THIRD AMENDED AND RESTATED
CREDIT AGREEMENT
AMONG
CORESTATES BANK, N.A.,
AS ADMINISTRATIVE AGENT AND AS AN AGENT
TORONTO DOMINION (TEXAS), INC.,
AS DOCUMENTATION AGENT AND AS AN AGENT,
NATIONSBANK OF TEXAS, N.A.,
AS SYNDICATION AGENT AND AS AN AGENT,
THE MANAGING AGENTS AND CO-AGENTS DEFINED HEREIN,
AND
LENDERS LISTED
ON SCHEDULE 2.1 ATTACHED HERETO
(COLLECTIVELY, THE "LENDERS"),
AND
XXXXXX OPERATING COMPANY
("BORROWER")
MARCH 25, 1998
TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS AND TERMS. . . . . . . . . . . . . . . . . . 2
1.1 Definitions . . . . . . . . . . . . . . . . . . . . 2
1.2 Rules of Construction . . . . . . . . . . . . . . . 21
SECTION 2 REVOLVING CREDIT COMMITMENT. . . . . . . . . . . . . . . 22
2.1 The Facility. . . . . . . . . . . . . . . . . . . . 22
2.2 Promissory Note . . . . . . . . . . . . . . . . . . 22
2.3 Lenders' Commitment . . . . . . . . . . . . . . . . 23
2.4 Use of Proceeds . . . . . . . . . . . . . . . . . . 23
2.5 Reductions in Commitment. . . . . . . . . . . . . . 23
2.6 Interest. . . . . . . . . . . . . . . . . . . . . . 24
2.7 Advances. . . . . . . . . . . . . . . . . . . . . . 26
2.8 Reduction and Termination of Commitment . . . . . . 27
2.9 Prepayment; Repayment . . . . . . . . . . . . . . . 27
2.10 Payments. . . . . . . . . . . . . . . . . . . . . . 28
2.11 Commitment Fee. . . . . . . . . . . . . . . . . . . 28
2.12 Order of Application. . . . . . . . . . . . . . . . 28
2.13 Administrative Fees . . . . . . . . . . . . . . . . 29
SECTION 3 LETTERS OF CREDIT. . . . . . . . . . . . . . . . . . . . 29
3.1 Availability of Credits . . . . . . . . . . . . . . 29
3.2 Lender Participation in Letter of Credit
Subfacility. . . . . . . . . . . . . . . . . . . . 29
3.3 Commitment Availability . . . . . . . . . . . . . . 31
3.4 Approval and Issuance . . . . . . . . . . . . . . . 31
3.5 Obligations of Borrower . . . . . . . . . . . . . . 31
3.6 Payment by Lenders on Letters of Credit . . . . . . 32
3.7 Collateral Security . . . . . . . . . . . . . . . . 33
3.8 Canceled Letters of Credit. . . . . . . . . . . . . 34
3.9 General Terms of Credits. . . . . . . . . . . . . . 34
SECTION 4 CHANGE IN CIRCUMSTANCES. . . . . . . . . . . . . . . . . 35
4.1 Increased Cost and Reduced Return . . . . . . . . . 35
4.2 Limitation on Types of Loans. . . . . . . . . . . . 37
4.3 Illegality. . . . . . . . . . . . . . . . . . . . . 37
4.4 Treatment of Affected Loans . . . . . . . . . . . . 37
4.5 Compensation. . . . . . . . . . . . . . . . . . . . 38
4.6 Taxes . . . . . . . . . . . . . . . . . . . . . . . 38
SECTION 5 REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . 40
5.1 Organization and Good Standing. . . . . . . . . . . 40
5.2 Power and Authority; Validity of Agreement. . . . . 40
5.3 No Violation of Laws or Agreements. . . . . . . . . 40
5.4 Material Contracts. . . . . . . . . . . . . . . . . 40
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
i
5.5 Compliance. . . . . . . . . . . . . . . . . . . . . 40
5.6 Litigation. . . . . . . . . . . . . . . . . . . . . 41
5.7 Title to Assets . . . . . . . . . . . . . . . . . . 41
5.8 Capital Stock/Partnership Interests . . . . . . . . 41
5.9 Accuracy of Information; Full Disclosure. . . . . . 41
5.10 Taxes and Assessments . . . . . . . . . . . . . . . 42
5.11 Indebtedness. . . . . . . . . . . . . . . . . . . . 42
5.12 Management Agreements . . . . . . . . . . . . . . . 42
5.13 Investments . . . . . . . . . . . . . . . . . . . . 42
5.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . 42
5.15 Permitted Acquisitions. . . . . . . . . . . . . . . 43
5.16 Fees and Commissions. . . . . . . . . . . . . . . . 43
5.17 No Extension of Credit for Securities . . . . . . . 44
5.18 Perfection of Security Interests. . . . . . . . . . 44
5.19 Hazardous Wastes, Substances and Petroleum
Products . . . . . . . . . . . . . . . . . . . . . 44
5.20 Solvency. . . . . . . . . . . . . . . . . . . . . . 44
5.21 Wireline Spinoff. . . . . . . . . . . . . . . . . . 45
SECTION 6 SECURITY; GUARANTIES . . . . . . . . . . . . . . . . . . 45
6.1 Collateral. . . . . . . . . . . . . . . . . . . . . 45
6.2 Communications Pledge . . . . . . . . . . . . . . . 47
6.3 Guaranties. . . . . . . . . . . . . . . . . . . . . 47
6.4 Future Liens. . . . . . . . . . . . . . . . . . . . 47
6.5 Release of Collateral . . . . . . . . . . . . . . . 47
6.6 Negative Pledge . . . . . . . . . . . . . . . . . . 48
6.7 Control; Limitation of Rights . . . . . . . . . . . 49
SECTION 7 CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . 49
7.1 First Advance . . . . . . . . . . . . . . . . . . . 49
7.2 Permitted Acquisitions. . . . . . . . . . . . . . . 52
7.3 Subsequent Advances . . . . . . . . . . . . . . . . 52
7.4 Additional Condition to Lenders' Obligations. . . . 52
SECTION 8 AFFIRMATIVE COVENANTS. . . . . . . . . . . . . . . . . . 53
8.1 Existence and Good Standing . . . . . . . . . . . . 53
8.2 Quarterly Financial Statements. . . . . . . . . . . 53
8.3 Annual Financial Statements . . . . . . . . . . . . 53
8.4 Other Information . . . . . . . . . . . . . . . . . 53
8.5 Budget and Management Reports . . . . . . . . . . . 54
8.6 Books and Records . . . . . . . . . . . . . . . . . 54
8.7 Insurance . . . . . . . . . . . . . . . . . . . . . 54
8.8 Litigation; Event of Default. . . . . . . . . . . . 54
8.9 Taxes . . . . . . . . . . . . . . . . . . . . . . . 55
8.10 Expenses and Costs. . . . . . . . . . . . . . . . . 55
8.11 New Subsidiary Designation. . . . . . . . . . . . . 55
8.12 Compliance; Notification. . . . . . . . . . . . . . 55
8.13 ERISA . . . . . . . . . . . . . . . . . . . . . . . 56
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
ii
8.14 Senior Leverage Ratio . . . . . . . . . . . . . . . 56
8.15 Pro Forma Debt Service Coverage . . . . . . . . . . 56
8.16 Interest Coverage . . . . . . . . . . . . . . . . . 56
8.17 Fixed Charge Coverage . . . . . . . . . . . . . . . 57
8.18 Total Leverage Ratio. . . . . . . . . . . . . . . . 57
8.19 Communications Interest Coverage. . . . . . . . . . 57
8.20 Capital Expenditures. . . . . . . . . . . . . . . . 57
8.21 Interest Rate Protection. . . . . . . . . . . . . . 57
8.22 Management Changes. . . . . . . . . . . . . . . . . 57
8.23 Successor Administrative Agent. . . . . . . . . . . 57
8.24 Transactions Among Affiliates . . . . . . . . . . . 58
8.25 Deposit Account . . . . . . . . . . . . . . . . . . 58
8.26 Other Information . . . . . . . . . . . . . . . . . 58
8.27 CoBank Participation. . . . . . . . . . . . . . . . 58
8.28 Designation of Unrestricted Subsidiary. . . . . . . 58
8.29 Year 2000 . . . . . . . . . . . . . . . . . . . . . 58
8.30 Additional Guaranties and Collateral Security
Agreements . . . . . . . . . . . . . . . . . . . . 58
8.31 Wireline Spinoff. . . . . . . . . . . . . . . . . . 59
SECTION 9 NEGATIVE COVENANTS . . . . . . . . . . . . . . . . . . . 59
9.1 Indebtedness. . . . . . . . . . . . . . . . . . . . 59
9.2 Guaranties. . . . . . . . . . . . . . . . . . . . . 59
9.3 Loans . . . . . . . . . . . . . . . . . . . . . . . 59
9.4 Liens and Encumbrances. . . . . . . . . . . . . . . 60
9.5 Additional Negative Pledge. . . . . . . . . . . . . 60
9.6 Restricted Payments . . . . . . . . . . . . . . . . 60
9.7 Transfer of Assets; Liquidation . . . . . . . . . . 61
9.8 Acquisitions and Investments. . . . . . . . . . . . 62
9.9 Payments to Affiliates. . . . . . . . . . . . . . . 62
9.10 Use of Proceeds . . . . . . . . . . . . . . . . . . 62
9.11 Amendments to Documents . . . . . . . . . . . . . . 62
SECTION 10 NEGATIVE COVENANTS OF COMMUNICATIONS. . . . . . . . . . 63
10.1 Indebtedness . . . . . . . . . . . . . . . . . . . 63
10.2 Guaranties . . . . . . . . . . . . . . . . . . . . 63
10.3 Loans. . . . . . . . . . . . . . . . . . . . . . . 63
10.4 Liens and Encumbrances . . . . . . . . . . . . . . 63
10.5 Additional Negative Pledge . . . . . . . . . . . . 64
10.6 Communications Bond Debt, Preferred Stock,
and Exchange Debentures . . . . . . . . . . . . . 64
10.7 Amendments to Documents. . . . . . . . . . . . . . 64
10.8 Designation of Unrestricted Companies. . . . . . . 64
10.9 Management Expenses. . . . . . . . . . . . . . . . 65
10.10 Affiliate Transactions . . . . . . . . . . . . . . 65
SECTION 11 ADDITIONAL COLLATERAL AND RIGHT OF SET OFF. . . . . . . 65
11.1 Additional Collateral. . . . . . . . . . . . . . . 65
11.2 Right of Setoff. . . . . . . . . . . . . . . . . . 65
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
iii
SECTION 12 DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . 65
12.1 Events of Default . . . . . . . . . . . . . . . . . 65
12.2 Remedies. . . . . . . . . . . . . . . . . . . . . . 68
12.3 Limitation of Rights. . . . . . . . . . . . . . . . 68
SECTION 13 AGREEMENT AMONG LENDERS . . . . . . . . . . . . . . . . . 68
13.1 Administrative Agent. . . . . . . . . . . . . . . . 68
13.2 Expenses. . . . . . . . . . . . . . . . . . . . . . 70
13.3 Proportionate Absorption of Losses. . . . . . . . . 70
13.4 Delegation of Duties; Reliance. . . . . . . . . . . 70
13.5 Limitation of Liability . . . . . . . . . . . . . . 71
13.6 Default; Collateral . . . . . . . . . . . . . . . . 72
13.7 Limitation of Liability . . . . . . . . . . . . . . 72
13.8 Relationship of Lenders . . . . . . . . . . . . . . 72
13.9 Benefits of Agreement . . . . . . . . . . . . . . . 72
13.10 Managing Agents and Co-Agents . . . . . . . . . . . 72
13.11 Obligations Several . . . . . . . . . . . . . . . . 73
SECTION 14 MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . 73
14.1 Indemnification and Release Provisions. . . . . . . 73
14.2 Successors and Assigns; Assignments and
Participations . . . . . . . . . . . . . . . . . . 73
14.3 Binding and Governing Law . . . . . . . . . . . . . 75
14.4 Survival. . . . . . . . . . . . . . . . . . . . . . 76
14.5 No Waiver; Delay. . . . . . . . . . . . . . . . . . 76
14.6 Modification; Waiver. . . . . . . . . . . . . . . . 76
14.7 Headings. . . . . . . . . . . . . . . . . . . . . . 76
14.8 Notices . . . . . . . . . . . . . . . . . . . . . . 76
14.9 Payment on Non-Business Days. . . . . . . . . . . . 77
14.10 Time of Day . . . . . . . . . . . . . . . . . . . . 77
14.11 Severability. . . . . . . . . . . . . . . . . . . . 77
14.12 Counterparts. . . . . . . . . . . . . . . . . . . . 77
14.13 Jurisdiction; Venue; Service of Process;
Jury Trial . . . . . . . . . . . . . . . . . . . . 77
14.14 Entirety. . . . . . . . . . . . . . . . . . . . . . 78
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
iv
LIST OF SCHEDULES AND EXHIBITS
Schedule 2.1 - Lenders and Commitments
Schedule 5.4 - Material Contracts
Schedule 5.5 - Permits, Licenses, Authorizations, etc.
Schedule 5.8 - Capital Stock and Partnership Interests
Schedule 5.11 - Existing Indebtedness
Schedule 5.12 - Management or Consulting Agreements
Schedule 7.1 - Post-Closing Requirements
Schedule 7.2 - Requirements for a Permitted Acquisition
Schedule 9.8 - Existing Investments
Schedule 10.4 - Existing Liens
Exhibit A - Form of Promissory Note
Exhibit B-1 - Form of Advance Request
Exhibit B-2 - Form of Letter of Credit Request Form
Exhibit C-1 - Form of Compliance Certificate
Exhibit C-2 - Form of Permitted Acquisition Compliance Certificate
Exhibit C-3 - Form of Permitted Acquisition Loan Closing Certificate
Exhibit D - Form of Pledge, Assignment, and Security Agreement
Exhibit E - Form of Pledge Agreement
Exhibit F - Form of Guaranty
Exhibit G - Form of Assignment and Acceptance Agreement
Exhibit H-1 - Form of Opinion of Counsel
Exhibit H-2 - Form of Opinion of Regulatory Counsel
Exhibit H-3 - Form of Opinion of Local Counsel
Exhibit I - [Reserved]
Exhibit J - Form of Affiliate Subordination Agreement
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS THIRD AMENDED AND RESTATED CREDIT AGREEMENT is made this 25th day of
March, 1998, by and among XXXXXX OPERATING COMPANY ("BORROWER"), an Oklahoma
corporation, Lenders (hereinafter defined), CORESTATES BANK, N.A., as
Administrative Agent (hereinafter defined), NATIONSBANK OF TEXAS, N.A., as
Syndication Agent (hereinafter defined), TORONTO DOMINION (TEXAS), INC., as
Documentation Agent (hereinafter defined), and the Managing Agents (hereinafter
defined) and Co-Agents (hereinafter defined). Each of the Guarantors
(hereinafter defined), has executed this Credit Agreement for the limited
purpose of making the representations and warranties set forth in SECTION 4 and
agreeing to the covenants set forth in SECTIONS 6, 7, and 8 hereof.
BACKGROUND
WHEREAS, Borrower (under its previous name, Xxxxxx Communications
Corporation), its wholly-owned subsidiary, Xxxxxx Cellular Systems, Inc.
(together with Borrower, the "ORIGINAL CORPORATE BORROWERS"), and Xxxxxxx X.
Xxxxxx Irrevocable Family Trust, Xxxxxxx X. Xxxxxx Irrevocable Family Trust, and
Xxxxxx X. Xxxxxx Irrevocable Family Trust (collectively, the "TRUST BORROWERS"
and, together with the Original Corporate Borrowers, the "ORIGINAL BORROWERS")
entered into a Credit Agreement dated November 9, 1994 (as amended from time to
time, the "ORIGINAL CREDIT AGREEMENT") with CoreStates Bank, N.A., as a lender
and as "ADMINISTRATIVE AGENT" thereunder, and Bank IV Oklahoma, N.A. (the
"ORIGINAL LENDERS"), pursuant to which the Original Lenders agreed to make loans
and advances to the Original Corporate Borrowers up to an aggregate principal
amount outstanding at any time of $25,000,000, and to make a $6,000,000 term
loan to the Trust Borrowers (the "TRUST LOAN"), in each case subject to the
terms and conditions set forth therein; and
WHEREAS, the Original Borrowers and certain additional borrowers (the
"AMENDED AND RESTATED BORROWERS") entered into an Amended and Restated Credit
Agreement dated March 19, 1996 (the "AMENDED AND RESTATED CREDIT AGREEMENT")
with CoreStates Bank, N.A., as a lender and as "ADMINISTRATIVE AGENT"
thereunder, and certain additional lenders listed therein (the "AMENDED AND
RESTATED LENDERS"), pursuant to which the Amended and Restated Lenders agreed to
make loans and advances to the Amended and Restated Borrowers up to an aggregate
principal amount outstanding at any time of $84,000,000 and to permit the Trust
Loan to remain outstanding thereunder, in each case subject to the terms and
conditions set forth therein; and
WHEREAS, in a series of related transactions occurring substantially
concurrently, (a) Borrower changed its name from Xxxxxx Communications
Corporation to Xxxxxx Operating Company, (b) a newly-formed Oklahoma corporation
changed its name to Xxxxxx Communications Corporation ("COMMUNICATIONS"), (c)
all of the issued and outstanding shares of capital stock of Borrower were
transferred by the current holders thereof to Communications in exchange for
shares of capital stock of Communications, and all of the shares of the capital
stock of certain of Borrower's subsidiaries were transferred from Borrower to
Communications (the "REORGANIZATION"), and (d) Communications issued its Senior
Notes due 2007 pursuant to an Indenture dated February 28, 1997, and sold such
notes to certain holders pursuant to a Preliminary Offering Memorandum dated
February 10, 1997 and a Final Offering Memorandum dated February 25, 1997 (as
further defined herein, the "COMMUNICATIONS BOND DEBT"); and
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
WHEREAS, in connection with such Reorganization and the issuance of the
Communications Bond Debt, Borrower entered into a Second Amended and Restated
Credit Agreement dated as of February 28, 1997 (as amended from time to time,
the "SECOND AMENDED AND RESTATED CREDIT AGREEMENT") with CoreStates Bank, N.A.
(in its capacity as "ADMINISTRATIVE AGENT" thereunder and as a lender) and
certain other lenders (the "SECOND AMENDED AND RESTATED LENDERS") and agreed,
among other things, to (a) increase the commitment available to Borrower up to
$200,000,000, (b) finance certain capital expenditures and acquisitions, (c)
refinance all existing indebtedness of the Amended and Restated Borrowers under
the Amended and Restated Credit Agreement (other than the Trust Loan), and (d)
fund certain dividends and distributions to Communications, enabling, among
other things, the repayment of the Trust Loan in full and the payment of
semi-annual interest payments by Communications on the Communications Bond Debt;
and
WHEREAS, subject to the terms and conditions set forth below, Borrower and
Lenders desire to amend and restate the Second Amended and Restated Credit
Agreement in order, among other things, to (a) increase the commitment available
to Borrower up to $250,000,000, (b) extend the Final Maturity Date to June 30,
2006, and (c) refinance all existing indebtedness under the Second Amended and
Restated Credit Agreement; and
WHEREAS, this amendment and restatement of the Second Amended and Restated
Credit Agreement hereunder is not intended by the parties to constitute either a
novation or a discharge or satisfaction of the indebtedness under the Second
Amended and Restated Credit Agreement, which indebtedness shall remain
outstanding hereunder on the terms and conditions hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing and the promises and the
agreements hereinafter set forth, and intending to be legally bound hereby, the
parties hereto agree that, effective upon the Effective Date as hereinafter
defined, the Second Amended and Restated Credit Agreement is amended and
restated in its entirety as follows:
SECTION 1 DEFINITIONS AND TERMS.
1.1 DEFINITIONS. When used in this Agreement, the following terms have
the respective meanings set forth below.
ACCUMULATED FUNDING DEFICIENCY has the meaning ascribed to that term in
SECTION 302 of ERISA.
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 9.8); 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.
ADJUSTED BASE RATE means the Base Rate plus the Applicable Margin, which
rate shall change when and as the Base Rate changes and when and as the
Applicable Margin changes.
THIRD AMENDED AND
2 RESTATED CREDIT AGREEMENT
ADJUSTED EURODOLLAR RATE means, for any Eurodollar Portion and for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) determined by Administrative Agent to be equal to the
quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar
Portion for such Interest Period by (b) 1 minus the Reserve Requirement for such
Eurodollar Portion for such Interest Period.
ADMINISTRATIVE AGENT means CoreStates Bank, N.A., in its capacity as
administrative agent for Lenders hereunder, and its successors and assigns in
such capacity.
ADVANCE means a borrowing under the Commitment pursuant to SECTION 2.7 of
this Agreement.
ADVANCE REQUEST FORM means the certificate in the form attached hereto as
EXHIBIT B-1 to be delivered by Borrower to Administrative Agent as a condition
of each Advance.
AFFILIATE means (a) any Person which directly or indirectly owns, controls,
or holds five percent (5%) or more of the outstanding beneficial interest in
Borrower, (b) any Person of which five percent (5%) or more of the outstanding
beneficial interest is directly or indirectly owned, controlled, or held by
Borrower, (c) any Person which directly or indirectly is under common control
with Borrower, (d) any officer or director of Borrower or any Affiliate, or (e)
any immediate family member of any Person who is an Affiliate. For purposes of
this definition, "CONTROL" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities, by contract, or
otherwise.
AGENTS means, collectively, Administrative Agent, Syndication Agent, and
Documentation Agent.
AGREEMENT means this Third Amended and Restated Credit Agreement, and all
exhibits and schedules hereto, as each may be amended, modified, or restated
from time to time.
APPLICABLE LENDING OFFICE means, for each Lender and for each Type of
Portion, the "LENDING OFFICE" of such Lender (or of an Affiliate of such Lender)
designated for such Type of Portion on the signature pages hereof, or such other
office of such Lender (or an Affiliate of such Lender) as such Lender may from
time to time specify to Administrative Agent and Borrower by written notice in
accordance with the terms hereof as the office by which its Portions of such
Type are to be made and maintained.
APPLICABLE MARGIN means, on any date of determination, with respect to each
Base Portion or Eurodollar Portion, respectively, the percentage per annum set
forth in the appropriate column below that corresponds to the Total Leverage
Ratio at such date of determination, as calculated based on the quarterly
compliance certificate of Borrower and Communications most recently delivered
pursuant to SECTION 8.2 hereof:
THIRD AMENDED AND
3 RESTATED CREDIT AGREEMENT
----------------------------------------------------------------------------
APPLICABLE MARGIN
----------------------------------------------------------------------------
EURODOLLAR RATE
TOTAL LEVERAGE RATIO BASE RATE BORROWINGS BORROWINGS
----------------------------------------------------------------------------
9.0 or greater 1.250% 2.250%
----------------------------------------------------------------------------
8.0 or greater, 0.875% 1.875%
but less than 9.0
----------------------------------------------------------------------------
7.0 or greater, 0.625% 1.625%
but less than 8.0
----------------------------------------------------------------------------
6.0 or greater, 0.375% 1.500%
but less than 7.0
----------------------------------------------------------------------------
5.0 or greater, 0.125% 1.250%
but less than 6.0
----------------------------------------------------------------------------
Less than 5.0 0.000% 1.000%
----------------------------------------------------------------------------
(a) On any date of determination of the Applicable Margin, if the
Senior Leverage Ratio, based on the most recently delivered Compliance
Certificate, is greater than 5.00 to 1.00, then the Applicable Margin shall
be increased by 0.125% for so long as the Senior Leverage Ratio exceeds 5.0
to 1.0.
(b) 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 Portions and Eurodollar Portions shall be determined by
reference to the Compliance Certificate provided by Borrower and
Communications on the Closing Date. With respect to any adjustments in the
Applicable Margin as a result of changes in the Total Leverage Ratio, such
adjustment shall be effective commencing on the second Business Day after
the delivery of Financial Statements (and the related Compliance
Certificate) pursuant to SECTIONS 8.2 and 8.3, or the most recent Permitted
Acquisition Compliance Certificate for a Permitted Acquisition, as the case
may be.
(c) If Borrower and Communications fail to timely furnish to Lenders
the Financial Statements and related Compliance Certificates as required to
be delivered pursuant to SECTIONS 8.2 and 8.3, and such failure shall not
be remedied within five days after written notice thereof from
Administrative Agent or any Lender, then the Applicable Margin shall be the
maximum Applicable Margin specified in the table above corresponding to a
Total Leverage Ratio of 9.0 to 1.0.
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 8.2 hereof.
----------------------------------------------------------------------------
SENIOR LEVERAGE RATIO APPLICABLE MARGIN
----------------------------------------------------------------------------
Greater than or equal to 6.0 to 1.0 0.375%
----------------------------------------------------------------------------
Less than 6.0 to 1.0 0.250%
----------------------------------------------------------------------------
THIRD AMENDED AND
4 RESTATED CREDIT AGREEMENT
(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 the
Compliance Certificate provided 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 8.2 and 8.3 or the most recent Permitted Acquisition Compliance
Certificate for a Permitted Acquisition, as the case may be.
(b) If Borrower or Communications fails to timely furnish to Lenders
the Financial Statements and related Compliance Certificates as required to
be delivered pursuant to SECTIONS 8.2 and 8.3, 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.
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.
BANKS, as referred to in any financing statements or other lien filings
made under or in connection with the Second Amended and Restated Credit
Agreement, the Amended and Restated Credit Agreement (as defined in the Recitals
hereto), or the Original Credit Agreement (as defined in the Recitals hereto),
means "LENDERS" as defined in the Loan Papers.
BASE PORTION means Portions that bear interest at rates based upon the Base
Rate.
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 Federal Funds Rate.
BORROWER means Xxxxxx Operating Company, an Oklahoma corporation and a
wholly-owned Subsidiary of Communications.
BUDGET means the most recently delivered of (a) the annual financial
budgets for the Companies and Communications and its Restricted Subsidiaries
delivered by the Companies and Communications on the Closing Date as required in
CLAUSE (iii) of SECTION 7.1(i) or (b) the Budgets delivered pursuant to
SECTION 8.5, 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 Agents.
BUSINESS DAY means (a) for all purposes, any day not a Saturday, Sunday, or
a day on which banks are required or authorized by law to be closed in
Philadelphia, Pennsylvania or Dallas, Texas; and (b) in
THIRD AMENDED AND
5 RESTATED CREDIT AGREEMENT
addition to the foregoing, in respect of any Eurodollar Portion, a day on
which dealings in United States dollars are conducted in the London interbank
market and commercial banks are open for international business.
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,
HOWEVER, that Capital Expenditures shall not include acquisitions of stock or
assets which are made in accordance with SECTION 9.8 hereof.
CAPITAL LEASES means capital leases and subleases, as defined in STATEMENT
13 of the Financial Accounting Standards Board dated November 1976, as amended
and updated from time to time.
CELLULAR PARTNERSHIP means, individually, and CELLULAR PARTNERSHIPS means,
collectively, any entity in which Borrower or one of its Restricted Subsidiaries
owns, directly or indirectly, a partnership interest.
CELLULAR PARTNERSHIP OBLIGOR means, on any date of determination, those
Cellular Partnerships in which Borrower or one of its Restricted Subsidiaries,
directly or indirectly, serves as the "MANAGING GENERAL PARTNER" or equivalent
position and which have incurred Indebtedness from any Company which
Indebtedness has not been terminated and with respect to which Indebtedness
amounts remain outstanding and unpaid.
CELLULAR PARTNERSHIP PROMISSORY NOTE has the meaning set forth in SECTION
7.1(f) hereof.
CERCLA means the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund Amendments and
Reauthorization Act of 1986, as amended from time to time, and all rules and
regulations promulgated in connection therewith.
CO-AGENTS means Fleet National Bank, Banque Paribas, and Key Corporate
Capital Inc.
CODE means the Internal Revenue Code of 1986, as amended from time to time,
and regulations with respect thereto in effect from time to time.
COLLATERAL means the collateral security afforded to Administrative Agent
on behalf of Lenders under the Collateral Security Documents.
COLLATERAL SECURITY DOCUMENTS means, collectively, the Security Agreements,
the Pledge Agreements, the Guaranty Agreements, and any additional documents
granting security to Administrative Agent on behalf of Lenders hereunder or any
interest rate hedging agreement with a Lender, as the same may be renewed,
extended, supplemented, amended, or restated.
COMMITMENT means, on any date of determination, the maximum aggregate
principal amount which Lenders on a several basis have agreed to advance (or
issue as Letters of Credit pursuant to SECTION 3) to Borrower under
SECTION 2.1(a) hereof, being $250,000,000 on the Effective Date, as such amount
may be canceled or reduced from time to time in accordance with the terms
hereof.
COMMITMENT REDUCTION DATE shall have the meaning specified in SECTION 2.5
hereof.
THIRD AMENDED AND
6 RESTATED CREDIT AGREEMENT
COMMUNICATIONS means Xxxxxx Communications Corporation, an Oklahoma
corporation, and the owner of 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.
COMMUNICATIONS BOND DEBT means the 11 3/4 Senior Notes due 2007 in an
aggregate principal amount of $160,000,000, issued by Communications pursuant to
that certain Indenture dated as of February 28, 0000, xxxxxxx Xxxxxxxxxxxxxx xxx
Xxxxxx Xxxxxx Trust Company of New York, as Trustee, as the same may be amended
from time to time in accordance with the terms thereof and hereof.
COMMUNICATIONS INTEREST EXPENSE, as of any date of determination, means the
Interest Expense of Communications and its Consolidated Subsidiaries for the
four most recently-ended fiscal quarters, as reduced by interest income earned
by Communications under the Escrow Agreement, as determined in accordance with
GAAP; PROVIDED, THAT, interest paid on the Senior Notes with proceeds of the
Escrow Account shall be excluded from Communications Interest Expense.
COMMUNICATIONS OPERATING CASH FLOW, as of any date of determination, means
the Operating Cash Flow of Communications and its Restricted Subsidiaries on a
consolidated basis for the four most recently ended fiscal quarters adjusted as
required, with respect to any Cellular Partnership, to take into account any
minority ownership when (and only when) intercompany Indebtedness to Borrower
from such Cellular Partnerships has been paid in full.
COMMUNICATIONS TOTAL DEBT means the Total Debt of Communications and its
Restricted Subsidiaries; PROVIDED, THAT the Total Debt of Communications and its
Restricted Subsidiaries (a) shall be reduced by (i) amounts on deposit in the
Escrow Account to be used to pay any outstanding [principal] under the
Communications Bond Debt, if any, and (ii) the amount of all immediately
available cash held by Communications and its Restricted Subsidiaries in excess
of $10,000,000 and (b) shall include the principal amount of all Exchange
Debentures, if any, issued in exchange for the Preferred Stock.
COMPANIES means, at any date of determination, Borrower and each of its
Restricted Subsidiaries, and COMPANY means, on any date of determination,
Borrower or any of its Restricted Subsidiaries.
CONSEQUENTIAL LOSS means any loss or expense which any Lender may
reasonably incur in respect of a Eurodollar Portion as a consequence of any
event described in SECTION 4.5.
DEBT ISSUANCE means any Indebtedness of any Company or Communications, as
the case may be, for borrowed money issued or incurred after the Closing Date,
other than, in the case of the Companies, Indebtedness permitted under
SECTION 9.1 (a) - (f).
DEFAULT means an event, condition, or circumstance, the occurrence of which
would, with the giving of notice or the passage of time or both, constitute an
Event of Default.
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
Portions PLUS 2% AND (b) the Maximum Rate.
DOLLARS and the symbol $ means lawful money of the United States of
America.
THIRD AMENDED AND
7 RESTATED CREDIT AGREEMENT
EFFECTIVE DATE means the date on which the conditions set forth in
SECTION 7.1 shall have been satisfied.
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 has occurred and is continuing at the time any assignment is effected in
accordance with SECTION 14.16, 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.
ENVIRONMENTAL CONTROL STATUTES means any federal, state, county, regional,
or local laws governing the control, storage, removal, spill, release, or
discharge of Hazardous Substances, including, without limitation, CERCLA, the
Clean Air Act (42 U.S.C. Section 7401 ET SEQ.), the Federal Water Pollution
Control Act, as amended by the 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.), any similar or implementing state law, and in each case including all
amendments thereto and all rules and regulations in effect at any time
thereunder and all permits issued in connection therewith.
EQUITY ISSUANCE means the issuance 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.
EPA means the United States Environmental Protection Agency, or any
successor thereto.
ERISA means the Employee Retirement Income Security Act of 1974, all
amendments thereto, and all rules and regulations in effect at any time
thereunder.
ERISA AFFILIATE means, when used with respect to any Plan, ERISA, the PBGC,
or a provision of the Code pertaining to employee benefit plans, any person that
is a member of any group or organization within the meaning of Code SECTIONS
414(b), (c), (m) or (o) of which any Company is a member.
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 the mandatory redemption (if
applicable) of, and two years' interest on, the Communications Bond Debt.
THIRD AMENDED AND
8 RESTATED CREDIT AGREEMENT
EURODOLLAR-BASED RATE means the Adjusted Eurodollar Rate plus the
Applicable Margin, such rate to change when and as the Applicable Margin
changes.
EURODOLLAR PORTION means Portions that bear interest at rates based upon
the Adjusted Eurodollar Rate.
EURODOLLAR RATE means, for any Eurodollar Portion 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
Portion 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%).
EVENT OF DEFAULT means an event described in SECTION 12.1 hereof.
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.
EXISTING INTEREST RATE AGREEMENT means that certain ISDA Master Agreement
dated as of April 11, 1997, between First Union National Bank (f/k/a First Union
National Bank of North Carolina) and Communications.
FCC means the Federal Communications Commission, or any successor thereto.
FEDERAL FUNDS RATE means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100 of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
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 determined by the Administrative Agent.
FINAL MATURITY DATE means the earlier of June 30, 2006, or the date on
which the Commitment is terminated pursuant to SECTION 2.8 hereof.
FIXED CHARGE COVERAGE RATIO means, as of any date of determination,
calculated for the most recently-ended Rolling Period, the ratio of: (a) the
Operating Cash Flow of the Companies, to (b) the sum of (i) mandatory
prepayments and regularly scheduled principal payments or Commitment reductions
with
THIRD AMENDED AND
9 RESTATED CREDIT AGREEMENT
respect to Total Debt of the Companies required to be paid during such
period, (ii) the amount paid for Capital Expenditures of 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 by Borrower, including, without limitation,
any amounts paid to fund interest on the Communications Bond Debt, the
Preferred Stock, and the Exchange Debentures, but excluding distributions
otherwise permitted by SECTION 9.6(a).
GAAP means generally accepted accounting principles set forth in the
Opinions of the Accounting Principles Board of the American Institute of
Certified Public Accountants and in statements of the Financial Accounting
Standards Board and in such other statements by such other Person as
Administrative Agent may reasonably approve, which are applicable in the
circumstances as of the date in question; and such principles observed in a
current period shall be comparable in all material respects to those applied in
a preceding period.
GRCGP means the Gila River Cellular General Partnership, an Arizona general
partnership.
GUARANTOR means, individually, and GUARANTORS means, collectively, any
party at any time obligated to Lenders pursuant to a Guaranty.
GUARANTY means, collectively (a) the Guaranty (or with respect to
Guarantors under the Second Amended and Restated Credit Agreement, the Third
Amended and Restated Guaranty), in substantially the form and upon the terms of
EXHIBIT F, executed and delivered by any Person pursuant to the requirements of
the Loan Papers; and (b) any amendments, modifications, supplements,
restatements, ratifications, or reaffirmation of any Guaranty made in accordance
with the Loan Papers.
HAZARDOUS SUBSTANCE means petroleum products and items defined in the
Environmental Control Statutes as "HAZARDOUS SUBSTANCES," "HAZARDOUS WASTES,"
"POLLUTANTS," or "CONTAMINANTS" and any other toxic, reactive, corrosive,
carcinogenic, flammable, or hazardous substance or other pollutant.
INDEBTEDNESS of any Person means and includes all obligations of such
person which, in accordance with GAAP, shall be classified on a balance sheet of
such Person as liabilities of such Person and in any event shall include all (a)
obligations of such Person for borrowed money or which have been incurred in
connection with the acquisition of property or assets, (b) obligations secured
by any lien upon property or assets owned by such Person, notwithstanding that
such Person has not assumed or become liable for the payment of such
obligations, (c) obligations created or arising under any conditional sale or
other title retention agreement with respect to property acquired by such
Person, notwithstanding the fact that the rights and remedies of the seller,
lender, or lessor under such agreement in the event of default are limited to
repossession or sale of property, (d) Capitalized Leases, (e) guaranties, (f)
letters of credit and letter of credit reimbursement obligations, and (g) net
payments under Interest Rate Agreements.
INTEREST EXPENSE means, for any period of calculation thereof, for any
Person, the aggregate amount of all interest (including commitment fees) on all
Indebtedness 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 Indebtedness; 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 Interest Rate Agreements; and the interest component of any
Indebtedness that is guaranteed or secured
THIRD AMENDED AND
10 RESTATED CREDIT AGREEMENT
by such Person), and all cash premiums or penalties for the repayment,
redemption, or repurchase of Indebtedness.
INTEREST RATE AGREEMENTS means, any interest rate protection agreement,
interest rate future agreement, interest rate option agreement, interest rate
swap agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedge agreement, option, or future contract, or other similar
agreement or arrangement.
INTEREST PERIOD means, with respect to each Eurodollar Portion, a period of
one, two, three, or six months' duration (or such other periods requested by
Borrower and available from Lenders in their sole discretion), as Borrower may
elect, during which the Eurodollar Rate is applicable; PROVIDED, HOWEVER, that
(a) interest on each Portion (other than Base Portions) shall accrue from and
including the first day of its Interest Period to, but excluding, the day on
which such Interest Period expires; (b) if any Interest Period would otherwise
end on a day which is not a Business Day, such Interest Period shall be extended
to the next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day, as applicable (subject to CLAUSE (iii) below); and (c)
any Interest Period for a Eurodollar Portion which begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of a calendar month.
LAWS means all applicable statutes, laws, treaties, ordinances, tariff
requirements, rules, regulations, orders, writs, injunctions, decrees,
judgments, opinions, or interpretations of any Governmental Authority.
LC EXPOSURE means, at any time and without duplication, the SUM of (a) the
aggregate undrawn portion of all uncancelled and unexpired Letters of Credit
PLUS (b) the aggregate unpaid reimbursement obligations of Borrower in respect
of drawings or drafts under any Letter of Credit.
LC SUBFACILITY means a subfacility for the issuance of Letters of Credit
(the LC Exposure in connection with which may never exceed $20,000,000), as
described in and subject to the limitations of SECTION 3.
LENDER means, individually, and LENDERS means, collectively, the lenders
set forth on SCHEDULE 2.1 attached hereto, their respective successors and
assigns, and any additional lenders which become parties to this Agreement after
the date hereof, but shall not include any lender which is replaced hereunder.
LETTER OF CREDIT means, individually, and LETTERS OF CREDIT means,
collectively, the letter(s) of credit issued hereunder in the form agreed upon
among Borrower, Administrative Agent, and the beneficiary thereof at the time of
issuance thereof and participated in by Lenders pursuant to the terms and
conditions of SECTION 3 hereof.
LETTER OF CREDIT AGREEMENT means a letter of credit application and
agreement (in form and substance satisfactory to Administrative Agent) submitted
by Borrower to Administrative Agent for a Letter of Credit for its own account
(and for its benefit or the benefit of any other Company); PROVIDED THAT, this
Agreement shall control any conflict between this Agreement and any such Letter
of Credit Agreement.
THIRD AMENDED AND
11 RESTATED CREDIT AGREEMENT
LETTER OF CREDIT REQUEST FORM means the certificate in the form attached as
EXHIBIT B-2 hereto to be delivered by Borrower to Administrative Agent as a
condition of each issuance of a Letter of Credit pursuant to SECTION 3.4 hereof.
LOAN means, on any date of determination, the sum of the outstanding
principal balance under the Commitment and the LC Exposure, together with
interest accrued thereon and fees and expenses incurred in connection therewith.
LOAN PAPERS means (a) this Agreement, the Notes, the Collateral Security
Documents, and all other agreements, documents, and instruments ever delivered
pursuant to, or in connection with, this Agreement, (b) all agreements,
documents, or instruments in favor of Agents, Managing Agents, Co-Agents, or
Lenders ever delivered pursuant to this Agreement or otherwise delivered in
connection with all or any part of the Obligation, (c) all letters of credit and
Letter of Credit Agreements issued hereunder, (d) any Interest Rate Agreements
between any Company or Guarantor and any Lender or any Affiliate of any Lender;
and (e) any and all future renewals, extensions, restatements, reaffirmations,
or amendments of, or supplements to, all or any part of the foregoing.
LOCAL AUTHORITIES means, individually and collectively, the state and local
governmental authorities and administrative agencies which govern the commercial
or industrial facilities owned or operated by Borrower, a Guarantor, or any
Company.
LOC CONTRIBUTION has the meaning assigned to it in SECTION 3.6 hereof.
MANAGING AGENTS means, collectively, CoBank, ACB; Barclays Bank PLC; and
PNC Bank, National Association.
MATERIAL ADVERSE EFFECT 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 Agents 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) Event of Default or
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.
MAXIMUM PRINCIPAL AMOUNT means the maximum principal amount of the Loan
which each Lender has agreed to lend hereunder (including, without limitation,
such Lender's participation in the issuance of Letters of Credit) as set forth
in SECTION 2.3 hereof.
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
THIRD AMENDED AND
12 RESTATED CREDIT AGREEMENT
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 Indebtedness (other than the Obligation) secured by the
respective asset or assets being sold, which Indebtedness is required to be
repaid as a result of such Significant Sale; (b) with respect to any
incurrence of Indebtedness, cash (freely convertible into Dollars) received,
on or after the date of incurrence of such Indebtedness, by any Company from
the incurrence of such Indebtedness after (i) payment of all reasonable
attorneys' fees and usual and customary underwriting commissions, closing
costs, and other reasonable expenses associated with such incurrence of
Indebtedness, (ii) deduction of all deposits, escrow amounts, or other
reserves required to be maintained by any Company in connection with such
Indebtedness, and (iii) deductions for the amount of any other Indebtedness
(other than the Obligation) which is required to be repaid concurrently with
or otherwise as a result of the incurrence of such Indebtedness; 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.
NEW GRTI means Gila River Telecommunications Subsidiary, Inc., a
corporation organized pursuant to Gila River Indian Resolution Number GR-10-97.
NEW GUARANTOR has the meaning specified in SECTION 8.11(c) hereof.
NOTES means the promissory notes in the form of EXHIBIT A attached hereto
and delivered by Borrower to Lenders pursuant to SECTION 7.1 hereof, as each may
be amended modified, restated or divided from time to time.
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 Agent, any Managing 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 and, unless otherwise indicated,
as calculated at any date of determination with respect to the most recently
ended Rolling Period, 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 Cellular
Partnership Obligor (other than GRCGP) 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
THIRD AMENDED AND
13 RESTATED CREDIT AGREEMENT
Cellular Partnership or Cellular Partnership Obligor for the applicable
period of determination shall be included in Operating Cash Flow; PROVIDED
FURTHER THAT, to the extent a "NEW GUARANTOR" has been designated in
accordance with SECTION 8.11, the Operating Cash Flow of such New Guarantor
shall be included in the Company's Operating Cash Flow commencing with the
fiscal quarter determined in accordance with SECTION 8.11. Additionally, in
calculating Operating Cash Flow, (a) Borrower may include: (i) 100% of the
Operating Cash Flow of GRCGP on or prior to September 30, 1998; (ii)
thereafter and for so long as Borrower has not been repaid in full on the
loan to New GRTI permitted under SECTION 9.3(c) (the "GRTI LOAN"), Borrower
may include 90% of the Operating Cash Flow of GRCGP; and (iii) after
repayment of the GRTI Loan, Borrower may include 75% of the Operating Cash
Flow of GRCGP; PROVIDED THAT, to the extent Operating Cash Flow attributable
to minority partners is included in the calculations under CLAUSES (i) or
(ii) preceding, such amount may only be included if (i) such minority
partners have pledged their partnership interests in GRCGP to Borrower as
security for a loan to such minority partners (which loan and related liens
shall have been collaterally assigned to Administrative Agent for the benefit
of Lenders); and (ii) such minority partners have agreed (and have notified
GRCGP of such agreement) that a percentage of the distributions of GRCGP
attributable to their respective interests are to be paid directly to
Borrower. 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 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.
OPERATIONS means Xxxxxx Cellular Operations Company, a wholly-owned
Subsidiary of Communications.
PARTICIPATION CERTIFICATES is defined in SECTION 8.27.
PARTNERSHIP AGREEMENT means, individually, and PARTNERSHIP AGREEMENTS
means, collectively, on any date of determination the partnership agreements
which create the Cellular Partnerships, as each may be amended from time to time
in accordance with the terms hereof and thereof.
PBGC means the Pension Benefit Guaranty Corporation, or any successor
thereto.
THIRD AMENDED AND
14 RESTATED CREDIT AGREEMENT
PERMITTED ACQUISITION means:
(a) Acquisitions by any Company (other than GRCGP) 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 for this
purpose only on a consolidated basis for Communications and its Restricted
Subsidiaries and Unrestricted Subsidiaries, after giving pro forma effect to
any proposed Acquisition) is greater than 8.5 to 1.0, 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 proposed
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;
(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 Event of
Default shall exist or occur as a result of, and after giving effect to, such
Acquisition; and
(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
(b) 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 C-2.
THIRD AMENDED AND
15 RESTATED CREDIT AGREEMENT
PERMITTED ACQUISITION LOAN CLOSING CERTIFICATE means a certificate signed
by a Responsible Officer of Borrower, substantially in the form of EXHIBIT C-3.
PERMITTED INVESTMENT means an investment in (a) short term certificates of
deposit, (b) obligations fully guaranteed by the United States government, (c)
commercial paper maturing not in excess of 365 days from the date of acquisition
and rated P-1 by Xxxxx'x Investors Service, Inc. or A-1 by Standard & Poors
Ratings Service on the date of acquisition, (d) indebtedness maturing not in
excess of 365 days from the date of acquisition and rated A or better by Xxxxx'x
Investors Service, Inc. or Standard & Poors Ratings Service on the date of
acquisition, (e) Participation Certificates in CoBank (as defined in
SECTION 8.27 hereof), (f) unsecured and unguaranteed subordinated loans and
advances to Communications, on terms and conditions satisfactory to Agents,
(g) capital contributions and other investments in or between Restricted
Companies; and (h) investments in Unrestricted Companies existing on the
Effective Date and identified on SCHEDULE 9.8.
PERSON means any individual, entity, or governmental authority.
PLAN means any employee pension benefit or employee welfare benefit plan as
defined in SECTIONS 3(1) or (2) of ERISA maintained or sponsored by, contributed
to, or covering employees of, any Borrower, any Restricted Subsidiary of
Borrower, or any ERISA Affiliate.
PLEDGE AGREEMENT means, individually, and PLEDGE AGREEMENTS means,
collectively, (a) the Amended and Restated Pledge Agreement (substantially in
the form and upon the terms of EXHIBIT E) executed and delivered by
Communications or any other Person pursuant to the requirements of the Loan
Papers; and (b) any amendments, modifications, supplements, ratifications, or
restatements of any Pledge Agreement made in accordance with the Loan Papers.
PORTION means a portion of a Loan as to which Borrower has elected a
specific interest rate and, with respect to a Portion bearing interest at the
Eurodollar-Based Rate, an Interest Period.
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.
PRO FORMA DEBT SERVICE means, with respect to the Companies, on any date of
determination, the sum of (a) Pro Forma Interest Expense as of such date, PLUS
(b) principal payments scheduled to be made on Total Debt of the Companies for
the twelve months following the date of determination and with respect to the
Loan as of any date of determination, the difference between the then-current
outstanding principal amount of the Loan and the amount to which the 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"), as
calculated for the Companies on a consolidated basis, the SUM of the results of
the following calculation made separately with respect to each Portion of the
Loan and each other loan or other evidence of Indebtedness of any Company (each
a "SUBJECT LOAN") for the purposes hereof:
THIRD AMENDED AND
16 RESTATED CREDIT AGREEMENT
{[A + B] /2} x C
where:
A = The aggregate outstanding principal Indebtedness under the
Subject Loan at the beginning of the Subject Period.
B = The aggregate outstanding principal Indebtedness under the
Subject Loan, at the end of the Subject Period, taking into
account all scheduled 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 SHARE means, as to a Lender, the ratio which the outstanding
principal balance of its portion of the Loan bears to the aggregate outstanding
principal balance of the Loan, at any time; or if no indebtedness is outstanding
under the Loan, the ratio which such Lender's Maximum Principal Amount bears to
the Commitment.
REGULATION D means Regulation D of the Board of Governors of the Federal
Reserve System, comprising PART 204 of TITLE 12, Code of Federal Regulations, as
amended from time to time, and any successor thereto.
RELEASE means any spill, leak, emission, discharge, or the pumping,
pouring, emptying, disposing, injecting, escaping, leaching, or dumping of a
Hazardous Substance.
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 aggregate unpaid
principal balance of all Advances hereunder, together with the aggregate unpaid
reimbursement obligations of Borrower in respect of drawings or drafts under
Letters of Credit.
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 Loans, "EUROCURRENCY LIABILITIES" (as such terms 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 Portions. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Reserve
Requirement.
THIRD AMENDED AND
17 RESTATED CREDIT AGREEMENT
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 Agents.
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 any 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, (a) with respect
to Borrower, all Subsidiaries of Borrower, OTHER THAN Unrestricted Subsidiaries
of Borrower; and (b) with respect to Communications, all Subsidiaries of
Communications, OTHER THAN Unrestricted Subsidiaries of Communications.
ROLLING PERIOD means, on any date of determination, the most recent four
fiscal quarters ended March 31, June 30, September 30, or December 31.
SECOND AMENDED AND RESTATED AGREEMENT has the meaning given to such term in
the Recitals to this Agreement.
SECOND AMENDED AND RESTATED LENDER means any lender party to the Second
Amended and Restated Agreement immediately prior to the Effective Date.
SECURITY AGREEMENT means, individually, and SECURITY AGREEMENTS means,
collectively, (a) the Pledge, Assignment, and Security Agreement (or with
respect to the Companies and Cellular Partnership Obligors party to the Second
Amended and Restated Credit Agreement, the Third Amended and Restated Security
Agreement), substantially in the form and upon the terms of EXHIBIT D, executed
and delivered by any Person pursuant to the requirements of the Loan Papers; and
(b) any amendments, modifications, supplements, ratifications, or restatements
of any Security Agreement made in accordance with the Loan Papers.
SENIOR LEVERAGE RATIO means, on any date of determination thereof, the
ratio of (a) Total Debt of the Companies to (b) Operating Cash Flow of the
Companies.
SHARES of any corporation means any and all shares of capital stock of such
corporation of any class or other shares, interests, participation, or other
equivalents (however designated) in the capital of such corporation.
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 9.7(a) 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; PROVIDED THAT, the disposition of assets
pursuant to SECTION 9.7(a)(iii) and (iv) shall not be considered a Significant
Sale.
THIRD AMENDED AND
18 RESTATED CREDIT AGREEMENT
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 Indebtedness as it matures, and (c) such Person does not
have unreasonably small capital to conduct such Person's businesses.
SUBORDINATED DEBT means any indebtedness of Borrower, Communications, or
any Guarantor subordinated to the Loan with subordination provisions, in form
and substance satisfactory to Agents.
SUBORDINATION AGREEMENT means, individually, and AFFILIATE SUBORDINATION
AGREEMENTS means, collectively, (a) the Affiliate Subordination Agreements and
reconfirmations thereof executed and delivered by Affiliates of Borrower and
Guarantors pursuant to the Second Amended and Restated Agreement, as amended and
ratified pursuant to this Agreement; (b) any other Affiliate Subordination
Agreement (in form and substance satisfactory to Agents) executed and delivered
by any Person pursuant to the requirements of the Loan Papers; and (c) any
amendments, modifications, supplements, ratifications, or restatements of any
Affiliate Subordination Agreement made in accordance with the Loan Papers.
SUBSIDIARY means, individually, and SUBSIDIARIES means, collectively, with
respect to Borrower or any Guarantor, (a) any corporation of which such Borrower
or Guarantor (or one or more other Subsidiaries of such Borrower or Guarantor)
shall at the time own Shares (however designated) having ordinary voting power
for the election of at least a majority of the board of directors (or other
governing body) of such corporation, other than Shares having such power only by
reason of the happening of a contingency, and (b) any partnership (limited or
general) of which such Borrower or Guarantor (or one or more other Subsidiaries
of such Borrower or Guarantor) shall at any time be the general partner or own
fifty percent (50%) or more of the issued and outstanding partnership interests.
SYSTEM means, individually, and SYSTEMS means, collectively, the wireless
cellular communication systems and personal communications systems owned,
operated, or managed by any Company on the Effective Date and any additional
communications system acquired by Borrower or a Guarantor to the extent
permitted by SECTION 9.8 after the Effective Date.
TAX SHARING AGREEMENT means that certain consolidated income tax payment
agreement dated February 28, 1997, entered into by Communications and the
Subsidiaries of Communications.
TOTAL DEBT means, 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, any amounts for which such Person is contingently
liable to provide, as equity or debt, advances to other parties, any class or
series of capital stock that by its terms is required to be redeemed prior to
its stated final redemption date or otherwise requires cash dividend payments to
be made prior to the final redemption of such stock. With respect to the
Companies, TOTAL DEBT shall exclude any Subordinated Debt owed by any Company to
Communications or any Subsidiary of Communications not owned by Borrower and
shall include any Indebtedness of any New Guarantor designated pursuant to
SECTION 8.11, commencing with the fiscal quarter determined in accordance with
SECTION 8.11.
THIRD AMENDED AND
19 RESTATED CREDIT AGREEMENT
TOTAL LEVERAGE RATIO means, as of the last day of the most recently ended
fiscal quarter, with respect to Communications and its Restricted Subsidiaries,
the ratio of (a) Communications Total Debt to (b) Communications Operating Cash
Flow.
TRIGGERING EVENT means the occurrence of any Event of Default, other than
an Event of Default resulting from the breach of any representation or warranty
set forth in SECTION 5; PROVIDED, HOWEVER, that (a) with respect to the
Communications Bond Debt, noncompliance with any covenant (i) relating to
payment of dividends or other distributions to Communications or its Restricted
Subsidiaries, (ii) relating to inter-company loans to Communications and its
Restricted Subsidiaries, (iii) restricting payments on inter-company loans from
Communications and its Restricted Subsidiaries, or (iv) restricting the transfer
of assets to Communications and its Restricted Subsidiaries, shall be a
TRIGGERING EVENT only upon Borrower's non-compliance with the financial
covenants as set forth in the Commitment Letter and Summary of Terms and
Conditions for the Second Amended and Restated Credit Agreement dated as of
February 5, 1997, notwithstanding any amendments or modifications thereto after
February 5, 1997 (including any modifications thereto contemplated herein or in
any other Loan Paper); and (b) with respect to the Preferred Stock or any
Exchange Debenture, any Event of Default that results from Borrower's failure to
comply with the financial covenants in SECTIONS 8.14 through 8.20 and that
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 SECTIONS 8.14 through 8.20 on
the Closing Date, notwithstanding any future amendments or modifications of such
provisions.
TYPE shall mean any type of Portion (I.E., a Base Rate Portion or a
Eurodollar Portion).
UNRESTRICTED SUBSIDIARY means, at any time of determination thereof, (a)
with respect to Borrower, (i) Xxxxxx Wireline Company, (ii) any other Subsidiary
of Borrower designated from time to time as an "UNRESTRICTED SUBSIDIARY" by
Borrower's Board of Directors, and (iii) any Subsidiary of an Unrestricted
Subsidiary of Borrower; and (b) with respect to Communications, (i) Operations,
(ii) any other Subsidiary of Communications designated from time to time as an
"UNRESTRICTED SUBSIDIARY" by Communications' Board of Directors, and (iii) any
Subsidiary of an Unrestricted Subsidiary of Communications; PROVIDED THAT, the
Boards of Directors of Borrower and Communications may make such designation of
an "UNRESTRICTED SUBSIDIARY" only if (A) immediately before and after giving pro
forma effect to such designation, no Default or Event of Default then exists or
arises as a result thereof; (B) such designated Unrestricted Subsidiary does not
own any capital stock of Borrower, Communications, or any Restricted Subsidiary
of Borrower or Communications; PROVIDED THAT, determinations to be made
"IMMEDIATELY BEFORE" such designation shall be made (and all calculations with
respect to financial covenant compliance shall be calculated) as of the Business
Day immediately preceding the proposed date of designation of the Unrestricted
Subsidiary; (C) such designated Unrestricted Subsidiary does not hold a Lien on
any assets of Borrower, Communications, or any Restricted Subsidiary of Borrower
or Communications; (D) after giving pro forma effect to such designation, any
investment of Borrower or any Restricted Subsidiary of Borrower in such
Unrestricted Subsidiary would constitute an investment permitted under SECTION
9.8; (E) neither Borrower, Communications, nor any Restricted Subsidiary of
Borrower or Communications shall have issued any guaranty or credit support or
be subject to any recourse with respect to the obligations of the designated
Unrestricted Subsidiary; (F) on and after the date such Subsidiary is designated
as an Unrestricted Subsidiary, any Indebtedness owed to such designated
Unrestricted Subsidiary by Communications, Borrower, or any Restricted
Subsidiary of Communications or Borrower, shall be included in the calculation
of "COMMUNICATIONS TOTAL DEBT" or "TOTAL DEBT," as the case may be, and shall
THIRD AMENDED AND
20 RESTATED CREDIT AGREEMENT
be incurred or maintained in compliance with SECTIONS 9.1(f), 2.5(b), and
2.9(b), including any commitment reductions or mandatory prepayments required
thereunder; and (G) Required Lenders shall have consented to such designation
in writing.
WIRELINE SPINOFF means the proposed transaction or series of transactions
pursuant to which the stock or assets of Xxxxxx Wireline Company and its
Subsidiaries are transferred to any Person other than Borrower and its
Subsidiaries, SO LONG AS (i) no Event of Default or Default exists or arises as
a result of such transaction, (ii) such transaction is structured on an
arms-length basis and on such terms and conditions as are customary between and
among unrelated entities, and (iii) all Indebtedness owed by Xxxxxx Wireline
Company or any Subsidiary thereof to Communications or any Restricted Subsidiary
thereof is repaid in full on or prior to consummation of such Wireline Spinoff.
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).
1.2 RULES OF CONSTRUCTION.
(a) GAAP. Except as otherwise provided herein, financial and
accounting terms used in the foregoing definitions or elsewhere in this
Agreement shall be defined in accordance with GAAP. 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 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.
(b) USE OF TERM "CONSOLIDATED". Any term defined in SECTION 1.1
hereof, when modified by the word "CONSOLIDATED," shall have the meaning
given to such term herein as to Communications or Borrower, as
applicable, and all entities whose accounts, financial results, or
position, for either federal income tax or financial accounting purposes,
are consolidated with those of Communications or Borrower, as applicable,
in accordance with GAAP.
(c) 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
THIRD AMENDED AND
21 RESTATED CREDIT AGREEMENT
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.
SECTION 2 REVOLVING CREDIT COMMITMENT.
2.1 THE FACILITY.
(a) LOAN. From time to time prior to the Final Maturity Date,
subject to satisfaction of the applicable conditions set forth in SECTION
7 hereof and the provisions below, each Lender on a several basis shall
make Advances to Borrower up to such Lender's respective Maximum
Principal Amount, which Borrower may repay and reborrow, up to the amount
of the Commitment (as reduced by the LC Exposure), as the Commitment may
be reduced from time to time in accordance with the terms hereof.
(b) NO NOVATION; FIRST ADVANCE. On the Effective Date, this
Agreement amends and restates the Second Amended and Restated Credit
Agreement; PROVIDED, HOWEVER, that the execution and delivery of this
Agreement and the other Loan Papers shall not in any circumstances be
deemed to have terminated, extinguished, or discharged the indebtedness
under the Second Amended and Restated Credit Agreement or the collateral
security therefor, all of which indebtedness and collateral security
shall continue under and be governed by this Agreement and the other Loan
Papers. On the Effective Date, each Lender shall Advance its respective
Pro Rata Share of the first Advance, which may be netted against its
outstandings under the Second Amended and Restated Credit Agreement and
shall be used to repay all outstanding indebtedness under the Second
Amended and Restated Credit Agreement due the Second Amended and Restated
Lenders which are not Lenders.
(c) ASSIGNMENTS AND ASSUMPTIONS AMONG LENDERS. The Lenders hereby
agree among themselves (and Borrower and Guarantors hereby consent to
such agreement) that, concurrently with the Effective Date, there shall
be deemed to have occurred assignments and assumptions with respect to
the Obligation, liens, rights, and obligations under this Agreement and
the other Loan Papers (including, without limitation, the Commitment, the
Advances, and the Letters of Credit) such that, after giving effect to
such assignments and assumptions, the Maximum Principal Amount of each
Lender's Commitment and the Commitment percentage of each Lender are as
stated on SCHEDULE 2.1, and the Lenders hereby make such assignments and
assumptions. The Lenders shall make all appropriate payments and
adjustments among themselves to effectuate the appropriate purchase price
for and other amounts payable with respect to such assignments and
assumptions.
2.2 PROMISSORY NOTE. The indebtedness of Borrower to each Lender under
the Loan will be evidenced by a Note executed by Borrower in favor of such
Lender in the form of EXHIBIT A hereto. The original principal amount of each
Lender's Note from Borrower will be such Lender's Maximum Principal Amount;
PROVIDED, HOWEVER, that notwithstanding the face amount of each such Note,
Borrower's liability under each such Note shall be limited at all times to its
aggregate actual indebtedness, including principal, interest, fees, and
obligations with respect to the LC Exposure.
The Notes issued hereunder amend and restate in their entirety, and are
substituted for, the Third Amended and Restated Promissory Note held by the
Second Amended and Restated Lenders, without any
THIRD AMENDED AND
22 RESTATED CREDIT AGREEMENT
discharge, satisfaction, or novation of the underlying indebtedness or any
collateral security thereof, all of which indebtedness and collateral security
remains outstanding under this Agreement and the related Loan Papers.
2.3 LENDERS' COMMITMENT. SCHEDULE 2.1 attached hereto sets forth the
names and addresses of Lenders and the Pro Rata Shares and Maximum Principal
Amounts in which Lenders shall participate in the Loan.
2.4 USE OF PROCEEDS. Funds advanced under the Loan shall be used by
Borrower to (a) refinance all existing indebtedness of Borrower under the Second
Amended and Restated Credit Agreement, (b) finance Capital Expenditures and
general corporate purposes of Borrower and each Restricted Subsidiary of
Borrower executing a guaranty, (c) finance Permitted Acquisitions, and (d) in
the absence of any Triggering Event (i) fund distributions and dividends to
Communications to enable Communications to pay regularly-scheduled, semi-annual
interest payments on the Communications Bond Debt to the extent permitted
herein, and (ii) after January 15, 2003, fund distributions and dividends to
Communications to enable Communications to pay required dividends or
distributions on the Preferred Stock or interest on the Exchange Debentures,
subject to acceptable terms and conditions as determined by Agents.
2.5 REDUCTIONS IN COMMITMENT.
(a) COMMITMENT REDUCTION DATES.
(i) The aggregate outstanding principal balance under the
Commitment on the Final Maturity Date shall be due and payable on the
Final Maturity Date.
(ii) On June 30, 2000, and on the last Business Day of each
March, June, September, and December thereafter until June 30, 2006
(each, a "COMMITMENT REDUCTION DATE"), the Commitment shall be reduced
by an amount equal to the Commitment as in effect on June 30, 2000,
multiplied by the percentage set forth below corresponding to the
respective Commitment Reduction Date:
FOR THE PERIOD ENDING QUARTERLY COMMITMENT
ON THE FOLLOWING DATE REDUCTION
--------------------- ---------
6/30/00 - 12/31/2000 3.333%
12/31/2001 3.750%
12/31/2002 3.750%
12/31/2003 4.375%
12/31/2004 4.375%
12/31/2005 3.750%
6/30/2006 5.000%
(b) MANDATORY COMMITMENT REDUCTION. Until such time as the Principal
Debt has been repaid in full and the Commitment has been terminated in
full, the Commitment shall be permanently reduced in the amounts and upon
the occurrence of the following events:
THIRD AMENDED AND
23 RESTATED CREDIT AGREEMENT
(i) Concurrently with any Debt Issuance by Borrower or any
Restricted Subsidiary of Borrower, the Commitment shall be permanently
reduced by an amount equal to 100% of the Net Cash Proceeds realized
by Borrower or any Restricted Subsidiary of Borrower from such Debt
Issuance;
(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 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; or
(iii) Concurrently with any Debt Issuance by Communications
(excluding the Communications Bond Debt), if the Total Leverage Ratio
is greater than 5.50 to 1.0, the Commitment shall be permanently
reduced by an amount equal to 100% of the Net Cash Proceeds realized
by Communications from such Debt Issuance.
(c) COMMITMENT REDUCTION PAYMENTS. On each Commitment reduction date
arising under CLAUSES (a) or (b) preceding, Borrower shall also make a
mandatory prepayment of the Principal Debt, if required pursuant to
SECTION 2.8 or 2.9(b) hereof, 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 Commitment reductions under
SECTION 2.5(b) shall be applied to the regularly-scheduled Commitment
reductions under SECTION 2.5(a) in inverse order of maturity.
(d) MANDATORY PREPAYMENTS. In addition, the Loan will be subject to
prepayments in connection with certain events, as set forth in SECTIONS 2.8
and 2.9 hereof.
(e) ACCELERATION. Notwithstanding the immediately preceding
subparagraphs, all indebtedness and obligations under the Loan Papers shall
be due and payable on the date of Administrative Agent's notice to Borrower
of the occurrence of an Event of Default, termination of the Commitment,
and acceleration of the Loan.
2.6 INTEREST. Portions of the Loan shall bear interest on the outstanding
principal amount thereof in accordance with the following provisions:
(a) INTEREST ON LOAN.
(i) At the election of Borrower, in accordance with the
provisions of SECTION 2.6(c) below, in the absence of an Event of
Default or Default hereunder, and prior to maturity, each Portion of
the Loan shall bear interest at either the Base Rate or the Adjusted
Eurodollar Rate, in each case, plus the Applicable Margin.
(ii) Notwithstanding the foregoing, upon the occurrence and
during the continuance of an Event of Default or Default hereunder,
including after maturity and before and after judgment, at the option
of Required Lenders and to the extent permitted by Law, the
outstanding principal balance of the Loan, and accrued interest
thereon, shall bear interest at the Default Rate; PROVIDED THAT, the
Default Rate shall automatically apply in the case of SECTION 3.2
where the Default Rate is specified.
THIRD AMENDED AND
24 RESTATED CREDIT AGREEMENT
(b) PROCEDURE FOR DETERMINING INTEREST PERIODS AND RATES OF INTEREST.
(i) If Borrower elects the Adjusted Base Rate to be applicable
to a Portion, such Borrower must notify Administrative Agent of such
election no later than 2:00 p.m. (Dallas, Texas time) on the Business
Day preceding the Business Day on which such Advance is to be made.
If Borrower elects the Eurodollar-Based Rate to be applicable to a
Portion, Borrower must notify Administrative Agent of (A) such
election and (B) the Interest Period selected prior to 10:00 a.m.,
Dallas, Texas time, at least three (3) Business Days prior to the date
of the applicable Advance or the commencement of the proposed Interest
Period. If Borrower does not provide the required notice for the
Eurodollar-Based Rate, then Borrower shall be deemed to have requested
that the Adjusted Base Rate shall apply to any Portion as to which the
Interest Period is expiring and to any new Advance until Borrower
shall have given proper notice of a change in or determination of the
rate of interest in accordance with this SECTION 2.6(b).
(ii) Borrower shall not elect more than six (6) different
Eurodollar Portions to be applicable to the Loan at one time.
(c) PAYMENT AND CALCULATION OF INTEREST. Interest shall be due and
payable on the last day of each Interest Period for each Eurodollar
Portion; PROVIDED, HOWEVER, that (i) with respect to Portions 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 Business
Day of each March, June, September, and December thereafter and on the
expiration of each Interest Period; and (ii) with respect to Base Portions,
Borrower shall pay interest on the last Business Day of each March, June,
September, and December, commencing on the first such date after the first
Base Portion is advanced hereunder. Interest shall be calculated in
accordance with the provisions of SECTION 2.6(a) hereof and (x) with
respect to Eurodollar Portions, on the basis of the actual number of days
elapsed over a year of three hundred sixty (360) days and (y) with respect
to Base Portions, on the basis of the actual number of days elapsed over a
year of 365 days (or, if appropriate, 366 days).
(d) 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 Obligations, 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
Advances as but a single extension of credit (and Lender and Borrower agree
that such is the case and that provision herein for multiple Advances 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
THIRD AMENDED AND
25 RESTATED CREDIT AGREEMENT
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.
2.7 ADVANCES.
(a) Borrower shall give Administrative Agent written notice of each
requested Advance under the Commitment specifying the date, amount, and
purpose thereof. Such notice shall be given at the time for providing the
requisite notices set forth in SECTION 2.6(c) hereof relating to the
election of interest rates. Each such notice shall be in the form of the
Advance Request Form attached hereto as EXHIBIT B-1, shall be certified by
the chief executive and chief financial officers of Borrower, and shall
contain the following information and representations, which shall be
deemed affirmed and true and correct as of the date of the requested
Advance:
(i) the aggregate amount of the requested Advance, which shall
be in multiples of not less than $5,000,000, or a greater integral
multiple of $1,000,000, or the unborrowed balance of the Commitment;
(ii) the purpose of the requested Advance;
(iii) confirmation of the interest rate(s) Borrower has
elected to apply to the Advance and, if more than one interest rate
has been elected, the amount of the Portion as to which each interest
rate shall apply;
(iv) with respect to any Eurodollar Portion, the Interest Period
selected;
(v) statements that the representations and warranties set
forth in SECTION 5 hereof are true and correct in all material
respects as of the date thereof; no Event of Default or Default
hereunder has occurred and is then continuing; and that there has
been no material adverse change in Communications and its Restricted
Subsidiaries or the Companies' financial condition, operations or
business since the date of the quarterly and audited annual
financial statements most recently delivered by Borrower to Lenders
pursuant to SECTIONS 7.1, 8.2 and 8.3 of this Agreement; and
(vi) if the requested Advance is to finance a Permitted
Acquisition, Borrower has complied with and delivered the items
required by SECTION 8.11(c), if applicable, and 9.8 hereof.
(b) Upon receiving a request for an Advance in accordance with ITEM
(a) above, Administrative Agent shall promptly request that each Lender
advance its Pro Rata Share of the requested Advance to Administrative
Agent. Each Lender shall advance its Pro Rata Share of the requested
Advance to Administrative Agent by delivering federal funds immediately
available at Administrative Agent's offices prior to twelve o'clock noon on
the date of the Advance. Subject to the satisfaction of the terms and
conditions hereof, Administrative Agent shall make the requested Advance
available to Borrower by crediting such amount to Borrower's deposit
account with Administrative Agent not later than two o'clock p.m. on the
day of the requested Advance; PROVIDED, HOWEVER, that in the event
Administrative Agent does not receive a Lender's share of the
THIRD AMENDED AND
26 RESTATED CREDIT AGREEMENT
requested Advance by such time as provided above, Administrative Agent
shall not be obligated to Advance such Lender's share.
(c) Unless Administrative Agent shall have been notified by a Lender
prior to the date such Lender's share of any such Advance is to be made by
such Lender that such Lender does not intend to make its share of such
requested Advance available to Administrative Agent, Administrative Agent
may assume that such Lender has made such proceeds available to
Administrative Agent on such date, and Administrative Agent may, in
reliance upon such assumption (but shall not be obligated to), make
available to Borrower a corresponding amount. If such corresponding amount
is not in fact made available to Administrative Agent by such Lender on the
date the Advance is made, Administrative Agent shall be entitled to recover
such amount, on demand from such Lender, together with interest thereon in
respect of each day during the period commencing on the date such amount
was made available to Borrower and ending on (but excluding) the date
Administrative Agent recovers such amount, from such Lender, at a rate per
annum, equal to the effective rate for overnight federal funds in New York
as reported by the Federal Reserve Bank of New York for such day (or, if
such day is not a Business Day, for the next preceding Business Day). If
such Lender (other than a Lender which is Administrative Agent) fails to
pay such amount forthwith upon such demand, Administrative Agent may
recover such amount from Borrower, with interest at the Adjusted Base Rate.
(d) Each request for an Advance pursuant to this SECTION 2.7 shall be
irrevocable and binding on Borrower.
2.8 REDUCTION AND TERMINATION OF COMMITMENT.
(a) BORROWER. Borrower shall have the right at any time and from
time to time, upon three (3) days prior written notice to Administrative
Agent, to reduce the Commitment in whole or in part Pro Rata among Lenders
in increments aggregating $1,000,000 or multiples thereof without penalty
or premium; PROVIDED THAT, on the effective date of such reduction,
Borrower shall make a prepayment of the Loan in an amount, if any, by which
the aggregate outstanding principal balance of the Loan, together with the
then-existing LC Exposure, exceeds the amount of the Commitment as then so
reduced, together with accrued interest on the amount so prepaid and
together with any amount which may be due pursuant to SECTION 2.10 hereof;
and PROVIDED FURTHER THAT, any voluntary Commitment reduction hereunder
shall be applied to the regularly-scheduled Commitment reductions under
SECTION 2.5(a) in inverse order of maturity.
(b) LENDERS. Pursuant to SECTION 12.2 hereof, Required Lenders shall
have the right to terminate the Commitment at any time following the
occurrence of any Event of Default hereunder, in their discretion and upon
notice to Borrower. Any payment following the occurrence of an Event of
Default, acceleration, and demand for payment shall include the payment of
any amounts due pursuant to SECTION 2.10 hereof.
(c) RESTORATION ONLY WITH CONSENT. Any termination or reduction of
the Commitment pursuant to SECTION 2.8(a) and (b) shall be permanent, and
the Commitment cannot thereafter be restored or increased without the
written consent of all Lenders.
THIRD AMENDED AND
27 RESTATED CREDIT AGREEMENT
2.9 PREPAYMENT; REPAYMENT.
(a) VOLUNTARY. Upon three (3) Business Day's prior written notice by
Borrower to Administrative Agent, with respect to any Eurodollar Portion
(and same day notice with respect to any Base Portion), Borrower may prepay
all or any portion of the outstanding principal balance under the Loan at
any time; PROVIDED THAT, (i) payments of the Loan hereunder prior to the
Final Maturity Date shall not reduce the Commitment and may be reborrowed;
(ii) such payments shall be applied in accordance with SECTION 2.9(c)
below; (iii) any prepayment shall be in an amount equal to or in excess of
$5,000,000 and multiples of $1,000,000 in excess thereof; and (iv) such
prepayment shall be accompanied by any amounts which may be due pursuant to
SECTION 4.5 hereof.
(b) MANDATORY. If an event described in SECTION 2.5(a) or (b) occurs
prior to the Final Maturity Date, and the Commitment is required to be
reduced by the amounts specified, and if following such reduction in the
Commitment, the amount of the Loan, together with the LC Exposure, exceeds
the Commitment as then reduced, the amount of such excess shall be paid by
Borrower as a prepayment of the Loan, TOGETHER WITH (i) all accrued and
unpaid interest on the principal amount so paid and (ii) any Consequential
Loss arising as a result thereof.
(c) APPLICATION. Required payments and reductions in the Commitment
shall be applied on the basis of each Lender's Pro Rata Share thereof.
2.10 PAYMENTS. All payments of principal, interest, fees, and other
amounts due hereunder, including any prepayments thereof, shall be made by
Borrower to Administrative Agent in immediately available funds before twelve
o'clock noon on any Business Day at the principal office of Administrative Agent
as set forth in SECTION 14.8. Borrower hereby authorizes Administrative Agent
to charge Borrower's account with Administrative Agent for all payments of
principal, interest, and fees when due hereunder.
2.11 COMMITMENT FEE. Following the date hereof, Borrower shall pay to
Administrative Agent, for the ratable account of Lenders, a commitment fee,
payable in installments in arrears, on each March 31, June 30, September 30, and
December 31, and on the Final Maturity 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 (i) the average daily Commitment exceeds
(ii) the sum of the principal amount then outstanding under the Loan plus the
LC Exposure in each case during the period from and including the last payment
date to and excluding the payment date for such installments. Commitment fees
shall be calculated on the basis of the 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.
2.12 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 Event of 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
THIRD AMENDED AND
28 RESTATED CREDIT AGREEMENT
payable on the principal balance hereof, and then to the remaining
Obligation in the order and manner as Borrower may direct.
(b) If a Default or Event of Default has occurred and is continuing
(or if Borrower fails to give directions as permitted under
SECTION 2.12(a)), any payment or prepayment (including proceeds from the
exercise of any rights) shall be applied in the following order: (i) to
the ratable payment of all fees, expenses, and indemnities for which
Administrative Agent or Lenders have not been paid or reimbursed in
accordance with the Loan Papers (as used in this SECTION 2.12(b)(i), a
"RATABLE PAYMENT" for any Lender or Administrative Agent shall be, on any
date of determination, that proportion which the portion of the total fees,
expenses, and indemnities owed to such Lender or Administrative Agent bears
to the total aggregate fees and indemnities owed to all Lenders and
Administrative Agent on such date of determination); (ii) to the ratable
payment of accrued and unpaid interest on the principal balance hereunder
(as used in this SECTION 2.12(b)(ii), "RATABLE PAYMENT" means, for any
Lender, on any date of determination, that proportion which the accrued and
unpaid interest owed to such Lender bears to the total accrued and unpaid
interest under the Loan Papers); (iii) to the ratable payment of any
reimbursement obligation with respect to any Letter of Credit issued
pursuant hereto which is due and payable and which remains unfunded by any
Advance hereunder; PROVIDED THAT, such payments shall be allocated ratably
among Administrative Agent (as the issuer of Letter of Credits) and the
Lenders which have funded their participation in such Letter of Credit;
(iv) to the ratable payment of the outstanding principal balance hereunder
(as used in this SECTION 2.12(b)(iv), "RATABLE PAYMENT" means for any
Lender, on any date of determination, that proportion which the outstanding
principal balance owed to such Lender hereunder bears to the aggregate
outstanding principal balance owed to all Lenders hereunder; (v) to the Pro
Rata payment of the remaining Obligation in such order as Required Lenders
may elect (PROVIDED THAT, Required Lenders will apply such proceeds in an
order that will minimize any Consequential Loss); and (vi) as a deposit
with Administrative Agent, for the benefit of 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 Letter of
Credits issued pursuant hereto.
2.13 ADMINISTRATIVE FEES. Borrower shall pay to Syndication Agent, solely
for its account, the Administrative Fees described in that certain letter
agreement dated as of January 7, 1998, among Borrower, Communications,
NationsBanc Xxxxxxxxxx Securities LLC, and Syndication Agent, which payments
shall be made on the dates specified and in amounts calculated in accordance
with such letter agreement.
SECTION 3 LETTERS OF CREDIT
3.1 AVAILABILITY OF CREDITS. Subject to the terms and conditions of this
Agreement and applicable Law, Administrative Agent agrees to issue Letters of
Credit upon Borrower's application therefor (denominated in Dollars), PROVIDED
THAT, (a) on any date of determination and after giving effect to any Letter of
Credit to be issued on such date, the sum of the borrowed portion of the
Commitment and the LC Exposure shall never exceed the Commitment then in effect,
(b) on any date of determination and after giving effect to any Letter of Credit
to be issued on such date, the LC Exposure shall never exceed $20,000,000,
(c) at the time of issuance of such Letter of Credit, no default or potential
Default shall have occurred and be continuing, and (d) each Letter of Credit
THIRD AMENDED AND
29 RESTATED CREDIT AGREEMENT
must expire NO LATER than the EARLIER of the thirtieth (30th) day prior to the
Final Maturity Date or one year from its issuance; PROVIDED THAT, any Letter of
Credit may provide for automatic renewal for successive twelve month periods
(but no renewal period may extend beyond the thirtieth (30th) day prior to the
Final Maturity Date) unless Administrative Agent has given prior notice to the
applicable beneficiary of its election not to extend such Letter of Credit.
3.2 LENDER PARTICIPATION IN LETTER OF CREDIT SUBFACILITY.
(a) Immediately upon the issuance by Administrative Agent of any
Letter of Credit, Administrative Agent shall be deemed to have sold and
transferred to each other Lender, and each other such Lender shall be
deemed irrevocably and unconditionally to have purchased and received from
Administrative Agent, without recourse or warranty, an undivided interest
and participation, to the extent of such Lender's Commitment percentage as
set forth on SCHEDULE 2.1, in such Letter of Credit, and all rights of
Administrative Agent in respect thereof (OTHER THAN rights to receive
certain fees payable solely to Administrative Agent in connection with any
Letter of Credit). Upon the issuance, renewal, or extension of a Letter of
Credit, Administrative Agent shall provide copies of such Letter of Credit
to each other Lender.
(b) In order to induce Administrative Agent to issue and maintain
Letters of Credit and Lenders to participate therein, Borrower agrees to
pay or reimburse Administrative Agent (i) on the date on which any draft is
presented under any Letter of Credit, the amount of any draft paid or to be
paid by Administrative Agent and (ii) promptly, upon demand, the amount of
any fees (in addition to the fees described in SECTION 7) which
Administrative Agent customarily charges to a Person similarly situated in
the ordinary course of its business for amending the Letter of Credit
Agreements, for honoring drafts, and for taking similar action in
connection with letters of credit. Borrower's obligations under this
SECTION 3.2 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim, or defense to
payment which Borrower may have at any time against Administrative Agent or
any other Person, and shall be made in accordance with the terms and
conditions of this Agreement under all circumstances, including, without
limitation, any of the following circumstances: (A) any lack of validity or
enforceability of this Agreement or any of the Loan Papers; (B) the
existence of any claim, setoff, defense, or other right which Borrower may
have at any time against a beneficiary named in a Letter of Credit, any
transferee of any Letter of Credit (or any person for whom any such
transferee may be acting), Administrative Agent, any Lender, or any other
Person, whether in connection with this Agreement, any Letter of Credit,
the transactions contemplated herein, or any unrelated transactions
(including any underlying transaction between Borrower and the beneficiary
named in any such Letter of Credit); (C) any draft, certificate, or other
document presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; and (D) the occurrence
of any Potential Default or Default. To the extent any funding of a draft
has been made by Lenders pursuant to SECTION 3.6, Administrative Agent
shall promptly distribute any such payments received from Borrower with
respect to such draft to all Lenders funding such draft according to their
ratable share. Interest on any amounts remaining unpaid by Borrower under
this clause at any time from and after the date such amounts become payable
until paid in full shall be payable by Borrower to Administrative
THIRD AMENDED AND
30 RESTATED CREDIT AGREEMENT
Agent at the rate specified and calculated in accordance with SECTION
2.6(a)(ii). In the event any payment by Borrower received by
Administrative Agent with respect to any Letter of Credit and
distributed to Lenders on account of their participations therein is
thereafter set aside, avoided, or recovered from Administrative Agent in
connection with any receivership, liquidation, or bankruptcy proceeding,
each Lender which received such distribution shall, upon demand by
Administrative Agent, contribute such Lender's ratable portion of the
amount set aside, avoided, or recovered, TOGETHER WITH interest at the
rate required to be paid by Administrative Agent upon the amount
required to be repaid by it; and
(c) Each Letter of Credit issued under this SECTION 3 shall be
required by Borrower or a Guarantor in the ordinary course of its business.
3.3 COMMITMENT AVAILABILITY. The amount available under the Commitment as
from time to time in effect shall be reduced by the LC Exposure from time to
time in effect. The amount by which the Commitment is so reduced shall not be
available for Advances under SECTION 2.7 hereof, except Advances thereunder
which are made to reimburse Administrative Agent for draws under the Letters of
Credit as permitted pursuant to SECTION 3.5(b) hereof.
3.4 APPROVAL AND ISSUANCE.
(a) Borrower shall provide Administrative Agent not later than 10:00
a.m. Dallas, Texas time, three (3) Business Days before any Letter of
Credit is to be issued, prior written notice of each request for the
issuance of a Letter of Credit by delivery of a Letter of Credit Request
Form in the form attached as EXHIBIT B-2 hereto and a Letter of Credit
Agreement with respect thereto. Each Letter of Credit Request Form
submitted by Borrower to Administrative Agent requesting the issuance of a
Letter of Credit shall be certified by the chief executive or chief
financial officer of Borrower, and shall, in addition to the matters
described in SECTION 2.7 hereof, list all Letters of Credit outstanding for
the account of Borrower at that time and, for each Letter of Credit so
listed, its face amount outstanding, undrawn balance, and expiration date.
It shall be a condition to the issuance of any Letter of Credit that
Administrative Agent shall have received a Letter of Credit Request Form
and a Letter of Credit Agreement as described above and that the conditions
set forth in SECTION 7 shall be satisfied.
(b) Administrative Agent will promptly provide to Lenders written or
telephonic notification of Administrative Agent's receipt of the Letter of
Credit Request Form and the Letter of Credit Agreement which shall state
(i) the amount of the Letter of Credit requested and (ii) the expiration
date of the requested Letter of Credit.
3.5 OBLIGATIONS OF BORROWER.
(a) Borrower agrees to pay to Administrative Agent in connection with
each Letter of Credit issued hereunder: (i) immediately upon the demand of
Administrative Agent, on behalf of all Lenders, the amount paid by each
Lender with respect to such Letter of Credit; (ii) immediately upon demand
of Administrative Agent, the amount of any draft presented purporting to be
drawn under such Letter of Credit; PROVIDED THAT, the draft and
accompanying documents conform to the terms of the Letter of Credit but
subject to the
THIRD AMENDED AND
31 RESTATED CREDIT AGREEMENT
terms of SECTION 3.8 (whether or not Administrative Agent has at such
time honored such draft) and any other amounts paid thereunder (it being
understood that Administrative Agent is not required to make demand upon
or proceed against any Lender or other party or to resort to any
Collateral before obtaining payment from Borrower); (iii) interest on
any indebtedness outstanding with respect to such Letter of Credit,
whether for funds paid on drafts on such Letter of Credit, or otherwise
(but such indebtedness shall not include undrawn balances of such Letter
of Credit issued hereunder), at the rate applicable to Base Portions
under SECTION 2.6(a)(i) hereof from the date of payment by
Administrative Agent (if not reimbursed by Borrower on the same day) to
the date one (1) Business Day after notice to Borrower of such payment,
and thereafter at the rate specified in SECTION 2.6(a)(ii) hereof; and
(iv) the following fees:
(A) For the ratable benefit of Lenders, in accordance with their
respective Pro Rata Share, a fee for each Letter of Credit, payable in
installments in arrears, so long as such Letter of Credit remains
outstanding. Such installments shall be paid for the period from and
including the date of issuance of the applicable Letter of Credit, to
but excluding the next quarterly payment date (as hereinafter
specified), and thereafter for the period from and including such
quarterly payment date to but excluding the next quarterly payment
date or (if earlier) the expiry date of such Letter of Credit; such
installments shall be paid on each March 31, June 30, September 30,
December 31, and (if earlier) the expiry date of such Letter of
Credit. Each such installment shall be in an amount equal to the
product of (a) the Applicable Margin for Eurodollar Portions in effect
on the date of payment of such fee (and applied on a per annum basis)
MULTIPLIED BY (b) the face amount of such Letter of Credit, and pro
rated for the period for which such installment is due;
(B) For the individual account of Administrative Agent, as
issuer of the Letters of Credit, a Letter of Credit issuance and
fronting fee for each Letter of Credit, payable in installments in
arrears, SO LONG as such Letter of Credit remains outstanding. Such
installments shall be paid for the period from and including the date
of issuance of the applicable Letter of Credit, to but excluding the
next quarterly payment date (as hereinafter specified), and thereafter
for the period from and including such quarterly payment date to but
excluding the next quarterly payment date or (if earlier) the expiry
date of such Letter of Credit; such installments shall be paid on each
March 31, June 30, September 30, December 31, and (if earlier) the
expiry date of such Letter of Credit. Each such installment shall be
in an amount equal to the product of (a) 0.250% per annum MULTIPLIED
BY (b) the face amount of such Letter of Credit, and pro rated for the
period for which such installment is due; and
(C) For the individual account of Administrative Agent, standard
administrative charges for Letter of Credit amendments.
Interest under the preceding CLAUSE (iii) shall be paid at the times and in
the manner set forth in SECTION 2.6 hereof, and shall accrue on amounts
paid on a Letter of Credit (if not reimbursed by Borrower on the same day)
from the date of payment by Administrative
THIRD AMENDED AND
32 RESTATED CREDIT AGREEMENT
Agent, whether or not demand is made, until such amounts are reimbursed by
Borrower whether before, at or after demand.
(b) On or before the Final Maturity Date, in the absence of a Default
or Event of Default, and subject to the provisions of SECTION 2.7 hereof,
Lenders hereby agree to advance funds to Borrower under the Loan to make
the payments required under SECTION 3.5(a)(i) and (ii) hereof. If any
payment by Administrative Agent of a draft drawn under a Letter of Credit
is for any reason (including, without limitation, the occurrence or
continuation of a Default or Event of Default hereunder) not reimbursed
prior to or on the date of such payment, the amount of such payment shall
thereupon be deemed for purposes hereof an Advance under SECTION 2.7 hereof
but payable upon the demand of Administrative Agent at the direction of
Required Lenders. Such demand reimbursement obligation shall be otherwise
subject to all the terms and conditions thereof as if advanced by Lenders
pursuant to SECTION 2.7 hereof (but without duplication).
3.6 PAYMENT BY LENDERS ON LETTERS OF CREDIT.
(a) With respect to each Letter of Credit, each Lender agrees that it
is irrevocably obligated to pay to Administrative Agent, for each such
Letter of Credit, such Lender's percentage share of the Commitment as set
forth in SCHEDULE 2.1 of each and every payment made or to be made by
Administrative Agent under such Letter of Credit (each such payment to be
made, a "LOC CONTRIBUTION"). Each Lender's LOC Contribution shall be due
from such Lender immediately upon, and in any event no later than the same
day as, receipt of written notice (which may be sent by telex or facsimile)
from Administrative Agent (except that if such notice is received after
3:00 p.m. on any Business Day, payment may be made on the following
Business Day, together with interest equal to the effective rate for
overnight funds in New York as reported by the Federal Reserve Bank of New
York for such day (or, if such day is not a Business Day, for the next
preceding Business Day) that (i) it has made a payment or (ii) a draft has
been presented purporting to be drawn on a Letter of Credit issued
hereunder. Such payment shall be made at Administrative Agent's offices in
immediately available federal funds.
(b) The obligation of each Lender to make its LOC Contribution
hereunder is absolute, continuing, and unconditional, and Administrative
Agent shall not be required first to make demand upon or proceed against
Borrower or any guarantor or surety, or any others liable with respect to
the applicable Letter of Credit and shall not be required first to resort
to any Collateral. LOC Contributions shall be made without regard to
termination of this Agreement or the Commitment, the existence of an Event
of Default or Default hereunder, the acceleration of indebtedness
hereunder, or any other event or circumstance.
3.7 COLLATERAL SECURITY.
(a) The indebtedness, liabilities, and obligations of Borrower under
this SECTION 3, however created or incurred, whether now existing or
hereafter arising, due or to become due, absolute or contingent, direct or
indirect, secured or unsecured, are among the obligations secured by the
security interests, liens, and encumbrances created by the Collateral
Security Documents delivered to Administrative Agent, and Administrative
Agent
THIRD AMENDED AND
33 RESTATED CREDIT AGREEMENT
and Lenders are entitled to the benefit of the Collateral granted
thereunder with respect to such indebtedness.
(b) Notwithstanding the payment in full of the Loan, the termination
of the Commitment, or the occurrence of the Final Maturity Date, the
Collateral shall continue to secure the indebtedness, liabilities, and
obligations of Borrower under this SECTION 3 until all Letters of Credit
shall have expired and all indebtedness, liabilities, and obligations under
this SECTION 3 shall have been paid in full.
(c) On the termination of the Commitment (or any partial termination
of the Commitment which reduces the Commitment to less than the LC
Exposure), the Final Maturity Date, and the occurrence of an Event of
Default, Required Lenders may require (or in the case of an Event of
Default occurring under SECTION 12.1(k), it shall be required
automatically) that Borrower deliver to Administrative Agent cash or U.S.
Treasury Bills with maturities of not more than 90 days from the date of
delivery (discounted in accordance with customary banking practice to
present value to determine amount) in an amount equal at all times to one
hundred ten percent (110%) of the Letter of Credit Exposure, such cash or
U.S. Treasury Bills and all interest earned thereon to constitute cash
Collateral for all such Letters of Credit. At such time as such Collateral
is required to be and has not been deposited, Administrative Agent on
behalf of Lenders shall be entitled to liquidate such of the other
Collateral for the Loan (if any) as is necessary or appropriate in its sole
judgment so as to create such cash Collateral.
(d) any cash Collateral deposited under CLAUSE (c) above, and all
interest earned thereon, shall be held by Administrative Agent and invested
and reinvested at the expense and the written direction of Borrower, in
U.S. Treasury Bills with maturities of no more than ninety (90) days from
the date of investment.
3.8 CANCELED LETTERS OF CREDIT. Borrower acknowledges that each Letter of
Credit will be deemed issued upon delivery to its beneficiary or Borrower. If
Borrower requests any Letter of Credit be delivered to Borrower rather than the
beneficiary, and Borrower subsequently cancels such Letter of Credit, Borrower
agrees to return it to Administrative Agent together with Borrower's written
certification that it has never been delivered to such beneficiary. If any
Letter of Credit is delivered to its beneficiary pursuant to Borrower's
instructions, no cancellation thereof by Borrower shall be effective without
written consent of such beneficiary to Administrative Agent and return of such
Letter of Credit to Administrative Agent. Borrower hereby agrees that if
Administrative Agent becomes involved in any dispute as a result of Borrower's
cancellation of any Letter of Credit, it shall indemnify Administrative Agent
and Lenders for all losses, costs, damages, expenses, and reasonable attorneys'
fees suffered or incurred by Administrative Agent and Lenders as a direct result
thereof.
3.9 GENERAL TERMS OF CREDITS. The following terms and conditions apply
with respect to each Letter of Credit (a "CREDIT") notwithstanding anything to
the contrary contained herein:
(a) Borrower assumes all risks of the acts or omissions of the
beneficiary of each Letter of Credit with respect to the use of the Letter
of Credit or with respect to the beneficiary's obligations to Borrower.
Administrative Agent agrees with each Lender that it will exercise and give
the same care and attention to each Letter of Credit as it gives to its
THIRD AMENDED AND
34 RESTATED CREDIT AGREEMENT
other letters of credit, and Administrative Agent's sole liability to each
Lender with respect to such Letter of Credit (OTHER THAN liability arising
from the gross negligence or willful misconduct of Administrative Agent)
shall be to distribute promptly to each Lender who has acquired a
participating interest therein such Lender's ratable portion of any
payments made to Administrative Agent by Borrower pursuant to this
SECTION 3. None of Lenders nor any of their officers or directors shall be
liable or responsible for, and Lenders hereby agree to indemnify and hold
Administrative Agent and any issuer of a Letter of Credit harmless (except
for the issuer's gross negligence or willful misconduct) with respect to:
(i) the use which may be made of the Letter of Credit or for any acts or
omissions of the beneficiary in connection therewith; (ii) the accuracy,
truth, validity, sufficiency, or genuineness of documents, or of any
endorsement thereon, even if such documents should in fact prove to be in
any or all respects false, misleading, inaccurate, invalid, insufficient,
fraudulent, or forged; (iii) the payment by Administrative Agent against
presentation of documents which do not comply with the terms of the Letter
of Credit, including failure of any documents to bear any reference or
adequate reference to a Letter of Credit; (iv) any other circumstances
whatsoever in making or failing to make payment under a Letter of Credit;
or (v) any inaccuracy, interruption, error, or delay in transmission or
delivery of correspondence or documents by post, telegraph, or otherwise.
In furtherance and not in limitation of the foregoing, Administrative Agent
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
(b) notwithstanding the foregoing, with respect to any Letter of
Credit, Borrower shall have a claim against Administrative Agent, and
Administrative Agent shall be liable to Borrower, to the extent, but only
to the extent, of any direct, as opposed to indirect or consequential,
damages suffered by Borrower caused by Administrative Agent's willful
misconduct or gross negligence.
(c) To the extent not inconsistent with this Agreement, the Uniform
Customs and Practices for Documentary Credits (as in effect on the date of
issue of any Letter of Credit) published by the international Chamber of
Commerce are hereby made a part of this Agreement with respect to
obligations in connection with each Credit.
(d) IN ADDITION TO AMOUNTS PAYABLE AS ELSEWHERE PROVIDED IN THIS
AGREEMENT, BORROWER HEREBY AGREES TO PROTECT, INDEMNIFY, PAY, AND SAVE
ADMINISTRATIVE AGENT AND EACH LENDER HARMLESS FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, LIABILITIES, DAMAGES, OR LOSSES OF, OR OWED TO THIRD
PARTIES, AND ANY AND ALL RELATED COSTS, CHARGES, AND EXPENSES (INCLUDING
REASONABLE ATTORNEYS' FEES, INCLUDING ALLOCATED COSTS OF INTERNAL COUNSEL),
WHICH ADMINISTRATIVE AGENT OR ANY LENDER MAY INCUR OR BE SUBJECT TO AS A
CONSEQUENCE, DIRECT OR INDIRECT, OF (A) THE ISSUANCE OF ANY LETTER OF
CREDIT, OR (B) THE FAILURE OF ADMINISTRATIVE AGENT TO HONOR A DRAFT UNDER
SUCH LETTER OF CREDIT AS A RESULT OF ANY ACT OR OMISSION, WHETHER RIGHTFUL
OR WRONGFUL, OF ANY PRESENT OR FUTURE GOVERNMENTAL AUTHORITY; PROVIDED
THAT, BORROWER SHALL HAVE NO LIABILITY TO INDEMNIFY ADMINISTRATIVE AGENT OR
ANY LENDER IN RESPECT OF ANY LIABILITY ARISING OUT OF THE GROSS NEGLIGENCE
OR WILFUL MISCONDUCT OF SUCH PARTY OR ANY REPRESENTATIVES OF SUCH PARTY.
THE PROVISIONS OF AND UNDERTAKINGS AND INDEMNIFICATIONS SET FORTH IN THIS
SECTION 3.9(d)
THIRD AMENDED AND
35 RESTATED CREDIT AGREEMENT
SHALL SURVIVE THE SATISFACTION AND PAYMENT OF THE OBLIGATION AND
TERMINATION OF THIS AGREEMENT.
(e) Although referenced in any Letter of Credit, terms of any
particular agreement or other obligation to the beneficiary are not in any
manner incorporated herein. The fees and other amounts payable with
respect to each Letter of Credit shall be as provided in this Agreement,
drafts under any Letter of Credit shall be deemed part of the Obligation,
and in the event of any conflict between the terms of this Agreement and
any Letter of Credit Agreement, the terms of this Agreement shall be
controlling.
SECTION 4 CHANGE IN CIRCUMSTANCES.
4.1 INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable Law or
any change in any applicable Law or any change in the interpretation or
administration thereof by any governmental authority, central bank, or
comparable agency charged with the interpretation or administration
thereof, 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, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office)
to any tax, duty, or other charge with respect to any Eurodollar
Portion, its Note, or its obligation to loan any Eurodollar Portion,
or change the basis of taxation of any amounts payable to such Lender
(or its Applicable Lending Office) under this Agreement or its Note in
respect of any Eurodollar Portions (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 Note 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 Portions or to reduce any sum
received or receivable by such Lender (or its Applicable Lending Office)
under this Agreement or its Note with respect to any Eurodollar Portions,
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
THIRD AMENDED AND
36 RESTATED CREDIT AGREEMENT
(with a copy to Administrative Agent), suspend the obligation of such
Lender to loan or continue Eurodollar Portions with respect to which such
compensation is requested, or to convert Base Portions into Eurodollar
Portions, 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.
(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, central bank, or comparable agency 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, central bank, or comparable agency, 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 Portion:
(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 Portions for such Interest Period;
then Administrative Agent shall give Borrower prompt notice thereof
specifying the relevant Eurodollar Portions and 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 Portions, continue
Eurodollar Portions, or to convert any Base Portions into Eurodollar
Portions, and Borrower shall, on the last day(s) of the then current
Interest Period(s) for the
THIRD AMENDED AND
37 RESTATED CREDIT AGREEMENT
outstanding Eurodollar Portions, either prepay such Eurodollar Portions
or convert such Eurodollar Portions into Base Portions 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 Portions hereunder, then such
Lender shall promptly notify Borrower thereof, and such Lender's obligation to
make or continue Eurodollar Portions and to convert other Base Portions into
Eurodollar Portions shall be suspended until such time as such Lender may again
make, maintain, and fund Eurodollar Portions (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 Portions or to continue, or to convert Base Portions into Eurodollar
Portions shall be suspended pursuant to SECTION 4.1 or 4.3 hereof, such Lender's
Eurodollar Portions shall be automatically converted into Base Portions on the
last day(s) of the then current Interest Period(s) for the Eurodollar Portions
(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 SECTION 4.1 or 4.3 hereof that gave rise to such
conversion no longer exist:
(a) to the extent that such Lender's Eurodollar Portions have been so
converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Eurodollar Portions shall be applied instead to
its Base Portions; and
(b) all Portions that would otherwise be made or continued by such
Lender as Eurodollar Portions shall be made or continued instead as Base
Portions of such Lender and any Portion that would otherwise be converted
into Eurodollar Portions shall be converted instead into (or shall remain
as) Base Portions.
If such Lender gives notice to Borrower (with a copy to Administrative Agent)
that the circumstances specified in SECTION 4.1 or 4.3 hereof that gave rise to
the conversion of such Lender's Eurodollar Portions 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 Portions made by other Lenders are
outstanding, such Lender's Base Portions shall be automatically converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Portions, to the extent necessary so that, after giving effect
thereto, all Portions held by the Lenders holding Eurodollar Portions 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 Portion
for any reason (including, without limitation, the acceleration of the Loan
pursuant to SECTION 12.2) on a date other than the last day of the
Interest Period for such Eurodollar Portion; or
THIRD AMENDED AND
38 RESTATED CREDIT AGREEMENT
(b) any failure by Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in SECTION 7
to be satisfied) to borrow, convert, continue, or prepay a Eurodollar
Portion 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, duties, levies, imposts, deductions, charges, or
withholdings, and all liabilities with respect thereto, 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 (all such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter referred to as
"TAXES"). If Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable 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 referred to in SECTION 14.8, 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
THIRD AMENDED AND
39 RESTATED CREDIT AGREEMENT
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
treaty, Law, or regulation 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 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 Commitment and the
payment in full of the Notes.
SECTION 5 REPRESENTATIONS AND WARRANTIES.
Borrower, Communications, and the Guarantors, jointly and severally,
represent and warrant, as to themselves and, as applicable, their Subsidiaries
as follows:
5.1 ORGANIZATION AND GOOD STANDING. Each of Borrower, the Guarantors
(other than any Company that is a Cellular Partnership), Communications, and
each of their respective Subsidiaries is a corporation duly organized, existing,
and in good standing under the Laws of its respective state of incorporation,
and each Cellular Partnership is a partnership duly formed and validly existing
under the Laws of its respective state of formation. Each of Borrower, the
Guarantors, Communications, and each of their respective Subsidiaries has the
power and authority to carry on
THIRD AMENDED AND
40 RESTATED CREDIT AGREEMENT
its business as now conducted and is qualified to do business in all other
states in which the nature of its business or the ownership of its properties
requires such qualification.
5.2 POWER AND AUTHORITY; VALIDITY OF AGREEMENT. Each of Borrower, the
Guarantors, Communications, and their respective Restricted Subsidiaries has the
power and authority under the Laws of its state of incorporation and under its
articles of incorporation and bylaws or its Partnership Agreement, as
applicable, to enter into and perform this Agreement and the other Loan Papers
to the extent that each is a party thereto; and all actions (corporate or
otherwise) necessary or appropriate for execution and performance of this
Agreement and the other Loan Papers by Borrower, the Guarantors, Communications,
and their respective Restricted Subsidiaries have been taken, and, upon their
execution, the same will constitute the valid and binding obligations of
Borrower, the Guarantors, Communications, and their respective Subsidiaries to
the extent that each is a party thereto, enforceable in accordance with their
terms.
5.3 NO VIOLATION OF LAWS OR AGREEMENTS. The making and performance of
this Agreement and the other Loan Papers by Borrower, the Guarantors,
Communications, and their respective Restricted Subsidiaries will not violate
any provisions of any Law, or the respective articles of incorporation and
bylaws, or the Partnership Agreements, as applicable, of Borrower, the
Guarantors, Communications, and their respective Subsidiaries or result in any
breach or violation of, or constitute a default under, any agreement or
instruments by which Borrower, any Guarantor, Communications, or their
respective Subsidiaries or their respective property may be bound.
5.4 MATERIAL CONTRACTS. SCHEDULE 5.4 hereto sets forth a list of all
contracts material to the respective business of Borrower, the Guarantors,
Communications, and their respective Restricted Subsidiaries (including with
respect to the Systems), and there exists no material default under any of such
contracts.
5.5 COMPLIANCE. Each of Borrower, the Guarantors, Communications, and
their respective Restricted Subsidiaries is in compliance in all material
respects with all applicable Laws (including, without limitation, the
Communications Act, the Environmental Control Statutes, and those administered
by Local Authorities and the FCC), material to the conduct of its business and
operations. Each of Borrower, the Guarantors, Communications, and their
respective Subsidiaries possesses all the franchises, permits, licenses,
certificates of compliance, and approvals and grants of authority necessary,
including, without limitation, any license or permit issued by the FCC, all of
which are described on SCHEDULE 5.5 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 court, governmental
agency, or regulatory 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, Communications, and their respective Subsidiaries.
5.6 LITIGATION. There are no actions, suits, proceedings, or claims which
are pending or, to the best of Borrower's knowledge or information, threatened
against Borrower, the Guarantors,
THIRD AMENDED AND
41 RESTATED CREDIT AGREEMENT
Communications, or their respective Subsidiaries which, if adversely
resolved, would have a Material Adverse Effect.
5.7 TITLE TO ASSETS. Each of Borrower, the Guarantors, Communications,
and their respective Restricted Subsidiaries has good and marketable title to
all of its properties and assets free and clear of any liens and encumbrances,
except the security interests granted to Lenders hereunder and liens and
security interests permitted pursuant to SECTIONS 9.4 and 10.4 hereof; and all
such assets are in good order and repair and are fully covered by the insurance
required under SECTION 8.7 hereof.
5.8 CAPITAL STOCK/PARTNERSHIP INTERESTS. The number of shares and classes
of the capital stock of Borrower, Communications, and each of their respective
Subsidiaries (other than any Company that is a Cellular Partnership), and the
ownership thereof, are accurately set forth on SCHEDULE 5.8 attached hereto; all
such shares are validly issued, fully paid, and non-assessable, and the issuance
and sale thereof are in compliance with all applicable federal and state
securities and other applicable Laws; and the shareholders' ownership thereof is
free and clear of any liens or encumbrances or other contractual restrictions,
except the pledge of the common shares of Borrower and its Subsidiaries to
Administrative Agent for the benefit of Lenders hereunder. 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
5.8 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
Administrative Agent, on behalf of Lenders, as set forth on SCHEDULE 5.8
attached hereto.
5.9 ACCURACY OF INFORMATION; FULL DISCLOSURE.
(a) All information furnished to Lenders concerning the financial
condition of the Companies and Communications and its Restricted
Subsidiaries, including the annual audited financial statements for the
period ending December 31, 1996, and the consolidated unaudited financial
statements for the three-quarter period ending September 30, 1997, copies
of which have been furnished to Lenders, has been prepared in accordance
with GAAP, and fairly presents the financial condition of the Companies and
Communications and its Restricted Subsidiaries as of the dates and for the
periods covered and discloses all liabilities of the Companies and
Communications and its Restricted Subsidiaries, and there have been no
material adverse changes in the financial conditions or businesses of the
Companies or Communications and its Restricted Subsidiaries from the date
of such statements to the date hereof; and
(b) All financial statements and other documents furnished by
Communications and Borrower to Lenders in connection with the Loan Papers
do not and will not contain any untrue statement of material fact or omit
to state a material fact necessary in order to make the statements
contained therein not misleading. Communications and Borrower have
disclosed to Lenders in writing any and all facts which materially and
adversely affect the business, properties, operations, or condition,
financial or otherwise, of Communications and Borrower or of Communications
and Borrower and their Subsidiaries, considered as a whole,
THIRD AMENDED AND
42 RESTATED CREDIT AGREEMENT
or Communications' and Borrower's ability to perform their obligations
under this Agreement and the Note.
5.10 TAXES AND ASSESSMENTS. (a) Each of Borrower, the Guarantors,
Communications, and their respective Subsidiaries has filed all required tax
returns or has filed for extensions of time for the filing thereof, and has paid
all applicable federal, state, and local taxes, other than taxes not yet due or
which may be paid hereafter without penalty; PROVIDED THAT, no such taxes shall
be required to be paid if they are being contested in good faith by appropriate
proceedings and are covered by appropriate reserves maintained in accordance
with GAAP; and (b) Borrower, the Guarantors, and Communications have no
knowledge of any deficiency or additional assessment in connection therewith not
provided for in the financial statements required hereunder.
5.11 INDEBTEDNESS. Each of Borrower, the Guarantors, Communications, and
their respective Restricted Subsidiaries has no presently outstanding
Indebtedness or obligations, including contingent obligations and obligations
under leases of property from others, except the Indebtedness and obligations
described in SCHEDULE 5.11 hereto and in Borrower's, the Guarantors', and
Communications' financial statements which have been furnished to Lenders from
time to time pursuant to SECTION 7.1, 8.2, and 8.3 hereof.
5.12 MANAGEMENT AGREEMENTS. Neither Borrower, the Guarantors,
Communications, nor their respective Restricted Subsidiaries is a party to any
management or consulting agreement for the provision of services to it, except
as described in SCHEDULE 5.12 hereto.
5.13 INVESTMENTS. Neither Borrower, the Guarantors, Communications, nor
their respective Restricted Subsidiaries has any investments in or loans to any
other individuals or business entities, other than the investments described in
SECTION 5.8, and such loans and investments as are permitted pursuant to
SECTIONS 9.3 and 9.8 hereof.
5.14 ERISA. Each of Borrower, the Guarantors, Communications, their
respective Subsidiaries, and each ERISA Affiliate is in compliance in all
material respects with all applicable provisions of ERISA and the regulations
promulgated thereunder; and,
(a) Neither Borrower, the Guarantors, Communications, their
respective Subsidiaries, nor any ERISA Affiliate maintains or contributes
to or has maintained or contributed to any multiemployer plan (as defined
in SECTION 4001 of ERISA) under which Borrower, Communications, their
respective Subsidiaries, or any ERISA Affiliate could have any withdrawal
liability;
(b) Neither Borrower, the Guarantors, Communications, their
respective Subsidiaries, nor any ERISA Affiliate sponsors or maintains any
Plan under which there is an Accumulated Funding Deficiency, whether or not
waived;
(c) The aggregate liability for accrued benefits and other ancillary
benefits under each Plan that is or will be sponsored or maintained by
Borrower, the Guarantors, Communications, their respective Subsidiaries, or
any ERISA Affiliate (determined on the basis of the actuarial assumptions
prescribed for valuing benefits under terminating single-
THIRD AMENDED AND
43 RESTATED CREDIT AGREEMENT
employer defined benefit plans under Title IV of ERISA) does not exceed the
aggregate fair market value of the assets under each such defined benefit
pension Plan;
(d) The aggregate liability of Borrower, the Guarantors,
Communications, their respective Subsidiaries, and each ERISA Affiliate
arising out of or relating to a failure of any Plan to comply with the
provisions of ERISA or the Code is not an amount which is reasonably likely
to have a Material Adverse Effect; and
(e) There does not exist any unfunded liability (determined on the
basis of actuarial assumptions utilized by the actuary for the Plan in
preparing the most recent Annual Report) of Borrower, the Guarantors,
Communications, their respective Subsidiaries, or any ERISA Affiliate under
any Plan providing post-retirement life or health benefits.
5.15 PERMITTED ACQUISITIONS.
(a) VALIDITY. With respect to any Permitted Acquisitions, each of
Borrower, the Guarantors, Communications, and their respective Restricted
Subsidiaries 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 Guarantors,
Communications, or their respective Restricted Subsidiaries (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 Guarantors,
Communications, and their respective Restricted Subsidiaries, 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
formation of Borrower, the Guarantors, Communications, and their respective
Restricted Subsidiaries, and will not violate any provisions of the
articles of incorporation and bylaws or Partnership Agreements of Borrower,
the Guarantors, Communications, or their respective Subsidiaries, or
constitute a default under any agreement by which Borrower, the Guarantors,
Communications, or their respective Subsidiaries or their respective
property may be bound.
5.16 FEES AND COMMISSIONS. Neither Borrower, the Guarantors,
Communications, nor their respective Subsidiaries owe any brokers' or finders'
fees or commissions of any kind, and Borrower, the Guarantors, Communications,
and their respective Subsidiaries know of no claim for any brokers' or finders'
fees or commissions in connection with Borrower obtaining the Commitment or the
Loan from Lenders, except those provided herein.
5.17 NO EXTENSION OF CREDIT FOR SECURITIES. Neither Borrower, the
Guarantors, Communications, nor their respective Subsidiaries is now, nor at any
time has been, engaged
THIRD AMENDED AND
44 RESTATED CREDIT AGREEMENT
principally, or as one of its important activities, in the business of
extending, or arranging for the extension of, credit for the purpose of
purchasing or carrying any margin stock or margin securities; nor will the
proceeds of the Loan be used by Borrower, directly or indirectly, for such
purposes. "MARGIN STOCK" (as defined in Regulation U) constitutes less than
25% of the assets of any of Borrower, the Guarantors, Communications, or
their respective Subsidiaries, which are subject to any limitation on the
sale, pledge, or other restrictions hereunder.
5.18 PERFECTION OF SECURITY INTERESTS. The financing statements against
Borrower, the Guarantors, their respective Restricted Subsidiaries, the Cellular
Partnership Obligors, and the respective partners of the Cellular Partnership
Obligors, covering all the security interests created by the Collateral Security
Documents (the "EXISTING FINANCING STATEMENTS"), have been filed in all places
as, in the opinion of counsel for Borrower, are necessary to perfect said
security interests, and all the outstanding shares of stock of Borrower, the
Guarantors (other than the Cellular Partnership Obligors), and their respective
Restricted Subsidiaries (other than the Cellular Partnerships) have been pledged
to Administrative Agent, for the benefit of Lenders, pursuant to the Collateral
Security Documents. No further action, including any filing or recording of any
document, is necessary in order to establish, perfect, and maintain Lenders'
first priority security interests in the assets and the stock created by the
Security Agreements and the Pledge Agreement, respectively, except for the
periodic filing of continuation statements with respect to financing statements
filed under the Uniform Commercial Code of the applicable jurisdiction.
5.19 HAZARDOUS WASTES, SUBSTANCES AND PETROLEUM PRODUCTS.
(a) Each of Borrower, the Guarantors, Communications, and their
respective Subsidiaries (i) has received all permits and filed all
notifications necessary to carry on its respective business(es), and
(ii) is in compliance in all respects with all Environmental Control
Statutes.
(b) Neither Borrower, the Guarantors, Communications, nor any of
their respective Subsidiaries has given any written or oral notice, nor has
failed to give required notice, to the EPA or any state or local agency
with regard to any actual or imminently threatened Release of Hazardous
Substances on properties owned, leased, or operated by Borrower, the
Guarantors, Communications, or any of their respective Subsidiaries, or
used in connection with the conduct of its business and operations.
(c) Neither Borrower, the Guarantors, Communications, nor any of
their respective Subsidiaries has received notice that it is potentially
responsible for the costs of clean-up or remediation of any actual or
imminently threatened Release of Hazardous Substances pursuant to any
Environmental Control Statute.
5.20 SOLVENCY. At the time of each Borrowing hereunder and on the date of
each Permitted Acquisition, Communications is, and each Company is (and after
giving effect to the transactions contemplated by the Loan Papers, any Permitted
Acquisition, and any incurrence of additional Indebtedness, will be), Solvent.
5.21 WIRELINE SPINOFF. Borrower's business plan contemplates consummation
of the Wireline Spinoff upon receipt of favorable revenue rulings from the
Internal Revenue Service and
THIRD AMENDED AND
45 RESTATED CREDIT AGREEMENT
upon determination by Communications that favorable market conditions exist
to support an initial public offering of securities of Communications (the
"PROPOSED IPO"). Borrower and Communications have made the request for a
ruling from, and has timely filed all related documents with, the Internal
Revenue Service relative to tax issues relating to the Wireless Spinoff.
SECTION 6 SECURITY; GUARANTIES.
6.1 COLLATERAL. To secure the full and complete payment and performance
of the Obligation, the Companies (other than GRCGP) and each Cellular
Partnership Obligor hereby, jointly and severally, grant and convey to, and
create in favor, of Collateral Agent, for the ratable benefit of 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 Managing Agent or Lender hereby
assumes or is made the transferee of any obligations of any Company or any
Cellular Partnership Obligor regarding any of the Collateral):
(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 Cellular Partnership Obligor and any and all present and future tax
refunds of any kind whatsoever to which any Company or any Cellular
Partnership Obligor 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 Cellular Partnership Obligor, including,
without limitation, all capital stock of, or partnership interests in, the
Subsidiaries of any Company or any Cellular Partnership Obligor, together
with all distributions thereon and any securities issued in substitution or
replacement thereof, but expressly excluding the stock of Xxxxxx Wireline
Company and its Subsidiaries, SO LONG AS such entities remain Unrestricted
Subsidiaries of the Companies.
(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 Cellular Partnership Obligor in any partnership or joint venture,
including, without limitation, any Cellular Partnership.
(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 Cellular Partnership Obligor, 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").
THIRD AMENDED AND
46 RESTATED CREDIT AGREEMENT
(f) Substantially all of the real estate now owned or hereafter
acquired by any Company or any Cellular Partnership Obligor, TOGETHER WITH
all improvements thereon and fixtures attached thereto.
(g) The balance of every deposit account of any Company or any
Cellular Partnership Obligor and any other claim of any Company or any
Cellular Partnership Obligor 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, or other motor vehicles or rolling stock now owned
or hereafter acquired by any Company or any Cellular Partnership Obligor
(collectively, the "VEHICLES").
(i) All present and future rights, awards, and judgments to which any
Company or any Cellular Partnership Obligor 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 Cellular Partnership Obligor 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 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 Cellular Partnership Obligor 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 licenses and permits issued by the FCC or any PUC to any
Company or any Cellular Partnership Obligor, to the extent permitted by
applicable Law.
(m) All proceeds of any sale or other disposition of any license or
permit issued by the FCC or any PUC issued to any Company or any Cellular
Partnership Obligor, 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 license or permit is otherwise prohibited.
(n) All present and future increases, profits, combinations,
reclassifications, improvements, and products of, and 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.
THIRD AMENDED AND
47 RESTATED CREDIT AGREEMENT
(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 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 COMMUNICATIONS PLEDGE. To secure the full and complete payment of the
Obligation, Communications hereby grants, pledges, and conveys to, and creates
in favor of Administrative Agent (for the ratable benefit of Lenders) liens and
security interest in, to, and on all the issued and outstanding Shares of
Borrower, TOGETHER WITH all distributions thereon, all cash and noncash proceeds
thereof, and any securities issued in substitution or replacement thereof.
6.3 GUARANTIES. As an inducement to Agents, Managing Agents, Co-Agents,
and Lenders to enter into this Agreement, Borrower shall cause each Company
(other than GRCGP), Communications, and each Cellular Partnership Obligor, to
execute and deliver to Administrative Agent a Guaranty providing for the
guarantee of the payment and performance of the Obligation.
6.4 FUTURE LIENS. Promptly, upon (a) the acquisition of any assets (real,
personal, tangible, or intangible) by any Company or any Cellular Partnership
Obligor, (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 (the stock and assets of such new Restricted Subsidiary and the
assets described in CLAUSES (a) and (b) being herein referred to as the
"ADDITIONAL ASSETS"), or (c) upon the designation, formation, or acquisition of
any new Restricted Subsidiary, Borrower shall (or shall cause such other Company
or Cellular Partnership Obligor to) execute and deliver to Administrative Agent
all further instruments and documents (including, without limitation,
certificates and instruments representing shares of stock or evidencing
indebtedness and any realty appraisals as Agents may require with respect to any
such Additional Assets), and shall take all such further action that may be
necessary or desirable, or that Administrative Agent may reasonably request, to
grant, perfect, and protect liens in favor of Administrative Agent for the
benefit of Lenders in such Additional Assets, as security for the 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.
6.5 RELEASE OF COLLATERAL.
(a) UPON SALE OR DISPOSITION OF COLLATERAL OR DESIGNATION OF AN
UNRESTRICTED SUBSIDIARY. Upon any sale, transfer, or disposition of
Collateral which is expressly permitted pursuant to the Loan Papers (or is
otherwise authorized by Required Lenders) or upon the
THIRD AMENDED AND
48 RESTATED CREDIT AGREEMENT
designation of an Unrestricted Subsidiary in accordance with SECTION
8.28, 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, Administrative 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 Administrative Agent for the benefit of Lenders pursuant
hereto in such Collateral; PROVIDED THAT, (x) no such release of Lien
shall be granted if any Default or Event of Default has occurred and is
continuing, including, without limitation, the failure to make certain
mandatory prepayments in accordance with SECTION 2.9 in conjunction with
the sale or transfer of such Collateral; (y) Administrative Agent shall
not be required to execute any such document on terms which, in
Administrative Agent's opinion, would expose Administrative Agent to
liability or create any obligation or entail any consequence, OTHER THAN
the release of such Liens without recourse or warranty; and (z) such
release shall not in any manner discharge, affect, or impair the
Obligation, or liens upon (or obligations of any Company or any Cellular
Partnership Obligor in respect of) all interests retained by the
Companies or the Cellular Partnership Obligors, 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 and security
interests (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 intercompany Indebtedness to any Company 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 indirectly through a
Subsidiary, advance funds to any such Cellular Partnership. In regard to
repayment of such intercompany Indebtedness, Administrative Agent is hereby
authorized by Lenders to execute and deliver such releases, upon ten (10)
Business Days prior written request by Borrower supported by evidence that
such intercompany Indebtedness has been repaid and accompanied by
appropriate release instruments, which must be in form satisfactory to
Administrative Agent.
(c) WIRELINE SPINOFF. With respect to liens and security interests
in the shares of stock issued by Xxxxxx Wireline Company, on and as of the
Effective Date of the Wireline Spinoff, all liens and security interest on
such pledged securities held by Administrative Agent FOR the benefit of
Lenders hereunder shall be released upon written certification from
Borrower and Communications certifying and confirming that the Wireline
Spinoff has been consummated, together with such documentation evidencing
the Wireline Spinoff as Agents may request.
(d) LIENS ON ASSETS OF XXXXXX TELEPHONE COMPANY, INC. AND XXXXXX
FIBER COMPANY, INC. on the Effective Date, Administrative Agent shall
release all liens and security interests previously created pursuant to the
Second Amended and Restated Agreement (or prior loan documents amended and
restated by such agreement) in and to the assets or stock of Xxxxxx
Telephone Company, Inc. and Xxxxxx Fiber Company, Inc., which companies
have been designated as Unrestricted Subsidiaries pursuant to this
Agreement.
THIRD AMENDED AND
49 RESTATED CREDIT AGREEMENT
6.6 NEGATIVE PLEDGE. Notwithstanding the provisions of SECTION 6.1
hereof, until such time as Agents or Required Lenders otherwise require, the
Companies and the Cellular Partnership Obligors 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
Agents or Required Lenders agree to delay the perfection or attachment of any
Lien granted pursuant to SECTION 6.1 hereof, pursuant to the foregoing sentence
or for any other reason, the Companies and the Cellular Partnership Obligors
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 Agents,
Borrower shall (or shall cause each Company or Cellular Partnership Obligor to)
execute and deliver to Administrative Agent all instruments and documents
(including, without limitation, certificates, instruments, and documents
representing shares of stock or evidencing Indebtedness) and shall take all
further action that may be necessary or desirable, or that Administrative Agent
may reasonably request, to grant, perfect, and protect liens in favor of
Administrative Agent, for the benefit of Lenders, in such assets, as security
for the 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.
6.7 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 Cellular Partnership Obligors by Agents, Managing Agents,
Co-Agents, or Lenders, or control, affirmative or negative or direct or
indirect, by Agents, Managing Agents, Co-Agents, or Lenders over the management
or any other aspect of the operation of the Companies or the Cellular
Partnership Obligors, which ownership or control remains exclusively and at all
times in the Companies or the Cellular Partnership Obligors, and (ii) do not and
will not constitute the transfer, assignment, or disposition in any manner,
voluntary or involuntary or directly or indirectly, of any license or
certificate at any time issued by the FCC or any PUC to the Companies or the
Cellular Partnership Obligors, or the transfer of control of the Companies or
the Cellular Partnership Obligors within the meaning of SECTION 310(d) of the
Communications Act of 1934, as amended; and (b) Administrative Agent shall not,
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 a license or any change of control of the
Companies or the Cellular Partnership Obligors, if such assignment or change of
control would require, under then existing law (inc.xxxxx 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 FIRST ADVANCE. This Agreement shall not be effective until, and
Lenders shall have no obligation to make the first Advance of the Loan (or to
issue any Letter of Credit) unless, the following conditions have been satisfied
and Administrative Agent has received each of the following documents (OTHER
THAN each item, if any, listed on SCHEDULE 7.1, which items are hereby permitted
to be delivered after the Effective Date but not later than the respective date
for delivery of each such item specified on SCHEDULE 7.1):
THIRD AMENDED AND
50 RESTATED CREDIT AGREEMENT
(a) PROMISSORY NOTE. A Note in favor of each Lender in the form of
EXHIBIT A hereto duly executed by Borrower.
(b) AUTHORIZATION DOCUMENTS. A certified copy of the articles of
incorporation, bylaws, and resolutions of the boards of directors of
Borrower, the Guarantors (other than any Company or Guarantor that is a
partnership), and Communications, and a certified copy of each Partnership
Agreement and evidence of authorization by the applicable partners of each
Company or Guarantor that is a partnership, in each case authorizing the
execution and full performance of the Loan Papers, and all other documents
and actions required hereunder, to the extent each is a party thereto, and
an incumbency certificate setting forth the officers and partners of each
of Borrower, each Guarantor, and Communications, and providing specimen
signatures of those persons authorized to execute this Agreement and
related documents.
(c) SECURITY AGREEMENTS. A Security Agreement substantially in the
form of EXHIBIT D executed, jointly and severally, by Borrower and each
Guarantor; each such Security Agreement shall be accompanied by (i) all
promissory notes executed by Cellular Partnership Obligors in favor of any
Company executing such Security Agreement (each, a "CELLULAR PARTNERSHIP
PROMISSORY NOTE"), endorsed by the appropriate Company to Administrative
Agent, on behalf of Lenders, (ii) all stock certificates issued to any
Company or Guarantor executing a Security Agreement, together with stock
powers executed by such Company in blank; and (iii) such financing
statements or amendments to financing statements, as the case may be,
landlord waivers, mortgagee consents, and evidence of any other recordation
required by applicable Law or by Agents to perfect or continue the
perfected status of the liens and security interests created by such
Security Agreement.
(d) PLEDGE AGREEMENT. A Pledge Agreement substantially in the form
of EXHIBIT E executed and delivered by Communications; such Pledge
Agreement shall be accompanied by the stock certificates, stock powers
executed by Communications in blank, financing statements, or amendments to
financing statements, as the case may be, and evidence of any other
recordation required by applicable Law or by Agents to perfect or continue
the perfected status of the liens and security interests created by such
Pledge Agreement, together with copies of any shareholder agreements
related thereto in order to perfect or continue the perfected status of the
liens and security interests created by the Pledge Agreement.
(e) GUARANTY. A Guaranty substantially in the form of EXHIBIT E
executed by Communications, each Company, other than Borrower, and each
Cellular Partnership Obligor.
(f) OPINIONS OF COUNSEL. Opinion letters from counsel for Borrower
(including FCC and such local counsel opinions as Agents and their counsel
may reasonably require) in the form of EXHIBITS H-1, H-2, [and H-3].
(g) INSURANCE. Certificates of insurance and evidence of loss payee
endorsements in favor of Administrative Agent, for the benefit of Lenders,
with respect to all fire, casualty, liability, and other insurance covering
the Systems.
THIRD AMENDED AND
51 RESTATED CREDIT AGREEMENT
(h) AN AFFILIATE SUBORDINATION AGREEMENT. An Affiliate Subordination
Agreement substantially in the form of EXHIBIT J executed by any Affiliate
of Borrower or any Guarantor to which Borrower or any Guarantor is indebted
(the "AFFILIATE OBLIGEE"); each Affiliate Subordination Agreement shall be
accompanied by copies of all documents creating or evidencing such
Indebtedness and appropriate certified board resolutions and legal opinions
as required by Agents.
(i) FINANCIAL INFORMATION. (i) Pro forma schedule of consolidated
assets and liabilities of (A) the Companies and (B) Communications and its
Restricted Subsidiaries, as of the date hereof, setting forth all
indebtedness of Borrower, Communications, and such Subsidiaries, certified
as accurate by the chief financial officer of Borrower and Communications;
(ii) cash flow projections for (A) the Companies and (B) Communications and
its Restricted Subsidiaries, each on a consolidated and consolidating
basis, for the three (3) year period immediately following the date hereof,
satisfactory to Agents and certified as being true and correct and based on
reasonable assumptions by the chief financial officer of Borrower and
Communications (such cash flow projections having taken into account the
transactions contemplated by this Agreement and having identified the
sources of cash that Borrower and Communications and their respective
Subsidiaries or Restricted Subsidiaries (as the case may be) intend to use
to meet their cash needs during such three year period); (iii) a Budget for
(A) the Companies and (B) Communications and its Restricted Subsidiaries,
certified by the chief financial officer of Borrower and Communications,
respectively, as having been prepared based on assumptions which, in light
of the historical performances of Borrower and Communications, as
applicable, are realistic and achievable; and (iv) a Compliance Certificate
prepared as of the Closing Date on a pro forma basis, after giving effect
to the closing of the Loan Papers and the related transactions.
(j) ADVANCE REQUEST. A completed Advance Request Form (or Letter of
Request Notices, as the case may be) required under SECTION 2.7(a) or
SECTION 3 hereof, and any other documents or information reasonably
required by Lenders in connection therewith.
(k) FEES. Payment to (i) Syndication Agent and Administrative Agent
of all fees payable on the Closing Date as described in the letter
agreements dated March 25, 1998, by and among Borrower, Communications, and
Syndication Agent or Administrative Agent, as the case may be, and
(ii) each Lender of all the fees specified in the letter dated March 24,
1998, addressed to such Lender from Syndications Agent on behalf of
Borrower, all such fees shall be in the amounts calculated in accordance
with such letter agreements.
(l) SEARCHES. Uniform Commercial Code, tax, judgment, PBGC, and EPA
searches against Communications, any Company, and any Cellular Partnership
Obligor, in such offices and jurisdictions as Agents may reasonably
request.
(m) COMMUNICATIONS BOND DEBT. Evidence that the indebtedness
Incurred under this Agreement and the related Loan Documents (i) have been
incurred or entered into in compliance with the requirements of the
Communications Bond Debt and the Certificate of Designation for Preferred
Stock; (ii) constitute the "BANK FACILITY AGREEMENT" as such term is
defined under the Communications Bond Debt and Certificate of Designation
For Preferred Stock; (iii) constitute "SENIOR INDEBTEDNESS" under the terms
of the Certificate of Designation
THIRD AMENDED AND
52 RESTATED CREDIT AGREEMENT
for the Preferred Stock; (iv) evidence that Operations and its
Subsidiaries have been designated as "UNRESTRICTED SUBSIDIARIES" in
compliance with the requirements of the Communications Bond Debt and the
Certificate of Designation for the Preferred Stock; and (v) evidence that
the subordinated loan from Communications to Operations dated as of
January 23, 1998, in the princpal amount of $63,000,000 constitutes a
permitted "RESTRICTED PAYMENT" in compliance with the requirements of the
Communications Bond Debt and the Certificate of Designation for the
Preferred Stock.
(n) TAX SHARING AGREEMENT. Confirmation that there have been no
amendments or modifications to the Tax Sharing Agreement among Borrower,
Communications, and the Guarantors from the form executed in connection
with the Second Amended and Restated Credit Agreement.
(o) APPOINTMENT OF AGENT. Evidence satisfactory to Agents that
Borrower has appointed an agent for service of process in Texas pursuant
to the requirements of SECTION 14.13.
(p) OTHER DOCUMENTS. All management agreements, Partnership
Agreements, FCC licenses, and Cellular Partnership Notes must be in form
and substance reasonably acceptable to Administrative Agent and its
counsel.
(q) ADDITIONAL DOCUMENTS. Such additional documents as Lenders
reasonably may request.
7.2 PERMITTED ACQUISITIONS. On or prior to the consummation of any
Acquisition (whether or not the purchase price for such Acquisition is funded by
Advances), 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 condition on SCHEDULE 7.2. 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 Agents. To the extent
any Advance is being requested in connection with the consummation of the
Acquisition, the conditions set forth in SECTIONS 7.3 and 7.4 hereof must be
satisfied prior to the making of any such Advance.
7.3 SUBSEQUENT ADVANCES. The obligation of Lenders to make additional
Advances under the Commitment or to issue Letters of Credit shall be subject to
Lenders' receipt of a completed Advance Request Form or Letter of Credit Request
Form (together with a completed Letter of Credit Agreement).
7.4 ADDITIONAL CONDITION TO LENDERS' OBLIGATIONS. Lenders shall not be
obligated to make any Advance hereunder unless (a) no Event of Default or
Default shall have occurred and be continuing on the date of such Advance or be
caused by such Advance; (b) all of the representations and warranties of any
Company or 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
THIRD AMENDED AND
53 RESTATED CREDIT AGREEMENT
changed by transactions contemplated or permitted by the Loan Papers) and, if
applicable, supplemental Schedules have been delivered with respect thereto,
and when necessary, approved by Lenders; (c) all fees required pursuant to
their Agreement and the Fee Letters have been paid as and when due; (d) there
shall have been no material adverse change in Borrower's, any Guarantor's, or
Communications' and its Restricted Subsidiaries' financial condition or
business since the Effective Date; (e) the funding of such Advance and
issuance of any Letter of Credit, as the case may be, is permitted by Law; (f)
in the event all or any part of the proceeds of any Advance will be used to
fund dividends or distributions, Agents shall have received all such
certifications, financial information, and projections as Agents may
reasonably; and (g) all matters relating to such Advance must be satisfactory
to Required Lenders and their respective counsel in their reasonable
determination, and upon the reasonable request of Administrative Agent
evidence substantiating any of the matters in the Loan Papers which are
necessary to enable Borrower to qualify for such Advance. Each Advance
Request and Letter of Credit Agreement 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, Lender may fund
any Advance, and Administrative Agent may issue any Letter of Credit, 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 AFFIRMATIVE COVENANTS.
Each of Borrower, Communications, and each Guarantor covenants and agrees
that so long as the Commitment or any part of the Obligation remains
outstanding, Borrower, Communications, and each Guarantor will, and will cause
their respective Restricted Subsidiaries (and with respect to SECTION 8.13, will
cause each ERISA Affiliate) to:
8.1 EXISTENCE and GOOD STANDING. Preserve and maintain its existence as a
corporation or partnership, as applicable, and its good standing in all states
in which it conducts business and the validity of all its franchises, licenses,
permits, certificates of compliance, or grants of authority required in the
conduct of its business.
8.2 QUARTERLY FINANCIAL STATEMENTS. Furnish to Lenders in respect of each
of Borrower, Communications, and their respective Restricted Subsidiaries,
within sixty (60) days of the end of each quarterly period (or sooner if
available), unaudited quarterly Consolidated financial statements, in form and
substance as required by Lenders, including (a) a Consolidated balance sheet,
(b) a Consolidated statement of income, (c) a statement of cash flows,
(d) non-consolidated information with respect to Borrower and Communications, to
the extent used in calculating the financial covenants set forth in
SECTIONS 8.14 through 8.20 and SECTIONS 9.1, 9.3, 9.6, 9.7 and 10.1 hereof, and
(e) a compliance certificate in the form of EXHIBIT C-1 attached hereto showing
the calculation of the covenants set forth in SECTIONS 8.14 through 8.20 and
SECTIONS 9.1, 9.3, 9.6, 9.7, and 10.1 hereof, prepared in accordance with GAAP
consistently applied, together with a certificate executed by the chief
executive and chief financial officers of Borrower and Communications,
respectively, stating that the financial statements fairly present the financial
condition of the Companies and Communications and its Restricted Subsidiaries as
of the date and for the periods covered and that
THIRD AMENDED AND
54 RESTATED CREDIT AGREEMENT
as of the date of such certificate there exists no violation of any provision
of this Agreement or the happening of any Event of Default or Default.
8.3 ANNUAL FINANCIAL STATEMENTS. Furnish to Lenders in respect of
Borrower, Communications, and their respective Restricted Subsidiaries within
120 days after the close of each fiscal year (or sooner if available),
commencing with fiscal year 1997, audited consolidated and consolidating annual
financial statements, including the financial statements and information
required under SECTION 8.2 hereof and information with respect to capitalized
marketing costs, which consolidated financial statements shall be prepared in
accordance with GAAP and shall be certified without qualification (except with
respect to changes in GAAP as to which Communications' or Borrower's respective
independent certified public accountants have concurred) by an independent
certified public accounting firm satisfactory to Lenders; and, at the time of
completion of the annual audit, cause to be furnished to Lenders, a certificate
signed by such accountants to the effect that to the best of their knowledge,
there exist no violations of any provision of this Agreement and no Event of
Default or Default has occurred hereunder.
8.4 OTHER INFORMATION. Deliver to Lenders (a) promptly upon transmission
thereof, copies of all such financial statements, proxy statements, notices, and
reports as it shall send to its stockholders, partners, any trustee, or any
beneficiary, as applicable, (b) copies of all auditors' annual management
letters delivered to Borrower or Communications, (c) 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 Security Documents
becomes outdated or incorrect in any material respect, such revised or updated
Schedule(s) or Annex(es) as may be necessary or appropriate to update or correct
such information or disclosures; PROVIDED THAT, in the case of SCHEDULES 5.11,
9.8, and 10.4, the information thereon shall not be deemed accepted for purposes
of this Agreement or become part of the Loan Papers unless approved by Required
Lenders; PROVIDED FURTHER, that no deletions may be made to any Annex(es)
describing Collateral in any of the Collateral Security Documents unless
approved by Required Lenders, and (d) with respect to the post-closing
requirements set forth on SCHEDULE 7.1, deliver, or cause to be delivered, to
Administrative Agent all agreements, documents, instruments, or other items
listed on SCHEDULE 7.1 on or prior to the date specified for delivery thereof on
SCHEDULE 7.1.
8.5 BUDGET AND MANAGEMENT REPORTS. (a) On or prior to March 31 of each
fiscal year of Borrower, deliver to Lenders financial Budgets for the Companies
and Communications and its Restricted Subsidiaries for such fiscal year,
accompanied by a certificate executed by a Responsible Officer of Borrower and
Communications, as the case may be, certifying that each Budget was prepared by
Borrower or Communications, as the case may be, based on assumptions which, in
light of the historical performance of the Companies or Communications, as the
case may be, and their prospects for the future, are realistic and achievable;
and (b) deliver to Lenders within 60 days after the end of each quarter, a
management report showing, for each System, results of operations and subscriber
counts, discussing the financial results and comparing actual results to the
Budget for such period, and outlining princpal factors affecting performance in
each market, and detailing the outstanding princpal amount of intercompany
loans and advances from Borrower to each of the Cellular Partnership Obligors,
all in form and substance satisfactory to Lenders.
8.6 BOOKS AND RECORDS.
THIRD AMENDED AND
55 RESTATED CREDIT AGREEMENT
(a) Keep and maintain satisfactory and adequate books and records of
accounts in accordance with GAAP and make or cause the same to be made
available to Administrative Agent or Lenders or their agents or nominees at
any reasonable time upon reasonable notice for inspection and to make
extracts thereof and permit Administrative Agent or any Lender to discuss
the contents of same with senior officers of Borrower and Communications
and also with outside auditors and accountants of Borrower and
Communications.
(b) In connection with any loans, advances, dividends, or
distributions by Borrower to Communications, Borrower shall deliver to
Administrative Agent and maintain in its corporate records such resolutions
and evidence of authority as may be necessary or required in order to
demonstrate the amount, date, and purpose thereof and that such loan,
advance, dividend, or distribution is made in accordance with the terms of
this Agreement.
8.7 INSURANCE. Keep and maintain all of its property and assets in good
order and repair and fully covered by insurance with reputable and financially
sound insurance companies against such hazards and in such amounts as is
customary in the industry, under policies requiring the insurer to furnish
reasonable notice to Lenders and opportunity to cure any non-payment of premiums
prior to the termination of coverage; and, as required above, furnish
Administrative Agent with certificates of such insurance and cause
Administrative Agent (for the ratable benefit of Lenders) to be named as an
additional insured and the lender loss payee thereunder, as its interest may
appear under a standard mortgagee clause.
8.8 LITIGATION; EVENT OF DEFAULT. Notify Administrative Agent in writing
immediately of (a) the institution of any litigation, the commencement of any
administrative proceedings, the happening of any event, or the assertion or
threat of any claim which could have a Material Adverse Effect, (b) the
occurrence of any Event of Default or Default hereunder, or (c) default under
any material contract.
8.9 TAXES. Pay and discharge all taxes, assessments, or other
governmental charges or levies imposed on it or any of its property or assets
prior to the date on which any penalty for non-payment or late payment is
incurred, unless the same are (a) currently being contested in good faith by
appropriate proceedings, diligently prosecuted, and (b) are covered by
appropriate reserves maintained in cash or cash equivalents in accordance with
GAAP. Notify Lenders immediately if the Internal Revenue Service or any other
taxing authority commences or notifies Borrower or Communications of its
intention to commence an audit or investigation with respect to any taxes of any
kind due or alleged to be due from Borrower or Communications.
8.10 EXPENSES and COSTS. Pay or reimburse Administrative Agent and
Syndication Agent for all reasonable out-of-pocket costs and expenses
(including, but not limited to, reasonable attorneys' fees and disbursements)
that Administrative Agent or Syndication Agent may pay or incur in connection
with the preparation and review of this Agreement and all waivers, consents,
amendments, or administration in connection therewith, and all other
documentation related thereto, and the making of the Loan hereunder, and pay or
reimburse each Lender for all reasonable out-of-pocket costs and expenses which
such Lender may pay or incur in connection with the collection, administration,
or enforcement of the same, including, without limitation, any fees and
disbursements incurred in defense of or to retain amounts of principal,
interest, or fees paid. All obligations
THIRD AMENDED AND
56 RESTATED CREDIT AGREEMENT
provided for in this SECTION 8.10 shall survive any termination of this
Agreement or the Commitment and the repayment of the Loan.
8.11 NEW SUBSIDIARY DESIGNATION. In the absence of a Default or an Event
of Default, Borrower may designate any Restricted Subsidiary of Communications
(excluding the Companies) as a new Subsidiary (each a "NEW GUARANTOR"). At the
time of such designation of a New Guarantor, (i) Borrower shall provide
Administrative Agent with not less than ten (10) Business Days prior written
notice, and (ii) the New Guarantor shall deliver to Administrative Agent a
joinder to this Agreement and the other Loan Papers, shall execute all necessary
Collateral Security Documents, and shall deliver all certificates, opinions of
counsel, and such other documents, including, without limitation, searches,
appraisals, and other information as reasonably required by Required Lenders.
Thereafter, commencing with the first full fiscal quarter in which such entity
has met the requirements of CLAUSES (i) and (ii) above, such New Guarantor's
Operating Cash Flow shall be included in the calculation of the Companies'
Operating Cash Flow and such New Guarantor's Indebtedness shall be included in
the calculation of the Companies' Total Debt; PROVIDED, HOWEVER, that in the
event Borrower desires to designate an entity as a New Guarantor, and such
entity is not engaged in the domestic cellular telecommunications business, such
designation shall require the prior written approval of Required Lenders.
8.12 COMPLIANCE; NOTIFICATION.
(a) Comply in all respects with all Laws and regulations applicable
to its business, including, without limitation, Environmental Control
Statutes, the Communications Act, and all Laws and regulations of the FCC
and Local Authorities, and the provisions and requirements of all
franchises, permits, certificates of compliance, and approvals issued by
regulatory authorities, and other like grants of authority; and notify
Lenders immediately in detail of (i) any actual or alleged failure to
comply with or to perform, or any breach, violation, or default under, any
such Laws or regulations or under the terms of any of such franchises,
licenses, grants of authority, or (ii) the occurrence or existence of any
facts or circumstances which with the passage of time or the giving of
notice, or both, could create such a breach, violation, or default or could
cause the termination of any of such franchises or grants of authority.
(b) With respect to Environmental Control Statutes, immediately
notify Administrative Agent when, in connection with the conduct of
Borrower's, Communications', or any Guarantor's business or operations, any
Person (including, without limitation, the EPA or any state or local
agency) provides oral or written notification to Borrower, any Guarantor,
or Communications (or Borrower, Communications, or any Guarantor otherwise
becomes aware) of a condition with regard to an actual or imminently
threatened Release of Hazardous Substances; and notify Lenders in detail
immediately upon the receipt by Borrower, any Guarantor, or Communications
of an assertion of liability under the Environmental Control Statutes, of
any actual or alleged failure to comply with or to perform, or any breach,
violation, or default under any such statutes or regulations, or of the
occurrence or existence of any facts, events, or circumstances which, with
the passage of time or the giving of notice, or both, could create such a
breach, violation, or default.
THIRD AMENDED AND
57 RESTATED CREDIT AGREEMENT
8.13 ERISA. (a) Comply in all material respects with the provisions of
ERISA to the extent applicable to any Plan maintained for the employees of any
Company, Communications, or any ERISA Affiliate; (b) do or cause to be done all
such acts and things that are required to maintain the qualified status of each
Plan and tax exempt status of each trust forming part of such Plan; (c) not
incur any material Accumulated Funding Deficiency or any material liability to
the PBGC (as established by ERISA); (d) permit any event to occur (i) as
described in SECTION 4042 of ERISA or (ii) which may result in the imposition of
a lien on its properties or assets; and (e) notify Lenders in writing promptly
after it has come to the attention of senior management of Borrower or
Communications of the assertion or threat of any "REPORTABLE EVENT" or other
event described in SECTION 4042 of ERISA (relating to the soundness of a Plan)
or the PBGC's ability to assert a material liability against it or impose a lien
on the properties or assets of Borrower, any Guarantor, Communications, or any
ERISA Affiliate; and (f) refrain from engaging in any prohibited transactions or
actions causing possible liability under SECTION 5.02 of ERISA.
8.14 SENIOR LEVERAGE RATIO. Maintain at all times during the periods set
forth in the left-hand column below, a ratio of the Total Debt of the Companies
to the Operating Cash Flow of the Companies, measured as of the last day of the
most recently ended fiscal quarter, of not greater than the amount set forth in
the right-hand column:
PERIOD MAXIMUM RATIO
------ -------------
Date hereof - 6/30/98 7.50: 1.0
7/1/98 - 12/31/98 6.50: 1.0
1/1/99 - 6/30/99 6.25: 1.0
7/1/99 - 12/31/99 6.00: 1.0
1/1/00 - 6/30/00 5.50: 1.0
7/1/00 - 12/31/00 5.00: 1.0
1/1/01 - thereafter 4.50: 1.0
8.15 PRO FORMA DEBT SERVICE COVERAGE. Maintain at all times a ratio of
(a) the Operating Cash Flow of the Companies measured for the applicable Rolling
Period as of the last day of the most recently ended fiscal quarter to (b) the
Pro Forma Debt Service of the Companies for the twelve-month period commencing
on the first day of the current quarter, of not less than 1.15 to 1.0.
8.16 INTEREST COVERAGE. Maintain at all times a ratio of (a) the Operating
Cash Flow of the Companies measured for the applicable Rolling Period as of the
last day of the most recently ended fiscal quarter to (b) the Companies'
Interest Expense during the Rolling Period (as determined in accordance with
GAAP), of not less than 2.00 to 1.0.
8.17 FIXED CHARGE COVERAGE. Maintain at all times on and after January 1,
1999, a Fixed Charge Coverage Ratio of not less than 1.00 to 1.0 measured for
the applicable Rolling Period as of the last day of the most recently ended
fiscal quarter.
8.18 TOTAL LEVERAGE RATIO. Maintain at all times during the periods set
forth in the left-hand column, a Total Leverage Ratio measured as of the last
day of the most recently ended fiscal quarter of not more than the ratio set
forth in the right-hand column:
THIRD AMENDED AND
58 RESTATED CREDIT AGREEMENT
PERIOD MAXIMUM RATIO
------ -------------
Effective Date - 6/30/98 9.50: 1.0
7/1/98 - 12/31/98 9.00: 1.0
1/1/99 - 6/30/99 8.50: 1.0
7/1/99 - 12/31/99 8.00: 1.0
1/1/00 - 6/30/00 7.00: 1.0
7/1/00 - 12/31/00 6.00: 1.0
1/1/01 - thereafter 5.00: 1.0
8.19 COMMUNICATIONS INTEREST COVERAGE. Maintain at all times a ratio
measured for the applicable Rolling Period as of the last day of the most
recently ended fiscal quarter of (a) Communications Operating Cash Flow to
(b) Communications Interest Expense, of not less than 1.25 to 1.0.
8.20 CAPITAL EXPENDITURES. Borrower shall not permit Capital Expenditures
of the Companies made during the period from January 1, 1998 through December
31, 1998, to exceed 110% of the amount budgeted for capital expenditures in the
Budget for 1998.
8.21 INTEREST RATE PROTECTION. Within 60 days from the date hereof, enter
into one or more fixed rate Interest Rate Agreements (which may include the
Existing Interest Rate Agreement), in form acceptable to Administrative Agent,
with one or more Lenders or institutions acceptable to Administrative Agent,
with respect to at least fifty percent (50%) of the Communications Total Debt
outstanding on the effective Date, with a duration of at least two years;
PROVIDED, HOWEVER, that (a) the protected rate shall be no greater than 2.5%
above the all-in rate as of the Effective Date hereof; (b) if the institution(s)
providing the interest rate protection is a Lender or Affiliate thereof, such
Lender shall be granted a security interest in the Collateral to the extent of
such Lender's credit exposure under such Interest Rate Agreements, which
security interest is PARI PASSU with that of Administrative Agent, on behalf of
Lenders; (c) each such Lender providing interest rate protection shall calculate
its credit exposure in a reasonable and customary manner; and (d) all
documentation for such interest rate protection shall conform to ISDA standards
and must be acceptable to Administrative Agent with respect to intercreditor
issues.
8.22 MANAGEMENT CHANGES. Notify Lenders in writing within thirty (30) days
after any change of Borrower's or Communications' senior management personnel.
8.23 SUCCESSOR ADMINISTRATIVE AGENT. In the event of the appointment of
any successor Administrative Agent pursuant to SECTION 13.1(c) hereof, to
execute and deliver any documents reasonably requested by Lenders to effectuate
and confirm the transfer to such successor Administrative Agent of all rights,
powers, duties, obligations, and property vested in its predecessor
Administrative Agent hereunder.
8.24 TRANSACTIONS AMONG AFFILIATES. Cause all transactions between and
among Affiliates to be on an arms-length basis and on such terms and conditions
as are customary in the applicable industry between and among unrelated
entities.
THIRD AMENDED AND
59 RESTATED CREDIT AGREEMENT
8.25 DEPOSIT ACCOUNT. Maintain at least one demand deposit account with
Administrative Agent.
8.26 OTHER INFORMATION. Provide Lenders with any other documents and
information, financial or otherwise, reasonably requested by Lenders from time
to time.
8.27 COBANK PARTICIPATION. At all times during which CoBank, ACB
("COBANK") is a Lender hereunder, 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.
8.28 DESIGNATION OF UNRESTRICTED SUBSIDIARY. So long as no Event of
Default or Default exists or arises as a result thereof, Borrower may from time
to time change the designation of any Subsidiary from a "RESTRICTED SUBSIDIARY"
to an "UNRESTRICTED SUBSIDIARY" or VICE VERSA; PROVIDED THAT, such designation
shall not be effective unless (a) any Subsidiary designated as an "UNRESTRICTED
SUBSIDIARY" satisfies all the requirements of an "UNRESTRICTED SUBSIDIARY" as
set forth in the definition of "UNRESTRICTED SUBSIDIARY" in SECTION 1.1 hereof;
(b) any Subsidiary designated as a "RESTRICTED SUBSIDIARY" is principally
engaged in the domestic cellular business; (c) Borrower shall deliver to
Administrative Agent notice of such designation which notice (i) shall be
delivered no later than 10 Business Days prior to such designation, (ii) shall
include a Compliance Certificate demonstrating pro forma compliance with the
financial covenants hereunder after giving effect to such designation, and
(iii) shall confirm that no Default or Event of Default exists or arises as a
result of such designation; (d) Borrower shall amend SCHEDULE 5.8 to reflect the
change in designation and shall deliver such amended Schedule to Administrative
Agent; and (e) Each Subsidiary designated as a Restricted Subsidiary shall
execute and deliver the Collateral Security Documents required by SECTION 8.30
hereof.
8.29 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.
8.30 ADDITIONAL GUARANTIES AND COLLATERAL SECURITY AGREEMENTS. The
Companies shall cause each existing Subsidiary of Borrower (other than GRCGP)
and each Subsidiary of any Company hereafter formed, acquired, or designated as
a "RESTRICTED SUBSIDIARY" pursuant to SECTION 8.28 to execute and deliver to
Administrative Agent (a) A GUARANTY, IN SUBSTANTIALLY THE FORM AND UPON THE
TERMS OF EXHIBIT F, unconditionally guaranteeing full payment and performance of
the Obligation, subject to such limitations as are set forth in such Guaranty,
and (b) a Pledge Agreement, substantially in the form and upon the terms of
EXHIBIT E.
THIRD AMENDED AND
60 RESTATED CREDIT AGREEMENT
8.31 WIRELINE SPINOFF. So long as no Default or Event of Default then
exists or arises, Borrower shall cause the Wireline Spinoff to be consummated as
soon as (i) Borrower and Communications have received a favorable revenue ruling
from the Internal Revenue Service with respect to such Wireline Spinoff and
(ii) Borrower and Communications determine that favorable market conditions
exist for an initial public offering of the securities of Communications.
SECTION 9 NEGATIVE COVENANTS.
So long as the Commitment has not been terminated or the obligation has not
been paid in full, each of Borrower and each Guarantor (except Communications)
covenant and agree that without Required Lenders' prior written consent it will
not, and will not permit any Restricted Subsidiary to:
9.1 INDEBTEDNESS. Borrow any monies or create any Indebtedness, except
(a) the Loan; (b) intercompany loans and advances from Borrower to any
Restricted Company or to any New Guarantor (subject to the requirements of
SECTION 8.11(c) (other than any Cellular Partnership or GRCGP); (c) borrowings
by any cellular partnership obligor from Borrower, SO LONG AS (i) such
indebtedness is evidenced by Cellular Partnership Promissory Notes whose form
and terms including amortization schedules are acceptable to Agents; (ii) such
Cellular Partnership Promissory Notes and all partnership interests of the
Companies in such Cellular Partnership Obligor are pledged or assigned by
Borrower or the appropriate Company to Administrative Agent, for the benefit of
Lenders, pursuant to appropriate Collateral Security Documents, and (iii) such
Cellular Partnership Obligor has executed a Guaranty and has granted liens and
security interests in all of its assets in favor of Administrative Agent (for
the benefit of Lenders) by execution and delivery of all Collateral Security
Documents required by Administrative Agent; and (iv) such Cellular Partnership
Obligor has delivered all such searches, opinions, financing statements, and
other documents reasonably requested by Agents; (d) indebtedness incurred in
connection with Interest Rate Agreements entered into pursuant to SECTION 8.21
hereof; (e) Indebtedness of Borrower to Communications; PROVIDED THAT, such
Indebtedness (i) is unsecured, (ii) unguaranteed, (iii) is expressly
subordinated to the Obligation pursuant to a Subordination Agreement, and
(iv) which Subordinated Debt and related Subordination Agreement are on terms
acceptable to Borrower and Agents; (f) trade indebtedness incurred in the
ordinary course of business for value received; (g) Indebtedness arising under
Capital Leases not to exceed $10,000,000 in the aggregate on any date of
determination; (h) Indebtedness owed by Borrower to Xxxxxx Wireline Company
existing on the Effective Date in the principal amount of $2,510,533 (which
indebtedness, once repaid, may not be reborrowed); and (i) indebtedness existing
on the Effective Date and listed on SCHEDULE 5.11.
9.2 GUARANTIES. Guarantee or assume or agree to become liable in any way,
either directly or indirectly, for any additional Indebtedness or liability of
others, except (a) to endorse checks or drafts in the ordinary course of
business and (b) the obligations of the Guarantors under the Guaranties.
9.3 LOANS. Make any loans or advances to others, OTHER THAN (a) loans and
advances from Borrower to the Guarantors (other than Communications or GRCGP)
which, in the case of the Cellular Partnership Obligors, shall be to the extent
permitted by SECTION 9.1(c), (b) loans or advances by Borrower to Communications
or any Restricted Subsidiary of Communications to the extent
THIRD AMENDED AND
61 RESTATED CREDIT AGREEMENT
permitted in accordance with SECTION 9.6 hereof, and (c) the loan from
Borrower to New GRTI in an aggregate principal amount not to exceed
$6,110,554.75 at any time outstanding.
9.4 LIENS AND ENCUMBRANCES. Create, permit, or suffer the creation of any
liens, security interests, or any other encumbrances on any of its property,
real or personal, except in favor of Administrative Agent (for the ratable
benefit of Lenders) as security for the Obligation, other than (a) liens for
taxes, assessments, or other governmental charges, federal, state, or local,
which are then being currently contested in good faith by appropriate
proceedings and are covered by appropriate reserves maintained in cash or cash
equivalents and in accordance with GAAP; (b) pledges or deposits to secure
obligations under workmen's compensation, unemployment insurance, or social
security laws or similar legislation; (c) deposits to secure performance or
payment bonds, bids, tenders, contracts, leases, franchises, or public and
statutory obligations required in the ordinary course of business; (d) deposits
to secure surety, appeal, or custom bonds required in the ordinary course of
business; and (e) statutory liens on the Participation Certificates held by
Borrower pursuant to SECTION 8.27 to secure Borrower's obligations to CoBank
hereunder, SO LONG AS the proceeds of such Participation Certificates (as and
when secured) shall be shared by CoBank among Lenders.
9.5 ADDITIONAL NEGATIVE PLEDGE. Agree or covenant with or promise any
Person, other than Lenders, that it will not pledge its assets or properties or
otherwise grant any liens, security interests, or encumbrances on its property
on terms similar to those set forth in SECTION 9.4 hereof.
9.6 RESTRICTED PAYMENTS. Make any Restricted Payments; PROVIDED, HOWEVER,
that, SO LONG AS there exists no Event of Default or Default under this
Agreement and no Event of Default or Default will be caused thereby after giving
pro forma effect thereto:
(a) To the extent Borrower receives cash dividends, Net Cash Proceeds
from any Equity Issuance, or the proceeds of any Subordinated Debt from
Communications, then Borrower may pay distributions or make loans or
advances to Communications in an aggregate amount equal to the sum of all
such cash dividends, Net Cash Proceeds from Equity Issuances, or proceeds
of intercompany Subordinated Debt, SO LONG AS the aggregate amount of
dividends, distributions, loans, or advances made pursuant to CLAUSES (a)
and (b) does not exceed $25,000,000 in any calendar year or $50,000,000
from the Effective Date to any date of determination;
(b) Borrower may make distributions, including, without limitation,
dividends, advances, or loans (herein collectively referred to as
"DISTRIBUTIONS") to Communications or any Restricted Subsidiary of
Communications if, on the date of such Distribution, the Total Leverage
Ratio is less than 6.50 to 1.0 after giving effect to any such
Distribution, and the aggregate amount of such Distributions does not
exceed $7,500,000 in any calendar year or $25,000,000 from the Effective
Date to any date of determination; PROVIDED THAT, on or prior to the date
of any such Distribution, Borrower shall provide to Administrative Agent a
certificate and related calculations demonstrating and confirming PRO FORMA
compliance with the limitations of this SECTION 9.6(b);
(c) Commencing after the first four interest payments on the
Communications Bond Debt have been made, so long as no Triggering Event has
occurred or is created thereby (as determined on a pro forma basis)
Borrower may pay dividends or make loans or
THIRD AMENDED AND
62 RESTATED CREDIT AGREEMENT
advances to Communications in an amount sufficient (when aggregated with
the amounts of all other loans, advances, or dividends for such purposes
from all other Subsidiaries of Communications) (i) to pay
regularly-scheduled interest payments on the Communications Bond Debt as
in accordance with the Communications Bond Debt in effect on the
Effective Date or (ii) after January 15, 2003, to pay regularly-
scheduled cash distributions on the Preferred Stock or cash interest
payments on the Exchange Debentures, if issued; PROVIDED, HOWEVER, in the
event that any Triggering Event has occurred and is continuing, Borrower
may, commencing after the first four interest payments on the
Communications Bond Debt have been made or after January 15, 2003, with
respect to the Preferred Stock, declare and pay cash dividends to
Communications, or make loans or advances to Communications in an amount
which (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 past due payment
of cash interest or cash dividends on the Communications Bond Debt or the
Preferred Stock or, if issued, the Exchange Debentures by reason of such
Triggering Event, and (B) the next regularly scheduled payment of cash
interest or cash dividend, as the case may be, on the Communications Bond
Debt or the Preferred Stock (as the case may be) if, but only if, (1)
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; (2) such Triggering Event is
not an Event of Default set forth in SECTION 12.1(a), (j), or (k) hereof;
and (3) Lenders have not demanded payment in full of all obligations due
and owing by Borrower under this Agreement and the Loan Papers;
(d) Any Company which is a Cellular Partnership and any Cellular
Partnership Obligor may make distributions in accordance with their
respective Partnership Agreements in an amount sufficient to pay the cash
tax liabilities of their respective partners for federal and state income
taxes directly attributable to the profit of each such Cellular Partnership
attributable to the applicable partner; and
(e) Borrower may make Restricted Payments of the stock or assets of
Xxxxxx Wireline Company and its subsidiaries, to the extent required to
consummate the Wireline Spinoff.
9.7 TRANSFER OF ASSETS; LIQUIDATION.
(a) Sell, lease, transfer, or otherwise dispose of all or any portion
of its assets, real or personal, including pursuant to a sale and
leaseback, lease and leaseback, or similar arrangement, EXCEPT (i) such
transactions in the normal and ordinary course of business for value
received; PROVIDED THAT, the aggregate value of assets transferred in all
such transactions does not exceed $15,000,000 in any calendar year;
(ii) sales, assignments, exchanges, leases, or other dispositions of
property between and among the Companies (other than GRCGP); (iii) the
transfer, sale, or disposition of non-wireless assets to Operations, so
long as the transfer, sale, or disposition of assets for fair market value
and for which at least 85% of the consideration is received in cash or cash
equivalents; and (iv) the sale or transfer of the stock of Xxxxxx Wireline
Company and its Subsidiaries to the extent required to consummate the
Wireline Spinoff; and
THIRD AMENDED AND
63 RESTATED CREDIT AGREEMENT
(b) discontinue, liquidate, or change in any material respect any
part of its operations or business(es).
9.8 ACQUISITIONS AND INVESTMENTS. Purchase or otherwise acquire
(including, without limitation, by way of share exchange) any part or amount of
the capital stock or assets of, or make any investments (other than Permitted
Investments and Permitted Acquisitions, subject to the conditions and
limitations set forth in the definitions thereof) in, any other firm or
corporation; or enter into any new business activities or ventures not directly
related to its present business; or merge or consolidate with or into any other
firm or corporation, EXCEPT mergers with any of its Restricted Subsidiaries
(other than GRCGP), SO LONG AS in any such merger with Borrower, Borrower is the
surviving entity; PROVIDED THAT, notwithstanding the foregoing limitations on
investments, Borrower may invest in cellular, local exchange, or PCS assets
("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 any such
Special Investment, Borrower provides to Administrative Agent a certificate and
related calculations demonstrating and confirming pro forma 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 Investments or the financing
thereof):
(a) If the Senior Leverage Ratio on such Investment Date is less than
7.00 to 1.0, (i) the aggregate amount of Special Investments made during
such calendar year shall not exceed $10,000,000 and (ii) the aggregate
amount of Special Investments made from the Effective Date to and including
the Investment Date shall not exceed the LESSER of (x) $50,000,000 or
(y) the SUM of $40,000,000 plus 25% of the Net Cash Proceeds received by
Borrower from any Equity Issuance; or
(b) If the Senior Leverage Ratio on such Investment Date is greater
than or equal to 7.00 to 1.0, (i) the aggregate amount of Special
Investments made during such calendar year shall not exceed $7,500,000 and
(ii) the aggregate amount of Special Investments made from the Effective
Date to and including the Investment Date shall not exceed the LESSER of
(A) $50,000,000 or (B) the SUM of $25,000,000 plus 15% of the Net Cash
Proceeds received by Borrower from any Equity Issuance.
9.9 PAYMENTS TO AFFILIATES. Pay any salaries or other compensation,
consulting fees, or management fees or other like payments to any Affiliate of
Borrower other than in the ordinary course of business for services rendered
without any profit or margin with respect thereto.
9.10 USE OF PROCEEDS. Use any of the proceeds of the Loan, directly or
indirectly, to purchase or carry margin securities within the meaning of
REGULATION U of the Board of Governors of the Federal Reserve System; or engage
as its principal business in the extension of credit for purchasing or carrying
such securities.
9.11 AMENDMENTS TO DOCUMENTS. (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; (b) amend any existing credit arrangement
THIRD AMENDED AND
64 RESTATED CREDIT AGREEMENT
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 Agents)
than the provisions of the Loan Papers; or (c) amend any credit arrangements
with new GRTI (including any collateral arrangements with respect thereto) in
effect on the Closing Date which would have the effect of releasing,
diminishing, or impairing Borrower's lien on new GRTI'S partnership interest
in GRCGP and on any partnership distributions with respect thereto.
SECTION 10 NEGATIVE COVENANTS OF COMMUNICATIONS.
So long as the Commitment has not been terminated or the Obligation has not
been paid in full, Communications covenants and agrees (and agrees to cause each
other Restricted Subsidiary of Communications, to the extent any covenant is
applicable to such entity) to perform, observe, and comply with each of the
following, UNLESS Communications receives prior written consent to the contrary
from Required Lenders:
10.1 INDEBTEDNESS. Neither Communications nor any Restricted Subsidiary of
Communications (other than the Companies or Guarantors) shall borrow any monies
or create any Indebtedness, except (a) unsecured indebtedness (i) with respect
to which Communications has provided a compliance certificate to Administrative
Agent evidencing pro forma compliance with all terms and conditions of this
Agreement after giving effect to such incurrence of Indebtedness, (ii) which
Indebtedness is on terms no more restrictive than the Loan Papers and otherwise
reasonably acceptable to Agents, and (iii) with respect to which Borrower
complies with the provisions of SECTION 2.5(b)(iii) hereof, and (b) the
Communications Bond Debt; PROVIDED THAT, Restricted Subsidiaries of
Communications (other than the Companies or Guarantors) may incur Indebtedness,
SO LONG AS (x) after giving pro forma effect to such incurrence of Indebtedness,
no Default or Event of Default exists or arises, including, without limitation,
compliance with the Total Leverage Ratio requirement of SECTION 8.18; and
(y) such Indebtedness is incurred and remains on a non-recourse basis to
Borrower and all Guarantors on terms and conditions satisfactory to Agents.
10.2 GUARANTIES. Communications shall not guarantee or assume or agree to
become liable in any way, either directly or indirectly, for any additional
indebtedness or liability of others, including, without limitation, Unrestricted
Subsidiaries, except to endorse checks or drafts in the ordinary course of
business and except for Communications' guarantee of the Loan provided herein.
10.3 LOANS. Communications shall not make any loans or advances to others,
other than (a) loans to Borrower, PROVIDED such loans are unsecured, are
expressly subordinated to the Loan pursuant to a Subordination Agreement, and
are subject to terms and conditions acceptable to Borrower and Agents; (b) loans
and advances to its Restricted Subsidiaries, other than the Companies or
Guarantors; and (c) a $63,000,000 subordinated loan to Operations evidenced by
that certain subordinated promissory note dated January 23, 1998 (as the same
may be renewed, extended, or modified with the consent of Agents, but in no
event shall such loan be increased without the consent of Required Lenders).
10.4 LIENS AND ENCUMBRANCES. Neither Communications nor any Restricted
Subsidiary of Communications (other than the Companies and Guarantors) shall
create, permit, or suffer the creation of any liens, security interests, or any
other encumbrances on any of its property, real or
THIRD AMENDED AND
65 RESTATED CREDIT AGREEMENT
personal, EXCEPT in favor of Lenders as security for the Loan, EXCEPT (a) the
liens listed on SCHEDULE 10.4 attached hereto; (b) liens for capital leases,
taxes, assessments, or other governmental charges, federal, state or local,
which are then being currently contested in good faith by appropriate
proceedings and are covered by appropriate reserves maintained in cash or
cash equivalents and in accordance with GAAP; (c) liens of mechanics,
carriers, warehousemen, or materialmen required in the ordinary course of
business and not yet due and payable; (d) pledges or deposits to secure
obligations under workmen's compensation, unemployment insurance, social
security laws, or similar legislation; (e) deposits to secure performance or
payment bonds, bids, tenders, contracts, leases, franchises, or public and
statutory obligations required in the ordinary course of business; (f)
deposits to secure surety, appeal, or custom bonds required in the ordinary
course of business; (g) liens on the assets (but not the stock) of DCC PCS,
Inc. to secure DCC PCS, Inc.'s Indebtedness; (h) the pledge of the Shares of
Borrower in favor of Lenders; (i) liens on the fund and investments held
pursuant to the Escrow Agreement in favor of the trustee for the holders of
the Communications Bond Debt; (j) statutory liens on the Participation
Certificates in CoBank held by Borrower to secure Borrower's obligations to
CoBank hereunder, the proceeds of such Participation Certificates (as and
when received) which CoBank hereby agrees shall be shared among Lenders
pursuant to SECTION 14.2 hereof; and (k) liens securing indebtedness and
obligations under this Agreement and the related loan documents.
10.5 ADDITIONAL NEGATIVE PLEDGE. Communications shall not agree or
covenant with or promise any Person, other than Lenders, the trustee for the
holders of the Communications Bond Debt, the trustee for the holders of the
Exchange Debentures, or the holders of the Preferred Stock, that it will not
pledge its assets or properties or otherwise grant any liens, security
interests, or encumbrances on its property on terms similar to those set forth
in SECTION 10.4 hereof.
10.6 COMMUNICATIONS BOND DEBT, PREFERRED STOCK, AND EXCHANGE DEBENTURES.
Communications (a) shall not amend or modify any provision of, or waive any
condition under, any document or instrument evidencing or relating to the
Communications Bond Debt, the Preferred Stock, or the Exchange Debentures,
including, without limitation, the Indenture pursuant to which the
Communications Bond Debt was issued, the Certificate of Designation for the
Preferred Stock, and the Exchange Debenture Indenture; (b) make any optional
redemptions, prepayments, or other payments on the Communications Bond Debt,
Preferred Stock, or any Exchange Debentures, other than (i) regularly scheduled
interest payment on the Communications Bond Debt, or (ii) after January 15,
2003, regularly-scheduled dividends on the Preferred Stock; (c) use dividends
received from Borrower for any purpose, other than to make regularly scheduled
interest payments on the Communications Bond Debt, or after January 15, 2003, to
pay regularly scheduled dividends on the Preferred Stock; (d) use the proceeds
of the Communications Bond Debt for any purpose other than (i) to make a
contribution to the equity of Borrower and (ii) to fund the accounts and
purchase the investments under the Escrow Agreement; and (e) use the cash and
investments held under the Escrow Agreement for any purpose other than to make
contributions to the equity of Borrower, to make interest payments on the
Communications Bond Debt as and when due and, if applicable, to fund the Special
Redemption or Special Purchase Offer and pay expenses relating to the
Communications Bond Debt.
10.7 AMENDMENTS TO DOCUMENTS. Communications shall not amend or permit any
amendments to Communications' Amended Articles of Incorporation as in effect on
the date of this Agreement.
THIRD AMENDED AND
66 RESTATED CREDIT AGREEMENT
10.8 DESIGNATION OF UNRESTRICTED COMPANIES. So long as no Default or Event
of Default exists or arises as a result thereof, Communications may from time to
time change the designation of Subsidiary of Communications from a Restricted
Subsidiary of Communications to an Unrestricted Subsidiary of Communications, or
VICE VERSA; PROVIDED THAT, (a) Communications shall provide Administrative Agent
written notification of such designation not less than 10 Business Days prior to
the effective date of such designation, together with a pro forma Compliance
Certificate demonstrating compliance with the financial covenants after giving
effect to such designation, (b) such designated Unrestricted Subsidiary shall
satisfy all the requirements of an Unrestricted Subsidiary, as set forth in the
definition of such term in SECTION 1.1, and (c) Communications shall deliver to
Administrative Agent a written certification executed by Borrower and
Communications, certifying that no Default or Event of Default exists prior to
or after giving effect to such designation.
10.9 MANAGEMENT EXPENSES. To the extent Communications charges any
Subsidiary for management expenses, such management expenses must be fair and
reasonable and must be allocated among the Subsidiaries on a consistently-
applied basis.
10.10 AFFILIATE TRANSACTIONS. Communications shall cause all
transactions between any Affiliates of Communications to be on an arms-length
basis and on such terms and conditions as are customary in the applicable
industry between and among unrelated entities and shall not pay any salaries or
other compensation, consulting fees, management fees, or other like payments to
Affiliates of Communications in any fiscal year, other than in the ordinary
course of business for services rendered without any profit or margin with
respect thereto.
SECTION 11 ADDITIONAL COLLATERAL AND RIGHT OF SET OFF.
11.1 ADDITIONAL COLLATERAL. As additional Collateral for the payment of
any and all of Borrower's indebtedness and obligations to Lenders, whether
matured or unmatured, now existing, hereafter incurred or created hereunder, or
otherwise, Borrower, Communications, and each Guarantor hereby grant to
Administrative Agent, for the benefit of Lenders, a security interest in and
lien upon all funds, balances, or other property of any kind of Borrower, or in
which Borrower has an interest, limited to the interest of Borrower therein,
whether now or hereafter in the possession, custody, or control of any Lender.
11.2 RIGHT OF SETOFF. Each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by Law, to apply any and all
deposits (general or special, time or demand, or provisional or final) at any
time held and other indebtedness at any time owing by such Lender to or for the
credit or the account of Borrower, Communications, or any Subsidiary of Borrower
or Communications against any and all of the obligations of Borrower or
Communications or any Subsidiary of Borrower or Communications, now or hereafter
existing under the Loan Papers held by such Lender, irrespective of whether such
Lender shall have made any demand under this Agreement and although such
obligations may be unmatured. Each Lender agrees promptly to notify Borrower
after any such setoff and application made by such Lender; PROVIDED, HOWEVER,
that the failure to give such notice shall not affect the validity of such
setoff and application. The rights of each Lender under this SECTION 9 are in
addition to other rights and remedies (including, without limitation, other
rights of setoff) which such Lender may have.
THIRD AMENDED AND
67 RESTATED CREDIT AGREEMENT
SECTION 12 DEFAULT.
12.1 EVENTS OF DEFAULT. Each of the following events shall be an Event of
Default hereunder:
(a) 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;
(b) Any representation or warranty made herein or in connection
herewith or in any statement, certificate, or other document furnished
hereunder is false or misleading in any material respect when made;
(c) Borrower, Communications, any Guarantor, or any Restricted
Subsidiary of Borrower or Communications shall default in the payment or
performance of any obligation or indebtedness to another, either singly or
in the aggregate, in excess of $3,000,000, whether now or hereafter
incurred;
(d) There shall be a default in or failure to observe at any date of
determination the covenants set forth in SECTIONS 8.14 through 8.20 hereof,
and SECTION 9 or 10 hereof;
(e) There shall exist any default in the performance of any other
agreement or covenant contained herein (other than as provided in
CLAUSES (a), (b) or (e) above) or in any document executed or delivered in
connection herewith, including, without limitation, any Collateral Security
Document, and such default shall continue uncured for twenty (20) days;
(f) There shall exist a "DEFAULT" under (a) the Revolving Credit
Agreement dated of even date herewith, among Operations, NationsBank of
Texas, N.A., as Administrative Agent, and the lenders party thereto (as the
same may be amended, modified, restated, or supplemented from time to time;
or (b) the 364-day Revolving Facility dated of even date herewith among
Operations, NationsBank of TEXAS, N.A., as Administrative Agent, and the
lenders party thereto.
(g) Xxxxxxx Xxxxxx or the Xxxxxxx X. Xxxxxx Irrevocable Family Trust
shall cease to maintain at least 50.1% of the voting control (directly or
indirectly) of Communications or, on and after any public offering of the
stock of Communications, would cease to be the beneficial owner of 35% or
more of the Voting Stock of Communications; if Communications shall cease
to own (directly or indirectly) one hundred percent (100%) of the issued
and outstanding Shares of Borrower and its Subsidiaries; if Borrower shall
cease to own one hundred percent (100%) of the issued and outstanding
Shares of its Subsidiaries (other than the Cellular Partnerships); or if
Cellular shall cease to own at least the percentage interest in the
Cellular Partnerships that it owns on the Effective Date (as reflected on
SCHEDULE 5.8 as delivered on the Effective Date).
(h) Lenders cease to hold 100% of the issued and outstanding Shares
of common stock of Borrower and its Subsidiaries as Collateral;
THIRD AMENDED AND
68 RESTATED CREDIT AGREEMENT
(i) Xxxxxxx Xxxxxx shall cease to hold a senior management position
with Communications or Borrower and such event shall continue uncured for
60 days;
(j) Custody or control of any substantial part of the property of
Borrower, any of its Subsidiaries, or any Guarantor shall be assumed by any
governmental agency or any court of competent jurisdiction at the instance
of any governmental agency; if any material license or franchise shall be
suspended, revoked, not renewed prior to its stated expiration, or
otherwise terminated; or if Borrower or any of its Subsidiaries, or
Guarantor is required by any franchising authority or by court order or
administrative order to halt construction or operations under any license
or franchise and such action shall continue uncorrected for thirty (30)
days after the applicable entity has received notice thereof; or if any
governmental regulatory authority or judicial body 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 of its
Subsidiaries, or any Guarantor;
(k) Borrower, Communications, any Guarantor, or any Subsidiary of
Borrower becomes insolvent or bankrupt, or generally fails to pay its debts
as such debts become due; is adjudicated insolvent or bankrupt; admits in
writing its inability to pay its debts; or shall suffer a custodian,
receiver, or trustee for it or substantially all of its property to be
appointed and if appointed without its consent, not be discharged within
thirty (30) days; makes an assignment for the benefit of creditors; or
suffers proceedings under any law related to bankruptcy, insolvency,
liquidation, or the reorganization, readjustment, or release of debtors to
be instituted against it and if contested by it not dismissed or stayed
within thirty (30) days; if proceedings under any law related to
bankruptcy, insolvency, liquidation, or the reorganization, readjustment or
release of debtors is instituted or commenced by Borrower, Communications,
any Guarantor, or any Restricted Subsidiary; if any order for relief is
entered relating to any of the foregoing proceedings; if Borrower,
Communications, any Guarantor, or any Restricted Subsidiary shall call a
meeting of its creditors with a view to arranging a composition or
adjustment of its debts; or if Borrower, Communications, any of their
respective Subsidiaries, or any Guarantor shall by any act or failure to
act indicate its consent to, approval of, or acquiescence in any of the
foregoing;
(l) Any event or condition shall exist which could reasonably be
expected to cause a material adverse change in the business, operations,
properties, or financial positions of Borrower, Communications, any
Guarantor, any of their respective Subsidiaries;
(m) any event or condition shall occur or exist with respect to any
activity or substance regulated under the Environmental Control Statutes
and as a result of such event or condition, Borrower, Communications, any
Guarantor, or any Restricted Subsidiary shall have incurred, or in the
opinion of Lenders be reasonably likely to incur, liability in excess of
$3,000,000 during any consecutive twelve (12) month period;
(n) Any judgment, writ, warrant, attachment, execution, or similar
process which calls for payment or presents liability in excess of
$3,000,000 shall be rendered, issued, or levied against Borrower,
Communications, any Guarantor, any Restricted Subsidiary, or any
THIRD AMENDED AND
69 RESTATED CREDIT AGREEMENT
of their respective property, and such process shall not be paid, waived,
stayed, vacated, discharged, settled, satisfied, or fully bonded within
sixty (60) days after its issuance or levy;
(o) The payment (including, without limitation, any payment by any
Company or Guarantor 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;
(p) (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
Indebtedness 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; or
(q) 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, or the Preferred Stock,
or any agreement evidencing or creating the Subordinated Debt, and (i) the
trustee or the holders of any such Indebtedness or obligation shall
initiate notice to request or require (or any Company or Guarantor shall
automatically be so required) to redeem or repurchase such Indebtedness 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 Indebtedness or obligation arising under such agreements
or instruments.
12.2 REMEDIES. Upon the happening of any Event of Default and at any time
thereafter so long as such Event of Default has not been waived or cured, at the
election of Required Lenders and by notice by Administrative Agent to Borrower
(except if an Event of Default described in SECTION 12.1(k) shall occur, in
which case acceleration shall occur automatically without notice), Required
Lenders may (a) terminate the commitment, and/or (b) declare the entire unpaid
balance, principal, interest, and fees, of all indebtedness of Borrower to
Lenders, hereunder or otherwise, to be immediately due and payable. Upon a
declaration of acceleration, the Commitment shall immediately and automatically
terminate, Lenders shall have no further obligation to make any Advances, and
the immediate right to enforce or realize on any Collateral in any manner or
order they deem expedient without regard to any equitable principles of
marshaling or otherwise. In addition to any rights granted hereunder or in any
documents delivered in connection herewith,
THIRD AMENDED AND
70 RESTATED CREDIT AGREEMENT
Lenders shall have all the rights and remedies granted by any applicable law,
all of which shall be cumulative in nature.
12.3 LIMITATION OF RIGHTS. Notwithstanding any other provision of this
Agreement or any other Loan Paper, any action taken or proposed to be taken by
Collateral Agent, any Co-Agent, any Managing 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.
SECTION 13 AGREEMENT AMONG LENDERS.
13.1 ADMINISTRATIVE AGENT.
(a) Each Lender hereby appoints CoreStates Bank, N.A. (and CoreStates
Bank, 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 be the secured party, mortgagee, beneficiary,
and similar party in respect of, and to receive, as the case may be, any
collateral for the benefit of Lenders; (vi) 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; (vii) 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; (viii) to
deliver to the appropriate persons requests, demands, approvals, and
consents received from Lenders; and (ix) 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) Each Lender hereby appoints NationsBank of TEXAS, N.A., as
Syndication Agent, and Toronto Dominion (Texas), Inc., as Documentation
Agent (and NationsBank of Texas, N.A. and Toronto Dominion (Texas), Inc.
hereby accept such appointments), to take such actions, if any, as are
delegated to such Syndication Agent and Documentation Agent, respectively,
under the terms of the Loan Papers.
(c) Agents (in their respective agency capacities) may resign at any
time from their respective agent positions under the Loan Papers by giving
written notice thereof to Lenders and may be removed as such Agent under
the Loan Papers at any time with cause by Required Lenders. Should the
initial or any successor Agent ever cease to be a party
THIRD AMENDED AND
71 RESTATED CREDIT AGREEMENT
hereto or should the initial or any successor Agent ever resign or be
removed as Agent, then Required Lenders shall elect the successor Agent
from among the Lenders (other than the resigning Agent). If no
successor Agent shall have been so appointed by Required Lenders, within
30 days after the retiring Agent's giving of notice of resignation or
Required Lenders' removal of the retiring Agent, then the retiring Agent
may, on behalf of Lenders, appoint a successor 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 Agent under
the Loan Papers by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the Rights of the
retiring Agent, and the retiring Agent shall be discharged from its
duties and obligations of Agent under the Loan Papers; PROVIDED, THAT
the predecessor Administrative Agent shall deliver to its successor
Administrative Agent all collateral, documents, and money held by it as
Administrative Agent, if any, whereupon such predecessor Administrative
Agent shall be discharged from its duties and obligations as
Administrative Agent under the Loan Papers (PROVIDED, HOWEVER, THAT when
used in connection with LCs issued and outstanding prior to the
appointment of the successor Administrative Agent, "ADMINISTRATIVE
AGENT" shall continue to refer solely to the bank that issued the
outstanding LC; PROVIDED FURTHER THAT any LCs issued or renewed after
the appointment of any successor Administrative Agent shall be issued by
such successor Administrative Agent), 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 Agent's resignation or
removal as Agent under the Loan Papers, the provisions of this SECTION
13 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Agent under the Loan Papers.
(d) Each 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 an Agent; the term "LENDER" shall, unless
the context otherwise indicates, include Agents; and any resignation, or
removal of by any 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 Agents are not fiduciaries for Lenders
or for Borrower but simply is acting in the capacity described herein to
alleviate administrative burdens for both Borrower and Lenders, that Agents
have no duties or responsibilities to Lenders or Borrower except those
expressly set forth herein, and that Agents in their capacities as Lenders
have all Rights of any other Lender.
(e) Each 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, Agents and
their respective 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 any 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 any Agent or its Affiliates which may be or
become security for the obligations of Borrower arising under the Loan
Papers by
THIRD AMENDED AND
72 RESTATED CREDIT AGREEMENT
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.
13.2 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 or Syndication Agent in connection with any of the Loan
Papers if and to the extent such Agents do 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 such Agents subsequently receive from such
other sources.
13.3 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).
13.4 DELEGATION OF DUTIES; RELIANCE. Agents may perform any of their
respective duties or exercise any of their respective rights under the Loan
Papers by or through its Representatives. Agents and their 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 14.2,
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 an Event of 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.
13.5 LIMITATION OF LIABILITY.
(a) No Agent or any of its 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
THIRD AMENDED AND
73 RESTATED CREDIT AGREEMENT
fraud, gross negligence, or willful misconduct; and no Agent or any of its
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 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, no 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 or any 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 or Agents, as
the case may be, shall be entitled (but shall not be required) to refrain
(without incurring any 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, agents may act hereunder in their own discretion without requesting
instructions. In no event, however, shall Administrative Agent, any 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 any Agent as a result of such
Agent's acting or refraining from acting hereunder in accordance with the
instructions of Required Lenders.
(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 Agent in respect of, (i) the creditworthiness of any Company
or 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 Agents and their 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 any
Agent), to the extent Agents and their respective Representatives are not
reimbursed for such amounts by any Company (PROVIDED THAT, no Agent or any
respective Representative of an Agent shall have the right to be
indemnified hereunder for its or their own fraud, gross negligence, or
willful misconduct).
13.6 DEFAULT; COLLATERAL. Upon the occurrence and continuance of an Event
of 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
THIRD AMENDED AND
74 RESTATED CREDIT AGREEMENT
for so refraining) unless and until Administrative Agent shall have received
instructions from Required Lenders or Lenders, as appropriate, in accordance
with the Loan Papers. 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 and any suit or proceeding instituted by Administrative
Agent in furtherance of such enforcement shall be brought in its name as
administrative Agent 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. 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.
13.7 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 Lender, Managing Agent, or
Participant except for acts or omissions resulting from its own fraud, gross
negligence or wilful misconduct, and (b) no Agent, Managing Agent, Lender, or
Participant shall incur any liability to any other Person for any act or
omission of any other Lender or any other Participant.
13.8 RELATIONSHIP OF LENDERS. Nothing herein shall be construed as
creating a partnership or joint venture among Agents and Lenders.
13.9 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, any Guarantor, or any
other Person other than Lenders; consequently, no Company, no Guarantor, nor any
other Person shall be entitled to rely upon, or to raise as a defense, in any
manner whatsoever, the failure of any Lender to comply with such provisions.
13.10 MANAGING AGENTS AND CO-AGENTS. None of the Lenders identified in
this Agreement as "MANAGING AGENTS" or "CO-AGENTS" 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 "MANAGING AGENTS" or
"CO-AGENTS" shall have or be deemed to have any fiduciary relationship with any
Lender.
13.11 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 14 MISCELLANEOUS.
14.1 INDEMNIFICATION AND RELEASE PROVISIONS. Borrower and each Guarantor
hereby agree to defend Agents and each Lender and their directors, officers,
agents, employees, and counsel from, and hold each of them harmless against, any
and all losses, liabilities (including, without limitation, settlement costs and
amounts, transfer taxes, documentary taxes, or assessments or charges made by
any governmental authority), claims, damages, interest, judgments, costs, or
expenses, including,
THIRD AMENDED AND
75 RESTATED CREDIT AGREEMENT
without limitation, reasonable fees and disbursements of counsel, incurred by
or asserted against any of them arising out of or in connection with or by
reason of this Agreement, the Commitment, the making of the Loan, or any
Collateral Security Document, including, without Limitation, any and all
losses, liabilities, claims, damages, interests, judgments, costs, or expenses
relating to or arising under any Environmental Control Statute or the
application of any such Statute to Borrower's or any Guarantor's or any
Restricted Subsidiary's properties or assets, except, however, to the extent
resulting from a Lender's own willful misconduct or gross negligence;
PROVIDED, HOWEVER, that Agents, Lenders, and their respective directors,
officers, agents, employees, and counsel shall in no event be liable for any
consequential damages. Borrower, Communications, and each Guarantor each
hereby release Agents and each Lender and its respective directors, officers,
agents, employees, and counsel from any and all claims for loss, damages,
costs, or expenses caused or alleged to be caused by any act or omission on
the part of any of them, except, however, to the extent any of the foregoing
results from a Lender's own wilful misconduct or gross negligence. All
obligations provided for in this SECTION 14.1 shall survive any termination of
this Agreement or the Commitment and the repayment of the Loan.
14.2 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 Paper 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.
(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 any part of its portion
of the Advances and its Note); 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 amounts of any concurrent assignments by the
assigning Lender to the same assignee under either or both of (A) the
Revolving Credit agreement dated as of March 25, 1998, among
operations, NationsBank of Texas, N.A., as "ADMINISTRATIVE AGENT," and
lenders party thereto [as the same may hereafter be amended, modified,
restated, or supplemented] and (b) the 364-Day Revolving Credit and
Term Loan Agreement dated as of March 25, 1998, among operations,
NationsBank of Texas, N.A., as "ADMINISTRATIVE AGENT," and the lenders
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;
(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 note;
THIRD AMENDED AND
76 RESTATED CREDIT AGREEMENT
(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 G hereto, together with
any Note 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 the
appropriate Note 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(d).
(c) Administrative Agent shall maintain at its address referred to in
SECTION 14.8 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
Loan 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 14.16, SCHEDULE 2.1 shall
automatically be deemed amended (to the extent required) by Administrative
Agent to reflect the name, address, and respective percentage interest in
the Commitment of the assignor and assignee.
(d) Upon its receipt of an Assignment and Acceptance Agreement
executed by the parties thereto, together with any Note subject to such
assignment and payment of the processing fee, Administrative Agent shall,
if such Assignment and Acceptance has been completed and is in
substantially the form of EXHIBIT G 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 Loan for
THIRD AMENDED AND
77 RESTATED CREDIT AGREEMENT
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 part of its
portions of the Loan and its Note 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.
(g) Any Lender may furnish any information concerning Borrower and
each of its Subsidiaries in the possession of such Lender from time to time
to Eligible Assignees and Participants (including prospective Eligible
Assignees and Participants).
14.3 BINDING AND GOVERNING LAW. This Agreement and all documents executed
hereunder shall be binding upon and shall inure to the benefit of the parties
hereto, and their respective successors and assigns, and shall be governed as to
their validity, interpretation, and effect by the laws of the State of Texas.
THIRD AMENDED AND
78 RESTATED CREDIT AGREEMENT
14.4 SURVIVAL. All agreements, representations, warranties, and covenants
of Borrower contained herein or in any documentation required hereunder shall
survive the execution of this Agreement and the making of the Loan hereunder
and, except for SECTIONS 8.10 and 14.1 which provide otherwise, will continue in
full force and effect as long as any Indebtedness or other obligation of
Borrower to any Lender remains outstanding.
14.5 NO WAIVER; DELAY. If Lenders or any of them shall waive any power,
right, or remedy arising hereunder or under any applicable law, such waiver
shall not be deemed to be a waiver upon any other Lender or the later occurrence
or recurrence of any of events giving rise to such power, right, or remedy with
respect to any Lender. No delay by Lenders in the exercise of any power, right,
or remedy shall, under any circumstance, constitute or be deemed to be a waiver,
express or implied, of the same, and no course of dealing between the parties
hereto shall constitute a waiver of Lenders' powers, rights, or remedies. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
14.6 MODIFICATION; WAIVER. No modification or waiver of any provision of
this Agreement or any Note, nor any consent to any departure by Borrower or any
Guarantor herefrom or therefrom, shall in any case be effective unless the same
be in writing and signed by the requisite Lenders, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on Borrower or Guarantor in any
case shall entitle Borrower or any Guarantor to any other or further notice or
demand in any similar or other circumstances. Notwithstanding the foregoing, no
modification or amendment hereof, consent hereunder, or waiver of Event of
Default shall be effective except by written consent of the Required Lenders;
PROVIDED, HOWEVER, that the written consent of all Lenders shall be required to
(a) decrease the rate of interest, (b) modify the amount of the Commitment,
(c) change the dates of required payments of interest and fees hereunder or of
required Commitment reductions, (d) decrease the principal amount of any payment
or Commitment reduction required hereunder; (e) decrease the Commitment fee or
Letter of Credit fees, (f) postpone the Final Maturity Date, (g) release any
Guarantor (except in connection with the redesignation of a "RESTRICTED
SUBSIDIARY" to an "UNRESTRICTED SUBSIDIARY" in accordance with SECTION 8.28) or
Collateral except as expressly permitted to be sold or transferred pursuant to
SECTION 9.7(a) hereof or otherwise expressly specified herein, (h) amend the
definition of Required Lenders, or (i) modify or waive the provisions of this
SECTION 14.6. Without the consent of such Lender, no Lender's Maximum Principal
Amount may be increased. Any amendment or waiver made pursuant to this
SECTION 14.6 shall apply to and bind all of Lenders and any future holder of any
Notes.
14.7 HEADINGS. The various headings in this Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Agreement or any provision hereof.
14.8 NOTICES. Any notice, request, or consent required hereunder or in
connection herewith shall be deemed satisfactorily given if in writing and
delivered by hand, by telecopy, or mailed (registered or certified mail) to the
parties at their respective addresses or telecopier numbers set forth below or
such other addresses or telecopier numbers as may be given by any party to the
others in writing:
THIRD AMENDED AND
79 RESTATED CREDIT AGREEMENT
if to Borrower:
Xxxxxx Operating Company
00000 X. Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier: 000-000-0000
if to Administrative Agent:
CoreStates Bank, N.A.
F.C. 1-8-11-28
0000 Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telecopier: 000-000-0000
if to Lenders and Agents:
to the names, addresses, and telecopier numbers set forth on
SCHEDULE 2.1 attached hereto.
14.9 PAYMENT ON NON-BUSINESS DAYS. Whenever any payment to be made
hereunder shall be stated to be due on a day other than a Business Day, such
payment may be made on the next succeeding Business Day; PROVIDED, HOWEVER, that
such extension of time shall be included in the computation of interest due in
conjunction with such payment or other fees due hereunder, as the case may be.
14.10 TIME OF DAY. All time of day restrictions imposed herein shall
be calculated using Administrative Agent's local time.
14.11 SEVERABILITY. If any provision of this Agreement, or the
application thereof to any person or circumstance, shall be invalid or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provisions to other persons or circumstances, shall not be
affected thereby and shall be enforced to the greatest extent permitted by law.
14.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts with the same effect as if all the signatures on such counterparts
appeared on one document, and each such counterpart shall be deemed to be an
original.
14.13 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
THIRD AMENDED AND
80 RESTATED CREDIT AGREEMENT
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 14.13 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.
14.14 ENTIRETY. THE RIGHTS AND OBLIGATIONS OF BORROWER, EACH
GUARANTOR, LENDERS, EACH MANAGING AGENT, AND EACH AGENT 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 BORROWER, ANY GUARANTOR, ANY LENDER, AND/OR
ADMINISTRATIVE 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 BORROWER, EACH GUARANTOR, MANAGING AGENT, LENDERS, AND AGENTS,
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BY SUCH PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN
SUCH PARTIES.
[REMAINDER OF PAGE INTENTIONALLY BLANK.
SIGNATURE PAGES FOLLOW.]
THIRD AMENDED AND
81 RESTATED CREDIT AGREEMENT
IN WITNESS WHEREOF, the undersigned, by their duly authorized officers and
trustees, as applicable, have executed this Agreement the day and year first
above written.
Attest: XXXXXX OPERATING COMPANY
By: By:
------------------------------ ------------------------------
Name: Xxxxxxx Xxxxxx Name: Xxxxxxx X. Xxxxxx
Title: Secretary Title: President
[CORPORATE SEAL]
CORESTATES BANK, N.A., for itself as
Administrative Agent, as an Agent, and
as a Lender
By:
------------------------------
Name:
-------------------------
Title:
------------------------
[EXECUTIONS CONTINUED]
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
Each of the undersigned GUARANTORS
hereby acknowledges that it has reviewed
this Credit Agreement and agrees that
the representations and covenants
contained in SECTIONS 5, 8, 9, and 10
hereof apply to Guarantors:
XXXXXX COMMUNICATIONS CORPORATION
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
XXXXXX CELLULAR SYSTEMS, INC.
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX CELLULAR OF XXXXXXXX, INC.
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX CELLULAR OF XXXX, INC.
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX CELLULAR OF KANSAS/MISSOURI, INC.
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
XXXXXX CELLULAR OF MARYLAND, INC.
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
XXXXXX CELLULAR OF ARIZONA, INC.
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
TEXAS RSA NO. 2 LIMITED PARTNERSHIP
By: Xxxxxx Cellular Systems, Inc.,
Its Managing General Partner
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
OKLAHOMA RSA 5 LIMITED PARTNERSHIP
By: Xxxxxx Cellular Systems, Inc.,
Its Managing General Partner
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
OKLAHOMA RSA 7 LIMITED PARTNERSHIP
By: Xxxxxx Cellular Systems, Inc.,
Its Managing General Partner
By:
---------------------------------
Name: G. Xxxxxx Xxxxx
Title: President
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
XXXXXX CELLULAR SUBSIDIARY COMPANY
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
ASSOCIATED TELECOMMUNICATIONS &
TECHNOLOGIES, INC.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
XXXXXX CELLULAR OF SOUTHERN
CALIFORNIA, INC.
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
THIRD AMENDED AND
RESTATED CREDIT AGREEMENT
