,000
Domestic Lending Office:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Eurocurrency Lending Office:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Notice Address:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
Schedule 1.02
-------------
NOTICE OF BORROWING FOR LOANS
[Name and address
of Administrative Agent in accordance with
Section 10.01]
Date:
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated as of
December 16, 1998, among Xpedite Systems, Inc. and Xpedite Systems Holdings (UK)
Limited, as Borrowers, the Guarantors party thereto, the Banks listed on the
signature pages thereof, NationsBank, N.A., as Documentation Agent, and The Bank
of New York, as Administrative Agent (the "Credit Agreement"). Terms defined in
the Credit Agreement that are not otherwise defined herein are used herein with
the meanings therein ascribed to them. The undersigned hereby gives notice
pursuant to Section 1.02 of the Credit Agreement of its request to have the
following Loans made to it on [insert requested date of borrowing or issuance]:
Type of Loan/1/ Amount
------------ ------
_________________________________ ______________
_________________________________ ______________
_________________________________ ______________
[Please disburse the proceeds of the Loans by [insert requested method of
disbursement].]/2/
The undersigned represents and warrants that (a) the borrowing requested
hereby complies with the requirements of Section 1.02 of the Credit Agreement
and (b) [except to the extent set forth on Annex A hereto,]/3/ (i) each Loan
Document Representation and Warranty is true and correct at and as of the date
hereof and (except to the extent the undersigned gives notice to the Banks to
the contrary prior to 5:00 p.m. on the Business Day before the requested date
for the making of the Loans) will be true and correct at and as of the time the
Loans are made, in each case both with and without giving effect to the Loans
and the application of the proceeds thereof, and (ii) no Default has occurred
and is continuing as of the date hereof or would result from the making of the
Loans or from the application of the proceeds thereof if the
Loans were made on the date hereof, and (except to the extent the undersigned
gives notice to the Banks to the contrary prior to 5:00 p.m. on the Business Day
before the requested date for the making of the Loans) no Default will have
occurred and be continuing at the time the Loans are to be made or would result
from the making of the Loans or from the application of the proceeds thereof.
[XPEDITE SYSTEMS, INC.]
[XPEDITE SYSTEMS HOLDINGS (UK) LIMITED]
By ,
---------------------------
Name:
Title:
_____________________
1. Be sure to specify the duration of the Interest Period in the case of
Eurocurrency Rate Loans (e.g., one-month Eurocurrency Rate).
----
2. Include and complete this sentence if the proceeds of the requested Loans
are to be disbursed in a manner other than by credit to an account of the
Borrower at the Administrative Agent's Office.
3. If the representation and warranty in either clause (b)(i) or (b)(ii) would
be incorrect, include the material in brackets and set forth the reasons
such representation and warranty would be incorrect on an attachment
labeled Annex A.
2
Schedule 1.03(c)(iv)
--------------------
NOTICE OF CONVERSION OR CONTINUATION
[Name and address
of Administrative Agent in accordance with
Section 10.01]
Date:
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated as of
December 16, 1998, among Xpedite Systems, Inc. and Xpedite Systems Holdings (UK)
Limited, as Borrowers, the Guarantors party thereto, the Banks listed on the
signature pages thereof, NationsBank, N.A., as Documentation Agent, and The Bank
of New York, as Administrative Agent (the "Credit Agreement"). The undersigned
hereby gives notice pursuant to Section 1.03(c)(iv) of the Credit Agreement of
its desire to convert or continue the Loans specified below into or as Loans of
the Types and in the amounts specified below on [insert date of conversion or
continuation]:
Loans to be Converted or Continued Converted or Continued Loans
-------------------------------------------------- ----------------------------------------
Type Last Day of Current Type
of Loan/1/ Interest Period Amount of Loan/1/ Amount
------------ ------------------- --------------- ------------------- -------------------
------------ ------------------- --------------- ------------------- -------------------
------------ ------------------- --------------- ------------------- -------------------
------------ ------------------- --------------- ------------------- -------------------
The undersigned represents and warrants that conversions and continuations
requested hereby comply with the requirements of the Credit Agreement.
[XPEDITE SYSTEMS, INC.]
[XPEDITE SYSTEMS HOLDINGS (UK) LIMITED]
By:
-------------------------------
Name:
Title:
______________
/1/ Be sure to specify the duration of the Interest Period in the case of
Eurocurrency Rate Loans (e.g., one-month Eurocurrency Rate).
Schedule 1.05(a)
----------------
NOTICE OF PREPAYMENT
[Name and address
of Administrative Agent in accordance with
Section 10.01]
Date:
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated as of
December 16, 1998, among Xpedite Systems, Inc. and Xpedite Systems Holdings (UK)
Limited, as Borrowers, the Guarantors party thereto, the Banks listed on the
signature pages thereof, NationsBank, N.A., as Documentation Agent, and The Bank
of New York, as Administrative Agent (the "Credit Agreement"). The undersigned
hereby gives notice pursuant to Section 1.05(a) of the Credit Agreement that it
will prepay the Loans specified below on [insert date of prepayment]:
[Last Day of
Current
Type of Loan/1/ Interest Period] Amount
---------------------------- ------------------------------ -----------------------------
---------------------------- ------------------------------ -----------------------------
---------------------------- ------------------------------ -----------------------------
---------------------------- ------------------------------ -----------------------------
The undersigned represents and warrants that the prepayment
requested hereby complies with the requirements of the Credit Agreement.
[XPEDITE SYSTEMS, INC.]
[XPEDITE SYSTEMS HOLDINGS (UK) LIMITED]
By
---------------------------------
Name:
Title:
-----------------
/1/ Be sure to specify the duration of the Interest Period in the case of
Eurocurrency Rate Loans (e.g., one-month Eurocurrency Rate).
----
2
Schedule 2.01(a)(i)
-------------------
[INSERT NAME OF LOAN PARTY]
CERTIFICATE AS TO RESOLUTIONS, ETC.
I, __________, [Assistant] Secretary of [insert name of loan party], a
[__________] corporation (the "Company"), hereby certify, pursuant to Section
2.01(a)(i) of the Amended and Restated Credit Agreement, dated as of December
16, 1998, among Xpedite Systems, Inc. and Xpedite Systems Holdings (UK) Limited,
as Borrowers, the Guarantors party thereto, the Banks listed on the signature
pages thereof, NationsBank, N.A., as Documentation Agent, and The Bank of New
York, as Administrative Agent (the "Credit Agreement"), that:
1. The below named persons have been duly elected (or appointed) and have
duly qualified as, and on this day are, officers of the Company holding their
respective offices below set opposite their names, and the signatures below set
opposite their names are their genuine signatures:
Name Office Signature
---- ------ ---------
[Insert names and offices _______________________________
of persons authorized to sign _______________________________
the Loan Documents to which ______________________________
the Company is a party _______________________________
and any related documents] _______________________________
2. (a) Attached as Annex A is a true and correct copy of resolutions duly
adopted by [unanimous written consent of] the Board of Directors of the Company.
Such resolutions have not been amended, modified or revoked and are in full
force and effect on the date hereof.
[(b) Attached as Annex A-1 is a true and correct copy of resolutions duly
adopted by [unanimous written consent of] the stockholders of the Company. Such
resolutions have not been amended, modified or revoked and are in full force and
effect on the date hereof.]/1/
3. The loan documents to which the Company is a party, in each case as
executed and delivered on behalf of the Company, are in the forms thereof
approved by [unanimous written consent of] the Board of Directors of the
Company.
4. There has been no amendment to the Certificate of Incorporation of the
Company since __________, 19__./2/
5. Attached as Annex B is a true and correct copy of the By-laws of the
Company as in effect on __________, 19__/3/ and at all subsequent times to and
including the date hereof.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
__________, 1997.
___________________________
[Assistant] Secretary
I, __________, [title] of the Company, hereby certify that [name of the
above [Assistant] Secretary] has been duly elected or appointed and has been
duly qualified as, and on this day is, [Assistant] Secretary of the Company, and
the signature in paragraph 1 above is his genuine signature.
IN WITNESS WHEREOF, I have signed this certificate this __ day of
__________, 19__.
___________________________
[Title]
____________________
1. Omit if not applicable.
2. Insert date of the Secretary of State's Certificate of Incorporation
required by Section 2.01(a)(ii).
3. Insert date of the Board of Directors' meeting adopting the resolutions
referred to in paragraph 2(a).
2
Schedule 2.01(a)(iv)
--------------------
FORM OF OPINION OF COUNSEL
FOR THE LOAN PARTIES
Schedule 2.01(a)(iv)
FORM OF OPINION OF COUNSEL FOR THE LOAN PARTIES
December 16, 1998
To the Persons Listed on the Schedule A hereto
Re: $150,000,000 Amended and Restated Credit Agreement to Xpedite Systems, Inc.
and Xpedite Systems Holdings (UK) Limited
Ladies and Gentlemen:
We have acted as special counsel to Premiere Technologies, Inc.
("Premiere"), a Georgia corporation, Xpedite Systems, Inc. ("Xpedite"), a
Delaware corporation, Xpedite Systems Holdings (UK) Limited ("Xpedite UK"), an
English corporation, Xpedite Systems Limited ("Xpedite Systems"), an English
corporation, Xpedite Systems Worldwide, Inc. ("Worldwide"), a Delaware
corporation, Premiere Communications, Inc. ("Premiere Communications"), a
Florida corporation, Voice-Tel Enterprises, Inc. ("Voice-Tel"), a Delaware
corporation, VoiceCom Systems, Inc. ("VoiceCom"), a Washington corporation, and
American Teleconferencing Services, Ltd., ("American Teleconferencing"), a
Missouri corporation in connection with the execution and delivery of that
certain Credit Agreement dated as of December 17, 1997, as Amended and Restated
as of December 16, 1999 (the "Credit Agreement"), by and among Xpedite and
Xpedite UK , as Borrowers, Xpedite Systems, Worldwide, Premiere, Premiere
Communications, Voice-Tel, VoiceCom and American Teleconferencing, as
Guarantors, the signatory banks thereto (collectively, the "Banks"), and The
Bank of New York, as administrative agent (the "Administrative Agent") for the
Banks, and NationsBank, N.A., as documentation agent, pursuant to which and
subject to the terms and conditions of which the Banks agree to make Loans to
the Borrowers on the terms and conditions set forth therein. Unless otherwise
defined herein, terms defined in the Credit Agreement are used herein as therein
defined. This opinion is being rendered pursuant to Section 2.01(a)(iv) of the
Credit Agreement.
In our capacity as special counsel to the Borrowers and Guarantors, we have
examined originals, or copies identified to our satisfaction as being true
copies of such originals of the following:
(a) The Certificate of Incorporation of each of Xpedite, Worldwide,
Premiere, Premiere Communications, Voice-Tel, VoiceCom and American
Teleconferencing (collectively, the "Domestic Credit Parties"), as amended to
date;
(b) The Bylaws of each of the Domestic Credit Parties, as amended to date;
(c) Certificates of the Secretary of State of the respective states of
incorporation for each of the Domestic Credit Parties, of recent date,
certifying as to the good standing of each of the Domestic Credit Parties,
(d) Resolutions of the Boards of Directors of each of the Domestic Credit
Parties relating to the Credit Agreement, the other Loan Documents (as defined
below) and the transactions contemplated thereby;
(e) The Credit Agreement;
(f) The Notes;
(g) A Security Agreement dated as of December 17, 1997 between Xpedite and
The Bank of New York, as Secured Party;
(h) A Security Agreement dated as of December 17, 1997 between Worldwide
and The Bank of New York, as Secured Party;
(i) Security Agreements dated as of the date hereof by each of Premiere,
Voice-Tel and American Teleconferencing in favor of The Bank of New York, as
Secured Party (the Security Agreements referred to in subparagraphs (g), (h) and
(i) referred to herein as the "Security Agreements");
(j) A Deed of Charge over Shares and Securities dated as of December 17,
1997 between Worldwide and The Bank of New York, as Agent (the "Deed of
Charge"); and
(k) Form of financing statements on Form UCC-1 naming each of the Domestic
Credit Parties, as debtors, and the Administrative Agent, as secured party (the
"Financing Statements").
The documents set forth in clauses (e) through (k) are hereinafter referred
to collectively as the "Loan Documents".
In rendering this opinion we have assumed (i) that the signatures on all
documents examined by us are genuine, (ii) that any individual executing such
documents had the legal capacity to execute such documents, (iii) the
authenticity of all documents submitted to us as originals, (iv) the conformity
to original documents of all documents submitted to us as photostatic or
certified copies, (v) the authenticity of such copies, and (vi) that the rights
set forth in the Loan Documents have been granted for adequate consideration,
and that the grants of such rights were not made with the intent to hinder,
delay or defeat any of the rights of any creditors of the Loan Parties. As to
certain factual matters which were not independently established, we have relied
to the extent we have deemed proper, on certificates and other information of
the Loan Parties or public officials.
We have also assumed, without independent investigation, that and relied
upon the fact that: (i) the representations and warranties set forth in the Loan
Documents are true and correct as to factual matters; (ii) each of the parties
to the Loan Documents (other than the Domestic Credit Parties) has been duly
organized and is validly existing and in good standing under the jurisdiction of
its incorporation or organization; (iii) the execution and delivery of? and
performance by, each party to the Loan Documents (other than the Domestic Credit
Parties) are within its power and authority; (iv) the execution, delivery and
performance of the Loan Documents by each of the parties thereto (other than the
Domestic Credit Parties) do not conflict with or violate such Person's
organizational documents or bylaws or any provision of any order, writ,
judgment, injunction, decree, determination or award applicable to such Person;
(v) the execution, delivery and performance of the Loan Documents by each of the
parties thereto (other than the Domestic Credit Parties and, as to Xpedite UK
and Xpedite Systems, New York and Federal law) do not violate any applicable law
with respect to such Person; (vi) each of the parties to the Loan Documents
(other than the Domestic Credit Parties) has duly authorized, executed and
delivered the Loan Documents; (vii) each of the Loan Documents is a legal, valid
and binding obligation of each party thereto, enforceable in accordance with
their respective terms against the parties thereto (other than, under New York,
Georgia and Federal law, with respect to the Domestic Credit Parties, Xpedite
UK and Xpedite Systems); (viii) all authorizations, approvals or other actions
by, and all notices to or filings with, any governmental authority, regulatory
body or other Person that are required for the due execution, delivery and
performance by the respective parties thereto (other than the Domestic Credit
Parties), if required, have been duly obtained or made and are in full force and
effect; (ix) there is no agreement or course of prior dealing between any of the
parties which would supplement the relationships set forth in the Loan
Documents; (x) the pledgors under the Security Agreements own, legally and
beneficially, the Shares, (as hereinafter defined) and otherwise have and
continue to have rights in such Collateral within the meaning of Section 9-203
(1) (c) of the Uniform Commercial Code, as adopted in the State of Georgia (the
"UCC"); and (xi) that there has not been any fraud, duress, undue influence or
material mistake of fact.
We have also examined such corporate records, certificates of corporate and
governmental representatives, and such questions of law and other matters as we
have considered necessary or appropriate for the purpose of enabling us to
express this opinion.
Based on the foregoing, and subject to all of the qualifications,
exceptions and assumptions set forth herein, we are of the opinion that:
1. Each of the Domestic Credit Parties is validly existing and in good
standing under the laws of their respective jurisdictions of incorporation, with
full corporate power and authority to enter into and perform its respective
obligations under the Loan Documents and to consummate the transactions
contemplated thereby.
2. The execution and delivery by each of the Domestic Credit Parties of
each of the Loan Documents to which it is a party, and the consummation of the
transactions contemplated thereby, have been duly authorized by all necessary
corporate action by the Domestic Credit Parties.
3. The execution and delivery by each of the Domestic Credit Parties of
each of the Loan Documents to which it is a party, and the consummation of the
transactions contemplated thereby, do not violate any provision of the
Certificate of Incorporation or By-laws of such Domestic Credit Party, as the
case may be. The execution and delivery by the Domestic Credit Parties of the
Loan Documents do not require any such Person to obtain any authorization,
approval or consent of any Georgia or United States Governmental Authority for
the legality, validity, or binding effect of the Loan Documents or violate any
law, rule or regulation of the State of Georgia or the United States applicable
to the Domestic Credit Parties; provided, however, that, notwithstanding the
foregoing, we express no opinion as to (i) the necessity of obtaining any
authorization, approval or consent from any Governmental Authority having
specific jurisdiction over the regulation of Persons engaged in the
telecommunications business or (ii) whether the execution and delivery of the
Loan Documents violate any law, rule or regulation specifically relating to the
regulation of Persons engaged in the business of telecommunications.
4. Each of the Loan Documents to which any of the Domestic Credit Parties
is a party has been duly executed and delivered by such Domestic Credit Party.
5. The Loan Documents (other than any Loan Document governed by the laws
of the United Kingdom as to which we express no opinion) constitute the legal,
valid and binding obligation of each such Loan Party, as applicable, enforceable
against such applicable party in accordance with their respective terms.
6. To our knowledge, the execution and delivery by the Domestic Credit
Parties of each of the Loan Documents to which it is a party, and the
consummation of the transactions contemplated thereby, do not (a) cause any
Domestic Credit Party to violate any material order, writ, judgment, injunction,
decree, determination or award of any court, arbitrator or governmental
commission, board, bureau or agency to which any Domestic Credit Party is a
party or is bound or (b) require any consent or approval under, or otherwise
breach, any material agreement to which any Domestic Credit Party is a party or
is bound.
7. To our knowledge, there are no legal actions, suits or proceedings
pending or threatened against any Domestic Credit Party before any court,
arbitrator or governmental commission, board, bureau or agency which question
the validity of the Loan Documents to which any Domestic Credit Party is a
party.
8. Each of the Security Agreements is in proper form to create a valid
security interest under the UCC in favor of The Bank of New York, as Secured
Party thereunder (the "Secured Party") in such portion of the Collateral, a lien
or security interest in which is governed by, and subject to, the UCC, to secure
the Secured Obligations (as defined in the Security Agreements) purported to be
secured thereby.
9. Assuming the Secured Party is holding and continues to hold the
certificates representing the shares listed on Schedule 2.01(c) (v) to each of
the Security Agreements (the "Shares"), endorsed in blank or endorsed to the
Secured Party, in the State of New York and assuming that the Secured Party and
each Bank have taken such Shares in good faith and without notice of an adverse
claim the Security Agreements create a perfected security interest in such
Shares under the UCC. Please note, however, that, without limitation,
perfection of the applicable security interests will be terminated if the
Secured Party no longer has possession of any collateral described above as
being in its possession.
For purposes of the opinion set forth in paragraph 1 hereof we have relied
solely on certificates of existence or good standing issued by the secretary of
state of the jurisdiction of each of the Domestic Credit Parties and our opinion
is limited to, or qualified by, the substance of the certifications of such
certificates.
We note that we are admitted to practice only in the States of Georgia,
North Carolina and the District of Columbia and express no opinions other than
the laws of such jurisdictions, the General Corporation Law of the State of
Delaware and the federal laws of the United States of America. We note that
Premiere Communications, Voice-Com and American Teleconferencing are
corporations organized under the laws of Florida, Washington and Missouri,
respectively. Accordingly, with respect to these entities, for purposes of
paragraph 1 hereof relating to the opinion regarding corporate power, for
purposes of paragraph 2 hereof, and for purposes of the opinion set forth in
paragraph 4 hereof with respect to the due execution of the Loan Documents, we
have assumed that the corporation. Laws of the States of Florida, Washington
and Missouri are the same as the General Corporation Law of the State of
Delaware. We understand that you will obtain local counsel opinions with
respect to these matters after the date hereof However, to our knowledge, we
have no reason to believe that our opinions with respect to these entities is
not correct.
This opinion is limited to the specific opinions set forth above and is
further limited as follows:
(a) The opinions expressed herein are subject to the qualification that
enforceability of the Loan Documents may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and transfer and
other laws of general application affecting the rights and remedies of creditors
and by general principles of equity (whether applied in a proceeding at law or
in equity), including, without limitation, principles of materiality,
reasonableness and good faith, and the application of equitable principles to
limit the availability of equitable remedies, such as specific performance of
remedies granted under the Loan Documents.
(b) We express no opinion with respect to "proceeds" (within the meaning of
Section 9-306 of the UCC) of any Collateral. Notwithstanding any provision of
any Security Agreement, any enforcement of any security interest in the
Collateral purported to be created by any Security Agreement must be effected in
a "commercially reasonable manner: as prescribed by the UCC. Further, we express
no opinion as to the creation of any security interest in any of the Collateral
where federal law may have preempted the UCC including, but not limited to, the
Assignment of Claims Act of 1940, as amended.
(c) We express no opinion with respect to perfection of any security
interests (except as expressly set forth in Paragraph 10 above) and, in
particular, we express no opinion on the provisos contained in Section 4.07 of
the Credit Agreement, or the priority of the security interests of the Secured
Party in, or as to the ownership (including intellectual property) of, or as to
the absence of any Liens on, any of the Collateral. We express no opinion as to
the accuracy or adequacy of the description of any intellectual property
purported to be covered by the Security Agreements.
(d) We express no opinion with respect to any documents, agreements, or
instruments executed and delivered in connection with the loan transaction
evidenced by the Notes other than the Loan Documents.
(e) We note that the UCC provides that perfection, the effect of perfection
and non-perfection, and priority of security interests are governed by the laws
of the jurisdiction in which collateral or the debtor is located and we are not
opining as to whether Georgia substantive law would apply in any such other
jurisdiction. Further, we express no opinion s to where the debtor, other than
Premiere, is located. For purposes of the UCC, Premiere is located in ▇▇▇▇▇▇
County, Georgia. In this connection, we advise you to file Financing Statements
for each Domestic Credit Party with the Clerk of the Superior Court of ▇▇▇▇▇▇
County, Georgia, with the appropriate filing office in each jurisdiction where a
Domestic Credit Party has represented such jurisdiction to be the location of
its chief executive office (if different from ▇▇▇▇▇▇ County, Georgia) and with
the appropriate filing office in each jurisdiction where any tangible Collateral
is located. Further, we have assumed that none of the Collateral constitutes
"farm products", "minerals" or accounts arising therefrom or constitutes
"fixtures", as each is defined in the UCC. Further, we have assumed that the
name of each debtor appearing on each Financing Statement is the exact corporate
name of each such debtor, that the taxpayer identification number for each
debtor set forth on each Financing Statement is correct, that the address of the
secured party for each Financing Statement is an address where information
regarding the security interest may be obtained, that each Financing Statement
has been signed by the applicable debtor, that any and all attachments to each
Financing Statement are so attached and filed and that each Financing Statement
adequately describes the Collateral.
(f) We express no opinion with respect to the effect of any amendments
supplements, renewals, extensions or modifications of the Loan Documents which
may be made at any time or from time to time, or with respect to the lien of the
Security Agreements with respect to any advances made pursuant to the Credit
Agreement following any such amendments, supplements, renewals, extensions or
modifications.
(g) We express no opinion as to the effect of the laws of any jurisdiction
other than the State of New York, the State of Georgia, the General Corporation
Law of the State of Delaware and the Federal laws of the United States of
America in effect on the date hereof (but exclusive of (i) Federal and state
securities, tax, banking and antitrust laws, (ii) ERISA and (iii) criminal
laws), and we do not undertake any obligation to advise you of any changes
therein subsequent to the date hereof.
(h) We express no opinion as to the effect of compliance by the
Administrative Agent or any Bank with any state or Federal laws, rules or
regulations applicable to the transactions because of the nature of any such
Person's business or facts relating specifically to any of them, or as to the
effect of any such non-compliance on the opinions set forth above.
(i) Without limiting the qualifications set forth in paragraph (a) above,
certain of the provisions contained in the Loan Documents may be limited or
rendered unenforceable under applicable laws and judicial decisions including,
but not limited to (i) waivers of notices, defenses, remedies or demands (or the
delay or omission of enforcement thereof), including waiver of notice of set-off
or actions with respect to the Collateral, (ii) exculpation clauses in your
favor, (iii) clauses providing for recovery of attorneys' fees, (iv) provisions
for late payment fees and additional interest after default, (v) liability
limitations with respect to third parties or liquidated damages, (vi)
indemnification provisions, (vii) provisions appointing you as attorney-in-fact
for various purposes or similar provisions similar to Section 11.02(e) of the
Credit Agreement, (viii) remedial provisions of the Security Agreements, (ix)
provisions that purport to establish evidentiary standards, (x) waivers of trial
by jury and the defense of inconvenient forum, (xi) clauses regarding the
specification of methods of service of process; (xii) clauses relating to the
exercise of right of set-off other than in accordance with applicable law; and
(xiii) various waivers of rights of guarantors. Nevertheless, subject to
compliance with applicable procedural requirements and subject to the
qualifications in paragraph (a) above, such laws and decisions would not, in our
opinion, make the remedy of acceleration afforded by the Credit Agreement or the
remedies provided in the Security Agreement inadequate for the practical
realization of the essential benefit of enforcement of the obligations of the
Domestic Credit Parties upon a material default by such Loan Parties.
We express no opinion on the jurisdiction of or the acceptance of
jurisdiction by, a Federal court located in the State of Georgia with respect to
disputes arising under the Loan Documents.
(k) We express no opinion on the rights or obligations of third parties,
and, in particular, we express no opinion on the provisos contained in Section
4.07 of the Credit Agreement in this regard.
(l) As used herein, the phrase "to our knowledge" or any similar references
means that, while we have made no inquiry or other investigation or examination
of the Loan Parties, their records, our records, public records or otherwise,
whether in connection with the transaction contemplated by the Loan Documents,
the rendering of this opinion or otherwise, to determine the existence or
absence of matters as to which reference is made (and no inference as to our
knowledge of the existence or absence of such matters should be drawn from our
representation of the Loan Parties), we have obtained no actual knowledge to the
contrary in our representation of the Loan Parties in connection with their
execution and delivery of the Loan Documents. Moreover, "knowledge" of this
Firm is limited to the knowledge of the individual attorneys in the Firm who
have represented the Loan Parties in connection with the execution and delivery
of the Loan Documents.
We express no opinion as to the enforceability of any provision of the
Agreements which requires that amendments or waivers be in writing.
The opinion in paragraph 5 regarding the enforceability of the Agreements
is also subject to the following:
(i) the effect of course of dealing, course of performance, or the like,
that would modify the terms of such agreements or the respective rights or
obligations of the parties under such agreements;
(ii) the possible unenforceability of provisions that enumerated remedies
are not exclusive or that a party has the rigid to pursue multiple remedies
without regard to other remedies elected or that all remedies are cumulative;
(iii) the possible unenforceability of provisions that determinations by a
party or a party's designee are conclusive;
(iv) the possible unenforceability of provisions that the provisions of an
agreement are severable, and
(v) the effect of laws requiring mitigation of damages.
The opinions expressed herein are valid only as of the date of this
opinion. We have no obligation to update this letter as to any subsequent
matters, facts or events coming to our attention.
Opinions are as expressly set forth herein and no opinion is implied, or
may be inferred, other than the express language of such opinion.
This opinion may be relied upon only by you, and is solely for your benefit
in connection with the transactions contemplated by the Loan Documents and is
not to be relied upon by any other Person or be used, circulated, quoted or
otherwise referred to for any other purpose without our prior written consent.
Very truly yours,
▇▇▇▇▇▇ & BIRD LLP
By:
-----------------------------
Schedule 2.01(a)(v)
-------------------
FORM OF OPINION OF ENGLISH COUNSEL FOR XPEDITE SYSTEMS HOLDINGS (UK) LIMITED
16 December 1998
To: The Bank of New York as Administrative Agent and Security Agent for
itself and for the financial institutions for whom the Bank of New
York is agent as at the date hereof.
Dear Sirs,
1. We have acted as English legal advisers to Xpedite Systems Holdings
(UK) Limited ("Holdings") and Xpedite Systems Limited ("Systems") in connection
with an amendment and restatement of a credit agreement (the "Credit Agreement")
originally dated 17 December 1997 made between Xpedite Systems, Inc. and Xpedite
Systems Holdings (UK) Limited as Borrowers, the Guarantors party thereto, the
Banks party thereto, Nationsbank, N.A. as Documentation Agent and The Bank of
New York as Administration Agent.
Terms defined in the Finance Documents shall have the same meanings herein.
2. We have examined copies of the following documents in the form signed
by the parties thereto:
(i) an amended and restated credit agreement (the "Amended Credit
Agreement") dated 16 December 1998 made between Xpedite Systems, Inc. and
Xpedite Systems Holdings (UK) Limited as Borrowers, the Guarantors party
thereto, the Banks party thereto, Nationsbank, N.A. as Documentation Agent and
The Bank of New York as Administration Agent;
(ii) a fixed and floating charge (the "Holdings Charge") dated 17 December
1997 and made between Holdings and The Bank of New York;
(iii) a fixed and floating charge (the "Systems Charge") dated 17 December
1997 and made between Systems and The Bank of New York;
(iv) the deed of charge over shares and securities (the "Share Charge")
dated 17 December 1997 and made between Xpedite Systems Worldwide, Inc. and The
Bank of New York;
and such other documents as we considered it necessary or desirable to examine
in order that we may give this opinion.
The Holdings Charge, the Systems Charge and the Share Charge are
hereinafter referred to as the "English Documents". The English Documents and
the Amended Credit Agreement are referred to as the "Finance Documents".
3. The opinion relates only to English law as it exists at the date hereof
and assumes:
(i) the genuineness of all signatures;
(ii) the completeness and conformity to originals of all documents
supplied to us as certified or photostatic copies and the authenticity of the
originals of such documents:
(iii) the capacity, power and authority of each of the parties other than
Holdings and Systems respectively to the Finance Documents;
(iv) the due execution and delivery of the Finance Documents by each of
the parties thereto (other than Holdings and Systems) on the date thereof;
(v) that there have been no amendments to the Memorandum and Articles of
Association of either Holdings or Systems in the form certified as being in
force by a duly authorised officer thereof;
(vi) that the resolutions of the board of directors of each of Holdings
and Systems certified by a duly authorised officer of Holdings and Systems were
duly passed at properly convened meetings of duly appointed directors of each
such company and have not been amended or rescinded and are in full force and
effect and that due disclosure (if any) had been made by each director of any
interest he might have in the Finance Documents in accordance with the
provisions of Section 317 of the Companies Act 1985 (the "Act") and such
company's Articles of Association and that no director of either of the
companies had any interest in the Finance Documents except to the extent
permitted by the relevant company's Articles of Association;
(vii) that neither of Holdings or Systems have passed a voluntary winding-
up resolution, no petition has been presented or order made by a Court for the
winding-up, dissolution or administration of either of Holdings or Systems and
no receiver, trustee, administrator or similar officer has been appointed in
relation to either of Holdings or Systems or any of its assets or revenues;
(viii) that the execution and delivery of each of the Finance Documents to
which they are a party by each of Holdings and Systems and the exercise of its
rights thereunder and the performance of its respective obligations thereunder
will materially benefit it;
(ix) there is no matter under the laws of any jurisdiction (other than
England) which would or might affect the opinions herein expressed:
(x) that the information disclosed by our enquiry of 16 December 1998 of
the Central Registry of Winding-up Petitions in relation to each of Holdings and
Systems was then accurate and has not since been altered;
(xi) that for the purposes of Section 155(2) of the Act, each of Holdings
and Systems had, at the time it gave any financial assistance (if any) under or
pursuant to or in connection with any Finance Document (other than the Share
Charge), net assets (as defined in Section 154(2) of the Act) which were not
thereby reduced or, to the extent that they were reduced, that the relevant
financial assistance was provided out of distributable profits;
(xii) that when Systems gave any financial assistance under or pursuant to
or in connection with any Finance Document (other than the Share Charge) it was
not at any relevant time a subsidiary of a public company if that public company
was itself a subsidiary of the company in respect of the acquisition of whose
shares such financial assistance was given;
(xiii) that the statutory declaration made on or about 17 December 1997 by
the director of Systems under Section 155(6) of the Act was duly made by the
sole director of that company (and that there were no other directors of the
company), that in forming his opinion for the purpose of Section 156(2) of the
Act the director has complied with the provisions of Section 156(3) of the Act
and that the statutory declaration and accompanying auditors report was, within
the prescribed time period, duly delivered by such company to the registrar of
companies in accordance with Section 156(5) of the Act; and
(xiv) that the statements of fact in the statutory declaration were
correct and that the statements of opinion in the statutory declaration and the
auditors' report were reasonable.
4. Our opinion is confined to and given on the basis of English law as
currently applied by the English courts and we have made no investigation of the
laws of any country other than England and we do not express or imply any
opinion on any such law. Furthermore. our opinion is to be construed in
accordance with and is governed by English law.
5. On the above assumptions and subject to the reservations set out below,
we are of the opinion that:
(i) each of Holdings and Systems is a company duly incorporated as a
private limited company in England with power to enter into the Amended Credit
Agreement and to exercise its rights and perform its obligations thereunder and
all corporate action required to authorise the execution and delivery by it of
the Amended Credit Agreement and the performance by it of its obligations
thereunder have been duly taken;
(ii) the Amended Credit Agreement will be duly executed if signed by any
director (or in the case of a deed) if signed by any two directors or any
director and the secretary;
(iii) the amendment and restatement of the Credit Agreement will not
affect the legality, validity and enforceability of the English Documents;
(iv) save for the registration of the English Documents with the
Registrar of Companies pursuant to Section 395 of the Companies ▇▇▇ ▇▇▇▇ and the
registration with the relevant office of H.M. Land Registry in relation to such
of the property as is described in the English Documents as being registered
land from time to time as appropriate, no further acts, conditions and things
were or, as the case may be, are required by English law to be done, fulfilled
and performed in order to enable either of Holdings or Systems lawfully to enter
into, exercise its rights under and perform the obligations expressed to be
assumed by it in each of the Finance Documents to which it is a party to ensure
that the obligations expressed to be assumed by each of Holdings and Systems in
the Finance Documents to which it is a party are or continue to be legal, valid
and binding and to make or ensure that each such Finance Document is admissible
in evidence in England;
(v) in any proceedings taken in England neither Holdings or Systems
shall be entitled to claim for itself or any of its assets immunity from suit,
execution, attachment or other legal process;
(vi) under English law, the claims of the Security Agent and the Banks
against either of Holdings or Systems under the Finance Documents to which it is
a party will rank at least pari passu with the claims of all its other unsecured
creditors other than those whose claims are preferred by any administration,
bankruptcy, insolvency or other similar laws of general application;
(vii) in any proceedings taken in England for the enforcement of the
English Documents, the choice of English law as the governing law of the English
Documents and any judgment on or in respect thereof obtained in England will be
recognised and enforced; and
(viii) the performance by either of the Holdings or Systems of its
obligations under the Finance Documents to which it is a party will not violate
any provision of any law or regulation of England or the Memorandum and Articles
of Association of such company.
6. The opinion set forth above is subject to the following reservations:
(i) provisions in the Finance Documents as to severability may not be
binding under English law and the question of whether or not provisions relating
to invalidity on account of illegality may be severed from other provisions in
order to save such other provisions would be determined by an English court at
its discretion;
(ii) undertakings and indemnities contained in the Finance Documents as
to the payment of any stamp duties may be void in respect of stamp duties
payable in the United Kingdom:
(iii) the English Documents together with prescribed particulars of the
charges constituted thereby must, as a matter of English law, be delivered to or
received by the Registrar of Companies for registration within 21 days after the
date of creation of the charges constituted thereby if such charges are not to
be void against the liquidator or administrator or any creditor of the company
creating the security constituted thereby. The English Documents were so
delivered to the Registrar of Companies within 21 days of the creation of the
charges constituted thereby;
(iv) under English law, any additional interest imposed upon either
Holdings or Systems by Clause 2.2.2 of each of the Holdings Charge and the
Systems Charge might be held to be irrecoverable on the grounds that they are
penalties and thus void but the fact that they were held to be void would not of
itself prejudice the legality or validity of any other provision of such Finance
Documents;
(v) there is some possibility that an English court would hold that a
judgment on the Finance Documents, whether given in an English court or
elsewhere, would supersede the Finance Documents to all intents and purposes so
that the obligations set forth in Clause 2.2.2 of the Holdings Charge and the
Systems Charge would not be held to survive such a judgment;
(vi) the power of the English courts to order specific performance of
any obligation or to order any other equitable remedy is discretionary and,
accordingly, an English court might make an award of damages where specific
performance of an obligation or any other equitable remedy was sought;
(vii) the enforcement of the rights and obligations of the parties to the
English Documents may be limited by the provision of English law applicable to
contracts held to have been frustrated by events happening after their
execution;
(viii) where any party to a Finance Document is vested with a discretion
or may determine a matter in its opinion, English law may require that such
discretion is exercised reasonably or that such opinion is based upon reasonable
grounds;
(ix) any provision in any Finance. Document providing that any
calculation or certification is to be conclusive and binding will not be
effective if such calculation or certification is fraudulent and will not
necessarily prevent judicial enquiry into the merits of any claim by any party
thereto;
(x) our opinion as regards the binding effect of the obligations of
each of Holdings and Systems under the Finance Documents to which it is
expressed to be a party is subject to any limitations arising from
administration, bankruptcy, insolvency, liquidation, reorganisation, moratoria
and other laws and general equitable principles relating to or affecting the
enforcement of creditors' rights (including, but without limitation, the effect
of the appointment of an administrator or administrative receiver within the
meaning of the Insolvency Act 1986);
(xi) the exercise by the Security Agent of the powers and remedies
conferred on it by any of the English Documents or otherwise vested in it by law
will be subject to general equitable principles regarding the enforcement of
security and the general supervisory powers and discretion of the English courts
in the context thereof and we express no opinion as to the efficacy of any
powers conferred upon the Security Agent or any receiver appointed under any of
the English Documents insofar as these powers go beyond those conferred by
statute or by common law;
(xii) an English court may refuse to give effect to a purported
contractual obligation to pay costs imposed upon another party in respect of the
costs of any unsuccessful litigation brought against that party and such a court
might not award by way of costs all of the expenditure incurred by a successful
litigant in proceedings brought before that court;
(xiii) claims may become barred pursuant to the provisions the Limitation
Acts or may be or become subject to defences of set-off or counterclaim;
(xiv) we express no opinion as to, whether any provision in the English
Documents conferring a right of set-off or similar right would be effective
against a liquidator or a creditor of a company in liquidation;
(xv) the opinion expressed in paragraph 5(i) above that each of Holdings
and Systems is a company duly incorporated under English law and the fact that
the English documents were delivered to the Registrar of Companies within 21
days of the date thereof is based solely upon our examination of the company
microfiche of each of Holdings and Systems obtained from the Registrar of
Companies. It should be noted that:
(a) a search at Companies Registry is not capable of revealing whether
or not a winding-up petition or a petition for the making of an
administration order has been presented; and
(b) notice of a winding-up order or resolution, notice of an
administration order and notice of the appointment of a receiver may not be
filed at the Companies Registry immediately and there may be delay in the
relevant notice appearing on the file of the relevant party;
(xvi) We express no opinion as to whether the English Courts would
recognise any of the security constituted by the English Documents which are
expressed to be by way of fixed or specific charge as a fixed charge since they
may hold security to be by way of floating charge for example, to the extent
that each of the Holdings and Systems is given liberty to deal with the sums
standing to the credit of any accounts which are charged, it may be that the
security constituted in respect of those accounts will be construed by the
courts as being of a floating rather than a fixed nature since it is of the
essence of a fixed security that the person creating the security does not have
liberty to deal with the assets which are the subject of the security;
(xvii) We express no opinion as to the priority of any of the security
created by the English Documents (in particular you should note that the
security constituted by any floating charge will rank after preferential debts
afforded priority under Section 175(2) of the Insolvency Act 1986) and whether
such constitutes a legal or equitable security interest and whether any charge
over future property is a fixed or floating charge;
(xviii) We express no opinion as to the existence of any property or
assets purporting to be comprised in any security expressed to be created by the
English Documents, whether any such property or assets is owned by either of
Holdings or Systems or Xpedite Systems Worldwide Inc. whether the same is now or
may hereafter become subject to any equities, liens, rights or interests in
favour of any other person ranking in priority to or free from such security or
whether the same could be transferred to any other person free of such security
in particular you should note that a company is not required to file notice of
all charges and mortgages with the Companies Registry including security
afforded over shares and accordingly it is not possible to verify whether the
security comprised in the English Documents is subject to any prior existing
encumbrances;
(xix) We express no opinion as to the efficacy of the English Documents
in relation to any property or assets situated outside England and Wales;
(xx) We express no opinion as to whether the English Documents will
constitute effective security over any cash deposited or credit balances
maintained with the Security Agent for the purposes of securing the obligations
expressed to be secured thereby by a charge in favour of the Security Agent;
(xxi) Under English law, the provision of a guarantee and/or security by
a company in respect of the obligations of its parent, or other subsidiary of
its parent, is only valid and binding upon the guaranteeing company if it can be
shown that (a) such company is duly authorised to provide guarantees and/or
security of that nature in its Memorandum of Association or other constitutive
documents (which each of Holdings and Systems are so authorised) and (b) that it
has derived some benefit from so doing. In the case of (b), this is a question
of fact in each case, relating to the nature of each of Holdings and Systems and
its business and operations and we do not express any opinion as to whether the
English courts would determine that either of the companies actually derived a
benefit from the transaction concerned and accordingly that it is valid and
binding under English law:
(xxii) This opinion is not to be taken to imply that any obligation would
necessarily be capable of enforcement in all circumstances in accordance with
its terms. Also, the term "enforceability" assumes that the obligations assumed
by the companies under the English Documents are of the type which an English
court enforces. In particular:
(a) enforcement of obligations of a party to be performed after the
date hereof may be limited by bankruptcy, insolvency, liquidation,
administration moratoria, reorganisation and other laws of general
application relating to or affecting the rights of creditors as such law
may be applied in the event of bankruptcy, insolvency, liquidation
administration, moratoria, reorganisation or other similar proceedings with
respect to such party;
(b) an English court will not necessarily grant any remedy, the
availability of which is subject to equitable considerations or which is
otherwise in the discretion of the court. In particular, orders for
specific performance and injunctions are, in general, discretionary
remedies under English law and specific performance is not available where
damages are considered by the court to be an adequate alternative remedy;
(c) claims may become barred under the Limitation ▇▇▇ ▇▇▇▇ or the
Foreign Limitation Periods Act 1984 or may be or become subject to the
defence or rights of set-off and notwithstanding provisions in the English
Documents purporting to exclude such defences or rights;
(d) where obligations are to be performed in a jurisdiction outside
England, they may not be enforceable in England to the extent that
performance would be illegal under the laws, or contrary to the exchange
control regulations of the other jurisdiction; and
(e) the enforcement of the obligations of the parties to the English
Documents may be limited by the provisions of English law applicable to
agreements held to have been frustrated by events happening after their
execution;
(xxiii) The opinion expressed in paragraph 5(iii) above is subject also to
the following provisions of the Insolvency ▇▇▇ ▇▇▇▇:
(a) under Section 238 of the Insolvency ▇▇▇ ▇▇▇▇ a gift given or
transaction entered into by either of Holdings or Systems with a person on
terms that provide for either of Holdings or Systems to receive either no
consideration or a consideration the value of which, in money or money's
worth, is significantly less than the value, in money or money's worth of
the consideration provided by Holdings or Systems may be set aside in the
event of either of Holdings or Systems subsequent insolvency;
(b) under Section 245 of the Insolvency ▇▇▇ ▇▇▇▇ a floating charge
created by either of Holdings or Systems within twelve months of the
commencement of the winding-up of either of Holdings or Systems may be held
to be invalid unless it is proved that either of Holdings or Systems
immediately after the creation of the charge was solvent, and except to the
amount of any cash paid to either of Holdings or Systems at the time of or
subsequently to the creation of, and in consideration for the charge;
(c) under Sections 239 or 240 of the Insolvency ▇▇▇ ▇▇▇▇ a charge
created by either of Holdings or Systems within six months of the
commencement of the winding-up of either of Holdings or Systems will be
subject to review as a preference. The charge will be liable to be set
aside if at the time the charge was given that such either of Holdings or
Systems was insolvent and the charge has the effect of putting any person
in a better position, in the event of either of Holdings or Systems going
into insolvent liquidation, than he would have been in if the charge had
not been created in his favour. However, no order will be made to set aside
the charge in such a case unless the company which gave the preference was
influenced in deciding to give it by a desire to obtain a preference; and
(d) under Sections 178 (Power to disclaim onerous property) and
Section 186 (Recissions of contracts by courts) of the Insolvency Act;
(xxiv) Where any obligations of any person are to be performed in any
jurisdiction outside England, such obligations may not be enforceable under
English law to the extent that such performance thereof would be illegal or
contrary to public policy under the laws of such jurisdiction; and
(xxv) we express no opinion as to any agreement, instrument or other
document other than as specified in this letter, or as to any liability to tax
which may arise or be suffered as a result of or in connection with the Finance
Documents.
7. This opinion is addressed to The Bank of New York as Security Agent
and Administrative Agent for itself and for the Banks and it may not be relied
upon by any other firm person or corporation whatsoever.
Yours faithfully
▇▇▇▇▇▇▇▇ Chance
Schedule 2.01 (a)(vi)
---------------------
FORM OF OPINION OF
WINTHROP, STIMSON, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
[WSP&R LETTERHEAD]
December 16, 1998
To the Administrative Agent and each Bank party
to the Credit Agreement referred to below
Ladies and Gentlemen:
We have acted as counsel to The Bank of New York, as Administrative Agent,
and NationsBank, N.A., as Documentation Agent, in connection with the
negotiation, execution and delivery of the Credit Agreement, dated as of
December 17, 1997 as amended and restated as of December 16, 1998, among Xpedite
Systems, Inc. and Xpedite Systems Holdings (UK) Limited, as Borrowers, the
Guarantors party thereto, the Banks listed on the signature pages thereof,
NationsBank, N.A., as Documentation Agent, and The Bank of New York, as
Administrative Agent (the "Credit Agreement"). Terms defined in the Credit
----------------
Agreement that are not otherwise defined herein are used herein with the
meanings therein ascribed to them.
For the purposes of rendering the opinions contained in this letter, we
have examined executed counterparts of the Credit Agreement, the Notes delivered
on the date hereof, and the Security Agreements (collectively, the "Loan
----
Documents").
---------
For the purposes of this opinion, we have assumed (i) the authenticity of
all such documents submitted to us as originals, (ii) the due authorization,
execution and delivery by the Administrative Agent and the Banks of the Loan
Documents to which they are parties, (iii) that each of the Loan Parties has the
corporate power, and has taken all necessary corporate action to authorize it,
to execute, deliver and perform each of the Loan Documents to which it is a
party, (iv) that the Loan Documents have been duly executed and delivered by
each of the Loan Parties and (v) that the execution, delivery and performance in
accordance with their respective terms by each of the Loan Parties of the Loan
Documents to which it is a party do not and will not (A) require any
Governmental Approval or any other consent or approval, other than Governmental
Approvals and other consents or approvals that have been obtained, are final and
not subject to review or collateral attack and are in full force and effect, or
(B) violate or conflict with, result in a breach of, or constitute a default
under (1) any Contract to which any of the Loan Parties is a party or by which
it or its properties may be bound or (2) any Applicable Law referred to in
clause (ii)(B) or (C) of the definition thereof contained in the Credit
Agreement.
Based upon the foregoing, and subject to the qualifications and limitations
set forth herein, we are of the opinion that the Loan Documents are legal, valid
and binding obligations of the Loan Parties party thereto, enforceable against
such Loan Parties in accordance with their respective terms.
Our opinion above is subject to the following qualifications and
limitations:
(a) Our opinion is subject to the effect of applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance and other laws affecting the
enforcement of creditors' rights generally and to the effect of general
equitable principles (whether considered in a proceeding in equity or at law).
Such principles applied by a court might include a requirement that a creditor
act with reasonableness and good faith. Furthermore, a court may refuse to
enforce a covenant where a court deems such covenant to be violative of
applicable public policy.
(b) Our opinions are limited to the law of the State of New York and
the Federal law of the United States. Without limiting the generality of the
foregoing, we express no opinion as to the effect of the law of any jurisdiction
other than the State of New York wherein any Bank may be located or wherein
enforcement of the Loan Documents may be sought that limits the rates of
interest legally chargeable or collectable.
(c) Certain remedial provisions of the Security Agreements may be
unenforceable in whole or in part, but the inclusion of such provisions does not
affect the validity of any of the Security Agreements, and each of the Security
Agreements taken as a whole contains adequate provisions for enforcing the
obligations of the Loan Parties pursuant thereto and for the practical
realization of the benefits created thereby. In addition, certain remedial
provisions of the Security Agreements may be subject to procedural requirements
not set forth therein.
(d) Our opinion (to the extent it relates to the Security Agreements)
is also subject to the limitation that we express no opinion with respect to:
(i) the perfection or priority of the Security Interest;
(ii) each Loan Party's rights in or title to or legal or
beneficial ownership of any of the Collateral; and
(iii) the validity or enforceability of the Security Interest
except to the extent that the creation thereof is governed by Article 8 or 9 of
the Uniform Commercial Code as in effect on the date hereof in the State of New
York.
This opinion is intended for the sole benefit of the Administrative Agent
and the Banks and no other Person shall be entitled to rely hereon for any
purpose.
Very truly yours,
Schedule 3.02
SUBSIDIARIES LISTING
Existing Subsidiaries of Premiere Technologies, Inc. ("PTEK")
Jurisdiction of % Ownership by Premiere or
Subsidiary Organization Another Subsidiary Consolidated Significant
--------------------------------------------------------------------------------------------------------------
Premiere Florida, US 100% owned by PTEK Yes Yes
Communications, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite Systems, Inc. Delaware, US 100% owned by PTEK Yes Yes
--------------------------------------------------------------------------------------------------------------
Xpedite Systems Delaware, US 100% owned by Xpedite Yes Yes
Worldwide, Inc. Systems, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite Systems United Kingdom 100% owned by Xpedite Yes Yes
Holdings (UK) Limited Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite Systems Limited United Kingdom 100% owned by Xpedite Yes Yes
Systems Holdings (UK)
Limited
--------------------------------------------------------------------------------------------------------------
Voice-Tel Enterprises, Delaware, US 100% owned by PTEK Yes Yes
Inc.
--------------------------------------------------------------------------------------------------------------
VoiceCom Systems, Inc. Washington, US 100% owned by PTEK Yes Yes
--------------------------------------------------------------------------------------------------------------
American Missouri, US 100% owned by PTEK Yes Yes
Teleconferencing
Services, Ltd.
--------------------------------------------------------------------------------------------------------------
Xpedite Systems Canada, Canada, New Brunswick 100% owned by Xpedite Yes No
Inc. Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Vitel Scandinavia A/S Denmark 100% owned by Xpedite Yes No
Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
PT Transtelindo Tritamo Indonesia 80% owned by Xpedite Yes No
Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite Holdings GmbH Germany 100% owned by Xpedite Yes No
Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite Systems Switzerland 99.9% owned by Xpedite Yes No
Switzerland AG Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite International Australia 72% owned by Xpedite Yes No
Australia Pty Limited Systems Worldwide, Inc.
28% owned by Comwave AG
--------------------------------------------------------------------------------------------------------------
Jurisdiction of % Ownership by Premiere or
Subsidiary Organization Another Subsidiary Consolidated Significant
--------------------------------------------------------------------------------------------------------------
Xpedite Systems Korea South Korea 100% owned by Xpedite Yes No
Ltd. Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite International New Zealand 100% owned by Xpedite Yes No
New Zealand Pty Limited Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite Systems Japan, Japan 100% owned by Xpedite Yes No
Inc. Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Xpedite Taiwan Ltd. Taiwan 99.9% owned by Xpedite Yes No
Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Comvave GmbH Germany 100% owned by Comwave AG Yes No
but no shares outstanding
--------------------------------------------------------------------------------------------------------------
Xpedite Systems SA France 18.8% owned by Xpedite No No
Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Comwave UK Ltd. United Kingdom 100% owned by Comwave AG Yes No
--------------------------------------------------------------------------------------------------------------
Vitel Limited United Kingdom 100% owned by Xpedite Yes No
Systems Holdings (UK)
Limited
--------------------------------------------------------------------------------------------------------------
Xpedite International Hong Kong 99.9% owned by Vitel Yes No
(HK) Ltd. Limited*
--------------------------------------------------------------------------------------------------------------
Xpedite Malaysia Sdn Bhd Malaysia 99.9% owned by Xpedite Yes No
International (HK) Ltd.*
--------------------------------------------------------------------------------------------------------------
Xpedite Global Singapore 50% owned by Xpedite No No
Communications Pte. International (HK) Ltd.
--------------------------------------------------------------------------------------------------------------
Xpedite Systems GmbH Germany 41% owned by APA Expert Yes No
Beteiligungsgesellschaft
mbH; 59% owned by
Xpedite Systems
Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Transmit International United Kingdom 100% owned by Xpedite Yes No
Limited Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Connaught Commercial United Kingdom 100% owned by Xpedite Yes No
Services Limited Systems Worldwide, Inc.
--------------------------------------------------------------------------------------------------------------
Voice-Tel Canada Limited Canada 100% owned by PTEK Yes No
--------------------------------------------------------------------------------------------------------------
Jurisdiction of % Ownership by Premiere or
Subsidiary Organization Another Subsidiary Consolidated Significant
--------------------------------------------------------------------------------------------------------------
Voice-Tel Pty Ltd. Australia, New 100% owned by Voice-Tel Yes No
Zealand Enterprises, Inc.
--------------------------------------------------------------------------------------------------------------
Voice Partners Company Ohio, US General Partnership - Yes No
Premiere Communications,
Inc. and Voice-Tel
Enterprises, Inc.,
General Partners
------------------------------------------------------------------------------------------------------------
Voice-Tel Network Delaware, US PTEK and Voice-Tel Yes No
Limited Partnership Enterprises, Inc. Limited
Partners
------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc. Georgia, US 100% owned by PTEK Yes No
------------------------------------------------------------------------------------------------------------
PCI Acquisition Corp. Georgia, US 100% owned by PTEK No No
------------------------------------------------------------------------------------------------------------
EBIS Communications, Georgia, US 100% owned by PTEK No No
Inc.
------------------------------------------------------------------------------------------------------------
Charp-Tel Enterprises, Rhode Island, US 100% owned by PTEK No No
Inc.
------------------------------------------------------------------------------------------------------------
* Shares not owned by local directors for statutory reasons.
Schedule 3.03
REQUIRED CONSENTS AND GOVERNMENT APPROVALS
None.
Schedule 3.05
Material Litigation
See attached listing.
Schedule 3.10
-------------
Schedule of Environmental Matters
None.
Schedule 4.03
-------------
FORM OF SUBSIDIARY GUARANTY SUPPLEMENT
Amended and Restated Credit Agreement, dated as of December 16, 1998,
----------------------------------------------------------------------
among Xpedite Systems, Inc. and Xpedite Systems Holdings (UK)
-------------------------------------------------------------
Limited, as Borrowers, the Guarantors party thereto, the Banks party
--------------------------------------------------------------------
thereto, NationsBank, N.A., as Documentation Agent, and The Bank of
-------------------------------------------------------------------
New York, as Administrative Agent (the "Credit Agreement")
----------------------------------------------------------
Reference is made to the Credit Agreement as defined above;
capitalized terms used herein and not otherwise defined herein shall have the
meanings given to such terms in the Credit Agreement. The undersigned hereby
agrees that, upon delivery hereof to the Administrative Agent referred to above,
the undersigned Subsidiary shall be and become a Guarantor for all purposes of
the Credit Agreement as fully and to the same extent as if it were an original
signatory thereto and, without limiting the foregoing, shall be deemed to have
made on the date hereof the representations and warranties set forth in Article
3 of the Credit Agreement.
[Name of Subsidiary]
By:
----------------------------
Name:
Title:
Dated:
--------------------------- Notice Address:
Attention:
Telephone:
Telecopy:
Schedule 4.05
Existing Indebtedness
Xpedite International Pty Limited has an overdraft facility of approximately
$38,000 with no outstanding value as of November 30, 1998.
Xpedite Systems, Inc. certain third party debt as shown on the attached Third
Party Debt Analysis.
Premiere Technologies, Inc. has $172,500,000 in 5 3/4% convertible bond debt @
$33.00/share.
Voice-Tel Enterprises, Inc., Voice-Tel network, L.P., Voice-Tel Pty Limited and
Voice-Tel of Canada, Ltd. have certain third party indebtedness as shown on the
attached schedule.
Expedite Systems, Inc. September 30, 1998
-----------------------------------------
Third Party Debt Analysis
Int.
Obligor Guarantor Lender US$ Local Due Date Rate Commitment Comments
-------------------------------------------------------------------------------------------------------------------------------
XSI XSWW BONY/Nations 62,000,000 12/16/98 L+1% 150,000,000
XSH XSL BONY/Nations 62,903,774 37,000,000(1) 12/16/98 (Pounds)L+1% Submit - (Pounds)
equivalent of $70M
Japan XSWW Mitsubishi Trust BK - - 9/30/98 2.8% - 3.6% 30,000,000
Commit Hypo Bank, Munich 120,726 201,564 2/28/99 7.0%
-----------
Total current 125,024,500
-----------
Commit Hypo Bank, Munich 2,198,356 3,670,375 5/30/00 6.5%
Commit Hypo Bank, LFA 404,288 675,000 6/30/02 7.5%
Commit Stadtsparkasse, Munich 718,735 1,200,000 3/30/07 4.75%
Commit Stadtsparkasse, Munich 278,510 465,000 4/30/02 8.00%
XSG Hypo Bank, Munich 1,796,838 3,000,000 4/30/01 4.8%
-----------
Total long-term 5,396,727
-----------
Other 3rd Party Notes (included in Acquisition liabilities)
Commit TBG-Bonn 2,153,210 3,595,000 12/31/05 6.00%
Commit Baypern Kapital 1,602,180 2,675,000 6/30/06 6.75%
Singapore ▇▇▇▇▇▇▇ ▇▇▇ 1,237,356 2,089,276 5/31/99 6.00%
-----------
4,992,746
-----------
Cap. Leases
Japan PBX (Nihon Lease) 21,773 2,975,427 12/27/00 2.47%
XSI Various 294,755
Singapore Hitachi leasing 158,496
-----------
475,024
-----------
-----------
Grand Total 135,888,997
===========
(1) As of December 14, 1998, local amount 35,000,000.
Schedule 4.06
Guarantees
A. Leased Properties:
------------------
1. Location: ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
---------------------------------------------------------
a. Landlord: MRC Properties
b. Tenant: Premier Communications, Inc.
c. Guarantor: Premier Technologies, Inc.
d. Square Footage: 4,500
e. Annual Rent: $36,000 (plus estimated operating expenses of 150% of
annual rent)
f. Commencement: 2/1/98 (Term: 5 years)
2. Location: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
-----------------------------------------------------------
a. Landlord: Market ▇▇▇▇▇▇ Urban Renewal
b. Tenant: Premier Communications, Inc.
c. Guarantor: Premier Technologies, Inc.
d. Square Footage: 21,180
e. Annual Rent: $189,000
f. Commencement: 3/1/99 (Term: 20 years)
3. Location: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
------------------------------------------------------------------
a. Landlord: Northwestern Capital Corporation
b. Tenant: Premier Communications, Inc.
c. Guarantor: Premier Technologies, Inc.
d. Square Footage: 8,673
e. Annual Rent: $158,282.28
f. Commencement: 11/1/98 (Term: 20 years)
4. Location: ▇▇▇▇▇ ▇ and Part ▇▇▇▇▇ ▇, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
----------------------------------------------------------------
Australia (Pending)
-------------------
a. Landlord: CIC Insurance Ltd.
b. Tenant: : Xpedite Systems, Inc.
c. Guarantor: Premier Technologies, Inc.
d. Square Footage: 1,300
e. Annual Rent: $500,000
f. Commencement: 2/1/99 (Term: 6 years)
5. Location: Canary ▇▇▇▇, One Canada Square, ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (Pending)
-----------------------------------------------------------------------
a. Landlord: CWE SPVc Ltd.
b. Tenant: Premier Communications, Inc.
c. Guarantor: Premier Technologies, Inc.
d. Square Footage: 8,803
e. Annual Rent: (Pounds) 198,465 (plus estimated operating expenses
of 33% of annual rent)
f. Commencement: 11/1/98 (Term: 15 years)
6. Location: Cranberry Office Commons, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇, New
-------------------------------------------------------------------
Jersey
------
a. Landlord: WHMBL Real Estate Ltd. Partners
b. Tenant: Xpedite Systems, Inc.
c. Guarantor: Premier Technologies, Inc.
d. Square Footage: 4,500
e. Annual Rent: $183,910.68 (plus estimated operating expenses of
33% of annual rent)
f. Commencement: 10/1/98 (Term: 3 years and 1 month)
B. Contracts:
----------
1. Type of Agreement: Carrier Services (Guaranty for Payment for
--------------------------------------------------------------
services to be rendered)
------------------------
a. Provider: Frontier Communications, Inc., d/b/a West Coast
Telecommunications, Inc.
b. Customer: Premiere Communications, Inc.
c. Guarantor: Premiere Technologies, Inc.
d. Annual Payment: $720,000 (estimated)
e. Commencement: 10/6/98 (Term: Annual/Evergreen)
SCHEDULE 4.07
Existing Liens
Customary restrictions contained in equipment leases entered into in the
ordinary course of business.
Liens in the form of capital leases or purchase money security interests in
various equipment of Premiere Technologies, Inc. and its subsidiaries not to
exceed $3,765,000.
Schedule 4.11
Restrictive Covenants
None.
Schedule 4.13
Existing Investments
Premiere Technologies, Inc. has investments in its subsidiaries (see Schedule
3.02).
Xpedite Systems, Inc. has investments in its subsidiaries (See Schedule 3.02).
Premiere Technologies, Inc. has investments as listed on the attached Schedule
of Existing Investments at 11/30/98.
Premiere Technologies, Inc. has a 1% ownership interest in ▇▇▇▇▇ Aviation, LLC.
Premiere Technologies, Inc. loan to ▇▇▇▇▇ Aviation, LLC in the amount of
$450,000.
Loans or advances outstanding on the date hereof or to be made after the date
hereof by Premiere Technologies, Inc. to various officers (or trusts or family
partnerships controlled by such officers) pursuant to employment agreements
existing on the date hereof between Premiere Technologies, Inc. and such
officers, the proceeds of which shall be used by such officers to finance the
exercise of various stock options. (Such advances made after the date hereof
pursuant to existing employment agreements shall be deemed to be existing
Investments for purposes of Section 4.13(d).) Such loans or advances are not
cash loans or advances.
Premiere Technologies, Inc. is currently in negotiations with VerticalOne in
anticipation of investing $700,000 in VerticalOne within the next 30 days.
Approximately $900,000 loan from Premiere Technologies, Inc. to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
Schedule 4.13
Premiere Technologies, Inc.
Schedule of Existing Investments at 11/30/98
Equity Investments
WebMD common stock (less than) 20% $ 4,200,000
USA Net common stock (less than) 20% 5,999,999
Imaging Technology common stock (less than) 20% 101,259
DigiTec 2000 common stock (less than) 20% 6,255,638
Intellivoice common stock (less than) 20% 2,000,000
Webforia common stock (less than) 20% 1,034,000
-----------
Total $19,590,896
Schedule 4.15
Existing Benefit Plans
Premiere Technologies, Inc.
Premiere Communications, Inc.
Voice-Tel Enterprises, Inc.
VoiceCom Systems, Inc.
Major Medical - CIGNA HealthCare
Dental - CIGNA Dental
Group Life Insurance - Phoenix Home Life Insurance Company
Voluntary Life AD&D - UNUM Insurance Company
Vision - CIGNA
Long Term Disability - UNUM Insurance Company
Short Term Disability - UNUM Insurance Company
Xpedite Systems, Inc.
Major Medical - Guardian Insurance Company
Dental - Guardian Insurance Company
Group Life Insurance - ▇▇▇▇ ▇▇▇▇▇▇ Insurance Company
Long Term Disability - ▇▇▇▇ ▇▇▇▇▇▇ Insurance Company
Short Term Disability - ▇▇▇▇ ▇▇▇▇▇▇ Insurance Company
American Teleconferencing Services, Ltd.
Major Medical - CIGNA Healthcare
Dental - Delta Dental
Group Life Insurance - Phoenix Home Life Insurance Company
Voluntary Life and AD&D - Life Insurance Company of
North America
Premiere Technologies, Inc. 401(k) Plan
Various 401(k) plans assumed by Premiere Technologies, Inc. in the acquisitions
of Xpedite Systems, Inc., Voice-Tel Enterprises, Inc. and VoiceCom Systems,
Inc.
Premiere Technologies, Inc. 1994 Stock Plan
Premiere Technologies, Inc. 1995 Amended and Restated Stock Plan
Premiere Technologies, Inc. 1998 Stock Plan
Xpedite Systems, Inc. 1993 Incentive Stock Option Plan
Xpedite Systems, Inc. 1996 Incentive Stock Option Plan
VoiceCom Holdings, Inc. 1985 Stock Option Plan
VoiceCom Holdings, Inc. 1995 Stock Option Plan
Non-Qualified and Incentive Stock Option Plan of Voice-Tel Enterprises, Inc.
Non-Qualified and Incentive Stock Option Plan of VTN, Inc.
Premiere Technologies, Inc. Stock Option Agreements with certain employees
Schedule 5.02(a)
Financial Statements
Premiere Technologies, Inc. Audited Financial Statement for the year ended
December 31, 1997.
Xpedite Systems, Inc. Audited Financial Statement for the year ended December
31, 1997.
Premiere Technologies, Inc. Form 10-Q, filed on November 16, 1998
Premiere Technologies, Inc. Form 10-Q, filed on August 14, 1998
Premiere Technologies, Inc. Form 10-Q, filed on May 15, 1998
Monthly financial statements for August 1998 for the following business
segments: Voice Messaging, Xpedite (US), ATS, and PTEK Enhanced Calling Card
Services.
Management projections for October dated September 29, 1998, October 12, 1998
and November 9, 1998.
Xpedite Systems, Inc. compliance packages for the period ending December 31,
1997, March 31, 1998, June 30, 1998 and September 30, 1998.
Schedule 10.10(a)
-----------------
NOTICE OF ASSIGNMENT
[Name and address
of each Borrower in accordance
with Section 10.01]
[Name and address
of each Guarantor in accordance
with Section 10.01]
[Name and address
of Administrative Agent in accordance with
Section 10.01]
Date:
Ladies and Gentlemen:
Reference is made to the Amended and Restated Credit Agreement, dated as
of December 16, 1998, among Xpedite Systems, Inc. and Xpedite Systems Holdings
(UK) Limited, as Borrowers, the Guarantors party thereto, the Banks listed on
the signature pages thereof, NationsBank, N.A., as Documentation Agent, and The
Bank of New York, as Administrative Agent (the "Credit Agreement"). The
undersigned hereby give notice pursuant to Section 10.10(a) of the Credit
Agreement that [name of Assignor] [(the "Assignor")]/1/ has made the following
assignment to [name of Assignee] [(the "Assignee")]/2/:
Rights and Obligations
Assigned:
Effective Date of
Assignment:
[The Assignee's Lending Offices and address for notices are as follows:
Domestic Lending Office:
Eurocurrency Lending Office:
Notice Address:]/3/
[The Assignor hereby requests that [each Borrower] [each Guarantor] [and
the Administrative Agent] consent to the assignment described above by signing a
copy of this letter in the space provided below and returning it to the
Assignor. Such consent shall release the Assignor from all of the obligations
described above as having been assigned to the Assignee.]/4/
[NAME OF ASSIGNOR]
By
--------------------------------
Name:
Title:
[NAME OF ASSIGNEE]
By
--------------------------------
Name:
Title:
Assignment and release consented to:/4/
XPEDITE SYSTEMS, INC.
By
-------------------------------
Name:
Title:
XPEDITE SYSTEMS HOLDINGS (UK) LIMITED
By
--------------------------------
Name:
Title:
[GUARANTORS]
By
-------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Administrative Agent
By
-------------------------------
Name:
Title:
---------------
1. Include definition if Footnote 4 material is to be included.
2. Include definition if Footnote 3 or Footnote 4 material is to be included.
3. Omit if the Assignee is a Bank.
4. Include the appropriate portion of the bracketed provision if (i) the
Assignor desires to be released from the assigned obligations, (ii) the consent
of the Borrowers and/or the Guarantors and/or the Administrative Agent is
required for such release and (iii) the Assignor has not otherwise obtained such
consents.
NOTE GRID
Amount of Amount of
Notation
Date Loan Principal Repaid
---- ---- ----------------
Made By
-------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
Schedule 11.01(a)
Subsidiary Guarantors
Subsidiaries of Premiere Technologies, Inc. that are Guarantors as of the
Agreement Date:
Premiere Communications, Inc.
Xpedite Systems, Inc.
Xpedite Systems Worldwide, Inc.
Xpedite Systems Holdings (UK) Limited
Xpedite Systems Limited
Voice-Tel Enterprises, Inc.
VoiceCom Systems, Inc.
American Teleconferencing Services, Ltd.
Schedule 11.01(b)
Securities and Exchange Commission Filings
Premiere Technologies, Inc. has filed the following reports with the Securities
and Exchange Commission:
Form 10-Q, filed on November 16, 1998
Form 10-Q, filed on August 14, 1998
Rule 424B3 Prospectus, filed on August 7, 1998
Form 8-K, filed on July 31, 1998
Schedule 13G/A, filed on July 31, 1998
Schedule 14A Definitive Proxy, filed on July 8, 1998
Form 8-A12G, filed on June 26, 1998
Form 8-K, filed on June 26, 1998
Schedule 13G/A, filed June 22, 1998
Form 8-K, filed on June 11, 1998
Rule 424B3 Prospectus, filed on June 5, 1998
Rule 424B3 Prospectus, filed on May 27, 1998
Rule 424B3 Prospectus, filed on May 18, 1998
Form 10-Q, filed on May 15, 1998
Form 8-K, filed on May 15, 1998
Form S-3 Registration Statement, filed on May 11, 1998
Form S-8 Registration Statement, filed on May 11, 1998
Form 8-K, filed on April 28, 1998
Form 10-K/A, filed on April 22, 1998
Form S-3 Registration Statement, filed on April 22, 1998
Form 8-K/A, filed on April 13, 1998
Form S-3 Registration Statement, filed on April 13, 1998
Rule 424B3 Prospectus, filed on April 9, 1998
Form 10-K, filed on March 31, 1998
Form 8-K, filed on March 13, 1998
Rule 424B3 Prospectus, filed on March 6, 1998
Form 8-K, filed on February 20, 1998
Schedule 13G, filed on February 12, 1998
Rule 424B3 Prospectus, filed on February 26, 1998
Form S-4 Registration Statement, filed on January 28, 1998
Form 8-K/A, filed on January 27, 1998
Rule 424B3 Prospectus, filed on January 15, 1998
Rule 424B3 Prospectus, filed on January 2, 1998
Xpedite Systems, Inc. has filed the following reports with the Securities and
Exchange Commission:
Schedule 13D/A, filed on April 2, 1998
Form 15-12G, filed on March 4, 1998
Schedule 13D, filed on February 17, 1998
Schedule 13D/A, filed on February 6, 1998
Schedule 13D/A, filed on January 12, 1998
Schedule 11.01(c)
-----------------
CALCULATION OF ADDITIONAL STERLING COST
---------------------------------------
1 The Additional Sterling Cost for any period shall (subject to paragraph 5
below) be calculated in accordance with the following formula:
BY + L(Y-X) + S(Y-Z) per cent per annum
--------------------
100 - (B+S)
where on the day of application of the formula:
B is the percentage of the Administrative Agent's eligible liabilities
which the Bank of England then requires the Administrative Agent to
hold on a non-interest-bearing deposit account in accordance with its
cash ratio requirements;
Y is the rate at which Sterling deposits are offered by the
Administrative Agent to leading banks in the London Interbank Market
at or about 11 a.m. on that day for the relevant period;
L is the percentage of eligible liabilities which (as a result of the
requirements of the Bank of England) the Administrative Agent
maintains as secured money with members of the London Discount Market
Association or in certain marketable or callable securities approved
by the Bank of England, which percentage shall (in the absence of
evidence that any other figure is appropriate) be conclusively
presumeed to be 5 per cent;
X is the rate at which secured Sterling investments may be placed by the
Administrative Agent with members of the London Discount Market
Association at or about 11 a.m. on that day for the relevant period
or, if greater, the rate at which Sterling bills of exchange (of a
tenor equal to the duration of the relevant period) eligible for
rediscounting at the Bank of England can be discounted in the London
Discount Market at or about 11 a.m. on that day;
S is the percentage of the Administrative Agent's eligible liabilities
which the Bank of England requires the Administrative Agent to place
as a special deposit; and
Z is the interest rate expressed as a percentage per annum allowed by
the Bank of England on special deposits.
2 For the purposes of this schedule 5:
(a) "eligible liabilities" and "special deposits" have the meanings given
to them at the time of application of the formula by the Bank of
England; and
(b) "relevant period" in relation to each period for which Additional
Sterling Cost falls to be calculated means:
(i) if it is 3 months or less, that period; or
(ii) if it is more than 3 months, 3 months.
3 In the application of the formula, B, Y, L, X, S and Z are included in the
formula as figures and not as percentages, e.g. if B = 0.5 per cent and Y =
15 per cent BY is calculated as 0.5 x 15.
4 The formula shall be applied on the first day of each relevant period.
Each amount shall be rounded up to the nearest four decimal places.
5 If the Administrative Agent (acting reasonably) determines that a change in
circumstances has rendered, or will render, the formula inappropriate, the
Administrative Agent (after consultation with the Banks) shall notify the
Borrowers of the manner in which the Additional Cost will subsequently be
calculated. The manner of calculation so notified by the Administrative
Agent shall, in the absence of manifest error, be binding on all parties.
2
EXHIBIT A
[XPEDITE SYSTEMS, INC.]/[XPEDITE SYSTEMS HOLDINGS (UK) LIMITED]
NOTE
_______________, 19__
FOR VALUE RECEIVED, [NAME OF BORROWER] (the "Borrower") hereby promises to
pay to the order of __________ (the "Bank"), for the account of its applicable
Lending Office, the unpaid principal amount of each Loan made by such Bank to
the Borrower under the Credit Agreement referred to below, on the dates and in
the amounts specified in Section 1.04 of such Credit Agreement, and to pay
interest on the principal amount of each such Loan on the dates and at the rates
specified in Section 1.03 of such Credit Agreement. All payments due the Bank
hereunder shall be made to the Bank at the place, in the type of money and funds
and in the manner specified in Section 1.11 of such Credit Agreement.
Each holder hereof is authorized to endorse on the grid attached hereto, or
on a continuation thereof, each Loan of the Bank and each payment, with respect
thereto, provided that the failure of the Bank to make any such endorsement
shall not affect the obligations of the Borrower hereunder or under such Credit
Agreement.
Presentment, demand, protest, notice of dishonor and notice of intent to
accelerate are hereby waived by the undersigned.
This Note evidences Loans made under, and is entitled to the benefits of,
the Amended and Restated Credit Agreement, dated as of December 16, 1998, among
the Borrower, [Xpedite Systems, Inc.][Xpedite Systems Holdings (UK) Limited],
the Guarantors party thereto, the Banks listed on the signature pages thereof,
NationsBank, N.A., as Documentation Agent, and The Bank of New York, as
Administrative Agent, as the same may be amended from time to time (the "Credit
Agreement"). Reference is made to such Credit Agreement, as so amended, for
provisions relating to the prepayment and the acceleration of the maturity
hereof.
i
This Note shall, pursuant to New York General Obligations Law Section 5-
1401, be governed by the law of the State of New York.
[XPEDITE SYSTEMS, INC.]
[XPEDITE SYSTEMS HOLDINGS (UK) LIMITED]
By
------------------------------------
Name:
Title:
ii
Exhibit B
================================================================================
SECURITY AGREEMENT
Dated as of ___________, 199_
Between
[PLEDGOR]
and
THE BANK OF NEW YORK,
as Secured Party
================================================================================
TABLE OF CONTENTS
Page
----
ARTICLE I
SECURITY INTEREST
Section 1.01 Grant of Security Interest..................................... 1
Section 1.02 Validity and Priority of Security Interest; Authorized Action.. 1
Section 1.03 Pledgor Remains Obligated; Secured Party and Other Principals
Not Obligated.................................................. 2
Section 1.04 Proceeds of Collateral......................................... 2
Section 1.05 Limitation of Pledgor's Obligations............................ 2
ARTICLE II
CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 2.01 Collateral.................................................... 3
(c)........................................................... 4
Section 2.02 Consent to Pledge; Control Letters............................ 5
Section 2.03 New Accounts.................................................. 5
Section 2.04 Change of Jurisdiction........................................ 5
Section 2.05 Jurisdictions of Securities and Commodity Intermediaries...... 6
Section 2.06 Requirement of Materially Adverse Effect...................... 6
ARTICLE III
EVENT OF DEFAULT
Section 3.01 Application of Proceeds....................................... 6
Section 3.02 .............................................................. 7
(a) Use of Premises and Intellectual Property................ 7
(b) Directors, Officers and Employees........................ 7
(c) Power of Sale............................................ 7
(d) Foreclosure.............................................. 7
(e) Receiver................................................. 7
(f) Collection of Collateral Proceeds by Pledgor............. 7
(g) Notification............................................. 8
(h) Secured Party's Rights with Respect to Proceeds and
Other Collateral......................................... 8
(i) Enforcement by Secured Party............................. 8
(j) Adjustments.............................................. 8
(k) Warehousing.............................................. 8
Section 3.03 Securities and Instrument Collateral.......................... 8
(a) Registration and Indemnification......................... 8
(b) Restricted Offering Dispositions......................... 9
ARTICLE IV
MISCELLANEOUS
Section 4.01 Expenses of Pledgor's Agreements and Duties.............................. 9
Section 4.02 Secured Party's Right to Perform on Pledgor's Behalf..................... 9
Section 4.03 Secured Party's Right to Use Agents and to Act in Name of Pledgor........ 9
Section 4.04 No Interference, Compensation or Expense................................. 9
Section 4.05 Limitation of Obligations with Respect to Collateral..................... 9
Section 4.06 Rights of Secured Party under Uniform Commercial Code and Applicable Law. 10
Section 4.07 Waivers of Rights Inhibiting Enforcement................................. 10
Section 4.08 Power of Attorney........................................................ 10
Section 4.09 Termination of Security Interest......................................... 11
Section 4.10 Notices and Deliveries................................................... 11
(a) Notices and Materials Other than Collateral.......................... 11
(b) Collateral........................................................... 13
Section 4.11 Governing Law............................................................ 13
Section 4.12 LIMITATION OF LIABILITY.................................................. 13
Section 4.13 Counterparts............................................................. 14
Section 4.14 Entire Agreement......................................................... 14
Section 4.15 Successors and Assigns................................................... 14
Section 4.16 Delivery of Opinions Authorized.......................................... 14
ARTICLE V
INTERPRETATION
Section 5.01 Definitional Provisions.................................................. 14
(a) Certain Terms Defined by Reference................................... 14
(b) Other Defined Terms.................................................. 14
Section 5.02 Other Interpretive Provisions............................................ 19
Section 5.03 Representations and Warranties........................................... 21
Section 5.04 Captions................................................................. 21
Schedule 1.02 Schedule of Required Action
Schedule 1.02(a) Form of UCC-1 Financing Statement
Schedule 1.02(c) Form of Financial Intermediary Agreement
Schedule 1.02(d)-A Memorandum of Security Agreement; Patents
Schedule 1.02(d)-B Memorandum of Security Agreement; Trademarks
Schedule 1.02(d)-C Memorandum of Security Agreement; Copyrights
Schedule 1.02A Schedule of Permitted Liens
Schedule 2.01(c)(v) Schedule of Initial Securities and Instrument Collateral
Schedule 2.01(c)(vi) Form of Security Agreement Questionnaire
Schedule 5.01(a)-1 Securities Account Control Agreement
Schedule 5.01(a)-2 Commodity Account Control Agreement
2
SECURITY AGREEMENT
Dated as of December 16, 1998
In consideration of the execution and delivery of the Credit Agreement,
dated as of December 17, 1997, as amended and restated as of the date hereof, by
the Banks listed on the signature pages thereof and The Bank of New York, as
Administrative Agent, [PLEDGOR], a [JURISDICTION] corporation, hereby agrees
with THE BANK OF NEW YORK, as Secured Party, as follows (with certain terms used
herein being defined in Article 5):
ARTICLE 12
SECURITY INTEREST
-----------------
Section 12.01 Grant of Security Interest.
--------------------------
To secure the payment, observance and performance of the Secured
Obligations, the Pledgor hereby mortgages, pledges and assigns the Collateral to
the Secured Party, and grants to the Secured Party a continuing security
interest in, and a continuing lien upon, the Collateral.
Section 12.02 Validity and Priority of Security Interest; Authorized
------------------------------------------------------
Action.
------
(a) The Pledgor agrees that the Security Interest shall, and that the
Pledgor shall take all action necessary or desirable, or that the Secured Party
may reasonably request, including the actions specified on Schedule 1.02, (a) to
-------------
ensure that the Security Interest shall, at all times be valid, perfected and
enforceable against the Pledgor and all third parties, in accordance with the
terms hereof, as security for the Secured Obligations, and that neither the
Collateral, including, if the Collateral includes any securities accounts or
commodity accounts, any financial asset or commodity contract carried therein,
nor, if the Collateral includes any securities entitlements, any financial asset
subject thereto, shall at any time be subject to (x) control by any Person other
than the Secured Party or (y) any Lien, other than a Permitted Lien, that is
prior to, on a parity with or junior to such Security Interest, except that,
unless an Event of Default exists, this Section 1.02, shall not require the
continuation of the perfection of the Security Interest in Collateral that the
Pledgor is entitled to, and does, receive or retain pursuant to Section 1.04,
(b) to protect and preserve the Collateral and (c) to protect and preserve, and
to enable the exercise or enforcement of, the rights of the Secured Party
therein and hereunder and under the other Collateral Documents.
(b) (i) The Secured Party is hereby authorized to file one or more
financing or continuation statements or amendments thereto with respect to the
Collateral without the signature of or in the name of the Pledgor. A carbon,
photographic or other reproduction of this Agreement or of any financing
statement filed in connection with this Agreement shall be sufficient as a
financing statement.
(ii) Each (A) issuer of an uncertificated security registered in the
name of the Pledgor, (B) each securities intermediary maintaining a security
account for the Pledgor and (C) each commodity intermediary maintaining a
commodity account for the Pledgor, in each case to the extent it constitutes
Collateral, is hereby authorized and directed by the Pledgor to disclose to
the Secured Party, at any time and from time to time, all agreements pursuant to
which any such issuer, securities intermediary or commodity intermediary has
agreed, without further consent by the Pledgor, to (1) comply with, (aa) in the
case of any such issuer, instructions with respect to such a security originated
by a Person other than the Pledgor and (bb) in the case of any such securities
intermediary, entitlement orders originated by a Person other than the Pledgor
and (2) apply, in the case of any such commodity intermediary, any value
distributed on account of any commodity contract carried in such commodity
account as directed by the Secured Party.
Section 12.03 Pledgor Remains Obligated; Secured Party and Other
--------------------------------------------------
Principals Not Obligated.
------------------------
The grant by the Pledgor to the Secured Party of the Security Interest
shall not (a) relieve the Pledgor of any Liability to any Person under or in
respect of any of the Collateral or (b) impose on the Secured Party or the other
Principals any such Liability or any Liability for any act or omission on the
part of the Pledgor relative thereto.
Section 12.04 Proceeds of Collateral.
----------------------
(a) Except during an Event of Default, the Pledgor shall be entitled
to receive and retain all Account Proceeds, Ordinary Distributions and proceeds
of dispositions of Collateral not prohibited under Section 4.09 of the Credit
Agreement.
(b) Subject to the Pledgor's rights under Section 1.04(a), the Secured
Party shall be entitled to receive and retain all proceeds of Collateral and all
Distribution Collateral. The Secured Party is hereby irrevocably authorized,
upon the occurrence and continuation of an Event of Default, either in the name
and on behalf of the Pledgor or in its own name, to endorse and deposit, or
cause to be deposited, for collection, present, draw upon or under, or otherwise
take action to realize upon, all instruments, chattel paper, securities, letters
of credit and documents constituting part of the Collateral for the purpose of
holding and disposing of the proceeds thereof in accordance with the terms
hereof.
Section 12.05 Limitation of Pledgor's Obligations.
-----------------------------------
It is the intention of the Pledgor and the Secured Party that the
obligations of the Pledgor under this Agreement shall be in, but not in excess
of, the maximum amount permitted by Applicable Law. To that end, but only to
the extent such obligations would otherwise be avoidable, the obligations of the
Pledgor under this Agreement shall be limited to the maximum amount that, after
giving effect to the incurrence thereof, would not render the Pledgor insolvent
or unable to pay its debts as they mature or leave the Pledgor with an
unreasonably small capital. The need for any such limitation shall be
determined, and any such needed limitation shall be effective, at the time or
times that the Pledgor is deemed, under Applicable Law, to incur obligations
thereunder. This Section 1.05 is intended solely to preserve the rights of the
Secured Party under this Agreement to the maximum extent permitted by Applicable
Law, and neither the Pledgor nor any other Person shall have any right under
this Section 1.05 that it would not otherwise have under Applicable Law. For
the purposes of this Section 1.05, "insolvency", "unreasonably small capital"
and "inability to pay debts as they mature" shall be determined in accordance
with Applicable Law.
ARTICLE 13
CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS
-------------------------------------------------
2
The Pledgor represents, warrants and covenants as follows:
Section 13.01 Collateral.
----------
(a) Except as permitted under the Credit Agreement, the Pledgor shall:
(i) be the sole owner of each and every item of Collateral free from any right,
title or interest of any third Person (other than the holder of a Permitted
Lien), (ii) defend the Collateral against the claims and demands of all third
Persons (other than holders of Permitted Liens), (iii) in the case of tangible
property constituting part of the Collateral, (A) properly maintain such
property and keep it in good order and repair, subject to normal wear and tear,
and (B) keep such property fully insured with responsible companies of
recognized national standing or otherwise acceptable to the Secured Party
against such risks as such Collateral may be subject to under policies
containing loss payable clauses naming the Secured Party as loss payee, (iv)
comply with (A) all Applicable Laws relating to or affecting the Collateral and
(B) the terms of all deeds and leases, mortgages and other Contracts relating to
premises where any Collateral is located and (C) all license and franchise
agreements and other Contracts pertaining to any of the Collateral, (v) duly
fulfill all obligations on its part to be fulfilled under or in connection with
all Receivables and General Intangibles and do nothing intentionally to impair
the security interests of the Secured Party therein, (vi) subject, during an
Event of Default, to the Secured Party's rights under Sections 3.02(f) and
3.02(i) hereof, endeavor to collect from the Collateral Debtor of each
Collateral Obligation when due all amounts owing thereunder, except that this
clause (vi) shall not require the Pledgor to take any action not in accordance
with its customary collection practices, (vii) maintain its chief executive
office and, if different from its chief executive office, each office where the
books and records relating to any Receivables or General Intangibles are kept,
only at and shall keep all tangible property constituting part of the Collateral
only at or in transit to, (A) in the case of such chief executive office or
other office, the location thereof specified in, and in the case of any such
tangible property constituting part of the Collateral, any of the respective
locations therefor specified in, the Questionnaire, or (B) in any case, a
location of which the Secured Party has received not less than 30 days prior
written notice and which is located within one of the States of the United
States, (viii) give the Secured Party (A) prompt notice of (1) the location of
each new place of business opened by the Pledgor and (2) each new location of
any Collateral, (ix) deliver to the Secured Party all certificates and
instruments evidencing Securities and Instrument Collateral, duly endorsed in
favor of the Secured Party or accompanied by stock powers duly executed in
blank, in either case as reasonably requested by the Secured Party and (x)
provide the Secured Party with such other information as to the Collateral as
the Secured Party may reasonably request.
(b) Except as permitted by the Credit Agreement, the Pledgor shall not
(i) sell, lease, transfer or otherwise dispose of any Collateral, including, if
the Collateral includes any securities accounts or commodity accounts, any
financial asset or commodity contract carried therein, or, if the Collateral
includes any security entitlements, any financial asset subject thereto, or any
interest therein or thereunder, including any license or sublicense, except for,
in the case of General Intangibles, the grant of any license or sublicense
therein in the ordinary course of business; or in the case of Inventory, sales
of Inventory in the ordinary course of business; or in the case of Machinery and
Equipment, sales of any thereof that Pledgor intends to no longer use or is no
longer useful in the operation of the Pledgor's business, (ii) rescind or cancel
any obligation evidenced by any Receivable or General Intangible or modify any
term thereof or make any adjustment with respect thereto or extend or renew the
same, or compromise or settle any dispute, claim, suit or legal proceeding
relating thereto, except in the ordinary course of
3
business and subject, during an Event of Default, to the rights of the Secured
Party under Sections 3.02(i) and 3.02(j), (iii) (A) enter into any Contract
providing for any deduction from any Receivable that is an Account except for
agreements made in the ordinary course of business, or (B) subject to the
penultimate sentence of Section 2.01(d), cancel or terminate, or amend, modify
or waive in any manner materially adverse to the holder thereof any provision
of, any Securities and Instrument Collateral that constitutes Indebtedness, or
(C) subject to the penultimate sentence of Section 2.01(d), enter into or permit
to exist any restriction with respect to any rights under any Securities and
Instrument Collateral, or any other such asset referred to in clause (B), other
than restrictions arising under the Loan Documents or the Premiere Merger
Agreement, (iv) without giving at least 30 days' prior written notice to the
Secured Party, (A) change its name, identity or corporate structure or (B) do
business under any name, trade name or trade style not listed on the
Questionnaire, or (v) agree with any securities intermediary that such
securities intermediary may grant any Lien on any financial asset with respect
to which the Pledgor is an entitlement holder.
(c) (i) Each Receivable that is an Account (A) is and shall at all
times represent the legal, valid and binding obligation of its Collateral Debtor
and, subject to clause (B)(1), is and shall at all times be enforceable in
accordance with its terms, (B) shall at no time be subject to (1) any defense,
setoff or counterclaim other than one arising in the ordinary course of
business, (2) any agreement prohibiting assignment or requiring notice of or
consent to assignment, or (3) any stamp or other Tax, (C) shall comply with all
Applicable Laws, and (D) shall be genuine and in all respects what it purports
to be and shall arise out of a bona fide transaction.
(ii) All Inventory (A) is and at all times shall be in good condition,
(B) meets and at all times shall meet all governmental standards applicable
thereto or to its manufacture, use or sale, and (C) is and shall at all times be
currently either usable or saleable in the ordinary course of the Pledgor's
business.
(iii) All Machinery and Equipment (A) is and shall at all times be in
good operating condition and repair, normal wear and tear excepted, and (B)
complies and is operated and shall at all times comply and be operated in
compliance with all Applicable Laws.
(iv) All General Intangibles that constitute Intellectual Property
shall at all times be subsisting, valid and enforceable against third Persons.
(v) (A) All Securities and Instrument Collateral is and at all times
shall be duly authorized, validly issued, fully paid and non-assessable, and (B)
as of the Agreement Date, the shares of capital stock or other units of
ownership interests that constitute Securities and Instrument Collateral listed
on Schedule 2.01(c)(v) represent the respective percentages of the outstanding
shares of such capital stock or other units of ownership interests that are set
forth on such Schedule.
(vi) The Questionnaire is, as of the Agreement Date, complete and
correct in all material respects.
4
(d) The Secured Party shall have the right, during an Event of
Default, (i) in the name of the Secured Party, in the name and on the stationery
of the Pledgor or any such other name as the Secured Party may select, to verify
the validity, amount or any other matter relating to any Receivable or General
Intangible by mail, telegram, telephone or any other means, (ii) after a notice
to the Pledgor that it intends to exercise its rights under this Section
2.01(d)(ii), to transfer into or register in its name or the name of its nominee
any or all of the Securities and Instrument Collateral and, in its own or the
Pledgor's name, to exercise any and all rights, powers and privileges with
respect to the Securities and Instrument Collateral, and with the same force and
effect, as could the Pledgor. Unless and until the Secured Party exercises its
rights under Section 2.01(d)(ii), the Pledgor may, with respect to any of the
Securities and Instrument Collateral, vote and give consents, ratifications and
waivers with respect thereto, except to the extent that any such action would
(x) be for a purpose that would constitute or result in an Event of Default or
(y) in the reasonable judgment of the Required Banks, detract from the value
thereof as Collateral, and from time to time, upon request from the Pledgor, the
Secured Party shall deliver to the Pledgor suitable proxies confirming the right
of the Pledgor to cast such votes, consents, ratifications and waivers. Each
such request from the Pledgor shall constitute a Representation and Warranty by
the Pledgor hereunder that no Event of Default exists or would result therefrom.
Section 13.02 Consent to Pledge; Control Letters.
----------------------------------
(a)(i) As of the Agreement Date, the Pledgor has not agreed with any
securities intermediary that such securities intermediary may grant any Lien on
any financial asset with respect to which the Pledgor is an entitlement holder.
(ii) No financial asset with respect to which the Pledgor is the
entitlement holder is subject to any Lien other than the Security Interest.
(b) As of the Agreement Date, the Pledgor is not a party to any
Control Letter or similar agreement relating to any investment property that
constitutes Collateral, except for those to which the Secured Party is a party.
Section 13.03 New Accounts.
------------
The Pledgor shall give to the Secured Party not less than 15 days' prior
notice of the opening of each new securities account or commodity account that
itself will constitute Collateral, or to which financial assets are to be
credited (or with respect to which there will be security entitlements), or in
which commodity contracts are to be carried, that constitute or are to
constitute Collateral, specifying, as appropriate, the securities intermediary
or the commodity intermediary maintaining such account, the account number and
the jurisdiction of each such Person, determined in accordance with, in the case
of a securities intermediary, Section 8-110(e) of the Uniform Commercial Code
and, in the case of a commodity intermediary, Section 9-103(6)(e) of the Uniform
Commercial Code.
Section 13.04 Change of Jurisdiction.
----------------------
Promptly upon its obtaining knowledge thereof, the Pledgor shall give to
the Secured Party notice of any change of the jurisdiction of a securities
intermediary or a commodity intermediary maintaining a securities account or
commodity account that itself constitutes Collateral, or to which financial
assets are credited (or with respect to which there are security entitlements),
or in which commodity contracts are carried, that constitute Collateral,
specifying such new jurisdiction.
5
Section 13.05 Jurisdictions of Securities and Commodity Intermediaries.
--------------------------------------------------------
(a) The Pledgor shall not, after the Agreement Date, enter into any
Contract with any securities intermediary or with any commodity intermediary
with respect to any investment property that is or is to be Collateral, unless
such Contract or another agreement specifies effectively with respect to such
investment property that such securities intermediary's or commodity
intermediary's jurisdiction shall be the State of New York.
(b) The Pledgor shall use its best effort to cause each Contract with
each securities intermediary or commodities intermediary in effect on the
Agreement Date that relates to investment property that is or is to be
Collateral, and that does not so provide, to be amended so that thereafter such
Contract shall specify effectively with respect to such investment property that
such securities intermediary's or commodity intermediary's jurisdiction shall be
the State of New York. If in any case such an amendment shall not be effective
within 30 days of the Agreement Date, the Pledgor shall terminate such Contract,
and enter into a new Contract relating to such investment property with another
securities intermediary or commodity intermediary, as the case may be, which
does effectively so provide.
Section 13.06 Requirement of Materially Adverse Effect.
----------------------------------------
Clauses (i), (ii), (iii), (iv), (v), (vi) and (viii) of Section 2.01(a),
clauses (i), (ii), (iii) and (iv)(B) of Section 2.01(b), and clauses (i), (ii),
(iii) and (iv) of Section 2.01(c), shall not apply in any circumstances where
noncompliance, together with all other noncompliances with this Agreement will
not have a Materially Adverse Effect on the Collateral taken as a whole.
ARTICLE 14
EVENT OF DEFAULT
----------------
During an Event of Default, and in each such case:
(A) Proceeds.
--------
Section 14.01 Application of Proceeds.
-----------------------
All cash proceeds received by the Secured Party upon any sale of,
collection of, or other realization upon, all or any part of the Collateral and
all cash held by the Secured Party as Collateral shall, subject to the Secured
Party's right to continue to hold the same as cash Collateral, be applied as
follows:
First: To the payment of all out-of-pocket costs and expenses incurred in
connection with the sale of or other realization upon Collateral, including
attorneys' fees and disbursements;
Second: To the payment of the Secured Obligations owing to the Secured
Party in such order as the Secured Party may elect (with the Pledgor remaining
liable for any deficiency);
Third: To the payment of the other Secured Obligations ratably in
accordance with the amounts owed to each holder thereof and in such order as the
Required Banks may elect (with the Pledgor remaining liable for any deficiency);
and
6
Fourth: To the extent of the balance (if any) of such proceeds, to the
payment to the Pledgor, subject to Applicable Law and to any duty to pay such
balance to the holder of any subordinate Lien in the Collateral.
(A) Remedies.
--------
Section 14.02
(a) Use of Premises and Intellectual Property.
-----------------------------------------
The Secured Party may (i) enter the Pledgor's premises and, until
the Secured Party completes the enforcement of its rights in the Collateral,
take exclusive possession of such premises or place custodians in exclusive
control thereof, remain on such premises and use the same and all machinery and
equipment for the purpose of (A) completing any work in process, preparing
Collateral for disposition and disposing thereof and (B) collecting Collateral
Obligations, and (ii) in the exercise of its rights under this Agreement, use
the Pledgor's rights in, to and under all patents, trademarks and copyrights and
licenses and sublicenses thereof, to the extent of the rights of the Pledgor
therein, and the Pledgor hereby grants a license to the Secured Party for such
purpose, subject to the consent, if required, of any licensor, franchisor or
other third Person.
(b) Directors, Officers and Employees.
---------------------------------
The Secured Party may retain the Pledgor's directors, officers and
employees, in each case upon such terms as the Secured Party and any such Person
may agree, notwithstanding the provisions of any employment, confidentiality or
non-disclosure agreement between any such Person and the Pledgors, and the
Pledgor hereby waives its rights under any such agreement and consents to each
such retention.
(c) Power of Sale.
-------------
The Secured Party (i) may sell the Collateral in one or more parcels
at public or private sale, at any of its offices or elsewhere, for cash, on
credit or for future delivery, and at such price or prices and upon such other
terms as it may deem commercially reasonable, (ii) shall not be obligated to
make any sale of Collateral regardless of notice of sale having been given, and
(iii) may adjourn any public or private sale from time to time by announcement
at the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned.
(d) Foreclosure.
-----------
The Secured Party, instead of exercising the power of sale conferred
upon it by Section 3.02(c) and Applicable Law, may proceed by a suit or suits at
law or in equity to foreclose the Security Interest and sell the Collateral, or
any portion thereof, under a judgment or a decree of a court or courts of
competent jurisdiction.
(e) Receiver.
--------
The Secured Party may obtain the appointment of a receiver of the
Collateral and the Pledgor consents to and waives any right to notice of such
appointment.
(f) Collection of Collateral Proceeds by Pledgor.
--------------------------------------------
The Secured Party may, by notice to the Pledgor, direct it to, and
thereupon the Pledgor shall, receive all proceeds of Collateral in trust for the
Secured Party, not commingle the same with any other property or funds of the
Pledgor and, unless the Secured Party shall have otherwise instructed the
Pledgor, deliver or cause to be delivered all such proceeds in the exact form
received, together with any necessary endorsements, to the Secured Party or to
such Person or Persons as the Secured Party may designate.
7
(g) Notification.
------------
The Secured Party may notify, or request the Pledgor to notify, in
writing or otherwise, each Collateral Debtor to make payment directly to the
Secured Party. If, notwithstanding the giving of any notice, any such Person
shall make payments to the Pledgor, the Pledgor shall hold all such payments it
receives in trust for the Secured Party, without commingling the same with other
funds or property of the Pledgor or any other Person, and shall deliver the same
to the Secured Party immediately upon receipt by the Pledgor in the identical
form received, together with any necessary endorsements.
(h) Secured Party's Rights with Respect to Proceeds and Other
---------------------------------------------------------
Collateral.
----------
All payments and other deliveries received by or for the account of
the Secured Party from time to time pursuant to Section 3.02(f) or (g), together
with the proceeds of all other Collateral from time to time held by or for the
account of the Secured Party may, at the election of the Secured Party, (i) be
or continue to be held by the Secured Party, or any Person designated by the
Secured Party to receive or hold the same, as Collateral, (ii) be applied as
provided in Section 3.01 or (iii) be disposed of in accordance with the
provisions of this Agreement and Applicable Law.
(i) Enforcement by Secured Party.
----------------------------
The Secured Party may, with only such notice to the Pledgor as is
required by, and not waivable under, Applicable Law and at such time or times as
the Secured Party in its sole discretion may determine, exercise any or all of
the Pledgor's rights in, to and under, or in any way connected with or related
to, any or all of the Collateral.
(j) Adjustments.
-----------
The Secured Party may settle or adjust disputes and claims directly
with Collateral Debtors for amounts and on terms that the Secured Party
considers advisable and in all such cases only the net amounts received by the
Secured Party in payment of such amounts, after deduction of out-of-pocket costs
and expenses of collection, including reasonable attorney's fees, shall be
subject to the other provisions of this Agreement. The Pledgor shall have no
further right under Section 2.01(b) or otherwise to make any such settlements or
adjustments or to accept any returns of merchandise.
(k) Warehousing.
-----------
The Secured Party may cause any or all of the Inventory and the
Machinery and Equipment to be placed in a public or field warehouse.
Section 14.03 Securities and Instrument Collateral.
------------------------------------
(a) Registration and Indemnification.
--------------------------------
If the Secured Party elects to sell or otherwise dispose of any
Securities and Instrument Collateral, the Pledgor shall, if it controls the
issuer or if it otherwise has the right to effect such registration, and if the
Secured Party deems such registration to be desirable, (i) cause the same to be
registered under the Securities Act of 1933 and take all other action, including
complying with the "blue sky" or securities laws of the several States of the
United States and delivering to the Secured Party appropriate quantities of
prospectuses, necessary or appropriate so as to permit the public sale or other
disposition thereof by the Secured Party in such jurisdictions as the Secured
Party may select, and (ii) indemnify, in the form then customary, all Persons
that are underwriters (whether statutory or otherwise) and all Affiliates of all
such Persons, in connection with such sale or disposition, such indemnity, to
the extent applicable to the Principals, to be in addition to and supplementary
of (and not to be construed as being in derogation of) that afforded the
Principals under Article 8 and Section 10.02 of the Credit Agreement.
8
(b) Restricted Offering Dispositions.
--------------------------------
Whether or not the Pledgor controls the issuer or otherwise has the
right to effect the registrations and compliances referred to in Section 3.03(a)
and as an alternative to its rights thereunder, in connection with any sale of
any of the Securities and Instrument Collateral, the Secured Party may, at its
election, comply with any limitation or restriction (including any restrictions
on the number of prospective bidders and purchasers or any requirement that they
have certain qualifications or that they represent and agree that they are
purchasing for their own account for investment and not with a view to the
distribution or resale of such Securities and Investment Collateral) as it may
be advised by counsel is necessary in order to avoid any violation of Applicable
Law or to obtain any Governmental Approval, and such compliance shall not result
in such sale being considered or deemed not to have been made in a commercially
reasonable manner, nor shall any Principal be liable or accountable to the
Pledgor for any discount allowed by reason of the fact that such Securities and
Instrument Collateral is sold in compliance with any such limitation or
restriction.
ARTICLE 15
MISCELLANEOUS
-------------
Section 15.01 Expenses of Pledgor's Agreements and Duties.
-------------------------------------------
The terms, conditions, covenants and agreements to be observed or performed
by the Pledgor under the Collateral Documents shall be observed or performed by
it at its sole cost and expense.
Section 15.02 Secured Party's Right to Perform on Pledgor's Behalf.
----------------------------------------------------
If the Pledgor shall fail to observe or perform any of the terms,
conditions, covenants and agreements to be observed or performed by it under the
Collateral Documents, the Secured Party, upon five business days notice to the
Pledgor specifying the action to be taken, may (but shall not be obligated to)
do the same or cause it to be done or performed or observed, either in its name
or in the name and on behalf of the Pledgor, and the Pledgor hereby authorizes
the Secured Party so to do.
Section 15.03 Secured Party's Right to Use Agents and to Act in Name of
---------------------------------------------------------
Pledgor.
-------
The Secured Party may exercise its rights and remedies under the Collateral
Documents through an agent or other designee and, in the exercise thereof, the
Secured Party or any such other Person may act in its own name or in the name
and on behalf of the Pledgor.
Section 15.04 No Interference, Compensation or Expense.
----------------------------------------
The Secured Party may exercise its rights and remedies under the Collateral
Documents (a) without resistance or interference by the Pledgor, (b) without
payment of any rent, license fee or compensation of any kind to the Pledgor and
(c) during an Event of Default, for the account, and at the expense, of the
Pledgor.
Section 15.05 Limitation of Obligations with Respect to Collateral.
----------------------------------------------------
(a) Neither the Secured Party nor any other Principal shall have any
obligation to protect or preserve any Collateral or to preserve rights
pertaining thereto other than the obligation to use reasonable care in the
custody and preservation of any Collateral in its actual possession. The
Secured Party shall be deemed to have exercised reasonable care in the custody
and preservation of any Collateral in its possession if such Collateral is
accorded treatment substantially equal to that which the Secured Party accords
its own property. The Secured Party shall be relieved of all
9
responsibility for any Collateral in its possession upon surrendering it, or
tendering surrender of it, to the Pledgor.
(b) Nothing contained in the Collateral Documents shall be construed
as requiring or obligating the Secured Party or any other Principal, and neither
the Secured Party nor any other Principal shall be required or obligated, to (i)
make any demand, or to make any inquiry as to the nature or sufficiency of any
payment received by it, or to present or file any claim or notice or take any
action, with respect to any Collateral Obligation or any other Collateral or the
monies due or to become due thereunder or in connection therewith, (ii)
ascertain or take action with respect to calls, conversions, exchanges,
maturities, tenders, offers or other matters relating to any Collateral, whether
or not the Secured Party or any other Principal has or is deemed to have
knowledge or notice thereof, (iii) take any necessary steps to preserve rights
against any prior parties with respect to any Collateral or (iv) notify the
Pledgor of any decline in the value of any Collateral.
Section 15.06 Rights of Secured Party under Uniform Commercial Code and
---------------------------------------------------------
Applicable Law.
--------------
The Secured Party shall have, with respect to the Collateral, in addition
to all of its rights and remedies under the Collateral Documents, (a) the rights
and remedies of a secured party under the Uniform Commercial Code, whether or
not the Uniform Commercial Code would otherwise apply to the Collateral in
question, and (b) the rights and remedies of a secured party under all other
Applicable Law.
Section 15.07 Waivers of Rights Inhibiting Enforcement.
----------------------------------------
The Pledgor waives (a) any claim that, as to any part of the Collateral, a
public sale, should the Secured Party elect so to proceed, is, in and of itself,
not a commercially reasonable method of sale for such Collateral, (b) the right
to assert in any action or proceeding between it and the Secured Party any
offsets or counterclaims (other than compulsory counterclaims) that it may have,
(c) except as otherwise provided in any of the Collateral Documents, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, NOTICE OR JUDICIAL HEARING IN CONNECTION
WITH THE SECURED PARTY'S TAKING POSSESSION OR DISPOSITION OF ANY OF THE
COLLATERAL INCLUDING ANY AND ALL PRIOR NOTICE AND HEARING FOR ANY PREJUDGMENT
REMEDY OR REMEDIES AND ANY SUCH RIGHT THAT THE PLEDGOR WOULD OTHERWISE HAVE
UNDER THE CONSTITUTION OR ANY STATUTE OF THE UNITED STATES OR OF ANY STATE, AND
ALL OTHER REQUIREMENTS AS TO THE TIME, PLACE AND TERMS OF SALE OR OTHER
REQUIREMENTS WITH RESPECT TO THE ENFORCEMENT OF THE SECURED PARTY'S RIGHTS
HEREUNDER, (d) all rights of redemption, appraisement, valuation, stay and
extension or moratorium to the extent permitted by Applicable Law and (e) all
other rights the exercise of which would, directly or indirectly, prevent, delay
or inhibit the enforcement of any of the rights or remedies under the Collateral
Documents or the absolute sale of the Collateral, now or hereafter in force
under any Applicable Law, and the Pledgor, for itself and all who may claim
under it, insofar as it or they now or hereafter lawfully may, hereby waive the
benefit of all such laws and rights.
Section 15.08 Power of Attorney.
-----------------
In addition to the other powers granted the Secured Party by the Pledgor
under the Collateral Documents, the Pledgor hereby appoints the Secured Party,
and any other Person that the Secured Party may designate, as the Pledgor's
attorney-in-
10
fact to act, in the name, place and stead of the Pledgor in any way
in which the Pledgor itself could do, with respect to each of the following
during an Event of Default: (a) endorsing the Pledgor's name on (i) any checks,
notes, acceptances, money orders, drafts or other forms of payment, (ii) any
proxies, documents, instruments, notices, freight bills, bills of lading or
other documents or agreements relating to the Collateral, (iii) notices of
assignment, financing statements and other public records, and endorsing and
depositing, or causing to be deposited, for collection, presenting, drawing upon
or under, or otherwise taking action to realize upon, all instruments, chattel
paper, securities, letters of credit and documents constituting part of the
Collateral for the purpose of holding and disposing of the proceeds thereof in
accordance with the terms of this Agreement; (b) claiming for, adjusting, and
instituting legal proceedings to collect, any amounts payable under insurance,
and applicable loss payable endorsements, required to be maintained under any of
the Collateral Documents; (c) taking any actions or exercising any rights,
powers or privileges that the Pledgor is entitled to take or exercise and that,
under the terms of any of the Collateral Documents, the Secured Party is
authorized to take or exercise; (d) doing or causing to be done any or all
things necessary or, in the determination of the Secured Party, desirable to
observe or perform the terms, conditions, covenants and agreements to be
observed or performed by the Pledgor under the Collateral Documents and
otherwise to carry out the provisions of the Collateral Documents; and (e)
notifying the post office authorities to change the address for delivery of the
Pledgor's mail to an address designated by the Secured Party, and receiving,
opening and disposing of all mail addressed to the Pledgor (with all mail not
constituting, evidencing or relating to the Collateral to be forwarded by the
Secured Party to the Pledgor). The Pledgor hereby ratifies and approves all
acts of the attorney pursuant to the foregoing other than any acts that are
determined by a judgment of a court that is binding on the Pledgor to constitute
gross negligence or willful misconduct.
Section 15.09 Termination of Security Interest.
--------------------------------
The Security Interest and all of the Pledgor's obligations under Articles
1, 2, 3 and 4 shall terminate upon (a) the payment in full of the Secured
Obligations and (b) the discharge, dismissal with prejudice, settlement, release
or other termination of any Loan Document Related Claims that may then be
pending against the Indemnified Persons.
Section 15.10 Notices and Deliveries.
----------------------
(a) Notices and Materials Other than Collateral. Except as provided
-------------------------------------------
in Section 4.10(b):
(i) Manner of Delivery.
------------------
All notices, communications and materials (including all
Information) to be given or delivered pursuant to the Collateral Documents
shall, except in those cases where giving notice by telephone is expressly
permitted, be given or delivered in writing (which shall include telex and
telecopy transmissions). In the event of a discrepancy between any
telephonic notice and any written confirmation thereof, such written
confirmation shall be deemed the effective notice except to the extent the
Secured Party has acted in reliance on such telephonic notice.
(ii) Addresses.
---------
All notices, communications and materials to be given or delivered
pursuant to the Collateral Documents shall be given or delivered at the
following respective addresses and telex, telecopier and telephone numbers
and to the attention of the following individuals or departments:
11
A. if to the Pledgor, to it at:
[PLEDGOR]
[c/o Premiere Technologies, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇
Lenox Building, Suite 400
Atlanta, Georgia 30326
Telecopier No.:
Telephone No.:
Attention: ▇▇. ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇
Chief Financial Officer
with a copy to:
▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇) ▇▇▇-▇▇▇▇
B. if to the Secured Party, to it at:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇(6, 7)
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Geneveso ▇▇▇▇▇▇▇▇, AFA, 18th Floor
or at such other address or telex, telecopier or telephone number or to the
attention of such other individual or department as the party to which such
information pertains may hereafter specify for the purpose in a notice to
the other specifically captioned "Notice of Change of Address."
12
(iii) Effectiveness.
-------------
Each notice and communication and any material to be given or
delivered pursuant to the Collateral Documents shall be deemed so given or
delivered (A) if sent by any means of physical delivery, when such notice,
communication or material is delivered or received at the appropriate
address as above provided, (B) if sent by telecopier, when such notice,
communication or material is transmitted to the appropriate telecopier
number as above provided and is received at such number and (C) if given by
telephone, when communicated to the individual or any member of the
department specified as the individual or department to whose attention
notices, communications and materials are to be given or delivered except
that notices, communications and materials to be given or delivered to the
Secured Party pursuant to the Collateral Documents shall not be deemed
given or delivered until received by the officer of the Secured Party
responsible, at the time, for the administration of the Collateral
Documents.
(iv) Reasonable Notice.
-----------------
Any requirement under Applicable Law of reasonable notice by the
Secured Party to the Pledgor of any event in connection with, or in any way
related to, the Loan Documents or the exercise by the Secured Party of any
of its rights thereunder shall be met if notice of such event is given to
the Pledgor in the manner prescribed above at least 10 days before (A) the
date of such event or (B) the date of the day after which such event will
occur.
(b) Collateral.
----------
Until the Secured Party shall otherwise specify, all Collateral to be
delivered to the Secured Party pursuant to the Collateral Documents consisting
of instruments, securities, chattel paper, letters of credit or documents shall
be delivered to the Secured Party at the Secured Party's Office either by hand
delivery or by registered or certified mail, postage prepaid, return receipt
requested, in either case insured in an amount not less than the greater of the
aggregate face amount and the aggregate fair market value of the Collateral so
being delivered. All other Collateral to be delivered to the Secured Party
pursuant to the Collateral Documents shall be delivered to such Person, at such
address, by such means and in such manner as the Secured Party may designate.
Section 15.11 Governing Law.
-------------
The rights and duties of the Pledgor, the Secured Party and the Principals
under the Collateral Documents (including matters relating to the Maximum
Permissible Rate) shall, pursuant to New York General Obligations Law Section 5-
1401, be governed by the law of the State of New York.
Section 15.12 LIMITATION OF LIABILITY.
-----------------------
NEITHER THE SECURED PARTY NOR ANY OTHER PRINCIPAL SHALL HAVE ANY LIABILITY
WITH RESPECT TO, AND THE PLEDGOR HEREBY WAIVES, RELEASES AND AGREES NOT TO ▇▇▇
FOR ANY LOSS OR DAMAGE SUSTAINED BY THE PLEDGOR, OR ANY LOSS, DAMAGE,
DEPRECIATION OR OTHER DIMINUTION IN THE VALUE OF ANY COLLATERAL, THAT MAY OCCUR
AS A RESULT OF, IN CONNECTION WITH, OR THAT IS IN ANY WAY RELATED TO, ANY
EXERCISE OF ANY RIGHT OR REMEDY UNDER THE COLLATERAL DOCUMENTS, EXCEPT FOR ANY
SUCH LOSS, DAMAGE, DEPRECIATION OR DIMINUTION TO THE EXTENT THAT THE SAME IS
DETERMINED BY A JUDGMENT OF A COURT THAT IS BINDING ON THE PLEDGOR AND SUCH
PRINCIPAL, TO BE THE RESULT OF (i) A BREACH BY SUCH PRINCIPAL
OF ITS OBLIGATIONS HEREUNDER OR (ii) ACTS OR OMISSIONS ON THE PART OF SUCH
PRINCIPAL CONSTITUTING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Section 15.13 Counterparts.
------------
Each Collateral Document may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
were upon the same instrument.
Section 15.14 Entire Agreement.
----------------
This Agreement embodies the entire agreement among the Pledgor, the Secured
Party and the Banks relating to the subject matter hereof and supersedes all
prior agreements, representations and understandings, if any, relating to the
subject matter hereof.
Section 15.15 Successors and Assigns.
----------------------
All of the provisions of each Collateral Document shall be binding upon and
inure to the benefit of the Pledgor, the Secured Party and the other Principals
and their respective successors and assigns.
Section 15.16 Delivery of Opinions Authorized.
-------------------------------
The Pledgor hereby acknowledges and agrees that each Person that has
rendered or may render an opinion, report or similar communication, including
legal opinions and accountant's reports, to any Person in connection with the
Collateral Documents, has been and is hereby authorized and directed to so
deliver such opinion, report or communication.
ARTICLE 16
INTERPRETATION
--------------
Section 16.01 Definitional Provisions.
-----------------------
(a) Certain Terms Defined by Reference.
----------------------------------
(i) Except where the context clearly indicates a different meaning,
all terms defined in Article 1, 8 or 9 of the Uniform Commercial Code, as in
effect on the date of this Agreement, are used herein with the meanings therein
ascribed to them. In addition, the terms "account", "collateral" and "security
interest", when capitalized, have the meanings specified in subsection (b) below
and the term "deposit account" includes an account evidenced by a certificate of
deposit.
(ii) Except in the case of "Agreement", "Agreement Date",
"Collateral", "Intellectual Property", "Permitted Lien", "Representation and
Warranty" and "Security Interest" and as otherwise specified herein, all terms
defined in the Credit Agreement are used herein with the meanings therein
ascribed to them.
(b) Other Defined Terms.
-------------------
For purposes of this Agreement:
"Account" means a Receivable that represents the right to payment for goods
-------
sold or leased or for services rendered, in each case in the ordinary course of
business.
"Account Proceeds" means proceeds of an Account other than an Account
----------------
representing the sale or other disposition of Machinery and Equipment pursuant
to Section 2.02(b)(i).
14
"Agreement" means this Security Agreement, including all schedules, annexes
---------
and exhibits hereto.
"Agreement Date" means the date set forth as such on the last signature
--------------
page hereof, which date is the date the executed copies of this Agreement were
delivered by all parties hereto and, accordingly, the date this Agreement became
effective and, for the first time, binding upon such parties.
"Collateral" means the Pledgor's interest (WHATEVER IT MAY BE) in each of
----------
the following, IN EACH CASE WHETHER NOW OR HEREAFTER EXISTING OR NOW OWNED OR
HEREAFTER ACQUIRED BY THE PLEDGOR AND WHETHER OR NOT THE SAME IS NOW
CONTEMPLATED, ANTICIPATED OR FORESEEABLE, whether or not the same is subject to
Article 8 or 9 of the Uniform Commercial Code, whether or not the same
constitutes Collateral by reason of one or more than one of the following
clauses, AND WHEREVER THE SAME MAY BE LOCATED:
(i) all Receivables;
(ii) all General Intangibles;
(iii) all Inventory;
(iv) all Machinery and Equipment;
(v) all Securities and Instrument Collateral;
(vi) all Securities Accounts;
(vii) all Commodity Accounts;
(viii) all books, records, ledgercards, files, correspondence,
computer programs, tapes, disks and related data processing software (owned
by the Pledgor or in which it has an interest) that at any time evidence or
contain information relating to any Collateral or are otherwise necessary
or helpful in the collection thereof or realization thereupon;
(ix) all goods and other property, whether or not delivered, (A)
the sale, lease or furnishing of which gives or purports to give rise to
any Receivable, including all merchandise returned or rejected by or
repossessed from customers, or (B) securing any Receivable, including all
of the Pledgor's rights as an unpaid vendor or lienor, including stoppage
in transit, replevin and reclamation with respect to such goods and other
properties;
(x) all documents of title, policies and certificates of
insurance, securities, chattel paper and other documents or instruments
evidencing or pertaining to any Collateral;
15
(xi) all guaranties, Liens on real or personal property, leases
and other agreements and property that in any way secure or relate to any
Collateral, or are acquired for the purpose of securing and enforcing any
item thereof;
(xii) all claims (including the right to ▇▇▇ or otherwise
recover on such claims) (A) to items referred to in the definition of
Collateral, (B) under warranties relating to any Collateral and (C) against
third parties for (1)(aa) loss, destruction, requisition, confiscation,
condemnation, seizure, forfeiture or infringement of, or damage to, any
Collateral, (bb) payments due or to become due under leases, rentals and
hires of any Collateral, (cc) proceeds payable under or unearned premiums
with respect to policies of insurance relating to any Collateral and (2)
breach of any Contract constituting Collateral; and
(xiii) all products and proceeds of Collateral in whatever form.
The inclusion of "proceeds" of Collateral in the definition of "Collateral"
shall not be deemed a consent by the Secured Party to any sale or other
disposition of any Collateral not otherwise specifically permitted by the
terms hereof or of the Credit Agreement.
"Collateral Debtor" means a Person (including an issuer of any share of
-----------------
capital stock or other unit of ownership interest constituting Securities and
Instrument Collateral) obligated on, bound by, or subject to, a Collateral
Obligation.
"Collateral Documents" means (i) this Agreement and (ii) all other
--------------------
agreements, documents and instruments executed or delivered under or in
connection with, (A) this Agreement, (B) any other agreement, document or
instrument referred to in this clause (ii), or (C) any of the transactions
contemplated by this Agreement or any such other agreement, document or
instrument, in each case whether now or hereafter executed.
"Collateral Obligation" means a Liability constituting part of the
---------------------
Collateral and includes any such constituting or arising under any Receivable,
General Intangible or Securities and Instrument Collateral.
"Commodity Account" means any commodity account.
-----------------
"Commodity Account Control Letter" means a control letter substantially in
--------------------------------
the form of Schedule 5.01(a)1.
-----------------
"Control Letter" means a Securities Account Control Letter and a Commodity
--------------
Account Control Letter.
"Credit Agreement" means the Credit Agreement, dated as of December 17,
----------------
1997, as amended and restated as of the date hereof, among Xpedite Systems, Inc.
and Xpedite Systems Holdings (UK) Limited, as Borrowers, the Guarantors party
thereto, the Banks listed on the signature pages thereof, NationsBank, N.A., as
Documentation Agent, and The Bank of New York, as Administrative Agent.
"Distribution Collateral" means (i) all Distributions on or in respect of
-----------------------
(A) the instruments and securities listed on Schedule 2.01(c)(v), (B) any shares
-------------------
of capital stock of or
16
other units of ownership interests in any Significant Subsidiary which the
Pledgor forms or acquires, or of any Subsidiary that becomes a Significant
Subsidiary, after the date hereof that constitute Securities and Instrument
Collateral or (C) any instruments, securities or property that constitute
Distribution Collateral by virtue of any provision of this definition, including
this clause (i)(C) and (ii) all other instruments or securities and other
property issued with respect to or in exchange for (A) the instruments or
securities listed on Schedule 2.01(c)(v), (B) any shares of capital
-------------------
stock of or other units of ownership interests in any Significant
Subsidiary which the Pledgor forms or acquires, or of any Subsidiary that
becomes a Significant Subsidiary, after the date hereof that constitute
Securities and Instrument Collateral or (C) any instruments, securities or other
property that constitute Distribution Collateral by virtue of any provision of
this definition, including this clause (ii)(C) (whether, in either case, upon
conversion of convertible securities included therein or through stock split,
spin-off, reclassification, merger, consolidation, sale of assets, combination
of shares or otherwise).
"Distributions" means Ordinary Distributions and Extraordinary
-------------
Distributions.
"Extraordinary Distributions" means (in each case whether or not in cash)
---------------------------
all dividends, interest, principal payments, other distributions and other
property (including cash, instruments and securities payable in connection with
calls, conversions, redemptions and the like or otherwise) on or in respect of
or in exchange for, and all proceeds (including cash, instruments and securities
receivable in connection with tender or other offers or otherwise) of,
Securities and Instrument Collateral other than Ordinary Distributions.
"General Intangibles" means general intangibles (except to the extent that
-------------------
the terms of any lease or other contract would prohibit the Pledgor from
conveying the Security Interest in its interest in such lease or contract).
"Intellectual Property" means (i) (A) patents and patent rights, (B)
---------------------
trademarks, trademark rights, trade names, trade name rights, corporate names,
business names, trade styles, service marks, logos and general intangibles of
like nature, together with, in the case of each item referred to in or
contemplated by clauses (A), (B) or (C), the goodwill of the business connected
with the use of or symbolized by the same, and (C) copyrights, in each case
whether registered, unregistered or under pending registration and, in the case
of any such that are registered or under pending registration, whether
registered or under pending registration under the laws of the United States or
any other country, (ii) reissues, continuations, continuations-in-part and
extensions of any Intellectual Property referred to in clause (i), and (iii)
rights relating to any Intellectual Property referred to in clause (i) or (ii),
including rights under applications (whether pending under the laws of the
United States or any other country) or licenses relating thereto.
"Inventory" means all inventory.
---------
"Machinery and Equipment" means all equipment wherever located and whether
-----------------------
or not the same constitutes "fixtures."
"Ordinary Distributions" means cash dividends to the extent paid out of
----------------------
retained earnings or capital surplus, and interest paid in cash, in each case
with respect to Securities and Instrument Collateral or other securities or
instruments, except to the extent that any such dividend is made
17
in connection with partial or total liquidation or a reduction of capital, or
any such interest is penalty interest, or, in each case, to the extent the same
is not declared or paid in the ordinary course.
"Permitted Lien" means (i) (A) a Lien listed on Schedule 1.02A and (B) a
-------------- --------------
Lien described in clause (a)(v) of the definition of "Permitted Lien" in the
Credit Agreement, including (1) a Lien for Taxes either not yet due or that are
being contested in good faith by appropriate proceedings and with respect to
which foreclosure, distraint, sale or other similar proceedings shall not have
been commenced or shall have been stayed and adequate reserves have been
established therefor in accordance with Generally Accepted Accounting Principles
and (2) in the case of any Collateral other than Securities and Instrument
Collateral and its proceeds, any other Lien, such as those in favor of a
landlord, warehouseman, carrier, or the like, arising by operation of law and
incurred in the ordinary course of business that does not (aa) arise under ERISA
or under any environmental law or (bb) secure an obligation for borrowed money,
(ii) any interest or title of a lessor under any lease (including UCC filings
relating to any such leasehold interest), (iii) any Lien securing a judgment (or
any equivalent prejudgment attachment) so long as, and to the extent that, such
judgment (or requested judgment) does not constitute an Event of Default under
Section 6.01(f) of the Credit Agreement, (iv) any easements, rights-of-way,
restrictions, minor defects or irregularities in title and other similar charges
or encumbrances not interfering in any material respect with the ordinary
conduct of the business of the Loan Parties (v) deposits made to secure
Liabilities other than Indebtedness or constituting Indebtedness (such as in
connection with letters of credit or surety bonds) incurred to provide a
substitute for, or similar security as, such a deposit and (vi) a Lien created
in favor of the Secured Party under the Collateral Documents.
"Pledgor" means [PLEDGOR], a [JURISDICTION] corporation.
-------
"Principals" means all Persons that are, or at any time were, the Secured
----------
Party, an Administrative Agent, a Bank or any other Indemnified Person.
"Questionnaire" means the Questionnaire in the form attached hereto as
-------------
Schedule 2.01(c)(vi) executed and delivered by the Pledgor to the Secured Party
--------------------
in connection with this Agreement.
"Receivables" means (i) all accounts and (ii) all other rights to the
-----------
payment of money.
"Representation and Warranty" means each representation or warranty made
---------------------------
pursuant to or under (i) Article 2 or any other provision of this Agreement,
(ii) any of the other Collateral Documents or (iii) any amendment to, or waiver
of rights under, this Agreement or any of the other Collateral Documents.
"Secured Obligations" means all Liabilities of the Pledgor owing to, or in
-------------------
favor or for the benefit of, or purporting to be owing to, or in favor or for
the benefit of, the Principals under the Loan Documents or any interest rate
swap or similar hedging agreement, in each case (i) WHETHER NOW EXISTING OR
HEREAFTER ARISING OR ACQUIRED, and (ii) whether owing to, or in favor or for the
benefit of, or purporting to be owing to, or in favor or
18
for the benefit of, Persons that are Principals as of the Agreement Date or that
become Principals by reason of any permitted succession or assignment at any
time thereafter.
"Secured Party" means the Administrative Agent, acting both on its own
-------------
behalf as Administrative Agent and as the agent for and representative (within
the meaning of Section 9-105(m) of the Uniform Commercial Code) of the other
Principals.
"Secured Party's Office" means the address of the Secured Party specified
----------------------
in or determined in accordance with the provisions of Section 4.10.
"Securities Account" means any securities account.
------------------
"Securities and Instrument Collateral" means (i) all securities and
------------------------------------
instruments listed on Schedule 2.01(c)(v), (ii) without limiting the Loan
-------------------
Parties' obligations under the Loan Documents, (A) all other Capital Securities
at any time created, issued or granted to Pledgor by any Person named on
Schedule 2.01(c)(v) that is a United States Person and (B) 65% (or such other
percentage which in the reasonable determination of the Company constitutes the
maximum percentage which may be pledged hereunder without adversely affecting
the United States taxation treatment of the Company) of all other Capital
Securities at any time created, issued or granted to Pledgor by any Person named
on Schedule 2.01(c)(v) that is not a United States Person, (iii) all shares of
capital stock of or other units of ownership interests in any Significant
Subsidiary that is a United States Person which the Pledgor forms or acquires,
or in any Subsidiary that is a United States Person that becomes a Significant
Subsidiary, after the date hereof, (v) 65% (or such other percentage which in
the reasonable determination of the Company constitutes the maximum percentage
which may be pledged hereunder without adversely affecting the United States
taxation treatment of the Company) of the outstanding shares of capital stock or
other units of ownership interests in any Significant Subsidiary that is not a
United States Person which the Pledgor forms or acquires, or in any Subsidiary
that is not a United States Person that becomes a Significant Subsidiary, after
the date hereof, (vi) all Indebtedness described on Schedule 2.01(c)(v), (vii)
-------------------
all other Indebtedness from time to time owed to the Pledgor by a Significant
Subsidiary, (viii) all Distribution Collateral, (ix) all replacements and
substitutions for any Collateral that constitutes (whether by virtue of clause
(i), clause (ii), clause (iii), clause (iv), clause (v), clause (vi), clause
(vii), clause (viii) or this clause (ix)) Securities and Instrument Collateral
and (x) the certificates, if any, representing the foregoing; provided, however,
-------- -------
that Capital Securities of any Subsidiary that is not a Significant Subsidiary
shall not constitute Securities and Instrument Collateral.
"Security Account Control Letter" means a control letter substantially in
-------------------------------
the form of Schedule 5.01(a)-2.
-------------------
"Security Interest" means the mortgages, pledges and assignments to the
-----------------
Secured Party of, the continuing security interest of the Secured Party in, and
the continuing lien of the Secured Party upon, the Collateral intended to be
effected by the terms of this Agreement or any of the other Collateral
Documents.
Section 16.02 Other Interpretive Provisions.
-----------------------------
(a) Except as otherwise specified herein or in the Credit Agreement,
all references herein (i) to any Person shall be deemed to include such
19
Person's permitted successors and assigns, (ii) to any Applicable Law defined or
referred to herein shall be deemed references to such Applicable Law or any
successor Applicable Law as the same may have been or may be amended or
supplemented from time to time and (iii) to any Loan Document or Contract
defined or referred to herein shall be deemed references to such Loan Document
or Contract (and, in the case of any instrument, any other instrument issued in
substitution therefor) as the terms thereof may have been or may be amended,
supplemented, waived or otherwise modified from time to time.
(b) When used in this Agreement, the words "herein", "hereof" and
"hereunder" and words of similar import shall refer to this Agreement as a whole
and not to any provision of this Agreement, and the words "Article", "Section",
"Annex", "Schedule" and "Exhibit" shall refer to Articles and Sections of, and
Annexes, Schedules and Exhibits to, this Agreement unless otherwise specified.
(c) Whenever the context so requires, the neuter gender includes the
masculine or feminine, the masculine gender includes the feminine, and the
singular number includes the plural, and vice versa.
(d) Any item or list of items set forth following the word
"including", "include" or "includes" is set forth only for the purpose of
indicating that, regardless of whatever other items are in the category in which
such item or items are "included", such item or items are in such category, and
shall not be construed as indicating that the items in the category in which
such item or items are "included" are limited to such items or to items similar
to such items.
(e) Each power of attorney in favor of the Secured Party or any other
Person granted by or pursuant to this Agreement shall be deemed to be
irrevocable and coupled with an interest.
(f) Except as otherwise indicated, any reference herein to the
"Collateral", the "Secured Obligations", the "Loan Documents", the "Collateral
Documents", the "Principals" or any other collective or plural term shall be
deemed a reference to each and every item included within the category described
by such collective or plural term, so that (i) a reference to the "Collateral",
the "Secured Obligations" or the "Principals" shall be deemed a reference to any
or all of the Collateral, the Secured Obligations or the Principals, as the case
may be, and (ii) a reference to the "obligations" of the Pledgor under the "Loan
Documents" or the "Collateral Documents" shall be deemed a reference to each and
every obligation under each and every Loan Document or Collateral Document, as
the case may be, whether any such obligation is incurred under one, some or all
of the Loan Documents or the Collateral Documents, as the case may be.
(g) Except where the context clearly indicates a different meaning,
references in this Agreement to Receivables, General Intangibles, Inventory and
Machinery and Equipment means the same to the extent they constitute Collateral.
(h) Except as otherwise specified therein, all terms defined in this
Agreement shall have the meanings herein ascribed to them when used in the other
Collateral Documents or any certificate, opinion or other document delivered
pursuant hereto or thereto.
20
Section 16.03 Representations and Warranties.
------------------------------
All Representations and Warranties shall be deemed made (a) in the case of
any Representation and Warranty contained in this Agreement at the time of its
initial execution and delivery, at and as of the Agreement Date, (b) in the case
of any Representation and Warranty contained in this Agreement at the time any
Loan is made at and as of such time and (c) in the case of any particular
Representation and Warranty, wherever contained, at such other time or times as
such Representation and Warranty is made or deemed made in accordance with the
provisions of this Agreement or the document pursuant to, under or in connection
with which such Representation and Warranty is made or deemed made.
Section 16.04 Captions.
--------
Captions to Articles, Sections and subsections of, and Annexes, Schedules
and Exhibits to, the Collateral Documents are included for convenience of
reference only and shall not constitute a part of the Collateral Documents for
any other purpose or in any way affect the meaning or construction of any
provision of the Collateral Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers all as of the Agreement Date.
[PLEDGOR]
By:
---------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Secured Party
By:
---------------------------------
Name:
Title:
Agreement Date:
21
Schedule 1.02
-------------
SCHEDULE OF REQUIRED ACTION
Pursuant to, and without thereby limiting, its obligations under Section
1.02, the Pledgor hereby agrees that it will:
(a) file UCC-1 financing statements in the form of Schedule 1.02(a);
----------------
(b) within five Business Days (or, during an Event of Default, such
shorter period as the Secured Party may specify) after receipt by the Pledgor or
any of its agents, deliver or caused to be delivered to the Secured Party,
stamped, marked, endorsed or accompanied by such instruments of assignment as
the Secured Party may specify, all instruments, chattel paper, certificated
securities, letters of credit and documents evidencing or forming a part of the
Collateral and not constituting Account Proceeds;
(c)(i) in the case of each Securities Account or Commodity Account
that is Collateral, deliver to the Secured Party a Securities Account Control
Letter or Commodity Account Control Letter, as the case may be, duly executed by
the securities intermediary or commodity intermediary, as the case may be, and
the Pledgor;
(d) in the case of any Collateral constituting Intellectual Property,
cause a duly executed copy of Schedule 1.02(d)-A, -B or -C, as appropriate, with
------------------ -- --
respect thereto to be filed in the appropriate filing office; and
(e) at all times ▇▇▇▇ its books and records as may be necessary or
appropriate to evidence, protect and perfect the Security Interest.
Schedule 1.02(a)
STANDARD FORM UCC-1
FINANCING STATEMENT
1. Debtor: [Insert Pledgor's name and address]
2. Secured Party: The Bank of New York, as Secured Party, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
3. "Collateral" as defined in Annex A attached hereto, whether now or hereafter
existing or now owned or hereafter acquired, including certain accounts,
contract rights and general intangibles; certain goods, including certain
machinery, fixtures and attachments, accessories, components and parts
installed therein or affixed thereto, finished goods, work-in-process and
raw materials; certificated and uncertificated securities and instruments;
securities account and commodity accounts; and proceeds of the foregoing
(including, in the case of securities and instruments, all payments and
distributions on or with respect thereto, whether constituting principal,
interest or dividends).
Signature Lines:
Debtor: [Insert Pledgor's name]
Secured Party: The Bank of New York, as Secured Party
ANNEX A TO UCC-1 FINANCING STATEMENT
DEBTOR:
SECURED PARTY:
THE TERMS "RECEIVABLES", "GENERAL INTANGIBLES", "INVENTORY", "MACHINERY AND
EQUIPMENT", "SECURITIES AND INSTRUMENTS COLLATERAL" "SECURITIES ACCOUNTS" AND
"COMMODITY ACCOUNTS" ARE DEFINED IN THE SECURITY AGREEMENT DATED AS OF DECEMBER
16, 1997 BETWEEN DEBTOR AND SECURED PARTY, AS AMENDED FROM TIME TO TIME.
COLLATERAL DESCRIPTION
"Collateral" means the Debtor's interest (whatever it may be) in each of
----------
the following, in each case whether now or hereafter existing or now owned or
hereafter acquired by the Debtor and whether or not the same is now
contemplated, anticipated or foreseeable, or constitutes Collateral by reason of
one or more than one of the following clauses, and wherever the same may be
located:
(a) all Receivables;
(b) all General Intangibles;
(c) all Inventory;
(d) all Machinery and Equipment;
(e) all Securities and Instruments Collateral;
(f) all Securities Accounts;
(g) all Commodity Accounts;
(h) all books, records, ledgercards, files, correspondence, computer
programs, tapes, disks and related data processing software (owned by the Debtor
or in which it has an interest) that at any time evidence or contain information
relating to any Collateral or are otherwise necessary or helpful in the
collection thereof or realization thereupon;
(i) all goods and other property, whether or not delivered, (i) the
sale, lease or furnishing of which gives or purports to give rise to any
Receivable, including all merchandise returned or rejected by or repossessed
from customers, or (ii) securing any Receivable, including all of the Debtor's
rights as an unpaid vendor or lienor, including stoppage in transit, replevin
and reclamation with respect to such goods and other properties;
(j) all documents of title, policies and certificates of insurance,
securities, chattel paper and other documents or instruments evidencing or
pertaining to any Collateral;
(k) all guaranties, liens on real or personal property, leases and
other agreements and property that in any way secure or relate to any
Collateral, or are acquired for the purpose of securing and enforcing any item
thereof;
(l) all claims (including the right to ▇▇▇ or otherwise recover on
such claims) (i) to items referred to in the definition of Collateral, (ii)
under warranties relating to any Collateral, (iii) against third parties for (A)
(1) loss, destruction, requisition, confiscation, condemnation, seizure,
forfeiture or infringement of, damage to, (2) payments due or to become due
under leases, rentals or hires of, and (3) proceeds payable under or unearned
premiums with respect to policies of insurance relating to, any Collateral and
(B) breach of any Contract constituting Collateral; and
(m) all products and proceeds of Collateral in whatever form.
Some of the Collateral may be located at: [Insert locations of Collateral]
Schedule 1.02(d)-A
------------------
MEMORANDUM OF SECURITY AGREEMENT
--------------------------------
PATENTS
-------
Pursuant to a Security Agreement dated as of ____, 199_ (the "Security
Agreement"), [name of Pledgor], whose chief executive office is located at
[insert address] (the "Pledgor"), has granted to The Bank of New York, whose
chief executive office is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as
Administrative Agent (the "Secured Party"), a continuing security interest in,
and a continuing lien upon, all of Pledgor's right, title and interest in and to
the patents and patent applications listed on the attached Schedule and all
reissues, divisions, continuations, continuations-in-part, extensions and
renewals thereof. Such security interest and lien can be terminated only in
accordance with the terms of the Security Agreement.
Dated: ____, 19__
[name of Pledgor]
By:
----------------------------------
Name:
Title:
SCHEDULE
Patent Registrations
--------------------
Title Inventor(s) Patent No. Issue Date Expiration Date
--------------------- ------------------------- ---------------------- ---------------------- ----------------------
Patent Applications
-------------------
Title Inventor(s) Application Serial No. Filing Date
--------------------------- ------------------------------- ---------------------------- ----------------------------
Schedule 1.02(d)-B
------------------
MEMORANDUM OF SECURITY AGREEMENT
--------------------------------
TRADEMARKS
----------
Pursuant to a Security Agreement dated as of ____, 199_ (the "Security
Agreement"), [name of Pledgor], whose chief executive office is located at
[insert address] (the "Pledgor"), has granted to The Bank of New York, whose
chief executive office is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as
Administrative Agent (the "Secured Party"), a continuing security interest in,
and a continuing lien upon, all of Pledgor's right, title and interest in and to
the trademarks and trademark applications listed on the attached Schedule,
together with the goodwill connected with the use of and symbolized by each of
such trademarks, and all renewals thereof. Such security interest and lien can
be terminated only in accordance with the terms of the Security Agreement.
Dated: ____, 19__
[name of Pledgor]
By:
-----------------------------------
Name:
Title:
SCHEDULE
Trademark Registrations
-----------------------
Trademark Registration No. Registration Date
-------------------------- --------------------------------------------------- ----------------------------------
Trademark Applications
----------------------
Trademark Application Serial No. Filing Date
--------- ---------------------- -----------
Schedule 1.02(d)-C
------------------
MEMORANDUM OF SECURITY AGREEMENT
--------------------------------
COPYRIGHTS
----------
Pursuant to a Security Agreement dated as of _____, 199_ (the "Security
Agreement"), [name of Pledgor], whose chief executive office is located at
[insert address] (the "Pledgor"), has granted to The Bank of New York, whose
chief executive office is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as
Administrative Agent (the "Secured Party"), a continuing security interest in,
and a continuing lien upon, all of Pledgor's right, title and interest in and to
the copyrights and copyright applications listed on the attached Schedule and
all renewals and extensions thereof. Such security interest and lien can be
terminated only in accordance with the terms of the Security Agreement.
Dated: _________, 19__
[name of Pledgor]
By:
----------------------------------
Name:
Title:
SCHEDULE
Copyright Registrations
-----------------------
Title Registration No. Registration Date
----- ---------------- -----------------
Copyright Applications
----------------------
Title _________________________ Filing Date
----- -----------
SCHEDULE 1.02A
Voice-Tel Enterprises, Ltd.
SCHEDULE OF PERMITTED LIENS
Customary restrictions contained in equipment leases entered into in the
ordinary course of business.
Liens in the form of capital leases or purchase money security interests in
various equipment of Voice-Tel Enterprises, Inc. not to exceed $2,000,000.
SCHEDULE 1.02A
American Teleconferencing Services, Ltd.
SCHEDULE OF PERMITTED LIENS
Customary restrictions contained in equipment leases entered into in the
ordinary course of business.
Liens in the form of capital leases or purchase money security interests in
various equipment of American Teleconferencing Services, Ltd. not to exceed $0.
SCHEDULE 1.02A
Xpedite Systems, Inc.
SCHEDULE OF PERMITTED LIENS
Customary restrictions contained in equipment leases entered into in the
ordinary course of business.
Liens in the form of capital leases or purchase money security interests in
various equipment of Xpedite Systems, Inc. not to exceed $1,765,000.
Schedule 2.01(c)(v)
-------------------
Voice-Tel Enterprises, Inc.
Schedule of Initial Securities and Instrument Collateral
None
Schedule 2.01(c)(v)
--------------------
American Teleconferencing Services, Inc.
Schedule of Initial Securities and Instrument Collateral
None
Schedule 2.01(c)(v)
-------------------
Premiere Technologies, Inc.
Schedule of Initial Securities and Instrument Collateral
Capital Securities
------------------
Jurisdiction of Number of Certificate Date of
Name Incorporation Shares Number % Ownership Issue
---------------------------------------- --------------- --------- ----------- ------------ -------
Premiere Communications, Inc. Florida 6,000 3 100% 5/21/92
American Teleconferencing Services, Ltd. Missouri 100 2 100% 4/23/98
Voice-Tel Enterprises, Inc. Delaware 1,000 500 100% 4/30/97
Voicecom Systems, Inc. Washington 1,000 100 100% 9/30/97
Xpedite Systems, Inc. Delaware 100 500 100% 2/27/98
Indebtedness
------------
None
Other Securities and Instrument Collateral
------------------------------------------
None
Schedule 2.01(c)(vi)
--------------------
SECURITY AGREEMENT QUESTIONNAIRE
The undersigned (the "Pledgor") is entering into a Security Agreement with The
Bank of New York, as Administrative Agent. In connection with the Security
Agreement the Pledgor is required to answer the following questions.
1. What is the Pledgor's exact corporate name as it appears in its certificate
of incorporation (or, if not a corporation, the Pledgor's complete name)?
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
2. Has the Pledgor ever changed its name? If so, state each other name the
Pledgor has had.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
3a. Does the Pledgor do business under any other name? If so, state each such
name.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
b. Does the Pledgor use or has the Pledgor used any trade names or trade
styles? If so, list each of them.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
c. If the Pledgor has at any time during the preceding five years done
business under any name or used any trade name or trade style not listed
under a. or b., list each such name or style.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
4. Has the Pledgor changed its identity or corporate structure in any way
within the past five years? Changes in corporate structure would include
incorporation of a partnership or sole proprietorship, reincorporation in a
different state, mergers, consolidations and acquisitions. If any such
change has taken place, indicate the nature of such change and give the
names of each corporation or other entity that was incorporated, merged or
consolidated with or acquired by the Pledgor in such transaction (including
each name under which each such corporation or entity has done business)
and the address of each place of business of each such corporation or
entity immediately prior to such incorporation, merger, consolidation or
acquisition and within five years prior to the date of this Questionnaire.
---------------------------------------------------------------------------
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---------------------------------------------------------------------------
5a. State the complete address (including the county) of the Pledgor's place of
business or, if the Pledgor has more then one place of business, its chief
executive office and, if different from its chief executive office, of the
office where the Pledgor keeps its books and records relating to its
accounts or contract rights, specifying in each case whether such location
is owned or leased by the Pledgor and, if leased, specifying the name and
address of the landlord.
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---------------------------------------------------------------------------
---------------------------------------------------------------------------
b. If the Pledgor maintains any records relating to any of the Collateral with
an independent computer service firm or the like specify the address
(including the county) of each such Person.
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---------------------------------------------------------------------------
6. Has the Pledgor's place of business, chief executive office or office where
the Pledgor keeps its books and records relating to its accounts or
contract rights been located at any other address (including that of any
independent computer service firm or the like) during the past four months?
If so, specify each such address (including the county) and whether such
location was owned or leased by the Pledgor and, if leased, specifying the
name and address of the landlord.
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---------------------------------------------------------------------------
7. State the complete address (including the county) of each other place of
business that the Pledgor presently has, specifying in each case whether
such location is owned or leased by the Pledgor and, if leased, specifying
the name and address of the landlord.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
8. State the complete address (including the county) of each place of business
that the Pledgor has had in the past four months, other than those listed
in the answers to questions 5, 6 and 7, specifying in each case whether
such location was owned or leased by the Pledgor and, if leased, specifying
the name and address of the landlord.
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---------------------------------------------------------------------------
---------------------------------------------------------------------------
9. State the complete address (including the county) of each location where
the Pledgor keeps any inventory or machinery and equipment, specifying (a)
in each case whether such location is owned or leased by the Pledgor and,
if leased, specifying the name and address of the landlord and (b) the
approximate book value of the (i) inventory and (ii) machinery and
equipment maintained at each such location.
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---------------------------------------------------------------------------
10. Has any of the Pledgor's inventory or machinery and equipment been located
during the past four months at any location other than the locations listed
in the answers to questions 5, 6, 7, 8 and 9? If so, state the complete
address (including the county) of each such location, specifying in each
case whether such location was owned or leased by the Pledgor and, if
leased, specifying the name and address of the landlord.
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---------------------------------------------------------------------------
---------------------------------------------------------------------------
11. Are any of the Pledgor's accounts receivables payable by the United States
Government or any department or agency thereof? If so, please state the
aggregate amount thereof and the percentage that those accounts receivables
are of all of the Pledgor's accounts receivables, in each case as of a
recent, specified date.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
12a. Please supply the following information with respect to each patent and
patent application in which the Pledgor has any interest (whether as owner,
licensee or otherwise):
Patents
-------
Nature of Interest (e.g.,
owner, licensee) Registered Patent No. Issue Date Country of Issue
-------------------------- --------------------- --------------------- ------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
Patent Applications
-------------------
Nature of Interest (e.g.,
owner, licensee) Serial No. Filing Date Country of Issue
-------------------------- --------------------- --------------------- ------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
b. If the Pledgor's interest in any of the foregoing is otherwise than as
owner, please describe the nature of such interest.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
13a. Please supply the following information with respect to each registered
trademark and trademark application in which the Pledgor has any interest
(whether as owner, licensee or otherwise):
Registered Trademarks
---------------------
Nature of
Interest (e.g.,
owner, Registered Registration Int'l Services Goods or Date Country of
licensee) Trademark No. Class Covered Covered Registered Registration
--------------- ------------ --------------- ------------- -------------- -------------- ------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Trademark Applications
----------------------
Trademark
Nature of Application
Interest (e.g., relates to Goods or Services Country of
owner, licensee) following Trademark Serial No. Int'l Class Covered Covered Application
----------------- ------------------- ---------- ------------------- ----------------- -----------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
b. If the Pledgor's interest in any of the foregoing is otherwise than as
owner, please describe the nature of such interest.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
14a. Please supply the following information with respect to each copyright and
copyright application in which the Pledgor has any interest (whether as
owner, licensee or otherwise):
Copyrights
----------
Nature of
Interest
(e.g., owner, Date of Country of
licensee) Copyright Copyright No. Property Covered Copyright Docket No. Registration
------------- --------- ------------- ---------------- --------- ---------- ------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
Copyright Applications
----------------------
Copyright application
Nature of Interest (e.g., relates to following
owner, licensee) Copyright Property Covered Country of Registration
-------------------------- --------------------- ---------------- ------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------
b. If the Pledgor's interest in any of the foregoing is otherwise than as
owner, please describe the nature of such interest.
--------------------------------------------------------------------------
--------------------------------------------------------------------------
--------------------------------------------------------------------------
15. State the following information, in each case as of the Agreement Date,
with respect to each security that is to constitute Collateral on the
Agreement Date.
Number of
Shares or Percent of
Certificated or Class or Principal Outstanding
Issuer Debt or Equity Uncertificated Series Amount Owned Class or Series
------------ ---------------- ----------------- ---------- -------------- -----------------
16. State the following information, in each case as of the Agreement Date,
with respect to each instrument that is to constitute Collateral on the
Agreement Date.
Percent of
Certificated or Class or Principal Amount Outstanding Class
Maker or Drawer Uncertificated Series Owned or Series
----------------- ---------------- ---------- ------------------ ------------------
17. State the following information, in each case as of the Agreement Date,
with respect to each securities account that is to constitute Collateral on
the Agreement Date.
Securities Intermediary's Jurisdiction
(Determined Under Uniform Commercial Code
Account No. Section 8-110(e))
----------- -----------------------------------------
18. State the following information, in each case as of the Agreement Date,
with respect to each security entitlement that is to constitute Collateral
on the Agreement Date.
Securities Intermediary Financial Asset(s)
----------------------- ------------------
No. of Shares % on Agreement Date
Class or or Principal of Outstanding Class
Issuer Series Amount or Series
--------- ---------- --------------- ---------------------
1(a) [Insert here name of applicable
Securities Intermediary]
[Security Account(s):
No. _______
No. _______]
(b) [Insert here Securities Intermediary's
Jurisdiction (Determined Under
Uniform Commercial
Code Section 8-110(e))]
2(a) [Insert here name of applicable
Securities Intermediary]
[Security Account(s):
No _______
No _______]
(b) [Insert here Securities Intermediary's
Jurisdiction (Determined Under
Uniform Commercial
Code Section 8-110(e))]
19. State the following information, in each case as of the Agreement Date,
with respect to each commodity account that is to constitute Collateral on
the Agreement Date.
Commodity Intermediary's Jurisdiction (Determined
Account No. Under Uniform Commercial Code Section 9-103(e))
------------ -------------------------------------------------
20. State the following information, in each case as of the Agreement Date,
with respect to each commodity contract that is to constitute collateral on
the Agreement Date.
Commodity Intermediary's Jurisdiction (Determined
Under Uniform Commercial Code Section 9-103(e)) If
Commodity Contract Is Maintained With Such Commodity
Description of Commodity Contract Intermediary
--------------------------------- ----------------------------------------------------
21. Does the Pledgor have any existing lockbox arrangements? If so, please
identify each bank or other entity with which any such arrangement is
maintained.
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-------------------------------------------------------------------------
The Pledgor hereby certifies that its answers to the foregoing questions
are complete and correct and confirms that such answers constitute
representations and warranties under the Security Agreement.
Date: _______________, 199_
[Pledgor]:
By
------------------------------
Name:
Title:
Schedule 5.01(a)-1
------------------
Securities Account Control Agreement
_______________, 19__
[Insert here name and address
of Securities Intermediary]
Attention:
Re: Securities Accounts
-------------------
You ("Securities Intermediary") hereby represent and warrant to, and agree
with, [insert here name of Secured Party] (the "Secured Party") as follows:
1. [Insert here name of pledgor] (the "Pledgor") maintains the following
securities accounts with Securities Intermediary at the specified offices of the
Securities Intermediary:
Account Number Office
--------------- ------
2. Until the Secured Party shall have notified the Securities Intermediary
in writing to the contrary, the Securities Intermediary:
(a) will comply, without further consent by the Pledgor, with entitlement
orders originated by the Secured Party relating to any one or more of the
present or future security entitlements carried in any of the securities
accounts listed in paragraph 1 above or in any securities account that the
Pledgor may in the future maintain with the Securities Intermediary,
whether at its main office or any of its branch offices;
(b) will make all payments due to the Pledgor representing dividends,
interest or other distributions on, or proceeds of the sale or other
disposition of, any securities or other financial assets that are now or
hereafter the subject of any of present or future security entitlements
carried in any of the Pledgor's present or future securities accounts with
the Securities Intermediary, directly to the Secured Party at its address
set forth below or at such other address as the Pledgor may hereafter
specify, without any reduction or deduction for any set-off, or counter
claim;
(c) will not execute and deliver, or otherwise become bound by, any agreement
(a "control agreement") under which the Securities Intermediary agrees with
any party other than the Pledgor or the Secured Party to comply with
entitlement orders originated by such party relating to any of the security
accounts or security entitlements that are the subject of this Securities
Account Control Agreement;
(d) will not grant any security interest in any financial asset that is the
subject of any security entitlement that is the subject of this Securities
Account Control Agreement; and
(e) hereby subordinates any security interest it may now or hereafter have in
any securities account, security entitlement, or financial asset that is
the subject of a security entitlement, that is the subject of this
Securities Account Control Agreement to the security interest therein, if
any, of the Secured Party.
3. Except for those listed on Annex A hereto, as of the date hereof, there
-------
are no (i)
control agreements outstanding or (ii) any security interests in any
of the securities accounts, securities entitlements, or financial assets that
are the subject of any security entitlement, that are the subjects of this
Securities Account Control Agreement.
4. The copy of the securities account agreement between the Pledgor and the
Securities Intermediary relating to the securities accounts listed in paragraph
1 above delivered to the Secured Party is, as of the date hereof, accurate and
complete.
5. The rights and duties of the Secured Party, the Securities Intermediary
and the Pledgor under this Securities Account Control Agreement shall be
governed by the law of the State of New York.
6. This Securities Account Control Agreement may be signed in any number of
counterparts each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
7. All of the provisions of this Securities Account Control Agreement shall
be binding upon and inure to the benefit of parties hereto and their respective
successors and assigns.
The Securities Intermediary hereby acknowledges that it has been informed
that (1) the securities accounts and the security entitlements carried therein
that are the subject of this Securities Account Control Agreement are the
subject of a security interest granted by the Pledgor to the Secured Party and
(2) the Pledgor has agreed with the Secured Party that such assets shall be
subject to no other security interests.
Very truly yours,
[Insert here name of Secured Party]
[Insert here address of Secured Party to which
payments are to be made]
Executed and Agreed to:
[Insert here name of the Securities Intermediary]
By:_________________________________
(Authorized Signature)
Consented to:
[Insert here name of the Pledgor]
By:__________________________________
(Authorized Signature)
Schedule 5.01(a)-2
------------------
Commodity Account Control Agreement
_______________, 19__
[Insert here name and address
of Commodity Intermediary]
Attention:
Re: Commodity Accounts
------------------
You ("Commodity Intermediary") hereby represent and warrant to, and agree
with, [insert here name of Secured Party] (the "Secured Party") as follows:
1. [Insert here name of pledgor] (the "Pledgor") maintains the following
commodity accounts with Commodity Intermediary at the specified offices of the
Commodity Intermediary:
Account Number Office
--------------- ------
2. Until the Secured Party shall have notified the Commodity Intermediary in
writing to the contrary, the Commodity Intermediary:
(a) will apply as directed by the Secured Party, without further consent by
the
Pledgor, any value distributed on account of any one or more of the
present or future commodity contracts carried in any of the commodity
accounts listed in paragraph 1 above or in any commodity account that the
Pledgor may in the future maintain with the Commodity Intermediary, whether
at its main office or any of its branch offices;
(b) will make all payments due to the Pledgor of any value distributed on
account of any commodity contracts carried in any of the Pledgor's present
or future commodity accounts with the Commodity Intermediary, directly to
the Secured Party at its address set forth below or at such other address
as the Pledgor may hereafter specify, without any reduction or deduction
for any set-off, or counter claim;
(c) will not execute and deliver, or otherwise become bound by, any agreement
(a "control agreement") under which the Commodity Intermediary agrees with
any party other than the Pledgor or the Secured Party to apply as directed
by such party any value distributed on account of any of the commodity
accounts or commodity contracts that are the subject of this Commodity
Account Control Agreement;
(d) will not grant any security interest in any commodity account or
commodity contract that is the subject of this Commodity Account Control
Agreement; and
(e) hereby subordinates any security interest it may now or hereafter have in
any commodity account or commodity contract that is the subject of this
Commodity Account Control Agreement to the security interest therein, if
any, of the Secured Party.
3. Except for those listed on Annex A hereto, as of the date hereof, there
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are no (i) control agreements outstanding or (ii) any security interests in any
of the commodity accounts or commodity contracts that are the subjects of this
Commodity Account Control Agreement.
4. The copy of the commodity account agreement between the Pledgor and
the Commodity Intermediary relating to the commodity accounts listed in
paragraph 1 above delivered to the Secured Party is, as of the date hereof,
accurate and complete.
5. The rights and duties of the Secured Party, the Commodity Intermediary
and the Pledgor under this Commodity Account Control Agreement shall be governed
by the law of the State of New York.
6. This Commodity Account Control Agreement may be signed in any number of
counterparts each of which shall be an original, with the same effect as if the
signatures thereto were upon the same instrument.
7. All of the provisions of this Commodity Account Control Agreement shall
be binding upon and inure to the benefit of parties hereto and their respective
successors and assigns.
The Commodity Intermediary hereby acknowledges that it has been informed that
(1) the commodity accounts and the contracts carried therein that are the
subject of this Commodity Account Control Agreement are the subject of a
security interest granted by the Pledgor to the Secured Party and (2) the
Pledgor has agreed with the Secured Party that such assets shall be subject to
no other security interests.
Very truly yours,
[Insert here name of Secured Party]
[Insert here address of Secured Party to which
payments are to be made]
Executed and Agreed to:
[Insert here name of the Commodity Intermediary]
By:_________________________________
(Authorized Signature)
Consented to:
[Insert here name of the Pledgor]
By:__________________________________
(Authorized Signature)
Execution Copy