Exhibit 10.49
REVOLVING CREDIT AGREEMENT
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This REVOLVING CREDIT AGREEMENT (this "Agreement") is made as of May 14,
1997, by and among CMG INFORMATION SERVICES, INC. (the "Borrower"), a Delaware
corporation having its principal place of business at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, BANKBOSTON, N.A. (f/k/a THE FIRST
NATIONAL BANK OF BOSTON), a national banking association, and the other lending
institutions listed on Schedule 1 hereto and BANKBOSTON, N.A. as agent for
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itself and such other lending institutions.
1. DEFINITIONS:
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Certain capitalized terms are defined below:
Accounts: All rights of the Borrower or any of its Subsidiaries to any
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payment of money for services rendered, goods sold, leased or otherwise marketed
in the ordinary course of business, whether evidenced by or under or in respect
of a contract or instrument, and to all proceeds in respect thereof.
Affiliate: Any Person that would be considered to be an affiliate of the
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Borrower under Rule 144(a) of the Rules and Regulations of the Securities and
Exchange Commission, as in effect on the date hereof, if the Borrower were
issuing securities.
Agent: BankBoston, N.A. acting as agent for the Banks.
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Agent's Head Office: The Agent's head office located at 100 Federal
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▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as the Agent may
designate from time to time.
Agreement: See the preamble, which term shall include this Agreement and
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the Schedules and Exhibits hereto, all as amended and in effect from time to
time.
Assignment and Acceptance: See (S)11.
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Balance Sheet Date: July 31, 1996.
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BankBoston: BankBoston, N.A., a national banking association, in its
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individual capacity.
Banks: BankBoston and the other lending institutions listed on Schedule 1
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hereto and any other Person who becomes an assignee of any rights and
obligations of a Bank pursuant to (S)11.
Base Rate: The higher of (a) the annual rate of interest announced from
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time to time by BankBoston at its head office as its "base rate" and (b) one-
half of one percent (1/2%) above the Federal Funds Effective Rate.
Base Rate Loans: Revolving Credit Loans bearing interest calculated by
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reference to the Base Rate.
Blackxxun: Blackxxun Interactive Inc..
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Borrower: See the preamble.
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Borrowing Base: At the relevant time of reference thereto, an amount
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determined by the Agent by reference to the most recent Borrowing Base Report
which is equal to fifty percent (50%) of (a) the Determined Value of the
Borrower's Unrestricted Public Equity Security Investments less (b) the
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estimated federal or state taxes and transaction costs due to the United States
or any state thereof upon or after the liquidation of such shares as a result of
such liquidation.
Borrowing Base Report: A report, with supporting details satisfactory to
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the Agent and the Banks, setting forth the Borrower's computation of the
Borrowing Base, such report to be in the form of the Exhibit A attached hereto.
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Business Day: Any day on which banking institutions in Boston,
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Massachusetts, are open for the conduct of a substantial part of its commercial
banking business generally and, in the case of LIBOR Rate Loans, also a day
which is a LIBOR Business Day.
Capitalized Leases: Leases under which the Borrower or any of its
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Subsidiaries is the Lessee or obligor, the discounted, future rental payment
obligations under which are required to be capitalized on the consolidated
balance sheet of the Borrower and its Subsidiaries in accordance with GAAP.
Charter Documents: In respect of any entity, the certificate or articles
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of incorporation or organization and the by-laws of such entity, or other
constitutive documents of such entity.
Closing Date: The first date on which the conditions set forth in (S)6
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have been satisfied and any Revolving Credit Loans are to be made.
CMG@Ventures I: CMG@Ventures I, L.P., a Delaware limited partnership.
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CMG@Ventures II: CMG@Ventures II, L.P., a Delaware limited partnership.
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Commitment: With respect to each Bank, the amount set forth on Schedule 1
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hereto as the amount of such Bank's commitment to make Revolving
Credit Loans to the Borrower, as the same may be reduced from time to time or
terminated hereunder.
Commitment Percentage: With respect to each Bank, the percentage set forth
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on Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of
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all the Banks.
Compliance Certificate: See (S)7.1(a)(iv) hereof.
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Consent: In respect of any person or entity, any permit, license or
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exemption from, approval, consent of, registration or filing with any local,
state or federal governmental or regulatory agency or authority, required under
applicable law.
Consolidated Assets: All assets of the Borrower and its Subsidiaries
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determined on a consolidated basis in accordance with GAAP.
Consolidated Liabilities: All liabilities of the Borrower and its
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Subsidiaries determined on a consolidated basis in accordance with GAAP and all
Indebtedness of the Borrower and its Subsidiaries, whether or not so
classified.
Consolidated Tangible Net Worth: The excess of Consolidated Assets over
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Consolidated Liabilities, and less the sum of:
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(a) the total book value of all assets of the Borrower and its
Subsidiaries properly classified as intangible assets in accordance with
GAAP, including such items as good will, the purchase price of acquired
assets in excess of the fair market value thereof, trademarks, trade names,
service marks, brand names, copyrights, patents and licenses, and rights
with respect to the foregoing; plus
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(b) all amounts representing any write-up in the book value of any
assets of the Borrower or its Subsidiaries resulting from a revaluation
thereof subsequent to the Balance Sheet Date, except for the write-up, if
any, in unrealized gains recorded on securities available for sale; plus
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(c) to the extent otherwise includable in the computation of
Consolidated Tangible Net Worth, any subscriptions receivable.
Consolidated Total Debt Service: For any period, all scheduled mandatory
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payment of principal on Indebtedness and Capitalized Leases of the Borrower and
its Subsidiaries made or required to be made in that period plus the
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Consolidated Total Interest Expense of the Borrower and its Subsidiaries for
such period; provided, however, when calculating Consolidated Total Debt Service
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for purposes of compliance with (S)7.3(b) hereof, Consolidated Total Debt
Service shall exclude for such period (i) all Indebtedness of SalesLink,
Blackxxun and, to the extent not guaranteed by the Borrower, of CMG@Ventures I
and CMG@Ventures II; (ii) any mandatory payments of principal of Revolving
Credit
Loans and (iii) any mandatory payments of principal on Indebtedness of Long Lane
Trust.
Consolidated Total Interest Expense. For any period, the aggregate amount
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of interest required to be paid or accrued by the Borrower and its Subsidiaries
during such period on all Indebtedness of the Borrower and its Subsidiaries
outstanding during all or any part of such period, whether such interest was or
is required to be reflected as an item of expense or capitalized, including
payments consisting of interest in respect of Capitalized Leases and including
commitment fees, agency fees, facility fees, balance deficiency fees and similar
fees or expenses in connection with the borrowing of money.
Conversion Request: A notice by the Borrower to the Agent of the
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Borrower's election to convert or continue a Revolving Credit Loan in accordance
with (S)2.3 hereof.
Default: An event or act which with the giving of notice and/or the lapse
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of time, would become an Event of Default.
Determined Value: At the relevant time of reference thereto, that value
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which is determined by reference to the average of the last sales price of a
share of the Unrestricted Public Equity Investment reported on the principal
national securities exchange on which it is listed.
Domestic Lending Office: Initially, the office of each Bank designated as
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such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
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located within the United States that will be making or maintaining Base Rate
Loans.
Drawdown Date: The date on which any Revolving Credit Loan is made or is
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to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with (S)2.3.
Eligible Assignee: Any of (a) a commercial bank or finance company
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organized under the laws of the United States, or any State thereof or the
District of Columbia, and having total assets in excess of $1,000,000,000; (b) a
savings and loan association or savings bank organized under the laws of the
Untied States, or any State thereof or the District of Columbia, and having a
net worth of at least $100,000,000, calculated in accordance with GAAP; (c) a
commercial bank organized under the laws of any other country which is a member
of the Organization for Economic Cooperation and Development ( the "OECD"), or a
political subdivision of any such country, and having total assets in excess of
$1,000,000,000, provided, that such bank is acting through a branch or agency
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located in the country in which it is organized or another country which is also
a member of the OECD; (d) the central bank of any country which is a member of
the OECD; and (e) if, but only if, any Event of Default has occurred and is
continuing, any other bank, insurance company, commercial
finance company or other financial institution or other Person approved by the
Agent, such approval not to be unreasonably withheld.
Environmental Laws: All laws pertaining to environmental matters,
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including without limitation, the Resource Conservation and Recovery Act, the
Comprehensive Environmental Response Compensation and Liability Act of 1980, the
Superfund Amendments and Reauthorization Act of 1986, the Federal Clean Water
Act, the Federal Clean Air Act, the Toxic Substances Control Act, in each case
as amended, and all rules, regulations, judgments, decrees, orders and licenses
arising under all such laws.
ERISA: The Employee Retirement Income Security Act of 1974, as amended,
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and all rules, regulations, judgments, decrees, and orders arising thereunder.
Eurocurrency Reserve Rate: For any day with respect to a LIBOR Rate Loan,
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the maximum rate (expressed as a decimal) at which any lender subject thereto
would be required to maintain reserves under Regulation D of the Board of
Governors of the Federal Reserve System (or any successor or similar regulations
relating to such reserve requirements) against "Eurocurrency Liabilities" (as
that term is used in Regulation D), if such liabilities were outstanding. The
Eurocurrency Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurocurrency Reserve Rate.
Event of Default: Any of the events listed in (S)8 hereof.
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Federal Funds Effective Rate: For any day, the rate per annum equal to the
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weighted average of the rates on overnight federal funds transactions with
members of the Federal 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 the
quotations for such day on such transactions received by the Agent from three
funds brokers of recognized standing selected by the Agent.
Financials: In respect of any period, the consolidated balance sheet of
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any Person and its Subsidiaries as at the end of such period, and the related
statement of income and consolidated statement of cash flow for such period,
each setting forth in comparative form the figures for the previous comparable
fiscal period, all in reasonable detail and prepared in accordance with GAAP.
GAAP: Generally accepted accounting principles consistent with those
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adopted by the Financial Accounting Standards Board and its predecessor, (a)
generally, as in effect from time to time, and (b) for purposes of determining
compliance by the Borrower with its financial covenants set forth herein, as in
effect for the fiscal year therein reported in the most recent Financials
submitted to the Agent prior to execution of this Agreement.
Indebtedness: In respect of any entity, all obligations, contingent and
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otherwise, that in accordance with GAAP should be classified upon the obligor's
balance sheet as liabilities, or to which reference should be made by footnotes
thereto (excluding operating leases, if any), including in any event and whether
or not so classified, where the underlying obligation appears on the balance
sheet of such entity: (a) all debt and similar monetary obligations, whether
direct or indirect, (b) all liabilities secured by Liens, whether or not the
liability secured thereby shall have been assumed, (c) all guarantees,
endorsements and other contingent obligations whether direct or indirect in
respect of indebtedness of others, including any obligation to supply funds to
or in any manner to invest in, directly or indirectly, the debtor, to purchase
indebtedness, or to assure the owner of indebtedness against loss, through an
agreement to purchase goods, supplies or services for the purpose of enabling
the debtor to make payment of the indebtedness held by such owner or otherwise
and (d) all liabilities in respect of bankers' acceptances.
Interest Payment Date: (a) As to any Base Rate Loan, the last day of the
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calendar month which includes the Drawdown Date thereof; and (b) as to any LIBOR
Rate Loan in respect of which the Interest Period is (i) ninety (90) days or
less, the last day of such Interest Period and (ii) more than ninety (90) days,
the date that is ninety (90) days from the first day of such Interest Period
and, in addition, the last day of such Interest Period.
Interest Period: With respect to each Revolving Credit Loan (a) initially,
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the period commencing on the Drawdown Date of such Revolving Credit Loan and
ending on the last day of one of the periods set forth below, as selected by the
Borrower in a Loan Request (i) for any Base Rate Loans, the last day of the
calendar month; and (ii) for any LIBOR Rate Loan, 1, 2, or 3 months; and (b)
thereafter each period commencing on the last day of the immediately preceding
Interest Period applicable to such Revolving Credit Loan and ending on the last
day of one of the periods set forth above, as selected by the Borrower in a
Conversion Request; provided that all of the foregoing provisions relating to
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Interest Periods are subject to the following:
(a) if any Interest Period with respect to a LIBOR Rate Loan would
otherwise end on a day that is not a LIBOR Business Day, that Interest
Period shall be extended to the next succeeding LIBOR Business Day unless
the result of such extension would be to carry such Interest Period into
another calendar month, in which event such Interest Period shall end on
the immediately preceding LIBOR Business Day;
(b) if any Interest Period with respect to a Base Rate Loan would end
on a day that is not a Business Day, that Interest Period shall end on the
next succeeding Business Day;
(c) If the Borrower shall fail to give notice as provided in (S)2.3,
the Borrower shall be deemed to have requested a conversion of the affected
LIBOR Rate Loan to a Base Rate Loan and the continuance of all Base
Rate Loans as Base Rate Loans on the last day of the then current Interest
Period with respect thereto;
(d) any Interest Period relating to any LIBOR Rate Loan that begins
on the last LIBOR Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end
of such Interest Period) shall end on the last LIBOR Business Day of a
calendar month; and
(e) any Interest period relating to any LIBOR Rate Loan that would
otherwise extend beyond the Revolving Credit Loan Maturity Date shall end
on the Revolving Credit Loan Maturity Date.
Investment Policy: The Borrower's investment policy set forth on Schedule
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2 hereto.
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LIBOR Business Day: Any day on which commercial banks are open for
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international business (including dealings in U.S. dollar deposits) in London or
such other eurodollar interbank market as may be selected by the Agent in its
sole discretion acting in good faith.
LIBOR Lending Office: Initially, the office of each Bank designated as
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such in Schedule 1 hereto; thereafter, such other office of such Bank, if any,
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that shall be making or maintaining LIBOR Rate Loans.
LIBOR Rate: For any Interest Period with respect to a LIBOR Rate Loan, the
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rate of interest equal to (a) the rate determined by the Agent at which U.S.
dollar deposits for such Interest Period are offered based on information
presented on Telerate Page 3750 (or any successor publication or source selected
by the Bank in its reasonable discretion) at 11:00 a.m. (London time) on the
second LIBOR Business Day, prior to the first day of such Interest Period,
divided by (b) a number equal to 1.00 minus the Eurocurrency Reserve Rate, if
applicable.
LIBOR Rate Loans: Revolving Credit Loans bearing interest calculated by
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reference to the LIBOR Rate.
Liens: Any encumbrance, mortgage, pledge, hypothecation, charge,
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restriction or other security interest of any kind securing any obligation of
any entity or person.
Loan Documents: This Agreement and the Revolving Credit Notes, in each
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case as from time to time amended or supplemented.
Loan Request: See (S)2.2.
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Loans: The Revolving Credit Loan.
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Long Lane Trust:
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Majority Banks: As of any date, (a) if there are only two (2) Banks,
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Majority Banks shall mean all of the Banks, and (b) if there are three (3) or
more Banks the Banks whose aggregate Commitments constitute at least sixty six
and two thirds percent (66 2/3%) of the Total Commitment.
Materially Adverse Effect: Any materially adverse effect on the financial
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condition or business operations of the Borrower and its Subsidiaries taken
together or material impairment of the ability of the Borrower or any of its
Subsidiaries to perform its obligations hereunder or under any of the other Loan
Documents.
Minimum Debt Service Reserve: The amount which the Borrower and its
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Subsidiaries have set aside for the making of payments of principal and interest
payments on Indebtedness of the Borrower and its Subsidiaries as the same
becomes due and payable.
Obligations: All indebtedness, obligations and liabilities of the Borrower
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and its Subsidiaries to any of the Banks and the Agent, existing on the date of
this Agreement or arising thereafter, direct or indirect, joint or several,
absolute or contingent, matured or unmatured, liquidated or unliquidated,
secured or unsecured, arising by contract, operation of law or otherwise,
arising or incurred under this Agreement or any other Loan Document or in
respect of any of the Revolving Credit Loans made or any of the Revolving Credit
Notes or any documents, agreements or instruments executed in connection
therewith, or other instruments at any time evidencing any thereof.
Person: Any individual, corporation, partnership, trust, unincorporated
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association, business or other legal entity, and any government or any
governmental agency or political subdivision thereof.
Requirement of Law: In respect of any person or entity, any law, treaty,
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rule, regulation or determination of an arbitrator, court, or other governmental
authority, in each case applicable to or binding upon such person or entity or
affecting any of its property.
Revolving Credit Loan Maturity Date: May 14, 1998.
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Revolving Credit Loans: Revolving credit loans made or to be made by the
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Banks to the Borrower pursuant to (S)2 hereof.
Revolving Credit Note: See (S)2.2(c) hereof.
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SalesLink: SalesLink Corporation, a Massachusetts corporation and wholly-
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owned Subsidiary of the Borrower.
SalesLink Agreement: The Revolving Credit and Term Loan Agreement dated as
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of October 24, 1996 among SalesLink, the Borrower, Pacific Direct Marketing
Corp., BankBoston, N.A. (f/k/a The First National Bank of Boston) and the other
lending institutions party thereto (collectively, the "SalesLink
Banks") and BankBoston, N.A. as agent for the SalesLink Banks (the "SalesLink
Agent"), as the same may be amended, modified, supplemented or restated from
time to time.
Subsidiary: In respect of any Person, any business entity of which such
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Person at any time owns or controls directly or indirectly more than fifty
percent (50%) of the outstanding shares of stock having voting power, regardless
of whether such right to vote depends upon the occurrence of a contingency.
Total Commitment: The sum of the Commitments of the Banks, as in effect
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from time to time.
Unrestricted Public Equity Security Investment: The Borrower's and/or its
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Subsidiary's assets and Investments consisting of the common shares of Lycos,
Inc. and which shares are (a) not subject to any Liens and (b) freely marketable
(including, without limitation pursuant to a private placement or secondary
offering).
2. REVOLVING CREDIT FACILITY.
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2.1. Commitment to Lend. Upon the terms and subject to the conditions of
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this Agreement, each of the Banks severally agrees to lend to the Borrower such
sums that the Borrower may request, from the Closing Date until but not
including the Revolving Credit Loan Maturity Date, up to a maximum aggregate
amount outstanding (after giving effect to all amounts requested) at any one
time equal to such Bank's Commitment, provided that the sum of the outstanding
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amount of the Revolving Credit Loans (after giving effect to all amounts
requested) shall not at any time exceed the lesser of (a) the Total Commitment
and (b) the Borrowing Base. Revolving Credit Loans shall be in the minimum
aggregate amount of $100,000 or an integral multiple thereof.
2.2. Requests for Loans.
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(a) The Borrower shall give to the Agent written notice in form and
substance satisfactory to the Agent (or telephonic notice confirmed in
writing in form and substance satisfactory to the Agent) of each Revolving
Credit Loan being requested hereunder (a "Loan Request") (i) no later than
10:00 a.m. (Boston time) on the proposed Drawdown Date of any Base Rate
Loan and (ii) no less than three (3) LIBOR Business Days prior to the
proposed Drawdown Date of any LIBOR Rate Loan. Each such notice shall
specify (A) the principal amount of the Revolving Credit Loan being
requested, (B) the proposed Drawdown Date of such Revolving Credit Loan,
(C) in the event the Revolving Credit Loan being requested is a LIBOR Rate
Loan, the Interest Period for such Revolving Credit Loan and (D) whether
such Revolving Credit Loan shall be a Base Rate Loan or a LIBOR Rate Loan.
Promptly upon receipt of any such notice, the Agent shall notify each of
the Banks thereof. Each Loan Request shall be irrevocable and binding upon
the Borrower and shall obligate the
Borrower to accept the Revolving Credit Loan requested from the Banks on
the proposed Drawdown Date. Each Loan Request shall be in a minimum
aggregate amount of $100,000 or an integral multiple thereof.
(b) Notwithstanding the notice requirements set forth in (S)2.2(a)
and the minimum Revolving Credit Loan amount provisions contained in (S)2.1
and 2.2(a), Revolving Credit Loans may be made from time to time in the
following manner: the Banks may make Revolving Credit Loans to the
Borrower by entry of credits by the Agent to the Borrower's controlled
disbursement account (the "Disbursement Account") with the Agent to cover
checks and other charges which the Borrower has drawn or made against such
Disbursement Account. The Borrower hereby requests and authorizes the
Banks to make from time to time such Revolving Credit Loans by means of
appropriate entries of such credits sufficient to cover checks and other
charges then presented. The Borrower and the Banks may also agree to
effect such other controlled disbursement arrangements as may be mutually
satisfactory. The Borrower acknowledges and agrees that the making of such
Revolving Credit Loans in accordance with this (S)2.2(b) shall, in each
case, be subject in all respects to the provisions of this Agreement as if
they were Revolving Credit Loans covered by a Loan Request, including
without limitation, the limitations set forth in (S)2.1 and the requirement
that the applicable provisions of (S)6 be satisfied. All actions taken by
the Agent and the Banks pursuant to the provisions of this (S)2.2(b) shall
be conclusive and binding upon the Borrower.
(c) The obligation of the Borrower to repay to the Banks the
principal of the Revolving Credit Loans and interest accrued thereon shall
be evidenced by separate promissory notes (each a "Revolving Credit Note")
dated as of the Closing Date and completed with appropriate insertions.
One Revolving Credit Note shall be payable to the order of each Bank in a
principal amount equal to such Bank's Revolving Credit Loan Commitment or,
if less, the outstanding amount of all Revolving Credit Loans made by such
Bank, plus interest accrued thereon, as set forth in (S)2.4 below.
2.3. Conversion Options.
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2.3.1. Conversion to Different Loan Type. The Borrower may elect from
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time to time to convert any outstanding Revolving Credit Loan from a Base
Rate Loan to a LIBOR Rate Loan or from a LIBOR Rate Loan to a Base Rate
Loan, provided that (a) with respect to any such conversion of a LIBOR
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Rate Loan to a Base Rate Loan, the Borrower shall give the Agent at least
three (3) Business Day's prior written notice of such election; (b) with
respect to any such conversion of a Base Rate Loan to a LIBOR Rate Loan,
the Borrower shall give the Agent at least three (3) LIBOR Business Days
prior written notice of such election; (c) with respect to any such
conversion of a LIBOR Rate Loan into a Base Rate Loan, such conversion
shall only be made on the last day of the Interest
Period with respect thereto; and (d) no Revolving Credit Loan may be
converted into a LIBOR Rate Loan when any Default or Event of Default has
occurred and is continuing. On the date on which such conversion is being
made each Bank shall take such action as is necessary to transfer its
Commitment Percentage of such Revolving Credit Loans to its Domestic
Lending Office or its LIBOR Lending Office, as the case may be. All or any
part of Revolving Credit Loans may be converted as provided herein,
provided that any partial conversion shall be in an aggregate principal
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amount of $100,000 or a whole multiple thereof. Each Conversion Request
relating to the conversion of a Base Rate Loan to a LIBOR Rate Loan shall
be irrevocable by the Borrower.
2.3.2. Continuation of Loan Type. Any Base Rate Loan or LIBOR Rate
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Loan may be continued as such upon the expiration of an Interest Period
with respect thereto by compliance by the Borrower with the notice
provisions contained in (S)2.3.1; provided that no LIBOR Rate Loan may be
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continued as such when any Default or Event of Default has occurred and is
continuing, but shall be automatically converted to a Base Rate Loan on the
last day of the first Interest Period relating thereto ending during the
continuance of any Default or Event of Default of which officers of the
Agent active upon the Borrower's account have actual knowledge. In the
event that the Borrower fails to provide any such notice with respect to
the continuation of any LIBOR Rate Loan as such, then such LIBOR Rate Loan
shall be automatically converted to a Base Rate Loan on the last day of the
first Interest Period relating thereto.
2.3.3. LIBOR Rate Loans. Any conversion to or from LIBOR Rate Loans
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shall be in such amounts and be made pursuant to such elections so that,
after giving effect thereto, the aggregate principal amount of all LIBOR
Rate Loans having the same Interest Period shall not be less than $100,000
or a whole multiple thereof, and there shall not be more than three (3)
outstanding Revolving Credit Loans which are LIBOR Rate Loans at any time.
2.4. Interest. So long as no Event of Default is continuing, and except
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as otherwise provided herein, (a) each Base Rate Loan shall bear interest for
the period commencing with the Drawdown Date thereof and ending of the last day
of the Interest Period with respect thereto at the rate of one half of one
percent (1/2%) per annum above the Base Rate; (b) each LIBOR Rate Loan shall
bear interest for the period commencing with the Drawdown Date thereof and
ending on the last day of the Interest Period with respect thereto at the rate
of two and one-half percent (2 1/2%) per annum above the LIBOR Rate determined
for such Interest Period; and (c) the Borrower promises to pay interest on each
Revolving Credit Loan in arrears on each Interest Payment Date with respect
thereto. While an Event of Default is continuing, amounts payable under any of
the Loan Documents shall bear interest (compounded monthly and payable on demand
in respect of overdue amounts) at a rate per annum which is equal four percent
(4%) above the rate of interest otherwise applicable to the Revolving Credit
Loans hereunder until such amount is paid in full or (as the case may be) such
Event of Default has been cured or waived in writing by the Majority Banks
(after as well as before judgment).
2.5. Repayments and Prepayments. The Borrower hereby agrees to pay to the
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Agent for the benefit of the Banks on the Revolving Credit Loan Maturity Date
the entire unpaid principal of and interest on all Revolving Credit Loans. If at
any time the aggregate amount of all outstanding Revolving Credit Loans exceeds
the lesser of (a) the Total Commitment and (b) the Borrowing Base, then the
Borrower shall immediately pay the amount of such excess to the Agent for the
respective accounts of the Banks for application to the Revolving Credit Loans.
Each prepayment of Revolving Credit Loans shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal amount
of each Bank's Revolving Credit Note, with adjustments to be extent practicable
to equalize any prior payments or repayments not exactly in proportion. The
Borrower may elect to prepay the outstanding principal of all or any part of any
Revolving Credit Loan, without premium or penalty, in a minimum amount of
$100,000 or an integral multiple thereof, upon written notice to the Agent given
by 10:00 a.m. Boston time on the date of such prepayment, of the amount to be
prepaid. Each partial prepayment shall be allocated among the Banks, in
proportion, as nearly as practicable, to the respective unpaid principal amount
of each Bank's Revolving Credit Note, with adjustments to the extent practicable
to equalize any prior repayments not exactly in proportion. The Borrower shall
be entitled to reborrow before the Revolving Credit Loan Maturity Date such
amounts, upon the terms and subject to the conditions of this Agreement. Each
repayment or prepayment of principal of any Revolving Credit Loan shall be
accompanied by payment of the unpaid interest accrued to such date on the
principal being repaid or prepaid. The Borrower may elect to reduce or terminate
the Total Commitment by a minimum principal amount of $100,000 or an integral
multiple thereof, upon written notice to the Agent given by 10:00 a.m. Boston
time at least two (2) Business Days prior to the date of such reduction or
termination. The Borrower shall not be entitled to reinstate the Commitments
following such reduction or termination.
2.6. Funds for Revolving Credit Loan.
-------------------------------
2.6.1. Funding Procedures. Not later than 11:00 a.m. (Boston time) on
------------------
the proposed Drawdown Date of any Revolving Credit Loans, each of the Banks
will make available to the Agent, at the Agent's Head Office, in
immediately available funds, the amount of such Bank's Commitment
Percentage of the amount of the requested Revolving Credit Loans. Upon
receipt from each Bank of such amount, and upon receipt of the documents
required by (S)6 and the satisfaction of the other conditions set forth
therein, to the extent applicable, the Agent will make available to the
Borrower the aggregate amount of such Revolving Credit Loans made available
to the Agent by the Banks. The failure or refusal of any Bank to make
available to the Agent at the aforesaid time and place on
any Drawdown Date the amount of its Commitment Percentage of the requested
Revolving Credit Loans shall not relieve any other Bank from its several
obligation hereunder to make available to the Agent the amount of such
other Bank's Commitment Percentage of any requested Revolving Credit Loans.
2.6.2. Advances by Agent. The Agent may, unless notified to the
-----------------
contrary by any Bank prior to a Drawdown Date, assume that such Bank has
made available to the Agent on such Drawdown Date the amount of such Bank's
Commitment Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes available to the Agent such amount
on a date after such Drawdown Date, such Bank shall pay to the Agent on
demand an amount equal to the product of (a) the average computed for the
period referred to in clause (c) below, of the weighted average interest
rate paid by the Agent for federal funds acquired by the Agent during each
day included in such period, times (b) the amount of such Bank's
-----
Commitment Percentage of such Revolving Credit Loans, times (c) a fraction,
-----
the numerator of which is the number of days that elapse from and including
such Drawdown Date to the date on which the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans shall become
immediately available to the Agent, and the denominator of which is 365. A
statement of the Agent submitted to such Bank with respect to any amounts
owing under this paragraph shall be prima facie evidence of the amount
----- -----
due and owing to the Agent by such Bank. If the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans is not made available
to the Agent by such Bank within three (3) Business Days following such
Drawdown Date, the Agent shall be entitled to recover such amount from the
Borrower on demand, with interest thereon at the rate per annum applicable
to the Revolving Credit Loans made on such Drawdown Date.
3. CHANGES IN CIRCUMSTANCES, ETC.
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3.1. Inability to Determine LIBOR Rate. In the event, prior to the
--------- -- --------- ----- ----
commencement of any Interest Period relating to any LIBOR Rate Loan, the Agent
shall determine or be notified by the Majority Banks that adequate and
reasonable methods do not exist for ascertaining the LIBOR Rate that would
otherwise determine the rate of interest to be applicable to any LIBOR Rate Loan
during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Banks) to the Borrower and the Banks. In such event (a) any Loan Request or
Conversion Request with respect to LIBOR Rate Loans shall be automatically
withdrawn and shall be deemed a request for a Base Rate Loan, (b) each LIBOR
Rate Loan will automatically, on the last day of the then current Interest
Period relating thereto, become a Base Rate Loan, and (c) the obligations of the
Banks to make LIBOR Rate Loans shall be suspended until the Agent or the
Majority
Banks determines that the circumstances giving rise to such suspension no longer
exist, whereupon the Agent or, as the case may be, the Agent upon the
instruction of the Majority Banks shall so notify the Borrower and the Banks.
3.2. Illegality. Notwithstanding any other provisions herein, if any
----------
present or future law, regulation, treaty or directive or in the interpretation
or application thereof shall make it unlawful for any Bank to make or maintain
LIBOR Rate Loans, such Bank shall forthwith give notice of such circumstances to
the Borrower and the other Banks and thereupon (a) the commitment of such Bank
to make LIBOR Rate Loans or convert Base Rate Loans to LIBOR Rate Loans shall
forthwith be suspended and (b) such Bank's Revolving Credit Loans then
outstanding as LIBOR Rate Loans, if any, shall be converted automatically to
Base Rate Loans on the last day of each Interest Period applicable to such LIBOR
Rate Loans or within such earlier period as may be required by law. The Borrower
hereby agrees promptly to pay the Agent for the account of such Bank, upon
demand by such Bank, any additional amounts necessary to compensate such Bank
for any costs incurred by such Bank in making any conversion in accordance with
this (S)3.2, including the discounted present value of any interest or fees
payable by such Bank to lenders of funds obtained by it in order to make or
maintain its LIBOR Loans hereunder.
3.3. Changes in Circumstances. If, on or after the date hereof any Bank or
------- -- -------------
the Agent determines that (a) the adoption of, or any change in, any applicable
law, rule, regulation or guideline or the interpretation or administration
thereof (whether or not having the force of law), or (b) compliance by such Bank
or the Agent or its parent holding company with any guideline, request or
directive (whether or not having the force of law), (i) has the effect of
reducing the return on the Bank's, the Agent's or such holding company's capital
as a consequence of the Commitment or the Revolving Credit Loans to a level
below that which such Bank, the Agent or such holding company could have
achieved but for such adoption, change or compliance by any amount deemed by
such Bank or the Agent to be material, or (ii) shall subject such Bank to any
tax, duty or other charge with respect to any LIBOR Rate Loan or any Revolving
Credit Note, or shall change the basis of taxation of payments to such Bank of
the principal of or interest on, LIBOR Rate Loans or in respect of any other
amount due under this Agreement in respect of LIBOR Rate Loans (other than with
respect to taxes based upon such Bank's net income); or (iii) shall impose,
modify or deem applicable any reserve, special deposit or similar requirement
(including, without limitation, any imposed by the Board of Governors of the
Federal Reserve System, but excluding with respect to any LIBOR Rate Loan any
such requirement included in the applicable Eurocurrency Reserve Rate) against
assets of, deposits with or for the account of, or credit extended by, any Bank
or the Agent, or shall impose on any Bank, the Agent or the London interbank
market any other condition affecting LIBOR Rate Loans or the Revolving Credit
Notes, and the result of any of the foregoing is to increase the cost to any
Bank of making or maintaining any LIBOR Rate Loan, or to reduce the amount of
any sum received or receivable by such Bank under this Agreement or under any
Revolving Credit Note with respect to any Revolving
Credit Loan, by an amount reasonably deemed by such Bank or the Agent to be
material, then such Bank or the Agent may notify the Borrower thereof. The
Borrower agrees to pay to the Agent for the account of such Bank or the Agent,
as the case may be, (A) the amount of the Borrower's allocable share of the
amount of such reduction in the return on capital as and when such reduction is
determined, upon presentation by such Bank of a statement in the amount and
setting forth such Bank's calculation thereof, which statement shall be deemed
true and correct absent manifest error and (B) such additional amount or amounts
as will compensate such Bank for such other increased costs or reduction. Each
Bank agrees to allocate shares of such reduction among the Borrower and such
Bank's other customers similarly situated on a fair and non-discriminatory
basis.
3.4. Certificate. A certificate setting forth any additional amounts
-----------
payable pursuant to (S)3.3 and a brief explanation of such amounts which are
due, submitted by any Bank or the Agent to the Borrower, shall be conclusive,
absent manifest error, that such amounts are due and owing.
3.5. Indemnity. The Borrower agrees to indemnify each Bank and to hold
---------
each Bank harmless from and against any loss, cost or expense that such Bank may
sustain or incur as a consequence of (a) default by the Borrower in payment of
the principal amount of or any interest on any LIBOR Rate Loans as and when due
and payable, including any such loss or expense arising from interest or fees
payable by such Bank to lenders of funds obtained by it in order to maintain its
LIBOR Rate Loans, (b) default by the Borrower in making a borrowing or
conversion after the Borrower has given (or is deemed to have given) a Loan
Request or a Conversion Request relating thereto in accordance with (S)2.2 or
(S)2.3 or (c) the making of any payment of a LIBOR Rate Loan or the making of
any conversion of any such Revolving Credit Loan to a Base Rate Loan on a day
that is not the last day of the applicable Interest Period with respect thereto,
including interest or fees payable by any Bank to lenders of funds obtained by
it in order to maintain any such LIBOR Rate Loans.
4. FEES AND PAYMENTS.
-----------------
Contemporaneously with execution and delivery of this Agreement, the
Borrower shall pay to the Agent for its own account a closing fee in the amount
of $50,000. The Borrower shall pay to the Agent for the Agent's own account an
agent's fee at the times and in the amounts determined by the Agent and the
Borrower. The Borrower shall pay to the Agent for the pro rata accounts of the
--- ----
Banks, on the first day of each calendar quarter hereafter, and upon the
Revolving Credit Loan Maturity Date or the date upon which the Total Commitment
is no longer in effect, a commitment fee calculated at a rate per annum which is
equal to one half of one percent (1/2%) of the average daily difference by which
the Total Commitment amount exceeds the aggregate sum of the outstanding
Revolving Credit Loans during the preceding calendar quarter or portion thereof.
All payments to be made by the Borrower hereunder or under any of the other Loan
Documents shall be made in U.S. dollars in immediately
available funds at the Agent's Head Office, without set-off or counterclaim and
without any withholding or deduction whatsoever. Each Bank and the Agent shall
be entitled to charge any account of the Borrower with such Bank for any sum due
and payable by the Borrower to such Bank hereunder or under any of the other
Loan Documents. If any payment hereunder is required to be made on a day which
is not a Business Day, it shall be paid on the immediately succeeding Business
Day, with interest and any applicable fees adjusted accordingly. All
computations of interest or of the commitment fee payable hereunder shall be
made by the Bank on the basis of actual days elapsed and on a 360-day year.
5. REPRESENTATIONS AND WARRANTIES.
------------------------------
The Borrower represents and warrants to the Banks and the Agent on the date
hereof, on the date of any Loan Request, on each Drawdown Date that:
(a) each of the Borrower and its Subsidiaries is duly organized,
validly existing, and in good standing under the laws of its jurisdiction
of incorporation and is duly qualified and in good standing in every other
jurisdiction where it is doing business, and the execution, delivery and
performance by each of the Borrower and its Subsidiaries of the Loan
Documents to which it is a party (i) are within its corporate authority,
(ii) have been duly authorized, (iii) do not conflict with or contravene
its Charter Documents;
(b) upon execution and delivery thereof, each Loan Document shall
constitute the legal, valid and binding obligation of the Borrower and its
Subsidiaries party thereto, enforceable in accordance with its terms;
(c) each of the Borrower and its Subsidiaries has good and marketable
title to all its material properties, subject only to Liens permitted
hereunder, and possesses all assets, including intellectual properties,
franchises and Consents, adequate for the conduct of its business as now
conducted, without known conflict with any rights of others. Each of the
Borrower and its Subsidiaries maintains insurance with financially
responsible insurers, copies of the policies for which have been previously
delivered to the Agent, covering such risks and in such amounts and with
such deductibles as are customary in the each of the Borrower's or such
Subsidiary's business and are adequate;
(d) the Borrower has provided to the Agent its audited Financials as
at July 31, 1996, and for the fiscal period then ended, and such Financials
are complete and correct and fairly present the position of the Borrower
and its Subsidiaries on a consolidated basis as at such date and for such
period in accordance with GAAP consistently applied;
(e) since July 31, 1996, there has been no materially adverse change
of any kind in the Borrower or any of its Subsidiaries which would have a
Materially Adverse Effect;
(f) there are no legal or other proceedings or investigations pending
or threatened against the Borrower or any of its Subsidiaries before any
court, tribunal or regulatory authority which would, if adversely
determined, alone or together, have a Materially Adverse Effect;
(g) the execution, delivery, performance of its obligations, and
exercise of its rights under the Loan Documents by each of the Borrower and
its Subsidiaries, including borrowing under this Agreement (i) do not
require any Consents; and (ii) are not and will not be in conflict with or
prohibited or prevented by (A) any Requirement of Law, or (B) any Charter
Document, corporate minute or resolution, instrument, agreement or
provision thereof, in each case binding on it or affecting its property;
(h) neither the Borrower nor any of its Subsidiaries is in violation
of (i) any Charter Document, corporate minute or resolution, (ii) any
instrument or agreement, in each case binding on it or affecting its
property, or (iii) any Requirement of Law, in a manner which could have a
Materially Adverse Effect, including, without limitation, all applicable
federal and state tax laws, ERISA and Environmental Laws;
(i) as of the Closing Date, the Borrower has no Subsidiaries other
than those Subsidiaries set forth on Schedule 5(i)(1) hereto and neither
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the Borrower nor any Subsidiary is a party to any partnership or joint
venture except as set forth on Schedule 5(i)(2) hereto;
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(j) no representation or warranty made by the Borrower or any of its
Subsidiaries in this Agreement or any Loan Document or in any agreement,
instrument, document, certificate, statement or letter furnished to the
Agent or any Bank by or on behalf of the Borrower or any such Subsidiary in
connection with any of the transactions contemplated by any of the Loan
Documents contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained
therein not misleading in light of the circumstances in which they are
made; and
(k) the proceeds of the Revolving Credit Loans shall be used for
permitted acquisitions under (S)7.2(e) and for working capital and general
corporate purposes of the Borrower and its Subsidiaries. No portion of any
Revolving Credit Loan is to be used for the purpose of purchasing or
carrying any "margin security" or "margin stock" as such terms are used in
Regulations U and X of the Board of Governors of the Federal Reserve
System, 12 C.F.R. Parts 221 and 224.
6. CONDITIONS PRECEDENT.
--------------------
In addition to the making of the foregoing representations and warranties
and the delivery of the Loan Documents and such other documents and the taking
of such actions as the Agent and each Bank may require at or prior to the time
of executing this Agreement, the obligation of any Bank to make any Revolving
Credit Loan to the Borrower hereunder, is subject to the satisfaction of the
following further conditions precedent:
(a) each of the representations and warranties of each of the
Borrower and its Subsidiaries to the Agent and the Banks herein, in any of
the other Loan Documents to which such Person is a party or any documents,
certificate or other paper or notice in connection herewith shall be true
and correct in all material respects as of the time made or claimed to have
been made;
(b) no Default or Event of Default shall be continuing;
(c) all proceedings in connection with the transactions contemplated
hereby shall be in form and substance satisfactory to the Agent and the
Banks, and the Agent and the Banks shall have received all information and
documents as it may have reasonably requested;
(d) no change shall have occurred in any law or regulation or in the
interpretation thereof that in the reasonable opinion of the Agent or any
Bank would make it unlawful for such Bank to make such Revolving Credit
Loan;
(e) the Borrower shall have delivered to the Agent and the Banks (i)
certified copies of its Charter Documents; (ii) evidence that all corporate
action necessary for the valid execution, delivery and performance by the
Borrower of the Loan Documents to which it is a party has been duly and
effectively taken; (iii) an incumbency certificate signed by a duly
authorized officer of the Borrower, and giving the name and bearing a
specimen signature of each individual who shall be authorized to sign, in
the name and on behalf of the Borrower, each of the Loan Documents to which
each is a party and to give notices and to take action on the Borrower's
behalf under the Loan Documents; (iv) a solvency certificate of the
Borrower in form and substance satisfactory to the Agent; and (v) a
favorable legal opinion addressed to the Agent and the Banks in form and
substance satisfactory to the Agent and the Banks from counsel to the
Borrower;
(f) the Borrower shall have paid to the Agent the closing fee and the
agent's fee as set forth in (S)4 hereof;
(g) the Agent and the Banks shall have received an opinion of counsel
to the Borrower satisfactory to the Agent and the Banks; and
(h) the Agent and the Banks shall have received from the Borrower the
initial Borrowing Base Report dated as of the Closing Date.
7. COVENANTS.
---------
7.1. Affirmative Covenants. The Borrower agrees that until the
---------------------
termination of the Commitment and the payment and satisfaction in full of all
the Obligations, the Borrower will, and will cause each of its Subsidiaries to
comply with, its obligations as set forth throughout this Agreement and to:
(a) furnish the Agent and the Banks: (i) as soon as available but in
any event within ninety (90) days after the close of each fiscal year, the
Borrower's audited consolidated and consolidating Financials for such
fiscal year, certified by the Borrower's accountants, and the Borrower's
consolidating Financials for such fiscal period; (ii) as soon as available
but in any event within forty-five (45) days after the end of each fiscal
quarter of the Borrower, the Borrower's unaudited consolidated and
consolidating Financials for such quarter, certified by its chief financial
officer; (iii) as soon as available but in any event within thirty (30)
days after the end of each month in each fiscal year of the Borrower,
unaudited monthly consolidated Financials for such month, certified by its
chief financial officer; (iv) together with the quarterly and annual
audited Financials, a certificate of the Borrower (the "Compliance
Certificate") setting forth computations demonstrating compliance with the
Borrower's financial covenants set forth herein, and certifying that no
Default or Event of Default has occurred, or if it has, the actions taken
by the Borrower with respect thereto; (v) within thirty (30) days after the
end of each calendar month or at such earlier time as the Agent may
request, a certificate of the Borrower setting forth computations
demonstrating compliance with (S)7.3(b) hereof for the next twenty-four
calendar months, calculated on a pro forma basis, with the calculation of
--- -----
Consolidated Total Interest Expense being calculated such that the amount
of interest required to be paid or accrued by (1) the Borrower to the Banks
on the Revolving Credit Loans shall be calculated as if the outstanding
amount of the Revolving Credit Loans on such date equaled the Total
Commitment on such date and that such Revolving Credit Loans were Base Rate
Loans; and (2) notwithstanding anything to the contrary contained in any
agreement, document or instrument otherwise evidencing any Indebtedness of
Long Lane Trust, such Indebtedness shall bear interest at the rate of 8.6%
per annum for the period from the Closing Date through January 1, 1998 and
one-half of one percent per annum above the Base Rate thereafter; (vi)
within fifteen (15) days after the end of each calendar month or at such
earlier time as the Agent may request, a Borrowing Base Report setting
forth the Borrowing Base as at the end of such calendar month; provided,
however, in the event the Determined Value of the Unrestricted Public
Equity Investment is at any time less than $9.375 per share, the Borrower
shall deliver to the Agent a Borrowing Base Report as frequently as the
Agent shall require; (vii) contemporaneously with the
delivery thereof, copies of all accountants' management letters delivered
to the Borrower or any of its Subsidiaries; and (viii) from time to time
such other financial data and information as the Agent or any Bank may
request;
(b) keep true and accurate books of account in accordance with GAAP,
maintain its current fiscal year and permit the Agent or any Bank or its
designated representatives to inspect the Borrower's premises during normal
business hours, to examine and be advised as to such or other business
records upon the request of the Agent or any Bank, and to permit the
Agent's or any Bank's commercial finance examiners to conduct periodic
commercial finance examinations which prior to an Event of Default shall be
no more often than two (2) per year;
(c) (i) maintain its corporate existence, business and assets, (ii)
keep its business and assets adequately insured, (iii) maintain its chief
executive office in the United States, (iv) continue to engage in
substantially similar lines of business, and (v) comply with all
Requirements of Law, including ERISA and Environmental Laws;
(d) notify the Agent and the Banks promptly in writing of (i) the
occurrence of any Default or Event of Default, (ii) any noncompliance with
ERISA or any Environmental Law or proceeding in respect thereof which could
have a Materially Adverse Effect, (iii) any change of address, (iv) any
threatened or pending litigation or similar proceeding affecting the
Borrower or its Subsidiaries or any material change in any such litigation
or proceeding previously reported and (v) claims against any assets or
properties of the Borrower or any such Subsidiaries encumbered in favor of
the Agent or any Bank;
(e) use the proceeds of the Revolving Credit Loans solely to finance
permitted acquisitions under (S)7.2(e) and for working capital purposes of
the Borrower and its Subsidiaries, and not for the carrying of "margin
security" or "margin stock" within the meaning of Regulations U and X of
the Board of Governors of the Federal Reserve System, 12 C.F.R. Parts 221
and 224;
(f) cooperate with the Agent and the Banks, take such action, execute
such documents, and provide such information as the Agent and the Banks may
from time to time reasonably request in order further to effect the
transactions contemplated by and the purposes of the Loan Documents; and
(g) provide the Agent with simultaneous written notice of (i) the
formation or acquisition of any Subsidiary formed or acquired after the
Closing Date and (ii) the sale, disposition or dissolution of any
Subsidiary of the Borrower.
7.2. Negative Covenants. The Borrower agrees that so long as there are any
------------------
Revolving Credit Loans outstanding and until the termination of the Commitment
and the payment and satisfaction in full of all the Obligations, the Borrower
will not and will not permit its Subsidiaries to:
(a) create, incur or assume any Indebtedness other than (i)
Indebtedness to the Agent and the Banks, (ii) current liabilities of the
Borrower or any of its Subsidiaries not incurred through the borrowing of
money or the obtaining of credit except credit on an open market
customarily extended, (iii) Indebtedness in respect of taxes or other
governmental charges contested in good faith and by appropriate proceedings
and for which adequate reserves have been taken; (iv) unsecured
Indebtedness of the Borrower and its Subsidiaries not otherwise provided
for in this (S)7.2(a) which, when taken together with all Indebtedness of
the Borrower and its Subsidiaries set forth on Schedule 7.2(a) does not
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exceed, in the aggregate, $5,000,000; (v) Indebtedness not included above
and listed on Schedule 7.2(a) hereto and (vi) Indebtedness of the Borrower
-------- ------
and SalesLink under the SalesLink Agreement;
(b) create or incur any Liens on any of the property or assets of the
Borrower or any of its Subsidiaries except (i) Liens securing the
Obligations; (ii) Liens securing taxes or other governmental charges not
yet due; (iii) deposits or pledges made in connection with social security
obligations; (iv) Liens of carriers, warehousemen, mechanics and
materialmen, less than 120 days old as to obligations not yet due; (v)
easements, rights-of-way, zoning restrictions and similar minor Liens which
individually and in the aggregate do not have a Materially Adverse Effect;
(vi) purchase money security interests in or purchase money mortgages on
real or personal property securing purchase money Indebtedness permitted by
(S)7.2(a)(ii), covering only the property so acquired; (vii) other Liens
existing on the date hereof and listed on Schedule 7.2(b) hereto; and
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(viii) Liens to secure the Indebtedness permitted by (S)7.2(a)(vi);
(c) with respect to the Borrower and its Subsidiaries, make any
investments other than investments in (i) marketable obligations of the
United States maturing within one (1) year, (ii) certificates of deposit,
bankers' acceptances and time and demand deposits of United States banks
having total assets in excess of $1,000,000,000, (iii) Investments existing
on the date hereof and listed on Schedule 7.2(c) hereto; (iv) Investments
-------- ------
made by the Borrower in compliance with its Investment Policy; or (v) such
other investments as the Agent and the Majority Banks may from time to time
approve in writing;
(d) with respect to the Borrower and its Subsidiaries, make any
distributions on or in respect of its capital of any nature whatsoever,
other than dividends payable solely in shares of common stock or
distributions by Subsidiaries of the Borrower to the Borrower; provided,
--------
however, the Borrower shall be permitted to make distributions not
-------
otherwise permitted hereunder so long as no Default or Event of Default has
occurred and is continuing and would not exist as a result thereof;
(e) become party to a merger or sale-leaseback transaction, or to
effect any disposition of assets other than in the ordinary course, and
other than the sale of shares of a wholly-owned Subsidiary of the Borrower
so long as the net cash proceeds of such sale received by the Borrower are
equal to or greater than the carrying costs of the remaining shares of such
Subsidiary after giving effect to such sale, or to purchase, lease or
otherwise acquire assets other than in the ordinary course; provided,
--------
however, the Borrower shall be permitted to acquire the assets and/or stock
-------
of another entity so long as (i) such entity is in the same or a similar
line of business as the Borrower; (ii) the Borrower has provided the Bank
with five (5) Business Days prior written notice of such acquisition, which
notice shall include a reasonably detailed description of the acquisition;
(iii) the business and/or entity to be acquired would not subject the Agent
or any Bank to regulatory or third party approvals in connection with the
exercise of its rights and remedies under this Agreement or the other Loan
Documents; (iv) the Borrower has demonstrated to the satisfaction of the
Agent and the Banks, based on a pro forma Compliance Certificate,
--- -----
compliance with (S)7.3 on a pro forma basis immediately prior to and after
--- -----
giving effect to any such acquisition; (v) the business and assets so
acquired in each such acquisition shall be acquired by the Borrower free
and clear of all liens and Indebtedness; and (vi) the aggregate purchase
price of all acquisitions permitted hereunder does not exceed $11,000,000
during the term of this Agreement;
(f) make any change in or amendment to the Borrower's or any
Subsidiary's Charter Documents unless such change or amendment that would
not have any adverse effect on the Agent's or any Bank's interest under the
Loan Documents or the Borrower's or such Subsidiary's obligations under the
Loan Documents;
(g) the Borrower will not make any material change in its Investment
Policy;
(h) enter into any agreement, contract or arrangement (other than the
Credit Agreement and the other Loan Documents) restricting the ability of
any of the Borrower's Subsidiaries to pay or make dividends or
distributions in cash or kind, to make loans, advances or other payments of
whatsoever nature or to make transfers or distributions of all or any part
of its assets to the Borrower; and
(i) enter into any agreement (excluding this Agreement and the Loan
Documents) prohibiting the creation or assumption of any Lien upon any of
its properties, revenues or assets of the Borrower or its Subsidiaries,
whether now owned or hereafter acquired, (including,
without limitation, the Borrower's interest in CMG@Ventures I and
CMG@Ventures II) other than agreements with Persons prohibiting any such
lien on such assets in which such Person has a prior security interest
which is a Permitted Lien.
7.3. Financial Covenants. The Borrower agrees that so long as there are
-------------------
any Revolving Credit Loans outstanding and until the termination of the
Commitment and the payment and satisfaction in full of all the Obligations, the
Borrower will not:
(a) make capital expenditures which in the aggregate and on a
consolidated basis exceed $3,700,000 in any fiscal year; provided, however,
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that, if during any fiscal year the amount of capital expenditures
permitted for that fiscal year is not so utilized, such unutilized amount
may be utilized in the next succeeding fiscal year but not in any
subsequent fiscal year;
(b) permit the Minimum Debt Service Reserve at any time to be less
than the greater of (i) $5,000,000 or (ii) 24 months of Consolidated Total
Debt Service from the date of determination.
(c) permit Consolidated Tangible Net Worth at any time to be less than
$14,000,000 in the aggregate for such period.
8. EVENTS OF DEFAULT; ACCELERATION.
-------------------------------
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay when due and payable any principal
of the Revolving Credit Loans when the same becomes due;
(b) the Borrower shall fail to pay interest on the Revolving Credit
Loans, or any other sum due under any of the Loan Documents within two (2)
Business Days after the date on which the same shall have first become due
and payable;
(c) the Borrower or any Subsidiary shall fail to perform any term,
covenant or agreement contained in (S)(S)7.1(a), 7.1(d) through (h), 7.2
and 7.3;
(d) the Borrower or any Subsidiary shall fail to perform any other
term, covenant or agreement contained in the Loan Documents within fifteen
(15) days after the Agent has given written notice of such failure to the
Borrower;
(e) any representation or warranty of the Borrower or any of its
Subsidiaries in the Loan Documents or in any certificate or notice given in
connection therewith shall have been false or misleading in any material
respect at the time made or deemed to have been made;
(f) the Borrower or any of its Subsidiaries shall be in default
(after any applicable period of grace or cure period) under any agreement
or agreements evidencing Indebtedness owing to the Bank or any affiliates
of the Bank, or in excess of $500,000 in aggregate principal amount, or
shall fail to pay such Indebtedness when due, or within any applicable
period of grace;
(g) any of the Loan Documents shall cease to be in full force and
effect,
(h) the Borrower or any of its Subsidiaries (i) shall make an
assignment for the benefit of creditors, (ii) shall be adjudicated bankrupt
or insolvent, (iii) shall seek the appointment of, or be the subject of an
order appointing, a trustee, liquidator or receiver as to all or part of
its assets, (iv) shall commence, approve or consent to, any case or
proceeding under any bankruptcy, reorganization or similar law and, in the
case of an involuntary case or proceeding, such case or proceeding is not
dismissed within forty-five (45) days following the commencement thereof,
or (v) shall be the subject of an order for relief in an involuntary case
under federal bankruptcy law;
(i) the Borrower or any of its Subsidiaries shall be unable to pay
its debts as they mature;
(j) there shall remain undischarged for more than thirty (30) days
any final judgment or execution action against the Borrower or any of its
Subsidiaries that, together with other outstanding claims and execution
actions against the Borrower and its Subsidiaries exceeds $500,000 in the
aggregate; or
(k) an Event of Default (as such term is defined in the SalesLink
Agreement) has occurred and is continuing under the SalesLink Agreement
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Revolving Credit Notes and the other Loan Documents to be, and they shall
thereupon forthwith become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower; provided that in the event of any Event of Default
--------
specified in (S)(S)8(h) or 8(i), all such amounts shall become immediately due
and payable automatically and without any requirement of notice from the Agent
or any Bank.
If any one or more of the Events of Default specified in (S)8(h) or (S)8(i)
shall occur, any unused portion of the credit hereunder shall forthwith
terminate and each of the Banks shall be relieved of all further obligations to
make Revolving Credit Loans to the Borrower. If any other Event of Default
shall have occurred
and be continuing, the Agent may and, upon the request of the Majority Banks,
shall, by notice to the Borrower, terminate the unused portion of the credit
hereunder, and upon such notice being given such unused portion of the credit
hereunder shall terminate immediately and each of the Banks shall be relieved of
all further obligations to make Revolving Credit Loans. No termination of the
credit hereunder shall relieve the Borrower or any of its Subsidiaries of any of
the Obligations.
In case any one or more of the Events of Default shall have occurred and be
continuing, and whether or not the Banks shall have accelerated the maturity of
the Revolving Credit Loans pursuant to (S)8, each Bank, if owed any amount with
respect to the Revolving Credit Loans, may, with the consent of the Majority
Banks but not otherwise, proceed to protect and enforce its rights by suit in
equity, action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations to such
Bank are evidenced, including as permitted by applicable law the obtaining of
the ex parte appointment of a receiver, and, if such amount shall have become
-- -----
due, by declaration or otherwise, proceed to enforce the payment thereof or any
other legal or equitable right of such Bank. No remedy herein conferred upon
any Bank or the Agent or the holder of any Revolving Credit Note is intended to
be exclusive of any other remedy and each and every remedy shall be cumulative
and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute or any other provision of
law.
9. SETOFF.
------
Regardless of the adequacy of any collateral for the Obligations, any
deposits or other sums credited by or due from any of the Banks to the Borrower
may be applied to or set off following an Event of Default against any
principal, interest and any other amounts due from the Borrower to the Banks at
any time without notice to the Borrower, or compliance with any other procedure
imposed by statute or otherwise, all of which are hereby expressly waived by the
Borrower. Each of the Banks agrees with each other Bank that (a) if an amount
to be set off is to be applied to Indebtedness of the Borrower to such Bank,
other than Indebtedness evidenced by the Revolving Credit Notes held by such
Bank, such amount shall be applied ratably to such other Indebtedness and to the
Indebtedness evidenced by all such Revolving Credit Notes held by such Bank, and
(b) if such Bank shall receive from the Borrower, whether by voluntary payment,
exercise of the right of setoff, counterclaim, cross action, enforcement of the
claim evidenced by the Revolving Credit Notes held by such Bank by proceedings
against the Borrower at law or in equity or by proof thereof in bankruptcy,
reorganization, liquidation, receivership or similar proceedings, or otherwise,
and shall retain and apply to the payment of the Revolving Credit Note or
Revolving Credit Notes held by such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with respect to the
Revolving Credit Notes held by all of the Banks, such Bank will make such
disposition and arrangements with the other Banks with respect to such excess,
either by way of distribution, pro tanto assignment of claims, subrogation or
--- -----
otherwise as shall result in each Bank receiving in respect of the Revolving
Credit Notes held by it, its proportionate payment as contemplated by this
Agreement; provided that if all or any part of such excess payment is thereafter
--------
recovered from such Bank, such disposition and arrangements shall be rescinded
and the amount restored to the extent of such recovery, but without interest.
10. THE AGENT.
---------
10.1. Authorization.
-------------
(a) The Agent is authorized to take such action on behalf of each of
the Banks and to exercise all such powers as are hereunder and under any of
the other Loan Documents and any related documents delegated to the Agent,
together with such powers as are reasonably incident thereto, provided that
--------
no duties or responsibilities not expressly assumed herein or therein shall
be implied to have been assumed by the Agent.
(b) The relationship between the Agent and each of the Banks is that
of an independent contractor. The use of the term "Agent" is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between the Agent and each of the
Banks. Nothing contained in this Agreement nor the other Loan Documents
shall be construed to create an agency, trust or other fiduciary
relationship between the Agent and any of the Banks.
(c) As an independent contractor empowered by the Banks to exercise
certain rights and perform certain duties and responsibilities hereunder
and under the other Loan Documents, the Agent is nevertheless a
"representative" of the Banks, as that term is defined in Article 1 of the
Uniform Commercial Code, for purposes of actions for the benefit of the
Banks and the Agent with respect to all collateral security and guaranties
contemplated by the Loan Documents. Such actions include the designation
of the Agent as "secured party", "mortgagee" or the like on all financing
statements and other documents and instruments, whether recorded or
otherwise, relating to the attachment, perfection, priority or enforcement
of any security interests, mortgages or deeds of trust in collateral
security intended to secure the payment or performance of any of the
Obligations, all for the benefit of the Banks and the Agent.
10.2. Employees and Agents. The Agent may exercise its powers and execute
--------------------
its duties by or through employees or agents and shall be entitled to take, and
to rely on, advice of counsel concerning all matters pertaining to its rights
and duties under this Agreement and the other Loan Documents. The Agent may
utilize the services of such Persons as the Agent in its sole discretion
may reasonably determine, and all reasonable fees and expenses of any such
Persons shall be paid by the Borrower.
10.3. No Liability. Neither the Agent nor any of its shareholders,
------------
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
10.4. No Representations. The Agent shall not be responsible for the
------------------
execution or validity or enforceability of this Agreement, the Revolving Credit
Notes, any of the other Loan Documents or any instrument at any time
constituting, or intended to constitute, collateral security for the Revolving
Credit Notes, or for the value of any such collateral security or for the
validity, enforceability or collectibility of any such amounts owing with
respect to the Revolving Credit Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
the Borrower or any of its Subsidiaries, or be bound to ascertain or inquire as
to the performance or observance of any of the terms, conditions, covenants or
agreements herein or in any instrument at any time constituting, or intended to
constitute, collateral security for the Revolving Credit Notes or to inspect any
of the properties, books or records of the Borrower or any of its Subsidiaries.
The Agent shall not be bound to ascertain whether any notice, consent, waiver or
request delivered to it by the Borrower or any holder of any of the Revolving
Credit Notes shall have been duly authorized or is true, accurate and complete.
The Agent has not made nor does it now make any representations or warranties,
express or implied, nor does it assume any liability to the Banks, with respect
to the credit worthiness or financial conditions of the Borrower or any of its
Subsidiaries. Each Bank acknowledges that it has, independently and without
reliance upon the Agent or any other Bank, and based upon such information and
documents as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement.
10.5. Payments.
--------
10.5.1. Payments to Agent. A payment by the Borrower to the Agent
-----------------
hereunder or any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees promptly to
distribute to each Bank such Bank's pro rata share of payments received by
--- ----
the Agent for the account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
10.5.2. Distribution by Agent. If in the opinion of the Agent the
---------------------
distribution of any amount received by it in such capacity hereunder, under
the Revolving Credit Notes or under any of the other Loan Documents might
involve it in liability, it may refrain from making distribution until its
right to make distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction shall adjudge
that any amount received and distributed by the Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either
repay to the Agent its proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and to such Persons as
shall be determined by such court.
10.5.3. Delinquent Banks. Notwithstanding anything to the contrary
----------------
contained in this Agreement or any of the other Loan Documents, any Bank
that fails (a) to make available to the Agent its pro rata share of any
--- ----
Revolving Credit Loan or (ii) to comply with the provisions of (S)9 with
respect to making dispositions and arrangements with the other Banks, where
such Bank's share of any payment received, whether by setoff or otherwise,
is in excess of its pro rata share of such payments due and payable to all
--- ----
of the Banks, in each case as, when and to the full extent required by the
provisions of this Agreement, shall be deemed delinquent (a "Delinquent
Bank") and shall be deemed a Delinquent Bank until such time as such
delinquency is satisfied. A Delinquent Bank shall be deemed to have
assigned any and all payments due to it from the Borrower, whether on
account of outstanding Revolving Credit Loans, interest, fees or otherwise,
to the remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Revolving Credit Loans.
--- ----
The Delinquent Bank hereby authorizes the Agent to distribute such payments
to the nondelinquent Banks in proportion to their respective pro rata
--- ----
shares of all outstanding Revolving Credit Loans. A Delinquent Bank shall
be deemed to have satisfied in full a delinquency when and if, as a result
of application of the assigned payments to all outstanding Revolving Credit
Loans of the nondelinquent Banks, the Banks' respective pro rata shares of
--- ----
all outstanding Revolving Credit Loans have returned to those in effect
immediately prior to such delinquency and without giving effect to the
nonpayment causing such delinquency.
10.6. Holders of Revolving Credit Notes. The Agent may deem and treat the
---------------------------------
payee of any Revolving Credit Note as the absolute owner or purchaser thereof
for all purposes hereof until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder, assignee or transferee.
10.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
---------
harmless the Agent from and against any and all claims, actions and suits
(whether groundless or otherwise), losses, damages, costs, expenses (including
any expenses for which the Agent has not been reimbursed by the Borrower as
required by (S)12), and liabilities of every nature and character arising out of
or related to this Agreement, the Revolving Credit Notes, or any of the other
Loan Documents or the transactions contemplated or evidenced hereby or thereby,
or the Agent's actions taken hereunder or thereunder, except to the extent that
any of the same shall be directly caused by the Agent's willful misconduct or
gross negligence.
10.8. Agent as Bank. In its individual capacity, BankBoston shall have
-------------
the same obligations and the same rights, powers and privileges in respect to
its Commitment and the Revolving Credit Loans made by it, and as the holder of
any of the Revolving Credit Notes, as it would have were it not also the Agent.
10.9. Resignation. The Agent may resign at any time by giving sixty
-----------
(60) days prior written notice thereof to the Banks and the Borrower. Upon any
such resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the Borrower.
If no successor Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which shall be a financial institution
having a rating of not less than A or its equivalent by Standard & Poor's
Corporation. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this
Agreement and the other Loan Documents 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 Agent.
10.10. Notification of Defaults and Events of Default. Each Bank hereby
----------------------------------------------
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this (S)10.10 it shall promptly notify the other
Banks of the existence of such Default or Event of Default.
11. ASSIGNMENT AND PARTICIPATION.
----------------------------
11.1. Conditions to Assignment by Banks. Except as provided herein, each
---------------------------------
Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage and Commitment and the same portion of
the Revolving Credit Loans at the time owing to it, the Revolving Credit Notes
held by it); provided that (a) each of the Agent and, unless a Default or Event
--------
of Default shall have occurred and be continuing, the Borrower shall have given
its prior written consent to such assignment, which consent, in the case of the
Borrower, will not be unreasonably withheld, (b) each such
assignment shall be of a constant, and not a varying, percentage of all the
assigning Bank's rights and obligations under this Agreement, (c) each
assignment shall be in an amount that is a whole multiple of $1,000,000 and (d)
the parties to such assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter defined), an Assignment and
Acceptance, in form and substance satisfactory to the Agent (an "Assignment and
Acceptance"), together with any Revolving Credit Notes subject to such
assignment. Upon such execution, delivery, acceptance and recording, from and
after the effective date specified in each Assignment and Acceptance, which
effective date shall be at least five (5) Business Days after the execution
thereof, (i) the assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and obligations of a
Bank hereunder, and (ii) the assigning Bank shall, to the extent provided in
such assignment and upon payment to the Agent of the registration fee referred
to in (S)11.3, be released from its obligations under this Agreement.
11.2. Certain Representations and Warranties; Limitations; Covenants. By
--------------------------------------------------------------
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Bank makes no representation or
warranty, express or implied, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto,
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and their Subsidiaries or any other Person primarily or
secondarily liable in respect of any of the Obligations, or the performance
or observance by the Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations of any
of their obligations under this Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto;
(c) such assignee confirms that it has received a copy of this Credit
Agreement, together with copies of the most recent financial statements
referred to in (S)7.1 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably
incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Agreement are
required to be performed by it as a Bank; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
11.3. Register. The Agent shall maintain a copy of each Assignment and
--------
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Revolving Credit Loans owing to the
Banks from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Agent and the Banks may treat
each Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower and the Banks at any reasonable time and from time to
time upon reasonable prior notice. Upon each such recordation, the assigning
Bank agrees to pay to the Agent a registration fee in the sum of $2,500.
11.4. New Revolving Credit Notes. Upon its receipt of an Assignment and
--------------------------
Acceptance executed by the parties to such assignment, together with each
Revolving Credit Note subject to such assignment, the Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Borrower and the Banks (other than the assigning Bank). Within
five (5) Business Days after receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Agent, in exchange for each
surrendered Revolving Credit Note, a new Revolving Credit Note to the order of
such Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Bank
has retained some portion of its obligations hereunder, a new Revolving Credit
Note to the order of the assigning Bank in an amount equal to the amount
retained by it hereunder. Such new Revolving Credit Notes shall provide that
they are replacements for the surrendered Revolving Credit Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Revolving Credit Notes, shall be dated the effective date of such in
Assignment and Acceptance and shall otherwise be substantially the form of the
assigned Revolving Credit Notes. Within five (5) days of issuance of any new
Revolving Credit Notes pursuant to this (S)11.4, the Borrower shall deliver an
opinion of counsel, addressed to the Banks and the Agent, relating to the due
authorization, execution and delivery of such new Revolving Credit Notes and the
legality, validity and binding effect thereof, in form and substance
satisfactory to the Banks. The surrendered Revolving Credit Notes shall be
canceled and returned to the Borrower.
11.5. Participations. Each Bank may sell participations to one or more
--------------
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents; provided
--------
that (a) any such sale or participation shall not affect the rights and duties
of the selling Bank hereunder to the Borrower, and (b) the only rights granted
to the participant pursuant to such participation arrangements with respect to
waivers, amendments or modifications of the Loan Documents shall be the rights
to approve waivers, amendments or modifications that would reduce the principal
of or the interest rate on any Revolving Credit Loans, extend the term or
increase the amount of the Commitment of such Bank as it relates to such
participant, reduce the amount of any commitment fees to which such participant
is entitled or extend any regularly scheduled payment date for principal or
interest.
11.6. Disclosure. The Borrower agrees that in addition to disclosures made
----------
in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
--------
participants shall agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process and (c)
not to make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation.
11.7. Assignee or Participant Affiliated with the Borrower. If any
----------------------------------------------------
assignee Bank is an Affiliate of the Borrower or any of its Subsidiaries, then
any such assignee Bank shall have no right to vote as a Bank hereunder or under
any of the other Loan Documents for purposes of granting consents or waivers or
for purposes of agreeing to amendments or other modifications to any of the Loan
Documents or for purposes of making requests to the Agent pursuant to (S)11.1 or
(S)11.2, and the determination of the Majority Banks shall for all purposes of
this Agreement and the other Loan Documents be made without regard to such
assignee Bank's interest in any of the Revolving Credit Loans. If any Bank sells
a participating interest in any of the Revolving Credit Loans to a participant,
and such participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Agent of the sale of such
participation. A transferor Bank shall have no right to vote as a Bank hereunder
or under any of the other Loan Documents for purposes of granting consents or
waivers or for purposes of agreeing to amendments or modifications to any of the
Loan Documents or for purposes of making requests to the Agent pursuant to
(S)11.1 or (S)11.2 to the extent that such participation is beneficially owned
by the Borrower or any Affiliate of the Borrower, and the determination of the
Majority Banks shall for all purposes of this Agreement and the other Loan
Documents be made without regard to the interest of such transferor Bank in the
Revolving Credit Loans to the extent of such participation.
11.8. Miscellaneous Assignment Provisions. Any assigning Bank shall retain
-----------------------------------
its rights to be indemnified pursuant to (S)12 with respect to any claims or
actions arising prior to the date of such assignment. If any assignee Bank is
not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account, deliver to
the Borrower and the Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes. Anything contained in
this (S)11 to the contrary notwithstanding, any Bank may at any time pledge all
or any portion of its interest and rights under this Agreement (including all or
any portion of its Revolving Credit Notes) to any of the twelve Federal Reserve
Banks organized under (S)4 of the Federal Reserve Act, 12 U.S.C. (S)341. No such
pledge or the enforcement thereof shall release the pledgor Bank from its
obligations hereunder or under any of the other Loan Documents.
11.9. Assignment by Borrower. The Borrower shall not assign or transfer
----------------------
any of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
12. MISCELLANEOUS.
-------------
The Borrower agrees to indemnify and hold harmless the Agent and the Banks
and their officers, employees, affiliates, agents, and controlling persons from
and against all claims, damages, liabilities and losses of every kind arising
out of the Loan Documents, including without limitation, against those in
respect of the application of Environmental Laws to the Borrower and its
Subsidiaries absent the gross negligence or willful misconduct of the Agent and
the Banks. The Borrower shall pay to the Agent and the Banks promptly on demand
all costs and expenses (including any taxes and reasonable legal and other
professional fees [and fees of its commercial finance examiner which commercial
finance examiner fees shall not exceed $5,000 in any twelve (12) month period
-----
prior to the occurrence of an Event of Default]) incurred by the Agent and the
Banks in connection with the preparation, negotiation, execution, amendment,
administration or enforcement of any of the Loan Documents. Any communication
to be made hereunder shall (a) be made in writing, but unless otherwise stated,
may be made by telex, facsimile transmission, overnight delivery or letter, and
(b) be made or delivered to the address of the party receiving notice which is
identified with its signature below (unless such party
has by five (5) days written notice specified another address), and shall be
deemed made or delivered, when dispatched, left at that address, one (1) day
after given to an overnight delivery service, or five (5) days after being
mailed, postage prepaid, to such address. This Agreement shall be binding upon
and inure to the benefit of each party hereto and its successors and assigns,
but the Borrower may not assign its rights or obligations hereunder. This
Agreement may not be amended or waived except by a written instrument signed by
the Borrower, the Agent and the Majority Banks, and any such amendment or waiver
shall be effective only for the specific purpose given; provided, however,
-------- -------
notwithstanding the foregoing, (a) (i) the rate of interest on the Revolving
Credit Notes, (ii) the term of the Revolving Credit Notes, (iii) the Commitment
amounts and the amount of the fees hereunder, (iv) the definition of Majority
Banks, (v) the advance rates set forth in the definition of Borrowing Base, and
(vi) this sentence of (S)12 shall not be changed without the written consent of
all the Banks, and (b) (i) the amount of the agent's fee and (ii) (S)10 may not
be amended without the consent of the Agent. No failure or delay by the Bank to
exercise any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right, power or privilege preclude any other
right, power or privilege. The provisions of this Agreement are severable and
if any one provision hereof shall be held invalid or unenforceable in whole or
in part in any jurisdiction, such invalidity or unenforceability shall affect
only such provision in such jurisdiction. This Agreement, together with all
Schedules hereto, expresses the entire understanding of the parties with respect
to the transactions contemplated hereby. This Agreement and any amendment
hereby may be executed in several counterparts, each of which shall be an
original, and all of which shall constitute one agreement. In proving this
Agreement, it shall not be necessary to produce more than one such counterpart
executed by the party to be charged. THIS AGREEMENT AND THE REVOLVING CREDIT
NOTES ARE CONTRACTS UNDER THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS AND
SHALL BE CONSTRUED IN ACCORDANCE THEREWITH AND GOVERNED THEREBY. THE BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF ANY OF THE LOAN DOCUMENTS MAY BE
BROUGHT IN THE COURTS OF THE COMMONWEALTH OF MASSACHUSETTS OR ANY FEDERAL COURT
SITTING THEREIN. The Borrower, as an inducement to the Bank to enter into this
Agreement, hereby waives its right to a jury trial with respect to any action
arising in connection with any Loan Document.
IN WITNESS WHEREOF, the undersigned have duly executed this Revolving
Credit Agreement as a sealed instrument as of the date first above written.
CMG INFORMATION SERVICES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
Title: Treasurer
Address:
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▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel: (508)
Fax: (508)
BANKBOSTON, N.A. (f/k/a/ The First
National Bank of Boston),
individually and as Agent
By: ▇▇▇▇▇▇ ▇. Head, Jr.
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Name: ▇▇▇▇▇▇ ▇. Head, Jr.
Title: Vice President
Address:
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▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
High Technology Division
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Tel: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇