364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS 364-DAY REVOLVING CREDIT AND TERM LOAN AGREEMENT is entered into as of
March 25, 1998, among XXXXXX CELLULAR OPERATIONS COMPANY, an Oklahoma
corporation ("BORROWER"), Lenders (hereinafter defined), FIRST UNION NATIONAL
BANK, as Syndication Agent (hereinafter defined), TORONTO DOMINION (TEXAS),
INC., as Documentation Agent (hereinafter defined), NATIONSBANK OF TEXAS, N.A.,
as Administrative Agent (hereinafter defined), for itself and the other Lenders,
and the Managing Agents (hereinafter defined) and Co-Agents (hereinafter
defined).
RECITALS
A. Borrower is a newly-formed, wholly-owned Subsidiary of Xxxxxx
Communications Corporation and has requested that Lenders extend credit to
Borrower in the form of this 364-Day Revolving Credit and Term Loan Agreement
(the "AGREEMENT"), providing for a 364-day revolving credit and term loan
facility in the aggregate principal amount of $80,000,000.
B. Additionally, Borrower has requested that Lenders extend additional
credit to Borrower in the form of a Revolving Credit Agreement, providing for a
revolving loan facility in the aggregate principal amount of $120,000,000 and an
uncommitted discretionary acquisition revolving facility for an aggregate
principal amount of up to $75,000,000.
C. Upon and subject to the terms and conditions of this Agreement,
Lenders are willing to extend credit to Borrower.
Accordingly, in consideration of the mutual covenants contained herein,
Borrower, Administrative Agent, Documentation Agent, Syndication Agents, and
Lenders agree, as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 DEFINITIONS. As used herein:
ACQUISITION means any transaction or series of related transactions for the
purpose of, or resulting in, directly or indirectly, (a) the acquisition by any
Company of all or substantially all of the assets of a Person or of any business
or division of a Person, (b) the acquisition by any Company of more than 50% of
any class of Voting Stock (or similar ownership interests) of any Person
(PROVIDED THAT, formation or organization of any entity shall not constitute an
"ACQUISITION" to the extent that the amount of the loan, advance, investment, or
capital contribution in such entity constitutes a permitted investment under
SECTION 9.20); or (c) a merger, consolidation, amalgamation, or other
combination by any Company with another Person if a Company is the surviving
entity; PROVIDED THAT, in any merger involving Borrower, Borrower must be the
surviving entity.
ACQUISITION COMMITMENT has the meaning given to such term in the
Revolver/Acquisition Agreement.
ACQUISITION FACILITY has the meaning given to such term in the
Revolver/Acquisition Agreement.
ACQUISITION PRINCIPAL DEBT has the meaning given to such term in the
Revolver/Acquisition Agreement.
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to
the quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar
Rate Borrowing for such Interest Period by (b) 1 minus the Reserve Requirement
for such Eurodollar Rate Borrowing for such Interest Period.
ADMINISTRATIVE AGENT means NationsBank of Texas, N.A., and its permitted
successors or assigns as "ADMINISTRATIVE AGENT" for Lenders under this
Agreement.
AFFILIATE of any Person means any other individual or entity who directly
or indirectly controls, or is controlled by, or is under common control with,
such Person, and, for purposes of this definition only, "CONTROL," "CONTROLLED
BY," and "UNDER COMMON CONTROL WITH" mean possession, directly or indirectly, of
the power to direct or cause the direction of management or policies (whether
through ownership of voting securities, by contract, or otherwise).
AGENTS means, collectively, the Administrative Agent, the Syndication
Agent, the Documentation Agent, the Collateral Agent, Managing Agents, and
Co-Agents.
AGREEMENT means this 364-Day Revolving Credit and Term Loan Agreement (as
the same may hereafter be amended, modified, supplemented, or restated from time
to time).
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Borrowing, the "LENDING OFFICE" of such Lender (or an affiliate of such Lender)
designated on SCHEDULE 2.1 attached hereto or such other office that such Lender
(or an affiliate of such Lender) may from time to time specify to Administrative
Agent and Borrower by written notice in accordance with the terms hereof.
APPLICABLE MARGIN means, on any date of determination, with respect to each
Base Rate Borrowing or Eurodollar Rate Borrowing, respectively, the percentage
per annum set forth in the appropriate column below that corresponds to the
Senior Leverage Ratio at such date of determination, as calculated based on the
quarterly compliance certificate of Borrower most recently delivered pursuant to
SECTION 7.2 hereof:
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APPLICABLE MARGIN
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EURODOLLAR RATE
SENIOR LEVERAGE RATIO BASE RATE BORROWINGS BORROWINGS
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Less than 4.00:1.0 0.125% 1.125%
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Greater than or equal to
4.00 to 1.0, 0.375% 1.375%
but less than 5.00:1.0
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Greater than or equal to
5.00:1.0, 0.625% 1.625%
but less than 6.00:1.0
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Greater than or equal to
6.00:1.0, 0.875% 1.875%
but less than 7.00:1.0
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Greater than or equal to
7.00:1.0, 1.125% 2.125%
but less than 8.00:1.0
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Greater than or equal to
8.00:1.0 1.375% 2.375%
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APPLICABLE MARGIN
------------------------------------------------
EURODOLLAR RATE
SENIOR LEVERAGE RATIO BASE RATE BORROWINGS BORROWINGS
-------------------------------------------------------------------------------
Greater than or equal to
8.00:1.0 1.375% 2.375%
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(a) Until the second Business Day after the initial Financial
Statements and Compliance Certificate for the fiscal quarter ending
December 31, 1997, shall have been delivered hereunder, the Applicable
Margin for Base Rate Borrowings and Eurodollar Rate Borrowings shall be
determined by reference to a Compliance Certificate delivered by Borrower
on the Closing Date. With respect to any adjustments in the Applicable
Margin as a result of changes in the Senior Leverage Ratio, such adjustment
shall be effective commencing on the second Business Day after the delivery
of Financial Statements (and related Compliance Certificate) pursuant to
SECTIONS 9.3(a) and 9.3(b) or the most recent Permitted Acquisition
Compliance Certificate for a Permitted Acquisition, as the case may be.
(b) If Borrower fails to timely furnish to Lenders the Financial
Statements and related Compliance Certificates as required to be delivered
pursuant to SECTIONS 9.3(a) and 9.3(b), and such failure shall not be
remedied within five days after written notice thereof from the
Administrative Agent or any Lender, then the Applicable Margin shall be the
maximum Applicable Margin specified in the Table above.
APPLICABLE MARGIN FOR COMMITMENT FEES means, on any date of determination,
the percentage set forth in the table below which corresponds, on any date of
determination, with the Senior Leverage Ratio at such date of determination, as
calculated based on the quarterly compliance certificates of Borrower most
recently delivered pursuant to SECTION 7.2 hereof.
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SENIOR LEVERAGE RATIO APPLICABLE MARGIN FOR
REQUIREMENT COMMITMENT FEES
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Greater than or equal to 5.5 to 1.0 0.2500%
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Less than 5.5 to 1.0 0.1875%
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(a) Until the second Business Day after the initial Financial
Statements and Compliance Certificate for the fiscal quarter ending
December 31, 1997, shall have been delivered hereunder, the Applicable
Margin for Commitment Fees shall be determined by reference to a Compliance
Certificate delivered by Borrower on the Closing Date. With respect to any
adjustments in the Applicable Margin for Commitment Fees as a result of
changes in the Senior Leverage Ratio, such adjustment shall be effective
commencing on the second Business Day after the delivery of Financial
Statements (and related Compliance Certificate) pursuant to SECTIONS 9.3(a)
and 9.3(b) or the most recent Permitted Acquisition Compliance Certificate
for a Permitted Acquisition, as the case may be.
(b) If Borrower fails to timely furnish to Lenders the Financial
Statements and related Compliance Certificates as required to be delivered
pursuant to SECTIONS 9.3(a) and 9.3(b), and such failure shall not be
remedied within five days after written notice thereof from the
Administrative Agent or any Lender, then the Applicable Margin for
Commitment Fees shall be the maximum Applicable Margin specified in the
table above.
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ARRANGER means NationsBanc Xxxxxxxxxx Securities LLC, and its successors
and assigns.
ASSUMED TAXES means, (a) with respect to any Equity Issuance, an amount
equal to such incremental annual increase in franchise Taxes as Borrower
estimates in good faith shall be payable as a result of such Equity Issuance,
and (b) with respect to any Significant Sale, an amount equal to such percentage
as Borrower estimates in good faith to be its effective rate of the taxable gain
for federal and state income tax purposes with respect to such Significant Sale.
AUTHORIZATIONS means all filings, recordings, and registrations with, and
all validations or exemptions, approvals, orders, authorizations, consents,
franchises, licenses, certificates, and permits from, any Governmental Authority
(including, without limitation, the FCC and applicable PUCs), including without
limitation, any of the foregoing authorizing or permitting the acquisition,
construction, or operation of any System.
BASE RATE means, for any day, the rate per annum equal to the HIGHER of (a)
the Federal Funds Rate for such day plus one-half of one percent (.5%) and (b)
the Prime Rate for such day. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Rate shall be effective on the effective date of
such change in the Prime Rate or the Federal Funds Rate.
BASE RATE BORROWING means a Borrowing bearing interest at the SUM of the
Base Rate PLUS the Applicable Margin for Base Rate Borrowings.
BORROWER is defined in the preamble to this Agreement.
BORROWING means any amount disbursed (a) by one or more Lenders to Borrower
under the Loan Papers, whether such amount constitutes an original disbursement
of funds or the continuation of an amount outstanding or (b) by any Lender in
accordance with, and to satisfy the obligations of any Company or any Guarantor
under, any Loan Paper.
BORROWING DATE is defined in SECTION 2.3(a).
BUDGET means the most recently delivered of the (a) annual financial budget
for the Companies delivered on the Closing Date as required in ITEM 22 on
SCHEDULE 7.1 delivered pursuant to SECTION 7.1 or (b) the Budget delivered
pursuant to SECTION 9.3(d), together with any adjustments to any Budget (whether
described in CLAUSE (a) or (b)) made from time to time based on projections
delivered in connection with Permitted Acquisitions pursuant to SECTION 7.2 and
the requirements of a "PERMITTED ACQUISITION" as set forth in this SECTION 1.1
SO LONG AS such projections have been approved by Administrative Agent.
BUSINESS DAY means (a) for all purposes, any day OTHER THAN Saturday,
Sunday, and any other day on which commercial banking institutions are required
or authorized by Law to be closed in Dallas, Texas, and (b) in addition to the
foregoing, in respect of any Eurodollar Rate Borrowing, a day on which dealings
in United States dollars are conducted in the London interbank market and
commercial banks are open for international business in London.
CAPITAL EXPENDITURES means an expenditure for any fixed asset having a
useful life of more than one (1) year, or any improvements or additions thereto,
including the direct or indirect acquisition of such assets, and including any
obligations to pay rent or other amounts under a Capital Lease; PROVIDED,
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HOWEVER, that Capital Expenditures shall not include acquisitions of stock or
assets which are made in accordance with SECTION 9.20 hereof.
CAPITAL LEASE means any capital lease or sublease which should be
capitalized on a balance sheet in accordance with GAAP.
CELLULAR PARTNERSHIP means any entity in which Borrower owns, directly or
indirectly, a partnership interest.
CELLULAR PARTNERSHIP OBLIGOR means, on any date of determination, those
Cellular Partnerships for which Borrower serves, directly or indirectly, as the
Managing General Partner and which have incurred Debt from any Company, which
Debt has not been terminated or with respect to which amounts remain
outstanding.
CELLULAR PARTNERSHIP PROMISSORY NOTES means certain intercompany notes, now
or hereafter existing, executed by the Cellular Partnership Obligors and payable
to the order of any Company, and CELLULAR PARTNERSHIP PROMISSORY NOTE means any
one of such intercompany notes.
CLOSING DATE means the date upon which this Agreement has been executed by
Borrower, Lenders, and Administrative Agent and all conditions precedent
specified in SECTION 7.1 have been satisfied or waived.
CO-AGENTS means Fleet National Bank, Banque Paribas, and Key Corporate
Capital Inc.
CODE means the INTERNAL REVENUE CODE OF 1986, as amended, TOGETHER WITH the
rules and regulations promulgated thereunder.
COLLATERAL has the meaning set forth in SECTION 6.1.
COLLATERAL AGENT means NationsBank of Texas, N.A., and its permitted
successors and assigns in such capacity under the Intercreditor Agreement.
COLLATERAL DOCUMENTS means all security agreements, pledge agreements,
assignments of partnership interests, and Guaranties at any time delivered to
Administrative Agent or Collateral Agent to create or evidence Liens securing
the Obligation, together with all reaffirmations, amendments, and modifications
thereof or supplements thereto.
COMMITMENT means an amount (subject to reduction or cancellation as herein
provided) equal to $80,000,000.
COMMITTED SUM means, for any Lender at any date of determination, the
amount stated beside each Lender's name on the most-recently amended
SCHEDULE 2.1 to the Agreement (which amount is subject to increase, reduction,
or cancellation in accordance with this Agreement).
COMMUNICATIONS means Xxxxxx Communications Corporation, an Oklahoma
corporation, which owns all of the issued and outstanding shares of capital
stock of Borrower.
COMMUNICATIONS ACT means, collectively, The Federal Communications Act of
1934, as amended from time to time, and the rules and regulations in effect at
any time thereunder.
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COMMUNICATIONS BOND DEBT means the 11 3/4% Senior Notes due 2007 issued by
Communications pursuant to that certain Indenture dated as of February 28, 0000,
xxxxxxx Xxxxxxxxxxxxxx xxx Xxxxxx Xxxxxx Trust Company of New York, in an
aggregate original principal amount of $160,000,000, and the documents and
agreements evidencing and establishing such Debt, as the same may be amended
from time to time in accordance with the terms thereof and hereof.
COMPANIES means, at any date of determination thereof, Borrower and each of
its Subsidiaries; and COMPANY means, on any date of determination, Borrower or
any of its Subsidiaries.
COMPLIANCE CERTIFICATE means a certificate signed by a Responsible Officer,
substantially in the form of EXHIBIT E-1.
CONSEQUENTIAL LOSS means any loss or expense which any Lender may
reasonably incur in respect of a Eurodollar Rate Borrowing as a consequence of
any event described in SECTION 4.5.
CONSOLIDATED OPERATING CASH FLOW means, on any date of determination for
Communications and its Subsidiaries, the "COMMUNICATIONS OPERATING CASH FLOW" as
such term is defined on the Closing Date in that certain Third Amended and
Restated Revolving Credit Agreement dated as of March 25, 1998, among Xxxxxx
Operating Company, as Borrower, CoreStates Bank, N.A., as Administrative Agent,
and the Lenders party thereto (the "DOC CREDIT AGREEMENT"), to the same extent
as if such term and related definitions incorporated therein were set forth
herein verbatim. If the DOC Credit Agreement shall cease to remain in effect
for any reason whatsoever during which any part of the Obligation remains
unpaid, the definition incorporated herein by reference shall nevertheless
continue in full force and effect herein.
CONSOLIDATED TOTAL DEBT means the Total Debt of Communications and its
Subsidiaries; PROVIDED, THAT Consolidated Total Debt (a) shall be reduced by
amounts on deposit in the Escrow Account to be used to pay any outstanding
principal under the Communications Bond Debt, if any, (b) shall include the
amount of all immediately available cash held by Communications and its
Restricted Subsidiaries in excess of $10,000,000, and (c) shall include the
principal amount of all Exchange Debentures, if any, issued in exchange for the
Preferred Stock.
CURRENT FINANCIALS means, at the time of any determination thereof, the
more recently delivered to Lenders of either (a) the Financial Statements for
the fiscal year ended December 31, 1996, and the nine-month period ended
September 30, 1997, calculated on a consolidated basis for the Companies; or
(b) the Financial Statements required to be delivered under SECTIONS 9.3(a) or
9.3(b), as the case may be, calculated on a consolidated basis for the
Companies.
DEBT means (without duplication), for any Person, the sum of the following:
(a) all liabilities, obligations, and indebtedness of such Person which in
accordance with GAAP should be classified upon such Person's balance sheet as
liabilities in respect of (i) money borrowed, including, without limitation, the
Principal Debt, (ii) obligations of such Person under Capital Leases, and
(iii) obligations of such Person issued or assumed as the deferred purchase
price of property, all conditional sale obligations, and obligations under any
title retention agreement (but excluding trade accounts payable arising in the
ordinary course of business); (b) all obligations of the type referred to in
CLAUSES (a)(i) through (a)(iii) preceding of other Persons for the payment of
which such Person is responsible or liable as obligor, guarantor, or otherwise;
(c) all obligations of the type referred to in CLAUSES (a)(i) through
CLAUSE (a)(iii) and CLAUSE (b) preceding of other Persons secured by any Lien
on any property or asset of such Person (whether or not such obligation is
assumed by such Person), the amount of such obligation being deemed to be the
lesser of the value of such property or assets or the amount of the obligation
so secured; (d) the face amount of
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all letters of credit and banker's acceptances issued for the account of such
Person, and without duplication, all drafts drawn and unpaid thereunder; and
(e) net payments under Financial Xxxxxx.
DEBT ISSUANCE means any Debt of Borrower or any Company for borrowed money
issued or incurred after the Closing Date, other than Permitted Debt.
DEBTOR RELIEF LAWS means the BANKRUPTCY CODE OF THE UNITED STATES OF
AMERICA and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization, fraudulent
transfer or conveyance, suspension of payments, or similar Laws from time to
time in effect affecting the Rights of creditors generally.
DEFAULT is defined in SECTION 10.
DEFAULT RATE means a per annum rate of interest equal from day to day to
the LESSER of (a) the sum of the Base Rate PLUS the Applicable Margin for Base
Rate Borrowings PLUS 2% AND (b) the Maximum Rate.
DETERMINING LENDERS means "DETERMINING LENDERS" as such term is defined in
the Intercreditor Agreement.
DISTRIBUTION for any Person means, with respect to any shares of any
capital stock or other equity securities issued by such Person, (a) the
retirement, redemption, purchase, or other acquisition for value of any such
securities, (b) the declaration or payment of any dividend on or with respect to
any such securities, and (c) any other payment by such Person with respect to
such securities.
DOCUMENTATION AGENT means Toronto Dominion (Texas), Inc. and its permitted
successors or assigns as "DOCUMENTATION AGENT" under this Agreement.
DOLLARS and the symbol $ means lawful money of the United States of
America.
ELIGIBLE ASSIGNEE means (a) a Lender; (b) an Affiliate of a Lender (so long
as such assignment is not made in conjunction with the sale of such Affiliate);
and (c) any other Person approved by Administrative Agent (which approval will
not be unreasonably withheld or delayed by Administrative Agent) and, unless a
Default or Potential Default has occurred and is continuing at the time any
assignment is effected in accordance with SECTION 13.13, Borrower, such approval
not to be unreasonably withheld or delayed by Borrower and such approval to be
deemed given by Borrower if no objection is received by the assigning Lender and
the Administrative Agent from Borrower within five Business Days after notice of
such proposed assignment has been provided by the assigning Lender to Borrower;
PROVIDED, HOWEVER, that neither Borrower nor any Affiliate of Borrower shall
qualify as an Eligible Assignee.
EMPLOYEE PLAN means an employee pension benefit plan covered by TITLE IV of
ERISA and established or maintained by Borrower or any ERISA Affiliate, but not
including any Multiemployer Plan.
ENVIRONMENTAL LAW means any applicable Law that relates to (a) the
condition or protection of air, groundwater, surface water, soil, or other
environmental media, (b) the environment, including natural resources or any
activity which affects the environment, (c) the regulation of any pollutants,
contaminants, wastes, substances, and Hazardous Substances, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. Section 9601 ET SEQ.) ("CERCLA"), the Clean Air Act (42
U.S.C. Section 7401 ET SEQ.), the Federal Water Pollution Control Act, as
amended by the
7
Clean Water Act (33 U.S.C. Section 1251 ET SEQ.), the Federal Insecticide,
Fungicide, and Rodenticide Act (7 U.S.C. Section 136 ET SEQ.), the Emergency
Planning and Community Right to Know Act of 1986 (42 U.S.C. Section 11001 ET
SEQ.), the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 ET
SEQ.), the National Environmental Policy Act of 1969 (42 U.S.C. Section 4321
ET SEQ.), the Oil Pollution Act (33 U.S.C. Section 2701 ET SEQ.), the
Resource Conservation and Recovery Act (42 U.S.C. Section 6901 ET SEQ.), the
Rivers and Harbors Act (33 U.S.C. Section 401 ET SEQ.), the Safe Drinking
Water Act (42 U.S.C. Section 201 and Section 300f ET SEQ.), the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act of
1976 and the Hazardous and Solid Waste Amendments of 1984 (42 U.S.C. Section
6901 ET SEQ.), the Toxic Substances Control Act (15 U.S.C. Section 2601 ET
SEQ.), and analogous state and local Laws, as any of the foregoing may have
been and may be amended or supplemented from time to time, and any analogous
future enacted or adopted Law, or (d) the Release or threatened Release of
Hazardous Substances.
EQUITY ISSUANCE means the issuance on and after the Closing Date by any
Company of any shares of any class of stock, warrants, or other equity
interests, other than present and future shares of stock, options, or warrants
issued to employees, directors, or consultants of the Companies, or stock issued
upon their exercise.
ERISA means the EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, as
amended, and the regulations and rulings thereunder.
ERISA AFFILIATE means any company or trade or business (whether or not
incorporated) which, for purposes of TITLE IV of ERISA, is a member of
Borrower's controlled group or which is under common control with Borrower
within the meaning of SECTION 414(b), (c), (m), or (o) of the Code.
ESCROW ACCOUNT means the account established pursuant to the Escrow
Agreement.
ESCROW AGREEMENT means the Escrow and Security Agreement dated February 28,
1997, between Communications and the trustee for the Communications Bond Debt
pursuant to which certain proceeds of the Communications Bond Debt are held in
escrow to secure the special repurchase and mandatory redemption requirements
(if applicable) of, and two years interest on, the Communications Bond Debt.
EURODOLLAR RATE means, for any Eurodollar Rate Borrowing for any Interest
Period therefor, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Dow Xxxxx Markets Page 3750 (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period. If for
any reason such rate is not available, the term "EURODOLLAR RATE" shall mean,
for any Eurodollar Rate Borrowing for any Interest Period therefor, the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Reuters Screen LIBO Page as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such Interest Period;
PROVIDED, HOWEVER, if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such rates
(rounded upwards, if necessary, to the nearest 1/100 of 1%).
EURODOLLAR RATE BORROWING means a Borrowing bearing interest at the SUM of
the Adjusted Eurodollar Rate PLUS the Applicable Margin for Eurodollar Rate
Borrowings.
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EXCHANGE DEBENTURES means any subordinated debentures issued in exchange
for all or any portion of the Preferred Stock, all as more particularly
described in that certain Offering Memorandum issued January 5, 1998, by
Communications.
EXECUTIVE MANAGEMENT TEAM means Xxxxxxx Xxxxxx, Xxxxx Xxxxxxxxxxx, and
Xxxxxx Xxxxx.
EXHIBIT means an exhibit to this Agreement unless otherwise specified.
FACILITY means the credit facility as described in and subject to the
limitations set forth in SECTION 2.1 hereof.
FCC means the Federal Communications Commission and any successor
regulatory body.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) determined (which determination shall
be conclusive and binding, absent manifest error) by Administrative Agent to be
equal to the weighted average of the rates on overnight Federal funds
transactions with member banks of the Federal Reserve System arranged by Federal
funds brokers on such day, as published by the Federal Reserve Bank of New York
on the Business Day next succeeding such day; PROVIDED THAT (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to the Administrative Agent (in its individual capacity) on
such day on such transactions as determined by the Administrative Agent (which
determination shall be conclusive and binding, absent manifest error).
FINANCIAL HEDGE means a swap, collar, floor, cap, or other contract which
is intended to reduce or eliminate the risk of fluctuations in interest rates,
which Financial Hedge is entered into by any Company in accordance with
SECTION 9.27.
FINANCIAL STATEMENTS means balance sheets, statements of operations,
statements of shareholders' investments, and statements of cash flows prepared
in accordance with GAAP, which statements of operations and statements of cash
flows shall be in comparative form to the corresponding period of the preceding
fiscal year, and which balance sheets and statements of shareholders'
investments shall be in comparative form to the prior fiscal year-end figures,
and which statements shall contain information with respect to capitalized
marketing costs.
FIXED CHARGE COVERAGE RATIO means, at any date of determination with
respect to the most recently ended Rolling Period, the ratio of: (a) the
Companies' Operating Cash Flow to (b) the SUM of (i) all mandatory prepayments
and regularly-scheduled principal payments with respect to Total Debt of the
Companies required to be paid, (ii) the amount paid for Capital Expenditures for
the Companies, (iii) cash Interest Expense of the Companies, (iv) cash Taxes of
the Companies, to the extent allocable to them pursuant to the Tax Sharing
Agreement, and (v) distributions and dividends paid in cash by Borrower,
including, without limitation, any amounts paid to fund interest or dividends on
the Preferred Stock or the Exchange Debentures.
FREE CASH FLOW means, on any date of determination with respect to the
fiscal year then most recently ended, Operating Cash Flow, LESS the SUM of,
without duplication, (a) Capital Expenditures made during such fiscal year,
(b) required payments of principal and interest on Debt made during such fiscal
year, (c) the aggregate Taxes actually paid in cash during such fiscal year, and
(d) $2,500,000.
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GAAP means generally accepted accounting principles of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
the Financial Accounting Standards Board which are applicable from time to time.
GOVERNMENTAL AUTHORITY means any (a) local, state, municipal, or federal
judicial, executive, or legislative instrumentality, (b) private arbitration
board or panel, or (c) central bank.
GUARANTOR means any Person, including, but not limited to, any Subsidiary
of Borrower, who undertakes to be liable for all or any part of the Obligation
by execution of a Guaranty or otherwise.
GUARANTY means (a) a Guaranty in substantially the form and upon the terms
of EXHIBIT C, executed and delivered by any Person pursuant to the requirements
of the Loan Papers; and (b) any amendments, modifications, supplements,
restatements, ratifications, or reaffirmations of any Guaranty made in
accordance with the Loan Papers.
HAZARDOUS SUBSTANCE means (a) any substance that is designated, defined, or
classified as a hazardous waste, hazardous material, pollutant, contaminant, or
toxic or hazardous substance under any Environmental Law, including without
limitation, any hazardous substance within the meaning of SECTION 101(14) of
CERCLA, (b) petroleum, oil, gasoline, natural gas, fuel oil, motor oil, waste
oil, diesel fuel, jet fuel, and other petroleum hydrocarbons, (c) regulated
asbestos and asbestos-containing materials in any form, (d) polychlorinated
biphenyls, or (e) urea formaldehyde foam.
INTERCREDITOR AGREEMENT means that certain Intercreditor Agreement,
substantially in the form of EXHIBIT I, dated of even date herewith, executed by
Borrower, the Collateral Agent, Administrative Agent on behalf of the Lenders,
and the Revolver/Acquisition Administrative Agent on behalf of the
Revolver/Acquisition Lenders, as the same may be amended, modified,
supplemented, or restated.
INTEREST EXPENSE means, for any period of calculation thereof, for any
Person, the aggregate amount of all interest (including commitment fees) on all
Debt of such Person, whether paid in cash or accrued as a liability and payable
in cash during such period (including, without limitation, imputed interest on
Capital Lease obligations); the amortization of any original issue discount on
any Debt; the interest portion of any deferred payment obligation; all
commissions, discounts, and other fees and charges owed with respect to letters
of credit or bankers' acceptance financing; net costs associated with Financial
Xxxxxx; the interest component of any Debt that is guaranteed or secured by such
Person), and all cash premiums or penalties for the repayment, redemption, or
repurchase of Debt.
INTEREST PERIOD is determined in accordance with SECTION 3.9.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
LENDERS means, on any date of determination, the financial institutions
named on SCHEDULE 2.1 (as the same may be amended from time to time by
Administrative Agent to reflect the assignments made in accordance with SECTION
13.13(c) of this Agreement), and subject to the terms and conditions of this
Agreement, and their respective successors and assigns.
LIEN means any lien, mortgage, security interest, pledge, assignment,
charge, title retention agreement, or encumbrance of any kind, and any other
Right of or arrangement with any creditor (other
10
than under or relating to subordination or other intercreditor arrangements)
to have its claim satisfied out of any property or assets, or the proceeds
therefrom, prior to the general creditors of the owner thereof.
LITIGATION means any action by or before any Governmental Authority.
LOAN PAPERS means (a) this Agreement, the Notes, and the Collateral
Documents, (b) all agreements, documents, or instruments in favor of Agents or
Lenders ever delivered pursuant to this Agreement or otherwise delivered in
connection with all or any part of the Obligation, (c) any Financial Hedge
between any Company or Guarantor and any Lender or Affiliate of any Lender, and
(d) any and all future renewals, extensions, restatements, reaffirmations, or
amendments of, or supplements to, all or any part of the foregoing.
MANAGING AGENTS means, collectively, CoBank, ACB; Barclays Bank PLC; and
PNC Bank, National Association.
MATERIAL ADVERSE EVENT means any set of one or more circumstances or events
which, individually or collectively, could reasonably be expected to result in
any (a) material impairment of the ability of any Company or any Guarantor to
perform any of its payment or other material obligations under the Loan Papers
or the ability of Administrative Agent or any Lender to enforce any such
obligations or any of their respective Rights under the Loan Papers,
(b) material and adverse effect on the business, properties, condition
(financial or otherwise) or results of operations of any Company or any
Guarantor, either singly or in the aggregate, or (c) Default or Potential
Default.
MAXIMUM AMOUNT and MAXIMUM RATE respectively mean, for each Lender, the
maximum non-usurious amount and the maximum non-usurious rate of interest which,
under applicable Law, such Lender is permitted to contract for, charge, take,
reserve, or receive on the Obligation.
MULTIEMPLOYER PLAN means a multiemployer plan as defined in SECTIONS 3(37)
or 4001(a)(3) of ERISA or SECTION 414(f) of the Code to which any Company or any
ERISA Affiliate is making, or has made, or is accruing, or has accrued, an
obligation to make contributions.
NATIONSBANK means NationsBank of Texas, N.A., in its individual capacity
as a Lender, and its successors and assigns.
NET CASH PROCEEDS means (a) with respect to any Significant Sale, cash
(freely convertible into Dollars) received, on or after the date of consummation
of such Significant Sale, by any Company from such Significant Sale, after
(i) deduction of Assumed Taxes, (ii) payment of all usual and customary
brokerage commissions and all other reasonable fees and expenses related to such
Significant Sale (including, without limitation, reasonable attorneys' fees and
closing costs incurred in connection with such Significant Sale),
(iii) deduction of appropriate amounts to be provided by Borrower or any Company
as a reserve, in accordance with GAAP, against any liabilities retained by any
Company after such Significant Sale, which liabilities are associated with the
asset or assets being sold, including, without limitation, pension and other
post-employment benefit liabilities and liabilities related to environmental
matters or against any indemnification obligations associated with such
Significant Sale, and (iv) deduction for the amount of any Debt (other than the
Obligation) secured by the respective asset or assets being sold, which Debt is
required to be repaid as a result of such Significant Sale; (b) with respect to
any incurrence of Debt, cash (freely convertible in to Dollars) received, on or
after the date of incurrence of such Debt, by any Company from the incurrence of
such Debt after (i) payment of all reasonable attorneys' fees and usual and
customary underwriting commissions, closing costs, and other reasonable expenses
associated with
11
such incurrence of Debt, (ii) deduction of all deposits, escrow amounts, or
other reserves required to be maintained by any Company in connection with
such Debt, and (iii) deductions for the amount of any other Debt (other than
the Obligation) which is required to be repaid concurrently with or otherwise
as a result of the incurrence of such Debt; and (c) with respect to any
Equity Issuance, cash (freely convertible into Dollars) (including any cash
received by way of deferred payment pursuant to a promissory note, or
otherwise, but only as and when received) received, on or after the date of
such Equity Issuance, by the Borrower from such Equity Issuance, net of usual
and customary transaction costs and expenses and Assumed Taxes.
NOTES means, at the time of any determination thereof, all outstanding and
unpaid Revolver/Term Notes.
NOTICE OF BORROWING is defined in SECTION 2.3(a).
NOTICE OF CONVERSION is defined in SECTION 3.10.
OBLIGATION means all present and future indebtedness, liabilities, and
obligations, and all renewals and extensions thereof, or any part thereof, now
or hereafter owed to Administrative Agent, any other Agent, any Lender, or any
Affiliate of any Lender by any Company or Guarantor arising from, by virtue of,
or pursuant to any Loan Paper, TOGETHER WITH all interest accruing thereon,
fees, costs, and expenses (including, without limitation, all attorneys' fees
and expenses incurred in the enforcement or collection thereof) payable under
the Loan Papers.
OPERATING CASH FLOW means, for any Person, as calculated at any date of
determination with respect to the most recently ended Rolling Period (unless
otherwise indicated), the SUM (without duplication and without giving effect
to any extraordinary losses or gains during such period) of (a) pre-tax
income or deficit during such period, PLUS (b) to the extent already deducted
in computing such pre-tax income, (i) Interest Expense during such period and
(ii) depreciation, amortization, and other non-cash expense items during such
period, LESS (c) interest and dividend income, LESS (d) reductions in
deferred taxes, LESS (e) other non-cash components of income. In determining
the Operating Cash Flow of the Companies, such amount shall be adjusted, as
required, with respect to Cellular Partnerships to take into account any
minority ownership when (and only when) intercompany Debt to Borrower from
such Cellular Partnership has been repaid in full; PROVIDED THAT, to the
extent that Borrower has extended financing to any Cellular Partnership or
any Cellular Partnership Obligor which is not 100% owned by Borrower and SO
LONG AS such financing has not been repaid in full, then 100% of the
Operating Cash Flow of such Cellular Partnership or such Cellular Partnership
Obligor for the applicable period of determination shall be included in
Operating Cash Flow. The provision for income taxes and reductions in
deferred taxes shall be adjusted in accordance with the Tax Sharing
Agreement. In determining Operating Cash Flow of the Companies, such amount
shall be calculated after giving effect to Acquisitions and divestitures of
Companies permitted by the Loan Papers during such period as if such
transactions had occurred on the first day of such period, regardless of
whether the effect is positive or negative. In the case of any Permitted
Acquisition during any period of calculation, Operating Cash Flow of the
Companies shall, for the purposes of the foregoing calculations, be adjusted
to give effect to such Permitted Acquisition, as if such Permitted
Acquisition occurred on the first day of such period, by increasing, if
positive, or decreasing, if negative, the Operating Cash Flow of the
Companies by the Operating Cash Flow of such newly-acquired business during
such period of calculation occurring prior to the date of such Permitted
Acquisition. In the case of any Company being sold, transferred, or
otherwise disposed of by any Company as permitted under the Loan Papers (a
"PERMITTED DISPOSITION") during any period of calculation, Operating Cash
Flow shall, for the purposes of the foregoing calculations, be adjusted to
give effect to such Permitted Disposition, as if such
12
Permitted Disposition occurred on the first day of such period, by
decreasing, if positive, or increasing, if negative, the Operating Cash Flow
of the Companies by the Operating Cash Flow of such newly-sold Companies
during such period prior to the date of the Permitted Disposition.
PARTICIPANT is defined in SECTION 13.13(e).
PARTICIPATION CERTIFICATE is defined in SECTION 9.20(j).
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereof, established pursuant to ERISA.
PCS SYSTEMS means the wireless cellular communication systems offering
"PERSONAL COMMUNICATION SERVICES" authorized under PART 24 of the FCC Rules (47
C.F.R. Section 24.1, ET SEQ).
PERMITTED ACQUISITION means:
(a) The Acquisitions of Texas 16 RSA, California 4 RSA, and, at
Borrower's option, Santa Xxxx MSA, SO LONG AS any such Acquisition from
Communications shall be made in compliance with the Communications Bond
Debt;
(b) Acquisitions by any Company of businesses which are engaged in
the domestic cellular industry, with respect to which each of the following
requirements shall have been satisfied:
(i) For so long as the Total Leverage Ratio (calculated after
giving pro forma effect to any proposed Acquisition) is greater than
8.50 to 1.00, the purchase price for such Acquisition must be less
than or equal to $75,000,000;
(ii) as of the closing of any Acquisition, the Acquisition has
been approved and recommended by the board of directors of the Person
to be acquired or from which such business is to be acquired;
(iii) not less than 30 Business Days prior to the closing of
any Acquisition, Borrower shall have delivered to Administrative Agent
a Permitted Acquisition Compliance Certificate, demonstrating pro
forma compliance with the terms and conditions of the Loan Papers,
after giving effect to the Acquisition, including (A) pro forma income
and balance sheet projections for the Companies (after giving effect
to the Acquisition), and (B) ten year cash flow projections for the
Acquisition demonstrating compliance with the Companies' applicable
financial covenants and debt amortization schedules;
(iv) prior to consummation of any Acquisition, Borrower shall
have satisfied the conditions precedent set forth in SECTION 7.2;
(v) as of the closing of any Acquisition, after giving effect to
such Acquisition, the acquiring party must be Solvent and the
Companies, on a consolidated basis, must be Solvent;
(vi) as of the closing of any Acquisition, no Default or
Potential Default shall exist or occur as a result of, and after
giving effect to, such Acquisition; and
13
(vii) as of the closing of any Acquisition, (A) if such
Acquisition is structured as a merger, Borrower, (or if such merger is
with any Subsidiary of Borrower, then such Subsidiary) must be the
surviving entity after giving effect to such merger; and (B) if such
Acquisition is structured as a stock/equity acquisition, the acquiring
Company shall own not less than a 75% interest in the entity being
acquired; or
(c) any other Acquisition for which the prior written consent of
Required Lenders has been obtained.
PERMITTED ACQUISITION COMPLIANCE CERTIFICATE means a certificate signed by
a Responsible Officer of Borrower, substantially in the form of EXHIBIT E-2.
PERMITTED ACQUISITION LOAN CLOSING CERTIFICATE means a certificate signed
by a Responsible Officer of Borrower, substantially in the form of EXHIBIT E-3.
PERMITTED DEBT means Debt permitted under SECTION 9.12 as described in such
Section.
PERMITTED LIENS means Liens permitted under SECTION 9.13 as described in
such Section.
PERSON means any individual, entity, or Governmental Authority.
POTENTIAL DEFAULT means the occurrence of any event or existence of any
circumstance which, with the giving of notice or lapse of time or both, would
become a Default.
PREFERRED STOCK means the Senior Exchangeable Preferred Stock issued by
Communications which is mandatorily redeemable in 2008, together with additional
Preferred Stock issued in lieu of dividends on such Preferred Stock, all as more
particularly described in that certain Offering Memorandum issued January 5,
1998 by Communications.
PRIME RATE means the per annum rate of interest established from time to
time by NationsBank of Texas, N.A., as its prime rate, which rate may not be the
lowest rate of interest charged by NationsBank of Texas, N.A. to its customers.
PRINCIPAL DEBT means, on any date of determination, the aggregate unpaid
principal balance of all Borrowings under the Facility.
PRO FORMA DEBT SERVICE means, on any date of determination, calculated for
the Companies on a consolidated basis, the SUM of (a) Pro Forma Interest Expense
determined as of such date of determination, PLUS (b) principal payments
scheduled to be made on Total Debt for the twelve months following the date of
determination and with respect to the Revolver/Acquisition Principal Debt, the
difference between the outstanding Revolver/Acquisition Principal Debt on any
date of determination, and the amount to which the Total Commitment is to be
reduced within twelve months.
PRO FORMA INTEREST EXPENSE means, on any date of determination with respect
to the most recently ended Rolling Period (the "SUBJECT PERIOD"), calculated for
the Companies on a consolidated basis, the SUM of the results of the following
calculation made separately with respect to each Borrowing and each other loan
or other evidence of Debt of any Company (each a "SUBJECT LOAN") for the
purposes hereof):
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{[A + B] /2} x C
where:
A = The aggregate outstanding principal Debt under the Subject
Loan at the beginning of the Subject Period.
B = The aggregate outstanding principal Debt under the Subject
Loan, at the end of the Subject Period, taking into account
all scheduled principal payments and any required commitment
reductions within such Subject Period.
C = With respect to the Subject Loan, the applicable interest
rate thereon determined as the rate in effect on the date of
determination.
PRO RATA or PRO RATA PART means on any date of determination for any
Lender, (a) at any time prior to the termination of the Commitment, the
proportion that such Lender's Committed Sum bears to the Commitment, or (b) at
any time on or after the termination of the Commitment, the proportion that the
Principal Debt owed to such Lender bears to the Principal Debt.
PUC means any state or local regulatory agency or governmental authority
that exercises jurisdiction over the rates or services or the ownership,
construction, or operation of network facilities or telecommunications systems
or over Persons who own, construct, or operate network facilities or
telecommunications systems.
REGISTER is defined in SECTION 13.13(c).
REGULATION D means Regulation D of the Board of Governors of the Federal
Reserve System, as amended.
REGULATION U means Regulation U of the Board of Governors of the Federal
Reserve System, as amended.
RELEASE means any spilling, leaking, pumping, pouring, emitting, emptying,
discharging, injecting, escaping, leaching, dumping, disposal, deposit,
dispersal, migrating, or other movement into the air, ground, or surface water,
or soil.
REPORTABLE EVENT shall have the meaning specified in SECTION 4043 of ERISA
or the regulations issued thereunder in connection with an Employee Plan,
excluding events for which the notice requirement is waived under applicable
PBGC regulations other than those events described in SECTIONS 2615.11, 2615.15
and 2615.19 of such regulations, including each such provision as it may
subsequently be renumbered.
REPRESENTATIVES means representatives, officers, directors, employees,
attorneys, and agents.
REQUIRED LENDERS means (a) on any date of determination prior to
termination of the Commitment, those Lenders holding 51% or more of the
Commitment, or (b) on any date of determination occurring after the Commitment
has terminated, those Lenders holding 51% or more of the outstanding Principal
Debt.
15
RESERVE REQUIREMENT means, at any time, the maximum rate at which reserves
(including, without limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under regulations issued from
time to time by the Board of Governors of the Federal Reserve System (or any
successor) by member banks of the Federal Reserve System against, in the case of
Eurodollar Rate Borrowings, "EUROCURRENCY LIABILITIES" (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Reserve
Requirement shall reflect any other reserves required to be maintained by such
member banks with respect to (a) any category of liabilities which includes
deposits by reference to which the Adjusted Eurodollar Rate is to be determined,
or (b) any category of extensions of credit or other assets which include
Eurodollar Rate Borrowings. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement.
RESPONSIBLE OFFICER means the chairman, president, chief executive officer,
chief financial officer, senior vice president, or treasurer of Borrower, or,
for all purposes under the Loan Papers, any other officer designated from time
to time by the Board of Directors of Borrower, which designated officer is
acceptable to Administrative Agent.
RESTRICTED PAYMENTS means: (a) redemptions, repurchases, dividends, and
distributions of any kind in respect of Borrower's or Communications' capital
stock (including without limitation any class of common or preferred shares);
(b) Distributions of any kind in respect of partnership interests of any Company
that is a Cellular Partnership or Cellular Partnership Obligor; and (c) payments
of principal and interest on, and any redemptions or repurchases of,
Subordinated Debt.
RESTRICTED SUBSIDIARY means, at any time of determination, all Subsidiaries
of Communications, OTHER THAN Unrestricted Subsidiaries.
REVOLVER/ACQUISITION ADMINISTRATIVE AGENT means NationsBank of Texas, N.A.,
in its capacity as "ADMINISTRATIVE AGENT" for the Revolver/Acquisition Lenders
pursuant to the Revolver/Acquisition Agreement and its permitted successors and
assigns.
REVOLVER/ACQUISITION AGENTS means the "AGENTS" as such term is defined in
the Revolver/Acquisition Agreement.
REVOLVER/ACQUISITION AGREEMENT means the Revolving Credit Agreement dated
of even date herewith among Borrower, the Revolver/Acquisition Lenders, and the
Revolver/Acquisition Administrative Agent (as the same may be amended, modified,
restated, and supplemented from time to time).
REVOLVER/ACQUISITION COMMITMENT means the "TOTAL COMMITMENT" as such term
is defined in the Revolver/Acquisition Agreement.
REVOLVER/ACQUISITION LENDERS means, on any date of determination, those
Lenders party to the Revolver/Acquisition Agreement.
REVOLVER/ACQUISITION LOAN PAPERS means the "LOAN PAPERS" as such term is
defined in the Revolver/Acquisition Agreement.
REVOLVER/ACQUISITION OBLIGATION means the "OBLIGATION" as such term is
defined in the Revolver/Acquisition Agreement.
16
REVOLVER/ACQUISITION PRINCIPAL DEBT means the "PRINCIPAL DEBT" as such term
is defined in the Revolver/Acquisition Agreement.
REVOLVER COMMITMENT has the meaning given to such term in the
Revolver/Acquisition Facility.
REVOLVER FACILITY means the "REVOLVER FACILITY" as such term is defined and
extended pursuant to the Revolver/Acquisition Agreement.
REVOLVER PRINCIPAL DEBT means the "REVOLVER PRINCIPAL DEBT" as such term is
defined in the Revolver/Acquisition Agreement.
REVOLVER/TERM NOTE means a promissory note in substantially the form of
EXHIBIT A, and all renewals and extensions of all or any part thereof.
RIGHTS means rights, remedies, powers, privileges, and benefits.
ROLLING PERIOD means, on any date of determination, the most recent four
fiscal quarters ended on March 31, June 30, September 30, or December 31 (as the
case may be).
SCHEDULE means, unless specified otherwise, a schedule attached to this
Agreement, as the same may be supplemented and modified from time to time in
accordance with the terms of the Loan Papers.
SENIOR LEVERAGE RATIO means, at any date of determination thereof, the
ratio of (a) Total Debt outstanding to (b) Operating Cash Flow, all calculated
for the Companies on a consolidated basis.
SIGNIFICANT SALE means any sale, lease, transfer, or other disposition of
any property or assets (tangible or intangible) by any Company to any other
Person (other than any sale, lease, transfer, or other disposition contemplated
by SECTIONS 9.23(a) through (e)) with respect to which the Net Cash Proceeds
realized by the Companies for such asset disposition (or when aggregated with
the Net Cash Proceeds from all such other asset dispositions occurring in the
same calendar year) equals or exceeds $1,000,000.
SOLVENT means, as to a Person, that (a) the aggregate fair market value of
such Person's assets exceeds its liabilities (whether contingent, subordinated,
unmatured, unliquidated, or otherwise), (b) such Person has sufficient cash flow
to enable it to pay its Debts as they mature, and (c) such Person does not have
unreasonably small capital to conduct such Person's businesses.
SUBORDINATED DEBT means any Debt of any Company subordinated to the
Obligation, in form and substance satisfactory to Administrative Agent.
SUBSIDIARY of any Person means (a) any entity of which an aggregate of
more than 50% (in number of votes) of the stock is owned of record or
beneficially, directly or indirectly, by such Person, or (b) any partnership
(limited or general) of which such Person shall at any time be the general
partner or own fifty percent (50%) or more of the issued and outstanding
partnership interests.
SYNDICATION AGENT means, collectively, First Union National Bank and its
permitted successors or assigns as "SYNDICATION AGENT" under this Agreement.
17
SYSTEM means individually, and SYSTEMS means collectively, the wireless
cellular communication systems and personal communication systems, now or
hereafter owned, operated, or managed by the Companies.
TAX SHARING AGREEMENT means that certain consolidated income tax payment
agreement dated February 28, 1997, entered into between Communications and its
Subsidiaries.
TAXES means, for any Person, taxes, assessments, or other governmental
charges or levies imposed upon such Person, its income, or any of its
properties, franchises, or assets.
TERM CONVERSION DATE means the date upon which the Principal Debt is
converted to a term loan in accordance with SECTION 2.5.
TERM CONVERSION REQUEST is defined in SECTION 2.5(a).
TERM LOAN MATURITY DATE is defined in SECTION 2.5.
TERM LOANS means loans made by the Lenders pursuant to SECTION 2.5.
TERMINATION DATE means the EARLIER of (a) March 24, 1999 (or such later
date to which the Commitment is extended in accordance with SECTION 2.3) and
(b) the effective date of any other termination or cancellation of Lenders'
commitments to lend under, and in accordance with, this Agreement.
TOTAL DEBT means (without duplication), as of any date of determination
with respect to any Person, the sum of all obligations for borrowed money, all
payments required under non-compete agreements, capital lease obligations,
amounts required under installment sales purchases, all debt or other financial
obligations of others guaranteed by such Person, and any amounts for which such
Person is contingently liable to provide, as equity or debt, advances to other
Persons; PROVIDED, HOWEVER, that in any calculation of Total Debt of Borrower,
any Subordinated Debt owed by Borrower to Communications shall be excluded from
the calculation of Total Debt for Borrower.
TOTAL LEVERAGE RATIO means, at any date of determination thereof, the ratio
of (a) Consolidated Total Debt to (b) Consolidated Operating Cash Flow.
TRIGGERING EVENT means the occurrence of any Default, other than a Default
resulting from the breach of any representation or warranty set forth in
SECTION 8; PROVIDED, HOWEVER, that any Default which results from Borrower's
failure to comply with the financial covenants in SECTION 9.30, and which
restricts dividends or distributions from Borrower to Communications, shall only
constitute a TRIGGERING EVENT to the extent of pro forma non-compliance with the
financial covenants on the terms as specified in SECTION 9.30 on the Closing
Date, notwithstanding any future amendments or modifications of such provisions.
TYPE means any type of Borrowing determined with respect to the interest
option applicable thereto.
UNRESTRICTED SUBSIDIARY means, with respect to Communications, at any time
of determination thereof, (a) Borrower and its Subsidiaries; (b) Xxxxxx Wireline
Company and its Subsidiaries; (c) any Subsidiary designated from time to time by
the Board of Directors of Communications as an "UNRESTRICTED SUBSIDIARY"; and
(d) any Subsidiary of an Unrestricted Subsidiary; PROVIDED, THAT the Board of
Directors may make such designation of an "UNRESTRICTED SUBSIDIARY" only if (i)
such Unrestricted Subsidiary does
18
not own any capital stock of Communications, Borrower, or a Restricted
Subsidiary and does not hold a Lien on any assets of Communications, Borrower,
or any Restricted Subsidiary; (ii) any guaranties or credit support issued by
Communications or any Restricted Subsidiary with respect to obligations of the
Unrestricted Subsidiary shall be included in calculations of Consolidated
Total Debt, on and after the date such Subsidiary is designated as an
"UNRESTRICTED SUBSIDIARY"; (iii) any Debt owed by Communications or any
Restricted Subsidiary to the Unrestricted Subsidiary shall be included in the
calculation of Consolidated Total Debt, on and after the date such Subsidiary
is designated as an "UNRESTRICTED SUBSIDIARY"; and (iv) after giving pro forma
effect to such designation, no Default or Potential Default exists or arises
as a result thereof.
VOTING STOCK means securities (as such term is defined in SECTION 2(1) of
the Securities Act of 1933, as amended) of any class or classes, the holders of
which are ordinarily, in the absence of contingencies, entitled to elect a
majority of the corporate directors (or Persons performing similar functions).
WHOLLY-OWNED when used in connection with any Subsidiary shall mean a
Subsidiary of which all of the issued and outstanding shares of stock (EXCEPT
shares required as directors' qualifying shares) shall be owned by Borrower or
one or more of its Wholly-owned Subsidiaries.
1.2 NUMBER AND GENDER OF WORDS; OTHER REFERENCES. Unless otherwise
specified in the Loan Papers, (a) where appropriate, the singular includes the
plural and VICE VERSA, and words of any gender include each other gender, (b)
heading and caption references may not be construed in interpreting provisions,
(c) monetary references are to currency of the United States of America, (d)
section, paragraph, annex, schedule, exhibit, and similar references are to the
particular Loan Paper in which they are used, (e) references to "TELECOPY,"
"FACSIMILE," "FAX," or similar terms are to facsimile or telecopy transmissions,
(f) references to "INCLUDING" mean including without limiting the generality of
any description preceding that word, (g) the rule of construction that
references to general items that follow references to specific items are limited
to the same type or character of those specific items is not applicable in the
Loan Papers, (h) references to any Person include that Person's heirs, personal
representatives, successors, trustees, receivers, and permitted assigns, (i)
references to any Law include every amendment or supplement to it, rule and
regulation adopted under it, and successor or replacement for it, and (j)
references to any Loan Paper or other document include every renewal and
extension of it, amendment and supplement to it, and replacement or substitution
for it.
1.3 ACCOUNTING PRINCIPLES. All accounting and financial terms used in the
Loan Papers and the compliance with each financial covenant therein shall be
determined in accordance with GAAP, and, all accounting principles shall be
applied on a consistent basis so that the accounting principles in a current
period are comparable in all material respects to those applied during the
preceding comparable period. If Borrower or any Lender determines that a change
in GAAP from that in effect on the date hereof has altered the treatment of
certain financial data to its detriment under this Agreement, such party may, by
written notice to the others and Administrative Agent not later than ten (10)
days after the effective date of such change in GAAP, request renegotiation of
the financial covenants affected by such change. If the Borrower and Required
Lenders have not agreed on revised covenants within thirty (30) days after
delivery of such notice, then, for purposes of this Agreement, GAAP will mean
generally accepted accounting principles on the date just prior to the date on
which the change that gave rise to the renegotiation occurred.
SECTION 2 BORROWING PROVISIONS.
2.1 COMMITMENTS. Subject to and in reliance upon the terms, conditions,
representations, and warranties in the Loan Papers, each Lender severally and
not jointly agrees to lend to Borrower such
19
Lender's Pro Rata Part of one or more Borrowings not to exceed such Lender's
Committed Sum, which, may be repaid and reborrowed from time to time in
accordance with the terms and provisions of the Loan Papers; PROVIDED THAT,
(a) each such Borrowing must occur on a Business Day and no later than the
Business Day immediately preceding the Termination Date; (b) each such
Borrowing shall be in an amount not less than $5,000,000 or a greater integral
multiple of $1,000,000; and (c) on any date of determination, the Principal
Debt shall never exceed the Commitment.
2.2 TERMINATION OF COMMITMENTS.
(a) VOLUNTARY COMMITMENT REDUCTION. Without premium or penalty, and
upon giving not less than ten (10) Business Days prior written and
irrevocable notice to Administrative Agent, Borrower may terminate in whole
or in part the unused portion of the Commitment; PROVIDED THAT: (i) each
partial termination shall be in an amount of not less than $5,000,000 or a
greater integral multiple of $1,000,000; (ii) the amount of the Commitment
may not be reduced below the Principal Debt; and (iii) each reduction shall
be allocated Pro Rata among the Lenders in accordance with their respective
Pro Rata Parts. Promptly after receipt of such notice of termination or
reduction, Administrative Agent shall notify each Lender of the proposed
cancellation or reduction. Such termination or partial reduction of the
Commitment shall be effective on the Business Day specified in Borrower's
notice (which date must be at least ten Business Days after Borrower's
delivery of such notice). In the event that the Total Commitment is
reduced to zero at a time when there shall be no Principal Debt, this
Agreement shall be terminated to the extent specified in SECTION 13.15, and
all commitment fees and other fees then earned and unpaid hereunder and all
other amounts of the Obligation then due and owing shall be immediately due
and payable, without notice or demand by Administrative Agent or any
Lender.
(b) MANDATORY COMMITMENT REDUCTIONS/PREPAYMENTS. Until such time as
the Principal Debt has been repaid in full, the Commitment (or, on and
after the Term Conversion Date, the Principal Debt) and the
Revolver/Acquisition Commitment shall be permanently reduced or prepaid, as
the case may be, in the amounts and upon the occurrence of the following
events:
(i) Concurrently with any Debt Issuance by Borrower, the
Commitment (or, on and after the Term Conversion Date, the Principal
Debt) and the Revolver/Acquisition Commitment shall be permanently
reduced by an amount equal to 100% of the Net Cash Proceeds realized
by Borrower from such Debt Issuance; or
(ii) Concurrently with the consummation of any Significant Sale
by any Company (which Significant Sale must be otherwise permitted
under the Loan Papers or shall have been consented to by Required
Lenders), the Commitment (or, on and after the Term Conversion Date,
the Principal Debt) and the Revolver/Acquisition Commitment shall be
permanently reduced by an amount equal to 100% of the Net Cash
Proceeds realized by Borrower or any Company from such Significant
Sale.
On each reduction date, Borrower shall also make a mandatory prepayment of
the Principal Debt, if required pursuant to SECTIONS 3.2(c) AND 3.2(d),
TOGETHER WITH (x) all accrued and unpaid interest on the principal amount
so prepaid and (y) any Consequential Loss arising as a result thereof.
Each commitment reduction (or, on and after the Term Conversion date, each
mandatory prepayment) under this SECTION 2.2(b) shall be applied to the
Commitment (or, on and after the Term Conversion Date, the Principal Debt)
and the Revolver/Acquisition Commitment in the following order: (A) ratably
to the Commitment (or, on and after the Term Conversion Date, the
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Principal Debt) and the Revolver Commitment (for purposes of this CLAUSE
(A), "RATABLY," on any date of determination, shall mean the proportion
that either the Commitment [or, on and after the Term Conversion Date,
the Principal Debt] or the Revolver Commitment, as the case may be, bears
to the sum of the Commitment [or, on and after the Term Conversion Date,
the Principal Debt] and the Revolver Commitment); and (B) to the
Acquisition Commitment to be applied in accordance with the Revolver/
Acquisition Agreement. All commitment reductions for the Facility
hereunder, the Revolver Facility, and the Acquisition Facility shall be
applied to each Lender's commitment thereunder ratably for each such
facility and shall be applied to the regularly-scheduled commitment
reductions required under any such Facility in inverse order of maturity.
2.3 OPTIONAL RENEWAL OF FACILITY.
(a) OPTIONAL RENEWAL PROCEDURES. Borrower may request that the
Termination Date be extended for all or a portion of the Commitment to a
date which is no later than the 364th day after the then-current
Termination Date; PROVIDED THAT, (i) any such extension request shall be
made in writing (an "EXTENSION REQUEST") by Borrower and delivered to
Administrative Agent no more than 30 days prior to (but no later than
15 days prior to) the then-current Termination Date; (ii) no more than one
such Extension Request may be made by Borrower; and (iii) no Extension
Request may be made after the Term Conversion Date or which would have the
effect of extending the Termination Date to a date later than the last day
of the second 364-day period following the Closing Date. Promptly upon
receipt of an Extension Request, Administrative Agent shall notify Lenders
of such request.
(i) LENDERS' RESPONSE TO EXTENSION REQUEST. The Lenders may, at
their option, accept or reject such Extension Request by giving
written notice to Administrative Agent delivered no later than 10 days
prior to the then-effective Termination Date (the "RESPONSE DATE").
If any Lender shall fail to give such notice to Administrative Agent
by the Response Date, such Lender shall be deemed to have rejected the
requested extension. If the Extension Request is not consented to by
Lenders holding at least 66 2/3% of the Commitment by the Response
Date, the Extension Request will be rejected, and the Facility will
terminate on the then-current Termination Date. If the Lenders
holding at least 66 2/3% of the Commitment consent to the Extension
Request by the Response Date, the Termination Date for those Lenders
consenting to the extension (for purposes of this SECTION 2.3(a), the
"ACCEPTING LENDERS") shall be automatically extended to the date which
is the 364th day after the then-current Termination Date; PROVIDED
THAT, (A) the Termination Date may never be extended on any one date
for a period greater than 364 days; and (B) no more than one such
364-day extension of the Termination Date may be granted by Lenders.
(ii) ADDITIONAL PROCEDURES TO EXTEND THE REJECTED AMOUNT. If the
Extension Request is consented to by Lenders holding not less than
66 2/3% of the Commitment, but fewer than all Lenders (any Lender not
consenting to the Extension Request being referred to in this SECTION
2.3(a) as a "REJECTING LENDER"), then Administrative Agent shall,
within 48 hours of making such determination, notify the Accepting
Lenders and Borrower of the aggregate Committed Sums held by the
Rejecting Lenders (as used in this SECTION 2.3(a), the "REJECTED
AMOUNT"). Each Accepting Lender shall have the Right, but not the
obligation, to elect to increase its respective Committed Sum by an
amount not to exceed the Rejected Amount, which election shall be made
by notice from each Accepting Lender to the Administrative Agent given
not later than five days after the date notified by
21
Administrative Agent, specifying the amount of such proposed
increase in such Accepting Lender's Committed Sum. If the aggregate
amount of the proposed increases in the Committed Sums of all
Accepting Lenders making such an election does not equal or exceed
the Rejected Amount, then Borrower shall have the right to add one
or more financial institutions (which are not Rejecting Lenders and
which are Eligible Assignees) as Lenders (as used in this SECTION
2.3(a), a "PURCHASING LENDER") to replace such Rejecting Lenders,
which Purchasing Lenders shall have aggregate Committed Sums not
greater than those of the Rejecting Lenders (less any increases in
the Committed Sums of Accepting Lenders, as described in the
following CLAUSE (iii)). The transfer of Committed Sums and
outstanding Borrowings from Rejecting Lenders to Purchasing Lenders
or Accepting Lenders shall take place on the effective date of, and
pursuant to the execution, delivery, and acceptance of, Assignment
and Acceptance Agreements in accordance with the procedures set
forth in SECTION 13.13.
(iii) ADJUSTMENTS TO, AND TERMINATIONS OF, COMMITMENTS.
(A) If less than 100% of the Commitment is extended
(whether by virtue of Borrower's failure to request an extension
of the full Commitment or by virtue of any Lender not consenting
to any Extension Request), then the Commitment shall
automatically be reduced on the Termination Date on which the
applicable approved extension is effective by an amount equal to
(as the case may be) (i) the portion of the Commitment not
requested to be extended by Borrower in its Extension Request or
(ii) the amount of the Rejected Amount (to the extent not
replaced by Accepting Lenders or Purchasing Lenders pursuant to
the procedures set forth in the foregoing SECTION 2.3(a)(ii)).
Each Rejecting Lender shall have no further obligation or
Committed Sum following the Termination Date on which the
applicable approved extension is effective, other than any
obligation accruing prior to such date as provided herein.
(B) If the aggregate amount of the proposed increases in
the Committed Sums of all Accepting Lenders making an election to
increase their respective Committed Sums is in excess of the
Rejected Amount, then (i) the Rejected Amount shall be allocated
pro rata among such Accepting Lenders based on the respective
amounts of the proposed increases to Committed Sums elected by
such Accepting Lenders; and (ii) the respective Committed Sums of
each such Accepting Lender shall be increased by the respective
amount allocated pursuant to CLAUSE (i) of this
SECTION 2.3(a)(iii)(b), such that, after giving effect to the
approved extensions and all such terminations and increases, no
reduction will occur in the aggregate amount of the Commitment.
(C) If the aggregate amount of the proposed increases to
the Committed Sums of all Accepting Lenders making such an
election to so increase their respective Committed Sums equals
the Rejected Amount, then the respective Committed Sums of such
Accepting Lenders shall be increased by the respective amounts of
their proposed increases, such that, after giving effect to the
approved extensions and all such terminations and increases, no
reduction will occur in the aggregate amount of the Commitment.
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(D) If the aggregate amount of the proposed increases to
the Committed Sums of all Accepting Lenders making such an
election is less than the Rejected Amount, then (i) the
respective Committed Sums of each such Accepting Lender shall be
increased by the respective amount of its proposed increase; and
(ii) the amount of the Commitment shall be reduced by the amount
of the Rejected Amount (to the extent not replaced by the
Accepting Lenders or the Purchasing Lenders, if any).
(b) NO OBLIGATION TO RENEW. Borrower acknowledges that (i) neither
Administrative Agent nor any Lender has made any representations to
Borrower regarding its intent to agree to any extensions set forth in this
Section, (ii) neither Administrative Agent nor any Lender shall have any
obligation to extend the Commitment (or any portion thereof), and (iii)
Administrative Agent's and Lenders' agreement to one extension shall not
commit Administrative Agent or the Lenders to any additional extensions.
2.4 BORROWING PROCEDURE. The following procedures apply to Borrowings:
(a) Each Borrowing shall be made on Borrower's notice (a "NOTICE OF
BORROWING," substantially in the form of EXHIBIT B-1) to Administrative
Agent requesting that Lenders fund a Borrowing on a certain date (the
"BORROWING DATE"), which notice (i) shall be irrevocable and binding on
Borrower, (ii) shall specify the Borrowing Date, amount, Type, and (for a
Borrowing comprised of Eurodollar Rate Borrowings) Interest Period, and
(iii) must be received by Administrative Agent no later than 10:00 a.m.
Dallas, Texas time on the third Business Day preceding the Borrowing Date
for any Eurodollar Rate Borrowing or on the Business Day immediately
preceding the Borrowing Date for any Base Rate Borrowing. Administrative
Agent shall timely notify each Lender with respect to each Notice of
Borrowing.
(b) Each Lender shall remit its Pro Rata Part for the relevant
Facility of each requested Borrowing to Administrative Agent's principal
office in Dallas, in funds which are or will be available for immediate use
by Administrative Agent by 1:00 p.m. Dallas time on the Borrowing Date
therefor. Subject to receipt of such funds, Administrative Agent shall
(unless to its actual knowledge any of the conditions precedent therefor
have not been satisfied by Borrower or waived by Required Lenders) make
such funds available to Borrower by causing such funds to be deposited to
Borrower's account as designated to Administrative Agent by Borrower.
Notwithstanding the foregoing, unless Administrative Agent shall have been
notified by a Lender prior to a Borrowing Date that such Lender does not
intend to make available to Administrative Agent such Lender's Pro Rata
Part of the applicable Borrowing, Administrative Agent may assume that such
Lender has made such proceeds available to Administrative Agent on such
date, as required herein, and Administrative Agent may (unless to its
actual knowledge any of the conditions precedent therefor have not been
satisfied by Borrower or waived by Required Lenders), in reliance upon such
assumption (but shall not be required to), make available to Borrower a
corresponding amount in accordance with the foregoing terms, but, if such
corresponding amount is not in fact made available to Administrative Agent
by such Lender on such Borrowing Date, Administrative Agent shall be
entitled to recover such corresponding amount on demand (i) from such
Lender, together with interest at the Federal Funds Rate during the period
commencing on the date such corresponding amount was made available to
Borrower and ending on (but excluding) the date Administrative Agent
recovers such corresponding amount from such Lender, or (ii) if such Lender
fails to pay such corresponding amount forthwith upon such demand, then
from Borrower, TOGETHER WITH interest at a rate per annum equal to the
applicable rate for such
23
Borrowing during the period commencing on such Borrowing Date and ending
on (but excluding) the date Administrative Agent recovers such
corresponding amount from Borrower. No Lender shall be responsible for
the failure of any other Lender to make its Pro Rata Part of any
Borrowing.
2.5 CONVERSION OF FACILITY TO TERM LOANS. Borrower shall have the option
to convert the Principal Debt outstanding on the Termination Date to a Term Loan
maturing no LATER than June 30, 2006 (the "TERM LOAN MATURITY DATE"), subject to
and on the terms and conditions set forth below:
(a) No sooner than 30 days (and not later than 15 days) preceding the
Termination Date, Borrower shall deliver to Administrative Agent a Term
Conversion Request in substantially the form of EXHIBIT B-2, which, among
other things, shall (i) specify Borrower's election to make such conversion
to a Term Loan, and (ii) specify the Type of Borrowing or Borrowings to
which the Principal Debt shall be converted and the Interest Periods
therefor (if applicable) on the Term Conversion Date; and
(b) No Default or Potential Default shall exist on either the date
such Term Conversion Request is delivered or on the Term Conversion Date;
and no Default or Potential Default shall exist after giving effect to the
Term Loan conversion.
SECTION 3 TERMS OF PAYMENT.
3.1 LOAN ACCOUNTS, NOTES, AND PAYMENTS.
(a) The Principal Debt owed to each Lender shall be evidenced by the
Notes, one payable to each Lender in the maximum stated principal amount of
its Committed Sum as of the Closing Date.
(b) Each payment or prepayment on the Obligation is due and must be
paid at Administrative Agent's principal office in Dallas in funds which
are or will be available for immediate use by Administrative Agent by
12:00 noon Dallas, Texas time on the day due. Payments made after
12:00 noon, Dallas, Texas, time shall be deemed made on the Business Day
next following. Administrative Agent shall pay to each Lender any payment
or prepayment to which such Lender is entitled hereunder on the same day
Administrative Agent shall have received the same from Borrower; PROVIDED
such payment or prepayment is received by Administrative Agent prior to
12:00 noon Dallas, Texas time, and otherwise before 12:00 noon Dallas time
on the Business Day next following. If and to the extent Administrative
Agent shall not make such payments to Lenders when due as set forth in the
preceding sentence, such unpaid amounts shall accrue interest, payable by
Administrative Agent, at the Federal Funds Rate from the due date until
(but not including) the date on which Administrative Agent makes such
payments to Lenders.
3.2 INTEREST AND PRINCIPAL PAYMENTS.
(a) Interest on each Eurodollar Rate Borrowing shall be due and
payable as it accrues on the last day of its respective Interest Period and
on the Termination Date or the Term Loan Maturity Date, as applicable;
PROVIDED THAT, (i) with respect to Eurodollar Rate Borrowings having an
Interest Period in excess of three (3) months, Borrower shall pay interest
quarterly in arrears on the last Business Day of each March, June,
September, and December, commencing on the first such date after the date
on which such Interest Period commences and continuing on the last
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Business Day of each March, June, September, and December thereafter and
on the expiration of each Interest Period. Interest on each Base Rate
Borrowing shall be due and payable as it accrues on each March 31, June
30, September 30, and December 31, and on the Termination Date or the
Term Loan Maturity Date, as applicable.
(b) In the event the Principal Debt is converted to a Term Loan, the
Principal Debt outstanding on the Term Conversion Date (the "CONVERTED
PRINCIPAL DEBT") shall be repaid in 25 quarterly installments, payable on
each of the "PAYMENT DATES" listed below in an amount equal to the PRODUCT
of the (i) "PAYMENT PERCENTAGE" listed below which corresponds with the
applicable Payment Date as specified below TIMES the Converted Principal
Debt:
Payment Date Payment Percentage
------------ ------------------
June 30, 2000 3.333%
September 30, 2000 3.333%
December 31, 2000 3.333%
March 31, 2001 3.750%
June 30, 2001 3.750%
September 30, 2001 3.750%
December 31, 2001 3.750%
March 31, 2002 3.750%
June 30, 2002 3.750%
September 30, 2002 3.750%
December 31, 2002 3.750%
March 31, 2003 4.375%
June 30, 2003 4.375%
September 30, 2003 4.375%
December 31, 2003 4.375%
March 31, 2004 4.375%
June 30, 2004 4.375%
September 30, 2004 4.375%
December 31, 2004 4.375%
March 31, 2005 3.750%
June 30, 2005 3.750%
September 30, 2005 3.750%
December 31, 2005 3.750%
March 31, 2006 5.000%
June 30, 2006 5.000%
(c) On any date of determination if the Principal Debt exceeds the
Commitment, then Borrower shall make a mandatory prepayment of the
Principal Debt, in at least the amount of such excess, TOGETHER WITH (x)
all accrued and unpaid interest on the principal amount so prepaid and (y)
any Consequential Loss arising as a result thereof. All mandatory
prepayments hereunder shall be allocated Pro Rata among the Lenders
hereunder and shall be applied to the regularly-scheduled principal
installments under SECTION 3.2(b) in inverse order of maturity.
(d) On and after the Term Conversion Date, Borrower shall make
mandatory prepayments of the Principal Debt upon the occurrence of any
events described in SECTION 2.2(b)(i)
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and (ii), in the amounts specified as allocated between the Principal
Debt and the Revolver/Acquisition Commitment as specified in such SECTION
2.2(b). All mandatory prepayments made pursuant to SECTIONS 2.2(b)(i)
and (ii) or 3.2(e) shall be allocated Pro Rata among Lenders and shall be
applied to the regularly-scheduled principal installments under SECTION
3.2(b) in inverse order of maturity.
(e) After giving Administrative Agent advance written notice of the
intent to prepay, Borrower may voluntarily prepay all or any part of the
Principal Debt from time to time and at any time, in whole or in part,
without premium or penalty; PROVIDED THAT: (i) such notice must be received
by Administrative Agent by 12:00 noon Dallas, Texas time on (A) the third
Business Day preceding the date of prepayment of a Eurodollar Rate
Borrowing, and (B) the Business Day of a prepayment of a Base Rate
Borrowing; (ii) each such partial prepayment must be in a minimum amount of
at least $5,000,000 or a greater integral multiple of $1,000,000 thereof
(if a Eurodollar Rate Borrowing or a Base Rate Borrowing); (iii) all
accrued interest on any Eurodollar Rate Borrowing being prepaid must also
be paid in full, to the date of such prepayment; and (iv) Borrower shall
pay any related Consequential Loss within ten (10) days after demand
therefor. Each notice of prepayment shall specify the prepayment date, the
Facility hereunder being prepaid, and the Type of Borrowing(s) and
amount(s) of such Borrowing(s) to be prepaid and shall constitute a binding
obligation of Borrower to make a prepayment on the date stated therein.
3.3 INTEREST OPTIONS. Except where specifically otherwise provided,
Borrowings shall bear interest at a rate per annum equal to the LESSER OF (a) as
to the respective Type of Borrowing (as designated by Borrower in accordance
with this Agreement), the Base Rate plus the Applicable Margin for Base Rate
Borrowings or the Adjusted Eurodollar Rate plus the Applicable Margin for
Eurodollar Rate Borrowings, AND (b) the Maximum Rate. Each change in the Base
Rate or the Maximum Rate, subject to the terms of this Agreement, will become
effective, without notice to Borrower or any other Person, upon the effective
date of such change.
3.4 QUOTATION OF RATES. It is hereby acknowledged that a Responsible
Officer or other appropriately designated officer of Borrower may call
Administrative Agent on or before the date on which a Notice of Borrowing is to
be delivered by Borrower in order to receive an indication of the rates then in
effect, but such indicated rates shall neither be binding upon Administrative
Agent or Lenders nor affect the rate of interest which thereafter is actually in
effect when the Notice of Borrowing is given.
3.5 DEFAULT RATE. At the option of Required Lenders and to the extent
permitted by Law, all past-due Principal Debt and accrued interest thereon shall
bear interest from maturity (stated or by acceleration) at the Default Rate
until paid, regardless whether such payment is made before or after entry of a
judgment.
3.6 INTEREST RECAPTURE. If the designated rate applicable to any
Borrowing exceeds the Maximum Rate, the rate of interest on such Borrowing shall
be limited to the Maximum Rate, but any subsequent reductions in such designated
rate shall not reduce the rate of interest thereon below the Maximum Rate until
the total amount of interest accrued thereon equals the amount of interest which
would have accrued thereon if such designated rate had at all times been in
effect. In the event that at maturity (stated or by acceleration), or at final
payment of the Principal Debt, the total amount of interest paid or accrued is
less than the amount of interest which would have accrued if such designated
rates had at all times been in effect, then, at such time and to the extent
permitted by Law, Borrower shall pay an amount equal to the difference between
(a) the LESSER OF the amount of interest which would have accrued if such
designated rates had at all times been in effect AND the amount of interest
which would have accrued if the
26
Maximum Rate had at all times been in effect, and (b) the amount of interest
actually paid or accrued on the Principal Debt.
3.7 INTEREST CALCULATIONS.
(a) All payments of interest shall be calculated on the basis of
actual number of days (including the first day but excluding the last day)
elapsed but computed as if each calendar year consisted of 360 days in the
case of a Eurodollar Rate Borrowing (unless such calculation would result
in the interest on the Borrowings exceeding the Maximum Rate, in which
event such interest shall be calculated on the basis of a year of 365 or
366 days, as the case may be), and 365 or 366 days, as the case may be, in
the case of a Base Rate Borrowing. All interest rate determinations and
calculations by Administrative Agent shall be conclusive and binding absent
manifest error.
(b) The provisions of this Agreement relating to the calculation of
the Base Rate and the Adjusted Eurodollar Rate are included only for the
purpose of determining the rate of interest or other amounts to be paid
hereunder that are based upon such rate.
3.8 MAXIMUM RATE. Regardless of any provision contained in any Loan
Paper, neither Administrative Agent nor any Lender shall ever be entitled to
contract for, charge, take, reserve, receive, or apply, as interest on the
Obligation, or any part thereof, any amount in excess of the Maximum Rate, and,
if Lenders ever do so, then such excess shall be deemed a partial prepayment of
principal and treated hereunder as such and any remaining excess shall be
refunded to Borrower. In determining if the interest paid or payable exceeds
the Maximum Rate, Borrower and Lenders shall, to the maximum extent permitted
under applicable Law, (a) treat all Borrowings as but a single extension of
credit (and Lenders and Borrower agree that such is the case and that provision
herein for multiple Borrowings is for convenience only), (b) characterize any
nonprincipal payment as an expense, fee, or premium rather than as interest,
(c) exclude voluntary prepayments and the effects thereof, and (d) amortize,
prorate, allocate, and spread the total amount of interest throughout the entire
contemplated term of the Obligation; PROVIDED THAT, if the Obligation is paid
and performed in full prior to the end of the full contemplated term thereof,
and if the interest received for the actual period of existence thereof exceeds
the Maximum Amount, Lenders shall refund such excess, and, in such event,
Lenders shall not, to the extent permitted by Law, be subject to any penalties
provided by any Laws for contracting for, charging, taking, reserving, or
receiving interest in excess of the Maximum Amount.
3.9 INTEREST PERIODS. When Borrower requests any Eurodollar Rate
Borrowing, Borrower may elect the interest period (each an "INTEREST PERIOD")
applicable thereto, which shall be, at Borrower's option, one, two, three, or
six months (or other periods, if requested by Borrower and available from the
Lenders); PROVIDED, HOWEVER, that: (a) the initial Interest Period for a
Eurodollar Rate Borrowing shall commence on the date of such Borrowing
(including the date of any conversion thereto), and each Interest Period
occurring thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period applicable thereto expires; (b) if any
Interest Period for a Eurodollar Rate Borrowing begins on a day for which there
is no numerically corresponding Business Day in the calendar month at the end of
such Interest Period, such Interest Period shall end on the next Business Day
immediately following what otherwise would have been such numerically
corresponding day in the calendar month at the end of such Interest Period
(UNLESS such date would be in a different calendar month from what would have
been the month at the end of such Interest Period, or UNLESS there is no
numerically corresponding day in the calendar month at the end of the Interest
Period; whereupon, such Interest Period shall end on the last Business Day in
the calendar month at the end of such Interest Period); (c) no Interest
27
Period may be chosen with respect to any portion of the Principal Debt which
would extend beyond the scheduled repayment date (including any dates on which
mandatory prepayments are required to be made) for such portion of the
Principal Debt; and (d) no more than an aggregate of six (6) Interest Periods
shall be in effect at one time.
3.10 CONVERSIONS. Borrower may (a) convert a Eurodollar Rate Borrowing on
the last day of an Interest Period to a Base Rate Borrowing, (b) convert a Base
Rate Borrowing at any time to a Eurodollar Rate Borrowing, and (c) elect a new
Interest Period (in the case of a Eurodollar Rate Borrowing), by giving notice
(a "NOTICE OF CONVERSION," substantially in the form of EXHIBIT B-3) of such
intent no later than 10:00 a.m. Dallas, Texas time on the third Business Day
prior to the date of conversion or the last day of the Interest Period, as the
case may be (in the case of a conversion to a Eurodollar Rate Borrowing or an
election of a new Interest Period), and no later than 10:00 a.m. Dallas, Texas
time one Business Day prior to the last day of the Interest Period (in the case
of a conversion to a Base Rate Borrowing); PROVIDED THAT, the principal amount
converted to, or continued as, a Eurodollar Rate Borrowing shall be in an amount
not less than $5,000,000 or a greater integral multiple of $1,000,000.
Administrative Agent shall timely notify each Lender with respect to each Notice
of Conversion. Absent Borrower's Notice of Conversion or election of a new
Interest Period, a Eurodollar Rate Borrowing shall be deemed converted to a Base
Rate Borrowing effective as of the expiration of the Interest Period applicable
thereto. No Eurodollar Rate Borrowing may be either made or continued as a
Eurodollar Rate Borrowing, and no Base Rate Borrowing may be converted to a
Eurodollar Rate Borrowing, if the interest rate for such Eurodollar Rate
Borrowing would exceed the Maximum Rate.
3.11 ORDER OF APPLICATION.
(a) Payments and prepayments of the Obligation shall be applied in
the order and manner specified in this Agreement; PROVIDED, HOWEVER, if no
order is otherwise specified and no Default or Potential Default has
occurred and is continuing, payments and prepayments of the Obligation
shall be applied first to fees, second to accrued interest then due and
payable on the Principal Debt, and then to the remaining Obligation in the
order and manner as Borrower may direct.
(b) If a Default or Potential Default has occurred and is continuing
(or if Borrower fails to give directions as permitted under SECTION
3.11(a)), any payment or prepayment (including proceeds from the exercise
of any Rights) shall be applied to the Obligation and the Revolver/
Acquisition Obligation in the following order: (i) to the ratable payment
of all fees, expenses, and indemnities for which Agents, Revolver/
Acquisition Agents, Lenders, or Revolver/Acquisition Lenders have not
been paid or reimbursed in accordance with the Loan Papers or the
Revolver/Acquisition Loan Papers (as used in this SECTION 3.11(b)(i), a
"RATABLE PAYMENT" for any Lender, any Revolver/Acquisition Lender, any
Revolver/Acquisition Agent, or any Agent shall be, on any date of
determination, that proportion which the portion of the total fees,
expenses, and indemnities owed to such Lender, such Revolver/Acquisition
Lender, such Revolver/Acquisition Agent, or such Agent bears to the total
aggregate fees and indemnities owed to all Lenders, Revolver/Acquisition
Lenders, Revolver/Acquisition Agents, or Agents on such date of
determination); (ii) to the ratable payment of accrued and unpaid
interest on the Principal Debt and the Revolver/Acquisition Principal
Debt (as used in this SECTION 3.11(b)(ii), "RATABLE PAYMENT" means, for
any Lender or Revolver/Acquisition Lender, on any date of determination,
that proportion which the accrued and unpaid interest on the Principal
Debt or the Revolver/Acquisition Principal Debt [as the case may be] owed
to such Lender or Revolver/Acquisition Lender bears to the total accrued
and unpaid interest under the Loan Papers
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and the Revolver/Acquisition Loan Papers owed to all Lenders and the
Revolver/Acquisition Lenders); (iii) to the ratable payment of any
reimbursement obligation with respect to any letter of credit issued
pursuant to the Revolver/Acquisition Facility which is due and payable
and which remains unfunded by any Borrowing under the Revolver/
Acquisition Facility; PROVIDED THAT, such payments shall be allocated
ratably among NationsBank and the Revolver/Acquisition Lenders which have
funded their participation in such letter of credit; (iv) to the ratable
payment of the Principal Debt and the Revolver Principal Debt (as used in
this SECTION 3.11(b)(iv), "RATABLE PAYMENT" means for any Lender or any
Revolver/Acquisition Lender, on any date of determination, that
proportion which the Principal Debt or the Revolver Principal Debt
[as the case may be] owed to such Lender or Revolver/Acquisition Lender
bears to the sum of the Principal Debt and the Revolver Principal Debt
owed to all Lenders and all Revolver/Acquisition Lenders; (v) to the
ratable payment of the Acquisition Principal Debt to be applied in the
order and manner specified in the Revolver/Acquisition Agreement; (vi) to
the Pro Rata payment of the remaining Principal Debt and Revolver/
Acquisition Principal Debt in such order as Determining Lenders may elect
(PROVIDED THAT, Determining Lenders will apply such proceeds in an order
that will minimize any Consequential Loss); (vii) as a deposit with
Revolver/Acquisition Administrative Agent, for the benefit of
Revolver/Acquisition Lenders, as security for, and to provide for the
payment of, any reimbursement obligations, if any, thereafter arising
with respect to any issued and outstanding letters of credit issued
pursuant to the Revolver/Acquisition Facility; and (viii) to the payment
of the remaining Obligation and the Revolver/Acquisition Obligation in
the order and manner Determining Lenders deem appropriate.
Subject to the provisions of SECTION 12 and provided that neither Administrative
Agent nor Collateral Agent shall in any event be bound to inquire into or to
determine the validity, scope, or priority of any interest or entitlement of any
Lender or Revolver/Acquisition Lender and may suspend all payments or seek
appropriate relief (including, without limitation, instructions from Determining
Lenders or an action in the nature of interpleader) in the event of any doubt or
dispute as to any apportionment or distribution contemplated hereby,
Administrative Agent or Collateral Agent, as the case may be, shall: (x)
promptly distribute such amounts to each Lender in accordance with the Agreement
and the related Loan Papers, and (y) promptly distribute all payments allocable
to Revolver/Acquisition Lenders to the Revolver/Acquisition Administrative Agent
for distribution in accordance with the Revolver/Acquisition Agreement and the
related Revolver/Acquisition Loan Papers.
3.12 SHARING OF PAYMENTS, ETC. If any Lender shall obtain any payment
(whether voluntary, involuntary, or otherwise, including, without limitation, as
a result of exercising its Rights under SECTION 3.13) which is in excess of its
ratable share of any such payment, such Lender shall purchase from the other
Lenders and Revolver/Acquisition Lenders such participations as shall be
necessary to cause such purchasing Lender to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery.
Borrower agrees that any Lender so purchasing a participation from another
Lender or Revolver/Acquisition Lender pursuant to this Section and the
Intercreditor Agreement may, to the fullest extent permitted by Law, exercise
all of its Rights of payment (including the Right of offset) with respect to
such participation as fully as if such Lender or Revolver/Acquisition Lender
were the direct creditor of Borrower in the amount of such participation.
3.13 OFFSET. Upon the occurrence and during the continuance of a Default,
each Lender shall be entitled to exercise (for the benefit of all Lenders and
Revolver/Acquisition Lenders in accordance with SECTION 3.12 and the
Intercreditor Agreement) the Rights of offset and/or banker's Lien against each
and
29
every account and other property, or any interest therein, which Borrower
may now or hereafter have with, or which is now or hereafter in the possession
of, such Lender to the extent of the full amount of the Obligation and the
Revolver/Acquisition Obligation.
3.14 BOOKING BORROWINGS. To the extent permitted by Law, any Lender may
make, carry, or transfer its Borrowings at, to, or for the account of any of its
branch offices or the office of any of its Affiliates; PROVIDED THAT, no
Affiliate shall be entitled to receive any greater payment under SECTION 4 than
the transferor Lender would have been entitled to receive with respect to such
Borrowings.
SECTION 4 CHANGE IN CIRCUMSTANCES.
4.1 INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable, or any
change in the interpretation or administration thereof by any Governmental
Authority, or compliance by any Lender (or its Applicable Lending Office)
with any request or directive (whether or not having the force of law) of
any such Governmental Authority:
(i) shall subject such Lender (or its Applicable Lending
Office) to any Tax or other charge with respect to any Eurodollar
Rate Borrowing, its Notes, or its obligation to loan Eurodollar Rate
Borrowings, or change the basis of taxation of any amounts payable to
such Lender (or its Applicable Lending Office) under this Agreement or
its Notes in respect of any Eurodollar Rate Borrowings (other than
taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any reserve,
special deposit, assessment, or similar requirement (other than the
Reserve Requirement utilized in the determination of the Adjusted
Eurodollar Rate) relating to any extensions of credit or other assets
of, or any deposits with or other liabilities or commitments of, such
Lender (or its Applicable Lending Office), including the commitment of
such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending
Office) or the London interbank market any other condition affecting
this Agreement or its Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such
Lender (or its Applicable Lending Office) of making, converting into,
continuing, or maintaining any Eurodollar Rate Borrowings or to reduce any
sum received or receivable by such Lender (or its Applicable Lending
Office) under this Agreement or its Notes with respect to any Eurodollar
Rate Borrowing, then Borrower shall pay to such Lender on demand such
amount or amounts as will compensate such Lender for such increased cost or
reduction. If any Lender requests compensation by Borrower under this
SECTION 4.1(a), Borrower may, by notice to such Lender (with a copy to
Administrative Agent), suspend the obligation of such Lender to loan or
continue Borrowings of the Type with respect to which such compensation is
requested, or to convert Borrowings of any other Type into Borrowings of
such Type, until the event or condition giving rise to such request ceases
to be in effect (in which case the provisions of SECTION 4.4 shall be
applicable); PROVIDED, THAT such suspension shall not affect the right of
such Lender to receive the compensation so requested.
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(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable Law regarding capital adequacy or any change
therein or in the interpretation or administration thereof by any
Governmental Authority charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or
not having the force of law) of any such Governmental Authority has or
would have the effect of reducing the rate of return on the capital of such
Lender or any corporation controlling such Lender as a consequence of such
Lender's obligations hereunder to a level below that which such Lender or
such corporation could have achieved but for such adoption, change,
request, or directive (taking into consideration its policies with respect
to capital adequacy), then from time to time upon demand Borrower shall pay
to such Lender such additional amount or amounts as will compensate such
Lender for such reduction.
(c) Each Lender shall promptly notify Borrower and Administrative
Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender to compensation pursuant to this
Section and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under this Section
shall furnish to Borrower and Administrative Agent a statement setting
forth the additional amount or amounts to be paid to it hereunder which
shall be conclusive in the absence of manifest error. In determining such
amount, such Lender may use any reasonable averaging and attribution
methods.
4.2 LIMITATION ON TYPES OF LOANS. If on or prior to the first day of any
Interest Period for any Eurodollar Rate Borrowing:
(a) Administrative Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the Eurodollar
Rate for such Interest Period; or
(b) Required Lenders determine (which determination shall be
conclusive) and notify Administrative Agent that the Adjusted Eurodollar
Rate will not adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Rate Borrowings for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof specifying
the relevant amounts or periods, and so long as such condition remains in
effect, the Lenders shall be under no obligation to fund additional Eurodollar
Rate Borrowings, continue Eurodollar Rate Borrowings, or to convert Base Rate
Borrowings into Eurodollar Rate Borrowings, and Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Eurodollar
Rate Borrowings, either prepay such Borrowings or convert such Borrowings into
Base Rate Borrowings in accordance with the terms of this Agreement.
4.3 ILLEGALITY. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Borrowings hereunder, then
such Lender shall promptly notify Borrower thereof and such Lender's obligation
to make or continue Eurodollar Rate Borrowings and to convert other Base Rate
Borrowings into Eurodollar Rate Borrowings shall be suspended until such time as
such Lender may again make, maintain, and fund Eurodollar Rate Borrowings (in
which case the provisions of SECTION 4.4 shall be applicable).
4.4 TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to fund
Eurodollar Rate Borrowings or to continue, or to convert Base Rate Borrowings
into Eurodollar Rate Borrowings, shall be
31
suspended pursuant to SECTIONS 4.1, 4.2, or 4.3 hereof, such Lender's
Eurodollar Rate Borrowings shall be automatically converted into Base Rate
Borrowings on the last day(s) of the then current Interest Period(s) for
Eurodollar Rate Borrowings (or, in the case of a conversion required by
SECTION 4.3 hereof, on such earlier date as such Lender may specify to
Borrower with a copy to Administrative Agent) and, unless and until such
Lender gives notice as provided below that the circumstances specified in
SECTIONS 4.1, 4.2, or 4.3 hereof that gave rise to such conversion no longer
exist:
(a) to the extent that such Lender's Eurodollar Rate Borrowings have
been so converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Eurodollar Rate Borrowings shall be
applied instead to its Base Rate Borrowings; and
(b) all Borrowings that would otherwise be made or continued by such
Lender as Eurodollar Rate Borrowings shall be made or continued instead as
Base Rate Borrowings, and all Borrowings of such Lender that would
otherwise be converted into Eurodollar Rate Borrowings shall be converted
instead into (or shall remain as) Base Rate Borrowings.
If such Lender gives notice to Borrower (with a copy to Administrative Agent)
that the circumstances specified in SECTIONS 4.1, 4.2, or 4.3 hereof that gave
rise to the conversion of such Lender's Eurodollar Rate Borrowings pursuant to
this SECTION 4.4 no longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Eurodollar Rate Borrowings
made by other Lenders are outstanding, such Lender's Base Rate Borrowings shall
be automatically converted, on the first day(s) of the next succeeding Interest
Period(s) for such outstanding Eurodollar Rate Borrowings, to the extent
necessary so that, after giving effect thereto, all Eurodollar Rate Borrowings
held by the Lenders and by such Lender are held pro rata (as to principal
amounts, Types, and Interest Periods) in accordance with their respective
Commitments.
4.5 COMPENSATION. Upon the request of any Lender, Borrower shall pay to
such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or conversion of a Eurodollar Rate
Borrowing for any reason (including, without limitation, the acceleration
of the loan pursuant to SECTION 11.1) on a date other than the last day of
the Interest Period for such Borrowing; or
(b) any failure by Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in SECTION 7.3
to be satisfied) to borrow, convert, continue, or prepay a Eurodollar Rate
Borrowing on the date for such borrowing, conversion, continuation, or
prepayment specified in the relevant notice of borrowing, prepayment,
continuation, or conversion under this Agreement.
4.6 TAXES.
(a) Any and all payments by Borrower to or for the account of any
Lender or Administrative Agent hereunder or under any other Loan Paper
shall be made free and clear of and without deduction for any and all
present or future Taxes, EXCLUDING, in the case of each Lender and
Administrative Agent, Taxes imposed on its income and franchise Taxes
imposed on it by the jurisdiction under the laws of which such Lender (or
its Applicable Lending Office) or Administrative Agent (as the case may be)
is organized, or any political subdivision thereof. If Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
32
under this Agreement or any other Loan Paper to any Lender or
Administrative Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions
applicable to additional sums payable under this SECTION 4.6) such Lender
or Administrative Agent receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrower shall make such
deductions, (iii) Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with
applicable law, and (iv) Borrower shall furnish to Administrative Agent, at
its address listed in SCHEDULE 2.1, the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this
Agreement or any other Loan Paper or from the execution or delivery of, or
otherwise with respect to, this Agreement or any other Loan Paper
(hereinafter referred to as "OTHER TAXES").
(c) Borrower agrees to indemnify each Lender and Administrative Agent
for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or other Taxes imposed or asserted by any
jurisdiction on amounts payable under this SECTION 4.6) paid by such Lender
or Administrative Agent (as the case may be) and any liability (including
penalties, interest, and expenses) arising therefrom or with respect
thereto.
(d) Each Lender organized under the laws of a jurisdiction outside
the United States, on or prior to the date of its execution and delivery of
this Agreement in the case of each Lender listed on the signature pages
hereof and on or prior to the date on which it becomes a Lender in the case
of each other Lender, and from time to time thereafter if requested in
writing by Borrower or Administrative Agent (but only so long as such
Lender remains lawfully able to do so), shall provide Borrower and
Administrative Agent with (i) INTERNAL REVENUE SERVICE FORM 1001 or 4224,
as appropriate, or any successor form prescribed by the Internal Revenue
Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the
rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Agreement is effectively connected with
the conduct of a trade or business in the United States, (ii) INTERNAL
REVENUE SERVICE FORM W-8 or W-9, as appropriate, or any successor form
prescribed by the Internal Revenue Service, and (iii) any other form or
certificate required by any taxing authority (including any certificate
required by SECTIONS 871(h) and 881(c) of the Internal Revenue Code),
certifying that such Lender is entitled to an exemption from or a reduced
rate of tax on payments pursuant to this Agreement or any of the other Loan
Papers.
(e) For any period with respect to which a Lender has failed to
provide Borrower and Administrative Agent with the appropriate form
pursuant to SECTION 4.6(d) (unless such failure is due to a change in Law
occurring subsequent to the date on which a form originally was required to
be provided), such Lender shall not be entitled to indemnification under
SECTION 4.6(a) or 4.6(b) with respect to Taxes imposed by the United
States; PROVIDED, HOWEVER, that should a Lender, which is otherwise exempt
from or subject to a reduced rate of withholding tax, become subject to
Taxes because of its failure to deliver a form required hereunder, Borrower
shall take such steps as such Lender shall reasonably request to assist
such Lender to recover such Taxes.
(f) If Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this SECTION 4.6, then such Lender will
agree to use reasonable efforts to
33
change the jurisdiction of its Applicable Lending Office so as to eliminate
or reduce any such additional payment which may thereafter accrue if such
change, in the judgment of such Lender, is not otherwise disadvantageous
to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes,
Borrower shall furnish to Administrative Agent the original or a certified
copy of a receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of
Borrower hereunder, the agreements and obligations of Borrower contained in
this SECTION 4.6 shall survive the termination of the Total Commitment and
the payment in full of the Notes.
SECTION 5 FEES.
5.1 TREATMENT OF FEES. Except as otherwise provided by Law, the fees
described in this SECTION 5: (a) do not constitute compensation for the use,
detention, or forbearance of money, (b) are in addition to, and not in lieu of,
interest and expenses otherwise described in this Agreement, (c) shall be
payable in accordance with SECTION 3.1, (d) shall be non-refundable, (e) shall,
to the fullest extent permitted by Law, bear interest, if not paid when due, at
the Default Rate, and (f) shall be calculated on the basis of actual number of
days (including the first day but excluding the last day) elapsed, but computed
as if each calendar year consisted of 360 days, unless such computation would
result in interest being computed in excess of the Maximum Rate in which event
such computation shall be made on the basis of a year of 365 or 366 days, as the
case may be.
5.2 FEES OF ADMINISTRATIVE AGENT AND ARRANGER. Borrower shall pay to
(a) Administrative Agent and Arranger, as the case may be, solely for their
respective accounts, the fees described in that certain separate letter
agreement dated as of January 7, 1998, between Borrower, Administrative Agent,
and Arranger, and (b) each Lender of all the fees specified in the letter dated
March 24, 1998, addressed to such Lender from Administrative Agent on behalf of
Borrower, which payments shall be made on the dates specified, and in amounts
calculated in accordance with, such letter agreement.
5.3 COMMITMENT FEES. Following the Closing Date, Borrower shall pay to
Administrative Agent, for the ratable account of Lenders, a commitment, payable
in installments in arrears, on each March 31, June 30, September 30, and
December 31 and on the earlier to occur of the Termination Date and the Term
Conversion Date, commencing March 31, 1998. Each installment shall be, in an
amount equal to the Applicable Margin for Commitment Fees MULTIPLIED BY the
amount by which (a) the average daily Commitment exceeds (b) the average daily
Principal Debt, in each case during the period from and including the last
payment date to and excluding the payment date for such installment; PROVIDED
THAT, each such installment shall be calculated in accordance with
SECTION 5.1(f).
SECTION 6. SECURITY; GUARANTIES.
6.1 COLLATERAL. To secure full and complete payment and performance of
the Obligation and the Revolver/Acquisition Obligation, the Companies and each
Guarantor hereby jointly and severally grant and convey to, and create in
favor of Collateral Agent for the ratable benefit of Lenders and the Revolver/
Acquisition Lenders, first priority Liens in, to, and on the following items
and types of property (collectively, herein called the "COLLATERAL"), all as
more particularly described in the Loan Papers (PROVIDED THAT, no Agent or any
Lender hereby assumes or is made the transferee of any obligations of any
Company or any Guarantor regarding any of the Collateral):
34
(a) All present and future accounts, contract Rights, general
intangibles, investment property, chattel paper, documents, instruments,
inventory, equipment, fixtures, other goods, minerals, money, and deposit
accounts, wherever located, now owned or hereafter acquired by any Company
or any Guarantor and any and all present and future Tax refunds of any kind
whatsoever to which any Company or any Guarantor is now or shall hereafter
become entitled.
(b) All present and future issued and outstanding shares of capital
stock or other equity or investment securities now owned or hereafter
acquired by any Company or any Guarantor, including, without limitation,
all capital stock of the Subsidiaries of any Company or any Guarantor,
together with all distributions thereon and any securities issued in
substitution or replacement thereof.
(c) All Rights, titles, and interests of any Company in and to all
promissory notes and other instruments payable to the Companies, now or
hereafter existing, including, without limitation, any Cellular Partnership
Promissory Notes or other inter-company notes, and all Rights in, to, and
under all other loan and collateral documents relating to such instruments.
(d) All present and future Rights, titles, interests, and Liens (but
none of the obligations) now owned or hereafter acquired by any Company or
any Guarantor in any partnership or joint venture, including, without
limitation, the Cellular Partnerships.
(e) All present and future Rights, titles, interests, and Liens (but
none of the obligations) now owned or hereafter acquired by any Company or
any Guarantor, as lessee or landlord, in and to each lease covering real
property or any interest therein, and equipment or other personal property
or any interest therein (each such lease herein called an "ASSIGNED
LEASE").
(f) Substantially all of the real estate now owned or hereafter
acquired by any Company or any Guarantor, TOGETHER WITH all improvements
thereon and fixtures attached thereto.
(g) The balance of every deposit account of any Company or any
Guarantor and any other claim of any Company or any Guarantor against any
depository, now or hereafter existing, whether liquidated or unliquidated,
including, without limitation, certificates of deposit, and other deposit
instruments.
(h) All present and future automobiles, trucks, truck tractors,
trailers, semi-trailers, other motor vehicles or rolling stock now owned or
hereafter acquired by any Company or any Guarantor (collectively, the
"VEHICLES").
(i) All present and future Rights, awards, and judgments to which any
Company or Guarantor is entitled under any Litigation (whether arising in
equity, contract, or tort) now existing or hereafter arising.
(j) All present and future Rights (including, without limitation, the
Right to xxx for past, present, or future infringements), titles, and
interests of any Company or any Guarantor in and to all trademark
applications, trademarks, corporate names, company names, tradenames,
business names, fictitious business names, tradestyles, service marks,
logos, other source of business identifiers, copyrights, designs, Rights or
licenses to use any trademarks, and all
35
registrations and recordings thereof (collectively, the "TRADEMARKS"), and
the goodwill of each business to which each Trademark relates.
(k) All present and future Rights (including, without limitation, the
Right to xxx for past, present, and future infringements), titles, and
interests of any Company or any Guarantor in and to all patents, patent
applications, utility models, industrial models, designs, and any other
forms of industrial intellectual property, including all grants,
applications, reissues, continuations, and divisions with respect thereto
and any Rights to use, manufacture, or sell any patent.
(l) All Authorizations, licenses, and permits issued by the FCC or
any PUC to any Company or any Guarantor, to the extent permitted by
applicable Law.
(m) All proceeds of any sale or other disposition of any
Authorization, license, or permit issued by the FCC or any PUC to any
Company or any Guarantor, whether or not any such license or permit may
lawfully be included as Collateral and whether or not the grant of a
security interest in any such Authorization, license, or permit is
otherwise prohibited.
(n) All present and future increases, profits, combinations,
reclassifications, improvements, and products of, accessions, attachments,
and other additions to, tools, parts, and equipment used in connection
with, and substitutes and replacements for, all or part of the Collateral
heretofore described.
(o) All present and future accounts, contract Rights, general
intangibles, chattel paper, documents, instruments, cash and noncash
proceeds, and other Rights arising from or by virtue of, or from the
voluntary or involuntary sale or other disposition of, or collections with
respect to, or insurance proceeds payable with respect to, or proceeds
payable by virtue of warranty or other claims against the manufacturer of,
or claims against any other Person with respect to, all or any part of the
Collateral heretofore described in this clause or otherwise.
(p) All present and future security for the payment to any Company or
any Guarantor of any of the Collateral heretofore described and goods which
gave or will give rise to any of such Collateral or are evidenced,
identified, or represented therein or thereby.
6.2 GUARANTIES. As an inducement to Agents and Lenders to enter into this
Agreement, Borrower shall cause each other Company and each Cellular Partnership
Obligor to execute and deliver to Administrative Agent a Guaranty substantially
in the form and upon the terms of EXHIBIT C, providing for the guarantee of
payment and performance of the Obligation and the Revolver/Acquisition
Obligation.
6.3 FUTURE LIENS. Promptly after (a) the acquisition of any assets (real,
personal, tangible, or intangible) by any Company or any Guarantor, (b) the
removal, termination, or expiration of any prohibitions upon the granting of a
Lien in any asset (real, personal, tangible, or intangible) of any Company or
any Guarantor, or (c) upon the designation, formation, or acquisition of any new
Subsidiary (the assets and stock of such new Subsidiary and the assets described
in CLAUSES (a) and (b) hereof are referred to herein as the "ADDITIONAL
ASSETS"), Borrower shall (or shall cause such other Company or Guarantor to)
execute and deliver to Collateral Agent all further instruments and documents
(including, without limitation, Collateral Documents and all certificates and
instruments representing shares of stock or evidencing Debt and [any realty
appraisals] as Collateral Agent may require with respect to any such Additional
Assets), and shall take all further action that may be necessary or desirable,
or that Collateral Agent or Administrative Agent may reasonably request, to
grant, perfect, and protect Liens in favor of
36
Collateral Agent for the benefit of Lenders and the Revolver/Acquisition
Lenders in such Additional Assets, as security for the Obligation and the
Revolver/Acquisition Obligation; IT BEING EXPRESSLY UNDERSTOOD that the
granting of such additional security for the Obligation is a material
inducement to the execution and delivery of this Agreement by each Lender.
Upon satisfying the terms and conditions hereof, such Additional Assets shall
be included in the "COLLATERAL" for all purposes under the Loan Papers, and
all references to the "COLLATERAL" in the Loan Papers shall include the
Additional Assets.
6.4 RELEASE OF COLLATERAL.
(a) UPON SALE OR DISPOSITION OF COLLATERAL. Upon any sale, transfer,
or disposition of Collateral which is expressly permitted pursuant to the
Loan Papers and the Revolver/Acquisition Loan Papers (or is otherwise
authorized by Lenders and the Revolver/Acquisition Lenders), and upon ten
(10) Business Days' prior written request by Borrower (which request must
be accompanied by true and correct copies of (a) all documents of transfer
or disposition, including any contract of sale, (b) a preliminary closing
statement and instructions to the title company, if any, and (c) all
requested release instruments), Collateral Agent shall (and is hereby
irrevocably authorized by the Lenders to) execute such documents as may be
necessary to evidence the release of Liens granted to Collateral Agent for
the benefit of Lenders and the Revolver/Acquisition Lenders pursuant hereto
in such Collateral; PROVIDED THAT, (i) no such release of Lien shall be
granted if any Default or Potential Default has occurred and is continuing,
including, without limitation, the failure to make certain mandatory
prepayments in accordance with SECTIONS 3.2(c) and (d) in conjunction with
the sale or transfer of such Collateral; (ii) Collateral Agent shall not be
required to execute any such document on terms which, in Collateral Agent's
opinion, would expose Collateral Agent to liability or create any
obligation or entail any consequence OTHER THAN the release of such Liens
without recourse or warranty; and (iii) such release shall not in any
manner discharge, affect, or impair the Obligation, the Revolver/
Acquisition Obligation, or Liens upon (or obligations of any Company or any
Guarantor in respect of) all interests retained by the Companies and the
Guarantors, including (without limitation) the proceeds of any sale, all
of which shall continue to constitute Collateral.
(b) CELLULAR PARTNERSHIP OBLIGOR COLLATERAL. With respect to Liens
on the assets of the Cellular Partnership Obligors, such Liens (as well as
any Liens on partnership interests therein pledged by Persons other than
any Company or any Guarantor) shall be released in the event all Debt to
the Companies has been paid in full and terminated; PROVIDED, FURTHER
HOWEVER, that from the date of such repayment until the Obligation has been
paid in full and the Commitment has been terminated, no Company may,
directly or through a Subsidiary, advance funds to any such Cellular
Partnership. In regard to repayment of such intercompany Debt, Collateral
Agent is hereby authorized by Lenders to execute and deliver such releases
of Cellular Partnership Obligors upon ten (10) Business Days prior written
request by Borrower supported by evidence that such intercompany Debt has
been terminated and repaid in full and accompanied by appropriate release
instruments, which must be in form and substance satisfactory to Collateral
Agent.
6.5 NEGATIVE PLEDGE. Notwithstanding the provisions of SECTION 6.1
hereof, until such time as Administrative Agent or Determining Lenders otherwise
require, the Companies and the Guarantors shall not be required to perfect Liens
on any assets described in SECTIONS 6.1(e), (f), (g), and (h) or to grant
specific assignments of easements, licenses, permits, certificates of
compliance, and certificates of approval issued by regulatory authorities,
franchises, or like grants of authority or service agreements. To the extent
Collateral Agent and Determining Lenders agree to delay the perfection or
attachment of any Lien granted
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pursuant to SECTION 6.1 hereof, for whatever reason, the Companies and the
Guarantors hereby covenant and agree not to directly create, incur, grant,
suffer, or permit to be created or incurred any Lien on any such assets,
OTHER THAN Permitted Liens. Furthermore, within thirty (30) days of the
request of Collateral Agent, Borrower shall (or shall cause each Company and
each Guarantor to) execute and deliver to Collateral Agent all instruments
and documents (including, without limitation, certificates and instruments
and documents representing shares of stock or evidencing Debt) and shall take
all further action that may be necessary or desirable, or that Collateral
Agent may reasonably request, to grant, perfect, and protect Liens in favor
of Collateral Agent for the benefit of Lenders, in such assets, as security
for the Obligation and the Revolver/Acquisition Obligation; IT BEING
EXPRESSLY UNDERSTOOD that the provisions of this negative pledge are a
material inducement to the execution and delivery of this Agreement by each
Lender.
6.6 CONTROL; LIMITATION OF RIGHTS. Notwithstanding anything herein or in
any other Loan Paper to the contrary, (a) the transactions contemplated hereby
(i) do not and will not constitute, create, or have the effect of constituting
or creating, directly or indirectly, actual or practical ownership of the
Companies or the Guarantors by Agents or Lenders, or control, affirmative or
negative, direct or indirect, by Agents or Lenders over the management or any
other aspect of the operation of the Companies or the Guarantors, which
ownership or control remains exclusively and at all times in the Companies or
the Guarantors, and (ii) do not and will not constitute the transfer,
assignment, or disposition in any manner, voluntary or involuntary, directly or
indirectly, of any Authorization at any time issued by the FCC or any PUC to the
Companies or the Guarantors, or the transfer of control of the Companies or the
Guarantors within the meaning of SECTION 310(d) of the Communications Act of
1934, as amended; and (b) neither Administrative Agent nor Collateral Agent
shall, without first obtaining the approval of the FCC or any applicable PUC,
take any action pursuant to this Agreement or any other Loan Paper that would
constitute or result in any assignment of any Authorization or any change of
control of the Companies or the Guarantors, if such assignment or change of
control would require, under then existing Law (including the written rules and
regulations promulgated by the FCC or any such PUC), the prior approval of the
FCC or any such PUC.
SECTION 7 CONDITIONS PRECEDENT.
7.1 CONDITIONS PRECEDENT TO CLOSING. This Agreement shall not become
effective, and Lenders shall not be obligated to advance any Borrowing, unless
Administrative Agent has received all of the agreements, documents, instruments,
and other items described on SCHEDULE 7.1 (OTHER THAN, each item, if any, listed
on SCHEDULE 7.1A, which items are hereby permitted to be delivered after the
Closing Date, but not later than the respective date for delivery of each such
item specified on SCHEDULE 7.1A).
7.2 CONDITIONS PRECEDENT TO A PERMITTED ACQUISITION. On or prior to the
consummation of any Acquisition (whether or not the purchase price for such
Acquisition is funded by Borrowings), Borrower shall have satisfied the
conditions and delivered, or caused to be delivered, to Administrative Agent,
all documents and certificates set forth on SCHEDULE 7.2 by no later than the
dates specified for satisfaction of such conditions on SCHEDULE 7.2; PROVIDED
THAT, with respect to the Acquisition of California 4 RSA, Borrower shall not be
required to deliver the Permitted Acquisition Compliance Certificate 30 days
prior to closing of such Acquisition, SO LONG AS Borrower shall deliver all
certificates and documents required under PART A of SCHEDULE 7.2 on or prior to
the Closing Date. Promptly upon receipt of each Permitted Acquisition
Compliance Certificate and each Permitted Acquisition Loan Closing Certificate,
Administrative Agent shall provide copies of such certificates to Lenders. All
documentation delivered and satisfaction of conditions pursuant to the
requirements of SECTION 7.2 must be satisfactory to Administrative Agent. To
the extent any Borrowing is being requested in connection with the
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consummation of the Acquisition, the conditions set forth in SECTIONS 7.2 and
7.3 hereof must be satisfied prior to the making of any such Borrowing.
7.3 CONDITIONS PRECEDENT TO EACH BORROWING. In addition to the conditions
stated in SECTION 7.1 and SECTION 7.2, Lenders will not be obligated to fund (as
opposed to continue or convert) any Borrowing, unless on the date of such
Borrowing (and after giving effect thereto): (a) Administrative Agent shall
have timely received therefor a Notice of Borrowing; (b) all of the
representations and warranties of any Company or any Guarantor set forth in the
Loan Papers are true and correct in all material respects (except to the extent
that (i) the representations and warranties speak to a specific date or (ii) the
facts on which such representations and warranties are based have been changed
by transactions contemplated or permitted by the Loan Papers); (c) no change in
the financial condition or business of any Company or any Guarantor which could
be a Material Adverse Event shall have occurred; (d) no Default or Potential
Default shall have occurred and be continuing; (e) the funding of such
Borrowings is permitted by Law; (f) in the event all or any part of the proceeds
of the Borrowing will be used to finance a Distribution to the extent permitted
by SECTION 9.21, Administrative Agent shall have received all such
certifications, financial information, and projections as Administrative Agent
may reasonably request; and (g) all matters related to such Borrowing must be
satisfactory to Required Lenders and their respective counsel in their
reasonable determination, and upon the reasonable request of Administrative
Agent, Borrower shall deliver to Administrative Agent evidence substantiating
any of the matters in the Loan Papers which are necessary to enable Borrower to
qualify for such Borrowing. Each Notice of Borrowing delivered to
Administrative Agent shall constitute the representation and warranty by
Borrower to Administrative Agent that the statements above are true and correct
in all respects. Each condition precedent in this Agreement is material to the
transactions contemplated in this Agreement, and time is of the essence in
respect of each thereof. Subject to the prior approval of Required Lenders,
Lenders may fund any Borrowing without all conditions being satisfied, but, to
the extent permitted by Law, the same shall not be deemed to be a waiver of the
requirement that each such condition precedent be satisfied as a prerequisite
for any subsequent funding or issuance, unless Required Lenders specifically
waive each such item in writing.
SECTION 8 REPRESENTATIONS AND WARRANTIES. Borrower, each other Company, and
each Guarantor represent and warrant to Administrative Agent and Lenders as
follows:
8.1 PURPOSE OF CREDIT FACILITY. Borrower will use (or will loan such
proceeds to its Companies to so use) all proceeds of Borrowings for one or more
of the following: (a) to finance the Acquisition of California RSA-4, Texas
RSA-16, Santa Xxxx MSA, and other Permitted Acquisitions; (b) to finance Capital
Expenditures; (c) to finance certain investments permitted by the Loan Papers;
(d) to finance certain permitted Distributions; and (e) for general corporate
purposes. No Company or Guarantor is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
purchasing or carrying any "MARGIN STOCK" within the meaning of REGULATION U.
No part of the proceeds of any Borrowing will be used, directly or indirectly,
for a purpose which violates any Law, including, without limitation, the
provisions of REGULATIONS G, T, U, or X (as enacted by the Board of Governors of
the Federal Reserve System, as amended).
8.2 EXISTENCE, GOOD STANDING, AUTHORITY, AND AUTHORIZATIONS. Each Company
and Guarantor is duly organized, validly existing, and in good standing under
the Laws of its jurisdiction of organization (such jurisdictions being
identified on SCHEDULE 8.3, as supplemented and modified in writing from time to
time to reflect any changes to such Schedule as a result of transactions
permitted by the Loan Papers). Each Company is duly qualified to transact
business and is in good standing in each jurisdiction where the nature and
extent of its business and properties require the same. Each of Borrower, the
39
Guarantors, and the Companies possesses all the Authorizations, franchises,
permits, licenses, certificates of compliance, and approvals and grants of
authority necessary, including, without limitation, any Authorization issued by
the FCC, all of which are described on SCHEDULE 8.2 hereto, necessary or
required in the conduct of its respective business(es), and the same are valid,
binding, enforceable, and subsisting without any defaults thereunder or
enforceable adverse limitations thereon and are not subject to any proceedings
or claims opposing the issuance, development, or use thereof or contesting the
validity thereof. No authorization, consent, approval, waiver, license, or
formal exemptions from, nor any filing, declaration, or registration with, any
Governmental Authority (federal, state, or local), or non-governmental entity,
under the terms of contracts or otherwise, is required by reason of or in
connection with the execution and performance of the Loan Papers by Borrower,
the Guarantors, and the Companies.
8.3 SUBSIDIARIES; CAPITAL STOCK. The Companies and Guarantors have no
Subsidiaries except as disclosed on SCHEDULE 8.3 (as supplemented and modified
in writing from time to time to reflect any changes to such Schedule as a result
of transactions permitted by the Loan Papers). All of the outstanding shares of
capital stock (or similar voting interests) of each Subsidiary are duly
authorized, validly issued, fully paid, and nonassessable and are owned of
record and beneficially as set forth on SCHEDULE 8.3 (as supplemented and
modified in writing from time to time to reflect any changes to such Schedule as
a result of transactions permitted by the Loan Papers), free and clear of any
Liens, restrictions, claims, or Rights of another Person, other than Permitted
Liens, and none of such shares owned by any Company or Guarantor is subject to
any restriction on transfer thereof except for restrictions imposed by
securities Laws and general corporate Laws. No Company or Guarantor has
outstanding any warrant, option, or other Right of any Person to acquire any of
its capital stock or similar equity interests. The number and percentage of
shares of partnership interests in each of the Cellular Partnerships, and the
ownership thereof, are accurately set forth on SCHEDULE 8.3 attached hereto; all
such partnership interests are validly issued under the terms of the applicable
Partnership Agreements and applicable Law; and the partners' ownership thereof
is free and clear of any liens or security interests or other contractual
restrictions, other than the pledge thereof in favor of Collateral Agent, on
behalf of Lenders, as set forth on SCHEDULE 8.3 attached hereto.
8.4 AUTHORIZATION AND CONTRAVENTION. The execution and delivery by each
Company and Guarantor of each Loan Paper to which it is a party and the
performance by such Company and Guarantor of its obligations thereunder (a) are
within the corporate power of such Company or Guarantor, (b) will have been duly
authorized by all necessary corporate or partnership action on the part of such
Company or Guarantor when such Loan Paper is executed and delivered, (c) require
no action by or in respect of, or filing with, any Governmental Authority, which
action or filing has not been taken or made on or prior to the Closing Date (or
if later, the date of execution and delivery of such Loan Paper), (d) will not
violate any provision of the charter, bylaws, or partnership agreement of such
Company or Guarantor, (e) will not violate any provision of Law applicable to
it, other than such violations which individually or collectively could not be a
Material Adverse Event, (f) will not violate any material written or oral
agreements, contracts, commitments, or understandings to which it is a party,
other than such violations which could not be a Material Adverse Event, or
(g) will not result in the creation or imposition of any Lien on any asset of
any Company or Guarantor. The Companies and Guarantors have (or will have upon
consummation thereof) all necessary consents and approvals of any Person or
Governmental Authority required to be obtained in order to effect any asset
transfer, change of control, merger, or consolidations permitted by the Loan
Papers.
8.5 BINDING EFFECT. Upon execution and delivery by all parties thereto,
each Loan Paper will constitute a legal, valid, and binding obligation of each
Company and each Guarantor party thereto,
40
enforceable against each such Company or Guarantor in accordance with its
terms, except as enforceability may be limited by applicable Debtor Relief
Laws and general principles of equity.
8.6 FINANCIAL STATEMENTS. The Current Financials were prepared in
accordance with GAAP and present fairly, in all material respects, the
consolidated financial condition, results of operations, and cash flows of the
Companies as of and for the portion of the fiscal year ending on the date or
dates thereof (subject only to normal year-end audit adjustments). There were
no material liabilities, direct or indirect, fixed or contingent, of the
Companies as of the date or dates of the Current Financials which are required
under GAAP to be reflected therein or in the notes thereto, and are not so
reflected. Except for transactions directly related to, or specifically
contemplated by, the Loan Papers, there have been no changes in the consolidated
financial condition of the Companies from that shown in the Current Financials
after such date which could be a Material Adverse Event, nor has Borrower or any
Company incurred any liability (including, without limitation, any liability
under any Environmental Law), direct or indirect, fixed or contingent, after
such date which could be a Material Adverse Event.
8.7 LITIGATION, CLAIMS, INVESTIGATIONS. No Company or Guarantor is
subject to, or aware of the threat of, any Litigation which is reasonably likely
to be determined adversely to any Company or any Guarantor, and, if so adversely
determined, could (individually or collectively with other Litigation) be a
Material Adverse Event. There are no outstanding orders or judgments for the
payment of money in excess of $1,000,000 (individually or collectively) or any
warrant of attachment, sequestration, or similar proceeding against the assets
of any Company or Guarantor having a value (individually or collectively) of
$1,000,000 or more which is not either (a) stayed on appeal or (b) being
diligently contested in good faith by appropriate proceedings and adequate
reserves have been set aside on the books of such Company in accordance with
GAAP. There are no formal complaints, suits, claims, investigations, or
proceedings initiated at or by any Governmental Authority pending or threatened
by or against any Company or Guarantor which could be a Material Adverse Event,
nor any judgments, decrees, or orders of any Governmental Authority outstanding
against any Company or any Guarantor that could be a Material Adverse Event.
8.8 TAXES. All Tax returns of each Company and Guarantor required to be
filed have been filed (or extensions have been granted) prior to delinquency,
except for any such returns for which the failure to so file could not be a
Material Adverse Event, and all Taxes imposed upon each Company or Guarantor
which are due and payable have been paid prior to delinquency, OTHER THAN Taxes
for which the criteria for Permitted Liens (as specified in SECTION 9.13(b)(v))
have been satisfied or for which nonpayment thereof could not constitute a
Material Adverse Event.
8.9 ENVIRONMENTAL MATTERS. No Company or Guarantor (a) knows of any
environmental condition or circumstance, such as the presence or Release of any
Hazardous Substance, on any property presently or previously owned by any
Company or any Guarantor that could be a Material Adverse Event, (b) knows of
any violation by any Company or any Guarantor of any Environmental Law, except
for such violations that could not be a Material Adverse Event, or (c) knows
that any Company or any Guarantor is under any obligation to remedy any
violation of any Environmental Law, except for such obligations that could not
be a Material Adverse Event; PROVIDED, HOWEVER, that each Company and each
Guarantor (x) to the best of its knowledge, has in full force and effect all
environmental permits, licenses, and approvals required to conduct its
operations and is operating in substantial compliance thereunder, and (y) has
taken prudent steps to determine that its properties and operations are not in
violation of any Environmental Law.
8.10 EMPLOYEE BENEFIT PLANS. (a) No Employee Plan has incurred an
accumulated funding deficiency, as defined in SECTION 302 of ERISA and
SECTION 412 of the Code, (b) neither Borrower nor any
41
ERISA Affiliate has incurred material liability which is currently due and
remains unpaid under TITLE IV of ERISA to the PBGC or to an Employee Plan in
connection with any such Employee Plan, (c) neither Borrower nor any ERISA
Affiliate has withdrawn in whole or in part from participation in a
Multiemployer Plan, (d) Borrower has not engaged in any "PROHIBITED
TRANSACTION" (as defined in SECTION 406 of ERISA or SECTION 4975 of the Code)
which would be a Material Adverse Event, and (e) no Reportable Event has
occurred which is likely to result in the termination of an Employee Plan.
The present value of all benefit liabilities within the meaning of TITLE IV
of ERISA under each Employee Plan (based on those actuarial assumptions used
to fund such Employee Plan) did not, as of the last annual valuation date for
the 1997 plan year of such Plan, exceed the value of the assets of such
Employee Plan, and the total present values of all benefit liabilities within
the meaning of TITLE IV of ERISA of all Employee Plans (based on the
actuarial assumptions used to fund each such Plan) did not, as of the
respective annual valuation dates for the 1997 plan year of each such Plan,
exceed the value of the assets of all such plans.
8.11 PROPERTIES; LIENS. Each Company and each Guarantor has good and
marketable title to all its property reflected on the Current Financials, EXCEPT
(a) for (i) property that is obsolete, (ii) property that has been disposed of
in the ordinary course of business, or (iii) property with title defects or
failures in title which would not be a Material Adverse Event, or (b) as
otherwise permitted by the Loan Papers. Except for Permitted Liens, there is no
Lien on any property of any Company or any Guarantor, and the execution,
delivery, performance, or observance of the Loan Papers will not require or
result in the creation of any Lien on such property.
8.12 GOVERNMENT REGULATIONS. No Company or Guarantor is subject to
regulation under the INVESTMENT COMPANY ACT OF 1940, as amended, the PUBLIC
UTILITY HOLDING COMPANY ACT OF 1935, as amended, or any other Law (other than
REGULATIONS G, T, U, and X of the Board of Governors of the Federal Reserve
System and the requirements of any PUC or public service commission) which
regulates the incurrence of Debt.
8.13 TRANSACTIONS WITH AFFILIATES. No Company or Guarantor is a party to a
material transaction with any of its Affiliates (excluding transactions between
or among Companies), other than transactions in the ordinary course of business
and upon fair and reasonable terms not materially less favorable than such
Company could obtain or could become entitled to in an arm's-length transaction
with a Person that was not its Affiliate.
8.14 DEBT. No Company or Guarantor is an obligor on any Debt other than
Permitted Debt.
8.15 MATERIAL AGREEMENTS; MANAGEMENT AGREEMENTS. SCHEDULE 8.15 hereto sets
forth a list of all contracts material to the respective business of the
Companies and the Guarantors (including with respect to the Systems), and there
exists no material default under any of such contracts. There are no failures
of any material written or oral agreements, contracts, commitments, or
understandings to which any Company or Guarantor is a party to be in full force
and effect which could be a Material Adverse Event, and no default or potential
default exists on the part of any Company or any Guarantor thereunder which
could be a Material Adverse Event. None of Borrower, the Guarantors, or the
Companies is a party to any management or consulting agreement for the provision
of services to it, except as described in SCHEDULE 8.15 hereto.
8.16 INSURANCE. Each Company and each Guarantor maintains, with
financially sound, responsible, and reputable insurance companies or
associations, insurance concerning its properties and businesses against such
casualties and contingencies and of such types and in such amounts (and with
co-insurance and deductibles) as is customary in the case of same or similar
businesses.
42
8.17 LABOR MATTERS. There are no actual or threatened strikes, labor
disputes, slow downs, walkouts, or other concerted interruptions of operations
by the employees of any Company or any Guarantor that could be a Material
Adverse Event. Hours worked by and payment made to employees of the Companies
and the Guarantors have not been in violation of the FAIR LABOR STANDARDS ACT or
any other applicable Law dealing with such matters, other than any such
violations, individually or collectively, which could not constitute a Material
Adverse Event. All payments due from any Company or any Guarantor on account of
employee health and welfare insurance have been paid or accrued as a liability
on its books, other than any such nonpayments which could not, individually or
collectively, constitute a Material Adverse Event.
8.18 SOLVENCY. At the time of each Borrowing hereunder and on the date of
each Permitted Acquisition, each Company and each Guarantor is (and after giving
effect to the transactions contemplated by the Loan Papers, any Permitted
Acquisition, and any incurrence of additional Debt, will be) Solvent.
8.19 INTELLECTUAL PROPERTY. Each Company and each Guarantor owns or has
sufficient and legally enforceable rights to use all material licenses, patents,
patent applications, copyrights, service marks, trademarks, trademark
applications, and trade names necessary to continue to conduct its businesses as
heretofore conducted by it, now conducted by it, and now proposed to be
conducted by it. Each Company and each Guarantor is conducting its business
without infringement or claim of infringement of any license, patent, copyright,
service xxxx, trademark, trade name, trade secret, or other intellectual
property right of others, other than any such infringements or claims which, if
successfully asserted against or determined adversely to any Company or any
Guarantor, could not, individually or collectively, constitute a Material
Adverse Event.
8.20 COMPLIANCE WITH LAWS. No Company or Guarantor is in violation of any
Laws (including, without limitation, the Communications Act, Environmental Laws,
and those Laws administered by the FCC and any PUC), other than such violations
which could not, individually or collectively, be a Material Adverse Event. No
Company or Guarantor has received notice alleging any noncompliance with any
Laws, except for such noncompliance which no longer exists, or which could not
constitute a Material Adverse Event.
8.21 PERMITTED ACQUISITIONS.
(a) VALIDITY. With respect to any Permitted Acquisitions, each of
Borrower, the Companies, and the Guarantors has the power and authority
under the Laws of its state of incorporation and under its articles of
incorporation and bylaws or Partnership Agreement, as applicable, to enter
into and perform the related Acquisition agreement to which it is a party
and all other agreements, documents, and actions required thereunder; and
all actions (corporate or otherwise) necessary or appropriate by Borrower,
the Companies, or the Guarantors (as the case may be) for the execution and
performance of said Acquisition agreements, and all other documents,
agreements, and actions required thereunder, have been taken, and, upon
their execution, such Acquisition agreements will constitute the valid and
binding obligation of Borrower, the Companies, and the Guarantors, as the
case may be, enforceable in accordance with their respective terms.
(b) NO VIOLATIONS. With respect to any Permitted Acquisition, the
making and performance of the related Acquisition agreements, and all other
agreements, documents, and actions required thereunder, will not violate
any provision of any Law, including, without limitation, all state
corporate Laws and judicial precedents of the states of incorporation or
43
formation of Borrower, the Companies, and the Guarantors, and will not
violate any provisions of the articles of incorporation and bylaws or
Partnership Agreements of Borrower, the Companies, or the Guarantors, or
constitute a default under any agreement by which Borrower, the Companies,
or the Guarantors or their respective property may be bound.
8.22 REGULATION U. "MARGIN STOCK" (as defined in REGULATION U) constitutes
less than 25% of those assets of the Companies or the Guarantors which are
subject to any limitation on sale, pledge, or other restrictions hereunder.
8.23 TRADENAME. No Company or Guarantor has used or transacted business
under any other corporate or trade name in the five-year period preceding the
date hereof.
8.24 FULL DISCLOSURE. There is no material fact or condition relating to
the Loan Papers or the financial condition, business, or property of any Company
or any Guarantor which could be a Material Adverse Event and which has not been
related, in writing, to Administrative Agent. All information heretofore
furnished by any Company or any Guarantor to any Lender or Administrative Agent
in connection with the Loan Papers was, and all such information hereafter
furnished by any Company or any Guarantor to any Lender or Administrative Agent
will be, true and accurate in all material respects or based on reasonable
estimates on the date as of which such information is stated or certified.
SECTION 9 COVENANTS. Borrower and each Guarantor covenant and agree (and agree
to cause their ERISA Affiliates with respect to SECTION 9.10) to perform,
observe, and comply with each of the following covenants, from the Closing Date
and SO LONG THEREAFTER AS Lenders are committed to fund Borrowings under this
Agreement and thereafter until the payment in full of the Principal Debt and
payment in full of all other interest, fees, and other amounts of the Obligation
then due and owing, UNLESS Borrower receives a prior written consent to the
contrary by Administrative Agent as authorized by Required Lenders:
9.1 USE OF PROCEEDS. Borrower shall use the proceeds of Borrowings only
for the purposes represented herein.
9.2 BOOKS AND RECORDS. The Companies and Guarantors shall maintain books,
records, and accounts necessary to prepare financial statements in accordance
with GAAP.
9.3 ITEMS TO BE FURNISHED. Borrower shall cause the following to be
furnished to Administrative Agent for delivery to Lenders:
(a) Promptly after preparation, and no later than 120 days after the
last day of each fiscal year of each of Borrower and Communications,
Financial Statements showing the consolidated and consolidating financial
condition and results of operations calculated for each of (x) the
Companies and (y) Communications and its Restricted Subsidiaries as of, and
for the year ended on, such day, accompanied by:
(i) the unqualified opinion of a firm of nationally-recognized
independent certified public accountants, based on an audit using
generally accepted auditing standards, that such Financial Statements
(calculated with respect to the Companies or Communications and its
Restricted Subsidiaries, as the case may be) were prepared in
accordance with GAAP and present fairly the consolidated financial
condition and results
44
of operations of the Companies or Communications and its Restricted
Subsidiaries, as the case may be;
(ii) any management letter prepared by such accounting firm;
(iii) with respect to the Financial Statements of the
Companies, a certificate from such accounting firm to Administrative
Agent indicating that during its audit it obtained no knowledge of any
Default or Potential Default or, if it obtained such knowledge, the
nature and period of existence thereof;
(iv) a letter from such accounting firm addressed to Borrower,
with a copy to Administrative Agent, acknowledging that (A) Borrower
plans to provide Administrative Agent with such audited Financial
Statements and accompanying audit report, (B) Administrative Agent has
informed Borrower that Administrative Agent and Lenders intend to rely
on such firm's audit report accompanying such Financial Statements,
and (C) Borrower intends for Administrative Agent and Lenders to so
rely; and
(v) with respect to the Financial Statements of the Companies, a
Compliance Certificate.
(b) Promptly after preparation, and no later than 60 days after the
last day of each fiscal quarter of Borrower, Financial Statements showing
the consolidated financial condition and results of operations calculated
for the Companies for such fiscal quarter and for the period from the
beginning of the then-current fiscal year to, such last day, accompanied by
a Compliance Certificate with respect to such Financial Statements.
(c) Within 60 days after the end of each fiscal quarter of Borrower,
a management report, showing for each System results of operations and
subscriber counts, discussing the financial results and comparing actual
performance results to the Budget for such period, and outlining principal
factors affecting performances of each market, and detailing the
outstanding principal amount of intercompany loans and advances from
Borrower to any Cellular Partnership Obligor, if any, all in form and
substance satisfactory to Administrative Agent.
(d) On or prior to March 31 of each fiscal year of Borrower, the
financial Budget for such fiscal year, accompanied by a certificate
executed by a Responsible Officer, certifying that such Budget was prepared
by Borrower based on assumptions which, in light of the historical
performance of the Companies and their prospects for the future, are
realistic and achievable.
(e) Promptly upon receipt thereof, copies of all auditor's annual
management letters delivered to Borrower.
(f) Notice, promptly after Borrower knows or has reason to know of
(i) the existence and status of any Litigation which could be a Material
Adverse Event, or of any order or judgment for the payment of money which
(individually or collectively) is in excess of $1,000,000, or any warrant
of attachment, sequestration, or similar proceeding against the assets of
any Company or Guarantor having a value (individually or collectively) of
$1,000,000, (ii) any material change in any material fact or circumstance
represented or warranted in any Loan Paper, (iii) a Default or Potential
Default specifying the nature thereof and what action Borrower or any other
Company or Guarantor has taken, is taking, or proposes to take with respect
thereto, (iv) the receipt by any Company or Guarantor of any notice from
any Governmental Authority of the expiration without
45
renewal, termination, material modification or suspension of, or
institution of any proceedings to terminate, materially modify, or
suspend, any Authorization granted by the FCC or any applicable PUC, or
any other Authorization which any Company or Guarantor is required to
hold in order to operate its business in compliance with all applicable
Laws, other than such expirations, terminations, suspensions, or
modifications which individually or in the aggregate would not
constitute a Material Adverse Event, (v) any federal, state, or local
statute, regulation, or ordinance or judicial or administrative order
limiting or controlling the operations of any Company or any Guarantor
which has been issued or adopted hereafter and which is of material
adverse importance or effect in relation to the operation of any Company
or Guarantor, (vi) the receipt by any Company or any Guarantor of notice
of any violation or alleged violation of any Environmental Law, which
violation or alleged violation could individually or collectively with
other such violations or allegations, constitute a Material Adverse
Event, or (vii) (A) the occurrence of a Reportable Event that, alone or
TOGETHER WITH any other Reportable Event, could reasonably be expected
to result in liability of Borrower or any Company or Guarantor to the
PBGC in an aggregate amount exceeding $1,000,000; (B) any expressed
statement in writing on the part of the PBGC of its intention to
terminate any Employee Plan or Plans; (C) Borrower's or an ERISA
Affiliate's becoming obligated to file with the PBGC a notice of failure
to make a required installment or other payment with respect to an
Employee Plan; or (D) the receipt by Borrower or an ERISA Affiliate from
the sponsor of a Multiemployer Plan of either a notice concerning the
imposition of withdrawal liability in an aggregate amount exceeding
$1,000,000 or of the impending termination or reorganization of such
Multiemployer Plan.
(g) Promptly after any of the information or disclosures provided on
any of the Schedules delivered pursuant to this Agreement or any Annexes to
any of the Collateral Documents becomes outdated or incorrect in any
material respect, such revised or updated Schedule(s) or Annexes as may be
necessary or appropriate to update or correct such information or
disclosures; PROVIDED THAT, no deletions may be made to any Annexes
describing Collateral in any of the Collateral Documents unless approved by
Required Lenders.
(h) Promptly after preparation, true, correct, and complete copies of
all material reports or filings filed by or on behalf of any Company with
any Governmental Authority (including the FCC and the Securities and
Exchange Commission).
(i) Promptly after the filing thereof, a true, correct, and complete
copy of each FORM 10-K, FORM 10-Q, and FORM 8-K filed by or on behalf of
Borrower or any Company or any Guarantor with the Securities and Exchange
Commission.
(j) Promptly upon request therefor by Administrative Agent or
Lenders, such information (not otherwise required to be furnished under the
Loan Papers) respecting the business affairs, assets, and liabilities of
the Companies or the Guarantors, and such opinions, certifications, and
documents, in addition to those mentioned in this Agreement, as reasonably
requested.
(k) With respect to the post-closing requirements set forth on
SCHEDULE 7.1A, deliver, or cause to be delivered, to Administrative Agent
(or Collateral Agent in the case of Collateral Documents), all agreements,
documents, instruments, or other items listed on SCHEDULE 7.1A on or prior
to the date specified for delivery thereof on SCHEDULE 7.1A.
9.4 INSPECTIONS. Upon reasonable notice, the Companies and the Guarantors
shall allow Administrative Agent or any Lender (or their respective
Representatives) to inspect any of their properties,
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to review reports, files, and other records and to make and take away copies
thereof, to conduct tests or investigations, and to discuss any of their
affairs, conditions, and finances with other creditors, directors, officers,
employees, other representatives, and independent accountants of the
Companies or Guarantors, from time to time, during reasonable business hours.
9.5 TAXES. Each Company and each Guarantor (a) shall promptly pay when
due any and all Taxes OTHER THAN Taxes the applicability, amount, or validity of
which is being contested in good faith by lawful proceedings diligently
conducted, and against which reserve or other provision required by GAAP has
been made, and in respect of which levy and execution of any lien securing same
have been and continue to be stayed, (b) shall not, directly or indirectly, use
any portion of the proceeds of any Borrowing to pay the wages of employees
unless a timely payment to or deposit with the appropriate Governmental
Authorities of all amounts of Tax required to be deducted and withheld with
respect to such wages is also made, and (c) notify Lenders immediately if the
Internal Revenue Service or any other taxing authority commences or notifies any
Company or any Guarantor of its intention to commence an audit or investigation
with respect to any taxes of any kind due or alleged to be due from any Company
or any Guarantor.
9.6 PAYMENT OF OBLIGATIONS. Borrower shall pay the Obligation in
accordance with the terms and provisions of the Loan Papers. Each Company and
each Guarantor (a) shall promptly pay (or renew and extend) all of its material
obligations as the same become due (unless such obligations [other than the
Obligation or the Revolver/Acquisition Obligation] are being contested in good
faith by appropriate proceedings), and (b) shall not make any voluntary
prepayment of principal of, or interest on, any other Debt (other than the
Obligation or the Revolver/Acquisition Obligation), whether subordinate to the
Obligation or not or (ii) use proceeds from the Facilities to make any voluntary
prepayment of principal of, or interest on, or sinking fund payment in respect
of any Debt of any Company or any Guarantor. Borrower shall not make any
payment on any Subordinated Debt when it violates the subordination provisions
thereof.
9.7 MAINTENANCE OF EXISTENCE, ASSETS, AND BUSINESS. Except as otherwise
permitted by SECTION 9.25, each Company and each Guarantor shall at all times:
(a) maintain its existence and good standing in the jurisdiction of its
organization and its authority to transact business in all other jurisdictions
where the failure to so maintain its authority to transact business could be a
Material Adverse Event; (b) maintain all licenses, permits, and franchises
necessary for its business where the failure to so maintain could be a Material
Adverse Event; (c) keep all of its assets which are useful in and necessary to
its business in good working order and condition (ordinary wear and tear
excepted) and make all necessary repairs thereto and replacements thereof; and
(d) do all things necessary to obtain, renew, extend, and continue in effect all
Authorizations issued by the FCC or any applicable PUC which may at any time and
from time to time be necessary for the Companies and Guarantors to operate their
businesses in compliance with applicable Law, where the failure to so renew,
extend, or continue in effect could be a Material Adverse Event.
9.8 INSURANCE. The Companies and Guarantors shall, at their sole cost and
expense, keep and maintain the Collateral owned by such Company or Guarantor
insured for its actual cash value against loss or damage by fire, theft,
explosion, flood, and all other hazards and risks ordinarily insured against by
other owners or users of such properties in similar businesses of comparable
size and notify Agent promptly of any occurrence causing a material loss or
decline in value of the Collateral and the estimated (or actual, if available)
amount of such loss or decline. All policies of insurance on the Collateral
shall be in a form, with such deductibles, and with insurers recognized as
adequate by prudent business Persons in the same businesses as the Companies or
Guarantors and acceptable to Administrative Agent, and all
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such policies shall be in such amount as may be satisfactory to
Administrative Agent. On the Closing Date and thereafter as each policy is
renewed and extended, the Companies and Guarantors shall deliver to
Collateral Agent a certificate of insurance for each policy of insurance and
evidence of payment of all premiums therefor. Such policies of insurance and
the certificates evidencing the same shall contain an endorsement, in form
and substance acceptable to Collateral Agent, showing loss payable to
Collateral Agent for the benefit of Lenders and the Revolver/Acquisition
Lenders. Such endorsement, or an independent instrument furnished to
Collateral Agent, shall provide that the insurance companies will give
Collateral Agent at least thirty (30) days prior written notice before any
such policy or policies of insurance shall be altered or canceled and that no
act or default of any Company, any Guarantor, or any other Person shall
affect the Right of Collateral Agent to recover under such policy or policies
of insurance in case of loss or damage. Upon the payment by the insurer of
the proceeds of any such policy of insurance and if no Default has occurred
and is continuing, the Company or Guarantor so insured may retain such
insurance if such proceeds are used to repair or replace the property the
damage or destruction of which gave rise to the payment of such insurance
proceeds; PROVIDED, HOWEVER, that any insurance proceeds not used for repair
or replacement in accordance herewith, UNLESS paid as reimbursement of
expenses incurred and business losses suffered in connection with the loss or
damage to the Collateral, shall be paid to or retained by Collateral Agent
for application as a mandatory prepayment on the Obligation and the
Revolver/Acquisition Obligation in accordance with the Intercreditor
Agreement.
9.9 PRESERVATION AND PROTECTION OF RIGHTS. Each Company and each
Guarantor shall perform such acts and duly authorize, execute, acknowledge,
deliver, file, and record any additional agreements, documents, instruments, and
certificates as Administrative Agent, Collateral Agent, or Required Lenders may
reasonably deem necessary or appropriate in order to preserve and protect the
Rights of Administrative Agent and Lenders under any Loan Paper.
9.10 EMPLOYEE BENEFIT PLANS. Borrower shall not, directly or indirectly,
engage in any "PROHIBITED TRANSACTION" (as defined in SECTION 406 of ERISA or
SECTION 4975 of the Code), and the Companies, the Guarantors, and their
respective ERISA Affiliates shall not, directly or indirectly, (a) incur any
"ACCUMULATED FUNDING DEFICIENCY" as such term is defined in SECTION 302 of ERISA
with respect to any Employee Plan, (b) permit any Employee Plan to be subject to
involuntary termination proceedings pursuant to TITLE IV of ERISA, or (c) fully
or partially withdraw from any Multiemployer Plan, if such prohibited
transaction, accumulated funding deficiency, termination proceeding, or
withdrawal would result in liability on the part of any Company or any Guarantor
(individually or collectively) in excess of $1,000,000.
9.11 ENVIRONMENTAL LAWS. Each Company and each Guarantor shall (a) conduct
its business so as to comply with all applicable Environmental Laws and shall
promptly take corrective action to remedy any non-compliance with any
Environmental Law, (b) promptly investigate and remediate any known Release or
threatened Release of any Hazardous Substance on any property owned by any
Company or any Guarantor or at any facility operated by any Company or any
Guarantor to the extent and degree necessary to comply with Law and to assure
that any Release or threatened Release does not result in a substantial
endangerment to human health or the environment, and (c) establish and maintain
a management system designed to ensure compliance with applicable Environmental
Laws and minimize financial and other risks to each Company or Guarantor arising
under applicable Environmental Laws or as a result of environmentally-related
injuries to Persons or property.
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9.12 DEBT AND GUARANTIES.
(a) No Company or Guarantor shall, directly or indirectly, create,
incur, or suffer to exist any direct, indirect, fixed, or contingent
liability for any Debt, OTHER THAN:
(i) The Obligation;
(ii) The Revolver/Acquisition Obligation;
(iii) Debt incurred by Borrower under any Financial Hedge;
(iv) Debt between Companies;
(v) Debt of Borrower to Communications SO LONG AS such Debt is
unsecured, unguaranteed, and subordinate in right of payment to the
Obligation upon terms satisfactory to Administrative Agent; PROVIDED
THAT, repayments of such Debt may be made at such times, in such
amounts, for the purposes, and subject to the conditions, as specified
in SECTION 9.21(d); and
(vi) Debt of any Cellular Partnership Obligor owed to Borrower,
SO LONG AS (A) such Debt is evidenced by Cellular Partnership
Promissory Notes whose form and terms, including amortization
schedules, are acceptable to Administrative Agent; (B) such Cellular
Partnership Promissory Notes and all partnership interests of the
Companies in such Cellular Partnership Obligor are pledged or assigned
by the appropriate Companies to Collateral Agent, for the benefit of
Lenders and the Revolver/Acquisition Lenders, pursuant to appropriate
Collateral Documents; (C) each Cellular Partnership Obligor has
executed a Guaranty and has granted Liens in and to all its assets in
favor of Collateral Agent (for the benefit of Lenders and the
Revolver/Acquisition Lenders) by execution and delivery to Collateral
Agent of all Collateral Documents required by Collateral Agent; and
(D) such Cellular Partnership Obligor has delivered all such searches,
opinions, financing statements, and other documents reasonably
requested by Administrative Agent or Collateral Agent;
(vii) Trade Debt incurred in the ordinary course of business
for value received; and
(viii) Debt arising under Capital Leases not to exceed
$5,000,000 in the aggregate on any date of determination.
(b) No Company or Guarantor shall guarantee or assume or agree to
become liable in any way, either directly or indirectly, for any Debt or
liability of others, except (i) endorsements of checks or drafts in the
ordinary course of business and (ii) the obligations of the Companies and
Guarantors under the Guaranty.
9.13 LIENS. No Company or Guarantor will, directly or indirectly,
(a) enter into or permit to exist any arrangement or agreement which directly or
indirectly prohibits any Company or Guarantor from creating or incurring any
Lien on any of its assets, other than the Loan Papers or the Revolver/
Acquisition Loan Papers, or (b) create, incur, or suffer or permit to be created
or incurred or to exist any Lien upon any of its assets, EXCEPT:
49
(i) Pledges or deposits made to secure payment of worker's
compensation, or to participate in any fund in connection with worker's
compensation, unemployment insurance, pensions, or other social security
programs;
(ii) Good-faith pledges or deposits made to secure performance of
bids, tenders, insurance or other contracts (OTHER THAN for the repayment
of borrowed money), or leases, or to secure statutory obligations, surety
or appeal bonds, or indemnity, performance, or other similar bonds as all
such Liens arise in the ordinary course of business of the Companies and
Guarantors;
(iii) Encumbrances consisting of zoning restrictions, easements,
or other restrictions on the use of real property, none of which impair in
any material respect the use of such property by the Person in question in
the operation of its business, and none of which is violated by existing or
proposed structures or land use;
(iv) Liens of landlords or of mortgagees of landlords, arising solely
by operation of law, on fixtures and movable property located on premises
leased in the ordinary course of business;
(v) The following, SO LONG AS the validity or amount thereof is
being contested in good faith and by appropriate and lawful proceedings
diligently conducted, reserve or other appropriate provisions (if any)
required by GAAP shall have been made, levy and execution thereon have been
stayed and continue to be stayed, and they do not in the aggregate
materially detract from the value of the property of the Person in
question, or materially impair the use thereof in the operation of its
business: (i) claims and Liens for Taxes (other than Liens relating to
Environmental Laws or ERISA); (ii) claims and Liens upon, and defects of
title to, real or personal property, including any attachment of personal
or real property or other legal process prior to adjudication of a dispute
of the merits; and (iii) claims and Liens of mechanics, materialmen,
warehousemen, carriers, landlords, or other like Liens; and
(vi) Statutory Liens on the Participation Certificates held by
Borrower to secure Borrower's obligations to CoBank, ACB, hereunder, SO
LONG AS the proceeds of such Participation Certificates (as and when
secured) shall be shared by CoBank, ACB among Lenders.
9.14 TRANSACTIONS WITH AFFILIATES. No Company or Guarantor shall enter
into any material transaction with any of its Affiliates (excluding transactions
among or between Companies), OTHER THAN transactions in the ordinary course of
business and upon fair and reasonable terms not materially less favorable than
such Company or Guarantor could obtain or could become entitled to in an
arm's-length transaction with a Person that was not its Affiliate.
9.15 COMPLIANCE WITH LAWS AND DOCUMENTS. No Company or Guarantor shall
violate the provisions of any Laws applicable to it, including, without
limitation, all rules and regulations promulgated by the FCC or any applicable
PUC, or any material written or oral agreement, contract, commitment, or
understanding to which it is a party, if such violation alone, or when
aggregated with all other such violations, could be a Material Adverse Event; no
Company or Guarantor shall violate the provisions of its charter, bylaws, or
partnership agreement, or modify, repeal, replace, or amend any provision of its
charter, bylaws, or partnership agreement, if such action could adversely affect
the Rights of Lenders.
9.16 PERMITTED ACQUISITIONS, SUBSIDIARY GUARANTIES, AND COLLATERAL
DOCUMENTS. In connection with each Permitted Acquisition, Borrower shall
deliver, or cause to be delivered to,
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Administrative Agent each of the items described on SCHEDULE 7.2, on or
before the date specified on such Schedule for each such item. Borrower
shall cause each Subsidiary that becomes a Subsidiary of any Company after
the Closing Date (whether as a result of acquisition, merger, creation, or
otherwise), (a) to execute a Guaranty on the date such entity becomes a
Subsidiary of a Company and promptly deliver (but in no event later than 10
days following consummation of such creation, acquisition, or merger) such
Guaranty to Collateral Agent and (b) to execute and deliver to Collateral
Agent all required Collateral Documents creating Liens in favor of Collateral
Agent on all the assets of such Subsidiary.
9.17 ASSIGNMENT. No Company or Guarantor shall assign or transfer any of
its Rights, duties, or obligations under any of the Loan Papers.
9.18 FISCAL YEAR AND ACCOUNTING METHODS. No Company or Guarantor will
change its fiscal year for book accounting purposes or its method of accounting,
OTHER THAN (a) immaterial changes in methods or as required by GAAP, or (b) in
connection with a Permitted Acquisition, such changes to the newly-acquired
entity so as to conform its fiscal year and its method of accounting to those of
the Companies.
9.19 GOVERNMENT REGULATIONS. No Company or Guarantor will conduct its
business in such a way that it will become subject to regulation under the
INVESTMENT COMPANY ACT OF 1940, as amended, the PUBLIC UTILITY HOLDING COMPANY
ACT OF 1935, as amended, or any other Law (other than Regulations G, T, U, and X
of the Board of Governors of the Federal Reserve System and the requirements of
any PUC or public service commission) which regulates the incurrence of Debt.
9.20 LOANS, ADVANCES, AND INVESTMENTS. No Company or Guarantor shall make
any loan, advance, extension of credit, or capital contribution to, make any
investment in, or purchase or commit to purchase any stock or other securities
or evidences of Debt of, or interests in, any other Person, OTHER THAN
(a) readily marketable, direct, full faith and credit obligations of the United
States of America, or obligations guaranteed by the full faith and credit of the
United States of America, maturing within not more than one year from the date
of acquisition; (b) short term certificates of deposit and time deposits, which
mature within one year from the date of issuance and which are fully insured by
the Federal Deposit Insurance Corporation; (c) commercial paper maturing in
365 days or less from the date of issuance and rated either "P-1" by Xxxxx'x
Investors Service, Inc. ("MOODY'S"), or "A-1" by Standard and Poor's Rating
Group (a division of XxXxxx-Xxxx, Inc., "S&P"); (d) debt instruments of a
domestic issuer which mature in one year or less and which are rated "A" or
better by Moody's or S&P on the date of acquisition of such investment;
(e) demand deposit accounts which are maintained in the ordinary course of
business; (f) loans, advances, extensions of credit, capital contributions, and
other investments between Companies; (g) loans or advances to Cellular
Partnership Obligors, SO LONG AS such Debt incurrence by the Cellular
Partnership Obligor is permitted pursuant to SECTION 9.12(a)(vi) and each of the
conditions for such Debt incurrence as set forth in SECTION 9.12(a)(vi) have
been satisfied; (h) Permitted Acquisitions; (i) trade accounts receivable which
are for goods furnished or services rendered in the ordinary course of business
and are payable in accordance with customary trade terms; (i) other investments
or commitments to make investments in cellular, local exchange, and PCS Systems
("SPECIAL INVESTMENTS"), SO LONG AS each such Special Investment does not exceed
the following limitations, determined as of the date such Special Investment is
to be made (each, an "INVESTMENT DATE") and after giving effect to such Special
Investment, and SO LONG AS on or prior to the Investment Date for each such
Special Investment, Borrower provides to Administrative Agent a certificate and
related PRO FORMA calculations demonstrating and confirming compliance with the
following limitations:
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(i) If the Senior Leverage Ratio on such Investment Date is less than
6.00 to 1.0, (A) the aggregate amount of Special Investments made during
such calendar year shall not exceed $5,000,000 and (B) the aggregate amount
of Special Investments made from the Effective Date to and including the
Investment Date shall not exceed the LESSER of (x) $25,000,000 or (y) the
SUM of $15,000,000 plus 100% of the Net Cash Proceeds received by Borrower
from any Equity Issuance; or
(ii) If the Senior Leverage Ratio on such Investment Date is greater
than or equal to 6.00 to 1.0, (A) the aggregate amount of Special
Investments made during such calendar year shall not exceed the SUM of
$2,500,000 and (B) the aggregate amount of Special Investments made from
the Effective Date to and including the Investment Date shall not exceed
the LESSER of (x) $25,000,000 or (y) the SUM of $7,500,000 plus 50% of the
Net Cash Proceeds received by Borrower from any Equity Issuance; and
(j) at such time as CoBank, ACB is a Lender hereunder, the Participation
Certificates in CoBank, ACB required to be acquired and maintained by Borrower
pursuant to SECTION 9.32.
9.21 DISTRIBUTIONS AND RESTRICTED PAYMENTS. No Company or Guarantor may
directly or indirectly declare, make, or pay any Restricted Payment, other than:
(a) Distributions declared, made, or paid by Borrower wholly in the
form of its capital stock;
(b) Distributions by any Company or Guarantor to Borrower or any
other Company;
(c) If in any fiscal year Borrower generates Free Cash Flow, then
Borrower may make Restricted Payments during the following fiscal year, SO
LONG AS no Default or Potential Default exists and SO LONG AS the aggregate
amount of all such Restricted Payments under this CLAUSE (c) in any fiscal
year does not exceed the following limitations corresponding to the Senior
Leverage Ratio determined as of the date such Restricted Payment is to be
made (the "PAYMENT DATE"), after giving pro forma effect to the Restricted
Payment, and SO LONG AS on or prior to the Payment Date for any such
Restricted Payment, Borrower provides Administrative Agent with a
certificate and related PRO FORMA calculations demonstrating and confirming
compliance with the following limitations (and, to the extent requested by
Administrative Agent, evidence that no approval of any Governmental
Authority is required (which has not been obtained) in connection with such
Special Investment or the financing thereof):
(i) If the Senior Leverage Ratio is less than 5.00 to 1.0, then
the aggregate amount of permitted Restricted Payments under this
CLAUSE (c) may not exceed 100% of the Free Cash Flow (as calculated
for the immediately preceding fiscal year); or
(ii) If the Senior Leverage Ratio is greater than or equal to
5.00 to 1.0, then the aggregate amount of permitted Restricted
Payments under this CLAUSE (c) may not exceed 50% of the Free Cash
Flow (as calculated for the immediately preceding fiscal year); and
(d) SO LONG AS no Triggering Event has occurred or is created thereby
(as determined on a pro forma basis), Distributions made after January 15,
2003, by Borrower to Communications in amounts sufficient (when aggregated
with the amounts of all other loans, advances, or dividends
52
for such purposes from all other Subsidiaries of Communications) to pay
regularly-scheduled cash distributions or cash interest payments on the
Preferred Stock and Exchange Debentures, if any; PROVIDED, HOWEVER, in
the event that any Triggering Event has occurred and is continuing,
Borrower may declare and pay such dividends to Communications, or make
loans or advances to Communications, subject to the following terms,
conditions, and limitations: (i) the amount of any such dividends,
loans, or advances (when aggregated with the amounts of all other loans,
advances, or dividends for such purposes from all other Subsidiaries of
Communications) shall not exceed (A) amounts then required to make any
payment of cash dividends on the Preferred Stock or cash interest on the
Exchange Debentures, if issued, which payments are past due, by reason
of such Triggering Event, and (B) the next regularly scheduled payment
of the cash dividends on the Preferred Stock or cash interest on the
Exchange Debenture; (ii) such Triggering Event (from the date of notice
of the existence of the earliest such Triggering Event if more than one
exists) has continued for 180 days and has not been cured or waived;
(iii) such Triggering Event is not a Default set forth in SECTION 10.1,
10.3, or 10.9 hereof; and (iv) Lenders have not demanded payment in full
of all obligations due and owing by Borrower under this Agreement and
the Loan Papers; PROVIDED FURTHER, that so long as any Debt is owed from
Borrower to Communications, any Restricted Payment permitted under this
SECTION 9.21(d) shall be made as a repayment of such Debt.
Notwithstanding the foregoing, Restricted Payments and Distributions are
permitted hereunder only to the extent such Restricted Payment or Distribution
is made in accordance with applicable Law and constitutes a valid, non-voidable
transaction.
9.22 RESTRICTIONS ON SUBSIDIARIES. No Subsidiary of Borrower nor any
Guarantor shall enter into or permit to exist any material arrangement or
agreement (other than the Loan Papers) which directly or indirectly prohibits
any such Subsidiary from (a) declaring, making, or paying, directly or
indirectly, any Distribution to Borrower or any other Company, (b) paying any
Debt owed to Borrower or any other Company, (c) making loans, advances, or
investments to Borrower or any other Company, or (d) transferring any of its
property or assets to Borrower or any other Company.
9.23 SALE OF ASSETS. No Company or Guarantor shall sell, assign, transfer,
or otherwise dispose of any of its assets, OTHER THAN (a) sales of inventory in
the ordinary course of business, (b) the sale, discount, or transfer of
delinquent accounts receivable in the ordinary course of business for purposes
of collection, (c) occasional sales of immaterial assets for consideration not
less than the fair market value thereof, (d) dispositions of obsolete assets,
(e) sale, leases, or other disposition among Companies or from a Guarantor to a
Company; and (f) if no Default or Potential Default then exists or arises as a
result thereof, sales of other assets in the ordinary course of business;
PROVIDED THAT, the fair market value of all assets sold (x) in any calendar year
does not exceed $7,500,000 in the aggregate, and (y) prior to the Termination
Date does not exceed, in the aggregate, more than 49% of the fair market value
of the Companies' assets as determined on the Closing Date.
9.24 SALE-LEASEBACK FINANCINGS. No Company or Guarantor will enter into
any sale-leaseback arrangement with any Person pursuant to which such Company or
Guarantor shall lease any asset (whether now owned or hereafter acquired) if
such asset has been or is to be sold or transferred by any Company to any other
Person.
9.25 MERGERS AND DISSOLUTIONS; SALE OF CAPITAL STOCK. No Company or
Guarantor will, directly or indirectly, merge or consolidate with any other
Person, other than (a) as a result of a Permitted Acquisition, (b) mergers or
consolidations involving Borrower if Borrower is the surviving entity,
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(c) mergers among Wholly-owned Companies; PROVIDED THAT, in any merger involving
Borrower (including a Permitted Acquisition effected as a merger), Borrower must
be the surviving entity, and, in any merger involving any other Company
(including a Permitted Acquisition effected as a merger), a Company must be the
surviving entity. No Company or Guarantor shall liquidate, wind up, or dissolve
(or suffer any liquidation or dissolution), other than liquidations, wind ups,
or dissolutions incident to mergers permitted under this SECTION 9.25. No
Company or Guarantor may sell, assign, lease, transfer, or otherwise dispose of
the capital stock (or other ownership interests) of any other Company, EXCEPT
for sales, leases, transfers, or other such distributions to another Company.
9.26 NEW BUSINESS. No Company or Guarantor will, directly or indirectly,
permit or suffer to exist any material change in the type of businesses in which
it is engaged from the businesses of the Companies and Guarantors as conducted
on the Closing Date.
9.27 FINANCIAL XXXXXX. The Companies shall, within 60 days from the date
hereof, enter into Financial Xxxxxx in a form and upon terms acceptable to
Administrative Agent, issued by one or more Lenders or an institution acceptable
to Administrative Agent with a duration of a period of at least two years, with
respect to at least fifty percent (50%) of the Total Debt of the Companies
outstanding on the Closing Date; PROVIDED, HOWEVER, that (a) the protected rate
shall be no greater than 2.5% above the all-in rate on the Closing Date hereof;
(b) to the extent any Lender issues a Financial Hedge in compliance with the
requirements of this SECTION 9.27, such Lender shall be granted a Lien in the
Collateral to the extent of such Lender's credit exposure under such Financial
Hedge which is PARI PASSU with that of Collateral Agent on behalf of Lenders and
the Revolver/Acquisition Lenders; (c) each such Lender issuing a Financial Hedge
shall calculate its credit exposure in a reasonable and customary manner; and
(d) all documentation for such Financial Hedge shall conform to ISDA standards
and must be acceptable to Administrative Agent and Collateral Agent with respect
to intercreditor issues.
9.28 AFFILIATE SUBORDINATION AGREEMENTS. The Companies and Guarantors
shall, simultaneously with the creation of any and all future Debt of any
Company or any Guarantor to any one or more Affiliates, cause the appropriate
Affiliate or Affiliates to execute and deliver to Administrative Agent an
agreement, substantially in the form of EXHIBIT H, subordinating the payment of
such Debt to the payment of the Obligation.
9.29 AMENDMENTS TO DOCUMENTS. No Company or Guarantor shall (a) amend or
permit any amendments to any Company's Articles of Incorporation or Bylaws, or
any Partnership Agreement of any Cellular Partnership Obligor or any Company
that is a Cellular Partnership as in effect on the date of this Agreement, if
such action could adversely affect the Rights of Lenders; or (b) amend any
existing credit arrangement or enter into any new credit arrangement (to the
extent permitted by the Loan Papers), if such amended or new credit arrangements
contain any provisions which are materially more restrictive (as reasonably
determined by Administrative Agent) than the provisions of the Loan Papers.
9.30 FINANCIAL COVENANTS. As calculated on a consolidated basis for the
Companies:
(a) SENIOR LEVERAGE RATIO. Borrower shall never permit the Senior
Leverage Ratio of the Companies, determined on a quarterly basis at the end
of each fiscal quarter of the Companies, to be greater than the ratio shown
in the table below which corresponds to both the applicable period of
determination and the Companies Operating Cash Flow for the most-recently
ended Rolling Period:
54
-------------------------------------------------------------------------------
SENIOR LEVERAGE RATIO FOR THE APPLICABLE PERIOD
OPERATING CASH --------------------------------------------------------------
FLOW FOR CLOSING TO 10-1-98 TO 7-1-99 TO 1-1-00 TO 1-1-01 AND
ROLLING PERIOD 9-30-98 6-30-99 12-31-99 12-31-00 THEREAFTER
-------------------------------------------------------------------------------
Equal to or 7.5:1.0 7.0:10 6.5:10 5.5:10 4.5:10
less than
$20,000,000
-------------------------------------------------------------------------------
Greater than 8.0:10 7.5:1.0 7.0:1.0 5.5:1.0 5.0:1.0
$20,000,000
but less than
or equal to
$25,000,000
-------------------------------------------------------------------------------
Greater than 8.5:1.0 8.0:1.0 7.5:1.0 6.5:1.0 5.5:1.0
$25,000,000
-------------------------------------------------------------------------------
PROVIDED THAT, the ratios corresponding to Operating Cash Flow in excess of
$20,000,000 or in excess of $25,000,000 (as the case may be) shall only be
applicable after Borrower has delivered to Administrative Agent, in form
and substance satisfactory to Administrative Agent, a certificate
(i) demonstrating pro forma compliance with the covenants of this Agreement
and (ii) providing projections to the Termination Date demonstrating
Borrower's ability to remain in compliance with the Loan Papers and to
amortize the Facilities, as scheduled.
(b) PRO FORMA DEBT SERVICE COVERAGE. Borrower shall never permit the
ratio of the Operating Cash Flow of the Companies to the Pro Forma Debt
Service of the Companies determined on a quarterly basis at the end of each
fiscal quarter of the Companies to be less than or equal to 1.25 to 1.0.
(c) INTEREST COVERAGE. Borrower shall never permit the ratio of
(i) the Operating Cash Flow of the Companies for any fiscal quarter to
(ii) the cash Interest Expense of the Companies determined on a quarterly
basis at the end of each fiscal quarter of the Companies for the Rolling
Period then-ended, to be less than or equal to (A) 1.75 to 1.0, from the
Closing Date through December 31, 1998, and (B) 2.00 to 1.0, after December
31, 1998.
(d) FIXED CHARGE COVERAGE RATIO. On and after January 1, 1999,
Borrower shall never permit the Companies' Fixed Charge Coverage Ratio,
determined on a quarterly basis on the last day of each fiscal quarter of
the Companies, to be less than or equal to 1.00 to 1.0.
(e) CAPITAL EXPENDITURES. Borrower shall not permit Capital
Expenditures from January 1, 1998 through December 31, 1998 to exceed 110%
of the amount budgeted for capital expenditures in the Budget for 1998.
9.31 YEAR 2000. All of the material computer software, computer firmware,
computer hardware (whether general or special purpose), and other similar or
related items of automated, computerized, and/or software systems that are used
or relied on by the Companies in the conduct of their respective businesses will
not malfunction, will not cease to function, will not generate incorrect data,
and will not produce incorrect results when processing, providing, and/or
receiving (a) date-related data into and between the twentieth and twenty-first
centuries and (b) date-related data in connection with any valid date in the
twentieth and twenty-first centuries.
55
9.32 COBANK PARTICIPATION. At all times during which CoBank, ACB
("COBANK") is a Lender hereunder, Borrower shall acquire and maintain
participation certificates in CoBank (the "PARTICIPATION CERTIFICATES") in such
amounts and at such times as CoBank may from time to time require in accordance
with its Bylaws and Capital Plan (as each may be amended from time to time);
PROVIDED, HOWEVER, that the maximum amount of Participation Certificates that
Borrower may be required to purchase may not exceed the maximum amount permitted
by CoBank's Bylaws on the date hereof. The rights and obligations of the
parties with respect to the Participation Certificates and any other patronage
or other distributions shall be governed by CoBank's Bylaws.
SECTION 10 DEFAULT. The term "DEFAULT" means the occurrence of any one or
more of the following events:
10.1 PAYMENT OF OBLIGATION. The failure or refusal of any Company or
Guarantor to pay (a) the Obligation when the same becomes due (whether by its
terms, by acceleration, or as otherwise provided in the Loan Papers); and
(b) the indemnifications and reimbursement obligations provided for in the Loan
Papers after demand therefor.
10.2 COVENANTS. The failure or refusal of Borrower (and, if applicable,
any other Company or Guarantor) to punctually and properly perform, observe, and
comply with:
(a) Any covenant, agreement, or condition contained in SECTIONS 9.1,
9.3, 9.6, 9.12, 9.13, 9.14, 9.16, 9.17, 9.20 through 9.25, and 9.30; and
(b) Any other covenant, agreement, or condition contained in any Loan
Paper (OTHER THAN the covenants to pay the Obligation set forth in
SECTION 10.1 and the covenants in SECTION 10.2(a)), and such failure or
refusal continues for 20 days.
10.3 DEBTOR RELIEF. Borrower, Communications, any other Company, or
Guarantor or any Subsidiary of Communications (a) shall not be Solvent,
(b) fails to pay its Debts generally as they become due, (c) voluntarily seeks,
consents to, or acquiesces in the benefit of any Debtor Relief Law, OTHER THAN
as a creditor or claimant, or (d) becomes a party to or is made the subject of
any proceeding provided for by any Debtor Relief Law, OTHER THAN as a creditor
or claimant, that could suspend or otherwise adversely affect the Rights of
Administrative Agent or any Lender granted in the Loan Papers (UNLESS, in the
event such proceeding is involuntary, the petition instituting same is dismissed
within 30 days after its filing).
10.4 JUDGMENTS AND ATTACHMENTS. Any Company or Guarantor fails, within
60 days after entry, to pay, bond, or otherwise discharge any judgment or order
for the payment of money in excess of $1,000,000 (individually or collectively)
or any warrant of attachment, sequestration, or similar proceeding against any
Company's assets having a value (individually or collectively) of $1,000,000
which is not stayed on appeal.
10.5 GOVERNMENT ACTION. (a) A final non-appealable order is issued by any
Governmental Authority, including, but not limited to, the FCC or the United
States Justice Department, seeking to cause any Company or Guarantor to divest a
significant portion of its assets pursuant to any antitrust, restraint of trade,
unfair competition, industry regulation, or similar Laws, or (b) any
Governmental Authority shall condemn, seize, or otherwise appropriate, or take
custody or control of all or any substantial portion of the assets of any
Company or Guarantor.
56
10.6 MISREPRESENTATION. Any representation or warranty made by any Company
or Guarantor contained in any Loan Paper shall at any time prove to have been
incorrect in any material respect when made.
10.7 CHANGE OF MANAGEMENT. More than one of the three members of the
Executive Management Team of Communications on the Closing Date cease to hold
positions on the Executive Management Team of Communications.
10.8 CHANGE OF CONTROL. If Communications ceases to own 100% of the voting
control (directly or indirectly) of Borrower and the other Companies.
10.9 AUTHORIZATIONS. (a) Any Authorization necessary for the ownership or
operations of any Company or Guarantor shall expire, and on or prior to such
expiration, the same shall not have been renewed or replaced by another
Authorization authorizing substantially the same operations by such Company; or
(b) any Authorization necessary for the ownership or operations of any Company
or Guarantor shall be canceled, revoked, terminated, rescinded, annulled,
suspended, or modified in a materially adverse respect, or shall no longer be in
full force and effect, or the grant or the effectiveness thereof shall have been
stayed, vacated, reversed, or set aside, (c) Borrower or any other Company or
Guarantor is required by any Governmental Authority to halt construction or
operations under any Authorization and such action shall continue uncorrected
for thirty (30) days after the applicable entity has received notice thereof; or
(d) if any Governmental Authority shall make any other final non-appealable
determination the effect of which would be to affect materially and adversely
the operations of Borrower, or any other Company or Guarantor as now conducted.
10.10 DEFAULT UNDER OTHER DEBT AND AGREEMENTS. (a) The occurrence of a
"DEFAULT" under the Revolver/Acquisition Agreement; (b) any Company or Guarantor
fails to pay when due (after lapse of any applicable grace periods) any Debt of
such Company or Guarantor (other than the Obligation or the Revolver/Acquisition
Obligation) in excess (individually or collectively) of $1,000,000; (c) any
default exists under any material written or oral agreement, contract,
commitment, or understanding to which a Company or Guarantor is a party; or (d)
the occurrence of an "EVENT OF DEFAULT" under the Third Amended and Restated
Credit Agreement dated of even date herewith, among Xxxxxx Operating Company, as
Borrower, CoreStates Bank, N.A., as Administrative Agent, NationsBank of Texas,
N.A., as Syndication Agent, Toronto Dominion (Texas), Inc., as Documentation
Agent, and certain Lenders party thereto (as the same may be amended, modified,
restated, or supplemented from time to time).
10.11 EMPLOYEE BENEFIT PLANS. (a) A "REPORTABLE EVENT" or "REPORTABLE
EVENTS," or a failure to make a required installment or other payment (within
the meaning of SECTION 412(n)(1) of the Code), shall have occurred with respect
to any Employee Plan or Plans that is expected to result in liability of
Borrower to the PBGC or to a Plan in an aggregate amount exceeding $1,000,000
and, within 30 days after the reporting of any such Reportable Event to
Administrative Agent or after the receipt by Administrative Agent of a statement
required pursuant to SECTION 8.3(d) hereof, Administrative Agent shall have
notified Borrower in writing that (i) Required Lenders have made a reasonable
determination that, on the basis of such Reportable Event or Reportable Events
or the failure to make a required payment, there are grounds under TITLE IV of
ERISA for the termination of such Employee Plan or Plans by the PBGC, or the
appointment by the appropriate United States district court of a trustee to
administer such Employee Plan or Plans or the imposition of a lien pursuant to
SECTION 412(n) of the Code in favor of an Employee Plan and (ii) as a result
thereof a Default exists hereunder; or (b) Borrower or any ERISA Affiliate has
provided to any affected party a 60-day notice of intent to terminate an
Employee Plan pursuant to a distress termination in accordance with
SECTION 4041(c) of ERISA if the liability expected to be incurred as a result
57
of such termination will exceed $1,000,000; or (c) a trustee shall be
appointed by a United States district court to administer any such Employee
Plan; or (d) the PBGC shall institute proceedings (including giving notice of
intent thereof) to terminate any such Employee Plan; or (e)(i) Borrower or
any ERISA Affiliate shall have been notified by the sponsor of a
Multiemployer Plan that it has incurred withdrawal liability (within the
meaning of SECTION 4201 of ERISA) to such Multiemployer Plan, (ii) Borrower
or such ERISA Affiliate does not have reasonable grounds for contesting such
withdrawal liability or is not contesting such withdrawal liability in a
timely and appropriate manner and (iii) the amount of such withdrawal
liability specified in such notice, when aggregated with all other amounts
required to be paid to Multiemployer Plans in connection with withdrawal
liabilities (determined as of the date or dates of such notification),
exceeds $1,000,000; or (f) Borrower or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer Plan
is in reorganization or is being terminated, within the meaning of TITLE IV
of ERISA, if solely as a result of such reorganization or termination the
aggregate annual contributions of Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or have been or are being
terminated have been or will be increased over the amounts required to be
contributed to such Multiemployer Plans for their most recently completed
plan years by an amount exceeding $1,000,000.
10.12 VALIDITY AND ENFORCEABILITY OF LOAN PAPERS. Any Loan Paper
shall, at any time after its execution and delivery and for any reason, cease to
be in full force and effect in any material respect or be declared to be null
and void (other than in accordance with the terms hereof or thereof) or the
validity or enforceability thereof be contested by any Company or Guarantor
party thereto or any Company or Guarantor shall deny in writing that it has any
or any further liability or obligations under any Loan Paper to which it is a
party.
10.13 MATERIAL ADVERSE EFFECT. If any event or condition shall exist
which could reasonably be expected to be a Material Adverse Event with respect
to the business, operations, properties, or financial positions of the Borrower,
Communications, any Guarantor, or any of their respective Subsidiaries.
10.14 ENVIRONMENTAL LIABILITY. If any event or condition shall occur
or exist with respect to any activity or substance regulated under the
Environmental Law and as a result of such event or condition, any Company shall
have incurred or in the opinion of the banks be reasonably likely to incur a
liability in excess of $3,000,000 liability during any consecutive twelve (12)
month period.
10.15 PLEDGED STOCK. If the Collateral Agent ceases to hold (for the
benefit of Lenders) 100% of the issued and outstanding shares of common stock of
the Companies as Collateral.
10.16 DISSOLUTION. Borrower, Communications, or any other Company or
Guarantor shall dissolve, liquidate, or otherwise terminate their existence.
10.17 PAYMENT OF CERTAIN OTHER AGREEMENTS. The payment directly or
indirectly (including, without limitation, any payment in respect of any sinking
fund, defeasance, redemption, or payment of any dividend or distribution) by any
Company or Guarantor of any amount of the Communications Bond Debt, any
Subordinated Debt, any Exchange Debenture, or the Preferred Stock in a manner or
at a time during which such payment is not permitted under the terms of the Loan
Papers, the Exchange Debenture Indenture, the Certificate of Designation for the
Preferred Stock, or under any instrument or document evidencing or creating the
Communications Bond Debt or Subordinated Debt, including, without limitation,
any subordination provisions set forth therein.
58
10.18 DEFAULT OR ACCELERATION UNDER CERTAIN OTHER AGREEMENTS. (i) The
occurrence of any "DEFAULT" or "EVENT OF DEFAULT" or other breach which remains
uncured on any date of determination under or with respect to the Communications
Bond Debt, the Exchange Debentures, the Preferred Stock, or any agreement
creating or evidencing any Subordinated Debt; (ii) the trustee with respect to,
or any holder of, the Communications Bond Debt, the Exchange Debentures, the
Preferred Stock, or any Subordinated Debt shall effectively declare all or any
portion of that Debt or obligation thereunder due and payable prior to the
stated maturity thereof; or (iii) the Subordinated Debt, the Communications Bond
Debt, or Indebtedness or obligations under the Exchange Debentures or the
Preferred Stock becomes due before its stated maturity by acceleration of the
maturity thereof.
10.19 REDEMPTION OF CERTAIN OTHER DEBT OR OBLIGATIONS. If an event
shall occur, including, without limitation, a "CHANGE IN CONTROL" as defined in
any documents evidencing or creating the Communications Bond Debt, the Exchange
Debentures, the Preferred Stock, or any agreement evidencing or creating the
Subordinated Debt, and (i) the trustee or the holders of any such Debt or
obligation shall initiate notice to request or require (or any Company or
Guarantor shall automatically be so required) to redeem or repurchase such Debt
or obligation, or (ii) any Company or Guarantor shall initiate notice to holders
of the Subordinated Debt or the holders of any Communications Bond Debt,
Preferred Stock, or Exchange Debentures, in connection with a redemption of any
Debt or obligation arising under such agreements or instruments.
SECTION 11 RIGHTS AND REMEDIES.
11.1 REMEDIES UPON DEFAULT.
(a) If a Default exists under SECTION 10.3(c) or 10.3(d), the
commitment to extend credit hereunder shall automatically terminate and the
entire unpaid balance of the Obligation shall automatically become due and
payable without any action or notice of any kind whatsoever.
(b) If any Default exists, Administrative Agent may (and, subject to
the terms of SECTION 12, shall upon the request of Required Lenders) or
Required Lenders may, do any one or more of the following: (i) if the
maturity of the Obligation has not already been accelerated under
SECTION 11.1(a), declare the entire unpaid balance of the Obligation, or
any part thereof, immediately due and payable, whereupon it shall be due
and payable; (ii) terminate the commitments of Lenders to extend credit
hereunder; (iii) reduce any claim to judgment; (iv) to the extent permitted
by Law, exercise (or request each Lender to, and each Lender shall be
entitled to, exercise) the Rights of offset or banker's Lien against the
interest of Borrower in and to every account and other property of Borrower
which are in the possession of Administrative Agent or any Lender to the
extent of the full amount of the Obligation (to the extent permitted by
Law, Borrower being deemed directly obligated to each Lender in the full
amount of the Obligation for such purposes); and (v) exercise any and all
other legal or equitable Rights afforded by the Loan Papers, the Laws of
the State of Texas, or any other applicable jurisdiction as Administrative
Agent shall deem appropriate, or otherwise, including, but not limited to,
the Right to bring suit or other proceedings before any Governmental
Authority either for specific performance of any covenant or condition
contained in any of the Loan Papers or in aid of the exercise of any Right
granted to Administrative Agent or any Lender in any of the Loan Papers.
11.2 COMPANY WAIVERS. To the extent permitted by Law, the Companies and
Guarantors hereby waive presentment and demand for payment, protest, notice of
intention to accelerate, notice of acceleration, and notice of protest and
nonpayment, and agree that their respective liability with respect
59
to the Obligation (or any part thereof) shall not be affected by any renewal
or extension in the time of payment of the Obligation (or any part thereof),
by any indulgence, or by any release or change in any security for the
payment of the Obligation (or any part thereof).
11.3 PERFORMANCE BY ADMINISTRATIVE AGENT. If any covenant, duty, or
agreement of any Company or Guarantor is not performed in accordance with the
terms of the Loan Papers, after the occurrence and during the continuance of a
Default, Administrative Agent or Collateral Agent may, at their option (but
subject to the approval of Required Lenders), perform or attempt to perform such
covenant, duty, or agreement on behalf of such Company or Guarantor. In such
event, any amount expended by Administrative Agent or Collateral Agent in such
performance or attempted performance shall be payable by the Companies and
Guarantors, jointly and severally, to Administrative Agent on demand, shall
become part of the Obligation, and shall bear interest at the Default Rate from
the date of such expenditure by Administrative Agent or Collateral Agent until
paid. Notwithstanding the foregoing, it is expressly understood that
Administrative Agent and Collateral Agent do not assume, and shall never have,
except by their express written consent, any liability or responsibility for the
performance of any covenant, duty, or agreement of any Company or any Guarantor.
11.4 DELEGATION OF DUTIES AND RIGHTS. Lenders may perform any of their
duties or exercise any of their Rights under the Loan Papers by or through their
respective Representatives.
11.5 NOT IN CONTROL. Nothing in any Loan Paper shall, or shall be deemed
to (a) give any Agent or any Lender the Right to exercise control over the
assets (including real property), affairs, or management of any Company or any
Guarantor, (b) preclude or interfere with compliance by any Company or any
Guarantor with any Law, or (c) require any act or omission by any Company or any
Guarantor that may be harmful to Persons or property. Any "MATERIAL ADVERSE
EVENT" or other materiality qualifier in any representation, warranty, covenant,
or other provision of any Loan Paper is included for credit documentation
purposes only and shall not, and shall not be deemed to, mean that any Agent or
any Lender acquiesces in any non-compliance by any Company or Guarantor with
any Law or document, or that any Agent or any Lender does not expect the
Companies or Guarantors to promptly, diligently, and continuously carry out all
appropriate removal, remediation, and termination activities required or
appropriate in accordance with all Environmental Laws. The Agents and the
Lenders have no fiduciary relationship with or fiduciary duty to Borrower or any
Company or Guarantor arising out of or in connection with the Loan Papers, and
the relationship between the Agents and the Lenders, on the one hand, and
Borrower, the Companies, and Guarantors, on the other hand, in connection with
the Loan Papers is solely that of debtor and creditor. The power of the Agents,
and Lenders under the Loan Papers is limited to the Rights provided in the Loan
Papers, which Rights exist solely to assure payment and performance of the
Obligation and may be exercised in a manner calculated by the Agents, and
Lenders in their respective good faith business judgment.
11.6 COURSE OF DEALING. The acceptance by Administrative Agent or Lenders
at any time and from time to time of partial payment on the Obligation shall not
be deemed to be a waiver of any Default then existing. No waiver by
Administrative Agent, Required Lenders, or Lenders of any Default shall be
deemed to be a waiver of any other then-existing or subsequent Default. No
delay or omission by Administrative Agent, Required Lenders, or Lenders in
exercising any Right under the Loan Papers shall impair such Right or be
construed as a waiver thereof or any acquiescence therein, nor shall any single
or partial exercise of any such Right preclude other or further exercise
thereof, or the exercise of any other Right under the Loan Papers or otherwise.
60
11.7 CUMULATIVE RIGHTS. All Rights available to Administrative Agent and
Lenders under the Loan Papers are cumulative of and in addition to all other
Rights granted to Administrative Agent and Lenders at law or in equity, whether
or not the Obligation is due and payable and whether or not Administrative Agent
or Lenders have instituted any suit for collection, foreclosure, or other action
in connection with the Loan Papers.
11.8 APPLICATION OF PROCEEDS. Any and all proceeds ever received by
Administrative Agent or Lenders from the exercise of any Rights pertaining to
the Obligation shall be applied to the Obligation in the order and manner set
forth in SECTION 3.11.
11.9 CERTAIN PROCEEDINGS. Borrower will promptly execute and deliver, or
cause the execution and delivery of, all applications, certificates,
instruments, registration statements, and all other documents and papers
Administrative Agent or Lenders may reasonably request in connection with the
obtaining of any consent, approval, registration, qualification, permit,
license, or Authorization of any Governmental Authority or other Person
necessary or appropriate for the effective exercise of any Rights under the Loan
Papers. Because Borrower agrees that Administrative Agent's and Lenders'
remedies at Law for failure of Borrower to comply with the provisions of this
Section would be inadequate and that such failure would not be adequately
compensable in damages, Borrower agrees that the covenants of this Section may
be specifically enforced.
11.10 LIMITATION OF RIGHTS. Notwithstanding any other provision of
this Agreement or any other Loan Paper, any action taken or proposed to be taken
by Administrative Agent, any Agent, or any Lender under any Loan Paper which
would affect the operational, voting, or other control of any Company or
Guarantor, shall be pursuant to SECTION 310(d) of the COMMUNICATIONS ACT OF 1934
(as amended), any applicable state Law, and the applicable rules and regulations
thereunder and, if and to the extent required thereby, subject to the prior
consent of the FCC or any applicable PUC.
11.11 EXPENDITURES BY LENDERS. Borrower shall promptly pay within
fifteen (15) Business Days after request therefor (a) all reasonable costs,
fees, and expenses paid or incurred by Collateral Agent, Administrative Agent,
and Arranger, incident to any Loan Paper (including, but not limited to, the
reasonable fees and expenses of counsel to Administrative Agent, Collateral
Agent, and Arranger and the allocated cost of internal counsel in connection
with the negotiation, preparation, delivery, execution, coordination and
administration of the Loan Papers and any related amendment, waiver, or consent)
and (b) all reasonable costs and expenses of Lenders, Collateral Agent, and
Administrative Agent incurred by Administrative Agent, Collateral Agent, or any
Lender in connection with the enforcement of the obligations of any Company or
Guarantor arising under the Loan Papers (including, without limitation, costs
and expenses incurred in connection with any workout or bankruptcy) or the
exercise of any Rights arising under the Loan Papers (including, but not limited
to, reasonable attorneys' fees including allocated cost of internal counsel,
court costs and other costs of collection), all of which shall be a part of the
Obligation and shall bear interest at the Default Rate from the date due until
the date repaid.
11.12 INDEMNIFICATION. BORROWER AND EACH GUARANTOR AGREES TO INDEMNIFY
AND HOLD HARMLESS EACH AGENT, ARRANGER, AND EACH LENDER AND EACH OF THEIR
RESPECTIVE AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
AGENTS, ATTORNEYS AND ADVISORS (EACH, AN "INDEMNIFIED PARTY") FROM AND AGAINST
ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES
(INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES) THAT MAY BE INCURRED
BY OR ASSERTED OR AWARDED AGAINST ANY INDEMNIFIED PARTY, IN EACH CASE ARISING
OUT OF OR IN CONNECTION WITH OR BY REASON OF (INCLUDING, WITHOUT LIMITATION, IN
CONNECTION WITH ANY INVESTIGATION, LITIGATION, OR PROCEEDING OR PREPARATION OF
DEFENSE IN CONNECTION
61
THEREWITH) THE LOAN DOCUMENTS, ANY OF THE TRANSACTIONS CONTEMPLATED HEREIN OR
THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE BORROWINGS (INCLUDING ANY
OF THE FOREGOING ARISING FROM THE NEGLIGENCE OF THE INDEMNIFIED PARTY),
EXCEPT TO THE EXTENT SUCH CLAIM, DAMAGE, LOSS, LIABILITY, COST, OR EXPENSE IS
FOUND IN A FINAL, NON-APPEALABLE JUDGMENT BY A COURT OF COMPETENT
JURISDICTION TO HAVE RESULTED FROM SUCH INDEMNIFIED PARTY'S GROSS NEGLIGENCE
OR WILLFUL MISCONDUCT. IN THE CASE OF AN INVESTIGATION, LITIGATION OR OTHER
PROCEEDING TO WHICH THE INDEMNITY IN THIS SECTION 11.12 APPLIES, SUCH
INDEMNITY SHALL BE EFFECTIVE WHETHER OR NOT SUCH INVESTIGATION, LITIGATION OR
PROCEEDING IS BROUGHT BY THE BORROWER, ITS DIRECTORS, SHAREHOLDERS OR
CREDITORS OR AN INDEMNIFIED PARTY OR ANY OTHER PERSON OR ANY INDEMNIFIED
PARTY IS OTHERWISE A PARTY THERETO AND WHETHER OR NOT THE TRANSACTIONS
CONTEMPLATED HEREBY ARE CONSUMMATED. THE BORROWER AND EACH GUARANTOR AGREE
NOT TO ASSERT ANY CLAIM AGAINST ANY INDEMNIFIED PARTY ON ANY THEORY OF
LIABILITY, FOR SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES ARISING
OUT OF OR OTHERWISE RELATING TO THE LOAN DOCUMENTS, ANY OF THE TRANSACTIONS
CONTEMPLATED HEREIN OR THE ACTUAL OR PROPOSED USE OF THE PROCEEDS OF THE
BORROWINGS. WITHOUT PREJUDICE TO THE SURVIVAL OF ANY OTHER AGREEMENT OF THE
BORROWER HEREUNDER, THE AGREEMENTS AND OBLIGATIONS OF THE BORROWER CONTAINED
IN THIS SECTION 11.12 SHALL SURVIVE THE PAYMENT IN FULL OF THE BORROWINGS AND
ALL OTHER AMOUNTS PAYABLE UNDER THIS AGREEMENT.
SECTION 12 AGREEMENT AMONG LENDERS.
12.1 ADMINISTRATIVE AGENT.
(a) Each Lender hereby appoints NationsBank of Texas, N.A. (and
NationsBank of Texas, N.A. hereby accepts such appointment) as its nominee
and agent, in its name and on its behalf: (i) to act as nominee for and on
behalf of such Lender in and under all Loan Papers; (ii) to arrange the
means whereby the funds of Lenders are to be made available to Borrower
under the Loan Papers; (iii) to take such action as may be requested by any
Lender under the Loan Papers (when such Lender is entitled to make such
request under the Loan Papers and after such requesting Lender has obtained
the concurrence of such other Lenders as may be required under the Loan
Papers); (iv) to receive all documents and items to be furnished to Lenders
under the Loan Papers; (v) to timely distribute, and Administrative Agent
agrees to so distribute, to each Lender all material information, requests,
documents, and items received from Borrower under the Loan Papers; (vi) to
promptly distribute to each Lender its ratable part of each payment or
prepayment (whether voluntary, as proceeds of collateral upon or after
foreclosure, as proceeds of insurance thereon, or otherwise) in accordance
with the terms of the Loan Papers; (vii) to deliver to the appropriate
Persons requests, demands, approvals, and consents received from Lenders;
and (viii) to execute, on behalf of Lenders, such releases or other
documents or instruments as are permitted by the Loan Papers or as directed
by Lenders from time to time; PROVIDED, HOWEVER, Administrative Agent shall
not be required to take any action which exposes Administrative Agent to
personal liability or which is contrary to the Loan Papers or applicable
Law.
(b) Administrative Agent may resign at any time as Administrative
Agent under the Loan Papers by giving written notice thereof to Lenders and
may be removed as Administrative Agent under the Loan Papers at any time
with cause by Required Lenders. Should the initial or any successor
Administrative Agent ever cease to be a party hereto or should the initial
or any successor Administrative Agent ever resign or be removed as
Administrative Agent, then Required Lenders shall elect the successor
Administrative Agent from among the Lenders (other than the
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resigning Administrative Agent). If no successor Administrative Agent
shall have been so appointed by Required Lenders, within 30 days after
the retiring Administrative Agent's giving of notice of resignation or
Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank having
a combined capital and surplus of at least $1,000,000,000. Upon the
acceptance of any appointment as Administrative Agent under the Loan
Papers by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with
all the Rights of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
of Administrative Agent under the Loan Papers, and each Lender shall
execute such documents as any Lender may reasonably request to reflect
such change in and under the Loan Papers. After any retiring
Administrative Agent's resignation or removal as Administrative Agent
under the Loan Papers, the provisions of this SECTION 12 shall inure to
its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under the Loan Papers.
(c) Administrative Agent, in its capacity as a Lender, shall have the
same Rights under the Loan Papers as any other Lender and may exercise the
same as though it were not acting as Administrative Agent; the term
"LENDER" shall, unless the context otherwise indicates, include
Administrative Agent; and any resignation, or removal of by Administrative
Agent hereunder shall not impair or otherwise affect any Rights which it
has or may have in its capacity as an individual Lender. Each Lender and
Borrower agree that Administrative Agent is not a fiduciary for Lenders or
for Borrower but simply is acting in the capacity described herein to
alleviate administrative burdens for both Borrower and Lenders, that
Administrative Agent has no duties or responsibilities to Lenders or
Borrower except those expressly set forth herein, and that Administrative
Agent in its capacity as a Lender has all Rights of any other Lender.
(d) Administrative Agent and its Affiliates may now or hereafter be
engaged in one or more loan, letter of credit, leasing, or other financing
transactions with Borrower, act as trustee or depositary for Borrower, or
otherwise be engaged in other transactions with Borrower (collectively, the
"OTHER ACTIVITIES") not the subject of the Loan Papers. Without limiting
the Rights of Lenders specifically set forth in the Loan Papers,
Administrative Agent and its Affiliates shall not be responsible to account
to Lenders for such other activities, and no Lender shall have any interest
in any other activities, any present or future guaranties by or for the
account of Borrower which are not contemplated or included in the Loan
Papers, any present or future offset exercised by Administrative Agent and
its Affiliates in respect of such other activities, any present or future
property taken as security for any such other activities, or any property
now or hereafter in the possession or control of Administrative Agent or
its Affiliates which may be or become security for the obligations of
Borrower arising under the Loan Papers by reason of the general description
of indebtedness secured or of property contained in any other agreements,
documents or instruments related to any such other activities; PROVIDED
THAT, if any payments in respect of such guaranties or such property or the
proceeds thereof shall be applied to reduction of the obligations of
Borrower arising under the Loan Papers, then each Lender shall be entitled
to share in such application ratably. Each Lender acknowledges that, and
consents to, NationsBank of Texas, N.A. also serving as the Administrative
Agent under the Revolver/Acquisition Facility and as Collateral Agent under
the Intercreditor Agreement.
12.2 EXPENSES. Upon demand by Administrative Agent, each Lender shall pay
its Pro Rata Part of any reasonable expenses (including, without limitation,
court costs, reasonable attorneys' fees, and other costs of collection) incurred
by Administrative Agent in connection with any of the Loan Papers if and to
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the extent Administrative Agent does not receive reimbursement therefor from
other sources within 60 days after incurred; PROVIDED THAT, each Lender shall
be entitled to receive its Pro Rata Part of any reimbursement for such
expenses, or part thereof, which Administrative Agent subsequently receives
from such other sources.
12.3 PROPORTIONATE ABSORPTION OF LOSSES. Except as otherwise provided in
the Loan Papers, nothing in the Loan Papers shall be deemed to give any Lender
any advantage over any other Lender insofar as the Obligation arising under the
Loan Papers is concerned, or to relieve any Lender from absorbing its Pro Rata
Part of any losses sustained with respect to the Obligation (except to the
extent such losses result from unilateral actions or inactions of any Lender
that are not made in accordance with the terms and provisions of the Loan
Papers).
12.4 Delegation of Duties; Reliance. Administrative Agent may perform any
of its duties or exercise any of its Rights under the Loan Papers by or through
its Representatives. Administrative Agent and its Representatives shall (a) be
entitled to rely upon (and shall be protected in relying upon) any writing,
resolution, notice, consent, certificate, affidavit, letter, cablegram,
telecopy, telegram, telex or teletype message, statement, order, or other
documents or conversation believed by it or them to be genuine and correct and
to have been signed or made by the proper Person and, with respect to legal
matters, upon opinion of counsel selected by Administrative Agent, (b) be
entitled to deem and treat each Lender as the owner and holder of the Principal
Debt owed to such Lender for all purposes until, subject to SECTION 13.13,
written notice of the assignment or transfer thereof shall have been given to
and received by Administrative Agent (and any request, authorization, consent,
or approval of any Lender shall be conclusive and binding on each subsequent
holder, assignee, or transferee of the Principal Debt owed to such Lender or
portion thereof until such notice is given and received), (c) not be deemed to
have notice of the occurrence of a Default unless a responsible officer of
Administrative Agent, who handles matters associated with the Loan Papers and
transactions thereunder, has received written notice from a Lender or Borrower
and stating that such notice is a "NOTICE OF DEFAULT," and (d) be entitled to
consult with legal counsel (including counsel for Borrower), independent
accountants, and other experts selected by Administrative Agent and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts.
12.5 LIMITATION OF LIABILITY.
(a) None of the Agents, or any of their respective Representatives
shall be liable for any action taken or omitted to be taken by it or them
under the Loan Papers in good faith and reasonably believed by it or them
to be within the discretion or power conferred upon it or them by the Loan
Papers or be responsible for the consequences of any error of judgment,
except for fraud, gross negligence, or willful misconduct; and none of the
Agents, or any of their respective Representatives has a fiduciary
relationship with any Lender by virtue of the Loan Papers (PROVIDED THAT,
nothing herein shall negate the obligation of Administrative Agent or
Collateral Agent to account for funds received by it for the account of any
Lender).
(b) Unless indemnified to its satisfaction against loss, cost,
liability, and expense, neither Administrative Agent nor any other Agent
shall be compelled to do any act under the Loan Papers or to take any
action toward the execution or enforcement of the powers thereby created or
to prosecute or defend any suit in respect of the Loan Papers. If
Administrative Agent requests instructions from Lenders or Required
Lenders, as the case may be, with respect to any act or action (including,
but not limited to, any failure to act) in connection with any Loan Paper,
Administrative Agent shall be entitled (but shall not be required) to
refrain (without incurring any
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liability to any Person by so refraining) from such act or action unless
and until it has received such instructions. Except where action of
Required Lenders or all Lenders is required in the Loan Papers,
Administrative Agent may act hereunder in its own discretion without
requesting instructions. In no event, however, shall Administrative
Agent or any of its respective Representatives be required to take any
action which it or they determine could incur for it or them criminal or
onerous civil liability. Without limiting the generality of the
foregoing, no Lender shall have any right of action against
Administrative Agent as a result of Administrative Agent's acting or
refraining from acting hereunder in accordance with the instructions of
Required Lenders (or all Lenders, if required in the Loan Papers).
(c) Neither Administrative Agent nor any other Agent shall be
responsible in any manner to any Lender or any Participant for, and each
Lender represents and warrants that it has not relied upon Administrative
Agent or any other Agent in respect of, (i) the creditworthiness of any
Company or any Guarantor and the risks involved to such Lender, (ii) the
effectiveness, enforceability, genuineness, validity, or the due execution
of any Loan Paper, (iii) any representation, warranty, document,
certificate, report, or statement made therein or furnished thereunder or
in connection therewith, (iv) the existence, priority, or perfection of any
Lien hereafter granted or purported to be granted under any Loan Paper, or
(v) observation of or compliance with any of the terms, covenants, or
conditions of any Loan Paper on the part of any Company or Guarantor. Each
Lender agrees to indemnify Administrative Agent and its respective
Representatives and hold them harmless from and against (but limited to
such Lender's Pro Rata Part of) any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, reasonable
expenses, and reasonable disbursements of any kind or nature whatsoever
which may be imposed on, asserted against, or incurred by them in any way
relating to or arising out of the Loan Papers or any action taken or
omitted by them under the Loan Papers (INCLUDING ANY OF THE FOREGOING
ARISING FROM THE NEGLIGENCE OF ADMINISTRATIVE AGENT OR ITS
REPRESENTATIVES), to the extent Administrative Agent and its respective
Representatives are not reimbursed for such amounts by any Company
(PROVIDED THAT, Administrative Agent, and its respective Representatives
shall not have the right to be indemnified hereunder for its or their own
fraud, gross negligence, or willful misconduct).
12.6 DEFAULT; COLLATERAL. Upon the occurrence and continuance of a
Default, Lenders agree to promptly confer in order that Required Lenders or
Lenders, as the case may be, may agree upon a course of action for the
enforcement of the Rights of Lenders; and Administrative Agent shall be entitled
to refrain from taking any action (without incurring any liability to any Person
for so refraining) unless and until Administrative Agent shall have received
instructions from Required Lenders. All rights of action under this Agreement
and under the Notes and all rights to the Collateral, if any, hereunder may be
enforced by Administrative Agent or Collateral Agent (in accordance with the
Intercreditor Agreement) and any suit or proceeding instituted by Administrative
Agent or Collateral Agent in furtherance of such enforcement shall be brought in
their respective names as Administrative Agent or Collateral Agent (as the case
may be) without the necessity of joining as plaintiffs or defendants any other
Lender, and the recovery of any judgment shall be for the benefit of Lenders
subject to the expenses of Administrative Agent and/or Collateral Agent. In
actions with respect to any property of Borrower, Administrative Agent is acting
for the ratable benefit of each Lender. Any and all agreements to subordinate
(whether made heretofore or hereafter) other indebtedness or obligations of
Borrower to the Obligation shall be construed as being for the ratable benefit
of each Lender.
12.7 LIMITATION OF LIABILITY. To the extent permitted by Law, (a) neither
Administrative Agent nor any other Agent (acting in their respective agent
capacities) shall incur any liability to any other
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Lender, Agent, or Participant except for acts or omissions resulting from its
own fraud, gross negligence or wilful misconduct, and (b) neither
Administrative Agent nor any other Agent, Lender, or Participant shall incur
any liability to any other Person for any act or omission of any other
Lender, Agent, or Participant.
12.8 RELATIONSHIP OF LENDERS. Nothing herein shall be construed as
creating a partnership or joint venture among Agents and Lenders.
12.9 INTERCREDITOR AGREEMENT. Each Lender authorizes and directs
Administrative Agent to enter into the Intercreditor Agreement (substantially in
the form and upon the terms of EXHIBIT I) for the benefit of the Lenders,
pursuant to which, among other things, (a) NationsBank of Texas, N.A., is
appointed as Collateral Agent for the benefit of Lenders and the
Revolver/Acquisition Lenders, (b) the relative Rights of Lenders and the
Revolver/Acquisition Lenders with respect to the Collateral are described, and
(c) procedures with respect to maintenance and release of the Collateral are
proscribed.
12.10 BENEFITS OF AGREEMENT. Except for the representations and
covenants in SECTIONS 12.1(c) and 12.9 in favor of Borrower, none of the
provisions of this SECTION 12 shall inure to the benefit of any Company,
Guarantor, or any other Person other than Lenders; consequently, no Company,
Guarantor, or any other Person shall be entitled to rely upon, or to raise as a
defense, in any manner whatsoever, the failure of any Agent or any Lender to
comply with such provisions.
12.11 AGENTS. None of the Lenders identified in this Agreement as
"SYNDICATION AGENT," "DOCUMENTATION AGENT," "MANAGING AGENT," or "CO-AGENT"
shall have any rights, powers, obligations, liabilities, responsibilities, or
duties under this Agreement other than those applicable to all Lenders as such.
Without limiting the foregoing, none of the Lenders so identified as a
"SYNDICATION AGENT," "DOCUMENTATION AGENT," "MANAGING AGENT," or "CO-AGENT"
shall have or be deemed to have any fiduciary relationship with any Lender.
12.12 OBLIGATIONS SEVERAL. The obligations of Lenders hereunder are
several, and each Lender hereunder shall not be responsible for the obligations
of the other Lenders hereunder, nor will the failure of one Lender to perform
any of its obligations hereunder relieve the other Lenders from the performance
of their respective obligations hereunder
SECTION 13 MISCELLANEOUS.
13.1 HEADINGS. The headings, captions, and arrangements used in any of the
Loan Papers are, unless specified otherwise, for convenience only and shall not
be deemed to limit, amplify, or modify the terms of the Loan Papers, nor affect
the meaning thereof.
13.2 NONBUSINESS DAYS. In any case where any payment or action is due
under any Loan Paper on a day which is not a Business Day, such payment or
action may be delayed until the next-succeeding Business Day, but interest and
fees shall continue to accrue in respect of any payment to which it is
applicable until such payment is in fact made; PROVIDED THAT, if, in the case of
any such payment in respect of a Eurodollar Rate Borrowing, the next-succeeding
Business Day is in the next calendar month, then such payment shall be made on
the next-preceding Business Day.
13.3 COMMUNICATIONS. Unless specifically otherwise provided, whenever any
Loan Paper requires or permits any consent, approval, notice, request, or demand
from one party to another, such communication must be in writing (which may be
by telex or telecopy) to be effective and shall be deemed
66
to have been given (a) if by telex, when transmitted to the telex number, if
any, for such party, and the appropriate answer back is received, (b) if by
telecopy, when transmitted to the telecopy number for such party (and all such
communications sent by telecopy shall be confirmed promptly thereafter by
personal delivery or mailing in accordance with the provisions of this
section; PROVIDED, THAT any requirement in this parenthetical shall not affect
the date on which such telecopy shall be deemed to have been delivered), (c)
if by mail, on the third Business Day after it is enclosed in an envelope,
properly addressed to such party, properly stamped, sealed, and deposited in
the appropriate official postal service, or (d) if by any other means, when
actually delivered to such party. Until changed by notice pursuant hereto,
the address (and telex and telecopy numbers, if any) for Administrative Agent
and each Lender, Administrative Agent, and other Agents is set forth on
SCHEDULE 2.1, and for Borrower and each Company is the address set forth by
Borrower's signature on the signature page of this Agreement and for each
Guarantor is the address set forth by such Guarantor's signature on the
signature page of its Guaranty. A copy of each communication to
Administrative Agent shall also be sent to Xxxxxx and Xxxxx, L.L.P., 000 Xxxx
Xxxxxx, Xxxxxx, Xxxxx 00000, Fax: 214/000-0000, Attn: Xxxxx X. Xxxxxx.
13.4 FORM AND NUMBER OF DOCUMENTS. Each agreement, document, instrument,
or other writing to be furnished under any provision of this Agreement must be
in form and substance and in such number of counterparts as may be reasonably
satisfactory to Administrative Agent and its counsel.
13.5 EXCEPTIONS TO COVENANTS. No Company or Guarantor shall take any
action or fail to take any action which is permitted as an exception to any of
the covenants contained in any Loan Paper if such action or omission would
result in the breach of any other covenant contained in any of the Loan Papers.
13.6 SURVIVAL. All covenants, agreements, undertakings, representations,
and warranties made in any of the Loan Papers shall survive all closings under
the Loan Papers and, except as otherwise indicated, shall not be affected by any
investigation made by any party. All rights of, and provisions relating to,
reimbursement and indemnification of Administrative Agent, any Agent, or any
Lender shall survive termination of this Agreement and payment in full of the
Obligation.
13.7 GOVERNING LAW. THE LAWS OF THE STATE OF TEXAS AND OF THE UNITED
STATES OF AMERICA SHALL GOVERN THE RIGHTS AND DUTIES OF THE PARTIES TO THE LOAN
PAPERS AND THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THE
LOAN PAPERS.
13.8 INVALID PROVISIONS. If any provision in any Loan Paper is held to be
illegal, invalid, or unenforceable, such provision shall be fully severable; the
appropriate Loan Paper shall be construed and enforced as if such provision had
never comprised a part thereof; and the remaining provisions thereof shall
remain in full force and effect and shall not be affected by such provision or
by its severance therefrom. Administrative Agent, Lenders, and each Company and
Guarantor party to such Loan Paper agree to negotiate, in good faith, the terms
of a replacement provision as similar to the severed provision as may be
possible and be legal, valid, and enforceable.
13.9 ENTIRETY. THE RIGHTS AND OBLIGATIONS OF THE COMPANIES, GUARANTORS,
LENDERS, AND AGENTS SHALL BE DETERMINED SOLELY FROM WRITTEN AGREEMENTS,
DOCUMENTS, AND INSTRUMENTS, AND ANY PRIOR ORAL AGREEMENTS BETWEEN SUCH PARTIES
ARE SUPERSEDED BY AND MERGED INTO SUCH WRITINGS. THIS AGREEMENT (AS AMENDED IN
WRITING FROM TIME TO TIME) AND THE OTHER WRITTEN LOAN PAPERS EXECUTED BY ANY
COMPANY, ANY GUARANTOR, ANY LENDER, AND/OR ANY AGENT, (TOGETHER WITH ALL
COMMITMENT LETTERS AND FEE LETTERS AS THEY RELATE TO THE PAYMENT OF FEES AFTER
THE CLOSING DATE) REPRESENT THE FINAL AGREEMENT BETWEEN THE COMPANIES, THE
GUARANTORS, LENDERS, AND AGENTS, AND MAY NOT BE CONTRADICTED BY
67
EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS BY SUCH
PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN SUCH PARTIES.
13.10 JURISDICTION; VENUE; SERVICE OF PROCESS; JURY TRIAL. EACH PARTY
HERETO, IN EACH CASE FOR ITSELF, ITS SUCCESSORS AND ASSIGNS, HEREBY
(A) IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND
FEDERAL COURTS LOCATED IN TEXAS, AND AGREES AND CONSENTS THAT SERVICE OF PROCESS
MAY BE MADE UPON IT IN ANY LEGAL PROCEEDING ARISING OUT OF OR IN CONNECTION WITH
THE LOAN PAPERS AND THE OBLIGATION BY SERVICE OF PROCESS AS PROVIDED BY TEXAS
LAW, (B) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY
LITIGATION ARISING OUT OF OR IN CONNECTION WITH THE LOAN PAPERS AND THE
OBLIGATION BROUGHT IN ANY SUCH COURT, (C) IRREVOCABLY WAIVES ANY CLAIMS THAT ANY
LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM,
(D) AGREES TO DESIGNATE AND MAINTAIN AN AGENT FOR SERVICE OF PROCESS IN TEXAS IN
CONNECTION WITH ANY SUCH LITIGATION AND TO DELIVER TO ADMINISTRATIVE AGENT
EVIDENCE THEREOF, IF REQUESTED, (E) IRREVOCABLY CONSENTS TO THE SERVICE OF
PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH LITIGATION BY THE
MAILING OF COPIES THEREOF BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, POSTAGE
PREPAID, AT ITS ADDRESS SET FORTH HEREIN, (F) IRREVOCABLY AGREES THAT ANY LEGAL
PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR IN CONNECTION WITH THE
LOAN PAPERS OR THE OBLIGATION SHALL BE BROUGHT IN ONE OF THE AFOREMENTIONED
COURTS, AND (G) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF ANY LOAN PAPER OR THE TRANSACTIONS CONTEMPLATED THEREBY. The
scope of each of the foregoing waivers is intended to be all-encompassing of any
and all disputes that may be filed in any court and that relate to the subject
matter of this transaction, including, without limitation, contract claims, tort
claims, breach of duty claims, and all other common law and statutory claims.
The Companies, Guarantors, and each other party to this Agreement acknowledge
that this waiver is a material inducement to the agreement of each party hereto
to enter into a business relationship, that each has already relied on this
waiver in entering into this Agreement, and each will continue to rely on each
of such waivers in related future dealings. The Companies, Guarantors, and each
other party to this Agreement warrant and represent that they have reviewed
these waivers with their legal counsel, and that they knowingly and voluntarily
agree to each such waiver following consultation with legal counsel. THE
WAIVERS IN THIS SECTION 13.10 ARE IRREVOCABLE, MEANING THAT THEY MAY NOT BE
MODIFIED EITHER ORALLY OR IN WRITING, AND THESE WAIVERS SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, SUPPLEMENTS, AND REPLACEMENTS TO OR OF THIS OR ANY OTHER
LOAN PAPER. In the event of Litigation, this Agreement may be filed as a
written consent to a trial by the court.
13.11 AMENDMENTS, CONSENTS, CONFLICTS, AND WAIVERS.
(a) Except as otherwise specifically provided, (i) this Agreement may
only be amended, modified or waived by an instrument in writing executed
jointly by Borrower and Required Lenders, and, in the case of any matter
affecting Administrative Agent (EXCEPT removal of Administrative Agent as
provided in SECTION 12) by Administrative Agent, and may only be
supplemented by documents delivered or to be delivered in accordance with
the express terms hereof, and (ii) the other Loan Papers may only be the
subject of an amendment, modification, or waiver if Borrower and Required
Lenders, and, in the case of any matter affecting Administrative Agent
(EXCEPT as set forth above), Administrative Agent, have approved same.
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(b) Any amendment to or consent or waiver under this Agreement or any
Loan Paper which purports to accomplish any of the following must be by an
instrument in writing executed by Borrower and executed (or approved, as
the case may be) by each Lender, and, in the case of any matter affecting
Administrative Agent, by Administrative Agent: (i) extends the due date or
reduces the amount of any scheduled payment of the Obligation or any
scheduled Commitment reduction of the Obligation arising under Loan Papers
beyond the date specified in the Loan Papers; (ii) reduces the interest
rate or decreases the amount of interest, fees, or other sums payable to
Administrative Agent or Lenders hereunder (except such reductions as are
contemplated by this Agreement); (iii) changes the definition of
"APPLICABLE MARGIN" or "APPLICABLE MARGIN FOR COMMITMENT FEES" (other than
changes having the effect of increasing such Applicable Margin or
Applicable Margin for Commitment Fees)," "REQUIRED LENDERS," "COMMITMENT,"
"TERM LOAN MATURITY DATE," "PRO RATA," or "PRO RATA PART," or (iv) except
as otherwise permitted by any Loan Paper, waives compliance with, amends,
or releases (in whole or in part) any Guaranty or releases (in whole or in
part) any Collateral for the Obligation; or (v) changes this CLAUSE (b) or
any other matter specifically requiring the consent of all Lenders
hereunder. No amendment or waiver with respect to the definition of
"TERMINATION DATE" may be made without the consent of all Lenders, except
such extensions as are contemplated by SECTION 2.3. Without the consent of
such Lender, no Lender's "COMMITTED SUM" under the Facility may be
increased.
(c) Any conflict or ambiguity between the terms and provisions herein
and terms and provisions in any other Loan Paper shall be controlled by the
terms and provisions herein.
(d) No course of dealing nor any failure or delay by Administrative
Agent, any Lender, or any of their respective Representatives with respect
to exercising any Right of Administrative Agent or any Lender hereunder
shall operate as a waiver thereof. A waiver must be in writing and signed
by Administrative Agent and Required Lenders (or by all Lenders, if
required hereunder) to be effective, and such waiver will be effective only
in the specific instance and for the specific purpose for which it is
given.
13.12 MULTIPLE COUNTERPARTS. This Agreement may be executed in a
number of identical counterparts, each of which shall be deemed an original for
all purposes and all of which constitute, collectively, one agreement; but, in
making proof of this Agreement, it shall not be necessary to produce or account
for more than one such counterpart. It is not necessary that each Lender
execute the same counterpart so long as identical counterparts are executed by
Borrower, each Lender, and Administrative Agent. This Agreement shall become
effective when counterparts hereof shall have been executed and delivered to
Administrative Agent by each Lender, Administrative Agent, and Borrower, or,
when Administrative Agent shall have received telecopied, telexed, or other
evidence satisfactory to it that such party has executed and is delivering to
Administrative Agent a counterpart hereof.
13.13 SUCCESSORS AND ASSIGNS; ASSIGNMENTS AND PARTICIPATIONS.
(a) This Agreement shall be binding upon, and inure to the benefit of
the parties hereto and their respective successors and assigns, EXCEPT THAT
(i) Borrower may not, directly or indirectly, assign or transfer, or
attempt to assign or transfer, any of its Rights, duties or obligations
under any Loan Papers without the express written consent of all Lenders,
and (ii) EXCEPT as permitted under this Section, no Lender may transfer,
pledge, assign, sell any participation in, or otherwise encumber its
portion of the Obligation.
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(b) Each Lender may assign to one or more Eligible Assignees all or a
portion of its Rights and obligations under this Agreement and the other
Loan Papers (including, without limitation, all or a portion of its
Borrowings and its Notes); PROVIDED, HOWEVER, that:
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's Rights and obligations under this
Agreement and the other Loan Papers, any such partial assignment (when
aggregated with the amount of any concurrent assignments by the
assigning Lender to the same assignee under the Revolver/Acquisition
Facility and/or under the Third Amended and Restated Credit Agreement
dated as of March 25, 1998, among Xxxxxx Operating Company, CoreStates
Bank, N.A., as Administrative Agent, and the lenders now or hereafter
party thereto [as the same may hereafter be amended, modified,
restated, or supplemented]) shall be in an amount at least equal to
$5,000,000, but in no event less than $1,000,000;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its Rights and
obligations under this Agreement and the Notes;
(iv) the parties to such assignment shall execute and deliver to
the Administrative Agent for its acceptance an Assignment and
Acceptance Agreement in the form of EXHIBIT F hereto, together with
any Notes subject to such assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance
Agreement, the assignee thereunder shall be a party hereto and, to the
extent of such assignment, have the obligations, Rights, and benefits of a
Lender under the Loan Papers and the assigning Lender shall, to the extent
of such assignment, relinquish its rights and be released from its
obligations under the Loan Papers. Upon the consummation of any assignment
pursuant to this Section, but only upon the request of the assignor or
assignee made through Administrative Agent, Borrower shall issue
appropriate Notes to the assignor and the assignee, reflecting such
Assignment and Acceptance. If the assignee is not incorporated under the
laws of the United States of America or a state thereof, it shall deliver
to Borrower and Administrative Agent certification as to exemption from
deduction or withholding of Taxes in accordance with SECTION 4.6.
(c) Administrative Agent shall maintain at its address referred to in
SECTION 13.3 a copy of each Assignment and Acceptance Agreement delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Commitment, and principal amount of the
Borrowings owing to, each Lender from time to time (the "REGISTER"). The
entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and Borrower, Administrative Agent and the Lenders
may treat each Person whose name is recorded in the Register as a Lender
hereunder for all purposes of the Loan Papers. The Register shall be
available for inspection by Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice. Upon the consummation
of any assignment in accordance with this SECTION 13.13, SCHEDULE 2.1 shall
automatically be deemed amended (to the extent required) by Administrative
Agent to reflect the name, address, and respective Committed Sums under the
Facility of the assignor and assignee.
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(d) Upon its receipt of an Assignment and Acceptance Agreement
executed by the parties thereto, together with any Notes subject to such
assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT F hereto, (i) accept such Assignment and
Acceptance Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the parties thereto.
(e) Subject to the provisions of this Section and in accordance with
applicable Law, any Lender may, in the ordinary course of its commercial
banking business and in accordance with applicable Law, at any time sell to
one or more Persons (each a "PARTICIPANT") participating interests in its
portion of the Obligation. In the event of any such sale to a Participant,
(i) such Lender shall remain a "LENDER" under this Agreement and the
Participant shall not constitute a "LENDER" hereunder, (ii) such Lender's
obligations under this Agreement shall remain unchanged, (iii) such Lender
shall remain solely responsible for the performance thereof, (iv) such
Lender shall remain the holder of its share of the Principal Debt for all
purposes under this Agreement, (v) Borrower and Administrative Agent shall
continue to deal solely and directly with such Lender in connection with
such Lender's Rights and obligations under the Loan Papers, and (vi) such
Lender shall be solely responsible for any withholding taxes or any filing
or reporting requirements relating to such participation and shall hold
Borrower and Administrative Agent and their respective successors,
permitted assigns, officers, directors, employees, agents, and
representatives harmless against the same. Participants shall have no
Rights under the Loan Papers, other than certain voting Rights as provided
below. Subject to the following, each Lender shall be entitled to obtain
(on behalf of its Participants) the benefits of SECTION 4 with respect to
all participations in its part of the Obligation outstanding from time to
time SO LONG AS Borrower shall not be obligated to pay any amount in excess
of the amount that would be due to such Lender under SECTION 4 calculated
as though no participations have been made. No Lender shall sell any
participating interest under which the Participant shall have any Rights to
approve any amendment, modification, or waiver of any Loan Paper, except to
the extent such amendment, modification, or waiver extends the due date for
payment of any amount in respect of principal (OTHER THAN mandatory
prepayments), interest, or fees due under the Loan Papers, reduces the
interest rate or the amount of principal or fees applicable to the
Obligation (EXCEPT such reductions as are contemplated by this Agreement),
or releases any material Guaranty or all or any substantial portion of the
Collateral for the Obligation under the Loan Papers (EXCEPT such releases
as are contemplated by this Agreement); PROVIDED THAT, in those cases where
a Participant is entitled to the benefits of SECTION 4 or a Lender grants
Rights to its Participants to approve amendments to or waivers of the Loan
Papers respecting the matters previously described in this sentence, such
Lender must include a voting mechanism in the relevant participation
agreement or agreements, as the case may be, whereby a majority of such
Lender's portion of the Obligation (whether held by such Lender or
Participant) shall control the vote for all of such Lender's portion of the
Obligation. Except in the case of the sale of a participating interest to
another Lender, the relevant participation agreement shall not permit the
Participant to transfer, pledge, assign, sell participations in, or
otherwise encumber its portion of the Obligation, unless the consent of the
transferring Lender (which consent will not be unreasonably withheld) has
been obtained.
(f) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its
Borrowings and its Notes to any Federal Reserve Bank as collateral security
pursuant to Regulation A and any Operating Circular issued by such Federal
Reserve Bank. No such assignment shall release the assigning Lender from
its obligations hereunder.
71
(g) Any Lender may furnish any information concerning the Companies
or the Guarantors in the possession of such Lender from time to time to
Eligible Assignees and Participants (including prospective Eligible
Assignees and Participants).
13.14 DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN CERTAIN
CIRCUMSTANCES. The obligations of each Company and each Guarantor under the
Loan Papers shall remain in full force and effect until termination of the
Commitment and payment in full of the Principal Debt and of all interest, fees,
and other amounts of the Obligation then due and owing, EXCEPT that SECTIONS 4,
11, and 13, and any other provisions under the Loan Papers expressly intended to
survive by the terms hereof or by the terms of the applicable Loan Papers, shall
survive such termination. If at any time any payment of the principal of or
interest on any Note or any other amount payable by Borrower under any Loan
Paper is rescinded or must be otherwise restored or returned upon the
insolvency, bankruptcy, or reorganization of Borrower or otherwise, the
obligations of each Company and each Guarantor under the Loan Papers with
respect to such payment shall be reinstated as though such payment had been due
but not made at such time.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
72
Signature Page to that certain 364-Day Revolving Credit and Term Loan
Agreement dated as of March 25, 1998, among Xxxxxx Cellular Operations Company,
as Borrower, NationsBank of Texas, N.A., as Administrative Agent, and certain
other Agents and Lenders named therein.
EXECUTED as of the 25th day of March, 1998, but effective as of the Closing
Date.
Attest: XXXXXX CELLULAR OPERATIONS COMPANY
By: By:
------------------------------ ------------------------------
Name: Name:
------------------------- -------------------------
Title: Title:
------------------------ ------------------------
Mailing Address:
---------------------------------
---------------------------------
73
Signature Page to that certain 364-Day Revolving Credit and Term Loan
Agreement dated as of March 25, 1998, among Xxxxxx Cellular Operations Company,
as Borrower, NationsBank of Texas, N.A., as Administrative Agent, and certain
other Agents and Lenders named therein.
EXECUTED as of the 25th day of March, 1998, but effective as of the
Closing Date.
NATIONSBANK OF TEXAS, N.A.,
AS ADMINISTRATIVE AGENT AND AS A LENDER
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Signature Page to that certain 364-Day Revolving Credit and Term Loan
Agreement dated as of March 25, 1998, among Xxxxxx Cellular Operations Company,
as Borrower, NationsBank of Texas, N.A., as Administrative Agent, and certain
other Agents and Lenders named therein.
EXECUTED as of the 25th day of March, 1998, but effective as of the Closing
Date.
[Name of Lender]
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
Signature Page to that certain 364-Day Revolving Credit and Term Loan
Agreement dated as of March 25, 1998, among Xxxxxx Cellular Operations Company,
as Borrower, NationsBank of Texas, N.A., as Administrative Agent, and certain
other Agents and Lenders named therein.
Each of the undersigned Guarantors hereby acknowledges that it has reviewed
this Credit Agreement and agrees that certain of the representations and
covenants contained in SECTION 8 apply to Guarantors:
XXXXXX CELLULAR OF TEXAS, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
XXXXXX CELLULAR OF CALIFORNIA, INC.
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
