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EXHIBIT 10.1
FIRST AMENDMENT, WAIVER AND CONSENT AGREEMENT
THIS FIRST AMENDMENT, WAIVER AND CONSENT AGREEMENT (this "Agreement") is
made and entered into as of this 7 day of April, 1999, by and among MINDSPRING
ENTERPRISES, INC., a Delaware corporation, as Borrower, the Lenders identified
on the signature pages hereto, FIRST UNION CAPITAL MARKETS CORP., as Arranger,
and FIRST UNION NATIONAL BANK, as Administrative Agent for the Lenders.
Statement of Purpose
The Lenders agreed to extend certain credit facilities to the Borrower
pursuant to the Credit Agreement dated as of February 17, 1999 (as amended,
restated, supplemented or otherwise modified, the "Credit Agreement") by and
among MINDSPRING ENTERPRISES, INC., a Delaware corporation, as Borrower, the
Lenders who are or may become a party thereto, FIRST UNION CAPITAL MARKETS
CORP., as Arranger, and FIRST UNION NATIONAL BANK, as Administrative Agent for
the Lenders. All capitalized terms used and not defined in this Agreement shall
have the meanings assigned thereto in the Credit Agreement.
The Borrower plans to offer and subsequently issue up to $175,000,000
(which such amount may be increased up to $202,000,000 upon the exercise of the
underwriters' over-allotment option) in convertible notes pursuant to a final
prospectus supplement and the related prospectus, each dated April 7, 1999 (the
"Notes Offering"). Concurrently with the Notes Offering and pursuant to a
separate final prospectus supplement and the related prospectus, each dated
April 7, 1999, the Borrower also plans to offer up to 2,400,000 shares (which
such amount may be increased up to 2,760,000 shares upon the exercise of the
underwriters' over-allotment option) of common stock (the "Stock Offering"). The
Borrower has requested certain amendments, waivers, and consents to the Credit
Agreement as set forth more fully below to permit the Notes Offering.
Additionally, the Borrower has requested certain amendments to the negative and
financial covenants as set forth more fully below.
Subject to the terms and conditions hereof, the Administrative Agent,
the Arranger and the Lenders are willing to agree to such amendments, waivers,
and consents.
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the parties hereto agree as follows:
1. Consent to the Notes Offering. The Administrative Agent, the Arranger
and the Lenders hereby consent to the terms and conditions of the Notes Offering
in effect as of the date hereof and agree that the convertible subordinated
notes issued pursuant to the Notes Offering shall constitute "Subordinated Debt"
under the Credit Agreement permitted pursuant to Section 10.1(c) thereof.
2. Waiver of the Mandatory Commitment Reduction. Pursuant to Section
2.5(b)(iii) of the Credit Agreement, the Borrower is required to permanently
reduce the Aggregate Commitment under the Credit Facility by an amount equal to
100% of the Net Cash Proceeds of any debt offering including the Notes Offering,
with a corresponding repayment of any outstandings under
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the Credit Agreement which exceed such reduced amount. The Administrative
Agent, the Arranger and the Lenders hereby waive such requirement for a
permanent reduction of the Aggregate Commitment with respect to this Notes
Offering; provided that, all outstandings under the Credit Agreement are
prepaid with a portion of the proceeds of either the Notes Offering or the
Stock Offering within three (3) days after receipt thereof.
3. Amendments to the Credit Facility.
A. Amendments to Article I.
(i) Section 1.1 is hereby amended by inserting the
following definition following the definition of Capital
Lease:
"Cash Equivalents" means those investments permitted
pursuant to Section 10.4(b) of the Credit Agreement.
(ii) Section 1.1 is hereby amended by inserting the
following definition following the definition of
Consolidated:
"Convertible Notes" means the $156,500,000 (which amount
was increased to $179,975,000 upon the exercise of the
underwriters' over-allotment option) of 5.00% Convertible
Subordinated Notes due 2006 of the Borrower issued
pursuant to the final prospectus supplement and the
related prospectus, each dated April 7, 1999.
(iii) Section 1.1 is hereby amended by inserting the
following definition following the definition of Loans:
"Make Whole Payment" means an amount equal to $200 per
$1,000 of each Convertible Note redeemed by the Borrower
in connection with a Provisional Redemption, less the
amount of any interest actually paid on such Convertible
Note prior to the notice date of such Provisional
Redemption.
(iv) Section 1.1 is hereby amended by inserting the
following definition following the definition of Prime
Rate:
"Provisional Redemption" means the right of the Borrower
to redeem all or part of the Convertible Notes at any time
prior to April 15, 2002, at a redemption price equal to
$1,000 per $1,000 each Convertible Note to be redeemed
plus the Make-Whole Payment, if any, plus accrued and
unpaid interest, if any, to the date of such redemption
(the "Provisional Redemption Date") if the closing price
of the Borrower's common stock shall have exceeded 150% of
the Conversion Price of the Convertible Notes (as defined
therein) then in effect for at least 20 trading days in
any consecutive 30 trading day period ending on the
trading day prior to the date of mailing of
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the notice of provisional redemption (the "Notice
Date," which such date shall be no more than 60 nor less
than 30 days prior to the Provisional Redemption Date).
B. Amendment to allow the Provisional Redemption. Section 2.7
of the Credit Agreement is hereby amended by deleting the
word "and" immediately preceding clause (c) thereof and
inserting the following clause (d) at the end of such
Section 2.7:
"and (d) to fund any Provisional Redemption permitted
pursuant to Section 10.11."
C. Amendment to Article 9. Section 9.1 is hereby amended by
inserting the following phrase after the word "Total Debt"
in clause (a) of such Section 9.1:
", less the aggregate amount of cash and Cash Equivalents
of the Borrower in excess of Twenty Million Dollars
($20,000,000) available for the immediate repayment of
Debt of the Borrower,"
D. Amendments to Article X.
(i) Section 10.4(c) is hereby amended by deleting
clause (iv) of such Section 10.4(c) and
substituting the following new clause (iv) in lieu
thereof:
"(iv) the aggregate cash or any other consideration
paid for any such proposed acquisition or series of
related acquisitions consummated during the term
hereof shall not exceed Fifty Million Dollars
($50,000,000) without the prior written consent of
the Required Lenders."
(ii) Section 10.11 is hereby amended by inserting the
following proviso at the end of such Section 10.11:
"; provided that, so long as no Default or Event of
Default has occurred and is continuing or would
result therefrom, the Borrower shall be permitted
to make Provisional Redemptions in accordance with
the terms of the Convertible Notes."
4. Conditions. The effectiveness of the Agreement set forth herein shall
be conditioned upon delivery to the Administrative Agent of this Agreement
executed by the Administrative Agent, the Borrower and all of the Lenders.
5. Effect of Agreement. Except as expressly waived, amended, or
otherwise modified hereby, the Credit Agreement and Loan Documents shall be and
remain in full force and effect.
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The consents, waivers and amendments granted in this Agreement are specific and
limited and shall not constitute any further amendment of the Credit Agreement
or a modification, acceptance or waiver of any other provision of or default
under the Credit Agreement or any other document or instrument entered into in
connection therewith or a future modification, acceptance or waiver of the
provisions set forth therein.
6. Representations and Warranties/No Default. By its execution hereof,
the Borrower hereby certifies that each of the representations and warranties
set forth in the Credit Agreement and the other Loan Documents is true and
correct as of the date hereof as if fully set forth herein (other than
representations and warranties which speak as of a specific date pursuant to the
Credit Agreement, which representations and warranties shall have been true and
correct as of such specific dates) and that as of the date hereof no Default or
Event of Default has occurred and is continuing.
7. Expenses. The Borrower shall pay all reasonable out-of-pocket
expenses of the Administrative Agent in connection with the preparation,
execution and delivery of this Agreement and any termination and release
documents referenced herein or required hereby, including without limitation,
the reasonable fees and disbursements of counsel for the Administrative Agent.
8. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina, without reference to
the conflicts or choice of law provisions thereof.
9. Counterparts. This Agreement may be executed in separate
counterparts, each of which when executed and delivered is an original but all
of which taken together constitute one and the same instrument.
10. Stock Offering. The Administrative Agent, the Arranger and the
Lenders hereby acknowledge that their consent to the terms and conditions of the
Stock Offering is not required under the Credit Agreement and that the
provisions of Section 2.5(b), 2.5(c) and 10.6 of the Credit Agreement are
inapplicable thereto.
[Signature Pages Follow]
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ACKNOWLEDGED AND AGREED, this 7th day of April, 1999 .
[CORPORATE SEAL] MINDSPRING ENTERPRISES, INC., as Borrower
By: /s/ Xxxxxx X. XxXxxxxx
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Name: Xxxxxx X. XxXxxxxx, Xx.
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Title: Exec. V.P. - General Counsel
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[Signature Pages Continue]
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FIRST UNION NATIONAL BANK,
as Administrative Agent and Lender
By: /s/ C. Xxxx Xxxxxxx
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Name: C. Xxxx Xxxxxxx
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Title: Vice President
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FIRST UNION CAPITAL MARKETS CORP.,
as Arranger
By: /s/ C. Xxxx Xxxxxxx
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Name: C. Xxxx Xxxxxxx
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Title: Vice President
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XXXXXXX XXXXX CREDIT PARTNERS L.P., as Lender
By: /s/ signature illegible
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Name:
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Title:
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ING (US) CAPITAL LLC, as Lender
By: /s/ Xxxx Xxxxxxxxxxx
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Name: Xxxx Xxxxxxxxxxx
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Title: Managing Director
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NATIONSBANK, N.A., as Lender
By: /s/ Xxxxxxx X. Bergborn
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Name: Xxxxxxx X. Bergborn
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Title: Senior Vice President
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