EXECUTION COPY
EXHIBIT 10.7
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$250,000,000
CREDIT AGREEMENT
among
INFONET SERVICES CORPORATION,
as Borrower,
The Several Lenders
from Time to Time Parties Hereto,
XXXXXXX XXXXX & CO.,
as Lead Arranger, Book Manager and Syndication Agent,
THE BANK OF NOVA SCOTIA,
as Administrative Agent,
and
SOCIETE GENERALE,
as Documentation Agent
Dated as of August 17, 1999
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TABLE OF CONTENTS
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Page
SECTION 1. DEFINITIONS............................................... 1
1.1 Defined Terms............................................... 1
1.2 Other Definitional Provisions............................... 23
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS........................... 24
2.1 Term Loan Commitments....................................... 24
2.2 Procedure for Term Loan Borrowing........................... 24
2.3 Repayment of Term Loans..................................... 25
2.4 Revolving Credit Commitments................................ 26
2.5 Procedure for Revolving Credit Borrowing.................... 27
2.6 Repayment of Loans; Evidence of Debt........................ 27
2.7 Commitment Fees, etc........................................ 28
2.8 Termination or Reduction of Commitments..................... 28
2.9 Optional Prepayments........................................ 29
2.10 Mandatory Prepayments and Commitment Reductions............. 29
2.11 Conversion and Continuation Options......................... 31
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches... 31
2.13 Interest Rates and Payment Dates........................... 31
2.14 Computation of Interest and Fees............................ 32
2.15 Inability to Determine Interest Rate........................ 32
2.16 Pro Rata Treatment and Payments............................. 33
2.17 Requirements of Law......................................... 35
2.18 Taxes....................................................... 36
2.19 Indemnity................................................... 38
2.20 Illegality.................................................. 38
2.21 Change of Lending Office.................................... 39
2.22 Replacement of Lenders under Certain Circumstances.......... 39
SECTION 3. LETTERS OF CREDIT......................................... 39
3.1 L/C Commitment.............................................. 39
3.2 Procedure for Issuance of Letter of Credit.................. 40
3.3 Fees and Other Charges...................................... 40
3.4 L/C Participations.......................................... 41
3.5 Reimbursement Obligation of the Borrower.................... 42
3.6 Obligations Absolute........................................ 42
3.7 Letter of Credit Payments................................... 42
3.8 Applications................................................ 43
SECTION 4. REPRESENTATIONS AND WARRANTIES............................ 43
4.1 Financial Condition......................................... 43
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4.2 No Change.................................................. 43
4.3 Corporate Existence; Compliance with Law................... 43
4.4 Corporate Power; Authorization; Enforceable Obligations.... 44
4.5 No Legal Bar............................................... 44
4.6 No Material Litigation..................................... 44
4.7 No Default................................................. 45
4.8 Ownership of Property; Liens............................... 45
4.9 Intellectual Property...................................... 45
4.10 Taxes...................................................... 45
4.11 Federal Regulations........................................ 45
4.12 Labor Matters.............................................. 45
4.13 ERISA...................................................... 46
4.14 Investment Company Act; Other Regulations.................. 46
4.15 Subsidiaries............................................... 46
4.16 Use of Proceeds............................................ 46
4.17 Environmental Matters...................................... 47
4.18 Accuracy of Information, etc............................... 48
4.19 Solvency................................................... 48
4.20 Year 2000 Matters.......................................... 48
4.21 FCC and State Regulatory Compliance........................ 48
4.22 Security Documents......................................... 50
SECTION 5. CONDITIONS PRECEDENT...................................... 50
5.1 Conditions to Initial Extension of Credit.................. 50
5.2 Conditions to Each Extension of Credit..................... 52
SECTION 6. AFFIRMATIVE COVENANTS..................................... 53
6.1 Financial Statements....................................... 53
6.2 Certificates; Other Information............................ 53
6.3 Payment of Obligations..................................... 54
6.4 Conduct of Business and Maintenance of Existence, etc...... 54
6.5 Maintenance of Property; Insurance......................... 55
6.6 Inspection of Property; Books and Records; Discussions..... 55
6.7 Notices.................................................... 55
6.8 Environmental Laws......................................... 56
6.9 Interest Rate Protection................................... 56
6.10 Additional Collateral, etc................................. 56
6.11 Further Assurances......................................... 58
SECTION 7. NEGATIVE COVENANTS........................................ 58
7.1 Financial Condition Covenants.............................. 58
7.2 Limitation on Indebtedness................................. 59
7.3 Limitation on Liens........................................ 60
7.4 Limitation on Fundamental Changes.......................... 61
7.5 Limitation on Disposition of Property...................... 61
7.6 Limitation on Restricted Payments.......................... 62
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7.7 Limitation on Capital Expenditures........................ 62
7.8 Limitation on Investments................................. 63
7.9 Limitation on Transactions with Affiliates................ 64
7.10 Limitation on Sales and Leasebacks........................ 64
7.11 Limitation on Changes in Fiscal Periods................... 64
7.12 Limitation on Negative Pledge Clauses..................... 64
7.13 Limitation on Restrictions on Subsidiary Distributions.... 65
7.14 Limitation on Lines of Business........................... 65
7.15 Limitation on Hedge Agreements............................ 65
7.16 Structure of Future Acquisitions.......................... 65
7.17 Limitation on Subsidiary Transactions..................... 65
SECTION 8. EVENTS OF DEFAULT........................................ 65
SECTION 9. THE AGENTS............................................... 69
9.1 Appointment............................................... 69
9.2 Delegation of Duties...................................... 69
9.3 Exculpatory Provisions.................................... 69
9.4 Reliance by Agents........................................ 69
9.5 Notice of Default......................................... 70
9.6 Non-Reliance on Agents and Other Lenders.................. 70
9.7 Indemnification........................................... 71
9.8 Agent in Its Individual Capacity.......................... 71
9.9 Successor Agents.......................................... 71
9.10 Authorization to Release Liens and Guarantees............. 72
9.11 The Arranger; the Documentation Agent..................... 72
SECTION 10. MISCELLANEOUS............................................ 72
10.1 Amendments and Waivers.................................... 72
10.2 Notices................................................... 73
10.3 No Waiver; Cumulative Remedies............................ 74
10.4 Survival of Representations and Warranties................ 74
10.5 Payment of Expenses....................................... 75
10.6 Successors and Assigns; Participations and Assignments.... 76
10.7 Adjustments; Set-off...................................... 78
10.8 Counterparts.............................................. 79
10.9 Severability.............................................. 79
10.10 Integration............................................... 79
10.11 GOVERNING LAW............................................. 79
10.12 Submission To Jurisdiction; Waivers....................... 79
10.13 Acknowledgments........................................... 80
10.14 Confidentiality........................................... 80
10.15 Release of Collateral and Guarantee Obligations........... 81
10.16 Accounting Changes........................................ 81
10.17 WAIVERS OF JURY TRIAL..................................... 82
10.18 Limitation of Interest.................................... 82
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ANNEXES:
A Lenders and Revolving Credit Commitments
A-1 Pricing Grid
SCHEDULES:
4.4 Consents, Authorizations, Filings and Notices
4.15 Subsidiaries
4.21(b) Existing FCC Authorizations
4.21(c) Investigations and Proceedings
4.21(d) Matters Affecting FCC Authorizations, State and Foreign Permits, etc.
4.22-1 UCC Filing Jurisdictions
4.22-2 UCC Filing Statements To Remain on File
4.22-3 UCC Filing Statements To Be Terminated
7.2(d) Existing Indebtedness
7.3(f) Existing Liens
EXHIBITS:
A Form of Guarantee and Collateral Agreement
B Form of Compliance Certificate
C Form of Closing Certificate
D-1 Form of Term Note
D-2 Form of Revolving Credit Note
E Form of Assignment and Acceptance
F Matters to be Covered by Legal Opinion of
Xxxxxx & Xxxxxxx
G Form of Exemption Certificate
H Form of Prepayment Option Notice
I Form of Notice of Borrowing
J Form of Notice of Conversion
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Exhibit 10.7
CREDIT AGREEMENT, dated as of August 17, 1999, among INFONET SERVICES
CORPORATION, a Delaware corporation (the "Borrower"), the several banks and
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other financial institutions or entities from time to time parties to this
Agreement (the "Lenders"), XXXXXXX XXXXX & CO., as lead arranger, book manager
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and syndication agent (in such capacity, the "Arranger"), THE BANK OF NOVA
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SCOTIA, as administrative agent (in such capacity, the "Administrative Agent"),
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and SOCIETE GENERALE, as documentation agent (in such capacity, the
"Documentation Agent").
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W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the Borrower has requested the Lenders to provide credit
facilities in the aggregate principal amount of $250,000,000 (as hereinafter
defined, the "Facilities") in order (i) to finance capital expenditures and
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other general corporate purposes of the Borrower and (ii) to repay in full all
amounts outstanding under the Existing Credit Facilities; and
WHEREAS, the Lenders are willing to make the Facilities available upon
and subject to the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the terms listed in
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this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"Administrative Agent": as defined in the preamble hereto.
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"Adjustment Date": as defined in the Pricing Grid.
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"Affiliate": as to any Person, any other Person that, directly or
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indirectly, is in control of, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" of a Person
means the power, directly or indirectly, either to (a) vote 10% or more of
the securities having ordinary voting power for the election of directors
(or persons performing similar functions) of such Person or (b) direct or
cause the direction of the management and policies of such Person, whether
by contract or otherwise.
"Agents": the collective reference to the Administrative Agent,
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Documentation Agent and the Arranger.
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"Aggregate Exposure": with respect to any Lender at any time, an
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amount equal to (a) until the Closing Date, the aggregate amount of such
Lender's Commitments at such time and (b) thereafter, the sum of (i) the
aggregate then unpaid principal amount of such Lender's Term Loans, (ii)
the amount of such Lender's Available Delayed Draw Term Loan Commitment, if
any, then in effect and (iii) the amount of such Lender's Revolving Credit
Commitment then in effect or, if the Revolving Credit Commitments have been
terminated, the amount of such Lender's Revolving Extensions of Credit then
outstanding.
"Agreement": this Credit Agreement, as amended, supplemented or
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otherwise modified from time to time.
"Applicable Margin": for each Type of Loan under each Facility, the
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rate per annum set forth opposite such Facility under the relevant column
heading below:
Base Rate Eurodollar
Loans Loans
Revolving Credit Loans 1.50% 2.50%
Delayed Draw Term Loans 1.50% 2.50%
Tranche B Term Loans 1.75% 2.75%
provided, that on and after the date which is six months after the Closing
Date, the Applicable Margin with respect to Revolving Credit Loans will be
determined pursuant to the Pricing Grid.
"Asset Sales": any Disposition of Property or series of related
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Dispositions of Property (excluding any such Disposition permitted by
clauses (a)-(g) and (i) of Section 7.5) which yields gross proceeds to the
Borrower or any of its Subsidiaries (valued at the initial principal amount
thereof in the case of non-cash proceeds consisting of notes or other debt
securities and valued at fair market value in the case of other non-cash
proceeds) in excess of $1,000,000.
"Assignee": as defined in Section 10.6(c).
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"Assignor": as defined in Section 10.6(c).
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"Application": an application, in such form as the relevant Issuing
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Lender may specify from time to time, requesting such Issuing Lender to
issue a Letter of Credit.
"AUCS Transaction": a contractual arrangement between the Borrower or
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a Subsidiary and AUCS N.V. and/or AUCS V.O.F. providing for the Borrower or
a Subsidiary to render certain services that had previously been rendered
by AUCS N.V. and/or AUCS V.O.F.; provided that such arrangement will not
result in (i) a net increase
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in indebtedness or net losses of the Borrower or its Subsidiaries or (ii) a
net decrease in Consolidated EBITDA.
"Available Delayed Draw Term Loan Commitment": with respect to any
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Delayed Draw Term Loan Lender at any time, an amount equal to the excess,
if any, of (a) such Lender's Delayed Draw Term Loan Commitment then in
effect over (b) the aggregate amount of the Delayed Draw Term Loans made by
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such Lender (whether or not then outstanding).
"Available Revolving Credit Commitment": with respect to any Lender
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at any time, an amount equal to the excess, if any, of (a) such Lender's
Revolving Credit Commitment then in effect over (b) the aggregate principal
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or face amount of such Lender's Revolving Extensions of Credit then
outstanding.
"Base Rate": for any day, a rate per annum (rounded upwards, if
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necessary, to the next 1/16 of 1%) equal to the greatest of (a) the Prime
Rate in effect on such day, (b) the Base CD Rate in effect on such day plus
1% and (c) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "Prime Rate" shall mean the rate of interest
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per annum publicly announced from time to time by the Reference Lender as
its prime or base rate in effect at its principal office in New York City
(the Prime Rate not being intended to be the lowest rate of interest
charged by the Reference Lender in connection with extensions of credit to
debtors); "Base CD Rate" shall mean the sum of (a) the product of (i) the
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Three-Month Secondary CD Rate and (ii) a fraction, the numerator of which
is one and the denominator of which is one minus the C/D Reserve Percentage
and (b) the C/D Assessment Rate; and "Three-Month Secondary CD Rate" shall
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mean, for any day, the secondary market rate for three-month certificates
of deposit reported as being in effect on such day (or, if such day shall
not be a Business Day, the next preceding Business Day) by the Board
through the public information telephone line of the Federal Reserve Bank
of New York (which rate will, under the current practices of the Board, be
published in Federal Reserve Statistical Release H.15(519) during the week
following such day), or, if such rate shall not be so reported on such day
or such next preceding Business Day, the average of the secondary market
quotations for three-month certificates of deposit of major money center
banks in New York City received at approximately 10:00 A.M., New York City
time, on such day (or, if such day shall not be a Business Day, on the next
preceding Business Day) by the Reference Lender from three New York City
negotiable certificate of deposit dealers of recognized standing selected
by it. Any change in the Base Rate due to a change in the Prime Rate, the
Base CD Rate or the Federal Funds Effective Rate shall be effective as of
the opening of business on the effective day of such change in the Prime
Rate, the Three-Month Secondary CD Rate or the Federal Funds Effective
Rate, respectively.
"Base Rate Loans": Loans for which the applicable rate of interest is
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based upon the Base Rate.
"Benefitted Lender": as defined in Section 10.7.
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"Board": the Board of Governors of the Federal Reserve System of the
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United States (or any successor).
"Borrower": as defined in the preamble hereto.
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"Borrowing Date": any Business Day specified by the Borrower as a
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date on which the Borrower requests the Lenders to make Loans hereunder.
"Business Day": (i) for all purposes other than as covered by clause
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(ii) below, a day other than a Saturday, Sunday or other day on which
commercial banks in New York City are authorized or required by law to
close and (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day
which is a Business Day described in clause (i) and which is also a day for
trading by and between banks in Dollar deposits in the interbank eurodollar
market.
"Capital Expenditures": for any period, with respect to any Person,
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the aggregate of all expenditures by such Person for the acquisition or
leasing (pursuant to a capital lease) of fixed or capital assets or
additions to equipment (including replacements, capitalized repairs and
improvements during such period) which are required to be capitalized under
GAAP on a balance sheet of such Person.
"Capital Lease Obligations": with respect to any Person, the
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obligations of such Person to pay rent or other amounts under any lease of
(or other arrangement conveying the right to use) real or personal
property, or a combination thereof, which obligations are required to be
classified and accounted for as capital leases on a balance sheet of such
Person under GAAP; and, for the purposes of this Agreement, the amount of
such obligations at any time shall be the capitalized amount thereof at
such time determined in accordance with GAAP.
"Capital Stock": any and all shares, interests, participations or
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other equivalents (however designated) of capital stock of a corporation,
any and all equivalent ownership interests in a Person (other than a
corporation) and any and all warrants, rights or options to purchase any of
the foregoing.
"Cash Equivalents": (a) marketable direct obligations issued by, or
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unconditionally guaranteed by, the United States Government or issued by
any agency thereof and backed by the full faith and credit of the United
States, in each case maturing within one year from the date of acquisition;
(b) certificates of deposit, time deposits, eurodollar time deposits or
overnight bank deposits having maturities of twelve months or less from the
date of acquisition issued by any Lender or by any commercial bank
organized under the laws of the United States of America or any state
thereof having combined capital and surplus of not less than $500,000,000;
(c) commercial paper of an issuer rated at least A-2 by Standard & Poor's
Ratings Services ("S&P") or P-2 by Xxxxx'x Investors Service, Inc.
---
("Moody's"), or carrying an equivalent rating by a
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nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally,
and maturing within six months from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the
requirements of clause (b) of this definition, having a term of not more
than 30 days with respect to securities issued or fully guaranteed or
insured by the United States government; (e) securities with maturities of
one year or less from the date of acquisition issued or fully guaranteed by
any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by
Moody's; (f) securities with maturities of six months or less from the date
of acquisition backed by standby letters of credit issued by any Lender or
any commercial bank satisfying the requirements of clause (b) of this
definition; and (g) shares of money market mutual or similar funds which
invest not less than 95% of their assets in assets satisfying the
requirements of clauses (a) through (f) of this definition.
"C/D Assessment Rate": for any day, the annual assessment rate in
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effect on such day that is payable by a member of the Bank Insurance Fund
maintained by the Federal Deposit Insurance Corporation (the "FDIC")
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classified as well-capitalized and within supervisory subgroup "B" (or a
comparable successor assessment risk classification) within the meaning of
12 C.F.R. (S) 327.4 (or any successor provision) to the FDIC (or any
successor) for the FDIC's (or such successor's) insuring time deposits at
offices of such institution in the United States.
"C/D Reserve Percentage": for any day, that percentage (expressed as
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a decimal) which is in effect on such day, as prescribed by the Board, for
determining the maximum reserve requirement for a Depositary Institution
(as defined in Regulation D of the Board as in effect from time to time) in
respect of new non-personal time deposits in Dollars having a maturity of
30 days or more.
"Closing Date": the date on which the conditions precedent set forth
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in Section 5.1 shall have been satisfied, which date shall be not later
than August 20, 1999.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
"Collateral": all Property of the Loan Parties constituting Specified
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Collateral, now owned or hereafter acquired, upon which a Lien is purported
to be created by any Security Document.
"Commitment": as to any Lender, the sum of the Revolving Credit
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Commitment, the Delayed Draw Term Loan Commitment and the Tranche B Term
Loan Commitment of such Lender.
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"Commitment Fee Rate": with respect to the Delayed Draw Term Loan
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Facility and the Revolving Credit Facility, a rate per annum, calculated
daily based upon the amount outstanding on each day under each such
Facility, determined with respect to each such Facility in accordance with
the following grid:
Aggregate Principal Amount Commitment
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Outstanding Under Such Facility Fee Rate
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(as a percentage of the Delayed Draw
Term Loan or Revolving Credit
Commitment)
* 33% 1.0%
** 33% .75%
and
* 66%
** 66% .50%
* Less than or equal to
** Greater than
"Commonly Controlled Entity": an entity, whether or not incorporated,
--------------------------
that is under common control with the Borrower within the meaning of
Section 4001 of ERISA or is part of a group that includes the Borrower and
that is treated as a single employer under Section 414 of the Code.
"Communications Act": the Communications Act of 1934, and any
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successor federal statute, and the rules and regulations of the FCC
thereunder, all as amended and as the same may be in effect from time to
time.
"Compliance Certificate": a certificate duly executed by a
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Responsible Officer substantially in the form of Exhibit B.
"Confidential Information Memorandum": the Confidential Information
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Memorandum dated July 1999 and furnished to the initial Lenders in
connection with the syndication of the Facilities.
"Consolidated Current Assets": at any date, all amounts (other than
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cash and Cash Equivalents) that would, in conformity with GAAP, be set
forth opposite the caption "total current assets" (or any like caption) on
a consolidated balance sheet of the Borrower and its Subsidiaries at such
date.
"Consolidated Current Liabilities": at any date, all amounts that
--------------------------------
would, in conformity with GAAP, be set forth opposite the caption "total
current liabilities" (or any like caption) on a consolidated balance sheet
of the Borrower and its Subsidiaries at such date, but excluding (a) the
current portion of any Funded Debt of the Borrower and its
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Subsidiaries and (b), without duplication, all Indebtedness consisting of
Revolving Credit Loans, to the extent otherwise included therein.
"Consolidated EBITDA": of any Person for any period, Consolidated Net
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Income of such Person and its Subsidiaries for such period plus, without
----
duplication and to the extent reflected as a charge in the statement of
such Consolidated Net Income for such period, the sum of (a) income tax
expense, (b) Consolidated Interest Expense of such Person and its
Subsidiaries, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with
Indebtedness, (c) depreciation and amortization expense, (d) amortization
of intangibles (including, but not limited to, goodwill) and organization
costs, (e) any extraordinary, unusual or non-recurring expenses or losses
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, losses on sales
of assets outside of the ordinary course of business) and (f) any other
non-cash charges, and minus, to the extent included in the statement of
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such Consolidated Net Income for such period, the sum of (x) interest
income (except to the extent deducted in determining Consolidated Interest
Expense), (y) any extraordinary, unusual or non-recurring income or gains
(including, whether or not otherwise includable as a separate item in the
statement of such Consolidated Net Income for such period, gains on the
sales of assets outside of the ordinary course of business) and (z) any
other non-cash income, all as determined on a consolidated basis; provided
that for purposes of calculating Consolidated EBITDA of the Borrower and
its Subsidiaries for any period, (i) the Consolidated EBITDA of any Person
acquired by the Borrower or its Subsidiaries during such period shall be
included on a pro forma basis for such period (assuming the consummation of
such acquisition and the incurrence or assumption of any Indebtedness in
connection therewith occurred on the first day of such period) if the
consolidated balance sheet of such acquired Person and its consolidated
Subsidiaries as at the end of the period preceding the acquisition of such
Person and the related consolidated statements of income and stockholders'
equity and of cash flows for the period in respect of which Consolidated
EBITDA is to be calculated (1) have been previously provided to the
Administrative Agent and the Lenders and (2) either (A) have been reported
on without a qualification arising out of the scope of the audit by
independent certified public accountants of nationally recognized standing
or (B) have been found acceptable by the Administrative Agent (such
acceptance not to be unreasonably withheld), (ii) the Consolidated EBITDA
of any Person Disposed of by the Borrower or its Subsidiaries during such
period shall be excluded for such period (assuming the consummation of such
Disposition and the repayment of any Indebtedness in connection therewith
occurred on the first day of such period) and (iii) the components of the
foregoing definition attributable to NTC during the relevant period shall
be excluded.
"Consolidated Fixed Charge Coverage Ratio": for any period, the ratio
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of (a) Consolidated EBITDA for such period less the aggregate amount
actually paid by the Borrower and its Subsidiaries during such period on
account of Capital Expenditures (excluding the principal amount of
Indebtedness incurred in connection with such expenditures) to (b)
Consolidated Fixed Charges for such period.
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"Consolidated Fixed Charges": for any period, the sum (without
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duplication) of (a) Consolidated Interest Expense for such period and (b)
scheduled payments made during such period on account of principal of
Indebtedness of the Borrower or any of its Subsidiaries (including
scheduled principal payments in respect of the Term Loans).
"Consolidated Interest Coverage Ratio": for any period, the ratio of
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(a) Consolidated EBITDA of the Borrower and its Subsidiaries for such
period to (b) Consolidated Interest Expense of the Borrower and its
Subsidiaries for such period.
"Consolidated Interest Expense": of any Person for any period, total
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cash interest expense (including that attributable to Capital Lease
Obligations) of such Person and its Subsidiaries for such period with
respect to all outstanding Indebtedness of such Person and its Subsidiaries
(including, without limitation, all commissions, discounts and other fees
and charges owed by such Person with respect to letters of credit and
bankers' acceptance financing and net costs of such Person under Hedge
Agreements in respect of interest rates to the extent such net costs are
allocable to such period in accordance with GAAP).
"Consolidated Leverage Ratio": as at the last day of any period of
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four consecutive fiscal quarters of the Borrower, the ratio of (a)
Consolidated Total Debt on such day to (b) the product of Consolidated
EBITDA of the Borrower and its Subsidiaries for such period.
"Consolidated Net Income": of any Person for any period, the
-----------------------
consolidated net income (or loss) of such Person and its Subsidiaries for
such period, determined on a consolidated basis in accordance with GAAP;
provided, that in calculating Consolidated Net Income of the Borrower and
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its consolidated Subsidiaries for any period, there shall be excluded (a)
the income (or deficit) of any Person accrued prior to the date it becomes
a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any
Person (other than a Subsidiary of the Borrower) in which the Borrower or
any of its Subsidiaries has an ownership interest, except to the extent
that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions and (c) the
undistributed earnings of any Subsidiary of the Borrower to the extent that
the declaration or payment of dividends or similar distributions by such
Subsidiary is not at the time permitted by the terms of any Contractual
Obligation (other than under any Loan Document) or Requirement of Law
applicable to such Subsidiary.
"Consolidated Total Debt": at any date, the aggregate principal
-----------------------
amount of all Indebtedness of the Borrower and its Subsidiaries at such
date, determined on a consolidated basis in accordance with GAAP and
without duplication.
"Consolidated Working Capital": at any date, the difference of (a)
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Consolidated Current Assets on such date less (b) Consolidated Current
Liabilities on such date.
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"Contractual Obligation": as to any Person, any provision of any
----------------------
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Default": any of the events specified in Section 8, whether or not
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any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"Delayed Draw Commitment Period": the period from and including the
------------------------------
Closing Date to the Delayed Draw Termination Date.
"Delayed Draw Term Loan": as defined in Section 2.1.
----------------------
"Delayed Draw Term Loan Commitment": as to any Lender, the obligation
---------------------------------
of such Lender, if any, to make Delayed Draw Term Loans to the Borrower
hereunder in an aggregate principal amount not to exceed the amount set
forth under the heading "Delayed Draw Term Loan Commitment" opposite such
Lender's name on Annex A, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same
may be changed from time to time pursuant to the terms hereof. The
original aggregate amount of the Delayed Draw Term Loan Commitments is
$100,000,000.
"Delayed Draw Term Loan Facility": as defined in the definition of
-------------------------------
"Facility" in this Section 1.1.
"Delayed Draw Term Loan Lender": each Lender that has a Delayed Draw
-----------------------------
Term Loan Commitment or is the holder a Delayed Draw Term Loan.
"Delayed Draw Term Loan Percentage": as to any Delayed Draw Term Loan
---------------------------------
Lender at any time, the percentage which such Lender's Delayed Draw Term
Loan Commitment then constitutes of the aggregate Delayed Draw Term Loan
Commitments (or at any time after the Delayed Draw Term Loan Commitments
have terminated, the percentage which the aggregate principal amount of
such Lender's Delayed Draw Term Loans then outstanding constitutes of the
aggregate principal amount of the Delayed Draw Term Loans then
outstanding).
"Delayed Draw Termination Date": the date which is twelve months
-----------------------------
after the Closing Date.
"Derivatives Counterparty": as defined in Section 7.6.
------------------------
"Disposition": with respect to any Property, any sale, lease, sale
-----------
and leaseback, assignment, conveyance, transfer or other disposition
thereof; and the terms "Dispose" and "Disposed of" shall have correlative
------- -----------
meanings.
"Dollars" and "$": lawful currency of the United States of America.
------- -
10
"Domestic Subsidiary": any Subsidiary of the Borrower organized under
-------------------
the laws of any jurisdiction within the United States of America.
"Environmental Laws": any and all laws, rules, orders, regulations,
------------------
statutes, ordinances, guidelines, codes, decrees, or other legally
enforceable requirements (including, without limitation, common law) of any
international authority, foreign government, the United States, or any
state, local, municipal or other governmental authority, regulating,
relating to or imposing liability or standards of conduct concerning
protection of the environment or of human health, or employee health and
safety, as has been, is now, or may at any time hereafter be, in effect.
"Environmental Permits": any and all permits, licenses, approvals,
---------------------
registrations, notifications, exemptions and other authorizations required
under any Environmental Law.
"ERISA": the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Reserve Requirements": for any day, the aggregate
---------------------------------
(without duplication) of the maximum rates (expressed as a decimal
fraction) of reserve requirements in effect on such day (including, without
limitation, basic, supplemental, marginal and emergency reserves) under any
regulations of the Board or other Governmental Authority having
jurisdiction with respect thereto dealing with reserve requirements
prescribed for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the Board) maintained by a member bank of
the Federal Reserve System.
"Eurodollar Base Rate": with respect to each day during each Interest
--------------------
Period, the rate per annum determined on the basis of the rate for deposits
in Dollars for a period equal to such Interest Period commencing on the
first day of such Interest Period appearing on Page 3750 of the Telerate
screen as of 11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period. In the event that such rate does not
appear on Page 3750 of the Telerate screen (or otherwise on such screen),
the "Eurodollar Base Rate" for purposes of this definition shall be
--------------------
determined by reference to such other comparable publicly available service
for displaying eurodollar rates as may be selected by the Administrative
Agent.
"Eurodollar Loans": Loans for which the applicable rate of interest is
----------------
based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
---------------
Period, a rate per annum determined for such day in accordance with the
following formula (rounded upward to the nearest 1/100th of 1%):
11
Eurodollar Base Rate
------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Eurodollar Tranche": the collective reference to Eurodollar Loans
------------------
the then current Interest Periods with respect to all of which begin on the
same date and end on the same later date (whether or not such Loans shall
originally have been made on the same day).
"Event of Default": any of the events specified in Section 8,
----------------
provided that any requirement for the giving of notice, the lapse of time,
--------
or both, has been satisfied.
"Excess Cash Flow": for any fiscal year of the Borrower, the
----------------
difference, if any, of (a) the sum, without duplication, of (i)
Consolidated Net Income for such fiscal year, (ii) the amount of all non-
cash charges (including depreciation and amortization) deducted in arriving
at such Consolidated Net Income, (iii) the amount of the decrease, if any,
in Consolidated Working Capital for such fiscal year, (iv) the aggregate
net amount of non-cash loss on the Disposition of Property by the Borrower
and its Subsidiaries during such fiscal year (other than sales of inventory
in the ordinary course of business), to the extent deducted in arriving at
such Consolidated Net Income and (v) the net increase during such fiscal
year (if any) in deferred tax accounts of the Borrower and its Subsidiaries
minus (b) the sum, without duplication, of (i) the amount of all non-cash
-----
credits included in arriving at such Consolidated Net Income, (ii) the
aggregate amount actually paid by the Borrower and its Subsidiaries in cash
or Cash Equivalents during such fiscal year on account of Capital
Expenditures (excluding the principal amount of Indebtedness incurred in
connection with such expenditures and any such expenditures financed with
the proceeds of any Reinvestment Deferred Amount), (iii) the aggregate
amount of all prepayments of Revolving Credit Loans during such fiscal year
to the extent accompanying permanent optional reductions of the Revolving
Credit Commitments and all optional prepayments of the Term Loans and other
Funded Debt (including any prepayment penalties or premiums thereon or in
respect thereof) during such fiscal year, (iv) the aggregate amount of all
regularly scheduled principal payments of Funded Debt (including, without
limitation, the Term Loans) of the Borrower and its Subsidiaries made
during such fiscal year (other than in respect of any revolving credit
facility to the extent there is not an equivalent permanent reduction in
commitments thereunder), (v) the amount of the increase, if any, in
Consolidated Working Capital for such fiscal year, (vi) the aggregate net
amount of non-cash gain on the Disposition of Property by the Borrower and
its Subsidiaries during such fiscal year (other than sales of inventory in
the ordinary course of business), to the extent included in arriving at
such Consolidated Net Income, and (vii) the net decrease during such fiscal
year (if any) in deferred tax accounts of the Borrower and its
Subsidiaries.
"Excluded Foreign Subsidiaries": any Foreign Subsidiary other than a
-----------------------------
Foreign Subsidiary that is and has from its inception been treated as a
pass through entity for United States federal and state income tax purposes
and is already fully subject to United States federal and state income tax
on its operations and investments.
12
"Existing Credit Facilities": the collective reference to (a) the
--------------------------
$50,000,000 Credit Agreement, dated as of May 19, 1999, among the Borrower,
the several lenders from time to time party thereto and Xxxxxxx Xxxxx &
Co., as Arranger, and Xxxxxxx Xxxxx Capital Corporation, as Administrative
Agent, and all Indebtedness outstanding thereunder and (b) the Loan
Agreement, dated as of December 10, 1998, among the Borrower, Mellon US
Leasing and the several lenders from time to time party thereto and all
Indebtedness outstanding thereunder.
"FCC": the Federal Communications Commission, or any other successor
---
agency of the United States Government administering the Communications
Act.
"Facility": each of (a) the Delayed Draw Term Loan Commitments and
--------
the Delayed Draw Term Loans made thereunder (the "Delayed Draw Term Loan
----------------------
Facility"), (b) the Tranche B Term Loan Commitments and the Tranche B Term
--------
Loans made thereunder (the "Tranche B Term Loan Facility"), and (c) the
----------------------------
Revolving Credit Commitments and the extensions of credit made thereunder
(the "Revolving Credit Facility").
-------------------------
"FCC Authorizations": any license, permit, authorization,
------------------
registration, consent or certification issued by the FCC.
"Federal Funds Effective Rate": for any day, the weighted average of
----------------------------
the rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as published on
the next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by
the Reference Lender from three federal funds brokers of recognized
standing selected by it.
"Foreign Subsidiary": any Subsidiary of the Borrower that is not a
------------------
Domestic Subsidiary.
"Funded Debt": with respect to any Person, all Indebtedness of such
-----------
Person of the types described in clauses (a) through (e) of the definition
of "Indebtedness" in this Section.
"Funding Office": the office specified from time to time by the
--------------
Administrative Agent as its funding office by notice to the Borrower and
the Lenders.
"GAAP": generally accepted accounting principles in the United States
----
of America as in effect from time to time, except that for purposes of
Section 7.1, GAAP shall be determined on the basis of such principles in
effect on the date hereof and consistent with those used in the preparation
of the most recent audited financial statements referred to in Section 4.1.
13
"Governmental Authority": any nation or government, any state or
----------------------
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Guarantee and Collateral Agreement": the Guarantee and Collateral
----------------------------------
Agreement to be executed and delivered by the Borrower and each Subsidiary
Guarantor, substantially in the form of Exhibit A, as the same may be
amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
-------------------- -------------------
any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to
induce the creation of which the guaranteeing person has issued a
reimbursement, counterindemnity or similar obligation, in either case
guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends
or other obligations (the "primary obligations") of any other third Person
-------------------
(the "primary obligor") in any manner, whether directly or indirectly,
---------------
including, without limitation, any obligation of the guaranteeing person,
whether or not contingent, (i) to purchase any such primary obligation or
any Property constituting direct or indirect security therefor, (ii) to
advance or supply funds (1) for the purchase or payment of any such primary
obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase Property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided,
--------
however, that the term Guarantee Obligation shall not include endorsements
-------
of instruments for deposit or collection in the ordinary course of
business. The amount of any Guarantee Obligation of any guaranteeing person
shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Guarantee Obligation is made and (b) the maximum amount for which such
guaranteeing person may be liable pursuant to the terms of the instrument
embodying such Guarantee Obligation, unless such primary obligation and the
maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee
Obligation shall be such guaranteeing person's maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in
good faith.
"Hedge Agreements": all interest rate swaps, caps or collar
----------------
agreements or similar arrangements entered into by the Borrower or its
Subsidiaries providing for protection against fluctuations in interest
rates or currency exchange rates or the exchange of nominal interest
obligations, either generally or under specific contingencies.
"Indebtedness": of any Person at any date, without duplication, (a)
------------
all indebtedness of such Person for borrowed money, (b) all obligations of
such Person for
14
the deferred purchase price of Property or services (other than trade
payables incurred in the ordinary course of such Person's business), (c)
all obligations of such Person evidenced by notes, bonds, debentures or
other similar instruments, (d) all indebtedness created or arising under
any conditional sale or other title retention agreement with respect to
Property acquired by such Person (even though the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such Property), (e) all Capital Lease
Obligations of such Person, (f) all obligations of such Person, contingent
or otherwise, as an account party or applicant under acceptance, letter of
credit or similar facilities, (g) all obligations of such Person,
contingent or otherwise, to purchase, redeem, retire or otherwise acquire
for value any Capital Stock of such Person, (h) all Guarantee Obligations
of such Person in respect of obligations of the kind referred to in clauses
(a) through (g) above; (i) all obligations of the kind referred to in
clauses (a) through (h) above secured by (or for which the holder of such
obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on Property (including, without limitation, accounts and
contract rights) owned by such Person, whether or not such Person has
assumed or become liable for the payment of such obligation, (j) for the
purposes of Section 8(e) only, all obligations of such Person in respect of
Hedge Agreements and (k) the liquidation value of any mandatorily
redeemable preferred Capital Stock that (i) has a liquidation preference,
(ii) was issued by such Person or its Subsidiaries and (iii) is held by any
Person other than the issuer thereof and its Wholly Owned Subsidiaries.
"Indemnified Liabilities": as defined in Section 10.5.
-----------------------
"Indemnitee": as defined in Section 10.5.
----------
"Infonet Belgium": Infonet Belgium, S.A., a Belgian company, wholly
---------------
owned by the Borrower.
"Insolvency": with respect to any Multiemployer Plan, the condition
----------
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
---------
"Intellectual Property": the collective reference to all rights,
---------------------
priorities and privileges relating to intellectual property, whether
arising under United States, multinational or foreign laws or otherwise,
including, without limitation, copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark licenses, technology, know-how and
processes, and all rights to xxx at law or in equity for any infringement
or other impairment thereof, including the right to receive all proceeds
and damages therefrom.
"Interest Payment Date": (a) as to any Base Rate Loan, the last day
---------------------
of each March, June, September and December to occur while such Loan is
outstanding and the final maturity date of such Loan, (b) as to any
Eurodollar Loan having an Interest Period
15
of three months or shorter, the last day of such Interest Period, (c) as to
any Eurodollar Loan having an Interest Period longer than three months,
each day that is three months, or a whole multiple thereof, after the first
day of such Interest Period and the last day of such Interest Period and
(d) as to any Eurodollar Loan, the date of any repayment or prepayment made
in respect thereof.
"Interest Period": as to any Eurodollar Loan, (a) initially, the
---------------
period commencing on the borrowing or conversion date, as the case may be,
with respect to such Eurodollar Loan and ending one, two, three, six or (if
available to all relevant Lenders) twelve months thereafter, as selected by
the Borrower in its notice of borrowing or notice of conversion, as the
case may be, given with respect thereto; and (b) thereafter, each period
commencing on the last day of the next preceding Interest Period applicable
to such Eurodollar Loan and ending one, two, three, six or (if available to
all relevant Lenders) twelve months thereafter, as selected by the Borrower
by irrevocable notice to the Administrative Agent not less than three
Business Days prior to the last day of the then current Interest Period
with respect thereto; provided that, all of the foregoing provisions
--------
relating to Interest Periods are subject to the following:
(i) if any Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall be extended to
the next succeeding Business Day unless the result of such extension
would be to carry such Interest Period into another calendar month in
which event such Interest Period shall end on the immediately
preceding Business Day;
(ii) any Interest Period that would otherwise extend
beyond the Revolving Credit Termination Date or beyond the date final
payment is due on such Loan, as the case may be, shall end on the
Revolving Credit Termination Date or such due date, as applicable; and
(iii) any Interest Period that 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 the calendar
month at the end of such Interest Period.
"Investments": as defined in Section 7.8.
-----------
"IPO": the issuance by the Borrower of shares of its common stock to
---
the public pursuant to a bona fide underwritten public offering, pursuant
to which the Borrower receives gross proceeds of at least $250,000,000.
"Issuing Lender": The Bank of Nova Scotia, or any other Revolving
--------------
Credit Lender from time to time designated by the Borrower as an Issuing
Lender with the consent of such Revolving Credit Lender and the
Administrative Agent (which consent of the Administrative Agent shall not
be unreasonably withheld).
16
"L/C Commitment": $10,000,000.
--------------
"L/C Fee Payment Date": the last day of each March, June, September
--------------------
and December and the last day of the Revolving Credit Commitment Period.
"L/C Obligations": at any time, an amount equal to the sum of (a) the
---------------
aggregate then undrawn and unexpired amount of the then outstanding Letters
of Credit and (b) the aggregate amount of drawings under Letters of Credit
that have not then been reimbursed pursuant to Section 3.5.
"L/C Participants": with respect to any Letter of Credit, the
----------------
collective reference to all the Revolving Credit Lenders other than the
Issuing Lender that issued such letter of Credit.
"Lenders": as defined in the preamble hereto.
-------
"Letters of Credit": as defined in Section 3.1(a).
-----------------
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
----
arrangement, encumbrance, lien (statutory or other), charge or other
security interest or any preference, priority or other security agreement
or preferential arrangement of any kind or nature whatsoever (including,
without limitation, any conditional sale or other title retention agreement
and any capital lease having substantially the same economic effect as any
of the foregoing).
"Loan Documents": this Agreement, the Security Documents and the
--------------
Notes.
"Loan Parties": the Borrower and each Subsidiary of the Borrower
------------
that is a party to a Loan Document.
"Majority Facility Lenders": with respect to any Facility, the
-------------------------
holders of more than 50% of the aggregate unpaid principal amount of the
Term Loans or the Total Revolving Extensions of Credit, as the case may be,
outstanding under such Facility (or, (a) in the case of the Revolving
Credit Facility, prior to any termination of the Revolving Credit
Commitments, the holders of more than 50% of the Total Revolving Credit
Commitments, and (b) in the case of the Delayed Draw Term Loan Facility,
prior to any termination of the Delayed Draw Term Loan Commitments, the
holders of more than 50% of the sum of the Delayed Draw Term Loans then
outstanding plus the Available Delayed Draw Term Loan Commitments).
"Majority Revolving Credit Facility Lenders": the Majority Facility
------------------------------------------
Lenders in respect of the Revolving Credit Facility.
"Material Adverse Effect": a material adverse effect on (a) the
-----------------------
business, assets, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries taken as a whole or (b) the validity or
enforceability of this Agreement or any of the other Loan
17
Documents or the rights or remedies of the Agents or the Lenders hereunder
or thereunder.
"Materials of Environmental Concern": any gasoline or petroleum
----------------------------------
(including crude oil or any fraction thereof) or petroleum products,
polychlorinated biphenyls, urea-formaldehyde insulation, asbestos,
pollutants, contaminants, radioactivity, and any other substances or forces
of any kind, whether or not any such substance or force is defined as
hazardous or toxic under any Environmental Law, that is regulated pursuant
to or could give rise to liability under any Environmental Law.
"Maximum Rate": as defined in Section 10.18.
------------
"Multiemployer Plan": a Plan that is a multiemployer plan as defined
------------------
in Section 4001(a)(3) of ERISA.
"Net Cash Proceeds": (a) in connection with any Asset Sale or any
-----------------
Recovery Event, the proceeds thereof in the form of cash and Cash
Equivalents (including any such proceeds received by way of deferred
payment of principal pursuant to a note or installment receivable or
purchase price adjustment receivable or otherwise, but only as and when
received) of such Asset Sale or Recovery Event, net of attorneys' fees,
accountants' fees, investment banking fees, amounts required to be applied
to the repayment of Indebtedness secured by a Lien expressly permitted
hereunder on any asset which is the subject of such Asset Sale or Recovery
Event (other than any Lien pursuant to a Security Document) and other
customary fees and expenses actually incurred in connection therewith and
net of taxes paid or reasonably estimated to be payable as a result thereof
(after taking into account any available tax credits or deductions and any
tax sharing arrangements) and (b) in connection with any issuance or sale
of equity securities by the Borrower or debt securities or instruments or
the incurrence of loans, the cash proceeds received from such issuance or
incurrence, net of attorneys' fees, investment banking fees, accountants'
fees, underwriting discounts and commissions and other customary fees and
expenses actually incurred in connection therewith.
"Non-Excluded Taxes": as defined in Section 2.18(a).
------------------
"Non-U.S. Lender": as defined in Section 2.18(d).
---------------
"Note": any promissory note evidencing any Loan.
----
"NTC": Networks Telephony Corporation, of which the Borrower owns
---
approximately 45% of the capital stock on a fully diluted basis as of the
Closing Date.
"Obligations": the unpaid principal of and interest on (including,
-----------
without limitation, interest accruing after the maturity of the Loans and
Reimbursement Obligations and interest accruing after the filing of any
petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the
18
Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Loans, the Reimbursement Obligations and
all other obligations and liabilities of the Borrower to the Administrative
Agent or to any Lender (or, in the case of Specified Hedge Agreements, any
affiliate of any Lender), whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, this Agreement, any
other Loan Document, any Specified Hedge Agreement or any other document
made, delivered or given in connection herewith or therewith, whether on
account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees,
charges and disbursements of counsel to the Administrative Agent or to any
Lender that are required to be paid by the Borrower pursuant hereto) or
otherwise; provided, that (i) obligations of the Borrower or any Subsidiary
--------
under any Specified Hedge Agreement shall be secured and guaranteed
pursuant to the Security Documents only to the extent that, and for so long
as, the other Obligations are so secured and guaranteed and (ii) any
release of Collateral or Guarantors effected in the manner permitted by
this Agreement shall not require the consent of holders of obligations
under Specified Hedge Agreements..
"Original Investors": the collective reference to the six holders of
------------------
the Borrower's Class A common stock as of the Closing Date.
"Other Agreement": as defined in Section 10.18.
---------------
"Other Taxes": any and all present or future stamp or documentary
-----------
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant": as defined in Section 10.6(b).
-----------
"Payment Office": the office specified from time to time by the
--------------
Administrative Agent as its payment office by notice to the Borrower and
the Lenders.
"PBGC": the Pension Benefit Guaranty Corporation established pursuant
----
to Subtitle A of Title IV of ERISA (or any successor).
"Person": an individual, partnership, corporation, limited liability
------
company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"Plan": at a particular time, any employee benefit plan that is
----
covered by ERISA and in respect of which the Borrower or a Commonly
Controlled Entity is (or, if such plan were terminated at such time, would
under Section 4069 of ERISA be deemed to be) an "employer" as defined in
Section 3(5) of ERISA.
19
"Pricing Grid": the pricing grid attached hereto as Annex A-1.
------------
"Projections": as defined in Section 6.2(c).
-----------
"Property": any right or interest in or to property of any kind
--------
whatsoever, whether real, personal or mixed and whether tangible or
intangible, including, without limitation, Capital Stock.
"Recovery Event": the receipt by the Borrower or any Subsidiary of
--------------
any settlement of or payment in respect of any property or casualty
insurance claim or any condemnation proceeding relating to any asset of the
Borrower or any of its Subsidiaries.
"Reference Lender": The Bank of Nova Scotia.
----------------
"Register": as defined in Section 10.6(d).
--------
"Regulation U": Regulation U of the Board as in effect from time to
------------
time.
"Reimbursement Obligation": the obligation of the Borrower to
------------------------
reimburse each Issuing Lender pursuant to Section 3.5 for amounts drawn
under Letters of Credit issued by such Issuing Lender.
"Reinvestment Deferred Amount": with respect to any Reinvestment
----------------------------
Event, the aggregate Net Cash Proceeds received by the Borrower or any of
its Subsidiaries in connection therewith that are not applied to prepay the
Term Loans or reduce the Revolving Credit Commitments pursuant to Section
2.10(c) as a result of the delivery of a Reinvestment Notice.
"Reinvestment Event": any Asset Sale or Recovery Event in respect of
------------------
which the Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice": a written notice executed by a Responsible
-------------------
Officer stating that no Default or Event of Default has occurred and is
continuing and that the Borrower (directly or indirectly through a
Subsidiary) intends and expects to use all or a specified portion of the
Net Cash Proceeds of an Asset Sale or Recovery Event to acquire assets
useful in its or such Subsidiary's business.
"Reinvestment Prepayment Amount": with respect to any Reinvestment
------------------------------
Event, the Reinvestment Deferred Amount relating thereto less any amount
----
expended prior to the relevant Reinvestment Prepayment Date to acquire
assets useful in the Borrower's or the applicable Subsidiary's business.
"Reinvestment Prepayment Date": with respect to any Reinvestment
----------------------------
Event, the earlier of (a) the date occurring 12 months after such
Reinvestment Event and (b) the date on which the Borrower shall have
determined not to, or shall have otherwise ceased to,
20
acquire assets useful in the Borrower's or the applicable Subsidiary's
business with all or any portion of the relevant Reinvestment Deferred
Amount.
"Related Fund": with respect to any Lender that is a fund that
------------
invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Reorganization": with respect to any Multiemployer Plan, the
--------------
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c) of
----------------
ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg. (S) 4043.
"Required Lenders": at any time, the holders of more than 50% of (a)
----------------
until the Closing Date, the Commitments then in effect and (b) thereafter,
the sum of (i) the aggregate unpaid principal amount of the Tranche B Term
Loans then outstanding, (ii) the aggregate undrawn amount of the Delayed
Draw Term Loan Commitments then in effect or, if the Delayed Draw Term Loan
Commitments have been terminated, the aggregate unpaid principal amount of
the Delayed Draw Term Loans then outstanding and (iii) the Total Revolving
Credit Commitments then in effect or, if the Revolving Credit Commitments
have been terminated, the aggregate principal amount of Total Revolving
Extensions of Credit then outstanding.
"Required Prepayment Lenders": the Majority Facility Lenders in
---------------------------
respect of each Facility.
"Requirement of Law": as to any Person, the Certificate of
------------------
Incorporation and By-Laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its Property or to
which such Person or any of its Property is subject.
"Responsible Officer": the chief executive officer, president, any
-------------------
vice president or chief financial officer of the Borrower, but in any
event, with respect to financial matters, the chief financial officer or
treasurer of the Borrower.
"Restricted Payments": as defined in Section 7.6.
-------------------
"Revolving Credit Commitment": as to any Lender, the obligation of
---------------------------
such Lender, if any, to make Revolving Credit Loans and participate in
Letters of Credit in an aggregate principal amount not to exceed the amount
set forth under the heading "Revolving Credit Commitment" opposite such
Lender's name on Annex A, or, as the case may be, in the Assignment and
Acceptance pursuant to which such Lender became a party hereto, as the same
may be changed from time to time pursuant to the terms hereof.
21
The original aggregate amount of the Total Revolving Credit Commitments is
$100,000,000.
"Revolving Credit Commitment Period": the period from and including
----------------------------------
the Closing Date to the Revolving Credit Termination Date.
"Revolving Credit Facility": as defined in the definition of
-------------------------
"Facility" in this Section 1.1.
"Revolving Credit Lender": each Lender that has a Revolving Credit
-----------------------
Commitment or that is the holder of Revolving Credit Loans.
"Revolving Credit Loans": as defined in Section 2.4.
----------------------
"Revolving Credit Percentage": as to any Revolving Credit Lender at
---------------------------
any time, the percentage which such Lender's Revolving Credit Commitment
then constitutes of the Total Revolving Credit Commitments (or, at any time
after the Revolving Credit Commitments shall have expired or terminated,
the percentage which the aggregate principal or face amount of such
Lender's Revolving Extensions of Credit then outstanding constitutes of the
amount of the principal or face amount of Total Revolving Extensions of
Credit then outstanding).
"Revolving Credit Termination Date": the date which is six years
---------------------------------
after the Closing Date.
"Revolving Extensions of Credit": as to any Revolving Credit Lender
------------------------------
at any time, an amount equal to the sum of (a) the aggregate principal
amount of all Revolving Credit Loans made by such Lender then outstanding
and (b) such Lender's Revolving Credit Percentage of the L/C Obligations
then outstanding.
"SEC": the Securities and Exchange Commission (or successors thereto
---
or an analogous Governmental Authority).
"Security Documents": the collective reference to the Guarantee and
------------------
Collateral Agreement and all other security documents hereafter delivered
to the Administrative Agent granting a Lien on any Property of any Person
to secure the obligations and liabilities of any Loan Party under any Loan
Document.
"Single Employer Plan": any Plan that is covered by Title IV of
--------------------
ERISA, but which is not a Multiemployer Plan.
"Solvent": with respect to any Person, as of any date of
-------
determination, (a) the amount of the "present fair saleable value" of the
assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and
22
state laws governing determinations of the insolvency of debtors, (b) the
present fair saleable value of the assets of such Person will, as of such
date, be greater than the amount that will be required to pay the liability
of such Person on its debts as such debts become absolute and matured, (c)
such Person will not have, as of such date, an unreasonably small amount of
capital with which to conduct its business, and (d) such Person will be
able to pay its debts as they mature. For purposes of this definition, (i)
"debt" means liability on a "claim", and (ii) "claim" means any (x) right
to payment, whether or not such a right is reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed,
legal, equitable, secured or unsecured or (y) right to an equitable remedy
for breach of performance if such breach gives rise to a right to payment,
whether or not such right to an equitable remedy is reduced to judgment,
fixed, contingent, matured or unmatured, disputed, undisputed, secured or
unsecured.
"Specified Collateral": collectively, (a) all Capital Stock of all
--------------------
Domestic Subsidiaries and all Foreign Subsidiaries other than Excluded
Foreign Subsidiaries, (b) 65% of the Capital Stock of all Excluded Foreign
Subsidiaries owned directly by the Borrower or any Subsidiary other than an
Excluded Foreign Subsidiary, (c) substantially all tangible personal
property located in the United States, and substantially all intangible
property, of the Borrower and the Domestic Subsidiaries (other than any
such personal property in respect of which the Administrative Agent
determines that the cost of obtaining a perfected first priority (subject
to Liens permitted hereunder) security interest therein would be
disproportionate to the value of such security interest to the Lenders)
and (d) each parcel of real property owned in fee simple by the Borrower or
any Domestic Subsidiary having a book value or market value in excess of
$1,000,000; provided, that Specified Collateral shall exclude (i) the
--------
Borrower's new headquarters building and the furniture and fixtures therein
and thereto and the Borrower's data center facility in Maryland, (ii) the
Capital Stock and assets of NTC and (iii) the Capital Stock and assets of
Infonet Belgium.
"Specified Hedge Agreement": any Hedge Agreement (a) entered into by
-------------------------
(i) the Borrower or any of its Subsidiaries and (ii) any Lender or any
Affiliate thereof or any Person that was a Lender or its Affiliate at the
time of entry thereto, as counterparty and (b) that has been designated by
such Lender and the Borrower, by notice to the Administrative Agent not
later than 90 days after the execution and delivery by the Borrower or its
Subsidiary thereof, as a Specified Hedge Agreement. The designation of any
Hedge Agreement as a Specified Hedge shall not create in favor of the
Lender or Affiliate thereof that is a party thereto any rights in
connection with the management or release of any Collateral or of the
obligations of any Subsidiary Guarantor under the Subsidiary Guarantee.
"Subsidiary": as to any Person, a corporation, partnership, limited
----------
liability company or other entity of which shares of stock or other
ownership interests having ordinary voting power (other than stock or such
other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board
23
of directors or other managers of such corporation, partnership or other
entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or
both, by such Person. Unless otherwise qualified, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a
Subsidiary or Subsidiaries of the Borrower, and shall exclude NTC and
Osiware International S.A., unless otherwise expressly indicated.
"Subsidiary Guarantor": each Subsidiary of the Borrower other than
--------------------
any Excluded Foreign Subsidiary.
"Term Loan Facilities": the collective reference to the Delayed Draw
--------------------
Term Loan Facility and the Tranche B Term Loan Facility.
"Term Loan Lenders": the collective reference to the Delayed Draw
-----------------
Term Loan Lenders and the Tranche B Term Loan Lenders.
"Term Loans": the collective reference to the Delayed Draw Term Loans
----------
and Tranche B Term Loans.
"Total Revolving Credit Commitments": at any time, the aggregate
----------------------------------
amount of the Revolving Credit Commitments then in effect.
"Total Revolving Extensions of Credit": at any time, the aggregate
------------------------------------
amount of the Revolving Extensions of Credit of the Revolving Credit
Lenders outstanding at such time.
"Tranche B Prepayment Amount" as defined in Section 2.16(d).
---------------------------
"Tranche B Term Loan": as defined in Section 2.1.
-------------------
"Tranche B Term Loan Commitment": as to Tranche B Term Loan Lender,
------------------------------
the obligation of such Lender, if any, to make a Tranche B Term Loan to the
Borrower hereunder in a principal amount not to exceed the amount set forth
under the heading "Tranche B Term Loan Commitment" opposite such Lender's
name on Annex A, or, as the case may be, in the Assignment and Acceptance
pursuant to which such Lender became a party hereto, as the same may be
changed from time to time pursuant to the terms hereof. The original
aggregate amount of the Tranche B Term Loan Commitments is $50,000,000.
"Tranche B Term Loan Facility": as defined in the definition of
----------------------------
"Facility" in this Section 1.1.
"Tranche B Term Loan Lender": each Lender that has a Tranche B Term
--------------------------
Loan Commitment or is the holder of a Tranche B Term Loan.
24
"Tranche B Term Loan Percentage": as to any Lender at any time, the
------------------------------
percentage which such Lender's Tranche B Term Loan Commitment then
constitutes of the aggregate Tranche B Term Loan Commitments (or, at any
time after the Closing Date, the percentage which the aggregate principal
amount of such Lender's Tranche B Term Loan then outstanding constitutes of
the aggregate principal amount of the Tranche B Term Loans then
outstanding).
"Transferee": as defined in Section 10.15.
----------
"Type": as to any Loan, its nature as a Base Rate Loan or a
----
Eurodollar Loan.
"Wholly Owned Subsidiary": as to any Person, any other Person all of
-----------------------
the Capital Stock of which (other than directors' qualifying shares
required by law) is owned by such Person directly and/or through other
Wholly Owned Subsidiaries.
"Wholly Owned Subsidiary Guarantor": any Subsidiary Guarantor that is
---------------------------------
a Wholly Owned Subsidiary of the Borrower.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
-----------------------------
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b As used herein and in the other Loan Documents, and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP.
(c The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Term Loan Commitments. Subject to the terms and conditions
---------------------
hereof, (a) the Delayed Draw Term Loan Lenders severally agree to make term
loans (each, a "Delayed Draw Term Loan") to the Borrower during the Delayed Draw
----------------------
Commitment Period in an aggregate principal amount for each Delayed Draw Term
Loan Lender not to exceed the amount of the Delayed Draw Term Loan Commitment
of such Lender and (b) the Tranche B Term Loan Lenders severally agree to make
term loans (each, a "Tranche B Term Loan") to the Borrower on the Closing Date
-------------------
in an amount for each Tranche B Term Loan Lender not to exceed the amount
25
of the Tranche B Term Loan Commitment of such Lender. The Term Loans may from
time to time be Eurodollar Loans or Base Rate Loans, as determined by the
Borrower and notified to the Administrative Agent in accordance with Sections
2.2 and 2.11.
2.2 Procedure for Term Loan Borrowing. (a) The Borrower may borrow
---------------------------------
under the Delayed Draw Term Loan Commitments on any Business Day during the
Delayed Draw Commitment Period, provided that the Borrower shall give the
--------
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 1:00 pm, New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(b) one Business Day prior to the requested Borrowing Date, in the case of Base
Rate Loans), specifying (i) the amount and Type of Delayed Draw Term Loans to be
borrowed, (ii) the requested Borrowing Date and (iii) in the case of Eurodollar
Loans, the length of the initial Interest Period therefor. Each borrowing of
Delayed Draw Term Loans under the Delayed Draw Term Loan Commitments shall be in
an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a whole
multiple thereof (or, if the then aggregate Available Delayed Draw Term Loan
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Delayed Draw Term Loan Lender thereof. Each
Delayed Draw Term Loan Lender will make its Delayed Draw Term Percentage of the
amount of each borrowing of Delayed Draw Term Loans available to the
Administrative Agent for the account of the Borrower at the Funding Office prior
to 12:00 Noon, New York City time, on the Borrowing Date requested by the
Borrower in funds immediately available to the Administrative Agent. Such
borrowings will then be made available to the Borrower by the Administrative
Agent promptly in like funds as received by the Administrative Agent.
(b The Borrower shall give the Administrative Agent irrevocable
notice (which notice must be received by the Administrative Agent prior to 1:00
pm, New York City time, (a) three Business Days prior to the anticipated Closing
Date, in the case of Eurodollar Loans, or (b) one Business Day prior to the
anticipated Closing Date, in the case of Base Rate Loans), requesting that the
Tranche B Term Loan Lenders make the Tranche B Term Loans on the Closing Date
and specifying (i) the Type of Tranche B Term Loans to be borrowed and (ii) in
the case of Eurodollar Loans, the length of the initial Interest Period
therefor. Upon receipt of such notice the Administrative Agent shall promptly
notify each Tranche B Term Loan Lender thereof. Not later than 12:00 Noon, New
York City time, on the Closing Date each Tranche B Term Loan Lender shall make
available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to the Tranche B Term Loan or Tranche B Term
Loans to be made by such Lender. The Administrative Agent shall make available
to the Borrower promptly the aggregate of the amounts made available to the
Administrative Agent by the Tranche B Term Loan Lenders, in like funds as
received by the Administrative Agent.
2.3 Repayment of Term Loans. (a) The Delayed Draw Term Loans of
-----------------------
each Delayed Draw Lender shall mature in 20 consecutive quarterly installments,
commencing on September 30, 2001, each of which shall be in an amount equal to
such Lender's Delayed Draw Term Loan Percentage multiplied by the amounts set
forth below opposite such installment:
26
Year Principal Amount
---- ------------------
September 30, 2001 $1,125,000
December 31, 2001 $1,125,000
March 31, 2002 $1,125,000
June 30, 2002 $1,125,000
September 30, 2002 $2,375,000
December 31, 2002 $2,375,000
March 31, 2003 $2,375,000
June 30, 2003 $2,375,000
September 30, 2003 $9,875,000
December 31, 2003 $9,875,000
March 31, 2004 $9,875,000
June 30, 2004 $9,875,000
September 30, 2004 $2,375,000
December 31, 2004 $2,375,000
March 31, 2005 $2,375,000
June 30, 2005 $2,375,000
September 30, 2005 $9,250,000
December 31, 2005 $9,250,000
March 31, 2006 $9,250,000
June 30, 2006 $9,250,000
; provided, that to the extent that less than $100,000,000 aggregate principal
--------
amount of delayed Draw Term Loans are borrowed, each of the amounts set forth
above shall be proportionately reduced.
(b The Tranche B Term Loan of each Tranche B Lender shall mature in
28 consecutive quarterly installments, commencing on September 30, 1999, each of
which shall be in an amount equal to such Lender's Tranche B Term Loan
Percentage multiplied by the amount set forth below opposite such installment:
Installment Principal Amount
----------- ----------------
September 30, 1999 $125,000
December 31, 1999 $125,000
March 31, 2000 $125,000
June 30, 2000 $125,000
September 30, 2000 $125,000
December 31, 2000 $125,000
March 31, 2001 $125,000
June 30, 2001 $125,000
September 30, 2001 $125,000
December 31, 2001 $125,000
March 31, 2002 $125,000
27
June 30, 2002 $ 125,000
September 30, 2002 $ 125,000
December 31, 2002 $ 125,000
March 31, 2003 $ 125,000
June 30, 2003 $ 125,000
September 30, 2003 $ 125,000
December 31, 2003 $ 125,000
March 31, 2004 $ 125,000
June 30, 2004 $ 125,000
September 30, 2004 $ 125,000
December 31, 2004 $ 125,000
March 31, 2005 $ 125,000
June 30, 2005 $ 125,000
September 30, 2005 $11,750,000
December 31, 2005 $11,750,000
March 31, 2006 $11,750,000
June 30, 2006 $11,750,000
2.4 Revolving Credit Commitments. (a) Subject to the terms and
----------------------------
conditions hereof, the Revolving Credit Lenders severally agree to make
revolving credit loans ("Revolving Credit Loans") to the Borrower from time to
----------------------
time during the Revolving Credit Commitment Period in an aggregate principal
amount at any one time outstanding for each Revolving Credit Lender which, when
added to such Lender's Revolving Credit Percentage of the L/C Obligations then
outstanding, does not exceed the amount of such Lender's Revolving Credit
Commitment. During the Revolving Credit Commitment Period the Borrower may use
the Revolving Credit Commitments by borrowing, prepaying the Revolving Credit
Loans in whole or in part, and reborrowing, all in accordance with the terms and
conditions hereof. The Revolving Credit Loans may from time to time be
Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified
to the Administrative Agent in accordance with Sections 2.5 and 2.11, provided
--------
that no Revolving Credit Loan shall be made as a Eurodollar Loan after the day
that is one month prior to the Scheduled Revolving Credit Termination Date.
(b The Borrower shall repay all outstanding Revolving Credit Loans
on the Revolving Credit Termination Date.
2.5 Procedure for Revolving Credit Borrowing. The Borrower may
----------------------------------------
borrow under the Revolving Credit Commitments on any Business Day during the
Revolving Credit Commitment Period, provided that the Borrower shall give the
--------
Administrative Agent irrevocable notice (which notice must be received by the
Administrative Agent prior to 1:00 pm, New York City time, (a) three Business
Days prior to the requested Borrowing Date, in the case of Eurodollar Loans, or
(b) one Business Day prior to the requested Borrowing Date, in the case of
28
Base Rate Loans), specifying (i) the amount and Type of Revolving Credit Loans
to be borrowed, (ii) the requested Borrowing Date and (iii) in the case of
Eurodollar Loans, the length of the initial Interest Period therefor. Each
borrowing of Revolving Credit Loans under the Revolving Credit Commitments shall
be in an amount equal to (x) in the case of Base Rate Loans, $1,000,000 or a
whole multiple thereof (or, if the then aggregate Available Revolving Credit
Commitments are less than $1,000,000, such lesser amount) and (y) in the case of
Eurodollar Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof. Upon receipt of any such notice from the Borrower, the Administrative
Agent shall promptly notify each Revolving Credit Lender thereof. Each Revolving
Credit Lender will make its Revolving Credit Percentage of the amount of each
borrowing of Revolving Credit Loans available to the Administrative Agent for
the account of the Borrower at the Funding Office prior to 12:00 Noon, New York
City time, on the Borrowing Date requested by the Borrower in funds immediately
available to the Administrative Agent. Such borrowing will then be made
available to the Borrower promptly by the Administrative Agent in like funds as
received by the Administrative Agent.
2.6 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
------------------------------------
unconditionally promises to pay to the Administrative Agent for the account of
the appropriate Revolving Credit Lender or Term Loan Lender, as the case may be,
(i) the then unpaid principal amount of each Revolving Credit Loan of such
Revolving Credit Lender on the Revolving Credit Termination Date (or on such
earlier date on which the Loans become due and payable pursuant to Section 8),
and (ii) the principal amount of each Term Loan of such Term Loan Lender in
installments according to the amortization schedule set forth in Section 2.3 (or
on such earlier date on which the Loans become due and payable pursuant to
Section 8). The Borrower hereby further agrees to pay interest on the unpaid
principal amount of the Loans from time to time outstanding from the date hereof
until payment in full thereof at the rates per annum, and on the dates, set
forth in Section 2.13.
(b Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrower to such Lender
resulting from each Loan of such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
under this Agreement.
(c The Administrative Agent, on behalf of the Borrower, shall
maintain the Register pursuant to Section 10.6(e), and a subaccount therein for
each Lender, in which shall be recorded (i) the amount of each Loan made
hereunder and any Note evidencing such Loan, the Type of such Loan and each
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) both the amount of any sum received by the Administrative
Agent hereunder from the Borrower and each Lender's share thereof.
(d The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.6(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Borrower therein recorded; provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain the
29
Register or any such account, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay (with applicable interest) the
Loans made to the Borrower by such Lender in accordance with the terms of this
Agreement.
(e The Borrower agrees that, upon the request to the Administrative
Agent by any Lender, the Borrower will execute and deliver to such Lender a
promissory note of the Borrower evidencing any Term Loans or Revolving Credit
Loans, as the case may be, of such Lender, substantially in the forms of Exhibit
D-1 or D-2, respectively, with appropriate insertions as to date and principal
amount.
2.7 Commitment Fees, etc. (a) The Borrower agrees to pay to the
---------------------
Administrative Agent for the account of each Revolving Credit Lender a
commitment fee for the period from and including the date hereof to and
including the Revolving Credit Termination Date, computed at the Commitment Fee
Rate on the average daily amount of the Available Revolving Credit Commitment of
such Lender during the period for which payment is made, payable quarterly in
arrears on the last day of each March, June, September and December and on the
Revolving Credit Termination Date, commencing on the first of such dates to
occur after the date hereof.
(b The Borrower agrees to pay to the Administrative Agent for the
account of each Delayed Draw Term Loan Lender a commitment fee for the period
from and including the date hereof to and including the Delayed Draw Termination
Date, computed at the Commitment Fee Rate on the average daily amount of the
Available Delayed Draw Term Loan Commitment of such Lender during the period for
which payment is made, payable quarterly in arrears on the last day of each
March, June, September and December and on the Delayed Draw Termination Date,
commencing on the first of such dates to occur after the date hereof.
2.8 Termination or Reduction of Commitments. (a) The Borrower shall
---------------------------------------
have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Revolving Credit Commitments or, from
time to time, to reduce the aggregate amount of the Revolving Credit
Commitments; provided that no such termination or reduction of Revolving Credit
--------
Commitments shall be permitted if, after giving effect thereto and to any
prepayments of the Revolving Credit Loans made on the effective date thereof,
the Total Revolving Extensions of Credit would exceed the Total Revolving Credit
Commitments. Any such reduction shall be in an amount equal to $1,000,000, or a
whole multiple thereof (or, if the Revolving Credit Commitments are less than
$1,000,000, such lesser amount), and shall reduce permanently the Revolving
Credit Commitments then in effect.
(b The Borrower shall have the right, upon not less than three
Business Days' notice to the Administrative Agent, to terminate the Delayed Draw
Term Loan Commitments, or, from time to time, reduce the aggregate amount of
Delayed Draw Term Loan Commitments. Any such reduction shall be in an amount
equal to $1,000,000, or a whole multiple thereof (or, if the Delayed Draw Term
Loan Commitments are less than $1,000,000, such lesser amount), and shall reduce
permanently the Delayed Draw Term Loan Commitments then in effect.
30
2.9 Optional Prepayments. The Borrower may at any time and from time
--------------------
to time prepay the Loans, in whole or in part, without premium or penalty
(except as otherwise provided herein), upon irrevocable notice delivered to the
Administrative Agent at least three Business Days prior thereto in the case of
Eurodollar Loans and at least one Business Day prior thereto in the case of Base
Rate Loans, which notice shall specify the date and amount of prepayment and
whether the prepayment is of Eurodollar Loans or Base Rate Loans; provided, that
--------
if a Eurodollar Loan is prepaid on any day other than the last day of the
Interest Period applicable thereto, the Borrower shall also pay any amounts
owing pursuant to Section 2.19. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof. If any
such notice is given, the amount specified in such notice shall be due and
payable on the date specified therein, together with (except in the case of
Revolving Credit Loans that are Base Rate Loans) accrued interest to such date
on the amount prepaid. Partial prepayments of Loans shall be in an aggregate
principal amount of $1,000,000 or a whole multiple thereof.
2.10 Mandatory Prepayments and Commitment Reductions. (a) Unless
-----------------------------------------------
the Required Prepayment Lenders shall otherwise agree, subject to Section
2.16(d), if any Capital Stock shall be issued by the Borrower or any of its
Subsidiaries, on the date of such issuance an amount equal to 50% (or, if the
Consolidated Leverage Ratio, determined as at the end of the most recent period
of four consecutive fiscal quarters ended prior to the required date of
prepayment for which the relevant financial information is available on a pro
---
forma basis as if such issuance had occurred on the first day of such period, is
-----
less than 4.0 to 1.0, 25%) of the Net Cash Proceeds thereof shall be applied
toward the prepayment of the Term Loans, as set forth in Section 2.10(e);
provided that the first $750,000,000 of Net Cash Proceeds received by the
--------
Borrower of an IPO of Capital Stock of the Borrower shall be excluded from the
foregoing requirement.
(b Unless the Required Prepayment Lenders shall otherwise agree,
subject to Section 2.16(d), if any Indebtedness (in respect of which the
Borrower or any Subsidiary received Net Cash Proceeds) shall be incurred by the
Borrower or any of its Subsidiaries (excluding any Indebtedness incurred in
accordance with Section 7.2), an amount equal to 100% of the Net Cash Proceeds
thereof shall be applied on the date of such incurrence toward the prepayment of
the Term Loans and/or the reduction of the Revolving Credit Commitments, as set
forth in Section 2.10(e); provided that the first $100,000,000 of Net Cash
--------
Proceeds of such Indebtedness constituting senior subordinated Indebtedness (if
such Indebtedness is permitted to be incurred hereunder) shall be excluded from
the foregoing requirement.
(c Unless the Required Prepayment Lenders shall otherwise agree,
subject to Section 2.16(d), if on any date the Borrower or any of its
Subsidiaries shall receive Net Cash Proceeds from any Asset Sale or Recovery
Event then, unless a Reinvestment Notice shall be delivered in respect thereof,
on such date the Term Loans shall be prepaid, and/or the Revolving Credit
Commitments shall be reduced, by an amount equal to 100% of the amount of such
Net Cash Proceeds, as set forth in Section 2.10(e); provided, that,
--------
notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset
Sales and Recovery Events that may be excluded from the foregoing requirement
pursuant to a Reinvestment Notice shall not exceed $10,000,000 in any fiscal
year of the Borrower and (ii) on each Reinvestment Prepayment Date the Term
Loans
31
shall be prepaid, and/or the Revolving Credit Commitments shall be
reduced, by an amount equal to the Reinvestment Prepayment Amount with respect
to the relevant Reinvestment Event, as set forth in Section 2.10(e).
(d) Unless the Required Prepayment Lenders shall otherwise agree,
subject to Section 2.16(d), if, for any fiscal year of the Borrower commencing
with the fiscal year beginning in 2002, there shall be Excess Cash Flow, on the
relevant Excess Cash Flow Application Date the Term Loans shall be prepaid by an
amount equal to 50% (or, if the Consolidated Leverage Ratio as of the last day
of such fiscal year is less than 4.0 to 1.0, 25%) of such Excess Cash Flow, as
set forth in Section 2.10(e). Each such prepayment and commitment reduction
shall be made on a date (an "Excess Cash Flow Application Date") no later than
---------------------------------
five days after the earlier of (i) the date on which the financial statements of
the Borrower referred to in Section 6.1(a), for the fiscal year with respect to
which such prepayment is made, are required to be delivered to the Lenders and
(ii) the date such financial statements are actually delivered.
(e) Subject to Section 2.16, amounts to be applied in connection with
prepayments and Commitment reductions made pursuant to this Section shall be
applied, first, to the prepayment of the Term Loans and, second, if required
----- ------
above and after the Term Loans are paid in full, to reduce permanently the
Revolving Credit Commitments. Any such reduction of the Revolving Credit
Commitments shall be accompanied by prepayment of the Revolving Credit Loans to
the extent, if any, that the Total Revolving Extensions of Credit exceed the
amount of the Total Revolving Credit Commitments as so reduced, provided that if
--------
the aggregate principal amount of Revolving Credit Loans then outstanding is
less than the amount of such excess (because L/C Obligations constitute a
portion thereof), the Borrower shall, to the extent of the balance of such
excess, replace outstanding Letters of Credit and/or deposit an amount in cash
or Cash Equivalents in an interest bearing cash collateral account established
with the Administrative Agent for the benefit of the Lenders on terms and
conditions reasonably satisfactory to the Administrative Agent. The application
of any prepayment of Loans under any Facility pursuant to this Section shall be
made, first, to Base Rate Loans under such Facility and, second, to Eurodollar
----- ------
Loans under such Facility. Each prepayment of the Loans under this Section
(except in the case of Revolving Credit Loans that are Base Rate Loans) shall be
accompanied by accrued interest to the date of such prepayment on the amount
prepaid.
2.11 Conversion and Continuation Options. (a) The Borrower may elect
-----------------------------------
from time to time to convert Eurodollar Loans to Base Rate Loans by giving the
Administrative Agent at least two Business Days' prior irrevocable notice of
such election, provided that any such conversion of Eurodollar Loans may be made
--------
only on the last day of an Interest Period with respect thereto. The Borrower
may elect from time to time to convert Base Rate Loans to Eurodollar Loans by
giving the Administrative Agent at least three Business Days' prior irrevocable
notice of such election (which notice shall specify the length of the initial
Interest Period therefor), provided that no Base Rate Loan under a particular
--------
Facility may be converted into a Eurodollar Loan (i) when any Event of Default
has occurred and is continuing and the Administrative Agent has, or the Majority
Facility Lenders in respect of such Facility have, determined in its or their
sole discretion not to permit such conversions or (ii) after the date that is
one month prior to the final scheduled termination or maturity date of such
Facility. Upon
32
receipt of any such notice the Administrative Agent shall promptly notify each
relevant Lender thereof.
(b) The Borrower may elect to continue any Eurodollar Loan as such
upon the expiration of the then current Interest Period with respect thereto by
giving irrevocable notice to the Administrative Agent, in accordance with the
applicable provisions of the term "Interest Period" set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Loans, provided
--------
that no Eurodollar Loan under a particular Facility may be continued as such (i)
when any Event of Default has occurred and is continuing and the Administrative
Agent has, or the Majority Facility Lenders in respect of such Facility have,
determined in its or their sole discretion not to permit such continuations or
(ii) after the date that is one month prior to the final scheduled termination
or maturity date of such Facility, and provided, further, that if the Borrower
-------- -------
shall fail to give any required notice as described above in this paragraph or
if such continuation is not permitted pursuant to the preceding proviso, such
Loans shall be converted automatically to Base Rate Loans on the last day of
such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.
2.12 Minimum Amounts and Maximum Number of Eurodollar Tranches.
---------------------------------------------------------
Notwithstanding anything to the contrary in this Agreement, all borrowings,
conversions, continuations and optional prepayments of Eurodollar Loans and all
selections of Interest Periods shall be in such amounts and be made pursuant to
such elections so that, (a) after giving effect thereto, the aggregate principal
amount of the Eurodollar Loans comprising each Eurodollar Tranche shall be equal
to $5,000,000 or a whole multiple of $1,000,000 in excess thereof and (b) no
more than ten Eurodollar Tranches shall be outstanding at any one time.
2.13 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
--------------------------------
shall bear interest for each day during each Interest Period with respect
thereto at a rate per annum equal to the Eurodollar Rate determined for such day
plus the Applicable Margin.
(b) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(c) (i) If all or a portion of the principal amount of any Loan
shall not be paid when due (whether at the stated maturity, by acceleration or
otherwise), all outstanding Loans and Reimbursement Obligations (whether or not
overdue) shall bear interest at a rate per annum that is equal to (x) in the
case of the Loans, the rate that would otherwise be applicable thereto pursuant
to the foregoing provisions of this Section plus 2% or (y) in the case of
----
Reimbursement Obligations, the rate applicable to Base Rate Loans under the
Revolving Credit Facility plus 2%, and (ii) if all or a portion of any interest
----
payable on any Loan or Reimbursement Obligation or any commitment fee or other
amount payable hereunder shall not be paid when due (whether at the stated
maturity, by acceleration or otherwise), such overdue amount shall bear interest
at a rate per annum equal to the rate then applicable to Base Rate Loans under
the relevant Facility plus 2% (or, in the case of any such other amounts that do
----
not relate to a particular Facility, the rate then applicable to Base Rate Loans
under the Revolving Credit Facility plus 2%), in each
----
33
case, with respect to clauses (i) and (ii) above, from the date of such non-
payment until such amount is paid in full (after as well as before judgment).
(d) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to paragraph (c) of this Section
--------
shall be payable from time to time on demand.
2.14 Computation of Interest and Fees. (a) Interest, fees,
--------------------------------
commissions payable pursuant hereto shall be calculated on the basis of a 360-
day year for the actual days elapsed, except that, with respect to Base Rate
Loans on which interest is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the Base Rate or the Eurocurrency Reserve
Requirements shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrower and the relevant Lenders of the effective date
and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative
Agent pursuant to any provision of this Agreement shall be conclusive and
binding on the Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of the Borrower, deliver to the
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.13(a).
2.15 Inability to Determine Interest Rate. If prior to the first day
------------------------------------
of any Interest Period:
(a) the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) 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) the Administrative Agent shall have received notice from the
Majority Facility Lenders in respect of the relevant Facility that the
Eurodollar Rate determined or to be determined for such Interest Period
will not adequately and fairly reflect the cost to such Lenders (as
conclusively certified by such Lenders) of making or maintaining their
affected Loans during such Interest Period,
the Administrative Agent shall give telecopy or telephonic notice thereof to the
Borrower and the relevant Lenders as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans under the relevant Facility requested
to be made on the first day of such Interest Period shall be made as Base Rate
Loans, (y) any Loans under the relevant Facility that were to have been
converted on the first day of such Interest Period to Eurodollar Loans shall be
continued as Base Rate Loans and (z) any outstanding Eurodollar Loans under the
relevant Facility shall be
34
converted, on the last day of the then current Interest Period with respect
thereto, to Base Rate Loans. Until such notice has been withdrawn by the
Administrative Agent, no further Eurodollar Loans under the relevant Facility
shall be made or continued as such, nor shall the Borrower have the right to
convert Loans under the relevant Facility to Eurodollar Loans.
2.16 Pro Rata Treatment and Payments. (a) Each borrowing by the
-------------------------------
Borrower from the Lenders hereunder, each payment by the Borrower on account of
any commitment fee or Letter of Credit fee, and any reduction of the Commitments
of the Lenders, shall be made pro rata according to the respective Delayed Draw
--- ----
Term Loan Percentages, Tranche B Term Loan Percentages or Revolving Credit
Percentages, as the case may be, of the relevant Lenders. Each payment (other
than prepayments) in respect of principal or interest in respect of the Loans
and each payment in respect of fees payable hereunder shall be applied to the
amounts of such obligations owing to the Lenders pro rata according to the
--- ----
respective amounts then due and owing to the Lenders.
(b) Each mandatory prepayment required by Section 2.10 to be applied
to Term Loans shall be allocated between the Term Loan Facilities pro rata
--- ----
according to the respective outstanding principal amounts of Term Loans under
such Facilities. Each optional prepayment in respect of the Term Loans shall be
allocated between the Term Loan Facilities pro rata according to the respective
--- ----
outstanding principal amounts of Term Loans under such Facilities. Each payment
(including each prepayment) of the Term Loans outstanding under any Term Loan
Facility shall be allocated among the Term Loan Lenders holding such Term Loans
pro rata based on the principal amount of such Term Loans held by such Term Loan
--- ----
Lenders, and shall be applied to the installments of such Term Loans pro rata
--- ----
based on the remaining outstanding principal amount of such installments.
Amounts prepaid on account of the Term Loans may not be reborrowed.
(c) Each payment (including each prepayment) by the Borrower on
account of principal of and interest on the Revolving Credit Loans shall be made
pro rata according to the respective outstanding principal amounts of the
--- ----
Revolving Credit Loans then held by the Revolving Credit Lenders. Each payment
in respect of outstanding Reimbursement Obligations in respect of any Letter of
Credit shall be made to the Issuing Lender that issued such Letters of Credit.
(d) Notwithstanding anything to the contrary in Sections 2.9, 2.10 or
2.16, so long as any Delayed Draw Term Loans are outstanding, each Tranche B
Term Loan Lender may, at its option, decline up to all or a portion of any
optional prepayment or mandatory payment applicable to the Tranche B Term Loans
of such Lender; accordingly, with respect to the amount of any optional
prepayment described in Section 2.9 or mandatory prepayment described in
Section 2.10, in each case that is allocated to Tranche B Term Loans (such
amounts, the "Tranche B Prepayment Amount"), at any time when Delayed Draw Term
---------------------------
Loans remain outstanding, the Borrower will, (i) in the case of any optional
prepayment which the Borrower wishes to make, not later than 10 Business Days
prior to the date on which the Borrower wishes to make such optional prepayment,
and (ii) in the case of any mandatory prepayment required to be made pursuant to
Section 2.10, in lieu of applying such amount to the prepayment of Tranche
35
B Term Loans as provided in Section 2.10(e) and 2.16(b), on the date specified
in Section 2.10 for such prepayment, give the Administrative Agent telephonic
notice (promptly confirmed in writing) requesting that the Administrative Agent
prepare and provide to each Tranche B Term Loan Lender a notice (each, a
"Prepayment Option Notice") as described below. As promptly as practicable
------------------------
after receiving such notice from the Borrower, the Administrative Agent will
send to each Tranche B Term Loan Lender (with a copy to the Borrower) a
Prepayment Option Notice, which shall be in the form of Exhibit H, and shall
include an offer by the Borrower to prepay on the date (each a "Prepayment
----------
Date") that is 3 Business Days after the date of the Prepayment Option Notice,
----
the relevant Tranche B Term Loans of such Lender by an amount equal to the
portion of the Prepayment Amount indicated in such Lender's Prepayment Option
Notice as being applicable to such Lender's Tranche B Term Loans. On the
Prepayment Date, (i) the Borrower shall pay to the Administrative Agent the
aggregate amount necessary to prepay that portion of the outstanding relevant
Tranche B Term Loans in respect of which Tranche B Term Loan Lenders have
accepted prepayment as described above (such Lenders, the "Accepting Lenders"),
-----------------
and such amount shall be applied toward prepayment of the Tranche B Term Loans
with respect to each Accepting Lender and (ii) the Borrower shall pay to the
Administrative Agent an amount equal to the portion of the Tranche B Prepayment
Amount not accepted by the Tranche B Term Loan Lenders, and such amount shall be
applied to the prepayment of the Delayed Draw Term Loans.
(e) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without setoff or counterclaim and shall be made prior to 1:00 pm, New
York City time, on the due date thereof to the Administrative Agent, for the
account of the Lenders, at the Payment Office, in Dollars and in immediately
available funds. Any payment made by the Borrower after 1:00 pm, New York City
time, on any Business Day shall be deemed to have been on the next following
Business Day. The Administrative Agent shall distribute such payments to the
Lenders promptly upon receipt in like funds as received. If any payment
hereunder (other than payments on the Eurodollar Loans) becomes due and payable
on a day other than a Business Day, such payment shall be extended to the next
succeeding Business Day. If any payment on a Eurodollar Loan becomes due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day unless the result of such extension
would be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Business Day. In the case of
any extension of any payment of principal pursuant to the preceding two
sentences, interest thereon shall be payable at the then applicable rate during
such extension.
(f) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its share of such borrowing available to the
Administrative Agent, the Administrative Agent may assume that such Lender is
making such amount available to the Administrative Agent, and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. If such amount is not made available to the
Administrative Agent by the required time on the Borrowing Date therefor, such
Lender shall pay to the Administrative Agent, on demand, such amount with
interest thereon at a rate equal to the daily average Federal
36
Funds Effective Rate for the period until such Lender makes such amount
immediately available to the Administrative Agent. A certificate of the
Administrative Agent submitted to any Lender with respect to any amounts owing
under this paragraph shall be conclusive in the absence of manifest error. If
such Lender's share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to Base Rate Loans
under the relevant Facility, on demand, from the Borrower.
(g) Unless the Administrative Agent shall have been notified in
writing by the Borrower prior to the date of any payment due to be made by the
Borrower hereunder that the Borrower will not make such payment to the
Administrative Agent, the Administrative Agent may assume that the Borrower is
making such payment, and the Administrative Agent may, but shall not be required
to, in reliance upon such assumption, make available to the Lenders their
respective pro rata shares of a corresponding amount. If such payment is not
--- ----
made to the Administrative Agent by the Borrower within three Business Days
after such due date, the Administrative Agent shall be entitled to recover, on
demand, from each Lender to which any amount which was made available pursuant
to the preceding sentence, such amount with interest thereon at the rate per
annum equal to the daily average Federal Funds Effective Rate. Nothing herein
shall be deemed to limit the rights of the Administrative Agent or any Lender
against the Borrower.
2.17 Requirements of Law. (a) If the adoption of or any change in
-------------------
any Requirement of Law or in the interpretation or application thereof or
compliance by any Lender with any request or directive (whether or not having
the force of law) from any central bank or other Governmental Authority made
subsequent to the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any Application or
any Eurodollar Loan made by it, or change the basis of taxation of payments
to such Lender in respect thereof (except for Non-Excluded Taxes covered by
Section 2.18 and changes in the rate of tax on the overall net income of
such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate hereunder; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall pay such
37
Lender, within 30 days following its demand, any additional amounts necessary to
compensate such Lender for such increased cost or reduced amount receivable. If
any Lender becomes entitled to claim any additional amounts pursuant to this
Section, it shall promptly notify the Borrower (with a copy to the
Administrative Agent) of the event by reason of which it has become so entitled.
(b) If any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's policies with respect to capital adequacy)
by an amount deemed by such Lender to be material, then from time to time,
within 30 days following submission by such Lender to the Borrower (with a copy
to the Administrative Agent) of a written request therefor, the Borrower shall
pay to such Lender such additional amount or amounts as will compensate such
Lender or such corporation for such reduction.
(c) A certificate as to any additional amounts payable pursuant to
this Section submitted by any Lender to the Borrower (with a copy to the
Administrative Agent), together with an explanation and accompanying
calculations in reasonable detail, shall be conclusive in the absence of
manifest error. The obligations of the Borrower pursuant to this Section shall
survive the termination of this Agreement and the payment of the Loans and all
other amounts payable hereunder.
2.18 Taxes. (a) All payments made by the Borrower under this
-----
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on any Agent or any Lender as a result of a present or
former connection between such Agent or such Lender and the jurisdiction of the
Governmental Authority imposing such tax or any political subdivision or taxing
authority thereof or therein (other than any such connection arising solely from
such Agent's or such Lender's having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document). If any such non-excluded taxes, levies, imposts, duties,
charges, fees, deductions or withholdings ("Non-Excluded Taxes") or any Other
------------------
Taxes are required to be withheld from any amounts payable to any Agent or any
Lender hereunder, the amounts so payable to such Agent or such Lender shall be
increased to the extent necessary to yield to such Agent or such Lender (after
payment of all Non-Excluded Taxes and Other Taxes) interest or any such other
amounts payable hereunder at the rates or in the amounts specified in this
Agreement; provided, however, that the Borrower shall not be required to
-------- -------
increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender's
38
failure to comply with the requirements of paragraph (d) or (e) of this Section
or (ii) that are United States withholding taxes imposed on amounts payable to
such Lender at the time such Lender becomes a party to this Agreement, except to
the extent that such Lender's assignor (if any) was entitled, at the time of
assignment, to receive additional amounts from the Borrower with respect to such
Non-Excluded Taxes pursuant to Section 2.18(a).
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the
Borrower, as promptly as possible thereafter the Borrower shall send to the
Administrative Agent for the account of the relevant Agent or Lender, as the
case may be, a certified copy of an original official receipt received by the
Borrower showing payment thereof. If the Borrower fails to pay any Non-Excluded
Taxes or Other Taxes when due to the appropriate taxing authority or fails to
remit to the Administrative Agent the required receipts or other required
documentary evidence, the Borrower shall indemnify the Agents and the Lenders
for any incremental taxes, interest or penalties that become payable by any
Agent or any Lender as a result of any such failure. The agreements in this
Section 2.18 shall survive the termination of this Agreement and the payment of
the Loans and all other amounts payable hereunder.
(d) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "Non-U.S. Lender") shall
---------------
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form 1001 or Form
4224 (or, if required, Form W-8BEN or Form W-8ECI), or, in the case of a Non-
U.S. Lender claiming exemption from U.S. federal withholding tax under Section
871(h) or 881(c) of the Code with respect to payments of "portfolio interest" a
statement substantially in the form of Exhibit G and a Form W-8, or any
subsequent versions thereof or successors thereto properly completed and duly
executed by such Non-U.S. Lender claiming complete exemption from U.S. federal
withholding tax on all payments by the Borrower under this Agreement and the
other Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on
or before the date it becomes a party to this Agreement (or, in the case of any
Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms
promptly upon the obsolescence or invalidity of any form previously delivered by
such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower
at any time it determines that it is no longer in a position to provide any
previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose).
Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall
not be required to deliver any form pursuant to this paragraph that such Non-
U.S. Lender is not legally able to deliver.
(e) A Lender that is entitled to an exemption from non-U.S.
withholding tax under the law of the jurisdiction in which the Borrower is
located, or any treaty to which such
39
jurisdiction is a party, with respect to payments under this Agreement shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law or reasonably requested by the Borrower,
such properly completed and executed documentation prescribed by applicable law
as will permit such payments to be made without withholding, provided that such
--------
Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender's reasonable judgment such completion, execution or
submission would not materially prejudice the legal position of such Lender.
(f) No Lender shall be subject to U.S withholding tax or non-U.S.
withholding tax on the date it becomes a party to this Agreement (or, in the
case of any Participant, on the date such Participant purchases the related
participation).
2.19 Indemnity. The Borrower agrees to indemnify each Lender for,
---------
and to hold each Lender harmless from, any loss or expense that such Lender may
sustain or incur as a consequence of (a) default by the Borrower in making a
borrowing of, conversion into or continuation of Eurodollar Loans after the
Borrower has given a notice requesting the same in accordance with the
provisions of this Agreement, (b) subject to Section 2.16(d), default by the
Borrower in making any prepayment after the Borrower has given a notice thereof
in accordance with the provisions of this Agreement or (c) subject to Section
2.16(d), the making of a prepayment or conversion of Eurodollar Loans on a day
that is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender) that
----
would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank Eurodollar
market. A certificate as to any amounts payable pursuant to this Section
submitted to the Borrower by any Lender shall be conclusive in the absence of
manifest error. This covenant shall survive the termination of this Agreement
and the payment of the Loans and all other amounts payable hereunder.
2.20 Illegality. Notwithstanding any other provision herein, if
----------
after the date hereof the adoption of or any change in any Requirement of Law or
in the interpretation or application thereof shall make it unlawful for any
Lender to make or maintain Eurodollar Loans as contemplated by this Agreement,
(a) the commitment of such Lender hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Base Rate Loans to Eurodollar Loans shall
forthwith be canceled and (b) such Lender's Loans then outstanding as Eurodollar
Loans, if any, shall be converted automatically to Base Rate Loans on the
respective last days of the then current Interest Periods with respect to such
Loans or within such earlier period as required by law. If any such conversion
of a Eurodollar Loan occurs on a day which is not the last day of the then
current Interest Period with respect thereto, the Borrower shall pay to such
Lender such amounts, if any, as may be required pursuant to Section 2.19.
40
2.21 Change of Lending Office. Each Lender agrees that, upon the
------------------------
occurrence of any event giving rise to the operation of Section 2.17, 2.18(a) or
2.20 with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
--------
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section shall affect
-------- -------
or postpone any of the obligations of any Borrower or the rights of any Lender
pursuant to Section 2.17, 2.18(a) or 2.20.
2.22 Replacement of Lenders under Certain Circumstances. The
--------------------------------------------------
Borrower shall be permitted to replace any Lender that (a) requests
reimbursement for amounts owing pursuant to Section 2.17 or 2.18 or (b) defaults
in its obligation to make Loans hereunder, with a replacement financial
institution; provided that (i) such replacement does not conflict with any
--------
Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken each required action under Section 2.21 so as to
eliminate the continued need for payment of amounts owing pursuant to Section
2.17 or 2.18, (iv) the replacement financial institution shall purchase, at par,
all Loans and other amounts owing to such replaced Lender on or prior to the
date of replacement, (v) the Borrower shall be liable to such replaced Lender
under Section 2.19 (as though Section 2.19 were applicable) if any Eurodollar
Loan owing to such replaced Lender shall be purchased other than on the last day
of the Interest Period relating thereto, (vi) the replacement financial
institution, if not already a Lender, shall be reasonably satisfactory to the
Administrative Agent, (vii) the replaced Lender shall be obligated to make such
replacement in accordance with the provisions of Section 10.6 (provided that the
Borrower or such replacement financial institution shall be obligated to pay the
registration and processing fee referred to therein), (viii) the Borrower shall
pay all additional amounts (if any) required pursuant to Section 2.17 or 2.18,
as the case may be, in respect of any period prior to the date on which such
replacement shall be consummated, and (ix) any such replacement shall not be
deemed to be a waiver of any rights that the Borrower, any Agent or any other
Lender shall have against the replaced Lender.
SECTION 3. LETTERS OF CREDIT
3.1 L/C Commitment. (a) Subject to the terms and conditions hereof,
--------------
each Issuing Lender, in reliance on the agreements of the other Revolving Credit
Lenders set forth in Section 3.4(a), agrees to issue letters of credit ("Letters
-------
of Credit") for the account of the Borrower (or for the joint and several
---------
account of the Borrower and any Domestic Subsidiary thereof, if so requested by
the Borrower) on any Business Day during the Revolving Credit Commitment Period
in such form as may be approved from time to time by such Issuing Lender;
provided, that no Issuing Lender shall have any obligation to issue any Letter
--------
of Credit if, after giving effect to such issuance, (i) the L/C Obligations
would exceed the L/C Commitment or (ii) the aggregate amount of the Available
Revolving Credit Commitments would be less than zero.
41
Each Letter of Credit shall (i) be denominated in Dollars and (ii) expire no
later than the earlier of (x) the first anniversary of its date of issuance and
(y) the date which is five Business Days prior to the Scheduled Revolving Credit
Termination Date, provided that any Letter of Credit with a one-year term may
--------
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referred to in clause (y) above).
(b) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
3.2 Procedure for Issuance of Letter of Credit. The Borrower may
------------------------------------------
from time to time request that an Issuing Lender issue a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the reasonable satisfaction of such Issuing
Lender, and such other certificates, documents and other papers and information
as such Issuing Lender may reasonably request. Upon receipt of any Application,
an Issuing Lender will process such Application and the certificates, documents
and other papers and information delivered to it in connection therewith in
accordance with its customary procedures and shall promptly issue the Letter of
Credit requested thereby by issuing the original of such Letter of Credit to the
beneficiary thereof or as otherwise may be agreed to by such Issuing Lender and
the Borrower (but in no event shall any Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto). Promptly after issuance by an Issuing Lender
of a Letter of Credit, such Issuing Lender shall furnish a copy of such Letter
of Credit to the Borrower. Each Issuing Lender shall promptly furnish to the
Administrative Agent, notice of the issuance of each Letter of Credit issued by
it (including the amount thereof).
3.3 Fees and Other Charges. (a) The Borrower will pay a fee on the
----------------------
aggregate drawable amount of each outstanding Letter of Credit at a per annum
rate equal to the Applicable Margin then in effect with respect to Eurodollar
Loans under the Revolving Credit Facility, shared ratably among the Revolving
Credit Lenders in accordance with their respective Revolving Credit Percentages
and payable quarterly in arrears on each L/C Fee Payment Date after the issuance
date of such Letter of Credit. In addition, the Borrower shall pay to the
relevant Issuing Lender for its own account a fronting fee on the aggregate
drawable amount of each outstanding Letter of Credit issued by it at a rate per
annum to be agreed upon by the Borrower and the Issuing Lender, payable
quarterly in arrears on each L/C Fee Payment Date after the issuance date of
such Letter of Credit.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse each Issuing Lender for such normal and customary costs and expenses
as are incurred or charged by the Issuing Lender in issuing, negotiating,
effecting payment under, amending or otherwise administering any Letter of
Credit.
3.4 L/C Participations. (a) Each Issuing Lender irrevocably agrees
------------------
to grant and hereby grants to each L/C Participant, and, to induce each Issuing
Lender to issue Letters of
42
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from each Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Credit
Percentage in each Issuing Lender's obligations and rights under each Letter of
Credit issued by such Issuing Lender hereunder and the amount of each draft paid
by such Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with each Issuing Lender that, if a draft is paid under any
Letter of Credit issued by such Issuing Lender for which such Issuing Lender is
not reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to such Issuing Lender upon demand at
such Issuing Lender's address for notices specified herein an amount equal to
such L/C Participant's Revolving Credit Percentage of the amount of such draft,
or any part thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to an
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed portion
of any payment made by such Issuing Lender under any Letter of Credit is paid to
such Issuing Lender within three Business Days after the date such payment is
due, such L/C Participant shall pay to such Issuing Lender on demand an amount
equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to such
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
3.4(a) is not made available to such Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, such Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at the rate per annum
applicable to Base Rate Loans under the Revolving Credit Facility. A
certificate of such Issuing Lender submitted to any L/C Participant with respect
to any such amounts owing under this Section shall be conclusive in the absence
of manifest error.
(c) Whenever, at any time after an Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its pro
---
rata share of such payment in accordance with Section 3.4(a), such Issuing
----
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its pro rata share
--- ----
thereof; provided, however, that in the event that any such payment received by
-------- -------
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
3.5 Reimbursement Obligation of the Borrower. The Borrower agrees to
----------------------------------------
reimburse each Issuing Lender on the next Business Day after each date on which
such Issuing Lender notifies the Borrower of the date and amount of a draft
presented under any Letter of Credit and paid by such Issuing Lender for the
amount of (a) such draft so paid and (b) any taxes, fees, charges or other costs
or expenses incurred by such Issuing Lender in connection with such
43
payment (the amounts described in the foregoing clauses (a) and (b) in respect
of any drawing, collectively, the "Payment Amount"). Each such payment shall be
--------------
made to such Issuing Lender at its address for notices specified herein in
lawful money of the United States of America and in immediately available funds.
Interest shall be payable on each Payment Amount from the date of the applicable
drawing until payment in full at the rate set forth in (i) until the second
Business Day following the date of the applicable drawing, Section 2.13(b) and
(ii) thereafter, Section 2.13(c). Each drawing under any Letter of Credit shall
(unless an event of the type described in clause (i) or (ii) of Section 8(f)
shall have occurred and be continuing with respect to the Borrower, in which
case the procedures specified in Section 3.4 for funding by L/C Participants
shall apply) constitute a request by the Borrower to the Administrative Agent
for a borrowing pursuant to Section 2.5 of Base Rate Loans in the amount of such
drawing. The Borrowing Date with respect to such borrowing shall be the first
date on which a borrowing of Revolving Credit Loans could be made (without
regard to whether the conditions precedent in Section 5.2 are satisfied),
pursuant to Section 2.5, if the Administrative Agent had received a notice of
such borrowing at the time the Administrative Agent receives notice from the
relevant Issuing Lender of such drawing under such Letter of Credit.
3.6 Obligations Absolute. The Borrower's obligations under this
--------------------
Section 3 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment that the
Borrower may have or have had against any Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each
Issuing Lender that such Issuing Lender shall not be responsible for, and the
Borrower's Reimbursement Obligations under Section 3.5 shall not be affected by,
among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. No Issuing
Lender shall be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions resulting from the gross negligence or willful misconduct of such
Issuing Lender. The Borrower agrees that any action taken or omitted by an
Issuing Lender under or in connection with any Letter of Credit issued by it or
the related drafts or documents, if done in the absence of gross negligence or
willful misconduct and in accordance with the standards of care specified in the
Uniform Commercial Code of the State of New York, shall be binding on the
Borrower and shall not result in any liability of such Issuing Lender to the
Borrower.
3.7 Letter of Credit Payments. If any draft shall be presented for
-------------------------
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the Borrower of the date and amount thereof. The responsibility of the
relevant Issuing Lender to the Borrower in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit issued by such
Issuing Lender, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such presentment
are substantially in conformity with such Letter of Credit.
44
3.8 Applications. To the extent that any provision of any
------------
Application related to any Letter of Credit is inconsistent with the provisions
of this Section 3, the provisions of this Section 3 shall apply.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Agents and the Lenders to enter into this Agreement and
to make the Loans, the Borrower hereby represents and warrants to each Agent and
each Lender that:
4.1 Financial Condition. (a) The audited consolidated balance
-------------------
sheets of the Borrower as at April 2, 1999 and the related consolidated
statements of income and of cash flows for the fiscal year ended on such dates,
reported on by and accompanied by an unqualified report from Deloitte & Touche,
present fairly the consolidated financial condition of the Borrower as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the fiscal year then ended. The pro forma unaudited consolidated
balance sheet of the Borrower (excluding NTC) as at April 2, 1999, and the
related unaudited consolidated statements of income and cash flows for the
twelve-month period ended on such date, present fairly the consolidated
financial condition of the Borrower as at such date, and the consolidated
results of its operations and its consolidated cash flows for the twelve-month
period then ended (subject to normal year-end audit adjustments)(excluding NTC).
All such financial statements, including the related schedules and notes
thereto, have been prepared in accordance with GAAP applied consistently
throughout the periods involved (except as approved by the aforementioned firm
of accountants and disclosed therein). The Borrower and its Subsidiaries do not
have any material Guarantee Obligations, contingent liabilities and liabilities
for taxes, or any long-term leases or unusual forward or long-term commitments,
including, without limitation, any interest rate or foreign currency swap or
exchange transaction or other obligation in respect of derivatives, that are not
reflected in the most recent financial statements referred to in this paragraph.
During the period from April 2, 1999 to and including the date hereof there has
been no Disposition by the Borrower or any of its Subsidiaries of any material
part of their business or Property.
4.2 No Change. Since April 2, 1999 there has been no development or
---------
event that has had or could reasonably be expected to have a Material Adverse
Effect.
4.3 Corporate Existence; Compliance with Law. Each of the Borrower
----------------------------------------
and its Subsidiaries (a) is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization, (b) has the
corporate power and authority, and the legal right, to own and operate its
Property, to lease the Property it operates as lessee and to conduct the
business in which it is currently engaged, (c) is duly qualified as a foreign
corporation and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of Property or the conduct of its business
requires such qualification except where failure to be so qualified or in good
standing could not reasonably be expected to have a Material Adverse Effect
45
and (d) is in compliance with all Requirements of Law except to the extent that
the failure to comply therewith could not, in the aggregate, reasonably be
expected to have a Material Adverse Effect.
4.4 Corporate Power; Authorization; Enforceable Obligations. Each
-------------------------------------------------------
Loan Party has the corporate power and authority, and the legal right, to make,
deliver and perform the Loan Documents to which it is a party and, in the case
of the Borrower, to borrow hereunder. Each Loan Party has taken all necessary
corporate or other action to authorize the execution, delivery and performance
of the Loan Documents to which it is a party and, in the case of the Borrower,
to authorize the borrowings on the terms and conditions of this Agreement. No
consent or authorization of, filing with, notice to or other act by or in
respect of, any Governmental Authority or any other Person is required in
connection with the borrowings hereunder or the execution, delivery,
performance, validity or enforceability of this Agreement or any of the other
Loan Documents, except (i) approvals by the board of directors or other
governing body and such consents, authorizations, filings and notices described
in Schedule 4.4, which approvals, consents, authorizations, filings and notices
have been obtained or made and are in full force and effect, (ii) the filings
referred to in Section 4.22 and (iii) such approvals, consents, authorizations,
filings and notices the absence of which could not reasonably be expected to
have a Material Adverse Effect. This Agreement has been, and each other Loan
Document when executed and delivered pursuant hereto will have been, duly
executed and delivered on behalf of each Loan Party that is a party thereto.
This Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party that is a
party thereto, enforceable against each such Loan Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
4.5 No Legal Bar. The execution, delivery and performance of this
------------
Agreement and the other Loan Documents, the issuance of Letters of Credit, the
borrowings hereunder and the use of the proceeds thereof will not violate any
Requirement of Law or any Contractual Obligation of the Borrower or any of its
Subsidiaries in any respect that could reasonably be expected to have a Material
Adverse Effect and will not result in, or require, the creation or imposition of
any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents).
4.6 No Material Litigation. No litigation, investigation or
----------------------
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Borrower, threatened by or against the Borrower or any
of its Subsidiaries or against any of their respective properties or revenues
(a) with respect to any of the Loan Documents or any of the transactions
contemplated hereby or thereby, or (b) that could reasonably be expected to have
a Material Adverse Effect.
4.7 No Default. Neither the Borrower nor any of its Subsidiaries is
----------
in default under or with respect to any of its Contractual Obligations in any
respect that could reasonably
46
be expected to have a Material Adverse Effect. No Default or Event of Default
has occurred and is continuing.
4.8 Ownership of Property; Liens. Each of the Borrower and its
----------------------------
Subsidiaries has title in fee simple to, or a valid leasehold interest in, all
its real property, and good title to, or a valid leasehold interest in, all its
other Property, and none of such Property is subject to any Lien except as
permitted by Section 7.3. The Borrower and its Subsidiaries have all material
rights of way and permits required to use communications lines or facilities
required for the conduct of their business.
4.9 Intellectual Property. The Borrower and each of its
---------------------
Subsidiaries owns, or is licensed to use, all Intellectual Property necessary
for the conduct of its business as currently conducted. No material claim has
been asserted and is pending by any Person challenging or questioning the use by
the Borrower or any of its Subsidiaries of any material Intellectual Property or
the validity or effectiveness of any material Intellectual Property owned by the
Borrower or any of its Subsidiaries, nor does the Borrower know of any valid
basis for any such claim. The use of material Intellectual Property by the
Borrower and its Subsidiaries does not infringe on the rights of any Person in
any material respect.
4.10 Taxes. Each of the Borrower and each of its Subsidiaries has
-----
filed or caused to be filed all Federal, state and other material tax returns
that are required to be filed and has paid all taxes shown to be due and payable
on said returns or on any assessments made against it or any of its Property and
all other material taxes, fees or other charges imposed on it or any of its
Property by any Governmental Authority (other than any the amount or validity of
which are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of the Borrower or its Subsidiaries, as the case may be); and no tax Lien
has been filed, and, to the knowledge of the Borrower, no claim is being
asserted, with respect to any such material tax, fee or other charge.
4.11 Federal Regulations. No part of the proceeds of any Revolving
-------------------
Credit Loans will be used for "purchasing" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation U as
now and from time to time hereafter in effect or for any purpose that violates
the provisions of the Regulations of the Board. If requested by any Lender or
the Administrative Agent, the Borrower will furnish to the Administrative Agent
and each Lender a statement to the foregoing effect in conformity with the
requirements of FR Form G-3 or FR Form U-1 referred to in Regulation U.
4.12 Labor Matters. There are no strikes or other labor disputes
-------------
against the Borrower or any of its Subsidiaries pending or, to the knowledge of
the Borrower, threatened that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. Hours worked by and
payment made to employees of the Borrower and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters that (individually or in the aggregate) could
reasonably be expected to have a Material Adverse Effect. All payments due from
the Borrower or any of its Subsidiaries on account of employee health and
welfare insurance that (individually or in the
47
aggregate) could reasonably be expected to have a Material Adverse Effect if not
paid have been paid or accrued as a liability on the books of the Borrower or
the relevant Subsidiary.
4.13 ERISA. Neither a Reportable Event nor an "accumulated funding
-----
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no
Lien in favor of the PBGC or a Plan has arisen, during such five-year period.
The present value of all accrued benefits under each Single Employer Plan (based
on those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
4.14 Investment Company Act; Other Regulations. No Loan Party is an
-----------------------------------------
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to regulation under any Requirement of Law (other than
Regulation X of the Board) which limits its ability to incur Indebtedness.
4.15 Subsidiaries. (a) The Subsidiaries listed on Schedule 4.15
------------
constitute all the Subsidiaries of the Borrower at the date hereof. Schedule
4.15 sets forth as of the Closing Date the name and jurisdiction of
incorporation of each Subsidiary and, as to each Subsidiary, the percentage of
each class of Capital Stock owned by each Loan Party.
(b) As of the Closing Date, there are no outstanding subscriptions,
options, warrants, calls, rights or other agreements or commitments (other than
stock options granted to employees or directors and directors' qualifying
shares) of any nature relating to any Capital Stock of any Subsidiary, except
as disclosed on Schedule 4.15.
4.16 Use of Proceeds. The proceeds of the Tranche B Term Loans and
---------------
a portion of the proceeds of the Delayed Draw Term Loans shall be used to repay
the Existing Credit Facilities. The proceeds of the Delayed Draw Term Loans and
the Revolving Credit Loans shall be used for the general working capital needs
of the Borrower and its Subsidiaries, including Capital Expenditures and a loan
from the Borrower to NTC in an aggregate principal amount not to exceed
$5,000,000.
48
4.17 Environmental Matters. Other than exceptions to any of the
---------------------
following that could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect:
(a) the Borrower and its Subsidiaries: (i) are, and within the
period of all applicable statutes of limitation have been, in compliance
with all applicable Environmental Laws; (ii) hold all Environmental Permits
(each of which is in full force and effect) required for any of their
current or intended operations or for any property owned, leased, or
otherwise operated by any of them; (iii) are, and within the period of all
applicable statutes of limitation have been, in compliance with all of
their Environmental Permits; and (iv) reasonably believe that: each of
their Environmental Permits will be timely renewed and complied with,
without material expense; any additional Environmental Permits that may be
required of any of them will be timely obtained and complied with, without
material expense; and compliance with any Environmental Law that is or is
expected to become applicable to any of them will be timely attained and
maintained, without material expense.
(b) Materials of Environmental Concern are not present at, on, under,
in, or about any real property now or formerly owned, leased or operated by
the Borrower or any of its Subsidiaries, or at any other location
(including, without limitation, any location to which Materials of
Environmental Concern have been sent for re-use or recycling or for
treatment, storage, or disposal) which could reasonably be expected to (i)
give rise to liability of the Borrower or any of its Subsidiaries under any
applicable Environmental Law or otherwise result in costs to the Borrower
or any of its Subsidiaries, or (ii) interfere with the Borrower's or any of
its Subsidiaries' continued operations, or (iii) impair the fair saleable
value of any real property owned by the Borrower or any of its
Subsidiaries.
(c) There is no judicial, administrative, or arbitral proceeding
(including any notice of violation or alleged violation) under or relating
to any Environmental Law to which the Borrower or any of its Subsidiaries
is, or to the knowledge of the Borrower or will be, named as a party that
is pending or, to the knowledge of the Borrower, threatened.
(d) Neither the Borrower nor any of its Subsidiaries has received any
written request for information, or been notified that it is a potentially
responsible party under or relating to the federal Comprehensive
Environmental Response, Compensation, and Liability Act or any similar
Environmental Law, or with respect to any Materials of Environmental
Concern.
(e) Neither the Borrower nor any of its Subsidiaries has entered into
or agreed to any consent decree, order, or settlement or other agreement,
or is subject to any judgment, decree, or order or other agreement, in any
judicial, administrative, arbitral, or other forum for dispute resolution,
relating to compliance with or liability under any Environmental Law.
49
(f) Neither the Borrower nor any of its Subsidiaries has assumed or
retained, by contract or operation of law, any liabilities of any kind,
fixed or contingent, known or unknown, under any Environmental Law or with
respect to any Material of Environmental Concern.
4.18 Accuracy of Information, etc. No factual statement or
-----------------------------
information contained in this Agreement, any other Loan Document, the
Confidential Information Memorandum or any other document, certificate or
statement furnished in writing to the Administrative Agent or the Lenders or any
of them, by or on behalf of any Loan Party for use in connection with the
transactions contemplated by this Agreement or the other Loan Documents,
contained as of the date such statement, information, document or certificate
was so furnished (or, in the case of the Confidential Information Memorandum, as
of the date of this Agreement), any untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements
contained herein or therein not misleading in light of the circumstances when
made. The projections and pro forma financial information contained in the
--- -----
materials referenced above are based upon good faith estimates and assumptions
believed by management of the Borrower to be reasonable at the time made, it
being recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact
known to any Loan Party that could reasonably be expected to have a Material
Adverse Effect that has not been expressly disclosed herein, in the other Loan
Documents, in the Confidential Information Memorandum or in any other documents,
certificates and statements furnished to the Agents and the Lenders for use in
connection with the transactions contemplated hereby and by the other Loan
Documents.
4.19 Solvency. Each Loan Party is, and after giving effect to the
--------
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
4.20 Year 2000 Matters. Except where the failure to do so could not
-----------------
reasonably be expected to have a Material Adverse Effect, any reprogramming
required to permit the proper functioning, in and following the year 2000, of
(i) the Borrower's computer systems and (ii) the Borrower's equipment containing
embedded microchips and the testing of all such systems and equipment owned by
the Borrower, as so reprogrammed, will be completed by September 30, 1999. To
the knowledge of the Borrower, the cost to the Borrower of such reprogramming
and testing and of the reasonably foreseeable consequences of year 2000 to the
Borrower (including, without limitation, reprogramming errors and the failure of
others' systems or equipment) will not result in a Default or a Material Adverse
Effect. Except for such of the reprogramming referred to in the preceding
sentence as may be necessary, the computer and management information systems of
the Borrower and its Subsidiaries are and, with ordinary course upgrading and
maintenance, will continue for the term of this Agreement to be, sufficient to
permit the Borrower to conduct its business without Material Adverse Effect.
50
4.21 FCC and State Regulatory Compliance. (a) The Borrower and its
-----------------------------------
Subsidiaries are in compliance with (i) the Communications Act, (ii) all
applicable communications laws and regulations of any state of the United States
(the "States") and (iii), to the knowledge of the Borrower, all applicable
communications laws and regulations of any foreign jurisdiction (the "Foreign
Jurisdictions"), except in the case of the foregoing clauses (i), (ii) and (iii)
taken together to the extent that the failure to be in compliance could not
reasonably be expected to have a Material Adverse Effect. To the knowledge of
the Borrower, there is no license or permit required for the operations of the
business of the Borrower or its Subsidiaries by any State or Foreign
Jurisdiction or by the FCC which is not held by the Borrower and its
Subsidiaries.
(b) The Borrower and its Subsidiaries hold the FCC Authorizations
identified in Schedule 4.21(b). Except as described in Schedule 4.21(b), each
of such FCC Authorizations is in full force and effect and has not been revoked,
suspended, canceled, or modified in any adverse way and, except as may be set
forth on Schedule 4.21(b), is not subject to any conditions or requirements that
are not generally imposed by the FCC upon the holders of such authorizations.
The FCC Authorizations listed in Schedule 4.21(b) are the only FCC
Authorizations required for the conduct of the business of the Borrower and its
Subsidiaries as conducted on the Closing Date. Neither the Borrower nor any of
its Subsidiaries holds any radio license issued by the FCC under Title III of
the Communications Act.
(c) Except as described on Schedule 4.21(c), (i) the Borrower has no
knowledge of any investigation, notice of apparent liability, violation,
forfeiture or other order or complaint issued by or before the FCC or any
governmental body in any State or any Foreign Jurisdiction, or of any other
proceedings of or before the FCC or any governmental body in any State or any
Foreign Jurisdiction, which could reasonably be expected to have a Material
Adverse Effect; and (ii) no proceedings are pending or, to the knowledge of the
Borrower, threatened, to revoke or limit any FCC Authorization, any permits,
certificates, licenses, registrations, tariff filings or approvals or other
authorizations from the States to conduct their current business (collectively
"State Permits") or any permits, certificates, licenses, registrations, tariff
-------------
filings or approvals or other authorizations from the Foreign Jurisdictions to
conduct their current business (collectively "Foreign Permits"), except, in each
---------------
case, those the absence or violation of which do not and could not reasonably be
expected to have a Material Adverse Effect.
(d) Except as described on Schedule 4.21(d), the Borrower has no
knowledge of the occurrence of any event which results in, or after notice or
lapse of time or both would result in, (i) revocation, suspension, adverse
modification, non-renewal, impairment, restriction or termination of, or order
of forfeiture with respect to, any State Permit, Foreign Permit or FCC
Authorization or (ii) any requirement to obtain any FCC Authorization, State
Permit or Foreign Permit which (in the case of (i) and (ii) above), in any
respect, could reasonably be expected in the future to affect any of the rights
of the Borrower or any of its Subsidiaries under any State Permit, Foreign
Permit or FCC Authorization or the qualifications of the Borrower to conduct its
business consistent with the FCC's regulation and the applicable law of any
State or Foreign Jurisdiction in any respect that could reasonably be expected
to have a Material Adverse Effect, except such changes in laws or regulations in
any jurisdiction arising after the date of this
51
Agreement which are generally applicable in the industry and may affect the
Borrower or its Subsidiaries.
(e) Each of the Borrower and its Subsidiaries has duly filed in a
timely manner all material filings, reports, applications, documents,
instruments and information required to be filed by it under the Communications
Act and all applicable State and Foreign Jurisdiction communications laws and
regulations, and all such filings were when made true, correct and complete in
all material respects, except to the extent that the failure to comply or the
failure of any of the statements made in this paragraph to be true and correct
could not reasonably be expected to have a Material Adverse Effect.
4.22 Security Documents. The Guarantee and Collateral Agreement is
------------------
effective to create in favor of the Administrative Agent, for the benefit of the
Lenders, a legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof. In the case of the Pledged Stock
described in the Guarantee and Collateral Agreement, when any stock certificates
representing such Pledged Stock are delivered to the Administrative Agent, and
in the case of the other Collateral described in the Guarantee and Collateral
Agreement, when financing statements in appropriate form are filed in the
offices specified on Schedule 4.22-1 (which financing statements have been duly
completed and executed and delivered to the Administrative Agent) and such other
filings and actions as are specified on Schedule 3 to the Guarantee and
Collateral Agreement have been duly completed, the Guarantee and Collateral
Agreement shall constitute a fully perfected Lien on, and security interest in,
all right, title and interest of the Loan Parties in such Collateral and the
proceeds thereof, as security for the Obligations (as defined in the Guarantee
and Collateral Agreement), in each case prior and superior in right to any other
Person (except, in the case of Collateral other than Pledged Stock, Liens
permitted by Section 7.3 and, in the case of Pledged Stock, Liens that arise by
operation of law). Schedule 4.22-2 lists each UCC Financing Statement that (i)
names any Loan Party as debtor and (ii) will remain on file after the Closing
Date. Schedule 4.22-3 lists each UCC Financing Statement that (i) names any
Loan Party as debtor and (ii) will be terminated on or prior to the Closing
Date; and on or prior to the Closing Date, the Borrower will have delivered to
the Administrative Agent, or caused to be filed, duly completed UCC termination
statements, signed by the relevant secured party, in respect of each UCC
Financing Statement listed in Schedule 4.22-3.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Extension of Credit. The agreement of each
-----------------------------------------
Lender to make the initial extension of credit requested to be made by it
hereunder is subject to the satisfaction, prior to or concurrently with the
making of such extension of credit on the Closing Date, of the following
conditions precedent:
(a) Loan Documents. The Administrative Agent shall have received (i)
--------------
this Agreement, executed and delivered by a duly authorized officer the
Borrower, (ii) the Guarantee and Collateral Agreement, executed and
delivered by a duly authorized officer of the Borrower and each Subsidiary
Guarantor, and (iii) for the account of each Lender
52
so requesting, Notes conforming to the requirements hereof and executed and
delivered by a duly authorized officer of the Borrower.
(b) Financial Statements. The Lenders shall have received audited
--------------------
consolidated financial statements of the Borrower for the 1998 and 1999
fiscal years and unaudited interim consolidated financial statements of the
Borrower for each fiscal quarterly period ended subsequent to the date of
the latest applicable financial statements delivered pursuant to this
paragraph as to which such financial statements are available; and such
financial statements shall not, in the reasonable judgment of the Lenders,
reflect any material adverse change in the consolidated financial condition
of the Borrower, as reflected in the Borrower's audited financial
statements for fiscal year 1999 or the projections of the Borrower
contained in the Confidential Information Memorandum.
(c) Approvals. All governmental and third party approvals, if any,
---------
necessary in connection with the transactions contemplated hereby shall
have been obtained and be in full force and effect.
(d) Related Agreements. The Administrative Agent shall have received
------------------
(in a form reasonably satisfactory to the Administration Agent), certified
as to authenticity by the Borrower, of any other debt instrument or
security agreement in each case in respect of indebtedness in excess of
$2,000,000 to which the Loan Parties may be a party.
(e) Termination of Existing Credit Facilities. The Administrative
-----------------------------------------
Agent shall have received evidence reasonably satisfactory to the
Administrative Agent that the Existing Credit Facilities shall be
simultaneously terminated, and all amounts thereunder shall be
simultaneously paid in full.
(f) Fees. The Lenders and the Agents shall have received all fees
----
required to be paid, and all expenses for which invoices have been
presented (including reasonable fees, disbursements and other charges of
counsel to the Arranger), on or before the Closing Date. All such amounts
will be paid with proceeds of Loans made on the Closing Date and will be
reflected in the funding instructions given by the Borrower to the
Administrative Agent on or before the Closing Date.
(g) Business Plan. The Lenders shall have received a satisfactory
-------------
business plan for fiscal years 1999-2006 and a satisfactory written
analysis of the business and prospects of the Borrower and its Subsidiaries
for the period from the Closing Date through the 2006 fiscal year end.
(h) Closing Certificate. The Administrative Agent shall have received
-------------------
a certificate of each Loan Party, dated the Closing Date, substantially in
the form of Exhibit C, with appropriate insertions and attachments.
(i) Legal Opinions. The Administrative Agent shall have received the
--------------
legal opinion of Xxxxxx & Xxxxxxx, counsel to the Borrower and its
Subsidiaries, which shall cover the matters set forth in Exhibit F. Such
legal opinion shall cover such other matters
53
incident to the transactions contemplated by this Agreement as the
Administrative Agent may reasonably require.
(j) Lien Searches. The Administrative Agent shall have received the
-------------
results of a recent Lien search in each of the jurisdictions in which
Uniform Commercial Code financing statements or other filings or
recordations should be made to evidence or perfect by the filing of
financing statements security interests in the Collateral, and such search
shall reveal no Liens on any of the Collateral, except for Liens permitted
by Section 7.3, or terminated, or as to which UCC Termination Statements
have been delivered to the Administrative Agent, on or before the Closing
Date.
(k) Pledged Stock; Stock Powers; Acknowledgment and Consent ; Pledged
-----------------------------------------------------------------
Notes. The Administrative Agent shall have received (i) the certificates,
-----
if any, representing the shares of Capital Stock pledged pursuant to the
Guarantee and Collateral Agreement, together with an undated stock power
for each such certificate executed in blank by a duly authorized officer of
the pledgor thereof, (ii) an Acknowledgment and Consent, substantially in
the form of Annex II to the Guarantee and Collateral Agreement, duly
executed by any issuer of Capital Stock pledged pursuant to the Guarantee
and Collateral Agreement that is not itself a party to the Guarantee and
Collateral Agreement and that is controlled by a party to the Guarantee and
Collateral Agreement and (iii) each promissory note pledged pursuant to the
Guarantee and Collateral Agreement endorsed (without recourse) in blank (or
accompanied by an executed transfer form in blank satisfactory to the
Administrative Agent) by the pledgor thereof.
(l) Filings, Registrations and Recordings. Each document (including,
-------------------------------------
without limitation, any Uniform Commercial Code financing statement)
required by the Security Documents or under law or reasonably requested by
the Administrative Agent to be filed, registered or recorded in order to
create in favor of the Administrative Agent, for the benefit of the
Lenders, a perfected Lien on the Collateral described therein, prior and
superior in right to any other Person (other than with respect to Liens
expressly permitted by Section 7.3, or Liens to be released on or before
the Closing Date), shall have been filed, registered or recorded or shall
have been delivered to the Administrative Agent be in proper form for
filing, registration or recordation.
(m) Insurance. The Administrative Agent shall have received insurance
---------
certificates satisfying the requirements of Section 5.3 of the Guarantee
and Collateral Agreement.
5.2 Conditions to Each Extension of Credit. The agreement of each
--------------------------------------
Lender to make any extension of credit requested to be made by it hereunder on
any date (including, without limitation, its initial extension of credit) is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by any Loan Party in or pursuant to the Loan Documents
shall be true and correct
54
in all material respects on and as of such date as if made on and as of
such date, except for such representations and warranties that are
expressly stated to relate to a specific earlier date.
(b) No Default. No Default or Event of Default shall have occurred
----------
and be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
Each borrowing or request for issuance of a Letter of Credit by the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 5.2 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect or any Loan or other amount is owing to any Lender or any Agent hereunder
(other than contingent indemnification and reimbursement obligations), the
Borrower shall and shall cause each of its Subsidiaries to:
6.1 Financial Statements. Furnish to each Agent and each Lender:
--------------------
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the
end of such year and the related audited consolidated statements of income
and of cash flows for such year, setting forth in each case in comparative
form the figures as of the end of and for the previous year, reported on
without a "going concern" or like qualification or exception, or
qualification arising out of the scope of the audit, by Deloitte & Touche
or other independent certified public accountants of nationally recognized
standing; and
(b) as soon as available, but in any event not later than 45 days
after the end of each of the first three quarterly periods of each fiscal
year of the Borrower, the unaudited consolidated balance sheet of the
Borrower and its consolidated Subsidiaries as at the end of such quarter
and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end
of such quarter, setting forth in each case in comparative form the figures
as of the end of and for the corresponding period in the previous year,
certified by a Responsible Officer as being fairly stated in all material
respects (subject to normal year-end audit adjustments);
all such financial statements to be complete and correct in all material
respects and to be prepared in reasonable detail and in accordance with
GAAP applied consistently throughout the periods reflected therein and with
prior periods (except as approved by such accountants or officer, as the
case may be, and disclosed therein).
55
6.2 Certificates; Other Information. Furnish to each Agent and each
-------------------------------
Lender, or, in the case of clause (d), to the relevant Lender:
(a) concurrently with the delivery of the financial statements
referred to in Section 6.1(a) (for fiscal years ending after the date of
this Agreement), a certificate of the independent certified public
accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained of any Default
or Event of Default, except as specified in such certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.1, (i) a certificate of a Responsible Officer stating
that, to the best of such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and
the other Loan Documents to which it is a party to be observed, performed
or satisfied by it, and that such Responsible Officer has obtained no
knowledge of any Default or Event of Default except as specified in such
certificate and (ii) in the case of quarterly or annual financial
statements, (x) a Compliance Certificate containing all information and
calculations necessary for determining compliance by the Borrower and its
Subsidiaries with the provisions of this Agreement referred to therein as
of the last day of the fiscal quarter or fiscal year of the Borrower, as
the case may be, and (y) to the extent not previously disclosed to the
Administrative Agent, a listing of any county or state within the United
States where any Loan Party keeps inventory or equipment and of any United
States Intellectual Property acquired by any Loan Party since the date of
the most recent list delivered pursuant to this clause (y) (or, in the case
of the first such list so delivered, since the Closing Date);
(c) within five days after the same are sent, copies of all financial
statements and reports that the Borrower sends to the holders of any class
of its debt securities or public equity securities and, within five days
after the same are filed, copies of all financial statements and reports
that the Borrower may make to, or file with, the SEC; and
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
----------------------
before maturity or before they become delinquent, as the case may be, all its
material obligations of whatever nature, except where the amount or validity
thereof is currently being contested in good faith by appropriate proceedings
and reserves in conformity with GAAP with respect thereto have been provided on
the books of the Borrower or its Subsidiaries, as the case may be, and provided
that, with respect to any such obligations that constitute Indebtedness, the
failure of the Borrower or any of its Subsidiaries so to pay, discharge or
otherwise satisfy such Indebtedness shall not be deemed to constitute
noncompliance with this Section so long as such failure shall not constitute an
Event of Default under Section 8(e).
56
6.4 Conduct of Business and Maintenance of Existence, etc. (a) (i)
-----------------------------------------------------
Preserve, renew and keep in full force and effect its corporate or other
existence and (ii) take all reasonable action to maintain all rights, privileges
and franchises necessary or desirable in the normal conduct of its business,
except, in each case, as otherwise permitted by Section 7.4 and except, in the
case of clause (ii) above, to the extent that failure to do so could not
reasonably be expected to have a Material Adverse Effect; and (b) comply with
all Contractual Obligations and Requirements of Law, except to the extent that
failure to comply therewith could not, in the aggregate, reasonably be expected
to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all Property and
----------------------------------
systems useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its Property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or a
similar business.
6.6 Inspection of Property; Books and Records; Discussions. (a) Keep
------------------------------------------------------
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities and (b) with
reasonable prior notice, permit representatives of any Lender to visit and
inspect any of its properties and examine and make abstracts (at the expense of
such Lender, unless an Event of Default shall be continuing) from any of its
books and records at any reasonable time and as often as may reasonably be
desired and to discuss the business, operations, properties and financial and
other condition of the Borrower and its Subsidiaries with officers of the
Borrower and its Subsidiaries and with its independent certified public
accountants, provided that so long as no Event of Default has occurred and is
continuing, such visits shall be coordinated with the Administrative Agent so
that in any twelve-month period no more than two such visits shall occur.
6.7 Notices. Promptly give notice to the Administrative Agent and
-------
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the
Borrower or any of its Subsidiaries and any Governmental Authority, that in
either case, if not cured or if adversely determined, as the case may be,
could reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting the Borrower or any of its
Subsidiaries in which the amount involved is $5,000,000 or more and not
covered by insurance or in which injunctive or similar relief is sought;
57
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section shall be accompanied by a written statement
of a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action the Borrower or the relevant Subsidiary proposes
to take with respect thereto.
6.8 Environmental Laws. (a) Comply in all material respects with, and
------------------
ensure compliance in all material respects by all tenants and subtenants, if
any, with, all applicable Environmental Laws, and obtain and comply in all
material respects with and maintain, and ensure that all tenants and subtenants
obtain and comply in all material respects with and maintain, any and all
licenses, approvals, notifications, registrations or permits required by
applicable Environmental Laws, except, in each case, to the extent that the
failure to do so could not reasonably be expected to have a Material Adverse
Effect.
(b) Conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws, except, in each case, to the extent that the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
6.9 Interest Rate Protection. In the case of the Borrower, within 180
------------------------
days after the Closing Date, enter into Hedge Agreements to the extent necessary
to provide that at least 50% of the aggregate principal amount of outstanding
Term Loans is subject to either a fixed interest rate or interest rate
protection for a period satisfactory to the Administrative Agent, which Hedge
Agreements shall have terms and conditions reasonably satisfactory to the
Administrative Agent.
6.10 Additional Collateral, etc. (a) With respect to any Property
--------------------------
constituting Specified Collateral acquired after the Closing Date by the
Borrower or any of its Domestic Subsidiaries (other than any Property described
in paragraph (b), (c) or (d) of this Section) as to which the Administrative
Agent, for the benefit of the Lenders, does not have a perfected Lien, promptly
(i) execute and deliver to the Administrative Agent such amendments to the
Guarantee and Collateral Agreement or such other documents as the Administrative
Agent reasonably deems necessary or advisable to grant to the Administrative
Agent, for the benefit of the Lenders, a security interest in such Property and
(ii) take all actions necessary or advisable to grant to the
58
Administrative Agent, for the benefit of the Lenders, a perfected first priority
security interest (subject, however, to Liens permitted by Section 7.3) in such
Property, including without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be reasonably requested by the
Administrative Agent.
(b) With respect to any fee interest in any real property
constituting Specified Collateral acquired after the Closing Date by the
Borrower or any of its Domestic Subsidiaries, promptly (i) execute and deliver a
first priority mortgage or deed of trust, as applicable (subject, however, to
Liens permitted hereunder) in favor of the Administrative Agent, for the benefit
of the Lenders, covering such real property, (ii) if requested by the
Administrative Agent, provide the Lenders with (x) title and extended coverage
insurance covering such real property in an amount at least equal to the
purchase price of such real property (or such other amount as shall be
reasonably specified by the Administrative Agent) as well as a current ALTA
survey thereof, together with a surveyor's certificate and (y) any consents or
estoppels reasonably deemed necessary or advisable by the Administrative Agent
in connection with such mortgage or deed of trust, each of the foregoing in form
and substance reasonably satisfactory to the Administrative Agent and (iii) if
requested by the Administrative Agent, deliver to the Administrative Agent legal
opinions relating to the matters described above, which opinions shall be in
form and substance, and from counsel, reasonably satisfactory to the
Administrative Agent.
(c) With respect to any new Subsidiary (other than an Excluded
Foreign Subsidiary) created or acquired after the Closing Date (which, for the
purposes of this paragraph, shall include any existing Subsidiary that ceases to
be an Excluded Foreign Subsidiary), by the Borrower or any of its Subsidiaries,
promptly (i) execute and deliver to the Administrative Agent such amendments to
the Guarantee and Collateral Agreement as the Administrative Agent reasonably
deems necessary or advisable to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest (subject to
Liens permitted by Section 7.3 that arise by operation of law) in the Capital
Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries, (ii) deliver to the Administrative Agent the certificates
representing such Capital Stock, together with undated stock powers, in blank,
executed and delivered by a duly authorized officer of the Borrower or such
Subsidiary, as the case may be, (iii) cause such new Subsidiary (A) to become a
party to the Guarantee and Collateral Agreement and (B) to take such actions
necessary or advisable to grant to the Administrative Agent for the benefit of
the Lenders a perfected first priority security interest (subject, however, to
Liens permitted by Section 7.3) in the Collateral (other than any such personal
property in respect of which the Administrative Agent determines that the cost
of obtaining a first priority security interest therein would be
disproportionate to the value of such security interest to the Lenders)
described in the Guarantee and Collateral Agreement with respect to such new
Subsidiary, including, without limitation, the filing of Uniform Commercial Code
financing statements in such jurisdictions as may be required by the Guarantee
and Collateral Agreement or by law or as may be reasonably requested by the
Administrative Agent, and (iv) if requested by the Administrative Agent, deliver
to the Administrative Agent legal opinions relating to the matters described
above, which opinions shall be in form and substance, and from counsel,
reasonably satisfactory to the Administrative Agent.
59
(d) With respect to any new Excluded Foreign Subsidiary created or
acquired after the Closing Date by the Borrower or any of its Subsidiaries
(other than any Excluded Foreign Subsidiaries), promptly (i) execute and deliver
to the Administrative Agent such amendments to the Guarantee and Collateral
Agreement or such other documents as the Administrative Agent reasonably deems
necessary or advisable in order to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest (subject to
Liens permitted by Section 7.3 that arise by operation of law) in the Capital
Stock of such new Subsidiary that is owned by the Borrower or any of its
Subsidiaries (other than any Excluded Foreign Subsidiaries), (provided that in
no event shall more than 65% of the total outstanding Capital Stock of any such
new Excluded Foreign Subsidiary be required to be so pledged), (ii) deliver to
the Administrative Agent the certificates, if any, representing such Capital
Stock, together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the Borrower or such Subsidiary, as the case may be,
and take such other action as may be necessary or, in the opinion of the
Administrative Agent, desirable to perfect the Lien of the Administrative Agent
thereon, and (iii) if requested by the Administrative Agent, deliver to the
Administrative Agent legal opinions relating to the matters described above,
which opinions shall be in form and substance, and from counsel, reasonably
satisfactory to the Administrative Agent.
6.11 Further Assurances. From time to time execute and deliver, or
------------------
cause to be executed and delivered, such additional instruments, certificates or
documents, and take all such actions, as the Administrative Agent may reasonably
request for the purposes of (i) implementing or effectuating the provisions of
this Agreement and the other Loan Documents, (ii) more fully perfecting or
renewing the rights of the Administrative Agent and the Lenders with respect to
the Collateral (or with respect to any additions thereto or replacements or
proceeds thereof or with respect to any other property or assets hereafter
acquired by the Borrower or any Subsidiary which may be deemed to be part of the
Collateral) pursuant hereto or thereto, or (iii) obtaining a perfected security
interest in any Capital Stock or Intellectual Property to the extent that the
perfection of such security interest is governed by the laws of a jurisdiction
outside the United States if the Administrative Agent determines that the cost
of obtaining such security interest would not be disproportionate to the value
of such security interest to the Lenders. Upon the exercise by the
Administrative Agent or any Lender of any power, right, privilege or remedy
pursuant to this Agreement or the other Loan Documents which requires any
consent, approval, recording, qualification or authorization of any Governmental
Authority, upon request by the Administrative Agent or such Lender, the Borrower
will execute and deliver, or will cause the execution and delivery of, all
applications, certifications, instruments and other documents and papers that
the Administrative Agent or such Lender may be required to obtain from the
Borrower or any of its Subsidiaries for such governmental consent, approval,
recording, qualification or authorization.
SECTION 7. NEGATIVE COVENANTS
The Borrower hereby agrees that, so long as the Commitments remain in
effect, any Letter of Credit remains outstanding or any Loan or other amount is
owing to any Lender or
60
any Agent hereunder (other than contingent indemnification and reimbursement
obligations), the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly:
7.1 Financial Condition Covenants.
-----------------------------
(a) Consolidated Fixed Charge Ratio. Permit the Consolidated Fixed
-------------------------------
Charge Ratio as at the last day of any period of four consecutive fiscal
quarters of the Borrower ending during any period set forth below to be less
than the ratio set forth opposite such period below:
Period Ratio
------ -----
07/01/03 - 06/30/04 1.50:1.00
thereafter 1.25:1.00
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage
---------------------------
Ratio as of the last day of any fiscal quarter of the Borrower ending during any
period set forth below to be greater than the ratio set forth opposite such
period below:
Period Ratio
------ -----
Closing Date - 06/30/00 6.50:1.00
07/01/00 - 06/30/01 6.00:1.00
07/01/01 - 06/30/02 5.00:1.00
thereafter 4.00:1.00
(c) Consolidated Interest Coverage Ratio. Permit the Consolidated
------------------------------------
Interest Coverage Ratio as of the last day of any period of four consecutive
fiscal quarters of the Borrower ending during any period set forth below to be
less than ratio set forth opposite such period below:
Period Ratio
------ -----
Closing Date - 06/30/00 1.75:1.00
07/01/00 - 06/30/01 2.25:1.00
thereafter 2.50:1.00
61
7.2 Limitation on Indebtedness. Create, incur, assume or suffer to
--------------------------
exist any Indebtedness, except:
(a) Indebtedness of any Loan Party pursuant to any Loan Document;
(b) Indebtedness of the Borrower to any Subsidiary and of any Wholly
Owned Subsidiary Guarantor to the Borrower or any other Subsidiary;
(c) Indebtedness of the Borrower in respect of the Borrower's (i) new
headquarters building and fixtures and furnishings located therein or
thereon and (ii) Capital Lease Obligations in an aggregate principal amount
not to exceed $50,000,000 at any one time outstanding;
(d) Indebtedness outstanding on the date hereof and listed on
Schedule 7.2(d) and any refinancings, refundings, renewals or extensions
thereof (without any increase in the principal amount thereof or any
shortening of the maturity of any principal amount thereof);
(e) Guarantee Obligations made in the ordinary course of business by
the Borrower or any of its Subsidiaries of (i) obligations of the Borrower
or any Wholly Owned Subsidiary Guarantor or (ii) any other Subsidiary,
subject to Section 7.17;
(f) subject to Section 7.17, loans or advances from the Borrower to
Foreign Subsidiaries in an aggregate amount outstanding together with
investments permitted under Section 7.8(i) not to exceed $20,000,000; and
(g) subordinated Indebtedness (having subordination terms reasonably
acceptable to the Required Lenders) in an aggregate principal amount of
$100,000,000.
7.3 Limitation on Liens. Create, incur, assume or suffer to exist
-------------------
any Lien upon any of its Property, whether now owned or hereafter acquired,
except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with
--------
respect thereto are maintained on the books of the Borrower or its
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, broker's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 30 days or that
are being contested in good faith by appropriate proceedings;
(c) pledges or deposits in connection with workers' compensation,
unemployment insurance and other social security legislation;
62
(d) deposits to secure the performance of bids, trade contracts
(other than for borrowed money), leases, statutory obligations, surety and
appeal bonds, performance bonds and other obligations of a like nature
incurred in the ordinary course of business;
(e) easements, rights-of-way, restrictions and other similar
encumbrances incurred in the ordinary course of business that, in the
aggregate, are not substantial in amount and which do not in any case
materially detract from the value of the Property subject thereto or
materially interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;
(f) Liens in existence on the date hereof listed on Schedule 7.3(f),
securing Indebtedness permitted by Section 7.2(d), provided that no such
--------
Lien is spread to cover any additional Property after the Closing Date and
that the amount of Indebtedness secured thereby is not increased;
(g) Liens on the Borrower's new headquarters building securing
Indebtedness of the Borrower incurred pursuant to Section 7.2(c);
(h) purchase money Liens on Indebtedness incurred pursuant to Section
7.2(c);
(i) Liens created pursuant to the Security Documents;
(j) judgment Liens not giving rise to an Event of Default; and
(k) any interest or title of a lessor under any lease entered into by
the Borrower or any other Subsidiary in the ordinary course of its business
and covering only the assets so leased.
7.4 Limitation on Fundamental Changes. Enter into any merger,
---------------------------------
consolidation or amalgamation, or liquidate, wind up or dissolve itself (or
suffer any liquidation or dissolution), or Dispose of all or substantially all
of its Property or business, except that:
(a) any Subsidiary of the Borrower may be merged or consolidated with
or into the Borrower (provided that the Borrower shall be the continuing or
--------
surviving corporation) or with or into any Subsidiary Guarantor (provided
--------
that (i) the Subsidiary Guarantor shall be the continuing or surviving
corporation or (ii) simultaneously with such transaction, the continuing or
surviving corporation shall become a Subsidiary Guarantor and the Borrower
shall comply with Section 6.10 in connection therewith), and any Foreign
Subsidiary may be merged or consolidated into any other Foreign Subsidiary;
and
(b) any Subsidiary of the Borrower may Dispose of any or all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or any
Subsidiary Guarantor and any Foreign Subsidiary may be liquidated; and
63
(c) Dispositions permitted under Section 7.5.
7.5 Limitation on Disposition of Property. Dispose of any of its
-------------------------------------
Property (including, without limitation, receivables and leasehold interests),
whether now owned or hereafter acquired, or, in the case of any Wholly-Owned
Subsidiary, issue or sell any shares of such Subsidiary's Capital Stock to any
Person, except:
(a) the Disposition of obsolete or worn out property in the ordinary
course of business;
(b) the sale of inventory in the ordinary course of business;
(c) Dispositions permitted by Section 7.4(a) and (b);
(d) the sale or issuance of any Subsidiary's Capital Stock to the
Borrower or any Wholly Owned Subsidiary Guarantor or directors' qualifying
shares;
(e) the Borrower may Dispose of the stock of Infonet Belgium, or
Infonet Belgium may Dispose of any or all of its assets;
(f) any Disposition involving NTC and Infonet Belgium;
(g) the sale by the Borrower of its data center facility in Maryland;
(h) any Recovery Event, provided, that the requirements of Section
--------
2.10(c) are complied with in connection therewith; and
(i) Dispositions of Cash Equivalents.
7.6 Limitation on Restricted Payments. Declare or pay any dividend
---------------------------------
on, or make any payment on account of, or set apart assets for a sinking or
other analogous fund for, the purchase, redemption, defeasance, retirement or
other acquisition of, any Capital Stock of the Borrower or any Subsidiary,
whether now or hereafter outstanding, or make any other distribution in respect
thereof, either directly or indirectly, whether in cash or property or in
obligations of the Borrower or any Subsidiary, or enter into any derivatives or
other transaction with any financial institution, commodities or stock exchange
or clearinghouse (a "Derivatives Counterparty") obligating the Borrower or any
------------------------
Subsidiary to make payments to such Derivatives Counterparty as a result of any
change in market value of any such Capital Stock (collectively, "Restricted
----------
Payments"), except that (i) if at the time and after giving effect thereto no
--------
Default or Event of Default shall have occurred or be continuing, the Borrower
or any of its Subsidiaries may make any such Restricted Payment provided that
the sum of such Restricted Payments shall not exceed $500,000 in the aggregate
while this Agreement is in effect and (ii) any Subsidiary may make Restricted
Payments to the Borrower or any Subsidiary Guarantor.
7.7 Limitation on Capital Expenditures. Make or commit to make any
----------------------------------
Capital Expenditure, except (a) for each fiscal period set forth below, Capital
Expenditures of the
64
Borrower and its Subsidiaries in the ordinary course of business not exceeding
the amount set forth opposite such fiscal period:
Period Capital Expenditures (millions)
------ -------------------------------
Closing Date - 06/30/00 $150
07/01/00 - 06/30/01 $150
07/01/01 - 06/30/02 $100
07/01/02 - 06/30/03 $100
07/01/03 - 06/30/04 $100
07/01/04 - 06/30/05 $100
; provided that (i) up to 100% of any such amount referred to above, if not so
--------
expended in the fiscal year for which it is permitted, may be carried over for
expenditure in the next fiscal year and (ii) Capital Expenditures made pursuant
to this clause (a) during any fiscal year shall be deemed made, first, in
-----
respect of amounts permitted for such fiscal year as provided above, and,
second, in respect of amounts carried over from the prior fiscal year pursuant
------
to subclause (i) above and (b) Capital Expenditures made with the proceeds of
any Reinvestment Deferred Amount.
7.8 Limitation on Investments. Make any advance, loan, extension of
-------------------------
credit (by way of guaranty or otherwise) or capital contribution to, or purchase
any Capital Stock, bonds, notes, debentures or other debt securities of, or any
assets constituting an ongoing business from, or make any other investment in,
any other Person (all of the foregoing, "Investments"), except:
-----------
(a) extensions of trade credit in the ordinary course of business;
(b) Investments in Cash Equivalents;
(c) Investments arising in connection with the incurrence of
Indebtedness permitted by Section 7.2(b) and (e);
(d) loans and advances to officers and employees of the Borrower or
any Subsidiaries of the Borrower in the ordinary course of business
(including, without limitation, for travel, entertainment and relocation
expenses) in an aggregate amount for the Borrower and Subsidiaries of the
Borrower not to exceed $3,000,000 at any one time outstanding;
(e) Investments (other than those relating to the incurrence of
Indebtedness permitted by Section 7.8(c)) by the Borrower or any of its
Subsidiaries in the Borrower or any Person that, prior to such Investment,
is a Subsidiary Guarantor;
65
(f) Investments on the date hereof;
(g) loans to officers and employees of Borrower and its Subsidiaries
for the purchase of shares of Borrower's Capital Stock in an aggregate
amount outstanding not to exceed $10,000,000;
(h) subject to Section 7.17, Investments in NTC in an aggregate
amount not to exceed $5,000,000 after the date hereof;
(i) Investments in Foreign Subsidiaries in an aggregate amount
together with Indebtedness permitted under Section 7.2(f) not to exceed
$20,000,000 after the date hereof;
(j) the Borrower may consummate the AUCS Transaction;
(k) Investments in assets useful in the Borrower's business made by
the Borrower or any of its Subsidiaries with the proceeds of any
Reinvestment Deferred Amount; and
(l) Investments received in respect of any Recovery Event.
7.9 Limitation on Transactions with Affiliates. Enter into any
------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of Property, the rendering of any service or the payment of any
management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Subsidiary Guarantor) unless such transaction is (a) otherwise
permitted or not prohibited under this Agreement, (b) in the ordinary course of
business of the Borrower or such Subsidiary, as the case may be, and (c) upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary,
as the case may be, than it would obtain in a comparable arm's length
transaction with a Person that is not an Affiliate; provided, however, that (i)
-------- -------
this Section shall not prohibit transactions otherwise permitted under this
Agreement, including the AUCS Transaction, or customary indemnification
obligations for officers and directors, and (ii) Borrower may enter into a
sale/leaseback transaction to purchase assets of NTC for a principal purchase
price not to exceed $5,000,000 in the aggregate.
7.10 Limitation on Sales and Leasebacks. Enter into any arrangement
----------------------------------
with any Person providing for the leasing by the Borrower or any Subsidiary of
real or personal property which has been or is to be sold or transferred by the
Borrower or such Subsidiary to such Person or to any other Person to whom funds
have been or are to be advanced by such Person on the security of such property
or rental obligations of the Borrower or such Subsidiary, other than (subject to
Section 7.17) any such arrangement between the Borrower and NTC involving a
principal amount not to exceed $5,000,000.
7.11 Limitation on Changes in Fiscal Periods. Permit the fiscal year
---------------------------------------
of the Borrower to end on a day other than the Friday nearest to March 31 or
December 31 or change the Borrower's method of determining fiscal quarters.
66
7.12 Limitation on Negative Pledge Clauses. Enter into or suffer to
-------------------------------------
exist or become effective any agreement that prohibits or limits the ability of
the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon any of its Property or revenues, whether now owned or
hereafter acquired, to secure the Obligations or, in the case of any guarantor,
its obligations under the Guarantee and Collateral Agreement, other than (a)
this Agreement and the other Loan Documents, (b) any agreements governing any
purchase money Liens or Capital Lease Obligations otherwise permitted hereby and
operating leases (in which case, any prohibition or limitation shall only be
effective against the assets financed thereby), (c) agreements existing as of
the date hereof and (d) customary anti-assignment clauses.
7.13 Limitation on Restrictions on Subsidiary Distributions. Enter
------------------------------------------------------
into or suffer to exist or become effective any consensual encumbrance or
restriction on the ability of any Subsidiary to (a) make Restricted Payments in
respect of any Capital Stock of such Subsidiary held by, or pay any Indebtedness
owed to, the Borrower or any other Subsidiary, (b) make Investments in the
Borrower or any other Subsidiary or (c) transfer any of its assets to the
Borrower or any other Subsidiary, except for such encumbrances or restrictions
existing under or by reason of (i) any restrictions existing under the Loan
Documents and (ii) any restrictions with respect to a Subsidiary imposed
pursuant to an agreement that has been entered into in connection with the
Disposition of all or substantially all of the Capital Stock or assets of such
Subsidiary.
7.14 Limitation on Lines of Business. Enter into any business, either
-------------------------------
directly or through any Subsidiary, except for those businesses in which the
Borrower and its Subsidiaries are engaged on the date of this Agreement or that
are reasonably related thereto.
7.15 Limitation on Hedge Agreements. Enter into any Hedge Agreement
------------------------------
other than Hedge Agreements entered into in the ordinary course of business, and
not for speculative purposes, to protect against changes in interest rates or
foreign exchange rates.
7.16 Structure of Future Acquisitions. Directly or indirectly,
--------------------------------
acquire, or permit any Subsidiary to acquire, any material tangible asset
located in the United States, unless such asset is acquired by or immediately
transferred to the Borrower or a Wholly Owned Subsidiary Guarantor, and the
Borrower or such Subsidiary complies with the requirements of Section 6.10 in
respect of such assets.
7.17 Limitation on Subsidiary Transactions. Make Investments after
-------------------------------------
the Closing Date in, or enter into Guarantee Obligations in respect of
Indebtedness and other Obligations of, any Subsidiary other than a Subsidiary
Guarantor, in an aggregate principal amount exceeding $5,000,000 while this
Agreement is in effect.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
67
(a) The Borrower shall fail to pay any principal of any Loan or
Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay any interest on any Loan or Reimbursement
Obligation, or any other amount payable hereunder or under any other Loan
Document, within five days after any such interest or other amount becomes
due in accordance with the terms hereof; or
(b) Any representation or warranty made or deemed made by any Loan
Party herein or in any other Loan Document or that is contained in any
certificate, document or financial or other statement furnished by it at
any time under or in connection with this Agreement or any such other Loan
Document shall prove to have been inaccurate in any material respect on or
as of the date made or deemed made or deemed furnished; or
(c) Any Loan Party shall default in the observance or performance of
any agreement contained in clause (i) or (ii) of Section 6.4(a) (with
respect to the Borrower only), Section 6.7(a) or Section 7; or
(d) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Loan Document
(other than as provided in paragraphs (a) through (c) of this Section), and
such default shall continue unremedied for a period of 30 days; or
(e) The Borrower or any of its Subsidiaries shall (i) default in
making any payment of any principal of any Indebtedness (including, without
limitation, any Guarantee Obligation, but excluding the Loans and
Reimbursement Obligations) on the scheduled or original due date with
respect thereto; or (ii) default in making any payment of any interest on
any such Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or (iii)
default in the observance or performance of any other agreement or
condition relating to any such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any other event
shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or beneficiary of such
Indebtedness (or a trustee or agent on behalf of such holder or
beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or to become
immediately subject to a mandatory offer to purchase by the obligor
thereunder or (in the case of any such Indebtedness constituting a
Guarantee Obligation) to become payable; provided, that a default, event or
--------
condition described in clause (i), (ii) or (iii) of this paragraph (e)
shall not at any time constitute an Event of Default unless, at such time,
one or more defaults, events or conditions of the type described in clauses
(i), (ii) and (iii) of this paragraph (e) shall have occurred and be
continuing with respect to Indebtedness the outstanding principal amount of
which exceeds in the aggregate $5,000,000; or
(f) (i) The Borrower or any of its Subsidiaries shall commence any
case, proceeding or other action (A) under any existing or future law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief
entered with respect to it, or seeking to
68
adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or the Borrower or
any of its Subsidiaries shall make a general assignment for the benefit of
its creditors; or (ii) there shall be commenced against the Borrower or any
of its Subsidiaries any case, proceeding or other action of a nature
referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains
undismissed, undischarged or unbonded for a period of 60 days; or (iii)
there shall be commenced against the Borrower or any of its Subsidiaries
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for
any such relief that shall not have been vacated, discharged, or stayed or
bonded pending appeal within 60 days from the entry thereof; or (iv) the
Borrower or any of its Subsidiaries shall take any action in furtherance
of, or indicating its consent to, approval of, or acquiescence in, any of
the acts set forth in clause (i), (ii), or (iii) above; or (v) the Borrower
or any of its Subsidiaries shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due;
or
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any
Plan, (ii) any "accumulated funding deficiency" (as defined in Section 302
of ERISA), whether or not waived, shall exist with respect to any Plan or
any Lien in favor of the PBGC or a Plan shall arise on the assets of the
Borrower or any Commonly Controlled Entity, (iii) a Reportable Event shall
occur with respect to, or proceedings shall commence to have a trustee
appointed, or a trustee shall be appointed, to administer or to terminate,
any Single Employer Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of
the Required Lenders, likely to result in the termination of such Plan for
purposes of Title IV of ERISA, (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, (v)the Borrower or any
Commonly Controlled Entity shall, or in the reasonable opinion of the
Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vi) above, such event
or condition, together with all other such events or conditions, if any,
could, in the sole good faith judgment of the Required Lenders, reasonably
be expected to have a Material Adverse Effect; or
(h) One or more judgments or decrees shall be entered against the
Borrower or any of its Subsidiaries involving for the Borrower and its
Subsidiaries taken as a whole a liability (to the extent not paid or fully
covered by insurance as to which the relevant insurance company has
acknowledged coverage) of $5,000,000 or more, and all such judgments or
decrees shall not have been vacated, discharged, stayed or bonded pending
appeal within 30 days from the entry thereof; or
69
(i) Any of the Security Documents shall cease, for any reason (other
than by reason of the express release thereof pursuant to Section 10.15),
to be in full force and effect, or any Loan Party or any Affiliate of any
Loan Party shall so assert in writing, or any Lien created by any of the
Security Documents on any material part of the Specified Collateral shall
cease to be enforceable and of the same effect and priority purported to be
created thereby; or
(j) The guarantee contained in Section 2 of the Guarantee and
Collateral Agreement shall cease, for any reason (other than by reason of
the express release thereof pursuant to Section 10.15), to be in full force
and effect or any Loan Party or any Affiliate of any Loan Party shall so
assert in writing; or
(k) The failure of any of the Original Investors, or any other
telecommunications company which acquires (whether through a merger, a
purchase of stock or assets, or any other similar transaction) an Original
Investor or any or all of the common stock of the Borrower held by an
Original Investor (so long as such telecommunications company is of a
stature similar to, and other long term senior unsecured debt ratings of
which by Standard & Poors Ratings Services and Xxxxx'x Investors Service,
Inc., are equal to or higher than, that of the acquired Original Investor
and so long as at least four of the Original Investors have not been so
acquired or transferred all of the Borrower's common stock owned by it as
of the Closing Date), or any of their respective Affiliates or any
combination thereof to (a) prior to an IPO, (i) own of record and
beneficially an amount of Capital Stock of the Borrower equal to at least
75% of the Capital Stock of the Borrower or (ii) have the ability to elect
a majority of the board of directors of the Borrower or to otherwise
control, directly or indirectly, through one or more intermediaries, the
Borrower and (b) after an IPO, (i) own of record and beneficially an amount
of Capital Stock of the Borrower equal to at least 51% of the Capital Stock
of the Borrower or (ii) have the ability to elect a majority of the board
of directors of the Borrower or to otherwise control, directly or
indirectly, through one or more intermediaries, the Borrower.
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Commitments shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under this
Agreement and the other Loan Documents (including, without limitation, all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Majority Revolving Credit Facility Lenders,
the Administrative Agent may, or upon the request of the Majority Revolving
Credit Facility Lenders, the Administrative Agent shall, by notice to the
Borrower declare the Revolving Credit Commitments to be terminated forthwith,
whereupon the Revolving Credit Commitments shall immediately terminate; and (ii)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to the Borrower, declare the Loans hereunder (with
70
accrued interest thereon) and all other amounts owing under this Agreement and
the other Loan Documents (including, without limitation, all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder) to be due and
payable forthwith, whereupon the same shall immediately become due and payable.
In the case of all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other Obligations of the Borrower hereunder and
under the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied and all other Obligations of the Borrower hereunder and under the
other Loan Documents (other than contingent indemnification and reimbursement
obligations) shall have been paid in full, the balance, if any, in such cash
collateral account shall be returned to the Borrower (or such other Person as
may be lawfully entitled thereto).
SECTION 9. THE AGENTS
9.1 Appointment. Each Lender hereby irrevocably designates and
-----------
appoints the Agents as the agents of such Lender under this Agreement and the
other Loan Documents, and each Lender irrevocably authorizes each Agent, in such
capacity, to take such action on its behalf under the provisions of this
Agreement and the other Loan Documents and to exercise such powers and perform
such duties as are expressly delegated to such Agent by the terms of this
Agreement and the other Loan Documents, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision to the contrary
elsewhere in this Agreement, no Agent shall have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document or otherwise exist against any Agent.
9.2 Delegation of Duties. Each Agent may execute any of its duties
--------------------
under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. No Agent shall be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
9.3 Exculpatory Provisions. Neither any Agent nor any of its
----------------------
officers, directors, employees, agents, attorneys-in-fact or affiliates shall be
(i) liable for any action lawfully taken or omitted to be taken by it or such
Person under or in connection with this Agreement or any other Loan Document
(except to the extent that any of the foregoing are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of
71
the Lenders for any recitals, statements, representations or warranties made by
any Loan Party or any officer thereof contained in this Agreement or any other
Loan Document or in any certificate, report, statement or other document
referred to or provided for in, or received by the Agents under or in connection
with, this Agreement or any other Loan Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or for any failure of any Loan Party a party thereto to
perform its obligations hereunder or thereunder. The Agents shall not be under
any obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party.
9.4 Reliance by Agents. Each Agent shall be entitled to rely, and
------------------
shall be fully protected in relying, upon any instrument, writing, resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including, without
limitation, counsel to the Loan Parties), independent accountants and other
experts selected by such Agent. The Agents may deem and treat the payee of any
Note as the owner thereof for all purposes unless such Note shall have been
transferred in accordance with Section 10.6 and all actions required by such
Section in connection with such transfer shall have been taken. Each Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders (or, if so specified by this Agreement,
all Lenders or any other instructing group of Lenders specified by this
Agreement) as it deems appropriate or it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense that may
be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement and the other Loan Documents in accordance
with a request of the Required Lenders (or, if so specified by this Agreement,
all Lenders or any other instructing group of Lenders specified by this
Agreement), and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Lenders and all future holders of the
Loans.
9.5 Notice of Default. No Agent shall be deemed to have knowledge or
-----------------
notice of the occurrence of any Default or Event of Default hereunder unless
such Agent shall have received notice from a Lender or the Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
shall receive such a notice, the Administrative Agent shall give notice thereof
to the Lenders and the Borrower. The Administrative Agent shall take such action
with respect to such Default or Event of Default as shall be reasonably directed
by the Required Lenders (or, if so specified by this Agreement, all Lenders or
any other instructing group of Lenders specified by this Agreement); provided
--------
that unless and until the Administrative Agent shall have received such
directions, the Administrative Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interests of the
Lenders.
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9.6 Non-Reliance on Agents and Other Lenders. Each Lender expressly
----------------------------------------
acknowledges that neither any of the Agents nor any of their respective
officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by any Agent
hereafter taken, including any review of the affairs of a Loan Party or any
affiliate of a Loan Party, shall be deemed to constitute any representation or
warranty by any Agent to any Lender. Each Lender represents to the Agents that
it has, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it has deemed appropriate, made
its own appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Loan Parties and their
affiliates and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon any Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the other Loan Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates. Except for notices, reports and other
documents expressly required to be furnished to the Lenders by the
Administrative Agent hereunder, no Agent shall have any duty or responsibility
to provide any Lender with any credit or other information concerning the
business, operations, property, condition (financial or otherwise), prospects or
creditworthiness of any Loan Party or any affiliate of a Loan Party that may
come into the possession of such Agent or any of its officers, directors,
employees, agents, attorneys-in-fact or affiliates.
9.7 Indemnification. The Lenders agree to indemnify the
---------------
Administrative Agent in its capacity as such (to the extent not reimbursed by
the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to their respective Aggregate Exposure Percentages in effect
on the date on which indemnification is sought under this Section (or, if
indemnification is sought after the date upon which the Commitments shall have
terminated and the Loans shall have been paid in full, ratably in accordance
with such Aggregate Exposure Percentages immediately prior to such date), for,
and to save the Administrative Agent harmless from and against, any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind whatsoever that may at any time
(including, without limitation, at any time following the payment of the Loans)
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of, the Commitments, this Agreement, any of the
other Loan Documents or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby or any action taken
or omitted by the Administrative Agent under or in connection with any of the
foregoing; provided that no Lender shall be liable for the payment of any
--------
portion of such liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements that are found by a final and
nonappealable decision of a court of competent jurisdiction to have resulted
from such Agent's gross negligence or willful misconduct. The agreements in this
Section shall survive the payment of the Loans and all other amounts payable
hereunder.
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9.8 Agent in Its Individual Capacity. Each Agent and its affiliates
--------------------------------
may make loans to, accept deposits from and generally engage in any kind of
business with any Loan Party as though such Agent were not an Agent. With
respect to its Loans made or renewed by it and with respect to any Letter of
Credit issued or participated in by it, each Agent shall have the same rights
and powers under this Agreement and the other Loan Documents as any Lender and
may exercise the same as though it were not an Agent, and the terms "Lender" and
"Lenders" shall include each Agent in its individual capacity.
9.9 Successor Agents. The Administrative Agent may resign as
----------------
Administrative Agent upon 30 days' notice to the Lenders and the Borrower. If
the Administrative Agent shall resign as Administrative Agent under this
Agreement and the other Loan Documents, then the Required Lenders shall appoint
from among the Lenders a successor agent for the Lenders, which successor agent
shall (unless an Event of Default under Section 8(a) or Section 8(f) with
respect to the Borrower shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. If no successor agent has accepted appointment as
Administrative Agent by the date that is 30 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective, and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Agent's resignation as Agent,
the provisions of this Section 9 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement and
the other Loan Documents.
9.10 Authorization to Release Liens and Guarantees. The Administrative
---------------------------------------------
Agent is hereby irrevocably authorized by each of the Lenders to effect any
release of Liens or guarantee obligations contemplated by Section 10.15.
9.11 The Arranger; the Documentation Agent. The Arranger, in its
-------------------------------------
capacity as such, shall have no duties or responsibilities, and shall incur no
liability, under this Agreement and the other Loan Documents. The Documentation
Agent, in its capacity as such, shall have no duties or responsibilities, and
shall incur no liability, under this Agreement and the other Loan Documents.
SECTION 10. MISCELLANEOUS
10.1 Amendments and Waivers. Neither this Agreement or any other Loan
----------------------
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Loan Party party to the relevant Loan Document may, or
(with the written consent of the Required Lenders)
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the Agents and each Loan Party party to the relevant Loan Document may, from
time to time, (a) enter into written amendments, supplements or modifications
hereto and to the other Loan Documents (including amendments and restatements
hereof or thereof) for the purpose of adding any provisions to this Agreement or
the other Loan Documents or changing in any manner the rights of the Lenders or
of the Loan Parties hereunder or thereunder or (b) waive, on such terms and
conditions as may be specified in the instrument of waiver, any of the
requirements of this Agreement or the other Loan Documents or any Default or
Event of Default and its consequences; provided, however, that no such waiver
-------- -------
and no such amendment, supplement or modification shall:
(i) forgive the principal amount or extend the final scheduled date of
maturity of any Loan or Reimbursement Obligation, extend the scheduled date
or change the amount of any amortization payment in respect of any Term
Loan, reduce the stated rate of any interest or fee payable hereunder or
extend the scheduled date of any payment thereof, or increase the amount or
extend the expiration date of any Revolving Credit Commitment or Delayed
Draw Term Loans Commitment of any Lender, in each case without the consent
of each Lender directly affected thereby;
(ii) amend, modify or waive any provision of this Section or Section
10.6(a) or reduce any percentage specified in the definition of Required
Lenders or Required Prepayment Lenders, consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, release all or substantially all of
the Collateral or release all or substantially all of the Subsidiary
Guarantors from their guarantee obligations under the Guarantee and
Collateral Agreement, in each case without the consent of all Lenders;
(iii) amend, modify or waive any condition precedent to any extension of
credit under the Delayed Draw Term Loan Facility or Revolving Credit
Facility set forth in Section 5.2 (including, without limitation, the
waiver of an existing Default or Event of Default required to be waived
solely in order for such extension of credit to be made) without the
consent of any Majority Facility Lenders with respect to the Delayed Draw
Term Loan Facility or any Majority Revolving Credit Facility Lenders, as
the case may be;
(iv) reduce the percentage specified in the definition of Majority Facility
Lenders with respect to any Facility without the written consent of all
Lenders under such Facility;
(v) amend, modify or waive any provision of Section 9 without the consent
of any Agent directly affected thereby;
(vi) amend, modify or waive any provision of Section 2.10 or 2.16 without
the consent of each Lender directly affected thereby; or
(vii) amend, modify or waive any provision of Section 3 without the consent
of each Issuing Lender affected thereby.
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Any such waiver and any such amendment, supplement or modification shall apply
equally to each of the Lenders and shall be binding upon the Loan Parties, the
Lenders, the Administrative Agent and all future holders of the Loans. In the
case of any waiver, the Loan Parties, the Lenders and the Administrative Agent
shall be restored to their former position and rights hereunder and under the
other Loan Documents, and any Default or Event of Default waived shall be deemed
to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default, or impair any right consequent
thereon. Any such waiver, amendment, supplement or modification shall be
effected by a written instrument signed by the parties required to sign pursuant
to the foregoing provisions of this Section; provided, that delivery of an
--------
executed signature page of any such instrument by facsimile transmission shall
be effective as delivery of a manually executed counterpart thereof.
10.2 Notices. All notices, requests and demands to or upon the
-------
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed (a) in the case of the Borrower and the Agents, as follows
and (b) in the case of the Lenders, as set forth in an administrative
questionnaire delivered to the Administrative Agent or, in the case of a Lender
which becomes a party to this Agreement pursuant to an Assignment and
Acceptance, in such Assignment and Acceptance or (c) in the case of any party,
to such other address as such party may hereafter notify to the other parties
hereto:
The Borrower: Infonet Services Corporation
0000 Xxxx Xxxxx Xxxxxx (prior to 12/1/99)
0000 Xxxx Xxxxx Xxxxxx (on and after 12/1/99)
Xx Xxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Chief Financial Officer
The Administrative Agent: The Bank of Nova Scotia
New York Agency
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Tel: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx Xxxxxx
with a copy to:
Xxxxxxx Xxxxx Capital Corporation
World Financial Center, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Telephone: 000-000-0000
Fax: 000-000-0000
Attention: Xxxx Lucid
The Issuing Lender: As notified by such Issuing Lender to the
Administrative Agent and the Borrower
provided that any notice, request or demand to or upon any Agent, the Issuing
--------
Lender or any Lender shall not be effective until received.
10.3 No Waiver; Cumulative Remedies. No failure to exercise and no
------------------------------
delay in exercising, on the part of any Agent or any Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
10.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans and other extensions of credit hereunder.
10.5 Payment of Expenses. The Borrower agrees (a) to pay or
-------------------
reimburse the Agents for all their reasonable out-of-pocket costs and expenses
incurred in connection with the syndication of the Facilities (other than fees
payable to syndicate members), development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements and other charges of counsel to the Administrative Agent, (b) to
pay or reimburse each Lender and the Agents for all their costs and expenses
incurred in connection with the enforcement or preservation (including pursuant
to a "workout") of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the fees and
disbursements of counsel (including the allocated fees and disbursements and
other charges of in-house counsel) to each Lender and of counsel to the Agents,
(c) to pay, indemnify, or reimburse each Lender and the Agents for, and hold
each Lender and the Agents harmless from, any and all recording and filing fees
and any and all liabilities with respect to, or resulting from any delay in
paying, stamp, excise and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Loan Documents and any such other
documents, and (d) to pay, indemnify or reimburse each Lender, each Agent, their
respective affiliates, and their respective officers, directors, trustees,
employees, advisors, agents and controlling persons (each, an "Indemnitee") for,
----------
and hold each
77
Indemnitee harmless from and against any and all other liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement, the
other Loan Documents and any such other documents, including, without
limitation, any of the foregoing relating to the use of proceeds of the Loans or
the violation of, noncompliance with or liability under, any Environmental Law
applicable to the operations of the Borrower or any of its Subsidiaries or any
of the Properties and the fees and disbursements and other charges of legal
counsel in connection with claims, actions or proceedings by any Indemnitee
against the Borrower hereunder (all the foregoing in this clause
(d), collectively, the "Indemnified Liabilities"), provided, that the Borrower
----------------------- --------
shall have no obligation hereunder to any Indemnitee with respect to Indemnified
Liabilities to the extent such Indemnified Liabilities resulted from the gross
negligence or willful misconduct of such Indemnitee. Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrower agrees
not to assert and to cause its Subsidiaries not to assert, and hereby waives and
agrees to cause its Subsidiaries so to waive, all rights for contribution or any
other rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them might have by
statute or otherwise against any Indemnitee, except with respect to any of the
foregoing arising out of the gross negligence or willful misconduct of such
Indemnitee. All amounts due under this Section shall be payable not later than
30 days after written demand therefor. Statements payable by the Borrower
pursuant to this Section shall be submitted to the Borrower in accordance with
Section 10.2, or to such other Person or address as may be hereafter designated
by the Borrower in a written notice to the Administrative Agent. The agreements
in this Section shall survive repayment of the Loans and all other amounts
payable hereunder.
10.6 Successors and Assigns; Participations and Assignments. (a)
------------------------------------------------------
This Agreement shall be binding upon and inure to the benefit of the Borrower,
the Lenders, the Agents, all future holders of the Loans and their respective
successors and assigns, except that the Borrower may not assign or transfer any
of its rights or obligations under this Agreement without the prior written
consent of the Agents and each Lender.
(b) Any Lender may, without the consent of the Borrower, in
accordance with applicable law, at any time sell to one or more banks, financial
institutions or other entities (each, a "Participant") participating interests
-----------
in any Loan owing to such Lender, any Commitment of such Lender or any other
interest of such Lender hereunder and under the other Loan Documents. In the
event of any such sale by a Lender of a participating interest to a Participant,
such Lender's obligations under this Agreement to the other parties to this
Agreement shall remain unchanged, such Lender shall remain solely responsible
for the performance thereof, such Lender shall remain the holder of any such
Loan for all purposes under this Agreement and the other Loan Documents, and the
Borrower and the Agents shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement and the other Loan Documents. In no event shall any Participant under
any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would require the consent of all Lenders pursuant to Section 10.1. The
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Borrower agrees that if amounts outstanding under this Agreement and the Loans
are due or unpaid, or shall have been declared or shall have become due and
payable upon the occurrence of an Event of Default, each Participant shall, to
the maximum extent permitted by applicable law, be deemed to have the right of
setoff in respect of its participating interest in amounts owing under this
Agreement to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under this Agreement, provided that, in
--------
purchasing such participating interest, such Participant shall be deemed to have
agreed to share with the Lenders the proceeds thereof as provided in Section
10.7(a) as fully as if such Participant were a Lender hereunder. The Borrower
also agrees that each Participant shall be entitled to the benefits of Sections
2.17, 2.18 and 2.19 with respect to its participation in the Commitments and the
Loans outstanding from time to time as if such Participant were a Lender;
provided that, in the case of Section 2.18, such Participant shall have complied
--------
with the requirements of said Section, and provided, further, that no
-------- -------
Participant shall be entitled to receive any greater amount pursuant to any such
Section than the transferor Lender would have been entitled to receive in
respect of the amount of the participation transferred by such transferor Lender
to such Participant had no such transfer occurred.
(c) Any Lender (an "Assignor") may, in accordance with applicable law
--------
and upon written notice to the Administrative Agent, at any time and from time
to time assign to any Lender, any affiliate thereof or a Related Fund of any
Lender or, with the consent of the Borrower and the Administrative Agent and, in
the case of any Assignment of the Revolving Credit Commitments, the written
consent of each then Issuing Lender (which, in each case, shall not be
unreasonably withheld or delayed), to an additional bank, financial institution
or other entity (an "Assignee") all or any part of its rights and obligations
--------
under this Agreement pursuant to an Assignment and Acceptance, substantially in
the form of Exhibit E, executed by such Assignee and such Assignor (and, where
the consent of the Borrower, the Administrative Agent or the then Issuing
Lenders is required pursuant to the foregoing provisions, by the Borrower and
such other Persons) and delivered to the Administrative Agent for its acceptance
and recording in the Register; provided that no such assignment to an Assignee
--------
(other than any Lender or any affiliate or a Related Fund thereof) shall be in
an aggregate principal amount of less than $5,000,000 (other than in the case of
an assignment of all of a Lender's interests under this Agreement), unless
otherwise agreed by the Borrower, and the Administrative Agent. Any such
assignment need not be ratable as among the Facilities. Upon such execution,
delivery, acceptance and recording, from and after the effective date determined
pursuant to such Assignment and Acceptance, (x) the Assignee thereunder shall be
a party hereto and, to the extent provided in such Assignment and Acceptance,
have the rights and obligations of a Lender hereunder with Commitments and/or
Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Assignment and Acceptance, be released from its obligations
under this Agreement (and, in the case of an Assignment and Acceptance covering
all of an Assignor's rights and obligations under this Agreement, such Assignor
shall cease to be a party hereto, except as to Section 2.17, 2.18 and 10.5 in
respect of the period prior to such effective date). Notwithstanding any
provision of this Section, the consent of the Borrower shall not be required for
any assignment that occurs at any time when any Event of Default shall have
occurred and be continuing.
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(d) The Administrative Agent shall, on behalf of the Borrower,
maintain at its address referred to in Section 10.2 a copy of each Assignment
and Acceptance delivered to it and a register (the "Register") for the
--------
recordation of the names and addresses of the Lenders and the Commitments of,
and principal amount of the Loans owing to, each Lender from time to time. The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, each Agent and the Lenders shall treat each Person whose name
is recorded in the Register as the owner of the Loans and any Note evidencing
such Loans recorded therein for all purposes of this Agreement. Any assignment
of any Loan, whether or not evidenced by a Note, shall be effective only upon
appropriate entries with respect thereto being made in the Register (and each
Note shall expressly so provide). Any assignment or transfer of all or part of a
Loan evidenced by a Note shall be registered on the Register only upon surrender
for registration of assignment or transfer of the Note evidencing such Loan,
accompanied by a duly executed Assignment and Acceptance; thereupon one or more
new Notes in the same aggregate principal amount shall be issued to the
designated Assignee, and the old Notes shall be returned by the Administrative
Agent to the Borrower marked "canceled". The Register shall be available for
inspection by the Borrower or any Lender (with respect to any entry relating to
such Lender's Loans) at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
Assignor and an Assignee (and, in any case where the consent of any other Person
is required by Section 10.6(c), by each such other Person) together with payment
to the Administrative Agent of a registration and processing fee of $3,500
(except that no such registration and processing fee shall be payable in the
case of (i) an Assignee which is already a Lender or is an affiliate of a
Lender, a Related Fund of a Lender or a Person under common management with a
Lender and (ii) an Assignee of the Arranger), the Administrative Agent shall (i)
promptly accept such Assignment and Acceptance and (ii) on the effective date
determined pursuant thereto record the information contained therein in the
Register and give notice of such acceptance and recordation to the Lenders, the
Agents and the Borrower. On or prior to such effective date, the Borrower, at
its own expense, upon request, shall execute and deliver to the Administrative
Agent (in exchange for the Note of the assigning Lender) a new Note to such
Assignee or its registered assigns in an amount equal to the Revolving Credit
Commitment and/or, prior to the Delayed Draw Termination Date, the Available
Delayed Draw Term Loan Commitment, and/or applicable Term Loans, as the case may
be, assumed or acquired by it pursuant to such Assignment and Acceptance and, if
the Assignor has retained a Revolving Credit Commitment and/or, prior to the
Delayed Draw Termination Date, any Available Delayed Draw Term Loan Commitment,
and/or applicable Term Loans, as the case may be, upon request, a new Note to
the order of the Assignor in an amount equal to the Revolving Credit Commitment
and/or prior to the Delayed Draw Termination Date, the Available Delayed Draw
Term Loan Commitment, and/or applicable Term Loans, as the case may be, retained
by it hereunder. Such new Note or Notes shall be dated the effective date of the
applicable Assignment and Acceptance and shall otherwise be in the form of the
Note or Notes replaced thereby.
(f) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests,
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including, without limitation, any pledge or assignment by a Lender of any Loan
or Note to any Federal Reserve Bank in accordance with applicable law. Any
Lender that is a fund that invests in bank loans may pledge all or any portion
of its rights in connection with this Agreement to the trustee for holders of
obligations owed, or securities issued, by such fund as security for such
obligations or securities, provided, that any foreclosure or other exercise of
remedies by such trustee shall be subject to the provisions of this Section 10.6
regarding assignment in all respects. No pledge described in the immediately
preceding clause shall release such Lender from its obligations hereunder.
10.7 Adjustments; Set-off. (a) Except to the extent that this
--------------------
Agreement provides for payments to be allocated to a particular Lender or to the
Lenders under a particular Facility, if any Lender (a "Benefitted Lender") shall
-----------------
at any time receive any payment of all or part of the Obligations owing to it,
or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 8(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Obligations, such Benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such portion of each
such other Lender's Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any portion of such
-------- -------
excess payment or benefits is thereafter recovered from such Benefitted Lender,
such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to the Borrower, any
such notice being expressly waived by the Borrower to the extent permitted by
applicable law, upon any amount becoming due and payable by the Borrower
hereunder (whether at the stated maturity, by acceleration or otherwise), to set
off and appropriate and apply against such amount any and all deposits (general
or special, time or demand, provisional or final), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of the Borrower. Each Lender agrees promptly to notify
the Borrower and the Administrative Agent after any such setoff and application
made by such Lender, provided that the failure to give such notice shall not
--------
affect the validity of such setoff and application.
10.8 Counterparts. This Agreement may be executed by one or more of
------------
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
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10.9 Severability. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10 Integration. This Agreement and the other Loan Documents
-----------
represent the entire agreement of the Borrower, the Agents, the Arranger and the
Lenders with respect to the subject matter hereof and thereof, and there are no
promises, undertakings, representations or warranties by the Arranger, any Agent
or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Loan Documents.
10.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12 Submission To Jurisdiction; Waivers. The Borrower hereby
-----------------------------------
irrevocably and unconditionally:
(a) submits for itself and its Property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which
it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to the
Borrower at its address set forth in Section 10.2 or at such other address
of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, punitive or consequential damages.
82
10.13 Acknowledgments. The Borrower hereby acknowledges that:
---------------
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Arranger, any Agent nor any Lender has any fiduciary
relationship with or duty to the Borrower arising out of or in connection
with this Agreement or any of the other Loan Documents, and the
relationship between the Arranger, the Agents and the Lenders, on one hand,
and the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Arranger, the Agents and the Lenders or among the Borrower and the
Lenders.
10.14 Confidentiality. Each of the Agents and the Lenders agrees to
---------------
keep confidential all non-public information provided to it by any Loan Party
pursuant to this Agreement; provided that nothing herein shall prevent any Agent
--------
or any Lender from disclosing any such information (a) to the Arranger, any
Agent, any other Lender or any Affiliate of any thereof which agrees to maintain
confidentiality, (b) to any Participant or Assignee (each, a "Transferee") or
----------
prospective Transferee that agrees to comply with the provisions of this
Section, (c) to any of its employees, directors, agents, attorneys, accountants
and other professional advisors, (d) to any financial institution that is a
direct or indirect contractual counterparty in swap agreements or such
contractual counterparty's professional advisor (so long as such contractual
counterparty or professional advisor to such contractual counterparty agrees to
be bound by the provisions of this Section), (e) upon the request or demand of
any Governmental Authority having jurisdiction over it, (f) in response to any
order of any court or other Governmental Authority or as may otherwise be
required pursuant to any Requirement of Law, (g) in connection with any
litigation or similar proceeding in respect of the Loan Documents or any
transaction contemplated thereby, (h) that has been publicly disclosed other
than in breach of this Section, (i) to the National Association of Insurance
Commissioners or any similar organization or any nationally recognized rating
agency that requires access to information about a Lender's investment portfolio
in connection with ratings issued with respect to such Lender or (j) in
connection with the exercise of any remedy hereunder or under any other Loan
Document.
10.15 Release of Collateral and Guarantee Obligations.
-----------------------------------------------
(a) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, upon request of the Borrower in connection with
any Disposition of Property permitted by the Loan Documents, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender, or any affiliate of any Lender that is a party to any Specified
Hedge Agreement) take such actions as shall be required to release its
security interest in any Collateral being Disposed of in such Disposition,
and to release any guarantee obligations under any Loan Document of any
Person being Disposed of in
83
such Disposition, to the extent necessary to permit consummation of such
Disposition in accordance with the Loan Documents.
(b) Notwithstanding anything to the contrary contained herein or any
other Loan Document, when all principal and interest and all other
Obligations then due and payable (other than Obligations in respect of any
Specified Hedge Agreement and contingent indemnification and reimbursement
obligations) have been paid in full, all Commitments have terminated or
expired and no Letter of Credit shall be outstanding, upon request of the
Borrower, the Administrative Agent shall (without notice to, or vote or
consent of, any Lender, or any affiliate of any Lender that is a party to
any Specified Hedge Agreement) take such actions as shall be required to
release its security interest in all Collateral, and to release all
guarantee obligations under any Loan Document, whether or not on the date
of such release there may be outstanding Obligations in respect of
Specified Hedge Agreements. Any such release of guarantee obligations shall
be deemed subject to the provision that such guarantee obligations shall be
reinstated if after such release any portion of any payment in respect of
the Obligations guaranteed thereby shall be rescinded or must otherwise be
restored or returned upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of the Borrower or any Subsidiary Guarantor,
or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any
Subsidiary Guarantor or any substantial part of its property, or otherwise,
all as though such payment had not been made.
10.16 Accounting Changes. In the event that any "Accounting Change"
------------------
(as defined below) shall occur and such change results in a change in the method
of calculation of financial covenants, standards or terms in this Agreement,
then the Borrower and the Administrative Agent shall enter into negotiations in
order to amend such provisions of this Agreement so as to equitably reflect such
Accounting Change with the desired result that the criteria for evaluating the
Borrower's financial condition shall be the same after such Accounting Change as
if such Accounting Change had not been made. Until such time as such an
amendment shall have been executed and delivered by the Borrower, the
Administrative Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Change had not occurred. "Accounting Change"
refers to changes in accounting principles required by the promulgation of any
rule, regulation, pronouncement or opinion by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.
10.17 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE
---------------------
LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND
FOR ANY COUNTERCLAIM THEREIN.
10.18 Limitation of Interest. It is the intent of the Borrower and
----------------------
the Lenders in the execution and performance of this Agreement and all matters
incidental and related hereto and the other Loan Documents or any agreement or
instrument executed in connection herewith
84
or therewith or with any Indebtedness of the Borrower to the Lenders to remain
in strict compliance with all laws applicable to the Lenders from time to time
in effect, including, without Limitation, usury laws. In furtherance hereof, the
Borrower and the Lenders stipulate and agree that none of the terms and
provisions contained in or pertaining to this Agreement or in the other Loan
Documents or any other agreement or instrument ("Other Agreement") executed in
---------------
connection herewith or with any Indebtedness of the Borrower to the Lenders
shall ever be construed to create a contract to pay for the use, forbearance or
detention of money with interest at a rate or in an amount in excess of the
maximum amount of interest permitted to be charged by the Lenders under all laws
in effect and applicable to the Lenders (the "Maximum Rate"). For purposes of
------------
this Agreement and the Notes, "interest" shall include the aggregate of all
amounts which constitute or are deemed to constitute interest under the
respective laws in effect and applicable to the Lenders that are contracted for,
chargeable, receivable (whether received or deemed to have been received) or
taken under this Agreement or the Notes or any Other Agreement. The Borrower
shall not be required to pay interest hereunder or on any Note or any Other
Agreement at a rate or in an amount in excess of the Maximum Rate with respect
to the Lenders or the maximum amount of interest that may be lawfully charged by
the Lenders under any law which is in effect and applicable to the Lenders, and
the provisions of this Section 10.18 shall control over all other provisions of
this Agreement and the Notes or any Other Agreement which may be in apparent
conflict herewith. If the effective rate or amount of interest which would
otherwise be payable under this Agreement or any Note or any Other Agreement, or
all of them, would exceed the Maximum Rate for the Lenders or the maximum amount
of interest the Lenders or any holder of any Note or any Other Agreement is
allowed by the relevant applicable law to charge, contract for, take or receive
or in the event the Lenders or any holder of any Note or any Other Agreement
shall charge, contract for, take or receive monies that are deemed to constitute
interest which could, in the absence of this provision, increase the effective
rate or amount of interest payable under this Agreement or any Note or any Other
Agreement, or all of them, to a rate or amount in excess of that permitted to be
charged, contracted for, taken or received under the applicable laws then in
effect with respect to the Lenders, then the principal amount of the Notes or
the obligations of the Borrower to the Lenders under this Agreement, the Notes
or any Other Agreement or the amount of interest which would otherwise be
payable to or for the account of the Lenders under this Agreement or the Notes
or any Other Agreement or all of them, shall be reduced to the amount allowed
under said laws as now or hereafter construed by the courts having jurisdiction,
and all such monies so charged, contracted for, or received that are deemed to
constitute interest in excess of the Maximum Rate for the Lenders or maximum
amount of interest permitted by the relevant applicable laws shall be
immediately returned to or credited to the account of the Company upon such
determination. In determining whether the interest paid or payable under any
specific contingency exceed the Maximum Rate, the Borrower and the Lenders
shall, to the maximum extent permitted by applicable law, (i) characterize any
non-principal payment as an expense, fee (excluding attorneys' and accountants'
fees) or premium rather than interest and (ii) amortize, prorate, allocate and
spread, in equal parts during the full term of the relevant Note, all interest
at any time contracted for, charged or received in connection with the relevant
Note.
85
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
INFONET SERVICES CORPORATION
By:___________________________________
Name:
Title:
86
XXXXXXX XXXXX & CO., as Lead Arranger,
Book Manager and Syndication Agent
By:___________________________________
Name:
Title:
XXXXXXX XXXXX CAPITAL CORPORATION,
as Lender
By:___________________________________
Name:
Title:
00
XXX XXXX XX XXXX XXXXXX, as a Lender and
as Administrative Agent
By:___________________________________
Name:
Title:
SOCIETE GENERALE, as a Lender and as
Documentation Agent
By:___________________________________
Name:
Title:
88
ABN AMRO BANK N.V.
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
89
BANQUE PARIBAS
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
00
XXXXXXXXXX XXXX-XXX XXXXXXXXXXX XX,
Xxx Xxxx Branch
By:___________________________________
Name:
Title:
By:___________________________________
Name:
Title:
91
FLEET BANK, N.A.
By:___________________________________
Name:
Title:
92
XXXXXXX SACHS CREDIT PARTNERS L.P.
By:___________________________________
Name:
Title:
00
XXX XXXX XX XXXX XXXXXX
By: ____________________________________
Name:
Title:
94
GALAXY CLO 1999-1, LTD.
By: SAI INVESTMENT ADVISER, Inc., as its
Collateral Manager
By: _____________________________________
Name:
Title:
95
THE FUJI BANK, Ltd.
By: _____________________________________
Name:
Title:
96
UBS AG, Stamford Branch
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
97
PILGRIM CAPITAL CORP
By: ______________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
98
XXXXXX XXXXXXX XXXX XXXXXX PRIME
INCOME TRUST
By: _____________________________________
Name:
Title:
99
KZH SOLEIL-2 LLC
By: ____________________________________
Name:
Title:
000
XX XXXXXXXXX XXXXXXXXXXXX XXXX XX
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
101
CITICORP USA, INC.
By: ______________________________________
Name:
Title:
102
SOCIETE GENERALE
By: ______________________________________
Name:
Title:
103
ARCHIMEDES FUNDING, L.L.C.
By: ING Capital Advisors LLC
as Collateral Manager
By: ______________________________________
Name:
Title:
104
ING HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDINGS, LDC.,
By: ING Capital Advisors LLC
As Investment Advisor
By: _____________________________________
Name:
Title:
105
SEQUILS- ING(HBDGM), LTD.
By: ING Capital Advisors LLC,
Collateral Manager and
Authorized Signatory
By: ______________________________________
Name:
Title:
106
XXXXXX COMMERCIAL PAPER, INC.
By: ______________________________________
Name:
Title:
ANNEX A
LENDERS AND COMMITMENTS
DELAYED DRAW TRANCHE B TERM REVOLVING
LENDER TERM LOAN LOAN CREDIT
------ COMMITMENT COMMITMENT COMMITMENT
---------- ---------- ----------
Xxxxxxx Xxxxx Capital Corporation $ 10,750,000 $ 7,000,000 $ 10,750,000
The Bank of Nova Scotia 10,250,000 --0-- 10,250,000
Societe Generale 10,250,000 --0-- 10,250,000
ABN AMRO Bank N.A. 8,500,000 --0-- 8,500,000
Citicorp USA, Inc. 8,500,000 --0-- 8,500,000
Xxxxxxx Sachs Credit Partners L.P. 8,500,000 --0-- 8,500,000
Xxxxxx Commercial Paper Inc. 8,500,000 --0-- 8,500,000
UBS AG, Stamford Branch 8,500,000 --0-- 8,500,000
De Nationale Investerings Bank 8,250,000 --0-- 8,250,000
Fleet Bank N.A. 6,000,000 --0-- 6,000,000
Bayerische Hypo- Und Vereinsbank 6,000,000 3,000,000 6,000,000
AG, New York Branch
The Fuji Bank, Ltd. 6,000,000 --0-- 6,000,000
Galaxy CLO 1999-1, Ltd. --0-- 8,500,000 --0--
KZH Soleil-2 LLC --0-- 5,000,000 --0--
Archimedes Funding L.L.C. --0-- 3,500,000 --0--
ING High Income Principal --0-- 5,000,000 --0--
Preservation Fund Holding, LDC
Sequils-ING I (HBDGM), Ltd. --0-- 5,000,000 --0--
Xxxxxx Xxxxxxx Xxxx Xxxxxx Prime --0-- 10,000,000 --0--
Income Trust
Pilgrim Prime Rate Trust --0-- 3,000,000 --0--
--------------- -------------- ---------------
Total $100,000,000.00 $50,000,000.00 $100,000,000.00
Total Commitments $250,000,000.00
Annex A-1
---------
PRICING GRID FOR REVOLVING CREDIT LOANS
=================================================================================
Consolidated Leverage Applicable Margin Applicable Margin for Base
Ratio for Eurodollar Loans Rate Loans
**5.00 : 1.00 2.50% 1.50%
**4.50 : 1.00 2.25% 1.25%
**4.00 : 1.00 2.00% 1.00%
**3.50 : 1.00 1.75% .75%
*3.50 : 1.00 1.50% .50%
=================================================================================
** greater than or equal to
* less than
Changes in the Applicable Margin with respect to Revolving Credit Loans
resulting from changes in the Consolidated Leverage Ratio shall become effective
on the date (the "Adjustment Date") on which financial statements are delivered
---------------
to the Administrative Agent pursuant to Section 6.1 (but in any event not later
than the 45th day after the end of each of the first three quarterly periods of
each fiscal year or the 90th day after the end of each fiscal year, as the case
may be) and shall remain in effect until the next change to be effected pursuant
to this paragraph. If any financial statements referred to above are not
delivered within the time periods specified above, then, until such financial
statements are delivered, the Consolidated Leverage Ratio as at the end of the
fiscal period that would have been covered thereby shall for the purposes of
this definition be deemed to be greater than 5.00 to 1. Each determination of
the Consolidated Leverage Ratio pursuant to this Pricing Grid shall be made for
the periods and in the manner contemplated by Section 7.1(b).
SCHEDULE 4.15
SUBSIDIARIES
SCHEDULE 4.21(b)
EXISTING FCC AUTHORIZATIONS, STATE AND FOREIGN PERMITS, ETC .
SCHEDULE 4.21(c)
INVESTIGATIONS AND PROCEEDINGS
SCHEDULE 4.21(d)
MATTERS AFFECTING FCC AUTHORIZATIONS, STATE AND FOREIGN PERMITS, ETC.
SCHEDULE 4.22-1
UCC FILING JURISDICTIONS
SCHEDULE 4.22-2
UCC FILING STATEMENTS TO REMAIN ON FILE
SCHEDULE 4.22-3
UCC FILING STATEMENTS TO BE TERMINATED
SCHEDULE 7.2(d)
EXISTING INDEBTEDNESS
SCHEDULE 7.3(f)
EXISTING LIENS
