1
EXHIBIT 10.1
EXECUTION COPY
AMENDMENT dated as of December 7, 2000 (this
"Amendment"), to the credit agreement dated as of
January 7, 2000, among iXL ENTERPRISES, INC., a
Delaware corporation (the "Borrower"), the lenders
party thereto (the "Lenders"), and THE CHASE
MANHATTAN BANK, as administrative agent (in such
capacity, the "Administrative Agent").
A. Pursuant to the Credit Agreement, the Lenders have
extended credit to the Borrower.
B. The Borrower has requested that the Required Lenders
and the Administrative Agent agree to amend certain provisions of the Credit
Agreement, as hereinafter provided.
C. The undersigned Lenders and the Administrative Agent
are willing to amend the Credit Agreement, in each case pursuant to the terms
and subject to the conditions set forth herein.
D. Capitalized terms used but not defined herein shall
have the meanings assigned to them in the Credit Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Amendment of Section 1.01. Section 1.01 of the
Credit Agreement is hereby amended by:
(a) revising the definition of "Borrowing Base" to read
in its entirety as follows:
"Borrowing Base" means an amount equal to the Billed
Receivable Availability. The Borrowing Base shall be computed
as of the end of each fiscal month and at such other times as
may be reasonably requested by the Collateral Agent; provided
that the Borrowing Base in effect at any time shall be
determined by reference to the most recent Borrowing Base
Certificate delivered to the Administrative Agent, absent any
error in such Borrowing Base Certificate. Standards for
calculation of the Borrowing Base may be fixed from time to
time solely by the Administrative Agent in the exercise of its
reasonable judgment, with any changes in such standards to be
effective 30 days after delivery of notice thereof to the
Borrower; provided, however that the Administrative Agent
shall obtain the prior written consent of the Required Lenders
to any such change with has the effect of increasing the
amount of the Borrowing Base."; and
2
2
(b) deleting the definitions "Eligible Unbilled
Accounts," "Unbilled Receivable Availability" and "Video Equipment
Valuation."
SECTION 2. Amendment of Section 4.02. Section 4.02 of the
Credit Agreement is hereby amended to insert the following new clause
(g) immediately after clause (f) thereof
"(g) After giving effect to such Borrowing or the issuance,
amendment, renewal or extension of such Letter of Credit, as
applicable, the Borrower shall be in compliance with Section 6.17."
SECTION 3. Amendment to Section 6.05. Section 6.05 of the
Credit Agreement is hereby amended (i) to delete the word "and"
immediately after clause (c) thereof; (ii) to delete the period (".")
now appearing at the end of clause (d) and substituting the phrase ";
and" therefor; and (iii) to insert the following new clause (e)
immediately after clause (d) thereof:
"(e) sales, transfers and dispositions of Equity Interests;
provided that such sale, transfer or disposition shall be approved by
the Borrower's board of directors or by the Required Lenders; provided
further that upon the sale, transfer or disposition of any such Equity
Interests, the Administrative Agent shall effectuate the prompt release
of any lien on such Equity Interests and prompt delivery of any
documents pledged to the Administrative Agent with respect to such
Equity Interests."
SECTION 4. Amendment of Section 6.13. Section 6.13 of the
Credit Agreement is hereby amended to read in its entirety as follows:
"SECTION 6.13. Capital Expenditures. The Borrower will not
permit the aggregate amount of Capital Expenditures in any fiscal year
to exceed (i) the Budgeted Amount in the fiscal year ending December
31, 2000 and (ii) $30,000,000 in the fiscal year ending December 31,
2001."
SECTION 5 Amendment of Section 6.14. Section 6.14 of the
Credit Agreement is hereby amended to read in its entirety as follows:
"SECTION 6.14. Minimum Consolidated EBITDA. The Borrower will
not permit Consolidated EBITDA for any of the following periods ending
on any date set forth below to be less than the amount set forth below
opposite such date:
Date Amount
---- ------
Twelve Months Ending December 31, 2000 -65,000,000
Twelve Months Ending March 31, 2001 -60,000,000
Twelve Months Ending June 30, 2001 -50,000,000
3
3
Twelve Months Ending September 30, 2001 -10,000,000
Twelve Months Ending December 31, 2001 40,000,000
SECTION 6. Addition of Section 6.17. Article VI of the Credit
Agreement is hereby amended by adding a new Section 6.17 as follows:
"SECTION 6.17. Minimum Liquidity. The Borrower will not on any
date permit the sum of (a) the aggregate Revolving Commitments of the
Lenders minus the aggregate Revolving Exposures of the Lenders on such
date and (b) cash and cash equivalents owned by the Borrower on such
date to be less than $30,000,000."
SECTION 7. Amendment of Exhibit G to the Credit Agreement.
Exhibit G to the Credit Agreement is hereby replaced in its entirety
with Exhibit G hereto.
SECTION 8. Amendment of Exhibit H to the Credit Agreement. The
Credit Agreement is hereby amended by adding a new Exhibit H to the
Credit Agreement in the form of Exhibit H hereto.
SECTION 9. Amendment of Exhibit I to the Credit Agreement. The
Credit Agreement is hereby amended by adding a new Exhibit I to the
Credit Agreement in the form of Exhibit I hereto.
SECTION 10 Waiver; Suspension of Future Borrowings. Upon the
effectiveness of this Amendment, the Required Lenders hereby waive any
Event of Default resulting from a failure to comply with Section 6.14
of the Credit Agreement in respect of the period of twelve months ended
September 30, 2000. Until the date on which the Borrower supplies the
Administrative Agent and its counsel with (i) all information,
financing statements and other documents required in order to effect
all UCC fixture filings required under the Loan Documents, and such
filings have been made and (ii) a fully executed custody and control
agreements securing the Borrower's depository and investment accounts
with Xxxxxxxxx, Xxxxxx & Xxxxxxxx in accordance with the Loan
Documents, the Borrower shall not be allowed to request Borrowings or
the issuance of Letters of Credit under the Credit Agreement, and any
such request shall be of no effect.
SECTION 11. Representations and Warranties. To induce the
other parties hereto to enter into this Amendment, the Borrower
represents and warrants to each of the Lenders and the Administrative
Agent that, after giving effect to this Amendment, (a) the
representations and warranties set forth in Article III of the Credit
Agreement are true and correct in all material respects on and as of
the date hereof, except (i) for Sections 3.04(d) and 3.11 and (ii) to
the extent such representations and warranties expressly relate to an
earlier date, and (b) no Default or Event of Default (other than as
described in Section 7 above) has occurred and is continuing.
4
4
SECTION 12. Fees. The Borrower hereby agrees to pay to the
Administrative Agent on the effective date of this Amendment for the
account of each Lender the fees separately agreed to by the Borrower
and the Administrative Agent and notified to the Lenders. Such fees
will be payable by wire transfer of immediately available funds. Once
paid, no portion of such fees shall be refundable.
SECTION 13. Conditions to Effectiveness. This Amendment shall
become effective only upon satisfaction of the following conditions:
(a) the Administrative Agent shall have received
counterparts of this Amendment that, when taken together, bear
the signatures of the Borrower and the Required Lenders;
(b) The Borrower shall have delivered to the
Administrative Agent and each Lender a Borrowing Base
Certificate (in the form of Exhibit G hereto) as of October
31, 2000 together with the other certificates and supporting
documentation required by Section 5.01(f) of the Credit
Agreement, except to the extent otherwise agreed upon between
the Administrative Agent and the Borrower; and
(c) The Borrower shall have paid all amounts payable
to the Administrative Agent, the Collateral Agent and their
counsel pursuant to Section 9.03(a) of the Credit Agreement,
to the extent such amounts have been invoiced.
SECTION 14. Effect of Amendment. Except as expressly set forth
herein, this Amendment shall not by implication or otherwise limit,
impair, constitute a waiver of, or otherwise affect the rights and
remedies of the Lenders, the Administrative Agent or the Collateral
Agent under the Credit Agreement or any other Loan Document, and shall
not alter, modify, amend or in any way affect any of the terms,
conditions, obligations, covenants or agreements contained in the
Credit Agreement or any other Loan Document, all of which are ratified
and affirmed in all respects and shall continue in full force and
effect. Nothing herein shall be deemed to entitle any Loan Party to a
consent to, or a waiver, amendment, modification or other change of,
any of the terms, conditions, obligations, covenants or agreements
contained in the Credit Agreement or any other Loan Document in similar
or different circumstances. This Amendment shall apply and be effective
only with respect to the provisions of the Credit Agreement
specifically referred to herein. After the effective date hereof, any
reference to the Credit Agreement shall mean the Credit Agreement, as
modified hereby. This Amendment shall constitute a "Loan Document" for
all purposes of the Credit Agreement and the other Loan Documents.
SECTION 15. Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be
deemed an original, but all such
5
5
counterparts together shall constitute but one and the same contract.
Delivery of an executed counterpart of a signature page of this
Amendment by facsimile transmission shall be as effective as delivery
of a manually executed counterpart hereof.
SECTION 16. Applicable Law. THIS AMENDMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 17. Headings. The headings of this Amendment are for
purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
SECTION 18. Expenses. The Borrower agrees to reimburse the
Administrative Agent for all out-of-pocket expenses in connection with
this Amendment, including the reasonable fees, charges and
disbursements of Cravath, Swaine & Xxxxx, counsel for the
Administrative Agent.
6
6
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed by their duly authorized officers, all as of the
date and year first above written.
iXL ENTERPRISES, INC.,
by /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: EVP & CFO
THE CHASE MANHATTAN BANK, individually
and as Administrative Agent,
by /s/ Xxxxxx XxXxxxxx
------------------------------------
Name: Xxxxxx XxXxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK,
by
------------------------------------
Name:
Title:
FIRST HAWAIIAN BANK,
by /s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President
7
7
GENERAL ELECTRIC CAPITAL
CORPORATION,
by /s/ Xxxxxxx X. Xxxx
------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
ABN AMRO,
by
------------------------------------
Name:
Title:
8
Exhibit G
iXL Enterprises, Inc.
Form of Monthly Borrowing Base Certificate(*)
For the Month Ended
A. Billed Receivable Availability
(from page 2 of 3) $_______
B. Lower of:
Borrowing Base (line A) $________
$________
Revolving Commitment $________
C. Aggregate principal amount of all Revolving Loans
outstanding $________
D. LC Exposure $________
E. Revolving Exposure (lines C + D) $________
F. Excess Availability
(line B minus line E, if positive number) $________
G. Mandatory prepayment
(line B minus line E, if negative number) $________
Officer's Certification:
Pursuant to the Credit Agreement dated as of January 7, 2000 (capitalized terms
used herein shall have the meaning assigned to such terms in the Credit
Agreement), the undersigned certifies that the information provided in this
certificate to The Chase Manhattan Bank, as Administrative Agent, is accurate
and complete based on the accounting records of iXL Enterprises, Inc.
-------------------------------- ----------------------------------
Signature & Title Date
--------------- -----------
-------------------------------
(*) The Borrowing Base Certificate is to be accompanied by documentation
outlined in Schedule 1 to Exhibit G.
9
iXL Enterprises, Inc.
Form of Monthly Borrowing Base Certificate(*)
For the Month Ended
Advance
Total Rate Availability
Total billed A/R per invoice date
agings: ____________(a)
Less ineligible billed A/R:
Sole lawful and absolute title ___________
Unapplied cash ___________
Intercompany/affiliate/related party ___________
>90 days old/>60 days past due ___________
50% cross age ___________
Deferred revenue ___________
Contra or offsetting payable ___________
Disputed accounts/chargebacks ___________
Insolvent account debtor ___________
Foreign ___________
Repurchase or return arrangements
(e.g. xxxx and hold, consignment, etc.) ___________
Government ___________
Customer deposit/retainage ___________
No valid and perfected first
priority security interest ___________
Credit reclass ___________
Concentration cap at 25% ___________
Other (to comply with terms of
Credit Agreement) ___________
Total ineligible billed A/R ___________
Eligible Billed A/R ___________75% ___________
---------------
(*) The Borrowing Base Certificate is to be accompanied by
documentation outlined in Schedule 1 to Exhibit G.
(a) Amount must agree to Total Company amount on Monthly Activity
Report (page 3).
10
iXL Enterprises, Inc.
Form of Monthly Borrowing Base Certificate(*)
Monthly Billed A/R Activity Report
For the Month Ended _______________
Accounts Receivable
locations (b)
Total Company
Beginning billed A/R _____________ _______________
+ Gross sales _____________ _______________
- Collections/cash receipts _____________ _______________
- Credits _____________ _______________
- Allowances _____________ _______________
- Discounts _____________ _______________
- Write-offs _____________ _______________
+ Other debit adjustments _____________ _______________
- Other credit adjustments _____________ _______________
= Ending billed A/R _____________ _______________(c)
---------------
(*) The Borrowing Base Certificate is to be accompanied by
documentation outlined in Schedule 1 to Exhibit G.
(b) Rollforward must be prepared for each Accounts Receivable location,
including Atlanta, Boston, Charlotte, Chicago, Denver, Los Angeles, Memphis, New
York, Richmond, San Diego, San Francisco, Wakefield and Washington, D.C.
(c) Amount must agree to total billed A/R on Borrowing Base Certificate
(Page 1).
11
Schedule 1 to Exhibit G
iXL Enterprises, Inc.
Reporting Requirements
The information detailed below is to be submitted for each office and
location of iXL Enterprises, Inc. (including Atlanta, Boston, Charlotte,
Chicago, Denver, Los Angeles, Memphis, New York, Richmond, San Diego, San
Francisco, Wakefield and Washington, D.C.) on the 20th day following the end of
each calendar month.
1. Borrowing Base Certificate in the form of Exhibit G, including
billed A/R rollforward per the Monthly Activity Report
(Exhibit G, page 2).
2. Supporting documentation and detailed schedules related to the
calculation of ineligibles and reserves.
3. Supporting documentation for the Monthly Activity Report
(Exhibit G, page 2), as follows:
- Total page of invoice (sales/billing) register
- Total page of cash receipts journal
- Total page of credit and adjustments register (should
include credit memos issued, write-offs, returns,
discounts and other credit adjustments)
4. Billed A/R aging by customer for each Accounts Receivable
Subsidiary.
5. Reconciliation of billed A/R aging reports to general ledger.
6. Analysis of deferred revenue for each Accounts Receivable
Subsidiary by contract/project with comparison to the
respective customer's aggregate billed A/R balance.
7. Accounts payable agings for each Accounts Receivable
Subsidiary.
8. Contract profitability analysis for the ten largest projects
(based on revenue) for each Accounts Receivable subsidiary.
(Note: this analysis is required only for the subsidiaries for
which it is available.)
12
2
Submit to:
The Chase Manhattan Bank
Collateral Agent Services Group
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Gontaryk, AT
Tel.: 000-000-0000
Fax: 000-000-0000
13
EXHIBIT H
FORM OF
BORROWING REQUEST
The Chase Manhattan Bank, as Administrative
Agent for the Lenders referred to below,
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention of [ ]
[Date]
Ladies and Gentlemen:
The undersigned, iXL Enterprises, Inc., a Delaware corporation (the
"Borrower"), refers to the Credit Agreement dated as of January 7, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"), among the Borrower, the lenders party thereto (the "Lenders") and
The Chase Manhattan Bank, as administrative agent for the Lenders (in such
capacity, the "Administrative Agent"). Capitalized terms used herein and not
otherwise defined herein shall have the meanings assigned to such terms in the
Credit Agreement. The Borrower hereby gives you notice pursuant to Section 2.02
of the Credit Agreement that it requests a Borrowing under the Credit Agreement,
and in that connection sets forth below the terms on which such Borrowing is
requested to be made:
(A) Date of Borrowing
(which is a Business Day)
-----------------------
(B) Principal Amount of
Borrowing (1)
-----------------------
---------------------
(1) Not less than $1,000,000 and in an integral multiple of $1,000,000 for
Eurodollar Borrowings and not less than $100,000 and in an integral multiple of
$100,000 for ABR Borrowings, but in any event not exceeding, as applicable, the
available Commitment.
14
2
(C) Interest rate basis (2)
(D) Interest Period and the last day thereof (3)
(E) Funds are requested to be disbursed to the Borrower's account with The
Chase Manhattan Bank (Account No. ).
If the sum of the following calculations (as calculated giving effect
to the Borrowing proposed by this Borrowing Request) do not equal at least
$30,000,000, the Borrower may not make any Borrowings under the Credit
Agreement, and this Borrowing Request shall be null and void.
The aggregate Revolving Commitments of the Lenders
(or, if the most recently calculated Borrowing Base is
lower than the aggregate Revolving Commitments, the Borrowing Base): $________
minus the aggregate Revolving Exposures of the Lenders: -$________
plus the cash and cash equivalents owned by the Borrower: +$________
Upon acceptance of any or all of the Loans offered by the Lenders in response
to this request, the Borrower shall be deemed to have represented and warranted
that the relevant conditions to lending specified in Article III of the Credit
Agreement have been satisfied.
iXL Enterprises, Inc.,
by:
---------------------------
Name:
Title:
--------------------------
(2) Specify (a) Eurodollar Borrowing or (b) ABR Borrowing.
(3) Which shall be subject to the definition of "Interest Period" and end
not later than the applicable maturity date.
15
EXHIBIT I
FORM OF
APPLICATION FOR STANDBY LC
THIS APPLICATION IS SUBJECT TO AND GOVERNED BY THE CONTINUING AGREEMENT FOR
COMMERCIAL & STANDBY LETTERS OF CREDIT DATED SEPTEMBER , 2000, BETWEEN THE
UNDERSIGNED AND THE CHASE MANHATTAN BANK (the "CONTINUING AGREEMENT").
APPLICATION
TO: THE CHASE MANHATTAN BANK
Attention: Standby Letter of Credit Department
4 Chase Metrotech Center, 8(th) Floor
Xxxxxxxx, Xxx Xxxx 00000
("Issuer")
THE UNDERSIGNED HEREBY REQUEST(S) THAT YOU ISSUE YOUR IRREVOCABLE LETTER OF
CREDIT BY:
[ ] Airmail [ ] Teletransmission (Specify means_______) [ ] Courier Service
IN FAVOR OF: TO BE ADVISED THROUGH: [ ] L/C to be confirmed
by Advising Bank
------------------------- -----------------------
------------------------- -----------------------
------------------------- -----------------------
------------------------- -----------------------
("Beneficiary")
By order of
-------------------------------------------
("Applicant")
For account of
----------------------------------------
("Account Party")
Up to an aggregate amount of _____________ [ ] If not USD Indicate Currency
_______________
Available by (Indicate A or B but not both):
[ ] A. Drafts at sight drawn on you or your correspondent when accompanied by
the following documents:
BENEFICIARY'S DATED STATEMENT PURPORTEDLY SIGNED BY ONE OF ITS OFFICIALS READING
AS FOLLOWS:
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
_________________________________________________________
[ ] B. Authenticated Teletransmission or Swift Demand to the Issuer stating:
EXPIRATION DATE:
Drafts and documents must be dated and presented to, or Tested Telex Demand
received by, the Issuer at the address set forth above not later than
_________________.
[ ] Letter of Credit to obtain "Evergreen" clause with no less than __ days'
notice of non-renewal to the Beneficiary.
[ ] Final Expiration date for Automatic Extension Clause _____________________
(Indicate final date if applicable)
[ ] Partial drawings prohibited.
[ ] Letter of Credit is Transferable
16
2
Unless otherwise stated herein, the negotiating/paying bank (if any) is
authorized to send all documents to you in one airmail or courier service, if
available.
[ ] Credit is Subject to ISP unless box is checked, whereby it shall be subject
to the UCP.
[ ] SPECIAL INSTRUCTIONS: Specify below. If additional space is needed, include
additional sheets. These sheets form an integral part of this Application.
If the sum of the following calculations (as calculated giving effect
to Letter of Credit proposed by this Application) do not equal at least
$30,000,000, the Borrower may not issue any Letters of Credit under the Credit
Agreement, and this Application shall be null and void.
The aggregate Revolving Commitments of the Lenders
(or, if the most recently calculated Borrowing Base is
lower than the aggregate Revolving Commitments, the Borrowing Base): $_________
minus the aggregate Revolving Exposures of the Lenders: - $_________
plus the cash and cash equivalents owned by the Borrower: + $_________
_________
THE TERMS AND CONDITIONS SET FORTH IN THAT CERTAIN CONTINUING AGREEMENT FOR
COMMERCIAL AND STANDBY LETTERS OF CREDIT DATED SEPTEMBER ____, 2000 HAVE BEEN
READ AND ARE HEREBY ACCEPTED AND MADE APPLICABLE TO THIS APPLICATION AND THE
CREDIT AND/OR THE UNDERSIGNED HEREBY AGREES TO ALL THE TERMS AND CONDITIONS SET
FORTH ON THE REVERSE HEREOF, ALL OF WHICH HAVE BEEN READ AND UNDERSTOOD BY THE
UNDERSIGNED
_______________________________
(Applicant)
_______________________________
(Address)
_______________________________
(Authorized Signature) (Title)
_______________________________
(Date)
17
3
THE FOLLOWING IS TO BE EXECUTED IF THE CREDIT IS TO BE ISSUED FOR THE ACCOUNT OF
A PERSON OTHER THAN THE PERSON SIGNING THE CONTINUING AGREEMENT:
AUTHORIZATION AND AGREEMENT OF ADDITIONAL PARTY NAMED AS ACCOUNT PARTY
To: THE ISSUER OF THE CREDIT
We join in the above Application, naming us as Account Party, for the issuance
of an irrevocable letter of credit and, in consideration thereof, we irrevocably
agree (i) that the above Applicant has sole right to give instructions and make
agreements with respect to this Application, the Continuing Agreement, each
Credit, and the disposition of documents, and we have no right or claim against
you, any of your affiliates or subsidiaries, or any correspondent in respect of
any matter arising in connection with any of the foregoing, (ii) to pay when due
any amount or amounts owing to you in respect of each Credit requested by the
above Application or payments or acceptances thereunder on demand therefor and
(iii) to be bound by the Continuing Agreement as fully as if we had signed and
were party to it. The Applicant is authorized to assign or transfer to you all
or any part of any security held by the Applicant for our obligations arising in
connection with this transaction and, upon any such assignment or transfer, you
shall be vested with all powers and rights in respect of the security
transferred or assigned to you and you may enforce your rights under the
Continuing Agreement against us or our Property in accordance with the terms of
the Continuing Agreement.
__________________________________
(ACCOUNT PARTY)
__________________________________
(ADDRESS)
__________________________________
(AUTHORIZED SIGNATURE)
__________________________________
(TITLE)
__________________________________
(DATE)
