EXHIBIT 10.04
CREDIT AGREEMENT
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Dated as of May 12, 1999
between
XXX.xxx, Inc.
and
Fleet National Bank
TABLE OF CONTENTS
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1. DEFINITIONS:............................................................ 3
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2. EQUIPMENT LOAN FACILITY................................................. 8
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2.1. Making of Loans................................................... 8
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2.2. Repayment of Loans................................................ 9
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3. INTEREST, OVERDUE PAYMENTS............................................. 10
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3.1. Interest on Loans................................................ 10
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3.2. Interest after Default........................................... 10
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3.3. Overdue Payments................................................. 10
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4. FEES AND PAYMENTS...................................................... 11
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5. REPRESENTATIONS AND WARRANTIES......................................... 11
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6. CONDITIONS PRECEDENT................................................... 13
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7. COVENANTS.............................................................. 13
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7.1. Affirmative Covenants............................................ 13
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7.2. Negative Covenants............................................... 15
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7.3. Financial Covenants.............................................. 16
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8. EVENTS OF DEFAULT: ACCELERATION........................................ 17
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9. SETOFF................................................................. 18
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10. MISCELLANEOUS.......................................................... 19
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11. CONFIDENTIALITY........................................................ 19
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12. PREJUDGMENT REMEDY WAIVER.............................................. 20
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CREDIT AGREEMENT
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This CREDIT AGREEMENT (this "Agreement") is made as of May 12, 1999, by and
between XXX.xxx, Inc. (the "Borrower"), a Delaware corporation, having its
principal place of business at 000 Xxxx Xxxxx Xxxxx, 0xx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxxx 00000, and Fleet National Bank (the "Bank"), a national banking
association, with its head office at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000.
1. DEFINITIONS:
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Certain capitalized terms are defined below:
Accounts: All rights of the Borrower to any payment of money for goods
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sold, leased or otherwise marketed in the ordinary course of business and all
rights of the Borrower to payment for services rendered 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.
Agreement: See preamble, which term shall include this Agreement and the
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Schedules hereto, all as amended and in effect from time to time.
Bank: See preamble.
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Base Accounts: Those Accounts (net of any finance charges, late charges,
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credits, commissions, contras or other offsets or counterclaims) (i) which the
Borrower reasonably determines to be collectible, (ii) the account debtors in
respect of which are deemed creditworthy by the Bank, in its sole but reasonable
judgment, are solvent, are not affiliated with the Borrower, and purchased the
goods at arms' length, (iii) which are not outstanding for more than ninety (90)
days past the earlier to occur of (A) the date of invoice and (B) the date of
shipment (as to goods) or of provision (as to services), (iv) that are not due
from an account debtor located in Minnesota unless the Borrower (A) has received
a certificate of authority to do business and is in good standing in such state
or (B) has filed a notice of business activities report with the appropriate
office or agency of such state for the current year, (v) over which there is no
Lien, (vi) which are in payment of fully performed and undisputed obligations,
and (vii) which are payable in U.S. currency from an office within the United
States, unless the payment of any such Account is backed by a letter of credit
in form and substance satisfactory to the Bank and is issued by a financial
institution acceptable to the Bank having an office in the United States.
Base Rate: The higher of (i) the annual rate of interest announced from
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time to time by the Bank at its head office as the Bank's "prime rate" and (ii)
one-half of one percent (1/2%) above the Federal Funds Effective Rate.
Borrower: See preamble.
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Borrowing Base: An amount determined by the Bank to be equal to the lesser
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(i) $5,000,000 and (ii) eighty percent (80%) of the lower of the initial book
value or cost (excluding freight, taxes, set-up and other installation costs) of
all Equipment Collateral as evidenced by invoices or purchase orders (dated no
more than thirty (30) days from the date such invoice or
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purchase order is provided to the Bank with respect to Equipment Collateral
purchased on or after the Closing Date) and evidence of payment (solely with
respect to any Equipment Collateral purchased prior to the Closing Date to be
refinanced with the proceeds of Loans on the Closing Date) from the sellers
thereof.
Borrowing Base Report: A report, in form and with supporting details
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reasonably satisfactory to the Bank, setting forth the Borrower's computation of
the Borrowing Base.
Business Day: Any day on which banks in Boston, Massachusetts, are open
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for business generally.
Capital Lease Obligation: Indebtedness represented by obligations of the
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lessee under a lease which has been or should be capitalized on the books of the
lessee 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: May 12, 1999.
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Collateral: All of the property, rights and assets of the Borrower that
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are or are intended to be subject to the security interest created by the
Security Documents.
Commitment: The obligation of the Bank to make Loans to the Borrower up to
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an aggregate outstanding principal amount not to exceed $5,000,000, as such
amount may be reduced from time to time or terminated hereunder.
Communications Act: The Communications Act of 1934, as amended (including,
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without limitation the Telecommunications Act of 1996, as amended), and the
rules and regulations issued thereunder, as from time to time in effect.
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 Current Assets: The sum of (i) cash on hand of the Borrower
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and its Subsidiaries, (ii) Investments permitted under (S)(S)7.2(c)(i), (ii) and
(iv) hereof, and (iii) Base Accounts, that in accordance with GAAP are properly
classified as current assets.
Consolidated Current Liabilities: The result of (i) all liabilities of the
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Borrower and its Subsidiaries payable on demand or maturing within one (1) year
from the date as of which current liabilities are to be determined, including,
without limitation, any Loans, and such other liabilities that in accordance
with GAAP are properly classified as current liabilities, plus (ii) the amount
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of all Loans outstanding (to the extent not already included in clause (i)
above), minus (iii) Deferred Revenue.
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Consolidated Total Liabilities: All liabilities of the Borrower and its
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Subsidiaries determined in accordance with GAAP and classified as such on the
consolidated balance sheet of the Borrower, and all other Indebtedness of the
Borrower and its Subsidiaries, whether or not so classified.
Conversion Date: The first anniversary of the Closing Date.
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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.
Deferred Revenue: Product or service revenue of the Borrower beyond the
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current period as recorded in accordance with GAAP.
DPUC: The Connecticut Department of Public Utility Control and similar
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governmental authorities of the various states of the United States of America
and any governmental authority succeeding to any of their respective functions.
DPUC Licenses: Any license, authorization, certificate of compliance,
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franchise, approval or permit now or hereafter granted or issued by any DPUC and
now or hereafter held by Borrower or any of its Subsidiaries and permitting the
Borrower or its Subsidiaries to conduct business in the applicable jurisdiction
as a competitive local exchange carrier.
Drawdown Date: In respect of any Loan, the date on which such Loan is made
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to the Borrower.
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 ease
as amended, and all rules, regulations, judgments, decrees, orders and licenses
arising under all such laws.
Equipment Collateral: The telecommunications equipment, office equipment,
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furniture, motor vehicles and fixtures purchased or refinanced by the Borrower
with the proceeds of the Loans on or after the Closing Date and which
telecommunications equipment, office equipment, furniture, motor vehicles and
fixtures (i) are owned, possessed and held by the Borrower within the United
States and not subject to any claim of ownership by any third party, (ii) other
than with respect to motor vehicles, are held on premises leased by the Borrower
located at 000 Xxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxxx, and (iii) as to which a
valid and perfected first-priority security interest in favor of the Bank has
been created and as to which there is no other Lien.
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.
Event of Default: Any of the events listed in (S)8 hereof.
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FCC: The Federal Communications Commission or any governmental authority
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succeeding to any of its functions.
FCC Licenses: Any license, authorization, certificate of compliance,
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franchise, approval or permit granted or issued by the FCC and held by the
Borrower, each of which is listed on Schedule 7.3 attached hereto.
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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 Bank from three
funds brokers of recognized standing selected by the Bank.
Financials: In respect of any period, the balance sheet of any person or
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entity as at the end of such period, and the related statement of income and
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, (i)
generally, as in effect from time to time, and (ii) for purposes of determining
compliance by the Borrower and its Subsidiaries with the financial covenants set
forth herein, as in effect for the fiscal year therein reported in the most
recent Financials submitted to the Bank prior to execution of this Agreement.
Indebtedness: In respect of any Person, all (a) indebtedness for borrowed
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money; (b) indebtedness for the deferred purchase price of property or services
(except trade payables and accrued expenses incurred in the ordinary course of
business); (c) every reimbursement obligation with respect to any outstanding
letters of credit issued for the account of such Person or any of its
Subsidiaries; (d) every reimbursement obligation with respect to acceptance
facilities; (e) guaranties, endorsements (other than for collection in the
ordinary course of business) and other contingent obligations to purchase or to
provide funds for payment of the obligations of another Person, to supply funds
to invest in any Person, to cause such Person, to maintain a minimum working
capital or net worth or otherwise assure the creditors of such Person against
loss; (f) Capital Lease Obligations; (g) every obligation of such Person or any
of its Subsidiaries evidenced by bonds, debentures or similar instruments; and
(h) any other obligation for borrowed money or other financial accommodation
which in accordance with GAAP would be shown as a liability on the consolidated
balance sheet of such Person.
Investments: All expenditures made and all liabilities incurred
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(contingently or otherwise) for the acquisition of equity interests or
indebtedness of, or for loans, advances, capital contributions or transfers of
property to, or in respect of any guaranties, or obligations of, any entity. In
determining the aggregate amount of Investments outstanding at any particular
time: (i) the amount of any Investment represented by a guaranty shall be taken
at not less than the principal amount of the obligations guaranteed and still
outstanding; (ii) there shall be included as an Investment all interest accrued
with respect to indebtedness constituting an
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Investment unless and until such interest is paid; (iii) there shall be deducted
in respect of each such Investment any amount received as a return of capital
(but only by repurchase, redemption, retirement, repayment, liquidating dividend
or liquidating distribution); (iv) there shall not be deducted in respect of any
Investment any amounts received as earnings on such Investment, whether as
dividends, interest or otherwise, except that accrued interest included as
provided in the foregoing clause (ii) may be deducted when paid; and (v) there
shall not be deducted from the aggregate amount of Investments any decrease in
the value thereof.
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, the Note and the Security Documents and
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any document, agreement and/or instrument executed and/or delivered in
connection therewith, in each case as from time to time amended or supplemented.
Loans. Any loan made by the Bank to the Borrower pursuant to(S)2.1.
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Materially Adverse Effect: Any materially adverse effect on the financial
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condition or business operations of the Borrower or any of its Subsidiaries or
material impairment of the ability of the Borrower or any of its Subsidiaries to
perform their obligations hereunder or under any of the other Loan Documents.
Maturity Date: May 1, 2003.
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Net Cash Proceeds: The cash proceeds received from a sale of equity
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interests of the Borrower, net of all costs of sale, including legal costs,
underwriting or brokerage costs, Indebtedness (other than Loans) paid off with
such cash proceeds and taxes paid or payable as a result thereof by the
Borrower.
Note: See (S)2.1.
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Obligations: All indebtedness, obligations and liabilities of the Borrower
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and its Subsidiaries to the Bank, 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 Loans or the Note or other instruments at any time evidencing any thereof.
Offering: The issuance after the Closing Date of any equity securities of
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the Borrower or the receipt by the Borrower of any cash proceeds from any equity
contributions, the Net Cash Proceeds of which is not less than $29,500,000.
Person: An individual, partnership, corporation, limited liability
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company, business trust, joint stock company, trust, unincorporated association,
joint venture, governmental authority or other entity of whatever nature.
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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.
Security Documents: The Security Agreement between the Borrower and the
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Bank, together with any UCC-1 financing statements executed and/or delivered in
connection therewith, each as the same may be amended, reaffirmed or modified
from time to time and in form and substance satisfactory to the Bank.
Shareholders' Equity: An amount determined in accordance with GAAP that is
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equal to the sum of (a) the capital stock (including common stock and preferred
stock, but excluding treasury stock) and additional paid in capital (to the
extent paid in cash) of the Borrower and its Subsidiaries, plus (b) the earned
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surplus and capital surplus of the Borrower and its Subsidiaries, plus (c)
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Subordinated Debt, minus (d) the book value of all assets of the Borrower and
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its Subsidiaries which, under GAAP, would be treated as intangible assets.
Subordinated Debt: Unsecured Indebtedness of the Borrower or any of its
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Subsidiaries that is expressly subordinated and made junior to the payment and
performance in full of the Obligations, and evidenced as such by a subordination
agreement containing subordination provisions in form and substance approved by
the Bank in writing, such approval not to be unreasonably withheld.
Subsidiary: Any corporation, association, trust, limited liability
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company, or other business entity of which the designated parent shall at any
time own directly or indirectly through a Subsidiary or Subsidiaries at least a
majority (by number of votes) of the outstanding Voting Stock.
System: The competitive local exchange carrier system constructed and
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operated by the Borrower and its Subsidiaries.
Voting Stock: Stock or similar interests, of any class or classes (however
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designated), the holders of which are at the time entitled, as such holders, to
vote for the election of a majority of the directors (or persons performing
similar functions) of the corporation, limited liability company, association,
trust or other business entity involved, whether or not the right so to vote
exists by reason of the happening of a contingency.
2. EQUIPMENT LOAN FACILITY.
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2.1. Making of Loans. Upon the terms and subject to the conditions of
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this Agreement, the Bank agrees to lend to the Borrower such sums that the
Borrower may request, from the date hereof until but not including the
Conversion Date; provided that the sum of the outstanding principal amount of
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all Loans (after giving effect to all amounts requested) shall not exceed the
lesser of (a) the Commitment and (b) the Borrowing Base. In addition, in no
event shall the Bank be obligated to make any Loan in excess of eighty percent
(80%) of the purchase price (excluding freight, taxes, setup and other
installation costs) of the piece or pieces of Equipment Collateral to be
purchased by the Borrower with the proceeds of such Loan. Loans shall be in the
minimum aggregate amount of $25,000 or an integral multiple thereof. The
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Borrower shall notify the Bank in writing or telephonically, not later than 2:00
p.m. Boston, Massachusetts time at least one Business Day prior to the date of
the Loan being requested, of the Drawdown Date (which must be a Business Day),
the principal amount of such Loan and the type and description of Equipment
Collateral being purchased (including, without limitation, serial or vehicle
identification numbers where applicable) and the purchase price thereof. In the
case of any telephonic notification, the Borrower shall provide to the Bank
written confirmation of all of such information within three Business Days after
such telephonic notification. Subject to the foregoing, so long as the
Commitment is then in effect and the conditions set forth in (S)6 hereof have
been met, the Bank shall advance the amount requested to the Borrower's bank
account at the Bank in immediately available funds not later than the close of
business on such Drawdown Date. The obligation of the Borrower to repay to the
Bank the principal of the Loans and interest accrued thereon shall be evidenced
by a promissory note in the aggregate principal amount of $5,000,000 executed
and delivered by the Borrower and payable to the order of the Bank, in form and
substance satisfactory to the Bank (the "Note").
2.2. Repayment of Loans. (a) If at any time the outstanding principal
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amount of the Loans exceeds the lesser of (i) the Commitment and (ii) the
Borrowing Base, the Borrower hereby agrees to pay immediately the amount of such
excess to the Bank for application to the Loans. The Borrower may elect to
terminate, or from time to time, reduce the Commitment by a minimum principal
amount of $25,000 or an integral multiple thereof, upon one (1) Business Day's
prior written notice to the Bank of the proposed date of such reduction or
termination. The Borrower shall not be entitled to reinstate the Commitment
following such reduction or termination.
(b) As long as no Default or Event of Default shall have occurred and
be continuing, the outstanding amount of all Loans on the Conversion Date
shall be converted into a term loan. The Borrower hereby absolutely and
unconditionally promises to pay to the Bank the principal amount of the
Loans outstanding on the Conversion Date in thirty-five (35) consecutive
equal installments, each in the amount of two and seventy-eight one
hundredths of one percent (2.78%) of the aggregate principal amount of the
Loans outstanding on the Conversion Date. Such installments shall be due
and payable on the first day of each calendar month, commencing on June 1,
2000; provided, that the outstanding principal amount of the Loans,
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together with all interest accrued thereon and all fees and expenses
incurred by the Bank in connection therewith, shall be due and payable on
the Maturity Date.
(c) The Borrower shall have the right at any time, subject to the
indemnity provisions of (S)3.1(b), to prepay voluntarily the Loans on or
before the Maturity Date, as a whole, or in part; provided that each
partial prepayment shall be in the principal amount of $25,000 or an
integral multiple thereof. The Borrower shall give the Bank, no later than
2:00 p.m. Boston, Massachusetts time on the date of such prepayment,
written notice of any proposed prepayment pursuant to this (S)2.2(c) and
the principal amount to be prepaid. Any partial prepayment of the Loans
shall be applied (i) prior to the Conversion Date, to the aggregate
principal amount of the Loans outstanding on the date of such prepayment
and, (ii) on and after the Conversion Date, to the scheduled installments
of the principal due on the Loans (including the final installment due and
payable on the
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Maturity Date) in inverse order of maturity. No amount repaid may be
reborrowed. Any voluntary prepayment of principal of the Loans shall also
include all interest accrued to the date of prepayment.
3. INTEREST, OVERDUE PAYMENTS.
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3.1. Interest on Loans. Except as otherwise provided in (S)3.2, each
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Loan shall bear interest as follows:
(a) Except as set forth in (S)3.1(b) hereof, the Borrower agrees to
pay interest on the Loans at a rate per annum which is equal to the Base
Rate in effect from time to time, plus one percent (1.0%), such interest to
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be payable in arrears on the first day of each calendar month for the
immediately preceding calendar month, commencing the first such day
following the date hereof.
(b) To the extent that the Borrower has requested, by written notice
provided to the Bank not more than thirty (30) days but not less than seven
(7) days prior to the Conversion Date, a fixed rate option as quoted by the
Bank (not more than five (5) and not less than two (2) Business Days prior
to the Conversion Date) applicable on and after the Conversion Date for the
Loan. Such fixed rate of interest shall be determined and quoted by the
Bank, in its sole and absolute discretion. The Borrower may elect, by
written notice provided to the Bank on or before the Conversion Date, that
interest applicable to the Loan accrue on and after the Conversion Date at
such fixed rate of interest. Interest on the Loan at such fixed rate shall
be payable in arrears on the first day of each calendar month for the
immediately preceding calendar month, commencing with the first such day
following the Conversion Date. The Borrower shall have no right to convert
the rate of interest on the Loans on any date other than the Conversion
Date. If the Borrower elects the fixed rate of interest under this
(S)3.1(b), the Borrower agrees to indemnify the Bank and hold the Bank
harmless from and against any loss, cost or expense (including loss of
anticipated profits) that the Bank may sustain or incur as a consequence of
any prepayment, in full or in part, of the Loans.
3.2. Interest after Default. While an Event of Default is continuing,
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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 to (i) to rate of interest in effect on such amounts immediately
preceding such Event of Default and (ii) two percent (2.0%) 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 Bank (after as well as before judgment).
3.3. Overdue Payments. If a payment of principal and/or interest due
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hereunder or.under the Note is not made within ten (10) days of when due, the
Borrower shall pay a late payment charge to the Bank equal to five percent
(5.0%) of the amount then due and owing. Nothing contained herein shall affect
Bank's right to demand the Obligations upon the occurrence of an Event of
Default.
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4. FEES AND PAYMENTS.
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Contemporaneously with execution and delivery of this Agreement, the
Borrower shall pay to the Bank a facility fee in the amount of $50,000;
provided, that if, within one year of the Closing Date, the Bank makes an
additional loan to the Borrower and the principal amount of such loan is not
less than $10,000,000, the Bank agrees to reduce any fee charged on such loan by
$25,000. Nothing contained herein shall be construed by the Bank as a
commitment by the Bank to make any additional loan to the Borrower. 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
Bank's head office at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, without
setoff or counterclaim and without any withholding or deduction whatsoever. The
Bank shall be entitled to charge any account of the Borrower with the Bank for
any sum due and payable by the Borrower to the 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 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.
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The Borrower represents and warrants to the Bank on the date hereof, on the
date of any request for any Loan and on each Drawdown Date that:
(a) the Borrower and each of 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 in which such qualification is required, except where the
failure to be so qualified would not have a Materially Adverse Effect, and
the execution, delivery and performance by the Borrower of the Loan
Documents (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,
enforceable in accordance with its terms, except to the extent that such
enforcement may be limited by applicable bankruptcy, insolvency and other
similar laws affecting creditors' rights generally and by general
principles of equity;
(c) except as described on Schedule 5(c)(i) attached hereto, each ,of
the Borrower and each of 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,
licenses (including, without limitation, all FCC Licenses and DPUC
Licenses) and Consents, adequate for the conduct of its business as now
conducted. Neither the Borrower nor any of its Subsidiaries has or
requires any FCC Licenses to own or operate its businesses. All DPUC
Licenses held by the Borrower and its Subsidiaries are described on
Schedule 5(c)(ii) attached hereto or as otherwise provided by the Borrower
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to the Bank in writing after the Closing Date. With respect to the System,
the Borrower serves as the internet service provider. The Borrower and its
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Subsidiaries are in compliance in all material respects with all applicable
state and Federal filing and operating requirements and all applicable
rules and regulations of the FCC and each DPUC, including all regulations
governing equal employment opportunity and all filing requirements under
the Communications Act, the noncompliance with which would have a
Materially Adverse Effect. Borrower has not received any written notice of
any threat of any investigation, notice of violation, order, complaint or
proceeding before the FCC and/or any DPUC against the Borrower other than
routine proceedings relating to the issuance or renewal of DPUC licenses of
the Borrower or any of its Subsidiaries and the Borrower has no reason to
believe that any of such licenses will not be renewed in the ordinary
course or, if not renewed, would have a Materially Adverse Effect. The
Borrower and each of its Subsidiaries maintain insurance with financially
responsible insurers, copies of the policies for which have been previously
delivered to the Bank, covering such risks, and in such amounts and with
such deductibles as are customary in the Borrower's and its Subsidiaries'
business and are adequate;
(d) the Borrower has provided to the Bank its consolidated compiled
Financials as at December 31, 1998 and for February, 1999, and such
Financials are complete and correct and fairly present the position of the
Borrower and its Subsidiaries as at such date and for such period in
accordance with GAAP consistently applied;
(e) since December 31, 1998, 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, to Borrower's knowledge, 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 the Borrower or any of
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 in a manner which could have a Materially Adverse Effect, 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) upon execution and delivery of the Security Documents and the
filing of documents thereby required, the Bank shall have first-priority
perfected Liens on the Collateral, subject only to Liens permitted
hereunder and entitled to priority under
-13-
applicable law, with no financing statements, chattel mortgages, real
estate mortgages or similar filings on record anywhere which conflict with
such first-priority Liens of the Bank;
(j) the Borrower and its Subsidiaries have reviewed the areas within
their businesses and operations which could be adversely affected by, and
have developed or is developing a program to address on a timely basis, the
"Year 2000 Problem" (i.e. the risk that computer applications used by the
Borrower or any of its Subsidiaries may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any
date after December 31, 1999). Based upon such review, the Borrower
reasonably believes that the "Year 2000 Problem" will not have any
Materially Adverse Effect on the Borrower or any of its Subsidiaries; and
(k) except as set forth on, Schedule 5(k) hereto, as of the Closing
Date the Borrower has no subsidiaries and is not a party to any
partnership.
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 Bank may require at or prior to the time of executing,
this Agreement, the obligation of the Bank to make any Loan hereunder is subject
to the satisfaction of the following further conditions precedent:
(a) each of the representations and warranties of the Borrower to the
Bank herein, in any of the other Loan Documents 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 Bank, and the
Bank shall have received all information and documents as it may have
reasonably requested; and
(d) no change shall have occurred in any law or regulation or in the
interpretation thereof, that in the reasonable opinion of the Bank would
make it unlawful for the Bank to make such Loan.
7. COVENANTS.
---------
7.1. Affirmative Covenants. The Borrower agrees that so long as there
---------------------
are any Loans outstanding and 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 their obligations as set
forth throughout this Agreement and to:
-14-
(a) furnish the Bank: (i) as soon as available but in any event within
ninety (90) days after the close of each fiscal year, its consolidated and
consolidating audited Financials for such fiscal year, certified by
PricewaterhouseCoopers LLP or by other independent certified public
accountants reasonably satisfactory to the Bank; (ii) as soon as available
but in any event within forty-five (45) days after the end of each fiscal
quarter of the Borrower occurring after the initial public offering by the
Borrower, its consolidated and consolidating audited Financials for such
fiscal quarter, certified by its president, chief financial officer or
director of finance; (iii) as soon as available but in any event within
thirty (30) days after the end of each calendar month occurring on or
before the initial public offering by the Borrower, its consolidated and
consolidating unaudited Financials for such month, certified by its
president, chief financial officer or director of finance; (iv) together
with the monthly, quarterly and annual Financials, a certificate of the
Borrower 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; and (v) within twenty (20) days after
the end of each calendar month, or at such other time or times as the Bank
may request, a Borrowing Base report, in form and detail reasonably
satisfactory to the Bank, demonstrating the Borrowing Base as at the end of
such month or other applicable date requested;
(b) keep true and accurate books of account in accordance with GAAP,
maintain its current fiscal year and upon reasonable prior notice (unless a
Default or Event of Default has occurred and is continuing, whereupon no
notice shall be required) permit the 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
Bank, and to permit the Bank's commercial finance examiners to conduct
periodic commercial finance examinations;
(c) (i) maintain its corporate existence and business, and keep its
assets in good repair, ordinary wear and tear excepted, (ii) keep its
business and assets adequately insured, (iii) maintain its chief executive
office in the United States, (iv) continue to engage in the same lines of
business, (v) continue to hold and comply in all material aspects with all
permits and licenses required for the operation of its business, including
without limitation, the DPUC Licenses, to the extent the failure to do so
would have a Materially Adverse Effect and (vi) comply in all material
respects with all Requirements of Law, including ERISA, the Communications
Act and Environmental Laws, to the extent the failure to do so would have a
Materially Adverse Effect;
(d) notify the Bank promptly in writing of (i) the occurrence of any
Default or Event of Default, (ii) any noncompliance with ERISA, the
Communications Act, any DPUC rule or regulation 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 any of its Subsidiaries (other
than routine proceedings related to issuance or renewal of DPUC Licenses
and FCC Licenses), and of which the Borrower has received notice or any
material change in any such litigation or proceeding previously reported,
(v) claims
-15-
against any assets or properties of the Borrower or any of its
Subsidiaries, (vi) any proceedings instituted by or against the Borrower or
any of its Subsidiaries in any Federal or state court or any other
commission or other regulatory body (including, without limitation, the FCC
or any DPUC), whether Federal, state or local, which, if adversely
determined, would have a Materially Adverse Effect and (vii) within thirty
(30) days of the formation thereof, any new Subsidiaries of the Borrower or
any of its Subsidiaries;
(e) use the proceeds of the Loans solely to acquire the Equipment
Collateral to be used now or in the future in the ordinary course of the
Borrower's business, 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) maintain all of its primary bank operating accounts with the Bank;
and
(g) cooperate with the Bank, take such action, execute such documents,
and provide such information as the Bank may from time to time reasonably
request in order further to effect the transactions contemplated by and the
purposes of the Loan Documents.
7.2. Negative Covenants. The Borrower agrees that so long as there are
------------------
any 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 any of its Subsidiaries to:
(a) create, incur or assume any Indebtedness other than (i)
Indebtedness to the Bank, (ii) Indebtedness in respect of the acquisition
of property or under any Capitalized Lease Obligation which does not exceed
(A) on or prior to the Offering, $1,000,000 in the aggregate and (B) after
the Offering, $5,000,000 in the aggregate, (iii) 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 account
customarily extended, (iv) 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, and (v) Indebtedness not
included above and listed on Schedule 7.2(a) hereto;
---------------
(b) create or incur any Liens on any of the property or assets of the
Borrower or any of its Subsidiaries or enter into or permit to exist any
arrangement or agreement which directly or indirectly prohibits Borrower or
any of its Subsidiaries from creating or incurring any lien, encumbrance,
mortgage, pledge, charge, restriction or other security interest of any
kind other than pursuant to the Security Agreement except (i) Liens
securing the Obligations; (ii) Liens securing taxes or other governmental
charges not yet due or if due, they are being contested in good faith by
appropriate proceedings and for which appropriate reserves are maintained;
(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 net yet due, or which
are being contested in good faith by appropriate proceedings and for which
appropriate reserves have been established; (v) easements, rights-of-way,
zoning restrictions and similar minor Liens which individually and in the
aggregate do not have a Materially Adverse Effect
-16-
(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; and (vii) other
Liens existing on the date hereof and listed on Schedule 7.2(b) hereto;
---------------
(c) 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) Subsidiaries, (iv) other Investments existing on the date hereof and
listed on Schedule 7.2(c) hereto or similar investments maintained with the
---------------
Bank, or (v) such other Investments as the Bank may from time to time
approve in writing;
(d) make any distributions on or in respect of its capital of any
nature whatsoever, other than dividends payable solely in shares of common
stock;
(e) become party to a sale-leaseback transaction, or to effect any
disposition of assets other than in the ordinary course, or to purchase,
lease or otherwise acquire assets other than in the ordinary course; or
(f) merge or consolidate with any Person (whether or not Borrower or
any Subsidiary is the surviving entity), or acquire all or substantially
all of the assets or any of the capital stock of any person; provided that
--------
(i) any Subsidiary may merge into the Borrower or any other Subsidiary, and
(ii) the Borrower may merge with or acquire the assets of another Person
if, after giving effect to such transaction, (i) the Borrower is the
corporation which survives such merger or acquisition, and (ii) no Default
of Event of Default would exist (or result therefrom).
7.3. Financial Covenants. The Borrower agrees that so long as there are
-------------------
any 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) permit the ratio of Consolidated Current Assets to Consolidated
Current Liabilities to be less than 1.5 to 1 at any time;
(b) permit, at any time, Shareholders' Equity to be less than
$6,000,000 plus 50% of the Net Cash Proceeds from any issuance of capital
stock, options, rights or warrants to buy capital stock or other equity
issuances received by the Borrower on or after the Closing Date; or
(c) permit the ratio of Consolidated Total Liabilities to
Shareholders' Equity to exceed 1.0 to 1 at any time.
-17-
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 Loans when the same becomes due;
(b) the Borrower shall fail to pay interest on the Loans or any other
sum due under any of the Loan Documents on the date which the same shall
have first become due and payable;
(c) the Borrower or any of its Subsidiaries shall fail to perform any
term, covenant or agreement contained in (S)(S)7.1(a), 7.1(d) through (f),
7.2 and 7.3;
(d) the Borrower or any of its Subsidiaries shall fail to perform any
other term, covenant or agreement contained in the Loan Documents within
fifteen (15) days after the Bank 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 $25,000 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) the Borrower or any of its Subsidiaries shall fail to comply in
any material respect with any applicable provision of the Communications
Act or any FCC or DPUC rule or regulation, the non-compliance with which
would have a Materially Adverse Effect, or if any DPUC License or (FCC
License, if any) held by the Borrower or any of
-18-
its Subsidiaries shall be terminated, cancelled or not renewed, or if the
Borrower or any of its Subsidiaries shall be enjoined, restrained,
prevented in any way by the order of any court or any administrative or
regulatory agency or otherwise lose the ability to conduct its entire
business for any period of seventy-two (72) or more consecutive hours, if
any such non-compliance, termination, cancellation, non-renewal,
injunction, restraint or prevention would have a Materially Adverse Effect
on the Borrower; or
(k) there shall remain undischarged for more than thirty (30) days any
final judgment or execution action against the Borrower or any of its
Subsidiaries from which no appeal may be taken that, together with other
outstanding claims and execution actions against the Borrower or such
Subsidiary exceeds $25,000 in the aggregate;
THEN, or at any time thereafter:
(1) In the case of any Event of Default under clause (g), (h) or (i),
the Commitment shall automatically terminate and the Bank shall be relieved
of all further obligations to make Loans, and the entire unpaid principal
amount of the Loans, all interest accrued and unpaid thereon, and all other
amounts payable thereunder and under the other Loan Documents shall
automatically become forthwith due and payable, without presentment,
demand, protest or notice of any kind, all of which are hereby expressly
waived by the Borrower; and
(2) In the case of any Event of Default other than (g), (h) and (i),
the Bank may, by written notice to the Borrower, terminate the Commitment
and/or declare the unpaid principal amount of the Loans, all interest
accrued and unpaid thereon, and all other amounts payable hereunder and
under the other Loan Documents to be forthwith due and payable, without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower.
No remedy herein conferred upon the Bank is intended to be exclusive of any
other remedy and each and every remedy shall be cumulative and in addition to
every other remedy hereunder, now or hereafter existing at law or in equity or
otherwise.
9. SETOFF.
------
Borrower and any guarantor hereby grant to Bank a lien, security interest
and right of setoff as security for all liabilities and obligations to Bank,
whether now existing or hereafter arising, upon and against all deposits,
credits, collateral and property, now or hereafter in the possession, custody,
safekeeping or control of Bank or any entity under the control of Fleet
Financial Group, Inc. or in transit to any of them. At any time during the
existence of a Default or Event of Default, without demand or notice, Bank may
set off the same or any part thereof and apply the same to any liability or
obligation of Borrower and any guarantor even though unmatured and regardless of
the adequacy of any other collateral securing the Loan. ANY AND ALL RIGHTS TO
REQUIRE BANK TO EXERCISE ITS RIGHTS OR REMEDIES WITH RESPECT TO ANY OTHER
COLLATERAL WHICH SECURES THE LOAN, PRIOR TO EXERCISING ITS RIGHT OF SETOFF WITH
RESPECT TO SUCH DEPOSITS, CREDITS
-19-
OR OTHER PROPERTY OF THE BORROWER OR ANY GUARANTOR, ARE HEREBY KNOWINGLY,
VOLUNTARILY AND IRREVOCABLY WAIVED.
10. MISCELLANEOUS.
--------------
The Borrower agrees to indemnify and hold harmless the Bank and its
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 absent the gross
negligence or willful misconduct of the Bank. The Borrower shall pay to the
Bank promptly on demand all costs and expenses (including any taxes and
reasonable legal and other professional fees and fees of its commercial finance
examiner) incurred by the Bank in connection with the preparation, negotiation,
execution, amendment, administration or enforcement of any of the Loan
Documents. Any communication to be made hereunder shall (i) be made in writing,
but unless otherwise stated, may be made by telex, facsimile transmission or
letter, and (ii) 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, 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 and the Bank, and any such amendment or waiver shall be
effective only for the specific purpose given. 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
hereto 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 charged. THIS AGREEMENT AND THE NOTE 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.
11. CONFIDENTIALITY.
---------------
The Bank agrees, on behalf of itself and each of its affiliates, directors,
officers, employees and representatives to use reasonable precautions to keep
confidential, in accordance
-20-
with its customary procedures for handling confidential information of the same
nature and in accordance with safe and sound banking practices, any non-public
information supplied to it by the Borrower or any of its Subsidiaries pursuant
to this Agreement, provided that nothing herein shall limit the disclosure of
--------
any such information (a) after such information shall have become public other
than through a violation of this (S)11, (b) to the extent required by statute,
rule, regulation or judicial process, (c) to counsel for the Bank, (d) to bank
examiners or any other regulatory authority having jurisdiction over the Bank,
or to auditors or accountants, (e) to the Bank, (f) in connection with any
litigation to which the Bank is a party, or in connection with the enforcement
of rights or remedies hereunder or under any other Loan Document, (g) to a
Subsidiary or affiliate of the Bank subject to the confidentiality provisions
contained herein or (h) to any assignee or participant (or prospective assignee
or participant) so long as such assignee or participant agrees to be bound by
the provisions hereof.
12. PREJUDGMENT REMEDY WAIVER
-------------------------
THE BORROWER ACKNOWLEDGES THAT THE FINANCING EVIDENCED HEREBY IS A
COMMERCIAL TRANSACTION WITHIN THE MEANING OF CHAPTER 903a OF THE CONNECTICUT
GENERAL STATUTES. THE BORROWER HEREBY WAIVES ITS RIGHT TO NOTICE AND PRIOR
COURT HEARING OR COURT ORDER UNDER CONNECTICUT GENERAL STATUTES SECTIONS 52-278a
ET. SEQ. AS AMENDED OR UNDER ANY OTHER STATE OR FEDERAL LAW WITH RESPECT TO
ANY AND ALL PREJUDGMENT REMEDIES THE BANK MAY EMPLOY TO ENFORCE ITS RIGHTS AND
REMEDIES HEREUNDER. MORE SPECIFICALLY, THE BORROWER ACKNOWLEDGES THAT THE
BANK'S ATTORNEY MAY, PURSUANT TO CONN. GEN. STAT. (S)52-278F, ISSUE A WRIT FOR
A PREJUDGMENT REMEDY WITHOUT SECURING A COURT ORDER. THE BORROWER ACKNOWLEDGES
AND RESERVES ITS RIGHT TO NOTICE AND A HEARING SUBSEQUENT TO THE ISSUANCE OF A
WRIT FOR PREJUDGMENT REMEDY AS AFORESAID AND THE BANK ACKNOWLEDGES THE
BORROWER'S RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE OF SAID WRIT. THE
BORROWER FURTHER WAIVES ITS RIGHTS TO REQUEST THAT THE BANK POST A BOND, WITH OR
WITHOUT SURETY, TO PROTECT BORROWER AGAINST DAMAGES THAT MAY BE CAUSED BY ANY
PREJUDGMENT REMEDY SOUGHT OR OBTAINED BY BANK.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first above written.
XXX.XXX, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------
/s/ Xxxxxx X. Xxxxxxxxxx By: /s/ Xxxxxx Xxxxxx
-------------------------- --------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
-21-
Address:
000 Xxxx Xxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxx, XX 00000
Tel:
Fax:
FLEET NATIONAL BANK
By:
--------------------------
Name: Xxxxxx X. Head, Jr.
Title: Senior Vice President
Address:
One Federal Street
Mail Stop MAOFD07A
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
WRIT FOR A PREJUDGMENT REMEDY WITHOUT SECURING A COURT ORDER. THE BORROWER
ACKNOWLEDGES AND RESERVES ITS RIGHT TO NOTICE AND A HEARING SUBSEQUENT TO THE
ISSUANCE OF A WRIT FOR PREJUDGMENT REMEDY AS AFORESAID AND THE BANK ACKNOWLEDGES
THE BORROWER'S RIGHT TO SAID HEARING SUBSEQUENT TO THE ISSUANCE OF SAID WRIT.
THE BORROWER, FURTHER WAIVES ITS RIGHTS TO REQUEST THAT THE BANK POST A BOND,
WITH OR WITHOUT SURETY, TO PROTECT BORROWER AGAINST DAMAGES THAT MAY BE CAUSED
BY ANY PREJUDGMENT REMEDY SOUGHT OR OBTAINED BY BANK.
IN WITNESS WHEREOF, the undersigned have duly executed this Credit
Agreement as a sealed instrument as of the date first above written.
XXX.XXX, INC.
/s/ Xxxxxx X. Xxxxx
--------------------------
By: /s/ Xxxxxx Xxxxxx
--------------------------
/s/ Xxxxxx X. Xxxxxxxxxx Name: Xxxxxx Xxxxxx
--------------------------
Title: Vice President
-22-
Address:
000 Xxxx Xxxxx Xxxxx
0xx Xxxxx
Xxx Xxxxx, XX 00000
Tel:
Fax:
FLEET NATIONAL BANK
By: /s/ Xxxxxx X. Head, Jr.
--------------------------
Name: Xxxxxx X. Head, Jr.
Title: Senior Vice President
Address:
One Federal Street
Mail Stop MAOFD07A
Xxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000