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EXHIBIT 10.1
AMENDMENT and WAIVER dated as of March 30, 2001
(this "Amendment"), to the Credit Agreement dated as
of January 7, 2000 as heretofore amended (the "Credit
Agreement") among iXL ENTERPRISES, INC., a Delaware
corporation (the "Borrower"), the lenders party
thereto (the "Lenders"), and THE CHASE MANHATTAN
BANK, as administrative agent (in such capacity, the
"Administrative Agent").
A. Pursuant to the Credit Agreement, the Lenders have extended
credit to the Borrower.
B. The Borrower has requested that the Required Lenders and
the Administrative Agent agree to amend certain provisions of the Credit
Agreement, as hereinafter provided.
C. The undersigned Lenders and the Administrative Agent are
willing to amend the Credit Agreement, in each case pursuant to the terms and
subject to the conditions set forth herein.
D. Capitalized terms used but not defined herein shall have
the meanings assigned to them in the Credit Agreement, as amended hereby.
Accordingly, the parties hereto agree as follows:
SECTION 1. Amendments Relating to UK Accounts. Section 1.01 of
the Credit Agreement is hereby amended by:
(i) adding the following defined terms in the correct
alphabetical order:
"'iXL-UK' means iXL UK Limited, a corporation organized under
the laws of England and a wholly owned subsidiary of the Borrower."
"'UK Account' means an Account owed by the United Kingdom
offices of an Account Debtor organized under the laws of the United
Kingdom to an Accounts Receivable Subsidiary."
(ii) revising the definition of "Accounts Receivable
Subsidiary" by adding, immediately after the words "District of
Columbia", the words: "or, in the case of iXL-UK, under the laws of
England".
(iii) revising the definition of "Eligible Billed Accounts
Receivable" by (i) inserting in paragraph (g) thereof, immediately
prior to the existing language, the words "except in the case of a UK
Account," and (ii) revising paragraph
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(j) thereof by inserting immediately after the word "local" the words
"or foreign"; and
(iv) revising the definition of "Security Agreement" to read
in its entirety as follows:
"'Security Agreement' means, collectively, (i) the Security
Agreement substantially in the form of Exhibit F, among the Loan
Parties (other than iXL-UK) and the Collateral Agent for the benefit of
the Secured Parties and (ii) a Security Agreement in form and substance
satisfactory to the Collateral Agent between iXL-UK and the Collateral
Agent for the benefit of the Secured Parties pursuant to which the
Collateral Agent is granted a Lien on each UK Account of iXL-UK."
SECTION 2. Amendments Relating to Portfolio Investment
Borrowing Base Availability. (a) Section 1.01 of the Credit Agreement is hereby
amended by:
(i) adding the following defined term in the correct
alphabetical order:
"'Portfolio Investment Availability' means, on any date with
respect to any share of a Portfolio Investment owned on such date by
iXL Ventures Holdings or iXL Ventures, LP free and clear of all Liens
(other than those consisting of stockholder agreements and call rights
in effect on March 31, 2001), the amount set forth below opposite the
description of such Portfolio Investment (which amount will be adjusted
to reflect any stock splits, stock dividends, reverse stock splits,
combinations, mergers, business combinations or similar events in a
manner deemed appropriate by the Administrative Agent in its sole
discretion):
Per Share
Portfolio Investment Availability
-------------------- ------------
AppGenesys, Inc. $ 0.10
CyberStarts, Inc. 0.10
Digital Planet, Inc. 0.10
ProAct Technologies Corp. 0.20
Sekani, Inc. 0.10
Notwithstanding the foregoing, (a) the Portfolio Investment
Availability with respect to any share of a Portfolio Investment (i)
shall not exceed 10% of the current market price per share, in the case
of any class of Portfolio Investment that is publicly traded, or of the
equivalent conversion value of any Portfolio Investment that is
convertible into a class of security that is publicly traded, (ii)
shall be zero in the case of any Portfolio Investment issued by an
issuer that is subject (or any material portion of the assets of which
are subject) to any
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bankruptcy, insolvency, reorganization, or similar proceeding or that
is in default under any indenture or agreement relating to Indebtedness
for borrowed money and (iii) shall (subject to the foregoing clauses)
be recalculated to equal 10% of the equity value of a share of the
relevant security based on the price established in any cash sale of
equity securities by the relevant issuer to unaffiliated third parties
in a private equity capital transaction consummated after ▇▇▇▇▇ ▇▇,
▇▇▇▇, (▇) for purposes of inclusion in the Borrowing Base, the
aggregate Portfolio Investment Availability attributable to any single
Portfolio Investment shall not exceed and shall be limited to an amount
equal to 25% of the aggregate amount of Portfolio Investment
Availability attributable to all Portfolio Investments and (c) the
aggregate Portfolio Investment Availability for all Portfolio
Investments shall be deemed to be zero whenever Portfolio Investments
of fewer than four separate issuers are owned by iXL Ventures Holdings
or iXL Ventures, LP, and (d) under no circumstances will Portfolio
Investment Availability exceed $8,500,000. The Portfolio Investment
Availability with respect to any Portfolio Investment will be
determined by the Administrative Agent and notified to the Borrower at
such times as the Borrowing Base is computed hereunder, and such
determination shall be conclusive for all purposes hereof and shall be
reflected in any Borrowing Base Certificate delivered to the
Administrative Agent hereunder. The Borrower will notify the
Administrative Agent in reasonable detail (i) promptly of any merger,
business combination, stock split, stock dividend, private equity sale
or similar event affecting any Portfolio Investment, (ii) promptly of
any proposed sale or disposition of any Portfolio Investment and (iii)
not later than the date thereof, of any such sale or disposition that
has been consummated and of the Net Proceeds thereof, and the
Borrower's obligations under this sentence shall be deemed a covenant
under Section 5.02 for purposes of this Agreement."
(ii) revising the first sentence of the definition of
"Borrowing Base" to read in its entirety as follows: "Borrowing Base"
means an amount equal to the sum of (a) the Billed Receivable
Availability plus (b) the excess, if any, of (i) the aggregate
Portfolio Investment Availability over (ii) the aggregate amount of
obligations (including accrued and unpaid interest obligations) of iXL
Ventures, LP and iXL Ventures Holdings in respect of Indebtedness or
Guarantees (including under the iXL Ventures Guarantee), other than
obligations under the Loan Documents.
(b) Section 2.07 of the Credit Agreement is amended by
deleting the period (".") now appearing at the end of clause (c) thereof and
inserting the following language at the end of clause (c):
", provided that any such reduction in Revolving Commitments
attributable to Net Proceeds received as a result of any Prepayment
Event due to a
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sale or disposition of a Portfolio Investment or receipt of any return
of capital, liquidating distribution, or similar payment in respect of
a Portfolio Investment (a "Portfolio Investment Prepayment Event")
shall be in an amount equal to the greater of 50% of such Net Proceeds
or the amount of Portfolio Investment Availability attributable to such
Portfolio Investment; provided, further, however that (i) if any
Portfolio Investment Prepayment Event results in fewer than four
Portfolio Investments being held by iXL Ventures, LP, the Revolving
Commitments shall automatically be reduced at the time thereof by an
amount equal to the full amount of remaining Portfolio Investment
Availability immediately prior to such event, (ii) the aggregate amount
of reductions in Revolving Commitments attributable to Portfolio
Investment Prepayment Events shall not exceed $8,500,000 and (iii)
notwithstanding the foregoing, any reduction in the Revolving
Commitments as a result of a Portfolio Investment Prepayment Event will
be limited to the extent necessary so that, after giving effect
thereto, the Revolving Commitments are not less than $20,000,000 (or
such lesser amount in effect immediately prior to such Portfolio
Investment Prepayment Event)."
(c) Section 5.01 of the Credit Agreement is amended by
revising paragraph (f) thereof to read in its entirety as follows:
"(f) (i) within 20 days after the end of each calendar month
ended after the Effective Date (and, if requested by the Administrative
Agent at any other time when the Administrative Agent reasonably
believes that the then-existing Borrowing Base is materially
inaccurate, as soon as reasonably available but no later than 10 days
after the request) and (ii) on the date of any sale or disposition of
any Portfolio Investment or receipt of any return of capital,
liquidating distribution, or similar payment in respect to a Portfolio
Investment, a completed Borrowing Base Certificate in the form of
Exhibit G calculating and certifying the Borrowing Base in the case of
(i) above, as of the last day of such calendar month (or as of such
other requested date, as the case may be), or, in the case of (ii)
above, as of the date of such sale or disposition of such Portfolio
Investment or receipt of such return of capital, liquidating
distribution, or similar payment in respect to such Portfolio
Investment, in the case of both (i) and (ii), with supporting
documentation (including, without limitation, the documentation
described in Schedule 1 to the Borrowing Base Certificate), and in each
case signed on behalf of the Borrower by a Financial Officer thereof
and certified as being complete and correct in all material respects;"
(d) Exhibit G to the Credit Agreement is hereby replaced with
Exhibit G attached hereto.
SECTION 3. Other Amendments. (a) Section 1.01 of the Credit
Agreement is hereby amended by:
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(i) adding the following definitions in correct alphabetical
order:
"'iXL Ventures Holdings' means iXL Ventures Holdings, Inc., a
Delaware corporation."
"'iXL Ventures, LP' means iXL Ventures, LP, a Delaware limited
partnership."
"'iXL Ventures, LP Guarantee' means the guarantee by iXL
Ventures, LP in favor of ProAct Technologies Corp. dated December 19,
2000 entered into in connection with a note purchase agreement dated
December 19, 2000."
"'iXL Ventures PHC' means iXL Ventures PHC, Inc., a Delaware
corporation."
"'Required Cash Collateral Amount' means (i) during the period
from the Third Amendment Effective Date until September 30, 2001, an
amount equal to $10,000,000 less the aggregate amount of reductions in
Revolving Commitments, if any, pursuant to Section 2.07(e), (ii) during
the period from September 30, 2001, until the Revolving Maturity Date,
an amount equal to the greater of (x) $10,000,000 less the aggregate
amount of reductions in Revolving Commitments, if any, pursuant to
Section 2.07(e) and (y) (a) the lesser of $15,000,000 and the amount of
LC Exposure as a result of Letters of Credit that have been extended
beyond the Revolving Maturity Date during the period from March 31,
2001, to September 30, 2001, less (b) the aggregate amount of
reductions in Revolving Commitments, if any, pursuant to Section
2.07(e), and (iii) on and at all times after the Revolving Maturity
Date, an amount equal to the aggregate LC Exposure."
"'Portfolio Investment' means, on any date, each of the equity
investments listed below that is on such date owned by iXL Ventures
Holdings or iXL Ventures, LP:
Number of Shares
Subsidiary Loan owned on
Party Owner Issuer Type of Investment March 31, 2001
--------------- ------ ------------------ ----------------
iXL Ventures, LP AppGenesys, Inc. Series A/B Preferred Stock 20,000,000
iXL Ventures, LP CyberStarts, Inc. Common Stock 18,200,000
iXL Ventures, LP Digital Planet, Inc. Series B Preferred Stock 17,400,000
iXL Ventures, LP ProAct Technologies Corp. Common Stock 90,000,000
iXL Ventures, LP Sekani, Inc. Common Stock 7,899,900"
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"'ProAct' means ProAct Technologies Corp., a Delaware
corporation."
"'ProAct Subsidiaries' means ProAct and its subsidiaries."
"'Significant Subsidiary' means each Subsidiary other than iXL
Ventures Subsidiaries and a Joint Venture Subsidiary that either (i)
has gross assets in an amount greater than $50,000 or (ii) as of the
last day of any calendar month has gross revenues for the period of 12
months ending on such day (or any shorter period since its acquisition
or formation) in excess of $0, in each case determined on a
consolidated basis for such Subsidiary and its subsidiaries, if any."
"'Third Amendment Effective Date' means the date on which the
conditions in Section 7(a) of the Third Amendment and Waiver dated as
of March 30, 2001, have been satisfied."
"'UCC' means the Uniform Commercial Code in effect in the
State of New York as of the date hereof."
(ii) revising the definition of "Prepayment Event" to read in
its entirety as follows:
"'Prepayment Event' means (a) any sale, transfer or other
disposition (including pursuant to a sale and lease-back transaction)
of any property or asset of the Borrower or any of the Subsidiary Loan
Parties, other than (i) dispositions referred to in clause (b) below or
described in clauses (a), (b) and (c) of Section 6.05 and (ii) any
sale, transfer or other dispositions of property or assets by the
Borrower or any of the Subsidiary Loan Parties resulting in aggregate
Net Proceeds not exceeding $2,500,000 during any fiscal year of the
Borrower, provided that, if the Borrower shall deliver a certificate of
a Financial Officer to the Administrative Agent at the time of any such
event described in this clause (a) (x) setting forth the intent of the
Borrower or one of the Subsidiary Loan Parties to use the Net Proceeds
of such event to acquire other assets to be used in a line of business
of the type conducted by the Borrower and the Subsidiary Loan Parties
as of the Effective Date within 365 days of receipt of such Net
Proceeds and (y) certifying that no Default has occurred and is
continuing, then such event shall not constitute a Prepayment Event
except to the extent the Net Proceeds therefrom are not so used at the
end of such 365-day period, at which time such event shall be deemed a
Prepayment Event with Net Proceeds equal to the Net Proceeds so
remaining unused, (b) any dividend, distribution, liquidation or
dissolution of any ProAct Subsidiary, iXL Ventures Subsidiary or any
Joint Venture Subsidiary and any sale or disposition of any Portfolio
Investment or receipt of any return of capital, liquidating
distribution, or similar payment in respect of a Portfolio Investment,
(c) the incurrence by the Borrower or any of the Subsidiary Loan
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Parties of (i) Permitted Subordinated Indebtedness or (ii) any other
Indebtedness not permitted under Section 6.01, and (d) any casualty or
other insured damage to, or any taking under power of eminent domain or
by condemnation or similar proceeding of, any property or asset of the
Borrower or Subsidiary Loan Party, but only to the extent that the Net
Proceeds therefrom have not been applied to repair, restore or replace
such property or asset within 270 days of the receipt thereof (or
within 6 months of a binding commitment entered into during such 270
day period)."
(iii) revising the definition of "iXL Ventures" to read in its
entirety as follows:
"'iXL Ventures' means iXL Asset Management LLC, a Delaware
limited liability company."
(iv) revising the definition of "iXL Ventures Subsidiaries" to
read in its entirety as follows:
"'iXL Ventures Subsidiaries' means iXL Ventures and its
subsidiaries and iXL Ventures PHC."
(v) revising the definition of "Subsidiary Loan Party" to read
in its entirety as follows:
"'Subsidiary Loan Party' means any Subsidiary other than (a)
the ProAct Subsidiaries, (b) the iXL Ventures Subsidiaries, (c) any
Foreign Subsidiary (other than iXL-UK), (d) any Joint Venture
Subsidiary and (e) Subsidiaries which are not required to become
parties to the Loan Documents pursuant to Section 5.11; provided,
however, that, notwithstanding the provisions of Section 5.11 or 5.12,
iXL Ventures LP shall not be required to pledge any Equity Interests
other than its investments in ProAct and in Subsidiaries (other than
iXL Ventures PHC, Inc.) pursuant to any Pledge Agreement or to enter
into a Security Agreement, except as necessary to effect such required
pledges ."
(vi) removing in their entirety the definitions of "CFN" and
"CFN Subsidiaries".
(b) Each reference in the Credit Agreement to "CFN" and "CFN
Subsidiaries" is hereby replaced with a reference to "ProAct" and "ProAct
Subsidiaries", respectively.
(c) Section 2.04 is amended by revising paragraph (c) thereof
to read in its entirety as follows:
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"(c) Expiration Date. Each Letter of Credit shall expire at or
prior to the first anniversary of the Revolving Maturity Date."
(d) Section 2.07 of the Credit Agreement is amended by adding
a new paragraph (e) thereto to read in its entirety as follows:
"(e) Simultaneously with the expiration, termination,
surrender or reduction in the amount of any Letter of Credit
outstanding on March 31, 2001 (in each case other than to the extent
attributable to a drawing thereunder), the Revolving Commitments shall
automatically be reduced by an aggregate amount equal to the amount of
such Letter of Credit (in the case of any such expiration, termination
or surrender) or reduction, as the case may be, provided that the
Revolving Commitments shall not be reduced below $20,000,000 as a
result of this Section 2.07(e)."
(e) Section 2.08(a) of the Credit Agreement is amended by
adding the following immediately after the existing text thereof:
"The Borrower hereby unconditionally promises to deposit in a
cash collateral account with the Administrative Agent, in the name of
the Administrative Agent and for the benefit of the Lenders, in
immediately available funds such amounts as shall be necessary to
maintain the Required Cash Collateral Amount in such cash collateral
account at all times on and after the Third Amendment Effective Date.
Such deposits shall be held by the Administrative Agent as collateral
for the payment and performance of the reimbursement obligations of the
Borrower in respect of such Letters of Credit and any other obligations
of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the
investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the
Borrower's risk and expense, such deposits shall not bear interest.
Interest or profits, if any, on such investments shall accumulate in
such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements
for which it has not been reimbursed and, to the extent not so applied,
shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time. Prior to the Revolving
Maturity Date, the Administrative Agent shall from time to time at the
request of the Borrower release to the Borrower such funds deposited in
such cash collateral account (not constituting interest or earnings),
if any, as are in excess of the Required Cash Collateral Amount;
provided that no such release will be made to the extent it would
result in the Revolving Exposure that is not cash collateralized
exceeding the Borrowing Base then in effect. At such time as no Letters
of Credit
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remain outstanding, all reimbursement obligations of the Borrower in
respect of Letters of Credit and all other obligations of the Borrower
hereunder have been paid in full, the balance, if any, of funds
remaining in such cash collateral account will be promptly returned to
the Borrower. The Borrower agrees to pay, for so long as there is LC
Exposure, participation fees, fronting fees and the Issuing Bank's
standard fees as provided in Sections 2.10(b) and (d).
(f) Section 5.11 of the Credit Agreement is hereby amended to
read in its entirety as follows:
"SECTION 5.11. Additional Subsidiaries. If any Significant
Subsidiary is formed or acquired, or any Subsidiary becomes a
Significant Subsidiary, after the Effective Date, the Borrower will
notify the Administrative Agent and the Lenders thereof and (a) will
cause such Significant Subsidiary (other than a Foreign Subsidiary or a
Joint Venture Subsidiary) to become a party to the Guarantee Agreement,
the Indemnity, Subrogation and Contribution Agreement and each
applicable Security Document in the manner provided therein within 10
Days after such Significant Subsidiary is formed or acquired or first
becomes a Significant Subsidiary and will promptly take such actions to
create and perfect Liens on such Significant Subsidiary's assets to
secure the Obligations as the Administrative Agent or the Required
Lenders shall reasonably request and (b) if any Equity Interests or
Indebtedness of any Significant Subsidiary or any Joint Venture having
assets in excess of $50,000 are owned by or on behalf of any Loan
Party, will cause such Equity Interests and Indebtedness (and
promissory notes, if any, evidencing such Indebtedness) to be pledged
pursuant to the Pledge Agreement or the Security Agreement within 10
days after such Significant Subsidiary or Joint Venture is formed or
acquired or first becomes a Significant Subsidiary (provided that the
foregoing shall not require the Loan Parties to pledge more than 65% of
the outstanding shares of common stock of any Foreign Subsidiary)."
(g) Section 6.01 of the Credit Agreement is amended by
deleting the "and" at the end of clause (vii) of 6.01(a), replacing the period
(".") at the end of (viii) of clause 6.01(a) with "; and", and adding a new
clause (ix) thereto to read as follows:
"(ix) The iXL Ventures, LP Guarantee and Guarantees of
interest obligations and, on a nonrecourse basis, of other obligations
entered into by iXL Ventures, LP in connection with a Synthetic Sale
Transaction permitted by Section 6.05(e);"
(h) Section 6.02 of the Credit Agreement is amended by
redesignating clause (vi) as clause (vii), deleting the word "and" at the end of
clause (v) of such Section and adding a new clause (vi) thereto to read as
follows:
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"(vi) Liens on portfolio investments owned by iXL Ventures, LP
consisting of stockholder agreements and call rights existing and as in
effect on March 31, 2001;"
(i) Section 6.02 of the Credit Agreement is amended by
replacing the period (".") at the end of clause (vii) (formerly (vi) of 6.02
which was redesignated in (h) above) with "; and", and adding a new clause
(viii) thereto to read as follows:
(viii) Lien on the outstanding Equity Interests held by iXL
Ventures, LP in iXL Ventures PHC granted to ProAct in connection with
the iXL Ventures, LP Guarantee."
(j) Section 6.03 of the Credit Agreement is amended by adding
a new paragraph (d) to read as follows:
"(d) The Borrower will not permit iXL Ventures Holdings or iXL
Ventures, LP (i) to engage in any business or activities other than
owning portfolio Equity Interests and activities incidental thereto,
(ii) to incur or permit to exist any Indebtedness or any Liens on any
of their assets other than Permitted Encumbrances and Liens consisting
of stockholder agreements and call rights existing and as in effect on
March 31, 2001 relating to their portfolio equity investments and Liens
permitted by Section 6.02(viii) or (iii) to transfer any Portfolio
Investment to any other Subsidiary except in connection with a
simultaneous Synthetic Sale Transaction permitted by Section 6.05(e)."
(k) Section 6.04 of the Credit Agreement is amended by
redesignating paragraphs (p) and (q) as paragraphs (q) and (r), respectively and
by adding a new paragraph (p) to read as follows:
"(q) Equity Interests owned by iXL Ventures, LP as of ▇▇▇▇▇
▇▇, ▇▇▇▇;"
(▇) Section 6.04 of the Credit Agreement is amended by
deleting the "and" at the end of clause (q) (formerly (p) of 6.04 which was
redesignated in (k) above) and replacing the period (".") at the end of clause
(r) (formerly (q) of 6.04 which was redesignated in (k) above) with "; and", and
adding a new paragraph (s) to read as follows:
"(s) Guarantees permitted under 6.01(a)(ix);"
(m) Section 6.05 of the Credit Agreement is hereby amended by
revising paragraph (e) thereof to read as follows:
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"(e) sales, transfers and dispositions of Portfolio
Investments to unaffiliated third parties or the issuers thereof,
including pursuant to any arrangement (a "Synthetic Sale Transaction")
under which an amount representing the purchase price of such Portfolio
Investment is loaned in cash by such third party or issuer to a
Subsidiary against the pledge by such Subsidiary of such Portfolio
Investment (or the stock of a single purpose Subsidiary that is not a
Loan Party formed solely to hold such Portfolio Investment), provided
that, (i) except with respect to obligations to pay interest thereon,
such loan shall be nonrecourse except to the pledged Portfolio
Investment, (ii) the proceeds of such loan shall be received by or
dividended upon receipt to the Borrower or a Subsidiary Loan Party and
(iii) any such arrangement shall for all purposes of this Agreement be
deemed to be a current sale and transfer of the relevant Portfolio
Investment resulting in a Prepayment Event at the time such loan is
made and the proceeds of such loan (less applicable amounts referred to
in clause (b) of the definition of Net Proceeds) shall be deemed to be
Net Proceeds of such Prepayment Event; provided that such sale,
transfer or disposition of any such Portfolio Investments other than
ProAct shall be approved by the Borrower's board of directors or by the
Required Lenders; provided, further that such sale, transfer or
disposition of Equity Interests of ProAct shall be subject to the prior
approval of the Required Lenders which approval will be considered in a
reasonably expeditious manner and will not be unreasonably withheld
(and the Administrative Agent shall, in connection with any such
permitted transaction, effectuate the prompt release of any lien on
such portfolio equity investments and prompt delivery of any documents
pledged to the Administrative Agent with respect to such portfolio
equity investments)."
(n) Section 6.14 of the Credit Agreement is hereby amended to
read in its entirety as follows:
"SECTION 6.14. Minimum Consolidated EBITDA. The Borrower will
not permit Consolidated EBITDA for any period set forth below to be
less than the amount set forth below opposite such period:
Period Amount
------ ------------
Fiscal Quarter Ending March 31, 2001 $-21,000,000
Fiscal Quarter Ending June 30, 2001 0
Fiscal Quarter Ending September 30, 2001 5,000,000
Fiscal Quarter Ending December 31, 2001 7,500,000"
(o) Section 6.17 of the Credit Agreement is hereby amended to
read in its entirety as follows:
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"SECTION 6.17. Minimum Liquidity. At any time the aggregate
Revolving Commitments exceed $20,000,000, the Borrower will not on any
date permit the sum of (a) (i) the lesser of the aggregate Revolving
Commitments of the Lenders and the Borrowing Base available at such
time, minus (ii) the aggregate Revolving Exposures of the Lenders on
such date, and (b) cash and cash equivalents owned by the Borrower on
such date to be less than $10,000,000.
(p) Article VI of the Credit Agreement is hereby amended by
adding a new Section 6.18 as follows:
"SECTION 6.18. Covenant not to Certificate Accounts. The
Borrower will not, nor will the Borrower permit any of its Subsidiaries
to take any action that would cause any amounts owing to the Borrower
or any Loan Party by the Borrower or any other Subsidiary to be
evidenced by an "instrument" within the meaning of Article 9 of the
UCC. Notwithstanding the above, such actions will be permitted to be
taken if the Borrower or such Subsidiary, as the case may be, provides
simultaneous delivery of any such instrument to the Administrative
Agent."
(q) Article VI of the Credit Agreement is hereby amended by
adding a new Section 6.19 as follows:
"SECTION 6.19. Covenant not to Certificate Partnership
Interests. The Borrower will not, nor will the Borrower permit any of
its Subsidiaries to take any action that would cause the partnership
interests in iXL Ventures, LP to constitute a "security" within the
meaning of Article 8 of the UCC. Notwithstanding the above, such
actions will be permitted to be taken if the Borrower or such
Subsidiary, as the case may be, provides simultaneous delivery of any
such security to the Administrative Agent."
(r) Schedule II to the Pledge Agreement is hereby replaced
with Schedule II attached hereto.
SECTION 4. Waiver; Suspension of Future Borrowings. Upon the
effectiveness of this Section, the Required Lenders hereby waive any
Event of Default resulting from (i) a failure to comply with Section
6.14 or 6.17 of the Credit Agreement in respect of any period ending on
or prior to December 31, 2000, (ii) a failure to comply with Section
6.03 of the Credit Agreement as a result of the merger of iXL Ventures,
Inc. into the Borrower and (iii) a failure to comply with Section 5.11
of the Credit Agreement prior to the date on which the conditions set
forth in Section 7(a) are satisfied, but only if such conditions are
satisfied on or prior to March 31, 2001. Until the date on which (i)
the Borrower supplies the Administrative Agent and its counsel with all
information, financing statements and other documents required in order
to effect all UCC fixture
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filings required under the Loan Documents, and such filings have been made and
(ii) either (x) the Borrower has caused to be delivered to the Administrative
Agent a fully executed custody and control agreement pledging the Borrower's
depository and investment accounts with CSFB USA Inc. in accordance with the
Loan Documents or (y) the Borrower has established depository and investment
accounts with the Administrative Agent and transferred its cash, cash
equivalents and other Permitted Investments to such accounts and pledged them in
accordance with the Loan Documents, the Borrower shall not be allowed to request
Borrowings or the issuance of Letters of Credit under the Credit Agreement, and
any such request shall be of no effect.
SECTION 5. Reduction of Commitments. Upon the effectiveness of
this Section, the Revolving Commitments shall be automatically and permanently
reduced from $50,000,000 to $35,000,000, such reduction to be applied ratably
among the Lenders in accordance with their respective Commitments (the Required
Lenders hereby waiving any prior notice of such reduction under Section 2.07 of
the Credit Agreement).
SECTION 6. Representations and Warranties. To induce the other
parties hereto to enter into this Amendment, the Borrower represents and
warrants to each of the Lenders and the Administrative Agent that, after giving
effect to this Amendment:
(a) The representations and warranties set forth in Article
III of the Credit Agreement are true and correct in all material respects on and
as of the date hereof, except (i) for Sections 3.04(d) and 3.11 and (ii) to the
extent such representations and warranties expressly relate to an earlier date.
(b) No Default or Event of Default (other than as described in
the first sentence of Section 4) has occurred and is continuing.
(c) Neither iXL Ventures Holdings, Inc. nor iXL Ventures, LP
has any outstanding Indebtedness (other than the limited recourse guarantee,
pursuant to the iXL Ventures, LP Guarantee as defined in Section 2 of this
Amendment, by iXL Ventures, LP of not more than $20 million of indebtedness of
iXL Ventures PHC, Inc. to ProAct; such guarantee is recourse only with respect
to interest obligations, but not with respect to payment of principal; otherwise
recourse on such guarantee is limited to a pledge of the stock of iXL Ventures
PHC, Inc. as held by iXL Ventures, LP), and no assets of iXL Ventures Holdings,
Inc. or iXL Ventures, LP are subject to any Lien not permitted by Section 6.02
of the Credit Agreement.
(d) The organizational chart attached hereto as Exhibit A is
true, correct and complete as of the date hereof and (i) depicts the
organizational structure and full legal names of the Borrower and all of its
Subsidiaries and the respective ownership interests thereof, (ii) indicates all
equity investments of the Borrower and each such Subsidiary (other than of iXL
Asset Management, LLC and its Subsidiaries) and (iii)
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indicates any interest of the Borrower or any of its Subsidiaries in any Joint
Venture Subsidiary.
(e) The following entities are not Significant Subsidiaries
(as defined in Section 3 hereof) on the date of this Amendment: Internet
Excellence, Inc., iXL International Holdings, Inc., iXL Hong Kong, iXL Italia,
SRL, iXL Brasilia Ltd., iXL Japan, K.K., Redwing Consulting Ltd., Redwing
International, Inc., iXL Germany GmbH and Tessera GmbH.
(f) The pledged partnership interests in iXL Ventures, LP
constitutes a "general intangible" and not "investment property" under Article 9
of the UCC.
(g) The intercompany accounts which are not evidenced by a
note constitute "accounts" and not "instruments" under Article 9 of the UCC.
SECTION 7. Conditions to Effectiveness. (a) This Amendment,
other than the provisions of Sections 1 and 2 hereof, shall become effective, as
of March 30, 2001, only upon satisfaction of the following conditions on or
prior to April 2, 2001:
(i) the Administrative Agent shall have received counterparts
of this Amendment that, when taken together, bear the signatures of the
Borrower and the Required Lenders;
(ii) the Borrower shall have received from a group of
investors reasonably satisfactory to the Administrative Agent a cash
equity contribution of at least $15,000,000 in exchange for the
issuance of shares of common stock of the Borrower, and the Borrower
shall have deposited the Required Cash Collateral Amount (as defined in
Section 3 hereof) in the cash collateral account referred to in Section
2.08(a), as amended hereby, and the Administrative Agent shall, in each
case, have been provided with evidence thereof satisfactory to it;
(iii) the Borrower shall have paid to the Administrative
Agent, for the account of each Lender that has executed and delivered
this Amendment prior to 12 noon, New York time, on April 2, 2001, a
nonrefundable amendment fee, payable in immediately available funds,
equal to .75% of such Lender's Revolving Commitment, as reduced
pursuant to Section 5 hereof;
(iv) the Borrower shall have paid all amounts payable to the
Administrative Agent, the Collateral Agent and their counsel pursuant
to Section 9.03(a) of the Credit Agreement, to the extent such amounts
have been invoiced (including, without limitation, the outstanding
statements dated August 1, 2000, February 1, 2001, and March 27, 2001);
and
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(v) the Borrower shall have delivered to the Collateral Agent,
in accordance with the Pledge Agreement, certificates representing
90,000,000 shares of common stock of ProAct Technologies Corp. owned by
the Borrower (issued in exchange for a certificate covering a greater
number of shares surrendered for exchange by the Collateral Agent to
permit the transfer of certain shares of ProAct Technologies Corp.),
along with duly executed, undated stock powers relating to such
certificates, and the Borrower shall have complied with the provisions
of Section 5.11 of the Credit Agreement, as amended hereby.
(b) The provisions of Section 2 of this Amendment shall become
effective upon satisfaction, on or prior to April 2, 2001, of the conditions set
forth in paragraph (a) of this Section and upon satisfaction of the following
additional conditions:
(i) Each of iXL Ventures Holdings, Inc. and iXL Ventures, LP
shall have executed and delivered the Guarantee Agreement, the
Indemnity, Subrogation and Contribution Agreement and the Pledge
Agreement (including pursuant to entering into a supplemental agreement
in the form provided therein), and iXL Ventures Holdings, Inc. shall
have executed and delivered the Security Agreement (including pursuant
to entering into a supplemental agreement in the form provided
therein), and all outstanding Equity Interests of each of iXL Ventures
Holdings, Inc. and iXL Ventures, LP shall have been pledged by one or
more Loan Parties to the Collateral Agent for the benefit of the
Secured Parties under the Pledge Agreement and all executed originals
thereof in sufficient quantities along with all executed filings
necessary to perfect security interests under the Security Documents
shall have been placed for delivery with an overnight courier to the
Administrative Agent's counsel; and
(ii) the Administrative Agent shall have been provided such
opinions of counsel, addressed to the Lenders, and such evidence of
corporate proceedings or other actions, in each case with respect the
matters referred to in clause (i) above and in form and substance
acceptable to it, as the Administrative Agent may reasonably request.
(c) The provisions of Section 1 of this Amendment shall become
effective upon satisfaction of the conditions set forth in paragraph (a) and (b)
of this Section and upon satisfaction of the following additional conditions:
(i) iXL UK Limited shall have become a party to the Guarantee
Agreement by executing and delivering a supplement in the form attached
thereto or a counterpart of the Guarantee Agreement with such changes
as the Administrative Agent may approve as being appropriate to reflect
iXL UK Limited's legal status as an English company;
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(ii) iXL UK Limited shall have executed and delivered a
Security Agreement in form and substance satisfactory to the Collateral
Agent pursuant to which the UK Accounts and the proceeds thereof (but
not other assets of iXL UK Limited) are pledged to the Collateral Agent
for the benefit of the Secured Parties, and all actions necessary to
establish such pledge as a perfected, first priority Lien shall have
been taken (including any required notification to the obligor on the
UK Accounts); and
(iii) the Administrative Agent shall have been provided such
opinions of counsel, addressed to the Lenders, and such evidence of
corporate proceedings or other actions, in each case with respect the
matters referred to in clause (i) and (ii) above and in form and
substance acceptable to it, as the Administrative Agent may reasonably
request.
SECTION 8. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit, impair,
constitute a waiver of, or otherwise affect the rights and remedies of the
Lenders, the Administrative Agent or the Collateral Agent under the Credit
Agreement or any other Loan Document, and shall not alter, modify, amend or in
any way affect any of the terms, conditions, obligations, covenants or
agreements contained in the Credit Agreement or any other Loan Document, all of
which are ratified and affirmed in all respects and shall continue in full force
and effect. Nothing herein shall be deemed to entitle any Loan Party to a
consent to, or a waiver, amendment, modification or other change of, any of the
terms, conditions, obligations, covenants or agreements contained in the Credit
Agreement or any other Loan Document in similar or different circumstances. This
Amendment shall apply and be effective only with respect to the provisions of
the Credit Agreement specifically referred to herein. After the effectiveness of
any amendments hereunder, any reference to the Credit Agreement shall mean the
Credit Agreement, as modified thereby. This Amendment shall constitute a "Loan
Document" for all purposes of the Credit Agreement and the other Loan Documents.
SECTION 9. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same contract.
Delivery of an executed counterpart of a signature page of this Amendment by
facsimile transmission shall be as effective as delivery of a manually executed
counterpart hereof.
SECTION 10. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
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SECTION 11. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
SECTION 12. Expenses. The Borrower agrees to reimburse the
Administrative Agent for all out-of-pocket expenses in connection with this
Amendment, including the reasonable fees, charges and disbursements of Cravath,
Swaine & ▇▇▇▇▇, counsel for the Administrative Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first above written.
iXL ENTERPRISES, INC.,
by /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
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THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
by /s/ ▇▇▇▇ ▇. ▇▇▇▇▇ III
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇ III
Title: MANAGING DIRECTOR
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FIRST UNION NATIONAL BANK,
by /S/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: VICE PRESIDENT
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FIRST HAWAIIAN BANK,
by /S/ ▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: SVP
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GENERAL ELECTRIC CAPITAL
CORPORATION,
by /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: DULY AUTHORIZED SIGNATORY
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ABN AMRO BANK N.V.,
by /S/ ▇▇▇▇▇▇▇ O.R. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ O.R. ▇▇▇▇▇
Title: SVP
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Exhibit G
iXL Enterprises, Inc.
Form of Monthly Borrowing Base Certificate(*)
For the Month Ended
A. Billed Receivable Availability
(from page 2 of 3) $
B. Portfolio Investment Availability $
C. Lower of:
Borrowing Base (line A plus line B) $
$
Revolving Commitment $
D. Aggregate principal amount of all Revolving
Loans outstanding $
E. LC Exposure $
F. Revolving Exposure (lines D + E) $
G. Excess Availability
(line C minus line F, if positive number) $
H. Mandatory prepayment
(line C minus line F, if negative number) $
Officer's Certification:
Pursuant to the Credit Agreement dated as of January 7, 2000 (capitalized terms
used herein shall have the meaning assigned to such terms in the Credit
Agreement), the undersigned certifies that the information provided in this
certificate to The Chase Manhattan Bank, as Administrative Agent, is accurate
and complete based on the accounting records of iXL Enterprises, Inc.
--------------------------------- ------------------------------
Signature & Title Date
--------------- ---------
---------------
(*) The Borrowing Base Certificate is to be accompanied by
documentation outlined in Schedule 1 to Exhibit G.
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2
iXL Enterprises, Inc.
Form of Monthly Borrowing Base Certificate(*)
For the Month Ended
Advance
Total Rate Availability
Total billed A/R per invoice date
agings: (a)
Less ineligible billed A/R:
Sole lawful and absolute title
Unapplied cash
Intercompany/affiliate/related party
>90 days old/ >60 days past due
50% cross age
Deferred revenue
Contra or offsetting payable
Disputed accounts/chargebacks
Insolvent account debtor
Foreign
Repurchase or return arrangements
(e.g., ▇▇▇▇ and hold, consignment, etc.)
Government
Customer deposit/retainage
No valid and perfected first
priority security interest
Credit reclass
Concentration cap at 25%
Other (to comply with terms of
Credit Agreement)
Total ineligible billed A/R
Eligible Billed A/R 75%
---------------
(*) The Borrowing Base Certificate is to be accompanied by
documentation outlined in Schedule 1 to Exhibit G.
(a) Amount must agree to Total Company amount on Monthly Activity
Report (page 3).
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3
iXL Enterprises, Inc.
Form of Monthly Borrowing Base Certificate(*)
Monthly Billed A/R Activity Report
For the Month Ended
Accounts Receivable
locations (b)
Total Company
Beginning billed A/R
+ Gross sales
- Collections/cash receipts
- Credits
- Allowances
- Discounts
- Write-offs
+ Other debit adjustments
- Other credit adjustments
= Ending billed A/R (c)
---------------
(*) The Borrowing Base Certificate is to be accompanied by
documentation outlined in Schedule 1 to Exhibit G.
(b) Rollforward must be prepared for each Accounts Receivable location,
including Atlanta, Boston, Charlotte, Chicago, New York, Richmond, San Diego,
Wakefield and Washington, D.C.
(c) Amount must agree to total billed A/R on Borrowing Base Certificate
(Page 1).
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Schedule 1 to Exhibit G
iXL Enterprises, Inc.
Reporting Requirements
The information detailed below is to be submitted for each office and
location of iXL Enterprises, Inc. (including Atlanta, Boston, Charlotte,
Chicago, New York, Richmond, San Diego, Wakefield and Washington, D.C.) on the
20th day following the end of each calendar month.
1. Borrowing Base Certificate in the form of Exhibit G, including
billed A/R rollforward per the Monthly Activity Report
(Exhibit G, page 2).
2. Supporting documentation and detailed schedules related to the
calculation of ineligibles and reserves.
3. Supporting documentation for the Monthly Activity Report
(Exhibit G, page 2), as follows:
- Total page of invoice (sales/billing) register
- Total page of cash receipts journal
- Total page of credit and adjustments register (should
include credit memos issued, write-offs, returns,
discounts and other credit adjustments)
4. Billed A/R aging by customer for each Accounts Receivable
Subsidiary.
5. Reconciliation of billed A/R aging reports to general ledger.
6. Analysis of deferred revenue for each Accounts Receivable
Subsidiary by contract/project with comparison to the
respective customer's aggregate billed A/R balance.
7. Accounts payable agings for each Accounts Receivable
Subsidiary.
8. Contract profitability analysis for the ten largest projects
(based on revenue) for each Accounts Receivable subsidiary.
(Note: this analysis is required only for the subsidiaries for
which it is available.)
In addition, iXL Ventures, LP shall submit supporting documentation and
detailed schedules setting forth the computation of Portfolio Investment
Availability, including, for each Portfolio Investment, the number of shares
owned, the current market value, if a trading market exists, and share price
based on most recent third party private capital funding.
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2
Submit to:
The Chase Manhattan Bank
Collateral Agent Services Group
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Gontaryk, AT
Tel.: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇